World Court orders Israel to halt its military assault on Rafah

By Annette Gartland on May 25, 2024

The International Court of Justice (ICJ) in The Hague has told Israel to immediately halt its military assault on Rafah and has described the humanitarian situation in Rafah as disastrous.

Reading out the new ruling yesterday (Friday), the president of the court, Nawaf Salam, said that Israel should, 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, “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”.

In response to a new request from South Africa, the ICJ reaffirmed the provisional measures indicated in its orders of January 26 and March 28, 2024, which it said “should be immediately and effectively implemented”.

The court added that circumstances required it to modify its decision set out in its order of March 28.

It indicated four new provisional measures, including the order for Israel to halt its military offensive in Rafah, which was passed by 13 votes to two.

The ICJ ruled, by 13 votes to two, that Israel should maintain open the Rafah crossing “for unhindered provision at scale of urgently needed basic services and humanitarian assistance”.

It also ruled, again by 13 votes to two, that Israel should take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.

Lastly, it ruled, also by thirteen votes to two, that Israel should submit a report to the court on all measures taken to give effect to the May 24 order within one month as from the date of the order.

The court’s vice-president, Justice Julia Sebutinde from Uganda, and the ad hoc judge for Israel, Aharon Barak, voted against all the provisional measures indicated in the new order and the reaffirmation of the measures previously indicated.

The ICJ said the catastrophic humanitarian situation in the Gaza Strip had deteriorated, and had done so even further since the court adopted its order of March 28.

“In this regard, the court observes that the concerns that it expressed in its decision communicated to the Parties on 16 February 2024 with respect to the developments in Rafah have materialised and that the humanitarian situation is now to be characterised as disastrous,” Nawaf Salam (pictured below left) said.

The ICJ noted that, after weeks of intensification of military bombardments of Rafah, where more than a million Palestinians had fled as a result of Israeli evacuation orders covering more than three quarters of Gaza’s entire territory, on May 6, 2024, nearly 100,000 Palestinians were ordered by Israel to evacuate the eastern portion of Rafah and relocate to the Al-Mawasi and Khan Younis areas ahead of a planned military offensive.

The military ground offensive in Rafah, which Israel started on May 7, 2024, was ongoing, the court said, and had led to new evacuation orders.

“As a result, according to United Nations reports, nearly 800,000 people have been displaced from Rafah as at 18 May 2024,” the ICJ said.

The ICJ said it considered that these developments were “exceptionally grave” and constituted a change in the situation within the meaning of Article 76 of the Rules of Court.

“The court is also of the view that the provisional measures indicated in its Order of 28 March, 2024, as well as those reaffirmed therein, do not fully address the consequences arising from the change in the situation, thus justifying the modification of these measures,” the ICJ added.

The ICJ said it further considered that, on the basis of the information before it, “the immense risks associated with a military offensive in Rafah have started to materialise and will intensify even further if the operation continues”.

The court said it was not convinced that the evacuation efforts and related measures that Israel affirmed to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah Governorate, were sufficient “to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah”.

The South African president, Cyril Ramaphosa, said South Africa welcomed the order handed down by the ICJ yesterday.

“South Africa’s request was based on UN sources and information from other credible international NGOs, and the court’s own recounting of the facts,” Ramaphosa said.

“Those facts were not refuted by Israel with anything but its own unsourced, unsupported, and unilateral assertions.”

Ramaphosa said expert accounts pointed to Israel having repeatedly bombed, shelled, and invaded areas that it had previously designated as safe humanitarian zones.

Israel had also repeatedly displaced Palestinians from sites where it previously directed them to seek refuge and shelter, he said.

“We are gravely concerned that Israel has restricted necessary levels of aid from entering Gaza and has systematically targeted aid and aid infrastructure within Gaza,” Ramaphosa said.

“This case is thus focused on the ordinary Palestinians in Gaza who are now facing their seventh month of suffering through collective punishment for something for which they have no individual responsibility.”

South Africa remained concerned that the United Nations Security Council had so far not succeeded in stopping the human suffering, Ramaphosa said.

“Under international law, Israel is obliged to implement the court’s order, as well as the previous orders of 26 January (as reaffirmed by the Court on 16 February) and 28 March,” he added.

“Similarly under international law, the prohibition on genocide is a peremptory norm from which no derogation is permitted, for any reason whatsoever.”

The director-general of South Africa’s Department of International Relations and Cooperation, Zane Dangor, said that, like other ICJ orders, yesterday’s order was binding and Israel has to adhere to it. Other states that were parties to the Genocide Convention were also obliged to respect the orders of the court, Dangor said.

Dangor said South Africa would be approaching the UN Security Council with the new ICJ order.

Palestine’s Ministry of Foreign Affairs and Expatriates said it welcomed yesterday’s ICJ order.

“Israel is bound by the provisional measures, including allowing all commissions of inquiry, fact-finding mission or other investigative body mandated by the United Nations, to enter Gaza,” the ministry said.

“Equally, all states are legally obliged to respect and ensure the implementation of these and previous provisional measures. The State of Palestine calls on the international community to assume its responsibilities in this regard, namely protecting the rules-based order and standing of the court by ensuring Israel’s immediate compliance. Palestine will work with all law-abiding states to serve these binding obligations.”

The ministry said Palestine reiterated its gratitude to the people and government of South Africa “for their moral and legal leadership in defending humanity and pushing for an end to the genocide”.

The head of Israel’s National Security Council, Tzachi Hanegbi, and spokesman for the Ministry of Foreign Affairs Oren Marmorstein said in a joint statement that the charges of genocide brought by South Africa against Israel at the ICJ were “false, outrageous, and morally repugnant”.

Israel had not and would 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”, they said.

“Israel will continue its efforts to enable humanitarian assistance and will act, in full compliance with the law, to reduce as much as possible harm caused to the civilian population in Gaza,” they added.

Making his submission to the ICJ on May 17, Israel’s deputy attorney-general for international law, Gilad Noam, accused South Africa of giving a false picture of what was happening in Gaza and insisted that Israel was engaged in a war it did not want and did not start.

In a thread on X (Twitter), reader in public law and author Nimer Sultany analyses the dissenting opinions appended by judges Sebutinde and Barak and the separate declarations appended by judges Nolte, Aurescu, and Tladi.

Sultany touches on the ambiguity that some say exists in the ICJ’s sentence about Israel halting military operations in Rafah.

In a separate thread, lecturer in international relations at Kings College London Alonso Gurmendi grapples with the disagreement as to how exactly the sentence about halting military operations in Rafah should be read.

“I read it as meaning that Israel has to halt its offensive in Rafah, period. And it should also halt ‘any other action which may inflict on the Palestinians conditions of life that could bring about their physical destruction’,” Gurmendi tweeted.

He added, however: “Judges Sebutinde, Aurescu and Barak however seem to think it means that Israel should halt its offensive *and* any other action in Rafah *only* to the degree it would inflict on Palestinians conditions of life that could bring about their destruction.”

Professor at Rutgers Law School, author, and executive editor of Just Security Adil Haque wrote in Just Security: “The Court’s principal order is somewhat ambiguous, but its practical import is clear. Israel must refrain from any action in Rafah that risks killing a substantial part of the Palestinian group, either through bombardment or through displacement to areas where they will not long survive.”

Haque said the ICJ found that Israel’s current military offensive was such an action.

“This military offensive seeks to expel hundreds of thousands of civilians from Rafah without providing for their most basic needs, followed by air and ground operations that will kill many of the civilians who remain,” Haque wrote.

“This military offensive must immediately halt. Israel may engage in other military operations in Rafah that do not carry such risks, including limited responses to rocket fire and precise hostage rescue operations. But the current military offensive unfolding before our eyes must stop.”

Haque also highlights some of the legal issues raised in the three separate declarations and the two dissenting opinions.

Israel’s eight-page response to the question posed by Judge Nolte at the end of the ICJ hearing on May 17 is available here, and South Africa’s 61 pages of comments about Israel’s response are here.

Timeline:

On December 29, 2023, South Africa filed an application instituting proceedings against Israel concerning alleged violations by Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide in relation to Palestinians in the Gaza Strip.
South Africa asked the court to indicate provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”.
On January 26, 2024, the court delivered its order in response to South Africa’s request.
On February 16, the ICJ said that it had rejected a request made by South Africa on February 12 for additional measures to protect Palestinians in Gaza. The court said the “perilous situation” in Gaza did not demand the indication of additional provisional measures.
The situation demanded immediate and effective implementation of the provisional measures indicated by the court in its order of January 26, the court said.
Following a further request from South Africa on March 6, the ICJ issued an order on March 28 indicating additional provisional measures.
On May 16 and 17, the ICJ held public hearings on the request filed by South Africa on May 10 for the modification of provisional measures previously indicated by the court and the indication of additional provisional measures.