Day one of the ICJ genocide hearing against Israel: Key takeaways

South Africa laid out a list of alleged genocidal acts by Israel while seeking an injunction against the war.

Joan Donoghue (2-R), President of the International Court of Justice and other judges at the International Court of Justice
Judges at the International Court of Justice attend a hearing of the genocide case against Israel brought by South Africa in The Hague [Remko De Waalepa/EFE/EPA]

The International Court of Justice (ICJ) in The Hague has held the first of a two-day hearing in South Africa’s genocide case against Israel over the war in Gaza.

Even as the hearing, which will span Thursday and Friday, was being conducted, the ongoing bombardment of the Gaza Strip by Israeli forces killed more than 100 Palestinians and injured nearly 200 over the latest 24-hour reporting period, the Gaza Ministry of Health said on Thursday.

Outside the court, pro-Palestinian demonstrators called for an end to Israel’s military operations.

Here are the key takeaways from the first day of the hearing at the ICJ — and what Friday might hold.

South Africa seeks injunction against Israel to stop the war

The hearing began with a reading of South Africa’s case against Israel and the demand that Israel should immediately suspend its military operations in Gaza as South Africa reminded the court that more than 23,000 Palestinians have been killed by Israeli attacks in the Gaza Strip since October 7.

Pretoria’s ambassador to the Netherlands, Vusimuzi Madonsela, said: “South Africa acknowledges that the genocidal acts and permissions by the state of Israel inevitably form part of a continuum of illegal acts perpetrated against the people, Palestinian people since 1948.”

Ronald Lamola, South Africa’s justice minister, said Israel’s response to the attacks by Hamas on October 7 in southern Israel “crossed a line”.

“No armed attack on a state territory, no matter how serious, even an attack involving atrocity crimes, can provide justification for or defence to breaches to the [1948 Genocide] Convention whether it’s a matter of law or morality,” he said.

Lamola added that the case presented the court with an opportunity to act in real time to prevent genocide from continuing in Gaza by issuing an injunction.

List of ‘genocidal acts’

Adila Hassim, an advocate representing South Africa’s case, laid out what she argued were a series of violations of the Genocide Convention, which Israel is a party to.

“South Africa contends that Israel has transgressed Article 2 of the convention by committing actions that fall within the definition of genocide. The actions show systematic patterns of conduct from which genocide can be inferred,” she said.

Hassim then listed a number of “genocidal acts” committed by Israel.

The “first genocidal act is mass killing of Palestinians in Gaza”, she said while showing photos of mass graves where bodies were buried “often unidentified”. No one – including newborns – was spared, she added.

The second genocidal act was serious bodily or mental harm inflicted on Palestinians in Gaza in violation of Article 2B of the Genocide Convention, Hassim argued. Israel’s attacks have left close to 60,000 Palestinians wounded and maimed, the majority of them women and children. Hassim argued that large numbers of Palestinian civilians, including children, have been arrested, blindfolded, forced to undress, loaded onto trucks and taken to unknown locations.

Tembeka Ngcukaitobi, a second lawyer representing South Africa, argued that “Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent.”

Ngcukaitobi recalled Israeli Prime Minister Benjamin Netanyahu’s comments on October 28, urging ground troops preparing to enter Gaza to “remember what Amalek has done to you.” “This refers to the biblical command by God to Saul for the retaliatory destruction of an entire group of people,” the lawyer said.

Other Knesset members repeatedly called for Gaza to be wiped out, flattened, erased and crushed, the lawyer argued. “Soldiers believe that this language and their actions are acceptable because the destruction of Palestinian life in Gaza is articulated state policy,” Ngcukaitobi said.

Are Israel’s actions in breach of the Genocide Convention?

The hearing then moved on to addressing the question of jurisdiction. John Dugard, a South African international law professor, pointed out that the obligations under the Genocide Convention are “erga omnes, obligations owed to the international community as a whole”.

“State parties to this convention are obliged not only to desist from genocidal acts but also to prevent them,” Dugard said. He added that South Africa tried to reach the Israeli government via the embassy before filing the case.

Max du Plessis, another lawyer representing South Africa, said UN bodies and experts as well as human rights organisations, institutions and states “have collectively considered the acts committed by Israel to be genocidal or at the very least warned that the Palestinian people [are] at risk of genocide”.

South Africa’s legal representatives reminded the court that at this stage, it does not “have to determine whether or not Israel has or has not acted contrary to its obligations under the Genocide Convention” because this can be done only “at the merits stage”.

Israel has repeatedly argued that it is acting in self-defence after Hamas fighters entered its territory on October 7, killed 1,139 people and took more than 200 people captive.

In what appeared to be a preemptive argument aimed at blunting Israel’s calls for Hamas to be tried under international law, South Africa’s delegation noted that Hamas is not a state and cannot be a party to the Genocide Convention or to the proceedings at The Hague.

When will Israel present its arguments?

After three hours of detailed descriptions of what South Africa said is a compelling case of genocide, the court was adjourned.

The hearing will resume on Friday to hear Israel’s oral arguments.

Thomas MacManus, senior lecturer in state crime at the School of Law, Queen Mary University of London, told Al Jazeera that South Africa’s case was “very impressive”. “They set out in a very concise way some devastating accusations strung together in such a legally sound way,” MacManus said.

Israeli Prime Minister Benjamin Netanyahu said that hypocrisy and lies had been presented to the UN’s top court, adding that South Africa’s accusation against Israel of genocide in Gaza could only happen in a world turned upside-down.

“We are fighting terrorists, we are fighting lies,” Netanyahu said. “Today we saw an upside-down world. Israel is accused of genocide while it is fighting against genocide.”

“Israel is fighting murderous terrorists who carried out crimes against humanity: They slaughtered, they raped, they burned, they dismembered, they beheaded – children, women, elderly, young men and women,” he said.

“The hypocrisy of South Africa screams to the heavens,” Netanyahu added. “Where was South Africa when millions of people were killed or torn from their homes in Syria and Yemen, by whom? By partners of Hamas.”

Netanyahu said Israel would maintain the right to defend itself until it had achieved “total victory.”

Lior Haiat, spokesperson for the Israeli Ministry of Foreign Affairs, labelled Thursday’s hearing as one of the “greatest shows of hypocrisy in history, compounded by a series of false and baseless claims”.

He then accused South Africa of seeking to allow Hamas to return to Israel to “commit war crimes”.

While any rulings by the ICJ may have little bearing on the war itself, one in favour of South Africa and the Palestinians would pile significant pressure on Israel’s number one backer: the United States.

White House national security spokesperson John Kirby told reporters on Thursday that the United States sees no basis for South Africa’s allegation of genocide against Israel over civilian deaths in Gaza.

Source: Al Jazeera