'Distorted Picture': Israel Responds to South Africa's Genocide Claims at ICJ

After South Africa's arguments yesterday, Israel issued a rebuttal statement at the ICJ on 12 January.

The hearing of South Africa’s International Court of Justice petition against Israel, calling on the court to investigate whether Israel was committing genocide against Palestinians, at The Hague in Netherlands entered its second day on Friday, 12 January.

After the South African legal team, led by John Dugard, a former UN special rapporteur on human rights in the occupied Palestinian territories, presented its case, the Israeli side presented its rebuttal.

The extensive 84-page application submitted by South Africa is the most significant call to categorise Israel’s actions as genocide and was submitted on 29 December, at a time whether the death toll in Gaza has reached a reported 23,000 Palestinians, predominantly comprising women and children.

In a furious response hours after the end of the first day’s proceedings, Netanyahu said, “We are fighting terrorists, we are fighting lies. Today we saw an upside down world. Israel is accused of genocide while it is fighting against genocide.”

South Africa's Case: Israel's 7 October Response Crossed the Line

The ultimate determination of whether Israel is engaged in genocide will be made by the ICJ, a process that may extend over several years. Prior to addressing the merits of the case, the court will first decide on its jurisdiction and assess whether the alleged acts fall under the provisions of the 1948 Genocide Convention.

The hearing commenced with the presentation of South Africa's case against Israel and the urgent plea for Israel to promptly cease its military operations in Gaza.

Justice Minister Ronald Lamola, along with Ambassador Vusi Mandonsela, presented a comprehensive case against Israel. Lamola condemned Hamas's targeting of civilians on 7 October, 2023, but argued that Israel's response "crossed this line and gave rise to breaches of the convention."

Moreover, while Lamola acknowledged that South Africa condemned the targeting of civilians by Hamas on 7 October 2023, he argued that “no armed attack on a state territory, no matter how serious,” can serve as justification for Israel breaching the Genocide convention.

Lamola was met with cries of “Thank you, South Africa” when he addressed the pro-Palestinian crowd outside the court after the hearing.

South Africa’s ambassador to the Netherlands, Vusi Mandonsela, further argued that his country placed Israel’s “genocidal acts and omissions” within the context of Israel’s 76-year occupation and a consequent 16-year siege of the Gaza Strip, labeling it as a “silent killer” of people.

Meanwhile, Vaughan Lowe KC, part of the South African legal team, said:

“Nothing can ever justify genocide no matter what some individuals within the group of Palestinians in Gaza may have done, no matter how great a threat to Israeli citizens might be, genocidal attacks on the whole of Gaza and the whole of its population with the intent of destroying them cannot be justified.”

Max Du Plessis, associate professor of law at the University of KwaZulu-Natal, emphasised destructive acts in Gaza as perpetrated by an occupying power, violating Palestinian rights to self-determination and said,

More Allegations: The Two 'Genocidal Acts' by Israel 

Meanwhile, renowned lawyer Adila Hassim laid out genocide charges against Israel, citing mass killings in Gaza as the first genocidal act. She argued that the second genocidal act, under Article 2B of the Genocide Convention, is the bodily and mental harm inflicted on Palestinians, with evidence of a collapsed healthcare system and trauma from essentials being cut off to cause further distress to residents of Gaza.

Hassim’s legal career has spanned decades with a sharp focus on matters of socio-economic rights matters, constitutional, administrative, health, and competition law. She is also the co-founder of anti-corruption group Corruption Watch.

Hassim argued that ‘the suffering of the Palestinian people, physical and mental, is undeniable’, and constitutes Israel’s “second genocidal act”. She said that as a result of Israel’s attacks, thousands of Palestinian women and children have been wounded and maimed, all while the healthcare system has all but collapsed.

Moreover, Israeli forces have inflicted untold mental trauma on Palestinians, children included, who have been “arrested, blindfolded, forced to undress and loaded onto trucks and taken to unknown locations.”

'Genocidal Rhetoric by Top Israeli Leaders'

Tembeka Ngcukaitobi, South African lawyer and legal scholar, highlighted genocidal rhetoric by top Israeli leaders, including Netanyahu and Gallant, and criticised Israel's failure to condemn, prevent, and punish genocidal incitement.

John Dugard addressed the question of jurisdiction, stating that state parties have obligations to prevent genocidal acts, justifying South Africa's case in the ICJ.

Proving genocide, especially on a stage like the ICJ’s Grand Hall is often challenging, requiring clear evidence of intent according to the convention's definition. Israel's military insists it does not intend to harm civilians, only targeting Hamas. However, South Africa's application cites statements from Israeli leaders as evidence of the country's intent to commit or fail to prevent genocidal acts.

Blinne Ni Ghralaigh, an experienced trial and appellate lawyer, emphasised the urgent need for provisional measures to protect Palestinians in Gaza from irreparable prejudice caused by Israel's violation of the genocide convention, pointing to a public health disaster.

She outlined how, each day, Palestinians were being “blown to pieces” and dozens of children were being labeled WCNSFs – Wounded Child, No Surviving Family.

Vaughan Lowe argued that South Africa's case meets the requirements for provisional measures, clarifying that Hamas cannot be a party to the Genocide Convention or these proceedings as it is not a state.

Israel Responds to Claims of Genocide

Israel's legal team responded on the second day of hearings at the UN's top court to South Africa's accusations of a genocidal campaign during Israel's war against Hamas. Israel's Foreign Ministry's legal adviser, Becker, condemned South Africa's "grossly distorted story" and argued that if there were acts of genocide, they were perpetrated against Israel.

“If there were acts of genocide, they have been perpetrated against Israel,” Becker said.

Becker also criticised South Africa's assertion that Israel doesn't have the right to self-defense against Hamas, stating that denying Israel's defense would allow a genocidal organization to harm its civilians without consequences.

“If the claim of the applicant is that Israel must be denied the ability to defend citizens, the absurd upshot is that under guise of genocide claims this court is trying to stop Israel defending its civilians against an organization which pursues a genocidal agenda against them."

Speaking after Becker, Prof Malcolm Shaw emphasised that not every conflict is genocidal and warned against diluting the gravity of the term. He criticized South Africa for presenting a "distorted picture" of Israeli politicians' comments to establish genocidal intent.

“Not every conflict is genocidal. The crime of genocide in international law and under the Genocide Convention is a uniquely malicious manifestation and stands alone among violations of international law as the zenith of evil, the crime of crimes, ultimate in wickedness."

Malcolm Shaw

Shaw highlighted that only policy decisions by the Israeli war cabinet and security cabinet matter in determining Israeli policy in the Gaza war. He pointed to IDF standing orders to differentiate between military and civilian targets and cited statements by PM Benjamin Netanyahu and Defense Minister Yoav Gallant, affirming the goal to destroy Hamas without targeting the Palestinian people.

How Effective is an ICJ Hearing?

While the court has the authority to settle disputes between countries, it has no power to enforce its decisions despite them being legally binding.

Moreover, Matters at the ICJ are not fast-paced, to say the least. Proceedings can take years in some cases (Gambia’s petition against Myanmar has been deliberated upon since 2019 without verdict).

However, given South Africa’s request to expedite proceedings, their call for the ICJ to issue an emergency order may speed the case up, similar to Ukraine’s case against Russia.

While the court has authority to settle disputes between countries, it has no actual power to enforce its decisions even though they are legally binding.

Again, just like in Ukraine’s case, where the ICJ sided with Kyiv on its application accusing Russia of genocide amid Moscow’s invasion and ordered Russia to halt its military operations in Ukraine, nothing changed.

Additionally, the case for genocide is quite difficult to prove, predominantly due to the definition in the convention, which requires that the intent to commit the acts must be made clear.

Regardless of the hurdles, South Africa’s premature victory was in the fact that Israel forgone its decades-long policy of ignoring the ICJ and its proceedings and put forward a defense against the allegations.

Responding to the lawsuit, the country’s Ministry of Foreign Affairs denied the allegations and called the case a “despicable and contemptuous exploitation” of the court.

A ministry statement further accused Pretoria of being “criminally complicit” in Hamas’ attacks and spokesperson Eylon Levy said, “We assure South Africa’s leaders, history will judge you, and it will judge you without mercy.”

Both sides also have some support behind them.

While Israel grows more isolated on the global stage, the US has rejected South Africa's appeal and White House National Security Council spokesperson John Kirby said "We find this submission meritless, counterproductive, and completely without any basis in fact whatsoever.”

Meanwhile, Turkey, Jordan, Malaysia are some of the countries that have thrown their weight behind South Africa.