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3 things to know about the genocide case against Israel in The Hague

Judges and parties stand up during a hearing at the International Court of Justice in The Hague, Netherlands, Friday. The United Nations' court opened hearings Thursday into South Africa's allegation that Israel's war with Hamas amounts to genocide against Palestinians, a claim that Israel strongly denies.
Patrick Post
Judges and parties stand up during a hearing at the International Court of Justice in The Hague, Netherlands, Friday. The United Nations' court opened hearings Thursday into South Africa's allegation that Israel's war with Hamas amounts to genocide against Palestinians, a claim that Israel strongly denies.

A hearing on Friday concluded two-days of arguments in a case brought by South Africa, a longtime critic of Israel's treatment of Palestinians, against Israel for the alleged crime of genocide against Palestinians. The case is being heard before the United Nations' International Court of Justice in The Hague, Netherlands. The court's 15 judges were joined by one judge each from South Africa and Israel.

What evidence did South Africa show to support its charge against Israel of genocide?

In nearly three hours of testimony, lawyers and experts on behalf of South Africa presented evidence arguing that Israel's three-month-long military campaign in Gaza has gone beyond a war with Hamas — the Palestinian militant group that attacked Israel on Oct. 7, killing 1,200 people and taking 240 hostages, according to Israel. The South African legal team argued Israel's offensive now includes all 2 million Palestinians who reside in Gaza.

"The level of Israel's killing is so extensive that nowhere is safe in Gaza," South African lawyer Adila Hassim said to the court.

"As I stand before you today, 23,210 Palestinians have been killed by Israeli forces during the sustained attacks over the last three months," said Hassim, "at least 70% of whom are believed to be women and children."

Hassim said the Israeli military dropped 6,000 bombs a week on Gaza in the first three weeks of its campaign and dropped 2,000-pound bombs onto areas declared safe by Israel, including refugee camps.

As a result, she said, more than 1,800 families in Gaza have lost multiple family members, and 85% of all Gazans have been forced to flee their homes.

"This killing is nothing short of destruction of Palestinian life," Hassim said. "It is inflicted deliberately. No one is spared. Not even newborn babies. The scale of Palestinian child killings in Gaza is such that U.N. chiefs have described it as a 'graveyard for children.' "

South Africa's delegation insisted that genocidal intent is shown not only by the way Israel has launched its military campaign, but by comments from leaders like Prime Minister Benjamin Netanyahu. In late October in an address to Israeli forces, Netanyahu invoked the story of Amalek, a figure in the Hebrew Bible who tried to destroy the Jewish people.

"This refers to the biblical command by God to Saul of the retaliatory destruction of an entire group of people," said South African legal scholar Tembeka Ngcukaitobi, who said Netanyahu's reference was meant to justify genocide.

How has Israel defended itself against the charge of genocide?

Netanyahu responded swiftly to South Africa's testimony. "The hypocrisy of South Africa knows no bounds," he said in a video statement immediately following the first day of testimony in The Hague. "The state of Israel is accused of genocide at a time when it is fighting genocide."

In Israel's opening arguments before the court on Friday, Israeli lawyer Tal Becker said Israel is "singularly aware" of why the Genocide Convention was adopted, referring to the systematic murder of 6 million Jews in the Holocaust, which gave birth to the convention invoked in these proceedings.

"The applicant has now sought to invoke this term in the context of Israel's conduct in a war it did not start and did not want," Becker said, "a war in which Israel is defending itself against Hamas, Palestinian Islamic Jihad and other terrorist organizations whose brutality knows no bounds."

Becker told the court that South Africa's case hinges on a "deliberately curated, decontextualized and manipulative description of the reality of current hostilities," and that it intentionally ignored the role of Hamas in Israel's military response.

"The applicant's submissions sounded barely distinguishable from Hamas' own rejectionist rhetoric," Becker said of South Africa's case.

Becker told the court that if Hamas surrenders and releases its hostages, Israel's hostilities against the group would end. The Israeli presentation acknowledged the suffering of civilians in Gaza, but argued it has no genocidal intent. The civilian toll, Israel argued, is the consequence of Hamas' practice of waging war among noncombatants.

"The court is also told of the dire humanitarian situation in Gaza," he added, "but it is not told of Hamas' practice of stealing and hoarding aid; it is not told of the extensive Israeli efforts to mitigate civilian harm, of the humanitarian initiatives being undertaken to enable the flow of supplies and provide medical attention to the wounded."

What's next?

A ruling may not come for years. On Thursday, South Africa devoted much of its three-hour testimony to persuading the court to issue a provisional ruling, similar to an emergency injunction, whereby the court could direct Israel to stop its military campaign in Gaza and allow more aid to reach Palestinians. Any such provisional ruling could come within weeks, but it's unclear whether Israel would follow any such ruling.

In research of International Court of Justice provisional rulings over the years, legal scholar Matei Alexianu has found that states comply with rulings in just half of all provisional rulings. Alexianu points out, though, that there are indirect effects.

"They declare certain values of the international order," said Alexianu, "It is valuable for other states and for the world community in general to have those values and those obligations reaffirmed in the long term."

Alexianu says if a state refuses to comply with provisional rulings from the court, it reminds the rest of the world which side of that international order they're on, and it can have long-term consequences for that state.

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Rob Schmitz is NPR's international correspondent based in Berlin, where he covers the human stories of a vast region reckoning with its past while it tries to guide the world toward a brighter future. From his base in the heart of Europe, Schmitz has covered Germany's levelheaded management of the COVID-19 pandemic, the rise of right-wing nationalist politics in Poland and creeping Chinese government influence inside the Czech Republic.