At the inaugural hearing of the United Nations International Court of Justice, hereinafter ICJ (not to be confused with the International Criminal Court), Israeli ad hoc judge Aaron Barak started very strongly. “The Court totally wrongly imputes Cain's crime to Abel.” Needless to say, for this judge Abel is Israel, unjustly presumed guilty by the Court, and “the other party”, the real Cain, would be Hamas or two million Gazans. We are faced with a case that is both brutally simple to assess, but very complex to present before the ICJ. Surprisingly, Judge Barak, throughout his well-crafted argument, implies that, in his case, the case should have been addressed from the legal instrument of crimes against humanity or war crimes, instead of trying to do so from the overwhelming accusation of genocide. Because? As Professor Alicia Gil y Gil explained a few days ago in an article in El País: “Genocide, a crime that is difficult to prove and commit.” It makes you want to ask: Really? Difficult to commit? Well, if you want to be a real genocide and be judged as such, it won't be easy for you. This professor is completely right, and here we enter fully into the heart of the matter, the Bermuda Triangle that makes up morality, international humanitarian law and wars. If the reader wants to go deeper into this unattractive topic, they can turn to Philipe Sands' book, East-West Street (Anagram), a dazzling publication on how two jurists, Lauterpacht and Lemkin, lay the foundations of this debate that they started. around the Nuremberg trials. They did not know each other when they were children, but they lived on the same street, the East-West street of a city that has experienced many turbulences from the 19th century until today. It is called Lviv (today), it was called Lvov (under the Soviet Union), before that Lemberg (with the Austro-Hungarian Empire), and still in its day Lviv. Without leaving home, a family has lived under several empires, dictatorships, and even today, any afternoon, they can receive Russian bombs.
In short, conventional morality, for the general public, would demand that the greater the violence, the greater the punishment, but the law has its rules, and if it is a law, they are demanding rules. At the Nuremberg trial, at the end of the Second World War, it was about two things: doing justice to the monstrosities experienced, but doing so with a certain prudence. For example, against the Nazis, the new legal types were evident, although, by the way, the court and the prosecutors all belonged to the winning powers. Judge and party in a trial? The world demanded it in some way. But at the same time, the cities of Dresden and Hamburg were devastated in two nights by Allied aircraft, and more than 100,000 civilians died. There were no military installations, or large concentrations of troops. There was a desire for revenge for the bombs dropped on London and Coventry, and a desire to end the war. Look at photos of Berlin in 1945, not one stone was left unturned either. Here we can see the darkest part of this triangle: Nuremberg yes, but from there to converting it into a new form of universal criminal justice, with all the procedural complexity that this entails, there is a way.
Judge Barak, of enormous (and well-deserved) prestige accumulated in his country for decades, lists in his dissenting opinion all the demands that “the Israeli soldier carries in his backpack in matters of the law of war and humanitarian law,” which formally is a considerable load.
But, there is a but. The data provided by Israeli human rights NGOs, which with great merit give us the figures: we are talking about Paz Ahora, BetSelem, and others. The but also includes the images, on networks or television, which leave no room for doubt. The clumsy narrative of the various military spokespersons in their daily lives. Or the sayings and actions of the worst of an Israeli Government (Ministers Ben-Gvir or Smotricht), such as that the ICJ text “for us is toilet paper.” The two million Gazans have to go to the Sinai, or back to the north of the strip, where there is nothing left to destroy, or, the latter, we will put them on an artificial island in the Mediterranean Sea under Israeli military control.
And morality goes down the drain, if we think that the 1,300 Jews murdered on October 7 are a revived holocaust, while the 28,000 Palestinians (50% minors, that is, children) are either collateral damage or Hamas terrorists, or of ISIS. And in the end, in times of war we knew that morality, politics and humanitarian law get along very badly... but how bad?
