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. Continue reading “MY TAKE ON THE ICJ’S SOUTH AFRICA v. ISRAEL ORDER”

South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally directing attacks against the civilian population, civilian objects and buildings dedicated to religion, education, art, science, historic monuments, hospitals, and places where the sick and wounded are collected; torture; the starvation of civilians as a method of warfare; and other war crimes and crimes against humanity — though there is often a close connection between all such acts. South Africa is also aware that acts of genocide inevitably form part of a continuum — as Raphael Lemkin who coined the term ‘genocide’ himself recognised. For this reason it is important to place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-yearlong belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated there,,,with, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity. However, when referring in this Application to acts and omissions by Israel which are capable of amounting to other violations of international law, South Africa’s case is that those acts and omissions are genocidal in character, as they are committed with the requisite specific intent (dolus specialis) to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.

Application Instituting Proceedings (para. 2).

Relying on the Genocide Convention, South Africa in its Application Instituting Proceedings (SA Application) to the International Court of Justice (ICJ) seeks a finding of the existence of genocidal intent, and injunctive relief as provisional measures – an order requiring Israel to cease or limit its military operations in Gaza. I expected a cogent, balanced, and persuasive submission – to perhaps even be convinced since I’ve not seen evidence from which to conclude the existence of the requisite dolus specialis (genocidal intent). Disappointingly, the SA Application ignores or glosses over critical context as it relates to Israel’s right of self-defense – relevant to objectively assessing the SA Application. The legal analysis is also less than impressive. Suffice it to say, the facts as marshalled, and the arguments as crafted in the SA Application have not nudged me one iota towards the more vocal and ostensibly conformist assessment. I remain unmoved that a genocide, strictly in the legal sense, is ongoing in Gaza, just as I remain unpersuaded that the ICJ can order provisional measures which may infringe on Israel’s right of self-defense. Hence this post. Continue reading “SOUTH AFRICA’S ICJ APPLICATION: A convincing genocide claim or a compelling off-ramp for Israel (and cautionary refrain for the US)”

“We’re not gonna have a war, we’re gonna have the appearance of a war.”

Conrad Brean (Robert de Niro)

“Look at that! That is a complete f….. fraud, and it looks a hundred percent real. It’s the best work I’ve ever done in my life, because it’s so honest.”

Stanley Motss (Dustin Hoffman)

Wag the Dog (1997)

In Barry Levinson’s dark comedy Wag the Dog, we see a savvy political operative/spin doctor (Robert de Niro) get together with an exuberantly resourceful Hollywood executive (Dustin Hoffman) to generate images and footage of a fictional war to distract and misdirect the public from focusing on a scandal involving the US President. Over the course of a week or so, an ensemble of writers, actors, song writers, cameramen, and technicians put together a persuasive, realistic, bamboozling visual narrative. Crisis averted; scandal disremembered.

Not that what we see on TV and social media today on the events unfolding in Ukraine or Gaza or elsewhere are fictional. To the contrary, these are real events with real victims, real destruction, real misery, real consequences. But how much of what we see (and hear about what is being seen) should we believe? Most I suspect. Yet, most is not sufficient, just as close enough is not trustworthy in criminal proceedings where the evidence (as in any type of trial whether civil, commercial, or criminal) needs to be authentic and reliable – assuming it is relevant.

The process of determining the admissibility of evidence is rather straight forward. A foundation needs to be laid. The proponent will adduce evidence from witnesses who will testify as to the provenance of the evidence. In some cases, it may also be necessary to establish the reliability of the evidence through witnesses who have generated or collected and/or analyzed the evidence – before testimony on the substance of the evidence can/should be taken. Of course, before the evidence is admitted for the purposes of eliciting substantive evidence on what it purports to prove or disprove, the opposing side should be given an opportunity to conduct a voir dire, i.e., a cross-examination on the provenance, authenticity, reliability, and in some instances, the relevance. Continue reading “TRUE Project and Inner Temple Demystify the “New Frontiers in Evidence” – User Generated and Open Source Material”

In armed conflicts between sovereign states of conspicuously unequal capacities there is sometimes a particular kind of unequal application, or rather abuse, of the law. Some relatively less powerful states (as well as non-state bodies) have engaged in consistently unlawful operations against the more powerful adversary such as hostage-taking, co-location of their military objects with civilian objects, use of human shields, use of suicide bombers disguised as civilians, indiscriminate attacks, use of proxy forces to engage in unlawful operations while denying all responsibility for their actions and deliberate attacks on civilians. Such unlawful operations have been prevalent during the period of US military dominance since the end of the Cold War, and can be seen as a response to the US ability to fight war from the air with impunity and with a high degree of accuracy. In many cases, they are intended to lure the United States and its coalition partners into causing civilian damage and incurring international criticism: as such, they are part of what Charlie Dunlap of the US Air Force has called ‘lawfare’, or ‘the strategy of using – or misusing – law as a substitute for traditional means to achieve an operational objective’.

Adam Roberts((Adam Roberts, The equal application of the laws of war: a principle under pressure, 90(872) International Review of the Red Cross 931, 949-950 (2008). ))

The laws of war – aka “law of armed conflict” or “international humanitarian law”– at times fall short of their intended purpose. They are imprecise in providing exacting guidance. They afford vague margins of discretion to what may seem, semantically, to be malleable standards, and may reflect over‑permissiveness of conduct incongruous with moral philosophy’s meaning of justice and the nature of the good life (or the good war). But they are reflective of and consistent with the realities faced by those who must apply them in the war theater, as opposed to paradigmatically in a classroom amphitheater. Nonetheless, the facilitative aspect of laws of war, i.e., that which it aims to achieve – whether viewed from a prohibitive lens or a permissive lens – carries the imprimatur of moral acceptability, however imperfect or unsatisfying. Continue reading “THE DARK SIDE OF ADHERING TO THE LAWS OF WAR: The seeming unfairness of taking the legal and moral high-ground”