voice-over: this is bbc news. we'll have the headlines and all the main news stories for you at the top of the hour, straight after this programme. welcome to hardtalk. i'm stephen sackur. last december, the world's highest court, the international court ofjustice, began considering a case which has stirred debate and controversy around the world. the state of south africa accused the state of israel of violating the genocide convention in gaza. in its initial ruling, the court overwhelmingly found

there was a plausible case to answer, but a finaljudgment is likely to take years. today i have an exclusive interview with joan donoghue, thejust—retired president of the icj, who delivered that initial court ruling that sent shock waves around the world. in a sense, the whole idea of internationaljustice is on trial. how will it fare? joan donoghue, welcome to hardtalk. happy to be here. you sat on the international court ofjustice for pretty

much iii years. the last three years as president of the court. one of your last cases was the case brought by south africa against israel on the basis of genocide in gaza. were you aware of the scale of international scrutiny on that particular case? yes, absolutely. it was very clear. and in particular, or, for example, outside of the peace palace, where the court sits, there were two groups of demonstrators, or interested people, and one of them had a big jumbotron set up outside so that the participants there could watch what was going on inside. and we were aware of people around the world watching the delivery of the order. do you feel the pressure in that situation? i wouldn't say that i felt pressure but i felt that the delivery of the order itself would be something that would matter, including

in the way i delivered it to regular people, notjust to international law experts or to the people who were in the room with me. the preliminary order, how you delivered it and what it said, we'll get to injust a moment, but i think it is important for people around the world to understand exactly how the international court ofjustice works. it's called the highest court, if you like, in the world, because it's where states come to settle disputes. but states don't necessarily have to consent to be before the court, do they? that's right. when the court was set up in the un charter, there was a debate about whether all un members should be required to accept the court's jurisdiction and, instead, the outcome, not surprising in the world of realpolitik, is that states can consent in a variety of ways, but they're not required to consent to have their cases settled by the court. but in israel's case, and of course it goes without saying that

israel regarded this case as illegitimate, but israel was before the court because israel is a signatory to the genocide convention, and south africa brought its case on the basis of violation of that convention, to which israel was a signatory. that's right. so, did you expedite it? was it treated unusually compared with other cases before the court? erm, somewhat. we... the court is required in its own rules to give expedited treatment to any request for provisional measures. and, in this case, the request, if i recall, was filed on the 29th of december, and we have to allow enough time for the respondent to prepare. so we're always trying to build expediency on the one hand and also fairness to the respondent. so we worked... we did work quickly. would it be fair to say,

and i'm no lawyer and many people watching and listening will not be lawyers, but would it be fair to say that the key point that you made your initial order and ruling upon was whether or not there was a plausible case that should be taken on by the court of genocide in the case of israel's actions in gaza after october 7th? and you quite clearly decided that there was a plausible case. is it right to say that's at the heart of what you decided? you know, i'm glad i have a chance to address that, because 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. so 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's often said in the media, it didn't 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, which is that there's a plausible case of genocide, isn't what the court decided. what was the most important evidence upon which you 17 judges made your decision? was it evidence from the ground of the scale of humanitarian suffering in terms of lack of aid getting in? was it the scale of the killing? because at the time, i think the death toll in gaza was deemed to be, although the numbers aren't verifiable, was deemed to be over 25,000. so was it that? or was it actually some of the words used by very senior officials inside israel, which pointed, according to yourjudgment, perhaps, to the plausibility of the case?

well, we took all of those points into account. actually, we were very lucky because both sides shared a lot of evidence with us, so we felt like we really had a chance to look carefully at what was there, and we sifted through... and in the order, which is actually not very long, we tried to call attention to the pieces that we thought would provide the basis for our decision but that we thought was the most authoritative. so we were looking especially at evidence from people who we thought had access, at least first—hand or close to first—hand access, to what was going on on the ground. and we did give some weight also to statements by senior israeli officials after checking them and making sure that the statements we were using were actually what was said. how difficult was it, as president of the court, supervising discussion amongst you i7judges? how difficult was it

to reconcile very strong and passionate differing, diverging opinions? i'm just looking at things that aharon barak has said since. now, he was the israeli judge appointed to this court by the israeli government. he said that there was scant evidence for the order that you came out with and he said the idea that israel is now accused of committing genocide is, "very hard for me personally, as a genocide survivor. "i strongly disagree with the court's approach "regarding plausibility, and i in particular disagree "on the question of intent." were his words ignored? no, not at all. in fact, he participated, as did the judge appointed by south africa, in a very constructive way in these deliberations. and it's true that he made those points in his separate opinion, but he also voted with the court to impose significant measures on israel, the state that appointed him. and i can only say that we listened very carefully to what he had to say

in the deliberations, as we did to the judge appointed by south africa. we were lucky because both of those gentlemen had experiences in their national courts and had a history of not simply rubber—stamping whatever the government had said in their country, and they participated actively and constructively. you talked with me just a minute ago about your awareness of the import of your order, your ruling, before the world's cameras. you did it very slowly and deliberately but the words were important. you emphasised the urgency of all this. at one point, you said the court considers that the civilian population in the gaza strip remains extremely vulnerable. that sense of urgency is obvious. in that case, many people are asking, why on earth didn't you use your platform, that voice, to call for an immediate ceasefire? well, the most, i don't feel comfortable describing

what we discussed in the deliberations. i can just say that we look at what was requested and we... but our test is, what do we think is necessary to preserve the rights that we consider as plausible? so we didn't find that necessary. and so what you did say in your ruling is this, "in relation to palestinians in gaza, "israel must take all measures within its power "to prevent the commission of acts within the scope "of the genocide convention." it's now weeks and months since you issued that order. do you think israel is complying with it? so i won't answer the question directly, because it's actually a question that will be before the court, but i will say, personally, it's disappointing what has happened since then. we hoped at the time that our closely watched order would be more of a contributor to a solution. and you'll recall that at that time there was a lot going on in terms of negotiations, etc, and while i assumed i would never know how our order might

play into those negotiations, i hoped that it could be a factor that would help push things towards an outcome in which the hostages were released and the tragedy would end in gaza. the human rights watch director responsible for israel and palestine has said this — "israel's blatant disregard for the world court's order "poses a direct challenge to the rules—based "international order." do you agree? well, i'd say the... the compliance generally with the court's legally—binding orders and judgments is good. it's always disappointing when there isn't compliance. we don't know the full extent of what israel might have done to respond to this. israel was required to submit a report... within a month. it did so. the report is not public. i haven't seen it, nor have i seen what south africa

said in response. but it is possible, and one can hope, that within the israeli government, the lawyers in the room are better equipped to try to, erm... ..urge certain changes in the behaviour of the israeli military, for example. i don't know. i don't have visibility into that. i just wonder, given your knowledge of the case and the fact that you've just retired as president of the court, when you hear benjamin netanyahu, prime minister of israel, say that his forces will go into rafah, where more than a million palestinian civilians are currently surviving, having been displaced from their homes... the army will go in, he says. it will do whatever it needs to do to continue its operation to eliminate hamas. how do you think that fits with the court's order that israel must comply with its initial preliminary ruling?

well, since the court didn't make an order that's expressly about the military operation, it can't be said that continuing the operation itself violates the order. but, quite clearly, the threats about going into rafah are the reason why south africa went back to the court and why the court imposed additional, more precise measures. you know, ifully understand why that was seen to be necessary. do you think, as you look at what's happening today, it is a challenge to the credibility, to the utility of the international court ofjustice? what has happened since you issued that preliminary order. well, erm, it is a disappointment when the decisions of the court are not seen to change things quickly, as one might hope. those who are only looking at this case and only looking at that order would likely reach that conclusion.

but in the international law community, i think there's a longer horizon, usually, that we look at and more of an appreciation that courts don't really solve these kinds of problems. they can contribute to solving the problems, but they'rejust a piece of a broader international infrastructure. right. but when we talk about the mechanism of the court, isn't one of the gravest problems with the international court ofjustice that it is likely the conclusive ruling, decision, on south africa's case won't come for years, judging from the pace at which other cases go through the court. what use is any decision, any ruling of the court, to palestinians, when whatever they experience in terms of israel's military actions in gaza, frankly, will be long over by the time the court reaches a conclusion about what israel did? well, it's a question that would be usefully put to the applicant state, to south africa, because any close observer of the

international court ofjustice knows that these kinds of cases do proceed slowly, that the respondent, israel, is entitled to raisejurisdictional objections. and if it does so, that'll slow things down further. but state after state knows that and believes that it's in the interests of that state to pursue the case to hear, the state hopes, vindication of the legal views and factual claims that have been put forward by that state. so it's sort of more political and symbolic than it is meaningful in terms of protection for people on the ground. is that what you're saying? it depends. it depends on the case. i mean, the palestinians have been pursuing their concerns vigorously in a variety of fora and will continue to do so, and this will be an element that they will come back to over and over again. were you stung, again as president of the court, in this particular case? were you stung by the reaction of israelis? i'm looking here at the words

of benjamin netanyahu, who described the south african case as a vile attempt to deny israel — this fundamental right to self—defence. it is, he said, "blatant discrimination" against the jewish state. he's almost implying there that there's something anti—semitic about the court taking on this case. erm, to be honest, the kinds of statements of that sort that are really directed at a political audience, i usually don't pay very much attention to as a judge. imean... doesn't hurt you? doesn't hurt me, no. but i didn't bring the case in any event. the case was brought to the court. but for me, erm, the important thing is to look within the four corners of the court's mandate, which is quite limited. imean... yeah. that's part of the difficulty for us. what about the more specific argument put by many in israel and supporters of israel, that there was damage done by the taking on of this case because it didn't pay close

enough attention to the role of hamas? hamas, as they would put it, is a terrorist organisation, which embedded itself in a civilian population. to quote one supporter of israel in the united states, rabbi elchanan poupko, he said the damage of this decision will last generations because every terrorist group listening to this decision has learned that to hide among civilians whilst killing others and then getting the army, that is the israeli army, fighting back at you, is going to have them, the israeli army, labelled as genocidal. it's an outright win for terrorism. i haven't seen that quote but it's pretty unconvincing. i don't see anything in the court's order that suggests that the court considered any questions about particular combatants hiding among civilians. there is, however, a broader point, which is that because the court has jurisdiction only over cases between states, and hamas is not a state, the court is not in a position to order hamas at all. the only thing we could do and we did do, at the very end

of our reasoning, is to state very specifically that we condemned what hamas had done and to call for the immediate and unconditional release of the hostages. we felt that was very important. there was no question on our part that we needed to do that. but, regrettably, because of the structure of the court, because hamas is not a state, we aren't in a position as a court to do more than that. i guess it's notjust israelis who will notice this, that the court was established in the 1940s, and since the 1940s, we've seen terrible incidents of mass killing based on group persecution. you know, we've seen it in cambodia, we've seen it in rwanda, we've seen it in the balkans, we've seen it in darfur, we've seen it in far too many different places around the world. and yet the icj, as far as i understand it, has never convicted a state of genocide in all of its years of history. why is that?

i mean, now you're considering israel, but you haven't actually convicted any other country ever of genocide. you know, the court doesn't control its inbox. the cases are the cases that are brought to the court. but i think you don't have the facts quite right, because there have been three prior cases brought... well, two cases brought to the court in the context of the former yugoslavia. i'm aware of serbia and croatia being examined before the court in terms of genocide, but as i understand it, the court would not, did not, rule that they were guilty as states of genocide. it certainly said they took actions which allowed genocide to happen, which is obviously a very different thing. but i come back to my point that as states, no state, as far as i'm aware, has actually been, if one can use the term, you know, found

guilty by the icj of genocide. well, you just bear in mind that, first of all, the court did decide that serbia had breached obligations under the genocide convention — its obligation to prevent the genocide in srebrenica. and that goes to a point... but wasn't found responsible of it. right, but it's important to remember that the genocide convention does notjust impose on a state an obligation, "don't commit genocide". you don't even see that in the text of the convention. the obligations of a state go fundamentally to preventing and punishing genocide, and also there are obligations in respect of the incitement of genocide. so all of those kinds of claims on their merits can be looked at in a case, and finding that a state failed to prevent... present... prevent acts of genocide that took place, as those that took place in srebrenica, is hugely significant internationally. i don't have any doubt about that.

you've just retired from the court. maybe now is time to consider whether you think the court is actually fit for purpose. we've already referred to the slowness of the way in which important cases processed through the court can take many, many years to get a decision. i believe right now there are at least 20 cases grinding through the court. 0ne dates back to the 1990s. but there are other questions, too, about the diversity of the judges on the court. there are 12 men and three women at the moment. you've acknowledged that far too many of the judges come from the white developed world, not from the global south. is it fit for purpose? i think it is. the, erm... the members of the court are selected in a manner that is representative of the world. there are only 15 of us, so it won't be fully representative ever, but they're elected in simultaneous election by the general assembly and the security council, and they are chosen in order to have diverse views. we disagree with each other privately and then when we disagree, we do that in writing in separate

opinions, and that's part of ourjob — to try to come to a solution. by the way, the slowness point, i think, could mislead your audience because the court actually works quite quickly. but if it is delivered at times, it's because we work in an incredibly collaborative manner. this court group of 15 people reviews each paragraph of every order, everyjudgment, jointly, several times. right. but you have said quite openly that the resources available to the court have stagnated, its workload has increased dramatically and it's difficult to cope. but more than that, surely there's a bigger point. i'll end with this — that it was created, the icj, after world war ii as an expression of hope and idealism that, you know, human beings could collaborate,

nations could collaborate to stop the worst elements of humanity coming to the fore. of course, genocide being one example. on that basis, it's failed, hasn't it? and if we look around the world today, we see the rise of more and more nationalism, big states refusing to cooperate, more and more competition, rivalry, and war in the world. the icj looks like a failed experiment. well, it depends on what your definition was of the goals for the icj originally. it wasn't created as the solution to all the problems you mentioned. it's part of an infrastructure, a limited part, and it's a court. it can only do what a court is equipped to do. it can decide the cases that come to it fairly, impartially, and as well as it can, in the hope that those contributions fit within a broader constellation of solutions. right. but if the big powers in particular... because in the end, you don't enforce, you require the security council to enforce. and if the security council is hamstrung by great power rivalry, then the entire edifice doesn't really function. i don't agree with that.

the record of compliance with icj judgments is good. states almost never go to the security council because states have an incentive to comply, independent of what the security council does based on their reputation as a good partner, their desire to show themselves as... ..faithful to international law. they have many incentives to comply. they don't always comply, and the case you've been speaking about... israel. ..is an example that many people have expressed disappointment about, and i understand that, but mostly they do comply. and i think the court does contribute in an important way. joan donoghue, i'm afraid we're out of time. thank you so much for joining me on hardtalk. thank you.

hello there. some really chilly—feeling air for the time of year, and it's going nowhere for the next couple of days. but of course, the sunshine�*s helping to lift the temperature somewhat. lots of blue sky across many parts of scotland, 13 celsius in edinburgh, butjust seven degrees for these north sea facing coasts such as scarborough. lots of clouds, and a brisk, a bitter northerly wind blowing, too. and as we head through the rest of tonight, there's a little feature running southwards bringing the threat of some further showers, possibly wintry over the hills of scotland. temperatures dipping very close to freezing into thursday morning. watch out for some icy stretches perhaps. and it's still blustery for those north sea facing coast, and across the northern isles as well. a mixture of sunny spells,

but also some showers across many northern areas of england, scotland and northern ireland. more cloud and some showers pushing southwards across england and wales. temperatures again towards the east, just 8—10 degrees celsius, but a little milder again further south and west. now, as we head through thursday night, then there'll be a lot of clear spells around. again, it's another cold feeling night for the time of year, the snow levels again dropping across parts of scotland. another frost for many of us as we head into friday morning. again, watch out for some icy stretches here and there. friday, we'll start to see a few changes. this area of low pressure starts to push in to south west england, affecting parts of the channel islands as well, bringing some more showery outbreaks of rain here. and the winds will fall lighter as well, so it won't feel quite so bitterly cold towards those north sea facing coast. but still, the bulk of the showers will be here. a scattering of showers, also some sunny spells, probably sunniest out towards the north and the west again. but temperatures still very low for the time of year, below the average, 8—12 degrees

celsius for most of us. things are set to turn a little less cold, though, as we head through the weekend. some milderfeeling air. and it's going to be quite unsettled, tending to be drier in the north and the west. so, if we just look at this low pressure system. it's spinning in from the south. it's going to give plenty of wet weather, particularly towards the south and the east, but also some milder feeling conditions. temperatures will rise to more or less the seasonal average. so certainly no heat wave. here's the temperature outlook for our capital cities as we head through the weekend and into the start of next week. so not as cold, but really quite showery. bye— bye.

live from london. this is bbc news. police clash with pro—palestinian demonstrators as a wave of protests intensifies at university campuses across the us. top us diplomat antony blinken is in china — aiming to put relations between the countries on a steadierfooting. film executives fear the summer movie season could disappoint, with fewer than expected blockbusters in the wake of last yea r�*s actors and writers strikes. hello, i'm sally bundock. we begin in the us, where police have clashed with pro—palestinian demonstrators as a wave of protests intensifies at university campuses

across the country.