ICC Orders Israel to Halt Rafah Offensive

The UN body cites violation of the Genocide Convention.

NYT (“U.N. Court Orders Israel to Halt Rafah Offensive“):

The International Court of Justice on Friday ruled that Israel must immediately halt its military offensive in the southern Gaza city of Rafah, dealing another blow to the country as it faces increasing international isolation.

The court has no means of enforcing its orders, and Israel said the language of the ruling left some room for interpretation. Hard-line politicians in Israel immediately vowed that Israel would not comply.

[…]

“The court considers that in conformity with 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,” the court’s president, Nawaf Salam, said in reading the ruling.

[…]

The court emphasized the need for “the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance,” including maintaining open land crossings and, in particular, the Rafah crossing, which Israel seized more than two weeks ago. It ordered Israel to “immediately take all effective measures to ensure and facilitate the unimpeded access” of United Nations investigators into Gaza. The judges also ordered Israel to submit a report on the measures it had taken to implement the decision within a month.

[…]

In a statement, the Israeli government said its military “has not and will not” take actions that would lead to the partial or complete destruction of the civilian population of Rafah. In effect, it said that the court’s decision has no bearing on Israel’s offensive because the military is not committing the prohibited acts.

The behavior of the ICJ* here baffle me. While there is a strong argument to be made that Israel’s Rafah offensive will lead to the deaths of noncombatants disproportionate to the military advantage gained (a determination next to impossible to render ex-ante), the notion that it constitutes “genocide” is simply bizarre.

Alas, the loose definition of genocide used in international law, “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” is problematic. Wars, by their very nature, involve killing and, as they have evolved from set-piece battles between troop formations into whole-of-nation fights, collateral damage to civilian populations becomes inevitable. So, any war is bound to destroy “part” of the group.

The UN Office on Genocide Prevention breaks this down further:

The popular understanding of what constitutes genocide tends to be broader than the content of the norm under international law. Article II of the Genocide Convention contains a narrow definition of the crime of genocide, which includes two main elements:

  1. A mental element: the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”; and
  2. A physical element, which includes the following five acts, enumerated exhaustively:
    • Killing members of the group
    • Causing serious bodily or mental harm to members of the group
    • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
    • Imposing measures intended to prevent births within the group
    • Forcibly transferring children of the group to another group

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.

Importantly, the victims of genocide are deliberately targeted – not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”

So, obviously, Israel has “kill[ed]” and “caused serious bodily or mental harm” to “members of the group.” But the target is Hamas, a political entity, not the Palestinian people as a whole.

The ICC is hanging its hat on “Deliberately inflicting on the group conditions of life calculated to bring about [the group’s] physical destruction in whole or in part.” Aside from some unfortunate early statements by Israeli officials in the direct aftermath of the October 7 attack with unclear antecedents, there is simply no evidence of intent.

Again, it’s possible that a post facto examination of the campaign will determine that war crimes were committed in Rafah. But disproportionality is a very different offense than genocide.

___________________

*The original version of the post mistakenly referred to the ICC, the International Criminal Court, which has made separate rulings against Israel.

FILED UNDER: Law and the Courts, Middle East, World Politics, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Stormy Dragon says:

    But the target is Hamas, a political entity, not the Palestinian people as a whole.

    Except we have numerous quotes from senior Israeli officials indicating the target is the Palestinian people as a whole. Your continuing refusal to acknowledge these and instead insist on an maximally innocent portrayal of the Netanyahu administration’s actions is becoming inexplicable

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  2. Stormy Dragon says:

    Aside from some unfortunate early statements by Israeli officials in the direct aftermath of the October 7 attack with unclear antecedents

    “But other than that, how was the play Mrs. Lincoln?”

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  3. drj says:

    The ruling you cite was made the International Court of Justice (ICJ), not the International Criminal Court (ICC).

    The ICJ is the principal judicial body of the UN and is mainly concerned with state responsibility. The ICC is based on a separate international treaty (the Rome Statute) and is concerned with individual responsibility.

    Apart from that, I don’t think it is particularly credible that two different international courts and various highly respected legal experts are somehow all blatantly mistaken in their application of international law to Israel’s actions.

    Maybe it’s time to revisit some assumptions?

    ETA: To clarify:

    The ICJ ruled back in January that there are sufficient grounds to take seriously South Africa’s compliant that Israel is committing genocide in Gaza. This recent order is the ICJ saying to Israel: “You’re getting (at the very least) so close to genocide that you must stop now.”

    The prosecutor of the ICC recently applied for arrest warrants against Netanyahu and Sinwar. The ICC will rule on that request in the next couple of months.

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  4. Michael Reynolds says:

    @Stormy Dragon:
    Riiiight. The same way when a Senator mouths off that’s official US government policy. How many times has some American Congressperson, Senator or even cabinet member said something insane about, for example, wiping all the Commies or Muslims or Mexicans off the map? Did we wipe any or all of those people off the map? No? Huh.

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  5. Michael Reynolds says:

    35,857 people dead in Gaza. Over the course of 230 days is 156 deaths per day. UNICEF says ~20,000 babies have been born in Gaza in the same time period.

    Israelis are not really very good at this genocide thing, are they?

    You know who was good at genocide? At the high point of the Holocaust 14,000 Jews were killed every day.

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  6. drj says:

    @Michael Reynolds:

    Israelis are not really very good at this genocide thing, are they?

    Don’t be obtuse. The UN has collectively as a body decided that actions falling short of the Holocaust should also be defined as genocide.

    In fact, Israel ratified the resulting Convention on the Prevention and Punishment of the Crime of Genocide (which contains this less far-reaching definition) on August 17, 1949.

    They explicitly signed up to not do the thing that they are now doing.

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  7. James Joyner says:

    @Stormy Dragon: The early references to “animals” and such were unfortunate. But it was clearly referring to the Hamas terrorists who massacred, raped, mutilated, and kidnapped innocent Israelis rather than to the Palestinian people as a whole. I do think the Israeli government has less regard for innocent Palestinian life than for innocent Israeli life. But that’s a very different thing than an intent to commit genocide.

    @drj: Thanks for the correction. Because the ICC has been anti-Israel throughout the conflict, I conflated the two.

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  8. JKB says:

    @James Joyner: But it was clearly referring to the Hamas terrorists who massacred, raped, mutilated, and kidnapped innocent Israelis rather than to the Palestinian people as a whole.

    Oh, I think you could throw in the quite a number of Palestinian “civilians” who entered Israel on October 7th and took hostages back into Gaza to sell to Hamas. They are likely to have been close to Hamas since then and hopefully make up a large percentage of the “civilians” killed.

    In any case, Hamas has the stated intent to kill Jews and is the duly elected government of Gaza, not just some political group. And on October 7th, Hamas proved that being politically aligned toward Palestinians would not save an Israeli from slaughter.

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  9. Stormy Dragon says:

    @James Joyner:

    It was not just an “early reaction”. Just last week the Minister of Nationsl Security appeared at a settler rally calling for all Palestinians to be forced out of Gaza so that it can be annexed and settle.

    Of course, you’ve been told about similar instances numerous times already, so I’m forced to wonder why you persist in acting like you’re unaware of it.

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  10. drj says:

    @James Joyner:

    But that’s a very different thing than an intent to commit genocide.

    Perhaps you should take a look at South Africa’s complaint against Israel before the ICJ, in particular the section “Expressions of Genocidal Intent against the Palestinian People by Israeli State Officials and Others” (p. 59ff.), which was submitted to the Court on December 29.

    Just a couple of examples (even though it goes on and on and on):

    President Isaac Herzog:

    It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true. … and we will fight until we break their backbone.

    Defense Minister Yoav Gallant:

    [we are] imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly. […] [I have] removed every restriction [on our forces].

    Minister of Agriculture Avi Dichter:

    [w]e are now actually rolling out the Gaza Nakba.

    And that’s just the tip of the iceberg.

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  11. Michael Reynolds says:

    @drj:
    Would that be the same UN that had Saudi Arabia chair the human rights commission? The international laws that the US rejects? The UN that has condemned Israeli human rights more than it has the KSA, UAE, Turkey, Libya, Algeria, Syria and Iraq combined? The UN is a joke, and international law is no such thing because it simply does not apply to powerful countries. And their definition of genocide is patently absurd.

    This is a war. And the Middle East is not New England.

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  12. Michael Reynolds says:

    @Stormy Dragon:

    calling for all Palestinians to be forced out of Gaza

    Right. So stop calling it genocide and start calling it what it is: a threat of ethnic cleansing. And don’t try to pass off the idea that they are the same thing. Ethnic cleansing is when I go to your house and force you and your family out and take possession. Genocide is when I go to your house and kill your family. EC is bad enough, you don’t have to lie about it. Although the louder and more extreme you are the higher you get to climb on virtue mountain, right?

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  13. Stormy Dragon says:

    @Michael Reynolds:

    Remember, it’s only genocide if it comes from the Genocide region of France; otherwise it’s just sparkling ethnic cleansing…

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  14. Not the IT Dept. says:

    James: the heading on the post still refers to ICC. Are you going to update it?

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