“There is nothing more horrible and absurd.” This is how Israeli President Isaac Herzog described South Africa's accusation against Israel that it is committing genocidal acts in the Gaza Strip. “We will proudly argue that we have the right to self-defense,” Herzog said.
It is in Israel South Africa's genocide case greeted with outrage before the International Court of Justice. The Israeli Foreign Ministry says there is no factual or legal basis for this and that South Africa is “abusing” the court. Government spokesman Elyon Levy called it a “blood libel.”
The indictment also stirs up emotions in Israel. “It is not easy to be accused of a genocide committed by a state that rose from the ashes of the largest genocide in history,” wrote left-wing columnist Gideon Levy in the newspaper Haaretz. Moreover, Levy argues that there was genocide, but that this was not the purpose of the war.
If the case, which could last years, results in a verdict that Israel is guilty of genocidal acts in Gaza, it will seriously damage the country's international reputation and relations. South Africa is also calling for an immediate end to military operations in Gaza. However, such an order from the court would not guarantee that Israel will actually end the war in Gaza. Although its rulings are binding, the court itself cannot enforce compliance.
'It was all about self-defence'
86-year-old British lawyer Malcolm Shaw will argue Israel's case in The Hague. “Israeli defense will focus very strongly on the events of October 7, underlining that they were historic and unprecedented and that everything that followed was self-defense,” said Haggai Matar, an Israeli journalist and director of +972 Magazine, by telephone from Tel Aviv.
According to Matar, Israel will also try to show that the army has actually helped Palestinian civilians by issuing evacuation orders and protecting them from Hamas, which would use them as human shields.
“The Israeli administrative elite that has supported Israeli actions in the Gaza Strip in recent months is clearly shocked by the indictment and concerned about its implications,” said Nimer Sultany, a law researcher at the School of Oriental and African Studies in London. Sultany calls Israel's self-defense argument “irrelevant,” “because even if you act in self-defense you can still commit genocide.”
South Africa's 84-page report includes a large number of statements from, among others, Israeli ministers and army generals who must prove that there is a genocidal intention. The list includes several calls for forced emigration, starvation of the population and the destruction of Gaza.
“Everyone in Israel is now focusing on those statements. There is no attention at all to what Israel is actually doing in the Gaza Strip,” says Matar. “In the court, Israel will simply claim that the statements are unimportant and that the politicians in question do not make the decisions. Liberals in Israel also say: 'those are those right-wing idiots'.”
The question is whether the jury at the International Court of Justice will be convinced that the statements are peripheral, as the list also includes statements from members of the War Cabinet, including Prime Minister Netanyahu and Defense Minister Yoav Gallant, who said that Israel fights against “human animals” in Gaza.
Remarkable appointment
Under the rules of the International Court of Justice, the different parties, South Africa and Israel in this case, may each appoint a judge, expanding the court's permanent jury of fifteen judges. Israel has appointed 87-year-old veteran Aharon Barak. Barak served on the Israeli Supreme Court between 1978 and 2006, including eleven years as president.
Barak's appointment is notable given his criticism of the government's controversial legal reforms over the past year that were recently rejected by the Supreme Court. Barak was targeted by ultra-right politicians in the government who saw him as a representative of the Supreme Court's 'activism' and bias.
The right-wing hostility towards Barak has now partly been put on hold in the hope that Israel can benefit from its international reputation in The Hague. “Barak is internationally recognized as a respected judge and legal expert, especially because of his role as liberal president of the Supreme Court,” says Matar. “Moreover, he is a Holocaust survivor. These two factors, the Israeli government expects, will have a positive effect on the case.”
Sultany also sees that Netanyahu has put aside his personal enmity with Barak to use him as a “shield” against international accusations of genocide. “Unlike Netanyahu and his coalition partners, who are seen as ultra-right and controversial, Barak is not viewed negatively internationally.”
Never declared illegal
Barak is not only criticized by the ultra-right, but also by opponents of the Israeli occupation of the Palestinian territories. They point out that the decisions of the Israeli Supreme Court, with Barak as a key representative, have consistently undermined the rights of Palestinians. He also never declared Israeli settlements in the occupied West Bank illegal. “Barak has always tried to whitewash the occupation and apartheid with legal reasoning,” says Matar.
An important example is the Israeli construction of a wall straight through the occupied West Bank. The International Court of Justice declared the wall illegal under international law in 2004. “The ruling was contradicted by Barak and the Supreme Court,” says Sultany. “The result was the construction of the wall, with a slightly modified route, on confiscated Palestinian land.”
South Africa's indictment also raises concerns in Israel that it will set a precedent for other international cases, for example in the International Criminal Court, which is not recognized by Israel. Barak is seen by many as someone who can protect the country from such things. “Barak is one of the greatest defenders of Israel's security apparatus” writes defense analyst Yoav Limor in the Israeli newspaper Israel Hayom. “He defends his country against his enemies.”
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