South Africa’s legal team in The Hague did not mention Hamas’s practice of hiding among civilians, and made much of vague, general comments by Israeli politicians, however inflammatory
THE HAGUE — The South African legal delegation’s oral arguments on Thursday to the International Court of Justice alleging that Israel is committing genocide in Gaza were highly charged, grave, and will require a careful, well-founded and articulate rebuttal by Israel’s representatives on Friday.
The current hearings are focused on South Africa’s request for provisional measures against Israel, which require a much lower evidentiary bar than a final ruling of genocide, and that makes such a determination against Israel far easier for the court to make.
Detailing the level of human suffering in Gaza and the numerous, incendiary comments by some of the most senior Israeli cabinet ministers and Knesset members, including Prime Minister Benjamin Netanyahu, the South Africans attempted to paint a picture of a well-armed war machine carrying out the deliberate murder, or genocide, of a defenseless people. What it conspicuously lacked was evidence to support the central, incendiary genocidal claim.
The situation in Gaza as described by the South African delegation is indeed dire: thousands of Palestinian civilians have been killed and maimed, getting access to clean water and food is incredibly difficult, and the misery resultant from the war in Gaza is great.
Combined with the highly problematic remarks by Security Cabinet members about how fiercely the country would respond to Hamas’s October 7 slaughter of 1,200 people in southern Israel, South Africa’s oral presentation on Thursday represents a highly complex and problematic legal challenge to the Israeli representatives in The Hague.
The basis of its claims of Israeli genocidal intent is founded on the mostly vague comments of senior Israeli officials, which critically were not backed up by evidence of genocidal acts.
The South African presentation ignored Hamas’s use of civilian infrastructure for military purposes, which Israel has said is the cause of much of the harm to Palestinian civilians, and almost pretended that there is no armed conflict in which Hamas is actively fighting in the war against Israeli troops.
And by refusing to acknowledge the severity and barbarity of the October 7 atrocities perpetrated by Hamas, and the implications of that attack for Israeli civilians and Israeli sovereignty itself, the South African legal team essentially sought to hide Israel’s reason for going to war in the first place; not, as Pretoria claims, to commit genocide but, rather, to dismantle Hamas and end the threat it poses to Israeli citizens.
The foundation of South Africa’s allegation that Israel is committing genocide against Gazans is that comments by senior Israeli cabinet ministers with a say over war policy demonstrate an intent to kill civilians.
But many of those comments are either vague or ignore comments by the same and other senior officials insisting that the war is aimed at defeating Hamas and that Palestinian civilians should not be harmed.
The South Africans cited Netanyahu’s references to one of the ancient Israelites’ enemies, the Amalekites, which the Bible commands the Israelites to destroy, including men, women and children.
But Netanyahu did not cite that aspect of the Biblical injunction, rather the part about remembering what the Amalekites did to the Israelites, specifically its attacks on the weak and vulnerable.
The distance between a vague Biblical reference and establishing genocidal intent is relatively large.
Other comments, such as those by Defense Minister Yoav Gallant that Israel is “fighting human animals” and must “act accordingly,” are also far from definitive, and will likely be explained as a reference to Hamas terrorists and not Palestinian civilians.
One of the most problematic comments cited by South Africa’s legal team was a remark by National Security Minister Itamar Ben Gvir who said “Those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should also be destroyed,” in reference to Gazans celebrating the October 7 attacks.
Ben Gvir, a member of the Security Cabinet which makes war policy, is in this remark ostensibly broadening the definition of who is a legitimate target for attack in Gaza, from combatants and Hamas fighters to those who he says are apparently not involved in terrorism and military combat.
But here the South African case runs into another major problem; the legal representatives did nothing to demonstrate that the Israeli army has engaged in the systematic, deliberate slaughter of Palestinian civilians.
The very general descriptions of Palestinian civilian casualties and desperate living conditions in Gaza are not evidence of genocide.
The Israeli legal team in its defense Friday will, instead, likely underline something that the South African team did not mention even once in all three and a half hours of its oral arguments and 84 pages of its application to the ICJ: that Hamas has embedded its military installations and combatants in, around, and under every part of Gaza’s civilian infrastructure.
The high level of civilian casualties, the Israeli team will likely argue, is due not to a genocidal Israeli campaign but because Gaza’s civilians have been placed in harm’s way since Hamas strategically located its armed forces, weapons and tunnels in hospitals, mosques, schools and UN facilities.
The Israeli army’s widespread and repeated warnings to civilians to evacuate from the most intense combat zones will also be underlined as evidence that Israel does not wish to harm Palestinian civilians — a key contextual element that, again, was absent from the South African case.
More broadly, the South African case ignores the cause of the Israeli military campaign — the October 7 atrocities committed by Hamas — and Israel’s subsequent declaration of war which is explicitly aimed at destroying Hamas so that it can no longer constitute a deadly danger.
By failing to acknowledge this reality and failing to even acknowledge that there are Hamas fighters battling Israeli troops in Gaza, the South African case obfuscates the fact that there is currently a war between two sides and that in all wars there are always civilian casualties.
The task in front of the Israel defense team Friday is a difficult one and faces serious challenges. But the South African case has real and significant flaws.
The Israeli legal representatives will strive to underline these in order to extricate Israel from the highly problematic corner into which it has been jammed — and into which, in good part due to the intemperate comments of some of its political leaders, it has also jammed itself.
Content retrieved from: https://www.timesofisrael.com/south-africa-paints-grim-picture-of-gaza-but-obfuscates-foundations-of-genocide-claim/.