Israel possesses the right to self-defense

Hearings are currently underway at the International Court of Justice (ICJ) in The Hague, where the State of Israel stands accused of genocide. The lawsuit was filed by South Africa, which contends that Israel's actions against Palestinians in Gaza constitute a violation of the Genocide Convention.

Established in 1945, the ICJ serves as the principal judicial organ of the United Nations. The Court's mandate is to resolve legal disputes between sovereign states in accordance with international law and to provide advisory opinions on legal questions referred to it by the UN Security Council and the UN General Assembly. Nations that have signed the Genocide Convention have thereby submitted to the jurisdiction of the ICJ.

While ICJ rulings are legally binding, in practice, certain states choose to disregard them. In March 2022, the Court ordered Russia to immediately suspend its military operations in Ukraine and to ensure that any military or irregular armed units directed or supported by it take no steps in furtherance of the military operations. As is widely known, this ruling was ignored without any formal justification.

(The ICJ should not be confused with the International Criminal Court (ICC), which is also located in The Hague but commenced operations only in 2002. Operating under the Rome Statute, the ICC prosecutes individuals for crimes against humanity. It is this court that has issued an arrest warrant for Vladimir Putin.)

Defining Genocide and South Africa's Involvement

The Genocide Convention, adopted in 1948 and entering into force in 1951, defines genocide as follows: "Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

• (a) Killing members of the group;

• (b) Causing serious bodily or mental harm to members of the group;

• (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

• (d) Imposing measures intended to prevent births within the group;

• (e) Forcibly transferring children of the group to another group."

Israel appeared before the Court to defend itself, fully cognizant of the highly politicized nature of UN bodies, the near-automatic passage of anti-Israel resolutions, and the fact that several ICJ judges represent nations with long-standing, overtly hostile stances toward Israel.

South Africa's motivations are readily apparent and driven primarily by interests foreign to the welfare of Gazan Palestinians: namely, aligning closer with Iran—now a pivotal economic and political ally of South Africa—and attempting to secure the domestic Muslim vote for the ruling parliamentary coalition ahead of the upcoming elections.

Israel's legal defense team is led by Malcolm Shaw, an eminent British-Israeli jurist and Professor at the University of Leicester. A world-renowned expert in international law, Shaw has previously represented various sovereign states before the ICJ, including the UAE and Ukraine.

The defense must demonstrate that Israel’s military campaign conforms with international law, adhering to the parameters dictated by combat operations against a terrorist organization in a densely populated urban area. Furthermore, the defense must convince the Court that the military operations target Hamas terrorists rather than the general civilian population of the Gaza Strip. They must also argue that unlawful public statements made by certain Israeli officials (such as Jerusalem Affairs and Heritage Minister Amichai Eliyahu, who suggested dropping a nuclear bomb on Gaza but subsequently retracted, claiming it was a metaphor to highlight the need for maximum effort to combat terror and secure the release of hostages) do not reflect official policy or military strategy, and cannot be interpreted as practice or intent to commit genocide.

An Alliance of Adversaries

Israel’s designated ad hoc judge on the panel is Aharon Barak, former President of the Supreme Court of Israel, a jurist of global renown, and a symbol of the Israeli judicial system. Notably, the decision to appoint him was made by Prime Minister Benjamin Netanyahu himself, despite the fact that Barak’s judicial activism, broad interpretation of individual rights and freedoms, and expansion of Supreme Court authority (the so-called "Barak constitutional revolution") had been primary targets of criticism by the architects and supporters of the judicial reform promoted by the ruling coalition prior to the war.

According to South Africa’s application, Israel has failed since October 7, 2023, to prevent genocide, failed to prosecute direct and public incitement to genocide, and has engaged, is engaging, and risks further engaging in genocidal acts against Palestinians in Gaza. South Africa asserts that Israel's conduct in Gaza constitutes a breach of its obligations under the Convention, noting also a failure to hold senior officials and others accountable for direct and public incitement.

The application requests the indication of provisional measures, including an immediate suspension of Israeli military operations in Gaza. South Africa contends that the devastation inflicted by Israel's military campaign since October 7 is "genocidal in character, as it is intended to bring about the destruction of a substantial part of the Palestinian national, racial, and ethnic group" within the Gaza Strip. To substantiate genocidal intent, South Africa points to the severity of the military operations in Gaza as well as public statements made by Israeli officials.

Omissions by the Applicant

The opening day of the hearings laid bare the approach of South Africa—a nation that is hardly a beacon of democratic values. While Pretoria paid lip service to condemning the October 7 massacre, in which over 1,200 Israelis were slaughtered, key "minor details" were omitted from its legal application. The submission selectively ignores Hamas—the de facto governing authority in the Gaza Strip committed to the total destruction of Israel, which initiated the aggression, subjected Israelis to torture and sexual violence, continues to hold Israeli hostages denied any access by humanitarian organizations, and routinely deploys the civilian population of Gaza as human shields. These documented acts constitute egregious violations of the laws of war.

When South Africa’s representatives listed military target sites—hospitals, schools, private residences, kindergartens, and mosques—they omitted to mention that these locations became legitimate military targets under international law due to their exploitation by Hamas for combatants, weapons storage, or operational infrastructure. The applicant's attempt to erase Hamas from the legal narrative reveals that, in order to construct its case, it had to radically distort the factual record.

Furthermore, South Africa's application argues that Israel lacks the right to self-defense against a non-state aggressor. This thesis was previously reviewed and systematically rejected by the Supreme Court of Israel under Aharon Barak, which legally established that Israel possesses the inherent right to defend itself against terrorist organizations that operate in total defiance of international law. Hamas is officially designated as a terrorist organization by a vast majority of democratic nations.

Thus, a rigorous examination of the proceedings in The Hague allows for substantive, rather than merely emotional, analysis. As noted, South Africa's accusations against Israel are of a moral-historical character, with focus placed almost exclusively on the suffering of the Palestinian population.

The Reason for the Delayed Ground Offensive

Israel's legal team effectively demonstrated to the judges that they had been misled. The factual assertions presented by South Africa regarding food and fuel entering Gaza, measures to warn civilians of strikes, and urgent directives to evacuate combat zones were characterized as "at best, inaccurate."

Israeli counsel presented fundamental jurisdictional arguments showing that the Court lacks the authority to adjudicate South Africa's claims due to the absence of a prior dispute, and that the applicant fails to recognize Israel's right to self-defense. They also presented evidence of the atrocities committed by Hamas on October 7, without asserting that these crimes justify any violations of international law by the defending state.

The defense detailed the extensive measures undertaken by the military to mitigate civilian harm, including the establishment of field hospitals, the facilitation of humanitarian aid, the creation of safe corridors, and the delivery of neonatal incubators to hospitals. Ground operations within hospital complexes are conducted with precision to avoid aerial bombardment, and strikes are executed only after sufficient time has been allowed for civilian evacuation.

Israel's representative posed a rhetorical question to the Court: "Would the Israeli authorities delay the start of a ground operation by several weeks and expend massive resources to advise Gazan residents where, when, and how to evacuate... if their intent were to destroy the Palestinian population?"

Many observers overlooked a highly significant development.

Germany intervened in the legal proceedings, exercising its right as a third party to submit observations on the construction and application of the Genocide Convention.

The ICJ is expected to issue its ruling on the request for provisional measures within several weeks.

It must be acknowledged that ICJ judges often rule in alignment with the geopolitical stances of their respective home governments. If the case proceeds on its merits, the Court will conduct full public hearings before rendering a final, legally binding judgment.