Exclusive – former SC justices and Court of Appeal judges rebut UK Lawyers for Israel critique

This rebuttal was prepared by the same team of lawyers and legal academics that drafted the initial Judges' and Lawyers' letter. The rebuttal has been formally endorsed by Lady Hale, Lord Sumption, Lord Wilson, Sir Richard Aikens, Sir Anthony Hooper, Sir Alan Moses and Sir Stephen Sedley. For reasons of time, it has not been possible to contact all the signatories of the initial Judges' and Lawyers' letter for endorsement.

 

Judges’ and Lawyers’ Gaza letter: Response to UKLFI

 

 

1. On 5 April 2024, UK Lawyers for Israel (“UKLFI”) published a letter signed by (among others) a number of UKLFI patrons and directors[1] in response to the Judges’ and Lawyers’ Letter on Gaza. The UKLFI letter makes a number of criticisms of the Judges’ and Lawyers’ Letter on Gaza. For the reasons given below, those criticisms are unfounded.

 

Plausible risk of genocide

 

2. The UKLFI letter suggests that the International Court of Justice did not find, in its provisional order of 26 January 2024, that there was a plausible risk of genocide in Gaza. Instead, on UKLFI’s analysis, the Court concluded merely that the right of Palestinians in Gaza not to be subjected to violations of the Genocide Convention was plausible.

 

3. That analysis is wrong. It amounts to empty wordplay on the most serious of issues. The Court’s unambiguous conclusion (at §74) was that there was a “real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible”, i.e. the rights of Palestinians to be protected from violations of the Genocide Convention. In simple terms: a plausible risk of genocide.

 

4. There are at least six flaws in UKLFI’s analysis of the ICJ’s Order:

 

4.1 First, it renders the Court’s judgment effectively meaningless. Of course Palestinians, like all other national groups, have the right to be protected from “acts of genocide, attempted genocide, direct and public incitement to commit genocide, complicity in genocide and conspiracy to commit genocide” (§37). That right is not simply plausible; it is obvious and inviolable. Nobody could seriously suggest otherwise. It would be extraordinary if the Court required 29 pages and 86 paragraphs of legal reasoning to reach that conclusion.[2] The question with which the Court was grappling was the plausibility of South Africa’s claim that those rights had been violated, finding that there was a “real and imminent risk” that “irreparable prejudice” would be caused to Palestinians’ rights to be protected from violations of the Genocide Convention pending the Court’s determination of the merits of the case (§61).

 

4.2 Second, it is inconsistent with the Court’s actual reasoning. If the Court was concerned simply to determine whether or not Palestinians have the right to be protected from acts of genocide, it would not have engaged in an analysis of what UN Special Rapporteurs described as “discerningly genocidal and dehumanising rhetoric coming from senior Israeli government officials” (§53), including public statements by the President of Israel and the Minister of Defence to the effect that Israel was engaged in a war against “human animals” in relation to conduct for which an “entire nation” was responsible (§52). Nor would it have had to consider what the UN Secretary General had described as “devastating levels of death and destruction” in Gaza (§§67-72).

 

4.3 Third, it is inconsistent with the submissions advanced by the parties, including Israel. South Africa submitted that the evidence before the Court “shows incontrovertibly a pattern of conduct and related intention that justifies a plausible claim of genocidal acts” (§38). Israel contended in response that “neither [the statements of senior Israeli officials] nor its pattern of conduct in the Gaza Strip give rise to a ‘plausible inference’ of genocidal intent” (§40). Both parties were accordingly concerned with the plausibility (or otherwise) of allegations that Israel had committed violations of the Genocide Convention in its conduct of the war in the Gaza Strip. In adjudicating between those submissions, the Court concluded that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible”, including “the right of Palestinians in Gaza to be protected from acts of genocide” (§54).

 

4.4 Fourth, it misunderstands the nature of the Court’s exercise in determining whether or not to order provisional measures. As the Court explained (at §35), the power to indicate provisional measures under Article 41 “has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof”. The task of the Court is accordingly to assess the plausibility of the underlying claim and the risk of prejudice to the rights for which protection is sought pending the determination of the merits of the case. That is precisely what the Court did in this case: it assessed the plausibility of South Africa’s claim that Israel’s conduct of the war in the Gaza Strip involved violations of the Genocide Convention and considered whether there was a “real and imminent risk” of irreparable prejudice to the rights which South Africa invoked, namely the rights of Palestinians in Gaza to be protected from “acts of genocide, attempted genocide, direct and public incitement to commit genocide, complicity in genocide and conspiracy to commit genocide” (§37).

 

4.5 Fifth, the matter is put beyond any doubt by the Court’s order dated 28 March 2024 indicating further provisional measures. The Court observed that, since its previous order, “the catastrophic living conditions of the Palestinians in the Gaza Strip have deteriorated further, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which the Palestinians in the Gaza Stirp have been subjected” (§18). The Court reiterated its findings that the rights claimed by South Africa and for which it sought protection, “namely the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts”, were plausible and that there was a “risk of irreparable prejudice” to those rights. It concluded that the deteriorating situation on the ground, “in particular the spread of famine and starvation” (§45), required the indication of further provisional measures to protect the rights of Palestinians to be protected from acts of genocide. In particular, Israel was required to: “(a) take all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing, hygiene and sanitation requirements, as well as medical supplies and medical care to Palestinians throughout Gaza, including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary; and (b) ensure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the Genocide Convention, including by preventing, through any action, the delivery of urgently needed humanitarian assistance”. That reasoning is flatly inconsistent with the proposition that the Court was concerned with the hypothetical question of whether Palestinians in Gaza have a plausible right to be protected from acts of genocide.

 

4.6 Sixth, the UKLFI analysis is inconsistent with that of leading international law experts (in addition to the many who reviewed and then signed the Judges’ and Lawyers’ Letter). By way of illustration only:

 

4.6.1 On 23 February 2024, 34 UN experts released a statement[3] warning that any transfer of weapons or ammunition to Israel that would be used in Gaza was likely to violate international humanitarian law and must cease immediately. In support of that warning, the UN experts observed that the need for an arms embargo was “heightened by the International Court of Justice’s ruling on 26 January 2024 that there is a plausible risk of genocide in Gaza”.

 

4.6.2 In a resolution dated 5 April 2024, the UN Human Rights Council called upon all States to cease the sale, transfer and diversion of arms, munitions and other military equipment to Israel in order to prevent further violations of international humanitarian law and violations and abuses of human rights.[4] In support of that demand, the Council referred to “the order of the International Court of Justice of 26 January 2024, determining that there is a plausible risk of genocide in Gaza”.

 

Source of the UK’s international legal obligations

 

5. UKLFI misrepresents the Judges’ and Lawyers’ Letter by suggesting that it “claims wrongly that legal obligations on the UK flow from the wording of the Provisional Measures Orders”. The Judges’ and Lawyers’ Letter does not suggest that the ICJ’s order was directly binding on the UK. It said in terms “Provisional orders are binding on States Parties to the proceedings. In addition, all States Parties to the Genocide Convention have obligations under the Convention …”. The Judges’ and Lawyers’ Letter then proceeded to set out clearly the sources of the UK’s international obligations. These include the UK’s obligations as a party to the Genocide Convention and under general international law. As noted in the letter, the prohibition of genocide is recognised as a peremptory (or jus cogens) norm of international law, which permits of no derogation and is universally applicable and hierarchically superior to other rules of international law.

 

Right of self-defence of an occupying power

 

6. UKLFI criticises the Judges’ and Lawyers’ Letter for allegedly ignoring “the legal basis for the Israeli military operation, including Israel’s right to self-defence”.

 

7. It is doubtful whether Israel, as an occupying power, has a right under international law to use armed force in the Gaza Strip on grounds of self-defence. As the International Court of Justice held in its advisory opinion dated 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Article 51 of the UN Charter “recognises the existence of an inherent right of self-defence in the case of an armed attack by one State against another State” (§139). However, Israel did not (and does not now) “claim that the attacks against it are imputable to a foreign State” (id). Further, as the Court went on to observe: “Israel exercises control in the Occupied Palestinian Territory and […] the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory”, with the consequence that “Article 51 of the Charter has no relevance in this case” (id). Analogous reasoning applies in the present context, in circumstances where Israel remains the occupying power in the Gaza Strip and does not contend that it is taking military action within that territory in response to an armed attack imputable to a foreign State.

 

8. Even if Israel did have a right to self-defence in relation to the Gaza Strip under international law, that right would have to be exercised proportionately. The facts set out in the Judges’ and Lawyers’ Letter are indicative of a grossly disproportionate deployment of force in Gaza. Moreover, any right to self-defence cannot provide Israel with carte blanche to breach its obligations under the Genocide Convention. Every use of force, even in self-defence, must stay within the limits set by international law, including the prohibition of genocide.

 

Casualty figures

 

9. The UKLFI letter refers to the casualty figures cited by the Judges and Lawyers’ Letter as “fabricated by Hamas”. All of the figures relied upon in the Judges’ and Lawyers’ Letter are taken from UN briefings. UN briefings rely on the Palestinian Ministry of Health figures which are considered by the UN to be the most reliable report of casualty figures and have been assessed by Human Rights Watch as consistent with its own independent investigations.[5] The figure of 13,000 terrorists relied upon by UKLFI is based upon an assertion made by PM Benjamin Netanyahu: Israel has provided no information about how that figure was reached, the reporting upon which it relies, or the definition of ‘terrorist’ employed.[6]

 

The situation of hostages

 

10. Finally, the UKLFI criticise the Judges’ and Lawyers’ Letter for allegedly “barely mention[ing] the mostly civilian Israel hostages taken by Hamas and affiliated terrorist organisations”. Again, this criticism is misplaced. The Judges’ and Lawyers’ Letter specifically notes the International Court of Justice’s expression of grave concern about the hostages abducted during the attack in Israel on 7 October 2023. It observes that the UK Government’s obligations under international humanitarian law are “not abrogated by the serious breaches of [international humanitarian law] committed by Hamas on October 7^th or Hamas’ ongoing holding of hostages” and calls on the UK Government to continue to use all endeavours to secure the release of Israeli hostages held by Hamas in Gaza, noting that the holding of hostages and deliberate targeting of civilians are clear violations of International Humanitarian Law.

 

 

Lawyers’ Gaza Letter Initiative, April 2024

 

[1] Including Lord Dyson PC, Lady Cosgrove PC CBE KC, Baroness Deech KC, Sir Ivan Lawrence KC, Lord Pannick KC, Lord Grabiner KC, and Brian Doctor KC.

[2] This simple point is instead addressed at §45 of the Court’s order.

[3] Press Release, ‘Arms exports to Israel must stop immediately: UN Experts’, 23 February 2024, United Nations Office of the High Commissioner for Human Rights, emphasis added.

[4] A/HRC/55/L.30 which can be found at g2405189.pdf (un.org), emphasis added.

[5] The Guardian, 27.10.24, Can we trust casualty figures from the Hamas-run Gaza health ministry?

[6] Reuters, 10.03.24 Netanyahu says at least 13,000 'terrorists' among Palestinians killed