South Africa accused Israel of committing genocide against Palestinians in the International Court of Justice (ICJ) last Thursday in a historic moment that has people across the global south holding their breath. On Friday, Israel issued its defence to the horrific (and comprehensive) list of allegations South Africa presented. Here’s an overview of the state’s arguments, and what it all means for the ICJ’s ultimate decision.
In case you missed it, South Africa argued that Israel has breached Article II of the Genocide Convention in its treatment of Palestinians in Gaza, which defines which acts actually amount to genocide.
Israel’s attacks on Palestine have now become the deadliest conflict in the 21st Century, with Oxfam calculating that on average 250 Palestinians are being killed each day. Despite mass support, there is yet to be a ceasefire.
South Africa argued the suffering Israel inflicted upon Gaza could not be determined to be “self-defence” given what actually constitutes self defence under international law, and especially given the scale of Israel’s response to the Hamas attack on October 7. More than 23,000 people killed and more than 60,000 wounded in just three months. Recent reports revealed that 1 in 100 people in Gaza have been killed.
South Africa’s lawyers also read out quotes by Israeli officials, soldiers and Prime Minister Benjamin Netanyahu to argue that there was genocidal intent amongst the government and military, which is often the hardest part to prove in these cases.
How has Israel responded to South Africa’s genocide allegations?
Israel’s key argument against South Africa’s allegations is that the evidence it presented was “grossly distorted” and “curated” to discredit Israel, and argued the court case should be thrown out on a technicality.
It’s defence can be broken down into four main elements: the first was that its ministers’ comments about “destroying” Gaza did not impact its war effort and therefore weren’t “relevant”. The second was that its killings of Palestinians were done in self-defence, and that any claims of genocide should be directed at Hamas. The third was one of case-law regarding the Bosnian genocide and the ICJ’s decision not to grant provisional measures at the time, and the fourth was about the case potentially not meeting the ICJ’s own jurisdiction requirements. We’ll go into them in more detail below.
1. Genocidal intent rebuttal
Israel stringently rejected claims of genocide, arguing that its only intention was to defeat Hamas, not wipe out Palestinians.
Israel’s lawyers cited the fact that the IDF sometimes warned Gazans of incoming airstrikes as proof the state was not trying to commit genocide. It said the same of the fact that it eventually let in “70” food trucks, with the number increasing to “106 trucks in the past two weeks.” Before October 7, Gaza was receiving about 500 food trucks a day, according to the UN.
Last week, South Africa’s legal team quoted multiple Israeli ministers (including Netanyahu and IDF soldiers) who had made comments about wanting to “destroy” Gaza, which the lawyers said helped demonstrate genocidal intent.
British lawyer Malcolm Shaw told the court these were “random quotes” which were “not in conformity with government policy” and were “misleading at best”.
In terms of mass civilian killings, the Israeli legal team stated that the IDF did not target hospitals and other places where civilians were killed en masse. Instead, it claimed IDF soldiers tried their best to “minimise” civilian casualties but alleged Hamas used Palestinians as human shields.
It’s worth pointing out that even if Hamas did hide among civilians, killing those civilians to get to Hamas, enforcing a blockade, bombing hospitals and blowing up civilians who have failed to follow evacuation advice is still against international law.
“Were it the case, which we deny, that Israeli forces have transgressed some of the rules of conflict, then the matter will be tackled at the appropriate time by Israel’s robust and independent legal system,” Shaw said.
Israel’s lawyers also argued that it was Hamas who showed genocidal intent on October 7 (Hamas is not the group on trial here, and also not subject to the ICJ’s jurisdiction given it is not a member-state). We’ll get more into this in the following section.
2. The right to self-defence rebuttal
South Africa argued in its case that an occupying force — which Israel is, according to the UN — cannot use the argument of self-defence to justify maintaining that occupation, as per international law.
However, Israel responded that Hamas’ attacks on October 7 were enough to justify its three-month long bombing campaign in Gaza. It argued its attacks on Gaza are out of self-defence, and that if it does not continue with its military campaign, its own people will be victims of a “genocidal campaign” by Hamas.
Tal Becker — an Australian lawyer who immigrated to Israel — argued that, contrary to South Africa’s accusation that Israel violated the Genocide Convention, it was actually attempting to fulfil it by punishing Gaza for the October 7 attacks and the captives taken from it.
“It is in response to the slaughter of Oct. 7, which Hamas openly vows to repeat, and to the ongoing attacks against it from Gaza, that Israel has the inherent right to take all legitimate measures to defend its citizens and secure the release of the hostages,” he said.
Becker argued that “never again” is one of “the highest moral obligations” for Israel and accused South Africa of trying to prevent it from standing up for Israeli citizens. He then went so far as to claim South Africa operated “in close relations with Hamas”, and that this undermined any arguments South Africa made against Israel.
South Africa, for its part, at no point suggested Israel could not defend itself from Hamas — it’s arguments were mainly predicated on the collective punishment of Palestinian civilians for Hamas’ actions, and the ethnic cleansing of the land they live on. In the more than three months of Israel’s retaliation, the IDF has killed more than 23,000 Palestinians — almost 20 times more people than were killed on October 7.
3. Case law and urgency
One of South Africa’s key arguments for provisional measures was urgency: the number of Palestinians dying at the hands of Israel is unprecedented, with Oxfam reporting that it is the highest number of casualties per day in any international conflict in the 21st century.
However, lawyer Omri Senger claimed on Friday that there was no urgency to end the conflict, as South Africa claims, because “the scope and intensity of the hostilities has been decreasing”. There are more than 60,000 wounded people in Gaza, and only six functional ambulances in the Gaza strip, according to the Gaza Health Ministry.
Israeli lawyer Christopher Staker compared South Africa’s case to the 2007 case concerning the Bosnian genocide, which saw an estimated 100,000 people killed between 1992 and 1995. In that case, the ISJ indicted 161 people on charges of genocide, crimes against humanity, and war crimes.
Stake argued that the ICJ chose not to grant the provisional measures Bosnia asked for in court in the 2007 case — and therefore should not grant South Africa its provisional measures, either.
4. Lack of jurisdiction
Shaw argued that South Africa had failed to communicate with Israel before taking it to international court, which is a requirement under the ICJ’s rules.
While South Africa did notify Israel that it found that the country was committing genocide and would be taking it to court, Shaw argued that it only gave a few days notice for Israel to respond, and wasn’t willing to have a “dialogue” with the state about its issues and instead refused to discuss the matter. He argued that this should get the case thrown out of court, because if South Africa didn’t meet the ICJ’s requirements for a case, it holds no jurisdiction.
What happens next?
The ICJ’s rulings are binding (meaning they can’t be appealed by member states) but it can’t actually enforce its rulings. This is the responsibility of the UN Security Council, usually by way of sanctions, but it can choose not to act.
The ICJ said it would announce its decision soon, but this could take weeks and no date has been set. According to experts, Israel made convincing arguments about the jurisdiction of the case, whereas South Africa has the most compelling arguments around historical context, facts and moral responsibilities.
“South Africa has already won by getting the hearing, and Israel knows it,” said American human rights lawyer Francis Boyle, who represented Bosnia at the ICJ and won his case against Yugoslavia, per CBS News.
Al Jazeera’s senior political analyst Marwan Bishara said “Israel lost the moral, factual, historical and humanitarian argument because of the way the situation has unravelled in Gaza – with the sheer death and industrial killing there.” However, he said Israel’s strong “jurisdictional and procedural arguments may have made a dent” in South Africa’s case.
Even if South Africa’s case wins and the ICJ orders Israel to withdraw its military, Netanyahu has made it clear Israel will not comply.
“We will restore security to both the south and the north. No one will stop us — not The Hague, not the axis of evil and not anyone else,” he said on Saturday.
“The hypocritical onslaught at The Hague against the state of the Jews that arose from the ashes of the Holocaust . . . is a moral low point in the history of nations.”
If Israel is ordered to cease its military campaign but chooses to continue its bombings of Gaza, it would be up to the UN Security Council to enforce the order.
However, given the United States’ veto power and ongoing support of Israel, it doesn’t seem likely a ruling in South Africa’s favour would do much to prevent the most important thing: ending the slaughter of innocent people.
Image: Lior Mizrahi/Getty Images
