Israel is accused of genocide at The Hague. But what happens next? Experts weigh in

South Africa formally accused Israel of committing genocide in Gaza and asked the International Court of Justice to order a suspension of hostilities, which have left tens of thousands of Palestinians dead, Gazan officials have said.

The case, which strikes at the heart of one of the world’s longest simmering conflicts, could result in serious legal and political ramifications for Israel and its allies, experts told McClatchy News.

But, while the court may soon issue provisional measures, the full case is likely to drag on for years.

Bringing the case

South African officials filed its case with the International Court of Justice (ICJ), the U.N.’s top court established at The Hague, on Dec. 29, nearly three months into Israel’s war with Hamas.

“Acts and omissions by Israel,” South African officials said, “are genocidal in character, as they are committed with the requisite specific intent…to destroy Palestinians in Gaza...”

Both South Africa and Israel are party to the Convention Against Genocide, a treaty over which disagreements can be adjudicated by the ICJ, Ian Hurd, a political science professor at Northwestern University, told McClatchy News.

The treaty “requires all countries to prevent genocide and to prosecute anyone suspected of committing genocide (or organizing it, or attempting it, or conspiring over it),” Hurd said.

Provisional measures

South African officials have requested that the court to take action soon and to issue provisional measures, which could require Israel to cease hostilities before the case is fully resolved, Robert Goldman, a professor of law at American University Washington College of Law, told McClatchy News.

“Think of them as very much like an injunction, where a court requires a party to do or not to do certain things, pending its decision on the merits,” Goldman said.

Requests for these measures are filed when a party believes “irreparable harm” will be committed without immediate action, Rebecca Hamilton, also a professor of law at American University Washington College of Law, told McClatchy News, adding that these cases are prioritized by the court.

Composed of a panel of 15 judges, the court held hearings on these measures on Jan. 11 and 12.

During these hearings, representatives for Israel argued that the country is “in a war it did not start and did not want” and that it is seeking to minimize civilian casualties, while Hamas attempts to maximize them.

Following the hearings, the court will either dismiss the case — an “improbable” possibility — or accept some or all of South Africa’s requested provisional measures, Goldman said.

“The most likely result, if the Court finds for South Africa, is that the Court would demand that Israel live up to its obligations under the treaty, specifically by stopping whatever acts it is committing that constitute genocide or conspiracy for genocide,” Hurd said.

This ruling would also likely include measures requiring unimpeded humanitarian relief to Gaza, whose population is already on the brink of starvation, Goldman said.

Response to provisional measures

While the decision will be legally binding, the court does not have a police force or other enforcement mechanism, meaning Israel will not be forced to comply with any ruling that comes down, Hurd said.

However, “in the past, countries have a pretty good record of abiding by the decisions of the ICJ, even when the Court finds against them,” Hurd said.

Still, there have been instances when countries have disregarded ICJ rulings, Goldman said.

Russia, for example, ignored the Court’s March 2022 provisional measures to cease all military operations in Ukraine, undermining the court’s authority, Goldman said.

Looking farther back, the U.S., too, has a history of spurning the court’s orders. In 1979, when the U.S. brought a case against Iran over the taking of American hostages, the court ordered both parties to refrain from any actions that would alter the status quo.

“Nonetheless, President Carter, ordered what was the abortive attempt through military action to rescue the hostages,” Goldman said. “And that was in violation of the provisional order.”

If Israel adopts a similar playbook and disregards the court’s orders, it would not be without ramifications, though, Goldman said.

“This could create additional pressure if Israel is seen as violating provisional orders,” particularly for Israel’s allies, Goldman said. If the Biden Administration continued to support Israel, then the U.S. would “implicitly become complicit with that violation,” which would likely damage the president’s credibility.

Concluding the case

Following a decision on provisional measures, the next phase of the process would deal with preliminary objections, Goldman said.

At this point, Israeli officials would offer a defense through written and oral proceedings, Goldman said. They could argue that the court does not have jurisdiction or that the country is engaged in a war of self-defense.

Then, if the court accepts that it has jurisdiction, it would decide on the merits of the dispute, namely whether Israel has committed genocide or not.

This process will take years, Goldman said, noting that the ICJ has never before ruled that a state has engaged in the crime of genocide.

However, if the court does break with precedent and rules against Israel, it could order that reparations be made to victims, Hamilton said.

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