Dr Binoy also makes his debut in the Top 5, and well-deserved too, with this article from January.
Israel’s relationship with the United Nations, international institutions and international law has at times bristled with suspicion and blatant hostility. In a famous cabinet meeting in 1955, Prime Minister David Ben-Gurion famously knocked back the suggestion that the United Nations 1947 plan for partitioning Palestine had been instrumental in creating the State of Israel. “No, no, no!” he roared in demur. “Only the daring of the Jews created the state, and not any oom-shmoom resolution.”
In the shadow of the Holocaust, justifications for violence against foes mushroom multiply. Given that international law, notably in war, entails restraint and limits on the use of force, doctrines have been selectively pruned and shaped, landscaped to suit the needs of the Jewish state. When the stricture of convention have been ignored, the reasoning is clipped for consistency: defenders of international law and its institutions have been either missing in the discussion or subservient to Israel’s enemies. They were nowhere to be seen, for instance, when Egypt’s Gamal Abdel Nasser was preparing for war in the spring of 1967. Israel’s tenaciously talented statesman, Abba Eban, reflected in his autobiography about the weakness of the UN in withdrawing troops from the Sinai when pressured by Nasser to do so. It “destroyed the most central hopes and expectations on which we had relied on withdrawing from Sinai.”
These steely attitudes have seen international convention and practice, in the Israeli context, treated less as Dickensian ass as protean instruments, useful to deploy when convenient, best modified or ignored when nationally inconvenient. This is most evident regarding the Israel-Hamas war, which is now into its third month. Here, Israeli authorities are resolute in their calls that Islamic terrorism is the enemy, that its destruction is fundamental for civilisation, and that crushing measures are entirely proportionate. Palestinian civilian deaths might be regrettable but all routes of blame lead to Hamas and its resort to human shields.
These arguments have failed to convince a growing number of countries. One of them is South Africa. On December 29, the Republic filed an application in the International Court of Justice alleging “violations by Israel regarding the Convention on the Prevention and Punishment of the Crime of Genocide […] in relation to Palestinians in the Gaza Strip.” Various “acts and omissions” by the Israeli government were alleged to be “genocidal in character, as they are committed with the requisite specific intent … to destroy the Palestinians in Gaza as part of the broader Palestinian national, racial and ethnical group.” What Pretoria is seeking is both a review of the merits of the case and the imposition of provisional measures that would essentially modify, if not halt, Israel’s Gaza operation.
Prior to its arguments made before the 15-judge panel on January 12, Israel rejected “with contempt the blood libel by South Africa in its application to the International Court of Justice (ICJ).” The Israeli Foreign Ministry went so far as to suggest that the court was being exploited, while South Africa was, in essence, “collaborating with a terror group that calls for the destruction of Israel.”
Prime Minister Benjamin Netanyahu, with demagogic rage, claimed that his country had witnessed “an upside-down world. Israel is accused of genocide while it is fighting against genocide.” The country was battling “murderous terrorists who carried out crimes against humanity.” Government spokesman Eylon Levy tried to make it all a matter of Hamas, nothing more, nothing less. “We have been clear in word and in deed that we are targeting the October 7th monsters and are innovating ways to uphold international law.”
In that innovation lies the problem. Whatever is meant by such statements as those of Israel Defence Forces spokesman, Rear Adm. Daniel Hagari, that “Our war is against Hamas, not against the people of Gaza”, the catastrophic civilian death toll, destruction, displacement and starvation would suggest the contrary. Innovation in war often entails carefree slaughter with a clear conscience.
On another level, the Israeli argument is more nuanced, going to the difficulties of proving genocidal intent. Amichai Cohen of Israel’s Ono Academic College and senior fellow at the Israel Democracy Institute admits that comments from right-wing Israeli ministers calling for the “emigration” of Palestinians from Gaza were not helpful. (They were certainly helpful to Pretoria’s case.) But he insists that the South African argument is based on “classic cherry-picking.” Cohen should know better than resort to the damnably obvious: all legal cases are, by definition, exercises of picking the finest cherries in the orchard.
The Israeli defence team’s oral submissions to the ICJ maintained a distinct air of unreality. Tal Becker, as legal advisor to the Israeli Foreign Ministry, tried to move judicial opinion in his address by drawing upon the man who minted genocide as a term of international law, Raphael Lemkin. Invariably, it was Becker’s purpose to again return to the Holocaust as “unspeakable” and uniquely linked to the fate of the Jews, implying that Jews would surely be incapable of committing those same acts. But here was South Africa, raining on the sacred flame, invoking “this term in the context of Israel’s conduct in a war it did not start and did not want. A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations whose brutality knows no bounds.” Israel, pure; Israel vulnerable; Israel under attack.
In yet another jurisprudential innovation, Becker insisted that the Genocide Convention was not connected in any way to “address the brutal impact of intensive hostilities on the civilian population, even when the use of force raises ‘very serious issues of international law’ and involves ‘enormous suffering’ and ‘continuing loss of life’.” The Convention, rather, was meant “to address a malevolent crime of the most exceptional severity.”
The view is reiterated by another lawyer representing Israel. “The inevitable fatalities and human suffering of any conflict,” submitted Christopher Staker, “is not of itself a pattern of conduct that plausibly shows genocidal intent.” Butcheries on a massive scale would not, in of themselves, suggest such the requisite mental state to exterminate a race, ethnic or religious group.
As for South Africa’s insistence that provisional measures be granted, Staker was unwavering in repeating the familiar talking points. They “would stop Israel defending its citizens, more citizens could be attacked, raped and tortured [by Hamas], and provisional measures would prevent Israel doing anything.”
Legal tricks and casuistry were something of a blooming phenomenon in Israel’s submissions. South Africa had, according to Becker, submitted “a profoundly distorted factual and legal picture. The entirety of its case hinges on deliberately curated, decontextualised, and manipulative description of the reality of current hostilities.” Happy to also do a little bit of decontextualising, curating and manipulating himself, Becker trotted out the idea that, in accusing Israeli’s war methods as being genocidal, Pretoria was “delegitimizing Israel’s 75-year existence in its opening presentation.” It entailed erasing Jewish history and excising “any Palestinian agency or responsibility.” Such a ploy has been Israel’s rhetorical weapon for decades: all those who dare judge the state’s actions in a bad light also judge the legitimacy of the Jewish state to exist.
Malcom Shaw, a figure known for his expertise in the thorny realm of territorial disputes, did his little bit of legal curation. He took particular issue with South Africa’s use of history in suggesting that Israel had engaged in a prolonged dispossession and oppression of the Palestinians, effectively a remorseless, relentless Nakba lasting 75 years. The submission was curious for lacking any mooring in history, a fatal error to make when considering the Israel-Palestinian issue. It’s also palpably inaccurate, given the dozens of statements made by Israeli politicians over the decades acknowledging the brutal, ruthless and dispossessing tendencies of their own country. But legal practitioners love confines and walled off applications. The only thing that mattered here, argued Shaw, was the attack of October 7 by Hamas, a sole act of barbarity that could be read in terrifying isolation. That, he claimed was “the real genocide in this situation.”
Having tossed around his own idea about the real genocidaires (never Israel, remember?), Shaw then appealed to the sanctity of the term genocide, one so singular it would be inapplicable in most instances. Conflicts could still be brutal, and not be genocidal. “If claims of genocide were to become the common currency of our conflict … the essence of this crime would be diluted and lost.” Woe to the diluters.
Gilad Noam, in closing Israel’s defence, rejected the characterisation of Israel by South Africa as a lawless entity that regarded “itself as beyond and above the law”, whose population had become infatuated “with destroying an entire population.” In a sense, Noam makes a revealing point. What makes Israel’s conduct remarkable is that its government claims to operate within a world of laws, a form of hyper-legalisation just as horrible as a world without laws.
Ironically enough, the Lemkin Institute for Genocide Prevention has been furiously pressing the International Criminal Court to indict Israeli Prime Minister Benjamin Netanyahu for the crime of genocide, the siege and bombardment of Gaza “and the many expressions of genocidal intent, especially in his deleted tweet from 10/17/2023.” The tweet (or post) in question crudely and murderously declared that, “This is a struggle between the children of light and the children of darkness, between humanity and the law of the jungle.” If that does not reveal intent, little else will.
See also: Number 1 for 2024: New Zealand is under siege by the Atlas Network
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Congratulations Binoy, and also on your mighty body of work.
Sometimes we have trouble seeing the wood for the trees and Israeli information sources distribute red herrings with abandon to ensure that, with the forced exclusion of Western media, nothing is reported objectively.
In the last forty-eight hours the IDF stormed and burned the Kamal Adwan Hospital in Northern Gaza, the last operating hospital in that region. Staff and patients were forcibly removed and medical personnel and nurses were forced to remove their uniforms : the hospital director was also removed for interrogation. The Israeli military said the hospital was being used by Hamas fighters as a base, although, as is usually the case, it did not provide evidence.
Gaza’s Health Ministry said Israeli troops set fires in several parts of the hospital, including the laboratories and operating theatres. Backup power generators, the only remaining source of electricity, were destroyed and gas (oxygen) cylinders were corrupted. The facility can no longer be used as a hospital to care for the substantial numbers of sick and injured.
These actions are war crimes yet western news services are so scared of being called antisemitic that they allow their reporting to conform to Israeli government strictures and conditioning. They will always identify Houthis (Yemen) Hezbollah (Lebanon) and Hamas (Palestine) as terrorists and never will they suggest that these groups have a right to self defence in the face of an aggressive attack by a neighbouring belligerent, but curiously, when referring to the Netanyahu regime they fail to mention that the leader has an outstanding warrant for his arrest issued by the International Criminal Court charging the Israeli prime minister and his cronies with crimes against humanity.
And yet they argue that Israel is incapable of committing genocide – they might add ‘not until after the event’.
Thank you for the education, Binoy. I hope 2025 is a good one for you.
Sadly,the events of the past 15 months have shown that Israel is capable of and is in fact committing genocide.
But, as rightly pointed out, this is the culmination of the pushing aside of Palestinians since the Nakbah of 1948, the destruction of Palestinian villages so that the newly formed state of Israel could almost be considered as taking an unoccupied land, Terra Nullius, Does that sound at all familiar?
As with the Israelis claiming they are incapable of genocide, the new goverenment in Queensland want to continue the myth that the settlement of Queensland was a peaceful hand over of land from the indigenous people to the white settlers, stopping the truth telling.
Man’s inhumanity to man is deeply embedded in history, but like in the song, where have all the flowers gone, the closing line is ‘When will we ever learn’
Wise words, Bert !
The League of Nations then the UN established the groundwork with the usual ‘west’ agenda of gatecrashing the through the middle east as a beachhead to the regions both north and south, arranged and standing by, in came the new Israel ready and willing to establish a junta state which it has maintained ever since with the aid of the ‘west’. Boldly by the USA, and duplicitously and cringingly by the old western imperia.
With the UN’s arrest warrants – Netanyahu etc, and 156 countries backing South Africa’s Resolution, and 193 countries backing the ‘Pact for the Future’, things are closing in on the Israeli junta state. But with the obdurate exceptionalist and corrupt USA continuing to supply arms and funds to Israel, it seems the plight of those of Gaza and the West Bank is obliteration, as the USA’s commercial and strategic march on Islam, particularly Shia appears endless.
Trump will stop thIDF .and Russia
Clakka, the US has veto power in the security council, will veto anything against Israel.
wam, I think a more realistic scenario will be that Trump will pull all stops out to allow Israel and Russia to have their way. Look at the brown nosing of Vlad, look at who has been nominated for ambassador to Israel. Trump will go with the
strong men’, Bibi and Vlad
I met up with a fellow ukulele player for coffee this morning. He is Polish, born 1953 but told of his father’s story of the war with Germany. He was too young for the army but was sent as a slave to work in Germany. He told also of his grand parents having protected Jews. The penalty if found was that the entire family would be killed.
He cannot believe what Israel is doing to the Palestinians. And yes, he calls it a holocaust, a genocide.
It seems the only ones denying that are Israel and the US.
This is a useless comment, for it is gaseous, nebulous, irrelevant, blackhole bound, lost already; and that is because the most noxious, poisonous, evil, murderous, larcenous, twisted, deluded, concentrated superstition is floating free of any restraints in morals, ethics, decencies, LAW itself. Of course, LAW is a farce as a concept, created of human frailty and wicked wilfulness, The five powers in the UNO Security Council have veto rights, being victors in W W 2. All are “illegal” descendent government usurping gangs from murder, revolt, terrorism, uprising, assertion, humiliation and righteous self fixated acqusition of power. They should not exist, yet commonly overthrow weak efforts in the coloured cringey non western world to replicate that, gone forever like Lumumba or Biafra, or Allende, so many.
In 1948 there was a legal entity called Palestine, but treachery and criminality saw that ended, in disaster and betrayal by the scheming Trumanites and the hopelessly imperialisitc evil weak British. Humans, like us, like everyone else everywhere, were condemned to savagery by the “chosen”, the formerly illtreated and wronged Zionist Jewish in a savagery not noticed by nations who were glad to see their backs after centuries of violence and dispute. Diplomacy, which has never achieved much satisfacory or permanent results, remains our hopeless hope, a nightmare. Peace, please. Those barging bashing huns in USA political life could, just could, make a difference. Are they mere abbatoir mentality posers or honest and talented?? Donald?
This is a useless comment, for it is gaseous, nebulous, irrelevant, blackhole bound, lost already; and that is because the most noxious, poisonous, evil, murderous, larcenous, twisted, deluded, concentrated superstition is floating free of any restraints in morals, ethics, decencies, LAW itself. Of course, LAW is a farce as a concept, created of human frailty and wicked wilfulness, The five powers in the UNO Security Council have veto rights, being victors in W W 2. All are “illegal” descendent government usurping gangs from murder, revolt, terrorism, uprising, assertion, humiliation and righteous self fixated acqusition of power. They should not exist, yet commonly overthrow weak efforts in the coloured cringey non western world to replicate that, gone forever like Lumumba or Biafra, or Allende, so many.
In 1948 there was a legal entity called Palestine, but treachery and criminality saw that ended, in disaster and betrayal by the scheming Trumanites and the hopelessly imperialisitc evil weak British. Hu
All well and good if you ignore the whiffy allies or frenemies shared between both corrupt authoritarian Netanyahu and Hamas regimes, towards which many in the region have held strong antipathy towards (while looking to the secular west to avoid religion, corruption and autocracy).
This is including Erdogan and Putin, along with Saudi’s MBS (see ‘Moscow’ Mike Flynn, Kushner, Abraham Accords etc.) and others of Trump’s crew on tbe sidelines?
Netanyahu vs Hamas has been manna from heaven for Putin, Trump, Netanyahu and white Christian nationalists, while all focus in Israel and claims of anti-semitism from the left inc Dems, fraying the latter’s vote, for Trump to prevail.
Too easy in the glib far away Anglosphere that avoids much regional or geopolitical expertise in favour of generic history lessons…. often defers back to or benefits the right and power… eventually….
The ICC’s decision is not an attack on Israel or the Jewish people and it is certainly nothing to do with antisemitism. The Court indictment states that “there are reasonable grounds to believe that both individuals [Netanyahu and Gallant] intentionally and knowingly deprived the civilian population in Gaza of needs indispensable to their survival, including food, water, and medicine and medical supplies, as well as fuel and electricity.”
That’s the job of the ICC, to bring these people to account.
Bert,
I’m well aware the US (like other members) have the power of veto in the UN Security Council. And they use it in this matter blatantly …. one of the obvious roots of my comment.