In the decision, read out by the President of the International Court of Justice Nawaf Salam, the operative directive on the Rafah issue states that Israel will, “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.”
The question is whether the qualification – “which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part” – applies only to “any other action,” or also to “military offensive.”
In other words, must Israel halt its entire Rafah military operation, or can it continue with that military operation provided it does not constitute a genocidal risk? The formulation and punctuation of this key, complex, three-clause sentence in the ruling seem to allow for both of these — very different — interpretations.
This order was supported by 13 judges against two, but the full decision did not offer clarity on what the order actually means. Whatever their reasons, the judges chose not to formulate a single, short, non-ambiguous sentence stating precisely what Israel was being required to do.
Most of the headlines in Israel and around the world proclaimed that the court had ordered Israel to immediately stop its military operation in Rafah. Ongoing coverage since then has largely maintained this definitive interpretation.
But after the court published the minority opinion documents – by Justice Barak and the court vice president, Julia Sebutinde of Uganda – along with the opinions written by three of the majority judges, it became clear that four of the five judges who addressed this issue consider that Israel is allowed to continue its military action in Rafah, as long as this action does not put the Palestinian population at risk of annihilation, either in full or in part.
This is not the first time in history that judges whose opinions differ try to find a form of compromise that everyone can agree on. Such compromises allow as many judges on the bench to unite around an agreed-upon bottom line.
But in the present case, an unacceptable situation was created, in which the compromise brought about such a vague text that each side is now reading it as it wishes.
Shortly after the announcement of the decision, Prime Minister Benjamin Netanyahu convened a conference call with some of the senior ministers in his government, as well as legal professionals headed by Attorney General Gali Baharav-Miara.
It seems that in this conversation, the complex nature of the ICJ order was internalized, since later in the evening, the head of Israel’s National Security Council and the Foreign Ministry published a joint statement, in which they echoed the court’s own wording: “Israel did not and will not conduct military activity in the Rafah area that creates conditions of life that could bring about the physical destruction of the Palestinian civilians, in whole or in part.”