There was so much history and so much tragedy in that room. For two days, ending today, the International Court of Justice (ICJ) in The Hague witnessed a clash between two nations, each shaped by acts that live on in the global lexicon of good and evil.
In one corner, South Africa, which only a generation ago emerged from apartheid, still the universal shorthand for the wickedness of racism. In the other, Israel, established just three years after the Nazi murder of 6 million Jews and the attempt to eradicate the Jewish people from the face of the Earth. In a global courtroom, those who bore the scars of those two great crimes – apartheid and the Holocaust – squared up against each other, as one accused the other of the gravest crime of all: genocide.
The two never debated. There was no cross-examination or back and forth. Instead, on Thursday morning, South Africa’s legal team had three hours to argue that Israel’s war against Hamas amounted to genocide, the attempt to destroy a people “in whole or in part”. That’s the language of the genocide convention agreed by the world in 1948 – the year of Israel’s birth, as it happens – following the Holocaust and to ensure nothing like it ever happened again. On Friday, Israel had three hours to defend itself. What the court heard were two entirely different narratives, as if from two different universes. To follow the two sessions was to see where abstract ideals of law and justice hit the concrete realities of politics – and to feel a rising sense of fury.
South Africa built its case on the sheer scale of the suffering endured by the Palestinians of Gaza: the estimated 23,500 dead, according to the Hamas-run health ministry, most of them civilians; the homes destroyed and neighbourhoods razed, displacing the overwhelming majority of the population; the desperate conditions in which many are living, deprived of sufficient food, water or medicine. It argued that this suffering was no accident, but rather the product of an Israeli intention to destroy Gaza’s Palestinians – evinced by a string of blood-curdling statements made by Israeli public figures, variously promising to flatten, nuke or erase Gaza. That combination of a pattern of behaviour and intent, said the South African lawyers, meets the legal definition of genocide.
Israel’s argument was captured before they’d even made it, by a cartoon in Thursday’s edition of the Yediot newspaper. It showed, kneeling before the ICJ bench, four women, bloodied and bruised – Israeli hostages held by Hamas in Gaza – as a judge asks: “What do you have to say in your defence?”
As far as Israel is concerned, it is fighting a war of self-protection. Its intention is not the destruction of the Palestinians of Gaza, but the defeat of the Hamas fighting force which killed, raped or mutilated more than 1,200 people, mostly civilians, in southern Israel on 7 October. Yes, it conceded, that effort has cost thousands of Palestinians their lives, but that is the fault of what Michael Walzer, the distinguished philosopher of the morality of war, calls an “asymmetry trap” laid by Hamas.
I spoke to Walzer this week and he explained that, by embedding itself and its equipment in the civilian infrastructure of Gaza – tunnels under hospitals, rocket launchers in schools – “Hamas has designed a war that Israel can only fight by killing civilians”. The Israeli lawyers in The Hague echoed that logic.
Besides, they added, Israel gave regular warnings to Palestinians to get out of harm’s way, hardly the action of a state bent on genocide. As for the statements of those politicians and others, the lawyers insisted that most were fringe figures with no role in directing the war – and when, say, the defence minister referred to “human animals” in Gaza, what he meant was Hamas.
Those, in outline, were the two narratives. Which one you buy will depend on, and reveal something of, how you see the world. But the law is meant to rise above mere subjective opinion. What’s the correct legal judgment on the case South Africa has brought? Some experts in international and human rights law applaud it for detailing where and how Israel has crossed the moral or legal line, but others, including several who hold no brief for the Israeli government, think it doesn’t stack up.
If South Africa had accused Israel of war crimes or even crimes against humanity, the position, they told me, would have been stronger. But to get in front of the ICJ, you have to allege genocide – and that’s a bar this case does not clear. Given that Israel was actually attacked on 7 October, they say, the court will find it hard to conclude that the intent was not self-defence.
But this is not solely about the law. It’s also about politics. The judges are elected by the UN: geopolitical allegiances are likely to intrude. What’s more, while the court can take years to rule on the core accusation, it can order “provisional measures” in weeks – and those could have an immediate, real-world impact, legally and politically. In the case of Russia v Ukraine, the ICJ ordered Moscow to halt all military action. If the court feels obliged to follow that precedent, the consequences would be far-reaching.
And not only for those on the ground. This is also a battle in the court of world opinion. If opponents of Israel can, even tenuously, claim ICJ approval for the accusation of genocide, they will seize it. After all, plenty were already making that charge on 8 October, when Israel had barely responded to the Hamas massacre – eager, perhaps, to strip Israel once and for all of the moral weight associated with a Jewish refuge founded after the Holocaust, to cast it not as a haven for victims of genocide but rather as a perpetrator of genocide, thereby cancelling out any remaining call on the world’s sympathy.
Because these things always get tangled up together, even a provisional judgment risks being pinned not only on Israel but on all those who, whether through family or history, are bound up with it. Witness the academic who reportedly arrived for work at the University of Amsterdam on Thursday morning, as the ICJ hearing opened, to see the words “Jews out” smeared on their door.
Hence that rising sense of anger. At Hamas, whose murderous rampage on 7 October brought such terrible retribution on Gaza, as it was always bound to – raining fire not on Hamas’s leaders, safely abroad, and not on the Hamas men protected in their underground city, but on the civilians they hid behind and who had nowhere else to go.
And anger at Benjamin Netanyahu, leader of the worst, most extreme government in Israel’s history. For imposing a siege that starved Gaza of humanitarian essentials and which, in Walzer’s words, “could only hurt the civilian population, it could not hurt Hamas”. And for engaging in, and indulging others’ use of, vile rhetoric that might have garnered a few admiring clicks on the Israeli right but could see Israel and Jews around the world slapped with a new badge of shame.
Netanyahu opened the door to this case by ushering into power an ultra-nationalist far right whose bigotry is unbound and whose rantings ended up as evidence at The Hague. He did that because he needs their votes if he is to stay in power and stay out of jail. But the cost, both for the people of Gaza and the people he claims to lead, could barely be heavier.
Jonathan Freedland is a Guardian columnist
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