Is Israel Committing Genocide in Gaza?

Last week, representatives from around the world met at The Hague to hear a singular court case. On the world stage of the United Nations, South Africa accused Israel of committing genocide in its ongoing war in Gaza. Both countries were called in to make their cases before the judges of the International Court of Justice.

“The world is watching Israel, it’s watching Gaza, and it’s watching the International Court of Justice,” Adil Haque said. Haque is a professor of international law at Rutgers University. He studies the rules and regulations surrounding war and armed conflict. “This is the first time in my lifetime that there’s been so much public attention to the role of international law in potentially resolving disputes as a method of last resort.”

This week, the war in Gaza hit the 100-day mark. Months after the first headlines, the bodies continue to pile up—more than 24,000 according to the latest estimate. Now, it’s up to the U.N. to decide if that level of mass death amounts to a genocide.

Haque calls this court case a “method of last resort” because the U.N. has already tried to get Israel to call off its campaign. The Security Council voted twice to order a humanitarian cease-fire, but the United States vetoed the measure each time.

“The International Court of Justice is the last institution in the international legal system that could potentially issue a legally binding order to Israel to suspend its military operations or accept a cease-fire before it is too late,” said Haque. Even if the ICJ finds that Israel is committing genocide in Gaza, it’s not a guarantee that the war would end. What a ruling like that would do is call on the international community to step in. “This would be tantamount to finding that every state in the world has a legal obligation to take action to try to bring this war to an end.”

On Wednesday’s episode of What Next, we discussed the question: What makes a war … a genocide? Our conversation has been condensed and edited for clarity.

Mary C. Curtis: To some observers, it might seem curious that South Africa, of all countries, is the one bringing the case against Israel. Could you give a little context there?

Adil Haque: The connection between South Africa and Israel and the Palestinians is a complex one that goes back many decades. Israel actually supported the apartheid government in South Africa. And as a result, Black South Africans and Palestinians have for a long time felt that their struggles for self-determination, for freedom, for dignity are intertwined.

And Nelson Mandela also sought some solidarity with Yasser Arafat, the late leader of the Palestinians.

Absolutely. It was an era in which there were struggles against colonialism, against occupation, against apartheid. And these were viewed, by those seeking national liberation, as different sides of the same struggle for self-determination and against its forcible denial. And so for that reason, it is not too surprising that South Africa would be the state of all the states in the world to bring this case.

South Africa is alleging that Israel is currently committing genocide in Gaza. That’s a really weighty accusation. I want to be specific about what that means. How does international law define genocide? And what precisely is South Africa accusing Israel of?

A genocide is defined in two parts. There are the constituent acts of genocide, which include killing members of a group, causing grave physical or mental harm to members of a group, or creating conditions of life calculated to destroy the group. The second element is what distinguishes genocide from war crimes and even crimes against humanity, and this is the specific intent to destroy a national, racial, religious, or ethnic group. This is what is known as the specific intent requirement of genocide. And it is extremely narrow and extremely difficult to prove.

So, the hearings begin. South Africa has the floor. How did they use their time?

South Africa does a few things. It opens by contextualizing the dispute, framing the dispute in a way that is favorable to the narrative that they want to tell. That narrative is one of prolonged occupation, oppression, dehumanization.

The second thing they did was they showed the pattern of conduct. There are three or four core components of this pattern of conduct. The first is the complete siege that Israel imposed on Gaza on Oct. 9, two days into the war. The second component is the evacuation order that forcibly displaced around a million Gazans from the north to the south, because that really created the conditions of overcrowding—poor sanitation, no shelter—that is part of the reason why so many Palestinians now face famine and disease. And the last component is the bombing campaign, which not only killed over 20,000 civilians but left most of Gaza uninhabitable and in particular destroyed the medical and health care infrastructure of Gaza.

And at the very end of South Africa’s presentation on this pattern of conduct, they imply that if you know that a course of action will result in catastrophic harm and you go ahead and do it anyway, it must be plausible to infer that this is something you intended to do.

The South African team also took it a step further, pointing out that we don’t need to “infer” Israel’s genocidal intent—you can hear it loud and clear in speeches from Israeli leaders.

They emphasize that the extraordinary thing about this case is this string of statements from Israeli officials, military leaders, members of parliament that indicate a kind of dehumanizing and eliminationist rhetoric toward Gazans. These statements are extraordinary. We don’t expect to see anything like this in warfare and certainly not this volume of statements along these lines.

And it looks like from the actions of Israeli soldiers, they’re saying that they got the message.

That’s right. And this is a key part of South Africa’s case, because Israel argued that these statements, while troubling, were taken out of context. They were ambiguous. But South Africa showed videos to the court of soldiers on the ground in Gaza, repeating, chanting, singing these statements of dehumanization.

States have both a duty not to engage in genocide, but also a duty to prevent genocide. And if Israeli soldiers on the ground are acting with genocidal intent, those actions are attributable to Israel, and Israel is responsible.

During that hearing last week, South African representatives also brought up other countries and conflicts where the ICJ has found evidence of genocide. What was their intention when they did that?

South Africa wants to convinced the court that, Look, we’re not asking you to do anything extraordinary or novel. We’re just asking you to apply the legal framework that you’ve applied in other cases.

And to that legal argument, they also made a very powerful moral argument, because the South African representatives argued that to fail to apply the same legal framework here would be, in effect, to devalue Palestinian lives relative to the lives of members of other groups where the court has taken action in the past.

What kind of outcome is South Africa seeking here?

They’re essentially asking for three types of what are called provisional measures. These are basically interim orders. One group of these measures involves things like preserving evidence and cooperating with U.N. and other fact finders. Very straightforward.

The second group of requests has to do with humanitarian aid, basically ordering Israel to allow more humanitarian aid into Gaza.

The big request that South Africa is making is that the court order Israel to immediately suspend military operations in Gaza, and this request is based on an identical order that the court issued in the Ukraine vs. Russia case, ordering Russia to immediately suspend its military operations in Ukraine. The whole world is waiting with bated breath to see what the court will do.

On Friday morning, the second day of the hearings, it’s the Israelis’ turn to make their case. How do they start their arguments?

Israel begins by alluding to the history of the Jewish people with respect to the crime of genocide. The fact that many Israelis either are Holocaust survivors or are the children or grandchildren of Holocaust survivors.

The second thing that the Israeli representative opens by saying is that the real genocide in this case was committed by Hamas on Oct. 7, that the brutality of Hamas’ attack—the killing of Israeli civilians, taking hostages, committing rape and sexual assault, torture—that these indicate much more strongly genocidal intent. Essentially, they killed as many Israelis as they could. And that is the real genocide here.

And they play video, audio. They really want to give the court a visceral sense of what went on.

Absolutely. And again, this goes back to framing your case in a way that supports the narrative that you want to present to the court. South Africa said that the context of this case is occupation. Israel wants to say, “No, the context of this case is Oct. 7. Everything we have done since that day was a response to that day.” And that is meant to support their argument that their intent is only to defeat Hamas and not to destroy the Palestinians of Gaza.

Israel also invokes self-defense. What’s the argument they’re trying to make here?

There are essentially two arguments. One is simply a factual argument. They are arguing that their true intention is to defeat Hamas and not to destroy the Palestinians of Gaza. The second argument is that even if the court finds plausible South Africa’s claims, the court should not order Israel to immediately suspend its military operations in Gaza because doing so would impair Israel’s right of self-defense, that Hamas is still firing rockets into Israel, they still hold over 100 hostages in captivity, and it would be unfair and disproportionate to demand that Israel stop fighting when the court does not have the jurisdiction to order Hamas to stop fighting.

That’s because the court only has jurisdiction over states. It cannot tell nonstate actors what to do, so it cannot demand that Hamas observe a cease-fire. And South Africans say, “Well, this is just an unfortunate limitation of the court’s jurisdiction, but the court should do what it can and order Israel to immediately suspend military operations,” while Israel is saying, “No, if you can’t issue a balanced order, then you shouldn’t issue any order at all.”

It seems like Israel’s case boils down to this is war, people are going to die, but that doesn’t mean that there’s genocide going on. Is that how you heard it?

Absolutely. Israel made the argument that intense urban warfare against a nonstate adversary that is deeply embedded in civilian population and densely populated cities and towns will always involve a shocking level of death and destruction. But that alone does not indicate genocidal intent. They want to say that far from genocide, Israel is lawfully exercising its right of self-defense in full compliance with international humanitarian law, as implausible as that might seem to many.

So, both sides have had the chance to make their cases. Now what happens? Do they take a vote? What is the timeline?

The judges will retire to decide the first question of whether South Africa’s claims are plausible and then decide which of these requested provisional measures the court is willing to order. That could take two weeks; it could take two months. The expectation of most international lawyers is that the court will act fairly quickly because of the urgency of the humanitarian crisis.

But a verdict on the question of genocide could take longer. Right?

Absolutely. International Court of Justice cases can drag on for years. There are many procedural steps between now and a final judgment. Right now, South Africa’s overwhelming priority is to get these provisional measures in place, particularly one ordering Israel to suspend military operations.

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Here’s the elephant in the room: The ICJ is tasked with coming to a decision in this case. But if they do decide that it’s possible genocide is being committed in Gaza, do they have the power to punish Israel or even enforce a decision?

Provisional measures are legally binding. So, if Israel defies the court, it will be violating international law on that basis alone, and should the case proceed, the court could hold Israel responsible for violating these provisional measurements. All of that does depend, however, on Israel continuing to participate in the proceedings, continuing to defend itself even if it defies the court’s orders, and ultimately deciding whether or not to issue whatever compensation, reparation, or satisfaction the court orders them to produce.

But even if they send measures like sanctions to the Security Council, isn’t it likely the U.S. or another ally would veto them?

Absolutely. The United States has shown very consistently that it is supporting Israel’s military campaign, no matter what.

So, as you said, it’s likely going to be a long time before the ICJ reaches any final decision about whether Israel has committed genocide in Gaza. But just speculate with me for a bit: What kind of impact could a decision like that have?

The impact would be tremendous, because it would be an example of the court finding a very powerful state, a nuclear weapon state, responsible for what many perceive to be the most serious crime under international law. That said, there is a concern that the focus on genocide could distract both the public and others from other violations of international law. And that would be a mistake.

Genocide is a very serious crime. But so is the use of starvation as a method of warfare, so is forcible displacement of a population. There are other international crimes that are potentially at play here other than genocide. And it’s very important that we not lose sight of those and focus exclusively on this very narrowly defined crime of genocide.