The Biden administration maintains that Israel’s invasion of the southern Gazan city is “limited,” despite an International Court of Justice order and a worsening humanitarian crisis.
By Karen DeYoung, The Washington Post, May 25, 2024 at 7:21 p.m. EDT
The United States, which prides itself as a global leader on human rights and international law, was conspicuously silent Friday after the International Court of Justice ordered Israel to comply with its “obligations” under the Genocide Convention and “immediately halt its offensive” in Rafah.
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The absence of any public statement from the Biden administration was a stark contrast to an almost identical ruling by the ICJ in March 2022, ordering Russia to “immediately suspend the military operations” it had just begun in Ukraine. Noting that the court “plays a vital role in the peaceful settlement of disputes under the U.N. Charter,” the State Department effusively welcomed the order and called on Moscow to comply.
The administration has sharply rejected any comparison between the two situations, noting that one began with attack on Israel by a terrorist group and the other with an unprovoked invasion by one U.N. member state into another.
Instead of issuing a statement on the Israel ruling, the National Security Council authorized spokespeople to respond to any questions with a single sentence: “We’ve been clear and consistent on our position on Rafah.”
That position — that Israel’s invasion of Rafah has been a “limited” incursion to root out remaining Hamas fighters while avoiding undue civilian harm, and to free around 100 living and dead Israeli hostages that remain captives — conflicts with the ICJ conclusion that Rafah is a “change in the situation” since its last warning earlier this year that Israeli actions in Gaza risk genocide.
The court, a branch of the United Nations, has no mechanism to enforce its orders, which must be voted on by the U.N. Security Council, where the United States has veto power. Some international law experts have described the ICJ order as less than binding in any case, since under the court’s own rules the finding remains “provisional” until there is an evidentiary hearing on the merits of the charges brought before it by South Africa. That process could be at least a year away.
But even without a substantive effect, the ruling serves to further isolate Israel — and the United States, as its principal military and diplomatic backer — from world opinion.
“We should all recognize that this is a turning in a very negative direction, and the United States is becoming very isolated because people are starting to equate its support with aiding and abetting illegal action,” said Harold Hongju Koh, the Sterling professor of international law at Yale Law School and former State Department legal adviser in the Obama administration.
“Remember that the 13 countries in the majority” decision of the 15-member court “include major European Union countries, as well as the Middle East and Africa,” Koh said. The White House “can’t ignore the political message this is sending.”
“It threatens to put the United States on the wrong side of international law,” he said.
The two dissenting votes on the court came from Julia Sebutinde, a Ugandan jurist, and from Israel’s Aharon Barak, the former head of Israel’s Supreme Court. Barak argued, according to a court-written summary, that the order was a “qualified” one that does not prevent Israel from continuing its offensive because, among other things, there is “no evidence of intent” to commit genocide. He also argued, as the court has acknowledged, that it was Hamas that began the war with its Oct. 7 attack against Israel. “Against this background,” he said, the court “cannot order one party to stop, while the other is free to continue.”
But much of the rest of the world does not see it that way. Even before the ICJ ruling, the E.U. had urged Israel to stop the Rafah offensive, warning that its continuance “would inevitably put a heavy strain on the E.U.’s relationship with Israel,” the group’s foreign policy chief said on May 15.
The ruling came at the end of a week in which international criticism of Israel reached a crescendo. The prosecutor for the International Criminal Court — a treaty tribunal to which neither the United States nor Israel belongs — called on that court to issue warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant if they set foot in any of its 124 member countries. Three European countries — Norway, Spain and Ireland — said they would join the 140 nations that already recognize Palestine as a state.
Meanwhile, as the ICJ called on Israel to provide “unhindered provision … of urgently needed basic services and humanitarian assistance,” aid organizations used increasingly alarmist terms to describe how the Rafah offensive has worsened the situation inside Gaza.
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“As feared, it has been a tragedy beyond words,” Martin Griffiths, the U.N. undersecretary general for humanitarian affairs, said in a statement Friday. It has “displaced more than 800,000 people … cut off the flow of aid into southern Gaza and crippled a humanitarian operation already stretched beyond its breaking point.”
“Though Israel dismissed the international community’s appeals to spare Rafah, the global clamor for an immediate stop to this offensive has grown too loud to ignore,” Griffiths said. “This is a moment of clarity. It is a moment to demand respect for the rules of war to which all are bound.”
Even as it has continued to describe the Rafah offensive as “limited,” the administration has reflected rising worries. “We had two concerns about a Rafah operation,” said David Satterfield, who served the first six months of the war as the administration’s on-the-ground envoy for humanitarian concerns and remains a State Department adviser.
“The first was the consequences” of displacing up to 1.5 million people who had crowded in and around Rafah, Gaza’s southernmost city, most of them fleeing from fighting further north. Once Israel shifted the war there, “where would they go? How would they receive humanitarian support, shelter, water, food, medical support,” Satterfield said, speaking Friday at a conversation hosted by the Council on Foreign Relations.
“The second concern was that the act of a kinetic operation, limited or not” would see the mass evacuation of Gazans and “all of this would conflict with the logistical, physical ability to move assistance.Regrettably, all of those concerns, which we had outlined to the government of Israel at the highest levels of state, have come to pass.”
Israel’s seizure of the critical Rafah crossing has seen aid to southern Gaza virtually cease. Growing U.S. concern about the humanitarian situation led President Biden on Friday to call Egyptian President Abdel Fatah El-Sisi to ask for help. Sisi agreed to allow aid transiting Egypt to travel to Israel’s nearby Kerem Shalom crossing and extracted a promise from Biden to try to negotiate an agreement on reopening Rafah.
But that stopgap measure, along with the U.S. military’s construction of a temporary pier to deliver assistance directly along the central Gaza coast, is unlikely to change the international politics or the reality on the ground, absent a halt in the Israeli offensive that started in eastern Rafah and has progressed steadily westward.
“My sense is that they’re operating a bit further west in the evacuation zones right now and more evacuation orders are probably coming,” Scott Anderson, the deputy director in Gaza of UNRWA, the main U.N. aid agency, said in an interview Friday. “And I think that perhaps the fighting is going to take place in the western half of the city proper.”
In the absence of an immediate solution, the administration has returned to what has long been its preferred effort to halt the fighting — a temporary truce with Hamas that would allow the release of hostages and a massive increase in humanitarian aid. That effort, which began months ago, largely collapsed earlier this month when Hamas and Israel rejected each other’s amendments to a deal negotiated under the auspices of the United States, Egypt and Qatar.
This weekend, CIA Director William J. Burns, who has been the chief U.S. negotiator, met in Paris with his Israeli counterpart and Qatar’s prime minister in an effort to revive the initiative. No results of the meeting were immediately released.
Karen DeYoung is associate editor and senior national security correspondent for The Post. In more than three decades at the paper, she has served as bureau chief in Latin America and in London and as correspondent covering the White House, U.S. foreign policy and the intelligence community. Twitter
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