In the future, Aharon Barak, the ad-hoc judge representing Israel at the International Court of Justice (ICJ), may shed light on the internal deliberations of the 15 judges regarding South Africa's fourth request for temporary orders against Israel, under the Convention for the Prevention of Genocide. The ruling, delivered by ICJ President Nawaf Salam, leaves the main issue unresolved: should Israel cease its military operations in Rafah entirely, or only actions that risk genocidal conditions for the Palestinian group in Gaza?
The directive's wording—Israel must “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”—is ambiguous. It's unclear if the qualification about genocidal conditions applies solely to "any other action" or to the "military offensive" as well. Thus, interpretations vary on whether Israel must halt all military activities in Rafah or only those posing a genocidal threat.
Most headlines claimed the court ordered Israel to stop its Rafah operations. However, the minority opinion by Justice Barak and Vice President Julia Sebutinde, along with opinions from three majority judges, indicate that Israel may continue its military actions as long as they don't threaten the Palestinian population's existence. German Judge Georg Nolte, supported by Romanian Judge Bogdan Aurescu and Judge Sebutinde, emphasized that the halt is conditional, allowing Israel to defend itself and its citizens while avoiding actions that risk annihilating the Palestinian group.
South African ad-hoc judge Dire Tladi, dissenting, argued that the order prohibits any offensive Israeli action in Rafah, though even he acknowledged that defensive actions in response to Hamas attacks are permissible. The remaining 10 judges did not publish their interpretations, leading to a situation where the compromise ruling allows each side to read it as they wish.
Following the decision, Israeli Prime Minister Benjamin Netanyahu held discussions with senior ministers and legal professionals, leading to a joint statement echoing the court's language. Israel interpreted the decision to mean it could continue military operations in Rafah as long as they did not create genocidal conditions for Palestinians.
The ICJ ruling updated temporary orders initially issued in January and amended in March, reflecting the deteriorating humanitarian situation in Gaza. The court had to conclude that conditions on the ground had changed to warrant these updates. Some judges expressed concerns about the court's overreach in micromanaging the conflict and repeatedly amending its orders.
South Africa argued that the court needed to make its orders more specific to ensure enforcement, claiming the UN Security Council or General Assembly were unlikely to act for political reasons. The court agreed, issuing several directives, including opening the Rafah crossing for humanitarian aid, allowing UN investigative teams into Gaza, and requiring Israel to report on these measures within a month.
Statements from Israeli ministers like Bezalel Smotrich and Itamar Ben Gvir, advocating for the destruction of Gaza or blocking humanitarian aid, have cast doubt on Israel’s commitment to international law, potentially worsening its legal standing in international courts.
In summary, the ICJ did not grant South Africa's request to halt all Israeli military actions in Gaza but imposed conditions aimed at preventing genocidal risks. The ambiguity in the ruling has led to differing interpretations, with Israel maintaining that its operations can continue under certain conditions.
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