[News] At The Hague, Israel Mounted a Defense Based in an Alternate Reality

[Anti-Imperialist News]

theintercept.com <https://theintercept.com/2024/01/12/icj-israel-genocide/>
At The Hague, Israel Mounted a Defense Based in an Alternate Reality
Jeremy Scahill
January 12, 2024

A team of Israeli lawyers and officials presented their defense at The
Hague on Friday in the second day of the genocide case brought before the
International Court of Justice
<https://theintercept.com/2024/01/11/israel-genocide-hague-south-africa/>
by the government of South Africa. The lawyers portrayed Israel as the
actual victim of genocide, not Gaza, accused South Africa of supporting
Hamas, and painted South Africa’s government as functioning as the legal
arm of the Palestinian militants who led the deadly raids into Israel on
October 7.

Israel benefitted greatly from the fact that there was no cross examination
permitted or debate allowed during these proceedings. It embarked on a bold
mission to do in a court of international law what its military and
political officials have done day and night throughout the course of this
war against Gaza: unleash a deluge of what was known within the Trump
administration as “alternative facts.”

Israel’s defense was the inverse of South Africa’s case yesterday, and as
weak in offering documented facts as South Africa’s was powerful. History
began on October 7, the Israelis seemed to say, South Africa is Hamas,
South Africa did not give Israel a chance to meet up and chat about Gaza
before suing for genocide, and actually the Israel Defense Forces is the
most moral entity on Earth. As for the voluminous public statements by
senior Israeli officials indicating genocidal intent, those were just
“random assertions” by some irrelevant underlings. Prime Minister Benjamin
Netanyahu’s statements invoking a murderous story from the Bible about
killing the women, infants, and cattle of your enemies? The South Africans
just don’t understand theology and presented Netanyahu’s words out of
context.

While Israel’s lawyers made legal arguments that the genocide charges
leveled against it are invalid, their primary strategy was to appeal to the
court on jurisdictional and procedural matters, hoping that they could form
the basis for the panel of international judges to dismiss South Africa’s
case. Aware of the global audience, Israel also sought to reinforce its
claims of righteousness and self-defense in fighting the war in Gaza.

Israel’s representative Tal Becker opened his government’s rebuttal by
telling the judges at the ICJ that South Africa’s case “profoundly
distorted the factual and legal picture,” claiming it sought to erase
Jewish history. He charged that the legal arguments made by South Africa’s
team were “barely distinguishable” from Hamas’s rhetoric and accused them
of “weaponizing” the term “genocide.”

Becker called October 7 “the largest calculated mass murder of Jews since
the Holocaust” and pleaded with the court to factor in the “brutality and
lawlessness” of the enemy Israel says it is fighting in Gaza. Israel, he
said, has a lawful right to use all available means to respond “to the
slaughter of October 7 which Hamas has vowed to repeat.”

He repeatedly attacked the South African government, accusing it of doing
Hamas’s bidding and alleging that its true agenda was to “thwart” Israel’s
right to defend itself. “South Africa enjoys close relations with Hamas,”
Becker said. “These relations have continued unabated even after the
October 7 atrocities.” He said that South Africa, not Israel, should be
subjected to provisional measures by the ICJ for its alleged support of
Hamas. Becker neglected to mention the fact that Netanyahu himself long
advocatedOpens in a new tab
<https://www.nytimes.com/2023/12/10/world/middleeast/israel-qatar-money-prop-up-hamas.html>
for Hamas to retain power in Gaza and worked to ensure the flow of money to
the group from Qatar continued over the years, believing it to be the best
strategy to prevent the establishment of a Palestinian state.

Becker rejected South Africa’s characterization of the historical scale of
civilian destruction in Gaza — which has now killed over 10,000 children —
arguing that what is actually “unparalleled and unprecedented” in this war
is Hamas “embedding its military operations throughout Gaza within and
beneath” densely populated areas. Becker spoke as though many of Israel’s
most outlandish claims about Hamas’s underground operations have not been
proven false or shown to be greatly exaggerated, such as the Israeli claim
that there was essentially a Hamas Pentagon under al-Shifa Hospital
<https://theintercept.com/2023/11/21/al-shifa-hospital-hamas-israel/>.

While Israel’s lawyers made legal arguments that the genocide charges
leveled against it are invalid, their primary strategy was to appeal to the
court on jurisdictional and procedural matters.

Becker also alleged that South Africa’s lawyers had failed to mention how
many of the buildings blown up and destroyed in Gaza over the past three
months of sustained Israeli bombing were actually “boobytrapped” by Hamas
rather than destroyed by Israel. It was a risible claim given not only the
scale of the Israeli bombardment of entire neighborhoods, but also because
Israeli soldiers have posted videosOpens in a new tab
<https://www.pbs.org/newshour/world/videos-of-israeli-soldiers-acting-maliciously-emerge-amid-international-outcry-against-tactics-in-gaza>
of themselves gleefully hitting the detonate buttonOpens in a new tab
<https://www.tiktok.com/@middleeasteye/video/7305511498158181664> to
obliterate whole neighborhoods. He dismissed civilian death and injury
figures provided by Gaza health authorities, saying that South Africa’s
lawyers had failed to mention how many of the dead Palestinians were
actually Hamas operatives. It was a striking point given that Israeli
officials have openly and repeatedly said that there are no innocents in
Gaza, and that United Nations workers and journalists killed by Israel are
actually secret Hamas agents.

“The nightmarish environment created by Hamas has been concealed by” South
Africa, Becker charged. “Israel is committed to comply with the law, but it
does so in the face of Hamas’s utter contempt for the law.” Becker did not
bother to address any of the scores of U.N. resolutionsOpens in a new tab
<https://www.un.org/unispal/document-category/resolution/> over the decades
condemning the illegality of Israel’s apartheid regime and its illegal
occupations, not to mention its own well-documented use of Palestinian
children as civilian shieldsOpens in a new tab
<https://www.btselem.org/topic/human_shields> and the intentional killing
and maimingOpens in a new tab
<https://www.haaretz.com/israel-news/2020-03-06/ty-article-magazine/.highlight/42-knees-in-one-day-israeli-snipers-open-up-about-shooting-gaza-protesters/0000017f-f2da-d497-a1ff-f2dab2520000>
of nonviolent protesters.

Becker also claimed that Israel was complying with international law in all
of its operations in Gaza. “Israel does not seek to destroy a people, but
to protect a people — its [own] people,” he said, adding that Israel is
engaged in a “war of defense against Hamas, not the Palestinian people.”
There could “hardly be a charge more false and more malevolent than the
charge of genocide.” He accused South Africa of abusing the world court and
turning it into an “aggressor’s charter.”

Malcolm Shaw, a British lawyer representing Israel, opened his argument by
attacking South Africa’s reference on Thursday to what it described as
Israel’s 75-year Nakba against the Palestinians. Shaw called this
characterization as “outrageous” and said the only relevant historical
“context” were the events of October 7, which he termed “the real genocide
in this situation.” Given the civilian death toll caused by Israel in Gaza
— upward of 23,000 as of this week — it was a stunning statement. By
Israel’s own official count, some 1,200 people were killed on October 7. Of
these, 274 were soldiers, 764 were civilians, 57 were Israeli police, and
38 were local security guards. It has still not been determined how many
Israelis were killed in “friendly fire” incidents by Israeli forces who
responded to the Hamas attacks that day.

Shaw and other lawyers representing Israel acknowledged that civilians had
been killed during Israel’s military operations, though Shaw contended that
“armed conflict, even when fully justified and conducted lawfully, is
brutal and costs lives.” But, he said, Israel was engaged in a lawful and
proportionate military campaign and said the ICJ was not an appropriate
venue to review the Gaza war. “The only category before this court is
genocide. Not every conflict is genocidal,” Shaw asserted. “If claims of
genocide were to become the common currency of our conflict … the essence
of this crime would be diluted and lost.”

Shaw spent much of his time arguing that South Africa had failed to follow
the mandated procedures for bringing a third-party genocide charge before
the world court. He accused South Africa’s government of failing to
sufficiently engage in direct communications with Israel to inform it that
there was a conflict between the two states. South Africa “seems to believe
that it does not take two to tango,” he said. South Africa “decided
unilaterally that a dispute existed” between Israel and South Africa,
despite what Shaw called Israel’s “conciliatory and friendly” offers to
meet with South Africa to discuss its concerns about the Gaza war. This
defies common sense, given that in November, Pretoria publicly accused
Israel of genocide and called forOpens in a new tab
<https://www.africanews.com/2023/11/21/south-africa-calls-on-icc-to-arrest-netanyahu//#:~:text=The%20South%20African%20government%20on,ICC%20does%20not%20do%20so.>
the International Criminal Court to issue a warrant for Netanyahu’s arrest.
Israel responded by withdrawing its ambassador.

Shaw then addressed the voluminous statements made by Israeli officials
introduced in court by South Africa as evidence of “genocidal intent.” Shaw
dismissed these statements as “random assertions” that failed “to
demonstrate that Israel has or has had the intent to destroy” the
Palestinian people. He contended that none of those statements constituted
an official policy of the Israeli government and said the only relevant
factor for the court to consider is whether such statements reflected
official decisions or directives made by the Israeli leaders and its war
Cabinet. Shaw declared they did not, citing several official Israeli
statements directing armed forces to comply with international laws and to
make efforts to protect civilians from harm or death. He neglected to
respond to the direct connections drawn, including through video evidence,
by South Africa’s legal team showing how Israeli forces on the ground
echoed Israeli officials’ statements about destroying Gaza as they laid
siege to the strip.

The British lawyer directly addressed Netanyahu’s invocation of the
biblical story of the destruction of Amalek, in which God ordered the
Israelites to “attack the Amalekites and totally destroy all that belongs
to them. Do not spare them; put to death men and women, children and
infants, cattle and sheep, camels and donkeys.” Shaw argued there was “no
need here for a theological discussion.” South Africa, he charged, took
Netanyahu’s words out of context and failed to include the portion of his
statement where he emphasized that the IDF was the “most moral army in the
world” and “does everything to avoid harming the uninvolved.” The
implication of Shaw’s argument is that Netanyahu’s platitudes about the
nobility of the IDF somehow nullified the significance of invoking a
violent biblical edict to describe a military operation against people
Israeli Defense Minister Yoav Gallant described as “human animals.”

After offering a litany of public Israeli statements about protecting
civilians and offering humanitarian aid to the Palestinians, Shaw
quipped, “Genocidal intent?” as though these words and claims somehow erase
the actual actions the entire world has watched daily for more than three
months. With no sense of shame, Shaw characterized Israel’s statements
directing Palestinians in Gaza to immediately evacuate their homes as a
humanitarian gesture. Yesterday, South Africa called the evacuation order
for over a million people on short notice an act of genocide in and of
itself.

In a moment of supreme gaslighting, Shaw concluded his presentation by
accusing the government of South Africa of “complicity in genocide” and
failing in its “duty to prevent genocide.” He charged, “South Africa has
given succor and support to Hamas at the least.” He said the allegations
against Israel “verge on the outrageous” and argued that Hamas’s conduct,
not Israel’s, meets the “statutory definition of genocide.” Unlike Hamas,
he continued, Israel has made “unprecedented efforts at mitigating civilian
harm … as well as alleviating hardship and suffering” to its own detriment.

Galit Rajuan, another Israeli lawyer, argued that Israel was operating
within the rules of law in its attacks on Gaza. She spent considerable time
accusing Hamas of using hospitals and other civilian sites to operate
militarily and to hold Israeli hostages. South Africa, she said, pretended
“as if Israel is operating in Gaza against no armed adversary” and said the
civilian deaths and destruction caused by Israel’s operations is “the
desired outcome” Hamas wants. “Many civilian deaths are caused by Hamas,”
she alleged.
[image: THE HAGUE, NETHERLANDS - JANUARY 12: A leaflet with a drawing of
Israeli Prime Minister Benjamin Netanyahu and the text 'genocide' lies on
the curbside in front of the International Court of Justice on January 12,
2024 in The Hague, Netherlands. On January 11 and January 12 at the
International Court of Justice (ICJ), the judicial body of the United
Nations, in The Hague, South Africa seized the ICJ, to ask it to rule on
possible acts of "genocide" in the Gaza Strip by Israel. (Photo by Michel
Porro/Getty Images)]

A leaflet with a drawing of Israeli Prime Minister Benjamin Netanyahu and
the text “genocide” lies on the curbside in front of the International
Court of Justice on Jan. 12, 2024 in The Hague, Netherlands.
Photo: Michel Porro/Getty Images

She repeated claims that have been debunked about Hamas using hospitals for
military operations and holding hostages, claiming that any damage Israel
had done to hospitals in Gaza was “always as a direct result of Hamas’s
abhorrent method of warfare.”

Responding to South Africa’s assertion that Palestinians were given just 24
hours to flee their homes and hospitals, Rajuan claimed Israel had given
the warnings weeks in advance through leaflets, online maps, and social
media accounts. She did not mention that Israel has frequently shut down
the internet in areas of Gaza and has repeatedly struck areas to which it
told people to flee.

After describing what she characterized as Israel’s extensive efforts to
deliver aid to the people of Gaza, Rajuan said it was evidence that the
charge of genocide is “frankly untenable.” She said she had only told the
court of a “mere fraction” of the efforts Israel had made to warn civilians
to leave their homes and to deliver aid but that it “is enough to
demonstrate … that the allegation of the intent to commit genocide is
baseless.” Her portrayal of Israel as a beneficent humanitarian moving
mountains to alleviate the suffering Palestinians would be laughable if it
wasn’t so deadly. But such statements are easy to offer when your official
policy is to portray aid organizations and U.N. workers as Hamas
operatives.

For monthsOpens in a new tab
<https://www.reuters.com/world/middle-east/us-says-israel-not-doing-enough-allow-fuel-aid-into-gaza-2023-12-05/>,
international aid organizations have condemned Israel, which functions as
the overlord of what goes in and out of Gaza, for obstructing humanitarian
aid deliveries into Gaza. Just this week, U.N. officials saidOpens in a new
tab
<https://www.reuters.com/world/un-deplores-israels-systematic-refusal-grant-access-north-gaza-2024-01-12/>
that Israel is blocking it from getting aid to northern Gaza, while the
World Health Organization saidOpens in a new tab
<https://www.aljazeera.com/news/2024/1/10/who-facing-near-insurmountable-challenges-in-gaza-aid-delivery>
it is facing “insurmountable” challenges in delivering aid. Nonetheless,
Omri Sender, another lawyer for Israel, claimed that Israel is delivering
large quantities of aid daily to Gaza, despite “Hamas constantly stealing
it.” He told the judges that “Israel no doubt meets the legal test of
concrete measures aimed specifically … at ensuring the rights of the
Palestinians in Gaza to exist.”

Christopher Staker closed Israel’s legal arguments by charging that South
Africa was trying to force a unilateral ceasefire by Israel and that this
would allow Hamas to be “free to continue attacks, which it has a stated
[intent] to do.” He said that the civilian carnage and destruction in Gaza
cited by South Africa do not inherently constitute genocide and that it is
“not within the court’s power” to order provisional measures directing
Israel to cease all military operations under the Genocide Convention. He
contended that Israel has a legitimate right to engage in military conduct
in Gaza that South Africa is seeking to restrain, and that an ICJ order to
cease all operations would cause “irreparable prejudice” to the rights of
Israel. South Africa, in its argument on Thursday, contended that by
refusing to cease its operations, Israel was ensuring that the pile of
Palestinian corpses would continue to grow alongside the amputations of
limbs without anesthesia and babies dying of treatable illnesses.

Staker took a page from Netanyahu’s well-worn propaganda playbook and
compared the Gaza war to World War II, saying an international court
ordering Israel to cease operations in Gaza would be akin to a court in the
1940s forcing the Allies in World War II to surrender to the Axis powers in
Europe. He said a suspension of military operations would “deprive Israel
of the ability to contend with the security threat against it” and allow
Hamas to commit further atrocities. Such measures by the ICJ, he alleged,
would assist Hamas. He also said the orders requested by South Africa were
too broadly framed and, if enforced by the world court, would incapacitate
Israeli operations in Palestinian territories other than Gaza. He said this
as though Israel is protecting a country club in the West Bank from robbers
and vandals rather than presiding over an illegal apartheid regime where
Palestinians are subjected to conditions not unlike those found in South
Africa decades ago.

Staker also said that South Africa’s request that the court order Israel to
preserve evidence of potential crimes had no basis in fact and that no
proof was offered that Israel was destroying evidence in Gaza. He said such
an order would be an “unprincipled and unnecessary tarnishing of [Israel’s]
reputation.” Staker may want to peruse the list of Palestinian libraries,
archives, cultural sites, monuments, historic churches, and mosques that
Israel has destroyed. Not to mention the academics, poets, storytellers,
and historians its forces have erased from the earth.

Israel’s representative Gilad Noam closed his government’s defense by
claiming that South Africa portrayed Israel as a “lawless state that
regards itself as beyond and above the law. … in which the entire society”
has “become consumed with destroying an entire population.” This was
remarkable in that it represented an accurate characterization of precisely
what South Africa argued in its presentation. Of course, Noam assured the
court that this characterization was “patently false.”

South Africa, Noam said, “defames not only the Israeli leadership but also
[Israeli] society.” Returning to the statements made by Israeli officials
that South Africa’s lawyers said constituted proof of genocidal intent,
Noam claimed that some of these “harsh” statements by Israel’s leaders were
in response to the “destruction of Jews and Israelis.” He said that
Israel’s courts take incitement seriously and are currently investigating
such cases.

Noam accused South Africa of engaging in a “concerted and cynical effort to
pervert the term ‘genocide’ itself.” He asked the judges to reject the
requests to order a halting of Israeli military operations in Gaza and to
dismiss South Africa’s case in full. The president of the court, U.S. Judge
Joan Donoghue, adjourned the hearing, saying the judges would rule as soon
as possible.

During its presentation before the court, Israel made no arguments to
defend its conduct in Gaza that it—and its backers in the Biden
administration for that matter—has not made repeatedly in the media over
the past three months as part of its propaganda campaign to justify the
unjustifiable. Each day that passes, more Palestinians will die at the
hands of U.S. munitions fired by Israeli forces and the already dire
humanitarian situation will deteriorate further. Should the court take
Israel’s side and dismiss South Africa’s claims, Israel will point to that
as evidence of the justness of its cause. If the judges approve South
Africa’s request for an order to halt Israel’s military attacks, the
question will be called on whether Israel and its sponsors in Washington,
D.C., will respect international law. If history offers any insight on that
matter, the future remains grim for the Palestinians of Gaza.
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