ICJ cannot prosecute path to peace
Don’t expect the suffering and death in Gaza to end any time soon, despite a highly publicized ruling from the International Court of Justice that many interpretated as ordering Israel to halt its military operation in Rafah.
Late Sunday, there was more tragedy in Rafah when an Israeli airstrike targeting two Hamas terrorist leaders reportedly killed dozens of civilians.
Israeli Prime Minister Benjamin Netanyahu acknowledged the “tragic mistake” and ordered an investigation into the civilian deaths.
It prompted calls for Israel to abide by the ICJ ruling and stop its military operation.
Josep Borrell, who heads the group of European Union foreign ministers, said, “Unhappily, what we have seen in the immediate hours, is that Israel continues the military action that it has been asked to stop.”
But that’s not what the court actually ruled.
The ruling from the ICJ was more nuanced and conditional and has even been called ambiguous. To get a full picture of what the court did, and didn’t do, it’s important to look at some of the conditions the court mentioned, but also to read the dissenting judge’s opinion (which is always illuminating since it usually addresses other thorny issues and gives a different perspective.)
Further, Israel was allowed to “add” a judge to the ICJ bench and it chose a former president of the Israeli Supreme Court. The judge, Aharon Barak, sided with Israel, but he still had some piercing insights that deeply wounds the case brought against Israel by South Africa, while also undermining the ICJ reasoning.
Not surprisingly, the plight of the Palestinians was forefront of many judges’ minds. “There are no more words to describe the horrors in Gaza,” wrote Dire Tladi, a South African judge. “Almost daily we are confronted with gut-wrenching accounts of victims and survivors and images of unimaginable suffering.”
His words, after Sunday’s tragic events, were prophetic.
But despite what many news outlets reported over the weekend, the United Nations top court did not order Israel to immediately halt its military operations in Rafah.
The ICJ did order Israel to “immediately halt its military offensive” in Rafah, but the ruling is conditional in that it is linked to Israel complying with “its obligations under the Genocide Convention.”
However, Israel is complying with the Genocide Convention.
As a result, wrote Barak, “the measure is a qualified one, which preserves Israel’s right to prevent and repel threats and attacks by Hamas, defend itself and its citizens, and free the hostages.”
Dissenting judge Julia Sebutinde wrote, “Regrettably, the wording of the Court’s directive ... is susceptible to ambiguity and could be misunderstood or misconstrued as ordering an indefinite, unilateral ceasefire, thereby exemplifying an untenable overreach on the part of the Court.”
A major issue for the court was “plausible intent” under the Genocide Convention.
For Barak this was a “fatal flaw” in South Africa’s case since there was “no show of intent whatsoever.” He added, “Why would a State that has the intention to destroy a group provide tents, humanitarian aid and field hospitals? Why would they issue warnings and build humanitarian zones?”
Getting aid into Gaza and relieving humanitarian suffering in Rafah was a prime motivator for the ICJ. But as Sebutinde pointed out, since another court ruling in March, aid into Gaza had increased.
“As a result of these increased efforts, thousands of food trucks have entered Gaza; multiple large bakeries have reopened; greater amounts of animal fodder have been able to enter the Strip; water pipelines have been repaired and water pumps supplied with fuel; millions of litres of fuel have been able to enter Gaza; and clothing, hygiene and sanitation supplies have been supplied to Gazan civilians.”
In its ruling, the ICJ ordered Israel to “maintain open the Rafah crossing” for that humanitarian aid to enter.
But the ruling ignores the fact that the crossing is controlled by Israel and Egypt.
“Egypt, which shares a border with Gaza and controls part of both the Rafah and Kerem Shalom crossing facilities, plays a key role in facilitating aid delivery through the Rafah crossing,” wrote Sebutinde. “Without Egypt’s co-operation, Israel alone cannot ‘maintain open the Rafah crossing’ which would render the Court’s current order, which is directed at Israel but not Egypt, impracticable.”
Sebutinde also pointed out that Israel had every right to try to rescue hostages.
“It is plausible that additional hostages in captivity remain in the area, which is why Israel has declared its intention to locate and return them, dead or alive, to their families. This is a right that the Court cannot deny Israel or the hostages.”
It is obvious that the path to peace in the Israeli-hamas war can never be through the ICJ.
For one, South Africa’s “prosecution” of Israel is too one-sided. The threat posed by Hamas and the plight of the hostages were not mentioned once by South Africa in its written or oral arguments, said Barak.
Secondly, the ICJ’S procedures were biased against Israel, said Sebutinde.
An unjust case and an unfair trial is not the basis for any kind of lasting settlement.
How then to end such horrors as were seen on Sunday?
It was left to Barak to highlight an overwhelming and uncomfortable truth.
“I am not oblivious to the increasing suffering in Gaza,” he wrote, but added, “The key to ending this war lies in the hands of Hamas. Hamas has started the war and can finish it by releasing the hostages and by fully respecting the security of the State of Israel and its citizens.”
But Hamas doesn’t care, which is why the suffering won’t end any time soon.
ISRAEL HAD EVERY RIGHT TO TRY TO RESCUE HOSTAGES.