SA tells ICJ in The Hague,‘genocide can never be justified’

“Genocide can never be justified – in any circumstances,” said Vaughan Lowe KC at the International Court of Justice on Thursday, on behalf of SA in its genocide case against Israel. 

SA has asked the court to indicate “provisional measures”: binding, interim, orders to immediately suspend its military operations in Gaza, to stop killing and injuring Palestinians and to stop “deliberately inflicting conditions of life calculated to bring about [their] destruction”.

The provisional measures hearing – which is being heard over Thursday and Friday – is only the first part of SA’s case against Israel. Its bigger case, to be argued in due course, is that Israel has violated the Genocide Convention in a number of ways, including by committing acts of genocide against the Palestinian people.

SA had already set out its case in a detailed 84-page written application, submitted to the court last month. What was new, or highlighted, in the oral submissions yesterday was an anticipation of possible arguments that would be coming from Israel’s side today.

Professor John Dugard SC, the leader of SA’s legal team, said that South Africans and Israelis “both have a history of suffering”.

“Both states have become parties to the Genocide Convention in the determination to end human suffering,” he said. But Dugard sought to dispel any argument that the court did not have jurisdiction to entertain the case on the basis that there should have been further bi-lateral discussions between the two countries.

He said it was “incontrovertible” that a dispute existed between the two countries: “SA strongly believes that what Israel is doing in Gaza amounts to genocide; Israel denies this and claims that such an accusation is legally and factually wrong and moreover is obscene.”

In saying genocide was never justifiable, Lowe was addressing the issue of self-defence: a possible argument by Israel that Israel’s actions are defensive, in the face of Hamas’ own attack, particularly the horrific attack of October 7 last year.

Lowe said: “No matter how outrageous or appalling an attack or provocation, genocide is never a permissible response. Every use of force, whether used in self-defence, or in enforcing an occupation, or in policing operations, must stay within the limits set by international law.”

Lowe also dealt with why SA has asked the court to order that Israel immediately suspend its military operations.

“Israel says that Palestine and Palestinians are not its target, and that its aim is to destroy Hamas. But months of continuous bombing … and cutting off food and water and electricity and communications to an entire population, cannot credibly be argued to be a man-hunt for members of Hamas,” he said.

He said a suspension of military operations was the only way to secure humanitarian relief.

There was also the question of genocidal intention, he said. “If any military operation, no matter how it is carried out, is carried out pursuant to an intention to destroy a ‘people’, in whole or in part, it violates the Genocide Convention, and it must stop.” 

Tembeka Ngcukaitobi SC addressed another issue that some commentators have raised: that Israel has said it is targeting Hamas and not Palestinians; and that where statements have been made that have strayed from this messaging, these were not from Israel’s government and it would therefore be hard to draw a causal link between those inflammatory and inciteful statements and the actions of the soldiers on the ground.

Ngcukaitobi said Israel’s special genocidal intent was “rooted in the belief” that the enemy was not just Hamas, but was “embedded in the fabric of Palestinian life in Gaza”. 

He referred to a televised speech by prime minister Benjamin Netanyahu to the Israeli forces on October 28 – preparing for the invasion of Gaza – in which Netanyahu urged the soldiers to “remember what Amalek has done to you”.

Ngcukaitobi said this was a reference to the Biblical command by God to Saul for the retaliatory destruction of the Amalekites: “Put to death men and women, children and infants, cattle and sheep, camels and donkeys”.

It has been reported that Israel intends to bring its own footage to the proceedings on Friday. In his portion of the address, Max du Plessis SC, said: “In the speeches to this court today, SA has chosen to avoid the showing of graphic videos and photos. It has decided against turning this court into a theatre for spectacle. It knows … the temptation for both sides in a dispute to parade pictures to shock.” 

Adila Hassim SC, in her address, also said that SA would use audio-visual material “with restraint and only where necessary, and always with respect to the Palestinian people”.

Though not graphic or violent images, two photographs, in Blinne Ní Ghrálaigh KC’s address, might be remembered as the most poignant moment of SA’s case on Thursday. The first was of a white board at a hospital in northern Gaza that looked as though it was originally used for planning purposes – with neat columns and rows, drawn in green permanent marker. 

On it was a hand-written message by a Médecins Sans Frontières doctor: “We did what we could. Remember us”.

The second photo was of the same whiteboard, after an Israeli strike on the hospital on November 21. The board lay dusty against a wall, crumpled and riddled with bullet holes. The doctor who wrote the message, Dr Mahmoud Abu Nujaila, was killed in the strike, Ní Ghrálaigh said.

The hearing continues on Friday.