The  former President of the International Court of Justice (“ICJ”), has confirmed that the ICJ did not find there was a plausible case of genocide against Israel.

Judge Joan Donoghue was President of the ICJ when it made its original Provisional Measures Order (“the Order”) in the case brought by South Africa against Israel. She explained the meaning of the Order when interviewed by Stephen Sackur on BBC’s Hardtalk programme, broadcast on 25 April 2024.

Her explanation vindicates statements made by UK Lawyers for Israel (UKLFI) and Natasha Hausdorff, UKLFI Charitable Trust’s Legal Director, and contradicts media reports and letters that have misinterpreted the Order.  During the interview she said:

“I’m glad I have a chance to address that because the Court’s test for deciding whether to impose [provisional] measures uses the idea of plausibility, but the test is the plausibility of the rights that are asserted by the applicant, in this case South Africa. So 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. It then looked at the facts as well, but it did not decide – and this is something where I’m correcting what’s often said in the media – it didn’t decide that the claim of genocide was plausible.

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

This may have come as a surprise to Mr Sackur, who had said in his introduction:

“In its initial ruling the court overwhelmingly found there was a plausible case to answer but a final judgment is likely to take years”.

An open letter of 3 April 2024, signed by Lord Sumption and three other retired former members of UK’s Supreme Court, as well as about 1100 other British lawyers (“the First Letter”), purported to advise the UK Prime Minister, Rishi Sunak MP, that Britain has a legal obligation to impose sanctions on Israel, including stopping arms exports to Israel.

This “advice” was primarily based on an assertion that the ICJ had concluded in the Order that “there was a plausible risk of genocide in Gaza”.

The well-known legal journalist, Joshua Rozenberg KC, immediately put up a post on 4 April, entitled “Lawyers’ letter based on error”, pointing out that the ICJ’s Order had not said this. His post explained that the ICJ’s power to indicate provisional measures depends on a finding that the rights asserted by the applicant are at least plausible, not the infringement.

UKLFI prepared an open letter of 5 April to Rishi Sunak MP, which has now been signed by some 1370 British lawyers, including two former members of the UK Supreme Court, other former senior judges, and many other distinguished members of the profession (“the Second Letter”).

This letter reiterated that the ICJ’s Order had found that the Palestinians and South Africa have plausible rights under the Genocide Convention, but had not found that there was a plausible risk of genocide. It also drew attention briefly to two other serious failings in the First Letter.

The authors and leading signatories of the First Letter produced a response to UKLFI’s letter, which claimed to identify flaws in UKLFI’s interpretation of the ICJ’s Order. This was published by the Law Society Gazette on 9 April (“the Third Letter”).

UKLFI provided a more detailed reply which was published by the Law Society Gazette on 12 April (“the Fourth Letter”). This summarised the development of the ICJ’s case-law on its power to indicate provisional measures and showed that the interpretation in the First and Third Letters did not accord with the language of the Order or the case-law.

On 24 April the House of Commons Select Committee on Business and Trade held a hearing on the licensing of arms exports to Israel. The Committee invited Lord Sumption and Lord Ricketts to give oral evidence. Both had stated that the UK government should stop the sale of arms to Israel, so the Committee also invited Natasha Hausdorff and Col Richard Kemp CBE to give evidence.

Lord Sumption described UKLFI’s interpretation of the ICJ’s Order as “barely arguable”. Ms Hausdorff responded, carefully explaining the development of the ICJ’s case law and what the Order actually said. Video HERE. Transcript HERE.

Judge Donoghue has now confirmed that the correct interpretation of the Order is as stated by Joshua Rozenberg KC, UKLFI and Natasha Hausdorff.

The advice of Chief Justice Hengham in Aumeye’s case (1305) YB 33-35 Edw 1 p82 seems pertinent: “Do not gloss the statute; for we know better than you; we made it”.

UKLFI’s Chief Executive, Jonathan Turner, commented:

“We are very proud of our colleague, Natasha Hausdorff, who has tenaciously maintained her accurate analysis in the face of opposition that might have intimidated a lesser advocate.

Lord Sumption and other leading lawyers were most unwise to endorse the First and Third Letters. They have seriously damaged their personal reputations and undermined confidence in the British judiciary and legal system. They should now apologise and withdraw their endorsements of those Letters.”