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ICJ CASE — DAY 2

Israel asks the ICJ to throw out SA’s ‘curated and inaccurate’ genocide case

Israel has asked the International Court of Justice to dismiss South Africa's genocide case, arguing that critical conditions have not been met and that the statements cited by South Africa were just "random quotes" made during the heat of the conflict with Hamas.
Israel asks the ICJ to throw out SA’s ‘curated and inaccurate’ genocide case Tal Becker (left), Legal Counselor of Israel's Foreign Ministry, and lawyer Malcolm Shaw (right), prior to the hearing of the genocide case against Israel, brought by South Africa, at the International Court of Justice (ICJ) in The Hauge, The Netherlands, 11 January 2024. (Photo: EPA-EFE/Remiko de Waal)

Israel has argued that the International Court of Justice (ICJ) did not have the jurisdiction to hear the genocide case South Africa has brought because critical conditions had not been met. It has asked the court to throw out South Africa’s case.

Malcolm Shaw KC argued that South Africa had not declared a dispute and that efforts by Israel to open talks had been rebuffed. “South Africa decided unilaterally that a dispute existed,” said Shaw, adding that “South Africa failed to demonstrate prima facie jurisdiction of the court and to demonstrate intent”.

Israel argued that statements by Cabinet members, army chiefs and Knesset members, which South Africa said were genocidal in intent, were only “random quotes” made in the heat of the Hamas attack of October 7.

Read more in Daily Maverick: ‘Nothing will stop this suffering, except an order from this court’ — SA sets out the evidence against Israel

He said that if Israel’s soldiers had then acted on the statements of alleged genocidal intent, the country had domestic systems to deal with them. 

Lawyer on the Israeli side, Malcolm Shaw at the International Court of Justice in The Hauge, The Netherlands, 11 January 2024.  (Photo: EPA-EFE/REMKO DE WAAL)
Lawyer on the Israeli side, Malcolm Shaw at the International Court of Justice in The Hauge, The Netherlands, 11 January, 2024. (Photo: EPA-EFE/Remko de Waal)

Israel repeatedly argued that it had acted with allowable and proportional force over the 96-day war, that warnings had been amply and timeously given ahead of bombing campaigns (what it calls ground and air operations), and that it granted significant humanitarian assistance. (These claims have previously been countered by the UN as false.)

Shaw said that Israel’s President Isaac Herzog and Prime Minister Benjamin Netanyahu had both spoken publicly about the need to limit harm to minimise civilian casualties. Herzog had said Israel had no intention of permanently occupying Gaza, he argued. (In the past fortnight, Knesset members have set out a post-Palestinian future for Gaza; others have raised plans to migrate Palestinians out of Gaza forcibly and the rest of Palestine).

South Africa dons a blind-fold, says Israel

Dr Tal Becker, legal advisor to Israel’s Foreign Ministry, argued that South Africa had exhibited wilful blindness in its application for Israel to be found to be plausibly engaged in genocide.

“It was a war Israel did not start and did not want,” said Becker, adding that “The civilian suffering in this war, like in all wars, is tragic and heartbreaking”. He said South Africa's arguments had been “curated and inaccurate”. “The attempt to weaponise the term genocide against Israel empties the word of its unique force and meaning,” he said.

He said South Africa’s submissions had been nearly blind to the “wholesale massacre, mutilation, rape and abduction” by Hamas on October 7 2023. “The events of that day are all but ignored in the applicant’s submissions,” said Becker, adding that "If there are acts that are genocidal they have been perpetrated against Israel. There are many distortions in the applicant’s [South Africa’s] submissions [to the court]. But one overshadows all. It is almost as if there is no conflict taking place that threatens Israel's existence,” argued Becker.

Tal Becker, Legal Counselor of Israel's Foreign Ministry looks on prior to the hearing of the genocide case against Israel at the International Court of Justice (ICJ). (Photo: EPA-EFE/Remko de Waal)
Tal Becker, Legal Counselor of Israel's Foreign Ministry, looks on prior to the hearing of the genocide case against Israel at the International Court of Justice. (Photo: EPA-EFE/Remko de Waal)

Read more in Daily Maverick: Middle East crisis news hub

He criticised South Africa for continued relations with Hamas and said that the organisation advocated for the annihilation of Israel. The team played a clip of Hamas official Ghazi Hammad saying as much on Lebanese TV was played for the court as from October 7.

“South Africa should be instructed to end its support for Hamas,” as part of its obligations under the Genocide Convention, Becker told the ICJ judges.

He asked that the judges dismiss South Africa’s application as a “libel” and added: “The Genocide Convention was a promise to the Jewish people, all people, of ‘never again’. The applicant [South Africa] asks the court to betray that promise. It should not become an aggressor’s charter.”

From left, Professor of International Law John Dugard, lawyer Tembeka Ngcukaitobi and lawyer Adila Hassim, ahead of the hearing of the genocide case against Israel brought by South Africa, at the International Court of Justice in The Hague, The Netherlands, on 12 January, 2024. (Photo: EPA-EFE / Remko de Waal)
Professor of International Law, John Dugard, lawyer Tembeka Ngcukaitobi and lawyer Adila Hassim, sit ahead of the hearing of the genocide case against Israel brought by South Africa, at the International Court of Justice in The Hague, The Netherlands, on 12 January, 2024. (Photo: EPA-EFE/Remko de Waal)

Throw out the case, Israel says

Israel has asked the ICJ to throw out South Africa’s case and argued that it is doing all it can to limit harm by warning of attacks. 

It has argued that it is at war with Hamas, and the Israeli Justice Ministry official Galit Rajuan said the organisation used hospitals as military sites.

She put up photographs showing Hamas fighters firing at the IDF from hospitals and also other images from hospitals of what she said was evidence. However, these have never been independently verified and are only reported by embedded journalists.

She said that Israel had carefully mapped Palestinian-occupied territories to develop a system of warnings ahead of bombing campaigns and other military occupations. She said millions of leaflets had been distributed, and so had social media videos and other messages to warn Palestinians to leave ahead of attacks.

“The applicant [South Africa] tells not only a partial story but a false one. Yes, damage and harm have been caused but always as a result of Hamas’s method of warfare. The charge of genocide is frankly untenable,” said Rajuan. 

Pro-Palestinian protesters stand in front of the International Court of Justice where a second day of hearings take place. (Photo: Michel Porro/Getty Images)
Pro-Palestinian protesters stand in front of the International Court of Justice where a second day of hearings take place. (Photo: Michel Porro/Getty Images)

What now?

Israel has asked the ICJ to deny all of South Africa’s six requests for immediate preventive measures, including the end of military operations, the extension of proper humanitarian assistance (to stave off what the UN says is a famine) and the right to birth assistance for Palestinian mothers.

South Africa has asked the court to order the preservation and prevention measures in 10 to 14 days.

This week, four members of the Palestine Red Crescent were killed in an army operation. 

By 11 January, 23,357 Palestinians had been killed, with more than 17,000 women and children among them. It is estimated that 8,000 people are buried in the rubble and that 59,167 have been injured, according to Gaza’s Ministry of Health. The UN uses these numbers. DM 

Comments (10)

Stuart Hulley-Miller Jan 14, 2024, 10:35 PM

The deaths incurred in this entire incident are really shocking. None of them would have happened if Hamas had not attacked Israel without any warning or specific reason. They planned this and the subsequent inevitable Israeli response.

Kanu Sukha Jan 15, 2024, 01:33 AM

In terms of the headline to this article, if the judges in this matter were to 'throw out' the matter on a technicality ... rather than the substance of the issue ... they would be guilty of doing the administration of justice ... a grave disservice.

lawrenceroff@quivertreecapital.co.za Jan 15, 2024, 07:42 AM

It is unfortunate that Haffajee was incapable of reporting on Israel’s response to South Africa’s charges without revealing her personal bias. To say that 23k Palestinians have died without mentioning that about 8,000 were Hamas combatants suggests that the war is against the Palestinian people. The truth is that a 2:1 ratio of civilians to combatants is low relative to most modern wars. Haffajee’s calling Israel’s evidence of Hamas using hospital infrastructure as “Never independently verified,” but quoting Hamas’s figures as the gospel also show her bias. (Would she suggest that Hamas would not or has not done such a thing,) Haffajee’s one sided reporting shows the same curated and inaccurate approach as South Africa’s representatives did at the ICJ. What she seems not to get is that the implication of her embellishment is that without it, the argument made by Israel would win.

Coen Gous Jan 15, 2024, 10:52 AM

Sir, you can say what you want, but find your words like incapable, one sided. curated, inaccurate, embellishment rather unfortunate, and in the context of this article, blatant insulting

Ajay San Jan 15, 2024, 10:05 AM

Israel said it had killed 8500 terrorists in Gaza and 1000 in Israel on Oct7th. We also know that a missed fired rocket by the IPJ killed 500 in the ground of a mosque. Hamas does not distinguish between civilians and terrorists killed, even some of their teenagers were classed as children. They are the worst type of liars trying to fool all that that they are victims and Israelis are agressors.

chamberlain.grant Jan 15, 2024, 01:27 PM

How many civilian casualties were suffered by all sides in the Second World War, in Vietnam, the invasions of Afghanistan by both Russia and the USA, Iraq, Russia’s invasion of the Ukraine, and every regional and local conflict in between? War is bloody and dirty. Innocent people die. Children die, babies die. Certainly Israeli civilians, children and babies died when the Hamas terrorists invaded. Undoubtedly and inevitably greater numbers of Palestinian civilians, children and babies have died since. The propaganda from both sides cannot obfuscate the reality and arguments about numbers are pointless. I do find it jaw droppingly staggering that a country like South Africa that cannot adequately feed, house, provide utilities to or protect its own people from violent crime or the rampant corruption and criminality of its political leaders can still claim the moral high ground in relation to any other country. This legal action against Israel is a political stunt, doomed to fail and a further waste of resources that should be more appropriately directed to compel South Africa’s political leadership to address their own moral and political failures.

James Lang Jan 15, 2024, 01:38 PM

As a South African of 93 years, I have inevitably lived to see many wicked/foolish acts committed by a SA government. I haven't witnessed any of such acts equalling my disapproval/disgust as the vast SA "legal" team presently performs at The Hague, before what is mistakenlydesignated as an International Criminal Court of "Justice". My reasons: 1] Israel is busy committing a legitimate act of war 2] The war is waged by Israel against an evil terrorist body in the form of Hamas, the only one which could rightly be convicted of striving for genocide of the Jews; 3] The Court, before which Israel is bound to appear, is a disreputable body set up by the United Nations, which itself has for almost its entire life earned little or no record of achieving justice and peace in the world, and 4] Worst of all, that such is the composition of the relevant court, the judgement of the court will be likely to find in favour of the government of our country, which itself has demonstrated time and time again to be that is has been riddled with corruption, misdeeds and incompetence. Long retired Acting Judge Andrew Lang S.C.

Kevin Venter Jan 16, 2024, 08:07 AM

There is no doubt that the bloodshed needs to be stopped in Palestine. I support that, but to think that we understand the conflict that has been Israel/Palestine for more than 70 years is naive. Ever since I can remember it has been a cycle of attack and retaliation and that has been going around and around. Something has to be done vastly differently to stop that. Taking hostages, raping, torturing and murdering on both sides is unacceptable. What I do find rather peculiar is that South Africa decides to point fingers at Israel with an accusation of genocide. Last I checked, thousands of farmers have systematically been killed INSIDE South Africa's borders since 1994. Just because South Africa is not in an official "war" doesn't make that any less of a genocide by the very definition of the word. How about we first get our own house in order by actually dealing with the rampant violent crime within South Africa before going about grand-standing on the world stage? Our very own majority political parties are singing songs like "Kill the Boer" and "Bring me my machine (gun)", which are then conventiently not classed as hate speech. How blatantly arrogant and denialist can it get? Get your own house in order before you dare to go pointing fingers at others.

David Crossley Jan 17, 2024, 10:44 AM

Hamas’ avowed intent is the total destruction of the State of Israel. If that is not reason to dismiss South Africa’s mendacious court action, then the law is an Ass. The brutality of the Hamas attack on the 7th October beggars belief - that was definitely a precursor to genocide. They are a genocidal terrorist organisation pure and simple.

Sydney Carstens Jan 17, 2024, 04:17 PM

A few comments from my side….an entity (whether a terrorist organization or sovereign state does not matter) commit barbaric acts against the population of a nearby state after being repeatedly warned that there will be consequences. This entity then chose to use their own civilians to be their human shield against retaliation actions of the nearby sovereign state. They also continue to fire missiles at the general population of the nearby state. The nearby state decide that enough is enough and the best option of retaliation is to go for the total annihilation of the entity (mentioned in my first sentence). In the process thousands of civilians are being killed either directly or indirectly (starvation, lack of medical care etc.). There are definitely two parties in the wrong here albeit for different reasons. If the rest of the world wants to intervene to stop the killing of civilians in both countries they need to force both parties in this battle to stop (Israel and Hamas…representing Palestine). Whether this can be enforced is impossible to say. Trying to force the hand of just one side is a waste of time. Now is the time for high level mediation but it seems nobody (so far) has shown an appetite for this. The rest of the world (including our government) should be ashamed that they turned to choosing sides rather than try to solve this conflict. In the process more and more division is caused (just read through the comments on this article) and what do we achieve with this attitude? Secondly it is saddening to see the lack of common sense and decency displayed in the arguments by so many commenting on this article. Using expletives to argue a case or to call people names will never contribute to positive debate. If you disagree with someone tell them you disagree and the reasons for your opinion. Adult debate is there to try and persuade people that your opinion is the most valid one by using common sense, logic and facts and not by swearing and deliberately offending/insulting other parties. Just my 2 cents…..

smoconnor7 Jan 23, 2024, 12:26 PM

It's a relief to hear what Israel has to say . In its defence and response...as with everything that has happened in these past 100 plus days has been, in defence of itself ..The behaviour, murder ,rape and the war itself started by the very Hamas that Palestinians voted in themselves ..to govern and shows the obvious hatred that the Arab( always ) has had toward the Jews .. if only someone would open a Bible or a secular history book of the ancient and more modern history of the Jewish people . But ....... This is all a thoroughly spiritual battle ,and always has been ....One filled with hatred toward another ... Good to read the sense heard from the defence given by the Israeli lawyers ..Again ... defending itself for something they did not want in the first place ...attack !!!