Thursday 30 May 2024

The International Court of Justice's ruling on Israel's invasion of Rafah has turned into a complicated legal argument. Here's why.

Extract from ABC News 

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For months, as they pleaded for help to stop the Israeli army killing of tens of thousands of civilians, Palestinians in Gaza have been asking one question: "Does the world not see us?"

They had hoped last week's ruling by the International Court of Justice (ICJ) on Israel's invasion of Rafah would be a turning point, ending the military encroachment into an area that was the designated "safe zone" for fleeing Gazans.

But since that ruling, Israel's invasion has pushed deeper into civilian areas of Rafah.

The death toll of women and children has soared again, after an internationally-condemned Israeli air strike on the Tel Al-Sultan neighbourhood.

The strike caused a fire in an area where thousands of people were taking shelter after many fled the eastern areas of Rafah several weeks ago.

Israel says it was targeting Hamas commanders and didn't intend to cause civilian casualties.

So is Israel flouting international law — as numerous countries claim — and if so, will there be any consequences?

The ruling on Israel that has been interpreted in different ways

The International Court of Justice ruled that Israel must "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".

Two men at a desk with the word "Israel" written on a sign
Israel's legal team argues that the IDF's actions in Rafah are not causing genocidal conditions. (Reuters: Piroschka van de Wouw)

Israeli scholars and judges have interpreted the ruling to mean its military actions can continue inside Rafah, so long as it's not committing genocide or genocidal acts, which Israel maintains its not.

Many other countries around the world — including Australia — have instead taken the ruling as a direct order for Israel to stop its ground invasion in Rafah and withdraw its forces from the ground there, without qualification or interpretations.

In delivering the ruling the ICJ president noted very clearly that Israel's military action inside Rafah already "entails a further risk of irreparable prejudice" to Palestinian lives, outlined under the genocide act.

This means the court found that Israel's current military offensive in Rafah is already creating a real and urgent risk of "genocidal conditions of life" — hence the new ruling to protect Palestinian civilians.

Numerous world leaders, human rights groups and scholars support the world court's position that what is happening inside Rafah is already causing irreparable harm and has to stop.

A man stands at a tent camp dand inspects a wall with holes in it.
The strike caused a fire in an area where thousands of people were taking shelter.(Reuters: Hatem Khaled)

And the European Union has already criticised the differing interpretations of the ruling and foreshadowed disastrous consequences for world order.

"Introducing caveats, objections or exceptions based on non-legal grounds damages the rule-based order, damages our values and will damage our international standing," the European Union's foreign policy chief Josep Borrell EU said.

"If one of the parties is not satisfied by the decision of the court, it can, of course, address a specific request for interpretation, but not disregard it."

What does Israel say the ruling means?

The main issue for Israel centres around whether the military must stop its operations in Rafah entirely, or only if it risks causing genocidal conditions — which Israel argues it is not.

"Israel has not and will not carry out military operations in the Rafah area that create living conditions that could cause the destruction of the Palestinian civilian population, in whole or in part," said National Security Adviser Tzachi Hanegbi.

Legal minds across the world are also arguing about the interpretation.

Palestinians look at burnt buildings and debris after an Israeli strike.
Palestinians look at the destruction after an Israeli strike where displaced people were staying in Rafah.  (AP: Jehad Alshrafi)

Member of the Institute of International Law in Europe Pierre d'Argent argues that Israel is within its legal rights to continue fighting inside Rafah.

He said that "compliance with the order may be brought by stopping all military action, but also conducting a less massive operation".

But Hungarian-American human rights lawyer and war crimes prosecutor Reed Brody disagreed, said the ruling was an unequivocal decision "that responds to the gravity of the situation in Gaza … ordering Israel to halt specific military operations."

Former ICJ staffer and international law expert Mike Becker also said that "there is no ambiguity in the court's order that Israel's current military offensive already creates … a real and urgent risk of 'genocidal conditions of life" — adding that Israel's continuation of the military offensive is "open defiance" of the ICJ order.

So what can be done?

Countries and rights groups across the world have expressed outrage over the continued Rafah military action.

Irish Foreign Minister Micheál Martin called the Rafah air strike "barbaric" and said Israel is undermining the UN "legal humanitarian system," by continuing its military action invasion there.

Australia's Foreign Minister Penny Wong also said after the Rafah strike that the "human suffering is unacceptable" and again told Israel "this cannot continue".

But who, as Palestinians have been asking for months and months, will stop Israel if it's not abiding by the international law, as is being alleged?

The court's ruling is binding on member states — Israel being one of them — but the court crucially doesn't have enforcement powers.

One option that is open to member states of the ICJ is to impose sanctions on Israel, which the EU is reportedly considering.

But that so far means little on the ground.

What does this mean for the people of Rafah?

As in other rulings made by the ICJ, it appears international law is only as powerful as its enforcement.

A man carries a sleeping baby
A man cradles his sleeping child as they evacuate from a part of Rafah that is about to be subject to a military operation. (Reuters: Hatem Khaled)
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Those who argue Israel isn't complying with the law say in this case, enforcement has been negligible.

Rights groups who support the ICJ ruling say the very fact that so many more innocent civilians have been killed in Rafah since it was issued shows the urgency and true intention of the court's ruling. They say that Israel is at risk of causing irreparable harm to Palestinians there.

While countries including Australia have declared they expect Israel to "comply with the international law", this case shines a light on the ambiguity of laws that are meant to protect civilians.

And that's what is at the heart of this issue — innocent Palestinian civilians, who didn't want a war, who don't want to die, and who want to be protected.

Israel says it's doing all it can to protect civilians in Gaza, including in Rafah.

But the death toll keeps rising.

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