The Promise of Never Again
On January 12th, began Israel’s defence in the International Court of Justice (ICJ) in a case brought against it by South Africa, which accuses Israel of genocide against Gaza’s Palestinians and requests the court bring in a series of provisional measures in order to both halt Israel’s military operations, as well as stop the alleged genocide. Israel is accused of violating several articles of the Genocide Convention.
Israel’s 3 hour single round oral argument began with recalling the basis of which the Genocide Convention was created, that being the Holocaust. Israel’s starting lawyer, Tal Becker, said that the Holocaust is “seared” into the “collective” memory of Israeli’s. He further added that it is within the principles established by the Genocide Convention that Israel conducts its military operations in what they say is a lawful manner.
“For some, the promise of never again for all peoples is a slogan. For Israel, it is the highest moral obligation” -Tal Becker
While Israel’s defence took place over 3 hours, it can be summarized in a few main points. The main points of the Israeli argument will be listed below, and then explored later in this article.
- Israel maintains its right to self defence.
- South Africa’s case is one sided, and ignores both the October 7th attacks and the continued sufferings of the Israeli people.
- Asserts that South Africa is supporting Hamas, and is complicit with their actions.
- Provisional measures will only prevent Israel from operating, while Hamas will be permitted to rearm and continue operation in order to attack Israel.
- Infrastructure damage and civilian casualties in Gaza are primarily resultant of Hamas’ military tactics.
- Israel does everything within its power to mitigate civilian casualties.
- Quotations used by South Africa to evidence genocidal intent by government officials are out of context, and do not reflect governmental policy.
- Israel allows in large amounts of humanitarian aid
Israel’s defence took place one day after South Africa’s own single round oral argument, in which they presented their case against Israel.
As stated, South Africa has approached the ICJ requesting a series of ‘Provisional Measures’ in order to address Israel’s military operations in Gaza. The requested Provisional Measures are as follows:
- The State of Israel shall immediately suspend its military operations in and against Gaza
- The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organizations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to point (1) above.
- The Republic of South Africa and the State of Israel shall each, in accordance with their
obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.
- The State of Israel shall, in accordance with its obligations under the Convention on the
Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people as a group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to the members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group.
- The State of Israel shall, pursuant to point (4)(c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:
(a) the expulsion and forced displacement from their homes;
(b) the deprivation of:
(i) access to adequate food and water;
(ii) access to humanitarian assistance, including access to adequate fuel, shelter,
clothes, hygiene and sanitation;
(iii) medical supplies and assistance; and
(c) the destruction of Palestinian life in Gaza.
- The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals which may be directed, supported or otherwise influenced by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.
- The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.
- The State of Israel shall submit a report to the Court on all measures taken to give effect
to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.
- The State of Israel shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
Israel’s Right to Self Defence
Under international law, a state which suffers an attack has the right to defend itself. At the core of Israel’s argument in the ICJ was this right, enshrined both in the UN Charter as well as in customary International law. The present war began when Israel was attacked by Hamas, the Palestinian Islamic Jihad (PIJ), and several other smaller Palestinian militant groups. Israel’s lawyers insisted that the actions Israel is taking are in self defence, a claim they say is supported by several international entities.
When the war began, many nations around the world supported Israel’s right to self defence not only in the face of the attack which it suffered, but also in efforts to retrieve its hostages. However, as time has gone on, many of these states which expressed support for Israel’s right have grown hesitant as civilian casualties in Gaza mount, and the Israeli military offensive grows more and more severe.
South Africa’s arguments claim that Israel’s actions go beyond proportionate self defence, and do not follow the rules of war.
Israel’s lawyers insisted that “what Israel seeks by operating in Gaza is not to destroy a people, but to protect a people. It’s people”. They went on to state that Israel’s goals are in the best interests of both Gaza’s Palestinians and Israeli’s, and that Israel does not seek the permanent displacement of Gaza Palestinians, nor to permanently occupy the land, and rather that the two can live together, with Gaza posing no threat to Israel.
“A Sweeping Counter-Factual Description”
A primary point of Israel’s defence accused South Africa of providing a one sided story. While South Africa did condemn Hamas’ October 7th attack both in the initial case filing and during their oral argument yesterday, the arguments presented largely only explored actions undertaken by Israel. They accused South Africa of “acting as if Hamas does not exist”, and not applying to the context of their actions that they are fighting against an armed group within Gaza.
Similarly, they also accused South Africa of ignoring the efforts Israel has made in order to both allow for humanitarian aid to flow in, as well as efforts to mitigate civilian casualties.
Israel stated many of South Africa’s arguments were an attempt to “de-legitimize” the existence of Israel.
Furthermore, they accused South Africa of ignorance to the ongoing sufferings of the Israeli people, in particular a claimed 110,000 that have been displaced from settlements nearby to Gaza, a number of which have been evacuated due to consistent rocket fire from Gaza.
South African Support for Hamas
South Africa has stated they “reject with contempt” the accusations from Israel that South Africa supports and has close relations with Hamas. Israel even went as far to state that South Africa is “functioning as the legal arm” of Hamas, and is acting as their “representatives”.
Israel’s lawyers specifically mentioned an incident where former Hamas government minister Basem Naim travelled to South Africa as a part of a delegation to attend a 10 year anniversary memorial for former South African President and activist Nelson Mandela on December 5th, 2023.
South Africa hosted a wider delegation of Hamas officials in 2015, headed by at the time Hamas political bureau head Khaled Mashaal.
Opposition of Provisional Measures
The immediate goal of South Africa’s case is to enact the series of nine provisional measures which were listed above. While Israel’s lawyers individually rejected all nine measures, one of the primary issues they had was the very first provisional measure, that being that Israel should stop it’s military operations within Gaza.
Israel argued that the provisional measures sought to halt Israeli operations, but carries no measures to stop those by Hamas. In essence, they argued that if Israel stops their military operations not only will it mean Hamas will “get away with” the October 7th attack, but will also be able to rearm and once again launch another attack upon Israel.
They sourced a video interview with Hamas leadership, translated to English by Memri TV, which stated that Hamas would continue attacks against Israel, and that October 7th was just the beginning.
Hamas’ Military Tactics
Accompanied by several claimed pieces of evidence, Israel has attributed a significant portion of civilian casualties within Gaza to Hamas’ military tactics. Israel has long accused Hamas of using civilians as “human shields” by operating within civilian areas, which causes heightened civilian casualties when Israel responds to attacks from Hamas. This has been an issue since before the present war, as well as during.
While Israel claims Hamas operates out of many different civilian areas, a few named specifically are:
- UN Facilities
- In proximity to established safe zones
Hamas oftentimes denies the accusations that it operates within several of these facilities.
In particular, alleged operations from and basing in hospitals has been a very contentious issue.
Israeli attacks and raids upon the Al-Shifa hospital, Gaza’s largest hospital, drew international attention. Many international bodies condemned the attacks on and around the hospital, meanwhile Israel maintained the hospital was being used as a Hamas base.
Over the course of the war, the hospital had been used both as a medical treatment centre but also as a refuge for thousands of people seeking shelter from Israeli bombardments. In supporting its claims of the hospital being used as a Hamas base, Israel produced video evidence of weapons found on the premises during a raid of the hospital on November 15th. In the video, various weapons found were shown which included firearms, and various explosives.
However, BBC and CNN analyses of the video’s produced by the IDF concluded that weapons had been rearranged and even added prior to filming the video. Additionally, BBC claimed the video had been edited, despite IDF claims the video was unedited, and filmed in one take.
Additionally, Israel’s lawyers produced a photo of CCTV footage from the hospital, which appears to show a group of armed men escorting a hostage through the facility. Israel claimed the hostage was escorted to the tunnel network claimed to be beneath the hospital.
Hamas rejected this as evidence, saying they had publicly announced they were bringing a hostage to the hospital in order to receive medical treatment for injuries sustained during Israeli bombardment.
Expanding upon this, Israel also made note of infrastructure damage and casualties brought about by failed rocket launches (of which they claimed there were approximately 2,000 of) which landed within Gaza’s borders, as well as booby trapped houses/buildings.
They made specific note of the Al-Ahli Arab Hospital explosion, which Hamas attributed to an Israeli airstrike, and Israel attributed to a misfired rocket from Gaza militants. The explosion killed between 100-500 people. Various analyses have come to differing conclusions on the matter, however a majority of analyses have concluded it was likely resultant of a failed rocket launch. Regardless, proper analysis of the explosion site, which occurred in the parking lot of the hospital (which had been acting as a makeshift shelter), is not possible due to the ongoing war. As such, no cause for the explosion is definitive.
Israel claims that, while tragic, collateral civilian deaths caused during combat with Hamas in this manner are within the bounds of legality due to Hamas’ operation within civilian areas making them valid military targets.
Mitigation of Civilian Casualties
Israel listed a series of steps it says it has taken to mitigate civilian casualties. The extent of which, they argued proves a lack of genocidal intent. Their lawyers named several measures which Israel has taken to mitigate civilian casualties:
- Dropping leaflets
- Making phone calls to individuals
- Establishing safe-zones within Gaza
- Securing safe evacuation routes to said safe-zones
- Publishing online detailed evacuation maps
- Allowing Humanitarian groups and ambulances to operate
- Providing warning of impending attacks
Criticism has been given to several of these measures, which several international groups accuse Israel of not fulfilling.
One of these criticisms was directly addressed by Israel in their defence. On October 13th, 2023, just a few days after the war began, the IDF gave civilians in Northern Gaza a 24 hour timeline to evacuate to Southern Gaza, pending heightened IDF bombardments as they moved to carry out “significant operations”, which many believed to be the start of Israel’s ground invasion. This timeline passed, and while bombardments were frequent, the ground offensive did not start until October 27th. Israel’s lawyers stated the initial 24h timeline which was established at the time was false, and that rather the IDF gave three weeks for civilians in the north to evacuate to the south.
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South Africa brought up the 24h evacuation notice during their oral argument, hence why Israel referenced it in their defence.
While a significant amount of civilians evacuated to Southern Gaza during this time, there were several cases of reported Israeli bombardments on evacuation routes, prompting many to stay within the north.
During evacuation stages since Israel’s ground invasion, civilians have reported attacks by Israeli ground troops and bombardments on established evacuation routes.
Similarly, the IDF has reported suffering attacks from Hamas while moving to secure established civilian corridors.
A number of different humanitarian groups, including both the UN and the International Committee of the Red Cross (ICRC), have reported restriction by the IDF on their operations.
The UN has reported that Israel has not allowed them to replace vehicles they have lost over the course of the war, many of which were destroyed or heavily damaged in Northern Gaza.
One notable instance which proves contradictory to Israel’s statements was a November 3rd airstrike on an ambulance convoy which was mostly operated by the Palestine Red Crescent Society (PRCS). The airstrike killed 15 people according to the PRCS. Israel, which claimed the airstrike, stated that one of the ambulances was being used to transport Hamas personnel and weaponry, and maintained that those killed in the attack were Hamas militants. The Human Rights Watch (HRW), World Health Organization, and Washington Post all contradicted this statement, stating that there was no evidence of the Israeli claim. The HRW went as far to say the incident should be investigated as a possible war crime.
Israel, pending attacks, has established a special unit in order to facilitate measures they say attempts to mitigate civilian casualties. Regarding such, they have dropped hundreds of thousands of leaflets and made tens of thousands of phone calls to individuals warning of impending attacks.
Notably, Israel’s legal team raised doubts as to the Gazan Ministry of Health’s present fatality figure of 23,000. While the ministry is controlled by Hamas, both the Human Rights Watch and the WHO generally attribute their numbers to be reliable.
Within South Africa’s case is listed a series of public comments made by several senior Israeli officials which they claimed demonstrated genocidal intent. The comments listed include ones from top Israeli officials, notably Prime Minister Netanyahu, President Herzog, and Defence Minister Gallant.
Israel’s lawyers argued that several of these statements were not only “clearly rhetorical”, but were oftentimes made in the “immediate aftermath” of an event which “severely traumatized” Israel, and were made in anguish rather than with genocidal intent.
“Some of the comments to which South Africa refers are clearly rhetorical, made in the immediate aftermath of an event which severely traumatized Israel. But which cannot be seen as genocide, they express anguish” -Malcolm Shaw
While the Israeli lawyers stated that the situation does not mean the most inflammatory of the Israeli officials statements “can be ignored”, they were just a part of normal war-time rhetoric and do not demonstrate genocidal intent.
South Africa lists several quotes, however Israel’s lawyers addressed one specifically made by PM Netanyahu, regarding the quote of “remember what Amalek did to you”, which he said to Israeli troops prior to their entry to Gaza. Israel accused South Africa of decontextualizing the quote, which has its origins in the bible and was followed by a divine order to “blot out the name of Amalek”.
The statement “Remember what Amalek does to you” has its origins in Deutoronomy, the 5th book of the bible. The passages in question shall be read out below, with a minor translation difference to that referenced by the PM:
Deuteronomy 25:17 – “Remember what Amalek did to you on the way as you were coming out of Egypt,
18 – how he met you on the way and cut off your rear guard, all the stragglers at your rear, when you were tired and weary; and he did not fear God
19 – Therefore it shall be, when the Lord your God gives you rest from your enemies all around in the land the Lord your God is giving you to possess as an inheritance, you will blot out the name of Amalek from under heaven. You shall not forget.
Similarly, in 1Kingdoms/1Samuel, King Saul receives a divine order to destroy the nation of Amalek.
The quote, used by the PM, has been claimed by South Africa to show genocidal intent.
Entrance of Humanitarian Aid
During their arguments, Israel’s lawyers outlined a number of different measures they have taken to allow and supply humanitarian aid into Gaza. These measures are often facilitated by COGAT, the Coordination of Government Activities in the Territories, an Israeli government agency.
Recently COGAT has taken measures to expand the amount of aid it is able to facilitate the transfer of into Gaza, as it has to undergo hefty security checks prior to entry, in order to ensure no weapons are smuggled in.
? 136 trucks carrying food, water, medical supplies, and shelter equipment were inspected and transferred to the Gaza Strip today (Jan. 12).
?56 trucks inspected at Nitzana and transferred via the Rafah Crossing.
?80 trucks inspected and transferred via Kerem Shalom. pic.twitter.com/IdFCoshXRn
— COGAT (@cogatonline) January 12, 2024
In the opening weeks of the war, Israel shut off water pipelines into Gaza, cut electricity, and completely barred aid entry. Since then, limited aid has been allowed into Gaza following international pressure, and certain water pipelines have been turned back on. The majority of said pipelines only flow to the south, meaning water access is still drastically limited in the north.
The UN has said that the present amount of aid entering Gaza is woefully inadequate to the needs of the population of 2.3 million, the entirety of which has reached crisis levels of hunger. Approximately 576,000 of these are starvation level.
In a similar story, a November estimate stated that 97% of Gaza’s water was unfit for human consumption. The situation has been made worse by Israeli airstrikes on or in proximity to Gaza’s water sanitization facilities, of which 50% have been destroyed or damaged.
Israel has stated they are allowing in large amounts of fuel and humanitarian supplies to meet humanitarian needs. They have accused Hamas of hijacking aid shipments of both fuel and other resources in order to supply their own war effort.
In Mid-November, Israel stated they would allow the delivery of 140,000 litres (37,000 gallons) of fuel into Gaza every 48 hours in order to supply humanitarian organizations needs.
According to the UN, 160,000 litres (42,000 gallons) of fuel are needed for just basic humanitarian needs daily.
As stated earlier, Israel’s defence took place across 3 hours. The total defence featured a significant amount of points made by the Israeli side, against the charges of genocide. This article serves as an overlook on the main points, and seeks to provide some of the context behind some of the main points. The ICJ streamed both the South African and Israeli oral arguments. If you would like to view the Israeli oral argument, you may do so here.