Thread by @Heidi__Matthews

Former ICJ President Donoghue engages in the ethical error of obtuseness (thx @emilykiddwhite) when she attempts hairsplitting between plausible "rights" and "claims."

TL;DR the Court decided there was, at minimum, a serious risk of genocide or related acts in Gaza. 🧵

https://twitter.com/Mr_Andrew_Fox/status/1783621258032136550

She was asked whether it was correct that the ICJ ruled there was a plausible case of genocide that should be decided by the Court.

Her answer to this question is technical and correct: The Court did not decide whether there was a plausible "claim" or "case" of genocide.

This was simply not the question before the Court at this stage of the proceedings. The Court was not asked to decide - nor was it open for it to decide - that South Africa had presented a plausible case of genocide against Israel. Instead, it was asked to order interim measures.

In order for the Court to order such measures it had to have been satisfied that there was prima facie jurisdiction in the case. (It found there was). Donoghue is pointing out that prima facie jurisdiction should not be interpreted as prejudging jurisdiction regarding the merits.

Note as well that the order of provisional measures should also not be interpreted as prejudging admissibility regarding the merits, or the merits themselves.

Now, Donoghue says the Court *did* decide that Palestinians in Gaza have a plausible right to be protected from genocide. To summarize, this ≠ 'the overall case is plausible.'
Note: part of what is obfuscatory here is that the Court will never be asked to decide this question.

This is because the 'plausibility' test is applied to the question of whether to order provisional measures; it's not relevant to jurisdiction or admissibility or the merits, which will all be decided later.

So, what does it mean to plausibly have the right to be protected from genocide? It means that the Court has assessed that the evidence adduced by South Africa establishes, at a minimum, that Palestinians in Gaza are at a serious risk of suffering genocide or related acts.

Note: South Africa claims that Israel has not only perpetrated, but has also failed in its obligation to prevent and punish, acts of genocide, conspiracy to commit genocide, incitement to genocide, attempted genocide and complicity in genocide.

The Court found that "at least some of the rights claimed by South Africa for which it is seeking protection are plausible" (para. 54). It hasn't told us which. This is a pretty large spectrum.

Not only did the Court to find the plausibility of the right to be protected from genocide, but it also found urgency. This means that, on the facts, the Court found "there is a real and imminent risk" that Palestinians in Gaza would be subjected to genocide or related acts.

It is understandable that commentators shortened the ICJ's finding that the "plausible rights of Palestinians in Gaza to be protected from genocide and/or related acts are at real and imminent risk of irreparable prejudice" to "plausible genocide."

Note: "Plausible genocide" *is consistent with* the Court's finding as articulated by Donoghue; it is also consistent with other findings on the spectrum of rights to which Palestinians in Gaza are entitled. The Court may well think genocide is underway - we just don't know.

Now for judicial ethics. The former President of the ICJ should not have publicly commented on a pending case. In doing so, she has given credence to false and bad faith interpretations of the Court's provisional measures decision. This risks the integrity of the proceedings.