"We are optimistic. The bar of proof required to issue an interim injunction against Israel to stop the war is high, the Israeli team is making very significant legal preparations, so it is not going to be easy for South Africa." This is what a senior Justice Ministry official who is part of Israel's defense team, which will soon leave for The Hague, told Israel Hayom.
Prime Minister's Spokesperson's Office
The International Genocide Convention, to which Israel is a signatory and binding it, lists a number of actions that may amount to genocide only if they are carried out "with the intention of destroying, complete or partial annihilation." In other words, the crime of genocide has two components that must be proved: action and intent. Regarding the practical component, South Africa will provide data on the humanitarian crisis in Gaza, while Israel will indicate its civilian aid, as well as the steps it is taking as part of ensuring the purity of arms.
Legal experts believe that a significant weakness lies precisely in the element of intent. South Africa detailed dozens of statements by senior Israeli officials regarding harm to the population.
Ruins in Gaza after IDF bombings, photo: AP
Israeli President Isaac Herzog, for example, was quoted as saying: "This is an entire nation responsible [for the massacre], the rhetoric about civilians who are not involved, are unaware, is completely untrue."
Attorney Michael Sfard, a left-wing activist and expert on international law, believes that Israel will have to provide the ICC with declarations regarding the safety of the population. Among other things, he estimated that "Israel must declare that every Gazan will be able to return home as soon as the fighting ends."
"Israel has a case"
In a similar lawsuit filed by Ukraine against Russia, the Russians claimed that they invaded Ukraine as part of an offensive because of genocide that Ukraine is committing against Russians in two of its regions. Israel will make a similar but different claim. Tamar Megiddo, a senior lecturer in the Department of International Relations at the Hebrew University of Jerusalem, assessed that "Israel's defense of the factual element is likely to be that it is fighting a defensive war in accordance with the laws of war, and not with the intention of committing genocide. Of course, she'll have to prove it."
Independence Square in Ukraine, photo: None
The threshold of proof in order to obtain an interim injunction is lower than the threshold of proof required for an absolute order. In 2019, the court issued such an order to Myanmar following a lawsuit filed against it by Gambia. The ICJ ruled at the time that the prosecutor was not required to prove violations of the Genocide Convention, and the Court was not required to make a final decision on the matter – but sufficient to prove that Israel's actions created a potential or danger of genocide.
As noted, the Justice Ministry is cautiously assessing that the court will not issue an interim injunction. Sfard also believes that Israel can get through Thursday's hearing: "Israel has a case. It's not easy, but there is."
In an article Megiddo wrote in the legal magazine ICON, she warned that even if the court rejects the request for an interim injunction, and even the prosecution as a whole, the backlog of quotes from senior Israeli government officials may constitute another offense that is not genocide, but incitement to genocide.
In such a case, the court will expect Israel to take action against such statements.
Wrong? We'll fix it! If you find a mistake in the article, please share with us