Trevor Norwitz

The ICJ: Another One Bites the Dust

Both Israel and South Africa/Hamas claim a bitter victory following the International Court of Justice (ICJ) ruling on South Africa’s application for preliminary measures to prevent Israel from committing genocide in Gaza.  Unsatisfying as that is, both are right.  On the one hand, the ICJ did not grant South Africa the sweeping relief it was seeking (ordering Israel to stop fighting against Hamas).  On the other, the fact that it did not dismiss the ludicrous allegation out of hand is a major propaganda victory for Hamas and South Africa, one that will provide much fodder for the long game of demonizing and isolating the Jewish state.

That old chestnut that if both sides are equally unhappy, the judges must have got it right only applies when the equities are well balanced.  Here they were not.  What Israel is doing in Gaza has absolutely nothing to do with the Convention on the Prevention and Punishment of the Crime of Genocide (the Convention), although the Convention certainly would apply to Hamas’ actions were it a state signatory.

It is disappointing, but not at all surprising, that the ICJ did not dismiss the allegation with the disdain it deserved.  Tossing it out would have been the right outcome both legally and morally, and one that maintained the integrity of the ICJ and of the law.  But it would have required more political fortitude than the judges on the court could muster (with one courageous exception) given the artful manner in which South Africa positioned the hearing.

There are many reasons the case should have been dismissed.  The most important is not (as many Jews may believe) because it is an obscene blood libel that will fuel anti-Semitism.  It is an obscene blood libel, but only because it is a bad legal decision in an area of particular sensitivity for the Jewish people.  Jews may know as a matter of certainty that their nation-state would never commit genocide, but they do not have a right to have others believe that.  They do have a right for Israel to be treated fairly under the law, as any other country would be treated.  And that they did not get, as the ICJ deviated from its own precedent and standards, and accepted the flimsiest, most diaphanous of evidence for the crucial determination it had to make to reach the outcome it considered politically expedient.

Sadly the ICJ has tarnished itself, joining the likes of the UN “Human Rights” Council and UNESCO as one more international institution to have its legitimacy and credibility undermined by anti-Israel hate.  And the integrity and moral authority of international law is weakened.  The very concept of genocide – which was proscribed in the aftermath of the Holocaust as the most heinous crime imaginable – has been degraded.  In the future, every time a powerful state responds to terrorist atrocities, any country supporting the terrorists can play the genocide card.  And, if the ICJ is consistent (which it may not be – there has always been a special standard for Israel), a new front will be opened in that dispute: the front of “lawfare,” the cynical manipulation of legal principles and institutions to achieve a political outcome.

South Africa’s cunning lawfare strategy put the ICJ in a tricky position.  After refusing to engage with Israel to discuss its allegations, South Africa filed with the court a staggeringly dishonest brief, and then asked the judges to intervene based on the limbo-bar low standard that “at least some of the acts alleged … are capable of falling within the provisions of the Convention.”  In other words, the Court being unable to address the merits at this stage without full evidence, had to accept as though they were true the allegations made by South Africa and, if the Court decided that any of them are capable of fitting within the Convention (which also proscribes among other things inciting genocide), the standard for it to take protective action would be met.  What judge does not want civilians protected in war, or hungry children to get food?

In their shamelessly disingenuous brief, South Africa spent many pages describing how Israel attacked civilians and civilian infrastructure – homes, schools, hospitals, mosques – without once acknowledging how Hamas had embedded itself within and weaponized those homes, schools, hospitals and mosques, or even noting that Israel says that they had.  To cite just one telling example of South Africa’s “selective” approach to the truth, despite Hamas having built (by Israeli estimates) 350 to 450 miles of military-use tunnels under Gaza with over 5,000 separate shafts, the word “tunnel” as it relates to the current war appears just once in their lengthy tome, and that is to criticize Israel’s one-time plan to flood some tunnels.  The South African fabulists then strung together a cherry-picked selection of quotes – generally made in shock and rage in the immediate aftermath of the most barbaric and sadistic terrorist attack in recorded human history, mostly by people with zero influence on Israel’s military activity, and often taken out of context – as their evidence of genocidal intent, which is the essential element of any of the genocide allegations.

Much has already been written about the ICJ judgement.  At this point, perhaps the most useful addition to the growing pile is a simple Q&A.

Did the ICJ find that Israel has committed, is committing or is attempting to commit genocide?

Absolutely not. While Israel’s enemies will try to misconstrue the decision, it is vital to note that this opinion explicitly did not address the merits of any of those questions.

 Did the ICJ order Israel to stop fighting?

No. Although that is what South Africa asked the ICJ to do, the ICJ did not order Israel to cease military actions against Hamas, at least implicitly recognizing that Israel has the right of self-defense.

Has the ICJ ever ordered anyone to stop fighting based on the Convention?

Yes.  In 2022, the ICJ ordered Russia to suspend its military operations in Ukraine.  While its refusal to issue the same order in this case shows that it appreciates the difference between the two situations, the existence of that recent precedent may help explain why they did not simply dismiss this case.

What was the finding the ICJ had to make to order the provisional measures it did?

The ICJ had to, and did, determine that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.”   In other words, the Court had to accept South Africa’s allegations as valid, and then decide if they could plausibly be capable of falling within the Convention.

What makes something fall within the provisions of the Genocide Convention?

The Convention defines the crime of genocide by reference to various acts (the sort of acts that happen in any war – killing, hurting, etc.) which are – and this is the essence – “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”  Assuming the acts and the “group” issue are not in contention, the question is whether Israel is acting in Gaza since October 7 with “intent to destroy” the Palestinians in Gaza as such.  Historically, the ICJ has – quite rightly given the monstrosity of the crime of genocide – had a high threshold for imputing this intent, which could only be inferred from a pattern of conduct if it was the “only reasonable inference that can be drawn” (Croatia vs Serbia).

What evidence did the ICJ consider to determine whether Israel plausibly has the requisite “genocidal intent”?

The ICJ based its momentous determination that it is “plausible” that Israel has genocidal intent – one that will fuel anti-Israel and anti-Semitic passion for decades to come – on two things: a short and lopsided version of the facts of Israel’s military actions in Gaza, and three quotes from Israeli politicians, which were misquoted, taken out of context, or irrelevant.  In one short paragraph, the ICJ cites Hamas-provided data on the number of Palestinians killed (without attribution to Hamas or noting that a large percentage of those killed – around a third according to Israel – were themselves fighters), refers to the destruction of housing units and civilian infrastructure (without referencing Hamas’ weaponization of those although they had robust evidence of that from Israel), and the “forcible displacement” of Gaza’s population (without noting that this was for their protection in accordance with international humanitarian law).  After citing a few paragraphs from UN and UNWRA sources about the suffering in Gaza (which no doubt exists), the majority summarily determined that “[i]n the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the claims made by South Africa … are plausible.”

Is the ICJ’s decision on imputation of intent consistent with precedent?

No. In one comparable example (The Gambia v Myanmar), the ICJ relied on reports prepared over two years by an independent fact-finding mission to establish that genocidal intent was plausible.  No such evidence was available in this case. Moreover, the ICJ noted that Israel had provided the court with substantial evidence of its efforts to minimize harm and facilitate assistance to Palestinian civilians, which are plainly inconsistent with any genocidal intent.  In short, in this case, the ICJ fashioned a new standard applicable to Israel.

While the ICJ did not have to, at this preliminary stage, decide if genocidal intent was the only reasonable inference that can be drawn from Israel’s actions, the evidence the court has, including about Hamas’ militarization of civilian infrastructure, is more than adequate to show that it is implausible that genocidal intent was the only inference that could be drawn.  The intentions that Israel has stated – to remove the military threat of Hamas and to bring back its hostages – are at the very least plausible.

What did the ICJ order and does that differ from standards already applicable to Israel?

The most important and yet most pointless substantive orders are essentially (although the language is somewhat tortured) that Israel must “take all measures within its power to prevent” committing genocide, and ensure that its military does not do so.  These orders are as meaningless (in that they add nothing to Israel’s existing obligations) as they are unnecessary (because Israel is not committing and would never commit genocide), but the one thing they do in spades is provide PR fodder for Israel’s sworn enemies.

Another order calls for Israel to “take all measures within its power to prevent and punish the direct and public incitement to commit genocide.”  Israel does have policies on inappropriate language by people in positions of power, but this order may cause Israel to be more forceful with bombastic extremists who say idiotic things, even though they have no influence on government or military policy.  That would not necessarily be a bad thing, but it is ridiculous for it to be a matter for ICJ enforcement when one can hear equally offensive rhetoric from anti-Semites on your average American college campus any day of the week (not to mention the incitement to genocide that Iran’s top leaders have been engaging in for decades).  Not all offensive speech is incitement, and Israel is, after all, a democracy that allows freedom of speech for all.

The ICJ also ordered Israel to “take immediate and effective measures to enable the provision of

urgently needed basic services and humanitarian assistance to address the adverse conditions of  life faced by Palestinians in the Gaza Strip.”  It is unclear if this will have any actual effect since Israel is already doing this, possibly more than any army in history has done for the civilian population of its enemy.  It is well known that Hamas hijacks and hoards much of the humanitarian aid delivered to Gaza, so the ICJ is essentially ordering a country fighting a terrorist force to ensure that its terrorist enemy receives supplies.  To the extent more aid gets to Palestinian civilians who need it, that would a good thing; to the extent it is diverted to Hamas and thus prolongs the war and these civilians’ agony, that is obviously not good.  In either case, issuing a court order for which there is no jurisdictional underpinning and that is redundant is not good law.

Did the ICJ direct any orders to Hamas?

The ICJ does not have jurisdiction over Hamas which is not a state but a (terrorist) non-state actor.  The ICJ did (at least) “call for” the immediate and unconditional release of the hostages held by Hamas.  Good luck with that.

If military action does not fall within the provisions of the Genocide Convention does that mean no law applies to it?

Of course not. The appropriate legal regime governing warfare is international humanitarian law, including its requirements that belligerent parties only attack military and not civilian targets (the principle of distinction) and that the anticipated harm to innocent civilians and civilian infrastructure not be excessive in relation to the military advantage anticipated from a strike (the principle of proportionality).   It is Israel’s policy to adhere to international humanitarian law, even thought is Hamas core strategy to violate and exploit it.

Did the ICJ majority seem to understand the facts of the case?

If they did, they hid it well.  The majority opinion gives no indication that it knows that Hamas embeds its substantial military capability within civilian infrastructure in Gaza, or that the ratio of fighters to civilians killed by the Israel Defense Forces appears to be in the order of one to two, comparing very favorably with other modern urban wars (with this war being fought in much more difficult circumstances).   If the majority did know those facts but decided not to mention them in its opinion, that must mean that they did not consider them relevant.  But it is hard to fathom how one can establish the plausibility of  “genocidal intent” without considering those facts, which were certainly available to the court.  The lone dissenting regular jurist, Judge Sebutinde, who must be commended not just for her analytical clarity and her wisdom but for her courage to stand alone for what she knows is right, certainly had access to the facts.  She wrote: “Unfortunately, the scale of suffering and death experienced in Gaza is exacerbated not by genocidal intent, but rather by several factors, including the tactics of the Hamas organization itself which often entails its forces embedding amongst the civilian population and installations, rendering them vulnerable to legitimate military attack.”

The majority option does at least acknowledge, albeit if in the most benign and anodyne of terms, that the war started with Hamas’ invasion on October 7.

If this decision is so bad, why would 14 judges of the ICJ make it? 

 The ICJ is ultimately a political body.  It is worth noting that several of the ICJ judges come from countries that either do not recognize Israel’s right to exist, or align with the Palestinian cause if not with Hamas specifically.  For some of those judges, their livelihood (if not their and their families’ very lives) depend on their doing what their nation’s leaders expect of them.  Peer pressure is a powerful motivator too. The German judge (perhaps understandably discomforted at the notion of sitting in judgement over the Jewish state in a genocide case) determined that it was not plausible that Israel had the requisite genocidal intent, but still found a way to join with the crowd.  Some may just be bamboozled.  The Indian judge, for example, in his separate statement said that more than 25,000 civilians in Gaza have lost their lives whereas not even Hamas has been saying that (although in fairness to him, he is the only of the majority judges to have at least paid lip service to the brutality of the October 7 Hamas attacks).  I would not want to speculate on the motivations of individual judges from democracies like the USA, France and Australia.  Perhaps having ordered Russia to stop fighting Ukraine two years ago under on the Convention, they felt that could not just toss this case.  Perhaps this is just their way of being democratic, knowing that there are billions of people who passionately hate Israel and Jews (often just because of where they get their information from), and only a small fraction of that number who feel the other way.  The law is not really supposed to work like that but judges are human.

Why would South Africa bring these claims?

Finally, the million dollar question.   South Africa would have you believe that is acting as a good Samaritan (pun sort-of intended), to enforce international law.  (Yes, this is the same South Africa that a few years go flouted its obligations to the International Criminal Court by orchestrating the escape of indicted war criminal Omar al-Bashir, subject to an arrest warrant for his “activities” in Darfur.)  Part of the explanation may be the ruling ANC party’s historical allegiance with the Palestinian cause, although that historical relationship was with the PLO, not Hamas, and the ANC for all its vaunted corruption and incompetence never embraced murderous violence in the way that Hamas does (or even the PLO did).  The influence of South Africa’s relatively small but highly radicalized Muslim community (including the Minister of International Relations Naledi Pandor, a convert to Islam) may be part of the explanation but is unlikely to be decisive.  History has no shortage of examples of failed leaders seeking to divert the attention of their frustrated masses (and often enough in history the scapegoat has been the Jews).  But lawyers are expensive and it is unlikely a country that cannot even afford to provide electricity would choose to use its budget this way.  The real explanation may be something more prosaic.  There have been reports that the ANC is being paid by Iran to carry this foul water for Hamas.  Even if true, this would likely be hard to prove, Iran being among the world’s most expert money laundering countries.  We may well hear more on that.

About the Author
Trevor Norwitz is a practicing lawyer in New York, who also teaches at Columbia Law School.
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