It strains credulity to believe
that vengeance against the Palestinian residents of Gaza was not among the motives
of the Israeli government’s ministers in retaliating for the Hamas attack
against occupation on October 7, 2023. Within days, Israel’s president publicly
accused every Palestinian in Gaza of being guilty. Because it cannot be assumed
that every resident of Gaza who had voted Hamas into office was in favor of the
attack, and the residents who had voted for the PLO could even less be assumed
to be supportive of Hamas, the Israeli notion of collective justice is
ethically flawed. Deficient as a subterfuge for the very human instinctual urge
to inflict disproportionate vengeance, the espoused justification did not hold
South Africa off from charging Israel with genocide at the International Court
of Justice (ICJ). At the time, both South Africa and Israel were parties to the
Genocide Convention. Because the ICJ was at the time the principal judicial body
of the United Nations, the UN’s lack of enforcement power—notorious even on
resolutions passed by the Security Council—meant that even a conviction could
send the message that a national government can get away with even genocide.
In its accusation, South Africa
claimed that Israel was “in violation of its obligations under the Genocide
Convention” in that “acts and omissions by Israel . . . are genocidal in
character, as they are committed with the requisite specific intent . . . to
destroy Palestinians in Gaza.”[1]
At the time (at the end of 2023), over 21.5 thousand people had been killed by
Israel in Gaza since October 7, 2023, far outstripping the 1,200 Israelis who
had been killed by Hamas and the 240 hostages during that period.[2]
The disproportionality alone eviscerates claims of retaliation and thus “justice.”
That a significant number of the Palestinians killed were innocents, including children,
and 85 percent of the 2.3 million Palestinians there had been left homeless[3]
and at least as many without sufficient food and medical care supports South
Africa’s claim that “there are ongoing reports of international crimes, such as
crimes against humanity and war crimes, being committed as well as reports that
acts meeting the threshold of genocide or related crimes as defined in the 1948
Convention on the Prevention and Punishment of Genocide, have been and may
still be committed in the context of the ongoing massacres in Gaza.”[4]
Also in the final days of 2023, Israel’s finance minister, Bezalel Smotrich publicly
accused the “2 million people” in Gaza of aspiring “to destroy the State of
Israel” so only a few hundred thousand should be allowed to remain there.[5]
Hence, South Africa’s government stated that it was “gravely concerned with the
plight of civilians caught in the present Israeli attacks on the Gaza Strip due
to the indiscriminate use of force and forcible removal of inhabitants.”[6]
One way to massively decrease population,
the use of “indiscriminate bombing” was, according to U.S. President Biden,
being used by Israel. Even though the unguided bombs could get at Hamas’
underground tunnels, the use of such bombs, especially in a densely populated urban
context, was prohibited by international humanitarian law. American
intelligence assessment suggested “that nearly half of the air-to-ground
munitions that Israel has used . . . have been unguided.”[7]
The Israeli government put out the following statement: “Israel is committed to
international law and acts in accordance with it, and directs its military efforts
only against the Hamas terrorist organization and the other terrorist
organizations cooperating with Hamas.”[8]
Astonishingly, the statement added that Israel had been making “every effort to
limit harm to the non-involved and to allow humanitarian aid to enter the Gaza
Strip.”[9]
This flies in the face of the nearly 2 million residents who had been displaced
from their homes and with the extent of starvation. Just weeks before South
Africa’s application, thousands of Gaza residents desperate for food had mobbed
food-aid trucks in the city of Rafah.[10]
Even Israel’s finance minister admitted that Gaza was a ghetto (so decreasing its
population was justifiable).[11]
Masha Gessen, who won the Hannah Arendt prize for speaking truth to power as
Arendt did during the Eichmann trial, wrote that Gaza is “like a Jewish ghetto
in an Eastern European country occupied by Nazi Germany.”[12]
That Gessen was herself Jewish and had lost ancestors in the Holocaust did not
stop her from “catching hell” for her statement. The presidents of Harvard,
Penn, and MIT also caught hell for asserting that the context (of the war) could
make political speech redressing Israel’s genocide with a corresponding one
against Israel protected as free (rather than hate) speech, while Yale
caved. Even a Yale alum can tip his hat to Harvard in the hope that Yale
might take a lesson rather than fortify its truth, and instead humbly improve.
For its part, the Israeli
government was in denial. As South Africa’s charges were made public, the state
founded for victims of German atrocities had become a victimizer in striking
back with vengeful disproportionality, and yet this was too much for the
vengeful to see in their mirrors. The Israeli government’s Ministry of Foreign
Affairs played the antisemitic card in claiming that South Africa was “calling
for the destruction of the State of Israel,” which was blatantly untrue.[13]
For his part, Prime Minister Netanyahu was saying that the attacks would
continue for months.[14]
Clearly, the Israeli government would dismiss any adverse ruling by the UN’s
court on crimes against humanity leveled this time against Israel. For nothing
short of a brick wall can arrest such stubbornness, especially when it is fueled
by disproportionate vengeance. Yet the UN has shown itself to be utterly
feckless, shirking even from standing up to its own members.
The root of the problem that
enables a government to commit even a genocide with impunity, or invade another
country unprovoked (e.g., Russia) and intentionally bomb civilians, is the
absolutist interpretation of national sovereignty, which had come out of the writings
of Jean Bodin (c. 1529-1596) in Six Books of the Commonwealth. Given the
Reformation-fueled strife of his day, he “was convinced that peace could be
restored only if the sovereign prince was given absolute and indivisible power
of the state.”[15] The
state’s sovereignty was absolute. A century later, Thomas Hobbes carried this political
theory further in Leviathan. To be fully sovereign must include having
the last say on theological doctrine and Biblical interpretation. Hence, the
monarch in Britain is head of the Church of England. In the turbulent sixteenth
and seventeenth centuries in Europe, absolute sovereignty was deemed worth the
risk of the power being abused in tyrannical rule without any internal check.
As for any normative check by other monarchs, none of them would have wanted to
see their own absolute sovereignty impinged by an invading prince from another
realm.
The norm that a government’s rule
is a matter of a country’s internal affairs had survived even into the
twenty-first century. The governments of Russia and China had been the most
explicit in insisting that this norm be universally accepted. With the advent
of human-induced climatic change and modern weapons of mass destruction,
however, we might expect the norm to be challenged, but the ongoing impotence
of the UN and the want of any serious proposals of reform that would involve national
governments giving up some of their sovereignty suggests that the norm still
had considerable staying power and would thus require a lot of energy to be
dislodged from its privileged status as the status quo default. In other words,
even as the harms from unchecked national power have increased tremendously,
Bodin’s theory of absolute sovereignty has remained hegemonic.
So the Israeli government could
simply enunciate false claims and not really have to worry about anything more
than bad public relations from the charges at the International Court of
Justice. Even genocide in retaliation for a much lesser, albeit horrific,
attack could be protected by the sovereignty of the Israeli government.
The silent culprit may be the
diffusion of responsibility globally as the rest of us watch the ongoing dire situation
in Gaza (and Ukraine) as if we were paralyzed from demanding that our
respective governments cede some authority militarily to the UN or a new international
body empowered to enforce its decisions. The governments refusing to go along
could be excluded commercially as well as diplomatically from those who have
been willing to be held accountable themselves and thus cede some sovereignty
in exchange for a voice (and vote) at the global table.
After more than a century of tremendous technological development—my grandfathers, for instance, witnessed the coming of cars, airplanes, radio, television, huge medical advances, and even computers—the retarded condition of political development really stands out—or should stand out—given the increased global interdependence and threats, including the scale of harm that a government can commit by means of military technology. That Nazi Germany could follow the Enlightenment should give us all pause in the trust we place in our governments, including their police and military forces. If we are Kantian rational beings, so too are we capable of tremendous rage that can snuff out what Adam Smith pointed to as the human imagination enabling sympathy for others in a “fellow-feeling.” Both Putin of Russia and Netanyahu of Israel have recourse to tremendous military force and yet arguably little if any sympathy even in the midst of such large-scale, disproportionate suffering. That the two men can get away with continuing to inflict even more suffering as long as they feel like it is reason enough for the defeat of Bodin’s political idea.
2. Ibid.
3. Waffa Shurafa, Bassem Mroue, and Tia Goldenberg, “Israeli Strikes in Central Gaza Kill at Least 35 as Netanyahu Says War Will Continue for Months,” The Huffington Post, December 30, 2023.
4. Pierre Meilhan, Bethlehem Feleke, and Tamar Michaelis, “South Africa Files Genocide Case Against Israel at International Court of Justice Over Gaza War,” CNN.com, December 29, 2023.
5. Sanjana Karanth, “Senior Far-Right Israeli Official Admits Gaza Is A ‘Ghetto’ for Palestinians,” The Huffington Post, December 31, 2023.
6. Pierre Meilhan, Bethlehem Feleke, and Tamar Michaelis, “South Africa Files Genocide Case Against Israel at International Court of Justice Over Gaza War,” CNN.com, December 29, 2023.
7. Ibid.
8. Ibid.
9. Ibid.
10. “Chaotic Scenes as People Run after Lorries Carrying Aid in Gaza,” BBC, December 27, 2023.
11. Sanjana Karanth, “Senior Far-Right Israeli Official Admits Gaza Is A ‘Ghetto’ for Palestinians,” The Huffington Post, December 31, 2023.
12. David Mouriquand, “Author Masha Gessen Receives German Prize Despite Comments Comparing Gaza to Nazi-era Ghettos,” Euronews, December 18, 2023.
13. Pierre Meilhan, Bethlehem Feleke, and Tamar Michaelis, “South Africa Files Genocide Case Against Israel at International Court of Justice Over Gaza War,” CNN.com, December 29, 2023.
14. Waffa Shurafa, Bassem Mroue, and Tia Goldenberg, “Israeli Strikes in Central Gaza Kill at Least 35 as Netanyahu Says War Will Continue for Months,” The Huffington Post, December 30, 2023.
15. “Jean Bodin,” Internet Encyclopedia of Philosophy.
