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Claiming the International Court of Justice found accusations of genocide against Israel were “plausible” is just false

May 21, 2024 | Greg Rose

Screenshot 2024 01 27 At 3.16.11 pm

An ABC online report on May 15 2024 by Chantelle Al-Khouri and Jake Evans misreported a decision of the UN’s International Court of Justice (ICJ) against Israel. They said that the ICJ decided that South Africa’s “accusations of genocide were plausible.” Similar language has often been used by other media outlets as well.

Australian human rights activist, member of the Australian Multicultural Council, soccer player and Socceroos past captain, Craig Foster AM, has also repeated this error. This misinterpretation of the ICJ decision is the cornerstone of his campaign to expel Israel from the Federation of International Football Association (FIFA).

Yet this is absolutely not what the judges decided in their January 26, 2024 ruling on South Africa’s request for interim measures against Israel under the Genocide Convention. Nowhere in the Court’s judgement was there any mention of a “plausible risk of genocide.”

In fact, what the Court actually held was that South Africa had a “plausible right” to the interim measures. The then-presiding judge Joan Donoghue said to the BBC program HARDtalk on April 26, “The Court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the Court.”

Judge Donoghue said that “The Court test for deciding whether to impose measures uses the idea of plausibility, but the test is the plausibility of the rights that are asserted by the applicant, in this case South Africa, so the Court decided that the Palestinians had a plausible right to be protected from genocide, and that South Africa had the right to present that claim in the Court.”

In “correcting what’s often said in the media,” she explained quite clearly that in fact “it didn’t decide that the claim of genocide was plausible.”

In a case for an ICJ provisional measure, the external factual evidence required to establish the “plausibility” of the protected right is minimal. If there is any risk of harm to a group, plausibility is found by the court. There are no tests for the threshold of risk. For the risk to be urgent, it should be real and imminent. This is a low bar and, in a humanitarian case, crossing it is largely automatic.

Journalists, and even lawyers, often misunderstand the distinction. One can sympathise with their confusion because the ICJ jurisprudence on provisional measures, as set out in its judgement delivered on January 26, is vague and indeterminate. To agree on the provisional measures, the Court employed ambiguous and abstruse language to find compromise on this exceptionally politicised issue.

 

The Provisional Measures ordered by the Court

South Africa had called upon the ICJ to order Israel to (1) suspend all military operations in Gaza, (2) ensure no further military operations, (3) prevent genocide, (4) cease acts of genocide, (5) cease displacement of Gazans or deprivation of their basic needs, (6) prevent such acts displacement or deprivation, (7) preserve evidence of Israeli offences, (8) regularly report on compliance to the Court, and (9) not aggravate the dispute.

The Court ruled, at paragraph 77, that “the measures to be indicated need not be identical to those requested.” Most significantly, the Court did not provide the requested order for an ongoing ceasefire nor find any physical acts of genocide to order a cessation or punishment thereof. It simply called for the implementation of all the Genocide Convention’s prohibitions on all such acts.

South Africa had requested nine provisional measures and was granted six, substantially different, measures. The Court ordered that Israel (1) prevent genocidal acts, (2) ensure that its military does not commit any such acts, (3) punish incitement to genocide, (4) provide humanitarian assistance, (5) preserve evidence of acts of genocide, and (6) report to the court within a month.

Judge Sebutinde dissented, writing that a call for implementation of obligations under the Genocide Convention was redundant because there were no findings of breaches of it and the obligations already exist and bind as a matter of law.

Remarkably, laws of armed conflict, customarily the dominant law, or lex specialis, in armed conflict, were disregarded in the prevailing situation of armed conflict and, to enable its jurisdiction, the ICJ disregarded the Genocide Convention’s inapplicability to armed conflict. For a brief analysis of the controversial legal reasoning behind the ICJ rulings, see the report on the judgement by this author published in the Australian Law Journal in April 2024.

In extraordinarily vague language, the ICJ did find that it was plausible that “some rights” were sufficiently at risk to need to be protected by judicial provisional orders issued. There was only one order (order number 3) that addressed a specific risk of an Israeli act of genocide affecting Palestinians and that was in relation to incitement to genocide, which is a speech crime prohibited by the Genocide Convention. Immediately following the massacres of Israelis on October 7 2023, initial statements were made by some outraged Israeli leaders that the Court considered showed a risk of such incitement. It is ironic that the allegedly inciting speeches had ceased long before the judgement ordering their discontinuance.

 

Since January

Since the judgement on January 26, South Africa has made three further requests to the ICJ for additional provisional measures. On February 12, it requested an order prohibiting an Israeli military operation in the Gaza city of Rafah, where Hamas has its main remaining military bastions. However, the Court’s decision issued in response on February 16 merely reaffirmed the earlier provisional orders.

On March 6, South Africa next requested a modification of the judicial orders to address emerging food insecurity and potential famine in Gaza. The Court did then issue additional orders on March 28 requiring Israel, inter alia, to “ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements.” A third South African application, calling for an order demanding full Israeli withdrawal from Gaza, made on May 10, is currently being decided.

 

The Use and Abuse of the Genocide Convention

All 153 parties to the Genocide Convention have rights under it, including South Africa, and could demand similar measures against Israel or any other state. Nicaragua, Colombia and Libya have each filed motions to intervene in support of South Africa. More recently, so has Turkey. Egypt has indicated that it will intervene in support also. Germany has indicated that it might intervene in support of Israel.

It should be kept in mind that some parties to the Genocide Convention, including Iran, Lebanon, Malaysia, Syria, Yemen and the UN State of Palestine, call publicly for destruction of Jews and of Israel. No UN member has brought an action against them for this incitement to genocide. Nor will South Africa challenge Egypt to honour its obligations under the dispute resolution mechanism of the African Union Refugee Convention and allow Gazans fleeing the war to enter Egyptian territory, because Pretoria’s concern is not for Gazan civilians.

We see in South Africa’s litigation against Israel a paradigmatic case of international “lawfare”. Lawfare is a means to weaken an adversary, to achieve objectives similar to those of traditional warfare, in a grey zone of conflict below armed hostilities. It is effective in helping promote arms embargoes, trade boycotts and cultural isolation when directed against a law-abiding state integrated into the international legal and trading system.

Lawfare characteristically also undermines laws by instrumentalising them for purposes other than their originally intended objectives. South Africa is subverting the laws of genocide and of armed conflict in furtherance of its alliance with Hamas and Iran.

Israel’s conflict with Hamas and its sponsors will be a long multifaceted war. The unfolding story is a wider conflict than one over the international legal order. It is actually between the liberal democratic world and a renascent totalitarian alliance attempting to employ the rules of the liberal world order as a weapon against that order.

Greg Rose is a Professor of Law at the University of Wollongong, a director of research for The Hague Initiative for International Cooperation and a visiting AIJAC Fellow. 

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