‘Plausibility’ in the South African genocide case against Israel is not what it seemed
The ICJ’s ruling found that the Palestinians had a ‘plausible right’ to be protected from genocide under the Genocide Convention, not that genocide was plausibly taking place
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The former president of the International Court of Justice, Joan Donoghue, clarified in a recent interview the exact implications of the court’s interim ruling in January on South Africa’s allegations that Israel is committing genocide against the Palestinians in Gaza.
Donoghue, who presided over the hearings and the issuing of provisional measures by the court against Israel, sought to clarify a misunderstanding about the nature of the ICJ’s January decision and the court’s orders, and stated explicitly that the ruling did not mean that the court believed it was “plausible” that Israel was committing genocide.
In its January 26 interim ruling, the court stated that “the facts and circumstances” of the case “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…”
Many legal scholars, and numerous media outlets, asserted following that ruling that the upshot of the decision was that the ICJ was stating that there was “plausibility” to South Africa’s allegations that Israel was committing genocide against Palestinians in Gaza.
But Donoghue in an interview with “BBC HARDtalk” said that was not the case.
“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,” said the recently retired ICJ president.
“It then looked at the facts as well, but it did not decide… that the claim of genocide was plausible. It did emphasize in the order that there was a risk of irreparable harm to the Palestinian right to be protected from genocide.
“The shorthand that often appears, which is that there is a plausible case of genocide, isn’t what the court decided.”
Not based on its merits
According to Prof. Robbie Sabel, an expert in international law at the Hebrew University’s Faculty of Law, Donoghue was trying to underline in the interview that the interim ruling had nothing to do with the merits of the case as to whether or not genocide is being committed.
Instead, Donoghue was saying, the meaning of the ruling was merely that the Palestinians have the right to be protected from such acts and the court has the authority to intervene if that were the case, as asserted by South Africa.
“What she was saying was ‘We didn’t say there is about to be genocide. But if there is, then the rights of the local population would be affected,’” said Sabel.
“There’s fighting, there’s danger, it’s become more plausible that there will be a danger of genocide, and that can be protected.”
Although this would seem to be self-evident, the reality is that the court has a very low threshold for issuing provisional measures, in this case simply establishing that the claims South Africa made against Israel do indeed come under the principles of the 1948 Genocide Convention.
‘Nothing to celebrate here’
But Prof. Eliav Leiblich of the Buchmann Faculty of Law at Tel-Aviv University said the second aspect of Donoghue’s comments regarding what she said was “the risk of irreparable harm to the Palestinian right to be protected from genocide” indicated the court is nevertheless still concerned that the rights of the Palestinians under the Genocide Convention may have been, or may be, violated.
The ICJ noted in its January 26 orders that it has the power to indicate provisional measures “when irreparable prejudice could be caused to rights which are the subject of judicial proceedings,” in the South Africa case the right of the Palestinians to be protected from genocide.
“The power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision,” the ICJ order reads.
“The Court considers that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision,” it said of the circumstances in Gaza in January by way of justifying its issuance of provisional measures against Israel.
Said Leiblich, “So, on the one hand it is correct to say that the ICJ didn’t say directly [there is a] “plausible genocide,” but on the other hand it said directly that the rights under the Convention are in danger of irreparable harm, so there’s nothing to celebrate here really.”
“She said the right of the Palestinians to be protected is in danger,” insisted Leiblich regarding Donoghue’s comments.
Gaza’s humanitarian situation and the Genocide Convention
The focus of the ICJ’s concern with Israeli action in Gaza in its January 26 order was very much the humanitarian situation in the territory, and by extension the clause in the Genocide Convention which states that “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” is an act of genocide.
The court order quoted numerous officials from UN agencies and the World Health Organization on the potentially deadly effects of the lack of humanitarian aid in Gaza and the collapse of the Gazan health system.
And the ICJ’s major operative order regarding the situation on the ground dealt with that issue, instructing Israel to provide “urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”
That issue has remained a source of concern for the court and for the US, with President Joe Biden warning Netanyahu in April that he would pull his support for the war if more humanitarian aid was not allowed in.
This followed an updated order from the ICJ on March 28 to Israel to increase the supply of humanitarian aid to Gaza to alleviate what it said was the “catastrophic living conditions of the Palestinians in the Gaza Strip” and the “prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Strip have been subjected.”
The Biden administration said at the end of April that Israel had taken “significant steps” to improve the supply of humanitarian aid to Gaza, but US Secretary of State Antony Blinken said, however, that “it is not enough. We still need to get more aid in and around Gaza.”
With Israel shutting down the key Kerem Shalom goods crossing Sunday after a deadly Hamas attack close to the facility in which four soldiers were killed, and an IDF assault against the city of Rafah now seemingly imminent, legal scrutiny of Israel’s actions will remain a key feature of this conflict, and its aftermath.
