Don’t Get Upset: ICJ Decision Not That Bad

On January 26th the International Court of Justice (ICJ) indicated provisional measures against Israel designed to protect Gaza Palestinians against possible genocide. It of course bitterly stings many of us for Israel to be accused of genocide, let alone be deemed potentially responsible for such a crime. But if we examine the ICJ ruling in its legal context we see that it is not so damning at all.

South Africa accused Israel of violating an international convention against genocide, which defines the crime as attempting to destroy a national or ethnic group ‘in whole or in part’ by killing, causing bodily or mental harm, inflicting conditions of life calculated to destroy the group in whole or in part, and more. This means a military campaign can easily meet the requirements for genocide, without concentration camps or anything of that sort.

The key question before the court was whether Israel’s military actions in Gaza are being carried out with the intent of genocide, or whether whatever death and destruction Israel’s military is causing is merely an unfortunate byproduct of Israel’s legitimate attempt to defend itself from Hamas.

Not About War Crimes

It’s critical to note that even if one believes that some of Israel’s military actions targeted civilians deliberately or used disproportionate force, these would be war crimes, not genocide. Illegally causing civilian harm is a war crime as long as the motive is negligence, personal vindictiveness of the officers in charge, and so forth. Genocide requires that the reason behind the actions be a systemic desire to destroy the Palestinian population. Whether Israel is guilty of war crimes is not the topic here, as ICJ jurisdiction in this case extends only to genocide.

Low Burden of Proof

A second bit of legal background is that what happened this last month was a preliminary hearing. That means the burden of proof upon South Africa was much lower than it will be when the court gets around to deciding the merits of the case. South Africa did not have to prove that its allegations that Israel was committing genocide were true. It merely had to show that at least one of its allegations was plausible, and plausibility is a much lower standard.

The Decision

So here’s what the court decided. Tens of thousands of Palestinians have been killed, hundreds of thousands have been forced to flee their homes, and there has been widespread destruction of property. That clearly meets the threshold of causing harm to a significant portion of the population. The dispute is that South Africa says Israel is using this war as a pretext to cause this widespread harm, while Israel claims it is doing what it can to mitigate civilian harm and its only military purpose is to defend itself against Hamas and free its hostages.

Is South Africa’s claim at least plausible? Numerous UN officials and aid organizations say yes. They have spoken out about the vast extent of the destruction of Gaza, implying that the scale of Israel’s military operation is beyond that which would be reasonably required for defense. Also, there are statements by Israeli leaders that seem to indicate a desire to commit genocide. For example, the ICJ decision prominently quotes an October 9th statement by Israeli Defense Minister Yoav Gallant saying, ‘I have released all restraints. . . we are fighting human animals. . . Gaza won’t return to what it was before. . . we will eliminate everything.’

So the court found that in light of the sweeping, widespread nature of Israel’s military campaign, warnings by UN officials, the vulnerability of the Palestinian civilian population, and statements by Israel’s own leaders, that there is at least a plausible concern that genocide could take place. One judge (Nolte of Germany) wrote in his separate declaration that Israel’s efforts to warn and spare civilians, along with its provision of humanitarian aid, convinces him that Israel’s current military operations are not for the purpose of genocide. The only reason he voted in favor of the decision was the inflammatory statements by Israel’s leaders.

Final Determination May Be Different

It’s critical to remember that this decision is far from a conclusion that genocide is actually happening, and it is possible (or even likely) that when the court finally evaluates the case on its merits it may find that no genocide actually took place. The court may well determine (as Israel argues), that the objectionable statements by its leaders were never official policy, the precautions its military takes and the allowance of humanitarian aid make clear it does not intend to destroy the population, and that Hamas purposefully hiding its military assets and the hostages among the civilian population justifies and explains the broad scope of military operations. All the court said now is that it may potentially reach a different conclusion about what has already taken place, and there is a danger of the situation deteriorating in the future.

What the Court Ordered

As for what the court ordered Israel to do, it by and large rejected South Africa’s requests. Most importantly, South Africa wanted the court to order Israel to stop its military operations, which would have directly conflicted with Israel’s right to self-defense. Without explanation, the court simply noted that it has the authority to order whatever measures it decides and set aside South Africa’s requests.

The measures the court did impose are mostly just requirements that Israel follow the genocide convention and make sure to punish incitement. In the court’s view, since there is concern about potential genocide it is sensible to reiterate Israel’s obligation to prevent it. That’s it. In fact, Judge Sebutinde of Uganda wrote in her dissenting opinion that one reason she opposes the court’s provisional measures is simply that they are redundant to Israel’s current obligations under the genocide convention and therefore it makes no sense for them to be also ordered by the court.

One wishes Israeli leaders would have the wisdom to simply accept this decision and announce they will comply with it rather than attack the court. After all, Israel ought to have no problem with this. If Israel is not committing genocide and does not intend to, what is the problem with being ordered not to do it? The court also told Israel that it must allow more humanitarian aid, but that’s something it also already says it will do. The real reason Israeli political leaders are upset, I believe, is due to the emotional sting of being told that Israel may plausibly be associated with genocide. And those leaders shoulder a lot of the blame themselves due to the ugly and irresponsible things many of them have said.

Hamas and the Hostages

It also does not seem fair that the court is making demands of Israel only, without addressing the obvious, ongoing crimes of Hamas. This is due to the unfortunate reality that Hamas is not a state subject to the court’s jurisdiction. At least the court does add a paragraph at the very end of its opinion saying that it is gravely concerned about the fate of Israel’s hostages being held by Hamas and calling for their immediate and unconditional release.

Judge Sebutinde in her dissent notes that the obligation to prevent genocide is incumbent on all states, including South Africa. She writes that certain organs of South Africa’s government seem to have cordial relations with Hamas. Therefore, she says that South Africa should use those contacts to help secure the hostages’ release, as that would help defuse the current situation and lessen the concerns that led South Africa to petition the court. Let’s hope that South Africa’s purpose is not just to act politically against Israel, but also to help bring peace and security to both Israel and the Palestinians. If so, South Africa should heed Judge Sebutinde’s advice.

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