ISRAEL AT WAR - DAY 142

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‘We should be worried’: Israel faces peril at The Hague in Gaza ‘genocide’ case

The bar for ‘plausibility’ in the initial proceedings is quite low, experts warn, while ministers’ inflammatory statements enabled South Africa to allege Israel has genocidal intent

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

A general view of a session of the International Court of Justice in The Hague, on October 1, 2018.  (Bas  ZERWINSKI/ANP/AFP)
A general view of a session of the International Court of Justice in The Hague, on October 1, 2018. (Bas ZERWINSKI/ANP/AFP)

Israel, on Thursday, will for the first time in its history find itself in the dock in the International Court of Justice in The Hague — charged with genocide.

Although the idea that Israel is committing genocide in the war in Gaza, meaning intentionally murdering Palestinian civilians, might seem outlandish to some, the allegations are extremely serious and even an interim ruling against Israel could have a severe impact on its international status and global reputation, with potentially dire diplomatic and political consequences.

A ruling against Israel could even affect the ongoing conduct of the war against the Hamas terror group’s regime in Gaza.

The application to the ICJ against Israel by South Africa alleges that Israel has violated the Genocide Convention, to which it is a signatory. It cites the large number of Palestinian civilians killed during the war, and the severely reduced access to food, water, and medical care of the Gazan population, which South Africa alleges are the result of a planned Israeli effort to commit genocide against the Palestinians in Gaza.

Critically, the numerous inflammatory statements made by Israel government ministers about Palestinians in Gaza have given South Africa a platform to allege that the State of Israel has the intent to commit genocide, a crucial aspect of any genocide charges.

Although a final ruling will likely take years, South Africa has requested the court issue provisional orders against Israel that could range from demanding a total and immediate ceasefire — which Israel and the US firmly oppose because Hamas has yet to dismantled — to more moderate orders such as insisting that more humanitarian aid be allowed in.

A fireball erupts during Israeli bombardment in the northern Gaza Strip on October 14, 2023. (Photo by Aris MESSINIS / AFP)

But it would be the interim ruling itself, that there is even plausibility to South Africa’s allegations, that would be the most damaging to Israel’s standing.

Critically for Israel, the bar to establish plausibility of genocidal actions is much lower than a final definitive determination, and this puts the Jewish state in significant potential peril. For a start, it would certainly be more challenging for the US, or any other country inclined to stand with Israel, to do so if the ICJ determines the country might be committing genocide.

The case before the court

What has led to this unprecedented and worrying moment in Israel’s history?

On October 7, thousand of Hamas-led terrorists burst across the border into Israel from Gaza and killed some 1,200 people, the large majority of whom were civilians, while also committing severe atrocities including mass rape, torture, and other crimes.

Israeli soldiers walk near the bodies of Israeli civilians killed by terrorists from Gaza in the southern city of Sderot on October 7, 2023. (Oren ZIV / AFP)

They took hostage some 240 people, of whom 132 remain in captivity, although not all of them alive.

Israel subsequently declared war on Gaza with the goal of eliminating Hamas and its capability to threaten Israel’s security, and releasing the hostages. In this campaign, the Israel Defense Forces faces a situation in which Hamas has placed its fighters and constructed its military installations throughout Gaza’s civilian infrastructure, including hospitals, schools, mosques and homes.

Composite of hostages held in Gaza by Hamas after the invasion of 3,000 terrorists into Israel on October 7, 2023, in which 1,200 people were slaughtered and some 240 taken captive. (Courtesy the Kidnapped From Israel campaign website/ Dede Bandaid, Nitzan Mintz & Tal Huber. Designed by Shira Gershoni & Yotam Kellner)

The Hamas-run health ministry in Gaza says over 23,000 people have been killed in the fighting, though these figures cannot be independently verified, and are believed to include both civilians and combatants, some as a consequence of terror groups’ own rocket misfires. The IDF says it has killed over 8,500 Hamas fighters in Gaza, in addition to some 1,000 terrorists inside Israel on October 7.

South Africa’s application to the ICJ alleges that Israel has violated several articles of the Convention on the Prevention and Punishment of the Crime of Genocide — to which Israel is signatory — during the war, including committing genocide, incitement to genocide, attempted genocide and failure to punish incitement to genocide.

It alleges that 70 percent of Gazan casualties are women and children, and details the heavy aerial bombardment of Gaza conducted by the Israeli Air Force and its use of large and sometimes unguided bombs.

A woman mourns over the bodies of family members killed during Israeli strikes, at al-Najjar hospital in Rafah on the southern Gaza Strip on December 7, 2023 (SAID KHATIB / AFP)

It also points to “reports of unarmed people… being shot dead on sight,” noting the incident in December in which three Israeli hostages who managed to escape their captors were mistakenly shot dead by IDF forces even though they were waving white flags.

The document also details Gazans’ reduced access to food, water, and medical treatment as a result of the war and Israeli policies regarding the entry of such items, and fuel, into the Gaza Strip.

And it lays out what it sees as highly problematic comments by Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, Finance Minister Bezalel Smotrich, National Security Minister Itamar Ben Gvir, all of whom are members of the critical security cabinet which makes policy decisions on the prosecution of the war. The application alleges that these comments either dehumanized Palestinians, threatened indiscriminate attacks on Gaza or could be understood as threatening Gazan civilians.

“The acts and omissions by Israel complained of by South Africa are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group,” the application charges.

In the entirety of its 84 pages, South Africa’s application makes no mention of Hamas’s documented practice of embedding its military installations and combatants in all aspects of Gaza’s civilian infrastructure, including hospitals, mosques, schools, homes, UN facilities and other similar sites, even when mentioning Israeli attacks on such infrastructure.

IDF Spokesman Daniel Hagari stands next to what he says are weapons left behind by Hamas inside Al-Shifa hospital complex in Gaza City, on November 22, 2023. (Photo by Ahikam SERI / AFP)

Hamas’s massive network of tunnels, much of which is located under civilian locations and which is used exclusively for military purposes, is mentioned once — and then only to raise concerns over the ecological impact of flooding such tunnels, which Israel has carried out.

The legal team representing Israel is not speaking to the press, and the Justice Ministry and other relevant Israeli agencies have remained tight-lipped about what line the defense will take.

But it seems likely that the principal legal representative for Israel in the ICJ courtroom in The Hague, British attorney Malcom Shaw, will argue that the civilian casualties are the unintentional result of Israel’s war aim of destroying Hamas and of the fact that the terror group has so deeply entrenched its military facilities and fighters among the civilian population and infrastructure of Gaza.

Weapons found inside a mosque in Gaza City’s Zeitoun neighborhood by IDF troops, in a handout image published November 20, 2023. (Israel Defense Forces)

The defense will also probably point to the millions of leaflets the IDF dropped on the areas of Gaza it targeted, and the tens of thousands of phone calls and text messages it has made, telling civilians to evacuate.

These measures were taken in order to comply with the requirement under the Laws of Armed Conflict to adequately warn civilians in a combat zone of the impending danger to their lives.

And it will likely be argued that the comments made by Israeli security cabinet ministers were either taken out of context, not directed not at the Palestinian civilian population but at Hamas leaders and fighters, or not reflected in the IDF’s conduct.

National legal peril

So what is the likelihood the ICJ will rule against Israel?

Crucially, the initial proceedings that will take place on Thursday and Friday will deal with South Africa’s request for the court to order provisional measures against Israel on the basis of its genocide charges.

Making a determination of this kind requires not a decisive ruling that Israel is guilty of genocide but rather that the claims be considered “plausible,” said Prof. Eliav Lieblich of the Faculty of Law at Tel Aviv University.

“It’s a low evidentiary threshold; you just have to show prima facie that what you’re saying is plausible,” explained Lieblich.

The South African request for provisional measures therefore revolves to a large extent around the comments of politicians, as well as various videos filmed by IDF soldiers in Gaza in which they make inflammatory comments about Palestinians, said Lieblich.

People search for survivors and for bodies of victims through the rubble of buildings destroyed during Israeli airstrikes, in Khan Younis in the southern Gaza Strip, October 26, 2023, amid the ongoing war between Israel and Palestinian terror group Hamas. (Mahmud Hams/AFP)

Among some of the most incendiary comments made by senior Israeli politicians are remarks by Netanyahu on October 28 in which he referenced the biblical enemy of the ancient Israelites, saying, “You must remember what Amalek has done to you, says our Holy Bible. And we do remember.” The South African application cited this comment, as well as the biblical verse in Samuel I commanding the Israelites to kill all men, women and children of Amalek.

In the same speech, however, Netanyahu insisted that “the IDF does everything to avoid harming noncombatants” and said he was “calling on the civilian population to evacuate” to safe areas in Gaza.

The South Africa application also noted Netanyahu’s description of the war in another speech as one between “the children of light and the children of darkness,” which it described as “dehumanizing.”

The application also referenced Gallant’s comment that Israel is “fighting human animals” and would “act accordingly,” as well as a remark by Smotrich when he said “we need to deal a blow that hasn’t been seen in 50 years and take down Gaza.”

It further referenced a statement by Ben Gvir: “When we say that Hamas should be destroyed, it also means those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should also be destroyed.”

And it cited an infamous suggestion by Heritage Minister Amichai Eliyahu that Israel was considering using a nuclear bomb in Gaza, and his comment that “there is no such thing as uninvolved civilians in Gaza.”

Lieblich describes these various comments as “reckless” and “irresponsible” remarks that should never have been made and that have now landed Israel in a great deal of trouble because of the requirement to prove intent in the genocide charges.

“If these comments wouldn’t have been said, then there would have been no intent basis for the case,” he said.

Head of the Otzma Yehudit party, National Security Minister Itamar Ben Gvir, leads a faction meeting at the Knesset in Jerusalem on January 1, 2024 (Yonatan Sindel/Flash90)

The professor said that Israel’s legal defense would be engaged in “an uphill struggle” in which it would have to convince the court that the prime minister and other cabinet ministers did not mean what they said and that their words do not reflect what has actually happened on the ground in Gaza.

In the case of ministers like Eliyahu, as well as some members of the army and Knesset members who have also made inflammatory comments, the defense team will likely point to the fact that they are not members of the security cabinet and therefore have no control over Israel’s war policies, and that their comments are therefore immaterial to the genocide charges.

The steps taken by the IDF to avoid civilian casualties, including training by experts in international law and oversight of IDF operations by legal officials in the IDF, as well as the warnings to evacuate, will also likely be cited in the defense.

A fair trial?

A crucial component of the ICJ proceedings is whether Israel can receive a fair hearing.

The 15 permanent judges who serve on the court are appointed by the United Nations General Assembly, and come from countries with greatly differing levels of judicial independence.

The president of the court is Judge Joan Donoghue from the United States, and other judges come from democratic countries such as France, Germany, Australia, India, Slovakia, Jamaica, Japan and Brazil.

Both South Africa and Israel are sending judges they have nominated as ad hoc members of the panel hearing the case. Israel’s judge will be former Supreme Court president Aharon Barak.

But other judges come from Russia, China, Morocco, Somalia, Lebanon and Uganda, which are all either autocracies or very flawed democracies where judicial independence from those countries’ political leadership is dubious, to say the least, said Prof. Robbie Sabel of the Faculty of Law at the Hebrew University.

Presiding judge Joan Donoghue, center, and other judges enter the World Court in The Hague, Netherlands, June 6, 2023, as four days of hearings open in a case brought by Ukraine against Russia at the UN’s top court alleging that Russia breached treaties on terrorist financing and racial discrimination in eastern Ukraine and Crimea. (AP Photo/Peter Dejong)

“If it [the ICJ proceedings] was strictly legal, then it wouldn’t be possible to say this is genocide,” said Sabel.

“But since there is a bloc of anti-Israel judges, we should be worried,” he continued, arguing that the selection of judges in the UN General Assembly is political and pointing out that no Israeli judge has ever been elected to the court.

Sabel contended that if Israel wanted to commit genocide against Gazans it could have caused far greater civilian casualties given the power of the army, and that combined with the IDF’s efforts to avoid such casualties and the humanitarian aid Israel has allowed into the territory, “an impartial court” could not determine that it was plausible that Israel was committing genocide.

Prof. Amichai Cohen, an expert in the international law of armed conflict at the Israel Democracy Institute, agreed that it was troublesome that some of the judges come from countries with a subpar level of judicial independence.

But he noted that China and Russia, despite not being well disposed to Israel diplomatically, are likely to be cautious about genocide proceedings in the ICJ given that they have themselves been accused of genocidal acts in recent years.

There is currently a pending case against Russia in the ICJ on genocide charges for its actions during its invasion and occupation of parts of Ukraine, while China has faced allegations, albeit not in the ICJ yet, that it has committed acts of genocide against its Uighur Muslim minority.

“The majority of justices do not necessarily represent the interests of their states, but rather international law… and this is why Israel is cooperating with the court,” said Cohen.

In terms of the charges themselves, Cohen said that because Israel’s actions, and their consequences, in Gaza can be explained in a way other than intending to commit genocide — that is, attempting to neutralize Hamas’s military threat — it may be possible to convince the court that the allegations are wrong.

A convoy of trucks carrying humanitarian aid enters the Gaza Strip from Egypt via the Rafah border crossing on October 21, 2023. (Eyad Baba/AFP)

“The claim does not have a lot of substance; Israel is not anywhere near committing genocide,” Cohen said.

He concurred with Lieblich, however, in that the comments by senior Israeli cabinet ministers had made it much easier for South Africa to bring its case to the ICJ, and likewise described those who made such remarks as “completely irresponsible” and said they had caused Israel significant harm.

The professor also noted that even if the court does not find that there is plausibility to South Africa’s charge of committing genocide, it could find Israel guilty of incitement to genocide and failing to punish such incitement, both of which are violations of the Genocide Convention.

Cohen said that he thought it “improbable” that the court would order Israel to halt its combat operations and said the issue of incitement might be the focus of any provisional measures the court might order.

The potential legal, diplomatic and political fallout

Should the ICJ find that there is plausibility to South Africa’s allegations of genocide, it could theoretically order a series of measures against Israel, including a halt to combat operations, an increase of humanitarian aid and the supply of fuel into Gaza, and action against those deemed to be inciting genocide.

There are no enforcement measures at the court’s disposal, but should Israel refuse to comply with court orders, the case could be referred to the UN Security Council, which is empowered to impose sanctions of various kinds.

These could include trade sanctions, an arms embargo, or other punitive actions.

Hebrew University’s Sabel contended that the US, a permanent member of the Security Council, would be highly likely to veto such sanctions. Visiting US Secretary of State Antony Blinken said in Tel Aviv on Tuesday that the charge of genocide brought by South Africa in the ICJ is “meritless,” and called it “particularly galling” because “Hamas, Hezbollah, the Houthis and their supporter Iran continue to openly call for the annihilation of Israel and the mass murder of Jews.”

The UN Security Council meets about the situation in the Middle East, including the Palestinian question, at UN headquarters in New York on December 22, 2023. (Charly Ttriballeau/AFP)

He pointed out that there are no criminal implications of an ICJ ruling since the ICJ is not a criminal court. The primary impact of a decision against Israel, he said, would be to its international standing.

“It would be a stain on our reputation; it won’t add to our diplomatic health,” he said wryly.

Lieblich made similar comments, saying that a ruling that Israel was “plausibly” committing genocide would be “a very grave result” with serious political implications.

And the professor was less sanguine about the reaction of the US to such a ruling, noting that US President Joe Biden would be put in a difficult spot because of the progressive wing of his Democratic party.

Severe objections could be made within his party to ongoing US arms sales to Israel and the diplomatic support the Biden administration has given to Israel, as well as the political cover it has provided in the Security Council.

“This is a big story,” said Lieblich. “People should have to answer why no one anticipated this [case], and how come [some in] government acted in such an irresponsible and reckless way.”

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