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MIDDLE EAST CRISIS

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

South Africa seeks urgent ICJ intervention to halt Israel's military actions in Gaza, with Pretoria confident of securing additional measures to stop what it calls Israel's "genocidal acts" against Palestinians, as the legal battle heats up in The Hague.
World’s gaze to return to Peace Palace as ICJ hears arguments by SA and Israel on Rafah A Palestinian family at a window overlooking a destroyed building following an Israeli air strike in the Al Nuseirat refugee camp, central Gaza Strip, on 14 May 2024. According to the Palestinian Civil Defence, more than 18 Palestinians were killed in the strike, with a dozen more missing under rubble. (Photo: EPA-EFE / Mohammed Saber)
Victoria O’Regan
By Victoria O’Regan
15 May 2024
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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”.

From left: Department of International Relations and Cooperation (Dirco) spokesperson Clayson Monyela; South African Ambassador to the Netherlands Vusi Madonsela; Dirco director-general Zane Dangor; and Dirco Minister Naledi Pandor address the media after the International Court of Justice (ICJ) delivered an order on South Africa's genocide case against Israel on January 26, 2024 in The Hague, Netherlands. (Photo by Michel Porro/Getty Images)
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 Al Nuseirat refugee camp, central Gaza Strip, 14 May 2024. According to the Palestinian Civil Defence, more than 18 Palestinians were killed in an overnight Israeli air strike in Al Nuseirat camp, with a dozen more missing under the rubble of a destroyed building. More than 35,000 Palestinians and over 1,455 Israelis have been killed, according to the Palestinian Health Ministry and the Israel Defense Forces (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. (Photo: EPA-EFE / MOHAMMED SABER)
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)
A view of a destroyed United Nations school following an air strike in Al Nuseirat refugee camp, central Gaza Strip, 14 May 2024. At least six people were killed in the strike which hit the UNRWA (United Nationas Relief and Works Agency for Palestinians in the near east) school, according to the Palestinian Civil Defense in Gaza. More than 35,000 Palestinians and over 1,455 Israelis have been killed, according to the Palestinian Health Ministry and the Israel Defense Forces (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. (Photo: EPA-EFE / MOHAMMED SABER)
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 African Minister of International Relations Naledi Pandor and SA 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)
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 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
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 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
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

Comments (4)

markgcfriedman May 16, 2024, 01:14 AM

The article is wrong in its assertion that Israel is at rik of exposing Palestiniains to plausible genocide. In fact, the former president of the International Court of Justice, Joan Donoghue, clarified in a recent interview the exact implications of the court’s interim ruling in January on South Africa’s allegations that Israel is committing genocide against the Palestinians in Gaza. Donoghue, who presided over the hearings and the issuing of provisional measures by the court against Israel, sought to clarify a misunderstanding about the nature of the ICJ’s January decision and the court’s orders, and stated explicitly that the ruling did not mean that the court believed it was “plausible” that Israel was committing genocide.

jbest6787@gmail.com May 16, 2024, 06:31 AM

Why is SA so obsessed with Israel. There are relevant parties in the middle east and USA who should be leading this process. You have Regional Arab body consisting of Arab countries who should be helping Palestine get funds to rebuild. SA, I am sorry to say is grandstanding or seeking attention at the expense of the victims of this war on both sides. SA didn't even recognise the first transgression within Israel by Hamas. The death and kidnapping of Israeli citizens doesn't not even feature on the moral compass of this ill conceived litigation. SA should be considering the plight of toddlers in the Eastern Cape who affected by malnutrition due to the defeating collapse of the rural economy or lack of development of the rural economies of the various rural provinces. But, no Gucci politicians need their spotlight and flashing cameras in the corridors of the ICJ. But I am just saying, I am not perfect. Do whatever you want, with the tax money and stuff. I don't even pay tax. Because I am self employed

Kenneth FAKUDE May 16, 2024, 07:59 AM

Its called international relations, it contributed a lot to our democracy today, foreign relations can be a voice of the voiceless.

jbest6787@gmail.com May 16, 2024, 09:15 AM

What about Marikana? Will the people responsible for Marikana massacre be taken to ICJ?

skyfriedrice@gmail.com May 16, 2024, 02:22 PM

If someone experiences injustice, and you go to help them or support them, can that support be nullified or considered pointless or wrong in any way, if you aren't also supporting every... single... other... unjust situation in the world? No. The constant retorts of "It's a religion hatred thing" or "Why aren't you also helping x,y,z" has xero bearing at all in these debates on what is happening in Gaza. Zero.

jbest6787@gmail.com May 16, 2024, 02:55 PM

But SA is a country that I love so much. But I find their foreign policy framework to be inspired by a sort of infantilism founded on naiveity. It's teenagers got together after indulging in space cookies and decided to craft our foreign policy objectives. A bunch of dilitantes if you ask me. But you didn't

skyfriedrice@gmail.com May 16, 2024, 04:02 PM

James, you were talking about Marikana. Now it's about SA's foreign policy. The country that you live in. Your point seems to be that SA and it's people should not involve themselves in other country's disputes, while you also say that their involvement is only valid if they also involve themselves in other disputes too. So as a South African, based on your own logic, why are you so pointedly involved in the discussion about the war in another hemisphere?

skyfriedrice@gmail.com May 16, 2024, 04:02 PM

James, you were talking about Marikana. Now it's about SA's foreign policy. The country that you live in. Your point seems to be that SA and it's people should not involve themselves in other country's disputes, while you also say that their involvement is only valid if they also involve themselves in other disputes too. So as a South African, based on your own logic, why are you so pointedly involved in the discussion about the war in another hemisphere?

skyfriedrice@gmail.com May 16, 2024, 11:37 AM

You say "SA, I am sorry to say is grandstanding or seeking attention at the expense of the victims of this war on both sides. SA didn’t even recognise the first transgression within Israel by Hamas. The death and kidnapping of Israeli citizens doesn’t not even feature on the moral compass of this ill conceived litigation. SA should be considering the plight of toddlers in the Eastern Cape who affected by malnutrition due to the defeating collapse of the rural economy or lack of development of the rural economies of the various rural provinces. " 1. How can this court action's effects be "at the expense of the victims of both sides"? 2. Do you really think that " the first transgression within Israel by Hamas" is "the first transgression from either side? There is a much bigger, slightly older issue at hand - land and freedom. 3. How many toddlers and their mothers are dying in the Eastern Cape at a rate of 61 per day for the last 7 months - that is the most recently reduced count according to the UN?

jbest6787@gmail.com May 16, 2024, 03:07 PM

What you are saying is true, Israel may have overstepped some international law, and the death of so many Palestinians is a very painful reality

Malcolm McManus May 16, 2024, 07:34 AM

I don't see how signatures on a piece of paper will achieve anything. Israel will most likely invade Rafah regardless. They are already starting to do it. Same with Russia in Ukraine. They ignore the ICJ but South Africa says nothing. Missiles are being launched daily by hamas into Israel as well as by Hezbollah from Lebanon. Does Naledi expect Israel to sit back and do nothing. What do the rest of the flag wavers all over the globe who chant "from the river to the sea", actively campaigning for genocide against Israel expect the Israelis to do. The Hamas cowards don't fight out in the open. Its extremely difficult to fight them without innocent casualties despite all the great lengths taken to avoid civilian deaths. The ANC on their selective campaign are just wasting the South African tax payers money. We need that money for our own impoverished people, many who are also dying from various areas of neglect. Poverty, hunger and crime. Much of this is being done to garner votes from the Western Cape muslim community. I understand the desperate need to save lives in Palestine, but surely there are other ways to achieve peace instead of taking sides. Naledi would have been better off engaging with both sides for peace a long time ago instead of waiting for an October the 7th and the aftermath, then taking sides in this decades old conflict. She is now backing a cause for a reason, instead of a reason for a cause.

skyfriedrice@gmail.com May 16, 2024, 11:41 AM

You say "Does Naledi expect Israel to sit back and do nothing. What do the rest of the flag wavers all over the globe who chant “from the river to the sea”, actively campaigning for genocide against Israel expect the Israelis to do." Quite simple really - give back land, security and freedom that was forcibly taken away from them when Israel was formed. Not kill civilians at a ratio of approximately 1 to 17 (depending on what figures you read) Israelis vs Palestinians. Not reduce MOST healthcare facilities, MOST homes, farmland and other infrastructure to rubble.

marc36 May 16, 2024, 12:53 PM

Luke and his simple solutions. Believing all pro-pali propaganda until the next cause he can look up on Wikepedia and support from his keyboard, without any skin in the game. This one is easy, because its the world's oldest hatred, and is a light sleeper. Most people like to think they would have been Oskar Schindler, but in reality most are Lukes if they were 1938 Berlin citizens. We see you.

skyfriedrice@gmail.com May 16, 2024, 02:17 PM

Firstly, please stop your assumption that every criticism of the Israeli government's actions and decisions are based on hatred for a generalised group of people. There is no reason to group everyone of a certain religion up, and just arbitrarily hate them. Secondly, if what I'm reading as facts - death toll and destruction of civilian infrastructure is propaganda, please provide evidence otherwise. There is propaganda on both sides most definitely. But I think we are all aware that what's happening now in Gaza is not proportionate to what happened in Israel on Oct 7.

Noelsoyizwaphi@gmail.com May 18, 2024, 11:05 PM

Granted, in every war situation, the first casualty is the truth as lies will come from all sides. However, in this particular war, only Israel has a fundamental legal obligations to abide by during its campaign against Hamas, the International Humanitarian Law. South Africa is simply saying to Israel "keep your actions check". In fact, Israel should thank South Africa because it provides Israel the with the perfect platform to explain its actions in Palestine. South africa's ICJ actions must be applauded

Malcolm McManus May 16, 2024, 02:41 PM

Besides DM, do you watch global news, debates and history on this conflict.

Malcolm McManus May 16, 2024, 03:47 PM

Israel won't give up their land, or whomever s land you think it is. Nor will they allow Palestine to keep sending rockets into their/whomever s land they think/know is theirs. So what should the ever so passionate Naledi do about the problem instead of wasting South Africa's desperately needed tax revenue. The disproportionate killing will continue, since to win wars one needs to be disproportionate. This leaves us with negotiations to save 10s of thousands more innocent lives not only in Rafah but also potentially in Lebanon. Naledi has much sway with Hamas since she hosts them quite frequently and very recently. But keep on running to the ICJ if she must. Its unlikely to save any lives, which would be the advisable thing to do, no matter who truly has the right to the land. Sad but true. The same goes for all the ungrateful people all over the world, who ran away from their countries of birth to seek freedom in the West from all that is wrong in their own countries, only to vigorously wave flags on behalf of a conflict most of the gullible dimwits know very little about. We can debate this all we want, but the fact is many people are dying and will continue to die because of stubborn unwillingness for well positioned people on both sides to compromise.

skyfriedrice@gmail.com May 16, 2024, 05:25 PM

I agree with everything you've said (except for the attacks on "dimwits" and our politicians). Oh, except for the one scenario that you haven't addressed: Israel actually compromising and making an offer of some sort for a two-state solution or a shared land. One never knows, if that one day ever happens (I don't think it ever has, but I may be wrong), don't you think it's worthwhile, and might just stop the rocket attacks (that have killed how many? While 500 Palestinians have been killed in just the West Bank since Oct 7 - not Gaza, the West Bank)?

marc36 May 16, 2024, 08:42 PM

Did Luke's googling yet extend to Israel's withdrawal (100% judenrein) of Gaza in 2005 (all Israeli inthe Gaza Strip were unilaterally dismantled and Israeli settlers and army evacuated from inside the Gaza Strip, by Israel). Guess what happened the very next day, from inside Gaza Luke? No that you've guessed right (they fired rockets at Israel as a thank you present), guess how many rockets have been fired indiscriminately at the land of Israel in general (not at military targets specifically), since then? Seriously Luke, please find another cause to google and pontificate about.

Geoff Coles May 16, 2024, 09:54 AM

Reading UK newspapers, it seems the UN reports that the Hamas Health Ministry figures of deaths and injuries are grossly exaggerated.... Ferial is blind to anything that doesn't suit her narrative, not the only one either Last week Israel came under attack from rockets fired from Gaza by Hamas.

marc36 May 16, 2024, 12:57 PM

"According to an infographic published in OCHA’s daily report on May 6, the number of women killed in the fighting was said to be 9,500, while the organization, which admits to relying on figures from the Hamas-run Ministry of Health in Gaza, claimed that 14,500 children had been killed since the war began on Oct. 7. Two days later, in its May 8 report, the UN agency appeared to have cut the number nearly in half, showing instead that some 4,959 women and 7,797 children had been killed so far in the war, which began after thousands of Hamas-led terrorists infiltrated southern Israel from Gaza, slaughtering more than 1,200 people, mostly civilians, and taking some 240 people hostage. While the numbers on both sides remain high – the overall death count in Gaza is said by the Hamas-controlled ministry of health to have almost reached 35,000, with more believed to be buried under the rubble of destroyed buildings – the sudden and unexplained change in numbers is alarming. "

marc36 May 16, 2024, 12:57 PM

"According to an infographic published in OCHA’s daily report on May 6, the number of women killed in the fighting was said to be 9,500, while the organization, which admits to relying on figures from the Hamas-run Ministry of Health in Gaza, claimed that 14,500 children had been killed since the war began on Oct. 7. Two days later, in its May 8 report, the UN agency appeared to have cut the number nearly in half, showing instead that some 4,959 women and 7,797 children had been killed so far in the war, which began after thousands of Hamas-led terrorists infiltrated southern Israel from Gaza, slaughtering more than 1,200 people, mostly civilians, and taking some 240 people hostage. While the numbers on both sides remain high – the overall death count in Gaza is said by the Hamas-controlled ministry of health to have almost reached 35,000, with more believed to be buried under the rubble of destroyed buildings – the sudden and unexplained change in numbers is alarming. "