London barrister Natasha Hausdorff spoke with Mishpacha about Israel’s two court cases and its options

The State of Israel is currently engaged in a fight on the world stage unlike any it has faced in its brief history. As the IDF corners the remnants of Hamas in Rafah, diplomatic pressure is being brought to bear from every quarter to force a cease-fire. And now Israel’s foes have leveraged the international court system to wage “lawfare,” forcing the country to fight on yet another front.

Two world judicial bodies based in the Hague, Netherlands, have made moves against Israel over the past two weeks. The International Court of Justice (ICJ), which is supposed to adjudicate disputes between nations, issued a somewhat ambiguous statement regarding the IDF military incursion into Rafah. Meanwhile, a prosecutor for the International Criminal Court (ICC), which claims jurisdiction to prosecute individuals for crimes against humanity, has issued arrest warrants for Israel’s Prime Minister Binyamin Netanyahu and Defense Minister Yoav Gallant, charging them as “war criminals” and equating them with the leadership of Hamas.

London barrister Natasha Hausdorff has emerged in British media as a formidable defender of Israel’s legal case and argues that the charges against it are driven purely by political motives. Hausdorff, 34, who clerked for former Israeli High Court president Miriam Naor, and now serves as the legal director for UKLFI (UK Lawyers for Israel) Charitable Trust, is well positioned to analyze the legal challenges Israel faces, having studied and defended Israel’s stance in previous conflicts.She spoke with Mishpacha about Israel’s two court cases and its options.

World media plainly reported that the ICC ordered Israel to immediately halt its military advance in Rafah. But others are saying the court order is actually more ambiguous than that. Which is true?

The ICC cannot order that and it has not done that. The Court does not micromanage conflicts. In fact, the Ugandan vice president of the court, Julia Sebutinde, stated in her dissenting opinion very strongly that the court would be overstepping its role in making a further order, essentially seeking to micromanage Israel’s operations in Gaza at the request of South Africa. South Africa has sought an order from the Court that Israel immediately cease its operation, and it has not been successful in achieving that.

What the Court essentially ordered was that Israel comply with the Genocide Convention and cease any operations in Rafah that may breach its obligations under this convention. Israel has been clear it is continuing to abide by its duties under the Convention.

I think it’s fair to say that the court is acting in unprecedented fashion. It seems to be politically motivated, because it is entertaining these false claims by South Africa. But it has not ordered that Israel stop its operation in Rafah. That’s a misrepresentation of the order.

On what legal basis are Israel’s adversaries claiming that it is committing “genocide” against the Palestinians?

It’s outrageous that they can progress with such a falsehood — not least because they’re accusing the real victims of genocide here of perpetrating the acts that were carried out against them. And I don’t just mean the victims of the genocide in the Holocaust, which gave rise to the very term that is now being deployed against Israel. But I also mean victims of acts of genocide on October 7, which were plainly committed by Hamas, with the requisite intention to destroy a group, in whole or in part.

The reason South Africa is twisting this is, firstly, to bring Israel to the ICJ with this legal hook. But secondly, it’s in keeping with an agenda of essentially deploying blood libels against Israel — modern blood libels like “occupation,” “ethnic cleansing,” “colonialism,” “apartheid,” and “genocide.” And the reason that South Africa is seeking to make this accusation, even as false as it is, is to provide some justification for using this term, genocide, against Israel.

This has been stated clearly by those who support South Africa’s action. I was on the South African national broadcaster ABC, discussing what was happening at the ICJ, and my counterpart, also being interviewed, praised the development on the basis that they could now use “Israel” and “genocide” in the same sentence, and nobody could criticize them for it. That is essentially the purpose of this exercise in “lawfare,” which is an abuse of international law — to start to use these legal terms as political weapons against Israel, where they have no legal or factual basis.

What about the accusations that Netanyahu and Gallant are committing “war crimes”?

There has been no evidence to substantiate these allegations. What has been reported on consistently in Israel’s approach to previous armed conflicts in the Gaza Strip, and also in this one, is the measures that Israel takes, not just to comply with international humanitarian law, but to go above and beyond the requirements of international humanitarian law.

And that is something that is reflected, I think, in the moral, ethical code of the IDF — the way that it invokes the principles of international humanitarian law, necessity, distinction, proportionality, and precaution. In doing so, the IDF is setting an unprecedented standard that I think other armies are going to struggle to follow — because of the measures that Israel takes to warn civilians, to evacuate civilians, to conduct a proportionality exercise in relation to every strike that is carried out, and to minimize the collateral damage and harm to civilians. This, of course, comes in the context of Hamas doing absolutely everything not just to violate the laws of armed conflict, but to use those violations to its advantage. The intention and the exercise of Israel’s military operation is the exact opposite of these preposterous claims.

What can you tell us about Karim Khan, the ICC prosecutor who requested an arrest warrant against Netanyahu?

He has a long and respected history as a prosecutor with the Crown Prosecution Service here in the United Kingdom, which is why I was pretty astounded when I heard him giving a press conference at which he completely inverted the burden and standard of proof with respect to Israel.

He also spoke about the “alleged” crimes of Hamas. Now, these were crimes that Hamas recorded on GoPros and publicized around the world. And at the same time, [Khan] talked about the requirement that Israel prove that is complying with international humanitarian law in Gaza.

That’s what I mean about the inversion of the burden and standard of proof — because it is a fundamental principle that one is innocent until proven guilty, and that the burden rests with the prosecution to prove guilt. It doesn’t rest with a potential defendant to prove innocence.

Why does Israel present itself before international tribunals where it evidently stands to lose?

Because Israel is a democracy, it is a country of law and order, and it’s a country that upholds the rule of law. It hasn’t engaged with the International Criminal Court, because the ICC has no jurisdiction. But because Israel is a signatory to the Genocide Convention, and because the ICJ has jurisdiction in matters pertaining to the Genocide Convention, Israel has participated at these proceedings.

But I think the politicized approach of the court is becoming plain for all to see. The president of the court, Judge Nawaf Salam, hasn’t recused himself, despite his personal track record as the former ambassador of Lebanon at the United Nations, accusing Israel of terror, calling Israel an apartheid state, and making allegations of war crimes against Israel. He’s plainly not impartial. If it was a court based upon law and order, he ought to have recused himself.

Does this mean Israel will lose its case?

I think it’s never black and white. The decisions taken by the ICJ so far show that it has failed to properly apply its own rules on provisional measures and failed to analyze the factual circumstances. And they seem to me to be politically motivated. Nevertheless, the court hasn’t actually ruled what many people are saying it has ruled. The ICJ did not say that Israel was plausibly guilty of genocide.

So while I agree that we need to be very careful about any future ruling that the court puts out — because it may very well be that it has been politically influenced — so far, what it is being suggested that the court has done is not actually reflective of what the court has ordered. And the fact that the former president of the court, Joan Donoghue, had to come out on the BBC and correct the reporting of her own order is utterly unprecedented. I think it’s a reflection of the failure of the media to properly reflect what has been happening, both factually and legally.

You’ve said you prefer not to comment on the strategy of the Israeli legal team because you are not party to the internal discussions. But is there anything you would do differently, if you were in charge of the case?

Everything that I have seen the State of Israel put forward is indicative of the opposite of any intent to commit genocide. It has provided for the civilian population, it has put forward field hospitals, it has taken precautions that are unprecedented in armed conflict. And Israel has been at great pains to put forward the factual basis for all this.

It’s unfortunate that only Judge Sebutinde referenced this in any detail in her dissenting opinion. Otherwise, it seems all of the measures that Israel has been taking do not seem to register with the other judges. And that’s an extremely difficult position to be in. Because no matter what it is that you’re putting forward, if the judges have essentially predetermined matters, it’s not going to impact them. The broader question is probably how it’s playing out in the media.

In your last interview with the BBC’s Christian Fraser, it was evident he wouldn’t let you speak, and he interrupted you at every turn. When you criticized the network, they practically ended the segment.

Well, that’s pretty standard, though this was the third time I’ve been on with Christian Fraser. In every interview, he’d come with that challenge. It makes it all the more important to get the realities of the facts and the realities of the legal position across at every opportunity, not least because those opportunities are few and far between. And because frequently, commentators or analysts who don’t fit the agenda are interrupted.

Do you believe appearing in the media is important to inform the public, or do you think it might generate pressure on the courts judging Israel?

It’s important so that the public isn’t misled. It’s undeniable that the judges are under pressure. But I don’t know if setting the record straight in the international media will contribute significantly to that. There is an awful lot of misinformation going into the court, both from so-called human rights organizations and also from UN reports from special rapporteurs or from other UN bodies. And it’s clear already that the court has been referencing them in the orders that it has put out.

So there has to be a wholesale pushback at international bodies, in the media and also in national debates, because I think we’re increasingly seeing the misrepresentations in the media influence national discussions with respect to upcoming elections. There are upcoming elections in the United States and the UK, and also at the European Union. And Israel and Gaza is proving to be a central election issue.

(Originally featured in Mishpacha, Issue 1014)