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Interviewer: Good morning, everyone, and welcome to today’s EMET webinar. Today’s webinar features international law expert, Avi Bell. Avi will discuss the international community’s use of lawfare against Israel. Currently, Israel is fighting an existential battle against Hamas. At some point soon, this battle will likely expand to include Hezbollah in the North. Meanwhile, pro-Hamas protesters across the US, Europe, the Middle East, are accusing Israel of genocide and crimes against humanity. It seems Orwellian to watch world leaders and international organizations demonize Israel while supporting the barbaric terrorists who committed actual war crimes. These terrorists had every intent of committing a true genocide against Israel’s Jewish population. We will delve into the reaction of the international courts with Professor Bell for what I know will be a very insightful and informative discussion.

We appreciate everyone’s support for the work that we do here at EMET. These are very perilous times and our work is more important than ever. So, please consider making a donation to EMET or even sponsoring one of our webinars. As always, this webinar will be recorded and available for future viewing. If you have any questions for Professor Bell, please feel free to place them in the Q&A section at the bottom of your screen. I will try to address as many questions as possible later in the program.

Professor Avi Bell is an Israeli professor of law at the University of San Diego School of Law and at Bar-Ilan University’s Faculty of Law. He received his BA and JD from the University of Chicago and his SJD from Harvard. He interned in the Office of Israeli Supreme Court Judge, Mishael Cheshin. He frequently writes about the Arab-Israeli conflict and I urge you all to follow his important work. Welcome, Avi, and thank you so much for joining us this morning.

Avi Bell: Thank you. Pleasure to be here.

Interviewer: Before we get into the specifics of the various international legal proceedings against Israel, I think it would be helpful for you to explain the difference between the International Court of Justice (ICJ) and the International Criminal Court (ICC). From where do they derive their power and their respective jurisdictions? What is the impact of their judgements, and how can they be enforced? Israel and the United States have not signed the statute providing the ICC with territorial jurisdiction. Given this, please explain how the ICC can claim to have jurisdiction over Israel and its leaders?

Avi: Sure. In order to do that, let me take a step back. First, we should understand something more general about international law. International law is different from regular law. International law refers to agreements between states and is not really law but more like a contract between signers. If you have a rule agreed upon by some states and not others, then it binds only the states party to the agreement. International law is also different from regular law in that it is not a lawmaking, executive or judicial function. It does not have access to traditional bodies and institutions like police, jails and courts of law.

The ICJ is an institution that was created about a hundred years ago. It was originally a court of arbitration and then it graduated into a UN court. Its name and functions changed a little bit. Today the ICJ is a UN court and sits in the Hague. The jurisdiction of the ICJ is established by consent. This means the ICJ can only hear a contentious case if all involved parties agree to the court’s jurisdiction. Parties generally provide their agreement by writing in a document that they submit to the ICJ or by signing a treaty agreeing to all cases that the ICJ chooses to hear. Alternatively, they can agree to the court’s jurisdiction on a case by case, issue by issue basis. In recent years, the ICJ has tried to expand its jurisdiction by picking out clauses in treaties that give the ICJ jurisdiction to hear cases concerning those treaties. Then it claims that all parties have implicitly consented to the ICJ’s authority. This argument is illustrated in the South Africa versus Israel case. In this case, the claim that the ICJ has jurisdiction comes from both South Africa and Israel being party to the Genocide Convention. The Genocide Convention gives the court jurisdiction over disputes in the interpretation and application of that treaty and so it is assumed both countries consented to the ICJ’s jurisdiction. Remember, like almost everything else in international law, the ICJ does not have general jurisdiction. Its authority comes from consent. In this case, they found a hook on which to hang Israel’s consent.

The ICC also sits in the Hague. It was created much later creation than the ICJ and is roughly 22 years old at this point. The ICC is a criminal court which does not deal with disputes between states. Rather, a prosecutor sits in the Hague next to the court and files charges against individuals. It has a limited jurisdiction because it is an international institution. It is only supposed to have jurisdiction over crimes listed in the Rome Statute, the treaty that created the court. The Rome Statute has authority over alleged crimes carried out by individuals who are nationals of state parties, or on the territory of state parties.

Israel is not a state party to the Rome Statute. Therefore, there is a question of how the ICC can claim any authority over Israelis. Jurisdiction over Israelis is something the ICC and PLO cooked up together over a number of years. They have cooked up their jurisdiction over the state of Palestine. They claim that Israelis are committing crimes on the territory of the state of Palestine and therefore the court has authority in this case.

Interviewer: Thank you. You provided a lot of information for us to absorb and we will talk more about the state of Palestine later in the program. In January, your colleague Eugene Kantorovich called the hearings at the Hague, “a judicial October 7th, a completely unjustified surprise attack.”

As you mentioned, South Africa brought a case to the Hague accusing Israel of committing genocide. At the end of May, the ICJ issued a ruling on this. They ordered Israel to immediately halt its military operation in Rafah. There are many problems with this ruling, including the fact that the court has no jurisdiction over Hamas. We do not hear any ridiculous orders from the court restraining the real violators of international law and those actually committing human rights abuses. This order was also the most recent of several from the ICJ. It appears the ICJ is basically micromanaging Israel’s handling of the war.

So, is Israel currently violating the court order by continuing its operations in Rafah? What does all of this mean in the long run? It does seem like this order is more like a temporary injunction or a restraining order rather than a full investigation. We know the final conclusions on whether Israel is in fact committing genocide in Gaza may not be handed down for years.

Avi: There is a lot in this question and I will unpack it bit by bit. I almost always agree with everything that Eugene says, but I have to disagree with him this time. I do not think there is anything surprising about these judicial attacks. They are not surprise attacks. What we are seeing is part of an ongoing attack and perversion of justice against Israel at both the ICJ and the ICC. Before the October 7th Hamas invasion of Israel, the ICJ already had two ongoing proceedings against Israel. One of them was an advisory opinion and not a formal case. The General Assembly had asked the ICJ to rule that Israel’s presence in any part of East Jerusalem, the West Bank or the Gaza Strip is unlawful according to international law. They argued Israel should be punished as a result. Of course, everyone understands that when the General Assembly asks for a specific opinion, that is exactly what the ICJ will give. The other ongoing case pending before the ICJ is dormant right now, but it will be revived whenever the ICJ deems it convenient. This case has been brought to the court by the PLO calling itself the state of Palestine. The case is against the United States for locating its embassy in the city of Jerusalem, Israel’s capital city. It is basically a PLO argument that Israel has no claim to any of Jerusalem. It is a preposterous case, but that does not make a difference to the ICJ. So, those two cases were already ongoing when the South Africans brought their case before the court. There will be many more.

The way you phrased the question, made it sound like you think there is a good argument for the ICJ’s jurisdiction over the case. I am not certain that is true. As I mentioned, the ICJ’s claim of jurisdiction is based on its interpretation of the Genocide Convention. It asserts there is a genuine dispute between South Africa and Israel regarding the interpretation and application of the genocide convention. I do think there is a difference in the way the two countries view genocide. I think it is fairly clear Hamas is violating the genocide convention. Hamas leaders, Hamas fighters, individuals, terrorists and collaborators are all violating the genocide convention.

South Africa is also violating the Genocide Convention because it is rendering assistance willingly and knowingly to Hamas. That is something to talk about. However, Israel has not made that claim in the ICJ and is unlikely to do so. This is because the ICJ is not a forum willing to address wrongdoing against Jews. As such, it is not going to happen and there is no genuine dispute over the Genocide Convention. The court has not even considered the question of jurisdiction yet. The world is observing preliminary jockeying about whether the court’s preliminary orders will be temporary restraining orders or not. This is before the court even decides whether it has jurisdiction. There is a reasonable chance the court would ultimately decide it does not have any jurisdiction.

I do not think that is the most likely outcome. I think a more likely outcome is that they cannot prove Israel is committing a genocide based on the merits of the case. However, the ICJ may prefer to issue a finding that they do not have jurisdiction over the case rather than declare that Israel is not guilty of genocide. That outcome is plausible. All the ICJ is doing right now is playing South Africa/Hamas’s game of creating a silly, thoroughly implausible jurisdictional hook in order to issue orders. It is worth pointing out that we should not take the interim orders of the ICJ so seriously. The ICJ’s order is not like a real temporary restraining order issued in a court in the United States. There are no consequences like jail and fines for non-compliance. The ICJ issues a lot of preliminary orders and more than half of them are disobeyed. The states disobeying these interim orders are not just countries like Iran or Russia. I am talking about countries like the United States. The United States has blown off more than its share of preliminary orders, as has Britain. The court issues these orders as if it has formal jurisdiction in some abstract theoretical sense. The reality is it has no way of enforcing its orders. Therefore, we should not automatically assume that we have to follow every ICJ pronouncement, no matter how silly it is.

The order regarding Rafah is ambiguous. The first interpretation of this order is that Israel has to stop all operations in Rafah immediately. The second, is that Israel has to stop only its operations from becoming genocide. This is of course purely hallucinatory. Either way, Israel would be foolish to even consider indicating that it is complying with the ICJ’s orders. I think that the best response would have been silence. I think that Israel has made terrible mistakes thus far by indicating it is trying to comply with preliminary orders. One example of this is Israel reporting on itself about committing genocide. Of course, Israel is not committing genocide. The whole exercise is simply a PR campaign on behalf of a genocidal terrorist organization. Israel should not be participating in any way. Israel should not slice and dice the order to figure out what it means from a theoretical perspective. Israel should be treating the order with the contempt it deserves.

Interviewer: I would agree with you, but I can imagine Israel’s leadership is feeling a tremendous amount of pressure right now. It appears the international community is siding with the barbarians and this is Orwellian and it is evil.

Let’s move on to the ICC. Previously, the ICC announced it was prosecuting Bibi Netanyahu, the democratically elected prime minister of Israel. That was followed by an announcement that the ICC prosecutor is seeking to obtain arrest warrants for Bibi and Israel’s Defense Minister, Yoav Gallant. According to Secretary Blinken, the court lacks the jurisdiction on the matter. However, like most statements issued by this administration, I consider Blinken’s statement to be meaningless. Netanyahu is being accused of various war crimes, including intentionally attacking and starving civilians. He is accused of extermination and murder. We all know that neither Israel, nor her leaders, are guilty of any of these crimes. but it appears we are living in a world where facts do not matter. The chief prosecutor in this case has even referred to Hamas leadership as victims.

I understand there are differences between the ability of the ICJ and that of the ICC to enforce their decisions. What are the international implications if the ICC issues arrest warrants for Israel’s leaders? I think the consequences are more serious than those following interim orders from the ICJ.

Avi: I am not overwhelmed by the implications of the ICC’s decisions either. Let’s understand what they can do. Okay. As I said, the ICC is a criminal court. A single prosecutor brings the charges and then charges individuals. Generally, the prosecutor carries out a criminal investigation. The investigation can be divided into a preliminary inquiry followed by a full-fledged investigation. After that, the prosecutor decides whether or not to issue charges and drafts an arrest warrant if applicable. He obtains authorization to issue the arrest warrant from the pretrial chamber of the court and then publicizes it. In theory, all state parties to the Rome Statute are supposed to arrest that individual and turn him or her over to the ICC to stand trial. If convicted, that person can be placed in jail. However, it is basically impossible for the ICC to get its hands on anyone who does not want to be captured. I think it is certain that the pretrial chamber will approve the arrest warrants against Netanyahu and Gallant. I can guarantee you these will not be the last. There will be other preposterous charges against other Israelis.

I believe most Israelis, including Netanyahu and Gallant, understand they will not get a fair trial if they submit themselves to the court’s jurisdiction. They will not be tried according to any recognized legal standards. Even the idea of the trial will be devastating to the state of Israel since it would serve as a propaganda exercise for terrorists. So, I do not think we have to worry about an actual trial taking place, or at least I hope not. I have to say I am a bit shocked about the legal advice they are getting from inside Israel, from the attorney general and others. I think it is a bit reckless and quite dangerous to the interests of the state of Israel.

The attorney general and staff appear to be trying to cook up arguments to defend Israel’s leaders in the event their trials take place. These trials will not follow any recognized rules. Engaging in such trials would be the worst decision imaginable. I do hope that the government is not going to listen to the advice they are getting here because it is truly horrible. We have reached this point, in part, because of cooperation between Israeli legal authorities and the ICC prosecutor. Israeli legal authorities have been providing documents, conducting discussions and inviting ICC staff to Israel to try and convince them of the merits of the Israeli case. Of course, the Israeli case here is impeccable. There are no solid grounds for criminal charges against any Israeli and the court does not have jurisdiction in any case.

The actual crimes named by the ICC do not fit Israel’s conduct in any way. The legal theories here are insane, but that does not interest the prosecutor. The prosecutor held his press conference announcing he was going to indict Netanyahu and Gallant for the crime of engaging in self-defense of the Jewish state. At that time, he was actually scheduled to be on route to Israel to meet with legal authorities in Israel trying to assist him. It is mind-boggling. I just do not understand what on earth has possessed them to take this reckless course of action. Ultimately, Israel has control as long as it does not cooperate or allow anyone to be arrested. Refusing to engage, would end this propaganda exercise.

Interviewer: If arrest warrants are actually issued, do they restrict the ability of the subjects of the warrants to travel to countries that have signed the Rome Statute? Would those countries have a legal obligation to arrest them upon entering their states?

Avi: Again, in theory a lot of things are true. The history of the ICC and its arrest warrants, however, tell a different story. In the past, the ICC has issued arrest warrants for some real criminals. These criminals actually engaged in genocide, mass war crimes and mass killings. Yet they have flown around the world. Before landing in each country, they confirmed they would not be arrested. For example, wrongdoers under indictment from the ICC for genocide, landed in South Africa. South Africa did not turn them over to the ICC even though it is party to the Rome Statute.

What this really means is that any accused Israeli will have to be careful when traveling abroad. I do not think it is just Israel’s leaders who will be impacted. This is because the prosecutor has signaled his intention to charge Israelis all the way down the chain to the simplest soldier. They all have to be very careful whenever they travel. I think the caution should start now and should not wait until arrest warrants are issued. You can imagine a situation in which the ICC keeps the warrants under seal and reveals them at the last moment. This would likely be a way to entrap someone more junior.  So, all Israelis have to be cautious about international travel these days if they do not want to end up being unwilling participants in a Dreyfus show trial.

Interviewer: It is a crazy situation. In 2013, the ICC prosecutor wrote an essay in which he asserted that the ICC is incapable of delivering justice. That is a direct quote. So, it appears he too recognizes that a lack of fairness is built in at the ICC.

I want to talk more about the ICC’s decision. Several years ago, the ICC opened an investigation into war crimes in Afghanistan. The investigation included the US and its allies. The Trump administration sanctioned the ICC officials involved in the investigation and also imposed visa restrictions on their families. The administration also launched a counter investigation into the ICC for alleged corruption. Then Attorney General, Bill Barr, called those measures an important first step in holding the ICC accountable for exceeding its mandate and violating the sovereignty of the United States. Barr also addressed the ICC’s separate investigation of Israel. He said, “Given Israel’s robust civilian and military legal system and strong track record of investigating and prosecuting wrongdoing by military personnel, it is clear that the ICC is only putting Israel in its crosshairs for naked political purposes.”

President Biden reversed Trump’s executive order imposing sanctions on ICC officials. He also terminated the accompanying visa restrictions, claiming that they were inappropriate and ineffective. Now the ICC has announced arrest warrants for Bibi, Gallant, and others. The House of Representatives responded with the passage of a bipartisan bill to sanction the ICC. 42 Democrats signed the bill. Biden has denounced the ICC’s action, but also strongly opposes the legislation. This means the bill is dead on arrival in the Senate and it will never make it to his desk. This is a long-winded way of me asking you to share your thoughts on what the US could and should be doing to help Israel in the face of this international pressure. It seems that Biden officials are not just turning on Israel, but they are also ignoring the fact that the US could be next on the ICC’s prosecutors list. So, what should the US be doing, Avi?

Avi: Let me take a step back and say something more general about the ICC. After that, I will zero in on measures taken by the United States. The ICC has a pretty abysmal record with respect to its effectiveness. It has been around for more than twenty years. It has achieved final convictions and punishments for fewer than a dozen criminals. Once every two years, it gets somebody punished, not necessarily for the biggest or worst crimes. Almost all of its convictions to date have been against African defendants from politically weak states. That was the status of the ICC’s achievements until fairly recently. The ICC has started to try and boost its importance by engaging in straight out politics. So, it announced that it was going to launch an investigation into American soldiers for alleged wrongdoing in Afghanistan. It issued arrest warrants for Russian leaders and, of course, it has now issued arrest warrants for Israeli leaders. All of these are actions taken under the current prosecutor. The warrants for Russian leaders may very well be deserving but I have to use the words, may very well be, because the actual indictments are sealed and I do not know what is in them.

I have also not been impressed by the quality of the work of the ICC prosecutor. Their charge sheets do not actually reflect any crimes, even when they are against actual criminals. Furthermore, the charges against Putin and other Russians are preposterous because everybody understands they are never going to show up for a trial. They are purely a PR exercise. Similarly, they have pressed charges against the three senior Hamas leaders purely for political reasons. Hamas leaders would never show up for a trial and they will never be tried by the ICC. In the Israeli case, their purely political, grandstanding charges are completely meritless and lack even a credible argument for jurisdiction. We are witnessing an attempt to pervert the international legal system in support of terrorists and against their victims. We are also witnessing threats to commit crimes.

Taking somebody into custody without legal authority, and confining them, is kidnapping. The prosecutor has gone beyond that. He does not like criticism. Several weeks ago, he tweeted that he may use his authority under Article 70 to imprison anybody interfering in an ICC investigation. Kareem Khan is threatening to imprison any American senator daring to vote in favor of sanctions against the ICC. Of course, Kareem Khan is not going to actually put US senators in jail. This is his attempt to engage in strong arming and extortion. These are real crimes and ICC prosecutor staff should be punished for these crimes. Simply announcing personal sanctions on the prosecutor’s staff was enough to get them to drop the charges against Americans regarding Afghanistan. I think that sanctions and other measures against the ICC prosecutor’s office and against the ICC judges and their staff is absolutely the correct thing. We need to defend the justice system against these perversions of justice and we are on very solid moral and legal grounds on this.

As you said, it does not look like the Biden administration is going to stand up for the right thing here. I could go even further than that. The various charges that the ICC and ICJ have leveled at Israel, match the propaganda campaigns coming out of the White House. Do not go into Rafah. Provide more humanitarian aid. Israel is not taking sufficient care to protect civilians. These lines from the White House match the charges from the ICJ and ICC one for one. I think this is not coincidental. They are trying to give the Biden administration room to continue defending Hamas and throwing Israel and Israelis to the wolves. So, sanctions are really important. However, I do not think we will see effective American sanctions until January 20th at the earliest. Depending on the results of the American elections, we may not see effective sanctions in place for another four years after that. That does not mean that Israel cannot pursue other avenues. The United States is not the only actor. It is the most important actor, but other countries can also impose sanctions against the ICC. They will not be as effective as those of the United States, but Israel should certainly be considering them.

Again, I do not understand why legal authorities in Israel are recommending appeasement. It would seem to me that more aggressive steps could and should be taken. There are Israeli allies in the Western world. Argentina is willing to take Israel’s side. The results of recent European elections indicate a political shift in power in Europe. There are countries willing to stand up for what is right. It is really important to start getting them to impose sanctions against the ICC.

Interviewer: You spoke about the incomprehensible way in which Israel is handling the charges from the ICJ and ICC. I do wonder how much the pressure from the Biden administration is impacting Israel’s actions in this regard.

I want to discuss the legal status of a state of Palestine at the UN. A number of countries recently recognized such a state. Palestine has been a non-member observer state at the UN since 2012.  Its status was upgraded last month when it was granted various additional rights. Can you share with us what those rights are and what it means from an international law perspective? Is the recognition of a Palestinian state by some countries symbolic, or does it have broader implications? Also, what does it mean regarding the ICJ and the ICC’s jurisdiction over the Palestinian Authority, for example? Does Israel now have the ability to bring a legal case to the ICJ demanding the release of the hostages, for instance? I am also wondering if Israel has the ability to bring a case against UNRWA, which we know is basically an arm of Hamas. It is a UN entity guilty of aiding and abetting Hamas terrorists and the kidnap and murder of civilians.

Avi: All right, let me start at the end. Does Israel have the ability to bring these cases? That is like asking whether a black family in Alabama a hundred years ago would have the right to bring a tort suit against a lynch mob who killed their father and husband. In theory, they could have, but why would they have? They understood exactly what the outcome would be.

Israel has the ability to cook up a case qualifying for ICJ jurisdiction. They can then demand the ICJ order the release of the hostages. However, there is no reason for them to waste their time doing that. The ICJ and the ICC are not new to this business. They have been doing it for decades. Around twenty years ago, the ICJ issued an opinion called the wall opinion. They ruled Israel has no right to self-defense against Palestinian terrorism. This is shocking, but that is the ICJ. It would not be any different now. If anything, its decisions would be even more shocking and immoral. Israel should not be seeking help from institutions that are joining in the lynchings.

Let’s take a step back. Is there a state of Palestine under international law? There are well-known criteria for recognizing states under international law. It is a question of fact. States must have territory, a population, a government and the capacity to carry on foreign relations. This is the first article of the so-called Montevideo Convention on inter-American relations. Over the years, some have said that a state needs recognition from other states as well. That said, I am not aware of anyone who has claimed state recognition without the first four ingredients I mentioned. So, the Palestinians clearly do not have the ingredients for a state. There is no state of Palestine according to international law.

That said, this is a gambit for the Palestinians. The Palestinians have been doing this for decades. The Palestinian National Council, an affiliated body of the PLO, declared independence in 1988. More than 100 countries then recognized their independence. We are seeing a few more countries recognizing a Palestinian state these days but we are not seeing mass changes. Since the late 1980s, early 1990s, most states in the world have recognized the state of Palestine, even though it does not exist according to international law.

The PLO’s gambit with respect to recognition of a Palestinian state, is designed for a reason. Around ten years ago, Mahmoud Abbas, the head of the PLO, was seeking acceptance as a member state in the United Nations. This was during the early days of the first Obama administration. He laid his objectives out in an op-ed in the New York Times. He explained that the purpose of seeking recognition of Palestinian statehood is to carry out diplomatic and legal warfare against Israel. That is exactly what he has done. The PLO’s particular status at the United Nations was cooked up between the PLO and the then prosecutor of the ICC. It was designed specifically so that the prosecutor could claim jurisdiction over a so-called state of Palestine. The Palestinians helped draft the prosecutor’s recommendation in this regard and then followed it to the letter. We are seeing the results of those efforts right now.

I think we are viewing things backwards by seeing recognition or claims of Palestinian statehood as the starting point. They are the implementation of a deliberate strategy of lawfare. They are part of the intentional plan to implement economic and diplomatic measures against Israel and to facilitate boycotts and divestment. Recognition of the Palestinian state is designed to give a legal fig leaf to the measures that states are taking against Israel. There is no legal issue here per se. This is more of a strategy of coming up with a fig leaf for the measures that they want to take against Israel. To fight this, we have to consider how to blunt those measures. In some cases, we should not be fighting at the point that countries recognize the so-called state of Palestine. In many cases, the first measures should be taken way before that.

Interviewer: Can you discuss how all of this international pressure is impacting Israel’s ability to conduct the war? The pressure from the Biden administration has been tremendous. The administration has slowed the war down. They have demanded a ceasefire and have even held back much needed weaponry. We have just addressed the animus of UN courts towards Israel. Do Israelis feel as if they are alone with the whole world seemingly uniting behind the terrorists and turning on them? The international community’s reaction to Israel’s hostage-rescue a few days ago was shocking. I saw a newsclips demonizing Israel because innocent Palestinian civilians were killed. Most of them were likely not innocent at all and were complicit in holding hostages in their apartment buildings. Where is the Israeli mindset on this? Are Israelis holding strong? When I visited Israel in February, I got a very strong sense of unity and determination amongst Israelis. Has that changed at all?

Avi: Let me tell you a little story. Recently. I gave a talk to an academic audience outside of Israel. A German economist was a member of the audience. He is a huge bookworm and fair-minded guy who does not know very much about the situation. He asked why Hamas attacked Israel and what they thought they stood to gain from the attack. He asked what their cost-benefit analysis was and how they thought they were going to win this. I answered that I do not think Hamas viewed this as a war designed to destroy Israel in a day. They view October 7th as a battle within the larger war to destroy the state of Israel and the Jewish people. Many of the intended effects of the attack were psychological. The attack was designed to break the fighting spirit of the Jews and the Jewish state. They wanted to lift the fighting spirit of the mujahideen fighting the Jihad against Israel.

In one sense, Hamas’ intentions were completely foiled. I do not think that they broke the fighting spirit of the Jews and Israel at all. There is a fair sense of unity in Israel. Israelis are committed to victory and to the survival of the state. The loud politics in Israel do not stop for a second. There is a lot of political maneuvering going on right now. However, there is still a very high degree of motivation in Israel. There is a unity of purpose and motivation to fight to save the state and protect people’s families and their neighbors. Hamas also failed fairly miserably in the Middle East. Mujahideen and terror groups spread around the Middle East, have not jumped to join the fighting. The only ones that have joined the fighting are those ordered to do so by Iran. Only Iran’s proxies in the Middle East have joined the fight.

However, the strategy has been extremely successful in the West. In the West we see the mujahideen, certain kinds of Muslims and Islamists, fully committed to the jihad against the Jews. We also see many progressives joining them. They may be doing this because of a misplaced sense of identity and justice and more out of ignorance than anything else. Whatever their motivation, they have handed Hamas a success which is beyond their wildest dreams.

The slow rot in Western institutions that has taken place over many years. What was called the liberal world order has been ripped apart by the academic institutions and by legal institutions like the ICC and the ICJ. I personally believe the liberal world order was always a myth and never actually existed. That said, it certainly does not exist anymore. Most of the people involved, are more committed to jihad against Jews than they are to the liberal order. Israelis see that we are isolated. A large majority of Israelis understand that there has always been antisemitism in the world. They know world opinion about Israel is generally negative and unfair. They know the world employs double standards and relies on anti-Semitic tropes. They are aware there is no expectation of getting a fair shake. However, that is not where the game is. The only real issue is the United States.

The hostile attitude of the Biden administration has been devastating. I think the Biden administration has attempted to throw a couple of bones to the pro-Palestinian side of the Democratic party and a couple of bones to the pro-Israel side of the Democratic Party. Unfortunately, the overall result has served the interests of Hamas. The United States put a lot of pressure on Israel to slow down the fighting. They effectively granted Hamas safe haven in the Gaza Strip. They prohibited Israel from engaging in humanitarian evacuations of civilians from the Gaza Strip and prevented them from completing necessary operations like blowing up the tunnels. All of this has been great for Hamas. The United States may assert they are saving Palestinian civilians. However, what they are really doing is dooming Palestinians to become human shields. They have pushed for Israel to promise a Palestinian state at the end of the war. This will be perceived everywhere in the Middle East, as a gigantic reward to Hamas for its barbarity. It is the surest way to ensure Hamas remains the most powerful actor among Palestinians for the next three. decades at least. Their level of barbarity will have allowed them to achieve something others before them could not.

We can examine each step the Biden administration has taken steps on behalf of Hamas. The administration slowed down the war. They pushed supplies to Hamas under the guise of so-called humanitarian aid. Israel is fully aware these supplies are being stolen by Hamas but it has to continue providing them because of pressure from the Biden administration. The Biden administration also took over ransom negotiations for the hostages in a very strong way. They consistently pressured Israel to agree to Hamas’ demands. I think that the Biden administration effectively killed any chance of a negotiated ransom deal and they caused the demands from Hamas to get more and more outrageous. So, yeah, the US administration has had a devastating effect on Israel’s conduct during the war. I do not think that the rest of the world is really a major player here.

Interviewer: Yeah, somebody from the audience asked whether the world is committing a war crime by delaying the course of the war in Gaza. Could you accuse the Biden administration of war crimes for the pressure that it is putting on Israel?

Avi: They are not really war crimes. They may be immoral actions. I think they are immoral but they are not war crimes.

Interviewer: Gantz recently resigned from the war cabinet. What are the implications of that on the current status of the war cabinet and the coalition government?

Avi: It is hard to say because things are still playing out in that regard. The bottom line is that the current government has a pretty stable majority with or without Gantz. Gantz’s party was there basically for an expression of unity to the world. It turns out that message was lost on almost everybody anyway. The media in the United States referred to the unity government as the most right-wing government in Israel’s history. It was as if Gantz’s party was not there. They would refer exclusively to Netanyahu when they wanted to say bad things, which was most of the time. So, it is not really clear what was accomplished by having Ganz as part of the unity government. Gantz is much more amenable to American pressure. I think that’s why the Biden administration prefers working with him over Netanyahu. The fact that Gantz is now out of the government, makes it smaller and more fragile. On the other hand, it means the government is more of a common mind and perhaps more ready to pursue a more rapid victory than the Biden administration would like. I think a rapid victory is what is absolutely necessary for Israel’s sake.

Interviewer: I am going to turn to a few of the questions in the queue. Somebody asked for the true definition of genocide. Israel does not meet the definition, but Hamas does as they are trying to eliminate a people.

Avi: Genocide is a term created retroactively after World War II. It was an attempt to define something in international criminal law matching what the Nazis had just done. The actual definition that was finally included in the genocide treaty was not that. The actual one was like everything else produced from international negotiations. It was a compromise made to satisfy the Soviet Union, which wanted it defined in a very peculiar fashion.

Genocide does not mean mass killings. Genocide means any sort of killing, maiming, harming or other acts conducted with the intent to destroy a people in whole or in part. Consider the example of Pol Pot. He killed two million Cambodians in the killing fields. He did not kill them to wipe out Cambodians. Rather, he committed atrocities to wipe out the bourgeoisie.  According to the genocide convention, his actions were kosher and he did not commit genocide at all.

When a Hamas terrorist kills a Jew with the specific intent of wipe out the Jews, that is an act of genocide according to the law. So, it is fairly clear that Hamas terrorists and Hezbollah terrorists are violating the genocide convention every time they carry out an attack. The way the charges have been put forward against Israel illustrates they are preposterous and not serious. They allude to the risk that Israel may fall into genocide. It is impossible to fall into genocide. The entire definition of genocide is based on a state of mind and an intent. It cannot possibly be a mistake. If the war in Gaza ends up taking the lives of 30,000, 40,000, 50,000, 60,000 or even 100,000 people, it is still not genocide. The limit on Israel’s use of force in its war against Hamas is found in the laws of war, not in the laws of genocide.

Interviewer: That takes us to the next question. I guess you could spend an hour answering this one. Is Israel doing as much as it can to protect the non-combatants in Gaza?

Avi: I cannot say Israel is doing as much as it can to protect civilians in Gaza. Israel could do more than it is already doing. It could surrender to Hamas, give up the war and allow Hamas to triumph. If Israel carried out no combat operations, no non-combatants would be killed. I think what you asked is not the real question. The real question is whether Israel is complying with Western moral and legal standards which are basically derived from Christian moral theology. In answer to this, I would say that Israel is not only complying with them, it is being stricter with itself than any other Western army.

There is no other army engaged in combat operations that is more solicitous of the enemy civilian life than Israel. Israel is bending over backwards in a challenging situation. We all know that Hamas is reckless with all civilian lives. Hamas wants to kill and murder Israelis and it is perfectly happy to use Palestinian civilians as cannon fodder and human shields. Hamas has no regard for Palestinian civilians whatsoever. In that challenging environment, Israel is the one trying to protect Palestinian civilians. Israel is doing more than any other Western army would do. Not only that, it is doing more to defend Palestinian lives than the Palestinians themselves.

If there is a moral flaw in Israel’s approach, it is the price they are paying for their over solicitousness. Because of the care they are taking, the operation is taking longer, the hostages are being held for longer and more Israeli soldiers are being killed. Innocents are paying the price for Israel bending over backwards to protect Palestinian civilian lives. I think it is a blood libel to try and make the case that Israel is not being careful enough and not protecting enough to Palestinian civilians.

Interviewer: Yeah, thank you for that. Somebody asked who funds the ICC?

Avi: The ICC is funded by state donors. It is funded by those states who joined the Rome Statute. The amount each state contributes is based on a complicated formula which depends on factors like their size and power. The ICC is an expensive operation because it has a gigantic bureaucracy that does very little. This also means that they are vulnerable to states cutting off their contributions. If a party-states stopped funding the ICC, they would have to wrap up their operations quite quickly. It is a shame that so few Western leaders have had the courage to do this. The ICC is not the UN and the United States is not a party to the ICC. So, the United States is not in the position to cut off contributions to the ICC on its own. It has to persuade member states to cut off funding. But yeah, this is a point of vulnerability for the ICC.

Interviewer: Avi, thank you so much for joining us this afternoon, and thank you to our audience for joining us. I always learn so much from you, Avi. And this is recorded and I think everybody should share this far and wide to understand really what is going on in the Middle East. I wish everybody a good afternoon. Avi, thank you again. Hope to talk to you soon.

Avi: All right, thank you. Thank you very much.

Interviewer: Bye.



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