Israel refutes South Africa’s genocide charges at the ICJ

The world is waiting for 17 international judges to give an interim ruling on a critical court case. On 11 and 12 January, Israel faced off against South Africa at the International Court of Justice (ICJ) in The Hague. South Africa attempted to prove that Israel was guilty of contravening the 1948 Genocide Convention in its military actions in Gaza since 7 October 2023 – and much before, it claimed. South Africa’s legal team hurled serious allegations against Israel, and called for “provisional measures” to bring an urgent halt to the hostilities.

Israel’s lawyers strongly repudiated the charges, arguing that if any party should be tried for genocide, it’s the terrorist group, Hamas, which killed nearly 1 200 people on 7 October. Hamas, however, falls beyond the remit of this court as a non-state actor. With interim findings expected from the bench soon, much is on the line. And considerable damage has already been done to Israel in the realms of public relations and propaganda.

On 11 January, South Africa’s legal team claimed that the current operations in Gaza have a broader context, describing “Seventy-five years of apartheid, 56 years of occupation, and 16 years of siege.” South Africa said it was bringing the case as a concerned global citizen watching a genocide proceed.

The United Nations Genocide Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group”. Israel said South Africa sought to prove this intent through quoting – often out of context – controversial comments made by Israeli politicians and soldiers about the need to destroy Hamas.

Israel wanted to “turn the Gaza Strip into a slaughterhouse”, said one of South Africa’s lawyers, Tembeka Ngcukaitobi. He said the intention to commit genocide was “fully understood, chilling, overwhelming, and incontrovertible”.

Vaughan Lowe, Kings Counsel (KC), said this wasn’t “a carefully organised manhunt for Hamas” but a campaign to “kill, maim, and terrorise the Gazan population [through] … bombs, starvation, and disease”.

South Africa laid out in detail grim statistics on the dead, injured, and displaced in Gaza and the grave humanitarian costs and consequences. Advocate Adila Hassim said Israel’s actions “form a calculated pattern of conduct indicative of genocide, specifically targeted against Palestinians in Gaza”.

“No matter how monstrous or appalling an attack or provocation, genocide is never a permitted response,” Lowe said. “Every use of force must stay within the limits of international law … no matter what Hamas has done, an attack on the whole of Gaza and its population to destroy them cannot be justified.”

Arguing for Israel, Malcolm Shaw KC, said, “Genocide is a uniquely malicious crime, the zenith of evil, the crime of crimes, the ultimate wickedness. Here, there’s no genocidal intent. This is no genocide.”

Israel’s Dr Tal Becker added that Israel knew about genocide all too well from its history. He spoke about how Hamas used the Palestinian population as human shields, embedding themselves among the population.

Becker said South Africa had “a distorted factual and legal case” with arguments “barely distinguishable from Hamas’s rhetoric. Hamas’s responsibility [for the war] and Israeli victims are removed from view. South Africa seeks to weaponise genocide against Israel, and subverts the objective and purpose of the Genocide Convention itself.”

Speaking from The Hague, Lior Haiat, the spokesperson for the Israeli Ministry of Foreign Affairs, told the SA Jewish Report, “South Africa basically used the Palestinian people as ‘legal human shields’ for Hamas, and it’s representing Hamas in this court.”

Shaw showed how poorly South Africa had acted to manufacture artificially a dispute between the two countries, on which basis the case could be taken to the ICJ. Israel lawyer Gilad Noam said, “The court lacks prima facie jurisdiction – there was no dispute at the time of the submission. This misleads the court.”

“South Africa had the right optics,” said Benji Shulman, the director for public policy at the South African Zionist Federation. “A very diverse team, the South African and Palestinian scarves. They also took along media to cover this, like the editor of News24. For propaganda, it was structured very well. But I think it struggled to prove intent, and South Africa was shown up badly in terms of how it engineered this ‘dispute’.”

Gavin Rome, advocate and senior counsel, said there was a slim chance the case could be dismissed due to South Africa’s concoction of a dispute. “Then, the South Africans would have egg on their faces,” he said. “But on the substantive issues, this is likely to take years to adjudicate.”

“Israel’s response was thorough and robust, and highlighted the significant efforts taken by Israel to protect and provide for Palestinian civilians, putting the lie to South Africa’s claims,” said Natasha Hausdorff, barrister and legal director at UK Lawyers for Israel Charitable Trust. South Africa hardly mentioned Israel’s actions to improve the humanitarian situation.

Israel has often shunned United Nations processes that put it on the defensive, but felt this case was important to answer. “Israel has supported the Genocide Convention from the beginning,” Haiat said. “It was created after World War II and the Holocaust. Our participation shows the international community and the UN system how baseless and ridiculous it is to accuse the victims of the 7 October massacre of genocidal intentions.”

Blinne Ni Ghrálaigh, KC, appearing for South Africa, said, “Huge swathes of Gaza are being wiped from the map” with an average of 247 people killed daily, including teachers, medical staff, journalists, and UN workers. She said, “There couldn’t be a clearer case of urgency … nowhere and nobody is safe.”

She urged the court to grant requested “provisional measures”, which include an immediate cessation of Israeli hostilities in Gaza, upholding the human rights of the Palestinians, and Israel ceasing to commit “genocidal acts”.

If all granted, the “provisional measures” would allow Hamas to rearm and to continue to hold its hostages, while tying Israel’s hands. “The Genocide Convention will be turned from an instrument to prevent horrors into a weapon in the hands of terrorist groups,” Noam said.

On why this case was brought, Shulman said, “In my view, South Africa is ‘running interference’ for Iran here and its allies, Hamas. This is like another World Conference against Racism and the ‘Zionism is Racism’ UN resolution. South Africa is using international forums to undermine Israel.”

Speculating why South Africa mounted the case, Shulman said, “This is an election year, and I wouldn’t be surprised if the African National Congress got some sort of monetary kickback – now suddenly the party’s coffers are full.”

“As absurd as South Africa’s allegations are,” said Hausdorff, “that it brought this case was perhaps unsurprising. It used its application to repeat the canards of many pre-existing reports, and it misrepresented statements by Israeli officials, seeking a judicial stamp of approval on these falsehoods.

“The fact that the United States, United Kingdom, German, and other law-abiding states have called out this meritless case is significant,” Hausdorff said. “It indicates that upholders of the rule of law are worried about the credibility of international legal institutions which is under threat with these lawfare initiatives.”

Rome outlined the three possible outcomes: the ICJ could dismiss the application; uphold all the measures requested; or – most likely – support just some measures. “It’s hard to predict and not a foregone conclusion it will hold for South Africa,” he said. “Both sides will try to spin the verdict.”

Most experts felt Israel would get a fair hearing from the ICJ.

If the finding goes against Israel, there’s a sense that Israel might just ignore the ruling. The matter would go to the UN Security Council, where Israel would rely on the US veto.

The ICJ’s interim verdict is expected within days.