I had two thoughts on Friday when I heard the chief justice of the International Court of Justice order Israel to halt its military offensive in Rafah, the city in southern Gaza where more than a million people were displaced earlier in the year. conflict.
First is that court ruling unusually strong: the judge said that Israel “must stop” the military offensive in Rafah “immediately”. Many observers did not expect the court to issue such a direct order because it does not have the authority to impose similar requirements on Hamas, Israel’s rival in the war.
My second thought is that the court’s use of punctuation is bound to cause debate. Here is the important part of the ruling:
The State of Israel, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening living conditions faced by the population of Rafah Governorate:
Immediately stop the military offensive and any other actions in the Rafah Governorate, which could expose the Palestinian population in Gaza to living conditions that could lead to total or partial physical destruction.
To be sure, for days some legal scholars have debated whether a clause beginning with “may cause damage” could set out the conditions for an “immediate cease and desist” order. Are not.
Has Israel been asked to stop its attack or only do so if that attack is about to partially or completely destroy the Palestinians as a group?
In some ways, the debate is a distraction. There is considerable consensus among legal experts that Israel cannot continue its current offensive in Rafah without violating the court order. Five leading legal scholars I contacted said the order was clear on that point, and many more said alike IN interview And social media posts online. (“The attack currently planned and executed is prohibited by any reading,” Written Adil Haque, international law expert at Rutgers University. “This verdict means that Israel must stop its current military offensive in Rafah,” Written Janina Dill, co-director of the Oxford Institute for Ethics, Law and Armed Conflict.)
These experts pointed out that a previous paragraph of the order provides important context and clearly explains the urgency of the court’s intervention:
“On the basis of the information before it, the Court is not satisfied that the evacuation efforts and related measures that Israel asserts were taken were intended to enhance the security of civilians in the Gaza Strip, and in particular those recently evacuated from Rafah Governorate, enough to reduce the enormous risks faced by the Palestinian people due to the military offensive in Rafah.”
The court went on to explain that that was the reason for the new order. Note the use of the word “currently” here: “The Court finds that the current situation arising from the Israeli military offensive in Rafah poses a further risk” to the rights of Palestinians in Gaza , the order said.
There To be instead there is more disagreement about what Israel can legally do. But that is not immediately relevant, because all indications are that Israel is continuing its current offensive despite the court’s directive to stop.
How did we get here?
In short: Friday’s order is an interim decision in a case that South Africa filed in December, alleging that Israel’s military actions in Gaza violated the 1948 Genocide Convention. The court only can rule on Israel’s behavior but not that of Hamas, because Hamas is not a state or a party to the genocide convention. Israel does is explicitly rejected that it is committing genocide.
A decision on the merits of the case is likely years away. Meanwhile, the court has issued a series of “provisional measures” – essentially temporary restraining orders – ordering Israel to proactively ensure genocide does not occur while the broader case awaits. handle.
Firstly, issued in January, ordered Israel to refrain from acts of genocide, prevent and punish incitement, and authorize the provision of humanitarian assistance. A subsequent order in March added a requirement that Israel implement “all necessary and effective measures” to ensure the delivery of humanitarian aid “at scale.”
In early May, after Israel began its military operation in Rafah, South Africa urgently requested new interim measures, arguing that the Rafah offensive would cause “irreparable harm to with the rights of the Palestinian people in Gaza”. On Friday, by a majority of 13 to 2, the court’s judges found that the risks to civilians warned of in previous orders had now materialized and the situation had become “catastrophic.” ”.
The court found: “Israel did not provide adequate information regarding the safety of the population during the evacuation process,” “or the availability in the Al-Mawasi area of water, sanitation, food , medicine and shelter needed for 800,000 people.” The Palestinians have evacuated so far.” (Al-Mawasi is the coastal area in Gaza where many civilians in Rafah have been displaced.)
The court found that created a risk of “irreparable prejudice to the legitimate rights claimed by South Africa,” and it therefore ordered Israel to stop the military attack in Rafah. It also ordered Israel to keep the Rafah crossing on its border with Egypt open “on a large scale” to deliver humanitarian aid and allow UN-mandated investigators access to Gaza.
One command, two commas, many opinions
Some experts have noted that when the ICJ ordered Russia to halt the war in Ukraine in March 2022, more direct expression: “The Russian Federation will immediately suspend military operations starting on February 24, 2022 on the territory of Ukraine,” that provisional measures order states. (In that case, the verdict was also 13 to 2.)
So why was the court a bit vague in this case? Yuval Shany, a professor of international law at the Hebrew University in Jerusalem, said this was likely an intentional act. Perhaps the vague language helped convince more judges to sign the order, he said, even if they disagreed on a single interpretation of its meaning. Shany noted that there is actually a term for that phenomenon in international law. The term “constructive ambiguity,” he says, refers to when “you can’t really reach a consensus formula, so you use language that everyone can accept.”
It would probably be easier to persuade a majority to agree to the clear order in the Russia case, after the invasion of Ukraine, because the invasion of another country’s territory is prohibited by international law. In contrast, Israel’s military operations were in response to Hamas’ attack on Israeli soil last October. The use of force in self-defense is permitted under international law, although it remains subject to other laws of war as well as prohibitions on genocide and other crimes.
Three of the justices who joined the majority in last week’s decision wrote separately to explain their interpretation of the order. Each pointed out that there would be some circumstances in which certain types of military activities could continue: if such activities did not “expose to the Palestinian population in Gaza living conditions that could lead to to total or partial physical destruction” (Judge Bogdan Aurescu); if they do not prevent the provision of urgently needed basic services and humanitarian assistance (Judge Georg Nolte); or if they are limited to “defensive operations aimed at repelling specific attacks”, carried out in accordance with international law (Judge Dire Tladi).
But no one seemed to be saying the practice could continue in its current form — and Judge Tladi explicitly ruled it out.
“What is inconsistent is the continued offensive military operations in Rafah and elsewhere,” he wrote.
All the experts I spoke with agreed that the ban prohibits Israel from continuing its current operations in Rafah, but believe it allows Israel to take more limited defensive actions in the city in response to attacks. attack from Hamas.
Pierre d’Argent, a professor at the University of Louvain in Belgium, initially took a relatively restrained view of the court’s order in his ruling. social media postswhere he argued that the court ordered Israel only to “change the course of its military operations and not stop them all together in Rafah.”
But when I contacted him, d’Argent told me via email that in reality, “the issue is quite simple” and that in his view, Israel cannot continue its current military operations .
“Because the court’s concern is that the humanitarian situation is worsening, aid cannot be distributed if military operations continue as they are,” he said. “They must therefore end as they are (i.e. as they are currently underway), but the court does not prohibit all military action in Rafah.”
Stefan Talmon, professor of international law at the University of Bonn in Germany, said in an interview with Der Spiegel, a German newspaper, said the order only allows continued military operations if Israel ensures civilians are provided with food, water and medicine. However, he believes that this will be difficult to do in practice. Therefore, in effect, the attack had to be halted.
Michael Becker, a law professor at Trinity College, Dublin, has a clearer explanation. “I interpreted this language to mean that the military offensive in Rafah needs to be paused,” he said. The discussion in the decree about the worsening humanitarian disaster, he added, makes it clear that the current military offensive “has created a situation that could inflict on the Palestinian population in Gaza, living conditions that may lead to total or partial physical destruction”.
Oona Hathaway, a law professor at Yale University, agrees. “The urgent request for additional interim measures is because of what is happening right now,” she said, in the ongoing offensive against Rafah. “It seems unreasonable that the court’s point is that they do not currently see anything of concern.”
The two justices who did not join the opinion also had narrow interpretations of its requirements. Judge Aharon Barak wrote that the order required a halt to Israeli activities in Rafah “only to the extent necessary to protect the Palestinian population in Gaza” from the possibility of genocide, and that Israel had that obligation. Judge Julia Sebutinde wrote that the order did not “completely prohibit” Israel from operating in Rafah, but partially limited the attack “to the extent it relates to rights under the Genocide Convention.”
Israel has denied that its operation in Rafah risks annihilation of Palestinian civilians in Gaza.
The head of the Israeli National Security Council and Chairman of the Israeli National Security Council said: “Israel has not and will not carry out military actions in the Rafah area, which could cause harm to the Palestinian people in Gaza living conditions that could lead to total or partial physical destruction.” An Israeli Foreign Ministry spokesman said in a statement General statement on Friday. (The Israeli Army and Ministry of Defense did not respond to my request for comment.)
Overtaken by events
Even as legal scholars ponder the semantics of the court order, the situation in Rafah continues to evolve.
Becker, a professor at Trinity College, Dublin, said: “In some ways, the debate among scholars and the wider public about the precise contours of the ICJ order has been superseded by events weekend”. Strike in Rafah on Sunday killed at least 45 people, including children, and injured 249.
He added: “I think the nature of what happened in Rafah over the weekend demonstrates exactly the kind of risks that the ICJ order is intended to prevent, on both readings.”
