The International Court of Justice, the future of Hamas, UNRWA and the Just War.

Ricardo Israel

By: Ricardo Israel - 04/02/2024

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The war in Gaza can be represented with a double helix, in a similar way to DNA, but that is where the similarities end, since, in Gaza, one helix would correspond to what actually happens and the other, to what many "believe." what is happening. From another point of view, in the weeks that have already passed, Israel has won the military part, where in my opinion the destruction of Hamas's military capabilities would be exceeded 50%, with still several months left to complete the objective, but without Without a doubt, it is losing the communication part, demonstrated, for example, in the way the mainstream press (BBC, CNN, NYT) cites Hamas as a source, also in the forgetfulness of the hostages, the origin of the war or the hypocrisy. of the ceasefire, which is a demand only because Israel is winning, etc.

Since the 19th century, thanks to Carl von Clausewitz, we have known that war is the continuation of politics by other means, so the question is whether Israel will have all the time it needs, although its great advantage is that unlike Ukraine has the weapons and the initiative to act militarily, without needing approval from its allies. She also does not have an election ahead of her, which she would also lose today, as is happening to the White House.

Gaza also demonstrates the truth of Chinese strategist and philosopher Sun Tzu's Art of War (approximately 5th century BC) that wars only end when the combatants' will to fight is ended, which clearly has not happened. with Hamas.

With the permission of the US Supreme Court, the International Court of Justice (ICJ) is the most important court in the world. He spoke out with his first opinion on the genocide lawsuit filed by South Africa against Israel. It is a trial that will last years, which should never have been accepted since it clearly expresses double standards, from the moment that it ultimately follows the unfair line of asking Israel for everything, but nothing similar to those who started this war on 7/10. , as are Iran and Hamas, but that is another problem. His decision was better for Israel than it could have expected, since he said nothing about any ceasefire so he did not even try for now to stop its military advance, which probably decided, at the same time, the military future of Israel. Hamas, which, without a prolonged ceasefire, apparently its horizon is going to be only a terrorist movement like ISIS or Al Qaeda, rather than one that is going to control the lives of the inhabitants of Gaza.

The lesson is that one cannot yet speak of success or failure in The Hague, so at this stage it can only be evaluated in relation to expectations, and in that sense he obtained the most important thing, that the resolution did not tie his hands in the military Furthermore, everything indicates that Israel prepared better than on other occasions to face the downpour, both from the point of view of its legal representation and the foreseeable reaction of the world press and on social networks, where it is usually inefficient, just like the US. USA

However, the topic of this presentation was not legal, but rather lawfare, that is, manipulation of the law as well as seeking to embarrass Israel through the media, a bit like what happened in Amnesty International's failed attempt to accuse Israel of apartheid, which ended up becoming a real boomerang for them, since it exposed the ethical crisis of Human Rights NGOs. Now, it is Hamas who has recognized, through Ismail Haniya in Qatar, that the reason for the 7-X massacre was to derail a future agreement with Saudi Arabia.

In any case, the ICJ decision was received by the South African government as if it were a triumph, which confirms that the objective was rather communicational. To begin with, that was the tone of the demonstrations that continue to take place in the West, but not in those that take place in Arab or Islamic streets, where other themes predominate.

Legal times generally do not coincide with those of a war, furthermore, in this case, the fact of having accepted this petition against Israel will surely impact the amount of work that this Court receives, by opening an entire area in around the issue of genocide, for example, for Armenia and Azerbaijan that have just faced each other, once again, over Nagorno Karabakh, and other situations.

Furthermore, this case will necessarily incorporate aspects where Hamas can come out badly, such as the Geneva Conventions or other legislation that specifically concerns itself with the law of war, or also what is legally understood by proportionality, so with a certain It is likely that when the ICJ gets to the bottom of the issue of genocide, it will reach a conclusion that may not please everyone, that legal guilt does not always coincide with the number of deaths, Gaza being one of those cases.

Probably, at the end of the process, Gaza will help confirm the tremendous difference that exists between slaughter and genocide, since, in a war, the slaughter ends when one of the sides stops fighting, while in a genocide that is when the killing begins. This is perhaps what the Court did not understand not only when accepting the case, but also when accessing the communication purpose (lawfare) of almost immediately hearing allegations, which fueled expectations that legally could not yet be met, for example, the ceasefire. .

The International Court of Justice is not just any Court, but the main judicial body of the UN and its function is to decide legal controversies between States. Like any court, it is expected to determine the scope of rights and obligations and to give each of the parties what they are entitled to, with an important addition, that through its rulings it establishes the correct interpretation of the regulations. internationally, with the purpose of strengthening peace.

The press does not always do it, but the best way to evaluate the ICJ is in legal terms, above all, international law. The problem is that even more than what happens with a Supreme Court at the national level, it is a powerful body, very powerful, although as happens with the rest of the international organizations, the great powers do not comply with the rulings that affect them. . This is the case of China with the militarization of islets in the China Sea in a lawsuit that it lost with the Philippines, it is the case of the US having mined ports in Nicaragua in the 80s, as well as Russia in rulings related to the invasion of Ukraine. including the March 2022 order to “immediately” suspend military operations in Ukraine.

That is to say, something that it did not do in the case of Israel, although no one should yet proclaim victory because - we insist - it is going to be a long trial, although we are going to have to get used to it, that like any other issue, they are going to appear by millions of “specialists” who will communicate how much they know after having read 5 or 10 lines on their cell phone.

However, becoming a judge has a serious problem in the ICJ, since the best do not always arrive as there is a double filter, that of being elected by majority in the Assembly, and, secondly, there is a quota, since regional representation is acquired (Europe, Africa, Asia, others), so there are true electoral campaigns, where there are transactions between countries to define their support. For this reason, judges and interested parties are always very aware of their “constituency”, and they are very clear about who has a majority at the international level, which is why, unlike the beginnings of the Court, today there is a growing bias of little sympathy with Israel or the USA

Unlike other types of powerful courts such as the Supreme Courts of countries, the ICJ sees much less of the so-called “right to be forgotten,” where judges forget their commitments to those who elected or appointed them. Finally, what sometimes makes the decision-making process more complex is that, as the culmination of their careers, well-known academics and lawyers who allege on their benches, who, sometimes, are the same people, arrive. There are situations here that ruin predictions and precedents, such as those where these academic and legal eminences often arrive in love with their own theses, which, especially when they have been previously rejected, now that they have power they want to convert them into jurisprudence. They are, therefore, positions that do not modify them when they have to fail.

In the case of Israel, there is no doubt that this judgment will be influenced by another situation at the ICJ, since, since last year, the UN General Assembly has requested that judges rule on the legal consequences of “the occupation.” prolonged, settlements and the annexation of occupied Palestinian territory”, a petition whose wording already conditions the Court, in addition to the fact that 87 countries voted in favor. Arguments are expected soon, and although they are not formally binding, there is no doubt that these opinions are very influential.

If it is strictly legal, in the lawsuit there are three situations that with some probability can appear in the ruling, the first being obviously the issue of genocide, the second is the international legislation that regulates war, and the third, the so-called proportionality.

Furthermore, given the undisputed fact that Israel was not the one that started the war, acceptance by the ICJ carries a certain scent of hypocrisy, considering that the origin of the Court is 1945, and if similar criteria had been used then, they should have The victors of the Second World War were judged, for Hiroshima and Nagasaki, but also for the bombings of German cities. The mere fact that the ICJ accepted it is reminiscent of what took place in the Al-Ahli Hospital in Gaza, where major media outlets accepted Hamas' version that Israel had bombed it and that hundreds were dead. However, the truth soon emerged that it had been a missed missile, fired from inside the hospital, and that the dead were much fewer and the explosion had taken place in the parking lot. That is, instead of proving that he was guilty, Israel had to prove that he was not.

How are they similar? In which, contrary to what corresponds, the burden of proof was completely reversed.

However, it will not be easy for Israel to be convicted of genocide, since this is a very specific crime that not only requires the intention to commit it, but must also be a verifiable activity of elimination of an entire people or extermination. of a human group for reasons such as race, ethnicity, religion or nationality. There are crimes contained in the broadest type of war crimes, but genocide is more specific, much more specific.

Its origin dates back to the Second World War and was created by the Polish jurist Rafael Lemkin and appears in a very precise way to confront the phenomenon of the systematic elimination of the European Jewish community, so much so that even today the Jews do not recover, worldwide, the number they had in 1939, still missing more than a million people. Furthermore, it is still ironic that everything related to this column has coincided with the commemoration of Holocaust Remembrance Day, which is January 27, the day Soviet troops liberated Auschwitz.

But how can there be a genocide if the population increases and does not decrease? Between 1990 and 2022, the Palestinian population increases significantly from 1.98 million to 5.04, that is, 155% in 32 years, 33% more than Israel itself.

As a complement to the above, contrary to what is stated in the slogans on the street, there has not been any widespread massacre, and considering the characteristics of fighting in densely populated places, the deaths are even lower than similar experiences since the world wars. from the last century until today. The situation of the Palestinians of Gaza is terrible, painful and should not have happened, but let us remember that according to the legislation of war, to international law, the greatest responsibility lies with Hamas, not only for having caused the war, but for have taken the fighting to densely populated places, since wars are dynamic and they determined where to fight, that is, exactly the reasons why Nazi Germany was responsible and not the Allied bombings.

The ICJ has asked Israel to avoid genocide and in previous confrontations with Hamas (2009, 2014), then as now, Israel acted with what the Geneva Conventions require, that is, notifying civilians, asking them to move (Israel also displaced around 100,000 of its inhabitants from the border with Lebanon), places where there was no fighting were indicated, etc. Furthermore, this request from the Court should not cause scandal, since it is part of the obligations that are requested in good faith in every trial before the ICJ, when requesting the collaboration of the participants. Now, what corresponds to the judges is to separate international law from the propaganda intentions of the parties.

The second situation that the Court will surely review has to do with the international legislation that regulates the phenomenon of war(s), which is fundamentally included in the Geneva Conventions, and which are expressed in four conventions and their protocols. additional. The first Convention is from 1864 and in general, they have acquired their current appearance in the updates of 1949, as well as the genocide legislation for the Second World War.

They limit Israel, but contrary to what many people who ignore Geneva's obligations believe, they do not harm it, which does happen with the concept of war crime that affects Hamas. This is how he can be considered the first person responsible for this war, not only for having started it, but also for violating protocol 1 article 58, since by governing Gaza he has an affirmative duty to protect and remove the civilian population under his control and always avoid locating military targets within densely populated areas.

Furthermore, Hamas has a duty that comes from Article 28, which says that the presence of civilians cannot be used to make certain places or areas immune from military operations. Hamas does exactly the opposite. Many other provisions can be cited and we do not do so for reasons of space. Let's just say that Hamas repeatedly violates the use of places of religious worship to support the war effort, which is always a war crime under Article 53.

Thirdly, the judges will surely also worry about what has to do with the so-called proportionality, which according to the international law of war, is something different from what is apparently understood among many politicians and journalists, when it does not have has nothing to do with the law of retaliation, that biblical provision of an eye for an eye, since if it were a question of using exactly the same tools, it would fall into the absurdity that to repair the damage caused on 7-X, Israel would have to order dismemberment of corpses, rape and beheading of children, as well as hostages.

No. The principle of proportionality has never talked about it nor has it said that the number of deaths in the response is equal to that received in the original aggression. What it refers to is nothing more nor less than that the level of force that must be used is related to the level of resistance, in no case is the most powerful army asked not to use the means it has to win in the least. possible time and taking care, not to forget, of the lives of its troops.

In every war, innocent people suffer, but what the principle of proportionality seeks is not “an eye for an eye” but rather, if there are consequences for civilians, these should not be the objective, but at most, the so-called “collateral damage.”

However, for now, and as we have pointed out, the Court's first resolution did not harm Israel, and, on the contrary, it did not say anything about the military part of the war, so if it continues as it is, it marks the end of Hamas control over Gaza. In other words, if pressure from the US and other allies does not divert Israel from its objectives, Hamas will be defeated as a military alternative, and its future would be seen more as a global terrorist actor.

In any case, an important one, much more than those franchises that ISIS and Al Qaeda have become. Not only is it a relevant example of something as scarce as Sunni-Shiite war collaboration, but, unlike those named, it has high levels of sympathy in the West, in the liberal media and in universities. Above all, it will be an important element in Iran's strategy of confronting the West at all levels as part of the jihad of political Islam, so Gaza, rather than being remembered as just another war between Israel and the Palestinians, will be also remembered, whether the US and especially Europe accept it or not, as the first of that global confrontation with Jihad.

For its part, the United Nations Agency for Palestine Refugees in the Middle East, UNRWA by its initials in English, is an institution that exists solely to support Palestinian refugees. In fact, the United Nations has two institutions for refugees, UNHCR which cares for all other nations since the Second World War, and UNRWA just for the Palestinians. UNHCR has resettled millions of people, which UNRWA has not done because its objective is precisely that it should not be done, keeping the issue alive, which is why refugee status is even transferred to offspring, even in the case of the daughter of Arafat, who has lived and lives in Paris. By the way, those foreigners who work there have high levels of sympathy for the cause.

Given this situation, it should not be surprising what has happened with the denunciation of those officials, Palestinians who participated in the massacres of October 7, and the use of schools and hospitals for the purposes of the war against Israel. Perhaps non-Palestinian officials have also collaborated indirectly. The complaints have been and are numerous, and an investigation is only being carried out due to the number of countries that are suspending their economic contributions.

Basically, it is part of definitions that were made in 1948 and that have transformed Palestinian refugees into perpetual refugees, without a solution to this day, unlike other situations of the same time that have found solutions, including It is estimated that there was a similar number of Jewish refugees, expelled or forced to leave Arab countries in which they had lived before the appearance of Islam, other refugees who are almost not talked about, due to their rapid resettlement in Israel, without for the UN to participate.

The ICJ and UNRWA are additional examples of the need to address a new architecture for international organizations, since the current ones are costly and inefficient bureaucracies, which reflect the world immediately after 1945, and which in general do not provide solutions. for the realities of the 21st century, including peacekeeping. The natural candidate to address it is the United States, also the main financier, but its division and internal polarization today does not allow it.

In Israel, Netanyahu, and, above all, the extreme ministers of his coalition, have made a mistake by attempting to modify a state policy that has accompanied Israel since its creation, and which is that of the two states. There is no doubt that this is not the time due to the way Hamas dynamited that possibility, not only on October 7, but since its creation by believing in the universal caliphate and not in the solution of the Palestinian problem, which is only a stage. . Israel has demonstrated clarity in the red lines of military action, but it has not been clear in the blue waters of political action.

Nothing changes the fact that Israel did not start this war, and is only doing what any country that had suffered known aggression would do. He is also, and this is increasingly clear, defending the very idea of ​​the West against the holy war waged against it, secondarily for what it does, fundamentally for what it is and represents.

Therefore, this is a war that meets the fundamental criteria of a just war, including its two axes, that of the right or morality to go to war (jus ad bellum) and moral conduct in war (jus in bello).

Just war theory (bellum iustrum) maintains that, although terrible, war is not always the worst option. It aims to determine when a war is morally justifiable and has been studied for many centuries, from theologians to jurists, including the Romans and Christian doctrine.

According to this entire line of thinking, Israel meets all the demanding requirements, each and every one, since, in the vision of the Romans, what happened on October 7 was the “malum in se”, that is, evil in itself, no matter the political justification that is tried to be put forward.

Defeating Hamas, as was once done with Nazism, is the most just of wars.


Master and PhD. in Political Science (Essex), Graduate in Law (Barcelona), Lawyer (U. de Chile), former president of the Armed Forces and Society Committee of the International Political Science Association.

«The opinions published herein are the sole responsibility of its author».