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Israel says Sunday’s attack, which set fire to a crowded refugee camp in Rafah and killed 45 Palestinians, did not violate Decision of the International Court of Justice – a directive believed to instruct Israel to completely halt its military offensive in the southern city of Gaza.
The apparent controversy reflects a fierce and ongoing debate over the decision’s ambivalent language — and the placement of a single comma in a key sentence.
Israeli sources said a close reading of the order showed it was not as prescriptive as many had thought, and that the wording was a compromise deliberately open to different interpretations so as to gain maximum support from the 15 justices.
The resolution, passed by 13 votes to two, said Israel must: “Immediately cease its military offensive and any other actions in the Rafah province that may harm the Palestinian group in Gaza living conditions which could lead to its physical destruction in whole or in part.’
This language echoes the 1948 Genocide Convention, and many immediate media and diplomatic reports interpreted the order as a general directive to end the Rafah offensive.
But soon after, Israel’s foreign ministry suggested it had been ordered to halt its offensive only if it creates conditions that could lead to the physical destruction of the Palestinian population.
IN statement, the foreign ministry said: “Israel has not and will not conduct military operations in the Rafah area that could create living conditions for the Palestinian civilian population in Gaza that could lead to their total or partial physical destruction.” In fact, Israel argued that the ruling was not applicable because the Israeli military did not carry out the prohibited acts.
This interpretation was supported by one of the dissenting judges, former Chief Justice of Israel Aaron Barak, who was an ad hoc judge on the International Court of Justice. In his opinion, he wrote that the majority decision “requires Israel to suspend its military offensive in Rafah province only to the extent necessary to comply with Israel’s obligations under the Genocide Convention.”
Therefore, according to Barak, “the measure is qualified,” which does not prevent Israel from continuing its operations in Rafah, “as long as it fulfills its obligations under the genocide convention.”
The other dissenting judge, Ugandan jurist Julia Sebutinde, also argued that the order “works to partially limit Israel’s offensive in Rafah to the extent it affects rights under the genocide convention.”
Sebutinde wrote that the decision “could be misconstrued as imposing a unilateral ceasefire in part of Gaza” and amounted to “micromanaging the hostilities in Gaza by limiting Israel’s ability to pursue its legitimate military objectives.”
Romanian judge Bogdan Aurescu – who was among the 13 judges who supported the decision – also said the order it should have been clearer.
In contrast, South African judge Dire Tladi, who also upheld the order, found that the court had “expressly ordered the State of Israel to halt its offensive in Rafah.”
The UK and US governments have not commented on the international court’s order or expressed a preferred interpretation.
Alonso Gourmendi, a lecturer in international affairs at Oxford University, said the order had to be seen in the context of what the judges had said elsewhere about the offensive, including the statement that it carried an additional risk of irreparable damage to the plausible rights claimed by South Africa.
He wrote on social media: “My opinion is that the court ordered Israel to stop its military offensive in Rafah and point. It also ordered Israel to stop any other actions that could impose on the Palestinians living conditions that could lead to their total or partial physical destruction.
Amnesty International also argued that the decision was unequivocal, with Heba Morayef, the rights group’s regional director for Middle East and North Africawriting: “With this order, the International Court of Justice (ICJ) – the UN’s chief court – has made it crystal clear: the Israeli authorities must completely halt military operations in Rafah, as any continued military action could constitute a fundamental act of genocide.”
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