Explainer: the genocide charge against Israel

In his powerful dissenting opinion at the ICJ, Israeli ad hoc Judge Barak decried the genocide case against Israel as wrongly imputing “the crime of Cain to Abel.” He is referring to the irony of charging the Jewish people, the first victims of modern genocide, with the very crime likely perpetrated against it, only months earlier by Hamas.

Barak was one of only two of the seventeen judges to oppose the Court’s ruling. What is the ICJ and what did the Judges decide so far? How does international law define ‘genocidal acts’ and is the Jewish state committing them in Gaza?

What is the ICJ and its history with Israel?

The International Court of Justice (ICJ) is the UN’s top Court in The Hague. Commonly known as the ‘World Court’, it settles legal disputes between UN member-states, all parties to the ICJ, and issues legal advisory opinions as requested by UN bodies. Unlike the International Criminal Court (ICC), the ICJ has no lawful authority to prosecute individuals for war crimes. Rather, the court is about “state-to-state” litigation.

The ICJ has a long history with Israel/Palestine. In 2004, the Court’s non-binding opinion ruled that Israel’s West Bank barrier built during the Second Intifada was illegal and should be removed. In July this year, the ICJ delivered another advisory opinion on the legality of Israel’s occupation of the Palestinian territories since 1967.

It came after the UN General Assembly asked the court in 2022 for an advisory opinion. Among other things, the Court held that Israeli settlements violate international law, and that Israel should pay reparations to the Palestinian people. An unprecedented fifty-two states participated in the proceedings. This was the highest level of engagement in the Court’s history.

ICJ Genocide case: What do the parties claim?

The court’s recent intervention in Gaza has drawn even more attention. In December 2023, South Africa (SA) filed a case before the ICJ accusing Israel of violating the 1948 Genocide Convention. Specifically, South Africa alleges Israel is ‘engaging in genocidal acts against the Palestinian people in Gaza’ citing official Israeli rhetoric as evidence of incitement ‘which has gone unchecked and unpunished.’

According to South Africa, Israel’s sustained bombing of densely populated Gaza and its ‘failure to provide or ensure essential food, water, medicine, fuel, shelter and other humanitarian assistance’ are ‘genocidal in character.’ The ICJ was asked to issue provisional measures of protection, including the immediate suspension of Israel's military operations.  Conversely, Israel argued no dispute exists between South Africa and itself, that the ICJ has no authority to wade into an armed conflict, that it is acting in self-defence, that official statements have been misconstrued, that they are taking measures to safeguard civilians and the provisional measures sought by South Africa go too far.

Jurisdiction: What gives the ICJ authority to intervene in Gaza?

Israel was bound to defend South Africa’s complaint, because it is a party to the Genocide Convention and so agreed to dispute resolution by the ICJ. Unlike other treaties, the Convention creates obligations between all its signatories, allowing them to hold each other accountable for any breaches.

Indeed, SA followed the example set by The Gambia, when it brought Myanmar to the ICJ for genocidal acts in 2019 against the Rohingya minority and secured provisional measures against it. Notably, “Palestine” has not signed the Genocide Convention, and Hamas cannot do so as a non-State actor, so neither can be the subject of these ICJ proceedings. The legal asymmetry perversely means that only Israeli acts, and not the litany of Hamas atrocities are on trial.

Provisional Measures: What has the ICJ decided so far?

On January 26, 2024, the Court issued provisional measures, a first procedural step. These include requiring Israel to prevent genocide against Palestinians in Gaza, to enable basic services and humanitarian aid, and to prevent and punish incitementto genocide. To be clear, the ICJ has not yet made any concrete findings on the merits of the case. Its final judgment will likely take years.

According to Justice Barak, the provisional measures are of a ‘significantly narrower scope’ than those requested by SA. They largely recall Israel’s existing obligations and do not require Israel to immediately halt its military operations in Gaza. The lack of a ceasefire order is notable given that the ICJ previously ordered one in 2022 against Russia for its military operations in the Ukraine.

Contrary to misleading reports, nowhere in the Court’s judgement was there a finding that Israel ‘plausibly committed genocide’. It took the Courts’ President four months toclarify that all the court decided was that the circumstances in Gaza and Israel’s duties mean Palestinians have a plausible right to protection from genocide (para 54) and that South Africa could proceed with its complaint.  

At the same time, the Court did not dismiss the case as Israel demanded. Instead, it found the ‘existence of a dispute’ and expressed strong criticism of Israel’s use of force, as well as statements made by Israeli leaders (including the PM and President) after October 7 that seem to promote mass destruction and killing of Palestinians in Gaza.

South Africa has made three further requests for additional measures. On March 28, the ICJ issued new orders to address food insecurity and potential famine in Gaza. On May 24, the Judges also ordered Israel to halt any military offensive in Rafah ‘which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.” So long as Israel respects its existing obligations, it is unclear what this ambiguously worded order means.

Is Israel breaching the Genocide Convention in Gaza?

In popular discourse, the term genocide has become a ‘validation of every kind of victimhood’. But in international law, genocide is reserved for the most extreme cases of trying to wipe out an entire people. Codified after the holocaust, the crime involves a physical element of “acts” like mass killing and/or destruction, as well as a mental element of “intent.”

But unlike other crimes, genocide involves a special intent to destroy “in whole or in part the group as such.” In other words, genocidal intent must be the only motive that can be reasonably inferred from the physical acts (Bosnia-Herzegovina v. Serbia, para. 187; Croatia v. Serbia, para. 417). There may be widespread destruction and death, but without special intent, no genocide. So long as Israel can claim its conduct is about defeating Hamas and returning the hostages, South Africa will struggle to meet the legal test. Israeli attempts to spare civilians and minimise harm would also refute special intent.

The Genocide Convention is not meant to ban armed conflict altogether. It was never drafted to regulate breaches of the laws of war. Put simply, if mass death or harm are caused unintentionally or with a legitimate military purpose, then such acts, tragic and legally troubling as they may be, cannot be genocide. To be sure, Israeli public figures have used dehumanising language. But genocidal intent is not easily inferred from sporadic commentsmade in the wake of a massacre (para 37).

This is more so when such bluster contradicts the actual official orders given to soldiers on the ground, and where the relevant authorities have clarified that Israel’s intent is to destroy Hamas, not the Palestinian people (para 36). The International Tribunal for the Former Yugoslavia has ruled that even highly inflammatory public speech calling for “annihilation,” “elimination,” and “extinction” must be evaluated within the “full context in which they were delivered and not in isolation.”(Karadžić Appeal, para 742)

Incitement to Genocide?

Where Israel remains vulnerable at the ICJ, is its duty to prevent and punish direct and public incitement to genocide. This is a separate questionto genocide and continues to cast a legal shadow. Recently, Haaretz reported the Israeli state prosecutor recommended not to open any criminal investigations against senior public figures who "called to harm civilians in the Gaza Strip.”

When Israeli Ministers demand to expel Gazans or post “Burn Gaza now, nothing less!” on social media they should be sanctioned. By allowing such rhetoric, the ICJ said Israel was not doing enough to remove the risk of harm to Palestinians (para 73). Words matter, both morally and legally. On this point, even Justice Barak agreed (para. 44)

Legal Food for thought

It is all too easy to cynically dismiss international justice as pure politics. South Africa’s alliance with Iran and hostility to Israel make it hard to believe the ICJ case was brought in good faith. The Genocide Convention should not be weaponised to deny any state the right to lawfully defend itself against the horrors of October 7 (para 48). At the same time, the humanitarian costs of Israel’s military campaign are grave, and of legal concern. Even if they do not qualify as genocide, disproportionate force, indiscriminate bombing and public incitement could otherwise constitute war crimes. Ultimately, the laws of war (and not the Genocide Convention) will need to evaluate the fragile balance between military necessity and civilian protection.

Sadly, no ICJ order on Gaza seems capable of changing the devastating reality on the ground. This does not mean that international law mechanisms are not needed to express condemnation and challenge impunity, but it does mean that they should not be so easily subverted. Ideally, Sinwar’s removal and the revival of ceasefire talks will bear fruit. In the words of Justice Barak: “If anything, history has taught us that the best attempts at peace in the Middle East have generally been a result of political negotiations and not judicial recourse.” (para 15)

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