Israel maintains that it has no genocidal intent in its military offensive in Gaza and that it would be defenseless if it did not repel the attacks by the Islamist militia Hamas. This is, in essence, the line of argument maintained this Friday by his legal team in the trial he faces in The Hague after South Africa's complaint for inciting genocide in Gaza. The Israeli representation has asked the United Nations International Court of Justice (TIJ), the highest judicial body of the UN, to refrain from issuing precautionary measures to paralyze military operations in the Strip. South Africa had requested this on Thursday with the intention of avoiding a genocide against the Palestinians. Israel has described that accusation as “false and distorted” and has asked the court to withdraw the case. The court decision is expected within several weeks.
Although the South African demand includes a total of nine protection mechanisms against the presence of “acts of a genocidal nature” in Gaza, the most important one it demands is the cessation of the Israeli offensive. The six legal representatives of Israel have rejected that the ICJ can dictate this measure, and have argued for the use of force in legitimate defense against Hamas aggression. As the United Nations Charter protects this right for all countries, South Africa had invoked the Convention on the Prevention and Punishment of the Crime of Genocide (1948) in its request to the judges. The convention explains that force cannot be used until reaching the “crime of crimes,” which requires genocidal intent to be proven. And there, in the lack of that intention expressed by Israel, is where its jurists have delved to ensure that the provisional measures are not justified.
In a courtroom that seemed even more crowded than on Thursday, when South Africa intervened, Tal Becker, legal adviser to the Israeli Foreign Ministry, issued a warning. He has stated that the expression “never again”, so that a genocide is not repeated, is “Israel's greatest moral obligation” in light of the Holocaust. With that argument, he regretted that South Africa appealed to the convention to present the case before the judges. If it progresses, it would become “the aggressor's card,” he has asserted. According to him, “it is Hamas that seeks genocide against Israel” and the lawsuit is distorted because it only mentions “the Israeli assault on Gaza.”
“It does not mention that many of the destroyed civilian buildings contained traps set by Hamas.” The militia has entered the heart of Palestinian society, he continued explaining, “and uses the population as human shields.” Consequently, the step taken by South Africa “does not offer the ICJ a lens, but rather blinds its eyes to the inhumanity of Hamas and its crimes.”
As the South African delegation did on Thursday, Israel has also presented videos and audios this Friday. In his case, the massacre of Israeli civilians perpetrated by Hamas on October 7. Along with this graphic support, defending or rejecting a case before the UN Court requires the parties to argue each of their allegations. Here, by both parties, the acts – or their absence – of a genocidal nature, the intention, the competence of the judges, the right to protect, the urgency and the irreparable damage that may occur, as well as the provisional measures sought have been described. .
“There is no genocidal intent”
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Although the precautionary measures do not require proving that a genocide has occurred – it is enough that it is plausible – the British jurist Malcolm Shaw, who has presented Israel's position, has told the room that the genocide “does not take place in Gaza and There is also no genocidal intention on the part of Israel.” It was a key moment because he has declared that, in any case, it is South Africa that could be violating the convention “with its support for Hamas, an organization considered terrorist, among others, by the United States, the EU and the United Kingdom.”
With the toga and wig that symbolize authority and respect in the British tradition, Shaw's presence has been somewhat lackluster because he has made a mess of his roles. “Someone has mixed them up; “This looks like a deck of cards”, he muttered to an open microphone. Once order was restored, he alleged that the State of Israel “does have a clear intention to comply with humanitarian laws and is only focused on Hamas.” He has also stressed that South Africa “did not give Israel enough time to establish a bilateral relationship that would allow for a response to this dispute.” At this point, several of the judges have taken notes. The South African team said Thursday that nearly 24,000 people have died in the Strip since the start of the offensive, according to local health authorities.
Towards the end of the interventions, Gilad Noam, Israeli Deputy Attorney General for International Affairs, acknowledged that there is an armed conflict in Gaza, “but meeting South Africa's request would weaken the very essence of the idea of genocide.” He has reinforced his words by emphasizing that ordering provisional measures “would only give wings to terrorist groups that do not respect human rights.” “Hamas would continue to attack Israeli civilians.” For Noam, even though the militia “uses Palestinian civilians as human shields, steals humanitarian aid and holds Israeli hostages, we remain committed to international law.”
Israel has described South Africa's demand as a “cynical attempt to pervert the very meaning of the genocide”, and Galit Raguan, Israeli Minister of Justice, has said in The Hague that the South African initiative is “distorted”, given the situation in the Strip. “There are hundreds of thousands of tunnels [utilizados por Hamás] and in every hospital registered by Israel, evidence of its presence has been found.”
Once the two days of hearings have concluded, the ruling of the TIJ judges is expected within several weeks. The most difficult point is regarding the cessation of the offensive in Gaza, given that Israel emphasizes that it is exercising its legitimate defense. “The court does not have to definitively determine the question of self-defense, and could also consider the situation from a broader humanitarian perspective, given the situation in the Strip,” says Asier Garrido Muñoz, an expert in Public International Law, on the phone. and European Law, and former legal advisor to the court. In any case, it seems to him that even seen in this way, indicating that the military operation be paralyzed would not be without controversy. “The UN Security Council is the appropriate body to declare a ceasefire and it has not done so.”
These types of ICJ orders are mandatory, but it is not clear that Israel would comply if it considers that it affects its actions in Gaza. What does not diminish is the value of the court ruling in a case about genocide that puts Israel in front of the mirror of its actions.
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