The U.N.’s International Court of Justice (ICJ) in The Hague, a city in the Netherlands, held two days of hearings last week on South Africa’s accusation that Israel was committing genocide against the Palestinian population of Gaza in its efforts to destroy Hamas in response to its heinous October 7 attack on southern Israel.
South Africa is urging the ICJ to issue an immediate order for a cease-fire, to stop Israel’s attacks on the remnants of Hamas in Gaza, while the court decides on the merits of South Africa’s genocide accusation, a process which is likely to take years.
Israel’s position is that South Africa’s accusation is “a concerted and cynical effort to pervert the meaning of the term ‘genocide’ itself.” Israel is asking the court to dismiss the case as groundless and to refuse South Africa’s request for a cease-fire order to halt the war in Gaza.
On the first day of hearings, South Africa’s legal team claimed that Israel’s bombing and siege of Gaza showed that its leadership was “intent on destroying the Palestinians as a group in Gaza.” The South Africans also argued that Israel’s intensive air and ground attacks were intended to “bring about the destruction of its Palestinian population” in Gaza.
SOUTH AFRICA HAS LONG CHAMPIONED THE PALESTINIAN CAUSE
South Africa’s Justice Minister, Ronald Lamola, argued that Israel should be found guilty of genocide, despite the fact that it was attacked by Hamas first, because, “no armed attack on a state territory, no matter how serious, even an attack involving atrocity crimes, can provide any justification for or defense to breaches to the convention.” Lamola then added that “Israel’s response to the 7th of October 2023 attack has crossed this line.”
Lamola also argued before the court that the “violence and the destruction in Palestine and Israel did not begin on the 7th of October, 2023,” and that Israel was already guilty of “systematic oppression and violence” against Palestinians for decades before the Hamas attack on that day.
On the second day of court hearings, the Israeli defense team responded that South Africa had presented a “grossly distorted” picture of the war, because it largely ignored the heinous Hamas October 7 attack, in which its terrorists brutally murdered 1200 mostly civilian Israelis, took 240 people hostage,
and committed unspeakable atrocities against many Israeli women, children and infants.
SOUTH AFRICA IGNORES HAMAS’ ILLEGAL PRACTICES
In addition, South Africa’s 84-page written complaint against Israel makes no mention of Hamas’ longtime practice of embedding its military installations and storing its weapons throughout Gaza’s civilian infrastructure. These include sites that, under international law, are supposed to be de-militarized and protected from attack, including hospitals, mosques, schools, and U.N. facilities. Nevertheless, South Africa criticizes Israel for attacking them when they are used for military purposes.
The South African complaint also makes no mention of Hamas’ massive network of military tunnels, much of which is located under civilian locations, except, once, when it raised concerns over the alleged ecological impact of Israel’s efforts to flood the Hamas tunnels with water pumped into them from the Mediterranean Sea.
Tal Becker, a legal adviser to the Israeli Ministry of Foreign Affairs, opened his defense of Israel by highlighting the absurdity of the genocide charge against it, because, “seared in our collective memory is the systematic murder of 6 million Jews, as part of a premeditated and heinous program for their total annihilation.”
QUESTIONING THE COURT’S JURISDICTION
He also argued that since the Genocide Convention was only intended to “address a malevolent crime of the most exceptional circumstances,” and was “not designed to address the brutal impact of intensive hostilities” on civilians during conventional warfare, the ICJ does not have jurisdiction to pass judgment on Israel’s military tactics in Gaza.
“If there have been acts that may be characterized as genocidal,” Becker continued, “then they have been perpetrated against Israel. If there is a concern about the obligations of states under the Genocide Convention, then it is about their responsibilities to act against Hamas’ proudly declared agenda of annihilation, which is not a secret, and is not in doubt. . .
“What Israel seeks by operating in Gaza is not to destroy a people, but to protect. . . its people who are under attack on multiple fronts. . .
“Israel seeks neither to permanently occupy Gaza nor to displace its civilian population. It wants to create a better future for Israelis and Palestinians alike, where both can live in peace, thrive and prosper, and where the Palestinian people have all the power to govern themselves, but not the capacity to threaten Israel,” he said.
HAMAS IS ULTIMATELY RESPONSIBLE FOR CIVILIAN SUFFERING IN GAZA
Becker acknowledged that “The civilian suffering in this war, like in all wars, is tragic, it is heartbreaking.” But he also explained that it is a result of Hamas’ “reprehensible strategy of seeking to maximize civilian harm to both Israelis and Palestinians.”
He told the court that South Africa “has now sought to invoke this term [genocide] in the context of Israel’s conduct in a war it did not start and did not want, a war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad, and other terrorist organizations whose brutality knows no bounds.
“If the claim of the applicant [South Africa] is that Israel must be denied the ability to defend its citizens, the absurd upshot is that under the guise of genocide claims this court is trying to stop Israel [from] defending its civilians against an organization which pursues a genocidal agenda against them,” said Becker.
“The applicant,” Becker charged, “has regrettably put before the court a profoundly distorted factual and legal picture. The entirety of its case hinges on a deliberately curated, decontextualized, and manipulative description of the reality of current hostilities. There can hardly be a charge more false and more malevolent than the allegation against Israel of genocide.”
He argued, “that Israel has the inherent right to take all legitimate measures to defend its citizens and secure the release of the hostages. . . in response to the slaughter of October 7, which Hamas openly vows to repeat, and to the ongoing attacks against [Israel] from Gaza. . .”
SHARING THE HORRORS OF OCTOBER 7
Becker then recalled some of the horrors of that day. “They [Hamas] tortured children in front of parents and parents in front of children, burned people, including infants alive, and systematically raped and mutilated scores of women, men and children.”
He explained that Israel felt “compelled” to share with the court a “fraction of the horror” meted out by Hamas on Israeli civilians that day, “not because these acts, however sadistic and systematic, release Israel of its obligations to uphold the law as it defends its citizens and territory,” but because it was necessary to understand “the nature of the threat Israel is facing.”
Israel’s defense team also showed the court a video of an interview recorded shortly after October 7, in which senior Hamas leader Ghazi Hamad told a Lebanese TV channel: “We will do this again and again.” He also said the October 7 attack was “just the first time, and there will be a second, a third, a fourth.”
ISRAEL FIRST OBLIGATION IS TO PROTECT ITS CITIZENS
Becker also expressed his “astonishment” at South Africa’s call “on Israel to suspend its military operations [because] this amounts to an attempt to deny Israel its ability to meet its legal obligations to the defense of its citizens, to the hostages, and to over 110,000 internally displaced Israelis unable to safely return to their homes.”
He emphasized that the Israeli military is fully committed to complying with the international laws of war, “but it does so in the face of Hamas’ utter contempt for the law,” and that the “appalling suffering” of civilians, both Israeli and Palestinian, was the result of the illegal and immoral Hamas strategy of hiding behind the civilians of Gaza while deliberately targeting civilians in Israel.
Becker warned that “If the term ‘genocide’ can be so diminished in the way that [South Africa] advocates, if provisional measures [by the ICJ] can be triggered in the way that it suggests, the [Genocide] Convention becomes an aggressor’s charter. It will reward, indeed encourage, the terrorists who hide behind civilians, at the expense of the states seeking to defend against them.”
He also demanded that Israel must be exonerated because, “The key component of genocide — the intention to destroy a people, in whole or in part — is totally lacking. What Israel seeks by operating in Gaza is not to destroy a people, but to protect a people — its people, who are under attack on multiple fronts — and to do so in accordance with the law, even as it faces a heartless enemy determined to use that very commitment against it.”
A NEW MORAL LOW FOR THE UNITED NATIONS
That same day, at the U.N. headquarters in New York City, Israel’s U.N. ambassador, Gilad Erdan, called the prosecution of Israel at the ICJ a “new moral low” and said that by taking it on, “the U.N. and its institutions have become weapons in service of terrorist organizations.”
He also talked about the absurdity of Israel’s position 100 days after the October 7 attack, because it is being falsely accused of being the aggressor, when, in fact, it was the victim of the most heinous and deadly day of antisemitic mass murder since the end of World War II.
“One hundred days have passed since the massacre, and not even one discussion was held [by the U.N.] on releasing the hostages,” Erdan complained. “One hundred days when 136 women, children, and elderly are being held in Hamas tunnels, and there is yet to be a single discussion dedicated to their release. Not even one. Hamas has not even allowed the Red Cross to visit the hostages. We are talking about one of the worst war crimes there is!”
EXPRESSING ISRAEL’S OUTRAGE
Erdan was expressing the outrage felt by many Israelis at South Africa’s accusation which they see as an effort to turn the descendants of the victims of the Holocaust into the perpetrators, while ignoring the atrocities committed against them by Hamas on October 7.
Israel’s outrage was also shared by Germany’s democratic government, which is still shamed by the fact that its predecessor was responsible for the mass murder of European Jewry 80 years ago. Steffen Hebestreit, a German government spokesman, posted a tweet on X announcing that “the German government decisively and expressly rejects the accusation of genocide brought against Israel,” and plans to intervene on Israel’s behalf at the ICJ. The statement says that Germany believes that there is “no basis whatsoever” for South Africa’s accusation because “Hamas terrorists brutally attacked, tortured, killed and kidnapped innocent people in Israel, [and] since then, Israel has been defending itself against the inhumane attack by Hamas.”
Hebestreit also acknowledged that “in light of German history and the crimes against humanity of the Shoah, the German government sees itself as particularly committed to the Convention against Genocide,” and firmly opposes any effort at its politicization. Under the ICJ’s rules, after Germany files a declaration of intervention, it will be able to make legal arguments on behalf of Israel.
Israeli Prime Minister Binyomin Netanyahu welcomed the German announcement and called German Chancellor Olaf Scholz to thank him for Berlin’s support. According to a statement issued by Netanyahu’s office, he told the chancellor, “Your stance and Germany’s stance on the side of the truth moves all the citizens of Israel. The blood libel, which is full of hypocrisy and malice, must not be allowed to prevail over the moral principles shared by our two countries and the entire civilized world.”
GERMANY STANDING BY ISRAEL IN HARD TIMES
Scholz was the first Western leader to make a solidarity visit to Israel in the days after the October 7 attack. Chancellor Scholz said at that time that Germany “has only one place” during such hard times, “and that is alongside Israel.” He also endorsed Israel’s right and obligation under international law to protect its civilians.
While lawyers representing South Africa had argued that Israeli officials have deliberately used dehumanizing language to normalize “genocidal rhetoric” and incite its soldiers on the ground against the Palestinians in Gaza, British attorney Malcolm Shaw, who was the leader of Israel’s six-lawyer team in the ICJ courtroom, accused South Africa of presenting a deliberately “distorted picture” of the facts, by cherry-picking quotes and taking remarks out of context from Israeli politicians who have no decision-making authority.
Shaw argued that “In order to determine the policy and intentions of the government of Israel [in conducting the war against Hamas in Gaza], it is necessary to examine the decisions of the security cabinet and the war cabinet,” which alone have that responsibility.
“To produce random quotes [from politicians] which are not in conformity with that [Israeli] government policy is misleading at best,” Shaw said.
SOUTH AFRICA PROVIDES NO HARD EVIDENCE OF GENOCIDE
Most importantly, the South African legal team was unable to provide any evidence to support its allegations that the Israeli military had deliberately committed any genocidal acts in Gaza resulting in the systematic and deliberate slaughter of Palestinian civilians.
The Hamas-run Gaza health ministry in Gaza claims that over 23,000 people have been killed in the fighting. The Hamas figures cannot be independently verified, and include both civilians and combatants, as well as Palestinians killed when terrorist rockets misfired and landed inside Gaza. Nearly 85% of Gaza’s people have been driven from their homes, much of northern Gaza has been reduced to rubble by weeks of intensive Israeli air strikes and shelling, and according to humanitarian groups working in Gaza, a quarter of its population is facing starvation. The Israel Defense Forces (IDF) says that it has killed over 8,500 Hamas fighters in Gaza, in addition to 1,000 terrorists who were killed inside Israel during the initial October 7 attack.
While Israel does not deny that thousands of Palestinian civilians have died in Gaza since October 7, and many more are currently facing desperate living conditions there, without proof of deliberately malevolent Israeli intent, those facts alone do not justify a legal charge of genocide.
The Israeli legal team argues to the contrary, that the real reason for the suffering of the large number of civilian casualties in Gaza is that Hamas deliberately put them in harm’s way by using them as human shields for its armed forces, weapons, tunnels, rockets, and command and control centers.
WHAT IS THE INTERNATIONAL COURT OF JUSTICE?
The International Court of Justice was established by the U.N. immediately after World War II as a means to settle disputes between member nations and violations of their U.N. treaty obligations. In 1948, the Genocide Convention, which was inspired by the Nazi “Final Solution” which led to the murder of six million Jews, defined genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The convention, to which Israel is a signatory, made genocide a crime under international law and empowered the ICJ to determine whether states have committed it.
Initially, the 17-judge ICJ panel will only analyze South Africa’s request that it impose a temporary cease-fire, an order calling for Israel to halt its military operations in Gaza, while the court considers the merits of the genocide accusation. The ICJ panel has not yet set a date for issuing that preliminary ruling, but it could come within weeks. After the two days of hearings ended on January 12, ICJ President Joan E. Donoghue said the court would rule on the urgent request for a cease-fire in Gaza “as soon as possible.”
The ICJ has granted similar requests to intervene in conflicts in the past. In January 2020, the ICJ granted Gambia’s request for a provisional cease-fire to protect the Rohingya people remaining in Myanmar from genocide. It also ruled in 2007 that the former Yugoslavian province of Serbia had “violated the obligation to prevent genocide” because it permitted the July 1995 massacre by Bosnian Serb forces of more than 8,000 Muslim men and boys in the Bosnian enclave of Srebrenica.
A COURT WITH NO ENFORCEMENT POWER
The court’s rulings are final and binding, but in practice, the ICJ has no way of enforcing them. A 2022 report by Human Rights Watch found continued abuses against the Rohingya remaining in Myanmar, despite the provisional measures the ICJ granted in 2020. Similarly, Russia has been able to ignore the ICJ’s order, in March 2022, to immediately halt its continuing invasion of Ukraine.
If Israel should refuse to comply with its orders, the ICJ could refer the issue to the U.N. Security Council, which is empowered to impose various kinds of punitive actions, including trade sanctions, or an arms embargo.
However, Hebrew University’s Sabel contends that if the ICJ ultimately rules against Israel, the U.S. would likely use its veto power in the Security Council to block any such sanctions or embargo against Israel, as it has done many times before. Sable based that prediction upon a statement made by U.S. Secretary of State Antony Blinken last week that South Africa’s charge of genocide against Israel is “meritless,” and “particularly galling” because “Hamas, Hezbollah, the Houthis, and their supporter Iran continue to openly call for the annihilation of Israel and the mass murder of Jews.” Therefore, Sabel concludes, the primary impact of any ICJ decision against Israel in this case most likely “would be a stain on our reputation.”
The ICJ hearings attracted worldwide attention. The court building in the Hague, which has been named, “The Palace of Peace,” was packed by journalists, including TV camera crews from across Europe to cover the two days of hearings. While the Israeli delegation consisted solely of lawyers to present Israel’s defense, the South African delegation included several prominent European left-wing politicians, including Britain’s notoriously antisemitic former Labour Party chairman, Jeremy Corbyn, as well as advisors from the Palestinian Authority’s Foreign Ministry.
DUELING DEMONSTRATIONS AT THE HAGUE
Outside the ICJ building, there were two competing demonstrations separated by police.
Pro-Palestinian activists carried dolls wrapped in white cloth stained red as if they were babies who had been injured or killed in Gaza by Israel. Some of those pro-Hamas demonstrators also carried signs showing a picture of Prime Minister Netanyahu next to a picture of Hitler, yimach shemo.
The pro-Israeli demonstrators carried Israeli flags and signs with pictures of the hostages who are still being held in Gaza, as well as the Israeli civilians and soldiers who were killed on October 7, along with a caption reminding the court that “they cannot testify.” As the demonstrators demanding the release of the hostages have done in Israel, they set up a “Shabbos table” outside the court building in the Hague, with an empty seat for each of the hostages still in terrorist custody, and a yellow flower placed on each of the empty plates. At the same time, family members of those hostages called upon the ICJ to halt its hearings on the bogus charge of genocide against Israel, and instead condemn Hamas for the plight of those Israeli civilians whom it has kidnapped and who are still being held against their will.
It also became obvious that South Africa had been deliberately preparing to file charges against Israel at the ICJ ever since the October 7 attack, and that the Israeli cabinet officials who have made unnecessarily provocative remarks against the civilians in Gaza had played into the hands of Israel’s enemies by making it easier for them to accuse Israel of committing genocide.
South Africa’s legal team claimed that its government had submitted numerous requests after October 7 to the Israeli embassy to discuss the war in Gaza, but never received a response. But British attorney Malcolm Shaw, who was the leader of Israel’s six-lawyer team at the ICJ, refuted that claim by submitting several dated Israeli diplomatic notes sent in response to those South African requests. The Israeli notes contained specific proposals to hold meetings between officials of the two countries to discuss the situation in Gaza, but then it was the South Africans who failed to respond to them.
HOW ISRAEL TRIED TO HELP GAZA’S CITIZENS
In her argument before the ICJ, Dr. Galit Raguan, a legal advisor to Israel’s Ministry of Justice, who is also the acting director of the ministry’s International Justice Division, noted that South Africa had deliberately under-reported the many efforts Israel made to protect Gaza’s civilians from harm while waging a war of elimination against Hamas. For example, Israeli officials agreed to increase the number of trucks delivering humanitarian aid, including food, water, and medical supplies, for Gaza’s civilians. Israel provided emergency supplies of fuel to keep Gaza’s hospitals operating during peak periods of fighting, and incubators to keep the premature babies in those hospitals alive.
The Israeli military went so far as to potentially endanger its own troops by giving advance warning to Gaza’s civilians, including placing 70,000 phone calls and air-dropping millions of leaflets with specific instructions, urging them to evacuate specific areas where they would be endangered by Israeli airstrikes and ground assaults. Israel also instituted periodic pauses in the fighting and publicly designated safe passage routes within Gaza to enable the civilians to flee. In addition, there are standing orders for all members of the Israeli military to avoid unnecessary civilian casualties in Gaza.
In her presentation, Dr. Raguan presented pictures of terrorist rockets being fired from inside U.N. schools in Gaza and next to water desalination plants.
HOW HAMAS ABUSED GAZA’S HOSPITALS
“In every single hospital the IDF has searched in Gaza it has found evidence of Hamas using it,” Raguan said.
More specifically, she noted, the IDF found evidence that Hamas had held Israeli hostages in the basement of the Rantissi hospital, fired RPGs (rocket-propelled grenades) at Israeli troops from the steps of the Al Quds hospital, dug an extensive system military tunnel system under Al-Shifa Hospital in Gaza City, and managed its military operations from a hospital in Jabaliya, believing that it would be safe from Israeli attack. Also, in one incident, 80 Hamas terrorists who had been holed up inside the Adwan Hospital surrendered to Israeli forces.
Raguan called these actions by Hamas, “a grave violation of international law which put patients and staff at risk… Yes, damage and harm have occurred, sometimes by IDF fire, sometimes by Hamas fire, but always as a direct result of Hamas’ abhorrent method of warfare.”
She asked the court, that if it were seeking to commit genocide in Gaza, “Would Israel delay its ground operation for weeks, would it invest massive resources to tell civilians where, when and how to go [evacuate], to leave areas of fighting? Would it maintain a dedicated staff of experts whose sole role is [to] deliver aid despite being themselves coming under attack?”
Raguan also denounced South Africa’s “astonishing” claim that Israel’s warnings to civilians to evacuate from their homes was evidence “of Israel’s intent to commit genocide when it in fact proves the exact opposite.”
SOUTH AFRICA ENABLING TERRORISTS TO GET AWAY WITH MURDER
Summing up the Israeli defense, Dr. Gilad Noam, Israel’s Deputy Attorney-General for International Affairs, insisted that because South Africa did not follow the correct diplomatic and bureaucratic procedures in submitting its accusations, the court lacks “prima facie jurisdiction.” He argued that if the ICJ were to accept South Africa’s claims, it “would weaken efforts to punish genocide. Instead of [the court] being an instrument to prevent terrorist horrors [it] would turn it into a weapon in the hands of terrorist groups who have no regard for humanity and the rule of law.” Granting South Africa’s request for a provisional cease-fire order against Israel “would signal to terrorist groups that they can commit war crime and crimes against humanity and then seek the protection of this court,” Noam charged.
Israeli defense lawyer Christopher Staker said that provisional cease-fire orders are only supposed to be a “temporary shield” to preserve human rights, but in the current case in Gaza, such an order would be used as “a sword to give an advantage to one party [Hamas] in a conflict over another [Israel].”
“What would have happened,” Christopher Staker asked rhetorically if such a case [for a cease-fire] would have been made against the allies [when they were on the verge of winning] in World War II?”
SOUTH AFRICA IS ACTING AS HAMAS’ LEGAL ARM
Immediately following South Africa’s presentation, Israel’s Foreign Ministry issued a press release accusing South Africa of acting as the “legal arm of the Hamas terrorist organization.” It also called the ICJ proceedings accusing Israel of genocide “the greatest show of hypocrisy in history.”
Prime Minister Netanyahu issued a statement declaring that, “the hypocrisy of South Africa screams to high heaven. . . Where was South Africa when millions of people were murdered and displaced from their homes in Syria and Yemen, and by whom? By the partners of Hamas.”
On the other hand, South Africa’s president, Cyril Ramaphosa, declared, “I have never felt as proud as I felt today when our legal team was arguing our case [against Israel] in The Hague.”
On the first day of the ICJ hearing, Palestinians in the West Bank city of Ramallah celebrated the South African presentation by waving Palestinian and South African flags in Nelson Mandela Square, which was named after South Africa’s first post-apartheid-era black president. Mandela had been an outspoken advocate for the Palestinian cause. The relationship was forged during the years before 1994 when South Africa’s apartheid era ended. During that period, Yasser Arafat’s Palestine Liberation Organization had cheered on the anti-apartheid struggle of the Mandela-led African National Congress (A.N.C.) against South Africa’s white-minority regime, which had been an ally of Israel at the time.
SOUTH AFRICA’S JEWS FEEL BETRAYED
According to a New York Times report, many South Africans applauded their previously unpopular leaders for taking a stand by staging gatherings in the streets to wave Palestinian flags in the streets, but they did not include South Africa’s small but influential Jewish community, which has harshly criticized their government for accusing Israel of genocide.
Zev Krengel, the president of the South Africa Jewish Board of Deputies, called the accusation “a massive betrayal,” in part because South Africa’s Jews played a crucial role in the long struggle against apartheid led by Mandela and his political party, the A.N.C., which still controls the South African government.
Krengel also said that the South African government was guilty of hypocrisy because, in 2015, when Sudan’s former president, Omar Hassan al-Bashir, came to South Africa to attend a summit meeting, saying that it hadn’t pursued cases against other countries that had committed atrocities, South African government authorities refused to arrest him, even though he was wanted by the International Criminal Court on charges of committing genocide and other war crimes.
After the Israeli defense team presented its case at the ICJ, Israeli Foreign Minister Israel Katz offered high praise for their efforts. “The Israeli delegation revealed the true face of South Africa as the loyal representative of a terrorist organization that inhumanely slaughtered babies, children, women, and the elderly,” Katz said, and then added, “When it comes to Israel, it seems that the double standards of some of the world’s countries are shockingly blatant. South Africa’s claims against Israel are baseless. On the contrary, no evidence was presented, except that of an unparalleled defensive and moral war.”
While the South African legal team argued that there is an urgent need for the court to order an immediate halt to the fighting because of the risk of “irreparable” harm to Palestinian women and children in Gaza, one of the lawyers on the Israeli defense team responded by noting that the danger to those civilians is already being reduced because, in recent weeks, “the scope and intensity of the [Israeli] hostilities has been decreasing.” Israel’s lawyers also argued that, because there is no evidence that genocide has been committed in Gaza, the ICJ lacks the necessary jurisdiction to try the case.
TEMPORARY CEASE-FIRE ORDER REQUIRES A LOW LEVEL OF PROOF
However, unfortunately for Israel, “At this stage, South Africa does not need to prove that Israel is committing genocide,” to justify an interim order by the ICJ to end the fighting in Gaza, according to Juliette McIntyre, a lecturer in law at the University of South Australia who specializes in international courts and tribunals. “They simply need to establish that there is a plausible risk of genocide occurring.”
Law professor Eliav Lieblich at Tel Aviv University agrees that to win such a temporary order from the ICJ, South Africa faces, “a low evidentiary threshold. You just have to show prima facie that what you’re saying [that Israel is committing genocide in Gaza] is plausible.” Lieblich also notes that much of South Africa’s accusation of genocide is based upon derogatory public comments made by some Israeli officials, including Defense Minister Yoav Gallant, Finance Minister Bezalel Smotrich, and National Security Minister Itamar Ben-Gvir about the Palestinians in Gaza.
For example, Ben-Gvir once said, “When we say that Hamas should be destroyed, it also means those [civilians] who celebrate, those who support [Hamas], and those who hand out candy — they’re all terrorists, and they should also be destroyed.”
Defense Minister Gallant also said that Israel is “fighting human animals” in Gaza and must “act accordingly.”
There was also the outrageous suggestion by Heritage Minister Amichai Eliyahu that Israel might use nuclear weapons in Gaza, as well as his comment that “there is no such thing as uninvolved civilians in Gaza.”
RECKLESS COMMENTS BY CABINET MINISTERS HURTING ISRAEL
“This is a big story,” said Lieblich. “People should have to answer why no one anticipated this [case against Israel at the ICJ], and how come [some] government [ministers] acted in such an irresponsible and reckless way.”
He noted that “If these comments had never been said, then there would have been no basis for the case.” But now, Liebich said, Israel’s legal defense team at the ICJ must engage in “an uphill struggle” in trying to convince the court that these cabinet ministers did not mean what they said and that their words do not reflect how the IDF has actually carried out the war on the ground against Hamas in Gaza.
The South African lawyers also cited a comment by Prime Minister Netanyahu on October 28, in which he compared the October 7 Hamas attack on Israel to the attack by Amalek on Am Yisroel in the Chumash, and cited the subsequent mitzvah to destroy Amalek.
However, Israel’s legal team argued that the South Africans had deliberately taken some of the most damaging quotes by Israeli officials out of context. For example, in the same October 28 speech, Netanyahu insisted that “the IDF does everything to avoid harming noncombatants” and that he was “calling on the civilian population to evacuate” to safer areas in Gaza, which refuted South Africa’s claim that Israel’s war in Gaza has genocidal intent.
Lieblich also warned that a ruling by the ICJ that Israel was “plausibly” committing genocide in Gaza would be “a very grave result,” with potentially serious political and strategic implications. For one thing, it would put President Joe Biden in a difficult spot with the progressive wing of his Democrat party which has already called for a halt to ongoing U.S. arms sales to Israel. Biden and his administration have also given Israel crucial political cover and diplomatic support by vetoing or watering down anti-Israel resolutions proposed by Israel’s enemies in the U.N. Security Council.
ISRAELI LEGAL COMMENTATORS OPTIMISTIC
Most Israeli legal commentators said that the court should dismiss the South African request that the ICJ order the war to be stopped because Israel clearly was attacked first, so it is fighting in self-defense, and because Hamas is still holding civilian hostages in violation of international law.
According to Amichai Cohen, a law professor at Israel’s Ono Academic College, many Israelis were in “disbelief” over South Africa’s portrayal of Israel as the aggressor in what Israelis clearly see as an existential war of self-defense in Gaza. “The reality that South Africa described was completely different than the reality that Israelis are living every day,” said Cohen.
He also credited Israel’s legal team with making strong counterarguments, which, Cohen believes, will probably make it less likely the court would order an immediate cease-fire.
“[South Africa] presented a case without [mentioning] Hamas,” Cohen said. “I think Israel was effective in showing how Hamas has responsibility, [and] examples of Hamas fighting from within the civilian population and shooting from U.N. schools.”
CAN ISRAEL GET A FAIR TRIAL?
One of the major concerns as the case goes forward is whether Israel can receive a fair trial at the ICJ.
The 15 permanent judges who serve on the court are appointed by the U.N. General Assembly, and some of them come from authoritarian countries that do not respect the principle of judicial independence from political control.
The president of the court is Judge Joan Donoghue, who comes from the United States. Other ICJ judges also come from democratic countries such as France, Germany, Australia, India, Slovakia, Jamaica, Japan, and Brazil.
South Africa and Israel each sent one of their own judges to serve as ad hoc members of the ICJ panel hearing the case against Israel. Israel sent Aharon Barak, who served as the president of Israel’s Supreme Court president from 1995 to 2006.
However, other ICJ judges come from Russia, China, Morocco, Somalia, Lebanon, and Uganda, where judicial decisions are often known to be subject to undue influence from their country’s political leadership.
As a result, Hebrew University law professor Robbie Sabel told the Times of Israel that, “If it [the ICJ proceedings] was strictly legal, then it wouldn’t be possible to say this is genocide. But since there is a bloc of judges [from anti-Israel countries on the ICJ], we should be worried.”
WHY THE GENOCIDE ARGUMENT IS NOT PLAUSIBLE
Sabel observed that if Israel had wanted to commit genocide against the civilians in Gaza it could have caused far greater civilian casualties given the great destructive power of its military. In addition, Sabel suggests that the IDF’s efforts to avoid civilian casualties in Gaza and the humanitarian aid Israel has allowed to enter Gaza would ordinarily be sufficient to convince any “impartial court” that it was not plausible to conclude that Israel was committing genocide, but that is not necessarily true at the ICJ.
However, Amichai Cohen, an expert in the international law of armed conflict at the Israel Democracy Institute, told the Times of Israel that even though China and Russia are currently not well disposed towards Israel diplomatically, they are still likely to be cautious about any genocide proceedings at the ICJ given that they also have been accused of genocidal acts in recent years. Russia is currently facing genocide charges in the ICJ for its actions during its invasion and occupation of Ukraine, while China may also have to face charges in the ICJ of committing acts of genocide against its long-oppressed Uighur Muslim minority.
Cohen also observed that “The majority of [ICJ] justices do not necessarily represent the interests of their states, but rather international law… and this is why Israel is cooperating with the court.”
Cohen also believes that because Israel’s actions in Gaza can best be explained as an attempt to neutralize Hamas’ military threat, rather than as a deliberate attempt to commit genocide, it may be possible to convince the court that South Africa’s allegations are wrong. “The claim does not have a lot of substance; Israel is not anywhere near committing genocide,” Cohen said.
But Cohen concurred with Lieblich, that the “completely irresponsible” comments by senior Israeli cabinet ministers had made it much easier for South Africa to bring its case to the ICJ, and that they had needlessly caused Israel significant potential harm.
Cohen also agreed with Lieblich’s opinion that it is “improbable” that the ICJ would order Israel to halt its combat operations in Gaza, but it could order Israel to take other measures, such as increasing the flow of humanitarian aid and fuel into Gaza and punishing those Israeli officials who have been deemed to be inciting genocide in Gaza.
But as Jews around the world have been reminded by the explosion in previously hidden antisemitic sentiments in this country and around the world, which was triggered by Hamas’ October 7 attack, we can only look to Hashem as the true shomer Yisroel to save us from our enemies.
