ICJ orders Israel to immediately halt its military incursion in Rafah

The International Court of Justice (ICJ) on Friday 24 May 2024, ordered Israel to immediately halt its military offensive in the southern Gaza city of Rafah, referring to the humanitarian situation in Rafah as “disastrous.”

Read more in Daily Maverick: Israel-Palestine War

“The court considered that, in conformity with the obligations under the Genocide Convention, Israel must immediately halt its military offensive and any other action in the Rafah governate which may inflict on the Palestinian group in Gaza conditions of life which could bring about its physical destruction in whole or in part,” said the body’s President Judge Nawaf Salam. 

In its application to the ICJ on 10 May, South Africa had requested that the court order Israel to immediately withdraw from and cease its military incursion in Rafah. But, presenting its case to the court on 17 May, South Africa urged the court to reassert its authority and order Israel to cease its military operations throughout the Gaza Strip. 

READ HERE: a summary of the #ICJ Order on the request of South Africa of 10 May 2024 for the modification of the Order of 28 March 2024 in the case #SouthAfrica v. #Israel https://t.co/o3gnBr92g6 pic.twitter.com/6LWegvuii8

— CIJ_ICJ (@CIJ_ICJ) May 24, 2024

Arguing before the court, South Africa’s high-powered legal team had said that Israel’s military incursion in Rafah was “the last step in the destruction of Gaza and its Palestinian people”.

South African Ambassador to the Netherlands Vusimuzi Madonsela at the International Court of Justice, during a ruling on South Africa's request to order a halt to Israel's Rafah offensive in Gaza in The Hague, Netherlands, on 24 May 2024. (Photo: REUTERS/Johanna Geron)

‘Characterised as disastrous’

While the ICJ did not order a full cessation of hostilities in the Gaza Strip on Friday, it agreed with South Africa that the situation in the enclave had deteriorated since its orders of 26 January and 28 March 2024, and that the provisional measures ordered by the court in March did not fully address the situation in the Gaza Strip now.

“The court notes that the catastrophic humanitarian situation in the Gaza Strip which, as stated in its order of 26 January 2024, was at serious risk of deteriorating, has deteriorated, and has done so even further since the court adopted its order of 28 March 2024. In this regard, the court observes that the concerns that it expressed in its decision communicated to the Parties on 16 February 2024 with respect to the developments in Rafah have materialised, and that the humanitarian situation is now to be characterised as disastrous,” said Judge Salam.

The airstrikes and missile attacks that continue to devastate the Gaza Strip have killed more than 35,500 Palestinians and wounded more than 80,000, according to the health ministry. The revised death toll in Israel from Hamas’ 7 October attack is 1,139, with more than 120 still held captive in Gaza.

Judge Nawaf Salam, president of the International Court of Justice (ICJ), presides during a ruling on South Africa's request to order a halt to Israel’s Rafah offensive in Gaza, as part of a larger case brought before the Hague-based court by South Africa accusing Israel of genocide, on 24 May 2024. (Photo: REUTERS/Johanna Geron)

Ordered to open Rafah crossing

On Friday, the court further ordered Israel to open and maintain the Rafah border crossing for the “unhindered provision at scale of urgently needed basic services and humanitarian assistance”. 

Additionally, it ordered Israel to “take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide”.

The United Nations (UN) had noted that some 1.5 million Palestinians were sheltering in Rafah — making it one of the most densely populated areas on Earth — when Israel’s military began its ground incursion in the city on 7 May. 

The UN estimates that 800,000 Palestinians have been displaced from Rafah, as at 18 May. 

Read more in Daily Maverick: Israel to expand military operation in Rafah; Yellen red-flags threat to cut off Palestinian banks

Before Israel concluded its argument before the court on 18 May, German Judge Georg Nolte had asked Israel to provide information on the humanitarian conditions in its designated evacuation zones, in particular, Al Mawasi, “and how it would ensure safe passage to these zones” and the provision of humanitarian aid and assistance to all Palestinian evacuees. 

Israel provided an eight-page response to Nolte’s question, which the Court found on Friday to be insufficient. (South Africa’s lawyers, by contrast, filed a 61-page response to Israel’s argument.) 

British jurist Malcolm Shaw and Yaron Wax look on at the ICJ, during a ruling on South Africa's request to order a halt to Israel's Rafah offensive in Gaza on 24 May 2024. REUTERS/Johanna Geron

‘Not sufficiently addressed concerns’

“On the basis of the information before it, the court is not convinced that the evacuation efforts and related measures that Israel affirms to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah Governorate, are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah,” read the order. 

“The court observes that Israel has not provided sufficient information concerning the safety of the population during the evacuation process, or the availability in the Al-Mawasi area of the necessary amount of water, sanitation, food, medicine and shelter for the 800,000 Palestinians that have evacuated thus far. Consequently, the Court is of the view that Israel has not sufficiently addressed and dispelled the concerns raised by its military offensive in Rafah,” it continued. 

South Africa’s Department of International Relations and Cooperation Director-General, Zane Dangor welcomed the court’s decision. 

“The court essentially ordered Israel to halt its operations in the Rafah area to ensure no further harm comes to Palestinians as a result of Israel’s military actions and the denial of lifesaving food and medication in that area and the whole of Gaza,” he said. 

“This order is groundbreaking as it is the first time that explicit mention is made for Israel to halt its military action in any part of Gaza – this time specifically in Rafah. 

“While legally the court could not use the term ceasefire… this is de facto calling for a ceasefire. It is ordering the major party in the conflict to end its belligerent action against the people of Palestine,” Dangor continued. 

.@DIRCO_ZA Director-General Mr. Zane Dangor @Zwandid articulating #SouthAfrica??'s response to today's ruling by the @CIJ_ICJ ordering #Israel to stop military operations in #Rafah. pic.twitter.com/Wy8KnfQkCZ

— Clayson Monyela (@ClaysonMonyela) May 24, 2024

Welcoming the ICJ ruling president Cyril Ramaphosa said: “We are gravely concerned that Israel has restricted necessary levels of aid from entering Gaza and has systematically targeted aid and aid infrastructure within Gaza.

“This case is thus focused on the ordinary Palestinians in Gaza who are now facing their seventh month of suffering through collective punishment for something for which they have no individual responsibility.”

“We call on all State Parties to observe the prescripts of international law, which obliged them to reconsider their relations with Israel following the Court findings.

“Under international law, Israel is obliged to implement the Court’s Order, as well as the previous orders of 26 January (as reaffirmed by the Court on 16 February) and 28 March. Similarly under international law, the prohibition on genocide is a peremptory norm from which no derogation is permitted, for any reason whatsoever,” said President Ramaphosa.

The ICJ order follows the decision by the International Criminal Court (ICC) prosecutor Karim Khan earlier this week, to seek warrants of arrest for both Hamas leaders and top Israeli officials, including Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, for war crimes and crimes against humanity. DM