Some interim reflections on the 7th October Gaza War

[The first part from 4th January 2024 is here.]

Let us start with the conclusion: the likelihood that the International Court of Justice (ICJ) will find Israel guilty of committing genocide in Gaza is very low, but the likelihood that it will decide on some provisional measures to prevent genocide in Gaza is very high. Why the gap between the two likely outcomes? Because the burden of proof is much heavier when it comes to the final ruling than it is for the provisional ruling.

To evaluate the ICJ case, we need to look at the submissions and statements by both sides, keeping in mind that legal arguments frequently serve as a disguise for more important political claims. In its presentation, Israel made two strong points relevant to the final ruling but less effective with regard to the provisional measures requested by South Africa: (1) that it did not initiate the current military clashes but was acting in response to an attack by Hamas, and therefore it was pushed into action with no pre-meditation and against its will. In these circumstances, intent to commit genocide could not have been its motivation, and (2) that statements made by various individuals including senior politicians were not formal policies. Only official statements and instructions issued by the government, war cabinet, and military command, transmitted through official channels, were relevant for evaluating state policies for the purpose of identifying intent to commit genocide.

These arguments can be countered by pointing out that regardless of the trigger for the Israeli onslaught, there is never a justification for committing genocide, and that statements, both official and unofficial, that create an atmosphere conducive for committing war crimes and genocide constitute incitement that is itself a crime. These counter-arguments may be effective when it comes to provisional measures but not for the charge of genocide itself.

Israel’s weakest arguments revolved around the massive loss of civilian lives, damage to infrastructure, and unprecedented humanitarian crisis (poor to non-existent access to food, health, shelter) directly resulting from its military campaign. Its argument was that these were unfortunate but inevitable results of fighting in densely-populated urban areas that were used by Hamas to shield itself at the expense of civilians. But, even if Israel were acting in self- defense and in response to an unprovoked attack, as it claimed, there would be no legal or moral excuse for indiscriminate attacks on civilians. The damage inflicted with such intensity cannot be explained away by military necessity, and the obviously disproportionate nature of many of the Israeli attacks makes them war crimes. The presence of a few armed militants or some weapons stored in health, educational, and religious facilities cannot possibly justify the huge level of destruction caused by the Israeli onslaught on Gaza.

War crimes are much easier and less controversial to prove than genocide and the correct authority for tackling them is not the ICJ but the International Criminal Court (ICC). Why did South Africa not charge Israeli officials with that offense rather than with genocide then? For two reasons: (1) Israel does not accept the authority of the ICC and would ignore charges submitted to it. But, as a signatory to the genocide convention it cannot treat the ICJ in the same way. And, (2) while legal processes at both the ICC and ICJ normally take a long time to resolve, possibly years, the ICJ may produce fast results by issuing provisional rulings for measures to be taken immediately.

Potentially then, the process can bring about real relief to Gaza residents within a few weeks. In this way, the South African action may be the best and quickest route for alleviating part of the humanitarian catastrophe inflicted by Israel on the population of Gaza, and for this chance alone, the South African government and its legal team deserve full credit. There are grounds to suspect that that was the main intention behind the case, to achieve immediate relief for people independently of the final ruling.

At the same time, it is important to point out weaknesses with the South African submission, which mirror the strengths of the Israeli response. There is insufficient recognition of the gravity of the trigger for the current Israeli onslaught, which was the unprecedented Hamas attack on 7th October 2023. It resulted in around 800 civilian deaths, destruction of communities, the taking of hostages, and the infliction of sexual violence on a large scale, all of which constitute war crimes. This omission is a problem, not only because it ignores the immediate context for the Israeli response, but it also fails to acknowledge the claim to self- defense raised by Israel. Such a claim cannot justify committing war crimes, let alone genocide, by any side, but it cannot be countered effectively – legally or politically – without recognizing and confronting it directly, which South Africa failed to do.

The second weakness in the South African submission is the presentation of evidence of the intent to commit genocide that includes quotations, tweets, selections from speeches made by various individuals, some of whom are playing an official role, others are mere random individuals; some possess military or political influence, others represent themselves. The lack of differentiation between various utterances, their likely implications, and official status, makes it look like a half-baked attempt to pile on as much incriminating evidence as possible without giving careful thought to the legal relevance of each instance (in some cases important, in others negligible to non-existent).

With that said, South Africa made a useful contribution with the introduction of a broader historical context that is needed in order to place its case in a proper framework: 16 years of siege on Gaza, 56 years of occupation, 75 years of ongoing dispossession, starting with the Nakba of 1948. This is crucial background to an informed historical and political analysis of Gaza and its position within the broader Israeli-Palestinian conflict, but its relevance to this specific legal case is less obvious.

Both South Africa and Israel apply a selective approach to the historical context: South Africa recognizes the oppressive political background to the 7th October Hamas attack, and the disastrous follow-up to it, which continues to this day. But the 7th October itself plays a very limited role in shaping its approach. The enormity of the massacre and the way it impacted on Israelis and their Western allies and shaped their actions, all but disappear from view. Israel, for its part, recognizes only the events of 7th October, as if the Hamas attack came out of the blue with no prior Israeli involvement.

The real question, however, is not the historical perspective of the different sides but its legal implications. And here, the South African approach is stronger: the Hamas attack gave Israel the right to deploy military force to defend itself, and it may have given it the right to use offensive measures that included invasion of Gaza in order to fight Hamas, but it did not give it the right to commit war crimes, to launch indiscriminate attacks against civilians and, of course, to commit genocide. By the same token, it should be obvious that resistance to colonial rule or military occupation does not give Hamas or any other Palestinian force the right to commit war crimes either.

In detailing actions by Israel that potentially fall under the definition of genocide – and that, with much less doubt, constitute war crimes – South Africa made its case that the ICJ must intervene to prevent a genocide from taking place even if it cannot determine now (or ever) that it has taken place already. The only response by Israel was that it was already taking all the measures necessary to prevent starvation and spread of disease, to provide sufficient health care, and to take care of the population’s needs for safety, shelter, food, and water. Because of that, it argued, there was no need for the Court to intervene in the situation. Given that all UN agencies on the ground, together with numerous NGOs and most other observers, reject this assessment, and point out to a serious and deteriorating humanitarian crisis, It is very unlikely that the ICJ will accept these self-serving assertions that are backed up solely by the accused party’s own words with no independent evidence to support them.

The measures requested by South Africa are meant to prevent actual or potential genocide from being implemented and they will not be granted in full. Some of them are more likely to be granted than others, so let us discuss them in specific terms, keeping in mind that the Court prefers to reach consensus on its rulings and avoid decisions that would cause a rift among its own members. The first cluster of measures address military operations, the second address the humanitarian situation, the third tackles incitement to genocide. Other measures requested are more technical in nature, having to do with monitoring and reporting duties. Of all these, the Court is likely to approve at least some of the second cluster measures and also the measure regarding incitement, but not the military measures.

The first cluster of measures requested include the cessation by Israel of all activities that involve the use of military force, directed at any members of ‘the group’, without making distinctions between Palestinian civilians and armed militants. The implication is that Israeli forces would not be able to confront or defend themselves against Hamas and other armed groups, forcing a withdrawal of Israel from Gaza (even though withdrawal is not requested specifically). While this may be a laudable goal politically, if endorsed by the Court it will be seen to deny the use of force to one side only and thus leave it vulnerable to the unrestricted use of force by the other side – an outcome that would expose the ICJ to accusations of taking sides in a conflict instead of defending a vulnerable civilian population. Without doubt, such ruling would cause internal conflict between judges, which they would seek to prevent.

With a focus on the civilian population and its vulnerability to genocide, the second cluster of measures stands much greater chance of being approved. This applies in particular to the demands for Israel to remove restrictions on access to adequate food and water, humanitarian assistance, access to fuel, shelter, clothes, hygiene and sanitation, and to medical supplies and assistance. There can be no reasonable objection to these measures, and in any event, Israel denies that it is imposing these restrictions. Whether the approved measures will include prohibition on “the expulsion and forced displacement” of Palestinians from their homes, as requested, is less certain. This tactic is regarded by Israel as essential to its military operation, and the court may not regard it as a humanitarian requirement that stands at the same level as food, shelter, and medical treatment, provided it is seen as a temporary tactic only, to be reversed once active fighting ceases. Possibly, the Court will demand an explicit commitment to that effect.

The issue of incitement is relatively straightforward, obliging Israel to refrain from engaging in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide. The many quotations in the South African submission provide sufficient evidence. Israel should have no problem with this since it claims not to have engaged in any of these activities anyway. But of course, a court order to that effect would confirm that there is at least a potential danger of such engagement even if it has not occurred yet. It would not only be embarrassing politically for Israel but dangerous for its legal case as a precedent, and a serious rebuke of its failure to curb incitement. And yet, it is difficult to see the Court not approving this basic measure. In such a case we would see a huge outcry from Israel and its supporters about the bias displayed towards it.

The bottom line then is that we can expect the ICJ to approve some of the measures requested by South Africa but not call for a cessation of armed action by Israel. Assuming that this is indeed the case, how would the different parties to the conflict re-position themselves? There is no doubt that Israel will reject any ruling that places restrictions on its ability to operate freely in the field and force it to withdraw from Gaza. It will probably comply with the humanitarian provisions in principle thereby improving the situation somewhat, continue to place obstacles on delivery in practice, and pursue its current strategy of lower-intensity warfare as long as it can.

Hamas militants will remain ensconced in their hiding places, launch attacks on Israeli troops, suffer casualties but survive as a coherent force, and retain themselves as the only Palestinian actor with effective political influence in Gaza. The basic balance of forces on the ground will not change in the immediate future: the Israeli military cannot destroy Hamas and Hamas cannot drive the Israeli military out of Gaza.

This stalemate can be broken by one of three dynamics, or some of them in combination: a shift in the Biden administration’s unconditional support for Israel; a shift of Israeli public opinion against the ongoing war; a shift in the policy of pro-Western Arab regimes – Egypt and Jordan in particular – towards Israel.

The US administration has been paying a growing price for its stand on the war, both domestically – disenchantment among more liberal, young, progressive constituencies, threating Biden’s chances of re-election – and globally – increasing tensions in numerous locations in the Middle East threatening regional stability, putting pressure on its allies, increasing support for rival Russian and Chinese partnerships. The price may reach an unsustainable level in the short term, 2-3 months, and force the administration to apply much more pressure on Israel to change course: it clearly has the necessary leverage but has lacked the political will so far. Polite and even stern phone calls would not do the job. Without an open expression of opposition to Israel’s course of action and direct pressure that involves the withdrawal of financial, military, and diplomatic support, there will be no change.

Israeli public opinion is shifting slowly: there is growing disenchantment with the hopes for a resounding victory – the most optimistic estimates by military sources envisage many months of intense fighting on the Hamas front and even more if other fronts open up, Lebanon especially. The sense of national unity and solidarity of the early days after 7th October dissipated almost completely, trust in the political leadership has been waning, and outrage at the incompetence and venality of government, and the blatant idiocy of many of its members, is increasing. The ICJ case has produced much fury against South Africa (which displaced Judith Butler as the prime enemy of self-righteous Israelis – the amount of nonsense written about them in Israel is astounding), as well as self-congratulatory celebration of the performance of the Israeli team, much of its delusional. Yet, there is no sense of relief. Nor is there an expectation that global opinion will shift in favour of Israel. Accusing pretty much the entire world of antisemitism may make people feel they occupy the moral high ground, but it also increases the feelings of helplessness, despair, and depression among Israelis.

All that has not translated yet into a coherent movement with political goals that could meet, if only partially, Palestinian aspirations. But there are signs of a beginning of a move in that direction, growing calls in the press to change course, street protests, dissent in governing circles. The realization that the military campaign is endangering the lives of the Israeli hostages, whose rescue is the prime goal for many, makes them see government’s pursuit of war with no end in sight as increasingly counter-productive and incompatible with the release of the hostages. That those who push for the destruction of Hamas and Palestinian lives at the expense of a hostage/prisoner deal are the right-wing, messianic/settler elements in government, creates an opening for a change, but it would take time to make that link explicit and a basis for political mobilization. A more open expression of dissent from within Israel, and more explicit criticism and direct pressure from the USA, would reinforce each other, and in combination would have a powerful impact. Pressure from friendly Arab regimes would contribute to that, of course.

The Palestinian position is, of course, another crucial element to consider here. While the Palestinian Authority has remained on the sidelines of the entire military campaign, it has been invoked by foreign actors (the US and ‘friendly’ Arab regimes) as potential key player in post-Hamas/post-Israel arrangements in Gaza. But these arrangements are no more than a sketch without substance at this point in time, without the consent of either Israel or Hamas.

Hamas remains the most crucial but also least understood player. Despite its eroding military potential, diplomatically and politically, as well as symbolically, it still is the major force in Palestinian politics. It has managed to restore the Palestinian cause to the attention of the world, and to place it at the centre of regional and global diplomatic efforts, but at a huge cost for itself and, above all, for its constituency – the people of Gaza have been plunged into the worst humanitarian catastrophe in their history, exceeding the Nakba of 1948, without them having had any say in the matter. Israel bears the main responsibility for this disaster, of course, but Hamas must not be allowed to avoid moral and political accountability for the way its actions placed Palestinians in such a predicament.

The degree to which Hamas was fully aware of what the Israeli response would be like, and either accepted that outcome as an inevitable price for its strategy to shake up the scene, or even welcomed it as a way to expose Israeli brutality, is unknown. It is commonly assumed that its attack succeeded militarily far beyond its own expectations: there is no way that the extent of Israeli callousness, incompetence, and lack of preparedness, which contributed to the huge initial Israeli toll, and thus contributed also to the ferocity and scale of the military counter-campaign, could have been foreseen by the Hamas planners. They might well have expected more Israeli resistance and casualties on their side, and fewer Israeli losses as a result, and therefore a less intense retaliation.

All this is still unknown, but there is no doubt that a massive Israeli retaliation campaign that would result in many thousands of civilian deaths in Gaza and destruction of infrastructure on an unprecedented scale were anticipated and were built into the plan. It is clear that Hamas expected a stronger response from its allies, particularly the Lebanese Hezbollah and Iran, who would open other fronts and relieve the military pressure on Gaza. Mass uprisings among Palestinians under Israeli control, and solidarity efforts in Arab countries that would force their regimes to break off relations with Israel were likely also part of the plan that did not materialize. Possibly, fractures in Israeli society as a result of growing protest activities against Netanyahu and his government throughout 2023, and dissent in the ranks of military reserve forces, played a role in the timing of the attack, and may have led to expectations that the Israeli response would be hampered as a result.

In all these respects, it is fairly obvious that Hamas was operating as a rational political actor. Its goals of shaking up the local and regional scenes, forcing the Palestinian issue to the top of the agenda in the Middle East and globally, and positioning itself as the central Palestinian player, all reflect an astute reading of the situation and careful planning, even if some of its assumptions and calculations turned out to have been inaccurate. The image of hate-filled antisemitic religious-fundamentalist psychopaths intent on murder, rape, and destruction for their own sake, common in the Israeli media, does not explain any of the actual planning and impact of the October attack. The methods used were brutal, criminal, horrifying, and cannot be justified, but the aims were political, in line with the aspirations of most Palestinians: gaining their freedom, winning political independence. This explains the high level of support among Palestinians for the attack itself, and it does not necessarily mean support for the atrocities committed in the course of it, nor can it serve to justify them, of course.

Detailed discussion of the nature of the Hamas movement is beyond the scope of this short piece. I have engaged with some aspects of it, looking at core documents in a previous piece. In essence, it is Palestinian nationalist movement that combines Islamic principles in its political programme and pursues its goals with the use of armed force. It cannot be reduced either to its religious ideology or to its armed action, though its military wing carries much influence in its structures. The support it receives from Palestinians is derived primarily from its image as a resolute defender of their national rights – ending the 1967 occupation and implementing the right of return of the 1948 refugees.

While its original Charter from the 1980s contained many antisemitic statements, expressing hostility to Jews, Westerners, Communists, all lumped together as enemies of Islam, there is no indication that its members and supporters regard such beliefs as of any importance. Hamas rose to power with the 2006 Palestinian Authority elections based on a platform that promised to fight government corruption, extend social services, and fight for nationalist goals. Its support in Gaza since then has fluctuated, based on mundane considerations such as its performance in government and record of service delivery, rather than its adherence to scared principles, radical rhetoric, or messianic expectations. If zealous adherence to Islamic principles were the reason for popular support we would expect it to remain constant, which is clearly not the case as polling undertaken on the eve of the 7th October attack shows.

These antisemitic utterances are found neither in its 2006 electoral platform or its document of principles and policies of 2017, which effectively replaced the original Charter, nor in its most recent statement – Our Narrative – released on 21st January 2024, a day after these notes were written. The latest document is an attempt to justify the attack in light of subsequent local and global criticism, but cannot be dismissed as mere act of propaganda. If Hamas sees the need to clear itself of accusations of targeting Jews, killing unarmed civilians, engaging in acts of terrorism and sexual violence, it is obvious that its constituency regards such actions in a negative light, and not celebrate them as a true ‘Jihadi-Nazi-antisemitic’ movement and its adherents would.

There is no concrete indication that the Charter continues to guide Hamas and its members and supporters, if it ever did. Statements to the effect that the Charter makes Hamas a Nazi- like movement, and therefore beyond the pale for any diplomatic or political arrangements in the region, are not grounded in any evidence-based reality.  See here as well.

It is not only that such analysis ignores the key role of the 1948 Nakba and the 1967 occupation in shaping Gaza politics in general and Hamas’s approach in particular, but it overlooks the fact that most Hamas members have never known any reality other than that of living under Israeli domination. Its most senior older leaders (Haniyeh, Sinwar, Deif), were small children in 1967 and effectively lived their entire lives under conditions of military occupation and siege, were formed politically by its ongoing presence, and are primarily responding to it in their actions. No serious analysis can ignore this crucial fact.

In the discussion so far, one important element is missing: the responses of Palestinians living under occupation in the West Bank, and Palestinian citizens of Israel. I hope to be able to discuss this issue in a follow-up to this document and the preceding one.