As soon as the International Court of Justice (ICJ) read out its order on Friday, news sites around the world were reporting the court had ordered Israel to halt its military offensive on Rafah.
But the wording of the order and the accompanying declarations and dissents of some of the court’s judges suggested another possible interpretation: that it is only those military actions that are genocidal that must be halted. Israel has already seized this gap of ambiguity.
In a joint statement on Friday, its head of the National Security Council and foreign affairs ministry spokesperson 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.” It seems likely Israel will press ahead in Rafah.
South Africa had gone back urgently to the World Court for new interim orders — called “provisional measures” — in its ongoing genocide case against Israel. South Africa asked for three new provisional measures, key among them an effective ceasefire order: that Israel “cease its military operations in the Gaza Strip, including the Rafah Governorate and ... immediately, totally and unconditionally withdraw the Israeli army from the entirety of the Gaza Strip”.
No power on earth will stop Israel from protecting its citizens and going after Hamas in Gaza
— Israeli spokesperson Avi Hyman
The court said it agreed new provisional measures were warranted. The humanitarian situation in Rafah was “now to be characterised as disastrous” and its previous orders did not fully address the deteriorating situation. The court was “not convinced” measures Israel had put in place to safely evacuate people from Rafah or information provided about water, sanitation, food, medicine and shelter at Al-Mawasi — the place Israel had designated for those evacuating from Rafah — were sufficient to alleviate the imminent risk. Israel had not sufficiently dispelled the concerns raised by its military offensive in Rafah, said the court.
But the court said it did not have to give the exact order sought by South Africa. It could “indicate provisional measures other than those requested”.
When it came to South Africa’s ceasefire request, the relevant part of the court’s order says: “The State of Israel shall ... 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.”
The “conditions of life” wording is a reference to the definition of genocide in the Genocide Convention. So here the court was talking about genocidal actions.
When the order was being read out by the president of the court, Nawaf Salam, it sounded very clear: Israel was to immediately halt its military offensive in Rafah. Any other actions that may be genocidal must similarly be halted. But as soon as the written text came, doubts set in and academics began to argue furiously on X.
Three judges wrote accompanying “declarations” — opinions accompanying the order, which they supported, and two judges wrote dissents.
As judge Bogdan Aurescu said in his declaration — the order “is somehow unclear as to whether the last part of it (starting with ‘which may inflict’) only refers to ‘any other action’ ... or to both halting the Israeli military offensive and ‘any other action’.”
Aurescu said, in his view, “it needs to be interpreted that it indicates as well the halt of the Israeli military offensive to the extent that it ‘may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part’”. Judge Georg Nolte, in his declaration, debatably supported this interpretation.
The two dissenting judges, Julia Sebutinde and Aharon Barak, were emphatic in their dissents that the majority order has the interpretation supported by Aurescu.
But judge Dire Tladi, in his declaration, said: “Today, the Court has, in explicit terms, ordered the State of Israel to halt its offensive in Rafah”. A plain reading of the order on its face would support Tladi’s reading. If the order was meant to distinguish between genocidal and non-genocidal military actions, there were so many clearer ways to say so.
In any event, the signs were that Israel would have pressed ahead with its Rafah offensive whatever the court had ordered. The day before the court ruled, Israeli spokesperson Avi Hyman on Thursday said “no power on earth will stop Israel from protecting its citizens and going after Hamas in Gaza”.
Perhaps more significant is the increased diplomatic pressure on Israel, and on the states supporting it, of yet another World Court order against it — and in even stronger and more specific terms.
The court also ordered Israel to keep open the Rafah crossing for humanitarian aid and to “ensure the unimpeded access” to Gaza of fact-finding missions mandated by competent organs of the UN to investigate allegations of genocide. It emphasised again its previous orders.
The decision of the ICJ closely follows the announcement on Monday by International Criminal Court (ICC) prosecutor Karim Khan KC that his office had applied for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and defence minister Yoav Gallant, along with three senior leaders of Hamas, Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (more commonly known as Deif), and Ismail Haniyeh, for war crimes and crimes against humanity.
The ICJ is a different court to the ICC. Unlike the ICJ, the ICC can prosecute individuals. When it comes to international criminal law, the ICJ has no jurisdiction over claims of war crimes or crimes that fall outside the Genocide Convention.
The ICC warrants must still be issued by the judges of its pretrial chamber. But if they are, this would be the first time that “Western” leaders would be charged under the ICC’s governing statute.
Israel and its biggest ally, the US, are not party to the Rome Statute — the statute that governs the ICC. But the warrants, if issued, will bind all the countries that are. Those countries that have ratified the Rome Statute would be under a duty to arrest Netanyahu, Gallant and the Hamas leaders if they came to their countries.
There would also be increased diplomatic pressure on countries supporting Israel with money and arms as they would be supporting a country whose leaders are wanted for crimes against humanity and war crimes.
In an interview with CNN on the day of his announcement, Khan was asked about threats to his office ahead of his announcement. He said he had been told by a senior elected leader: “This court is built for Africa and for thugs likely Putin.”
Khan told CNN senior anchor Christiane Amanpour: “We don’t view it like that.” He said the ICC was the legacy of Nuremberg. “This court should be the triumph of law over power and brute force ... And we’re not going to be dissuaded by threats or any other activities. Because, in the end, we have to fulfil our responsibility ... to something bigger than ourselves, which is fidelity to justice.”
He said his office had not sought warrants for genocide, which required a “specific intent” to destroy a group or a part of a group. But the investigation was ongoing and his team had not been allowed into Gaza, he said.
