Ms RAGUAN: FACTS ON THE GROUND
Madam President, Members of the Court, it is an honour to appear before you on behalf of the State of Israel. As Professor Shaw noted, at this stage, South Africa does not need to prove that genocidal acts have been or are being committed. But it does have to show that the Genocide Convention is actually relevant.It has to show some level of acts and some level of intent. Professor Shaw has spoken to the issue of express intent. It is my task to speak to the circumstances of Israel’s actions.
Israel cannot possibly comprehensively address today all of the allegations made in South Africa’s Application in this regard. The Applicant paints a dire picture. But it is a partial and deeply flawed picture. The Application is so distorted in its descriptions that it prevents the Court from properly assessing the plausibility of the rights asserted by South Africa. Plausibility cannot be determined based on the unsubstantiated allegations of one party to the proceedings alone, if Article 41 of the Court’s Statute is to have any meaning. In the time available, I will address three aspects of reality on the ground that the Applicant has either ignored or misrepresented.
First, Hamas’ military tactics and strategy. Second, Israel’s efforts to mitigate civilian harm during operational activity. And third, Israel’s efforts to address humanitarian hardship in Gaza, despite Hamas’ attempts at obstruction.
With respect to Hamas’ military tactics and strategy, it is astounding that in yesterday’s hearing, Hamas was mentioned only in passing, and only in reference to the 7 October massacre in Israel. Listening to the presentation by the Applicant, it was as if Israel is operating in Gaza against no armed adversary. But the same Hamas that carried out the 7 October attacks in Israel is the governing authority in Gaza. And the same Hamas has built a military strategy founded on embedding its assets and operatives in and amongst the civilian population.
Urban warfare will always result in tragic deaths, harm and damage. But in Gaza, these undesired outcomes are exacerbated because they are the desired outcomes of Hamas. In urban warfare, civilian casualties may be the unintended, but lawful, result of attacks on lawful military objectives. International humanitarian law recognizes this reality and provides a framework for balancing military necessity with humanitarian considerations. These do not constitute genocidal acts.
In the current conflict, many civilian deaths are directly caused by Hamas. Booby-trapped homes detonate and kill indiscriminately. Mines in alleyways collapse structures around them. And over 2,000 rockets misfired by Hamas have landed inside Gaza, causing untold levels of harm. One telling example is a blast at the Al Ahli Hospital on 17 October. Hamas claimed that the IDF attacked the hospital; headlines around the world rushed to repeat this claim. The IDF later proved, and United States intelligence and other national security intelligence agencies independently confirmed, that the blast was the result of a failed rocket launch from within Gaza. It was not, as Hamas claimed, the fault of the IDF.
Damage to civilian structures is another fact claimed by South Africa as evidence of genocide. But South Africa does not consider the sheer extent to which Hamas uses ostensibly civilian structures for military purposes. Houses, schools, mosques, United Nations facilities and shelters are all abused for military purposes by Hamas, including as rocket launching sites. Hundreds of kilometres of tunnels dug by Hamas under populated areas in Gaza often cause structures above to collapse.
In the slides before you, you can see a militant priming projectiles for launch on IDF forces in Gaza. You can see the holes in the residential house to hide and launch them. Here you can see projectiles discovered underneath a bed in a child’s bedroom. Here, a rocket being fired from a school. The launch site is circled in red.. Here you can see militants firing from a United Nations school. You can see letters “UN” on the roof and the fire is circled in red. Here, long-range rocket launchers hidden inside a Scouts club building. Finally you can see part of a tunnel that runs for four kilometres, including nearby the Erez Crossing, which is adjacent to Israel.
Gaza’s infrastructure has certainly been harmed during the conflict. However, South Africa would have the Court believe that Israel is deliberately and unlawfully destroying homes without cause. But harm caused to lawful military objectives, and harm caused as a result of Hamas’ actions, is not evidence of genocide.
South Africa also alleges that Israel has waged an assault on Gaza’s health system. What South Africa has neglected to bring before the Court, however, is the overwhelming evidence of Hamas’ military use of such hospitals.
Hamas militants retreated to Rantissi Hospital in Gaza on 7 October with hostages from Israel, whom they then held in the basement. 21. In the slide before you, you will see a militant going into Quds Hospital with an RPG. Hamas fired at IDF forces from near, and from within, Quds Hospital. At Shifa Hospital, Gaza’s largest, Hamas managed operations from a closed-off area. Here you can see an opening to the tunnel that ran for hundreds of metres directly under the hospital. Here, you can see the weapons found in different wings of the hospital. Here, CCTV footage showing armed militants bringing hostages into the hospital’s lobby.. More than 80 militants hiding inside another hospital, the Adwan Hospital, surrendered themselves to the IDF. Here you can see a weapon that IDF forces discovered hidden inside incubators at the hospital. The director of the hospital has admitted that numerous members of hospital staff belong to Hamas’ military wing. In the Indonesian hospital in the neighbourhood of Jabalya, Hamas forces managed their operations from that hospital until the IDF reached it. IDF forces recovered the bodies of five murdered hostages from a tunnel dug underneath the hospital.
The list goes on. In every single hospital that the IDF has searched in Gaza, it has found evidence of Hamas military use. Israel is acutely aware that because of Hamas’ use of hospitals as shields for its military operations, in grave violations of international humanitarian law, patients and staff are at risk. This is why the IDF has reached out to every hospital and offered assistance in relocating patients and staff to safer areas. Hospitals have not been bombed; rather, the IDF sends soldiers to search and dismantle military infrastructure, reducing damage and disruption. Indeed, the tunnel that sat directly under the main building in Shifa Hospital was exploded without damaging the building above. The IDF then withdrew from the hospital. Yes damage and harm have occurred, as a result of hostilities in hospitals’ vicinity; sometimes by IDF fire, sometimes by Hamas. But always as a direct result of Hamas’ abhorrent method of warfare.
Israel has published plenty of evidence of the extensive misuse by Hamas of medical facilities in direct violations of international humanitarian law. It has brought journalists to see first-hand. It has recorded calls with hospital staff to co-ordinate assistance. None of that is mentioned in the Application. In fact, the Applicant describes the result and asks the Court to attribute malicious intent to Israel. But that is only a possible conclusion if one obscures, as the Applicant has, Hamas’ strategy of turning hospitals into terrorist compounds. The Applicant also made much of the fact that force has been even used in humanitarian zones. What the Applicant neglected to inform the Court, however, was that Hamas has in its contempt for Palestinian civil life regularly and deliberately fired from such zones, turning areas of relief into zones of conflict.
Here, before you, you can see one example of a launch site adjacent to the humanitarian zone, both amplified in larger pictures. 36. And in the next slide you can see evidence of a rocket launched from next to Gaza’s water desalination facility.
I now would like to address briefly the second issue: Israel’s efforts at mitigation of civilian harm.
Here, too, the Applicant tells not just a partial story, but a false one. For example, the Application presents Israel’s call to civilians to evacuate areas of intensive hostilities “as an act calculated to bring about its physical destruction”. This is a particularly egregious allegation that is completely disconnected from the governing legal framework of international humanitarian law. Evacuation of civilians is recognized under international humanitarian law as one of the measures that may be implemented to protect civilians from the effects of ongoing hostilities. Indeed, such evacuation may even amount to a duty that the party to the conflict has toward civilians.While temporary evacuation undoubtedly involves hardship and suffering, it is preferable to remaining in areas of intensive hostilities, all the more so when one party makes a concerted effort to use those civilians as shields.
The IDF maintains a Civilian Harm Mitigation Unit to undertake this task. It works full-time to provide advance notice of areas in which the IDF intends to intensify its activities, co-ordinate travel routes for civilians and secure these routes. This unit has developed a detailed map so that specific areas can be temporarily evacuated, instead of evacuating entire areas. On the slide before you, you can see that map, divided into areas, as well as a screenshot of a video explaining the system in Arabic so civilians may understand it. The IDF also enacts localized pauses in its operations to allow civilians to move. It does this even though Hamas does not agree to do the same and has even attacked IDF forces securing humanitarian corridors.
The PRESIDENT: Excuse me. I have a request from the interpreters that you slow down the pace of your speaking. Could you please do that? Thank you.
Ms RAGUAN: Of course. Yesterday, South Africa stated that the IDF gave 24 hours’ notice to civilians in northern Gaza to evacuate. In fact, the IDF urged civilians to evacuate to southern Gaza for over three weeks before it started its ground operation. Three weeks that provided Hamas with advance knowledge of where and when the IDF would be operating. This three-week period for temporary evacuation is a matter of common knowledge. And the Applicant’s misrepresentation of this fact is, at best, an unfamiliarity with the events and, at worst, a desire to tailor its story to a pre-existing narrative.
The IDF employs a range of additional measures in accordance with the obligation to take precautionary measures under international humanitarian law. For example, it provides effective advance warnings of attacks where circumstances permit. To date, the IDF has dropped millions of leaflets over areas of expected attacks with instructions to evacuate and how to do so, broadcast countless messages over radio and through social media warning civilians to distance themselves from Hamas operations, and made over 70,000 individual phone calls, including to occupants of the targets, warning them of impending attacks. This requires time. It requires resources and intelligence — and the IDF invests all of these to save civilian lives.
Here you can see the IDF’s Arabic Twitter account, providing information for civilians to evacuate specific areas, including the location of shelters nearby. Yet the Applicant astonishingly claims that these efforts are in themselves genocidal. In other words, a measure intended to mitigate harm to the civilian population, sometimes exceeding the requirements of international humanitarian law, is proof — according to the Applicant —of Israel’s intent to commit genocide, when in fact, it proves the exact opposite.
My third topic, with respect to the humanitarian situation. Much attention was given by South Africa to this situation. Despite Israel’s efforts to mitigate harm, there is no question that many civilians in Gaza are suffering as a result of the war that Hamas began.While Israel is seeking to minimize civilian harm, Hamas is doing everything in its power to use the civilian population and civilian infrastructure for its own protection, thwarting humanitarian efforts aimed at alleviating the distress of the civilian population. Further illustration on Hamas’ tactics and Israel’s efforts can be found in tabs 4 and 9 of the volume provided to the Court.
I now turn to describe just some of the humanitarian co-ordination efforts that Israel has been engaged in and Mr Sender will further expand on this. Israel maintains a dedicated military unit, called COGAT, responsible for routine co-ordination with international organizations in Gaza with respect to various humanitarian aspects. It is COGAT that mans and operates the crossings between Israel and Gaza. This includes the Erez Crossing, through which prior to 7 October, almost 20,000 Gazans passed through into Israel daily for work.
South Africa showed a map yesterday, with the Erez Crossing marked “closed”. What it failed to note is that the crossing was attacked on 7 October by Hamas, which murdered and kidnapped COGAT staff and caused significant damage. Here you can see some of that damage. Nevertheless, COGAT works around the clock to fulfil its role. Its large professional staff run numerous initiatives, of which I will only mention a few.
First, COGAT manages a mechanism by which it maintains an up-to-date picture of the needs in Gaza. It does this with the United Nations, other international organizations and States, whose representatives sit in COGAT’s offices. COGAT uses this monitoring to help donor States and organizations prioritize their aid efforts to fit the evolving situation on the ground. 56.
Second, COGAT facilitates the entry of aid into Gaza. Israel has publicly stated repeatedly that there is no limit on the amount of food, water, shelter or medical supplies that can be brought into Gaza. To increase capacity, COGAT has re-opened the Kerem Shalom crossing, as acknowledged by the Security Council in resolution 2720, despite Hamas putting it under fire. Israel has offered to extend operating hours at the crossing if there is a capacity to receive the goods by international organizations on the Gazan side.
Third, COGAT works to reinforce and strengthen medical services. COGAT has facilitated the huge logistical challenge of establishing four field hospitals in Gaza, and more are being set up, and two floating hospitals. It has facilitated the entry of new ambulances into Gaza. And Israel has even co-ordinated airdrops of aid over Gaza by Jordan, co-ordinating these flights with the Israel Air Force operating in Gaza.
This, of course, is not to say that nothing more can be done, or that there are no challenges to the humanitarian situation in Gaza. Such challenges exist and change according to the evolving circumstances of the conflict. But it is to say that the charge of genocide, in the face of these extensive efforts, is frankly untenable.
It is an inconvenient truth for the Applicant’s case, but one of the most significant challenges is the fact that Hamas commandeers consignments into Gaza and controls their distribution. Gazan residents have reported that Hamas is regularly stealing aid, at the expense of its own population, for the benefit of its fighters. This is a tweet stating that fuel and medical equipment was stolen by purported Hamas members from an UNRWA warehouse. UNRWA later deleted the tweet, perhaps under pressure from the authorities.Here you can see Hamas commandeering an aid truck. And here is another example. Because Hamas for years has used aid consignments to smuggle weapons, security checks of all goods going into Gaza are required, as acknowledged by international humanitarian law. Hamas has time and again hoarded fuel, including during the current conflict, which it uses for military purposes, to sustain ventilation in its expansive underground tunnel network, and for its continued attacks against Israel.
Nevertheless, in co-ordination with the United Nations, Israel enables fuel to enter Gaza to service essential infrastructure, such as sewage treatment, desalination plants, water pumps and hospitals, and cellular infrastructure for maintaining communication. Israel remains committed to helping international organizations and States involved in the aid effort to overcome these hurdles, and consistently increase the amount of aid and services available to the population in Gaza, as will be further described by Mr Sender.
Here, a picture of incubators the IDF provided to Shifa hospital. Here, a picture of an ambulance convoy co-ordinated by COGAT. A picture of consignments. A picture of ambulances, the entry of which was co-ordinated by COGAT. And finally, more consignments waiting to enter Gaza.
Madam President, Members of the Court, in the time allotted I have been able to describe only some of Israel’s efforts to mitigate civilian harm and to address the humanitarian situation in Gaza. But even this mere fraction is enough to demonstrate how tendentious and partial the Applicant’s presentations of these facts are, and certainly enough to conclude that the allegation of intent to commit genocide is baseless.
If Israel had such intent, would it delay a ground manoeuvre for weeks, urging civilians to seek safer space and, in doing so, sacrificing operational advantage? Would it invest massive resources to provide civilians with details about where to go, when to go, how to go, to leave areas of fighting? Would it maintain a dedicated unit, staffed with experts, whose sole role is to facilitate aid? And who continued to do so, despite having their staff killed and kidnapped?
When a population is ruled by a terrorist organization that cares more about wiping out its neighbour than about protecting its own civilians, there are acute challenges in protecting the civilian population. Those challenges are exacerbated by the dynamic and evolving nature of intense hostilities in an urban area, where the enemy exploits hospitals, shelters and critical infrastructure. Would Israel work continuously with international organizations and States, even reaching out to them on its own initiative, to find solutions to these challenges if it were seeking to destroy the population? Israel’s efforts to mitigate the ravages of this war on civilians are the very opposite of intent to destroy them. Under these circumstances, far from being the only inference that could reasonably be drawn from Israel’s pattern of conduct, intent to commit genocide is not even a plausible inference.
Madam President, Members of the Court, that concludes my statement. I thank you for your kind attention and I ask that you now invite Mr Sender to the podium.
