[Salon] The ICJ Order -- Commas Matter

FM: John Whitbeck

Anyone watching the oral presentation of the latest ICJ Order (at the link below) in the genocide case against Israel would have expected it to order an immediate halt to Israel's military offensive against Rafah and would have believed that it had unambiguously done so.

However, while Israeli politicians instantly blasted ther ICJ's Order and promised to ignore it, some Israelis have started to argue that the Order does not require Israel to halt its military offensive in Rafah but only to conduct it in a manner that, reflecting the wording of the Genocide Convention, does not "inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part," which, of course, they assert that Israel is not doing and could and would never do.

Indeed, HAARETZ has published an article entitled "ICJ Ruling Doesn't Tie Israel's Hands in Rafah, but Israel Must Prioritize Humanitarian Situation."

How so? It's all a question of commas.

As all lawyers know, commas can have a profound impact on meaning by determining whether a phrase is "restrictive" or "descriptive".

By way simple example, consider the sentence "John likes women who are beautiful." As written, the phrase "who are beautiful" is restrictive, making the sentence applicable only to John's sentiments toward beautiful women while not addressing his sentiments toward women who are not beautiful. However, if a comma were inserted after "women", the phrase "who are beautiful" would become "descriptive", meaning that all women are, at least in John's eyes, beautiful and that John likes all women.

The ICJ's order relating to Israel's Rafah offensive requires Israel, "in conformity with its obligations" under the Genocide Convention, to "[i]mmediately 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."

If there were no commas in this order, the "which ... part" phrase, which the court presumably judged necessary to include since it was ruling in the context of compliance with obligations under the Genocide Convention, would be restrictive but apply only to "any other action", and the order would unambiguously require an immediate halt to Israel's military offensive in the Rafah Governorate.

If the first comma were omitted, the "which ... part" phrase would be descriptive, and the order would unambiguously require an immediate halt to Israel's military offensive in the Rafah Governorate.

If ", and any other action" were omitted, the "which ... part" phrase would be descriptive, and the order would unambiguously require an immediate halt to Israel's military offensive in the Rafah Governorate. (It is unlikely that the reference to "any other action" was added with the express intention of rendering an otherwise obligatory order non-obligatory.)

However, the inclusion of both commas makes the order not totally unambiguous, and, if one interpets it on a stand-alone, out-of-context basis, it is not totally laughable to argue that the "which ... part" phrase is restrictive with respect to both "any other action" and the "military offensive" in the Rafah Governorate, thereby rendering the halt of all aspects of Israel's military offensive in the Rafah Governorate not necessarily obligatory.

Since it is barely imaginable that the court's majority was unaware of these basic comma rules, it is probable the majority of the judges preferred to have an impressive 13-2 majority for the order as punctuated, with only the Ugandan judge and the ad hoc Israeli judge dissenting, rather than having a somwhat less impressive majority for a totally unambiguous order, being confident that most people are not nitpicking lawyers and would therefore interpret this order, as the argumentation within the Order made clear and as most commentators have done, in the manner that the majority of the judges wished it to be interpreted, as obligatory.

In any event, this element of ambiguity opens up interesting possibilities with respect to the forthcoming UN Security Council resolution to require compliance with the ICJ's orders.

If the Israeli government were to adopt as its official position the commas-permitted interpretation of the ICJ's order as not requiring it to halt its military offensive in Rafah, which would automatically and instantly become the U.S. government's official position, and if the proposed resolution were to simply require compliance with the ICJ's orders without specifically requiring a cessation of Israel's military offensive in Rafah or in the Gaza Strip as a whole, there would be no rational reason for the United States to veto the resolution.

After all, the U.S. government has itself been publicly urging Israel to reopen the Rafah crossing and permit a surge of humanitarian assistance, and it would be difficult, even for the United States, to justify a veto on the basis of the third order, to permit access to the Gaza Strip for UN-mandated fact-seekers, alone.

In these circumstances, it is conceivable that Israel might permit the United States to abstain in the vote on such a resolution. It is even conceivable that the United States might make a limited assertion of sovereignty and independence by abstaining even if Israel did not grant it permission to do so.

In this context, it is worth recalling that, when the United States abstained on a recent Security Council resolution calling for a temporary ceasefire, it stunned the world by declaring that Security Council resolutions are non-binding, a claim that was and remains more outlandish than a potential claim that, on a strict reading of the wording and punctuation of the ICJ's new order regarding the cessation of Israel's military offensive in Rafah, that order is not necessarily obligatory.
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