The International Court of Justice chambers
I have written of my faith in the International Court of Justice, in its history of impartial judgment and in its system of election by the UN General Assembly. The ICJ has rather unfairly been tarnished by the reputation of its much younger sister the International Criminal Court. The ICC is rightly derided as a Western tool, but that really is not true of the ICJ. On Palestine alone, it has ruled that the Israeli "wall" in the West Bank is illegal and that Israel has no right of self-defence in the territory of which it is the occupying power. It ruled that the UK must decolonise the Chagos Islands, a cause close to my own heart.
There was every reason for those of us opposing the genocide to have travelled hopefully to the Hague.
In addition to the normal fifteen judges of the court, each of the parties to the dispute - South Africa and Israel - had exercised their right to nominate an additional judge. After the judges filed in to the court, proceedings started with these two judges taking an oath of impartiality, which gave us the first Israeli lie of the case before it had even started.
© Yonatan Sindel/Flash90Former Israeli Supreme Court president Aharon Barak in Jerusalem, December 8, 2019.
Barak has an extremely long history of accepting all forms of repression of Palestinians by the Israeli Defence Force as legal for "national security", and in particular has repeatedly refused to rule against the longstanding Israeli programme of demolitions of Palestinian homes as collective punishment. That reads across directly to the destruction of civilian infrastructure in Gaza now.
Barak is viewed as a "liberal" in Israel in the constitutional struggle between the judiciary and executive. But that is about the ability of Netanyahu's corruption to go unchallenged, not about Palestinian rights. By appointing his apparent opponent Barak to the ICJ, Netanyahu has exhibited typical cunning. If Barak rules against Israel, Netanyahu can claim his domestic opponents are traitors to national security. If Barak rules in favour of Israel, Netanyahu can claim Israeli liberals support the destruction of Gaza.
I expect it is the latter claim we shall be seeing.
I was seated in the public gallery, and watching the seventeen judges occupied much of my time throughout the hearing. Acres have been written about which way who will jump. There is a too-easy assumption they will be swayed by their domestic governments. That varies from judge to judge.
Joan Donoghue, US State Department
© ICJJudge Georg Nolte, Germany
On the other hand, there is a Ugandan judge on the ICJ who you might assume would align with South Africa. But Uganda, for reasons which frankly I do not fathom, joined the United States and Israel in opposing Palestine's membership of the International Criminal Court, on the grounds Palestine is not a real state. Similarly India you might expect to support South Africa as a key member of BRICS. But India also has a Hindu Nationalist government prone to hideous Islamophobia. I haven't found any evidence of Judge Bhandari's domestic record on inter-communal issues.
But it has been suggested to me that in this case before the World Court now, the UN General Assembly may have shot itself in the foot in replacing a particular British judge with the Indian, an election viewed at the time as a triumph in the UN for the developing world. My point is this: that these questions are very complicated, and much of the analysis I have seen, including from some dear colleagues, has been simplistic mince.
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South Africa opened with statements from their Ambassador and their Minister of Justice Ronald Lamola, and they opened with a bang. I rather expected South Africa to start with some soft soap about how much they had condemned Hamas and sympathised with Israel over 7 October, but no. Within the first thirty seconds South Africa had launched both the word "Nakba" and the phrase "apartheid state" at Israel. We had to hang on to our collapsing seats. This was going to be something.
Minister of Justice Lamola came out with the first memorable phrase of the case. Palestinians had suffered "75 years of apartheid, 56 years of occupation, 13 years of blockade". It was very well done. Before handing over to the legal team, the "agents" of the South African state, in terms of the Court's statute, were framing the argument. This injustice, and history itself, did not start on October 7.
There was a second important point of framing. South Africa stressed that in order for the request for "provisional measures" to be granted, it did not need at this stage to be proven that Israel was committing genocide. It only had to be shown that actions of Israel were prima facie capable of falling as genocide within the terms of the Genocide Convention.
Dr. Adila Hassim
On a), killing of Palestinians, she outlined the simple facts without embellishment. 23,200 Palestinians were killed, 70% of them women and children. Over 7,000 were missing presumed dead under the rubble. Over 200 times, Israel had dropped 2,000lb bombs into the very residential areas in southern Gaza into which Palestinians had been ordered to evacuate.
60,000 people were seriously wounded. 355,000 homes had been damaged or destroyed. What could be observed was a substantial pattern of conduct indicating a genocidal intent.
Dr Hassim was notably calm and measured in her words and delivery. But on occasion when detailing atrocities, particularly against children, her voice trembled a little with emotion. The judges, who were generally fidgety (on which much more to follow), looked up and paid closer attention at that.
© ICJTembeka Ngcukaitobi
What Ngcukaitobi did particularly well was emphasise the effective transmission of these genocidal ideas from senior government to the troops on the ground, who quoted the same phrases and genocidal ideas in filming themselves committing and justifying atrocities. He emphasises that the Israeli government had ignored its obligation to prevent and act against incitement to genocide in both official and popular culture.
He concentrated particularly on Netanyahu's invocation of the fate of Amalek and the demonstrable effect of that move on the opinions and actions of Israeli soldiers. Israeli ministers, he said, could not now deny the genocidal intent of their plain words. If they did not mean it, they should not have said it.
© SAB News/youTubeProfessor John Dugard
Dugard quoted Article VIII of the Genocide Convention and read out in full Paragraph 431 of the court's judgment in Bosnia vs Serbia,
This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences ; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State's obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.I must confess I was very gratified. Dugard's argument was precisely the same, and quoted the exact same passages and paragraphs, as my article of 7 December explaining why the Genocide Convention should be invoked.
The judges particularly enjoyed Dugard's points, enthusiastically rustling through documents and underlining things. Dealing with thousands of dead children was a bit difficult for them, but give them a nice jurisdictional point and they were in their element.
© Brenda Masilela/ANAProfessor Max du Plessis
Palestinians had suffered 50 years of oppression, and Israel had for decades considered itself above and beyond the reach of the law, ignoring both ICJ judgments and security council resolutions. That context is important. Palestinian individuals have rights to exist protected as members of a group in terms of the Genocide Convention.
South Africa's case was founded on respect for international law and was based on law and on fact. They had taken the decision not to show the court atrocity videos and photos, of which there were many thousands. Their case was of law and fact, they did not need to introduce shock and emotion and turn the court into a theatre.
This was a shrewd blow by Du Plessis. The hearings were originally scheduled for two hours each side. The South Africans had been told, very late, that was increased to three because the Israelis insist on showing their hour long October 7 atrocity video. But in fact the court's guidelines reflect a longstanding resistance to this sort of material which must be used "sparsely". If 23,000 people are dead it does not add intellectual force to show the bodies, and the same is true of the 1,000 dead from 7 October.
Du Plessis concluded that the destruction of Palestine's infrastructure that supports human life, the displacement of 85% of residents into ever smaller areas where they were still bombed - all were plain examples of genocidal intent.
But undoubtedly the highlight of the entire morning was the astonishing presentation by Irish KC Blinne Ni Ghràlaigh. Her job was to demonstrate that if the Court did not order "provisional measures", then irreparable damage would be done.
There are times when a writer must admit defeat. I cannot adequately convey to you the impression she made in that courtroom. Like the rest of the team she eschewed atrocity porn and set out the simple facts plainly but elegantly. She adopted the ploy used by all the South African team, of not using emotional language herself but quoting at length deeply emotional language from senior UN officials. Her outline of daily deaths by type was devastating.
I simply urge you to listen to her. "Each day over ten Palestinians will have one or more limbs amputated, many without anaesthetic ..."
I should write more now about the court. The South African delegation sat beside their lawyers on the right of the court, the Israeli delegation on their left, each of about 40 people. The South Africans were colourful with South African flag scarves and keffiyehs draped over shoulders. There was a mixture of South Africans and Palestinians, with Deputy Foreign Minister of the Palestinian Authority Amaar Hijazi prominent, which I was glad to see.
The South African delegation was buoyant and mutually supporting, with a lot of inclusive body language and comparative animation. The Israeli delegation was the opposite of animated. It appeared severe and disdainful - it was as though the members were all under instruction to get on with some work and not particularly notice the proceedings were happening at all. They were generally youthful, and I think cocksure would be a fair description. When Blinne was speaking they seemed particularly keen to ensure everyone could see they were not listening.
You would not think from the body language it was Israel that stands accused. In fact the only people in the court whose demeanour was particularly dodgy and guilty were the judges. They absolutely looked like they really did not want to be there. They seemed deeply uncomfortable, fidgeted and fumbled papers a lot, and seldom looked directly at the lawyers speaking.
It occurred to me that the people who really did not want to be in the Court at all were the judges, because it is in fact the judges and the Court itself on trial. The fact of genocide is incontrovertible and had been plainly set out. But several of the judges are desperate to find a way to please the USA and Israel and avoid countering the current Zionist narrative, the adoption of which is necessary to keep your feet comfortably under the table of the elite.
What counts more for them, personal comfort, the urgings of NATO, future wealthy sinecures? Are they prepared to ditch any real notion of international law for those things?
That is the real question before the court. The International Court of Justice is on trial.
During Blinne's talk, the President of the court suddenly took an intense interest in her startling red iPad, the colour of a particularly bright nail varnish. This came out several times during the hearing, and I could never put these iPad appearances together with what had just been discussed - it was not that cases or documents had just been cited to look up, for example.
The final speaker for the South African legal team was Vaughn Lowe, and he had the delicate task of countering Israel's defence, which they have kept secret from the court until it is made. Countering arguments you have not seen yet is a tricky proposition, and for me this was the legal tour de force of the entire morning. Vaughn Lowe's performance was outstanding.
He started by asserting that South Africa did have standing to bring the case, repeating Durand's points about the duty of states to act to prevent genocide under the Genocide Convention. He said there was a dispute in the terms of the Convention, over whether or not genocide had occurred. South Africa had framed this dispute in a series of Diplomatic Notes Verbale sent to the Israeli government and not satisfactorily replied to.
Lowe said it was acknowledged that a series of individual incidents were being investigated by the International Criminal Court as war crimes, but the existence of other crimes did not preclude their being part of a wider genocide. Genocide was a crime which by its nature tends to come along with other war crimes committed in furtherance of the Genocide.
Finally Lowe said that genocide is never justified. It is absolute, a crime in itself. No matter how appalling the atrocities committed by Hamas against Israel or Israeli citizens, a genocidal response was not appropriate and never could be.
Vaughn Lowe stated that South Africa asked for action against Israel and not against Hamas, simply because Hamas was not a state and thus not subject to the jurisdiction of the court. But the fact that the court could not act against Hamas must not prevent it from acting against Israel to prevent the current urgent danger of genocide. Nor must the court be swayed by Israeli offers of voluntary restraint. Israel's failure to acknowledge any wrongdoing whatsoever in its actions in "grinding Gaza into the dust" showed Israel could not be trusted in any assurances to adjust behaviour, as it believed it had done no wrong.
The session ended with the South African Ambassador reiterating the provisional measures South Africa now wished the court to impose. These are:
(1) The State of Israel shall immediately suspend its military operations in and against Gaza.With that, we closed the argument. Next, Israel responds.
(2) The State of Israel shall ensure that any military or irregular armed units which may be directed, supported or influenced by it, as well as any organisations and persons which may be subject to its control, direction or influence, take no steps in furtherance of the military operations referred to point (1) above.
(3) The Republic of South Africa and the State of Israel shall each, in accordance with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the Palestinian people, take all reasonable measures within their power to prevent genocide.
(4) 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 Palestinian people as group protected by the Convention on the Prevention and Punishment of the Crime of Genocide, desist from the commission of any and all acts within the scope of Article II of the Convention, in particular:(a) killing members of the group;(5) The State of Israel shall, pursuant to point (4)(c) above, in relation to Palestinians, desist from, and take all measures within its power including the rescinding of relevant orders, of restrictions and/or of prohibitions to prevent:
(b) causing serious bodily or mental harm to the 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.(a) the expulsion and forced displacement from their homes;(6) The State of Israel shall, in relation to Palestinians, ensure that its military, as well as any irregular armed units or individuals which may be directed, supported or otherwise influenced by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in (4) and (5) above, or engage in direct and public incitement to commit genocide, conspiracy to commit genocide, attempt to commit genocide, or complicity in genocide, and insofar as they do engage therein, that steps are taken towards their punishment pursuant to Articles I, II, III and IV of the Convention on the Prevention and Punishment of the Crime of Genocide.
(b) the deprivation of:
(i) access to adequate food and water;
(ii) access to humanitarian assistance, including access to adequate fuel, shelter, clothes, hygiene and sanitation;
(iii) medical supplies and assistance; and
(c) the destruction of Palestinian life in Gaza.
(7) The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; to that end, the State of Israel shall not act to deny or otherwise restrict access by fact-finding missions, international mandates and other bodies to Gaza to assist in ensuring the preservation and retention of said evidence.
(8) The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one week, as from the date of this Order, and thereafter at such regular intervals as the Court shall order, until a final decision on the case is rendered by the Court.
(9) The State of Israel shall refrain from any action and shall ensure that no action is taken which might aggravate or extend the dispute before the Court or make it more difficult to resolve it.
Israel would not do such a thing because...........holocaust.
Hamas deserve it.
They're all Hamas.
You are using Hamas casualty figures.
Hamas tell lies.
We are using precision bombs.
Hamas are really bad (stopped just short of "Hamas are Amalek)
The thing about bombs is you can't be precise.
Other people do it, why can't we?
Hamas are holocausting us.
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