President Donoghue (2nd L) and other judges during a ruling by the International Court of Justice (ICJ) in The Hague, The Netherlands, on a request by South Africa for emergency measures for Gaza, 26 January 2024. EPA-EFE/Remko de Waal 
The International Court of Justice has declined South Africa’s application for additional provisional measures to be taken by Israel to prevent additional harm to civilians during Israel’s assault on the southern Gaza city of Rafah.
But in a decision announced on Friday, the court agreed that the most recent developments and the incoming Israeli offensive in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’, as stated by the United Nations Secretary-General Antonio Guterres.
“This perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures,” the court said.
“The Court emphasizes that the State of Israel remains bound to fully comply with its obligations under the Genocide Convention and with the said Order, including by ensuring the safety and security of the Palestinians in the Gaza Strip.”
The South African government had requested the court for additional provisional measures in a letter sent to the ICJ on 12 February.
It said these additional measures were necessary because of Benjamin Netanyahu’s announcement on 9 February that Israel intended to evacuate the civilians of Rafah to allow the Israeli military to eliminate the four Hamas battalions remaining in the area. South Africa said this assault had begun on Sunday 11 February with “an intense, unprecedented Israeli military assault, with an ongoing threat of yet further intensification of the assault — including by way of an Israeli ground invasion”.
South Africa’s 12 February application to the ICJ noted that Rafah, normally home to 280,000 Palestinians, was currently housing more than half of Gaza's population, estimated at approximately 1.4 million people, approximately half of them children.
“As the International Committee of the Red Cross has made clear, there is "no option" for the evacuation of the Palestinian population in Rafah as "there is nowhere else for the people to go" it said.
And so, it said, it was “gravely concerned that the unprecedented military offensive against Rafah, as announced by the State of Israel, has already led to and will result in further largescale killing, harm and destruction in serious and irreparable breach both of the Genocide Convention and of the Court's Order of 26 January 2024”.
Israel opposed South Africa’s application in a letter to the court in which it stated that South Africa was trying to “re-litigate” the issue already decided upon by the ICJ in its decision of 26 January and so no further provisional measures were needed because the situation in Gaza had not changed since then. It noted that South Africa itself had cited in its application Netanyahu’s announcement that Israel intended evacuating civilians from Rafah before the assault and this showed its intention to protect civilians.
The South African government welcomed the ICJ’s decision and said the court had affirmed SA’s view “that the perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, and has clarified that this includes Rafah”.
In a statement by President Ramaphosa’s spokesperson Vincent Magwenya, the government also said it also noted that the court had said that "the most recent developments in the Gaza Strip, and in Rafah in particular, ‘would exponentially increase what is already a humanitarian nightmare with untold regional consequences’, as stated by the United Nations Secretary-General (Remarks to the General Assembly on priorities for 2024 (7 February 2024).”
It added that;
“The court has accepted:
- That Israel's planned incursions in Rafah would render what is already a humanitarian disaster even more perilous.
- The situation requires compliance with the existing provisional measures.
- Compliance with the existing provisional measures requires the protection of civilians in Gaza including Rafah.
“The court has unequivocally explained that compliance with the existing provisional measures requires Israel to ensure the safety and security of all Palestinians in the Gaza Strip.
“Any decision by Israel to engage in military activities against Palestinians in the current circumstances is a violation of the order of the International Court of Justice.”
“South Africa will continue to use existing channels such as the United Nations Security Council to ensure full and effective implementation of the existing provisional measures.”
Veteran ICJ litigator Francis Boyle, law professor at the University of Illinois, said:
“It’s not yes or no. This is a formal Decision by the Court. Apparently no dissents. Very helpful language. RSA asked for a formal Order for additional provisional measures of protection for the Palestinians. They didn’t get that. But they did get a formal Decision by the Court. It’s important that the ICJ references Rafah and quotes the UN Secretary General saying Israeli actions would “exponentially increase what is already a humanitarian nightmare with untold regional consequences” and referred to Rafah as a “perilous situation” for exponentially increased genocide.
"Given the proximity to the prior Order, this Decision may be the best South Africa could get. It can use this ICJ Decision at the Security Council to support the Resolution that Algeria has already circulated there in order to enforce the World Court’s Order of January 26 against Israel. If the Zionists start driving Palestinians into Egypt, South Africa can ask the Court again for new provisional measures of protection. Other nations can also sue Israel for genocide regarding Rafah in particular and Gaza in general, request an Emergency Hearing by the Court, and ask for provisional measures of protection specifically with respect to Rafah and the rest of the Palestinians in Gaza.
"The Organisation of Islamic Cooperation got Gambia to sue Myanmar at the ICJ for genocide and there’s no excuse for the ICO not moving to so protect Palestine and the Palestinians. Israel is threatening catastrophic genocide against the 1.5 Million Palestinians at Rafah. The Biden administration is saying they don’t want Israel to move into Rafah until certain conditions are met. Their plan may be to claim such conditions are met with these camps they are building in the Sinai Desert, effectively facilitating the ethnic cleansing of the Gazans into the Sinai and thus ushering in Nakba II for the Palestinians.”
The court had endorsed Guterres’s observation that Israel’s assault on Rafah “ would exponentially increase what is already a humanitarian nightmare with untold regional consequences.”
He said South Africa would be able to take the ICJ’s decision to the UN Security Council to seek action against Israel if it failed to comply with the 26 January orders and, if the US vetoed any action in the Security Council, South Africa would be able to use the ICJ decision to seek a resolution in the UN General Assembly. DM