International Court of Justice
International Court of JusticeReuters

Following the International Court of Justice's (ICJ) ruling on Friday ordering 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," there is some debate among legal scholars over what precisely this order means.

Professor Stefan Talmon, Director at the Institute of Public International Law, University of Bonn, and Supernumerary Fellow of St. Anne's College, Oxford, stated that the Court "did NOT say that Israel must immediately halt its military operation in Rafah."

He stated that the addition of the words "which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part" limit the application of the order and permit military action that does not bringing about such conditions, which Israel does not have intention to commit in the first place.

"Thus, Israel was not ordered to halt all military operations but only military operations that would violate its obligations under the Genocide Convention," Talmon said.

He noted that the ICJ's order that Russia must halt its military operations in Ukraine following its invasion in 2022 did not contain such a clause and was therefore applicable to all of Russia's military actions.

Four of the judges who took part in the ICJ's deliberations on its order agreed with Talmon's analysis.

Former Israeli Supreme Court Justice Aharon Barak, who has represented Israel at the ICJ in the case South Africa brought against the Jewish State, wrote, "This measure requires Israel to halt its military offensive in the Rafah Governate only in so far as is necessary to comply with Israel's obligations under the genocide convention."

Barak added, "Israel is not prevented from carrying out its military operation in the Rafah Governate as long as it fulfills its obligations under the genocide convention. As a result, 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."

Judge Georg Nolte of Germany wrote that “The measure obliging Israel to halt the current military offensive in Rafah is conditioned by the need to prevent ‘conditions of life that could bring about [the] physical destruction in whole or in part’ of the Palestinian group in Gaza.”

Romanian Judge Bogdan Aurescu wrote, "In my view, this measure needs to be interpreted that it indicates as well the halt of the Israeli military offensive to the extent that it 'may inflict n the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.'"

ICJ Vice President Julia Sebutinde of Uganda wrote, "This measure does not entirely prohibit the Israeli military from operating in Rafah. Instead, it only operates to partially restrict Israel's offensive in Rafah to the extent it implicates rights under the genocide convention."

Judge Sebutinde cautioned against misunderstanding the court's order as "mandating a unilateral ceasefire in Rafah" and "restricting Israel's ability to pursue its legitimate military objections, while leaving its enemies, including Hamas, free to attack without Israel being able to respond."

"I reiterate that Israel has the right to defend itself against its enemies, including Hamas, and to continue efforts to rescue its missing hostages. These rights are not incompatible with its obligations under the genocide convention," Judge Sebutinde concluded.

The Israeli government is also interpreting the ICJ order in this manner so that the military operation in Rafah can continue while obeying the order.

The Head of the National Security Council, Tzachi Hanegbi, and the Spokesperson of the Ministry of Foreign Affairs, Oren Marmorstein, released a joint statement on Friday saying, “Israel will continue its efforts to enable humanitarian assistance and will act, in full compliance with the law, to reduce as much as possible harm caused to the civilian population in Gaza.”

Yesterday (Saturday), Hanegbi told Channel 12 News, “What they are asking us, is not to commit genocide in Rafah. We did not commit genocide and we will not commit genocide.”