Israel tells ICJ genocide hearing 'any state would do the same' in Gaza

Israel defends its actions in besiege enclave against latest genocide accusations in The Hague

Principal Deputy Legal Adviser of the Ministry of Foreign Affairs of Israel Tamar Kaplan Tourgman, left, and Legal Adviser at Israeli Embassy to the Netherlands Avgail Frisch Ben Avraham at the International Court of Justice (ICJ) in The Hague, on May 17.
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Israel on Friday defended its attack on the south of Gaza against claims of genocide, telling the UN’s highest court that any state would do the same.

Denying a claim by South Africa that Rafah is the “endgame” of Gaza’s destruction, Israel said it entered the city to bring down a “military stronghold for Hamas”.

It told the International Court of Justice it wishes no harm to Palestinian civilians and that Hamas militants were responsible for the war's "suffering and pain".

In a 90-minute pleading, it said an order sought by South Africa for Israel to withdraw from Gaza would be an "extreme measure" denying it the right to self-defence.

"This war, like all wars, is tragic and terrible for Israelis and Palestinians and it has exacted a terrible human price. But it is not genocide," Israeli deputy attorney general Gilad Noam told judges. “Any state put in Israel’s difficult position would do the same."

On another day of legal arguments on the war:

· Israel said it "does not wish harm" to Palestinian civilians and the defeat of Hamas would mean they are "liberated" from the militants' rule

· It told the court its operations in Rafah were "specific, limited and localised" and aimed at Hamas networks posing a "significant threat" to Israel

· Judges were told that, contrary to South Africa's claims that Israel is withholding aid, it is making "remarkable efforts" to help civilians in Gaza

· Lawyers for Israel warned the court not to let South Africa and Hamas use international genocide law as a "sword rather than a shield"

· There was a disturbance in the Great Hall of Justice as someone in the courtroom shouted "liars" during Israel's closing argument.

Emergency ruling

The 17-member court headed by Lebanon's Nawaf Salam will now consider whether to grant South Africa's request for an interim order, a decision that typically takes a few weeks.

South Africa is seeking an explicit order for Israel to leave Gaza after a previous judgment in January gave more general instructions to prevent genocide.

It says it is acting in the name of Palestinians who have no independent representation at the UN, while Israel accuses South Africa of pro-Hamas bias.

Complaining of the short notice at which Thursday and Friday's hearings were called, Israel did not use all of its allotted two hours on Friday, with only two lawyers taking the floor.

Israel devoted part of its time to painting Rafah – often described as the "last refuge" of Palestinian civilians – as a military stronghold from which Hamas threatens Israel.

Lawyers gave documents to the court purporting to show rocket launch sites in Rafah and tunnel shafts that could be used to smuggle hostages or militants out of Gaza.

They said 278 rockets had been launched from Gaza in the past two weeks alone and hostages remained in captivity after Hamas's October 7 attack on Israel.

Mr Noam said Israel's moves in the south were not a "large-scale assault on Rafah but rather specific, limited and localised operations".

"Only by bringing down Hamas’s military stronghold in Rafah will Palestinians be liberated from the clench grip of the murderous terrorist regime and the road to peace and prosperity may finally be paved," he said.

Another of Israel's lawyers, Tamar Kaplan Tourgeman, said Hamas tactics were to blame for the suffering caused by the "tragic" conflict.

She said South Africa’s allegations of genocide fail to mention violence, hostage-taking and continuing rocket fire by Gaza’s ruling militants.

“We have hardly heard the word Hamas [from South Africa], even though it is Hamas that has brought about all the suffering and pain that we are witnessing,” she said.

South Africa neglected to mention that Israel is doing a “great deal” to expand aid routes, she said. Judges were told a Hamas attack on the Kerem Shalom border crossing was to blame for its recent closure.

"Israel continues to take extraordinary measures in order to minimise harm to Palestinian civilians in Gaza," Ms Tourgeman said.

'Sword not shield'

Israel also spent significant time arguing an order to call off its offensive in Gaza would be an abuse of the International Court of Justice.

It said the court should not be dragged down a "dangerous path" into the "micromanagement" of what Israel portrays as an armed conflict like any other.

Ordering a withdrawal would "turn the genocide convention into a sword rather than a shield", Mr Noam said.

It would also allow Hamas to reconstitute its forces, deny hostages hope of rescue and "destine the Palestinians in Gaza to perpetual war", the bench was told.

Ms Tourgeman accused South Africa of trying to "obtain military advantage for its ally" and said the order it seeks would "legitimise, protect and reward Hamas’s despicable method of warfare".

"It is one thing to require that Israel abide by its international legal obligations and protect civilians when exercising its inherent right to defend itself," she said. "But to deny Israel that inherent right is a different thing altogether. It is unthinkable."

'Endgame' claim

South Africa took the floor on Thursday to say it was returning to the ICJ because the war had entered a "new and horrific phase".

Having applied on May 10 for a ruling to halt Israel's operations in Rafah, it widened the request during Thursday's hearings to seek a withdrawal from all of Gaza.

British barrister Vaughan Lowe, representing South Africa, said the attack on Rafah was part of a wider goal of “wiping Gaza from the map”.

“It has become increasingly clear that Israel’s actions in Rafah are part of the endgame in which Gaza is utterly destroyed as an area capable of human habitation,” he said.

“It was Rafah that brought South Africa to the court, but it is all Palestinians … who need the protection from genocide that the court can order.”

South Africa said the previous rulings from the bench telling Israel to prevent genocide “have not succeeded” in protecting Palestinians in Gaza.

Only an order for a full retreat will “protect what is left of Palestinian life” in the enclave, South African lawyer Adila Hassim said.

Updated: May 18, 2024, 10:39 AM