ABC News/John Lyons
Rarely has there been such a compelling legal and public relations battle as has just occurred at the International Court of Justice (ICJ) – two countries employing their best legal minds in a battle for reputation and the history books.
Both South Africa and Israel turned up to The Hague meticulously prepared – each side had invested millions of dollars and hundreds of hours for a legal and PR battle over whether Israel is currently committing genocide in Gaza.
South Africa accuses Israel of genocidal acts in Gaza
A continent away from the war in Gaza, South Africa accused Israel of committing genocide against the Palestinians and pleaded with the United Nations’ top court on Thursday to urgently order a halt to the country’s military operation.
The fact the hearing even took place was a victory for South Africa and a loss for Israel. The word genocide is not one with which any country wants to be associated.
The predominant view in Israel is that while it is not pleasant to have an allegation of genocide made, what Israel is doing in Gaza is what any country in a similar position would do — a response to a brutal attack on October 7 during which Hamas and others carried out atrocities ranging from killing and torturing to raping and kidnapping.
If others such as South Africa don’t like that, then that’s their problem, is the prevailing view.
South Africa’s position is that if no other nation is prepared to take on Israel over its war in Gaza, then they will. The view of the South African leadership, which authorised the case, is that having lived under apartheid for decades, South Africans know what it is to be oppressed without the rights of the ruling power.
South Africa argues – as it did in its presentations to the ICJ – that even before the devastating civilian casualties being suffered by those in Gaza, Palestinians in the West Bank and Gaza have been living under Israeli military occupation in the case of the West Bank and a crippling blockade which controls movement in the case of Gaza.
South Africa shares the view of David Cameron, who as UK prime minister said: “Gaza cannot and must not be allowed to remain a prison camp. People in Gaza are living under constant attacks and pressure in an open-air prison.”
The two days of presentations to the ICJ are unlikely to have changed too many opinions.
After three months, most people who follow these matters have locked themselves into one side or the other.
How does international law define genocide?
The hearing is taking place in the context of the Genocide Convention of 1948 – set up after the horrors of the Holocaust. Both Israel and South Africa are parties to the convention.
In order for South Africa’s case to be upheld, lawyers must successfully argue that Israel has perpetrated an act of genocide against Palestinian people that fits the following definition:
In the present convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Under the convention, it is not enough to prove genocide did not occur.
The convention also requires that Israel must satisfy the court that it has not conspired, incited or attempted to commit genocide and that it has no complicity in an act of genocide.
Since the October 7 attacks I have taken two trips to Israel and the West Bank and spoken to a range of people in Australia. Most people seemed to be polarised into one point of view or the other.
Those who support Israel tend to do so unconditionally, saying the massacre of October 7 was so horrific that any response is justified. They often say civilian casualties are the fault of Hamas.
Those who criticise Israel often argue it is committing genocide by its “disproportionate response” to October 7. They say that one massacre does not justify another.
The South African argument
South Africa says that the thousands of Palestinian women and children killed by Israel had nothing to do with Hamas’s attack.
It argues that Israel is involved in collective punishment of the 2.3 million people of Gaza. This is evidenced, it argues, by Israel declaring a complete blockade of Gaza after October 7
It argues that preventing water, food and medicines entering Gaza (before limited humanitarian deliveries were permitted) is itself a war crime
The ICJ case is accusing Israel of genocide, not war crimes, which are defined by a different set of laws of war.
Inside Gaza, a devastating new term has emerged: WCNSF
Inside Gaza’s overwhelmed hospital system, an influx of injured children arriving alone without any family has prompted doctors to coin a new term: Wounded Child, No Surviving Family.
Likewise, it says forcing the movement of people from one part of Gaza to another ahead a bombing campaign is likewise a war crime. (Israel would claim in response that it was doing this to minimise the number of civilian casualties.)
So horrible is the civilian reality in Gaza, South Africa argues, that this has spawned an acronym doctors use in hospitals which has become part of the language in Gaza – WCNSF, for Wounded Child No Surviving Family.
The Palestinian argument, as outlined by South Africa, is that Israeli leaders, from Prime Minister Benjamin Netanyahu down, have been using genocidal rhetoric.
South Africa’s legal team played for the court videos of Israeli soldiers celebrating the destruction of buildings and singing songs drawing on words used by Netanyahu and others – such as singing that there is no such thing as “uninvolved civilians”.
In other words, it showed Israeli soldiers in Gaza singing the words that had been uttered by their leaders in Israel.
That, the court was told, was proof of intent, listed in the convention.
South Africa clearly decided that the tone of its presentation to the court should not be combative. Its lawyers gave credit to the Israeli delegation for turning up to this special hearing of the ICJ.
And more than once its lawyers talked about the atrocities committed by Hamas on October 7. They also stressed that the accusation of genocide was not directed at Jews generally, or the Israeli public, but at the Israeli government and its military.
The South African presentation was forensic, drilling into minute detail of the impact on civilians of the Israeli attacks.
But the real power of the South African presentation – which went for about three hours before 17 judges – was that it used Israel’s own words and videos to argue its case.
Usually, with an allegation of genocide, intent is the most difficult thing to prove. But in this case South Africa has presented the words of Israel’s political and military leaders as Exhibit A.
What are South Africa’s allegations?
It alleges Israel’s actions “are genocidal in character because they are intended to bring about the destruction of a substantial part” of Palestinians in Gaza
The filing argues genocidal acts include killing Palestinians, causing serious mental and bodily harm, and deliberately inflicting conditions meant to “bring about their physical destruction as a group”
It says Israeli officials have expressed genocidal intent
Israel vehemently rejects the allegations.
The Israeli argument
Israel’s central narrative, which was drawn on at the ICJ, is that any country that has suffered the atrocities Israel suffered on October 7 would respond decisively and fiercely.
Israel says its aim is to ensure that never again would they suffer another such attack. The overwhelming sentiment of the Israel public supports punishing Hamas and causing such devastation to Hamas’s military capability that they would simply be unable to launch such an attack ever again.
Those who support this view say while every civilian casualty is a tragedy, Hamas hides its militants and weapons among civilians, and so it is inevitable that civilians will die. The high death rate of Palestinian civilians, that now tops 20,000, is because of Hamas, not Israel, they contend.
Could the genocide case against Israel have an impact on the war in Gaza?
International law experts say South Africa’s genocide case against Israel could put political pressure on Israel and its allies, forcing a change of tactics in the Gaza war.
Israel’s defence is that it has been put in an almost impossible position: on October 7, unspeakable atrocities were committed on innocent people, with 1200 being killed and another 240 taken at gunpoint to Gaza and held as hostages — considered a war crime. An estimated 100 are still being held hostage, without access to Red Cross or other medical access.
Rather than Israel committing genocide, it is Hamas with genocidal ambitions, committed in their charter to the destruction of Israel.
Israel played to the court a Hamas leader who made clear that Hamas will use any opportunity it has to commit another attack on Israel.
Israel says South Africa’s presentation before the ICJ is one of “profound distortion.”
The Israeli presentation was also heavily photographic – for many viewers, it would have been the first time they had seen some of the pictures of Hamas weapons being hidden in the bedrooms of Palestinian children.
One of the most powerful parts of the Israeli presentation was a photographic montage of the hostages – including children and babies
Israel contends – correctly – that the taking of civilians during a war is a war crime. The International Criminal Court statute of July 1, 2002, defines the taking of hostages in an international or internal conflict as a war crime, which would come under the court’s jurisdiction.
There were, however, aspects of Israel’s presentation that jarred with published comments by Israeli officials. For instance, part of Israel’s case to the ICJ contended one of their key military agencies – the Coordinator of Government Activities in the Territories (COGAT) – gives priority to a role to help to ensure the welfare of Palestinians.
Yet the man who runs that welfare agency, Major General Ghassan Alian, said recently: “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.”
This leads to a disconnect between the head of COGAT saying there will be no water, and Israel saying in its ICJ submission that water is not a problem in Gaza. Israel’s legal team will need to to argue that someone who describes people as “human animals” and promises “destruction and hell” also has the welfare of those people as a high priority.
Likewise, the claim in the Israeli presentation that a team was dedicated to repairing damaged infrastructure – including water supplies – is at odds with the reports over months about the children who have not had any fresh water to drink, or the hospitals whose babies are reported to have died because their formula was contaminated with bad water.
What happens next?
Israel’s task before the ICJ to prove that it is doing everything possible to avoid civilian casualties while reports suggest 29,000 bombs were dropped on Gaza between October 7 and mid December.
US intelligence sources have estimated 40 to 45 per cent of the 29,000 bombs dropped on Gaza were “dumb bombs” – unguided munitions that posed a greater threat to civilians as they are not fired at precise targets
The Gaza Strip is small — 365 square kilometres. These figures equate to an average of 79 bombs dropped per square kilometre on one of the most densely populated places in the world.
Many of these are 2000-pound bombs — four times heavier than the largest bombs the US dropped on Mosul during the war against ISIS in Iraq.
As Israel addresses genocide charges in the ICJ, bombs like these, normally used sparingly because of their potential to cause high numbers of casualties, will potentially be used to argue a campaign of indiscriminate bombing — the very phrase US President Joe Biden has used against Israel — which is prohibited by international law.
So what happens next? Now the ICJ will consider the arguments made last week by both sides.
While it could take years for the ICJ to make any final ruling on whether Israel has committed genocide, what South Africa argued is that it wants “provisional measures” against Israel that include ordering an immediate ceasefire while the court can examine in greater detail the allegation of genocide.
South Africa wants the majority of the 17 judges to rule that it has found a prima facie case that genocide may be occurring and that therefore there should be a ceasefire until the court can examine the claim
This would have the effect of an emergency ruling — a version of the legal notion of “injunctive relief”.
Injunctive relief is often used by a court to stop an individual or company from taking an action until the court can decide the details. If granted, this could be one of the most dramatic injunctions in history.
Indications are that the court could make such a ruling within weeks.
But Israel would not be bound by any such ruling, despite being a party to the Genocide Convention.
Nonetheless, Israel clearly took last week’s hearing seriously. It brought to The Hague a legal team of 27 members; Israel can see the reputational damage that a finding that it has been guilty of genocide would cause – even a finding that it may be guilty of genocide — regardless of whether it accepts any recommendation of a ceasefire.
One of Israel’s international spokespeople, Eylon Levy, captured the mood of the delegation when he posted that photo of the team on social media accompanied by the description of “our superstar legal team rebutting South Africa’s absurd blood libel at the ICJ.”
Israel will do everything within its power to stop that “blood libel” from becoming a guilty verdict under international law.