Naji Tilley

(Mis)Understanding the ICJ’s latest provisional measures order

Quite apart from the controversy accompanying its latest Provisional Measures ruling against Israel (24 May 2024), it seems to me that the International Court of Justice (ICJ) risks undermining public understanding in its work with the way it reached the main part of its decision.

This time around, the Court made a foray into much more uncomfortable territory, positively ordering that Israel immediately “halt its military offensive, and any other action in the Rafah Governorate, which may inflict conditions of life that could bring about [destruction of the Palestinians in Gaza].”

At first, this order might actually be hailed as far less clear and unconditional than the order South Africa had requested – that Israel must simply “immediately withdraw and cease its military offensive in the Rafah Governorate”. The ICJ instead used the softer word of “halt”, and pushed back the full stop in the sentence with cautious caveats, again suggesting its hesitation about being seen to wade too heavily into legitimate warfare.

But read the words of the order again, above. It is unfortunately now far from clear what the Court has actually ordered, because of – no joke – the use of a single Oxford comma and the words “which may” in that sentence. This is something that we now know some of the Court’s judges themselves recognised, as seen in their published judgments. Either the Court is saying Israel must halt its offensive in Rafah, period, and also halt “any other action which may inflict” the destructive consequences mentioned… or it is saying Israel should halt its offensive and any other action in Rafah only to the extent that it would inflict those consequences. 

The judges plainly appreciated how critically these small details influenced the way the order would be understood, and themselves took different positions on its interpretation. The two dissenting judges, the Court’s Vice-President Julia Sebutinde, and (now former) Israeli Judge Ad Hoc Aharon Barak, as well as Judge Bogdan Aurescu who was in the majority decision, felt the need to clarify that the order did not restrict lawfully exercised military and other activities in Rafah. On the other hand, Judge Dire Tladi saw the order as restricting Israel’s military “offensive”, so that Israel’s only lawful actions in Rafah are when repelling specific attacks against Israel.

What we see, therefore, is that the ICJ has again attempted fancy linguistic footwork to try and remove any possible interpretation of absolutism in what it wants Israel to do when the political heat is at full blast. 

That this sentence was what emerged as the order of the Court is deeply unhelpful. It doesn’t help the media, it doesn’t help public understanding, it doesn’t help anyone who is supposed to benefit from this judgment. In such a heated political context, the ICJ must avoid the temptation for performative declarations which create purely unnecessary levels of confusion. Having previously botched the explanation of its well-established test of “plausibility” (which led the media to misreport its ruling as a plausible case of genocide), here the Court has knowingly created yet more ambiguity for politicians, journalists and the wider public – and arguably it was one solitary, decisive Oxford comma away from avoiding it.

More broadly, however, the fault may not totally lie at the door of the ICJ. This sloppy moment of judgecraft might instead be a symptom of the dangerous political waters within which the ICJ has unfortunately been asked to tread. Amidst the fog of an ongoing war, the bringing of a genocide case is a quest for absolutism in a political context where absolutism solves absolutely nothing. Perhaps it’s no wonder, then, that the ICJ ended up tying itself in such knots. There are clear dangers in a court being asked to preside over lawfare of this kind.

But with this order, the first time the ICJ has demanded Israel to engage in some form of “ceasefire now”, the Court has again created enough unnecessary ambiguity that it once again fans the flames of media misinformation and hinders public understanding.

About the Author
Naji Tilley is a trainee lawyer based in London, UK. He holds two Law degrees from the London School of Economics (LSE) and the University of Birmingham, both with Distinction/First Class Honours, and the Legal Practice Course (LPC), also with Distinction. Naji had his Bar Mitzvah and was married in Israel, and has led various trips to Israel for school and university students, as well as trips to Poland and Ukraine. Naji's current interests are in the ways in which the Israel and Hamas war is debated, covered by the media and litigated in domestic and international courts. All views expressed are Naji's own, and not those of his employers past or present.