This week, a long list of lawyers including barristers, solicitors and even some former Supreme Court judges signed an open letter to the Government, calling on it to act against Israel in response to accusations of possible or potential genocide. The signatories argued that measures should include the suspension of arms sales to Israel and indeed a substantial alteration of the UK’s relationship with Israel. They argued that failure to do so might make the UK complicit with genocide.[1]
Now, it is probably necessary to make a few things clear from the top. First, the UK should not be involved any way in supporting or enabling genocide. If Israel is complicit in this then not only should arms sales be suspended but far more serious measures should be taken by the International Community as a whole.
Secondly, whilst I have frequently spoken up for Israel’s right to self-defence, against Hamas and about the dangers of antisemitism including its conflation with anti-zionism, however, I’m not an “Israel right or wrong” advocate. I’ve expressed concerns about Israel’s strategy and tactics in response to the October 7th atrocity. And therefore I also believe, as I will explain in an upcoming article marking the 6th month anniversary of that atrocity, I believe that Israel bears a significant level of responsibility for the situation now. This includes responsibility for the suffering experienced by Palestinians and it includes responsibility for where Israelis themselves have committed horrific wrongs.
However, it is also important to be clear about what is and what isn’t happening. This is important for a number of ethical reasons but in this particular case it is important because getting things wrong, as I believe the lawyers who signed the letter have done has wider legal and constitutional implications here. Let me explain why.
First, of all, we recognise the value of an independent judiciary. This means that when we see politicians put pressure on the judiciary or seek to interfere with the system, then we are rightly concerned. This however should work both ways. The Judiciary (and in effect retired judges still belong to that class of people) need to be very cautious about how and when they intervene in political matters.
Secondly, because there is, far too often a tendency to play the “expert-authority” card. Now, let’s be clear, the authority of an expert is only so good as they use their expertise and that it is relevant expertise to the specific issue in hand. We see this for example whenever someone is caught writing nonsense about theology in books and on blogs. Too often, the retort si “How dare you criticise such and such a person, they have a PHD.” The risk with such a letter is that because it is from judges and barristers that they must be listened to without challenge. Yet, judges can be wrong. Judges are fallible. We must still do due diligence on their claims.
Furthermore, expertise is specialised. A retired cardiologist might be able to give you some informal advice on your chest pains but they would be very reluctant to do so without examining you and they would urge you to go and see a practising doctor. However, they would be even more reluctant to advise you on a neurological issue. Just because they are a doctor, does not mean that they are an expert in all fields. The same is true of lawyers, they specialise and just as you wouldn’t go to a human rights lawyer to do your conveyancing, so too, just because a judge has expertise in one field does not make them an expert in International Law.
In the case of International Law, this is particularly pertinent. I read law at University back in 1992. By the time I entered my third year, I had decided against a legal career and that freed me up to focus on areas of law I thought would be interesting but not considered critical to a legal career. So, whilst my friends were knee deep in commercial law (one of the few areas of law that actually makes money despite the public perception of lawyers), I was stud443erfszc ying things like English Legal History and International Law. The latter was not considered a serious legal discipline to the point that my professor pulled me to one side on Graduation day and said that if it were any other module I would have been awarded a prize but there was none for International Law. Now, what this means is that there is a high likelihood that anyone who graduated prior to the late 90s probably had little if any training in this sub-discipline.
However, their legal training and experience should enable them at least to engage properly with evidence, documentation and rulings. This is where I have a further concern. When you read the argument made in the letter, it isn’t supported by the relevant materials and that is deeply concerning because it raises questions about whether or not those concerned have taken time to read them. This, by the way is why I’m always cautious about these round robin letter because they often encourage people to add their names because something sounds good, without encouraging them to check the detail.
In this case, the two pertinent materials are
- The Convention on the Prevention and Punishment of Genocide
- The ICJ’s interim ruling on South Africa v Israel
The Genocide Convention
Article II of the Convention states that Genocide happens when specific acts are committed
“with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”[2]
Article II goes on to identify a list of acts that might lead to genocide as follows:
“(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
It is important to note that warfare by definition potentially includes several of the listed actions. It is therefore crucial to recognise that for genocide to take place, there must be both one or more of these actions and the specific intent to destroy a specific group.
So, on that basis can we say that Israel are engaged in genocide? We certainly might note that Palestinians have been killed and that Israeli actions have caused “serious bodily” and “mental harm” to Palestinians. However, can we determine that there is intent to destroy? Well, that might be difficult to judge. After all, the Israelis are not necessarily going to state this as official policy.
It is true that some Israeli politicians have made extreme and repugnant statements but that does not mean that there is an intent by the State as a whole. We would have to look at Israel’s actions and their consequences in the circumstances. What we know is that around about 28000 people have lost their lives over a six month period. Compared to historical examples of genocide, this is actually quite a small number. There is however the possibility that the destruction of infrastructure and loss of essential supplies could lead to a rapid exponential increase in the death toll.
However, the actions and their consequences need to be considered in context. So, the loss of civilian lives in a conventional war where the military are clearly segregated and stationed away from major population centres may be avoidable. However, what happens when the enemy choose to embed into towns and cities? This was of course the great fear of many during previous conflicts such as the Afghan and Iraq Wars. In those cases, a raid collapse of opposition averted what would have potentially been a huge humanitarian crisis.
Now, because courts are fallible and because there is an objective definition, it is possible for us to agree or disagree with the ruling. However, because the UK is a signatory to the Convention, it has agreed that it is the ICJ who are competent to make a ruling and so should abide by the decision. This is why it is important to look at the text of the ICJ’s interim ruling, noting that this isn’t a final judgement, in order to assess on whether or not they have ruled that genocide is taking place.
So where are we at with regards to Court proceedings
The ICJ on South Africa v Israel
It is crucial to consider two questions when looking at a case like this. The first question is “What question was the court specifically seeking to answer?” The second is “What exactly do they say? How do they answer that question?”
In December 2024, South Africa began proceedings against Israel, arguing that Israel was in breach of its responsibilities under the genocide convention.
On 29 December 2023, the Republic of South Africa (hereinafter “South Africa”) filed in the Registry of the Court an Application instituting proceedings against the State of Israel (hereinafter “Israel”) concerning alleged violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Genocide Convention” or the “Convention”)[3]
In terms of how exactly Israel has breached those obligations, I’m not sure that the South African request as reported in the ruling is exactly clear. However, I note that South Africa’s argument appears to be that Israel has responsibilities under the Convention both to prevent and punish Genocide.[4] South Africa then asks the court to instruct Israel to in effect cease her military operations in Gaza to avoid a situation where Palestinians are killed, caused physical and mental suffering or are affected by conditions likely to lead to their destruction. The request is that:
“The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide”[5]
This is important because it does suggest that the case is not so much that the State of Israel is seeking genocide against the Palestinians. This may either be because South Africa does not believe that to be the case, or because they recognise that this would be very difficult to prove. Rather, it seems that South Africa’s argument is more that there may be people within Israel, including politicians and members of the IDF who are seeking the destruction of the Palestinian people in Gazs. It may be easier to prove this case, if it can be shown that those who have expressed genocidal sentiments (and yes there are Israelis who have) are sufficiently linked to those operational activities that have resulted in loss of life and physical harm.
It would then make sense for South Africa to argue that Israel has two responsibilities. First, to take steps to investigation those accused of genocide and also to as far as possible remove the conditions which make genocide possible. Arguably, that would involve the suspension of operations as it stands. The case then is that Israel as a State is accused of complicity with genocide by failing to deal with persons and groups directly attempting and committing genocide. Israel’s response was to deny the charges and request that the Court dismissed the case and the measures requested by South Africa.
Now, this ruling is not an attempt to decide on South Africa’s argument. In effect, we are at the stage of determining whether or not the Court has jurisdiction in this matter, including whether South Africa has standing to bring the case. This might best be understood as the ICJ equivalent of determining if there is locus standi in a domestic Judicial Review case. So, the ruling states:
At the present stage of the proceedings, the Court is not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have occurred. Such a finding could be made by the Court only at the stage of the examination of the merits of the present case. As already noted (see paragraph 20 above), at the stage of making an order on a request for the indication of provisional measures, the Court’s task is to establish whether the acts and omissions complained of by the applicant appear to be capable of falling within the provisions of the Genocide Convention (cf. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 222, para. 43). In the Court’s view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.”[6]
Note that the ICJ are here asserting their jurisdiction. In that sense, we might suggest that this is non-controversial. No-one is disputing that Palestinians have been killed, suffered physical harm, suffered mental harm. I think, we must also recognise the high risk that there has been a significant impact on infrastructure and on humanitarian supplies that puts the population as a whole at risk. This means that some actions are indeed “capable of falling within the provisions of the Convention.”
Indeed, at paragraph 74, the ICJ note that:
“In light of the considerations set out above, the Court considers that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.” [7]
The rights referred to are stated in paragraph 54.
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, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention. [8]
This is crucial, because I understand that this is the clause that has been read as indicating that there is a risk of genocide. Yet, that is not what the court is saying and understandably so. Attempting to assess risk of a possible future event requires assessment of probability and impact and that isn’t something that courts tend to do, particularly at this stage.
It is stating that the court’s jurisdiction concerns protection of rights and that it is plausible that those rights exist in relation to the Palestinian people. I hope we would all agree on that. Indeed, the word “plausible” seems rather weak in that context.
What it is doing, is restating that the nature of the case means that they have jurisdiction here and that there is a genuine case to answer. It is not being dismissed as vexatious. This is important because I think that some defenders of Israel would argue that this is just about South Africa playing politics on the international stage. Well, whatever you or I may think of that claim, the ICJ disagree.
So, in summary, the court had to answer the question “Do we have jurisdiction and is there a case to answer?” Their conclusion to that is “Yes.”
Secondly, the court considered whether or not the measures requested by South Africa should be ordered. It is crucial to note that whilst the court do instruct Israel to do all in her power to ensure that the Convention is complied with, it does not go with the measures recommended by South Africa. It doesn’t demand the end to military operations. In effect, the instructions are to facilitate investigation and to control her politicians and military.
Now, you may not like this ruling. Some readers will be frustrated, they will believe that Israel has no case to answer and consider South Africa’s case to be vexatious but that is not what the Court is saying. The court is insisting that Israel has responsibilities and that she may have failed in some of them. And some readers will be frustrated because they believe that Israel is in the process of an act of genocide but nor is that what the court has said and it does not come close to saying that. We may not like the ruling but it is the ruling of the court.
Implications
I think there are a number of implications here. First, there are some indirect broader lessons, whether it is about thinking through how arguments, especially legal arguments work. It would be helpful for Christians seeking to engage on ethical issues to understand this because I think that a number of domestical ethical legal cases have been misunderstood by activists. Remember those key questions “What is the question being answered?” “How is it answered?”
Secondly, I must repeat again that there is wisdom in refraining from getting involved in signing round robin letters. I think this is particularly so, when it draws us away from our immediate responsibilities and where it can lead to unhelpful pressure on people to comply with a view.
Thirdly, beware arguments that rely on appeal to expert authority more than they engage with the actual evidence and reasoning itself.
Fourthly, in this specific case, I think there are some direct implications. I’m concerned that on the basis of a misreading of the judgement that pressure is coming from the legal profession on the Government to take administrative action. A decision by the Government to suspend arms sales will directly affect a number of businesses and could be subject to legal challenge itself. It would be arguable that decisions made without awaiting the ICJ’s final decision and based on a misunderstanding of its interim ruling were ultra vires.[9] It is particularly noteworthy that the measures that the letter writers propose go significantly beyond what the ICJ has required.
Finally, I believe that the approach taken by the letter writers undermines healthy ethical discourse in this country. This at a time when there is too great a tendency to assume the worst of others’ motives leading to polarisation of debate.
What should the UK Government be doing?
The UK Government should be showing concern for a lasting peace in Gaza. I believe thisneeds to include:
- Pressure on Israel to comply with the ICJ interim ruling both letter and spirit.
- To remind Israel of her obligations under international and humanitarian law.
- To provide maximum levels of humanitarian relief
- To provide intelligence, expertise and other assistance available towards a sustainable solution which sees an end to Hamas’ reign of terror whilst protecting the lives of civilians (the UK has longstanding experience of engaging terrorists in urban contexts).
[1] UK Judges’ and Lawyers’ Open Letter Concerning Gaza – UK lawyers’ open letter concerning Gaza (lawyersletter.uk)
[2] Article 3, The International Convention on the prevention and punishment of Genocide. Cited at ttps://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf 05/04/2024.
[3] Order of the ICJ, South Africa v Israel (28-01-2024, para 1 Order of 26 January 2024 (icj-cij.org)
[4] Order of the ICJ, South Africa v Israel (28-01-2024, para 5 Order of 26 January 2024 (icj-cij.org)
[5] Order of the ICJ, South Africa v Israel (28-01-2024, Clause 5 (3). Order of 26 January 2024 (icj-cij.org)
[6] Order of the ICJ, South Africa v Israel (28-01-2024, para 30.. Order of 26 January 2024 (icj-cij.org)
[7] Order of the ICJ, South Africa v Israel (28-01-2024, para 74.. Order of 26 January 2024 (icj-cij.org)
[8] Order of the ICJ, South Africa v Israel (28-01-2024, para 5 54.. Order of 26 January 2024 (icj-cij.org)
[9] Much has been made of previous suspensions of arms sales licencing to Israel under the Thatcher and Blair governments however, there are I believe substantial differences between what happened then and what is proposed now.
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