The International Court of Justice in The Hague is a spectacular building. Its arched ceilings, colorful mosaic floors, marble walls and stained glass windows seem to struggle for visitors' attention. As is often the case, aesthetics can cover up a terrible injustice and moral distortion that may yet emerge.
Members of the Israeli team. Today their stage,
The ICC may be a judicial tribunal, with rules and arguments, but it is primarily diplomacy. No one has any doubt how the Somali, Lebanese or Ugandan judge will rule on South Africa's claims of Israel committing murder against Palestinians. A Justice Ministry source told Israel Hayom this week that judges from Russia and China may support Israel in raising the bar for proof of genocide, mainly to make it harder to use it against them. In this case, the sentence is primarily language; The essence is found in other areas.
Judge Aharon Barak, Photo: UN Photo
South Africa's arguments
South Africa's claims against Israel are divided into two: actions carried out by Israel that may amount to genocide, and statements by senior Israeli officials that may also indicate intent. The element of the act and the element of intent are necessary for proving genocide, which is one of the most difficult offenses to prove in court. South African prosecutor Adila Hussein said that the intention component was almost impossible to find an evidentiary basis, but in Israel's case, she argued, it was a rare incident in which evidence of intent was abundant. "Israeli President Isaac Herzog even signed a shell fired at Gaza," she stressed.
Ambassador to the Netherlands and Minister of Justice. Part of the South African team,
With regard to the element of the act, the prosecution presented evidence, some of which is true, such as a brief warning given by residents of several neighborhoods in the Gaza Strip to leave their homes before an attack, the cutting off of water and electricity to Gaza for a certain time, or the dire humanitarian situation in Gaza, even if perhaps inevitable. These and other actions were approved by Israel's legal counsel. There is no dispute that any action in itself does not constitute an offence of genocide; The question is how the Court will relate to the backlog of actions. At this stage, the ICC should not decide whether Israel is committing genocide, unless there is such a real concern that justifies issuing an interim injunction to stop the war.
Exception to policy
Israel's participation in the process in The Hague is in fact a deviation from its longstanding policy. For example, in 2004 the ICJ issued an opinion stating that the separation barrier built along the Green Line contravenes UN conventions and violates Palestinian rights. Israel then refused to cooperate with the court. A similar case, albeit in a completely different tribunal, is Israel's refusal to cooperate with the UN commission of inquiry into Operation Protective Edge, which later gave rise to the Goldstone Report. Not long after the report's publication, committee chairman Richard Goldstone published an article acknowledging that the report's conclusions were wrong, but explaining that Israel's refusal to cooperate denied him the necessary information.
Supporters of Israel demand the release of the hostages, Photo: AP
So why did Israel cooperate with the ICC, even though the UN and its institutions are known to be severely biased against it? Apart from signing the Convention for the Prevention of Genocide, which she signed without imagining that it would ever be turned against her, there are two other reasons why it was decided to cooperate. First, the very high standard of proof to substantiate claims of genocide and the optimism in the Foreign and Justice Ministries that Israel might succeed in the process. Second, even if it had decided not to cooperate, Israel would find it very difficult to ignore an order that might be issued by the ICC to stop the fighting in Gaza, with sanctions for violations on its side. In 1955, Israel also sued Bulgaria in court for downing an El Al plane, which was rejected out of hand. In the same proceeding, Israel elected Supreme Court Justice David Goitein, who later became Israel's ambassador to South Africa.
Preparing for the future
This morning at 11:00 (Israel time), the Israeli defense team will appear and respond to South Africa's claims. The hearing will last about three hours, during which Prof. Malcolm Shaw, Deputy Attorney General Dr. Gil-Ad Noam and Foreign Ministry Attorney General Dr. Tal Becker will have to push back against the elements of intention and action.
With the participation of the families of the abductees: the solidarity march with Israel outside the ICC in The Hague | Ministry of Foreign Affairs
In contrast to the practice in Israel, the hearing is characterized by arguments' speeches without questions or difficulties on the part of the judges, so that the important and decisive stage is not in the courtroom, but in the discussion between the judges behind the scenes. Yuval Kaplinsky, former head of the International Department at the State Prosecutor's Office, explained: "Exactly at this stage, Justice Aharon Barak was chosen, in the hope that in these closed hearings he will present to his colleagues from his experience as Attorney General and Supreme Court Justice in Israel how Israel deals with complex decisions on issues of war, and especially how Israel, even in the legal field, deals with situations in which hitting legitimate targets of terrorist organizations endangers unarmed civilians."
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