Eye on the Middle East | Under the eyes of two courts, Israel pushes into Rafah as Washington wavers - Hindustan Times

Eye on the Middle East | Under the eyes of two courts, Israel pushes into Rafah as Washington wavers

Jun 02, 2024 01:56 AM IST

In its May 24 order, the International Court of Justice ordered Israel to “immediately halt its military offensive, and any other action in Rafah”.

On May 28 and 29, Israeli tanks rolled into parts of Rafah, including the city centre for the first time as global focus sharpened on the South Gaza city where at least one million Palestinians have sought refuge (on Israel’s orders).

Smoke rises from an Israeli airstrike in Rafah, southern Gaza Strip, Friday, May 31, 2024. (AP Photo/Abdel Kareem Hana)(AP) PREMIUM
Smoke rises from an Israeli airstrike in Rafah, southern Gaza Strip, Friday, May 31, 2024. (AP Photo/Abdel Kareem Hana)(AP)

This gradual widening of Israel’s incursion into Rafah occurred on the back of an Israeli strike on Tal as-Sultan (on May 26) just north of Rafah city, killing at least 45 Palestinians sheltering in aid camps.

The strike occurred two days after the International Court of Justice (ICJ) issued its third order indicating additional provisional measures in the ongoing South Africa v Israel case pertaining to the Genocide Convention. In its latest May 24 order, the Court further 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”.

Moreover, even as the genocide case in the ICJ progressed, the Prosecutor of the International Criminal Court (which tries individuals and not states) sought arrest warrants against Israeli PM Benjamin Netanyahu and Hamas chief Yahya Sinwar (among others) in the Court’s Pre-Trial Chamber. These developments indicate shifts in both the scale and nature, of global positions on Israel’s war in Gaza.

Scale: The World Court and the world

As Israel’s advance into the Rafah governorate continues, critical global positions against Israel have only consolidated further. The ICJ’s order had little effect on either Israel’s military strategy or its public posturing – Israeli reactions have varied from interpreting the order as actually allowing Tel Aviv to continue its campaign, to outright criticism and denial.

However, the order which noted the “immense risk” to civilians due to Israel’s military offensive as well as the insufficiency of Israeli measures to enhance civilian security, created fresh space for states to increase pressure on Israel. Even as several European states such as Ireland, Spain, and Norway moved to officially recognise Palestine as a sovereign state (amid fervent Israeli protest), the European Union explicitly asked Israel to “respectfully this Court order”.

This occurred parallel to Arab states, such as Saudi Arabia, reiterating afresh that normalisation of ties with Israel is contingent on the establishment of a Palestinian state – despite the United States attempting to increase the stakes for Saudi-Israeli normalisation that seemed a real possibility prior to October 7 (as this column noted).

In any case, global support for a Palestinian state has only increased through May – with India too voting in favour of expanded membership rights for Palestine, and reaffirming support for the two-state solution at the United Nations General Assembly and in regular briefings by the Ministry of External Affairs (the latest on May 30).

Hence, the ICJ’s order is only the latest addition to what is now a steadily expanding campaign to preserve and protect Palestinian rights, despite Israel decrying all such moves and continuing its offensive.

For Israel, the more international pressure increases, the greater the need to push through with its war plans – the more cornered Netanyahu feels, the more his need to reassure his far-right allies that the offensive into Rafah will continue.

Nature: The ICC, the US, and Israel

The real change, however, is the development at the ICC. This can be unpacked on two fronts:

The ICC: The International Criminal Court has long been a beleaguered institution. The Court’s establishment in 2002 (after the Rome Statute’s adoption in 1998) was the culmination of decades of post-WW2 development of international criminal justice, especially through the criminal tribunals of Rwanda and former Yugoslavia. However, in the past two decades, the ICC has been criticised on two fronts principally – a low prosecution rate despite high costs, and a reputation for prosecuting mostly non-Western leaders. The Court sought to undo this in 2020 when then Prosecutor Fatou Bensouda attempted to investigate allegations of war crimes committed by US troops in Afghanistan – only to incur sharp hostile rhetoric and economic sanctions on the Prosecutor and other ICC officials by the Trump Administration. With the sanctions lifted by the Joe Biden administration, the new Prosecutor (Karim Khan) found new favour with Washington as the ICC issued arrest warrants against Vladimir Putin in 2023 for alleged war crimes in Ukraine. The Prosecutor’s current efforts against Netanyahu and Sinwar then, arguably stem both from a desire to preserve neutrality and credibility as well as renewed confidence in weathering US criticism.

United States and Israel: In March 2023, President Joe Biden approved of the ICC warrants against Putin, terming them “justified”. In just over a year, his administration has indicated that it will support Republican moves to sanction the Court again and mounted its own criticism of the Court. This is despite European states such as France and Germany (parties to the Rome Statute unlike the United States) explicitly voicing support for the ICC, following the Prosecutor’s announcement.

Evidently, the United States has had to walk back on its own expressions of support for the Court’s work in March 2023 and the new modus vivendi it attempted to create with the Court as the Prosecutor began investigations into war crimes in Ukraine.

It has also had to publicly dilute the red line it had declared for Israel: “Do not go into Rafah” early in May 2024. Following the Tal as-Sultan attack (which Netanyahu later termed a mistake), and as Israeli troops steadily take control of the Philadelphi Corridor (the demilitarized Gaza-Egypt border), Washington has been forced to assert that its red lines were not crossed yet while reiterating non-support for “a major ground invasion”; “we have not seen them smash into Rafah”.

The logic here is crudely similar to that of deterrence, as this column noted during the Iran-Israel skirmish. Should Washington admit that Israel has crossed its red lines, it will lower the White House’s credibility as an agent that can significantly influence decision-making in Israel, forcing it to act adverse to Israeli interests. Given increasing Republican pressure on the administration against any arms cut-offs, the Biden administration is caught in a bind. A slow, piece-meal incursion into Rafah by Israel then, allows for more space for Washington to diplomatically manoeuvre.

Bashir Ali Abbas is a research associate at the Council for Strategic and Defense Research, New Delhi, and a South Asia Visiting Fellow at the Stimson Center, Washington DC. The views expressed are personal.

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