At The Hague, Israel Mounted A Defense Based In An Alternate Reality

By Jeremy Scahill

Israel’s rebut­tal against charges of geno­cide was as weak in offer­ing doc­u­ment­ed facts as South Africa’s case was powerful.

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 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 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. 

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 of them­selves glee­ful­ly hit­ting the det­o­nate but­tonOpens in a new tab 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 over the decades con­demn­ing the ille­gal­i­ty of Israel’s apartheid régime and its ille­gal occu­pa­tions, not to men­tion its own well-doc­u­ment­ed use of Palestinian chil­dren as civil­ian shieldsOpens in a new tab and the inten­tion­al killing and maim­ingOpens in a new tab 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.”

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.

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, 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 that Israel is block­ing it from get­ting aid to north­ern Gaza, while the World Health Organization saidOpens in a new tab 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 régime 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.