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I had two thoughts on Friday as I listened to the chief judge of the International Court of Justice tell Israel to halt its military offensive in Rafah, the city in southern Gaza to which more than a million displaced people fled earlier in the conflict.<\/p>\n
The first was that the court\u2019s ruling<\/a> was unusually forceful: the judge said Israel \u201cmust halt\u201d its military offensive in Rafah \u201cimmediately.\u201d Many observers had not expected the court to issue such a direct order because it has no jurisdiction to impose similar requirements on Hamas, Israel\u2019s opponent in the war.<\/p>\n My second thought was that the court\u2019s use of punctuation was definitely going to provoke debate. Here\u2019s the key part of the ruling:<\/p>\n The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate:<\/p>\n 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.<\/p>\n<\/blockquote>\n Sure enough, for several days some legal scholars have been arguing about whether the clause that begins \u201cwhich may inflict\u201d might put conditions on the order to \u201cimmediately halt.\u201d<\/p>\n<\/div>\n<\/div>\n Has Israel been told to halt its offensive, or to do so only if that offensive is about to partly or completely destroy Palestinians as a group?<\/p>\n<\/div>\n<\/div>\n In some ways, the debate is a distraction. There is a substantial consensus among legal experts that Israel cannot continue its current offensive in Rafah without violating the court\u2019s order. Five leading legal scholars I contacted said the order was clear on that point, and more said the same<\/a> in interviews<\/a> and social media<\/a> posts<\/a> online. (\u201cThe current offensive as currently planned and executed is prohibited under any reading,\u201d wrote<\/a> Adil Haque, an international law expert at Rutgers University. \u201cThis sentence means Israel must halt its current military offensive in Rafah,\u201d wrote<\/a> Janina Dill, the co-director of the Oxford Institute for Ethics, Law, and Armed Conflict.)<\/p>\n An earlier paragraph of the order offered vital context, these experts pointed out, and clearly explained the urgency of the court\u2019s intervention:<\/p>\n \u201cOn 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.\u201d<\/p>\n<\/blockquote>\n That, the court went on to explain, was the reason for the new order. Notice the use of the word \u201ccurrent\u201d here: \u201cThe Court finds that the current situation arising from Israel\u2019s military offensive in Rafah entails a further risk\u201d to the rights of Palestinians in Gaza, the order says.<\/p>\n There is<\/em> a wider range of disagreement about what Israel could legally do instead. But that is not immediately relevant, because all indications are that Israel is continuing the current offensive despite the court\u2019s instructions to stop.<\/p>\n To recap: Friday\u2019s order was an interim decision in a case that South Africa filed in December, alleging that Israel\u2019s military actions in Gaza violate the 1948 Genocide Convention. The court can only rule on Israel\u2019s behavior, not that of Hamas, because Hamas is neither a state nor a party to the genocide convention. Israel has categorically denied<\/a> that it is committing genocide.<\/p>\n<\/div>\n<\/div>\n A decision on the merits of the case is probably years away. In the meantime, the court has issued a series of \u201cprovisional measures\u201d \u2014 essentially temporary injunctions \u2014 ordering Israel to proactively ensure genocide doesn\u2019t occur while the broader case is pending.<\/p>\n The first, issued in January<\/a>, ordered Israel to refrain from genocidal acts, to prevent and punish incitement and to enable the provision of humanitarian assistance. A subsequent order in March added a requirement that Israel take \u201call necessary and effective measures<\/a>\u201d to ensure the delivery of humanitarian aid \u201cat scale.\u201d<\/p>\n<\/div>\n<\/div>\n In early May, after Israel began its military operation in Rafah, South Africa urgently requested new provisional measures, arguing that the Rafah incursion would cause \u201cirreparable harm to the rights of the Palestinian people in Gaza.\u201d On Friday, by a majority of 13 to 2, the court\u2019s judges found that the risks to civilians warned of in previous orders had now materialized, and that the situation had become \u201cdisastrous.\u201d<\/p>\n \u201cIsrael has not provided sufficient information concerning the safety of the population during the evacuation process,\u201d the court found, \u201cor 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.\u201d (Al-Mawasi is a coastal area in Gaza to which many of the civilians in Rafah had been displaced.)<\/p>\n<\/div>\n<\/div>\n That created a risk of \u201cirreparable prejudice to the plausible rights claimed by South Africa,\u201d the court found, and so it ordered Israel to halt its military offensive in Rafah. It also ordered Israel to keep the Rafah crossing on the border with Egypt open \u201cat scale\u201d for the provision of humanitarian aid, and to allow U.N.-mandated investigators access to Gaza.<\/p>\n Some experts have noted that when the I.C.J. ordered Russia to halt its war in Ukraine in March 2022, the wording was more direct<\/a>: \u201cThe Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine,\u201d that provisional measures order stated. (In that case, the ruling was also 13 to 2.)<\/p>\n So why would the court be even slightly ambiguous in this case? It may have been intentional, said Yuval Shany, an international law professor at Hebrew University in Jerusalem. Perhaps the vague language helped convince more judges to sign the order, he said, even if they did not all agree on a single interpretation of its meaning. There is actually a term for that phenomenon in international law, Shany noted. The term \u201cconstructive ambiguity\u201d refers to when \u201cyou\u2019re not able to actually reach a consensus formulation, so you use language that everyone can live with,\u201d he said.<\/p>\n It might have been easier to convince a majority to agree to the unambiguous order in the Russia case, which followed the invasion of Ukraine, because invading another state\u2019s territory is barred by international law. By contrast, Israel\u2019s military operations came in response to Hamas\u2019s attack on Israeli soil last October. Using force in self-defense is allowed under international law, though it is still subject to other laws of war and the prohibitions on genocide and other crimes.<\/p>\n Three of the judges who joined the majority in last week\u2019s decision wrote separately to explain their interpretation of the order. Each indicated that there would be some circumstances in which certain types of military operations could continue: if the operations did not \u201cinflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part\u201d (Judge Bogdan Aurescu<\/a>); if they did not prevent the provision of urgently needed basic services and humanitarian assistance (Judge Georg Nolte<\/a>); or if they were limited to \u201cdefensive operations to repel specific attacks,\u201d carried out in accordance with international law (Judge Dire Tladi<\/a>).<\/p>\n<\/div>\n<\/div>\n But none appeared to say that the operation could continue in its current form \u2014 and Judge Tladi explicitly ruled that out.<\/p>\n \u201cWhat would not be consistent is the continuation of the offensive military operation in Rafah, and elsewhere,\u201d he wrote.<\/p>\n<\/div>\n<\/div>\n All of the experts I spoke to agreed that the order prohibited Israel from continuing its current operation in Rafah, but believed it allowed for Israel to take more limited defensive actions in the city in response to attacks from Hamas.<\/p>\n Pierre d\u2019Argent, a professor at the University of Louvain in Belgium, initially appeared to take a relatively restrictive view of the court\u2019s order in his posts on social media<\/a>, where he argued that the court had ordered Israel only \u201cto change course in its military operations, not to stop them all together in Rafah.\u201d<\/p>\n<\/div>\n<\/div>\n But when I reached out to him, d\u2019Argent told me via email that in fact \u201cthe issue is rather straightforward,\u201d and that in his view Israel could not continue its current military operation.<\/p>\n \u201cSince the court\u2019s concern is the worsening humanitarian situation, aid cannot be distributed if the military operations continue as they are,\u201d he said. \u201cThey must therefore cease as such (i.e. as they are currently being conducted), but the court is not prohibiting all military action in Rafah.\u201d<\/p>\n Stefan Talmon, a professor of international law at the University of Bonn in Germany, said in an interview with Der Spiegel<\/a>, a German newspaper, that the order only allowed for the military operation to continue if Israel ensured the civilian population could be supplied with food, water, and medicine. However, he believed that would be difficult to implement in practice. In effect, therefore, the offensive had to be halted.<\/p>\n Michael Becker, a law professor at Trinity College, Dublin, had a more categorical interpretation. \u201cI interpret this language to mean the military offensive in Rafah needs to be halted, period,\u201d he said. The order\u2019s discussion of the worsening humanitarian disaster makes clear that the current military offensive \u201calready creates a situation that may inflict on the Palestinian group in Gaza, conditions of life that could bring about its physical destruction in whole or in part,\u201d he added.<\/p>\n<\/div>\n<\/div>\n Oona Hathaway, a law professor at Yale University, agreed. \u201cThe urgent request for additional provisional measures was in light of what was happening right then,\u201d in the unfolding assault on Rafah, she said. \u201cIt just seems implausible that what the court meant was that it didn\u2019t see that there was anything of concern, at present.\u201d<\/p>\n The two judges who did not join the opinion also had narrow interpretations of what it required. Judge Aharon Barak wrote that the order mandated a halt to Israel\u2019s operations in Rafah \u201conly insofar as is necessary to protect the Palestinian group in Gaza\u201d from possible genocide, and that Israel was already under that obligation. Judge Julia Sebutinde wrote that the order did not \u201centirely prohibit\u201d Israel from operating in Rafah, but partially restricted the offensive \u201cto the extent it implicates rights under the Genocide Convention.\u201d<\/p>\n Israel has denied that its operation in Rafah risks the destruction of the Palestinian civilian population in Gaza.<\/p>\n \u201cIsrael 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,\u201d the head of the Israeli National Security Council and the spokesperson of the Israeli Ministry of Foreign Affairs said in a joint statement<\/a> on Friday. (The Israeli military and Ministry of Defense did not respond to my request for comment.)<\/p>\n Even as legal scholars have pondered the semantics of the court\u2019s order, the situation in Rafah has already moved on.<\/p>\n<\/div>\n<\/div>\n \u201cIn some ways, this debate among academics and the broader public about the precise contours of the I.C.J. order has been superseded by the weekend\u2019s events,\u201d Becker, the professor at Trinity College, Dublin, said, referring to an Israeli strike in Rafah<\/a> on Sunday that killed at least 45 people, including children, and wounded 249.<\/p>\n \u201cI think that the nature of what has happened in Rafah over the weekend demonstrates exactly the type of risk that the I.C.J. order was intended to prevent, under either reading,\u201d he added.<\/p>\n<\/div>\n<\/div>\n\n
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How did we get here?<\/strong><\/span><\/h3>\n
One order, two commas, many opinions<\/span><\/h3>\n
Overtaken by events<\/span><\/h3>\n