The ICJ’s decision today on provisional measures in the case South Africa brought against Israel under the Genocide Convention is not the end of the world. It requires Israel to “take all measures within its power to prevent the commission of all acts within the scope of” Article II of the Genocide Convention, and to “ensure with immediate effect that its military does not commit any [such] act.” But these are obligations that Israel has always acknowledged that it has. It requires Israel to “take immediate and effective measures to enable to provision of urgently needed basic services and humanitarian assistance.” Israel has been doing that, though, too. It doesn’t require Israel to stop fighting the war, which is important because, as Judge Barak’s separate opinion points out, the drafters of the Genocide Convention understood that:
The infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide. In modern war belligerents normally destroy factories, means of communication, public buildings, etc. and the civilian population inevitably suffers more or less severe losses.
To the extent South Africa’s real goal was to stop Israel from prosecuting a war that seems so clearly justified given October 7 and Hamas’s expressed intention to do the same whenever it can, we can be glad that the ICJ did no more than it did.
Nevertheless, I believe the ICJ’s decision is historically shameful. As I have written each time I’ve addressed questions of public international law since October 7, I’m not an expert in the relevant law, and so my criticism of the Court’s decision is not that it got the law wrong (though I hope that it did), but that if the law justifies the view that it’s plausible to think that Israel is committing a genocide, then there is something drastically, fundamentally, and morally wrong with the law. The world has seen genocides. The genocide of the Native American peoples after European colonization and through the nineteenth century. In the early twentieth century, the Armenian Genocide. The Holocaust, the murder of two-thirds of European Jewry. The genocide of the Tutsis. It is beyond the pale, in my view, to suggest that the war in Gaza—a terrible war, and in some ways particularly terrible because of where and how it is being fought—is essentially like these examples.
I don’t claim to be a scholar of history or psychology or antisemitism or anything else. But when I see the way the world twists and inverts what should be universal human values to accuse the Jews of the crime of which they were the most prominent victims in modern times, to accuse the Jews of being the real Nazis, while questioning whether Jews really understand what Judaism is all about, at a time when the Jews are again facing an explicitly genocidal enemy, it is clear to me that there is something to the concept of “secondary antisemitism,” antisemitism as a result of guilt about the Holocaust. There’s an aphorism attributed (apparently wrongly) to Israeli psychoanalyst Zvi Rex: “The Germans will never forgive the Jews for Auschwitz.” I think one can say that the world will never forgive the Jews for their victimization, and that phenomenon helps explain the hypocrisy and sanctimony and desire to “turn the tables” that we see today.
The ICJ has let itself been used by groups that not only are explicitly committed to the genocide of the Jews but that have actually taken concrete steps to carry it out and have said they are going to keep doing it. And it has wound up saying that Israel, which has taken military action in self-defense after a barbaric massacre, could itself be guilty of genocide, when the whole strategy of the genocidal group that attacked it is to ensure that it is impossible for Israel to defeat it without inflicting terrible civilian casualties, for example, by using protected sites and residential areas as bases of operations. The Arab states long ago expelled essentially all their hundred of thousands of Jews, who today make up the largest group of Jews in Israel. It is Israel that has a vibrant community of Palestinian Arab Christian and Muslim citizens living within its borders, serving in parliament, working in the professions, often fighting in the army, and making up a significant minority of the population. Yet it is Israel that is accused by the state that gave us the word “apartheid” of the most serious crime against humanity, and the International Court of Justice has, at least in a tentative way, agreed. That is morally perverse and unacceptable to me.
It has proved hard for our civilization, which is deeply tied to the idea of the Jews as a politically powerless and separate group living in exile among the majority group, Christian or Muslim, to come to terms with a successful Jewish state in the Jewish homeland. It was one thing to support a Jewish state when it was a pipe dream, or when for decades it was being invaded or threatened with invasion by surrounding Arab armies aiming to wipe it off the map. It’s another thing to support a Jewish state when it is just, you know, a nation-state, trying to make peace with its neighboring states, not made up of saintly martyrs or victims, but just ordinary people, unfortunately led at this moment by a venal and imperfect government and with their own problem with domestic extremism, trying to defend themselves from a genocidal enemy that will never accept their presence in the land and that takes the dollars that we humanitarians provide and uses them to build tunnels and rockets. The world’s message to Jews: you’re on your own, kid, you always have been.
I add that I hope that Israel will not allow ministers or soldiers to make statements of the kind that South Africa and the Court pointed to as evidence of genocidal intent. Leaving aside the question of whether the statements were or were not taken out of context, it seems clear to me that they don’t reflect what Israel and its Defense Forces are actually doing. But with that said, my view is that Israel has a political problem: its leader, in order to form a government, has had to ally himself with sometimes unsavory and irresponsible figures, and he lacks the political courage to risk defeat by disassociating his party from theirs. The lack of political courage is just part of democratic politics today, and is one of the things that distinguishes imperfect democracies like Israel, the United States, and all the rest of them from organizations like Hamas, who govern but who never have to face voters and who, it seems, are more popular with naive American university students than they are with the people whose interests they have a responsibility to protect. The Court called today for the immediate release of the hostages, a call Hamas is sure to ignore.