[This post is a follow-up to a recent post on Prometheus-Speaks titled: “The Central Flaw of the 1948 Genocide Convention: Fixing the Definition of Genocide Under International Law,” and this post should be read in conjunction with that earlier one.]
Article IX of the 1948 Genocide Convention authorizes states that are party to it to bring disputes under the Convention, including those relating to responsibility of a state for genocide, before the International Court of Justice in The Hague. South Africa has availed itself of this provision to bring an accusation of genocide against Israel for its siege of Gaza. How should we assess the allegations as to whether either of the parties to the conflict has committed genocide?
Let me begin by making the point that like any determination of legal responsibility, a definitive determination of responsibility for genocide requires consideration of all of the available evidence brought in connection with the case. And there will be a ton of evidence submitted in the ICJ case against Israel — evidence to which most of us do not have access. Accordingly, this inquiry must rely on what is available in the media and other public sources – an admittedly incomplete record.
Starting with Israel, it would appear that the case for genocide is a weak one based on current information, notwithstanding the enormous bloodshed inflicted by Israel in its response to the October 7 attacks. As noted in my earlier post, responsibility for genocide requires a finding that the allegedly genocidal acts were committed with the intent to destroy a protected group in whole or in part. This intent requirement is usually the most difficult element of genocide to prove, and that will certainly be the case with Israel’s actions in Gaza. As noted in my earlier post, not every case of mass killing qualifies as genocide under the Convention’s definition of the crime. Accordingly, a careful examination of the evidence by the Court will be required to ascertain Israel’s intent.
Nevertheless, available information would seem to indicate that Israel’s prosecution of the war is being done with the intent of destroying Hamas’s ability to threaten Israel, rather than to destroy the Palestinians of Gaza, either in whole or in part. The situation is complicated by certain repugnant statements by right-wing politicians to the effect that the Gaza Palestinians should be driven elsewhere or even wiped out. These could be seen as incitement to genocide, which is also barred by the Convention. Israel will need to establish that these individuals were not speaking on behalf of the government and had absolutely no role in setting the goals or strategy of the war in order for these statements not to be considered evidence of Israel’s intent in carrying out the war. If Netanyahu had taken action to remove these individuals from the government as soon as they made their statements, they would be less of a threat to Israel’s case, but Netanyahu is dependent on the support of these right-wing elements for his political and legal survival. It is always possible that cases of individual soldiers committing acts of genocide in connection with the war may emerge, and if it were found that the Israeli government failed to prevent, stop, and punish such genocidal acts, Israel could be found to have failed to carry out its legal obligations to do so under the Genocide Convention. In this regard, it should be noted that the ICJ is not a criminal court and has no jurisdiction to try individuals for crimes, no matter how serious they may be. Rather, it is limited to assessing the responsibility of states for violations of law, in this case the Genocide Convention.
On the other hand, the case that Hamas has committed genocide is considerably stronger. While the most genocidal language in Hamas’s charter has apparently been removed, the way the Oct. 7 attacks were carried out strongly indicates genocidal intent, and I would be surprised if there were not additional statements by Hamas and its representatives evincing the organization’s genocidal goals. So vicious is Hamas’s antisemitism that there can be little doubt that, if it could, the organization would slaughter all Jews in Israel and even elsewhere. Hamas is not only responsible for permitting its members to carry out genocidal acts, but for actively seeking to carry out such acts in its own name and on its own behalf.
However, as Hamas is neither a state nor a party to the Genocide Convention, it cannot be brought before the ICJ. It is conceivable that the International Criminal Court in The Hague which, unlike the ICJ, can prosecute individuals accused of genocide, would have jurisdiction to pursue cases against Hamas offenders. However, it might prove difficult or even impossible to find a state able and willing to extradite Hamas offenders to the Court.
On January 26 of this year, the ICJ ordered certain provisional measures to be taken in the case brought by South Africa against Israel, pending a decision on the merits of the case which will likely take several years to reach. These measures were considered to be something of a mixed bag, insofar as neither party got everything it wanted. Although these measures are without prejudice to the ultimate decision on the merits of whether Israel is responsible for genocide, two of the measures are particularly relevant to that issue. First, the Court ordered Israel to take all measures within its power to prevent genocide. Second, it ordered Israel to prevent and punish acts of incitement to genocide. Notably, the Court did not order a cessation of hostilities in the war, which was a big relief to Israel. At most, it can be said that the Court’s order found the allegations against Israel to be plausible – a relatively low bar to meet. If the Court were more convinced of the case against Israel, it would likely have ordered stronger measures to protect Palestinians. Instead, it ordered Israel to take measures that it, like all parties to the Genocide Convention, were already obligated to take even before the ICJ case was ever brought. Nevertheless, there is enough in the decision to be of some concern to Israel. Again, a definitive answer on the genocide question will require a full review of the available evidence.
So, such is the state of affairs as regards assessing responsibility for genocide in the Israel-Hamas conflict. How sadly ironic it is that current legal activity on the issue is focused on the wrong party.