A February 2024 article in the King’s College London student newspaper attempted to utilize South Africa’s case against Israel at the International Court of Justice (IJC) as a basis for criticism against Israel. However, in doing so, the article consistently misrepresents the character and meaning of international law to further political narratives. Of particular concern was the portrayal of “plausibility” — to which the author claimed the “charge of genocide has been considered ‘plausible’ by the court.”
Although the article’s mistake is understandable, given that reputable sources were similarly confused, it is essential to clarify that the plausibility test in the ICJ is not meant to determine whether the claims asserted by South Africa were plausible.
Instead, the test was designed to assess whether the rights claimed by the applicant were plausible. This distinction was clearly articulated during an April 2024 interview on BBC Hardtalk, in which Joan Donoghue, the former head of the ICJ at the time the provisional measures were issued, made the following statement:
The court’s test for deciding whether to impose 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.
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 is often said in the media: it did not decide that the claim of genocide was plausible. It did emphasise 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, that there is a plausible case of genocide, isn’t what the court decided.
The Genocide Convention was established in 1948, following Raphael Lemkin’s 1944 coining of the term to describe Nazi policies during the Holocaust and the Armenian genocide. The crime of genocide was unique, differing from other crimes against humanity due to two crucial prerequisites outlined in Article II of the Convention.
Article II: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
Firstly, to warrant the charge of genocide, the claimant has to prove intent, referred to as dolus specialis.
This highly specific intent differs from the standard mens rea form of intent, and is the most challenging factor to determine in a genocide case. The second prerequisite needed for a group to be protected under the Genocide Convention is their classification as one of four groups: National, Ethnic, Racial, or Religious.
Here, we begin to understand the meaning behind Donoghue’s statement. That being, the Palestinians fell into one of the four protected groups and, therefore, “had a plausible right to be protected from genocide.” This interpretation of plausibility significantly contrasts with the one in the article, thereby altering the narrative regarding the outcomes of provisional measures.
The article then inverts international law for a second time by misleadingly stating that the use of white phosphorus is deemed “illegal by numerous legal scholars.”
This statement implies that the use of the substance is entirely unlawful. However, it fails to provide meaningful context surrounding this assertion.
The international law surrounding incendiary weapons is unambiguous. According to Protocol III, Article 1(b) of the Convention on Certain Conventional Weapons (CCW), weapons which have “incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems” do not qualify as incendiary weapons.
Military manuals, including those of the United States, consider white phosphorous munitions to be primarily intended for (6.14.1.3) “marking or illuminating a target or masking friendly force movement by creating smoke.” Therefore, such restrictions outlined by the CCW do not apply to the use of white phosphorous.
Similar to its application in Gaza and Southern Lebanon, the munition has been used in Syria by US-led forces, who employed it for “screening, obscuring and marking” while engaging ISIS militants. British troops in Afghanistan and Iraq have also used it as “an obscurant and not as an anti-personnel weapon.”
While modern militaries commonly use this type of weapon, the article characterizes Israel’s use of the substance as unique.
In addition to misrepresenting legal arguments, the article makes multiple factual errors, the most egregious being the mischaracterization of Yoav Gallant’s words immediately following the events on October 7th. The article asserted that “Israel’s Defense Minister should be expected to consider his words more carefully” on account of his use of “human animals” referring to the perpetrators of the largest attack on Jewish life since the Holocaust. The author insinuates that Gallant was referring to all Palestinians when he made the comment.
In reality, when looking at the full quote in context, it becomes clear that Gallant was solely referring to the terrorists who undertook the brutal attack:
You fought courageously, and you acted in the spirit of the IDF exactly as it should. You resisted valiantly on the front lines; you hit many terrorists and saved lives. You saw with your own eyes against what we are fighting – against human animals – the Islamic State of Gaza.
The King’s College article illustrates how misrepresentation and selective framing of international law can distort political narratives.
In clarifying the ICJ’s use of “plausibility,” the legal status of white phosphorus, and the context of Yoav Gallant’s remarks, it instantly becomes clear how easily misrepresentation can not only skew public perception, but also detract from meaningful engagement with the underlying legal and humanitarian challenges in the Middle East.
This article was originally published in The Algemeiner.
