International Court of Justice: Who won and who lost

Fredericton synaogogue
An estimated 350 people rallied in support of the Fredericton synagogue on Sunday Jan. 28, 2023 after vandals smashed the glass of the Sgoolai Israel congregation's front door during Shabbat. (Kelly Newman photo)

What did Friday’s International Court of Justice ruling mean? Did Israel actually get convicted of carrying out genocide on the Palestinian people in Gaza during its three-month military campaign that began when Hamas attacked Israel on Oct. 7? Why did Israel’s own judge on the panel, Aharon Barak, vote against his country in some rulings? And what happens now?

While the ICJ didn’t tell Israel to stop the war, it also didn’t throw out South Africa’s genocide charges altogether: they could be something the court looks into down the road.

The ruling worries Canadian human rights lawyer Tamara Kronis, who fears it gives Jew haters around Canada even more ammunition to ramp up their public protests and hateful attacks, like the one this past weekend against a synagogue in Fredericton, N.B.

Kronis has worked as a prosecutor in The Hague. She wasn’t expecting the ICJ to come back with a ruling so soon. South Africa and Israel put forward their oral arguments before the 17 judges only two weeks earlier.

Kronis returns to The CJN Daily with an insider’s analysis of the ICJ’s provisional measures imposed on Israel—and what happens next.

What we talked about:

  • Hear Tamara Kronis explain how the UN’s International Court of Justice works, and what was at stake for Israel, on The CJN Daily from earlier in January 2024
  • Read Canada’s official reaction to the ICJ ruling in The CJN
  • Watch the taped video showing the ICJ presiding judge read their ruling on imposing provisional measures against Israel
  • Read more about how Fredericton is reacting to the vandalism on the city’s only synagogue in The CJN, and donate to help the synagogue carry out repairs and install a security system

Transcript:

Rabbi Yoseph Goldman: And so the message is very clear of the Bible and that’s the message that I shared yesterday with the community, which is that anybody who comes in support of the Jewish community, it doesn’t matter if they saved a life.

It doesn’t matter if they even said good morning when nobody else would say good morning to us and would cross over to the other side of the street.

We appreciate every single tiny little show of support to the Jewish people.

Ellin Bessner: That’s what it sounded like Sunday afternoon in Fredericton at the vandalized Sgoolai Israel synagogue as the rabbi Yosef Goldman, thanked about 350 people from New Brunswick who had come to literally link arms and show solidarity with his Jewish community. The rally was held just a day after it was discovered that somebody had smashed the glass window panes in the synagogue’s front entrance.Now they’ve since been fixed, but the significance of the attack was not lost on anyone.It was done on the Jewish Sabbath and also on the solemn day when the world remembers the liberation of Auschwitz. It also happened just hours after the International Court of Justice in the Hague’s provisional ruling came out which told Israel to make sure it doesn’t commit genocide in Gaza,that Israel has to save all evidence that plausibly might be proof of genocide and also has to do something to help the pregnant Palestinian women including allowing in more humanitarian aid, although the court didn’t order the Israel Defense Force to immediately stop its military campaign.

It just told Israel to make sure it maintains international law.

Canadian human rights lawyer, Tamara Kronis feels this ruling leaves it open to misleading interpretations of whether Israel is guilty or innocent:

Tamara Kronis: From a weaponization of this stuff in Canada perspective, I just feel like there’s going to be, the protests are going to get bigger.

Ellin Bessner: I’m Ellin Bessner and this is what Jewish Canada sounds like for Monday, January the 29th, 2024. Welcome to the CJ N Daily, a podcast of The Canadian Jewish news sponsored by Metropia.

Well, hi folks. It’s good to be back on the air after a long bout of the flu that knocked my voice out and kept me in bed for over a week as you can hear. The voice isn’t back 100% but back enough to get me back to work covering this historic moment of the International Court of Justice ruling that was handed down three days ago on January the 26th and what it means for Israel, for the world and for you here at home.

The court did call for the immediate release of the Israeli hostages.

It didn’t say whether Israel was or was not committing genocide.

But the judge is worried that if they didn’t order provisional measures right away, it would take too long for any proper investigation of these allegations.

And the judges felt that the risk to the Palestinians now who are being irreparably harmed by situations that could maybe fall under the Genocide Convention was too great.

So, was the ruling good news or was it bad news?

And what happens now?

We’re joined once again by human rights lawyer, Tamara Kronis of Nanaimo B.C. Two weeks ago when we first spoke to her about how the whole international Court of Justice works, she predicted we wouldn’t get the court’s interim ruling about this for months.

Welcome back to The CJN Daily. 

Tamara Kronis: Thanks so much for having me.

Ellin Bessner: Before we get into what it means, what was your expectation when you heard that after only two weeks since the Israelis and South Africans made their statements in the court, they had a decision?

Tamara Kronis: So part of me was definitely worried about that.

I mean, you’ll recall that when we last spoke, I expected that the court would take longer. And it’s funny because that was something I reflected on after our conversation and thought that maybe, you know, maybe it was possible that it would take less time because of the earlier precedent with Gambia and Myanmar, that a lot of the hard questions around standing had already been established.

And I think we do see that play out in this decision.

I think we see a court that’s not dealing with this for the first time.

And so therefore, was able to get a decision out faster.

Ellin Bessner: So what did the court decide?

Tamara Kronis: The first thing to know is that this is Stage One of three that are going to occur in connection with this case.

So this decision does not rule on whether Israel has committed genocide in Gaza.

What it does do is address South Africa’s request for temporary measures while the court hears the case.

So this is round one. The next round in this is going to be an opportunity for Israel to raise jurisdictional and preliminary matters and South Africa may have some too. But I expect that the next stage will be mostly issues raised by Israel. And then after the preliminary matters are dealt with, then what will happen is, is there will be a hearing on the merits and a decision on the merits of the question of whether or not Israel is committing genocide in Gaza.

Ellin Bessner: That’s how long away from those?

Tamara Kronis: It’s not in the next month. This is years down the road probably. The timelines in the past have been in the sort of 10 year range, which means that this issue is going to be one that our communities are going to have to live with for some time.

Both Canadian communities, global communities, Jewish communities, non-Jewish communities.The question of whether Israel is committing genocide in Gaza is going to be a question that is going to be debated in society for a long time and it’s something we’re going to have to get used to and that’s going to be very difficult.

Ellin Bessner: The very fact that Israel did not get this case thrown out right at the beginning, that South Africa didn’t have a case, is a loss. It’s a big win for the other side. And for human rights for the Palestinians and those groups, but it’s a very big loss for the Israeli government and for people who said that it’s a ridiculous spurious case.

Tamara Kronis: I think it depends on how you look at it.

So making the analogy to just a case of domestic homicide, it would be unusual to be in a situation where there was a dead body and there was no murder trial or there was no trial of any kind.

And so in this particular case, we do have an international armed conflict, we do have people dying. We do have a state entity that has come before the court and said, ‘I think there’s an issue with respect to this group of bodies and, and injuries.’

And so the fact that there is a trial doesn’t mean that there will be a conviction.

And I think that we need to recognize that justice doesn’t just need to be done.

It also needs to be seen to be done. And sometimes that involves a process and that involves a hearing.

Lots of people would rather that this case never have been brought, but we don’t control who. We don’t.

States have the right to make applications and this application may yet be shown to be devoid of merit.

But that doesn’t mean that it is unworthy of analysis.

And that’s a really important distinction to make.

These are important conversations to be had.

And if Hamas were a state actor, Israel could be bringing the exact same case in the opposite direction about October 7th.

So there will be people who will claim victory and will claim that the very fact that this trial is taking place is an indictment of Israel.

I think the more realistic way to look at it is that there is a process and we’re going to engage in that process.

And Israel believes that it’s going to be vindicated on the evidence.

And it is important for Israel to bring that evidence and make that case.

And for people to remember that when you have a process like this, there is supposed to be a presumption of innocence until there’s a conviction.

And so it’s wonderful to be an armchair quarterback and to weigh the evidence and to think it through.

But at the end of the day, the power to decide whether or not there has been genocide here rests with the ICJ and it rests with the justices that we heard from this morning.

Ellin Bessner: Ok. You talked about evidence. That reminds me: when the judge was reading out the rationale, they didn’t mention any of Israel’s defence that its team had made. It was only using UN and UNRWA and WHO information. And basically this is the South African case. When you hear that UNRWA is so discredited. And a lot of Jewish people would say all the UN General Assembly, everybody is so anti-Israel and yet this is the kind of statements that they’re relying on to make their decisions.

You worked there. How does that sit with you?

Tamara Kronis: I hear where people are coming from and I know that people are scared but the ICJ did not condemn Israel today.

They didn’t order a cease fire and they did not do any of the things that I think people were worried about. What they did was that they pointed out that there are inflammatory statements that have been made by Israeli officials. There are people suffering in Gaza. There have been people who have been suffering in Israel as well, and I think that you can find anything you want in this decision. And I think that on its own was a way of the ICJ to say “We’re not going to be anybody’s shill, we’re actually staying out of this.”

Ellin Bessner: They did not condemn Hamas. They did not condemn the attack at all, any of it.

Tamara Kronis: No, but they did recognize it. They also didn’t condemn Israel’s actions either.

There was a recognition. What I really found striking about this decision is, and maybe this is one of the reasons why they were able to get it out faster, that they used everybody’s own facts.

They used Hamas’s numbers, they didn’t change them.

So Hamas can’t accuse the court of changing their numbers.

They use Israel’s numbers and they didn’t change them.

And so Israel can’t accuse the court of changing their numbers.

There was a recognition that there is a lot of human suffering in Gaza, which there is, I mean, there is. There is no question. And the other, thing that there was in the decision, which I thought was really interesting: there was an absolutely unnecessary statement about the hostages that I found to be very reassuring.

The court said that they are gravely concerned about the fate of the hostages abducted during the attack. There was clarity that they were held by Hamas and other armed groups.

And so there was a recognition that this has spread beyond Hamas that Hamas aren’t the only bad guys and there was a call for their immediate and unconditional release.

And so I read the decision today as having been very, very, very carefully rendered.

So yes, they used South Africa’s evidence, but South African got much less than it asked for.

I mean, it asked for an immediate ceasefire and the fact that they used South Africa’s evidence to get to that conclusion, is actually, I think in some ways that’s a strong thing.

If if based on their side of the story, this is the best they could do.

Then that actually, I think, is arguably helpful to the Israeli side.

I think another thing that was helpful to the Israeli side is remember that South Africa went to this arguing that this case started in 1948.

And what was very clear from the judgment of the court today is that for the court, this started on October 7th and there’s a recognition of what happened on October 7th.

So for those that want to deny that Hamas attacked on October 7th, that Hamas killed more than 1,200 Israelis, that Hamas wounded a number of other people, or who want to deny that the hostages were taken.

There is something here that stops that and that is that is helpful.

So if you look at it, there was an acknowledgement of the Hamas attack, there was a very careful process where they established that the ICJ has jurisdiction and then what they did is they refused to remove the case from the list.

So the standard for that, I think it’s really important to remember, is very, very low.

The standard here is plausibility.

So what the what the court determined was that, in the wake of a number of statements that were made by Israeli officials, [Defense Minister Yoav] Gallant’s order of a complete siege, there was an [President Isaac] Herzog statement that, ‘While we’re working for international law, we will reach all places, that the entire nation is responsible.”  [Foreign Minister Israel] Katz’s comment about you know, “Not receiving a single battery or a single drop of water”.

And if you look at that in the context of the fact that, again, think of this as a homicide scene.

There bodies on the ground, there are white lines around them and there are statements that were made.

So is it plausible that genocide has been committed?

Yes, that’s what the court is saying, but that’s a very, very low standard.

And so for anyone to jump from that to say that there has been genocide committed, that would be sort of a violation of the idea that you’re innocent until you’re proven guilty.

What they basically decided was that there is plausibility here. That there is a recognition here of the Palestinian people and there is a real sign here that while there is a recognition of the pain that exists in the Gaza Strip, that while there are risks that come from the conditions that are there, this court is not going to be a shill for anybody.

And so they, they said that while conditions for provisional measures exist, that they, the court, had power to put in provisional measures that were different than those requested.

And so it is significant that there is no call for a cease fire here.

And really the statement that the court makes that Israel must take all measures within its power to prevent genocide–that was already true.

Ellin Bessner: These people that made statements. Doesn’t the government, the Israeli government, have its own way of prosecuting or dealing in-house with these, in terms of war crimes?

So it’s not over, even if the ICJ says, “Hey, muzzle your guys, stop making them, [say] crazy things.” Israel has to now act internally, does it not, and prosecute these people for saying things?

Tamara Kronis: So this is what I mean on one level when I say that this decision doesn’t actually say anything new. Israel was always obligated to prosecute people internally who commit genocide, which is one of the reasons why [Former Israel Supreme Court Chief Justice, who sat on the ICJ panel, Aharon] Barak could sign on to that decision.

I mean, in Canada, we are calling for our government to prosecute people who call for the genocide of the Jewish people in Canada.

And we should certainly expect Israel to do the same thing internally.

It’s not unreasonable.

I mean, we’re afraid of [the ICJ ruling] because it’s a decision against Israel, but it’s not an unreasonable thing to ask of a government.

And on one level, the decision here is: abide by international law.

On the other hand, there’s some very clear signals in the decision about what Israel needs to do if it wants to avoid being seen to commit genocide.

So there is a clear indication here that the court would like to see more humanitarian aid happening.

That’s one of the areas where [Aharon] Barak sided with the court, right? There is a message.

Ellin Bessner: Let me stop you. About that for our listeners who didn’t follow it or haven’t seen it.

The [ICJ president] judge was reading out actually the roll call of 

“15 to 2, 15 to 1 in favour of these conditions”.

This is, you know, the former Supreme Court of Israel chief justice who you clerked for,  Aharon Barak.

I thought he’d be the only one voting against them.

There were four or five of these conditions, and then you hear him voting for some of them.

And I was saying, there, “Oh my God!” Walk us through what that meant? What that must have been for him like to vote this way.

And what message was he sending?

Tamara Kronis: I as you know, spent a summer clerking for Aharon Barak and Aharon Barak is also someone who is nobody’s shill and he is a very thoughtful, very measured judge who really thinks things through.

I don’t know what was going through his mind in all of this.

But there is a very clear message here that I think that Judge Barack has sent to the government of Israel. One of the measures that’s been put in place requires the Israeli government to take all measures within its power to prevent and punish the direct and public incitement to commit genocide.

And really what’s being said here is, “You cannot continue to have people say things in public and actually mean something different in private.” Like, bring these people under control, is the message that comes here.

And I think that is a powerful and important message and it is a shot across the bow to the extreme right in Israel.

And I feel like it says we need to get serious about unity here and we need to get serious about recognizing the real humanitarian issues that do exist here. The second thing that Barak signed on to was the requirement to take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assessment.

And I think that this is also an indication that the Israeli government is not doing enough.

There was a thread through the decision that I found particularly interesting.

One of the the circumstances that was called out in the factual rendition of the conditions that exist in the Gaza Strip was that 15% of women who are pregnant and are on the verge of giving birth are in a situation where they could have dire complications.

And when you look at one of the measures, one of the indicia of genocide, it’s around around conditions of birth. I wonder whether or not one of the things that’s being hinted at here is that there might be a possibility that Israel could do more to help these women who are on the verge of giving birth.

And that certainly would be a really interesting innovation or possibility that might come out of this decision.

I think that what the court has adopted here is largely a “We’re going to wait and see” approach.

We’re not dismissing this, we’re not going to tell the Israeli government to stop. We’re going to give them enough rope to forge their own destiny on this genocide situation.

But I think that there needs to be a recognition here of the suffering of 2 million people in the Gaza Strip.

And there needs to be a recognition here that Israel does have the right to defend itself.

But it’s got to be careful in how it does that.

Ellin Bessner: So the one month that you said gives Israel rope. Is that because they have to give, just for our listeners, they have to give a report to the ICJ in a month.

Tamara Kronis: Yeah, I don’t actually read it as you have a month to comply. Or else. What I read it as is we’re not going to prejudge the evidence that there is, that there is a case to be heard here, and no one’s fate is sealed.

I almost feel, to use a religious analogy: today is Rosh Hashanah.

We’ve still got the 10 days before Yom Kippur.

I think more than anything, what the decision today reveals is that this is a live situation.

This is a going concern and there isn’t going to be an order from on high that somehow, just suddenly makes it clear that one side is right or wrong. War is a horrible and messy enterprise.

What I’m very concerned about is that today’s decision gives all sides of the conflict in Canada the opportunity to continue with protests, There is a significant amount of ongoing trauma in the Jewish community and in the Palestinian and Islamic community in Canada.

The real problem with this decision is it is going to provide ammunition to the protests on the streets, that is really going to make people in Canada suffer. And you know, international law should not be weaponized in that way in Canada. And the government has got to figure out how to put a lid on this.

Ellin Bessner: Yeah, like you said, they didn’t say there was genocide but people are going to say: “You see, you see?”

Tamara Kronis: And, that’s what I really worry about. The decision itself is not the problem.It’s going to be the weaponization of the decision by people who want to be very, very, very loud in Canada and as it stands right now, our systems are not set up to keep people safe and to protect them.

And I worry about people’s mental health

Ellin Bessner: Mental and physical health.

Tamara Kronis: The Jewish community is going to suffer for this decision and there’s going to continue to be massive anti-. It is going to be used to justify massive protests and antisemitism in Canada.

It’s an unintended consequence of the decision, but it doesn’t change the fact that it’s going to cause an awful lot of pain.

Ellin Bessner: And it takes all the responsibility away from the UN, away from Egypt, away from the Palestinian authorities.

It puts all the responsibility for everything in terms of how they have to help the civilians, on Israel. The world gets off to do nothing.

Tamara Kronis: Well, sure about that because remember that the world is funding that.

Ellin Bessner: Right.

Tamara: So some of the things we haven’t discussed yet is what is the U.S. going to do?

Ellin Bessner: So when we spoke last time you talked about how if Israel doesn’t comply with whatever the court tells us, it will be a pariah and Israel doesn’t need that because then bigger things happen, geopolitical problems, sanctions, economic trade issues which are really dangerous.

So the ruling on Friday, does that have any immediate consequences in these wider terms?

Tamara Kronis: So, it’s an interesting question and I’m  not sure what the U.S. and France and Germany and Canada and other countries are going to do with this.

There’s a few things. I think the first thing is, the fact that there’s no cease fire requirement, means that that those countries can continue to support Israel’s military operation.

The fact that there is a call for greater humanitarian aid and that there’s a requirement there, means that there’s an opportunity I think to think about some programs that will actually help people on the ground.

I’ve alluded to the fact that there’s this comment about pregnant women and I wonder whether or not that may be an opportunity that that comes through in the wake of this judgment.

I don’t know how to square that circle with the UNRWA situation because if the U.S. has now cut off their aid to UNWRA, the question is, how does that affect humanitarian aid in Gaza and what will happen there?

So I think that it’s complicated. This is still a tangled ball of yarn.

There is a complicated and complex set of questions for Israel and its allies to think through in terms of how they are going to be able to continue to go after the high value military targets that include the tunnels and Hamas’s operation in Gaza.

But it’s clear that if they’re going to continue to do that, they’ve got to do it in a way that does more for the people of Gaza who have been displaced.

Ellin Bessner:  And that’s what Jewish Canada sounds like for this episode of The CJN Daily, sponsored by Metropia. Integrity community quality and customer care.

Now, as for the Fredericton synagogue story, while police are still investigating, a local fundraising campaign collected over $7,000 to help the synagogue pay for repairs and to install security equipment.

Meanwhile, Canada’s annual International Holocaust Remembrance Day ceremony in Ottawa took place last week at the National Holocaust Monument and it was just hours after the interim ruling came out. The timing was not lost on many of the speakers including this powerful call to action by Richard Marceau.

Marceau is Vice president of CIJA, the Center for Israel and Jewish Affairs.

Have a listen and then let me know what you thought of his words.

I’m at [email protected] 

Thanks for listening to the CJ N Daily.

Richard Marceau: What have we learned from those massacres 75 80 years ago? What have we learned as a country, the lessons of the Holocaust ,when schools in Montreal ,Jewish schools are being shot at, when Jewish schools in Toronto are being scared because there’s bomb scares there.

When Jewish students on campus are bullied, and assaulted because they’re Jewish. When people in our streets are calling openly for violence in our streets. Have we as a country learned the lessons of the Holocaust when union flags are flying in support of the Houthis whose mottos are Allah hu Akhbar, death to America, death to Israel.

A curse upon the Jew, victory to Islam?

Is it the kind of country? Have we learned the lessons of the Holocaust when groups like this are supported in our streets, in Canada?

In Toronto? Have we learned the lessons of the Holocaust when the only Jewish country, fighting for its life, is in the box of the accused at the International Court of Justice while it’s defending itself and its citizens against a group, Hamas, which openly says it wants to kill a and exterminate Jews? 

A few years ago, an author that I like Dana Horn wrote a book that I invite all of us to read.

“People love Dead Jews”. Read this book.

It is provocative. Basically, it is saying it is easy to cry over dead Jews.

But where are we when Jews, live Jews, are being attacked?

Are we doing the right things?

Are we saying the right thing?

Are we standing with those Jews being attacked, being bullied?

Are we? 

Are we as a country standing beside the only democracy in the Middle East?

Are we? 

Are we as a society doing this the way we should be doing it?

The real test is not if we cry over the dead Jews, it is, are we standing beside the live ones who are under attack today?

Credits:

The CJN Daily is written and hosted by Ellin Bessner (@ebessner on Twitter). Zachary Kauffman is the producer. Michael Fraiman is the executive producer. Our theme music is by Dov Beck-Levine. Our title sponsor is Metropia. We’re a member of The CJN Podcast Network. To subscribe to this podcast, please watch this video. Donate to The CJN and receive a charitable tax receipt by clicking here. Hear why The CJN is important to me.