Israel slams SA’s ‘libellous’ ICJ application
Publish date: 20 May 2024
Issue Number: 1077
Diary: IBA Legalbrief Africa
Category: International
Israel has reacted angrily to SA's latest application to the International Court of Justice (ICJ), denouncing it as libellous, offensive and a cynical abuse of legal process. Legalbrief reports that SA on Thursday used its platform at The Hague to ask the court to urgently order Israel to end its assault on Rafah, halt its military campaign across Gaza, and allow international investigators and journalists into the territory. Its lawyers expanded on a written request for judges to issue an emergency order to stop the offensive into Rafah, Gaza’s southernmost city. SA filed an urgent application to the ICJ earlier this month after the latest offensive into Rafah, which SA described as the ‘last refuge’ for all Palestinian people. In his opening address, SA’s ambassador to the Netherlands, Vusimuzi Madonsela, told the court Israel is escalating its attacks and its alleged ‘genocide has continued apace and has just reached a new and horrific stage’. Representing SA’s legal team of nine, Madonsela said SA’s request had been amended ‘to reflect the ever-increasing gravity of the situation’.
Additionally, SA requested the court to order Israel to ‘take all effective measures to ensure and facilitate the unimpeded access’ to Gaza for UN officials and other international organisations to provide humanitarian aid and assistance, and access for journalists and investigators. The Daily Maverick reports that SA also asked that Israel file a public report to the court on all measures taken to give effect to any provisional measures the court may order, within one week from the date of the order. John Dugard, a senior advocate and renowned expert in international law, pointed out that ‘new facts’ allow the court to issue new orders or amend its previous orders. ‘A ceasefire is needed for the sake of humanity,’ he said. Advocate Max du Plessis SC argued that Israel’s ‘sealing off entry and exit’ at the last crossings in Rafah led to disruption of aid to Palestinians. With attacks on hospitals, aid vehicles and even children, it leads to ‘only one inference ... (and that is) genocidal intent’. Business Day reports that Vaughan Lowe KC told the court that a destructive campaign in Rafah would destroy ‘the foundation of Palestinian life’ in the territory. ‘If the court does not act now the possibility of rebuilding a viable Palestinian society in Gaza will be destroyed, at least for the lifetime of those who survive the current horrors of Gaza,’ he said. SA also demanded access for reporters and war crimes investigators to Gaza, to collect and preserve evidence of potential war crimes.
Israel's Deputy Attorney-General for International Law, Gilad Noam, told the ICJ that Israel was given until Wednesday to respond in writing. Then, suddenly the ICJ announced it would hold oral hearings starting on Thursday. Israel could, therefore, not secure the services of its chosen legal team and sought a postponement until Monday. This the ICJ denied, sticking instead, said Noam pointedly, to the timeline SA had requested. But in a show of its respect for the court and international law, said Noam, Israel would respond in good faith – unlike SA. Over the course of the hour and a half that followed, Noam and Tamar Kaplan Tourgeman, a lawyer for Israel's foreign Affairs Ministry, bluntly accused SA of seeking to mislead the ICJ in order to hamper Israel's efforts to free hostages being held in Gaza and create a peaceful future by eliminating Hamas. News24 reports that SA had rushed to the ICJ to protect Hamas' military stronghold of Rafah, Israel charged, while claiming it was protecting the civilians placed in harm's way by Hamas. ‘SA would do well to tell its ally Hamas to stop exploiting hospitals and other protected sites as military command centres,’ said Tourgeman.
SA's actions, said Noam, showed its desire to keep Hamas in control of Gaza, where it will continue to subjugate the population, while Israel seeks peace by taking Hamas out of the equation, reports News24. Because of its concern for civilians, said Noam, Israel had not assaulted Rafah broadly, but had engaged instead in ‘limited and localised operations’ after warning civilians to evacuate. Israel said SA's claims of genocide relied on information from Hamas sources ‘or those subject to Hamas intimidation’ while ignoring what Israel has to say in response; that SA selectively quotes Israeli politicians so that their promises to uproot Hamas appear to be an incitement to genocide against Palestinians in general; and that in one case SA mistranslated the word ‘dismantle’ as ‘destroy’. An honest approach to the ICJ would take note of the ‘remarkable humanitarian efforts’ by Israel as well as the ‘crimes committed constantly by Hamas and the circumstances that compel Israel to respond to them’, said Tourgeman. Instead, he said, SA ‘offers grandstanding and rhetoric, but no real evidence’ while hardly mentioning Hamas at all. On Thursday, SA told the ICJ it had no choice but to order a complete, immediate and unconditional withdrawal of all Israeli forces from the whole of Gaza. But Tourgeman said such an order would mean the ICJ sides with terrorists. SA now has until 12:00 today to respond in writing to Israel's arguments.
In the final few minutes of Israel’s arguments, someone shouted ‘liars!’ and the court cut the feed. Tourgeman, who was reading Israel’s final submission to the court, saying ‘the State of Israel requests the court to reject the request for the modification and indication of provisional measures submitted by the Republic of South Africa’. According to a Daily Maverick report, Noam said earlier: ‘This case, even by its very name, the Application of the Convention of the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, suggests an inversion of reality. It has given rise to SA’s egregious and repeated efforts to bring Israel before this court through the most obscene exploitation of the most sacred convention,’ Noam said. ‘Calling something a genocide again and again does not make it genocide. Repeating a lie does not make it true,’ he added. ‘Armed conflict is not a synonym for genocide,’ he said.
Meanwhile, a group of lawyers want SA’s ruling ANC to be investigated for allegedly receiving bribes from Iran. The Jerusalem Post on Thursday reported that a group of 160 lawyers, led by the Israeli law centre Shurat Hadin called on US Secretary of State Antony Blinken, the US Department of Justice and congressional leaders to probe the ANC under the Magnitsky Act for allegedly participating in acts of significant corruption involving bribery. The Sunday Tribune reports that the Act allows the office of foreign assets control, a US Treasury Department financial intelligence agency, to blacklist an individual or entity and block all of its assets in the US or in possession or control of Americans. They claim officials accepted bribes from Iran that were intended to cover ANC debts in return for which party members agreed to pursue the case at the ICJ, blaming Israel for committing genocide in Gaza. Their letter highlights numerous meetings between officials of the Islamic Republic and SA, especially after the 7 October attack by Hamas on Israel. The ANC was unavailable for comment regarding the allegations.
