Israel Resorts To Victim Blaming At ICJ

Israel took recourse to defend itself from charges of genocide, watched globally, but structured and submitted as a case of genocide in the International Court Of Justice (ICJ) by South Africa.

After South Africa’s searing, evidence based and compelling indictment, Israel had two types of responses, one on the substantive charges of carrying out genocidal actions, and second taking recourse to technical issues of nit-picking on the basis of procedural and juridical arguments.

Further, Israel made a strong appeal that this Court not grant any of the provisional (emergency) measures like ordering an end to military operations, that the South Africans had made a case for, on the grounds that the Palestinian people were in mortal danger, unless a cease fire commenced.

Israel was unable to convincingly refute South Africa’s evidence that had established the killing, displacements, blocking aid, the physical and mental trauma by Israel. This is because Israel could not refute the numbers killed, of which the majority were children and women, or the number displaced, and other facts laid out by South Africa.

Israel’s basic refutations in this first substantive section included:

• The context was only since October 7 and not earlier since 1948, as South Africa made out. So in effect Israel denied the ‘slow genocide’ and race based (apartheid) policies of years.
• Israel showed that Hamas was purely a terrorist militant organisation, with the intention of wiping out the Jewish people and Israel and therefore needed to be eliminated to ensure the security of Israel.
• Israel stated they were acting only in self-defence and they had a right to defend its own citizens and itself as a sovereign nation. (As if Palestinians in Gaza are not their own citizens.)
• That Israel was taking the greatest precautions to limit and mitigate civilian casualties and therefore asking Gazans (nicely) to evict.
• That Hamas was the one causing casualties since they always shelter, are embedded and operate under human shields, and whatever casualties these are inevitable in urban warfare, especially because Hamas was hiding in homes, schools, mosques, and hospitals.
• This was an armed conflict between them and Hamas, so an internal matter, where casualties and infrastructure damage results and not constitute a genocide.
• That South Africa hardly paid attention to the issue of hostages, and South Africa was very ‘close’ to Hamas and almost a military wing of Hamas.
• The genocide was against Israel and not the other way round, since Israel is a victim of Hamas terror.
• South Africa is de-legitimising Israel’s existence.
• Israel is carrying out its war strictly under international norms of war taking care of minimising civilian casualties.
• Israel had robust democratic institutions that could take on all issues. Including investigating some comments made that South Africa had used to show intent.

On the case of proving intent, which is a critical part of the proving genocide and a technical necessity in the Genocide Convention, South Africa had referenced the huge number of statements from many Israeli officials from the prime minister to others.

Israel stated that these statements were merely ‘rhetoric’ because Israelis were traumatised and angry, that Israeli babies had been killed, and any official statement could only come from the war cabinet, which was the duly constituted body.

No other statement cited by South Africa was relevant to the case. This was also a weak argument by Israel, given that everyone heard these repeated statements by Israeli government members.

Where Israeli team scored some points were on the technical matters:

• Israel argued that for a case to come to the ICJ there has to be a dispute between the parties to this case. South Africa had hastily shown that there was a dispute between them and Israel on this issue of genocide and that South Africa had written to Israel but received no response. Israel denied this and said they were willing to negotiate with South Africa. However, Israel did not reference that Palestine and Gaza genocide was the real case and put its weight instead, behind this technicality.
• Israel argued that intent had not been established because South Africa only cited rhetorical statements by non-official representatives.
• That this was an armed conflict between Hamas and Israel that led to casualties and Hamas was not party to these proceedings.
• Israel argued therefore that this case was unfit to be brought to this Court at all.
• So Israel stated that this case does not come under the jurisdiction of the ICJ.

Israel made a strong appeal that the provisional measures that South Africa asked for like stopping military operations, unblocking aid channels, allowing humanitarian assistance, allowing independent observers and fact finding terms etc. be rejected.

The reasons Israel gave for rejecting these provisional or emergency measures included:

• Asking Israel to cease military operations (or cease fire) would leave Israel defenceless against a lethal enemy.
• Would give Hamas an undue and one sided advantage.
• Would impede the search for hostages.
• Would impede the war against terrorism and Israel would suffer unilaterally.
• That Israel is providing aid and humanitarian assistance to the Palestinians.

Israel therefore appealed against the grant of any protective measures by the ICJ and asked the ICJ to reject this Case.

So, it is clear, Israel put a sophisticated case for its usual policies of an occupying colonial state. It indulged in victim blaming.

It wanted to reverse victimhood back to itself, as it has historically used. Further, even as the hearing was ongoing in the ICJ, Israel continued its bombings and several people in Gaza were killed and injured. Israel and its supporters continued to be in denial and made yet another case for impunity.

So, what next? The 15 judges of the ICJ, plus 2 judges – representing Israel and Palestine, will make a decision on two counts. One if they want to grant any provisional measures- like a cease fire. And second, whether this case will be admitted is to be decided on its merits.

It is clear to the ordinary observer that the moral, political, ethical victory in this case is with South Africa and Palestine. But as we know, justice and morality are not the only criteria in these grand courts where often technicalities prevail.

The hegemonic side knows how to use technicalities in its favour. So no one can predict the outcome of the case, and what this interim judgement will be.

What is abundantly clear is that Israel has, for the first time, been held accountable. It knows its days of impunity are over. Israel’s reputation is in shreds. It can no longer claim permanent victimhood.

It cannot equate criminal allegations about its behaviour as anti-Semitism. Palestine continues to suffer but its cause is back on the world’s agenda. Something will have to give in their cause. The moral victor is South Africa. And the Global South, international civil society must support this cause.

Anuradha Chenoy is Associate Fellow of the Transnational Institute (The Netherlands).

Cover Photograph Al Jazeera