When we Jews celebrate Passover, Pesach in Hebrew, on the night of the festive dinner, the children sing: Why is this night different from all the others? Taking this song from our traditions, I could begin this dissertation by asking: Why is this case different from the others that have been treated by the Court under the convention against the prevention of genocide, which, among others, are not as many as they should be, for those reasons? imbalances in the international system? What is that difference from heaven to earth?
While the Muslims in Bosnia, the Rohingya in Myanmar, the Tutsis in Rwanda, or the peaceful citizens of Cambodia never attacked their perpetrators, Israel has been the victim of a massacre of unspeakable violence by Hamas, the Palestinian government in Gaza, since 2007 when it forcibly expelled the Palestinian Authority, whose reason for being, as declared in its founding charter, is the destruction of the Jewish State, a clear genocidal intention.
Contrary to the cases mentioned above, the State of Israel has the right to self-defense as established in Article 51 of the United Nations Charter. The Genocide Convention, established by the United Nations in 1948 in response to the Holocaust, was ratified by Israel in 1951 as a clear message that what happened to the Jewish people in the Second World War must not happen again, to anyone, to any people, to any human collective.
Since its founding, the State of Israel has faced enemies determined to wipe it off the map. On its first day as an independent State, it faced its first war whose objective was “to kill that baby in the cradle.” This has placed Israel in the dilemma of having to face wars that it never wanted, first against states and then against non-state actors supported by states. Actors who, if not confronted by Israel, would destroy the Jewish State.
Actors for whom international law does not exist, who blend in among the civilian population that they use as human shields for their further objective. Non-state actors such as Hamas or Hezbollah, a Lebanese organization, a country with which Israel does not have any conflict, which nevertheless attacked Israel in 2006 and which currently, without any provocation, launches rockets and missiles against the population of Northern Israel, which It had to be evacuated four months ago.
The civilian population of Gaza is prisoners of Hamas, which does not care about their fate. As one of its main leaders declared after October 7 from the comfort of Qatar, Moousa Abu Marzourk: “Civilians are not our responsibility, that is why we do not let them enter to protect themselves in our tunnels.”
South Africa's motivation for suing Israel before the Court for violation of the Genocide Convention is questionable. This demand comes from a country that, although being part of the International Criminal Court, failed to comply with its obligations by not extraditing the then president of Sudan Omar al Bashir when he visited South Africa while an arrest warrant was in force against him by the ICC. Repeated statements by South African government officials refer to the “75-year occupation of Palestine,” thereby denying Israel's right to exist.
However, despite seeking to raise its profile as a champion of human rights, the Court's ruling regarding the announced provisional measures leaves South Africa with "the worst facts." Their main demand, that the Court force Israel to a unilateral and immediate ceasefire, thus handing a victory to Hamas on a silver platter, was rejected. By not acceding to this demand, one of the nine demanded by South Africa, the ad-hoc judge of Israel Aharon Barak explains in his opinion that the Court implicitly recognizes Israel's right to self-defense against an act of barbarism during the in which 1,200 Israeli civilians were murdered, women were raped and harassed, babies and children were gunned down, entire villages were destroyed and burned, and 240 civilians were kidnapped.
The right to self-defense does not apply only to an act of aggression that has already been completed, but also to the potential for similar acts of aggression to occur in the future when the aggressor has expressed it and has the means to do so.
Ghazi Hamad, a Hamas politburo member, said on October 24 that "there will be another and another attack like October 7 until the annihilation of Israel." Any state would take that threat seriously.
Aharon Barak is one of the world's most recognized and reputable jurists in international law. He was the architect of Israel's judicial system, which operates independently of the other branches of government. Barak has been the father of a leafy body of legislation in favor of minorities in Israel, the Arab population, LGBT people, and women, and in defense of the rights of Palestinians in the occupied territories.
Barak, who is also a Holocaust survivor, voted against four of the provisional measures issued by the Court, considering that they were not appropriate, and favored the non-state actor not part of the process. However, he supported two measures that Israel was already complying with: Entry of humanitarian aid to the Strip and avoiding dehumanizing expressions from Israeli officials, which are being investigated by the State Prosecutor's Office.
Barak mentions in his opinion: “Whenever there is tension between Israel's national security and the protection of the human rights of non-combatant civilians, the former must be achieved without compromising the latter.” He adds that international law is an integral part of the Israeli Army and the State doctrine and that the various rulings of Israel's supreme court “demonstrate the commitment to the rule of law and human life.” Any excess or violation of international humanitarian law by members of the Israeli army is investigated by the justice system, as there are already some cases under investigation due to the current war in Gaza.
It is a requirement for the figure of genocide to be established before the Court that there is an intention to commit it. In the case of Rwanda, the Hutus called for genocide against the Tutsis through the media and voice-to-voice incitement, also handing over the weapons to do so.
Not only does Israel not incite genocide, but on several occasions, it has sought to reach peace with the Palestinian people, opportunities missed both by the reluctance of the PLO at the Camp David 2000 summit and by the actions of Hamas and other organizations to those that peace with Israel goes against their genocidal mission to destroy it.
Let us remember the Palestinian suicide bombers who, between 2000 and 2005, destroyed the OSLO agreements. Additionally, it is necessary to mention that two million Palestinian Arabs are citizens of Israel and enjoy full rights.
On the other hand, Hamas and other Palestinian organizations constantly incite Jewish genocide and the destruction of Israel. In the same Palestinian authority under the control of the PLO, the children's textbooks paint the map of Palestine which includes the entire territory of Israel.
It is necessary to remember the role of Iran whose leaders do not miss the opportunity to declare that “this cancer must be removed from the Middle East”, and who support, finance, train, and supply organizations such as Hezbollah and Hamas whose mission is the destruction of the Jewish State.
As has been revealed in these four months, Hamas massively violates international humanitarian law and the laws of war with its tunnels command and control centers, and missile launchers located in civil infrastructure, schools, mosques, hospitals, and residential neighborhoods such as the building of apartments in Rafa from which two of those kidnapped on October 7 were released a few days ago. Hamas has turned the Gaza Strip into a terrorist hideout to attack Israel using the Palestinian population as human shields.
Israel never initiated military actions against Gaza or the West Bank that were not in response to previous attacks, whether with rockets, missiles or like the pogrom of last 7/10, therefore, there is no intention to cause harm to the Palestinian civilian population. but to react in legitimate defense against attacks.
Israel is forced to fight an impossible, tragic war, which has caused great suffering, and a regrettable number of Palestinian civilian victims, but there is no doubt that if there had not been October 7, none of that would be happening. The war in Gaza could have ended the moment Hamas handed over its weapons and hostages. There would be no reason for Israel to continue it.
By accusing Israel of violating the anti-genocide convention, South Africa is covering up Hamas' crimes which, as in any case, cannot be evaluated by the Court.
The provisional measures issued by the Court against Israel in which it orders it to “do everything within its power to avoid committing actions contrary to the Genocide Convention” assume the “plausibility” that genocide could be committed, based on the arguments presented by South Africa, ignoring both the lack of intention to commit genocide on the part of Israel, and the measures taken by its army, recognized by the Court in its ruling, to avoid the loss of human life among civilians.
Under that same bias, the Court determines in its ruling the right of the Palestinians to be protected under Article 3 of the convention against genocide, which must be so. Why doesn't the court determine that Israelis also have the right to be protected? It is Israel that is facing genocidal organizations.
One of the arguments to accept the “plausibility” are the figures of victims, mentioned in the ruling, taken from the Hamas authorities in Gaza and endorsed by UNRWA, a highly questioned organization, figures that lack veracity, starting with the fact that They do not discriminate civilians from combatants.
The Court rescues the tragedy of the Israeli hostages kidnapped to be cynically used by Hamas as bargaining chips and that, at the time of this writing, 134 remain in captivity without knowing their status, not even if they are alive.
If it so wished, South Africa, as a plaintiff before the Court, could comply with this provisional measure by demanding that Hamas immediately and unconditionally release the hostages.
We must rescue the opinion of the Ugandan judge, Julie Sebutinde, who wisely departed from all the provisional measures issued by the Court, arguing that it is a historical and political conflict that must be resolved through negotiation between the parties. and that the Court has nothing to contribute in this regard. The judge added that there is no evidence to justify South Africa's demand and the adoption of provisional measures.
A historical, political, and identity conflict that will one day be resolved through negotiation between the parties, a negotiation that will be possible when organizations like Hamas, which has caused immense damage to the Palestinian people and peace, are no longer on the scene.
This editorial was originally published in Spanish in Enlace Judío México.
