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

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)

By Victoria O’Regan

17 May 2024

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

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World

‘Rafah is Hamas’s stronghold’

Argument of self-defence

Humanitarian aid