Covenants, Without the Sword

Some Initial Thoughts on the ICJ Ruling

1. In light of the International Court of Justice’s ruling yesterday that Israel must “take all measures” to prevent acts of and incitement to genocide in their war of Gaza, it’s tempting to quote Thomas Hobbes’s who wrote in Leviathan, “covenants, without the sword, are but words….” The ICJ, of course, has no enforcement arm: there is nothing it can do to compel nations to obey its rulings. And even if it did have that capacity, it came short of ordering a ceasefire in the war. Still, if the ICJ was entirely toothless and its rulings “but words,” why did Israel feel the need to take it seriously enough to respond to South Africa’s case, although it usually ignores such international courts and even characterized these proceedings as lawfare carried out on behalf of Hamas? And why did U.S. officials apparently fear a possible cease fire order as an obstacle to continued support of Israel? The reason is that a key question in this war is legitimacy—the notion that states don’t merely rule by force alone, but that their actions and even their very existence can also be justified rationally. It’s been my contention that Hamas calculated its attack to damage or even destroy Israel’s international legitimacy. They were armed with the cunning insight that the degraded state of Israeli politics and military doctrine would give them a close collaborator: the Jewish state itself.

2. Despite its reputation as the supremely martial nation, Israel’s existence as a state is not solely the product of force of arms. It’s a result of the first serious international effort to arrange the affairs of states not just according to the principle of legitimacy, but of legality and justice. It was the first state essentially created by a U.N. resolution: the 1947 Partition Plan for Palestine that prescribed what’s become known as “a two-state solution”. And despite the characteristic arrogance and bravado of Israeli generals and politicians, Israel, a nation whose population is just a little over the size of New York City’s and whose territory is about the size of Connecticut, cannot hope to survive long without the military and economic support of the larger nations, particularly the United States. (Some estimate that Israeli ammunition stocks would last about one week without a U.S. replenishment.) In this context, the notion of Israeli “sovereignty” is highly questionable. (In fact, the entire idea of the U.N. and the convention on genocide is not compatible with the old idea of absolute sovereignty.) Israel not a world power like the Russia, which because of its population, natural resources, and industrial capacity—although diminished since Soviet days—can just ignore the U.N., like it did when the ICJ demanded a halt and reversal of Ukraine to its invasion. For all the rhetoric about Hamas being the equivalent ISIS and this war requiring its absolute destruction, the Israeli state does not even have the power to ignore Hamas as a political entity. Because of both domestic and international pressure it must continue to negotiate with a group it states is an existential threat.

3. Israel is not alone among states is its tendency to alternately embrace and defy the United Nations when it suits its interests. But because of its reliance on the framework of other states, the contradictory aspects of its case and its whole attitude to international agreements become glaring. Israel has made much that the ruling did not demand a ceasefire and therefore upheld its right to defend itself, but in doing so—and in even answering the charges—it bas implicitly accepted the competence of the court. If the court can plausibly uphold Israel’s right to defend itself, then it can also determine that it committed acts of genocide. In its arguments to the ICJ, Israel naturally wants to highlight the horrors of October 7th. But as an explanation of the levels of violence involved in its response, it risks the appearance they are involved in reprisal and collective punishment. In other words, a justification of brutality, even if it might fall short of the legal definition of genocide. In this they are following an identical logic to those who justified or even celebrated “Al-Aqsa Flood” as the natural outcome of Israel’s occupation and cruel treatment of Palestinians for the better part of a century: that peoples earn a certain right to brutality after long oppression. That, of course, has been the unspoken, or only seldom spoken, principle of both Israeli and Palestinian warmaking since the beginning: that their own woeful history of mistreatment and the vicious conduct of the other side justifies or excuses their own acts of cruelty. Part of Israel’s answer to South Africa’s charges is that Hamas’s statements and behavior on October 7th were genocidal in intent. And so it goes. One must ask oneself at some point if the concept of genocide is a restraining or inciting element in this conflict?

4. Genocide lies at the root of the entire conflict, which brings us to the other reason that Israel cannot just totally ignore the ICJ. The convention on genocide was created in response to the Holocaust. As was Israel as a state, both because of the mass migration from Europe and the sense among nations that the Jews deserved, in fact, needed, a state. In other words, that there was a principle of justice involved in the creation of Israel, a redress for years of persecution and genocide. But the nature of principles is that they must be able to be made universal and cannot admit of exceptions. Laws must applied uniformly. The very creation of a universal concept of “genocide” suggests that it is a category capable of application to other events than the Holocaust alone. In fact, Raphael Lemkin’s interest in the problem of mass killing that lead to the creation of genocide both as a general term and as a legal concept began with the Armenian genocide. But the application of genocide to Israel’s conduct has been labeled by Israel’s defenders a form of Holocaust denial or revision, a way to diminish the enormity of that crime and in effect rob Israel of its moral standing. As Alan Dershowitz complains, “It would then apply to the US bombing of Hiroshima, the British bombing of Dresden, and the killing of civilians during the Afghan, Iraqi, and Syrian military actions.”

5. Many might say, “Okay, then.” But it’s interesting to note that Israeli officials statements comparing their own behavior to Allied bombing campaigns of World War II did not appear in South Africa’s charges. And the predominant use of bombing as a method of killing itself is part of Israel’s defense. In oral arguments, Israel’s counsel Malcolm Shaw said, “Indeed, the Court itself emphasized in its Order of 2 June 1999 that the threat or use of force cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention, and particularly instanced bombings as lacking the element of intent in the circumstances.” The Allied strategic bombing campaigns of World War II deliberately targeted civilians, both in order to terrorize and attempt to break the will of the population and to kill workers. Israel’s defenders have said there’s a lack of intent to commit genocide and even comparisons to Assad’s terrible techniques of warfare is unfair because of a lack of intent to harm civilians. But if the paradigm Israel’s leadership has chosen for itself is the Allied bombing campaigns, then they are saying they intend to kill civilians or do not care if they die en masse.

6. The Allied campaigns were certainly atrocious and may have been war crimes, but is genocide really the right framework to understand them? Perhaps not. But this brings me to my hesitation with hastily applying the term genocide to Russia’s war in Ukraine, or Israel’s actions in Gaza, or Hamas’s attacks on October 7th: War itself should be bad enough. By making “genocide” the moral limit, the sheer cruelty and destructiveness of war fought according to “legal” limits is diminished. And so is the existence of atrocities, massacres, and war crimes that do not meet the ICJ’s standard for genocide. Here we come to another reason for Israel’s engagement with the court: it could conceivably be vindicated of the charges of genocide and thereby claim a moral victory when it should have had to live with the shame of it wrought on Gaza.

7. The court, of course, did not rule on the question of whether genocide has taken place, but on whether it was “plausible” to be concerned that it might. It’s very difficult to avoid the strength of South Africa’s case in this matter and the weakness of Israel’s response. The combination of the intense suffering inflicted on Gaza and the stomach-churning remarks from Israel’s political class paint a grievous picture. In that light, worry about genocide seems clearly justified. Israel’s contention that these are just random remarks and do not reflect policy is not particularly encouraging, either: another part of South Africa’s case was that the inciting remarks on the part of leadership is connected to the apparent breakdown in discipline among IDF soldiers recorded on social media. Netanyahu seems unable to discipline even his own government: ministers were ordered to refrain from commenting on the ICJ’s ruling; Itamar Ben Gvir immediately tweeted “Hague Shmague,” continuing the pattern of heedless and arrogant remarks that has done so much harm to Israel’s international standing. Ben Gvir’s arming and incitement of the settler population in the West Bank seems to be in preparation for a hoped for social breakdown in Israel and pogroms that would affect another round of ethnic cleansing. Massacres and war crimes often occur in this atmosphere of collapse in discipline and control, when an invading army looses military coherence and becomes a marauding band. The emotional character of the war in Israel, the deep wounds opened up by October 7th, and the sheer desire for revenge make the risk of atrocity all the higher. It seems strange that the party allegedly committing genocide is made responsible by the court for enforcing the ruling, but perhaps the ICJ ruling will have some restraining effect on a society about to go over the brink.

8. The sickening logic of this war is that both sides want to see just how much killing and death they can get away with to further their ultimate goals, neither of which are particularly realistic in the final analysis. Israel’s wager is that they can such inflict a terrible price for October 7th that it will beat the Gazans finally into submission. Hamas’s gamble is that Israel, by overreaching, will harm itself more than it can harm Hamas, a proposition for which they are clearly willing to sacrifice tens of thousands of Palestinian children. Hamas found a fault-line in Israel’s diplomatic and military priorities, a chink in Israel’s armor—a contradiction, if you will—between Israel’s need for friends abroad and its doctrine of overwhelming force applied to its enemies. The only “realistic” conclusion to all this is that Palestinians and Israelis need to come to some modus vivendi and that neither side has the strength to impose dream-world “final solutions” of total destruction on the other party, the pursuit of which leave behind the realm of war and politics and unambiguously involve genocide.

9. Finally, let’s suppose that Israel is found guilty of genocide according to the U.N. convention. Such a ruling would come long after the fighting in Gaza ends. It would not save the people there. Perhaps it would provide them some measure of justice. But genocide also inflicts a wound that cannot be healed. It would justify the continuation of the conflict for at least another generation, just as the memory of Holocaust and the Nakba are being used to justify the conflict today. Who can really blame a victim of genocide for seeking rectification? This is not just a matter of words and legal arguments. The Jews of all people in the world should be aware that the application of brutality alone cannot snuff out the national aspirations of a people determined to survive and assert themselves. That constant persecution and massacres can resolve the will as much as break it. And that the injuries inflicted on previous generations are carried long after they are dead and gone. The obvious, simple truth of entire tragic saga should have been clear by now, but apparently needs restatement: killing alone will not resolve anything.