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ICJ CASE DAY 2

Israel says ICJ order, if granted, would leave it defenceless against Hamas

Israel says ICJ order, if granted, would leave it defenceless against Hamas
Illustrative image | South African delegation members John Dugard, Tembeka Ngcukaitobi and Adila Hassimon | Legal Counselor of Israel's Foreign Ministry, Tal Becker and lawyer Malcolm Shaw, (Photos: EPA-EFE/REMKO DE WAAL)

Israel argued before the International Court of Justice (ICJ) that the order sought by South Africa for it to cease its military operation in Gaza would leave it defenceless against Hamas which is determined to destroy Israel.

Israeli lawyers asserted the country’s right to self-defence on Friday in response to the submission by South Africa on Thursday that the ICJ should take urgent and immediate provisional measures to stop Israel from committing alleged genocide. The urgent measures would be pending a final determination by the court on whether it was perpetrating genocide in Gaza in violation of the Genocide Convention. 

The court could decide on provisional measures within weeks, though the final determination is expected to take years. 

Israel’s lawyers argued that an order for Israel to stop its attack on Hamas in Gaza would leave it exposed to further attacks by Hamas like the one it conducted on October 7 last year, killing about 1 200 people, mostly civilians and taking about 240 hostages. About 100 of those hostages remain in the hands of Hamas. 

The lawyers devoted considerable time to providing graphic evidence of this attack which allegedly included murder, torture, rape and the burning alive of civilians, including children. 

Read more on Daily Maverick: Israel asks the ICJ to throw out SA’s ‘curated and inaccurate’ genocide case

Israel’s lawyers more broadly blamed Hamas for much of the massive death and destruction in Gaza, which SA accuses Israel of in its application. 

Tal Becker, legal adviser to the Israeli Ministry of Foreign Affairs, said that after the 7 October “slaughter – which Hamas openly vows to repeat – and to the ongoing attacks against it from Gaza, Israel has the inherent right to take all legitimate measures to defend its citizens and secure the release of the hostages. This right is also not in doubt. It has been acknowledged by States across the world.

“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 organization that pursues an actual genocidal agenda”.

So if anyone should be ordered by the ICJ  to prevent genocide, it was South Africa, Becker said. 

Barrister Malcolm Shaw and Israeli legal counsellor Tal Becker laugh prior to today’s hearings of Israel’s point of view as South Africa has requested the International Court of Justice to indicate measures concerning alleged violations of human rights by Israel in the Gaza Strip on 12 January 2024 in The Hague, Netherlands. (Photo: Michel Porro/Getty Images)

He said SA enjoyed close relations with Hamas “despite its formal recognition as a terrorist organisation by numerous States across the world” and that even after the October 7 attacks, SA had hosted a senior delegation in South Africa for a “solidarity” gathering. 

So the ICJ should instruct SA to comply with its own obligations under the Genocide Convention “to end its own language of de-legitimization of Israel’s existence; end its support for Hamas; and use its influence with this organization so that Hamas permanently ends its campaign of genocidal terror and releases the hostages.”

Becker said if the court granted a provisional measure calling on Israel to suspend its military operations, this would amount to “an attempt to deny Israel its ability to meet its legal obligations to the defence of its citizens, to the hostages, and to over 110,000 internally displaced Israelis unable to safely return to their homes.”

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

Becker said there were many distortions in SA’s application to the court. It barely mentioned Hamas and gave the impression that only Israel was fighting in Gaza, that there was no intensive armed conflict taking place between the two parties at all, no grave threat to Israel and its citizens, only an Israeli assault against Gaza. 

“The Court is told of widespread damage to buildings, but it is not told, for example, how many thousands of these buildings were destroyed because they were booby-trapped by Hamas, how many became legitimate targets because of the strategy of using civilian objects and protected sites for military purposes, how many buildings were struck by over 2000 indiscriminate terrorist rockets that misfired and landed in Gaza itself.” 

Yet, Becker said, “Hamas has smuggled countless weapons into Gaza, and has diverted billions in international aid, not to build schools, hospitals or shelters to protect its population from the dangers of the attacks it launched against Israel over many years, but rather to turn massive swathes of the civilian infrastructure into perhaps the most sophisticated terrorist stronghold in the history of urban warfare.” 

“Hamas has systematically and unlawfully embedded its military operations, militants and assets throughout Gaza within and beneath densely populated civilian areas. It has built an extensive warren of underground tunnels for its leaders and fighters several hundred miles in length throughout the Strip, with thousands of access points and terrorist hubs located in homes, mosques, UN facilities, schools and perhaps most shockingly, hospitals.

He said SA had said over 23,000 Palestinians had died in the war so far – although he said this was the figure of Hamas – “hardly a reliable source.”

But he added that SA had not told the court how many thousands of casualties were, in fact, militants, how many were killed by Hamas fire, how many were civilians taking direct part in hostilities – versus  how many “are the tragic result of legitimate and proportionate use of force against military targets.”

He said Hamas was contributing to the dire humanitarian situation which SA accused Israel of causing by stealing and hoarding aid, And he said SA had failed to mention “the extensive Israeli efforts to mitigate civilian harm, or “the humanitarian initiatives being undertaken to enable the flow of supplies and provide medical attention to the wounded.”

Israeli advocate Omri Sender said that contrary to SA’s claim that Israel was deliberately creating conditions inimical to life for the Palestinians, it was taking a raft of measures to provide them with humanitarian aid – including the recent opening of a dozen bakeries. He said that 108 trucks of food were now entering Gaza a week compared to 70 a week before the war. 

He also said two new water pipelines had been installed, and water infrastructure plants damaged in the war were being repaired. And he said Israel had established four new field hospitals and two new floating hospitals, with two more hospitals on the way. 

Read more in Daily Maverick: Middle East crisis news hub

“The key component of genocide – the intention to destroy a people in whole or in part – is totally lacking,” Becker said. “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.” 

Barrister Malcolm Shaw speaks on behalf of the Israeli delegation during today’s hearings of Israel’s point of view after South Africa has requested the International Court of Justice to indicate measures concerning alleged violations of human rights by Israel in the Gaza Strip on 12 January 2024 in The Hague, Netherlands. On January 11 and January 12 at the International Court of Justice (ICJ), the judicial body of the United Nations, in The Hague, South Africa seized the ICJ, to ask it to rule on possible acts of “genocide” in the Gaza Strip by Israel. (Photo: Michel Porro/Getty Images)

British barrister Malcolm Shaw said the atrocities of October 7 showed the threat to Israel was “real and imminent”. They did not justify the violation of law in reply, still less genocide, “but they did justify the exercise of a legitimate and inherent right of a state to defend itself under the UN Charter to put an end to the continuing attacks against it.” 

Shaw said that genocide was a uniquely evil crime and should be treated as such. “If claims of genocide become the common currency in every conflict, the meaning of genocide will be lost.”

Shaw also argued that SA’s claim should be thrown out because it had not established that it had a dispute with Israel as required by ICJ rules. South Africa had failed to demonstrate that it had given Israel a full opportunity to respond diplomatically to the allegations of litigation before SA resorted to litigation. 

“Particularly in a matter of such severity as an accusation of genocide.” 

He said SA had cited no evidence of exchanges with the Israeli government, which would be the normal way of addressing a dispute between states. 

Shaw said on 21 December, SA had sent a note verbale to Israel raising its concerns about genocide. He said SA’s application to the ICJ  had said Israel had not responded to the note verbale. “This is incorrect,” he said.  Israel responded the same day, and SA confirmed receiving the note. On 27 December the director general of  Israel’s foreign ministry proposed an urgent meeting with his SA counterpart to discuss the issue. 

But the note from the Israeli embassy to this effect could not be delivered to South Africa’s Department of International Relations and Cooperation (Dirco)  supposedly because of the holidays. Dirco had then advised the Israeli embassy to hand deliver the note on 2 January. But SA submitted its genocide application to the ICJ on 29 December. 

Shaw said SA had, therefore, rejected a good faith effort by Israel to address the genocide question – which could have resolved it without resorting to the ICJ. 

This apparent procedural slip-up by South Africa could give the ICJ the chance to dodge SA’s application by arguing that it has no jurisdiction as no dispute had been proved, said UCT international law professor Cathleen Powells.

Advocate Shaw also addressed South Africa’s charge that Israel’s genocidal intent in Gaza had been clearly demonstrated by a host of statements from senior officials, including Prime Minister Benjamin Netanyahu and President Isaac Herzog.

Netanyahu, for instance, had urged Israeli troops to “remember what Amalek has done to you” – a clear reference to the Biblical command by God to Saul for the retaliatory destruction of an entire group of people known as the Amalekites,”  South African advocate Tembeka Ngcukaitobi had argued. 

But Shaw said the sole responsibility for the conduct of the war was a collective one which lay with the war cabinet and the national security council which he said had only issued statements making clear that Hamas and not the Palestinian people as a whole were the enemy.

Shaw also quoted a statement from Netanyahu in which he made the same point. But that statement was made only this week and one observer suggested it might have been made precisely to influence the ICJ case. 

South African justice minister Ronald Lamola dismissed this argument in a press conference after the hearing, saying it was obvious that the statement of a prime minister was authoritative and that Israeli soldiers had acted on it – as South Africa had demonstrated in its submission. 

British barrister Christopher Staker said that SA’s requests for provisional orders by the ICJ to cease its military operation would cause “irreparable prejudice “ to Israel by denying it the right to self-defence. It would give the advantage to one party in a conflict over the other. 

He made the broader point that many of the other measures requested by South Africa to be directed at Israel went well beyond the ambit of the Genocide Convention and also beyond the conflict in Gaza.

Israel’s legal team at the International Court of Justice (ICJ), prior to the hearing of the genocide case against Israel, brought by South Africa, in The Hauge, The Netherlands, 11 January 2024. (Photo: EPA-EFE/REMKO DE WAAL)

For instance, the proposed order that Israel should take all reasonable measures to prevent genocide. He said this applied to the Palestinian people generally. This opened the possibility to later claims that actions by Israel having nothing to do with Gaza were in breach of this provisional measure. He said there was no justification for the provision measure to extend beyond the main claim itself – that Israel is committing genocide in Gaza. 

Powell said the Israeli team had made a stronger case than she had expected including Shaw’s point that SA might not have proved it had a dispute with Israel under the rules of the Genocide Convention. 

And Staker’s point about the provisional measures sought by SA going well beyond the Convention were also quite strong.

She noted, however, that Israel had not responded to several claims by SA, including its allegation that some 85% of Gaza’s population had been displaced by the war and its claim that whole neighbourhoods had been flattened.

Instead, Israel had come with a few facts, loading all of the blame on Hamas, such as the claims that it was using mosques and UN facilities etc to fire rockets.  

“I’m rather hoping the ICJ accepts jurisdiction so that the claims of Hamas being so embedded amongst the civilians can be judicially tested,” she said. DM

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Comments - Please in order to comment.

  • dexter m says:

    Well for a change i agree with Powell

    • Denise Smit says:

      Except for her use of the word dodge. Or was that the DM journalist word?

    • Fayzal Mahamed says:

      I disagree with Cathleen Powell on her assumptions that South Africa may not have followed protocol or procedure before laying out a formal case with the ICJ on the 29th Dec. On what did she base this assumption.
      In my opinion South Africa meticulously followed the procedure, intent not to let the case be subject to endless quagmire and debate with Israel.

      • Kanu Sukha says:

        The ‘law’ can be quite a blunt instrument in some instances, and not consider the ‘niceties’ of your perspective . That is why I am saying that I hope the judges will look beyond what the protagonists ‘say’ (rhetoric) .. which I am not sure they will or is part of their mandate. In terms of what they ‘say’, the Israeli military was self-proclaimed an ‘angel’ as the ‘most moral’ in the world … hence guaranteed a place in ‘heaven’ (wherever that may be) already ! I hope the judges can see this kind of hubris for what it is.

  • Lyle Pillay says:

    South africa should stay out of matters that do not concern them and focus on their own problems first.
    Causing tensions between other countries and South Africa will have consequences in years to come and might be asking for help from those same very countries that the South Africa is looking for trouble with and seeing the direction this country is headed in which is straight falling apart we might be in big trouble all for believing what Hamas is leading people to believe.

    • Johan Buys says:

      Thanks, yes Lyle

      I’m reminded of a little vlakvark kicking up dust while a pride of lion stalk a herd of 400 buffalo…

      • Kanu Sukha says:

        Lyle … imagine if the rest of the ‘world’ had said our struggle against the apartheid regime was none of their business ? It is only because of ‘solidarity’ that we eventually succeeded ! I assume you supported the ending of apartheid … and slavery before our time ?

  • Lyle Ferrett says:

    The South Africans may be experts at apartheid, but are they are experts at genocide?

    • Carl Steyn says:

      They are not even exprts in the use of the word “Apartheid” as it is being used in a distorted fashion for 50 years by all snd sundry.

  • Lyle Ferrett says:

    The South Africans may be experts at apartheid, but are they experts at genocide?

  • Errol Price says:

    “Powell said that the Israeli team had made a stronger case than she had exprcted…” Really !
    The absence of critical analysis by the supine South African legal fraternity , academic and practitioners who have simply fallen into line to support this spurious piece of litigation by South africa beggars belief.
    It is possibly one of the most egregious abuses of international law since the founding of the ICJ.
    It is an attempt to maliciciously subvert one of the most serious international conventions designed to protect against the worst crime imaginable.

    • chris smit says:

      Fully agree. But we have to remember that this is an election year in which the ruling ANC may lose a substantial portion of the vote. No more comments are necessary

      • Bill Gild says:

        That this is an election year in SA, and that there exists a likelihood that the ANC will lose its majority, ought not be missed by commentators. It’s a brilliant move, guaranteed to stir up antisemitism, especially in the W. Cape which has a large Muslim population, and divert the electorate’s attention from the fact that SA’s economy is cratering, that the ANC has proven to be incapable, or unwilling, to govern, and that the future here appears bleak, at best.

  • Eus de Clerk says:

    Smoke and mirrors. Bob Dylan: “The answer, my friend, is blowing in the wind.”

    • Kenneth FAKUDE says:

      This is a clear premature celebration by pro Israel fanatics (apology if it amounts to insult).
      South Africa is not in conflict with Israel in Gaza, same as the Palestinians who are dying in thousands.
      Genocidal statements were issued by Israel collective leadership and followed by action of the IDF through the defense minister.
      Israel except deny they have not defended the genocidal intent.
      The focus on Israel is jurisdiction and procedures which was expected because Israel has never respected international law if they did the illegal occupation and illegal settlements would have ended as per UN resolution.
      Israel is done with the ICJ case , they have put their off ramp from the ICJ verdict and will do what they do best Genocide.
      Next week it will be 50000 Palestinians because there is bodies under the rubble and a speeding up needs to happen.
      Locally this attitude of getting fixated with a party to a point of failing to identify the wrongs and solutions for human needs is why the opposition will never win elections, if all the parties had supported the step by the government they would have taken the glory of only the ANC appointed government carrying about human life.
      The DA a very good party which can effectively lead this country has always failed to win the black masses by not going to those areas and physically showing they care about poverty striken communities, the lack of empathy even after Hamas is blamed over and over means we are stuck with the ANC.

  • cjg grobler says:

    And we thought destroying our country was all the ANC is capable of now they have made our beloved country part of the worlds terrorist states. Ramaphosa has entertained quite a number of very unsavoury characters the past year.

    • Kanu Sukha says:

      Maybe you should have listened to Madiba when he told an American audience … that your ‘enemies’ are not necessarily ours ! Maybe the philosophy informing that kind of thinking, is just a tad too nuanced for some. Let us rather get into Trumpian politics.

  • Jeff Robinson says:

    I agree that the actions of the IDF in Gaza constitutes genocide. But it MUST be acknowledged that the ultimate purveyor of genocide is none other than Yahweh/Jehova/Allah. When he/she/it decided to obliterate humankind in the flood (sans Noah and family) this entailed the genocide of innocent children. Indeed, the Israelites enraged this meglomaniac by not completing the job with the Midianites (although he/she/it did spare all the virgins for the pleasure of his/her/its “chosen people”). All three Abrahamic religions claim divine sanction for their atrocious acts and it seems unlikely that there would be such levels of conflict if people could give up these absurd beliefs. So sad that the majority of Africans continue to embrace them.

    • Kenneth FAKUDE says:

      Jeff it’s a human need to embrace, wealthy people embrace the goodies that money brings them.
      A majority of Africans are poor and faith becomes the only affordable thing to embrace which gives them a sense of purpose.
      I am not yet qualified to know if it’s the right thing but it does identify sinful acts for people to stay away from and helps them to face their struggles without scavenging like animals.

      • Jeff Robinson says:

        There is so much to embrace that does not require belief in ancient myths or anything supernatural. Life is not a miracle, BUT it is miraculous and just to live it (and dig it) is purpose enough even for those of us who are not strangers to poverty.

    • Louis Kruger says:

      I agree Jeff. It is truly amazing what atrocities human beings are capable of in the name of religion. In the end this conflict is not solvable by negotiation or debate. It is in essence a war between gods. The one sides god orders its followers that the land between the river and the sea belongs to them and all Israelis should be exterminated. The other sides god tells them the land is the holy land and was given to them in biblical times And they have a Devine right to it. To save the planet, religions and the atrocities and wars perpetrated in its name should all be banished to the rubbish dump. They are a threat to us all

    • John P says:

      It appears you did not understand Mr Robinson’s post

    • D Rod says:

      Well spoken Jeff.

    • D Rod says:

      Honestly, if you can’t contribute constructively to discussion – please stop trolling.

    • Martin Neethling says:

      My word. Sarcasm and the repeated k word. Not the highest standards of debate one ventures. It’s obvious that to you this is all super clear cut, so why not offer cojent and on point arguments to support your view? From what the ICJ heard on Friday, I’d suggest that there is much to SA’s case that can and will be challenged.

    • Fayzal Mahamed says:

      My suggestion is to transfer the bloodshed and atrocity and genocide to the God of Muslims and to the God of Jews. Let them battle it out in the heavens. In the meantime can we stop the attrocity and genocide on the ground now.

  • Jan Vos says:

    One question: Who started this mess, this killing, this act of terrorism?

  • Paul Nogueira says:

    To resort to a technicality when human lives are at stake is telling.
    Similarly telling and completely lacking in integrity is the Netanyahu quote, conveniently made this week, about excessive broadness of the interventions sought by SA. Grasping at straws. Time to put the US to the test in the Security Council to see if Biden places Israel ahead of the Democratic Party and there is a 4th straight veto of a call for an immediate ceasefire – surely the ICJ’s most important judgement to date. If they get this wrong, it is a death sentence for thousands more innocent men, women and children, and for itself.

    • lucy lu says:

      does the thousands mean gazans, israelis or both?

    • Marion Botma says:

      No, that is now where you got it wrong Paul. Respect for the law does not work like how you propose: if the ICJ “gets it wrong, it’s a death sentence …. for itself.” That is not how it works when you respect the Rule of Law… you respect the Court’s decision and that is it.

  • Dietmar Horn says:

    In court and on the high seas, we are alone in God’s hands, says an old saying. It is therefore pointless to speculate what the verdict will be. However, I would venture to say that the South African government will most likely make a fool of itself internationally. But: no risk, no fun.

  • Peter Holmes says:

    Israel’s argument (that it would be left defenceless if the order sought by SA is granted) is purely hypothetical. After 7 October, the loss of around 200 Israeli soldiers in combat, and the hostages still held by Hamas, Israel will, I have no doubt, continue this operation until they meet their self-defined objectives.

  • lucy lu says:

    I’ve read through most comments and have a question:
    Houthis? Hezbollah? Isis? Hamas?
    Can you explain their mission of terror in humanitarian terms please.
    I seem to be misunderstanding their attacks on civil Populations, and why so many countries label them as terrorist and outlaw them, but yet the support and loyalty being afforded them paints a totally contrasting picture to what I understand.
    last i read the houthis are targeting israel-supporting states. and when counter attavks are levelled against them, they turn the tables and blame the victims.
    hamas and supporters are using the same level of reasoning…
    is it acceptable to slaughter innocents, butcher elderly and young with predetermined intent, rape, dismember, mutilate humans because of personal or religious belied and then expect there to be no consequence? sjoe – that’s a strange moral belief.
    and please… if we can not shrug the questuon off as kak. thats as futile an argument as “apartheid” is nowadays. a word that is so misused in todays society that it actually has no meaning anymore.
    thanks

  • Johan Buys says:

    If it is true, how do you fight against an opponent that fired missiles at you from a school?

    Tough one.

  • Steve Marks says:

    True. Hamas will attack Israel. However Israel will not allow it. They will not abide by the UN or ICJ. National security comes before world opinion. Israel should tell the UN and IJC to take a flying sexual act at a rolling doughnut.

  • J L says:

    What I don’t understand about Daily Maverick reporting, is that Hamas claims are accepted as fact at face value.
    Yet Israeli claims, backed by evidence, are just allegations.
    From the article: “allegedly included murder, torture, rape and the burning alive of civilians, including children.”
    It’s not alleged. Hamas fighters video documented all of their atrocities. Yet to Fabricius, it’s just an allegation.

  • Just posting to read the comments

  • Fayzal Mahamed says:

    I heard on the news that Prime Minister Netanyahu intends to continue to slaughter of women and children in Gaza despite whatever ruling may emerge from the ICJ. I am reminded of Hitler who continued to slaughter Jews and other persons during the Holocaust in spite of knowing the genocide that he and his soldiers were committing. It was Germany that was left with the shame of having committed the Holocaust in which millions of men, women and children were slaughtered. Similarly, history will attest to the shame of Israel having committed a similar Holocaust against the Palestinian people.
    Shame, Israel, Shame

  • Alon Atie says:

    Very accurate article in just reporting the facts of what was said at the hearing without giving the journalists personal opinion as a subtext. Great journalism.

  • John Forbes says:

    While the application to the ICJ was purely to do with Gaza and on the question of Genocide, the Israeli government’s vindictive, spiteful and often murderous activities, now conducted daily in West Bank, form part of a pattern that clearly illustrates that the ultimate aim is for the ethic cleansing of Palestinians from the whole of Palestine. Apart from arrests without charge, arbitrary house invasions, the destruction of houses and the ripping up of infrastructure form part of the daily indignity suffered by the Palestinians. It must be only a question of time before this situation totally boils over so that Israel has an excuse also to bomb the West Bank to oblivium!

  • Bernhard Scheffler says:

    .

  • Leon Hugo says:

    Hamas promised genocide to Israel! Hoe ridiculous from our government to accuses Israel as such?

  • Amanda Katz says:

    Please follow the money. The ANC was almost bankrupt for the past few years and unable to pay salaries…where do you think their sudden surge of finances to support this application and pay off debs comes from after recent meetings with Iran and Hamas? This is hardly a Madiba moment in our history

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