Four ICJ judges argue court order does not require IDF to stop all Rafah operations
Israel’s Barak says ‘the measure is a qualified one’ and Uganda’s Sebutinde warns directive should not be misunderstood, but South Africa’s Tladi says it explicitly requires a halt
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.
Four of the 15 justices at the International Court of Justice argued that the key operative clause in the court’s ruling, handed down on Friday, does not require that Israel immediately halt all military operations in Rafah, but, rather, that it specifically halt military operations that “could bring about physical destruction in whole or in part” of the Palestinians. Among the four was Israel’s Aharon Barak.
A fifth judge, South Africa’s Dire Tladi, took the opposite view, arguing that the ruling, in “explicit terms, ordered the State of Israel to halt its offensive in Rafah.”
These were the only five of the 15 judges who penned an opinion or declaration to accompany the ruling.
The relevant clause in the ruling stated that Israel must “Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in the Gaza Strip conditions of life that could bring about its physical destruction in whole or in part.”
Former Supreme Court president Barak, who serves as an ad-hoc judge on the ICJ bench in the case brought against Israel by South Africa, wrote in his dissenting opinion that the majority decision “requires Israel to halt its military offensive in the Rafah Governorate only in so far as is necessary to comply with Israel’s obligations under the Genocide Convention.”
Therefore, according to Barak, “Israel is not prevented from carrying out its military operation in the Rafah Governorate as long as it fulfills its obligations under the Genocide Convention.”
“As a result,” Barak continued, “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.”
The German judge, Georg Nolte, and the Romanian judge, Bogdan Aurescu – who are both among the 13 judges who voted in favor of this measure — also supported Barak’s interpretation of the decree.
It is expected that this interpretation — that Israel is not required to halt any and all operations in Rafah – will become the official position of the Justice Ministry and attorney general.
In an official response to the ruling, indeed, Israel said it “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,” echoing language used by the court in the relevant clause.
ICJ Vice President Julia Sebutinde (Uganda), who voted against all decisions on Friday, warned against misunderstanding the court’s directive as requiring a unilateral Israeli ceasefire in Rafah. Sebutinde was also the only judge to vote against all the measures in the court’s initial ruling ordering Israel to take action to prevent acts of genocide as it fights Hamas terrorists in Gaza.
“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,” she wrote Friday.
She cautioned: “… this directive may be misunderstood as mandating a unilateral ceasefire in Rafah and amounts to micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives, while leaving its enemies, including Hamas, free to attack without Israel being able to respond.”
According to this interpretation, an Israeli military operation which would not lead to the mass destruction of Palestinian civilian life would be acceptable to the court.
South African Judge Tladi held the opposite opinion: “Today, the Court has, in explicit terms, ordered the State of Israel to halt its offensive in Rafah. The Court has previously, albeit in implicit and indirect ways, ordered the State of Israel not to conduct military operations elsewhere in Gaza because such operations prevent the delivery of human assistance and cause harm to the Palestinian people. The Court has also reiterated its urgent call for Hamas to release the hostages.”
Added Tladi: “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.”
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. 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 court also ordered Israel to allow “the unimpeded access to the Gaza Strip” for commissions of inquiry, fact-finding missions, or other investigative bodies mandated by the UN to investigate allegations of genocide.
This order could prompt UN agencies to send delegations to start investigations on the genocide allegations being made by South Africa and other nations against Israel in the court.
The court ordered Israel to report back to it within one month as to how it has implemented the orders.
Should the court deem Israel to have violated the orders, it would be able to refer such violations to the UN Security Council, which could then decide whether or not to take punitive measures against Israel as a result.
Times of Israel staff contributed to this report.
