Punctuated with doubt

Who knows what the International Court of Justice meant?

May 27, 2024

Many voters in the UK general election on 4 July will be taking a close interest in how the main political parties react to decisions on Israel and Gaza from two international courts during the past week.

Last Monday, the prosecutor of the International Criminal Court announced that he was seeking arrest warrants for Israel’s prime minister and defence minister, as well as three leaders of the Hamas terrorist group based in Gaza. I wrote about this last Tuesday and have more to say about it this morning.

On Friday, the International Court of Justice issued an order to Israel under the Genocide Convention. The court also reiterated its calls for the “immediate and unconditional release” of hostages abducted by Hamas on 7 October last year. I shall be analysing the court’s studied ambiguity later in this piece.

Two courts

First, though, a quick explainer.

The International Criminal Court (ICC) “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression”.

It’s supported by states who have signed the court’s founding treaty, the Rome statute agreed in 1998. The ICC describes itself as “a court of last resort” which “seeks to complement, not replace, national courts”.

International Court of Justice giving judgment last Friday

The International Court of Justice (ICJ) is the “principal judicial organ of the United Nations”. It was established in 1946 and replaced a previous court set up in 1921 by the League of Nations.

Both courts are based in the Netherlands.

The ICJ sits at the Peace Palace in The Hague, opened in 1913.

The ICC is also in The Hague, but closer to the seaside resort of Scheveningen. Its purpose-built headquarters were opened in 2015.

ICC arrest warrants

Karim Khan KC, the ICC prosecutor, made a single announcement last Monday in which he sought warrants for the arrest of

Yahya Sinwar, the Hamas leader
Mohammed Deif, the Hamas military commander
Ismail Haniyeh, head of the Hamas political bureau
Benjamin Netanyahu, prime minister of Israel
Yoav Gallant, Israel’s minister of defence

The prosecutor accuses all five suspects of war crimes and crimes against humanity.

I was not the only writer to accuse Khan of moral equivalence — of treating the attacker and the defender in the same way. And yet the prosecutor seems not to have understood that this was how his announcement would be seen. I was told last Thursday he had been “devastated” by the international reaction to it.

That’s borne out by a lengthy interview he gave Christina Lamb on Friday for yesterday’s Sunday Times.

As the newspaper’s chief foreign correspondent writes:

Khan dismissed as “nonsense” suggestions that he was trying to establish moral equivalence with the charges.
“I am not saying that Israel with its democracy and its supreme court is akin to Hamas, of course not. I couldn’t be clearer: Israel has every right to protect its population and to get the hostages back. But nobody has a licence to commit war crimes or crimes against humanity…
He said he did not understand the shock at his announcement, given the continued failure of Hamas to return the hostages and of Israel to allow aid into Gaza…
By Friday morning when he spoke to me for 80 minutes from his office in The Hague, Khan, 54, was looking exhausted.

But the prosecutor’s attempts at self-justification failed to impress Lamb’s newspaper. In an editorial, it said this:

Karim Khan tells The Sunday Times today that the law cannot be applied selectively and that no commander should be able to act with impunity. Yet the implied equivalence between Israel’s elected leaders and the Hamas terrorists who last year ordered the bloody attacks on its civilians is grotesque.
The ICC’s intervention comes before the conflict has even ended. It will do nothing to help bring about a ceasefire and the freeing of the remaining Israeli hostages — not that helping is its legal remit.

Fortunately, the power to issue arrest warrants is not one that Khan himself enjoys. “It is now for the judges of the Pre-Trial Chamber I to decide whether the necessary standard for the issuance of warrants of arrest has been met,” the court said.

That pre-trial chamber comprises three judges:

Judge Iulia Motoc, from Romania, who will preside;
Judge Reine Alapini-Gansou, from Benin; and
Judge Nicolas Guillou, from France.

Motoc and Guillou have so far served less than three months of their nine-year terms.

The judges would be well advised not to rush into a decision. If the ICC’s claim to be a court of last resort is to be more than an empty promise, the chamber must allow the Israelis sufficient time to investigate Khan’s allegations. Those investigations cannot be completed while the conflict is continuing.

Khan also needs to respond to comments by the Israeli president Isaac Herzog in an interview with Piers Morgan last Wednesday.

President Herzog said:

This announcement by the prosecutor has been carried out in bad faith…
We agreed to have a dialogue and bring the prosecutor to Israel. His chief of staff was supposed to land in Israel at 6pm two days ago [20 May]. And, all of a sudden, he rescinded his visit and the announcement came out. And it shocked all of us because we act in good faith and we are waiting to have a dialogue with any international body that is relevant and honest…
In international law, you have a rule which is called complementarity — meaning that if there is a state that is democratic, and has a very strong law enforcement arm, and can adjudicate and investigate and judge, then that nation is exempt from any steps by the International Criminal Court.

To emphasise the independence of the Israeli criminal justice system, Herzog reminded viewers that Netanyahu is currently on trial in the Jerusalem district court. The president might have added that one of his predecessors and a former prime minister have served prison terms in Israel.

ICJ order

Last Friday, the ICJ ruled on a request by South Africa for further provisional measures against Israel. Temporary orders had already been made in January and March under the Genocide Convention, to which Israel is a party.

As before, South Africa did not get what it had been asking for. But the court did approve, by 13 votes to two, the following provisional measure:

The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate…
Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part…

Does that mean Israel must simply halt its military offensive in the Rafah Governorate?

If so, it would have stopped Israel responding to the barrage of rockets fired from Rafah towards Tel Aviv yesterday.

Or does it mean Israel must “halt its military offensive… which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction”? In other words, can it continue military action against terrorists that does not bring about the physical destruction of the Palestinian group in Gaza, even in part?

Paragraph 50 of the full order is similarly ambiguous. So we need to look at separate opinions written by some of the court’s judges.

Judge Aurescu, from Romania, immediately spotted the confusion:

I consider that the second provisional measure indicated… is somehow unclear as to whether the last part of it (starting with “which may inflict”) only refers to “any other action” (which is not defined) or to both halting the Israeli military offensive and “any other action”.
In my view, this measure needs to be interpreted that it indicates as well the halt of the Israeli military offensive to the extent that it “may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”.

The court should have made it clear, Aurescu added, that its provisional measures

do not affect in any way the legitimate right of Israel to undertake actions, which should be conducted in strict conformity with international law, including in a manner responding to the criteria of proportionality and necessity, to protect its civilian citizens and to free the hostages still held in the Rafah area by Hamas and other armed groups.

Judge Tladi, from South Africa, also voted in favour of the provisional measures. But, he added:

the court has ordered Israel to “halt its military offensive in Rafah”. The reference to “offensive” operations illustrates that legitimate defensive actions, within the strict confines of international law, to repel specific attacks, would be consistent with the order of the court.
What would not be consistent is the continuation of the offensive military operation in Rafah, and elsewhere, whose consequences for the rights protected under the Convention on the Prevention and Punishment of Genocide has been devastating.

The first paragraph is clear enough: Israel may continue to defend itself. But the second paragraph is as confusing as the court’s order. Does it mean that the operation in Rafah and elsewhere has necessarily had a devastating effect on rights protected by the Genocide Convention? Or does it mean that Israel must stop only those operations that may have a devastating effect on these rights?

Judge Nolte, from Germany, voted for the order but “only after considerable hesitation”. To support the majority position, he explained,

it is not necessary to find that it is plausible that the current military offensive in Rafah, or the military operation in the Gaza strip more generally, as such is being pursued with genocidal intent.
Indeed, I remain unconvinced that the evidence presented to the court provides plausible indications that the military operation undertaken by Israel as such is being pursued with genocidal intent.
The reason for today’s measure is, in my view, that Israel has not sufficiently demonstrated that it can “enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians” without limiting its current military offensive in Rafah.

Nolte added:

The court’s order does not address military operations outside Rafah and the measure obliging Israel to halt the current military offensive in Rafah is conditioned by the need to prevent “conditions of life that could bring about [the] physical destruction in whole or in part” of the Palestinian group in Gaza.
Thus, this measure does not concern other actions of Israel which do not give rise to such a risk.

That suggests Nolte believes Israel may continue its operations in Rafah provided they do not endanger the rights of the Palestinian people under the Genocide Convention.

Lost in translation?

One writer has suggested that the ambiguity in the key paragraph results from the fact that many of the judges speak English as a second language. Another concludes, rather splendidly, that the ruling is “punctuated with doubt”.

But the agreed wording was no oversight. Aurescu was not the only judge who drew attention to it before the order was delivered. The ambiguity must have been a deliberate compromise designed to allow as many judges as possible to share a common position.

Minority opinions

One member of the court who refused to go along with such obfuscation was Judge Sebutinde from Uganda, recently elected as vice-president of the ICJ. In her dissenting judgment, she wrote:

Once again, South Africa has invited the court to micromanage the conduct of hostilities between Israel and Hamas. Such hostilities are exclusively governed by the laws of war (international humanitarian law) and international human rights law, areas where the court lacks jurisdiction in this case.
Regrettably, the wording of the court’s directive… ordering Israel to “halt its military offensive… in the Rafah governorate”, is susceptible to ambiguity and could be misunderstood or misconstrued as ordering an indefinite, unilateral ceasefire, thereby exemplifying an untenable overreach on the part of the court.
In my understanding, the objective of the court is to order Israel to suspend its military offensive in Rafah only in so far as such suspension is necessary to prevent the bringing about of conditions of life that could bring about the destruction of the Palestinians in Gaza.
In my view, a suspension of Israel’s military offensive in Rafah, whether temporary or indefinite, has no link to South Africa’s plausible rights or Israel’s obligations under the Genocide Convention…
This directive, which could be erroneously misunderstood as mandating a unilateral ceasefire in part of Gaza, amounts to micromanaging the hostilities in Gaza by restricting Israel’s ability to pursue its legitimate military objectives, while leaving its enemies, including Hamas, free to attack without Israel being able to respond.
This measure also implicitly orders Israel to disregard the safety and security of the over 100 hostages still held by Hamas, a terrorist organisation that has refused to release them unconditionally.
I firmly believe that Israel has the right to defend itself against its enemies, including Hamas, and to continue efforts to rescue its missing hostages. These rights are not incompatible with its obligations under the Genocide Convention.

This is, as I mentioned, a dissenting judgment. But Sebutinde is telling us what she understands her fellow judges to have called for — and that was certainly not a unilateral ceasefire in Rafah.1

Sebutinde was also supported by Judge Barak, nominated by Israel to take part in the hearing. He said that the operative part of the ICJ ruling

requires Israel to halt its military offensive in the Rafah governorate only in so far as is necessary to comply with Israel’s obligations under the Genocide Convention. In this sense, it merely reaffirms Israel’s existing obligations under the convention.
Even without an order issued by the court, a military offensive that may result in a violation of a state’s obligations under the Genocide Convention would have to stop. Israel has never disputed this.
Thus, the measures indicated by the court differ decisively from those requested by South Africa. Instead of ordering a blanket suspension and a total withdrawal from the Gaza strip, the court’s order is expressly limited to offensive action in the Rafah governorate.
Since the measure contains an explicit link to Israel’s existing obligations under the Genocide Convention (“which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”), Israel is not prevented from carrying out its military operation in the Rafah governorate as long as it fulfils its obligations under the Genocide Convention.
As a result, the measure is a qualified one which preserves Israel’s right to prevent and repel threats and attacks by Hamas, defend itself and its citizens, and free the hostages.

Misreporting

Not for the first time in this case, the court’s order has been widely misreported. The barrister and commentator Natasha Hausdorff reminds us of this in today’s Telegraph.

On this occasion, however, the confusion was more forgivable — it seemed the court wanted its ruling to mean different things to different sides. Why else would it have published an ambiguous ruling on a Friday afternoon with no further guidance for reporters?

It was not until the judges’ individual opinions appeared later that the position became clear. Hausdorff sees no ambiguity in the order: she says it “amounts to a directive by the court, consistent with its previous approach, that Israel abide by the Genocide Convention”.

Israel’s reaction

Once Jerusalem had understood that the court was not ordering a unilateral ceasefire, Israel’s National Security Council and its Ministry of Foreign Affairs issued a joint statement that was carefully calibrated to meet the ICJ’s requirements.

It said:

Israel has not and will not conduct military actions in the Rafah area which may inflict on the Palestinian civilian population in Gaza conditions of life that could bring about its physical destruction in whole or in part.
Israel will continue its efforts to enable humanitarian assistance and will act, in full compliance with the law, to reduce as much as possible harm caused to the civilian population in Gaza.
Israel will continue to enable the Rafah crossing to remain open for the entry of humanitarian assistance from the Egyptian side of the border, and will prevent terror groups from controlling the passage.

“The genocide charges brought by South Africa against Israel were “false, outrageous and morally repugnant”, the statement added. “ Israel is acting based on its right to defend its territory and its citizens, consistent with its moral values and in compliance with international law, including international humanitarian law.”

The general election

Foreign conflicts are not normally issues on which general elections are won or lost in the United Kingdom. But supporters of Israel — as well as demonstrators whose slogans suggest they want to see the Jewish state wiped out — will be monitoring the political parties’ positions carefully ahead of the vote on 4 July.

Although there will no longer be any MPs by the end of this week, ministers remain members of the government. Shadow ministers retain their responsibilities too.

In the House of Lords last Tuesday, the foreign secretary Lord Cameron of Chipping Norton was highly critical of the ICC prosecutor’s decision.

He said:

I do not believe for one moment that seeking these warrants will help get the hostages out, help get aid in, or help deliver a sustainable ceasefire. As we have said from the outset, because Israel is not a signatory to the Rome statute, and because Palestine is not yet recognised as a state, we do not think that the court has jurisdiction in this area.
I would go beyond that and say that, frankly, this is mistaken in terms of position, timing and effect. To draw a moral equivalence between the Hamas leadership and the democratically elected leader of Israel is just plain wrong. It is not just Britain saying that; countries all over Europe and the world are saying that.
On timing, I point out to your lordships’ house that the ICC was about to embark on a visit to Israel, which some of us had helped to arrange, and at the last minute decided to cancel that visit and simply go ahead with its announcement. It is not normally for the ICC to think about the effect but, as it clearly thought about the timing, maybe it should also think about the effect.

A similar response by Cameron’s deputy Andrew Mitchell, in the Commons a day earlier, drew sharp criticism from the shadow foreign secretary. “There must be an immediate ceasefire,” insisted David Lammy. “Labour has been opposed to an Israeli offensive in Rafah for months.”

Lammy’s approach was welcomed by his backbench colleagues. One accused Israel of starving civilians and blocking aid. Another called for an immediate ceasefire and the suspension of arms sales to Israel while the conflict continued.

Jews in the UK have been shocked by the level of antisemitism they have encountered since Hamas launched its attack on Israel on 7 October last year. They know that Sir Keir Starmer has effectively thrown his predecessor Jeremy Corbyn out of the Labour Party but they remain unsure of where Labour stands on challenging antisemitism among its supporters. They suspect there are more votes to be gained by opposing Israel than by supporting its right to self-defence.

That’s why so many voters are now waiting to hear what the main political parties make of Friday’s ruling from the ICJ.

Barak

Those who are unsure where justice lies would do well to read the closing paragraphs of Barak’s dissenting judgment. On a broader level, his remarks could also be read with profit at the ICC. Bear in mind that he is no friend of Netanyahu.

Israel’s temporary ICJ judge said:

Like every state, Israel has the fundamental right to protect its citizens and itself. This right receives a special dimension in the case of the hostages, in the sense that it imposes a duty on the state to do everything in its power to bring them back to Israel. The fulfilment of this duty is not in conflict with Israel’s obligations under the Genocide Convention because it stems from Israel’s intent to protect its citizens and not from an intent to commit acts prohibited under the Genocide Convention.
As I have written in my first opinion in this case, “[i]t is to protect these values that Israel’s daughters and sons have selflessly paid with their lives and dreams, in a war that Israel did not choose”.
The key to ending this war does not lie in asking the court to intervene in this conflict by making unsubstantiated allegations of genocide against Israel. The key to ending this war lies in the hands of Hamas. Hamas has started the war and can finish it by releasing the hostages and by fully respecting the security of the State of Israel and its citizens.
The court is in a difficult position and facing great pressure. Even so, the court should not have sacrificed the integrity of the Genocide Convention and overstepped the limits of its jurisdiction in response to public pressure. The urge to “do something” is understandable, particularly as the ceasefire request comes before this court for the fourth time. But this cannot be sufficient…
I underwent similar experiences in my 28 years as a judge on Israel’s Supreme Court. The only way that I found to be truthful as a judge was to leave aside the “background noise” and focus purely on the legal reasoning. This is the only common language that we judges have. We cannot be bothered by political, military or public policy troubles. We can only be concerned with legal troubles. We are a court of law, not one of public opinion.

Barak concluded: “When we judges sit at trial, we also stand on trial. We will not be judged by hysteria and the fleeting waves of the hour, but by history.”

Update 28 May: the BBC’s home and legal correspondent has written an analysis of the ICJ ruling mentioning the concurring and dissenting judgments.

Sebutinde also complained that her colleagues had not given Israel enough time to engage its chosen counsel because of the “exceptionally abbreviated time-frame” arranged for the hearings. “It is also regrettable that Israel was required to respond to a question posed by a member of the court over the Jewish sabbath,” she said. “The court’s decisions in this respect bear upon the procedural equality between the parties and the good administration of justice by the court.”