Israel On Trial Day 2: Israeli defense requests ICJ dismiss South Africa’s genocide charge

South Africa presented their arguments to the court at a three-hour hearing on Thursday in the Hague, the Netherlands.

Legal adviser to Israel’s Foreign Ministry Tal Becker and British jurist Malcolm Shaw sit inside the International Court of Justice
THE HAGUE — Pushing back against South Africa’s complaint at the International Court of Justice, Israel argued on Friday morning that it is Hamas perpetrating genocidal acts, not the IDF.

‘’If there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel,’’ stated Tal Becker, who opened Israel’s defense presentation, adding that ‘’if there is a concern about the obligations of states under the Genocide Convention, then it is in relation to their responsibilities to act against Hamas’s proudly declared agenda of annihilation, which is not a secret, and is not in doubt.’’

A senior Israeli diplomatic source told the Jerusalem Post, ‘’we are confident that the court will understand the reality in Gaza,’’ underlining that Israel has been strictly following international legislation since the launch of the ground operation.

Much like on Thursday, when South Africa presented its case, the court building in the Hague was packed by journalists, including TV crews from across Europe. The court room itself offered a few seats to the public, on the basis of ‘’first come, first served,’’

with some young people actually sleeping outside the courtyard overnight Thursday, just to get a spot. The small, yet remarkably efficient, communication team of only 4 people at the ICJ told the Jerusalem Post they never had to deal with such pressure from the press to assist a hearing.

South Africa’s accusations against Israel

South Africa accused Israel of carrying out genocide in Gaza and has asked the ICJ to issue provisional measures stopping all Israeli military operations in the Strip. On Thursday, South Africa presented its arguments to the court, with an eight-people team that included also the country’s justice minister. Leftwing European politicians such as French Jean-Luc Mélenchon and Britain’s Jeremy Corbyn, alongside Palestinian officials, accompanied the South African delegation, in a clearly political demarche. The Israelis, on the other side, sent to the Hague a purely-legal team, accompanied by a handful of Israeli diplomats handling communications.

PEOPLE LISTEN to the proceedings inside the ICJ yesterday, in The Hague. (credit: THILO SCHMUELGEN/REUTERS)

The historic, two-day hearing has been drawing international attention. Pro-Palestinian activists gathered early Friday morning outside the court, carrying dolls rapped in white cloth stained with red, as if babies injured or killed. Some of the activists carried signs showing a picture of Prime Minister Benjamin Netanyahu next to a picture of Hitler.

Opposing them, with the police separating the two groups, pro-Israeli demonstrators dressed a ‘’Shabbat table,’’ with empty seats for the hostages held in Gaza. Yellow flowers were positioned on the empty plates. The demonstrators carried Israeli flags and signs with pictures of the hostages and of Israelis killed on Oct. 7, underlined by ‘’they cannot testify’’ and singing ‘’Shalom Aleichem.’’ Family members of hostages called on the court to cease immediately the hearings, stressing their distress over the procedure which completely ignores the plight and suffering of the kidnappees.

Israelis host an empty Shabbat table to mark the Israeli hostages still in Hamas captivity outside of the ICJ at the Hague, the Netherlands, January 12, 2024

Israel’s argument at the Hague

Refuting the South African claims, the Israeli team argued that the court has no jurisdiction over this case, as no disputes exist between the country and South Africa. Pretoria claims it had sent to the Israeli embassy numerous requests to discuss the situation in Gaza, but never received a response. British international law expert Malcolm Shaw, who leads the Israeli legal team, argued that South Africa was misleading the court, citing the exact dates of Israeli responses to the diplomatic notes it received, including proposals for meetings between South African and Israeli officials to talk about Gaza.

The Israeli team further argued that claims of genocide fully lack credibility, in view of Israel’s efforts for humanitarian aid to Gaza residents. These efforts include Israel enabling unlimited amounts of fuel, food, water, and medical supplies to be entered into the Gaza Strip.

Doctor Galit Raguan noted that since the beginning of the Israeli military operation, the IDF dropped millions of leaflets with instructions to Gaza residents where they should flee and how they should protect themselves from bombing. 70,000 phone calls were placed by the army to Gazans, with similar explanations, stressing that these moves are in stark contradiction to claims of Israel embracing genocidal policies.

“The applicant astonishingly claims that these efforts are themselves genocidal. A measure intended to mitigate harm to civilians is proof, according to the applicant, of Israel’s intent to commit genocide when it in fact proves the exact opposite,” noted Raguan.

Israel reminded the court that in contrast to its humanitarian efforts, Hamas has been stealing and hoarding the assistance material transferred into the Gaza Strip for the needy. The Israeli legal team also said that the South African complaints ignore in fact all that Hamas has been doing since Oct. 7, as if there are no terror tunnels, no terrorists dressed as civilians, no Hamas operatives exploiting safe zones, schools, and mosques as military infrastructure. The hostages, it was noted, are all but forgotten. South Africa’s complaint dismisses the right, the obligation of the Israeli government to defend it citizens, it was said.

‘’Astonishingly, the Court has been requested to indicate a provisional measure calling on Israel to suspend its military operations. But this amounts to an attempt to deny Israel its ability to meet its legal obligations to the defense of its citizens, to the hostages, and to over 110,000 internally displaced Israelis unable to safely return to their homes,’’ noted Becker.

Shortly after Friday’s hearing, Foreign Minister Israel Katz said that, ‘’The Israeli delegation revealed the true face of South Africa as the loyal representative of a terrorist organization that inhumanely slaughtered babies, children, women and the elderly.’’

Katz added that ‘’When it comes to Israel, it seems that the double standards of some of the world’s countries are shockingly blatant. South Africa’s claims against Israel are baseless. On the contrary, no evidence was presented, except that of an unparalleled defensive and moral war.’’

The ICJ is expected to rule on the provisional measures requested by South Africa in a matter of days, but Israeli experts are worried that politics will play a major role in the decision taken.

‘’True, the international judicial institutions are very prestigious, with highly professional people serving there, but they are still very politicized, by the very way they are constructed. It’s built-in in the system,’’ warns veteran ambassador Daniel Carmon, who had also served as deputy chief of mission in the Israeli delegation to the UN.

‘’There are other procedures against Israel ongoing at the ICJ and ICC, though not similar to the complaint on genocide, which is a first. In 2022 the UN General Assembly asked the ICJ to look into the legality of West Bank settlements. The procedure is completely different because the one going now is based on a convention Israel is signed on, but you can see in both cases how politicized this all is. In a certain way the judges presiding are bound by the politics of their countries of origin,’’ Carmon tells the Post.

Concerns were also evident amid the pro-Israeli demonstrators. One of them told the Post that ‘’for the local pro-Palestinian youngsters, there is no Kfir Bibas, no Maayan Levy, or Naama Levy, no one is held against his or her will in Gaza. The destruction caused to the Strip for years now, is pinned on Israel. Oct. 7 is just a passing episode in their eyes.’’