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“Gaslighting and Cherry-Picking”: How Israel Is Defending Itself at World Court on Charges of Genocide

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The second day of South Africa’s case against Israel at the International Court of Justice at The Hague saw Israel take the stand, defending against accusations that its government is committing genocide against Palestinians in Gaza. South Africa is demanding an emergency suspension of Israel’s aerial and ground assault on Gaza in front of the United Nations’ highest court. From The Hague, we hear from Diala Shamas, a senior staff attorney at the Center for Constitutional Rights, the organization that sued President Biden in November, accusing him of failing to prevent genocide in Gaza. Shamas recaps the two days of hearings and discusses other avenues for holding Israel accountable. “Whether it’s at the ICJ or whether it’s in federal court in the United States, we’re really looking to government to do everything that they can to uphold their duty to prevent an unfolding genocide,” says Shamas.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

Today, Israel defended itself against accusations of genocide at the International Court of Justice in The Hague. In one of the biggest cases ever to come before the United Nations’ high court, South Africa accused Israel of acts of genocide against Palestinians and demanded an emergency suspension of Israel’s aerial and ground assault on Gaza. A decision on that request will probably take weeks, though the full case will likely last years. Israel often boycotts international tribunals and U.N. investigations, calling them unfair and biased, but this time, for the first time, they attended the hearing, sent a high-level legal team to defend against the accusations of genocide.

The two-day hearings at what’s called the Peace Palace in The Hague began Thursday with South Africa laying out its case against Israel, saying its three-month assault on Gaza is being conducted with the intent to bring about the destruction of Palestinians as a group. Israel defended itself today against the accusations. At the hearing, Israeli legal adviser Tal Becker criticized South Africa for accusing Israel of genocide.

TAL BECKER: 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 organizations whose brutality knows no bounds. …

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, decontextualized 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 delegitimizing 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.

AMY GOODMAN: I want to turn to another clip of the Israeli legal adviser Tal Becker, who talked about the October 7th attack by Hamas, saying Israel had a right to defend itself.

TAL BECKER: 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. …

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 defense of its citizens, to the hostages and to over 110,000 internally displaced Israelis unable to safely return to their homes. …

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. …

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’s utter contempt for the law. It is committed, as it must be, to demonstrate humanity, but it does so in the face of Hamas’s utter inhumanity. …

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.

AMY GOODMAN: We’re joined now at The Hague by Diala Shamas. She’s a senior staff attorney at the Center for Constitutional Rights. In November, CCR sued President Biden, accusing him of failing to prevent genocide.

Diala, thank you so much for being with us. I know it’s very noisy outside. There’s a major pro-Palestinian rally outside the International Court of Justice. This is historic, this two days. Yesterday South Africa accused Israel of genocide. Today Israel defended itself. Can you talk about their major arguments, saying this is an existential battle, they are simply engaging in self-defense?

DIALA SHAMAS: Thank you for having me.

Yes, it really is a historical moment. And I would have preferred to start with yesterday’s argument and just the significance of what we heard yesterday and what we saw yesterday and what all of these people that are here now, even over an hour after the hearings concluded, still chanting and protesting and thanking South Africa, the significance that South Africa brought this petition and started, at the outset of the hearing yesterday, reminding the world and the court that the context is 75 years of apartheid. And, of course, we all know South Africa and the South African people have emerged from a horrific battle against apartheid. They know what abandonment by the international community looks like and feels like. And it is in that spirit that they have come to this court and also were very clear in their statement that they have come to the court out of their legal and moral obligation, but their legal obligation to do something to prevent the unfolding genocide against the Palestinian people.

Today we heard predictable arguments in response, nothing that we haven’t already heard over the course of the last three months, and in many ways of what we’ve heard from the Israeli legal wing for the last 20 years, leaning heavily on self-defense — although South Africa, clearly, yesterday, and then today in a brief statement at the steps right here in front of me, reminded the world that self-defense is never a justification for genocide or any atrocity, really.

The other arguments, we heard a lot of more sort of factual disputes and gaslighting and cherry-picking and a lot of complaints that everything is sort of one-sided. And the two other main legal arguments that they leveraged were, essentially, first, that the court shouldn’t have jurisdiction in the first place, that South Africa hadn’t followed the proper procedures, that they hadn’t followed the appropriate protocols of notice to be in the court in the first place. And the second is that South Africa — the relief that South Africa is seeking, the provisional measures, are not something that the court is essentially permitted to grant, you know, citing various arguments to make that point.

So, you can’t be here, and then you can’t do anything about it, and, in the middle, everything we do is self-defense — and complete deflection, and never, at any point, addressing the incredibly powerful arguments laid out yesterday at a hearing for three hours by the South African legal team, the really compelling factual and legal arguments on intent, laying out, you know, the litany of statements by Israeli officials in the highest level of government all the way down to the foot soldiers, showing an environment and showing intent to commit genocide in Gaza, and everything else that was laid out.

So, it was really stark to sit today and listen to the arguments, after a day, yesterday, where, frankly, for the first time in the last three months, we’ve been able to hear, from beginning to end, uninterrupted, a compelling case of what we’ve sort of all seen play out over the course of the last three months. The South African legal team noted that we’ve been watching this on — atrocities on our phones. We have been seeing Palestinians broadcast their killing and the genocidal acts live. And the South African legal team put that out to the world and to the court very compellingly.

AMY GOODMAN: Diala, I want to turn to another clip from today’s hearing. This is Deputy Attorney General of Israel Gilad Noam calling on the court to dismiss the charges.

GILAD NOAM: This case concerns a large-scale armed conflict with tragic consequences for civilians on both sides. Yes, there is a heart-wrenching armed conflict, but the attempt to classify it as genocide and trigger provisional measures is not just unfounded in law, it has far-reaching and negative implications that extend well beyond the case before you.

Ultimately, entertaining the applicant’s request will not strengthen the commitment to prevent and punish genocide, but weaken it. It will turn an instrument adopted by the international community to prevent horrors of the kind that shocked the conscience of humanity during the Holocaust into a weapon in the hands of terrorist groups who have no regard for humanity or for the law. …

For us, provisional measures would lead to a perverse situation. It would effectively allow Hamas to continue attacking the citizens of Israel, to hold 136 hostages in unbearable conditions, to keep tens of thousands of displaced Israelis from returning to their homes, and, essentially, to promote its plan to massacre as many Israelis and Jews as it can.

AMY GOODMAN: Diala Shamas, you’re standing outside The Hague. You watched this argument inside The Hague. It just concluded. Senior staff attorney at the Center for Constitutional Rights, your response?

DIALA SHAMAS: Everything we expected. There were no new arguments raised by the Israeli legal team. Essentially, it amounted to them telling the court, “Trust us. Don’t believe what we’ve been telling the world, what we have been putting out in all of our statements, the statements that have circulated, clearly, you know, with genocidal intent, just saying we want to wipe out the population of Gaza, making comparisons, the famous Amalek quote.” And now they’re just saying, “Well, we were not serious there. Just trust us, that we are a, again, democracy with the rule of law” — this is something that — this is a public image that the Israeli government has, you know, done a lot of work to cultivate over decades, and that they do everything by the book. “And just don’t look at the evidence. Don’t look at everything the South Africans laid out plainly yesterday. Don’t look at everything the world has been seeing. And just trust us that we have procedures that we are following here, and, you know, we’re doing our best.”

And plenty of, you know, sort of concerns — and it’s hard to really figure out where to start picking, but a few really concerning statements about civilians, essentially making the argument that civilians have become targets because the legal team repeatedly stated over the course of their arguments that — you know, that because Hamas is operating in Gaza, Israel has to do what it has to do, and that includes the targeting of civilians.

But again, fundamentally, the claim that’s brought by South Africa here is the claim of genocide, which you can’t — there’s simply no argument that self-defense is a justification for genocide. The South African team has laid out the argument showing intent and also the underlying acts, and everything else is essentially a distraction.

AMY GOODMAN: Diala, the Biden administration is due in federal court later this month. While Israel faces charges of genocide at The Hague yesterday and today, in a case you’re working on with CCR, you’re taking it right to President Biden. Explain the theory of your case and what exactly you expect to happen. And is there any connection between that case in a U.S. federal court and what we’re seeing right now at the U.N.’s highest court, the World Court?

DIALA SHAMAS: Yeah, I couldn’t hear the full question, but I think you’re asking us about the case that the Center for Constitutional Rights has brought against Biden, President Biden, Secretary of State Blinken and Austin, and Secretary of Defense Austin, in California federal court, raising failure in their duty to prevent a genocide and complicity in genocide arguments. And that case has a hearing coming up on February — I’m sorry, January 26th, where our team will be standing up in court arguing for a preliminary injunction, asking the court to order the end of military assistance and other forms of assistance, political and diplomatic assistance, to Israel in light of the unfolding genocide.

The relationship is, you know, having to stand up in court and defend that a few weeks after this hearing, and possibly also after the ICJ has issued preliminary measures, is going to put this administration in a — I think it will be one of the first tests that we’ll have of how the U.S. government is responding to the ICJ — an ICJ decision and to the arguments raised here and the arguments that we’re also raising in the U.S. case. I think we’re all going to be looking to how the world responds to any preliminary measures issued by the Court of Justice.

As the South African attorney yesterday said, this is really, ultimately, a test of the very legitimacy of international law and the international legal order. If we can’t stop an unfolding genocide, then what is any of it for? She made a compelling closing argument, citing to a Palestinian, Munther Isaac, who spoke his sort of Christmas sermons, asking the world where — you know, “What will you say where you were when a genocide was unfolding?” And so, whether it’s at the ICJ or whether it’s in federal court in the United States, we’re really looking to government to do everything that they can to uphold their duty to prevent an unfolding genocide.

And having our case in the U.S. is, of course, incredibly important because the U.S. is the biggest supporter of Israel. There’s been investigative reporting showing how much military aid and military support has been indispensable to Israel’s assault and war on Gaza. And yet we’ve also seen repeated statements of unconditional support from the U.S. administration to the Israeli government, despite almost — you know, despite three months of daily attacks on civilians and daily statements showing an intent to destroy the civilian population of Gaza, in whole or in part, the Palestinian population.

AMY GOODMAN: Well, I want to thank you, Diala Shamas, senior staff attorney at the Center for Constitutional Rights. Again, in November, CCR sued President Biden, Secretary of State Tony Blinken, accusing them of failing to prevent a genocide. For those who missed yesterday’s show, it was just after South Africa made its case at the International Court of Justice. We wanted to bring you South Africa lawyer Adila Hassim, who helped to lay out South Africa’s case at The Hague.

ADILA HASSIM: For the past 96 days, Israel has subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare. Palestinians in Gaza are being killed by Israeli weaponry and bombs from air, land and sea. They are also at immediate risk of death by starvation, dehydration and disease as a result of the ongoing siege by Israel, the destruction of Palestinian towns, the insufficient aid being allowed through to the Palestinian population, and the impossibility of distributing this limited aid while bombs fall. This conduct renders essentials to life unobtainable.

AMY GOODMAN: That’s South African lawyer Adila Hassim speaking yesterday before the International Court of Justice, laying out South Africa’s case against Israel, saying it’s engaged in genocide in Gaza. To see excerpts of yesterday, you can go to democracynow.org.

When we come back, we’re going to speak with an Israeli Jewish Knesset member who’s facing expulsion for saying what Israel is doing in Gaza is genocide. This is Democracy Now! Back in a minute.

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“They Want to Silence Us”: Knesset Member Ofer Cassif Faces Expulsion for Backing South Africa Genocide Case

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