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This morning the International Court of Justice at the United Nations released a new interim ruling at the behest of South Africa, urging Israel to please stop defending itself so hard, and urging the Jewish State to allow Hamas to continue its reign of terror.
The order was read by the President of the Court, Judge Nawaf Salam, who previously served as Lebanon's ambassador to the United Nations. During his tenure as ambassador Salam routinely accused Israel of apartheid, war crimes, and terror. Why is this important? Because under the ICJ's charter (Article 17, Section 2) "No member may participate in the decision of any case in which he has previously taken part as... advocate for one of the parties...or in any other capacity." Aside from his obvious bias, Lebanon has supported South Africa's filing. That is why in March a bipartisan group of lawmakers from the U.S. wrote a letter expressing their concern about his involvement in this case.
Thankfully, today's actual ruling is as worthless as the Court that pronounced it. Contrary to the gleeful and popular reporting, the ICJ judges did not order Israel to immediately stop its operations in Gaza; in fact as experts immediately noticed the order was very clear that Israel must "immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part. Thankfully, Israel is not and never has been engaged in anything that could remotely be described as doing that. And so consistent even with this political theater of a ruling, Israel will continue engaging in Rafah, and will continue to be careful.
As retired Colonel John Spencer, chair of Urban Warfare Studies at West Point pointed out in response to ICJ, the IDF is "taking extreme care to protect civilians in Rafah. Evacuations have been very effective. Reports of over 900,000 civilians safely evacuated. IDF operations constrained, methodical, slow." For the record, a safety evacuation, which is literally an international law requirement under the Geneva Conventions (Articles 57 1(c) and 58(a) of the 1977 Additional Protocol I), cannot then also constitute a war crime.
Note that the Court was also very careful not to accuse Israel of committing genocide, and just to warn them not to do it (which is fine, because that was never part of Israel's plan.) Under the Convention on the Prevention and Punishment of the Crime of Genocide, genocide is a crime that requires specific actions and intent- i.e. acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. By all accounts Israel has the military capability to completely destroy Rafah, and the entire Gaza Strip, in a matter of minutes if it so desired.
Noticeably, Israel has not done so, and instead has taken extreme measures to protect civilians. Contrast that complete lack of genocide and/or genocidal intent with the actions and intent of Hamas, a group that does not have the capability to destroy Israel but has repeatedly and officially vowed to, and tried to commit genocide.
The comparison is important, because today's order also did not take into account the enemy and ongoing threat that Israel is facing, nor did it consider the possibility that Israel's actions are lawful under the doctrines of military necessity, proportionality, force protection, or deterrence in responding to a terrorist organization. Per the ICJ's own jurisprudence on genocidal intent, "for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent" (Bosnia v. Serbia (2007)). Genocidal intent would have to be "the only inference that could reasonably be drawn from the acts in question" (Croatia v. Serbia (2015)), and the standard of proof required for that inference is "fully conclusive."
The only way to claim that Israel is committing genocide in Rafah would be to simply pretend that Hamas is not there, still indiscriminately firing rockets at Israeli civilians, cruelly using their own people as dispensable human shields, and holding innocent men, women, and babies hostage.
But Hamas is there, and committing war crimes daily, despite Israel's repeated assertions that if they would only surrender the war would stop. Israel has already killed dozens of Hamas terrorists in Rafah, uncovered hundreds of terror tunnel shafts, and recovered the bodies of several slain hostages. No matter what anyone thinks about Israel's military response, no reasonable person could conclude that the only possible inference here is that Israel is intent on genocide. Even the ICJ would not go that far.
It is also important to remember that the ICJ is just another organ of the problematic United Nations, with judges elected by the clearly biased General Assembly and Security Council. It's great that this time Israel came out once again (mostly) unscathed, but it remains as true as ever that demonization, delegtimization, and double standards are at play when it comes to the Jewish state. There is a word for that.
Dr. Mark Goldfeder, Esq. is director of the National Jewish Advocacy Center.
The views expressed in this article are the writer's own.
