Leonard Grunstein

A Cruel Mockery of Justice

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South Africa instituted a case against Israel at the United Nations (UN) International Court of Justice (ICJ). The Application it filed and the failure of the ICJ summarily to dismiss the specious case are a cruel mockery of justice.

Consider the parties and their bona-fides. The nominal plaintiff is South Africa, which is ranked 54 (with a score of .65) in the Global State of Democracy Initiative-Country Rankings (GSDI). The GSDI is an evidence-based study that evaluates and ranks the state and quality of democracy, including human rights and rule of law, in 173 countries around the world. It’s fair to say that South Africa’s GSDI rating is not exemplary.

However, the real party in interest is so-called Palestine. It is ranked at the bottom (#157) of the GSDI, with a score of 0. This means it is an abject failure, among other things, in such fundamental categories as civil rights and rule of law. This includes many of the rights that citizens of the US and Israel take for granted, which are absent in Hamas controlled Gaza and the PA controlled areas, such as freedom of expression, religion, press, association and assembly. It also means there is a lack of judicial independence, absence of predictable enforcement of law and prevalence of corruption. It should not be a surprise that evil Hamas, in control of Gaza, is antisemitic, anti-Christian, anti-American, racist, misogynistic, anti-LGBTQ, tyrannical, kleptocratic and oppressive. On October 7, 2023, Hamas invaded Israel, brutally murdered over 1,200 Israelis, Americans and people from many other countries, kidnapped and took hostage approximately 240 men, women and children and committed unspeakable atrocities. Since then it has fired over 12,000 rockets against civilian targets in Israel. Hamas also murders and oppresses its own people.

Israel, the nominal defendant, in stark contrast, is solidly among the more highly ranked countries, at 38 in the GSDI (with a score of .745), which is even above that of the United States. Devotion to rule of law and civil rights is entrenched in Israeli society. Israel is still the only truly democratic country in the region. It boasts a genuinely diverse society with freedom of speech, religion and press, as well as, equal protection under the law.

In terms of credibility, it can fairly be stated that true democracies like Israel don’t commit genocide or enslave their people. On the other hand, the real party in interest, evil, tyrannical and terrorist Hamas does not deserve any such presumption, especially given its homicidal credo and actual murderous deeds directed against Israel and Jews. As Admiral John Kirby, White House National Security Council Coordinator for Strategic Communications well noted, Israel is not committing “genocide” against the Palestinians in Gaza. He also stated, “I heard this word ‘genocide’ tossed around. Hamas actually does have genocidal intentions against the people of Israel. They’d like to see it wiped off the map. They’ve said so on purpose. That’s what’s at stake here.”

Consider, would any country intending to commit genocide against a people provide medical care to them? Israel has provided many thousands of lifesaving heart operations to Palestinian Arab children. That’s not what genocidal maniacs do. Even, Hamas’s murderous leader Yahya Sinwar was treated for a brain tumor in an Israeli hospital while serving a prison sentence in Israel for murder. Close relatives of another Hamas leader, Ismael Haniyeh, are also reportedly being treated in Israel. This is normal for Israel and wholly inconsistent with the ludicrous blood libel of genocide being callously and disingenuously hurled at Israel.

Consider too, would a country intent on committing genocide take enemy combatants prisoner and house them in jail rather than kill them? Witness all the pictures of Hamas murderers being taken prisoner by the IDF. That didn’t happen when Nazis were committing genocide; they just brutally murdered those captured. Hamas is even brazenly bargaining to secure the release of their murderous operatives in exchange for the innocents they kidnapped and took hostage.

Falsely accusing Israel of the horrible crime of genocide in its defensive war with evil Hamas is a particularly vicious and odious blood libel.

The crime of genocide is defined in the Convention on the Prevention and Punishment of the Crime of Genocide approved by UN General Assembly Resolution 260 A (III) of 12/9/1948 and entered into force on 1/12/1951. It was adopted in response to the systematic murder of over six million Jews, who were exterminated by the Nazis and their cohorts in the Holocaust. The Nazis were intent on committing real genocide, in what they referred to as the ‘Final Solution’ to the Jewish problem (Endlosung der Judenfrage). In a reprehensible channeling of this ghastly Nazi term, Hamasniks call for ‘One Solution’ of intifada revolution. Both contrived euphemisms have the same meaning, the extermination of the entire Jewish people.

The crime of genocide requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. It is patently absurd to impute such a horrible intent to Israel. Moreover, actual census data belies any such claim. Indeed, the Muslim Arab population of Israel, the PA controlled areas and Gaza has grown not declined.

Use of this explosive and horrendous term to vilify Israel in reference to some mythical misdeeds goes beyond merely being inappropriate and slanderous. It would appear like so many contrived propaganda slogans, false narratives and subterfuges, Hamas is falsely accusing Israel of Hamas’ own criminal wrongdoing and intent, in a cynical attempt to distract attention from Hamas. Yet, no matter how perverse, there are still those who fall prey to these ruses and canards; perhaps, because they too are antisemitic. Nevertheless, the claims against Israel are meritless.

Hamas is a terrorist organization, with the avowed goal, enshrined in its Charter, of destroying Israel. It also espouses antisemitic and genocidal doctrines directed against the Jews and requires an armed Jihad against Israel to eliminate it. Its backer, the Iranian Regime, is no less explicit in its genocidal goal to eliminate Israel. . Both Hamas and the PA also spew classical antisemitism, incite and glorify terrorism and call for Israel’s destruction. This includes promoting hateful antisemitic rhetoric in the media, as well as, teaching children in UNRWA schools and elsewhere to hate Jews.

South Africa, despite explicitly and unequivocally recognizing Hamas’ direct targeting of Israeli civilians and hostage taking by Hamas, as well as, backhandedly mentioning Hamas’ armed attack against Israel territory and criminal atrocities, all clear violations of International Law, instituted a case against Israel before the ICJ. The case arises out of Israel’s legally justified defensive war against Hamas.

The language used by South Africa in the Introduction to its Application Instituting Proceedings before the ICJ is demonstrative of the paucity of its case. It avers that the acts and omissions by Israel complained of by South Africa are ‘genocidal in character’. In essence, they do not actually constitute genocide under the Genocide Convention. The Application is filled with all manner of innuendo and hearsay, but there’s no proffer of actual probative evidence.

The Application is nothing more than a jumble of legalese and preposterous non-fact based assertions that are not only unfounded, but incredulous. The fundamental basis of the complaint is a Hamas generated inflated figure that approximately 21,000 allegedly innocent civilians have been killed in Israel’s defensive war against Hamas. Never mind that Hamas is not credible and Israel has estimated that it has eliminated approximately 9,000 combatants, which are included in that figure.

Moreover, it is Hamas that is purposely putting civilians in harms’ way in furtherance of its criminal goals. Instead of fighting like an army with military bases and battlefields removed from civilian areas, Hamas intentionally chooses to fight in urban areas. Hamas is a determined, criminal and lawless army of murderers, rapists and perpetrators of unspeakable atrocities, who disguise themselves as civilians, embed themselves in civilian areas and use civilians, including children, as human shields. How then can Israel’s prosecution of a legitimate defensive war against such a villainous group be remotely considered genocide? Indeed, notwithstanding Hamas’ repugnant tactics, because of Israel determination to limit collateral casualties, on an objective basis, even using Hamas’ propaganda driven inflated figures, the collateral casualties do not support the fatuous claim of genocide. There are approximately 2 million Arabs in Gaza, approximately 3 million more under PA control and over 450 million worldwide. This means the alleged victims represent only .1%, .04% and .00046%, respectively, of these total population figures. In addition, Israel has over 2 million Arab citizens.

To put this in perspective, the Genocide Convention was based on the Holocaust, where the Nazis and their cohorts intentionally and cruelly murdered over 6 million Jews out of approximately 9.5 million Jews in Europe. By way of comparison that’s approximately 2 out of 3 Jews in Europe or 63%. Nobody in their right mind would accuse the allies of genocide in trying to eliminate the Nazis and incurring civilian casualties in the process.

To accuse Israel of genocide is absurd. Indeed, real military experts like John W. Spencer and Richard Kemp have commended Israel for going beyond the call of duty and achieving significantly better outcomes that has been experienced by most armies in the world in practice in modern warfare. Spencer posted on X that “Israel has implemented more measure to prevent civilian casualties in urban warfare than any other military in the history of war. This includes many measure the U.S. has (or has not) taken in wars & battles but also many measures no military in the world has ever taken.” The results speak for themselves. As Kemp reports, Israel’s ratio of combatant deaths to collateral casualties is significantly better than the UN average of collateral damage incurred in other global conflicts. Under the circumstances, Israel is doing an outstanding job of limiting civilian casualties. War is not pretty, but to accuse Israel of even remotely committing genocide is outrageous.

The hypocritical double standard South Africa urges be applied to Israel is not only obnoxious, it is a prima facie case of antisemitism under the IHRA working definition. It should also be noted that South Africa had over 27,000 murders in the 2022/2023 fiscal year reporting period, many of whom were women and children.

Hamas actually invaded Israel intending to commit the horrendous crime of genocide against Jews. To claim that Israel by defending itself in accordance with the laws of war, seeking to free the hostages taken by Hamas and trying to prevent Hamas’ threatened renewal of its murderous rampage and unspeakable atrocities is somehow committing genocide is an incoherent moral inversion. Yet, South Africa brazenly brought this absurd case before the ICJ. Issues have been raised about its motives including arising out its close ties to Hamas and the terrorist Iranian Regime that backs Hamas.

In its order of interim relief, on January 26, 2024, the ICJ did not grant South Africa’s demand that an immediate ceasefire be ordered. The ICJ also noted it was “gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups”. It went on to call “for their immediate and unconditional release”.

The legal aspects of this matter have become even more complicated given the recent disclosures about staff members of UNRWA, who reportedly actively participated in the October 7, 2023, Hamas massacre of Jews and others in Israel. UNRWA’s summary firing of some of these staff members and the announcement that an urgent and comprehensive independent review of UNRWA will be conducted is an implicit admission of wrongdoing. However, this is just the tip of the iceberg, as reported in a joint Hearing of the House Foreign Affairs Subcommittee on Oversight and Accountability, under the Chairmanship of Representative Brian Mast, and Subcommittee on Global Health, Global Human Rights, and International Organizations, under the Chairmanship of Representative Chris Smith, on January 30, 2024.

It appears that a dozen UNRWA employees directly participated in the October 7th massacre and that as many as 15% of UNRWA employees in Gaza might be members of Hamas or other terror groups. This puts the revelation by Hillel Neuer’s UN Watch of the details of how UNRWA teachers in a 3,000-member UNRWA staff Telegram group cheered and celebrated Hamas’s October 7th massacre in a completely different light. It is also reported that the UNRWA staff in the group shared photos and video footage of those events and prayed for the terrorists’ success and for Israel’s destruction, in clear violation of UN rules. As an aside, it should be noted that UNRWA reportedly has approximately 13,000 employees in Gaza, earning an average of over $120,000 per year and with executive salaries averaging in excess of $225,000 per year. All this to indoctrinate generations in a culture of Jew hatred, terrorism, misogyny, racism, intolerance and victimhood that eschews progress and personal responsibility and instead embraces martyrdom.

The fact that UNRWA staff participated personally in perpetrating crimes against humanity, including murder, unspeakable atrocities and kidnappings and many other UNRWA staff members celebrated instead of decrying the horrifying savagery and wickedness of October 7th is egregious and shameful. It should disqualify UNRWA and by extension the UN from playing any credible role in the ICJ proceedings. Indeed, given that the ICJ is creature of the UN and an affiliate of UNRWA, it is submitted that the ICJ should also be disqualified and the case dismissed.

A bipartisan letter to Secretary of State Blinken, dated January 30, 2024, is reportedly being circulated by Representatives Josh Gottheimer, Claudia Tenney and Ritchie Torres. Besides calling for the resignation of UN Secretary-General Antonio Guterres and UNRWA Commissioner-General Phillipe Lazzarino, it goes on to state,

“It is unacceptable that U.S. tax dollars, allocated to assist innocent Palestinians, instead funded tunnels under UNRWA buildings and paid for terrorists to murder, rape, kidnap and hold innocent civilians hostage.”

The House Foreign Affairs Committee, on a bipartisan basis, voted on February 6, 2024, to advance a bill that would immediately and permanently cut off all US funding of UNRWA. A bipartisan proposal was also made in the Senate to defund UNWRA.

As more disturbing facts come to light about the nature and extent of ties between Hamas and UNRWA, including the reported almost interchangeable personnel of both organizations and their shared culture of Jew hatred and criminality, it suggests that UNRWA might be so compromised that it is arguably just an alter ego of Hamas in Gaza. At the very least UNRWA appears to be a party supporting and/or cooperating with terrorist Hamas in the achievement of its nefarious goals. Under the doctrine of respondeat superior, an employer is liable for the wrongful acts of employees, acting within the scope of their employment. This includes if the employee’s action is common enough that it could fairly be deemed to be characteristic of the job. Given the culture of Jew hatred, terrorist affiliation of so many of the employees, it is arguable that UNRWA is liable. However, these claims may not be brought in an ordinary court in the US, because the UN enjoys legal immunity pursuant to its Charter and as embodied in the Convention, dated February 13, 1946, on the Privileges and Immunities of the UN (Convention), acceded to by the members.

This poses a most intriguing issue. The UN, through its agency UNRWA, is a likely wrongdoer and should be joined as a third-party defendant (impleaded) in the case. UNRWA should not be able to avoid liability. At the very least the UN can and should accede to jurisdiction by the ICJ, under Article VIII of the Convention, to hear a claim against the UNRWA, as the judicial organ of the UN established to enforce treaties. To do otherwise would undermine any shred of remaining credibility that the UN might still possess. However, there is also the problem of the ICJ, as an organ of the UN, the parent of UNRWA, having a fundamental, profound and irremediable conflict of interest that would prejudice its independence as a tribunal hearing the case. It is suggested the better remedy would be for the UN to waive immunity and submit to US federal court jurisdiction in any claim asserted by Israel against UNRWA.

The sordid role of UNRWA in this horrible tragedy also puts into question South Africa’s continued commitment to funding UNRWA. So many countries like the US, UK, Germany, Italy, the Netherlands, Switzerland, Japan, France, Australia, Canada and Finland have suspended funding because of the malign activities noted above, but not South Africa. In addition, the UN is pressing everyone to restore funding. Given these grievous conflicts the ICJ should recuse itself and dismiss the case.

The funding of UNRWA raises other issues as well. Hamas is a designated Foreign Terrorist Organization under US law. Australia, Canada, the European Union, Japan and the UK have also all designated Hamas as a terrorist organization.

Funding or providing material support or services to a terrorist organization is generally prohibited and the subject of severe criminal penalties.

Furthermore, the taking of hostages is prohibited by the International Convention against the taking of hostages, dated December 17, 1979, acceded to by members of the UN, including South Africa. Similarly, financing of terrorism is prohibited under the International Convention for the Suppression of the Financing of Terrorism, dated December 15, 1997.

In addition, there is the Treaty the International Convention for the Suppression of Terrorist Bombings, dated January 12, 1998, which criminalizes the use of an explosive or incendiary weapon or device that has the capability to cause death, serious bodily injury or substantial material damage as was done by Hamas on October 7th. Most relevant though for this analysis is that the criminal offender is not only the person on the point who directly commits the offence; it also includes those who organize or direct others to commit the offence covered under the Treaty or in any other way contribute to the commission of one or more offences by way of persons acting with a common purpose.

It would appear that UNRWA, Iran and South Africa have committed violations under these bedrock provisions of International Law and they should not be ignored.

It is respectfully suggested that Israel should assert a counterclaim against South Africa arising out of the malevolent actions of Hamas, based on South Africa’s providing of material support and services to Hamas, including, directly or indirectly, through its funding of UNRWA.

The Iranian Regime should also be impleaded as a third party defendant in the ICJ case for violating these Treaties. In this regard it should be noted that besides providing weapons and reportedly being involved in the planning of October 7th, evidence has emerged that the Iranian Regime made direct payments to Hamas and Sinwar totaling over $150 million. Secretary Blinken also reportedly stated in a recent press briefing in Doha, Qatar, that Iran was responsible for “Attacks in Syria and Iraq, attacks on Israel from Lebanon, attacks on international shipping in the Red Sea, attacks in Jordan that killed three U.S. service members, and of course, the attack on Israel on October 7th. Each and every one carried out by groups trained, armed, funded, and formed by Iran.” Besides potential criminal exposure, civil claims may also be asserted against Iran for the untold billions and perhaps trillions of dollars in damages arising out of or relating to Hamas’ wrongful actions, as well as those of Iran and its proxies, for which Iran is responsible.

The US should also proceed against UNRWA and the employees who committed these wrongs. This includes not only defunding UNRWA but also prosecuting the wrongdoers under the Palestinian Anti-Terrorism Act of 2006. The Taylor Force Act must also be vigorously enforced to prevent the PA’s plan to reward the October 7th terrorists under its Pay to Slay program and to curtail any further funding of UNRWA given its role in providing material support and services to terrorist Hamas. This includes US agencies, NGO’s or those misguided souls who might otherwise mistakenly continue to fund UNRWA. Indeed, UNRWA itself should be designated a terrorist organization..

The US and the other nations, which suspended funding of UNRWA, should also do the right thing and join in defending Israel at the ICJ. If we are to have a society of nations based on respect for the rule of law then we must be devoted to doing so and not be silent in the face of a miscarriage of justice.

May Israel be vindicated, the evil that is Hamas and its cohorts be eradicated and the hostages and valiant soldiers of the IDF be returned safely home.

 

 

About the Author
Leonard Grunstein, a retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He also founded Project Ezrah and serves on the Board of Revel at Yeshiva University and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal and other fine publications.
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