ISRAEL AT WAR - DAY 142

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US lambasts ‘meritless’ South African request for ICJ to charge Israel with genocide

Israeli official acknowledges incendiary comments by coalition lawmakers cited in Johannesburg’s application may cause problems when Jerusalem makes case before top panel

Palestinians walk past destroyed buildings in Gaza City on Wednesday, Jan. 3, 2024. (AP/Mohammed Hajjar)
Palestinians walk past destroyed buildings in Gaza City on Wednesday, Jan. 3, 2024. (AP/Mohammed Hajjar)

The Biden administration on Wednesday tore into South Africa for filing an application at the International Court of Justice to begin proceedings to declare that Jerusalem was violating its obligations under the 1948 Genocide Convention in its war against Hamas following the Gaza-ruling terrorist group’s murderous October 7 onslaught.

US National Security Council spokesman John Kirby called South Africa’s submission “meritless, counterproductive and completely without any basis in fact whatsoever.”

US State Department spokesman Matt Miller noted that the US is “not seeing any acts that constitute genocide” by Israel in its war against Hamas.

“Genocide is one of the most heinous atrocities that any individual can commit. Those are allegations that should not be made lightly,” Miller said, adding that the US does not think South Africa’s decision to pursue an ICJ probe was a “productive step to take at this time.”

South Africa’s application last week to the Hague-based court charges that IDF operations against Hamas “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.”

This wasn’t the first time US officials have taken issue with the genocide charge lobbed at Israel since the outbreak of the war.

In November, Kirby tore into anti-Israel activists who have been accusing the Jewish state of carrying out a genocide in Gaza.

He clarified that the demonstrators have a First Amendment right to free speech, “but this word ‘genocide’ getting thrown around in a pretty inappropriate way by lots of different folks.”

“Israel is not trying to wipe the Palestinian people off the map. Israel is not trying to wipe Gaza off the map. Israel is trying to defend itself against a genocidal terrorist threat. So if we’re going to start using that word, Fine. Let’s use it appropriately,” Kirby said.

“Yes, there are too many civilian casualties in Gaza. Yes, we continue to urge the Israelis to be as careful and cautious as possible,” he added.

Israel responded to the petition, accusing South Africa of a “blood libel,” while confirming that it will send a representative to defend the country against the charges at the first hearing slated for January 11.

Israel has not yet finalized who will sit on its legal team, but an official confirmed to The Times of Israel that Prime Minister Benjamin Netanyahu is considering prominent US attorney Alan Dershowitz.

Dershowitz did not deny that he had been approached but declined to comment.

File: This photo shows an exterior view of the Peace Palace, which houses the International Court of Justice, or World Court, in The Hague, Netherlands on February 18, 2019. (AP/Peter Dejong)

An Israeli diplomatic official told reporters Wednesday that elected officials would examine possible responses if the International Court of Justice issues an injunction calling for Israel to implement a ceasefire or specifically address the humanitarian crisis.

“I can’t say what we will do right now if there will be this or that decision…. [but] we respect [the court’s] status,” the Israeli diplomatic official said. “It is a decision for the political echelon to make in the event that there is an injunction of one kind or another.”

The official described most of the allegations in the South African filing as “ridiculous,” but noted that there was also a section relating to comments made by senior Israeli politicians that indicated a deviation from acceptable practices in wartime and noted that the filing used those comments to show that Israeli policy violates the 1948 Genocide Convention.

Israel is a signatory to that convention and is therefore subject to the jurisdiction of the ICJ, a UN organ, and its rulings.

Johannesburg argued that the Israeli government is not acting to punish those inciting genocide, including a long list of statements from senior Israeli officials that it claimed were evidence that Jerusalem intends to carry out genocide in Gaza.

Drawing a legal connection between the statements — as controversial as they might be — and actions by the IDF in Gaza will likely be a much harder for South Africa to make at the ICJ.

Palestinians flee to the southern Gaza Strip along Salah al-Din Street in Bureij, Gaza Strip, November 9, 2023. (AP Photo/Hatem Moussa)

The statements referenced in the application included ones by Netanyahu, who likened Israel’s fight against Hamas to the one waged against the Biblical Amalek in which it was forbidden to spare the lives of any civilians. Statements from President Isaac Herzog, Defense Minister Yoav Gallant, National Security Minister Itamar Ben Gvir, Foreign Minister Israel Katz and Likud MK Boaz Bismuth regarding the targeting of civilian populations in Gaza were also included.

The ICJ application highlighted Heritage Minister Amichai Eliyahu’s suggestion that Israel could drop an atomic bomb on Gaza — a remark that was condemned by Netanyahu and one that the far-right lawmaker later walked back amid international uproar.

South Africa also highlighted comments by Agriculture Minister Avi Dichter and Likud MK Ariel Kallner who likened Israel’s current war in Gaza to the “Nakba” — the Arabic term for catastrophe Palestinians use to refer to Israel’s 1948 War of Independence, which saw hundreds of thousands of Palestinians flee their homes.

Fellow Likud MK Nissim Vaturi was also cited in the ICJ application for his tweet calling for “erasing Gaza from the face of the earth” after Hamas’s October 7 terror onslaught, in which thousands of Palestinian terrorists slaughtered some 1,200 people — mostly civilians who were massacred amid horrific acts of brutality — and kidnapped more than 240 others.

Another Likud backbencher, Tally Gotliv, was referenced for a tweet in which she said, “It’s good for morale to wish for Gaza to be wiped out and set on fire. I have said many times: revenge is a virtue. They almost occupied the kibbutzim of the south, slaughtered, raped, beheaded and gouged out people’s eyes. So let their village burn.”

South Africa also included Likud MK Galit Distel Atbaryan in its ICJ application for tweeting that Israelis should unite in “erasing all of Gaza from the face of the earth” after she watched footage of the October 7 atrocities compiled by the IDF.

Likud MK Tally Gotliv speaks during a discussion and a vote in the Knesset, in Jerusalem on July 30, 2023. (Yonatan Sindel/Flash90)

Another Likud MK, Keti Shitrit, was cited for her own tweet expressing support for “flattening Gaza.”

From the Opposition, Yisrael Beytenu chairman Avigdor Liberman was cited for his statement declaring that “there are no innocent civilians in Gaza.”

Non-political officials were also included in South Africa’s evidence, including Israel’s chief military liaison to the Palestinians Gen. Ghassan Alian for saying on October 10 that “Hamas has become ISIS, and the residents of Gaza, instead of being appalled, are celebrating.”

“Human animals must be treated as such. There will be no electricity and no water [in Gaza], there will only be destruction. You wanted hell, you will get hell.”

The application also cited one of Alian’s deputies, Col. Yogev Bar-Shasht, who said in a statement that those returning to Gaza after the war “will find scorched earth. No houses, no agriculture, nothing. They have no future.”

South Africa included clips of individual and groups of IDF soldiers making political statements and messages about Israel’s right for revenge, some of which the army has denounced while ordering officers to crack down on the phenomenon.

The application also cited remarks made by prominent Israeli public figures, including singers Kobi Peretz and Eyal Golan who called for “erasing Gaza.”

Also cited was far-right commentator Eliahu Yusian, who has repeatedly asserted that there is no civilian population in Gaza and that the enclave is inhabited entirely by terrorists who are legitimate targets for Israel. Haaretz reported that the US-based Friends of the IDF is hosting a lecture with Yusian for a large group of beneficiaries.

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

Israel has rejected any assertion it is targeting civilians or is 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.

Israeli officials note that the IDF warned Gazan civilians for several weeks before the launch of its major ground operation in late 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.

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.

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 United Nations and other international bodies could take against the country.

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