Kerstin Bree Carlson joins JiC for this guest-post on the ICJ’s decision on Israel’s military operations in Rafah. Kerstin is associate professor at Roskilde University and The American University of Paris where she teaches topics in international law and sociology. Her current research examines terrorism trials in Denmark, France and Colombia.

On 24 May 2024 the International Court of Justice (ICJ) made history and ordered a ceasefire in Rafah.

Unless it didn’t.

By 13 votes to 2, the ICJ  ruling  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.”

So did the ICJ order a ceasefire? Or did the ICJ reiterate its earlier decisions, and therefore only warn Israel to take care how it fights? The answer comes down to how we understand the dependent clause regarding inflicting conditions of life, and to what it applies. Some argue the clause simply references the Genocide Convention, the treaty which gives the ICJ jurisdiction over the case. This makes it a repetitive allusion to binding law, a kind of dismissible “extra” language that lawyers call dicta and does not impact the ceasefire clause preceding it. Others argue it is a condition that imagines and permits military action that does not inflict genocidal conditions. If so, the court has not ordered a ceasefire, but instead merely sharpened earlier provisional measures reminding Israel of its responsibilities under international law.

If you’re unsure what to think, you’re in good company: the judges on the ICJ who made the ruling don’t agree either.

What did the ICJ judges say?

The ruling was issued by 13 judges, with 2 judges dissenting. But the 13 ruling judges were not in complete agreement with the ruling’s language. Three judges appended “declarations” to the ruling. These concurring opinions affirm the ruling but seek to provide distinct rationales and interpretations as to what was decided and why. They demonstrate stark disagreements regarding the meaning of what the judges put their names to.

Judge Dire Tladi of South Africa asserts that the ruling orders a cessation of Israeli’s military offensive in Rafah. He notes that international law permits states to engage in self defense and that nothing in the order can be read to prevent Israel from undertaking “legitimate defensive actions…  to repel specific attacks” (emphasis in the original). But he concludes: “Today, the Court has, in explicit terms, ordered the State of Israel to halt its offensive in Rafah.” In Judge Tladi’s view, Israel’s military actions in Rafah are offensive and prohibited by the ruling.

In his declaration, Judge Bogdan Aurescu of Romania likewise affirms that the ruling “do[es] not affect in any way the legitimate right of Israel to undertake actions, which should be conducted in strict conformity with international law, including in a manner responding to the criteria of proportionality and necessity, to protect its civilian citizens and to free the hostages still held in the Rafah area by Hamas and other armed groups.” This seems, however, to contradict his co-signatory Judge Tladi regarding whether activities in Rafah should be understood as offensive and prohibited or defensive and possibly permitted.

As regards the ceasefire, Judge Aurescu writes that the dependent clause about conditions of life applies to the halt of the military offensive. This would suggest the ruling is not a ceasefire but rather a condition on the kinds of military action Israel can take. The declaration of German Judge Georg Nolte’s similarly categorizes the present ruling as not unlike previous rulings, i.e. reiterations of Israel’s obligations under the Genocide Convention rather than a ceasefire.

Although Judges Aurescu and Nolte side with the majority, their interpretations regarding what sorts of military action the ICJ is halting echo the interpretation provided in Israeli ad hoc Judge Aharon Barak’s dissent. Judge Barak opens his dissenting opinion by stating that the ruling rejects South Africa’s request for a ceasefire. This is because, similar to concurring judges Nolte and Aurescu, he interprets the dependent clause as a reiteration of what the ICJ has said before in previous orders rejecting South Africa’s request for a ceasefire.

As for impact on the ground? Just a few hours after the ICJ issued its ruling, Israeli forces struck in Rafah killing dozens in a camp of displaced persons. Israel claimed it was a mistake, but dozens of states have claimed it violated the ICJ’s orders.

Why Can’t the ICJ Speak Plainly?

As I discuss in my book addressing international law in Africa, international courts are subjected to particular pressures. Unlike domestic courts, they possess neither purse nor sword and therefore cannot enforce their decisions. In international law, enforcement always relies on state consent and cooperation.

Although it may seem counterintuitive, ambiguous court language can actually be a boon when it comes to state consent and cooperation. This is because it allows states flexibility regarding how they discuss, interpret, and apply international legal norms, which can actually advance the cause of international law. Since the authority of international court resides in articulating norms, nothing is more destructive to international courts than being ignored. Had the ICJ unambiguously ordered Israel to cease military operations in Rafah, it would create a binary. In that situation, Israel would either obey or disobey the ICJ, and other states would either enforce or ignore the ruling. If Israel disobeyed and other states did not enforce, the ICJ would be sidelined as an institution.

The ICJ’s ambiguous language invites interpretation. This opens and encourages what is essentially a political debate regarding the content of international law, empowering states to engage in it. When states, who are ultimately the enforcers of international law, are engaging in debates about concepts delineated by the ICJ, the court ensures its continued relevance.