Ideas - IDEAS in the Hague: A Question of Genocide

Episode Date: January 19, 2024

Last week, South Africa and Israel were at the International Court of Justice with two starkly opposed versions of the conflict in Gaza: South Africa’s legal team argued Israel’s actions there violate the Genocide Convention. Israel’s lawyers argued it is acting in self-defence. The court must first decide whether to order emergency measures to stop the violence until it considers the bigger question. IDEAS host Nahlah Ayed was in the Hague. This episode features excerpts from the two-day hearings.

Every language is a note in the symphony of our heritage. Together they create a harmony that cannot be silenced. Discover your voice on the new APTN Languages TV channel. This is a CBC Podcast. Welcome to Ideas. I'm Nala Ayyad. The rocket attack from Gaza early this morning was surprising enough.

But then came an attack far more sophisticated than anything the militant group Hamas has ever launched. Squads of heavily armed militants crossed the fortified border around Gaza, attacking army bases. October 7th, 2023 was the deadliest day of violence against Israel since the foundation of the state in 1948. The world was shocked. Israel's response, a war in Gaza against Hamas, with the highest rate of civilian casualties in any 21st century conflict, has also shocked the world.

This is al-Nasasser Hospital in Han Yunis. Its normal capacity, 350 patients, now struggling with a thousand. Every bed full and the floors of its waiting rooms littered with the injured lying on hard ground. The charge raised against Israel by South Africa is that of the most serious crime of all, genocide, the deliberate attempt to annihilate a people. After the Holocaust during the Second World War,

the nations of the world unanimously agreed on a genocide convention. And now such charges are tried by the International Court of Justice, the ICJ, in The Hague. It is this convention that's at the heart of South Africa's complaint. On January 11th and 12th, South Africa and Israel brought what they had to say to the court. The questions are complicated. The atmosphere is charged. The accusation and the response invoke both the history of South Africa, with its legacy of apartheid, and the history of Israel, with the deep wounds of the Holocaust,

the genocide against the Jews. For both sides, this issue is deeply personal, cultural, existential, as it is for all Palestinians and Israelis whose lives have been shaped by a conflict that stretches back more than 75 years. And all of us are also involved. It is a question for all of us, and it's this. In self-defense, how far is too far? Today on Ideas, we're bringing you excerpts from the ICJ hearing, what we think are the most powerful statements on each side of this question.

To begin, representing South Africa, here's human rights lawyer Blina Nihrali. Madam President, members of the court, there is an urgent need for provisional measures to protect Palestinians in Gaza from the irreparable prejudice caused by Israel's violations of the Genocide Convention. The United Nations Secretary General and its chiefs describe the situation in Gaza variously as a crisis of humanity, a living hell, a bloodbath, a situation of utter deepening and unmatched horror, where an entire population is besieged and under attack,

denied access to the essentials for survival on a massive scale. As the United Nations Under-Secretary-General for Humanitarian Affairs stated last Friday, and I quote, Gaza has become a place of death and despair. Families are sleeping in the open as temperatures plummet. Areas where civilians were told to relocate for their safety have come under relentless bombardment. Medical facilities are under relentless bombardment. Medical facilities are under relentless attack. The few hospitals that are partially functional are overwhelmed

with trauma cases, critically short of all supplies and inundated by desperate people seeking safety. A public health disaster is unfolding. Infectious diseases are spreading in overcrowded shelters as sewers spill over. Some 180 women are giving birth daily amidst this chaos. People are facing the highest levels of food insecurity ever recorded. Famine is around the corner. For children in particular, the last 12 weeks have been traumatic. No food, no water, no school, nothing but the terrifying sounds of war day in and day out. Gaza has simply become uninhabitable. Its people are witnessing daily threats to their very existence while the world watches on. End quote. The court has heard of the horrific death toll

and of the more than 7,000 Palestinian men, women and children reported missing, than 7,000 Palestinian men, women and children reported missing, presumed dead or dying slow, excruciating deaths trapped under the rubble. Reports of field executions and torture and ill-treatment are mounting, as are images of decomposing bodies of Palestinian men, women and children left unburied where they were killed, some being picked upon by animals. It is becoming ever clearer that huge swathes of Gaza, entire towns, villages, refugee camps are being wiped from the map. As you have heard but it bears repeating, according to the World Food Programme, four out of five people in the world in famine or a catastrophic type of hunger are in Gaza right now. Indeed, experts warn that deaths from starvation and disease risk significantly outstripping deaths from bombings. The daily statistics stand as clear evidence of the urgency and of the

irreparable prejudice. On the basis of the current figures, on average, 247 Palestinians are being killed and are at risk of being killed each day, many of them literally blown to pieces. They include 48 mothers each day, two every hour, and over 117 children each day, leading UNICEF to call Israel's actions a war on children. On current rates which show no sign of abating, each day, over three medics, two teachers, more than one United Nations employee and more than one journalist will be killed, many while at work or in what appear to be targeted attacks

on their family homes or where they are sheltering. The risk of famine will increase each day. Each day, an average of 629 people will be wounded, some multiple times over, as they move from place to place, desperately seeking sanctuary. Each day, over 10 Palestinian children will have one or both legs amputated, many without anaesthetic.

more mass graves will be dug more cemeteries will be bulldozed and bombed and corpses violently exhumed denying even the dead any dignity or peace each day ambulances, hospitals and medics will continue to be attacked and killed the first responders who have spent three months without international assistance trying to dig families out of the rubble with their bare hands

will continue to be targeted. On current figures, one will be killed almost every second day, sometimes in attacks launched against those attending the scene to rescue the wounded. Each day, yet more desperate people will be forced to relocate from where they are sheltering, or will be bombed in places where they have been told to evacuate to. Entire multi-generational families will be obliterated. And yet more Palestinian children will become WCNSF, Wounded Child, No Surviving Family, the terrible

new acronym born out of Israel's genocidal assault on the Palestinian population in Gaza. There is an urgent need for provisional measures to prevent imminent irreparable prejudice to the rights in issue in this case. There could not be a clearer or more compelling case. In the words of the Commissioner General of the United Nations Relief and Works Agency, there must be an end to the decimation of Gaza and of its people. Turning to the Court's case law, as the Court has recently reaffirmed, and I quote, the condition of urgency is met when acts susceptible of causing irreparable prejudice can occur at any moment before the court makes a final decision on the case, end quote.

That is precisely the situation here. Any of those matters to which I have referred can and are occurring at any moment. United Nations Security Council resolutions demanding, quote, the immediate, safe, unhindered delivery of humanitarian assistance at scale throughout Gaza and full, rapid, safe and unhindered humanitarian access, end quote, remain unimplemented. In Gaza, as you have heard, nearly 2 million people, over 85% of the population, have been repeatedly forced to flee their homes and shelters, not just once or twice, but some three, four or more times over, into shrinking slivers of land where they continue to be bombed and killed. This is a population that Israel had already made vulnerable through 16 years of military blockade and crippling de-development. Today, Israel's hindrances to the import of food and essential items have brought Gaza to the brink of famine with adults, mothers,

fathers, grandparents regularly foregoing food for the day so that children can eat at least something. Medicine shortages and the lack of medical treatment, clean water and electricity are so great that large numbers of Palestinians are dying or are at imminent risk of dying preventable deaths. Cancer and other services have long shut down. Women are undergoing caesarean sections without anaesthetic in barely functioning hospitals described as scenes from a horror movie, with many undergoing otherwise unnecessary hysterectomies in an attempt to save their lives. Canada-Syria torture case, the court made clear that, I quote, individuals subject to torture and other acts of cruel, inhuman or degrading treatment or punishment are at serious risk of

irreparable prejudice. Well, Palestinians in Gaza are also at risk of such irreparable prejudice, with videos of Palestinian boys and men rounded up and stripped and degraded, broadcast to the world, alongside footage of serious bodily harm and accounts of serious mental harm and humiliation. In Qatar, United Arab Emirates, the court considered provisional measures to be justified, having regard to the risk of irreparable prejudice deriving from factors such as people being forced to leave their places of residence without the possibility of return, the psychological distress of temporary or potentially ongoing separation from their families, and the harm associated with students being prevented from taking their exams.

students being prevented from taking their exams. If provisional measures were justified there, how could they not be in Gaza, where countless families have been separated, with some family members evacuating under Israeli military orders and others staying behind at extreme risk to care for the wounded, infirm and the elderly, where husbands, fathers and sons are being rounded up and separated from their families, taken to unknown locations for indeterminate periods of time. In the Qatar case, the court issued a provisional order where harm to approximately 150 students was an issue. where harm to approximately 150 students was an issue.

In Gaza, 625,000 schoolchildren have not attended school for three months, with the United Nations Security Council expressing deep concern, I quote, that the disruption of access to education has a dramatic impact on children and that conflict has lifelong effects on their physical and mental health. Almost 90,000 Palestinian university students cannot attend a university in Gaza. Over 60% of schools, almost all universities and countless bookshops and libraries have been damaged or destroyed, and hundreds of teachers and academics have been killed, including deans of universities and leading Palestinian scholars,

obliterating the very prospects for the future education of Gaza's children and young people. Notably, the court has found provisional measures to be justified in all three cases where they were previously sought in relation to violations of the Genocide Convention. It did so in Bosnia and Serbia in 1993, finding on the basis of evidence that was certainly no more compelling than that presently before the court, that it was sufficient to determine that there was, and I quote, a grave risk of acts of genocide being committed. The court found provisional measures to be justified in the Gambia-Myanmar case

on the basis of a risk of irreparable prejudice to the Rohingya, subject to, quote, mass killings as well as beatings, the destruction of villages and homes, denial of access to food, shelter and other essentials of life. More recently, in indicating provisional measures in Ukraine-Russia, the court considered that Russia's military activities had, quote, resulted in numerous civilian deaths and injuries and caused significant material damage, including the destruction of buildings and infrastructure. The court had regard to the fact that attacks are ongoing and are creating increasingly difficult living conditions

for the civilian population, which it considered to be extremely vulnerable. The court also considered the fact that, I quote again, many persons have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating, and that many were attempting to flee under extremely insecure conditions. This is occurring in Gaza on a much more intensive scale to a besieged, trapped, terrified population that has nowhere safe to go. that has nowhere safe to go. Israel continues to deny that it is responsible for the humanitarian crisis it has created,

even as Gaza starves. The aid it has belatedly begun to allow in is wholly inadequate and does not come anywhere close to the average 500 trucks being permitted daily before October 2023, even under the blockade. Any unilateral undertakings Israel might seek to give about future aid would not remove the risk of irreparable prejudice, not least considering Israel's past and current conduct towards the Palestinian people,

including the 16 years of brutal siege on Gaza. In any event, as the United Nations Secretary General has made absolutely clear, it is a mistake to measure, quote, the effectiveness of the humanitarian operation in Gaza based on the number of trucks allowed in. As he stressed, I quote, the real problem is that the way Israel is conducting this offensive means that the conditions for the effective delivery of humanitarian aid no longer exist. of humanitarian aid no longer exist. That would require security,

staff who can work in safety, logistical capacity and the resumption of commercial activity. It requires electricity and steady communications. All of these remain absent." Indeed, only shortly after Israel opened the Kerem Shalom crossing to Goods in late December 2023, it was struck in a drone attack, killing five Palestinians and leading to another temporary closure. Nowhere and nobody is safe. As the United Nations Secretary General and all its chiefs have made clear,

without a halt to Israel's military operations, crossings, aid convoys and humanitarian workers, like everyone and everything else in Gaza, remain at imminent risk of further irreparable prejudice. remain at imminent risk of further irreparable prejudice. An unprecedented 148 United Nations staff have been killed to date. Without a halt to Israel's military activity in Gaza, there will be no end to the extreme situation facing Palestinian civilians.

Madam President, Members of the court, if the indication of provisional measures was justified on the facts in those cases I have cited, how could it not be here, in a situation of much greater severity, where the imminent risk of irreparable harm is so much greater. How could they not be justified in a situation that humanitarian veterans from crises spanning as far back as the killing fields of Cambodia, people who, in the words of the United Nations Secretary General, have seen everything, if they say it is so utterly unprecedented that they are out of words to describe it. It would be a complete departure from the long and established line of jurisprudence that this court has firmly established and recently reconfirmed for the court not to order provisional measures in this case. not to order provisional measures in this case. The imminent risk of death, harm and destruction that Palestinians in Gaza face today and that

they risk every day during the pendency of these proceedings, on any view justifies, indeed compels, the indication of provisional measures. Some might say that the very reputation of international law, its ability and willingness to bind and to protect all peoples equally, hangs in the balance. But the Genocide Convention is about much more than legal precedent. It is also fundamentally about the confirmation and endorsement of elementary principles of morality. The court recalled the 1946 General Assembly resolution on the crime of genocide, which made clear that, I quote, genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings.

Such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations, end quote. Notwithstanding the Genocide Convention's recognition of the need to rid the world of the odious scourge of genocide, the international community has repeatedly failed. It failed the people of Rwanda, it had failed the Bosnian people and the Rohingya, prompting this court to take action. It failed again by ignoring the early warnings of the grave risk of genocide to the Palestinian people,

sounded by international experts since 19th October of last year. The international community continues to fail the Palestinian people despite the overt dehumanizing genocidal rhetoric by Israeli governmental and military officials matched by the Israeli army's actions on the ground despite the horror of the genocide against the Palestinian people being live-streamed from Gaza to our mobile phones, computers and television screens, the first genocide in history where its victims are broadcasting their own destruction in real time in the desperate, so far vain hope that the world might do something. Gaza represents nothing short of a moral failure,

as described by the usually circumspect International Committee of the Red Cross. As underscored by United Nations chiefs, that failure has, I quote, repercussions not just for the people of Gaza, but for the generations to come who will never forget these over 90 days of hell and assaults on the most basic precepts of humanity. As stated by a United Nations spokesperson in Gaza last week, at the site of a hospital clearly marked with a symbol of the Red Crescent, where five Palestinians, including a five-day-old baby, had just been killed.

The world should be absolutely horrified. The world should be absolutely outraged. There is no safe space in Gaza, and the world should be ashamed. Madam President, members of the court, in conclusion I share with you two photographs. The first is of a whiteboard at a hospital in northern Gaza, one of the many Palestinian hospitals targeted, besieged and bombed by Israel over the course of the past three brutal months. The whiteboard is wiped clean

of no longer possible surgical cases, leaving only a handwritten message by a Médecins Sans Frontières doctor which reads, We did what we could. Remember us. The second photograph is of the same whiteboard after an Israeli strike on the hospital on the 21st of November that killed the author of the message, Dr Mahmoud Abu Nujaila, along with two of his colleagues. along with two of his colleagues.

Just over a month later, in a powerful sermon delivered from a church in Bethlehem on Christmas Day, the same day Israel had killed 250 Palestinians, including at least 86 people, many from the same family, massacred in a single strike on Maghazi refugee camp. Palestinian pastor Mundar Ishak addressed his congregation and the world, and he said, and I quote, Gaza as we know it no longer exists. This is an annihilation.

This is a genocide. We will rise. We will stand up again from the midst of destruction, as we have always done as Palestinians, though this is by far maybe the biggest blow we have received. But he said, no apologies will be accepted after the genocide. What has been done has been done. I want you to look in the mirror and ask, where was I when Gaza was going through a genocide? South Africa is here, before this court, in the Peace Palace. It has done what it could, it is doing what it can by initiating these proceedings, by seeking interim measures against itself as well as against Israel. South Africa now respectfully and humbly calls on this honourable court to do what is in its power to do. to do what is in its power to do,

to indicate the provisional measures that are so urgently required to prevent further irreparable harm to the Palestinian people in Gaza, whose hopes, including for their very survival, are now vested in this court. you're listening to ideas on cbc radio one we're a podcast and we're also heard on u.s public radio across north america on sirius xm in australia on ABC Radio National, and around the world at cbc.ca slash ideas. You can also hear us on the CBC Listen app and wherever you get your podcasts. I'm Nala Ayed. Every language is a note

in the symphony of our heritage. Together they create a harmony that cannot be silenced. Discover your voice on the new

APTN Languages TV channel. Essential reading for everyone. Health for All is the instant number one national bestseller by Jane Philpott, former federal minister of health and Ontario lead on primary care. With over 6 million Canadians lacking basic health care, Philpott offers a prescription for a healthier society focusing on hope, belonging, and purpose. Available in hardcover and audiobook. Narrated by Jane Philpott.

Over two days at The Hague, two narratives stood in stark contrast. A horrific conflict reduced to about six hours. A litany of legal arguments interwoven with stories of indescribable suffering and pain. And looming large just beneath the surface is a history that cannot be ignored. One, a nation created as a refuge from genocide, the other, a people dispossessed and oppressed for generations, and the 75-year conflict between them that just refuses to end. Some of the deeper questions here could have far-ranging implications. Who on the world stage is responsible for stopping violence, and how should it be done?

Can international law help detangle one of the world's most divisive conflicts? And if the answer is yes, then why does that conflict continue still with such vengeance 75 years on? On trial here, really, is the world's apparent impotence at solving conflict, its repeated failures at drawing lines and enforcing them, and the world's power's inability to agree on defining what is unacceptable in an act of war, even as they watch it happen. At the court last week, Israel's lawyers argued its response to Hamas's October 7th attacks has been proportional, that Hamas is culpable in the suffering of its own people. This is Tal Becker, legal advisor to Israel's foreign ministry.

Madam President, distinguished members of the court, the state of Israel is singularly aware of why the Genocide Convention, which has been invoked in these proceedings, was adopted. 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 premeditated and heinous program 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 recognize 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. The civilian suffering in this war, like in all wars, is tragic. It is heartbreaking. The harsh realities of the current hostilities are made especially agonising for civilians, given Hamas's reprehensible strategy of seeking to maximise civilian harm to both Israelis and Palestinians, even as Israel seeks to minimize it. 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, quote, very serious issues of international law

and involves enormous suffering and continuing loss of life, end quote. 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 demonize, 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. 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 delegitimization of Israel, since its very establishment in 1948 in the applicant's submissions, sounded barely distinguishable

from Hamas's own rejectionist rhetoric. It is unsurprising, therefore, that in the applicant's telling, both Hamas's responsibility for the situation in Gaza and the very humanity of its Israeli victims are removed from view. 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, October 7th, 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 October 7th, 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. 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 characterized 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's proudly declared agenda of annihilation, which is not a secret and is not in doubt. The annihilationist language of Hamas's charter is repeated regularly by its leaders, with the goal, in the words of one member of Hamas's political bureau, of the cleansing of Palestine of the filth in the words of one member of Hamas's political bureau,

of the cleansing of Palestine of the filth of the Jews. Second, it is in response to the slaughter of October 7th, 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. 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. 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's attacks. But allow me to draw attention to these words written by Professor Vaughan Lowe. Quote, 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. 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 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 organisation by numerous states across the world. These relations have continued unabated even after the October 7th atrocities. 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's violent takeover 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 swaths 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, UN facilities, schools and perhaps most shockingly hospitals. 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, 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's 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, UN 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. 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 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 wellbeing.

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, coexistence, 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. 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 courts 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.

On Ideas, you've been listening to excerpts from the January 11th and 12th hearings at the International Court of Justice in The Hague. South Africa is asking the court to consider a charge of genocide against Israel in the war taking place in Gaza and requesting an injunction for a halt to the war while the issue is decided. A provisional decision is expected within a few weeks. A final decision could take years. This program was produced by Philip Coulter. Our web producer is Lisa Ayuso.

Technical production, Danielle Duval. Our acting senior producer is Lisa Godfrey. The executive producer of Ideas is Greg Kelly, and I'm Nala Ayyad.