Genocide On the Docket at the Hague

International law is a tool for both oppression and emancipation, says AUC law professor Thomas Skouteris in this Q&A as he breaks down the intricacies of the ICJ’s January 26 order for provisional measures in South Africa v. Israel, and elucidates the present and future of international law.

Judges at the International Court of Justice (ICJ) rule on emergency measures against Israel following accusations by South Africa that the Israeli military operation in Gaza is a state-led genocide, in The Hague, Netherlands, January 26, 2024. REUTERS/Piroschka van de Wouw

As the war on Gaza rages on, people fear that “never again” is being challenged once more—after one failure too many was followed by another, and one lesson that came at far too high a cost nonetheless came every time. Those concerned with Palestinian rights recalled with trepidation the genocides of the 20th century, including but not limited to the Herero and Nama genocide, the Holocaust, Bosnia, and Rwanda.

Steadily growing in the public discourse as Israel’s assault on Gaza continues despite international calls for a ceasefire is the notion raised by independent United Nations experts as early as October 19 that Israel may commit genocide against the Palestinian people in Gaza.

By November, Israel’s assault had been described as a “genocide in the making”.

This view was not limited to the political sphere; on December 29, 2023, South Africa instituted proceedings against Israel at the International Court of Justice, claiming violations of the the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). It argued that Israel was acting with genocidal intent based on actions, omissions, and public statements by the government and government officials. South Africa said that it had—as a party to the Convention—an obligation to prevent genocide, and asked the International Court of Justice to order legally binding provisional measures for Israel to stop its assault and cease potentially genocidal acts.

The Court held public hearings on January 11 and 12, 2024, in which both sides made their case. Israel vehemently denied these accusations and argued that it had a right to defend itself, referring to Hamas’ attack over three months prior. The Court then issued provisional measures on January 26, ordering Israel to do everything in its power to prevent genocidal acts, make sure evidence is not destroyed, ensure humanitarian aid gets into Gaza, and report back on its efforts on these fronts in one month’s time.

To understand the nature of the ICJ’s order, its significance within the war on Gaza, the intricacies of international law relating to the case, and this field of knowledge more broadly, the Cairo Review of Global Affairs invited American University in Cairo associate professor of law and chair of the law department, Thomas Skouteris, to a Q&A. He is one of the founding members and the first secretary-general of the European Society of International Law and of the Foundation for New Research in International Law.

These questions were answered on January 26, the day of the announcement of provisional measures. Today, Israel will report to the Court its efforts to implement them.

Cairo Review: What do you think are the merits and weak points of the South African and Israeli arguments at the International Court of Justice? How valid is the argument for genocidal intent, and the counter-argument of acting in self-defense?

Thomas Skouteris:  Our conversation today could not be more timely. While our focus should rightly be on the intricacies of today’s ruling, it’s crucial to note that judicial processes represent only one facet of the broader workings of institutions of international governance. The implications of today’s decision are yet to be fully discerned. It is imperative to temper expectations regarding the transformative power of judicial proceedings. Often, international law is perceived as the deus ex machina that will save the day; however, it is often part of the problem.

With regard to the Court’s order: The arguments by both parties in this case were highly predictable, both in content and delivery, underscoring the theatrical, or even performative, nature of legal proceedings. Yet, this predictability doesn’t necessarily detract from their substance.

South Africa’s presentation was measured. It deliberately steered clear of sensationalism, perhaps to preclude any potential criticism from Israel. The approach was poised yet assertive, couched in legal doctrine, and reminiscent of British barrister-style rhetoric. It is no accident that the case was led by John Dugard, perhaps the most respected of South African international lawyers, and renown globally for his commitment to fighting human rights abuses for over sixty years. South Africa’s argument focused on fact with minimal drama, occasionally referencing the conflict’s history for added emphasis. The tone frequently shifted toward addressing the Court directly, seemingly to remind it of its duty to rise to the occasion. The argument was pressed against the backdrop of the Gambia v. Myanmar case, where provisional measures were granted under the same Genocide Convention. South Africa argued for the gravity of the Gaza situation, emphasizing the dire need for provisional measures to halt ongoing atrocities. South Africa’s referenced statements by Israeli top officials, such as the President of Israel and the Defense Minister, which were made in “dehumanizing language”. It also referenced UN-reported facts. The Court’s order, as it turns out, accepted the salience of the argument.

Israel’s approach was more dramatic, marked by defiance and an attempt to reverse the narrative. It portrayed Israel as the victim of genocide by Hamas. Israel’s strategy aimed to delegitimize South Africa’s position by highlighting alleged ties with Hamas. Professor Malcolm Shaw, representing Israel, accused South Africa of factual distortion and defended the Israel Defense Forces as the “world’s most moral army”. Israel contended that South Africa’s use of “genocide” trivialized the concept of genocide, thus undermining the purpose of the Genocide Convention.

Israel argued the situation was in reality an armed conflict in self-defense against a terrorist organization. It contended that the provisional measures sought would unfairly restrict its ability to defend itself. Additionally, Israel challenged the procedural basis of South Africa’s claim, arguing for its dismissal from the Court’s docket due to the absence of a “dispute” under the Genocide Convention. Israel emphasized its commitment to addressing any  breaches of humanitarian law by its forces through its domestic justice system.

The Court earlier today did not entertain the self-defense argument and did not seem to endorse much of Israel’s position, at least not for the purposes of the provisional measures stage of the case.

Yet the Court fell short of ordering a ceasefire.

TS: Indeed. The Court wanted to carefully address the request for provisional measures while trying not to limit the (inherent, under international law) right of a state to defend itself and, thus, not taking a position that would prejudice its finding on the merits of the case. As the Court frequently does, it went only as far as it needed to in order to justify its Order.

[At this stage, the ICJ is not looking into the merits of the case itself or even if it has jurisdiction to rule on it, but only on whether it has prima facie jurisdiction, jurisdiction upon first impression, to order provisional measures to prevent irreparable damage until closer examination is conducted by the ICJ.]

How enforceable is an ICJ order for provisional measures? 

TS: These orders are legally binding, as established by the ICJ’s statute and jurisprudence, notably in the LaGrand case (Germany v. United States, 2001).

[In the LaGrand case, the Court determined that its orders for provisional measures were, in fact, legally binding.]

However, their enforcement largely depends on state cooperation, reflecting the principle of sovereign equality in international law, due to the lack of a supranational enforcement mechanism, save for cases where a competent international organization or an organ of such an organization, such as the UN Security Council, takes binding measures necessary for the enforcement. This, however, is difficult to imagine.

Politically, these orders are also significant. They signal international acknowledgment of potential legal violations, exerting diplomatic and moral pressure on states for compliance. Public and media attention often intensifies this pressure. Compliance indicates a state’s adherence to international law, while non-compliance can harm its reputation and, in legal terms, undermine its case during the merits, as it will add another major point of legal scrutiny. In the instant case, the request by the Court for Israel to submit a report detailing measures taken in compliance with the order is likely to keep the matter high on the diplomatic agenda and proliferate the instances where the binding effect of the order might bear upon international negotiations. It is also likely to embolden out-of-court rhetoric that utilizes international law in the public domain to shame Israel and create pressure.

What are the precedents outside of the ICJ in terms of proving genocidal intent and prosecuting genocide? And how have similar cases in the ICJ developed the law in this regard?

TS: The prosecution and proof of genocidal intent has been largely undertaken by international criminal tribunals such as the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Court (ICC). These tribunals have played a critical role in shaping the legal understanding of genocide, particularly in terms of establishing genocidal intent.

In contrast, the International Court of Justice focuses more on state responsibility rather than individual criminal liability in genocide cases. It examines if states have breached their duties under the Genocide Convention, including the obligation to prevent and punish genocide. Key cases, such as Bosnia and Herzegovina v. Serbia and Montenegro, and Croatia v. Serbia, have been instrumental in developing the legal understanding of a state’s responsibility in the context of genocide. This is why the Court’s Order indicating provisional measures focused largely on the obligations of the state of Israel to prevent and punish.

[There was no precedent for state responsibility in genocide before Bosnia and Herzegovina v. Serbia and Montenegro, in which the Court in 1993 affirmed the Serbian state’s responsibility for the Srebrenica Massacre, which was determined as a genocide. Before that, genocide was seen only through the lens of individual criminal liability.]

Are there extralegal considerations that the ICJ may feel pressured to contend with throughout the case? 

TS: The interpretation of the law is invariably a political process, albeit one that is governed by legal methodology and binding rules of interpretation. Sometimes it’s termed as an “art” rather than a “science” to betray the impressionistic character of interpretation, but I also find this distinction problematic for other reasons. The bottom line is: espite efforts to shield its internal rationality from external influences, the law, for good or for bad, tends to fall short. Therefore, “extralegal” considerations are inherently part of the legal process.

Addressing, however, your question in the context of traditional realpolitik, which I believe was its intended meaning, it’s evident that such considerations always influence judicial proceedings. The International Court of Justice (ICJ), with judges from diverse geopolitical backgrounds, cannot be completely detached from the prevailing international political climate, the legacy of the Court, or the individual and collective interests and ideologies of its judges. The complexity of cases the Court handles, involving issues of sovereignty, war, and atrocities, places it under significant political pressures by definition. Consequently, the ICJ’s function as an arbiter of international law transcends mere legal adjudication.

To better understand your last comment: is there a theoretical or practical differentiation between political acts and interpretation of the law? Or is the application of the legal dimension solely a function of the political insofar as it has to abide by a legal process?

TS: There are lots of differences, for example in terms of the authority, legitimacy, enforcement, review, checks-and-balances, and the like. My earlier remarks weren’t intended to imply that judicial actions are synonymous with personal opinion. While the term “political”’ is somewhat useful, it lacks analytical purchase in this context.

In my view, and I acknowledge that some colleagues might disagree, the act of legal interpretation is not only technical. It must of course follow binding rules, professional practices, it is subject to review, it has legal effects and consequences, it may be reviewed and appealed, it may be deemed “correct” or “incorrect”—all the above comprises the legal trade—but it is never objective in the sense of revealing the “true content” of the legal norm, because there is no such thing. My point is that multiple legal interpretations can be equally defensible from a legal standpoint, yet they might vary in terms of broader acceptance.

How do the recent developments in international law affect its future and its relationship with the international community? 

TS: The last two decades have not been marked by a decrease in the frequency or severity of violations of jus cogens norms (the highest and most inviolable norms of international law) or international crimes, let alone of pain and suffering. The discourse has paradoxically broadened the scope for “lawfare”, the use of legal systems and principles to achieve military or political objectives. This expanded legal vocabulary is increasingly employed not only to uphold international law but also to advance broader political and strategic interests, sometimes under the guise of legal compliance. This adds complexity to international relations, as legal arguments are used to justify, contest, or negotiate global political and strategic actions. This had always been the case but now the production of a plausible legal pretext is  part of a state’s preparation for armed conflict. .

Furthermore, the proliferation of international criminal tribunals since the 1990s, including the establishment of the ICC, has not met the expectations. The optimism of the 1990s has transformed into a sense of disillusionment, raising questions about the next intellectual project that will drive internationalism. The evolution of international law, while creating avenues for accountability and justice, always introduces new opportunities for oppression and the perpetuation of relationships of domination with new means.

In 2024, the prevailing sentiment, at least this is how I experience it, is not one of progress and forward momentum. Instead, there’s a palpable sense of fin de siècle—a feeling akin to the end of an era. This mood reflects a complex mix of disillusionment, exhaustion, and perhaps a critical reassessment of the aspirations and achievements of the past decades, especially in the context of international justice and human rights. The initial optimism that marked the post-Cold War era, with its significant developments in international law and the establishment of institutions like the International Criminal Court, has given way to a more sobering recognition of the limitations and challenges inherent in these global endeavors.

International law continues to serve as a tool of oppression and domination, as well as a tool of emancipation and empowerment. This is why I invite everyone to engage with international law actively and responsibly, despite its evident limitations, as a process and as a language that may still be leveraged effectively.