It Ain’t What You Say, It’s The Way That You Say It

By Paul M

Now that the International Court of Justice has issued its latest ruling on the Israel/Hamas war, world media spanning the spectrum from the BBC to Al Jazeera (yes, I know) are trumpeting that it has ordered Israel to stop fighting in Rafah. As readers here will know, the Israeli government interprets the ruling differently, saying that it only requires them not to do anything genocidal, which isn’t a problem because they haven’t and won’t.

Israel’s reading isn’t just the desperate and far-fetched pleading of a convicted felon, it’s supported by several of the Court’s own judges. Of the five who have added their own commentary to the ruling, four (one of whom is Israel’s own, temporary member, Aharon Barak) have said they interpret it the same way. The only one out of the other eleven to state that the ruling is an absolute ban is the South African judge, Dire Tladi, who has no more of a claim to impartiality than Barak does.

All of this is the result of the Court’s strangely Delphic pronouncement. The crucial part is a single, one-sentence paragraph in the Conclusions:

50. The Court considers that, in conformity with its obligations under the Genocide Convention, Israel must 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.

But why is it so opaque? A clearer statement would also have been easier to draft and they could have simply said that Israel must stop. Had they even chosen merely to leave out one or other of the two commas, the paragraph would say what the BBC claims it does. But they didn’t.

The Times of Israel has an interesting analysis of the decision in which the author points out that it’s not unusual for judges to finesse words to produce a document that all of them, or as many as possible, can sign on to. I think that’s probably right in this case too, but I think there’s also something else.

I don’t believe the ICJ actually could have ordered Israel to stop, without either producing new, definitive evidence of genocide—which, if they had it, they would have presented (and been both duty-bound and happy to do so)—or prejudicing their own, ongoing investigation into exactly that question. The Court has no powers to simply order fighting to cease, let alone for one side to surrender, in the absence of war crimes. The whole premise of the laws of armed conflict, after all, is that war is fixture of the human condition, can’t be effectively banished and is indeed sometimes justified. All the law aims to do is tame the worst excesses. I’m happy to admit that international law is not my strongest suit, but I don’t think they can say “You must stop because you could commit genocide” either. To whom does that not apply? In view of that, the Israeli government’s (and Ghanaian, German, Romanian and Israeli judges’) interpretation has to be the correct one: If Israel’s not committing genocide, it’s free to fight on.

The question still remains of why Paragraph 50 is so ambiguous. Why not simply say what I just did, in more impressive legal language? In fact, you’d think clarity on that of all points, the core issue before them, would have been imperative if their whole concern was for the protection of innocents. Were they not capable of better prose? Clearly they are; the rest of their ruling may be turgid, but it’s clear enough. So then it’s obscure by choice. Why? If there’s an alternative explanation to this, I’m not seeing it: Too many of the judges were not willing to say outright “Israel can conduct its war in Rafah if it’s sufficiently careful.” The corollary to which is that they wanted to say what they knew they could not: “Israel must stop fighting.” Whatever else they are, the judges are not naive. They can’t not have known that Israel’s enemies would leap on their peculiar formulation and present it as a clear command to Israel. Whether out of tender concern for Palestinian innocents or animus toward Israel, Their Excellencies get to have their cake and eat it: Israel will be pilloried for flouting the court’s ruling and pressured to halt, but their own hands remain (relatively) clean.

International humanitarian law, never particularly robust, is tottering. It will finally be tested to destruction when one of the important democratic nations finds itself in a major conflict and under legal attack in the same ways that are being tried out on Israel. Then those important nations will focus on the threat they’d rather ignore now and one of two things will happen. Either they will start to insist that the laws of war work the way their framers intended, with the protections extending only to parties that make the reciprocal commitment, or the whole edifice will simply collapse and be swept away. The results of the two options won’t look much different from each other except that in the first, the Important Democracy will try to retain the moral high ground. It will stand a better chance if the precedent hasn’t already been set, and if it doesn’t look like (and isn’t) a hypocrite.