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LAST UPDATE | 12 Jan 2024
ISRAEL HAS TODAY hit back at what it describes as “atrocious” allegations it is committing “genocide” in Gaza, in a closely watched landmark case before the UN’s top court.
South Africa has launched the emergency case at the International Court of Justice arguing that Israel stands in breach of the UN Genocide Convention, signed in 1948 in the wake of the Holocaust.
Pretoria wants judges to force Israel to “immediately” stop the Gaza campaign launched after the devastating 7 October Hamas attacks.
Opening the case yesterday, South African Justice Minister Ronald Lamola told the court that Israel had “crossed the line” and was in breach of the Convention.
He said that even the brutality of the Hamas attack could not justify this.
Legal advisor for Israel Dr Tal Becker told the court today that ”what Israel seeks by operating in Gaza is not to destroy a people but to protect the people, its people who are under attack on multiple fronts and to do so in accordance with the law, even when it faces a heartless enemy determined to use that very commitment against it”.
Here is how Israel’s submission played out today.
Updates from Hayley Halpin and Lauren Boland.
The ICJ will likely rule within a matter of weeks on South Africa’s request. Its rulings are final and legally binding but it has little power to enforce them.
A month after Russia’s invasion of Ukraine, the ICJ ordered a halt to the military operation – to no avail.
For this emergency proceeding, the court will not rule on the fundamentals of the case — whether Israel is actually committing genocide – but on whether the rights of Gazans to exist are at risk.
South Africa can bring an ICJ case against Israel as both countries have signed the Genocide Convention.
Addressing the court yesterday as the hearings began, South African Justice Minister Ronald Lamola said Israel had “crossed the line” and was in breach of the Convention.
He said that even the brutality of the Hamas attack could not justify this.
“Genocides are never declared in advance,” said Adila Hassim, a top lawyer for South Africa.
“But this court has the benefit of the past 13 weeks of evidence that shows incontrovertibly a pattern of conduct and related intention that justifies a plausible claim of genocidal acts.”
South Africa’s justice minister Ronald Lamola outlined the country’s genocide case against Israel, as a landmark hearing opened at the International Court of Justice ⤵️ pic.twitter.com/AvlM8BwhQI
— Al Jazeera English (@AJEnglish) January 11, 2024
The ruling African National Congress (ANC) has long been a firm supporter of the Palestinian cause, often linking it to its own struggle against the white-minority government, which had cooperative relations with Israel.
Anti-apartheid icon Nelson Mandela famously said South Africa’s freedom would be “incomplete without the freedom of the Palestinians”.
Among those working on the team advising South Africa in the case is Irish lawyer Blinne Ní Ghrálaigh.
She told the ICJ yesterday that the conflict in Gaza is the “first genocide in history” being broadcast in “real-time”.
Speaking at the case yesterday, Ní Ghrálaigh said: “The international community continues to fail the Palestinian people, despite the overt dehumanising genocidal rhetoric by Israeli governmental and military officials matched by the Israeli army’s actions on the ground, despite the horror of the genocide against the Palestinian people being livestreamed from Gaza to our mobile phones, computers and television screens.”
She said this is the “first genocide in history where its victims are broadcasting their own destruction in real-time in the desperate and so far vain hope that the world might do something”.
“The world should be absolutely horrified. The world should be absolutely outraged. There is no safe space in Gaza and the world should be ashamed,” Ní Ghrálaigh told the court.
Irish lawyer Blinne Ni Ghralaigh who is supporting South Africa's legal team at the ICJ, says the number of orphans caused by ‘Israel’s genocidal assault on the Palestinian population in Gaza’ has led to the need for a new acronym: WCNSF - wounded child, no surviving family. pic.twitter.com/i63iXKMaIN
— Al Jazeera English (@AJEnglish) January 11, 2024
How has Israel responded to the case being taken before the ICJ?
Israel and its ally the United States have dismissed the case as groundless and vowed a robust defence at the Peace Palace in The Hague.
“No, South Africa, it is not we who have come to perpetrate genocide, it is Hamas,” said Prime Minister Benjamin Netanyahu in the run-up to the hearings.
“We will continue our defensive war, the justice and morality of which is without peer,” he added.
In Washington, State Department spokesman Matthew Miller said the South African case was “unfounded”.
“In fact, it is those who are violently attacking Israel who continue to openly call for the annihilation of Israel and the mass murder of Jews,” said Miller.
The proceedings have begun. You can watch live here:
Legal advisor for Israel Dr Tal Becker has told the court that given we live in “a time where words are cheap, in an age of social media and identity politics, the temptation to reach for the most outrageous term to vilify and demonise has become for many irresistible”.
“If there is a place where words should still matter, where truth should still matter, it is surely a court of law,” he said.
Dr Becker has outlined examples of the events carried out by Hamas militants during the 7 October attacks.
Dr Becker told the court that the prosecution has put before the court a “profoundly distorted” legal picture.
“Astonishingly, the court has been requested to indicate a provisional measure, calling on Israel to suspend its military operations,” Dr Becker tells the court.
“This amounts to an attempt to deny Israel its ability to meet its obligations to the defence of citizens, to the hostages, and to over 110,000 internally displaced Israelis unable to safely return to their home,” he says.
“The applicant in its submissions to the court makes almost no mention of the ongoing humanitarian suffering of Israel’s citizens and treats the hostages still held in captivity as barely an afterthought.”
Dr Becker has told the court that the events of 7 October have been “ignored” in South Africa’s submission to the court.
He told the court that Hamas carried out “wholesale massacre, mutilation, rape and abduction” of Israeli citizens on 7 October.
“Hamas has systematically and unlawfully embedded its military operations. militants and assets throughout Gaza, within and beneath densely populated civilian areas,” Dr Becker has told the court.
He said Hamas has built an “extensive” system of “underground tunnels for its leaders of fighters”, with terrorist hubs “located in homes, mosques, UN facilities, schools and perhaps most shockingly, hospitals”.
“This is not an occassional tactic. It is an integrated, pre-planned, extensive and abhorrent method of warfare,” he said.
“The applicant is essentially asking the court to substitute the lens of armed conflict between a state and a lawless terrorist organisation through the lens of a so called genocide of a state against a civilian population,” Dr Becker has said.
“It is not offering the court a lens. It is offering a blindfold.”
Dr Becker has told the court: “What Israel seeks by operating in Gaza is not to destroy a people but to protect the people, its people who are under attack on multiple fronts and to do so in accordance with the law, even when it faces a heartless enemy determined to use that very commitment against it.”
British lawyer Professor Malcolm Shaw is now addressing the court on behalf of Israel.
Professor Shaw has told the court that South Africa “seems to believe that it does not take two to tango” and that it is “sufficient if one state determines there is a dispute, leaving the other party flummoxed”.
Professsor Shaw has put the argument forward that Israel “has the right to defend itself in line with humanitarian law”.
“Were it the case, which we deny, that Israeli forces have transgressed some of the rules of conflict, then the matter will be tackled at the appropriate time by Israel’s robust and independent legal system,” Professor Shaw has told the court.
“But that is not the intent to destroy all or parts of a people as such,” he said.
“Israel’s actions, in restricting its targetting practices to attack military personnel or objectives in accordance with international humanitarian law in a proportionate manner in each case, as well as its practice of mitigating civilian harm, such as by forewarning civilians of impending action, by the unprecedented and extensive use of telephone calls, leafleting and so forth, coupled with the facilitation of humanitarian assistance, all demonstrate the precise opposite of any possible genocidal intent.”
Here’s a clip of Dr Tal Becker addressing the court:
Israel has begun presenting its case at the ICJ, where it stands accused by South Africa of committing genocide in Gaza.
— Al Jazeera English (@AJEnglish) January 12, 2024
A lawyer for Israel, Tal Becker, said the term genocide was being weaponised. pic.twitter.com/pxNXoUc9nR
Professor Shaw has said Israel’s “activities” in the area of facilitating humanitarian assistance “need to be addressed and not swept aside as South Africa seeks to do”.
Professor Shaw has told the court that Hamas’s 7 October attacks on Israel fall “within the statutory definition of genocide”.
“This is an important case. Allegations have been made which verge on the outrageous. The attack by Hamas on 7 October with its deliberate commission of atrocities clearly falls within the statutory definition of genocide,” he said.
“Israel’s response was and remains legitimate and necessary. It acted and continues to act in a manner consistent with international law,” Professor Shaw said.
“It does so, not in an unrestrained manner but in investing unprecedented efforts in mitigating civilian harm at a cost to its operations, as well as alleviating hardship and suffering with investment of resources and efforts,” he said.
“There is no genocidal intent here, this is no genocide. South Africa tells us only half the story.”
The hearing has now resumed.
Israel’s next representative is Dr Galit Raguan, the Acting Director of the International Justice Division of Israel’s Office of the Deputy Attorney General.
Dr Raguan argues that “in urban warfare, civilian casualties may be the unintended but lawful result of attacks on lawfully, military objectives”.
Dr Raguan accuses Hamas of “misuse of medical facilities” and says South Africa “neglected to inform the court” that Hamas has “regularly and deliberately fired” from humanitarian zones.
Dr Raguan put forward Israel’s position that “despite Israel’s efforts to mitigate harm, there is no question that many civilians in Gaza are suffering as a result of the war that Hamas began, while Israel is seeking seeking to minimise civilian harm”.
“Hamas is doing everything in its power to use the civilian population and civilian infrastructure for its own protection,” she said.
Dr Raguan has concluded her statement.
Refuting the allegation of genocide, she said: “Would Israel work continuously with international organisations and states, even reaching out to them on its own initiative to find solutions to these challenges, if it were seeking to destroy the population?”
“Israel’s efforts to mitigate the ravages of this war on civilians are the very opposite of intent to destroy them,” she said.
The court in The Hague is now hearing from Dr Omri Sender, a lawyer at a large law firm in Tel Aviv called S. Horowitz & Co.
Dr Sender called South Africa’s account “entirely one-sided” and said its application to the court does not reflect Israel’s effort to “improve the situation” in Gaza.
Dr Sender went on to present the argument that Israel is “recognising and ensuring the rights of Palestinian civilians in Gaza”, denying that Israel has gotten in the way of humanitarian aid or water entering Gaza.
The next member of Israel’s legal team is Christopher Staker. He was Senior Appeals Counsel at the International Criminal Tribunal for the Former Yugoslavia in The Hague and has been called to the bar in Ireland and admitted to practice law in Germany.
He is taking aim at South Africa’s call for the court to order a ceasefire in Israel, calling it “astonishing”.
Staker addressed the provisional measures that South Africa is seeking, arguing they would reduce Israel’s capacity to deal with security threats and return hostages being held in Gaza.
He was followed by Gilad Noam, Israel’s Deputy Attorney General. Noam built on Staker’s argument against the provisional measures, saying South Africa failed to adequately make the case for them.
Noam argued that the bar of “irreparable harm and urgency” needed to implement the provisional measures is not being met in Gaza and that Israel is “committed to abiding by international law”.
In a statement posted on social media this afternoon, Israel’s Foreign Minister suggested there is “no basis for South Africa’s claims against Israel”.
הודעת שר החוץ ישראל כ”ץ @Israel_katz בתום הדיון בבית הדין הבינלאומי בהאג:
“כשזה נוגע לישראל נראה כי המוסר הכפול של חלק ממדינות העולם זועק לשמיים.
אין כל בסיס לטענות דרום אפריקה כנגד ישראל. להיפך. לא הוצגה כל ראיה לכך אלא רק ראיות למלחמת מגן מוסרית מאין כמוה.
דרום אפריקה עצמה… pic.twitter.com/0sUYIw2szk
— Lior Haiat
The hearing in the International Court of Justice has now ended after South Africa and Israel presented their arguments over the last two days.
ICJ President Joan Donoghue brought the day’s proceedings to a close and said the court will announce its decision on the case in the coming days.
Includes reporting by - © AFP 2024
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