The International Court of Justice’s decision regarding South Africa’s request for provisional measures in its genocide case against Israel is expected tomorrow. Whatever the Court decides, it is worthwhile noting that the impact of the process is already evident. And any provisional measures that may be given, will shape a years-long and likely tense dialog between Israel and the Court, as well as third countries. One of the fundamental insights of law and society is that the significance of legal process often outweighs its outcome. In his 1979 classic, “The Process is the Punishment,” Malcolm Feeley called upon readers to pay attention to this aspect of criminal procedure. The current process in The Hague is not criminal, nor is punishment due. Unlike the International Criminal Court Prosecutor’s investigation, it is at least in theory not directed towards individuals, or towards shaping their behavior. Yet, for better or worse, it will do exactly that. The basic insight on the primacy of process may apply here as well.
After hearing South Africa’s arguments, many lawyers (including myself), speculated that even if the provisional measure is granted, the likelihood of Israel being held responsible for genocide at the end of the day is small. “You don’t need a crystal ball” to say that, observed Marko Milanovic on EJIL’s podcast. Ultimately, however, time is precisely what will tell. To assess the merits phase appropriately, it’s essential to remember that the Court cannot press a button, freeze the current situation, and issue a judgment based on what we know. Everything that will happen for the duration of the proceedings, over the next two or three years at least, will continue to build evidence until, finally, the owl of Minerva will spread its wings.
My purpose in this post is to provide some provisional reflections on how that may work. In doing so, I will expand a bit on a notion I’ve tried to develop in a previous post, that of counter-genocidal governance.
“Intent to Destroy” and Jus Post Bellum
The first and perhaps the most important process that will continuously shape the merits is the Israeli discussion on the “day after” or, more precisely, the absence thereof. Under the Genocide Convention, the ICJ will examine whether Israel had the intent to “destroy” the Palestinian people in Gaza “as such” (Article 2). Whether convincing or not, Israel’s rebuttal in the provisional measures hearing two weeks ago was ultimately simple: Israel has no intent whatsoever to “destroy” the Gazans. Israel’s intent has been and still is to provide security for its citizens (and bring back the hostages). However, if Gaza’s 1.9 million displaced people will not be able to return to their homes, it will become harder and harder to maintain an argument about defensive intent. Indeterminate displacement looks like something else (one such thing is the Nakba). Israel’s legal defense, even if currently visible sans a crystal ball, will thus gradually deteriorate.
Recently, right-wing politicians, including from the ruling Likud party, came together for the “Victory Conference”. The stated goal of this conference was to promote a solution of conquering and settling Gaza. More or less at the same time, Israel’s foreign minister, Israel Katz, pitched to EU foreign ministers the idea of building an artificial island off Gaza’s shore for Gaza’s residents. Katz’s idea is grotesque, but less extravagant ideas of forced displacement are regrettably not merely on the fringe of Israeli politics. Any movement forward with such ideas, on the policy level, will send a clear signal to The Hague: from the Court’s legal perspective, any steps taken to realize such policies would strengthen the case that Israel is indeed violating the Genocide Convention.
Already now, South Africa can argue that Israel’s determined avoidance of discussing political solutions for “the day after” reflects the intention that there will be no such day for Gazans. If I were a legal advisor to the Israeli government, I would urgently convey a message: The process in The Hague transforms the need to show a plan for Palestinian life in Gaza after the war. No longer is it simply an advisable policy. Showing such a plan has become a legal duty.
A body of scholarship has attempted to conceptualize “jus post bellum” – the obligations of states after war. But even assuming the concept has not so far been cemented in positive law, a certain version of it may have real legal bite even before the war is over. At issue, once again, is a potential due diligence requirement imposed upon Israel, to show over an extended period, that it is not content simply “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. The latter is a likely outcome of a war with no plan for reconstruction.
Complementarity at the ICJ
As Israel’s actual governmental legal advisors know, another issue that will be under international scrutiny, whatever provisional measures are granted, is criminal proceedings. On Sunday, Israeli sources reported that the country’s Attorney General, Gali Baharav Miara, opposes a proposed Bill introduced by Member of the Knesset Simcha Rotman. According to the Bill, suspected Hamas combatants will be denied legal representation. Her rejection of this measure seems rather elementary. What is more interesting in the present context is her reasoning, which was that the legislation would harm Israel’s legitimacy in light of South Africa’s genocide case.
In other words, it seems the Attorney General is concerned that denying representation will negatively influence Israel’s chances of defending itself against the charge of genocide. To be sure, the right to a fair trial is not mentioned in the genocide definition, nor is it necessarily a central pillar of the notion of genocide, as developed by international tribunals. Genocide usually refers much more directly to acts of direct and enormous violence. But the Attorney General may be right that such a heinous violation of due process may generate greater indication that Israel’s general intentions are genocidal.
This dynamic of medium-term ICJ oversight of domestic policies is what I call counter-genocidal governance. Oversight of criminal proceedings will not only focus on proceedings against Palestinian suspects. After the first hearing at the ICJ, a recording of an Israeli officer circulated online, in which he declared: “We need to make sure that wherever the IDF encounters Gaza, there will be destruction.” South Africa’s legal team will undoubtedly continue to highlight such statements. They will seek to prove intent to destroy not only in the words of Israeli leaders or in the Israeli cultural environment (as documented in their initial written application). Not less important will be the words of commanders on the ground, which may form the basis for more localized allegations of genocide, not necessarily encompassing the entire Gaza campaign. Excuse me for imagining myself, once again, in the shoes of the Attorney General: I would rush to launch a criminal investigation against this officer and make a systematic effort to reach others. Such an investigation could have some leverage in preventing the conclusion that his statement reflects Israel’s intentions as a state.
The notion of “complementarity” is familiar from the Rome Statute and applies in the context of the ICC, not the ICJ. Under Article 17 of the Rome Statute, complementarity means that the ICC will not have jurisdiction when states fulfill their own role in prosecuting international crimes. However, reflecting a little bit more on how counter-genocidal governance might work, may suggest that something like complementarity may emerge here too. According to this analogous dynamic, the more Israel uses its legal system to mitigate the harms of war, the less likely it is that the ICJ finds against Israel on the merits. Conversely, the more Israel’s legal system ignores the destruction wrought so far, or is used to expand destruction, the greater the chance that Israel will be found liable.
Before this war started, Israel was in the throes of a constitutional crisis. The professional class of government lawyers, including Baharav Miara personally, was often chastised by populist politicians. Counter-genocidal governance, in which government lawyers attempt to caution politicians of actions that will incriminate the state at the ICJ, may feed a new iteration of this crisis. Domestic politicians may instrumentalize the kind of “complementarity” that will emerge in the context of South Africa’s genocide case, as an excuse to further attack Baharav Miara – for their own needs. It is far from clear that the Attorney General’s office is presently strong enough to give a real fight back.
Here too, the analogy with ICC procedures is salient. As Sarah Nouwen has shown in her 2013 book, the ICC’s complementarity has often generated unexpected political dynamics among domestic actors, who made their own use of the ICC. Indeed, an entire body of work supporting these insights in various ways comes to mind. Note an earlier work by William Burke-White, and a more recent piece by my colleague Yahli Shershevsky.
The two examples above illustrate the international oversight that a professional class of Israeli government lawyers has partly internalized due to South Africa’s application under the Genocide Convention.
While both examples present significant questions about how the merits phase will play out, they are not comprehensive. To quickly just mention one more, it is likely that medium-term oversight of Israel’s destruction of Palestinian cultural institutions may yield observations that are relevant to the genocide charge. Depending on whether Israel helps Gaza to rebuild, these observations may reflect more favorably or more damningly on Israel’s conduct. In the current political climate, I’m concerned that the latter might be the case.
If a provisional measure is issued against Israel tomorrow, the counter-genocidal governance of the country’s policies will intensify significantly. This intensity will vary in pattern according to the provisional measures’ scope.
Contrary to the professional and bureaucratic class, elected officials will most likely not accept the reality of counter-genocidal governance. Naturally, they will argue that this kind of oversight is undemocratic, and not in line with the will of Israeli citizens. But from a legal perspective, the outcome will nevertheless be clear: as long as the proceedings continue, resistance to the watchful eye of the Court will harm Israel’s legal defense. Israel’s policy today and in the coming months will shed light, retrospectively, on actions already taken in this war.