On the Refusal to Call a Spade a Spade

[Nimer Sultany is a Reader in Public Law at SOAS University of London and the Editor-in-Chief of the Palestine Yearbook of International Law.]

In a recent lecture at the Imperial War Museums, the prominent lawyer and author Philippe Sands makes several problematic and surprising claims concerning South Africa v. Israel, the genocide case before the International Court of Justice (ICJ). Sands, who represents Palestine in the ICJ case on the legality of the occupation, claims in this lecture that he no longer thinks that genocide is a useful concept anymore. What is problematic about Sands’ claims is their inaccuracy as well as their misleading effect on reporting on the case. They are surprising because they would undermine his own advocacy on behalf of The Gambia in the case pending before the ICJ against Myanmar.  

Judge Nolte: January but not March?  

Sands starts the lecture by noting the “gap between what regular folks think of as genocidal acts” and legal or judicial standards. He adds that “into that gap a lot of mischief is made.” In order to question the characterisation of Israel’s policy in Gaza as “somehow genocide,” Sands—who achieved provisional measures for his client against Myanmar—says the “plausibility” test in the provisional measures stage “says very little.” He points to Judge Nolte’s opinion in January, implying that reporting on January ICJ order was mistaken because it uses the “political sense” of genocide rather than the legal sense. The immediate reaction by the moderator of the event, journalist Lindsey Hilsum, was that she is now “really really worried that I reported it wrongly,” referring to South Africa v. Israel, “because… I did not concentrate on what the German judge said.”

There are several problems, however, with this focus on Judge Nolte’s January opinion. The first is that Sands ignores that Judge Nolte is only 1 out of 15 who voted for all the provisional measures in January, and none of the other judges joined him. Thus, while important, directing the audience to go to the website of the ICJ and read that opinion only will inevitably lead to a partial legal assessment.

Indeed, the court’s jurisprudence is not as clear as Sands suggests by this sole reference to Nolte, and there are diverging judicial opinions, some of which are inconsistent with Sands’ claims in the lecture. Consider, for instance, the “Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017.” There the ICJ maintained (para. 75) that a finding of “plausibility of rights” indicates the existence of “evidence” that shows a “sufficient basis” that elements of the alleged crime “are present.”

A more recent example is the separate opinion of Judge Tladi in the ICJ case of Nicaragua v. Germany. Noting the Court’s “inconsistency” on “plausibility,” Judge Tladi maintains that:

there has to be some prospect of success on the merits. In the jurisprudence of the Court, this element would be covered by the conditions of jurisdiction and plausibility of rights (and this includes whether there is a plausibility that the rights are being or have been infringed). It is only if there is some prospect of success on the merits, i.e. the Court has prima facie jurisdiction and there is a case to be answered at the merits stage, that the second element of a real and imminent risk of irreparable harm comes into play.

A second problem in Sands’ focus on Nolte’s January opinion is that it ignores Judge Notle’s change of position as apparent from his March opinion, a month before Sands’ lecture. In March, Judge Nolte moved beyond his January scepticism regarding genocidal intent and noted that the circumstances “constitute a qualitative change of the situation which is exceptional” and “also reflect a plausible risk of a violation of relevant rights under the Genocide Convention.” This change in Judge Nolte’s position, as Alonso Gurmendi highlights, indicates that South Africa’s case against Israel became stronger despite the high threshold required to prove the commission of a genocide. Surprisingly, Sands makes no mention of the March order, nor of Judge Notle’s opinion, which is as “easy to find” as Sands suggested to the audience with respect to the January opinion.

“Only Reasonable Inference”?

A third problem in Sands’ lecture is the discussion of the required standard to establish the special intent to commit genocide. Sands points correctly that the “only reasonable inference” is a high and difficult judicial standard to meet. He mentions that he in the past advocated before the Court to lower that standard. Now he is no longer making that argument. Sands also mentions that Ireland is also advocating a change. Indeed, Ireland announced recently that it “will intervene in the case taken by South Africa and argue that restricting food and other essentials in Gaza may constitute genocidal intent.” The foreign minister explained that his government “will be inviting the court to consider the issue of broadening how you determine whether genocide has taken place or not on the basis of an entire population being collectively punished.”

Surprisingly, however, Sands neglects the major submission by 6 western states in the Myanmar case in which Sands is acting for The Gambia. In the “Joint Declaration of Intervention of Canada, Denmark, France, Germany, the Netherlands and the United Kingdom”, these six states argued for lowering the judicial threshold (para. 51-52):   

the Court’s approach has prompted mixed reactions among commentators, some of whom take the view that the standard of “the only inference that could reasonably be drawn” sets the bar unduly high. The Declarants submit that, precisely because direct evidence of genocidal intent will often be rare, it is crucial for the Court to adopt a balanced approach that recognizes the special gravity of the crime of genocide, without rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible… when determining whether or not specific intent can be inferred from conduct, a court or tribunal must weigh the evidence before it, and filter out inferences that are not reasonable. Put differently, the “only reasonable inference” test applies only between alternative explanations that have been found to be reasonably supported by the evidence.

This line of argument will presumably be helpful to The Gambia and South Africa in making their cases against Myanmar and Israel respectively. It would be surprising if Sands would welcome it in the Myanmar case but reject it when applied to Israel. In this context, Sands argues (37”) that “if you can show your actions are motivated by your desire to act in self-defence to stop rockets coming in or to save hostages… the genocidal intent that has to be established, cannot be established on some views.” He thus claims that this results in using “genocide” in “a political sense” not a legal sense.  

But this line of argument is also applicable to the case against Myanmar. Sands arguments would seem to undermine his own case for The Gambia. Here is what the ICJ reported regarding Myanmar’s claims (para. 68):

Myanmar also argues that it is engaged in a range of initiatives aimed at bringing stability to Rakhine State, protecting those who are there or who will return there, and holding accountable those responsible for past violence — actions which are inconsistent with it allegedly harbouring genocidal intent. Finally, Myanmar stresses the challenges it is facing, inter alia, in ending an ongoing “internal armed conflict” with the Arakan Army in Rakhine State. It submits that the indication of provisional measures by the Court might reignite the 2016-2017 “internal armed conflict” with the Arakan Rohingya Salvation Army, and undermine its current efforts towards reconciliation.

Despite this, the Court ruled in favour of Sands’ client (paras. 73-74):

In the view of the Court, however, these steps do not appear sufficient in themselves to remove the possibility that acts causing irreparable prejudice to the rights invoked by The Gambia for the protection of the Rohingya in Myanmar could occur. In particular, the Court notes that Myanmar has not presented to the Court concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group under the Genocide Convention…

Finally, the Court observes that, irrespective of the situation that the Myanmar Government is facing in Rakhine State, including the fact that there may be an ongoing internal conflict between armed groups and the Myanmar military and that security measures are in place, Myanmar remains under the obligations incumbent upon it as a State party to the Genocide Convention.

In this context, one can recall that on 17 October 2023, Sands signed a letter to the Financial Times in which eight jurists proclaimed that “Israel has a clear right in international law to respond in self-defence,” ignoring that the Hamas attack originated from an occupied territory. Indeed, as Sands himself made clear in the case of the legality of the Israeli occupation, Israel has deprived the Palestinians of the right to self-determination for decades, including in Gaza. The ICJ had already stipulated in its 2004 Advisory Opinion on the Wall that Article 51 of the UN Charter and self-defence are irrelevant in relation to threats emanating from territories that Israel effectively controls.

Legal Categories Inflaming the Passions

A fourth problem in Sands’ lecture is that he claims that the use of genocide “inflames the passions,” gives “rise to ill feeling,” and “reinforces group hatred,” and thus asks whether it is useful. The problem with that claim is that in the case of Israel, its passions have been easily inflamed with respect to any law-based characterisation of Israel’s conduct, including apartheid, crimes against humanity, or war crimes. One need only remember the Israeli reaction to the ICC’s decision to open an investigation or to Amnesty and HRW apartheid reports. In these cases, which did not involve the charge of genocide, Israel invoked the charge of antisemitism. Recently, Prime Minister Netanyahu argued, in reaction to the possibility of issuing ICC warrants, that “[b]randing Israel’s leaders and soldiers as war criminals will pour jet fuel on the fires of antisemitism.”  Thus, while “inflaming the passions” is a reasonable argument, it alone cannot be a reason to jettison legal categories.

Moreover, in the current discussion over whether Israel’s conduct meets the threshold of genocide, the overwhelming evidence has led an increasing number of different actors, including legal experts, to make the charge or warn of the risk of genocide. See for example, the UN Rapporteurs (here and here), the Lemkin Institute for Genocide Prevention, Amnesty International, Colombia, Nicaragua, and hundreds of UK lawyers. Those are not “regular folks,” to quote Sands. And Sands makes no effort in this lecture to challenge the findings of these experts and actors or assess the factual basis that makes them level the charge against Israel.     

“Far-reaching” Provisional Measures

A final surprising claim that Sands makes in his lecture is that The Gambia, which he represents, got more “far reaching” provisional measures against Myanmar than South Africa got against Israel (min 1:03:30). It is difficult to know what to make of this claim. The implication is that the case against Myanmar is somehow stronger than against Israel. But is the factual claim accurate?

Let us compare the texts of the order on provisional measures – the January 2020 in relation to Myanmar and the January 2024 in relation to Israel. Start with these two passages:

The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular…

The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular…

And then in both cases the ICJ enumerates the same, which is the following:  

(a) killing members of the group; (b) causing serious bodily or mental harm to the 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; and (d) imposing measures intended to prevent births within the group.

 And also compare the following:

The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;

 2. The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above; 3. The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip; 4. The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.

Now compare these two passages:

The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide.

The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip.

 And the final comparison:

The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.

The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order.

How and why would this comparison lead to Sands’ conclusion that The Gambia received more “far-reaching” provisional measures (against Myanmar) than South Africa (against Israel) is unclear.

Conclusion

The arguments made by Sands in this lecture are therefore not convincing. Experts and reporters should take the charge of genocide seriously, and they should be courageous to recognize the facts and call a spade a spade. As Judge Yusuf argued in his opinion in March: “The alarm has now been sounded by the Court. All the indicators of genocidal activities are flashing red in Gaza. An injunction has been served for ending the atrocities.”