The Bad Genocide Decision of the International Court

Whichever side you take in the Israel-Hamas War, 'the erstwhile “World Court ” is now as debased as so many other United Nations agencies, such as the General Assembly and the Human Rights Council'.

From The Imaginative Conservative

By Ralph Gaebler, JD

The International Court of Justice (ICJ) issued its preliminary ruling in the genocide case brought by South Africa against Israel on January 26, 2024. It landed with a thud, the world shrugged its shoulders, and nothing changed. The ruling was provisional, and a final ruling on the merits may be years away. But this is not why the ICJ ruling is of marginal jurisprudential importance. A close reading reveals that the erstwhile “World Court” is now as debased as so many other United Nations agencies, such as the General Assembly and the Human Rights Council, not to mention the office of the Secretary General. Its ruling can only be described as perfunctory and mechanical, filled with faux jurisprudence that tries, but fails, to conceal the ICJ’s bias. Whatever prestige the ICJ seeks to retain through the observance of ceremonial pomp and circumstance is in tatters as a matter of fact for any serious observer of its deliberations.

The meat of the decision resides in the ICJ’s consideration of two questions: 1) whether it had prima facie subject matter jurisdiction under Article IX of the Genocide Convention to consider whether to issue provisional measures; 2) whether the factual circumstances of the war in Gaza justified the Court’s issuance of provisional measures under Article 41 of the Statute of the Court.

The question of whether the ICJ had prima facie jurisdiction required it to determine whether, under Article IX of the Genocide Convention, there exists a “dispute” between South Africa and Israel, and whether the acts of the Israeli army complained of by South Africa fall within the compass of the Convention so as to establish the ICJ’s subject matter jurisdiction under the compromissory clause of Article IX, which confers on the ICJ power to settle disputes “relating to the interpretation, application or fulfillment” of the Genocide Convention.

The first question is interesting, and the ICJ essentially ignored Israel’s argument that no evidence of genuine dispute yet exists because South Africa declined Israel’s offer to discuss the matter at the level of interstate diplomacy. Instead, the ICJ referred to public statements made by the South African representative at the United Nations, and to “a document published by the Israeli Ministry of Foreign Affairs on 6 December 2023 which was subsequently updated and reproduced on the website of the Israel Defense Forces on 15 December 2023 under the title ‘The War Against Hamas: Answering Your Most Pressing Questions’[.]” The ICJ apparently found the difference in purpose between statements published on a public website and diplomatic talks to achieve clarification to be nonexistent or immaterial. The ICJ provided no justification for its conclusion, despite its assertion that in determining whether a dispute exists, it must “take[] into account in particular any statements or documents exchanged between the Parties, as well as any exchanges made in multilateral settings[‘],” and that “[i]n so doing, it pays special attention to the author of the statement or document, its intended or actual addressee and its content.”

However, the more significant question was whether the acts complained of by South Africa conferred subject matter jurisdiction on the ICJ. Israel argued that they did not because South Africa failed to provide even prima facie evidence of genocidal intent. The ICJ’s surprising response was to state that to establish prima facie jurisdiction it is “not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have occurred…[,]” but that its sole “task is to establish whether the acts and omissions complained of by the applicant appear to be capable of falling within the provisions of the Genocide Convention.” It then went on to conclude that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.”

This is jurisprudential sleight of hand. Israel correctly pointed out in its response that South Africa provided no evidence of intent, but merely alleged that “Israel ‘has perpetrated and is perpetrating genocidal acts identified in Article II’ of the Convention and that ‘its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza, part of a protected group under the Genocide Convention’.” It then went on to describe the acts in question as “killing Palestinians in Gaza, causing them serious bodily and mental harm, inflicting on them conditions of life calculated to bring about their physical destruction, and the forcible displacement of people in Gaza.” South Africa further alleged “that Israel ‘has . . . failed to prevent or to punish: genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide, contrary to Articles III and IV of the Genocide Convention.’” Thus, South Africa cited no allegedly genocidal Israeli statement or statements as evidence of its allegation, or even any relevant circumstantial evidence. Nor did South Africa even state a coherent allegation of genocidal intent. Rather, it made only a conclusory statement that Israeli acts were “genocidal,” and claimed that Israeli officials and/or agents acted with “intent to destroy Palestinians.” Neither of these claims actually amounts to an allegation of genocidal intent. Then South Africa enumerated acts that cannot be construed as acts of genocide alone without accompanying evidence of genocidal intent.

Nevertheless, the ICJ concluded that to establish prima facie jurisdiction it could focus on allegations of acts alone and ignore the requirement in Article II of the Genocide Convention that the acts be carried out with a specific “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, a such.” To understand what a departure this analysis represents, one need only review the ICJ’s own precedents. In 1999 Yugoslavia instituted proceeding against ten NATO states before the ICJ, claiming that the NATO bombing campaign constituted genocide. In its order on provisional measures involving application of the Genocide Convention, the ICJ ruled that “the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention.” The Court was not convinced that the bombings “indeed entail the element of intent, towards a group as such…” and therefore held that the alleged acts were not “capable of coming within the provision of the Genocide Convention.” Therefore, no prima facie jurisdiction could be established. In other words, evidence that certain acts occurred cannot be construed as evidence of genocide, for the purpose of establishing prima facie jurisdiction, without accompanying evidence that the acts were undertaken with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The ICJ simply ignored this precedent; it neither overruled the precedent nor attempted in any way to distinguish it from the present case.

Thus, in its application of the analytical framework for establishing prima facie jurisdiction, the ICJ incorrectly gave itself permission to simply read the crucial element of intent out of the definition of genocide. In other words, it held that it need not address the question of intent at all until reaching the merits stage of the proceeding. Logically, it ought to have held as well that it therefore need not address whether the acts complained of fall within the subject matter of the treaty. If it was prepared to read one element of the crime of genocide out of the definition, why didn’t it just go ahead and read all the elements out of the definition in order to claim prima facie jurisdiction by fiat?

In summary, the ICJ held that it had prima facie jurisdiction without requiring even a viable allegation, much less any evidence, of genocidal intent. In so doing it consequently also mistakenly held that the acts alleged fell within the scope of the Convention. Therefore, it failed as well to require South Africa to meet any evidentiary burden with respect to relevant acts.

The ICJ’s strategy in establishing its prima facie jurisdiction crucially carried over into its consideration of whether Article 41 of the Statute of the Court justified any of the provisional measures requested. The first question it addressed was whether the deprivations suffered by Palestinian non-combatants (described by the ICJ as “rights” attributable to South Africa as a party to the Genocide Convention) were “plausible.” Plausibility is a concept that entered the ICJ’s jurisprudence in the 2009 decision, Belgium v. Senegal, and is still evolving. It originally referred to legal plausibility only, meaning that it ensured that the applicant state asserted claims that are plausible under international law. It answered the question: does the applicant claim rights that actually exist under treaty or customary law and that belong to it? However, in the ICJ’s more recent case law determination of plausibility has also involved a factual inquiry. It answers the question: is there sufficient evidence that the actions of the respondent state breach the rights asserted? The relationship of this factual inquiry to the factual inquiry required to determine the existence of prima facie jurisdiction is unclear, other than that it obviously requires a larger quantum of evidence to justify provisional measures.

Once again, Israel argued that there was no plausible evidence of genocidal intent. It argued that relevant evidence in fact plausibly showed an absence of genocidal intent, pointing out the measures taken by the Israeli military to “mitigate harm when conducting operations and to alleviate hardship and suffering through humanitarian activities in Gaza…” Israel also pointed to ‘the Attorney General’s recent announcement that “[a]ny statement calling, inter alia, for intentional harm to civilians . . . may amount to a criminal offense, including the offense of incitement” and that “[c]urrently, several such cases are being examined by Israeli law enforcement authorities”.’

However, the ICJ ignored Israel’s argument, and indeed ignored the question of genocidal intent altogether. It noted only that “the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole.” It then went on to describe the scope of the humanitarian disaster in the Gaza Strip, and from this concluded that “the facts and circumstances… are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.” Thus, it concluded either that the substantiality of the disaster vitiated the need to demonstrate plausible evidence of intent, which is a willful misconstrual of its own quoted precedent, or implicitly accepted the South African argument that genocidal intent could be inferred from the scope of the disaster. Either way, it once again read the Article II requirement of genocidal intent out of the definition of genocide for the purpose of establishing the legal and factual plausibility of the Palestinian/South African “rights.”

Moreover, the ICJ’s rehearsal of evidence supporting its conclusion was truly egregious. After conceding that “figures relating to the Gaza Strip cannot be independently verified,” it went on to cite “recent information,” presumably provided by the notoriously unreliable Hamas Health Ministry, to establish the scope of the humanitarian crisis. It also relied on details of the crisis supplied in a statement issued by the Commissioner-General of UNRWA, an agency that has been shown to have been complicit in facilitating Hamas’ terrorist activities, and some of whose employees may have actually taken part in the Oct. 7 pogrom. It also cited the UNRWA statement’s reference to allegedly “dehumanizing language” attributable to various Israeli officials, as if that were a substitute for evidence of genocidal intent. The ICJ relied almost entirely on biased and demonstrably false information supplied by interested parties to conduct its analysis of the facts.

Finally, the ICJ considered the causal nexus between reparation of the rights claimed by South Africa and the provisional measures requested, as well as the necessity of provisional measures to avert irreparable harm to non-combatant Palestinians. Once again the ICJ simply brushed aside the Israeli argument that no nexus exists because the measures would be “for the protection of a right that could not form the basis of a judgment in exercise of jurisdiction under the Genocide Convention”. The ICJ found that the Israeli argument was not germane since it had already established plausibility of the rights asserted, and stated simply that “by their very nature, at least some of the provisional measures sought by South Africa are aimed at preserving the plausible rights it asserts on the basis of the Genocide Convention in the present case…” Nowhere here, or in its consideration of whether the “rights” of the Palestinians were “plausible” in the first place, did the ICJ bother to consider whether Israel is principally responsible for the harm done in the Gaza Strip but seems to have simply assumed this without considering Hamas’ role in intentionally exposing the Palestinian people to harm.

There are in fact several good things to say about the decision. First, it is provisional only, and as noted the ICJ appropriately stated that it did not “ascertain whether any violations of Israel’s obligations under the Genocide Convention have occurred.” Second, the ICJ did not give South Africa what it really wanted, namely an order to Israel to cease its war entirely. Instead, it effectively ordered Israel not to violate the Genocide Convention while conducting hostilities against Hamas. This is not as good a result as it might seem, since the ICJ somehow managed to avoid recognizing that criminal intent is an essential element of genocide, at least for the purpose of justifying provisional measures. Therefore, the ICJ and Israel might disagree on what compliance with those measures requires. However, in the current political environment it is a solid win for Israel, and no one should mistake the ICJ’s decision as license to claim that it legitimizes the conclusion that Israel is engaged in genocide.

However, the decision remains extremely problematic not only jurisprudentially, but especially politically. Having boot-strapped its prima facie jurisdiction and having then perfunctorily cited incomplete and biased evidence to justify its provisional measures, without requiring any evidence of genocidal intent, the ICJ has undertaken a faulty analysis of the matter that sets a bad precedent and invites future use of the Genocide Convention as a political weapon. This is especially true given the very liberal standard the ICJ adopted for establishing South Africa’s standing to bring suit in the first place. In the process it has reduced its own credibility and invited bad actors to use the ICJ as a tool of international propaganda. The United States was wise to opt out of Article IX, and the moral of the story is that Israel should have done so as well. We now live in a world of strange and unfortunate political ironies.