Berl Falbaum
“International Criminal Court of Justice Orders Israel to Immediately Halt Its Offensive in Rafah.”
That headline in various forms blared across the world in newspapers and TV news shows when the court ruled on South Africa’s petition to halt Israel’s military operation against Hamas.
There is only one teeny-weeny problem: As Sportin’ Life tells us in the opera “Porgy and Bess:” It Ain’t Necessarily So.
The decision is much more nuanced, so much so that even some of the court’s judges disagree on what the court ruled.
The following headline appeared over a column by Yuval Yoaz in the Times of Israel:
“Confused by ICJ’s Decision on Gaza? Blame the Judges’ Deliberate Ambiguity.”
Yoaz writes: “The key sentence in the court’s ruling is a non-definitive three-clause construct. And the judges themselves don’t agree on what it is they are requiring Israel to do.”
Here is that key sentence from the court’s decision: Israel will “immediately half its military offensive and any other action in the Rafah Governate which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in the whole or in part.”
To be clear: The reporting would have been accurate if the court had stopped after “Rafah Governate.” But it didn’t. It ruled that Israel only had to halt its operations if it would bring about the “physical destruction in the whole or in part” on the Palestinians.
Stated another way: Israel can proceed with its military operations if it does not violate obligations under the Geneva Conventions.
Blaise Misztal, a national security policy advisor for the Jewish Institute for National Security of America, said, “So, Israel still has the legal right to continue operating in Rafah so long as it can show it is fulfilling its obligations to prevent the commission of genocide.”
Unfortunately, and one may charge irresponsibly, the world media generally dropped the second part of the most important sentence in the ICJ ruling.
Thus, all Israel had to do was respond that it has no intention of annihilating the Palestinian people. Indeed, that’s exactly what Israel did, stating it, “has not and will not” destroy Rafah’s civilian population.
Israel’s National Security Council and the Foreign Ministry, recognizing the ambiguity of the court’s order, issued the following statement:
“Israel did not and will not conduct military activity in the Rafah area that creates conditions of life that could bring about the physical destruction of the Palestinian civilians, in whole or in part.”
Israel’s National Security Advisor Tzachi Hanegbi followed up with: “What they are asking us, is not to commit genocide in Rafah. We did not commit genocide and we will not commit genocide. According to international law, we have the right to defend ourselves and the evidence is that the court is not preventing us to continue to defend ourselves.”
Former Israel Court president Aharon Barak, an ICJ ad-hoc judge who was joined by three other judges who explained that Israel was not ordered to stop all military operations in Rafah, said in his dissent:
“The measure [court decision] is a qualified one, which preserves Israel’s right to prevent and repel threats and attacks by Hamas, defend itself and its citizens and free the hostages.”
The German judge, Georg Nolte, who joined the majority, wrote, “The measure obliging Israel to halt the current military offensive in Rafah is conditioned by the need to prevent ‘conditions of life that could bring about the physical destruction in whole or in part’ of the Palestinian group in Gaza.
“Thus, this measure does not concern other actions of Israel which do not give rise to such a risk.”
Yoaz points out that even the South African ad-hoc judge, Dire Tladi, who argued that the ruling prohibits any Israel military operations in Gaza, added that the decision only forbids “offensive” operations and that Israel’s defensive actions in response to specific Hamas attacks are not banned.
The Romanian judge, Bogdan Aurescu, who was part of the majority, also agreed with Barak’s view of the ruling.
Regrettably, we are left with a court decision which settles nothing. Instead, it creates more dissension with various parties interpreting the ruling in a manner that serves their special interests.
(The ICJ, based in The Hague, is the highest U.N. body which has jurisdiction to hear disputes between sovereign states. Its rulings are binding but the court has no enforcement powers.)
The ruling was adopted by a vote of 13-2 with the majority representing the following countries: The United States, Australia, Brazil, China, France, Germany, India, Japan, Lebanon, Mexico, Romania, Somalia, and South Africa. The two dissenters were Israel and Uganda.
We deserved clarity, but got ambiguity. We needed decisiveness but instead received evasiveness. We needed — badly — firmness, but now have to process vacillation. We hoped and prayed for leadership but instead were served with judicial impotence.
As Yoaz wrote: “Whatever the reasons, the judges chose not to formulate a single, short, non-ambiguous sentence stating precisely what Israel was being required to do.”
Perhaps there was a method to the ICJ’s madness. If only the court would explain it to the world.
That headline in various forms blared across the world in newspapers and TV news shows when the court ruled on South Africa’s petition to halt Israel’s military operation against Hamas.
There is only one teeny-weeny problem: As Sportin’ Life tells us in the opera “Porgy and Bess:” It Ain’t Necessarily So.
The decision is much more nuanced, so much so that even some of the court’s judges disagree on what the court ruled.
The following headline appeared over a column by Yuval Yoaz in the Times of Israel:
“Confused by ICJ’s Decision on Gaza? Blame the Judges’ Deliberate Ambiguity.”
Yoaz writes: “The key sentence in the court’s ruling is a non-definitive three-clause construct. And the judges themselves don’t agree on what it is they are requiring Israel to do.”
Here is that key sentence from the court’s decision: Israel will “immediately half its military offensive and any other action in the Rafah Governate which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in the whole or in part.”
To be clear: The reporting would have been accurate if the court had stopped after “Rafah Governate.” But it didn’t. It ruled that Israel only had to halt its operations if it would bring about the “physical destruction in the whole or in part” on the Palestinians.
Stated another way: Israel can proceed with its military operations if it does not violate obligations under the Geneva Conventions.
Blaise Misztal, a national security policy advisor for the Jewish Institute for National Security of America, said, “So, Israel still has the legal right to continue operating in Rafah so long as it can show it is fulfilling its obligations to prevent the commission of genocide.”
Unfortunately, and one may charge irresponsibly, the world media generally dropped the second part of the most important sentence in the ICJ ruling.
Thus, all Israel had to do was respond that it has no intention of annihilating the Palestinian people. Indeed, that’s exactly what Israel did, stating it, “has not and will not” destroy Rafah’s civilian population.
Israel’s National Security Council and the Foreign Ministry, recognizing the ambiguity of the court’s order, issued the following statement:
“Israel did not and will not conduct military activity in the Rafah area that creates conditions of life that could bring about the physical destruction of the Palestinian civilians, in whole or in part.”
Israel’s National Security Advisor Tzachi Hanegbi followed up with: “What they are asking us, is not to commit genocide in Rafah. We did not commit genocide and we will not commit genocide. According to international law, we have the right to defend ourselves and the evidence is that the court is not preventing us to continue to defend ourselves.”
Former Israel Court president Aharon Barak, an ICJ ad-hoc judge who was joined by three other judges who explained that Israel was not ordered to stop all military operations in Rafah, said in his dissent:
“The measure [court decision] is a qualified one, which preserves Israel’s right to prevent and repel threats and attacks by Hamas, defend itself and its citizens and free the hostages.”
The German judge, Georg Nolte, who joined the majority, wrote, “The measure obliging Israel to halt the current military offensive in Rafah is conditioned by the need to prevent ‘conditions of life that could bring about the physical destruction in whole or in part’ of the Palestinian group in Gaza.
“Thus, this measure does not concern other actions of Israel which do not give rise to such a risk.”
Yoaz points out that even the South African ad-hoc judge, Dire Tladi, who argued that the ruling prohibits any Israel military operations in Gaza, added that the decision only forbids “offensive” operations and that Israel’s defensive actions in response to specific Hamas attacks are not banned.
The Romanian judge, Bogdan Aurescu, who was part of the majority, also agreed with Barak’s view of the ruling.
Regrettably, we are left with a court decision which settles nothing. Instead, it creates more dissension with various parties interpreting the ruling in a manner that serves their special interests.
(The ICJ, based in The Hague, is the highest U.N. body which has jurisdiction to hear disputes between sovereign states. Its rulings are binding but the court has no enforcement powers.)
The ruling was adopted by a vote of 13-2 with the majority representing the following countries: The United States, Australia, Brazil, China, France, Germany, India, Japan, Lebanon, Mexico, Romania, Somalia, and South Africa. The two dissenters were Israel and Uganda.
We deserved clarity, but got ambiguity. We needed decisiveness but instead received evasiveness. We needed — badly — firmness, but now have to process vacillation. We hoped and prayed for leadership but instead were served with judicial impotence.
As Yoaz wrote: “Whatever the reasons, the judges chose not to formulate a single, short, non-ambiguous sentence stating precisely what Israel was being required to do.”
Perhaps there was a method to the ICJ’s madness. If only the court would explain it to the world.
