On the second and final day of preliminary hearings at the International Court of Justice (ICJ), Israel’s legal team insisted that the twin military objectives were to eradicate the existential threat posed by Hamas militants and to free some 136 hostages still held in the war-shattered enclave.
“Israel is in a war of defence against Hamas, not against the Palestinian people” in the aftermath of Hamas-led terror attacks on 7 October, Israel co-agent Tal Becker told judges in The Hague.
There had been “tragic” and “heartbreaking” civilian suffering “in this war, like in all wars”, Mr. Becker said, as he read out the last anguished text messages sent by the father of one Israeli farming family, burned to death in their home by presumed Hamas fighters who “tortured children in front of parents and parents in front of children”.
Mr. Becker also rejected South Africa’s petition to the court under the provisions of the Genocide Convention to issue “provisional measures” to order Israel to immediately suspend its military campaign in Gaza.
This amounted “to an attempt to deny Israel its ability to meet its obligations to the defence of its citizens, to the hostages and to over 110,000 displaced Israelis unable to safely return to their homes”, he said.
The issue of justified self-defence featured prominently in Israel’s presentation.
When a State is attacked, it has the right to defend itself and its citizens, Israel’s legal team insisted, before underscoring the deep trauma resulting from the 7 October terror attacks by Hamas and other Palestinian militants who rampaged across southern Israel, slaughtering some 1,200 people and taking around 250 captive.
“There is no genocidal intent here; this is no genocide,” said Israel counsel Malcolm Shaw. Hamas atrocities “do not justify violations of the law in reply – still less genocide – but they do justify…the exercise of the legitimate and inherent right of a State to defend itself as enshrined in the UN Charter“.
Rejecting South Africa’s “profoundly distorted” description of the war in Gaza, Israel’s legal team accused that country’s legal team of attempting to “weaponize” the term genocide, which it insisted was a better description of Hamas’s “annihilationist language” about “cleansing” Palestine of Jews.
The armed group which controls Gaza had diverted billions of dollars of aid and turned the Strip into “perhaps the most sophisticated terrorist stronghold in the history of urban warfare” embedded in communities, the court heard.
“Urban warfare will always result in tragic deaths, harm and damage, but in Gaza these undesired outcomes are exacerbated because they are the desired outcomes of Hamas,” said Galit Raguan, for Israel.
Asserting that “every single hospital” searched by Israeli Defense Forces had found evidence of military use by Hamas, the Israel legal counsel also alleged that weapons had been found hidden inside a hospital incubator.
The world court also heard how the Israeli military had demonstrated “the precise opposite” of any possible genocidal intent by restricting its targeting to military personnel or objectives “in accordance with international humanitarian law in a proportionate manner in each case”.
Israel’s efforts “to mitigate harm” during military operations and to alleviate suffering through humanitarian activities had gone “relatively unnoticed” amid the “unprecedented and extensive” use of telephone calls and leafletting to warn populations of impending conflict, the Israel legal team noted.
Next steps in the case
Now that initial representations from both South Africa and Israel have concluded at the ICJ, one of the justices’ first tasks is to assess whether there are sufficient grounds to approve the South African application for provisional measures against Israel, to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention”.
These measures are expected in weeks, legal commentators have said.
They are designed “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”, according to an earlier ICJ press release.
If this results in a ceasefire call which is not implemented, the matter would then need to be taken up by the UN Security Council, which could then agree on a resolution aimed at enforcing an end to hostilities.
Next month, the world court is also due to consider a separate case concerning Israel and Palestine, requested by the UN General Assembly in a resolution adopted on 30 December 2022, before the current conflict.
In that resolution, the General Assembly requested an advisory opinion from the ICJ on the legal consequences of “Israeli practices and affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem”.
The procedure will involve a public hearing on 19 February 2024, after the court takes receipt of written reports from numerous States.