Judges at International Court of Justice told nothing could justify killings in Gaza

Justice Minister Ronald Lamola address the media outside the International Court of Justice (ICJ) in The Hauge, in the Netherlands following the first day of the hearing of the genocide case against Israel. Israel is expected to defend itself against the allegations. Picture: Remko De Waal/ EPA

Justice Minister Ronald Lamola address the media outside the International Court of Justice (ICJ) in The Hauge, in the Netherlands following the first day of the hearing of the genocide case against Israel. Israel is expected to defend itself against the allegations. Picture: Remko De Waal/ EPA

Published Jan 12, 2024


There was an urgent need for provisional measures to protect Palestinians under attack in Gaza from the irreparable prejudice caused by Israel’s alleged violations of the UN Genocide Convention, the International Court of Justice (ICJ) in The Hague, in the Netherlands, was told on Thursday in a landmark case brought by South Africa.

This formed part of South Africa’s key arguments before the ICJ’s 15 judges.

While South Africa argued that nothing could justify genocide, Israel has dismissed the case as “atrocious” and “preposterous” and vowed to defend itself today against allegations that it was breaking its commitments under the UN Genocide Convention, a treaty signed in 1948 in the wake of the Holocaust.

South Africa’s legal team consists of Adila Hassim SC, Tembeka Ngcukaitobi SC, John Dugard SC, Max du Plessis SC, Tshidiso Ramogale, Sarah Pudifin-Jones, Lerato Zikalala, Vaughan Lowe KC and Blinne Ní Ghrálaigh KC. Also in attendance was Justice Minister Ronald Lamola.

In her opening arguments, Hassim said Israel's bombing campaign aimed at the “destruction of Palestinian life” and had pushed Palestinians “to the brink of famine”.

“Gaza , which is one of the most densely populated places in the world, is home to approximately 2.3 million Palestinians, almost half of them children.

“For the past 96 days, Israel has subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare.

“Palestinians in Gaza are being killed by Israeli weapons and bombs from air, land and sea.

“They are also at immediate risk of death by starvation, dehydration and disease as a result of the ongoing siege by Israel.

“Genocides are never declared in advance, but this court has the benefit of the past 13 weeks of evidence that shows incontrovertibly a pattern of conduct and related intention that justifies a plausible claim of genocidal acts,” she said.

As a fellow signatory to the treaty, South Africa can take Israel to the ICJ, which rules on disputes between countries and is often described as the “World Court”.

As it is an urgent procedure, the ICJ could rule in a matter of weeks. Its rulings are final and cannot be appealed.

Dugard said South Africa had a long history of close relations with Israel, hence it did not bring this dispute immediately.

“The South African government repeatedly voiced its concerns, in the Security Council and in public statements, that Israel’s actions had become genocidal. On 10 November, in a formal diplomatic démarche, it informed Israel that while it condemned the actions of Hamas, it wanted the International Criminal Court (ICC) to investigate the leadership of Israel for international crimes, including genocide.

“President Ramaphosa publicly expressed his abhorrence ‘for what is happening in Gaza, which is now turned into a concentration camp where genocide is taking place’. To accuse a state of committing acts of genocide and to condemn it in such strong language is a major act on the part of a state.

“At this stage it became clear that there was a serious dispute between South Africa and Israel which would end only with the end of Israel’s genocidal acts,” said Dugard.

Arguing on the grounds of genocidal intent, Ngcukaitobi said an extraordinary feature in this case was that Israel’s political leaders, military commanders and persons holding official positions had declared their intent in public statements referencing the orders to “destroy” and use of words like “human animals” and “you wanted hell, you will get hell”.

“If the statements were not intended, they would not have been made. Israel’s special genocidal intent is 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. On 7 October, in a televised address, Israeli Prime Minister Benjamin Netanyahu declared war on Gaza and warned of an unprecedented price to be paid by the enemy,” he said.

If there was no urgent intervention each day, ambulances, hospitals and medics would continue to be attacked and killed, Ní Ghrálaigh told the judges.

“The first responders who have spent three months without international assistance trying to dig families out of the rubble with their bare hands will continue to be targeted.

On current figures, one will be killed almost every second day, sometimes in attacks, launched against those attending the scene to rescue the wounded.

“Entire multi-generational families will be obliterated; and yet more Palestinian children will become ‘WCNSF’:

‘Wounded Child – No Surviving Family’ – the terrible new acronym borne out of Israel’s genocidal assault on the Palestinian population in Gaza. There is an urgent need for provisional measures to prevent imminent, irreparable prejudice to the rights in issue in this case,” she said.

The evidence, according to Lowe, indicated that Israel’s actions had violated its obligations under the Genocide Convention and that they “continue to violate them and that Israel has asserted that it intends to continue them”.

“Israel may say that it will comply with all of its obligations under the Genocide Convention and that these orders from the court are not necessary. But in previous cases the court has held that such unilateral statements do not remove the risk of irreparable prejudice or obviate the need for a court order. In this case, one reason for doubting the efficacy of any such unilateral undertaking is Israel’s apparent inability to see that it has done anything wrong in grinding Gaza and its people into the dust,” said Lowe.

South Africa, according to its application, wants the court to order Israel to “immediately suspend its military operations in and against Gaza”, among others.

The country seeks “to protect the rights of Palestinians in Gaza, as members of a protected group under the Convention, including their right to exist as a group and their right to be protected from acts of genocide and the risk thereof, from conspiracy to commit genocide ...”.

Cape Times