Why Israel Is Taking the Genocide Case Seriously
What’s happening at The Hague isn’t political theater.
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South Africa dropped a bombshell on the international community in December, claiming in the International Court of Justice, the United Nations’ highest judicial body, that Israel is committing genocide in Gaza. No doubt Pretoria, a longtime supporter of Palestine and in a deteriorating diplomatic relationship with Israel, had political reasons to bring what most Israelis view as an outrageous claim. But to dismiss the case as political theater would be a mistake.
Israel did not send a team of government attorneys to put up a defense in The Hague, or hire one of the leading members of the ICJ bar, merely because of politics. Rather, Israel understands the stakes: The ICJ’s ruling will influence how states, international organizations, and the public view not only the conflict in Gaza, but also Israel itself, and more broadly, the obligation of states to prevent genocide. The case could even encourage legal action against specific Israelis in courts worldwide.
The “rules-based international order” that the United States claims to defend is one where international courts not only matter, but dispense a kind of real-time justice, enabling the dispassionate language of law to clarify state obligations in a way that the political bodies of the UN cannot.
When the case opened last week, South Africa did not have to demonstrate genocide with conclusive proof, as it will at a later stage in the proceedings, nor did it even have to prove definitively that the ICJ had jurisdiction to hear the case under the 1948 Genocide Convention. Rather, it sought “provisional measures,” a kind of injunctive relief that comes with the much lower burden of proving merely the plausibility of the claim. South Africa wanted the court to find that international law, not merely the votes of states in the General Assembly or Security Council, requires Israel to end its military operation in Gaza.
Relying on the Genocide Convention is clever on South Africa’s part. For the moment, the charge of genocide is more a legal vehicle than the main event: That is, the Genocide Convention provided the ICJ with potential jurisdiction and empowered South Africa to get Israel into a courtroom. The 1949 Geneva Conventions and other treaties governing the laws of war—violations of which are far easier to prove and arguably more relevant to the destructive outcomes in Gaza—do not afford that opportunity.
Thus, by early February, the court will have to make a number of specifically legal findings: Has South Africa made the case that the court likely has jurisdiction to entertain the genocide claim? Has it shown that Israel’s actions and intentions in Gaza may be plausibly characterized as genocidal? Has it shown that Palestinian rights will be irreparably harmed if the court does not act? And would the requested provisional measures serve the purposes that South Africa claims they would? These are questions of international law, in whose careful and even bloodless language the court will surely answer them.
On January 11, I joined several dozen diplomats and guests for the hearing in the Great Hall of Justice in the Peace Palace at The Hague. When the door swung open, the judges filed in according to a decades-old protocol. South Africa’s appointee, Dikgang Moseneke, a respected constitutional-court judge who was held at Robben Island with Nelson Mandela, led a slow procession across the dais. After him followed judges from 16 other countries, including China, the United States, and Russia. Israel’s appointee, Aharon Barak, a Holocaust survivor and the country’s most famous judge, entered last. Below the bench, a narrow central aisle separated the litigants, who showed each other at most a chilly recognition.
That day, South Africa held the floor with three hours of speeches; the following day, Israel responded with three hours of its own. The judges listened and eyed the litigants without emotion, appearing almost ornamental beneath a four-panel stained-glass tableau that depicted international law as a story of civilizational progress.
South Africa’s justice minister spoke early in the proceedings, emphasizing that his government “unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups and the taking of hostages on 7 October 2023.” But the country’s legal team did not characterize Israeli action merely as a response to those atrocities. Instead it painted the Israeli military campaign as part of an “ongoing Nakba of the Palestinian people through Israel’s colonization since 1948,” continuous with decades of apartheid. The lack of acknowledgment of Israeli trauma, or of Hamas’s strategy of embedding within the civilian population of Gaza, was striking, but it likely stemmed at least in part from a legal rationale: South Africa’s team may have calculated that acknowledging Israel’s perceived need to take military action in response to the October 7 attacks would weaken the plausibility of the claim that Israel was engaging in genocidal destruction, as opposed to disproportionate and indiscriminate military action in pursuit of a legitimate goal.
South Africa’s presentation sought to convey, using the language of the law, a “systematic pattern of conduct” by Israel from which “genocidal intent” could be inferred. The enormous number of deaths of Palestinian children; the bombardment with 2,000-pound “dumb” bombs; the displacement of a significant majority of the population of Gaza; the destruction of civilian infrastructure, including schools, water supplies, and hospitals; the months-long failure to get aid to civilians—all of this, South Africa argued, provided a plausible basis for the claim.
The most difficult part of any genocide case is proving not the acts of violence but the specific intent to destroy, in whole or in part, a national, racial, religious, or ethnic group. That intent is the core of the Genocide Convention and what distinguishes it from any other treaty in international law—and gives it its powerful moral resonance. In their effort to establish intent, South Africa’s lawyers linked political statements to behavior on the ground. They quoted Israeli President Isaac Herzog as saying, soon after October 7, “This rhetoric about civilians not aware, not involved, is absolutely not true.” It presented a video of Israeli soldiers dancing and singing, “We know our motto: ‘There are no uninvolved.’” And it showed soldiers celebrating the destruction of apartment blocks and villages. South Africa sought to refute the idea, which Israel later put forward, that statements cannot be equated with government policy. Israel might well later show context that complicates the use of these clips as evidence of genocidal intent. But again, at this opening stage, the bar is low: All South Africa must show is the plausibility of its claim.
The following day’s hearing afforded Israel an opportunity to present a full-throated legal defense of its actions in Gaza—something it had not had occasion to do before the UN Security Council or General Assembly. Israel’s lead lawyer characterized South Africa’s claim as a libel, an effort to transform the Genocide Convention’s “solemn promise of ‘Never again’ to the Jewish people and all peoples” into an “aggressor’s charter,” depriving victims of the ability to defend themselves against terrorist organizations like Hamas. The Israeli team then sought to methodically take apart South Africa’s legal claims, and it analyzed in detail the allegations and ramifications of Hamas’s embedding within the civilian population of Gaza.
This defense may have raised doubts among some judges about the strength of South Africa’s case. Israel insisted that it had warned civilians of imminent attacks and tried to get aid to Palestinians, only to have it stolen by Hamas; these actions, the legal team argued, were not those of a country with genocidal intent. But Israel also advanced a weaker form of argument, legally known as “tu quoque,” which rests on pointing to the hypocrisy of one’s opponent: Was it not Hamas, the Israeli lawyers argued, with its genocidal charter and its repeated promise to commit additional October 7s, that was committing the “crime of crimes”? International law never excuses genocidal acts or the deliberate targeting of civilians (something Israel more than once acknowledged during the proceedings), so this gambit is unlikely to have much legal sway and could even repel some judges.
Six hours of speeches mixed the horror of October 7 and the hundred days of destruction since with the meticulous language of international law. It spotlighted a petitioner whose history of apartheid gave it a special global stature, and a still-traumatized respondent, Israel, whose very national identity and existence are wrapped up in the near-total genocide of European Jewry in the Holocaust. The court’s mien remained inscrutable, but its past jurisprudence offers some guide as to what may happen in the weeks ahead.
Israel did not challenge South Africa’s standing to bring the case, because the court had already ruled in an earlier case that any state that is party to the Genocide Convention may bring a claim against any other. And the court is likely to determine that it does have jurisdiction in this case. It must then decide whether South Africa has proved the plausibility of its claim of Israeli genocidal intent. Only then may the court decide what provisional measures are appropriate. Here is where the consequences of the case are likely to reverberate, both in public opinion and in the actions the court’s decision entails. And if the court gets this case wrong—if it appears to be driven less by law than by some political urgency—it will damage the very future of genocide prevention.
The court is unlikely to accede to South Africa’s request for an order that Israel “immediately suspend its military operations in and against Gaza.” It issued such an order in the very different context of Ukraine’s case against Russia, but there the General Assembly had already found Russia’s invasion to be illegal aggression. Some of the judges will likely find persuasive Israel’s argument that a binding order against it would be inappropriate so long as Hamas—a nonstate actor not subject to this case or the ICJ’s jurisdiction, though its members could be brought before the International Criminal Court, a short bike ride away—continues to hold hostages and fire rockets into Israel.
But the court has the power to be creative, not merely to follow South Africa’s lead. It could elide the difficulty of adjudicating genocidal intent in response to a terrorist atrocity and focus instead on whether Israeli statements at senior levels are inciting soldiers to kill indiscriminately and destroy all that makes Palestinian life in Gaza possible. It could demand that the Israeli government clamp down on incitement and hold those who engage in it accountable, as the Genocide Convention requires. It could urge Israel to give UN human-rights bodies access to investigate in Gaza. It could also demand, in a general way, that Israel take steps to prevent genocidal acts. Conceivably, but highly unlikely, it could decide that South Africa did not meet even the low standards of proof required and decide against any provisional measures at all.
No matter how the case turns out, some will argue that what the court says or does simply doesn’t matter. That would be a misreading of the moment. The court’s pronouncements may not always change state behavior; Russia continues to bomb Ukraine, after all, notwithstanding the court’s condemnation. But the court has an undoubted power to influence the way states perceive their obligations and constraints, shaping diplomatic discourse. A careful, legally grounded decision in South Africa’s favor would add a new kind of legal, not political, pressure on Israel to modify the way it is prosecuting the war and on its allies to condition their support on such changes. An ICJ ruling could shape the law around incitement to genocide, a major issue in need of judicial pronouncement. And the high profile of the case could send a signal to the world about the importance of upholding international legal norms.