[Israeli human rights attorney Michael Sfard outlines what could
play out as the world’s top court decides if and how to intervene in
Israel’s war on Gaza. ]
[[link removed]]

WILL THE ICJ FIND ISRAEL GUILTY OF GENOCIDE?  
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Meron Rapoport
January 11, 2024
972 Magazine
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_ Israeli human rights attorney Michael Sfard outlines what could
play out as the world’s top court decides if and how to intervene in
Israel’s war on Gaza. _

Palestinians wait to receive the bodies of their relatives who were
killed in an Israeli airstrike, at Al-Najjar Hospital, southern Gaza
Strip, December 7, 2023, Abed Rahim Khatib/Flash90

 

The International Court of Justice (ICJ) today began a landmark
hearing to determine whether Israel’s devastating war on the Gaza
Strip amounts to the crime of genocide. While the deliberations on
that question could take years, South Africa, which filed the lawsuit,
is aiming for the ICJ to issue several interim orders, including
requiring Israel to immediately suspend its military operation; a
ruling on these provisional measures could be issued within weeks.
Whether or not Israel would obey is another matter.

In an 84-page document
[[link removed]] submitted
ahead of the hearing, South Africa alleges that Israel has violated
the 1948 Genocide Convention — to which both states are signatories
— because its current actions “are intended to bring about the
destruction of a substantial part” of the Palestinian population in
Gaza. At the time of the hearing’s opening, Israel is reported
[[link removed]] to
have killed over 23,350 Palestinians and forcibly displaced 85 percent
of the Strip’s population over the past three months of hostilities.
The tightening of the siege since the Hamas-led attacks
[[link removed]] of
October 7 has also resulted in conditions of severe starvation and the
growing risk of mass death
[[link removed]] from
disease.

In a move that bucks its longstanding proclivity for boycotting
hearings at international courts, Israel has chosen to assemble a
legal team to defend itself. Two decades ago, Israel refused to
participate in an ICJ hearing concerning the legality of the
separation barrier it had built in the occupied West Bank, and has
likewise snubbed more recent proceedings regarding the legality of the
occupation. Israel has also boycotted hearings into its conduct at the
International Criminal Court (ICC), a separate entity from the ICJ
which is located just across the street in The Hague.

Michael Sfard, one of Israel’s leading human rights attorneys who
deals extensively with the state’s violations in the occupied
territories, is very familiar with this arena. Like many lawyers, he
is in no hurry to wager on the outcome. That said, in an interview in
his office earlier this week, he told +972 and Local Call that South
Africa can certainly reach the threshold of proof required at this
stage for an interim order instructing Israel to stop the fighting in
Gaza. An order could also be issued requiring that Israel report to
the Court on how it is acting to prevent genocide, and how it is
dealing with the incitement to genocide emanating from its own
political leaders. 

[Israeli human rights lawyer and Yesh Din legal counsel Michael Sfard.
(Oren Ziv)]
[[link removed]]
Israeli human rights lawyer and Yesh Din legal counsel Michael Sfard.
(Oren Ziv)
Israeli human rights lawyer Michael Sfard. (Oren Ziv)

While noting that the ICJ is in many respects a “conservative
tribunal,” Sfard adds that it nonetheless represents the entire
world — the majority of which is non-Western. As such, it has
historically had empathy for weak and oppressed peoples, and was
instrumental in the struggle to end apartheid in South Africa. Now, in
solidarity with Palestinians, South Africa leads the charge against
Israel.

The following conversation has been edited for length and clarity.

SET THE SCENE FOR US: WHAT IS THE ICJ, AND WHY IS THE HEARING TAKING
PLACE THERE?

The 1945 UN Charter — signed by all UN members, including Israel —
affirms that the ICJ is the UN’s supreme legal organ. The
Constitution establishes two powers for the Court: issuing advisory
opinions, and ruling in cases between states. The Court’s verdicts
are binding on the states that have signed the UN Constitution. A
state can agree in an ad hoc manner that a particular dispute will be
litigated by the ICJ, or invoke signed treaties containing a clause
that establishes ICJ jurisdiction over disputes relating to those
treaties. 

Israel has always had reservations about the jurisdiction clause, and
has refrained from agreeing to ICJ jurisdiction in all the hundreds of
treaties it has signed, except one: the Genocide Convention. Article 9
of the Convention stipulated that if disagreements arise between the
members over the Convention’s authority or interpretation, the ICJ
is the place to hear them. 

ICJ decrees are enforced by the UN Security Council. Chapters 6 and 7
of the UN Charter allow for a range of sanctions against countries
that violate the Court’s ruling, such as economic sanctions, arms
embargoes, and military intervention. The latter is rare but it has
happened, for example in the first Gulf War.

WHY DID ISRAEL SIGN UP TO ICJ JURISDICTION IN THE GENOCIDE CONVENTION?

I’m not a legal historian; I can only guess. Israel was one of the
initiators of the treaty, and historically one can understand why
Israel would have pushed for such a treaty in the late 1940s and early
1950s. Secondly, I think that back then, the popular Israeli notion
that we do not let gentiles judge us had not yet developed. We are
talking about an era in which the international system had recently
decided to establish a Jewish state. Maybe there was a little more
trust in that system back then.

WHAT CONSTITUTES A VIOLATION OF THE CONVENTION?

The background to the Convention is World War II, and especially the
Holocaust of the Jewish people. Contrary to what many people think,
the Nazis were not tried for genocide. The crime of genocide did not
exist in the “London Agreement,” which is the charter of the
Nuremberg Military Tribunal. They were tried instead for the crime of
extermination. But after Nuremberg, the argument arose that the crime
of extermination was not enough, and that it did not grasp the
peculiarity of mass extermination designed to wipe out a human group.

[The judging panel at the International Court of Justice for a hearing
to issue an advisory opinion on whether the Kosovan unilateral
declaration of independence was in accordance with international law,
The Hague, December 10, 2009. (Lybil Ber/CC BY-SA 4.0)]
[[link removed]]
The judging panel at the International Court of Justice for a hearing
to issue an advisory opinion on whether the Kosovan unilateral
declaration of independence was in accordance with international law,
The Hague, December 10, 2009. (Lybil Ber/CC BY-SA 4.0)
The judging panel at the International Court of Justice for a hearing
to issue an advisory opinion on whether the Kosovan unilateral
declaration of independence was in accordance with international law,
The Hague, December 10, 2009. (Lybil Ber/CC BY-SA 4.0)

This was a fascinating debate
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two Jewish jurists, both Holocaust survivors from Lviv in what is
today Ukraine: Raphael Lemkin, who coined the term “genocide,” and
Hersch Lauterpacht, who coined the term “crime against humanity.”
Their disagreement revolved around whether murdering a million people,
because they belong to a certain group and with the aim of eradicating
that group, is worse than murdering a million people without this
specific intention.

Lemkin’s interpretation was not expressed in Nuremberg, but later
the UN decided to designate genocide as a special category in and of
itself, often calling it “the crime of crimes.” It is defined as
an act of extermination, or creating conditions that will annihilate a
particular group with the intention of eradicating that group or even
a distinct part of it.

The Convention, which was integrated
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in 1950, states that a soldier or civilian who kills a person, even
one, while aware that he is part of a system aimed at annihilation, is
guilty of the crime of genocide. In Israeli law, the punishment for
this is the death penalty. This also applies to those who conspire to
commit genocide, those who incite genocide, and those who attempt to
participate in genocide.

WHAT IS SOUTH AFRICA BASING ITS LAWSUIT ON?

South Africa bases its accusation on two elements. One is Israel’s
conduct. It cites a great deal of statistics about the indiscriminate,
disproportionate attacks on civilian infrastructure, as well as about
starvation, the huge number of casualties, and the humanitarian
catastrophe in the Strip — horrifying statistics that the Israeli
public is barely exposed to, because the mainstream media here does
not bring them to us.

The second and more difficult element to prove is intent. South Africa
is trying to prove the intent through nine dense pages of references
to quotes by senior Israeli officials, from the president to the prime
minister, government ministers, Knesset members, generals, and
military personnel. I counted more than 60 quotes there — quotes
about eradicating Gaza, flattening it, dropping an atomic bomb on it,
and all the things we’ve gotten used to hearing in recent months.

[Palestinians bury bodies in a mass grave in Khan Younis, southern
Gaza Strip, November 22, 2023. (Atia Mohammed/Flash90)]
[[link removed]]
Palestinians bury bodies in a mass grave in Khan Younis, southern Gaza
Strip, November 22, 2023. (Atia Mohammed/Flash90)
Palestinians bury bodies in a mass grave in Khan Younis, southern Gaza
Strip, November 22, 2023. (Atia Mohammed/Flash90)

South Africa’s case does not rely only on the fact that some Israel
leaders have made genocidal statements. It further charges that Israel
has done nothing in response to these statements: it hasn’t
condemned the statements, it hasn’t dismissed from office the people
who expressed them, it hasn’t opened disciplinary proceedings
against them, and it certainly hasn’t opened criminal
investigations. This, as far as South Africa is concerned, is a very
strong argument.

Even if we haven’t heard the IDF Chief of Staff or the General of
the Southern Command say these things, and we don’t have an
operational order that says, “Go and destroy Gaza,” the very fact
that these statements have been made by senior Israeli officials
without sanction or condemnation sufficiently expresses Israel’s
intention.

SOUTH AFRICA ALSO PULLED A LITTLE LEGAL STUNT TO GET HERE, CORRECT?

Yes. The jurisdiction of the Court is determined when a dispute arises
between the parties over the interpretation or application of the
Convention. South Africa sent several letters to the Israeli
government saying, “You are committing genocide.” Israel
responded, “No we aren’t.” So South Africa said, “Okay, we
have a dispute over the interpretation of the Convention.” That’s
how it got the authority.

WHAT CAN WE LEARN FROM SIMILAR ICJ CASES IN THE PAST, SUCH AS THOSE
REGARDING GENOCIDES IN BOSNIA AND MYANMAR?

First of all, we know from these cases that the burden of proof on
South Africa is significantly lower for obtaining an interim order
than for ultimately proving that Israel is committing genocide. We
also know that this case will continue for years: the Bosnia case took
14 years; Gambia v. Myanmar is still ongoing. But the procedure for an
interim order is fast.

Gambia filed its case against Myanmar on behalf of the Organization of
Islamic States. It asked for an interim order stating that Myanmar
must cease its military operations [against the Rohingya people]. The
Court ruled that at this stage of the hearings, it did not need to
determine whether the crime of genocide had been committed. What it
needs to decide is whether, without an interim order, there is a real
danger that the prohibitions set out in the Genocide Convention will
be violated.

[More than 10,000 people demonstrate in solidarity with Palestinian
people and calling for an immediate end to the Israeli bombardments on
the Gaza Strip, Paris, October 22, 2023. (Anne Paq/Activestills)]
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More than 10,000 people demonstrate in solidarity with Palestinian
people and calling for an immediate end to the Israeli bombardments on
the Gaza Strip, Paris, October 22, 2023. (Anne Paq/Activestills)
More than 10,000 people demonstrate in solidarity with Palestinian
people and calling for an immediate end to the Israeli bombardments on
the Gaza Strip, Paris, October 22, 2023. (Anne Paq/Activestills)

An interesting interim order was issued in that case, which I think
has a good chance of being issued to Israel as well — not in the
context of military activity, but of incitement. The Court’s order
also required Myanmar to take enforcement actions and submit reports
to the ICJ and Gambia on what it was doing to prevent genocide. As for
the cessation of Myanmar’s military activity, this matter went to
the Security Council, where both Russia and China threatened vetoes,
but Western countries imposed sanctions and a military embargo anyway.

So even if South Africa fails to make the Court issue an interim order
to stop Israel’s military activity, it could be that in the context
of incitement — which enjoys full immunity in Israel — the Court
will say that Israel needs to do something.

WHAT CLAIMS CAN WE EXPECT TO HEAR FROM ISRAEL’S LEGAL DEFENSE?

I don’t think Israel can dispute the facts [regarding its conduct in
Gaza]. On the margins, it might say, “We didn’t destroy 10,000
buildings, only 9,700.” The main arena of the legal battle will be
over the question of intent. For example, the forcible transfer of
over 1 million Palestinians from the northern Gaza Strip to the south
will be presented by Israel, I suspect, as intended to prevent harm to
civilians.

WHEREAS SOUTH AFRICA WILL ARGUE THAT TRANSFER ENDANGERS THEIR LIVES.

If you displace people to an area where there is no food or water,
then you are forcing them to a place where the conditions are such
that they are calculated to cause their death; this, while not
[direct] murder, is still considered genocide.

WILL ISRAEL HAVE TO DISCLOSE ITS RULES OF ENGAGEMENT?

If it is stated in the army’s rules of engagement [which are kept
secret] that you do not shoot someone whose hands are raised — and I
don’t know if it is — then this is important. It would undermine
the thesis that the army went in to eradicate everyone. 

Israel’s stated efforts in allowing humanitarian aid to enter Gaza
— even if it is only lip service — has created what lawyers call a
“paper trail.” But Israel will still have to explain the genocidal
statements made by officials, especially cabinet ministers.

[Smoke rises after Israeli airstrikes in the Gaza Strip, as seen from
the Israeli side of the fence, December 11, 2023. (Chaim
Goldberg/Flash90)]
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Smoke rises after Israeli airstrikes in the Gaza Strip, as seen from
the Israeli side of the fence, December 11, 2023. (Chaim
Goldberg/Flash90)
Smoke rises after Israeli airstrikes in the Gaza Strip, as seen from
the Israeli side of the fence, December 11, 2023. (Chaim
Goldberg/Flash90)

BY SAYING THAT THEY’RE STUPID?

Yes. In general, Israel could say that [certain officials] are stupid
or unimportant — that [Finance Minister] Bezalel Smotrich and
[Heritage Minister] Amichai Eliyahu have no influence over the
military operation in Gaza. Israel will have to make a big deal out of
the very minor rebuke that Netanyahu gave to Eliyahu [after the latter
suggested that Israel could drop a nuclear bomb on Gaza] when he said
that Eliyahu was banned from attending cabinet meetings, but Eliyahu
attended them anyway. Israel will say that Netanyahu publicly
condemned the statement.

WILL ISRAEL REFER TO THE HAMAS-LED ATTACKS OF OCTOBER 7?

Without a doubt. They will frame the entire war through its own
narrative: “This is not a war that we initiated or wanted. On the
contrary, there was an entire humanitarian system vis-à-vis Gaza,
Gazans worked in Israel, and they attacked us, slaughtered us, raped
our women, and then we embarked on a justified defensive war like no
other. Therefore to say that we have some kind of conspiracy to
eradicate the Palestinians is a misunderstanding of the context in
which this military operation took place.”

But even if it is possible to accept the claim that there was no
conspiracy to eradicate the Palestinians prior to October 7, it does
not contradict the fact that October 7 may have produced such a
desire.

WHO IS THERE ON BEHALF OF SOUTH AFRICA?

South Africa sent Dikgang Moseneke
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the country’s former Deputy Chief Justice, to be South Africa’s ad
hoc judge in the hearing. Moseneke, who is black, was an
anti-apartheid activist who sat for 10 years in prison on Robben
Island at a time when Nelson Mandela was also incarcerated there. 

The head of South Africa’s legal team is Professor John Dugard, who
is white, and was also an opponent of the regime. He founded the most
important legal institute that fought against apartheid in the 1970s,
and was the UN Special Rapporteur for the occupied Palestinian
territories in the 2000s — he knows the Israeli occupation very
well. And, in the interest of full disclosure, I’m also very
friendly with Dugard. He recently published an autobiography in which
he stated that during his life he experienced three apartheids: the
first in South Africa, the second in Namibia, and the third in Israel
and the occupied territories. 

[A protest against Israel's war on Gaza, central London, October 28,
2023. (Steve Eason/CC BY-NC 2.0 DEED)]
[[link removed]]
A protest against Israel's war on Gaza, central London, October 28,
2023. (Steve Eason/CC BY-NC 2.0 DEED)
A protest against Israel’s war on Gaza, central London, October 28,
2023. (Steve Eason/CC BY-NC 2.0 DEED)

These two figures arrive at the ICJ with significant moral standing.
So too does South Africa itself: the new South Africa brands itself as
the spearhead of the international community when it comes to respect
for international law. It is perhaps the only country in the world
that has enshrined international law as a constitutional principle. 

WHAT DO YOU MAKE OF ISRAEL SELECTING THE BRITISH BARRISTER MALCOLM
SHAW TO PRESENT ITS DEFENSE, AND FORMER SUPREME COURT PRESIDENT AHARON
BARAK TO BE ITS AD HOC JUDGE ON THE PANEL?

Shaw is a professor of international law, one of the world’s
greatest experts in the field. In the 1980s, he wrote a book that was
very creatively named “International Law,” and was subsequently
reissued six times — I have a copy here in the office. He also has a
lot of experience representing states in international tribunals, a
lot of them to do with border disputes.

Much has already been said about the appointment of Barak. From
Israel’s perspective, it’s a stroke of genius. Barak has a lot of
prestige around the world. Israeli human rights activists like me know
two Baraks: the one inside the Green Line, and the one beyond the
Green Line. It really is a case of Dr. Jekyll and Mr. Hyde
[[link removed]].
Which Barak will turn up at The Hague? It’s a good question.

The fact that Barak is a Holocaust survivor is definitely important.
He brings with him first-hand experience of genocide — it’s not
just something theoretical or legal for him. I think whoever selected
him understood that if there is a chance that any Israeli will be able
to sway or convince the other judges in their internal discussions,
it’s him. It’s his charisma, it’s the prestige that accompanies
his name, and it’s his legal mind.

By the way, those who are saying that he is there “representing
Israel” are shooting themselves in the foot. He is appointed by
Israel, but from that moment on he is supposed to be loyal only to
international law and to his own conscience.

BUT IF HE DOES NOT RULE IN ISRAEL’S FAVOR, HE HAS NOWHERE TO COME
BACK TO…

Correct.

[Palestinians walk on a main road after fleeing from their homes in
Gaza City to the southern part of Gaza, November 10, 2023. (Atia
Mohammed/Flash90)]
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Palestinians walk on a main road after fleeing from their homes in
Gaza City to the southern part of Gaza, November 10, 2023. (Atia
Mohammed/Flash90)
Palestinians walk on a main road after fleeing from their homes in
Gaza City to the southern part of Gaza, November 10, 2023. (Atia
Mohammed/Flash90)

I KNOW LAWYERS DON’T LIKE TO WAGER ON THE RESULTS OF COURT HEARINGS,
BUT IF THE ICJ DOES PRODUCE AN INTERIM ORDER, WHAT WILL THAT MEAN FOR
ISRAEL?

If the Court issues an order, the question is of course whether Israel
will obey it or not. Knowing Israel, I expect that it will not obey
the order, unless it can present the ending of hostilities as the
result of its own independent decision, unrelated to the Court
order. 

There are good reasons for Israel to do this, because disobeying an
ICJ order brings things to the UN Security Council. It’s true that
the United States has a veto there, and therefore a resolution to
impose sanctions on Israel would most likely be blocked. But vetoing
an ICJ order regarding concerns that genocide is taking place would
come at an enormous political price for the U.S. government, both
domestically and internationally. 

The Biden administration wants to portray itself as a government that
sees human rights as one of its pillars. So it is likely that the
United States would only veto such a resolution while imposing a
significant cost on Israel in order to justify doing so, such as
allowing the residents of northern Gaza to return to their homes, or
entering into negotiations over two states — I don’t know.

BUT EVEN IF THE UNITED STATES DOESN’T USE ITS VETO IN THAT SCENARIO,
AN INTERIM ORDER FROM THE ICJ IS LIKELY TO CAUSE ISRAEL SERIOUS
PROBLEMS. 

There is such a thing as an international legal “deep state.”
Jurists and judges listen to what important courts say. And when the
ICJ, also known as the World Court, makes its rulings, national courts
in most of the Western world take note. Therefore, if the ICJ rules
that there is a danger of genocide being committed, I can imagine a
British citizen turning to a British court and demanding that the UK
cease trading arms with Israel. Another implication is that such an
ICJ ruling would likely force the ICC’s chief prosecutor [Karim
Khan] to open an investigation of his own.

[A large billboard thanking US President Joe Biden for his support for
Israel is seen above the Ayalon Highway in Ramat Gan, October 11,
2023. (Avshalom Sassoni/Flash90)]
[[link removed]]
A large billboard thanking US President Joe Biden for his support for
Israel is seen above the Ayalon Highway in Ramat Gan, October 11,
2023. (Avshalom Sassoni/Flash90)
A large billboard thanking US President Joe Biden for his support for
Israel is seen above the Ayalon Highway in Ramat Gan, October 11,
2023. (Avshalom Sassoni/Flash90)

AND WHAT WOULD AN ISRAELI VICTORY IN THE COURT DO?

In the event of a resounding Israeli victory, this will double,
triple, quadruple, quintuple Israel’s hasbara [propaganda] regarding
other accusations which may be easier to prove than genocide. Because
if someone says to Israel, “You are committing the crimes against
humanity of forced transfer and of indiscriminate and disproportionate
bombings,” Israel will say, “This antisemitic blood libel again?
We’ve already proven that the accusations against us are false.”

SO SOUTH AFRICA AND THE PALESTINIANS ARE TAKING A GAMBLE HERE?

It is a gamble. In every legal proceeding — from a lawsuit over a
breach of rental contract to a lawsuit over genocide — there are
always risks. However, I think that a resounding Israeli victory is
very unrealistic, because at least regarding the incitement, Israel
will not have good answers for the Court.

WITHIN WHAT TIME PERIOD IS THE COURT’S DECISION EXPECTED?

There are no set rules, but in the Gambia v. Myanmar case, there was a
decision within a month. It should be remembered that this [Gaza] case
will continue after the hearing on the interim order. Israel will have
to present evidence that will exonerate it from the claim that it is
committing genocide, but in doing so could get into difficulties with
the ICC. For example, it may explain that it bombed a certain place
because it was pursuing a military objective, but it may thereby make
admissions that create a basis for the claim that it used
disproportionate force.

AND ON A PERSONAL NOTE, HOW DO YOU VIEW THE FACT THAT ISRAEL STANDS
ACCUSED OF GENOCIDE?

I come from a family of Holocaust survivors, and the very fact that we
are even talking about this, and that the accusation is not without
grounds, is heartbreaking. My grandfather, the sociologist Zygmunt
Bauman, wrote about the syndrome of victims who aspire to become
victimizers, and why efforts must be made to prevent this. I fear that
we have failed.

_A version of this article was originally published in Hebrew on Local
Call. Read it __here_
[[link removed]]

_Meron Rapoport is an editor at Local Call._

_ABOUT 972 MAGAZINE: OUR TEAM HAS BEEN DEVASTATED BY THE HORRIFIC
EVENTS OF THIS LATEST WAR – THE ATROCITIES COMMITTED BY HAMAS IN
ISRAEL AND THE MASSIVE RETALIATORY ISRAELI ATTACKS ON GAZA. OUR HEARTS
ARE WITH ALL THE PEOPLE AND COMMUNITIES FACING VIOLENCE._

_We are in an extraordinarily dangerous era in Israel-Palestine. The
bloodshed unleashed by these events has reached extreme levels of
brutality and threatens to engulf the entire region. Hamas’
murderous assault in southern Israel has devastated and shocked the
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wreaking destruction on the already besieged strip and killing a
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backed by the army, are seizing the opportunity to escalate their
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_This escalation has a very clear context, one that +972 has spent the
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