Confused by the ICJ’s decision on Gaza? Blame the judges’ deliberate ambiguity

The key sentence in the court’s ruling is a non-definitive three-clause construct. And the judges themselves don’t agree on what it is they are requiring Israel to do

Yuval Yoaz

Yuval Yoaz is the legal analyst at Zman Israel, The Times of Israel's sister Hebrew website. He practices law, specializing in public, constitutional and media laws. He is a partner in the law office of Karniel & Co Yoaz-Bareket-Jonas.

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

Maybe one day Aharon Barak, the ad-hoc judge representing Israel at the International Court of Justice, will reveal what happened behind the scenes when all 15 judges came to formulate their decision in South Africa’s fourth request for temporary orders against Israel, within the framework of its claim based on the Convention for the Prevention of Genocide.

How, he might explain, did Friday’s ruling end up with the main issue on the agenda – the question of whether the judges would order Israel to stop its military operation in Rafah – not answered explicitly.

In the decision, read out by the President of the International Court of Justice Nawaf Salam, the operative directive on the Rafah issue states that Israel will, “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 question is whether the qualification – “which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part” – applies only to “any other action,” or also to “military offensive.”

In other words, must Israel halt its entire Rafah military operation, or can it continue with that military operation provided it does not constitute a genocidal risk? The formulation and punctuation of this key, complex, three-clause sentence in the ruling seem to allow for both of these — very different — interpretations.

This order was supported by 13 judges against two, but the full decision did not offer clarity on what the order actually means. Whatever their reasons, the judges chose not to formulate a single, short, non-ambiguous sentence stating precisely what Israel was being required to do.

Most of the headlines in Israel and around the world proclaimed that the court had ordered Israel to immediately stop its military operation in Rafah. Ongoing coverage since then has largely maintained this definitive interpretation.

But after the court published the minority opinion documents – by Justice Barak and the court vice president, Julia Sebutinde of Uganda – along with the opinions written by three of the majority judges, it became clear that four of the five judges who addressed this issue consider that Israel is allowed to continue its military action in Rafah, as long as this action does not put the Palestinian population at risk of annihilation, either in full or in part.

“The measure is a qualified one, which preserves Israel’s right to prevent and repel threats and attacks by Hamas, defend itself and its citizens, and free the hostages,” Barak wrote in his minority opinion regarding the decision of the majority judges.

“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,” wrote German judge Georg Nolte, who joined the majority judges. This position was supported by Romanian Judge Bogdan Aurescu and Judge Sebutinde.

The only judge who expressed a contrary position is the South African ad-hoc judge, Dire Tladi, who wrote that the order completely prohibits any offensive Israeli action in the Rafah area. However, the South African judge emphasized that the wording of the order forbids only “offensive” actions, and that Israel’s defensive actions – which come in response to specific Hamas attacks – are not prohibited, according to his own interpretation.

The other 10 justices did not publish interpretations.

Unacceptable situation

This is not the first time in history that judges whose opinions differ try to find a form of compromise that everyone can agree on. Such compromises allow as many judges on the bench to unite around an agreed-upon bottom line.

But in the present case, an unacceptable situation was created, in which the compromise brought about such a vague text that each side is now reading it as it wishes.

Shortly after the announcement of the decision, Prime Minister Benjamin Netanyahu convened a conference call with some of the senior ministers in his government, as well as legal professionals headed by Attorney General Gali Baharav-Miara.

It seems that in this conversation, the complex nature of the ICJ order was internalized, since later in the evening, the head of Israel’s National Security Council and the Foreign Ministry published a joint statement, in which they echoed the court’s own wording: “Israel did not and will not conduct military activity in the Rafah area that creates conditions of life that could bring about the physical destruction of the Palestinian civilians, in whole or in part.”

The precise language adopted by Israel from the court’s decision shows that Israel considers itself free to continue the military operation in Rafah, while at the same time pledges its commitment to ensuring the humanitarian well-being of the Palestinian population.

Harmful ministerial statements

As expected, the court in its ruling saw fit, once again, to change and update the temporary orders it issued in its first decision on January 26, and which had already been amended once, on March 28.  To do this, the court had to reach the conclusion that the factual situation on the ground had changed.

Indeed, what the court saw at previous points as a risk of humanitarian deterioration of the population in the Gaza Strip has come to fruition, according to the majority judges, and the humanitarian situation has now been defined by them as “disastrous.”

This topic has sparked controversy among some judges, who fear the consequences of over-intervention by the court in micromanaging the fighting, as well as repeated intervention in orders already issued by the court. Petitioning states are being incentivized to appeal again and again at the stage of the temporary injunctions and to urge the court to amend its decisions.

Another problem arose in light of the division of roles between international institutions on issues of global peacekeeping and security.

The ICJ is not an enforcement institution but a legal institution, whose role is to settle disputes in accordance with the rules of international law. But South Africa argued that the court must amend its previous orders and make them more specific in order to enable their enforcement. Pretoria claims that this is necessary because, it argues, the UN Security Council or General Assembly are unlikely to enforce the court’s ruling, for political reasons.

The court acceded to this request and among the orders it issued, it determined that the previous orders it issued must be fulfilled; that Israel must open the Rafah crossing for the purpose of providing humanitarian aid to the population in the Gaza Strip; that Israel will allow any UN investigative team to enter the Gaza Strip; and that Israel will submit to the court a report detailing all the steps taken in these contexts, within a month.

Irresponsible statements – such as those made by Finance Minister Bezalel Smotrich, who called for the destruction of the entire Gaza Strip; and National Security Minister Itamar Ben Gvir, who called for the prevention of entry of any humanitarian aid into the Gaza Strip – caused the court to doubt Israel’s ability to fully honor its declared obligations regarding the humanitarian situation of the population, in accordance with international law.

If these destructive ministerial statements continue, Israel’s legal situation will further deteriorate in international courts.

And yet, looking at the big picture, the bottom line is this: For the fourth time this year, South Africa asked the International Court of Justice to stop Israel’s fighting in the Gaza Strip and order it to withdraw its forces. And for the fourth time, the court rejected these requests from South Africa.

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