Above photo: Barrister Malcolm Shaw arguing for Israel before the World Court on Friday. UN TV Screenshot.
A barrister for Israel argued that Israeli prime minister and cabinet members’ statements of intent to commit genocide were mere “random assertions.”
And he instead accused South Africa of complicity in genocide.
In its defense against allegations by South Africa that it is committing genocide in Gaza, a British barrister arguing at the World Court on Friday for Israel downplayed numerous statements by senior Israeli officials of genocidal intent against Palestinians as mere “random assertions” that prove nothing.
Instead, the barrister turned the tables, accusing South Africa itself of complicity in genocide.
Kings Counselor Malcolm Shaw, for Israel, told the Court on the second day of a two-day hearing:
“As far as acts are concerned in this case, there is 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.”
Without proving intent, Shaw argued, a genocide case is impossible. “It is like Hamlet without the prince, a car without an engine,” he said. As Shaw himself pointed out, lawyers for South Africa on Thursday thus “placed considerable emphasis upon intent.”
They laid out in great detail the “genocidal rhetoric” of Israeli officials and how it has influenced Israeli soldiers and airmen attacking Gaza. Prime Minister Benjamin Netanyahu twice referred to an Old Testament genocide implying the same was needed for Gaza, argued attorney Tembeka Ngcukaitobi.
“The genocidal invocation to Amalek was anything but idle,” Ngcukaitobi said. He then showed a video of Israeli soldiers singing in celebration of a victory in Gaza, in which they mention Amalek.
On Oct. 9, Defense Minister, Yoav Gallant, Ngcukaitobi, went on:
“gave a situation update to the Army where he said that as Israel was imposing a complete siege on Gaza, there would be ‘no electricity, no food, no water, no fuel,’ everything would be closed because Israel is fighting human animals. Speaking to troops on the Gaza border, he instructed them that he has released all the restraints and that Gaza won’t return to what it was before.
‘We will eliminate everything. We will reach all places. Eliminate everything there, reach all places without any restraints.’
Heritage Minister Amichai Eliyahu said that Israel must find ways for Gazans that are more painful than death. It is no answer to say that neither are in command of the army. They are ministers in the Israeli government. They vote in the Knesset and are in a position to shape state policy. The intent to destroy Gaza has been nurtured at the highest levels of state. …
Senior political and military officials encouraged without censure, the 95 year old Israeli army reservist Ezra Yachin, a veteran of the Deir Yassin massacre against the Palestinians in 1948, to speak to the soldiers ahead of the ground invasion in Gaza. In his talk, he echoed the same sentiment while being driven around in an official Israeli army vehicle dressed in Israeli army fatigue.
‘I quote the triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live. If you have an Arab neighbor, don’t wait. Go to his home and shoot him. We want to invade. Not like before. We want to enter and destroy what’s in front of us and destroy houses.’”
These are some of what Shaw dismissed on Friday as “random assertions.” The barrister said that only Israel’s ministerial committee on national security and the war cabinet can make decisions on policy and intent in Gaza. “To produce random quotes that are not in conformity with government policy is misleading at best,” he said.
However, both Netanyahu and Gallant, whose “genocidal” statements were quoted by the South African lawyers, are members of the war cabinet. Minister of National Security Itamar Ben-Gvir and Finance Minister Bezalel Smotrich are on the national security committee, and both have made numerous statements about Palestinians that can be construed as genocidal in intent.
Shaw only mentioned the South Africans quoting the heritage minister who is not on either committee and ignored reference to those ministers who are.
And in response to South Africa on Thursday linking ministers’ “genocidal” statements to that of Israeli combatants, Shaw said “remarks or actions of a soldier do not and cannot reflect policy.”
Shaw contended that Israel’s intent is not genocide but to “deal with Hamas” in response to its Oct. 7 attack on Israel, which he called itself “genocidal.” He said: “The truth is that if there has been any genocidal activity in this situation, it was the events of seventh of October.”
Shaw ridiculed South Africa’s argument on Thursday of the need for historical context to place Hamas’ Oct. 7 attack in a 75-year history of Israeli dispossession and abuses of Palestinians.
Shaw asked why not go back to the 1922 decision of the League of Nations to create the British mandate in Palestine, or the 1917 Balfour Declaration that demonstrated Britain’s intent to create a Jewish homeland in Palestine or even to mention the Israelite tribes in there 3,000 years ago?
Israel Turns Tables, Accuses South Africa Of ‘Complicity’ With Genocide
Shaw went further, alleging that indeed “complicity in genocide is in play” in the case. But he was not referring to the United States, Britain, Germany or any other ally of Israel that continues to supply weapons, ammunition, funding and two U.S. carrier groups in the region to deter any nation that dares intervene to stop Israel’s slaughter, as the U.S. did against Yemen on Thursday.
No, Shaw was referring to “states that supported, condoned, praised or glorified the events of the seventh of October both at the time, and later” who he said “stand guilty of a violation of Article 3e of the Convention as being complicit in genocide and indeed of the duty to prevent genocide under Article 1.”
And then Shaw said: “South Africa has given succor and support to Hamas, at the least.”
Tal Becker, a legal adviser to the Israeli Foreign Ministry who addressed the court before Shaw, told the Court that “on October 7th, before any military response by Israel, South Africa issued an official statement blaming Israel for, quote, the recent conflagration.”
Becker then leveled his accusation that South Africa was complicit with a genocidal organization. He said:
“The absurd upshot of South Africa’s argument is under the guise of the allegation against Israel of genocide, this court is asked to call for an end to operations against the ongoing attacks of an organization that pursues an actual genocidal agenda.
That is an unconscionable request and it is respectfully submitted that it cannot stand. … The court is informed of the events of October 7th, because if there are any provisional measures that should appropriately be indicated here, they are indeed with respect to South Africa. It is a matter of public record that South Africa enjoys close relations with Hamas, despite its formal recognition as a terrorist organization by numerous states across the world.
South Africa has long hosted and celebrated its ties with Hamas figures, including a senior Hamas delegation that incredibly visited the country for, quote, solidarity just weeks after the massacre. In justifying instituting proceedings, South Africa makes much of its obligations under the Genocide Convention. It seems fitting, then, that it be instructed to comply with those obligations itself to end its own language of delegitimization, of Israel’s existence and its support for Hamas.”
Becker then blamed South Africa for “weaponizing” genocide. He said:
“The attempt to weaponize the term genocide against Israel in the present context does more than tell the court a grossly distorted story. And it does more than empty the word of its unique force and special meaning. It subverts the object and purpose of the convention itself with ramifications for all states seeking to defend themselves against those who demonstrate total disdain for life and for the law.”
For good measure, Becker threw in this deceptive remark about Hamas, referring to “Hamas’s violent takeover in 2007.” Hamas was elected in 2006. It later fought against Fatah to essentially defend its election, but it is false to say Hamas took over Gaza violently.
In a similarly deceptive manner, lawyers for Israel tried to explain away the destruction of nearly half the buildings of Gaza in the past three months as resulting from Hamas booby-traps and its errant rockets.
Israel’s ‘Warnings’
Shaw claimed that Israel warns civilians of impending attack through the “unprecedented and extensive use” of telephone calls and leafletting. Typically these calls give residents ten minutes to leave their buildings before they are bombed. The leaflets told residents of northern Gaza to move south where they were then bombed enroute and repeatedly in the south once they arrived there.
But Shaw argued that these warnings, coupled with Israel’s “facilitation” of humanitarian aid all “demonstrate the precise opposite of any possible genocidal intent” by Israel.
The U.N. has repeatedly complained that Israel is severely restricting the amount of aid being allowed into Gaza compared to 500 trucks a day before its military operation began on Oct. 7. Gallants statement that there would be “‘no electricity, no food, no water, no fuel,” flies in the face of a contention that Israeli is “facilitating” humanitarian aid.
Malcolm argued that the World Court did not have jurisdiction to hear South Africa’s case because South Africa did not establish that there was a dispute between two states. Shaw said that South Africa did not wait for a reply to its note verbal before launching the case against it at the ICJ on Dec. 29.
The jurisdiction for any question of war crimes needed to be in Israel, Shaw said. If in the course of its action against Hamas Israel overstepped the laws of war it would “tackled at the appropriate time” by Israel’s “robust legal system,” he said.
Israel’s ‘Right To Self Defense’
Both Shaw and Becker sought to twist the argument of British barrister Vaughn Lowe, who on Thursday argued before the court that based on a past World Court ruling Israel had no right to self-defense on the occupied territory of Palestine.
He did not say they had no right to defend itself on Israeli territory. But this is what Shaw and Becker implied. Becker quoted from Lowe’s writing:
“The source of the attack, whether a state or non-state actor, is irrelevant to the existence of the right to defense force may be used to avert a threat because no one and no state is obliged by law passively to suffer the delivery of an attack.”
Neither Shaw nor Becker addressed the heart of the matter upon which the World Court had ruled, namely that Israel had no right to self-defense on a territory it occupies.
Lowe on Thursday referred to the 2004 World Court decision against the legality of Israel’s wall, which is built on occupied Palestinian territory.
“In its advisory opinion on the wall case, the court noted that the threat that Israel had argued justified the construction of the wall was not imputed to a foreign state, but emanated from the occupied Palestinian territory over which Israel itself exercises control,” Lowe said.
“For those reasons, the court decided, as a matter of international law, the right of self-defense under Article 51 of the charter, the U.N. Charter, had no relevance in such circumstances,” he said.
Just three weeks ago the U.N. Security Council reaffirmed that Gaza is occupied territory, he said. “The tightness of its grip may have varied, but no one can doubt the continuous reality of Israel’s grip on Gaza,” Lowe said.
“The court’s legal holding from 2004 holds good, and a similar point is to be made here what Israel is doing in Gaza, it is doing in territory under its own control. Its actions are enforcing its occupation. The law on self-defense under Article 51 of the U.N. Charter has no application,” he said.
Future of the Case
At this stage, the World Court is only considering whether there is a plausible case that Israel is committing genocide and whether it should then order Israel to cease its military operation until at a much later date the court decides the charge of genocide on the merits.
Given Israel’s history and that of its principal ally of ignoring World Court decisions against them that Israel would adhere to an order to stop the killing. The case could be taken up by the U.N. Security Council to enforce it through sanctions, and even military action, but the U.S. holds a veto on the council.