MIDDLE EAST CRISIS
Israel likely to ignore an ICJ order to stop its attack on Hamas, says military law expert
Pnina Sharvit Baruch, the former head of the Israel Defense Forces’ international legal department, says SA’s accusation of genocide is designed to delegitimise and therefore destroy Israel.
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.
Pnina Sharvit Baruch. (Photo: IJL)
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.”
Burning debris partially blocks a road as the Israel Defense Forces conduct a raid for a second day at a refugee camp near the West Bank city of Jenin on 13 December 2023. The Palestinian health ministry said eight Palestinians were killed during the raid on 12 December. (Photo: EPA-EFE / Alaa Badarneh)
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.”
Two-hundred chairs with portraits of hostages kidnapped by Hamas militants during the 7 October attacks were placed in front of the United Nations European headquarters in Geneva, Switzerland, on 26 October 2023. (Photo: EPA-EFE / Martial Trezzini)
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.
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
Any finding that does not equally address and find on Hamas atrocities, genocidal acts and their mandate for genocide will be a complete farce, it will also render the ICJ toothless, a joke and irrelevant in international law
Ben we seem to get mixed up some how in the allegations submitted to ICJ the Hamas terror acts are condemned in strongest terms the issue here is genocide and ethnic cleansing of Palestinians, this is not about attacking a Hamas base then Palestinians passing by gets killed, this is bombing refugee camps, schools, churches which are well known areas of civilians shelter during conflicts under international laws mostly which Israel is a signatory, we have discussed the 9 genocidal statements and the actions following those statements to the letter, they cannot be argued as expressions after that, America is behind closed doors distancing itself from those statements and Israel actions in the occupied areas, the only way out for Israel is to show tangible proof that all the 13 million Palestinians are aligned to Hamas objectives and have all contributed to the October 7 massacre
Well said Kenneth! Israel defending itself against a terrorist organization simply does not have to include killing many thousands of innocent civilians. That responsibility is solely on Israel and is not dependent on the condemnation of the (very clearly) despicable acts that were carried out by Hamas. Israel needs to own it and comply with its obligations under international law.
Ben Harper keeps – illegitimately so – trying to defend a disproportionate response by the state of Israel that translates into collective punishment. Kind of like: if your neighbor attacks you then you will put his entire family in the morgue.
Define disproportionate. In WW2, 2 to 3 million German civilians were killed in the war whereas 70,000 British civilians were killed in the same period. Were the Allies wrong? Was their actions disproportionate?
Hamas is the chosen government of the Gaza, elected by the Palestinian people. The very same PALESTINIAN people rejoiced and celebrated the massacre Hamas unleashed on the people of Israel.
You have NO concept of what the response to a massacre of your people is, particularly a de-facto state executed massacre. Pacifism will get you nowhere in conflicts like these so yes, Israel’s response IS appropriate, p[particularly as Hamas has broken every single ceasefire with Israel and has openly stated time and time again their intent is to rid the world of Israel and it’s people
Let me ask you one simple question. Why are NONE of the neighbouring Arab states taking in the Palestinian people? Gaza is not surrounded by Israel, it has a major border with Egypt to the South and the Mediterranean Sea to the West . Why are they not giving the Palestinian people relief and refuge? Why are all these supporters and sympathizers happy to leave them all right where they are? I’ll tell you why, the neighbouring Arab states DO NOT WANT TO ADMIT TERRORISTS TO THEIR COUNTRIES
Oh Kenneth, pity comprehension is something foreign to you
Any school, hospital et all that is used as a military base or for military purposes is no longer protected and is a legitimate target. As is happening. You know, that part of it that you guys deny.
Exactly, a fact the blind supporters are ignorant of or chose to ignore.
Israel – do what you have to do in order to survive, exist and defeat the dark forces of evil and barbarism that are hell-bent on your destruction. One only has to see from where the hysterics, vitriol and shrill is coming from to know that you are dealing with the most hypocritical, false, warped, willfully blind, biased and selective in their condemnation. SA is a prime example of the deceit, immorality, dishonesty and duplicity involved – they point fingers at you whilst conveniently ignoring all other “genocides” that doesn’t suit them to acknowledge, let alone oppose. The whole world wants peace and a cessation of hostilities etc. but it has to be fair and guarantee the state of Israel – not my way or the highway as these murderers want.
Did you ask ChatGPT for a series of emotional adjectives and fear-inducing nouns to make your case? That doesn’t change the objective facts about what has happened.
I rather think you may be missing a few fairly significant facts as well. I suspect we will all get some surprises for our assumptions once facts start being properly tested – for sure and certain, we do not have a decent picture of whats going on. So I am actually quite interested in what comes out of this…I really dont think the SA case will be proven at all.
Of course Israel is going to ignore any ICJ order, in the same way that South Africa ignored the ICJ order to arrest Al-Bashir in June 2015.
It’s ironic that South Africa is now bleating to the ICJ.
Small correction, that was the ICC, not the ICJ. Although the ANC was wrong there, much like they are wrong most of the time. They are just not wrong in this case.
And at least our courts were independent enough to tell our government that they were wrong in the Bashir matter and ought to have agreed in accordance with the ICC’s order. I doubt the Israeli courts would do that.
Sorry @ Graeme J..not the ICJ, but the ICC two different courts
Of course they’ll ignore it. Any notion of them electing to absorb endless rocket attacks and occasional terrorist attacks on their population is delusional.
I am watching a senate sitting in America a resolution is being proposed to investigate if America has been complicit in perpetuating genocide in Palestine, submissions include that American weapons are being used, international laws disregarded, reckless genocidal statements, humanitarian essentials blockages, on their stats 70% of houses have been destroyed, 85% of the population sleeping in the open,acute starvation on the entire Gaza population, more than 100 UN workers killed the worst in any war, more than 100 journalists killed, also what stands out is that all the weapons were sent by America and this resolution aims to investigate if they have been used to commit war crimes, from my knowledge of American history this is where they create an off ramp, Senator Ben from Vermont has stated clearly that Israel has every right to defend it’s self against Hamas but due to it’s policies they have every mandate to protect Palestinians and international organisation personnel and facilities, unlike us who sit here and emotionally throw biases and mockery of the catastrophic situation chickens are coming home to roost elsewhere in the space that matters
Yeah – those “stats” are pretty much a complete fiction. 70% of their housing destroyed? Really? And you seriously believe that?
Why are those stats complete fiction? All you have to do is look at published images from multiple sources all over the world to get an idea of the level of destruction.
You’re right. Accuracy is important. According to OCHA, over 355,000 homes equivalent to more than 60 per cent of Gaza’s housing stock in Gaza has been damaged or destroyed. This includes at least 69 000 destroyed and at least 290 000 damaged. That’s significantly less than 70% destroyed. It nevertheless remains catastrophic, no? But wait, there’s more. 2,2 million at imminent risk of famine. 1,9 million of of the 2,3 million people internally displaced. And so on and so forth. This sounds like an unmitigated disaster. Nakba 2.0 as it were.
Yawn
Ben you ask that both sides are presented to the ICJ but whenever a view is expressed that you do not agree with your response is to belittle that view.
When fantasy, imagined and manufactured “facts and figures” are presented then the response is appropriate and called for
@Kenneth, I am sure people will take your opinions much more seriously if you do not present them buried in incoherent walls of text.
Israel’s victim mentality is absolutely astounding!
Hahahahaha
Is South Africa in charge of ‘Genocide’ happening all over the world or only what suits them and since when this new approach start seeing that this is not the first case of Genocide the world has seen.
Of course they will ignore it.