This is how Israel struck back against its haters at The Hague
The defense presented numerous and extensive actions undertaken by Israel to improve the humanitarian situation in Gaza, but wisely put this in its correct context, stating that the current situation is the clear outcome of Hamas' actions and thus it is the terrorist organization that has condemned the Gaza Strip residents to this plight.
Netael Bandel
Israel Hayom
Jan 16, 2-24
The International Court of Justice (ICJ) with President Donoghue and other judges before the hearing in the genocide suit brought by South Africa against Israel, on January 11, 2024
A patriotic Israeli journalist would find it extremely challenging to refer to the hearings in The Hague with the degree of objectivity required in the legal profession, and that is probably not such a bad thing. Having said that; however, we can sum up the situation as follows: after a good and very worrying opening by the South African prosecution, some sense of a comeback was felt following the highly impressive appearance of the Israeli defense team. To the extent that this was in general a legal hearing, rather than a diplomatic session under the guise of a legal proceeding, then the team managed to touch on the correct points and even launched a counter-offensive against South Africa itself.
Notwithstanding; however, the assumption is that the court will respond to the prosecution's motion to issue provisional measures (the international law equivalent of an interim injunction) – though these might well be 'toned-down' provisional measures that will not put an end to the fighting but might well limit it.
Israel's statement of defense left no stone unturned and refined the moral and legal mandate that forms the basis of Israel's various military actions in the Gaza Strip. As far as the South African claims regarding the various comments made by senior Israelis are concerned, the defense team explained that most of these individuals are not members of any relevant decision-making forums. What is more, those same decision-making forums, including the prime minister himself, outrightly condemned such remarks. Other statements made, such as those of the Minister of Defense, for example, can only be interpreted as having been made in relation to the destruction of the Hamas terrorist organization and all its individual terrorists, and clearly not the civilian population in Gaza.
The defense presented numerous and extensive actions undertaken by Israel to improve the humanitarian situation in Gaza, but wisely put this in its correct context, stating that the current situation is the clear outcome of Hamas' actions and thus it is the terrorist organization that has condemned the Gaza Strip residents to this plight. Israel's Supreme Court judge, Justice Noam Solberg, aptly defined this in one of the court rulings issued in relation to holding the bodies of dead terrorists in exchange for the return of the hostages from Gaza, when he stated that such actions are "no more than the rotten fruit of murderous terrorism, which is the result of the actions of the cruel enemy, and we have no choice but to do so." In other words: tough and painful actions must also be interpreted as good and necessary. Professor Malcolm Shaw KC, hit the nail on the head when he said that even should any violations of international law be found there is absolutely no factual basis for the collection of accusations to establish grounds for even the suspicion of genocide. There was clearly no such intention of doing so.
In addition to this, the defense team invested a concerted effort in rejecting the actual facts presented by the prosecution. Thus, for example, South Africa alleged that the residents of the northern Gaza Strip received a mere 24-hour warning to leave their homes prior to Israel attacking the area. To refute this allegation, Dr. Galit Raguan, who displayed outstanding professional skill and quality as a lawyer throughout the hearing, demonstrated that Israel had actually warned the Gaza residents three weeks prior to the Israeli offensive, so much so, in fact, that in practice the IDF revealed to Hamas the focus of its initial offensive efforts. This is merely one example of the many the Israeli team presented.
The real face of South Africa
Professor Shaw underscored an important fact, which truth be told, we in Israel tend to forget. "South Africa spoke about occupation and apartheid against the Palestinians from a perspective of 75 years, but why stop there? Why not go back to 1922 when the League of Nations declared its recognition of the "historical connection of the Jewish people with Palestine and the grounds for reconstituting their national home in that country"? In fact, why not 3,200 years earlier when the tribes of Israel entered the Land?" In other words, the Tanakh or Bible continues to be the title deed.
The Deputy Attorney General for International Law, Dr. Gilad Noam, who summed up the arguments for the defense, underscored an important point: not only is there no basis for a decision establishing suspicion of genocide, but in practical terms, it actually undermines the UN Convention on the Prevention and Punishment of the Crime of Genocide. In essence, it turns the convention into a certificate of immunity for terrorist organizations who themselves carry out proven acts of genocide, as we ourselves witnessed first-hand on October 7. That would be a moral injustice on an international scale. South Africa, whose government is composed of some of the original pioneers who toppled the apartheid regime there, has decided to embark on a crusade against what it considers to be similar regimes all around the world. However, somewhere on the way it has sharply veered off course, shaking hands with the Islamist Nazis from Hamas, and electing to attack the very people who, not so long ago in the course of history, was itself saved from annihilation, a people that Iran, Hezbollah, Hamas and other 'like-minded' entities would love to see sent back to the crematoria. Crematorium here is being used in the literal sense of the word, just as Hamas did in Kibbutz Be'eri, for example.
As hinted above, we cannot say for certain that the hearing in The Hague is indeed a legal proceeding. The assumption among many lawyers and also among the members of the Israeli team is that the ICJ (International Court of Justice) will grant the prosecution's motion and indeed order provisional measures. Having said that, and perhaps more importantly too, the level of the current hearing has the ability to fend off provisional measures that might be sufficient to put an end to the combat in Gaza, an option that Israel clearly cannot accept, and thus make do with much more modest measures. For example, a measure instructing Israel to launch an investigation into various statements, an order instructing that the Gaza Strip be fully opened for the introduction of humanitarian equipment, an order limiting certain modes of combat, or a general declarative order instructing Israel to act in accordance with international law. Israel should be able to live with the majority of such eventualities.
A strategic threat
The inherent danger in putting a stop to the war has returned international law to the limelight. International law is not merely the flowery rhetoric of global left-wing activists, but it really can pose a genuine strategic threat to Israel. Israel does not act alone and is a member of the community of nations, as well as the leading global states that were quick to send naval destroyers to the region immediately following the outbreak of war – and only this week those same nations struck at the Houthis in Yemen in response to their continued attacks on Israeli commercial shipping. International law is something that needs to be discussed, it is not binding, and it is even appropriate to level criticism at the legal system in relation to claims calling for limiting military action; nonetheless, from this week it has become apparent that all this has entered into a much more balanced context. This week too, we have sobered up.
When coming to defend the state we can don a helmet and a combat vest, but we can also wear a suit and tie and use legal arguments for our ammunition. No superlative would be an exaggeration when attempting to describe the dramatic importance of the hearing in The Hague. The intensity of this fateful hearing was glaringly apparent on the face of Gilad Noam, which remained devoid of emotion with only his eyes blinking from time to time. Dr. Noam, an individual whom most Israelis have probably not heard of to date, together with Dr. Raguan, Dr. Tal Becker, and the other members of the Israeli legal team, are the legal equivalent of the elite IDF 'Sayeret Matkal' unit, sent to the ICJ in order to save us. We can of course always find one or two additional points for improvement, such as placing greater emphasis on the tragedy of the Israeli hostages, but these are far from being of vital importance. A journalist does not usually write thanks to the subjects of his criticism, but an Israeli patriot cannot refrain from doing so: thank you!
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