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International Court of Justice Orders Israel to Immediately Halt Military Offensive in Rafah

Web ExclusiveMay 24, 2024
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The International Court of Justice has ordered Israel to halt its military offensive in Rafah. The court ruled on Friday that Israel must immediately cease its military actions and other operations in the area, citing the “immediate risk” to the Palestinian people. South Africa sought additional measures from the court following Israel’s ground offensive in Gaza’s southernmost city. Following a case brought by South Africa accusing the country of genocide, the court issued provisional measures in January which stopped short of ordering a ceasefire. We speak with Egyptian human rights activist Hossam Bahgat, founder and executive director of the Egyptian Initiative for Personal Rights, and Reed Brody, war crimes prosecutor and human rights attorney.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. I’m Amy Goodman.

The International Court of Justice has ordered Israel to halt its military offensive in Rafah. The court ruled today that Israel must immediately cease its military actions and other operations in the area, citing the immediate risk to the Palestinian people. South Africa sought additional measures from the court following Israel’s ground defensive into Rafah. Following a case brought by South Africa accusing Israel of genocide, the court issued provisional measures in January, which stopped short of ordering a ceasefire.

For more, we’re joined by two people. Here in our New York studio, Hossam Bahgat is with us, Egyptian human rights activist, founder and executive director of the Egyptian Initiative for Personal Rights, EIPR, in Cairo. And we’re joined by Reed Brody, human rights attorney, war crimes prosecutor, author of To Catch a Dictator.

Reed, we’re going to begin with you. Can you talk about the significance of the International Court of Justice’s ruling today?

REED BRODY: Well, this is just huge. You know, the International Court of Justice, South Africa has been asking the court to order Israel to halt its military activities since the first attempt in January. And the court has never wanted to do that, because Hamas is not before the court. You don’t want to order one side to do something. And the situation has gotten so bad, and particularly in Rafah, that the court has risen to the occasion, and the court has given very, very specific orders this time. In the past, the court said, “Don’t do anything that’s going to violate the Genocide Convention. You know, don’t — preserve everybody’s rights.” And here, this time, they have said very clearly that Israel must immediately halt its military offensive in the Rafah governorate. Very clear. It also said, “You must open the Rafah crossing. You must allow in international fact-finding missions approved by official bodies.” So these are very clear orders. The court really has stepped up to the plate here.

And, you know, these are almost unanimous rulings, [inaudible] 13 to 2, including all the West, including the U.S. judge, Sarah Cleveland, including all of the Western judges.

And this is going to be very difficult for Israel, and particularly for Israel’s allies, who are — you know, Israel has not been impressed so far by what the ICJ has ordered them to do, but it’s increasingly going to isolate Israel, particularly this one-two punch we have. On Monday, the International Criminal Court broke new ground, as the prosecutor, for the first time ever, sought warrants for war crimes and crimes against humanity. And now you have another court in The Hague at the end of the week making these very specific, uncomfortable, unusual orders to Israel.

AMY GOODMAN: But what kind of enforcement does the International Court of Justice have?

REED BRODY: Well, these are binding orders, and the court made it very clear. They didn’t need to, because it’s in the statute, but the court made it clear that these are binding legal orders. Israel is under an international binding legal obligation to halt its military offensive in the Rafah governorate.

Now, the only enforcement mechanism available in the entire international community is the Security Council. And, of course, we know that the United States has a veto at the Security Council. But that veto is going to be hard. That’s going to — there’s going to be a huge political cost to the United States to exercise this veto. I mean, all of this, this entire situation, is exacting a huge political cost to Israel and to the United States as they become increasingly, increasingly isolated, as they try to seek countries to stand up to Russian aggression in Ukraine and Russian crimes in Ukraine to be defending Israel. And particularly, more and more — I mean, we saw this week, of course, three European countries recognize — say that they were going to recognize Palestine. The U.S. is becoming increasingly isolated here.

AMY GOODMAN: Hossam Bahgat, you are a leading human rights advocate in Egypt, just released after an eight-year travel ban there. You’re sitting with me here in New York. You watched the court decision. What most struck you?

HOSSAM BAHGAT: I am struck, of course, by the majority, including judges that we know have been on the fence. This is 13 out of 15, really. And —

AMY GOODMAN: Israel and Uganda ruling against.

HOSSAM BAHGAT: Yes. But also, as Reed just said, the specificity this time. I mean, these are not open for interpretation. I mean, we have basically the court, in its reasoning, saying the situation has changed since January, the situation has changed since the last measures in March, in the last two months, that everything the court said it had feared has actually come to be materialized right now, that there is a risk of irreparable harm to Palestinians and that the situation is urgent, and that the previous provisional measures need to be modified. So, they basically considered, I mean, on all of these — I mean, endorsed all of these arguments put forward by South Africa.

But then, when we see the modifications, the new provisional measures, it is — again, it is not just — we have to look carefully at the wording. It is not for Israel to immediately halt its Rafah military offensive, but its military offensive and any other action that could contribute to the genocide, the destruction of Palestinians, or to situation of life that could lead to the destruction of life in Palestinians. That is key. And it is important not just for Israel, but also for the United States, because we have seen this dance that the Biden administration and the National Security Council keep giving us for the last couple of weeks, which is that Biden’s red line has not been crossed, because it’s not a comprehensive offensive in Rafah, right? The court is saying that it doesn’t need to reach the level of a military offensive. Any other action in the Rafah area, including the evacuations, including the bombing of shelters, including the nonexistent, you know, protected or safe areas, but including also the denial of aid and access to the area, all of this would constitute a violation of the Genocide Convention, to which both Israel and the United States are parties. And this is the ICJ, so they cannot say, “We don’t recognize this court,” or that, you know, it’s one-sided, or that, you know, it’s the moral equivalency and all of this. This is a court that not only has a U.S. judge, but that had the full participation of the Israeli government in all its proceedings.

And when it comes to the aid question, it is just as specific. It is not to, you know, allow or even increase humanitarian aid. It is for Israel to take effective measures to maintain the crossings open, specifically the Rafah crossing. And the wording here is “unimpeded, at-scale” provision of humanitarian aid. So, Israel cannot just, you know, allow in the 100 trucks a day and say, you know, “We’re letting it in.” It has to be unimpeded, and it has to be at scale, for us to reverse the famine that has already started in parts of Gaza and now risks the entirety of Gaza.

And on the entirety of Gaza — this is the third important point — is that the court reaffirmed all its previous provisional measures that apply to all of Gaza, not just to the Rafah. So, while these new measures are specifically linked to the military offensive or any other action on the ground in Gaza and the Rafah crossing, the previous ones, that have just been reaffirmed, again, by a majority of the court, including the U.S. judge and all of the Western judges, apply to the entirety of Gaza and are binding to Israel, as well as any other governments that have been and continue to be in complicity, like the United States and Germany. So, this is really important.

And what I expect in terms of enforcement, I expect, you know, a group of countries to immediately call an emergency session of the Security Council, without waiting for the report in one month by Israel on its measures of implementation, to really call on Israel to immediately implement those new measures. And many of them are actually in line with what the U.S. government is publicly saying. So, let’s see what the U.S. government does this time, because I think this veto is going to be more costly than any of the previous ones for the United States. This is not one that the United States is going to easily exercise its veto power over.

AMY GOODMAN: Hossam, talk about Egypt. You’ve just come from Egypt. What should Egypt be doing at this point, from your perspective as a leading human rights advocate there?

HOSSAM BAHGAT: This is the moment for Egypt to change course. They have to seize this moment, because the new provisional measures, you know, whether or not the Egyptian government wanted it, they just made Egypt a party to the case. The measures are about keeping the Rafah crossing open, are about unimpeded and at-scale provision of humanitarian aid. These are measures that can only be implemented if the Egyptian government does not give Israel an exit, does not give Israel the appearance of, really, you know, partial opening of Rafah or, you know, the trickling of aid into Gaza, as we have seen in the last seven months.

For the first seven months of the war, we have been calling on Egypt to not accept those terms imposed by Israel on, you know, people coming out of Gaza or into Gaza, on allowing journalists and investigators into Gaza, or accepting the so-called inspection mechanism that the U.S. and Israel have created in order — that have led to this manmade famine in Gaza. Only recently, when Netanyahu and his Cabinet ordered the operation into Rafah, crossing Egypt’s so-called red line, did Egypt announce that it was going to stop its coordination with Israel on the access of military aid, therefore giving the responsibility — putting the responsibility entirely on the shoulders of the Israeli government when it comes to the humanitarian situation.

Egypt needs to stand by this position and really act as if it is party to this case, and work with South Africa, with a group of countries, a coalition of countries, to the Security Council, to make sure that these measures are implemented immediately. The halt is not just on a military offensive, but any actions on Rafah that could contribute to this partial or full destruction of Palestinian lives in Rafah, but also all the previously announced provisional measures. Egypt must immediately announce that it will allow investigators, fact-finding missions, commissions of inquiries from all U.N. organs, including the ICC, to cross into Gaza, in implementation of today’s provisional measures. And then it is on the Israeli army whether or not to let them — to allow them access, to turn them back, to impede their access. Egypt must fulfill its part of these provisional measures, because they can only be fulfilled with Egypt’s cooperation for geographical reasons.

AMY GOODMAN: I’m just looking at Reuters. And, you know, this is all breaking news as we’re doing this interview. Israel’s Finance Minister Bezalel Smotrich said that those who demand Israel stop the war are demanding it should decide to cease to exist, and Israel will not agree to that. An Israeli government spokesperson said, on the eve of Friday’s decision, that no power on Earth will stop Israel from protecting its citizens and going after Hamas in Gaza. Your response, Hossam?

HOSSAM BAHGAT: Well, the court has spoken unanimously This is the world’s top court. If these measures, if the military offensive or any other action in Gaza, if the policy of impeding humanitarian aid — if they continue, they would plausibly constitute a violation of the Genocide Convention. That is the international crime of genocide. This is now the legal reality. It will certainly affect the ongoing ICC investigation, which has so far fell short of charging the crime of genocide when it comes to both Israel and Hamas. It is now up to not just the Israeli government, but also all its Western backers, to really show on which side they are going to stand, but also carry the legal responsibility that will come with aiding and abetting the crime of genocide, which the court reaffirmed today was plausibly being committed in Palestine.

AMY GOODMAN: I should also quote the Israeli Cabinet minister Itamar Ben-Gvir. In the past, of course, he himself was convicted of aiding a terrorist group and of inciting anti-Palestinian hatred. He said, “The order of the antisemitic court in The Hague should have only one answer — the occupation of Rafah, the increase of military pressure and the crushing of Hamas, until the complete victory in the war is achieved.” Your response to not a fringe government official in Israel, but a member of the Cabinet and the war cabinet, a key to Prime Minister Netanyahu remaining prime minister?

HOSSAM BAHGAT: OK, two points here. Of course, the continuing and revolting weaponization of the charge of antisemitism when it comes to describing — again, this is not the ICC. This is the world’s top court, part of the U.N., the highest legal body of the United Nations, with judges nominated by their governments, from the United States, from Germany. All the Western judges joined today’s decision and today’s provisional measures.

And secondly, I refuse — I’ve been hearing this, especially on this trip, all the time. This is not a Netanyahu problem. This is not a Smotrich and Ben-Gvir problem. There is just, you know, this — I mean, they are the ones that maybe these two ministers, you know, call it like it is and, like, say the quiet part loudly. But we have to look also at the Israeli political landscape, all the political parties that are currently represented in the Knesset, and, you know, see, like, how many of them are opposed to the current conduct of the war, how many of these parties are officially, you know, endorsing the two-state solution. It takes one look to see that, you know, if the Netanyahu government falls, if these two ministers quit and this coalition is changed, who do you think is going to form the new Israeli government? And what are going to be their views? And apart from this, I mean, we can just look at the Israeli public opinion, you know, the polls conducted by reputable Israeli pollsters and public opinion survey organizations, to show that also Israeli public opinion is opposed currently to a ceasefire. So, yes, of course, we need to point the crazies, but only because they say the quiet part loudly, but this is a problem that goes far beyond them.

AMY GOODMAN: Hossam Bahgat, if you can talk about the fact-finding mission they have demanded be allowed into Rafah right now? Who exactly are they talking about? International reporters are banned from Gaza by the Israeli government.

HOSSAM BAHGAT: The language the court used is quite broad. They said any commission of inquiry, any fact-finding mission, any investigation commissions that are mandated by any U.N. organs must be allowed in for the specific purpose of the preservation of evidence, so that the court or any other investigation in the future can establish on the merits whether the crime of genocide or other grave violations of international humanitarian law have been committed.

There is, of course, an International Commission on Human Rights in the Occupied Palestinian Territories that was formed by the Human Rights Council and is led by, you know, the South African judge, Navi Pillay, who is the former high commissioner for human rights. And, of course, the Israeli government has refused to collaborate with that international commission. There is, of course, the U.N. special rapporteur on human rights and the entire system of U.N. human rights rapporteurs. But then, most importantly, there is the teams of the ICC Office of the Prosecutor, who have visited Israel but have not yet, to our knowledge, visited Gaza or been allowed access to Gaza. The ICC prosecutor, Karim Khan, early in the war, visited the Rafah area, held a press conference there, and, again, did not go in, was not allowed in. For his investigation to continue and to succeed, his team needs to be on the ground and needs to be not just collecting evidence, but making sure the evidence is preserved. And now he has the ICJ court order today to guarantee this right, and it is binding to the state of Israel.

And again, it is an opportunity for Egypt to seize this moment and announce that, you know, on the Egyptian side, the border is open, Rafah is open, the international investigative teams are welcome to come in and go into Gaza.

AMY GOODMAN: Could Egypt open up other crossings into Gaza?

HOSSAM BAHGAT: Rafah is the only crossing that Egypt has with Gaza. I mean, the Kerem Shalom crossing is with the state of Israel and under Israeli control.

AMY GOODMAN: We just saw another report. This is from Middle East Eye, and it says, “Egyptian army turns to Sinai tribes to prepare for influx of Palestinians from Rafah.” Do you know anything about this?

HOSSAM BAHGAT: This is, of course, a very worrying development. This is a new body composed of Sinai tribes that had in the past cooperated with the Egyptian Army in its operation against the ISIS in Sinai. And, of course, they were engaged in some documented acts of extrajudicial killings, but also the conscription of children in armed conflict.

The problem is, these are the same people that have been also behind the, again, very widely documented and reported now, war profiteering. These are, you know, the people running the front companies that are charging exorbitant amounts of, you know, thousands of dollars from each Palestinian member of a Palestinian family in order to be allowed access to Egypt.

And now these are the people that, you know, have been — have received sort of the official endorsement to form something called the Union of Arab Tribes. And, of course, everyone is concerned about the risk of creating this type of, you know, militia-like body in Sinai. And we have seen, of course, what that led to in other countries and in different situations. And many political parties and political activists and civil society voices have spoken out and to raise serious concern about, like, any endorsement, official endorsement, or acceptance of such a militia-like presence in Egypt.

AMY GOODMAN: Reed Brody, the war crimes prosecutor, talked about the one-two punch this week. It started with the International Criminal Court chief prosecutor Karim Khan announcing that he’s pursuing arrest warrants for the Israeli prime minister, the defense minister, as well as three Hamas leaders. And again, just to be clear who Karim Khan is, he was Israel’s choice in 2021 to be the chief war crimes prosecutor.

HOSSAM BAHGAT: Officially, of course, Israel does not accept the jurisdiction of this court. But, of course, there were serious concern raised at the time about, you know, where new prosecutor, or, back then, the candidate, Karim Khan, would stand on two very sensitive investigations that were active situations before the court. One is Afghanistan, and the other was Palestine.

It’s important to know that when it comes to the ICC, the mandate it has, the investigation that is open right now is not just linked to Gaza and was not just opened after October 7th. The court accepted Palestine as a member state and accepted to look into the Palestine-Israel situation for the period starting from 2014, from Operation Cast Lead, you know, including the violence related to the Right of Return marches. And then, of course, that, you know, included — was expanded to include the actions after October 7th.

So, yes, of course. I mean, the timing is very important to have these two processes yield these concrete results, although, of course, the ICC arrest warrants only remain a request, an application right now, that has to be accepted by the pretrial chamber. But it’s important to note that the ICC investigation has been open for years.

AMY GOODMAN: And then you have Antony Blinken, the Biden administration — of course, Blinken, secretary of state — suggesting he’s working with lawmakers in the U.S. on potential sanctions against Karim Khan and the International Criminal Court for saying they’re bringing these charges against Netanyahu.

HOSSAM BAHGAT: Yes, and Lindsey Graham telling the Senate, you know, “If we allow these arrest warrants, we are next.” And, you know, again, this is the quiet part being said out loud. And it’s really a sad moment, but also a revealing moment, when you have people in this administration, the Blinken State Department, which has an ambassador at large for global criminal justice, whose only job is to promote global accountability and, you know, the ICC and the kind of protections and investigations from these mass atrocities. You know, I mean, that we see this public and blatant disregard for international norms, and even an openness, a willingness to work on punishing ICC judges — and, you know, as some members of Congress said, and their families — for really doing their jobs, is just a sad moment for this country.

AMY GOODMAN: So, Hossam, as we wrap up this interview, once again, the significance of the court’s ruling, the International Court of Justice, and what you expect to see in the coming weeks?

HOSSAM BAHGAT: First of all, we expect like every country in the world to come out forcefully to endorse these new provisional measures and emphasize that they are legally binding, effective immediately. And that should include, you know, the governments of Germany and the United States, because that is what the court laid down clearly today.

I expect a group of countries to move to urgently convene the Security Council to, you know, discuss and debate these new provisional measures. You know, that may or may not include a new draft resolution, given, of course, the chances of the United States yielding its veto again.

But what is important to watch right now is also what Egypt is going to do in terms of its part of these provisional measures, specifically related to allowing the unimpeded access of United Nations investigators and fact-finders for the preservation of evidence and the unhindered, at-scale provision of humanitarian aid through an open Rafah crossing.

These are the signs, really, to watch on the ground. But again, the emphasis should be that the court did not only say immediately halt the Rafah military offensive, but also any other action in Rafah that could lead to the worsening conditions and the destruction of the Palestinian lives in Gaza, in part or in full.

AMY GOODMAN: Hossam Bahgat, we want to thank you so much for being with us, founder, executive director of the Egyptian Initiative for Personal Rights, the EIPR, based in Cairo. And I want to thank Reed Brody, at the top of this discussion, human rights attorney, war crimes prosecutor, author of To Catch a Dictator. This is Democracy Now!, I’m Amy Goodman. Thanks so much for joining us.

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