Starting today, the International Court of Justice is hearing whether Israel is committing genocide in Gaza. Even though there are many arguments against it, the process itself poses a high risk for Israel.
Since day 1 of the Israeli counterattack in the Gaza Strip, images of wounded and killed children have been circulating around the world: the counterattack on the Hamas terrorists after their massacre on October 7th has since claimed thousands of civilian victims among the Palestinian population. First in the north of Gaza, which the Israeli forces tried to evacuate, but then also in the south of the small strip of land, where many people had fled in accordance with Israeli instructions.
Israel has received criticism from many quarters for the massiveness of its attacks – the heavy rocket attacks in the densely populated area were not proportionate, and the ground offensive that began some time later was even less so. The South African government did not stop at criticism: it sued Israel before the International Court of Justice (ICJ), where the trial begins today in The Hague. The lawsuit could hardly weigh more heavily on the Israelis: Israel must defend itself before the ICJ against the accusation of committing genocide in Gaza – the most serious criminal offense in international law.
Israel is threatened with an order to stop its hostilities
It is estimated that years will pass before the ICJ issues a ruling on South Africa’s lawsuit. However, what is already threatening Israel could be an obligation to stop all hostilities until the end of the process. Given the length of the proceedings, South Africa has asked the court to issue an interim injunction requiring Israel to enter into a unilateral ceasefire. On the grounds that there is a risk of genocide if the war continues. It is difficult to predict whether the court will follow the South African argument, but it will soon become clear. So far, international law experts have seen little reason to accuse Israel of intending to commit genocide in Gaza.
Because genocide is not defined by how many civilian victims a war causes. What matters, however, is the intent behind the attacks. According to international criminal law, genocide occurs with the aim of “destroying, in whole or in part, a national, ethnic, racial or religious group as such.” It’s about wiping out a population or population group.
Such an inhumane objective is usually difficult to prove. Even in the case of the murder of an estimated six million Jews by the Nazis, the written documents on the decided genocide were not clear: at the Wannsee Conference in January 1942, the deportation of all European Jews to extermination camps was meticulously organized and coordinated, but it was recorded in writing in the minutes but that as a plan to “evacuate” the Jews to the East.
The intention to wipe out the population group usually has to be proven through concrete actions – ones that only make sense with this goal. If, for example, civilians repeatedly die in a war without the attacks having a military objective, then the suspicion of genocide is obvious. Likewise, attacks on cultural sites or monuments indicate that a population and its cultural heritage are being wiped out and their identity is being erased.
Abducted children would be a sign of genocide
If the attackers also try to rob the population of their future by killing children, tearing them from their families, abducting them and re-educating them, then this is a very clear sign of genocide. Young women and men can also be injured in such a way that they become infertile or lose their ability to have children. This also suggests that an entire population group is to be destroyed forever.
But is there any evidence that the Israeli state intends to exterminate the Palestinian population? First of all, the attack on the Hamas terrorists holed up in the Gaza Strip is seen by the majority of the international community as a legitimate defensive campaign after their attack on October 7th. But that doesn’t mean that there are no rules for this fight.
Israel has faced massive criticism since its counterattack began in Gaza. First of all, for cutting electricity and water supplies. This affected the entire population and was viewed by many experts as an unacceptable “collective punishment”. In addition, the official number of victims released by the Hamas health authorities is now over 23,000 and is assessed as realistic by local aid organizations. Even if this count does not distinguish between Hamas fighters and civilian victims, the number of dead or injured civilians in Gaza is considered to be significantly too high and has also been clearly criticized internationally by declared supporters of Israel – just this week by German Foreign Minister Annalena Baerbock and by her US counterpart Anthony Blinken.
The Israeli advance does not stop at facilities such as hospitals, schools or mosques, although international law requires that such civilian buildings and the people in them be spared. However, this basic protection only applies as long as the other side does not misuse the clinic or kindergarten for military purposes. For example, if rockets are fired from the roof of a hospital, the building becomes a legitimate military target. Now we have to weigh up how many civilian casualties are “justifiable” in order to destroy the military position.
“90 percent of the victims of modern wars are civilians”
Such counter-calculation of expected military returns and unavoidable expected casualties seems brutal. Isn’t protecting civilian life above all else? Actually: no. International law accepts this brutality of war and it accepts that warring parties want to win. They are not expected to completely avoid civilian casualties, as that would be unrealistic, especially in modern warfare. “90 percent of the victims of modern wars are not soldiers, but civilians,” says US military expert John Spencer in his “Urban Warfare Project Podcast”. Because they are fought among the population, including in the Gaza Strip. International law expects the warring parties to make sufficient efforts to protect the civilian population as best as possible.
Especially in the early stages of the war, the Israeli military repeatedly tried to evacuate the Palestinians living in northern Gaza to the south of the strip using cell phone messages and leaflets – an attempt to keep the number of victims among the civilian population low and thus a practice, that follows the requirements of international law and clearly contradicts the accusation of genocide.
From the beginning, the armed forces also tried to explain their actions and provide information about military strategies and successes. In countless videos since the beginning of the counterstrike, Israeli troops have presented Hamas weapons and ammunition depots they dug up, as well as uncovered tunnel systems. The message was clear: We are concerned here with military objectives. This contradicts the accusation that Israel is fighting with the intention of exterminating the population in Gaza.
The accusation of genocide is repeatedly raised primarily by local aid organizations, including high-ranking UN representatives, although international law experts hardly support it. This suggests that NGOs may be making the mistake of equating an unacceptably high number of civilian casualties in war with genocide.
The court has discretion
The international court is looking at the situation from a legal perspective, so it is unlikely that the 15 judges will equate Israel’s attacks with genocide. However, the interim injunction requested by South Africa to stop hostilities due to the threat of genocide in the future leaves the court some leeway. Because this is about an assessment: Could Israel’s further actions lead to genocide in the future?
The fact that parts of Israel’s right-wing government coalition view the Palestinians with hatred can be seen from their statements – among other things, a minister brought up the possibility of dropping a nuclear bomb on Gaza. But as long as Prime Minister Netanyahu distances himself from such statements, they are unlikely to be evidence of genocidal intent.
The accusations that Israel would use particularly brutal weapons, for example bunker-busting 900 kilo bombs that are capable of exposing tunnels deep in the earth, but whose explosive power can also destroy entire city blocks, are probably more serious. In order to use such bombs in a residential area, one must be prepared to knowingly accept a high number of civilian casualties. If Israel were to be legally proven to have literally gone to great lengths to achieve its military goals, this could be considered a war crime under international law. However, the intention to kill would still be missing, which would justify the accusation of genocide.
The State of Israel will defend itself against the accusation of genocide in The Hague. Because even if it does not seem very likely that the Court will demand a cessation of hostilities – the possibility exists. And this process is dangerous for Israel even without such a result. The declared partner countries of the Jewish state, above all the USA, are taking note of it and could threaten to withdraw their support in view of the allegations being negotiated. Israel must therefore do everything in its power to ensure that the suspicion of genocide is deemed unfounded in court.