As World Court case progresses, Israel could face more forceful order to end war
South Africa seems poised to continue its unprecedented legal blitz at the International Court of Justice; a request for the UN Security Council to intervene is also in the cards
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The order by the International Court of Justice on Friday regarding Israel’s military operation in the southern Gazan city of Rafah represented a new phase in the court’s intervention in the Israel-Hamas war, as it constituted the first time it issued instructions regarding Israel’s actual conduct of the campaign.
The order itself was not clear-cut as, while it instructed Israel to “Immediately halt its military offensive, and any other action in the Rafah Governorate,” it appeared to condition that order on whether or not that offensive and those actions would “inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”
As ICJ Vice-President Julia Sebutinde interpreted the order in her dissent, “the objective of the Court is to order Israel to suspend its military offensive in Rafah only in so far as such suspension is necessary to prevent the bringing about of conditions of life that could bring about the destruction of the Palestinians in Gaza.”
Three other judges on the court — Judge Georg Nolte of Germany, Judge Bogdan-Lucian Aurescu of Romania and ad hoc judge Aharon Barak of Israel — came to the same conclusion as Sebutinde.
The Friday ruling came following South Africa’s fourth application to the ICJ to have Israel halt its war against Hamas, and was the third set of orders issued by the court in under five months, an unprecedented level of intervention in an ongoing armed conflict.
They key question is what will happen next?
Legal war
If the recent past is anything to go by, then it would seem likely that South Africa will not wait long before filing another application to the court asking for further provisional measures against Israel.
Pretoria would claim that Israel has violated the court’s Friday order and would point to the declaration made by South African Judge Dire Tladi in the ruling that the order requires a total and immediate halt to the Rafah operation.
Given that the court’s language regarding the humanitarian situation in Gaza has become more strident as the case has progressed, and the fact that its orders have become more interventionist, it is possible that more forceful and unambiguous language could be used in response to such an application if the court believes that its concerns have not been addressed, said Dr. Tal Mimran, a lecturer in international law at the Zefat Academic College in Safed and the director of a digital human rights program at the Tachlit think tank.
According to Prof. Eliav Lieblich, an expert in international law at Tel Aviv University’s Faculty of Law, such a ruling would be dependent on what happens on the ground in the coming days and weeks. Lieblich pointed out that incidents such as an airstrike in Rafah that led to a major loss of civilian life on Sunday “can have consequences” in this kind of legal situation.
Lieblich also said, however, that he did not see the ICJ order as giving Israel carte blanche to continue its Rafah operation in its current format, even in accordance with the interpretation that the order does not require a total halt to the operation.
“The court found that there is a possibility that the conditions created due to the fighting in Rafah (in particular, the massive evacuation to areas where there are no adequate living conditions) endanger the rights of the Palestinians according to the Genocide Convention,” said Lieblich.
In all four rulings the ICJ has issued against Israel since January 26, it has made clear that the primary exposure for Israel to claims of genocide under the Genocide Convention is the prohibition on “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 is telling Israel one of two things: Either change your modus operandi in Rafah immediately — that is, stop the massive evacuation and move to targeted actions — or dramatically change the humanitarian situation in Al-Mawasi and the region. Fighting under the current conditions cannot continue,” said Lieblich, referencing the IDF-designated safe zone of al-Mawasi in southwest Gaza where evacuees have been told they can find safety.
Another option open to South Africa is to simply approach the United Nations Security Council, claim that Israel is in violation of the court orders and request action from the body, since the ICJ is the judicial arm of the UN, and the UN charter expressly allows such action.
In such a situation, the Security Council could consider the imposition of different measures against Israel, such as trade sanctions, arms embargoes and other punitive actions.
A motion would need to overcome a US veto, and it seems politically unlikely that the Biden administration would countenance such measures, under the current circumstances and in light of its criticism of the court over South Africa’s genocide case against Israel.
Mimran pointed out that the ICJ itself could initiate further proceedings or issue new rulings against Israel even without further South African requests.
In its Friday ruling, the court ordered Israel to file a report to the court within one month detailing how the orders have been implemented, and this could be a key juncture if the court believes that the humanitarian situation is still deteriorating.
Equal before the law?
Mimran was highly critical of the court’s various rulings against Israel on a substantive level and in relation to the treatment of other states and their conduct in recent conflicts.
He pointed out that Israel told the court it has spent $52 million on opening three crossings into Gaza to supply humanitarian aid to the Palestinian population and facilitated the entry of thousands of trucks of aid into the territory, while Hamas has attacked and killed IDF soldiers stationed close to or at the Kerem Shalom crossing.
Mimran also noted two ongoing conflict-induced famines in Yemen and Ethiopia that have not gained the attention of the ICJ, despite the large number of dead due to starvation and malnutrition.
Saudi Arabia, a signatory to the Genocide Convention under which South Africa has taken Israel to the ICJ, has since 2015 imposed a blockade on Yemen that has been a driving factor in a severe famine in the country — where 131,000 people have died from lack of food, health services and infrastructure, according to the UN. In April this year, UNICEF said that 2.7 million children were suffering from acute malnutrition in Yemen.
Meanwhile, the Ethiopian government has been accused of deliberately withholding food aid from the Tigray region of the country during a two-year civil war that broke out in 2020, with as many as 200,000 people dying during that time of starvation. Ethiopia is also a signatory to the Genocide Convention.
“You see here the hypocrisy of an international legal system that sides with a terror group that vows to kill Israelis, provides fuel and moral support to hate and antisemitism, and exerts legal and diplomatic pressure on Israel, which is prevented from being allowed to defend its citizens and exercise the inherent right of self defense, a sovereign right that forms the basis of statehood and is a pillar of international law,” said Mimran.
He added, however, that Israel could still thread the needle of its campaign against Hamas in its response to any further adverse rulings by the court.
“Israel can still promote its strategic goals while adhering to the limitations placed upon it by the court,” he said, arguing that Israel could adopt different tactics other than the current, large-scale operation in Gaza if need be, and focus on targeted killings and “surgical operations” against Hamas instead.
“This is not a T-junction. Israel can still continue on the course it’s on as long as it shows that it is taking into consideration the limitations being leveled at it.”
