By Lee-Yandra Paulsen
The International Court of Justice (ICJ) commenced hearings on Thursday with the introduction of ad hoc judges from South Africa and Israel, Dikgang Moseneke and Aharon Barak. The case, brought forth by South Africa, alleges that Israel’s response to Operation Al Aqsa Flood by resistance group Hamas on 07 October 2023 constitutes genocide against the Palestinian people.
The hearing began with Judge Joan Donoghue outlining South Africa’s request for provisional measures to suspend Israel’s military operations in Gaza. Ambassador Vusi Madonsela summarized South Africa’s application, emphasizing the legal basis for potential ICJ action.
South African Justice Minister
Justice Minister Ronald Lamola condemned Hamas hostage-taking but stressed that it cannot justify violating the Genocide Convention.
Lamola delivered the opening remarks at the International Court of Justice, today asserting that the violence and destruction in Gaza did not originate on October 7, 2023.
Lamola unequivocally condemned Hamas for the taking of hostages. He emphasized that, according to South Africa, no armed attack on a state’s territory, even if it involves atrocity crimes, can justify the violation of the Genocide Convention.
Lamola referenced a quote attributed to the late civil rights activist Martin Luther King, stating that the arc of history bends towards justice.
Overview of the risk of genocidal acts and the perpetual vulnerability to acts of genocide.
Advocate Adila Hassim presented evidence of genocidal acts, including mass killings, forced evacuations, and deliberate starvation in Gaza. Hassim outlined Gaza’s history, presenting a map highlighting Israel’s imposed restrictions. She asserted the court need not decide on genocide but must recognize breaches of the Genocide Convention.
Hassim identified Israel’s first genocidal act as the mass killings in Gaza, emphasizing that 70% of 23,000 casualties were women and children. Noting unsafe conditions in Gaza, she highlighted killings during escapes, requiring mass graves.
Hassim deemed the undeniable suffering of Palestinians, branding Israel’s forced evacuations as genocidal and causing permanent displacement. Citing 355,000 damaged homes, she argued a history of mass forced displacement by Israel. Hassim emphasized deliberate attempts to starve Gaza, urging court intervention for relief.
Israel’s alleged genocidal intent
Advocate Tembeka Ngcukaitobi spoke at the International Court of Justice earlier today. He alleged that Israel displayed genocidal intent towards Palestinians in Gaza. Ngcukaitobi cited Israeli leaders’ statements, including Prime Minister Benjamin Netanyahu invoking the Bible, Defense Minister Yoav Gallant imposing a complete siege on Gaza, and President Isaac Herzog declaring an entire nation responsible for the October 7th, 2023, attack on Israel.
Ngcukaitobi highlighted that the Israeli leaders explicitly called for destruction, with Minister of National Security Itamar Ben-Gvir stating Hamas supporters should be destroyed. He emphasized that the destruction in Gaza and the targeting of civilians revealed a put-into-practice genocidal intent.
Ngcukaitobi rejected the notion that Israeli officials did not mean what they said and asserted Israel’s awareness of its actions.
Prima facie jurisdiction
Professor John Dugard addressed the International Court of Justice earlier today. He focused on jurisdiction. He acknowledged the shared suffering of South Africa and Palestine.
Dugard informed the court that South Africa condemned Hamas attacks and Israel’s subsequent actions in an official note. He asserted that Israel persisted in genocidal actions against Palestinians in Gaza.
Rights of Palestinians
Advocate Max du Plessis focused on the rights of Palestinians, drawing from the International Court of Justice’s (ICJ) Gambia case. He argued that Palestinians in Gaza are vital to the national, racial, and ethnic Palestinian group, and have a fundamental right to exist. Du Plessis highlighted South Africa’s case in the ICJ, emphasizing a legal foundation over graphic evidence.
He stated that South Africa’s obligation is driven by protecting Palestinians in Gaza from genocide, in line with the Genocide Convention. Du Plessis stressed South Africa’s broader duty to prevent genocide, extending beyond Palestinians to all state parties under the Genocide Convention.
Du Plessis contended that the ICJ’s denial of provisional measures to protect Palestinian rights would constitute differential treatment, deeming them less worthy of protection. He emphasized that such a decision would entail the ICJ overlooking the alleged breach of human rights central to the Genocide Convention.
The argument of urgency and potential irreparable harm
Irish lawyer Ms. Blinne Ní Ghrálaigh, KC, serving on the South African legal team, echoed Unicef’s declaration that the Gaza conflict is a “war on children.” Describing the urgency, she cited over 200 daily casualties, with ten Palestinian children facing amputations daily.
Ghrálaigh highlighted the toll on healthcare professionals and the forced relocation of Gazans due to Israel’s blockade. She emphasized the dire humanitarian crisis, including disturbing evidence of medical procedures without anesthesia.
Ghrálaigh asserted that Israel denies responsibility for the crisis, limiting aid access. She urged the ICJ to suspend Israel’s war to prevent irreparable harm to Palestinians, noting the global responsibility to protect all equally.
Professor Vaughan Lowe contended that Hamas, not being a state, couldn’t be a party to the Genocide Convention. He argued against South Africa seeking an ICJ order against Hamas, highlighting the importance of the case and Israel’s likely response to any court-ordered ceasefire.
The hearing of Israel’s arguments before the ICJ is scheduled for tomorrow.
Photo: Ministry of justice and constitutional development