South Africa tells ICJ genocide case Israel 'crossed the line'

Judges in The Hague urged to halt Gaza offensive described as not a credible anti-Hamas manhunt

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South Africa pleaded with judges in The Hague on Thursday to stop the war in Gaza, accusing Israel of a genocidal campaign against Palestinians that goes far beyond an anti-Hamas manhunt.

Judges heard South Africa's appeal for an emergency order telling Israel to cease fire as the Middle East conflict entered the halls of the International Court of Justice.

South Africa presented its case in a three-hour session on Thursday before Israel takes the floor in reply on Friday.

With a mixture of legal arguments and emotive pleas, South Africa accused Israel of committing genocide with indiscriminate attacks that make life in Gaza impossible and "cannot credibly be argued to be a manhunt for members of Hamas".

The court was told to step in urgently to prevent the humanitarian cost from escalating daily, in what South Africa, alluding to its own history, called an extension of 75 years of apartheid against Palestinians. Israel rejects the allegations and is vowing to continue its offensive.

ICJ hearing: South Africa opens Gaza 'genocide' case against Israel

ICJ hearing: South Africa opens Gaza 'genocide' case against Israel

Leading South Africa's delegation, Justice Minister Ronald Lamola said Israel's invasion went beyond a legitimate response to Hamas's attack on October 7.

"No armed attacks on a state's territory – no matter how serious, even an attack involving atrocity crimes – can provide a justification for or defence" for acts of genocide, Mr Lamola said.

"Israel's response to the October 7, 2023 attack has crossed this line."

In testimony by several lawyers and officials, South Africa told the court:

· Israel is committing genocide by killing and wounding Palestinians and denying food, shelter and health care so that Gaza “cannot sustain life

· The offensive has laid waste to Gaza “beyond any acceptable legal, let alone humane, justification"

· Israel’s order for Palestinians to move south in the first phase of the Gaza offensive was “itself genocidal”

· Aggressive remarks by Israel’s political and military leadership show it has a genocidal intent towards Palestinians

· Israel's alleged genocide is illegal under international law regardless of what Hamas did on October 7

· Actions by Israel since October 7 sit in a broader context of a “75-year apartheid” against Palestinians and a “16-year siege” of Gaza

· There is an "urgent need" for the court to step in because deaths and injuries are occurring every day and Israel's actions make effective humanitarian aid impossible

· The case is a matter for the ICJ because South Africa is in dispute with Israel on whether a genocide is occurring and an “objective determination of the facts” is required.

Speaking on the court steps, Palestinian Assistant Foreign Minister Ammar Hijazi urged other countries to support South Africa's case, which he said included "damning evidence".

"This is a pivotal moment for the international system," he said as he accused Israel of "destroying the foundations of life in Gaza".

Israel's Foreign Ministry said the court had heard "false and baseless claims" and described the South African team as "Hamas's representatives in the court".

It said South Africa was "ignoring the fact that Hamas uses the civilian population in Gaza as human shields and operates from within hospitals, schools, UN shelters, mosques and churches.

Mr Lamola rejected Israel's broadside, saying South Africa was "not presenting any case on behalf of Hamas". He said any finding against Israel could pave the way for military personnel being prosecuted individually.

What is South Africa's case?

South African lawyer Adila Hassim said Israel’s campaign amounted to “nothing short of destruction of Palestinian life” as she laid out the specific allegations of genocide.

Killing and wounding of Palestinians has been accompanied by displacement and a deliberate campaign to “impose conditions on Gaza that cannot sustain life”, Ms Hassim told ICJ judges.

Referring to Israel’s command for Palestinians to move south in the first phase of its ground invasion, she said: “The order itself was genocidal.”

A lack of aid leading to hunger, the denial of adequate shelter and sanitation, and attacks on Gaza's healthcare system are also part of a genocidal campaign, the court heard.

Seeking to convince the court that Israel is intent on genocide, South African lawyer Tembeka Ngcukaitobi quoted a series of statements by Israeli political and military leaders in which they allegedly “declared their genocidal intent”.

Among the words cited were a remark by Defence Minister Yoav Gallant that Israel was “fighting human animals” and references by Prime Minister Benjamin Netanyahu to a violent passage of scripture.

Israel’s actions are “rooted in the belief that in fact the enemy is not just the military wing of Hamas or indeed Hamas generally, but is embedded in the fabric of Palestinian life in Gaza”, Mr Ngcukaitobi said.

An 84-page filing by South Africa accuses Israel of “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction”.

Vusimuzi Madonsela, South Africa's ambassador in the Netherlands, said Israel was "subjecting the Palestinian people to apartheid", an allegation drawing on South Africa's history that Israel rejects.

The future for people in Gaza "depends on the decision this court will make on this matter", he said.

Some pro-Palestinian protesters gathered outside the palace gates with chants of "free Palestine" and "ceasefire now" audible from inside.

Irish lawyer Blinne Ni Ghralaigh, representing South Africa, described human suffering taking place “each day” in Gaza as she urged the court to step in immediately.

Every new day of conflict would put hundreds at risk of death, children having legs amputated, mass graves being dug and cemeteries coming under bombardment, she told the court.

Deaths caused by the war’s humanitarian impact “risk significantly outstripping deaths from bombings”, she said, with judges asked to make an order to prevent “imminent, irreparable prejudice to the rights at issue in this case”.

Law professor Max du Plessis said South Africa had chosen not to bring graphic images and videos of the war’s effects in Gaza before the court, basing its case on a “foundation of clear legal rights” rather than “parading pictures to shock”.

Some less distressing images were displayed to the court, including footage of people in Gaza scrambling to get hold of humanitarian aid.

British barrister Vaughan Lowe, also representing South Africa, said Israel's "grip on Gaza" meant its campaign could not be considered self-defence.

"Months of continuous bombing, flattening entire residential blocks and cutting off food, water, electricity and communications to an entire population cannot credibly be argued to be a manhunt for members of Hamas," he said.

"Nothing can ever justify genocide, no matter what some individuals within the group of Palestinians in Gaza may have done.”

What is the International Court of Justice?

The ICJ, also known as the World Court, is the UN’s leading judicial body and hears disputes between member states. It is separate from the International Criminal Court, which is also seated in The Hague and can charge people and groups with crimes against humanity.

A 17-judge panel led by US lawyer Joan Donoghue and Russia's Kirill Gevorgian is hearing the arguments in the Peace Palace in the Dutch administrative capital.

Two ad hoc judges were sworn in before proceedings began, with each side able to nominate someone for the bench if there is no judge of that nationality already.

Israel chose its former supreme court president Aharon Barak, while South Africa's former deputy chief justice Dikgang Moseneke is also hearing the case.

South Africa has a delegation of three dozen in The Hague comprising barristers, government officials, advisers and ambassador Mr Madonsela.

Among its senior lawyers is John Dugard, a former UN rapporteur on human rights in the occupied Palestinian territories and an advocate of South Africa's high court.

Israel has instructed Malcolm Shaw, a British barrister and a veteran of international court proceedings, as one of its representatives. Its delegation includes deputy attorney general Gilad Noam.

On the eve of the hearing, Israel's Prime Minister Benjamin Netanyahu sought to calm international unease by saying Israel had "no intention of permanently occupying Gaza or displacing its civilian population".

"Israel is fighting Hamas terrorists, not the Palestinian population, and we are doing so in full compliance with international law," he said.

While it could take years for judges to decide whether Israel has committed genocide, this week's hearings hinge on whether the court will order "provisional measures".

South Africa wants an order that Israel "shall immediately suspend its military operations" and refrain from displacing Palestinian people or depriving them of food, water and medicine.

The filing to the ICJ compares Israel's actions towards Palestinians with the former apartheid regime in South Africa, an allegation rejected by Israel.

More than 23,300 Palestinians have been reported killed in Gaza since the war began in October. At least seven people were killed and 25 wounded in another Israeli strike overnight on a home in Khan Younis, southern Gaza, Palestinian media reported.

Although the ICJ cannot force Israel to comply, an order from The Hague could increase international pressure on Israel to change course.

A briefing by Israeli diplomats heard a legally binding decision would "complicate [Israel's] war effort in Gaza". The Israeli government "would not want allegations on the record accusing it of genocide”, said law professor Yuval Shany.

The 1948 Genocide Convention, drawn up in the aftermath of the Holocaust, defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".

Israel is expected to argue it is acting in self defence after it was attacked by Hamas on October 7. It may also challenge South Africa's right to file a case related to Gaza.

The court previously called on Myanmar to halt alleged genocide against Rohingya Muslims, after an application by Gambia. In 2022 it unsuccessfully called on Russia to suspend its invasion of Ukraine.

Pro-Palestinian lawyers hope the Myanmar precedent will work in South Africa's favour in this week's case.

Colombia and Brazil expressed their support for South Africa late on Wednesday. The US sides with Israel in opposing the case.

Updated: January 11, 2024, 3:08 PM