On the ICJ (SOUTH AFRICA v. ISRAEL)
Housekeeping: first, my blogging will be soft next week because I will be participating in and presenting at "Is Philosophy Useful for Science, and/or Vice Versa?" a celebration of the first year of the Doctor of Science program in Mathematics, Philosophy and Physics (MPP) at Chapman University. For the program and the neat conference poster see here. Second, Don Howard commented extensively on my chapter in his review of Ernest Nagel: Philosophy of Science and the Fight for Clarity, edited by Matthias Neuber & Ádám Tuboly in “Philosophy of Science” (here). His praise is especially nice because Don and I disagree, and i have admired him since I met him a quarter century ago at my first graduate student conference at Notre Dame.
Despite the relatively wide readership of my essays (here; here; here; here) on the Israeli/Hamas/Palestinian conflict since October, I have, despite my Zionism, been hesitant to speak my mind on it while the fighting has been unfolding, as I have explained in my most recent post which was written in a temporary lull in the fighting. However, the “Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)” by the International Court of Justice (ICJ) is a useful occasion.
In my view the ICJ produced a rather prudential order. First, by not calling for an immediate cease-fire, it continued to respect the right of states to defend itself. If it had done otherwise, it probably would have made itself irrelevant because (i) its order would have been ignored (it lacks the capacity to enforce its own judgments) and (ii) over time it would have risked many of the most important states’ eventual withdrawal from the convention.
Since Hamas is not a party to the convention, it’s also not obvious how an imposed/ordered cease-fire would or could, in fact, work. Of course, such prudence comes at a cost because it also re-indicates the fragile status of the convention as has been clear, alas, for decades now.
Second, while in its brief “South Africa unequivocally condemns…the taking of hostages on 7 October 2023” and it quotes the United Nations Security Council Resolution 2712 (2023) that for “the immediate and unconditional release of all hostages held by Hamas and other groups,” its application to the court did not actually manage to make this demand. The ICJ itself wisely corrects that omission, and concludes its order as follows:
Third, one of the most salutary features of the order is that it reminds Israeli politicians that their “statements” matter to how the facts on the ground are interpreted by outsiders to the conflict because they go to the heart of the status of intent behind the current war in Gaza. The leadership of the Israeli political class has not much distinguished itself in wisdom and prudence during the past decade, but the ongoing inflammatory statements in the aftermath of 7 October are clearly imperiling Israel’s standing at the court.
Hopefully the court’s order encourages a dialing back of statements that can be reasonably be thought of as “incitement” to mass murder and mass destruction, and inject a more sober rhetoric from state organs and officials. True friends of democracy know how difficult this is in the context of an increasingly fragile coalition government, and an angry and fearful populace. But political rhetoric has multiple audiences, and the ICJ quite rightly does not give officeholders a pass on it. This is also one part of the judgment that received the vote of the Israeli ad hoc judge.
Fourth, the quoted passage is also useful in another sense in that it correctly puts the focus on the evident ongoing violations of international humanitarian law not the least the fact that the “provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip” ought to be a priority alongside, alas, the fighting. (This, too, received the vote of the Israeli ad hoc judge.)
Finally, my own view is that overall the court’s order also channels the more general and widely felt unease over the manner in which Israel has conducted the Gaza operation even among those that wish for it to defeat an Iranian proxy. It was not a war that Israel was prepared to fight or had properly planned for; its war-aims and execution have accordingly been unimpressive most reminiscent of the Russians in Grozny in 1994/5 and 1999/2000.
While Hamas is clearly a very well organized and well armed militia, it is no match for Israeli fighting power. It has been unable to defend its own population, and — guessing by numbers released from all sides — it loses about 40 fighters for each Israeli casualty.* And while it (and its supporters) like to present it as a decolonial liberation movement, Hamas lacks a strategic hinterland in this conflict. As I noted before, in this war time is not on its side. The best that friends of Palestinian self determination can hope for right now is that the unfolding disaster in Gaza will unfreeze internal Palestinian politics and eventually create a receptivity toward fresh thinking.
Unfortunately, Israel has no well thought out plan for ‘the day after’ and so this, too, shapes its actions on the battle-field. In particular, there is a persistent unwillingness to face up to what I take to be the most important lesson of October 7 (as I noted on the day after): even a decisive military victory over Hamas, which is still no foregone conclusion, will be squandered if there are no political aims that include the flourishing and dignity of Palestinians. For, absent Palestinian buy-in, the safety of Jews in Israel turns out to be an illusion.
This lack of a thought out plan is the effect of the ongoing strategic ambiguities that has plagued Zionism for several generations now. There are seven structural and longstanding weaknesses (regular readers are familiar with my stance on this): i) the failure to establish permanent borders for the state of Israel; (ii) the inability to settle what kind of political entity Israel should be so that it can end its near-permanent war-footing and settler occupation of hostile populations; (iii) (the perception of) Israel's dependence on America's political and military support, which ties Israel to America's strategic interests and electoral politics, while (iv) allowing a split between the interests of Zionism and American Jewry to develop; (v) Israel’s failure to provide Palestinians with positive incentives and symbolic declarations to come to peace with Israel; (vi) leading Israelis evidently came to believe their own myths about Palestinian irrelevance, and have allowed tactical and financial gains to to overshadow long-term interests; (vii) Israel has backed itself into a corner where it encourages ever more spectacular violence against it without any end in sight, and where attempts to reverse the cycle of repression will be felt and perceived as weakness.
I repeat the material in the previous paragraph regularly because it is a duty of philosophy, when it adopts a party-position (as I do qua Zionist) to contribute to critical self-understanding. As regular readers know, I argue that Israel’s political class can do a lot more to encourage a resolution of the conflict and acknowledge the aspirations of individual Palestinians (not the least by instituting programs of generous compensation and support for Palestinian civic society) without risking its security, or signaling weakness.
The ICJ’s Court order invites a generous interpretation of Israel’s duties under international humanitarian law and it provides, thereby, an opportunity to signal to ordinary Palestinians, and their allies, that one is willing to take their lives and aspirations seriously. How one fights a war is itself one of the means to the day after. That the ICJ gave Israel a month to “submit a report to the Court on all measures taken to give effect to its Order,” allows Israel to change course in its tactics without losing face. And also to use what it has learned on the battle-field to fight more wisely and prudentially.
From the perspective of ordinary Palestinians in the midst of a humanitarian crisis the ICJ Order is not much help or consolation. The ICJ rightly highlights the many imminent risks they face in Gaza, and Israel’s duties in minimizing them. War is brutal, and it reflects the past failure in the art of government and diplomacy. It’s not cowardice or foolish to acknowledge this failure.