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The Hague Can’t Deliver Justice

The Hague Can’t Deliver Justice
The Hague Can’t Deliver Justice


Waiting to obtain justice from an international tribunal is a bit like waiting for the messiah: You are not likely to find what you’re looking for anytime soon, but the pastime remains popular. Today the International Court of Justice announced its first ruling in a case brought by South Africa against Israel, alleging genocide in Gaza. South Africa had sought a preliminary ruling that would force Israel to stop fighting while a full case could be heard. The ICJ agreed, in effect, that Israel’s war in Gaza looks like genocide, if one squints and cocks one’s head. The ICJ declined to order a cease-fire, but it did order Israel to refrain from genocidal acts and to document what it has done. It further demanded more humanitarian aid for Gaza, and an end to the genocidal incitement of the sort South Africa alleged, somewhat dishonestly, in its complaint.

Critics of Israel’s war effort were hoping for much more. But those who wanted a cease-fire order can take comfort in the ICJ’s siding against Israel on most points, and furthering the impression that the Jewish state is uniquely vile among nations. (Many people think this anyway, judging by their lack of interest in bringing any other countries before the court.) They may also enjoy placing Israel in a tough spot, where it must either admit its evil or renounce the Genocide Convention. Israel signed the convention in 1949, when the idea of Jews committing genocide seemed about as remote to most people as Jamaican bobsled teams and celebrity chefs from England. By signing the convention, Israel bound itself to the ICJ’s jurisdiction. Now the ICJ seems to think genocide by Jews is not so far-fetched, and Israel’s detractors hope the country will have to either live with that or openly denigrate a key institution in international law.

But Israel has more options and leeway than these gloating detractors might think. The ICJ proceedings have just begun, and for purposes of public opinion about Israel, the country’s timing can only improve. When oral argument began earlier this month, Israel’s war in Gaza was acutely gruesome, and Israel’s ability to manage the public perception of its conduct was nil. Future phases of the case may not favor Israel either, but likely won’t be as challenging as in early January, when the military operations were more intense than they are now, and dead children were showing up on social media every day.

Furthermore, if at some point the ICJ orders Israel to halt its military operations altogether, Israel will still have the option of resuming them under new circumstances. The ICJ has not (yet) endorsed the novel position, held by South Africa, that Israel’s occupation of Gaza continued even after Israel extracted all of its soldiers and civilians in 2005. An occupying power has limited claims to self-defense when attacked, as Israel was on October 7. But being an “occupier” has historically (and according to a commonsense understanding of the word) meant being physically present in the territory one is occupying. The ICJ did not deprive Israel of the right to defend itself, on the novel theory or any other. The right of self-defense can be invoked every time Hamas launches a rocket at an Israeli town. With this perpetually refreshed casus belli, Israel has its motives washed clean, over and over. It is still bound by the laws of war, but genocidal intent is harder to prove when Hamas is constantly furnishing new nongenocidal reasons for Israeli military action.

Israel is already mid-pivot in its war on Hamas. It started with the expansive goal of destroying the organization and bringing home the hostages taken on October 7. These stated goals differed from the goal that went unstated but was understood by virtually all Israelis—namely, the political goal of convincing Gazans (in their hearts, never mind the occasional blustery rhetoric) that mass slaughter of Jews had not been worth the trouble. By hiding in civilian areas and being diabolical, Hamas again furnished Israel with a plethora of lawful targets, so Israel could theoretically make Gazans very miserable without violating the laws of war. The stated goal of eliminating Hamas remains remote, but the unstated one—making October 7 a rueful memory—is close enough that Israel can rethink its strategy now, and might even appreciate an excuse to do so.

Between the view that Israel is genocidal and the view that it is blameless, there is a middle position that feels lonely in the present polarized circumstances. That position acknowledges that Hamas is a ghoulish terrorist organization, and that the attack on October 7 merited not just a response but one that eliminated Hamas’s ability to repeat its performance. In taking this view, one can also demand that Israel protect civilians, both Israeli and Palestinian, without distinction between them. This standard, which I endorse, is not a legal but a moral one.

I recently met an Israeli who said his son, an infantryman in the first waves of ground forces in Gaza, had called him to report seeing little violence up close, because as soon as anyone fired on them, air strikes were called in and the source of the resistance was apparently killed. I would not have this soldier needlessly exposed to danger. But the cost of his safety is probably borne in part by Palestinian civilians. I think that Israel is obliged to accept that many more of its own sons and daughters will have to die in order to prosecute this war in a way it can be proud of, exceeding every reasonable moral and legal standard. It has every right to be bitter toward Hamas for having forced it into this situation.

There are ways to criticize Israel without minimizing Hamas’s crimes—as South Africa did in its argument—and without reducing Palestinian lives to a featherweight burden, as Israel’s hawks, especially those outside its war cabinet, sometimes do. The arguments made before the ICJ earlier this month were infuriating, no matter whose side one took. To a Gazan, the discussion might have sounded altogether too distant—as if a few bewigged jurists in a land of tulips and commuter bikes could do a damn thing to stop the next apartment block from collapsing in Khan Younis. And the whole affair seemed calculated to drive an Israeli to madness. Hamas committed mass murder of Jews on October 7, and now the world’s first crack at achieving “justice” consisted of charging Israel with the exact crime that Hamas had bragged about committing, and vowed to commit again.

The ICJ’s arguments were unedifying for the same reason most politicized legal proceedings are unedifying. Observers tend to care about the politics, not the narrow question of law that is nominally the topic of dispute. That means legitimate moral questions have to be beaten into the background—although the advocates still speak with the orotundity of those judging good and evil. In fuzzy legal areas like international law, this tendency to expect too much—to expect the law to deliver more than it can—is especially pronounced. This war has been awful from October 7 to the present. One would have had to be an optimist, or maybe just a fool, to expect a courtroom in The Hague to make it any less so.



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