Israel takes stand at ICJ to deny Gaza offensive is genocide

Adviser says action brought by South Africa to UN court at The Hague is a 'profoundly distorted factual and legal picture'

The National reports from the ICJ as Israel defends its actions in Gaza

The National reports from the ICJ as Israel defends its actions in Gaza
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Israel defended its Gaza offensive in a courtroom in The Hague on Friday, rejecting accusations that it is committing genocide against Palestinians.

In three hours of evidence at the at the International Court of Justice, lawyers blamed the tactics of Hamas fighters for the mounting humanitarian crisis in Gaza and said Israel was doing its best to limit civilian harm.

They argued a court order sought by South Africa to stop the bombardment of the enclave would strip Israel of the right to defend itself after it was attacked by Hamas on October 7.

Drawing on its foundation in the wake of the Holocaust, Israel accused South Africa of distorting the conflict in “a concerted and cynical effort to pervert the meaning of the term genocide itself”.

Judges at the ICJ – the UN's highest court – are expected to decide within weeks whether to grant the emergency ruling sought by South Africa to protect Palestinians from harm.

Israel's legal team gave evidence at the ICJ in reply to allegations set out by South Africa a day earlier.

Speaking for Israel, legal adviser Tal Becker said civilian suffering in Gaza was “tragic and heartbreaking” but South Africa's genocide claim gave a “profoundly distorted factual and legal picture”.

The court heard Hamas fighters were to blame for Gaza's humanitarian plight by booby-trapping buildings, commandeering aid convoys and making civilian sites “legitimate targets” by using them for military purposes.

In South Africa's account it is “almost as if there is no intensive armed conflict taking place”, but “only an Israeli assault on Gaza”, Mr Becker said.

With families of hostages watching on, Israel told the court:

  • Israel is “mitigating civilian harm” by giving warning of fighting, allowing aid to enter Gaza and “restricting its targeting practices” to military objectives
  • Damage to health care is a direct result of Hamas “turning hospitals into terrorist compounds”, while civilians are put at risk by misfired militant rockets
  • Halting the Gaza offensive would “thwart Israel’s inherent right to defend itself”, advantage Hamas and make genocide law an “aggressor’s charter”
  • Hamas is the party with a “genocidal agenda”, while provocative Israeli comments cited to the court were “clearly rhetorical” and did not amount to policy
  • The meaning of genocide would be “diluted and lost” if it becomes the “common currency” of describing armed conflict
  • The Hague has no jurisdiction because there is no formal dispute between South Africa and Israel beyond a “flurry of notes”.

Speaking on the court steps, South Africa's Justice Minister Ronald Lamola said Israel's case was not backed by facts on the ground and said lawyers had "failed to disprove South Africa's compelling case".

He denied that South Africa had downplayed the events of October 7 but said the nature of Israel's response was not justified "no matter how great the threat might be".

Palestinian Assistant Foreign Minister Ammar Hijazi said Israel had repeated "already-debunked lies" and "not been able to provide any solid arguments".

Jordan said it sided with South Africa and would potentially address the court at a later stage. Germany meanwhile said it backed Israel in rejecting the allegation of genocide.

What is Israel's case?

Mr Becker said South Africa's bid to halt the fighting was asking the court to “render Israel defenceless” against Hamas, which he said was the side with an “actual genocidal agenda”.

“Israel is in a war of defence against Hamas, not against the Palestinian people,” he said.

Referring to laws on genocide drawn up after the Holocaust, he told the court Israel was “singularly aware of why the Genocide Convention, which has been invoked in these proceedings, was adopted”.

Christopher Staker, a British barrister, said an order to Israel to cease fire would give an unfair advantage to Hamas and prevent the attempted rescue of hostages.

“A ceasefire command to Israel “would not put an end to the conflict, but only to military operations by one party to the conflict”, Mr Staker said.

Setting out Israel’s version of “the facts on the ground”, government lawyer Galit Raguan said Hamas’s urban warfare tactics were to blame for the severe humanitarian situation in Gaza.

She told the court that many civilian deaths were “directly caused by Hamas” because of booby-trapped homes and misfired rockets that land within Gaza. Judges were shown an image of weaponry apparently being stored in a child’s bedroom as Ms Raguan told the court that Hamas “uses ostensibly civilian structures for military purposes”, including mosques, hospitals and shelters.

Civilian deaths caused by Israeli forces may be the “unintended but lawful result of attacks on lawful military objectives”, she said.

Israel's attempts to mitigate civilian harm mean intent to commit genocide is “not even a plausible inference”, Ms Raguan argued – a key test for the court in its initial judgment.

A second British barrister, Malcolm Shaw, defended Israel's actions by saying its use of leaflets and phone calls to warn Palestinians of impending strikes show “the precise opposite of any genocidal intent”.

He said any violations by Israeli troops would be dealt with by the country's “robust and independent legal system”.

“Armed conflict, even when fully justified and conducted lawfully, is brutal and costs lives,” he said, but "there is no genocidal intent here. There is no genocide here."

Israel is also challenging South Africa's right to bring the claim, after describing its accusers in The Hague as “Hamas's representatives in the court”.

Closing Israel’s defence, deputy attorney general Gilad Noam asked judges to strike out the case altogether.

Court president Joan Donoghue said a decision on whether to order a halt to Israel's offensive would be given “as soon as possible”. It has typically taken weeks in previous cases.

The 17 judges hearing the case have no power to enforce any such ruling but it could pile international pressure on Israel to change course.

What is South Africa's case?

South Africa on Thursday told the court Israel's bombardment of Gaza was creating conditions that “cannot sustain life”, forcing Palestinians to flee the territory.

It said Israel's actions had laid waste to Gaza “beyond any acceptable legal, let alone humane, justification” and crossed the line of legitimate self-defence.

Motivated in part by its own 20th-century history, South Africa accused Israel of a “75-year apartheid” against Palestinians and a 16-year siege of Gaza.

It said there was 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 Israeli government dismissed the claims as “false and baseless” and said its military campaign to “eliminate Hamas” would continue.

Israel's attack on Gaza continued overnight, with at least five people reported injured in a bombing west of Deir Al Balah.

The war's wider impact meanwhile intensified as the US and UK launched air strikes targeting Yemen's Houthi rebels, who have attacked Red Sea shipping.

A decision from the ICJ on the emergency ruling by South Africa is expected within weeks, while the underlying genocide issue could take years to resolve.

Israel's legal team includes the British barristers Mr Shaw, a veteran of cases at The Hague, and Mr Staker, a lawyer on the criminal tribunal for the former Yugoslavia.

Genocide is defined, under the convention drawn up after the Holocaust, as acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

Proving intent is a difficult part of the case, with South Africa drawing on provocative statements by senior Israeli ministers and military commanders.

The Israeli delegation also includes deputy attorney general Gilad Noam, Foreign Ministry legal adviser Mr Becker and ambassador in the Netherlands Modi Ephraim.

Updated: January 12, 2024, 3:00 PM