Wars are not won by defending an attack on terms dictated by one’s enemy. Israel is at war, not just with terrorist organizations that seek the genocide of the Jewish people, but with terrorist supporters who abuse the international legal system to wage lawfare against it.
South Africa – a country in which Jew-hatred is rampant – filed a petition with the International Court of Justice (ICJ) spuriously alleging, of all things, that Israel is committing genocide in Gaza. The same Gaza whose Arab population has grown by the hundreds of thousands since Israel forcibly evicted every last Jewish person in 2005. This petition, which seeks to restrain Israel’s right to defend its civilian population from genocidal attacks like those of Oct. 7, is the very essence of lawfare, the abuse of the law as a weapon of war.
Responding to this lawfare “symmetrically” – by defending against these claims before the ICJ – is not in Israel’s interests. Simply put, even if Israel “wins,” it will be forced to play again, over and over again, until it loses. And if (when) Israel loses, a further precedent will be set: the rights of all democratic countries to defend their people will be severely undermined.
Israel shouldn’t respond to the ICJ
Clearly, a different response is needed. The only way to win a war in which the terms of engagement are stacked against you is asymmetrically. Or, to put it differently, the only way to win a rigged game is to not play at all.
But some argue that Israel should take this as an opportunity to make its case on the world stage. That position reflects a dangerous naivete, given that it ignores the very real bias against Jews, not just among foreign governments but in the media, which will prevent that opportunity from being realized.
Others believe that appointing Aharon Barak – perhaps the most liberal justice ever to sit on the Israeli Supreme Court, and a staunch opponent of the government’s judicial reform plan – to sit ad hoc on the bench of the ICJ on Israel’s behalf will somehow appease Israel’s critics. Barak, after all, was the legal advisor to the Israeli delegation negotiating the Camp David Accords – an agreement that was naked appeasement of Israel’s enemies, but which did nothing to stop the continual attacks on her civilian population. But appeasing Israel’s critics (let alone its enemies) has never worked, and appointing a judicial activist who seems to believe in expanding, rather than limiting, a court’s powers (he killed the Israeli Supreme Court’s standing test and increased the range of matters deemed justiciable) is imprudent, given Israel’s interest in limiting its exposure to the ICJ.
More perplexing is the apparent volte face of the Israeli Justice Ministry in its position on submitting to international courts.
When Psagot Winery (a Lawfare Project client) sought to defend itself on allegations that it was violating European Union law by labeling its wines as “product of Israel,” the Ministry very publicly came out against Psagot’s action. Yet now, when the stakes are exponentially higher, the Ministry is eager to play a “game” it knows to be rigged – which begs the question of what pressures it is bowing to.
What these views have in common, essentially, is the misguided belief that Israel is somehow obligated to defend its existence.
But the Jewish people have no obligation to defend their right to life.
Historically, the world has stood by time and again as genocide after genocide was committed against the Jewish people. Defending the right to life is less consequential than actually defending Jewish life, which is what Israel is doing.
What kind of message is Israel sending its soldiers who are risking their lives to defend both Muslim and Jewish civilians, that it has to seek legitimacy from a court with no authority?
Instead of defending against South Africa’s claims, Israel should focus on showing that the ICJ – and indeed all the organs of the United Nations – have lost their legitimacy and now do more to foster conflict than to resolve it.
An illegitimate court is not one capable of rendering any sort of justice. The mere fact that the ICJ is entertaining South Africa’s petition, instead of dismissing it outright, shows the depravity to which this “court” has sunk. As the Biden Administration made clear, “[W]e find this submission meritless, counterproductive, and completely without any basis in fact whatsoever.”
The ICJ’s bias is on full display: Instead of focusing on the atrocities perpetrated by Hamas (and its supporters), the ICJ chooses to treat Hamas as a potential victim. The court’s basic disregard of Israel’s well-established right, under international law, to defend itself from attack shows a disqualifying level of bias – the same bias previously shown when it issued an advisory opinion in 2004 on Israel’s security barrier that willfully ignored the barrier’s significant role in preserving human life by reducing terrorist attacks. Moreover, before rendering its so-called advisory opinion, the ICJ refused to hear testimony of Israeli victims of terror attacks.
If it was up to the ICJ, Israel would have had no barrier wall between the Hamas terrorists in Gaza and the kibbutzim that were attacked.
The icj is no longer a neutral arbiter of justice. It lacks basic due process. Its bias has turned it into a political entity and destroyed its legitimacy as a court of law. Israel cannot afford to risk its sovereignty, including its right to self-defense, by seeking justice from a political body infused with systemic Jew hatred. Indeed, engaging with the ICJ on its terms sets a dangerous precedent of empowering (and legitimizing) the very lawfare now being conducted against Israel.
Instead of fighting a losing battle, Israel needs to show, on the global stage, that the ICJ has become an illegitimate court. It needs to employ every diplomatic channel and every political tool available to show what the principal judicial organ of the UN really is. Like the UN, the ICJ is an institution that has become a cesspool of bias and Jew-hatred. Israel needs to highlight the politicization and bias that have come to plague the ICJ, the International Criminal Court (ICC), and the UN itself. Indeed, one only needs to look to Iran’s envoy being appointed to chair a UN Human Rights Council meeting to see what the UN has become.
There once was a time when the pursuit of justice was guided by sanity and rational thought. The ICJ – like the ICC and the UN – was a product of a post-WWII vision for a global justice system that would, optimistically, prevent global conflict and ensure peace. But in the decades that followed the six million Jewish dead, the post-war optimism was replaced by systematized hatred against the Jewish people and the State of Israel, coupled with an abject failure to effectively mediate conflicts and prevent atrocities.
The UN itself has become a forum for illiberal and genocidal dictators to unite against the democratic ideals that created it. A democracy of totalitarian dictatorships. Consequently, the UN and its institutions have lost credibility and legitimacy, and there are now serious questions about their commitment to impartial justice.
Israel must shift its focus from defensive legal tactics to proactive strategies that assert its position and values on the global stage. In so doing, it will delegitimize the ICJ and neutralize the effect of any ruling coming from what has become a kangaroo court.
The Genocide Convention was born of the ashes of over six million murdered Jews and is now being used as a weapon to enable another genocide.
It is shameful that the ICJ, founded in the wake of a devastating world war and with the aim of helping prevent another Holocaust, is now being used as an instrument of lawfare to support the potential mass murder of the Jewish people by trying to restrain Israel from defending itself.
The UN and its organs are no longer legitimate, and allowing this self-appointed “world court” to exercise legal authority over Israel is an existential threat not just to Israel and the Jewish people but to everyone who values justice, democracy, and the sovereign rights of the world’s nations to protect their citizens from genocidal atrocities.
Brooke Goldstein is founder and executive director of The Lawfare Project and End Jew Hatred Movement. Gerard Filitti senior legal counsel to the lawfare project.
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