What I learned reading between the lines of the ICJ's ruling against Israel

As the International Court of Justice (ICJ) issued its latest ruling in response to South Africa's fourth request demanding a ceasefire in Gaza, I received a text message from a colleague displaced in Rafah wondering what the court finally decided.

I had a positive impression of the decision, but it was not easy to break it to someone who lost his house and belongings, got separated from his family and was displaced several times. At a loss for words, I typed and deleted a couple of times, finally answering, "a ceasefire, but slightly ambiguous."

"Not bad, I will take it," he responded. A day later to our conversation, he lost several friends in the Rafah attack in Israeli designated "safe" zones.

Perhaps, this brief "I will take it" is how Palestinians, especially the ones facing genocide in Gaza, feel about the performance of international institutions supposedly established to protect them as any other civilians. Little confidence, but that is all that is there for them.

The ICJ ordered Israel on Friday to immediately halt its military offensive in Rafah. This ruling came after three previous attempts by South Africa to move the court to order Israel to end its military activities in Gaza. The court avoided dealing with the question of military activities for many months, but finally found no way to protect Palestinian civilians without halting the fight.

It also came a few days after the International Criminal Court's prosecutor announced applications for arrest warrants for senior Israeli officials. But what does it all mean?

What it means

In Friday's ruling, ICJ President Judge Nawaf Salam reiterated the risk of genocide, the deterioration of the situation since the court's first order in January and the irreparable harm to the Palestinian people. He repeatedly used phrases such as "catastrophic," "disastrous," "exceptionally grave developments" and "beyond description" to describe the situation.

The court reaffirmed its two previous rulings from January 26 and March 28. Then, by thirteen votes to two, it indicated that the State of Israel should "immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinians in Gaza conditions of life that could bring about its physical destruction in whole or in part."

A quick reading into this quoted text may suggest that the order is necessarily limited to Israel's offensive in Rafah, and does not suggest a complete ceasefire in the totality of Gaza.

However, a careful reading into the text, in both its English and French versions, suggests the ICJ is ordering a total halt of military activities, with an added emphasis on Rafah since South Africa approached the court earlier this month on this basis.

The commas in the quoted text seem to be placed in such a way to lead to this conclusion. To make it more digestible, the text without what is between the commas reads as: Israel shall "immediately halt its military offensive… 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 suggests that Rafah was emphasised due to its more urgent situation.

One may fairly ask why then the court would not just word the call for a ceasefire throughout the whole territory unambiguously? It seems that the ICJ reached a middle solution between judges in favour of a complete ceasefire and those in favour of a Rafah-only related order by adding these commas.

But if the court really meant to limit the ceasefire to Rafah, it could have easily placed the commas differently or clearly limited the wording to Rafah Governorate. Yet, it did not, which suggests a split and hence a middle solution within the court.

The court also seems to be answering questions related to the merits of the case, which would portend the outcome of the ICJ's final judgement. Reiterating the gravity of the situation, and the court's belief that Israel is not doing enough, carries a heavy weight for the final judgement.

Furthermore, the court in its March order clearly stated that Palestinians in Gaza are no longer at a risk of famine, but rather that "famine is setting in," which can be considered a merits-related conclusion.

Obstacles to ceasefire order

The court can and should clearly call for a complete and immediate end to the Israeli military offensive in Gaza. It is the only way to protect civilians from a genocide.

However, there seems to be a feeling within the court that some other legal issues would need to be handled first in order to be able to give such an order.

The court seems to believe that in order to call for a complete ceasefire, it would need to deal with the issue of "use of force" in international law. That means deciding on Israel's "right to self-defence" and Palestinians' right to resist a foreign occupation.

While several legal experts have reiterated that Israel, as the Occupying Power, does not have the right to self-defence against a population and territory it occupies, the court seems to be leaving this for an advisory opinion expected in July.

Besides the legality of the use of force, some still believe that the court cannot order one party, Israel, to end the hostilities without having authority over the others, such as Palestinian armed groups in Gaza, to do so. This is despite Palestinian groups publicly announcing they would abide by the ICJ decision.

To illustrate, the ICJ is the top United Nations Court and has jurisdiction over UN member states only. The Palestinian groups in Gaza are non-state actors and hence not legal persons before the ICJ.

Regardless, the ICJ can and should still call unequivocally for a complete ceasefire. There are ways to avoid dealing with these legal issues. These are supposedly being dealt with now by the same court in a different case, the Advisory Opinion.

In this case brought by South Africa, the court is being asked to deliver a judgement specifically based on the Genocide Convention, and for its purposes. Therefore, a clearly stated order to cease hostilities could be issued on that basis.

Even if we hypothetically conclude that Israel has the legal right to self-defence in this context (though it doesn't), it is a matter of consensus in international law that this right can never justify a genocide.

Don't wait for the courts

Following this order, the UN General Assembly and UN Security Council should pass unambiguous resolutions not only calling for a complete ceasefire, but sanctions on Israel.

The country has stated arrogantly and repeatedly that it does not have respect for international law and its institutions, and that it will not halt its genocidal venture in Gaza.

That leaves only one option to deal with it: sanctions against Israel and its leaders. How? The answer would need to come from the streets.

International law and its institutions alone will not bring about Palestinian rights. Without them, the journey is harder, but alone they cannot achieve justice.

Palestinians and all people concerned for international law should not wait for a court decision or UN resolution to end the suffering and uphold rights. UN libraries are already overloaded with such resolutions. What can change realities and alleviate the suffering is taking affirmative action - exerting pressure on governments and powerful entities to act.

Advancing BDS and boycotting complicit entities, peaceful encampments on campuses of complicit universities, blacking out celebrities who turn a blind eye, and keeping up the momentum that peaked in the beginning of the genocide around world's major capitals will eventually pay off.

This eventually worked when humanity was failing in Vietnam, Iraq and elsewhere, and so it can in Palestine.