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South Africa’s legal team asks ICJ to order halt to all Israeli military activity in Gaza Strip

South Africa’s legal team asks ICJ to order halt to all Israeli military activity in Gaza Strip
South African and Israeli delegations sit at the International Court of Justice (ICJ), at the start of a hearing where South Africa requests new emergency measures over Israel's attacks on Rafah, as part of an ongoing case South Africa filed at the ICJ in December last year accusing Israel of violating the Genocide Convention during its offensive against Palestinians in Gaza, in The Hague Netherlands May 16, 2024. REUTERS/Yves Herman
Victoria O’Regan
By Victoria O’Regan
16 May 2024
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Advocate Adila Hassim told the International Court of Justice on Thursday that South Africa seeks an explicit order that Israel cease its military activity ‘not only in Rafah but throughout Gaza’.

South Africa’s high-powered legal team urged the International Court of Justice (ICJ) in The Hague on Thursday to reassert its authority and order Israel to cease its military operations in the Gaza Strip, including in the southern city of Rafah. 

With a delegation led by South Africa’s ambassador to the Netherlands, Vusi Madonsela, and Department of International Relations and Cooperation Director-General Zane Dangor, South Africa appeared before the ICJ on Thursday determined that the only means of ending the carnage in Gaza is for Israel to cease its military operations in the enclave. 

In comparison to South Africa’s congested side of the courtroom, the rows of seats belonging to Israel were bare on Thursday.

South Africa filed its request to the ICJ on 10 May, asking the court to order Israel to immediately withdraw from and cease its military incursion in Rafah. On 14 May, the court announced it would hold public hearings at the Peace Palace in The Hague, at South Africa’s request. 

Read more in Daily Maverick: World’s gaze to return to Peace Palace as ICJ hears arguments by SA and Israel on Rafah

ICJ, John Dugard, Tembeka Ngcukaitobi, Adila Hassim, Israel John Dugard, professor of International Law, lawyer Tembeka Ngcukaitobi and lawyer Adila Hassim, sit ahead of the hearing of the genocide case against Israel brought by South Africa, at the International Court of Justice in The Hague, The Netherlands, on 12 January 2024. (Photo: EPA-EFE/ Remko De Waal)



Making concluding statements for South Africa’s legal team of nine, Madonsela said South Africa’s request had been amended “to reflect the ever-increasing gravity of the situation”.

South Africa, Madonsela said, now requested the court to order Israel to “immediately, and further to its obligations under the court’s previous orders of 26 January 2024 and 28 March 2024, cease its military operations in the Gaza Strip, including the Rafah Governorate, and withdraw from the Rafah crossing and immediately, totally and unconditionally withdraw the Israeli army from the entirety of the Gaza Strip”. 

IJC Rafah team legal team

Additionally, South Africa requested the court to order Israel to “take all effective measures to ensure and facilitate the unimpeded access” to Gaza for United Nations (UN) officials and other international organisations to provide humanitarian aid and assistance, and access for journalists and investigators. 

In its submission, South Africa also asked that Israel file a public report to the court on all measures taken to give effect to any provisional measures the court may order, within one week from the date of the order. 
Whether because of a lack of clarity as to precisely what the orders require or because Israel chooses to ignore them, they have not been effective.

In January, South Africa, failed to obtain a ceasefire order at the ICJ — the principal judicial organ of the UN. The court ordered Israel to prevent genocide, to prevent and punish incitement to genocide and to increase humanitarian aid to the Gaza Strip. But it stopped short of ordering Israel to implement a ceasefire.  

Read in Daily Maverick: Israel-Palestine War

On Thursday, Irish advocate Blinne Ní Ghrálaigh told the court, “Israel continues to kill and harm Palestinians in Gaza, in violation of the court’s orders, while its soldiers and political leaders alike continue to publicly express clear genocidal intent towards them. 

“It is self-evident that the provisional measures indicated in the court’s previous orders ‘do not fully address the consequences arising from the changes in the situation’ that now pertain. The severity of the situation involving ‘horrific human suffering’ mandates that the court make explicit that which was implicit in its previous orders, and that it now orders Israel to cease its military operations in unequivocal, express terms. 

“Nothing else will suffice, Ghrálaigh said.

Deputy attorney general for international law Gilad Noam, principal deputy legal adviser in the Israeli home affairs ministry Tamar Kaplan Tourgeman and legal adviser with the Embassy of Israel in the Netherlands Avigail Frisch Ben Avraham at the International Court of Justice on 16 May 2024. (Photo: Reuters / Yves Herman)



ICJ Gaza Israel Judge Nawaf Salam, president of the International Court of Justice, speaks at the start of the hearing at which South Africa requested new emergency measures over Israel's attacks on Rafah on 16 May 2024. (Photo: Reuters / Yves Herman)



Professor of Public International Law at Oxford University, Vaughan Lowe KC, opened for South Africa, telling the court that South Africa was again appearing before it “because the Palestinian people are facing genocide in Gaza, and your [the court’s] orders have not succeeded in protecting them against that”.

“Whether because of a lack of clarity as to precisely what the orders require or because Israel chooses to ignore them, they have not been effective.

“Since the request was made it has become increasingly clear that Israel’s actions in Rafah are part of the end game in which Gaza is utterly destroyed as an area capable of human habitation,” Lowe told the court. 

“This is the last step in the destruction of Gaza and its Palestinian people.” 

Lowe said that there was “no credible argument” Israel could make “that this catastrophe is not real”. He said Israel’s right to self-defence did not give the state a right to use unlimited violence and starvation on the people of Palestine. 

“No right of self-defence can ever extend to a right to inflict massive, indiscriminate violence and starvation collectively on an entire group. Second, nothing — not self-defence or anything else — can ever justify genocide. The prohibition on genocide is absolute, a peremptory norm of international law. Third, the court ruled in 2004 that there is no right of self-defence by an occupying state against the territory that it occupies,” Lowe said. 

South African and Israeli delegations sit in front of judges at the International Court of Justice on 16 May 2024. (Photo: Reuters / Yves Herman)


‘Nowhere is safe’


Rafah has been a refuge for 1.5 million Palestinians fleeing Israeli bombardment across the rest of the Gaza Strip over the past seven months, according to UN figures. Earlier in May, Israel issued evacuation orders to Palestinians in the city, before seizing control of the Gaza side of the Rafah border crossing with Egypt, and stepping up its bombardment of Rafah. 

On 15 May, the UN estimated that some 600,000 Palestinians had already fled Rafah. 



South African advocate Max du Plessis set out to the court the recent events that necessitated South Africa’s return to the ICJ — particularly concerning Rafah. 

In its decision on 16 February, in which the court declined a request by South Africa for additional provisional measures relating to Rafah, it noted, however, that the situation in Rafah was already “perilous”, Du Plessis said. 

“Instead of complying with this court’s decisions in January, February and March 2024, Israel has defied this court by trapping, besieging and bombarding an overcrowded Rafah, exacerbating the security and safety of 1.5 million highly vulnerable Palestinians already at grave risk,” he said. 

Addressing the court’s president directly, Du Plessis said, “No one in Gaza is safe — as the United Nations has repeatedly made clear — nowhere in Gaza is safe.”

He argued that Israel’s use of evacuation orders and designation of “humanitarian zones” was merely “performative — they endanger rather than protect civilian life.

“So-called humanitarian zones are not safe, precisely because nowhere in Gaza is safe,” Du Plessis reiterated.

South African and Israeli delegations sit at the International Court of Justice on 16 May 2024, to hear South Africa's request for new emergency measures over Israel's attacks on Rafah. (Photo: Reuters / Yves Herman)


Genocidal conduct


Advocate Adila Hassim explained how Israel’s assault on Rafah, which triggered South Africa’s application, was “inextricably linked to the ongoing genocidal conduct being committed across Gaza”.

Quoting the Polish lawyer, Raphael Lemkin — known for coining the term “genocide” and campaigning for the formation of the Genocide Convention — in his 1944 book, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Hassim said Israel’s latest actions in Rafah, “bring its ‘coordinated plan … aimed at the destruction of the essential foundations of [Palestinian] life’ into Gaza — into horrifying focus.

“We are in the final stages of that ‘coordinated plan’,” she said, “where the ‘different actions’ of Israel — to use Lemkin’s terms — the systematic ‘disintegration of the political and social institutions and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity and even the lives’ of Palestinians have led to the present precipice.

“History warns us what happens next. We cannot simply stand by, waiting for it to happen again,” Hassim said. 

She repeated the genocidal acts she laid out at South Africa’s ICJ hearing in January: 

  • Israel’s continued killing of Palestinians in Gaza, followed by what the UN secretary-general has described as “the worst humanitarian crisis” he had seen in more than 50 years;

  • Israel’s targeting of hospitals, which has caused Gaza’s health system to collapse;

  • The mass graves being uncovered in Gaza; and

  • Israel intensifying its attacks in the north while continuing its Rafah offensive, leaving Palestinians with nowhere safe to go.


“The risks to the people of Gaza are imminent, irreparable and rapidly increasing,” Hassim said. “All of what I have described must stop. Israel must be stopped.”

Israel will argue its case on Friday, 17 May. It has not formally revealed its argument before the hearing, but in response to South Africa’s application to the court in January, it said South Africa had emptied the word “genocide” of its meaning. DM

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