What is the nature of the proceedings initiated by South Africa’s request? What is the significance of the interim measures ordered? What is the difference between genocide and war crimes or crimes against humanity? Yann Jurovics, a specialist in these fields and a former jurist at the International Criminal Tribunals for the former Yugoslavia and Rwanda, shares his expertise on the issues at stake in the decision of the International Court of Justice, allowing us to appreciate the restraint of a legal approach untainted by political conflicts.
I/ The Court
K: What is the International Court of Justice and how does it differ from the International Criminal Court in The Hague? What is its jurisdiction?
The International Court of Justice (ICJ) is a very special court. Like the Security Council and the General Assembly, it is one of the six principal organs of the United Nations. Its judicial mission is to settle legal and non-political disputes between States that request it.
In this context, the two States concerned must have requested the Court’s intervention in their dispute. In the present case, by ratifying the Genocide Convention, the States accepted in advance the Court’s jurisdiction over any dispute “relating to the interpretation, application or fulfillment” of the Convention (Article IX). It should be remembered, however, that the analysis of the Genocide Convention represents only a tiny part of the Court’s work.
The International Court of Justice has dealt with nearly 200 cases since 1946. It has thus been able to issue highly respected declarations in a wide variety of areas of international law—border delimitation (Thailand/Cambodia), consular relations (Mexico/United States), questions relating to the use of armed force (Nicaragua/ United States; Congo/Uganda and Rwanda), questions of maritime delimitation, whaling (Australia/Japan), herbicide spraying (Ecuador/Columbia), jurisdictional immunities (Germany/Italy), and so on.
The International Criminal Court (ICC), which became operational in 2002, is, as its name suggests, a criminal court. It tries only individuals accused of genocide, crimes against humanity, war crimes, and, since a recent revision, possibly crimes of aggression. It does not prosecute states!
K: Is Israel on trial for genocide? If not, what is the case about?
Again, the jurisdiction of the ICJ is not criminal. Therefore, no indictment is possible before this Court. South Africa’s application, which gave rise to the current proceedings, concerns a dispute between two countries over the application of the provisions of a convention to which they are both parties, in this case, the Convention on the Prevention and Punishment of the Crime of Genocide.
Can any state that has signed a convention with other states at any time allege a violation of the convention by another state that has signed the same convention and refer the matter to the ICJ?
For a case to be referred to the ICJ, there must be an agreement between the two States concerned, i.e., the applicant State and the respondent State. This agreement may be found either in a compromise reached by the two States when their dispute has already arisen or in advance in a jurisdictional clause expressing the States’ anticipated agreement to refer the matter to the ICJ in the event of an unresolved dispute.
The prohibition of genocide is in the collective interest of humankind. We all have an interest in respecting this prohibition. It is said to be an erga omnes right. Any state party to the Convention can ask the Court to review it. This does not mean that South Africa is not playing politics in making this request, but it has the right and the legitimacy to do so. By the same token, we can only welcome Gambia’s application to the Court against Burma under the same Convention. When a case is referred to the Court, it takes about two years for the Court to decide on its jurisdiction. It must verify that states have consented, that the dispute exists, that it is legal, and that there is a basis for its jurisdiction. In this case, South Africa requested provisional measures due to the violence of the fighting. These measures are systematically granted in principle by the Court, which does not consider itself bound by the content of the request.
K: So the provisional measures are not taken following an investigation of the case by the Court? An on-site investigation, for example? What are they based on then?
No. The Court doesn’t investigate on-site. What’s more, the spell it allows itself between the filing of the application and the issuance of its order for provisional measures leaves it absolutely no time to carry out any investigative acts. It relies on a situation that is attested by official reports, as well as the petitions and briefs of the parties.
In the present case, it clearly bases the provisional measures on the humanitarian situation and the possibility for a party to invoke the Genocide Convention.
K: Can you go back over the definition of genocide?
First of all, it has to be said that the definition of the crime against humanity is nuanced in different texts—the Nuremberg Statute does not give the same definition as the ICC Statute; national laws are also very different. On the other hand, the 1948 definition of the crime of genocide is authoritative and identical in the respective statutes of all international criminal courts.
Genocide is characterized by a quasi-administrative decision, known as intent or dolus specialis, which consists of the desire to destroy one of the four protected groups (national, ethnic, racial, or religious) as such. A typical example is the decision to carry out the Final Solution at Wannsee in January 1942 (or a few months earlier, according to so-called functionalist historians). The thousands of murders of Jews before that date are therefore not genocide. Genocide is always preceded by such criminal events before the decision is made to destroy the group.
The legal definition is therefore very restrictive—intent does not equal result (disappearance is not destruction); destruction is biological and involves the death of members of the targeted group as such, and not for any other reason (strategic or economic).
In their analysis of past criminal campaigns, the experts agree unanimously to qualify only three of them as genocidal policies—that of the Armenians from April 24, 1915, that of the Jews from August 1941 or January 1942, and that of the Tutsi from April 7, 1994. No other policy enjoys the support of the majority of experts on this qualification.
K: Does that mean that even if a conflict resulted in hundreds of thousands of deaths, we wouldn’t be talking about genocide unless we could prove that those responsible for the deaths had at some point made the decision to kill those people because they belonged to a particular group?
Exactly. About eight million people have died in the Democratic Republic of Congo since 1995 and we don’t talk about genocide. There were two million deaths under the Khmer Rouge, and they’re not being prosecuted for genocide. Genocide can have a very limited number of victims, but no prosecutor is going to take the risk and use his scarce human and material resources to prove genocide with very few deaths. What makes genocide massive is the number of people targeted. The Shoah was genocide because 11 million people were targeted, regardless of the criminal outcome.
K: In the context of these days of hearings in The Hague in December, how do you feel about the many positions taken in the media by those who, without any investigation and independently of any legal analysis, peremptorily assert that genocide is taking place in Gaza? Activist groups denounce the ongoing genocide in demonstrations. Speakers on television programs say—”As far as I’m concerned, this is genocide.” Humanities scholars are more cautious about the risk of genocide. In short, it seems that “genocide” has become a word that anyone can use as they see fit, provided they want to provoke moral outrage.
These positions challenge the very idea of my profession and my expertise of almost 30 years. I find it difficult to listen to them.
The simplest response is to point out that the law applies rules, not values. This is one of the biggest shocks to first-year students when we keep referring to the rule of law. The law is not interested in their opinions, their moral intent, or even their supposed sense of justice. We don’t do all of our legal research just to pander to impulses or values that are, by definition, subjective. We seek to define coldly applicable standards.
All legal analysts and thinkers, whose works and opinions define what is known as doctrine, are attentive to the proposals of other human sciences, which often make a significant contribution to legal reflection. Our activity as legal scholars is stimulated by proposals to adopt new norms to protect other interests. Neologisms such as ethnocide, ethnic cleansing, and ecocide are flourishing… These words have no resonance in an international court, which can only refer to existing texts. But they can give rise to reflections that could, in time, lead to the judicial protection of new interests not yet taken into account by the law.
International law corresponds to the agreement of the international community on the interests to be protected. The beginnings of international criminal law go back to the criminalization of piracy on the high seas and then of slavery. It was not until 1945 that a jurisdiction was created (Nuremberg) capable of defending the interests recognized by the international community. This is a very young body of law that is constantly evolving as the cohesion between States becomes clearer.
K: And yet, the , in an article dated January 25th, says of these precautionary measures, “citing legal experts,” that in order to take them, “17 judges must find it plausible that Israel has killed Gaza residents with the deliberate aim of destroying Palestinians as a group.”
From a legal point of view, do you agree with this way of assessing the ICJ’s decision?
Absolutely not. It’s difficult to comment on an excerpt without having read the article. But it was South Africa that raised this argument.
What the court specifically points out is that there is a “right of the Palestinians of Gaza to be protected from acts of genocide,” which I hope no one would dare question.
K: For the sake of clarity, could you explain what distinguishes the crime of genocide from a crime against humanity or a war crime?
A war crime is a violation of the law of armed conflict, like the use of a prohibited weapon or method, such as siege, targeting civilians, or killing prisoners of war. It is an individual act committed by an individual. It is not linked to a policy. The superior is responsible, even if he didn’t order it, because he didn’t prevent it!
A crime against humanity is an act committed as part of an attack (or policy) against a selected civilian population. Every crime against humanity is therefore part of a policy and contributes to achieving the goal of that policy. It is thus necessary to identify the policy in order to prosecute the individual acts associated with it as crimes against humanity.
Genocide extends the logic of crimes against humanity. The targeted civilian population is reduced to a group whose destruction is the goal of the criminal policy.
That policy must therefore be established in order to prosecute the perpetrator of the act that contributes to it.
K: People often refer to intent, without which there can be no genocide from a legal point of view. Isn’t there an additional dimension to the distinction between the crime of genocide and the crime against humanity, namely the victim of the crime? In a sense, it is all of humanity that is the victim of these two crimes, but couldn’t we say that in the case of crimes against humanity, it is the humanity of individuals that is attacked, while in the case of genocide, it is the humanity of a group that is amputated?
From the point of view of the individual victims, the criminal reality changes little.
But in terms of analysis, we can say that the notion of genocide reinforces the idea of the protected group. Genocide aims at amputating the humanity of the group. The criminal policy against humanity consists rather of creating a hierarchy among human beings, some of whom are protected by the law, while others are merely the object of its oppression.
K: In addition to these categories—war crimes, crimes against humanity, genocide—the term “ethnic cleansing” is regularly used against Israel. What does it mean?
Ethnic cleansing, ethnic purification, etc., are just media terms that need to be “dressed up” legally if those responsible are to be prosecuted. Ethnic cleansing can be a war crime when it involves the illegal expulsion of populations in violation of international humanitarian law; it can be a crime against humanity when it involves the persecution of civilians (as was the case with the expelled Muslim Bosnians); it becomes genocide when “cleansing” is achieved by exterminating the group (Tutsi in Rwanda in 1994).
In fact, each individual act takes on its legal coloration according to the policy it serves.
K: Finally, a definitional question—What is the difference between “international law” and “human rights?” It seems that the non-specialist easily equates them.
International law is the law of states. They are sovereign and therefore bound only by the norms to which they have committed themselves. International law is said to be highly positivistic. It covers a wide range of areas, including ecology, maritime navigation, the status of diplomats, international justice, and international trade. Some norms apply only to states that accept them and not to others. Not all states have the same definition of maritime territory or follow the same trade rules. Certain weapons are prohibited by some states, and whatever the morality of the prohibition, it does not apply to states that have not agreed to the said prohibition.
One branch of international law, albeit a relatively minor one, concerns human rights. The French Declaration of the Rights of Man and of the Citizen, for example, differs from the American and African declarations of human rights. In this field, the most important text of international law is the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations the day after the Genocide Convention. Anecdotally, General Assembly resolutions are non-binding. It is by habit that states have gradually come to consider themselves bound by this one.
These two branches of law sometimes overlap (prohibition of torture, slavery, or retroactivity of criminal law), but they are also very different (some national laws defend collective rights (of a nation, of a minority, for example); others defend the rights of the individual or the citizen. Each of these rights may be asserted before the competent court in accordance with the applicable text.
Above all, since not all States have the same definition of human rights, the latter are not universally and uniformly applied.
III/ The proceedings and the ruling of the Court
K: As a legal expert, how do you understand the intricacies of South Africa’s claim against Israel? Are we witnessing a political conflict between the global South and the Western world, using the latter’s legal tools and values?
My job as a jurist is to dissociate myself from any activism and to apply the rule of law in a dispassionate manner.
Of course, experience with this type of trial and in-depth knowledge of the situation shows that South Africa is more concerned with its place in the international community than with international justice. One might even conclude that South Africa is trying to consolidate its position as a key player and secure a stable seat on the Security Council… However, this does not change the facts of the current case.
The search for the reasons behind everyone’s actions can only lead to temporary and partial truths, to the detriment of the objective and normative situation.
On the other hand, the comforting beauty of the law is that there is a truth beyond opinions.
Specialists know that the Court cannot turn its back on a humanitarian catastrophe. More broadly, it is the role of international law, the law of the international community, to find solutions. The entire legal community in this discipline (judges, practitioners, academics…) can easily affirm that the situation does not in fact fall within the realm of genocide and point out that technical questions arise regarding the instrumentalization of the Convention, which makes it so easy to bring a case before the Court. In two recent cases (Ukraine vs. Russia and Gambia vs. Burma), the Convention was invoked even though these humanitarian disasters involved war crimes (Ukraine) or crimes against humanity (against the Rohingyas in Burma).
As for the question of the South challenging the North, this is particularly relevant for certain politicians who are trying to buy an international image through blatant populism. It has also been said that the ICC only judges Africa…
The ICJ, like the ICC, applies the law! The judges are not concerned with the identity of the applicant. The question should rather be put to the South African government, assuming they can actually answer it…
Having practiced in many such jurisdictions (ICJ and ICTY/ICTR (International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda)), I can attest to the concern of international judges for the sole respect of legality.
The State of Israel is being asked to ensure that there is no genocide. While being reminded of its obligations, Israel is given the role of guardian of the Convention. It is never claimed that Israel has violated its obligations. The measures would not be the same if faced with a state likely, willing, or ready to commit genocide.
K: Can you analyze and explain to us what happened on Friday, January 26? What are the “provisional measures” ordered by the Court?
As I have said, the ICJ cannot remain indifferent to a humanitarian crisis, and the South African application provides the Court with the jurisdiction to take an interest in it and to order emergency actions known as provisional measures, i.e., measures designed to prevent a situation from deteriorating. Let me repeat—in similar situations, such measures are systematically granted by the Court in principle.
Given the expected media atmosphere, it should also be reiterated and emphasized that Israel is in no way the subject of any condemnation. What has happened is quite the opposite of this politico-military assertion—the State of Israel is being asked to ensure that there is no genocide. While being reminded of its obligations, Israel is given the role of guardian of the Convention. It is never claimed that Israel has violated its obligations.
The measures would not be the same if faced with a state likely, willing, or ready to commit genocide.
The Court therefore does not consider that genocide exists. Indeed, it has explicitly stated that there is nothing in the measures announced to suggest otherwise.
Israel, “guardian of the convention” against genocide, in proceedings in which it is accused by a state of committing genocide? The formula is astonishing!
The two statements are not on the same level. They contradict each other, but they can coexist because they don’t have the same role.
Accusation is a political process that serves a strategy.
Defining the scope of a state’s obligations is a legal process aimed at enforcing a rule.
For a legal scholar, the prohibition of genocide is binding on all states, and states are obliged to respect and enforce this rule. Serbia was thus held responsible for its inaction in the face of crimes committed by Republika Srpska militiamen, who were not even its own officials.
K: How then can we understand the outraged reaction of the Netanyahu government? Why does it give credence to the interpretation that Israel has been condemned for genocide and is crying foul?
All I can say about Mr. Netanyahu’s understanding is what I’ve already said—legal reality does not deal with individual feelings, which are by definition subjective. The court is trying to make a scientific judgment, to apply rules. The Israeli Prime Minister wants to make Israel a victim, probably to demonstrate his own usefulness as head of government. His position is to protect Israel against the (many) actors seeking to destroy it, whether militarily, symbolically, politically, or morally. But by using the law in this way, Mr. Netanyahu continues to damage the state he leads.
The same criticism applies to South Africa and Hamas.
There is no justice for the Palestinian people in the Court’s decision. On the other hand, there is actually a great political interest that no one is bothering to point out—the decision has actually reminded the whole world that the Palestinian people are actually a national group!
In general, it should not be forgotten that the ICJ does not bring justice. Justice would mean prosecuting the perpetrators of crimes or ensuring that reparations are paid to the victims. The International Court of Justice does neither of these things. That’s not its job. It settles disputes between states and does not deal with individuals or groups (unless their interests are legitimately defended by a state).
What can we expect from the rulings of the Court?
I hope, despite what the head of the Israeli government has said, that the State of Israel will implement the requested measures and submit the expected reports.
The first two measures requested relate to compliance with provisions of the Convention that Israel has already honored.
The other measures call for the prosecution of incitement to genocide (the President of the ICJ pointed out that Israeli judges have already dealt with this), humanitarian assistance, preservation of evidence, and the submission of a report.
The choice of whether or not to comply with these measures will be a political one. I hope it will be made in the right direction. Israel has everything to gain from it.
IV/ The Israeli-Palestinian conflict—the war and its aftermath conflit
K: Israel is a signatory to the Genocide Convention, the provisions of which include an obligation to “prevent genocide.” Can Israel argue that its current war in Gaza is to prevent the genocide of the Jewish people in Israel, given the acts committed by Hamas, which some say constitute genocidal acts?
Does it make legal sense to say that October 7 had a genocidal dimension?
The military wing of Hamas has not renounced the annihilation of the Jews. When it comes to the legal prosecution of the October 7 attack, I would personally plead genocide (in addition to other charges) and try to show that it was the beginning of the realization of the policy aimed at the destruction of the Jewish group in Israel.
The argument that the Israeli intervention was aimed at preventing genocide is an interesting one. In fact, we’re talking about self-protection. But then it would have to be demonstrated that the genocidal process initiated on October 7 is already underway, or at least imminent and that Israel’s intended destruction of Hamas is the least violent means of stopping it.
This indirectly raises the whole question of self-defense. The defense must not become an attack; it must be aimed at stopping an attack in progress.
How would you describe Hamas legally? Terrorist group? Paramilitary militia?
Hamas is a non-state armed group. So it is a military movement involved in a criminal process. Its classification can vary according to the institutions that study it. For example, it may be classified as a terrorist by a UN sanctions committee, or as an armed group by an international court investigating the crimes of its members. It is the legal regimes of these categorizations that are decisive before any entity charged with confronting the actions of Hamas members.
How do you legally qualify the fact that Hamas uses its civilians as “human shields?” Could Hamas be prosecuted for its treatment of civilians in Gaza?
This is undoubtedly a war crime. It’s not Hamas that can be prosecuted, but its members. In a court of law, those who have used the civilian population as a human shield are liable to prosecution for war crimes.
K: The Hague International Criminal Court—not the International Court of Justice—was asked by the PLO in January 2015 to investigate the Israeli-Palestinian conflict. We hear that the prosecutor in charge of this investigation immediately turned his attention to crimes committed by Hamas after October 7. Is this true?
To be more precise, on January 1, 2015, the Palestinian government recognized the jurisdiction of the International Criminal Court for alleged crimes committed “in the Occupied Palestinian Territory, including East Jerusalem, since June 13, 2014.” Palestine even became a “member state” of the ICC on April 1, 2015.
In parentheses, international law works in a decentralized and progressive manner. While Palestine is not yet a state, it is gradually acquiring state status in certain forums. For example, Palestine is an “observer state” and therefore has an incomplete status at the UN General Assembly, or, as here, while not yet a sovereign state, it can be a “state party” at the ICC.
Already on January 16, 2015, the ICC Prosecutor announced the opening of a preliminary examination of the situation in the State of Palestine to determine whether the criteria for the opening of an investigation are met (issues of jurisdiction, admissibility, and the interests of justice).
On May 22, 2018, Palestine referred to the Prosecutor the situation in Palestine since June 13, 2014, with no end date. This referral does not automatically lead to the opening of an investigation, as the Prosecutor must determine whether the criteria for opening an investigation are met, as stated in the previous paragraph.
This is what the Prosecutor concluded on December 20, 2019. However, given the complexity of the situation in Palestine, the Prosecutor asked the judges to rule on the territorial jurisdiction of the Court, which they did on February 5, 2021, concluding that the Court could exercise its criminal jurisdiction in the situation in Palestine and that its territorial jurisdiction extended to Gaza and the West Bank, including East Jerusalem. However, the judges were careful to point out that nothing in this decision could be interpreted as a process of statehood or border delineation.
On March 3, 2021, the State Attorney finally opened his investigation.
On November 17, 2023, the Prosecutor received a further referral from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti regarding the situation in the State of Palestine. He then confirmed that the current investigation covers events since October 7, 2023.
K: But then the International Criminal Court, which was referred to by the Palestinian side, is investigating crimes committed by both sides in the conflict?
To clarify the question, the Prosecutor will investigate crimes committed in the territory defined by the Court in 2021, regardless of the nationality of the perpetrators. However, we are still a long way from being able to bring individuals before the Court. It remains to be determined who can be prosecuted.
I would like to remind you that the Court has limited jurisdiction, scarce resources and adjudicates only when national courts are unable or unwilling to do so (so-called complementary jurisdiction). This last point means that a trial before national courts is almost always preferred. For example, Israel will not surrender its nationals to the Court, even if requested to do so, because the State of Israel is not a party to the Rome Statute establishing the Court and, above all, because the Israeli judicial system itself tries the perpetrators of the acts in question.
Given this peculiarity, which is well known to the actors of the Court, it seems obvious to conclude that Palestine never intended to bring an Israeli before the ICC. Rather, it seems that the Court will be used to settle scores between the Palestinian Authority and its enemy, Hamas, when Palestine becomes a state. Who knows, perhaps the PA’s game is to force Hamas to relinquish power in exchange for their refusal to hand over Hamas files on crimes of all kinds to the ICC?
K: Given the viral success of a slogan like “Free Palestine from the River to the Sea,” what can you say as a recognized expert in international law? Does this critical mass of Israel’s opponents, challenging not only its policies but its very right to exist, pose a legal challenge?
I always have great difficulty with questions of political analysis that take me out of my field. I prefer to answer that these slogans belong to those who utter them, but have no bearing on the existence of a state. Zionism and anti-Zionism, seen through this prism, are ideologies that are totally obsolete in the face of the objective existence of the State of Israel. Of course, some may regret that Israel was created, but this regret does not change the objective fact of its existence. No one would dream of denying its existence, nor of vehemently defending it. It simply doesn’t make sense.
The procedure for challenging the existence of a state exists only in the inflamed minds of these militants.
The only possible and real challenge to the existence of a state would be of a military nature, in which case it would constitute an aggression condemned by international law (e.g. Russia in Ukraine). Nothing can legally challenge Israel’s existence. In the face of military aggression, the Israeli population may rally around a heightened patriotism. But Israel may be the only country in the world where patriotism has a special name.
The PLO is the official representative of the Palestinian people and is internationally recognized as such. In the event of the creation of a Palestinian state, what would be its legal relationship with Hamas?
Any government is defined by its monopoly on legitimate force. Any other use of violence defies the said government and can be sanctioned at its discretion.
Would you say that the creation of a Palestinian state would have security benefits for Israel? We’ve just heard the Israeli minister of Foreign Affairs say the opposite.
The security benefits of creating a Palestinian state would be numerous and include the fact that:
1) Violent demands for independence would no longer be necessary.
2) The Palestinian state would be able to cooperate with Israel on regional security issues.
3) Border control will be exercised by both sides.
4) Israel will have a state interlocutor, legally responsible, with numerous and undeniable security obligations.
5) Palestine will fully comply with the UN and the rules of the international community and will be committed to maintaining international peace and security.
6) All disputes could be dealt with diplomatically and through international forums, including the ICJ!
K: What would happen if Hamas, in its political branch, won the elections in a Palestinian state? Would these security benefits persist? This is a fear that is often expressed—a Palestinian state run by Hamas.
Palestine could then be held responsible for any violation of international law. On the other hand—and this is by definition the limit of international law, which is based on the sovereignty of states—no state can be forced to adopt a particular form of government. International law therefore has no legitimacy to impose a specific type of regime—democracy, monarchy or dictatorship have the same value in terms of the exercise of sovereignty.
I hope that the destructive intentions of Hamas would lose strength and enthusiasm in the context of state activity.
However, the international community could exert pressure, as it does in the case of states whose behavior may undermine international peace and security (nuclear control in Iran, sanctions against North Korea, etc.).
Interview by Julia Christ and Stéphane Bou
Yann JUROVICS is a lecturer in international law at the University of Paris Saclay. A graduate of the ENS, he holds a doctorate in law. He was a legal officer at the International Criminal Tribunals for the former Yugoslavia and for Rwanda, and a legal reviewer at the ICJ. He is the author of a doctoral dissertation on crimes against humanity and numerous books and articles on international justice.