The International Court of Justice on Friday heard Israel's defense against South Africa's accusations that it had carried out acts of genocide in Gaza, on the second day of hearings that were broadcast live for the world to watch.
Almost 24,000 people have been killed in the enclave since October 7, almost 10,000 of them children. Thousands more are lost under the rubble and presumed dead.
South Africa claims that Israel has violated the 1948 Genocide Convention in its war on Gaza. On Thursday, the legal team representing South Africa requested that the court issue emergency measures to stop the continued aerial bombardment and ground invasion of the strip.
That request for provisional measures was the crux of this week's proceedings.
In their counter-presentation on Friday, Israel's representatives, led by British lawyer and academic Malcolm Shaw KC, argued that South Africa's request “distorted” and “decontextualized” Tel Aviv's military actions in Gaza, and that by accusing Israel of genocide, Pretoria was “watering down” the meaning of the crime.
Below are Israel's main counterarguments and a look at whether they hold up:
Right to self-defense
Israel argued that Hamas's attack on army outposts and surrounding villages in southern Israel – as well as the taking of hundreds of captives – on October 7 is what started the Gaza war, and that Israel has the right to defend itself. according to international law.
Tal Becker, a defender for the Israeli team, told the court that the Genocide Convention was drafted after the mass killing of Jews in the Holocaust and that the phrase “never again” is one of “the highest moral obligations” for Israel.
By seeking an interim order against Israel's invasion, Becker said, South Africa is trying to deny Israel the opportunity to fulfill its obligations to captured captives and to Israelis displaced after the Oct. 7 attacks from communities near the border with Gaza.
But Neil Sammonds, a senior Palestine campaigner at the human rights organization War on Want, told Al Jazeera that Israel's arguments are “weak”.
“Of course, both South Africa and human rights organizations like us condemn the killing of civilians and the taking of hostages. [by Hamas]Sammonds said. “But this in no way justifies Israel's response. As an occupying force, Israel has no right to self-defense; “This argument does not hold up.”
In 2003, the ICJ ruled that an occupying power cannot claim the right to self-defense, in a case involving Israel's construction of a separation wall in the occupied West Bank. Israel has not considered itself an occupying power since its withdrawal from Gaza in 2006. However, the UN and a variety of human rights organizations have rejected this claim, while international jurists have been divided over whether Gaza was “occupied” under law. international.
Genocidal intent
The Israeli legal team said South Africa's accusations that Tel Aviv has an inherent intention to “destroy” the Palestinian people are based on “random assertions.”
However, Akshaya Kumar, director of crisis advocacy and special projects at Human Rights Watch, told Al Jazeera that it was implausible to pass off comments from senior officials as “random statements.”
“Some of the most revealing statements were made by the president, the prime minister and the defense minister and other key decision-makers,” Kumar said.
In his presentation, Shaw said that Prime Minister Benjamin Netanyahu's remarks referring to “Amalek” – specifically cited by the South African team on Thursday – had been taken out of context.
In the cited statement, Netanyahu told Israeli troops preparing to invade Gaza on October 28 to “remember what Amalek has done to you,” referring to a biblical call to annihilate a distinct group of people.
Shaw, however, said Netanyahu had completed the statement by saying “the [Israeli military] It is the most moral army… and it does everything possible to avoid” the slaughter of innocents.
However, in available clips of the recording, Netanyahu does not say those words after referring to the biblical story. He said: “Our brave troops and fighters now in Gaza… and other regions of Israel are joining this chain of Jewish heroes, a chain that began 3,000 years ago from Joshua ben Nun to the heroes of 1948… They have one goal. supreme. objective, completely defeat the murderous enemy and guarantee our existence in this country.”
Genocidal actions
In response to allegations of actual genocidal actions, including mass, indiscriminate killings of civilians, Israel's lawyers claimed that Hamas was using civilians as human shields and that Israeli troops were trying to “minimize” harm to civilians.
However, there have been cases of civilians being shot and killed when they were clearly unarmed and attempting to evacuate. In a recent video, verified and widely shared on social media, a Palestinian grandmother is seen attempting to pass through an exit route from northern Gaza, declared safe by Israeli forces, while holding hands with her five-year-old grandson. , who was waving a white flag. A sniper shot her dead.
In December, Israel also killed three of its own citizens who appeared to have escaped Hamas captivity. They also waved white flags and wrote SOS messages with leftover food. Israel responded to this at the time by saying that its soldiers were acting under enormous pressure and had made mistakes.
Israel's lawyers also said Friday that any concerns that its troops had “transgressed” the rules of war would be “addressed by Israel's robust legal system.” But Kumar said HRW had previously uncovered evidence that Israel operates a “deeply flawed and unequal justice system.”
“The authorities have consistently failed to hold their forces accountable when security forces kill Palestinians, including children, in circumstances where the use of lethal force was not justified under international standards,” Kumar said.
Lack of jurisdiction
Shaw said Pretoria had not contacted Tel Aviv about the case before applying to the court, as required by the court's own rules.
The Israeli representative claimed that South Africa had given him only a few days to respond to a notification that he was committing genocide. He said Tel Aviv had been willing to “talk,” but South African representatives first rejected a written letter because of a holiday, and then responded that there was “no point” in having a discussion. That, Shaw said, raised the question of whether the case should have come before the court, meaning the court might lack the power to rule.
To bring a case to the ICJ, it is necessary to demonstrate that there has been a previous “dispute” between the two parties, and that both parties need the ICJ to intervene to properly interpret the Genocide Convention. South Africa may have to prove that it previously notified Israel that it believed Tel Aviv was committing genocide in Gaza, and that there was a “dispute” or disagreement between the two sides on the issue, to justify bringing this case to court in all.
South Africa has not responded to accusations that it rejected such dialogue.
Humanitarian aid
Israel's representative said accusations that it is blocking food, water, fuel and other critical supplies from Gaza are “inaccurate,” adding that “70 trucks” of food aid were allowed into Gaza before the war and that number has increased to “106.” trucks in the last two weeks.”
According to the UN, 500 aid trucks entered Gaza daily before the war, after which Israel banned all aid from entering. About 200 trucks were allowed in daily during a brief lull in fighting agreed upon between Israel and Hamas, but outside the truce period, fewer than 100 trucks entered.
Galit Raguan, acting director of the international justice division of Israel's Justice Ministry, said in her presentation that Hamas confiscates aid supplies for its fighters. Israel, Galit said, had not attacked hospitals and had helped evacuate patients. She said Israeli forces had searched schools, U.N. warehouses and hospitals because Hamas fighters were in those places, adding that Israel warns the population of an imminent bombardment through phone calls and dropping leaflets.
However, Palestinian journalists have repeatedly reported that the incessant shelling of the Strip often occurs without warning and that journalists themselves are harshly attacked. Several hospitals have been bombed and left dysfunctional.
War on Want's Sammonds noted that Israel did not begin its blockade of the strip on October 7. “There has been an illegal blockade in Gaza for 16 years and it was already considered collective punishment. [before the war started]. The help that has arrived [since the war started] “It is just a small drop compared to what is needed,” he said.
HRW's Kumar added: “In practice, Israeli forces are deliberately blocking supplies of water, food and fuel, while intentionally impeding humanitarian assistance, apparently razing agricultural areas and depriving civilians of essential items for life.” their survival. Human Rights Watch has found that Israel is using hunger as a weapon of war.”
Whats Next?
Summing up Israel's arguments on Friday, Gilad Noam, Israel's deputy attorney general for international affairs, said the court should not order interim measures (to stop the attack on Gaza) because Israel considers Hamas a terrorist organization and because any measures that guy would cause harm to the Israelis.
The ICJ said it would announce its decision soon, but did not give specific dates. The court is likely to issue a statement in the coming weeks, experts said.
It is difficult to predict which direction the court will tilt. Al Jazeera senior political analyst Marwan Bishara said Israel presented strong “jurisdictional and procedural arguments”, referring to Israel's accusations that South Africa did not give it enough time to respond before filing its claim at the Hague Tribunal. . He described this part of his argument as one that “may have made a dent” in the South Africa case.
But “Israel lost the moral, factual, historical and humanitarian argument because of the way the situation in Gaza has unraveled, with the sheer death and industrial slaughter there,” Bishara said, adding that Israel's attempts to convince the court of his handling of the case humanitarian situation there were not convincing.
Mike Becker, a professor of international law at Trinity College Dublin, said the court would be in a difficult position: It might not want to order Israeli troops to leave Gaza when it cannot give a similar cease-and-desist order to Hamas. which is not a party to the Genocide convention.
“South Africa has done enough to meet the requirements,” Becker said, alluding to Pretoria's case for an emergency suspension order. “But the provisional measures [the court will give] “It may largely seek to force Israel to honor the commitments it has made today regarding humanitarian aid,” he said.
