President of the International Court of Justice (ICJ) US lawyer Joan Donoghue (2R) confers with colleagues at the court in The Hague on January 12, 2024, at the hearing of the genocide case against Israel, brought by South Africa. Picture: Remko de Waal / ANP / AFP
In calling for an immediate halt to Israel’s military operations in Gaza, the South African legal team told the International Criminal Court of Justice (ICJ) on Thursday that Israel is subjecting Palestinians to genocidal acts.
South Africa’s top legal team’s presentations were hailed overall as being “brilliant”.
Israel rejected the allegations of genocide and accused South Africa of only pointing to what it believed to be genocidal acts on the part of Israel, but that South Africa remained completely silent on the atrocities committed by Hamas.
In its presentation to the ICJ yesterday Israel's team said their attacks are aimed against Hamas and not the Palestinians.
But in its three hours of presentations to the court, South Africa’s legal team submitted that it is clear from the killings, starvation and destruction in the Gaza strip that Israel is targeting civilians.
In setting out his leg of the submissions on the provisional measures sought against Israel, Barrister Vaughan Lowe KC, who formed part of South Africa’s team, meanwhile said Israel was attacking the civilians directly.
“This is not a moment for the court to sit back and be silent. It is necessary that it assert its authority, and itself order compliance with the obligations under the Genocide Convention.
“Indeed, it is hard to think of a case in recent history which has been so important for the future of international law, and of the court.”
Lowe pointed out that the court does not at this stage have to determine whether or not Israel has or has not acted contrary to its obligations under the Genocide Convention. That can only be done at the merits stage. It is concerned now only with the question of what provisional measures are required pending its final decision on the merits.
Lowe said Israel has for over three months been mounting a continuous siege and bombardment of Gaza of a ferocity and duration that can only be seen as an attempt to destroy Gaza and its citizens; and it is publicly asserting that it will continue to do so.
“You are aware of the scale of the death and the scale of the destruction. And it is continuing at this very minute,” he told the ICJ.
In referring to other matters of this nature before the ICJ in the past, Lowe said the court has issued orders to restrain states from killing individuals in a manner alleged to violate international law.
“That is what South Africa is requesting, after more than 22,000 individuals have already been killed in the siege and bombardment, the overwhelming majority of them innocent men, women and children.”
Lowe said some will ask why South Africa does not seek any order against Hamas.
“This case concerns Israel’s action in Gaza, which is territory that, three weeks ago in Resolution 2720, the Security Council stressed is “an integral part of the territory occupied in 1967” by Israel. As the Court will understand, Hamas is not a State and cannot be party to the Genocide Convention; and it is not a party to these proceedings.”
Lowe said South Africa understands that not all violence constitutes genocide. Acts of ethnic cleansing, collective punishment, the targeting of civilians, attacks on hospitals, and other war crimes are all unlawful: but they do not always violate the Genocide Convention.
“Genocide requires an intent to destroy, in whole or in part, a national, ethnical, racial or religious group. But the fact that what Israel is doing in Gaza may also constitute war crimes or crimes against humanity is no defence to a charge of genocide.”
Israel’s continuing operation in Gaza since the October 7 attack, which South Africa is condemning, is the focus of this case, he told the court,
“Israel says that Palestine and Palestinians are not its target, and that its aim is to destroy Hamas. But months of continuous bombing, flattening entire residential blocks and cutting off food and water and electricity and communications to an entire population, cannot credibly be argued to be a man-hunt for members of Hamas.”
Lowe said it is an indiscriminate attack, killing, maiming and terrorising the entire population of Gaza with no regard to questions of innocence or guilt, obliterating the homes and cities in which they live, and destroying any practical possibility of their return to make their homes amidst the rubble.
“Israel’s action both attacks Palestinians in Gaza directly, and also prevents humanitarian relief reaching them. Palestinians face death from the continuing bombardments and shootings, and death from starvation and disease, which is even more indiscriminate, but usually slower.”
Lowe said South Africa has requested an order for the immediate suspension of Israel’s military operations in and against Gaza as it is the only way to secure the humanitarian response and avoid yet more unnecessary death and destruction.
“It is no use Israel saying that it does whatever it can to minimise the deaths of innocent men, women and children. The use of 2000 pound bunker-busting bombs and dumb bombs in residential areas, and the relentless bombardment of Gaza, and even of so-called ‘safe areas’ to which Palestinians have been directed by Israel, tell another story.”
Lowe said if any military operation, no matter how it is carried out, is carried out pursuant to an intention to destroy people, in whole or in part, it violates the Genocide Convention, and it must stop.
“That is why all military operations capable of violating the Genocide Convention must cease.”
Lowe told the ICJ that not only lives are at stake. Israel’s credibility and reputation are at stake. Yet evidence that could determine whether or not particular acts violate the Genocide Convention is being lost or destroyed, while fact-finders and foreign journalists are unable to report freely from Gaza.
Part of the order sought by South Africa is that the ICJ require specific reports from Israel on what it is doing to implement the order, if it is granted in SA’s favour.
“General assurances are not enough. Reports, published via the court, are an essential element of accountability,” Lowe said.
The South African team does not, as in an ordinary court of law, have the chance to reply to the arguments of Israel. The team had to, during its session on Thursday, pre-empt what Israel’s arguments were going to be.
Pretoria News
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