Denying Israel's right to self-defense dangerous and 'unthinkable,' legal expert warns ICJ

Stripping Israel of the right to defend itself against Hamas would prevent it from rescuing the hostages and halting another October 7-style attack, the country’s legal team told the International Court of Justice at the Hague on Friday.

“To deny Israel that inherent right” of self-defense “is unthinkable,” Foreign Ministry legal adviser Tamar Kaplan Tourgeman told the ICJ.

“Can it really be maintained that if hostages are brutally held captive in Rafa, Israel cannot come to their rescue?” she asked.

“Can it really be maintained that if Hamas continues to use Gaza as a launching pad for its indiscriminate attack, Israel cannot defend itself against them?”

Tourgeman spoke as she wrapped up the two-day hearing on South Africa’s request for the ICJ to demand that Israel halt its war on Hamas in Gaza and fully withdraw its forces from the enclave.

Ordering Israel to stop its military campaign would “condemn the hostages to near certain death,” she said, adding, “What would it mean for the women still held in captivity?”

“Granting South Africa’s request would be to side with a terrorist organization, which will no doubt celebrate any such decision.”

She urged the ICJ not to “legitimize, protect and reward Hamas for Hamas’s despicable method of warfare.”

Her statement was interrupted by a protester who had managed to enter the court and screamed out, “Liar!”

South Africa trying to 'obtain military advantage for its ally Hamas'

Tourgeman and Israeli Deputy Attorney-General Gilad Noam argued that the ICJ should reject the request, given that Israel was at war with Hamas and that the ruling would be binding on only one of two parties in a combat situation.

South Africa had turned to the court in December, arguing that Israel was committing genocide against the Palestinians in Gaza and that, as a result, it was in violation of the 1948 Convention on the Prevention of Genocide.

It asked that the ICJ not wait until a final ruling was handed down on the matter but act immediately to halt the war. The court held a hearing in January but did not issue such a provisional measure, ordering Israel instead to prevent future possible genocidal acts and to ensure the immediate entry of humanitarian assistance into the enclave.

In light of a pending major IDF military campaign in Rafah, South Africa has once again asked the court to halt the war and to ensure that the military fully withdraws from the enclave.

Noam explained that South Africa had turned to the court “in order to obtain military advantage for its ally Hamas, which it does not wish to see defeated.”

He noted that South Africa hosted a Hamas delegation in Johannesburg only six days before it submitted its latest request to the court for provisional measures.

“They did not use the meeting to urge Hamas to release the hostages, to stop targeting Israeli civilians, to cease using human shields, [or] to cease operating from within and nearby hospitals, UN facilities, and other protected sites,” he said.

They met, he charged, to discuss their continued campaign against Israel in the court and on the ground.

“South Africa purports to come before you yet again as a guardian of humanity. In fact, it had a clear ulterior motive when it ordered Israel to stay away from Rafah and to withdraw all its troops from Gaza,” Noam said.

South Africa has “obscenely exploited” and made a “mockery” of the genocide convention in a presentation to the court that was divorced from fact and circumstance, the deputy attorney-general said.

“Most repugnant,” Noam explained, “is the South African suggestion that Israel has created zones of extermination, evoking terminology reminiscent of the systematic extermination of European Jews during the Holocaust.”

In this situation, “Israel is engaged in a war it did not want and did not start. It is under attack and fighting to defend itself” against Hamas, he explained.

Even the data that South Africa had used, based on Hamas reports of 35,000 dead, including many women and children, had turned out to be faulty, Noam said. He pointed to the revised Hamas figures, which had verified to date only 24,686 of those fatalities, out of which only 52% were women and children.

Noam recalled that the terror group led an invasion of southern Israel on October 7, killing over 1,200 people and seizing 252 as hostages.

Hamas and other terror groups in the enclave continue to attack Israel with indiscriminate rocket fire and threaten to repeat the October 7 attack many times over, with the aim of killing as many Israeli civilians as possible, he explained.

More than 10,000 rockets have been fired at Israel from the Gaza Strip since the start of the war, with 278 of those launched in the last two weeks alone, he stated.

Thousands of residents from southern Israel have been displaced as a result of the violence, Noam said, and it may be years before they can return home.

The international community has been concerned about the humanitarian cost of a Rafah operation.

South Africa describes Rafah “as the last refuge for civilians in Gaza,” Noam explained, but it is also a military stronghold for Hamas, which poses a continued threat to Israel and its citizens.

Rafah was a terror hub with Hamas battalions and underground tunnels that included command centers and control rooms, he said.

Hostages are held in Rafah, he added, and “nearly 700 tunnel shafts have been identified” there, from which at least 50 cross into Egypt. They can be used to smuggle terrorists and hostages out of Gaza and are used to bring weapons into the enclave.

More than 1,400 rockets have been fired from Rafah alone, including more than 120 in the last two weeks, and some 600 launch sites have been identified there, he said.

Many of them were hidden within or were close to civilian infrastructure, Noam explained.

The presence of civilians in the area is precisely why there has not been a large-scale assault on Rafah, but only a limited and local operation, he said.

It was incompressible to him that the remaining 132 hostages had been in Gaza for 224 days.

“Only by bringing down Hamas’s military stronghold in Rafah will Palestinians be liberated from the clenched grip of the murderous terrorist regime, and the road to peace and prosperity may finally be paved,” he said.

The genocide convention was not meant to supervise the conduct of warring parties but to prevent the grave crime of genocide.

Should the ICJ rule in South Africa’s favor, he said, “There is a danger that the court will find itself engaged in the micro-management of operational aspects of an armed conflict,” Noam said.

He stressed that the war would end if Hamas would lay down its arms and release the hostages. Israel, he noted, had already proposed a deal that would pause the war in exchange for the remaining hostages, but this deal was rejected.

“This war, like all wars, is tragic and terrible for Israelis and Palestinians. And it has exactly a terrible human price. But it is not genocide,” he said.

To accede to South Africa’s request would turn “the Genocide Convention into a sword rather than a shield and would strip Israel of its rights under international law and deprive Israeli civilians of its protection,” Noam said. “Such a situation is both legally and morally untenable.”