The second round of hearings at the International Court of Justice in The Hague (ICJ) took place on Friday, in the case in which South Africa accuses Israel of committing genocide against the Palestinians. South Africa has asked the court to halt the war while the trial, which could take many months, is decided. According to the Palestinian authorities, the death toll in the Gaza Strip has exceeded 23,700 people. Israel today asked the court neither to stop the war, nor to hear South Africa’s case. – They want to make Israel defenseless, said Tal Becker, who is the Israeli Foreign Ministry’s legal advisor. The hearing ended just after 13.00 Friday 12 January. Referring to the 7 October attack He referred to Israel’s close association with the concept of genocide, which he believes South Africa is now “using as a weapon”. – The State of Israel is uniquely aware of why there is a genocide convention, said Becker. – The promise of “never again” is one that applies to all peoples, continued the Israeli jurist. He then announced that Israel will show the court a number of graphic images from October 7, and read several harrowing accounts of Hamas’ attacks on civilians in Israel. The core of Israel’s defense is that the actions in Gaza were committed in self-defence. – Of course, these terrible actions do not justify horrors in return, even less genocide. But they justify a state’s right to defend itself, said British jurist Malcolm Shaw, who represents Israel. The British jurist Malcolm Shaw prepares to address the court in the Peace Palace in The Hague. Photo: Reuters In the courtroom yesterday, South Africa’s lawyers said that Israel has a deliberate strategy to commit genocide against a significant part of the Palestinian population, namely those in Gaza. Israel’s actions and statements cannot be interpreted in any other way, argued the South African jurists. What does the Genocide Convention say? Convention on the Prevention and Punishment of the Crime of Genocide, known as the Genocide Convention, was adopted by the UN General Assembly in 1948, and entered into force in January 1951. 137 states (indicated in green on the map), of which Israel, South Africa, and Norway, have signed the convention. Article 2 of the Convention defines genocide as “any of the following acts carried out with the intention of destroying, in whole or in part, a nation, a race, an ethnic or religious group: Killing members of the group Causing serious physical or psychological damage to members of the group To deliberately create for the group the living conditions that are intended to physically destroy the group in whole or in part. To impose on the group measures that prevent births. To forcibly transfer children from the group to another group.” Article 3 defines the following acts as punishable: Genocide Conspiracy to commit genocide Direct and explicit incitement to commit genocide Attempt to commit genocide Complicity in genocide What is the International Court of Justice ICJ? Photo: Peter Dejong / AP The International Court of Justice (ICJ) is the UN’s main body for legal issues. It is in this court that legal disputes between two countries are dealt with, and must not be confused with the International Criminal Court (ICC), which hears cases against individuals and organisations, and is also based in The Hague. The ICJ was established together with the UN’s six other main bodies on 26 June 1945, and since then has dealt with 191 cases. The Court has previously decided cases on what constitutes territorial boundaries between states. All 193 UN member states, of which South Africa and Israel, are members of the ICJ, apart from the two observer states of the Vatican and Palestine. The court has 15 judges from each country, and one president. The current president is American Joan Donaghue. – Distorted facts – The picture that has unfortunately been painted before the court is a deeply distorted factual and legal picture. The whole case rests on a carefully curated and decontextualized description of reality, Becker told the court today. Shaw picked up this thread in his arguments, pointing to attempts by Israel to offer humanitarian aid and ask civilians to evacuate to “safe zones”. Leaflets asking civilians to evacuate to safe zones are dropped over Gaza in November 2023. Photo: AFP The UN and all humanitarian organizations present in the Gaza Strip warn of starvation, the spread of disease and an almost non-existent ability to provide medical aid within the territory. Israel has repeatedly refused to open humanitarian corridors. At the same time, civilians who have fled to “safe zones” have repeatedly been hit by rocket attacks. – The reality clearly deviates from the guidelines to which the defense refers here. It will be interesting to see to what extent the court will emphasize this, comments lawyer Kjell Magnus Brygfjeld. He is surprised by Israel’s strategy. – What surprises me is how much time the Israeli defense spends arguing that the real damage in Gaza is Hamas’ fault, says Brygfjeld. Becker believes South Africa is now acting as Hamas’s legally extended arm. – If South Africa’s demand that Israel must stop the war against Hamas is met, then the absurd effect is that by applying the Genocide Convention, you protect an organization that is actually trying to achieve genocide, argued Becker. South Africa’s Minister of Justice Ronald Lamola and ambassador to the Netherlands in place in the courtroom in The Hague. Photo: Reuters South Africa has repeatedly condemned Hamas’ attacks on 7 October. Israel has repeatedly denied that it has committed genocide, despite other statements from Israeli authorities. A number of statements are interpreted by South Africa and experts as calls for genocide. Benjamin Netanyahu, Prime Minister of Israel October 28: “You must remember what Amalek did to you” Reference: In the first book of Samuel, the God of the Israelites, Yahweh, says that the Amalekites must be exterminated. “Now go and strike Amalek and destroy everything they have. Don’t spare them! Kill both man and woman, infant and suckling, ox and sheep, camel and donkey,” declared Yahweh. Source: Netanyahu said this during a press conference on October 29 when he announced the ground invasion of Gaza. Netanyahu is known and criticized for using religious references to legitimize the war. JACQUELYN MARTIN / AFP Yoav Gallant, Israel’s Defense Minister October 9: We are “imposing a complete siege on Gaza. No electricity, no food, no water, everything is closed. We fight against human animals and we act accordingly”. Reuters Security Minister Itamar Ben-Gvir, November 10: “To be clear, when we say that Hamas must be destroyed, we also mean those who celebrated, supported and those who distributed candy. They are all terrorists and they must be destroyed.” Eitan Hess-Ashkenazi / Scanpix/Ap Agriculture Minister Avi Dichter, 11 November: “We have to carry out a new Nakba. What we are doing now is actually creating Gaza’s Nakba” They call it “al-Nakba”, the catastrophe when hundreds of thousands of Palestinians were displaced from their homes, and hundreds of villages destroyed with the aim of establishing the state of Israel. The disaster lasted from 1948 to 1956. Wikimedia Commons Minister of Cultural Heritage, Amihai Eliyahu, November 1: “The northern part of the Gaza Strip is more beautiful than ever. Everything is razed and blown apart, simply put a feast for the eyes… We will have to talk about the next day. In my view, we will give plots to all those who fought for Gaza over the years.” – These randomly selected statements in no way represent the policy of the Israeli government, argued Shaw. Lawyer on Israel’s defence: – As expected The internationally renowned lawyer Francis M. Boyle has told news that he believes South Africa’s case is solid. At the same time, international law expert Geir Ulfstein says that the question of intention in particular is challenging to prove. Israel’s defense leaning on the right to self-defense after 7 October is not surprising, says Brygfjeld. – It is as expected, he says. Brygfjeld thinks South Africa’s legal team did a good job. Kjell Magnus Brygfjeld is a lawyer at Advokatfirma Endresen Brygfjeld, and led the Acer case against the Norwegian government in the Supreme Court. Photo: Private – I think the presentation was very good. It was solid in its reasoning on both facts and law, and it was very persuasive on the question of “intention”, which will likely be a decisive issue in the case. Brygfjeld thinks the South African lawyers were very sober. – The presentation was factual, but primarily sober in relation to the atrocities we are witnessing in Gaza. Boyle tells news that one of the biggest challenges for Israel will be to prove that it enjoys the right to self-defence under the UN Treaty’s Article 51. It assumes that all states have the right to defend themselves against attacks from other states. As the Palestinian territories are occupied territories, in 2004 the ICJ issued an advisory opinion that Israel does not have the right to use Article 51. Pro-Israel demonstrators outside the Peace Palace in The Hague in the Netherlands during the genocide case against Israel. Photo: AFP Drops the charges, but appears in court Israeli President Isaac Herzog is among several Israelis who have dropped the charges. He calls South Africa’s case “terrible” and “absurd”. Nevertheless, Israel has chosen to appear in court to defend itself. – We appear in court because we are innocent, says spokesperson for the Israeli Foreign Ministry Haiat. It is the first time Israel appears in court for a case at the ICJ. Joining the team are lawyers Malcolm Shaw from Great Britain and Tal Becker.
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