According to the unanimous reports and statements, the matter is clear: the International Court of Justice (ICJ) in The Hague has issued a legally binding order to Israel to immediately cease its military offensive against Hamas. At any rate, this is how the ICJ's order is being reported across the board. However, as with the ICJ's first order for immediate measures in the case brought by South Africa against Israel for alleged violations of the so-called Genocide Convention at the end of January, the court actually decided something different from what everyone is claiming.
There is indeed talk of a halt, but, as some of the judges emphasized in their declarations or dissenting opinions attached to the order, it is a conditional demand.
According to
Aharon Barak, one of the two judges who voted against the order, it demands that the military operations in Rafah be halted
“only to the extent necessary to fulfill Israel's obligations under the Genocide Convention”.
Conversely, this means that Israel can continue its operations in Rafah
“as long as it fulfills its obligations under the Genocide Convention”.
While the wording chosen in the order is ambiguous, to read from it a blanket call for a halt to the offensive in Rafah (as is virtually universally done in the media and politics) is a misreading that limits Israel's ability to pursue its legitimate military objectives while leaving its enemies, including Hamas, free to attack without Israel being able to respond.
The bottom line is that the ICJ has called on Israel to comply with its obligations under the Genocide Convention and not to undertake any military operations that would violate these obligations. Of course, the Jewish state must and does do this without anyone having to point this out to it. The fact that the ICJ believed it had to emphasize this self-evident point is probably due to the enormous international pressure the judges are under, but is somewhat superfluous from a legal point of view.
Four times in five months, South Africa has demanded a complete end to Israel's military action in Gaza and to withdraw the Israeli army immediately, completely and unconditionally from the entire Gaza Strip'on the grounds that Israel were committing genocide. And for the fourth time, South Africa has been rebuffed for a reason that is as simple as it is important: South Africa could not plausibly substantiate its claim that Israel's military operation was motivated by genocidal intentions. But that would be the only reason for the court to deal with Israel's actions at all.
Because whatever else Israel does or does not do in its operations against Hamas is simply none of the ICJ's business. By continuing to issue orders despite the fact that South Africa has been unable to provide any evidence of Israeli genocidal intent, the court is embarking on a dangerous path: it is weakening the Genocide Convention by using (or abusing) it to arbitrate an armed conflict.
The court relies primarily on statements made by United Nations representatives on social media and on press releases from relevant organizations. But it relies on these statements and press releases without even examining what kind of evidence they are based on. This behavior of the Court is in stark contrast to its previous jurisprudence, in which it has held that United Nations reports are reliable evidence only if they have probative value and are corroborated by other credible sources, if any. In the present case, the statements and press releases have simply not been corroborated.
The ICJ thus relies substantially on unconfirmed and/or unverified United Nations assertions to arrive at its assessments, in striking contrast to its usual procedures. One should add: With his careless and irresponsible handling of claims from the ranks of the United Nations, which is notoriously one-sided and biased when it comes to Israel, he unfortunately hardly differs from the majority of the media, which constantly bases its reporting on press releases from the United Nations and other, clearly partisan actors, as if they were serious and reliable sources.
Judge
Sebutinde's dissenting opinion on the ICJ's order is highly readable for several reasons. On the one hand, it explains the context of Israel's military action, which South Africa always consistently ignores in its denunciations of the Jewish state: Hamas' massacre on Oct 7, 2023, the hostages still being abducted by Hamas, the ongoing rocket fire into Israel from the Gaza Strip, and the multi-front war Israel has been engaged in since last year, stretching from Lebanon in the north to Yemen in the south:
"Israel has the right to respond to these existential threats, which are interlinked and coordinated. In doing so, Israel is expected to comply with its international obligations, including international humanitarian law. However, neither international law in general nor the Genocide Convention in particular deprive Israel of the right to take necessary and proportionate measures to defend its citizens and territory against such armed attacks on multiple fronts."
On the other hand, Judge Sebutinde took the trouble to respond in detail to accusations against Israel over the humanitarian situation in Gaza, emphasizing that
“the responsibility for the suffering of the Palestinians in Gaza does not lie solely with Israel, nor is it correct to say that Israel has done nothing to alleviate that suffering”.
By opening additional land routes and constructing a floating pier, the volume of aid deliveries has increased continuously in recent months. In addition, Israel has also made efforts to improve medical care, including the construction of eight field hospitals and the evacuation of thousands of Palestinians for medical treatment outside the Gaza Strip.
The judge summarized,
"War inevitably and tragically affects the lives of civilians. However, this does not make Israel's war against Hamas illegitimate or unlawful from the outset, nor does it transform it into an act of genocide."
Finally, she pointed out a fact that is almost always ignored when Israel is blamed for the poor humanitarian situation in the Gaza Strip or the Jewish state is even accused, as the chief prosecutor of the International Criminal Court did last week, of deliberately starving the people in the Gaza Strip: Not only does Hamas play a not insignificant role in the situation, but also Egypt, which controls its side of the Rafah border crossing - and has not allowed aid shipments to enter the Gaza Strip since the checkpoint was brought under control by Israel as part of its advance into Rafah.
Demanding that Israel secure the movement of goods through the Rafah crossing, as ICJ order does, without also considering Egypt's responsibility, would result in demands that are simply unfeasible.
Judge Barak has spoken a simple truth that South Africa and so many others who pillory Israel and exult in judicial prosecution of the Jewish state consistently ignore:
"The key to ending this war is not to ask the Court to intervene in this conflict by making unfounded accusations of genocide against Israel. The key to ending this war lies in the hands of Hamas. Hamas started the war and can end it by releasing the hostages and fully respecting the security of the State of Israel and its citizens."
S.: mena-watch