[This article was originally published by Jacobin on 11 January 2024.]

This week, three months into the catastrophic and continuing obliteration of Palestinian life in Gaza, the Israeli state will stand accused of genocide at the International Court of Justice (ICJ). On one level, this may seem a remarkable turn of events. On another, perhaps the only surprise is that it has taken this long.

In mid-October, a week into an Israeli onslaught that had already established itself as a campaign of ethnic cleansing and annihilation, over eight hundred scholars of international law and genocide studies issued a public statement raising the alarm at the prospect of an unfolding genocide in Gaza.

They emphasized the duties of all states to prevent the perpetration of genocide and pointed to legal proceedings at the ICJ under the 1948 Genocide Convention as one of the avenues to try and do so. Since then, twenty-two UN special rapporteurs, fifteen UN working groups, the director of UN Office for the Coordination of Humanitarian Affairs, and the UN Committee for the Elimination of Discrimination against Women have all echoed the warnings of genocide.

South Africa has initiated proceedings at the ICJ against Israel. South Africa’s application asserts that “Israel has engaged in, is engaging in and risks further engaging in genocidal acts against the Palestinian people in Gaza.” It asks the ICJ to make a provisional ruling “as a matter of extreme urgency” to protect Palestinians from “further, severe and irreparable harm.”

The Court

The International Court of Justice is the principal judicial body in the UN system and adjudicates disputes between states. It is entirely separate from the International Criminal Court (ICC), which investigates and prosecutes individuals accused of war crimes, crimes against humanity, or genocide.

The ICC operates outside of the UN system and was established by a standalone treaty, which presents jurisdictional challenges. It took the ICC’s Office of the Prosecutor until 2021 merely to confirm that it had jurisdiction in Palestine: Palestinians first asked it to do so in 2009, and Palestine had become a full member of the court after signing the Rome Statute in 2015.

In contrast, all UN member states are part of the ICJ, which can also accommodate states that are not UN members but have signed up to the ICJ Statute. The ICJ settles two kinds of disputes between states: contentious cases, settling disputes between two or more states, and advisory opinions to determine a proper interpretation of the law at the request of the UN or its agencies. South Africa’s application is contentious as it alleges a breach of the Genocide Convention by Israel and requests provisional measures as remedy.

Any finding of Israeli state responsibility for genocide by the ICJ would make the ICC’s distinct lack of interest in prosecuting any individual Israeli suspects look even worse than it already does. While all international legal entities are politicized by the dynamics and political economy of imperialism, the ICC is particularly notorious, given its near exclusive prosecution of African and Arab suspects since it started operating in 2002. Across the Global South, the ICC has come to be seen as a racist expression of “white man’s justice.” It also has the current problem of a British prosecutor who is perceived as being in the pocket of the NATO states.

The ICJ’s fifteen judges comprise a global geographic spread, with a majority of non-Western judges. Like any court, its traditions and tendencies are ultimately conservative, and it played its part in the imposition of Western “standards of civilization” through international law over the rest of the world. However, the ICJ has also issued rulings against the imperial powers, from condemning the counterrevolutionary US intervention in Nicaragua during the 1980s to rebukingBritain’s continued colonial rule in the Chagos Islands today as unlawful.

Although the ICJ has no coercive authority of its own to compel states to comply with its decisions, its judgments can nonetheless be a powerful resource for states and activists alike to use tactically in their political agitation and education.

The Complaint

South Africa’s application argues, in compelling depth and detail, that Israel is responsible both for committing genocide in Gaza and for failure to prevent genocide as indicated by extensive direct and public incitement to genocide “which has gone unchecked and unpunished.” These Israeli acts and omissions are presented by South Africa as genocidal in character because they are committed with the intent “to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”

Of the five possible acts of genocide listed in the Genocide Convention, South Africa documents Israel’s systematic perpetration of four in Gaza:

• killing Palestinians (“at a rate of approximately one person every six minutes”; over 21,110 Palestinians killed by the time the complaint was submitted; a further 7,780 missing and presumed dead under the rubble)

• causing serious bodily or mental harm to Palestinians(over 55,243 Palestinians wounded; “severe mental trauma” caused by extreme bombardments and lack of safe areas)

• deliberately inflicting conditions of life calculated to bring about the Palestinian group’s physical destruction in whole or in part (forcibly displacing 85 percent of the population “into ever smaller areas of Gaza . . . where they continue to be bombed by Israel”; causing widespread hunger, dehydration and “imminent mass starvation” of besieged Palestinians; systematic attacks on hospitals and deprivation of access to health care, electricity, shelter, hygiene, sanitation, livelihoods, education, cultural life; in short, the “destruction of life-sustaining infrastructure”)

• imposing measures intended to prevent Palestinian births (“through the reproductive violence inflicted on Palestinian women, newborn babies, infants, and children”)

The thirty pages of South Africa’s eighty-four-page submission that set out these genocidal acts make for a devastating read. They are followed by a further eight chilling pages of quotes and statements of genocidal intent by Israeli state representatives that “indicate in and of themselves a clear intent to destroy Palestinians in Gaza as a group.” South Africa also asserts that genocidal intent is “to be inferred from the nature and conduct of Israel’s military operation in Gaza.”

The intent to destroy a group is often seen as the most difficult element of genocide to prove and is often the distinction between a brutal war and a campaign of genocide. South Africa’s submission shows how the genocidal rhetoric that has accompanied Israel’s campaign in Gaza has been overt and omnipresent from the outset. The running database of Israeli statements of genocidal intent and incitement compiled by the legal group Law for Palestine has now passed five hundred entries.

When bringing a case to the ICJ, states can request the court to order “provisional measures” in an urgent situation. The court must deal with this as a priority over other cases. It can quickly convene hearings and issue a ruling on the requested provisional measures, before later proceeding to adjudicate the full merits of the case.

South Africa has requested a series of nine different provisional measures, including ordering Israel to desist from perpetrating genocide, to prevent and to punish any genocidal acts and incitement that have been committed, to preserve evidence relating to any allegations of genocide and, most far-reaching, to immediately suspend military operations in and against Gaza.

Counterarguments?

When the submission of South Africa’s application was made public, Israel’s spokespeople and foreign ministry were quick to label it as a contemptuous “blood libel” — upping the ante from its previous preemptive denigration of any potential ICC investigation of Israeli war crimes as “pure antisemitism.” Beyond those shameless attempts at deflection, Israel may try to argue that there is no dispute between South Africa and Israel, so the ICJ should not hear the case.

The court will have grounds to reject this: South Africa’s complaint lists a series of instances between October and December where South African officials conveyed its position that Israel is perpetrating genocide. This included a direct communication to the Israeli government, calling on it to cease its attacks in Gaza and to refrain from violating the Genocide Convention.

Israel might also contend that South Africa has no standing to bring the case as it is not directly affected by Israel’s actions in Gaza. But the court’s own jurisprudence has confirmed a legal principle that violations of treaties such as those prohibiting genocide and torture are of concern not only to the injured party but to the international community as a whole.

The ICJ also emphasized in its Bosnia v. Serbia judgment that the duty of all states to prevent genocide should be interpreted broadly. South Africa’s submission stresses that it has brought this case in recognition of its own obligations under the Genocide Convention to prevent genocide.

On the substantive questions of genocidal intent and conduct, Israel has suggested that it will argue that some of the statements of intent were made by officials who do not have decision-making power over operations in Gaza, while those who do have such power did not actually mean all those things they said. Beyond the very questionable veracity of these claims, the fact is that Israel has failed to suppress any of those statements of intent, abrogating its duty to prevent genocide.

Similarly, Israel will argue that its attacks in Gaza are against Hamas and the Palestinian armed groups, not the population as a whole. It will probably point to the (deceitful) designation of so-called “safe zones” in Gaza, the input of its legal advisors on compliance with international law, as well as rhetorical support for a Palestinian unity government, as evidence that it is not targeting Palestinians as a group.

However, phenomena like the field executions of civilians and the AI-generated targeting of residential buildings, known as “power targets,” severely undermine that claim. This is to say nothing of countless social media posts, like those of Israeli soldiers lamenting they did not find babies to kill or announcing their wedding dates by bombing homes in Gaza, indicating an absolute devaluation of Palestinian civilian life among Israeli troops.

Another Israeli contention may be that the ICJ should not make any ruling that impairs a state’s right to self-defense. The argument here is multidimensional, relating to overlapping rules about the use of force, military occupation, and self-defense.

It has been well established that Israel does not have the right to self-defense in territory that it occupies, a principle that was affirmed by the ICJ itself in its 2004 Advisory Opinion on the route of the wall in the West Bank. Israel disputes this, but whether or not its use of force in Gaza is characterized as self-defense, this offers no defense against the core of South Africa’s claims about genocide.

Israel’s arguments about the legitimacy of its military operations will also be undermined by the fact that it has yet to achieve a single substantive military goal. Despite using arsenal equivalent to two atomic bombs and causing an unprecedented toll of death and destruction, it has not decimated Hamas, has not turned Palestinians against Hamas, and has not retrieved hostages and captives through military means.  

The Consequences

The hearings on provisional measures are taking place today and tomorrow (live streamed here). Based on recent practice, the court will then issue its order somewhere between a week to a month after that. It will likely grant many of the provisional measures that South Africa has requested.

At this stage, the court will not have to make a definitive decision on whether Israel is perpetrating genocide. The later stage of proceedings will be even more contentious as the threshold to conclusively establish genocide is high. Under the ICJ’s earlier jurisprudence on these questions, in order to prove genocidal intent on the basis of a pattern of conduct itself, rather than explicit expressions of such intent, South Africa will have to demonstrate that the conduct could “only” be explained by the existence of genocidal intent.

For now, the ICJ just needs to be satisfied that at least some of the acts alleged by South Africa could “at least plausibly” fall within the scope of the Genocide Convention, which is a relatively low bar that should be comfortably passed here. If so, the court can issue a provisional order for Israel to stop any further harm in the meantime.

The case will then continue to the subsequent stages for the court to confirm its jurisdiction and issue a final judgment on the full merits of the case. That process will probably take several years.

If the ICJ does order provisional measures at this point — and Israeli legal experts have warned the military of a “real danger” that the ICJ orders it to cease-fire — Israel will be formally bound by that. However, it is already refusing to confirm it would comply with whatever the court decides.

Yet the lack of coercive force to back it up does not make an ICJ judgment futile. A finding for South Africa would further politically isolate Israel and its primary ally, the United States. To date, the United States has twice overridden the will of the international community demanding a cease-fire at the Security Council, despite the exceptional measures invoked by the UN Secretary-General (Article 99) and the UN General Assembly (Uniting for Peace).

An ICJ ruling on the commission of genocide, or a failure to prevent genocide, would cast a darker shadow over the US-backed Israeli campaign and heighten its illegitimacy in the eyes of the world. It would also provide states with more authority to intervene in future ICJ proceedings, as well as to bring national prosecutions of Israeli perpetrators.

States like Malaysia, Turkey, and Bolivia have already made public statements backing South Africa’s application. Some Western countries like France and Canada have not expressed any position on the case itself but emphasized that they support the ICJ as a legitimate forum. States may also make formal submissions to the  court later on to support or oppose South Africa’s complaint.

Under the ICJ rules, states are entitled to “intervene” in the case by submitting their own legal positions. A large number of states have done so, for example, in support of Ukraine’s ongoing case against Russia. In another case where Gambia is accusing Myanmar of genocide against the Rohingya people, only six weeks ago, Britain, France, Germany, Denmark, the Netherlands, and Canada submitted a declaration supporting the complaint and arguing for a broad understanding of what constitutes genocide, especially where children are affected. Their failure to do the same in the case against Israel would be telling.

States also have their own means to prosecute Israeli individuals in their national courts. The principle of universal jurisdictionempowers states to prosecute individuals accused of grave crimes in international law, including genocide, on behalf of a global community. An ICJ ruling would enhance a state’s authority to prosecute Israeli individuals accused of participating, committing, and/or inciting genocide in their national courts.

Although the United States, unsurprisingly, has denouncedSouth Africa’s complaint as “meritless, counterproductive and without any basis in fact whatsoever,” Israel has acknowledged the heightened risks posed by an ICJ decision in favor of South Africa. An order from the ICJ putting states on notice that Israel must refrain from committing genocide in Gaza will make it more difficult politically to continue supplying the weapons that Israel might be using to perpetrate genocidal acts.

The ICJ itself has highlighted that the extent of one state’s duty to prevent genocide being committed by another state is concomitant with its capacity to influence that other state — a point of particular relevance to the United States and EU here. Israel’s own Ministry of Foreign Affairs has privately admittedthat the ICJ ruling “could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications.”

Regardless of judicial findings within international tribunals, the claim of genocide under the Genocide Convention has significant utility. Since the start of Israel’s brutal campaign, millions of people globally have accused it of genocide, from Tokyo to Seoul, Amman to Cairo, Berlin to London, Sydney to New York. While popular recognition of a mass atrocity is not equivalent to a finding in law, it is as important in establishing the moral and political foundation for accountability. 

The Context

A substantial list of states have condemned Israel’s actions in the recent months as genocidal, and lawyers and activist groups in almost every country have been calling on their governments to invoke the Genocide Convention against Israel. The fact that South Africa has ultimately been the one to bring this case carries certain resonances.

The anti-apartheid era had its own engagement with the ICJ through a series of cases that challenged the apartheid regime’s occupation and imposition of white supremacy in Namibia. Although the outcomes of the overall legal saga were mixed at best, it did bring some “groundbreaking” attempts by African states to disrupt international complicity with racism and apartheid.

Post-apartheid South Africa and Namibia have been among the states most willing over recent years to take a serious and sustained position on Palestine as an anti-colonial and anti-apartheid cause. While the likes of EU foreign affairs chief Josep Borrell have been effectively accusing human rights organizations of antisemitism for their reports on Israeli apartheid, South Africa’s foreign minister Naledi Pandor has been pushing for Israel to be formally declared an apartheid state by the UN. The consistent commitment to this position at state level is also down to the strength of Palestine solidarity activism in South Africa through the unions and social movements.

South Africa’s submission to the ICJ stops short of naming Zionism as a form of racism and colonialism in the way that Third World interventions at the UN have done in decades past, linking the Palestinian cause to the anti-apartheid struggles in southern Africa in an era of intense imperial affinities between apartheid and Zionism. But the complaint does crucially and explicitly “place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid,” and notes that “acts of genocide inevitably form part of a continuum.”

South Africa’s case forces a legal examination with which all states will have to reckon in the urgency of the moment, as Palestinians in Gaza continue to be slaughtered and starved on their watch. It is a vital intervention to support the Palestinian people and to give legal expression to the global rallying cry of these past few devastating months: stop the genocide.