The ICJ and other matters

 

Old soldiers never die, they live on forever as guests on our TV news panels. Former directors of Aman (military intelligence), Mossad (overseas intelligence) and Shabak (internal security) and their deputies too, are frequent guest speakers on all our TV channels.

Lately, they have been asked to comment on how the Israeli War Cabinet remains divided on whether to push for a deal that would secure the release of 132 Israelis held hostage in Gaza.  Minister without portfolio in the Israeli war cabinet, Gadi Eisenkot has called for significant efforts to bring the hostages home. Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant argue that maintaining the military campaign is crucial to securing their release. Eisenkot served as the IDF’s 21^st Chief of Staff. His son and a nephew were killed in the current Gaza war.

The Qatari offer to broker a temporary truce, providing a roadmap for ending the war, including Hamas’s leaders going into exile and Israel withdrawing its troops from Gaza, has added another dimension to the negotiations. Qatar, of course, is the exception in the Arab League as the host to Hamas leadership and supporter of the Muslim Brotherhood.

Defence Minister Yoav Gallant maintains that, "The enemy we face understands only force - without military pressure no one will talk to us, only from a position of strength will we be able to bring the hostages home."

Israeli Reserve Army General Noam Biton and other retired defence and security personnel are calling for an immediate hostage exchange deal with Hamas. Expressing doubts about the effectiveness of Gallant’s “only by force” stance. Biton emphasises the need for urgent action to prevent additional deaths among Israeli hostages.

Occasionally, New York Times columnist Thomas L. Freidman adds a word of advice to the Palestinians. He tells them to explain clearly what they want. They should provide a detailed map of the final two-state settlement they are “seeking. Just calling for “an end to occupation” won’t cut it.

Palestinians need to accompany every boycott, hunger strike or rock they throw at Israel with a map delineating how, for peace, they would accept getting back 95 percent of the West Bank and all Arab neighbourhoods of East Jerusalem and would swap the other 5 percent for land inside pre-1967 Israel. Such an arrangement would allow some 75 percent of the Jewish settlers to remain in the West Bank, while still giving Palestinians 100 percent of the land back.  “ Maybe the percentages have changed a little since Freidman first penned his opinion in 2012, but his advice to them is still relevant.

Just the same, it’s clear that no Palestinian leader would be prepared to sign an agreement that states the refugees won’t be coming home.

 A report in The Telegraph told how Israel is defending itself on another front.

Aharon Barak, 87, who was smuggled out of a ghetto in a potato sack in 1944 and went on to lead Israel’s supreme court, is heading a delegation that will begin court proceedings this week in the Hague.

The UN’s International Court of Justice (ICJ), is being asked to rule on whether to open a full case on South Africa’s claim that Israel intends to commit genocide in Gaza.  

Israeli lawyers are concerned that highly-charged comments from Israeli ministers about Gaza over the last few months may have constituted at least an incitement to genocide, a key plank of the case.

Lauded as one of Israel’s great jurists and one of its finest legal minds, Aharon Barak served on Israel’s supreme court for 28 years, including 11 years as its president.

Under his leadership the court became extremely activist. This provoked backlash in Israeli politics. A reaction that led to a kind of recalibration of the court where it is still filling its traditional role of defending fundamental rights and ensuring the integrity of the political process.

As an eight-year-old boy in 1944, he was smuggled out of the Kovno ghetto in present day Lithuania by a farmer before eventually settling in Jerusalem with his family.

The robust engagement with the International Court of Justice is unusual for Israel, which normally considers the United Nations and international tribunals as unfair and biased. The decision to participate rather than boycott reflects Israeli concerns that the judges could order Israel to halt its war against Hamas and tarnish its image internationally.

“Israel cannot run away from an accusation that is so serious,” said Alon Liel, a former director general of Israel’s Foreign Ministry and a former Israeli ambassador to South Africa.

Israel hopes their expertise will trounce the South African claim that Israel’s military campaign in Gaza amounts to genocide and prevent an interim court order to force Israel to stop the fighting. Israel says halting the war when Hamas’ capabilities are intact in many places and with hostages still being held captive would amount to a Hamas victory.

Israel vehemently disputes the genocide claims, saying it is fighting a war of self-defence and its actions comply with international law. Furthermore, Israel claims that it does its best to prevent harm to civilians, blaming Hamas for embedding its forces in densely populated residential areas.

The case will likely drag on for years. But South Africa’s filing includes a request for the court to urgently issue legally binding interim orders for Israel to “immediately suspend its military operations in and against Gaza.”

If it doesn’t abide by the court’s orders, Israel could face U.N. sanctions. Although the U.S., Israel’s closest ally, could veto such a move, doing so would anger many Democrats who have already soured on President Joe Biden over his strong support for Israel in the war. That could be damaging for Biden as he seeks re-election

British lawyer Malcolm Shaw, who will defend Israel, is the author of what’s seen as the definitive textbook on international law. He has represented numerous states, including Ukraine and the United Arab Emirates, in international litigation, including at the International Court of Justice.

Robbie Sabel, a former legal adviser at the Israeli Foreign Ministry who counts Shaw as a friend, said it remained to be seen whether judges from nations with poor ties to Israel will rule objectively. But he said Israel had positioned itself to meet the charges head on.

“They chose the top people,” he said. “It means Israel is taking the charges brought against it very seriously.”

However, remarks made by some Israeli politicians and rank and file Israelis, are both counter-productive and inflammatory.

Associated Press columnist Tia Goldenberg quoted a few examples – “Fighting ‘human animals. ’Making Gaza a ‘slaughterhouse.’ Erasing the Gaza Strip from the face of the earth.” Such inflammatory rhetoric is a key component of South Africa’s case accusing Israel of genocide at the U.N. world court, a charge Israel denies. South Africa says the language — in comments by Israeli leaders, soldiers and entertainers about Palestinians in Gaza is proof of Israel’s intent to commit genocide. 

Israeli leaders have downplayed the comments, and some in Israel say they’re a result of the trauma from Hamas’ attack.

The majority of countries backing South Africa’s case are from the Arab world and Africa.

No Western country has declared support for South Africa’s allegations against Israel. The U.S., a close Israel ally, has rejected them as unfounded, the U.K. has called them unjustified, and Germany said it “explicitly rejects” them.

China and Russia have said little about one of the most momentous cases to come before an international court. The European Union also hasn’t commented.

U.S. Secretary of State Antony Blinken said on a visit to Israel a day before the court proceedings began that South Africa’s allegations are “meritless” and that the case “distracts the world” from efforts to find a lasting solution to the conflict. National Security Council spokesman John Kirby said genocide is “not a word that ought to be thrown around lightly, and we certainly don’t believe that it applies here.”

“We don’t agree with what the South Africans are doing,” U.K. Foreign Minister David Cameron said of the case.

Blinken said a genocide case against Israel was “particularly galling” given that Hamas and other groups “continue to openly call for the annihilation of Israel and the mass murder of Jews.”

I think his summing up was aptly put and accurate.

 

Have a good weekend.

 

Beni,

 

18^th  of January, 2024.