ICJ’s urgent hearings over IDF’s Rafah operation spell more trouble for Israel

Expedited hearings could indicate International Court of Justice is concerned over humanitarian impact of Rafah operation; new orders could be issued against Israel next week

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

IDF soldiers standing atop a battle tank as part of the Givati Brigade operating in eastern Rafah in the southern Gaza Strip, in a handout picture released on May 10, 2024. (Israel Defense Forces/AFP)
IDF soldiers standing atop a battle tank as part of the Givati Brigade operating in eastern Rafah in the southern Gaza Strip, in a handout picture released on May 10, 2024. (Israel Defense Forces/AFP)

The urgent manner in which the International Court of Justice called for new hearings over South Africa’s latest attempt to force Israel to halt its military campaign against Hamas, has some experts concerned that the court is now likely to issue even sharper orders against Jerusalem than in previous rounds in The Hague.

South Africa filed its most recent application to the ICJ on Monday asking the court to instruct Israel to “immediately withdraw and cease its military offensive in the Rafah Governorate,” alleging that the current campaign will make life in Gaza untenable and therefore violate the 1948 Genocide Convention under which Pretoria has brought all its suits against Israel to the court.

Just a day later on Tuesday, the ICJ announced it had agreed to hold hearings as early as Thursday, an exceedingly short timeframe for such proceedings which likely indicates that the court sees the issue, namely the current operation in Rafah, as in need of urgent review.

This is the fourth time South Africa has sought to have the World Court – as the ICJ is also known – halt Israel’s military campaign against Hamas since October 7, although the court has declined to accede to such requests every time, issuing instead orders to increase the supply of humanitarian aid.

The Foreign Ministry announced late Wednesday afternoon that Israel would be sending a legal team to respond to South Africa’s allegations “despite the short notice.”

South Africa’s latest application focuses on the humanitarian situation in Gaza, as its previous two applications have done as well, and the impact the operation in Gaza’s southernmost city of Rafah may have.

File: The International Court of Justice (ICJ) holds public hearings on the request for the indication of provisional measures submitted by South Africa in the case South Africa v. Israel on 11 and 12 January 2024, at the Peace Palace in The Hague, the seat of the Court. (Courtesy: International Court of Justice)

It asserts that the already severe humanitarian situation in the territory, combined with the importance of the Rafah goods crossing in supplying the territory with aid, and the fact that, according to the application, 1.5 million Gazans are now living in the city, means that a full Israeli assault on Rafah would violate the clause of the Genocide Convention which prohibits “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

The application itself makes some highly controversial, and even inaccurate assertions, some of which appear to be out of date due to dynamic and rapid events on the ground.

It alleges that Israel has cut Gaza off “from all humanitarian and medical supplies, goods and fuel on which the survival of the population of Gaza depends,” pointing to the recent closure of the Rafah and Kerem Shalom goods crossings.

But while the Rafah crossing does remain closed, the critical Kerem Shalom Crossing, which South Africa oddly says was “seized” by Israel, was reopened on May 8 according to the Coordination for Government Activities in the Territories (COGAT) unit, an agency of the Defense Ministry which posted footage of aid trucks entering Gaza through Kerem Shalom on May 9, 10 and 12.

Kerem Shalom had briefly been closed after a Hamas rocket attack on the site killed four Israel Defense Forces soldiers.

The IDF has since also opened a crossing in northern Gaza and the US has set up a pier to enable aid to arrive by sea.

The figure for the number of Palestinians in Rafah is also out-of-date, with the United Nations reporting on Tuesday that at least 450,000 Palestinians had fled the city since May 6.

Yuval Kaplinsky, a former head of the International Law Department at the State Attorney’s Office, said he believes it unlikely the court will dismiss the current filing out of hand and not issue any new orders against Israel.

He noted that in a February application filed by South Africa asking the ICJ to order Israel to halt what then appeared to be an imminent operation in Rafah, although the court rejected the request it did express concern over the impact an IDF campaign in the city would have.

And Kaplinsky also pointed out that in another, third, application filed by South Africa in March for “all participants” to halt the fighting, even though the ICJ did not hold hearings it did issue new, “sharper” orders against Israel to increase the supply of humanitarian aid to Gaza in light of the severe warnings issued by humanitarian organizations operating in the territory about the situation on the ground.

Palestinians crowd together as they wait for food distribution in Rafah, southern Gaza Strip, Wednesday, Nov. 8, 2023. Since the start of the Israel-Hamas war, Israel has limited the amount of food and water allowed to enter the territory, causing widespread hunger across the Strip. (AP Photo/Hatem Ali)

“In March, the ICJ didn’t hold hearings but did issue strict orders regarding humanitarian aid. Now, the court has called urgent hearings so the orders it issues might be even firmer,” he told The Times of Israel.

He also observed that the court has already ordered Israel to increase the supply of humanitarian aid on two separate occasions.

Although Israel began to dramatically increase the supply of aid after a severe warning from United States President Joe Biden on the issue in April, humanitarian aid agencies have remain highly concerned about the situation on the ground which the court is likely to recall in the current proceedings.

Kaplinsky also opined that Israel “has not learned the lessons from previous rounds” in the ICJ, noting that in South Africa’s first application it sought to establish genocidal intent by Israel  – without which Pretoria would have no case – on the basis of an array of highly inflammatory comments by senior government ministers and lawmakers.

The ICJ duly ordered Israel in its January 26 orders to “prevent and punish” incitement to genocide,  an explicit prohibition of the Genocide Convention.

But Israeli officials have continued to make incendiary comments about operations in Gaza, and the new South African application references fresh, highly problematic comments by ultranationalist Finance Minister Bezalel Smotrich who was quoted by Haaretz at the end of April as saying “There are no half-measures. Rafah, Deir al-Balah, Nusseirat – total annihilation.”

Given the urgency with which the court has called the new hearings, it could issue orders on the application as early as next week, Kaplinsky said.

South Africa’s latest legal filing against Israel notes that the Rafah Crossing has been an important conduit for the supply of aid to the territory, and arguing that an attack on the city of Rafah poses an “extreme risk… to the very survival of Palestinians in Gaza as a group.”

It describes Rafah as “the last refuge in Gaza for 1.5 million Palestinians” and “the last viable center in Gaza for habitation, public administration, and the provision of basic public services.”

This language invokes the wording of one of the clauses of the Genocide Convention that prohibits “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” and indeed South Africa’s new application directly accuses Israel of violating this provision of the convention.

Along with its request for a unilateral Israeli ceasefire and withdrawal from Rafah, South Africa has also demanded “unimpeded access” to Gaza for humanitarian aid officials, as well as for “fact-finding missions, internationally mandated bodies or officials, investigators and journalists.”

The application notes in particular that the Rafah goods crossing between Gaza and Egypt has been closed since Israel captured it on May 7, and that remains the case due to the combat operations being conducted by the IDF in the area, the IDF said on Wednesday.

Israel has blamed Egypt for the failure to reopen Rafah Crossing.

Rafah has indeed been an important artery for the provision of humanitarian aid into Gaza, although according to UNRWA, the Palestinian humanitarian aid agency, only 33 percent of humanitarian aid trucks entering the strip since Kerem Shalom was opened on December 17 have gone through Rafah.

COGAT has also pointed out that a new goods crossing called the West Erez Crossing from Israel into northern Gaza is currently operational and posted footage of aid trucks entering the territory through the new crossing.

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