What Happens If The ICJ Finds Israel Committed Acts Of Genocide?
Since South Africa accused Israel of committing genocidal acts against Palestinians in Gaza, the international community has eagerly awaited the ruling by the International Court of Justice (ICJ).
The case argues that Israel breached Article II of the UN Genocide Convention by committing acts of genocide against Palestinians. The Article says that acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group count as genocide if any of the following occurs: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about it’s physical destructions in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group.
The Palestinian death toll from Israeli attacks on Gaza since October 7 has now amounted to over 25,700 and 63,000 wounded. South Africa has asked for an order from the UN demanding Israel halt its attacks on Gaza. But will that actually happen?
Ahead of the ICJ’s interim ruling, Junkee spoke to Donald Rothwell, Professor of International Law at Australian National University to break down the ICJ’s processes, the potential outcomes of South Africa’s case, and what they might mean for Palestinians.
As a primer, here are the key arguments from South Africa’s case:
There is a plausible argument that genocide is currently taking place in Gaza and will continue unless the ICJ issues the provisional measures orders that have been sought.
There is significant evidence of genocidal conduct by Israel as defined under Article II of the Genocide Convention.
Based on the public statements of Israeli politicians, military leaders and public officials, there is significant evidence of genocidal intent.
The ICJ has prima facie jurisdiction to resolve this dispute under the Genocide Convention.
The matters before the ICJ are urgent and the provisional measures seek to ensure there is no irreparable harm to the Palestinian people.
The right of self-defence under international law does not excuse acts of genocide.
Here are Israel’s rebuttals:
Hamas committed acts of genocide during the 7 October 2023 attacks on Israel. Those attacks are ongoing.
The ICJ does not have jurisdiction to determine this matter as there is no dispute between South Africa and Israel.
There is no evidence that acts of genocide have occurred as it is understood under the Genocide Convention.
Israel’s response to the October 7 Hamas attacks have been consistent with international law and especially international humanitarian law.
The statements by public officials have been taken out of context.
Israel is entitled to exercise a right of self-defence.
The provisional measures sought by South Africa are not appropriate.
With its ICJ case, South Africa is performing as “the legal arm of Hamas”.
Ky Stewart, Junkee: What is the significance of the genocide case brought by South Africa?
Professor Donald Rothwell: There are two points to the significance. First, the symbolism of the State of Israel being taken to the International Court of Justice for allegations of having engaged in acts of genocide is incredibly significant. Given the Genocide Convention was negotiated following the Holocaust, Israel was a state created following World War II, and following a significant global momentum to create and recognise a Jewish homeland, there’s just incredible historical, cultural, political significance associated with that.
I guess the second point more directly relates to the current conflict in Gaza and how the court might hand down its orders. If it accepts the South African claim, the orders of the court could have a real impact on the direction of the current conflict between Israel and Hamas.
How will the outcome impact the direction of the conflict?
Of course, at the moment, this is all just speculation because we don’t have the court’s ruling. Broadly speaking there are three options: one is that the South African case is unsuccessful, the second is that the case is successful and the court accepts all of the orders that South Africa sought from it, and the third is that the court does accept the South African case but issues some varied or modified orders. In my view, I think the second and third options are the most probable and that’s really all I can say at the moment. We just need to wait and see if [the ICJ] does accept that South Africa has been able to present a case that there’s evidence Israel has engaged in or is engaging in acts of genocide.
South Africa has indicated that they may take the US and UK to court too. Why?
This would be a fairly novel interpretation of the Genocide Convention, but certainly academics and scholars argue that if hypothetically, State A is committing an act of genocide and State B is assisting State A in committing that act of genocide through the provision of arms, well then State B also is culpable for acts of genocide. The type of argument in terms of the flow of arms and aid and assistance to Israel is the type of argument that could be developed by a state like South Africa saying, ‘Well, the United States or any other state that is actively aiding and abetting and assisting Israel in committing alleged acts of genocide could also be held responsible under international law’.
If the US is brought before the ICJ, what implications could that have in terms of its standing in the international community?
I’d make two observations there and that is the United States has had a fairly chequered history in terms of the International Court of Justice. It has appeared in some cases before the ICJ voluntarily but in some very famous cases, they’ve not appeared before the court, and in some instances they’ve rejected outright the decisions of the court that are unfavourable to the United States. The Genocide Convention, though, is in a different category because the United States is a party to the Genocide Convention and it makes it very clear that any disputes arising under the Convention can be determined by the International Court, so that deals with an important technical issue called jurisdiction. If the United States were to refuse to engage in any legal proceedings that South Africa or any other state could bring against it under the Genocide Convention it would really cast into doubt the support of the United States for the international rules-based legal order.
Given that over 25,000 Palestinians have already been killed, what do you think it would take for the international community to officially condemn Israel’s actions as genocidal?
At the moment, in terms of the ICJ case, the international community is sort of waiting with bated breath to see how the court orders and I think that will really be a pivotal moment in how the matter resolves. Obviously, if the court makes any finding – even if it’s very moderate – that there’s a plausible argument that Israel has engaged the acts of genocide, I think that would see Israel and its supporters in the international community face very significant international pressure where Israel would be expected to radically modify its behaviour. That’s why the growing momentum for not just a humanitarian pause but what could possibly be a much more lengthy ceasefire [is interesting]. If a lengthy ceasefire was agreed to, that will go possibly quite some way to see Israel at least meet any initial legal obligations to not commit acts of genocide or alleged acts of genocide.
I think it’s unlikely that the International Court would in any way issue a ruling which says that Israel cannot exercise self-defence, and because Israel has used the right of self-defence as a main buffer to the South African genocide allegation I think most international lawyers would say, ‘Well, the right of self-defence is an inherent right of any state’. The court’s not going to deny that Israel can exercise a right of self-defence but the more important issue is how Israel is exercising that right of self-defence.
Israel’s Prime Minister Benjamin Netanyahu recently rejected the idea of a Palestinian state as compromising “Israeli security control”. Should the conflict come to an end, what will stop the violence from happening again?
I don’t think I’m really properly qualified to answer that question. [But] there seems to be a growing international consensus from some of the major players, and the United States is really pivotal, that a two-state solution is the only way forward for the medium to long-term security future of both Israelis and Palestinians. So I find that very encouraging. But obviously, there’s lots of political issues associated with that. We know Israel has been very robust in not accepting the legitimacy of any arguments being put forward that there could be a Palestinian state, but I think the international community is gradually moving towards a position … that a Palestinian state could be created, but it would be a completely demilitarised state. So that raises issues of who will provide security for a demilitarised Palestinian state.
Indonesia and Slovenia have supported hearings on Israel’s occupation of Palestine. Mexico and Chile have supported ICC investigations into war crimes by Israel. How does the processing of these claims differ from South Africa’s case before the ICJ?
They’re radically different processes. So the International Criminal Court, which also exists in The Hague, and operates under what’s called the Rome Statute, has the ability to prosecute individuals and not states. The prosecutor of the International Criminal Court Karim Khan has opened an investigation into the situation in both Israel and Gaza. ICC prosecutors are currently investigating the events of October 7, 2023 but they’re also seeking to investigate the conduct of the IDF in Gaza.
There exists a range of difficult jurisdictional issues here. Some of those can be circumvented if there’s a referral of the situation in Gaza, in particular, to the ICC prosecutor. That’s why the Indonesian, Mexican, and Chilean initiative is important. Let me give you a parallel example. The ICC prosecutor received multiple referrals with respect to Russia’s conduct in Ukraine arising from Russian aggression commencing in 2022 and that allowed the ICC prosecutor to circumvent jurisdictional limitations [ultimately leading to Vladimir Putin’s arrest warrant]. It allows the ICC prosecutor to possibly investigate crimes of genocide, war crimes, crimes against humanity as might be perpetrated by Israelis and that would extend all the way from Netanyahu, down to ordinary soldiers on the streets of Gaza.
Is Indonesia banned from bringing charges of genocide if they’ve been accused of committing genocide themselves?
No. The fact that one state has been accused of having committed acts of genocide is not a bar to that state legally seeking to make a referral.
From an international law perspective what you’ve just put to me is, in fact, a clear trend. States in the Global South have increasingly over the last decade and particularly over the last few years, began to explore legal options available to them before international courts and tribunals to not only challenge established powers in the Global North but also to seek to have tested critical legal arguments that the Global North have rejected. [For example], Gambia commenced proceedings in the International Court of Justice against Myanmar with respect to allegations of genocide.
[Another] prominent example is that at the moment we have two cases, one in the National Court of Justice and one in the International Tribunal for the Law of the Sea, advanced and promoted principally by small island “developing” states that all relate to climate change and sea level rise. Those two cases are what are called advisory opinions. So they’re not a case of state A versus state B, but they’re small island states, [mostly] in the South Pacific and in the Caribbean, seeking to utilise these very formal legal processes to actually get some clarification on legal principles which the Global North would ultimately be subject to. The general point I’m trying to make is that we’re seeing more examples of states in the Global South utilising these international legal mechanisms, and that’s quite a significant trend.
What role do you think social media plays in South Africa’s case?
We need to be very mindful that South Africa brought this case forward on December 29, 2023, and two weeks later they were appearing before the International Court of Justice. Now for that case to be conclusively determined by the court it will require voluminous evidence. If this case proceeds to a final determination, we could be looking at four or five years for the case to work its way through. This case is unique because of the very short period of time South Africa had to present its basic argument before the court. They were able to rely upon social media because traditional media as we know has had very limited and very constrained access in Gaza.
I found that personally quite fascinating — how the South African legal team relied upon social media and uploaded very poignant video clips. CNN or the BBC didn’t have journalists on the ground so it was a very unique and very special situation. We know that Israel has placed very significant constraints on the way journalists can move in Gaza generally and indeed the way in which anyone can move in Gaza. All that contributes to the very distinct and unique role that social media has played here. We’ll probably see South Africa using a very different sort of standard evidentiary test so what I will be interested to see is what the International Court says in its provisional measures about the use of this evidence that South Africa has relied upon.
How has social media been used by Palestinians to document Israel’s actions?
I must admit I cannot think of an equivalent situation. Obviously, social media has been very important in the context of Ukraine and Russia but that’s a different type of conflict. The genocide case we had between Gambia and Myanmar is totally different because social media wasn’t exceptionally prominent. We, of course, have some other situations around the world where genocide has been alleged but where social media is severely constrained and the UN hasn’t been prominent in seeking to alert the international community to potential acts of genocide. That’s why the situation in Palestine is really quite unique and very distinctive and perhaps will probably be the first time that the international court will make some reference to the role of social media in South Africa seeking to advance, at a very preliminary stage, its case for an act of genocide. It may well be a portent of the way in which social media might be able to be significant in future cases involving widespread human rights abuses, crimes against humanity, and the like.
The significant role social media played in terms of alerting the world to the events of October 7 also needs to be acknowledged — and the way in which the world has gained an understanding of what occurred. Its role throughout this whole conflict has been quite significant.
Editor’s note: Interview edited for length and clarity.