Israel defiant despite ICJ order

Despite Friday’s ruling by the International Court of Justice (ICJ) ordering Israel to immediately halt its military offensive in the southern Gaza city of Rafah, following a fresh application by SA, it appears to have dug in it heels. Legalbrief reports that Israel has given no indication it was preparing to change course in Rafah, insisting that the court had got it wrong. ‘Israel has not and will not carry out military operations in the Rafah area that create living conditions that could cause the destruction of the Palestinian civilian population, in whole or in part,’ said national security adviser Tzachi Hanegbi. A TimesLIVE analysis notes that the wording of the order and the accompanying declarations and dissents of some of the court’s judges suggested another possible interpretation: that it is only those military actions that are genocidal that must be halted. Israel has already seized this gap of ambiguity. SA had gone back to the world court for new interim orders – called 'provisional measures' – in its ongoing genocide case against Israel. The court said it agreed new provisional measures were warranted. The Sunday Tribune reports that Israeli airstrikes and artillery continued to pound Rafah this weekend, but an Israeli official said the government intended to restart stalled negotiations this week.

UN Secretary-General Antonio Guterres on Friday underscored that ICJ rulings are ‘binding’ after the top UN court ordered Israel to halt military operations in Rafah. Guterres stressed that ‘decisions of the court are binding and trusts that the parties will duly comply with the Order from the Court.’ Meanwhile, SA’s ICJ Judge Dire Tladi said there is nothing stopping Israel from defending itself against Hamas. The court told Israel to halt its ‘offensive’ in Rafah, said Tladi in a declaration appended to Friday's ruling, which ‘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.’ According to the News24 report, Tladi added: ‘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 & Punishment of Genocide has been devastating.’ The ANC said the ‘landmark’ ICJ ruling now requires diplomatic pressure on Israel. ‘We urge all nations to exert diplomatic pressure on Israel to comply with the ICJ's ruling,’ the party said in a statement. ‘Where silence is complicity, we must all speak out against injustice.’ It also called on Hamas to release hostages, Israel to release ‘all political prisoners’, and for an immediate ceasefire. In the meanwhile, it said, the order on Rafah is clear. ‘The ICJ's ruling leaves no room for ambiguity. Israel must cease all military activities in Rafah without delay. Innocent lives are at stake and the destruction wrought upon the Palestinian people cannot continue unchecked.’ President Cyril Ramaphosa also welcomed the order but said he remained concerned the UN Security Council had not succeeded in reducing human suffering in Gaza.

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The ICJ referred to the humanitarian situation in Rafah as ‘disastrous’, notes a Daily Maverick report. ‘The court considered that, in conformity with the obligations under the Genocide Convention, Israel must immediately halt its military offensive and any other action in the Rafah governate which may inflict on the Palestinian group in Gaza conditions of life which could bring about its physical destruction in whole or in part,’ said the body’s President Judge Nawaf Salam. While the ICJ did not order a full cessation of hostilities in the Gaza Strip, it agreed with SA that the situation in the enclave had deteriorated since its orders of 26 January and 28 March 2024, and that the provisional measures ordered by the court in March did not fully address the situation in the Gaza Strip now. ‘The court notes that the catastrophic humanitarian situation in the Gaza Strip which, as stated in its order of 26 January 2024, was at serious risk of deteriorating, has deteriorated, and has done so even further since the court adopted its order of 28 March 2024. In this regard, the court observes that the concerns that it expressed in its decision communicated to the Parties on 16 February 2024 with respect to the developments in Rafah have materialised, and that the humanitarian situation is now to be characterised as disastrous,’ said Salam. The court further ordered Israel to open and maintain the Rafah border crossing for the ‘unhindered provision at scale of urgently needed basic services and humanitarian assistance’. Additionally, it ordered Israel to ‘take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide’.

The UN had noted that some 1.5m Palestinians are sheltering in Rafah – making it one of the most densely populated areas on earth – when Israel’s military began its ground incursion in the city on 7 May. The UN estimates that 800 000 Palestinians have been displaced from Rafah, as at 18 May, notes the DM report. Before Israel concluded its argument before the court on 18 May, German Judge Georg Nolte had asked Israel to provide information on the humanitarian conditions in its designated evacuation zones, in particular, Al Mawasi, ‘and how it would ensure safe passage to these zones’ and the provision of humanitarian aid and assistance to all Palestinian evacuees. Israel provided an eight-page response to Nolte’s question, which the court found on Friday to be insufficient. SA’s lawyers, by contrast, filed a 61-page response to Israel’s argument. ‘On the basis of the information before it, the court is not convinced that the evacuation efforts and related measures that Israel affirms to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah Governorate, are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah,’ the order stated. ‘The court observes that Israel has not provided sufficient information concerning the safety of the population during the evacuation process, or the availability in the Al-Mawasi area of the necessary amount of water, sanitation, food, medicine and shelter for the 800 000 Palestinians that have evacuated thus far. Consequently, the court is of the view that Israel has not sufficiently addressed and dispelled the concerns raised by its military offensive in Rafah,’ it continued.

Friday’s ruling by the ICJ is the court’s third – and by far the most significant – intervention in the conflict, says a report in The Guardian. It comes four days after the chief prosecutor of the International Criminal Court said he was seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, including the Israeli Prime Minister, Benjamin Netanyahu, and his Defence Minister, Yoav Gallant. The ruling will increase pressure on the UK and the US, which criticised the ICC warrants request, to bring their influence to bear on Israel. However, after speaking on the phone with the US secretary of state, Antony Blinken, Israel’s war Cabinet Minister, Benny Gantz – a political rival of Netanyahu – said Israel was ‘obligated to continue fighting to return its hostages and ensure the safety of its citizens, at any time and place – including in Rafah. We will continue to act according to international law in Rafah and wherever we operate, and make an effort to avoid harming the civilian population. Not because of The Hague tribunal, but first of all because of who we are.’

In a statement, Netanyahu’s office rejected SA’s accusation of genocide as ‘false, outrageous and disgusting’, adding: ‘Israel has not and will not carry out a military campaign in the Rafah area that creates living conditions that could lead to the destruction of the Palestinian civilian population, in whole or in part.’ The Guardian report adds Israel’s far-right national Security Minister Itamar Ben-Gvir accused the court of being ‘antisemitic’ and, quoting Israel’s first PM, David Ben-Gurion, said on X: ‘Our future is not dependent on what the gentiles will say but rather what the Jews will do!’ He added that the court’s ruling ‘should have only one answer – the occupation of Rafah, the increase of military pressure and the crushing of Hamas, until the complete victory in the war is achieved’. The Palestinian Authority’s presidential spokesperson, Nabil Abu Rudeineh, said the ICJ’s decision represented a consensus to end the war on Gaza, while Hamas official Basem Naim also welcomed the ruling and urged the UN security council to implement it. But the militant group said did not go far enough and urged an end to Israel’s offensive on all of Gaza.

The ICJ order that Israel must halt its offensive in Rafah ‘could be misunderstood or misconstrued as ordering an indefinite, unilateral ceasefire’, said ICJ Judge Julia Sebutinde in a dissenting opinion to Friday's ruling. A News24 report says Sebutinde, from Uganda, was one of two judges on the Bench of 15 to vote against the order. The other was Israel's Aharon Barak. SA on Friday said the order is a ceasefire in all but name. That is not so, Sebutinde said. ‘In my understanding, the objective of the court is to order Israel to suspend its military offensive in Rafah only in so far as such suspension is necessary to prevent the bringing about of conditions of life that could bring about the destruction of the Palestinians in Gaza. The order could be erroneously misunderstood as mandating a unilateral ceasefire in part of Gaza’, she said.