Ido Rosenzweig

ICJ’s Ruling: A Manageable Challenge for Israel

In a decision that can only be described as dramatic, the International Court of Justice (ICJ) in The Hague announced today the issuance of additional provisional measures against Israel in the case of South Africa vs. Israel under the Genocide Convention. The President of the Court read out the provisional measures, which pertain to several significant aspects: First and foremost, Israel is required 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.

Additionally, Israel is required to open the Rafah crossing for humanitarian aid as needed, allow free entry to an international commission of inquiry or fact-finding missions to be established by the UN, and lastly, Israel is required to submit a report on the implementation of these measures in a month. All decisions were made by a clear majority of 13 judges in favor and two judges against (the Israeli judge Aharon Barak and the Ugandan judge Julia Sebutinde).

Undoubtedly, this appears to be a precedent-setting decision by the ICJ in ordering the cessation of active combat against an enemy that has attacked and continues to attack Israel. Moreover, it can be argued that, similar to previous decisions, the ICJ continues to ignore the reality where there are two sides to the conflict, and it is not a one-sided attack by Israel. However, a careful reading of the decision shows that the judges left a certain margin for interpretative discretion regarding what types of combat actions fall within the scope of the measures. A reasonable reading of the judges’ decisions could indeed lead to the understanding that the judges are not requiring Israel to stop fighting but are demanding that it limit its operations to actions that do not violate the Genocide Convention.

In other words, an interpretation suggesting that Israel should focus on precise surgical operations and avoid aggressive and destructive warfare could be considered reasonable and applicable from the perspective of Israel and the IDF. As noted by judge Barak in his dissenting opinion, this measure requires Israel to practically implement its obligations under the Genocide Convention and therefore does not imply a blanket cessation of operations in Rafah. Furthermore, Romanian judge Aurescu, explicitly stated in his declaration that the provisional measure does not require Israel to cease lawful combat and to exercise its right to protect its citizens and free the hostages.

Regarding the measures on humanitarian aid, the ICJ reaffirmed the previous measures primarily concerning Israel’s obligations to enable and ensure the entry of humanitarian aid and added an instruction for Israel to maintain Rafah crossing open. It is important to note that in response to a specific question by German judge Nolte, Israel provided the ICJ with detailed information about its humanitarian aid efforts and its ability to ensure humanitarian conditions. This means that Israel failed to convince the majority of judges that the aid entering the Gaza Strip is effective and that Israel’s actions to evacuate the population from Rafah meet the humanitarian needs of this population. Israel did manage to convince judge Nolte that significant efforts are being made in this area.

In response to this measure, it seems that Israel will need to rethink the entire issue of humanitarian aid and its distribution. Although there is no doubt that the quantities entering Gaza are impressive, if they do not reach their destination, Israel does not meet the Court’s requirements. The most important aspect in this context is to improve the working relations and communication between Israel and the UN representatives in southern Gaza. Regarding the Rafah crossing, Israel needs to demonstrate that it is indeed doing everything possible to allow goods to pass through Rafah and shift the burden and pressure on this issue to Egypt.

The provisional measures that requires taking effective measures to ensure the unimpeded access the entry of a fact-finding committee will significantly challenge the Israeli government. Until now, Israel has mostly refused to cooperate with such international committees. The question of implementing this decision will require Israel to think about how to address this issue, as it is hard to believe that Israel will agree to cooperate with the Human Rights Council’s Commission of Inquiry, known for its bias against Israel. To address this measure, Israel will need to take an active approach and demand to participate in the selection of the UN’s fact-finding committee and ensure that its mandate is limited only to the framework of the Genocide Convention and not to the conduct of hostilities. Any other approach that completely opposes cooperation will only work against Israel’s interests.

Despite the difficult feeling that may arise, that the ICJ has gone too far, care must be taken not to “throw the baby out with the bathwater.” Israel is simultaneously facing a physical battlefield in Gaza and a metaphorical battlefield in The Hague. Just as Israel will not give up on the security of its citizens and residents, and must not give up on rescuing the hostages, Israel must also not give up on the fight for its status in the international arena. Israel needs to make every effort to find a way to implement the decision while preserving its security and diplomatic interests.

It should also be remembered that South Africa’s request was for much more far-reaching provisional measures than those issued, so Israel did manage to stop the drift. If Israel can find the balance that allows it to implement the measures, it can avoid a diplomatic spiral whose end is unknown.

About the Author
Dr. Ido Rosenzweig is the co-founder and chairman of ALMA - Association for the Promotion of International Humanitarian Law, and the Director of Research (Terrorism, Belligerency, and cyber) at the Minerva Center for the Rule of Law under Extreme Conditions in the University of Haifa [Photo by Flash90]
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