Israel confirms it’ll defend itself from Gaza genocide claims in The Hague next week

Spokesman: ‘History will judge South Africa for abetting modern heirs of the Nazis’; court seen unlikely to order halt to IDF campaign, could demand more aid, fuel, medical supplies

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

The United Nations flag flutters in the wind next to the International Court of Justice in the Hague, the Netherlands, on August 27, 2018. (AP Photo/Mike Corder)
The United Nations flag flutters in the wind next to the International Court of Justice in the Hague, the Netherlands, on August 27, 2018. (AP Photo/Mike Corder)

The first hearing at the International Court of Justice on the South African filing accusing Israel of perpetrating genocide against the Palestinians in the ongoing war with Hamas in Gaza will take place next week, an Israeli official said on Tuesday.

A January 11 hearing will see South African representatives lay out their case against Israel, while Israel will present its defense against the charges on January 12.

A spokesperson for the ICJ said it could not immediately confirm those dates.

An Israeli government spokesman announced that representatives of the country will appear before the court to defend Israel’s position, which he described as “a blood libel” against the Jewish state.

In its application filed last week, South Africa accused Israel of actions during its war against Hamas in Gaza that are “genocidal in character, as they are committed with the requisite specific intent… to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”

Israel is a signatory to the Genocide Convention adopted by the United Nations General Assembly in 1948 and is therefore subject to the jurisdiction of the ICJ, a UN organ, and its rulings.

Prime Minister Benjamin Netanyahu visits troops in Gaza, December 25, 2023. (Avi Ohayon/GPO)

Under the terms of the convention, Israel is obligated to send representatives to the court following the submission of a filing against it.

Israel declared war on Hamas after the terror group burst across its southern border from Gaza on October 7, slaughtering some 1,200 people — mostly civilians who were massacred amid horrific acts of brutality — and kidnapping more than 240 others.

It rejects any assertion it is targeting civilians or engaged in anything other than a campaign for its security. Israel says it is making an effort to avoid harm to civilians while fighting a terror group embedded within the civilian population. It has long accused Gaza-based terror groups of using Palestinians in the Strip as human shields, operating from sites, including schools and hospitals, which are supposed to be protected.

The Hamas-run health ministry in Gaza has claimed that since the start of the war, more than 22,000 people have been killed, mostly civilians. These figures cannot be independently verified and are believed by Israel to include some 8,500 Hamas fighters, as well as civilians killed by misfired Palestinian rockets. Another estimated 1,000 terrorists were killed in Israel during the October 7 onslaught.

“The State of Israel emphatically condemns South Africa’s decision to play devil’s advocate and make itself criminally complicit with the perpetrators of the October 7 massacre,” said Israeli government spokesperson Eylon Levy during a press conference on Tuesday.

Confirming that Israel would be sending representatives to the hearings, Levy said it was “tragic” that South Africa was “fighting pro bono for anti-Jewish racists,” and said that “history will judge South Africa for abetting the modern heirs of the Nazis.”

Levy said Hamas deliberately and systematically places its military infrastructure and situates its fighters within civilian centers such as hospitals, schools and mosques, in order to use Palestinian civilians as human shields.

He added that the IDF warned Gazan civilians for several weeks before the launch of its major ground operation in October to evacuate themselves from northern Gaza, and placed 70,000 phone calls, sent 13 million text messages, left 14 million voice messages, and dropped 7 million leaflets urging civilians to evacuate temporarily for their safety and informing them about humanitarian pauses and precise evacuation routes.

“The Hamas… regime bears full moral responsibility for all casualties in this war it launched on October 7 and is waging from inside and underneath hospitals, schools, mosques, homes and UN facilities,” said Levy.

Smoke rises following an Israeli bombardment in the Gaza Strip, as seen from southern Israel, Saturday, Dec. 16, 2023. (AP/Ariel Schalit)

Cases in the ICJ are heard by a panel of all 15 judges of the court, but both parties to a case may themselves nominate a judge to the panel. Decisions are made by a simple majority of the presiding judges.

A government official said that Israel will certainly nominate a judge on its behalf, and that prominent US lawyer Alan Dershowitz has been one of several names floated who might be picked for this role.

Officials from several government ministries and agencies are involved in dealing with the ICJ case, including from the Justice Ministry, the Foreign Ministry and the Prime Minister’s Office, among others.

Potential repercussions of a ruling against Israel

Proceedings in the ICJ are not criminal in nature and the defendant is the State of Israel and no individual governmental or military official.

As such, there would be no criminal implications for Israeli officials if the ICJ ruled against Israel, although it could lead to severe diplomatic repercussions, in terms of possible sanctions and other measures the UN and other international bodies could take against the country, said Prof. Amichai Cohen, an expert in the international law of armed conflict at the Israel Democracy Institute.

One of the concerns for Israel is South Africa’s request for the ICJ to apply “provisional measures” against Israel that might include an order to halt combat operations.

An image of a tunnel entrance uncovered by IDF troops inside a mosque in the Khan Younis area, December 28, 2023. (Israel Defense Forces)

South Africa said it was requesting such measures “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide.”

Cohen said he did not believe the court would issue an outright order for Israel to halt its military operation, but said that it could order Israel to increase the supply of humanitarian aid, fuel and medical supplies.

He said that the court has been relatively cautious and conservative in the past, noting that it ruled that Serbia had not been directly responsible or complicit in the 1995 Srebrenica massacre during the Bosnia war, even though it did determine that incident to have been an act of genocide.

“Genocide means there has to be an intention to destroy a specific ethnic or national group,” said Cohen, noting that a large section of South Africa’s filing related to comments made by Israeli government ministers, including Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and other members of the security cabinet who take key decisions on the prosecution of the war, among them Finance Minister Bezalel Smotrich and National Security Minister Itamar Ben Gvir.

These statements, South Africa alleged, showed genocidal intent.

Cohen described the genocide allegation as “outrageous” and said that the IDF was, in general, complying with international law in its campaign against Hamas in Gaza.

“There is clearly no intent by Israel to destroy the Palestinian population in the Gaza Strip. Substantively, this claim is outrageous,” he said.

Cohen noted, however, that South Africa’s filing also alleges that Israeli officials are inciting to genocide, which is also prohibited under the genocide convention, and expressed concern about the possible consequences of some of the more extreme comments made by some hard-right officials.

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