Media misrepresenting ICJ ruling, says retired judge

Judge Joan Donoghue, who has just retired as president of the International Court of Justice (ICJ), has made it clear that the ICJ didn’t find that South Africa’s claim that Israel was committing genocide was plausible, as so many in the mainstream media have falsely claimed.

Local and international media have generally presented these false claims about the outcome of the South African case against Israel in the ICJ as fact.

Israel was widely accused of genocide, and it was portrayed that South Africa had won the case, that it had brought a ceasefire, and lawsuits charged other countries with abetting Israeli “genocide” or failing to stop the Jewish state from committing genocide.

“The court decided that the Palestinians had a plausible right to be protected from genocide, and that South Africa had the right to present that claim in the court,” Donoghue told BBC HARDtalk’s Stephen Sackur on 26 April. “It then looked at the facts as well. But it didn’t decide – and this is something where I’m correcting what’s often said in the media – that the claim of genocide was plausible.

“It did emphasise in the order that there was a risk of irreparable harm to the Palestinian right to be protected from genocide,” she said. “But the shorthand that often appears, which is that there’s a plausible case of genocide, isn’t what the court decided.”

Donoghue also said, “We didn’t find [a ceasefire] necessary.”

“Because the court has jurisdiction only over cases between states, and Hamas isn’t a state, the court isn’t in a position to order Hamas at all,” she said. “The only thing we could do, and we did do at the very end of our reasoning, is to state specifically that we condemned what Hamas had done, and to call for the immediate and unconditional release of the hostages. We felt that was very important. There was no question on our part that we needed to do that.”

Said Advocate Mark Oppenheimer, “The two major pieces of misinformation that were spread by the media about the ICJ case were first, that South Africa had obtained what was tantamount to a ceasefire, and second, that a plausible case of genocide had been found against the state of Israel.

“In her interview on HARDtalk, Judge Donoghue makes it clear that neither of these occurred. First, she makes it abundantly clear that the court declined to grant a ceasefire,” said Oppenheimer. “Second, she said that it was never found that there was a plausible case of genocide, only that it was plausible that the rights invoked by South Africa in the convention plausibly applied to the case at hand. No finding was made about whether there is a genocide or not, but only to state that these are the applicable rights, and South Africa had the right to bring the case. There was some ambiguity about South Africa’s right to bring the case, given that it isn’t a party to the conflict.

“One reason why the press ran with the story was to amplify South Africa’s case in spite of it being a failure,” he said. “South Africa failed on three occasions. It went to court three times to seek a ceasefire, and every time was told no, and the third time was told definitively it would never be granted because South Africa isn’t a party to the conflict. That’s why we haven’t had a fourth barrage of litigation from South Africa.”

Rowan Polovin, the chairperson of the South African Zionist Federation (SAZF), said, “The recent BBC HARDtalk interview with Judge Joan Donoghue provides much-needed clarity on the court’s provisional measures order in the case brought by South Africa against Israel. Her authoritative explanation makes it clear that contrary to claims by the South African government, media, and some partisan “experts”, the ICJ didn’t find the allegation of genocide against Israel to be a plausible claim.

“Judge Donoghue unambiguously stated that the court’s test of plausibility applied only to South Africa’s right to present its claim, not the substance of the genocide allegation itself,” said Polovin. “The court determined that the Palestinians have a plausible right to be protected from genocide, allowing the case to proceed on that basis. However, Donoghue firmly corrected the widespread mischaracterisation, stating that it didn’t decide that the claim of genocide was plausible.

“This is a stern rebuke to the South African government’s reckless rhetoric falsely equating Israel’s defensive actions against Palestinian terrorism with genocide,” he said. “It’s deeply concerning that such inflammatory and legally baseless allegations have been irresponsibly perpetuated by Minister Naledi Pandor and government officials, as well as amplified in media reports, and lent legitimacy by partisan commentators.

“Judge Donoghue’s sober assessment provides much-needed context that the court’s provisional order centred on preventing potential irreparable harm while the merits were examined. It didn’t prejudge the substance of South Africa’s genocide claim one way or the other,” said Polovin. “All parties ought to heed her clarifying remarks and cease the deliberate mischaracterisation of Israel’s acts of self-defence against the internationally designated Hamas terrorist organisation.”

The SAZF has called on the South African government “to walk back its incendiary accusations against Israel, which do nothing to resolve the situation constructively. Unfounded allegations of genocide only inflame tensions further and disrespect the millions of victims of actual genocides in Africa and around the world”.

David Saks, the associate director of the South African Jewish Board of Deputies, said, “In view of the dishonesty of the ANC [African National Congress] government in bringing this scandalous case to the ICJ in the first place, it’s hardly surprising that it has gone on flagrantly to misrepresent the court’s findings.

“To foster the impression that Israel is guilty as charged, it has cynically twisted what was in actuality a carefully nuanced ruling that didn’t – and at this preliminary stage, in fact, couldn’t – make any findings as to the substance of the case. It’s shameful indeed that in so doing, our government has placed itself at the very forefront of those seeking to hijack the international justice system in order to defame and delegitimise the Jewish state.”

The SA Jewish Report called on a number of media houses and personalities to comment, but not one of them were willing to give their opinion.