On Friday, the International Court of Justice in the Hague, after two days of proceedings, made a provisional ruling on the case that has been brought against Israel by South Africa accusing it of “genocide” against the Gazan people. The ICJ concluded that it cannot ascertain whether any ‘genocide’ has occurred, that these are just provisional rulings, but that “prima facia” it has jurisdiction to entertain that there is “plausibility to the ICJ’s claims”. It must furnish the ICJ with documents regarding “genocide”. There is an implicit shadow of guilt here.
On the positive side, it did not call for an immediate ceasefire, which would have handed Hamas and its South African defenders a clear and decisive victory.
The Court hardly took into account that on October 7th, some of the most barbaric atrocities known to humankind were committed by Hamas, including the brutal decapitation and burning of babies in front of their parents’ eyes as they were tied to their chairs and the massive rape and dastardly physical mutilation of women, the murdering rampage of 1200 human beings, and the kidnapping of 240 others.
Children as young as little red-headed Kfar Bibas, a 9-month-old baby who had just learned to crawl, might—or might not– have lived to see his first birthday in dark captivity—if he is alive. His father was told by Hamas that his wife, Shiri, Kfar, and their 4-year-old son, Ariel, are all dead—if we can believe Hamas
The terrorist organization, Hamas, was not put on trial for its dastardly acts. The state of Israel, which has a legal and moral obligation to protect its citizens, was.
For the 240 abducted hostages, with some 136 remaining, torture is continuing today in Hamas’ vast network of terror tunnels. The nightmarish hell continues every single day.
It is essential to remember that Jews were brutally slaughtered simply because they were Jews. Or Thai, Bedouin, or Arabs—simply because they reside in the state of the Jews.
This is what the term “genocide” means. What we witnessed on October 7th was the most sadistic and savage attempt to eliminate every living man, woman, and child from the state of Israel. The plan book was found and translated from Farsi into Arabic. left behind by some Hamas terrorists, written by Qassam Soleimani, the Iranian mastermind assassinated by the U.S. on January 3, 2020, whose blueprint was to create an Islamic caliphate throughout the Middle East. The Iranian plan was to create a “ring of fire” around Israel, suffocating the very existence of the Jewish state. The plan on that Black Saturday was to reach Tel Aviv, Jerusalem, and Haifa and eliminate all 9 and a half million residents of the state of Israel, be they Jew, Christian, or Muslim.
If this is not the very definition of genocide, what is?
Yet, South Africa has brought Israel to the International Court of Justice in the Hague on the charge of genocide, after passing a vote in the United Nations. According to Freedom only 84 of the 192 member nations are ranked as “free societies”. This is laced with irony on so many levels.
The very term “genocide” was first coined by a Polish-Jewish lawyer, Raphael Lemkin, who fled the Nazis during World War II to establish asylum in the United States. The horrors of the Nazi atrocities were too vast to be encapsulated in any of the then-existent international jurisprudence during the time of the Nuremberg trials, which was a point of considerable frustration for him. He then came up with the term “genos” (meaning race or tribe), and “cide” (meaning killing), and worked vociferously for an international convention against genocide. In his perspective, this term would be used to “prevent future Hitlers.”
In his 1944 book, “Axis Rule in Occupied Europe”, he defined the term as intended “to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups, themselves.”
The irony is that the plan to annihilate the Jewish state is, in fact, a coordinated plan, coming from all the proxies of the Islamic Republic of Iran, Hamas, Hezbollah, and the Houthis. They used land, sea, and air to traverse the borers, blowing out the cameras, and using paragliders, stolen Israeli cars, and army vehicles.
And of course, the deepest irony is that the modern state of Israel was very much established after the horrors of the genocide of the Holocaust.
Israel never asked for this war. This is not an attempt to wipe out the Palestinian people. It is an attempt to wipe out Hamas, which went to war, in a coordinated effort to eliminate the Jewish state.
One has to understand the basic concept that war is hell. During the US War in Vietnam, approximately 2 to 3 million people had been killed. The US involvement in the war in Vietnam prolonged for about 20 years. 20 million people were killed during World War I, and approximately 70 million perished during World War II.
And, although the threats were great for Western civilization, these were, nonetheless remote wars for the United States. No one was pressing on our borders trying to eliminate us, as the Iranian terror proxies have been attempting to do to Israel.
After an illuminating discussion with Professor Amichai Cohen, who is an expert in international law, and the law of armed conflict, there are three pillars upon which the term “genocide” sits: 1.) precaution 2.) distinction, and 3.) proportionality.
“Precaution” has to do with informing the civilian population of an impending military operation. It involves the measures that the IDF has taken, such as leafletting the homes of Palestinians, “knocking on the roof”, firing warning shots on the building, or broadcasting their intent from a minaret as a means of informing them.
“Distinction” in international law means distinguishing between an objective military target and the civilian population. As Professor Cohen puts it if a Hamas mastermind inserts himself in the middle of a mass of Gazans, it is tragic and unfortunate, but he is a legitimate target. Unfortunately, according to Professor Cohen, Hamas has consistently used its own population of Gaza as “one massive human shield”, inserting themselves among the Gazan people, shaving their beards, fleeing south with the refugees, and hiding within and beneath mosques, hospitals, schools, and homes, sometimes in its underground system of terror tunnels.
The idea of “proportionality” in the laws of armed conflict is one that is most widely misunderstood. It does not mean that because 900 women have been sexually abused and tortured, the IDF must abuse and torture 900 Palestinian women. It means the legitimate use of force as a means of self-defense.
In short, if a series of proxy forces amass to eliminate your very existence, according to the laws of armed conflict, one is not only allowed to but has an obligation to protect the civilian population of one’s country, as enshrined in Article 51 of the UN Charter.
The people of Gaza freely went to the polls in 2006 and elected Hamas. One candidate, Umm Nidal, ran showing a video of her son, Mohamad Farhat getting ready to become a suicide bomber. He killed five Jews and wounded 23 others. Said Ms. Nidal, “I wish I had 100 boys like Mohamad.”
Yet, 15 of the 17 members of the ICJ voted in favor of all of the rulings.
As Aldous Huxley once said, “Never have so many been manipulated so much by so few.”
Sarah N. Stern is Founder and President of the Endowment Truth, EMET, a foreign policy think tank and policy institute specializing in the Middle East.
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