Even though I do not find it plausible that the military operation is being conducted with genocidal intent, I voted in favour of the measures indicated by the Court. To indicate those measures, it is not necessary for the Court to find that the military operation as such implicates plausible rights of Palestinians in the Gaza Strip. My decision to vote in favour of the measures indicated rests on the plausible claims by South Africa that certain statements by Israeli State officials, including members of its military, give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention (see paragraphs 50-52 of the Order).
Judge Georg Nolte, Declaration (para. 15)
The celebrated French existentialist philosopher Jean-Paul Sartre is credited with having coined the incisive aphorism “Words are loaded pistols”. Like weapons, when hitting the intended target, words have the capacity to affect opinions and behavior. And like bullets, once they leave the chamber, once uttered and heard by the intended audience, they are irretrievable. Yes, they can be retracted and repackaged and recalibrated, followed by a contrite mea culpa or transparently trite excuse, but effectively the desired effect in uttering the words in the first place remains. Ominously, when words are uttered – intentionally, recklessly, or carelessly – by high-level officials and respected members of a community and revered military officers (whether active or retired), the potential to inspire, induce, and incite to act in a desired fashioned is rather high. Unintended interpretations of words can also lead to unintended greenlighting of impermissible actions, not to mention unavoidable implied impressions generally formed from actions followed from words.
That protective measures were in the offing in the case of South Africa v. Israel should have been obvious from listening to the presentations of Max du Plessis and Blinne Ní Ghrálaigh KC of the South African legal team. The writing was on the wall that some measures would be ordered after Vaughan Lowe KC’s virtuoso presentation. Focusing the judges on the issues at hand, he skillfully demonstrated why immediate protective measures were necessary and within the International Court of Justice’s (ICJ) obligation to order them.
No convincing argument was ever made against Israel’s right to self-defense militating for a total cease fire. Assuredly, it would not have been mutually accepted or adhered to by those who carried out the attack of 7 October 2023 and the ensuing massacres, rapes, and kidnappings of innocent Israeli civilians. This advocated measure was always a non-starter. But the clarity with which Lowe articulated, or shall I say tied together, the evidence and reasoning for immediate injunctive relief – irrespective of the final outcome of the case – was masterful. Indeed, of all presentations on both sides, his presentation – substantively and stylistically – was impressively flawless.
In my view, genocidal intent cannot and will not be inferred from the evidence marshalled, presented, and argued by South Africa. Violations of international humanitarian law most likely yes, but that is beyond the remit of the ICJ. When it is all said and done, based on the totality of the evidence and the application of relevant jurisprudence, the ICJ will not conclude that Israel committed genocide or any of the Article III prohibited acts. That said, I am convinced that the evidence presented informs that the rights the ICJ is called upon to protect are plausible and that there is a real and imminent risk of irreparable injury to the Gazan Palestinians.
Despite Israel’s weighty and substantive response to the Application (most notably the master class presentations of Tal Becker and Malcolm Shaw KC), based on the totality of the evidence – the acts by which Israel has prosecuted the war, its justifications for its methods, its near indiscriminate destruction of anything it believes is an obstacle to its mission of eradicating Hamas, its inadequate protection of civilians and effective denial of basic humanitarian relief, and so on – lead me to conclude that Israel’s acts are capable (though not inevitable) of violating its obligations under the Genocide Convention. Hence the need for injunctive relief until the judgement on the merits is rendered years from now.
Watching the hearings, I am struck by Israel’s failure (and that of Israeli ad hoc Judge, Aharon Barak’s Separate Opinion at paras. 36-37 and Judge Julia Sebutinde’s Dissenting Opinion at para. 22), to fully and convincingly appreciate the gravity of the profoundly incendiary, irresponsible, and inciteful statements by high-level Israeli government officials and military echelon. Some of them were made in the heat of the moment. Some, however, were made with cool and concerted retrospection. Whether those officials and military officers had the authority to make those statements or were authorized by the Israeli government is no excuse for the Israeli government’s failure to immediately denounce them as not representative of official policy. Deliberately letting those statements stand, declining to publicly distance itself from them, failing to rebuke those who uttered the statements, lends to the inevitable perception of acquiescence and approval by the Israeli government.
We will never truly know the impact of these statements. But a couple of examples seem indicative of greenlighting inappropriate and unlawful behavior.
The first is the increasing attacks on and killings of West Bank Palestinian civilians by radical Israeli settlers, which, at least at the beginning of the war, were tolerated with impunity. Finally, US President Biden – who has been backing the Israeli government’s prosecution of the war as it sees fit, and has pushed for more aid to Israel, including military hardware – has decided to impose sanctions on settlers attacking Palestinian civilians.
The second is more telling of what happens when high-level officials and military officers foster a dehumanizing climate through rhetoric – when civilians and combatants are claimed to be one. The unlawful killing of the three Israeli hostages serves as a poignant example. Perhaps the soldiers panicked. Perhaps this was just a renegade group serving with the otherwise well-behaved Israel Defense Forces (IDF). Or perhaps the constant dehumanization of Hamas and Gazan Palestinians as being one and the same (President of Israel, Isaac Herzog), along with the inflammatory and intemperate rhetoric from the very top civilian and military echelon, fostered misguided assumptions that in this war – where the threat is existential, and the enemy “human animals” (Defense Minister Yoav Gallant) – the rules of distinction don’t apply. Don’t get me wrong, I am not smearing with a broad brush all IDF soldiers. I am just pointing out the fact that irresponsible rhetoric can lead to irresponsible action – not that I am claiming to any degree of certainty – that in this instance there is a direct link between the rhetoric from the top and the actions of these solders that killed the three Israeli soldiers waiving a white flag.
Ultimately, will those statements be the linchpin to or support for findings that Israel’s military actions in the Gaza Strip were committed with genocidal intent – the intent to destroy at least a substantial part of the Palestinian national, racial, and ethnical group, i.e., the Gazan Palestinians? The answer must be an emphatic no! At this stage, no credible inference of genocidal intent can be drawn from those statements. They may have contributed to serious violations of the laws of war, but not genocide.
In light of the horrific events of 7 October 2023, should these statements – viewed in the context of how the war is being prosecuted and the potential realizable outcomes (i.e. the permanent de-Palestinianization ofthe Gaza Strip) – not give pause militating in favor of protective measures, despite Israeli protestations to the contrary? The answer is an emphatic yes. As Judge Georg Nolte appropriately noted in his Declaration, Israel did not “satisfactorily address highly problematic forms of speech by some of its officials, including members of its military” (para. 6).
I am not certain how Israel convincingly could – not when it took South Africa’s Application, as the wake-up call to impress upon the Israeli government the harmful impressions and inferences and incitements these statements caused. Its silence, its failure to immediately recognize the problem – to condemn the statements, to rebuke the authors of them, and to renounce them as not representing officially or unofficially the government of Israel’s and the IDF’s position – was not lost on the majority.
Recognizing and renouncing such statements only after they were brought to its attention by way of the Application indicate a lack of appreciation, an indifference, or wort yet, tacit approval. This may seem inconsequential considering the steps the Israeli government ultimately announced (e.g. (letting in more humanitarian aid after the Application was filed), but it is actions, or more precisely, inactions, that tipped the balance in favor of ordering protective measures – even if some are of an anodyne or prophylactic nature.
The statements were and remain toxic. They come dangerously close to promoting indiscriminate killing of civilians and mass displacement if not outright ethnic cleansing. The officials and officers who made these statements, in the open, are sophisticated and experienced. These were not off-the-cuff remarks, or slips ‘twixt the cup and the lip. They were calculatedly made. Actions followed: cutting off all water, electricity, fuel, medical supplies, and turning the Gaza Strip into a wasteland so unbearable and unsafe, fostering a climate of death and despair to be avoided by leaving.
There is no direct evidence that ethnic cleansing is an intended official policy of this Israeli government. Policies, however, need not be stated; circumstantially they can be inferred. Actions speak. In times of war actions can gain momentum leading to unintended consequences (though welcomed by some even if unexpressed) as can be seen with the risk of a massive Palestinian exodus (forcible transfer/deportation) from the Gaza strip. Impressions raise questions of intentions and motivations, influencing conclusions. Or as I like to put it, the truth tends to be whatever the beholder subjectively perceives it to be, not necessarily what an objective analysis of the facts prove it to be.
The toxic rhetoric was tolerated if not encouraged by the government. Even if not rising to the level of incitement (where action is immediately followed; see my posts on the Šešelj Appeal Judgment and review of Wilson’s Incitement on Trial), the toxicity that lingers is consequential. Thus, it should not have come as a surprise to any careful observer that 15 of the 17 judges concluded “that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible”, 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 [of the Genocide Convention].”
It is virtually certain that even absent the impugned statements by high-level Israeli government officials and military echelon, South Africa would have nonetheless submitted an application to the ICJ. Whether the ICJ would have found the need to order protective measures is unclear. My guess is that some of the measures would still have been ordered. The optics of what is happening in the Gaza Strip are so devastatingly compelling for something, anything, to stop the destruction, the suffering, and the deaths of innocent civilians, doing nothing, imposing no measures, was probably never much of an option. That said, we can infer from Judge Nolte’s insightful Declaration that at least he would have also followed in the footsteps of dissenting Judge Sebutinde – though for more nuanced reasons.
Were things to continue as they had up until the filing of the Application, and were this Israeli government left unchecked and unrestrained, the plausibility of things spiraling out of control, resulting in a destruction of a substantial part of the Palestinians, namely the Gazan Palestinians, is seemingly realistic. Even without genocidal intent, the inevitability of this destruction of the Gazan Palestinians, could, as I’ve noted in my previous post on the Application, have genocidal consequences. Doing nothing was not an option – not when considering the ICJ’s raison d’être.
Now for some general observations on the Order, Declarations, Separate Opinion, and Dissenting Opinion (all available here).
Overall, the Order is spartan. Considering the limited purpose of its remit at this stage, it sufficiently serves its purpose. All of the measures ordered are reasonable. Measures 1 and 2 ask Israel to abide by its obligations under the Genocide Convention. These are obligations which Israel is abiding by. There is no evidence (direct or circumstantial) showing that the Israeli government is acting contrary to its obligations. Its methods might be unreasonably (as opposed to unlawfully) callus and destructive, but there is no known proof (thus far), that any of the actions taken were with genocidal intent. What must be kept in mind is that this is a war against unlawful combatants using terroristic means, including using civilians and protected areas as unlawful shields from which to launch attacks. Israel did not start this war. It did not choose the venue. Since Israel was attacked, it has the right to use whatever lawful means necessary for self-defense. The fact that civilians are caught in the middle, and that the civilian suffering and casualty numbers are high, does not necessarily translate into genocide.
Measure 3, to prevent and punish public incitement is eminently reasonable, even if there is domestic legislation calling for such measures. I’ve belabored this point enough.
Measure 4, calling for the passage of more humanitarian relief is absolutely essential even if more relief is being allowed in (especially after the Application was filed). Had the Israeli government and the IDF been less draconian to the point of displaying utter indifference to the inhumane conditions from its actions, perhaps the Application would not have been filed. For sure Israel would not have lost the sympathy it rightly and deservedly garnered after 7 October 2023, and would not have outright lost the public relations war against Hamas.
Measure 5, preventing the destruction of evidence, in not an unusual request even though there is no evidence that Israel is destroying evidence. This is a rather common measure imposed by courts the world over as a prophylactic. More can be read into this, but based on what we know, there is no need to speculate. Compliance is not going to tax the Israeli government, whereas non-compliance will have consequences.
Measure 6, reporting back to the ICJ in a month, is actually in Israel’s best interests. After all, it did show up, made an impressive presentation, appointed an ad hoc judge of high esteem, and by all accounts, is doing everything necessary and reasonable to acquit itself of the allegations that it is committing genocide in pursuit of defending itself against an enemy not a party to the process.
Of the Declarations, the one that stands out is that of Judge Nolte’s. He frankly acknowledges that what “plausibility” entails – in the context of the rights South Africa wants to protect under the Genocide Convention – is unclear (para. 10). He does, however, point to jurisprudence suggesting that some evidence must be provided supporting the allegations, “including indications for the purposes of any essential mental elements,” which he finds “indispensable at the provisional measure stage of the proceedings involving allegations of genocide” (paras. 10-11). Cogently he walks though his reasoning, giving us insight on how he processes the law and ultimately ends up in joining the majority on all measures. This is a real treat in the sense that advocates get an opportunity to see how this judge approaches the craft of judicial reasoning.
Also instructive are his from the bench observations:
It is regrettable how much the Parties talked past each other during the oral proceedings. South Africa hardly mentioned the attack of the 7 October 2023 and the ensuing massacre; Israel barely mentioned the United Nations reports on the humanitarian situation in the Gaza Strip; South Africa hardly mentioned the efforts by Israel to evacuate the civilian population from areas of hostilities; Israel did not satisfactorily address highly problematic forms of speech by some of its officials, including members of its military (para. 6).
These observations point to elementary principles of trial and appellate advocacy. Weaknesses in the case, troubling facts, and contextualization of arguments are essential whether in written or oral advocacy. Indeed, the better approach is to not only acknowledge whatever may be relevant to the opponent’s position (and likely to be raised), but to argue its case persuasively as if advocating the opponent’s position, and then, having established the tempting nature of the opposing arguments, proceed by exposing the shortcomings and providing plausible alternatives. An acknowledgement of disconcerting facts beyond change builds credibility and offers opportunities to qualify and ameliorate.
Judge Sebutinde’s Dissenting Opinion is somewhat of a mixed bag. I give her credit and award her the badge of judicial courage for standing on her principles based on her understanding of the law as opposed to following along with her peers. That said, Judge Sebutinde gets off track from the get-go, giving the impression, at least to me, that she misapprehends the nature and purpose of the Application. She sees the war, its causes, and its ramifications as historically a political one to be resolved through diplomacy (opening para. and paras. 4-11). I agree that the Palestinian homeland question needs to be resolved diplomatically. And while historically a political (and legal) question, the events of 7 October 2023 in Israel and thereafter in the Gaza Strip (and Israel) touch on legal questions that can only be resolved before judicial institutions with the requisite jurisdictional authority. Perhaps I am mistaken, but it seems that Judge Sebutinde’s opinion – that the Application and the events to which it concerns are political (not justiciable) – influenced her analysis of the facts presented, and, undoubtedly, her findings that no protective measures were legally warranted.
Effectively dismissing the evidence before the ICJ, she is unpersuaded by South Africa’s claims. As I’ve noted, Judge Nolte might have followed suit, but for the impugned statements by government officials and members of the military. Considering them as merely “renegade statements by officials not charged with prosecuting Israel’s military operations,” Judge Sebutinde gave weight to the Israeli policy as presented during the proceedings, which, she found to “contain no indicators of a genocidal intent” (para. 22). Seriously? What state government would admit before the ICJ that it was acting on the basis of a policy based on or likely to result in genocide. Acknowledging that “grave violations of international humanitarian law amounting to war crimes or crimes against humanity” may have occurred (para. 3), based on what was presented, she remained unconvinced that South Africa showed the existence of genocidal intent (paras. 17-23) – the “indispensable” ingredient, as put by Judge Nolte, for ordering provisional protective measures.
Lastly, Judge Barak’s Separate Opinion. In a word, befuddling. Judge Barak, one of Israel’s most celebrated Supreme Court Justices with a global reputation and a penchant for exuberant judicial activism (See retired US Federal Circuit Court Judge Richard A. Posner’s “Enlightened Despot”), has produced something between a government brief and a testimonial with interesting but immaterial autobiographical information. While I appreciate the tone and texture, the substance, in my opinion, falls far short of what I would have expected from such a legal giant – even if appointed and most likely instructed by the Israeli government. To be clear, it is not uncommon for ICJ judges to get instructions from their respective governments on how to vote on an issue, so I see nothing wrong with a judge being told how to vote. What matters is how a judge ultimately exercise his or her judicial independence. In this instance, it seems that Judge Barak received his marching orders and talking points from the Israeli government that appoint him as Israel’s ad hoc judge on the bench.
Maybe it is because I am used to judicial opinions being devoid of autobiographical accounts, devoid of judges testifying by injecting facts known to them but not found in the record or outright advocating for one of the parties, devoid of political rhetoric and assertions of a party’s democratic values and adherence to the rule of law (hence inconceivable of it committing acts in violation of international norms), devoid of personal refences to their feeling and prior writing, that I find the Separate Opinion an anomaly, and, to be frank, perplexing. I may be wrong, but in my view, it lacks the judicial analysis and rigor expected of someone of Judge Barak’s caliber in such an important setting.
The autobiographical remarks (paras. 3-7) garner admiration and sympathy for him but offer nothing to resolving the issue as to whether the measures requested by South Africa in its Application should or should not be ordered. Judge Barak seems to obscurely suggest that because the state of Israel was forged from the atrocities and genocide committed against the Jewish people by Nazi Germany, and because its political and judicial pedigree, it cannot possibly harbor genocidal intent (paras. 9-14).
Asserting that IDF soldiers carry with them a code of ethics and rules of international law is an interesting tidbit that might not have been known to the judges. But is this evidence, and if so, what is its relevance? Other than in promoting the Israeli government’s position that nothing it has done thus far violated international norms, including the Genocide Convention, I see no purpose in injecting such facts. Police Officers in the US often carry rules and codes of conduct when on duty, and even wear body-cameras to monitor their actions. Yet, we nonetheless see, with some regularity, beatings and killings of innocent civilians, usually minorities, at the hands of police officers.
As unlikely as it may be for the State of Israel to ever act with genocidal intent, every state, of whatever political or ideological persuasion, is capable of committing genocide. Simply, it is not beyond human nature and human experiences for victims having the capacity of becoming victimizers, even genocidaires. I am not suggesting anything other than the possibility existing, and that no state or group can claim to be beyond committing acts of genocide – whatever their history or form of government or general adherence to the rule of law. For an interesting read on this, see here.
Echoing Israel’s argument of South Africa jumping the gun and filing the Application without giving Israel a full and fair opportunity to respond to the Note Verbale, Judge Barak suspects bad faith (para. 15). Perhaps South Africa should have waited. But Israel was not moving with all deliberate speed when it knew it should have. Israel knew of the substance of the Application well before it was filed. And more time would not have resolved anything since Israel was making it known to God and mankind (then and even now) that it was not altering or even tempering the course of its prosecution of the war. Frankly, I think much too much was made of this issue by Israel. I would have mildly brought it up (as opposed to calling into question the integrity of the South African government) and pivoted to welcoming the opportunity to address the bogus claims of the existence of genocidal intent.
Claiming an erroneous approach by the majority in determining the plausibility of genocide based on “scant evidence” (para. 33), Judge Barak points inter alia to the Court’s approach in The Gambia v. Myanmar, where it had the benefit of two reports from the Independent International Fact-Finding Mission, whereas in regard to Israel no such reports exist (paras. 34-35). While this may seem like a fair point to raise, Judge Barak knows full well that Israel would not agree to independent investigators searching through archives, interviewing IDF officers and soldiers, gathering evidence in the Gaza Strip from victims and survivors of Israel’s military operations, and so on. Rightly or wrongly, Israel does not generally cooperate with UN agencies and independent investigators in determining whether Israel is violating international norms.
Considering the urgency of the situation in the Gaza Strip – Blinne Ní Ghrálaigh KC presented a devastating, desperate, and dehumanizing picture – how realistic and how prudent would it have been for South Africa to call for the creation of an independent investigative mission? It would take weeks if not months to be formed, and more to investigate and write a report, provided Israel would allow free and unfettered access to the evidence. Perhaps because Judge Barak seems to distrust the magnitude of the deaths and suffering and sense of humanitarian urgency because the figures come from the Gazan Ministry of Health, claimed to be controlled by Hamas (para. 36), he does not fully appreciate or accept what the rest of the planet sees being played out in the Gaza Strip. While I agree with Judge Barak that genocide cannot be inferred from statements from the Office for Coordination of Humanitarian Affairs, the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), and World Health Organization, they do inform, in conjunction with the totality of all other relevant evidence, of the plausibility of the risk of genocide.
Rightly observing that the inflammatory nature of the statements by officials and military personnel do not (in isolation) reflect genocidal intent (paras. 37-38), Judge Barak fails to fully appreciate how these statements could, in conjunction with the totality of all other relevant evidence, in the words of Judge Nolte, “give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Commission.” I sympathize with him being in a difficult spot and not wanting to be critical of Israeli politicians and IDF officers, but nothing short of a full-throated condemnation of these statements and a robust appreciation of the pernicious nature of them, even if unintended, should have found its way into his Separate Opinion. This is one instance, along with the one ordering the preservation and non-destruction of evidence, where Judge Barak could have, at no cost to the Israeli government, voted in favor of the measures.
Finally, I deeply disagree with Judge Barak’s claim that “applying the Genocide Convention in these circumstances undermine the integrity of the Convention and dilute the concept of genocide,” and that the Court’s approach “opens the door for States to misuse the Genocide Convention in order to curtail the right of self-defence, in particular in the context of attacks committed by terrorist groups.” What is at stake at this stage of the proceedings is not whether Israel has committed genocide but whether provisional protective measures are warranted because there is sufficient evidence before the Court satisfying it that the rights asserted by South Africa are plausible, i.e., “the right of the Palestinians in Gaza to be protected from acts of genocide” is plausible (Order, para 54. The measures are not curtailing Israel’s right to self-defence. It can still prosecute the war and even continue to inflict heavy casualties on the Gazan civilian population, so long as it acts within the contours of the laws of war. Granted, the concept of plausibility is nebulous, but, as I’ve repeatedly noted, based on the totality of the evidence, plausibility of genocide and related prohibited acts identified in Article III against the Gazan Palestinians exists.
Now for some parting thoughts.
The ICJ is not a judicial institution in the traditional sense. Politics play a role, as it does in any of the international(ized) criminal tribunals and courts. Concerning the Application, the ICJ played its role with distinction. The Order may not sit well with either side, but the public hearing and the transparent Order, Declarations, Separate Opinion, and Dissenting Opinion provide the opportunity to reflect and to temper, to acknowledge and to recalibrate.
South Africa not only stepped up and made the call to take this matter to the ICJ in order to protect the Gazan Palestinians from an ongoing or paternal future genocide, but it also did Israel a favor. In the heat of prosecuting a war after the brutal massacre, rapes, and kidnappings of innocent Israeli civilians, it is understandable for the retaliation to be fierce and uncompromising. This does not necessarily mean that such actions violate international norms. But, as in this instance, when the human death toll and suffering is way disproportionate to the military objectives, or when conducting all-out urban warfare where innocent civilians are trapped or forced to flee to places equally dangerous or bereft of basic human living conditions and resources, Israel is well served by being nudged through the measures into rethinking its approach in prosecuting the war. To that end, the Application and hearing has served its purpose. Granted, being accused of harboring genocidal intent is hurtful, embarrassing, even insulting.
In the court of public opinion where emotions run high and where the facts are not fully known there is no consensus. Seemingly, with sympathies favoring the Palestinians, South Africa’s claims have traction with the public. Ultimately, however, what counts is what the ICJ finds. I am convinced it will conclude that in exercising its inherent right to self-defense, Israel neither possessed nor acted with genocidal intent. Until then, thanks to the Application and the measures ordered, fewer lives might be lost or destroyed or permanently damaged because of this process and the measures ordered. And that is a good thing.