On the second day of proceedings before the International Court of Justice (ICJ) in South Africa’s genocide case against Israel on Friday (December 12), Israel’s representatives presented their defence, premised on the argument that its actions constituted “self-defence” against Hamas’s attack on October 7.
Amidst Israel’s continuing assault on Gaza which has killed almost 24,000 to date, South Africa filed a case at the ICJ accusing Israel of violating the United Nations’ 1948 Genocide Convention. South Africa presented its case at the World Court on Thursday.
Here is a brief summary of Israel’s arguments.
Israel’s legal team comprises Tal Becker, the legal adviser for its foreign ministry, British barristers Malcolm Shaw and Christopher Staker, Israel’s Deputy Attorney Gilad Noam, Justice Ministry representative Galit Raguan, and Omri Sender.
Invoking the Holocaust
Tal Becker, in his opening remarks, invoked the Holocaust. “Seared in our collective memory is the systematic murder of 6 million Jews as part of a premeditated and heinous programme of their total annihilation,” Becker said.
‘Israel’s actions in self-defence’
Becker claimed that Israel’s actions in Gaza stemmed from self-defence against Hamas’s attacks on October 7 in southern Israel, and that South Africa had painted a “distorted factual and legal picture” of its actions, ignoring altogether the massacre committed by Hamas. Becker argued that Israel was compelled to act in a certain way to protect its people. “Israel doesn’t want to occupy Gaza or displace its civilian population, but to create a better future for Israelis and Palestinians alike,” he said.
According to the United Nations, however, there have been 23,074 reported deaths in Gaza between October 7, 2023 and January 7, 2024, an average of 250.8 per day. In comparison, the death toll in Israel in the same period stands at 1,139.
Breaches will be dealt internally
Malcolm Shaw said that although Hamas’s October 7 attack did not give Israel the right to breach international law, it was well within its rights to defend itself as per humanitarian law. He said that if a genocide charge was incorrectly imposed, the crime’s essence would be lost, and argued that any breach of conflict rules will be dealt under Israel’s robust legal system.
‘South Africa shares close relations with Hamas’
Becker also asserted that the petitioner country enjoyed close relations with Hamas despite it being recognised as a terrorist organisation in several countries.
Shaw later said that South Africa had approached the matter as if it had an existing dispute with Israel. He argued that there is not any dispute but just a “unispute”, suggesting it stemmed only from South Africa’s contention. He also rejected South Africa’s claim that it had tried to initiate a dialogue with Israel. Shaw said that instead, it was Israel that attempted to open “bilateral talks”.
‘Hamas to blame for civilian deaths’
Galit Raguan blamed Hamas for the high civilian death toll in Gaza. Arguing that modern warfare will inevitably lead to civilian harm, Raguan said that these may be the “unintended but lawful” repercussions of attacks on the military, and didn’t amount to genocide.
He argued that Hamas followed a strategy of “embedding itself” in the civilian population. “Since its 16-year rule, Hamas has smuggled countless weapons into Gaza, turning massive swathes of civilian infrastructure like schools and hospitals into a sophisticated terrorist stronghold,” he said. “If Hamas lays down its arms, the suffering will end. They speak of destroying buildings without saying why they were destroyed. How many were struck because of misfired rockets that landed in Gaza itself?” he said.
‘Israel has provided aid to Gaza’
Omri Sender argued that, contrary to popular claims, Israel ensured humanitarian aid to civilians in Gaza. He said that Israel had supplied water, food trucks, fuel, and gas to the civilians in Gaza. Adding that the injured or sick people were allowed to cross into Egypt, Sender said Israel met the “legal test” of providing measures to ensure that the rights of civilians weren’t hampered.
‘Provisional measures would deprive Israel ability to contend with security threat’
Christopher Staker said that there should not be any provisional measures in this case as Israel merely defended itself. He said that Hamas had exhibited its intent to carry out more attacks against Israel and its people. “Provisional measures would deprive Israel of the ability to contend with the security threat against it and end attempts to rescue captives from Gaza,” Stalker argued, adding that suspending military operations would give more time to Hamas to build its defence.
What had South Africa argued on Day 1?
Drawing inspiration from founding father Nelson Mandela, the South Africans argued that Israel’s response to the October 7 attack had “crossed the line”, and it was wilfully carrying out genocide against Palestinians in Gaza. It had shown documented evidence of Israel’s atrocities in Gaza, including evidence posted on social media by Israelis themselves.
Crucially, South Africa’s legal representatives stressed that there was an “urgent need for provisional measures to protect Palestinians in Gaza from irreparable prejudice caused by Israel’s violation of the genocide convention.”
For a more detailed summary of South Africa’s case, click here.
Legal adviser to Israel's Foreign Ministry Tal Becker and British jurist Malcolm Shaw sit inside the International Court of Justice (ICJ) as judges hear a request for emergency measures to order Israel to stop its military actions in Gaza, in The Hague, Netherlands January 12, 2024. (REUTERS/Thilo Schmuelgen) 
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