On Friday, when I heard the chief justice of the International Court of Justice telling Israel to halt its military offensive against Rafah, I had two thoughts. city.
First, the court’s ruling was unusually strong: the judge said that Israel “must immediately” stop its military attack on Rafah. Many observers did not expect the court to issue such a direct order because it does not have jurisdiction to make similar demands against Israel’s war 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:
In accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide and taking into account the deteriorating living conditions of civilians in Rafah Governorate, the State of Israel should:
Immediately cease its military attacks and any other operations in Rafah governorate that could create living conditions for Palestinian groups in Gaza that could lead to their total or partial physical destruction.
Sure enough, some legal scholars have been debating for days whether a clause beginning with “may cause” might impose conditions on an order to “immediately cease”.
Was Israel told to stop its offensive, or only when it was about to partially or completely destroy the Palestinians as a whole?
In some ways, debate is distracting. Legal experts agree that Israel cannot continue its current offensive against Rafah without violating a court order. Five prominent legal scholars I contacted said the order is clear at this point, and many more echoed the sentiment in interviews and interviews. social media post online. (Adil Haq, an international law expert at Rutgers University, wrote: “No matter how it is interpreted, the current offensive as currently planned and executed is prohibited. This sentence means that Israel must stop its current military offensive in Rafah.” wrote Janina Dill is co-director of the Oxford Institute of Ethics, Law and Armed Conflict.
These experts noted that the order’s early paragraphs provide important context and clearly explain the urgency for the court’s intervention:
“Based on the information received, the Court is not convinced that the evacuation efforts and related measures claimed by Israel to enhance the security of civilians in the Gaza Strip, especially those recently displaced from Rafah Governorate, are sufficient to mitigate the consequences of the military offensive for the Palestinian people in Rafah huge risks.
The court went on to explain that this was the reason for the new order. Note the use of the word “current” here: “The Court considers that the current situation resulting from Israel’s military offensive against Rafah poses further risks to the rights of Palestinians in Gaza,” the order states.
There yes There are broader disagreements about what Israel can legally do. But this is not immediately relevant, as all signs point to Israel continuing its current offensive despite court directives to halt it.
How did we get here?
To recap: Friday’s order is an interim decision in a case filed by South Africa in December alleging that Israel’s military operations in Gaza violated the 1948 Genocide Convention. The court can only rule on the actions of Israel, not those of Hamas, since Hamas is neither a state nor a party to the Genocide Convention. Israel categorically denies that it is committing genocide.
A ruling on the merits of the case could take years. At the same time, the court issued a series of “provisional measures” – essentially temporary injunctions – ordering Israel to actively ensure that the genocide does not occur while the broader case is pending.
The first order, issued in January, ordered Israel not to commit acts of genocide, to prevent and punish acts of incitement and to ensure the delivery of humanitarian aid. A follow-up order in March also required Israel to take “all necessary and effective measures” to ensure the delivery of humanitarian aid “on a massive scale.”
In early May, after Israel began military operations in Rafah, South Africa urgently requested new interim measures, arguing that the invasion of Rafah would “cause irreparable harm to the rights of the Palestinian people in Gaza.” Court judges ruled by a 13-2 majority on Friday that the risks to civilians warned in previous orders had now materialized and the situation had become “catastrophic.”
“Israel did not provide sufficient information about the safety of the people during the evacuation, nor did it provide the necessary amounts of water, sanitation, food, medicine and shelter to the 800,000 residents of the Al-Mawasi area,” the court ruled. Those who have been evacuated so far have Palestinians. (Mawasi is a coastal district in Gaza from which many civilians in Rafah have been displaced.)
The court found that this created a risk of “irreparable damage to the legitimate rights asserted by South Africa” and ordered Israel to halt its military attack on Rafah. It also ordered Israel to open the Rafah crossing on the border with Egypt “on a massive scale” to provide humanitarian aid and allow UN-authorized investigators access to Gaza.
One command, two commas, multiple opinions
Some experts pointed out that when the International Court of Justice ordered Russia to stop the war in Ukraine in March 2022, the wording was more direct: “The Russian Federation should immediately cease military operations in Ukraine that started on February 24, 2022.” . (In this case, the verdict was also 13 to 2.)
So why was the court’s attitude in this case slightly ambiguous? Yuval Shani, a professor of international law at the Hebrew University of Jerusalem, said this may have been intentional. He said perhaps the vague language could help persuade more judges to sign on to the order, even if they don’t all agree on a single interpretation of its meaning. Shani pointed out that there is actually a term in international law to describe this phenomenon. The term “constructive ambiguity” means “you can’t really reach consensus, so you use language that everyone can accept,” he said.
Following the invasion of Ukraine, it may have been easier to persuade a majority to agree to a clear order in the Russia case, since invading another country’s territory is prohibited by international law. In contrast, Israel’s military action was in response to Hamas’s attack on Israeli territory last October. International law permits the use of force in self-defense, subject to other laws of war and prohibitions on genocide and other crimes.
Three justices in the majority who were part of last week’s ruling wrote separate letters explaining their interpretation of the order. Everyone said that under certain circumstances certain types of military operations could continue: if they did not “create living conditions for Palestinian groups in Gaza that could lead to their total or partial physical destruction” (Judge Bogdan) Orescu); if they do not prevent the delivery of urgently needed basic services and humanitarian aid (Judge Georg Nolte); or are limited to “defensive actions to repel a specific attack” in accordance with international law (Dire Te Judge Lardy).
But no one seems to be suggesting that the operation can continue in its current form – a possibility that Judge Trady specifically ruled out.
“What is inconsistent is the continuation of offensive military operations in Rafah and elsewhere,” he wrote.
All experts I spoke to agreed that the order prohibited Israel from continuing its current operations in Rafah, but believed it allowed 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 restrictive view of the court’s order in a social media post in which he argued that the court only ordered Israel to “change its behavioral direction.” military action to stop them in Rafah. “
But when I contacted him, Dargent told me via email that in fact “the problem is quite simple” and that, in his view, Israel cannot continue its current military campaign.
“Because the court is concerned about the deteriorating humanitarian situation, aid cannot be distributed if military operations continue,” he said. “Therefore, these operations (that are currently ongoing) must stop, but the court does not prohibit all military operations in Rafah.”
Stefan Talmon, a professor of international law at the University of Bonn in Germany, told Der Spiegel in an interview that the order will only allow military operations to continue if Israel ensures the provision of food to civilians. However, he believes this is difficult to implement in practice. So, in effect, the attack must stop.
Michael Becker, professor of law at Trinity College Dublin, has a clearer explanation. “I interpret this language to mean that the military offensive against Rafah needs to stop, period,” he said. He added that the sect’s discussion of the worsening humanitarian catastrophe made it clear that the current military offensive “has created a situation that could create a situation for Palestinian groups in Gaza, whose living conditions could cause all or part of their material destruction”.
Yale law professor Oona Hathaway agrees. “The urgent request for additional temporary measures takes into account what was happening at the time” as the attack on Rafah was unfolding, she said. “It seems implausible that the court means that it has found nothing of concern at this time.”
The two justices who did not join the opinion also interpreted its requirements narrowly. Judge Aharon Barak wrote that the order required Israel to cease operations in Rafah “only to the extent necessary to protect the Palestinians in Gaza from possible genocide,” an obligation Israel had already undertaken. Judge Julia Sebutinde wrote that the order did not “completely ban” Israeli operations in Rafah, but partially limited the offensive “to the extent that it concerns rights under the Genocide Convention.”
Israel denies that its actions in Rafah could cause the destruction of Palestinian civilians in Gaza.
“Israel has not and will not take military action in the Rafah area, which could lead to living conditions for Palestinian civilians in Gaza that could lead to total or partial material destruction,” said the chairman of Israel’s National Security Council. a spokesperson for the Ministry of Foreign Affairs said in a joint statement on Friday. (The Israeli military and defense ministry did not respond to my requests for comment.)
overtaken by events
While legal scholars ponder the semantics of the court order, Rafa’s situation has changed.
“To some extent, the debate among academics and the wider public over the precise contours of the ICJ order has been superseded by the events of the weekend,” said Professor Becker of Trinity College, Dublin, referring to Israel’s decision on Rafah. attack.
He added: “I think the nature of what happened in Rafah over the weekend is indicative of exactly the type of risk that the ICJ order is intended to prevent, regardless of which interpretation it is.”
