Behind-the-scenes: How Israel prepared for the ICJ hearing

PEOPLE LISTEN to the proceedings inside the ICJ yesterday, in The Hague.

That the dozens of Israeli diplomats, legal officials, and political officials involved in the fight against genocide allegations before the International Court of Justice (ICJ) did not have a simple job would be the understatement of the year.

These officials went through a particularly difficult time given the responsibility to protect the country from genocide recriminations. Many would say that there was a small amount of relief after the hearing ended, but certainly no elation, The Jerusalem Post understands. Rather, their view would be that it was a very difficult situation and process.

On the positive side, much of the team was happily surprised to receive a proverbial “hug” from the general public following the hearing. Their view would be that the public was exposed to their more day-to-day work, and the complexity and importance of what they do, which helped the general public relate more to the kind of legal discourse the team is part of on behalf of Israel.

Team members, in particular, would say it was a very unique and intense experience on a personal level.

Because of the intensity of the mission and the speed of the process, team members did not initially get to think about the full public significance of the event beyond the legal intricacies they dived into.

Protests near the ICJ in the Hague as Israel and South Africa face each other in Gaza genocide case (credit: REUTERS/THILO SCHMUELGEN)

Protests near the ICJ in the Hague as Israel and South Africa face each other in Gaza genocide case (credit: REUTERS/THILO SCHMUELGEN)

The amount of time there was to prepare was limited to two weeks. They often worked late into the night, not getting close to the six hours of sleep per day that the IDF recommends as a minimum.

Decisions had to be made fast.

Intensive labor went into defending Israel

Even the logistics were challenging, deciding who would work on the different issues in Israel, the shorter list of who would fly to The Hague to attend the hearings in person, and finally, who would speak about which issue, the Post has learned.

In all, dozens of officials – legal, diplomatic, and from the political echelon – worked on the issue, including the Justice Ministry, Foreign Ministry, IDF International Law Division, Defense Ministry, National Security Council, and key cabinet ministers.

Arranging to transport all of the physical documents and multimedia files on very short notice was an additional challenge.

Only afterward did the team realize that all four major news channels broadcast all the proceedings, and the views were there to match.

No one expected that level of attention, especially for proceedings in English during the one day off that Israelis get – Friday. They were happy with the turnout. Many of their friends, even distant contacts, encouraged them to keep their heads up during this challenging time.

The team had a hard time reading the judges’ facial expressions for any hints about how they might rule.

Unlike Israeli and American judges who ask aggressive questions that often hint at which direction they are leaning to, the ICJ judges said little and kept mostly poker faces.

On a positive note, the team believed that the judges appeared very attentive. This was especially true when Israel listed the many facts that the judges had not previously known – as opposed to arguments about jurisdiction, which they already were more familiar with.

They also were happy that Israel’s presentation was a serious and substantive classic legal appearance that did not turn into a circus, and it was filled with facts and not just videos.

If the judges expected Israel to only talk about the horrors of October 7, without getting into the heart of proactively defending against the genocide accusations, the Israeli team did the opposite, delving deep into those allegations and possibly surprising the judges and many observers.

Unlike your typical court case where the prosecutors and defense lawyers often make small talk when not performing before the judges, the Post understands that there was no small talk with the South African lawyers during the hearings.

Some Israeli officials were more focused on straight legal arguments, while others were focused on diplomatic and global political considerations.

For those looking at the diplomatic-political side, the general expectation would be that the main swing votes in the case are Uganda, Jamaica, and India – with the US, Germany, Slovakia, France, Japan, and Australia expected to vote for Israel, and Lebanon, Somalia, Morocco, Brazil, China, and Russia expected to vote against.

China and Russia might be slightly wild cards, as they are accused of genocide charges in other global forums, so it could help them to beat genocide charges against Israel, even though they tend to vote against Israel in the UN and have supported Hamas.

Even officials focused more on law understand that politics is a significant factor for many ICJ judges, especially those from nondemocratic countries. Still, they hoped some of the substantive arguments that the judges heard made a difference and would be taken seriously.

Deciding to engage the substance of the allegations was a key one, and it was different than how Israel handled the International Criminal Court (ICC), where to date, the Jewish state has held fast to its technical jurisdictional objections.

This was not an option for the ICJ team, given that Israel ratified the Genocide Convention long ago.

Israeli expectations were that the decision to order Israel to cease military actions would take somewhere between one week to a few.

That decision may be delivered in another live session, but only a much smaller local Israeli delegation would likely attend – not the full team of officials and lawyers who were present last week.

Regarding the broader substantive allegations of genocide, Israeli predictions were that a decision would take 18 to 36 months.

In light of the expectation of continued proceedings in the coming years, as well as the beginnings of national court cases against Israel in countries such as Norway, Israel is expected to need to increase the amount of legal and diplomatic staff it has to handle such issues.

Those inside the system view the coming wave of legal allegations against Israel as no less than a full-fledged additional front in the current war, even if it is “lawfare” and not kinetic physical battles.

At the same time, there have been waves of cases filed against Israel in several countries, and Israel has beaten all of them that were filed in democratic countries.

Diplomatic and legal officials are no less concerned about the ongoing criminal alleged war-crimes probe at the ICC, which may even turn out to be the most imposing legal threat.

ICC Chief Prosecutor Karim Khan significantly increased his focus on Israel with a visit in early December as well as a spike in statements warning Israel of the consequences of violating the laws of war or rules regarding humanitarian aid.

That Hamas is alleging that around 24,000 Palestinians have been killed, and that the IDF has said it killed around 9,000 Hamas terrorists, means there will be unprecedented pressure on the ICC to go after Israel because the number of killed Palestinian civilians (maybe as many as 15,000) is unprecedented. (In the 2014 conflict, the IDF is believed to have killed more than 1,000 Palestinian civilians.)

The good news in the short term is that the probe is expected to take years, and also, unlike the ICJ, which is only probing Israel, the ICC is going after Hamas for war crimes.