The following is based on a talk given by Professor Samuel Estreicher at the 26th Annual Conference of The Federalist Society, in San Francisco, CA, on January 9, 2025.[1]
Israel has made mistakes in this war. But the principal culprit here is Hamas, which has violated nearly every law of war. Unprovoked, it initiated the long-planned 10/7/23 massacre of more than a thousand innocents and taking of 250 hostages. Hamas is the party that decided to engage in military conflict from tunnels built under civilian homes, to use its citizens (and Israeli hostages) as human shields, to convert hospitals and schools into military bases, and to commandeer and compromise ongoing food and water supply. The scale of the destruction in Gaza is a direct and inevitable function of how Hamas has waged this conflict.
The Fog of War
In the fog of war, accuracy and truth are often casualties as well. This is especially the case when the UN, aid organizations, and many in the media have forsaken their fidelity to facts and are animated largely by their political/ideological commitments against Israel.
For example, take the food situation. Israel reports that since the conflict started to the beginning of this year, it has supplied 1.28 million tons in humanitarian aid (75% of which was food aid). Yet we know not all of the food is getting to Gazans. There are at least five reasons for this gap between supply and actual receipt:
- A good deal of the food is stolen by bandits (In late October 2024, 109 UN trucks were hijacked; the Biden Administration’s attempt to erect a pier for transport of food aid was also hampered by extensive theft.)
- Aid organizations do not want to use armed guards because they fear Hamas retaliation.
- Hamas wants to control the food supply and take its cut.
- Believe it or not, the UN and Israel disagree on the counting of trucks (the UN will only count full trucks).
- Israel imposed new, avoidable customs requirements.
Surely, Israel (as well as the aid organizations) could have done more to protect aid trucks, and could have been more flexible all around. This is principally a logistics/implementation problem. There is simply no evidence of a deliberate attempt to starve Gazans.
I take issue here with the orders of the International Court of Justice (ICJ) in South Africa v. Israel regarding whether provisional measures are warranted against Israel under the Genocide Convention. (Application of Convention on Punishment and Prevention of Genocide [GC], (S. Afr v. Isr.), Order, 2024 I.C.J., 4 (May 24); Order, 2024 I.C.J., 24-26 (January 26). While not finding that Israel committed genocide or even that the claim of genocide was “plausible,” the Court nevertheless determined that provisional measures were indicated because of a claimed “risk of genocide.” I offer 10 points of criticism of the ICJ’s orders:
1. Specific-intent Requirement
First, it must be emphasized, Genocide is a specific intent crime. A violation of the Genocide Convention requires a showing of specific intent “to destroy, in whole or in part, a national, ethnical, racial or religious group as such” (GC Art. II) (emphasis added). Each of the prohibited acts listed in Article II has to be committed with this specific intent. And in drawing inferences from a pattern of conduct as opposed to express plans to commit genocide, the ICJ has instructed, genocidal intent requires a showing “this is the only inference that could reasonably be drawn from the acts in question.” (Croatia v. Serbia (2015) ¶148) (emphasis added).
2. ICJ’s Jurisdiction is Limited to Violations of the Genocide Convention.
The ICJ does not sit here to adjudicate whether the laws of war (sometimes called international humanitarian laws or IHL) have been violated. The Court’s authority is limited to violations of the Genocide Convention, and that is the extent of Israel’s consent to the Court’s jurisdiction.
3. Provisional Measures.
The Statute of the ICJ authorizes “provisional” measures but provides no standard for determining when they should be indicated and what the scope of such measures should be. The Genocide Convention itself is silent on these issues. The Court has ruled there is a need for provisional remedies essentially to preserve the status quo pending a decision on the merits.
4. Common Law and Civil Law Standard for Preliminary Injunctive Relief.
The question, then, is what is, or should be, the standard for indicating provisional measures? In U.S. common law and most civil law countries, a preliminary injunction—which also serves to preserve the status quo—requires a showing of “likelihood of success on the merits. “These courts engage in a preliminary consideration of the merits – not a full trial—but they take into account what both sides have shown on the law and the facts.
5. The ICJ’s Low-Bar “Plausibility” Standard.
Here, by contrast, the ICJ’s approach is to ask very little of South Africa, the applicant for the provisional measures against Israel. Other than questions of urgency of the need for relief and irreparable harm flowing not granting such relief, the Court simply has to satisfy itself that South Africa’s allegations are “capable of falling within the scope” of the Convention; and the rights being invoked are “at least plausible.”
As the Court concluded in its January 26, 2024 order, the “facts and circumstances” recited therein are “sufficient to conclude that at least some of the rights claimed by South Africa, and for which it is seeking protection, are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts…” (emphasis added).
The Court never explains what “plausibility” means, and what it means for “rights,” as opposed to “claims”, to be “plausible”. And even if rights fall under the Convention, why is “acts of genocide” the label that is used.
6. Former President Donoghue: the ICJ Did Not “Decide that the Claim of Genocide Was Plausible.”
In an attempt to allay public confusion, former ICJ president Joan Donoghue, made clear in an April 26, 2024 BBC interview—that the Court “didn’t decide that the claim of genocide was plausible, only that “there was risk of irreparable harm to the Palestinian right to be protected from genocide” (emphasis added).
But what does this mean? No “plausible” claim of genocide has been established, and yet, we are told, there is a risk of irreparable harm to the right of Gazans to be protected from genocide. The Court never states that there is in fact a “significant risk” of genocide going on, or why the “genocide” label should be attached at all (given the Convention’s specific-intent requirement). (This, in my view, seems to be a way of smuggling in IHL issues under the counterpane of “genocide” rhetoric.)
7. The Court’s Test Fails to Require Some Meaningful Connection to Likely Violations of the Convention.
The Court has never explained why it has not adopted the “likelihood of success on the merits” standard for provisional measures of most countries. It may not wish to require a full trial of the merits at the provisional-measures stage. But a full trial is not necessary to still insist on some meaningful connection between the conduct charged and likely violations of the Convention, which would require serious consideration of Israel’s intent with respect to that conduct.
8. No Consideration of Israel’s Humanitarian Measures.
Moreover, the Court in its orders did not even discuss, much less take into account, the various uncontested measures Israel took to minimize casualties and provide humanitarian aid in very difficult circumstances—measures that simply cannot be squared with genocidal intent:
9. The Convention is Not an All-Purpose Mechanism for the Suffering of Gazans.
We all care about the suffering of Israeli and Gazan peoples. But it is important to remember the Genocide Convention is not an all-purpose mechanism to address such suffering. Nor does it provide a framework for dealing generally with laws of war (IHL) violations. The ICJ does not here have jurisdiction, and Israel has not submitted to that Court’s purview, over such violations.
10. ICJ’s “Risk of Genocide” Rhetoric Takes on a Penumbral Life as a Seeming Ruling on Claims of Genocide That Have Not Even Been Found Plausible.
A final word about the rhetoric used in the Court’s orders. The charge of “risk of genocide” has triggered acts of violence against Israel and Jews world-wide almost on a daily basis.
Whether intended or not, the ICJ’s provisional -measure orders have taken on a legally baseless “penumbral” life as a seeming ruling on Israeli genocide, or “plausible” claims of genocide. Perhaps the assailants are not reading the ICJ opinion as carefully as well-trained international lawyers might, but the problem also stems from the ICJ’s confused “plausibility” jurisprudence which almost literally invites unwarranted public accusations of Israeli genocide.
Conclusion
The time has come for the ICJ to clean up its jurisprudential house and come up with a standard for provisional measures that (a) is clear, (b) makes sense in terms of its relation to the ultimate case to be proven, and (c) can be consistently applied.
[1] For my previous statements on the ICJ orders in the Gaza-Israeli “Genocide” case, see World Court Issues Another Puzzling Ruling Against Israel Under the Genocide Convention (July 9, 2024) and The World Court Lacks Any Plausible Basis for Directing Provisional Measures Against Israel Under the Genocide Convention (Feb. 22, 2024).