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Israel facing the ICJ is the country’s lowest point in history

Pro-Palestinian supporters picket outside the High Court in Cape Town, South Africa, Jan. 11, 2024. (AP)
Pro-Palestinian supporters picket outside the High Court in Cape Town, South Africa, Jan. 11, 2024. (AP)
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21 Jan 2024 06:01:19 GMT9
21 Jan 2024 06:01:19 GMT9

I am not an international lawyer and I have no idea what the provisional decision of the International Court of Justice will be in response to the case brought by South Africa against Israel, which alleges that the latter is engaging in “genocidal acts” in Gaza.

I am not even sure what decision might hasten an end to the war and help ease the immeasurable suffering of the people of Gaza.

I am much more certain that, regardless of South Africa’s motivation for leading this prosecution, Israel should embark on a genuine soul-searching exercise and ask itself how it arrived at this lowest point in the country’s history. For it to accuse the entire rest of the world of antisemitism is simply a way of avoiding the urgent task of putting its own house in order.

It is a tragic irony that Israel, the establishment of which was supported by the international community in response to the horrific genocide the Jewish people suffered at the hands of the Nazis, is now itself accused of the crime of genocide.

The aim in the postwar years of the late 1940s was to bring together the survivors of that mass atrocity and build a safe haven and cultural homeland where Jewish people would never again have to endure such horrors.

The word “genocide” itself was coined by Raphael Lemkin, a Polish lawyer of Jewish descent, in his 1944 book “Axis Rule in Occupied Europe,” in response to the horrifying and systematic extermination of the Jewish people by the Nazi killing machine. Of all possible war crimes, genocide is probably the worst accusation a country can face.

Yet many Israelis simply shrug their shoulders in response to the current legal proceedings in the Hague. They are mostly annoyed by the charge, dismiss it as antisemitism, and point out the double standards whereby other countries committing atrocities against their own people or those beyond their borders never face such an indictment.

Undeniably, antisemitism does exist and there are those who question the very right of the State of Israel to exist. But for Israeli society to use this as an excuse for the way in which the nation’s military is conducting the war in Gaza, whatever final verdict of the ICJ might be, is to avoid serious reflection on how Israel, through its own actions before and during the war, has created the conditions conducive to accusations of war crimes.

In the immediate wake of the atrocities committed by Hamas on Oct. 7, Israel enjoyed the sympathy of most of the world. Yet three months later, due to the way in which it is conducting its war on Gaza and killing so many thousands of innocent Palestinian civilians, accompanied by comments from senior Israeli politicians that could be interpreted as genocidal even if they are not attributable to those directly in charge of decision-making, Israel has lost much of this support.

Israelis commonly assert that what has landed their country in the dock at the Hague accused of genocide is the irresponsible language of some members of the current governing coalition, and even of a Cabinet that is genocidal by nature, as the South African prosecution team asserts.

Would a call for an end to the war harden Israel’s position and prompt it to accuse the court of siding with Hamas? Or would Israel soften its position in response?

Yossi Mekelberg

According to this line of defense, such language is not reflective of official policy. Admittedly, at least to a non-legal eye, some of these references have been more typical of the intemperate, ugly and abhorrent nationalist language often heard in times of war, than of a plan to commit acts “with intent to destroy, in whole or in part, a national, racial or religious group,” as set out in the definition of the crime of genocide.

But those in positions of power should know that when they embark on a military campaign that involves killing thousands of civilians, displacing most of the population and bombarding their infrastructure and reducing it to rubble, such declarations will be interpreted differently.

Early in the war, for example, Prime Minister Benjamin Netanyahu employed biblical language that compared Palestine to Amalek, a rival nation to ancient Israel. Passages in the Hebrew Bible recount how Israelites were told to destroy the Amalekites.

One minister suggested that Israel drop a nuclear bomb on the Gaza Strip. Another called for the territory to be razed to the ground. Even President Itzhak Herzog, regarded as one of the more moderate Israeli politicians, blamed all Gazans for the Oct. 7 attack.

“It’s an entire nation out there that is responsible. This rhetoric about civilians not aware, not involved, it’s absolutely not true. They could have risen up, they could have fought against that evil regime,” he said, setting a tone in which all of the Gazan people are equated with Hamas.

Some might argue that such statements should be regarded as typical, if admittedly rather vile and reckless and inexcusable, in times of war, and no more than that. However, the reason the international community is upset about and suspicious of the Israeli government’s intentions is that more than 24,000 Palestinians have been killed, the vast majority of them noncombatants, including thousands of children. This in addition to the enormous trauma inflicted on all Gazans, and demands from some senior Israeli politicians that they be transferred elsewhere.

This leads some in the international community to believe, rightly or wrongly, there is a bigger objective in play than simply the destruction of Hamas. And for this, Israelis need to take responsibility.

Last week at the Hague, Israel mounted a robust defense of its actions and it is almost impossible to predict whether the court will issue a provisional decision calling for the immediate cessation of hostilities or refrain from doing so.

In the meantime, the question remains of how Israel, and to a large extent its main ally, the US, might respond to either of these outcomes. Would a call for an end to the war harden Israel’s position and prompt it to accuse the court of siding with Hamas? Or would Israel soften its position in response?

What if the court does not issue such a provisional decision? Would Israel view this as an endorsement of its actions, at least from the standpoint of international law, and continue the war?

Either potential outcome suggests to me that it might have been better to concentrate all international efforts on achieving a ceasefire, stopping the killing, and releasing the hostages before seeking a court decision.

At the same time, whatever the decision of the court, it will take Israel a long time to redeem its reputation in the eyes of the international community because never before has the country’s claim that its army is “the most moral army in the world” rung more hollow.

• Yossi Mekelberg is a professor of international relations and an associate fellow of the Middle East and North Africa Program at international affairs think tank Chatham House.
X: @YMekelberg

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