In the midst of an hour-long disquisition this morning by an Israeli lawyer regarding the procedural, legal, and factual shortcomings of South Africa’s application to the International Court of Justice, asking the ICJ to order Israel to halt its assault on Gaza, there was a brief moment of levity.
White-wigged British barrister Malcolm Shaw lost his place. Someone had shuffled his papers.
“Someone thought my speech was a pack of cards!” Shaw declared, apologetically and a bit flustered.
Aside from that, today’s testimony by Israel’s six-member legal team was entirely predictable.
Israel, its lawyers told the court, is bending over backward to protect civilians as it wages its righteous war against murderous, indeed, genocidal terrorists. Israel’s commitment to deeply held “core values,” to the rule of law, to international human rights conventions as it prosecutes its war is steadfast. The Jewish State is moving heaven and earth to provide food, water, and medical supplies to Gaza’s people, as Hamas does everything in its power to undercut Israel’s own deeply conscientious humanitarian efforts.
Israeli attorney Tal Becker’s opening statement set the tone for the presentations to follow.
South Africa, Becker told the court, has presented a “profoundly distorted legal picture,” a “sweeping counterfactual description” of the conflict that began on October 7. The arguments put forward in South Africa’s 84-page application to the court are barely distinguishable from Hamas’s rhetoric. Indeed, Becker told the court, South Africa has shown itself to be allied with the “terrorist group.”
Having acknowledged the presence of the families of Israeli hostages in the court, Becker proceeded to describe Hamas’ “carnage and sadism” in detail — brutal acts largely ignored by South Africa in its provisional measures application. Entire families burned to ashes; torture; mutilation; rape, murder.
“None of these atrocities absolve Israel’s obligations under the law,” Becker admitted. But genocidal acts have been perpetrated against Israel, not the other way around, by a terrorist organization with patently “annihilationist” aims, holed up in “the most sophisticated terrorist stronghold in history,” shamelessly hiding in hospitals, churches, mosques, schools, and refugee centers; methodically stealing and hoarding humanitarian supplies; destroying much of Gaza’s infrastructure with its own missiles, after brutally murdering over a thousand Israeli civilians.
Provisional measures requested by South Africa would thwart Israel’s right to defend its own people, Becker declared.
“Under the guise of the allegation against Israel of genocide, this court is asked to call for an end to operations against the ongoing attacks of an organization that pursues an actual genocidal agenda,” Becker told the court. “That is an unconscionable request.”
South Africa’s application for provisional measures is a “transparent attempt to abuse the [Genocide] Convention’s compulsory enforcement mechanism,” Becker said, a mechanism crafted as a solemn promise to the Jewish people — “never again.”
White-wigged British barrister Malcolm Shaw came next. Over the course of an hour, Shaw set out to dismantle South African claims that the UN’s top court exercises prima facie jurisdiction, in a dispute Shaw insisted doesn’t exist.
South Africa had proposed to the court that it place the current conflict in context, by going back to Israel’s founding in 1948. Why not go back to the start of the British Mandate in 1922, Shaw asked? How about the 1917 Balfour Declaration? How about 3500 years ago, when Israeli tribes first entered the Land of Israel?
And how about the context of Hamas, and their insatiable desire to spill Jewish blood, with Iranian support?
“Armed conflict, even when fully justified, and conducted lawfully, is brutal and costs lives, particularly when the militia in question specifically targets civilians and civilian facilities, and when it is patently unconcerned about causing civilian casualties on its own side,” Shaw told the court.
“Not every conflict is genocidal,” Shaw opined. Genocide is “the crime of crimes, the ultimate in wickedness … if claims of genocide were to become the common currency of armed conflict, whenever and wherever that occurred, the essence of this crime would be diluted and lost.”
As anticipated, Shaw challenged the notion (put forward in yesterday’s court session by former UN Special Rapporteur John Dugard, which Shaw labeled “disingenuous”), that a bona fide “dispute” actually exists between South Africa and Israel, as defined under Article IX of the Genocide Convention – the sina qua non for requesting Provisional Measures from the court.
For a dispute to exist under Article IX, Shaw said, one party must “positively oppose” the arguments of the other. Simple assertions by one party about the conduct of another is not enough, Shaw argued. That other state must have a chance to respond, something Israel never did, Shaw said.
“This is not a dispute,” Shaw told the court, conjuring up images of Monty Python’s renowned ‘Department of Arguments’ skit. “It is a unispute, a one-handed clapping of hands.”
Moving to the question of Israeli ‘intent’ to commit genocide – a matter Shaw agreed was subject to consideration by the court at the ‘merits’ stage – Shaw denied that any such intent existed.
“There is little beyond random assertions to demonstrate that Israel has or has had the specific intent to destroy in whole or in part the Palestinian people as such.”
Any true expressions of Israeli intent to commit genocide can be dealt with by “Israel’s robust and independent legal system.” Shaw dismissed well-publicized, allegedly genocidal statements by Benjamin Netanyahu and top military leaders downward as overblown and decontextualized. They merely express “anguish” over the death and suffering of Israelis under Hamas’ genocidal assault.
Comments by lesser figures have been “immediately repudiated.”
Far from committing genocide, the Israeli military has moved heaven and earth to warn Gazan civilians through “unprecedented and extensive use” of text messages and leaflets.
As for the ecstatic chants of dancing Israeli soldiers, declaring that there are no civilians in Gaza, that Gaza’s villages will be destroyed – after receiving pep talks from Netanyahu and top military leaders, these don’t reflect actual government and military policy, Shaw told the court. The IDF does everything possible to prevent civilian casualties, always abiding by the rules of war.
“Consistent and relentless commitment of Israeli relevant authorities to mitigate civilian harm and alleviate civilian suffering in Gaza.”
The remainder of Israel’s response to South African charges followed a similar tack: Hamas embeds itself in the civilian population; they are responsible for many civilian deaths and for the destruction of Gaza’s residential buildings, schools, mosques, and shelters, all of which they’ve used as hideouts and rocket launch pads; faced with this enormous challenge, the IDF bends over backward to protect civilians, moving heaven and earth to make sure civilians are safe, secure and healthy.
That civilians in Gaza have suffered is not in dispute, but it’s all Hamas’ fault.
“When a population is ruled by a terrorist organization that cares more about wiping out its neighbor than about protecting its own civilians, there are acute challenges in protecting the civilian population,” Israeli attorney Galit Raguan told the court. “Intent to commit genocide is not even a plausible inference.”
And so on. Bottom line, Israeli attorney Christopher Staker argued, South Africa’s request for Provisional Measures should be denied by the court – each and every one.
Lots for the ICJ’s 15 justices to chew on. Its two judges ad hoc, Israel’s Aharon Barak and South Africa’s Dikgang Ernest Moseneke, have surely made up their minds.
A ruling on preliminary measures is anticipated by the end of the month.
Hours after the close of today’s hearings at The Hague’s ornate peace palace, a crowd of Palestinians and their European and North American supporters gathered for a post-mortem at a nearby academic institute.
“I might have found the arguments today a little bit less persuasive [than South Africa’s],” Katie Gallagher, Senior Staff Attorney at the U.S. Center for Constitutional Rights, told the group.
The CCR is in the midst of a lawsuit against Joe Biden, Antony Blinken and Lloyd Austin at a California District Court, on behalf of a half dozen Palestinian NGOs and individual plaintiffs. They are seeking an injunction from the court halting U.S. military support for Israel, and anticipate that a provisional measures order from the ICJ, in South Africa’s case, would strengthen theirs.
“What we heard a lot of was what we’ve been hearing in the news,” Gallagher said. “It was, to me, a much more rhetorical argument about self-defense than it was a proper application of principles of what we should call by its name, international humanitarian law, which has as its core purpose the protection of civilians,” Gallagher explained.
“Whether the case that Israel presented will be able to tilt the court’s decision into dismissing South Africa’s submission, I honestly don’t think so,” said Giulia Pinzauti, Assistant Professor of Public International Law at Leiden Law School’s Grotius Centre for International Legal Studies.
“I didn’t find three-quarters of the presentation by Israel very compelling on the law, until maybe the last two speakers. They made perhaps some good points. I do think that the court’s jurisdiction is established on a prima facie basis … and I think that Israel did put together the best argument to say that there is no ‘dispute’, and that the acts complained of are not capable of falling under the Genocide Convention, but I think that the reality that we see, even from where we stand, even reporting from Gaza, tells a different story. And I think that the judges will not bind to [Israel’s] dismissive arguments.”
That doesn’t mean, however, that a South Africa win is expected or will be clear cut. Pinzauti believes that the Israeli delegation did make some effective arguments that can impact the provisional measures that the court will award.
“What I think might happen is that the court will not order all of the measures that were requested by South Africa, and might order some of them, or slightly different ones,” Pinzauti explained. “For example, I think it is unlikely that the court will order the suspension of Israel’s military operations in Gaza, as was requested by South Africa. It is a measure that has been ordered in the Ukraine v. Russia case, but I think Israel’s lawyers made good arguments on how these two cases should be distinguished, and I don’t see the court going down that route.”
In Pinzauti’s view, the Court may be more likely to order the parties to use the means at their disposal, including diplomatic means, to arrive at a ceasefire.
Pinzauti, like other observers, left Friday hopeful that the court will take some action.
“I hope that the court will not dismiss South Africa’s request and will not dismiss the application,” she said, “but it might order measures that are different from those that were requested by South Africa.”
If, for some reason, they won’t call it “genocide”, it is certainly ethnic cleansing.
“Israel, its lawyers told the court, is bending over backward to protect civilians as it wages its righteous war against murderous, indeed, genocidal terrorists. Israel’s commitment to deeply held “core values,” to the rule of law, to international human rights conventions as it prosecutes its war is steadfast. The Jewish State is moving heaven and earth to provide food, water, and medical supplies to Gaza’s people, as Hamas does everything in its power to undercut Israel’s own deeply conscientious humanitarian efforts.”
Does anyone believe this? with the exception of Israeli Jews, who, Dennis Ross told us, don’t know what Israel is doing in Gaza.
Disingenuous defence. Full of lies and propaganda. If Israel considers Hamas a terrorist organization, why was Netanyahu, and other Israelis, on the record supporting it financially? Why did Israel effectively midwife the organization? In terms of supporting terrorists, as the Apartheid state lawyer asserted SA is doing, why did Israel provide medical care to ISIL terrorists fighting Syrian troops?
Of course, this will likely give judges who were appointed by states complicit in Israel’s war in Palestinian children, an excuse to reject the South African action.
The Israeli representatives pretty much demolished the absurd and grotesque case put forward by the South African representatives.
Meanwhile, we’ll be counting 100 days of captivity for our kidnapped hostages. There will be huge protests in Tel Aviv and all over the country , demanding that the government regard returning the hostages as the #1 priority. Children and women and men, Jews and Arabs and foreigners, civilians and soldiers, sick and wounded…our sisters and brothers….starved and abused and neglected.
On this Sabbath, all over the Jewish world , the weekly Torah portion read in the synagogues included the demand “LET MY PEOPLE GO” (Exodus 7:17).