Banal and Evil: Israel’s Impunity for Genocide in Gaza

Hikmah - Center for International Law and Human Rights
Jul 26
7 min read

26 July 2025

הָיוּ, הָיוּ עַרְבֵי גַּעֲגוּעִים

...

אֲנִי אֶהְיֶה לַצֵּל חוֹלֵף בִּשְׂדוֹתֵיכֶם

לְסוֹד נִסְתָּר.

הֱיוּ שָׁלוֹם, אֲנִי חָיִיתִי בֵּינֵיכֶם

כְּמוֹ צֶמַח בָּר.

An Israeli song from 1975 performed by Chava Albertsein and other singers throughout the years.

“Binyamin Gibli belonged to Israel's clandestine aristocracy…”

Tom Segev, “Benyamin Gibli: 1919 – 2008 Shameful Business, Constant Danger”, Haaretz, 20 August 2008.

“Gideon Meir, the Israeli government spokesman, called the attack a 'Passover massacre.'”

Joel Brinkley, “Bomb Kills at Least 19 in Israel as Arabs Meet Over Peace Plan”, New York Times, 28 March 2002.

"מחפשים אנו תורה אשר בכוחה להסביר את התופעה המשפטית המכונה 'שליחות'. חיפוש זה הוא חיוני. התורה העיונית המונחת ביסוד מוסד משפטי היא המפתח להבנתו של המוסד."

אהרן ברק, "תיאוריית השליחות וכוח הייצוג", ספר זיכרון לגואלטיארו פרוקצ'יה (אהרן ברק ואח' עורכים), עמ' 360.

“In 2006, while dean of Harvard Law School, Ms. Kagan introduced Judge Barak during an award ceremony as 'my judicial hero.' She added, 'He is the judge or justice in my lifetime whom, I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.'”

Sheryl Gay Stolberg, “Praise for an Israeli Judge Drives Criticism of Kagan”, New York Times, 24 June 2010.

“Steven Spielberg and Shimon Peres, onetime prime minister and foreign minister of Israel, had not read Tuesday’s Daily Variety‘s story in which CBS’ Les Moonves reiterated the Web would air the mini about a young Hitler.”

Army Archerd, “Spielberg, Peres tour the Shoah Foundation”, Variety, 15 January 2003.

“No one limits us.”

Tomer Bar

Israeli political and military leaders face daunting legal repercussions because of the genocide they have been committing in Gaza since 7 October 2023 the day a successful resistance operation from Gaza took place. The Israeli legal system comprised of the Attorney General Office, the Israeli Courts, and legal academia have granted the Israeli government and military absolute support and impunity in their strategic mass killing and destruction of Palestinians in Gaza that forms genocide, crimes against humanity, and war crimes backed by the U.S. army under the leadership of CENTCOM’s Micheal Kurilla and an American political establishment dominated by the Israel lobby in both major parties. The fact that Israel failed to achieve its military and political goals does not diminish its calamitous conduct.

A pending case before the International Court of Justice, requests for arrests upon visit under the principle of universal jurisdiction, and incomplete prosecution by the International Criminal Court that nevertheless managed to issue arrest warrants against certain Israeli leaders should deal a significant blow to Israel’s unjustified international standing and stature. The genocide and its legal consequences should not, however, distract from, but rather intensify, the long-standing, persistent task of abolishing Zionism and its colonial and apartheid creation that is the state of Israel.

The Israeli authorities did not carry out any genuine investigation and prosecution regarding Israel’s pathological crimes in Gaza: mass murder that is genocide; ethnic cleansing, destruction of civilian and cultural buildings, starvation, collective arbitrary arrests; and torture that are crimes against humanity; and systematic war crimes against humanitarian agencies.

In contrast to its consistent approach of not cooperating with international investigations and denying the applicability of international courts’ jurisdiction, Israel decided to participate in the proceedings before the International Court of Justice initiated by South Africa under the Convention on the Prevention and Punishment of the Crime of Genocide that was instituted in December 2023. The Attorney General's Office represented Israel in this case, and former Chief Justice Aharon Barak accepted the Israeli government’s request to be part of the Court’s panel of judges.

Discovering an unfamiliar and lonely presence factually and legally, Barak decided to resign as an ad hoc judge in June 2024. The case is still pending. Almost a year later, Barak declared that he went to the Hague to defend law and justice motivated by Zionism, because when “Israel is accused of genocide, I am accused as well”.[1]

On 27 March 2025 the Israeli Supreme Court rejected a petition filed a year earlier regarding Israel’s policy to substantially limit humanitarian aid provided by international agencies into Gaza. This measure was perceived by international legal observers as either comprising a central element in Israel’s perpetration of genocide or crimes against humanity. The petitioners did not advance the argument about genocide or any other legal definition of abhorrent mass killing, as indicated by the Court itself, denoting the proceedings before the International Court of Justice. The Israeli court determined that Israel was neither an occupying power in Gaza nor in violation of any applicable law. It also noted and elected to disregard without any explanation the Israeli government’s decision to ban any aid entering Gaza shortly before delivering the judgement.

The Israeli legal system inherited the British mandatory jurisprudence in Palestine that incorporated its local legal concepts and interpretations. Under the guidance of the Faculty of Law of the Hebrew University, there has been a constant effort to generate an Israeli jurisprudence interpreting Israeli laws applied to certain disputes. The first edition of a law review in Israel, produced by faculty and students was published in 1969, reflected this desire. President of the Supreme Court Olshan described a court that is near perfect in its various approaches, despite a military regime in significant parts of the country that did not find its way to his presentation, and the court’s Mapai composition, dominated to this day by Eastern European heritage.

Conforming to the general Zionist project carried out mainly by Ben Gurion and his Mapai ruling party that placed the creation of an exclusivist Jewish state at the heart of its objectives, the Attorney General Office and the courts played a central role in the extensive dispossession scheme after the formation of the state and in the political subordination of the less than one third Palestinians who were not ethnically cleansed outside of Palestine in 1948.

Post 1967 occupation of East Jerusalem, the West Bank, and Gaza was met with ordinary legal backing. The illegal de facto annexation of East Jerusalem was the first step in dominating the entirety of historic Palestine, followed by the formation of settlements in the same model advanced before 1967. Attorney General Yitzhak Zamir provided a written legal opinion about the legality of establishing settlements, and his predecessor Aharon Barak supervised Plia Albeck’s legal theorizing about Israel’s land rights in the 1967 occupied territories.

The official position of the Israeli government continues to be that the 1967 occupied territories are not as such and do not trigger the application of the Geneva Conventions because they were not captured from an existing sovereign. In a more relevant political terminology, successive governments have considered these territories as liberated: Golda Meir, Yitzhak Rabin, Shimon Peres, and after. Part of the Israeli psyche, intellectually and culturally lasting to this day, of negating the presence of a Palestinian people. From an Israeli perspective, the 1993 Oslo Accords, written by the legal adviser of the Ministry of Foreign Affairs Yoel Zinger, the Palestinian Authority’s powers stem from the IDF’s which is the sovereign in the 1967 occupied territories (excluding annexed East Jerusalem). The dominant international law opinion is clear and to the contrary for many years articulated in consistent U.N. general assembly resolutions, U.N. Security Council resolutions, and two ICJ advisory opinions regarding the construction of the wall from 2004 and the legality of occupation from 2024: the settlements, including in East Jerusalem are illegal and the occupation as such is also unlawful.

As a continuation of the mindset of the Jewish Yishuv in Palestine, the main issues discussed among Israeli Jews, except for the silenced one about the location of Mizrahi Jews in Zionism and Israeli Jewish society, even when dominating the government, are those relating to the jurisprudence of local bids and governmental appointments.

Aware of potential international aftereffects, the Israeli Supreme Court resorted to various rhetorical doctrines while legitimating all of the Israeli occupation atrocities: mass killing, political assassinations, individual and collective deportations, torture, extensive destruction of property, confiscation of land, home demolitions, administrative detention, and arbitrary individual and collective arrests. Israeli military courts shape the jurisprudential approach of any other Israeli court towards Palestinians by applying ex parte hearings and non-disclosure of ‘security-related’ evidence.

The historical shifts in the Israeli Supreme Court’s doctrinal rhetoric moved from benign occupation to the Israeli soldier carrying Israeli administrative law in his backpack. Then the distinction between customary, thus binding international law to a treaty, and a non-obligatory one captured the Supreme Court’s government backing decisions. Subsequently, the Court accepted the Attorney General’s proposition of applying only the humanitarian provisions of the Fourth Geneva Convention, which any reasonable person would consider as a humanitarian document in its entirety, without acknowledging its applicability. And lastly, the concept of proportionality was utilized to project a sense of rationality for legitimating undoubtedly illegal conduct.

Barak’s resignation from the ICJ panel was a demonstration of his inability to successfully perform his legal maneuvers to save Israel’s image, reputation, and potentially lasting legal and diplomatic reverberations. Domestically, Barak mastered the art of producing illusory decisions with little to no effect or filled with loopholes that the Israeli government could easily understand.

In the Kahan Commission, Barak absolved Sharon and the Israeli government of direct responsibility for the Sabra and Shatila massacres despite available evidence to the contrary. The Israeli Supreme Court routinely approved torture practices until Barak delivered a unanimous decision of nine judges. Most of them, and probably all, did not regard Palestinians as worthy of equal rights. Barak's evident acrobatic analysis left glaring loopholes purportedly advancing from the Landau Commission that authorized torture in 1987 and falling far from barring the prohibited interrogation method. In the political assassinations ruling, Barak could not reach the obvious decision for any decent legal commentator. And in the Wall judgment, he disqualified the International Court of Justice’s advisory opinion by purported factual analysis under the principle of proportionality. The Supreme Court and its supporters in the United States could proudly say Palestinians had their day in court. Yet, it was an improper setting with its unfair procedure, discourteous legal analysis, and mythological historical narration.

While failing to investigate and prosecute grave international crimes contributes to establishing the non–national jurisdiction, it also has a genuine outcome regarding the culpability of the legal adviser, whether in the military or as a civilian. A legal duty was intentionally not executed, resulting in the continuous perpetration of serious international crimes of which the legal adviser is aware. Israeli legal advisers from the Attorney General down indeed incur individual criminal responsibility for their government’s atrocities in Gaza. The same implication attached to Israeli officials, military commanders, and political leaders also captures the Israeli legal advisers.

[1] “Aharon Barak: When Israel is accused of genocide, I am accused as well”, Kan, 29 May 2025.