Barrister Malcolm Shaw (R) and Israeli legal counsellor Tal Becker laugh prior to today's hearings of Israel's point of view as South Africa has requested the International Court of Justice to indicate measures concerning alleged violations of human rights by Israel in the Gaza Strip on January 12, 2024 in The Hague, Netherlands. On January 11 and January 12 at the International Court of Justice (ICJ), the judicial body of the United Nations, in The Hague, South Africa seized the ICJ, to ask it to rule on possible acts of "genocide" in the Gaza Strip by Israel. (Photo by Michel Porro/Getty Images)
South Africa has offered the court a “blindfold” and misrepresented the facts regarding armed conflict and the atrocities committed by Hamas, painting Israel, a victim of genocide, as the aggressor for its bombing of homes and infrastructure in Gaza.
Tal Becker, legal counsellor of Israel’s ministry of foreign affairs, and other members of the state’s legal team, argued during public hearings before the International Criminal Court of Justice in The Hague that Israel was acting in self-defence.
Becker argued that Israel had not launched genocidal attacks on civilians in Gaza but that instead Hamas is using homes, hospitals and UN facilities as human shields for its terrorist hubs from where it has been launching missiles.
Israel’s legal team on Friday presented its response to South Africa’s genocide case application, which it filed with the court on 29 December 2023, alleging that Israel was committing genocide against people living in Gaza.
The application concerned alleged violations of Israel’s obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide in relation to Palestinians in the Gaza Strip and South Africa’s responsibility as a signatory to the convention to prevent genocide.
The hearings, which concluded on Friday, were devoted to South Africa’s request for the court to indicate provisional measures against Israel to “protect against further, severe and irreparable harm to the rights of the Palestinian people” under the convention and to ensure Israel’s compliance with its obligations to prevent and punish genocide.
If the application is successful, the measures would include ordering Israel to suspend its military operation in Gaza, pending the outcome of the genocide case.
Becker argued on Friday that Israel is the victim of genocide in a war against Hamas that it did not want and South Africa was offering the court a “blindfold” as it had concealed “the nightmarish environment created by Hamas” in Gaza.
“Israel’s lawful aims in Gaza have been clearly and repeatedly articulated by its prime minister, its defence minister and all members of the war cabinet. As the prime minister reiterated yet again this week, Israel is fighting Hamas terrorists, not the civilian population,” Becker said.
“It wants to create a better future for Israelis and Palestinians alike [so] we both can live in peace, thrive and prosper. And where the Palestinian people have all the power to govern themselves but not the capacity to threaten Israel,” he said.
“If there is a humanitarian threat to the Palestinian civilians of Gaza, it stems primarily from the fact that they have lived under the control of a genocidal terrorist organisation that has total disregard for their life … and it seeks to deny Israel, Palestinians and Arab states across the region the ability to advance a common future of this coexistence, security and prosperity.”
Becker cited examples of war crimes committed against Israeli citizens during the 7 October air, land and sea invasion of Israel by thousands of Hamas militants who stormed communities, bases and a music festival.
He said what followed was “the wholesale massacre, mutilation, rape and abduction of as many citizens as the terrorists could find before Israel’s forces repelled them openly”.
“They torture 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.
He highlighted cases where a woman had allegedly been brutally repeatedly raped, as another militant cut off her breast and toyed with it before she was shot in the head while the rapist was “still inside her” and where a family was burned alive.
He also played a recording of a conversation from a phone taken in Israel during the attacks where an alleged Hamas militant is heard saying: “Dad I’m talking to you from a Jewish woman’s phone. I killed her and her husband. I killed 10 people with my own hands. Dad, open WhatsApp and see how I killed.”
Becker said about 1 200 people “were butchered that day, more than 5 500 men and some 240 hostages abducted, including infants, entire families, persons with disabilities and Holocaust survivors”.
“If there have been acts that may be characterised as genocidal, then they have been perpetrated against Israel. If there is a concern about the obligations of states under the Genocide Convention, then it is in relation to their responsibilities to act against Hamas’s proudly declared agenda of annihilation,” he said.
He said senior Palestinian leaders had called for the “cleansing of Palestine of the filth of the Jews” and played a 23 October clip from a Lebanese television network, LBC, in which senior Hamas member, Ghazi Hamad, tells an interviewer in reference to Israel that it would repeat the 7 October attack “again and again”.
“Israel is a country that has no place on our land. We must remove that country because it constitutes a security, military and political catastrophe to the Arab and Islamic nation … we must teach Israel a lesson and we will do this again and again.”
Becker said South Africa had long hosted, and celebrated, its ties with Hamas figures, including a senior Hamas delegation that had visited the country for a “solidarity gathering” weeks after the massacre.
He said the civilian suffering was because Hamas has “entrenched” itself within the civilian population and made Palestinian civilian suffering “an integral part of its strategy”.
“Hamas has systematically and unlawfully embedded its military operations, militants and assets throughout Gaza, within and beneath civilian areas. It has built an extensive warren of underground tunnels for its leaders and fighters, several hundred miles in length, throughout the strip, with thousands of access points and terrorist hubs located in homes, mosques, UN facilities, schools and, perhaps most shockingly, hospitals,” Becker said.
“This is not an occasional tactic. It is an integrated, pre-planned, extensive and abhorrent method of warfare — purposely and methodically murdering civilians; firing rockets indiscriminately; systematically using civilians, sensitive sites and civilian objects as shields; stealing and holding humanitarian supplies; allowing those under its control to suffer so that it can fuel its fighters and terrorist campaign.”
Israeli ministry of justice advocate Galit Raguan shared photographs of civilian sites, such as hospitals and UN facilities, and humanitarian zones from where missiles had been launched and where weapons had been found, in one case, in a hospital’s intensive care unit.
She said the Israel Defence Forces (IDF) employed measures in accordance with international humanitarian law, such as providing advance warnings of attacks, including dropping millions of leaflets with instructions to evacuate, making 70 000 phone calls and broadcasting messages over radio and social media warning civilians to distance themselves from Hamas operations.
Professor Malcolm Shaw told the court genocide stood alone as the “the zenith of evil … the crime of crimes, the ultimate in wickedness” and that the attack on Israel on 7 October was the real context of an act of genocide targeting Jews, which Israel had reacted to in self-defence.
He argued that South Africa had not given Israel the opportunity to meet with it to discuss its concerns about the allegations, as is required in international relations, before filing a case with the ICJ.
The court had made it clear that claims against a state “involving charges of exceptional gravity must be proved by evidence that is fully conclusive, that is not the case of the provisional measures stage, but it’s also not negligible” and it is also necessary to prove that there is “intent” to commit genocide.
Shaw said South Africa had made “little beyond random assertions” to demonstrate that Israel had the “specific intent” to destroy the Palestinian people. He said Israeli Prime Minister Benjamin Netanyahu had repeatedly called for the prevention of harm to civilians.
“The prime minister stated time and again, we must prevent a humanitarian disaster. [He] indicated the possible … solutions that will ensure the required supply of water, food and medicine, increasing the amount of trucks entering with the necessary inspections, the construction of field hospitals in the south of the Gaza Strip,” he said.
Responding to the allegation that Netanyahu had used biblical rhetoric referring to the Amalekites to incite troops to war, he said South Africa had not understood the meaning of Amalek and Judaism.
Shaw cited Netanyahu as saying in his statement to the IDF: “We are now entering the second phase of the war, which its objectives are clear: destruction of the military and governmental capabilities of Hamas and the return of the hostages back home … Remember what Amalek has done to you … We remember and are fighting … There is one prior mission to defeat the murderous enemy and secure our existence in our land … The IDF does everything to avoid harming the uninvolved.”
Shaw said there was no case of genocide on Israel’s account.
“There is no genocidal intent here. This is no genocide. South Africa tells us only half the story.”
Member of the Bar of England and Wales and a representative of Israel’s legal team, Christopher Staker, told the court that the request for provisional measures against Israel should be rejected.
“Provisional measures would prevent Israel from doing anything … These would require immediate suspension of Israel’s military operations in Gaza. This request is frankly astonishing,” Staker said.
“A request is made by a state not party to an ongoing conflict for provisional measures, requiring unilateral suspension of military operations by one party to the conflict only, leaving the other party free to continue attacks, which it has a stated intention to do,” Staker argued.
The court is expected to deliver its verdict within the coming weeks.