On Friday 24 May, the International Court of Justice handed down an order by a vote of 13–2 that was widely interpreted as calling on Israel to halt its military operation in Gaza.
Certainly, this is how Australian media interpreted it. This from the ABC, by way of example: “The strike came two days after the International Court of Justice ordered Israel to end its military offensive in Rafah.” The Nine papers use similar language: “Israel has kept up its offensive despite a ruling by the top UN court last week ordering it to stop”.
While Foreign Minister Penny Wong hasn’t commented on it, Climate Change Minister Chris Bowen appears to have also interpreted it this way (though his words are more ambiguous than media reporting). He said,
“Rafah has been the closest thing we have to a haven for people escaping within Gaza. We have been very consistent that Rafah should not be attacked. We are very consistent that the rulings, the binding rulings of the ICJ should be abided by all parties — including Israel. Either you comply with international law, or you don’t. Australia believes international law should be complied with. Australia believes the rulings, the binding rulings should be complied with, and we believe Rafah should not be invaded by Israel.”
What did the ICJ order say?
The operative paragraph reads:
“The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”.
There are two ways to interpret this:
Israel is interpreting the ruling as being the second.
What do the ICJ judges say?
There are 15 judges on this case. Five of those judges chose to release explanations for the way they voted. Four of those explanations support Israel’s interpretation—that the Court’s order does not mean Israel must halt its Rafah operation. One of those believes it does.
Two dissenting judges
Two of the five explanations were by the two dissenting judges. Those two judges (one of which is the vice president of the court) interpreted the ICJ ruling as not requiring Israel to halt all military activity in Rafah.
Ugandan Judge Julia Sebutinde (who is also the vice president of the court) wrote,
“This measure does not entirely prohibit the Israeli military from operating in Rafah. Instead, it only operates to partially restrict Israel’s offensive in Rafah to the extent it implicates rights under the Genocide Convention. However, as stated above, this directive may be misunderstood as mandating a unilateral ceasefire in Rafah and amounts to micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives, while leaving its enemies, including Hamas, free to attack without Israel being able to respond”.
It is of note that she specifically warned that the order might be misinterpreted as a demand for Israel to halt all Rafah operations.
Israeli Judge ad hoc Aharon Barak wrote,
“Israel is not prevented from carrying out its military operation in the Rafah Governorate as long as it fulfils its obligations under the Genocide Convention. As a result, the measure is a qualified one, which preserves Israel’s right to prevent and repel threats and attacks by Hamas, defend itself and its citizens, and free the hostages.”
(Barak is not a judge in the Court. However, if a country is taken to the ICJ and does not have a judge representing that country on the court, an ad hoc judge – nominated by the country – will sit on the panel for that case. Barak is a former chief justice of the Israeli High Court.)
Three declarations
Three judges who voted in favour of the order provided declarations to explain their decisions. Two of them stated that Israel is not obliged to halt all military activity in Rafah; one stated that Israel is.
German Judge Georg Nolte wrote,
“The measure obliging Israel to halt the current military offensive in Rafah is conditioned by the need to prevent “conditions of life that could bring about [the] physical destruction in whole or in part” of the Palestinian group in Gaza. Thus, this measure does not concern other actions of Israel which do not give rise to such a risk.”
Romanian Judge Bogdan Aurescu wrote,
“I do believe that the Court should have used the opportunity of the present Request and Order to make clear that the provisional measures indicated, especially the second one referring to the “halt [of] [Israel’s] military offensive, and [of] any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction”, do not affect in any way the legitimate right of Israel to undertake actions, which should be conducted in strict conformity with international law, including in a manner responding to the criteria of proportionality and necessity, to protect its civilian citizens and to free the hostages still held in the Rafah area by Hamas and other armed groups.”
It is of note that in his declaration, Aurescu noted (paragraph 5), that the Court had now and previously—despite South Africa’s requests—declined to order Israel to halt all military operations in Gaza.
South African Judge Dire Tladi wrote,
“The Court has ordered Israel to “halt its military offensive in Rafah”. The reference to “offensive” operations illustrates that legitimate defensive actions, within the strict confines of international law, to repel specific attacks, would be consistent with the Order of the Court. What would not be consistent is the continuation of the offensive military operation in Rafah, and elsewhere, whose consequences for the rights protected under the Convention on the Prevention and Punishment of Genocide has been devastating.”
Do we discount Israel and South Africa?
Israel is the defendant in this case, and South Africa is the applicant. It might not be surprising that the Israeli judge found in favour of Israel and the South African judge found in favour of South Africa. If these judge’s votes and explanations are discounted, we are left with three judges who explicitly interpreted the Court’s order as not being a demand to halt all military operations. This finding is particularly persuasive given that two of these three judges voted in favour of the order.
What happens next?
ICJ decisions are not enforceable. However, if a country is accused of ignoring an ICJ decision or order, the UN Security Council can vote on a resolution to this effect – which can be enforceable.
While it is likely the US would veto any such resolution (although this is not guaranteed), if this is brought before the Security Council, it would be an opportunity to hear how each country interprets the decision by the ICJ.
