Surprise — ICC Judges Torpedo ICJ ‘Genocide’ Case Against Israel

The November 21 International Criminal Court (ICC) press release (https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges) announcing that the three judges of Pre-Trial Chamber I have issued arrest warrants for Israel’s Prime Minister and former Defense Minister on war crimes and crimes against humanity charges provoked justifiable outrage across the political spectrum in Israel and among supporters of the embattled Jewish state worldwide, including this writer (https://blogs.timesofisrael.com/my-statement-on-iccs-issuance-of-arrest-warrants/). Of course, the announcement was welcomed by Iran, Hamas, Hezbollah, and other enemies of Israel, as well as by activists, academics, political figures, and others in the West and beyond who have bought into the baseless Israel-as-victim-turned-villain narrative, sometimes with knowledge of its falsity.

Officially, the ICC case is an entirely separate matter from the case that is pending before the International Court of Justice (ICJ), in which South Africa, subsequently joined by some other states, has asked that UN court to find that Israel’s defensive military operations in Gaza subsequent to the Hamas-led massacre, tortures, rapes, and mass kidnappings of October 7 amount to the commission of “genocide” of Palestinians, by killings and other actions “calculated to bring about their physical destruction.” (https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf) Former US Department of Justice colleagues and I, who, over more than 40 years, successfully prosecuted scores of perpetrators of Nazi genocide who found refuge in the United States after World War II have explained in detail elsewhere why the genocide accusation is a despicable calumny.  (https://www.nydailynews.com/2024/08/11/the-big-lie-of-genocide-gaza-seven-experts-on-nazi-genocide-expose-the-canard-of-israeli-crimes/). The genocide allegation has also been denounced by leaders of many nations, including those of the United States, France, and Germany (which, it hardly needs elaborating, has notorious “experience” with that particular crime).

But apparently overlooked in the heated controversy generated by the ICC’s November 21 statement on alleged Israeli war crimes and crimes against humanity is the fact the three-judge ICC panel – presumably unintentionally – has discredited South Africa’s genocide case at the ICJ. (I am particularly grateful to my colleague Elliot Malin for pointing this out to me.)

It is easy to see why the ICC’s November 21 statement almost certainly fatally wounds South Africa’s genocide case at the ICJ. Buried in that statement is this important sentence: “On the basis of material presented by the Prosecution covering the period until 20 May 2024, the [Court’s Pre-Trial] Chamber could not determine that all elements of the crime against humanity of extermination were met.” (https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges)

As is shown below, given that the ICC judges thus signaled on November 21 that sufficient evidence has not been found to prove “extermination” at the ICC – even at the low standard of proof applicable to arrest warrant issuance – it is virtually impossible that sufficient evidence exists to prove “genocide” at the ICJ, much less at the substantially higher standard of proof applicable to final ICJ determinations that genocide has been committed.

The offense of extermination is defined in the ICC’s 1998 governing treaty – the so-called Rome Statute – which lists prosecutable crimes against humanity as including “extermination.” It provides that the crime “includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population,” provided that, like other prosecutable crimes against humanity, it is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”

The ICC’s November 21 public statement doesn’t specify which element(s) of “extermination” could not be established by ICC Prosecutor Karim Khan to the judges’ satisfaction under the Court’s “reasonable basis to believe” arrest warrant standard. But it can be readily deduced from the description of the Israeli officials’ alleged actions set forth in the full text of the Court’s November 21 statement that what the ICC Prosecutor failed to establish regarding the crime of extermination was the Israeli officials’ supposed “intention” “to bring about the destruction of part of a population.”

The ICC’s arrest warrant standard, like that in the United States and elsewhere, is far lower, appropriately so, than the beyond-a-reasonable-doubt-standard applicable to subsequent conviction at trial. Crucially, it is also far lower than the standard of proof required by the ICJ in making genocide determinations in adjudicating disputes between nations: As the ICJ ruled in Bosnia v. Serbia in 2007, genocide must be proved before the ICJ “by evidence that is fully conclusive,” leaving the Court “fully convinced” that “the crime of genocide . . . [has] been committed.” (Paras. 208-209).

The crime of extermination obviously has much in common with the crime of genocide. Centrally, both crimes involve mass killings or other acts that target at least a part of a population for “destruction.” But to establish genocide, an additional element must be proved: the killings or other acts must have been “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” (This requirement exists under both the 1948 Genocide Convention, which is the treaty on which the ICJ’s decision will be based, and the genocide provisions of the ICC’s Rome Statute.)

Thus, the essential difference between extermination and lethal genocide is that only genocide requires prosecutors to prove that the intention to achieve the destruction of a part or all of a civilian population was based on the victims’ nationality, ethnicity, race, or religion, as such. Extermination, by way of comparison, requires only a showing of acts intended to bring about the destruction of a part of a population for any reason (for example, on the basis of real or suspected political opinion or affiliation, as was the case in the vast majority of the million or more killings perpetrated in Cambodia during the 1970s under the dictator Pol Pot – mass killings that some scholars have termed “politicide”).

Let us return, then, to the pending ICC and ICJ cases involving Gaza: As noted above, the ICC judges have signaled that they deem the evidence amassed for the alleged Israeli crime of extermination to be insufficient, for the obvious reason that the ICC Prosecutor has been unable to establish, even under the weak reasonable-basis-to-believe ICC arrest warrant standard, that Israeli leaders intended to destroy “a part of a population.” Barring the extremely remote possibility – bordering on the inconceivable – that South Africa and its co-litigants have discovered evidence that has somehow eluded the very experienced and far better-resourced staff of the ICC’s Office of the Prosecutor, genocide can’t be proved at the ICJ either, because the crime of genocide requires proof not only of an intent to destroy a part of a population (as in the crime of extermination) but also that the evidence “is fully conclusive” and that such evidence establishes that the alleged destructive intention was based on the nationality, ethnicity, race, or religion of that targeted population.

Solely on the facts, therefore, a truly objective ICJ should find it virtually impossible to grant South Africa’s request that Israel be found in violation of the Genocide Convention. Endorsing that cruel allegation (made in bad faith, moreover, by the same government that refused to execute the ICC genocide arrest warrant against Sudanese president Omar Al-Bashir when he visited South Africa in June 2015) would also be the height of irony, as Israel is the only Gaza combatant that is actually adhering to the Convention – including by acting there in accordance with its express and unconditional legal obligation under the Article I to prevent renewed genocide by Hamas, the avowedly genocidal dominant armed force in Gaza.

The Pollyannish bromide “Every cloud has a silver lining” has surely irritated the downtrodden and oppressed for ages, not least because, well, it just isn’t true.  But the ICC’s recent Gaza arrest warrant statement may well have a silver lining, however unintended, for Israel.

ABOUT THE AUTHOR

Attorney Eli M. Rosenbaum retired this year as the US Justice Department’s Counselor for War Crimes Accountability. For four decades, he investigated and prosecuted Nazi and other war criminals and human rights violators, receiving the Attorney General’s Award for Exceptional Service (USDOJ’s highest award) and Ukraine’s Order of Merit, conferred by President Zelenskyy for support rendered to Ukraine’s pursuit of justice following Russia’s 2022 invasion. He is a Harvard Law School graduate.