Kafka at the International Court of Justice

“Are you reminded of Kafka’s The Trial?” a reporter asks me, echoing cries of “insane” and “Kafkaesque” that I’ve been hearing from many of my fellow Jews about proceedings at the International Court of Justice (ICJ) where South Africa has accused Israel of committing genocide for defending itself against the explicitly genocidal attacks of Hamas. But no, the case before the ICJ is not like the work Kafka wrote in German in Prague during the First World War. Der Process was angst; this is evil.

Kafka’s classic novel opens on a mystery we expect the rest of the book to solve: “Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning.” A regular legal case reveals who is leveling the accusation and provides relevant details of the alleged crime. But Joseph K. never learns what he stands accused of, by whom, or under what authority. In this state of indeterminacy, no man can prove his innocence. Unable to figure out the system that has put him on trial, he is ultimately killed. “It was as if the shame of it must outlive him.”

Joseph K.—the deracinated Jew with a truncated identity who stands politically and metaphysically at the mercy of forces he no longer understands—became a universal symbol of modern man’s fate at the hands of the very institutions he looks to for guidance. But Kafka himself came to realize the implications of what he had written, and by the time of his death in 1924 he was studying Hebrew with the intention of moving to Palestine. Several members of his Zionist circle did move to Jerusalem, and one brought with him Kafka’s archive, where it now rests in the National Library of Israel.

By the time Kafka’s sisters were murdered in Auschwitz, several waves of Jews had established the infrastructure for statehood in the land of Israel that had been under foreign occupation for 2,000 years. That return of the Jews to political sovereignty is one of the great chapters in human history. Had the Arabs, their fellow Semites, accepted the principle of coexistence, the Middle East—numbering one Jewish state among more than 20 Arab neighbors—would have flourished in peace and prosperity. Instead, Arab and Muslim factions still compete over who can best whom at destroying the Jews.

Hamas recently beat the competition with a demonstration of savagery unlike the earlier improvised pogroms in Europe to which it has been compared. October’s slaughters were plotted with crucial input from Gazans employed in Israeli homes they had scouted and mapped for the purpose, making this the first military campaign designed to culminate in acts of beheading, torture, and rape of predetermined victims. As attempts to destroy Israel through conventional warfare had only made Israel militarily stronger, the new tactics aimed at destroying the Jews’ will to remain among antagonists sworn never to leave them in peace. More than to intimidate, these attacks were made to demoralize.

Survivor-witnesses describe new refinements of psychological warfare. Hamas murdered parents and children in each other’s presence so as to sharpen the survivors’ agony. They took hostages—not, as others do, for eventual exchange—but to taunt the country with images of prisoners’ suffering, and fear that many would never be returned. Every Jewish value—respect for women, honoring the human being who was made in the image of God—was gleefully defiled.

As for the Jews living in nearby Gaza, many of them self-described Jewish “peaceniks,” they had prided themselves on the medical help and hospitality they extended to their Gazan neighbors, persuaded that cooperation was obviously to everyone’s benefit. The terrorists exploited the Jews’ desire for peace as a means of entrapment and further opportunity for torment. By attacking on a Jewish holiday and a secular festival, they intended to destroy the Israelis’ joy in life. Anyone reading Dan Senor and Saul Singer’s exhilarating book about the collective strengths that constitute The Genius of Israel will recognize how Hamas turned precisely those virtues into weapons of torture to tear the Jewish people apart.

Nor does this exhaust their inventiveness. The Arabs’ strategy of martyring generations of their own people in the cause of eliminating Israel dates back to the 1947 refusal of Arab leaders to accept the partition of Palestine into two states—in order to keep Arabs perpetually homeless. Arabs were to remain permanently displaced as evidence of Israel’s “occupation” while Israel integrated the over 800,000 Jewish refugees from Arab lands and granted participatory citizenship to over 2 million Arabs who chose to remain in its boundaries.

Taking this tactic of martyring their fellow Arabs to a new level, Hamas turned Gaza into suicide central. Above ground, residents were allowed to conduct a quasi-normal life, knowing that, below ground, every school, every hospital, and many private homes were booby-trapped for the Israelis whom their leaders would lure into their cities. The IDF continues to uncover a tremendous amount of infrastructure built over years, confirming Hamas’ intention of invading and killing Israelis en masse. In the words of one of its soldiers “[It] is clear they expected us to arrive and laid plans to exact a cost in the form of IDF casualties.” The attack of Oct. 7 had to be monstrous enough to provoke Israel into full-scale war in the hope of rescuing the hostages and destroying the terrorists—a plan that would also ensure the collateral death of as many Gazans as possible to attract Western sympathy.

The Palestinian Authority’s “pay to slay” policy that rewards terrorists for the murders they commit will support every Hamas rapist and killer and their families. Making a travesty of international law that calls for the protection of citizens and prevents the use of human shields, breaking treaty arrangements and forbidding Red Cross access to prisoners, Hamas ridicules any hopes Israelis may invest in the West’s civilizing structures, which were designed for the protection of minorities and to which modern Jews did indeed look for fair treatment. In this sense, like Kafka’s Joseph K., they have been betrayed by the very institutions where they hoped to find justice.

Now the government of South Africa has weighed in with its support for Hamas and its accusations of Israeli genocide, and now the U.N.’s International Court of Justice prosecutes this charge, blatantly sabotaging the cause of justice it was created to serve. A century after Kafka’s death, there is nothing Kafkaesque about this trial, the falsity of which is plain to all. Israel stands in its own eyes and must stand before the world not as defendant but as righteous plaintiff against “those who demonstrate total disdain for life and for the law.” Unless Israel prevails, the political calculations that have allowed this travesty can only embolden the murderers and their supporters, condemning the world to ever greater evils—and not against Israel alone.