Mzansi filed an urgent application with the ICJ to obtain an injunction against Israel’s ongoing onslaught on Gaza.
During the hearings, more than 100 people were killed in Israel’s ongoing bombardment of Gaza on Thursday, 11 January and worshippers at a mosque were targeted on Friday, 12 January.
Since 7 October, Israel has killed more than 23 000 people in Gaza, including nearly 10 000 children – that’s about one in every 100 people in Gaza - according to the Gaza Health Ministry. According to Human Rights Watch, more than 1 200 Israelis and foreign nationals have been killed in Israel.
South Africa’s landmark case against Israel accuses the occupying force of committing genocide in violation of the 1948 Genocide Convention.
The country’s representation focused on the atrocities being committed in the Palestinian territory – and chose not to show graphic images of the destruction and devastating loss of life.
Israel’s legal representatives presented arguments questioning jurisdiction, evidence of their warnings to limit harm, Mzansi’s terms being unwarranted and that there were no conditions that would justify the ICJ to rule for provisional measures to be implemented.
They also insisted that Hamas was using civilians as human shields and civilian infrastructure as hideouts.
Israel claimed it was acting in self-defence against Hamas and accused South Africa of collaborating with the organisation.
Key takeaways of Israel’s argument:
Jurisdiction
Lawyer Malcolm Shaw said South Africa didn't give Israel a chance to discuss their disagreement before taking the matter to court.According to Shaw, South Africa should have tried to resolve the matter directly before involving the court.
He argued that because South Africa did not try to do so, it could not prove that there was a dispute.
However, Shaw also pointed out that Israel has asked for consultations and that the need for court involvement indicates that there is a dispute.
"This is no genocide," he said.
Warnings to limiting human harm
Galit Raguan argued that Israel had taken the necessary measures to limit human harm.
She referred to inventions such as the dropping of leaflets, radio broadcasts, social media posts and thousands of calls to civilians instructing them to evacuate before attacks.
These communications indicate which areas are safe for evacuees, but it is well documented that safe areas have also been bombed.
Provisional measures
Israel opposed the interim measures requested by South Africa on the grounds that they were not necessary.The absence of provisional measures would allow Israel to continue its bombardment of Gaza.
Gilad Noam, Israel’s deputy attorney-general for international affairs, spoke out against the use of provisional measures, as Hamas is considered a terrorist organisation by Israel and other countries and has carried out “a large-scale terrorist attack”.
SA-Hamas ties
Israel also accused South Africa of having close ties with Hamas.
“It is a matter of public record, that South Africa enjoys close relations with Hamas, despite its formal recognition as a terrorist organisation by numerous states across the world. These relations have continued unabated even after the October 7 atrocities, " Tal Becker, representing Israel at the ICJ said.
Four things you need to know about Mzansi’s argument
‘No justification’
Justice and Correctional Service Minister Ronald Lamola pointed out that the violence in Gaza did not start on 7 October but has been a systemic oppression and violence for 76 years.
“No armed attack on a state territory, no matter how serious, even an attack involving atrocity crimes, can provide justification for or defence to breaches to the [1948 Genocide] Convention whether it’s a matter of law or morality,” he said.
‘Genocidal acts’
Advocate Adila Hassim detailed the severity of Israel’s onslaught and a series of violations of the Genocide Convention.“The actions show systematic patterns of conduct from which genocide can be inferred,” she said.
The genocidal acts that Israel is accused of include mass killings of Palestinians, bodily and mental harm, forced displacement and food blockade, the destruction of the healthcare system, and preventing Palestinian births.
The deployment of massive bombs, as Hassim pointed out, raises questions about the intention behind such indiscriminate attacks.
"Israel deployed 6 000 bombs per week. At least 200 times [Israel] has deployed 2 000 pounds bombs in southern areas of Palestine designated as safe. These bombs have also decimated the north, including refugee camps. Two-thousand pounds are some of the biggest and most destructive bombs available," said Hassim.
‘Genocidal intent’
South Africa outlined in detail how Israeli leaders have made utterances of genocidal intent that has emboldened the Israeli Occupational Forces on the frontlines.
Advocate Tembeka Ngcukaitobi argued that “Israel’s political leaders, military commanders and persons holding official positions have systematically and in explicit terms declared their genocidal intent".
Jurisdiction
Professor John Dugard SC outlined the numerous times South Africa voiced its concerns about Israel’s actions in Gaza – including at the Security Council, in public statements and a formal diplomatic demarché, at a BRICS meeting and an emergency sitting of the UN General Assembly and “no response from Israel was forthcoming”.
He also explained that the Genocide Convention, which Israel is party to, makes it clear that states parties are guardians of the Genocide Convention and unlike other treaties designed to protect human rights it does not require states to pursue negotiations as a prelude to approaching the ICJ.
“The court has indicated that in an application for provisional measures it is sufficient to show that there is a prima facie basis for jurisdiction. It is submitted that South Africa has convincingly established the existence of a dispute between it and Israel over the fulfilment of the latter’s obligations under the Genocide Convention,” Dugard said.
What next?
The ICJ will announce its decision on the provisional measures in coming weeks. A ruling on the issue of genocide could take years.
If the court decided to implement interim measures, this would put a legal obligation on Israel to end its onslaught. But while the court's rulings are final, it has no authority to enforce them. It relies on UN member states to apply the decisions of the court under international law.
