Saturday, May 25, 2024

Halt: The International Court of Justice and the Rafah Offensive


by Adil Ahmad Haque
May 24, 2024


LONG READ


On May 24, 2024, the International Court of Justice indicated provisional measures for the third time in the case brought by South Africa against Israel alleging violations of the Genocide onvention in the Gaza Strip. The Court ordered Israel to

“[i]mmediately 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 Court also ordered Israel to open the Rafah crossing, to allow United Nations fact-finders to enter Gaza, and to report to the Court within one month regarding its compliance with the Court’s orders. The Court also reaffirmed its prior orders and reiterated its call for the immediate and unconditional release of all hostages held by Hamas and other armed groups.

The Court’s principal order is somewhat ambiguous, but its practical import is clear. Israel must refrain from any action in Rafah that risks killing a substantial part of the Palestinian group, either through bombardment or through displacement to areas where they will not long survive. The Court found that Israel’s current military offensive is such an action. This military offensive seeks to expel hundreds of thousands of civilians from Rafah without providing for their most basic needs, followed by air and ground operations that will kill many of the civilians who remain. This military offensive must immediately halt. Israel may engage in other military operations in Rafah that do not carry such risks, including limited responses to rocket fire and precise hostage rescue operations. But the current military offensive unfolding before our eyes must stop.
The Order

The Court first established that the situation in Gaza has sufficiently changed since its second order of March 28 to justify indicating new provisional measures. The Court found that the “catastrophic humanitarian situation” in Gaza “has deteriorated” and “is now to be characterized as disastrous.” The Court found that these developments, “which are exceptionally grave, in particular the military offensive in Rafah and the resulting repeated large-scale displacement of the already extremely vulnerable Palestinian population in the Gaza Strip [including 800,000 displaced as of May 18], constitute a change in the situation.” The Court also found that its prior orders “do not fully address the consequences arising from the change in the situation.”

The Court then established that the general legal criteria for the indication of provisional measures are met. The Court reaffirmed that it has prima facie jurisdiction to hear the case. It also reaffirmed that at least some of the rights claimed by South Africa are plausible, including “the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts” under the Genocide Convention.

Most importantly, the Court found that “the current situation arising from Israel’s military offensive in Rafah entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa and that there is urgency, in the sense that there exists a real and imminent risk that such prejudice will be caused before the Court gives its final decision.”

The Court observed that “senior United Nations officials have consistently underscored the immense risks associated with a military offensive in Rafah” and “warned that an assault on Rafah would put ‘hundreds of thousands of people … at imminent risk of death’ and would severely impact the humanitarian operation in the entire Gaza Strip, which is run primarily out of Rafah.” The Court noted that “United Nations sources indicate that the above-mentioned risks have started to materialize and will intensify even further if the operation continues,” observing that Israel’s military offensive has already disabled critical hospitals and rendered food warehouses inaccessible.

Crucially, the Court found Israel’s assurances unconvincing, writing that:


On the basis of the information before it, the Court is not convinced that the evacuation efforts and related measures that Israel affirms to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah Governorate, are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah. …

The Court observes that Israel has not provided sufficient information concerning the safety of the population during the evacuation process, or the availability in the Al-Mawasi area of the necessary amount of water, sanitation, food, medicine and shelter for the 800,000 Palestinians that have evacuated thus far. Consequently, the Court is of the view that Israel has not sufficiently addressed and dispelled the concerns raised by its military offensive in Rafah.

The Court concluded that additional provisional measures are urgently needed to preserve the rights of the Palestinians of Gaza under the Genocide Convention from real and imminent risk arising from Israel’s current military offensive. In my view, this stark finding demands immediate action from the international community, including from the United Nations Security Council.
The Measures

The Court reaffirmed its prior orders, then indicated four new provisional measures, each by an overwhelming vote of 13-2, ordering 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

Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance

Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide

[S]ubmit a report to the Court on all measures taken to give effect to this Order, within one month as from the date of this Order.

All four measures are important. The order to keep open the Rafah crossing is striking for its specificity. The order to allow UN-mandated investigative bodies into Gaza could significantly enhance independent and impartial fact-finding. The reporting requirement ensures that Israel will remain accountable to the Court for its compliance or lack thereof.

The first measure is the most important. Its formulation is somewhat ambiguous, but the ambiguity makes no practical difference.

The order is most naturally read to mean that Israel must immediately halt


(i) its military offensive in the Rafah Governorate, and

(ii) 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.

This reading slightly deviates from the text by specifying the military offensive at issue and by ignoring the second comma.

Alternatively, one could read the order to mean that Israel must immediately halt


(i) its military offensive 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, and

(ii) 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.

This reading is somewhat awkward, since the same words (‘which many inflict …’) perform two different functions, first describing a specific action (‘its military offensive’) then defining a general category of actions (‘any other action’).

Finally, one could read the order to mean that Israel must immediately halt


(a) its military offensive in the Rafah Governorate 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 and

(b) 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.

This reading substantially rewrites the order, inserting words (“to the extent that it”) that it does not contain and qualifications where they do not seem to belong. Nevertheless, as we shall see, two judges prefer this reading.

On any of these readings, Israel may not continue its current military offensive in Rafah as currently planned. As a matter of fact, the Court specifically found that the current offensive exposes the civilian population to “immense risk” of mass death from starvation and disease. As a matter of law, the Court found a real and imminent risk of irreparable prejudice to rights under the Genocide Convention. These findings are equivalent to a finding that the current military offensive may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part. Therefore, the current offensive as currently planned and executed is prohibited under any reading. The current military offensive must immediately halt, and so must any other action that carries similar risks.

At the same time, Israel may carry out limited military operations to respond to specific attacks or to rescue hostages. It makes no practical difference whether we say that Israel must halt its current military offensive but may carry out distinct and limited military operations (the first reading) or may-continue-but-must-limit its current military offensive to avoid the “immense risk” it currently poses to group survival (the third reading). The result is the same.
The Separate Opinions

Three judges wrote declarations and two wrote dissenting opinions. These opinions raise many interesting legal issues, only some of which are discussed below.

Judge Tladi wrote that “[t]he 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.” As noted above, this is the more natural reading of the Court’s order.

Judge Aurescu wrote that the principal order is “unclear as to whether the last part of it (starting with ‘which may inflict’) only refers to ‘any other action’ (which is not defined) or to both halting the Israeli military offensive and ‘any other action’. In my view, this measure needs to be interpreted [so] 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.’” As noted above, this rewrites the Court’s order, inserting words (‘to the extent’) that it does not contain.

Judge Aurescu also wrote that the Court’s order “do[es] 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.” Assuming this passage refers to protecting Israeli civilians from specific attacks, and not from the long-term threat posed by Hamas and other armed groups, then there is no practical difference between Aurescu’s interpretation and Tladi’s.

Judge Nolte wrote that he “remain[s] unconvinced that the evidence presented to the Court provides plausible indications that the military operation undertaken by Israel as such is being pursued with genocidal intent…. The reason for today’s measure is, in my view, that Israel has not sufficiently demonstrated that it can ‘enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians’ without limiting its current military offensive in Rafah.” Judge Nolte noted “the repeated interruptions of humanitarian aid deliveries by private Israeli citizens, which the police and the military have not prevented,” as well as “continuing significant incendiary public speech in Israel, including by senior Israeli officials” including Israeli Minister of Finance Bezalel Smotrich and Minister of National Security Itamar Ben Gvir. Judge Nolte therefore found “a risk for access to humanitarian aid urgently needed to ensure the survival of the Palestinian people in Gaza.”

Judge Nolte wrote that “[t]he reason for today’s measure is, in my view, that Israel has not sufficiently demonstrated that it can ‘enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians’ without limiting its current military offensive in Rafah.” According to Judge Nolte, “I considered it justified that the Court specify that [its prior orders] limit the current military offensive in Rafah as far as it could endanger the rights of the Palestinian people under the Genocide Convention, notably their access to basic humanitarian needs. The Court’s Order does not address military operations outside Rafah and 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.” Again, whether we say that Israel must halt or limit its current offensive makes no practical difference. Either way, the current offensive cannot continue as currently planned, while limited military operations may be lawful.

Vice-President Sebutinde wrote a dissenting opinion setting out her understanding of the factual context and her reasons for voting against the new measures. Vice-President Sebutinde at times reads the Court’s orders narrowly to downplay them, at other times broadly to criticize them. She calls the measure “an overreach by the Court that has no link with South Africa’s plausible rights under the Genocide Convention” and that “implicitly orders Israel to disregard the safety and security of the more than 100 hostages still held by Hamas” then writes that “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.”

Finally, Judge ad hoc Barak wrote a dissenting opinion. Barak opens by attempting to portray a 13-2 vote to indicate a third set of provisional measures as a defeat for South Africa and a victory for Israel. According to Judge Barak, South Africa’s request was “rejected” and its “tactics failed” due to the “the specific, credible and up-to-date evidence provided by Israel, expertly and convincingly presented by its legal team during the hearings.” For anyone who reads the Court’s orders, or watched the oral proceedings, these passages are hard to take seriously.

More seriously, Judge Barak writes that “[t]he Court’s first measure is [] limited to offensive (and not defensive) military action in Rafah, and requires a halt only in so far as is necessary to protect the Palestinian group in Gaza from conditions of life that could bring about its physical destruction.” Barak goes on to write that “the measure is a qualified one, whichpreserves Israel’s right to prevent and repel threats and attacks by Hamas, defend itself and its citizens, and free the hostages.” Indeed, the Court’s order does not prohibit Israel from pursuing those aims in ways that do not risk mass death from bombardment, displacement, starvation, and disease. The Court’s order does not prohibit a hypothetical military operation that Israel might carry out in theory. Instead, the Court’s order prohibits the actual military offensive that Israel is carrying out in Rafah.
Image: The President of the Court, HE Judge Nawaf Salam Le président de la Cour, S. Exc. M. le juge Nawaf Salam delivers the Order of the Court on the request for the indication/modification of provisional measures submitted by South Africa in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) May 24, 2024.

About the Author(s)

Adil Ahmad Haque

Adil Ahmad Haque (@AdHaque110) is Executive Editor at Just Security. He is also Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School, Author of Law and Morality at War.


Israel's allies face genocide complicity if ICJ order is ignored — expert


If US and UK continue to support Tel Aviv and block attempts to hold it accountable, they may face charges of "complicity in genocide" outlined in Article III of Genocide Convention, says a legal expert.



REUTERS

The International Court of Justice has ordered Israel to "immediately" halt its invasion in Rafah. / Photo: Reuters

The ruling of International Court of Justice (ICJ) ordering Israel to halt its Rafah invasion is a step in the right direction, but the critical issue now is compliance, according to a noted legal expert.

"Israel's allies, such as the US and UK, cannot be complicit. This means, arms sales, for example, should be immediately suspended and states should not be providing diplomatic cover for Israel's egregious violations of international law, for example, by not vetoing any UN Security Council resolution focused on the compliance with this order," Zaki Sarraf, legal officer at the International Center of Justice for Palestinians (ICJP), told Anadolu Agency, hours after ICJ's new order.

If these countries continue to support Israel and block attempts to hold it accountable, they face the very real risk of facing charges of "complicity in genocide" outlined in Article III of the Genocide Convention, he said.

"If states such as the US and the UK provide diplomatic cover or they provide political cover or they continue selling arms to Israel, this could amount to complicity in what ICJ have already ruled as a plausible genocide against the Palestinians," Sarraf noted.


"Israel has shown an absolute and total disregard of international law, and the previous orders of the ICJ, so the next step from this ruling is compliance and respect for the law," the expert said.



Israel must comply


On Friday, the top UN court, besides reaffirming its January 26 and March 28 orders, ordered Israel to "immediately halt its military offensive, and any other action" in Rafah "which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part."


Israel has also been ordered to "maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance" and "take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide."




The court has given Israel one month to submit a report on all measures taken to implement these orders.


"It’s imperative that Israel complies with the order," Sarraf reiterated.


"As we know, South Africa's Foreign Ministry have confirmed that they are taking the ICJ ruling to the UN Security Council to ensure the order is complied with. So it is imperative that any UN Security Council resolution related to compliance on this order is respected and not vetoed to ensure the lives of Palestinians are protected."




Over a million flee Israeli invasion in Rafah

In the past two weeks, more than a million Palestinians have fled Rafah as Israeli occupation military pressed deeper into the city.

People displaced by Israeli attacks lack shelter, food, water and other essentials for survival, the UN says.

The government of Israeli hawkish Prime Minister Benjamin Netanyahu said accusations it is committing a genocide in Gaza are "false, outrageous and morally repugnant."

"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," Netanyahu's government said on Friday, signalling that it's Rafah invasion will not stop.

Israel's Finance Minister Bezalel Smotrich said: "Those who demand that the State of Israel stop the war, demand that it decree itself to cease to exist. We will not agree to that."

The White House, meanwhile, said it has been "clear and consistent" on its position on Rafah. US Senator Lindsey Graham said that ICJ "can go to hell".

"It is long past time to stand up to these so-called international justice organizations associated with the UN," Graham said.

SOURCE: AA AP



UK advocacy group says UN Security Council 'must act' following UN court’s ruling

'Israel has demonstrated its total disregard for the World Court’s orders, whilst Western leaders have reacted with everything from dismissal to disdain,' says expert

Burak Bir |25.05.2024 - 


LONDON

The International Centre of Justice for Palestinians (ICJP) said Friday that international law stands at a "crossroads," as it urged UN Security Council (UNSC) members to stand with the "tools that it created."

It came in a statement from the UK advocacy group after the International Court of Justice (ICJ) ordered Israel to immediately halt its Rafah offensive.

"Given Israel’s blatant disregard for the Court’s authority, emblematic of its increasing willingness to isolate itself on the world’s stage, UNSC member states must recognise what is at stake by their continued inaction in the face of Israel’s non-adherence," it said.

Dania Abul Haj, ICJP’s senior legal officer, said it is not "hyperbole" to say that international law stands today at a "crossroads."

"Israel has demonstrated its total disregard for the World Court’s orders, whilst Western leaders have reacted with everything from dismissal to disdain," noted the Palestinian lawyer.

Asserting that the Global North now has a "simple choice," she said it can stand with the "tools that it created" for the pursuit of global justice and accountability, or it can stand with Israel.

"How the US, UK, and France relate this ruling to their UN Security Council responsibilities will shape the role of not just the ICJ, but of the entire international rules-based order, for decades to come," she added.

On Friday, the top UN court, besides reaffirming its Jan. 26 and March 28 orders, told Israel to “immediately halt its military offensive, and any other action” in Rafah “which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

Israel has also been ordered to “maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance” and “take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.”




Saudi praises ICJ order for Israel to halt Rafah assault

Saudi Arabia on Friday hailed the top United Nations court’s ruling ordering Israel to halt its military offensive in southern Gaza’s Rafah, but called for it to be extended to the rest of the Palestinian territory.

The Gulf kingdom welcomed the International Court of Justice’s decision as “a positive step towards the moral and legal right of the Palestinian people”, the Saudi foreign ministry said in a statement.

“However, the Kingdom stresses the importance of such international resolutions to include all Palestinian areas,” it added.

Riyadh also reiterated “its call to the international community to assume its responsibilities to stop all forms of aggression against the Palestinian people”.

The conservative kingdom, home to Islam’s holiest sites, has long positioned itself as a champion of the Palestinian cause and has never recognised Israel.

However, its de facto ruler Crown Prince Mohammed bin Salman said in September that progress was being made on a possible normalisation deal that would also involve beefed up security and other agreements with the United States.

Since war broke out in Gaza on October 7, triggered by Hamas’s unprecedented attack on southern Israel, Saudi officials have said ties with Israel are impossible without “irrevocable” steps towards recognition of a Palestinian state, which Israel has long opposed.

The top UN court on Friday ordered Israel to halt military operations in Rafah “immediately”, in a landmark ruling likely to increase mounting international pressure on Israel more than seven months into the Gaza war.

The Hague-based court, whose orders are legally binding but lack direct enforcement mechanisms, also ordered Israel to keep open the Rafah crossing between Egypt and Gaza, which it closed earlier this month at the start of its assault on the city.

Mediators Egypt and Qatar also welcomed the ICJ ruling on Friday, with Cairo calling on Israel to “comply with its legal commitments” and “implement all the temporary measures issued” by the court.

Doha, which hosts Hamas’s political bureau, meanwhile “expressed hope that the decision would pave the way for an immediate, comprehensive, and permanent ceasefire”.

In response to the court ruling, Israel gave no indication it was preparing to change course in Rafah, insisting that the court had got it wrong.

“Israel has not and will not carry out military operations in the Rafah area that create living conditions that could cause the destruction of the Palestinian civilian population, in whole or in part,” National Security Adviser Tzachi Hanegbi said in a joint statement with the foreign ministry spokesman.

Australia urges Israel to 'abide by' ICJ's ruling on Gaza


'We have been very consistent that Rafa should not be attacked,' says senior Australian minister

25/05/2024 Saturday
AA



A senior Australian minister has urged Israel to "abide by" the International Court of Justice (ICJ) order to halt its military assault on the southern Gaza Strip.

The top UN court on Friday ordered Tel Aviv to immediately cease its military offensive in Rafah and open the crossing between Egypt and Gaza to allow aid into the besieged enclave.

Judges issued the landmark emergency ruling in South Africa's case accusing Israel of genocide.

Climate Change and Energy Minister Chris Bowen said Australia's position on Rafah is “crystal clear,” describing the situation as a “humanitarian disaster,” with the potential to worsen, local broadcaster SBS News reported on Saturday.

The ICJ also ordered Tel Aviv to submit a report on the measures taken on the latest order within a month.

“We have been very consistent that Rafa should not be attacked,” Brown said in Sydney.

“We are very consistent that the binding rulings to 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 binding rulings should be complied with and we believe Rafah should not be invaded by Israel.”

The International Court of Justice, which is based in The Hague, Netherlands, has no power to enforce its orders.

Israel continued its brutal offensive on Gaza despite a UN Security Council resolution demanding an immediate cease-fire.

More than 35,800 Palestinians have been killed in Gaza, the vast majority being women and children, and nearly 80,300 others injured since October following an attack by Hamas.

More than seven months into the Israeli war, vast swathes of Gaza lay in ruins amid a crippling blockade of food, clean water and medicine.

Pakistan, Maldives, Malaysia welcome new ICJ ruling against Israel

Implementing ruling in Gaza ‘will pave the way for peace in the world,’ says Pakistan's Prime Minister Shehbaz Sharif

Riyaz ul Khaliq and Serdar Dincel
 |25.05.2024 - 


ISTANBUL

Pakistan, Maldives and Malaysia welcomed a new ruling Friday by the International Court of Justice (ICJ) against Israel regarding the Gaza Strip.

“UN Security Council and the international community should make efforts to implement the ICJ order to stop Israeli operations in Gaza,” Pakistan Prime Minister Shehbaz Sharif said in a statement.

Implementing the order to stop the Israeli military operations “will pave the way for peace in the world,” he said.

The ICJ amended an earlier order and demanded Israel immediately halt its military offensive in Rafah, a city in southern Gaza where Tel Aviv sent forces May 6.

“Israel must immediately hold its military offensive or 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,” said ICJ President Nawaf Salam, as he read the order on additional provisional measures requested by South Africa in the genocide case against Israel.

The ICJ said the modification to its March 28 order was in view of the change in circumstances due to the offensive on Rafah, where displaced Palestinians had taken refuge from the war that started in October. According to UN agencies, more than 800,000 have since fled the city due to the ground invasion.

Maldives President Mohamed Muizzu also welcomed the ruling.
“Israel must adhere to this ruling and immediately cease the unspeakable acts of brutality in Rafah. It must also open the Rafah crossing to allow the safe passage of humanitarian aid,” Muizzu demanded.

“While this is an essential step towards peace, we believe that Palestine’s establishment as an independent and sovereign state based on the pre-1967 borders with East Jerusalem as its capital is the only path to lasting peace,” Muizzu wrote on X.

Malaysia's Foreign Ministry also issued a statement on the ICJ ruling.

"Malaysia strongly urges the international community to intensify pressure on Israel to comply with the additional measures, as failing to do so will only make a mockery of the sanctity of the international law," it wrote on X.

The ICJ ruling said Israel has not "sufficiently addressed and dispelled" concerns raised by its military operation in Rafah.

It also urged Israel to maintain the Rafah border crossing open for unhindered access to basic services and humanitarian assistance into Gaza.

The ICJ ordered Tel Aviv to submit a report on measures taken on the latest order within a month.

*Aamir Latif contributed to the story from Pakistan


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