ICJ 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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  15. JKB says:

    European devotees to the gnostic religion that underpinned the political ideology that swept across Europe a century ago make a veiled attempt to save their fellow travelers in Rafah. Not to mention trying to stop the UN being exposed as giving aid and protection to Hamas.

    But the IDF is exposing the evidence with 900 Hamas fighters surrendering and four bodies of Israelis
    killed in October found ghoulishly kept in a tunnel located inside an UNRWA facility

    Good news for decent people, sad news for globalists (apparently)

    Muhammad Shabana, the Hamas commander of the Rafah brigade and number five in Hamas, was eliminated today.

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  16. James Joyner says:

    @drj: This is the rhetoric of seige warfare, not of genocide. Most of the statements also talk about civilians having a choice to leave or suffer the consequences. If they’re not allowed to return, that’s probably ethnic cleansing (a lay term with no meaning in international humanitarian law) but it’s not genocide.

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  17. drj says:

    @Michael Reynolds:

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

    In that case, why be so upset over Hamas murdering and raping Israelis? After all, it’s war; and the Middle East is not New England.

    And their definition of genocide is patently absurd.

    Israel, as well as 151 other states, have ratified or acceded to the very treaty that defines genocide as such. Too late for regrets now.

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  18. drj says:

    @James Joyner:

    This is the rhetoric of seige warfare, not of genocide. Most of the statements also talk about civilians having a choice to leave or suffer the consequences.

    Where should they leave to? If you tell someone: “Leave or I’ll kill you,” but then don’t provide an escape, it’s still murder.

    Saying that your neighbor should have stepped in is not much of a defense under such circumstances.

    If they’re not allowed to return, that’s probably ethnic cleansing (a lay term with no meaning in international humanitarian law) but it’s not genocide.

    Honestly, I don’t know if the conditions of genocide have already been met (although I suspect this is the case). But if your defense of Israel is amounts to “Hey, it’s only ethnic cleansing,” I can live with that.

    Do be aware, though, that we’re still talking about crimes against humanity and that such actions may very well rise to the level of genocide.

    Perhaps we should not support countries that engage in crimes against humanity.

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  19. Gustopher says:

    @Stormy Dragon:

    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.

    Decades of propaganda that created unwavering “facts” in his brain, and an inability to absorb evidence that contradicts these “facts”?

    This is also why Donald Trump has a decent chance of winning the White House again, and why the majority of Republicans believe that they were better off in 2020 than now and have pretty much memory-holed that first year of the pandemic.

    And why my brother drags everything back to the Clovis people, and how the discovery of pre-Clovis sites in the Americas shows that scientists know nothing and therefore Climate Change isn’t real.

    What’s fun to consider is what “facts” you have internalized that make contradictory evidence just not stick.

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  20. steve says:

    It’s not genocide but Israel left itself open to the accusation when they decided to cut off food and medical supplies.

    James- It is both. It is siege and genocidal rhetoric. No nation state is going to announce they are going to kill everyone. You can claim that early on they were pissed so they were not careful in what they were saying and they were speaking out of anger and guilt, but it certainly tells us that they were targeting civilians (with starvation at a minimum) and not just Hamas.

    Steve

    Steve

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  21. Gustopher says:

    @Michael Reynolds:

    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

    There’s a fundamental difference between a member of the legislature, and a member of the government. A Senator cannot just be sacked, while even in a parliament a minister can be (they go back to just being a member of the parliament).

    By not sacking ministers who are espousing ethnic cleansing and genocide, the Israeli government is endorsing those views, or at least welcoming them and allowing them to flourish in their coalition. Maybe their coalition depends on the pro-genocide camp — that’s not good either.

    It’s also worth noting that the pro-genocide/pro-ethnic-cleansing ministers have been the only members of the Israeli government who have laid out any vision for what a post-war Gaza looks like.

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  22. Kathy says:

    When reading the Gaza War threads, does anyone feels something similar to watching reruns?

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  23. SKI says:

    @Gustopher:

    By not sacking ministers who are espousing ethnic cleansing and genocide, the Israeli government is endorsing those views, or at least welcoming them and allowing them to flourish in their coalition. Maybe their coalition depends on the pro-genocide camp — that’s not good either.

    The Kahanists that are mouthing off may be “in government” but they have been completely excluded from the unity war council that is making decisions regarding Gaza. Which, btw, is why they are mouthing off. They are complaining that they have been sidelined and ignored.

    It’s also worth noting that the pro-genocide/pro-ethnic-cleansing ministers have been the only members of the Israeli government who have laid out any vision for what a post-war Gaza looks like.

    1. That isn’t true. Gantz has been explcicit that the “day After” needs to include a governing body that isn’t Israel and has called for a combination of foreign powers assisting a Palestinian governing body (with the stated recognition that it will almost certainly have to be the PA).
    2. Yes, it really sucks that Bibi was only able to form a government by bringing in the crazies and those who had been shunned and can’t remove them without losing power and is too selfish a schmuck to give up power. That is why huge numbers of Israelis have been in the streets pretty much every day protesting.

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  24. Lounsbury says:

    @Kathy: Yes. They are the very picture of rerunning the Dialogue of the Deaf again and again.

    But then the absolute repetitive sterility of the threads are like such declarations sterility – regardless of any correctness or not.

    Personally only the EU members recognitions contain even the dimmest hope of any change in the current sterile dynamic. The Americans certainly will not.

    Th@Stormy Dragon: If genocide is to have any real meaning other than Something Bad Happening, it needs to mean what its etymology says.

    What is happening in Ghaza and West Bank is fater and slower ethnic cleansing, it is not functionally genocide. Not that any precision will have any change in your ususual emotive bleating on any given subject.

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  25. Gustopher says:

    @Kathy: Think of it like an intricate and beautiful tea ceremony, except with a lot more anger and vitriol and one of the participants supporting genocide or sparkling mass slaughter of civilian populations.

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  26. Andy says:

    Still a busy working weekend for me, but a couple of quick comments.

    There are several ways to gauge intent—there is stated intent by politicians and various individuals in government in various contexts, but much more importantly, there are actual actions. Actions show intentions far more than words do.

    As I often repeat here, actions matter much more than words. People say a lot of things and then do nothing. Just look at what Americans say about politics. Lots of people yapping at their keyboards about how they won’t stand for something, about how such-and-such is unacceptable, but of course, 99% of the time, their concern doesn’t translate into action, not even something as basic as writing to their elected representatives.

    So no, I do not take a couple of comments said months ago by Israeli politicians in the heat of the aftermath of the worst pogrom since the Holocaust, nor more recent comments by minor officials with no authority, very seriously when compared to the actual actions of the Israeli state, which show the intent of the Israeli state far better and more comprehensively than a handful of cherry-picked statements can. And those actions are not in any way, shape, or form “genocide” against Palestinians.

    And if you’re going to point at statements, you can’t simply cherry-pick the ones that support your conclusion; you have to look at all of them and compare them to the actual actions of the state to properly evaluate intent. Many commenters here refuse to do that and insist that the cherry-picked comments they repeatedly highlight are dispositive. The problem is, the actions on the ground don’t support that conclusion.

    The problem with the ICJ ruling is similar – it completely fails to show that genocide is actually being committed; it relies on false information about aid disruptions and fearmongering about what might potentially happen despite the fact the previous fearmongering about the Rafah offensive turned out to be completely false.

    There is no evidence of genocide in Rafah. As of yesterday, since May 1st, the Gaza MOH has reported that 1,232 Palestinians have been killed in Gaza. That’s an average of ~51 per day, or 1/3 of the average over the entire conflict of 155 per day. Somehow, fewer Palestinian deaths have prompted the ICJ to conclude that Israel is now committing genocide and must stop.

    Never mind the fact that there are about 2.1 million Palestinians who have citizenship in Israel – about the same number as live in Gaza. You would think that a country that intended to commit genocide against Palestinians would probably be taking action to get rid of those citizens in its borders. Well, is it? Did the ICJ or pro-genocide crowd bother to think through that, or are such obvious facts meaningless compared to what some politician said seven months ago.

    One last thing: I find it curious that some argue here Israel is definitely intentionally engaging in genocide also confidently declare in other threads (and even this one) that Israel is definitely intentionally engaging in other – contradictory to genocide – things, such as military occupation or ethnic cleansing.

    Please pick a lane.

    If you are supremely confident that Israel is intent on genocide, then don’t suddenly switch to ethnic cleansing or something else for rhetorical convenience.

    Well, so much for my attempt at “brief” comments. Anyway, back to work.

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  27. DK says:

    Genocide vs ethnic cleansing…kin to debating whether a criminal is a serial killer or mass murderer. So what? It’s it going to make the murders less vile?

    @Stormy Dragon:

    I’m forced to wonder why you persist in acting like you’re unaware of it.

    Same reason why the far left wants to portray Hamas as freedom fighters: stupidity, dishonesty, and/or tribalism.

    Unfortunately, the current leaders of Palestine and Israel are murderous religious extremists who want holy war.

    So naturally, when one makes the error of picking sides between dishonest and amoral tribes, one will inevitably end up sounding dishonest and amoral. Like, pretending Hamas are freedom fighters, or pretending Israel’s Minister of National Security is a minor official with no authority, etc.

    Hamas having left alive some they encountered on 7 Oct alive does not mitigate the horror or indicate non-genocidal intent. Similarly, Israel not killing every single Palestinian does not mitigate the vileness of Netanyahu’s government greenlighting terrorist murder in the West Bank or adopting in Gaza sinister rules of engagement that cause disproportionate collateral death.

    Ted Bundy left most of the girls alive at the last sorority house he attacked. This means his intent wasn’t mass murder?

    Terrorism, genocide, and seige warfare can occur in the same conflict. So can genocide, ethnic cleansing, and occupation (see Ukraine). Some folks sound dumb playing semantical games with inhumane crimes and making tortured zero sum, either/or arguments where a simple both/and will do. Predictability downstream of the first error: picking sides in a holy war between stubborn, violent ethnoreligious extremists.

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  28. Ken_L says:

    The International Court of Justice found, in part, that:

    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.

    This finding was not based on “early statements by Israeli officials” but on an extensive review of evidence before it about “catastrophic” conditions in Gaza, including for example that “800,000 Palestinians were displaced from Rafah as at 18 May 2024” with inadequate measures in place to provide them with food, water, or health care, and that

    about half of the approximately 1.2 million Palestinians sheltering in Rafah were children, and warned that military operations therein would result in “the few remaining basic services and infrastructure they need to survive being totally destroyed”

    It’s beside the point that some consider the Convention’s definition of genocide to be “problematic” (I don’t find it so). It’s the definition the Court is obliged to apply, and it has.

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  29. Andy says:

    @DK:

    pretending Israel’s Minister of National Security is a minor official with no authority

    The claim is being made that this minister is proof of Israel’s intent to commit genocide in Gaza. He’s a minor minister whose party controls 6 out of 120 seats in the Knesset. He’s not in the war cabinet, which means he has no authority to make decisions related to the conduct of the war in Gaza. So, what specific authority or power does this minister have within the Israeli government that turns the government into a genocidal actor? His mere existence in a coalition government is insufficient.

    @Ken_L:

    It’s beside the point that some consider the Convention’s definition of genocide to be “problematic” (I don’t find it so). It’s the definition the Court is obliged to apply, and it has.

    What commenters are arguing is different from what the court is saying. The court is acting on the basis that “plausible rights” claimed by South Africa might be damaged:

    …the Court find that the current situation arising from Israel’s military offensive in Rafah entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa and that there is urgency, in the sense that there exists a real and imminent risk that such prejudice will be caused before the Court gives its final decision.

    That’s the legal reason – the Court doesn’t want its eventual final ruling to be overtaken by events, and South Africa and “neutral” parties like UNRWA have convinced it that the Rafah offensive risks the potential for an actual genocide, so it ordered Israel to stop and not take “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.” Israel is simply interpreting this last part to mean it can continue since its operations aren’t going to bring about the destruction of the Palestinian group.

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