The second day of the hearing on South Africa’s case accusing Israel of genocide in Gaza took place at the International Court of Justice (ICJ) on January 12. Over the course of three hours, Israel presented its response to the arguments made by Pretoria’s legal team the day prior.
Friday’s hearings were held on the 98th day of Israel’s relentless bombardment of besieged Gaza. In the 24 hour period between the hearings at the ICJ, Israel had killed approximately 151 Palestinians. The death toll since October now stands at over 23,700, with 60,000 people wounded, as per latest figures released by the Palestinian Ministry of Health on Friday.
On January 11, South Africa had presented in exhaustive detail the genocidal acts being committed by Israel in Gaza, including the mass killings of Palestinians and the infliction of “serious mental and bodily harm”. Arguments by lawyers Adila Hassim and Blinne Ní Ghrálaigh had described in detail the forced displacement and drastic humanitarian crisis unfolding in Gaza, including the “immediate risk of deaths by starvation, dehydration and disease”.
Read more: Genocide as pattern and policy: ICJ hears South Africa’s case against Israel
In its arguments on Friday, Israel refused to respond to the substance and evidence presented in South Africa’s case. Rather, in his opening address, Tal Becker, the legal advisor to the Israeli foreign ministry stated that South Africa had put forth a “distorted factual and legal picture”, and that it had tried to “weaponize the term genocide against Israel”.
Hamas responsible for Israel committing genocide?
While South Africa’s application placed the ongoing war in Gaza in the crucial historical context of the Nakba, occupation, apartheid, and siege, Becker asserted that Israel was engaged in “a war it did not start”, defending itself against Palestinian groups including Hamas. Israel’s lead counsel, Malcolm Shaw, would later repeat this argument, that the “true context” of the case lay in the attack of October 7.
On Thursday, the Israeli foreign ministry stated that South Africa was the “legal arm of Hamas”. In his address, Becker once again alleged South Africa’s “close ties” with Hamas, calling on the ICJ to impose provisional measures on Pretoria, and calling the application “libel” “designed to deny Israel the right to defend itself”.
This right of self-defense, which the ICJ in 2004 had declared Israel was not entitled to in a territory it was occupying, was repeated throughout Friday’s hearing. Instead of providing an answer to the specific allegations raised under the Genocide Convention, Israel repeatedly invoked its supposed adherence to international humanitarian law during armed conflict.
Becker made another central argument that has been repeated by Israel in the preceding months— that Hamas had “systematically and unlawfully embedded its military operations, militants, and assets throughout Gaza within and beneath densely populated civilian areas”.
He spoke of underground tunnels, with “thousands of access points and terrorist hubs located in homes, mosques, UN facilities, schools, and perhaps most shockingly, hospitals”, calling it an “extensive” and “pre-planned method of warfare”, using “civilians, sensitive sites, and civilian objects as shields”, an argument which is then extended to present Israel’s attacks on residential buildings, schools, and hospitals as “legitimate military targets”.
Becker was followed by Israel’s lead counsel, British lawyer Malcolm Shaw, who spent the substantial part of his arguments describing procedural and technical issues in South Africa’s application to the court, that Pretoria did not give Israel a “reasonable opportunity to engage with it on the matter” before raising the “dispute”, as defined under Article 9 of the Genocide Convention, to the ICJ.
Statements by Israeli authorities as “random assertions”
South Africa’s application, and arguments on Thursday, described in detail the intent to commit genocide in 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,” Tembeka Ngcukaitobi had said on Thursday.
“The statements were made by persons in command of the state, they communicated state policy. it is simple— if the statements were not intended they would not have been made,” he had added, showing the court videos of Israeli soldiers dancing and chanting that “there are no uninvolved in Gaza” and repeating the invocations of Amalek made by Prime Minister Benjamin Netanyahu.
However, for Shaw, “there is little beyond random assertions that Israel has, or has had, the specific intent to destroy, in whole or in part, the Palestinian people”. The argument sought to deflect and isolate the carefully documented genocidal statements as “certain comments made by some Israeli politicians” and “random quotes”.
Shaw was dismissive of the fact that these statements had been made by the senior most political and military leadership, including Defense Minister Yoav Gallant who had likened Palestinians to “human animals” and stated “we will eliminate everything”.
Civilian harm “unintended but lawful”
It is also important to note that it was only on January 9, just two days before the hearings at the ICJ that Israel’s attorney general released a statement saying that “calls for, among other things, intentional harm to uninvolved civilians…may constitute criminal offenses including incitement”. The very next day, the deputy speaker of the Israeli Knesset, Nissim Vaturi declared that he stood behind his previous statement to “burn Gaza down”, adding that “there are no innocents there”.
Meanwhile, on Friday, Shaw then spoke of Israel’s attempts to “mitigate civilian harm”, including warnings, telephone calls, and leafleting and “facilitation of humanitarian assistance”.
While citing government documents on “solutions” to “ensure the required supply of water, food, and medicine” and “increasing the amounts of trucks entering, with necessary inspections”, Israel’s arguments unsurprisingly did not explain how it was able to exert this extent of control over what was going in and out of Gaza in the first place.
Shaw was followed by Galit Raguan, the acting director of the Israeli justice ministry’s international justice division, similarly placed the blame of the killings in Gaza on Hamas, stating that “urban warfare will always result in civilian harm” and that they “may be the unintended but lawful result of attacks on military targets”.
Raguan continued to claim that Hamas had used hospitals for military purposes, even going on to falsely claim that Israel had not bombed hospitals and that damage and harm occurred due to “hostilities” in the “vicinity” and “always as a direct result of Hamas’ abhorrent method of warfare”.
She spoke of Israel’s “civilian harm mitigation unit”, and safe travel routes for civilians— the very routes Israel has bombed and attacked— and “localized pauses” for people to move, as well as advanced warnings through leaflets, broadcast messages, “warning calls” and even an X account to provide information for specific evacuation areas. Nevermind the fact that this was supposedly intended for a population that has been subjected to repeated telecommunications and internet blackouts. One such blackout was reported on Friday as well.
Total blockade
The Israeli team also spoke of the Israeli Army Coordinator of Government Activities in the Territories (COGAT) and its cooperation with international organizations as part of Israel’s humanitarian efforts.
On October 9, the head of COGAT, Major General Ghassan Alian had stated, “Human animals are dealt with accordingly. Israel has imposed a total blockade on Gaza, no electricity, no water, just damage. You wanted hell, you will get hell.” The statement is included in South Africa’s submission to the ICJ.
Moreover, even though Israel’s legal team was trying its best to assert that it was doing everything possible to “minimize civilian harm” while Hamas was trying to “maximize it”, Israel’s lies were debunked almost in real time as the UN Office for the Coordination of Humanitarian Affairs issued its Flash Update on Friday.
“Between 1 and 11 January, only 21 per cent (5 of 24) of planned aid deliveries of food, medicines, water, and other lifesaving supplies to the north of Wadi Gaza proceeded. Humanitarian partners were forced to cancel or delay missions in two instances due to excessive delays at Israeli checkpoints or because the agreed routes were unpassable.”
UN OCHA added,“Multiple planned missions (between 7 and 10 January) to deliver urgent medical supplies to the Central Drug Store in Gaza city, as well as planned missions to deliver fuel to water and sanitation facilities in Gaza city and the north, were denied by the Israeli authorities,” the update noted, while Israel’s lawyer, Omri Sender had told the ICJ that there were no restrictions on water.
If the supply of food, medical supplies and other humanitarian assistance is truly as unimpeded as Israel claims, how is it that the entire population of Gaza, or 2.3 million Palestinian people, is suffering from “crisis or worse levels of food insecurity”?
In calling on the ICJ to reject South Africa’s request for provisional measures, Israel has relied on its supposed facilitation of humanitarian aid as evidence that it does not have genocidal intent, alongside its argument that its actions are in fact self-defense.
While presenting her arguments on South Africa’s behalf on Thursday, senior counsel Blinne Ní Ghrálaigh had specifically stated that “any scaling up by Israel of access to humanitarian relief to Gaza, in response to these proceeding or otherwise, would be no answer to South Africa’s request for provisional measures”.
Citing previous cases where the Court had found risks of “irreparable harm” would persist in spite of unilateral assurances to remove restrictions on medicines, food stuffs and other essential humanitarian goods, Ghrálaigh had argued that “Israel continues to deny that it is responsible for the humanitarian crisis it has created, even as Gaza starves”.
She had emphasized that risks would remain despite unilateral moves on Israel’s part given its “past and current conduct towards the Palestinian people, including the 16 years of brutal siege on Gaza”. Ghrálaigh pointed out how shortly after Israel had opened the Kerem Shalom crossing in late December, it was struck in a drone attack.
“Nowhere and nobody is safe,” she stressed.
Next steps for ICJ case
The 15 judges of the ICJ along with the ad-hoc judges that Israel and South Africa have each nominated will now deliberate upon South Africa’s request for provisional measures, with an interim ruling expected in the coming weeks. A final verdict on the broader case brought by South Africa could extend for years. The ICJ’s decisions are legally binding.
Meanwhile, Germany issued a statement in support of Israel on Friday, stating that the accusation of genocide “had no basis whatsoever”. Government spokesperson Steffen Hebestreit added that Germany would officially intervene in the main case at the ICJ as a Third Party.
