The ICJ ruling has forever changed how it is to be a Jew

The judgment has been widely misunderstood, but it’s futile to argue that point. We will now be seen as a ‘perpetrator’ people rather than as a ‘victim’ people — and not just by cranks


President Joan Donoghue (C), and other judges in the International Court of Justice (ICJ) take their seats prior to the hearing on the genocide case against Israel, brought by South Africa, in The Hague on January 11, 2024. South Africa hopes that a landmark "genocide" case against Israel at the UN's top court on Januray 11, will seek to compel Israel to halt its military operations in Gaza, where more than 23,000 Palestinians have been killed according to the Hamas-run Gaza health ministry. (Photo by Remko de Waal / ANP / AFP) / Netherlands OUT (Photo by REMKO DE WAAL/ANP/AFP via Getty Images)

February 21, 2024 13:06

The International Court of Justice was hearing another case against Israel this week, but the truth is, I’m not over the last one. The court’s interim ruling in the genocide case brought by South Africa was delivered in the Hague a month ago – and I fear we’ve not even begun to grasp what it will mean for us. I don’t mean Israel. I mean us.

That’s not to say there’s not been a strong Jewish reaction to the judgment, because there has: anger mostly. There’s anger at the way the ruling was reported. The court made clear from the start that it would be offering no immediate verdict on the substance of the charge South Africa’s claim that Israel’s war against Hamas constitutes a genocide against the people of Gaza. Indeed, judging by the pace of its previous deliberations, that decision won’t come for several years. The ICJ did, however, offer an interim judgment that it was at least “plausible” that the Palestinians of Gaza required protection from acts of genocide. That was not so much a verdict on what has already happened as an assessment of the potential risk to come — an assessment which, to be clear, is grave and damning enough. But that distinction got lost in the stampede of commentators, especially on social media, rushing to declare that the ICJ had decided there was “plausible” evidence of genocide. It’s no use trying to argue: if you do, you’ll be swiftly dismissed as, at best, a hair-splitting pedant or an apologist for genocide.

There’s anger too that most discussion skims swiftly over the fact that South Africa did not win on the most important of the “provisional measures” it sought: the ICJ did not demand that Israel stop its war against Hamas, as it did in the case of Russia and Ukraine. Some Israeli scholars saw that as at least partial acceptance of Israel’s core legal argument: that it is not engaged in genocide but rather self-defence, following the massacres of October 7. Put another way, if the court really did believe Israel was committing genocide, is it conceivable it would not have ordered Israel to stop? But that point too has got lost.

Defenders of Israel are angry too over the way the ICJ seemed to have reached its conclusions. To prove genocide, you need to prove intent: there has to be a deliberate attempt to destroy a people “in whole or in part.” In that context, the court’s ruling cited the words of both Israel’s defence minister Yoav Gallant who, when announcing a “complete siege” of Gaza, spoke of “human animals”, and the country’s president, Isaac Herzog, who, in a press conference, spoke of “an entire nation out there that is responsible”. Both remarks were offered as evidence of genocidal intent. But ​Atlantic writer Yair Rosenberg, a Hebrew speaker, went back to the original record of Gallant’s speech, only to find that the full text tells a very different story. Even in the quotation that appears in the ruling, it’s clear that Gallant was referring specifically to Hamas when he said, for example, that “we will eliminate everything”. The trouble was, in the first English-language translation of those remarks, by the Associated Press, the reference to Hamas was left out — and the inaccurate, incomplete version developed a life of its own, travelling all the way to the Hague.

As for Herzog, he clarified in that very same press conference that his remarks did not mean he regarded Gazan civilians as legitimate targets. That reading was put to him by Matt Frei of Channel 4 News, and Herzog rejected it. But that crucial bit of context was missing in the ICJ judgment. That makes some furious at the South African lawyers for cutting corners, others furious at the judges for allowing them to get away with it and still others furious at Israel’s legal team for not calling it out in sufficient detail when they had the chance.

I feel some anger of my own, not least at the cynicism of a South African government that poses as the champion of the oppressed in Gaza even as it gets cosy with Vladimir Putin. Last week a delegation from South Africa’s ruling party attended the grandly named Forum of Supporters of the Struggle against Modern Day Practices of Neocolonialism — a conference against modern imperialism held in…Moscow.

So I’m angry at the cynicism of those who brought this case, but furious too at those who opened the door to it. Those extremists in, or around the edges of, the Israeli government who by talking so recklessly about flattening or nuking Gaza, of emptying it of its people, of resettling it, allowed the claim of genocidal intent to gain traction. All those ultra-nationalists and semi-fascists pandering to their base with ever more lurid fantasies — as if the world isn't listening and doesn't have Google Translate.

I include among them those senior politicians — from Benjamin Netanyahu downwards — who used bloodcurdling language to show off their supposed strength, when instead they needed to clarify in their every utterance that their war was with Hamas alone and not the people of Gaza. That rhetoric has cost Israel dear, as have Israel’s early decisions on humanitarian aid, restricting it in a way that deprived too many ordinary Gazans of the essentials of life. Incitement and aid: it is not a coincidence that even Aharon Barak, Israel’s ad hoc judge on the ICJ, voted with the majority on those two issues.

So there is anger at all those who brought Israel to this moment. But also a deep sadness. At the unbearable, seemingly unending loss of life, most of all. And because, I suspect, something very profound has shifted with even this interim ICJ judgment. Now Israel and genocide can be mentioned in the same sentence, not just by cranks but with the apparent, even if misunderstood, blessing of the world’s highest court. That changes how it is to be a Jew in the world.

To put it starkly, since the end of the Holocaust, which prompted the genocide convention, we have been seen as a “victim people”. Now, I fear, we will be seen, in more places than before, as a “perpetrator people”.

Both terms may be - may always have been - superficial or wrong, but the effect of the shift from one category to the other will be significant. It will actually change what it is like to be us.

February 21, 2024 13:06

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