When Prime Minister Benjamin Netanyahu implored the troops and the nation to “remember what Amalek did to you,” he was citing a biblical argument for acting indiscriminately, and his colleagues have dutifully followed this pattern of collapsing the crucial distinction between civilian and combatant, between war and vengeance. “We will eliminate everything,” said Defense Minister Yoav Gallant, erasing the line between Hamas and not-Hamas. Finance Minister Bezalel Smotrich did the same with his appeal to “take down Gaza,” as did National Security Minister Itamar Ben-Gvir when he described the whole Gazan population, guilty or otherwise, as “terrorists.” As Malcolm Shaw, an international lawyer on the Israeli team, conceded, each of these men are the principals of the “war Cabinet” that has the power to shape state policy and issue direct orders. Yet Shaw characterized South African lawyer Tembeka Ngcukaitobi’s thorough recitation of these quotes as “little beyond random assertions,” insisting instead that these were rash statements pronounced in a moment of national trauma. Better, Shaw said, to give more weight to the panicked statements of exculpation made by Netanyahu and others in the week before the ICJ hearings.
(Not unrelatedly: Parties to ICJ disputes are allowed to appoint their own ad hoc judge to bulk up the usual 15-member panel. Israel nominated Aharon Barak, former president of the Supreme Court, who solemnly swore to exercise his powers “honorably, faithfully,” and “impartially.” On November 1, Barak stated, “I agree totally with what the government is doing.” Square that circle.)
Throughout the four-hour hearing, Israel’s legal team referred again and again to Hamas, to its atrocities, to its “genocidal” desire to end all Jewish life. This is the rhetorical crutch—a wind-up toy’s mechanical catchphrase—for committed defenders of Israel’s conduct in Gaza, and the early speeches looked more like a boisterous propaganda effort than a calm legal appeal. Yet the constant drawing of attention away from Israel’s actions and toward those of Hamas also had a subtle legal function. At the core of Israel’s arguments on Friday was a form of blackmail: a polite, legal, and deferential kind of blackmail, but blackmail nonetheless.