The International Court of Justice on Friday heard Israel's defense against South Africa's allegations that it committed genocide in Gaza in the second day of hearings broadcast live for the world to see.
Since October 7, nearly 24,000 people have been killed in the enclave, including nearly 10,000 children. Thousands more lie under rubble and are presumed dead.
South Africa claims Israel violated the 1948 Genocide Convention in its war on Gaza. On Thursday, the legal team acting for South Africa called on the court to take emergency measures to stop ongoing airstrikes and ground attacks on the strip.
This request for interim measures was at the heart of this week's proceedings.
In their counter-submission on Friday, Israel's representatives, led by British lawyer and academic Malcolm Shaw KC, argued that South Africa's application had “distorted” and “de-contextualized” Tel Aviv's military actions in Gaza, and that it had done so by Accusing Israel of the Pretoria genocide “diluted” the significance of the crime.
Here are Israel's main counterarguments and a look at whether they hold up:
Right to self-defense
Israel argued that Hamas' attack on army outposts and surrounding villages in southern Israel on October 7 – as well as the capture of hundreds of prisoners – triggered the Gaza war and that Israel had the right to defend itself under international law.
Tal Becker, a lawyer for the Israeli team, told the court that the genocide convention was drafted after the mass killing of Jews in the Holocaust and that the phrase “never again” was one of Israel's “highest moral obligations.”
By asking for an injunction against the Israeli invasion, Becker said, South Africa is trying to deprive Israel of the opportunity to fulfill its obligations to the prisoners it holds and the Israelis displaced from communities near the Gaza border after the October 7 attacks.
But Neil Sammonds, senior Palestine campaigner at human rights group War on Want, told Al Jazeera that Israel's arguments were “weak”.
“Of course, both South Africa and human rights organizations like us condemn the killing of civilians and the taking of hostages [by Hamas]said Sammonds. “But that in no way justifies Israel’s reaction. As an occupying power, Israel has no right to self-defense – this argument is unsound.”
The International Court of Justice ruled in 2003 that an occupying power cannot claim self-defense in a case involving Israel's construction of a separation wall in the occupied West Bank. Since its withdrawal from Gaza in 2006, Israel no longer considers itself an occupying power. However, the United Nations and various human rights organizations have rejected this claim, while international legal scholars are divided over whether Gaza was “occupied” under international law.
The Israeli legal team said South Africa's accusations that Tel Aviv had an inherent intention to “destroy” the Palestinian people were based on “random allegations.”
However, Akshaya Kumar, director of crisis intervention and special projects at Human Rights Watch, told Al Jazeera that passing off senior officials' comments as “random assertions” was not plausible.
“Some of the most telling statements have been made by the President, the Prime Minister, the Defense Minister and other key decision makers,” Kumar said.
In his presentation, Shaw said Prime Minister Benjamin Netanyahu's statements and the “Amalek” reference, which the South African team specifically cited on Thursday, had been taken out of context.
In the statement quoted, Netanyahu called on Israeli troops preparing to enter Gaza on October 28 to “remember what Amalek did to you,” referring to a biblical call to a specific group to wipe out people.
However, Shaw said that Netanyahu completed the statement with the words “that.” [Israeli military] is the most moral army… and does everything to prevent the killing of innocent people.”
However, in available excerpts of the recording, Netanyahu does not say those words after referring to the Bible story. He said: “Our brave troops and fighters now in Gaza… and other regions of Israel join this chain of Jewish heroes, a chain that began 3,000 years ago from Joshua ben Nun to the heroes of 1948… They have a Most High.” The goal is to completely defeat the murderous enemy and secure our existence in this country.”
In response to allegations of actual acts of genocide, including mass and indiscriminate killings of civilians, Israeli lawyers claimed that Hamas was using civilians as human shields and that Israeli troops were trying to “minimize” harm to civilians.
However, there were cases in which civilians were shot while they were apparently unarmed and attempting to evacuate. In a recent verified video shared widely on social media, a Palestinian grandmother was seen attempting to pass through a route out of the northern Gaza Strip declared safe by Israeli forces while at holding the hands of her five-year-old grandson, who was waving a white flag. She was shot by a sniper.
In December, Israel also killed three of its own citizens who had apparently escaped Hamas captivity. They also waved white flags and wrote SOS messages with leftover food. Israel's reaction at the time was that its soldiers were acting under great pressure and had made mistakes.
Israel's lawyers also said Friday that any concerns that their troops had “violated” the rules of war would be “dispelled by Israel's robust legal system.” But Kumar said HRW had previously uncovered evidence that Israel operates a “deeply flawed and unequal justice system.”
“Authorities have consistently failed to hold their forces accountable when security forces kill Palestinians, including children, in circumstances where the use of lethal force was not justified under international standards,” Kumar said.
Lack of jurisdiction
Shaw said Pretoria failed to communicate with Tel Aviv about the case before filing the application with the court, as required by its own court rules.
The Israeli representative claimed that South Africa had given him just days to respond to a notice that it was committing genocide. He said Tel Aviv was ready for “dialogue” but South African representatives initially rejected a written letter because of a holiday and later replied that there was “no point” in having a discussion. This, Shaw said, raises the question of whether the case should have gone to trial at all, meaning the court may lack decision-making authority.
In order to bring a case to the International Court of Justice, it must be proven that there was a previous “dispute” between the two parties and that both need to resort to the International Court of Justice to properly interpret the Genocide Convention. To justify the lawsuit in court, South Africa may have to prove that it notified Israel in advance that it believed Tel Aviv was committing genocide in Gaza and that there was a “dispute” or disagreement on the issue between the two sides gave everything.
South Africa has not responded to claims that it rejects such dialogue.
Israel's representative said claims that it was blocking food, water, fuel and other essential supplies from Gaza were “inaccurate,” adding that “70 trucks” of food aid were allowed into Gaza before the war and that number increased “There has been an increase of 106 trucks in the last two weeks”.
According to the United Nations, before the war, 500 aid trucks entered the Gaza Strip every day, after which Israel banned all imports of aid. During a brief lull in fighting agreed between Israel and Hamas, about 200 trucks were allowed to enter daily, but outside the ceasefire period, fewer than 100 trucks were allowed to enter.
Galit Raguan, acting director of the International Justice Department at Israel's Justice Ministry, said in her presentation that Hamas is confiscating aid supplies for its fighters. Israel, Galit said, did not target hospitals or help evacuate patients. She said schools, U.N. warehouses and hospitals had been raided by Israeli forces because Hamas militants were in those locations, adding that Israel was warning the population of an impending bombing through phone calls and by dropping leaflets.
However, Palestinian journalists have repeatedly reported that the incessant bombardment of the Strip often occurs without warning and that journalists themselves are severely attacked. Several hospitals were bombed and were no longer functional.
War on Want's Sammonds pointed out that Israel did not begin its blockade of Gaza on October 7. “There has been an illegal blockade of the Gaza Strip for 16 years, which has already been viewed as collective punishment.” [before the war started]. The help that came in [since the war started] is just a tiny trickle compared to what is needed,” he said.
HRW's Kumar added: “In practice, Israeli forces are deliberately blocking the delivery of water, food and fuel, while deliberately obstructing humanitarian assistance, apparently destroying agricultural land and depriving civilians of vital items.” Human Rights Watch has found that Israel is using hunger as a weapon of war.”
Gilad Noam, Israel's deputy attorney general for international affairs, concluded Israel's arguments on Friday, saying the court should not order interim measures (to stop the attack on Gaza) because Hamas is considered a terrorist organization by Israel and accepts such measures Damage would result in harm to Israelis.
The ICJ said it would announce its decision soon, but did not provide specific dates. It is likely that the court will issue an opinion in the coming weeks, experts said.
It is difficult to predict which direction the court will develop. Al Jazeera senior political analyst Marwan Bishara said Israel had put forward strong “legal and procedural arguments”, referring to Israel's claims that South Africa did not give it enough time to respond before appealing to the Hague filed a lawsuit in court. He described this part of his argument as the one that “may have caused harm” in the case of South Africa.
But “Israel lost the moral, factual, historical and humanitarian argument because of the way the situation in Gaza developed – with the sheer death and industrial killing there,” Bishara said, adding that Israel's attempts to do so Convincing the court of his handling of the humanitarian situation there was not convincing.
Mike Becker, a professor of international law at Trinity College Dublin, said the court is in a difficult position: It may not want to order Israeli troops out of Gaza if it cannot issue a similar cease-and-desist order to Hamas. which is not a party to the Genocide Convention.
“South Africa has done enough to meet the requirements,” Becker said, alluding to Pretoria’s argument for an emergency stop order. “But the interim measures [the court will give] “It is possible that Israel will largely aim to honor the commitments it made today in relation to humanitarian assistance,” he said.