There is an understandable and widespread desire internationally to hold Israel to account before an international court for its disproportionate use of force and reckless disregard of civilians in Gaza – war crimes to many. But, as South Africa has found in its genocide case against Israel, the avenues for such litigation are frustratingly limited.
Unable to sue in the International Criminal Court, which can prosecute individuals for war crimes but which Israel has not signed up to, the South Africans were forced to opt for the adjudicator of interstate disputes, the International Court of Justice (ICJ), whose remit covers territorial disputes but also, specifically, genocidal war crimes. By signing up to the Genocide Convention, Israel accepted the ICJ’s jurisdiction and, notionally anyway, its mandatory rulings.
Crucially, here the plaintiff must cross a higher bar and prove not only war crimes but also the “intent” to eradicate a whole or part of a people – specifically that Israel’s war is a deliberate attack and attempt to wipe out not just Hamas but the whole Palestinian people.
If Ireland – with the intention principally to restrain Israel’s disproportionate and reckless actions in Gaza – wishes to sign up to support the South African case, which was found “plausible” in the court’s initial ruling last week, it has no choice but also to subscribe to the characterisation of Israeli intent as genocidal. Although sympathetic to the primary South African purpose, that may well have caused the Government and its lawyers pause for reflection.
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Ireland may yet decide to intervene – Jordan, Spain, Slovenia and Belgium are expected to follow suit – as it did with 32 other states in Ukraine v Russia (the ICJ order to Russia to desist was ignored, just as any order against Israel is likely to be).
Shortly after Israel’s Gaza attack, prime minister Binyamin Netanyahu approvingly invoked as justification the bloody biblical story of the rival Amalekites. To most Jews the story is metaphorical. To far-right religious literalists who dominate his coalition, however, it is repeated as a holy imperative, the basis of a religiously inspired crusade against not just Hamas but all Palestinians.
In the Book of Samuel, God commands King Saul to kill every person in Amalek. “This is what the Lord Almighty says,” prophet Samuel tells Saul. “‘I will punish the Amalekites for what they did to Israel when they waylaid them as they came up from Egypt. Now go, attack the Amalekites and totally destroy all that belongs to them. Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys.’”
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Saul is reproached for not completing the task that Netanyahu applauds and is, as South Africa’s lawyers argue to the ICJ of the PM’s pronouncements and those of other ministers – one characterising Palestinians as “subhuman animals” – nothing less than an incitement to genocide. Israel’s defence is to suggest the words of individual politicians cannot be taken as representing government policy. And it has submitted evidence from Cabinet papers of its “humanitarian” determination to minimise casualties and supply aid to beleaguered Gazans.
A sceptical court required Israel to show that it is nevertheless complying with the Genocide Convention requirement to prosecute those who incite genocide.
Instead of ordering the ceasefire requested by South Africa, the ICJ confined itself to ordering Israel to not to take measures prohibited under the Genocide Convention. That somewhat unspecific order was disappointing, not least because Israel was able to insist – however implausibly – that it was already complying with international law and the order did not add to its obligations.
Under international humanitarian law governing the use of force during armed conflicts, as dissenting judge Julia Sebutinde pointed out, there is always a duty during war to prevent the killing of civilians and to allow for the provision of humanitarian assistance. The ICJ order was unnecessary and the court was the wrong forum for the case, she argued, also rejecting the contention that there was evidence of intent.
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The ICJ finding of the plausibility of the intent claim – not yet of the fact – is a big setback, however, to Israel’s defence and its repeated illogical claim that the case is an “obscenity” as the victims of the first Holocaust are incapable of repeating it.
In considering the substantive case over the next two years the court will also have to test the argument that the “intention” dimension of genocide under law includes actions that the actors must reasonably know will have genocidal consequences, even if their claimed purpose is something else.
The characterisation of Israel’s campaign as “genocidal” is ultimately, however, political as much as legal, part of a drive to isolate and constrain it internationally. That drive will find some sustenance in the ICJ case, which Ireland should support.