South Africa CaseAccusing Israel of Genocide at The International Court of Justice (ICJ)

South Africa has presented its case accusing Israel of genocide at the International Court of Justice, saying Israel’s plan to “destroy” Gaza comes from the “highest level of the state.” Israel’s “genocidal intent” was evident “from the way in which this military attack is being conducted,” South African lawyers said. South Africa called on the court to order Israel to cease military operations in Gaza, adding, “every day there is mounting, irreparable loss of life, property, dignity and humanity for the Palestinian people. Nothing will stop the suffering, except an order from this court.” At the time of writing, Israel is presenting its defense before the ICJ. Anna Holligan and Oliver Slow report for BBC News.

John V. Whitbeck is a Paris-based international lawyer.

“Today’s Israeli defense in the ICJ genocide case was a painful-to-watch flood of substantive lies and distortions which should be obvious anyone who has been paying attention to Israel’s actions and publicly expressed intentions over the past three months and which judges who have been paying attention should have found insulting, objectionable and prejudicial to Israel’s defense.
Extraordinarily, the Israeli legal team argued that the Hamas attack of October 7 meets the legal definition of “genocide” and that South Africa is therefore complicit in genocide, while everything that Israel has done in Gaza since October 7 has not only been in legitimate self-defense but in full compliance with international law, with constant attention to avoiding or mitigating any harm to Palestinian civilians. 
However, there was one technical argument to which the Israeli legal team paid considerable attention which is potentially worrying — that, prior to December 29, when South Africa submitted its application to the ICJ, there was no “dispute” between South Africa and Israel, as is necessary to establish ICJ jurisdiction in this case. 
Somehow, this technical argument does not appear to have been an obstacle to Gambia’s genocide case against Myanimar, but it may be Israel’s best hope in this case and could be seized upon by any judge reluctant to anger the American and Israeli governments. 

I would hope that no judge other than the American judge will be tempted to seize this escape route.”

Israel’s defense opened with a detailed description of Hamas’ Oct. 7 attacks, arguing “it is impossible to understand the armed conflict in Gaza without appreciating the nature of the threat that Israel is facing.” Israeli lawyer Tal Becker added, “none of these atrocities absolve Israel of its obligations under the law. But they do enable the court to appreciate core aspects of the present proceedings which the applicant (South Africa) has obscured from view.” Becker told the court that South Africa presented “a sweeping counter-factual description” of the conflict. Israel’s legal team also asserted that South Africa’s request for an immediate ceasefire would allow Hamas “not just get away with murder…but render Israel defenseless as Hamas continues to commit it.” Alexander Smith reports for NBC News.

Israel shows ‘chilling’ intent to commit genocide in Gaza, South Africa tells UN court

 One of the most chilling parts of South Africa’s genocide case today was a video of Israeli troops dancing and chanting that there are “no uninvolved citizens.” That’s a recipe for war crimes, showing they heard the message sent by Netanyahu and Gallant.

 Israel Dismisses Genocidal Intent as ‘Random Assertions’

 A barrister for Israel argued that Israeli prime minister and cabinet members’ statements of intent to commit genocide were mere “random assertions,” and he instead accused South Africa of complicity in genocide, reports Joe Lauria. 

Israel Faces Justice in The Hague – These are the Possible Scenarios

By John Whitbeck

There is no legal or moral reason for the ICJ not to order the provisional measures sought by South Africa unanimously.

The three hours of oral arguments by the six members of the South African legal team, on the first day of hearings at the International Court of Justice (ICJ) on the genocide case initiated against Israel by South Africa were highly professional and impressive.

In 2020, in the genocide case brought by Gambia against Myanmar, the ICJ unanimously ordered the following “provisional measures”, which are fully (and no doubt intentionally) consistent with the provisional measures sought by South Africa:

For these reasons, The Court, 

Indicates the following provisional measures:

Unanimously,

The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to the members of the

group;

(c) deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part; and

(d) imposing measures intended to prevent births within the group.

Explicitly Genocidal Intent’

While the horrors inflicted upon the Rohingya were appalling, it is clear, as argued by the South African legal team, that the horrors already inflicted and continuing to be inflicted upon the Palestinian people in Gaza are “sadly even more stark” and “of much greater severity”.

And, significantly for proving “intention” under the Genocide Convention, these horrors are openly advocated and avowed by abundant public declarations of explicitly genocidal intent.

Accordingly, there is no legal or moral reason for the ICJ not to order the provisional measures sought by South Africa unanimously, subject only to the presumed politically motivated dissent of the ad hocjudge added to the court by the Israeli government and the possible politically motivated dissent of the American judge.

Since four of the court’s judges, including the American judge, who is currently serving as president of the court, are scheduled to retire and be replaced on February 6, one may anticipate that the court will issue its order prior to February 6. 

In light of the urgency of the matter, one may hope that the court will issue its order much sooner.

While ICJ orders are binding and non-appealable, it is clear that Israel will ignore any order of the ICJ, as it has ignored the court’s near-unanimous (the American judge dissenting) 2004 opinion on the illegality of the Apartheid Wall and all “binding” UN Security Council resolutions and “non-binding” UN General Assembly resolutions against it.

https://www.palestinechronicle.com/live-blog-south-africas-icj-case-against-israel-over-gaza-genocide/embed/#?secret=ApLtxO81gB#?secret=th6bnJSGw5 However, after such an order is issued, it will be awkward (albeit far from impossible) for the the governments of the US, the UK and other Western countries to defy a “binding” order of the world’s highest judicial authority by continuing to support, militarily, financially and diplomatically, Israel’s genocidal assault against the people of Gaza.

Notably, in the case of the United States, by vetoing a new UN Security Council resolution (probably to be introduced by new temporary member Algeria) demanding that all states comply with the ICJ’s order – effectively, another demand for an immediate ceasefire.

If the United States were to veto such a resolution, it would be reconfirming that the subservience of its political class to Israeli domination and control has reduced the United States to the status, like Israel, of an outlaw, rogue and pariah state.

Even Genocide Joe might hesitate.

ICJ hearings: Israel takes to the stand.

Friday marked the second day of hearings at the International Court of Justice in The Hague in the genocide case against Israel. After the South African team laid out its arguments on Thursday as to why Israel’s relentless campaign of violence in the Gaza Strip since October 7 constitutes a deliberate and genocidal attack on Palestinians as a whole, Israel took to the stand on Friday to defend its record, hoping to convince the court’s 15 judges to drop the case altogether.

The Israeli defense, as laid out in opening remarks by Israeli foreign ministry legal adviser Tal Becker, did not bring many surprises for those who have been following the Israeli government’s statements since October 7. 

Opening his statement by invoking the Holocaust, Becker said that South Africa was presenting “a profoundly distorted factual and legal picture,” “hinge[ing] on a deliberately curated, decontextualized and manipulative description of the reality of current hostilities.”

The Israeli defense team hinged most of its argumentation on the October 7 attack, arguing that Tel Aviv was acting in self-defense, and that it was Hamas, in fact, that was guilty of the crimes Israel was now standing trial for.

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

Israel’s lawyers repeatedly maintained that it was doing its utmost to minimize harm to civilians and comply with international law– claims that have been repeatedly debunked – and that Hamas was responsible for the death of Palestinian civilians in Gaza because it was using them as “human shields.”

British legal expert Malcolm Shaw meanwhile downplayed South Africa’s argument that numerous Israeli officials’ statements calling for the ethnic cleansing of Gaza was “misleading,” and that there wasn’t sufficient proof of “special intent” to commit genocidal crimes.

Addressing the actions of Israeli soldiers in Gaza, many of them filmed and shared by soldiers themselves, Shaw said: “Were it the case, which we deny, that Israeli forces have transgressed some rules of conflict, then the matter would be tackled at the appropriate time, by Israel’s independent and robust legal system.”

Crimes committed against Palestinians at the hands of Israeli forces are rarely prosecuted, creating a “culture of impunity” within Israel’s armed forces that has been documented and denounced for decades.

Israel’s oral arguments ended at midday on Friday, as the Israeli Foreign Ministry maintained that there was “no basis” to South Africa’s case. The ICJ judges are expected to reach a verdict in coming weeks regarding whether to conduct a full investigation into genocide, and/or issue intermediary injunctions for Israel to stop its assault on Gaza, as South Africa has requested.

“I called the legal advisor of the Ministry of Foreign Affairs to thank him and the members of the Israeli legal team for their impressive performance that undermined all the hypocritical arguments of South Africa, and revealed its true face as a loyal representative of a terrorist organization that inhumanely slaughtered babies, children, women and adults,” ministry spokesman Israel Katz said.

Israeli officials have been, in the words of the Times of Israel, “seething” following South Africa’s oral arguments on Thursday, accusing Pretoria of serving as “Hamas’ lawyer” and of peddling “baseless” claims.

“Today, again, we saw an upside-down world, in which the State of Israel is accused of genocide at a time when it is fighting genocide,” Israeli Prime Minister Benjamin Netanyahu said on Thursday in response to South Africa.

Israel media outlets, however, had a more mitigated response to South Africa’s case than the government.

While the Jerusalem Post argued that South Africa’s arguments “miserably… fail laws of war,” the Times of Israel estimated that “South Africa paints grim picture of Gaza, but obfuscates foundations of genocide claim.” Centrist newspaper Haaretz, however, wondered whether South Africa had pre-emptively “wrecked Israel’s defense” by debunking certain Israeli arguments on Thursday before its representatives had a chance to make them. Ynet, meanwhile, worried that Israel was already losing in the court of public opinion.

“Merely the fact that the state is positioned in the defendant’s seat, regardless of the trial’s outcome, already reinforces the perception and narrative that the actions in the Gaza Strip are illegal and that the accusations against Israel are indeed credible,” a columnist wrote.

Supporters of human rights and of Palestine have meanwhile hailed South Africa for representing the case in The Hague.

“We commend South Africa for bringing this case to the ICJ at a time when the rights of Palestinians in Gaza are being violated with impunity,” U.N. human rights experts wrote on Thursday. “We call on all States to cooperate with the Court as it interprets the Genocide Convention and to respect the role of the ICJ as an independent court of law.”

Palestinian Authority Prime Minister Mohammad Shtayyeh expressed his gratitude to South Africa on Thursday.

“The indictment against Israel was signed by South African President Matamela Cyril Ramaphosa with the ink of Nelson Mandela’s legacy, Desmond Tutu, and Steve Biko. Colonialism, settlement, and the apartheid system that lasted from 1640 to 1994 in South Africa were defeated,” WAFA news agency quoted him as saying.

“Here we are facing genocide, destruction of homes, uprooting of trees, settler terrorism, a racist apartheid system, claims of racial superiority, forced displacement attempts, land annexation, and military occupation. Despite all this, we will triumph and achieve our right to self-determination.”

A number of Palestinian factions also commented favorably on the case, and called on the ICJ and international powers to abide by the Genocide Convention and act to stop Israel’s war crimes.

“The International Court of Justice has significant and ethical responsibilities in seriously following up on this invitation presented by South Africa, away from the policy of procrastination and stalling or succumbing to American and Western pressures. It is time for these institutions to abandon their negligence and complicity by taking effective decisions to stop the aggression, and to prosecute the leaders of the Zionist occupation as war criminals before the International Criminal Court, and all who joined them, supported them, and gave them the green light to continue the genocide war against the Palestinian people,” the Popular Front for the Liberation of Palestine said in a statement on Thursday.

Israel Dismisses Genocidal Intent as ‘Random Assertions’

By Joe Lauria
Special to Consortium News

In its defense against allegations by South Africa that it is committing genocide in Gaza, a British barrister arguing at the World Court on Friday for Israel downplayed numerous statements by senior Israeli officials of genocidal intent against Palestinians as mere “random assertions” that prove nothing.  

Instead, the barrister turned the tables, accusing South Africa itself of complicity in genocide. 

Kings Counselor Malcolm Shaw, for Israel, told the Court on the second day of a two-day hearing: 

“As far as acts are concerned in this case, there is little beyond random assertions to demonstrate that Israel has or has had the specific intent to destroy in whole or in part the Palestinian people as such.”

Without proving intent, Shaw argued, a genocide case is impossible. “It is like Hamlet without the prince, a car without an engine,” he said.  As Shaw himself pointed out, lawyers for South Africa on Thursday thus “placed considerable emphasis upon intent.”
They laid out in great detail the “genocidal rhetoric” of Israeli officials and how it has influenced Israeli soldiers and airmen attacking Gaza. Prime Minister Benjamin Netanyahu twice referred to an Old Testament genocide implying the same was needed for Gaza, argued attorney Tembeka Ngcukaitobi.

“The genocidal invocation to Amalek was anything but idle,” Ngcukaitobi said.  He then showed a video of Israeli soldiers singing in celebration of a victory in Gaza, in which they mention Amalek.

On Oct. 9, Defense Minister, Yoav Gallant, Ngcukaitobi, went on: “gave a situation update to the Army where he said that as Israel was imposing a complete siege on Gaza, there would be ‘no electricity, no food, no water, no fuel,’ everything would be closed because Israel is fighting human animals. Speaking to troops on the Gaza border, he instructed them that he has released all the restraints and that Gaza won’t return to what it was before.

‘We will eliminate everything. We will reach all places. Eliminate everything there, reach all places without any restraints.’

Heritage Minister Amichai Eliyahu said that Israel must find ways for Gazans that are more painful than death. It is no answer to say that neither are in command of the army. They are ministers in the Israeli government. They vote in the Knesset and are in a position to shape state policy. The intent to destroy Gaza has been nurtured at the highest levels of state. … 

Senior political and military officials encouraged without censure, the 95 year old Israeli army reservist Ezra Yachin, a veteran of the Deir Yassin massacre against the Palestinians in 1948, to speak to the soldiers ahead of the ground invasion in Gaza. In his talk, he echoed the same sentiment while being driven around in an official Israeli army vehicle dressed in Israeli army fatigue.

‘I quote the triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live. If you have an Arab neighbor, don’t wait. Go to his home and shoot him. We want to invade. Not like before. We want to enter and destroy what’s in front of us and destroy houses.’”

These are some of what Shaw dismissed on Friday as “random assertions.” The barrister said that only Israel’s ministerial committee on national security and the war cabinet can make decisions on policy and intent in Gaza. “To produce random quotes that are not in conformity with government policy is misleading at best,” he said. 

However, both Netanyahu and Gallant, whose “genocidal” statements were quoted by the South African lawyers, are members of the war cabinet. Minister of National Security Itamar Ben-Gvir and Finance Minister Bezalel Smotrich are on the national security committee, and both have made numerous statements about Palestinians that can be construed as genocidal in intent.  

Shaw only mentioned the South Africans quoting the heritage minister who is not on either committee and ignored reference to those ministers who are.   

And in response to South Africa on Thursday linking ministers’ “genocidal” statements to that of Israeli combatants, Shaw said “remarks or actions of a soldier do not and cannot reflect policy.”

Shaw contended that Israel’s intent is not genocide but to “deal with Hamas” in response to its Oct. 7 attack on Israel, which he called itself “genocidal.” He said: “The truth is that if there has been any genocidal activity in this situation, it was the events of seventh of October.”  

Shaw ridiculed South Africa’s argument on Thursday of the need for historical context to place Hamas’ Oct. 7 attack in a 75-year history of Israeli dispossession and abuses of Palestinians. 

Shaw asked why not go back to the 1922 decision of the League of Nations to create the British mandate in Palestine, or the 1917 Balfour Declaration that demonstrated Britain’s intent to create a Jewish homeland in Palestine or even to mention the Israelite tribes in there 3,000 years ago?

Israel Turns Tables, Accuses South Africa of ‘Complicity’ With Genocide

Shaw went further, alleging that indeed “complicity in genocide is in play” in the case. But he was not referring to the United States, Britain, Germany or any other ally of Israel that continues to supply weapons, ammunition, funding and two U.S. carrier groups in the region to deter any nation that dares intervene to stop Israel’s slaughter, as the U.S. did against Yemen on Thursday.  

No, Shaw was referring to “states that supported, condoned, praised or glorified the events of the seventh of October both at the time, and later” who he said “stand guilty of a violation of Article 3e of the Convention as being complicit in genocide and indeed of the duty to prevent genocide under Article 1.”   

And then Shaw said: “South Africa has given succor and support to Hamas, at the least.”

Tal Becker, a legal adviser to the Israeli Foreign Ministry who addressed the court before Shaw, told the Court that “on October 7th, before any military response by Israel, South Africa issued an official statement blaming Israel for, quote, the recent conflagration.” 

Becker then leveled his accusation that South Africa was complicit with a genocidal organization. He said: 

“The absurd upshot of South Africa’s argument is under the guise of the allegation against Israel of genocide, this court is asked to call for an end to operations against the ongoing attacks of an organization that pursues an actual genocidal agenda.

That is an unconscionable request and it is respectfully submitted that it cannot stand. … The court is informed of the events of October 7th, because if there are any provisional measures that should appropriately be indicated here, they are indeed with respect to South Africa. It is a matter of public record that South Africa enjoys close relations with Hamas, despite its formal recognition as a terrorist organization by numerous states across the world.

South Africa has long hosted and celebrated its ties with Hamas figures, including a senior Hamas delegation that incredibly visited the country for, quote, solidarity just weeks after the massacre. In justifying instituting proceedings, South Africa makes much of its obligations under the Genocide Convention. It seems fitting, then, that it be instructed to comply with those obligations itself to end its own language of delegitimization, of Israel’s existence and its support for Hamas.”

 Becker then blamed South Africa for “weaponizing”  genocide. He said:

“The attempt to weaponize the term genocide against Israel in the present context does more than tell the court a grossly distorted story. And it does more than empty the word of its unique force and special meaning. It subverts the object and purpose of the convention itself with ramifications for all states seeking to defend themselves against those who demonstrate total disdain for life and for the law.”

For good measure, Becker threw in this deceptive remark about Hamas, referring to “Hamas’s violent takeover in 2007.”  Hamas was elected in 2006. It later fought against Fatah to essentially defend its election, but it is false to say Hamas took over Gaza violently. 

In a similarly deceptive manner, lawyers for Israel tried to explain away the destruction of nearly half the buildings of Gaza in the past three months as resulting from Hamas booby-traps and its errant rockets. 

Israel’s ‘Warnings’

Shaw claimed that Israel warns civilians of impending attack through the “unprecedented and extensive use” of telephone calls and leafletting. Typically these calls give residents ten minutes to leave their buildings before they are bombed.  The leaflets told residents of northern Gaza to move south where they were then bombed enroute and repeatedly in the south once they arrived there. 

But Shaw argued that these warnings, coupled with Israel’s “facilitation” of humanitarian aid all “demonstrate the precise opposite of any possible genocidal intent” by Israel.  

The U.N. has repeatedly complained that Israel is severely restricting the amount of aid being allowed into Gaza compared to 500 trucks a day before its military operation began on Oct. 7. Gallants statement that there would be “‘no electricity, no food, no water, no fuel,” flies in the face of a contention that Israeli is “facilitating” humanitarian aid.

Malcolm argued that the World Court did not have jurisdiction to hear South Africa’s case because South Africa did not establish that there was a dispute between two states. Shaw said that South Africa did not wait for a reply to its note verbal before launching the case against it at the ICJ on Dec. 29.  

The jurisdiction for any question of war crimes needed to be in Israel, Shaw said. If in the course of its action against Hamas Israel overstepped the laws of war it would “tackled at the appropriate time” by Israel’s “robust legal system,” he said.  

Israel’s ‘Right to Self Defense’

Both Shaw and Becker sought to twist the argument of British barrister Vaughn Lowe, who on Thursday argued before the court that based on a past World Court ruling Israel had no right to self-defense on the occupied territory of Palestine.  

He did not say they had no right to defend itself on Israeli territory. But this is what Shaw and Becker tried to elude. Becker quote from Lowe’s writing that:

“The source of the attack, whether a state or non-state actor, is irrelevant to the existence of the right to defense force may be used to avert a threat because no one and no state is obliged by law passively to suffer the delivery of an attack.”  

Neither Shaw nor Becker addressed the heart of the matter upon which the World Court had ruled, namely that Israel had no right to self-defense on a territory it occupies.

Lowe on Thursday referred to the 2004 World Court decision against the legality of Israel’s wall, which is built on occupied Palestinian territory.

“In its advisory opinion on the wall case, the court noted that the threat that Israel had argued justified the construction of the wall was not imputed to a foreign state, but emanated from the occupied Palestinian territory over which Israel itself exercises control,” Lowe said. 

“For those reasons, the court decided, as a matter of international law, the right of self-defense under Article 51 of the charter, the U.N. Charter, had no relevance in such circumstances,” he said.

Just three weeks ago the U.N. Security Council reaffirmed that Gaza is occupied territory, he said. “The tightness of its grip may have varied, but no one can doubt the continuous reality of Israel’s grip on Gaza,” Lowe said.

“The court’s legal holding from 2004 holds good, and a similar point is to be made here what Israel is doing in Gaza, it is doing in territory under its own control. Its actions are enforcing its occupation. The law on self-defense under Article 51 of the U.N. Charter has no application,” he said.

Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe,He is the author of two books, A Political Odyssey, with Sen. Mike Gravel.

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