by Neville Teller
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.”
So there it is, in black and white, from the most authoritative source possible – the judge who presided over the ICJ when it heard the case, and who delivered the court’s decision in person following the hearing. The court did not decide that there is a plausible case of genocide to answer. The only conclusion to draw is that the continuing cry of “genocide in Gaza” from pro-Palestinian activists has no foundation in fact or law.
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.”