On Thursday, the International Court of Justice (ICJ) began public hearings on South Africa’s urgent request for emergency provisional measures to immediately stop Israeli military operations in Rafah, a city in southern Gaza. Since early May, intensified military actions have caused over 600,000 people to flee the area.
This request is part of South Africa’s broader case accusing Israel of violating its obligations under the Genocide Convention.
Filed on May 10, the request asks the ICJ to order Israel to
"immediately withdraw and cease its military operations in the Rafah governate" and to allow international aid workers and journalists access to the area.
South Africa presented its arguments on Thursday afternoon, with Israel scheduled to respond on Friday. The ICJ, based in The Hague, serves as the principal judicial organ of the UN.
South Africa’s request emphasizes the need for “unimpeded access” to Gaza for UN officials, aid workers, and journalists to assess conditions and preserve evidence. This request aims to ensure that Israel's military does not obstruct such access. Additionally, South Africa has asked the court to require Israel to submit a report within a week detailing the steps taken to implement these measures.
South Africa's ambassador to the Netherlands, Vusimuzi Madonsela, highlighted the dire situation in Gaza, stating that the country returned to the ICJ to stop what it describes as an ongoing genocide, with over 35,000 Palestinians killed and much of Gaza in ruins.
During the hearing, South Africa’s representatives argued that Israel's declared "safe zones" in Gaza are not safe, accusing Israel of continuing genocide through military actions and man-made starvation.
The ICJ has issued several orders for provisional measures since January, calling on Israel to prevent acts of genocide and allow humanitarian aid into Gaza. The court's decisions on these provisional measures are mandatory but lack enforcement mechanisms.
What Israel said:
Israel’s representatives told the court their country was fighting a war of self-defence it “did not want and did not start”.
They said Israel had made “extraordinary” efforts to protect civilians, and had complied with orders from the court to let more aid into Gaza.
South Africa … has a clear ulterior motive when it asks you to order Israel to stay away from Rafah and to withdraw all its troops from Gaza,” Noam told the court. “It does so in order to obtain military advantage for its ally, Hamas.”
The ICJ is expected to hear Israel's response on Friday and will then decide on whether to issue a new order. The final judgment on the case is likely to take years.
The Judgement:
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
Request for the indication of additional provisional measures and the modification
of previous provisional measure
Conclusion of the public hearings held on Thursday 16 May and Friday 17 May 2024
THE HAGUE, 17 May 2024.
The public hearings on the request filed by South Africa on 10 May 2024 for the indication of additional provisional measures and the modification of provisional measures previously prescribed by the Court in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) concluded today with the statements of Israel.
The delegation of South Africa was led by HE Mr Vusimuzi Madonsela, Ambassador of the
Republic of South Africa to the Kingdom of the Netherlands, and Mr Cornelius Scholtz, Legal
Counsellor, Embassy of the Republic of South Africa to the Kingdom of the Netherlands, as
Co-Agents.
The delegation of Israel was led by Mr Gilad Noam, Deputy Attorney General for
International Law, Ministry of Justice of the State of Israel, and Ms Tamar Kaplan Tourgeman, Acting Legal Adviser of the Ministry of Foreign Affairs of the State of Israel, as Co-Agents.
At the end of the presentation of their arguments, the Co-Agents of South Africa and Israel made the following requests to the Court, on 16 and 17 May respectively.
For South Africa:
“South Africa respectfully requests the Court to order the State of Israel, as a State party to the Genocide Convention and as a party to these proceedings, to:
(1) 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 in 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.
(2) immediately, and further to its obligations under provisional measure 4 of the
Court’s 26 January 2024 Order and provisional measures 2 (a) and 2 (b) of the Court’s 28 March 2024 Order, take all effective measures to ensure and facilitate the unimpeded access to Gaza of United Nations and other officials engaged in the provision of humanitarian aid and assistance to the population of Gaza, as well as fact-finding missions, internationally mandated bodies and/or officials,
investigators, and journalists, in order to assess and record conditions on the ground in Gaza and enable the effective preservation and retention of evidence; and ensure
that its military does not act to prevent such access, provision, preservation or
retention;
(3) submit an open report to the Court (a) on all measures taken to give effect to these
provisional measures within one week as from the date of this Order; and (b) on all
measures taken to give effect to all previous provisional measures indicated by the
Court within one month as from the date of this Order.”
For Israel:
“The State of Israel requests the Court to reject the request for the modification
and indication of provisional measures submitted by the Republic of South Africa.”
The Court will now begin its deliberation.
The Court’s decision will be delivered at a public sitting, the date of which will be announced in due course.
___________
History of the proceedings
On 29 December 2023, South Africa filed an Application instituting proceedings against Israel concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the
Gaza Strip.
The Application also contained a request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court.
The Applicant requested the Court to indicate provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage
in genocide, and to prevent and to punish genocide”.
On 26 January 2024, the Court delivered its Order on South Africa’s request.
On 16 February 2024, the Court issued a decision on a request by South Africa for additional provisional measures dated 12 February 2024.
On 28 March 2024, the Court indicated additional provisional measures, following a further request from South Africa, dated 6 March 2024, for the indication of additional provisional measures and/or the modification of its Order of 26 January 2024.
On 10 May 2024, South Africa filed a request for the indication of additional provisional
measures and the modification of provisional measures previously prescribed by the Court.
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