Since morning, we have been waiting for the opening of the historic hearing on South Africa's petition against Israel, based on the Convention on the Prevention and Punishment of Genocide of 1948. A treaty of which the State of Israel is one of its drafters, and of which the first countries are members. Not only that, the petition is filed by South Africa, which acceded to the Convention only in 1998, at the end of the apartheid regime.
Many were surprised that Israel was participating in the discussion and even sent its best minds to represent the State of Israel and its citizens in The Hague. And for good reason, the court's decision on a request for temporary relief may order a cessation of hostilities. The decision will be binding on the State of Israel and third countries.
The "testimonies" presented by the South Africans: soldiers' morale songs and videos of explosions // Netael Bandel
The bar of proof in the proceeding is very low. One only has to prove that there is a fear of genocide and irreversible damage. All based on a large-scale humanitarian crisis in Gaza, which is hard to deny. South Africa claims that the killing of civilians in Gaza is deliberate, effectively creating living conditions that, if continued, will inevitably lead to the destruction of Palestinians in Gaza. At the same time, South Africa defines Israel's actions as an "increased intent" to commit genocide, based on unfortunate statements by senior Israeli public figures, some of which are partially and misleadingly quoted. The prime minister consistently stressed, alongside the intensity of the fighting, the identity of the enemy, which is Hamas and not the Palestinian people, which is also subject to Hamas terrorism.
It is very easy to convince the Israeli public that the words have no actual effect on defining the objectives of the fighting, the composition of the combat cabinet, the rules of engagement, the fighting spirit, the purity of arms, the existential need of the State of Israel and its citizens for its army, the people's army, to fight with respect for the rules of morality and military discipline.
It is harder to convince the international community, which is not involved in the complex reality internally and is exposed to statements, politicization, and shocking scenes of human suffering, of children, women and older people. Without going into the legal details, I will address the discussion, while identifying those who, in my humble opinion, constitute the heroes of today, the disgrace of the day, the weak arguments and the strong arguments, which must be addressed tomorrow, when the stage will be entirely of representatives of the State and citizens of Israel.
Families of the abductees demonstrate outside the ICC in The Hague // Ministry of Foreign Affairs
The hero of the day is undoubtedly the President of the Supreme Court (retired) Prof. Aharon Barak, who chose nobly and humbly to do the right thing, despite the incessant attacks on him over the past year by government ministers. Today's disgrace is unequivocally the background arguments that South Africa has chosen to wrap its arguments in writing and orally, describing the State of Israel as a "colonialist enterprise since 1948" and "a 75-year-old apartheid." It is particularly unfortunate that South Africa's claims themselves violate international law, since South Africa is also obligated by international law to act in good faith. It is impossible to argue on the basis of international law claims that violate that law.
The South African lawsuit identifies the handprint of Prof. John Dugard, who heads its legal team. Dugard is a former ad hoc judge on the court who, since at least 2001, has persecuted Israel in international forums, with religious piety, in order to tarnish it as an apartheid state.
The weakest argument is the statement that a state does not have the right to self-defense under international law when an attack is carried out by an armed group, which is not a state. This statement has no basis in international law, even though at least it was a failed statement in the court's opinion on the fence from 2004.
The judges enter the ICC in The Hague // Netael Bandel
My strongest argument is a description of human suffering and the large-scale humanitarian crisis in Gaza. Gaza's population is suffering. I do not believe that a sensible person would choose to be a citizen of Gaza now. It will be weighty, it will be pertinent, and it will touch on the facts, responsibility for the sad reality, Hamas's choice to fight, alongside the commission of atrocities, which South Africa also condemns in its petition, and some of which continue, as long as there are abductees in Gaza. The facts are what will refute the claims about the humanitarian aid entering the Gaza Strip, the humanitarian corridors, the overarching efforts to spare human life by the IDF, and especially on the other hand: Hamas' overarching efforts to leave "the Palestinian people barefoot," as influencers on the Gaza network put it, while Hamas uses violence against the residents of Gaza and instructs the residents to leave the aid to the tunnels and Hamas fighters.
The Israelis were also evacuated
Another important fact is that the civilian population is being evacuated extensively, just as the Israeli population (more than a quarter of a million in a much less densely populated area) is being evacuated, in accordance with international laws of war, and civilians will return to their homes at the end of the fighting. Contradictions in South Africa's arguments are, for example, the fact that it is impossible to hold the stick at both ends: on the one hand to call for humanitarian corridors that will allow the exit of the civilian population, and on the other hand to call this movement forcible transfer, ethnic cleansing and genocide. Another contradiction is to call the IDF the army with the world's most resources, and note that it is motivated by an intention to commit genocide. An intention to commit genocide, for about 100 days, with infinite power could have led to the murder of about a million people, just as it was in Rwanda – the genocide with weapons and cold blood.
Lesson of the day: We are part of the circle of nations and international law. We are not a gang but a state with equal rights, and it is good that we behave in a way that mainly respects us, our heritage, and that we will continue to do so, religiously, while not having to deal with legal processes but to lead them. So that we will take back our natural place among the peoples.
The writer represents victims of October 7, in The Hague, Germany, France and more, and is the founder of the Clinic for International Criminal and Humanitarian Law at Reichman University
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