I had two thoughts Friday when I heard the chief judge of the International Court of Justice call on Israel to halt its military offensive against Rafah, a city in southern Gaza that was the site of more than a million displaced people during the earlier conflict.
the first is The Court’s Decision The wording of the ruling was unusually harsh: The judges said Israel “must immediately cease” its military offensive in Rafah. Many observers did not expect the court to issue such a direct order because it has no power to impose similar demands on Israel’s wartime rival Hamas.
My second thought is that the court’s use of punctuation is sure to spark debate. Here are the key parts of the ruling:
The State of Israel should comply with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide and, taking into account the deteriorating living conditions facing civilians in Rafah Governorate:
Immediately cease the military offensive and any other actions in Rafah governorate that could lead to dire living conditions for the Palestinian community in Gaza and possibly to its physical destruction in whole or in part.
Sure enough, some legal scholars have been debating for days whether the “may cause” clause would impose conditions on an “immediate cease” order.
Has Israel been told to stop its offensive, or has it stopped only when it is about to partially or completely destroy the Palestinians?
To some extent, the debate is a distraction. Legal experts generally agree that Israel cannot continue its current offensive in Rafah without violating the court’s order. Five prominent legal scholars I contacted said the court was clear on this point, and many more said same exist Interview and social media Posts Online. (“The offense currently being planned and executed is prohibited under any circumstances.” wrote “This ruling means that Israel must cease its current military offensive in Rafah,” said Adil Haq, an international law expert at Rutgers University. wrote Janina Dill, co-director of the Oxford Institute for Ethics, Law and Armed Conflict.)
These experts noted that the previous paragraph of the order provides important context and clearly explains the urgency of the court’s intervention:
“Based on the information available to it, the Court does not consider that the evacuation efforts and related measures that Israel claims to have taken to enhance the safety of the civilian population in the Gaza Strip, in particular those recently displaced from the Rafah Governorate, are sufficient to mitigate the significant risks to the Palestinian people as a result of the Rafah military offensive.”
The court went on to explain that this is the reason for the new order. Note the use of the word “current”: “The Court finds that the current situation resulting from the Israeli military offensive in Rafah constitutes a further threat to the rights of Palestinians in Gaza,” the order reads.
There yes There are broader disagreements about what legal actions Israel can take, but that is not directly relevant because all signs point to Israel continuing with its current offensive despite the court directing it to halt.
How did we get here?
To recap: Friday’s order was an interim ruling in a case filed by South Africa in December alleging that Israel’s military actions in Gaza violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The court can rule only on Israel’s actions, not on those of Hamas, which is neither a state nor a party to the Convention. Denial This is genocide.
A decision in the case could take years. In the meantime, the court issued a series of “interim measures” — essentially temporary injunctions — ordering Israel to actively ensure that genocide does not occur while the case is pending.
first, Released in Januaryordering Israel to refrain from genocide, prevent and punish incitement, and provide humanitarian assistance. A subsequent order in March required Israel to take “Take all necessary and effective measures” to ensure humanitarian assistance is delivered “on a large scale”.
South Africa urgently requested new interim measures after Israel began its military operation in Rafah in early May, saying the incursion would “irreparably harm the rights of the Palestinian people in Gaza.” On Friday, the court judges ruled by a 13-2 majority that the risks to civilians warned of in the previous order had now become a reality and the situation had become “catastrophic.”
The court found that “Israel has not provided sufficient information on the safety of residents during the evacuation, nor on whether there is adequate water, sanitation, food, medicine and shelter in the Al-Mawasi area for the 800,000 Palestinians evacuated so far.” (Al-Mawasi is a coastal area in Gaza to which many of Rafah’s civilians have moved.)
The court found that this risked “irreparable damage to the rights asserted by South Africa” and ordered Israel to stop its military offensive in Rafah. The court also ordered Israel to “largely” open the Rafah crossing with Egypt to allow humanitarian aid and UN-mandated investigators to enter Gaza.
One command, two commas, many opinions
Some experts point out that when the International Court of Justice ordered Russia to stop the war in Ukraine in March 2022, More direct wordingThe interim measures order states: “The Russian Federation shall immediately cease the military operations launched on the territory of Ukraine since February 24, 2022.” (In that case, the ruling was also 13 to 2.)
So why did the court go with ambiguity in this case? Yuval Shani, a professor of international law at the Hebrew University of Jerusalem, said it may have been deliberate. Perhaps vague language helps convince more judges to sign on to the order, even if their interpretations of what it means are not entirely consistent, he said. Shani noted that there is actually a term in international law to describe this phenomenon. The term “constructive ambiguity” refers to “the fact that you can’t really reach a consensus, so you use language that everyone is comfortable with,” he said.
It may have been easier to convince a majority to agree to a clear order after Russia’s invasion of Ukraine, because international law prohibits invading another country’s territory. By contrast, Israel’s military action was a response to a Hamas attack on Israeli territory last October. The use of force in self-defense is permissible under international law, but it remains subject to other laws of war and rules prohibiting genocide and other crimes.
In last week’s ruling, three judges joined the majority in separate letters explaining their interpretation of the order. They each said that certain types of military operations could continue under certain circumstances: if they did not “create conditions of life for the Palestinians in Gaza that might lead to their total or partial destruction” (Judge Bogdan Aurescu); if they do not hinder the delivery of much-needed basic services and humanitarian assistance (Judge George Nolte); or limited to “defensive action to repel a specific attack” under international law (Judge Deeley Taldy).
But no one seems to be suggesting that the action can go ahead in its current form — and Judge Tladi explicitly ruled that out.
“The continuation of offensive military operations in Rafah and elsewhere is inconsistent,” he wrote.
All the experts I spoke with agreed that the order prohibits Israel from continuing its current operations in Rafah, but argued that it allows Israel to take more limited defensive actions in the city in response to Hamas attacks.
Pierre d’Argent, a professor at the University of Leuven in Belgium, initially seemed to take a relatively strict view of the court’s order. Posts on social mediaIn his letter, he pointed out that the ICJ only ordered Israel to “change the course of its military operations, not to cease all military operations in Rafah.”
But when I contacted him, Darjan told me by email that, in fact, “the issue is quite simple” and that he did not think Israel could continue with its current military campaign.
“The court is concerned about the deterioration of the humanitarian situation and that aid cannot be delivered if the military operations continue. Therefore, the military operations (i.e. the ones currently underway) must stop, but the court did not prohibit all military action in Rafah,” he said.
Stephen Talmon, professor of international law at the University of Bonn, Germany, said in an interview Der SpiegelGerman newspaper The Guardian said the order would allow military operations to continue only if Israel ensured the supply of food, water and medicine to civilians. However, he believed that this would be difficult to implement in practice. Therefore, the offensive must actually be stopped.
Michael Becker, a professor of law at Trinity College Dublin, put it more clearly. “I take the sentence to mean that the military offensive in Rafah must cease, period,” he said. The order’s discussion of the worsening humanitarian disaster makes it clear that the current military offensive “has created a situation that threatens to impose living conditions on the Palestinian community in Gaza that may result in its total or partial physical destruction,” he added.
Oona Hathaway, a Yale law professor, agreed. “The urgent request for additional interim measures is in light of what was going on at the time,” the attack on Rafah was unfolding, she said. “It seems hard to believe that the court is saying that it doesn’t see anything of concern at this point.”
Two judges who did not join the opinion also interpreted the order’s requirements narrowly. Judge Aharon Barak wrote that the order’s requirement that Israel stop its actions in Rafah “is limited to the extent necessary to protect the Palestinian community in Gaza from possible genocide,” an obligation Israel has already assumed. Judge Julia Sebutinde wrote that the order does not “outright prohibit” Israel’s actions in Rafah but rather partially limits the offensive “insofar as it concerns rights under the Genocide Convention.”
Israel denies that its actions in Rafah risked annihilation of Palestinian civilians in Gaza.
“Israel has not and will not take military action in the Rafah area, as this could adversely affect the living conditions of Palestinian civilians in Gaza, or even lead to its total or partial destruction,” the chairman of Israel’s National Security Council and spokesman for the Israeli Foreign Ministry said in a statement. Joint Statement on Friday. (The Israeli military and Defense Ministry did not respond to my requests for comment.)
Caused by the incident
As legal scholars pondered the implications of the court order, the situation in Rafah had changed.
“To some extent, the debate in academic circles and the wider public about the specific content of the ICJ order has been superseded by the events of the weekend,” said Professor Becker of Trinity College Dublin. Rafa’s strike Sunday’s attacks killed at least 45 people, including children, and injured 249.
He added: “I think that, however one interprets it, the nature of what happened in Rafah at the weekend demonstrates exactly the type of risk that the ICJ’s order is intended to prevent.”
