Australia / Israel Review

Israel’s response to South Africa at the ICJ

The text below is selected points excerpted from the opening remarks made by the Israeli legal team on January 12, at the International Court of Justice in the Hague, in response to the “Proceedings instituted by South Africa against the State of Israel” on Dec. 29, 2023 (South Africa v. Israel). 

• The State of Israel is singularly aware of why the Genocide Convention, which has been invoked in these proceedings, was adopted. Seared in our collective memory is the systematic murder of six million Jews as part of a pre-meditated and heinous program for their total annihilation.
• Given the Jewish people’s history, it is not surprising that Israel was among the first States to ratify the Genocide Convention, without reservation, and to incorporate its provisions in its domestic legislation. For some, the promise of “Never Again” for all peoples is a slogan; for Israel, it is the highest moral obligation. 
• The Applicant has now sought to invoke this term in the context of Israel’s conduct in a war it did not start and did not want. A war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad, and other terrorist organisations whose brutality knows no bound.
• The civilian suffering in this war, like in all wars, is tragic. It is heartbreaking. The harsh realities of the current hostilities are made especially agonising for civilians given Hamas’ reprehensible strategy of seeking to maximise civilian harm to both Israelis and Palestinians, even as Israel seeks to minimise it. 
• But, as this Court has already made clear, the Genocide Convention was not designed to address the brutal impact of intensive hostilities on the civilian population, even when the use of force raises “very serious issues of international law” and involves “enormous suffering” and “continuing loss of life.” The Convention was set apart to address a malevolent crime of the most exceptional severity. 
• The attempt to weaponise the term genocide against Israel in the present context, does more than tell the Court a grossly distorted story, and it does more than empty the word of its unique force and special meaning. It subverts the object and purpose of the Convention itself – with ramifications for all States seeking to defend themselves against those who demonstrate total disdain for life and for the law.
• On Saturday, October 7, a Jewish religious holiday, thousands of Hamas and other militants breached Israel’s sovereign territory by sea, land, and air, invading over 20 Israeli communities, bases and the site of a music festival. What proceeded, under the cover of thousands of rockets fired indiscriminately into Israel, was the wholesale massacre, mutilation, rape and abduction of as many citizens as the terrorists could find before Israel’s security forces repelled them. Openly displaying elation, they tortured children in front of their parents, and parents in front of their children, burned people, including infants, alive, and systematically raped and mutilated scores of women, men and children. All told, some 1,200 people were butchered that day, more than 5,500 maimed, and some 240 hostages abducted, including infants, entire families, persons with disabilities and Holocaust survivors, some of whom have since been executed; many of whom have been tortured, sexually abused and starved in captivity. 
• We know of the brutality of October 7 not only from the harrowing testimonies of the survivors, the unmistakable proof of carnage and sadism left behind, and the forensic evidence taken at the scene. We know it because the assailants proudly filmed and broadcast their barbarism. 
• The events of that day are all but ignored in the Applicant’s submissions. But we are compelled to share with the Court some fraction of its horror – the largest calculated mass murder of Jews in a single day since the Holocaust. 
• We do so not because these acts – however sadistic and systematic – release Israel of its obligations to uphold the law as it defends its citizens and territory. That is unquestionable. We do so rather because it is impossible to understand the armed conflict in Gaza, without appreciating the nature of the threat Israel is facing, and the brutality and lawlessness of the armed force confronting it. 
• As stated, none of these atrocities absolve Israel of its obligations under the law. But they do enable the Court to appreciate three core aspects of the present proceedings, which the Applicant has obscured from view.
• First, that if there have been acts that may be characterised as genocidal, then they have been perpetrated against Israel. If there is a concern about the obligations of States under the Genocide Convention, then it is in relation to their responsibilities to act against Hamas’ proudly declared agenda of annihilation, which is not a secret, and is not in doubt. 
• Second, it is in response to the slaughter of October 7 – which Hamas openly vows to repeat – and to the ongoing attacks against it from Gaza, that Israel has the inherent right to take all legitimate measures to defend its citizens and secure the release of the hostages. This right is also not in doubt. It has been acknowledged by States across the world. 
• Astonishingly, the Court has been requested to indicate a provisional measure calling on Israel to suspend its military operations. But this amounts to an attempt to deny Israel its ability to meet its legal obligations to the defence of its citizens, to the hostages, and to over 110,000 internally displaced Israelis unable to safely return to their homes. 
• Hamas is not party to these proceedings. The Applicant, by its request, seeks to thwart Israel’s inherent right to defend itself – to let Hamas not just get away with its murder, literally, but render Israel defenceless as Hamas continues to commit it. 
• If the claim of the Applicant now is that in the armed conflict between Israel and Hamas, Israel must be denied the ability to defend its citizens – then the absurd upshot of South Africa’s argument is this: Under the guise of the allegation against Israel of genocide, this Court is asked to call for an end to operations against the ongoing attacks of an organisation that pursues an actual genocidal agenda. An organisation that has violated every past ceasefire and used it to rearm and plan new atrocities. An organisation that declares its unequivocal resolve to advance its genocidal plans. That is an unconscionable request, and it is respectfully submitted that it cannot stand. 
• The hostilities between Israel and Hamas have exacted a terrible toll on both Israelis and Palestinians. But any genuine effort to understand the cause of this toll must take account of the horrendous reality created by Hamas within the Gaza Strip. 
• When Israel withdrew all its soldiers and civilians from Gaza in 2005 it left a coastal area with the potential to become a political and economic success story. Hamas’ violent take-over in 2007 changed all that. Over the past 16 years of its rule, Hamas has smuggled countless weapons into Gaza, and has diverted billions in international aid, not to build schools, hospitals or shelters to protect its population from the dangers of the attacks it launched against Israel over many years, but rather to turn massive swathes of the civilian infrastructure into perhaps the most sophisticated terrorist stronghold in the history of urban warfare. 
• Remarkably, counsel for South Africa described the suffering in Gaza as “unparalleled and unprecedented”, as if they are unaware of the utter devastation wrought in wars that have raged just in recent years around the world. Sadly, the civilian suffering in warfare is not unique to Gaza. What is actually “unparalleled and unprecedented” is the degree to which Hamas has entrenched itself within the civilian population and made Palestinian civilian suffering an integral part of its strategy. 
• Hamas has systematically and unlawfully embedded its military operations, militants and assets throughout Gaza within and beneath densely populated civilian areas. It has built an extensive warren of underground tunnels for its leaders and fighters several hundred miles in length throughout the Strip, with thousands of access points and terrorist hubs located in homes, mosques, UN facilities, schools and perhaps most shockingly, hospitals. 
• This is not an occasional tactic. It is an integrated, pre-planned, extensive and abhorrent method of warfare. Purposely and methodically murdering civilians. Firing rockets indiscriminately. Systematically using civilians, sensitive sites and civilian objects as shields. Stealing and hoarding humanitarian supplies – allowing those under its control to suffer, so that it can fuel its fighters and terrorist campaign.
• The appalling suffering of civilians – both Israeli and Palestinian – is first and foremost the result of this despicable strategy; the horrible cost of Hamas not only failing to protect its civilians but actively sacrificing them for its own propaganda and military benefit. And if Hamas abandons this strategy, releases the hostages and lays down its arms, the hostilities and suffering would end. 
• There are many distortions in the Applicant’s submission to the Court, but as shall be demonstrated by Counsel, there is one that overshadows them all. In the Applicant’s telling, it is almost as if there is no intensive armed conflict taking place between two parties at all, no grave threat to Israel and its citizens, only an Israeli assault against Gaza. 
• The Court is told of widespread damage to buildings, but it is not told, for example, how many thousands of these buildings were destroyed because they were booby-trapped by Hamas, how many became legitimate targets because of the strategy of using civilian objects and protected sites for military purposes, how many buildings were struck by over 2000 indiscriminate terrorist rockets that misfired and landed in Gaza itself. 
• The Court is told of over 23,000 casualties, as the Applicant repeats, as many have, unverified statistics provided by Hamas itself – hardly a reliable source. Every civilian casualty in this conflict is a human tragedy that demands our compassion. But the Court is not told how many thousands of casualties are in fact militants, how many were killed by Hamas fire, how many were civilians taking direct part in hostilities, and just how many are the tragic result of legitimate and proportionate use of force against military targets. 
• And the Court is also told of the dire humanitarian situation in Gaza, but it is not told of Hamas’ practice of stealing and hoarding aid, it is not told of the extensive Israeli efforts to mitigate civilian harm, of the humanitarian initiatives being undertaken to enable the flow of supplies and provide medical attention to the wounded. 
• The nightmarish environment created by Hamas has been concealed by the Applicant, but it is the environment in which Israel is compelled to operate. Israel is committed, as it must be, to comply with the law, but it does so in the face of Hamas’ utter contempt for the law. It is committed, as it must be, to demonstrate humanity, but it does so in the face of Hamas’ utter inhumanity.
• It is plainly inconceivable – under the terms set by this very Court – that a State conducting itself in this way may be said to be engaged in genocide, not even prima facie. 
• The key component of genocide – the intention to destroy a people in whole or in part – is totally lacking. What Israel seeks by operating in Gaza is not to destroy a people, but to protect a people, its people, who are under attack on multiple fronts, and to do so in accordance with the law, even as it faces a heartless enemy determined to use that very commitment against it.
• As will be detailed by Counsel, Israel’s lawful aims in Gaza have been clearly and repeatedly articulated by its Prime Minister, its Defence Minister, and all members of the War Cabinet. As the Prime Minister reiterated yet again just this week “Israel is fighting Hamas terrorists, not the civilian population.” 
• Israel aims to ensure that Gaza can never again be used as a launch pad for terrorism. As the Prime Minister reaffirmed, Israel seeks neither to permanently occupy Gaza or to displace its civilian population. It wants to create a better future for Israelis and Palestinians alike, where both can live in peace, thrive and prosper, and where the Palestinian people have all the power to govern themselves, but not the capacity to threaten Israel. 
• If there is a threat to that vision – if there is a humanitarian threat to the Palestinian civilians of Gaza – it stems primarily from the fact that they have lived under the control of a genocidal terrorist organisation that has total disregard for their life and well-being. That organisation, Hamas, and its sponsors, seek to deny Israel, Palestinians, and Arab States across the region, the ability to advance a common future of peace, co-existence, security, and prosperity. Israel is in a war of defence against Hamas – not against the Palestinian people – to ensure that they do not succeed.
• In these circumstances, there can hardly be a charge more false or more malevolent than the allegation against Israel of genocide.
• Madame President, Members of the Court, the Genocide Convention was a solemn promise made to the Jewish people, to all peoples, of “Never Again”. The Applicant invites the Court to betray that promise. If the term genocide can be so diminished in the way it advocates, if Provisional Measures can be triggered in the way it suggests, the Convention becomes an aggressor’s charter. It will reward, indeed encourage, the terrorists who hide behind civilians, at the expense of the States seeking to defend against them. 

Dr Tal Becker serves as the legal adviser of the Israeli Ministry of Foreign Affairs and is a veteran member of successive Israeli peace negotiation teams. He was raised in Australia.