Earlier on May 16th, South Africa presented their oral arguments in the International Court of Justice (ICJ) for the first hearing on their requested emergency provisional measures against Israel for Israel’s recent operations in Gaza, which South Africa claims are genocidal in nature.
On May 17th, Israel provided their defence.
The main points of both nations will be gone over in detail.
Emergency Measures and the Surrounding Context
On May 10th, South Africa requested three emergency provisional measures to be instated against Israel. These measures were called for in response to the beginning of Israel’s offensive upon the southern Gaza city of Rafah.
The assault, promised by Israel for weeks, had been condemned by a number of different nations and international bodies, including the US.
Rafah was established by Israel earlier in the war to be a “safe zone.” This meant when the IDF ordered evacuations in areas it was going to be carrying out operations in, Rafah was oftentimes the place where civilians were ordered to go.
As such, before the beginning of Israeli operations, Rafah had become host to over 1.4 million people. Furthermore, because of the Rafah border crossing on the Gaza border with Egypt, Rafah has been central for the humanitarian operations in the Gaza Strip. It was the primary entry point for aid, and held some of Gaza’s largest remaining hospitals.
Due to Rafah’s safe zone designation, while it has been subject to bombings over the course of the war, the destruction wrought there has been significantly less than the remainder of Gaza.
On May 6th, Israel gave evacuation orders to several areas of eastern Rafah, telling civilians to evacuate to areas in Khan Younis and Al-Mawasi. Notably, Al-Mawasi holds within it sand dunes that have been referred to as “uninhabitable.”
15 hours later, operations began with Israeli strikes and ground incursions. On May 7th Israel seized the Rafah crossing after claiming it had been used by Hamas in order to carry out attacks on Israeli forces, including an attack on, or nearby, the Kerem Shalom crossing two days prior, on May 5th, which killed four Israeli soldiers.
Following Israel’s seizure of the crossing, it was closed. This has heavily restricted the amount of aid that is entering Gaza, and also has given Israel full control over what enters/exits Gaza as they maintain control over all entry/exit points. This, of course, gives Israel control over how much aid enters the Gaza Strip. The Rafah crossing has remained closed.
The UNRWA claimed on Wednesday, May 15th, that approximately 600,000 people had evacuated from Rafah, with thousands more evacuating daily.
While Israel has been carrying out operations in Rafah, they have also been carrying out operations in the remainder of the Gaza Strip, through bombings and through ground forces.
Within the context of Israel’s invasion of Rafah is South Africa’s given reason for requesting emergency provisional measures. The provisional measures, as stated in their initial court filing, are listed below:
- The State of Israel shall immediately withdraw and cease its military offensive in the Rafah Governorate.
- The State of Israel shall immediately 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 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 shall ensure that its military does not act to prevent such access, provision, preservation or retention. - The State of Israel shall 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.
The emergency measures were requested as a part of South Africa’s larger case against Israel, initially filed close to the end of December, which accuses Israel of carrying out genocide in Gaza.
The ICJ twice instated provisional measures against Israel, first in January and again in March, which ordered Israel to, among other things, take action to prevent genocide, take action to prevent and punish incitement to genocide, and allow the unimpeded access and expansion of humanitarian aid to Gaza.
South Africa had initially, in their December court filing, requested the ICJ to order Israel to halt the war. This particular measure was denied, having been determined by the court to not be necessary at the time.
The Arguments of South Africa
South Africa’s arguments are based upon several main points. The primary of which attacks Israel acclaimed exercising of their right to self defence, stating that Israel’s actions go well beyond this right.
South Africa began their hearing by making reference to the “ongoing Nakba”, claiming Israel’s actions are in order to further the displacement of Palestinians. The Nakba, or “the catastrophe” in Arabic, refers to the 1948 mass displacement of Palestinian civilians during the Israeli war of independence (also referred to as the first Arab-Israeli War, or the 1948 Palestine War). Some pro-Palestine elements claim that this displacement is ongoing, referencing the further displacement of Palestinians since 1948.
They continued by justifying the present request for provisional measures by claiming that the previous provisional measures instated were insufficient to meaningfully change the situation on the ground, saying this could be either because a lack of clarity on Israel’s obligations under the measures instated, or simply because Israel had ignored them.
Within the context of South Africa’s accusation of genocide, they claimed that the Israeli invasion of Rafah was the “last step” in their destruction of Gaza. They stated that if Rafah is destroyed, as has been the remainder of Gaza, there will be no starting point for which they can rebuild the strip, and that there will be no hope of forming a viable Palestinian society.
“If Rafah falls, Gaza falls” -South Africa’s lawyers
They continued with this by claiming that the humanitarian situation which has arisen in Gaza goes well beyond Israel’s right to self defence. They claimed that “massive, disproportionate violence and starvation” do not fall within the realms of this right.
South Africa’s lawyers added that any exercising of the right to self defence must be proportionate, and that nothing justifies genocide.
Further attacking Israel’s claim to the right of self defence, South Africa’s legal team made reference to a 2004 advisory opinion given by the ICJ that stated that Israel could not invoke the UN charter’s Article 51, which details a states right to self defence, when acting upon threats from a territory/people that it occupies.
In previous references to this case, which was initially concerning Israel’s construction of a wall in Palestinian territories, Israel has countered this by stating that Israel had withdrawn from Gaza in 2005, and thus could not be considered an occupier of that territory, and thus their right to self defence from Hamas is legitimate.
Again turning their eyes to Rafah, South Africa claimed that Israel’s operations there are in direct violation of previous court orders, namely that which ordered Israel to take action to prevent genocide, and also to facilitate the further entry, and expansion (including through opening more crossings), of humanitarian aid into Gaza. The first of these points, of course, relies upon the belief that Israel’s actions are genocidal, and thus the offensive into Rafah is a piece of this. The second point is largely in reference to Israel’s seizure of the Rafah crossing, which has crippled the entry of humanitarian aid into Gaza.
South Africa then began to detail some of the situation on the ground in Gaza, specifically circumstances caused by Israel’s Rafah operations.
They stated that 600,000 people, approximately 25% of Gaza’s population, have been displaced in just the last few days. This figure comes from the UN, who expanded this number to 630,000 on May 17th, who stated these people have been displaced from Rafah.
South Africa further claimed an expanded assault upon Rafah would “deal a fatal blow” to Gaza’s already severely diminished healthcare system. Israel’s incursions into Rafah have already had harmful effects upon Gaza’s healthcare system, forcing the closure of Rafah’s largest hospital, and the beginning of the evacuation of another. Furthermore, the cut of aid to Gaza has caused hospitals to suffer from a supreme lack of fuel. Due to this, the Palestinian Ministry of Health stated on May 13th that the healthcare system was collapsing.
South Africa further drew attention to ongoing Israeli operations in the north of Gaza, stating that while Israel drew everyone’s attention to Rafah in the south, they were perpetuating abuses and forcing further evacuations in the north. Israeli ground forces have, in recent days, moved into areas in the north in order to carry out further operations against militant forces in the area. Notably, Israel had previously claimed to have established control over these areas, and defeated the militant presences there.
They proceeded to draw an accusation against Israel, accusing them of ignoring the facts on the ground, and of denying the humanitarian crisis itself.
Similar to their initial January hearing, South Africa provided a number of different quotations, and video, that they claimed showcased genocidal intent in Israeli officials. Notably, to prevent and punish incitement to genocide was one of the orders given to Israel by the ICJ in January.
The South African lawyers claimed that Israel has not only failed in this metric to punish it, but has rewarded it and operates with a level of impunity both in the statements of Israeli officials, and in their conduct in Gaza.
“Genocidal rhetoric is not punished, but rewarded by the Israeli government” -South Africa’s lawyers
Also within South Africa’s hearing, was their accusation of Israel’s use of what they termed as “extermination zones,” also known as “kill zones.”
The accusation of the establishment of the “kill zone” refers to a zone in which IDF troops are operating, in which if they find anybody who does not belong to their forces, they are shot and killed. This is said to includes civilians.
The accusation, which is based upon testimonies from various IDF soldiers and defence officials, has been formally denied by Israel. When the reports initially arose in March, the US also denied the accusation, stating they had no credible evidence of this policy.
Prior to delivering their finishing remarks, South Africa iterated that their accusation of genocide is not levelled against any people, religion, or group, but rather the state itself and Israeli military/political leaders.
Most notable of South Africa’s oral hearing is the fact that they expanded their requests for provisional measures. Initially, South Africa had only been requesting a halt to Israel’s offensive into Rafah. However, twice stated in their hearing, South Africa is requesting that Israel halt their offensive in Rafah and the whole of the Gaza Strip, and withdraw their forces from the territory. As previously stated, South Africa requested a halt to Israel’s offensive in their initial court filing, which was denied by the court.
The remaining two provisional measures, requesting the unimpeded access of humanitarian organizations and the submission of reports, remained the same.
The Arguments of Israel
As with South Africa’s, Israel made a number of different points, however several common themes arose within them. Once again, one of Israel’s primary arguments is their acclaimed right to self defence.
Notable of Israel’s presence at the ICJ is that their core legal team was not present. In the beginning of Israel’s defence, the lawyers present stated that this was because they had only been notified on Monday, the 13th, that the provisional measure request would go to an oral hearing, requiring an Israeli presence. Because of the lack of availability of their lawyers, Israel had requested the court date be postponed one week. This request was denied.
Beginning their arguments concerning the case, Israel opened by accusing South Africa of abusing the genocide convention, and portraying a false story to the court devoid of the “facts and circumstances.”
“South Africa presents the court for the fourth time within five months with a picture that is completely divorced from the facts and circumstances” -Israel’s lawyers
This same argument appeared in previous arguments from Israel, where they accuse South Africa of attempting to weaponize the genocide convention, which serves to delegitimize it.
Israel’s lawyers argued that South Africa’s accusations around the circumstances within Gaza ignore the fact that they are at war, and that many of these circumstances have arisen from Hamas’ conduct and method of fighting.
Following these points, the Israeli legal team outlined four different things that they accused South Africa of omitting in their arguments.
Below are listed those points, given in point of view of the Israeli legal team.
Firstly, they stated that Israel is engaged in a defensive war that they did not want, nor one that they started. This war began on October 7th. Hamas continues attacks against Israel, and over the course of the war, approximately 10,000 rockets have been fired from Gaza, into Israel (note that several thousand of these were fired on October 7th, during Hamas’ initial attack). Concerning Rafah, which “in particular is a focal point for ongoing terrorist activity,” there is significant amounts of Hamas infrastructure and a strong militant presence. Referred to as “Hamas’ last stronghold’, Israel’s lawyers provided an array of data concerning rocket fire from Rafah, and infrastructure within it. Israel claimed that:
- Rafah has an extensive tunnel network numbering 700 tunnels. Of these, 50 cross into Egypt which are being used to smuggle in military supplies for Hamas and other Gaza militants.
- Of the 10,000 rockets fired throughout the course of the war, approximately 1,400 of them came from Rafah. Of which, 120 have been fired in the last two weeks. 600 launch sites have been observed in areas in and around Rafah.
- Several Hamas battalions are within Rafah, the remaining bulk of their forces. Further, many of the remaining hostages are believed to be within Rafah.
Continuing on this same point, Israel denied South Africa’s claim of “if Rafah falls, Gaza falls.”
“Only by bringing down Hamas’ military stronghold in Rafah will Palestinian’s be liberated from the clenched grip of the murderous terrorist regime” Israel’s lawyers
They further added that it is Hamas that is preventing Gaza’s Palestinians from living in peace and prosperity, in particular with their denial of ceasefire proposals and their use of “human shields.” Finishing their first point, Israel reiterated their right to self defence, and stated again that an order halting Israel’s military operations would be a denial of this right.
*Note that while Hamas has rejected a number of Israeli ceasefires, this is largely due to Israel’s insistence that any ceasefire established be temporary, rather than permanent. Hamas, in contrast, requests a permanent ceasefire and the withdrawal of Israeli forces from Gaza. These core differences have prevented ceasefire negotiations from being successful on many occasions. Recently, Hamas accepted a ceasefire proposal offered by mediators in Cairo, however this ceasefire would have been permanent, and was thus rejected by Israel.
Second, Israel pointed out that Hamas is not a party to court proceedings, and thus is not bound to any court decisions as Israel would be. If the court orders an end to the war, Israel would have to oblige, however Hamas would be free to continue its attacks against Israel, as they have previously stated would be their goal. The vow they are likely referring to was made by a Hamas political bureau member almost a month after the war began, in early November.
“We must teach Israel a lesson, and we will do it twice and three times. The Al-Aqsa Flood is just the first time, and there will be a second, a third, a fourth” -Ghazi Hamad, a Hamas political bureau official
The ICJ handles disputes between states. As a non-state actor, Hamas cannot technically be subject to the ICJ’s rulings. Israel evidenced Hamas’ lack of cooperation with ICJ rulings by pointing out that the ICJ has called upon Hamas to release the hostages they had taken, which has, of course, not happened.
Thirdly, Israel claimed that South Africa, who they said claims to be a “guardian of humanity,” has an ulterior motive in their court filings.
“It does so in order to obtain a military advantage for its ally, Hamas, which it does not wish to see defeated” -Israel’s lawyers
South Africa maintains moderate political relations with Hamas. As such, South Africa has hosted several Hamas delegations in recent years. Most recently, a Hamas delegation travelled to South Africa on May 11th. Israel stated that South Africa did not use this opportunity to demand the release of hostages or for Hamas to halt its attacks against Israel, but to discuss a joint strategy against Israel. The delegation included Basem Naim, a member of Hamas’ political bureau, as well as Imad Saber, from Hamas’ international relations office.
*Note that the delegation to South Africa attended the ‘Global Anti-Apartheid Conference on Palestine’, a conference meant to rally support against what they claim to be apartheid within Israel. The conference also received Declan Kearney, the chairman of Sinn Fein, an Irish political party.
Fourthly, Israel pointed out that in any conflict, “incidents involving alleged violations of the rules regulating the conduct of hostilities may occur,” and that this issue was not unique to Israel. They continued by saying that any violations of international law will be investigated, and punished, by Israeli authorities.
Evidencing this point, Israel’s lawyers stated that 55 criminal investigations have been opened since the war began.
Continuing, and addressing South Africa’s claims of incitement to genocide by Israeli officials, they stated that Israel has a clear understanding of the line between statements that may be obscene, but are protected under the right to free speech, and statements that go beyond this right. They further accused South Africa of taking these statements out of context, saying the statements which South Africa claimed showed genocidal intent oftentimes referred to Hamas, rather than Palestinians.
In addition, Israel pointed out that governmental policy is decided within the doors of the Israeli war cabinet and the security cabinet, not on social media accounts.
Israel also stated that Israeli security forces work to protect aid shipments as they travel through Israel towards Gaza, addressing part of South Africa’s issue raised of the blockage of aid shipments.
Specifically, Israel stated that they were investigating several suspects in connection to an incident on May 13th, when several Jordanian aid trucks were attacked by Israeli West Bank settlers. In this incident, much of the aid was sabotaged, damaged, or ruined.
Finishing the fourth point, Israel’s legal team stated that UN reports should not be automatically accepted as the absolute truth, and should be corroborated with reports from other, credible, organizations.
Specifically, they referenced the UN’s recent numbers shift regarding the number of women and children killed in Gaza, reducing the number by approximately half as a reason for this necessity.
*Note that the UN’s number shift was not a reduction of the number of people killed within Gaza. The alteration, from 9,500 to 4,959 women and 14,500 to 7,797 children, was an adjustment to the fatalities that have been fully identified. Of the fatalities in the report released on May 9th, which showed the reduced numbers, it illustrated the demographics breakdown of people that have been identified. The remaining approximately 10,000 people have yet to fully be identified on what demographic they belong to. As such, the total fatality figure still remains at 35,000.
After outlining these four points, Israel specifically addressed South Africa’s establishment of the so-called “extermination zones.” As previously mentioned, these claims of extermination zones were areas in which Israeli troops were operating, in which anyone found not to be a part of the IDF was shot, including civilians.
Israel outright rejected this claim, further adding that South Africa’s language of “extermination zones,” and referral to the offensive on Rafah as the “final stage in Israel’s destruction of Gaza” was reminiscent of holocaust language.
In speaking of the humanitarian efforts Israel has undertaken, such as aid deliveries, leaflet droppings, establishment of “safe zones,” and text messages/phone calls warning of impending attacks, Israel claimed these efforts evidenced a lack of genocidal intent. Furthermore, they said that while the war, in particular civilian casualties in it, is tragic, this does not constitute genocide.
Addressing South Africa’s third requested measure, which requests Israel to file reports on their adherence to previous measures as well as a new report detailing their adherence to potential new measures, Israel stated that since they had already filed previous reports one month following each of the previous two orders, calling upon Israel to submit another report was “unwarranted.”
Moving on from this, the Israeli legal team also rejected South Africa’s accusation of closing various crossings. They directly stated that they have neither closed the Rafah or Kerem Shalom crossings, except from the 5th to the 8th of May, when Kerem Shalom was closed following Hamas’ rocket attack that killed four Israeli soldiers. Notably, they claimed that the Kerem Shalom crossing has been the “central entry point for aid for months.”
Concerning the Rafah crossing, they stated that operations there were “disrupted,” and that Israel was in negotiations with Egypt to resume aid delivery there.
Israel continued by saying that aid to Gaza has increased in recent days, claiming that on May 16th 365 trucks entered Gaza, 330 of which were through the Kerem Shalom crossing.
In the expansion of aid, Israel pointed out that they had recently opened the Erez East and Erez West crossings, on Israel’s northernmost border with Gaza. These crossings are meant to facilitate aid delivery to the north of Gaza, which has been hardest hit and is reported to be under famine conditions. According to Israeli authorities, these two crossings together can facilitate the entry of an additional 200 trucks per day, if at full operation.
*There are two things of particular note for these statements regarding aid delivery. The first is that Rafah on the Egyptian border, not the Kerem Shalom crossing on the Israeli border, has been the central point of aid entry into Gaza. Second is that the UN itself has refuted Israel’s figures regarding the number of trucks entering Gaza.
According to UN data, from the 6th to the 15th of May, only 33 trucks entered Gaza through the Kerem Shalom crossing. Following the Israeli delegation’s claims, the UNRWA’s Communications Director, Juliette Touma, stated that “We don’t yet have full data for trucks entering Gaza yesterday but I can tell you it is certainly not 330. I would add that something entering Kerem Shalom does not equate to entering Gaza.”
It is further worth adding that the Erez crossings have not been operating at full capacity, although trucks have been entering Gaza through these crossings.
Notable of one of Israel’s last remarks is the claim that, within Gaza, there are 14 hospitals outside of Rafah that are in operation. This was likely in regards to critics claims that the Israeli operation will, as South Africa said, “deal a fatal blow” to Gaza’s healthcare system.
Rafah itself contains three hospitals. One of which, Rafah’s largest, has already been shut down due to it being located within the ordered evacuation zone.
It is unclear where exactly the Israeli delegation arrived at the number 14, as according to Gazan health authorities, there are only 11 of Gaza’s 36 hospitals that remain even partially function. No hospitals are at full function.
In their closing remarks, Israel’s lawyers claimed that the present measures in place were sufficient to meet the necessities of Gaza, and that no more were needed.
While Israel was giving their closing remarks, one member of the crowd interrupted by standing up and shouting “liars!” several times. Shortly following this, the ICJ’s livestream cut. When the livestream returned, Israel finished their closing remarks.
Following Israel’s closing remarks, one of the sitting judges had a question to the Israeli delegation. They did not have to answer this question right away, and were given two days to submit a response to the court. The question reads below:
“My question is can Israel provide information about the humanitarian conditions in the designated evacuation zones, in particular Al-Mawasi, and how it would ensure safe passage to these zones, as well as the provision of shelter, food, water, and other humanitarian aid and assistance to all evacuees that are and can be expected to arrive in these zones” -Judge Nolte
It is unknown at this time when the court will issue a ruling on South Africa’s requested measures.
The South African Response
Following Israel’s oral argument, South Africa attacked the Israeli defence by claiming that “what we heard today was not really an engagement on the facts.”
“Some engagement on the facts, but not really rebutting what South Africa is trying to assert is essentially trying to detract and blame, you know, or cast political aspersions on the intentions of South Africa” -Zane Dangor, the Director General of South Africa’s Department of International Relations and Cooperation