At Int'l Court of Justice Hearing, Israel Presents Robust Defense Despite Half-wit Politicians. By Alon Pinkas

By Alon Pinkas

The genocide case at the Hague was not triggered by a disproportionate military response or the high number of Palestinian casualties. It is the direct result of an Israeli political trait: reckless and incendiary verbosity, which Prime Minister Benjamin Netanyahu condoned. He even added some gems of his own

It was an uncalled for, sad and bad day for Israel at the International Court of Justice in the Hague on Friday.

The Israeli legal team presented a politically robust and contextual framing of the war, and a legally credible and solid line of defense. They provided the settings of how the war evolved, challenged the veracity and accuracy of the data presented to the world court by South Africa and, most importantly, refuted the contention of "intent to commit genocide."

Malcolm Shaw, the British jurist leading the Israeli defense, argued that Israel did not have the "special intent" needed to commit the crime of genocide and that the South African case presented only half of the story. In fact, he said, the United Nations' top court lacks jurisdiction over the Gaza war – something the panel of judges will have to respond to.

Unfortunately, the whole process, which might take months, if not years, could and should have been avoided. Israel finds itself needing to explain, reason and convince the world court that a patently just war of self-defense, following a savage, murderous and inhuman attack by Hamas terrorists, did not lead to genocide.

The frivolous application to the International Court of Justice, hypocritically and falsely contending that genocide is or could be taking place, was not triggered by a disproportionate military response, nor by alleged atrocities, nor by the high number of Palestinian casualties.

Instead, it was the direct result of an Israeli political trait: reckless and incendiary verbosity. A collection of misfits masquerading as the government casually spewed out moronic one-liners: nuke Gaza, burn Gaza, flatten Gaza, erase Gaza, cleanse Gaza, eliminate Gaza, displace Gazans – all of which found their way into the South African application that the world court heard on Thursday.

Most these idiocies could have been muzzled had Prime Minister Benjamin Netanyahu demanded that they stop. Instead, he condoned them and even contributed some biblical gems of his own about remembering Amalek.

The application – an indictment of sorts – could have been avoided or at least mitigated had Israel come forth with plans and ideas in areas such as humanitarian aid and safeguarding noncombatant Gazans. Instead, incendiary remarks reigned, with ministers expertly explaining that there are no "uninvolved" or "innocent" Gazans.

Predictably, Netanyahu is now leading the chorus chanting "The world hates us" and actually feels vindicated. Israel faces enough real enemies, real detractors, and real criticism for the government itself to go on a rhetorical pyromania spree. But this is what they do and here we are in the Hague, whining about a hypocritical world.

The genocide accusation will take a very long time to deliberate, and it is doubtful that the key component – intent – can be proven. It remains to be seen whether the world court, after hearing both sides, will issue interim measures. But South Africa's case may well succeed in placing Israel in the murky gray zone between self-defense, excessive use of force and possibly entertaining ideas of genocide. South Africa's lawyers argued that the Israel Defense Forces listened to and heeded the politicians' statements, taking them literally.

Whatever the United Nations' top court decides – which of course matters greatly – the emerging impression in world public opinion will be negative. In a way, this is a legal reversal of the principle of "reasonable doubt": not that there is reasonable doubt that Israel committed or intends to commit genocide, but that there is reasonable doubt that it didn't. This obviously is a public perception and matter of opinion, not a legal one.

Back to the issue of jurisdiction, as the world court, the primary duty the International Court of Justice is entrusted with, is resolving disputes between countries, mostly settling maritime and land borders.

While the International Criminal Court (also in the Hague) prosecutes individuals, the world court deals with countries or recognized international organizations. Both the plaintiff (in this case, South Africa) and the defendant (Israel) have to consent to its jurisdiction and accept its ruling with no appeal recourse. Judgment is final and the panel of judges' decision need not be unanimous.

When a case of alleged genocide is brought, the court addresses the "interpretation, application or fulfillment of the convention," and the threshold must be proven "intent."

This is a critical issue, since – however cruel and inhumane it is to say so – the number of killed is immaterial in respect to the accusation of genocide. The bombings of Dresden or Tokyo, or even the nuclear bombs dropped on Hiroshima and Nagasaki in 1945, are horrendous in terms of the casualties, but arguably do not necessarily constitute genocide as intent can't be proven.

Genocide is applied and prosecuted differently by the two courts in the Hague. The world court considers whether a state committed genocide under 1948's Convention on the Prevention and Punishment of the Crime of Genocide. This defines it as "acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group."

These acts include five criteria:

1. Killing members of the group.

2. Causing serious bodily or mental harm to members of the group.

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

4. Imposing measures intended to prevent births within the group.

5. Forcibly transferring children of the group to another group.

Another point relevant to Israel's case is that when an accusation of genocide is presented, the world court cannot consider other seemingly pertinent questions such as the legality of an invasion or whether war crimes have been committed. This is the International Criminal Court's jurisdiction. While the definition of genocide is identical in both courts, the latter can investigate atrocities that do not meet the threshold of genocide. This court, therefore, has a wider spectrum of personal crimes it can investigate.

When Malcolm Shaw eloquently pleaded that the world court needs to consider the Israel cabinet's decisions rather than random statements by politicians who are not decision-makers when deliberating "intent," you couldn't escape the thought that a better line of defense might have been to plead insanity.