Genocide accusation: Israel to fight South African case on key grounds of action and intent in Gaza

The International Court of Justice in The Hague – the UN’s top court – begins two days of hearings on Thursday on a case brought by South Africa accusing Israel of genocide in the Gaza war and seeking an emergency suspension of its military campaign.

Although Israel has rejected South Africa’s genocide claims outright, it decided to appear before the court due to its status as signatory to the UN’s genocide convention. Israel will be represented at The Hague by British barrister Malcolm Shaw and has named former supreme court president Aharon Barak as the ad hoc judge to sit on the court on its behalf.

“We’re optimistic. The required threshold of proof to issue an interim injunction against Israel that would stop the war is high. The Israeli team is making very significant legal preparations, so the South Africans aren’t going to have an easy time of it,” a member of Israel’s defence team told the Yisrael Hayom newspaper.

Two things need to be proved in a genocide allegation: action and intent.

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[ In Gaza, the risk of genocide grows more acute ]

[ South Africa seeks International Court of Justice genocide order against Israel ]

Regarding action, Israel will argue that is fighting a defensive war and will highlight the efforts it has made to avoid civilian casualties, while showing the measures it implemented to allow humanitarian aid to reach Gaza.

Israeli legal experts believe South Africa’s arguments about intent are weak, even though South Africa has cited statements by senior Israeli officials, such as the comment from President Yitzhak Herzog saying: “It’s an entire nation out there that is responsible [for the October 7th massacre]. This rhetoric about civilians not aware, not involved – it’s not true.”

Herzog said on Tuesday that there was “nothing more atrocious and preposterous” than the South African lawsuit.

Israeli human rights lawyer Michael Sfard, a left-wing activist and an expert on international law, argues that Israel will have to provide the ICJ with statements showing no harm was intended for the civilian population. “Israel will have to announce that every Gazan will be able to return to his home immediately after the end of the fighting,” he said.

Both Israel and South Africa will have one judge on the ICJ panel and prime minister Binyamin Netanyahu’s choice of Aharon Barak came as a bombshell to the right-wing in Israel.

Barak (87) was chosen because he is the best-known, most respected Israeli jurist in the world. He is considered one of the leading legal experts globally on issues of international law in the areas of terrorism and security. His many judicial opinions on Israeli security in the face of terrorism in the eyes of international law are studied in law faculties around the world, as well as by governments dealing with terror threats.

[ What does the term ‘genocide’ mean in international law? ]

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He is also a Holocaust survivor, having been smuggled out of the Kovno ghetto in Nazi-occupied Lithuania as a child in a sack of potatoes. That is likely to give his words a lot of symbolic weight.

But Barak is also considered the architect of Israel’s liberal judicial activism, which the current Netanyahu government tried, and failed, for a year to overturn with a radical judicial overhaul that caused bitter divisions in Israel and brought hundreds of thousands onto the streets in weekly protests.

Tally Gotliv, a lawmaker from Netanyahu’s Likud party, was livid. “Netanyahu with this decision has humiliated the right, humiliated his voters. He has no right,” she said.

For many on Israel’s right, Barak was public enemy number one and protests were held outside his home while Netanyahu remained silent. Now, in the middle of a war, he has appointed Barak as Israel’s flak jacket at the ICJ, rejecting accusations of betrayal from the right.

“Despite the numerous disagreements over domestic issues, Barak has acted extensively on behalf of Israel on international issues,” Netanyahu said.

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