On Friday 26 January, the International Court of Justice (ICJ) ruled on South Africa’s request to order Israel to cease its military operations in Gaza, arguing that there was a “serious risk of genocide”. The answer is clear: the ICJ does not consider that genocide is taking place. It even explicitly stated that there was nothing in the measures pronounced that would lead to any conclusion in this respect. What remains to be analysed is the political significance of the proceedings as a whole. This raises the question of why South Africa hailed a “decisive victory for the international rule of law…”.
South Africa’s application to the International Court of Justice accusing the State of Israel of genocide in Gaza has produced its first result: provisional measures ordered on Friday, January 26. Objectively, there is nothing shameful about these measures; politically, however, the opposite is true, and that was South Africa’s goal. Indeed, by initiating these legal proceedings, post-apartheid South Africa—which for decades has championed the Palestinian cause on the world stage—has taken its position one step further by severing all diplomatic relations with Israel. Maintaining them could have led to mediation between the two states—as Israel has indeed proposed—to assuage (or not) South Africa’s alleged concerns about the situation in Gaza. We can legitimately suspect that South Africa’s refusal to mediate and its rush to the International Court of Justice were prompted by a motive less honorable than genuine concern for the fate of the inhabitants of Gaza, i.e., to divert the attention of its own citizens and world opinion from the political, economic and moral bankruptcy of the ruling ANC party by singling out an enemy already hated by many, and to establish itself as the “moral conscience of the world” while welcoming delegations from Hamas.
Many have expressed astonishment that Israel, while the true motives of its accuser seem relatively obvious, would still come before the court to answer these charges. This is hardly surprising. In this case, Israel is defending itself in good faith against an accusation it believes to be unfounded, unjust, and opposed to the very principles it claims to defend. Indeed, this country, which had just been created in 1948, hastened to sign and ratify the Convention on the Prevention and Punishment of the Crime of Genocide adopted the same year. For Israel, this was the very meaning of its creation as a state. This convention would never have seen the light of day had it not been for the efforts of a militant network of Jewish jurists—notably Lauterpacht and Lemkin, who were also Zionists and who had initially participated in the Nuremberg trials—to draft its provisions in the UN legal commissions and to fight for its adoption and signature. After the war, these lawyers were the ones who worked on the development of international law, and they did so with the same energy with which they supported the creation of an internationally recognized state for the Jews. In their eyes, these were two sides of the same coin that had been shaped in 1948.
Under these conditions, we can better appreciate the infamous scope of South Africa’s accusation, objectively desired by the latter and subjectively experienced by Jews all over the world, against that special mechanism for preventing the crime of genocide, which is the State of Israel itself. As the war continues to claim an increasingly intolerable number of Palestinian civilian victims, the enemies of Israel hope that this reclassification of the armed conflict is only the first step toward the final banishment of the Jewish state from the international political scene. As for the Israelis and the Jews of the Diaspora, they feel that the state instrument they acquired after the Shoah in order to protect themselves definitively against any attempt at genocide is being dragged through the mud. Yet, in their view, they are using this very tool to confront an existential threat of genocidal intent that has been unleashed against them, and which consequently—if Israel’s vocation is indeed to be the ultimate guardian of all Jews—hangs over the entire Jewish world.
The insult of the Jewish world and the jubilation of South Africa and Hamas testify to a sad truth—the reputation of states is as much at stake as that of individuals. The mere fact that the application was filed has already tainted the State of Israel since some jurists have considered that such a move was indeed feasible. Moreover, the fact that the Court has just declared it sufficiently admissible—without making a definitive pronouncement on its own jurisdiction—to formulate provisional measures, irreparably damages Israel’s image in the world. The fact that the Court in no way states that genocide is indeed taking place in Gaza does not repair this political and moral damage. For it cannot deny the request, and in the face of the humanitarian situation and its potentially irreversible consequences, the judges state that something in Israel’s war in Gaza may justify questioning the applicability of some of the provisions of the 1948 Genocide Convention.
Taking note of this decision and not questioning it for the sake of respect for international law does not in any way mean that it should not be read. On the contrary, it is a necessary task, since the law is endowed with the kind of authority that makes it a common point of reference, a pole of orientation for opinions, regardless of what one may wish. But what the decision says is precisely this: something in the global situation constituted by war, or in what must be called the situation of war—which, understood in this way, cannot be reduced to military operations alone—is relevant to the Convention on the Prevention and Punishment of the Crime of Genocide. On the other hand, the war itself, the military action carried out on the ground, is not. This is the Court’s decision, a complex one, it is true, but one that public opinion often does not even try to understand.
And yet there is unanimity on this point—the Court did not order Israel to cease fire. The least we can conclude from this abstention is simply that the Court believes that genocide is not being committed as a result of the military operation in Gaza. This contradicts the rhetoric circulating among anti-Zionists who are eager to comment on the decision and interested in feigning enthusiasm in order to create a ripple effect. What the Court is saying is that there is a “plausibility” that this could become the case, and the provisional measures ordered against Israel serve to ensure that this plausibility is reduced until it disappears altogether.
On what is this claim of plausibility based? On objective signals—the catastrophic deterioration in the living conditions of Gazans, as well as statements by certain Israeli officials—which have no intrinsic link with the Israeli military campaign in Gaza, but which coincide with it. This lack of intrinsic link is the reason why the Court rejects South Africa’s main demand for a halt to the fighting, and only asks Israel to intervene in the war as a whole, including as regards statements by politicians and the humanitarian disaster caused by the fighting. The measures requested from Israel are of two kinds—first (measures 1&2), Israel is called upon to bear constantly in mind the terms of the Convention it has ratified and thus undertaken to respect. Then (measures 3-5), concrete measures are imposed—first of all, Israel must legally sanction verbal incitement to genocidal acts; second, it must address the deteriorating conditions of the Palestinian people through increased humanitarian assistance; and third, it must prevent the destruction and preserve any evidence of genocidal practices.
Aaron Barak, who served as an ad hoc judge in The Hague to rule with his 16 distinguished colleagues on South Africa’s charges, voted in favor of provisional measures 3 & 4 (sanctioning incitement to genocide and increasing humanitarian assistance). However, in his separate opinion in support of his opposition to measures 1, 2 and 5, he points out that in accusing Israel of violating the Convention, South Africa has reversed political reality by wrongly attempting to “impute the crime of Cain to Abel.” Indeed, what has been erased in the entire proceedings—but what is clear from a reading of South Africa’s submissions during the hearings—is that Israel is currently waging war against an enemy whose genocidal intentions are visible to the world and expressed by its actions. What has been erased is that Israel is fighting an enemy that is neither legally nor morally bound by any obligation because it is not a state, nor does it feel bound by the universal normativity that should govern any authority effectively governing a territory and a population.
And yet, Judge Aaron Barak voted for certain provisional measures. Does this explain the infinite sadness of the text he published? It certainly does, in part. His text begins with a few biographical details. He is a Lithuanian Jew, a survivor of the Holocaust, in which 95% of the European Jewish community was exterminated. As such, he is particularly proud of the contributions of post-war Jewish jurists to the creation, establishment and enforcement of international law, and in particular, let us repeat, of the Convention on the Prevention and Punishment of the Crime of Genocide. Barak is most disturbed by the baseness of the South African political maneuvering, which in his eyes—since South Africa has refused any mediation—is less about protecting the Palestinians than about symbolically, morally and politically disgracing the State of Israel. But he is also distressed to see himself, in his soul and conscience, as a great jurist, forced to vote for provisional measures that call on his own country from the outside to act differently.
And that’s exactly what Aaron Barak chose to do. As president of Israel’s Supreme Court, he established many of the legal safeguards that protect Israeli democracy, the same safeguards that Netanyahu’s far-right government tried to tear down in the run-up to October 7. The Israel he helped create and strengthen, an Israel committed to the rule of law at home and abroad, was already being challenged before the Hamas massacres. And in Barak’s eyes, there seems to be no doubt that some of these attacks are continuing from within the state. Indeed, the far-right members of Netanyahu’s coalition—who, it must be emphasized, are not in the war cabinet and therefore are not decision-makers in this war —are calling loudly and clearly (perhaps all the more loudly because they know themselves to be objectively powerless in the field of foreign policy) for acts against the Palestinians that fall within the scope of what is prohibited by the Convention. Nor can we. That these words tarnished Israel’s reputation and contributed to its being dragged before The Hague Court is what Barak does not forgive, and what we should not forgive. Nor do we forgive the fact that the authors of those words continue to hold positions of responsibility in Israel, including control of the forces of law and order. In particular, the police under Ben Gvir are in a position to tolerate such reprehensible acts as the blocking of humanitarian aid by Israeli citizens, raising doubts as to whether Israel is really doing all it can to increase humanitarian aid. Aaron Barak, by voting in favor of this precautionary** measure, which calls on Israel to ensure the supply and intensification of this aid, has done nothing other than express his disapproval of these actions.
And so we understand the deep sadness that colors the text in which Barak reasons his separate opinion—not only is Israel being denigrated, not only does this accusation reverse the coordinates of political reality, where Israel is in fact facing an enemy that seeks its total destruction; but what’s more, the Jewish state is not protecting itself against elements within its own ranks who, by confusing the Zionist project with the exercise of brute force, shamelessly feed the fantasies of the “Jew, enemy of humanity” among its adversaries.
The State of Israel, Israeli society and the Jewish world must take note of The Hague ruling. For a part of the common political consciousness driven by resentment and hatred, and for another part lazy enough not to take too close an interest in this affair, the name of Israel is now associated with the word genocide, and this time on the side of the guilty. The coherence of the category of genocide, centered on the identification of the intent to kill a targeted population, therefore had to focus on the facts of the discourse in order to be applied to the case, but the main thing was that it was considered relevant. This was certainly South Africa’s aim, and it won on this level of association of a name and a word. The Palestinians, however, certainly gained nothing from the fact that world opinion was focused on this legal scene; and since Israel’s war was not declared illegitimate by the Court in terms of the Convention, they gained nothing at all, except that after the war they will find themselves in a political situation where the dividing lines will be even more impassable than they were before.
However, if we follow the example of Aharon Barak and do not allow ourselves to be drawn into the low politics that the applicant State is trying to bring to the debate, we cannot help but see a positive glimmer in this decision. The defensive war waged by Israel to restore its security after the aggression of a movement that is still active and still holds many hostages has not been delegitimized. And the Court gives the opponents of the extreme right and of the current government the means to restore Israel to its original Zionist project—a democratic state governed by the rule of law, Jewish in its understanding of its moral, political and historical obligations to itself and to the whole world.
The Editors
