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The International Court of Justice (ICJ) today began a landmark hearing to determine whether Israel’s devastating war on the Gaza Strip amounts to the crime of genocide. While the deliberations on that question could take years, South Africa, which filed the lawsuit, is aiming for the ICJ to issue several interim orders, including requiring Israel to immediately suspend its military operation; a ruling on these provisional measures could be issued within weeks. Whether or not Israel would obey is another matter.
In an 84-page document submitted ahead of the hearing, South Africa alleges that Israel has violated the 1948 Genocide Convention — to which both states are signatories — because its current actions “are intended to bring about the destruction of a substantial part” of the Palestinian population in Gaza. At the time of the hearing’s opening, Israel is reported to have killed over 23,350 Palestinians and forcibly displaced 85 percent of the Strip’s population over the past three months of hostilities. The tightening of the siege since the Hamas-led attacks of October 7 has also resulted in conditions of severe starvation and the growing risk of mass death from disease.
In a move that bucks its longstanding proclivity for boycotting hearings at international courts, Israel has chosen to assemble a legal team to defend itself. Two decades ago, Israel refused to participate in an ICJ hearing concerning the legality of the separation barrier it had built in the occupied West Bank, and has likewise snubbed more recent proceedings regarding the legality of the occupation. Israel has also boycotted hearings into its conduct at the International Criminal Court (ICC), a separate entity from the ICJ which is located just across the street in The Hague.
Michael Sfard, one of Israel’s leading human rights attorneys who deals extensively with the state’s violations in the occupied territories, is very familiar with this arena. Like many lawyers, he is in no hurry to wager on the outcome. That said, in an interview in his office earlier this week, he told +972 and Local Call that South Africa can certainly reach the threshold of proof required at this stage for an interim order instructing Israel to stop the fighting in Gaza. An order could also be issued requiring that Israel report to the Court on how it is acting to prevent genocide, and how it is dealing with the incitement to genocide emanating from its own political leaders.
While noting that the ICJ is in many respects a “conservative tribunal,” Sfard adds that it nonetheless represents the entire world — the majority of which is non-Western. As such, it has historically had empathy for weak and oppressed peoples, and was instrumental in the struggle to end apartheid in South Africa. Now, in solidarity with Palestinians, South Africa leads the charge against Israel.
The following conversation has been edited for length and clarity.
Set the scene for us: what is the ICJ, and why is the hearing taking place there?
The 1945 UN Charter — signed by all UN members, including Israel — affirms that the ICJ is the UN’s supreme legal organ. The Constitution establishes two powers for the Court: issuing advisory opinions, and ruling in cases between states. The Court’s verdicts are binding on the states that have signed the UN Constitution. A state can agree in an ad hoc manner that a particular dispute will be litigated by the ICJ, or invoke signed treaties containing a clause that establishes ICJ jurisdiction over disputes relating to those treaties.
Israel has always had reservations about the jurisdiction clause, and has refrained from agreeing to ICJ jurisdiction in all the hundreds of treaties it has signed, except one: the Genocide Convention. Article 9 of the Convention stipulated that if disagreements arise between the members over the Convention’s authority or interpretation, the ICJ is the place to hear them.
ICJ decrees are enforced by the UN Security Council. Chapters 6 and 7 of the UN Charter allow for a range of sanctions against countries that violate the Court’s ruling, such as economic sanctions, arms embargoes, and military intervention. The latter is rare but it has happened, for example in the first Gulf War.
Why did Israel sign up to ICJ jurisdiction in the Genocide Convention?
I’m not a legal historian; I can only guess. Israel was one of the initiators of the treaty, and historically one can understand why Israel would have pushed for such a treaty in the late 1940s and early 1950s. Secondly, I think that back then, the popular Israeli notion that we do not let gentiles judge us had not yet developed. We are talking about an era in which the international system had recently decided to establish a Jewish state. Maybe there was a little more trust in that system back then.
What constitutes a violation of the Convention?
The background to the Convention is World War II, and especially the Holocaust of the Jewish people. Contrary to what many people think, the Nazis were not tried for genocide. The crime of genocide did not exist in the “London Agreement,” which is the charter of the Nuremberg Military Tribunal. They were tried instead for the crime of extermination. But after Nuremberg, the argument arose that the crime of extermination was not enough, and that it did not grasp the peculiarity of mass extermination designed to wipe out a human group.
This was a fascinating debate between two Jewish jurists, both Holocaust survivors from Lviv in what is today Ukraine: Raphael Lemkin, who coined the term “genocide,” and Hersch Lauterpacht, who coined the term “crime against humanity.” Their disagreement revolved around whether murdering a million people, because they belong to a certain group and with the aim of eradicating that group, is worse than murdering a million people without this specific intention.
Lemkin’s interpretation was not expressed in Nuremberg, but later the UN decided to designate genocide as a special category in and of itself, often calling it “the crime of crimes.” It is defined as an act of extermination, or creating conditions that will annihilate a particular group with the intention of eradicating that group or even a distinct part of it.
The Convention, which was integrated into Israeli law in 1950, states that a soldier or civilian who kills a person, even one, while aware that he is part of a system aimed at annihilation, is guilty of the crime of genocide. In Israeli law, the punishment for this is the death penalty. This also applies to those who conspire to commit genocide, those who incite genocide, and those who attempt to participate in genocide.
What is South Africa basing its lawsuit on?
South Africa bases its accusation on two elements. One is Israel’s conduct. It cites a great deal of statistics about the indiscriminate, disproportionate attacks on civilian infrastructure, as well as about starvation, the huge number of casualties, and the humanitarian catastrophe in the Strip — horrifying statistics that the Israeli public is barely exposed to, because the mainstream media here does not bring them to us.
The second and more difficult element to prove is intent. South Africa is trying to prove the intent through nine dense pages of references to quotes by senior Israeli officials, from the president to the prime minister, government ministers, Knesset members, generals, and military personnel. I counted more than 60 quotes there — quotes about eradicating Gaza, flattening it, dropping an atomic bomb on it, and all the things we’ve gotten used to hearing in recent months.
South Africa’s case does not rely only on the fact that some Israel leaders have made genocidal statements. It further charges that Israel has done nothing in response to these statements: it hasn’t condemned the statements, it hasn’t dismissed from office the people who expressed them, it hasn’t opened disciplinary proceedings against them, and it certainly hasn’t opened criminal investigations. This, as far as South Africa is concerned, is a very strong argument.
Even if we haven’t heard the IDF Chief of Staff or the General of the Southern Command say these things, and we don’t have an operational order that says, “Go and destroy Gaza,” the very fact that these statements have been made by senior Israeli officials without sanction or condemnation sufficiently expresses Israel’s intention.
South Africa also pulled a little legal stunt to get here, correct?
Yes. The jurisdiction of the Court is determined when a dispute arises between the parties over the interpretation or application of the Convention. South Africa sent several letters to the Israeli government saying, “You are committing genocide.” Israel responded, “No we aren’t.” So South Africa said, “Okay, we have a dispute over the interpretation of the Convention.” That’s how it got the authority.
What can we learn from similar ICJ cases in the past, such as those regarding genocides in Bosnia and Myanmar?
First of all, we know from these cases that the burden of proof on South Africa is significantly lower for obtaining an interim order than for ultimately proving that Israel is committing genocide. We also know that this case will continue for years: the Bosnia case took 14 years; Gambia v. Myanmar is still ongoing. But the procedure for an interim order is fast.
Gambia filed its case against Myanmar on behalf of the Organization of Islamic States. It asked for an interim order stating that Myanmar must cease its military operations [against the Rohingya people]. The Court ruled that at this stage of the hearings, it did not need to determine whether the crime of genocide had been committed. What it needs to decide is whether, without an interim order, there is a real danger that the prohibitions set out in the Genocide Convention will be violated.
An interesting interim order was issued in that case, which I think has a good chance of being issued to Israel as well — not in the context of military activity, but of incitement. The Court’s order also required Myanmar to take enforcement actions and submit reports to the ICJ and Gambia on what it was doing to prevent genocide. As for the cessation of Myanmar’s military activity, this matter went to the Security Council, where both Russia and China threatened vetoes, but Western countries imposed sanctions and a military embargo anyway.
So even if South Africa fails to make the Court issue an interim order to stop Israel’s military activity, it could be that in the context of incitement — which enjoys full immunity in Israel — the Court will say that Israel needs to do something.
What claims can we expect to hear from Israel’s legal defense?
I don’t think Israel can dispute the facts [regarding its conduct in Gaza]. On the margins, it might say, “We didn’t destroy 10,000 buildings, only 9,700.” The main arena of the legal battle will be over the question of intent. For example, the forcible transfer of over 1 million Palestinians from the northern Gaza Strip to the south will be presented by Israel, I suspect, as intended to prevent harm to civilians.
Whereas South Africa will argue that transfer endangers their lives.
If you displace people to an area where there is no food or water, then you are forcing them to a place where the conditions are such that they are calculated to cause their death; this, while not [direct] murder, is still considered genocide.
Will Israel have to disclose its rules of engagement?
If it is stated in the army’s rules of engagement [which are kept secret] that you do not shoot someone whose hands are raised — and I don’t know if it is — then this is important. It would undermine the thesis that the army went in to eradicate everyone.
Israel’s stated efforts in allowing humanitarian aid to enter Gaza — even if it is only lip service — has created what lawyers call a “paper trail.” But Israel will still have to explain the genocidal statements made by officials, especially cabinet ministers.
By saying that they’re stupid?
Yes. In general, Israel could say that [certain officials] are stupid or unimportant — that [Finance Minister] Bezalel Smotrich and [Heritage Minister] Amichai Eliyahu have no influence over the military operation in Gaza. Israel will have to make a big deal out of the very minor rebuke that Netanyahu gave to Eliyahu [after the latter suggested that Israel could drop a nuclear bomb on Gaza] when he said that Eliyahu was banned from attending cabinet meetings, but Eliyahu attended them anyway. Israel will say that Netanyahu publicly condemned the statement.
Will Israel refer to the Hamas-led attacks of October 7?
Without a doubt. They will frame the entire war through its own narrative: “This is not a war that we initiated or wanted. On the contrary, there was an entire humanitarian system vis-à-vis Gaza, Gazans worked in Israel, and they attacked us, slaughtered us, raped our women, and then we embarked on a justified defensive war like no other. Therefore to say that we have some kind of conspiracy to eradicate the Palestinians is a misunderstanding of the context in which this military operation took place.”
But even if it is possible to accept the claim that there was no conspiracy to eradicate the Palestinians prior to October 7, it does not contradict the fact that October 7 may have produced such a desire.
Who is there on behalf of South Africa?
South Africa sent Dikgang Moseneke, the country’s former Deputy Chief Justice, to be South Africa’s ad hoc judge in the hearing. Moseneke, who is black, was an anti-apartheid activist who sat for 10 years in prison on Robben Island at a time when Nelson Mandela was also incarcerated there.
The head of South Africa’s legal team is Professor John Dugard, who is white, and was also an opponent of the regime. He founded the most important legal institute that fought against apartheid in the 1970s, and was the UN Special Rapporteur for the occupied Palestinian territories in the 2000s — he knows the Israeli occupation very well. And, in the interest of full disclosure, I’m also very friendly with Dugard. He recently published an autobiography in which he stated that during his life he experienced three apartheids: the first in South Africa, the second in Namibia, and the third in Israel and the occupied territories.
These two figures arrive at the ICJ with significant moral standing. So too does South Africa itself: the new South Africa brands itself as the spearhead of the international community when it comes to respect for international law. It is perhaps the only country in the world that has enshrined international law as a constitutional principle.
What do you make of Israel selecting the British barrister Malcolm Shaw to present its defense, and former Supreme Court President Aharon Barak to be its ad hoc judge on the panel?
Shaw is a professor of international law, one of the world’s greatest experts in the field. In the 1980s, he wrote a book that was very creatively named “International Law,” and was subsequently reissued six times — I have a copy here in the office. He also has a lot of experience representing states in international tribunals, a lot of them to do with border disputes.
Much has already been said about the appointment of Barak. From Israel’s perspective, it’s a stroke of genius. Barak has a lot of prestige around the world. Israeli human rights activists like me know two Baraks: the one inside the Green Line, and the one beyond the Green Line. It really is a case of Dr. Jekyll and Mr. Hyde. Which Barak will turn up at The Hague? It’s a good question.
The fact that Barak is a Holocaust survivor is definitely important. He brings with him first-hand experience of genocide — it’s not just something theoretical or legal for him. I think whoever selected him understood that if there is a chance that any Israeli will be able to sway or convince the other judges in their internal discussions, it’s him. It’s his charisma, it’s the prestige that accompanies his name, and it’s his legal mind.
By the way, those who are saying that he is there “representing Israel” are shooting themselves in the foot. He is appointed by Israel, but from that moment on he is supposed to be loyal only to international law and to his own conscience.
But if he does not rule in Israel’s favor, he has nowhere to come back to…
Correct.
I know lawyers don’t like to wager on the results of court hearings, but if the ICJ does produce an interim order, what will that mean for Israel?
If the Court issues an order, the question is of course whether Israel will obey it or not. Knowing Israel, I expect that it will not obey the order, unless it can present the ending of hostilities as the result of its own independent decision, unrelated to the Court order.
There are good reasons for Israel to do this, because disobeying an ICJ order brings things to the UN Security Council. It’s true that the United States has a veto there, and therefore a resolution to impose sanctions on Israel would most likely be blocked. But vetoing an ICJ order regarding concerns that genocide is taking place would come at an enormous political price for the U.S. government, both domestically and internationally.
The Biden administration wants to portray itself as a government that sees human rights as one of its pillars. So it is likely that the United States would only veto such a resolution while imposing a significant cost on Israel in order to justify doing so, such as allowing the residents of northern Gaza to return to their homes, or entering into negotiations over two states — I don’t know.
But even if the United States doesn’t use its veto in that scenario, an interim order from the ICJ is likely to cause Israel serious problems.
There is such a thing as an international legal “deep state.” Jurists and judges listen to what important courts say. And when the ICJ, also known as the World Court, makes its rulings, national courts in most of the Western world take note. Therefore, if the ICJ rules that there is a danger of genocide being committed, I can imagine a British citizen turning to a British court and demanding that the UK cease trading arms with Israel. Another implication is that such an ICJ ruling would likely force the ICC’s chief prosecutor [Karim Khan] to open an investigation of his own.
And what would an Israeli victory in the Court do?
In the event of a resounding Israeli victory, this will double, triple, quadruple, quintuple Israel’s hasbara [propaganda] regarding other accusations which may be easier to prove than genocide. Because if someone says to Israel, “You are committing the crimes against humanity of forced transfer and of indiscriminate and disproportionate bombings,” Israel will say, “This antisemitic blood libel again? We’ve already proven that the accusations against us are false.”
So South Africa and the Palestinians are taking a gamble here?
It is a gamble. In every legal proceeding — from a lawsuit over a breach of rental contract to a lawsuit over genocide — there are always risks. However, I think that a resounding Israeli victory is very unrealistic, because at least regarding the incitement, Israel will not have good answers for the Court.
Within what time period is the Court’s decision expected?
There are no set rules, but in the Gambia v. Myanmar case, there was a decision within a month. It should be remembered that this [Gaza] case will continue after the hearing on the interim order. Israel will have to present evidence that will exonerate it from the claim that it is committing genocide, but in doing so could get into difficulties with the ICC. For example, it may explain that it bombed a certain place because it was pursuing a military objective, but it may thereby make admissions that create a basis for the claim that it used disproportionate force.
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And on a personal note, how do you view the fact that Israel stands accused of genocide?
I come from a family of Holocaust survivors, and the very fact that we are even talking about this, and that the accusation is not without grounds, is heartbreaking. My grandfather, the sociologist Zygmunt Bauman, wrote about the syndrome of victims who aspire to become victimizers, and why efforts must be made to prevent this. I fear that we have failed.
A version of this article was originally published in Hebrew on Local Call. Read it here.