While Israel’s main fight in recent days has been on the ground in Gaza, the country has also been in engaged in several courtroom conflicts at the same time. Most recently, a ruling in the International Court of Justice about Israel’s military action in Rafah has created questions about how Israel will press forward in that region of Gaza.
The ruling, released on Friday, was in response to demands by South Africa that the ICJ order Israel to stop fighting there. But what the ruling actually required Israel to do was left somewhat ambiguous, with law experts, including some of the judges of the ICJ itself, arguing about the extent of the section of the ruling most relevant to the fighting.
The passage in question reads: “The Court considers that, in conformity with its obligations under the Genocide Convention, 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.”
Was this saying that Israel must entirely stop its offensive in Rafah? Was it simply saying that Israel should be careful to avoid inflicting physical destruction on the Gazans? That seemed to remain a question despite the court’s issuance of its order.
To understand more about this case, we spoke with Prof. Yuval Shany, the Hersch Lauterpacht Chair in Public International Law at Hebrew University. Our discussion touched not only on the ICJ ruling but also on the arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant recently demanded by the chief prosecutor at the International Criminal Court.
There’s much to discuss. Let’s start with the recent provisional decision by the International Court of Justice in The Hague. What are the implications of that ruling? Some have been interpreting it more liberally, while others have taken it more literally. What’s your take?
This is the fourth time that the ICJ has ruled on this issue. Ever since the first ruling, it has been trying to walk a fine line between recognizing Israel’s right to self-defense while also ensuring that there are no conditions on the ground that could lead to the deaths of Palestinian civilians. What we are seeing in each subsequent ruling is a swinging of the pendulum toward more limitations on Israel and more protections for the Palestinians, which as the situation is being reported to the court, is growing worse and worse.
What we saw this past Friday was an attempt at finding some sort of balancing formula by not dealing with the entire operation in Gaza and focusing on only one area: Rafah. It didn’t introduce a complete ban; rather, it was a more conditional, nuanced order to halt the operation if it could result in catastrophic harm to the Palestinian population. However, it did warn that Israel is in the so-called area of catastrophic harm, meaning that for Israel to continue without adopting supplementary protective measures would probably be insufficient for the judges’ expectations.
Last night, rockets were launched at Israel from Gaza. Israel responded, and according to reports coming from Gaza, more than 30 civilians died. Does this fly straight in the face of the ICJ’s ruling?
It certainly doesn’t look good for Israel, because the ruling was designed to enhance protections, and here we have an incident that is quite dramatic and resulted in significant loss of life. I’m not sure we can tell at this point in time, when we don’t really know what caused this harm, that Israel technically violated the court’s orders. I also know that Israel used lower-grade smart munitions that were designed to target specific Hamas commanders. Israel would also argue that this wasn’t part of an offensive; it was a targeted action of the kind that its allies were encouraging it to introduce instead of engaging in a more significant military offensive.
Would you say that the decision on Friday was something of a turning point?
I wouldn’t say that, but when we discuss the end of the rope, it does limit the length of the rope that Israel now has. So while I wouldn’t call it a change in direction, it does introduce more stringent conditions for the continuation of the operation.
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