ICJ vs ICC: Why Israel defends itself against Gaza genocide claim - analysis

Israel has reversed a decades-old policy not to appear before the International Court of Justice to rebut South Africa’s charges that it is committing genocide against the Palestinians in Gaza.

In 2004, Jerusalem declined to appear before the ICJ when it heard and eventually ruled on the legality of the West Bank security barrier.

That decision, in some ways, blew up in the face of the Jewish state – the ICJ ruled that the barrier was illegal and theoretically might have moderated its ruling if it had heard the full case by Israel directly.

On the other hand, Israel ignored the ruling, both with the argument that it did not recognize the court’s jurisdiction and the presumption that the court was going to rule for the Palestinians anyway.

Israel is still taking this position of ignoring and denying jurisdiction with the International Criminal Court (ICC) and with the UN Human Rights Council probes.

Part of what is different before the ICJ this time – and why Israel is showing up – is that since Israel ratified the Genocide Convention, it is harder to claim that the ICJ, which interprets that convention, has no role at all.

Israel is more worried now than before

Another part of what is different is that Israel is more worried even than in other rounds of conflict that the IDF’s killing of an estimated 22,000 Palestinians (by Hamas figures, which do not differentiate between terrorists and civilians)  will permanently harm its reputation in the US and EU.

Also, Israel has been trying harder to dialogue with international judicial bodies in the last decade than it did 20 years ago.

From 2015-2021, Israel carried on an informal dialogue with the ICC, and in 2016 the ICC visited Israel and the West Bank. Last month, the ICC visited again, though on a less official, strictly humanitarian basis.

In 2018, Israel also appeared before the ICJ when it filed a “friend of the court” brief in the case of England versus Mauritius in a dispute relating to the Chagos islands.

Though that did not mark Jerusalem recognizing the ICJ’s role in the Israeli-Palestinian conflict, it did show a more positive outlook on international law outreach by the Jewish state.

But at the end of the day, the ICJ has no enforcement mechanism.

If it rules that Israel committed genocide, the US and a number of EU allies will probably express public disagreement with the ruling.

The damage will be more in the realm of the court of public opinion in the West than it will necessarily have a clear practical aspect – though it could empower a more informal economic boycott movement.

In contrast, the ICC can demand that its member states, virtually all of Europe, arrest any Israeli who it might charge with a crime.

It is one thing for Israel to hope EU countries disagree with the ICJ regarding public statements. It is quite another thing to expect them to ignore a binding arrest warrant.

From this perspective, the ICJ is the warm-up round.

 If the ICC decides to go after Israelis – and it already opened a criminal probe in early 2021, and current ICC Chief Prosecutor Karim Khan gave Israel more attention in October-November than any ICC prosecutor has in over 20 years – the impact could be far more devastating than any ICJ ruling.

Israelis could have trouble traveling abroad

Israelis could start to have trouble traveling the world. In the post-October 7th era, when the IDF might need a huge increase in soldiers wanting to join combat units to boost border defense, more soldiers may be discouraged by the threat of facing international arrest warrants for them personally.

This means that Israel will want to continue its two primary arguments against ICC intervention: 1) There is no basis for intervention because there is no Palestinian state recognized by the UN Security Council to refer the case to, and 2) there is no basis for intervention, because of Israel’s apparatus to self-probe its own alleged violations of the laws of war.

To date, Israel has found ways to make its arguments to the ICC without appearing officially, and this will probably remain its strategy for the time being. However, if Israel loses before the ICJ, problems before the ICC will become far more likely.

True, the ICJ judges state and general issues of law, which means its burden of proof is lower, while the ICC judges individuals based on the beyond-any-reasonable-doubt criminal law standard, a much higher bar.

But in a world where international law is still fluid, the impact on the ICC of losing before the ICJ is clear.