By Dr. Isaac Amon, Esq.

Managing Editor of TribunalForum

This Thursday and Friday, 11 and 12 January, the International Court of Justice in the Hague will hear a case for provisional measures brought by South Africa against Israel. Other countries and groups have now signed onto the case as well. The allegation is that Israel is committing genocide against the Palestinians in Gaza. As “evidence,” South Africa has submitted an 84 page submission, primarily centered around a litany of statements made by Israeli officials in the aftermath of the appalling Hamas terrorist attacks of October 7th.

Based on this rhetoric, South Africa conclusively claims that Israeli actions are calculated to bring about the destruction of the Palestinian people. They seek to have the ICJ order Israel to stop its military operations in Gaza. Yet, Israel’s actions, in the face of the worst attack in its history and the single deadliest day for Jews since the Holocaust, proves the opposite. Any reasonable observer could see this is not the case. It is not a complicated decision.

What is most notable in the submission is what is glaringly absent; South Africa could only bring itself to condemn “atrocities” in a brief sentence in the most blasé manner. There is no – even summary – description of outrages, rapes, mutilations, tortures, and slaughter perpetrated by Hamas that day. There is no mention of Hamas’ founding charter (1988) which openly calls for genocide against the State of Israel and Jewish people around the world. The irony (even “chutzpah”) of accusing the world’s only Jewish State, literally born in the ashes of the Holocaust, of genocide cannot be any higher.

South Africa also submitted this outrageous allegation knowing, as does the whole world, that Israel has constantly tried to prevent or minimize civilian deaths, notifying civilians of impending artillery strikes and ground incursions as well as leaving a path open for civilians to leave Northern Gaza for the south. They have granted recurring humanitarian pauses, which no other army would do. They have choreographed their next military objectives – all in order to save as many civilian lives as possible.

Unfortunately, these steps have not always precluded civilian deaths, which are tragically among the casualties of war. In stark contrast, Hamas deliberately targeted old and young, men and women, babies, and the elderly, bound their hands, and executed them. Others were abducted and over 130 hostages still languish in Gaza to this day, without being visited by the International Committee of the Red Cross. These actions defy the most basic human norms as well as violate international humanitarian law and human rights law.

U.S. Supreme Court Justice Robert Jackson (serving as Chief U.S. Prosecutor) said in his opening statement at the Nuremberg Trials in November 1945: “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” Those words nearly eight decades ago equally apply to the Hamas atrocities (applauded by so many yet denied by so many others) of October 7th. They are on par with the worst depravities of ISIS and the Nazis, especially the Einsatzgruppen.

In June 1941, during World War II, Nazi Germany invaded the Soviet Union. As the Wehrmacht advanced deep into Soviet territory, the Einsatzgruppen (paramilitary SS death squads) murdered by bullets over a million Jewish men, women, and children in Eastern Europe. At the subsequent Nuremberg Trials, the highest ranking 24 leaders of the Einsatzgruppen were charged with, and convicted of, war crimes and crimes against humanity.

Genocide was not yet officially a term, let alone considered to be an international crime, at that time; it would take a few more years for Raphael Lemkin – a Polish Jew who lost nearly fifty members of his family in the Holocaust – to convince others of this concept. While the Genocide Convention was adopted by the UN General Assembly in 1948, it took decades for many countries to ratify, including the USA. As of 2022, over 40 more have still not done so.

 

The chief prosecutor at the Einsatzgruppen Trial was 27 year old Benjamin Ferencz whom I was privileged to know when I was in law school. He just died last year at the age of 103. In a mere two days, he rested his case, not calling a single witness. Instead, he relied on the documentary record, meticulously compiled by the Nazis themselves. (Similarly, Hamas filmed their atrocities and widely shared them on social media. Their own words, images, and films condemn them before the law, as did the Nazis at Nuremberg. Hamas’ own actions should do so in the court of global public opinion as well.)

The defendants significantly tried to draw a moral analogy between the Einsatzgruppen massacres and Allied bombings of German cities. The Tribunal categorically rejected this line of argument, holding that “[a] city is bombed for tactical purposes… it inevitably happens that nonmilitary persons are killed. This is an incident, a grave incident to be sure, but an unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting thereon, dragging out the men, women and children and shooting them.”

This moral distinction should be innately and readily understood. Instead, social media, especially Instagram and TikTok, broadcasts accusations every day that Israel is violating international law, especially in its response to the terrorist attacks. No nation on earth would tolerate daily rocket fire across its borders, let alone the sheer scale of the ghastly crimes which Hamas deliberately carried out against Jews and non-Jews alike on October 7th.

Nonetheless, in the morally topsy-turvy world we unfortunately live in, Israel is branded the aggressor and Hamas (which has declared repeatedly and openly that it would commit as many future October 7th massacres as possible) is viewed as a legitimate resistance organization. In truth, Hamas – a recognized terrorist organization by the United States, United Kingdom, Israel, the European Union, and others – not only wishes to slaughter Jews and anyone opposed to its rule. It’s even willing to kill Palestinian people (and certainly let them die) to maintain its own hold on power.

Furthermore, the indelible reality is that rising Jew hatred factors into current events. From France to Australia, the United Kingdom to the United States, and Latin America to North Africa, anti-Jewish rhetoric and hate crimes are surging around the world. At many anti-Israel rallies, antisemitic slogans are now openly shouted and comparisons between the Jewish State and Nazi Germany are routinely made (an overt act of antisemitism per the IHRA definition). Unprecedented antisemitism is occurring around the globe and Jewish communities are living amidst fear and apprehension.

The atrocities of October 7th did not happen in a vacuum. Instead, it was generations of indoctrinating hatred towards Jews – building upon centuries of antisemitism – which metamorphoses across the ages. It did not begin in 2006 (when Hamas took power in Gaza), 1967 (when Israel captured Gaza, the Golan Heights, and the West Bank in a defensive war), or even 1948 (when the modern State of Israel was created by the UN, which the Arabs rejected). Hamas has weaponized antisemitism and global sympathy for Palestinians to attack, quite literally, the world’s only Jewish State and the Jewish people.

The International Court of Justice – the World Court – should stand up for the rule of law, justice, and side with what is legally and morally right, not popular. To order Israel to halt its continuing military action to recover remaining hostages and prevent the clear and present threat of future Hamas terrorist activity (a proportionate response) would deprive all countries of the right to protect their citizens – a right of self-defense enshrined under international law and the UN Charter.

It would disregard history, pervert the facts, and create a dangerous precedent.

It would grossly (and some may say offensively) distort the legacy of the Holocaust and the Genocide Convention.

It would be a travesty of what Raphael Lemkin, Robert Jackson, Benjamin Ferencz, and so many others sought to build for future generations.

Let us hope that the ICJ rises to the great challenge before it.

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Dr. Isaac Amon is a former legal fellow at the International Criminal Tribunal for the Former Yugoslavia in The Hague, research assistant to the ICC Special Adviser on Crimes Against Humanity, and an ISIS war crimes investigator. He earned a J.D., LL.M in dispute resolution and J.S.D. (PhD in Law) in comparative criminal procedure from Washington University School of Law in St. Louis. He frequently speaks to lay and professional audiences on the law, antisemitism, and Jewish history and memory. He also serves as Director of Academic Research at Jewish Heritage Alliance, an educational organization dedicated to promoting the legacy of Sefarad, or Jews of the Iberian Peninsula. Click here for his bio.