Bringing down a house of cards: South Africa Vs Israel at The Hague

On 12 January, inside the International Court of Justice (ICJ) at The Hague, the world stepped into Israel's take on its ongoing military campaign in Gaza for more than three months now. 

'Self-defence,' the legal team bellowed through approximately three hours. They also crafted their case through multiple layers of "look at what Hamas did" or perhaps, more accurate to say, "look at what Hamas made us do in response."  

Photos: Reuters

Several mainstream media outlets live-streamed Israel's oral proceedings at the ICJ. Perhaps, for the uninitiated at least, a little surprising that the same media outlets collectively and completely ignored what happened inside the same court a day earlier. 

South Africa, on 11 January, presented a detailed and sound case accusing Israel of committing genocide in Gaza against the Palestinians. This public hearing in the UN's highest legal body – while Israel continued its indiscriminate assault against Gaza – was nothing short of historic. Thus far, it has been the sole act to bring Israel to an international court to hold it accountable. 

In the past three months alone, millions have taken to the streets across North America, Europe, the Middle East and elsewhere in solidarity with Palestine and calling for a ceasefire. However, the same sentiment – a stop to the indiscriminate bombing of Gaza — is yet to resonate through the White House in the United States (Israel's steadfast and mightiest ally in the West) and other governments in the Global North. 

While there are several aspects of this case or "dispute" between South Africa and Israel to appreciate — such as a historic significance (South Africa is a country which fought and won against an apartheid regime) to a more contemporary and symbolic representation of a fight for justice against the global status quo (Israel continues to enjoy unconditional support from the West) — the arguments presented by the two legal teams speak volumes of the "genocide" in hand. 

South Africa's legal team laid bare the genocidal intent, facts, footage and statistics – substantiated by international organisations like the United Nations, the World Health Organization and the International Committee of the Red Cross, among others – which constitute the act of genocide committed by Israel. 

Photo: Reuters

South Africa filed a case at the ICJ against Israel accusing it in breach of the Genocide Convention 1948.

In response, Israel argued that it has the right to self-defend and because of how South Africa filed the case to the court, its (the latter) argument does not hold water. 

Recurring rhetoric: But what about Hamas? 

Hamzah Saadah, a 20-year-old Palestinian content creator with 1 million followers on Instagram (and 7 million on TikTok) did a live stream count of the mention of Hamas during Israel's oral proceedings. 137 times Hamas was mentioned by Isreal's legal team in the approximately 3-hour-long oral proceedings. 

Hamas, a Palestinian militant group, attacked southern Israel on 7 October 2023. 

By Israel's own official count, some 1,200 people were killed on the day — this figure was revised down by Israel from the initial 1,400. "Of these 1,200, 274 were soldiers, 764 were civilians, 57 were Israeli police and 38 were local security guards. It has still not been determined how many Israelis were killed in "friendly fire" incidents by Israeli forces who responded to the Hamas attacks that day," according to Jeremy Scahill at the Intercept. 

Attack on civilians is considered a war crime according to international law. Unfortunately, what followed the attack was a bloody military campaign imbued with collective punishment because Israel carried out a complete siege on Gaza's 2.2 million population cutting off food, electricity and medicine. Collective punishment constitutes a breach of international humanitarian law. 

However, the legal team's premise was unsurprisingly anchored on "self-defence" against what Hamas had committed on the fateful October day. They further went on to claim that it was Israel against whom genocide was being committed. 

This premise of the argument once again establishes Israel's victimhood narrative – and in this case, in the face of more than 23,000 dead Palestinians. Israeli journalist and Haaretz columnist Gideon Levy famously and repeatedly broached this narrative in the past explaining how Israel plays on its victimhood as a justification for its actions. He said, "Israel is not only a victim, but the only victim." 

What also constitutes a weak argument is Israel's repeated accusation against South Africa that  "It is a matter of public record, that South Africa, enjoys close relations with Hamas," one of the lawyers said. What is a public record, however, is Israel's blatant accusation against individuals, and organisations of being antisemitic or a terrorist-sympathiser or Hamas itself. The United Nations had not been spared from this accusation. 

Photo: Reuters

Another recent example is when two journalists (Aljazeera and AP stringer) were killed in a reportedly targeted bombing of their car by Israel in Gaza, IDF officials claimed the journalists were, in fact, Hamas "terrorists."      

Israel rejected South Africa's accusation of genocide, sure. But it miserably failed to counter its argument. Rather, it repeated and amplified statements that had been already debunked or proven to have been exaggerated by Israel. 

One glaring takeaway is Israel denied bombing Gaza's hospitals at the ICJ. A vast number of hospitals and healthcare facilities were bombed and attacked by Israel – substantiated by footage, hospital directors' statements and Palestinian journalists.  

A December investigation by the Washington Post also found Israel's claim of Hamas using al-Shifa hospital as a command base as illegitimate. 

The legal team used atrocity propaganda from 7 October and false claims of undisrupted aid supply into Gaza in its defence — again laying the hollowness of its argument bare. 

The Israeli legal team all but wobbled in presenting their case. In one literal instance, Michael Shaw, the British lawyer who headed the legal team, lost his place in his speech, and said "Someone must have shuffled my papers." 

The legal team also veered into technicalities — particularly how South Africa failed to follow protocol in filing the case and given Israel only a few days to respond to a notification that it was committing genocide.

In terms of genocidal intent, presented by South Africa's legal team, as statements issued by the Israeli government following 7 October. "It has been taken out of context," is essentially what the legal team said. 

The legal team also made an interesting, but still rather weak argument. It referenced back to the Bosnia case, "When provisional measures were ordered, the armed conflict was still in progress… In this case, [the] Bosnia and Herzegovina governor specifically requested a provisional measure requiring Yugoslavia to cease and desist from any and all types of military or paramilitary activities against the people, state and government of Bosnia and Herzegovina governor," said Michale Shaw. But it was not granted. "Even though unlike in this case, an ongoing genocide was said to be in progress on the territory of the very state seeking provisional measures," he added. 

The Bosnia genocide in the 1990s killed more than 8,000 people. Did Israel mean to say, that if the court did not stop a genocide then, it should not do so now? 

The premise of the argument did not inspire hope. Of course, the 23,000 Palestinian deaths were repeatedly questioned — stating how it is recorded by a Hamas-run health ministry implying, the figures are not to be believed. 

However, there remains a problem. In the past, when Gaza was under attack and Palestinians were killed by Israel's military campaigns — the same ministry produced reliable records of the casualties of civilians. How do we know this? Because UN-affiliated organisations' figures were similar to those of the Gaza Health Ministry. 

Lastly, another interesting takeaway from Israel's legal team is how they invoked Rafael Lemkin, a Polish Jew, who coined the term genocide in the aftermath of the Holocaust. But perhaps it's lost on the same legal team how Lemkin Institute for Genocide Prevention posted on X, formerly known as Twitter, this on 31 December 2023: "The @LemkinInstitute strongly supports #SouthAfrica's decision to launch a case at the @cij_icj accusing Israel of genocide in Gaza. We encourage all nations and institutions to join forces to bring an end to the #genocideingaza and fight the impunity that allows genocide to happen again, and again, and again."

Nelson Mandela's legacy lives on 

Speaking of invoking, South Africa's legal team eloquently took Nelson Mandela's name in its opening argument — shedding light on the leader's legacy and unequivocal support for Palestinian liberation and cause. 

The 9-member legal team used statements from international organisations working on the ground, footage filmed by Palestinians and also, in some cases, uploaded by IDF, statistics and more to foolproof its argument. 

One of the many ways South Africa articulately presented its case is by showing the fluid transition of Israeli Prime Minister Benjamin Netanyahu's use of the biblical story of Amalek to IDF soldiers chanting Amalek rhetoric in uniform and calling for the destruction of Gaza. 

Photo: Reuters

One of the more striking parts of the speech was when South Africa's legal team argued, "More mass graves will be dug, more cemeteries will be bulldozed and bombed, and corpses violently exhumed denying even the dead any dignity or peace. 

Each day, ambulances, hospitals, and medics will continue to be attacked and killed. The first responders who have spent three months without international assistance – trying to dig families out of the rubble with their bare hands will continue to be targeted." 

In anticipation of Israel's argument and use of Hamas as self-defence, South Africa's legal team also said – this is paraphrased – "nothing can justify a genocide."  

"The situation is such that the experts are now predicting more Palestinians in Gaza may die from starvation and disease than air strikes," the legal team argued. It is perhaps also noteworthy how there was a communication cut-off through Gaza following the ICJ hearings — it has been reported earlier that Israel's attack intensified during the blackouts. 

What to expect from the ICJ ruling 

On The Katie Halper Show, a news podcast, Norman Finkelstein, an American political scientist and activist, voiced his scepticism on the ruling because he believes it will not be based on the merits of the arguments by the two parties but rather on politics. 

Eight votes are needed from the 15 judges at the ICJ to rule in favour of South Africa —  however, he said, China and Russia are likely to vote no because it may open a pandora's box into accusations of genocide against the respective countries. "The United States, Uganda, India, Germany and Australia will vote no," according to Finkelstein's predictions. 

Slovakia, France and Jamaica are the possible 'yes' ones. "It is hard to get one to flip," he added. 

South Africa is asking for provisional measures — this will mean an end to Israel's indiscriminate bombings and killings of Palestinians in Gaza, and prevent Israel from committing further crimes. This measure is an emergency order implemented before the main case is set to begin. 

If the ICJ rules against Israel, it will be another matter to see if it follows the international court's ruling.