Israel has just defended the indefensible in the International Court of Justice, in its quest to have the case brought by South Africa against it thrown out.
At the historic ICJ hearing on Thursday, South Africa – itself a past victim of murderous colonialism and apartheid for almost half a century – made an impassioned plea to stop Israel’s genocide.
It pressed the Court to make an Order for provisional measures to force the immediate cessation of Israel’s killing of the Palestinian population and to guarantee humanitarian relief to people with no food, no water, no medical supplies and no safe place to be, while the court decides the broader genocide case on the merit of the arguments and evidence, because the latter decision will take time.
South Africa argued the Court has ordered provisional measures to take effect immediately in past cases that have been less acute, quoting the U.N. Secretary General who declared this genocide is unprecedented in severity, scale and speed.
On the evidence presented by Pretoria of genocidal acts, and clear genocidal intent at every level of leadership of Israeli society starting with the Prime Minister – who repeatedly invoked the Amalek – the President, Ministers and members of the Knesset, down to IDF soldiers, Rabbis, comedians and singers, it was hard to fathom what Israel would argue the day after that can dissuade the court from the facts before it and from swift action to prevent further atrocities perpetrated against Palestinians as a group, including children and babies.
Despite ignoring a litany of UN Resolutions in the past, Israel is not only present in force at this hearing, it is clearly concerned about what it considers potential consequences should the ICJ find against it. In a leaked diplomatic cable it states
“A ruling by the court could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic, security ramifications”.
Israel is exerting enormous political and diplomatic pressure to avoid the potential consequences. Its number one backer the US has dismissed Pretoria’s comprehensive, well documented submission as “meritless, counterproductive, and completely without any basis in fact whatsoever”. It beggars belief that this statement could be delivered with a straight face given the amount of evidence of both genocidal acts and genocidal intent we all have received daily on our devices.
On day two we heard Israel’s defence. It argued there is neither a genocide nor genocidal intent. Rather, it has been forced to root out Hamas terrorists who are everywhere in Gaza – in homes, schools, mosques, hospitals and in ambulances – and who fire missiles from launch sites adjacent to essential infrastructure.
Hence the wholesale destruction of buildings and infrastructure and ‘unfortunate’ civilian deaths, the responsibility for which really rests with Hamas. It also claimed the bombing of a major hospital was caused by a Hamas rocket when the nature of the damage was indicative of an IDF missile. It claimed to have warned civilians to move temporarily from areas it was about to bomb, to be flooding Gaza with humanitarian aid such as flour, that there is no shortage or restriction on water, that it has already scaled back its operation, that the provisional measures requested by South Africa are unnecessary given the assurances Israel is offering and would indeed infringe on its right to defend itself as no such measure is sought against Hamas. If the Court approved the measures, Hamas would be able to continue its atrocities and Israel would be unable to defend itself – this latter point perhaps the only consideration not dealt with by South Africa’s otherwise fine case.
In an attempt to distance itself from the notion that as an occupying power it is not entitled to defend itself, Israel reiterated multiple times it had pulled out of Gaza in 2005.
South Africa had made clear international law does not permit genocide under any circumstances, ever, let alone committed in ‘self defence’ by an occupying power because it is a right an occupier does not have in International Law. Whilst Hamas was elected in 2007, there is no serious notion that the people of Gaza have been anything but under Israel’s boot – their every move is determined by Israeli authorities, including whether they are able to obtain life saving cancer treatment for their children, and while on Friday Israel boasted about its legal system, Gazan’s are under military law and are subjected to random terrorizing raids according to former IDF soldiers.
The African State emerges as a beacon for the world and puts to shame all those countries that have lacked the courage to call out this wave of atrocity, or worse, actively enabled the unfolding genocide by continuing to supply arms to Israel – primarily the US and UK.
The morning after day one of the historic genocide hearing, it did not appear on a single front page in the Australian mainstream media. This is unfathomable given the controversy and seriousness of the situation, the high level of media interest since October 7 and the relevance of events at the ICJ to Australia not only as an international signatory to the Genocide Convention but as a nation with substantial Jewish and Palestinian communities.
Whilst Australia finally supported a ceasefire in the latest UN vote concerning Israel, it is very, very late in the scheme of things. The thousands of children who were buried alive, or died a slow, painful death after severe burns, or had limbs amputated without anaesthetic and are now at risk of death from infection, starvation and disease, might have been alive with bodily and mental integrity had Australia and others called out the apartheid state and pushed for a just resolution.
The world has failed the Palestinians. Australia has failed them. Where our government has fallen far short, the hopes of civil society are raised by South Africa and now rest with the 15 judges of the International Court of Justice, one of whom is Australian Hilary Charlesworth.
The dehumanisation of Palestinians has been abetted by the mainstream media where a pro Israeli bias is ubiquitous. That too has enabled the genocide and ethnic cleansing over decades. That widespread bias that places calls of ‘genocide’ in inverted commas, but not Israeli ‘self defence’. A bias that disregards the number of Palestinian doctors, nurses, and teachers that have been killed, along with over 100 journalists, since October 7. An unremarkable fate only for people who are not white. It’s worth a mention somewhere, but not a shouted headline.
If the court issues an Order for Israel to cease its assault, there may be repercussions if Israel fails to do so. States that are signatories to the Genocide Convention will be expected to halt arms exports to Israel and consider the imposition of sanctions. As always, it will depend on the international community’s willingness to act to uphold international law, and if it fails to do so, it is an admission that when the world said ‘Never Again’ after the Holocaust, they were but hollow words. It will also further entrench the infamous Rules Based Order squarely against International Law.
At the conclusion of Israel’s arguments, the President, Judge Joan Donoghue said simply that a decision on the provisional measures will be handed down ‘as soon as possible’.
Israel’s defence relied on dismissing South Africa’s arguments as implausible, making many assertions it could not really offer conclusive evidence for, and some fancy legal gymnastics. It shared excerpts from its War cabinet documents to prove Israel has taken every precaution to protect civilians and argued they are the only record that matters, not the rhetoric referred to by South Africa of genocidal intent. I hope this will not fool the judges.
Will Israel’s “assurances” be taken seriously by the judges?
Or are they across the interminable footage – the brutal testimony of genocide – that we have all seen?
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Mary Kostakidis is a journalist. She presented SBS World News for two decades.