TEL AVIV, Israel (AP) — Israel is sending senior lawyers, including a Holocaust survivor, to The Hague this week to counter allegations that it is committing genocide against Palestinians in Gaza.
The strong involvement with the International Court of Justice is unusual for Israel, which typically views the United Nations and international tribunals as unfair and biased. The decision to participate rather than boycott reflects Israeli concerns that the judges could order Israel to end its war against Hamas and damage its reputation internationally.
“Israel cannot run away from such a serious accusation,” said Alon Liel, former director general of Israel’s Foreign Ministry and former Israeli ambassador to South Africa.
Israel, which has the right to send a judge as one of the parties in the case, has tapped a former head of Israel's Supreme Court to join the court's 15 regular members who will decide the charge. The company has also added a British lawyer and renowned international law expert to its defense team.
Israel hopes their expertise will refute South Africa's claim that Israel's military operation in Gaza amounts to genocide and prevent an injunction that would force Israel to stop fighting. Israel says ending the war when Hamas's capabilities are intact in many places and hostages are still held would be tantamount to a Hamas victory.
The accusation of genocide goes to the core of Israel's national identity. The country sees itself as a bulwark of security for Jews after six million people were killed in the Holocaust. International support for the creation of Israel in 1948 was deeply based on outrage at Nazi atrocities.
That same year, world powers, with Israel's participation, drafted the Convention Against Genocide in the hope of preventing similar atrocities.
Israel's unprecedented air, ground and sea offensive has killed more than 23,200 Palestinians, two-thirds of them women and children, according to health officials in the Hamas-controlled Gaza Strip. The Israeli military operation displaced around 85% of Gaza's 2.3 million residents, many of whom had no home to return to. More than a quarter of the population is hungry.
South Africa, which has long been a critic of Israel's treatment of Palestinians, has brought the case to the United Nations' top court in the Netherlands. Many South Africans compare Israel's policies toward Palestinians in Gaza and the West Bank to their own country's previous apartheid regime, which was based on racial segregation.
Israel vehemently denies the genocide claims and says it is waging a war of self-defense after Hamas militants launched their attack on southern Israel on October 7, killing about 1,200 people, mostly civilians, and taking about 250 hostage. Israel says its actions are in accordance with international law and that it is doing its utmost to prevent harm to civilians, and blames Hamas for the embedding in residential areas.
South Africa's 84-page filing said Israel's actions, including killing Palestinians and causing severe mental and physical harm, were “genocidal in character.” Israeli officials are said to have expressed genocidal intentions.
The case is likely to drag on for years. But documents filed by South Africa make a request for the court to urgently issue legally binding injunctions so that Israel “immediately suspends its military operations in and against Gaza.”
Compliance with such a decision would be politically costly for Prime Minister Benjamin Netanyahu, as Israelis still largely support the war. Israel would also fail in its stated goal of destroying the militant group.
If it does not comply, Israel faces UN sanctions. Although the United States, Israel's closest ally, could veto such a move, it would anger many Democrats who have already angered President Joe Biden over his strong support of Israel in the war. That could be damaging for Biden as he seeks re-election. US Secretary of State Anthony Blinken said on Tuesday that the case was “meritless.”
Eylon Levy, a spokesman for the Israeli government, criticized South Africa and said it gave political and legal protection to Hamas.
“We are appalled that South Africa has chosen to be devil’s advocate,” he said.
An Israeli official said Israel agreed to cooperate with the court because it was confident it would prevail. The official spoke on condition of anonymity because he was not authorized to discuss the matter with the media. Israel boycotted a high-profile case before the court in 2004 over its West Bank barrier, which the court deemed “contrary to international law,” saying the proceedings were politically motivated.
Israel chose Aharon Barak – a pillar of the country's legal world for decades – as a member of the international panel of judges. A former prosecutor general and peace negotiator who served as chief justice of Israel's highest court from 1995 to 2006, Barak has ruled on cases involving Israel's treatment of Palestinians.
The internationally known 87-year-old has received honorary degrees from several universities, including Yale and Oxford.
He is also a Holocaust survivor who was sent to Lithuania's Kovno ghetto at the age of five, where he says he repeatedly escaped death. This personal detail could be important for his conversations with the other judges.
Just a few months ago, Netanyahu and his allies denigrated Barak as they pushed ahead with plans to reform Israel's justice system. Barak, under whom the courts took on a stronger role, was seen as a symbol of an overly interventionist legal system.
Demonstrators held sit-ins outside his home in Tel Aviv and politicians blasted the octogenarian in speeches in the Knesset. But in light of the case in The Hague, Netanyahu made a quick about-face, surprising even his critics.
“At a time of legal problems on the international stage, Israel can only rely on one person,” wrote commentator Yossi Verter in the Haaretz daily. “Even Netanyahu understood that there was no one but him. He is our 911 emergency service.”
British lawyer Malcolm Shaw, who will defend Israel, is the author of what is considered the definitive textbook on international law. According to a biography published online by Essex Court Chambers, where Shaw practices law, he has represented numerous states, including Ukraine and the United Arab Emirates, in international litigation, including before the International Court of Justice.
Robbie Sabel, a former legal adviser in Israel's Foreign Ministry who counts Shaw as a friend, said it remains to be seen whether judges from countries with poor relations with Israel would rule objectively. But he said Israel had prepared to face the allegations head on.
“They picked the best people,” he said. “That means Israel is taking it very seriously.”
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