The ICJ ruling on Israel’s Rafah offensive and its implications | Explained

The story so far: The International Court of Justice (ICJ) on May 24 ordered Israel to halt its military operations in the southern Gaza city of Rafah in a ruling that can further the country’s international isolation and escalate demands for a ceasefire more than seven months into the war triggered by Hamas’ October 7 attack. This is the third time that the United Nation’s top court has issued preliminary orders to alleviate humanitarian suffering in Gaza.

However, in the absence of direct enforcement mechanisms, the Court’s decisions are often defied despite being legally binding. A day after the ruling, Israeli air strikes ravaged Rafah — an indication that the country remains unwilling to change its course.

Friday’s ruling was delivered in a case instituted by South Africa accusing Israel of genocide and citing “immense risk” to the Palestinian population. Its latest request pointed out that the Hague-based Court’s January 26 provisional measures were not sufficient to address “a brutal military attack on the sole remaining refuge for the people of Gaza.” In another significant intervention in the conflict, the Prosecutor of the International Criminal Court (ICC) on May 20 announced his decision to apply for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Israeli Defence Minister Yoav Gallant, and three Hamas leaders, including Yahya Sinwar, the leader of the outfit, for the alleged commission of war crimes and crimes against humanity.

‘Change in the situation’

Similar to interim injunctions issued by national courts, provisional measures issued by the ICJ seek to freeze combat operations to preserve the integrity of a future final judgment. Before the passage of such an interim order, the Court must be satisfied that it has prima facie jurisdiction, that there is a “plausible” link between the rights asserted by South Africa and the measures it requests and a risk of irreparable harm and urgency.

As per Article 76 of the Rules of Court (1978), the Court has the power to “revoke or modify” any decision concerning provisional measures if it finds that “some change in the situation” has taken place. In a ruling supported by a majority of 13-2 judges, the ICJ said that the humanitarian situation in Rafah is now “disastrous” — meaning the Court’s previously issued provisional measures were insufficient.

It thus acknowledged that the “repeated large-scale displacement of the already extremely vulnerable Palestinian population” constitutes “a change in the situation” within the meaning of the Court’s rules.

The ICJ relied upon a host of UN reports to underscore the “immense risks” associated with Israel’s continuous military strikes in Rafah. For instance, it noted that on May 6, the United Nations Children’s Fund (UNICEF) had indicated that half of the approximately 1.2 million Palestinians sheltering in Rafah were children and that Israel’s hostilities could result in the destruction of “the few remaining basic services and infrastructure.” It was further pointed out that the al-Najjar Hospital, one of the last remaining medical facilities in the Rafah Governorate, was no longer functional, and that the World Food Programme (WFP) had been unable to access its warehouse in the region leading to a disastrous hunger crisis.

Concerns not ‘sufficiently dispelled’

Perusing the evidence on record, UN’s top court observed that Israel had failed to undertake sufficient measures to adequately evacuate and protect from violence thousands of civilians in the Gaza Strip, particularly in Rafah. It also highlighted the inability of Tel Aviv to provide “sufficient information” on the steps taken to supply humanitarian aid in the form of water, sanitation, food and medicine to the 800,000 evacuated Palestinians.

Crucially, the Court found Israel’s assurances unconvincing, writing that it has not “sufficiently addressed and dispelled the concerns raised by its military offensive in Rafah.”

Provisional measures

At the outset, the Court outlined that the prior provisional measures indicated in its orders of January 26, 2024, and March 28, 2024, “must be immediately and effectively implemented.”

It then proceeded to rule that Tel Aviv, in accordance with its obligations under the Genocide Convention, 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.”

Israel was further asked to keep the Rafah crossing with Egypt open for the “unhindered” delivery of humanitarian assistance and allow UN investigators to access the Gaza Strip to collect evidence about the alleged war crimes.

Although no interim order was issued, the judges reiterated that they were deeply concerned about the fate of the hostages abducted during Hamas’ attack on October 7, 2023, and accordingly called for their immediate and unconditional release.

In conclusion, the ICJ directed Israel to submit a report detailing its steps to ensure compliance with its directives within one month of the ruling. South Africa will consequently have a chance to respond to this report. However, despite South Africa’s fervent pleas, the Court has once again refused to issue any interim order calling for a ceasefire.

Implications

Since the ICJ lacks any direct enforcement mechanisms, the only way for the interim order to be implemented is if the UN Security Council shows willingness to act on it. But the United States, Israel’s strongest ally, has repeatedly used its veto powers to shield Tel Aviv from demands for a ceasefire. However, on March 25, it abstained from voting on a similar UN resolution, signalling a change in the Biden administration’s policy towards the war.

The U.S. has long maintained that Israel’s military operations in Rafah are “limited” and that it would not support any major ground offensive without a credible plan to protect civilians. However, given that both the top international courts have raised concerns about Israel’s operations, Washington’s stance on upholding international law appears inconsistent when it comes to defending its allies.

Israeli officials have interpreted Friday’s ruling as a “limited order” that instructs it to abide by the Genocide Convention during its activities in Rafah, but does not require a complete halt to military operations there. “The order in regard to the Rafah operation is not a general order,” an official told Reuters on condition of anonymity, highlighting that the phrasing of the ICJ ruling does not rule out all military action.

However, Tel Aviv’s continued defiance seems to be increasingly turning international public opinion against it. Last week, Norway, Ireland and Spain announced that they would unilaterally recognise a Palestine state.

Adil Ahmad Haque, law professor and Judge Jon O. Newman scholar at Rutgers Law School agreed that the Court’s order is “somewhat ambiguous”. He wrote that a plausible interpretation of the ruling could mean that Israel must immediately halt its military operations in Rafah to the extent that it may inflict on the Palestinian group in Gaza “conditions of life that could bring about its physical destruction in whole or in part”. However, Mr. Haque maintained that the present offensive, as currently planned and executed, is prohibited under any reading of the order.