If Israel’s Leaders Would Just Shut Up Everything With the ICJ Would Be Fine

Unlike what some media have reported, the International Court of Justice’s May 24^th ruling was hardly an indictment of Israel. The main operative clause ordered Israel to, ‘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.’ In other words, this is just the ICJ once again reminding Israel not to commit genocide.

Unlike what some news outlets have said, this is not an order that Israel withdraw from Gaza or even cease operations in Rafah. It is not a demand that Israel lay down its arms and stop defending itself against Hamas attacks or give up on freeing the hostages. It is just insistence that Israel make sure its military operations comply with the genocide convention and humanitarian law.

Several of the ICJ judges who voted for the provisional measures make this clear in their separate statements. For example, Judge Dire Tladi of South Africa wrote, “The Court has ordered Israel to ‘halt its military offensive in Rafah’. The reference to ‘offensive’ operations illustrates that legitimate defensive actions, within the strict confines of international law, to repel specific attacks, would be consistent with the Order of the Court.”

Romanian Judge Bogdan Aurescu added, “The provisional measures. . .do not affect in any way the legitimate right of Israel to undertake actions, which should be conducted in strict conformity with international law. . .to protect its civilian citizens and to free the hostages still held in the Rafah area by Hamas and other armed groups.” This is even without mentioning the dissent of Israeli ad-hoc Judge Aharon Barak, who takes pains to explain how even the measures that he voted against should not be construed as imposing new limitations on Israel’s ability to defend itself.

If Israel would simply make clear that its only intention in its military operations is to defend its citizens and rescue hostages in a proportionate manner while taking all feasible precautions to prevent Gazan civilian harm, it would be complying with the court. What won’t fly are statements such as this reaction to the latest court decision by National Security Minister Itamar Ben-Gvir: "The irrelevant order of the antisemitic court in The Hague should have only one answer: the occupation of Rafah, the increase of military pressure and the complete destruction of Hamas - until the complete victory in the war is achieved." This makes it sound like Israel doesn’t take international law seriously at all.

In fact, statements by Israeli officials were instrumental in causing the court to impose its measures in the first place. German Judge Georg Nolte quotes in his declaration, “a statement by the Vice Chair of the international arm of the ruling Likud Party of 3 May 2024 on Israeli television, who reportedly declared: “I think we needed to invade Rafah yesterday . . . There are no uninvolved . . . [We] need to go in and kill and kill and kill”. He writes that this and other similar statements by Israeli leaders make him doubt Israel’s publicly given commitment to providing humanitarian aid and necessitate the court’s measures.

The Simple Path Forward

The path for Israel to get out of trouble with the ICJ is straightforward and simple. First, Israel has long maintained that its military actions are compliant with humanitarian law and the genocide convention. It must continually emphasize how this is the case not just in word but in deed.

Second, there has never been a war without war crimes and allegations that specific Israeli attacks violated humanitarian law need not condemn the entire military operation. Israel needs to show that its judicial system takes these allegations seriously, investigates them thoroughly, and holds accountable anyone found guilty of these breeches.

Finally, government officials have to stop making statements that give the impression Israel does not plan to follow humanitarian law or the genocide convention. Even when the officials are not members of the war cabinet, it gives the impression of ‘a volatile political environment’ as Judge Nolte wrote in his declaration, and makes it seem like Israel cannot be trusted to follow its legal obligations. These statements just give fuel to Israel’s political opponents and provide ammunition to be used against it in court.

Contrary to what has been said, even in this latest ruling the ICJ has not attempted to take away Israel’s right to self-defense. Israel can easily comply with the ICJ’s rulings, and the fact that the ICJ has repeatedly subjected Israel to provisional measures is largely because of its own political leaders and their outrageous statements. If they would shut up, the ICJ judges would likely be quiet too.