To hold our heads high, believe in the righteousness of our path, and continue without regard for world opinion.
There is no other option. We are called to this in the face of perverse charges, grotesquely distorted information, and hostile actions.
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Just over 100 days ago, here in Israel, we faced the most horrendous attack on Jews to have taken place since the Holocaust. An obscene assault by Hamas that was genocidal in its nature, it took the lives of more than 1,200 innocent civilians, including children and babies, and involved torture, rape, burning of people alive. What is more, Hamas declared intention to repeat such attacks in fulfillment of its goal of eradicating Israel. This was an open declaration of genocidal intent.
But insanely, matters have been turned upside down:
Now Israel – which is fighting to eliminate an existential threat – is being charged with genocide against the Palestinian Arabs in Gaza. The charge was filed in the International Court of Justice (ICJ) in the Hague by South Africa on December 29. (More on this follows below.)
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It is important to note that the ICJ is an arm of the United Nations, which is inherently biased against Israel. The 15 justices that sit on the court for five-year terms are selected by the GA and the SC of the UN (approval of both bodies required). There cannot be more than one justice from any nation at a given time. At present, the justices sitting are from: Somalia, China, Slovakia, France, Morocco, Brazil, US, Uganda, India, Jamaca, Australia, Russia, Lebanon, Japan, Germany. Joan Donoghue, of the US, is currently sitting as president.
When a nation that does not have a representative on the Court is involved in a contentious case before the Court, it is permitted by the rules to appoint an additional person to sit on the Court for that hearing. Israel has selected Aharon Barak, who served as Chief Justice of the Israeli Supreme Court from 1995 to 2006. There was much surprise registered at this choice, as he has been a contentious figure at the heart of judicial reform debate. But many feel that this may be a wise decision: Barak has an international reputation and might have influence during deliberations.
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It is a matter of great significance that South Africa has a history of a relationship with Hamas:
“The Palestinian terrorist group Hamas sent a delegation to South Africa [in October]. The delegation, led by head of Hamas’ politburo Khaled Meshal and his deputy Mousa Abu Marzouk, met with senior officials from the African National Congress (ANC), including South African president Jacob Zuma. The ANC reportedly signed a ‘letter of intent’ with Hamas to build a long-lasting relationship with the organization.
“…Pretoria has been building ties with Hamas for years.” (emphasis added)
https://www.fdd.org/analysis/2015/10/23/warming-ties-between-hamas-and-south-africa/
“The Daily Mail reports that South African leaders met Hamas militants on official visits to their country after the deadly October 7 terrorist attack on Israel.”
https://www.israelnationalnews.com/news/383568
This visit took place in December. It was only shortly after that South Africa filed suit with the ICJ, prompting Israel to charge that South Africa was acting as the “legal arm” of Hamas.
https://www.politico.eu/article/israel-accuses-south-africa-of-being-the-legal-arm-of-hamas/
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Let it be said upfront and very clearly: Israel will continue to pursue the elimination of Hamas in Gaza no matter the findings of the Court. We cannot and will not allow Hamas to continue to operate in Gaza.
Said Netanyahu: “We will continue to fight the terrorists. We will continue to refute the lies. We will continue to uphold our just right to defend ourselves and to ensure our future—until total victory.”
https://www.gov.il/en/departments/news/statement-by-pm-netanyahu-11-jan-2024
Findings of the Court are binding, but there is no mechanism for enforcement. If a nation fails to adhere to the finding of the Court, the matter can be taken to the Security Council, which does have the capacity to pass a resolution with an enforcement mechanism under Chapter VII. The assumption is that the US would veto this.
The more immediate damage may come from a preliminary judgement – a provisional measure. South Africa has petitioned the Court to put a hold on Israeli activity in Gaza immediately, pending the final decision, which might take months or even years. I have been advised that the bar is very low for a positive ruling here. It does not have to be proven that Israel is committing genocide, only that it is possible that Israel might be.
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South Africa has brought charges against Israel under the Genocide Convention, to which Israel is a signatory. It might have been possible for Israel to decline to participate in Court proceedings. The decision was made to participate actively because it is not a “slam dunk” for the South African position – there is a reasonable chance that as Israel makes a solid case, the finding might support our position. This was determined after an analysis of those sitting on the Court. We have a chance.
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What is more, it was considered unwise to remain silent in the face of the outrageous charges being leveled at Israel. Making our case for the world to hear was also deemed to be of significance.
This is actually extremely important because in the end the damage to Israel from this fiasco will be in the nature of negative pr and impaired diplomatic relations. And there is reason to believe that that is what South Africa, acting for Hamas, is truly after, and not a positive Court finding.
Consider these comments by Dr. Frans Cronje, Former CEO of the South African Institute of Race Relations (IRR):
“The South Africans have for an extended period of time been fronting an Iranian strategy to do two things. First to poison opinions against Israel in the western world…” (Emphasis added)
Hear more:
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Last Thursday, South Africa made its case against Israel in the Court. The case was notable both for major distortion of the facts and for failure to include absolutely critical information.
[] Incredibly, it did not mention the crucial fact that Israel was fighting against Hamas in Gaza because of the massacre of October 7. Rather than acknowledging that the fighting by Israel was defensive, intended to eliminate an existential threat to Israel, it seemed from this version of events that Israel was on the offensive, going into Gaza to eliminate the people there.
[] Also incredible was the failure to acknowledge the Hamas practice of using human shields and operating from civilian areas – schools, hospitals, mosques and private homes. This practice is responsible for a large percentage of the civilian deaths.
[] As might be expected, neither was there acknowledgement of the efforts by Israel to avoid involving civilians. It is unheard of for a nation fighting a war to advise civilians on where hostilities would be taking place so that they might move from those areas. This undercuts the element of surprise.
[] Equally unheard of is readiness to allow into the arena of war large quantities of humanitarian supplies for the civilian population, including not just food but fuel, when the enemy is likely to usurp a major part of these supplies. Certainly, there was no mention that Israel has been doing this. Were Israel intent on genocide, on destroying the Palestinian Arab population, there would not have been willingness to allow in humanitarian supplies to sustain their lives.
[] It was never made clear that Israel was fighting a terrorist organization in Gaza and not attacking all civilians in Gaza.
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South Africa’s case rested primarily on the large number of civilian deaths. According to the Gaza Health Ministry, which is a Hamas-controlled agency, 23,000 civilians have been killed by Israel since October 7. There are a great many problems with this figure, the first being that Hamas is not a reliable source for this information.
Not only is there a good chance that the total number of deaths is inflated, there is no differentiation between those killed who were terrorists and those who were truly civilians; Israel has killed thousands of terrorists.
Lastly, it has been documented that Hamas rockets are often inaccurate. Launched to go into Israel, they sometimes end up landing inside of Gaza and killing people there; a good number of the deaths is likely to be accounted for this way – there are no statistics on this.
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There were related charges by South Africa, regarding other ways Israel is allegedly attempting to destroy the civilian population of Gaza: preventing them from getting enough food, or getting hospital care, etc. I have essentially covered these charges above: there is no reference to Hamas involvement, in co-opting hospitals, taking food meant for the civilians, etc. Absolutely no acknowledgement of the way in which Hamas behavior has made life difficult for the civilian population. For example, early in the war, when Israel encouraged the civilians to go south, as the main fighting at that point was going to be in the north, Hamas blocked civilians from going and sometimes even shot at them. They needed their human shields.
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One other approach attempted by the South African legal team involved citing statements by Israeli officials that ostensibly prove intent to genocide. The most significant problem with this approach is that statements by individual members of the government do not constitute policy, and there is exactly zero evidence of an Israeli policy that endorses genocide.
I think the statement that has been referred to most often is one by Netanyahu: “’Remember what Amalek did to you.’ We remember and we fight.”
Amalek. a vicious and cowardly tribe, attacked the Hebrews from the rear, aiming at the weak. The Hebrews are commanded to remember what they did. This is Deuteronomy 25:17. Netanyahu is saying we need to remember the Hamas atrocities which are also vicious and cowardly. He does not say we need to annihilate the Palestinian Arabs totally. He says, “We fight,” which is different. That is, we cannot remain passive when children were burned alive and dismembered, nor will we forget what was done.
But Amalek is a remembrance from the past, and it is universally acknowledged that this people can no longer be identified. In any event, Jewish rules of war do not advocate genocide of enemies.
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On Friday, the legal team for Israel made its case. First to speak was Dr. Tal Becker, legal adviser to the Ministry of Foreign Affairs. He gave an excellent presentation and I share a link to it below – both a video of his presentation and printed text. With his spoken presentation he included videos providing powerful evidence of the nature of the Hamas massacre.
I recommend listening to his presentation in its entirety and sharing with others.
A few of his salient points here:
“Remarkably, counsel for South Africa described the suffering in Gaza as ‘unparalleled and unprecedented’, as if they are unaware of the utter devastation wrought in wars that have raged just in recent years around the world. Sadly, the civilian suffering in warfare is not unique to Gaza. What is actually ‘unparalleled and unprecedented’ is the degree to which Hamas has entrenched itself within the civilian population, and made Palestinian civilian suffering an integral part of its strategy…
“There are many distortions in the Applicant’s submission to the Court, but as shall be demonstrated by Counsel, there is one that overshadows them all. In the Applicant’s telling, it is almost as if there is no intensive armed conflict taking place between two parties at all, no grave threat to Israel and its citizens, only an Israeli assault against Gaza.
“The Court is told of widespread damage to buildings, but it is not told, for example, how many thousands of these buildings were destroyed because they were booby trapped by Hamas, how many became legitimate targets because of the strategy of using civilian objects and protected sites for military purposes, how many buildings were struck by over 2000 indiscriminate terrorist rockets that misfired and landed in Gaza itself…
“The Applicant is essentially asking the Court to substitute the lens of armed conflict between a State and a lawless terrorist organization, with the lens of a so-called genocide of a State against a civilian population. But it is not offering the Court a lens, it is offering it a blindfold….
“…if there is a humanitarian threat to the Palestinian civilians of Gaza – it stems primarily from the fact that they have lived under the control of a genocidal terrorist organization that has total disregard for their life and well-being…
“In these circumstances, there can hardly be a charge more false or more malevolent than the allegation against Israel of genocide.
“Madame President, Members of the Court, the Genocide Convention was a solemn promise made to the Jewish people, to all peoples, of ‘Never Again’. The Applicant invites the Court to betray that promise. If the term genocide can be so diminished in the way it advocates, if Provisional Measures can be triggered in the way it suggests, the Convention becomes an aggressor’s charter. It will reward, indeed encourage, the terrorists who hide behind civilians, at the expense of the States seeking to defend against them.
“To maintain the integrity of the Genocide Convention, to maintain its promise, and the Court’s own role as its guardian, it is respectfully submitted that this Application and Request should be dismissed for what they are – a libel, designed to deny Israel the right to defend itself according to the law from the unprecedented terrorist onslaught it continues to face, and to free the 136 hostages Hamas still holds.”
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Israel’s legal representative Professor Malcom Shaw, a British expert in international law, was then called to speak. Among his statements:
“Not every conflict is genocidal. The crime of genocide in international law and under the Genocide Convention is a uniquely malicious manifestation and stands alone among violations of international law as the zenith of evil, the crime of crimes, ultimate in wickedness.
“If claims of genocide were to become common currency of armed conflict wherever that occurred, the essence of that crime would be lost.”
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We are delighted that Germany has announced that it will intervene as a third party in South Africa’s case against Israel at the International Court of Justice (ICJ) and will present its own case to the court.
Spokesperson Steffen Hebestreit said. “…the Federal Government firmly and expressly rejects the accusation of genocide that has now been made against Israel at the International Court of Justice.”
In light of Nazi history, the German government “sees itself as particularly committed to the Convention against Genocide.”
https://www.israelnationalnews.com/news/383506
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Other countries are speaking out as well, including the US, the UK, and Canada.
Hungary’s Foreign Minister Péter Szijjártó wrote on Facebook (emphasis added):
“…to accuse a country of genocide that has suffered a terrorist attack, is obviously nonsense. Hungary’s position remains unchanged, we stand by Israel’s right to self-defense.
“We believe that it is in the interest of the whole world that the current counter-terrorism operations are a success, so that such brutal terrorist attacks never happen again anywhere in the world.”
https://hungarytoday.hu/the-government-condemns-south-africas-legal-attack-on-israel/
The man’s got it right, bravo!
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© Arlene Kushner. This material is produced by independent journalist Arlene Kushner. Permission is granted for it to be reproduced only with proper attribution.
