We are certainly happy that Israel was able to avoid the biased negative global fallout that would have surely been unleashed by a legal finding by the UN’s International Court of Justice in the Hague that Israel’s defensive war against Hamas somehow included an element of genocide. But at the same time, we have had just about enough of the sighs of relief suggesting that the august jurists had employed some sophisticated legal analysis which ineluctably led to their failure, at least provisionally, to find that Israel had committed genocide. In fact, in terms of legal analysis of evidence, it was an easy call.
As we have noted here before, there was no evidence presented that Israel’s actions even came close to meeting the definition of “genocide.” In bringing the case against Israel, the government of South Africa, a longtime supporter of the Palestinians, accused Israel of actions in Gaza that were “genocidal in character.” It said Israel had killed Palestinian civilians, inflicted serious bodily and mental harm, thereby creating for the residents of Gaza “conditions of life calculated to bring about their physical destruction.”
But they presented no acts that bespoke an intent to bring about the destruction of non-combatants. To be sure, they alluded to the deaths of Palestinians as the result of Israeli force of arms, but only that which was directed at combatants or which was facially incidental to fire directed at combatants. There was no acknowledgment of Hamas’ notorious practice of using human shields.
Yes, they did offer in evidence some unhelpful statements by high Israeli officials: “Those who celebrate, those who support, and those who hand out candy – they’re all terrorists, and they should be destroyed”; Israel was “fighting human animals” and must “act accordingly”; and comparisons of Palestinians to “Amalakites.” And as the Times of Israel noted these statements were not tied to any specific acts.
It has long seemed to us that the ICJ, like most agencies of the UN, view Israel with a jaundiced eye, perceiving it as a product of detested Western colonialism. But notwithstanding that bias, the obvious lack of evidence was apparently too much to overcome. After all, there has to be some demonstrable evidentiary basis for judicial decision-making.
Of course, by all rights, the case against Israel, owing to the abject lack of evidence, should have been dismissed promptly upon being brought. But it seems more than likely that the operative principle was “let’s throw it up against the wall and see what sticks.” Indeed, instead, the court decided that Israel must report back with evidence that it had not been genocidal. Given the many thousands of actions taken since, this is a curious admonition.
Also, it’s one heck of a way to run an international court of justice.
