The following is a transcript of Episode 110 of the For Heaven’s Sake Podcast. Note: This is a lightly edited transcript of a conversation, please excuse any errors.

Donniel: Hi, this is Donniel Hartman and Yossi Klein Halevi from the Shalom Hartman Institute. This is For Heaven’s Sake, our special edition Israel at War. And today is day 114 and today’s theme was forced upon us. All of us, and I didn’t meet anybody in Israel who wasn’t glued to the television on Friday, at two o’clock, as the Hague rendered its temporary ruling regarding the war in Gaza. And our theme for today is how do we look at the Hague? Is it a victory or is it a defeat for us? 

It’s changing our world. It was psychologically very frightening. I knew I had to cancel everything. I had to listen to every word.

Yossi: I have rarely seen you so galvanized.

Donniel: It wasn’t, I don’t know if it was galvanized. It was just,

Yossi: You were so focused on. 

Donniel: Oh, completely. Like, what? You know, it’s not normal to be up for trial.

Yossi: On the charge of genocide.

Donniel: That makes it even triply worse, it’s true where your whole being, and maybe that’s what genocide is about is your whole being, your whole moral character, your whole legitimacy is up for trial and it’s consequential. And how did the ruling, we’re not going to talk in general, but how did the ruling hit you and how did you experience and how did you read it?

Yossi: Can I tell you before reading the ruling, how it hit me, seeing these dignified judges solemnly entering the hall, knowing that the eyes of the world are on their temporary verdict. And knowing that I’m on trial, and I’m on trial for the worst possible crime that a human being can commit, that a nation can commit.

And I thought about my father, Holocaust survivor, and I thought that if he were alive now, this might kill him. 

Donniel: Wow. Wow. 

Yossi: And I think in general, the whole post-October 7th reality, he would have taken so much to heart. I don’t know how he would have coped. And yet paradoxically, on the other hand, he would have said, well, of course. What did I warn you about all these years? 

And you know, Donniel. I spent a good part of my life trying to distance my way of thinking from my father, and my father raised me as a kind of a surrogate contemporary survivor. He wanted me to take on his worldview, and I don’t think he would have said he would want me to take on his traumas, but I certainly did when I was young.

My maturation process was realizing that my Jewish reality is light years away from his. And I would be doing violence to my life as a Jew, growing up in America, then becoming a citizen of Israel. I lived in the best of all possible Jewish worlds. And yet, when I saw those judges entering the room, I felt like my father. I said, you know, the world, nothing’s changed. 

And my father used to say to me, remember this, the world is divided between two kinds of people, those who actively try to kill the Jews, and those who are glad that others are doing the dirty work. 

Donniel: That was the choices?

Yossi: That, those were the choices. And that was so not true to my reality as an American Jew that I couldn’t take that on. But on Friday, I had one of those moments where I was back again in his world and I don’t want to be there. I don’t want to be in that world. But there I was. Where did it hit you?

Donniel: We are such different people. 

Yossi: Say it ain’t so.

Donniel: I had, there was a tremendous amount of anxiety. But at the end, and I want to hear how you felt about it at the end, I appreciated the process.

Yossi: Okay. But where did the anxiety come from?

Donniel: It wasn’t that someone would falsely accuse us. It was the possibility that people are afraid that we’re guilty of something, because that’s what was on the table. On the table was not whether we committed genocide or not, and the judge very clearly at the opening said over and over and over again with unbelievable precision, at issue here is not whether genocide is happening. But at issue is whether there is a need for a temporary statement or a temporary restraining order of some form, because there’s some very bad things happening.

And I am living in a place where I am deeply worried about parts of what we’re not doing, and I’ve spoken about that here, of being perceived as such and perception counts. And I don’t feel that a perception of Israel’s moral flaws are inherently anti-Semitic. I don’t have this anti Semitic response gene. It’s very unnatural to me. So, and I know in that sense, I’m very different than most Jews in the world. I just don’t, I don’t see the world that way. I’m shocked. When I meet an anti-Semite, I’m shocked because my whole world is just in another world. I really am shocked. 

Yossi: So part of me feels relieved. Ah, okay. I can deal with this.

Donniel: I don’t feel that. And that’s why, and I didn’t feel that the American, the head of the court was an enemy. I was like, what do you see us? And it could be you’re wrong, but then what am I doing? That’s contributing to that. I was, I know we’re not guilty of genocide. I know we’re not, but what, what is,

Yossi: But the world does.

Donniel: I know, but that’s not, you asked me what I was feeling. I was feeling concerned, you know, how does the world see us? And I was also concerned, would there be consequences that would potentially severely, severely harm us? And I was afraid of that because I knew, and we’ll talk about this more later, that Israel would not be able to respond responsibly to this.

If such a ruling came down and then we would be spiraling into a self-destructive place because the self-righteousness of some of the people in this government, you’re including some of your favorite people in the world. 

Yossi: You’re talking about Bibi. 

Donniel: No, it’s just, they can’t handle criticism. And even there’s a cut off your nose to spite your face type position Israel could get into, precisely when they use the anti-Semitic language. So those were some of my, my concerns. I didn’t take it for granted that this is a, not a mock trial, but some like fake 

Yossi: Kangaroo court. 

Donniel: I was concerned about the makeup of the judges and, how many of them were forced by their governments to make a certain decision? So I was worried about whether there would be a fair hearing. I was concerned about that. 

Yossi: Did you feel it was legitimate at all for us to be on trial in that framework ,with genocide hanging over us? 

Donniel: No, no. I think the claim is preposterous. It’s a preposterous claim. 

Yossi: Which means that the whole premise of the court,

Donniel: No, but it’s not a premise. No, there’s a process. There is a court in which these things are supposed to be brought forward. Very often people are brought to trial and the process of a trial is to check the validity of the issue.

Yossi: I hear what you’re saying. The problem is that as soon as our name is linked with the charge of genocide, then the perception abroad becomes the burden of evidence.

Donniel: I’m with you. 

Yossi: The burden is on you. 

Donniel: I’m with you. I’m not even talking about that. I’m talking about something completely different. I appreciate that. I hear that. I appreciate that. That’s a separate conversation. You know. A plague on the South African government, which did this and whether they were funded by Iraq, what was their agenda and what were they gaining and that this is not genocide itself. Really? That our intent is to destroy and wipe out Palestinian Gazans?

Yossi: You know how many people now believe that?

Donniel: I know that. But the issue, I, again, sometimes I’m rational to a fault, like some people could like stick a pin in me and say, are you alive? Like, I have my categories and I look at things, you know, and it’s like, I’m thinking about something. It’s like, it’s like I’m a crazy person sometimes, but like, I understood that South Africa was manipulating a system put in place to protect the world and they were manipulating it. 

And I’m also very confident and actually nobody’s very worried about what the outcome of trial will be, in five or six years time, when who knows where the world will be into the whole thing is moot. And it’s just a whole, the process, the critical issue was this intermediate measures. That was the issue at hand. I was upset that we were brought, I understand the consequences, but on Friday, the feeling of being on trial and what would be the consequence of that was troubling for me for slightly different reasons.

But now this is before they opened up their mouth. You and I had different feelings about the whole process. Once they opened up their mouth victory. Part of you, I’m hearing you saying it just doesn’t matter, the mere moment.

Yossi: That’s my feeling. That is my feeling. That as soon as we were linked with the word genocide, we lost. And a good case has been made here, that it could have been much worse. I call that a Jewish victory. Yes, you know, you’re on trial for genocide, but you know, it could, you know, you could have been found immediately guilty. No, we weren’t. And of course the court didn’t call for an immediacy fire, which really is a kind of victory.

And it’s a tacit recognition of the legitimacy of this war, that we’re fighting a war of self-defense. And I grudgingly, I appreciated that, but there were so many aspects of how this was framed that I found simply outrageous. The fact that the entire burden of the charge of genocide was placed on us and not on the Hamas regime.

Now, of course, there are good legal reasons for that. The Hamas regime in Gaza is not an official state, and so the court doesn’t have jurisdiction over them. Still, I was waiting for some acknowledgment that Israel is facing an organization, it’s not an organization anymore, it’s a regime, that is committed to a genocidal policy.

And so the whole language of genocide being directed only against us felt to me. A crime, a kind of a spiritual crime. The fact that the court accepted, without hesitation, the grossly inflated Hamas figures, the casualty figures, without taking into account that we say that 9,000 of the dead are Hamas fighters, and there was so much of just accepting the premises of how Hamas defines this war, without also acknowledging the conditions with which we need to fight the war, a regime that is completely entwined with the civilian infrastructure of Gaza. 

So I just found myself getting more and more depressed, listening to this litany of charges. And the last thing I’ll say about this, Donniel, and I felt this happening to me, and I’m sure this was happening throughout Israeli society, I felt shut down. I felt that my capacity for moral self-critique was wiped out by this sense of being under relentless assault for a charge that I know I’m not guilty of. That was my takeaway.

Donniel: It’s very interesting as I, I had a very, very different experience from you. It started with profound trepidation, and as I was listening to the very precise legal conversation, which you are correct, nobody’s listening to. That’s true. So you’re right that there is a defeat just by the moment itself, but as I was listening to them, and I knew what were the lines that couldn’t be crossed, and when I heard the judge making clear distinctions between determining the case of genocide and not determining the case of genocide. That we’re not talking about this now. We’re not talking about this now, and I, okay. Okay. 

And then when I heard them beginning to present the foundations for their decision. You’re right. There were other things that could have been said, but I wasn’t thinking about them. I was listening really carefully. Like, I was like, again, it’s beyond my capacity, but I was using my, like, I was a Talmud page I was listening to it.

And they said, we’re not ruling on whether this is genocide, but there are certain factors on the ground that if, when the time comes, this is an issue of genocide, which we’re forced to rule on because their hands are tied to, there are certain facts on the ground that we have to make sure that they don’t get worse, that these have to be dealt with because then the court knowing the process said the whole thing could be moot because they’ll be gone.

And it says, yes. And it wasn’t as much the number of casualties that was there, but they’re speaking about the fact that 80 plus percent of Gazans are now out of their homes. And one of the criteria of genocide is destroying the ability of a society or part of a society to function and to live. When they spoke about the horrific medical conditions, when they started to quote Israeli figures, it was interesting. They didn’t quote Smotrich. They didn’t quote anybody who had no significance. They quoted two people. They quoted the president of Israel and they quoted Gallant, the military of defense. 

Yossi: Falsely, by the way, Gallant was out of context. That’s possible. Herzog was not, but Gallant was. 

Donniel: I’m not sure. I didn’t feel that, but let’s say even assuming I’m not, and they just quoted them and said, there’s conditions here, regardless of the context, because I’m not ruling on the context now, I’m not ruling on the intent of Israel, and I, as a court, can’t decide, prima facie, that there’s no standing here. I can’t. You brought the case. I have to try it. I have to see. 

And once they ruled that South Africa, even though they’re not a party to the genocide, they have a right to bring the case, there’s almost a process which is unleashed. And you’re right, we lost. But in the argument itself, I was listening to it. And what they ultimately said was A) The minute they didn’t ask or demand a ceasefire, they’re basically legitimizing everything that you’re feeling. They understand Hamas. This is not a war which is self-evident. The only way to explain it is the intent of genocide. Because if that was the case, they would have said, we got to stop this right away. No. 

So, even though it’s not a victory in public opinion, when you listen to the legal reasoning, I appreciated it. And then when they, Yossi, can I,

Yossi: The problem is that it was a little too subtle for public opinion.

Donniel: Oh, I’m with you. I’m not arguing the public opinion. I’m just saying, like, I accept that. The public opinion thing is very subtle. And then when they said as follows, and these are two of the cases where Aharon Barak, the Israeli member of the court, actually sided with the majority. That A) this generic statement, we have to make sure not to commit genocide. Well, we’re doing that already now. We’re making sure they didn’t say we were just, hello, don’t commit genocide. Okay, that’s fine. 

But then they said two things. A) you have to take the humanitarian aid much more seriously. Aharon Barak votes with them. You have to condemn and pursue legal actions against Israeli public figures and politicians who are making statements, which even if they’re not purely genocidal hint towards that. Aharin Barak votes with the majority again. 

Yossi: I was glad that he did.

Donniel: He did, those two things, So at the end, do you know why I think it was a victory? Because Israel was told. If you want to fight a just war, we’re not stopping you right now. We could accept that at least at the surface, this is a just war or it’s not clearly an unjust war. 

But if you’re fighting a just war, this is going to take me two minutes to explain, but give it to me or I’m taking it. If you’re fighting a just war, you’re fighting it because you believe. That human life matters, including your human life. I call it war as an expression of liberal values. War not as an act of aggression, just war as a war of self-defense, because human life matters and we are fighting ultimately to save human life, starting with our own, but to diminish the capacity for future death and for future justice.

That’s the idea of a just war, a just war for some people is an anathema. How could there be a just war? There is a just war. There is a time where war and, unfortunately, killing are morally obligatory. They’re morally obligatory. It’s not murder. It’s for the sake of life. Now that’s what we’re claiming. 

And the court basically said to us, if you’re claiming that you’re going to war because it’s a just war for the sake of life, then you have to take life seriously, not just your own. And that statement, just we’re talking, Donniel Hartman, Aharon Barak was right. Hello, stand up. It can’t be that our only moral principle is self-preservation. When self-preservation is not threatened by moral responsibilities, when it is threatened by moral responsibilities, then you have, that’s in an act of war, civilians will die. 

But when there are things that you could do and you could, and you could work, they’re basically saying to Israel, from now on till the end of the trial, fight a just war, work harder on fighting a just war justly. That, for me, is a victory. 

Yossi: Okay. So what I hear you saying, Donniel, is that the court actually is doing us a certain favor. Maybe a backhanded favor, but nevertheless.

Donniel: Maybe this is my Jewish victory. This is a Jewish favor. 

Yossi: Jewish victory. Yeah. That’s right. And that the court is allowing us to continue to fight the war and is even taking our insistence that this is just war seriously and calling our bluff and saying fight the just war justly.

Donniel: That’s my argument. 

Yossi: I accept it. I accept that. 

Donniel: Could we stop for a second? 

Yossi: No. I can’t stop there.

Donniel: But I accept that you accept. I want to enjoy it for one moment.

Yossi: All right. I’ll pause for the moment.
Donniel: Go. 

Yossi: Okay. This is a conversation that we need to have, that Israeli society has not had, which is, how do we fight a just war justly? And if it were happening in any other context, outside of a trial on genocide, I would be with you. It taints and corrupts. Everything.

Donniel: I accept that, too, by the way. 

Yossi: Ah! Let me savor that, too. 

Donniel: You can, I accept that, too. 

Yossi: So, okay, so we’re getting places, and what a tragedy, that this necessary corrective, a mirror that needed to be held up to us, that the frame of this mirror is so horrific to Israelis, justifiably, that we can’t see the reflection.

Donniel: But you want to know something, Yossi? We actually can. Because I believe that one of the problems with this government is that consistently it refuses to allow moral considerations to rise to the surface. We speak about Israel and our army in glowing moral terms, but when push comes to shove, our prime minister, our minister of defense, they don’t speak moral languages. They don’t speak in those terms. They’re incapable. They’re incapable of it. And as a result, they don’t speak to Israeli society about what does it mean to fight a just world justly. 

Now, I remember throughout my life, the army did this to me all the time. The army does it to every soldier. What does it mean to endanger your life to live by certain moral principles? This is part of the strength of our army. That when we go to war, there’s a moral courage. There’s moral courage that we demand and we expect of ourselves. It’s one of the things I love the most about this country, that despite this obscene reality that we’re in, we don’t say we are living in some Hobbesian jungle of war, of all against all. And there are no moral criteria other than survival. Israeli army refuses to say that. 

So right now, look what happened since the ruling on Friday. Two things, A) No minister with the exception of Ben Gvir, one little tweet, where he said “Hague shmag,” and in Hebrew it’s haag, not Hague, it’s “Hague shmag.” No one said anything, and everybody was told, it’s time to be quiet, because we now know that we, in the passion of October 7th, said horrific things.

And part of it is that for some it even became an ideology. It wasn’t a reaction to October 7th. It was a morality. Now, notice everybody’s quiet, two, two, because it’s two things you have to see. Actually, progress comes. Hostage families try to stop the aid from going into Gaza. After the ruling on Friday, and we have to show in one month’s time that we’re serious about this, the government says, excuse me, this is Netanyahu speaking ethically. He says, the stopping of humanitarian aid will undermine our ability to fight the war. So to ask him, Netanyahu, moral sensitivity, I didn’t get it, but utilitarian ethics, you know, for some people that, it’s not too bad. 

Yossi: What I’m hoping the impact this will have on Israeli society is to force us to own up to the excessive rhetoric that so many people indulge in, especially our leaders after October 7th, you know what, in the first days I understood it.

Donniel: That was Herzog. Herzog is the natural, moral, sensitive man. This is a man who lives with such, you know, October 7th, he lost their two. 

Yossi: And we say, you know, in Judaism we say don’t judge a person in his time of sorrow. And that’s, yeah, and it’s 

Donniel: That, that was fine. Yes. Yes. All of us, by the way, regressed to that. I even think in our podcast, we even spoke about Hamas as inhuman and like wiping out these animal categories of absolute evil, like in which basically you’re setting the stage for a moral vacuum.

Yossi: We were also, as a society, totally unprepared for that level of atrocity. 

Donniel: That’s correct. 

Yossi: And it’s astonishing that Israelis, who pride themselves on being so knowing about our enemies, and nothing can surprise us, we were shocked. Even we were shocked. And we were thrown. And we were looking for a category, we were looking for some way, some handle on what we were facing. But we need to own the consequences of that kind of incendiary and hateful rhetoric. So there, I’m with you. 

You mentioned former Chief Justice Aharon Barak, and I want to just savor this moment where Netanyahu had to turn to his arch enemy, Barak, who represents the independence of the court, the liberal vision of the court, liberal vision of Israel, and he had to ask him to represent Israel in the court. And what a victory that was for the democratic movement for these months of our standing in the streets and demonstrating.

And I also thought that when the court allowed us to continue the war, I felt that, imagine what would have happened had we hadn’t stopped the government from destroying the independence of the court, the credibility of the court. The fact that Aharon Barak could sit on that court with all of the weight that he has and speaking as a Holocaust survivor. 

And he had this wonderful quote. He said, to blame Israel for genocide is like accusing Abel of the crimes of Cain. And he could say it because everyone on that court knew that he represented the integrity of the rule of law. And imagine if we hadn’t won and we did win. We stopped the government. 

Donniel: You know, you and I both believe, with all of our moral fiber, that this is a just war and that Israel’s intent in fighting the war is a just one. But at the same time, there’s a difference between a war which is just and fighting a war justly.

I know also with every part of my soul that much of the accusations against Israel are also false on even also on how we are fighting the war, but there’s a conflation of the two, and that’s ultimately where the genocide accusation comes in because you accuse a person of act A and you undermine and you forget October 7th.

And I think there’s an opportunity here, and it’s a hard one and I, as you know, I have no hope to ever convince the anti-Semites or the anti-Semite anti-Zionists who are gleeing right now. There’s nothing that you and I or in fact anybody could say. We were guilty of genocide even before it went to the court and they just were reaffirmed.

But there’s a whole group of liberal Jews and liberal friends of Israel who want to stand with us and who accept that this is a just war and are now asking us, this war that’s going to drag on, fight it justly, work harder to show that you actually care and believe that all human beings are created in the image of God. Show it. And it’s time. 

We had stage one and stage two now stop talking. If somebody talks, prosecute them, prosecute them, kick them out of the cabinet, period. And two, let’s start working harder on something that you and I’ve spoken about. Let’s work harder on issues of our humanitarian responsibility, not for utilitarian reasons alone, even though that’s a day, a new, just for us to be able to pursue our safety, but also for who we are. You know, there’s no doubt that the context is horrific and it probably was a Jewish victory and there was a lot of defeat involved, but there’s what could be learned. 

Yossi, it was good for me talking this through with you.

Yossi: For me too. I feel a little bit better.

Donniel: Yeah. Yeah, but I don’t want to say I feel a little bit worse.

Yossi: That’s also a Jewish victory. 

Donniel: That’s also a Jewish victory. My friends, this is For Heaven’s Sake, Israel at War, Day 114. You can now sponsor an episode of For Heaven’s Sake Israel at War. 

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