Why Israel Can’t Just Wave Away International Justice Charges

The Peace Palace is an august turn-of-the century building nestled in a woodsy neighborhood in The Hague. Its construction was largely funded by Andrew Carnegie, and its purpose reflected the idealism of the prewar era. The palace would feature a vast library of books about world peace and international relations and house a court of arbitration where nations could peacefully settle their conflicts. 

Today, it is also the seat of the International Court of Justice, a principal organ of the United Nations that adjudicates legal disputes between U.N. member states. The ICJ—sometimes referred to as the World Court—is made up of 15 judges from around the world who are elected in votes at the U.N. General Assembly and Security Council. Sometimes the cases before the ICJ are relatively low-stakes territorial disputes between otherwise friendly neighbors. Belize and Honduras, for example, are in court over competing claims to some uninhabited Caribbean cays. Other times, the ICJ is asked to weigh in on some of the heaviest issues of international law—including, as of this week, whether Israel is committing genocide against Palestinians.

On December 29, South Africa lodged a complaint against Israel, alleging that Israel’s conduct in Gaza is in violation of the Genocide Convention. Israel was quick to dismiss the allegation as antisemitic. A government spokesperson called the charges “South Africa’s absurd blood libel.” The White House piled on. “We find this submission meritless, counter-productive and completely without any basis in fact whatsoever,” spokesperson John Kirby said in a press conference.

But South Africa’s application to initiate proceedings against Israel cannot be so easily dismissed. In 84 pages, South Africa presents a detailed case intended to establish that Israel acted with genocidal intent—a high legal threshold required to prove the crime of genocide under international law. Citing reports from the United Nations, NGOs, media (including from Israel), and perhaps most significantly the utterances of senior Israeli officials, the brief purports to show evidence of clear Israeli violations of the Genocide Convention. Over a dozen senior civilian and military leaders are quoted, including Prime Minister Benjamin Netanyahu. Their words are cited as evidence that the death and displacement of Palestinians is not merely an unfortunate consequence of Israel’s military campaign against Hamas, but part of the point. This is from page 62 of the brief:

On 28 October 2023, as Israeli forces prepared their land invasion of Gaza, the Prime Minister 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.”

Despite the dismissive attitude by the White House and the initial reaction from Israeli officials, Israel now seems to be taking this seriously. The Netanyahu government could have opted to boycott the proceedings, and there were even rumors that Israel would hire the clownish Alan Dershowitz to represent it before the ICJ. Instead, a highly respected British lawyer and academic named Malcom Shaw will defend Israel at the court this week, in a proceeding that will begin Thursday.

So what can we expect from South Africa v. Israel? Not much—at least for a while.

The ICJ has a recent history of hearing genocide complaints. In 2019, the small West African nation the Gambia took Myanmar to court for its alleged genocide of the Rohingya minority group. In 2022, Ukraine accused Russia of genocide. In both cases the court moved relatively quickly to issue an emergency ruling, effectively ordering the killing to stop. Needless to say, these rulings were disregarded, which reveals an important feature of the ICJ: While its rulings are legally binding, it has no real enforcement mechanism, and sometimes governments simply ignore the court’s decisions.

A second key feature of the ICJ is that the wheels of justice move very, very slowly. While the ICJ may be swift to issue an emergency ruling—what the ICJ calls “provisional measures”—it will likely be many years before this case is settled one way or another.  In The Gambia v Myanmar, it took the ICJ four years to decide if it even had jurisdiction to hear the case in the first place. It has still not issued a final ruling.

While it is fair to assume that South Africa v. Israel will have rather limited near-term impact on the course of events in Israel and Palestine, the same cannot be said about a second legal proceeding that is developing across town in The Hague at the International Criminal Court. Whereas the ICJ is the court where states go to sue each other, the ICC is a court that prosecutes individuals for war crimes and crimes against humanity. And here, we can expect swifter and potentially more meaningful action.

The ICC has jurisdiction to prosecute war crimes (including genocide) committed in Palestinian territory. It can also prosecute such crimes committed by Palestinians in Israel. In other words, both the October 7 attack and Israel’s subsequent military campaign fall squarely in the crosshairs of the ICC. Chief Prosecutor Karim Khan, a British barrister who previously led U.N. efforts to investigate crimes against humanity committed by ISIS, has made it abundantly clear that he intends to pursue charges.

Khan was quick to condemn the October 7 attack and has visited the region twice. On October 29, he stood on the Egyptian side of the Rafah crossing to decry the apparent obstruction of humanitarian aid to Gaza. On December 9, at the invitation of the families of hostages and victims of the Hamas attacks, Khan traveled to Israel, and then on to the West Bank. In Israel he met with victims, paid his respects at a makeshift memorial erected at the site of the Nova Music Festival, and saw firsthand the aftermath of the attacks on two nearby kibbutzim. “I witnessed scenes of calculated cruelty,” he said in a statement issued after his visit. “The attacks against innocent Israeli civilians on 7 October represent some of the most serious international crimes that shock the conscience of humanity, crimes which the ICC was established to address.”

Khan has also warned Israeli officials that the obstruction of aid is a war crime under the ICC’s jurisdiction and that the legal burden falls on Israel to demonstrate that hospitals, mosques, and civilian infrastructure that would normally be off limits in a time of war had somehow lost their protected status. “Conflict in densely populated areas where fighters are alleged to be unlawfully embedded in the civilian population is inherently complex, but international humanitarian law must still apply, and the Israeli military knows the law that must be applied,” he said.

The ICC prosecutor has a degree of leeway to issue arrest warrants, and three years since taking the job, Khan has proven to be more audacious than his predecessors. In March, for example, he unsealed an arrest warrant for Vladimir Putin on charges related to the systematic kidnapping of Ukrainian children. Putin is clearly undeterred, but the warrant has not been without impact. The Russian leader was forced to skip a summit in South Africa in June amid concerns that South Africa would be obligated to arrest and extradite him to The Hague.

While we do not know the precise nature of the charges, Khan is very likely to unseal indictments against Israeli and Hamas officials long before the International Court of Justice decides the outcome of South Africa v. Israel. Unlike the ICJ, the ICC can be harder to ignore. Fully 123 countries are members of the ICC. This excludes the United States, but it includes much of Europe. Indictments against senior Israeli officials will complicate relations between Israel and members of the ICC, and the ability of Israeli officials under indictment ever to visit a country that is a member of the ICC may be circumscribed. Any indictments will be an albatross around the neck of Israeli officials unless or until they opt to defend themselves in court.

Indictments against Hamas officials may carry the same legal weight as those against Israelis, but the diplomatic impact will be far more limited given that Hamas is already widely proscribed as a terrorist organization among many ICC member states. The few countries where Hamas has a presence, such as Qatar, are not ICC members.

The Peace Palace was constructed decades before the term genocide entered the lexicon. The International Criminal Court was created in the late 1990s and early 2000s precisely in response to the Rwanda and Bosnia genocides. Now the ICJ and the ICC are both probing the war in Gaza in pursuit of accountability. Both proceedings will move forward at their own pace and within the strictures of the respective institutions. And at both venues, sooner or later, Israel is going to be forced to answer for its conduct in this war.