ICJ Orders Israel halt Rafah operations: UNSC Must Act, with International Law at a crossroads

London, 24th May: The International Court of Justice (ICJ) has this afternoon ruled that Israel must immediately halt its military operations in Rafah, along with issuing additional provisional measures including taking steps to preserve evidence, enabling unimpeded access to any investigatory missions, and opening and keeping-open the humanitarian aid crossings into Gaza.

The ruling was issued in response to South Africa’s application that the court indicate further provisional measures to order a halt to Israel’s military offensive in Gaza, particularly in relation to Rafah. South Africa’s application noted that a failure to order such a halt would mean that ‘the possibility of rebuilding a viable Palestinian society in Gaza will be destroyed’.

The Court ruled that the situation can be characterised as having changed since its previous orders, justifying the use of Article 76 powers to modify its previously-issued measures. Having agreed that “Israel has not sufficiently addressed or dispelled the concerns raised by its operation in Rafah”, and that the real and imminent risk of irreparable prejudice being caused against Palestinians may occur before the Court is able to give its final ruling in South Africa v Israel, the ICJ has adopted its most explicit line against Israel’s Gaza operations yet.

Judge Nawaf Salem, President of the Court, stated that “having considered the terms of the provisional measures requested by South Africa. In conformity with obligations under the genocide convention, Israel must immediately halt its military operations in Rafah”.

It must be noted that Israel has failed to adhere to most provisional measures already ordered by the Court. On the 26th January, the ICJ ordered that Israel prevent the commission of acts including “a) killing of members of the group, b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, as well as to prevent acts intended to prevent births. It is impossible to establish a complete death toll in Gaza given destruction of healthcare and monitoring capabilities, but the Ministry of Health’s reports on confirmed casualties suggest at least 10,000 Palestinians have been killed in Gaza since the 26th January, and 36,000 have been killed since October.

The Court also ordered Israel to take measures to enable provision of urgently needed basic services and humanitarian assistance. Israel’s evident failure to do so led to the issuing of additional provisional measures by the ICJ on the 28th March. This ruling called on Israel to deliver humanitarian aid and basic services, including through co-operation with the United Nations to increase the capacity and number of land crossings for aid. And yet, the United Nations say over one million people in Gaza face catastrophic levels of hunger, while food aid is ‘piled up’ outside border crossings forced closed by Israeli military actions. The ICJ’s ruling today noted that the situation in Gaza has deteriorated even further since the March order – now fit to be characterised as ‘disastrous’.

While its orders are legally binding, the International Court of Justice (“ICJ”) has the power only to monitor the implementation of provisional measures in accordance with Article 78 of its rules, by requesting that parties provide information on “any matter connected with the implementation of any provisional measures it has indicated”.

Notably, the ability to actually enforce such orders lies in the hands of the United Nations Security Council (“UNSC”), which has thus far failed to invoke its UN Charter Article 94(2) powers to take coercive action, including military action, to enforce a judgement of the ICJ. Given Israel’s blatant disregard for the Court’s authority, emblematic of its increasing willingness to isolate itself on the world’s stage, UNSC member states must recognise what is at stake by their continued inaction in the face of Israel’s non-adherence.

ICJP’s Senior Legal Officer Dania Abul Haj has stated:

“It is not hyperbole to say that international law stands today at a crossroads. Israel has demonstrated its total disregard for the World Court’s orders, whilst Western leaders have reacted with everything from dismissal to disdain.

The Global North now has a simple choice. It can stand with the tools that it created for the pursuit of global justice and accountability, or it can stand with Israel – viewed increasingly as a pariah by the international community, intent on dragging its allies down with it. How the US, UK, and France relate this ruling to their UN Security Council responsibilities will shape the role of not just the ICJ, but of the entire international rules-based order, for decades to come.”

Notes to Editors:

  1. The International Centre of Justice for Palestinians is an independent organisation of lawyers, politicians and academics who support the rights of Palestinians and aim to protect their rights through the law.
  2. For more information, or to arrange an interview with a spokesperson, please contact the ICJP news desk at [email protected]
  3. The International Court of Justice indicates additional provisional measures, 24th May 2024, will be uploaded soon to the ICJ news portal
  4. The International Court of Justice indicates additional provisional measures, 28th March 2024
  5. The International Court of Justice issues a ruling in South Africa v Israel, including the issuing of provisional measures, 26th January 2024
  6. The Guardian, 23rd May 2024, ‘ Humanitarian operations near collapse in Gaza, says World Food Programme’
  7. Agence France-Presse, 23rd May 2024, ‘Health Ministry in Hamas-run Gaza Says War Death Toll at 35,800’, in Barron’s