Four ICJ judges argue that court order does not require IDF halting all Rafah operations

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 justices at the International Court of Justice argue that the key operative clause in the court’s ruling, handed down today, 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 is Israel’s Aharon Barak.

A fifth judge, South Africa’s Dire Tladi, takes the opposite view, arguing that the ruling, in “explicit terms, ordered the State of Israel to halt its offensive in Rafah.”

These are the only five of the 15 judges who pen an opinion to accompany the ruling.

The relevant clause in the ruling states that 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.”

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, writes, 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 continues, “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 support 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.

ICJ Vice President Julia Sebutinde (Uganda), who voted against all decisions today, warns against misunderstanding the court’s directive as requiring a unilateral Israeli ceasefire in Rafah. “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 writes.

She cautions: “… 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.”

South African judge Tladi, holds 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.”

Adds 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.”

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