Right To Defense, No Final Solution: A German Take On Genocide Charges Against Israel

Updated Jan. 20, 2024 at 12:40 p.m.

–OpEd–

Israel must answer to genocide charges before the venerable International Court of Justice (ICJ). South Africa has requested an interim measure to compel Israel to cease fighting in the Gaza Strip on the grounds that it is breaching the 1948 Genocide Convention.

The convention is largely based on the preliminary work of the Polish-Jewish lawyer Raphael Lemkin, who lost almost his entire family in the Holocaust. Lemkin considered the Nazi extermination of the Jews a prototype of genocide and wanted to outlaw it forever under international law.

Against this backdrop, it is hardly surprising that the genocide accusation against Israel has led to great outrage there and beyond. There’s no overstating how much is at stake when the Genocide Convention is aimed at the state whose existence is largely due to the Holocaust?

Not the right court

The ICJ deals with the responsibility of states, but not with the criminal responsibility of individuals. That is in the hands of the International Criminal Court (ICC), whose headquarters is just down the road in the Hague.

The ICC has been dealing with Israel’s conduct in the territories it occupies (the West Bank, East Jerusalem and Gaza) for some time. So far, the ICC appears primarily concerned with Israel’s possible war crimes and crimes against humanity. The ICJ does not have jurisdiction over these acts. Even its jurisdiction over possible genocide is disputed.

This means that we can safely assume a legal dispute between South Africa and Israel over the interpretation of the convention, as Israel vehemently rejects South Africa’s accusation. Nevertheless, Israel argued last Friday that there was no legal dispute within the meaning of the convention because South Africa made the accusation unilaterally. But the very fact that Israel rejects the accusation suggests that there is a legal dispute to be had.

Hamas vs. Israel

Another important difference between the ICJ and the ICC is that the latter can also hold non-state actors such as Hamas accountable. The ICJ’s jurisdiction is limited to states. Therefore, only one party to the conflict (Israel) is on trial, although the accusation of genocide against the other (Hamas) could be made with greater persuasiveness. Israel rightly pointed out this asymmetry during the hearing.

Nevertheless, the ICJ will likely take into account Hamas’ involvement — as an invisible party to the proceedings, so to speak — when reaching its decision. It makes a big difference whether a state uses military force in response to an attack by a non-state party to the conflict, or whether its military measures are directed solely against a specific group of the civilian population.

This situation also distinguishes the case from the ongoing cases of Gambia v. Myanmar and Ukraine v. Russia. The first case concerns possible genocide by Myanmar’s military dictatorship against the Rohingya Muslim group, i.e. the targeted attack on a civilian population group outside of an armed conflict.

The ICJ initially recognized its jurisdiction in July 2022. In the second case, Russia justified its war with the prevention of an alleged Ukrainian genocide. Ukraine used the convention to persuade the ICJ to order Russia to cease its hostilities pending a decision on the merits of the case. The ICJ essentially agreed to the suggestion in March 2022.

What is genocide? 

The Genocide Convention states that it is a matter of protecting the existence of certain groups, whereby — and this is decisive — the perpetrator must act with the overarching intention of destroying the group in question, at least in part. It is therefore an offense with an “excessive internal tendency.”

The perpetrator must want more than he objectively carries out. For example, the killing of members of a group or the causing of serious harm to its members — both acts that can objectively form the basis of genocide — is not sufficient for the affirmation of genocide; the intention to destroy must always go beyond this.

In the case of Israel, this means that genocide cannot be assumed simply because massive military strikes are carried out and cause considerable damage to people or property.

How to prove genocide

To prove this intent to destroy, government declarations with a clear genocidal intention can be taken into consideration. A classic example is the “Final Solution to the Jewish Question” from the minutes of the Berlin Wannsee Conference of 1942.

South Africa has presented a number of statements by Israeli politicians and military officers that suggest a genocidal intent with regard to Palestinians in Gaza. But these declarations face two major objections.

First, some have been taken out of context and quoted incompletely. For example, on Oct. 28, 2023, Prime Minister Benjamin Netanyahu not only recalled — contrary to the South African account — the biblical narrative of the Israeli people’s struggle against the Amalekites as their hereditary enemy. But he also pointed out that the aim was to destroy Hamas and that care must be taken to ensure that civilians not involved and were not harmed.

Israel’s right-wing extremist politicians should have been dismissed long ago

Second, only statements made by members by the state body responsible for the war (i.e. members of the so-called Security Cabinet or the War Cabinet) can be attributed to the State of Israel — as the defendant under international law before the ICJ. But it is probably going too far, as argued by Israel, to assume that only decisions taken collectively represent state policy.

In any case, right-wing extremist politicians Itamar Ben-Gvir and Bezalel Smotrich, who have attracted attention for genocidal statements, are Security Cabinet members and should have been dismissed long ago. Otherwise, Israel will continue to be accused of not taking decisive action against statements that could be considered incitement to genocide and are also punishable under domestic law.

Warfare and humanitarian law

The compatibility of specific Israeli warfare with international law can certainly be called into question. But this has little or no bearing on the proof of genocidal intent to destroy. According to international case law, the assumption of such intent requires that it be the only possible conclusion of the objectively committed acts. This strict standard also applies in principle in proceedings for interim relief, in which the applicant must demonstrate that violations of the Genocide Convention have occurred or are occurring.

Some of South Africa’s requests deny Israel’s right to self-defense against the armed attack by Hamas

Some measures taken by Israel to comply with international law (e.g. the warning and evacuation of the civilian population) and to facilitate humanitarian aid also tend to speak against genocidal intent. If South Africa describes Israel’s evacuation order itself as genocidal, this turns international law on its head, as a party to the conflict must evacuate the civilian population from the combat zone. Even if this order is considered inadequate (for example, because there are no safe places in the Gaza Strip), it is impossible to derive a genocidal intention from it.

Finally, concerning the nine interim measures requested by South Africa, Israel rightly said that some go beyond previous case law and others go too far by unduly restricting Israel’s right to self-defense against the armed attack by Hamas.

Of course, Israel must defend itself within the framework of international law, but an ICJ order based on a possible Genocide Convention violation cannot require an attacked state to completely suspend hostilities. That would deprive Israel of its right to self-defense, permissible under international law.

Finally, such an order would only affect Israel, while Hamas would be able to continue its military operations freely.