By Lehlohonolo Lehana.
South Africa hopes to secure a binding order from the International Court of Justice (ICJ) 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.
South Africa accused Israel on Thursday, at the top UN court of stepping up what it called a “genocide” in Gaza, urging the court to order a halt to Israel’s assault on Rafah.
“South Africa had hoped, when we last appeared before this court, to halt this genocidal process to preserve Palestine and its people,” Vusimuzi Madonsela told the International Court of Justice (ICJ).
“Instead, Israel’s genocide has continued apace and has just reached a new and horrific stage,” he added.
South Africa was kicking off two days of hearings at the Peace Palace in The Hague, home of the ICJ, imploring judges to order a ceasefire throughout Gaza.
Israel will respond on Friday. It has previously highlighted its “unwavering” commitment to upholding international law and described South Africa’s case as “wholly unfounded” and “morally repugnant”.
In a ruling that made headlines around the world, the ICJ in January ordered Israel to do everything in its power to prevent genocidal acts and enable humanitarian aid to Gaza.
But the court stopped short of ordering a ceasefire and South Africa’s argument is that the situation on the ground — notably the operation in the crowded city of Rafah — requires fresh ICJ action.
The operation in Rafah is “the last step in the destruction of Gaza and its Palestinian people”, argued Vaughan Lowe, a lawyer for South Africa.
“It was Rafah that brought South Africa to the court. But it is all Palestinians as a national, ethnical and racial group who need the protection from genocide that the court can order,” he added.
The orders of the ICJ, which rules in disputes between states, are legally binding but it has little means to enforce them.
It has ordered Russia to halt its invasion of Ukraine, to no avail.
South Africa is asking the ICJ for three emergency orders — “provisional measures” in court jargon — while it rules on the wider accusation that Israel is breaking the 1948 UN Genocide Convention.
Prime Minister Benjamin Netanyahu has ordered the Rafah offensive in defiance of US warnings that more than a million civilians sheltering there could be caught in the crossfire.
Netanyahu on Wednesday argued that “we have to do what we have to do” and insisted that mass evacuations there had averted a much-feared “humanitarian catastrophe”.
Just minutes before the court hearings opened, Israel’s Defence Minister Yoav Gallant said the operation in Rafah “will continue as additional forces will enter” the area.
Lawyer Tembeka Ngcukaitobi took the floor, focusing his remarks on Israel’s “genocidal intent” in Gaza.
Not only are Israel’s military attacks in Rafah “genocidal in pattern”, they are consistent with the state of Israel’s “explicit, stated and continuing intent”, he said.
Ngcukaitobi has gone through a series of statements by high-level Israeli officials, including the vice-chairman of the global arm of Israel’s leading Likud party, that he said show “genocidal intent” in Gaza.
He has also displayed to the court a video of Israeli soldiers echoing such calls, including one of a group of soldiers yelling: “Let’s go and destroy Rafah.”
“The destruction of Palestinian life in Gaza is understood by Israeli officials and soldiers,” Ngcukaitobi said.
Ngcukaitobi has said Israel is pressing on with its attacks in Rafah despite “explicit warnings” it could carry “genocidal” consequences.
The operation in Rafah, he said, “is the last stage of total annihilation of Palestinian life.”
Ngcukaitobi added: “For Palestinians to be able to continue to exist as a protected group under the Genocide Convention, they need a place from which to rebuild … Rafah is that place, the last stand.
“Without Rafah, the possibility to rebuild [Gaza] will be lost forever.”
The United Nations agency for Palestinian refugees, UNRWA, said on Wednesday that 600,000 people have fled Rafah since military operations intensified, amid battles and heavy Israeli bombardment in the area.
Pretoria stressed its view that the only way for the existing court orders to be implemented was a “permanent ceasefire in Gaza”.
Israel’s military operations in Gaza were launched in retaliation for Hamas’s unprecedented October 7 attack which resulted in the deaths of more than 1,170 people, mostly civilians, according to an AFP tally of official Israeli figures.
Militants also seized about 250 hostages, 128 of whom Israel estimates remain in Gaza, including 36 the military says are dead.
Israel’s military has conducted a relentless bombardment from the air and a ground offensive inside Gaza that has killed at least 35,233 people, mostly civilians, according to Gaza’s Hamas-run health ministry.