One of the first things law students learn is the distinction between factual truth and legal truth. The mere fact that justice may lie with one side does not necessarily lead to such a determination in a legal proceeding. This is the reality that Israel currently faces in the international arena following the recent proceedings at the International Court of Justice (ICJ) in The Hague. The factual truth is that Israel does not engage in genocide. The main reason that legal truth may become complicated lies in the outrageous and dismissive statements made by politicians, pundits, celebrities, and even soldiers calling for the flattening of Gaza, the use of atomic bombs, and rejecting the distinction between involved and uninvolved persons.
To prove a genocide from a legal perspective, one must demonstrate both the act – causing harm to a national, religious, or ethnic group – and a specific intent to harm the group with the intent of destroying it, either entirely or partially. Both elements, the act and the intent, are necessary; one alone is insufficient. Factually, there is neither the act nor the intent. However, legally, as demonstrated in the presentations by South Africa, actions can be portrayed one-sided, and when these statements are collected, a narrative emerges where statements made by leading and fringe politicians alike, trickling down to the general public (celebrity statements) and the military (soldiers’ statements), create an appearance of intent.
The ICJ proceedings related to the claim of genocide might continue for many years, and in the end, I believe Israel will succeed in showing that legal truth aligns with factual truth. However, soon a decision will be reached regarding the provisional measures sought by South Africa. Even if these measures are not fully accepted, and Israel is not required to cease the fighting, the mere issuance of the measures will brand Israel with a mark of concern for the existence of genocide. Such a mark may have significant political, diplomatic, economic, and societal ramifications in the short and long term.
Another aspect where there is factual truth is the humanitarian disaster unfolding in Gaza. Tens of thousands of casualties, mostly women and children, along with hundreds of thousands lacking access to food, water, medicine, and electricity. Recently, Human Rights Watch published a report stating that Israel is starving civilians as a means of warfare. The report draws a direct connection between Israel’s military actions and the war crime of population starvation. Factually, Israel is imposing a blockade against Hamas, and the IDF’s activities are not directed at the civilian population. The famine imposed on the civilian population in Gaza is not the goal but an incidental harm, collateral damage, exacerbated by Hamas diverting humanitarian aid primarily to its fighters, hindering direct assistance to those in need.
To address legal truth, Israel needs to demonstrate that it allows the entry of humanitarian aid, including food, water, and medicine, into Gaza, as required by the principles of international humanitarian law governing the conflict. One aspect that did not favor Israel in the legal and public relations battle was the decision to prevent the entry of trucks carrying humanitarian aid through the Kerem Shalom crossing, designed for such cargo, and to limit aid to Rafah crossing only. Another detrimental aspect was, again, the irresponsible statements of politicians and public figures advocating for blocking humanitarian aid or, alternatively, linking its entry to the release of captives.
Unfortunately, the likelihood that the chip will drop, and we will notice a significant decrease in such statements and their impact is small due to the same internal political and fringe considerations that led to them in the first place. This does not mean that Israel will be found guilty of genocide at the ICJ, or that Israel is committing the war crime of starving the civilian population. These are windmills that the Israeli legal system now needs to battle with one hand, while the other hand is turned inward in an attempt to prevent further damaging statements.