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.
Joshua, I know that you and I would always be able, civilly and respectfully, to agree to disagree. I find myself in agreement with the thrust of your earlier contributors’ views, including my good friend Ben Rigby.
Thank you. We are all deeply concerned about the current situation. The issue raised by this letter is whether the UK has obligations under international law. And its claims seem to me to be based, in whole or in part, on a false premise.
Interesting, but I am not sure if, ultimately this distinction or misrepresentation wholly diminishes the scale or validity of the overall concerns of lawyers and judges expressed on this highly polarised situation. These concerns are increasingly shared by many in the public, although by no means all, including some prominent commentators.
"In simple terms, it is the Palestinians rights’ that were found to be plausible — not the risk they may face." This, not the letter you are critiquing, is a substantial misrepresentation of the court's decision on 26 January. It is of course entirely uncontroversial that Palestinians, as all groups, have in principle a right to be protected against genocide. The court's decision was not limited to finding that abstract right (or South Africa's standing, though this was one issue) plausible.
Rather, the decision went on to find that "irreparable prejudice could be caused to rights which are the subject of judicial proceedings" - paras 61 to 74. That is the test for interim relief, as is unsurprising - it would not make sense for interim measures to be a possibility without there being a plausible factual case that the rights contended for not only exist but are or are going to be violated, and an urgent need to prevent that plausible violation.
You are of course right that the court did not use the words 'plausible risk'. It found, in circumstances where South Africa's case was that the state of Israel was breaching its obligations under the Genocide Convention, that (i) the rights contended for were plausible, and (ii) there was 'a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision' (rejecting Israel's contention, recorded at para 64, that there was no real and imminent risk). That is in substance a finding that there is a 'plausible risk' of ongoing breach of the Genocide Convention. But your article above ignores the latter finding, while accusing the letter signatories of misrepresentation.
That you disagree with others' interpretation of the judgment is substantially different to those others seriously (and "disturbingly") misrepresenting the judgment, which is what your article suggests.
To the above, I would add that even the discussion of the rights being 'plausible' (paras 35 to 59) was not simply focussed on the abstract existence of the rights, but also on whether there was a plausible case that the rights are being breached by Israel. See para 40 ("According to the Respondent, the Court has also to consider the claims of fact in the relevant context, including the question of the possible breach of the rights claimed") and then paras 46 to 53, which are plainly concerned with the question of possible breach (discussing Israel's activities in Palestine) not simply the existence of the right in the abstract.
The 'rights being plausible' at para 51 thus means 'the allegation of breach is plausible'. Again, that is unsurprising, given the test for interim relief to be granted.
You are of course free to disagree with this reading of the judgment, but to accuse the letter of seriously misrepresenting it is unfounded.
Lord Sumption has just made clear on Today that the signatories recognised it was not a final judgment of the ICJ. But the “plausible risk” view was sufficient to justify the reasoned letter to the PM. Was this such a grave error as you suggest?
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.
Thank you. Another factor to consider — as I tried to explain here https://www.lawgazette.co.uk/commentary-and-opinion/what-the-icj-genocide-ruling-means-for-israel/5118646.article — is that judgments of a multi-judge international courts tend to be linguistic compromises that are intended to be acceptable to as many members of the court as possible.
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.
Here's the piece I just mentioned: https://melaniephillips.substack.com/p/lawyers-for-blood-libels
From the conclusion on pages 16/17, it seems to me that most if not all of the legal arguments rely on a false premise.
For a rebuttal of the political points made, I'd refer you to a blog (not by me) that will appear in the next hour or so: link to follow.
Joshua, I know that you and I would always be able, civilly and respectfully, to agree to disagree. I find myself in agreement with the thrust of your earlier contributors’ views, including my good friend Ben Rigby.
Thank you. We are all deeply concerned about the current situation. The issue raised by this letter is whether the UK has obligations under international law. And its claims seem to me to be based, in whole or in part, on a false premise.
Interesting, but I am not sure if, ultimately this distinction or misrepresentation wholly diminishes the scale or validity of the overall concerns of lawyers and judges expressed on this highly polarised situation. These concerns are increasingly shared by many in the public, although by no means all, including some prominent commentators.
"In simple terms, it is the Palestinians rights’ that were found to be plausible — not the risk they may face." This, not the letter you are critiquing, is a substantial misrepresentation of the court's decision on 26 January. It is of course entirely uncontroversial that Palestinians, as all groups, have in principle a right to be protected against genocide. The court's decision was not limited to finding that abstract right (or South Africa's standing, though this was one issue) plausible.
Rather, the decision went on to find that "irreparable prejudice could be caused to rights which are the subject of judicial proceedings" - paras 61 to 74. That is the test for interim relief, as is unsurprising - it would not make sense for interim measures to be a possibility without there being a plausible factual case that the rights contended for not only exist but are or are going to be violated, and an urgent need to prevent that plausible violation.
You are of course right that the court did not use the words 'plausible risk'. It found, in circumstances where South Africa's case was that the state of Israel was breaching its obligations under the Genocide Convention, that (i) the rights contended for were plausible, and (ii) there was 'a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision' (rejecting Israel's contention, recorded at para 64, that there was no real and imminent risk). That is in substance a finding that there is a 'plausible risk' of ongoing breach of the Genocide Convention. But your article above ignores the latter finding, while accusing the letter signatories of misrepresentation.
Thank you. I quoted the reference to "irreparable prejudice". I don't think that means "plausible risk of genocide".
That you disagree with others' interpretation of the judgment is substantially different to those others seriously (and "disturbingly") misrepresenting the judgment, which is what your article suggests.
To the above, I would add that even the discussion of the rights being 'plausible' (paras 35 to 59) was not simply focussed on the abstract existence of the rights, but also on whether there was a plausible case that the rights are being breached by Israel. See para 40 ("According to the Respondent, the Court has also to consider the claims of fact in the relevant context, including the question of the possible breach of the rights claimed") and then paras 46 to 53, which are plainly concerned with the question of possible breach (discussing Israel's activities in Palestine) not simply the existence of the right in the abstract.
The 'rights being plausible' at para 51 thus means 'the allegation of breach is plausible'. Again, that is unsurprising, given the test for interim relief to be granted.
You are of course free to disagree with this reading of the judgment, but to accuse the letter of seriously misrepresenting it is unfounded.
Thank you; and I am happy to publish your courteous and measured comments. I don't think either of us is going to persuade the other, though.
Lord Sumption has just made clear on Today that the signatories recognised it was not a final judgment of the ICJ. But the “plausible risk” view was sufficient to justify the reasoned letter to the PM. Was this such a grave error as you suggest?
My view is that this is a misrepresentation of the court's findings. The court did not find a "plausible risk".