The Order made by the International Court of Justice (ICJ) today has been misinterpreted in many media reports.

The ICJ did not make an Order requiring Israel to cease its military operation in Rafah unconditionally, as had been sought by South Africa. Instead, it ordered that:

“The State of Israel shall …. [i]mmediately 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.”

It is clear from the wording and punctuation that the phrase “which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part” qualifies both parts of the requirement that Israel must “halt its military offensive, and any other action the Rafah Governate”.

Moreover this qualification cannot be interpreted as a conclusion of the ICJ as to the effect of the existing operation, since it also qualifies “any other action” which refers to unspecified actions in relation to which the ICJ could not have reached any such conclusion. It can only be interpreted as meaning that the prohibition applies if the operation may have this effect.

This interpretation is confirmed by the concurring declarations of Judge Nolte and Judge Aurescu as well as the dissenting opinions of Vice-President Sebutinde and Judge Barak.

Judge Nolte said: “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. Thus, this measure does not concern other actions of Israel which do not give rise to such a risk.”

Judge Aurescu explained: “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 on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part’”.

Vice-President Sebutinde stated: “In my understanding, the objective of the Court is to order Israel to suspend its military offensive in Rafah only in so far as such suspension is necessary to prevent the bringing about of conditions of life that could bring about the destruction of the Palestinians in Gaza”.

Judge Barak commented: “Once again, South Africa has requested the Court to order the State of Israel to ‘cease its military operations in the Gaza Strip. . . and immediately, totally and unconditionally withdraw the Israeli army from the entirety of the Gaza Strip’.  Once again, South Africa’s request has been rejected by the Court. Instead, the first additional measure indicated by the Court …  requires Israel to halt its military offensive in the Rafah Governorate only in so far as is necessary to comply with Israel’s obligations under the Genocide Convention.”

The significance of the qualification in the Order of 24 May 2024 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”.

Israel considers that its military operation in Rafah does not inflict conditions of life that could bring about the physical destruction of Palestinians as a national, ethnic or racial group in Gaza in whole or in part. It will therefore continue the operation in compliance with the Order.

The Head of Israel’s National Security Council and the Spokesperson of its Ministry of Foreign Affairs have issued a joint statement which says:

“Israel has not and will not conduct military actions in the Rafah area which may inflict on the Palestinian civilian population in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

Today’s Order also required Israel to “[m]aintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance”.

This crossing is between the Gaza Strip and Egypt, not Israel. It is open on the Gaza Strip side, where Israel is in control, but Egypt has closed it on its side. Short of attacking the Egyptian guards and starting a war with Egypt, which surely cannot have been intended by the Court, Israel cannot do anything further.

The joint statement says that “Israel will continue to enable the Rafah crossing to remain open for the entry of humanitarian assistance from the Egyptian side of the border, and will prevent terror groups from controlling the passage.”

A further provision of the Order requires Israel to “[t]ake effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide”.

It is not clear whether Israel will agree to allow access by UN officials who have provided false information and shown massive anti-Israel bias. The UN Human Rights Council’s Special Rapporteur on the occupied Palestinian territories, Francesca Albanese, is currently under investigation by the UN for the lack of impartiality shown in her social media.

The final provision of the Order requires Israel to submit a report to the Court on all measures taken to give effect to this Order within one month. Israel has hitherto provided reports and information requested by the Court.

Jonathan Turner, UKLFI Chief Executive, said: “This is not the first time that UKLFI finds it necessary to correct misinterpretation of the ICJ’s Orders in this case. We urge the media to correct the current headlines urgently, especially as such mis-reporting has a terrible impact in promoting antisemitism”.

The original Order for provisional measures made by the ICJ in this case on 26 January 2024 was also misinterpreted in many media, which reported that the ICJ had found South Africa’s claim of genocide to be plausible. However, as UKLFI pointed out, the ICJ found that the Palestinians and South Africa had plausible rights under the Genocide Convention, not that there was a plausible case of genocide.

Judge Donoghue, President of the ICJ when that Order was made, subsequently confirmed that UKLFI’s interpretation was correct in a BBC interview, in which she said:

“the court’s test for deciding whether to impose measures uses the idea of plausibility — but the test is the plausibility of the rights that are asserted by the applicant, in this case South Africa. So the court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the court.

It then looked at the facts as well. But it did not decide — and this is something where I’m correcting what’s often said in the media — it didn’t decide that the claim of genocide was plausible.”