Ambiguous International Court ruling unlikely to end Rafah military operations
An ambiguously worded ruling by the International Court of Justice does not rule out continued military operations in Rafah, Israeli officials said on Sunday, with one analyst saying Israel’s refutation of claims of “genocide” should end the ICJ’s jurisdiction once and for all.
The International Court of Justice in The Hague, Netherlands. Credit: Wikimedia Commons.
From its seat in The Hague, the ICJ issued an emergency ruling on Friday, with Lebanese Judge Nawaf Salam, president of the court, calling on Israel to “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.”
While the ruling was approved by a vote of 13-2, four of the court’s 15 judges interpreted the ruling to mean the Israel Defence Forces may continue their activities in Rafah against Hamas as long as the operations do not carry a risk of genocide. This was the view expressed by Israeli ad hoc Judge Aharon Barak and ICJ Vice President Judge Julia Sebutinde of Uganda, who voted in the minority. Supporting that interpretation were Judges Georg Nolte of Germany and Bogdan Aurescu of Romania.
South African Judge Dire Tladi interpreted the ruling as a ban on “offensive” army operations but left the door open to “defensive” activities in response to Hamas attacks.
The other ten judges did not make their views clear on the matter.
Suggesting that Israeli will continue its activities in Rafah, National Security Tzachi Hanegbi told Channel 12 news on Saturday, ““What they are asking us, is not to commit genocide in Rafah. We did not commit genocide and we will not commit genocide.”
‘Micromanaging Israel’s Fight for Survival’
“In my opinion, there is no point in providing an in-depth analysis of an interim order, given in defiance of the object and purpose of the Genocide Convention. The ICJ should be condemned for being yet another UN political organ, that shows no respect for law and justice,” Israeli jurist Talia Einhorn, a Professor of Law told The Press Service of Israel.
Einhorn, a Titular Member of the Paris-based International Academy of Comparative Law, told TPS-IL, “By holding that it is plausible that Israel is committing genocide in Gaza, the Court has turned the Convention on its head. It is a shame that only Julia Sebutinde, the Honorable Vice-President of the ICJ held that, in the absence of any evidence of genocide, the ICJ had no jurisdiction to adjudicate and therefore no jurisdiction to make interim orders. The Court is not competent to micromanage Israel’s fight for survival.”
Einhorn stressed, “The Convention makes it the duty of every contracting state to combat genocide. Yet when Israel was compelled to protect its citizens from genocide, it found itself accused of the crime its duty it was to prevent. Israel provided the ICJ with evidence proving that it has done its best, way beyond the requirements set by international law, to keep civilians out of harm’s way.”
Israel, she added, “While fighting for its own survival, calls for the evacuation of enemy civilians, provides evacuation routes and half a million tons of humanitarian assistance, cannot be said to commit genocide. The ratio of civilian to military Gazan casualties is among the lowest in the history of warfare.”
Rafah sits on the Gaza-Egypt border and is Hamas’s last stronghold with an estimated four battalions. Israel’s delegation of the ICJ told the judges that of the 700 tunnels located in Rafah by the army, approximately 50 crossed into Egypt. Those tunnels are used for weapons smuggling, and could also be used to take hostages out of the Strip.
Israel took control of the Palestinian side of the Rafah border crossing on May 7 to prevent Hamas from commandeering humanitarian aid deliveries from Egypt.
South Africa petitioned the ICJ to issue an injunction against Israel’s military campaign,
claiming it is intended to cause “the destruction of the population” of the Gaza Strip. On May 17, it further asked the court to issue an emergency injunction in Rafah, claiming Israel was commiting “genocide.”
Israel accused South Africa of “distorting the truth,” “abusing court procedures,” and seeking to assist Hamas for political reasons. The Israeli delegation also argued that South Africa is trying to get the ICJ to “micromanage” the war, which is beyond the court’s mandate.
Although Israel is not a party to the ICJ and rejects its jurisdiction, an injunction could be enforced by the UN Security Council.
At least 1,200 people were killed, and 252 Israelis and foreigners were taken hostage in Hamas’s attacks on Israeli communities near the Gaza border on October 7. Of the 125 remaining hostages, 39 are believed dead.
