Justice Wells says Gaza genocide case has no legal merit

The High Court has dismissed an unprecedented application by social activist David Denny for Barbados to hold Israel accountable for genocide in Gaza, describing the case as an abuse of process.

In a strongly worded summary of his 118-page judgment delivered in the No. 10 Supreme Court on Tuesday, Justice Dr Patrick Wells ruled that the action brought by Denny against the Minister of Foreign Affairs and Foreign Trade, the Director of Public Prosecutions (DPP), the Immigration Department, and the Attorney General was a waste of State resources and had no right before the court.

Denny was seeking to invoke provisions of the island’s Genocide Act in a bid to hold Israel accountable for alleged genocide, war crimes, and crimes against humanity in Gaza.

The respondents had asked the court to strike out the claim and statement of claim on the grounds that the issues raised were outside the court’s jurisdiction and not actionable against them. They also argued that Denny, who is the general secretary of the Caribbean Movement for Peace and Integration, had failed to demonstrate any personal or legal interest in the matter, and that the claim did not disclose any specific cause of action.

Justice Wells agreed, ruling that the case had no legal merit and was politically motivated.

“The court finds as a matter of law and fact, that the claim before the court by the respondent, discloses no reasonable cause of action,” the judge stated.

He said the court had taken this view after assessing the limits of its jurisdiction; the irrelevance of Section 17(1) of the Supreme Court of Judicature Act as presented by Denny; and the inapplicability of the Genocide Act and Genocide Convention to the facts of the case.

Denny, through attorney Lalu Hanuman, had asked the court to make several declarations, including that Israel committed genocide, war crimes, and crimes against humanity in Gaza. He also called for the DPP to prosecute anyone in Barbados – resident or visitor – involved in such crimes, or, failing that, for the Immigration Department to deport any such individuals.

But Justice Wells said Denny’s pleadings contained no allegations of wrongdoing by government authorities.

“It is painfully manifest . . . that this statement of claim has absolutely no claim contained in it that documents, or which speaks to any actions or inactions of the applicants. In other words, there is absolutely no reason for these persons and this entity to be before the court on the basis of the statement of claim that has been filed in this matter,” the judge said, adding that the pleadings lacked even a “scintilla” of a dispute with the state authorities.

“What the court has gleaned is that this claim is really about a political agenda that the respondent seeks to effectuate by coming to the seat of the court. In my view, pursuing the applicants and putting them before the court in such a circumstance, where nothing is alleged, is a perfect waste of precious judicial time.”

Justice Wells went further to describe the case as an “absolute abuse of process”.

He admonished Denny and his organisation, saying they could not place themselves before the court “simply for moral or philosophical victories, when no actual dispute exists between itself and the parties.”

Justice Wells said that if the claim was allowed to proceed, it would have been “an extreme and manifest act of unfairness to the applicants and an abuse of the discretion of the court”.

“This is because it would cause the applicants to invest pointless time, energy, and all manner of resources to defend against the claim, when there is absolutely nothing to defend against,” the judge said.

In light of all the findings and conclusions, he made three orders: granting the application to strike out the amended claim and statement of claim; striking out the claim in its entirety; and that there be no order for costs.

Speaking to reporters outside the Supreme Court Complex, Denny acknowledged the defeat but said the case was never just about legal victory.

“For me, this is what this case is all about . . . — defending humanity, defending the people of Palestine against a wicked administration that has diplomatic relationships with Barbados. So, this case means more than just coming here looking to win or to lose,” he argued.

“What we are doing [is] we are demanding that the Government of Barbados give up all forms of diplomatic relationships with a government like Israel that is responsible for genocide. We are also asking for declarations that would allow us to take firm positions against people who are deeply involved in military action in Palestine.”

He suggested that his organisation had achieved its objective of making people in Barbados, the region and the world, more conscious of the situation in Palestine.

But Denny insisted that the struggle will continue at the highest level, pointing out that there are other ways of protesting and expressing solidarity, especially with the children of Palestine.

“We can express solidarity with international organisations that are convening meetings of solidarity with the Palestine people. We can also look at developing stronger ties with groups all over the world that are condemning what is happening in Palestine. So, for us, this is a very important struggle,” he emphasised.

Hanuman said he was disappointed at the outcome of the case, although not surprised.

“There has been lots of talk globally, regionally and locally here in Barbados by the government as to what’s happening in Gaza. But what’s really required is not talk. Talk ultimately is just hot air. We want action. This is why we initiated this case . . . to bring focus on what is happening in Gaza; and by bringing the case, we have succeeded in doing so,” the attorney told reporters.

He added that the declarations sought were not fanciful but aimed at holding the Barbados government to its international legal obligations.

Hanuman suggested that greater scrutiny at the island’s ports of entry could expose individuals involved in the Gaza conflict.

The State was represented by Solicitor General Anika Jackson, SC, and State Counsel Rico Yearwood.

emmanueljoseph@barbadostoday.bb