Words Matter: Israel, South Africa, and the International Court of Justice

Oasis Songs: Musings from Rav D
Friday, January 12, 2024 / 2 Shevat 5784

Summary: would like to publicly thank congregant and colleague, Rabbi Daniel Pressman, who responded to last week’s Oasis Songs column; he provided me the source on when it is not permitted for someone to dye their hair, which comes from the Talmud itself (Bava Metzia 60a).

Below are some initial thoughts about the current trial at the International Court of Justice, where South Africa has accused Israel of committing genocide.

Reading Time: Six minutes

Words Matter: Israel, South Africa, and the International Court of Justice (ICJ)

As many are aware, South Africa brought charges of genocide against the State of Israel in one of the legal bodies of the United Nations, the International Court of Justice. Arguments were heard, beginning yesterday. Because of time constraints, I want to make two quick points at this time: if this is a topic in which people have interest, it would be possible to explore this legal case more deeply and to explain more thoroughly my own evolving thinking on this historic and pernicious case, while also providing more sources for those who want to continue their own investigation. If this is a topic on which you would like to hear more, please reach out.

The Charge of Genocide against Israel

Let’s begin by noting that South Africa has had a long and cozy relationship with Hamas; their almost complete avoidance of mentioning or describing Hamas’s actions on October 7th, let alone before or after, ought to raise suspicions about the purity of their efforts; they claim to be defending the genocide conventions on behalf of the world, while making virtually no mention of Hamas’s explicit and continual statements of both genocidal intentions and actions. Top Hamas leaders have repeatedly and proudly stated that their goal is to completely rid the land of Jews and their impurity. More relevant than their rhetoric, however, is their record of investment in tunnels and weapons, aw well as activities, such as, but not limited to, October 7th. It is this which clearly demonstrates we are not dealing merely with inflammatory rhetoric, in which too many politicians engage. In other words, Israel, which is engaged in a defensive war against a highly sophisticated terror organization whose explicit goals and tactics are genocidal, has to defend itself against the most despicable sophistry and double-speak, because it is accused of committing genocide.

While I have only been able to skim South Africa’s application, most of its charges seem baseless, lacking in reliable evidence or proof, and highly decontextualized in the most biased manner possible. I have written previously about the efforts the Israeli military consistently takes to avoid civilian harm, have indicated that in all urban warfare, both sides pay an incredibly high price in loss of life, and that civilians usually pay the highest price because of the complexities and difficulties of fighting in an urban theater. This is, of course exacerbated by Hamas’s tactics, which include putting their own civilians in harm’s way to benefit their cause. At this juncture, there is no credible evidence to suggest that Israel has committed or intends to commit genocide. Indeed, the very opposite picture emerges in which the Israeli military has taken great pains to keeps its focus on Hamas in an incredibly difficult theater of war in which Hamas intentionally desires Gazan civilians to die to further their aims.1

If the ICJ were to find Israel guilty of genocide, it would be a terrible farce of justice that ultimately would strengthen the hands of autocracies, terrorists, and other forces of evil. It would also represent a despicable cheapening of language, such that the word genocide would be hollowed of all meaning, essentially gutting the conventions that were put into place in the hope of preventing genocide. Moreover, it would highlight how insufficient current law is to provide guidance on urban warfare to countries who wish to both defend themselves and their citizens even while living up to their responsibilities as signatories to the Convention on the Prevention and Punishment of the Crime of Genocide. Given some of the historical animus and unfair treatment that Israel has received, I would sadly not be surprised if Israel is found guilty of these charges, yet the cost of such a decision will endanger countless people around the globe for decades to come. It is also worth noting that the ICJ has, to date, never held another country legally liable for genocide.2

The Role of Israeli Politicians in Incitement to Genocide

Where South Africa has made a strong case is a secondary charge of incitement to genocide. It collected many instances when far-right Israeli politicians have made disturbing, disgusting, and dehumanizing statements about the Palestinian people. Here is a link to their application in English; on pages 59-67, you will find many of these vicious and inappropriate comments.3 Just as I hold Hamas accountable for its hateful speech and dehumanizing language about Jews and Israelis we also need to take ownership when we engage in similar rhetoric.

What has saved Israel repeatedly over the last year during the civil protests about the proposed judicial overhaul and now in its war with Gaza, is the IDF itself. Normally, in democratic countries, it is the role of the citizenry and its elected officials to ensure that the military remains wedded to democratic principles and acts accordingly. Instead, we have witnessed how the IDF’s leadership has convincingly and regularly provided that bulwark while being a firm defender of Israel’s best democratic values. Ultimately, that is a perilous position for any country to be put in. As I wrote a few weeks back, this is a place where I do think American Jews can play a role. After a hundred years of conflict, no one can be surprised when either Israelis or Palestinians dehumanize the other, yet words matter. As Jews, we ought to know this better than most, for we have repeatedly been on the receiving end of vitriolic antisemitic speech in every country where we have resided. One can have an enemy, as Israel does, without resorting to completely inappropriate language. Because we have the privilege of not living under the existential threat that Israelis are, it is easier for us to remind our Israeli brethren of this.

Yes, Israel must eliminate Hamas, or we will see continued and more severe suffering than even this war has produced. As with any counter-insurgency effort, this is a difficult task that will demand an inordinate amount of time, coming at a huge cost to all involved. Routing out a pernicious terrorist organization is challenging enough. Routing out hateful ideologies is even more difficult, yet if Palestinians and Israelis are to enjoy peace, this must be done. At this point, Israeli society must stand up against its political class whenever their leaders engage in a language of incitement. We can’t be seduced by the rush of overheated and nasty rhetoric; we need to resist that in all parts of our life. During recent years, we know that America is also struggling with this. Words matter, and eventually bad words lead to bad actions.

Shabbat Shalom,

Rav D

1 https://www.nytimes.com/2023/11/08/world/middleeast/hamas-israel-gaza-war.html

2 But the ICJ did determine that Serbia did not prevent genocidal action in Srebrenica; it also decreed provisional measures in the case of Myanmar against its Rohingya population. As I understand, this phase of the trial or case also is in the provisional measures phase.

3 https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf. I owe thanks to Nathaniel Berman, who provided me the reference to these pages, which I most likely would not have located on my own.

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