Published in the Jerusalem Post, 21 May 2024
The USA’s well-respected National Public Radio
(NPR) network published these words on January 26, 2024: “The International Court of Justice (ICJ)
has found it is "plausible" that Israel has committed acts that
violate the Genocide Convention.”
As the world’s press
and online media reported the ICJ’s decisions in the case brought before it by
South Africa, which had charged Israel with committing genocide in Gaza, this
same form of words appeared time and again.
What is not generally known, however, is that the judge who presided
over the court and who actually delivered the court’s decision, maintains that the
world’s media were wrong then, and have been repeating the incorrect
interpretation of the court’s decision ever since. This is not, Judge Joan Donoghue says, at all
what the court decided.
On April 25, Judge Donoghue, the president of the ICJ when hearing the case, was interviewed on the long-running BBC television program Hardtalk to mark her retirement. Her interviewer, Stephen Sackur, asked her if the key point the court considered in reaching its preliminary decision was whether there was a plausible case that Israel had committed genocide in Gaza following the Hamas attack of October 7.
“You quite clearly decided that there was a plausible case,” said Sackur. “Is it right to say that’s at the heart of what you decided?”
Interviewer and guest
had clearly agreed that this question would be put quite early on. Judge Donoghue responded: “I’m glad I have
the chance to address that.”
She
began by explaining that the court’s test for deciding whether to impose
measures – that is, to require certain
steps to be taken by parties to the proceedings – uses the idea of plausibility. The test, however, is the plausibility of the
rights asserted by the applicant – in this case, South Africa. So what the court decided was that the
Palestinians had a plausible case to be protected from genocide, and that South
Africa had the right to pursue that claim in the court. That is doubtless why
the court ordered Israel to take special care to avoid infringing those rights.
“It then looked at the facts as well,” continued Judge Donoghue, “but it did not decide – and this is something where I’m correcting what’s often said in the media – it did not decide that the claim of genocide was plausible….The shorthand that often appears, that there is a plausible case of genocide, is not what the court decided.”
Later
in the interview Sackur asked why the court had dealt only superficially with
Hamas. Judge Donoghue explained. “The court has jurisdiction only over cases
between states, and Hamas is not a state.
The court is not in a position to order Hamas at all. The only thing we could do – and we did do,
at the very end of our reasoning – was
to state very specifically that we condemned what Hamas had done, and to call
for the immediate and unconditional release of the hostages. We felt that was very important.”
Unfortunately
Judge Donoghue’s clarification of the ICJ ruling has received comparatively
little media coverage, and the idea that Israel has been found guilty of
“plausible genocide” persists across the media.
It is reiterated again and again because those peddling it find it suits
their anti-Israel agenda.
On May 12 the Egyptian Ministry of Foreign Affairs announced that
Cairo intended to join the case brought by South Africa before the ICJ. Their reason?
Egypt perceives that Israeli aggression against Palestinian civilians is
escalating. The Iran-based MEHR media
group that released the story could not resist slipping in, to substantiate
Egypt’s decision even further, what Judge Donoghue termed the widely-believed,
but false, “shorthand”:
“The top United Nations
court,” ran the MEHR report, “issued an interim ruling in January that found
there was a plausible risk of genocide in the enclave.”
That is a
misinterpretation of the court’s findings, but at lest makes no
accusation. The student protesters
participating in campus sit-ins in the States, their copy-cat British
counterparts, the weekly pro-Palestinian marchers through London and other
cities – all go one stage further, maintain that Israel is indeed committing
genocide in Gaza, and constantly repeat their demand that Israel be stopped.
Nowhere are the ICJ’s
findings more misunderstood than within the UN itself, where groups and
individuals with their own anti-Israel agendas fling the term “genocide” around
with abandon.
On March 21, Francesca
Albanese, the UN Special Rapporteur on human rights in the Occupied
Territories, presented the Human Right Council with a report called "The
Anatomy of a Genocide".
"I find that there are reasonable grounds to believe that the threshold indicating the commission of the crime of genocide against Palestinians as a group in Gaza has been met," she said, and proceeded to call for sanctions against Israel and an arms embargo.
Israel's diplomatic
mission in Geneva said the use of the word genocide was "outrageous"
and that the war was against the Islamist group Hamas, not Palestinian
civilians.
Albanese, an Italian
lawyer, is one of dozens of independent human rights experts mandated by the UN
to report and advise on specific themes and crises. A US ambassador in Geneva has
said she has a history of using “antisemitic tropes”.
This constant assertion
by the pro-Palestinian lobby that Israel is engaged in genocide in Gaza may be
part of a strategy aimed at influencing the ICJ’s final decision on the charge
brought by South Africa, years away though that decision probably is. Meanwhile, the best thing that pro-Israel
spokespeople can do is to publicize, as widely as possible, Judge Joan
Donohue’s rejection of the commonly held misconception of the ICJ’s findings –
namely that there was a plausible case that Israel was committing genocide in
Gaza.
“That,” Judge Donoghue has
said unequivocally, “is not what the court decided.”
https://www.jpost.com/opinion/article-801937
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