In their often shambolic and occasionally hysterical appearance before the International Court of Justice last Friday, at no point did the lawyers representing Israel give concrete arguments or convincing evidence that Israel’s three-month siege of Gaza should not be considered an act of genocide. Faced with a credible accusation of a crime one of their own called the “epitome and zenith of evil,” “the crime of crimes,” “the ultimate in wickedness,” they produced no proof they were not guilty.
Though they trumpeted the aid Israel is allegedly allowing into Gaza, Israel’s lawyers could not answer how it came to be that more than a million Palestinians will soon face outright famine. The Israel Defense Forces have to confront Hamas wherever they find its fighters, the lawyers insisted. But that cannot explain why a full 45 percent of Gaza’s housing stock is now a gray ruin or why entire city blocks are dynamited long after the area is cleared of the enemy; why indeed some of the oldest churches and mosques in the world are now husks. Proclaiming the high moral goal of rescuing hostages and insisting at every turn that the IDF obeys the rules of war, the lawyers gave no account for why Israeli soldiers felt able and entitled to shoot their own on sight: three men, shirtless, speaking Hebrew, waving a white flag. The leaflet drops, the text messages, the voicemails: This strategy of forewarning Gaza’s civilians was held up as an example of the army’s duty to international law, though no rebuttal was offered for why unguided “dumb” bombs are dropped on the very towns and villages and camps Palestinians were told were safe from strike—the same places those leaflets informed them would guarantee their lives.
Instead, Israel’s lawyers and agents complained. The charge of genocide brought by South Africa in The Hague was “a libel” designed to “delegitimize” the Israeli state and society. South Africa, which gave its submission to the court on Thursday, was seeking to “weaponize” the Genocide Convention in a “concerted and cynical attempt to pervert” the law’s true purpose. The lawyers, each in their turn, performed the usual acts of contrition and hand-wringing for the victims of so-called collateral damage: the “tragic … heartbreaking … terrible” civilian death toll that it attributed not to the designs and intent of the military but to the “harsh realities” of urban combat.
South Africa is seeking urgent “provisional measures”—an emergency ruling from the court based on the plausibility or possibility of a genocide taking place. South Africa had to prove Israel has a prima facie case to answer. In these preliminary hearings, there is no burden of proof. Evidence is not checked, witnesses are not called, facts are not validated. Truth, at this stage, does not matter. The Israeli team must have been thrilled. Galit Raguan, stressing at all times the IDF’s difficulty fighting in civilian areas used by Hamas for cover, baldly claimed that “hospitals have not been bombed.” The World Health Organization has meanwhile documented 600 attacks on Gaza hospitals, clinics, and ambulances since October; there is no functioning hospital at all in Gaza’s north. Raguan later pointed proudly to a picture of an IDF soldier holding a handgun allegedly found in an incubator for newborns, as if a single pistol would justify the shelling of the hospital it was found in—an attack that according to her never happened. Earlier, Tal Becker, a legal adviser to Israel’s Ministry of Foreign Affairs, stated that Raphael Lemkin—the deeply flawed and compromised architect of the theory of genocide—“witnessed the unspeakable horrors of the Holocaust.” Lemkin did not; he was in the United States by 1941. On such shaky ground, it was very brave for Becker to then argue that South Africa’s 84-page, tightly argued written submission to the ICJ, sourced and footnoted almost exclusively from U.N. documents, was “curated, decontextualized, and manipulative.”
The defects of the Genocide Convention run deep. Unlike a charge of common murder or even crimes against humanity, and contrary to our impression of the breadth of its protection, the Convention does not shield everyone: Certain groups, such as ethnic or religious minorities, can be victims, but anyone outside that boundary—political groups, say, or the disabled—do not qualify. Trickier still, it demands prosecutors prove the perpetrator’s “intent to destroy,” an almost impossibly high bar to clear, for a genocidaire rarely brandishes his own smoking gun. What South Africa had to demonstrate on Thursday was an equation: clear expressions of intent plus a persistent pattern of atrocity. Since October 7, and since the order was given for a bombardment without precision or mercy, Israeli leaders have been determined to make that equation easier to solve.
When Prime Minister Benjamin Netanyahu implored the troops and the nation to “remember what Amalek did to you,” he was citing a biblical argument for acting indiscriminately, and his colleagues have dutifully followed this pattern of collapsing the crucial distinction between civilian and combatant, between war and vengeance. “We will eliminate everything,” said Defense Minister Yoav Gallant, erasing the line between Hamas and not-Hamas. Finance Minister Bezalel Smotrich did the same with his appeal to “take down Gaza,” as did National Security Minister Itamar Ben-Gvir when he described the whole Gazan population, guilty or otherwise, as “terrorists.” As Malcolm Shaw, an international lawyer on the Israeli team, conceded, each of these men are the principals of the “war Cabinet” that has the power to shape state policy and issue direct orders. Yet Shaw characterized South African lawyer Tembeka Ngcukaitobi’s thorough recitation of these quotes as “little beyond random assertions,” insisting instead that these were rash statements pronounced in a moment of national trauma. Better, Shaw said, to give more weight to the panicked statements of exculpation made by Netanyahu and others in the week before the ICJ hearings.
(Not unrelatedly: Parties to ICJ disputes are allowed to appoint their own ad hoc judge to bulk up the usual 15-member panel. Israel nominated Aharon Barak, former president of the Supreme Court, who solemnly swore to exercise his powers “honorably, faithfully,” and “impartially.” On November 1, Barak stated, “I agree totally with what the government is doing.” Square that circle.)
Throughout the four-hour hearing, Israel’s legal team referred again and again to Hamas, to its atrocities, to its “genocidal” desire to end all Jewish life. This is the rhetorical crutch—a wind-up toy’s mechanical catchphrase—for committed defenders of Israel’s conduct in Gaza, and the early speeches looked more like a boisterous propaganda effort than a calm legal appeal. Yet the constant drawing of attention away from Israel’s actions and toward those of Hamas also had a subtle legal function. At the core of Israel’s arguments on Friday was a form of blackmail: a polite, legal, and deferential kind of blackmail, but blackmail nonetheless.
South Africa asked the court to rule that Israel should “immediately suspend its military operations in and against Gaza,” in the hope that the mass killing of Palestinians might cease. Such a verdict, argued Christopher Staker, one of Israel’s lawyers, would be an “irreparable prejudice to the rights of the respondent,” meaning Israel’s right to defend itself from attack. Because Hamas was not a party to the dispute between Israel and South Africa, it would not be bound by the court’s judgment. If Israel were asked to stop bombing and Hamas were not, then by defending itself in any way Israel would be in immediate contravention of the court’s ruling. Military action of any kind—genocidal or not—would be illegal. The nation would be, as Becker put it, “denied the ability to defend its citizens.” The court, legally speaking anyway, is being held responsible for Israel’s security.
Never mind that the real issue of substance is the methods Israel uses to “defend itself,” not the right to self-defense as such: It is on this crucial point of rights that the ICJ’s judgment will stand or fall. If the judges agree with Staker’s subtle point and decline to call for a stop to the military campaign, the court will be denounced as morally bankrupt and utterly neutered by anyone who believes the Palestinians have their own right: a right to exist untroubled in the lands of their birth.
However humane and passionate and well reasoned the South African case, it contained a critical flaw. It failed to mention the simple fact of the ongoing war—this harsh, sanguinary war. And its omission meant that the Israeli lawyers were allowed to talk about nothing else. The South African team needn’t have feared talking about the conflict: A genocide is still a genocide even if it takes place against the backdrop of war. Indeed, this is the case in every classic example: the Armenian Genocide, Rwanda, Bosnia, the Shoah. But in presenting their argument this way, the South African lawyers showed themselves to be caught in the rhetorical trap that can so easily snare anyone who believes the Convention is a faultless instrument of international justice.
The Convention—and the theory of genocide generally—corrupts our thinking about mass murder. To make the case that a people are suffering or have suffered genocide, advocates and lawyers often have to warp the details of the story so that the victims more closely resemble the familiar archetype. In this instance, it is an ironic and slightly grotesque distortion: To qualify as victims, to earn international sympathy, Palestinians must appear to be just as passive and just as innocent as the Jews once slain in the Holocaust. Then again, bereft of a diplomatic patron and legal linebacker like Israel has in the United States, these are the tactics Palestinians have to resort to: cut out from all other avenues of political pressure, such methods are not first preferences but last resorts.
Thirty years ago, the regime of human rights and international law was hallowed as a salve and corrective for the crimes of the recent past: a progressive vision of cold, hard legal doctrine to tend swiftly to the victims of atrocity anywhere, at any time. But 30 years of hypocrisy and unpunished, uncondemned violations of that same law and those same rights have delivered us breathless to this moment of extreme precarity. The honor and esteem of the court is at stake, and with it the whole value and worth of international law.
