SOUTH AFRICA v ISRAEL ORAL ARGUMENTS
By Breshna Rani
Following up from our previous post covering the first round of oral hearings by South Africa at the International Court of Justice in it’s case against Israel, requesting for provisional measures to stop the genocide in Palestine, GICJ brings you a close overview of the public hearings taken place over a period of two days.
First looking at the nature of South Africa’s arguments, it employed powerful arguments and asked the court to look at the present situation in the context of the last 75 years of atrocities committed by Israel in Gaza.
Ms Adila Hassim provided an opening review of the genocidal conduct of Israel. She reminded the bench at the ICJ of the threshold adopted in the case of Gambia v Mynmmar (Provisional Measures), that at the provisional measures stage it is not have to be conclusively established that Israel’s actions are capable of being genocide, but it is merely only necessary to establish that ‘at least some of the facts alleged are capable of falling under the genocide convention’. It was not only crucial to lay out the standard of proof, the threshold that South Africa must satisfy in order for the ICJ to grant provisional measures, it was an articulate submission that helped the audience and the judges to understand the standard at which they must perceive the facts put before them by South Africa. Ms Hassim ended her submissions emphasising that ‘nothing will stop this suffering except for an order from the court’. While an order from the court will be symbolic and might prompt Israel to regulate its military operations, Israel does not have a stark history of compliance and it is yet for the world to see if the highest court in the world will push Israel to stop its warfare against innocents.
Mr Tembeka Ngcukaitob addressed the court on Israel’s genocidal intent, another requirement to invoke provisional measures by the ICJ. Mr Ngcukaitob’ submissions stood out because of its focus on evidence, he referred to very specific statements from government officers and those with positions of high responsibility in Israeli forces. Something that stuck was a video of Israeli soldiers dancing and chanting slogans, one of which translates to ‘there are no uninvolved civilians’. This was a very important reference as it illustrated Israel's lack of acknowledgement that Palestinian’s are innocent and lack of belief that there are people in Gaza without an association to Hamas.
Blinne Ní Ghrálaigh KC addressed the court on the urgency of the matter in a very impactful manner. She drew the court’s attention to what could happen if Israel’s military operations are not put on a halt. Of the many facts she stated that ‘Each day at current rates an average of 3000 palestinian homes will be destroyed or damaged. Each day ambulances and medics will continue to be attacked and killed. Entire multi-generational families will be obliterated, leaving behind many ‘wounded children with no surviving families’ (WCNSF). Since these proceedings were initiated, an estimated over 1000 Palestinians have been killed in Gaza and over 2000 severely injured. Over 60% of schools, all universities, countless teachers and academics, leading Palestinian scholars have been killed obliterating the future of Gaza’. Though the ICJ is not bound by it’s decisions in previous proceedings, Ms Ní Ghrálaigh KC persuasively made reference to Bosnia v Serbia, Gambia v Mynmmar and Ukraine v Russia and ICJ’s positive response to the provisional measures hearing. This attempt to illustrate that what is happening in Gaza is much more serious and destructive than any of these cases raises hope, hope that the ICJ will not ignore the plight of Palestinians. Her ending remarks, ‘here is no safe space in Gaza and the world should be ashamed’ were accompanied by two photographs. The first photograph was from a white board from a hospital in Gaza Leaving a message ‘we did what we could, remember us’ by the doctors. The second photograph was of the same white board, torn and destructed on the floor with rumbles, destroying the message.
Day 1 of the hearings was persuasive and impactful with South Africa leading its case with clarity on its legal obligations and the rights of the people of Gaza. On the anticipated Day 2, Israel started with very clear submissions that if there is any genocide, it is against the people of Israel by Hamas. South Africa previously asked the court to look at the history of 75 years and the harm people in Gaza have undergone, Professor Malcolm Shaw KC strongly argued that if South Africa is to put forward a long history before the court, it should surpass 75 years and look at the Balfour Declaration, the formation of the League of Nations and other historic events. He stated ‘The immediate and proximate context of Genocide lies in the events of 7 October 2023’.
One of the prime distinctions in Israel’s approach to the hearing’s on provisional measures to South Africa’s was the unapologetic use of pictorial evidence, in the form of pictures of victims, videos and detailed account of the experiences of victims in Israel by Hamas. The victims were identified by their names during the proceedings, the story telling method was not only a persuasive way to illustrate how many lives were impacted but added a personal element to it. Whereas South Africa heavily used facts, figures and numbers, this was done in a holistic manner orally rather than the use of frequent evidence on screen.
In addressing intent, Professor Malcolm Shaw KC stated ‘any careful review of an official and binding policy decision made by the relevant authorities of Israel since the outbreak of the war lack any genocidal intent, they are indicative of the consistent relentless commitment of Israeli relevant authorities to mitigate civilian harm’.
Israel used a statement of Vaughan Lowe KC, a member of South Africa’s legal team, stating ‘source of the act from a state or not state actor is irrelevant to the existence of the right to defend, force may be used to avert a threat because no one is obliged by law to suffer passively the delivery of an attack’. Notwithstanding that the people of Gaza are not the perpetrators of acts against Israel, nor should they bear its consequences. The use of force against them is undeniably inhuman.
While Israel not only blames Hamas for the incidents in Israel and Gaza, it also put South Africa under the frame and asserted South Africa’s support for Hamas. In the absence of judicial intervention, each party made statements that were not critically scrutinised by the judges to enable greater clarity, GICJ looks forward to the court’s decision on the provisional measures and what if any hope it brings to the resolution of this conflict, affecting innumerable innocent lives.
