How South Africa’s genocide case against Israel played out in The Hague

Shortly after 10am local time on 11 January a hush descended over the ornate courtroom at the Peace Palace in The Hague as the judges of the international court of justice entered to hear South Africa’s case alleging genocide by Israel in Gaza.

Outside the court, protesters noisily made their feelings known and more than 3,000km away the bombardment of the Palestinian enclave continued, as the US president of the court, Joan Donoghue, began the formalities, opening the hearing into the war in Gaza.

Once the formalities were dispensed with it was then left to Vusimuzi Madonsela, South Africa’s ambassador to the Netherlands, to open the case, which pitted two countries with painful histories against each other.

The delegations from each side included “some of the lucky ones who managed to get out of Gaza”, and relatives of Israelis taken hostage by Hamas.

The crux of South Africa’s case was that the proof was in the devastation wreaked upon Gaza by Israel in response to the Hamas attacks on 7 October 2023 in which militants killed about 1,200 Israelis, mainly civilians – plus the now parlous state of the Palestinian enclave, and the words of Israel’s leaders.

The South African lawyer Adila Hassim told the court: “Genocides are never declared in advance but this court has the benefit of the past 13 weeks of evidence that shows incontrovertibly a pattern of conduct and related intention that justifies a plausible claim of genocidal acts.”

She cited the death toll in Gaza, then about 23,000 (although it had increased by the time Hassim read it out in court), mostly women and children, as well as the 7,000 people trapped under rubble, presumed dead, the thousands more injured, and 85% of the population being displaced. Then there was the destroyed or damaged infrastructure and ruination of an estimated 355,000 Palestinian homes, the court heard.

The humanitarian crisis bringing starvation and dehydration was well documented by international humanitarian organisations, and was compounded by Israel’s refusal to allow aid into Gaza, the judges heard.

Unlike a definitive ruling on genocide (defined as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group”), which would take years to resolve, the application for provisional measures made by South Africa in the hope the ICJ would order a ceasefire, requires only that some of the alleged acts fall within the genocide convention.

Israel, whose response came the following day, claimed that South Africa had failed to do this. Its legal team claimed it was acting in self-defence, only doing what it had to in order to protect its citizens after the 7 October attacks, and that a ceasefire would leave them at the mercy of Hamas, which was dedicated to Israel’s annihilation.

Tal Becker, the Israeli foreign ministry’s legal adviser, called the ceasefire request “unconscionable” saying: “If there were acts of genocide, they have been perpetrated against Israel.”

Becker said that civilian suffering was “sadly” inevitable in warfare but not proof of genocide. Israel blamed Hamas for civilian deaths, both directly and indirectly. It alleged Hamas’s misfiring rockets, booby traps and mines killed Palestinian civilians and its use of human shields and civilian buildings put them in the firing line. Hamas’s tunnel network was blamed for the collapse of buildings.

Israel denied bombing hospitals and said it had gone to “extraordinary efforts” to provide humanitarian assistance, playing footage to the court of aid vehicles crossing into Gaza, and said it gave advance warnings before bombing areas.

South Africa’s legal team highlighted alleged examples of “genocidal intent”, including the reference by Israel’s prime minister, Benjamin Netanyahu, to the Old Testament story in which the Israeli people of King Saul were commanded to destroy all men, women, children and animals of the Amalekite people.

Other statements from current ministers quoted in court included calling Gazans “human animals”, holding them all responsible for the actions of Hamas, and calls for another Nakba (the 1948 displacement of Palestinians from the newly founded state of Israel), or even for a nuclear bomb to be dropped on the enclave.

Tembeka Ngcukaitobi, another South African lawyer, said Israeli soldiers “proved they understood the prime minister’s message” when they were recorded dancing and singing about there being “no uninvolved” and wiping out “the seed of Amalek”.

In response, Prof Malcolm Shaw, representing Israel, said that Netanyahu’s words about Amalek were “partially and misleadingly quoted” and that the prime minister had said, in the same comment, “the IDF does everything to avoid harming the uninvolved”. He said other comments highlighted by South Africa were “clearly rhetorical”, made in the aftermath of the traumatic 7 October attacks, and in no way reflected “official and binding policy”.

In more prosaic submissions Shaw spent considerable time arguing that the ICJ did not have jurisdiction because of procedural mistakes made by South Africa.

At other times the claims were much more incendiary, echoing Israel’s reaction to the launch of the case, when it accused South Africa of a “blood libel” and of cooperating with Hamas.

While the language in court was more tempered, Becker said: “The delegitimisation of Israel since its very establishment in 1948 in the applicant’s submissions, sounded barely distinguishable from Hamas’s own rejectionist rhetoric.” This came after Madonsela referred to “Israel’s colonisation” of Palestine.

Israel also accused South Africa of “making almost no mention” of the suffering of Israelis and treating the hostages held since the 7 October attacks as an “afterthought”, which Madonsela robustly denied on the steps of the Peace Palace.

Feelings were running high outside the court, where supporters of both sides, allocated separate areas by police, waved Palestinian and Israeli flags. Some pro-Palestinian protesters carried baby dolls stained with red, representing blood, while Israeli supporters had empty chairs for the hostages.

On the first day of proceedings the Israeli contingent broadcast images of the hostages on an LED screen, while on the second day Palestinian supporters showed images of Gaza and a documentary about the boycott, divestment and sanctions movement targeting Israel. As they watched proceedings on the screen they shouted “liar, liar” as Becker spoke.

After the hearing, Germany, which, like the US and UK, backs and arms Israel, said it would make a third-party intervention on behalf of its ally, saying that in view of its history – as perpetrator of the Holocaust against Jews – it “sees itself as particularly committed to the genocide convention”. It called the case against Israel “completely unfounded”.

For his part, Netanyahu pledged “total victory” and said “no one will stop us, not The Hague”, amplifying existing doubts about whether any judgment by the ICJ, which lacks enforcement powers, could bring an end to the bloodshed.

In a highly anticipated ruling on Friday, Donoghue granted the application for provisional measures that ordered Israel to ensure its forces did not commit acts of genocide in Gaza but fell short of requiring a ceasefire.

It meant South Africa and the Palestinians could hail a landmark victory but Netanyahu, while railing against the “outrageous charge of genocide”, could welcome the fact a ceasefire “was rightly rejected”. While hopes were expressed that Israel would comply with the order, it remained uncertain that it would do so.