Kerstin Bree Carlson joins JiC for this guest-post on the ICJ's decision on Israel's military operations in Rafah. Kerstin is associate professor at Roskilde University and The American University of Paris where she teaches topics in international law and sociology. Her current research examines terrorism trials in Denmark, France and Colombia.
Civilians flee Rafah, in Gaza, Palestine (Photo; AFP)
On 24 May 2024 the International Court of Justice (ICJ) made history and ordered a ceasefire in Rafah.
Unless it didn't.
By 13 votes to 2, the ICJ ruling 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."
So did the ICJ order a ceasefire? Or did the ICJ reiterate its earlier decisions, and therefore only warn Israel to take care how it fights? The answer comes down to how we understand the dependent clause regarding inflicting conditions of life, and to what it applies. Some argue the clause simply references the Genocide Convention, the treaty which gives the ICJ jurisdiction over the case. This makes it a repetitive allusion to binding law, a kind of dismissible "extra" language that lawyers call dicta and does not impact the ceasefire clause preceding it. Others argue it is a condition that imagines and permits military action that does not inflict genocidal conditions. If so, the court has not ordered a ceasefire, but instead merely sharpened earlier provisional measures reminding Israel of its responsibilities under international law.
If you're unsure what to think, you're in good company: the judges on the ICJ who made the ruling don't agree either.
What did the ICJ judges say?
The ruling was issued by 13 judges, with 2 judges dissenting. But the 13 ruling judges were not in complete agreement with the ruling's language. Three judges appended "declarations" to the ruling. These concurring opinions affirm the ruling but seek to provide distinct rationales and interpretations as to what was decided and why. They demonstrate stark disagreements regarding the meaning of what the judges put their names to.
Judge Dire Tladi of South Africa asserts that the ruling orders a cessation of Israeli's military offensive in Rafah. He notes that international law permits states to engage in self defense and that nothing in the order can be read to prevent Israel from undertaking "legitimate defensive actions… to repel specific attacks" (emphasis in the original). But he concludes: "Today, the Court has, in explicit terms, ordered the State of Israel to halt its offensive in Rafah." In Judge Tladi's view, Israel's military actions in Rafah are offensive and prohibited by the ruling.
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