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'Landmark, extraordinary, crucial': Legal scholars hail ICJ order against Israel Rafah offensive

May 24, 2024 at 8:31 pm

A view of the International Court of Justice (ICJ) logo amid a hearing at the International Court of Justice (ICJ) as part of hearing in the International Court of Justice (ICJ) on the situation in Gaza begins, as ICJ begins delivering order on additional provisional measures in Israel ‘genocide’ case on May 24, 2024 [Nikos Oikonomou/Anadolu Agency]

The International Court of Justice’s (ICJ) new ruling which orders Israel to cease its military operation in Rafah and allow “unhindered” aid into Gaza has been welcomed by legal scholars and experts.

Commenting on the World Court’s Friday rulings, legal expert, Mark Kersten, called it a “landmark decision”.

“Whatever doubt existed (or was sown by bad faith actors) it is absolutely clear that the people of Gaza are at risk of genocide, and that the way to stop the genocidal violence is a halt to hostilities,” Kersten, an assistant Professor of Criminology at the University of the Fraser Valley, Canada, told Anadolu.

Another academic, Gerhard Kemp, said that while the order is less in terms of what South Africa asked for, it is still “extraordinary and crucial”.

Like Kersten, he pointed out that the ICJ’s decision to suspend military assaults in Rafah shows that it is being done to protect Palestinians from a “potential act of genocide”.

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“It (the order) is not ‘micromanaging’ Israel’s military operations, but is an extraordinary intervention to halt a specific military operation to save the Palestinians from a potential act of genocide in Rafah,” said Kemp, a Professor of criminal law at the University of the West of England, Bristol.

However, the Professor feels that the decision is not unprecedented, as the ICJ had ordered a halt to military operations in the past, such as in the Russia-Ukraine conflict.

Observing the language of the majority of judges who were part of the rulings, Kemp cited the example of South African Judge, Dire Tladi, whose language he believes shows “exasperation”, pointing out that Tladi said it was difficult to find the right words to describe the dire situation in Rafah.

Regarding the implementation and enforcement of the decision, Kemp said that if Israel ignores it, he expects South Africa “to go back to the ICJ”.

“At some point, the UN Security Council will have to be involved for enforcement, but we know that Israel will probably be protected by the US,” he added.

‘Ruling leaves Israel and its supporters with very little wiggle room’

Renowned war crimes Prosecutor, Reed Brody, said the World Court has left Israel and its Western backers with “very little wiggle room”.

“This legally binding and very specific ruling leaves Israel and its supporters with a very little wiggle room,” he told Anadolu.

The ICJ’s directive not only demands an immediate cessation of military operations but also calls for the opening of the Rafah Crossing, as well as unhindered access for international fact-finding missions.

According to the Hungarian-American human rights lawyer, who had been involved in the prosecutions of Chile’s former President, Augusto Pinochet, and Chad’s former leader, Kosune Habre, the ICJ has “stepped up to the plate with a decision that responds to the escalating gravity of the situation”.

“It has crossed a threshold, for the first time, by ordering Israel to halt military operations as well as to open the Rafah Crossing and other crossings and allow access to international fact-finding missions,” said Brody.

READ: ‘Layers of chipping away at Israeli impunity being built here,’ says ex-Israel gov’t advisor on ICJ Rafah order

Speaking about the significance of ICC Prosecutor, Karim Khan’s application for arrest warrants for Israeli leaders earlier this week, he said: “Together with the ICC Prosecutor’s request for indictments of Prime Minister (Benjamin) Netanyahu and other top Israeli and Hamas officials, these actions are “a 1-2 legal punch to the conduct of Israel’s war in Gaza”.

To a question about the implementation of the order by Israel, Brody said that he expects UN member states to take action.

“I would expect states to call an immediate meeting of the Security Council to enforce this decision. “The pressure will then be on the United States to decide whether it will uphold international law as highest determined by the world’s judicial body,” he said.

‘Sharp rebuke to Israel’

Michael Becker, a former ICJ staffer and international law expert, told Anadolu: “This is not only a further recognition by the ICJ of the extraordinary humanitarian crisis in Gaza. It can also be viewed as a sharp rebuke to Israel.”

According to Becker, the ruling suggests that the World Court views Israel as incapable of carrying out this war in ways that avoid violating the Genocide Convention or respecting the fundamental rights of the Palestinian population of Gaza.

“Up until this point, the ICJ has declined to indicate provisional measures against Israel that expressly require a suspension of military operations. By doing so today, at least with respect to Rafah, the Court has indicated that it no longer sees any other means of protecting the rights of the Palestinian population in Gaza,” he said.

Becker also deemed it “extraordinary” that the ICJ has ordered Israel not to impede access to UN fact-finding bodies or other UN-mandated investigators to ensure that potentially relevant evidence in the case is preserved.

He noted that the Court had declined to grant similar measures in other cases.

Among the three new provisional measures listed in the new ICJ order, the first calls on Israel to “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.”

To a question about the wording of this specific measure, Becker explained that the ICJ “is linking the language of the order back to the Genocide Convention, since the ‘conditions of life’ language is one of the genocidal acts listed in Article II of the Convention.”

“This arguably provides some leeway for Israel to argue that its military operations do not have that effect, but I think it would be a disingenuous reading of the Court’s order,” he said.

READ: After World Court ruling, Palestinians want action not words

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.