The United Nations’ top court, the International Court of Justice (ICJ), on May 24 issued new provisional measures ordering Israel to “immediately” halt its military offensive in Rafah, which broke out after Hamasled attacks in October last year, killing 1,200 Israeli people, and taking roughly 250 hostages. Israel’s military response has, to date, killed nearly 36,000 Palestinians, the vast majority of them being children and women, and caused widespread destruction and a looming famine in the besieged and bombarded enclave of Gaza. Previously, the ICJ had issued similar provisional measures in January and March.
In January, while delivering an interim judgement, the ICJ judges had stressed that they did not need to say for now whether genocide had occurred but concluded that some of the acts of Israel in Gaza amount “plausibly” to genocide. Rafah is the last remaining stronghold of Hamas in Gaza where about half of Gaza’s 2.3 million people have taken refuge in recent months. Israel claims that Hamas leaders and many operatives are hiding in Rafah, and also that an unspecified number of the remaining 121 hostages kidnapped are also being held in the city. Israel has been insisting that it has no choice but to carry out an operation in the city to root out the Hamas battalions there, to rescue its hostages, ensure the safety of its citizens, and to prevent the smuggling of weapons and cash into Gaza.
The ICJ’s May 24 ruling also calls on Israel to allow unhindered access to humanitarian assistance via the Rafah crossing. The court noted that the humanitarian situation in Rafah has deteriorated further since it last issued provisional measures in March and acknowledged that they have proved to be insufficient. The ICJ president, Judge Salam, said that the court is not convinced that evacuation efforts and related measures that Israel has affirmed to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah governate, are sufficient to alleviate immense risks to which the Palestinian population is exposed as a result of the military offensive in Rafah.
The court also ordered Israel to allow “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. In addition, the ICJ ordered Israel to submit a report within one month on steps taken to implement these provisional measures. The court ordered Israel to report back to it within one month as to how it has implemented the orders. The court also noted with deep concern that many of the Israeli hostages are still in the captivity of Hamas, and called for their “immediate and unconditional release”. The new provisional measures came in response to a petition filed by South Africa before the ICJ against Israel in December last year, accusing it of orchestrating a state-led genocide against the Palestinian people during its Gaza campaign, violating its obligations under the 1948 convention on genocide to which both are signatories.
South Africa has been insisting on “provisional measures” to prevent more bloodshed in Gaza as it may take years before the ICJ finally adjudicates on the substance of the accusation whether Israel has committed genocide. The provisional measures ordered by the ICJ in January and March have failed to deter Israel from further committing crimes against civilians. Contrarily, Israel’s relentless pounding across the shattered Gaza Strip is continuing unabated. The UN agencies, international human rights NGOs, and governments around the world are continuously complaining about Israel not doing enough to ensure the safety and security of innocent civilians in the Gaza Strip and that they receive adequate basic food supplies and other crucial aid.
In view of this, South Africa turned back to the world court once again in May, asking it to impose new provisional emergency measures to stop Israel’s invasion of Rafah as it had not complied with its previous decision. Interestingly, the current ICJ ruling is being interpreted by different parties differently. While Hamas, the Palestinian Authority, and South Africa are reading the decision as a blanket order to halt the offensive, Israel, the USA and others are of the view that it did not order Israel to “cease its military operations in the Gaza Strip.” There is even a difference of opinion on this question among the ICJ’s judges who delivered the majority ruling let alone the dissenting judges. Four of the fifteen judges, two who voted in favour of the ruling and two dissenting, have argued that the key operative clause does not require that Israel immediately halt all military operations in Rafah.
They have concluded that the ruling does not concern other actions of Israel which do not put the Palestinian population at risk of annihilation, either in full or in part. The only judge who expressed a contrary position is the South African ad-hoc judge, Dire Tladi, who wrote that the ruling completely prohibits any offensive Israeli action in the Rafah area. He said that 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 humanitarian assistance and cause harm to the Palestinian people. He, however, emphasises that the prohibition is only limited to “offensive” actions, and Israel’s defensive actions, which come in response to specific Hamas attacks, are not prohibited.
Though the ICJ’s decisions are legally binding, the court lacks real enforcement power. If Israel does not comply, South Africa can approach the Security Council for its enforcement and the ICJ can also refer the matter to it, which could then decide whether to take punitive measures against Israel. But there, the US, Israel’s main supporter, has veto power and can shield Israel from punishment, as it has done many times during the on-going war. The US has hardly shown any interest in holding Israel accountable for its actions in Gaza or in enforcing international law. After the ICJ’s ruling, now the attention of the world will understandably be to see whether Israel complies with it like before. The statements of the Israeli officials cast serious doubt on that possibility.
Israel has repeatedly said that it would not comply with any orders from the ICJ as it is fighting an existential defensive war. Given the circumstances, it would be sheer delusion to believe that something tangible is going to happen to end Israel’s killing rage. Minutes after the ruling was delivered, Israeli warplanes carried out air strikes on a refugee camp in Rafah, killing at least 45 people. Israel seems to be completely unmoved by the horrific loss of life in the Gaza Strip. Israel understands very well that the ICJ’s enforcement mechanism is very weak. The court solely relies on the Security Council for enforcing its judgments, which is unlikely to take any perceptible action against it as the US would most likely block any such attempt.
The violations of the court rulings by Israel cast serious doubt on the effectiveness of the court. The failure to enforce the ICJ’s ruling would be a severe blow to the rules-based international order which is already in tatters. However, the court ruling may undermine Israel’s international standing, which is already facing isolation and criticism in response to its on-going months-long military offensive in Gaza
(The writer teaches international law at Aligarh Muslim University and heads its Strategic and Security Studies Programme)