Israel on Friday rejected what it called the “grossly distorted” accusation of genocide leveled against it by South Africa, telling the United Nations’ top court the case was an attempt to “pervert the meaning” of the term.
In the second and final day of hearings at the International Court of Justice (ICJ), Israel argued its war in Gaza was fought in self-defense, that it was targeting Hamas rather than Israeli citizens, and that its leadership had not displayed genocidal intent.
South Africa on Thursday had alleged Israel’s leadership was “intent on destroying the Palestinians as a group in Gaza,” and that its aerial and ground assaults on the enclave were intended to “bring about the destruction of its Palestinian population.”
Israel said the case was “a concerted and cynical effort to pervert the meaning of the term ‘genocide’ itself.” It asked the court, which sits in The Hague, the Netherlands, to dismiss the case as groundless and refuse South Africa’s request for the court to order a halt to the war.
In a statement issued after the second day of hearings at the ICJ, a German government spokesperson said that Germany “expressly rejects” allegations that Israel is committing genocide in Gaza.
Spokesperson Steffen Hebestreit said Germany acknowledges diverging views in the international community on Israel’s military operation in Gaza but said that “the German government decisively and expressly rejects the accusation of genocide brought against Israel before the International Court of Justice.”
The ICJ was established in 1945 in the wake of World War II and the Holocaust. It hears cases brought by states accusing others of violating their UN treaty obligations. South Africa and Israel are signatories to the 1948 Genocide Convention, meaning they are obliged not to commit genocide and to prevent and punish it.
In its opening remarks, Israel said it was “singularly aware” of why the genocide convention was adopted. “Seared in our collective memory is the systematic murder of 6 million Jews, as part of a premeditated and heinous program for their total annihilation,” said Tal Becker, a lawyer representing Israel.
But Israel argued the convention was adopted only to “address a malevolent crime of the most exceptional circumstances,” and was “not designed to address the brutal impact of intensive hostilities” on civilians during warfare.
“We live in a time when words are cheap,” said Becker. “But if there is a place where words should still matter, where truth should still matter, it is surely a court of law.” He said South Africa’s case was an “attempt to weaponize the term ‘genocide’ against Israel.”
The UN defines genocide as an act “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” and says the term was developed in response to the Nazis’ systematic murder of Jewish people during the Holocaust.
A final ruling on the case will take years, and this week’s hearings relate only to South Africa’s request for “provisional measures,” which act like a restraining order to stop a dispute from escalating while the court considers the full case based on its merits, which could take years.
For provisional measures the court need only decide if prima facie, or “at first glance,” the acts complained of – including Israel’s use of 2,000-pound bombs and its restriction of food and water to Gaza – could fall foul of the genocide convention. “It is necessary to establish only whether at least some of the acts alleged are capable of falling within the provisions of the convention,” South Africa argued Thursday.
South Africa has asked the court to order Israel to suspend its military campaign in Gaza. But even if the court does find it has prima facie jurisdiction, the provisional measures it decides would not necessarily be those requested by South Africa.
The ICJ has in the past granted similar requests. In January 2020, the court granted The Gambia’s request for provisional measures to protect the Rohingya people remaining in Myanmar from genocide. The court has granted similar measures to protect Ukrainians from ongoing Russian aggression, and to Bosnians during the Balkan Wars in the 1990s.
The court’s rulings are final and binding, but in practice it has no way of enforcing them. A 2022 report by Human Rights Watch found continued abuses against the Rohingya remaining in Myanmar, despite the provisional measures. And, despite the court in March 2022 ordering Russia to immediately suspend its invasion of Ukraine, Moscow’s war rages nearly two years later.
Genocidal acts ‘perpetrated against Israel’
Israel said it felt “compelled” to share with the court a “fraction of the horror” meted out on Israeli civilians by Hamas during its murderous rampage, when more than 1,200 people were killed and 240 hostages were taken back to Gaza.
Becker, the lawyer, said Israel wanted to share evidence of Hamas’ atrocities “not because these acts, however sadistic and systematic, release Israel of its obligations to uphold the law as it defends its citizens and territory,” but because it was necessary to understand “the nature of the threat Israel is facing.”
Legal experts warned ahead of the trial that focusing excessively on Hamas’ October 7 attacks would not benefit Israel’s case because it would be beside the point. South Africa had stressed that “nothing can ever justify genocide, no matter what some individuals within the group of Palestinians in Gaza may have done.”
Nonetheless, Israel shared multimedia evidence of the “carnage and sadism” committed by Hamas militants and of the “genocidal intent” its leadership “proudly declared.” Hamas’ founding charter mandates the killing of Jews and the destruction of Israel.
The court was shown a video of an interview shortly after October 7, in which Ghazi Hamad, a senior Hamas leader, told a Lebanese TV channel: “We will do this again and again.” He said the attack was “just the first time and there will be a second, a third, a fourth.”
“If there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel,” said Becker.
No ‘genocidal intent’
Much of South Africa’s argument focused on the alleged genocidal intent of Israeli leadership, which it said was echoed in the actions of its military. Israel’s offensive in Gaza has killed more than 23,000 people since October 7, according to Palestinian officials.
South Africa cited Israeli Prime Minister Benjamin Netanyahu’s address to Israeli forces on October 28, ahead of the imminent launch of its ground offensive in Gaza. “Remember what Amalek did to you,” Netanyahu said in his address, which South Africa said was a biblical reference to the divine command from God for the retaliatory destruction of the Amalekites.
Malcolm Shaw, representing Israel, said the language was merely “rhetorical” and pointed instead to other statements by Netanyahu, which he said “demonstrates the precise opposite of genocidal intent.”
“Any careful review of the official and binding policy decisions made by the relevant authorities in Israel clearly evidence that such decisions lack any genocidal intent. The contrary is true,” he said.
Israel stressed it was complying with international humanitarian law and attempting to minimize civilian casualties, despite Hamas’ embedding its military operations in buildings like schools and hospitals.
South Africa on Thursday said the evacuation order issued by Israel on October 13 to residents in northern Gaza was “genocidal,” since it “required immediate movement… while no humanitarian assistance was permitted.”
Israel said it was “astonishing” that “a measure intended to mitigate harm to the civilian population” had been taken by South Africa as proof of the country’s genocidal intent.
‘Absurd’ provisional measures
Israel concluded its hearing by asking the court to refuse South Africa’s request for provisional measures, since it said these would constrain Israel’s ability to defend itself while allowing Hamas to continue attacks.
If “resort to force in self-defense against an enemy hiding behind civilians can be portrayed as genocide and trigger provisional measures,” then “an inevitable tension will be created between the genocide convention and states defending themselves against the ever-increasing capacities of terrorist organizations,” argued Gilad Noam, an Israeli lawyer.
Christopher Staker, another of Israel’s lawyers, said provisional measures ought to be a “temporary shield” to preserve rights, but were in this case being used as “a sword to give an advantage to one party in a conflict over another.”
“It’s absurd to suggest that the only way to ensure observance of the genocide convention in a military operation is to prevent the operation from being conducted at all,” he said.
Staker also argued that, in ordering Israel to “desist” from committing genocidal acts, South Africa had implied that “violations of the convention by Israel are occurring” and so sought “an implied ruling on the merits” of the full case.
It could be days or weeks before the ICJ’s 15-judge panel – expanded by an additional judge from each side in this case – issues a decision on the emergency measures.
Correction: This story has been corrected to reflect that the case is before the International Court of Justice (ICJ), not the International Criminal Court (ICC).
