‘Really cautious': why the ICJ is delaying a Gaza genocide verdict

The Guardian

5 days ago

While Palestinians in Gaza die in ever-increasing numbers from starvation each day and a growing number of legal scholars, aid officials and politicians have begun describing Israel's actions as genocide, a definitive ruling on the question by the world's top court will be a long time coming.
Experts on the International Court of Justice (ICJ) said a judgment on whether Israel is committing genocide in Gaza is unlikely before the end of 2027 at the earliest, amid warnings that the international community should not use the court's glacial proceedings as an excuse to put off action to stop the killing.
Israel was originally due to present its rebuttal to the genocide charge brought by South Africa on Monday, but the court has granted its lawyers a six-month extension. The panel of 17 judges accepted Israel's argument that it needed more than the nine months allotted to prepare its case, because they claimed 'evidentiary issues' in South Africa's presentation meant 'the scope of the case remained unclear'.
The South African legal team countered that none of the arguments given by Israeli lawyers were a legitimate reason for delay, and dragging out the case was unjustifiable in view of the humanitarian emergency in Gaza. But the court sided with Israel, which now has until next January to present its case.
'I think [the ICJ is] being really cautious here because of the political climate,' said Juliette McIntyre, a senior lecturer in law at the University of South Australia. 'They don't want to be accused of just running roughshod over Israel's procedural rights and finding that it's committed genocide without fully giving them an opportunity to respond.'
Since its founding in 1945, the ICJ has always favoured circumspection over speed in its role as ultimate arbitrator between nations.
'The ICJ is known for its slow deliberation. It is 80 years old and it wants to work in a certain way,' said Iva Vukušić, assistant professor in international history at Utrecht University.
After Israel presents its defence next January, each side would typically be given time to put together a further round of arguments to counter each other's points and new developments.
'The second round is usually around six months each, so that's another year, and then that brings us to January 2027,' said Michael Becker, who served as a legal officer at the ICJ from 2010 to 2014, and who is now assistant professor of international human rights law at Trinity College Dublin.
'If everything were to go smoothly and you don't have any other intervening events or interruptions to the procedure, you'd have a hearing sometime in 2027, probably early enough in the year so that you could have a judgment by the end of the year.'
A range of factors could drag the case into 2028 however, including demands by other countries to intervene.
The ICJ does have a tool to address the mismatch between the tempo of its proceedings and the urgency of catastrophic situations like Gaza. In 2024, it issued three sets of 'provisional measures', in the form of instructions to Israel, responding to South Africa's requests.
In January last year, the ICJ ruled that the claim of genocide was 'plausible' and acknowledged 'the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the court renders its final judgment'.
It ordered Israel to 'take all measures within its power' to stop acts of genocide, and incitement to genocide from being committed and take 'immediate and effective measures' to allow aid into Gaza.
In March 2024 it added more measures demanding humanitarian assistance should be allowed to enter, and in May, it ordered the Israeli offensive on the southern city of Rafah to cease and the Rafah crossing from Egypt to be reopened to aid deliveries.
Israel almost entirely ignored the provisional measures and rejected the genocide accusation as 'outrageous and false', and South Africa has sought no further measures, despite the periods of total blockade Israel imposed on Gaza this year. According to a source close to its legal team, the intense pressure from Washington has had an effect.
In February, Donald Trump issued an executive order halting aid to South Africa, castigating it for its stand at the ICJ, made alleging, without evidence, that the country's white Afrikaners were 'victims of unjust racial discrimination'. The South African government has insisted it has no intention of dropping the Gaza case however.
Quite apart from the ICJ's deliberately ponderous pace, is the very high standard of proof required to arrive at a genocide judgment. On the page, the 1948 Genocide Convention does not set a high bar, defining genocide as the intentional destruction 'in whole or in part' a national, ethnical, racial or religious group.
In its interpretation of the convention however, the ICJ has required 'fully conclusive' evidence that an accused state had genocide intent in committing mass killings and there were no other feasible, competing motives, such as counter-insurgency or territorial acquisition. Under that standard, the court has yet to rule against any country for genocide.
The current panel of judges have an opportunity to moderate that daunting standard in a genocide case which will precede Gaza – Myanmar's atrocities against the Rohingya people, which is expected to start hearings early next year.
Even without a change on the ICJ benchmark, a growing number of legal scholars believe that in its actions in Gaza, Israel is crossing even that high bar.
'While it's really slow and frustrating, one of the benefits of [the ICJ's deliberate pace] is that when the court, almost inevitably I think at this point, finds that Israel has been committing genocide, we will be able to say that there is no doubting this conclusion,' McIntyre said.
Whatever the outcome, many experts in international humanitarian law argue that a fixation on a genocide verdict could be a dangerous distraction, delaying decisive action by the international community as it waits for an ICJ verdict while demonstrable crimes against humanity are allowed to continue.
'The problem with this kind of fixation is it contains a kind of underlying suggestion that if it doesn't meet the legal definition of genocide, it's OK,' Becker said. 'It causes people to lose sight of the fact that if we're talking about genocide, we're already in a very grave situation to start with. It shouldn't actually require genocide for there to be an obligation to step in or to take action.'