[Guest essay] Israel’s assault on Gaza, the ICJ’s ruling and Germany’s response

Posted on : 2024-02-19 17:00 KST Modified on : 2024-02-19 17:00 KST
Palestinians take shelter after an Israeli air raid on Rafah, in southern Gaza, on Nov. 23, 2023, despite a pause on fighting. (Xinhua/Yonhap)
Palestinians take shelter after an Israeli air raid on Rafah, in southern Gaza, on Nov. 23, 2023, despite a pause on fighting. (Xinhua/Yonhap)

By Marc Herbermann, assistant professor of German language and literature at Kyonggi University 

Few states care about the law, many tremble before power. On Jan. 11, South Africa courageously presented its genocide case against Israel before the International Court of Justice in The Hague. On Jan. 26, the ICJ indicated provisional measures and found that there was plausibility that Israel was committing acts that constitute genocide under the relevant convention. Unimpressed by the ICJ’s interim ruling and calls for restraint from the international community, Israel has been continuing its onslaught, now in the densely populated Rafah.

But what statements and reports about the catastrophe in Gaza are circulating in a country where politicians declare that protecting Israel is a “reason of state”? In a short press release issued on Jan. 12, the German government promptly rejected South Africa’s accusation against Israel on formal grounds but could not present any convincing argument. Prior to this, the German government was remarkable for its numerous trips to the Middle East, but less so for its diplomatic skills and concrete results. 

Resolution A/RES/ES-10/22 adopted by the UN General Assembly on Dec. 12, 2023, demands “an immediate humanitarian ceasefire,” and urges all parties to “comply with their obligations under international law.” It calls for an “immediate and unconditional” hostage release and “humanitarian access.” While 153 states voted in favor of this resolution, Germany abstained, along with the United Kingdom and 21 other states. A few days later, German Foreign Minister Annalena Baerbock and her British counterpart David Cameron called half-heartedly for a kind of conditional ceasefire.

At the end of January, Israel, without sufficient evidence, claimed that employees of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) participated in the attacks on Oct. 7. Germany, together with other allies of Israel, quickly responded. They temporarily suspended funding for UNRWA. But then, as if to brush aside accusations of complicity in acts of genocide, Baerbock said expanding Israel’s offensive into the Gaza border city of Rafah would be unjustifiable. Following the decision of the US government, Germany now approves of EU sanctions against extremist Israeli settlers. After all, it has provided more than 200 million euros for humanitarian aid to Gaza.

One of Germany’s most distinguished living intellectuals, the philosopher and sociologist Jürgen Habermas, argued in a statement with several co-signatories that Israel has no genocidal intentions, but that its “principally justified counterattack” must adhere to certain rules. It could now be argued that, according to Habermas, Israel should not launch this attack at all because, regardless of one’s opinion on the accusation of genocide, it does not adhere to the “principles of proportionality” and “avoidance of civilian casualties” that he demands. But Habermas’ statement has not gone unchallenged among German academics. Critics argue, among other things, that the group with which Habermas signed onto the statement does not oppose war crimes and does not give consideration to international humanitarian law.

German politicians and journalists generally believe that one lesson from German history in the 20th century is unconditional support for Israel. But what does that mean? Is the state of Israel synonymous with “Judaism”? According to a study conducted by the National Jewish Survey in 2021, around a quarter of US Jewish voters saw Israel as an apartheid state. In the same survey, 22% of respondents agreed with the statement that Israel is committing genocide against the Palestinians. Numerous Haredim who strictly follow the Torah reject the existence of the state of Israel. Judaism is incompatible, they believe, with the secular laws and rules of a state that was established on the territory of another people after they were forcibly expelled.

Is the support of the Israeli government always in the interest of Israel? Should Germany maintain a kind of Nibelung loyalty to every Israeli government, regardless of whether it mutates into an autocracy or does not abide by international humanitarian law? If there really is a friendship between Germany and Israel, there should also be the possibility of open dialogue and dissent. Or is the German relationship with Israel merely based on feelings of guilt, ideas of justice and pragmatic considerations arising from the past? The former German Chancellor Konrad Adenauer, for example, also felt the need to seek reconciliation with Israel due to political pressure.

Thirdly, one may wonder to what extent the current Israeli Prime Minister represents his people. Benjamin Netanyahu’s public image has been tarnished by various corruption scandals. Not only his political survival depends on the continuation of the Israeli military campaign in Gaza. The release of the hostages held by Hamas seems not to be a high priority for him. In the eyes of many Israelis, he has unforgivably neglected Israel’s security. Are the interests of his radical coalition partners more important to him than those of his fellow citizens?

Various general values for political action originate from German history in the 20th century. Namibia reminded Germany of its imperial past only a few days ago. Democracy failed at the end of the Weimar Republic. Among other things, the National Socialist legislators amended the family and inheritance laws of the German Civil Code. There was a legal system, but not a state governed by the rule of law that guaranteed fundamental rights. The central function of law and justice under National Socialism was to secure state control. They served to eliminate political opponents and regulated racial policy, the exclusion and persecution of Jews. From there, an intricate path led to German war crimes and genocide during the Second World War. The lessons learned from these experiences are reflected in particular in the principles and values of the German Basic Law. The state should protect its citizens. Internally, it should guarantee, among others, the inviolability of human dignity and the home, equality before the law and the right to freedom of expression and assembly, the right to life and to physical integrity.

But what can we say about external relations? The above-mentioned values rule out the possibility that one people may have ascribed privileges that it denies to others, that it may consider itself more valuable than other peoples on the basis of ethnic criteria, and that it may disregard international humanitarian law and expel, persecute or even partially destroy another people.

It is not the responsibility of Germany to dictate to other countries what policies they should pursue. In the international arena, states pursue their interests. Baerbock, nevertheless, selectively calls on China and Russia to respect human rights.

 However, if a “values-led foreign policy” were to be taken seriously, German politicians should refrain from promising to supply weapons — such as submarines or artillery shells — and from making thoughtless and reflexive statements of “unconditional solidarity” toward Israel, regardless of how Israel behaves when it fails to comply with international humanitarian law in the territories it occupies and when its army goes so far as to commit war crimes.

Instead of sending a frigate to the Red Sea, Germany should call on Israel and the Palestinian militant groups in Gaza to respect international humanitarian law and to immediately implement a permanent ceasefire. This implies the instant end of Israel’s disproportionate and indiscriminate military campaign, its withdrawal from the Gaza Strip and the immediate release of all hostages.

Please direct questions or comments to [english@hani.co.kr]

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