Lawyers’ letter based on error
International Court did not find ‘plausible risk of genocide in Gaza’
An open letter to the prime minister and signed by 600 senior lawyers and former judges contains a disturbing error. The letter accuses the UK of failing to meet its obligations under the Genocide Convention.
In its third paragraph, the letter says that on 26 January 2024 the International Court of Justice “concluded that there was a plausible risk of genocide in Gaza”. This error is repeated by the Guardian in its report of the letter. There are several further references in the lawyers’ letter to “the ICJ’s finding of plausible risk”.
The words “plausible risk” appear nowhere in the court’s order. They are a misrepresentation of what the court concluded in paragraph 54 of its judgment:
In the court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in article III [of the Genocide Convention], and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the convention.
This finding is quoted accurately on the second page of the lawyers’ letter. But that makes the letter’s multiple misrepresentations all the more unforgivable.
As the court explains, its power to indicate provisional measures — temporary orders — depends on a finding that the rights asserted by the party requesting such measures are at least plausible. But, as the court adds, it does not have to decide whether these rights exist.
South Africa, which brought the claim against Israel, referred to the rights of the Palestinians in the Gaza Strip to be protected from acts of genocide. Those are obviously plausible rights under the Genocide Convention. And the court accepted that some of the provisional measures requested by South Africa were aimed at preserving those rights. “Therefore, a link exists between the rights claimed by South Africa that the court has found to be plausible and at least some of the provisional measures requested.”
In simple terms, it is the Palestinians rights’ that were found to be plausible — not the risk they may face. This is a distinction of major importance. The most that the court found was that there was a risk of irreparable prejudice to the rights found by the court to be plausible if provisional measures were not issued. If that meant there was a plausible risk of genocide, the court would have said so.
The letter published today is signed by Lady Hale and two of her former colleagues on the Supreme Court as well as four former lords justices of appeal. I am sure that, when sitting as judges, they would have taken more care before adding their names to judgments drafted by others.
Update 6 April: More than 400 lawyers so far have signed a new letter to the prime minister criticising errors in the letter by other lawyers published yesterday.
They say that the first letter
repeatedly claims that the International Court of Justice concluded… on 26 January 2024 that there was a “plausible risk of genocide” in Gaza. This is incorrect.
The court’s ability to issue a provisional measures order depends on a finding that the rights asserted by the party seeking the order are at least plausible. It is of course plausible that Palestinians in the Gaza Strip have rights to be protected from acts of genocide. Thus, it is the rights of the Palestinians in the Gaza Strip that were determined to be plausible and not the alleged commission of genocide against them.
I am pleased to see the points I made yesterday being endorsed by so many distinguished lawyers. Today’s letter is much more detailed than my own comments and the full text is available to read online.
Update 1530: I’m told the letter has now been signed by more than 600 lawyers.
Update 6 April: this piece is generously cited by Charles Moore (Lord Moore of Etchingham) in today’s Telegraph.
As a recently retired solicitor and accredited mediator (of mainly Welsh descent and certainly identity), who has signed none of the, now four letters - two on each 'side', I look on with surprise, dissappointment and concern as 'heavyweights' in the legal world of England and Wales disagree so fiercely and 'throw brickbats' at each other. It is, I am afraid, an unedifying spectacle and not one that is likely to increase the government's or public's trust and confidence in either the judiciary (albeit retired) or the legal profession(s). The rest of the world is likely to see it as another sign of 'Broken Britain'.
I realise and understand the emotive nature of the issues relating to Hamas' continuing war crimes and the awful humanitarian situation in Gaza, but surely the retired judiciary and lawyers of England and Wales could show a better example, in particular of how to deal with difficult legal and moral issues in a way that cools the temperature, rather than increases it. In particular, this calls for understanding of the opposing group's outlook and, whilst recognising the strong feelings that exist, seeking to use rationality and good legal thought to clarify the legal points at issue and narrow the gap between the two 'sides' (regrettable though it is to have to use that word).
I have read the first and second letters and the ICJ's Order of 26 January 2024, though not yet the third and fourth letters or the second ICJ Order (though I am aware of its nature). My current view on the contentious use of the word "plausible", in relation to rights claimed or risk of genocide, is that the root of the problem lies with the judges of the ICJ, over many years and decisions, in not stating clearly what they mean when considering that element of the ICJ's rules as to the 'indication' of 'provisional measures'. Whilst they state that they are deciding on plausibility of rights claimed under whichever Convention is at issue, on occasion they include in their consideration the plausibilty of rights + facts, which equals what an English or Welsh judge, lawyer or academic would probably call a 'cause of action'. In the Order at issue, the ICJ considered various reports on the (alleged) factual position and circumstances, but then referred only to a decision on plausibility of rights claimed. Moreover, it is not clear how high or low is the hurdle of 'plausibility', an imprecise term, even for those whose first language is English. This is a recipe for confusion and the ICJ is serving the world badly in not explaining properly what they mean.
The true position, as I see it, is that the ICJ's lack of clarity is the primary cause of the present dispute, and that it is more nuanced and less polarised than the correspondence I have read sets out. If all concerned could accept that, they can surely begin to find a way forward that is more positive and less confrontational.
I have not signed the letter - and I have stated no view on its contents. I also have avoided commenting in particular on this issue, as others are better placed.
But I do have a question for clarification.
Taking the error you set out at its highest, do you think the rest of the letter stands? Or do you think the error such that the rest of the letter falls too?
From my reading it seems that the rest of the letter still stands, even if the point you make is taken fully.