UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

Counsel for Israel said at the International Court of Justice (ICJ) yesterday (Friday) that the Hamas attack in Israel on October 7, 2023, fell within the statutory definition of genocide, but Israel’s subsequent assault on Palestinians in Gaza did not.

British lawyer Malcom Shaw told the court that Israel’s response to the Hamas attack was “legitimate and necessary”.

In oral arguments put forward at the ICJ, lawyers for Israel focused mainly on the actions of Hamas and Israel’s claim that its operations in Gaza are legal and have been carried out in self-defence.

Israel’s lawyers praised the Israel Defence Forces (IDF) and said Israel was doing all it could to minimise civilian casualties; to mitigate harm to the civilian population.

Acting director of the international justice division at Israel’s Justice Ministry Galit Raguan said that the IDF’s actions to mitigate harm to civilians sometimes exceeded the requirements of international humanitarian law.

Raguan said South Africa has presented a partial and deeply flawed picture and that many Palestinian civilian deaths had been directly caused by Hamas. Israel had not bombed hospitals in Gaza, she said, and damage and harm had occurred as a result of “hostilities” nearby.

Omri Sender spoke about Israel coordinating the entry of a UN delegation into northern Gaza “in order to evaluate the situation and map the needs for a future return of Palestinian civilians”.

The questions this raises are ‘A return to what exactly?’ and ‘Is there anything left of northern Gaza after the Israeli bombardments?’

Malcom Shaw cited the statement made by the Israeli Prime Minister, Benjamin Netanyahu, on January 10, when he said that Israel had no intention of permanently occupying Gaza or displacing its civilian population.

This statement is at odds with numerous remarks by Israeli politicians and officials who state exactly the opposite.

On January 11, counsel for South Africa pointed to Netanyahu’s televised address on October 28, 2023. Lawyer Tembeka Ngcukaitobi said the speech was genocidal and had gained ground among some elements of Israel’s civil society.

As Israeli forces prepared to launch an assault on Gaza, Netanyahu said: “You must remember what Amalek has done to you, says our Holy Bible. And we do remember.”

Ngcukaitobi told the ICJ: “This refers to the biblical command by God to Saul for the retaliatory destruction of an entire group of people known as the Amalekites.”

The Amalekites were an ancient nation who, according to the Hebrew Bible, were the first to attack the children of Israel after their escape from Egypt into Sinai.

The Scripture says: “Now go, attack Amalek, and proscribe all that belongs to him. Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses.”

The genocidal invocation to Amalek was anything but idle and was being used by Israeli soldiers to justify the killing of civilians in Gaza, Ngcukaitobi said during Thursday’s hearing.

The Amalek have been invoked numerous times in the past to justify violence against Palestinians.

The intentional failure of Israel’s government to condemn, prevent, and punish genocidal incitement constituted a grave violation of the Genocide Convention, Ngcukaitobi told the ICJ.

During his presentation to the ICJ Ngcukaitobi spoke about Israeli soldiers celebrating blowing up houses in Gaza.

There are innumerable examples of Israeli soldiers posting celebratory videos on social media in which they are shown enjoying themselves in the ruins of Palestinian homes.

South African advocate and professor of law Thulisile “Thuli” Madonsela tweeted on January 12: “Interestingly, Israel has not responded to South Africa’s allegation and aducing of evidence of cause and effect of genocidal statements made by its President, PM and ministers. It asks the #ICJ to ignore those and only consider formal resolutions of its cabinet and parliament yet when the PM allegedly made positive remarks the day before this hearing, those must be taken into consideration. Extraordinary! #RSAvIsrael.”

She added: “Talking about an odious reality in the Gaza killing fields: It is estimated that at least 100 Palestinian children are killed per day in Gaza (Over 10 000 in 3 months) making it about 4 children killed every hour since October 7, which will go on if the ICJ does not make it stop.”

Madonsela said that it could not be reasonably disputed that Acts (a) to (d) of the Genocide Convention had been committed by Israel “At issue is the requirement of intent. South Africa presented compelling evidence of intent mainly statements by Israeli government, key among which being marching orders to the IDF by its Commander In Chief PM Netanyahu,” she tweeted.

The legal adviser of the Israeli Ministry of Foreign Affairs, Tal Becker, made the opening statements for Israel at the ICJ.

UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

Becker said “the nightmarish environment created by Hamas” had been concealed by the applicant, South Africa, but was the environment in which Israel was compelled to operate.

He said the key component of genocide, the intention to destroy people, in whole or in part, was totally lacking.

“What Israel seeks by operating in Gaza is not to destroy a people, but to protect a people, its people, who are under attack on multiple fronts, and to do so in accordance with the law, even as it faces a heartless enemy, determined to use that very commitment against it,” Becker said.

Israel was in a war of defence against Hamas, not against the Palestinian people, he added.

“In these circumstances, there can hardly be a charge more false, and more malevolent, than the allegation against Israel of genocide.”

Israel aimed to ensure that Gaza could never again be used as a launchpad for terrorism, Becker told the court.

“As the prime minister reaffirms, Israel seeks neither to permanently occupy Gaza or to displace its civilian population,” he said.

“If there have been acts that may be characterised as genocidal, then they have been perpetrated against Israel.”

Lecturer in international relations at Kings College London Alonso Gurmendi has been providing informative threads on X (Twitter) about the ICJ hearings. “Just to be clear, Israel’s presentation was very thorough. It was not ‘bad’ or ‘weak’ by any means, so don’t deceive yourselves. South Africa will have to work hard to prove intent, though less hard to prove Israel is not preventing genocide or punishing incitement to genocide,” he tweeted on Friday.

Barrister and author Suchitra Vijayan firmly disagreed and tweeted that Israel’s presentation was not “very thorough”.

One tweeter described Israel’s defence as sloppy and “barely coherent”. Another said Israel spent its time justifying Israel’s genocide, not denying it.

Former executive director of Human Rights Watch Kenneth Roth tweeted: “The Israeli government undercuts its case against genocide charges by continuing to stress that it is acting in self-defense because self-defense is NOT a defense against genocide. The argument suggests the government is relying on spin rather than law.”

Gurmendi made a similar comment on Thursday: “Israel is still the occupying power in Gaza and so Israel cannot argue it is acting in self-defence over territory it controls, but even if it could, self-defence can never take the form of genocide,” he tweeted.

Genocide researcher and lecturer Arnesa Buljušmić-Kustura tweeted on Friday: “I want people to understand, no matter what the legal outcome of the ICJ case is, there is a genocide against the Palestinians. This case is not about whether or not genocide is happening but whether or not Israel is guilty of genocide in the eyes of international law.”

Jerusalem-born human rights activist and director of resource development at Physicians for Human Rights Israel Lee Caspi challenged assertions made by counsel for Israel that Israel had not limited the entry of aid to Gaza. It was, she said, “simply a lie”. For the first three weeks of the war, she said, nothing was allowed in.

The then Minister of Energy and Infrastructure, Israel Katz, tweeted on October 13, 2023: “All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”

On October 12, Katz ‘tweeted’: “Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter until the Israeli abductees are returned home. …”

South Africa is requesting that the ICJ indicate provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.

Israel is asking that the court rejects the request for the indication of provisional measures submitted by South Africa and removes the case from the General List.

Israel’s deputy attorney general for international law, Gilad Noam, said that provisional measures requested by South Africa would deprive Israel of the ability to contend with the security threat against it.

South Africa’s Minister of Justice and Correctional Services, Ronald Lamola, spoke to journalists after Friday’s hearing. He said that Israel had failed to disprove South Africa’s compelling case.

Self-defence was no answer to genocide, Lamola said. “Nothing can ever justify genocide,” he added. “The prohibition is absolute.”

No matter what any individual in a Palestinian group in Gaza may have done and no matter how great the threat to Israeli citizens might be, genocidal attacks on the whole of Gaza and the whole of its population, with the intent of destroying them, could not be justified, Lamola said.

Lamola said South Africa was not ignoring the events of October 7, as Israel alleged.

He said during his presentation on Thursday that South Africa unequivocally condemned the targeting of civilians by Hamas and other Palestinian armed groups and the taking of hostages on October 7, 2023, but no armed attack on a state territory, no matter how serious – and even an attack involving atrocity crimes – could provide any justification for, or defence to, breaches to the Genocide Convention, “whether as a matter of law or morality”.

Lamola said Israel should not downplay the effects of Netanyu’s address on October 28. “There is no debate about what the prime minister’s term Amalek means and how it is understood by soldiers fighting on the ground; by the Israeli people,” he said.

“There is no serious debate that Israel is now actually rolling out the Gaza Nakba.”

The Nakba, which means ‘catastrophe’ in Arabic, refers to the mass displacement and dispossession of Palestinians during the 1948 Arab-Israeli war.

Tembeka Ngcukaitobi said on Thursday that genocidal utterances didn’t just come from the fringes of Israeli society. They were embodied in state policy and came from the president, the defence minister, the ministers of national security and of energy and infrastructure, members of the Knesset (parliament), and senior army officials, he said.

Lamola said he was astonished that Israel was now telling the ICJ that such statements were rhetorical and unimportant. “How can you ignore the statement of the prime minister, ignore the statement of the defence minister, ignore the ground forces singing, repeating what the prime minister has said?” he commented. “That is clear implementation of policy.”

On October 9, 2023, the Defence Minister, Yoav Gallant, said he had ordered a “complete siege” of the Gaza Strip. “There will be no electricity, no food, no fuel, everything is closed,” he said. “We are fighting human animals and we are acting accordingly.”

In its 84-page application to the ICJ, South Africa states that, on October 12, 2023, President Isaac Herzog made clear that Israel was not distinguishing between militants and civilians in Gaza. Herzog stated in a press conference to foreign media, in relation to Palestinians in Gaza: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware, not involved. It’s absolutely not true. … and we will fight until we break their backbone.”

On January 11, a spokesperson for Israel’s Ministry of Foreign Affairs said that South Africa was “functioning as the legal arm of the Hamas terrorist organisation”.

In an article on Substack, the American journalist and author Chris Hedges wrote that this smearing of South Africa exemplified the bankruptcy of Israel’s defence.

Hedges wrote: “A ruling of genocide is a stain that Israel – which weaponizes the Holocaust to justify its brutalization of the Palestinians – would find hard to remove. It would undercut Israel’s insistence that Jews are eternal victims. It would shatter the justification for Israel’s indiscriminate killing of unarmed Palestinians and construction of the world’s largest open air prison in Gaza, along with the occupation of the West Bank and East Jerusalem. It would sweep away the immunity to criticism enjoyed by the Israel lobby and its Zionist supporters in the U.S., who have successfully equated criticisms of the ‘Jewish State’ and support for Palestinian rights with anti-Semitism.“

Hedges wrote that the ICJ court would not, by demanding Israel end its hostilities in Gaza, define the Israeli campaign in Gaza as genocide. It would, he said, confirm that there was the possibility of genocide, “what the South African lawyers call acts that are ‘genocidal in character’”.

The case, Hedges wrote, would not be determined by the documentation of specific crimes, even those defined as war crimes. It would be determined by genocidal intent as defined in the Genocide Convention.

The BBC and Sky News are being criticised for live streaming only the ICJ hearing on Friday (Israel’s arguments), but not the hearing on Thursday (South Africa’s presentations).

The state-owned German broadcaster Deutsche Welle also live streamed Israel’s arguments, but not those of South Africa.

The ICJ’s decision will be delivered at a public sitting, the date of which is yet to be announced.

UPDATE: Euro-Med Human Rights Monitor says that 32,246 Palestinians were killed in Gaza between October 7, 2023, and January 19. The death toll includes 12,660 children, 6,860 women, 301 healthcare professionals, and 115 journalists.

Nearly 92% of those killed in the Israeli air and artillery attacks on the Gaza Strip were civilians, the organisation said.

Euro-Med Human Rights Monitor estimates that there are more than 1.95 million displaced people in the Gaza Strip who remain without a safe shelter amid inhumane conditions.

Namibia says it rejects Germany’s support of “the genocidal intent of the racist Israeli State against innocent civilians in Gaza”.

Namibia’s President, Hage G. Geingob, said he was deeply concerned about “the shocking decision” communicated by the government of the Federal Republic of Germany in which it rejected “the morally upright indictment brought forward by South Africa before the International Court of Justice that Israel is committing genocide against Palestinians in Gaza”.

He said: “Germany cannot morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia, whilst supporting the equivalent of a holocaust and genocide in Gaza.

“Various international organisations, such as Human Rights Watch have chillingly concluded that Israel is committing war crimes in Gaza.”

President Geingob reiterated his statement made on December 31, 2023, in which he said: “No peace-loving human being can ignore the carnage waged against Palestinians in Gaza”.

Geingob appealed to the German government to reconsider its “untimely decision to intervene as a third party in defence and support of the genocidal acts of Israel before the International Court of Justice”.

The president said that, on Namibian soil, in 1904–1908, Germany committed the first genocide of the 20th century, in which tens of thousands of innocent Namibians died in the most inhumane and brutal conditions.

“We will restore security to both the south and the north. Nobody will stop us – not The Hague, not the axis of evil and not anybody else.”

On X (Twitter) on January 15, Chris Doyle, who is a commentator on the Middle East and director of the Council for Arab-British Understanding posted a compilation of calls made by Israeli ministers and others, including a military commander, for the erasure, dehumanisation, dispossession, subjugation, and ethnic cleansing of Palestinians in Gaza.

“Israeli leaders have made genocidal comments ever since 7 October. … They are terrifying, even more so given what Israel has and is doing to Palestinians in Gaza,” Doyle tweeted.

The ICJ will deliver its decision about South Africa’s application in a public sitting at 1 p.m. on January 26.
 

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