Monday, May 27, 2024

By Daled Amos

In January, the International Court of Justice gave its first decision regarding the Gaza War. The Media headlines tended to declare something like this one (still) on the NPR website:

But did the ICJ really hand down a ruling that Israel was likely guilty of genocide?
Not according to Joan Donoghue, the President of the ICJ from September 13, 2010 till February 6, 2024:

So according to Donoghue:

[The ICJ] didn't decide that the claim of genocide was plausible. It did emphasize in the order that there was a risk of irreparable harm to the Palestinian right to be protected from genocide. But the shorthand that often appears which is that there is a plausible case of genocide isn't what the court decided.

Let the lawyers -- the real ones, not the ones who play them on social media -- break down the implications of that formulation.  But the fact remains that the ICJ did not find Israel guilty of genocide.

Last week, the ICJ handed down a second ruling, this one addressing Israel's military operation in Rafah.

Again, the media had a field day, with headlines like this one from The New York Times:
But again, the question is what did the ICJ actually rule?
The key issue is paragraph 2(a) of the operative clause, where the Court declared 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.
For all the fanfare in the media headlines, some argue -- including among the ICJ judges themselves -- that the ICJ in fact did not rule that Israel must stop its operations in Rafah: 

This raises a question: considering the ambiguity we saw in the ICJ's first decision about whether Israel's actions in Gaza amount to genocide and now in this second decision where there is ambiguity in the ruling whether Israel must stop what it is doing in Rafah -- why can't the ICJ speak in plain English?

After all, the ICJ was crystal clear when it gave a ruling about Russia's invasion of Ukraine. In an article about this lack of clarity, the group UK Lawyers For Israel pointed out that this current ambiguity

is further underlined by comparison with the unqualified Order made in the Ukraine/ Russia case on 16 March 2022, which directed:
“The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”.
That seems straightforward enough, and we had none of the disagreements over the intention of the ICJ that we see now.

So what is going on?

Juliette McIntyre, a lecturer in Law at the University of South Australia, offers a possible explanation. She writes that the equivocation of the ruling is not meant to help Israel. Quite the opposite:
the Court may have been driven by a desire to convince as many Judges as possible to vote in favour of the Order, at the cost of issuing a clearer and more straightforward directive. Quite possibly, the Court has deliberately adopted a phrasing which can be interpreted more than one way in order to get the decision across the line. [emphasis added]
The vagueness of the language was deliberately used to get as much of a consensus as possible among the judges so that a judgment could be made:
Israel can argue that it has complied with the Order if it continues military operations in a way which does not inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part. But equally, South Africa can argue that Israel has failed to comply with the Order if it continues its military operation in Rafah at all...

But this hardly qualifies as a decree of Solomonic proportions. This is a question of law, and not law of a theoretical nature either. It is not a question of inches as in other cases in which the ICJ has been called upon to rule:

this is not a maritime boundary delimitation where equidistance can be imposed in pursuit of impartiality. This Order is a demand, of Israel, to take certain concrete steps. It is unfair to Israel to be unclear in what is expected of it, and it is potentially ruinous for the people of Rafah should interpretation A be applied when interpretation B was intended.
In other words, because of the ICJ's insistence on consensus at all costs -- the ICJ has failed and everybody loses.

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Elder of Ziyon - حـكـيـم صـهـيـون

This blog may be a labor of love for me, but it takes a lot of effort, time and money. For over 19 years and 40,000 articles I have been providing accurate, original news that would have remained unnoticed. I've written hundreds of scoops and sometimes my reporting ends up making a real difference. I appreciate any donations you can give to keep this blog going.


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