South Africa asks the International Court of Justice to order additional measures to protect Palestinians in Gaza

By Annette Gartland on February 14, 2024

Update: The ICJ responded to South Africa on February 16, stating that the “perilous situation” in Gaza “does not demand the indication of additional provisional measures”. The situation demanded immediate and effective implementation of the provisional measures indicated by the court in its order of January 26, the ICJ said.

South Africa has called upon the International Court of Justice (ICJ) to consider “as a matter of the greatest urgency” whether the developing circumstances in Rafah require that it exercise its power “to prevent further imminent breach of the rights of Palestinians in Gaza”.

On February 12, South Africa made an urgent request to the ICJ for additional measures under Article 75(1) of the Rules of Court.

“The Republic of South Africa is 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,” South Africa wrote in its request.

South Africa said there had been “a significant development in the situation in Gaza requiring the court’s urgent attention” and noted that the ICJ had already found Israel to be acting in “plausible breach” of its obligations under the Genocide Convention.

In its request, South Africa cited the following announcement by the Office of the Prime Minister of the State of Israel on February 9:

“It is impossible to achieve the goal of the war of eliminating Hamas by leaving four Hamas battalions in Rafah. On the contrary, it is clear that intense activity in Rafah requires that civilians evacuate the areas of combat. Therefore, Prime Minister Benjamin Netanyahu has ordered the IDF and the security establishment to submit to the Cabinet a combined plan for evacuating the population and destroying the battalions.”

South Africa added that, despite strong denunciation by the international community, “including by some of Israel’s closest allies”, Netanyahu reiterated in an interview broadcast on February 11 that victory was within reach and said: “We’re going to do it. We’re going to get the remaining Hamas terrorist battalions in Rafah, which is the last bastion, but we’re going to do it.”

The same evening, Rafah was subjected to 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 noted in its request to the ICJ.

“Rafah, normally home to 280,000 Palestinians, currently houses – primarily in makeshift tents – more than half of Gaza’s population, estimated at approximately 1.4 million people, approximately half of them children,” South Africa added.

“They fled to Rafah, pursuant to Israeli military evacuation orders, from homes and areas that have been largely destroyed by Israel. 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’.”

South Africa notes that the United Nations secretary-general has stated that a large-scale military assault against Rafah “would exponentially increase what is already a humanitarian nightmare with untold regional consequences”.

The United Nations special rapporteur on the occupied Palestinian territories had warned that the risk of a massacre of unparalleled scale loomed on the horizon, South Africa said.

UNICEF had urgently highlighted the need for Gaza’s last remaining hospitals, shelters, markets and water systems”, which are in Rafah, “to stay functional”. Otherwise, UNICEF said, hunger and disease would skyrocket, “taking more child lives”.

South Africa further noted that the commissioner-general of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) had said a military offensive “in the middle of these completely exposed, vulnerable people” was “a recipe for disaster”.

NGOs operating on the ground, such as the Norwegian Refugee Council and Save the Children, had also raised the alarm, South Africa said. They had warned of a bloodbath and said expanded hostilities in Rafah could collapse the humanitarian response and that what happened next would be “beyond our worst nightmares”.

The director-general of Médecins Sans Frontières (Doctors without Borders), Meinie Nicolai, said on February 12: “Israel’s declared ground offensive on Rafah would be catastrophic and must not proceed. As aerial bombardment of the area continues, more than a million people, many living in tents and makeshift shelters, now face a dramatic escalation in this ongoing massacre.

”Nowhere in Gaza is safe, and repeated forced displacements have pushed people to Rafah, where they are trapped in a tiny patch of land and have no options.”

Nicolai said that, since October 7, 2023, Médecins Sans Frontières’ (MSF’s) medical teams and patients had been forced to evacuate nine different health care facilities in the Gaza Strip after coming under fire from tanks, artillery, fighter jets, snipers and ground troops, or being subject to an evacuation order.

”Medical staff and patients have been arrested, abused and killed,” Nicolai said. “All of this has taken place in full view of world leaders. It has now become near impossible to work in Gaza, all our attempts to provide lifesaving care to Palestinians have been diminished by Israel’s conduct of hostilities.”

Nicolai said the situation in Gaza required a safe humanitarian response on a much larger scale.

MSF called on the government of Israel to immediately halt its offensive and urged all supporting governments, including the United States, to take concrete action to bring about a complete and sustained ceasefire. “Political rhetoric is not enough,” MSF said.

The President of the United Nations General Assembly, Dennis Francis, tweeted on February 13 that he was deeply distressed by the escalating military operation into Rafah, where more than a million civilians were already sheltering in the most dire conditions.

“Another phase of this humanitarian catastrophe is at our doorstep,” Francis said. “This is not a path to sustainable peace.

“In the name of humanity, I continue to appeal to all those with leverage to do their utmost to help stop more bloodshed and to initiate meaningful dialogue for a durable peace.”

The UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Martin Griffiths, said that military operations in Rafah could lead to a slaughter in Gaza. “They could also leave an already fragile humanitarian operation at death’s door,” he said.

‘We lack the safety guarantees, the aid supplies and the staff capacity to keep this operation afloat.”

Griffiths said that no amount of dedication and goodwill was enough to keep millions of people alive, fed and protected while the bombs were falling and aid was choked off.

“I have said for weeks now that our humanitarian response is in tatters,” he said.

“More than half of Gaza’s population – well over 1 million people – are crammed in Rafah, staring death in the face. They have little to eat, hardly any access to medical care, nowhere to sleep, nowhere safe to go.

“They, like the entire population of Gaza, are the victims of an assault that is unparalleled in its intensity, brutality and scope.”

In its order issued on January 26, the ICJ told Israel that it must meet its obligations under the Genocide Convention and take all measures within its power to prevent the commission of all acts against Palestinians in Gaza that fall within the scope of Article 2 of the convention.

The court cited the following acts:

killing members of the group,
causing serious bodily or mental harm to members of the group,
deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, and
imposing measures intended to prevent births within the group.

Reading out the court’s order, ICJ president Judge Joan E. Donoghue said that these acts fell within the scope of Article 2 of the convention when they were committed with the intent to destroy a group in whole or in part.

“The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts,” she added.

In its application to the ICJ, South Africa asked that the court include in its measures a demand that Israel immediately suspend its military operations in and against Gaza. The ICJ did not include this in its order.

The ICJ said that, in its view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appeared to be capable of falling within the provisions of the Genocide Convention.

The court said that Israel must take all measures within its power “to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip”.

It also said that Israel must take “immediate and effective measures” to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.

Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts against Palestinians in Gaza that fall within the scope of Articles 2 and 3 of the Genocide Convention, the court said.

UPDATE: South Africa’s Minister of International Relations and Cooperation, Naledi Pandor, said: “Israel was not deterred by the decisions of the Court of Justice and the evidence is to continue its war in Rafah.”

Pandor said the decision to stop the fighting in Gaza was in the hands of the countries that were supplying Israel with money and weapons.

“What concerns us is that Israel is allowed to ignore the ruling of the Court of Justice and not protect civilians,” Pandor said.

“The actions of the Israeli government prove what we submitted to the Court of Justice regarding genocide We condemn the targeting of journalists in general and Al Jazeera journalists in particular, and this is a criminal act.”

In its observations about South Africa’s request for additional measures Israel referred to the request as “highly peculiar and improper”.

Israel said it wished to reiterate that its commitment to “the observance of international law, including the Genocide Convention and international humanitarian law” was “unwavering”.

It said that nothing in South Africa’s new request established that the provisional measures already indicated by the ICJ would no longer be sufficient.

“South Africa’s unjustifiable claims make clear that its request is not driven by any change in circumstances, nor does it have any other basis in fact or law. Indeed, South Africa’s reference to ‘the unprecedented military offensive against Rafah’ which in fact has not happened, is indicative of more than the carelessness of its argument,” Israel said.

Israel said it was plain that South Africa had not established any legal or factual basis for the modification of the ICJ’s January 26 order, “nor indeed the granting of additional measures” and submitted that its request should be rejected.