Explainer: ICJ ruling on Rafah operations creates legal uncertainty

The recent ruling by the International Court of Justice (ICJ) concerning Israeli military actions in Rafah, Gaza, has generated significant confusion and controversy due to its ambiguous language.

The ICJ on Friday issued a directive in response to South Africa’s fourth request for temporary orders against Israel, based on claims under the Convention for the Prevention of Genocide. The key sentence 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.”

The phrase “inflict... conditions of life that could bring about its physical destruction in whole or in part” is taken from the 1948 Genocide Convention, which defines genocide to include acts that deliberately create such conditions for a population.

The ambiguity in the ICJ ruling hinges on whether the clause “which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part” is restrictive or nonrestrictive.If interpreted as a restrictive clause, it means the court believed a military offensive or other action could create conditions for genocide, and if it did, that would constitute a prohibited attack.

If interpreted as a nonrestrictive clause, it provides additional information that isn't essential for understanding the ruling. In that case, the ICJ would have determined that Israel’s offensive must stop, not if it led to genocidal conditions, but because it led to such conditions.

In simpler terms, the question is whether Israel must halt its entire military operation in Rafah or if it can continue as long as it does not pose a genocidal risk.Divergent Judicial Interpretations

The ruling was supported by 13 of the 15 judges on the panel in the genocide case, but the lack of clarity in the language has led to varied interpretations:

Majority Opinion: Four of the five judges who provided opinions, including German Judge Georg Nolte, Romanian Judge Bogdan Aurescu, and Ugandan Vice President of the Court Julia Sebutinde, opined that Israel can continue its military actions in Rafah as long as they do not risk genocidal outcomes. Justice Aharon Barak of Israel, in his minority opinion, echoed this view, emphasizing Israel's right to defend itself and its citizens, and to free hostages.

Minority Opinion: South African ad hoc Judge Dire Tladi interpreted the ruling as a complete prohibition of any offensive military actions in Rafah, though he allowed for defensive actions in response to specific Hamas attacks.Unstated Positions: The other 10 judges did not publish their interpretations, leaving their positions unclear and contributing to the overall ambiguity.

Media and Political Reactions

The ruling has been interpreted differently by various media outlets and political entities. Most international headlines proclaimed that the ICJ ordered Israel to stop its military operations in Rafah.

For instance, the BBC ran a headline that didn’t hint of the multiple interpretations implicit in the court’s ambiguous decision: “ICJ Gaza ruling: Israel was ordered to halt its Rafah offensive and open the Gaza-Egypt crossing for aid,” the British broadcaster proclaimed. Likewise, The New York Times, CNN, and Fox News all reported definitively that Israel was ordered to halt all operations.

Al Jazeera ran a headline that was technically accurate: “Israel continues to bomb Gaza, including Rafah, despite ICJ ruling,” implying but not quite saying that the ICJ ruling prohibited Israel’s operation. But the first sentence of the article removed any ambiguity in the Arab media giant’s position: “Israel has continued its relentless attacks on Rafah despite the International Court of Justice (ICJ) ordering it to put an end to the military operation there,” the Qatari-owned network reported.

In contrast, The Wall Street Journal, the Israeli outlets Haaretz, The Jerusalem Post, and The Media Line provided more nuanced interpretations, suggesting that the halt applies only to actions risking genocidal consequences.

EU foreign policy chief Josep Borrell accused Israel of continuing a “military action that has been asked to stop,” affirming an interpretation of the ICJ’s ruling as a total prohibition on military action in Rafah.

While the US did not release a statement weighing in on the various interpretations, national security adviser Jake Sullivan has said Israel’s military operations seemed “more targeted and limited,” suggesting the view that the court had not ordered a halt to all Israeli operations.

Israel’s Response and Legal Implications

In response to the ruling, Israeli officials, including Prime Minister Benjamin Netanyahu, the head of Israel’s National Security Council, and the Foreign Ministry, echoed the ICJ’s language, stating that Israel “did not and will not conduct military activity in the Rafah area that creates conditions of life that could bring about the physical destruction of the Palestinian civilians, in whole or in part.”

The precise adoption of the court’s wording indicates that Israel considers itself permitted to continue its military operation in Rafah while ensuring it does not create genocidal conditions.

The Israeli government’s stance has sparked debate and concern over its compliance with international law. Ministerial statements by figures like Finance Minister Bezalel Smotrich and National Security Minister Itamar Ben Gvir, which suggested aggressive actions in Gaza, have further complicated Israel’s legal standing.

Broader Implications

The ICJ’s ruling demonstrates the challenges of judicial compromise in international law. The vague language resulted from an attempt to unite a diverse group of judges around a single decision. This ambiguity, however, has led to differing interpretations and criticisms of the court’s ability to issue clear and enforceable directives.

The ruling also underscores the tension between legal and political institutions in global peacekeeping. South Africa’s argument for the ICJ to issue more specific and enforceable orders reflects a broader concern about the enforceability of international legal decisions, especially when political bodies like the UN Security Council may not act.