The International Court of Justice (ICJ) was “not powerless,” Vaughan Lowe KC, counsel for South Africa, said on Thursday.
Lowe was addressing the ICJ in South Africa’s urgent application for new “provisional measures” — urgent interim orders — in its genocide case against Israel. In its written request to the ICJ, filed on May 10, South Africa said it was necessary to come back to the court “as a result of Israel’s ongoing military assault on Rafah”.
“The court has the power to act to ensure that its previous orders ... will not be worthless and that the Palestinian people will be protected; and it needs to exercise that power now,” said Lowe.
The ICJ in January made provisional measure orders, finding there was a plausible case that the rights of Palestinians under the Genocide Convention had been breached. It made several orders including that Israel “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention”.
It also ordered Israel to take “immediate and effective measures” to prevent and punish direct and public incitement to commit genocide and to enable the provision of urgently needed basic services and humanitarian assistance.
In March, the court added new provisional measures, including that Israel “take all necessary and effective measures to ensure, without delay ... the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance ... to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary”.
But in its written request, South Africa said despite repeated orders, “Israel has not changed its conduct.
“It has doubled down on its genocidal aims and conduct, including by invading Rafah.”
“Israel’s conduct has been contemptuous of the court and of international law. The provisional measures indicated by the court to date have been ignored and violated,” said South Africa.
Deliberately herding 1.5-million Palestinians into Rafah and then carrying out a full-scale bombardment while sealing off entry and exit for life-saving aid to an already devastated population, exposing them to famine and human suffering, leaves only one inference: of genocidal intent.
— Max du Plessis SC
South Africa has asked the court for new provisional measures including that Israel “shall immediately withdraw and cease its military offensive in the Rafah Governorate”.
In their oral argument, South Africa’s legal team said their request was for a cessation of military operations not only in Rafah but in the whole of Gaza.
In court on Thursday Blinne Ní Ghrálaigh KC said an order for the express end to Israel’s military activities was the only way to ensure the protection of the rights of the Palestinian people under the Genocide Convention.
She said the court’s previous reluctance to order directly and explicitly that Israel cease its military operation had “cynically been used by Israel as cover for its conduct”. It continued to kill and harm Palestinians in violation of the court’s previous orders.
“The severity of the situation ... mandates that the court made explicit that which was implicit in its previous orders, and that it now order Israel to cease its military operations in unequivocal, express terms. Nothing else will suffice,” she said.
Earlier, Max du Plessis SC and Adila Hassim SC put evidence before the court of the dire humanitarian situation in Rafah and across Gaza.
Du Plessis described how Palestinians were instructed by Israeli evacuation orders to seek refuge in Gaza. Yet “for months” they have been told that Rafah is not safe; and the international community has witnessed Israeli soldiers preparing for a ground invasion “filming themselves chanting ‘tear down Rafah’”.
On May 6, about 100,000 Palestinians were ordered to evacuate the eastern side of Rafah, he said. “Many were simply unable to flee: children and elderly people are so starved that they can barely walk. They cannot just relocate to another area, to so-called ‘safe zones’. It is not possible,” he said. On May 7, 15 hours after the orders was issued, Israel commenced a “severe and sustained military assault”. It “deliberately attacked the very shelters to which it directed Palestinians to flee”.
Aid to Rafah was “defiantly and deliberately” being throttled, he said. The two crossings into Rafah have been seized and taken into total control by Israel. Their closure has sealed Gaza from the outside world.
“Deliberately herding 1.5-million Palestinians into Rafah and then carrying out a full-scale bombardment while sealing off entry and exit for life-saving aid to an already devastated population, exposing them to famine and human suffering, leaves only one inference: of genocidal intent,” said Du Plessis.
There was also nowhere for people to go, said Hassim, describing the conditions across Gaza. Hassim described the discovery of mass graves at the al-Shifa and Al Nasser hospital. “Blue scrubs reportedly still clothed the dead bodies of medical staff; many were decapitated. Three-hundred and twenty-four decomposing bodies were discovered, many stripped and handcuffed — of these only 42 were identified,” said Hassim.
Tembeka Ngcukaitobi SC told the court that Israel’s actions were not only genocidal in pattern but were consistent with “the explicit, stated and continuing genocidal intent of the state of Israel”.
“Israel’s leaders have continued to incite genocide and to express their own genocidal intent. 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,” said Ngcukaitobi.
He gave examples, including Israeli Prime Minister Benjamin Netanyahu dropping references to Hamas alone and describing Israel’s aims as being “to ensure that Gaza will never again constitute a threat to Israel”.
He showed a video of soldiers chanting: “Let’s go and destroy Rafah.”
“Israel’s intent was always to destroy Palestinian life and to wipe them off the face of the earth,” he said.
Earlier, Hassim said that Israel would “no doubt once again deny, obfuscate and cast aspersions on the information presented by South Africa and provided by the UN and other international actors — including those the court itself has relied on”.
“It will do so while continuing to systematically attack all independent sources of information about what is taking place in Gaza, and refuse international investigators and journalists entry into Gaza,” she said.
“Ultimately, Israel says only what suits them, only if and when it suits them — notwithstanding the facts on the ground.” She said the court had given Israel an opportunity to respond to South Africa’s current request, but it had failed to do so.
Israel will argue its case on Friday. So far there have been no publicly released written submissions from Israel.
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