Professor Malcolm Shaw told the International Court of Justice that South Africa’s case was misleading and should be rejected on the basis of law and precedent, while Israel’s response to the 7 October attack by Hamas did not constitute genocide. 

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Prima facie jurisdiction and the preservation of the rights of the parties

Madam President and Members of the Court, it is a great honour to appear before you again and a privilege to appear on behalf of the State of Israel. It is my task today to address the issues falling within the general categories of prima facie jurisdiction and the preservation of alleged rights sought to be protected. However, I would like, first, to make a preliminary comment about the key question of context, which constitutes the framework for the consideration of this request for the grant of provisional measures.

The context

South Africa casts its net widely. In its Application it uses the word “context” many times. In particular, it declares that: “it is important to place the acts of genocide in the broader context of Israel’s conduct towards [the] Palestinians during its 75-year-long apartheid”. Leaving aside the outrageous nature of that statement, why stop at 75 years? Why not refer to 1922 and the approval by the Council of the League of Nations of the British Mandate? Or 1917, the proclamation of the Balfour Declaration? Maybe also include the entry into the land of Israel of the Israelite tribes some 3 500 years ago?

No, the immediate and proximate context for the specific allegations of genocide claimed by South Africa lies in the events of 7 October, when Hamas militants and other armed groups and individuals stormed into the internationally recognized sovereign territory of Israel and committed acts of barely credible atrocity. It was these events that truly constitute the real context for South Africa’s allegations. Indeed, such acts may be seen as the real genocide in this situation.

As the President of the European Commission put it on 19 October:

“There was no limit to the blood Hamas terrorists wanted to spill. They went home by home. They burned people alive. They mutilated children and even babies. Why? Because they were Jews. Because they were living in the State of Israel. And Hamas’ explicit goal is to eradicate Jewish life from the Holy Land. These terrorists, supported by their friends in Tehran, will never stop. And so, Israel has the right to defend itself in line with humanitarian law.”

Of course, these atrocities do not justify violations of the law in reply, still less genocide. But they do justify – mandate, even –the exercise of the legitimate and inherent right of a State to defend itself, as enshrined in the United Nations Charter and under customary international law, to put an end to the continuing attacks against it and to prevent them from succeeding. A threat that has been made explicitly by Hamas, and repeated, and it is thus real and imminent.

This context is critical for it shows that the true nature of the situation as it has unfolded particularly since 7 October is that of an armed conflict. A heavily armed militia and its allies precipitated egregious hostilities and the consequences lie everywhere. The point is this. Armed conflict, even when fully justified and conducted lawfully, is brutal and costs lives, particularly when the militia in question specifically targets civilians and civilian facilities and when it is patently unconcerned about causing civilian casualties on its own side. The conflict is also regulated by law. The rules and principles of international humanitarian law under the Hague Regulations, the Geneva Conventions of 1949 and customary international law. These are well developed and applicable and are fully respected by Israel.

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Such rules cover permitted activities under international humanitarian law, where civilian damage and loss – always to be regretted – are caused in the legitimate pursuit of military objectives through to the violations of the law, being grave breaches of the Geneva Conventions and up to war crimes and crimes against humanity. However, the only category before this Court is genocide. Not every conflict is genocidal. The crime of genocide in international law, and under the Genocide Convention and international law, is a uniquely malicious manifestation. It stands alone amongst the violations of international law as the epitome and zenith of evil. It has been described correctly as the “crime of crimes”, the ultimate in wickedness.

Indeed, the Court itself emphasised in its Order of 2 June 1999 that the threat or use of force cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention, and particularly instanced bombings as lacking the element of intent in the circumstances.

To put it another way, if claims of genocide were to become the common currency of armed conflict, whenever and wherever that occurred, the essence of this crime would be diluted and lost.

I turn now to the question of the prima facie jurisdiction of the Court in the matter before us.

Prima facie jurisdiction

(i) The existence of a dispute under the Convention

Article IX of the Genocide Convention, to which both States are parties without reservation, makes the Court’s jurisdiction conditional on the existence of a dispute relating to the interpretation, application or fulfilment of the Convention and the relevant date for determining the existence of such a dispute is the date on which the application is submitted to the Court.

Whether or not a dispute in these terms exists at the time of the filing of the Application is a matter for objective determination by the Court, “it is a matter of substance, and not a question of form or procedure”. The Court will “take into account in particular any statements or documents exchanged between the Parties as well as any exchanges made in multilateral settings”, the Court has said. The key point here is the use of the term “exchange” between the parties. Unilateral assertion does not suffice. There needs to be some element of engagement between the parties. The element of interchange and bilateral interaction is required. A dispute is a reciprocal phenomenon. This point has been consistently noted by the Court.

For example, the Court reaffirmed in the Myanmar case, the view that it had expressed earlier that in order for a dispute in the sense of Article IX of the Convention to exist, “[i]t must be shown that the claim of one party is positively opposed by the other”.

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The Court further referred in the Marshall Islands cases to the need that the Respondent should not “be deprived of the opportunity to react before the institution of proceedings to the claim made against its own conduct”. Where a State makes an assertion concerning the conduct of another State, it must thus give the latter a reasonable opportunity to respond before resorting to litigation. Particularly in a matter of such severity as an accusation of genocide and particularly before a court of this standing. And it behooves that State to provide supporting evidence of some credibility.

Here, South Africa cites only a couple of general public statements by Israel referencing merely a press report by Reuters and a publicity release from the Israeli Ministry of Foreign Affairs. These responses were not addressed directly or even indirectly to South Africa. There is no evidence of “positive opposition” as required by the Court.

Further, South Africa cites no relevant exchange between the Parties, which would be the normal fashion for the expression and determination of a dispute between States. This actually typifies how South Africa has approached this matter. It seems to believe that it does not take two to tango. It is sufficient if one State determines there is a dispute, leaving the other party flummoxed.

Professor Dugard explains that South Africa had voiced its concerns in the Security Council and in public statements, and had further referred the matter to the International Criminal Court. At that point, he says, it became clear there was a serious dispute between the two States. The Court has emphasised that in the case of statements made by one State in a multilateral forum, the Court must give particular attention, inter alia, to the content of a party’s statement and to the identity of the intended addressees, in order to determine whether that statement, together with any reaction thereto, shows that the parties before it held “clearly opposite views”. South Africa’s actions were insufficient.

Indeed, in the Marshall Islands cases, the Court referring specifically to a statement made at a conference noted that it did not call for a specific reaction by the United Kingdom and thus “no opposition of views can be inferred from the absence of any such reaction”. Specific reaction.

It is thus disingenuous for Professor Dugard to conclude that “Israel must have been aware from South Africa’s public statements, démarche and referral to the International Criminal Court of Israel’s genocidal acts that a dispute existed between the two States”. This is not a dispute, it is a “unispute” – a one-sided clapping of hands. Professor Dugard perhaps tries to retrieve the situation by declaring that “special considerations” apply to the existence of disputes concerning Article IX of the Genocide Convention, without telling us what those conditions could possibly be.

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We come now to the rather bizarre story of the exchange of Notes Verbales. Professor Dugard would have us believe that such exchanges are merely a matter of courtesy of little real consequence. This is not the normal understanding of such Notes and their importance in international relations. But he says this for a reason as we shall see.

South Africa instituted proceedings against Israel on 29 December 2023. In its long recital, the Application notes that on 21 December, South Africa sent a Note Verbale to Israel raising its concerns about genocide in Gaza. The Application further states that “Israel has not responded directly to South Africa’s Note Verbale”. This is incorrect. Israel did indeed respond that very day, informing South Africa that the Note Verbale “has been forwarded to capital” and that a response was expected shortly. South Africa confirmed the next day that it had received the message. On 26 December, the Director General of Israel’s Ministry of Foreign Affairs proposed to his counterpart in the Department of International Relations and Cooperation of South Africa – by text – to schedule a meeting “at his earliest convenience in order to discuss the issues raised”.

On 27 December, the Embassy sent to South Africa by email a Note Verbale suggesting a meeting of respective Directors General at the earliest convenience in order to discuss the issues raised. An attempt by the Embassy to hand deliver the Note was refused due to a national holiday and the South African Department of International Relations specifically advised the Embassy on 28 December to hand deliver the Note on 2 January. The Application was instituted on 29 December.

This was an attempt by the State of Israel in good faith to open a dialogue and discuss South Africa’s concerns. However, not only was this ignored at the relevant time, but South Africa proceeded to institute proceedings the following day and declared in its Application that no reply had been received to its Note Verbale, which was patently not the case.

Perhaps realising the effect of this, South Africa with some haste sent a Note Verbale on 4 January 2024 which essentially just repeated the contents of the Note of 21 December, but it explained the following day in a letter to the Registrar that the Israeli Note had not been received by the appropriate team. Israel has proof of receipt. It also stated that “the dispute is plainly not capable of resolution by way of a bilateral meeting”. Nevertheless, it suggested to hold a meeting the next morning. Israel replied the next morning, expressing surprise that South Africa had instituted proceedings without taking up the sincerely made offer to hold consultations and conveying its wish for discussions to be held following the close of these oral hearings. South Africa in a Note dated 10 January – summarily and surprisingly in the circumstances – said there was no point in such a meeting. Curious indeed.

South Africa decided unilaterally that a dispute existed, irrespective of Israel’s conciliatory and friendly response, since repeated. Perhaps had South Africa taken up this offer at the time proffered as a result of its own Note, the Parties may have decided there was no dispute as such to place before the Court under the Genocide Convention and that South Africa’s expressed concerns over the genocide allegation would have been assuaged. We may never know. South Africa’s precipitate institution of proceeding foreclosed that option.

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It is a point worth underlining. South Africa did not give Israel a reasonable opportunity to engage with it on the matters under consideration before filing its no doubt long-prepared Application. One wonders whether South Africa at the very last moment suddenly realised that it needed to show the existence of a dispute under the terms of the Genocide Convention and proceeded to hastily formulate and dispatch a flurry of Notes.

The Court can grant orders for provisional measures only where the provisions relied upon by the Applicant “appear, prima facie, to afford a basis on which its jurisdiction could be founded”, although it need not satisfy in itself, in a definitive manner, that it has jurisdiction as regards the merits of the case.

(ii) A prima facie case

It is not an easy matter to determine whether a prima facie case exists. It rests between full proof and complete absence of proof and is intended to ensure that the Court functions effectively and efficiently. But there has to be something tangible in terms of the provisions in question. The provisional measures procedure is a complex instrument in that the Court has to decide upon the basis of certain assumptions which may or may not be disproved at a later stage of the proceedings. This is particularly difficult in such an egregious matter as an allegation of genocide, where the standard of proof at the merits stage is high, the Court having made it clear that, “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive”. That is not the case, of course, at the provisional measures stage but it is also not negligible.

The Court is asked to grant in this case a number of measures that, in effect, assume that the Party in question is committing genocide, as Mr Staker will show later this morning. Mud is thrown at a stage before conclusive proof and it may stick even if the accusation is comprehensively disproved at the merits phase as we expect. A serious political and security price may be paid by the grantee of such measures, even though it may later be shown to be completely unwarranted. This must surely require that the Court acts with caution and understanding, particularly in evaluating the components of the allegation in law. Provisional measures are intended to constitute a shield and not a sword. To preserve not undermine rights.

(iii) Intent

We have shown that one element of Article IX, that of the need to demonstrate the existence of a dispute as understood by the Court in the light of its case law, is lacking. The second element concerns the question as to whether the acts complained of by the applicant can be seen as falling within the provisions of the Convention. The Court has noted that only at the merits stage can it be determined whether the provisions in question of the Convention have been violated. To accomplish this, the necessary specific “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” has to be proved. However, this cannot be read as a complete rejection of consideration of the intent criterion for current purposes. The Court in the Myanmar case noted that a finding of violations at the merits stage “notably depends” on the existence of intent. “Notably”, not exclusively.

Myanmar is not a ruling that intent is irrelevant in a consideration of prima facie jurisdiction. It is a ruling that a conclusion as to whether or not violations have actually occurred is a matter for the merits which “notably depends” on an assessment of intent. This clearly leaves open the possibility that intent is indeed a factor in determining prima facie jurisdiction in provisional measures proceedings. This also comports with the logic of the situation.

The “acts” element of the definition of genocide are listed in Article II and for present purposes there is no need to go through them. The issue is this. What determines the existence of the crime of genocide is the intention to destroy, in whole or in part, a particular group, as such. That is what distinguishes genocide from other international law crimes, such as war crimes or crimes against humanity. To consider the acts alone as listed in Article II, with no reference at all to the intent criterion, is thus to denude the crime of its very essence: Hamlet without the Prince; a car without an engine.

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We are at the provisional measures phase of this case. South Africa does not have to prove that genocidal acts have been or are being committed, but it does have to show that the Genocide Convention is in play. After all, this Court has no jurisdiction to consider any other alleged crimes, however serious. We are only concerned with genocide. It is indeed a difficult balance for the Court.

The Court has stated that what is required at this stage is “to establish whether the acts complained of… are capable of falling within the provisions of the Genocide Convention”. But “the acts complained of” may only be capable of falling within the provisions of the Genocide Convention if the intent is present, otherwise such acts cannot constitute genocide. The factor of intent colours the whole question of Article II acts. In other words, that there is prima facie evidence that the acts that may fall within the Convention, necessarily importing the intent element, have been established as such.

South Africa accepts the need to demonstrate intent. It referred to the concept of specific intent in its Application both generally and in the specific context of its discussion of the Court’s prima facie jurisdiction in provisional measures proceedings. Indeed, South Africa placed a considerable emphasis upon intent in its pleadings yesterday by Ms Hassim. Mr Ngcukaitobi devoted his whole pleading to this requirement.

As far as the 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. The intention, faced with the 7 October atrocities and the continuing rocket fire and incarceration of the hostages, on the part of Israel to act in order to defend itself so as to terminate the threats against it and to rescue the hostages, certainly exists. The intent to deal with the armed militants of Hamas and the other such groups is undeniable. Were it the case – which we deny – that Israeli forces have transgressed some of the rules of conflict, then the matter would be tackled at the appropriate time by Israel’s robust and independent legal system.

But that is not the intent to destroy all or part of a people as such. Israel’s actions in restricting its targeting practices to attack military personnel or objectives in accordance with international humanitarian law in a proportionate manner in each case, as well as its practice of mitigating civilian harm – such as by forewarning civilians of impending action by the unprecedented and extensive use of telephone calls, leafletting and so forth – coupled with the facilitation of humanitarian assistance, all demonstrate the precise opposite of any possible genocidal intent.

South Africa, in seeking to discover the necessary intent, presents a distorted picture. It misunderstands the nature and provenance of certain comments made by some Israeli politicians. Let me try and explain the big picture.

Israel possesses a clear and effective structure of authority with regard to governmental decision. The war against Hamas is managed on behalf of the Government by two central organs: the Ministerial Committee on National Security Affairs and the “War Cabinet”, the latter established for the purpose of managing the war by the former. These bodies make the relevant decisions regarding the war’s conduct and according to Israeli law, the decisions of the Government and its committees obligate the ministers of the Government in accordance with the principle of collective responsibility. It is the collective decisions of these bodies which are the binding provisions in question. The Prime Minister stands at the head of these organs, decides on the agenda of their meetings, steers their activity and summarises the meetings and the instructions issued therein.

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To make it clear, in order to determine the policy and intentions of the Government of Israel, it is necessary to examine the decisions of the Ministerial Committee on National Security Affairs and the War Cabinet, and to examine whether the particular comments expressed conform, or not, with the policies and decisions made. Thus, to produce random quotes that are not in conformity with government policy is described as misleading at best. Such as the statement by the Minister of Heritage, for example, who is completely outside the policy- and decision-making processes in the war. In any event, his statement was immediately repudiated by members of the War Cabinet and other ministers, including the Prime Minister.

In tab 1A of the volume which Israel has submitted to the Court, one may find numerous excerpts from internal cabinet decisions that attest to Israel’s true intent throughout this war. For example, one finds the instructions from the Prime Minister in a meeting of the Ministerial Committee on National Security Affairs, from 29 October, stating the following:

(i)  “The Prime Minister stated time and again . . . we must prevent a humanitarian disaster”.

(ii)  “The Prime Minister indicated the possible sorts of solutions that will ensure required supply of water, food and medicine: increasing the amount of trucks entering, [with] the necessary inspections”.

(iii)  “[P]romoting the construction of field hospitals in the south of the Gaza Strip”.

To re-emphasise, this is a directive to authorities. Nothing less. Tab 1A contains a considerable number of similar directives, emphasising the need to avoid harm to civilians and to facilitate humanitarian aid. Genocidal intent?

Let me turn to the Israel Defense Forces (IDF). This, like every army, is a hierarchical body that operates by way of orders from superiors and is headed by the Chief of the General Staff. Remarks or actions of a soldier do not and cannot reflect policy. In tab 1B, one may find a daily operational directive – which I understand is repeated day by day – issued by the Operations Directorate of the IDF, stating that “[a]ttacks will be solely directed towards military targets, while adhering to the principles of distinction, proportionality and the obligation taking precautions in attacks in order to reduce collateral damage”.

This is a directive that binds all IDF forces. It continues by stating that “the laws of armed conflict allow destruction to civilian property only when there is a military necessity to do so, and prohibit harm to property for deterrence purposes only or for the purpose of punishment (individual or collective)”. It emphasises that it “is necessary to treat enemy civilians with respect, they should not be treated in a humiliating manner and civilians should not be used for the purpose of performing activities that might put them under risk to their life or their body”. This is a mandatory instruction effective since the start of the war. Tab 1B contains many similar provisions, which are themselves only an illustration of many other such directives, orders and procedures.

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Further on 28 October, the Prime Minister publicly declared that “the IDF is doing everything possible to avoid harming those not involved”, while on 18 November, he declared that “first of all, and above all else, Israel acts according to the laws of war. This is how our army works.”

The Minister of Defence publicly stated on 29 October that “we are not fighting the Palestinian multitude and the Palestinian people in Gaza” and declared on 13 November that “[o]ur war is against the Hamas terrorist organization, not the people of Gaza”. Again, the President of Israel declared on 12 October that “we are working, operating militarily according to rules of international law. Period. Unequivocally.” We have collated numerous such statements by the President, by the Prime Minister, by the Minister of Defence, by the IDF spokesperson and others in tab 2 of our volume.

Since this is such a critical part of South Africa’s thesis, permit me to refer to two further statements by the Prime Minister. I start with the most recent:

(i) 10 January:

“Israel has no intention of permanently occupying Gaza or displacing its civilian population.

Israel is fighting Hamas terrorists, not the Palestinian population, and we are doing so in full compliance with international law.

The IDF is doing its utmost to minimize civilian casualties, while Hamas is doing its utmost to maximize them by using Palestinian civilians as human shields.

The IDF urges Palestinian civilians to leave war zones by disseminating leaflets, making phone calls, providing safe passage corridors, while Hamas prevents Palestinians from leaving at gunpoint and often, with gunfire.

Our goal is to rid Gaza of Hamas terrorists and free our hostages. Once this is achieved Gaza can be demilitarized and deradicalized, thereby creating a possibility for a better future for Israel and Palestinians alike.”

(ii) On 23 November, Prime Minister Netanyahu declared that:

“Any civilian death is a tragedy. Any one. And to avoid them, what you do is first, you try to get the civilians out of harm’s way. And that’s exactly what we did.”

There are many more of the same. Any careful review of the official and binding policy decisions made by the relevant authorities in Israel since the outbreak of the war clearly evidence that such decisions lack any genocidal intent. The contrary is true: they are indicative of the consistent and relentless commitment of Israeli relevant authorities to mitigate civilian harm and alleviate civilian suffering in Gaza.

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Some of the comments to which South Africa refers are clearly rhetorical, made in the immediate aftermath of an event which severely traumatised Israel, but which cannot be seen as demanding genocide. They express anguish and the necessity to restore control over Israel’s own territory under severe threat and safety to its citizens. As Judge Tomka has noted, sometimes statements are made which are “nothing more than a part of the recent war-time rhetoric intending to put the blame and shame on the other side”. Not to be totally ignored, but not to be ascribed an importance which belies how and when they were made, nor of legal significance.

Let me refer to one further matter of some biblical moment. Yesterday, the Applicant referred time and again to two Statements by the Israeli Prime Minister where he said: “Remember what Amalek did to you”, and attached great importance to it as part of the argument that Israel has demonstrated a genocidal intent. There is no need here for a theological discussion on the meaning of Amalek in Judaism, which was indeed not understood by the Applicant. Let me just turn to the Prime Minister’s statement of 28 October, which was partially and misleadingly quoted yesterday. He said:

“We are now entering the second phase of the war, which its objectives are clear: destruction of the military and governmental capabilities of Hamas and the return of the hostages back home . . . In the last couple of days, I have met with our soldiers in the bases, in the field, in the north and in the south. Remember what Amalek has done to you. We remember, and we are fighting. In front of our brave and hero soldiers there is one prior mission: to defeat the murderous enemy and secure our existence in our land . . . The IDF is the most moral army in the world, the IDF does everything to avoid harming the uninvolved . . .”

Tab 3 lists and addresses additional examples of misleading quotes by the Applicant regarding Israel’s policy.

It is thus our conclusion that South Africa has failed to demonstrate the prima facie jurisdiction of the Court. I turn to the next issue.

III. The rights whose protection is sought

As the Court has noted, its power to grant provisional measures “has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits”. At the provisional measures stage, the Court does not need to determine that such rights do actually exist in a definitive manner, but it must establish that such rights are plausible. South Africa yesterday dealt with this rather lightly.

We can safely say that plausibility is an elusive concept. Simply declaring that claimed rights are plausible is insufficient. The issue was addressed by Judge Greenwood in the Border Area case, when he emphasised that “[w]hat is required is something more than assertion but less than proof; in other words, the party must show that there is at least a reasonable possibility that the right it claims exists as a matter of law and will be adjudged to apply to that party’s case”. He later discussed this in terms of a reasonable prospect of success.

What is clear is that the Court has sought to tie plausibility to particular treaty provisions or to general rules of international law. The Court has also considered claims of fact in this context as well as law, such as the finding as to whether Equatorial Guinea plausibly used the building at 42 avenue Foch for diplomatic purposes. In this case, the Court did not limit itself to considering whether the Applicant plausibly held the rights in question under international law but extended the field of enquiry to include consideration as to whether it was plausible that the Respondent had breached the rights in question.

This approach appears also in Ukraine v. Russia where the Court concluded that “on the basis of the evidence presented . . . by the Parties, it appears that some of the acts complained of by Ukraine fulfil this condition of plausibility”. In other words, the Court was prepared to consider not only the question of the plausibility of rights but also the question of the possible breach of such rights.

Indeed, in the Jadhav case, the Court was prepared to examine evidence as to the existence of asserted rights and whether as a matter of fact the violations had plausibly happened.

The final point to be made in this section of my pleading is simply to underline the obvious point that the Court needs to consider the relevant respective rights of both Parties, Respondent as well as the Applicant. Article 41 of the Statute provides that the purpose of the provisional measures is “to preserve the rights of either party”.

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I would note the Court’s Order of 16 March 2022 in Ukraine v. Russia, stating that

“[t]he power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party.”

And further quote the comment in the Myanmar case that “the function of provisional measures . . . is to protect the respective rights of either party pending its final decision”.

This mutual protection or balancing criterion in the light of the rights of both parties is intended to prevent either party being placed in a situation of disadvantage and to ensure that irreparable prejudice will not be caused to either party.

I will look briefly at the relevant rights of both parties here.

(a) The Applicant

As regards the Applicant, I make three simple and brief points. First, South Africa has presented a confusing and a partial recital of the facts. This will be discussed later this morning by Ms Raguan. Secondly, that the appropriate legal framework for this tragic situation is that of international humanitarian law. Thirdly, that Israel’s efforts both to mitigate harm when conducting operations as well as its efforts to alleviate suffering through humanitarian activities have gone relatively unnoticed and dispel or at the very least mitigate against any allegation of genocidal intent.

As from Israel’s withdrawal of its civilian and military presence from Gaza in 2005, which brought an end to its belligerent occupation, and the violent coming to power of Hamas in 2007, a situation of conflict has existed with Hamas firing rockets at Israeli towns and villages unceasingly.

However, the attack on Israel on 7 October was qualitatively different from all that went before. The truth is that if there has been any genocidal activity in this situation, it was the events of 7 October. Acts and intent can and have been adequately demonstrated. But, Hamas, recognised as a terrorist group by at least 41 States, including the United States, the United Kingdom, all members of the European Union, Canada, Australia, Saudi Arabia, Japan and Colombia, is not before the Court. Only South Africa, a third party, that is not involved in the armed conflict appears. Nevertheless, as South Africa has pointed out, complicity in genocide is in play. States that supported, condoned, praised or glorified the events of 7 October – both at the time and later –stand guilty of a violation of Article III (e) of the Convention as being complicit in genocide and indeed of the duty to prevent genocide under Article 1. And as the Agent has pointed out, South Africa has given succour and support to Hamas. At the least.

Clearly of relevance to a discussion of the situation is the facilitation of humanitarian assistance, something that hardly sits well with accusations of genocidal intent. As my colleagues will demonstrate, Israel’s activities in this area need to be addressed and not swept aside as South Africa seeks to do.

(b) The Respondent

Prime amongst the rights of the Respondent that are critical to any legal evaluation of the situation is the inherent right of any State to defend itself. Embedded in customary international law and enshrined in the United Nations Charter, this right afforded to States reaffirms and underlines the responsibility of all States towards their citizens and marks the acceptance by the international community of the political reality and legal confirmation that States, when attacked, may legitimately respond in a forceful and proportionate manner.

Professor Lowe yesterday sought to maintain that Israel has no right to self-defence in this situation. How could anyone possibly argue that Israel could not defend itself, faced with the 7 October atrocities and the incessant attacks against its civilians since? Indeed, a very wide range of States has acknowledged the right of self-defence here, ranging from the United Kingdom to the United States, France, Germany, Italy, Canada, Japan, Ghana and Guatemala and others.

Israel bears the responsibility to exercise its protection over its citizens, not only those constantly subjected to bombardment from Gaza but also, and critically, with regard to those captured and held hostage as a result of the 7 October outrage.

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These rights exist and cannot be disregarded. Of course, Israel does not have any right to violate the law, still less to commit genocide – and indeed it does not – but it does have every right to act to defend itself in accordance with the rules and principles of international law. And so it has done.

A link has to be established between the rights asserted and the provisional measures requested. This issue will be addressed by Mr Staker. He will show that the measures proposed go far beyond the protection of the rights asserted.

IV. Conclusion

Madam President, Members of the Court, this is an important case. Allegations have been made which verge on the outrageous. The attack by Hamas on 7 October, with its deliberate commission of atrocities, clearly falls within the statutory definition of genocide. Israel’s response was and remains legitimate and necessary. It acted and continues to act in a manner consistent with international law. It does so not in an unrestrained manner, but in investing unprecedented efforts in mitigating civilian harm, at cost to its operations, as well as alleviating hardship and suffering, with investment of resources and effort. There is no genocidal intent here. This is no genocide.

South Africa tells us only half the story. Israel is guilty of genocide, we cannot deal with Hamas. Only Israel must be stopped from protecting its citizenry and eliminating the egregious threat that is Hamas. We cannot deal with Hamas. Meanwhile, we must bind the arms of the State of Israel. Hamas is for some other body.

I conclude. First, the core of genocide is intent. Without intent, there can be no genocide in law. That is true for the merits, it is equally true for provisional measures. Any prima facie consideration of intent even at this preliminary stage will only demonstrate its absence from Israel’s activities. Second, there is here no dispute under the Genocide Convention as at the time of submission of the Application as alleged by South Africa and as required for prima facie jurisdiction. Indeed, South Africa’s own precipitate activities with Notes over recent weeks demonstrates the lack of its confidence in this respect. And that is telling. Thirdly, the rights to be protected in the provisional measures procedure cover not just the Applicant but also the Respondent, and chief amongst these rights is that of the right and obligation to act to defend itself and its citizens. This must be considered and weighed by the Court as against the false accusations levelled at Israel.

Madam President, Members of the Court, thank you for your kind attention. I would ask you to call Ms Raguan at your convenience.