The controversiality of narratives in the conflict between Israel and Hamas

The controversial aspects that affect the mainstream narrative over the current state of affairs in the conflict between Israel and Hamas

The mainstream narrative that has surrounded the Israeli-Palestinian conflict since the establishment of the State of Israel has always characterised the Jewish state as the oppressor and the root cause of the plight endured by the Palestinians. The paradigm “Israel = Oppressor, Palestinians = Victims” is used as a filter to interpret the events. The narrative surrounding the current state of affairs, with the war between Israel and Hamas being the global centre of attention, echoes and parrots this approach.

This paradigm is assumed as an established fact by the overwhelming majority of the international fora, media, and public opinion: an established fact that is perceived as not requiring a fact-checking approach to the issues at stake. The automatic consequence is that Israel is seen as being in constant breach of international law. These aspects directly affect issues such as the accusation of genocide discussed before the International Court of Justice (ICJ).

Following the order of 26 January 2024 issued by the ICJ in the case South Africa v. Israel regarding the accusation of violating the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) by Israel, the main approach and interpretation was that the court had declared Israel was in plausible breach of the Genocide Convention. The key aspect of this approach was the misunderstanding and misinterpretation of paragraph 54 of the order, which states that “In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.”

Doubts were officially cleared only when, in late April 2024, Joan Donoghue, president of the ICJ at the time the order of 26 January 2024 had been discussed by the court, clarified in an interview with the BBC that the order had been misinterpreted and misreported. She explained that the court acknowledged the Palestinians’ “plausible right” to be protected from genocide and confirmed South Africa’s right to present this claim to the court. She also emphasised that the court did not rule over the plausibility of the genocide claim itself. However, the court did highlight in its order the potential risk of irreparable harm to the Palestinians’ right to protection from genocide. What the court did was essentially re-state the obligations of the State of Israel under the Genocide Convention.

A similar situation of misinterpretation and misreporting concerns the order issued by the court on 24 May 2024. The order was issued following a list of requests from South Africa to halt the operation of the Israeli Defence Forces (IDF) in the Rafah area. The written requests submitted on 10 May 2024 were the following:

1. The State of Israel shall immediately withdraw and cease its military offensive in the Rafah Governorate.
2. The State of Israel shall immediately take all effective measures to ensure and facilitate the unimpeded access to Gaza of United Nations and other officials engaged in the provision of humanitarian aid and assistance to the population of Gaza, as well as fact-finding missions, internationally mandated bodies or officials, investigators, and journalists, in order to assess and record conditions on the ground in Gaza and enable the effective preservation and retention of evidence, and shall ensure that its military does not act to prevent such access, provision, preservation or retention.
3. The State of Israel shall submit an open report to the Court: (a) on all measures taken to give effect to these provisional measures within one week as from the date of this Order; and (b) on all measures taken to give effect to all previous provisional measures indicated by the Court within one month as from the date of this Order.

During the oral phase, South Africa reformulated the first request in “immediately, and further to its obligations under the Court’s previous Orders of 26 January 2024 and 28 March 2024, cease its military operations in the Gaza Strip, including in the Rafah Governorate, and withdraw from the Rafah Crossing and immediately, totally and unconditionally withdraw the Israeli army from the entirety of the Gaza Strip,” repeating its previous requests to halt any type of military operations and rejected by the court.

The court eventually issued the order 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; […]
• Maintain open the Rafah crossing for unhindered provision at scale of urgently needed basic services and humanitarian assistance; […]
• Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide; […]
• Decides that the State of Israel shall submit a report to the Court on all measures taken to give effect to this Order, within one month as from the date of this Order.

The main piece of controversy in the public arena is the first paragraph of the order: does it request the halt of any type of operations in the Rafah Governorate? The reactions have been of different types. Those who have taken an anti-Israel stance throughout the development of the military operation interpret it as an order to halt any type of military operations in the Rafah area. An interpretation that often extends also to an unconditional halt of all types of hostilities currently taking place in the Gaza Strip. This interpretation is being repeated and echoed over the media and diplomatic fora and environments. The requests for an urgent ceasefire have increased exponentially following the issue of the order, as well as the request to sanction Israel. The latter is a position particularly advocated by Francesca Albanese, the Special Rapporteur of the UN Human Rights Council (UNHRC).

This interpretation is rejected by other commentators, such as Joshua Rozenberg, Natasha Hausdorff, and the UKLFI Charitable Trust (UKLFI). The main conclusion of their analysis of the text of the provisional measures is that the court “did not order Israel to cease military operation unconditionally in Rafah” (UKLFI), but only those that would be in contrast with the object and purpose of the Genocide Convention. In essence, only those operations that would risk to destroy in whole or in part the Palestinian population. As it happened for the order of 26 January 2024, the court seems to simply re-state the obligations of the State of Israel under the Genocide Convention. This conclusion has been reached by focusing on both the text and the punctuation of the order. UKLFI, to further articulate its interpretation focuses on the qualified aspect of the sentence and compares it with the unqualified request on Russia following its invasion of Ukraine.

This conclusion is supported also by the explanations provided by Judges Nolte and Aurescu, who voted in favour of the order. Judge Nolte explained, in paragraph 25 of his declaration, that the order to halt the military operation in Rafah is “conditioned by the need to prevent ‘conditions of life that could bring about [the] physical destruction in whole or in part’ of the Palestinian group in Gaza,” and that this measure does not apply to operations that do not entail this risk. Similarly, Judge Aurescu, in paragraph 3 of his declaration, noted that the interpretation to give to the order is that Israel has to halt its offensive in Rafah only in the measure that this operation “may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”. Judge Sebutinde, ICJ Vice-President, in her dissenting opinion (paragraph 22) has expressed the unnecessary need to issue an order of this type as it only echoes and repeats the principles expressed in previous orders.

Other controversial aspects of the order concern the opening of the Rafah crossing, between Egypt and the Gaza Strip. The order seems to rely on the assumption that the crossing has been closed by the IDF. However, since the Israeli army took control of it, the crossing has been open on the Strip’s side but closed on the Egyptian one (as also highlighted by Judge Sebutinde in her dissenting opinion, paragraph 23). The control by the IDF has sparked a short crisis between Egypt and Israel. A crisis eventually solved with Egypt agreeing to have trucks enter the Gaza Strip via Israel and its Kerem Shalom crossing.

Since the IDF took control of the crossing, dozens of tunnels crossing the border (known also as Philadelphi Corridor) between Egypt and the Strip have been discovered. This raises questions and doubts about Egypt’s ability or willingness to patrol the territory and cut off any communication and smuggling activities between Hamas and the Sinai. If the terror group has gradually and constantly strengthened its capabilities it is due to Egyptian forces negligently shirking their responsibilities. It is also highly plausible that Yaya Sinwar has fled the Gaza Strip through one of these tunnels, most likely taking some of the hostages to the Sinai peninsula. Despite all of these elements available for consideration, it is striking the rush and eagerness of international media and political bodies to point the finger at Israel. This eagerness is usually accompanied by a list of measures that Israel should not implement because considered too harsh and counterproductive. At the same time though no suggestions are provided of what they think Israel could or should implement to free the hostages and prevent that Hamas poses a threat again.

The third part of the order is also controversial. The request to “take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide” is very unusual for a situation where the crisis is still ongoing. At the present state of affairs, it is unclear how Israel will comply with this request. But it is even more unclear how the court intends this request to be implemented as it is expressed in general terms, and as such it does not frame a clear set of indicators to be respected. Assuming that unimpeded access is ensured according to the requests and intentions of the court, who will be responsible for the security of the mission? Most likely Israel will be requested to guarantee security and close protection to the members of the investigating team: could this become an impediment to the IDF military operation Hamas could exploit and benefit from? Also, how does this hypothetical commission intend to collect information in the areas controlled by Hamas?

The evaluation and assessment of the aspects of advantages that Hamas could benefit from are crucial to the way Israel will comply with the requests of the court. The court has no jurisdiction over Hamas. In such terms, the call for the release of hostages by the ICJ falls on deaf ears. Hamas, in the terms expressed by the ICJ Statute and procedures, cannot be held accountable. This feature turns the case submitted by South Africa more into a political and ideological dispute than a legal one.

A further aspect that sparks controversy is represented by the past professional activities of Judge Nawaf Salam, the President of the ICJ. President Salam, before being elected judge of the court, was Ambassador of Lebanon to the United Nations. From his position as ambassador, he followed a path of accusations against Israel such as those of apartheid and violations of international humanitarian law. It is fair to wonder how impartial (in terms of absence of bias in the disposal of the case) the President is in the assessment of the dispute. It would have been more appropriate, and a sign of legal probity, to recuse himself per the standards and procedures set by articles 2, 17, 20, and 24 of the ICJ Statute.

Self-recusation of judges of the ICJ in consideration of their past professional positions that could cast doubts on their impartiality does not seem to be a practice that is followed. In 2004 strong doubts were cast on the impartiality of Judge Nabil Elaraby in the case Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Judge Elaraby, before his election to the ICJ, had been a diplomat and Ambassador of Egypt to the United Nations, and a member of the Egyptian delegations to peace conferences. Through his position as ambassador, he had taken strong stances against Israel within the frame of the Israeli-Palestinian conflict. As such Israel expressed concern about his bias. Even in that case, the judge did not feel his past position impeded his impartiality. A position that was confirmed by the ICJ itself, although not unanimously, but with the opposition of Judge Thomas Buergenthal. The court rejected the argument saying that the activities in question of Judge Elaraby had taken place long before the events concerning the construction of the defensive barrier took place, hence, the cases were not connected.

Judge Buergenthal, in his opposition, refers to article 17(2) of the ICJ Statute, commenting that the list expressed was not exhaustive. He argued also that fairness must not only be applied but also be seen to be applied (implicit comment). The Judge also refers to an interview released by Judge Elaraby in 2001: in the opinion of Judge Buergenthal, this interview, although no comments on the subject matter of the case were present, as the decision of the building of the security barrier was taken only in June 2002, had to be considered in the larger context of the Israeli/Palestinian conflict. The main ground to be considered, according to Judge Buergenthal, is the appearance of bias: in these terms, judge Elaraby should have been disqualified from sitting on the case. The Court rejected these arguments.

These aspects and precedents do not make the case for an impartial and fair ICJ. The external image the court projects itself is not an image that builds confidence in the system. On the contrary, they strengthen the critiques of the UN framework and its inability to effectively and fairly solve disputes, address international crises, and implement effective plans and means of conflict resolution concerning equal interpretation and applications of rights and obligations under international law.  

The case brought by South Africa against Israel is only one of the aspects that shape the current narrative of the Israeli-Palestinian conflict in general, and the conflict between Israel and Hamas in the specific. The incident of the blaze that erupted following a targeted strike on two Hamas commanders, despite the initial investigation conducted by the IDF and the initial evidence shown and distributed to the media (dismantling the initial reports and accusations that have been moved against Israel from the very first minutes), is likely to be used by South Africa and other international actors to appeal to the ICJ or the UN Security Council to implement a stronger order to halt all types of hostilities. 

The narrative surrounding the Israeli-Palestinian conflict is based on several archetypes. Some concern the lawfulness of the right to exist of the State of Israel and the definition of its borders (is it legit to appeal to the principle of uti possidetis juris to define its borders?), the status of the West Bank (illegally occupied territory or disputed territories?), the issue of the Palestinian refugees and the work of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA; is its work effective for the resolution of the conflict or its an agency that perpetrates the conflict? is it an impartial and transparent agency or it has de facto connections with terror organisations? do the internal investigations address the failures and are they transparent?), the bid for Palestinian statehood (is the way undertaken by the Palestinian Authority a legit path? does it violate the Oslo Accords and the clause of not undertaking unilateral steps to change the status of the territories?), the legitimacy of the proceedings that the International Criminal Court opened against Israel.

The misinterpretation, whether due to error or wilful deceptive interpretation, of the orders that have been issued so far represent examples of the general approach taken in the filtering of the situation. This same misinterepretation does not assist or lead to a resolution of the conflict. It has instead the ability and potential to further exacerbate the positions. In this frame, the voice of the Palestinian side results to be louder and more accepted in the general opinion. While Israel has big margins of improvement in terms of public relations and the ability to defend its case, this should not provide a justification and prevent the international community from doing its impartial assessment of the case. The international community has the duty to consider all the legal aspects surrounding the conflict, without taking as established facts positions that are not so established in their arguments. In these terms and framework, the position taken recently by Norway, Spain, and Ireland to unilaterally recognise the State of Palestine will not lead to a faster resolution of the conflict.

References:

• ICJ Statute
• Convention on the Prevention and Punishment of the Crime of Genocide
• ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
• Application institution proceedings and request for the indication of provisional measures (29 December 2023)
• Verbatim record 2024/1
• Verbatim record 2024/2
• Order of 26 January 2024
  • Dissenting Opinion of Judge Sebutinde
  • Separate Opinion of Judge ad hoc Barak
• Request for additional measures under Article 75(1) of the Rules of Court submitted by South Africa, 12 February 2024
• Observations of the State of Israel on the request for additional measures under Article 75 (1) of the Rules of Court, 15 February 2024
• Request by South Africa for the indication of provisional measures and modification of the Court’s prior provisional measures decisions, 6 March 2024
• Observations of the State of Israel on South Africa’s Request for the indication of provisional measures and modification of the Court’s prior provisional measures decisions, 15 March 2024
• Order of 28 March 2024
• Request by South Africa for the indication of provisional measures and modification of the Court’s previous provisional measures, 10 May 2024
• Verbatim record 2024/27
• Verbatim record 2024/28
• Written reply of the State of Israel to the question put by Judge Nolte at the public sitting held on 17 May 2024, 18 May 2024
• Written comments of South Africa on the reply of the State of Israel to the question put by Judge Nolte at the public sitting held on 17 May 2024, 20 May 2024
• Order of 24 May 2024
  • Dissenting opinion of Vice-President Sebutinde
  • Declaration of Judge Nolte
  • Declaration of Judge Aurescu
  • Declaration of Judge Tladi
  • Dissenting opinion of Judge ad hoc Barak
• ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation)
  • Order of 16 March 2022
• ICJ, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
  • Advisory Opinion of 9 July 2004
  • Declaration of Judge Buergenthal
• UN Special Rapporteur Francesca Albanese urges sanctions on Israel, i24NEWS, 26 May 2024 (https://i24news.tv)
• Joshua Rozenberg, Punctuated with doubt, Who knows what the International Court of Justice meant?, A Lawyer Writes, 27 May 2024 (https://rozenberg.substack.com/)
• Natasha Hausdorff, No, the ICJ hasn’t ordered Israel to halt operations, The Telegraph, 26 May 2024 (https://www.telegraph.co.uk) 
• UKLFI Charitable Trust, ICJ did not order Israel to cease military operation unconditionally in Rafah, 24 May 2024 (https://www.uklfi.com)
• BBC Hardtalk’s Stephen Sackur, Former head of ICJ explains ruling on genocide case against Israel brought by S Africa, 26 April 2024 (https://www.bbc.co.uk)