Judging Freedom - Craig Murray (Former British Ambassador) : Analysis of ICJ Ruling

Episode Date: January 26, 2024

Craig Murray (Former British Ambassador) : Analysis of ICJ RulingSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Thank you. Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Friday, January 26, 2024. Ambassador Craig Murray joins us now. The ambassador, who is now a journalist, has covered the the oral arguments that were made in the court two weeks ago, as well as the rulings in the court today. Let's start at the end, because a lot of people are waiting to hear this, even though the news is out there. This is not quite the vindication for South Africa that it had hoped, but it is a nearly unanimous ruling that Israel shall cease and desist and prevent any further acts aimed at killing or eradicating groups, otherwise known as genocide.

So basically South Africa got the ruling that it wanted without the court using the word genocide. Do you agree with my summary, Ambassador Murray? That's lordly right. I mean, it was a partial victory for South Africa, but still a substantive one. Israel's attempts to have the case dismissed on procedural grounds which was the serious side of their of their presentation uh failed completely and um although the court didn't um it didn't use the word ceasefire and it perhaps it didn't use the word genocide it did specifically um order

israel to comply with section 2 of the Genocide Act. So plainly, you know, this is an order to cease genocide. Against a background of an exposition of the facts, which was extremely damning of Israel's actions and made absolutely plain, but the court simply did not believe assurances they'd been given by the Israeli government. Let's go back to the oral arguments when you were one of the very few who were there and able to hear them. In the U.S., of course, it was difficult to hear them, not because of technology, but because the mainstream media blocked a lot of this. I believe mainstream media blocked a lot of the South African presentation in Western Europe as well. The

Israeli presentation, of course, was available for everybody to see. Mainstream media and government attempting to put its thumb on the scales of public opinion. That's nothing new to you or me or to the folks that are watching us now. But from your vantage point in the courtroom, how powerful was the South African case and how well stated was it? It was extremely powerful and meticulously well stated. It was all the more powerful because they explained to the court they had taken the decision not to use atrocity photos. They said that they could have shown thousands of photos of dead children and starving people, but had decided not to do that on the grounds that this was a court of law and that their case was based on law and fact, and it wasn't a case of theatre. So they stated the case and they set out dreadful facts about numbers of dead and mutilated children, for example, about snipers firing into hospitals, about women deprived of the necessary care in childbirth, of people undergoing surgery without anesthetic. They set all this out in a very stark factual way, with fact upon fact piling up and similarly with the evidence of israeli

invocations to genocide by senior israeli government officials that was set out starkly and factually and it was more powerful for that know, but the lack of theatrics actually made it a much more powerful case, in fact. And how did the Israeli defense even make a dent in these claims? Or did it focus on what it argued was the impropriety of the case, the absence of jurisdiction, the absence of standing, the absence of harm to the complainant, rather than going to the merits of whether or not it engaged in genocide. Resolve to earn your degree in the new year in the Bay with WGU. With courses available online 24-7 and monthly start dates, WGU offers maximum flexibility so you can focus on your future. Learn more at wgu.edu. They were two sides to the Israeli case, along exactly the lines you've identified. If you like, their serious effort was put in to various arguments of jurisdiction and

attacking South Africa's standing to bring the case and attacking whether or not letters had been sent on time for to establish a dispute before the case was brought those kind of procedural arguments for where they were really putting in the effort. They then made a number of statements attempting to refute the South African case on genocide, but I don't believe they expected those to be taken seriously. They really were rather extreme statements. I mean, they stated, for example, that the reason so much civilian infrastructure and hundreds of thousands of homes have been destroyed was not because of their action, but because of Hamas booby traps and misfired Hamas missiles. And they stated there were so many child casualties because Hamas was using child soldiers. And they stated that more food is now entering into Gaza than was able to enter before October the 7th.

And these are such claims which so wildly contradict everything on the public record from respected bodies in the United Nations, for example, that I don't think they expected those to be taken seriously by the court. I think those were made for theatrical purposes. Those were made for propaganda. What they expected the court to take seriously were their arguments of jurisdiction and procedure? And they lost on jurisdiction and procedure. As I recall, she didn't even give a vote on that. It must have been 17 to nothing of the 17 judges on jurisdiction and procedure. And that means that the Israeli judge, remember, South Africa got to appoint a judge and Israel got to appoint a judge, that means that the

Israeli judge voted against his own country on jurisdiction and procedure. That is, that the case was properly before the court, that South Africa made a proper claim, and that the court had jurisdiction over the claim. The judge, as I recall, didn't even give a vote on that, so I'm assuming it was 17 to nothing. Let's go to the actual rulings. We'll start with the first one, Chris, that South Africa's claims are plausible and the court has jurisdiction. In the court's view, the aforementioned facts and

circumstances are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article 3 and the right of South Africa to seek Israel's compliance with the latter's obligations under the Convention. The court then turns to the condition of the link between the plausible rights claimed by South Africa and the provisional measures requested. Stated in English, because South Africa and Israel are both members of the United Nations, and this is the United Nations highest court, because South Africa and Israel have both signed the Convention Against Genocide, South Africa is a proper party to file a complaint,

and the court has jurisdiction over that complaint, over South Africa, and over Israel. And again, Ambassador, I didn't hear her give a number, so I can only assume it was unanimous. One of the judges could have remained silent and not voted, but she didn't give a number on that. However, it's really, even though the Israelis spent so much time on it, it's a specious argument to suggest that the highest court in the land doesn't have jurisdiction over something happening in the land, particularly when the two parties, South Africa and Israel, consented to jurisdiction at the time they signed the treaties.

Agreed? Yeah, that's true. And Article 9 of the Convention specifically says that if there is a dispute between two parties to the Convention as to whether a genocide has taken place, then that dispute will go to the International Court of Justice. So I thought the South African arguments were pretty desperate, and I'm not surprised there wasn't a vote on it. South Africa's main argument was that, sorry, Israel's main argument was that the South Africans failed to try to reach an agreement with them in advance of going to the International Court of Justice. But nowhere in the convention says you has to. And plainly, that wasn't very likely to happen.

Right. I mean, that's a standard legal argument. If you're in court with an adversary and the judge says, did you two try and work this out by yourselves? And both lawyers say, well, no. Okay, go out in the hallway and try and work it out. But this is not that type of case. This is a case involving life and death. This is a case involving deaths of millions.

This is a case that seeks or sought and received and begged for and received immediate relief. Chris, let's go to the rulings. The first ruling, 15 to 2, is that Israel shall take all measures to stop the killing of members of a group just because they're in the group. That is to stop murdering Palestinians, to stop committing bodily harm on people just because they're Palestinians, to stop the physical destruction of their property just because they're Palestinians. This by 15 to 2. Here's the presiding judge. I shall now read out the operative part of the order. For these reasons, the court indicates the following provisional measures. One, by 15 votes to two, 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 the Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article 2 of the convention in particular a killing members of the group b causing serious bodily or mental harm to 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. Pretty clear what they're doing. They said what South Africa wanted them to say. Of course, they didn't use the word genocide, but I'll let you expand and expound on this, Ambassador. When you're talking about killing people in a group just because they're in the group,

non-combatants, it's pretty obvious what they're talking about. What do you think? I think that's absolutely plain. And earlier in the judgment, she had gone through and she had said there were over 25,000 people dead, over 70,000 people maimed and she uh referred to innocent uh civilians uh and to the destruction of infrastructure which of course is also covered by that ruling where it talks of uh you know making conditions of life that make it impossible for people to continue so um now this is extremely important because plainly, court doesn't make an order like that if it doesn't believe that there is at the very least a danger that the person, the order, or the state the order is being made against might indulge in that behavior. The court doesn't just make an order like that for no reason. And in my view, listening to the tone and balance of everything that was said leading up to that point led me to think that the court is minded to find genocide in the substantial case, believes more than just that there's a plausible risk of genocide, because there's a very substantial amount of evidence that what is

happening is genocide. And this was an order to stop it. You know, plainly, it's an order to stop it. And they may not have used the word ceasefire, but that amounts pretty much to ceasefire. It may well be that the court hasn't ruled out a military action that stops short of what's been happening so far, that the court may view limited anti-terrorist operations not causing a lot of civilian casualties to be still viable. That's a possible interpretation, but it's absolutely plain that what has been happening so far has to stop, and the court has ordered it to stop. Chris, let's go to ruling number two, which is pretty much redundant, another 15 to 2. By 15 votes to 2, the State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above. That's kind of obvious. Let's go to number 3, Chris, which is a 16 to 1 vote. 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.

This is extremely poignant and, in my view, aimed directly at the Netanyahu government on the war cabinet of which sit two champions of genocide is the only way to describe these two gentlemen. And the court is ordering Israel to take measures to prevent those in the government and outside the government from whipping up the fires of genocide. and this is the first time we hear her use that word. What do you think, Ambassador? Yeah, and it's all the more definite because in the preceding talk through the case, she actually quoted four instances of Israeli ministers making pro-genocidal statements. So this is very pointed indeed. This is pointing a finger at those ministers whose statements she quoted, one of whom, of course, was the president of Israel. She quoted a statement of genocidal intent from the president of Israel,

and now she's saying that Israel has to take all measures to prevent them. And she also quoted earlier a commitment by the Attorney General of Israel to prosecute people who have made genocidal statements. And that's something which the court is going to be looking to see action from Israel on. So this is very pointed indeed. And it goes to the question of intent, of course. It is making plain that there has been clear intent of genocide expressed by ministers and others, and by military chiefs and, of course, others, downright to members of the public. Everyone has to stop it, and those that do it or have done it have to be punished. You know, getting into the weeds, into the middle of the words, into the meaning of words, into the value judgments expressed by the words, it's obvious that the court recognizes that there was genocidal intent, and intent is not just an academic argument. Intent is the linchpin

for jurisdiction, meaning in plain English, if genocide occurred by accident, the court doesn't have jurisdiction. If genocide occurred by intent, the court does have jurisdiction. And it's clear that the court found that there was genocidal intent. I want to go to the last ruling. It's very important in light of what happened in the Security Council and in the Senate of the United States. Ruling four, Chris. By 15 votes to two, 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 the order. Senate of the United States of America voted 88 to 12 against requiring a report from Prime Minister Netanyahu's government as a condition of the aid that the American government gives to the Israelis, and the U.S. ambassador to the U.N. vetoed such a request in the Security Council. I guess this ruling now goes to the Security Council,

where the U.S. will veto it, and your former colleagues, who do whatever the U.S. wants, no criticism of you, of course, will either go along with the veto or will abstain. It only takes one veto from a permanent member of the Security Council to block any action. What do you think, Ambassador? Yeah, no, that is what's going to happen. This will go to the Security Council, where it will be vetoed by the United States. It's getting more difficult. I mean, Joe Biden obviously has problems with key parts of his own democratic coalition, who are extremely unhappy about supporting genocide. And this ruling is going very much to strengthen their arm. And we must remember that this case, which the ICJ has now declared is plausible and is going to be heard,

Joe Biden had declared it meritless. And he's now contradicted by 15 of the most senior judges on the planet. So this gets more difficult for the United States, but I don't doubt, just given everything in Biden's record, it will still be vetoed. Then it will go back to the General Assembly. And while people say the General Assembly has no force, it should be noted that a key part of today's judgment was their reading out of a resolution of the General Assembly. And the ICJ has a very close relationship with the General Assembly. The General Assembly asks the ICJ regularly for opinions on matters before the General Assembly. So it will go back there, and there the United Criminal Court Act of 2001. And complicity in genocide is an offence in law here.

So if the ICJ rules that this is a genocide, ultimately, those who were shipping weapons to Israel, those who were organizing surveillance flights to assist Israel in bombing Gaza, those who were passing intelligence to Israel, and the senior politicians who orphanized all of that, they're all potentially at risk of criminal charges, domestic charges, for complicity in genocide. And I'm quite sure that will be true in quite a number of countries. So I do think this has the potential to affect behavior of states. Last question, and we have to go in a moment. How damaging is this to Israel in the international court of public opinion?

Here in the U.S., it's obvious that Israel has lost the PR war. This certainly will proceed along that path, don't you think? I think that's true. It's also going to make it very, very difficult for the mainstream media to continue to to mop uh accusations of uh genocide and to pretend that none of this is is really happening and you're right that um israel has lost the propaganda war but it's lost it uh because of people like your your good self and many other citizens active on on essentially social media, because the mainstream media

has been appalling in its pro-Israel bias across almost the entire Western world. Ambassador Craig Murray, it's a pleasure. We could talk all afternoon. Thank you. Thank you very much for your time, sir. Very much appreciated. Thank you. All right. We have more for you today. First of all, I will, and Professor Jeffrey Sachs will read all the opinions and the dissents, and we will analyze those for you at two o'clock this afternoon, at one o'clock this afternoon, the round table. I said that in the wrong order. So at one this afternoon, Eastern, Ray McGovern, Larry Johnson on this very topic. What does this mean for Israel? What does it mean for the continuation of the war?

And at two o'clock this afternoon, an academic serious analysis by Professor Saxon by me. Judge Napolitano, thank you so much for watching. The numbers are huge this morning. Judge Napolitano. Thank you so much for watching. The numbers are huge this morning. Judge Napolitano for Judging Freedom. Thank you.