The UN Supreme Court has resumed hearings on a case brought by South Africa accusing Israel of genocide in the Gaza war and calling for an emergency halt to its Rafah offensive.
Israel, which has called South Africa’s case “completely baseless” and “morally repugnant”, is due to respond on Friday.
The words of the International Court of Justice (ICJ) have been subject to intense scrutiny since South Africa brought its case, and it centers on the use of the word ‘plausible’ in the ruling.
In January, the International Court of Justice issued an interim ruling – and one key paragraph from the ruling attracted the most attention: “In the opinion of the Court, the facts and circumstances… are sufficient to support the conclusion that at least some of the Rights claimed by Africa and for which she seeks protection are plausible.”
This was interpreted by many, including some legal commentators, to mean that the court had concluded that the claim that Israel committed genocide in Gaza was “plausible.”
This interpretation spread quickly and appeared in UN press releases, statements from campaign groups and many media outlets, including the BBC.
However, in April, Joan Donoghue, the president of the International Court of Justice at the time of that ruling, said in a BBC interview that this was not what the court had ruled.
She said the purpose of the ruling was rather to declare that South Africa had the right to bring its case against Israel and that Palestinians had “plausible rights to protection against genocide” – rights that were at real risk of irreparable harm .
The judges had emphasized that they did not have to say for the time being whether there had been a genocide, but concluded that some of the acts complained of by South Africa could, if proven, fall under the United Nations Genocide Convention.
Let’s take a look at the background of the case and how the legal dispute unfolded.
The ICJ was established to hear disputes between the nations of the world relating to international law.
That means laws agreed between countries, such as the Genocide Convention, a key measure agreed after World War II to try to prevent such mass slaughter again.
Last December, South Africa launched an attempt at the International Court of Justice to prove that Israel, in its view, committed genocide in relation to the way it conducted the war against Hamas in the Gaza Strip.
It claimed that the way Israel had prosecuted the war was “genocidal in nature” because, according to the South African case, there was an intention to “destroy the Palestinians in Gaza.” Israel absolutely rejected these accusations, saying the entire case misrepresented what was happening on the ground.
South Africa should show the court clear and hard evidence of an alleged plan to commit genocide. Israel, for its part, would have the right to investigate these claims one by one and argue that its actions, in a terrible urban war, were legitimate self-defense against Hamas, which has been designated a terrorist group by dozens of countries. It could take years to prepare and argue that entire case.
South Africa therefore asked the ICJ judges to first issue “provisional measures”.
That’s the International Court of Justice’s term for an injunction: an order by a judge to freeze a situation, to prevent damage from being done, before a final judicial decision can be made.
The court was asked to order Israel to take steps to “protect against further, serious and irreparable harm to the rights of the Palestinian people.”
For two days, lawyers from both countries debated whether Palestinians in Gaza had rights that the court should protect.
The ruling, contributed by 17 judges (some of whom dissented), came on January 26.
“At this stage of the proceedings, the Court is not required to definitively determine whether the rights that South Africa seeks to be protected exist,” the International Court of Justice said.
“It only needs to decide whether the rights claimed by South Africa and for which it seeks protection are plausible.
“In the Court’s view, the facts and circumstances… are sufficient to conclude that at least some of the rights that South Africa claims and for which it seeks protection are plausible.”
After deciding that Palestinians in Gaza had plausible rights under the Genocide Convention, it concluded that they faced a real risk of irreparable harm – and that Israel should take steps to prevent genocide while these critical issues remain under discussion stay.
The court did not rule on whether Israel had committed genocide, but did its wording mean that it was convinced there was a risk of this happening? Here began the dispute over what the court actually meant.
In April, around 600 British lawyers, including four former Supreme Court judges, signed a letter to the British Prime Minister asking him to stop arms sales to Israel and citing “a plausible risk of genocide”.
This led to a counter-letter from UK Lawyers For Israel (UKLFI). The 1,300-strong group said the International Court of Justice had only ruled that Palestinians in Gaza had a plausible right to be protected from genocide – in other words, that it had faced a complex and somewhat abstract legal argument.
The dispute continued in more letters and interpretations.
Many in the first group describe UKLFI’s interpretation as an “empty pun”. The court, they argued, could not deal solely with an academic issue because the stakes were much higher than that.
And the debate crystallized into legal arguments before a British parliamentary committee, discussing the issue of arms exports to Israel.
Lord Sumption, a former judge of the British Supreme Court, told the committee: “I think this is being suggested [in the UKLFI letter] that all the International Court of Justice did was to accept, as a matter of abstract law, that the people of Gaza had the right not to be subjected to genocide. I must say that I consider that statement to be hardly contestable.”
That is not the case, replied Natasha Hausdorff of UK Lawyers for Israel.
“I respectfully insist that reading a finding of a plausible risk that Israel will commit genocide ignores the Court’s unequivocal rulings,” she responded.
A day later, Joan Donoghue – now retired from the International Court of Justice – appeared on the BBC program HARDtalk and explicitly tried to end the debate by outlining what the court had done.
“It was not decided – and this is something where I am correcting what is often said in the media… that the claim of genocide was plausible,” the judge said.
“It did emphasize in the order that there was a risk of irreparable damage to the Palestinian right to be protected from genocide. But the shorthand that often appears, namely that there is a plausible case of genocide, is not what the court decided.”
Whether there is any evidence of such terrible harm is a question the court is far from deciding.
