The ICJ – We Only Have Ourselves to Blame

Today the ICJ will begin the hearings over the claims of genocide brought by South Africa against Israel, the consequences of which can be problematic to Israel, to say the least. While there won’t be any immediate rulings, just as there won’t be any legal repercussions, the diplomatic and political consequences might be devastating. That is, of course, if the court decides to rule against Israel and while many people seem to have made up their minds on whether Israel is committing genocide in Gaza, this isn’t a closed case.

However, even the fact that we got to this point should be worrying. Of course, anyone can be accused of crimes against humanity, but usually the case is built before bringing it to the ICJ. And this is also the case here. Normally very few states are brought for the court accused of genocide, and there’s a reason for this, in order for something to be a genocide there needs to be a clear intent of committing genocide. As stated in article II in the Convention on the Prevention and Punishment of the Crime of Genocide:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

Particularly the third paragraph is crucial here: “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part“. “Merely” killing large numbers of people alone doesn’t qualify as genocide.

Fortunately, for South Africa at least, Israeli members of the government haven’t been shy of making statements, which can give the suspicion that genocide is indeed what Israel is planning. Now, before anyone gets the wrong idea, I, personally, don’t believe that this is the case. While I do have my reservations about the conduct of Israel in Gaza I don’t believe that a genocide is what is intended. But while I disagree with those who are convinced that we are planning a genocide, I can’t really fault them for believing so, at least not solely based on ill intend from their side (and there are many who believe the worst about Israel by default, even without giving it a fair consideration before making a conclusion).

Let’s just begin with the most recent reason, the statements by MK Nissim Vaturi, who just yesterday, the day before the hearings begin, decided to double down on his comments about burning down Gaza. While he did later try to add some nuance to his statements, insisting that “We are against harming innocents of course,” the damage is still done. His first statement came in November, where he stated that “we” (Israel) need to burn down Gaza, that there ” are only tunnels, Hamas, and accursed terrorists who murdered children and are holding children hostage. We have to crush Gaza, Gaza is Hamas.” Again, later that day he claimed that he was being misquoted, that he only talked about Hamas and terrorists, though he didn’t make that clear when he initially made the statements.

Then there’s Heritage Minister Amichai Eliyahu from Otzmah Yehudit, who made frontpages with his statement that Gaza should be nuked. Though he did later try to limit the damage, claiming that he “obviously” didn’t mean it literally, the damage was already done. Netanyahu’s response was to exclude him from the cabinet meetings, but Eliyahu was participating in a cabinet phone meeting later that day. And even though Eliyahu himself tried to insist that he didn’t mean it literally, he did argue that Israel shouldn’t allow humanitarian aid to enter Gaza, a statement he never retracted.

National Security Minister Itamar Ben-Gvir also had some thoughts to share when he declared that “when they say that Hamas needs to be eliminated, it also means those who sing, those who support and those who distribute candy, all of these are terrorists.” In an area where it can be difficult to say who does and who doesn’t support Hamas, and the general sentiment among the government politicians seems to be that all Gazans are supportive of Hamas, one could get the impression that Ben-Gvir had all of them in mind, particularly when one considers Ben-Gvir’s history of explosive comments about the Palestinians.

Then there’s Finance Minister Betzalel Smotrich, who consistently has argued against humanitarian aid being allowed to enter Gaza, and who presently is arguing for the “encouragement” of Gazans to leave Gaza, preferring “200,000 over two million” Palestinians in the strip. One of the considerations of genocide is whether humanitarian aid is allowed to access civilians in need, or if the civilians are prevented from receiving any form of crucial aid the lack of which can cause unnecessary suffering or death. Add to this his comment about Ben-Gurion not finishing the job of cleansing Israel of Palestinians or wiping out the Palestinian city of Huwarrah, and it would be easy to get the impression that Smotrich really would prefer to take advantage of the situation to “finish the job”.

Finally there’s the PM himself, Binyamin Netanyahu, who in a televised speech on October 28 talked about the war against Amalek. According to the Torah, Amalek is the symbol of all evil turned against Jews, which the Jewish people is commanded to destroy whenever it appears. That Netanyahu used Amalek to talk about Hamas was bound to become a problem, something which was mentioned already after the speech by various sources, for example the Jewish News of Northern California, which stated that:

“Although Netanyahu referenced only Deuteronomy 25:17, positioning Hamas as akin to Amalek — even if undertaken rhetorically — is tactically, strategically and morally wrong-headed. The prime minister’s words are read closely and taken seriously in diverse quarters. Netanyahu’s words can be read or, better put, misread as intended to ground and justify Jewish “holy war” in Gaza. In recent days, publications in places such as Turkey, India, the U.S. and Bosnia and Herzegovina did just that. Netanyahu and so many of us regard the actions of Hamas on Oct. 7 as evil. However, to invoke Amalek in such a way and without elucidation now is not appropriate.”

Again, like the other politicians mentioned, Netanyahu later did try to clarify that he obviously only talked about the terrorists themselves, not about all Palestinians.

These are only a few examples of Israeli leaders and public figures, who made inflammatory statements, which were bound to cause problems for all of us.

Now, an event like what happened on October 7 is obviously causing deep anger, frustration and rage. And to be fair, I doubt that there are many of us who didn’t feel one or more of the sentiments expressed by these politicians. It is only natural after what happened, and it has been something I’ve been fighting myself, not to give into the hatred, anger and rage, which is a natural consequence of Hamas brutal and murderous terror attack. And we have all made stupid comments to each other, many we probably later regret. But there is a difference between being an ordinary person, who voices his frustrations, sorrow and anger to friends or even strangers on the street, and then being the people in charge of the country, who know that they are being observed by the whole world, who know that their choices and decisions will have crucial consequences for all of us. These are people, who are elected to be our representatives, to bear the responsibility, and to be the “adults” among of us. They are supposed to be the examples of responsible leadership, who insist on acting in a way which considers the good of the people. But here we have been dealing with petty people, who are more concerned with making statements which might satisfy their electorate, and which lack any thought. The fact that they all later have to come out and clarify that they “obviously” don’t mean what they said, just shows the problematic nature of their behavior. This shouldn’t have been necessary, since they should have understood that their statements were damaging to Israel and the Israeli people. And that this is the case is evident with the hearings in The Hauge beginning today. If it wasn’t for all these statements, the claim that Israel is committing a genocide would lack the proof of intend, the one thing which is required to make this accusation. But our politicians in and around the government have seemed all too willing to give the enemy that one argument for bringing the case to the ICJ.

Now we just have to wait and see how it all plays out.