The International Court of Justice (ICJ) ruling in South Africa’s genocide case against Israel on 24 May is both more and less complicated than it initially appears. To avoid a plausible harm to Palestinians’ rights under the Genocide Convention, the court ordered Israel to curtail its military invasion of Gaza’s southernmost city of Rafah, where 1.4 million Palestinians had been sheltering. Compliance would save countless lives. Yet if Israel ignores the legally binding decision, enforcement efforts will turn to the UN Security Council, where the US veto is an obstacle.
The US government is not the only problem. The difficulty of enforcement begins with the court’s own decision. Although much of the media reported an order to “immediately halt” Israel’s Rafah offensive, the actual language was more ambiguous. The court ordered Israel 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” (emphasis added).
The “conditions of life” language comes from the Genocide Convention. Is the court saying that the Rafah offensive must stop because it could lead to destructive conditions of life, or that it should stop insofar as it leads to those conditions? It can be argued both ways. The Israeli government predictably read it to require halting the Rafah invasion only insofar as it created destructive conditions of life. So did the court’s Romanian judge. Israel said it had not imposed those conditions to date, which is demonstrably false; the court found that the “catastrophic living conditions of the Palestinians in the Gaza Strip had deteriorated further” since its first order in January. But Israel also vowed that its future military operations in Rafah would not impose such conditions – which respects the language of the court’s order, even if history suggests that Israel’s actions are unlikely to do so.
Two days after the court’s ruling, on 26 May, an Israeli air strike on a tent camp for displaced people in western Rafah killed at least 45 people, according to the Gaza health ministry, including 23 women, children and older people, and wounded 249. Following international condemnation, the Israeli prime minister, Benjamin Netanyahu, said the following day that the strike was a “mistake” but didn’t address the rules of engagement that had permitted an air strike in the middle of a densely populated tent camp filled with civilians.
Why was the court so ambiguous? We don’t know for sure. It may have been necessary to secure the overwhelmingly positive vote – 13 to two, with only the Israeli and Ugandan judges opposed. Or it may have reflected the court’s awareness that, when it comes down to it, it is just 15 judges in robes with no coercive capacity beyond their power of persuasion. They may have felt that sticking to the language of the Genocide Convention was more prudent.
By contrast, the court was unconditional in ordering Israel to open the Rafah border crossing to Egypt “for unhindered provision at scale of urgently needed basic services and humanitarian assistance” and to “ensure unimpeded access to the Gaza Strip” by any UN investigator into allegations of genocide. So far, with Israeli troops having taken over the Rafah border crossing, humanitarian aid passing through it has stopped. And Israel has not allowed any investigator into Gaza from the UN or the International Criminal Court (ICC).
Might the Security Council act to back the court? The US government has a long history of using its veto to block action against Israel, but there have been rare exceptions. In March, for instance, the US abstained to allow the council to demand an “immediate”, though temporary, ceasefire in Gaza. But the Biden administration immediately undercut the resolution by claiming, falsely, that it was “non-binding”.
It is not out of the question that Joe Biden would allow a Security Council resolution on Rafah. After all, his administration has been pressing the Israeli government not to invade the city – a supposed “red line” – and to stop obstructing humanitarian aid. But if it permitted a Security Council resolution, it would likely parallel the court’s ambiguous language, which would allow Israel the same unsatisfactory response.
Biden has other leverage at his disposal. He could make further US arms sales or military aid conditional on the Rafah offensive stopping. To avoid use in Rafah, he did suspend delivery of the massive 2,000lb bombs that Israel had been using repeatedly to pulverise Gaza neighbourhoods, but the significance of that move was lessened by the announcement that $1bn of other US arms deliveries would move forward.
Yet the Biden administration is already hedging on its stand against an invasion of Rafah. The Israeli government has been describing the invasion as a “limited operation”, despite 800,000 Palestinians having fled. The US national security adviser, Jake Sullivan, says that Israel has made “refinements” to spare civilians that seem in his view to make the military operation so far acceptable. The White House’s response to the 26 May attack was to say that it reportedly had killed “two senior Hamas terrorists”, as if that justified the huge civilian toll, but to urge, yet again, that “Israel must take every precaution possible to protect civilians”. There was no condemnation.
But the US government, important as it is, is not the only source of pressure on Israel. In ignoring the court’s Rafah ruling, Netanyahu puts his – and Israel’s – interests at considerable risk in other ways.
The three ICJ Justice rulings since January have all imposed “provisional measures” against the possibility of genocide. A ruling on the merits of South Africa’s genocide case will come later, with the key issue being whether the devastation and large-scale loss of life that Israel has imposed on Palestinian civilians in Gaza was done with genocidal intent. The court is more likely to answer that question affirmatively if Israel ignores its preliminary protective rulings.
On 20 May, Karim Khan, the prosecutor of the separate ICC, announced he was seeking arrest warrants for Netanyahu and the Israeli defence minister, Yoav Gallant, for war crime charges related to the starvation of Palestinian civilians in Gaza. (He also sought arrest warrants for three senior Hamas officials for atrocities on 7 October and the treatment of hostages.) Israeli defiance of the ICJ’s order would make it more likely that the ICC’s pretrial chamber affirms the charges against Netanyahu and Gallant and issues arrest warrants. It could also be used as evidence at trial.
Two days after the ICC announcement, on 22 May, Spain, Ireland and Norway recognised Palestine as a state – the only European governments to have done so other than Sweden. Their timing was clearly related to Israel’s conduct in Gaza. If there is one thing that Netanyahu hates more than Hamas, it is the prospect of a Palestinian state. That is why, until 7 October, he allowed Qatar to fund Hamas, calculating that a strong Hamas would relieve Israel of pressure to negotiate his dreaded two-state solution. Now, he refuses to plan for post-war governance of Gaza, even though the resulting vacuum makes Hamas’s return more likely, because he fears more the emergence of a prototype Palestinian state. If the Israeli government continues to ignore the ICJ ruling, more governments can be expected to recognise Palestine as a state.
In short, it is a mistake to discount the court’s ruling as ambiguous and difficult to enforce. If, despite the ruling, Israel proceeds with its invasion of Rafah, as the 26 May attack suggests it is, the consequences may be difficult for Netanyahu to ignore.
[See more: “I’m not sure how Israel is going to overcome this”]
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