Breaking Down Israel's Defense At The ICJ
Does Israel's defense against South Africa's charge of genocide stand a chance?
One of the things that characterize debate and argument over Palestine and Israel is the absolute certainty each side presents its points with, and the absolute belief in the justice and rightness of their cause. Facts have a disturbing tendency to muck up the waters of such certainty, and, while reality is a far bigger obstacle for the Israeli/Zionist narrative than it is for the Palestinians’, the imbalance of political power and positioning (at least in the U.S. and Europe, where the accepted truth in the mainstream leans heavily on faith in the Israeli side) means that any factual or contextual misstep by Palestinians and their supporters is treated much more harshly than similar, or even much greater, mistakes on the pro-Israeli side.
With that in mind, it’s important to take a sober approach to the case of genocide that South Africa has brought before the International Court of Justice (ICJ). More specifically, it’s important to understand what Israel’s defense is, especially if we want to get some sense of whether that defense will be successful. To do that, we have to think about the case as objectively as possible—something particularly difficult given the circumstances of Israel’s ongoing slaughter in Gaza.
I’ll break down the framing of the case, both the legal and political approaches, and the specific claims Israel is making. If you want to see a summary of South Africa’s case, you can find a short one here or a longer and more detailed one here. South Africa’s full submission can be found here.
Brief disclaimer
I am not a lawyer, and I don’t claim to be. The idea of this exercise is to present an analysis of the ICJ case from both a legal and political point of view. My experience working in the human rights field has given me some substantial, albeit layman’s, knowledge and understanding of these issues. My considerably greater experience as a political analyst for over two decades and spending that time specifically learning and observing issues around Palestine and Israel are what I bring to bear here. There are legal issues that could be raised here and I suggest looking to the various international bodies and other legal experts, some of whom are mentioned or linked to in the article below.
The questions before the ICJ
To begin, we need to keep in mind the context of what is and is not before the ICJ, and what may be decided quickly and what may take considerably more time.
The specific charge before the ICJ is that of genocide, along with charges of incitement to genocide and failure to act against both. What binds these charges together is that they are all actionable under the Convention on the Prevention and Punishment of the Crime of Genocide. It is, therefore, important to keep in mind that whether or not other war crimes were committed by Israel, or any other party is not the issue in this case. As we will see below, that point bears heavily on Israel’s defense.
It is also crucial to remember that genocide is an extraordinary charge and the threshold for conviction is concomitantly extraordinarily high. The legal definition of genocide is as follows:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
What makes genocide so difficult to prove is that the prosecution has to prove intent. As callous as it sounds, the fact of a high number of civilian casualties—though it may be a war crime of another type—does not, by itself, prove genocide. Indeed, the reverse is also true; if intent can be proved along with any of the qualifying acts listed above, there need not be a high number of casualties, only enough to satisfy at least one of the five conditions listed above. The crime of genocide is centered on the question of intent.
In this case, Israel has made it easier, because its radical leadership, in the boundless hubris the United States has nurtured in Israel, has made statements that imply genocidal intent. But here is one of the first places where we have to consider differing perceptions.
For those of us who support Palestinian rights, it is easy to see that the statements made by Israeli leaders including Benjamin Netanyahu, Yoav Gallant, Bezalel Smotrich, Isaac Herzog, Itamar Ben Gvir, Israel Katz, Amichai Eliyahu, Ghassan Alian, Giora Eiland, and others as communicating genocidal intent. But Israelis and their supporters who don’t believe genocide is afoot have heard these as heat of the moment comments or bombastic rhetoric. How the Court will interpret them is not a given.
There are also separate decisions for the ICJ to make, one more immediate, the other long term. In the near term, the Court must decide whether to grant South Africa’s request for what are called “provisional measures.” These are immediate orders that are issued pending a final decision by the Court, and they have a much lower threshold of proof attached to them.
Provisional measures—which are temporary remedies granted while the court proceedings continue—require only that the plaintiff establish a “plausible” case for the genocide accusation. The Court, for these requests, need only decide that there is a reasonable case to be made that South Africa has standing to bring the case; that the ICJ has jurisdiction; and that the case itself has sufficient merit based on whatever treaty of convention it is siting as the standard.
But it must be stressed that if the Court does find that the South African case meets this threshold of plausibility (as it almost certainly will), that only allows the Court discretion to grant the requested provisional measures. It does not require the court to do so. Nor does it mean that, later, when the Court is deliberating on the merits, it cannot decide that, as it turns out, the plaintiff did not have standing or the Court itself does not have jurisdiction.
Still, there is real reason to hope that the court will grant some or all of the provisional measures. Those measures that South Africa requested were:
· That Israel suspend immediately its military operations against Gaza;
· Ensure that its military leaders, politicians, and citizens refrain from public incitement to genocide;
· Hold anyone under their jurisdiction accountable if they do incite to genocide;
· “Take all measures within its power including rescinding of relevant orders … to prevent … the deprivation of access to adequate food and water;”
· Preserve evidence of possible genocide or other potential war crimes;
· Submit reports on what it’s done to comply with the provisional measures;
· And refrain from taking actions which might aggravate or extend the dispute before the Court.
Many of these measures seem likely to be granted. The big one, and the one whose fate is most questionable, is the first one, an order for Israel to stop all attacks on Gaza. It is nearly certain that even if it is granted, Israel will defy it, with the full support of the United States, and likely the U.K., Germany, and perhaps other European states as well.
That, in itself, may give the Court pause about granting it. Reluctance to demonstrate again that the ICJ is powerless to enforce its own rulings cannot help but influence their decisions. And it would be the second time in recent years that a powerful state simply defied such a ruling, after Russia did so in 2022 when it was ordered to pause its hostility against Ukraine.
Still, it is possible that the Court will force Israel to defy it, and this would not be without some gains for justice. Israel would be putting itself into the same basket as Russia, which will certainly not look good in the West. It will also reinforce the widespread view in the Global South of America’s hypocrisy regarding Ukraine and Gaza.
The other measures are more likely to be granted, and Israel is likely to agree, at least publicly, to abide by them, unless it simply defies them along with the order to cease its Gaza operations. It would actually be in Israel’s own interest to smother the genocidal comments from their leaders, something it seems is even starting to dawn on the Israeli government itself. And, while they certainly shouldn’t be trusted in their reporting or with evidence of potential war crimes regardless of what they say, they may at least put on some token show of obeying such an order from the ICJ.
Israel’s defense
Once the ICJ decides on the provisional measures, this case is likely to fade into the background for quite a while. Even if the Court presses forward deliberately on it, a decision is unlikely to come in less than a few months, and might take more than a year. In other words, there’s every likelihood that, by the time this decision is announced, Israel is likely to have ended its current actions in Gaza, one way or the other.
Still, it will matter, as I explained in a recent article I wrote for Mondoweiss on this question. The Israelis seem to agree. Israel generally does not cooperate with international investigations or legal proceedings. But this time, they immediately agreed to defend themselves in the Court and appointed former President of Israel’s High Court of Justice Aharon Barak as its representative on the ICJ tribunal. Barak is seen by many on the Israeli right as an enemy, the very picture of the sort of jurist who they were trying to thwart with their “judicial overhaul” plan last year. This is because he occasionally ruled against the government or military on issues related to the occupation. In reality, Barak and his court routinely supported the government’s positions, but the occasional contrary ruling was enough to enrage the right, even though it was actually a great way to establish a veneer of lawfulness and democracy over Israel’s apartheid practices.
So, what are Israel’s arguments, and could they be enough to answer South Africa’s charges?
1. Israel’s “right” to self-defense”
Israel’s defense rests on a few points, none more central than the idea that this case must focus only on events from October 7 onward. This is both a legal and political strategy. To justify its argument, there must be no context for Hamas’ undeniably illegal and certainly brutal attack on October 7.
That is key, in particular, to Israel’s first and primary argument: that it has the right to defend itself from outside attack. In Israel’s argument, this right does not absolve it from its obligations under international law (as Israel’s advocate, Tal Becker repeatedly noted), but is complicated by Hamas being intertwined with the civilian population of Gaza. This results in the high number of civilian casualties, according to Israel.
There are several problems with Israel’s argument here. The most fundamental of these problems is that Israel does not, in fact, have a right to defend itself against a people under its occupation. This point is going to be key in terms of the decision the Court eventually arrives at.
In order to accept Israel’s argument, the ICJ would have to accept Israel’s contention that the 2005 withdrawal of its military forces and settlements from Gaza means the area was no longer under Israeli occupation. Israel claimed at the time, and has maintained since, that it was no longer bound by the laws of belligerent occupation in Gaza because it was not physically inside of Gaza.
In 2007, Israel declared Gaza a “hostile territory,” a designation it specifically pointed out was a “factual” declaration, not a legal one. That was because they did not want to raise the legal question of Gaza’s status, fearing they might lose that argument, but did want to expand their ability to target Gaza. Israel’s Ministry of Foreign Affairs stated that “While Israel remains committed to averting any humanitarian crisis, it does not feel required to provide any supplies which go beyond that.” That statement, in itself, means Israel was abandoning its responsibilities as an occupying power in Gaza, which, under international humanitarian law, require that it ensure the security and well-being of the population under its control.
There are those in the international legal world that agree with this reading, but the decisive majority of legal opinion is that, because Israel maintained control over Gaza’s borders, its airspace, its electronic space, its water supply, and its coastline—effectively controlling everything and everyone that goes in and out of Gaza—it remained an occupying power. The ICJ decision could very well settle this question as a matter of international law, though, of course, the political argument will continue regardless of how it decides.
With the vast majority of international opinion agreeing that Israel was still the occupying power in Gaza after 2005, that means it does not have the right of self-defense, which applies only to attacks or threats from foreign states. This doesn’t mean that it cannot take steps to protect its citizens, primarily through policing, shielding, or political measures. But it does mean that it cannot mobilize the full might of its military against a people whose welfare it remains legally responsible for.
It bears repeating here that the wanton destruction in Gaza, and Israel’s evident abandonment of the basic principles of proportionality and distinction in its attacks on Gaza do not, in and of themselves, necessarily imply genocide. They are war crimes under international humanitarian law, and, if intent to genocide can be proven, they certainly can satisfy the active element of the charge of genocide. And to be sure, when we speak in political or colloquial terms, we might well look at this and say it is an effort at genocide. But legally, the death and destruction alone, no matter how vast they are and regardless of whether they are war crimes of other kinds, need not constitute genocide.
Israel’s argument of self-defense, however, will depend entirely on whether the Court accepts the idea that Gaza is no longer occupied. This seems highly unlikely, since the major international bodies such as the International Committee of the Red Cross (ICRC), the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, UN General Assembly (UNGA), European Union (EU), African Union (AU), International Criminal Court (ICC), Amnesty International, and Human Rights Watch all agree that Gaza has been under Israeli occupation since 1967 and remains so. Hopefully, the ICJ will specifically note this part of their ruling and, at least in the legal world, settle this question once and for all.
2. Blaming Hamas
Israel is also running out the argument that Hamas is deliberately using the civilian population to shield itself from Israeli attacks; that it is firing at Israeli forces and at Israel indiscriminately, hitting its own people, thus causing much of the death and injury itself; and that it is hoarding food, water, medical supplies, and other emergency and life-sustaining items and this explains the scarcity in Gaza, not Israeli actions.
Hamas members, like everyone in Gaza, have certainly been scrambling for food, water, and medical supplies. But Israel’s argument separates Hamas from the population, which is as absurd as it would be if one were to separate Israeli soldiers on Israeli territory and Israeli government officials from the Israeli population.
Hamas has been, since 2006, the governing power In Gaza, to the extent that there is any true governmental authority under Israel’s occupation and siege of Palestinian territory. It is, therefore, naturally part of Palestinian society. Indeed, while many Palestinians would oppose Hamas’ policies and ideology, one is hard pressed to find any who would disagree with the idea that Hamas is an integral part of the Palestinian people and society. As Israel has declared that it will not allow humanitarian aid to reach Hamas forces, they must either try to find food and water where they can or die. That they choose the former hardly excuses any of Israel’s behavior.
That said, there is no evidence, aside from Israel’s unsubstantiated claims, that Hamas members getting their hands on some of the meager aid that is being allowed in is any factor in the scarcity of food, water, medicine, and humanitarian supplies in Gaza. There is, however, considerable evidence that Israel’s actions account for the full scope of this crisis.
Israel has repeatedly tried to show that Hamas uses UN schools, hospitals, mosques and other public buildings for military purposes, but the evidence supporting this is also scant, and often even manufactured. More to the point, even if Israel’s accusations had some foundation, this would not mean that it is open season on civilians, civilian sites, or public gathering spaces. And, even more than that, it is another matter for international humanitarian law. It is not an argument against the charge of genocide. The destruction of the civilian infrastructure and health system in Gaza, however, supports an accusation of genocide.
3. Genocidal intentions and actions
Israel argued that the South African accusations of genocidal intent were based on “random quotes.” As I’ve already noted, some of those quotes came from Benjamin Netanyahu and Defense Minister Yoav Gallant themselves. Becker argued that quotes were cherry-picked and came from ministers who were not connected to policymaking on the war. This is plainly a false assertion.
Becker also argued that the alleged genocidal actions were a combination of the foibles of war, cast in an intentionally unfair light by South Africa, and some possible transgressions by individual soldiers that “Israel’s robust legal system” would address. Yet, even aside from the fact that Israel’s legal system has proven unwilling and unable to prosecute its soldiers for serious crimes, we have seen many recent examples that fall far outside this characterization.
We’ve seen Israel launch attacks on ostensible “safe zones” as well as on roads to parts of Gaza which Palestinians were directed to by Israel itself. We’ve seen a mother waving a white flag gunned down in front of her child. We’ve seen a church bombed after its precise coordinates were communicated to Israel by U.S. congressional staffers so they could avoid hitting it. And, of course, we’ve seen Israeli soldiers gun down three Israeli hostages who had gotten away from their captors, stripped off their shirts, and waved white flags so they wouldn’t be slaughtered by their own soldiers. Yet they were.
Could there be explanations for all of these incidents? It’s highly improbable, but not outside the realm of possibility. But they certainly amount to a credible case for investigation. They are certainly plausible, prima facie evidence supporting a case of genocide. And they are certainly not “random assertions.”
4. Lack of jurisdiction and humanitarian aid
Israel has argued, as one might expect, that South Africa did not try to work out their “dispute” with Israel before going to the Court. Procedurally, this is expected, even though in a case like this, it would surely have been a mere formality. Yet, ironically, this is probably Israel’s strongest point.
At least to date, South Africa has not clarified what it communicated to Israel before filing the ICJ submission. On a common sense level, Israel’s argument is absurd. South Africa stated in November that they believed a genocide was taking place and even called on the International Criminal Court to issue an arrest warrant for Netanyahu. Israel subsequently recalled its ambassador. South Africa’s parliament voted to suspend ties with Israel and close its embassy in Pretoria.
Whether and with how much effort the South African government tried to reach out to Israel, despite its ambassador having been withdrawn, before going to the ICJ is unclear. It’s a technicality, to be sure, but it’s probably the best chance Israel has.
Israel has also contended that the delivery of humanitarian aid since the start of its assault shows there is no genocidal intent. This is a particularly weak argument, on many levels.
First, the meager amount of humanitarian aid that has entered Gaza over the past three months barely impacts the situation there. Before October 7, some 500 trucks per day entered Gaza with food and various humanitarian supplies. Aside from the brief pause, when about 200 trucks per day went in, less than 100 trucks a day have been allowed into Gaza during the war, when the need is obviously many times greater than it was before.
Moreover, even with the trucks going in, the ability of humanitarian workers to deliver aid to those who need it has been crippled by fighting, destruction of roads and other infrastructure, and Israeli interference. Israel claims that Hamas is taking the aid, but aside from their unsubstantiated claims there is no evidence that this is a significant factor.
The fact that Israel allows a meager amount of aid into Gaza—a result of immense political pressure that even the United States has contributed to—does not impact the charge of genocide. Again, that charge does not depend on a number of people killed, and it does not require an attempt to kill every member of a particular group. That is not its definition.
What will the ICJ decide?
Predictions are never easy, especially when we are talking about the international legal system confronting real power. It does not have a great record in that regard.
Proving a charge of genocide means reaching an extremely high bar, and that was intentional. It’s as big a crime as there can be.
The ICJ has reason to proceed carefully here. But if it doesn’t make a clear ruling based on a solid foundation of legality, there is every reason to believe that could constitute a fatal blow to what little remains of the world’s faith in the international system.
I expect the rulings in this case to go against Israel. I believe it likely the Court will grant South Africa the provisional measures it requested, including an order that Israel cease its operations in Gaza. I also expect Israel to defy that order, and the United States to back its ally in its defiance.
Farther down the road, I think the final verdict on this case will depend in great measure on what happens between now and then. Will Israel be allowed to complete the destruction of Gaza? Will the dire predictions of widespread death from hunger, malnutrition, treatable disease, and exposure in Gaza materialize in all their horror? Will Israel continue to escalate its operations in the West Bank?
All of these could affect the decision of the Court, whether they actually impact the legal deliberations or not. But it seems clear that, on the merits, Israel’s defense is decidedly weak, and often specious. It ignores international law where it must, and plays on technicalities where it can. That may give the ICJ a way out, but if they take it, they may as well close up shop entirely and make room at the Hague for something else.
None of this, tragically, seems likely to help the people of Gaza. For this, we will still need to be active, pressing, shouting, and rallying, trying to pressure our own heartless leaders to put an end to this slaughter. But if the Court rules as I believe it should, it will help a great deal in the broader struggle to end Israel’s violent oppression of the Palestinian people and hasten the day when Palestinians can live in their homeland with the same rights that all of us have come to expect.
Recent Articles
South Africa’s ICJ case could be a game changer
https://mondoweiss.net/2024/01/south-africas-icj-case-could-be-a-game-changer/
My piece at Mondoweiss about the potential impact of the ICJ case, a rare example of optimism
Antisemitism and Islamophobia In The US Political Discourse On Israel/Palestine
Sahar Aziz and I had a great, in-depth discussion with Khaled Elgindy of the Middle East Institute about our report, Presumptively Antisemitic: Islamophobic Tropes in the Palestine–Israel Discourse.
Also, follow me on Twitter @MJPlitnick; at Facebook https://www.facebook.com/MitchellPlitnick; on Bluesky @mjplitnick.bsky.social; Threads @mjplitnick; or Mastodon @MitchellPlitnick@journa.host for my latest hot takes, comments, and news updates.