OPINION: Israel accused of genocide in Gaza before the International Court of Justice

Following the Oct. 7 Hamas attacks on Israel, the Israeli Defense Forces have waged an all-out bombing campaign and ground invasion of the Palestinian enclave of Gaza.

As the death toll has risen and continuation of life in Gaza has become ever more precarious, commentators have raised the question of whether Israel is perpetrating genocide. Genocide is defined as the destruction “in whole or in part, a national, ethnical, racial or religious group as such”. Statements of genocidal intent from Israel’s own officials have only fueled greater concern about what is unfolding.

On Thursday, January 11 and Friday, January 12, the International Court of Justice at the Hague will hear arguments in a case brought by South Africa accusing Israel of genocide against the Palestinians in Gaza.

by Liz Shiverdecker

Last month, South Africa filed a case against Israel with the International Court of Justice, a UN body also known as the World Court. In a comprehensive 84-page brief, South Africa lays out evidence that Israel is committing genocide against the Palestinians of Gaza. Specifically, South Africa accuses Israel of committing these violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Direct and public incitement to commit genocide.

A finding of genocide from the ICJ could take years. South Africa has requested an expedited hearing to ask the ICJ to issue what we might consider a provisional ruling ordering Israel to cease and desist any activity in Gaza which risk furthering genocide. The standard for such a ruling would be a finding there is a plausible legal case that Israel has committed genocide or risks committing further acts of genocide against the Palestinians.

The hearing at the ICJ in the Hague will take place from January 11 to 12. A ruling one way or another could come anywhere from days to months following this hearing.

Some key details from South Africa’s filing will be laid out below, as well as some incredibly damning expressions of genocidal intent from Israeli officials. First, it’s worth exploring what the potential outcomes and implications of this filing and ruling could be for Israel as well as for the US and any other state supporting Israel’s military campaign in Gaza.

What power does the ICJ have?

The International Court of Justice is distinct from the International Criminal Court. In the ICJ, all member states of the UN are signatories of the court, whereas the US and Israel are not signatories of the International Criminal Court.

Unlike the ICC, which criminally prosecutes individuals accused of war crimes and other violations of international law, the ICJ is where UN member states can seek redress of grievances with other UN member states in a civil proceeding.

Even though this will be a civil proceeding rather than a criminal one, this does not mean that a ruling against Israel would be inconsequential. The 1948 Genocide Convention binds all UN member states not only to refrain from materially supporting a genocide, but also requires them to take action to prevent it.

However, the court itself has no enforcement mechanism apart from the international consensus on the legitimacy of the court’s rulings. It will be up to each signatory state to the Genocide Convention to decide how to interpret the ruling and how to act. 

How will the ICJ make its decision?

On Thursday, the court will hear from South Africa’s side and then from the Israeli side on Friday. Israel has not yet published how it intends to defend itself in court.

South Africa’s complaint cites numerous statements from UN officials and bodies including UNICEF, UNRWA, UNCHR and others. It’s worth noting that in just four months, 144 UN workers have been killed in Gaza, more than in any other conflict since the UN’s founding. UN officials have repeatedly expressed dismay at the devastation in Gaza in superlative terms, the worst seen in any conflict this century. They’ve conveyed the anguish of starvation, thirst, wounds going untreated, orphaned children, total lack of hygiene, outbreaks of diseases and infections, overcrowding, and alarm over an imminent and total breakdown of civilian order. These powerful testimonies from UN officials will be difficult for the judges of the ICJ, itself a UN body, to dismiss.

Francis Boyle, an international human rights lawyer who has won two genocide cases before the ICJ, has said that the strengths and merits of South Africa’s case are overwhelming. Boyle predicts that the ICJ will grant South Africa’s request for a cease-and-desist order against Israel. Other scholars have echoed Boyle’s view.

However, even if the the facts and the law are on South Africa’s side, the ICJ is not immune to political pressure. The 15 judges at the ICJ are influenced by the political interests of their respective countries. At least eight of those 15 judges must agree for a cease-and-desist order to be imposed on Israel. Dr. Norman Finkelstein, one of the world’s leading experts on Gaza and a scholar of international law, has predicted a close vote in the ICJ. Finkelstein says that given the respective interests of the home countries of each of the judges, the court may not meet that 8-out-of-15 threshold.

How worried is Israel about the case?

Israel’s officials clearly are not taking this proceeding lightly. The day that South Africa presented its filing, Israeli spokesperson Eylon Levy responded that the accusations were baseless and that Israel would defend itself in court. Levy also condemned South Africa for making itself “criminally complicit with the perpetrators of the Oct. 7 massacre”. He went on to accuse South Africa of committing “blood libel”, resorting to Israel’s often-used tactic of deeming its critics “antisemitic”.

Subsequently, Israel’s Foreign Ministry sent an urgent cable to its embassies around the world. An excerpt from the cable reads: “A ruling by the [ICJ] could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications”. Israel’s diplomats are instructed to press the leaders of their host countries to come out strongly to reject South Africa’s brief as “outrageous, absurd and baseless”.

Israel protests that they are doing all they can to limit civilian casualties. This point is certainly debatable. Israel also claims to be cooperating with international partners to increase aid shipments into Gaza, but recent reports call their sincerity on this point into question.

In a recent visit to the region, Senators Chris Van Hollen and Jeff Merkley found that Israel’s “arbitrary” and burdensome inspection process is severely limiting the amount and pace of aid delivery into Gaza. Hundreds of aid trucks are backed up for miles at the border crossings where they may have to wait weeks to enter Gaza. If an Israeli inspector finds anything at all on the truck that Israel doesn’t want entering the strip (even sometimes items as innocuous as tents), the truck’s entire contents have to be repackaged and the truck must begin the weeks-long wait at the crossing all over again.

This might be explained away as bureaucracy run amok, but the Israeli human rights watchdog B’tselem has described the restriction of aid as “a direct result of Israel’s declared policy”. This echoes a previous report by Human Rights Watch that accuses Israel of using starvation as a weapon of war.

What will the US do?

The US has long been one of Israel’s staunchest supporters globally. On average, the US provides nearly $4 billion in military assistance to Israel each year. In the current conflict, President Biden has gone further than any of his predecessors by refusing to draw any red lines when it comes to Israel’s military actions. Since Oct. 7, the US has twice used its veto in the UN Security Council to block binding resolutions calling for a ceasefire in Gaza.

White House National Security Council spokesman John Kirby has dismissed South Africa’s submission as “meritless, counterproductive, and completely without any basis in fact whatsoever”. Secretary of State Antony Blinken echoed a similar sentiment in a press conference in Tel Aviv on Tuesday. US officials have repeatedly said that they are “not seeing acts of genocide” in Gaza, but have also admitted they aren’t even investigating the matter. 

However, there are some signs of a change in tone among US government officials when it comes to Israel since South Africa submitted its filing. At least publicly, the US is trying to appear as if it is arguing for moderation by Israel and distancing itself from some of the more extreme rhetoric of Israeli officials.

Nevertheless, the US continues to unconditionally provide Israel with the weapons to continue its assault on Gaza. On the very day South Africa filed its ICJ brief, President Biden bypassed Congress to authorize a new shipment of weapons to Israel. This was the second time he had done so since Oct. 7.

If the ICJ finds it plausible that Israel is committing genocide in Gaza, Biden’s continued support for Israel would also make the US complicit in genocide. It would also raise the possibility of invoking the Leahy Act, a US law which prohibits the US from transferring weapons to any country that may use them against civilians.

It remains to be seen whether the US will abide by an ICJ finding of plausible genocide by Israel, or whether it will continue deepening its involvement in a conflict that’s seems poised to spread throughout the Middle East. That will be a topic for a future post.

South Africa’s case against Israel

You can read the full brief here. The details of the report are far too extensive to adequately convey in this post, but individual sections are broken down here for reference.

Background (pages 12 – 28)

On pages 12-28, South Africa’s brief provides the historical context from which they argue this genocide arose. It lays out key points the 75 year-long Israel-Palestine conflict, with a particular focus on Gaza since Israel withdrew its troops and illegal settlements from the territory since 2005.

Gaza is a narrow strip of land 5 miles wide by 25 miles long on the Mediterranean Sea. Home to 2.3 million people, over half of whom are children, Gaza is one of the most densely populated areas on earth. Over 70% of Gaza’s inhabitants are already refugees or the descendants of refugees from Israel’s 1948 war for independence. During that conflict, some 750,000 Palestinians were forcibly driven from their homes in what is today the state of Israel proper. Palestinians call this expulsion “the Nakba”, meaning “catastrophe” in Arabic.

The Gaza Strip has variously been described as an “open air prison” and even as the “largest concentration camp ever to exist“.

For the past 16 years, Israel has imposed an illegal blockade on Gaza. Despite no longer having a permanent military presence in the Strip, Israel still maintains control of Gaza’s border as well as its sea and airspace. Israel imposed strict limitations on everything coming in and out of the Strip, including food, building materials and medical supplies. As a result, 70% of Palestinians in Gaza experienced severe food insecurity even before Oct. 7.

The current carnage in Gaza is massive, but it is nothing new. Since 2005, Israel has carried out at least eight deadly full-scale military operations in Gaza. In each case, the death toll was overwhelmingly civilian. Until now, one of the most egregious examples of Israeli aggression against Gaza arose as a response to the 2018 Great March of Return. This was a series of non-violent demonstrations by Palestinians in Gaza seeking self-determination. Over several months, IDF snipers killed and maimed peaceful demonstrators, including children, medics, journalists, people in wheelchairs or on crutches, none of whom posed any threat.

Casualty and damage figures in Gaza since Oct. 7, as of Jan 4, 2023 (from Euro Med Monitor)

Killing members of the group (pages 31 – 35)

Since Oct. 7, direct assaults by the IDF have killed over 30,000 people – among them over 6,000 women and 12,000 children. Over 90% of the casualties are civilians.

Not only that, the IDF has killed educators, journalists and medical personnel, many of them in apparently targeted attacks.

Israel has repeatedly targeted residential buildings, schools, hospitals, mosques, churches, UN shelters, refugee camps and other places where large numbers of civilians were sheltering.

Families have also lost multiple family members and in some cases have been entirely wiped out. From page 33 of South Africa’s filing:

“An estimated 1,779 Palestinian families in Gaza have lost multiple family members, and hundreds of multigenerational families have been killed in their entirety, with no remaining survivors — mothers, fathers, children, siblings, grandparents, aunts, cousins — often all killed together.”

Causing serious bodily or mental harm to members of the group (pages 35 – 37)

In the IDF’s current campaign in Gaza, over 55,000 people have been wounded, many of them suffering life-changing injuries. This includes at least 1,000 children who have had one or both legs amputated, often without anesthetic. Because of Israel’s targeting of Gaza’s health facilities, these wounds often go untreated.

The filing also mentions credible reports that the IDF has used white phosphorus in densely populated civilian areas. White phosphorus heats up to about 1,472 °F. Its use in combat, even against combatants, is a violation of international law due to the grievous injuries it inflicts. Citing the World Health Organization, the authors write on page 35, “even small amounts of white phosphorus can cause deep and severe burns, penetrating even through bone, and capable of reigniting after initial treatment”.  

The brief also speaks to the affliction of mental trauma on the people of Gaza, including children, many of whom have been left orphaned. This is certain to have exacerbated the mental scars which were evident among Gaza’s population, even before Oct. 7. Citing a 2023 report from the charity Save the Children, South Africa’s brief states on page 35 that prior to Oct. 7, “80 per cent of Palestinian children [in Gaza] experienced higher levels of emotional distress, demonstrating bedwetting (79 per cent) and reactive mutism (59 per cent), and engaging in self-harm (59 per cent), and suicidal thoughts (55 per cent).”

Conditions of life calculated to bring about physical destruction in whole or in part (pages 37 – 57)

On Oct. 9, Israel’s Defense Minster Yoav Gallant announced that Israel would cut off all water, fuel and electricity to Gaza. In addition to this, page 42 of South Africa’s brief observes that the IDF has carried out “continuing strikes on Gaza, including on its bakeries, water facilities and last remaining operating mill, and its razing of agricultural lands, crops, orchards and greenhouses”. The four-month medieval-style siege and destruction of Gaza’s infrastructure have pushed civilians to the brink of survival. South Africa’s brief cites a WHO report which states that:

“An unprecedented 93% of the population in Gaza is facing crisis levels of hunger, with insufficient food and high levels of malnutrition. At least 1 in 4 households are facing “catastrophic conditions”: experiencing an extreme lack of food and starvation and having resorted to selling off their possessions and other extreme measures to afford a simple meal.”

Since Oct. 7, IDF bombing has destroyed over 60% of Gaza’s housing stock. The north of Gaza in particular has been rendered almost wholly uninhabitable and will take nearly a decade to rebuild. Nearly 2 million of Gaza’s inhabitants are now internally displaced, with much of the population in the north having been forced to evacuate to the south. During the evacuation, the IDF bombed and killed civilians fleeing south, including along what the IDF had designated as “safe routes”. Despite promises of safe zones in the south, the IDF has continued to bomb civilians in this area as well.

Repeated IDF strikes on hospitals, clinics and ambulances have rendered Gaza’s health systems non-functional in the north and severely strained in the south. Shortages of critical medical supplies have made rendering aid to the sick and wounded nearly impossible. UN aid workers have warned that deaths from starvation, dehydration, disease and lack of hygiene among displaced Gazans may soon outpace deaths from direct IDF violence.

Imposing measures intended to prevent births within the group (pages 57 – 59)

An overlooked aspect of the conflict is its effect on pregnant women and new mothers. According to the brief, over the course of the conflict, two mothers have been killed every hour in Gaza. Citing news sources, the report references on page 58 “multiple eye-witness accounts of pregnant women being killed by Israeli soldiers, including while trying to access healthcare”.

The premature birthrate in Gaza has also increased between 25-30% due to the horrid conditions, lack of shelter, and stress on pregnant mothers. Lack of access to basic healthcare as well as adequate food and medicine have also left pregnant women and newborn babies more vulnerable to disease and malnutrition. Pregnant women suffering complications have also had to undergo emergency hysterectomies, saving their lives but rendering them barren.

The report also referred to a heartrending incident in November last year in which the IDF forced staff at Al-Nasr Hospital in northern Gaza to evacuate. The staff at first refused because there were premature infants in the ICU that couldn’t be transported. The IDF gave assurances that the infants would be taken care of. The babies were later found decomposing in their ICU cots.

In their own words- Israeli officials’ public incitements to commit genocide (pages 59 – 67)

Over 6 pages, the brief lays out incriminating public statements by members of Israel’s government as well as members of the military and other public figures. Historically, these statements makes the genocide case against Israel stand out, since it is usually difficult to prove genocidal intent by perpetrators.

Included are statements from Israeli public officials and public figures announcing their intent to commit genocidal acts as well as justifying and even glorifying such acts. Some officials have openly advocated for using starvation as a form of collective punishment against civilians, which is a war crime. Others have spoken of their desire to drive out most or all Palestinians out of Gaza and to rebuild illegal Jewish settlements in the territory.

Here’s a selection of statements reproduced as they appear in South Africa’s brief. For example, from page 59:

On 28 October 2023, as Israeli forces prepared their land invasion of Gaza, the Prime Minister [Benjamin Netanyahu] invoked the Biblical story of the total destruction of Amalek by the Israelites, stating: “you must remember what Amalek has done to you, says our Holy Bible. And we do remember”. The Prime Minister referred again to Amalek in the letter sent on 3 November 2023 to Israeli soldiers and officers. The relevant biblical passage reads as follows: “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses”.

High-ranking officials have also portrayed all of Gaza’s civilians as complicit in the Oct. 7 attacks, and therefore as legitimate targets. For example, Israeli President Isaac Herzog said on Oct. 12, 2023:

“It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware
not involved. It’s absolutely not true. … and we will fight until we break their backbone.”

This sentiment was echoed by Giora Eiland, an Israeli Army Reservist Major General, and also former Head of the Israeli National Security Council, and adviser to Defense Minister Gallant. From page 64:

“Who are the ‘poor’ women of Gaza? They are all the mothers, sisters or wives of Hamas murderers. On the one hand, they are part of the infrastructure that supports the organization, and on the other hand, if they experience a humanitarian disaster, then it can be assumed that some of the Hamas fighters and the more junior commanders will begin to understand that the war is futile.

Here are two more quotes from Eiland supporting a policy of denying humanitarian aid to Gaza. From page 61:

“This is what Israel has begun to do — we cut the supply of energy, water and diesel to the Strip . . .
But it’s not enough. In order to make the siege effective, we have to prevent others from giving assistance to Gaza . . . The people should be told that they have two choices; to stay and to starve, or to leave.

On page 64, Eiland mused on the desirability for epidemics in Gaza:

The international community warns us of a humanitarian disaster in Gaza and of severe epidemics. We must not shy away from this, as difficult as that may be. After all, severe epidemics in the south of the Gaza Strip will bring victory closer . . . It is precisely its civil collapse that will bring the end of the war closer. 

Other statements from members of the military and public figures have exhorted soldiers to commit genocidal acts in explicit terms. Here’s a particularly chilling and bloodthirsty example, from page 64:

On 11 October 2023, 95-year old Israeli army reservist Ezra Yachin — a veteran of the Deir Yassin massacre during the 1948 Nakba — reportedly called up for reserve duty to “boost morale” amongst Israeli troops ahead of the ground invasion, was broadcast on social media inciting other soldiers to genocide as follows, while being driven around in an Israeli army vehicle, dressed in Israeli army fatigues:
“Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live . . . Every Jew with a weapon should go out and kill them. If you have an Arab neighbour, don’t wait, go to his home and shoot him . . . We want to invade, not like before, we want to enter and destroy what’s in front of us, and destroy houses, then destroy the one after it. With all of our forces, complete destruction, enter and destroy. As you can see, we will witness things we’ve never dreamed of. Let them drop bombs on them and erase them.”

Some in Israel’s government have openly advocated for forcing all or most of Gaza’s Palestinians to leave Gaza to allow for the rebuilding of illegal settlements in the territory. From pages 61-62:

‘Tweeting’ on 13 October 2023, [Israeli Minister of Energy and Infrastructure] Israel Katz stated: “All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.” 

On 1 November 2023, [Israeli Minister of Heritage] Amichai Eliyahu posted on Facebook: “The north of the Gaza Strip, more beautiful than ever. Everything is blown up and flattened, simply a pleasure for the eyes … We must talk about the day after. In my mind, we will hand over lots to all those who fought for Gaza over the years and to those evicted from Gush Katif” [a former Israeli settlement]. He later argued against humanitarian aid as “[w]e wouldn’t hand the Nazis humanitarian aid”, and “there is no such thing as uninvolved civilians in Gaza”. He also posited a nuclear attack on the Gaza Strip.