Why Germany Should Join Sides with Israel before the ICJ in its Defense against South Africa’s Accusation of Genocide

Yesterday and today, the ICJ heard an application for provisional measures brought by South Africa, in which Israel is accused of the particularly serious crime of genocide against Palestinians in Gaza due to its reactions to the Hamas attacks of 7 October 2023. Leaving aside specific questions of “provisional measures”, the proceedings raise fundamental questions of the determination and attribution of the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (Article II of the Genocide Convention). In proceedings initiated by The Gambia against Myanmar concerning the genocide of the Rohingya in 2019, similar questions of attribution and evidence arose. In November 2023, Germany, together with Denmark, France, the Netherlands, the United Kingdom and Canada, took a position on these issues by way of an intervention under Article 63 para. 2 of the ICJ Statute and supported The Gambia’s position as applicant. This participation in the proceedings, as well as other reasons to be explained below, speak in favor of also declaring an intervention in the proceedings between South Africa and Israel – in this case, however, with the aim of supporting Israel as defendant and countering the South African argumentation.

Characteristics of intervention before the ICJ

The ICJ Statute provides for intervention by third states in two different forms. First, there is the possibility of intervening if a state considers that its own legal interests may be affected by pending proceedings (Art. 62 para. 1 ICJ Statute). This is unlikely to be an option for Germany in the current proceedings, even considering the special historical connections between Germany, Israel and the Genocide Convention. Ultimately, Germany is not differently affected than any other party to the Genocide Convention.

Apart from this, a state may also intervene if a pending case concerns the interpretation of a multilateral treaty to which the intervening state is also a party (Art. 63 para. 2 ICJ Statute). The interpretation of a multilateral treaty has a high precedential effect for all other contracting parties, regardless of the judgement merely having a bilateral binding effect between the parties to the dispute (Art. 59 ICJ Statute). Therefore, all other contracting states are being given the opportunity to participate without having to assert a specific legal interest of their own. This general purpose of an intervening party under Article 63 para. 2 ICJ Statute can be regarded as largely consented, despite many other unresolved issues in the law of intervention. It also formed the basis for the declaration by Germany and its partners in the proceedings between The Gambia and Myanmar mentioned at the beginning of this post. This purpose also explains why – in contrast to the notion of intervention in many domestic settings – the intervention does not have to be declared explicitly in favor of one of the parties to the dispute. The focus is rather on protecting one’s interest in a particular interpretation of the treaty than on supporting one of the parties to the dispute. Notwithstanding this, the decision on a declaration of intervention naturally also has a considerable political dimension – as is the case with much of international law. This becomes very clear in a press release by the Federal Foreign Office on the declaration of intervention in the proceedings between The Gambia and Myanmar, in which, on the one hand, basic questions of the interpretation of the Genocide Convention are addressed, but on the other hand, a clear position is taken in favor of The Gambia and thus against Myanmar. The political positioning is even clearer in Germany’s declaration of accession in a third current case based on the Genocide Convention, namely the one between Ukraine and Russia (see, for example, the analysis in German here).

Why should Germany declare an intervention in the proceedings between South Africa and Israel?

Firstly, because of continuity. The proceedings between South Africa and Israel are the third to be brought before the ICJ within a comparatively short period based on the jurisdiction clause in Art. IX of the Genocide Convention. As just mentioned, Germany submitted a declaration of intervention in the two previous proceedings. In the proceedings between Ukraine and Russia, Germany expressly justified its declaration of intervention with its own history (para. 14). If Germany’s own history was part of the motivation for the declaration at that time, in order to be consistent, this must apply even more regarding an accusation of genocide brought against Israel. This does not mean that, for historical reasons, Germany must defend Israeli positions unconditionally or in a one-sided manner. But Germany’s historical responsibility does mean that it must make every effort to ensure that the Genocide Convention is interpreted and applied appropriately, especially in the Middle East.

Although intervening parties do not become parties to the dispute, they acquire their own procedural position, which includes, for example, the possibility to submit written statements and participate in oral proceedings (Art. 86 Rules of Court). These opportunities for participation are an important instrument for exercising responsibility for the Genocide Convention.

Moreover, an intervention gives Germany the opportunity to clarify and further develop its own position formulated in the declaration of intervention in the proceedings between The Gambia and Myanmar. In this intervention, a strong emphasis was placed on sexualized violence, violence against women and children, and the creation of conditions of life calculated to bring about its physical destruction. In view of the terrible humanitarian situation in the Gaza Strip, these aspects become once again of fundamental importance in the present proceedings. South Africa’s application argues with an extensive list of measures described as “genocidal acts” (paras. 43 et seq.), which are closely linked to Israel’s massive use of military force and demonstrate the unbearable current living conditions. However – and in this respect the situation in the Gaza Strip differs fundamentally from that of the Rohingya in Myanmar – the military conflict between Israel and Hamas must be taken into account when conclusions about a possible genocide are to be drawn from the extent of the use of military force and from the extent of destruction of civilian infrastructure. South Africa completely ignores Israel’s self-defense situation. This is not to say that all of Israel’s actions are covered by the right to self-defense and are therefore justified. However, even excessive self-defense does not automatically constitute genocide, but “merely” a violation of international law. Thus, the alternative “Self-defense or Genocide?” (see the heading of an article in German linked here) is a simplified and incorrect description of the situation. The same also applies to possible violations of international humanitarian law or human rights guarantees. Even if they exist, they do not automatically establish genocidal intent.

One of the central legal questions in the ongoing proceedings will be how and when the “intention to destroy, in whole or in part, a national, ethnical, racial or religious, as such” can be inferred from a combination of the massive use of military force and statements made by political leaders and other officials during an ongoing military conflict (some of which are difficult to bear…). In that regard, plausible alternative interpretations must not be completely ignored. The ICJ expressly declared this in connection with the Yugoslavia conflict: “[…] in order to infer the existence of dolus specialis from a pattern of conduct, it is necessary that this is the only inference that could reasonably be drawn from the acts in question.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, l.C.J. Reports 2015, p. 3, para. 148). Regarding the measures taken by Israel, such a plausible alternative interpretation does exist. The military measures could be understood as aiming at the destruction of the Hamas terrorist network and not to annihilate the Palestinian population. Thus, even though the high number of civilian deaths and the enormous material damage are appalling, they do not automatically prove the intention of genocide. The repeated requests to the civilian population to leave certain parts of the area or the observance of the duty to warn and set a deadline before withdrawing protection from a civilian hospital when it is “used to commit, outside their humanitarian duties, acts harmful to the enemy” (see Art. 19 IV Geneva Convention) are two concrete examples of precautionary measures taken by the IDF which may speak against such an intention.

Unfortunate focus on the accusation of genocide

By way of conclusion: It is, of course, to be welcomed in principle that the South African application leads to the emotionally and politically highly charged conflict between Israel and Palestine being channeled into arguments of law, which by its nature promises a rational and structured form of dealing with disputes. As the “principal judicial organ” of the United Nations (Article 92 of the UN Charter), the ICJ is also the appropriate forum. However, it must not be overlooked that the scope of the ICJ’s jurisdiction depends on prior consent by the parties to the dispute. Under the Genocide Convention, the contracting parties declared their consent to the jurisdiction of the ICJ as early as 1948. Unfortunately, however, this does not apply to most of the other rules applicable to the conflict between Israel and Palestine. Therefore, the ICJ lacks jurisdiction with regard to international humanitarian law, international human rights guarantees and, above all, the UN Charter and the right of self-defense. This limitation leads to a very unfortunate focus of public attention on the accusation of genocide and, at the same time, limits the ICJ’s options regarding its decisions. It is not foreseeable whether the overly narrow focus on genocide will trigger a dynamic of its own at later stages of the present proceedings and, if so, in which direction such a dynamic will point. This uncertainty in further development is another reason for Germany to participate in the proceedings.

I am indebted to Narin Nosrati for her support in translating the German version of this post.