ICJ genocide case: What are Israel’s arguments and do they hold up?

Israel defended itself from South Africa’s accusations of genocide in a three-hour long session on Friday.

Pro-Palestinian demonstrators hold Palestinian flags as they protest near the International Court of Justice (ICJ
A pro-Palestinian demonstrator holds a placard during a protest near the International Court of Justice in The Hague on January 11, 2024 [Thilo Schmuelgen/Reuters]

The International Court of Justice on Friday heard Israel’s defence against allegations by South Africa that it had carried out acts of genocide in Gaza, on the second day of hearings that were live-streamed for the world to watch.

Nearly 24,000 people have been killed in the enclave since October 7, almost 10,000 of them children. Thousands more are lost under rubble and presumed dead.

South Africa claims Israel has breached the 1948 Genocide Convention in its war on Gaza. On Thursday, the legal team acting for South Africa requested that the court issue emergency measures to stop the continuing aerial bombardment and ground invasion of the strip.

That request for provisional measures was the crux of this week’s proceedings.

In its Friday counter-submission, Israel’s representatives, led by British lawyer and academic Malcolm Shaw KC, argued that South Africa’s application “distorted” and “de-contextualised” Tel Aviv’s military actions in Gaza, and that in accusing Israel of genocide, Pretoria was “diluting” the meaning of the crime.

Here are Israel’s main counterarguments and a look at whether they stand up:

Right to self-defence

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 a right to defend itself under international law.

Tal Becker, an advocate for the Israeli team, told the court that the Genocide Convention was drawn up in the aftermath of the mass killing of Jews in the Holocaust and that the phrase “never again” is one of “the highest moral obligations” for Israel.

By requesting an interim order against Israel’s invasion, Becker said, South Africa is trying to deny Israel the opportunity to meet its obligations to the captives taken and to the Israelis displaced after the October 7 attacks from communities near the border with Gaza.

But Neil Sammonds, senior campaigner on Palestine at human rights organisation War on Want, told Al Jazeera that Israel’s arguments are “weak”.

“Of course, both South Africa and human rights organisations like us condemn the killing of civilians and taking of hostages [by Hamas],” Sammonds said. “But this in no way justifies the response from Israel. As an occupying force, Israel does not have the right to self-defence – this argument does not hold water.”

The ICJ had, in 2003, ruled that an occupying power cannot claim the right to self-defence, in a case involving Israel’s construction of a separation wall in the occupied West Bank. Israel does not consider itself to be an occupying power since its disengagement from Gaza in 2006. The UN and a variety of human rights organisations have rejected this claim, however, while international legal scholars have been divided about whether Gaza was “occupied” according to international law.

Genocidal intent

The Israeli legal team said South Africa’s accusations that Tel Aviv has an inherent intent 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 not plausible to pass off comments by high ranking officials as “random assertions”.

“Some of the most revealing statements were made by the president, prime minister, and defense minister and other key decision makers,” Kumar said.

In his presentation, Shaw said that the statements made by Prime Minister Benjamin Netanyahu and alluding to “Amalek” – which was cited specifically by the South African team on Thursday – had been taken out of context.

In the statement cited, 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 obliterate a distinct group of people.

Shaw, however, said that Netanyahu had gone on to complete the statement by saying “the [Israeli military] is the most moral army … and does everything to avoid” the killing of innocents.

In available clips of the recording, Netanyahu does not say those words after referring to the Bible story, however. He said, “Our brave troops and combatants who are now in Gaza … and other regions of Israel are joining this chain of Jewish heroes, a chain that has started 3,000 years ago from Joshua ben Nun until the heroes of 1948 … They have one supreme goal, to completely defeat the murderous enemy and to guarantee our existence in this country.”

Genocidal actions

In response to allegations of actual genocidal actions, including mass and indiscriminate killings of civilians, Israel’s lawyers claimed that Hamas was using civilians as human shields and that Israeli troops were trying to “minimise” civilian harm.

However, there have been cases of civilians being shot and killed while clearly unarmed and trying to evacuate. In a recent, verified video which was shared widely on social media, a Palestinian grandmother was seen attempting to pass along a route out of northern Gaza, declared safe by Israeli forces, while holding hands with her five-year-old grandson, who was waving a white flag. She was shot dead by a sniper.

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 saying its soldiers were acting under huge pressure and had made mistakes.

Israel’s lawyers also said on Friday that any concerns their troops had “transgressed” the rules of war would be “addressed by Israel’s robust legal system”. But Kumar said HRW has previously uncovered evidence that Israel operates a “deeply flawed and unequal justice system”.

“The authorities have routinely failed to hold their forces accountable when security forces kill Palestinians, including children, in circumstances in which the use of lethal force was not justified under international norms,” Kumar said.


Lack of jurisdiction

Shaw said Pretoria had failed to communicate with Tel Aviv about the case before filing the application to the court, as is required by the court’s own rules.

The Israeli representative claimed South Africa had given it only a few days to respond to a notification that it was committing genocide. He said that Tel Aviv had been willing to “dialogue” but the South African representatives had first rejected a written missive due to a holiday, and then had later on replied 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 at all, meaning the court might lack the power to adjudicate.

To bring a case before the ICJ, it is necessary to show that there has been a prior “dispute” between the two parties, and that both need the ICJ to step in to properly interpret the Genocide Convention. South Africa may have to prove that it gave Israel prior notice that it believed Tel Aviv was committing genocide in Gaza, and that there was a “dispute” or disagreement between the two sides on the topic, to justify taking this case to the court at all.

South Africa has not responded to the claims that it rejected such a dialogue.

Humanitarian aid

Israel’s representative said the allegations that it is blockading 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 gone up to “106 trucks in the past two weeks”.

According to the UN, 500 aid trucks were entering Gaza daily before the war, after which Israel banned all aid from entry. Some 200 trucks daily were allowed in during a brief pause in fighting agreed between Israel and Hamas, but outside the truce period, fewer than 100 trucks were going in.

Galit Raguan, acting director of the international justice division at Israel’s Ministry of Justice, said in her presentation that Hamas seizes aid supplies for its fighters. Israel, Galit said, had not targeted hospitals, and has helped evacuate patients. She said schools, UN warehouses, and hospitals had been searched by Israeli forces because Hamas fighters were in those locations, adding that Israel warns the population of an incoming bombardment through phone calls and by dropping leaflets.

However, Palestinian journalists have repeatedly reported that the incessant bombing of the strip often comes with no warnings, with journalists themselves being heavily attacked. Several hospitals have been bombarded and left dysfunctional.

Sammonds from War on Want pointed out that Israel did not begin its blockade on the strip on October 7. “There has been an unlawful blockade on Gaza for 16 years and it was already seen as a collective punishment [before the war started]. The aid that has come in [since the war started] is just a tiny trickle compared to what is needed,” he said.

Kumar, at HRW, added: “In practice, Israeli forces are deliberately blocking the delivery of water, food and fuel, while wilfully impeding humanitarian assistance, apparently razing agricultural areas, and depriving the civilian population of objects indispensable to their survival. Human Rights Watch have found that Israel is using starvation as a weapon of war.”

What next?

Wrapping up Israel’s arguments on Friday, Gilad Noam, Israel’s deputy attorney general for international affairs, said the court should not order provisional measures (to halt the assault on Gaza) because Hamas is considered a terrorist organisation by Israel and because any such measures would cause harm to Israelis.

The ICJ said it would announce its decision soon, but did not give specific dates. It is likely the court will make a statement in the coming weeks, experts said.

It’s hard to predict which way the court will swing. Al Jazeera’s senior political analyst, Marwan Bishara, said that Israel made strong “jurisdictional and procedural arguments”, referring to those allegations from Israel that South Africa did not give it enough time to respond before filing at the Hague Court. He described this part of its argument as the one which “may have made a dent” in South Africa’s case.

But “Israel lost the moral, factual, historical and humanitarian argument because of the way the situation has unravelled in Gaza – with the sheer death and industrial killing there,” Bishara said, adding that Israel’s attempts to convince the court of its handling of the humanitarian situation there were unconvincing.

Mike Becker, a professor of international law at Trinity College, Dublin, said the court would be in a tricky position: It might not want to order Israeli troops out of Gaza when it cannot give a similar cease-and-desist order to Hamas, which is not party to the Genocide convention.

“South Africa has done enough to satisfy the requirements,” Becker said, alluding to Pretoria’s case for an emergency halt order. “But the provisional measures [the court will give] may largely seek to hold Israel to the undertakings that it has made today in relation to humanitarian aid,” he said.

Source: Al Jazeera