The International Court of Justice in The Hague today made an initial ruling, four weeks after an application from South Africa that accused Israel of committing genocide against Palestinians. The court ordered Israel to ensure that its military does not commit acts of genocide against Palestinians, to immediately improve humanitarian aid to Palestinians, and to prevent and punish genocidal incitement against Palestinians.
However, the court stopped short of ordering Israel to end its military operations against Hamas, a nod to Israel’s right to respond in self-defense after the deadly Hamas attacks on Israel on October 7. South Africa had hoped the court would order such a cessation, in effect ruling in favor of an immediate cease-fire in Gaza. The court did also call for the immediate release of Israeli hostages held by Hamas.
Given the dreadful toll of civilian deaths in Gaza, reportedly now topping 25,000, Israel should answer questions about its conduct. Every member of the United Nations’ 1948 Genocide Convention has an obligation to raise concerns if they have evidence that a group of people is at risk of genocide. Given previous catastrophic failures to prevent genocide—in Bosnia, Rwanda, Darfur—more referrals to the court could be good news for the protection of civilians at risk. And unlike Russia, against which Ukraine made a complaint to the court in February 2022, Israel has indicated that it takes the charges seriously, attending the court to dispute the accusation.
In my work for the Aegis Trust, a U.K.-based nonprofit devoted to preventing genocide, I use the tools of advocacy and communication in efforts to stop the worst from happening. But I am acutely aware that persuasion can do only so much; the deterrent effect of legal sanctions and criminal justice is vital to the cause.
For the law to provide justice, however, it must be fairly and evenly applied. South Africa’s case raises the question of why Israel is accused of genocide when Hamas is not.
The fighting in and around Gaza is an asymmetric conflict, but there are two sides. Against the accusation of genocide, Israel says it is acting in self-defense, and this latest round of fighting began when Hamas slaughtered some 1,200 men, women, and children—even infants in their cribs—on October 7. Moreover, unlike Israel, which denies any genocidal intent, Hamas has publicly espoused genocide against Israelis for decades.
The asymmetry of the conflict has legal bearing, exposing a grave loophole in the international legal system. Hamas cannot be called before the International Court of Justice, nor can any government of Gaza, nor even Palestine, which is not a fully sovereign state and has only observer status at the United Nations.
In other words, nonstate actors can threaten genocide and even act upon that threat and avoid the accountability that applies to sovereign states. Although the court has rightly enjoined Israel to prevent genocide against Palestinians and punish its incitement, no authority has ordered the Gazan government to prevent genocide against Israelis and punish its incitement, which occurs daily; no orders have been issued for Hamas to stop firing rockets at Israeli civilians, which continues; and no order has come down for Hamas to prevent genocidal acts by its fighters.
Individuals representing such nonstate actors can be prosecuted by another court at The Hague, the International Criminal Court. That body has its drawbacks: In its 21-year history, it has brought only about 30 cases and successfully prosecuted a bare handful of them, principally against militia leaders for war crimes in African countries. But the court has established important precedents of individual accountability: It had a case against Muammar Qaddafi, Libya’s genocidal leader, at the time of his death; and it has a case open against Sudan’s former president Omar al-Bashir, on charges relating to genocide in Darfur.
The International Criminal Court has begun investigations into both Hamas and Israel. It may take years to bring criminal charges of genocide or war crimes, but the court should now get redoubled support from its signatory countries to expedite these investigations.
South Africa unequivocally condemned Hamas’s October attack, but its application to the International Court of Justice fails to mention that Hamas was established with the explicit purpose of destroying the Jewish state. In the 84 pages of the application, only a couple of paragraphs refer to the massacre of those 1,200 people, the majority of whom were Jewish and civilians. No reference appears to the horrific sexual violence perpetrated against Israeli women, nor to the numerous acts of torture and desecration of corpses, all of which has been widely reported and documented.
The South African legal team argues that this context does not matter: The threat of genocide or terrorism may give Israel a right to defend itself, but it does not provide legal or moral justification to commit crimes against Palestinian civilians. This is incontestable, yet diminishing the role Hamas is playing in this conflict has serious consequences. The court needs to recognize the genocidal threat that Hamas represents even as it requires the Israeli government to account for why so much of Gaza has been turned into an uninhabitable wasteland and why so many Palestinian civilians have been killed.
Short-term impunity for Hamas may be unavoidable, but propagating a culture of impunity is contrary to the cause of international law and justice. Selective application of legal statutes against war crimes and genocide runs counter to the very universalism that underpins such protections.
Being selective about whom it calls out for international crimes is not new for South Africa. This genocide case is the first that the country has brought to the court. Survivors of the Darfur genocide must be bewildered that South Africa would bring an action against Israel yet fail to have done so against Sudan. In fact, South Africa specifically declined to act on the International Criminal Court’s warrant for the arrest of al-Bashir when he visited the country in 2015. Instead of sending him to The Hague, South Africa allowed him to return to Sudan. That same year, al-Bashir added to his genocidal record by providing aid for the paramilitary Rapid Support Forces in their war in Darfur, where they burned villages and raped women.
South Africa’s selectivity has continued to this day. The RSF’s warlord, known as Hemedti, recently undertook a tour of African countries. Just days after South Africa submitted its application against Israel, Hemedti was welcomed by South Africa’s president, Cyril Ramaphosa. As the two shook hands, Hemedti’s militia was completing its decades-long campaign of ethnic cleansing in Darfur.
In light of such partial application of international law against genocide, Israel may well feel unfairly targeted. Many in Israel believe that the war in Gaza must be pursued until Hamas is finished. But even if that aim is achieved, the horrors of the present conflict are radicalizing a new generation of Palestinians. That outcome will only set the stage for perpetual war, a bad security strategy for any state’s long-term survival. Similarly, failing to acknowledge the threat posed by Hamas against Israeli civilians only entrenches divisions, pushing Israeli centrists further right.
The Israeli-Palestinian conflict can be solved, but not through polarized claims that alienate moderates willing to engage in dialogue and work toward a resolution of conflict. Today, peace between Israel and Palestine seems impossible to imagine. Yet, in my work, I have witnessed perpetrators and victims coming together in Rwanda. If peace is possible there, it is possible anywhere.
The process begins with accountability and justice. Israel has done the world a great service by submitting to the legal process. Although the same hard questions about genocide have not been asked of Gaza’s rulers, Hamas’s time in court must also come.
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