Addressing the court, South Africa’s Minister of Justice Ronald Lamola said the oppression of Palestinian people did not begin following the Hamas attacks, arguing it has been ongoing for years.
“In the Gaza Strip, at least since 2004, Israel continues to exercise control over the air space, territorial waters, land crossing, water, electricity and civilian infrastructure.”
He added that “South Africa unequivocally condemned the targeting of civilians by Hamas and other Palestinians and groups, and the taking of hostages on the 7th of October 2023.”
But, he argued, “no armed attack on a state territory, no matter how serious… even an attack involving atrocity crimes can provide any justification for, or defense to, breaches to the convention. Whether it is a matter of law or morality.
“Israel’s response to the 7th of October 2023 attack has crossed this line and gives rise to the breaches of the convention,” he told the court.
South Africa has been providing evidence it said shows a “pattern of genocidal conduct” by Israel.
Adila Hassim, one of the advocates representing South Africa, said Israel’s “actions show a systematic pattern of conduct from which genocide can be inferred.”
In an 84-page filing to the ICJ, South Africa cited evidence it said showed Israel is committing genocide by killing Palestinians in Gaza, causing serious mental and bodily harm, forced evacuations, widespread hunger, and by creating conditions “calculated to bring about their physical destruction.”
Hassim discussed some of the evidence presented by South Africa in its filing, including Israel’s air strikes in Gaza.
She stated Palestinians in Gaza have “been killed if they have failed to evacuate, in the places to which they have fled, and even while they have attempted to flee along Israeli-declared safe routes”.
“The level of Israel’s killing is so extensive that nowhere is safe in Gaza,” she continued, adding that the destruction was “beyond any acceptable legal – let alone humane – justification.””
Hassim also cited videos and images she said showed Israeli soldiers “joyfully detonating entire apartment blocks and town squares, erecting the Israeli flag over the wreckage, seeking to reestablish Israeli settlements on the rubble of Palestinian homes, and thus extinguishing the very basis of Palestinian life in Gaza”.
She also cited experts who have claimed that more may die in Gaza because of disease and starvation than because of Israeli air strikes.
Another lawyer representing South Africa, Tembeka Ngcukaitobi, addressed the court, arguing that South Africa is “not alone in drawing attention to Israel’s genocidal rhetoric against Palestinians in Gaza”.
“Fifteen United Nations special rapporteurs and 21 members of the United Nations weapon groups have warned that what is happening in Gaza reflects a genocide in the making and an overt intent to destroy the Palestinian people and occupation,” he said.
“Israel has a genocidal intent against the Palestinians in Gaza,” Ngcukaitobi told the court, adding, “That is evident in the way in which Israel’s military attack is being conducted, which has been described by Ms Hasim.”
“It is systematic in its character and form. The mass displacement of the population of Gaza, headed into areas where they continue to be killed and the deliberate creation of conditions that quote — lead to a slow death — unquote.”
Ngcukaitobi went on to say there was an “extraordinary feature” in this case, stating, “Israel’s political leaders, military commanders, and persons holding official positions, have systematically and in explicit terms declared their genocidal intent.”
He added these statements “are then repeated by soldiers on the ground in Gaza as they engage in the destruction of Palestinians and the physical infrastructure of Gaza.”
“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,” Ngcukaitobi claimed.
He cited Israeli Prime Minister Benjamin Netanyahu’s address to Israeli forces on October 28, ahead of the imminent launch of its ground offensive in Gaza.
“Remember what Amalek did to you,” Netanyahu said in his address, which Ngcukaitobi told the court “refers to a Biblical command by God to Saul for the retaliatory destruction of an entire group of people known as the Amalekites.”
Ngcukaitobi cited a verse from the book of Samuel also referring to the Amalekites.
“Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys,” reads the verse.
Ngcukaitobi then referenced quotes from Israeli Defense Minister Yoav Gallant.
“On 9 October, the Defense Minister Yoav Gallant gave a situation update to the army where he said that as Israel was imposing a complete siege on Gaza there would be no electricity, no food, no water, no fuel. Everything would be closed. Because Israel is fighting ‘human animals,'” Ngcukaitobi told the court.
Ngcukaitobi continued, “Speaking to troops on the Gaza border he instructed them that he has released “all the restraints” and that Gaza won’t return to what it was before.”
“We will eliminate everything. We will reach all places,” Ngcukaitobi quoted Gallant as saying.
South Africa has argued that if the International Court of Justice refuses to grant emergency measures in its genocide case against Israel, the court would “treat Palestinians differently, as less worthy of protection than others”.
It wants the court to order a halt in Israel’s Gaza campaign, something the court could rule on in a matter of weeks.
Max du Plessis, one of the advocates representing South Africa, cited various cases in which the ICJ has granted “provisional measures” in order to protect the rights of peoples around the world.
In January 2020, the court granted The Gambia’s request for provisional measures to protect the Rohingya people remaining in Myanmar from Genocide. The Court has granted similar measures to protect Ukrainians from ongoing Russian aggression, and Bosnians during the Balkan Wars in the 1990s.
South Africa has argued that the rights of Palestinians must be protected “from imminent and irreparable loss” while the court considers the full merit of the case, which could take years.
“To find otherwise would not only be to treat Palestinians differently, as less worthy of protection than others, it would also be for the court to unduly limit its own competence, to turn its back upon its extensive prior jurisprudence, and to close its eyes to the breach of the rights which lie at the heart of the convention, and which breaches are taking place in Gaza right now,” du Plessis stressed.
South Africa has stressed throughout the hearing that the Court need only to decide that Israel’s actions are “plausibly genocidal” for it to grant provisional measures.
Blinne Ní Ghrálaigh has also addressed the court, outlining previous times the ICJ has implemented provisional measures to stop a country from committing genocide.
Among the cases Ní Ghrálaigh cited were when The Gambia accused Myanmar of genocide against Rohingya Muslims and Russia’s invasion of Ukraine.
“Madame President, members of the court, if the indication of provisional measures was justified on the facts in those cases that I have cited, how could it not be here? In a situation of much greater severity where the imminent risk of irreparable harm is so much greater?”
“The imminent risk of death, harm and destruction that Palestinians in Gaza face today, and that they risk every day during the pendency of these proceedings on any view justifies, indeed compels the indication of provisional measures,” she argued.
Ní Ghrálaigh continued to say that the international community had “repeatedly failed. It failed the people of Rwanda. It failed the Bosnian people and the Rohingya, prompting this court to take action. It failed again by ignoring the early warnings of the grave risk of genocide to the Palestinian people sounded by international experts since October 19 last year”.
“The international community continues to fail the Palestinian people, despite the overt, dehumanizing, genocidal rhetoric by Israeli governmental and military officials, matched by the Israeli army’s actions on the ground,” she said.
As a part of her closing remarks, Ní Ghrálaigh stated “the world should be ashamed” by the situation in Gaza.
She shared two photographs with the court.
One is from a hospital in northern Gaza and has the words “whoever stays until the end, will tell the story, we did what we could. Remember us”. She then showed a photo of the destroyed whiteboard after it was hit by an Israeli missile, killing the note’s author.
South Africa posed a challenge to the International Court of Justice’s panel of judges, saying it is “hard to think of a case in recent history that has been so important for the future of international law”.
Towards the end of South Africa’s three-hour oral argument, Vaughan Lowe, one of the lawyers representing it, said now “is not a moment for the court to sit back and be silent,” and that its decision would have a bearing on the future of the court itself.
Lowe asked the court to grant provisional measures ordering Israel to suspend its military campaign in Gaza, to prevent further abuses of the rights of Palestinians while the court considers the full merits of the case.
“Israel says that Palestine and Palestinians are not its target, 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 manhunt for members of Hamas,” Lowe added.
Addressing the various charges of hypocrisy that have been laid against South Africa, including why it has not also brought a charge of genocide against Hamas, Lowe explained this is a matter for the Intentional Criminal Court – and not the ICJ.
“Hamas is not a state and cannot be a party to the genocide convention, and cannot be a party to these proceedings,” Lowe continued. Whereas the ICJ hears cases brought by states accusing others of violating their UN treaty obligations, the ICC tries individuals for crimes including war crimes and crimes against humanity.
Lowe concluded by summarizing South Africa’s argument.
“South Africa believes that the publicly available evidence of the scale of the destruction resulting from the bombardment of Gaza, and the deliberate restriction of food, water, medicines and electricity available to the population of Gaza, demonstrates that the government of Israel… is intent on destroying the Palestinians in Gaza as a group, and is doing nothing to prevent or punish the actions of others who support that aim.”
He stressed “the point is not simply that Israel is acting disproportionately – the point is the the prohibition on genocide is an absolute”.
Vusi Madonsela, South Africa’s ambassador to the Hague ended day one of the hearing by detailing the country’s requests for provisional measures.
He requested the measures be considered “as a matter of extreme urgency”.
Among the provisional measures requested include:
- That Israel suspends its military operations in and against Gaza
- That Israel ensures its military – and any associated groups stop any military operations
- That Israel stops killing Palestinian people
- That Israel stops displacing Palestinian people from their homes and ensures they have access to food, water, healthcare and basic infrastructure
- That Israel take “all reasonable actions within their power to prevent genocide”
South Africa finished presenting its case. Israel, which has denied the allegations, will respond on Friday.
