At World Court, South Africa accuses Israel of Gaza genocide; Israel: Baseless claims

The Hague is urged to order immediate halt to IDF’s war against Hamas; ‘genocidal comments’ by PM cited; Israel: Hamas attempted genocide on Oct. 7 and South Africa is its ‘legal arm’

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Ambassador of the Republic of South Africa to the Netherlands Vusimuzi Madonsela, right, and Minister of Justice and Correctional Services of South Africa Ronald Lamola, center, during the opening of the hearings at the International Court of Justice in The Hague, Netherlands, Jan. 11, 2024.  (AP Photo/Patrick Post)
Ambassador of the Republic of South Africa to the Netherlands Vusimuzi Madonsela, right, and Minister of Justice and Correctional Services of South Africa Ronald Lamola, center, during the opening of the hearings at the International Court of Justice in The Hague, Netherlands, Jan. 11, 2024. (AP Photo/Patrick Post)

THE HAGUE — In unprecedented legal proceedings at the International Court of Justice on Thursday, Israel was accused by South Africa of perpetrating genocide against Palestinians in Gaza during the IDF’s ongoing operation against Hamas, in what the court was told is a deliberate effort to destroy life in the territory.

An eight-member South African legal team alleged that the widespread deaths of Palestinian civilians and the severely restricted access in Gaza to food, water, and medical treatment, combined with some highly inflammatory comments by senior Israeli government ministers, meant that Israel was conducting a genocidal campaign in the Palestinian coastal enclave.

They accused Israel of imposing conditions on Gaza “calculated to bring about the physical destruction of the people” and accused Israel of “exterminating” Palestinians.

Arguing that the rights of Gazans under the Genocide Convention face “urgent and irreparable harm,” the South African delegation urged the 17 judges on the ICJ panel hearing the case to issue provisional orders requiring Israel to immediately halt its military operation, noting that at this interim stage of the case the court need only establish that there is “plausibility” to the genocide accusations in order to take such action.

The Israeli Foreign Ministry described the South African claims as false, baseless and as “one of the greatest displays of hypocrisy in history.” It noted that the allegations made in court failed to acknowledge any Hamas responsibility for the nature of the conflict in Gaza, including its widespread practice of embedding its military installations and combatants within civilian infrastructure.

It said South Africa was “functioning as the legal arm” of Hamas, and that the claims “utterly distorted the reality in Gaza following the October 7 massacre and completely ignored the fact that Hamas terrorists infiltrated Israel, murdered, executed, massacred, raped and abducted Israeli citizens, simply because they were Israelis, in an attempt to carry out genocide.”

Israel initiated a military campaign against Hamas in Gaza after thousands of Hamas-led terrorists burst across the border into Israel on October 7, killed some 1,200 people, the large majority of whom were civilians, while also committing severe atrocities including mass rape and torture, and taking captive some 240 hostages.

British jurist Malcolm Shaw, right, legal adviser to Israel’s Foreign Ministry Tal Becker, left, look on during the opening of the hearings at the International Court of Justice in The Hague, Netherlands, Jan. 11, 2024 (AP Photo/Patrick Post)

The Hamas-run health ministry in Gaza says over 23,000 people have been killed in the fighting, though these figures cannot be independently verified, and include both civilians and combatants, some as a consequence of terror groups’ own rocket misfires.

The IDF says it has killed over 8,500 Hamas fighters in Gaza, in addition to some 1,000 terrorists inside Israel on October 7.

During their three-and-a-half-hour oral arguments, the South African legal representatives gave detailed descriptions of the suffering of Palestinians inside Gaza during the war, including the deaths of thousands of women and children, the injury and maiming of many thousands more, the devastation to civilian infrastructure, and the harsh living conditions prevailing in the territory as a result of the war.

While laying out the harsh reality in Gaza, they frequently utilized emotive language, accusing Israel of “herding” Palestinians into areas of Gaza to be killed, alleging that Gaza was “a concentration camp where genocide is taking place,” and comparing the IDF operation to “the killing fields of Cambodia” where the Khmer Rouge regime murdered more than one million people in the late 1970s.

“You have heard from us about the direct extermination of thousands of people and children of the Palestinian population in Gaza since 7 October last year,” said one speaker, Max du Plessis.

Judges preside over the opening of the hearings at the International Court of Justice in The Hague, Netherlands, January 11, 2024. (AP Photo/Patrick Post)

Although the South African representatives said that the country condemned Hamas’s October 7 assault on Israel, they did not discuss those atrocities at all during their oral arguments.

“Palestinians in Gaza are being killed by Israeli weaponry and bombs from air, land, and sea. They are also at immediate risk of death from starvation and disease, due to the destruction of Palestinians towns, the limited aid being allowed in, and the impossibility of distributing aid as the bombs fall. This makes life impossible,” said Adila Hassim. “Israel has killed an unparalleled and unprecedented number of civilians, with the full knowledge of how many lives each bomb will take,” she alleged.

“Palestinians have been killed in mosques, schools and hospitals. The level of killing is so extensive that bodies are often buried in mass graves, and are often unidentified,” she continued.

Absent from her oral argument and that of all her colleagues was any acknowledgment of the documented evidence of Hamas’s use of mosques, schools, hospitals, UN facilities, homes and other civilian infrastructure for military purposes.

Prof Vaughan Lowe sets out provisional measures sought by South Africa in its case against Israel for alleged genocide in Gaza, at the International Court of Justice in The Hague on January 11, 2024 (Reuters screenshot; used in accordance with clause 27a of the Copyright Law)

Similarly, her colleague Vaughan Lowe, KC, a British lawyer, accused Israel of “the relentless bombardment of Gaza,” including with “bunker-busting bombs,” but did not note that the bunker buster bombs are used to destroy Hamas military tunnels, command and control centers, and bunkers constructed underneath civilian infrastructure.

Lowe claimed that Article 51 of the UN charter permitting a country to defend itself from attack is not applicable to Israel’s war in Gaza, since, he contended, Israel remains “in occupation of Gaza” due to its control of its access points.

“Israel says it aims to destroy Hamas. But months of bombing, flattening entire residential blocks, cutting off food and water to an entire population cannot credibly be argued to be a manhunt for Hamas,” claimed Lowe.

He also alleged “Israel’s apparent inability to see that it has done anything wrong in grinding Gaza and its people into the dust.”

Hassim also accused Israel of having “deliberately imposed conditions on Gaza calculated to bring about the physical destruction of the people” by forcing the evacuation of over a million people from north to south Gaza, describing this move itself as “genocide” since it was “immediate” and did not allow evacuees to “take the necessities of life, water and food” with them, and therefore “was clearly calculated to bring about destruction of the population.”

Although initial warnings issued to Gaza residents were for them to evacuate within 24 hours, that deadline was extended several times, and humanitarian windows were instituted during many days to allow evacuees to head south to avoid bombardment.

Adila Hassim puts forward South Africa’s accusations against Israel at the International Court of Justice in The Hague, January 11, 2024 (Screen grab)

“Genocide is never declared in advance, but this court has evidence that shows a pattern of conduct that justifies plausible claim of genocidal acts,” Hassim alleged.

In another incendiary allegation, she claimed: “The reproductive violence inflicted by Israel on Palestinian women, newborn babies, infants and children could be qualified as acts of genocide… including imposing measures intended to prevent births within a group.”

In a critical oral argument, Tembeka Ngcukaitobi SC laid out a series of incendiary comments made by Prime Minister Benjamin Netanyahu and other senior cabinet ministers with influence over war policy, as well as numerous Knesset members and other influential figures.

These statements are crucial to South Africa’s case against Israel of genocide, because such allegations must demonstrate an intent to kill all or part of a particular group, be it national, ethnic, religious or otherwise.

Tembeka Ngcukaitobi puts forward South Africa’s accusations against Israel at the International Court of Justice in The Hague, January 11, 2024 (Screen grab)

Ngcukaitobi cited comments by Netanyahu who referenced on more than one occasion, including a speech on October 28, the biblical injunction for the Jewish people to “remember what Amalek did to you” when discussing the war in Gaza.

The Bible recounts that King Saul was commanded to destroy all men, women and children of the Amalekite people, which the South African application to the ICJ alleges demonstrates genocidal intent on behalf of Netanyahu.

In Netanyahu’s October 28 speech, he also insisted that the “IDF does everything to avoid harming noncombatants” and that the army was calling on the civilian population to evacuate to safe areas in Gaza.

Ngcukaitobi also cited, as evidence of genocidal intent, comments by Defense Minister Yoav Gallant describing Palestinians as “human animals” as well as comments by National Security Minister Itamar Ben Gvir saying that those who supported and celebrated the October 7 atrocities should also be targeted in the IDF operation in Gaza.

In a dramatic moment during the hearing, Ngcukaitobi played video footage of some IDF soldiers dancing in Gaza, saying explicitly they would fulfill the Biblical commandment of destroying Amalek, and singing “there are no innocents in Gaza.”

Charged the South African lawyer: “Genocidal utterances aren’t out in the fringes, they are embodied in state policy. The intent to destroy is understood by soldiers on the ground… Any suggesting that Israeli officials did not mean what they said or were misunderstood by soldiers on the ground should be rejected by this court.”

At the end of the South African oral arguments, Lowe detailed the provisional measures the country is requesting the ICJ order, including for Israel to “immediately suspend its military operations in and against Gaza”; desist from the “deprivation of access to adequate food and water” and other humanitarian assistance; and ensure that Israeli officials and others refrain from “direct and public incitement to commit genocide” and punish those who do.

Lowe also claimed that Israel’s campaign against Hamas was not covered by Article 51 of the UN charter permitting a country to defend itself from attack, since, he contended, Israel remains in occupation of Gaza due to its control of its access points.

“Israel says it aims to destroy Hamas. But months of bombing, flattening entire residential blocks, cutting off food and water to an entire population cannot credibly be argued to be a manhunt for Hamas,” alleged Lowe.

Citing UN officials, Lowe said the suspension of Israel’s military operations was critical in enabling the provision of humanitarian relief to Palestinians in Gaza.

He also pointed out that no disciplinary measures have been taken against those in Israel, including government officials and Knesset members, for what South Africa described as “incitement to genocide.”

“The Israeli government, not the Jewish people or Israeli citizens, is intent on destroying the Palestinians in Gaza as a group,” concluded Lowe.

Soldiers operating in the Gaza Strip in an undated photo released January 11, 2024 (Israel Defense Forces)

At the conclusion of the South African case, Israel’s Foreign Ministry denounced what it called “one of the greatest shows of hypocrisy in history, compounded by a series of false and baseless claims.

“South Africa, which is functioning as the legal arm of the Hamas terrorist organization, utterly distorted the reality in Gaza following the October 7 massacre and completely ignored the fact that Hamas terrorists infiltrated Israel, murdered, executed, massacred, raped and abducted Israeli citizens, simply because they were Israelis, in an attempt to carry out genocide,” the ministry said.

“South Africa seeks to allow Hamas to return to commit the war crimes, crimes against humanity and sexual crimes they committed repeatedly on October 7, as its leaders have stated,” it added.

Ambassador of the Republic of South Africa to the Netherlands Vusimuzi Madonsela (left) speaks, as Israel’s delegates look on, as he sums up South Africa’s demands of the International Court of Justice in The Hague in response to what South Africa claims is Israeli genocide in the Gaza Strip, January 11, 2024 (YouTube screenshot, used in accordance with Clause 27a of the Copyright Law)

“Hamas’s representatives in the Court, the South African lawyers, are also 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 with the intention of endangering the lives of the residents of the Gaza Strip,” the ministry said.

It noted that “136 hostages are being held in Hamas captivity, denied access to Red Cross representatives and medical care,” and it vowed: “The State of Israel will continue to protect its citizens in accordance with international law, while distinguishing between Hamas terrorists and the civilian population, and will do anything in its power to release all hostages and  eliminate the Hamas terrorist organization, a racist and antisemitic terrorist organization that calls in its Convention for the destruction of the State of Israel and the murder of Jews.”

Retired Supreme Court President Aharon Barak is sworn in as Israel’s appointee to the bench at the International Court of Justice in The Hague, January 11, 2024 (Screen grab)

The bench at the ICJ comprises 15 permanent judges and the two ad hoc judges from Israel and South Africa — former Israeli Supreme Court president Aharon Barak and South Africa’s former deputy chief justice Dikgang Moseneke, who were sworn in by ICJ President Judge Joan Donoghue at the start of Thursday’s proceedings.

Israel is to respond to the South African case on Friday.

The court will then weigh its initial response, which is expected within days. It is seen as unlikely to reject the South African case out of hand, while the prospect that it might indeed order an immediate ceasefire is considered a possibility. It could also order less dramatic steps, such as a greater influx of humanitarian aid, the return of northern Gazans to their homes, or the introduction of international officials of some kind into Gaza. Responsibility for the enforcement of any order would fall to the United Nations Security Council.

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