A Lawyer’s Review – the International Court of Injustice

As a practicing litigation attorney for nearly 45 years, I know that no lawyer wins every case. Sometimes the facts or the law are against the lawyer’s side of the case. Sometimes the judges and juries just get it wrong – that is why there are appellate courts. But sometimes, judges and juries ignore the factual record and the applicable law in a way that amounts to injustice.

While we’d all prefer to win every time, we know that will not happen. All one can realistically ask is that the judge will truly listen to the evidence from both sides and take it into account, read the case law cited by both sides, and if disagreeing with one side’s position, explain its reasoning in a way that establishes that it honestly considered the evidence and arguments of the losing side and why it disagreed with that side’s arguments. If that occurs, even if one loses, both lawyer and client can feel that the justice system did its job.

Unfortunately, the January 26, 2024 ruling by the International Court of Justice in “Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)” utterly fails to meet this standard. Even under the “plausibility” standard – akin to the “assume as true the well-pleaded facts” standard used for Motions to Dismiss in United States courts – the ICJ majority’s opinion is so entirely void of basic fairness. Relying on incredibly scant facts and disregarding the ICJ’s own precedent, there is no legitimate basis for the as-issued ruling, even as it provided less than the cease-fire relief that South Africa requested.

After mentioning in cursory fashion the October 7, 2023 Hamas attack – without any mention of the extreme brutality of that attack, the torture, killing of entire families, rape and torture committed by Hamas – the attack is Paragraph 13, the Hamas attack is never mentioned again in the entire 27-page opinion until the final paragraph (Paragraph 85) when the Court deigns to mention that it is “gravely concerned about the fate of the hostages . . . and calls for their immediate and unconditional release.”

Nowhere does the majority opinion mention Hamas’s use of Gazans as human shields, the true reason for the numbers of Gazan casualties. Nowhere does the majority opinion mention Hamas’s use of civilian infrastructure for military purposes (which renders them legitimate targets for military action under International Humanitarian Law) (“IHL”), nor does the word “tunnel” appear in the entire opinion. Nowhere does the majority opinion mention that, under IHL, the primary responsibility for Gazan civilians is on Hamas, not Israel. Nowhere does the majority opinion mention Hamas’s false allegation that Israel bombed a hospital whereas it was actually a failed Hamas rocket that hit the parking lot. Nowhere does the majority opinion mention Hamas’s keeping food and other items for itself, stealing humanitarian aid, attacking ordinary Gazans who seek to obtain that aid, and actively preventing civilians from leaving combat zones when warned to do so by Israel – again, these are the real causes for the civilian casualties and hazardous conditions decried by the Court. All of these were expressly brought to the Court’s attention, but that the Court does not even mention them is itself reason to question the validity of its ruling.

What, then, did the Court use for its factual basis? The majority opinion establishes a record so sparse that no reasonable person could possibly rely on it. The entirety of the evidence relied upon by this United Nations institution came solely from United Nations entities – and even then not one of those sources tied the conditions in Gaza to Israeli intent to commit genocide. The entire “factual” record cited in the majority opinion consists of the following:

• • Paragraph 46 cites Hamas-provided casualty figures (without acknowledging that they came from Hamas, as noted in Paragraph 36 of Judge Barak’s separate opinion).
  • Paragraph 47 cites the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, for the conditions in Gaza, but does not mention any actions of Israel that cause them nor of any genocidal intent.
  • Paragraph 48 cites the World Health Organization, another U.N. entity, for the health hazards in Gaza but again without any statement about actions of Israel causing them nor about genocidal intent.
  • Paragraphs 49-50 cite the Commissioner-General of UNRWA, again solely on conditions in Gaza and without any reference to Israel’s actions or genocidal intent.
  • Paragraph 53 cites a press release of 16 November 2023, issued by 37 Special Rapporteurs, Independent Experts and members of Working Groups part of the Special Procedures of the United Nations Human Rights Council, a notoriously anti-Israel group.

That is it – all of the “evidence” cited by this U.N. court comes solely from U.N. entities already known for their anti-Israel stances, and even then not one shred of evidence presented by South Africa or cited by the majority opinion tied any of the dire conditions for Gazan civilians to supposed genocidal intent.

The only supposed evidence of the intent element cited by the majority consists of one paragraph of the ruling (Paragraph 52), which in turn consists of three deliberately out-of-context statements of members of the Israeli government within one week of the October 7 pogrom, only one of whom actually had any responsibility for the war (Defense Minster Gallant who, even in the majority-quoted portion of the statement made explicit reference to Hamas, not Gazan civilians). As noted by Judge Sebutinde’s dissent (Paragraph 22): “a careful examination of those statements, read in their proper and full context, shows that South Africa has either placed the quotations out of context or simply misunderstood the statements of those officials. The vast majority of the statements referred to the destruction of Hamas and not the Palestinian people as such. Certain renegade statements by officials who are not charged with prosecuting Israel’s military operations were subsequently highly criticized by the Israeli Government itself. More importantly, the official war policy of the Israeli Government, as presented to the Court, contains no indicators of a genocidal intent.” This was similarly noted in Judge Barak’s separate opinion at Paragraph 36.

And, again, that is it: evidence of the dire humanitarian situation in Gaza without any attempted causal connection to Israel and without mention of Hamas’s role in creating that situation, and out-of-context deliberately cherry-picked statements of Israeli officials, with zero evidence whatever that any particular Israeli actions were taken with any such intent, and without acknowledging the extraordinary measures taken by Israel to protect civilians, beyond what any army has done in the history of the world, led the Court to state 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.”

To call this evidence “scant” is to be overly generous. If that is sufficient, even under a liberal plausibility standard, to pass muster, one would be hard pressed to find allegations of genocide that do not.

But that is not all, because the majority also ignored and acted contrary to its own precedent. As pointed out in the separate and dissenting opinions of Judge’s Barak and Sebutinde, prior ICJ opinions demanded that the relief be denied. In cases involving claimed genocide, including in provisional measures cases such as the one at issue, the ICJ requires evidence of specific intent with a very substantial factual record (see, Barak separate opinion at Paragraphs 29-35). No such finding of specific intent – or even plausibility of it – was found here nor was the evidence as extensive and detailed as in the Gambia case (Barak at Paragraphs 34-35; Sebutinde at Paragraph 30, noting that the Court had also rejected provisional measures in Canada v. Syria).

To summarize, then: the majority relied on cherry-picked evidence from its own co-U.N. agencies, on unverified figures from Hamas, and on out-of-context statements from a few Israeli government figures, some of whom were not in the war cabinet, and then disregarded and acted contrary to its own precedent. Its ruling is the exact opposite of what any reasonable non-idealogue should expect for an institution that purports to be supporting the rule of law.

Which brings us to the even more recent ICJ proceeding in the news. In the past week, oral hearings have been held on a proceeding referred by the U.N. General Assembly to the ICJ: “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.” Just the name of the proceeding confirms that it is a kangaroo proceeding, whether or not the ICJ itself can be considered a kangaroo court. Calling the subject “Occupied Palestinian Territory” pre-judges the question – since the “Territory” is neither “Occupied” nor “Palestinian,” as so ably pointed out by Professors Bell and Kontorovich in their  2016 Arizona Law Review article, “Palestine, Uti Possidetis Juris, and the Borders of Israel.” Remarkably, none of those who submitted statements (both government and NGO) referenced this issue. Even the statement of the United States, opposing the action, referred to Israel as the “Occupying Power” (at Paragraph 4.6) even as it decried the “conclusory and one-sided framing” of the questions presented to the ICJ (at Paragraph 3.13; see also fn 68, noting that “the referral questions are drafted to establish the very conclusions about which they inquire,” and citing prior ICJ jurisprudence rejecting this technique).

Thus, in the “Legal Consequences” matter, the ICJ is called upon to write an opinion in a prejudged case, referred to it with questions that predetermine that Israel is committing an “ongoing violation,” and without any briefing or argument to call that very prejudgment – erroneous under international law that undisputably provides that Israel is sovereign over the entire West Bank and all of Jerusalem – into question.

The ICJ, then, is misnamed. It acts and considers cases with intellectual dishonesty. It is not a court of “justice,” but rather a political arm that ignores facts and law, accepts predetermined cases for advisory opinions, and should be renamed to reflect what it really is: the ICI – the International Court of Injustice.