Israel likely to ignore an ICJ order to stop its attack on Hamas, says military law expert

Israel would probably ignore an interim order by the International Court of Justice (ICJ) to stop its assault on Hamas in Gaza, the former head of the Israel Defense Forces’ international legal department has said. 

“I really hope that the court doesn’t give an interim order that would compel Israel to choose between abiding by a judicial order or defending itself,” said Pnina Sharvit Baruch. “And they might probably ignore the order,” she added.

Baruch is an advocate and a colonel in the Israeli reserves. She was head of the International Law Department of Israel’s Military Advocate General Unit from 2003 to 2009. She is now the senior researcher and head of the programme on law and national security at the Institute for National Security Studies.

She was giving an online briefing for the Jerusalem Press Club on Wednesday on the case which South Africa will argue before the International Court of Justice (ICJ) on Thursday that Israel is violating the 1948 Genocide Convention by trying to destroy part of the Palestinian population through its military assault on Gaza. 

Israel will answer SA’s charges on Friday. The court could then issue interim orders to Israel within weeks to stop its assault on Gaza, before delivering a final judgment, probably within years, on whether Israel has carried out genocide. 

Read more in Daily Maverick: How South Africa seeks an order to stop the carnage in Gaza and prevent a genocide

Baruch noted that in the past Israel had not defended itself against ICJ decisions on matters such as Israel’s West Bank wall. But those had been advisory opinions. 

This was different, as it was an authoritative case which derived from Israel’s accession to the Genocide Convention.

“And the whole idea that Israel is blamed for carrying out genocide under a convention which [the Jewish Polish lawyer] Raphael Lemkin was behind, which was derived from what was done to Jews, is so outrageous.” 

She added Israel believed it had a very good case. 

“So it chose to appear because even an idea that Israel is carrying out genocide is so preposterous and so offending. And even on the emotional level, it’s difficult for people in Israel to hear these kinds of accusations.” 

Baruch said if the ICJ issued a final judgment that Israel was carrying out genocide, that would be “devastating. And it would be a victory to Hamas and those who want to destroy the state of Israel.”

She said Israel was facing two levels of the campaign to destroy it. The one was the campaign by Hamas, its backer Iran and other proxies like Hezbollah, to physically destroy Israel. Israel was now facing a threat it had never faced before, which was “almost existential. We are afraid for our lives.”

But she said Israel was also facing another level of threat which was aimed not at criticising Israel, which was legitimate, but at destroying the idea of the State of Israel by destroying Israel’s legitimacy. 

She said this campaign had gained more traction during the current war and was linked increasingly to anti-Semitism. 

“And this procedure which we see from South Africa is part of this campaign, to delegitimise Israel by saying it is carrying out genocide … of showing that Israel is a country which has no right to exist.”

Read more in Daily Maverick: What Israel is likely to say in its defence at the International Court of Justice

Baruch said the idea of the legal campaign was to put pressure on Israel’s allies to say: “‘You cannot assist a country that is carrying out genocide.’ That would mean Israel would be left alone, isolated. And that would mean [Hamas] would be able to beat us on the ground.”

She said Hamas was not interested in a peaceful settlement of the dispute or ending Israel’s occupation of Palestine. “This is about Israel’s right to exist, which Hamas does not accept.”

She was asked if Israel would stop the war if the ICJ ordered that in its provisional measures, which are expected within weeks.

“If the order is ‘Stop carrying out genocide’, we would have no problem to comply with it because I don’t think we are carrying out genocide. So it’s really how the order would be worded. Israel has a lot of respect for the law.”

She said it would be more difficult if the court forced Israel to choose between defending itself and abiding by a court order.

“I really hope we don’t have to face this kind of dilemma. That the court doesn’t issue something that would put us into this dilemma. But if the order is generally to protect civilians, this is something we are trying to do anyway.”

If the order was more balanced by referring to Hamas that would make it easier for Israel to comply with, she said.

Baruch said Israel was concerned that the 15 ICJ judges might make their decisions on the basis of their countries’ political positions and not purely on legal grounds. 

Read more in Daily Maverick: Israel-Palestine War

She was asked to respond to South Africa’s accusations that several Israeli government officials had incited genocide with statements such as that by the defence minister immediately after the Hamas attack on Israel, calling for Israel to cut off water and electricity to Gaza. Or the statements from right-wing politicians calling for Palestine to be wiped out. 

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Baruch acknowledged that strong words were spoken in the wake of the Hamas attack. But she said that Israel had not cut off Gaza’s water and electricity and the calls for Palestine to be wiped out had come from parliamentary backbenchers.

According to the Gaza health ministry, more than 23,000 people have been killed in Gaza since 7 October during Israel’s assault. According to Israel’s revised figures, 1,139 people were killed during Hamas’s 7 October attack and around 240 taken hostage. DM