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The Inroads listserv began in 1997 as a means to link Inroads readers and others interested in policy discussion. With more than 100 subscribers, it offers one of the few chances for people of diverse views to grapple with social and political issues in depth. To subscribe, write to Inroads at inroadsjournal@gmail.com and we will add your name to the list.

 The war between Israel and Hamas has been a frequent topic of discussion on the Inroads listserv. The most recent issue of Inroads (Winter/Spring 2024) carried highlights of an exchange on Israel’s right of self-defence and the meaning of proportionality in war. Another intense discussion followed the International Court of Justice’s January 26 interim ruling in South Africa’s proceedings against Israel alleging violations of the Genocide Convention. An edited version of this discussion is presented in this special.

January 27
JOHN RICHARDS

I have not read ICJ decisions other than the recent provisional decision on South Africa’s prosecution of Israel. I invite those among us with more legal knowledge than I to discuss.

The provisional decision is lengthy. It contains 86 carefully drafted sections. To give a feel for the qualified prose, I quote section 54, which refers to “plausible” claims by South Africa, and section 64, in which the court refers to the Israeli denial of an “imminent risk of irreparable prejudice.”

Section 54:

In the Court’s view, the facts and circumstances … claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.

Section 64:

Israel denies that there exists a real and imminent risk of irreparable prejudice in the present case. It contends that it has taken – and continues to take – concrete measures aimed specifically at recognizing and ensuring the right of the Palestinian civilians in Gaza to exist and has facilitated th provision of humanitarian assistance throughout the Gaza Strip. In this regard, the Respondent observes that, with the assistance of the World Food Programme, a dozen bakeries have recently reopened with the capacity to produce more than 2 million breads a day …

BOB CHODOS

I can’t claim more legal knowledge than John has. Nevertheless, I would like to comment briefly.

To me the big question was whether the Court would call for an immediate ceasefire. It didn’t. In other words, it indicated implicitly that Israel’s military action could continue.

Of the six “provisional measures” indicated by the court, two (preventing public incitement to genocide and enabling the provision of humanitarian aid) passed by a vote of 16-1 and the other four passed by a vote of 15-2. One maverick judge, Julia Sebutinde of Uganda, voted against all six, while the Israeli ad hoc judge, Aharon Barak, voted against four. The other 15 judges – from the United States, Germany, Russia, China, Somalia, Lebanon and other countries – agreed on all six measures – as well as on a decision that did not include a call for a ceasefire. Achieving such a consensus would have necessitated the highly nuanced and balanced language exemplified by the sections John quotes.

ANDRÉ BINETTE

I cannot claim to be an expert in international law but I have some passing knowledge of the jurisprudence of the ICJ, enough to make a few observations.

The ICJ was created under the League of Nations after World War I. It is older than the United Nations but became part of its institutional system in 1945. It can only judge states for violations of international law. It cannot judge Hamas or Palestine since they are not states.

The international crime of genocide was created after the Holocaust and World War II.

More recently, in 2002, the International Criminal Court (ICC) was created. The ICC is a permanent tribunal for the prosecution of individuals for war crimes and genocide. Before that, there were only ad hoc tribunals for the prosecution of individuals under international criminal law, the first being the Nuremberg and Tokyo tribunals after World War II. There were also ad hoc tribunals for Rwanda and Yugoslavia created in the 1990s where the issue of genocide could be raised.

The ICC has been somewhat effective in condemning former African dictators, but has also been criticized. Mexico and Chile have taken Israel to the ICC for war crimes in Gaza. This may in the long run prove more effective than the South African case before the ICJ.

There are normally 15 judges at the ICJ, elected by the General Assembly of the UN for renewable terms. There is one judge per country and there must be equitable geographic distribution. Ad hoc judges can be added when a state involved in a case is not already represented on the court. The Israeli dissenting judge is an ad hoc judge only for this case.

The current president of the Court is an American female jurist; a Russian judge is vice-president. The Russian and Chinese judges both supported the majority position. The Chinese judge, also female, explained her position separately.

As William Schabas and other experts have stated, the law of genocide is uncertain. Proof of state intent is usually difficult. State intent, where it exists, would normally not be public. The Holocaust was a secret official policy of Nazi Germany that could be proven from written records recovered after World War II. In this case, there exist public statements by Israeli government officials, including the President of Israel, which have been quoted by the Court to support its preliminary finding that the issue of genocide is plausible and can be rationally argued.

This preliminary finding is significant and a little surprising. A more conservative view of the law of genocide could have dismissed the case outright. This preliminary opinion may announce a strengthening of the interpretation of genocide or the ICJ may back off from a definitive finding of genocide one or two years down the road. My view is that such a retreat remains more likely, and that this provisional decision, which is balanced and satisfactory from a legal standpoint, is as far as the ICJ will go.

On the matter of a ceasefire, I am not aware of any ceasefire ever being ordered by the ICJ. Even though it probably has the power to do so, the Court would be acutely aware of the limits of respect for its decisions. States sometimes ignore the ICJ when it suits their interests, a recent example being China’s refusal to accept a ruling on maritime borders in the South China Sea. Also, the implicit judicial policy of the ICJ may be to defer political or military matters such as ceasefires to the UN Security Council.

It is an important civilizational achievement for the world in its present state to even have the ICJ and the ICC; it will take decades for them to be more effective. Those who regret that the ICJ will not have an impact on the ground in Gaza should remember that the pace of international law has been glacial in history, although it accelerated considerably in the 20th century in response to unprecedented human suffering.

MARK CRAWFORD

I agree with André – it is perhaps significant that, with the Court’s recognition of the “plausibility” of the allegation, a step has been taken away from the narrow definition of genocide and exacting standard of proof we saw in its earlier decisions. I wonder if there are lesser included offences, for surely Israel is guilty of some sort of war crime.

ANDRÉ BINETTE

I believe there are allegations by South Africa of lesser offences of war crimes. The ICJ may go in that direction but detailed investigation and proof are required, which may be suppressed or nonexistent.

January 28

BILL SCHABAS

The International Court’s order delivered on Friday provides confirmation that the South African application based upon a claim that Israel has violated the Genocide Convention is “plausible.” Several Western governments, including Canada’s, had been dismissive of the South African application, suggesting it was frivolous. Israeli politicians even called it a “blood libel” and claimed it was driven by antisemitism. On Friday morning, just before the Court delivered its order, an Israeli government spokesman said they expected the case to be thrown out.

Now, 15 of the world’s greatest international legal experts, judges of its highest court who are elected by both the Security Council and the General Assembly, have confirmed that South Africa has a serious case.

Israel has often rejected criticism at the international level claiming that it is directed from organs that are biased against it, like the Human Rights Council and the General Assembly. On the other hand, critics of Israel point out that if Israel gets a rough ride in those bodies, it gets a soft one in the Security Council, where it is protected by powerful allies. But it is harder to reject the International Court of Justice, which is broadly representative and has judges from all parts of the world, several of them nationals of states that are very friendly to Israel.

The merits of the charge are to be determined much later, perhaps in three or four years. But what government in the world would want to live with the stigma that there is a plausible case for its having committed genocide? In a podcast on Friday, Jeffrey Sachs described the order as “devastating” for Israel and I agree with him.

The order has some real teeth, including the demand that Israel “shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.” The words immediate and effective underscore the importance of concrete steps to address what the Court called a “catastrophic humanitarian situation” that is “at serious risk of deteriorating further.”

Usually, a provisional measures order is negative in focus, aimed at halting or preventing certain acts. This one stands out in imposing a positive duty. Israel must report on what it has done to comply with this order in one month.

It is unfortunate that the Court did not explain why it declined to order a halt to Israel’s military activity in the Gaza Strip. Some supporters of Israel have pointed to this to put a brave face on what was a stinging rebuke.

The rationale for the failure to order a ceasefire may be that only one of the parties to the armed conflict was before the Court. Getting to a near-unanimous decision no doubt required some compromise. Maybe the ceasefire order was the deal-breaker. Imagine getting 15 of your friends, colleagues and acquaintances in one room and trying to agree on anything to do with the Middle East.

In the end, the Court’s order stays clearly within the frame of the Genocide Convention. Should Israel implement the order in good faith, dramatic changes to its military activity will be necessary. It has become increasingly clear that Israel’s attacks are not actually directed at either destroying Hamas or freeing the hostages, the two proclaimed objectives. At both, they have evidently failed. Rather, its weapons are aimed at the Palestinian people who, once again, find themselves displaced, their homes and livelihoods destroyed.

Do you remember Prime Minister Trudeau saying it was “absolutely right” to use the term genocide to describe Russian conduct in Ukraine? At the time, in early April 2002, there had been perhaps 2,000 to 3,000 civilian deaths in a country with a population that is 20 times that of Gaza. Of course, we expect double standards in the political realm. Sometimes, though, they succumb to legal principles.

In November 2023, Canada and several western European states, all of them great friends of Israel, intervened in the Gambia v. Myanmar case which is also before the International Court of Justice. They urged the Court to adopt a more liberal and broad approach to the definition of genocide than it has done in the past. With an eye to the atrocities directed at the Rohingya, they specifically urged the Court to consider “forced displacement” in assessing genocidal conduct. No doubt some of the clever government lawyers who drafted the intervention now regret their words. Should the Court follow the approach to genocide that Canada et al. now advocate, it will not go well for either Myanmar or Israel.

HENRY MILNER

Dear Bill,

As always, I appreciate your insightful analysis. I wonder, however, if you are being atypically vague in this statement: “Israeli attacks are not actually directed at either destroying Hamas or freeing the hostages, the two proclaimed objectives. At both, they have failed evidently. Rather, its weapons are aimed at the Palestinian people.”

Perhaps you could elaborate on this either/or.

BILL SCHABAS

Dear Henry,

On January 1, 2024, the Times of Israel reported that 170 IDF soldiers had been killed since the ground campaign began in October. That’s fewer than the average of Palestinian deaths on every single day of the conflict. There are other estimates of IDF deaths but they seem to be in the low hundreds.

I believe this shows that the IDF soldiers remain inside their tanks and armored vehicles, protected by armor while they unleash hellfire on easy targets like homes, hospitals and other buildings in the Gaza Strip. If they were seriously engaging with Hamas fighters, there would be much higher casualties. They would have to go down into the tunnels, where the battles would be more symmetrical, and fight one on one. As for the hostages, I think the IDF have rescued one person so far. Notoriously, three other hostages were murdered because the soldiers thought they were Palestinians trying to surrender. The rest of the hostages who have been freed were the subject of negotiations and exchanges.

It recalls the logic of the Americans in August 1945. They explained the use of the atomic bomb as a measure to shorten the war and avoid the inevitable military casualties that would result from a land invasion. A poor justification. Under international humanitarian law, you cannot kill civilians to save lives of your soldiers.

But it is different here. In 1945, the Americans were not trying to drive the Japanese from their islands – merely to provoke their hasty surrender.

In Gaza, if they are not making any progress in actually finding and liberating hostages, and if they are failing to engage in the sort of hand-to-hand combat that is necessary to take on an irregular force like Hamas, then what is their real purpose?

This morning I heard a relative of one of the hostages being interviewed on the BBC. She insisted that because the IDF were not able to free hostages or defeat Hamas they should stop the war and try something else. I suspect a lot of Israelis feel the same way.

But the longer those who are currently running things in Israel persist in this hugely destructive lethal activity that is neither freeing hostages nor defeating Hamas, the more plausible becomes the hypothesis that they can only have another purpose.

HENRY MILNER

Dear Bill,

I think you are expecting of the IDF what no army would ever expect its soldiers to do (short of Japanese kamikaze). Hamas fighters are waiting, highly armed, hidden in tunnels that are booby trapped with explosives and the entrances to which are concealed under highly populated encampments, hospitals and other civilian structures.

BILL SCHABAS

Dear Henry,

It seems then that we agree. They are not really fighting Hamas. On the pretext of fighting Hamas, they are attacking the civilian population. That’s my point.

ARTHUR MILNER

Bill doesn’t need my help, but …

It’s not about expectations of the IDF. It’s that “if they are not making any progress in actually finding and liberating hostages, and if they are failing to engage in the sort of hand-to-hand combat that is necessary to take on an irregular force like Hamas … should stop the war and try something else.”

Killing civilians and destroying civilian infrastructure is not a legal alternative.

HENRY MILNER

They have been gathering information on the basis of which they are assessing how long it will take them to slowly and painstakingly do the job. We are in no position to second-guess them.

BOB CHODOS

There are several other plausible explanations for the failure of the IDF’s offensive to attain its stated goals. Here are two: (1) There is the old journalistic adage “Never ascribe to conspiracy what can reasonably be explained by incompetence.” (2) Netanyahu’s main goal is to prolong the war so that he can stay in office and avoid getting sent to jail on corruption charges. A drawn-out, inconclusive campaign suits his purpose perfectly.

January 29

LANA BATEMAN

With regard to the ICJ not directly calling for a ceasefire, I’d like to share the following tweet from Abdallah Fayyad: “Yes, the court did not demand a ceasefire, but there is no way Israel can guarantee that it meets these obligations without one. Any act taken by other nations that enables Israel to continue killing civilians will be aiding a potential genocide. International pressure will grow.”

The obligations the Court imposes on Israel include taking “all measures within its power to prevent the commission” of such acts as “(a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group.” In addition, the Court notes, “Israel must ensure with immediate effect that its military forces do not commit any of the above described acts.”

ANDRÉ BINETTE

Israel has undoubtedly committed war crimes in Gaza in my view, as has Russia in Ukraine. The problem is that war crimes are rarely prosecuted and difficult to prove. After World War II, there were serious allegations of war crimes on both sides, including the execution of prisoners, the firebombing of major cities and the dropping of atomic bombs.

An interesting and little-known current process is the prosecution of war crimes committed by Kosovo. This is done by an international court under the odd name of Kosovo specialist chambers. According to Wikipedia,

The court is currently set up for (conducting) the trials of the crimes committed by members of the Kosovo Liberation Army (KLA), an ethnic-Albanian paramilitary organisation which sought the separation of Kosovo from Yugoslavia during the 1990s and the eventual creation of a Greater Albania. The alleged crimes concern the period 1998–2000, during and at the end of the Kosovo war and directed afterwards against “ethnic minorities and political opponents”. The court was formally established in 2016.

Among the people charged with war crimes and crimes against humanity are Kosovo former president Hashim Thaçi and senior Kosovar politician Kadri Veseli. On 15 September 2021 the court’s first trial opened, the case against Salih Mustafa.

Kosovo has cooperated in this process. Wikipedia adds,

Unlike many other non-Dutch judicial institutions in The Hague, the Kosovo Relocated Specialist Judicial Institution isn’t an international court, but a court constituted through Kosovan legislation. To provide a proper legal basis for the court, Kosovo’s constitution was amended (amendment 24) and Law No.05/L-053 on specialist chambers and specialist prosecutor’s office was approved.

The court will be staffed by EU personnel and will have international judges only. The costs of the court will be borne by the EU as part of its Common Foreign and Security Policy. 

All three specialist prosecutors have been American, notably Jack Smith, who was there from 2018 to November 2022, when he was appointed by President Biden to serve as special prosecutor against Donald Trump.

It would be good to see Israel cooperate in a similar process. I won’t bet on it.

Still, this Kosovo court is part of a new and encouraging trend in international criminal law. The United States has an ambiguous position. On the one hand, it cooperates with such judicial institutions. On the other, it refuses to subject its own armed forces to the jurisdiction of the International Criminal Court.

Whether war crimes against Israel are prosecuted or not, what is at stake here is its moral authority derived from the Holocaust, Western guilt, the major contribution of Judaism to Western civilization and the fact that it is the only democracy in the Middle East. Without this moral authority, which has been undermined by decades of oppression of the Palestinian people, Israel’s right to exist is the same as, and no more than, Russia’s, Syria’s or Iran’s.

Israel’s forfeit of the moral and spiritual dimension of its right to exist is a major tragedy for the world. To this non-Jewish observer, this is not “tikkun olam” intended to repair the world. Once a beacon of hope for many, Israel has become a major problem for humanity and has sunk to a moral low point reminiscent of dark episodes of the Bible.

I have just read Chaim Potok’s The Chosen. I was fascinated to find in it at this time a prediction by the character of a Hasidic Tzaddik that disaster would come from a state founded by Jewish nonbelievers. Potok, who died in 2002, did not live to see the lethal combination of Jewish messianism and Israeli nationalism. I wonder what he would have made of it. In my humble view, it is highly pathological.

CRAIG JONES

Tell us more about “Jewish messianism.” I’m of the view that both sides are enacting a script from prehistory. The upshot is that there is no resolution in “this world” because both sides are playing for eternity.

ANDRÉ BINETTE

Jewish messianism seems to me to be the mirror image of both Islamic fanaticism and extreme Christian eschatology that informs evangelical support for Trump. They are three-pronged manifestations of collective psychosis that threaten the stability of the world. Narendra Modi’s gigantic new temple in India built on the ruins of a mosque is another form of disastrous religious nationalism.

ARTHUR MILNER

It’s too easy to say “both sides are enacting a script from prehistory,” and therefore “there is no resolution in ‘this world’ because both sides are playing for eternity.” The question is, what part of the population are religious fanatics and what influence do they have?

My conclusion is (and has been since 2004) that the fanatics on both sides are such that the parties can never negotiate a viable agreement. Minorities can prevent or wreck an agreement by, for example, executing a prime minister. But that doesn’t mean a viable agreement cannot be imposed on the parties. There can be a resolution in “this world.”

ANDRÉ BINETTE

We live in a time where religious fanatics have outsize influence. It happens periodically when humanity gets a fever as the history of Jewish persecution in Europe will attest. The execution of an Israeli prime minister by a Jewish extremist parallels the assassination of Gandhi by a nationalist Hindu or the assassination of Martin Luther King.

I do believe in a solution in this world but it is many years away.

PHILIP RESNICK

A Beacon unto the Nations
(for André Binette)

In the electronic salon
which Inroads at its better moments
aspires to become
le thème du jour for months
has become the confrontation
between Israel and Hamas. 

The ICJ judgment,
in Solomonic fashion,
gave comfort to each side,
though saddling Israel with the obligation
to not take out on Palestinian civilians
retribution for what Hamas had inflicted. 

In the court of world opinion,
Israel, once seen as a beacon unto the nations,
now stands in judgment,
and even diasporic Judaism
finds itself generationally shattered
when it comes to perceptions of the Jewish state. 

Israel, through the irony of history,
has become what some had wished
and others dreaded,
a normal state,
no different from the others,
able to hold its own
when it comes to self-defence
and to inflict untold hardship on its opponents. 

Welcome to the club,
some would boast,
where national interest rules the day
and religion serves as a handmaiden
to secular power. 

The prophets had their say millennia ago,
they would add,
and as for the messianic promise
it can await a future age,
perhaps before the climate
finally does our species in.

For the moment,
they would conclude,
the race remains to the swift and bold,
where realpolitik continues to impose
an imprint that has stood the test of time
on an imperfect world.