It should be obvious to anyone with even rudimentary knowledge of the Gaza war that Israel is not committing genocide there, or anything even remotely akin to it. In response to such spurious accusations, it’s often best to focus on the mockery they make of international law itself, or on how Israel can most effectively combat them. Still, it is also worth stopping to consider the legal case on its own terms. No one has done this quite so effectively, to my knowledge, as the Ugandan jurist Julia Sebutinde, who is the vice-president of the ICJ and the only one of its judges to rule unequivocally in Israel’s favor both in this case and in the previous one where it found accusations of genocide “plausible.”

Sebutinde begins by questioning the appropriateness of the court ruling on this issue at all:

Once again, South Africa has invited the Court to micromanage the conduct of hostilities between Israel and Hamas. Such hostilities are exclusively governed by the laws of war (international humanitarian law) and international human-rights law, areas where the Court lacks jurisdiction in this case.

The Court should also avoid trying to enforce its own orders. . . . Is the Court going to reaffirm its earlier provisional measures every time a party runs to it with allegations of a breach of its provisional measures? I should think not.

Sebutinde also emphasizes the absurdity of hearing this case after Israel has taken “multiple concrete actions” to alleviate the suffering of Gazan civilians since the ICJ’s last ruling. In fact, she points out, “the evidence actually shows a gradual improvement in the humanitarian situation in Gaza since the Court’s order.” She brings much evidence in support of these points.

She concludes her dissent by highlighting the procedural irregularities of the case, including a complete failure to respect the basic rights of the accused:

I find it necessary to note my serious concerns regarding the manner in which South Africa’s request and incidental oral hearings were managed by the Court, resulting in Israel not having sufficient time to file its written observations on the request. In my view, the Court should have consented to Israel’s request to postpone the oral hearings to the following week to allow for Israel to have sufficient time to fully respond to South Africa’s request and engage counsel. Regrettably, as a result of the exceptionally abbreviated timeframe for the hearings, Israel could not be represented by its chosen counsel, who were unavailable on the dates scheduled by the Court.

It is also regrettable that Israel was required to respond to a question posed by a member of the Court over the Jewish Sabbath. The Court’s decisions in this respect bear upon the procedural equality between the parties and the good administration of justice by the Court.

As this newsletter noted last week, Gaza is not suffering from famine, and the efforts to suggest that it is—which have been going on since at least the beginning of last year—are based on deliberate manipulation of the data. Nor, as Shany Mor explains, does international law require Israel to feed its enemies:

Article 23 of the Fourth Geneva Convention does oblige High Contracting Parties to allow for the free passage of medical and religious supplies along with “essential foodstuff, clothing, and tonics intended for children under fifteen” for the civilians of another High Contracting Party, as long as there is no serious reason for fearing that “the consignments may be diverted from their destination,” or “that a definite advantage may accrue to the military efforts or economy of the enemy” by the provision.

The Hamas regime in Gaza is, of course, not a High Contracting Party, and, more importantly, Israel has reason to fear both that aid provisions are diverted by Hamas and that a direct advantage is accrued to it by such diversions. Not only does Hamas take provisions for its own forces, but its authorities sell provisions donated by foreign bodies and use the money to finance its war. It’s notable that the first reports of Hamas’s financial difficulties emerged only in the past few weeks, once provisions were blocked.

Yet, since the war began, even European states considered friendly to Israel have repeatedly demanded that Israel “allow unhindered passage of humanitarian aid” and refrain from seizing territory or imposing “demographic change”—which means, in practice, that Gazan civilians can’t seek refuge abroad. These principles don’t merely constitute a separate system of international law that applies only to Israel, but prolong the suffering of the people they are ostensibly meant to protect:

By insisting that Hamas can’t lose any territory in the war it launched, the international community has invented a norm that never before existed and removed one of the few levers Israel has to pressure it to end the war and release the hostages.

These commitments have . . . made the plight of the hostages much worse and much longer. They made the war much longer than necessary and much deadlier for both sides. And they locked a large civilian population in a war zone where the de-facto governing authority was not only indifferent to civilian losses on its own side, but actually had much to gain by it.