Israel has been convicted of genocide by protesters at Columbia and UCLA, but its genocide case before the International Court of Justice is still pending. Israel remains officially aghast that it, and only it, is subject to judicial proceedings for the crime of genocide—and that the ICJ’s rulings so far have implied that the judges think Israel might be guilty of the crime of crimes. According to reports this weekend, the International Criminal Court—a separate body that hears cases against individuals—is preparing arrest warrants for Israeli officials and possibly Hamas leaders. In the ICJ, Israel stands alone.

In January, the judges stopped short of ordering Israel to stop fighting in Gaza, but they voted 15–2 to remind Israel of its obligations under the Genocide Convention. Among the judges voting with the majority was the German jurist Georg Nolte. His written opinion was curiously apologetic. He called the whole situation, including the atrocities committed by Hamas on October 7, “apocalyptic.” He noted, correctly, that the case before him was not about “possible violations of the Genocide Convention by persons associated with Hamas.” The ICJ hears cases between and against states, and Hamas isn’t one. “While these limitations may be unsatisfactory, the Court is bound to respect them,” he wrote. “I would like to recall, however, that persons associated with Hamas remain responsible for any acts of genocide that they may have committed.”

[James Smith: The genocide double standard]

Was this a coded suggestion? Without consideration of the October 7 attacks, something is missing from the ICJ proceedings, and Nolte is not the only one to sense an omission. The case is going forward almost as if the Gaza war were not preceded by, and in retaliation for, an attack that itself resembled genocide. Israel’s defenders, including its legal team at the ICJ, have complained that the proceedings tell only half the story, and that a full assessment of the facts would demand consideration of Hamas’s actions, too.

There is a simple remedy for this problem: Charge Palestine with genocide, and let the ICJ hear both cases at once.

The idea is not mine. I first heard it from David J. Scheffer, a senior fellow at the Council on Foreign Relations who served in the Clinton administration as ambassador at large for war-crimes issues. At least three of the judges’ opinions, he told me, suggested that they were “uncomfortable arriving at a determination on the merits of this case, when a large component of the entire situation is not on the table.” Nolte hinted at this view most strongly. The declarations of judges from Uganda and India also noted the absence, as did the judge designated by Israel, Aharon Barak. Scheffer said a parallel case against Palestine “would be to the advantage of the court and, frankly, facilitate their ability to reach a decision” that enjoyed a broad legitimacy.

Every international lawyer I spoke with about this idea called it wild and implausible. Foremost among the objections is the fact that the international representative of the state of Palestine is the Palestinian Authority, not Hamas. The PA is not just not Hamas—it is directly opposed to Hamas, which slaughtered PA members when it seized control of Gaza in 2007.

Irrelevant, Scheffer says. “Hamas members are nationals of the state of Palestine, which is party to the Genocide Convention.” The Genocide Convention obligates its parties (including Israel and most other countries) to prevent, investigate, and punish genocidal acts. The failure to prevent and punish was enough to convict Serbia of genocide in a case before the ICJ in 2007. If Hamas committed genocide on October 7, then Palestine was obligated to stop it and punish its culpable members. Palestine has manifestly failed to do so, with even token gestures. Palestine “is supposed to prevent you from committing genocide, even if you’re a terrorist,” Sheffer told me. “Its duty is to prevent and punish genocide. And I don’t think there’s a record of any punishment [by the PA] of any Hamas member.”

Others doubted that Palestine was even subject to the ICJ’s jurisdiction, because the state of Palestine is not a member of the United Nations General Assembly. It is a “nonmember observer state.” Sheffer points out that this question comes close to being resolved by a statement, helpfully posted on the ICJ’s website, from the state of Palestine itself, consenting to the ICJ’s jurisdiction. In 2018, Palestine went to the court to object to the Trump administration’s decision to move the U.S. embassy from Tel Aviv to Jerusalem. In doing so, it declared that it “accepts all the obligations of a Member of the United Nations” with respect to the ICJ. Moreover, Article IX of the Genocide Convention—which Palestine joined in 2014, and Israel joined in 1950—specifies that the ICJ will hear any cases concerning genocide.

Eliav Lieblich, an international-law professor at Tel Aviv University and a critic of Israel’s conduct of the Gaza war, pronounced the idea of instituting a genocide case against Palestine “theoretically interesting” but “a political nonstarter.” Cases have to be brought to the court by a state, as South Africa did against Israel. Lieblich noted that any state bringing a case against Palestine would, in effect, be recognizing the Palestinian state. You can’t prosecute a state whose existence you deny. That catch-22 favors Palestine: Countries that recognize Palestine tend to be on Palestine’s side, and therefore disinclined to prosecute it at the ICJ.

[Graeme Wood: Israel’s bitter bind]

But plenty of countries could still bring the case. Of the 193 members of the UN General Assembly, 151 have joined the Genocide Convention. Of those, more than 100 recognize the state of Palestine. Remove from that list the countries that are so pro-Palestine that they would never bring such a case, and at least 30 countries remain, including Cambodia, Paraguay, and Poland.

Any of these countries could start proceedings. But who would want to? (“We have enough problems,” one official from a country on the list replied when I asked if his country would be game.) Longtime critics of Israel have treated South Africa as heroic for stepping up to prosecute Israel. Any country that prosecuted Palestine would probably risk the opposite effect on its reputation.

But Scheffer urges countries to think strategically about the effect of bringing a case against Palestine. Doing so would greatly influence the proceedings against Israel, he says, and that influence “is not necessarily to the detriment of South Africa’s position.” Israel’s complaint that it is lonely in the dock vanishes instantly if it has company. Judges would be more inclined to rule against Israel, Scheffer suggests, if they did not feel that they were singling out the Jewish state. “If they could also look at the evidence regarding Hamas and say there is also a violation by the state of Palestine, that would be a much more comfortable position for judges to take.”

And it is far from certain that the court would convict Palestine. Palestine could defend itself by saying that it failed to prevent genocide because it was itself prevented from doing so by Israel, through its occupation of the West Bank and hamstringing of the Palestinian Authority’s capacity to act. Eliav Lieblich noted that in other international courts, a state’s duties are lightened or relieved when its territory is controlled by another, stronger state. Israel would not relish having to observe this defense.

And, finally, the ICJ imposes very high burdens on the prosecution in genocide cases. The prosecution must demonstrate the intent to destroy a protected group, and the absence of plausible nongenocidal intents that might explain the behavior of the accused. Could a prosecutor show that the only possible rationale for Hamas’s actions on October 7 was to commit genocide against Jews? Could Palestine convince the judges that Hamas was instead attempting to resist Israel’s occupation, and that if Hamas intended genocide, it would have planned its operation differently? If so, Palestine, and by extension Hamas, would likely be acquitted.

Israel has at its disposal a similar defense. Might the death and suffering of Gazans be attributable not to an intent to wipe them from the Earth, but to a desire to free hostages and defend itself against a terror group that commits flagrant war crimes, vows to keep doing so, and uses civilians as shields? If so, Israel, too, stands a good chance of acquittal.

One frequently noted shortcoming of the International Court of Justice, and of international law more broadly, is that its justice is applied unevenly (and often by the strong against the weak). Israel is frustrated that, at the ICJ, it seems to be allowed only to lose, while its wartime adversary remains beyond judgment of any type. The verdicts would not depend on each other—one party could be guilty and the other innocent—but the ICJ’s legitimacy does seem to be tied to the willingness of the court, and the states before it, to punish potential violators of all types, and not just those vilified, rightly or wrongly, in the current wave of fashionable opinion.

The International Criminal Court is probing Israel's actions in the West Bank and Gaza, independent of other cases at the International Court of Justice, such as South Africa's genocide claims against Israel in Gaza.

South Africa is commemorating the 30th anniversary of its first democratic election.

President Ramaphosa lauds South Africa's achievements under his party's leadership since the end of apartheid in 1994.

Thirty years after Nelson Mandela's election and apartheid's end, South Africans reflect on democracy.

Al Jazeera's Mike Hanna reflects on April 27, 1994 and the lessons from the transition from apartheid to democracy.

Joan Donoghue speaks to BBC Hardtalk about the case brought by South Africa to the ICJ over alleged violations of the Genocide Convention by Israel.

Thirty years after the end of apartheid, we revisit iconic images by Jurgen Schadeberg, and the stories behind the lens.

Even the most well-read World War II enthusiast is likely unaware of one major military operation that happened in 1945. It involved Royal Air Force bombers, 24 Sherman tanks, and 36,000 troops—some of them British, the rest Indian and Nepalese Gurkhas under British command. More than 600 of these soldiers died, including a British brigadier general.

Despite the year, the fighting happened after the war ended. It took place in Indonesia. One of the dirty secrets of 1945 is that just as the Allies were speaking loftily of having saved the world from German and Japanese tyranny, they began new battles to regain colonies they had lost in the war: France retook Algeria and Indochina, and the Dutch wanted Indonesia back. With the Netherlands half a world away and devastated by war, the British stepped in to help.

Few Anglophones know either Dutch or Indonesian, and that’s likely one reason we know far less about that archipelago’s long and painful history than, say, about India’s ordeals under the Raj. Yet Indonesia is the world’s fourth-most-populous country, and the one with the largest number of Muslim inhabitants. A single island, Java, has more people than France and Britain combined. David Van Reybrouck’s immensely readable new history of the nation, Revolusi: Indonesia and the Birth of the Modern World, fills an important gap.

Van Reybrouck is a Dutch-speaking Belgian best known for his Congo: The Epic History of a People, published in 2014. Although his writing is dazzling, some of us who follow events in that country felt he was a mite too gentle in dealing with Belgian colonial rule, especially the forced-labor system that so enriched the colony’s founder, King Leopold II. But he shows no such reticence when it comes to the Dutch in Indonesia.

How, he asks, did the once-tiny settlement that today is the immense city of Jakarta “ever become a thriving hub of world trade? The answer was simple: by enslaving people.” Between 1600 and 1900, an estimated 600,000 people were traded by the Dutch in Asia. Some 150,000 slaves came from Bali alone. All of this began under the Dutch East India Company, which, like its British counterpart (they were founded a mere two years apart), had its own army. The company ran the colony for two centuries and was the first corporation anywhere to have tradable stock.

The colonial regime brought vast riches to the mother country and much bloodshed to the islands; a single war from 1825 to 1830 cost roughly 200,000 Indonesian lives. Several decades later, slave labor in the archipelago was in some years generating more than half of the total Dutch tax revenue. (Surprisingly, Van Reybrouck does not mention someone who noticed this, Leopold of Belgium. Enviously eyeing these huge profits set the king on a similar path in his new African colony. Forced labor, he declared, was “the only way to civilize and uplift these indolent and corrupt peoples.”) As with many colonial conquests, the resources that first loomed large for the Dutch—spices—were soon eclipsed by others that proved even more lucrative: coffee, tea, tobacco, and sugar. Ultimately, major profits came from feeding an industrializing world’s hunger for coal and, above all, oil.

Although many scattered revolts took place throughout the centuries of Dutch rule, a profusion of local languages and the expanse of the islands (stretching a distance as far as from Ireland to Kazakhstan, Van Reybrouck points out) meant that national consciousness was slow in coming. An official independence movement did not begin until 1912—by coincidence the same year that saw the African National Congress born in South Africa. The charismatic orator Sukarno, the man who became the movement’s often-imprisoned leader, had the ability to knit together its nationalist, Communist, and Islamic strands. When the Japanese occupied the islands during World War II, they imprisoned Dutch officials and professed anti-colonial solidarity with the Indonesians, but before long began seizing natural riches and imposing their own forced-labor system. A mere two days after Japan announced its surrender to the Allies but before the Dutch could again take over, Sukarno saw his chance and issued a declaration of independence, the postwar era’s first.

Then, in response, came the British invasion, the first round of a four-year colonial war as vicious as any in the 20th century. Heavily armed by the United States, the Dutch battled, in vain, to reestablish control over the sprawling territory. Possibly as many as 200,000 Indonesians died in the conflict, as well as more than 4,600 Dutch soldiers.

As in most counter-guerilla wars, captured fighters were routinely tortured to force them to reveal the whereabouts of their comrades. The Dutch soldier Joop Hueting left a chilling memoir, which Van Reybrouck summarizes: “The platitudes in the letters home. ‘Everything still fine here,’ ‘how lovely that Nell has had her baby,’ because why worry them with stories that they, with their crocheted doilies and floral wallpaper and milk bottles on the doorstep, wouldn’t understand … stories about bamboo huts burning so fiercely that the roar of the flames drowns out the screams of the people who lived there, stories about naked fifteen-year-olds writhing on the concrete with electric wires attached to their bodies.”

Hueting went public for the first time in a television interview he gave in 1969, two decades after his return from Indonesia, provoking death threats so severe that he and his family sought police protection. For the rest of his life, he collected testimonies from fellow Dutch veterans, but, Van Reybrouck writes, “it is bewildering that shortly before his death, the NIOD, the Dutch Institute for War, Holocaust and Genocide Studies, showed no interest … As a result, the legacy of the post-war Netherlands’ most important whistle-blower is languishing in the attic of a private house in Amsterdam.” No country, including our own, reckons easily with such parts of its past; few Americans learn much about the similarly brutal colonial war we waged in the Philippines from 1899 to 1902.

To their credit, some Dutch people were uneasy about the war. Although 120,000 draftees were sent to Indonesia, a remarkable 6,000 refused to board the ships, many of them sentenced to prison as a result. An unknown number of others, foreshadowing our own war resisters during the Vietnam years, concocted medical or psychiatric ailments or quietly slipped out of the country. Among those who did go to Indonesia, at least two—echoing a handful of Black American troops in the Philippines a half century earlier—switched sides.

The best-known of them, Poncke Princen, had been jailed in Holland and Germany by the Nazis, then joined the Dutch army after liberation. Sent to Indonesia, he deserted and took up arms with the rebels. He remained after independence, becoming a member of the Indonesian Parliament and an outspoken human-rights advocate. Those activities won him lengthy prison terms under both Sukarno and his successor, Suharto; sadly, postindependence Indonesia saw long periods of repression.

Many voices we hear in Revolusi are of people whom Van Reybrouck himself talked with. Another Dutch deserter who went over to the rebels was 90 years old when the author tracked him down, in the Dutch city of Assen. With astounding energy, Van Reybrouck found dozens of other elderly eyewitnesses in huts, apartments, and nursing homes all over the world—in Holland, Indonesia, Japan (veterans of the World War II occupation force), and Nepal (Ghurkas from the British army). And even when all the participants involved in a particular event are now dead, he often manages to find a daughter or grandson with a story to tell. Van Reybrouck has visited just about every place that figures in Indonesia’s history, and evokes them with a narrative zest all too rare among historians. When approached from the air, for example, a pair of islands look “like two emerald-green cufflinks on the sleeve of the Pacific.”

That 1945–49 war saw scenes of appalling savagery. One notorious Dutch commander, Raymond Westerling, would have “his men surround a suspicious kampong in the early morning … Anyone who tried to escape … was gunned down … After searching the houses, Westerling addressed the silent crowd and went through his list of suspects … One after the other, the suspects were forced to squat.” If he thought someone had information he wasn’t yielding, Westerling would begin firing bullets.

“The first one shot was Regge, a cousin of mine,” a woman told Van Reybrouck. “They shot him six times. In his right foot, his left foot, his right knee, his left knee … It was Westerling himself who shot him. He didn’t say anything. He drank a soft drink, threw the bottle in the air and shot it.” Westerling claimed to have personally killed 563 people. After the war, he ran a secondhand bookstore in Amsterdam, took opera lessons, and ended up as a swimming-pool lifeguard.

Many things make colonial wars particularly brutal: the colonizers’ lust for wealth; their fear that their enemies might be anywhere, instead of behind a clearly defined front line; their belief that the colonized people belong to an inferior race. But in the case of the Dutch in Indonesia—as of the French in Algeria, who also practiced torture and murder on a huge scale—was there an additional factor as well?

Immediately before its war against Indonesian independence fighters, the Netherlands itself emerged from five years of ruthless German occupation. The country had been plundered. The massive bombing of Rotterdam had leveled the city’s medieval core and left nearly 80,000 people homeless. The occupiers had banned all political parties except a pro-Nazi one. Those suspected of being in the resistance had been jailed and tortured; many of them had been killed. In the winter of 1944–45, the Germans had cut off heating fuel and food for much of the country, and some 20,000 people had starved to death. More than 200,000 Dutch men, women and children had died of causes related to the war, just over half of them Jews who’d perished in the Holocaust. As a percentage of the population, this was the highest death rate of any country in Western Europe. And more than half a million Dutch citizens had been impressed as forced laborers for the Nazis, usually working in war factories that were the targets of Allied bombers.

When victims become perpetrators, are they unconsciously taking revenge? Many conflicts, including those raging today—think of Gaza, for instance—have this underlying subtext. The whistleblower soldier Joop Hueting reported a haunting piece of graffiti he saw as Dutch troops advanced in Java, which answered the question definitively: “Don’t do to us what the Germans did to you!”             

The extreme challenge began at South Africa's most southerly point on 22 April, 2023.