National Review Online
Friday,
January 19, 2024
It’s tempting
to laugh off South Africa’s charges before the International Court of Justice
that Israel is committing “genocide” against the Palestinians as patently
absurd — because the charges are just that. And it’s easy to dismiss the
importance of any adverse ruling by observing that Israelis will ignore it —
because they will. But unfortunately, a swift ruling against Israel could be
damaging to its mission of destroying Hamas.
To
be clear, the ICJ, which was created as part of the United Nations to resolve
disputes among different countries, does not have any mechanism in place to
enforce any sort of ruling against Israel. Also, the threshold to prove
genocide against a sovereign state is high. It is not just about inflicting
casualties on civilians in a time of war, but proving an “intent to destroy, in whole or in part, a national, ethnical,
racial or religious group” — which involves compiling a significant body of
evidence. Thus, any final ruling by the ICJ on the merits of South Africa’s
claim is expected to take years to resolve.
What
South Africa is seeking, however, is an initial ruling of “plausibility,” which
requires the much lower threshold of convincing enough judges that it’s
theoretically possible that Israel is committing genocide. Such a ruling could
be delivered in a matter of weeks — or even days. A finding of “plausibility”
from a panel that includes judges from Hezbollah-dominated Lebanon, as well as
the authoritarian China and Russia, should carry no moral force in a sane
world. Nonetheless, it would be cited as proof of “genocide” by those hostile
to Israel around the world.
A
provisional ruling could convince governments that have been on the fence about
Israeli operations in Gaza to come out more forcefully in favor of an immediate
cease-fire. Of special concern is the fact that President Biden, who has
already been pushing for Israel to wind down its operations under pressure from
his progressive base, may find it harder to stick with Israel.
But
the case against Israel from South Africa is incredibly
weak and dishonest. It relies on civilian casualty figures from the
Hamas-controlled Gaza Health Ministry, and the U.N. report cited in the
complaint includes the following disclaimer: “The UN has so far not been able to produce
independent, comprehensive, and verified casualty figures.” South Africa
describes deplorable humanitarian conditions in Gaza, while ignoring the
humanitarian aid that Israel has allowed in; the fact that aid would be flowing
more freely if Hamas didn’t have a history of using humanitarian deliveries to
smuggle weapons; and the reality that more aid would be getting to the intended
civilian population if Hamas weren’t stealing it and hoarding supplies for its
terrorists.
To
indicate intent, South Africa’s complaint relies on bellicose statements from
various Israeli officials. The statements either lack context or are
inconsistent with the actual policy of Israel during the conflict. And just to
not lose sight of the obvious point that South Africa glosses over, Israelis
were reacting in response to attacks that involved slaughtering 1,200 Israelis
ranging from infants to senior citizens, gang-raping women, and taking hundreds
of hostages.
Yet
South Africa claims it was “dehumanizing” for Prime Minister Benjamin Netanyahu
to state, in response to the October 7 attacks, that the war was “a struggle
between the children of light and the children of darkness, between humanity
and the law of the jungle” and to state that “we’re facing monsters, monsters
who murdered children in front of their parents . . . This is a battle not only
of Israel against these barbarians, it’s a battle of civilization against
barbarism.” The supposed smoking gun involves taking literally a biblical
reference Netanyahu made to the destruction of Amalek, which had persecuted
ancient Jews.
In
practice, Israel has shown incredible restraint in fighting against an enemy
that, by design, operates out of civilian areas — including residential homes,
schools, and hospitals — in hopes of increasing the death toll of its own
people with the aim of putting more international pressure on Israel to stop
its counteroffensive. Israel has delivered warnings to civilians before
targeting certain areas, secured corridors to assist civilians seeking to
evacuate, and created noncombat zones. All of these moves, and more, sacrifice
military operations and ultimately put more Israelis at risk in the name of
minimizing, to the best extent possible, the civilian toll. Slapping Israel
with a “genocide” label, even through a provisional ruling on “plausibility,” would
handicap not just Israel but the efforts of any sovereign government to respond
to asymmetric actors who are willing to hide behind civilians. Ultimately, by
providing an incentive for terrorists to use civilians as shields, the ruling
would thus put more innocent people in harm’s way.
As
Tal Becker, Israel’s representative at the ICJ, put it in his opening statement in last week’s oral
arguments, “the Genocide Convention was not designed to address the brutal
impact of intensive hostilities on the civilian population, even when the use
of force raises ‘very serious issues of international law and involves enormous
suffering and continuing loss of life.’ The convention was set apart to address
a malevolent crime of the most exceptional severity.”
The
most twisted part of this South African genocide claim is that at this very
moment, Israel is fighting an enemy that was literally founded with the goal of
eradicating Israel. For decades, Hamas has carried out terrorist attacks with
this explicit aim in mind — its operations have included attacks on buses,
malls, night clubs, train stations, and restaurants, among other civilian
targets. On October 7, as has always been the case, it did not seek to
distinguish between civilians and combatants. In the months since, it has
launched thousands of rockets indiscriminately toward civilian areas in Israel.
Hamas has vowed to keep repeating the massacres of October 7 until Israel
is completely annihilated. The terrorist group still holds over 100 hostages,
including Kfir Bibas, a baby who, if he is still alive, has just turned one
year old while in Hamas captivity.
The
Genocide Convention, under which Israel stands accused, was adopted in the wake
of World War II because of the global community’s inability to prevent the
killing of 6 million Jews. Distorting its intention to protect the terrorist
group responsible for the worst attack on Jews since the Holocaust would be an
act of moral bankruptcy.
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