For over seven decades, Israel has systematically violated international law while facing little to no real consequences for its oppression of the Palestinian people.

However, the shield appears to be cracking since Israel launched its genocidal war on Gaza, with Tel Aviv facing an unprecedented wave of legal challenges.

Among the several cases against Israel, one France-based international law expert offers a different path to justice.

Dr Omer Shatz, an international lawyer and counsel at the ICC, has identified a legal angle few had pursued. For him, proving genocide isn’t the only route. The crime of “incitement to genocide” stands on its own – and in Israel’s case, it’s much easier to prove.

Based on public and explicit statements by Israeli leaders, Shatz filed a 170-page submission to the ICC, accusing eight Israeli officials of inciting genocide against Palestinians in Gaza.

The submission was the result of over a year of research conducted with his students at Sciences Po’s Master’s programme in Human Rights, where Shatz lectures.

Among those named in the ICC submission as having incited genocide are Prime Minister Benjamin Netanyahu, President Isaac Herzog, former Defence Minister Yoav Gallant, National Security Minister Itamar Ben-Gvir, Finance Minister Bezalel Smotrich, Defence Minister Israel Katz, journalist Zvi Yehezkeli, and former IDF Major General Giora Eiland.

Here, Dr Shatz explains why this approach is different, how incitement to genocide functions as a legal charge, and why this case may offer one of the most promising paths to holding Israeli leaders accountable.

Edited excerpts:

TRT WORLD: What is incitement to genocide, and why did you choose to pursue this legal route? Could you explain how your case differs from other legal actions against Israel so far?

OMER SHATZ: An incitement to genocide is an act of directly and publicly calling others to commit genocide. Our case differs from other submissions as it is the first ICC case to focus on this unique crime, showing that it can be independently prosecuted, that is, irrespective of whether genocide has been committed or not, or can be proven or not.

While the common view is that the ICC can prosecute four international crimes –aggression, genocide, war crimes, and crimes against humanity– we show that, in fact, there is a fifth prosecutable crime, incitement to genocide.

For example, aiding and abetting the war crime of starvation requires proof that the main crime, starvation, has been committed. The fact that incitement to genocide stands on its own means that the ICC prosecutor can and indeed must investigate and prosecute this crime even if he believes that genocide has not actually occurred, or that it occurred but it would be difficult to prove it.

How do you prove that incitement to genocide has occurred? What kind of evidence do you rely on?

OS: Incitement to genocide is a speech-based crime. It occurs when someone directly and publicly calls on others to commit a genocidal act. In this case, the intended audience of such incitement is IDF soldiers on the ground, who were the addressees of inciting statements made by senior officials and public figures and disseminated via mainstream and social media.

There are two key characteristics to the incitement that typically accompanies genocides. The first is the process through which the targeted population is dehumanised, in this case, Palestinians in Gaza: calling the members of the targeted group cockroaches, human animals, Amalek and so on.

The second is the process through which the atrocious acts towards the group are normalised, blurring the distinction between civilians and combatants, innocent ‘non-involved’ and people taking direct part in the hostilities, in order to justify the mass killings, injuries, starvation and forced displacement of children and women, teachers, doctors, journalists and so on.

Your case outlines three key and innovative arguments for prosecuting incitement to genocide at the ICC. Can you walk us through them and explain why this approach is significant?

OS: First, we argue that incitement to genocide should be treated not as a mode of liability but as a distinct crime in itself. The facts are not in dispute: the evidence comes down to public statements accessible to all, so there is no need to have boots on the ground, to collect victim statements or gather forensic evidence. This makes it a straightforward, quick, and not costly process.

Second, we show that the evidentiary standard used by the ICJ “plausibility” is equal to or even higher than the ICC’s standard of “reasonable grounds to believe”. In January 2024, the ICJ found it plausible that Palestinians in Gaza are at risk of genocidal acts, including incitement. That finding satisfies the ICC’s threshold to open an investigation, prosecute, and issue arrest warrants.

Finally, as the ICJ ordered the Israeli government to prosecute and punish the inciters, under the principle of complementarity, the ICC can investigate and prosecute if the competent national jurisdiction is unable or unwilling to do so. We waited to see if the Israeli judiciary would comply with the ICJ order and investigate incitement to genocide. But in November 2024, Israel’s Attorney General told the Supreme Court she would not open even a single criminal investigation. This clear defiance of the ICJ order reflects Israel’s unwillingness to act – triggering the ICC’s jurisdiction. In fact, by not prosecuting, the ICC Prosecutor is now also in breach of the ICJ order.

What exactly does your case demand regarding these eight Israeli officials? What potential consequences could they face?

OS: The ICC is already investigating the situation in Palestine, with arrest warrants issued for Netanyahu and Gallant, for war crimes and crimes against humanity. Our case expands this to eight individuals, as there are six others who should be investigated and potentially prosecuted, and if necessary, the ICC can issue additional arrest warrants. For Netanyahu and Gallant, the prosecution would typically amend the existing arrest warrants to include incitement to genocide.

Ultimately, this decision rests with the ICC prosecutor, who has full discretion to determine whether to incorporate these charges into the Palestine investigation. All we did was provide the undisputed facts and the solid legal framework that legally obligates him to do so. Whether he does, therefore, hinges on purely political considerations, over which lawyers have no control.

However, the prosecutor is not only obliged to prosecute past crimes. He is also obliged to terminate ongoing and prevent future crimes. In fact, this is why incitement to genocide was legislated as an independent crime to begin with: in order to prevent genocide, one must prosecute incitement to genocide.

Over the past year, Israel has faced accountability through several cases in global courts, including the ICC arrest warrants. Yet, no concrete action has been taken so far. Do you believe that, in the end, justice will be achieved through international law?

OS: For the Israeli victims of October 7 and the Palestinian victims of post-October 7, justice is too late. What matters now is to protect those who survived and to protect international law itself. This is why the legal battles matter: international law is, to a large extent, shaped by states’ practice, and if these atrocities are not outlawed and punished, they will become the law. The rules-based order established post-Nuremberg is collapsing and thus the question is not whether justice will prevail but rather whether the international legal order will survive.

So I am not optimistic, but irrationally hopeful.

As an Israeli pursuing this case, what does this mean for you personally? What kind of pressures and challenges have you faced in taking this legal action?

OS: My grandparents survived WWII and immigrated to Palestine. I was born and raised in Israel. I’m an Israeli lawyer and also an ICC lawyer. In Israel I used to do the very same work I’m doing now – I used to take cases to the Israeli Supreme Court, and together with colleagues and organisations, I was challenging parliamentary laws and governmental policies which amounted to war crimes and crimes against humanity in the West Bank, Gaza, and Israel.

Israel is not an isolated legal sphere but part and parcel of the international legal order. As I explained before, had Israel genuinely investigated these heinous crimes in the first place, the ICC could not do anything. Finally, you have Israeli lawyers representing Israeli victims before the ICC, and Israeli lawyers working at the ICC in other cases.

The bottom line is that the prosecution of international crimes is not at all relevant if you are pro-Israeli or pro-Palestinian. The real common interest should be preventing and prosecuting international crimes to protect both communities.