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

Israel asks the ICJ to throw out SA’s ‘curated and inaccurate’ genocide case
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)
Ferial Haffajee
By Ferial Haffajee
12 Jan 2024
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South Africa empties the word ‘genocide’ of its unique force and meaning, Israel argues before the World Court.

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.

https://www.youtube.com/watch?v=HVV8adzzcH8

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. 

Malcolm Shaw, ICJ genocide case 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 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)



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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.”

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. 

Palestinian protesters, genocide 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 

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