As I listened to the chief judge of the International Court of Justice on Friday order Israel to halt its military attacks on Rafah, a city in southern Gaza that saw more than a million displaced people flee in the early days of the conflict, I thought two things.
First, the court's ruling was unusually aggressive: The judges said Israel “must immediately cease” its military attacks in Rafah. Many observers did not expect the court to issue such a direct order, because it lacks the authority to impose similar demands on Hamas, Israel's wartime adversary.
My next thought was that the Court’s use of punctuation would undoubtedly be controversial. The key parts of the decision read as follows:
The State of Israel, 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 faced by the civilian population in Rafah governorate, will take the following measures:
Immediately cease military attacks in Rafah Governorate and all other actions that could impose living conditions on the Palestinian population in the Gaza Strip that could lead to their physical destruction, in whole or in part;
Sure enough, for days some legal scholars debated whether the clause beginning with “may give” could condition the order “to cease immediately.”
Was Israel instructed to stop its attacks, or to stop only if the attacks came close to partially or completely destroying the Palestinian people as a group?
In some ways, this debate is a distraction. There is a fair amount of agreement among legal experts that Israel has no choice but to violate the court order to continue its current attack in Rafah. Five prominent legal scholars I contacted said the order is clear on that point, and several more said the same in interviews and interviews. Social media Posts “The currently planned and executed attacks are prohibited under any interpretation,” Adil Haqq, an international law expert at Rutgers University, wrote online. “This ruling means that Israel must stop its current military offensive in Rafah.” I have written Janina Dill, co-director of the Oxford Institute for Ethics, Law and Armed Conflict;
These experts noted that the Order's preceding paragraphs provided important context and clearly explained the urgency of the Court's intervention.
“Based on the information submitted, the Court is not convinced that the evacuation efforts and related measures that Israel purportedly has undertaken to enhance the safety of civilians in the Gaza Strip, particularly those recently evacuated from Rafah Governorate, are sufficient to mitigate the enormous risks to which the Palestinian population is exposed as a result of military attacks in Rafah.”
The Court explained that this was the reason for the new order. Note the use of the word “current” here: “The Court finds that the current situation resulting from the Israeli military attack in Rafah involves further danger to the rights of Palestinians in the Gaza Strip,” the order states.
There teeth There is wide disagreement about what Israel can legally do instead, but that is not immediately relevant, since all indications are that Israel will continue with its current attacks despite the court's stay.
How did we get here?
In summary, Friday's order is an interim decision on a lawsuit filed by South Africa in December, alleging that Israel's military actions in Gaza violate the 1948 Genocide Convention. Because Hamas is not a state party to the Genocide Convention, nor a signatory to it, the court can only rule on Israel's actions, not Hamas'. Israel categorically denies that it is committing genocide.
A substantive decision in the case is likely to be years away. In the meantime, the court has issued a series of “interim measures” (essentially temporary injunctions) ordering Israel to take aggressive steps to prevent genocide from occurring while the case is pending.
The first order, issued in January, ordered Israel to refrain from acts of genocide, prevent and punish incitement to do so, and enable the delivery of humanitarian aid. A subsequent order, issued in March, added a requirement that Israel take “all necessary and effective measures” to ensure the delivery of humanitarian aid “on a large scale.”
After Israel launched its military operation in Rafah in early May, South Africa urgently requested new interim measures, arguing that the Rafah invasion had “caused irreparable damage to the rights of Palestinians in the Gaza Strip.” On Friday, by a majority of 13-2, the court's judges ruled that the danger to civilians warned about in a previous order had now become a reality and the situation had become “dire.”
“Israel has not provided sufficient information about the safety of residents during the evacuation process,” the court ruled, “nor has it provided sufficient information about the availability of water, sanitation, food, medicines and shelter in the quantities required for the 800,000 Palestinians displaced so far in the Al-Mawasi area” (the coastal area of Gaza where many of Rafah's civilians were evacuated).
The court ruled that this created a risk of “irreparable harm to South Africa's legitimate rights” and ordered Israel to halt its military attacks in Rafah. It also ordered Israel to “largely” open the Rafah crossing on the border with Egypt to provide humanitarian aid and allow UN-commissioned investigators into Gaza.
One command, two commas, many opinions
Some experts point out that when the ICJ ordered Russia to stop fighting in Ukraine in March 2022, the language was more direct: “The Russian Federation shall immediately cease the military operations it began on February 24, 2022, on the territory of Ukraine,” the provisional measures order stated. (The ruling in that case was also 13-2.)
So why did the court offer even a little ambiguity in this case? Yuval Shany, a professor of international law at the Hebrew University of Jerusalem, said that may have been intentional. The vague language may have helped convince more judges to sign the order, even if they couldn't all agree on how to interpret its meaning, he said. In international law, Shany noted, there's actually a term for this phenomenon. The term “constructive ambiguity” refers to when “you can't really reach a consensus, so you use language that everyone can agree on,” he said.
In the case of Russia after its invasion of Ukraine, it may have been easier to convince most people to agree with a clear mandate, since international law prohibits invading the territory of another state. In contrast, Israel's military operation was carried out in retaliation for Hamas' attack on Israeli territory last October. The use of force in self-defense is permitted under international law, but is still subject to other laws of war and prohibitions on genocide and other crimes.
Three of the judges who joined the majority in last week's ruling each explained their interpretation of the order in separate written statements. Each suggested that there are circumstances in which certain types of military operations can continue if they “do not impose living conditions on the Palestinian population in the Gaza Strip that could lead to their total or partial physical destruction” (Judge Bogdan Aurescu), do not impede the provision of urgently needed basic services and humanitarian assistance (Judge Georg Nolte), or are limited to “defensive operations to repel specific attacks” carried out in accordance with international law (Judge Dire Tladi).
However, no one seemed to have said the operation could continue in its current form, which Judge Tladi categorically denied.
“What is inconsistent is the continuation of aggressive military operations in Rafah and elsewhere,” he wrote.
All the experts I spoke with agreed that the order prevents Israel from continuing its current operations in Rafah, but it does allow Israel to take more limited defensive action in the city in response to Hamas attacks.
Professor Pierre Dargent of Belgium's University of Leuven initially appeared to take a relatively restrictive view of the court's order, arguing in social media that the court had only ordered Israel to “change the course of its military operations, but not to completely halt military operations in Rafah.”
But when I contacted Dargent, he told me via email that in fact “the issue is fairly simple” and that, in his view, Israel cannot continue its current military operation.
“The court's concern is the deterioration of the humanitarian situation, so aid cannot be distributed as long as military operations continue in their current form,” he said. “Therefore, military operations must be stopped (as they are currently being carried out), but the court has not banned any military action in Rafah.”
Stephan Talmon, a professor of international law at Germany's University of Bonn, said in an interview with the German newspaper Der Spiegel that the order only allowed the military operation to continue if Israel guaranteed food, water and medicines for civilians, but he thought that would be difficult to implement in practice, so the attacks had to be effectively called off.
Michael Becker, a law professor at Trinity College Dublin, offered a more categorical interpretation: “I interpret this language as meaning simply that the military attack in Rafah needs to cease,” he said. He added that the order's discussion of the worsening humanitarian disaster makes it clear that the current military offensive “has already created a situation that is imposing living conditions on Palestinian groups in the Gaza Strip that may result in their physical destruction, in whole or in part.”
Yale law professor Oona Hathaway agreed: “The request for additional emergency interim measures at the time the attacks on Rafah were underway was based on exactly what was happening at the time,” she said. “It's just hard to believe that the court is trying to say that there's nothing happening at this point that we need to be concerned about.”
The two dissenting judges also interpreted the requirement narrowly. Judge Aharon Barak wrote that the order ordered Israel to halt operations in Rafah “only to the extent necessary to protect Palestinian groups in the Gaza Strip from potential genocide,” an obligation Israel already has. Judge Julia Sevtinde wrote that the order did not “completely prohibit” Israel from operating in Rafah, but only partially limited the attacks “to the extent that it impinges on rights under the Genocide Convention.”
Israel denies that the operation in Rafah poses any danger to Palestinian civilians in the Gaza Strip.
“Israel has not and will not conduct any military action in the Rafah area that could impose living conditions that would be physically destructive, in whole or in part, on the Palestinian civilian population of the Gaza Strip,” the chairman of Israel's National Security Council and a spokesman for Israel's Foreign Ministry said in a joint statement on Friday. (The Israeli army and Defense Ministry did not respond to my requests for comment.)
be overtaken by events
While legal scholars ponder the meaning of the court's order, Rafah's situation is already changing.
“In a sense, this debate among academics and the general public about the precise contours of the ICJ order has been superseded by the events of the weekend,” Professor Becker of Trinity College Dublin said, referring to an Israeli attack in Rafah on Sunday that killed at least 45 people, including children, and injured 249.
“I think the nature of the events that took place at Rafah over the weekend, in either interpretation, demonstrates exactly the kind of risk that the ICJ order was intended to prevent,” he added.