Tal Becker, legal
advisor to Israel’s ministry of foreign affairs opened Israel’s response
against South Africa’s case before the International Court of Justice on 12
January. He argued that South Africa’s accusation of genocide was a libel
intended to deny Israel the right to self-defence and that accepting it would
undermine the Genocide Convention.

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Madam
President, distinguished Members of the Court, it is an honour to appear before
you again on behalf of the State of Israel. The State of Israel is singularly
aware of why the Genocide Convention, which has been invoked in these
proceedings, was adopted. Seared in our collective memory is the systematic
murder of six million Jews as part of a pre-meditated and heinous programme for
their total annihilation.

Given the
Jewish people’s history and its foundational texts, it is not surprising that
Israel was among the first States to ratify the Genocide Convention, without
reservation, and to incorporate its provisions in its domestic legislation. For
some, the promise of “Never Again” for all peoples is a slogan; for
Israel, it is the highest moral obligation.

Raphael
Lemkin, a Polish Jew, who witnessed the unspeakable horrors of the Holocaust,
is credited with coining the term genocide. He helped the world recognise that
the existing legal lexicon was simply inadequate to capture the devastating
evil that the Nazi Holocaust unleashed.

The
Applicant has now sought to invoke this term in the context of Israel’s conduct
in a war it did not start and did not want. A war in which Israel is defending
itself against Hamas, Palestinian Islamic Jihad and other terrorist organisations
whose brutality knows no bounds.

WATCH | Israel accuses SA of ‘vilifying and demonising’ its right to self-defence

But, as
this Court has already made clear, the Genocide Convention was not designed to
address the brutal impact of intensive hostilities on the civilian population,
even when the use of force raises “very serious issues of international
law” and involves “enormous suffering” and “continuing loss
of life”. The Convention was set apart to address a malevolent crime of
the most exceptional severity.

We live at
a time when words are cheap. In an age of social media and identity politics,
the temptation to reach for the most outrageous term, to vilify and demonise,
has become for many irresistible. But if there is a place where words should
still matter, where truth should still matter, it is surely a court of law.

The
Applicant has regrettably put before the Court a profoundly distorted factual
and legal picture. The entirety of its case hinges on a deliberately curated, decontextualised
and manipulative description of the reality of current hostilities.

South
Africa purports to come to this Court in the lofty position of a guardian of
the interest of humanity. But in delegitimising Israel’s 75-year existence in
its opening presentation yesterday, that broad commitment to humanity rang
hollow. And in its sweeping counterfactual description of the
Israeli-Palestinian conflict, it seemed to erase both Jewish history and any
Palestinian agency or responsibility. Indeed, the delegitimisation of Israel
since its very establishment in 1948 in the Applicant’s submissions, sounded
barely distinguishable from Hamas’ own rejectionist rhetoric.

It is
unsurprising, therefore, that, in the Applicant’s telling, both Hamas’
responsibility for the situation in Gaza and the very humanity of its Israeli
victims are removed from view.

READ | ‘This is not a genocide’: Israel accuses SA of misrepresenting war in Gaza – and defaming it

The attempt
to weaponise 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.

Madam
President, Members of the Court, on Saturday, 7 October, a Jewish religious
holiday, thousands of Hamas and other militants breached Israeli sovereign
territory by sea, land and air, invading over 20 Israeli communities, bases and
the site of a music festival. What proceeded, under the cover of thousands of
rockets fired indiscriminately into Israel, was the wholesale massacre,
mutilation, rape and abduction of as many citizens as the terrorists could find
before Israel’s forces repelled them. Openly displaying elation, they tortured
children in front of parents, and parents in front of children, burned people,
including infants, alive, and systematically raped and mutilated scores of
women, men and children. All told, some 1 200 people were butchered that day,
more than 5 500 maimed, and some 240 hostages abducted, including infants,
entire families, persons with disabilities and Holocaust survivors, some of
whom have since been executed; many of whom have been tortured, sexually abused
and starved in captivity. Representatives of the hostages’ families are in this
courtroom today and we acknowledge their presence and their boundless
suffering.

We know of
the brutality of 7 October not only from the harrowing testimonies of the
survivors, the unmistakable proof of carnage and sadism left behind, and the
forensic evidence taken at the scene. We know it because the assailants proudly
filmed and broadcast their barbarism.

The events
of that day are all but ignored in the Applicant’s submissions. But we are
compelled to share with the Court some fraction of its horror – the
largest calculated mass murder of Jews in a single day since the Holocaust.

We do so
not because these acts – however sadistic and systematic – release
Israel of its obligations to uphold the law as it defends its citizens and
territory. That is unquestionable. We do so because it is impossible to
understand the armed conflict in Gaza, without appreciating the nature of the
threat that Israel is facing, and the brutality and lawlessness of the armed
force confronting it.

In the
volume of materials submitted to Members of the Court, access has been provided
to a portion of the raw footage for separate screening. But I am obliged to put
before the Court today some small fragment of the scenes of unfathomable
cruelty that took place in hundreds of locations on that horrible day.

READ | SA rejects Israel’s claims it’s acting as the ‘legal arm’ of Hamas

Johnny
Siman Tov, a wheat farmer, and his wife Tamar, an activist for women’s rights,
lived in Kibbutz Nir Oz. When the rocket fire started, they hid in the safe
room with their four-year-old son, Omer, and their six-year-old twins, Arbel
and Shachar. During their rampage, Hamas militants set fire to their house.
Johnny texted his sister Ranae: “They’re here. They’re burning us. We’re
suffocating.” The whole family was burned alive, to ashes, making DNA
identification especially difficult.

A survivor
of the Nova music festival massacre testified to police to witnessing a Hamas
militant brutally raping a young woman, as another militant cut off her breast
and toyed with it. A second militant then raped her again, shooting her in the
head while still inside her.

In one
video recorded by a home surveillance system, a Hamas militant throws a grenade
into a safe room, where a father and his two sons have rushed to hide. The
father is killed; the two sons are injured and bleeding as a militant pulls
them into the living room. One child can be heard screaming to his brother: “Why
am I alive? I can’t see anything. They’re going to kill us.” The militant
casually opens the fridge, takes out a bottle and drinks.

And then
there is this recording from kibbutz Mefalsim.

READ | SA has ‘close’ ties with Hamas, says Israel as it slams genocide case as malevolent, false

As stated,
none of these atrocities absolve Israel of its obligations under the law. But
they do enable the Court to appreciate three core aspects of the present
proceedings, which the Applicant has obscured from view.

First, that
if there have been acts that may be characterised as genocidal, then they have
been perpetrated against Israel. If there is a concern about the obligations of
States under the Genocide Convention, then it is in relation to their
responsibilities to act against Hamas’ proudly declared agenda of annihilation,
which is not a secret and is not in doubt.

The
annihilationist language of Hamas’ charter is repeated regularly by its
leaders, with the goal, in the words of one member of Hamas’ political bureau,
of the “cleansing of Palestine of the filth of the Jews”. It is
expressed no less chillingly in the words of senior Hamas member, Ghazi Hamad,
to Lebanese television on 24 October 2023, who refers to the 7 October attacks,
what Hamas calls the “Al Aqsa Flood”, as follows. In the continuation
of this interview, Hamad is asked: “Does that mean the annihilation of
Israel?” “Yes, of course”, he says, “the existence of Israel is
illogical”; and then he says: “Nobody should blame us for the things we
do. On October 7, October 10, October 1 000 0000 – everything we do
is justified.” Given that on 7 October, before any military response by
Israel, South Africa issued an official statement blaming Israel for “the
recent conflagration” – essentially blaming Israel for the murder of
its own citizens – one wonders whether the Applicant agrees.

Second, it
is in response to the slaughter of 7 October – which Hamas openly vows to
repeat – and to the ongoing attacks against it from Gaza, that Israel has
the inherent right to take all legitimate measures to defend its citizens and
secure the release of the hostages. This right is also not in doubt. It has
been acknowledged by States across the world.

READ | IN FULL: Professor Vaughan Lowe tells ICJ genocide can never be justified

Astonishingly,
the Court has been requested to indicate a provisional measure calling on
Israel to suspend its military operations. But this amounts to an attempt to
deny Israel its ability to meet its obligations to the defence of its citizens,
to the hostages and to over 110 000 internally displaced Israelis unable to
safely return to their homes.

The
Applicant in its submissions to the Court makes almost no mention of the
ongoing humanitarian suffering of Israel’s citizens at the hands of
Hamas and treats the hostages still held in captivity as barely an
afterthought. But is there a reason these people on your screen are unworthy of
protection?

Hamas is
not a party to these proceedings. The Applicant, by its request, seeks to
thwart Israel’s inherent right to defend itself – to let Hamas not just
get away with its murder, literally, but render Israel defenceless as Hamas
continues to commit it.

Yesterday,
counsel for the Applicant made the astonishing claim that Israel was denied
this right and, as a matter of fact, should not be able to protect itself from Hamas’
attacks. But allow me to draw attention to these words written by Professor
Vaughan Lowe: “The source of the attack, whether a state or non-state
actor, is irrelevant to the existence of the right” to defence. “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”. Israel agrees with these
words, as I suspect would any sovereign State.

READ | IN FULL: Professor Max du Plessis SC on the rights of the Palestinian people

If the
claim of the Applicant now is that in the armed conflict between Israel and
Hamas, Israel must be denied the ability to defend its citizens – then the
absurd upshot of South Africa’s argument is this: 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 organisation that pursues an
actual genocidal agenda. An organisation that has violated every past ceasefire
and used it to rearm and plan new atrocities. An organisation that declares its
unequivocal resolve to advance its genocidal plans. That is an unconscionable
request and it is respectfully submitted that it cannot stand.

Third, the
Court is informed of the events of 7 October 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. These relations have continued unabated even after the 7
October atrocities. South Africa has long hosted and celebrated its ties with
Hamas figures, including a senior Hamas delegation that – incredibly
– visited the country for a “solidarity gathering” just weeks
after the massacre.

In
justifying instituting these 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 de-legitimization of Israel’s existence; end its support for Hamas;
and use its influence with this organisation so that Hamas permanently ends its
campaign of genocidal terror and releases the hostages.

READ | IN FULL: Advocate Tembeka Ngcukaitobi addresses Israel’s genocidal intent at the ICJ

Madam
President, Members of the Court, the hostilities between Israel and Hamas have
exacted a terrible toll on both Israelis and Palestinians. But any genuine
effort to understand the cause of this toll must take account of the horrendous
reality created by Hamas within the Gaza Strip.

When Israel
withdrew all its soldiers and civilians from Gaza in 2005, it left a coastal
area with the potential to become a political and economic success story. Hamas’
violent take-over in 2007 changed all that. Over the past 16 years of its rule,
Hamas has smuggled countless weapons into Gaza, and has diverted billions in
international aid, not to build schools, hospitals or shelters to protect its
population from the dangers of the attacks it launched against Israel over many
years, but rather to turn massive swathes of the civilian infrastructure into
perhaps the most sophisticated terrorist stronghold in the history of urban
warfare.

Remarkably,
counsel for the Applicant described the suffering in Gaza as “unparalleled
and unprecedented”, as if they are unaware of the utter devastation
wrought in wars that have raged just in recent years around the world. Sadly,
the civilian suffering in warfare is not unique to Gaza. What is actually “unparalleled
and unprecedented” is the degree to which Hamas has entrenched itself
within the civilian population, and made Palestinian civilian suffering an
integral part of its strategy.

Hamas has
systematically and unlawfully embedded its military operations, militants and
assets throughout Gaza within and beneath densely populated civilian areas. It
has built an extensive warren of underground tunnels for its leaders and
fighters, several hundred miles in length, throughout the Strip, with thousands
of access points and terrorist hubs located in homes, mosques, United Nations
facilities, schools and perhaps most shockingly hospitals.

READ | IN FULL: Ambassador Vusi Madonsela’s opening and closing submissions to the ICJ

This is not
an occasional tactic. It is an integrated, pre-planned, extensive and abhorrent
method of warfare. Purposely and methodically murdering civilians. Firing
rockets indiscriminately. Systematically using civilians, sensitive sites and
civilian objects as shields. Stealing and hoarding humanitarian supplies
– allowing those under its control to suffer, so that it can fuel its
fighters and terrorist campaign.

The
appalling suffering of civilians – both Israeli and Palestinian – is
first and foremost the result of this despicable strategy; the horrible cost of
Hamas not only failing to protect its civilians but actively sacrificing them
for its own propaganda and military benefit. And if Hamas abandons this
strategy, releases the hostages and lays down its arms, the hostilities and
suffering would end.

Madam
President, Members of the Court, there are many distortions in the Applicant’s
submission to the Court, but as shall be demonstrated by counsel, there is one
that overshadows them all. In the Applicant’s telling, it is almost as if there
is no intensive armed conflict taking place between two parties at all, no
grave threat to Israel and its citizens, only an Israeli assault on Gaza.

The Court
is told of widespread damage to buildings, but it is not told, for example, how
many thousands of those buildings were destroyed because they were
booby-trapped by Hamas, how many became legitimate targets because of the
strategy of using civilian objects and protected sites for military purposes,
how many buildings were struck by over 2 000 indiscriminate terrorist rockets
that misfired and landed in Gaza itself.

The Court
is told of over 23 000 casualties, as the Applicant repeats; as many have,
unverified statistics provided by Hamas itself – hardly a reliable source.
Every civilian casualty in this conflict is a human tragedy that demands our
compassion. But the Court is not told how many thousands of casualties are in
fact militants, how many were killed by Hamas fire, how many were civilians
taking direct part in hostilities, and just how many are the result of
legitimate and proportionate use of force against military targets, even if tragic.

And the
Court is also told of the dire humanitarian situation in Gaza, but it is not
told of Hamas’ practice of stealing and hoarding aid, it is not told of the
extensive Israeli efforts to mitigate civilian harm, of the humanitarian
initiatives being undertaken to enable the flow of supplies and provide medical
attention to the wounded.

The
Applicant purports to describe the reality in Gaza. But it is as if Hamas, and
its total contempt for civilian life, just do not exist as a direct cause of
that reality. Hamas is widely estimated to have over 30,000 fighters and is
known to bring minors no older than 15 or 16 into its ranks. They are coming
for us. But, in South Africa’s telling, they have all but disappeared. There
are no explosives in mosques and schools and children’s bedrooms, no ambulances
used to transport fighters, no tunnels and terrorist hubs under sensitive
sites, no fighters dressed as civilians, no commandeering of aid trucks, no
firing from civilian homes, United Nations facilities and even safe zones. There
is only Israel acting in Gaza.

The
Applicant is essentially asking the Court to substitute the lens of armed
conflict between a State and a lawless terrorist organisation, with the lens of
a so-called genocide of a State against a civilian population. But it is not
offering the Court a lens, it is offering it a blindfold.

Madam
President, Members of the Court, the nightmarish environment created by Hamas
has been concealed by the Applicant, but it is the environment in which Israel
is compelled to operate. Israel is committed, as it must be, to comply with the
law, but it does so in the face of Hamas’ utter contempt for the law. It is
committed, as it must be, to demonstrate humanity, but it does so in the face
of Hamas’ utter inhumanity.

As will be
presented by counsel, these commitments are a matter of express government
policy, military directives and procedures. They are also an expression of Israel’s
core values. And, as shall also be shown, they are matched by genuine measures
on the ground to mitigate civilian harm under the unprecedented and
excruciating conditions of warfare created by Hamas.

It is
plainly inconceivable – under the terms set by this very Court – that
a State conducting itself in this way, in these circumstances, may be said to
be engaged in genocide, not even prima facie.

The key
component of genocide – the intention to destroy a people in whole or in
part – is totally lacking. What Israel seeks by operating in Gaza is not
to destroy a people, but to protect a people, its people, who are under attack
on multiple fronts, and to do so in accordance with the law, even as it faces a
heartless enemy determined to use that very commitment against it.

As will be
detailed by counsel, Israel’s lawful aims in Gaza have been clearly and
repeatedly articulated by its Prime Minister, its Defence Minister, and all
members of the War Cabinet. As the Prime Minister reiterated yet again this
week: “Israel is fighting Hamas terrorists, not the civilian population.”

Israel aims
to ensure that Gaza can never again be used as a launch pad for terrorism. As
the Prime Minister reaffirms, Israel seeks neither to permanently occupy Gaza
or to displace its civilian population. It wants to create a better future for
Israelis and Palestinians alike, where both can live in peace, thrive and
prosper, and where the Palestinian people have all the power to govern
themselves, but not the capacity to threaten Israel.

If there is
a threat to that vision – if there is a humanitarian threat to the
Palestinian civilians of Gaza – it stems primarily from the fact that they
have lived under the control of a genocidal terrorist organisation that has
total disregard for their life and well-being. That organisation, Hamas, and
its sponsors, seek to deny Israel, Palestinians and Arab States across the
region, the ability to advance a common future of peace, co-existence,
security, and prosperity. Israel is in a war of defence against Hamas
– not against the Palestinian people – to ensure that they do not
succeed.

In these
circumstances, there can hardly be a charge more false and more malevolent than
the allegation against Israel of genocide.

The
Applicant has, regrettably, engaged in a transparent attempt to abuse the Convention’s
compulsory jurisdiction mechanism, and in particular the provisional measures
phase of proceedings, to bring under the purview of the Court matters over
which, in truth, it lacks jurisdiction.

Madam
President, Members of the Court, the Genocide Convention was a solemn promise
made to the Jewish people, and to all peoples, of “never again”. The
Applicant, in effect, invites the Court to betray that promise. If the term “genocide”
can be so diminished in the way that it advocates, if provisional measures can
be triggered in the way that it suggests, the Convention becomes an aggressor’s
charter. It will reward, indeed encourage, the terrorists who hide behind
civilians, at the expense of the States seeking to defend against them.

To maintain
the integrity of the Genocide Convention, to maintain its promise, and the Court’s
own role as its guardian, it is respectfully submitted that the Application and
Request should be dismissed for what they are – a libel, designed to deny
Israel the right to defend itself according to the law from the unprecedented
terrorist onslaught it continues to face, and to free the 136 hostages Hamas
still holds.

I thank you
for your kind attention. May I ask, Madam President, that you call Professor
Shaw to the podium.

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