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World’s gaze to return to Peace Palace as ICJ hears arguments by SA and Israel on Rafah

World’s gaze to return to Peace Palace as ICJ hears arguments by SA and Israel on Rafah
Internally displaced Palestinians arrive to Khan Younis after leaving Rafah following an evacuation order issued by the Israeli army, southern Gaza Strip, 11 May 2024. More than 34,900 Palestinians and over 1,455 Israelis have been killed, according to the Palestinian Health Ministry and the IDF, since Hamas militants launched an attack against Israel from the Gaza Strip on 07 October 2023, and the Israeli operations in Gaza and the West Bank which followed it. EPA-EFE/MOHAMMED SABER
Victoria O’Regan
By Victoria O’Regan
15 May 2024
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South Africa will present its arguments on Thursday, 16 May 2024, asking the International Court of Justice to order Israel to ‘immediately withdraw and cease its military offensive’ in Rafah.

South Africa hopes to secure a binding order from the International Court of Justice (ICJ) this week to force Israel to cease its military incursion in the southern Gaza city of Rafah. 

In a request filed on 10 May, Pretoria made an urgent appeal to the ICJ for the indication of additional provisional measures and the modification of provisional measures previously prescribed by the court on 26 January and 28 March 2024. 

In its application to the court, South Africa asked the ICJ to order Israel to “immediately withdraw and cease its military offensive” in Rafah. 

It also requested the court to order Israel to “take all effective measures to ensure and facilitate unimpeded access” to Gaza for officials of the United Nations and other international organisations to provide humanitarian aid and access for journalists and investigators. 

Read more in Daily Maverick: Israel-Palestine War

On Tuesday, 14 May, the ICJ announced it would hold public hearings at the Peace Palace in The Hague, on South Africa’s request. 

South Africa will present its arguments on 16 May from 3pm to 5pm. Israel will do the same on 17 May from 10am to 12pm.




Presidency spokesperson Vincent Magwenya said Pretoria was confident the court would grant South Africa’s request for additional measures. 

“Indeed, we are confident that the court will grant the additional orders we are seeking. Israel has not only failed to comply with the previous orders, but it has escalated its genocidal acts against Palestinians,” Magwenya told Daily Maverick. 

He said the Israeli Defence Forces’ (IDF) military incursion in Rafah “is going to exacerbate the loss of life and human suffering”.

Rafah From left: Department of International Relations and Cooperation spokesperson Clayson Monyela, South African ambassador to the Netherlands Vusi Madonsela, department director-general Zane Dangor and International Relations Minister Naledi Pandor address the media after the International Court of Justice delivered an order on South Africa's genocide case against Israel in The Hague on 26 January 2024. (Photo: Michel Porro / Getty Images)



“Therefore, every available legal instrument must be utilised to put a stop to the indiscriminate killing of innocent people. We also hope that once granted, the new orders will encourage the international community to do more to stop the genocide in Gaza, particularly the allies of Israel, who cannot continue supporting this mass carnage of the Palestinian people,” added Magwenya. 

He said the Department of International Relations and Cooperation’s director-general, Zane Dangor, would be leading the South African delegation, along with the South African ambassador to the Netherlands, Vusi Madonsela, and members of South Africa’s legal team. 

See Daily Maverick reporter Ferial Haffajee’s graphic of South Africa’s legal team below for a refresher. 

IJC Rafah

Timeline of South Africa’s case against Israel


South Africa filed an application at the ICJ – the principal judicial organ of the UN – on 29 December 2023, accusing Israel of genocide in its war on Gaza, and seeking to halt its attack on the enclave, pending the court’s final decision on whether Israel is perpetrating genocide. 

South Africa’s 84-page application detailed what it said were atrocities committed by the IDF against the civilians of Gaza, where more than 34,500 people have been killed and more than 78,000 wounded, according to the health ministry, which is controlled by Hamas. 

Read more in Daily Maverick: How South Africa seeks an order to stop the carnage in Gaza and prevent a genocide

About 1,200 people were killed in Israel and 253 people taken hostage when Hamas launched an attack on 7 October 2023, Reuters reported. 

On 12 and 13 January 2024, South Africa and Israel presented their respective arguments at the Peace Palace in The Hague. 

Read Daily Maverick reporters Ferial Haffajee and Peter Fabricius’s reports on the arguments here:

On 26 January 2024, South Africa persuaded the ICJ that there was a plausible case of genocide committed by Israel against Palestinians in Gaza. 

Palestinians search for missing people under the rubble of a destroyed building following an Israeli air strike in the Al Nuseirat refugee camp, central Gaza Strip, on 14 May 2024. (Photo: EPA-EFE / Mohammed Saber)



Gaza Israel This United Nations school was destroyed in an air strike in the Al Nuseirat refugee camp, central Gaza Strip, on 14 May 2024. (Photo: EPA-EFE / Mohammed Saber)



The court ordered Israel to prevent genocide, to prevent and punish incitement to genocide, and to increase humanitarian aid to Gaza. 

However, it did not order Israel to implement a ceasefire – the ultimate provisional measure South Africa had requested. 

In its judgment, the ICJ said it was “gravely concerned about the fate of the hostages abducted during the attack in Israel on 7 October 2023, and held since then by Hamas”, and called for their “immediate and unconditional release”.

South Africa made an urgent application to the ICJ on 12 February 2024 for additional provisional measures to be ordered against Israel to prevent harm to civilians in Rafah. The ICJ declined this request on 16 February, saying Israel remained bound by the court’s order of 26 January. 

On 6 March 2024, South Africa again made a request to the court for additional provisional measures to be ordered against Israel, this time to prevent “full-scale famine” in Gaza. The ICJ issued fresh orders in response to this request on 28 March, calling on Israel to open the humanitarian corridors to Gaza to allow the “unhindered provision” of aid. 

Israel opposed South Africa’s 6 March request, calling it – in papers made public by the court – an attempt to relitigate what the ICJ had already decided. 

South Africa’s main genocide case against Israel is unlikely to start until next year, The New York Times reported. The case is expected to take up to four years to produce a sentence, according to Al Jazeera.

Several other countries have announced that they will join South Africa’s case against Israel, including Turkey, Colombia and – most recently – Egypt. 

‘Shaping public opinion’


Speaking to Daily Maverick on Wednesday night, the Southern Africa Litigation Centre’s international justice cluster lead, Dr Atilla Kisla, said he believed “the court will probably be cautious about the provisional measures it will make.

“And, of course, one of the court’s priorities is not to prejudice the merits of the case,” he said. 

In the court’s 28 March order, the ICJ underlined that the findings of the provisional measures from that order should not be interpreted as prejudice to the findings in terms of the compliance of Israel with previous provisional measures. 

Kisla said while Pretoria may be confident, it all comes down to the “legal test” of “whether there has been a change in the situation” in Gaza. 

south africa icj gaza Minister of International Relations Naledi Pandor and South African ambassador to the Netherlands Vusimuzi Madonsela at the International Court of Justice in The Hague on 26 January 2024. (Photo: EPA-EFE / Remko de Waal)



President Joan Donoghue and other judges during a ruling by the International Court of Justice in The Hague on a request by South Africa for emergency measures for Gaza, on 26 January 2024. (Photo: EPA-EFE / Remko de Waal)



“South Africa is, of course, in their submissions focusing on the situation in Rafah – that the border crossings have been closed, that there are ongoing airstrikes in Rafah, [and] that there are tanks rolling in. 

“The court will have to consider these aspects, and again, South Africa has relied heavily on UN entities and UN reports – which I think strengthens their case because they are citing recognised and credible sources of information,” he said. 

“We will have to see if the court will issue provisional measures or modify existing ones.” 

This week, the UN denied reports that the death toll of women and children in Gaza had been revised down, after Gaza’s health ministry’s revised totals of those killed appeared on the UN’s office for coordination of humanitarian affairs’ website, The Guardian reported. 

Internally displaced Palestinians arrive in Khan Younis after leaving Rafah following an evacuation order issued by the Israeli army on 11 May 2024. (Photo: EPA-EFE / Mohammed Saber)



A spokesperson for the UN told The Guardian that the confusion resulted from Gaza’s ministry of health’s new way of classifying those not yet fully identified.

Read more in Daily Maverick: Israel-Palestine War

Kisla said Israel is likely to argue again that there is no basis for the allegations South Africa is making in its submissions, and that it is compliant with international law as well as the previous provisional measures ordered by the court. 

He added that “from a political standpoint, this case and this hearing – it helps of course to shape the public opinion. And that is likely to have an impact on the standpoint of many allies and their arms transfers.”

Kisla said there is generally no time limit on when the ICJ must make its decision. However, given the court’s turnaround on issuing orders concerning South Africa’s earlier requests, he believes a decision could be made fairly soon. 

“I wouldn’t be surprised if it’s within a few days,” he said. DM

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