Israel Is Lonely in the Dock

Israel has been convicted of genocide by protesters at Columbia and UCLA, but its genocide case before the International Court of Justice is still pending. Israel remains officially aghast that it, and only it, is subject to judicial proceedings for the crime of genocide—and that the ICJ’s rulings so far have implied that the judges think Israel might be guilty of the crime of crimes. According to reports this weekend, the International Criminal Court—a separate body that hears cases against individuals—is preparing arrest warrants for Israeli officials and possibly Hamas leaders. In the ICJ, Israel stands alone.

In January, the judges stopped short of ordering Israel to stop fighting in Gaza, but they voted 15–2 to remind Israel of its obligations under the Genocide Convention. Among the judges voting with the majority was the German jurist Georg Nolte. His written opinion was curiously apologetic. He called the whole situation, including the atrocities committed by Hamas on October 7, “apocalyptic.” He noted, correctly, that the case before him was not about “possible violations of the Genocide Convention by persons associated with Hamas.” The ICJ hears cases between and against states, and Hamas isn’t one. “While these limitations may be unsatisfactory, the Court is bound to respect them,” he wrote. “I would like to recall, however, that persons associated with Hamas remain responsible for any acts of genocide that they may have committed.”

[James Smith: The genocide double standard]

Was this a coded suggestion? Without consideration of the October 7 attacks, something is missing from the ICJ proceedings, and Nolte is not the only one to sense an omission. The case is going forward almost as if the Gaza war were not preceded by, and in retaliation for, an attack that itself resembled genocide. Israel’s defenders, including its legal team at the ICJ, have complained that the proceedings tell only half the story, and that a full assessment of the facts would demand consideration of Hamas’s actions, too.

There is a simple remedy for this problem: Charge Palestine with genocide, and let the ICJ hear both cases at once.

The idea is not mine. I first heard it from David J. Scheffer, a senior fellow at the Council on Foreign Relations who served in the Clinton administration as ambassador at large for war-crimes issues. At least three of the judges’ opinions, he told me, suggested that they were “uncomfortable arriving at a determination on the merits of this case, when a large component of the entire situation is not on the table.” Nolte hinted at this view most strongly. The declarations of judges from Uganda and India also noted the absence, as did the judge designated by Israel, Aharon Barak. Scheffer said a parallel case against Palestine “would be to the advantage of the court and, frankly, facilitate their ability to reach a decision” that enjoyed a broad legitimacy.

Every international lawyer I spoke with about this idea called it wild and implausible. Foremost among the objections is the fact that the international representative of the state of Palestine is the Palestinian Authority, not Hamas. The PA is not just not Hamas—it is directly opposed to Hamas, which slaughtered PA members when it seized control of Gaza in 2007.

Irrelevant, Scheffer says. “Hamas members are nationals of the state of Palestine, which is party to the Genocide Convention.” The Genocide Convention obligates its parties (including Israel and most other countries) to prevent, investigate, and punish genocidal acts. The failure to prevent and punish was enough to convict Serbia of genocide in a case before the ICJ in 2007. If Hamas committed genocide on October 7, then Palestine was obligated to stop it and punish its culpable members. Palestine has manifestly failed to do so, with even token gestures. Palestine “is supposed to prevent you from committing genocide, even if you’re a terrorist,” Sheffer told me. “Its duty is to prevent and punish genocide. And I don’t think there’s a record of any punishment [by the PA] of any Hamas member.”

Others doubted that Palestine was even subject to the ICJ’s jurisdiction, because the state of Palestine is not a member of the United Nations General Assembly. It is a “nonmember observer state.” Sheffer points out that this question comes close to being resolved by a statement, helpfully posted on the ICJ’s website, from the state of Palestine itself, consenting to the ICJ’s jurisdiction. In 2018, Palestine went to the court to object to the Trump administration’s decision to move the U.S. embassy from Tel Aviv to Jerusalem. In doing so, it declared that it “accepts all the obligations of a Member of the United Nations” with respect to the ICJ. Moreover, Article IX of the Genocide Convention—which Palestine joined in 2014, and Israel joined in 1950—specifies that the ICJ will hear any cases concerning genocide.

Eliav Lieblich, an international-law professor at Tel Aviv University and a critic of Israel’s conduct of the Gaza war, pronounced the idea of instituting a genocide case against Palestine “theoretically interesting” but “a political nonstarter.” Cases have to be brought to the court by a state, as South Africa did against Israel. Lieblich noted that any state bringing a case against Palestine would, in effect, be recognizing the Palestinian state. You can’t prosecute a state whose existence you deny. That catch-22 favors Palestine: Countries that recognize Palestine tend to be on Palestine’s side, and therefore disinclined to prosecute it at the ICJ.

[Graeme Wood: Israel’s bitter bind]

But plenty of countries could still bring the case. Of the 193 members of the UN General Assembly, 151 have joined the Genocide Convention. Of those, more than 100 recognize the state of Palestine. Remove from that list the countries that are so pro-Palestine that they would never bring such a case, and at least 30 countries remain, including Cambodia, Paraguay, and Poland.

Any of these countries could start proceedings. But who would want to? (“We have enough problems,” one official from a country on the list replied when I asked if his country would be game.) Longtime critics of Israel have treated South Africa as heroic for stepping up to prosecute Israel. Any country that prosecuted Palestine would probably risk the opposite effect on its reputation.

But Scheffer urges countries to think strategically about the effect of bringing a case against Palestine. Doing so would greatly influence the proceedings against Israel, he says, and that influence “is not necessarily to the detriment of South Africa’s position.” Israel’s complaint that it is lonely in the dock vanishes instantly if it has company. Judges would be more inclined to rule against Israel, Scheffer suggests, if they did not feel that they were singling out the Jewish state. “If they could also look at the evidence regarding Hamas and say there is also a violation by the state of Palestine, that would be a much more comfortable position for judges to take.”

And it is far from certain that the court would convict Palestine. Palestine could defend itself by saying that it failed to prevent genocide because it was itself prevented from doing so by Israel, through its occupation of the West Bank and hamstringing of the Palestinian Authority’s capacity to act. Eliav Lieblich noted that in other international courts, a state’s duties are lightened or relieved when its territory is controlled by another, stronger state. Israel would not relish having to observe this defense.

And, finally, the ICJ imposes very high burdens on the prosecution in genocide cases. The prosecution must demonstrate the intent to destroy a protected group, and the absence of plausible nongenocidal intents that might explain the behavior of the accused. Could a prosecutor show that the only possible rationale for Hamas’s actions on October 7 was to commit genocide against Jews? Could Palestine convince the judges that Hamas was instead attempting to resist Israel’s occupation, and that if Hamas intended genocide, it would have planned its operation differently? If so, Palestine, and by extension Hamas, would likely be acquitted.

Israel has at its disposal a similar defense. Might the death and suffering of Gazans be attributable not to an intent to wipe them from the Earth, but to a desire to free hostages and defend itself against a terror group that commits flagrant war crimes, vows to keep doing so, and uses civilians as shields? If so, Israel, too, stands a good chance of acquittal.

One frequently noted shortcoming of the International Court of Justice, and of international law more broadly, is that its justice is applied unevenly (and often by the strong against the weak). Israel is frustrated that, at the ICJ, it seems to be allowed only to lose, while its wartime adversary remains beyond judgment of any type. The verdicts would not depend on each other—one party could be guilty and the other innocent—but the ICJ’s legitimacy does seem to be tied to the willingness of the court, and the states before it, to punish potential violators of all types, and not just those vilified, rightly or wrongly, in the current wave of fashionable opinion.