Full Marks to Natasha Hausdorff. Your only need to follow her analysis to see that the suggestion that it is not a rational response to assert that it is almost unarguable. But how timely to have he analysis confirmed by the Head of the ICJ herself.
I’m afraid all this shows, apart from anything else, is that retired judges (of whatever view) are very unwise in allowing their normal reticence to be overcome and in then signing letters (no doubt drafted by somebody else) for publication. I am no international lawyer, but if we do away with the word ‘plausible’ (with its sense of ‘believable’ or ‘credible’) and replace it with the word much more commonly and helpfully used in English and Welsh law in preliminary proceedings, ‘arguable,’ we seem to be left with the unsurprising conclusion, thus far, that Palestinians have the right not to be subjected to genocide but that South Africa has an arguable case that they are. Nothing substantive has been decided. How many cases are held to arguable at a preliminary stage, but on much more detailed investigation and after further erudite argument are shown to be entirely misconceived or ill-founded? Rather a lot, I would have thought!
If a group of such eminent lawyers can be bewitched by language, to adapt a phrase of Wittgenstein, what hope is there for ordinary people not ‘learned in the law’?
Joshua, this is a very important point. But the distinction between what the court intended vs how it’s been widely interpreted is very difficult for ordinary people to understand. Can you find a way to communicate it more clearly? Maybe use examples (possible from history) or other techniques to illustrate the difference.
Oh Dear
I meant "You only need to follow her analysis to see that it is not a rational response to assert that it is almost unarguable"
Too much haste!
Full Marks to Natasha Hausdorff. Your only need to follow her analysis to see that the suggestion that it is not a rational response to assert that it is almost unarguable. But how timely to have he analysis confirmed by the Head of the ICJ herself.
I’m afraid all this shows, apart from anything else, is that retired judges (of whatever view) are very unwise in allowing their normal reticence to be overcome and in then signing letters (no doubt drafted by somebody else) for publication. I am no international lawyer, but if we do away with the word ‘plausible’ (with its sense of ‘believable’ or ‘credible’) and replace it with the word much more commonly and helpfully used in English and Welsh law in preliminary proceedings, ‘arguable,’ we seem to be left with the unsurprising conclusion, thus far, that Palestinians have the right not to be subjected to genocide but that South Africa has an arguable case that they are. Nothing substantive has been decided. How many cases are held to arguable at a preliminary stage, but on much more detailed investigation and after further erudite argument are shown to be entirely misconceived or ill-founded? Rather a lot, I would have thought!
If complex issues must be reduced to a headline, here's mine: TOP BRITISH JUDGES CAN'T UNDERSTAND LAW.
Not surprised to see Lady Hale in that group, but Lord Sumption's presence was disappointing.
Perhaps the letter from the lawyers was a case of ‘groupthink’
If a group of such eminent lawyers can be bewitched by language, to adapt a phrase of Wittgenstein, what hope is there for ordinary people not ‘learned in the law’?
Joshua, this is a very important point. But the distinction between what the court intended vs how it’s been widely interpreted is very difficult for ordinary people to understand. Can you find a way to communicate it more clearly? Maybe use examples (possible from history) or other techniques to illustrate the difference.