A patriotic Israeli journalist would find it extremely challenging to refer to the case submitted by South Africa against Israel at the International Court of Justice (ICJ) 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 advocates, some sense of a comeback was felt following the highly impressive appearance of the Israeli defense team.
To the extent that this was a legal hearing rather than a diplomatic session under the guise of a legal proceeding, the team managed to touch on the correct points and even launched a counter-offensive against South Africa itself.
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” measures that will not put an end to the fighting in Gaza 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 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’s actions and thus it is the terrorist organization that has condemned the Gaza Strip residents to this plight.
The rotten fruit of terrorism
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 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 intention of committing genocide.
In addition to this, the defense team invested a concerted effort in rejecting the 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 throughout the hearing, demonstrated that Israel had warned the Gaza residents three weeks prior to the Israeli offensive, so much so, 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.
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, such a decision would undermine the U.N. Convention on the Prevention and Punishment of the Crime of Genocide. In essence, it would turn the convention into a certificate of immunity for terrorist organizations that themselves carry out proven acts of genocide, as we witnessed first-hand on Oct. 7. That would be a moral injustice on an international scale.
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 will grant the prosecution’s motion and indeed order provisional measures.
Having said that, the current hearing can 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, it can pose a genuine strategic threat to Israel.
Israel does not act alone and is a member of the community of nations, which includes the leading global states that were quick to send warships to the region immediately following the outbreak of war. Last week those same nations struck at the Houthis in Yemen in response to their continued attacks on international (including Israeli) commercial shipping.
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. Noam, an individual whom most Israelis have probably not heard of, together with Raguan, Dr. Tal Becker and the other members of the Israeli legal team, are the legal equivalent of elite IDF units, sent to the ICJ to save us.
We can of course always find one or two 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!
Originally published by Israel Hayom.