The World Court Prejudges the Victim of Mass Atrocities but Ignores the Perpetrators

A general view of the International Court of Justice in The Hague, the Netherlands, on April 12, 2006. Michel Porro/Getty Images

Commentary

In the early hours of Feb. 12, after intense aerial strikes on Rafah and firefights in a crowded residential neighborhood, Israeli forces rescued two hostages who had been abducted on Oct. 7, 2023. Nearly 70 Palestinians were reportedly killed in the two-hour raid. Two mosques and more than a dozen houses were hit. One Israeli soldier was lightly wounded in the operation.

This raises three critical questions under international humanitarian law (IHL). What is a “proportionate” number of Palestinian deaths that would justify the rescue of two Israeli hostages? Who makes this life-and-death judgment call? How do the Israeli military and government weigh their conflicting duties of care toward Israeli hostages and Palestinian civilians, among whom are embedded Hamas fighters guarding the hostages?

South Africa lodged a fresh application with the World Court, also known as the International Court of Justice, seeking a new emergency order against Israel’s impending offensive in Rafah, alleging a “serious and irreparable breach” of the court’s Jan. 26 orders and the 1948 Genocide Convention by Israel. This is what happens when courts are weaponized into tools of politicized lawfare. The orders were legally dubious and politically one-sided against the victim of one of the gravest breaches of IHL and the 1948 Genocide Convention.

The dissenting note from Israel’s ad hoc Judge Aharon Barak to the World Court’s 15–2 majority orders is cogent and compelling. He poignantly noted that “genocide is a shadow over the history of the Jewish people, and it is intertwined with my own personal experience.” Although appointed by Israel, he wrote, “I am not an agent of Israel. My compass is the search for morality, truth, and justice.”

Israeli soldiers carry the rules of law in their backpacks. Israel’s Supreme Court has held that torture is prohibited, religious sites and clergy must be protected, and all captives must be afforded fundamental guarantees. These edicts set the standards for the conduct of the Israeli military. International law is an integral part of the military code, and “Israel’s multiple layers of institutional safeguards also include legal advice provided in real time, during hostilities,” Judge Barak wrote.

Hamas fighters aren’t subject to any comparable normative restraints. Locating fighters amid civilian populations, hiding weapons in schools, and establishing military command centers underneath hospitals and the chief U.N. agency in the Gaza Strip are all war crimes. So is firing missiles indiscriminately at targets across the border, knowing many will fall short of hitting targets in Gaza itself, plus the fact that they are often fired from civilian installations in Gaza. The extensive network of tunnels is reserved exclusively for the movement of Hamas and not made available as shelter for Palestinian civilians.

The marauding Hamas terrorists killed, raped, and burned Israelis in the Oct. 7 attacks and publicly defiled the dead, with cheering and jeering crowds in Gaza spitting on corpses. The terrorists didn’t bother to separate civilians from security personnel, fighting-age men from women, children, and the elderly, or even Jews, Christians, and Muslims. The hostages whom they abducted to Gaza added to the list of their war crimes.

In launching these barbaric attacks, Hamas broke an existing ceasefire. Were it not for those attacks, Israeli soldiers would not be in Gaza today. The ferocious Israeli retaliation was entirely predictable, and Hamas would have anticipated that, but was prepared to sacrifice tens of thousands of Palestinian lives in its quest to delegitimize Israel in world opinion. Or did they think Israel would just look the other way?

In further violations of IHL, Hamas refuses to provide the hostages’ names and information on those dead and still alive, and refuses the Red Cross access to them to deliver medical supplies, discover their locations, and check on their welfare. Yet, the entire burden of civilian casualties and humanitarian suffering is put on Israel, the victim of the Oct. 7 attacks, and not on Hamas, which launched the attacks to start a war that Israel neither sought nor wanted.

The war could end speedily if Hamas released all hostages, handed over its weapons, and gave up the individuals who planned and carried out the attacks. With Hamas not even in the World Court, its deliberations and conclusions could not but be one-sided. Hamas has shown complete disregard for both Israeli and Palestinian civilian lives. Comments from U.N. agencies and officials that the court relied on were generic with respect to the dire humanitarian suffering in Gaza, not descriptions of Israeli actions. None of them use the term “genocide” nor point to Israeli intent to genocide, which is an essential condition in the legal definition of genocide.

Laws exercise the dual functions of a license, enabling some acts, and a leash, constraining other acts. The international system has a strong leash but weak license elements. It is good at saying what must not be done—hence, the platitudinal calls for maximum restraint and eschewing escalation—but woefully inadequate at identifying effective measures to combat existential threats. How should Israel fight among dense civilian populations in Gaza? If Israel avoids going into Rafah, Hamas survives and wins. There is no plausible pathway to a self-sustaining peace with Hamas left intact as a fighting and political force.

International law, which is the provenance of the World Court, permits Israel to take military action in self-defense. Breaches of IHL should be adjudicated in the International Criminal Court (ICC). On Nov. 3, 2023, François Zimeray, a former French ambassador for human rights, filed motions at the ICC calling for an international arrest warrant for Hamas leaders for genocide on Oct. 7. The ICC chief prosecutor is British lawyer Karim Khan. How many people would expect him to file an application against Hamas? Sure enough, Mr. Khan surfaced on Feb. 12, saying that if Israel proceeded with the threatened invasion of Rafah, it could face charges of war crimes. Quelle surprise?

After their tragic history in the past century, Jews are inclined to believe enemies who threaten them with genocide. The Oct. 7 attacks were stark proof that Hamas means to act on its commitment to eliminate the state of Israel and expel all Jews from the region. Hamas has openly and repeatedly threatened to repeat Oct. 7 again and again. It plays its useful idiots in the West, especially the queer and LGBT crowds on university campuses, for fools. It exercises military and governmental functions to rule over the Gaza Strip but is not answerable for its acts of governance to the people of Gaza nor to international institutions.

The World Court’s three women judges from Australia, China, and the United States joined in the majority opinion. Did they spare a thought for the brutality of the weaponization of sexual assault, genital mutilation, and open-air public humiliation by Hamas terrorists on Oct. 7? Also, recalling the situation of the Uyghurs, is it permissible to note that the third concurring woman judge calling for Israel to prevent genocide is Xue Hanqin from China?

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.