Law, Politics, and Antisemitism

On Dec. 29th, South Africa filed a complaint against Israel to the International Court of Justice (ICJ), arguing that Israel is committing genocide in Gaza. While the suit will likely take years to reach a conclusion, the ICJ heard arguments by both sides on Jan. 11th and 12th as part of South Africa’s request for “provisional measures” – an interim order meant primarily to bring about an immediate ceasefire by Israel.

The ICJ’s authority extends over states and not individuals (as opposed to the International Criminal Court, the ICC) and, like many other international tribunals, its decision is not legally binding. However, the court’s decision might have economic and diplomatic implications – both in general and specifically on Israel’s ability to continue fighting the war in Gaza. The legal process is based on the U.N. Convention on the Prevention and Punishment of the Crime of Genocide. The convention, signed in 1948 and in effect since 1951, was the first U.N. human rights treaty and a direct lesson from the Holocaust. Israel was one of the first countries to ratify the convention without reservation and to incorporate its provisions in its domestic legislation. For that reason, and as opposed to other international tribunals (like the ICC), Israel was required to appear in front of the court and defend itself from the allegations raised against it.

To understand what is misguided about the ICJ proceedings, three points require deeper explanation: the strength of Israel’s legal case, its political background and implications within Israel, and the disturbing role of revived antisemitism in the current process. 

To understand what is misguided about the ICJ proceedings, three points require deeper explanation: the strength of Israel’s legal case, its political background and implications within Israel, and the disturbing role of revived antisemitism in the current process. 

Law

Article II of the convention defines the crime of genocide as a list of five acts committed with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The five acts listed in the convention are: (i) killing members of the group, (ii) causing serious bodily or mental harm to members of the group, (iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, (iv) imposing measures intended to prevent births within the group, and (v) forcibly transferring children of the group to another group. Genocide, the most heinous crime within the family of nations, requires not only the act but also the intent to destroy the group in question. 

According to South Africa’s claim, the combination of the number of Palestinians killed as a result of the Israeli military’s aerial bombardments and ground operations (mostly women and children according to the Hamas-controlled Health Ministry in Gaza), the displacement of the vast majority of the Gaza population into makeshift camps with harsh sanitation and health conditions, the destruction of vast swaths of the civil infrastructure in Gaza, and preventing the basic humanitarian needs of Gazans to be met – together with many statements by Israeli public figures spanning the realms of politics, the military and culture about the need to “erase” Gaza and Gaza having “no innocents” within it – prove that Israel is committing genocide in Gaza. 

From a legal viewpoint, the claim that Israel is committing genocide in Gaza is both unjustified and baseless. First and foremost, the South African claim ignores the background and context for Israel’s actions in Gaza. As the Israeli legal team indicated, the correct framing for the hostilities between Israel and Gaza is that of war and not genocide. Following the massacre Hamas committed on October 7th, Israel declared two goals would guide its response. The first was freeing the hostages Hamas and other terrorist organizations kidnapped from their homes and public spaces. One hundred and thirty-six of them are still in captivity, and according to the testimony of freed captives, they are being held under horrific conditions with their lives continually in danger. The second goal was eliminating Hamas’s control over Gaza and the threat of missile, rocket, and ground attacks like Israel experienced on October 7^th. International law recognizes a state’s right to self-defense. Demanding a stop to its military campaign in Gaza hinders Israel’s right to defend its citizens against Hamas’s violence – an organization whose charter is committed to the destruction of Israel and whose leaders vow to repeat the acts of October 7^th again and again.

There are many indications that Israel sees itself committed to the international laws of war in a way that precludes genocidal intent and actions … Israel has invested exceptional effort to minimize harm to Gazan civilians.

While specific acts and commands on the ground are difficult to discern as the war is ongoing, there are many indications that Israel sees itself committed to the international laws of war in a way that precludes genocidal intent and actions. From providing humanitarian corridors for civilians to evacuate from areas of war and publishing an interactive map that shows where the Israeli army intends to operate to supplying and facilitating the provision of humanitarian aid – food, water, medicine, and even makeshift hospitals – Israel has invested exceptional effort to minimize harm to Gazan civilians.

Many Israelis have made inflammatory statements regarding Gaza and its citizens, like the remarks by Ministers and Parliament members calling on Israel to “nuke Gaza.” And “wipe it out”. While public figures, these people are not members of the Israeli Government’s War Cabinet. Therefore, they do not have control over Israel’s military, neither personally nor through association with a military governing body. According to the interpretation of international tribunals, this means that even if their statements express genocidal intent, their remarks cannot establish the commission of genocide in Gaza because their intent does not drive the acts of Israeli soldiers in Gaza. 

Some statements were made by members of the War Cabinet, like those by Prime Minister Netanyahu and Defense Secretary Gallant. Netanyahu described reducing the enemies of Israel to “ruins” and compared them to the biblical tribe of “Amalek,” the people of Israel’s mythical enemy, while Gallant called those that attacked Israel on October 7^th “human animals” and said the siege of Gaza was intended to ensure “no electricity, no food, no water, no fuel.” However, when these words are considered in light of the entire statements they were drawn from, it is clear that they express the intent to defeat Hamas (e.g., Gallant’s reference to “anyone who fights against us” and Netanyahu’s statement that Israel’s war aims were the “destruction of Hamas’s military and governing capabilities”) – not to destroy the Gazan population. 

Politics 

South Africa’s lawsuit submitted to the ICJ is malicious and devoid of context, but that does not justify Israeli politicians’ irresponsible statements. The statements regarding Gaza and the Palestinians were made primarily by extreme-right politicians. Those were the same politicians whose job it was to take care of Israeli citizens’ needs as the war commenced: the displaced from the south and then the north of Israel, the survivors of October 7^th, the injured, and even reservists – all those who had to rely on the kindness of volunteers, donors, and civil society while the government was missing in action. These politicians have no influence over the day-to-day conduct of the war on the ground, but in trying to disguise the government’s total failure to do its most fundamental task – protecting its citizens – they chose to inflame the raw pain Israelis are experiencing.

The process at the ICJ illuminates the irresponsibility of Israel’s October 6^th government still in power today (Benny Gantz’s centrist party, the Mamlachti Camp, joined the government shortly after October 7^th to form an emergency unity government). Since it was formed at the beginning of 2023, the government has been dedicated to the overhaul of the judiciary through a legislation package meant to limit its power. According to Justice Minister Yariv Levin and Constitutional Committee Chair Simcha Rothman, the leaders of the judicial reform attempts, the main cause of the judiciary’s overreach was former Chief Justice Aharon Barak, who led an activist Supreme Court that exercised broad judicial review. Two weeks ago, the judicial reform movement received what might be a fatal blow when the Supreme Court affirmed its authority to engage in judicial review on Basic laws and struck down the reasonableness amendment – the one judicial reform law the government managed to pass into legislation.

If crimes have been committed during the war, Israel’s strong and independent legal system will make sure that justice will be rendered.

Ironically, Netanyahu nominated the same Aharon Barak as Israel’s representative to the judicial panel of the ICJ. The 87-year-old Barak, a Holocaust survivor and Israel’s leading legal scholar – who withstood protests outside his home over the past year despite not serving as a public official for over 15 years – did not hesitate when called upon to help Israel. It is Israel’s commitment to the rule of law embodied in Barak that underlined Israel’s argument at the ICJ – as proof that if crimes have been committed during the war, Israel’s strong and independent legal system will make sure that justice will be rendered. The war has shown once again that Israel remains committed to the rule of law, and must withstand the attempts of some of its populist politicians to alter that course. 

Antisemitism 

In his address to the ICJ, Dr. Tal Becker, the Israeli Foreign Ministry Legal Advisor and my colleague at the Hartman Institute, noted that “we live at a time when words are cheap.” He went on to observe that “in an age of social media and identity politics, the temptation to reach for the most outrageous term, to vilify and demonize, has become, for many, irresistible. But if there is a place where words should still matter, where truth should still matter, it is surely a court of law.” 

The term genocide was coined by Raphael Lemkin, a Polish Jewish lawyer who fled to the US after Germany’s invasion of Poland in 1939. Lemkin used the term to refer to the heinous campaign by Nazi Germany to exterminate Jews in the Holocaust. After World War II, Lemkin committed his life to campaigning for legislation enshrining the Genocide Convention in order to prevent the rise of “future Hitlers.”

The weaponization of Jews’ historic legal remedy – the Genocide Convention – against the Jewish state is a reminder of dark days in the world’s history: days in which Jews would be blamed for society’s worst crimes when they were in fact its victims.

To be clear, Israel is not without its flaws. Like every country involved in armed conflicts, it has undoubtedly committed crimes in its decades-long conflict with the Palestinians. And in this war the loss of innocent Palestinian lives is truly heartbreaking. But the claim that Israel is committing genocide is not only factually incorrect but also dangerous. The weaponization of Jews’ historic legal remedy – the Genocide Convention – against the Jewish State is a reminder of dark days in the world’s history: days in which Jews would be blamed for society’s worst crimes when they were in fact its victims.

In a court of law truth should matter, and from a legal perspective Israel’s case is ironclad. However, this legal case is also clad with politics and tinged by antisemitism. Unlike most of the world’s democracies, South Africa has refrained from identifying Hamas as a terrorist organization. The US, Canada, England, and France have stated their outrage at South Africa’s complaint, and in a historic move, Germany declared that it will intervene with the legal procedures as a third party in support of Israel. But with the politicization of today’s international institutions, it is unclear whether Israel will receive a just trial. 

On October 7^th, Hamas engaged in the systematic rape, torture, and slaughter of Jews, making it the single deadliest day for the Jewish people since the Holocaust. But in a remarkable act of blaming the victim, the international institutions of justice are now busy – not trying the offender, but standing in judgment of justifiable steps Israel has taken in self-defense.

Dr. Masua Sagiv is Scholar in Residence of the Shalom Hartman Institute and the Koret Visiting Assistant Professor of Jewish and Israel Studies at the Helen Diller Institute in U.C. Berkeley.