Rafah offensive is ‘Israeli endgame to destroy Gaza,’ South Africa alleges at ICJ

In latest application to world court, Pretoria claims Rafah is Gaza’s last habitable area, says IDF operation there will realize ‘Israel’s declared aim of wiping Gaza from the map’

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

South Africa Ambassador to the Netherlands Vusimuzi Madonsela addresses the International Court of Justice in oral arguments asking the court to order Israel to halt its military campaign against Hamas, May 16, 2024. (International Court of Justice)
South Africa Ambassador to the Netherlands Vusimuzi Madonsela addresses the International Court of Justice in oral arguments asking the court to order Israel to halt its military campaign against Hamas, May 16, 2024. (International Court of Justice)

Accusing Israel of seeking to “destroy Palestinian life and to wipe them off the face of the earth,” South Africa on Thursday demanded that the International Court of Justice order Israel to cease not only its military operation in the southern Gazan city of Rafah but its entire campaign against the Hamas terror organization in the Gaza Strip.

During two and a half hours of oral argument, the seven-member team of South African and international lawyers and jurists repeatedly sought to pressure the court to order an end to Israel’s operations against Hamas, claiming that Israel had ignored previous court orders and implying that the court would appear futile if it did not act.

The ICJ hearings were called after South Africa asked for emergency measures from the court to protect Rafah, after it earlier alleged that Israel is committing genocide against Palestinians in the coastal enclave.

The request was South Africa’s fourth application to the court since Jerusalem declared war against Hamas following the terror group’s brutal onslaught against Israeli civilians on October 7.

South African jurists argued Thursday that the current IDF operation in Rafah will make life in Gaza untenable due to the already severe humanitarian situation in the territory, the lasting widespread destruction in other parts of the Strip, and the importance of the Rafah goods crossing in supplying Gaza with aid.

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,” Pretoria argued.

Although the application filed last week requested an order from the court only to instruct Israel to halt the operation in Rafah, South Africa amended that request and asked the court to order Israel to stop all military operations in Gaza.

The International Court of Justice, the principal judicial organ of the UN, hears South Africa’s oral arguments asking the court to order Israel to halt its military campaign against Hamas, May 16, 2024. (International Court of Justice)

The South African delegation also asked for orders compelling Israel to provide “unimpeded access to Gaza for humanitarian aid” and for investigators and fact-finding missions to investigate allegations of war crimes and genocide.

Finally, the South African team asked that the court instruct Israel to provide a public report within one week on the measures it was taking to implement its orders.

“Israel’s genocide has continued apace since the last court hearing and has just reached a new and horrific stage,” South Africa Ambassador to the Netherlands Vusimuzi Madonsela alleged.

Prof. Vaughan Lowe, who had also represented South Africa in its January application, claimed that it was “increasingly clear” that Israel’s actions in Rafah were designed to achieve its “end game for Gaza to be utterly destroyed as an area of human habitation,” invoking the prohibition in the Genocide Convention on creating conditions designed to destroy life.

In what appeared to be a deliberate tactic of the South African representatives, Lowe warned the court that absent an order for Israel to cease its military campaign,  “the possibility of rebuilding a viable Palestinian society in Gaza will be destroyed.”

The comments were echoed by others on South Africa’s legal team.

“From the onset, Israel’s intent was always to destroy Palestinian life and to wipe them off the face of the earth. Rafah is the final stand,” said Tembeka Ngcukaitobi.

The South African team paid particular focus to the issue of humanitarian aid because of the Genocide Convention’s prohibition on creating conditions designed to destroy a group of people, and alleged that Israel had “choked off” all access to the Gaza Strip through its operation in Rafah.

“Israel must be stopped. South Africa is before you again today to respectfully ask the court to invoke its powers… to order a remedy that will stop Israel,” said Adila Hassim, another lawyer for South Africa.

Although the Rafah goods crossing has been shut since the operation began on May 6, Israeli authorities have said that the Kerem Shalom Crossing, through which the large majority of aid to Gaza passes, reopened on May 8, and that 248 trucks of humanitarian aid were inspected and transferred to the Gaza Strip on Wednesday, along with two fuel tankers.

One of seven fuel tankers which the Coordinator of Government Activities in the Territories (COGAT) agency of Israel’s Defense Ministry said entered Gaza through the Kerem Shalom goods crossing on Sunday, May 12, 2024. (Courtesy COGAT)

The UN Office for the Coordination of Humanitarian Affairs said on Thursday that the crossings into Gaza “have been closed, unsafe to access or not logistically viable” for several days, and that “aid distribution is almost impossible.”

COGAT said on Thursday, however, that 25 out of 36 general coordination requests for the distribution of aid were approved on Wednesday.

Other allegations of supposedly genocidal actions were also raised by the South African team, including the claim that Israel had executed hundreds of Palestinians and buried them in mass graves at the Nasser Hospital in Khan Younis.

Open source information has indicated that these graves were dug and filled by Palestinians before Israeli forces entered the hospital, with the New York Times saying that according to its analysis at least two of the three graves had been dug before the IDF operation in the area, and that there was “no clear sign that Israeli troops had dug new graves or added bodies to existing ones.”

In order to try and establish genocidal intent by Israel against Gazans, a critical necessity for the court to be able to act, Ngcukaitobi cited inflammatory comments by 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.”

The tactic echoed one used by South Africa in the January hearings first seeking the ICJ’s intervention, and which the court itself noted in its decision to issue orders against Israel.

In another similarity to the January hearings, Ngcukaitobi played a video of IDF soldiers before entering the southern Gazan city of Rafah praying and then singing, “We will dismantle Rafah.”

Numerous videos of IDF soldiers operating in Gaza making inflammatory comments and acting improperly have been posted by the soldiers themselves to social media, and have been strongly criticized, including by the IDF itself, although they have continued to emerge throughout the war.

The destruction in Khan Younis in the southern Gaza Strip, on April 19, 2024. (Abed Rahim Khatib/Flash90)

In January, judges ordered Israel to do all it can to prevent death, destruction and any acts of genocide in Gaza, but the panel stopped short of ordering an end to the military offensive that has caused widespread destruction in the Palestinian enclave. In a second order in March, the court said Israel must take measures to improve the humanitarian situation.

According to the latest request, the previous preliminary orders by The Hague-based court were not sufficient to address “a brutal military attack on the sole remaining refuge for the people of Gaza.”

Israel will be allowed to answer the accusations on Friday.

Gilad Erdan, Israel’s ambassador to the United Nations, told Army Radio on Wednesday that the short notice the court had given for this week’s hearings did not allow sufficient legal preparation. That was “a telling sign,” he said.

This week’s hearings will only focus on issuing emergency measures and it will likely take years before the court can rule on the underlying charge of genocide.

A ruling is expected next week.

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