ICJ case a blow to Israel

Tuesday 16 Jan 2024

Leading expert on human rights law and genocide William Schabas explains that any measures taken by the International Court of Justice on Israel’s war on Gaza would be a major blow to Israel in an interview with Manal Lotfy

ICJ case a blow to Israel


Israel is facing three simultaneous battles during its military campaign in Gaza.

First, there is the military battle against Hamas, in which it does not appear to be achieving any of its declared goals, even though the war is in its fourth month.

Second, there is the battle for international public opinion, which Israel appears to have lost. This week, huge demonstrations took place around the world from London, Paris, and Washington, to Brussels, Madrid, and Rome calling on the Israeli Government to immediately implement a ceasefire and bring urgent humanitarian aid to more than two million Palestinians in Gaza.



Third, there is the battle that Israel seems set to lose at the International Court of Justice (ICJ), where South Africa has filed a case against Israel accusing it of committing genocide against the Palestinians in Gaza. For two days, the world listened to the arguments of both legal teams as the court heard the case last week.

The South African legal team called on the judges to issue provisional measures under Article 41(1) of its charter, which states that the “court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.”

These temporary measures seek to protect civilians from severe harm or the risk of genocide and could include calling for a halt or freezing of fighting or guaranteeing urgent humanitarian aid to civilians caught up amid hostilities, plus other measures.

The court could issue such an order in a few weeks if it accepts the premise of the threat of genocide. But deciding on the merits of the case, that is of genocide being committed by Israeli forces in Gaza, could take several years.

Israel’s legal team said that the court could not issue provisional measures against Israel because that would prevent the Israeli state from exercising its right to defend itself and its citizens.

Many legal experts believe that South Africa’s case is strong enough for the ICJ to impose provisional measures on Israel, hoping to prevent and mitigate the danger of what could be genocide in the process.

In an interview with Al-Ahram Weekly, William Schabas, a leading expert on human rights law and genocide who was a member of the Sierra Leone Truth and Reconciliation Commission (2002-2004) and chairman of the Human Rights Council Fact-Finding Commission on the Gaza Conflict (2014-2015), argued that the Israeli legal team at the ICJ did not do a good job, expressing his believe that the court will issue temporary measures to protect civilians in Gaza.

He also argued that any provisional measures, no matter how symbolic, would be a blow to Israel and its supporters.

Schabas is a Professor of International Law at Middlesex University in London and a distinguished visiting faculty member at Sciences Po in Paris. He is also an Officer of the Order of Canada and a member of the Royal Irish Academy.  His writings have been cited in judgments, decisions and opinions of the International Court of Justice, the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone.


Why did South Africa file a lawsuit at the ICJ accusing Israel of committing genocide against the Palestinians in Gaza?

South Africa is entitled to sue any country that has violated the Genocide Convention because the Genocide Convention allows any country, even if it is not itself a victim of genocide, to challenge another country that claims it is committing genocide.  So, South Africa has taken on this responsibility and is charging Israel with genocide in violation of the 1948 Genocide Convention at the International Court of Justice.

The preliminary part of the case is taking place right now, and it involves a request from South Africa for what are called provisional measures, which is an order from the court directed at Israel and waiting for the final decision on genocide which is not likely to take place for four or five years. So, these are temporary measures to protect Palestinians while the court is considering the case.


Israel denies that its military’s actions in Gaza constitute genocide. It also denies the intention to commit genocide. Do you think its defence was convincing during the court hearings?

No, not really. I don’t think they did a very good job of it. The first thing to bear in mind is that this is not really what the legal debate is before the court at present. The debate about whether Israel has the intent to commit genocide is to be addressed some years from now when the case is debated and when the whole case comes to court.

So, all that South Africa had to establish this week was whether what is called a plausible case that Israel was committing genocide has been established. And to do that South Africa demonstrated quite adequately the case against Israel and that there’s a plausible argument that Israel has genocidal intent. Israel’s argument is saying no, we have no intent to commit genocide. We’re just trying to destroy Hamas. The difficulty really with Israel’s case is not what it says but what it does because if the evidence points to the fact that Israel is actually not really trying to destroy Hamas but rather trying to destroy the people of Palestine, then the case will be made out that genocide is taking place.

But this is all premature because South Africa has not yet set out its case either with all of its evidence as that will come much later this year, probably within about six to eight months. South Africa will file all of its evidence, and then we’ll see what Israel has to answer to that claim.


Based on previous legal precedents, such as in Bosnia and Rwanda, what do you think the ruling of the court will be, and what measures might Israel be asked to take to prevent the crime of genocide against the Palestinians in Gaza?

I think South Africa will succeed in obtaining an order from the court against Israel based on the conduct of the ICJ in earlier cases on this issue. I think that when it gets to what we call the merits of the case several years from now, the debate is going to be more difficult for South Africa because the subject of genocide and the way the court deals with it is a moving target. It’s difficult to predict what the law will look like and what the world will look like in four or five years because there are constant appeals to the court to adopt an interpretation of genocide that’s not as strict as it has applied in the past in the cases of Bosnia and Croatia, for example.

Only a few months ago, some Western European countries and Canada submitted to the ICJ in the Myanmar case, where they argued that the court should adopt a broader and more flexible interpretation of the definition of genocide. I think that their lawyers probably regret doing that now because they have, in effect, handed a gift to South Africa. But of course, we have to wait and see how the judges will react to this. The court is constantly changing, judges are leaving, new judges are being elected to the court, and it’s quite possible that the court will adopt a more flexible approach to genocide, and this will be favourable to South Africa’s case.  But if it stays with its strict interpretation of genocide, this will be more favourable to Israel.


The definitions of genocide, war crimes, and crimes against humanity go back to decades-old international treaties. Do you think there is a need to reconsider some aspects of these definitions in line with the world today?

Yes, but I would say that already that has happened. Already there have been a lot of redefinitions of international crimes. We have to realise that when the Genocide Convention was adopted in 1948, this was the first time there was a treaty that recognised an international crime of this nature. The countries at the time were extremely nervous about what they were doing because they were afraid that they would be held liable for it. And so, they define the crime quite narrowly.

In the 1990s, there was a great expansion in the approach to defining international crimes, but it was mainly focused on the category of crimes against humanity and war crimes. If the court had taken a strict approach in the past to international crimes, most of the crimes committed in the Former Yugoslavia would not have been punishable. So, there was a great development in the 1990s. But it didn’t happen with genocide; it happened with crimes against humanity and war crimes. So, genocide has been left without such development.

The court has been rather faithful to the strict narrow approach to genocide of 1948, and there are calls to change that, and maybe the court will follow.


Do you support revisiting the genocide definition?

I’m a scholar, and I study these things. I’m not fighting for one cause or the other. I am just trying to understand what the law is and how it’s developing, so I can anticipate the possibility that the law will develop but I can’t be sure this is what will happen.


But do you think that the definition of genocide needs to be revisited because it is narrow and restrictive and thus may prevent the trials of perpetrators of crimes committed in Myanmar and Darfur in Sudan, for example, from being punished for committing genocide?

I don’t feel it needs to be revisited because the violations are covered by crimes against humanity, but we need a better treaty for crimes against humanity. The acts that don’t fall under the definition of genocide because it’s a strict definition are comprised within the notion of crimes against humanity. But the problem with crimes against humanity is that we do not have a treaty for crimes against humanity like we have with genocide. So, one could say we should either expand the definition of genocide or we should have a new treaty dealing with crimes against humanity.

There is a treaty calling for crimes against humanity that has been proposed. It’s before the UN General Assembly, but it hasn’t yet been adopted. So that would be a very desirable outcome as well. But until that happens, the only available tool is the Genocide Convention at the ICJ, which is why countries take cases there under the Genocide Convention. They have no other vehicle to take a case, whether we’re talking about Bosnia and Herzegovina or whether we’re talking about Gaza or whether we’re talking about Myanmar.


If the International Court of Justice decides to oblige Israel to take provisional measures to protect civilians in Gaza and stop possible genocide, do you think this might open the door to calls for the International Criminal Court (ICC) to consider cases against Israeli political and military officials?

Well, the door at the International Criminal Court is in theory already open, and it has an investigation underway. It has limited resources to do it because the wealthy countries are not giving up the money which is needed to carry out a proper investigation. But it just needs the prosecutor at the International Criminal Court (Karim Khan, the British lawyer who has served as Prosecutor of the ICC since 2021) to be more engaged with the issue of Palestine.

He was very hasty to charge the president of Russia with war crimes at the ICC, and he seems to be moving more slowly when it comes to Palestine. I don’t know whether an order from the ICJ in The Hague will increase the pressure on him or not, but it will certainly be understood around the world as a condemnation of Israel. And if there is a provisional order from the court in The Hague, which I expect there will be, against Israel, this will increase the pressure on the prosecutor to be more active in the situation in Palestine.


What is the list of preventive measures that the ICJ could request from Israel until a legal decision is made on the merits of genocide accusations in Gaza?

South Africa has a list of requests of the court, but the court could also go outside that list and could create some other type of order against Israel. And there’s a range of possibilities for the court depending on how aggressive it wants to be in dealing with Israel.

At the most extreme, it could order Israel to stop all military activity in the Gaza Strip. This would be very desirable; it would be a great achievement if the court were to do that. Israel will of course argue that it needs to defend itself and so on, but Israel has shown itself to be incapable of distinguishing between civilians and combatants. So, they have to stop firing their guns. The question is, will the court order this? I don’t know. We’ll have to wait and see.

There are also less demanding orders that it could make. For example, it could order that they allow uninterrupted and undisturbed access to food, medicine, drinking water, and other necessities of life to the people of Palestine. It could order that they take measures within Israel to deal with these politicians and public figures and journalists who make these outrageous statements, basically hate speech directed against the Palestinian people. And they could make a largely symbolic order against Israel ordering it not to commit genocide.

This is pretty much what the ICJ did in Myanmar. It ordered Myanmar not to commit genocide. This was perceived around the world as being a defeat for Myanmar. But Myanmar’s answer was, well, we’re not committing genocide. So yes, countries can live with such an order. And that might be the case with Israel. But even a symbolic order like that would be powerful and would be a blow to Israel, and if it helps protect some of the people in Palestine that would be desirable, a good thing and a victory for South Africa and the Palestinian people, but how the court will rule on that range of options, it is difficult to say right now.


Is Israel in a state of denial about its crimes because in the eyes of the majority of Israelis there is only one victim of the crime of genocide, and that victim is the Jews during World War II?

Yes, that is probably right. Although, to me, the suffering of the Jewish people who’ve suffered so much historically, including in the 20th century, should make them even more sensitive to the suffering of other people. And I think this was once more true of not just Jews in Israel but of Jews elsewhere in the world, who tended to be more left-wing and were more sensitive and sympathetic with people who were the victims of persecution.

But something about the creation of the State of Israel and militarisation of the State of Israel has created a very large and terrible indifference within Israel. And we see this now in the fact that the left wing is so isolated and reduced in Israel, and this fanatical right wing seems to be driving policies in Israel right now.


Do you think that if the ICJ issued a provisional order against Israel, this would be the beginning of the end of “Israeli exceptionalism” regarding international laws and their application to it?

I think that the ruling of the court with even the provisional measures stage will make it much harder for Israel to claim that it stands outside international law or that it’s being persecuted by the UN institutions because this is not the UN Human Rights Council that’s going to make the ruling. It’s not a political decision; it’s going to be a legal ruling by a court that the rest of the world respects.

Even good friends of Israel, countries that have been very supportive of it and still are, will not be comfortable if Israel is defiant and rejects the court. Israeli Prime Minister Benjamin Netanyahu said this week that the court would not stop Israel from doing what it’s going to do. This is terrible, this is gangster talk, and this is what criminals do. And even friends of Israel are going to have difficulty remaining friends.

* A version of this article appears in print in the 18 January, 2024 edition of Al-Ahram Weekly

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