By Amanda Taub

LONDON — Depending on the angle from which you view it, the genocide case against Israel at the International Court of Justice (ICJ) can embody either the promises or the failures of one of the primary aims of the international human rights project: making rights a matter of law, not just of power.

Last week, the court, which is the United Nations’ top judicial body, heard initial arguments in the case brought by South Africa in late December, which accuses Israel of “acts and omissions” that are “genocidal in character” against Palestinians in the Gaza Strip.

This is only the fourth time that a country has brought a genocide case before the ICJ. The first was in 1993, 44 years after the Genocide Convention was drafted in 1948. And the other three have been filed in just the last four years: a 2019 case against Myanmar alleging genocide against the Rohingya minority; a 2022 case alleging Russia had abused the convention as a pretext for an illegal invasion of Ukraine, and that Russia appeared to be planning acts of genocide in Ukraine; and the current case against Israel.

Israel categorically denies the accusation, and the 17 judges sitting, in this case, are now deliberating whether to order “provisional measures”, a temporary order that would ask Israel to take proactive steps to ensure genocide doesn’t occur in the future, while the case is pending.

The case has understandably aroused extremely strong emotions. I am not going to analyze South Africa’s allegations or Israel’s counterarguments here. Rather, I want to explore what the case tells us about how the ICJ functions and the role it plays in human rights overall, not only in this case but in others, too.

On the one hand, we see a system in which countries can be called before a neutral tribunal to account for their actions.

Equally important, a country accused of wrongdoing can defend itself with reason and evidence before a panel of jurists, rather than a court of public opinion that increasingly seems fuelled by emotional demagoguery and misinformation.

That is the system that Israel and the other signatories to the Convention on the Prevention and Punishment of the Crime of Genocide, commonly known as the Genocide Convention, created to uphold a value they deemed crucial to the world: preventing an extremely serious crime.

To do that, signatories accepted the possibility that they might one day find themselves on the receiving end of enforcement measures: no small thing for a sovereign state. But they accepted the treaty’s burdens to achieve a global goal. (There are some notable exceptions. China, which has faced widespread public accusations of genocidal intent and acts against its Uyghur minority, opted out of ICJ jurisdiction when it signed the convention.)

“Given the Jewish people’s history, it is not surprising that Israel was among the first states to ratify the Genocide Convention, without reservation,” Tal Becker, an Israeli lawyer, told the court in his opening statement.

By design, the treaty does not leave that preventive power in the hands of a political body, but with a court. “I do think it’s critically important that you have a court within the dispute resolution system,” said Rebecca Hamilton, a law professor at American University. “If you didn’t have the ICJ in the system, it would just come down to whichever state has the most political power.”

From another angle, you might see inherent weaknesses. Anyone who expects the International Court of Justice, which is based in The Hague, Netherlands, to wield the power that courts do in most domestic legal systems is likely to be sorely disappointed, for example. The ICJ has little investigative power, and it has no police force or ability to enforce its orders.

And Israel argued in court that South Africa’s case against it suggests the Genocide Convention can be exploited. The court’s ability to order provisional measures before it has ruled on whether genocide is actually happening, Israel added, could reward Hamas for terrorism.

What’s actually happening in this case?

In late December, South Africa alleged that Israel had violated its obligations under the Genocide Convention by engaging in genocidal acts against Palestinians during the war in Gaza and by failing to prevent and prosecute incitement to genocide by its citizens. Importantly, this isn’t an international criminal case, but a treaty dispute between states. Hamas is not part of this case for the simple reason that it can’t be: It’s neither a state nor a signatory to the Genocide Convention.

(Hamas members could be criminally tried for genocide in a different court, however. The International Criminal Court, for instance, would have jurisdiction over those crimes, and currently has an open investigation into allegations of war crimes by Israel and by Palestinian militant groups.)

South Africa cited the scale of Israel’s military campaign in Gaza, which has killed roughly 1 in every 100 residents of the territory, and its restrictions on humanitarian aid, which the UN said has left Gaza on the brink of a devastating famine.

“Palestinians in Gaza are subjected to relentless bombing wherever they go,” Adila Hassim, a South African lawyer, told the court. “They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches and as they try to find food and water for their families.”

South Africa also pointed to incendiary statements by some Israeli lawmakers as evidence of incitement to genocide.

Israel fiercely denies the allegations and has also opposed the case on procedural grounds. If any genocidal acts have taken place, Becker said, they were those perpetrated against Israelis by Hamas, as part of the group’s “proudly declared agenda of annihilation.” He described some of the atrocities the group committed on Oct. 7, 2023, including the torture and murder of young children.

“There can hardly be a charge more false and more malevolent than the allegation against Israel of genocide,” Becker told the court. “Israel is in a war of defence against Hamas, not against the Palestinian people,” he added.

The court is likely to order some ‘provisional measures’ to prevent genocide

The judges may take years to reach a final decision. In the meantime, South Africa has asked the ICJ to order “provisional measures”, roughly similar to a temporary injunction, to protect Palestinians now. It has asked the court to order Israel to immediately suspend its military operation in Gaza, to allow more aid into the territory and to ensure other protections against genocide and incitement to genocide.

It is very difficult to win a genocide case at the ICJ, partly because proving genocidal intent is an essential element of the case. The court has only found such a violation once, in a case involving the Srebrenica massacre in Bosnia. And that only happened after the perpetrators had already been convicted of criminal offences by a different court.

But provisional measures have a relatively low legal threshold: Because their purpose is to prevent genocidal acts from occurring, petitioners essentially only need to show that there is a plausible risk of genocide.

That reflects the concerns of the treaty’s drafters, Hamilton said. The horrors of the Holocaust led them to prioritize “how to prevent this most horrific of crimes from occurring in the first place,” not just how to punish past violations.

“It’s likely that South Africa has satisfied the baseline test” for provisional measures, said Michael A. Becker, a law professor at Trinity College Dublin and former ICJ legal officer, but the court probably won’t order a cease-fire (Israel argued in court that South Africa’s request for a ceasefire “seeks to thwart Israel’s inherent right to defend itself.”)

The ICJ is more likely to simply order Israel to ensure that its forces comply with the Genocide Convention and allow the provision of more humanitarian aid, he said.

Yuval Shany, a law professor at the Hebrew University of Jerusalem, said the court might also order Israel to prevent or punish statements that could incite genocide. “One part of the application where I actually thought that the South African case was particularly strong is with regard to incitement,” he said.

A judgment can change things, even if it’s not enforced

Even if the court does order provisional measures, it has no direct means of enforcing them.

And last week, Prime Minister Benjamin Netanyahu appeared to pledge that Israel would defy any unfavourable court decision, saying the country would seek total victory against Hamas, and that, “Nobody will stop us — not The Hague, not the axis of evil and not anybody else.”

But that’s not the only way a court case can shape events. And indeed, some experts argue this case may already be affecting Israel’s actions. “The Israeli attorney general has announced that she’s now going to start investigating certain statements that might qualify as incitement to harm uninvolved civilians,” Shany said. “I believe it’s not accidental that this was issued a few days before the hearings.”

Becker noted that in the weeks since South Africa filed its case, the Israeli government has also announced that it will soon scale back its military operation in Gaza, and that it has reached a new agreement to allow more humanitarian aid into the territory.

If Israel is reacting to the case, that would fit a pattern that Kate Cronin-Furman, a professor at University College London, identified in her 2022 book ‘Hypocrisy and Human Rights’. When faced with international pressure for accountability, she found, governments often created domestic processes that were intended to provide enough accountability to relieve outside criticism.

In some of the cases she looked at, those processes were essentially shams. But they did indicate that international pressure can be potent enough to inspire a response.

Israel, which is heavily reliant on the United States and other allies for military and other support, may be vulnerable to that kind of outside pressure, Shany suggested. “I think for Israel, the stakes here specifically are that it is concerned about the loss of political support from its allies in Europe and North America,” he said.

If the court issues provisional measures, and Israel does not comply, that would “generate certain costs, at least at the international level,” he added.

But he and other experts see risks for the court, too. If it appears too easy to obtain provisional measures, then states might reconsider their willingness to be part of the treaty, which could undermine the convention’s protections over the longer term. “I’m not sure that we are at the point yet where the court has reached this stage,” Shany said. “But, I think we might be moving in that direction.”

-New York Times