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South Africa is bringing Israel before the International Court of Justice, seeking an emergency order to call off the invasion.
In two days of hearings, South Africa is presenting its case in a three-hour session on Thursday before Israel takes the floor in reply on Friday.
Leading South Africa’s delegation, its Justice Minister Ronald Lamola told the court Israel’s offensive had gone beyond a legitimate response to Hamas’s attack on October 7.
“No armed attacks on a state’s territory – no matter how serious, even an attack involving atrocity crimes – can provide a justification for or defence” for breaches of the 1948 Genocide Convention, Mr Lamola said.
“Israel’s response to the October 7, 2023 attack has crossed this line.”
In testimony by several lawyers and officials, South Africa told the court:
· Israel is committing genocide by killing and wounding Palestinians and denying food, shelter and healthcare so that Gaza “cannot sustain life”
· The military campaign has laid waste to Gaza “beyond any acceptable legal, let alone humane, justification”
· Israel’s order for Palestinians to move south in the first phase of the Gaza offensive was “itself genocidal”
· Aggressive remarks by Israel’s political and military leadership show it has a genocidal intent towards Palestinians
·Actions by Israel since October 7 sit in a broader context of a “75-year apartheid” against Palestinians and a “16-year siege” of Gaza
· The case is a matter for the ICJ because South Africa is in dispute with Israel on whether a genocide is occurring and an “objective determination of the facts” is required.
A 17-judge panel led by US lawyer Joan Donoghue and Russia’s Kirill Gevorgian is hearing the arguments in the Peace Palace in the Dutch administrative capital.
Two ad hoc judges were sworn in before proceedings began, with each side able to nominate someone for the bench if there is no judge of that nationality already.
Israel chose its former supreme court president Aahron Barak, while South Africa’s former deputy chief justice Dikgang Moseneke is also hearing the case.
An 84-page filing by South Africa accuses Israel of “killing Palestinians in Gaza, causing them serious bodily and mental harm, and inflicting on them conditions of life calculated to bring about their physical destruction”.
Vusimuzi Madonsela, South Africa’s ambassador in the Netherlands, said Israel was “subjecting the Palestinian people to apartheid”, an allegation drawing on South Africa’s history that Israel rejects.
The future for people in Gaza “depends on the decision this court will make on this matter,” he said.
On the eve of the hearing, Israel’s Prime Minister Benjamin Netanyahu sought to calm international unease by saying Israel had “no intention of permanently occupying Gaza or displacing its civilian population”.
“Israel is fighting Hamas terrorists, not the Palestinian population, and we are doing so in full compliance with international law,” he said.
What is South Africa’s case?
South African lawyer Adila Hassim said Israel’s campaign amounted to “nothing short of destruction of Palestinian life” as she laid out the specific allegations of genocide.
Killing and wounding of people Palestinians has been accompanied by displacement and a deliberate campaign to “impose conditions on Gaza that cannot sustain life”, Ms Hassim told the ICJ judges.
Referring to Israel’s command for Palestinians to move south in the first phase of its ground invasion, she said: “The order itself was genocidal”.
A lack of aid leading to hunger, the denial of adequate shelter and sanitation, and attacks on Gaza’s healthcare system, are also part of a genocidal campaign, the court heard. (edited)
Seeking to convince the court that Israel is intent on genocide, South African lawyer Tembeka Ngcukaitobi quoted a series of statements by Israeli political and military leaders in which they allegedly “declared their genocidal intent”.
Among the words cited were a remark by Defence Minister Yoav Gallant that Israel was “fighting human animals” and references by Prime Minister Benjamin Netanyahu to a violent passage of scripture.
Israel’s actions are “rooted in the belief that in fact the enemy is not just the military wing of Hamas or indeed Hamas generally, but is embedded in the fabric of Palestinian life in Gaza,” Mr Ngcukaitobi said.
What is the International Court of Justice?
The ICJ, also known as the World Court, is the UN’s leading judicial body and hears disputes between member states. It is separate from the International Criminal Court, which is also seated in The Hague and can charge people and groups with crimes against humanity.
South Africa has a delegation of three dozen in The Hague including barristers, government officials, advisers and ambassador Mr Madonsela.
Among its top lawyers is John Dugard, a former UN rapporteur on human rights in the occupied Palestinian territories, and an advocate of South Africa’s high court.
Israel has instructed Malcolm Shaw, a British barrister and a veteran of international court proceedings, as one of its representatives. Its delegation also includes deputy attorney general Gilad Noam.
While it could take years for judges to decide whether Israel has committed genocide, this week’s hearings turn on whether the court will order “provisional measures”.
South Africa wants an order that Israel “shall immediately suspend its military operations” and refrain from displacing Palestinian people or depriving them of food, water and medicine.
The South African filing compares Israel’s actions towards Palestinians with the former apartheid regime in South Africa, an allegation rejected by Israel.
More than 23,300 Palestinians have been reported killed in Gaza since the war began in October. At least seven people were killed and 25 wounded in another Israeli strike overnight on a home in Khan Younis, southern Gaza, Palestinian media reported.
Although the ICJ cannot force Israel to comply, an order from The Hague could increase international pressure on Israel to change course.
A briefing by Israeli diplomats heard a legally binding decision would “complicate [Israel’s] war effort in Gaza”.
The Israeli government “would not want allegations on the record accusing it of genocide”, said law professor Yuval Shany.
Israeli government spokesman Eylon Levy said the country would take the stand to “dispel South Africa’s absurd blood libel”, which it says “gives political and legal cover” to Hamas.
The 1948 Genocide Convention, drawn up in the aftermath of the Holocaust, defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
Israel is expected to argue it is acting in self-defence after it was attacked by Hamas on October 7. It may also challenge South Africa’s right to file a case related to Gaza.
The court previously called on Myanmar to halt alleged genocide against Rohingya Muslims, after an application by Gambia. In 2022 it unsuccessfully called on Russia to suspend its invasion of Ukraine.
Pro-Palestinian lawyers hope the Myanmar precedent will work in South Africa’s favour in this week’s case.
Colombia and Brazil expressed their support for South Africa late on Wednesday. The US sides with Israel in opposing the case.