Legal expert Lisa Wiese: Israel’s “serious violations of international law” are obvious

South Africa has brought a case before the International Court of Justice accusing Israel of violating the Genocide Convention. Israel has categorically rejected the accusation. How do you see this from a legal perspective?

In its preliminary decision of 26 January 2024, the ICJ largely approved the request for the indication of provisional measures by South Africa and obliged Israel to comply with six provisional measures. This means that potentially imminent violations of the Genocide Convention were found to be plausible. Only two of the 17 ICJ judges were of the opinion that South Africa’s accusation of Israeli violations of the Genocide Convention was not plausible.

It is important to understand the court did not find that the Genocide Convention had been violated. It only examined the circumstances that justify the indication of binding provisional measures and whether there is an urgency to adopt provisional measures, i.e. the risk of irreparable harm to the Palestinian population. In the merits phase, the court will then have to face the enormously difficult and complex challenge of examining the evidence of genocidal intent. 

In the complex situation of military confrontation, and especially in view of the political and historical context of the conflict, it will be extremely difficult for the court to analyse documented actions and statements and to classify them precisely under the crime’s strict prerequisite of wilful intent. In addition, some warn against imposing a judicial solution on the conflict, which they argue is actually of a political and territorial nature. What is needed instead is a diplomatic effort and negotiations between the parties concerned. Having said that, past experience shows that so far those parties have been unable to find a lasting solution to the conflict and are now falling back into an existential  fight. The judicial examination could therefore be a first step towards an objective legal clarification of any shortcomings in terms of responsibility and justice, the results of which could then be thrown into the ring for inter-party negotiations. 

Are Israel’s actions in Gaza compatible with international law?

To answer this question, it is necessary to distinguish between international peace law and international humanitarian law. The latter applies in the case of armed conflict, i.e. war. Under international peace law, the use of force is strictly prohibited, except in cases of self-defence. When a state has to defend itself against an armed attack, as in the case of Israel, the use of force is justified as an act of defence if it is proportionate. The scope and impact of the defensive strike must therefore not be disproportionate to the first strike, the attack by Hamas. It is determined objectively according to legal standards, namely the nature and intensity of the warfare, the total damage done and the expected damage to the first attacker. In view of the high number of victims (35,000 dead, including a very high number of children and women) and the deliberate destruction of hospitals, educational and cultural institutions and civilian infrastructure, violations of the principles of international humanitarian law are clear, but ultimately the final assessment depends on the specific case. 

How could an arrest warrant issued by the International Criminal Court against Israeli Prime Minister Benjamin Netanyahu affect Germany? If he were to visit Germany, would Netanyahu be in danger of extradition?

If the three judges of the Pre-Trial Chamber of the International Criminal Court agree to the Prosecutor’s request and issue arrest warrants for Israeli Prime Minister Netanyahu and his Defence Minister Gallant, all 124 states that have submitted to the ICC’s jurisdiction – including Germany – will be legally bound by them. This means that Germany would have to arrest the Prime Minister and extradite him to The Hague, the seat of the ICC, if he travelled to Germany.

It is not inevitable that the ICC will issue the arrest warrants, but it is very likely because there is a great deal of evidence. Here, however, we are not talking about the allegations of genocide, but about other international crimes: war crimes, such as starvation of the civilian population as a means of warfare, wilful killing and cruel treatment, wilful attacks against the civilian population, and crimes against humanity, such as persecution and other inhumane acts. 

In principle, the German government is a strong supporter of the ICC and international criminal jurisdiction as a means of closing accountability gaps. At the same time, the German raison d’état means standing up for the protection and security of Israel. The German government has repeatedly assured Israel of its full solidarity and support, especially since the Hamas attack on 7 October. 

At the government press conference on 22 May 2024, government spokesperson Hebestreit said in response to questions about the implementation of ICC decisions that the federal government would of course “abide by the law”. Whether Prime Minister Netanyahu would actually be extradited is ultimately a matter with a political dimension and should be assessed by the relevant political experts. 

One way out of the German dilemma, however, might be for Israel to seriously prosecute the relevant crimes domestically and bring them to trial. The principle of complementarity would then apply, according to which the ICC may not act if a state is willing or able to seriously prosecute certain serious crimes. However, the Israeli response – the condemnation and rejection of the potential arrest warrants – indicates that domestic prosecution is highly unlikely in the absence of an admission of guilt.