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<a class="gmail-domain gmail-reader-domain" href="https://theintercept.com/2024/01/12/icj-israel-genocide/">theintercept.com</a>
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<h1 class="gmail-reader-title">At The Hague, Israel Mounted a Defense Based in an Alternate Reality</h1>
<div class="gmail-credits gmail-reader-credits">Jeremy Scahill</div>January 12, 2024</div><div class="gmail-header gmail-reader-header gmail-reader-show-element"><span><br></span></div><div class="gmail-header gmail-reader-header gmail-reader-show-element"><span>A team of</span> Israeli lawyers and officials presented their defense at The Hague on Friday in the second day of the genocide case <a href="https://theintercept.com/2024/01/11/israel-genocide-hague-south-africa/">brought before the International Court of Justice</a>
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.</div><div class="gmail-content"><div class="gmail-moz-reader-content gmail-reader-show-element"><div id="gmail-readability-page-1" class="gmail-page"><div>
<p>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.” </p>
<p>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.</p>
<p>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. </p>
<p>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.”</p>
<p>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.”</p>
<p>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 <a href="https://www.nytimes.com/2023/12/10/world/middleeast/israel-qatar-money-prop-up-hamas.html" rel="noreferrer" target="_blank">long advocated<span>Opens in a new tab</span></a>
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. </p>
<p>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 <a href="https://theintercept.com/2023/11/21/al-shifa-hospital-hamas-israel/">under al-Shifa Hospital</a>. </p>
<blockquote>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.</blockquote>
<p>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 <a href="https://www.pbs.org/newshour/world/videos-of-israeli-soldiers-acting-maliciously-emerge-amid-international-outcry-against-tactics-in-gaza" rel="noreferrer" target="_blank">posted videos<span>Opens in a new tab</span></a> of themselves <a href="https://www.tiktok.com/@middleeasteye/video/7305511498158181664" rel="noreferrer" target="_blank">gleefully hitting the detonate button<span>Opens in a new tab</span></a>
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. </p>
<p>“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 <a href="https://www.un.org/unispal/document-category/resolution/" rel="noreferrer" target="_blank">scores of U.N. resolutions<span>Opens in a new tab</span></a>
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 <a href="https://www.btselem.org/topic/human_shields" rel="noreferrer" target="_blank">civilian shields<span>Opens in a new tab</span></a> and the intentional <a href="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" rel="noreferrer" target="_blank">killing and maiming<span>Opens in a new tab</span></a> of nonviolent protesters. </p>
<p>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.”</p>
<p>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.</p>
<p>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.” </p>
<p><span>Shaw spent much</span> 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
<a href="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." rel="noreferrer" target="_blank">called for<span>Opens in a new tab</span></a> the International Criminal Court to issue a warrant for Netanyahu’s arrest. Israel responded by withdrawing its ambassador.</p>
<p>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. </p>
<p>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.”</p>
<p>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. </p>
<p>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. </p>
<p><span>Galit Rajuan, another</span> 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. </p>
<img width="391" height="276" src="https://theintercept.com/wp-content/uploads/2024/01/GettyImages-1927388591.jpg" alt="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)" class="gmail-moz-reader-block-img" style="margin-right: 25px;">
<p class="gmail-caption">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.</p>
Photo: Michel Porro/Getty Images
<p>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.”</p>
<p>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.</p>
<p>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. </p>
<p><a href="https://www.reuters.com/world/middle-east/us-says-israel-not-doing-enough-allow-fuel-aid-into-gaza-2023-12-05/" rel="noreferrer" target="_blank">For months<span>Opens in a new tab</span></a>,
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, <a href="https://www.reuters.com/world/un-deplores-israels-systematic-refusal-grant-access-north-gaza-2024-01-12/" rel="noreferrer" target="_blank">U.N. officials said<span>Opens in a new tab</span></a> that Israel is blocking it from getting aid to northern Gaza, while <a href="https://www.aljazeera.com/news/2024/1/10/who-facing-near-insurmountable-challenges-in-gaza-aid-delivery" rel="noreferrer" target="_blank">the World Health Organization said<span>Opens in a new tab</span></a>
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.”</p>
<p><span>Christopher Staker closed</span> 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. </p>
<p>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.</p>
<p>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.</p>
<p>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.” </p>
<p>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. </p>
<p>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.</p>
<p>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.</p>
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