January 11, 2024 Israel-Hamas war

South Africa has now finished presenting its case. Israel, which has denied the allegations, will respond on Friday.

Mr Vusi Madonsela, South Africa’s ambassador to the Hague ended day one of the hearing by detailing the country’s requests for provisional measures.

He requested the measures be considered "as a matter of extreme urgency".

Among the provisional measures requested include:

South Africa posed a challenge to the International Court of Justice's panel of judges, saying it is “hard to think of a case in recent history that has been so important for the future of international law.”

Towards the end of South Africa’s three-hour oral argument, Vaughan Lowe, one of the lawyers representing it, said now “is not a moment for the court to sit back and be silent,” and that its decision would have a bearing on the future of the court itself.

Lowe asked the court to grant provisional measures ordering Israel to suspend its military campaign in Gaza, to prevent further abuses of the rights of Palestinians while the court considers the full merits of the case.

“Israel says that Palestine and Palestinians are not its target, that its aim is to destroy Hamas. But months of continuous bombing, flattening entire residential blocks, and cutting off food and water and electricity and communications to an entire population, cannot credibly be argued to be a manhunt for members of Hamas,” Lowe said.

Addressing the various charges of hypocrisy that have been laid against South Africa, including why it has not also brought a charge of genocide against Hamas, Lowe explained this is a matter for the International Criminal Court – and not the ICJ.

“Hamas is not a state and cannot be a party to the genocide convention, and cannot be a party to these proceedings,” Lowe said. Whereas the ICJ hears cases brought by states accusing others of violating their UN treaty obligations, the ICC tries individuals for crimes including war crimes and crimes against humanity.

Lowe concluded by summarizing South Africa’s argument.

He stressed “the point is not simply that Israel is acting disproportionately – the point is the the prohibition on genocide is an absolute.”

Blinne Ní Ghrálaigh has addressed the court, outlining previous times the ICJ has implemented provisional measures to stop a country from committing genocide.

Among the cases Ní Ghrálaigh cited were when The Gambia accused Myanmar of genocide against Rohingya Muslims and Russia's invasion of Ukraine.  

"Madame President, members of the court, if the indication of provisional measures was justified on the facts in those cases that I have cited, how could it not be here? In a situation of much greater severity where the imminent risk of irreparable harm is so much greater?

"The imminent risk of death, harm and destruction that Palestinians in Gaza face today, and that they risk every day during the pendency of these proceedings on any view justifies, indeed compels the indication of provisional measures," she argued.

Ní Ghrálaigh continued to say that the international community had "repeatedly failed. It failed the people of Rwanda. It failed the Bosnian people and the Rohingya, prompting this court to take action. It failed again by ignoring the early warnings of the grave risk of genocide to the Palestinian people sounded by international experts since October 19 last year."

"The international community continues to fail the Palestinian people, despite the overt, dehumanizing, genocidal rhetoric by Israeli governmental and military officials, matched by the Israeli army’s actions on the ground," she said.

As a part of her closing remarks, Ní Ghrálaigh says "the world should be ashamed" by the situation in Gaza.

She shared two photographs with the court.

One is from a hospital in northern Gaza and has the words "whoever stays until the end, will tell the story, we did what we could. Remember us."

She then showed a photo of the destroyed whiteboard after it was hit by an Israeli missile, killing the note's author.

The International Court of Justice is in the first of its two-day hearing of proceedings brought by South Africa accusing Israel of genocide against Palestinians in Gaza.

It is an unprecedented case. Experts say it is the first time that the Jewish state is being tried under the United Nations’ Genocide Convention, which was drawn up after the Second World War in light of the atrocities committed against the Jewish people during the Holocaust.

If you're just joining us, here's what you need to know:

What's the case? South Africa is taking Israel to the ICJ, also known as the World Court, on claims that it is committing genocide against Palestinians in Gaza and failing to prevent and punish genocide. South Africa is outlining its case today, and Israel will defend itself on Friday.

What does Israel say? Israel has firmly rejected the accusation, calling it an "absurd blood libel." President Isaac Herzog said Tuesday there was “nothing more atrocious and preposterous” than South Africa’s claim.

Israel will present a case "using self-defense," he said, to show that it is doing its "utmost" under "extremely complicated circumstances" to avert civilian casualties in Gaza in its war against Hamas. 

What does South Africa want? South Africa says Israel’s acts in Gaza are genocidal “because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group.”

South Africa has asked the court to issue “provisional measures” ordering Israel to stop its war, which it said was “necessary in this case to protect against further, severe and irreparable harm to the rights of the Palestinian people.” A provisional measure is a temporary order to halt actions, or an injunction, pending a final ruling.

A ruling on genocide could take years to prove, but the injunction on the Gaza war that Pretoria has asked the ICJ for could come much sooner.

What's happened in court so far? South Africa’s Minister of Justice Ronald Lamola said that "South Africa unequivocally condemned the targeting of civilians by Hamas and other Palestinians and groups, and the taking of hostages on the 7th of October 2023."

Adila Hassim, one of the advocates representing South Africa, said Palestinians in Gaza have “been killed if they have failed to evacuate, in the places to which they have fled, and even while they have attempted to flee along Israeli-declared safe routes.”

The level of Israel’s killing is so extensive that nowhere is safe in Gaza,” she said, adding that the destruction was “beyond any acceptable legal – let alone humane – justification.”

Another lawyer representing South Africa, Tembeka Ngcukaitobi, said there was an “extraordinary feature” in this case: “Israel’s political leaders, military commanders, and persons holding official positions, have systematically and in explicit terms declared their genocidal intent.”

He referenced statements made by Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.

He said these statements “are then repeated by soldiers on the ground in Gaza as they engage in the destruction of Palestinians and the physical infrastructure of Gaza.”

South Africa has argued that if the International Court of Justice refuses to grant emergency measures in its genocide case against Israel, the court would “treat Palestinians differently, as less worthy of protection than others.”

It wants the court to order a halt in Israel's Gaza campaign, something the court could rule on in a matter of weeks.

Max du Plessis, one of the advocates representing South Africa, cited various cases in which the ICJ has granted “provisional measures” in order to protect the rights of peoples around the world.

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 Bosnians during the Balkan Wars in the 1990s.

South Africa has argued that the rights of Palestinians must be protected “from imminent and irreparable loss” while the court considers the full merit of the case, which could take years.

South Africa has stressed throughout the hearing that the Court need only to decide that Israel’s actions are “plausibly genocidal” for it to grant provisional measures.

“It is clear that at least some, if not all, of these acts fall within the convention’s provisions," she said.

If you are just joining us, South Africa has been laying out its genocide case against Israel at the International Court of Justice in The Hague.

The hearing has paused for a coffee break but will resume shortly.

A reminder - South Africa will outline its case today and Israel will defend itself on Friday.

Israel has reacted furiously to the case, calling it an "absurd blood libel."

Its President Isaac Herzog said Tuesday there was “nothing more atrocious and preposterous” than South Africa’s claim.

Israel will present a case "using self-defense," he said, to show that it is doing its "utmost" under "extremely complicated circumstances" to avert civilian casualties in Gaza. 

Ngcukaitobi went on to say there was an “extraordinary feature” in this case: “Israel’s political leaders, military commanders, and persons holding official positions, have systematically and in explicit terms declared their genocidal intent.”

He said these statements “are then repeated by soldiers on the ground in Gaza as they engage in the destruction of Palestinians and the physical infrastructure of Gaza.”

He 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 Ngcukaitobi told the court “refers to a Biblical command by God to Saul for the retaliatory destruction of an entire group of people known as the Amalekites.”

Ngcukaitobi cited a verse from the book of Samuel also referring to the Amalekites. “Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys,” reads the verse.

Ngcukaitobi then referenced quotes from Israeli Defense Minister Yoav Gallant.

"On 9 October, the Defense Minister Yoav Gallant gave a situation update to the army where he said that as Israel was imposing a complete siege on Gaza there would be no electricity, no food, no water, no fuel. Everything would be closed. Because Israel is fighting 'human animals,'" Ngcukaitobi told the court.

Ngcukaitobi continued: "Speaking to troops on the Gaza border he instructed them that he has released “all the restraints” and that Gaza won’t return to what it was before."

Another lawyer representing South Africa, Tembeka Ngcukaitobi, is now addressing the court.

He argues that South Africa is "not alone in drawing attention to Israel's genocidal rhetoric against Palestinians in Gaza."

"Israel has a genocidal intent against the Palestinians in Gaza," Ngcukaitobi told the court.

"That is evident in the way in which Israel's military attack is being conducted, which has been described by Ms Hasim."

"It is systematic in its character and form. The mass displacement of the population of Gaza, headed into areas where they continue to be killed and the deliberate creation of conditions that quote — lead to a slow death — unquote."

South Africa has been providing evidence it said shows a “pattern of genocidal conduct” by Israel.

Adila Hassim, one of the advocates representing South Africa, said Israel’s “actions show a systematic pattern of conduct from which genocide can be inferred."

In an 84-page filing to the ICJ, South Africa cited evidence it said showed Israel is committing genocide by killing Palestinians in Gaza, causing serious mental and bodily harm, forced evacuations, widespread hunger, and by creating conditions “calculated to bring about their physical destruction.” 

Hassim discussed some of the evidence presented by South Africa in its filing, including Israel’s air strikes in Gaza.

She said Palestinians in Gaza have “been killed if they have failed to evacuate, in the places to which they have fled, and even while they have attempted to flee along Israeli-declared safe routes.”

Hassim also cited videos and images she said showed Israeli soldiers “joyfully detonating entire apartment blocks and town squares, erecting the Israeli flag over the wreckage, seeking to reestablish Israeli settlements on the rubble of Palestinian homes, and thus extinguishing the very basis of Palestinian life in Gaza.”

She also cited experts who have claimed that more may die in Gaza because of disease and starvation than because of Israeli air strikes.