The Washington Post, January 11, 2024
The Washington Post, January 11, 2024
What to know about the genocide case against Israel at the ICJ
Israel appeared before the International Court of Justice in The Hague on Thursday to face accusations it is committing genocide in Gaza in a case that could impact the trajectory of the war.
South Africa, which brought the case, alleges that Israel is violating international law by committing and failing to prevent genocidal acts “to destroy Palestinians in Gaza.”
Israel has rejected the allegations — as has its most important ally, the United States.
The ICJ case adds to international pressure on Israel to scale back or end its war against Hamas, which health officials in Gaza say has killed more than 23,000 people — many of them women and children. The war also has rendered much of the enclave uninhabitable and pushed the population to the brink of famine.
Israel launched the campaign after Hamas militants rampaged through Israeli communities on Oct. 7, killing around 1,200 people and taking more than 200 hostage.
After hearings Thursday and Friday, judges are expected to rule within weeks on interventions that South Africa has requested to change Israel’s conduct of the war. A verdict on the question of genocide could take years.
Here’s what to know.
What is the ICJ, and what authority does it have?
The International Court of Justice, established after World War II to settle disputes between countries, is the main judicial body of the United Nations.
The U.N. General Assembly and Security Council elect the court’s 15 judges to nine-year terms. Its president is Joan Donoghue, a former legal adviser to the State Department.
A 1948 convention, ratified after the Holocaust, made genocide a crime under international law and gave the ICJ the authority to determine whether states have committed it.
The court’s rulings are legally binding, but enforcement can be tricky, and the rulings can be ignored. Russia, for example, rejected a 2022 order to cease its war against Ukraine.
The ICJ is distinct from the International Criminal Court, a newer body that tries individuals accused of violating international laws including war crimes and genocide. Neither Israel nor the United States recognizes the ICC’s jurisdiction.
What is South Africa’s genocide case against Israel?
In an 84-page filing, South Africa accuses Israel of intending “to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”
“Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group,” the country argues.
South Africa points to Israel’s large-scale killing and maiming of civilians; its use of “dumb” bombs; the mass displacement and the destruction of neighborhoods; “deprivation of access to adequate food and water,” medical care, shelter, clothes, hygiene and sanitation to civilians; its obliteration of Palestinian civic institutions; and its failure to provide any place of safety for Gazans.
South Africa also accuses Israel of preventing Palestinian births by displacing pregnant people, denying them access to food, water and care, and killing them.
To be successful, South Africa will have to show that Israel’s goal is not just to wipe out Hamas, but to destroy Palestinians “as such” in Gaza. The country quotes Israeli leaders calling for mass expulsions from Gaza or denying that anyone there is innocent.
Proving genocidal intent will be a challenge, said Adil Haque, a professor of international law at Rutgers. Still, he said, Israel will be called to explain: “How can it be that all of these military and political leaders are making these extreme statements?”
Amichai Cohen, a law professor at Israel’s Ono Academic College and senior fellow at the Israel Democracy Institute, said South Africa’s case reflects “classic cherry-picking.”
“There have been things said and tweeted and written by Israeli politicians that are extremely problematic,” he said. “But these are not the decision-makers.” Still, he said, a recent uptick in calls from right-wing Israeli ministers for the “emigration” of Palestinians from Gaza “doesn’t help.”
How does Israel respond?
Israel vehemently denies the allegations and says South Africa is “criminally complicit” with Hamas.
“We have been clear in word and in deed that we are targeting the October 7th monsters and are innovating ways to uphold international law,” government spokesman Eylon Levy said last week.
“Our war is against Hamas, not against the people of Gaza,” an Israel Defense Forces spokesman, Rear Adm. Daniel Hagari, said Tuesday.
Israeli officials say they’re not targeting civilians or trying to force Palestinians out of Gaza. Israel blames Hamas, charging that it uses civilians as human shields. The government has embarked on a public-relations campaign to rebut allegations that it is obstructing the delivery of humanitarian aid.
Israeli officials accuse Hamas and allied groups of waging a genocidal campaign against Jews. The government on Wednesdaycreated a website intended for foreign viewers and posted graphic vides on it from the Oct. 7 attacks and their aftermath.
But the ICJ has authority to examine allegations only against states, not militant groups.
Israel vehemently denies the allegations and says South Africa is “criminally complicit” with Hamas.
“We have been clear in word and in deed that we are targeting the October 7th monsters and are innovating ways to uphold international law,” government spokesman Eylon Levy said last week.
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“Our war is against Hamas, not against the people of Gaza,” an Israel Defense Forces spokesman, Rear Adm. Daniel Hagari, said Tuesday.
Israeli officials say they’re not targeting civilians or trying to force Palestinians out of Gaza. Israel blames Hamas, charging that it uses civilians as human shields. The government has embarked on a public-relations campaign to rebut allegations that it is obstructing the delivery of humanitarian aid.
Israeli officials accuse Hamas and allied groups of waging a genocidal campaign against Jews. The government on Wednesdaycreated a website intended for foreign viewers and posted graphic vides on it from the Oct. 7 attacks and their aftermath.
But the ICJ has authority to examine allegations only against states, not militant groups.
Who will argue and try the case?
South African human rights specialist John Dugard leads his country’s legal team. He has extensive experience investigating Israel’s alleged rights violations in the occupied Palestinian territories and has served as an ad hoc judge on the ICJ.
Israel’s defense team is led by British lawyer Malcolm Shaw, a specialist in territorial disputes who has defended the United Arab Emirates, Cameroon and Serbia before the ICJ.
The choice of a figure respected in the field, Cohen said, “signifies that Israel is taking the case seriously.”
Each side is allowed to appoint one judge to the bench, for a total of 17. These ad hoc judges are supposed to weigh facts independently, but states tend to appoint judges they believe will be sympathetic to their arguments.
Israel has picked the former president of its high court, Aharon Barak, an advocate for judicial independence and, notably, a critic of Prime Minister Benjamin Netanyahu’s efforts to overhaul Israeli courts. Barak’s appointment Sunday drew praise from Israeli centrists and condemnation from Netanyahu’s right-wing allies.
Cohen described Barak is a “great defender of the state of Israel.” Barak told Canada’s Globe and Mail several weeks into the war that Israel’s mission and conduct in Gaza did not violate international law.
South Africa chose Dikgang Moseneke, a former deputy chief justice of its constitutional court. Moseneke helped to draft South Africa’s interim constitution in 1993, as the country transitioned from apartheid to democracy.
The appointees’ personal backgrounds — Barak is a Holocaust survivor; Moseneke spent time in prison for his activism against apartheid — “might make for a very interesting clash,” said Haque, the Rutgers professor.
Why are the hearings this week significant?
The hearings are to consider “provisional measures” to stop conditions in Gaza from worsening while the case progresses. One measure South Africa is requesting: that Israel “cease killing” the people in Gaza. South Africa will argue its case Thursday. Israel will respond Friday.
The order for Moscow to cease fighting in Ukraine showed the limits to the court’s power. Juliette McIntyre, a lecturer in law at the University of South Australia who specializes in international courts and tribunals, said she would be surprised if the court issued a similar order against Israel.
“I think we are likely to see a much more nuanced order relating to ensuring that aid, water, etc. is allowed into Gaza and that Israel has to uphold its commitments,” she wrote in an email.
The only way to enforce an ICJ order is through a vote of the U.N. Security Council. Any of the council’s five permanent members, including the United States, could veto any such measure. Secretary of State Antony Blinken this week called the genocide case “meritless.”
But given recent U.S. efforts pushing Israel to try harder to minimize civilian deaths, McIntyre wrote, an order could provide cover to apply greater pressure “without being perceived as backing down against Hamas.”
By defending itself in court, Haque said, Israel is accepting its legitimacy — and that “will make it more difficult to defy the court’s orders later on.”
John Hudson and Lior Soroka in Tel Aviv contributed to this report.
