Israel has asserted that Sunday’s attack, which set ablaze a crowded refugee camp in Rafah and killed 45 Palestinians, is not in breach of last week’s International Court of Justice ruling – a directive widely seen to have instructed Israel to completely stop its military offensive in the southern Gaza city.
The apparent contradiction reflects a fierce and continuing debate over the ambivalent language of the ruling – and the placing of a single comma in a key sentence.
Israeli sources have claimed that a close reading of the order shows it was not as prescriptive as many thought and that the wording was a compromise deliberately open to different interpretations, so as to maximise support from the 15 Judges.
The ruling, passed by 13 votes to two, said Israel should: “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.”
That language reflects the 1948 Genocide convention, and much immediate media and diplomatic reporting interpreted the order as a blanket directive to end the offensive in Rafah.
But soon afterwards, the Israel foreign ministry suggested it was being directed to stop its offensive only if it was inflicting conditions that might lead to the physical destruction of the Palestinian population.
In a statement, the foreign ministry said:“Israel has not and will not conduct military actions in the Rafah area which may inflict on the Palestinian civilian population in Gaza conditions of life that could bring about its physical destruction in whole or in part”. In effect, Israel argues that the court ruling does not apply because the Israeli military is not carrying out the prohibited actions.
That interpretation was supported by one of the dissenting judges, Israel’s former supreme court president Aharon Barak, who served as an ad-hoc judge on the ICJ bench. In his opinion, he wrote that the majority decision “requires Israel to halt its military offensive in the Rafah governorate only in so far as is necessary to comply with Israel’s obligations under the genocide convention”.
Therefore, according to Barak, “the measure is a qualified one” that does not prevent Israel continuing its operations in Rafah “as long as it fulfils its obligations under the genocide convention”.
The other dissenting judge, the Ugandan jurist Julia Sebutinde, also argued that the order “operates to partially restrict Israel’s offensive in Rafah to the extent it implicates rights under the genocide convention”.
Sebutinde wrote that the ruling “could be erroneously misunderstood as mandating a unilateral ceasefire in part of Gaza” and amounted to “micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives”.
The Romanian judge, Bogdan Aurescu, who was among the 13 judges to back the ruling, also said the order should have been clearer.
By contrast, the South African judge, Dire Tladi, who also backed the order, found the court had, “in explicit terms, ordered the state of Israel to halt its offensive in Rafah”.
The UK and US governments have not commented on the international court of justice order or expressed a preferred interpretation.
Alonso Gurmendi, a lecturer in international relations at the University of Oxford said the order had to be seen in the context of what the judges had said elsewhere about the offensive, including the statement that it entailed the further risk of irreparable damage to the plausible rights claimed by South Africa.
He wrote on social media: “My view is the court ordered Israel to halt its military offensive in Rafah, period. It also ordered Israel to halt any other action which may inflict on Palestinians conditions of life that could bring about their physical destruction in whole or in part.”
Amnesty International also argued that the ruling was unambiguous, with Heba Morayef, the human rights group’s regional director for the Middle East and north Africa, writing: “With this order the international court of justice (ICJ) – the UN’s principal court – has made it crystal clear: the Israeli authorities must completely halt military operations in Rafah, as any ongoing military action could constitute an underlying act of genocide.”
