Israel Has No Defense

After South Africa laid out a damning case of genocidal intent against Israel in international court, Israel responded by shrugging it off, hardly even mounting a defense. Meanwhile, Netanyahu insisted that “No one will stop us, not The Hague… and not anyone else.”

Last week, the government of South Africa brought charges before the International Court of Justice—the highest judicial authority in the United Nations—accusing the nation of Israel of perpetrating a genocide in the Gaza Strip. In hearings that were broadcast globally, South Africa made the case that the unrelenting bombing campaign Israel launched in the wake of Hamas’ attack on October 7 of last year has amounted to an attempt to bring about “the destruction of the population” of Gaza.1 

Over the last three months, Israel’s bombing campaign has killed more than 1 in every 100 people in Gaza and continues to kill an estimated 250 people each day: More than 24,448 people have been reported killed and more than 61,504 wounded as of Wednesday, nearly 70 percent of whom have been women and children.2 More than 90 percent of Gaza’s people—almost 2 million—have been displaced from their homes. Meanwhile, Israel has continued to block large amounts of international aid from entering the Strip, using “starvation as a weapon of war,” according to Human Rights Watch. The UN’s World Food Program reported that “9 out of 10 households in northern Gaza and 2 out of 3 households in southern Gaza had spent at least one full day and night without food.” According to Michael Lynk, who served as the U.N. special rapporteur on human rights in the Palestinian territories from 2016 to 2022, “The scale of Palestinian civilian deaths in such a short period of time appears to be the highest such civilian casualty rate in the 21st century.”

This is only the second time in the history of the ICJ that one state has used the body to litigate the atrocities of another. The other occurred in 2019 when the Gambia—a small West African nation—brought charges against Myanmar for its genocide of Rohingya Muslims, which resulted in a ruling that forced the nation to halt acts violating the genocide convention. Should Israel be found guilty by the court’s panel of 15 judges, South Africa hopes that it will result in an interim order forcing Israel to halt its merciless bombing campaign. Importantly, South Africa does not have to immediately prove that Israel is committing a genocide, only that it’s plausible they are, to receive such an order. 

Most Western media outlets did not broadcast the hearings (while some, like the BBC, ignored South Africa’s presentation but broadcast Israel’s defense). Coverage of this event that did occur has largely ignored the substance of the case, with the story typically being some variant of “South Africa charges Israel with genocide, Israel steadfastly denies and claims persecution.” While this is technically accurate, it’s far from a full accounting of what actually happened. 

South Africa arrived at the court with a mountain of evidence depicting how Israeli officials have expressed the desire to wipe Gaza off the face of the Earth. The lawyers tapped to defend Israel did indeed respond with indignation and defiance at their accusation, but they did not actually refute the fundamental claim. This was not just incompetence but seems to have been part of a larger statement Israel was attempting to make: that it is simply above the law. Shortly after the proceedings concluded, Prime Minister Netanyahu made it crystal clear that even if the highest court in the United Nations finds his government guilty of the worst crime a country can commit, he has no intention of stopping. “No one will stop us, not The Hague… and not anyone else,” he said in televised remarks

The UN Prevention and Punishment of the Crime of Genocide, adopted in 1948 following the systematic murder of Jews during the Holocaust, defines “genocide” as the act of killing, maiming, or inflicting unlivable conditions “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” As such, South Africa’s case against Israel, filed initially in the form of an 84-page document last December, revolves mainly around the question of intent. The evidence consists largely of statements made by members of the Israeli government, including Prime Minister Benjamin Netanyahu and members of his cabinet, and the Israeli military. In their own words, these officials express a desire not just to defeat Hamas, but to totally destroy the people of Gaza. 

“An extraordinary feature in this case,” South African lawyer and legal scholar Tembeka Ngcukaitobi said before the ICJ, is “that Israel’s political leaders, military commanders, and persons holding official positions have systematically and in explicit terms declared their genocidal intent.” I highly recommend the full video of Ngcukaitobi laying out the case in painful detail. But if you are short on time, here are just a few of the statements South Africa has highlighted (compiled in a list by Robert Herbst in Mondoweiss):

  • Prime Minister Benjamin Netanyahu: “You must remember what Amalek has done to you, says our Holy Bible. And we do remember.” This is a reference invoking the Biblical story of the total destruction of the Amalek by the Israelites, which Biblical passage reads in the relevant part: “Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses.” 
  • President Isaac Herzog: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true. … and we will fight until we break their backbone.”
  • Minister of Defense Yoav Gallant:  
    • Israel is “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly.” 
    • “Gaza won’t return to what it was before. We will eliminate everything. If it doesn’t take one day, it will take a week. It will take weeks or even months, we will reach all places.”
  • Minister for National Security Itamar Ben-Gvir: “[t]o be clear, when we say that Hamas should be destroyed, it also means those who celebrate, those who support, and those who hand out candy — they’re all terrorists, and they should also be destroyed.”
  • Minister of Energy and Infrastructure Israel Katz: “All the civilian population in Gaza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.”
  • Minister of Finance Bezalel Smotrich: “We need to deal a blow that hasn’t been seen in 50 years and take down Gaza.”
  • Minister of Amihai Eliyahu: “The north of the Gaza Strip, more beautiful than ever. Everything is blown up and flattened, simply a pleasure for the eyes … We must talk about the day after. In my mind, we will hand over lots to all those who fought for Gaza over the years and to those evicted from Gush Katif” [a former Israeli settlement].  “There is no such thing as uninvolved civilians in Gaza.”
  • Minister of Agriculture Avi Dichter: “We are now actually rolling out the Gaza Nakba.” [This term, “Nakba,” is a reference to the forced expulsion of around 750,000 Palestinians during the war that established Israel as an independent state. Israeli historian Ilan Pappe refers to it as The Ethnic Cleansing of Palestine.]
  • Knesset Deputy Speaker and Foreign Affairs and Security Committee Member Nissim Vaturi: “Now we all have one common goal — erasing the Gaza Strip from the face of the earth.” 
  • Israeli Reservist Major General and adviser to the Defense Minister Giora Eiland: 
    • “The people should be told that they have two choices; to stay and to starve, or to leave. If Egypt and other countries prefer that these people will perish in Gaza, this is their choice.”  
    • “When you are at war with another country you don’t feed them, you don’t provide them electricity or gas or water or anything else . . . A country can be attacked in a much broader way, to bring the country to the brink of dysfunction. This is the necessary outcome of events in Gaza.” 
    • “Israel has no interest in the Gaza Strip being rehabilitated and this is an important point that needs to be made clear to the Americans.”  
    • “The State of Israel has no choice but to make Gaza a place that is temporarily, or permanently, impossible to live in.”
    • “Who are the ‘poor’ women of Gaza? They are all the mothers, sisters or wives of Hamas murderers. . . . The international community warns us of a humanitarian disaster in Gaza and of severe epidemics. We must not shy away from this, as difficult as that may be. After all, severe epidemics in the south of the Gaza Strip will bring victory closer . . . It is precisely its civil collapse that will bring the end of the war closer. When senior Israeli figures say in the media ‘It’s either us or them’ we should clarify the question of who is ‘them’. ‘They’ are not only Hamas fighters with weapons, but also all the ‘civilian’ officials, including hospital administrators and school administrators, and also the entire Gaza population who enthusiastically supported Hamas and cheered on its atrocities on October 7th.”

Just for the record, I left a lot of statements out. But this abridged version is more than enough to get across the point that Israel’s highest officials do not distinguish between Hamas militants and civilians, and are intentionally inflicting unlivable conditions—most notably starvation—upon the people of Gaza with the goal of driving them out.3 South Africa also drew a clear line between the statements of Israel’s leaders and the actions of soldiers on the ground. Ngcukaitobi continued:

The genocidal intent behind these statements is not ambiguous to the Israeli soldiers on the ground. Indeed, it is directing their actions and objectives…On 7 December 2023, Israeli soldiers proved that they understood the Prime Minister’s message to “remember what the Amalek has done to you” as genocidal. They were recorded by journalists dancing and singing: “We know our motto: there are no uninvolved . . .”; that they obey one commandment, “to wipe off the seed of Amalek.” The Prime Minister’s invocation of “Amalek” is being used by soldiers to justify the killing of civilians, including children. These are the soldiers repeating the inciting words of their Prime Minister.

Israeli soldiers in Gaza were filmed dancing, chanting and singing in November: “May their village burn; may Gaza be erased.” There is now a trend among the soldiers to film themselves committing atrocities against civilians in Gaza, in a form of “snuff” video. One recorded himself detonating over 50 houses in Shujaiya; other soldiers were recorded singing: “We will destroy all of Khan Younes and this house”; “we will blow it up for you and for everything you do for us.” These are the soldiers putting into effect their command.

South Africa’s report further describes actions that Israel, through its military campaign, has taken to make Gaza uninhabitable. In addition to the staggering civilian casualty count and mass displacement, it mentions that:

Israel has also laid waste to vast areas of Gaza, including entire neighbourhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes [more than 60% of Gaza’s housing stock], alongside extensive tracts of agricultural land, bakeries, schools, universities, businesses, places of worship, cemeteries, cultural and archaeological sites, municipal and court buildings, and critical infrastructure, including water and sanitation facilities and electricity networks, while pursuing a relentless assault on the Palestinian medical and healthcare system. Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.

The report also makes sure to give Israel’s occupation of Palestinian lands and ubiquitous human rights violations prior to October 7 due attention. It includes a lengthy quotation from 2022 in which the UN’s Special Rapporteur on human rights in the Palestinian territories said:

“In Gaza, the apparent strategy of Israel is the indefinite warehousing of an unwanted population of 2 million Palestinians, whom it has confined to a narrow strip of land through its comprehensive 15-year-old air, land and sea blockade (with further restrictions by Egypt on the southern border of Gaza). Ban Ki-moon has called this political quarantining of the population a “collective punishment”, which is a serious breach of international law. The World Bank reported in 2021 that Gaza had undergone a multi-decade process of dedevelopment and deindustrialization, resulting in a 45 per cent unemployment rate and a 60 per cent poverty rate, with 80 per cent of the population dependent on some form of international assistance, in significant part because of the hermetic sealing of the access of Gaza to the outside world. The coastal aquifer, the sole source of natural drinking water in Gaza, has become polluted and unfit for human consumption because of contamination by seawater and sewage, substantially driving up water costs for an already destitute population. Gaza is heavily dependent on external sources — Israel and Egypt — for power, and Palestinians live with rolling power blackouts of between 12 and 20 hours daily, severely impairing daily living and the economy. The entry and export of goods is strictly controlled by Israel, which has throttled the local economy. The health-care system in Gaza is flat on its back, with serious shortages of health-care professionals, inadequate treatment equipment and low supplies of drugs and medicines. Palestinians in Gaza can rarely travel outside of Gaza, which is a denial of their fundamental right to freedom of movement. More acutely, they have endured four highly asymmetrical wars with Israel over the past 13 years, with enormous loss of civilian life and immense property destruction. The suffering was acknowledged by Antonio Guterres in May 2021, when he stated: “If there is a hell on earth, it is the lives of children in Gaza.”.

Israel’s dispossession of Palestinians has been condemned by the UN at numerous points throughout its history. But this is the first time it has been made to defend its actions before an international tribunal. So far, Israel’s public response has largely ignored the substance of the allegations brought against its leaders and attacked the very premise that its actions should be scrutinized at all. 

On the day of South Africa’s presentation, Prime Minister Benjamin Netanyahu issued a statement saying “Today we saw an upside-down world. Israel is accused of genocide while it is fighting against genocide”—downplaying the inconvenient fact that since October 7, Israel’s bombing campaign has killed about 20 times as many people as Hamas did. Other Israeli officials have referred to the accusation of genocide as “blood libel,” likening it to the most deplorable form of antisemitism. Israel’s foreign minister, Lior Haiat, made the absurd assertion that South Africa was “functioning as the legal arm of the Hamas terrorist organization” and that it “seeks to allow Hamas to return to commit the war crimes, crimes against humanity and sexual crimes they committed repeatedly on October 7.”

Israel’s lawyers, likewise, have made little effort to dispute the facts brought forth by South Africa, acting similarly indignant about the fact that they’ve been made to explain themselves at all. UK barrister Malcolm Shaw repeated the same thought-terminating clichés you’ve probably heard a thousand times if you regularly watch Israeli government officials get interviewed by the media. He called the IDF “the most moral army in the world” and said it “does everything to avoid harming the uninvolved.” 

Just as Israel’s political leaders did, Israeli lawyer Tal Becker accused South Africa without evidence of “enjoy[ing] close relations with Hamas” and of making arguments that are “barely distinguishable” from those of the militant group. Israel spent much of its defense focused on the attack committed by Hamas, with Becker declaring “If there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel.” 

But as Kenneth Roth, the former executive director of Human Rights Watch points out: “Its repeated invocation of Hamas’s horrible 7 October attack and alleged genocidal aspirations are irrelevant because atrocities by one side do not justify genocide by another. Its argument of self-defense is beside the point because a legitimate defense does not allow genocide.” At any rate, South Africa said less than halfway down the first page of its report that it “unequivocally condemns all violations of international law by all parties, including the direct targeting of Israeli civilians and other nationals and hostage-taking by Hamas and other Palestinian armed groups.” (Something they presumably would not do if they were working as the “legal arm of Hamas.”) But as South Africa made clear, “nothing can ever justify genocide, no matter what some individuals within the group of Palestinians in Gaza may have done.”

At other points, Israel’s defenders just straight-up lied in easily provable ways. For instance, Israeli lawyer Galit Raguan stated plainly that “hospitals have not been bombed.” This is flagrantly false. At least 14 hospitals have been hit directly in Israeli airstrikes, with many more having been damaged by nearby bombings. As of late December, the Northern part of Gaza did not have any functioning hospitals while just nine remained in the South. According to an article in Just Security by Elise Baker:

From Oct. 7 to Dec. 12, the World Health Organization recorded 231 attacks on health care in Gaza, which include airstrikes and shelling on hospitals and ambulances, detention of health workers, militarized searches of hospitals, and more. Hospitals have been attacked, surrounded, and raided since Dec. 12.

The defense lawyers have repeatedly claimed that Israel has allowed ample amounts of humanitarian aid to flow into Gaza. This is not true either. Not only have Israeli officials repeatedly emphasized the importance of blocking aid, with the explicit goal of starving Palestinians out of the Strip, but international observers report that this is exactly what has happened. Oxfam staff at the Rafah crossing, one of the only points of entry for outside aid, report “massive overcrowding, with very little food and water, and essential medicines having run out. This crisis is further compounded by Israel’s restrictions on the entry of aid, closing borders, imposing a siege, and denying unfettered access. Currently only 10 per cent of the weekly food aid needed is getting in.” In an interview in The New Yorker, Senator Chris Van Hollen—who recently visited the Rafah crossing to view the humanitarian situation himself— described Israel’s blocking of aid supplies as “arbitrary”:

One of the things we witnessed personally was a large warehouse filled with humanitarian goods that had been rejected at Israeli inspection points. Goods like medical kits used to deliver babies, water-testing kits, water filters, solar-powered desalinization units, tents that people said might’ve been returned because they had metal poles. So a whole collection of rejected items that seemed purely arbitrary. And I will also say that when one item on a truck is rejected, the entire truck is turned back, and in talking to a truck driver and others we learned that some of these trucks take twenty days to go from the starting point to delivering assistance. So when I say, “a whole truck is turned back,” it goes all the way back to the beginning of the process.

Another repeated claim was that Israel gives “advance notice” to civilians “of areas in which the IDF intends to intensify its activities, co-ordinate travel routes for civilians and secure these routes.” But Israel has also frequently bombed those safe routes and areas. During the first week of the war, after Israel gave people in North Gaza 24 hours to evacuate to the south via two declared “safe routes,” Israel bombed a convoy traveling along one of those routes, in an attack that killed 70 people, including children. Within days after declaring Southern Gaza a safe area (having told people in the North to flee there under threat of death), Israel launched at least four attacks on cities and refugee camps there. Some “safe” areas in South Gaza were hit with 2,000 pound bombs—the deadliest in Israel’s arsenal—and a New York Times investigation found 208 “craters” left in the safe area. As Martin Griffiths, the UN’s Undersecretary-General for Humanitarian Affairs plainly put it in December: “There’s no place of safety. There’s no safe zones.”

Graphic: The BBC

Israel’s central claim, as articulated by Becker, has been that the country is fighting a “war it did not start and did not want” and is merely acting in its own defense after Hamas’ brutal attack. Israel’s lawyers have waved away the staggering casualty count as evidence against them, stating that “The inevitable fatalities and human suffering of any conflict is not of itself a pattern of conduct that plausibly shows genocidal intent.” As I’ve pointed out, though, what makes Israel’s attack on Gaza noteworthy is that the loss of life has been worse than in any other recent conflict. By the Israel Defense Force’s own admission, at least 67 percent of those killed have been civilians. (Though this estimate counts every adult male under 60 as a militant by default, meaning that the real ratio of civilians to militants killed is certainly much higher.) Even if we take the IDF’s conservative estimate at face value, this makes Israel’s campaign more deadly for civilians than any since World War II. To put things further into perspective, more civilians were killed in Gaza in the first month of the war alone than were killed in 18 months since Russia’s invasion of Ukraine (The Biden administration dismissed the charges against Israel as “meritless” but referred to Russia’s campaign as a genocide within two months of it being launched, even though Israel’s war has exacted a far greater number of casualties). And while casualty numbers alone may not demonstrate genocidal intent, the numerous statements from Israeli officials about destroying Gaza in its entirety and sparing no one certainly seem to. 

Israel has no answer for this, or they would have given one. Instead, Barrister Malcolm Shaw waved these statements away entirely, somehow saying with a straight face that South Africa provided “little beyond random assertions to demonstrate that Israel has or has had the specific intent to destroy in whole or in part the Palestinian people as such.” Shaw later said, “To produce random quotes that are not in conformity with government policy is misleading at best.” He seriously suggested that Israel’s prime minister, president, defense minister, national security minister, and Knesset members are just some “random” folks whose statements have nothing to do with government policy. I’d say that the language these officials have used of “flattening” Gaza is pretty well in “conformity” with Israel’s policy of destroying or damaging 70 percent of the buildings there. I’d say the statement about “erasing the Gaza Strip from the face of the earth” is a pretty apt description for the airstrikes Israel has conducted that, as Amnesty International reports, have “wiped out” entire multigenerational family lines.4

It should be reiterated that Israel has been called before international tribunals before, but has never appeared in person to defend itself. Presumably, this is because it never felt the need. Because the U.S. vetoes basically any UN Security Council resolution against them and provides them with an unending stream of military funding, the primary audience for Israel’s public relations campaign has been U.S. politicians who are already overwhelmingly sympathetic. This is probably why Israel’s rhetorical strategy since this war began has consisted of little more than branding any critics as Hamas-loving antisemites. They simply haven’t had to use anything more substantial to get everything they want out of Americans who are already primed to agree with them. This lazy line of attack may be enough to get pro-Palestine student groups in America banned and get congresswomen censured, but it probably won’t work in court. And Israel seems to know they don’t have a very strong defense. According to a leaked cable obtained by Axios, the Israel Foreign Ministry has been attempting to pressure foreign embassies to stop the ICJ from taking up this case. 

We still should not get our hopes up too much about Israel facing some modicum of accountability. For one thing, many of the judges on the ICJ represent countries with close alliances with Israel, so a ruling against Israel is far from a sure thing (though, the bar is lower for the provisional measures to halt the war, which South Africa has requested.) And while the rulings of the International Court of Justice cannot themselves be vetoed, the enforcement of those rulings is carried out by the UN Security Council, which is subject to a veto by the U.S., one of the council’s permanent members. While a court ruling against Israel would put its unprecedented crimes in Gaza in sharper relief and hopefully pressure the U.S. into peeling back some support, the Biden administration (and certainly a prospective second Trump administration) have never shied away from backing heinous actions by Israel before. Ultimately, this just underscores that we need to fundamentally reimagine how our system of international accountability and justice works. As long as these institutions are structured hierarchically, with world superpowers like the United States wielding outsized control, they will never be able to apply international law evenly.

With this in mind, it’s no wonder that Israel’s defense felt so half-hearted. Why should they even try to refute the case on its merits if they know that, with America in their corner, they’ll get off scot-free?

This article is adapted from a recent item in the Current Affairs News Briefing. Subscribe today!

  1. Around the world, few people understand the crimes of apartheid and genocide better than South Africans. Many of the lawyers and experts now bringing their case to the ICJ lived through the years of white supremacist rule before 1990, when Black South Africans were confined to so-called “homelands,” just as Palestinians are confined to Gaza and the West Bank today. During his lifetime, former president Nelson Mandela drew a direct link between the two struggles, famously saying that “we know too well that our freedom is incomplete without the freedom of the Palestinians.” At the same time, it should always be remembered that the United States and Israel were among the last remaining countries to support South Africa’s white rulers during the apartheid era, long after the majority of the world had begun to call for justice. That history is echoing in the halls of the Hague today, and it’s no accident that South Africa alone, among many of the world’s more powerful and wealthy nations, has had the courage to bring this case. 

  2. These numbers come from the Gaza Health Ministry, which Western media often points out is “Hamas run” in an effort to discredit its findings. However, according to the Associated Press: “The ministry is the only official source for Gaza casualties. Israel has sealed Gaza’s borders, barring foreign journalists and humanitarian workers. The AP is among a small number of international news organizations with teams in Gaza. While those journalists cannot do a comprehensive count, they’ve viewed large numbers of bodies at the sites of airstrikes, morgues and funerals. The United Nations and other international institutions and experts, as well as Palestinian authorities in the West Bank — rivals of Hamas — say the Gaza ministry has long made a good-faith effort to account for the dead under the most difficult conditions. ‘The numbers may not be perfectly accurate on a minute-to-minute basis,’ said Michael Ryan, of the World Health Organization’s Health Emergencies Program. ‘But they largely reflect the level of death and injury.’ In previous wars, the ministry’s counts have held up to U.N. scrutiny, independent investigations and even Israel’s tallies.” 

  3. Since the charges were filed, Israeli leaders have also begun to publicly discuss “voluntary migration” of the Gazans they displaced to other nations, including as far away as the Congo. The report also does not make mention of Netanyahu’s recent statement of intent to “thin out” the population of Gaza “to a minimum,” or statements from Israel’s finance minister Bezalel Smotrich about the goal of replacing displaced Gazans with Israeli settlers. 

  4. According to a report last week from The Guardian: “More than 1,800 Palestinian families in Gaza have lost multiple family members and hundreds of multi-generational families have been wiped out with no remaining survivors … This killing is nothing short of destruction of Palestinian life.” 

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