Q&A | Genocide Scholar Mike Brand on the ICJ Ruling

By | Feb 08, 2024

ICJ Genocide Ruling: What it Means for Israel and Gaza

Israel’s retaliatory invasion of Gaza in the wake of Hamas’s October 7 strike has resulted in more than 25,000 Palestinian deaths and the displacement of most of Gaza’s 2 million residents. At the end of December, the country of South Africa—which has had strong ties to the Palestinian cause ever since Nelson Mandela came to power in 1995—charged Israel with genocide at the International Court of Justice. Although the word “genocide” has been used since October 7 by people on both sides of this issue, the characterization of Israel’s invasion as such had become an increasingly common rallying cry by pro-Palestinian activists even before South Africa’s move. 

This court proceeding, however, marks the first time since the word’s invention by Holocaust survivor Raphael Lemkin and the subsequent adoption of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide that Israel has been formally implicated. Although Israeli and Jewish leaders have dismissed these charges as outrageous, on January 26, the International Court of Justice found the charge of genocide “plausible,” and issued a preliminary ruling ordering Israel to comply with the Genocide Convention, punish incitement, and allow more humanitarian aid into Gaza. Both sides have characterized this ruling—which is only the first stage in a long process—as a victory.

Mike Brand is an expert on the study of human rights and genocide, having worked for non-governmental organizations in the United States, Rwanda and South Sudan, as well as conducting fieldwork in the Democratic Republic of the Congo and Uganda. A descendent of Holocaust survivors, Brand is a senior fellow at George Mason University’s Raphaël Lemkin Genocide Prevention Program and currently teaches genocide studies and human rights at the University of Connecticut. 

In this conversation, Brand talks with Moment Digital Editor Noah Phillips about the case against Israel at the International Court of Justice (IJC).

Will the ICJ ruling change anything about how Israel is acting?

Unfortunately, I doubt it. Israel has previously ignored ICJ rulings regarding the border wall. Leaders have flouted the court’s jurisdiction ahead of the proceedings and after. Frankly, it doesn’t help that the United States continues to scoff at the ICJ case despite the fact that the State Department has admitted it has not even conducted an assessment to determine if Israel has violated international law. Continuing to provide arms to Israel without conducting such an assessment may be a way to avoid complying with the United States’ Leahy Law and Biden’s own Memorandum on United States Conventional Arms Transfer Policy, which prohibit the transfer of arms to armed forces that are suspected of committing gross human rights violations and mass atrocities (war crimes, crimes against humanity and genocide). 

There was a previous ruling in 2004 by the ICJ against Israel for the wall between Jerusalem and the West Bank. That case was referred to the ICJ by the United Nations. The ICJ ruled that the wall did violate international law, and they demanded that Israel take it down and pay reparations for any damages that were incurred. Obviously, that did not happen; Israel ignored the ICJ’s ruling and completed the wall. I think this specific case is a good indicator of whether or not Israel would comply in any way, shape or form with this ruling. 

This is the challenge with international law—there’s not a lot of teeth with it always, but there could be down the line. 

Aharon Barak, the judge from Israel who is a controversial figure in Israel in his own right, voted in favor of two of the orders—specifically the order to punish incitement and to allow more humanitarian aid into Gaza. What’s your take on that?

From a general standpoint of being from Israel, it’s not surprising that Barak would vote against the first two decisions about the Genocide Convention—but then he supported the prevention and punishment of direct public incitement? That’s kind of interesting to me. And in some ways, it’s saying, “Look, Israel is not committing genocide; our military doesn’t do that.” But almost tacitly acknowledging that there are people within the ranks that are advocating for genocide. Itamar Ben-Gvir, Betzalel Smotrich and others are clearly out there saying a lot of pretty terrible things—and not just them. And obviously the South Africa case used a lot of their own language to say, “Hey, they’re inciting genocide.”

The ICJ order obliges Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II of this [the Genocide] Convention,” including killing members of the group. How is this different from ordering an immediate and unilateral ceasefire?

Good question. It is different because the ICJ ruling specifically refers to the Genocide Convention—i.e., the intent to destroy the group in whole or in part. The order doesn’t state that Israel cannot kill any Palestinians, it says that Israel should ensure it is not committing genocide as articulated under the Genocide Convention, which includes killing members of the group with the intent to destroy in whole or in part as well as other actions. That’s the key. And this isn’t new. As a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Israel is already legally bound by the convention. 

So it’s not saying Israel can’t kill any Palestinians. Obviously, in a perfect world, nobody would be dying anywhere.

Do you think Israel will comply with the order to submit a report within a month detailing what it’s doing to follow the Genocide Convention?

It would not be smart for Israel to just completely ignore it, because they could provide whatever report they want. So from a strategic position, because this case is still ongoing—this was just the provisional ruling—it would make sense for them to produce a report and then be able to use that in the next round of the court case. If they don’t produce any report, then South Africa has another chip in the pile to say “Hey, they’re not even following the rules that were given to them.” Then the question is: Why are they not following the rules of the ICJ?

In conversations with Israeli friends of mine there’s a tension of wanting to live up to the values of human rights and also not wanting to die, right?

How will the ongoing statements by Ben-Gvir and other politicians in Israel impact the case?

In some ways the most damning parts of South Africa’s oral argument and written brief were those from top Israeli officials, from the prime minister, cabinet officials, members of the Knesset, etc. Remember, under the Genocide Convention it’s not just genocide that is a punishable offense. Article III also includes conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. The horrible rhetoric from some within the top ranks of Israel’s government could be considered incitement to commit genocide. And in cases where you have top officials saying one thing and then IDF soldiers in Gaza taking certain actions, or even filming themselves parroting the words of these government officials, it makes it much easier to draw a line between officials’ words and IDF actions. In past examples of criminal proceedings where individuals were found guilty of these crimes, this is how the case was made.

Now, the ICJ is not a criminal court. But packaging that evidence together helps South Africa make its case and makes it much harder for Israel to argue there is no genocidal intent. 

If Israel really wanted to show good faith, I think the lowest bar would be for them to either take some people out of the government or actually try to hold some people accountable—such as charging them with incitement. Israel would have to put some distance between itself and some of the worst offenders of genocidal rhetoric.

If push came to shove, and Netanyahu tried to hold Ben-Gvir and these others accountable, couldn’t Ben-Gvir could wreck the coalition and possibly gain more power himself?

There’s not a great answer, unfortunately, because there’s the moral, legal decision and then there’s the political decision.

What do you think is the likeliest outcome?

I think you’d be hard pressed to not be able to find evidence of war crimes and potentially crimes against humanity being committed. Genocide is a much harder thing to prove—especially because it’ll be intense. I doubt that it’s going to come to a situation where the ICJ says, “Yes, for sure; genocide occurred.” But, it’s possible—depending on how much longer this goes on and where this case ends up. This case could take years, and if we see Israel actually attempting to displace Gazans and subsequently resettling parts of Gaza, then more evidence could be added to the idea that they were “intending to destroy.”

If Israel hypothetically, in a few years, cuts and resettles half of Gaza in order to push Palestinians into a much smaller component of Gaza, then that’s basically the definition of ethnic cleansing. 

What role are Holocaust narratives and the trauma resulting from October 7 playing in all of this?

One of the key drivers of any kind of mass violence, not necessarily just genocide, is often the real or perceived threat of the destruction of your own people. We’ve seen throughout history that groups of people, governments and individuals justify violence against another group of people because they perceive that they’re under existential threat. “We need to do whatever is necessary in order to save ourselves.”

In conversations with Israeli friends of mine there’s a tension of wanting to live up to the values of human rights and also not wanting to die, right? There’s this real, visceral threat, and then also the question of having to justify whether it’s genocide when it’s pretty clear that what’s happening is horrible.

This isn’t new, either. During the Darfur genocide in early 2000s, the violence started with an uprising from Darfur-led militia groups against the government. And afterwards, nobody said, “Well, it’s their fault. They deserve what’s coming to them, because this militia rose up against the government.” For the Uyghurs in China, there have been militants on the Uyghur side that have committed acts of violence; nobody is then saying it’s all the Uyghurs’ fault because of that. 

With the Rohingya in Myanmar, it’s the same kind of thing. There are militants on the Rohingya side that have fought against the Junta regime. But nobody has then said, “Well, they’re all part of the same militia. So all men, women and children should be killed.” There’s a different mentality amongst Jews when it comes to Israel and Gaza. There are Jewish communities that advocate for ending those various forms of genocide and mass atrocities in those other examples, but have a very different approach when it comes to Gaza.

What else do you think is important about the ICJ ruling?

I think it’s interesting that there are some individuals who think that this case is ridiculous—including some folks in the U.S. government who have said there’s no merit to this charge. The U.S. government has admitted that they haven’t even done their own assessment. If you actually read the words in this case—many people haven’t and are consequently saying the wrong information online—the ICJ didn’t explicitly say that Israel is committing genocide—they said that it’s plausible; there’s enough evidence to suggest that genocide could have been committed. 

So the fact that the ICJ is urging Israel to prevent the commission of acts in accordance with Genocide Convention should be something everybody’s on board with, right? Normal, rational humans should be on board with the idea that Israel should not be trying to commit genocide in Gaza. And that’s more or less what the ICJ is ruling.

Is this a turning point for the world’s perception of Israel? 

Honestly, I think the people who are already invested in what is happening in Gaza are paying close attention to the ICJ case. Others are completely oblivious to it or purposefully ignoring it. I’ve spoken to some Jewish family and friends who haven’t seen or heard much of anything about the case and haven’t taken the time or effort to read or watch anything about it. So on a few sides I think people’s minds have been made up before and regardless of what comes from this case. 

I think it will be important for the historical record and it is important, in any context not just Israel, to have strong scrutiny over how a country conducts military operations, especially when there are disproportionately high civilian casualties. International law must apply to all equally, and I think that’s where we as a global community fail to live up to the purpose of international law. 

This story is part of a package on the International Court of Justice and the ongoing genocide case brought there by South Africa against Israel. Other stories in the package are:

Opening image courtesy of Mike Brand

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