In the second day of the Genocide case being heard before the International Court of Justice the Israeli team presented its case.
Israel argued that what the South African team presented was tantamount to a libel and that South Africa’s reference to 75 years of apartheid against the Palestinians was an outrageous charge. It asserted that the real genocide was the attack on Israel.
The legal team argued that the reality, which was not presented to the Court by South Africa, was that Israel was engaged in an armed conflict with Hamas (the Islamic Resistance Movement). It is a war that Israel did not start and did not want, but Israel has an inherent right to defend itself. In such circumstances the convention which deals with genocide would not apply but rather the conventions and customary international law which apply to the waging of war.
The Israeli team further argued that South Africa did not present a prima facie case of an intention to destroy a people in whole or in part. There was a conflict in which life was lost on both sides. To support this argument the Israeli team relied upon Israel’s extraordinary efforts to provide humanitarian aid to the Palestinian people. Examples were given such as Israel’s provision of drinking water, assistance in evacuation, allowing medical supplies as well as food supplies such as bread, sugar and salt for making bread.
Reference was also made to the fact that Israel would warn civilians so that they could evacuate. There was indeed no genocidal intent and any statements by Israeli officials must be regarded as wartime rhetoric.
Israel’s legal team argued that the genocide convention was not meant to be used in these circumstances but rather in circumstances which are unique – where the crime stands alone as the epitome of evil – the ultimate of wickedness. The threat of or the use of force is not enough to meet that bar. The understanding of the term genocide would be diluted and lost.
The legal team also argued that South Africa had no dispute with Israel – a prerequisite to initiating proceedings. They argued that the convention required that the dispute be drawn to the attention of Israel where there would be exchanges with a view to solving the dispute. South Africa would argue there were exchanges but Israel argues that these were perfunctory, there was no dispute and the application to the Court was born out of unilateral actions taken by South Africa.
South Africa has requested the court to order Israel, among other things, to suspend its military operations, take all measures necessary to prevent genocide, and to refrain from killing, injuring, or committing other acts constituting genocide against Palestinians. These measures are aimed at preventing possible “irreparable harm” while the court is deciding on the merits of the case. While South Africa did not have to prove genocide its team must be able to set out a prima facie case. The Israeli legal team argued that they had not done so. They also had to show that the genocide convention was in play. This had not been done either.
As they put it, to agree to any provisional measures would be to intervene in a war to the advantage of the aggressor. It would encourage terrorists who hide behind civilians to rely upon the genocide convention where civilians ended up being casualties of war. In their view the loss of life in Gaza was not exceptional when compared with other armed conflicts around the world.
It is expected that the ICJ could make its decision on the provisional measures in a matter of weeks.
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