If Israel does not comply with a possible ceasefire order in Gaza from the International Court of Justice (ICJ) sought by SA, the matter could end up before the UN Security Council.
This is the view of an international law expert, who also thinks military operations may “escalate” if the ICJ refuses the order SA seeks.
SA argued in the ICJ that Israel violated the Genocide Convention to which both countries are signatories after Hamas militants invaded Israel in October last year.
Israel said Hamas killed more than 1,000 of its people, took nearly 300 hostages and tortured others.
In response, Israel began a military campaign in Gaza, claiming to target Hamas and rescue its hostages. But SA said in reality Israel’s operations are genocidal, using reports from UN officials, aid workers and citing what SA said are statements of genocidal intent from Israeli leaders.
SA lawyers, aided by Irish and British lawyers, argued last week that Israel demonstrated “genocidal intent”.
On Thursday, SA listed alleged bombings on Palestinian civilian zones, blocking of water, food and electricity, and statements from Israeli officials. “All of these acts,” advocate Adila Hassim said on Thursday, “individually and collectively form a calculated pattern of conduct by Israel indicating a genocidal intent.”
Israel responded on Friday.
Legal adviser at Israel’s ministry of foreign affairs, Tal Becker, told the 15 judges at the court that SA put forward a “curated, decontextualised and manipulative description of the reality of current hostilities”.
Hamas support
UK barrister Malcolm Shaw said SA had not provided Israel with a “reasonable opportunity” to respond to SA’s claims before instituting litigation in late December. This meant the court’s jurisdiction was not properly engaged and the case cannot be heard.
Shaw stressed that if there were any genocidal intent, it was from Hamas in October when it killed Israeli citizens. Israel has the “inherent right” to take lawful measures in response and it is now doing so “in accordance with international law”. He also claimed SA gave “succour and support” to Hamas.
SA asked the court to provide “provisional measures”, which essentially would put a pause on military operations in Gaza. Such measures can be granted soon.
This would allow time for the court to deliberate, late into the year, on whether Israel’s conduct truly constitutes genocide.
Shaw says this would “bind the arms of Israel” yet do nothing to Hamas.
Shaw also dismissed various quotes from Israeli officials used by SA to prove genocidal intent as “wartime rhetoric” and “misleadingly quoted”. He showed more recent quotes of, for example, Israeli Prime Minister Benjamin Netanyahu saying “any civilian death is a tragedy”.
Galit Raguan of Israel’s ministry of justice said SA’s application was “distorted” and “obscured” Israel’s defence force (IDF) operations that, in fact, assisted civilians in Gaza.
She said there were many examples demonstrating the “opposite” of genocidal intent: advance warning, through “millions” of leaflets and 70,000 phone calls to evacuate, providing aid and passage, and so on.
SA “neglected” Hamas’ operations doing damage in Gaza. Raguan asked why Israel would warn, assist and provide aid to the Palestinians if it wanted to commit genocide.
Right measure
Israeli attorney Omri Sender agreed the situation in Gaza is “grave” but blamed Hamas. He noted how Israel engaged with the World Food Programme and Unicef to deliver food and hospital aid.
Commenting on Israel’s case, Gerhard Kemp, professor at the University of the West of England, Bristol, told Business Day a ceasefire order from the court “is the right measure to prevent genocide”. If Hamas disregarded this, “Israel would be justified not to abide by that part of the order”.
Regarding Israel’s documenting of its provision of aid to Palestinians, Kemp said this actually works against Israel. “Ironically enough,” he said, “Israel’s examples of how they provide humanitarian relief may support SA’s request for provisional measures.” This is because SA’s request is precisely to make such aid easier. “Any measures that can help the prevention of a genocide should be taken as within the remit of the case.”
Kemp said it is an “open question” “whether Israel will adhere” to provisional measures. If Israel does not, “the matter may end up before the UN Security Council for enforcement”.
If measures are not granted, he expects the situation will remain as is or escalate.
The court has not yet indicated when it will give judgment, but it is expected in the next few weeks.
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