Israel, South Africa face off in Gaza genocide case

South Africa presented the case, citing high casualties and destruction in Gaza, seeking provisional measures to halt Israel's campaign. Israel denies, claims self-defence against Hamas. ICJ to decide

There are many provisional graves in Gaza, like this one (pictured) at the Al-Shifa Hospital. (photo: DW)
There are many provisional graves in Gaza, like this one (pictured) at the Al-Shifa Hospital. (photo: DW)
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DW

The Palace of Peace, an ornate red-brick building in The Hague that houses the International Court of Justice (ICJ), is a long way from the bombed-out streets of Gaza or the Israeli Kibbutzim laid to waste on October 7.

But on Thursday (11 January) and Friday (12 January), its Great Hall of Justice was transported to Israel and the Occupied Palestinian Territories. Legal teams from Israel and South Africa painted competing pictures of Israel's military offensive in Gaza for the consideration of the UN top court's judges, not to mention the rest of the world.

In one, South Africa accused Israel of carrying out a genocide of the Palestinian population in Gaza, with its campaign against Hamas, the militant Islamist group that controls the tiny, densely populated strip.

In the other, Israel vehemently denied those charges and accused South Africa of conjuring up a profoundly distorted reality. The Israeli Defense Forces' actions had to be understood in the context of two-party war and as Israeli self-defense against Hamas, which is classified by the US, EU and others as a terrorist organization, Israel stressed.

Tense hearings kick off long process

South Africa, whose post-apartheid government has long-standing ties with the Palestinian cause and frequently condemns Israel, filed its case in late December 2023. The country also requested so-called "provisional measures" from the ICJ that would order Israel to halt its campaign immediately and allow more humanitarian aid in, among other things.

Israel is asking the ICJ, sometimes dubbed the World Court, to dismiss South Africa's case, as well as the provisional measures.

The ICJ's judgment on whether Israel can be considered guilty under the 1948 Genocide Convention, which was implemented in the wake of Nazi Germany's mass murder of millions of European Jews in the Holocaust, could take months if not years.

A ruling on the provisional measures could come in a few weeks, but it is unclear how the ICJ could make Israel suspend its campaign should the judges side with South Africa.

'World should be ashamed' about what's going on in Gaza

On Thursday, South Africa laid out a blistering case against Israel's intense, three-month bombardment, which has the stated aim of wiping out Hamas' military capabilities.

More than 23,000 Palestinian deaths with 70% of them women and children, close to 60,000 injured, and thousands more missing, presumed dead, lawyer Adila Hassim summarized, citing figures from Gazan authorities and the United Nations in her statement. Eighty-five percent of the population displaced, one in four people starving, and swathes of buildings razed to the ground, she continued.

South Africa's legal team also sought to demonstrate that the Israeli government had so-called "genocidal intent", quoting officials and clips of Israeli soldiers, and to cast the present military campaign as part of decades of occupation and oppression.

Representing South Africa, Blinne Ní Ghralaigh told the ICJ that what was happening in Gaza was "the first genocide in history where its victims are broadcasting their own destruction in real time in the desperate, so far vain hope that the world might do something."

"It is becoming ever clearer that huge swathes of Gaza, entire towns, villages, refugee camps are being wiped from the map," the Irish lawyer said in the team's concluding statements. "There is no safe space in Gaza and the world should be ashamed."


Israel: Stopping would let 'Hamas get away with its murder'

On Friday, 12 January came Israel's turn to defend itself. In essence, Israeli lawyers argued that their country's actions in Gaza were not genocidal, but were acts of war in line with international law to defend the population in the wake of 7 October.

"Israel is in a war of defense against Hamas, not against the Palestinian people," Tal Becker, an advisor to the Israeli foreign ministry, told the Palace of Peace.

It was Hamas that had openly genocidal intentions against Israeli Jews, and not the other way round, Becker said, showing graphic imagery and voice recordings of Hamas' assault in southern Israel, when militants killed 1,200 people and seized 240 hostages.

"They tortured children in front of parents and parents in front of children, burned people, including infants, alive, and systematically raped and mutilated scores of women, men and children," Becker said.

The requested provisional measures would "thwart Israel's inherent right to defend itself, to let Hamas not just get away with its murder, literally, but render Israel defenseless as Hamas continues to commit it," Becker argued.

Moreover, Israel's defense team accused South Africa of acting as a mouthpiece for Hamas, of absolving the militant group of its responsibility for the plight of civilian Gazans, and of delegitimizing the existence of the Jewish state, which was founded in the wake of the Holocaust.

"It is almost as if there is no intensive armed conflict taking place between two parties at all. No grave threat to Israel and its citizens, only an Israeli assault on Gaza," Becker said.

Emotional scenes in The Hague

The preliminary hearings were emotionally charged both inside and outside the court building, with flag-waving pro-Israeli and pro-Palestinian demonstrators turning out in droves.

The first camp held up pictures of the more than 100 remaining hostages taken on October 7 and still believed to be held by Hamas in Gaza. The second displayed a banner with the names of Palestinian victims and clutched baby dolls made to look smeared with blood.

Eighteen-year-old Noam had travelled from the nearby city of Delft.

"I came here because I find this court case absurd," he told DW on Thursday. "It comes from an arrogance from the South African side."

"We don't accept this sort of allegation on our people because it doesn't show our mentality, it doesn't show our intentions. We don't want to kill mass amounts of people," he said.

Supporting South Africa's case was Anissa Pelouto. She urged "everyone, especially in Germany with the German history, to read the 84 pages of the case South Africa has submitted to the ICJ because it's a textbook case of genocide."

Final outcome unclear, legal experts say

The ICJ case can be brought because both South Africa and Israel are signatories of the 1948 Genocide Convention.

This international treaty obliges its signatories to prevent and punish the crime of genocide, defined as certain "acts that are intended to destroy, in whole or in part, a national, ethnical, racial or religious group."

But as legal experts told DW, there is a very high threshold for establishing genocide in the eyes of the law.


"It's very difficult to establish what's referred to as genocidal intent," Michael Becker of Trinity College Dublin said. "That question of whether the requisite level of intent is present is difficult to show in a court of law."

Yuval Shany of the Hebrew University in Jerusalem told DW that the South African legal team "had done a good job from their point of view in presenting their arguments."

"They have indicated that Palestinian civilians in Gaza are facing very significant threats and harm," Shany said, and also made use of comments by Israeli officials that "appear to qualify either as hate speech or even calls for genocide."

But Shany said he saw significant flaws in the case against Israel.

"Genocide is a very difficult charge to substantiate, and here they have not really addressed almost at all the fact that what is happening in the Gaza Strip is a state of war," he said.

If the ICJ does grant provisional measures they "might make an impact on the ground in real-time," he added.

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Published: 13 Jan 2024, 8:33 AM
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