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ICJ: Israel must halt Rafah ops that might cause ‘physical destruction’ of Gazans

The United Nations high court decision is a "gift to the murderers and rapists of Hamas," human-rights lawyer Arsen Ostrovsky told JNS.

View of the International Court of Justice courtroom during the court's ruling on May 24, 2024 that Israel must cease military operations in Rafah. Credit: Bastiaan Musscher/U.N. Photo/ICJ-CIJ.
View of the International Court of Justice courtroom during the court's ruling on May 24, 2024 that Israel must cease military operations in Rafah. Credit: Bastiaan Musscher/U.N. Photo/ICJ-CIJ.

The International Court of Justice, the principal United Nations judicial arm located in the Hague, voted 13 to two on Friday to insist that the Jewish state “immediately halt its military offensive and any other action in the Rafah governorate.”

The U.N. high court, which was ruling on a case that South Africa brought against Israel, stated that the Jewish state must cease such operations in Rafah “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 court also ruled that Israel must keep the Rafah crossing open “for unhindered provision at scale of urgently needed basic services and humanitarian assistance,” and it must take “effective” measures to allow “unimpeded access to the Gaza Strip” to “any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.”

The ICJ also stated that Israel must file a report in a month on these matters to the court.

“The charges of genocide brought by South Africa against Israel at the International Court of Justice in the Hague are false, outrageous and morally repugnant,” stated the head of Israel’s National Security Council and the spokesperson for its Ministry of Foreign Affairs.

“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,” the two stated. “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.”

“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,” they added.

Anne Herzberg, legal adviser at NGO Monitor, told JNS that the court’s decision “is immoral, denies Israel its legal right of self-defense and plays into the hands of the Hamas terrorist organization, which is closely allied with the South African government.”

The U.N. court was clearly guided by politics, which aimed to “coincide with the indefensible actions” of the International Criminal Court prosecutor equating Israel and Hamas, rather than international law or human rights, according to Herzberg.

“The decision is based upon blatantly false information provided to the court by South Africa’s legal team and to advance the apparent objective of keeping Hamas in power in Gaza,” she said. “Given that there is no legal foundation, nor moral justification for this opinion, Israel should not, and I expect will not, abide by the ICJ’s decision.”

Arsen Ostrovsky, a human rights attorney and CEO of the International Legal Forum, told JNS that the ICJ’s decision “was another egregious perversion of justice on the path to an irrevocable breakdown of the international legal order, that was nothing more than a gift to the murderers and rapists of Hamas.”

ICJ Nawaf Salam
Nawaf Salam, judge and president of the International Court of Justice, during the court’s ruling that Israel must cease military operations in Rafah, the southernmost city in the Gaza Strip, on May 24, 2024. Credit: Bastiaan Musscher/U.N. Photo/ICJ-CIJ.

“No court or body in the world can deny Israel its inalienable right to pursue the destruction of Hamas and rescuing the remaining hostages, which formed hardly even afterthought in the court’s determination,” according to Ostrovsky, who is also a senior fellow at the Misgav Institute for National Security.

“Notwithstanding some of the obscenely biased observations of the court, which are quite frankly divorced from reality, there was ‘an out’ for Israel,” the attorney said. “In ruling that Israel must halt its military offensive in Rafah, the court added ‘which may inflict on the Palestinian group in Gaza conditions of life that may bring about its physical destruction, in whole or in part.'”

The phrase “which may” is critical, according to Ostrovsky.

“The court did not say Israel must halt entirely and unconditionally. Israel, therefore, would be within its rights to contend the proposed operation in Rafah does not inflict that which the court said should not, and therefore continue, perhaps with some modifications and further humanitarian allowance,” he said.

Israel ICJ
Members of the Israeli delegation at the International Court of Justice during the court’s ruling that Israel must cease military operations in Rafah, the southernmost city in the Gaza Strip, on May 24, 2024. Credit: Bastiaan Musscher/U.N. Photo/ICJ-CIJ.

Ronald S. Lauder, president of the World Jewish Congress, stated that the ICJ decision “will only prolong Hamas’s deadly reign over the people of Gaza.”

“We urge the international community to recognize Israel’s right to self-defense and to join us in calling for the immediate and unconditional release of all hostages held by Hamas,” Lauder said. “The lack of focus on this issue by global institutions to this point is deafening.”

Eugene Kontorovich, law professor and director of the Center for the Middle East and International Law at the Antonin Scalia Law School of George Mason University, wrote before the decision that it was funny that the ICJ’s “expected lawless demand that Israel stop defending itself” comes as “the civilian death toll in Gaza is, miraculously, 40% lower now then when they first heard the case and declined to issue such an order a few months ago.”

“After calling for an end to Israel’s war to recover the hostages taken by Hamas, ICJ judge says he finds it troubling that they have not been released by Hamas,” wrote Jonathan Schanzer, senior vice president at the Foundation for Defense of Democracies. “This whole thing is a sick joke.”

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