Arguments in South Africa v. Israel (2024)
Image Source: UN Web TV
DAY 1: January 11, 2024
SOUTH AFRICA’S ARGUMENTS
On January 11, 2024, the International Court of Justice at The Hague began hearing arguments advanced by South Africa in its application to the court that Israel is committing genocide on Gaza. The ICJ
South Africa's legal team includes Adila Hassam, Tembeka Ngcukaitobi, Max Du Plessis, John Dugard, Tshidiso Ramogale, Sarah Pudifin-Jones and Lerato Zikalala, while Irish lawyers Blinne Ni Ghralaigh and British barrister Vaughan Lowe. Israel will be represented by British Lawyer Malcolm Shaw.
The judges include: Joan Donoghue (President of the ICJ, USA), Kirill Gevorgian (Vice President of the ICJ, Russia), Abdulqawi Yusuf (Somalia), Julia Sebutinde (Uganda), Mohamed Bennouna (Morocco), Xue Hangin (China), Peter Tomka (Slovakia), Ronny Abraham (France), Leonardo Nemer Caldeira Brant (Brazil), Dalveer Bhandari (India), Patrick Lipton Robinson (Jamaica), Hilary Charlesworth (Australia), Nawaf Salam (Lebanon), Yuji Iwasawa (Japan), and Georg Nolte (Germany). The ICJ's rules allow each country that is party to a case that does not have a judge of its nationality on the bench to nominate an ad hoc judge. South Africa appointed Dikgang Moseneke (South Africa's former deputy Chief Justice) and Israel picked Aharon Barak (former President of its Supreme Court).
South Africa’s arguments centred on the Genocide Convention and Israel’s violation of it, in pursuit of provisional measures. It also went so far as to apologize for its delay in initiating proceedings - a powerful moment recognizing accountability under a global, jus cogens and erga omnes framework.
Arguments advanced by Vusimuzi Madonsela
Madonsela opened his argument by thanking the court for convening for the hearing at the earliest possible date to consider South Africa’s requests for the indication of provisional measures. He affirmed that South Africa has recognised the ongoing Nakba of the Palestinian people through Israel’s colonisation since 1948. Further, he noted that South Africa acknowledges that the genocidal acts and permissions by the State of Israel inevitably form “part of a continuum of illegal acts perpetrated against the people, Palestinian people since 1948.” Setting the context, he noted that this application to the ICJ places Israel’s genocidal acts and omissions within the ambit of Israel’s 75-year long apartheid, 56-year long occupation, and 16-year long siege imposed on the Gaza strip.
Arguments advanced by Ronald Lamola, Justice Minister, South Africa delivers opening statement
Ronald Lamola, South Africa’s justice minister, delivered the opening statements of the case. Setting Mandela’s words as the foundation, he shared: “In extending our hands … to the people of Palestine, we do so in full knowledge that we are part of a humanity.” He indicated that Mandela’s words here reflect the spirit with which South Africa acceded to the Convention on the Prevention and Punishment of the Crime of Genocide in 1998, and that this is the spirit with which South Africa has approached the ICJ As a party to the Genocide Convention. South Africa sees this as a commitment to all, to the people of Palestine and Israelis alike. The minister affirmed that the violence and destruction of Palestine and Israel did not begin on October 7, 2023, and that the people of Palestine have experienced systematic oppression and violence for 76 years, on October 6, 2023, and every day since October 7, 2023. He noted that on the Gaza Strip, at least since 2004 onward, Israel continues to exercise control over “the airspace, territorial waters, land crossings, water, electricity and civilian infrastructure, as well as key government functions.” He indicated that Israel’s response to Hamas was disproportionate, stating that no armed attack on a state territory – howsoever serious – even an attack involving atrocities, can justify or defend breaches of the Genocide Convention, no matter whether a matter of law or morality. He affirmed that Israel’s response to the October 7 attack has crossed this line and given rise to the breaches of the Genocide Convention. Further, he grounded South Africa’s application to the court as it had been “faced with such evidence” and has “duty to do what we can do to prevent genocide.” He finally affirmed that South Africa welcomed the fact that Israel has engaged with the case to have the matter resolved by the ICJ.
Arguments advanced by Adila Hassim, Advocate:
Adila Hassim affirmed that this case underscores the very “essence of our shared humanity” as crystallized in the preamble to the Genocide Convention. She indicated that South Africa’s key contention is that Israel has transgressed Article 2 of the Genocide Convention by committing actions that fall within the scope and ambit of the definition of genocide under the convention. She affirmed that Israel’s actions demonstrate systematic patterns of conduct from which genocide can be inferred.
She explained that the first genocidal act was mass killing of Palestinians in Gaza, while showing images of mass graves where bodies were buried, and mentioned that several of these bodies were often unidentified. She also noted that Israel deployed 6,000 bombs per week, that at least 200 times, it had deployed 2,000-pound bombs in southern Gaza, which it designated safe. She said: “No one is spared. Not even newborns. UN chiefs have described it as a graveyard for children.” Hassim presented a map of Gaza to the court, and noted that Gaza is a narrow strip of approximately 365 sq. km, and is one of the two constituent territories of the occupied Palestinian territories occupied by Israel since 1967. She explained that Israel exercises control over Gaza’s territorial waters, land crossings, water, electricity and electromagnetic sphere and some of the infrastructure in Gaza as well as over key governmental functions. She also explained that the entry and exit into and outside of Gaza by air and sea is prohibited, and that Israel operates the only two crossing points. Finally, she noted that Gaza is one of the most densely populated places in the world, and is home to approximately 2.3 million Palestinians, almost half of them children.
Adila then named Israel’s second genocidal act, namely its infliction of serious bodily or mental harm to Palestinians in Gaza (which she noted is in violation of Article 2B of the Genocide Convention); its attacks, which have left close to 60,000 Palestinians wounded and maimed, most of these people being women and children – while the healthcare system has collapsed; its act of arresting, blindfolding, forcibly undressing, and loading Palestinian civilians including children, onto trucks before taking them to unknown locations. She notes that the suffering of the Palestinian people is undeniable.
Arguments Advanced by Tembeka Ngcukaitobi, Advocate
Tembeka Ngcukaitobi, the second lawyer representing South Africa, noted that South Africa is not alone in drawing attention to Israel’s genocidal rhetoric against Palestinians in Gaza. He mentioned that 15 UN special rapporteurs and 21 members of the UN working groups had all issued warnings that events in Gaza reflect a genocide in the making. He then explained that the genocidal intent against the Palestinians in Gaza is evident from the manner in which Israel’s military attack is being conducted, and that there is a clear pattern of targeting family homes and civilian infrastructure, laying waste to vast areas of Gaza. He stated that 1% of the Palestinian population in Gaza has been systematically decimated, and that 1 in 4 others have been injured since October 7. He indicated that Israel’s political leaders, military commanders, and persons in official positions had all systematically and explicitly terms declared their genocidal intent, and that their statements were repeated by soldiers on ground in Gaza while they destroyed the people and physical infrastructure of Gaza. Ngcukaitobi also presented Israeli Prime Minister Benjamin Netanyahu’s comments on October 28, 2023, when he urged ground troops preparing to enter Gaza to “remember what Amalek has done to you,” and explained that this is a Biblical command by God to Saul for the retaliatory destruction of an entire group of people. He explained that this was not an idle invocation of genocide, and presented a video of Israeli soldiers chanting and singing, “May Gaza be erased”.
He explained that genocidal rhetoric is common in the Israeli Knesset, as members have repeatedly called for Gaza to be wiped out, flattened, erased, and crushed, and have also deplored anyone who felt sorry for the uninvolved Gazans, while repeatedly asserting that there are no innocent in Gaza. He noted that Israeli lawmakers have mercilessly called for bombing from the air, with some advocating for the use of nuclear weapons. Ngcukaitobi noted that journalists and commentators had declared women, pregnant women and babies enemies, and affirmed the need to “turn the Gaza Strip into a slaughterhouse.” He noted that Israel’s intentional failure to condemn, prevent, and punish such genocidal incitement was in itself a grave violation of the Genocide Convention.
He explained that Israeli soldiers have considered this language and their actions acceptable as the destruction of Palestinian life in Gaza is articulated state policy. He also indicated the statement of 95-year-old Israeli Army reservist Ezra Yahin, a veteran of the Deir Yassin massacre against the Palestinians in 1948, to the soldiers ahead of the ground invasion in Gaza, where he echoed the same sentiment, and said: ‘Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children These animals can no longer live. If you have an Arab neighbour, don’t wait, go to his home and shoot him. We want to invade not like before. We want to enter and destroy what’s in front of us. Destroy houses, then destroy the one after it with all of our forces complete destruction. Enter and destroy’.”
Arguments advanced by Professor John Dugard
Professor John Dugard addressed the question of jurisdiction. He began by reminding the court that obligations under the Genocide Convention are “erga omnes, obligations owed to the international community as a whole,” and indicated that “State parties to this convention are obliged not only to desist from genocidal acts but also to prevent them.” He explained that South Africa had tried to reach the Israeli government via the embassy before filing the case, and that the response “failed to address the issues raised by South Africa and neither confirmed nor denied the existence of a dispute.” He also noted that on January 5, South Africa requested a bilateral meeting, to which Israel responded saying that representatives of both countries “coordinate” after the close of hearings at the ICJ. South Africa indicated that such a meeting would serve no purpose.
Arguments advanced by Professor Max Du Plessis
Max Du Plessis noted that Palestinians in Gaza are a substantial and important part of the Palestinian national, racial and ethnic group, and “simply but profoundly, are entitled to exist.” He noted that situating the right to exist and the threats to that right requires the court to appreciate the context within which South Africa brought this application. He explained that events in Gaza at the moment are not accurately framed as a “simple conflict between two parties,” but that it “entails, instead, destructive acts perpetrated by an occupying power, Israel, which has subjected the Palestinian people to an oppressive and prolonged violation of their rights to self-determination for more than half a century.” He also indicated that these violations occur in a world where Israel, for years, regarded itself as beyond and above the law. Du Plessis also indicated that multiple statements by UN bodies and experts, human rights organizations, and institutions and states had “have collectively considered the acts committed by Israel to be genocidal or at the very least warned that the Palestinian people at risk of genocide”. He referred to provisional measures and indicated that the rights asserted by South Africa under the Genocide Convention and their protection fully corresponds with the object and purpose of the convention. He also indicated that the acts by Israel complained of are capable of being characterised as at least plausible genocidal, and that the evidence of the specific genocidal intent is clear from the statements by Israeli government officials and soldiers towards Palestinians in Gaza and which may be characterised as at the very least plausibly genocidal. He stated that this “at least plausible genocidal intent can also be deduced from the pattern of conduct against Palestinians in Gaza” and that it is also “at the very least, plausible that Israel has failed to prevent or to punish genocide, conspiracy to commit genocide, direct and public incitement to genocide, attempted genocide and complicity in genocide.” He affirmed that “it is further plausible that South Africa has an obligation to prevent genocide including by taking all reasonable measures within its powers to influence effectively the actions of persons perpetrating and likely to commit genocide or engaging in direct public incitement to genocide.” He concluded indicating that South Africa’s obligation is “motivated by the need to protect Palestinians in Gaza and their absolute rights not to be subjected to genocidal acts.” Du Plessis reminded that the Organization of Islamic Countries, Malaysia, Turkey, Jordan, Bolivia, The Maldives, Namibia, Pakistan, the Arab League, and Brazil support South Africa’s case.
Arguments advanced by Bline Ni Ghralaigh
Bline Ni Ghralaigh affirmed the “urgent need for provisional measures to protect Palestinians in Gaza from the irreparable prejudice caused by Israel’s violation of the genocide convention”. She alluded to the words of the UN Secretary General and its officials in describing the situation in Gaza as “a crisis of humanity,” “a living hell,” “a bloodbath,” “a situation of utter deepening and unmatched horror where an entire population is besieged and under attack, denied access to the essentials for survival on a massive scale.”
Bline Ni Ghralaigh warns of a public health disaster in Gaza with infectious diseases spreading. She presented a range of statistics as clear evidence of the irreparable prejudice.
She also indicated that Gaza represents a moral failure – a failure that has repercussions for the people of Gaza and generations to come, who will never forget these 90 days. “The world should be absolutely horrified, the world should be absolutely outraged. There is no safe space in Gaza, and the world should be ashamed.” She concluded by sharing two photographs: One of a white board in a hospital in Northern Gaza, which was targeted by Israel. She said that it bears a handwritten message by an MSF doctor saying: “Whoever stands until the end, will tell the story. We did what we could. Remember us.” She shared a second photograph of the same white board, shattered to pieces, after an Israeli strike on the hospital on November 21 that killed the author of the message Dr Muhamad Abu Nujeila, and two of his colleagues.
South Africa has done what it could, and is doing what it can, and asks the court to do what is in its power to do, to prevent further irreparable harm against the people of Gaza.
Arguments advanced by Vaughan Lowe
Vaughan Lowe reminded the court that at this stage, it does not “have to determine whether or not Israel has, or has not, acted contrary to its obligations under the Genocide Convention” and that this can only be done “at the merits stage.” However, he drew attention to the requirements for provisional measures before the ICJ, established by judicial precedent and jurisprudence and indicate South Africa’s alignment with them. He explained the provisional measures South Africa is requesting, namely that Israel be required to (a) suspend its military operations in and against Gaza (b) ensure that individuals under its control do not engage in direct and public incitement to commit genocide, and hold them accountable as required by the Convention if they do; (c) take all measures within its power including rescinding of relevant orders to prevent the deprivation of access to adequate food and water; (d) preserve evidence, (e) submit reports on the measures taken to abide by the provisional measures ordered; and (f) refrain from taking actions which might aggravate or extend the dispute before the Court.
He noted that this case specifically concerns Israel's actions in Gaza, which is a territory that "three weeks ago, the UN Security Council stressed as an integral part of the territory occupied in 1967" by Israel. He also explained that South Africa cannot request an order from the ICJ for any action against Hamas because it is not a state.
Closing Statement by Vusimuzi Madonsela
Vusimuzi Madonsela, agent for South Africa, ended the arguments by listing the consequences of not intervening in Gaza war. He noted that South Africa has come to the ICJ “to prevent genocide and to do so in the discharge of the international obligation that rests on South Africa and all other states under the convention.” He named the consequences of not indicating clear and specific provisional measures and not taking steps to intervene while Israel disregards its international obligations before our eyes would, “very grave indeed for the Palestinians in Gaza who remain at real risk of further genocidal acts for the integrity of the convention, for the rights of South Africa and for the reputation of this court which is equipped with and must exercise its powers to afford an effective realisation of the rights under the convention.”
Day 2: January 12, 2024
ISRAEL’S ARGUMENTS
Arguments advanced by Tal Becker, legal adviser of the Israeli Ministry of Foreign Affairs
Tal Becker argued that Israel has a right to self defence, and that if a claim of genocide can be made, it is that Israel has suffered such acts by Hamas. He suggested that South Africa has relations with Hamas despite it being declared a terrorist group, and said that Hamas perpetuates “genocidal terror.” He also argued that Israel has a right to self defense, using the written words of Vaughan Lowe, who noted that a right to self defense exists against acts carried out by any actor be it state or nonstate actor. He said that South Africa has put forward a “distorted factual and legal picture” and attempted to weaponise the term genocide against Israel, and that Hamas committed a “wholesale massacre”. Becker claims that the case made by South Africa “ignored” the events of October 7. He also indicated that Israel will share raw footage of Hamas’s October 7 attack during today’s hearing. Tal Becker said that it is important for the court to see some of the footage to give insight into the outbreak of the war in Gaza. He said calls for provisional measures for Israel to end fighting in Gaza “cannot stand” because it has the right to defend itself, and that the court should apply provisional measures against South Africa, accusing it of maintaining close ties with Hamas. He claimed that Hamas has systematically and unlawfully embedded its military operations, fighters and assets throughout Gaza and that Hamas uses civilian infrastructure and fails to protect its civilians. Becker claimed that Israel is operating in Gaza to protect civilians. He ended his arguments suggesting that “Israel is in a war of defence against Hamas, not against the Palestinian people” and that South Africa’s case was a “libel”.
Arguments advanced by Malcolm Shaw, Professor of International Law, Leicester University
Malcolm Shaw claimed that the correct context under which to view Israel’s war on Gaza is Hamas’s October 7 attack. He said: “While Hamas’s attack does not give Israel the right to breach international law, it does mean Israel has the right to defend itself in line with humanitarian law.” Shaw also claimed that the case against Israel relates only to charges of genocide, which “stands alone among violations of international law as the epitome of evil”. If the charge of genocide is levelled incorrectly, “the essence of this crime would be lost.” In an attempt to suggest that the ICJ has jurisdiction over the case, Shaw claimed that South Africa has approached this matter as if there was an ongoing dispute with Israel. He claims that there was no dispute, but instead, a “unispute.” Shaw also called into question South Africa’s claims that it tried to contact Israel and open a dialogue, and claimed that Israel tried to open bilateral talks, but that South Africa instead proceeded with the ICJ case. He claimed that if South Africa had taken up Israel’s offer, the parties may have decided there was no dispute to take up in court. Shaw also suggested that Israel warns civilians before bombing them, referencing dropping leaflets as an example, and said: “Its practice is to mitigate civilian harm, such as warning civilians of impending action by the extensive use of telephone calls, leafleting and so forth.” He claimed that Israel’s practice is to “mitigate civilian harm.” However, he claimed, that Israel’s intention to act to defend itself certainly exists, and the intention to deal with Hamas’ armed fighters is undeniable. Shaw claimed: “If Israeli forces have broken any rules of conflict then the matter will be tackled at the appropriate time by ‘Israel’s robust and independent legal system’” and that Israel’s actions are in accordance with international humanitarian law and are “proportionate.” He also claimed that “A soldier’s genocidal views cannot reflect a state’s intent, because he is lower in the command structure” and that 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.”
Shaw claimed that in considering South Africa’s claims that Israel is perpetrating genocide, it must consider the conduct and directives of its leaders, and added that possible violations by individual soldiers do not necessarily reflect state policy. He also pointed to several statements by Israeli army commanders and ministers calling for the army to focus on military targets and minimise civilian casualties.
Arguments advanced by Galit Raguan, Acting Director of the International Justice Division, Israel’s Justice Ministry
Galit Raguan began her argument by blaming Hamas for the high civilian toll in Gaza. She noted that urban warfare will always result in civilian harm and that they “may be the unintended, but lawful result of attacks on military targets. They do not constitute genocidal acts”. She claimed that the civilian toll is worsened in Gaza because of Hamas’ strategy of embedding itself among the civilian population. Raguan rejected South Africa’s statement that Israel “deliberately and unlawfully” destroyed homes, claiming that harm caused to local military objectives and as a result of Hamas’ actions is not evidence of genocide. She also claimed that Hamas used hospitals for military purposes, and that Israel had not bombed hospitals, but rather that damage and harm took place “as a result of hostilities in the vicinity of hospitals. She also, like Shaw, said that Israel provides warnings ahead of launching an attack.
Arguments advanced by Omri Sender, Lawyer, S. Horowitz & Co., Tel Aviv, Israel
Omri Sender claimed that Israel “no doubt meets the legal test of concrete measures, aimed specifically at recognising and ensuring the rights of the Palestinian civilians in Gaza”. He also said that Israel had ensured the entry of humanitarian aid into Gaza, claiming that there has been no restriction on the amount of water that may enter the Gaza Strip. He also said that food trucks have been able to enter the strip and the sick and injured have been allowed to cross into Egypt.
Arguments advanced by Christopher Staker, International Law Practitioner
Christopher Staker stated that South Africa’s appeal for Israel to immediately suspend its military operations in Gaza are “astonishing.” He focused on the provisional measures South Africa has asked for, and asked the court: “Can provisional measures require a state to refrain from exercising a plausible right to defend itself?” He then listed the following reasons explaining why Israel believes that there should not be provisional measures: (a) Hamas, designated a terrorist organisation by Israel and some other countries, committed “a large-scale terrorist attack” on Israel (b) Israel’s military operation is “a right to defend itself” and is in compliance with international humanitarian law (c) This is not a case where provisional measures could require both parties to a conflict to exercise mutual restraint, because “Hamas intends to carry out continuing attacks against Israel and its citizens” (d) Provisional measures would deprive Israel of the ability to “contend with the security threat against it and end attempts to rescue captives from Gaza” and (e) The suspension of military operations would give Hamas more time to build its capabilities, enabling it to pose an even greater threat.
Arguments Advanced by Gilad Noam, Senior Director, International Justice Division, Office of the Deputy Attorney General, Ministry of Justice of Israel
Gilad Noam claimed that South Africa had failed to show that “provisional measures” should be put in place to protect Palestinians in Gaza from further harm, for the following reasons (a) South Africa has not shown any dispute between Israel and South Africa and “tried to mislead the court into thinking it existed” (b) South Africa had failed to meet the conditions of plausible right to be protected in the current circumstances and (c) The events that form the subject of these proceedings take place within the framework of a war instigated by Hamas, governed by the legal framework of international humanitarian law and do not fall within the remit of the Genocide Convention.
