Israel must tread carefully as International Court limits war on Hamas - analysis

The International Court of Justice (ICJ) ordered Israel to limit its military operation in Rafah, putting the Jewish state in an even more precarious position as its war against Hamas in Gaza continues.

Israel has been facing mounting international criticism about its conduct in the war, which has last lasted for almost eight months. This criticism has also come from its greatest ally, the US, and mounted ahead of the Israeli military operation in the southern Gaza city of Rafah. Israel began its military activity there at the beginning of May, despite many warnings from Washington that the high concentration of civilian population there would make the operation impossible and lead to a humanitarian disaster. The Israeli military has insisted its operation is limited, something that the US has appeared to accept in recent days, putting it at odds with the international court and its latest order.

The wording of the decision was ambiguous, instructing Israel to “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.”

The order was given in response to a request by South Africa to provide provisional measures against Israel as part of its larger case against it, in which South Africa is accusing Israel of committing genocide in the Gaza Strip. South Africa was seeking a demand to stop Israeli operations in Gaza fully, a demand that was not met.

Israel intends to continue operations

Israel, on its part, maintains it has no genocidal intentions.

“This means Israel can continue with its offensive, as long as it takes no action intended to commit genocide,” said Ambassador Alan Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center and former legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs. “Israel needs to operate with caution, to minimize civilian casualties and care for the transfer of population from areas in which there is combat.”

“What we have seen so far in terms of Israel’s military operations in that area has been more targeted and limited, has not involved major military operations into the heart of dense urban areas,” US national security adviser Jake Sullivan said last week during a briefing at the White House. The comments came after Sullivan visited Israel and met with officials who shared details on the military operations in Rafah. The American attitude changed after weeks of heightened tensions between US President Joe Biden and Israeli Prime Minister Benjamin Netanyahu. Biden repeatedly warned Israel about the operation in Rafah while Netanyahu insisted on pushing forward with the operation. The tensions peaked when the US President said he delayed the shipment of thousands of bombs it believed Israel used, which caused massive civilian deaths.

Israel slammed the allegations by the court, vowing to continue abiding by international law.

“The charges of genocide are … false, outrageous and morally repugnant,” read a statement by the head of the Israeli National Security Council and the spokesperson of the Ministry of Foreign Affairs after the ICJ decision was announced. “Israel 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.”

The statement added that Israel will continue to provide humanitarian assistance to enter from the Egyptian side of Rafah “to reduce as much as possible harm caused to the civilian population in Gaza.”

“Israel can continue its operation, but it should do it very carefully while stressing it continues to provide for humanitarian aid and also to show that its legal system investigates any cases where there is suspicion of war crimes,” said Dr. Hilly Moodrick-Even Khen, an expert in international law and chairperson of Ariel University Center for the Research and Study of Genocide. “I don’t think they are not worried about the possibility of escalation and genocide, but I don’t think they see it now.”

“This is a good sign that somehow the court understands the necessity of Israel’s war,” she added.

The UN Office for the Coordination of Humanitarian Affairs in the Palestinian territories said that many of the humanitarian missions in May were delayed. UNRWA, the United Nations Relief and Works Agency for Palestine Refugees, has warned of impending famine. Last week, UNRWA said its distribution center in eastern Rafah was inaccessible due to Israeli military operation there.

Israel feared a harsher directive from the court, but its ambivalent wording and general position as an international body effectively allowed the government to continue.

“The court does not have ‘teeth,’” Baker told The Media Line. “It cannot send forces, but the UN Security Council can. The Palestinians can submit a request to act against Israel there, but the US will likely veto such a move.”

For weeks, Israel enjoyed broad international support for its war against Hamas. Israel launched the massive offensive after Hamas stormed its southern border on October 7. Approximately 1200 Israelis were killed that day, and Hamas took 250 people hostage. Half of them have already been released. Israel’s military response began immediately after, with a massive air, naval and ground attack. Since then, the Hamas-run Gaza Health Ministry has reported over 35,000 deaths. According to various UN agencies, around 1.7 million Palestinians have been displaced as a result of the war. Knowing Israel was not planning to operate in Rafah at the beginning of the war, many of the displaced found refuge there. This created a densely populated area that challenged any Israeli military operation there and made it the focal point of warnings by the international community.

Israel insists Rafah is a critical part of its war on Hamas, essential to it achieving its goals of toppling the terrorist organization and releasing the remaining 125 hostages. Rafah is believed to be the heart of Hamas’ military operations, where some of its senior leadership may be hiding using some of the hostages as human shields. The southernmost city in Gaza it borders with Egypt. Israel says the city is laden with a complex network of underground tunnels crossing into Egypt. These tunnels have been used to smuggle weapons and other materials into the Gaza Strip, enabling Hamas to bolster its military power.

The Israeli military warned Palestinians ahead of entering the outskirts of Rafah. UN agencies have reported in recent days that at least 800,000 Palestinians have moved away from the area.

While the court’s decisions are binding on member states, Israel being one of those members, it has no means to enforce those decisions.

In 2022, the ICJ ruled that Russia must stop its military operations against Ukraine. Russia has not abided by the ruling, and its veto power at the UN Security Council gives it de facto immunity from any possible sanctions or measures against it.

Israel is banking on US veto power to do the same.

Earlier this month, the UN General Assembly adopted a resolution that upgraded Palestine’s rights at the UN.

The Palestinians “will try to use any diplomatic means they have to pressure Israel and show that it does not obey the court,” Moodrick-Even Khen told The Media Line. “This has meaning in the public opinion, which is very important and could also affect some of Israel’s bilateral relations.”

Last week was a week of diplomatic calamity for Israel. In addition to the ICJ order, the International Criminal Court also asked to issue arrest warrants against Netanyahu and Defense Minister Yoav Gallant. As the war continues, support for Israel has dwindled. The images of continuous suffering in Gaza replaced the aftermath of Hamas’ attack, and international contempt for the Jewish state grew.

“Israel should now use any means to convince the international community that it is a law-abiding country that has no intention of committing genocide,” said Moodrick-Even Khen.

Many Israeli politicians and officials accused both courts of anti-Israeli bias.

“There are a lot of interests in play that do not necessarily have to do with Israel’s actions in Gaza,” said Baker, noting the current president of the ICJ, Lebanese Nawaf Salam, and his history of anti-Israeli rhetoric.

On Sunday, the Israeli military continued to operate in Rafah, showing no signs of relenting.