Between The Hague and the High Court of Justice: the Legal Dimension (Hard Questions, Tough Answers- January 8, 2024)


Yossi Alpher is an independent security analyst. He is the former director of the Jaffee Center for Strategic Studies at Tel Aviv University, a former senior official with the Mossad, and a former IDF intelligence officer. Views and positions expressed here are those of the writer, and do not necessarily represent APN's views and policy positions.

Q. This week the International Court of Justice at The Hague will hear South Africa’s charge that Israel is committing genocide in the Gaza Strip. How serious is this accusation and what is Israel doing to counter it?

A. This is a serious accusation. It will be heard before a respected international judicial institution whose authority Israel subscribes to. The ICJ could, within weeks, impose on Israel a declarative interim order for a ceasefire in Gaza. Whether Israel complies with that order or not, it could be subject to considerable international diplomatic and economic punishment. If an interim order is issued, the actual accusations will be adjudicated over a period of four to six years.

South Africa argues that Israel is not taking action to punish inciters to genocide. It cites "indiscriminate use of force and forcible removal of inhabitants" from the Gaza Strip. It accuses Israel of crimes against humanity, war crimes, and genocide.

Israel is sending a legal team to The Hague to contest the accusations. In addition, a country that appears before the ICJ is entitled to be represented by a judge of its own in addition to the 15 who are elected by the United Nations. Israel is sending retired Supreme Court Chief Justice Aharon Barak.

At the heart of the case presented by South Africa are three contentions. First, a host of Israeli officials from the prime minister on down have since October 7 made statements that indeed, if taken at face value, incite to genocide. The South African petition quotes them all.

Prime Minister Netanyahu invoked Amalek, a biblical metaphor for genocidal intentions. Defense Minister Galant: “We’re fighting human animals and will act accordingly: . . . no electricity, no food, no water, no fuel.” Legacy Minister Amichai Eliahu: “drop an atom bomb on Gaza”. MK (Likud) Moshe Saada, “destroy all Gazans”. Intelligence Minister Gila Gamliel: “promote voluntary relocation of Palestinians from Gaza outside the Strip.” Former Shin Bet head, now agriculture minister, Avi Dichter: “Israel is carrying out in Gaza ‘Nakba 2023’” (Nakba, “catastrophe”, is the Arabic term for the events of 1948 that created the Palestinian diaspora).

A few well-known personalities not associated with the Netanyahu government have chimed in over the past 90 days. Major General (ret.) Giora Eiland, a popular critic of the Netanyahu government: “Israel has no alternative but to turn Gaza into a place that, temporarily or permanently, is uninhabitable.” Former Defense Minister Avigdor Liberman: “no one is innocent in Gaza”. Entertainers, too. Mizrachi pop fusion singer Eyal Golan: “Erase Gaza”.

The list goes on and on. What it documents is a national embarrassment for Israel and Israelis.

Q. A lot of the incendiary statements quoted in the 84-page South African brief were made by overwrought Israelis in the heat of anger at the events of October 7. They may reflect knee-jerk genocidal thoughts--but hardly genocidal intentions on the part of the State of Israel.

A. Every one of these statements was stupid. But none were embedded in operative orders to the Israel Defense Forces. With the exception of a few minor incendiary statements to the media by IDF officers that are cited by the South Africans, I know of absolutely no genocidal statements by IDF commanders--and none by the pilots whose bombing missions have caused a lot of the Gazan civilian casualties that are also cited by the South Africans.

Still, it might be easy to dismiss the sort of incitement noted by the South Africans as a momentary national lapse if I didn’t hear similar utterances repeatedly in my own normally centrist-leading suburb of Tel Aviv. “Kahane was right”, my barber whispers in my ear. “They’re all Hamas”, says the owner of the mom-and-pop store. Maybe October 7 was the trigger for these sentiments. But I fear we were on track even before then. Still, I doubt the charge of genocidal incitement will stick in The Hague.

Q. And those 22,000 (and counting!) dead in Gaza?

A. This is the second accusation the South Africans will air at The Hague: the Gaza death toll reflects genocidal intentions on Israel’s part.

Israel’s counsel at The Hague will stick to the laws of war, ominous as they appear in their Gaza iteration. Around 9,000 of the Gazan dead are Hamas fighters and terrorists: legitimate targets by any standard. The others were used by Hamas as human shields, particularly above and around Hamas’s tunnels. In some cases, the IDF warned civilians to evacuate and they refused. In other cases, their numbers fit into complex algorithms about how many civilian deaths are legitimate in targeting a terrorist enemy.

Israel Air Force pilots on their bombing runs in Gaza know those rules of war all too well. Remember, some of them led the campaign against the Netanyahu government’s ‘judicial reform’ scheme to downgrade Israel’s judicial branch of government, precisely because they feared that Israel would have to invoke the prestige of its courts in arguing at The Hague that Israel is capable of judging its own for war crimes.

Still, the Gaza Strip toll of death and suffering makes for grisly statistics. The South African brief presents a powerful case that the totality of Gazan economic and physical suffering is a humanitarian disaster. But it does not prove genocidal intent on the part of the State of Israel. I am particularly concerned lest the record ultimately show that all those bombings of tunnels with their gruesome civilian death toll simply did not work: all those 2,000 lb. bombs did not actually destroy enough terrorist tunnels to make a difference. At a minimum, this would reflect both poor intelligence and poor armament calculations on Israel’s part.

But those are not genocidal war crimes. They are just . . . war. Note, ironically, the exoneration of IAF pilots that is perversely implied by an accusation leveled by bloodthirsty Kahanist Minister of Settlements and National Missions Orit Strook that the pilots have had the audacity to refuse to bomb civilians!

Q. A third South African accusation holds that Israel is trying to expel the Palestinian population from the Gaza Strip . . .

A. Transfer of the Gazan population is fairly certainly the desire, or demand, of the extremist wing of the Netanyahu government led by Kahanist-messianic ministers Strook, Bezalel Smotrich and Itamar Ben Gvir. They actually dream of building Jewish settlements in an empty Gaza Strip. Smotrich: “If in Gaza there are one or two hundred thousand Arabs and not two million Arabs, the entire discussion of ‘the day after’ will be different.”

True, this is not Netanyahu government policy, and in any event Egypt would and should never agree to facilitate it by offering safe passage through its territory for ‘transferred’ Gazans. The Biden administration is dead set against any population transfer whatsoever. Yet note: Netanyahu has done nothing to fire or even silence his ‘transfer-happy’ ministers.

As Carnegie’s Nathan J. Brown tellingly states, “[calls for] the forced relocation of [Gaza’s] inhabitants may be heard by many Israelis as rhetorical excess. However, most Palestinians . . . understand them as a political action plan.” Indeed, there are persistent reports and rumors that Israel is making inquiries internationally concerning willingness to absorb Gazan evacuees.

Perhaps worse, the displacement by Israel of Gazans from their homes, most of which are now in ruins, fairly obviously suggests that when this war ends or even begins to end, there will be well over a million homeless Gazans in need of emergency housing and sustenance. In this sense, the facts on the ground alone are sufficient to support the fear that this will be the most telling accusation leveled at Israel at The Hague.

Q. That’s potentially bad news. On the other hand, last week’s Israel High Court of Justice decisions appear to rebuff Netanyahu government malign ‘judicial reform’ intentions . . .

A. Last week the High Court rendered two decisions that reject attempts by the Knesset with its 64-MK pro-Netanyahu majority to legislate restrictions on the judicial branch itself. The decisions concern whether the Court can invoke ‘reasonableness’ in reviewing legislation (it can) and whether a prime minister on trial for corruption has immunity from disqualification by the attorney general from dealing with judicial issues (the legislation cannot be retroactive; it can only become valid after the next election).

In passing, and perhaps of greater long-term importance, the High Court ruled that it is empowered to review and annul Basic Laws, which have constitutional status in Israel. Netanyahu government legislation has consistently abused the very concept of the Basic Law.

In other words, alongside the acute discomfort caused by the genocide accusations at The Hague, and against the backdrop of Netanyahu’s request that Aharon Barak represent Israel on the ICJ, last week also witnessed a victory for the rule of law in Israel. But note, in both cases the vote was decided by a margin of one (8-7, 6-5), reflecting the potential clout of a conservative High Court minority that sides with the government interpretation. If, in the months and years ahead, Netanyahu and Justice Minister Levin are allowed to prevail, Court vacancies will be filled with additional conservatives and the High Court could well rule differently in cases like these.

That, in turn, would contribute to the decline of democracy in Israel in general.

Q. Why is Netanyahu sending Aharon Barak to The Hague? Barak is the father of ‘judicial activism’ in Israel, the very approach that Netanyahu’s ‘judicial reform’ was intended to negate. Netanyahu has been highly critical of Barak; right-wingers who take their cue from Netanyahu have demonstrated violently against Barak.

A. Aharon Barak is Israel’s most respected jurist internationally. His judicial opinions on national security and terrorism issues are studied in universities worldwide. The 87-year old Barak is himself a genocide (the Holocaust) survivor. Netanyahu knows all this. That he could appoint Barak appears to indicate just how seriously Netanyahu takes the South African accusations at The Hague--and just how fake and flimsy Netanyahu perhaps knows his ‘judicial reform’ initiatives really are.

Q. Bottom line?

A. Aharon Barak is not the only (very welcome) link between The Hague deliberations and the High Court deliberations. Both ultimately turn, or will turn, on the perception--the world’s perception and Israel’s own self-perception--of Israel as a country governed by the rule of law and by international standards of the laws of war. In Israel itself, these standards have been attacked by Israeli fascists, Jewish messianists, non-democrats, and cynical opportunists like the prime minister himself.

Last week a jury of judges in Jerusalem ruled, by a slim margin, in favor of these laudable standards. At The Hague we shall shortly hear from an international jury. Its verdict could, if against Israel, cause considerable discomfort both at home and in the world.

Yet for the vast majority of Israelis, even allowing for excesses, horrendous losses and poorly defined war aims, the horrific events of October 7 make it seem that this is a just war.