Why International Court of Justice ruling is unlikely to stop Israel’s Rafah invasion

By Eric Tlozec, ABC Middle East correspondent in Istanbul

Analysis – Within minutes of the International Court of Justice (ICJ) ordering Israel to halt its assault on Rafah, Israel had bombed the city again.

Even before the ICJ decision, senior figures had suggested Israel would not comply.

“No power on Earth will stop Israel from protecting its citizens and going after Hamas in Gaza,” government spokesman Avi Hyman said one day before.

It means Israel is likely to break a direct order from the ICJ by continuing its offensive in the southern Gazan city.

The order is binding but the court does not have enforcement powers.

The ICJ is yet to rule on whether Israel’s actions in Gaza constitute genocide, but the order is a strong signal the ICJ believes Israel is not complying with its obligations to prevent “irreparable harm” to Palestinians.

The ICJ is the UN’s highest court and all member states are expected to comply with its rulings.

Its new orders add to the growing international pressure on Israel to scale back its invasion.

If Israel does not comply, questions will arise about whether arms transfers, primarily by the US and Germany, can be made to a state that is continuing to breach an ICJ order.

These orders also mark a notable change from the court’s previous decisions in January and March, where it essentially set out Israel’s responsibilities under the Genocide Convention.

Then, it said Israel’s military needed to refrain from killing, causing serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, and imposing measures intended to prevent births within the group.

It also has to provide unhindered access, at scale, of aid.

Since 7 May, when Israel seized the Rafah border crossing, the main entry route for fuel and cooking gas, that crossing has remained closed.

Israel blames Egypt for the closure continuing, but Egypt says it is Israel’s ongoing military operations that are preventing the entry of aid.

Now, the ICJ has specifically demanded that Israel ensure the crossing is open.

Displaced Palestinians walk along a devastated street in Khan Yunis in the southern Gaza Strip on May 24, 2024, as conflict between Israel and Hamas militants continues.

Sanctions for non-compliance unlikely

In ordering Israel to halt its Rafah offensive, this is also the first time the court has imposed specific restrictions on how Israel conducts its military campaign in Gaza.

Israel’s leaders have previously flagged the intention to continue with the Rafah assault despite its humanitarian consequences and warnings from key allies.

There would be no immediate consequences if Israel was to ignore the orders, but other states could then refer the matter to the UN Security Council, which would be expected to pass a resolution reflecting the court’s decision.

The United States would then – contentiously – have to veto that resolution if it wanted to protect Israel from its implications.

Israel is already in breach of multiple security council resolutions, which it says are non-binding, including on settlement building in the West Bank (UNSC 446), annexation of the Golan Heights (UNSC 497) and international inspection of its (presumed) nuclear facilities (UNSC 487).

The Security Council already passed a resolution in March demanding an immediate ceasefire and the release of hostages, which neither Israel nor Hamas complied with.

There is some discussion on whether states could sanction Israel for non-compliance, but that is unlikely from its main allies in the United States, Germany and the United Kingdom, making any such move symbolic rather than consequential.

Ultimately, the court’s orders set further criteria against which Israel will be judged when the war in Gaza ends and the conduct of Israel and Palestinian militant groups is independently investigated.

Its demand for unhindered access for investigators suggests the ICJ believes breaches of international law are being committed and need to be documented.

Israel is pushing further into Rafah despite the knowledge that seven months of bombardment and ground invasion, with their accompanying loss of life and widespread destruction, have not achieved the goals of rescuing hostages or destroying Hamas.

There has previously been overwhelming public support in Israel for continuing the invasion, although many Israelis want a hostage deal to be the priority.

The Israeli government has maintained it has no option but to continue the broad military campaign, but these orders from the ICJ now add another layer to the international admonishment of Israel for the conduct of that campaign and intensify Israel’s international isolation.

The key question is whether anyone in the current Israeli government cares and whether any of the powerful international players will take action.


According to the news on Radio New Zealand

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