The hearing of South Africa’s genocide case against Israel wrapped up at the Peace Palace in the Hague this afternoon.
In a world submerged in fake news, alternative facts and bullshit, the two-day proceeding offered a welcome respite. Faced by a row of the seventeen stone-faced, robe-clad judges of the International Court of Justice (ICJ), the South African and the Israeli legal teams battled it out, with evidence, arguments and oratory as their only weapons.
If nothing else, the hearing has shown that international law has a role to play as an enabler of civilised debate between states — even on the most politicised, polarised and poisonous of topics.
Legal experts will no doubt spend the weekend writing up their analyses of the hearing, and we expect to see passionate debates about whether South Africa or Israel was the stronger side. But we do not know who — if any — of the two teams will emerge victorious.
“The deaths in the conflict between Israel and Hamas do not demonstrate genocidal intent. Israel may be on shakier ground with respect to its prohibitions and far-reaching restrictions on the delivery of humanitarian aid, leading to the dreadful humanitarian plight of the Palestinians in Gaza”, said Stuart Maslen, Honorary Professor of International Law, after the hearing had concluded.
“On balance, while an order for provisional measures is certainly possible, it seems unlikely,” Maslen said.
The seventeen judges will meet in camera over the next days and weeks to decide whether to impose provisional measures to address the situation in Gaza. Few speak with certainty about the outcome, and many question whether it will have any impact on the humanitarian catastrophe unfolding in Gaza.
The jury is, quite literally, out.
For more about the case, check out Lex International’s briefing note. For an unedited write-up of the main arguments made by South Africa and Israel, read on.
South Africa’s Genocide Case against Israel at the International Court of Justice
On 11 January 2023, the South African legal team made six key arguments to bolster its request for provisional measures:
The acts carried out by Israel in Gaza “show systematic patterns of conduct from which genocide can be inferred”: Adila Hassim, senior council for South Africa, presented evidence of mass killings, infliction of serious bodily or mental harm to Palestinians in Gaza, risk of death by starvation, dehydration and disease. She underscored that, to impose provisional measures, it is not necessary for the court to come to a final view of whether these acts constitute genocide, only that some of the acts “are capable of falling within” the Genocide Convention.
Statements made by Israel’s political leaders, military commanders and persons holding official positions demonstrate “genocidal intent”: Tembeka Ngcukaitobi, another member of the South African legal team, highlighted several statements made by Israeli officials, including Prime Minister Benjamin Netanyahu’s call on Israeli soldiers to “remember what Amalek has done to you”. Amalek, Ngcukaitobi explained, “refers to the Biblical command by God to Saul for the retaliatory destruction of an entire group of people”. Ngcukaitobi also argued that Israel has failed to condemn, prevent and punish genocidal incitement, which itself constitute a violation of the Genocide Convention.
The ICJ has jurisdiction — i.e. the power to make legal decisions and judgements — in the case: John Dugard, the head of the South African legal team, argued that the prevention of genocide is not a bilateral matter between states, but that the obligations under the Genocide Convention are “erga omnes, obligations owed to the international community as a whole”. Dugard outlined the process that had led South Africa to file the application before the ICJ — including actions taken in other UN forums and an exchange of diplomatic notes — and argued, on this basis, the alleged genocide constitutes a “dispute” between South Africa and Israel.
The damage inflicted by Israel’s military campaign against Gaza constitute enough evidence of the risk of genocide that provisional measures are needed: Max Du Plessis, a member of the South African legal team, argued that for the ICJ to exercise its power to introduce provisional measures, the rights whose protection is sought “must be at least plausible”. It is, in other words, it is not necessary for the Court to rule whether Israel’s conduct in Gaza amounts to genocide or not, it could already determine that there is a serious risk of it occurring and therefore decide that Israel has to take provisional measures to prevent genocide. Du Plessis referred to statements by a number of UN bodies and experts, which “have collectively considered the acts by Israel to be genocidal or at the very least warned that the Palestinian people [are] at risk of genocide”.
There is a risk of irreparable harm and a situation of urgency: Blinne Ni Ghralaigh, an Irish member of the South African legal team, referred to statements by the UN Secretary-General and other officials, which describe the situation in Gaza as “a crisis of humanity”, “a living hell”, “a bloodbath” and a “situation of utter deepening and unmatched horror where an entire population is besieged and under attack, denied access to the essentials for survival on a massive scale”. She also warned against a “public health disaster” and experts warning that deaths from starvation and disease are significantly outnumbering deaths from the bombings.
In their response, on 12 November, the Israeli legal team sought to debunk the points made by South Africa, asking the court to reject South Africa’s reject for provisional measures:
The actions carried out by Israel in Gaza are acts of self-defence against Hamas: Tal Becker, the legal adviser of the Israeli Ministry of Foreign Affairs criticized the South African team for putting forward a “distorted factual and legal picture”, as they “ignored” the attack by Hamas on 7 October 2023. “It is impossible to understand the armed conflict in Gaza without appreciating the nature of the threat that Israel is facing and the brutality and lawlessness of the armed force confronting it”, he said. Becker underscored that “Israel is in a war of defence against Hamas, not against the Palestinian people”, and said that South Africa’s calls for provisional measures “cannot stand” because Israel has the right to defend itself.
Evidence of genocidal intent is lacking: Malcolm Shaw, a British member of the Israeli legal team, argued that there “is little beyond random assertions that Israel has, or has had, the specific intent to destroy, in whole or in part, the Palestinian people as such”. Efforts by Israel to restrict its targeting practices, to mitigate civilian harm, and to facilitate the delivery of humanitarian aid “demonstrate the exact opposite of genocidal intent”, Shaw said, while adding that an intention for Israel to act to defend itself “certainly exists”.
There is no dispute between Israel and South Africa: Shaw also took issue with the claim made by John Dugard of South Africa that there exists a “dispute” between South Africa and Israel, arguing that Israel had tried to open bilateral talks with South Africa. If South Africa had taken up Israel’s offer, Shaw argued, “the parties may have decided there was no dispute to take up in court.
Hamas is responsible for the civilian suffering caused in Gaza: Countering claims made by South Africa on the preceding day, Galit Raguan, acting director of the international justice division at Israel justice ministry, said that the civilian suffering in Gaza is a result of Hamas embedding itself “among the civilian population”. Raguan introduced evidence showing Hamas attacks from schools, hospitals and in close proximity to humanitarian safe zones, and said that the Israeli ministry provide advance warning before they launch any attack to protect the civilian population. Raguan also stated that much for the civilian suffering caused in Gaza were the direct result of Hamas own actions and listed the blast at the al-Ahli hospital on 17 October, which killed hundreds of civilians, as an example. “It was not, as Hamas claimed, the fault of the [Israeli Defence Forces]”, she said.
Provisional measures are not needed: Omri Sender, a member of the Israeli Defence team, argued that the provisional measures requested by South Africa are not needed, because Israel are taking concrete measures to improve the humanitarian situation in Gaza. Sender said that Israel is facilitating and increasing the entry of food, water, medical personnel and equipment, tents, fuel and cooking gas, and established hospitals. As such, Sender argued, provisional measures are unnecessary. “It is Israel and its citizens that would be at risk of irreparable harm, if the request of South Africa were to be granted”, he said.