On May 24, 2024, the International Court of Justice indicated provisional measures for the third time in the case brought by South Africa against Israel alleging violations of the Genocide Convention in the Gaza Strip. The Court ordered Israel to
“[i]mmediately 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.”
The Court also ordered Israel to open the Rafah crossing, to allow United Nations fact-finders to enter Gaza, and to report to the Court within one month regarding its compliance with the Court’s orders. The Court also reaffirmed its prior orders and reiterated its call for the immediate and unconditional release of all hostages held by Hamas and other armed groups.
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. The Court found that Israel’s current military offensive is 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. 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.
The Order
The Court first established that the situation in Gaza has sufficiently changed since its second order of March 28 to justify indicating new provisional measures. The Court found that the “catastrophic humanitarian situation” in Gaza “has deteriorated” and “is now to be characterized as disastrous.” The Court found that these developments, “which are exceptionally grave, in particular the military offensive in Rafah and the resulting repeated large-scale displacement of the already extremely vulnerable Palestinian population in the Gaza Strip [including 800,000 displaced as of May 18], constitute a change in the situation.” The Court also found that its prior orders “do not fully address the consequences arising from the change in the situation.”
The Court then established that the general legal criteria for the indication of provisional measures are met. The Court reaffirmed that it has prima facie jurisdiction to hear the case. It also reaffirmed that at least some of the rights claimed by South Africa are plausible, including “the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts” under the Genocide Convention.
Most importantly, the Court found that “the current situation arising from Israel’s military offensive in Rafah entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa and that there is urgency, in the sense that there exists a real and imminent risk that such prejudice will be caused before the Court gives its final decision.”
The Court observed that “senior United Nations officials have consistently underscored the immense risks associated with a military offensive in Rafah” and “warned that an assault on Rafah would put ‘hundreds of thousands of people … at imminent risk of death’ and would severely impact the humanitarian operation in the entire Gaza Strip, which is run primarily out of Rafah.” The Court noted that “United Nations sources indicate that the above-mentioned risks have started to materialize and will intensify even further if the operation continues,” observing that Israel’s military offensive has already disabled critical hospitals and rendered food warehouses inaccessible.
Crucially, the Court found Israel’s assurances unconvincing, writing that:
On the basis of the information before it, the Court is not convinced that the evacuation efforts and related measures that Israel affirms to have undertaken to enhance the security of civilians in the Gaza Strip, and in particular those recently displaced from the Rafah Governorate, are sufficient to alleviate the immense risk to which the Palestinian population is exposed as a result of the military offensive in Rafah. …
The Court observes that Israel has not provided sufficient information concerning the safety of the population during the evacuation process, or the availability in the Al-Mawasi area of the necessary amount of water, sanitation, food, medicine and shelter for the 800,000 Palestinians that have evacuated thus far. Consequently, the Court is of the view that Israel has not sufficiently addressed and dispelled the concerns raised by its military offensive in Rafah.
The Court concluded that additional provisional measures are urgently needed to preserve the rights of the Palestinians of Gaza under the Genocide Convention from real and imminent risk arising from Israel’s current military offensive. In my view, this stark finding demands immediate action from the international community, including from the United Nations Security Council.
The Measures
The Court reaffirmed its prior orders, then indicated four new provisional measures, each by an overwhelming vote of 13-2, ordering 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
Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance
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
[S]ubmit a report to the Court on all measures taken to give effect to this Order, within one month as from the date of this Order.
All four measures are important. The order to keep open the Rafah crossing is striking for its specificity. The order to allow UN-mandated investigative bodies into Gaza could significantly enhance independent and impartial fact-finding. The reporting requirement ensures that Israel will remain accountable to the Court for its compliance or lack thereof.
The first measure is the most important. Its formulation is somewhat ambiguous, but the ambiguity makes no practical difference.
The order is most naturally read to mean that Israel must immediately halt
(i) its military offensive in the Rafah Governorate, and
(ii) 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.
This reading slightly deviates from the text by specifying the military offensive at issue and by ignoring the second comma.
Alternatively, one could read the order to mean that Israel must immediately halt
(i) its military offensive 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, and
(ii) 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.
This reading is somewhat awkward, since the same words (‘which many inflict …’) perform two different functions, first describing a specific action (‘its military offensive’) then defining a general category of actions (‘any other action’).
Finally, one could read the order to mean that Israel must immediately halt
(a) its military offensive in the Rafah Governorate to the extent that it may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part and
(b) 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.
This reading substantially rewrites the order, inserting words (“to the extent that it”) that it does not contain and qualifications where they do not seem to belong. Nevertheless, as we shall see, two judges prefer this reading.
On any of these readings, Israel may not continue its current military offensive in Rafah as currently planned. As a matter of fact, the Court specifically found that the current offensive exposes the civilian population to “immense risk” of mass death from starvation and disease. As a matter of law, the Court found a real and imminent risk of irreparable prejudice to rights under the Genocide Convention. These findings are equivalent to a finding that the current military offensive may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part. Therefore, the current offensive as currently planned and executed is prohibited under any reading. The current military offensive must immediately halt, and so must any other action that carries similar risks.
At the same time, Israel may carry out limited military operations to respond to specific attacks or to rescue hostages. It makes no practical difference whether we say that Israel must halt its current military offensive but may carry out distinct and limited military operations (the first reading) or may-continue-but-must-limit its current military offensive to avoid the “immense risk” it currently poses to group survival (the third reading). The result is the same.
The Separate Opinions
Three judges wrote declarations and two wrote dissenting opinions. These opinions raise many interesting legal issues, only some of which are discussed below.
Judge Tladi wrote that “[t]he Court has ordered Israel to ‘halt its military offensive in Rafah’. The reference to ‘offensive’ operations illustrates that legitimate defensive actions, within the strict confines of international law, to repel specific attacks, would be consistent with the Order of the Court. What would not be consistent is the continuation of the offensive military operation in Rafah, and elsewhere, whose consequences for the rights protected under the Convention on the Prevention and Punishment of Genocide has been devastating.” As noted above, this is the more natural reading of the Court’s order.
Judge Aurescu wrote that the principal order is “unclear as to whether the last part of it (starting with ‘which may inflict’) only refers to ‘any other action’ (which is not defined) or to both halting the Israeli military offensive and ‘any other action’. In my view, this measure needs to be interpreted [so] that it indicates as well the halt of the Israeli military offensive to the extent that it ‘may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.’” As noted above, this rewrites the Court’s order, inserting words (‘to the extent’) that it does not contain.
Judge Aurescu also wrote that the Court’s order “do[es] not affect in any way the legitimate right of Israel to undertake actions, which should be conducted in strict conformity with international law, including in a manner responding to the criteria of proportionality and necessity, to protect its civilian citizens and to free the hostages still held in the Rafah area by Hamas and other armed groups.” Assuming this passage refers to protecting Israeli civilians from specific attacks, and not from the long-term threat posed by Hamas and other armed groups, then there is no practical difference between Aurescu’s interpretation and Tladi’s.
Judge Nolte wrote that he “remain[s] unconvinced that the evidence presented to the Court provides plausible indications that the military operation undertaken by Israel as such is being pursued with genocidal intent…. The reason for today’s measure is, in my view, that Israel has not sufficiently demonstrated that it can ‘enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians’ without limiting its current military offensive in Rafah.” Judge Nolte noted “the repeated interruptions of humanitarian aid deliveries by private Israeli citizens, which the police and the military have not prevented,” as well as “continuing significant incendiary public speech in Israel, including by senior Israeli officials” including Israeli Minister of Finance Bezalel Smotrich and Minister of National Security Itamar Ben Gvir. Judge Nolte therefore found “a risk for access to humanitarian aid urgently needed to ensure the survival of the Palestinian people in Gaza.”
Judge Nolte wrote that “[t]he reason for today’s measure is, in my view, that Israel has not sufficiently demonstrated that it can ‘enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians’ without limiting its current military offensive in Rafah.” According to Judge Nolte, “I considered it justified that the Court specify that [its prior orders] limit the current military offensive in Rafah as far as it could endanger the rights of the Palestinian people under the Genocide Convention, notably their access to basic humanitarian needs. The Court’s Order does not address military operations outside Rafah and 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.” Again, whether we say that Israel must halt or limit its current offensive makes no practical difference. Either way, the current offensive cannot continue as currently planned, while limited military operations may be lawful.
Vice-President Sebutinde wrote a dissenting opinion setting out her understanding of the factual context and her reasons for voting against the new measures. Vice-President Sebutinde at times reads the Court’s orders narrowly to downplay them, at other times broadly to criticize them. She calls the measure “an overreach by the Court that has no link with South Africa’s plausible rights under the Genocide Convention” and that “implicitly orders Israel to disregard the safety and security of the more than 100 hostages still held by Hamas” then writes that “this measure does not entirely prohibit the Israeli military from operating in Rafah. Instead, it only operates to partially restrict Israel’s offensive in Rafah to the extent it implicates rights under the Genocide Convention.”
Finally, Judge ad hoc Barak wrote a dissenting opinion. Barak opens by attempting to portray a 13-2 vote to indicate a third set of provisional measures as a defeat for South Africa and a victory for Israel. According to Judge Barak, South Africa’s request was “rejected” and its “tactics failed” due to the “the specific, credible and up-to-date evidence provided by Israel, expertly and convincingly presented by its legal team during the hearings.” For anyone who reads the Court’s orders, or watched the oral proceedings, these passages are hard to take seriously.
More seriously, Judge Barak writes that “[t]he Court’s first measure is [] limited to offensive (and not defensive) military action in Rafah, and requires a halt only in so far as is necessary to protect the Palestinian group in Gaza from conditions of life that could bring about its physical destruction.” Barak goes on to write that “the measure is a qualified one, whichpreserves Israel’s right to prevent and repel threats and attacks by Hamas, defend itself and its citizens, and free the hostages.” Indeed, the Court’s order does not prohibit Israel from pursuing those aims in ways that do not risk mass death from bombardment, displacement, starvation, and disease. The Court’s order does not prohibit a hypothetical military operation that Israel might carry out in theory. Instead, the Court’s order prohibits the actual military offensive that Israel is carrying out in Rafah.