South Africa has asked the International Court of Justice (ICJ) in The Hague to explicitly order Israel to cease its military activities throughout Gaza.

Yesterday (Thursday) South Africa presented its oral arguments in support of its request for the indication of additional provisional measures and the modification of provisional measures previously prescribed by the ICJ.

Israel will make its oral submission to the court today.

In his opening remarks to the court yesterday, South Africa’s ambassador to the Netherlands, Vusimuzi Madonsela, told the ICJ judges: “Seven months ago, South Africa could not have imagined that Gaza would now be mostly wiped off the map.”

Madonsela said that when South Africa last appeared before the court, it had hoped, “to halt this genocidal process, to preserve Palestine and its people”.

Instead, he said, Israel’s genocide had continued apace “and has just reached a new and horrific stage”.

Madonsela said Israel had sought to hide its crimes through the weaponisation of international humanitarian law.

“It pretends that the civilians it ruthlessly kills through its 2,000-pound bombs, through its targeted airstrikes, through its artificial intelligence, through its executions, are human shields,” he told the ICJ judges.

“This whitewashing of Israel’s genocide misses the key and fundamental element, that of the massive and still mounting evidence of Israel’s genocidal intent.”

Adila Hassim told the ICJ judges that South Africa was seeking “an explicit order from the court that Israel cease its military activities, not only in Rafah, but throughout Gaza”.

Hassim struggled to control her emotions when she spoke about the suffering of children in Gaza. More than 14,000 children had been killed in Israel’s assault on Gaza and thousands more had been injured or had lost family members, she said. An estimated 17,000 children were now unaccompanied or separated from family.

Nearly all of Gaza’s children had been exposed to traumatic experiences, the consequences of which would last a lifetime, Hassim told the ICJ judges.

Hassim said that, in its targeted attacks on hospitals, Israel had killed hundreds of civilians, including doctors and other medical staff, “turning centres built for healing into mass graves full of the decomposing bodies of men, women, and children”.

Israel’s thwarting of humanitarian aid could not be seen as anything but the deliberate snuffing out of Palestinian lives, Hassim told the court. “Starvation to the point of famine. Obstructing aid in the face of famine. The killing of at least 200 aid workers,” she said.

The risks to the people of Gaza were imminent, irreparable, and rapidly increasing, Hassim told the judges. “All of what I have described must stop,” she said. “Israel must be stopped.”

Professor Vaughan Lowe QC said it had become increasingly clear that Israel’s actions in Rafah were “part of the end game in which Gaza was utterly destroyed as an area capable of human habitation”.

He told the judges: “This is the last step in the destruction of Gaza and its Palestinian people. It was Rafah that brought South Africa to the court, but it is all Palestinians as a national, ethnical, and racial group who need the protection from genocide that the court can order.”

Lowe said that most of Gaza had been razed. The survivors who were, from time to time, allowed to return to their homes were returning to rubble, with no homes and no running water, electricity, sewerage or other working infrastructure.

“This is the last step in the destruction of Gaza and its Palestinian people,” Lowe told the ICJ judges.

He said that if the ICJ did not act now, “the possibility of rebuilding a viable Palestinian society in Gaza will be destroyed, at least for the lifetime of those who survived the current horrors of Gaza.”

Lowe said the right of self-defence did not give a state a licence to use unlimited violence and no right of self-defence could ever extend to a right to inflict massive, indiscriminate violence and starvation collectively on an entire people.

He also noted that the ICJ had ruled in 2004 that there was no right of self-defence by an occupying state against the territory that it occupies.

Nothing could ever justify genocide, Lowe told the ICJ judges. “The prohibition on genocide is absolute, a peremptory norm of international law,” he said.

“The key point today is that Israel’s declared aim of wiping Gaza from the map is about to be realised.”

Lowe said that evidence of appalling crimes and atrocities in Gaza was literally being destroyed and bulldozed, “in effect wiping the slate clean for those who have committed these crimes, and making a mockery of justice”.

Professor Max du Plessis told the ICJ judges that no one in Gaza was safe because, as the United Nations had repeatedly made clear, nowhere in Gaza was safe.

Israel’s use of evacuation orders and its designation of humanitarian zones were purely performative, Du Plessis said. “They endanger rather than protect civilian life,” he told the judges. “So-called humanitarian zones are not safe.”

Tembeka Ngcukaitobi said Rafah was the “last refuge” of Gaza, the only remaining area in the Gaza Strip that had not been substantially destroyed by Israel, the only area that could host displaced people, “the only remaining centre of humanitarian aid and the host to one of the few remaining large hospitals across the entirety of Gaza”.

Rafah was the last stage of the “total annihilation” of Palestinian life, Ngcukaitobi said.

“Without Rafah, the possibility to rebuild and reconstruct Palestinian life will be lost forever. For Palestinians to continue to exist as a protected group under the Genocide Convention they need a place from which to rebuild. As we stand here today, Rafah is that place. The last stand,” he told the judges.

Israel’s genocidal acts were foreseen and foreseeable from the onset, Ngcukaitobi said. “Israel’s intent was always to destroy Palestinian life and to wipe them off the face of the earth,” he told the judges.

Israeli leaders had continued to incite genocide and to express their own genocidal intent, Ngcukaitobi said. “In doing so, not only has Israel ignored its obligations as a state party to the Genocide Convention, it has also treated this court with contempt and threatened the rule of law,” he added.

Ngcukaitobi said Palestinians did not need any more diplomatic gesturing; “no more abstract words; no more vacuous condemnations and denunciations of Israel’s actions”. There was no more time to spare, he said. It was simply now or never.

Blinne Ní Ghrálaigh told the ICJ judges: “As this court has heard, this is in effect the end game for Gaza and for its Palestinian people, unfolding under the world’s watch. This may well be the last chance for the court to act to ensure their survival.”

She said the ICJ’s reluctance, to date, to order directly and explicitly that Israel cease its military operations in Gaza so as to give effect to the provisional measures indicated by the court, “relying instead on necessary implication”, had cynically been used by Israel as cover for its conduct.

Ní Ghrálaigh said Israel continued to kill and harm Palestinians in Gaza in violation of the ICJ’s orders while its soldiers and political leaders continued to publicly express clear genocidal intent towards them.

She said the evidence before the ICJ indicated that the extent of the carnage in Gaza was of a much greater magnitude than that pertaining in Ukraine and Russia. It was, she said, of an order that exceeded by far the necessities of war and the limits imposed by the laws of war.

As stated by the United Nations High Commissioner for Human Rights, what Israel was doing was “beyond warfare”, Ní Ghrálaigh said. Not only was the ICJ empowered to call for it to end, it was duty bound to do so.

Ní Ghrálaigh told the ICJ judges that Israel was relying heavily on artificial intelligence in identifying which Palestinians in Gaza were to live and which were to die.

One such system appeared, she said, to function as a form of “target machine”, generating so-called kill lists of Palestinians selected for execution on bases as tenuous as being in a WhatsApp group with another identified target.

Another system, Ní Ghrálaigh said, was the chillingly named ‘Where’s daddy?’ surveillance and tracking system, “specifically intended to target those marked for execution when they’re at home with their families”.

Ní Ghrálaigh said the mounting evidence was that Israel’s very interpretation of its rules of engagement and of the application of fundamental concepts of international humanitarian law, including distinction, proportionality, necessity, and the very concepts of safe zones and warnings, was itself genocidal, placing Palestinians at extreme risk.

“Israel’s contempt and wilful disregard of the court’s orders highlight the urgent need for further or modified provisional measures in the most explicit terms,” Ní Ghrálaigh said.

In his final remarks, Vusimuzi Madonsela said Israel was acting with complete impunity in Gaza, “escalating hostilities in a final wave of apocalyptic destruction from which there is no return”.

Madonsela said South Africa was requesting the court to order that Israel, “as a state party to the Genocide Convention, and as a party to these proceedings” to  immediately, and further to its obligations under the court’s previous orders of January 26, 2024, and March 28, 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.

South Africa is further requesting the court to order Israel to 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 access and record conditions on the ground in Gaza and enable the effective preservation and retention of evidence, and to ensure that its military does not act to prevent such access, provision, preservation, or retention.

The third request is for the ICJ to order Israel to submit an open report to the court on all measures taken to give effect to these provisional measures within one week as from the date of the order, and on all measures taken to give effect to all previous provisional measures indicated by the court within one month as from the date of the order.

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