After ICJ ruling, US says Biden’s position on IDF Rafah op is ‘clear and consistent’

Brief statement comes as White House has appeared to soften its opposition to Israel’s advance into Rafah, indicating Jerusalem was taking US concerns into account

US President Joe Biden walks to his vehicle after arriving on Marine One at Delaware Air National Guard Base in New Castle, Del., Friday, May 24, 2024. (AP Photo/Alex Brandon)
US President Joe Biden walks to his vehicle after arriving on Marine One at Delaware Air National Guard Base in New Castle, Del., Friday, May 24, 2024. (AP Photo/Alex Brandon)

In response to Friday’s International Court of Justice ruling on Israel’s operation in the southern Gaza city of Rafah, a White House National Security Council spokesperson told The Times of Israel that “we’ve been clear and consistent on our position on Rafah,” without elaborating.

The significant, but somewhat ambiguous ICJ ruling, called on Israel to halt military operations in Rafah that would risk the destruction of the civilian population sheltering there. According to the interpretation of four judges, the order is a limited one instructing Israel not to violate the Genocide Convention in Rafah, but not to halt its military operations there altogether. The South African judge on the bench, by contrast, argued that it explicitly requires Israel to halt all military operations in Rafah.

The United States administration has repeatedly stated it opposes a major Israeli offensive in Rafah, with US President Joe Biden pausing a shipment of bombs over concerns Israel might use them as part of the operation, while National Security Adviser Jake Sullivan said this week that Israel’s military activities have not reached the level Washington warned against.

US Secretary of State Antony Blinken reiterated Biden’s position on “a major Rafah operation” when he spoke with war cabinet minister Benny Gantz on Friday, the US State Department said

The readout came after the ICJ ruling on Rafah.

There was no immediate readout from Gantz’s office on the call.

US officials, in pressuring Israel, had suggested that a major operation was a red line that would undermine stalled negotiations on a deal to return Israeli hostages taken by Hamas and would lead Biden to further dial back what weaponry he would send Israel.

A Palestinian man and his children sit in a destroyed room of a building heavily damaged, apparently by an Israeli airstrike, in Rafah in the southern Gaza Strip on May 22, 2024. (Eyad Al-Baba/AFP)

But the tone at the White House seemed to take a notable shift this week after Sullivan returned from a visit to Israel, where he said he had been briefed on “refinements” in the Israeli plan to root out Hamas in Rafah.

During Sullivan’s talks with Prime Minister Benjamin Netanyahu and other officials during the trip, the Israeli side addressed many of Biden’s concerns about its plans for Rafah, according to a senior administration official who requested anonymity to discuss the sensitive matter.

The official said the administration stopped short of greenlighting the Israeli plan but Israeli officials’ altered planning suggested they were taking Biden’s concerns seriously.

Israel on Saturday appeared to be continuing operations across Gaza.

Israel carried out airstrikes in the Gaza Strip early Saturday, including in Rafah, Palestinian witnesses said.

Clashes also continued between IDF soldiers and Hamas terrorists.

Troops of the Givati Brigade operate in Rafah in the southern Gaza Strip, in a handout image published May 23, 2024. (Israel Defense Forces)

Palestinian witnesses and AFP teams reported Israeli strikes in Rafah and the central city of Deir al-Balah.

There was no immediate comment from the IDF.

The ICJ on Friday went further than the US, ordering Israel to halt military operations in the southern Gazan city of Rafah that would risk the destruction of the civilian population sheltering there.

“Israel must 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 ruling stated.

The order was approved 13 votes to 2 by the justices on the court, with Vice-President Julia Sebutinde of Uganda and Ad Hoc Judge Aharon Barak of Israel dissenting.

Judges arrive at the International Court of Justice (ICJ) to hear South Africa’s request on a Rafah and wider Gaza war ceasefire, in The Hague, on May 24, 2024. (Nick Gammon/AFP)

According to the interpretation of Sebutinde, Barak and two other judges on the court, the court’s ruling was not a direct and total order to stop the Rafah operation, but rather a limited order instructing Israel not to violate the Genocide Convention in that military campaign. The fifth of five judges who wrote separate opinions or declarations to accompany the ruling, South Africa’s Dire Tladi, took the opposite view, however, arguing that the ruling, in “explicit terms, ordered the State of Israel to halt its offensive in Rafah.”

While some are reading the decision as a blanket order to halt the offensive, the wording appeared to include some conditionality that would allow Israel to continue operations in Rafah so long as it ensured that the conditions for Palestinians sheltering there do not deteriorate so as to risk their mass-destruction. Notably, nearly one million of the 1.4 million Palestinians sheltering in Rafah have already evacuated, amid IDF orders to do so.

In Friday’s decision, the ICJ justices expressed once again that their primary concern regarding Israel’s obligations under the Genocide Convention, under which South Africa has taken Israel to court, is that Israel not create the conditions of life designed to destroy the Palestinian population in Gaza.

In all four rulings the court has issued against Israel starting January 26, it has made clear that the primary exposure for Israel to claims of genocide under the Genocide Convention is the explicit clause in article two. This states that one form of genocide is “Deliberately inflicting on the [national, ethnical, racial or religious] group conditions of life calculated to bring about its physical destruction in whole or in part.”

The court ruling on Friday stated that the concerns it expressed in its February decision, when South Africa first asked that the court order Israel not to invade Rafah, “have materialized, and that the humanitarian situation is now to be characterized as disastrous.”

It said that the developments in Rafah, with the evacuation of hundreds of thousands of Palestinians from the city, were “exceptionally grave,” and that it is “not convinced” that Israel’s evacuation efforts and other measures to protect Gazan civilians “are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah.”

Along with its orders regarding Israel’s military operation in Rafah, the court also ordered Israel to “maintain open” the Rafah Border Crossing between Egypt and Gaza to allow the “unhindered provision at scale” of humanitarian aid to the region.

The Rafah Crossing has been closed since the IDF launched an operation earlier this month to take over the Gaza side of the gateway.

Palestinians line up for a meal in Rafah, Gaza Strip, December 21, 2023. (AP Photo/Fatima Shbair)

Israel blames Egypt for refusing to reopen the crossing since Cairo does not want to reopen it as long as the IDF is effectively managing the other side, and Israel has struggled to recruit another body to run the crossing.

The IDF has asserted that Rafah is Hamas’s last major stronghold in Gaza, and where four of its battalions are located.

Israel believes Hamas leaders and many operatives are hiding in Rafah, and also that an unspecified number of the remaining 121 hostages kidnapped in the Hamas-led October 7 atrocities are being held in the city. Israel says it has no choice but to carry out an operation in the city to root out the Hamas battalions there and prevent the smuggling of weapons and cash into Gaza.

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