South Africa made an emotive but entirely one-sided case. Israel responded with facts and law.
South Africa’s three-hour oral pleading before the International Court of Justice (ICJ), delivered on Thursday 11 January 2024, roughly followed its written application, of which I have written two critiques, here and here.
It was delivered by a party of agents and advocates, garishly attired in South African and Palestinian scarves, as if they were attending a football match. They certainly signalled their partisanship, with keffiyeh-style scarves aplenty among the delegation to the court.
As expected, South Africa glossed perfunctorily over the inhuman attacks of 7 October 2023, arguing that nothing excuses genocide.
It did, however, try to argue that one ought not to view the Israel/Hamas war as a ‘simple conflict between two parties’, but as ‘destructive acts perpetrated by an occupying Power, Israel, that has subjected the Palestinian people to an oppressive and prolonged violation of their right to self-determination for more than half a century’.
This is, of course, revisionist history. The Palestinian people have been offered many opportunities for self-determination, and have either rejected them out of hand, or undermined attempts at self-governance by electing leadership that remains committed to Israel’s annihilation and continues to launch violent attacks against Israeli civilians at every opportunity.
That Israel is an occupying power in the Gaza strip is itself highly questionable. Although it does maintain tight control over Gaza’s borders, it has no people – civilian or military – inside Gaza, and therefore does not have effective control over the territory. Hamas, by contrast, is the once-elected government of Gaza, and does exercise effective (if brutally dictatorial) control over the territory.
South Africa largely pointed to a cherry-picked selection of consequences of the war against Hamas – which are, of course, pretty heartbreaking – and interpreted them as being sufficient evidence either that genocide is happening, or that Israel is acting with genocidal intent.
These representations brooked no subtlety or nuance.
When South Africa quoted an Israeli cabinet member to infer genocidal intent, it didn’t bother to mention that the cabinet minister in question had no say over official policy, that same quote was immediately repudiated by the prime minister, and that the cabinet member was suspended. No, context would harm its carefully constructed narrative.
When South Africa cited alleged numbers of Palestinian deaths, it did not question the source (Hamas), nor did it distinguish between civilians and combatants (which admittedly is hard to do when combatants do not follow the laws of war, do not wear uniforms, and hide among the civilian population). It refers to ‘women and children’ as victims of Israeli action, without noting that Hamas is known to use both women and child soldiers in its ranks, so at least some of them were in fact combatants.
Back home, the praise for South Africa’s expensive legal team couldn’t have been more profuse. Suddenly, almost everyone is ‘proud to be South African’.
It’s as if they forgot that this action was launched by the same incompetent, delinquent, and corrupt ANC government that is allied with the world’s skunk governments – including regimes that themselves stand accused of genocide – and back home are running the country into the ground and robbing the people blind.
It was a welcome change of pace, therefore, to listen to Israel’s oral pleadings in response to South Africa’s deeply partisan charges, the next day.
Israel began by reminding the court why the Genocide Convention even exists: it was created in response to the attempted total annihilation of the Jews. The word ‘genocide’ was coined by Raphael Lemkin, a US jurist, a Polish Jew, and a witness to the Holocaust.
‘For some, the promise of “Never Again” for all peoples is a slogan; for Israel, it is the highest moral obligation,’ said Tal Becker, legal adviser to the ministry of foreign affairs of Israel, in his opening address.
He pointed out that this is a war that Israel did not start and did not want. He said it is the ‘reprehensible strategy’ of Hamas to seek to maximise civilian harm to both Israelis and Palestinians, while Israel seeks to minimise it.
Becker denounced South Africa’s pleading as ‘a profoundly distorted factual and legal picture,’ adding: ‘The entirety of its case hinges on a deliberately curated, decontextualized and manipulative description of the reality of current hostilities.’
He said South Africa sought to delegitimise Israel’s entire 75-year existence, gave a ‘sweeping counterfactual description of the Israeli-Palestinian conflict’, and ‘seemed to erase both Jewish history and any Palestinian agency or responsibility’.
In doing so, he said, South Africa’s position ‘sounded barely distinguishable from Hamas’s own rejectionist rhetoric’.
In contrast with South Africa’s glib references to the attack by Hamas on Israeli civilians, Becker offered accounts of entire families burnt alive; a woman raped while her breast was sliced off, before being shot in the head during a second rape; and of grenades being thrown at families hiding in safe rooms.
‘[If] there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel,’ Becker said, noting Hamas’s declared agenda of annihilating Israel, or, to put it in the words of a senior Hamas leader: ‘We will cleanse Palestine of the filth of the Jews.’
Another senior official of Hamas, went on TV to declare: ‘Nobody should blame us for the things we do. On October 7, October 10, October 1,000,0000 – everything we do is justified.’
Becker also told the court that South Africa has a very close association with Hamas, despite its status as a terrorist organisation, and that it arranged a solidarity meeting with Hamas only weeks after the 7 October attacks.
Israel’s presentation countered virtually every South African allegation.
In answer to South Africa’s claim of 23 000 Palestinian casualties, Israel contends that this number is unreliable because it is sourced solely from Hamas itself, that the court was not told how many of those casualties were in fact enemy combatants, how many were killed by Hamas fire, how many were civilians directly involved in hostilities, and how many are the result of legitimate use of force against military targets, ‘even if tragic’.
Minimising civilian casualties
It covered the extensive measures Israel has taken to minimise civilian casualties, even in the face of an enemy that wages war from within civilian infrastructure and uses civilians as human shields.
What army bent on genocide will issue millions of messages, by telephone, text, radio, and leaflets, to give advance warning of when and where they will attack?
It gave a lengthy account of Israel’s provision and facilitation of humanitarian assistance, despite the fact that Hamas routinely steals relief aid, and pointed out that contrary to South Africa’s claims, there were no limits placed on the quantity of such assistance.
It pointed to the distinction between intemperate statements made in shock and anger that were repudiated by high officials of the state and military, and the official cabinet and military instructions that emphasise the need to prevent a humanitarian disaster, establish field hospitals, and increasing the amount of food, water and medicine that reaches Gazan civilians.
A standing order in the military, repeated daily, reads: ‘[Attacks] will be solely directed towards military targets, while adhering to the principles of distinction, proportionality and the obligation taking precautions in attacks in order to reduce collateral damage.’
Professor Malcolm Shaw took issue with another of the quotations South Africa floated, namely, ‘Remember what Amalek has done to you,’ said by Prime Minister Benjamin Netanyahu. In the biblical account, God does indeed instruct the Israelites to kill every Amalekite, women, children, and livestock included.
However, the very next words of Netanyahu were: ‘We remember, and we are fighting. In front of our brave and hero soldiers there is one prior mission: to defeat the murderous enemy and secure our existence in our land… The IDF is the most moral army in the world, the IDF does everything to avoid harming the uninvolved…’
These and many other statements cannot be understood except in the context of a government and a military that, far from intending genocide, seeks to minimise civilian casualties in defending Israel against ongoing attacks from an avowedly genocidal enemy.
South Africa asked the court to order not only that Israel cease supposed genocidal actions, but that it cease its entire military campaign against Hamas. Becker responded: ‘If the claim of the Applicant now is that in the armed conflict between Israel and Hamas, Israel must be denied the ability to defend its citizens – then the absurd upshot of South Africa’s argument is this: under the guise of the allegation against Israel of genocide, this Court is asked to call for an end to operations against the ongoing attacks of an organisation that pursues an actual genocidal agenda. An organisation that has violated every past ceasefire and used it to rearm and plan new atrocities. An organisation that declares its unequivocal resolve to advance its genocidal plans. That is an unconscionable request and it is respectfully submitted that it cannot stand.’
Other pleadings argued against South Africa’s claim that Israel could not rely upon the right to self-defence, ostensibly because it is the occupying power in Gaza. They pointed out that the right to self-defence is not limited to state actors, and still exists if the attacks originate on territory under a state’s control, and that in any case, it cannot be argued that Gaza was under Israeli control at the start of the war, that Israel wants to exercise control over Gaza, or that it wants to displace the Gazan population.
Israel pointed out that contrary to South Africa’s claim for urgency, the scope and intensity of Israel’s attacks were in fact decreasing. One wonders why that might be, if Israel does have genocidal intent, but only 1% of the population of the Gaza strip have been killed.
Having argued why provisional measures are not warranted, Israel also argued why the specific measures South Africa sought would be highly prejudicial to Israel. In particular, on the request to suspend all military operations in Gaza, Christopher Staker KC said: ‘This request is frankly astonishing. A request is made by a State not party to an ongoing conflict, for provisional measures requiring unilateral suspension of military operations by one party to the conflict only, leaving the other party free to continue attacks, which it has a stated intention to do.’
Since military operations are not ipso facto genocidal, such an order would go well beyond the measures required to give effect to the provisions of the Genocide Convention.
Weaponising the ICJ
Among Israel’s final claims is an important one: although any war has tragic consequences, including for civilians, deciding that the mere fact of civilian casualties amounts to genocide would turn the Genocide Convention into a weapon in the hands of terrorists, who could wield it to force their victims to unilaterally lay down their arms, without any commensurate obligation to themselves.
In the words of Gilad Noam, deputy attorney general for international law at the Israeli ministry of justice: ‘If every resort to force in self-defence against an enemy hiding behind civilians can be portrayed as genocide and trigger provisional measures, an inevitable tension will be created between the Genocide Convention and States defending themselves against the ever-increasing capacities of terrorist organisations. Doing so would also signal to terrorist organisations that they can commit war crimes and crimes against humanity, and then exploit this Court to obtain protection.’
Israel formally requested the court to reject South Africa’s request for the imposition of provisional measures, and to remove the case from the court roll.
It made a very compelling case for why the 17 judges of the ICJ should do so. I would be surprised and disappointed if they disagreed, but anything is possible.
Even if it rules against Israel, however, there is much value in having a clear and detailed record of the facts and arguments upon which Israel relies to assert its right to defend itself against genocidal terrorists, documented and presented for posterity.
Image: Vusi Madonsela, in his capacity as South Africa’s ‘Ambassador Extraordinary Plenipotentiary’ to the Netherlands, opens South Africa’s oral arguments against Israel at the International Court of Justice in The Hague. Image courtesy of the ICJ.
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