Emphasizes Hamas use of civilians, IDF efforts to protect them

Israel rejects genocide claims at The Hague, says South Africa’s allegations ‘baseless’

‘If there were acts of genocide, they’ve been perpetrated against Israel,’ says legal representative in reference to Oct. 7; attorneys say ministers’ problematic comments irrelevant

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

L-R: Dr. Tal Becker, Prof. Malcolm Shaw KC, Dr, Gilad Noam, Dr. Galit Raguan attend a hearing in the case brought to the International Court of Justice at The Hague in which South Africa has accused Israel of committing genocide in its war with Hamas in Gaza, January 12, 2024. (International Court of Justice)
L-R: Dr. Tal Becker, Prof. Malcolm Shaw KC, Dr, Gilad Noam, Dr. Galit Raguan attend a hearing in the case brought to the International Court of Justice at The Hague in which South Africa has accused Israel of committing genocide in its war with Hamas in Gaza, January 12, 2024. (International Court of Justice)

THE HAGUE — Israel’s legal team in The Hague attacked the fundamental claims of South Africa’s genocide allegations in the International Court of Justice on Friday, and punched holes in the accusations that Israel’s state organs have genocidal intent against the Palestinians in Gaza during the current conflict with Hamas.

Israel’s six legal representatives asserted that the ICJ has no jurisdiction over the complaints brought by South Africa since they relate to the laws of armed conflict, not genocide; argued that “random” inflammatory comments of Israeli politicians did not reflect policy determined in the state bodies making war policy; and insisted that the widespread harm to Palestinian civilians during the war was a result of Hamas’s massive use of civilian infrastructure for military purposes, and not genocidal acts.

They also underlined in depth the steps Israel has taken to warn civilians to evacuate from Israel Defense Forces operational areas and to provide humanitarian assistance to Palestinian civilians, including facilitating the establishment of field hospitals in Gaza to aid Gazans and mitigate harm to them.

Setting out Israel’s arguments at the start of Friday’s hearing, Foreign Ministry legal adviser Tal Becker denounced the arguments made by South Africa’s legal team on Thursday as “a grossly distorted story,” with “curated” allegations.

“If there were acts of genocide, they have been perpetrated against Israel,” Becker insisted in reference to the October 7 atrocities perpetrated by Hamas which sparked the war, and condemning South Africa’s assertion that Israel does not have the right to self-defense against the terror group.

“If the claim of the applicant is that Israel must be denied the ability to defend its citizens, the absurd upshot is that under guise of genocide claims this court is trying to stop Israel [from] defending its civilians against an organization which pursues a genocidal agenda against them,” said Becker.

Adviser to the Foreign Ministry Tal Becker attends a hearing at the International Court of Justice in The Hague, Netherlands, Jan. 12, 2024. (AP Photo/Patrick Post)

He said Israel was committed to complying with the law amid the war, “but it does so in the face of Hamas’s utter contempt for the law,” and argued the “appalling suffering” of civilians, both Israeli and Palestinian, was the result of Hamas strategy of hiding behind innocents.

“The applicant has regrettably put before the court a profoundly distorted factual and legal picture. The entirety of its case hinges on a deliberately curated, decontextualized, and manipulative description of the reality of current hostilities,” charged Becker.

“There can hardly be a charge more false and more malevolent than the allegation against Israel of genocide.”

Speaking after Becker, Prof. Malcolm Shaw sought to undermine the very foundation of South Africa’s case against Israel that it has genocidal intent against Gazans, despite some non-specific comments made by Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, National Security Minister Itamar Ben Gvir and others that South Africa cited as evidence that Israel is seeking to destroy the Palestinian people.

British jurist Malcolm Shaw, right, looks on during a hearing at the International Court of Justice in The Hague, Netherlands, Jan. 12, 2024. (AP Photo/Patrick Post)

Shaw said South Africa presented a “distorted picture” of a few inflammatory comments made by some Israeli politicians about the war in order to establish genocidal intent by Israel, but pointed out that only the policy decisions made by the small Israeli war cabinet and the broader security cabinet are relevant in determining Israeli policy in the war in Gaza, and that comments of individual ministers outside the context of those bodies were therefore irrelevant to a determination of genocidal intent.

“It is the collective decisions of those bodies which have binding provisions… In order to determine the policy and intentions of the government of Israel it is necessary to examine the decisions of the security cabinet and the war cabinet,” he said.

“To produce random quotes which are not in conformity with government policy is misleading at best,” said Shaw of South Africa’s allegations.

A protester stands outside the International Court of Justice, or World Court, prior to a hearing in The Hague, Netherlands, Jan. 12, 2024. (AP Photo/Patrick Post)

He cited by way of example a Security Cabinet meeting of October 29 when “the prime minister stated time and again that ‘we must prevent a humanitarian disaster’ and the prime minister indicated possible solutions for the supply of water, food and medicine, and increasing the supply of humanitarian aid trucks into Gaza.

Shaw also cited IDF standing orders specifying the need to differentiate between military and civilian targets, and numerous comments by Netanyahu and Gallant declaring that the goal of the war is to destroy Hamas and that it does not target the Palestinian people.

“If claims of genocide were to become common currency of armed conflict wherever that occurred, the essence of that crime would be lost,” he said.

Shaw said South Africa presented a “distorted picture” of comments made by Israeli politicians on the war in order to establish a claim of genocidal intent: “To produce random quotes which are not in conformity with government policy is misleading at best.”

In another critical part of Israel’s defense, Dr. Galit Raguan insisted to the court that Israeli policies of warning Palestinian civilians to evacuate from war zones, as well as providing humanitarian aid, demonstrated that there was not even plausibility to South Africa’s claims of that Israel is carrying out genocide.

She listed Israel’s numerous efforts to provide humanitarian aid to Gazan civilians, including facilitating the entry of new ambulances and hospital incubators into Gaza, the supply of food, water and medicine through the Kerem Shalom and Rafah crossings, and facilitating the establishment of four field hospitals in southern Gaza as well as two floating hospitals in the Mediterranean Sea.

“Even this mere fraction is enough to demonstrate how tendentious the allegations of the South Africans are and how the allegations of genocide are baseless,” she said.

Dr. Galit Raguan speaks in defense of Israel during the second day of hearings at the World Court, January 12, 2024. (Youtube screenshot)

Raguan also gave a detailed review of Hamas’s all-encompassing use of civilian infrastructure in Gaza for military purposes, showing pictures of rockets being fired from inside UN schools and next to water desalination plants, rocket launchers hidden inside the premises of a Scouts branch in Gaza and tunnels within hospital complexes, as well as describing the terror group’s use of mosques and UN facilities for its military operations.

She also took South Africa to task for its allegation that part of Israel’s supposed genocide was its attacks on hospitals and health care facilities in Gaza, without mentioning why the IDF conducted such operations.

“In every single hospital the IDF has searched in Gaza it has found evidence of Hamas using it,” said Raguan.

She noted in particular that Hamas had held Israeli hostages in the basement of the Rantissi hospital, fired RPGs at Israeli troops from the steps of the Al Quds hospital, dug a military tunnel system under Al Shifa Hospital in Gaza City, managed military operations from a hospital in Jabaliya, and that in one incident, 80 Hamas terrorists holed up inside the Adwan Hospital had surrendered to Israeli forces.

“This is a grave violation of international law which put patients and staff at risk… Yes, damage and harm have occurred, sometimes by IDF fire, sometimes by Hamas fire, but always as a direct result of Hamas’s abhorrent method of warfare,” said Raguan.

Pictures of hostages kidnapped during the Oct. 7 Hamas cross-border onslaught in Israel are placed by a table set during a protest outside the International Court of Justice in The Hague, Netherlands, Jan. 12, 2024. (AP Photo/Patrick Post)

She also denounced South Africa’s claims on Thursday that Israel’s warnings to civilians to evacuate from their homes was an effort to destroy Palestinian life in Gaza and therefore a genocidal act.

“The applicant astonishingly claims that these [evacuation warning] efforts are themselves genocidal, a measure intended to mitigate harm to civilians, is proof, according to the applicant, of Israel’s intent to commit genocide, when it in fact proves the exact opposite,” she said.

“Would Israel delay its ground operation for weeks, would it invest massive resources to tell civilians where, when and how to go [evacuate], to leave areas of fighting? Would it maintain a dedicated staff of experts whose sole role is [to] deliver aid despite being themselves coming under attack,” Raguan demanded, if it was seeking to commit genocide.

Following these arguments, Dr. Christopher Staker rejected one by one the nine provisional measures South Africa has asked the court to take against Israel, in particular, the request for it to order that Israel cease its military operation.

Staker argued that this request was designed to protect Hamas from Israel’s response to the October 7 atrocities it perpetrated, and would encourage the terror group to repeat those outrages.

“Provisional measures would stop Israel defending its citizens, more citizens could be attacked, raped and tortured [by Hamas], and provisional measures would prevent Israel doing anything,” he said.

“If granted, it would mean that when a recognized terror group commits terrorist attacks on another state, a third party seeking provisional measures can stop a party from defending itself,” said Staker.

“The inevitable fatalities and human suffering of any conflict is not of itself a pattern of conduct which shows genocidal intention. These provisional measures are therefore not within the court’s statutes,” he said.

Summing up the Israeli defense, Dr. Gilad Noam insisted that the court lacks “prima facie jurisdiction” since South Africa did not follow the correct diplomatic and bureaucratic procedures, a point made earlier by Shaw who described South Africa’s behavior in this respect as “disingenuous.”

More substantively, he told the court that were it to accept South Africa’s claims, it would embolden terrorist groups and provide them with cover to commit crimes against humanity in the future, as Hamas did on October 7.

“Entertaining the applicant’s request would weaken efforts to punish genocide and instead of [the court] being an instrument to prevent terrorist horrors would turn it into a weapon in hands of terrorist groups who have no regard for humanity and rule of law,” said Noam.

Granting South Africa’s request for provisional measures “would signal to terrorist groups that they can commit war crime and crimes against humanity and then seek the protection of this court,” charged Noam.

“We are witness to a concerted and cynical effort to pervert the meaning of genocide itself,” said Noam of South Africa’s application to the ICJ.

“The faith that has been placed in international law is too cherished an asset to be squandered. We appeal to the court not to be taken down that dangerous road.”

South Africa, which filed the lawsuit at the International Court of Justice (ICJ) in December, asked judges Thursday to impose emergency measures ordering Israel to immediately halt the offensive.

A person waves a Palestinian flag while passing a pro-Israel protest outside the International Court of Justice in The Hague, Netherlands, Friday, Jan. 12, 2024. (AP Photo/Patrick Post)

Israel has rejected the accusations of genocide as baseless and said South Africa was acting as an emissary of the Hamas terror group, which seeks to eliminate the Jewish state. It says the Israel Defense Forces is targeting Hamas terrorists, not Palestinian civilians, but that civilian casualties in the fighting are unavoidable as terrorists operate from within the population.

South Africa’s allegation that Israel is committing genocide against Gazans is based largely on its assertion that inflammatory comments by senior Israeli cabinet ministers with a say over war policy demonstrate an intent to kill civilians.

However, their case did not introduce evidence of facts on the ground to back up their claim of genocidal intent.

Protesters outside the International Court of Justice in The Hague, Netherlands, Jan. 12, 2024. (AP Photo/Patrick Post)

The 1948 Genocide Convention, enacted in the wake of the mass murder of Jews in the Holocaust, defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Post-apartheid South Africa has long advocated the Palestinian cause, a relationship forged when the African National Congress’s struggle against white-minority rule was cheered on by Yasser Arafat’s Palestine Liberation Organization.

British jurist Malcolm Shaw, right, talks to legal adviser to Israel’s Foreign Ministry Tal Becker during the a hearing at the International Court of Justice in The Hague, Netherlands, Friday, Jan. 12, 2024. The United Nations’ top court held hearings into South Africa’s allegation that Israel’s war with Hamas amounts to genocide against Palestinians, a claim that Israel strongly denies. (AP Photo/Patrick Post)

The court is expected to rule on possible emergency measures later this month, but will not rule at that time on the genocide allegations — those proceedings could take years.

The ICJ’s decisions are final and without appeal. The court has no way to enforce them, but ignoring them could have significant international ramifications.

The war was triggered by the October 7 Hamas-led massacre, when some 3,000 terrorists burst across the border by land, air and sea, killing some 1,200 people and seizing over 240 hostages of all ages.

Vowing to destroy the terror group after the devastating assault, Israel launched a wide-scale military campaign in Gaza, which the Hamas-run health ministry has said killed over 23,000 people since. These figures cannot be independently verified, and are believed to include both civilians and Hamas members killed in Gaza, including as a consequence of terror groups’ own rocket misfires. The IDF says it has killed over 8,500 operatives in Gaza, in addition to some 1,000 terrorists inside Israel on October 7.

Times of Israel staff and agencies contributed to this report.

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