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Israel’s argument at The Hague: We are Incapable of Genocide

Israel’s relationship with the United Nations, international institutions and international law has at times bristled with suspicion and blatant hostility. In a famous cabinet meeting in 1955, Prime Minister David Ben-Gurion famously knocked back the suggestion that the United Nations 1947 plan for partitioning Palestine had been instrumental in creating the State of Israel. “No, no, no!” he roared in demur. “Only the daring of the Jews created the state, and not any oom-shmoom resolution.”

In the shadow of the Holocaust, justifications for violence against foes mushroom multiply. Given that international law, notably in war, entails restraint and limits on the use of force, doctrines have been selectively pruned and shaped, landscaped to suit the needs of the Jewish state. When the strictures of convention have been ignored, the reasoning is clipped for consistency: defenders of international law and its institutions have been either missing in the discussion or subservient to Israel’s enemies. They were nowhere to be seen, for instance, when Egypt’s Gamal Abdel Nasser was preparing for war in the spring of 1967. Israel’s tenaciously talented statesman, Abba Eban, reflected in his autobiography about the weakness of the UN in withdrawing troops from the Sinai when pressured by Nasser to do so. It “destroyed the most central hopes and expectations on which we had relied on withdrawing from Sinai.”

These steely attitudes have seen international convention and practice, in the Israeli context, treated less as Dickensian ass as protean instruments, useful to deploy when convenient, best modified or ignored when nationally inconvenient. This is most evident regarding the Israel-Hamas war, which is now into its third month. Here, Israeli authorities are resolute in their calls that Islamic terrorism is the enemy, that its destruction is fundamental for civilisation, and that crushing measures are entirely proportionate. Palestinian civilian deaths might be regrettable but all routes of blame lead to Hamas and its resort to human shields.

These arguments have failed to convince a growing number of countries. One of them is South Africa. On December 29, the Republic filed an application in the International Court of Justice alleging “violations by Israel regarding the Convention on the Prevention and Punishment of the Crime of Genocide […] in relation to Palestinians in the Gaza Strip.” Various “acts and omissions” by the Israeli government were alleged to be “genocidal in character, as they are committed with the requisite specific intent … to destroy the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnical group.” What Pretoria is seeking is both a review of the merits of the case and the imposition of provisional measures that would essentially modify, if not halt, Israel’s Gaza operation.

Prior to its arguments made before the 15-judge panel on January 12, Israel rejected “with contempt the blood libel by South Africa in its application to the International Court of Justice (ICJ).” The Israeli Foreign Ministry went so far as to suggest that the court was being exploited, while South Africa was, in essence, “collaborating with a terror group that calls for the destruction of Israel.”

Prime Minister Benjamin Netanyahu, with demagogic rage, claimed that his country had witnessed “an upside-down world. Israel is accused of genocide while it is fighting against genocide.” The country was battling “murderous terrorists who carried out crimes against humanity.” Government spokesman Eylon Levy tried to make it all a matter of Hamas, nothing more, nothing less. “We have been clear in word and in deed that we are targeting the October 7th monsters and are innovating ways to uphold international law.”

In that innovation lies the problem. Whatever is meant by such statements as those of Israel Defence Forces spokesman, Rear Adm. Daniel Hagari, that “Our war is against Hamas, not against the people of Gaza”, the catastrophic civilian death toll, destruction, displacement and starvation would suggest the contrary. Innovation in war often entails carefree slaughter with a clear conscience.

On another level, the Israeli argument is more nuanced, going to the difficulties of proving genocidal intent. Amichai Cohen of Israel’s Ono Academic College and senior fellow at the Israel Democracy Institute admits that comments from right-wing Israeli ministers calling for the “emigration” of Palestinians from Gaza were not helpful. (They were certainly helpful to Pretoria’s case.) But he insists that the South African argument is based on “classic cherry-picking.” Cohen should know better than resort to the damnably obvious: all legal cases are, by definition, exercises of picking the finest cherries in the orchard.

The Israeli defence team’s oral submissions to the ICJ maintained a distinct air of unreality. Tal Becker, as legal advisor to the Israeli Foreign Ministry, tried to move judicial opinion in his address by drawing upon the man who minted genocide as a term of international law, Raphael Lemkin. Invariably, it was Becker’s purpose to again return to the Holocaust as “unspeakable” and uniquely linked to the fate of the Jews, implying that Jews would surely be incapable of committing those same acts. But here was South Africa, raining on the sacred flame, invoking “this term in the context of Israel’s conduct in a war it did not start and did not want. A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations whose brutality knows no bounds.” Israel, pure; Israel vulnerable; Israel under attack.

In yet another jurisprudential innovation, Becker insisted that the Genocide Convention was not connected in any way 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, rather, was meant “to address a malevolent crime of the most exceptional severity.”

The view is reiterated by another lawyer representing Israel. “The inevitable fatalities and human suffering of any conflict,” submitted Christopher Staker, “is not of itself a pattern of conduct that plausibly shows genocidal intent.” Butcheries on a massive scale would not, in of themselves, suggest such the requisite mental state to exterminate a race, ethnic or religious group.

As for South Africa’s insistence that provisional measures be granted, Staker was unwavering in repeating the familiar talking points. They “would stop Israel defending its citizens, more citizens could be attacked, raped and tortured [by Hamas], and provisional measures would prevent Israel doing anything.”

Legal tricks and casuistry were something of a blooming phenomenon in Israel’s submissions. South Africa had, according to Becker, submitted “a profoundly distorted factual and legal picture. The entirety of its case hinges on deliberately curated, decontextualised, and manipulative description of the reality of current hostilities.” Happy to also do a little bit of decontextualising, curating and manipulating himself, Becker trotted out the idea that, in accusing Israeli’s war methods as being genocidal, Pretoria was “delegitimizing Israel’s 75-year existence in its opening presentation.” It entailed erasing Jewish history and excising “any Palestinian agency or responsibility.” Such a ploy has been Israel’s rhetorical weapon for decades: all those who dare judge the state’s actions in a bad light also judge the legitimacy of the Jewish state to exist.

Malcom Shaw, a figure known for his expertise in the thorny realm of territorial disputes, did his little bit of legal curation. He took particular issue with South Africa’s use of history in suggesting that Israel had engaged in a prolonged dispossession and oppression of the Palestinians, effectively a remorseless, relentless Nakba lasting 75 years. The submission was curious for lacking any mooring in history, a fatal error to make when considering the Israel-Palestinian issue. It’s also palpably inaccurate, given the dozens of statements made by Israeli politicians over the decades acknowledging the brutal, ruthless and dispossessing tendencies of their own country. But legal practitioners love confines and walled off applications. The only thing that mattered here, argued Shaw, was the attack of October 7 by Hamas, a sole act of barbarity that could be read in terrifying isolation. That, he claimed was “the real genocide in this situation.”

Having tossed around his own idea about the real genocidaires (never Israel, remember?), Shaw then appealed to the sanctity of the term genocide, one so singular it would be inapplicable in most instances. Conflicts could still be brutal, and not be genocidal. “If claims of genocide were to become the common currency of our conflict … the essence of this crime would be diluted and lost.” Woe to the diluters.

Gilad Noam, in closing Israel’s defence, rejected the characterisation of Israel by South Africa as a lawless entity that regarded “itself as beyond and above the law”, whose population had become infatuated “with destroying an entire population.” In a sense, Noam makes a revealing point. What makes Israel’s conduct remarkable is that its government claims to operate within a world of laws, a form of hyper-legalisation just as horrible as a world without laws.

Ironically enough, the Lemkin Institute for Genocide Prevention has been furiously pressing the International Criminal Court to indict Israeli Prime Minister Benjamin Netanyahu for the crime of genocide, the siege and bombardment of Gaza “and the many expressions of genocidal intent, especially in his deleted tweet from 10/17/2023.” The tweet (or post) in question crudely and murderously declared that, “This is a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.” If that does not reveal intent, little else will.

 

 

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13 comments

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  1. andyfiftysix

    “What makes Israel’s conduct remarkable is that its government claims to operate within a world of laws, a form of hyper-legalisation just as horrible as a world without laws.”

    two issues here. In war there are no rules….if you think the geneva convention applies your delusional. But the irony here is that they claim to go by the rules when clearly a civilian in the line of fire is just an unfortunate accident, all 25,000 of them.

    he who has the strongest army wins and calls the tune. When has israel ever submitted to UN resolutions?

    Holding them to account is about as insufferable as watching trump explain magnets.

  2. ajogrady

    What reasonable thinking person could have ever imagined that “never again” IS happening again. The macabre reality is it is being perpetrated by those who should know better and, are to their own detriment, repeating history that will forever now be the most shameful of a very shameful history. The holocaust has been revisited and is being used as a template by those who were the central advocates of “never again”, Zionist Jews. Like Satanic slaves Zionist Jews are emulating the horrors of the Nazi’s final solution holocaust.
    Now Zionist Israel is relying on world sympathy fatigue and amnesia. They are biding their time for the world to look away so that they can finish the job they started back in 1948. That is, the elimination of the Palestinian people. With luck, they hope, the world will stop their bleeding-heart moaning about Gaza and the plight of the Palestinians. The joy of the eradication of the ‘Palestinian Problem’ will, God willing, be complete in 2024.
    Not so! “Never again” means “never again” especially for Zionist Jews.
    As South Africa presents its case against Israel to the International Court of Justice, even Genocide Joe might hesitate to defy a “binding” order of the world’s highest judicial authority by continuing to support, militarily, financially and diplomatically, Israel’s genocidal assault against the people of Gaza.
    This is history in the making. The world is awake and no longer prepared to turn a blind eye to the shocking murderous actions of Zinist Israel. Whichever country turns away in cowardice and obliviousness will have to deal with their shame when history looks back at the genocide they allowed to occur on their watch. There can be no more finger pointing at Germany, Rwanda or Myanmar if a country does not stand up and fight for the rights of the Palestinians and the cessation of the genocide. The world isn’t going to let this continue, not only because of the immorality, inhumanity and unethical nature of what Israel is doing to the Palestinians, but because if Israel is allowed to inflict the attempted elimination of the Palestinian people, then who’s next? What other country will be allowed to commit genocide and get away with it because Israel was given a green light to continue. It’s naïve to think we are all safe if we live in a democratic society and that kind of thing can never happen to us. Israel calls itself a democracy, so if such a “democracy” is allowed to conduct itself in a genocidal manner, then no one is safe. The world will become a free-for-all if the United States and Israel are allowed to behave in such a way that leaves the rest of the world horrified. Israel and the United States must be stopped from destroying our world.

    The atrocities in Gaza are the perfect embodiment of ‘Western Values’

  3. heather

    Washing history to suit objectives is never a good idea https://en.wikipedia.org/wiki/History_of_Israel#Mandatory_Palestine

    The victim has now become the perpetrator and no amount of gnashing of teeth will change that irrefutable fact. Genocide is Genocide no matter whose version of God you call to your aid.

  4. Phil Pryor

    Disgracefully, illegally, in an uncivilised plotting which relies on ancient superstitious scribble, with no basis in title, contracts, genetic evidence, anything acceptable, we have had on record a zionist declaration to totally thieve a slab of territory and to kill if necessary in the fight to get it. Declarations by Napoleon, Hitler, Stalin, Pol Pot, anyone vicious and terminally threatening, would be denounced, analysed, condemned. Surely nobody today can claim a slab of land anywhere in a fantasy home country of myth and legend, and the right to occupy, defend, slaughter? Who now can even sue the Romans or Ottomans, the Tudors or the Huns of old?

  5. Douglas Pritchard

    For too long we have given Israel the benefit of the doubt.
    Coerced by USA who believed that THEY were the exceptional ones.
    Washington has been shown that its a second place power, bowing to Tel Aviv.
    So it turns out that far from being law abiding, or in any way qualified to be a part of the mature world.
    Israel only reacts to long dead, who chiselled their messages in stone.
    Primitives they are, and will continue to act that way as long as they are not reigned in
    They are in a deluded world not even heeding advice from their sponsor who we all acknowledge will resort to the use of nuclear weapons when times get tough. Twice, when once was enough.
    This is a new level of stupid for Netenyahoo, and his hanging by their fingernails backers.
    His neighbors will not miss the chance to determine where the nation is headed next, and the cult will be fearful around the globe as a result of this genocidal event.

  6. Baby Jewels

    Finally, the thin veneer of civilisation and humanity in the West, is clearly proven to be nothing but a myth.

  7. Keitha Granville

    The simple fact is that Israel has to show itself as better than those they seek to destroy, by behaving humane;y and in statesmanlike fashion. Instead they have descended into the maelstrom wantonly and indiscriminately slaughtering and destroying all in their path in the name of “fighting terrorism”.

    They have done more damage to their own image and in the process are losing hearts and minds in many peoples who have supported them since the Holocaust – myself included.

    I don’t know the answer – this is a fight between 2 equally radical ideologies, and to hell with any humans in the way.

    I am reminded of the inscription on the ring given to Oscar Schindler by the Jews he saved –
    from the Talmud “whoever saves one life saves the world entire”. Perhaps Israelis need to be reminded of that.

  8. frances

    @Keitha: I recall seeing on tv late last year a Jewish protester somewhere shouting, “How can a single child die just so I might live?”

  9. Jon Chesterson

    Israel incapable of genocide and Abraham I suppose was incapable of murdering his son Isaac because God told him to… OMG it was just a test. Well fuck the crows they failed this one by 23,000 Palestinians (mostly women and children) in just one hundred days and counting! Not to mention many thousands since 1948 whose land they have also stolen and settled in. Well my son, children of Israel take a look at the evidence – incapable doesn’t even come into it.

  10. Clakka

    A convenient hatred to sanctify expansionism, now moved to a pile on of neo-religious fanaticism barely disguising murderous exceptionalism.

    And out of guilt and convenience the ‘western’ world has stood by and aided in its accumulation.

    Throughout history, the cauldron that is Palestine / Israel has been filled with the bile and blood of all who have come and gone, and it’s never been about anything but a battle for wealth in a thousand disguises.

    The sinking feeling is from the ICJ’s nightmare. Should it proclaim against Israel, it impugns decades of pussy-footing and divisive, cringing obeisance by the ‘west’, who as the dominant imperium twice in the 20th century set the platform upon which such disasters could unfold.

  11. New England Cocky

    The IDF ZION@ZIS ARE COMMITTING GENOCIDE IN THE GAZA STRIP TO ”DRIVE ALL PALESTINIANS INTO THE SEA” and in this Netanyahu Nakba the dispossessed and displaced Palestinians will lose their lands to the American and European entrepreneurs just waiting for hostilities to end so that the wreckage can be removed and new residential housing built for fresh ZION@ZI colonist settlers escaping from the Russian conscription, the American chaos or simply the European disinterest.

    The US politicians will be silent because the NE Military Industrial Complex is making a motza profit re-supplying military arsenals being emptied to supply the IDF with ”use by date” war armaments.

    Any country that has the USA (United States of Apartheid) as an ally and armaments supplier has no need for any other enemy.

  12. New England Cocky

    @ Keitha: Your post reminded me of Ray Bradbury’s ”Fahrenheit 451” plot where this strategy was laid out in detail by the autocratic dictatorship. There are many ”modern” political strategies described in the voluminous production of American science fiction from the 1950s when America was ”recovering” from WWII and too much Republican government.

  13. Canguro

    Recommended viewing, the 2009 documentary To Shoot an Elephant, as if that isn’t a determinedly grim enough viewing, the current situation is massively magnified. The hatred of the Israelis towards the Palestinians is one of this centuries most awful spectres, illustrative of the worst mankind is capable of.

    I pray that the ICJ find for South Africa in their case for the genocidal actions of the Israeli government in their maniacal aggression towards their besieged neighbours. It’s way beyond time to speak to the truth of the situation. Pussy-footing along the lines of ‘the poor Jews, they had such a hard time in the Holocaust, they need to be given a break, just let them be’ just doesn’t cut it anymore; they’re an aggressive and mercilessly predatory people defined by ignorance, delusion, hatred, and fear. To hell with them, along with their supporters.

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