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Israel asks ICJ to reject SA’s latest request on Gaza, saying ‘armed conflict is not a synonym for genocide’

Israel asks ICJ to reject SA’s latest request on Gaza, saying ‘armed conflict is not a synonym for genocide’
Judges arrive at the International Court of Justice in The Hague, Netherlands, on 17 May 2024 to hear South Africa’s request for new emergency measures relating to Israel’s attacks on Rafah, as part of an ongoing case that South Africa filed at the ICJ in December last year accusing Israel of violating the Genocide Convention during its offensive against Palestinians in Gaza. (Photo: Yves Herman / Reuters)

South Africa’s ‘egregious and repeated efforts’ to bring Israel before the International Court of Justice in The Hague, are exploiting the Genocide Convention, Israel has argued before the court. 

On Friday, 17 May, Israel asked the International Court of Justice (ICJ) to throw out South Africa’s request for it to cease its military activities in the Gaza Strip, saying – if granted – it would impede its right to self-defence against Hamas militants. 

Read more in Daily Maverick: Israel-Palestine War

Israel had two hours to present its arguments, but finished about 30 minutes before the end of its allotted time. 

In the final few minutes of Israel’s arguments, someone shouted “liars!” and the court cut the feed. Tamar Kaplan Tourgeman, the principal deputy legal adviser to the Israeli home affairs ministry, was reading Israel’s final submission to the court, saying “the State of Israel requests the court to reject the request for the modification and indication of provisional measures submitted by the Republic of South Africa”. 

Opening for Israel, the ministry’s deputy attorney general for international law, Gilad Noam, raised objections to the short timeline of the oral proceedings. 

“Israel received notification of this hearing on Monday, less than four days ago, while it was observing a particularly painful national remembrance day. This notification came as a great surprise because the court had already invited Israel to submit its observations on South Africa’s request in writing by Wednesday of this week,” Noam said. 

“Israel was preparing its written observations when the court suddenly announced that it would hold an oral hearing instead.”

Noam said it “proved impossible” for Israel to be adequately represented by its entire legal counsel, as several members were “unable to come to The Hague on such short notice”.

He said Israel had requested the hearing be rescheduled to the following week, which the court denied. 

“The date of this hearing remained that which South Africa had expressly requested. The regrettable result is that Israel is not represented today by its chosen team of counsel and advocates,” Noam said, gesturing to the largely empty Israeli side of the courtroom.

Noam noted that South Africa had “quite radically changed the terms of its requested provisional measures, which Israel has been given less than 24 hours to respond to”.

In its application to the court on 10 May 2024, South Africa had requested that the ICJ order Israel to immediately withdraw from and cease its military incursion in the southern city of Rafah. But, presenting its case to the ICJ on Thursday, South Africa urged the court to reassert its authority and order Israel to cease its military operations throughout the Gaza Strip.

Read more in Daily Maverick: South Africa’s legal team asks ICJ to order halt to all Israeli military activity in Gaza Strip

“This case, even by its very name, the Application of the Convention of the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, suggests an inversion of reality. It has given rise to South Africa’s egregious and repeated efforts to bring Israel before this court through the most obscene exploitation of the most sacred convention,” Noam said. 

“Calling something a genocide again and again does not make it genocide. Repeating a lie does not make it true,” he added. 

“Armed conflict is not a synonym for genocide,” he said

‘Rafah is Hamas’s stronghold’

ICJ, Israel, Gaza, South Africa

Israel’s deputy attorney general for international law, Gilad Noam, looks on at the International Court of Justice, at the hearing on South Africa’s request for new emergency measures related to Israel’s attacks on Rafah. (Photo: Yves Herman / Reuters)

On Friday, 17 May, Noam said Rafah was Hamas’s stronghold, with hostages being held in the city. Noam did not give figures on the number of hostages allegedly held in Rafah, but said “132 hostages remained in captivity” in Gaza. 

“Rafah in particular, is a focal point for ongoing terrorist activity. It is a stronghold for Hamas’s operatives, with several battalions belonging to the Rafah brigades entrenched in the area,” he said. “Also present in Rafah, is an intricate underground tunnel infrastructure that runs underneath the city and provides ample space for operatives.”

He said the Israeli military had identified nearly 700 tunnel shafts in Rafah, from which “approximately 50 tunnels cross into Egypt”. He added that Palestinians would be “liberated” only if Hamas was defeated in Rafah. 

He said Hamas’s grip on Rafah, “continues to pose a significant threat to the State of Israel and its citizens”.

Argument of self-defence

ICJ, Israel, Gaza, South Africa, Rafah

Zane Dangor, director-general of South Africa’s Department of International Relations and Cooperation (left), and Vusimuzi Madonsela, South Africa’s ambassador to the Netherlands, look on at the International Court of Justice, at the start of the hearing on Thursday, 16 May 2024. (Photo: Yves Herman / Reuters)

Noam argued that with respect to Israel’s right to self-defence, “the reality is that any state put in Israel’s difficult position, would do the same”.

He said the right to self-defence was “an inherent right afforded to Israel, as it is to any state. Israel is committed, as it must be, to realising this right in accordance with the law.”

Noam said Israel was “acutely aware of the large number of civilians that are concentrated in Rafah … We do not wish harm to these civilians as Hamas does.” 

He claimed this is why there had not been a “large-scale” operation on Rafah, but rather “specific, limited and localised operations”.

Noam said Israel’s own legal system was capable of dealing with violations in Gaza, saying Israel itself was “investigating hundreds of incidents” of civilian harm, and also investigating allegations of incitement to commit genocide. 

In his statements, Noam challenged the evidence South Africa provided the court – in particular, the UN reports and casualty figures. 

South Africa cites hateful social media accounts and unsubstantiated news reports in support of its claims … An additional flaw in this regard is South Africa’s heavy reliance on documents prepared by third parties or under the auspices of the United Nations when this cannot be said to constitute sufficient evidence of a reliable quality,” Noam said. 

​​This week, the UN denied reports that the death toll of women and children in Gaza had been revised down, after the Gaza health ministry’s revised totals of those killed appeared on the website of the UN’s office for coordination of humanitarian affairs, the Guardian reported. A spokesperson for the UN told the Guardian that the confusion resulted from the Gaza ministry’s new way of classifying bodies not yet fully identified. Importantly, the total number of deaths recorded in Gaza had not been revised down. 

Humanitarian aid

Israel, Gaza, ICJ, Rafah

A supporter of Israel demonstrates outside the International Court of Justice hearing in The Hague, Netherlands, on Friday, 17 May 2024. (Photo: Yves Herman / Reuters)

Arguing before the court about the measures Israel has taken to ensure the provision of humanitarian aid to Gaza, Tourgeman blamed Hamas for the “humanitarian suffering on both sides”.

She said South Africa’s statements that Israel had shut down the two mainland border crossings – Karem Abu Salem (Kerem Shalom) and the Rafah crossings – and that Israel had cut Gaza off from all humanitarian, medical and other supplies “are blatantly untrue”.

She claimed the Kerem Shalom crossing was closed only between 5 and 8 May, “after Hamas fired” at the border crossing. She said Israel was trying to reopen the Rafah crossing. 

Al Jazeera reported on Friday, 17 May, that UN officials had confirmed no aid had been coming through the Rafah and Kerem Shalom crossings. The UN World Food Programme, said on Thursday, 16 May: “Since 6 May, we have not been able to access and receive aid from the Kerem Shalom crossing. The situation is becoming unsustainable.”

Tourgeman claimed many land border crossings, particularly in the north of the Gaza Strip remained open, and Israel was doing what it could to “ensure that alternative paths are available for the continued increase in its provision of humanitarian assistance to the Gaza Strip”.

While Tourgeman was speaking before the court, international media reported that the first aid trucks began entering Gaza through the floating pier built by the US military attached to Gaza’s shore. The pier has been criticised as a distraction from Israel blocking land border crossings, Al Jazeera reported

Before the proceedings concluded, German Judge Georg Nolte asked Israel to provide information on the existing humanitarian conditions in the designated evacuation zones, in particular, Al Mawasi, “and how it would ensure safe passage to these zones” and the provision of shelter, food, water and other humanitarian aid and assistance to all Palestinian evacuees. 

ICJ president, Judge Nawaf Salam, requested that Israel provide a response to Nolte’s question by Saturday, 18 May 2024.

“The court will render its order on the request for the indication and modification of provisional measures as soon as possible. The parties will be advised in due course as to the date on which the court will deliver its order at a public sitting,” Salam said. DM

Gallery

Comments - Please in order to comment.

  • David van der Want says:

    No matter what your views on this matter have a look at motaz_azaiza Instagram account before commenting.

    • Kenneth FAKUDE says:

      what about views of what is happening in Palestine in relation to the facts presented to the court? we don’t need Motaz instagram account for that, we can only be morons to deny what we have seen unfolding or to deny the existence of the worst form of apartheid practiced by Israel, history has taught us that discrimination on ethnic grounds creates a lot of resistance some of it can be in the form of Hamas and if the oppression is of a terrifying nature the resistance will be terrifying, no surprise there.

    • Malcolm McManus says:

      Hi David, I am not on Instagram. Can you please give a brief outline of the content. I listened to both South Africa’s, and Israels account of the situation and there is a much different story told by Noam representing Israel and that of the South African version. South Africa claimed that aid was being halted into Rafah and elsewhere, whilst Israel countered that aid was only halted very briefly whilst Hamas was attacking the Kerem Shalom crossing which leads to the Rafah crossing. Its unfair of the court to not allow sufficient time for Israel to plan their defense without adequate representation. Since South Africa introduced the request, they would already have been in a position to have more time to plan their representation and logistics etc. A lot of what was said by South Africa, seemed at best distortion of the facts, if not even blatant lies based on what many news outlets globally have been reporting on. At one point, the lady who was representing South Africa / Palestine, even tried unsuccessfully to shed a tear. It appeared to be an act. A very emotive speech, but it definitely seemed very fake emotion.

      • John P says:

        Israel’s claims are supported only by information supplied by Israel whereas South Africa’s claims are supported by information provided by UN agencies, aid agencies, eye witness accounts and more. Perhaps if Israel would allow international news agencies to report from within Gaza we would see a different view.

        • Mordechai Yitzchak says:

          In other words – Israel’s case is taking Israel’s word. SA’s case is taking the pro-Palestinian word.

          BTW – I am an eye witness

      • JP K says:

        The accounts are not consistent with each other. But you attribute this to South Africa distorting facts or blatant lies. Not sure on what basis you make this assumption.

        If you recall, the Israel defense relied on discrediting South Africa’s motive (we’re the legal arm of Hamas apparently) and secondly discrediting our sources. Israel therefore had to argue that essentially the reports and organisations producing them are not to be relied upon.

        Here Israel runs into basic problems because these accounts and reports are coming from different sources including different UN agencies, special rapporteurs, international NGOs.

        South Africa anticipates this and Hassim notes that the court itself relies on these sources. She further argues that Israel itself is preventing independent investigations from occurring.

        So I’m not sure how you come to believe the Israel account is accurate? Particularly given the numerous times they have lied before (remember beheaded babies? Remember the command centre and Al Shifa? Rember Levy getting fired for lying to the UK foreign secretary about there being “NO limits on the entry of food”) I mean how do you explain away mass graves? How do you explain that Gallant said they would prevent food going in and now Gazans are starving. I could go on.

        So ask yourself why you discount the account of South Africa automatically?

    • Anthony Krijger says:

      Yes, the images are designed to shock. Also have a look at “When the music stopped” on YouTube by Tomer Peretz.

      This should never have happened and if Hamas hadn’t attacked, Gaza would still be intact.

    • Mr OK says:

      I did and it’s a pro-Palestinian account. I could suggest you look at pro Israel accounts too but it’s likely that you’ve chosen a side. All you’re doing is spreading propaganda.
      Before you comment maybe watch some of the go pro footage from Hamas on Oc 7 ?

      • John P says:

        Just one question. Do the horrible acts of Hamas on Oct 7 really justify the extent of Israel’s response? Under 1,500 people killed, injured and captured vs 105,000 killed and injured and the destruction of most of the Gazan infrastructure.?

        • Mordechai Yitzchak says:

          This is a deliberate distortion of figures John, to serve your agenda. It presupposes zero Israeli casualties (military and civilian) in the war since Oct 7 (which is unfortunately not the case). John is an antisemite. Don’t be like John.

  • Ismail Fredericks says:

    Time for israel to finish this war by completely destroying the Hamas terrorist organisation

  • Ann Bown says:

    So some of the Israeli team couldn’t travel to The Hague on such short notice! That must be shorthand for “can’t defend the indefensible “.

  • Denise Smit says:

    How many years and rescources did it take to build all those tunnels even into Egypt. A whole city underground

  • Anthony Krijger says:

    Its a very simple solution; return the hostages and the war will stop before breakfast. Israel has repeatedly said this, but its a pity that the South African government has never thought to ask for the return of hostages. The war crimes here begin with Hamas. Both the murdering of innocent unarmed civilians and the taking of hostages are both defined as war crimes.

    • Malcolm McManus says:

      I’m not sure the war will stop immediately if the hostages are returned, but it would certainly make for an extremely improved base for more realistic talks to resume and at least promote a ceasefire. Something the innocent victims of this war on both sides desperately need. Once a ceasefire is achieved, and if Hamas obey it and don’t continue to send rockets into Israel or carry out any further terrorist attacks, perhaps we can then look to the future for the war to stop. But much harm has been done and there is much anger on both sides. I don’t see a quick fix to this problem. Its going to take decades and a major shift in policy from both sides to fix this mess. The other big players in this conflict, both in the West and in the middle East have to take on a totally refreshed view on how they can achieve peace in this region. The bigger powers need to start talking to each other and find common ground and a realistic road to assist with peace.

    • John P says:

      Israel has definitely not said that the war will stop if Hamas return the hostages, what they have said is that the war will only stop once they have destroyed Hamas.
      It is misleading to say that the war crimes here begin with Hamas. You could say that the current war was begun by the actions of Hamas on October 7. The war crimes actually began with the 1947 UN partition plan.

      • Malcolm McManus says:

        There differing views on many things with regards to this war. Who commits war crimes etc. The key issue is how do we solve the issue. How do all the key stakeholders achieve peace.

        • JP K says:

          According to John Meirsheimer Israel has 2 stated objectives. (1) Destroy Hamas. (2) free the hostages.

          The third objective is the ethnic cleansing and genocide of the Palestinians.

          This is why Israel is in the dock. Genocide. You don’t get to commit genocide as a way of freeing hostages. That makes no sense whatsoever.

          • Mr OK says:

            The 3rd objective? The only objective is to eradicate Hamas and the return of the hostages.
            The rest of your assertions are conjecture and one-eyed interpretation.

        • John P says:

          Peace can only be achieved by a negotiated settlement where the rights of all parties are assured. That means that Palestine and Israel need to share the entire territory equitably preferably as a single state.

          • Mr OK says:

            So you imagine a utopia where the land is shared? It’s a pipe dream.
            Israel is smaller than the Kruger National Park. It takes up the land mass of around 0.2% of the Middle East. It is the only Jewish state amongst 22 other Arab states.
            Tell me again with conviction that the Palestinians will happily share the land with current population of Israel?
            Maybe West Bank and Gaza can be an independent state but Israel will stay a Jewish state. All citizens welcome to practice whatever religion they like. Even Muslim citizens have freedom of religion in Israel.
            Maybe you should consider why there’s no significant Jewish populations anywhere else in Middle East ? Yes they all got chased away

          • Mordechai Yitzchak says:

            Great idea John. Now, in layman (or any other technical terms you’d like to choose), please tell me exactly how that differs from the current State of Israel?

  • Agf Agf says:

    Excellent counter by Israel. South Africa playing dirty by bringing the case in the same week that Israel was preparing its written submission as required, and then Israel was only allowed 4 days to prepare. Let’s hope the ruling goes against SA so that Israel can finish the job.

  • Geoff Coles says:

    I am wondering with so little time given Israel to present, whether this is due to the new ICJ President.
    Victoria O’Regan has given a half decent account of proceedings in Holland, unlike most of her SA colleagues in the Media.

    • Kenneth FAKUDE says:

      That is nothing to really present its all out there, they say ,they do it, they don’t care the European allies are there to protect them, imagine if Hamas did october 7 for the same period that Israel has been doing the massacre, since 1948 Israel has been doing its october 7 to Palestinians without any outcry from the whole bunch who cannot even condemn the illegal occupation.

  • Sid Peimer says:

    I see DM is starting to move towards neutrality – with reporting based on facts. Taken a while, but well done. Repeating the word genocide does not make it true. The ball is firmly in Hamas’ court: return the hostages, stop firing rockets and replace article 7 with something humane (as opposed to ‘kill all the Jews’). However, South Africa just keeps giving them extra time – and will do so until after the elections – painting anyone as the villain except themselves.

    • JP K says:

      I have started complaining about DM/Bloomberg’s reporting on this matter, so I disagree. It is very much a western framing that Bloomberg presents and in that framing we’ve seen the US and Germany say there is no basis for the claim of genocide. Yet South Africa presented compelling evidence drawing on credible sources that Israel is indeed attempting to commit genocide.

      This is slaughter is, supposedly, being done in the name of Jews. When the dust settles, how will Jewish people feel to both have been a victim of genocide and a perpetrator thereof. Tell yourself what you will history will not be kind to Israel.

      • Mordechai Yitzchak says:

        Every time that the world rises up in collective antisemitism (and it happens in every generation, and has for thousands of years), it’s always the same framing of Jews as being bloodthirsty killers of women and children while lusting for power or money at the expense of the so-called innocent. In previous iterations we have lost significant portions of our populations (crusades, pogroms, inquisition, holocaust, etc, etc.). Thankfully not this time! The antisemitic world is even more outraged now because the meek Jews have the gall to fight back, they even have a sovereign country and have an army now, dammit!. History will frame this correctly, as it always does. Antisemites will remain antisemites.

  • Colin Braude says:

    The BBC quoted Joan O’Donoghue, the President of International Court of Justice when it made its Provisional Measures Order in SA’s case v. Israel, as saying “the Court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the Court … it didn’t decide that the claim of genocide was plausible, it did emphasis in the order that there was a risk of irreparable harm to the Palestinians’ rights to be protected from genocide, but the shorthand that appears that there is a plausible case of genocide isn’t what the court decided”

    This has been spun by the ANC/Hamas as a finding of genocide.
    The ANC, for whom apartheid ended without any battles, are experts at psyops and bellpottingering tropes and slurs.

    As for their honesty in court, our own Supreme Court ruled:
    [evidence under oath] by the ANC …is utterly untenable and without veracity. The ANC’s version is not capable of belief … bald, uncreditworthy denials designed to creat fictitious disputes of fact”
    — ANC vs Ezulweni Investments ZASCA 159. 24 November 2023

    • Mr OK says:

      Genocide is a term thrown around now with reckless abandon. Clearly SA is doing Hamas’s bidding to protect them from eradication.
      Some regular anti-Israel commenters here spew genocide accusations without understanding context.
      Once Hamas is gone (the real oppressors with genocidal intent) the people of Gaza will have a chance. Doesn’t mean another radical group won’t fill the void, but it certainly leaves room for a peaceful solution in the future with Israel.
      If the existence of Israel is not acceptable then there will never be peace.

      • JP K says:

        Black is white. Up is down. Hamas are the oppressors. Not Israel, which was formed on top of an existing population, is an Apartheid state and has Gaza under siege in what is called an open air prison. Hamas are genocidal in intent not Israel which, apart from its clear statements inciting genocide, is actually slaughtering and starving Gaza.

        • Mr OK says:

          Adios Amigo Go on then and show your support for those lovely Hamas pacifists. Hamas can use more fighters in Gaza against the so called evil Jews. You’ll probably have access to 72 virgins when you meet your maker. I see you JP K, I won’t call you an antisemite as it confuses you. You’re simply anti Israel and a Jew hater.
          You say Israel is built on top of an existing population? I suppose the Temple Mount in Jersulem was just unlucky that the Al Aqua mosque fell out of the sky and landed on top of the original synagogue.

      • John P says:

        Please share your sources regarding SA doing Hamas’s bidding.

        • Mordechai Yitzchak says:

          Blithe pro-Palestinian propaganda, oft repeated by JP, with little regard for dealing with facts when presented (as above)

    • JP K says:

      Thanks for clarifying. That is an important point. But at the same time it doesn’t matter. Time has marched on since then. E.g. Francesca Albanese, produced a report – Anatomy of a Genocide – Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 – in which she found there was reasonable evidence that Israel is committing genocide.

      So since the case was first brought to the ICJ, more Palestinians are dead. Mass graves have been found. More hospitals have been destroyed. There are no universities. Palestinians are being asked to move or die once more. Mass slaughter And so on and so forth.

      But hey, just release the hostages and it’ll all end right? Right.

      Given all that we’ve seen, given statements from Israeli leaders, and given expert opinion on this, it looks like genocide does it not?

  • Indeed Jhb says:

    This is a terrible time, unimaginable suffering on both sides. The Palestinians should get rid of Hamas and speak for themselves, only way out terrorism not the answer.
    Unfortunately, as far a SA involvement is concerned, election politics… touching on all the buttons the voters will recognize, the ANC fighting for the oppressed, zero to hero and before the election – timing is everything.
    I know very cynical, but 30 years on they do not inspire much faith – the overpaid cadres have sort of chiseled away at that and left only potholes

  • Jeff Robinson says:

    If Hamas was purely a resistance army waging a war against injustice, it would get my support 100%. But its conduct on October 7th makes it impossible to grant it such a status. As along as Hamas remains unequivocally a jihadist force committed to the establishment of another Islamic theocracy, it is understandable that the war carries on. At this stage, if the Hamas leadership really cares about what is happening to the people of Palestine, as any caring person must, they should surrender and let reconstruction begin. There is no way that Netanyahu and his gang are going to survive in charge and given the reaction of the world to their inhumanity and history of oppression, the way now may be open to what is the only sane option for the future, one nation from the river to the sea with a completely secular government and equal rights for all. Apartheid South Africa wanted the world to accept a multi-state solution which was rightly rejected. What is different with Israel-Palestine?

    • Kenneth FAKUDE says:

      Thank you Jeff for the realistic and balanced view, its not about which view one takes its about the reality on the ground.

  • Denise Smit says:

    The case of SA against Israel has three objectives. To turn attention away from the ANC failures and destruction and corruption, broken , unsafe state in SA, and most problably to be a proxy for Iran to bring the case to the court in exchange for funds from Iran. The last is to prop up their terrorist buddy Hamas by trying to prevent Israel going into Gaza, by all means, so that Hamas can continue it’s war on Israel. Dangor said this in other words outside of court

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