Each
set of counsel, appearing before the international court of justice at
The Hague, largely avoided the most powerful evidence contradicting
their case, and the absence of a factual hearing or any questioning left
it unclear how the judges will resolve the dispute. Yet I would wager
that South Africa’s case was strong enough that the court will impose
some provisional measures on Israel in the hope of mitigating the enormous civilian harm caused by Israel’s approach to fighting Hamas.
Genocide, as defined in a widely ratified
treaty ,
has essentially two elements. First, an offender must commit certain
acts against a targeted group such as “killing” or “deliberately
inflicting … conditions of life calculated to bring about its physical
destruction in whole or part”. Second, these acts must be committed with
genocidal intent, meaning an “intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such”. Both parts of
the crime were deeply contested by the lawyers in The Hague.
The South African legal team described the horrible conditions in Gaza under Israeli bombardment, including more than 23,000 dead, 1% of the population, with an estimated 70% women and children. Another 7,000 may be buried in the rubble. Some 85% of the population – 1.9 million people – have been displaced. About 65,000 residential units
have been destroyed or rendered uninhabitable, and another 290,000 have
been damaged, leaving half a million people with no home to return to.
At a time of enormous medical need, two thirds of Gaza’s hospitals have been closed.
Israel’s
response has been part spin, part serious. Its repeated invocation of
Hamas’s horrible 7 October attack and alleged genocidal aspirations are
irrelevant because atrocities by one side do not justify genocide by
another. Its argument of self-defense is beside the point because a
legitimate defense does not allow genocide.
But
Israel’s lawyers also pursued more weighty arguments, blaming Hamas’s
practice of embedding itself within the civilian population for the
damage. Hamas does display a callous indifference to civilian life, but
often so does Israel. Even when an enemy is using human shields, an
attacker must refrain
from firing if the anticipated civilian harm will be disproportionate
to the expected military advantage. Israeli forces have regularly
violated this ruIsrael’s
lawyers noted that Hamas built tunnels under and fired from civilian
structures but never addressed a point made repeatedly by South Africa –
that in response Israel dropped enormous 2,000lb bombs in heavily
populated areas despite their predictably devastating consequences. Nor
did Israel address reports that nearly half of its bombs dropped on Gaza have been non-precision “dumb” bombs, which have contributed to what President Biden called “indiscriminate bombing ” – also a war crime .
Israel’s
lawyers blamed Hamas for using hospitals for military purposes, but
never provided definitive proof backing US and Israeli intelligence
claims that a “command center” was kept under Gaza’s main al-Shifa
hospital or explained why the handful of rifles and single tunnel
actually found there justified shutting down this essential healthcare
institution at a moment of profound need.
The
argument over genocidal intent also had a similar split-screen quality.
South Africa cited well-known statements by senior officials: The
reference by the defense minister, Yoav Gallant,’ to fighting “human animals ”,
not, as he now claims, talking about only Hamas, but in discussing the
siege, which affects everyone in Gaza; President Isaac Herzog’s
statement that “this rhetoric about civilians not aware, not involved ” is false because civilians “could have risen up ” against Hamas, despite it being a brutal military dictatorship; and the twice invocation by the prime minister, Benjamin Netanyahu, of Amalek, of a biblical injunction to slay every “man and woman, infant and suckling ”.
The Israeli lawyers argued
that these were “random” statements, not formal government orders, but
they were made by Israel’s most senior officials. South Africa’s lawyers
also showed a chilling video of a large group of Israeli soldiers
invoking Amalek as they danced and sang that there are “no uninvolved civilians ”. That suggests a genocidal message was getting through.
The
South African lawyers also showed soldiers rejoicing at the destruction
of a village as huge plumes of smoke rose from it – hardly the care for
civilian lives that Israel’s lawyers described. And it didn’t help that
the Israeli foreign ministry accused South Africa, which is defending
Palestinian civilians, of “functioning as the legal arm of Hamas”, as if civilians were Hamas.
Arguing
against genocidal intent, the Israeli lawyers repeatedly highlighted
the warnings given to civilians to evacuate. South Africa’s lawyers
noted that Israeli forces continued to bomb in the supposedly “safe”
areas where civilians were sent, but the Israeli forces blamed Hamas for
fighting from there. They didn’t answer the South African claim, as verified by the New York Times, that Israeli forces had dropped 2,000lb bombs some 200 times in those areas.
There was a similar disjunction of views about humanitarian conditions. The Israeli lawyers highlighted Israeli efforts to provide
humanitarian aid, but other than blaming Hamas for sometimes stealing
aid, they didn’t grapple with the substantial bureaucratic and military obstacles
that Israel has erected to delivery of aid, resulting in far too little
getting through. Today, about 80% of people in Gaza are at “high risk ” of starvation and death.
How to square the circle? Israel, understandably, thinks of genocide in terms of the Holocaust, but the “final solution ” is not the only version. Genocide can be a means, not only an end. When the ICJ issued provisional measures
against Myanmar, the most analogous case, the Myanmar army did not aim
to kill every Rohingya but only enough – numbers comparable to the toll
in Gaza – to send 730,000 fleeing to Bangladesh.
Although on the eve of the court hearings Netanyahu disavowed a desire to drive Palestinian civilians from Gaza, his senior ministers have been openly advocating “voluntary ”
emigration. One way to understand the devastation and deprivation in
Gaza is as an effort to seize the opportunity provided by Hamas to erase some 2 million Palestinians from the demographic balance sheet within the “one-state reality ” that, because of settlement expansion, Israel and Palestine have become.
Israel’s
lawyers noted that it would be unfair for the ICJ to order Israel to
stop fighting in Gaza, as South Africa seems to be asking, while Hamas,
which is not a party to the state-to-state proceedings, would be under
no such order. The lawyers also objected to being ordered to “desist”
from committing acts of genocide because that would suggest prejudgment
of the ultimate merits of the case. To secure provisional measures at
this early stage of the proceedings, South Africa needs show only that
it is probable that genocide is under way.
Again,
the court could split the difference by ordering Israel to refrain from
certain seemingly genocidal actions, such as using enormous bombs in
populated areas, limiting humanitarian aid and obstructing hospitals.
That still leaves Hamas’s conduct unaddressed, but the body that could
speak to Hamas is the international criminal court (ICC), whose
prosecutor the Israeli government has banned from Gaza because it could
prosecute Israeli officials as well.
The ICJ
has no capacity to mandate compliance other than by act of the UN
security council, which the US government could veto. But the Israeli
government, having accepted the court’s legitimacy by arguing the case,
will be hard pressed to ignore an adverse ruling. Moreover, a finding of
probable genocide would be deeply stigmatizing for a country that was
created as a refuge from genocide, adding considerable pressure on
Netanyahu to stop, and making it far more difficult for Biden to
continue his unconditional provision of arms and military aid. That
could make an enormous difference in saving Palestinian civilian lives.
Kenneth Roth ,
former executive director of Human Rights Watch (1993-2022), is a
visiting professor at Princeton’s School for Public and International
Affairs
Below: South African advocate Adila Hassim's presentation of the preliminary case for genocidal conduct in Gaza. The equally important charge of genocidal intent was covered separately by a different advocate, and is also well worth watching, along with Israel's response to both. There has been inadequate coverage of this week's historic ICJ hearings in US media, and the Biden administration has dismissed the whole matter as "meritless, counterproductive and without factual basis," without even one word of refutation or denial of the charges, which, as the following video shows, are based in the most current assessment of the facts as accepted by the UN as of last week. The goal here is not to prove that genocide is occurring, but rather to show that there is sufficient prima facie evidence to warrant a full investigation (which could last years) and result in legal instructions that Israel desist from acts that may lead to possible genocide. This is one 20 minute segment of a 4 hr. presentation at the Hague last week, but a very important one laying out the genocidal nature of Israel's conduct in Gaza since Oct. 8. The full hearings of 1/11 (S Africa) and 1/12 (Israel) are posted on youtube for those with the time and interest. All of it is important.
Despite Israel's involvement in the case, PM Netanyahu has already stated that the World Court hearings are "a moral low point in the history of nations," and that "“No one will stop us, not The Hague, not the axis of evil and not anyone else," in a televised address.
VIDEO
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