ICJ rejects South African request for urgent measures to limit Israeli action in Rafah

But top UN court notes Jerusalem remains bound to comply with existing measures — namely the need to protect civilians from harm and to allow humanitarian aid into Gaza

File: This photo shows an exterior view of the Peace Palace, which houses the International Court of Justice, or World Court, in The Hague, Netherlands on February 18, 2019. (AP/Peter Dejong)
File: This photo shows an exterior view of the Peace Palace, which houses the International Court of Justice, or World Court, in The Hague, Netherlands on February 18, 2019. (AP/Peter Dejong)

THE HAGUE, Netherlands — The UN’s top court on Friday rejected South Africa’s request to put more legal pressure on Israel to halt a threatened offensive against Hamas in the Gaza city of Rafah, saying it was “bound to comply with existing measures.”

South Africa had requested urgent measures to safeguard Rafah amid Israeli plans for a campaign in the city, Hamas’s last bastion in the enclave.

Pretoria has already filed a complaint against Israel in the International Court of Justice (ICJ) in The Hague, alleging that its assault on Gaza amounts to a breach of the Genocide Convention. The court has yet to rule on the underlying issue, but on January 26 it ordered Israel to ensure it took action to protect Palestinian civilians from further harm and to allow in humanitarian aid. It declined to grant South Africa’s central request to order Israel to halt its military campaign.

The ICJ said in a Friday statement that the “perilous situation” in Rafah “demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures.”

The World Court added that Israel “remains bound to fully comply with its obligations under the Genocide Convention and with the said Order, including by ensuring the safety and security of the Palestinians in the Gaza Strip.”

South Africa announced Tuesday that it had lodged an “ urgent request ” with the International Court of Justice to consider whether Israel’s military operations targeting the southern Gaza city of Rafah breach provisional orders the court handed down last month in a case in which Pretoria alleged genocide in the Strip.

On Thursday, Israel urged the court to reject what it called South Africa’s “highly peculiar and improper” request.

Illustrative: Pro-Palestinian activists in The Hague, Netherlands, January 26, 2024. (Patrick Post/AP)

Israel says it does all it can to spare civilians and is only targeting Hamas terrorists. It says Hamas’s tactic of embedding in civilian areas makes it difficult to avoid civilian casualties.

Even so, the court last month ordered Israel to do all it can to prevent death and destruction in Gaza, but stopped short of ordering an end to the military offensive that has laid waste to the Palestinian enclave.

On Thursday Israel assailed South Africa’s latest attempt to have the ICJ halt its campaign against Hamas, and accused Pretoria of abusing the Genocide Convention to protect the Islamist terrorist group.

In a short document, Israel described Pretoria’s entire application as “unfounded in fact and law” and “morally repugnant.”

Israel insisted that there had been no change in the situation in Gaza on the ground since the ICJ heard South Africa’s genocide allegations in January, and said that the “unprecedented military offensive in Rafah” of which Pretoria spoke “in fact has not happened.”

Israel described South Africa’s claims of an “unprecedented military operation” in Rafah on February 11 to rescue two Israeli hostages — which Hamas said killed dozens of Palestinians — as an “outrageous distortion,” and asserted that it was Hamas that was demonstrating “contempt for the law” by failing to accede to the ICJ’s call for the immediate and unconditional release of all remaining hostages.

Pro-Palestinian activists wave flags during a session of the International Court of Justice, or World Court, in The Hague, Netherlands, January 26, 2024. (AP Photo/Patrick Post)

Israel also pointed out that South Africa’s request for ICJ intervention, based on supposed concerns of impending genocide, actually cited comments by Prime Minister Benjamin Netanyahu “that make clear that any potential military operation is intended to target Hamas battalions in Rafah,” and noted that Netanyahu had himself spoken of the necessity of evacuating civilians from the city.

“This announcement is in line with Israel’s enduring commitment under international humanitarian law to minimize harm to civilians, even as Hamas — in its utter contempt for life and for the law — continues its abhorrent strategy of seeking to maximize such civilian harm through its ongoing attacks against Israeli civilians and through its use of Palestinian civilians and civilian objects as shields in Gaza itself,” Israel insisted forcefully in its submission.

Jerusalem said that South Africa’s use of Netanyahu’s statement that clearly emphasized Hamas was Israel’s target “exposes yet again an intention to abuse the Genocide Convention” and have the court “micro-manage” the conflict, the conduct of which is governed not by the Genocide Convention but by international humanitarian law over which the court has no jurisdiction in this war.

“It is evidence of a renewed and cynical effort by South Africa to use provisional measures as a sword, rather than a shield, and to manipulate the Court to protect South Africa’s longtime ally Hamas, a genocidal terrorist organization, from Israel’s inherent right and obligation to defend itself, in accordance with the law, from the terrorist assault it faces and to pursue the release of over 130 hostages,” declared Israel.

Jeremy Sharon contributed to this report.

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