Fewer than 48 hours after the International Court of Justice (ICJ) ordered Israel to halt its military offensive in Rafah, the Israeli military bombed the crowded southern town in the Gaza Strip 60 times. The shelling, which targeted makeshift tents for displaced Palestinians, incinerated or beheaded over 40 Palestinians.

According to many observers, the massive inferno was Israel’s response to the ICJ order, which in careful wording had avoided ordering a ceasefire in the entire Gaza Strip where over 35,000 Palestinians have been killed by Israel.

On 24 May, the court instructed Israel to immediately halt its military offensive in Rafah and any other action which, a caveat adds, “may inflict” on Palestinians in Gaza conditions of life that “could” bring about their physical destruction in whole or part.

The language, described by the Israeli press as “circuitous,” had legal experts divided over its meaning and whether it explicitly demanded a ceasefire in Rafah or not.

Throughout the course of its eight-month war on Gaza, Israel has displaced over one million Palestinians by force to the southernmost town of Rafah that shares a border with Egypt. Having failed to achieve any strategic victory or annihilate the Palestinian Islamic resistance movement Hamas from Gaza, Israeli Prime Minister Benjamin Netanyahu has repeatedly vowed to carry out a ground invasion of Rafah where he claims Hamas is entrenched.

Because the overcrowded border town now hosting half of Gaza’s displaced population was the only remaining area in the heavily bombed enclave to be considered relatively safe, it became a red line, according to world leaders, that Netanyahu was warned not to cross.

But having already committed a long list of war crimes and engaged in actions constituting genocide in Gaza, according to multiple UN legal and humanitarian entities, the ICJ was forced to attempt to halt the Israeli Occupation Forces (IOF) from committing worse atrocities in Rafah.

By 13 votes to two, the court also ordered Israel to open the Rafah Crossing to humanitarian assistance and urgently needed basic services and ensure unimpeded access to Gaza of any UN fact-finding missions mandated to investigate allegations of genocide. It gave Israel a one-month period to comply.

The court’s orders are mandatory and cannot be appealed, but it lacks the means to enforce them.

At the request of South Africa, the Hague-based court has been looking into alleged violations of the Genocide Convention by Israel, to which the country is party, since January. South Africa, which has spearheaded legal efforts to hold Israel accountable for genocide, known in international humanitarian law as “the crime of all crimes,” has repeatedly asked the ICJ to order an immediate ceasefire in Gaza and for Israel to lift its siege.

While the court found merit in South Africa’s case against Israel for alleged violations of the Genocide Convention, it did not adopt Pretoria’s request for restraining orders, known as provisional measures, to stop the war. Instead, it ordered measures to be taken by Israel to prevent and punish actions of genocide and to allow the entry of humanitarian assistance to Gaza.

As the IOF escalated its war in Gaza and the collective punishment of its population, included by enforced starvation, South Africa attempted to persuade the court to modify its provisional measures in February because of the worsening situation in the enclave. The court dismissed these efforts.

It was only when South Africa submitted its third request for additional provisional measures in March, citing starvation and the catastrophic situation in Gaza, that the ICJ, acknowledging that “famine is setting in” due to Israel’s aid restrictions, agreed that the situation in Gaza had indeed deteriorated and requiring that it modify its previous decisions.

However, once again the court fell short of ordering a ceasefire. Instead, it reaffirmed its earlier indications, while adding that Israel needed to ensure full cooperation with the UN to ensure humanitarian assistance and medical supplies entering the Strip in addition to increasing the number of land crossing points to Gaza.

Netanyahu’s office rejected the ICJ order and vowed to continue the Rafah offensive.

Israel had blocked water, electricity, fuel, and other supplies to Gaza since October 2023 in response to the Hamas operation of 7 October. The enclave was already under a land, sea, and air blockade by Israel, in place since 2017, and Israel already controlled the entry of provisions to Gaza and its population of 2.25 million Palestinians.

In its second set of provisional measures, the ICJ considered that preventing the delivery of urgently needed humanitarian assistance to the Palestinians in Gaza constituted a violation of the Genocide Convention.

Changing tactics, South Africa approached the court earlier this month with a fourth request for provisional measures ordering a halt to Israel’s military offensive in Rafah and withdrawing from the border town. Pretoria’s urgent request also called on the ICJ to order the entry of fact-finding missions by journalists to Gaza, blocked by Israel since October.

The court held public hearings less than a week later with both sides on 16 and 17 May. A week later, it announced its third set of urgent provisional measures that Israel would need to take, with the latter responding for the first time since January to much, but not the entirety, of South Africa’s requests.

The latest order came four days after International Criminal Court (ICC) Prosecutor Karim Khan said that his office had requested arrest warrants for both Netanyahu and Israeli Defence Minister Yoav Gallant and for Hamas leaders Yahya Sinwar, Mohamed Deif, and Ismail Haniyyeh.

When Al-Ahram Weekly went to press on Tuesday, US President Joe Biden had still not issued a response to the ICJ ruling or Israel’s latest massacre in Rafah.   

On Monday, Spanish Foreign Minister Jose Manuel Albares said that he would ask all EU member states to issue official backing to the ICJ and take steps to ensure Israel respects its decisions.

Pro-Israeli interpretations of the ICJ ruling have focused on the court’s “vague” language.

The question is whether the qualification – “which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part” – in the ICJ’s order for Israel to halt its Rafah offensive applies only to “any other action” or also to “military offensive,” the Israeli newspaper the Times of Israel said on 25 May.

“In other words, must Israel halt its entire Rafah military operation, or can it continue with that military operation provided it does not constitute a genocidal risk,” the paper’s Yuval Yoaz asked.

“The formulation and punctuation of this key, complex, three-clause sentence in the ruling seem to allow for both of these very different interpretations.”

The ICJ order has been compared to the 2022 provisional measures it issued against Russia’s invasion of Ukraine. Back then, the court ordered Russia to “immediately suspend the military operations” in the entire territory of Ukraine.

The clear, precise, and succinct wording did not make this ceasefire order conditional upon the possibility that Russia “may inflict” the physical destruction of the Ukrainians.

Heidi Matthews, a professor of international criminal law at Canada’s York University, said that the court clearly sided with South Africa in concluding that Tel Aviv has not fulfilled its obligations under international law.

The court’s 18-page order is an effort by the ICJ panel to state its factual findings of the deteriorating situation in Gaza since January, she said, and is meant to explain why the court has decided to issue new provisional measures ordering Israel to halt its military operation in Rafah despite the Israeli government’s “spin” on the meaning of the wording “because of the punctuation”.

“In the light of the [ICJ’s] factual determination, this is a very clear order from the court to the Israeli government that is must immediately halt any military activities within Rafah,” she said in a podcast with British media columnist Owen Jones.

However they are interpreted, the court’s provisional measures against Israel are part of unprecedented legal efforts to end Tel Aviv’s 67-year-old impunity in Palestine. They add to the recognition accorded by Spain, Ireland, and Norway of the State of Palestine on 28 May.

Aryeh Neier, a legal expert who escaped from Nazi Germany and was the co-founder of the international rights group Human Rights Watch, told the US network CNN that Israel is committing genocide in Gaza.

Neier, who was at the forefront of efforts to establish the international tribunals that eventually became the ICC and ICJ, said that Israel’s obstruction of humanitarian assistance to Gaza, causing famine, and its unprecedented shelling of the besieged enclave with 2,000-pound bombs amounted to genocide.

The statements are rare in the mainstream US media and were permitted by the weight of Neier’s long career in international law and background as a Holocaust survivor. Responding to Netanyahu’s accusations against both the ICC and ICJ as being “antisemitic,” Neier described the allegations as “absurd.”

This “degrades the concept of antisemitism,” he said. “Antisemitism doesn’t insulate the Israeli government from being held to the same standards that other governments have to be held to around the world.”

* A version of this article appears in print in the 30 May, 2024 edition of Al-Ahram Weekly