This ICJ compromise means Israel will continue its honourable quest for justice

Unless the international judges address Hamas war crimes, it will deserve no respect


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)

January 26, 2024 16:34

Reading the decision of the International Court of Justice in the genocide case brought by South Africa against Israel is like listening to a self-righteous lecture by a law professor written in her ivory tower. Judge Joan Donoghue did the right thing by refusing to enjoin Israel from conducting its military operation against Hamas. Even if the injunction had been issued Israel would have justifiably ignored it. But the court gave Israel a yellow light to proceed, requiring it to report back in a month on its efforts to prevent its soldiers from committing genocide.

But Israel’s soldiers were not committing genocide. They were fighting in the same way that the United States and Great Britain fought urban warfare against terrorist groups. Israeli soldiers, who are among the most moral in the world, do not need to be lectured about not doing something they would never do.

A nation bent on genocide does not put its soldiers at risk by warning the other side about its intended military targets. Nor does it provide humanitarian corridors for the provision of food, medicine and other necessities of life. The reason there are so many civilian casualties in Gaza is that Hamas deliberately places its own civilians in harm's way by using them as human shields. Notwithstanding newspaper headlines, there have been fewer civilian deaths in Gaza, and a lower ratio of civilian to combatant causalities, than in any modern war in history.

An international community that remained relatively silent in the face of real genocides has no standing to lecture the nation whose people suffered from the worst genocide in world history. Israel should continue to do what it is now doing: attacking Hamas targets, killing Hamas leaders, destroying Hamas tunnels, preventing Hamas rockets from striking Israeli civilians and winning the war against terrorism. It is Hamas who should be lectured about its multiple war crimes: using hospitals, schools and mosques to protect its fighters, rockets and tunnels. But the ICJ did not order Hamas to do or stop doing anything.

The ICJ’s decision was written by one of its real judges — an independent jurist who does not take orders from the nation that appointed her. Other judges on the court are simply pawns in their countries foreign policy. It’s surprising therefore that this compromise decision, despite its lecturing tone, was rendered by a court that includes a Hezbollah-appointed judge from Lebanon.

Previous decisions on the court have been entirely political and deserving of no respect. This decision deserves the respect of a thoughtful law review article written by a distinguished professor of international law, but because of the makeup of the so-called court, it does not deserve the respect accorded independent judicial authorities.

Wearing robes does not turn politicians and diplomats into judges. To be a real judge, a lawyer must be completely independent of the government that appointed her or him. The ICJ can never be a real court, as long as the appointment and removal process of its judges remain in the hands of individual countries. The International Criminal Court is somewhat better in this regard, because its judges are not answerable — at least in theory — to their countries of origin. But in practice, many of its judges are in fact beholden to their countries.

International law, and especially the law of war, is largely an academic enterprise. Enforced mechanisms are entirely political and not deserving of the respect accorded real judges.

So let Israel continue in its honourable quest for justice regarding the past atrocities committed by Hamas, and the prevention of future atrocities promised by Hamas leaders. When Israel next reports to the court in 30 days, hopefully the war will be winding down and fewer civilians will be killed. Already the number of civilian deaths has decreased dramatically, but the best way to reduce any further would be for the international community to enforce international law that prohibits the use by Hamas of human shields. Unless the ICJ addresses the Hamas war crimes, it will deserve no respect.

January 26, 2024 16:34

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