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'South Africa argued as if there was no Hamas and everything was Israel's doing'

While international law scholars praise Israeli team's defense at the UN's top court, they predict it will issue provisional measures that may damage Israel's image and inflict political, diplomatic and legal harm.

After two days of hearings at the International Court of Justice in The Hague, Israeli international law experts assessed that the Israel legal team did a good and professional job under the circumstances in rebutting claims of genocide presented by South Africa.


The hearing on Thursday and Friday before the world court was limited to a South African request for an interim order against Israel – known as provisional measures within the ICJ.


Some Israeli experts, with whom Haaretz spoke, expressed expectations that the court would not order a general cease-fire in Gaza as a provisional measure, but might issue orders requiring Israel to protect civilians in the Strip, ensure the provision of humanitarian assistance and to permit professionals to investigate what has been carried out there.


The sources praised the Israeli legal team, saying that the rebuttal Israel presented on Friday in The Hague was distinguished, reflecting their professionalism in Israel's public service.


The sources also noted that this was the same staff that Prime Minister Benjamin Netanyahu's government had done its best to undermine and weaken during the bitter public debate over the government's judicial overhaul plans. Netanyahu's government would have undermined the independence of the country's legal system.


Dr. Tamar Megiddo, an international law expert at the Hebrew University of Jerusalem, said that Israel presented a strong, professional case about the country's right to self-defense following Hamas' October 7 attack on Gaza-border communities. Approximately 1,200 people were killed in the massacre and roughly 250 others were taken hostage into Gaza, about half of whom remain there. In response, Israel launched a major military offensive that was the main subject of the two days of hearings.


At Friday's hearing, Israel also presented a strong case regarding the complex challenges involved in fighting a terrorist organization such as Hamas, which has embedded itself among civilians and civilian infrastructure in urban areas of the Gaza Strip. The Israeli team also did well in demonstrating Israeli efforts to comply with international law and to ease the humanitarian crisis in Gaza, Megiddo said.


"Israel," she said, "also presented a significant argument as to why issuing an order requiring it to stop the fighting would inflict serious and unjustified harm" to Israel's right to defend itself. South Africa, she added, "had not met its burden of proof that [a cease-fire] is necessary."


Amid South African allegations that Israeli government officials had expressed rhetoric encouraging genocide in Gaza, Megiddo raised the issue whether Israeli Attorney General Gali Baharav-Miara has done enough to prevent and investigate such statements, including the deaths of Palestinians in Israeli custody.


Megiddo also asked whether the Israel Defense Forces has done enough to investigate incidents in the fighting in Gaza that raised legal issues, and whether the Israeli Supreme Court has conducted sufficient oversight over the government and the IDF in connection with the war.


For his part, Aeyal Gross, a professor of international law at Tel Aviv University and a Haaretz columnist, said that one of the most important portions of the Israeli rebuttal was presented by the head of the Israeli legal team, British international law professor Malcolm Shaw. He attempted to convince the 17-member judicial panel that problematic statements that had been made by senior Israeli officials about the fate of Gaza in the war were made without authority – and that, contrary to what South Africa claimed, they did not reflect official Israeli policy.


Among other statements, for example, Shaw cited an interview in which Heritage Minister Amichai Eliyahu didn't rule out dropping an atomic bomb on Gaza. Eliyahu is not involved in decision-making regarding the war and his comments were condemned by the Israeli security cabinet, Shaw noted.


But Gross said the Israeli legal team's task in rebutting statements by public officials was not simple in that they included comments by Prime Minister Netanyahu himself, notably his reference to Amalek in the Bible. "Remember what Amalek has done to you," Netanyahu said following the October 7 massacre. According to the Bible, God instructed the people of Israel to wage an eternal war until no trace of Amalek's existence remains.

It was no accident, Gross remarked, that South Africa presented a video in which Israeli soldiers in the field also made reference to Amalek in a song and sang that there are no uninvolved noncombatants in Gaza. To the extent that the video reflects the broader reality on the ground, it is highly concerning, Gross said, particularly against the backdrop of the large number of civilian casualties in Gaza.


But, Gross added: "It isn't evidence of an intention to commit genocide, which would require special intent to harm Palestinians as such and not Hamas. But it should be stressed that in any event, the large number of civilian casualties and statements such as those of the soldiers are relevant to the question of compliance with the laws of war."


That's particularly the case, Gross said, when it comes to distinguishing between civilians and combatants and the responsibility of soldiers not to target civilians, exercising care not to harm civilians and the responsibility to not attack military targets if disproportionate harm would be caused to civilians.


"The failure to comply with these would be a violation of the laws of war that might also rise to the level of war crimes, but war crimes in and of themselves are not within the jurisdiction of the International Court of Justice. They are considered in the framework of the ongoing investigation by the prosecutor of the International Criminal Court," Gross said, referring to a separate international judicial body in The Hague.


The legal arguments of both Israel and South Africa were very professional, Gross said, but he added: "South Africa argued almost as if there was no Hamas and that everything was Israel's doing. Israel sought to place the entire responsibility on Hamas. In the end, there's one question around which the decision at this stage will turn," relating to whether it is plausible, as South Africa is claiming, that it has been Israel's intention to engage in genocide against the Palestinian population of Gaza "or whether Israel was convincing [in court] that it is only interested in attacking Hamas."


"Lawyers from the two sides did their best to prove their arguments. The question is whether the court will accept the Israeli argument or will believe that there is a chance, in light of such a large number of casualties on the Palestinian side, of the damage to infrastructure and buildings and due to the humanitarian situation that there is something to the South African claims," Gross said.


Gross was cautiously prepared to predict that the court wouldn't order a cease-fire as a provisional measure in the case – the full merits of which could take years to litigate – but that it would issue a provisional measure requiring that Gazans be protected, that humanitarian assistance be permitted in and that professionals be allowed to investigate the situation there.


"If that is indeed what happens, Israel will claim that one way or another, it has already been complying with the first two" requirements, but such an interim order would also cause damage to Israel's image and inflict political, diplomatic and legal harm, Gross predicted.

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