South Africa has brought charges against Israel before the International Court of Justice (ICJ) for a second time. As before, the allegation is that Israel is committing genocide against the Palestinians (whoever they are). There are a few legal points that are inconsistent with what I think of as justice.
First, Israel is branded as an “occupying power”. What does that mean? Israel has physically taken over control of much of the Gaza strip but has not provided for any entity to take over the administration / government. Neither has anyone else. Being an occupier means, legally, you cannot say you are exercising your right to self-defense (so say some legal authorities). Does that mean a country being attacked across a border (however defined) cannot respond? Does it mean they must only shoot back?
There is a legal principle called “proportional response” that appears to limit any countries response to an attack to something that inflicts ONLY the same amount of damage to their opponent as they suffered. This is a sort of equivalence to the Biblical “eye for an eye”. I do not know of any case where proportional response ever solved a conflict. It also only causes a temporary halt to violence when it is backed by the threat of a more severe action. Violence (war) has been described as a continuation of diplomacy using other means. If you can’t get what you want by talking, use force.
In the case of Hamas, no legal restrictions are recognized by them because Israel is an “occupier”. Hamas claims their right to ‘resist’ occupation overrides ALL other legal obligations. Does the ICJ also think that an occupying power has no rights? Even when the “resistance” attacks targets that are outside the occupied territory?
The UN was formed to try to avoid wars as a means as settling disputes. The decisions of the UN and the Security Council regarding Palestine all call for negotiations to be the route for solving the ongoing conflict. Israel has accepted that idea. The Palestinians have not. The current general assembly of the UN has shown a willingness to accept Palestine as a full member even though there is no readiness to abide by UN charter requirements to live peacefully with neighbors and Palestine has no defined borders.
Wetherhorn 