Judge Dennis Davis
Explaining the International Court of Justice’s Decision Against Israel

Judge Dennis Davis - Explaining the International Court of Justice’s Decision Against Israel

- Good evening, good afternoon to everybody. It seems to me that every time I come where I am at the moment, which is Plettenberg Bay on holiday, for those of you who are not from South Africa, it’s a beautiful coastal town up the East Coast of South Africa where we generally close it and I spend a couple of weeks in early February. Now that I’ve essentially retired from permanent service on the bench, I seem to have to deal with a difficult topic. I was thinking about this just earlier today. And I think it was a year or two ago that I had to debate with Rabbi Jeremy Rosen the role of Archbishop Desmond Tutu, which given the controversies around him were hardly a topic of easy, easy negotiation. Tonight’s topic is even more problematic. It is truly one I would loved to have not spoken about because I would’ve loved the fact that there wasn’t going to be a case that we were going to talk about. But there is. And accordingly, I should try to make some preliminary comments about the purpose of my talk, what I’m prepared to do and not to do. Before I begin, let me make some preliminary remarks. This is a truly difficult topic because what happened was that Israel was hauled before the International Court of Justice in relation to the Genocide Convention. And that itself is, of course, a deep irony and was, I think, very luminously set out by Justice Aharon Barak in his minority judgement which I intend to talk about a little later. But let me just read to you what he said at the beginning.

“The Genocide Convention holds a very special place "in the heart and history of the Jewish people, "both within and beyond the state of Israel. "The term genocide was coined in 1942 "by a Jewish lawyer from Poland, Raphael Lemkin. "And the impetus for the adoption of the Genocide Convention "came from the carefully planned and deliberate murder "of six million Jews during the Holocaust.” He then goes on to say “I was five years old "when as part of Operation Barbarossa, "the German Army occupied the city in which I was born, "Kaunas in Lithuania.” And he then talks about how many Jews were murdered. He then said, “I’ve thought a lot about how this experience "has affected me as a judge. "In my opinion, the effect has been twofold. "Firstly, I’m deeply aware of the importance "of the existence of the State. "If Israel had existed in 1939, "the fate of Jewish people might have been very different. "Second, I’m a strong believer in human dignity. "The Nazis and the collaborators sort of reduced us "to dust and ashes. "They aimed to strip us of our human dignity. "However, in this, they failed. "During the most challenging moments of the ghetto, "we preserved our humanity and the spirit of humankind. "The Nazis succeeded in murdering many of our people, "but they could not take away our humanity.” And he goes on to say that, “Essentially Israel’s a democracy, "but there’s a strong legal tradition "and independent judicial system.” And he speaks then about that, “There’s no democracy without security, "but there’s no democracy without human rights.

"Democracy is based upon a delicate balance "between collective security and individual liberty.” I thought I should start there because one can only say amen to all of that. We have discussed the Genocide Convention born as Justice Barak quite rightly says, “from the ashes of Auschwitz, by the work of Rafael Lemkin,” who we met when we discussed the “East West” book, “East West Street”, that wonderful book by international lawyer Philippe Sands. And we know that there was a big debate, and we’ve discussed this previously on “Lockdown,” between those who wished to prosecute the Germans, or the Nazis more accurately, for crimes against humanity on the one hand, and Lemkin’s notion that, in fact, they had committed genocide and they should be charged with genocide. The view that prevailed at the time was that of another Jew from Lvov, Hersch Lauterpacht, and, again, we met in the same context; and who argued that ultimately, criminal law is based on individual action rather than collective. And secondly, I think Robert Jackson, who was the lead prosecutor for the United States during Nuremberg, felt that the Genocide Convention was perhaps too innovative, too new at that point to deal with the Nuremberg Trials. But it was passed in 1948. And there is, unquestionably, as Justice Barak says, “an extraordinary feeling of sadness, despair, anger.” I’m sure many of you feel all of these emotions in the fact that Israel has now been charged by South Africa with the breach of the Genocide Convention of 1948. The second sadness, the second irony, and the second source of all legitimate existential angst which I think we all feel is that this entire episode began with the barbaric attack by Hamas on October 7th, an attack which ultimately if you think about it, and everybody I think would agree, was the worst attack on Jews since the end of the Holocaust.

And yet, that was the trigger which finally resulted in a case being brought before the International Court of Justice, which, of course, in which South Africa lodged complaints against Israel pursuant to the Genocide Convention of 1948. Now, it’s not my task, I think, to deal with the moral and indeed even the political questions which arise. They’re very problematic. And as I’ve indicated, any Jew who believes, as I do, in the centrality of Israel to Jewish existence and Jewish future can only, as it were, be torn by what has happened. But what I do want to do, if I may, is to take you through the judgement of the International Court of Justice through the lens of an international lawyer, through the lens of law. And so we could all evaluate it as best we can to make sense of what it said and what its significance was. I will admittedly thereafter be required, as I’m quite sure you’d want me to, to try to speculate on South Africa’s motivations for bringing this particular case. But in this particular connection, I will just describe what I think is the prevalent view. You are more than welcome in the chat line to articulate what you think it was and whether South Africa was correct or not correct or hypocritical as the case may be. I’ll make one or two points in this regard. But I’m reluctant to get into evaluating the South African government’s policy, in other words from a normative perspective, because the Judicial Service Commission, which deals with the accountability of judges including retired judges like myself, has already ruled against Chief Justice Mogoeng when he criticised South African foreign policy in relation to Israel. And I don’t intend to repeat the same mistake. So let me start then with the basics of my lecture. Firstly, the International Court of Justice.

And I assume that many of you will know about this, but forgive me for dealing with it, as it were, from the start. It essentially is set up as a successor to a whole range of other international bodies which were there under the League of Nations and following in 1946 as a result of the first session of the United Nations General Assembly. First case came in 1947, the United Kingdom versus Albania, relating to disputes with regard to the Corfu Channel. Its basic function is to deal with international law disputes submitted by states. All UN states are, in terms of the charter, subject to its jurisdiction. Of course, in this particular case, the subject matter was the Genocide Convention, and both South Africa and Israel were signatories thereto. So to that extent, jurisdiction was clearly within its scope and grasp. The ICJ, if I could just go on for one moment, must be distinguished from the International Criminal Court, born of the 1998 Rome statute. I should add that a series of countries have not ratified the Rome statute. That includes the United States of America, Israel, together with a few other countries including Iran, including Russia, Ukraine, and Zimbabwe, just to name a few. The International Criminal Court does have jurisdiction over four separate aspects of international humanitarian law: genocide, crimes against humanity, war crimes, and crimes of aggression.

But clearly, this case was not brought under the ICC because although the ICC has, in effect, assumed jurisdiction in so far as this dispute is concerned by accepting the fact that Palestine is a state and therefore can lodge a complaint or demand an investigation by the ICC, this case was brought under the rubric of the Genocide Convention, not to it but to International Court of Justice and only on the basis of genocide. And there lies an important point which I shall come to. There are, as we know, 15 permanent members of the ICJ. I want to say something about a few of them if I may. Because whilst I think there are legitimate and obvious criticisms that can be made of the judgement , one that I think is the most stupid and ill-advised is to say they’re so-called judges, as some sources in South Africa have suggested, and that they really are merely political hacks. I don’t think that is true. And anybody who has said that has clearly not studied the biography of the judges. If I can just give you an illustration on some of them. So for example, the Slovakian judge who’s a permanent member of this court has also been a permanent member of the Court of Arbitration. He has a PhD from Charles University in Prague. He has a string of publications and is a fairly distinguished, in fact, is a distinguished writer in the field. The French judge has been a professor of international law. And he too has published widely in the area of international law. The Moroccan judge, who’s a professor of international law, has in fact got a degree from universities both in Paris and in New York, and, again, is widely published. The Somalian judge basically was educated in Geneva and Florence; and has an honorary doctorate, interestingly enough, as a result of much of his work from University College London; and has published a series of books on international law.

The Chinese judge has an LL.M. and a JPD from Columbia University in the United States of America. That seems to be where the majority of her education comes from. And she too has published, and not only in China I might add. The Ugandan judge, who wrote a very interesting dissenting judgement to which I shall make reference, has an LL.M. from Edinburgh. And thanks to much of her work has got an honorary LL.D. from the University of Edinburgh. And in fact, she’s had a long career of dealing with various war crimes including Latin Syriari. The Indian judge has an LL.M. from Northwestern University in the United States of America, has been, was for many years a leading counsel in India appearing many times before the Supreme Court, the Indian Supreme Court, and has also been a professor of international law. The Lebanese judge has an LL.M. from Harvard and a further law degree from Sciences Po in Paris, which is a very, well, I think is a very substantial university. They’ve asked me to come and lecture there, so I’m hardly going to say elsewhere. He’s also been a professor of the American University of Beirut. And so what I’m saying is that contrary to this view that they soak… And then, of course, there’s some hugely distinguished national lawyers, the German judge, and the Australian judge, Hilary Charlesworth, one of the best international lawyers in the world. What I’m saying is that I think one is entitled to criticise, of course, the ruling and the approach. But it is an incredibly stupid argument to say that these are a bunch of hacks.

It’s interesting, for example, that the Ugandan judge who dissented, dissented in circumstances where her government shortly thereafter disowned her by saying that’s not their policy. So I think that these judges should be given the credit for the fact that they are accomplished. And that whilst they might, in your view as I speak to you, have not given the right answer, nonetheless, I don’t think it’s because of lack of qualifications or because they’re so-called jurists. And people who say that really I don’t think contribute meaningfully to the debate. So let us then move, if we may, to some of the substance of the case. The substance of the case, of course, is based on the Genocide Convention. And the Genocide Convention in Article II talks about acts which are committed “with intent to destroy in whole or in part,” in whole or in part, “a national, ethnic, racial, or religious group.” In whole or in part. And what are those acts? “Killing members of the group; "causing serious bodily or mental harm "to members of the group; "deliberately inflicting on the group "conditions of life calculated to bring about "the physical destruction in whole or in part; "and imposing measures intended "to prevent births within the group,” and finally, “forcibly transferring children "of the group to another group.” Those are effectively the acts where if they, if there’s an intention to commit genocide, they fall within the Genocide Convention.

Now that’s the, as it were, the legal material on which this case was brought to the ICJ by South Africa, a signatory to the case. And it was, of course, entitled to do precisely that in terms of law, let me put it that way. Now, if you evaluate the case which was brought and the debates between the two sides, there were three or four critical points upon which the entire judgement and therefore order turn. In the first place, there’s the question of whether the court had jurisdiction. In the second case, there is the issue of the threshold that is required to justify the award of provisional orders. I want to stress that. Thirdly, of course, coupled to the second point is genocidal intent. Because as indicated by my reference to Article II of the Genocide Convention, there has to be proof of genocidal intent. And then fourthly, of course, one has to ask oneself what orders were competent for the court to give, which, of course, includes what scope did they have to deal with Hamas. So let me now deal with these four particular points. The Israeli argument, which was extremely powerful in this regard because there was precedent for it in the Myanmar and Gambia case, was whether in fact the court was properly seized of the dispute. The reason for that is because the argument which was put up by Mr. Shaw KC on behalf of Israel was that South Africa, if I could use a legal term, had not exhausted its domestic remedies. In other words, what South Africa had not done was to invite engagement with Israel. Because Israel had said: Well, let’s engage between ourselves to see whether we could actually resolve the dispute between the two parties prior to the matter going before the International Court of Justice. And the point that was effectively being made on behalf of Israel was that South Africa had not taken up that invitation.

And that accordingly, failure to have done so timelessly and properly permitted the court to say: Because this had not been done, there was no competent jurisdiction upon which the court was seized to hear the matter. Now, in the Gambian case, which of course has to do with the Rohingya people, there, the court, if you read the judgement carefully, did agonise quite a considerable extent about whether, in fact, initially procedures had been implemented by Gambia pursuant to dealing with bringing the case of Myanmar to the ICJ. The court at the end of the day found that effectively jurisdiction had been shown. It is possible. It certainly seemed to me a plausible argument that Mr. Shaw made that South Africa had failed in this regard and the court should therefore be reluctant to hear the substance of the case. But speaking as a judge, let me put it this way to you, a judge who’s perhaps neither a goon or a Muslim and who comes to the case as objectively as possible, it seemed to me that that matter, that argument was never going to fly. That in the light of the controversies that had engulfed the case as a whole and in the light of what was actually going on both in Israel and in Gaza at the time, the idea that the court would say: Sorry, we’re not going to hear this case, seemed to me just to be a legal bridge too far. Let me put it this way, a practical bridge too far. It was always likely that that argument, as based as it were on earlier cases, was not going to fly.

The second argument, which is absolutely vital to the whole case, is what is meant by provisional? In relation to provisional orders, what is the test? If I could say that the ICJ in this regard has been fairly, what is the word, fairly inconsistent in determining precisely the test that should apply evidentially to determining that they could be justified in granting provisional orders. The broad words used is: Have the applicant’s brought a plausible case? But therein lies quite an interesting plethora of different decisions. And I think Justice Barak made that perfectly clear in his minority judgement , correctly so, that the court has not been particularly consistent in this regard. Why? Is the test one where prospects of success are required, at least to show some measure of prospects of success in the ultimate case which would justify the court saying that there is a plausible case that’s been made by the applicants, in this case South Africa. But there have been cases where the court has not gone that far and merely said: If there is evidence, which admittedly could be rebutted in a trial when the matter comes before the court for the final stage of the litigation, but if there is evidence which essentially says that the other side has to be put on proof of this, that would be sufficient to ultimately justify the court saying the plausibility test has been made. I suppose I could put it this way to you. Judges, certainly in my country but I suppose in many other countries, often deal with custody cases of children. And I’ve had many occasion when you’ve had a case dealing with a child who has been the subject of a dispute between parents.

The father, let us say, is entitled to the child over the weekend. The mother refuses the child, refuses to allow the child to go to the father. The papers indicate that the mother says the child is abused by the father. There are psychiatric reports by the father which rebuts this. And in fact, there’s no really coherent psychological report by the mother which suggests that there has been the kind of child abuse which would say: No, the father has no access to the child. But if it’s going to be for a weekend, you as a judge would say: I’m not going to take the chance. I’m going to, as it were, suggest in this case that you can’t have your weekend. I want a further report to ultimately determine the fate of this child. Because I’m not going to play a god with a child’s life. Now you may say that’s entirely different. But the mentality is, in this regard, if you can put up an argument which even if it could be rebutted shows evidence which if proved at trial would indicate the commission of one or other of the crimes of genocide, even though we will not make any definitive finding thereon, that passes legal muster. It’s a very low test. It’s a very low test. And I think a lot of people have not grasped that.

And now I could go in at great length to the various case law in this regard, but I’d prefer, as it were, to move on in this connection by saying to you that if you grasp the point of the very low threshold of evidence required to actually bring about a case for provisional orders, for interim relief as it were, it is not a particularly high evidential bar to negotiate. The third point then that flows from there is the question of genocidal intent. If you read the minority judgement of Justice Barak, which I’ve already commended to you, he does make the point, quite rightly, that when it comes to genocidal intent, what is meant by this certainly in the ordinary course of events is that you’ve got to show intent in the form of in South Africa we’d call it dolus, there’s a question of intention to destroy in whole or in part a national, ethnic, racial, or religious group as such. And this is a high threshold for proving a specific intent required. Obviously, it has to be. And he rightly points out that in a whole series of cases, in relation to Bosnia and Herzegovina in relation to Serbia, the court there found that there had to be clear evidence that the party concerned intended to commit one or other of the genocidal acts. And of course, as I say, it’s not just killing of a section of a group. It’s causing serious bodily or mental harm to move that group, deliberately inflicting on them conditions of life calculated to bring about the physical destruction in whole or in part. But you’d have to show the kind of intent which if I could put it this way would be the kind of intent required in a criminal case. The problem is, and this is what the justices had to grapple with, was that if you accept my first argument about that the bar for provisional relief is low, that means that the bar for showing some form of genocidal intent is not the same at provisional stage as it is at the final stage.

You don’t have to prove that Israel had the necessary genocidal intent to commit one of the five acts that I’ve set out in my description of the Genocide Convention. What you have to show is at least there is, again, a plausible basis by which to say there was genocidal intent. And that, again, even Justice Barak had to accept was a lower threshold than would be the case when the matter comes for final resolution. What does that all mean in the context of this case? And that, of course, is absolutely crucial. What did the two sides argue? And let me say this. I thought that much of the Israeli presentation was excellent in law. And Dr., I think, Tal Becker, the Legal Advisor to the Department of Foreign Affairs, Israeli or Australian lawyer, absolutely outstanding presentation. I commented to a number of my colleagues: Oh, that we should have someone of that ability in the Department of Foreign Affairs in South Africa. The Israeli argument was essentially this, that this case reveals some very unique features. And indeed it does. And the unique features of the case are that it is accepted under international law that a country is entitled to exercise rights of self-defense. That those rights of self-defense are fairly wide ranging. That is why when I mentioned to you the Rome statute, war crimes, crimes against humanity, which are slightly different as I’ve indicated, and I must draw that distinction between those crimes and genocide, have a doctrine of proportionality attached to it. That means not that: You kill 10, we kill 10.

But proportionality ultimately means, reduced to its essence, is that the right of self-defense allows you to exercise defence which is proportionate to the objective that you have in mind. If the objective is in exercising self-defense to eradicate the threat of those who’ve attacked you, in this case eradicate the threat of Hamas, then that is a proportional objective. And one has to assess: It’s satisfactory, it’s problematic. But that is in essence the root. In this particular case, the question was… And so Israel argued that, in effect, it was exercising rights of self-defense. South Africa countered that by saying: There is no right to self-defense if it is a form of genocide. That’s true. But that, of course, doesn’t answer the prior question: What rights of self-defense are there? And this case did bring up a very, very difficult question. And the question is this: All law is based on context. It’s interesting, isn’t it, that we read in this parashah this week, “Parshat Mishpatim” which comes after the Ten Commandments. And essentially, if you look at it, it sets up the proof text. So much of the tome’s analysis of law about slavery, property, you name it, it’s all there. And of course, you ask yourself, what’s the context in which this parashah comes about? And the point about the parashah is it comes about because of the 400 years of slavery that Israel suffered, and that one wanted to have a law, a set of laws, which would never repeat the atrocities that were perpetrated on the slaves in Egypt. And that one was starting to foreshadow what a country based on law would be. Context, in other words, always gives you an understanding of the law that we’re analysing. And in this case, the context is the Holocaust. The context is the notion of war.

But it could never have been envisaged at the time that the war that was going to be perpetrated would be between a nation state on the one hand and a group of barbaric terrorists. And not that nations can’t be barbaric. The Nazis showed that, as did the Soviet Union. But the point I’m making is, here you have a group like Hamas who essentially are not constrained by anything and whose tactic is essentially to run a war in which civilians are used as shields. Civilians are used as excuses. And civilians, yes, essentially are almost celebrated by Hamas because it adds to the propaganda value thereof. So how then, Israel was saying, are we supposed to exercise our rights of self-defense in that circumstance? And it’s a very problematic situation. Because, as Justice Barak said, you know, if you are going to use the Genocide Convention in this particular connection, you erode the distinction between war crimes, crimes against humanity, and genocide. And whilst there may well be arguments that certain actions taken by Israel fall within the question of war crimes, crimes against humanity, that doesn’t make them crimes which fall within the Genocide Convention. That’s not Barak’s view. That’s a view taken by many international lawyers. So the Israeli argument was, effectively: What are we supposed to do? In other words, what are we supposed to do because we’re entitled to exercise rights of self-defense? And I think that is clearly a powerful argument which is deeply troubling in this case.

The second point that Israel made was, of course, that Israel has taken great care under the circumstances of the difficulties that I’ve outlined already to protect civilians as best it can: to relief, its the cell phone messages and the instructions to move to different parts of Gaza given that they were going to attack. And that there was no suggestion through the IDF protocols or the war cabinet’s instructions for anything other than trying to deal as best it could, that balance that Justice Barak was talking about between democracy on the one hand and security on the other. The South African argument, which ultimately as you know, was broadly accepted by the ICJ with some exceptions was this. It was that, one, the threshold is low. Two, there are facts which count here. 85%, 65% of the homes within the territory of Gaza have been destroyed either in full or in part. Massive destruction to property. 85% of the population have been displaced from their homes. 15% of women having greatest difficulty, in fact, in giving birth. There are widespread levels of starvation and disease, and continuous bombardment. And when they move from one area to another where they’re instructed to go, all of a sudden the IDF is there. Those were the facts that the South African government put up. Again, they were contested facts. And Israel said: Those facts, contrary to the Myanmar judgement , were not, as it were, the source of independent inquiries such as had happened in the Myanmar case with the Rohingya people. But South Africa said: Those are the facts that are available. Various agencies have suggested these. They’re not really hugely contested.

And there they are. Then coupled to that were the statements made by the president of Israel, by at least a couple of the cabinet ministers, Gallant and Katz, which indicated, one, that the fight was not just against Hamas. Because there were statements made to the effect, particularly by the president, although I have to say that that itself is a contested piece of evidence. Because if you read the whole speech, it looks slightly differently. But the basic line was, number one, “We’re dealing with animals here, "We’re not dealing with human beings,” Gallant. Two, “That the Palestinian people "have essentially aligned themselves to Hamas "and therefore placed themselves in the firing line” as it were, “and that the place has to be razed to the ground.” Furthermore, the cutting off of electricity and water supplies entirely, and the fundamental restriction of humanitarian aid were all such that if you took that evidence together with the facts that you were put up, that was sufficient in the court’s view to meet the plausibility standard that I’ve outlined. And accordingly, therefore, the court was going to provide certain forms of relief. Let me just talk about that for a moment. Then we’ll get on to some one or two of the others before I close. ‘Cause I can see the questions piling up understandably. So the first question was whether in fact the court was going to grant a ceasefire injunction. And the answer to that was palpably not. The reason for that is because Hamas cannot be a party to these proceedings because Hamas is not a state. And it’s not a signatory because it’s not a state. Therefore, it can’t come before the ICJ. Not a signatory, any event.

And as such, Hamas, you couldn’t impose a ceasefire, which even if it could be binding on both parties by virtue of the fact that they’d acquiesce, that was never going to happen. And therefore, a ceasefire which ultimately was unilateral upon Israel and not on Hamas clearly wasn’t going to fly. What did the court then do? Well, it’s interesting. In essence, what the court said to Israel was: You are obliged to comply with the Genocide Convention. And you must now comport yourself within the parameters of the Genocide Convention. And you have to report within 30 days of our order as to how you’re dealing with it. South African can reply there too. Obviously, Israel’s going to say: We do comply with the Genocide Convention for the following evidential reasons. South Africa will undoubtedly say: No. The Lord alone knows where this then goes, presumably a further dispute. But it’s essentially an order without very much, in a sense even if it could, teeth in this particular connection. It has been argued by the South African foreign minister that the essence of the order is there has to be a ceasefire. Well, I don’t think that’s correct at all. Because the court dismissed the direct prayer of a ceasefire. And therefore, to that extent, took it out of the equation. The report obviously means that there’s an ongoing investigation. And that does put Israel under the spotlight.

And, of course, one would hope, and let me make this quite blunt, that the sort of statements that are uttered by people like Ben-Gvir and Smotrich, actually if they could shut up, it would be much easier for Israel because these are damaging, as I’ve indicated, when you are dealing with provisional orders in this particular way. Meaning the sort of line that was taken by the IDF by saying we commit ourselves to international humanitarian law is often undermined by these kinds of extra cathedra statements. But they’re made by very senior ministers, and that has obviously created a legal problem. The court then went on to do two further things. It ordered that greater levels of humanitarian aid must be brought into Gaza. Significantly, Justice Barak concurred with this aspect of the order. He did so not because he thought that Israel in fact was guilty even on the provisional level which I’ve outlined of genocide, but because he thought, and I think most judges would feel exactly the same way, you know, if this can help save life and limb, only the better. And therefore, very courageously in my view, reflecting, again, my opinion that he’s the greatest judge that Israel has had, that he took a very courageous position concurring with 15 other judges in this regard. The other point that was made was the point that statements of genocidal intent should actually be dealt with. According to the court, the Attorney General of Israel is considering precisely that. And I do think that, again, where Justice Barak concurred with 15 others, the idea that Israel which is a democracy should be very circumspect in not allowing genocidal statements to be made can only be correct, it’s difficult to argue against that. Those were the essence of the orders that will be granted.

As you can see, you can understand why both sides claim some measure of victory. South Africa did not get its ceasefire order. The actual fundamental substance of the order was comply with the convention. Israel says it’s doing it in the first place. And ultimately, one would have to wait to see what the consequences of any further reports are going to be. There’s one other interesting aspect to this case. And that, of course, was the judgement of the Ugandan judge. The Ugandan judge said a couple of really interesting points. In the first place, she did not think that the threshold even at the provisional level of genocidal intent had been met. And again, that’s sourced in some of the jurisprudence of the court. But as I’ve indicated, it really depends upon how you read those judgements on intent with the lower evidential plausibility argument, which is required at this stage for a provisional order. The second point she made which was really interesting was that this is a political dispute, not a legal one. And accordingly, in her view, this was the sort of case where in fact would be better to have said, as she said: Comply with the Security Council resolutions and let’s deal with this politically rather than legally. And manifestly, there are limitations of law fairness in this particular regard, which is why it’s such an interesting judgement . Let me conclude before getting on to what are clearly a growing list of observations and questions, which I shall do as soon as I finish this point. Let me just touch on why South Africa brought this case.

Been a lot of talk about the fact that South Africa is funded by Iran. And therefore, it was influenced by that. There’s been no evidence of this. There’s been some speculation in “The Jerusalem Post.” Significantly, when this particular issue was first brought up, News24, the South African media, a major media house, which has not been, as it were, particularly sympathetic to the ANC government, debunked it after a very exhaustive investigation. We’ve no such evidence that this is the case. If there is, well then, obviously, that will have to be shown to be so. Why then, assuming that this is not so notwithstanding any of the allegations that have been made, or the allegations that some of our major banks are ultimately bankers for Hamas, a point, again, which I find very difficult to believe as South Africa’s now making determined efforts to get off the GREY list. And my understanding from talking to Treasury about this, where I have some knowledge, is I find that very unlikely. What is much more likely is that South Africa now sees itself within the kind of global orbits of China, Russia, et al. That is, moving steadily away from a Western, as it were, foreign policy, Western democracy policy, towards some alternative model of global governance being punted to a large degree by China, to less extent, well some extent by Russia, et cetera. And that South Africa is increasingly embracing that approach. That, of course, would explain the obvious inconsistencies between South Africa’s policy towards Ukraine, which not to put to fine a point in it, has hardly been, as it were, consistent with its proclaimed claim for international human rights law as it has advanced before the ICJ, or in the case of Sudan.

But I do think it is the major reason why they’ve taken the approach that they have apart from the fact that I think one has to admit that there’s been longstanding inextricable links between the Palestinian struggle and South Africa’s own struggle earlier than its links between the ANC and the Palestinians. But you may have very different views on this. Ultimately, at the end of the day, I think that the decision that was taken by the ICJ had to be expected, that it was highly likely given the facts as I’ve tried to indicate and the low level of evidential proof required that the order was going to be very much different. There is, I think, and it’s fair to say a disjuncture between what were very harsh statements in the judgement itself and an order which doesn’t seem to bear the weight of those statements. Presumably because at the end of the day when applying themselves to the order, all of the difficulties that I’ve outlined with regard to the complexity of international humanitarian law and distinctions between genocide, crimes against humanity, et cetera, and the practicality of it all of how you would go about the business weighed heavily. The final point I want to make is, of course, the court was not able to make an order against Hamas because Hamas was not a party. It did in fact, however, make critical remarks about Hamas. It did call for the release of the hostages. And I would hope, I was hoping that the South African government whilst embracing the judgement it gained from the ICJ would as equally enthusiastically call for the release of the hostages, which I think is a vitally important point and which sadly seems to have, as it were, eluded so many people that you would’ve thought would’ve been somewhat more morally consistent in this regard. So that basically is what I wanted to say. And let me now try, if I may, to deal with some of these questions that doubtless you have, which I’ll do my best.

Q&A and Comments:

Yes, genocide cases, David, have been brought before the ICJ. I’ve indicated the, I mean, the Russian case recently. There’s the Myanmar case, and there’ve been many others.

Q: “Why was Hamas not brought before the ICJ?”

A: I think I’ve answered. Yes, they’re obviously genocidal. And Israel was quite right in saying that the only group that expresses genocidal intent is Hamas. But I’ve indicated they’re not a party.

Well, I’ve tried to answer Susan. “Why South Africa of all countries in the world "has done this. "I might be wrong about this. "I’m concerned about Dr. Francis Boyle "who represents South Africa in the ICJ "and acts as legal counsel to the Palestinians, "and has announced on TV that he will lobby "to recognise Palestine in the title, 'Deceit in the UN.’” Well, I don’t know if he represented South Africa at the ICJ. He certainly wasn’t one of the legal team on the ICJ. There were two English lawyers. There was Professor John Dugard, the most eminent international lawyer and South African. And there were three members of the South African Bar.

Q: Monty, “Hendrik Verwoerd said Black South Africans "use the Verwoerdan rules of order. "Was he hopelessly wrong? "Are they now world leaders in directing us "towards a just and highly moral world?”

A: Let me say your first line, Monty, is really just unacceptable. I’m not going to respond to that. But are we directing us towards a just and highly moral world? Well, the answer is that if South Africa had taken the same approach, I think, to the Sudan and to the Ukraine and Russia, they may have been able with greater legitimacy to claim that. But I take the point that that inconsistency is problematic to put it mildly. Let me just see if I… “Is not the phrase, Your Honour, ‘in whole or in part’ "too vague to be useful from the start? "Taking this phrase as written, even a single person…” No, I don’t think a single person is in part. I think you’re talking about a significant section of a population, not necessarily the whole population. And, of course, it requires interpretive work, but I don’t think it’s that vague.

Lydia, “South Africa’s excellent investigative… "Iran got South Africa to bring… No, I don’t think that’s true. And I think the only one who’s pondered that has actually been shown to be utterly wrong as he is on many, many other issues.

I’m not sure, Jonathan, what you mean by academic qualifications. Oh, I see. Well that’s true, but all I was trying to say was that I don’t think these judges should be dismissed just as a bunch of palookas. I don’t think they are. And I don’t think that’s the way in which one should deal with this. No, of course, Israel’s not always innocent. And I wasn’t suggesting that, never guilty. But I was trying to explain as best I could that in this particular case, the outcome was not surprising. Many lawyers would’ve gone exactly the same way which, again, is why I think simply trying to rubbish the judges is so unhelpful. It’s a difficult case if you accept the idea, as I said earlier, that provisional evidential is very low. And if people just bother, you know, who’ve been pontificating about this but know nothing about international law would just look at the jurisprudence. And they’ll realise that it’s perfectly plausible. It’s so plausible that to a large degree, if you read Justice Barak, you can see the extent to which he agonised about it and certainly on the two fundamental points concurred.

Q: Ralph says, "I listened to the presentation "of a judge previously of the ICJ, Judge Davis. "Can you please comment on the order "that all hostages be released? "Are there any?”

A: No, that’s the problem. Of course, they should be released. But they had no jurisdiction to deal with it because Hamas was not part of the ICJ. As I said, that’s why I think South Africa morally should be shouting the odds about the release of the hostages and making as determined an effort in this regard as they did to bring the case. “I’m not criticising the qualifications "of three of the judges, "but just want to remind everyone what Trudy has told us "that the majority attendees and one…” Yes, of course they had PhDs and they’re antisemitic. “Hence academic intelligence "does not mean the judge is not antisemitic.” Yes, that’s true, but I’m not sure where that gets us. The suggestion that these judges were motivated by antisemitism means you haven’t read the judgement . Nor have you actually bothered to see the balance of the jurisprudence. Again, we can criticise the court. You can criticise the judges. I know quite a few of those judges. And I think it’s incredibly offensive to say that and to try to kind of compare them to attendees of Wannsee. Quite frankly, you know, I just think we need to have a moral balance here. Yes, the chant of Hamas is genocidal intent. There’s no question about it. Hamas are entitled to genocide. That makes the case even more problematic as I indicated at the beginning. That’s the problem of international law. How do you deal with a situation where you have a group who actually have no other intention other than genocide? I agree entirely. And that’s why it’s such an agonising case and I find it so difficult.

Q: “Can a complaint be sent out "with state-sponsored terrorism?”

A: Yes, the answer is yes. If it can be shown that these countries are in fact perpetuating. Yes, the answer is yes.

Brian says, “Israel has been accused of genocide "by many groups, especially on the left. "Consequence, ICJ was expected to take the case "to validate this.” No, I don’t think so. I mean, I think it had to accept the case. You can’t argue, you know, to say: Well, at a provisional level there’s absolutely no merit and I’m not going to take it at all. That Israel has been accused of genocide by people on the left. That there is an unbelievable hypocrisy among so-called progressive people in relation to that. Brian, you and I are actually on the same page here, but I don’t think that, sorry, the ICJ took the case for that. I’m not quite sure what it should have done. You may think that it shouldn’t have given that order, and that’s fine. And if you have legal reasons for that, which I can see there being because there were two minority judgements, that too is fine. That’s a different case.

Q: Gerald, “Why can’t Hamas claim to be a portion of Palestine? "It’s not the problem that the Genocide Convention "not include self-defense. "Not a problem to explain how the two can…”

A: No, the Genocide Convention, of course, as it were, if it’s self-defense and you can show it pretty obviously, then Israel is right to say that. You can’t then be… If it’s a legitimate form of self-defense, you can’t be found guilty of the Genocide Convention. And that was what I said. What I meant by that was that the South African argument that self-defense is no justification for genocide is correct. But you have to ask yourself, what is the limits of self-defense? Now, quite obviously, the Israeli case was that this was self-defense and nothing more. And as I’ve indicated, it’s partly because at this stage with the low level of evidence and the facts that the court accepted that it came to the conclusion it did. But self-defense does play a role in this particular regard as it would in the others.

Q: Ronald, “What is your opinion of the strong view "that Israel should not have defended is ludicrous?”

A: No, I think it had to defend it. I think they were right to defend it. And I have to tell you that by going there, they watered down the order quite considerably. And I think that the presentation that Israel made was very impressive. If you were fair about this, you would’ve realised the kind of difficulties you’ve agonised about. And I think Israel realised it had to do that.

Jay, “Thank you for explaining the . "Yeah, thank you very much.” Jonathan says, “The real problem is truly that enthusiasm "to silence the Jews ironically is a feeling of guilt "to the Jews for the Holocaust.

"Nobody realised that excessive with their language "could be out of self-defense by defence of war entirely. "Take the exact case. "Israel proclaims it’s war and must annihilate Hamas "and its leaders because of terrorism.

Q: "How do you argue against this being an intent "to destroy a part?”

A: Well, the problem is, that is the exquisite question. Is the annihilation of Hamas as an organisation which is intent on killing every Jew is clearly an act which I would find very difficult to argue could not be brought within the framework of international law. The question, however, is when Israeli politicians conflate Hamas with Palestinians as a whole, when a third of your cabinet goes along to actually say that they should voluntarily be kicked out and that Gaza should be occupied by Israeli settlers, you’re in a difficult situation when it comes to a provisional standard. It may well be that at an international standard, sorry, a final standard, a very different consequence arises and I accept that. But I don’t think your proposition holds if you follow the law as I’ve tried to indicate. Let me just; oh, sorry, I’ve gone. Let me just. Sorry, I just flicked through.

“I’m pleased that you’ve read all the judgments. "But the question is you have to read the judgments "in the light of the rest of international law.” We can of course differ about this, and that’s your right. “I suggest that you’re premature in assuming "a ceasefire will not be ordered by the court. "The 30 day report plus comment may well…” It’s possible. It’s possible, but I seriously don’t think that’s going to be the case at all. But you may be right, I might be wrong and we can discuss that.

Q: “What if the infrastructure ends in Hamas "unavoidably contain genocidal effects ?”

A: Well, again, this is the point I’m trying to grapple with is the point of international law to a large degree doesn’t actually deal precisely with how to deal, how to canvas a people or a group who is intent on genocidal activity in this particular regard. How far does self-defense go? And I think, again, I have little doubt that if this case goes to finality, a very different result will probably arise precisely because of that. But I’m just emphasising that at a provisional level, something different was expected.

Sonya, “The ANC had a short memory when it comes "to who actually fought with them in the struggle. "Compared to the general population, "Jews were 250% of those in the fight to end apartheid "including my parents, Jaime and Esther Barsel.” Indeed they were. But I want to suggest to you that Jaime and Esther Barsel and others were a minority. The established Jewish community has a shameful approach to apartheid. I kind of learned early protest days precisely on that. That Jews have not been treated well under the circumstances, and the Teeger case is an example thereof. Absolutely true, but that’s a different matter.

Now, well Martin, I’m sorry, if that’s your feeling that you’re insulting animals. I don’t know.

Q: Jonathan again, “Well, you’re very active. "You appear to be bringing the case. "No personal disrespect whatsoever intended. I’m not a serving judge. "Are you not placed in a visitor’s position "in giving this lecture? "And are you the right person to do so?

A: "Many of us, including many lawyers and judges, "think that was a political act of warfare.” But I said that. I mean, I don’t know how many times you want me to say this. I think South Africa brought this case precisely because of the fact that it’s taken a view about where it stands in the international community. I’ve also said that South Africa stands accused of rank hypocrisy in so far as Sudan and Ukraine are concerned. Absolutely. Are these cases political? Absolutely. Was the Ugandan judge right to say that? Yes. Was the court wrong to find the law as it is? Again, I would want to suggest to you that there’s a very plausible case that they were right. And you can argue as much as you like about that. And yes, “many of us including lawyers and judges "think it was a political act of warfare.” Yes, hello. That’s hardly something which I wouldn’t agree with. But that doesn’t abstract the track from the proposition of trying to analyse this properly as lawyers.

Q: “Should not the PA have brought the charges in this case?”

A: Well, yeah. To be honest with you, I don’t quite know. You know, they are so hopeless. I mean, again, they could have brought the case because they’ve been recognised as a state by the ICC, I suppose. “The next stage in the process, there’ll be a report.” Well, basically, Israel is obliged to report within 30 days of the filing of the judgement , of that judgement having been handed down. South Africa has the right to reply. I actually think it’s, you know, there’ll be then a further dispute on both sides. Whether they’re going to want to hear any further evidence or arguments, I do not know. But I think it was basically a kicking for touch by the ICJ to be honest. But yes, I understand your feelings about the ANC in this regard perfectly.

Q: “Both sides claim victory. "How come no title?”

A: I’m just trying to explain this the best I can. And people who don’t like what I’m saying, it’s because they don’t like the result, and that’s fine. And I indicated earlier, you’re entitled to that. Yeah, I mean the problem is that the internet has played a very quite right manner. No, I don’t.

Q: Yehuda said, “In the previous ‘Lockdown,’ "you declined to agree that Israel’s not committed genocide? "Are you willing to say now whether…”

A: No, I don’t think Israel committed genocide if you take on the fact that did they intend to destroy in whole or in part. What I’m saying is something different. I’m saying that if you apply the low standard, it’s difficult to get around the difficulties around the finding of the court. But of course, when it comes to the final issue, Israel may well be. And many, many judges, including an erstwhile President of the Supreme Court of the United Kingdom has argued that Israel has committed breaches of international humanitarian law, not genocide. And I think those are cases which are probably more plausible than a final genocide case. Yes, ministers do say things, but that’s the problem. They can be used. There were no huge resources used for this case, Cheryl. My understanding is that all the South African lawyers acted for free.

Q: Ralph says, “How may judges look at the accusation "of genocide in the military response "to the initial perpetrators, "which inevitably resulted in colossal harm "given that the perpetrators embedded themselves "among citizens?”

A: Well, this is the problem. This is the problem. That I don’t think when the case finally comes to fruition, that the international law gets to the point where there’s been genocide as such. But whether in fact some of the other breaches of international law have been found, that’s a different matter. And we can debate that separately. Thank you very much for… Sorry, so thank you to those of you who were… This is not an easy issue. Let me say this again. And I perfectly understand. Let me say by way of conclusion that many of you feel strongly that the court should not have given the order that it did. And I understand that. I also understand the accusations that this was a political act. And I think most states do wave in a political fashion. And I think the argument which I’ve tried to make over and over again, that South Africa can be criticised for inconsistencies in this regard which you can draw whatever inferences you want to. That is your right. But I would want to urge upon you that you can say what you like that ministers can say. But if a series of ministers, including the President of Israel, say what they do, and the damage, extraordinary damage in Gaza: killing of children, et cetera, is there, if you were a judge, I’ll leave you with this thought. If you were a judge with no vested interest in either Israel nor Palestine, would you have simply said nothing? Or would you have said: I’m going to give some provisional order because it can help to reduce killing and maiming of children. I’m going to do that. And when you think about it, that is in a sense the motivation that Justice Barak had for at least finding that in relation to core parts of that order: humanitarian aid, and prosecution of those who perpetrate genocidal intent, that was justified. And I think that redounds hugely to his credit and to the Israeli judiciary. And for that perhaps more than anything else, we should be proud.

Thank you very much for your attendance. And please, God, may peace come to the region.