Minutes after the president of the International Court of Justice (ICJ), Nawaf Salam, ordered Israel in The Hague to immediately stop its military offensive in Rafah, in the south of Gaza, a huge cloud of black smoke rose in that area by a bombing by Israeli military aviation. Beyond the coincidence, the attack symbolizes the limits of the court. Its precautionary measures, like this one, are binding, but it lacks the force to enforce compliance, so the key now is what the international community will do about it. And, more specifically, the United Nations Security Council, where Israel’s main ally, the United States, has a veto that it has already used three times to stop a permanent ceasefire resolution.
A good example is the Russian invasion of Ukraine, the other war with important geostrategic consequences that is being fought in parallel. The same court ordered Russia – another of the five countries with a permanent seat on the Security Council – to immediately suspend its military operations. It was March 2022.
Israel’s initial reaction suggests that it will continue with the operation, but avoiding images of massive invasion and famine. And feeding the idea that it is complying with the precautionary measure, clinging to the fact that the ICJ refers to those actions that “may inflict living conditions on Gazans that may lead to their total or partial destruction,” that is, constituting genocide. “In short,” concluded Amit Segal, one of Israel’s leading political commentators, “the operation will continue in Rafah. And, within a month, another round in The Hague.”
It is the gap, which will depend on the intensity of the operations and the narrative that is imposed, to which the joint response given by the headquarters of the National Security General Staff and the Ministry of Foreign Affairs points: “Israel has not carried carry out and will not carry out military activity in the Rafah area that creates living conditions that could lead to the destruction of the Palestinian civilian population, in whole or in part.” The statement also talks about “reducing damage to the civilian population in Gaza to the extent possible” and continuing “efforts to allow the entry of humanitarian aid.”
Matan Gutman, legal expert and legal commentator for the newspaper Yediot Ahoronot, He pointed it out more crudely on the set of Channel 12 on national television: “What it means is [el fallo] “It is that as long as we convince our friends, the United States, the United Kingdom, Germany of this interpretation… in practice nothing happens.”
Although it lacks the coercive power to enforce emergency precautionary measures, the ICJ is still the highest judicial body of the UN. And Israel’s supporters can now find themselves in the position of deciding whether to side with their ally, even if it fails to comply with orders, or with the United Nations, which represents the pillar on which the international conflict resolution system is based. If Israel continues to reject the “world court,” in its colloquial meaning, the credibility of the UN may be called into question, because international public opinion will see that its governments do not support its decisions. The student demonstrations recorded in many countries in recent weeks are an example of a growing and visible unrest in this regard.
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This is what Balkees Jarrah, associate director of international justice at the American NGO Human Rights Watch, wanted to highlight. The court’s order “opens the possibility of relief” for Gazan civilians, “but only if governments use their influence, including arms embargoes and targeted sanctions, to pressure Israel to urgently comply with the measures,” he points out in a statement.
In Israel, it was almost taken for granted that the court would not limit itself this time to a generic compliance warning (as in January), nor to the humanitarian dimension. The question was whether he would ask to stop the offensive in Rafah or throughout Gaza. “As strange as it may sound,” the newspaper’s political commentators qualified this Friday, before the announcement. Yediot Aharonot Itamar Eichner and Zeev Avrahami, “there are those in Israel who would actually prefer [la exigencia] of a total ceasefire.” The reason: few doubt that the United States would have once again vetoed a foreseeable permanent ceasefire resolution at the UN to fulfill the mandate of the ICJ. That the precautionary measure is limited to Rafah, where Washington has made it clear that it does not want a major ground operation, increases the chances that it will abstain, allowing the resolution to go ahead, which does not favor the Netanyahu government, which promises to continue the war until “total victory.”
The court’s ruling notes that the measures taken by Israel to protect Gazans, and in particular those displaced in Rafah, are insufficient. Furthermore, the president read a passage saying that the judges had “not received evidence” that the Israeli government provided them with security and access to humanitarian conditions. The ICJ doubts that “the evacuation efforts and measures to which Israel claims to have committed to improve the safety of civilians” have been “sufficient to alleviate the immense risk” to which they are exposed. And he notes that “the immense risks associated with a military offensive in Rafah have begun to materialize and will intensify even further if the operation continues.”
The forced displacement of civilians is key in the fight for the narrative. The president of the court recalled that the offensive in Rafah has already caused the forced evacuation of at least 800,000 people, the vast majority of the 1.2 million estimated in the Rafah area and who arrived mainly from other parts of the Strip; either by direct order of the Israeli army, or by trying to flee from the bombings, which have not stopped throughout the Strip.
Israel – which does not recognize the jurisdiction of the court in this dispute – will instead present it as proof that the evacuation was possible and will prevent civilian deaths in Rafah. If the judges address the merits of the case, South Africa, which filed its lawsuit in December 2023, will have to prove the “acts of genocide” it has alleged. The court, in any case, now demands that Israel allow “allegations of genocide” to be investigated; the entry of investigators appointed by the UN; and preserve evidence.
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