The coming hearings on South Africa’s genocide case against Israel at The Hague have sparked concerns among Israel’s friends. But while the political effect of such calumnious charges cannot be discounted, two things should be known: the genocide charge is legally very weak, and the court in question is a bit of a joke.
There is more than one “The Hague,” as I learned in my years of leading the coverage there for AP (Associated Press) in my role as Europe-Africa Editor. The Dutch city houses the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia, both of which have the authority to issue arrest warrants. That’s why Serbian miscreants Slobodan Milosevic and Radovan Karadzic were arrested, and why warrants are out for deposed Sudanese President Omar al-Bashir and now for Vladimir Putin.
The case against Israel is being heard this Thursday and Friday at the International Court of Justice (ICJ), which is a far more political beast. Established in 1945 under the United Nations to address legal disputes between states, it has no enforcement powers at all.
To illustrate this, consider the case involving Azerbaijan, which 13 months ago started blockading the “Lachin Corridor,” cutting off the 120,000 ethnic Armenians in disputed Nagorno-Karabakh from the world. Last February, the ICJ ordered the blockade to be lifted immediately in highly explicit and rather imperious language.
Azerbaijan ignored the order completely and made the blockade hermetic in June, sparking charges by respected international jurists like Luis Moreno Ocampo, the first chief prosecutor of the ICC, of “genocide by starvation.” It then attacked the exhausted enclave in September, compelling the entire population to flee to Armenia.
Azerbaijan’s kleptocratic ruler, Ilham Aliyev, could make a mockery of the court for the simple reason that his pursuers had no teeth. The only way a country can be punished for ignoring the ICJ is if the UN Security Council takes action, for example, by backing economic sanctions or a military response. But the Security Council can do that even without the ICJ, whose rulings are thus essentially meaningless.
Adding to the court’s un-seriousness is a political aspect that comes from the fact that the 15 judges are appointed along a regional key to represent countries, including the countries involved in any case, and they rarely stray from the positions of their governments.
That’s why Israel got to choose a judge. Indeed its choice, Aharon Barak (the same former Supreme Court chief justice that the Netanyahu coalition has been disgracefully besmirching), may well be the most independent-minded judge on the panel this week.
None of that means that it would be helpful to Israel to be accused and then convicted of genocide in this venue. World public opinion, which does not care too much about nuance, does not distinguish between the various courts. But is a conviction likely?
No matter how political the court may be, it must consider genocide as defined by the Genocide Convention, a document approved by the UN General Assembly in 1948. Both Israel and South Africa recognize this convention, though its wording may surprise most people.
It defines genocide as any of a series of “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group” – which include killings as well as “causing serious bodily or mental harm to members of the group” and “imposing measures intended to prevent births” or “forcibly transferring children of the group to another group.” It does not require the killings to be large-scale, as most people would assume – nor that deaths even occur.
The key is the "intent"
Moreover, the key is “intent” to harm a group. The US-led coalition is estimated to have killed 10,000 civilians in its nine-month operation to rid the Iraqi city of Mosul of ISIS, but that was the unwanted outcome and not the intent. Exactly as in Gaza.
Indeed, the firebombing of Tokyo, the destruction wrought upon Hamburg and Dresden, or the nuclear bombs dropped on Hiroshima and Nagasaki – all of which were aimed at civilians – present far better cases than Israel’s campaign in Gaza, since Israel seeks to remove Hamas and not to kill Gazan innocents.
So too, without question, did the massacre Hamas perpetrated on October 7 – not only with intent to kill civilians, but in the most gruesome and cruel fashion (which, of course, would be irrelevant to the charge of genocide – as indeed would the scale of any of these killings).
I HAVE argued myself that there was a wiser course in Gaza than to immediately go in, days after the massacre, with guns blazing and tanks rumbling and planes dropping bombs. I would have kept the world thinking about the pogrom, built a global coalition against Hamas and Iran, and fought for the restoration of a reinvigorated Palestinian Authority in Gaza. I would have insisted on peace with Saudi Arabia immediately, blockaded the strip for real, and negotiated to release the hostages.
The assault could have waited a few months. The invasion, when it happened, was a monumental gift to Iran, which clearly was hoping for exactly the situation that has been created today. It could hardly have worked out better for the global jihad movement; perhaps Iran might have preferred even more Gazan casualties.
Once the decision was made to go in, though, with the plausible and necessary goal of removing Hamas, there seems to be little choice but to see it through to the end, perhaps doing more than it has to be careful. And while the war is ugly, to be sure, it is not materially uglier than the fight to uproot ISIS – which was far less well-armed and entrenched – from Mosul, Syria’s Raqqa, and the other unfortunate cities that had fallen to Hamas’s fellow barbarians.
I would advise Israel to ask the ICC to issue arrest warrants for Yahya Sinwar and the other criminal leaders of Hamas, and also for the outrageous Ayatollah Khamenei of Iran, for the genocide committed against Israeli Jews and Arabs on October 7.
And as for the issue at hand this week at the vastly less powerful ICJ? The situation in Gaza – where the IDF does not strenuously dispute the local figures of over 20,000 dead, merely claiming about a third are Hamas “fighters” – is undoubtedly a colossal tragedy. But it does not qualify as a genocide. You don’t need to be Aharon Barak – the survivor of a real genocide in World War II – to know it.
The writer is managing partner of the New York-based communications firm Thunder11. He is a former Cairo-based Middle East editor and London-based Europe/Africa editor of the Associated Press, former chairman of the Foreign Press Association in Jerusalem and author of two books about Israel. Follow him at danperry.substack.com.