MY TAKE ON THE ICJ’S SOUTH AFRICA v. ISRAEL ORDER

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”

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SOUTH AFRICA’S ICJ APPLICATION: A convincing genocide claim or a compelling off-ramp for Israel (and cautionary refrain for the US)

 

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)”

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TRUE Project and Inner Temple Demystify the “New Frontiers in Evidence” – User Generated and Open Source Material

“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”

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Judicial Ethics: containing the dubious aroma of uninhibited judicial conduct

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.


Michael Ponsor, Senior Judge on the US District Court for the District of Massachusetts, A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells? New York Times, 14 July 2023

On 11 November 2023, I had the privilege of being a panelist at the International Association of Conference Interpreters (AIIC) 14th Legal Symposium organized by the AIIC Netherlands Chapter on Ethics in Law and Interpreting: Lawyers and Interpreters Talk Ethics: Mutal Expectations, Shared Experiences, which I have already written about. With a couple of international judges on the panel – Kosovo Specialist Chamber Judge Guénaël Mettraux and International Criminal Court (ICC) Judge Joanna Korner – the issue of judicial ethics and codes of conduct was bound to come up. And it did.

Judge Guénaël Mettraux

Kicking off the discussion, Judge Mettraux touched on judicial ethics and fielded a couple of questions. He stressed, appropriately, the importance of judicial comportment and restraint both inside and outside the courtroom. He recounted how the judges at the International Criminal Tribunal for the former Yugoslavia (ICTY) came to the realization that a judicial code of conduct was needed, and ultimately adopted.

I have long maintained that if the judicial process is not fair, the outcome is meaningless. In the broader sense, it is about procedural justice. Ineluctably, this includes judicial behavior. If court decisions and judgments and sentences are to be accepted as the results of substantive and procedural justice having been served, it is incumbent that the public – nationally and internationally – have confidence in the integrity, independence, and impartiality, of the judges. To that end, codes of conduct provide guidance, albeit framed as general principles requiring the exercise of reason, common sense, and informed judgment.  Codes of conduct also provide a measure of comfort to litigants and the public by telling them that the system is committed to a level playing field. Continue reading “Judicial Ethics: containing the dubious aroma of uninhibited judicial conduct”

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THE DARK SIDE OF ADHERING TO THE LAWS OF WAR: The seeming unfairness of taking the legal and moral high-ground

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 Roberts1

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”

  1. 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). []
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RESPONDING TO ACTS OF GENOCIDE WITH CRIMES AGAINST HUMANITY IS NOT THE ANSWER

It is possible to grieve and honor the hundreds of Israeli women, children, and men killed or injured in last Saturday’s brutal attack without simultaneously devaluing the lives, suffering and basic humanity of Palestinians.


Khaled Elgindy, Senior Fellow Middle East Institute.

News cycles shift attention.

Russian rockets brazenly demolished Hroza, a Ukrainian village on 5 October 2023. Hroza was not a legitimate military target. It posed no military threat and was of no military significance. 50 civilians were killed, hundreds more wounded. One of the deadliest attacks of unarmed, unthreatening, uninvolved citizens, it got worldwide attention. The attack was of a harmless village with harmless men, women, children, and elderly, away from the front, and far removed from any military objective. With no disclaimers of this being the handiwork of an undisciplined and uncontrolled rogue unit, or of a barrage of rockets gone astray, or of a mistaken target, this has all the hallmarks of a calculated, deliberated, and targeted attack to kill Ukrainian civilians. Outcries of genocide followed. As hard as it may be to shock the conscience after witnessing on media outlets unrelenting and indiscriminate Russian attacks, this one seemed different – maybe a game-changer. Until two days later.

Hamas’ merciless and vicious and deliberated killing and kidnapping spree of innocent Israeli civilians shifted the world’s attention. Just as the Hroza rocket attack was seemingly designed to eliminate a part of the Ukrainian people because of their ethnicity, so too the attacks by Hamas, especially at Kibbutz Kfar Aza, Kibbutz Beeri, Kibbutz Nir Oz and the Nova Music Festival, were seemingly designed to eliminate a part of the Israeli people because of their ethnicity and religion. Continue reading “RESPONDING TO ACTS OF GENOCIDE WITH CRIMES AGAINST HUMANITY IS NOT THE ANSWER”

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Palestine has responsibilities just as any other State Party: it can’t have it both ways

The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory.1

Palestine cannot have it both ways. As a State Party, it cannot expect the ICC to investigate crimes alleged to have been committed against Palestinians by Israel (through the Israeli Defense Forces), yet not be held to account for crimes alleged to have been committed by Hamas against Israelis.   Continue reading “Palestine has responsibilities just as any other State Party: it can’t have it both ways”

  1. Situation in the State of Palestine, ICC-01/18-143 05-02-2021, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021.[]
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Guidance to English Museums for Responding to Restitution and Repatriation Cases: Are the winds blowing in the direction for the return of the Parthenon Marbles?  

Sometimes, stripping back the complexities to think about issues on a human level can be helpful in overcoming the fear of difficult conversations, or of ‘making mistakes’ which can otherwise hinder progress towards resolution. It is important to be alert to the possible sensitivities of claimants, and to the deep sense of hurt and alienation which some of them may feel. It is also worth remembering that the cost to a claimant of bringing a claim – both financially and emotionally – can often be very significant. Equally it is important to establish whether the claimant has standing to make the claim, and whether they are entitled or authorised to do so.


Restitution and Repatriation: A Practical Guide for Museums in England, p. 2.

As I finished reading the recently released Restitution and Repatriation Cases: A Practical Guide for Museums in England, unconsciously, I found myself humming the first lyrics of the 1977 song Love is in the air, substituting love for change:

Change is in the air
Everywhere I look around
Change is in the air
Every sight and every sound Continue reading “Guidance to English Museums for Responding to Restitution and Repatriation Cases: Are the winds blowing in the direction for the return of the Parthenon Marbles?  “

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Untroubled Asymmetry in International Criminal Justice: Dare we look in the mirror – sincerely?

Much can be said about the politics of international criminal justice, the tolerated/excused hypocrisy in the behavior of certain states (in particular the permanent five members of the UN Security Council), and yes, the callousness or indifference or obliviousness in viewing, accepting, and even promoting inequity. We often tend to justify or minimize inaction or overreaction or selective action when it either suits us or when we lazily adopt a so what or a that’s the way things are attitude. Even when occasionally we truly believe something is off-kilter, irreconcilable, or just plain wrong, we rarely are willing to call it for what it is, to speak truth to power, to dare voice an unpopular position because it is simply the right thing to do. With no agenda in mind, here are a couple of matters worth expressing, however seemingly distasteful it may be to criticize anything related to Ukraine and its efforts in seeking peace and justice. Continue reading “Untroubled Asymmetry in International Criminal Justice: Dare we look in the mirror – sincerely?”

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A memorable experience with the AIJA at the Peace Palace

International Association of Young Lawyers (AIJA) Half-Year Conference — Panel on International Criminal Institutions And Their Role In Combatting Crimes Against Humanity

Who would expect a full house of young (under 45 years old) lawyers from around the globe to eagerly (and punctually) arrive at the Peace Palace in The Hague, on 27 May 2023, one of those rare bright sunny days, to hear from and exchange views with a couple of speakers on the topic of International Criminal Institutions And Their Role In Combatting Crimes Against Humanity? This was to be the last event (other than the Gala later that evening, another memorable experience) of the four-day International Association of Young Lawyers (AIJA) Half-Year Conference.

Continue reading “A memorable experience with the AIJA at the Peace Palace”

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