It would be better if I were wrong. However, my take, having listened to the Israel presentation at the International Court of Justice hearing on South Africa’s genocide filing, is the court will not approve South Africa’s “request for the indication of provisional measures”. Remember, this is not a final ruling on the allegation that Israel has been engaging in genocide. This is an expedited initial ruling, analogous to a preliminary injunction in the US. Here, the standard is that the plaintiffs presented a credible-enough factual and legal case regarding conduct that if not halted, could result in serious harm. Mind you, this not being an Anglosphere court, the procedure and specific standards are different. In the normal course of events, the underlying case still proceeds on its normal (leisurely) timetable, with the alleged perps still perping until a final ruling.
Nevertheless the distressing thing is such a ruling against South Africa’s “request for the indication of provisional measures” would be ballyhooed by Israel and its backers as the court validating Israel’s version of events, that Hamas is a bunch of monsters and everything Israel did was warranted as self defense. If Israel wins this round by successfully punching holes in the South Africa filing, particularly on procedure, don’t expect to see a lot of fastidious reporting.
If you managed to catch the start of Israel’s oral arguments, it was infuriating if you have been following the debunkings of Israel’s charge of Hamas engaging in wanton savagery during its October 7 raid. Expect Aaron Mate and Max Blumenthal having a field day shredding these recycled and largely debunked claims.
The first Israel presenter also reinforced the trope of Hamas being in the business of committing genocide, as in conflating an end the state of Israel as tantamount to wiping out the Jewish people. Later presenters tried to depict most of the harm done to Gazans as Hamas’ doing, via misfiring rockets landing in Gaza, booby-trapped buildings killing civilians, and buildings collapsing due to the tunnels underneath them. But that was secondary to the torture-porn level allegations.
Not even 30 minutes in, and I missed the first 10 minutes pic.twitter.com/NcWTsKJqDr
— Mohammed El-Kurd (@m7mdkurd) January 12, 2024
More from the overheated opening presentation:
🧵Here is my live thread of Israel’s lawyers presenting their defense at the genocide hearing at the ICJ in the Hague this morning:https://t.co/iK1V899d6k
— jeremy scahill (@jeremyscahill) January 12, 2024
Now if I were a judge, this sort of thing would prejudice me against Israel’s cases, since how horrible Hamas was or wasn’t isn’t germane to the genocide allegations. It’s a war crime to engage in collective punishment, even before getting to conduct that colorably rises to the level of genocide. So this is Israel shamelessly pandering to its domestic audience, supporters overseas, and the (pervasive) low-attention members of the media.
However, as the presentation went on, the Israel side landed some real blows. Since we will have ample commentary, and hopefully a transcript soon, I will not go overboard since we’ll be getting commentary soon, hopefully from experts, as well as better documentation.
Israel argued that South Africa ran afoul of what it depicted as a fundamental procedural requirement. The Israel team pointed out that there had to be a dispute before any filing is made with the court. A dispute means one party has told the other it has a problem with what it has been up to, and the other party responds (or at least is allowed enough time to respond). Israel discussed the finer points of this idea, as to when public statement in forums like the UN might do, and contended nothing South Africa has said resembled saying Israel was engaging in genocide and needed to cut it out. Israel charged South Africa as lodging not as dispute but a “unispute”
Even worse, Israel asserted that South Africa realized it had a problem with filing via not having communicated with Israel about its genocide charge and given Israel an opportunity to respond and tried to pretty up the document trail. Without tracking down the precise details, the gist is that South Africa had some sort of dog ate my homework excuse that it sent a missive to Israel, but on a day when the Israel offices were not open, and so then resent after the court filing, on December 29. Israel said it even offered to meet with South Africa representatives after the Thursday January 11 hearing and was rebuffed.
Not having objected to Israel’s genocidal conduct and allowing Israel to reply (cringemakingly, as one Israel attorney put it, “to assuage their concerns”) sounds as if in and of itself it may be fatal to the South Africa case. Israel kept saying it was a prima facie condition. In the US law context, I have heard that applied only to evidence, not procedure Again, if I am interpreting this standard correctly, it sounds as if it would be a threshold requirement in our lingo, equivalent to South Africa lacking standing to file the action due to its failure to go through the stipulated preliminaries. To put it more simply, South Africa allegedly can’t skip this step.
If my understanding is correct, the South Africa filing can (and actually should) be dismissed on this basis alone. South Africa could presumably refile after it heard all of Israel’s, erm, assuaging of its concerns. But that would create delay and seriously dent South Africa’s credibility.
In addition, Israel objected to the “genocidal intent” claims. And remember, South Africa has to establish that there is evidence not just of genocidal acts but also genocidal intent.
Israel objected to the fact that South Africa had relied on the statements of two officials, neither of whom were members of the two bodies that were prosecuting the campaign in Gaza, the War Cabinet and the National Security Committee. The Israel lawyers read some of the policies adopted by these committees, such as pious statements about minimizing harm to civilians, attacking only military targets, which were selected from a dossier submitted to the court. The presenter then ‘fessed up to the “Amalek” remark by Prime Minister Netanyahu, which translates into a “salt the earth” level of destruction of the opponent, down even to slaughtering their animals, and asserted it was taken out of context. He read out a statement and claimed it referred only to militant forces. It didn’t seem so clear to me but I would need to see the text.
Israel listed other acts it depicted as inconsistent with genocidal intent, such as repairing a water main, setting up four field hospitals and 2 floating hospitals in Gaza, providing ambulances and incubators. Israel lawyers also said Hamas had been using ambulances, that in every hospital the IDF had taken, they’d faund evidence of Hamas military use. They also claimed more bakeries were opening, that the amount of fuel entering Gaza ahd doubled since early December and the amount of cooking gas entering was 90 tons a day. Hamas was depicted as stealing a lot of the aid as well as using the population as human shields and in particular firing rockets from schools and apartment blocks. However I didn’t hear any explanations of why Israel had to kill journalists and UN staffers.
Israel also objected to the idea that the evacuations had been inimical to human life, and instead depicted them as intended to protect the population. One presenter banged on about how many leaflets had been air dropped and calls made. Israel also tried to claim with a straight face that there was no need to order the preservation of evidence, there was plenty of evidence….after it killed every independent journalist it could and allows only friendlies like CNN in and then on a very short leash.
Israel further argued that on January 8, it had announced a plan to have Palestinians return to north Gaza, and was transitioning to a lower intensity campaign with fewer ground troops.
The last long presentation walked through the provisional measures propsed by South Africa and raised objections to each one. I doubt the South Africa list amounts to more than a proposal from which the court would hopefully work. However, Israel objected to ones that would require it to halt military action, contending there was (and could not be) any similar requirement for Hamas (which is not a member of the ICJ), and argued that some could even result in checks of convoy trucks being depicted as a breach (given how Israel has abused that power, you can see why some might object to Israel continuing the searches). Israel also objected to the use of the word “desist” since that presumed guilt and was prejudicial, but that seems not hard to remedy.
I have skipped over more details of the hearing but the tidbits above hopefully give you a good sense of the Israel case and the areas where the South Africa case may be vulnerable. I hope lawyers with experience in this area of law weigh in.
Some may argue that South Africa has already won by preparing and then presenting its very detailed bill of particulars on Israel’s horrific conduct. We’ll see soon enough how loud the reverberations are.