“Liars! Liars!” came a shout from the back of the room at the International Court of Justice (ICJ) on Friday — just as Israel’s representative, foreign ministry legal adviser Tamar Kaplan Tourgeman, was wrapping up her argument and asking the court to dismiss South Africa’s request for it to order Israel to immediately cease its military operations in Gaza.
The live feed cut immediately, to be replaced by the ICJ’s logo. When the feed resumed, after a minute or so, Kaplan Tourgeman finished her address and the court carried on.
But the words of the heckler may be prescient: South Africa has gone back to the World Court urgently seeking several new interim orders — called “provisional measures” — in its longer-term genocide case.
Key among the new provisional measures sought are that: Israel “immediately ... 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 also asked for a new, stronger, order on the provision of humanitarian aid and an open report-back to court from Israel on its implementation.
The court already granted provisional measures in January. It beefed up its orders in March. At the heart of what it must decide in this latest approach is whether there is a “change in situation” — warranting a change to the court’s previous orders. This means the court will look at what is happening on the ground in Gaza and at Israel’s conduct.
But if one were to compare the evidence brought by South Africa on Thursday, with the evidence brought by Israel on Friday, one could think the two sides were describing two different wars and two different Israels. It is hard to escape the conclusion that someone is lying.
South Africa argued that 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,” it said in its written request.
On Thursday, its counsel, Blinne Ní Ghrálaigh KC, 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”, with Israel claiming it was abiding by the court’s orders.
“The severity of the situation ... mandates that the court make explicit that which was implicit in its previous orders, and that it now orders Israel to cease its military operations in unequivocal, express terms. Nothing else will suffice,” she said.
Other members of South Africa’s team, Max du Plessis SC and Adila Hassim SC, put evidence before the court detailing the extent of the humanitarian crisis in Gaza, arguing that aid to Rafah was “defiantly and deliberately” being throttled.
The two crossings into Rafah had been seized and taken into control by Israel. The closure of the Rafah and Kerem Shalom crossings had sealed Gaza “hermetically from the outside world”, said Du Plessis.
He said the UN reported that on May 10 no supplies were passing through any crossings in Southern Gaza. As of May 15, the Rafah crossing remained closed “and there is continued lack of safe and logistically viable access to the Kerem Shalom crossing,” he said.
Contradictory pictures of the facts on the ground were painted about the state of hospitals in Gaza and access to medical care and about how to interpret statements made by Israeli government officials
“The crisis could not be more urgent,” said Du Plessis.
“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.”
South Africa’s Vaughan Lowe KC said: “Israel’s actions in Rafah are part of the endgame in which Gaza is utterly destroyed as an area capable of human habitation. This is the last step in the destruction of Gaza and its Palestinian people.”
But Israel’s two representatives, Kaplan Tourgeman and deputy attorney-general Gilad Noam, accused South Africa of “outrageous distortions and blatant misrepresentations”.
Kaplan Tourgeman said the Kerem Shalom crossing had been “in continuous operation” since December 2023, with one recent exception: between May 6 and 8. “This crossing has been the central point for entry of aid for months,” she said.
She said to say Israel had closed the Rafah Crossing was “inaccurate at best. Its operation was disrupted on May 6. Since then, Israel has taken active measures and has been in intensive discussion with Egypt ... in an effort to resume the flow of aid.”
In the meantime, alternative paths were made available, she said. On May 12 a new land crossing was opened at Erez West, joining another land crossing opened on May 1 at Erez East, “which together allow an additional 200 trucks per day”. There was Gate 96, which brought aid directly into north Gaza. There were also aerial and marine routes.
“Is this what a hermetic closure looks like?” she said.
Similar contradictory pictures of the facts on the ground were painted about the state of hospitals in Gaza and access to medical care and about how to interpret statements made by Israeli government officials.
A video of soldiers chanting in Hebrew was shown by South Africa’s Tembeka Ngcukaitobi SC, with the subtitle, “Let’s go and destroy Rafah”. But this was a mistranslation, said Kaplan Tourgeman. They were saying “dismantle”, not destroy — “a clear reference to Hamas capabilities”, she said.
Anticipating what may happen, Hassim said on Thursday 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".
“Ultimately, Israel says only what suits them, only if and when it suits them — notwithstanding the facts on the ground,” she said.
But Naom said “the sad truth is South Africa cites hateful social media accounts and unsubstantiated news reports in support of its claims”. He also said UN reports — on which the vast majority of South Africa’s claims were based — could not always “constitute sufficient evidence of a reliable quality”.
He said the ICJ had itself said previously that the value of any report, for evidence purposes, including UN reports, depended “on the methodology and the amount of research underlying its preparation”. Statements from such reports should not just be accepted automatically, he said.
In the January round, similar factual disputes seemingly did not bog down the ICJ. In its decision, the court seemed to accept the UN reports relied on by South Africa. On Israel’s evidence about its humanitarian interventions, it said such steps “are to be encouraged”, but “they are insufficient to remove the risk [of] irreparable prejudice”. The court, however, stopped short of ordering the ceasefire South Africa sought.
The question this time may be whether South Africa’s evidence — for its “endgame” argument — will be sufficient for the court to order a ceasefire.
Here a question posed by judge Georg Nolte just before the close of the hearing may be relevant. He asked Israel to provide the court with information about “existing conditions in the designated evacuation zones in particular Al-Mawasi”; and how Israel would ensure safe passage to these zones. He asked about the provision of shelter, food, water to all those who can and will be expected to arrive in these zones.
In its written request South Africa said Al-Mawasi had already been largely reduced to rubble and dirt by Israel, “with unexploded ordnance posing extreme risks to displaced people”.
“Al-Mawasi itself consists in significant part of an uninhabitable sand dune, lacking safety and essential services and full of insect-borne diseases, with people living crowded in tents and outdoors. The camp has itself been repeatedly bombed by Israel, and Palestinian children sheltering there have been shot in the head as they attempted to forage for food,” said South Africa, citing mostly UN sources.
Israel had to submit its information by 6pm on Saturday.
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