Israel has long maintained it is defending its citizens against terrorist organisations that want to destroy it. These groups, it says, treat civilians as human shields and use non-military infrastructure as places from which to organise and launch their military assaults. Israel has the right to defend itself. Israel is the real victim.
After the horrific Hamas attack of October 7 2023, this version has been put forward with even greater zeal, even as international bodies warned of the desperate humanitarian crisis in Gaza and of the risk of genocide. Israel continues to blame everything on Hamas, saying it and other groups like it are the ones with genocidal intent.
Courts are usually good places to test versions. Narratives that may survive, thrive even, in the public sphere can crumble when they are subjected to the rigours of the court process. This is because of the many rules and procedures courts have developed over time to assist with truth-finding. In South African courts, this is so even in urgent interim proceedings.
Take an application for an urgent interim interdict in our courts. An application will be made on notice of motion, with a founding affidavit made on oath. An answering affidavit will then be filed, also on oath, containing a response to each specific allegation in the founding affidavit. There will also be a replying affidavit, again responding to each allegation in the answering affidavit. When the parties appear before the judge, argument will follow a similar pattern.
What the world witnessed [at the ICJ] was an untested version of what Israel has maintained all along: South Africa had erased the role of Hamas — the party with real genocidal intent — and Israel was defending itself, as is its right, against an enemy that did not care about human life
There are also rules of evidence. Counsel cannot just say anything in court and claim it as a fact. In the end, the court, and everyone watching, is in a much better position to judge how probable a version is.
But the International Court of Justice (ICJ), in the SA v Israel hearing last week, did not work like that. The hearing was an urgent preliminary skirmish in a much bigger case that could take years to decide. South Africa was asking the ICJ to indicate “provisional measures” — to make interim orders that would preserve the parties’ rights while the main case, to determine whether Israel has committed genocide, is decided.
South Africa submitted its application to the ICJ on December 29, and Israel had two weeks to scrutinise and contest its evidence. But the first time South Africa, or anyone else, learnt what Israel’s case was, was on the day it was argued in court. South Africa had no opportunity to reply to Israel’s case.
As far as Israel’s case was concerned, what the world witnessed was an untested version of what Israel has maintained all along: South Africa had erased the role of Hamas — the party with real genocidal intent — and Israel was defending itself, as is its right, against an enemy that did not care about human life and used its own people as human shields.
Israel had the opportunity to contest a number of factual assertions made by South Africa — to say, for example, that it had relied on “unverified statistics provided by Hamas itself” — when it referred to the number of casualties. It also contested South Africa’s claim that the Israel Defence Forces (IDF) had given 24 hours’ notice to civilians in northern Gaza to evacuate the area. “In fact, the IDF urged civilians to evacuate to southern Gaza for [more than] three weeks before it started its ground operation,” Israel said.
But what of Israel’s facts? It is unclear what its sources were. The references to most of them are cited in the transcript only as “Volume, tab 1” or “Volume, tab 10”. The court has the volume, and the public does not. A request to the court for access to it was denied.
But if these sources are Israeli government ones, they would be as unreliable as the Hamas numbers complained of by Israel.What is more, the numbers from the Gaza Health Ministry are the only ones available, and NGOs have said that, when the Gaza Health Ministry’s numbers have been checked in the past, they have been generally accurate.
If South Africa had been able to reply, its team might have argued that most of its sources were independent UN ones. Its team might also have disputed facts put before the court by Israel.
For example, Israel’s lawyers said: “Just last week ... a dozen bakeries reopened with the capacity to produce more than 2-million [loaves of bread] a day.” Since the population of Gaza is about 2.3-million, this should have been a significant development. However, a recent statement, admittedly made after the hearing, by UN experts said that “most bakeries are not operational, due to the lack of fuel, water and flour”.
Had it been given the opportunity to reply, the South African team might also have pointed to how Israel did not answer many of their own specific factual allegations and glossed over others with generalities.
For example, a specific allegation about aid trucks being blocked was not answered. Israel said there was no limit on the amount of aid that could enter the country, and in a generalised response said: “Because Hamas for years has used aid consignments to smuggle weapons, security checks of all goods going into Gaza are required, as acknowledged by international humanitarian law.”
Israel also said food aid was “constantly” stolen by Hamas. Its team four times made this claim about stolen food aid. There is only one citation for this claim — “Volume, tab 10”.
If Israel ignores the order, this will be uncomfortable for those states that have so far supported it, but have always respected the ICJ
In this way, the procedural design of the provisional measures hearing allowed Israel to turn its day of argument into a reiteration of its long-held narrative. How true this narrative is will await the far more rigorous procedure that the court uses when the main case is argued.
However, none of this means South Africa won’t succeed in persuading the court to grant provisional measures. The judges will see what the public cannot. If the sources for Israel’s case lack credibility, they will see this.
More crucially still, for provisional measures to be ordered, all South Africa needed to show was that it had a “plausible” case. It is a low threshold to meet, perhaps why the ICJ used the procedure it did. When one considers all the facts and figures meticulously detailed by South Africa, it is difficult to see how the court could avoid finding it has such a case.
The real question is what provisional measures the court will grant. South Africa has asked for several, such as Israel suspending its military operations in Gaza. Israel made a strong argument that, since Hamas was not before the court (because it is not a state), such an order would bind only it, leaving it wide open to further attacks by Hamas. Such an order would also prevent Israel from rescuing the remaining hostages.
While South Africa said other forums could hold Hamas accountable, ordering Israel to cease fighting in Gaza would place the ICJ in a difficult position.
However, the court could grant other provisional measures. South Africa has asked for an order to prevent Israel from expelling Palestinians from their homes and depriving them of food, water and humanitarian assistance. Israel took exception to the wording of this measure, so the court may reformulate it. It may also make a softer order that calls upon all states to respect international law.
But whatever provisional order is made, it would be significant. Such an order would mean the highest world court had acknowledged there was a plausible case for genocidal intent by Israel. If Israel ignores the order, this will be uncomfortable for those states that have so far supported it, but have always respected the ICJ.
Even if South Africa fails entirely at this stage, its case is still a victory for South Africa (and Palestine) in another way: the plight of the Palestinian people, so often marginalised from the international agenda, was placed front and centre.
It is no coincidence that on the eve of the hearing, the South African national anthem was being sung in Ramallah. Palestinians were seen and heard by the world on January 11.
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