Israel contests that it is committing acts of genocide in Gaza or that it has a specific intent
to destroy, in whole or in part, the Palestinian people, as such. Israel emphasized that its war is not
against the Palestinian people as such, but rather is against Hamas, the terrorist organization in
control of Gaza that is bent on annihilating the State of Israel. Israel states that the sole objectives of
its military operation in Gaza are the rescue of Israeli hostages abducted on 7 October 2023 and the
protection of the Israeli people from displacement and from any future attacks by Hamas, including
by neutralizing Hamas’ command structures and machinery. The Respondent further argues that any
genocidal intent alleged by the Applicant is negated by (1) Israel’s restricted and targeted attacks of
legitimate military targets in Gaza; (2) its mitigation of civilian harm by warning them through
leaflets, radio messages and telephone calls of impending attacks; and (3) its facilitation of
humanitarian assistance. Israel also argues that the statements relied upon by South Africa as
containing genocidal rhetoric were all taken out of context and in fact were made in reference to
Hamas, not the Palestinian people as such. Moreover, Israel argued that any other persons who might
have made statements containing genocidal rhetoric were completely outside the policy and decisionmaking processes of the State of Israel.
21. As stated above, the tragic events of 7 October 2023 as well as the ensuing war in Gaza
are symptoms of a more deeply engrained political controversy between the State of Israel and the
people of Palestine. Having examined the evidence put forward by each of the Parties, I am not
convinced that a prima facie showing of a genocidal intent, by way of indicators, has been made out
against Israel. The war was not started by Israel but rather by Hamas who attacked Israel on 7 October
2023 thereby sparking off the military operation in Israel’s defence and in a bid to rescue its hostages.
I also must agree that any “genocidal intent” alleged by the Applicant is negated by (1) Israel’s
restricted and targeted attacks of legitimate military targets in Gaza; (2) its mitigation of civilian
harm by warning them through leaflets, radio messages and telephone calls of impending attacks;
and (3) its facilitation of humanitarian assistance. A careful examination of Israel’s war policy and
of the full statements of the responsible government officials further demonstrates the absence of a
genocidal intent. Here I must hasten to add that Israel is expected to conduct its military operation in
accordance with international humanitarian law but violations of IHL cannot be the subject of these
proceedings which are purely pursuant to the Genocide Convention. Unfortunately, the scale of
suffering and death experienced in Gaza is exacerbated not by genocidal intent, but rather by several
factors, including the tactics of the Hamas organization itself which often entails its forces embedding
amongst the civilian population and installations, rendering them vulnerable to legitimate military
attack.
22. Regarding the statements of Israeli top officials and politicians that South Africa cited as
containing genocidal rhetoric, a careful examination of those statements, read in their proper and full
context, shows that South Africa has either placed the quotations out of context or simply
misunderstood the statements of those officials. The vast majority of the statements referred to the
destruction of Hamas and not the Palestinian people as such. Certain renegade statements by officials
who are not charged with prosecuting Israel’s military operations were subsequently highly criticized
by the Israeli Government itself. More importantly, the official war policy of the Israeli Government,
as presented to the Court, contains no indicators of a genocidal intent. In my assessment, there are
also no indicators of incitement to commit genocide.
23. In sum, I am not convinced that the acts complained of by the Applicant are capable of
falling within the scope of the Genocide Convention, in particular because it has not been shown,
even on a prima facie basis, that Israel’s conduct in Gaza is accompanied by the necessary genocidal
intent. Furthermore, the rights asserted by South Africa are not plausible and the Court should not
order the provisional measures requested. But in light of the Court’s Order, I will proceed to consider
the other criteria required for the indication of provisional measures. This brings me to another
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criterion which I also find has not been met, namely that there is no link between the rights asserted
by South Africa and the provisional measures sought.
With reference to the judgments above, choose three (3) critical issues that both judgments dealt with and compare them. explain them
1. Genocidal Intent: Both judgments address the issue of genocidal intent in the actions of Israel towards Gaza. While South Africa argued that Israel's actions demonstrated a genocidal intent towards the Palestinian people, the Judge in the second judgment disagreed, finding that there was no prima facie showing of genocidal intent. The Judge pointed to Israel's targeted attacks on legitimate military targets, efforts to mitigate civilian harm, and statements made by Israeli officials that were taken out of context by South Africa.
2. Context of Statements: Both judgments also discuss the importance of understanding the context in which statements were made by Israeli officials. South Africa cited statements that it believed contained genocidal rhetoric, while the Judge in the second judgment determined that these statements were either taken out of context or misunderstood. The Judge emphasized that the statements primarily focused on the destruction of Hamas rather than the Palestinian people as a whole.
3. Violations of International Humanitarian Law: While both judgments touch on the issue of violations of international humanitarian law, the Judge in the second judgment clarifies that these violations are not the focus of the proceedings based on the Genocide Convention. The Judge acknowledges that Israel is expected to adhere to international humanitarian law but concludes that the actions complained of do not demonstrate genocidal intent. The actions taken by Israel in Gaza were seen as a response to Hamas' attacks and a bid to rescue Israeli hostages.