In a JNS op-ed, defense lawyer and board member of the Jewish Community of Oporto, Portugal David Garrett says that “B’nai B’rith International was quite right when it said that if charges of genocide are to come before the ICJ, the court should immediately declare Hamas guilty of genocide.” Read the article at JNS.org.

Three months after Hamas subjected Israel to the worst massacre of Jews since the Holocaust, Israel is being tried for genocide at the International Court of Justice (ICJ).

However, it is Hamas that is guilty of genocide insomuch as the 1948 United Nations Convention on Genocide defines genocide as a crime committed with the intent to destroy in whole or in part “a national, ethnic, racial or religious group.” This is clearly what happened on Oct. 7. B’nai B’rith International was quite right when it said that if charges of genocide are to come before the ICJ, the court should immediately declare Hamas guilty of genocide.

South Africa’s assault on Israel at the ICJ is an abuse of the principles underlying the international legal order that was created after and because of the Holocaust. Indeed, the South African petition did not even mention the word “Hamas.” It appears that, to South Africa, the terrorist movement does not exist. This is pure denialism. After all, if Hamas does not exist, then the Oct. 7 massacre does not either.

Nor, it seems, do the IDF’s efforts to avoid civilian casualties or Israeli leaders’ attempts to relieve the humanitarian crisis in Gaza—even though humanitarian aid is routinely stolen by Hamas for terrorist purposes.

One must ask why Israel agreed to engage in the ICJ proceeding in the first place. On Jan. 9, Israeli President Isaac Herzog promised that Israel would “proudly” present its case and argue that it is engaged in “legitimate defense under our most inherent right to international humanitarian law.” This is a mistake. In effect, the Jewish state agreed to take part in a farcical and defamatory procedure. The image this conveys is that of a state on its knees rather than a strong and independent nation.

Even if Israel wins this legal battle, others will follow. The reason is obvious: Israel simply cannot fully protect a population that the aggressor uses as a massive human shield. The world wants to claim that Israel has “the right to defend itself” subject to requirements that are impossible to meet. Israel is expected to fight a war without fighting it; to fight for the right to exist only if it does not exercise that right.

Ironically, in many ways it was the Jews who created the concept of the rule of law, mandating the setting up of “righteous courts” in the Noahide laws, which apply to all the world.  This demands a justice system with honest laws and fair judges. In no other forum is good faith and truth so important. They are the true prerequisites of justice. They are the only way to replace brute force with righteousness.

The Oct. 7 massacre did not begin in 2023 but millennia ago. Its cry is the same cry as the Shoah. The same cry of Hebron, Kishinev, Odesa, Bern, Troyes, Paris, Trent, Norwich, York, Metz, Erfurt, Worms, Cologne, Strasburg, Überlingen, Basel, Lisbon, Barcelona, Toledo, Madrid, Seville, Granada, Alexandria and so many other places.

The future of the State of Israel, the Jew among the nations, depends on cleaving to its traditional values. From the beginning, these values were never intended to be those of the Assyrians, Persians or Greeks—or any other foreign people. Jewish history shows that empires come and go. Today’s good may be tomorrow’s evil and vice-versa. Joseph was viceroy of all Egypt, but only a few decades later his people were enslaved.

Israel has been fighting for its values for centuries and will do the same far into the future, in whatever forum it is necessary to do so, but it should not do so in places and contexts where fraud has replaced the law.

Op-ed by David Garrett, a defense lawyer and board member of the Jewish Community of Oporto, Portugal.