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ICJ Day 2: Dismantling Israel’s Defense on Genocide Charge

12 January 2024 | International Solidarity Movement | The Hague, Netherlands  

   One day after a chilling presentation by South Africa’s legal team, constructing a sweeping case against Israel for genocidal intent and acts amounting to genocide of the Palestinian population in Gaza, Israel took its place before the 15 judge panel to try and convince the world that 3 months of mechanized, relentless mass-killing should escape the designation.  Despite a trove of documentary evidence to the latter, Israel contended before the court that it is not committing genocide in Gaza.  

Israel’s legal team in the International Court of Justice. Photo credit: The Independent

     The “right to self-defence” was the main argument that the Israeli legal team, lead by British lawyer Malcolm Shaw KC, brought forward at the second and final day of the preliminary hearings at the International Court of Justice for the case brought by South Africa while denying that Israel is carrying out a genocide in the brutal attack on Gaza. 

     Opening statements in today’s hearing were made by Co-Agent of Israel, Tal Becker who expressed what he termed as Israel’s ‘singularity’ in understanding the birth of the Convention for the Prevention and Punishment of Genocide for which the state is evidenced to be committing.   

     Becker’s claim that Israel is “defending itself in a war it did not start” showed yet again the blatant denial of a 75-year history of land grab, abuses, violation of human rights, illegal occupation, as well as an illegal 16 year blockade on Gaza. “Israel is in a war of defense against Hamas, not against the Palestinian people.”

     The duality of Becker’s statements on what he states to be the “outrageous” nature of the use of the word genocide to explain Israel’s actions in Gaza stood out sorely in juxtaposition to Professor Malcom Shaw who next assumed the floor to dismiss statements of genocidal intent distributed from the highest political offices in Israel, offices which are directing military operations on the ground in Gaza.   

     From Becker’s court address, “We live at a time when words are cheap. In an age of social media and identity politics, the temptation to reach for the most outrageous term, to vilify and demonize, has become for many irresistible. But if there is a place where words should still matter, where truth should still matter, it is surely a court of law.”  Indeed.  The point was made the day prior when South Africa legal team lawyer Tembeka Ngcukaitobi stood before the International Court of Justice presenting testimony related to Israel’s genocidal intent expressed by Israeli authorities of the highest order.  

      Ngcukaitobi platformed the frequent and routine nature of genocidal discourse spoken explicitly and how it translates into real-world violence on the ground by occupation foot soldiers.  Prime Minister Benjamin Netanyahu, President Isaaz Herzog and the Israeli Minister of Defense’s explicit exterminationist rhetoric were highlighted to support the case for intent.  Yet, that incontrovertible evidence was dismissed in court today by Professor Shaw as not legally significant.  “Sometimes statements are made which are nothing more than a part of the recent war-time rhetoric intending to put the blame and shame on the other side.”  Shaw further stated that they were “not to be ascribed an importance…nor of legal significance.”  To counter, using Tal Becker’s words, “if there is a place where words should still matter… it is surely a court of law.”

     Galit Raguan addressed the panel on Israel’s behalf to argue the “facts on the ground.”  Most shocking of all was her claim that “hospitals have not been bombed” when, in fact, Israel struck several hospitals including the Indonesian Hospital, the International Eye Care Centre, the Al-Nasr Children’s Hospital among others.

     With three quarters of Gaza’s hospitals profoundly destroyed to the point of relegation to non-functional status, Raguan stated that while “Hospitals have not been bombed; rather, the IDF sends soldiers to search and dismantle military infrastructure, reducing damage and disruption.”  If the reduction of damage and disruption are what Israel’s military in Gaza were seeking to achieve, they have failed beyond measure.  We have seen successful Israeli military surgical operations unfold which spared civilian life in the very recent past during its breaking of another international law when it assassinated Hamas Deputy Leader Saleh al-Arouri in a residential structure in Beirut, Lebanon.  One imagines if Hamas fighters were positioned in a hospital in Israel, operations would be similarly surgical in nature.  

     In an attempt to justify the atrocities committed, Galit Raguan claimed that “urban warfare will always result in tragic deaths, harm and damage,” saying that these are the “desired outcomes of Hamas.”  While Raguan explained away three months of mass civilian murder, ascribing the most morally sound intentions and actions on occupation forces, her only roadblock to successfully making the case were the countless occupation foot soldiers who have filmed themselves committing atrocities on deceased Palestinian bodies, blowing up entire residential blocks as birthday gifts to their family, looting Palestinian civilian homes, raising the Israeli flag over the wreckage of Mosques, holding skits where they lie in Palestinian children’s beds in homes they have bombed and dancing gleefully amid the wreckage and body parts of Gaza’s people while singing explicit songs about ethnic cleansing. 

     Throughout the hearing, no address was made as to why clearly marked journalists, ICRC medics, UN staff, humanitarian aid workers and Palestinian Civil Defense rescue workers were massacred in targeted killings.  No argument was made to explain the moral navigation involved in documented occupation forces committing of extrajudicial executions or the rounding up, blindfolding, stripping, shackling and abduction of Palestinian civilians, nor of the doctored videos where Palestinian civilians were directed to act on film as though they were surrendering Hamas fighters.  

     Further, Raguan’s assertion several times that Israeli occupation forces had acted to explicitly mitigate civilian harm flies in the face of prolific genocidal rhetoric from the Israeli political and military directors of this onslaught which is being acted out on the ground in real time. While Raguan touted the supposed Israeli humanitarian mobilization to bring critical supplies into Gaza, it would seem counterintuitive for the very same politicians and ministers of the Israeli government to be simultaneously touting their starvation and total siege of the “human animals” of the Gaza Strip.  

     Omri Sender assumed the floor to address the condition of risk of irreparable harm and urgency.  Sender’s opening sentiments were the wholesale blaming of what he recognized as a “grave” humanitarian situation, on Hamas “prosecuting war from under, and within, the civilian population.”  Sender’s statement continued to fly the torch carried by his predecessors speaking in Israel’s defense in that it painted Hamas as an agent of terror that Israel was battling to protect Palestinian civilians from.  A common sentiment expressed publicly among Israeli political and social society is that “there are no innocent civilians in Gaza.”  

     Sender touted its opening of the Kerem Shalom crossing for aid delivery to enter three months, thousands of dropped bombs and tens of thousands of murdered civilians later.  Gaza’s population is now starving.  As Sender’s statement to the court focused on Israel’s direction of aid in recent history to enter through Gaza’s border crossings, the entire problem was missed; the fact that Israel is controlling the land, air and sea borders of another people and has unilateral say over what comes in and what goes out, when it wants to starve the population and when it will open a crossing under conditions of a looming famine to allow a truck to enter for which its entry will be used to exhibit Israel’s kindness to the Palestinians it is mass murdering at the very moment the words were spoken to the court.  

        Christopher Staker was the next speaker for the Israeli defense.  He did so to denounce the context for requested provisions as made by South Africa on the first day of the hearing.  His argument centered around the sentiment that neither South Africa, nor Palestinians, “have a plausible right” to request provisional measures and went point by point through South Africa’s 9 provisional requests in this manner.  

          The final speaker was Co-Agent of Israel, Gilad Noam who concluded Israel’s arguments through requesting the International Court of Justice “(1) Reject the request for the indication of provisional measures submitted by South Africa; and (2) Remove the case from the General List.”  With the final words of their arguments brought to a close, Israel has now requested the judges of the ICJ to refuse the words of every humanitarian agency who has worked on the ground in Gaza, the millions of Gazans who have filmed their own destruction and the tens of millions of horrified people across the world who have watched this massacre unfold for over 90 days, and to instead find Israel not guilty of violating the 1948 Convention for the Prevention and Punishment of Genocide.  

     The final day of the court hearing occurred during another day of the active destruction of Gaza itself as she is reduced to mass rubble fields, indistinguishable from the universities, hospitals, schools, shops, residential blocks, utilities buildings, Mosques, Churches and shelters which once comprised her streets.  With Oxfam noting that the “Israeli military is killing 250 Palestinians per day with many more lives at risk from hunger, disease and cold,” during the course of the two-day hearing on whether Israel is committing genocide in Gaza, 500 Palestinians were massacred.