In a landmark hearing Thursday, South Africa laid out its claim that Israel's bombing and blockade of Gaza demonstrated its “intent” to commit genocide against Palestinians, and urged the court to order a halt to the violence.
During three hours of statements on Friday, the Israeli delegation rejected the plausibility of genocide in Gaza and said ordering Israel to halt military operations would put Israeli civilians in danger. They accused South Africa of presenting a “grossly distorted” picture by largely ignoring Hamas' role in fighting and “weaponising” the International Convention against Genocide.
Tal Becker, legal adviser to the Israeli Foreign Ministry, told the court that South Africa “now seeks to use this term in the context of Israel’s conduct in a war it did not start and did not want,” in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations that it does not want. Its brutality knows no bounds.
The hearings this week will not assess whether Israel committed genocide. Instead, in the coming days the justices will consider South Africa's call for interim measures – temporary steps aimed at preventing matters from getting worse while the case is pending.
“At this stage, South Africa does not need to prove that Israel is committing genocide,” said Juliet McIntyre, a law lecturer at the University of South Australia who specializes in international courts. “They simply need to prove that there is a reasonable risk of genocide.”
A decision on the temporary measures is expected within weeks.
At the heart of South Africa's case is the assertion that Israel has demonstrated “genocidal intent.” For example, lawyers representing South Africa said Thursday that Israeli officials deliberately used dehumanizing language to normalize “genocidal rhetoric” and incite soldiers on the ground.
Israeli representatives said South Africa carefully selected the quotes, taking statements out of context from mostly marginal politicians who had no decision-making power. Israel claimed on Friday that South Africa had also failed to provide further statements from senior leaders demanding humanitarian aid, as well as standing orders in the army to avoid unnecessary civilian casualties.
British lawyer Malcolm Shaw told the court: “Providing random quotes that are inconsistent with government policy is misleading at best.”
The Israeli delegation also pointed to measures to keep civilians out of danger, including phone calls and leaflets warning Palestinians of upcoming air strikes and evacuation orders. They added that the increasing pace of aid trucks entering Gaza is further evidence that Israel has no intention of genocide.
On Thursday, Blaine Ní Gralay, an Irish lawyer on the South Africa team, said there was an urgent need for the court to order interim measures, citing the risk of “irreparable” harm to Palestinians in Gaza. “On average, 247 Palestinians are killed and at risk of being killed every day, many of them literally torn to pieces. Among them are 48 mothers every day, two every hour. “More than 117 children every day,” she said.
Omri Sinder, representing the Israeli side, responded on Friday that the urgency was not in fact as critical as South Africa suggested, saying that “the scope and intensity of hostilities are decreasing.”
Christopher Stacker, who also represents Israel, said South Africa's call for an interim order was unwarranted and harmful and would give an advantage to Hamas and harm Israeli civilians.
“In response to the October 7 massacre, which Hamas has publicly vowed to repeat, and to the continuing attacks against it from Gaza, Israel has the inherent right to take all legitimate measures to defend its citizens and secure the release of prisoners.” “Hostages,” Baker said.
The International Court of Justice was established after World War II as a means of settling disputes between states. In 1948, genocide became a crime under international law, and the court was empowered to determine whether states had committed it.
The court's rulings are legally binding but difficult to implement. For example, Russia ignored an International Court of Justice order to immediately halt its invasion of Ukraine. Legal analysts said it could take years before the court rules on the case.
“Palestinians in Gaza face catastrophic living conditions as a result of war crimes committed by Israeli authorities,” said Balqis Jarrah, associate director for international justice at Human Rights Watch.
She said that her organization found that Israeli forces imposed collective punishment on civilians in Gaza by depriving them of water, electricity, and food.
“The Israeli authorities also use starvation of civilians as a method of war,” Jarrah said. “The seriousness and seriousness of the situation in Gaza calls for the scrutiny of the International Court.”
For many Palestinians, the global broadcast of South Africa's case accusing Israel of genocide in its military campaign against Hamas in Gaza was not welcomed as merely an opportunity to stop violence that has claimed tens of thousands of lives. This was also a rare public acknowledgment of Israel's occupation of Palestinian territories and policies they consider to be apartheid.
“We feel like we are here for the first time,” said Diana Butu, a Palestinian human rights lawyer and former advisor to Palestinian Authority President Mahmoud Abbas. “It is no longer limited to the Palestinians confronting Israel; “It was another country putting its diplomatic relations on the line to raise this issue.”
Mandela supporters gathered in Nelson Mandela Square in Ramallah in the West Bank on Thursday, waving Palestinian and South African flags after a South African legal team presented its arguments in the Netherlands. Social media came to life with festive posts.
The actions were also big news in Israel, where detailed arguments against the military's actions are not always widely broadcast. Most commentators dismissed the legal case, saying it largely ignored the brutal October 7 attacks and the continued hostage-taking in Gaza, both of which dominate discourse in Israel.
The first day of testimony was a jolt of “disbelief” among Israelis, according to Amichai Cohen, a law professor at Ono Academic College in Israel. He said that portraying Israelis as the aggressors in what they overwhelmingly view as an existential war of self-defense is widely rejected.
He said: “The reality described by South Africa was completely different from the reality that Israelis live every day.”
Cohen, who acknowledged that South Africa had collected some “really disturbing” examples of Israeli officials’ rhetoric, credited the Israeli legal team with presenting strong counterarguments on Friday. He added that the team wisely exploited South Africa's failure to provide a full description of Hamas' role, not only in the October 7 attacks but in the ongoing battles in Gaza.
“They presented a case without enthusiasm,” Cohen said. “I think Israel has been effective in showing how responsible Hamas is, through examples of Hamas fighting from within civilian populations and shootings from UN schools.”
He said the Israeli offer may have made it unlikely that the court would order an immediate ceasefire.
Bhutto, who helped bring a case against separation barriers built by Israel to isolate West Bank communities, said failure to issue an order limiting military operations in Gaza would be tantamount to a failure of the international legal system. But even just laying out the arguments systematically was a milestone for Palestinians, she said.
“Something important has already been accomplished,” she said. “It is not just about the Genocide Convention; “It's much broader than that.”
Hendricks reported from Jerusalem.
