October 7 Hamas attack on Israel 'largest mass murder of Jews in a day since Holocaust', ICJ hears

The attack by the Palestinian military wing Hamas on October 7 2023 was the “largest calculated mass murder of Jews in a single day since the Holocaust”, the International Court of Justice (ICJ) heard on Friday.

Israel’s legal team was responding to an application by South Africa accusing it of genocide in its war against Hamas in Gaza. On Thursday South Africa presented its case at the Peace Palace in The Hague, Netherlands.

Tal Becker, legal adviser to Israel’s ministry of foreign affairs, recounted how the attack that started at a music festival resulted in the killing of 1,200 people and others being taken hostage.

“The assailants proudly filmed and broadcast their barbarism.

“The events of that day are all but ignored by the applicants' submissions. It was the largest calculated mass murder of Jews in a single day since the Holocaust,” Becker said.

He provided visual evidence to the court. “We do so, not because these acts, however sadistic and systematic, release Israel of its obligations to uphold the law as it defends its citizens and territory.

“We do so because it is impossible to understand the armed conflict in Gaza without appreciating the nature of the threat that Israel is facing and the brutality and lawlessness confronting it,” Becker said.

On Thursday advocate Adila Hassim SC argued that 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.

“In the first three weeks alone after October 7, Israel deployed 6,000 bombs per week. At least 200 times it has deployed 2,000 pound bombs in southern areas of Palestine designated as 'safe'.

“These bombs have also decimated the north, including refugee camps. Two-thousand-pound bombs are some of the biggest and most destructive bombs available. This killing is nothing short of destruction of Palestinian life. It is inflicted deliberately. No-one is spared, not even newborn babies,” said Hassim.

Malcolm Shaw KC and professor of international law Sir Robert Jennings argued on Friday that there was no dispute between Israel and South Africa and not every conflict is genocidal.

“Whether a dispute exists at the time of the filing of the application, it’s a matter for objective determination for the court.

“Bilateral interaction is required. A dispute is a reciprocal phenomenon. For a dispute to exist it must be shown that the claim of one party is positively opposed by the other. The respondent should not be deprived of an opportunity to react to the claim made against it before resulting in litigation. Particularly in a matter of such severity as an accusation of genocide,” said Shaw.

He said South Africa had not brought substantial evidence to prove the allegation of genocide.

“Here South Africa cites only a couple of general statements by Israel referencing merely a press report by Reuters and the publicity released from the Israeli ministry of foreign affair. The South African approach to this matter seems to believe it does not take two to tango.

“This is not a dispute, it is a ‘uni-spute’. A one-sided clapping of hands.

“South Africa has given support to Hamas. How could anyone possibly argue that Israel could not defend itself faced with the atrocities of October 7? Israel does not have any right to violate the law or commit genocide, but it has every right to defend itself.

“This is an important case. Israel’s response was and remains legitimate and necessary. This is not genocide, South Africa tells only half a story. Without intent there can be no genocide in law. There is no dispute as required by prima facie provision,” Shaw said.

On Thursday Prof John Dugard SC, counsel and advocate for South Africa, submitted the South African government repeatedly voiced its concerns in the UN security council and in public statements that Israel’s actions had become genocidal.  

“On November 10, in a formal diplomatic démarche, it informed Israel that while it condemned the actions of Hamas it wanted the ICC to investigate the leadership of Israel for international crimes, including genocide.   

“In announcing this decision President [Cyril] Ramaphosa publicly expressed his abhorrence ‘for what is happening right now in Gaza, which is now turned into a concentration camp where genocide is taking place'.

“At this stage it became clear there was a serious dispute between South Africa and Israel which would end only with the end of Israel’s genocidal acts,” said Dugard.

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