Introduction
The recent application by South Africa to the International Court of Justice brought against Israel under the Genocide Convention illuminates how international law and international institutions can be employed to address the Israel-Hamas war. It provides lessons for how some strategies may be well intended, but the measures chosen can undermine efforts to get States to comply with their international legal obligations.
In two of our previous essays about the war, we have commented on the limited ability of certain international law claims to influence State conduct because of flaws in the legal argument they use: one being the tendency to base specific arguments about breach of legal obligations on controversial legal assumptions without critically evaluating those assumptions (e.g., claiming that Israel violated its duty to provide electricity to Gaza without exploring whether the laws of occupation applied at the time, in full or in part) and another being the introduction of new interpretations of international law tailor-made for specific parties to the conflict (e.g., requiring Israel to follow innovative approaches to jus ad bellum proportionality, which we argue have never been applied before to international armed conflicts).
The current debate surrounding the application of the Genocide Convention exposes a third potential flaw in legal argumentation regarding the war – a tendency to engage in factual cherry picking and to ignore “inconvenient facts” when engaging in legal analysis of complex facts. Like assuming away legal preconditions and developing overly innovative approaches to international law , selective engagement with the facts also undermines the persuasiveness of legal claims that are predicated on them. Such tactics can perhaps facilitate some short-term victories in the court of public opinion (and result in provisional measures in international adjudication), but they are unlikely to ultimately carry the day in a court of law or influence State conduct. In fact, selective engagement with the facts may result in disincentivizing States in the long run from heeding calls to follow international law.
The South African application builds on allegations of genocide that have been directed against Israel from the very start of the war (see for example here and here) (note that Israeli officials have also suggested that the Hamas atrocities committed on 7 October 2023 amounted not only to war crimes and crimes against humanity, but might have also constituted acts of genocide; this suggestion exceeds the scope of the present contribution). The definition of genocide is not at issue here. It is well settled and commonly agreed in these discussions that genocide involves killing members of a national or ethnic group, causing serious bodily or mental harm to members of the group and inflicting conditions of life calculated to bring about the group’s physical destruction in whole or in part. Rather, the issue here is about the alleged facts and the application of that law to the facts.
The crux of the Israel genocide allegations are as follows: (a) measures taken by Israel during the war in Gaza have resulted in large scale loss of lives of Palestinian civilians (it has been widely reported that more than 20,000 Palestinians have died in the war; even according to Israeli sources the majority of those killed are civilians), many others were injured and very harsh humanitarian conditions exist throughout the Gaza Strip (see e.g., reports on the food crisis). Given the deliberate nature of the military attacks, population displacement and limits on access to certain humanitarian provisions, it is alleged that Israel is responsible for destructive acts that could qualify as genocide; and (b) the pattern of destructive acts and the statements of senior Israeli officials is indicative of the special genocidal intent required under the Genocide Convention – the purpose of trying “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
Israel, for its part, claims that its military attacks and other means and methods of warfare are compatible with international humanitarian law (IHL) and accordingly the destructive acts attributed to Israel cannot conceivably be qualified as acts that are genocidal in nature. It is beyond the scope of this note to discuss this broader claim regarding legality of the Israeli military operations. We focus instead on the second part of the Israel genocide allegation – the crucially important existence of special genocidal intent. It is in this connection that we address the problem of selective application of law to facts.
Applying the Law on Genocide to the Facts in Gaza
Questions regarding Israel’s military operations in Gaza and their harsh consequences have been raised since the beginning of the conflict. Some observers discussed IDF policies of target selection, precautionary measures and proportionality analysis. Other observers raised questions concerning the measures taken to evacuate large parts of the residents of the Gaza Strip from their homes and the restrictions placed on access to humanitarian provisions in different parts of the Gaza Strip. Still, even if one were to reject Israel’s justification of these acts under IHL, the harsh consequences associated with these policies do not, on their own, prove genocidal intent.
To recall, in its judgment in Bosnia v. Serbia (2007), the International Court of Justice accepted the possibility of inferring special genocidal intent from a pattern of conduct, but insisted that: “for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent” (para. 373). In other words, in order for the Court to infer the existence of genocidal intent from a pattern of conduct it must be “the only inference that could reasonably be drawn from the acts in question” (Croatia v. Serbia (2015), para. 148). Accordingly, regardless of whether South Africa could meet the low threshold required at the jurisdictional stage (The Gambia v. Myanmar (2020, para. 56), the question at hand is whether it could ever satisfy the Court on the merits with respect to the existence of genocidal intent.
Proponents of the Israeli genocide claim before the ICJ must therefore contend, as a legal matter, with counter facts, which put into question the existence of a consistent pattern. Note that the ICJ required “persuasive and consistent evidence” for such a pattern to emerge (para. 242), and, even if a pattern does exist, with the possibility of pointing to no other reasons for engaging in the pattern (see also the Court’s “fully conclusive” standard of proof in Croatia v. Serbia, para. 178). In this vein, such proponents would have to explain:
(a) the extent to which a host of measures taken by Israel to minimize civilian casualties are consistent with the existence of genocidal intent (such as extensive use of early warnings and measures to facilitate greater access to humanitarian provisions, such as the opening of the Kerem Shalom crossing);
(b) whether tactical or strategic reasons other than an intent to destroy the Palestinian people “as such,” such as military necessity, force protection or deterrence, can be plausibly inferred from the attacks made and measures taken (even if the weight given to these considerations by Israel exceeds what international law allows, and even if they violate international law prohibitions limiting the use of force or means and methods of warfare or advance illegal purposes other than genocide). In this respect it might be relevant to mention that nowhere in the South African application is it mentioned that Hamas embedded itself within the civilian population in Gaza strip, systematically using civilians and civilian infrastructure as human shields, and effectively rendering it impossible for any attack directed against its military apparatus not to cause significant collateral damage; and
(c) given Israel’s capacity to inflict much more harm to civilians in Gaza than it has done, whether the military campaign cannot be more plausibly explained as one that is directed against Hamas, as was articulated repeatedly by Israeli senior leaders, than one that is directed against the Palestinian people of Gaza?
Without dealing with these “inconvenient facts,” it is difficult to see how a violation of the Genocide Convention could be substantiated under the “pattern of conduct” test, especially given the very high threshold placed by the ICJ for establishing a pattern and for inferring special genocidal intent from it. Of course, any counter factual assertions raised in this regard, including those bordering on the conspiratorial – e.g., that Israel’s harm mitigation measures are merely designed to mask its “true intentions” – need also be supported by actual evidence for such a nefarious plan in order to meet the Bosnia v. Serbia and Croatia v. Serbia standard.
The second prong of the Israeli genocide claim is that statements by Israeli officials and public opinion influencers constitute incitement to genocide. Note that two distinct legal issues are at stake, in this regard: The duty to suppress incitement to genocide and evidence for State sponsorship of genocide.
The Genocide Convention requires Israel, as a State party, to suppress “direct and public incitement to commit genocide,” regardless of whether genocide has actually transpired. It goes beyond the remit of this contribution to comprehensively address this rather complicated issue. It suffices to note here that according to the ICTR Appeals Chamber judgment in the Media Trial (2007), direct incitement cannot be “a mere vague or indirect suggestion” (para. 692) and that the potential danger of the speech in question need to be assessed in context. When viewed from this perspective, it is questionable whether all of the alleged instances of incitement to genocide mentioned in the South African application meet the ICTR standards: Some of the assertions are ambiguous (e.g., the Prime Minister’s allusion to Amalek or the Minister of Defense’s allusion to “human animals” could be attached to Hamas and not to the Palestinian people, or the President’s allusion to collective responsibility that can be understood as referring to moral responsibility at an abstract level and not to specific notions of participation that would justify harm to civilians). Other, more problematic statements were uttered by marginal figures such as political back benchers (see e.g., here) who have no real influence and limited public clout. Their calls for genocide are highly unlikely to materialize.
Still, it does appear to us that Israel has failed – so far – to criminally investigate some specific public calls which seem to border on genocidal in their language. While Israel’s political leadership distanced itself from potentially genocidal language, it has also failed to apply meaningful political sanctions against the politicians making these comments (such as firing instead of merely suspending the junior minister responsible for the Atomic Bomb comment or launching any effort to remove the deputy chair of the Knesset after making the “burn Gaza” comment). Although there might be some mitigating circumstances, given the many challenges the country now faces, the slow and feeble response from Israel’s legal and political leadership to such extremely problematic statements, may not be compatible with its obligations under the Genocide Convention.
In South Africa’s application, such statements serve however another, more central role than the obligation to suppress incitement to genocide: The potentially genocidal statements are used to attribute to the State of Israel the special intent to destroy. Here, closer scrutiny of the law and facts put the case of those claiming that Israel is committing genocide in serious doubt. For example, many of the speakers cited in the South African application are not part of the executive branch or do not hold any public office at all. Whether their speech is legally attributable to the State is thus highly questionable (for example, the ILC articles on state responsibility are silent on the question of attributing political statements by parliamentarians to the State). As indicated above, some of the statements are also open to multiple interpretations and do not clearly show a genocidal intent.
What’s more, the reference to potentially genocidal statements is highly selective, The application omits any allusion to other statements issued by senior officials, including sometimes the same officials who have allegedly made potentially illegal statements but retracted them or clarified their meaning. For example, Prime Minister Netanyahu has stated in response to Minister Amichai’s Atomic bomb statement that such statements “are not based in reality. Israel and the IDF are operating in accordance with the highest standards of international law to avoid harming innocents”; Defence Minister Gallant has stated that “our war against Hamas, the Hamas terrorist organization, is a war — it’s not a war against the people of Gaza”; and the IDF Chief Spokesperson has similarly communicated that “[o]ur war is against Hamas—not the people of Gaza. We are taking extensive measures to mitigate harm to the civilians that Hamas uses as shields.” In the same vein, in the same press conference in which President Herzog made the regrettable statement regarding the collective responsibility of the residents of Gaza, which is mentioned in the South African application, he also clarified (a fact which is unfortunately omitted from the same application) that he did not imply that civilians are legitimate targets, and actually walked back the collective responsibility claim in response to a question (“Of course there are many, many innocent Palestinians who don’t agree to [terrorism]”).
The upshot of this analysis is that any assertion that Israeli officials and public opinion influencers have been calling for genocide, at a minimum, has to grapple with the voluminous evidence that suggests the opposite – that is, that the official position of the government and the IDF is to clearly distinguish between Hamas and the civilian population in Gaza and to direct the military operation only against the former. As indicated above, key aspects of the military operation, like advance warnings and opening of a new border crossing, are consistent with this official position. This competing narrative to the Israeli policy allows us to regard most of the alleged genocidal statements as outliers, and – at times, as forms of criticism of the IDF policies which are deemed by those making the statements as “too humane.” When viewed from these contexts, the wild – and possibly illegal – statements issued by individuals situated outside decision making circles, actually reinforce the position that the official policy of the state of Israel and the IDF is not genocidal in nature.
Concluding Remarks
The Israel-Hamas war raises several questions regarding compliance with international law. To our minds, the legality of IDF practices regarding target selection, proportionality analysis and access to humanitarian provisions deserve close scrutiny. Still, such scrutiny must be fact-sensitive and be based on all available information. The raising of even more serious charges – such as the commission of genocide, the “crime of crimes” – requires an even higher commitment to factual analysis, which should include all relevant facts, including those “inconvenient” to whoever is making such claims. Many of the allegations made in this regard, including those found in the recent South African application to the ICJ appear to fall short of this standard. Still, we do consider the South African application as potentially useful in drawing more attention to the positive obligations of the State of Israel to suppress incitement to genocide and to address potentially genocidal statements made in public by Israeli influencers and politicians.
On another level, the use of selective application of law to facts by South Africa could also be considered against the possibility that its reference to the ICJ was “tailored” to focus on the Genocide Convention simply because Israel, as a party to the treaty, is subject to the Court’s jurisdiction in relation to this specific international law norm, but not with respect to other relevant norms. Such motivations may make sense from the point of view of those opposing Israel’s policy in the Gaza Strip as a means for criticizing these policies and attempting to stop them through judicial avenues. Yet, making problematic legal claims in order to meet jurisdictional conditions does not serve the interest of promoting international law’s effectiveness and credibility in the long run, especially when those claims would nowhere near suffice if the Court ever addresses the merits. We fear that if terms such as genocide were to be used loosely in order to achieve immediate political or tactical legal goals, overall respect to international law as a credible system of norms will diminish.
Photo credit: The Peace Palace, seat of the International Court of Justice, at The Hague, Netherlands (United Nations Photo)