Loading your search results


Peace and Conflict

ICJ hears first arguments in “genocide” case, as war cabinet discusses new hostage proposal | Update 11th January 2024

ICJ hears first arguments in “genocide” case, as war cabinet discusses new hostage proposal via BICom

ICJ: The International Court of Justice (ICJ) in The Hague will today hear arguments alleging that Israel has violated the Genocide Convention, to which it is a signatory.

  • The hearings are a result of an urgent appeal, lodged by South Africa, designed to have the court force Israel to “immediately suspend” its military operations in Gaza.
  • The hearings will focus on the request to issue a provisional order against Israel, while Israel’s arguments will be heard tomorrow. 
  • South Africa’s application alleges that Israel has violated several articles of the Convention on the Prevention and Punishment of the Crime of Genocide during the war, including committing genocide, incitement to genocide, attempted genocide, and failure to punish incitement to genocide.
  • The president of the court is Judge Joan Donoghue from the United States. Other judges are from France, Germany, Australia, India, Slovakia, Jamaica, Japan, Brazil, Russia, China, Morocco, Somalia, Lebanon and Uganda.
  • Both South Africa and Israel have sent judges who were nominated as ad hoc members of the panel. Israel’s judge will be former Supreme Court president Aharon Barak. Israel’s principle legal representative in the court will be British attorney Malcom Shaw.
  • Isaac Herzog yesterday dismissed the case as “atrocious” and “preposterous.” Visiting US Secretary of State Antony Blinken said in Tel Aviv on Tuesday that the charge of genocide brought by South Africa in the ICJ is “meritless,” and called it “particularly galling” because “Hamas, Hezbollah, the Houthis and their supporter Iran continue to openly call for the annihilation of Israel and the mass murder of Jews.”
  • US State Department spokesman Matt Miller also said in a statement that “allegations that Israel is committing genocide are unfounded. In fact, it is those who are violently attacking Israel who continue to openly call for the annihilation of Israel and the mass murder of Jews… Genocide is one of the most heinous acts any entity or individual can commit, and such allegations should only be made with the greatest of care. Israel has the right to defend itself against Hamas’ terrorist acts — acts that Hamas has vowed to repeat again and again until Israel is completely destroyed. Israel is operating in an exceptionally challenging environment in Gaza, an urban battlespace where Hamas intentionally embeds itself with and hides behind civilians.”

Hostages: After a delegation of the hostages’ families returned from Qatar, a new Qatari proposal for a deal was put to Israel which the war cabinet discussed.

  • Mossad Director David Barnea, who recently spoke with the Qatari prime minister, shared that information with the security cabinet. The deal reportedly calls for the release of all the hostages in a number of stages, in exchange for the IDF’s complete withdrawal from the Gaza Strip and the exile of the Hamas leaders.
  • Israeli officials told Kan Radio that it was their understanding that the Qatari proposal, had not been coordinated with the Hamas leadership.
  • Hamas leader Ismail Haniya in Qatar said that Israel will never get its hostages back unless it releases all the prisoners who are in jail, which also appears to be Yahya Sinwar’s position.
  • President Joe Biden sent his envoy Brett McGurk, who played a major role in reaching the last hostage deal, to Qatar.
  • Minister Benny Gantz said yesterday: “The most urgent thing is the hostages’ return. That has priority over any course of action in the fighting. If there are any hostages who are watching us now, it is important that you know—we are doing everything for you to return to your loved ones, who have never stopped fighting for you. There is no channel that they are not working on, there is no path that they haven’t trod for this to happen. Be strong.”
  • IDF Spokesperson Rear Admiral Daniel Hagari said the army had located a tunnel in Khan Yunis in which hostages had been held. “The troops located a tunnel in which hostages were held in harsh difficult conditions below ground. We brought international correspondents into them today for them to reveal to the world the crimes that Hamas commits against humanity. The hostages are the supreme effort. In the past too, there were quite a few operations that we did not report [to rescue them]. There were also operations that we stopped.”

Jerusalem/West Bank: The police and Shin Bet announced that they had arrested two individuals suspected of belonging to ISIS and of planning to carry out an attack against security forces. The two were allegedly planning to make explosive devices, inspired by videos published by the Islamic State which they watched online. The suspects, aged 21 and 23, are residents of Jabel Mukaber in East Jerusalem. The police said they found paedophilia material on one of the individual's mobile phones, initiating an investigation into the matter.

Context: The South African case rests on the large number of Palestinian deaths in Gaza, its allegations that food, water, and medical care available to the Gazan population has been restricted, and statements by Israeli government ministers about Palestinians in Gaza it alleges amount to incitement to genocide.

  • Israeli Justice Ministry officials believe there is a real chance the ICJ will agree to South Africa's demands and will issue some kind of injunction against Israel.
  • At the same time, it is not expected to call for a cease-fire in the Gaza Strip,
  • The court can also instruct Israel to allow humanitarian aid in the Strip, to establish an independent inquiry, or to allow displaced Palestinians to return to northern Gaza.
  • Such provisional instructions do not rely on the court concluding that the case brought has been proven, only that it is plausible. The bar to establish plausibility of genocidal actions is much lower than a final definitive determination.
  • Prime Minister Netanyahu, meanwhile, made it clear yesterday that “Israel has no intention of permanently occupying Gaza or displacing its civilian population. Israel is fighting Hamas terrorists, not the Palestinian population. And we’re doing so in full compliance with international law.”
  • Senior Israeli officials reiterated yesterday that any proposal to free the hostages that includes a demand to end the war and to withdraw IDF troops as a precondition for negotiations is unacceptable and would not be given positive consideration. Yahya Sinwar does also not appear to be prepared to go into exile.
  • The mediators hold their talks with Hamas’s political leadership, which is not based in the Gaza Strip. That leadership is headed by Ismail Haniya, who lives in Qatar. The degree of influence he has over Sinwar is uncertain.
  • Hamas’s overseas leadership did not formally respond to the idea of exiling Hamas’s [Gaza] leadership, but did say that Yahya Sinwar and his brother Muhammad and Mohammed Deif and Marwan Issa would “scornfully dismiss the idea of leaving the Gaza Strip.”
  • The United States has been exerting massive pressure on Qatar to advance a deal: one channel with Qatar is being run by CIA Director William Burns, whereas Biden personally dispatched his envoy Bret McGurk. An Israeli delegation is also scheduled to leave for Cairo in the next few days to continue the talks.
  • Hamas had previously rejected similar proposals and had insisted that any release of Israeli hostages must be met with the release of Palestinian prisoners.

Looking ahead: Initial ICJ rulings are expected in the next few weeks with a final ruling likely to take years.

  • Israel is due to approve in the next few days the entry of 400 trucks carrying humanitarian aid into Gaza every day, instead of the 200 that enter today. Reports suggest that a promise was made to US Secretary of State Antony Blinken in meetings in Israel yesterday that this number would increase further.
  • Amos Hochstein will meet with officials in Beirut later “in an effort to advance discussions to restore calm” along the border between Lebanon and Israel. A US National Security Council spokesperson said: “The United States has made clear it does not support the ongoing conflict spreading into Lebanon and continues to exhaust all diplomatic options to see Israeli and Lebanese civilians return to their homes and live in security and stability.”

via BICom