ICJ'S RULING IS NOT A WIN FOR PALESTINIANS IN GAZA

Spin doctors are trying their best to sell the International Court of Justice’s (ICJ) ruling as a win for Palestinians in Gaza. That is misleading at best, and dishonest at worst.

“Progressive” circles have ridiculously hailed South Africa as the “new leader of the Free World,” totally disregarding Pretoria’s long and well-documented record of defending dictators, war criminals and génocidaires.

In 2015, South Africa refused to arrest Omar al-Bashir, the longtime dictator of Sudan wanted for committing crimes against humanity and genocide in Darfur by the International Criminal Court, and extradite him to the Netherlands. It has also shamefully supported Russia’s illegal and unjustified invasion of Ukraine since 2022.

Bereft of self-awareness, Pretoria had the audacity to file an 84-page application against Israel at the ICJ. It requested an interim order for the IDF to immediately suspend its military operation in Gaza, alleging that Israel’s acts are genocidal in character because they intend to “destroy Palestinians.”

The ICJ confirmed that it has jurisdiction to hear Pretoria’s case. It also reasoned that at least some of the rights claimed by South Africa (ex: for Palestinians to be protected from acts of genocide) were plausible. The ensuing trial would likely extend over multiple years, long after Jerusalem accomplishes its strategic objectives and dismantles Hamas’ military capability and terrorist infrastructure in Gaza.

Some accomplished jurists, such as former Supreme Court Justice Rosalie Abella, have labeled this process as an abuse of the postwar legal order. Others, like Irwin Cotler, the former Minister of Justice and Attorney General of Canada, consider it an inversion of reality. Namely, because Hamas’ genocidal intentions have never been a secret.

Yet not all is doom and gloom for Israel.

The ICJ, in its near unanimous ruling, did not order an immediate ceasefire as South Africa requested. Far from it.

The IDF’s military operation against Hamas, the terrorist organization that invaded the Jewish State on October 7, massacred 1, 200 Israelis, kidnapped some 240 hostages, and has since indiscriminately fired thousands of rockets into Israel, will therefore continue.

Why? Because what has unfolded in Gaza since the October 7 terrorist attack against Israel is, above all, a war of self-defense against Hamas. Not a genocide to “destroy Palestinians.”

If the ICJ thought the purpose of Israel’s military operation in Gaza was to “destroy Palestinians,” the court would’ve acquiesced to South Africa’s request and ordered the IDF to immediately suspend its military operation, as the ICJ directed Russia to do following its illegal and unjustified full-scale invasion of Ukraine in 2022.

Like Moscow, Hamas, the aggressor, initiated the war against Israel on October 7. There is no legal or moral justification for the terrorist attack it perpetrated, nor for the Israelis it kidnapped. This trial, like the resulting death and destruction in Gaza, would’ve been avoided if Hamas had not invaded Israel. Period.

Those who have covered or experienced war know that “hell on earth” is the only way to describe it. The death toll in Gaza, now more than 25, 000 Palestinians according to the Hamas-run Ministry of Health, is heartbreaking. The scale of suffering and destruction is staggering. Hamas, the culprit, is to blame for all of it.

Put simply, war is one of the two principal tools of statecraft that state and non-state actors use to achieve their strategic objectives in international relations. The other is diplomacy (for instance, commerce, communication, or alliance building) – which has clearly failed in this instance.

To be clear: while genocide may happen in a war, wars themselves are not all genocidal. Genocide is a crime with two components: the criminal act and the genocidal intent.

None of the aforementioned facts, nor any graphic content, considered independently constitutes evidence that the crime of genocide is being committed. The accused (Israel) must intend to destroy the victims (Palestinians) for the sake of annihilating the group, not to achieve a legitimate military objective (dismantling Hamas’ terrorist infrastructure) in the context of a war. The latter is, legally speaking, a high standard to prove.

Moreover, uncharacteristically vague provisional measures were also indicated to Israel by the ICJ, likely to facilitate compliance with the court’s order. Among other things, Jerusalem must enable the flow of humanitarian assistance to Gaza and prevent acts of genocide from being committed against Palestinians. While it is already technically doing this, Israel has one month to submit a report on the measures it takes to fulfil the ICJ’s order.

The court did not grant Pretoria the ceasefire it sought. Hamas will not be saved from being dismantled by Israel. Civilians will not be accorded a respite from the war either. The fighting will likely continue until Hamas comes to its senses, stops using civilians as human shields, releases the Israeli hostages, lays down its weapons, and surrenders – or is defeated militarily.

Originally published by Toronto Sun on January 30, 2024.