Analysis: while some believe Ireland needs to take action now, the Government wants to wait for the court's preliminary findings, so who is right?
Debate around whether Ireland should intervene in support of South Africa in its case against Israel before the International Court of Justice (ICJ) continues to grow. The first such call came on January 3rd in a letter addressed to the Taoiseach and Tánaiste from a group of four senators, just days after South Africa had filed its application on 29 December.
Initially, Taoiseach Leo Varadkar responded that Ireland did not intend to join South Africa's case. This led to a response from the main opposition parties accusing the government of 'cowardice’ and ‘double standards’, given its intervention in a previous Genocide Convention case, Ukraine v Russia.
The Tánaiste Micheál Martin offered a more considered view in a recent article. He set out that South Africa’s case will be the subject of rigorous analysis, and "if we judge that an intervention is warranted, we will submit one." Following a January 24th debate in the Dáil, the Government has now indicated that it will ‘strongly consider an intervention in the South Africa v Israel case at the ICJ, as a matter of urgency after the Court has made its order on preliminary measures and the filing by South Africa of its memorial in the case.
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From RTÉ Radio 1's Late Debate, should Govenment publicly back South Africa's case against Israel? With Mary Seery Kearney (Fine Gael senator), Annie Hoey (Labour senator), Verona Murphy (Independent TD for Wexford) and Jack Horgan-Jones (The Irish Times)
Much of the focus is on timing. While opposition want Ireland to ‘initiate our action now’, the Government is arguing that ‘it makes sense that we wait for the Court to make its preliminary findings’ before deciding on an intervention. So who is right?
Declarations of intervention
Declarations of intervention before the ICJ are governed by Article 63 of its Statute, which grants states a right to intervene ‘whenever the construction of a convention to which States other than those concerned in the case are parties is in question’. Because Ireland is a party to the Genocide Convention since 1976, we have a "right" of intervention in all Genocide Convention cases that come before the Court, but the admissibility of any such intervention still rests with the Court.
Earlier genocide cases before the ICJ such as Bosnia v Serbia and Croatia v Serbia did not see other parties to the Genocide Convention intervening. This changed dramatically in Ukraine v Russia, where 33 states intervened in support of Ukraine’s position, including Ireland. This unprecedented situation led the Court to issue an order in June 2023 on the admissibility of these "mass interventions".
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From RTÉ Radio 1's News At One, Social Democrat leader, Holly Cairns, explains her party brought a Dáil motion seeking State support for South Africa in its case against Israel at the ICJ
Russia argued that the ‘real intention’ of the intervening States was not to express their views regarding the construction of Genocide Convention, but rather to side with and advocate for Ukraine. The ICJ decided that the question of a State’s motivation ‘is not relevant’. Thus, an intervening State may well be (and usually is) motivated by support for one side or the other, and the Court won’t look into that.
However, the Court also emphasised that intervention under Article 63 has a limited scope, and the intervening State can only submit observations on the construction of the convention in question - it does not become a party to the proceedings. This affirms the primary purpose of intervention, which is not to support one side – a State can do that in other ways – but to offer observations on the construction of the convention, which may well be in support of one side.
Timing
In Ukraine v Russia, Russia argued that interventions should not be allowed in the preliminary phases. This was rejected by the Court, and so interventions can be entered at any stage in the proceedings. But that does not mean that they should be entered during preliminary phases.
From RTÉ News, "The first genocide in history where its victims are broadcasting their own destruction in real time". Excerpt from lawyer Blinne Ní Ghrálaigh's address during South Africa's case against Israel at the ICJ at the Hague.
The Ukraine case does not argue that Russia is committing genocide, but rather that Russia used alleged genocide in the Donbas as a pretext for invasion. This raised valid issues of the Court's jurisdiction under the Genocide Convention. Many of the interventions (including Ireland’s) addressed this jurisdictional point. Hence, it was appropriate that interventions there were entered at a relatively early stage. Even then, the first by Lativa (July 2022) was filed some fourth months after the Court’s order on provisional measures (March 2022); ours came six months after.
In The Gambia v Myanmar, a case involving the alleged genocide by Myanmar of the Rohingya people, there were interventions by Canada, Denmark, France, Germany, Netherlands and UK (jointly), and Maldives. Note that Ireland did not intervene in this case, and so it is not accurate to speak of a 'double standard’ where there are other (recent) examples of our non-intervention in Genocide Convention proceedings. The interventions here were filed after the Court had decided on provisional ("emergency") measures and preliminary objections (jurisdiction).
In The Gambia case, the interventions were filed after the Court had decided on provisional ("emergency") measures and preliminary objections (jurisdiction). South Africa’s case is much closer in kind to The Gambia’s than it is to Ukraine’s, and any declaration of intervention is likely to relate to the merits of South Africa’s claim. Hence, it can be appropriate to wait for these preliminary phases to be advanced or completed before entering any such declaration.
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From RTÉ Radio 1's Morning Ireland, Prof Robbie Sabel, international law expert at the Hebrew University in Jerusalem, discusses Israel's defense of accusations of genocide made by South Africa
Having that said, a statement of an intention to intervene can come at any time. Germany did this in support of Israel, but it has been criticised for acting too hastily - as one German commentator concluded, 'rushing to make a public announcement of intervention only two hours after the close of the oral hearings on provisional measures, and before the ICJ could examine, let alone find that, prima facie, it had jurisdiction to deal with the case, was politically motivated.' A statement of intention to intervene following the Court’s decision on provisional measures (due this Friday) would not be out of place, but it should be based on an initial assessment of what our legal contribution might be.
What can Ireland highlight by intervening?
If we are to intervene, the principal question to be asked is what aspects of the construction of the Genocide Convention we might usefully highlight to the Court. In this way would we best support South Africa. For example, we could explore elements of genocide that engage acts beyond killings, such as the health system in Gaza. 'Almost above all else', South Africa’s application reads, ‘Israel’s military assault on Gaza has been an attack on Gaza’s medical healthcare system’. Hospitals are described as scenes from a horror movie, recounting amputations without anaesthesia including on children. Over 1,000 healthcare workers in Ireland have called for an intervention on this basis.
We could also explore the targeting of the foundations of Palestinian life such as the destruction of archives and other cultural heritage extensively listed in South Africa's application, and how this relates to the legal understanding of genocide.
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From RTÉ Radio 1's News At One, Prof Ray Murphy from NUI Galway on South Africa's genocide case before the ICJ
A final aspect to consider is a joint declaration of intervention. In Ukraine v Russia, Russia challenged a declaration by Canada and the Netherlands as inadmissible since Article 63 did not envision joint declarations. The ICJ not only rejected this argument, but also offered encouragement to this approach, finding that ‘the joint presentation of shared views can advance the good administration of justice.’
Ireland should see if there are other states, in Europe or elsewhere, who may wish to collaborate on a joint intervention. For example, there are governing parties in Belgium pushing for an intervention in support of South Africa. A group of Belgian international lawyers have also called on it to intervene, focussing on the health system in Gaza among other aspects.
Ireland would best support South Africa and the situation in Gaza by making a meaningful intervention on the construction of the Genocide Convention, but first the case should be allowed progress beyond preliminary phases. In the meantime, a statement of intention to intervene and collaboration with Belgium or others may be actively considered.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
