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How the ICJ ruling is being misrepresented

Publish date: 12 February 2024
Issue Number: 1063
Diary: IBA Legalbrief Africa
Category: General

‘The proliferation of myths concerning the outcome of the ruling obtained by SA at the International Court of Justice (ICJ) on 26 January appears to be the next step in the SA Government’s use of lawfare to advance its campaign to de-legitimise Israel. Nobody could be that far off in misconstruing a ruling without a motive to spread disinformation.’ So says Faryn Kantor – an advocate at the Johannesburg Bar – noting President Cyril Ramaphosa claimed Israel was ordered to ‘prevent any further acts of genocide in Gaza’ and ‘desist from such acts’. This, says Kantor, falsely implied that the ICJ found Israel to have already committed genocidal acts. She adds this was echoed by International Relations & Co-operation Minister Naledi Pandor in a press release, where the ruling was incorrectly portrayed as containing a finding that Israel’s acts were ‘plausibly genocidal’. In her opinion piece in Business Day, Kantor notes SA’s main goal at the ICJ has always been for an order against Israel to immediately and unilaterally suspend its military operations in Gaza. ‘The intended consequence was to render Israel defenceless against any further attack. But the ICJ did not make this ruling against Israel, despite it having made a ruling in March 2022 against Russia “to immediately suspend its military operations” against Ukraine.’ She adds even though SA’s allegations of genocide against Israel spanned Israel’s entire existence since 1948, the ICJ was unpersuaded to grant an order that Israel suspend its military operations. Kantor says: ‘The idea that the ICJ would, in the first instance, order a sovereign member state to unilaterally suspend its military operation against a genocidal, internationally proscribed terrorist organisation – leaving it defenceless – is an absurdity. To imply that it would do so without saying so expressly – thus rendering the order open to interpretation by politicians – is out of touch with judicial process.’

Kantor says statements saying that the ICJ ordered Israel to desist from genocidal acts or that its acts were found to be plausibly genocidal are ‘similarly’ misconceived. The ICJ could not, and did not, make a finding on whether Israel’s acts constitute genocide or were ‘plausibly genocidal’. These statements, she argues, add words to the order that are not there. ‘The order that Israel take measures within its power to prevent acts of genocide as defined under the Genocide Convention (to which it is already a signatory) is not based on any finding that Israel has breached the convention.’ ICJ President Joan Donoghue made it clear that the court was not called on as part of the interim measures ‘to establish the existence of breaches of obligations under the Genocide Convention’, and it made no finding to that effect. Kantor adds the ICJ’s findings were limited only to whether the rights claimed by SA were plausible. Donoghue found that ‘at least some of the rights claimed by SA’ were plausible, such as ‘the right of the Palestinians in Gaza to be protected from acts of genocide’. Kantor comments: ‘It is disingenuous to confuse the plausibility of a right to protection under the Genocide Convention with whether a breach of the right has in fact taken place.’ She concludes: ‘These misrepresentations of the order are not benign. Imposing obligations on Israel that are not part of the order enables politicians to create the impression that Israel is not complying with the order.’

Full opinion piece in Business Day

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