Urgent court order unnecessary as Gaza military campaign is scaled back, Israel tells top UN court

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An urgent court order against Israel might be unnecessary because it is already reducing its military operations and allowing more humanitarian aid into Gaza, an Israeli lawyer has told the International Court of Justice.

The lawyer, Omri Sender, was responding to South Africa’s application for an emergency court order to instruct Israel to halt its military operations and lift its siege of the Palestinian territory.

“The scope and intensity of the hostilities has been decreasing,” Mr. Sender said, quoting Israeli military officials who announced the withdrawal of thousands of soldiers from Gaza.

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He also cited the recent reopening of bakeries in Gaza with humanitarian supplies. And he noted Israel’s assurances to the court that it will comply with international law, including the Genocide Convention. These assurances “may well render the indication of provisional measures unnecessary,” he said, referring to the demand for an emergency order. “The condition of urgency is not as easily met as the applicant would have you believe.”

South Africa alleges that Israel’s actions in Gaza are violations of the Genocide Convention, which was introduced in 1948 in response to the Holocaust. It submitted an 84-page legal brief to the court last month and gave three hours of legal arguments on Thursday at the court in The Hague to seek an interim order against Israel.

Israel’s legal team gave three hours of arguments against the South African application on Friday. At the end of the hearings, court president Joan Donoghue said the court would give its decision “as soon as possible.” Legal experts expect a ruling within the next week or two.

After the latest hearing, senior South African Foreign Ministry official Zane Dangor rejected the Israeli argument that a court order is unnecessary. “The measures that the Israelis outlined today, about de-escalation of the conflict and access of some humanitarian goods into Gaza, have all occurred in the last few days in the run-up to this case. We cannot rely on that as a measure that no further harm will be done to the Palestinians.”

Israel’s lawyers argued on Friday that South Africa has given “succour and support” to Hamas, the Gaza-based militant organization that Canada and other countries have declared to be a terrorist organization. They noted that a senior Hamas delegation had visited South Africa a few weeks after the Oct. 7 attack on southern Israel by Hamas, which killed about 1,200 people and abducted another 240 people by Israel’s count.

Tal Becker, legal adviser to Israel’s Foreign Ministry, said the court should instruct South Africa itself to comply with the Genocide Convention by ending its support for Hamas and using its influence with Hamas to release the hostages and end the Hamas attacks.

Family members of some of the hostages were in the courtroom in The Hague on Friday to hear Israel’s case, Mr. Becker said. His presentation included photos of the hostages and a video clip of a Hamas attacker boasting of personally killing 10 Jews on Oct. 7. “If there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel,” he told the court.

“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.”

In its court application, South Africa gave “a profoundly distorted factual and legal picture” of the Gaza war, he said. “The entirety of its case hinges on a deliberately curated, decontextualized and manipulative description of the reality of current hostilities.”

South Africa’s request for an urgent order against Israel to halt its Gaza offensive “amounts to an attempt to deny Israel its ability to meet its legal 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,” Mr. Becker said.

Based on the court’s own precedents, he said, the Genocide Convention should be invoked only for “a malevolent crime of the most exceptional severity.” It was not designed to address “the brutal impact of intensive hostilities on the civilian population,” even if such hostilities involved “enormous suffering” and “continuing loss of life,” he said, citing a previous court ruling.

Another member of Israel’s legal team, Malcolm Shaw, made a technical argument that the international court does not have jurisdiction over South Africa’s application because there is no formal dispute between Israel and South Africa.

As recently as late December, in an exchange of diplomatic notes, Israel was still seeking a meeting with South African officials to try to address their concerns about the Gaza war, and South Africa did not respond to this request before filing its court application on Dec. 29, he said.

South Africa’s application for an emergency order will now be decided by the court’s 15 judges, along with two temporary judges added by Israel and South Africa for the case.

For its judge, South Africa chose Dikgang Moseneke, a former deputy chief justice of its Constitutional Court and a former anti-apartheid activist who was imprisoned at Robben Island for 10 years with Nelson Mandela and other liberation fighters.

Israel, for its judge, chose a former president of its Supreme Court, Aharon Barak, who is a Holocaust survivor and one of Israel’s most respected jurists. He was a critic of Israeli Prime Minister Benjamin Netanyahu’s recent controversial efforts to sharply reduce the powers of the Supreme Court.

Mr. Barak, in an interview with The Globe and Mail in November, said he had seen no evidence of Israel violating international humanitarian law in Gaza. He argued that the deaths of civilians can be legally acceptable if they are proportional to the military objectives. “It may be proportional to kill five innocent kids in order to target their leader,” he told The Globe.