Daily archives: January 14, 2024

Your Man in the Hague (In a Good Way) Part 2 358

There was a very good feel at the end of the South African presentation on day one. Everyone felt it had gone extremely well, and left very little room for the court to wriggle away from provisional measures. We left the public gallery, and I went with Corbyn and Mélenchon to meet the South African delegation. This caused some concern to the security officials, who told us that members of the public had to leave immediately and not meet delegates or speak to the media, who were grouped outside the court but still within the precincts.

This was fairly impractical as the media very much wanted to speak with Corbyn and Mélenchon. There was a lot of flapping of arms and waving. All my friends of the queue had left, while I stayed sticking close to Jeremy, partly because I didn’t like to leave him unsupported, but mostly because his wife Laura was somewhere looking after my phone. The ICJ staff seemed scared to tell off Corbyn and Mélenchon, so kept getting pretty shirty with me as a proxy, saying we must leave.

It was quite strange. The situation was very friendly; there was no tension. There were about sixty delegates and about the same number of journalists, who were all supposed to be there. Then there were Corbyn, Mélenchon and me, who were apparently supposed to have left, but whose presence made no actual difference to events. People being in slightly the wrong place entirely peacefully after proceedings had finished, seemed to me an unnecessary source of anger. But a succession of female officials arrived, getting increasingly cross.

At this stage the South African delegation returned to their allocated office inside the building to finalise the formal press statement. We went with them. I was chatting to Amaar Hijazi, Palestine’s Deputy Foreign Minister, who I know a bit. One of the ICJ ladies came in with a clipboard, asked for silence, and then asked the assembled group in the manner of a public proclamation: “is this a legal meeting or a political meeting?”

Nobody seemed inclined to answer. So I replied “That’s rather a philosophical question. I am not sure if you can make that simple binary distinction”. Rather more usefully, Varsha [Gandikota-Nellutla of Progressive International] assured her it was a legal meeting, and the official said “good, political meetings off the premises”, waving her clipboard for no apparent reason. After a bit of a conflab we went out again.

I was enjoying Mélenchon enormously; he seemed to have unlimited stores of bonhomie and was unstoppably voluble with everyone. Whether the security guards wanted a lecture on workers’ cooperatives I am not sure, but they certainly got one.

We wandered back out the front door again and back into interviews. Two ladies came up to me looking very stern and said I must leave. Jeremy was giving an interview to Israeli TV and Mélenchon had bustled back into the building. One of the ladies said to me, “I am asking you to leave and you are refusing to do what I say”. I replied, “Oh no, certainly not. Of course I am doing what you say. Just very slowly”.

By now I had three enormous security officers with me, as I tried to keep an eye on Jeremy as he drifted through the milling journalists, while I kept running in to people I knew. I have to say the security people were very friendly, and seemed unsure why they were shadowing me too. Shortly a fourth turned up, a mountain of a man with a bald head and beard, who said, “Here you are; we’ve been looking for you everywhere”, which seemed strange. Possibly they couldn’t see me surrounded by their massive bouncers.

Laura had somehow got in, and gave me back my phone. Jeremy was slowly heading for the gates, but he is incapable of being impolite and not having a friendly word with anybody who addresses him, whoever they are. Once we were outside the gates he showed no sign of stopping with the much larger crowd outside, so I said my farewells and headed back to the hotel. My toes had gone very painful again and I was keen for another warm bath.

After the bath I went down to look for some food. I felt exhausted and drained. It was not just the cold night standing in the queue with no sleep, it was the immediately preceding 40 hour, four economy-flight journey from Bali, with virtually no sleep either, to get here. I hadn’t been in a bed, I calculated, for 85 hours.

I was also feeling a bit unappreciated. I had in fact played a role in this happening at all. Copies of my initial articles on invoking the Genocide Convention had been physically in front of South African cabinet ministers when they took the initial decision on 8 December to ask their excellent legal services to prepare a case. It was not me that arranged that and I cannot break confidence by telling you how it came about. I didn’t expect any acknowledgement, but it seemed an unfair twist of fate that had me standing all night in the cold trying to get in.

I was, dear reader, simply wallowing in exhaustion and self-pity, and in a kind of ridiculous teenage sulk. My tired brain was fogged and I was seriously worried about finding the energy to write up day one, which I had to do immediately. I wasn’t sure that my body was physically capable of another night of no sleep and standing in the freezing cold. I was fed up with being in exile over this laughable terrorism investigation, and I was missing my children.

I made up my mind – I could not do another night. I would have to explain to readers that I had done what I could. A great feeling of relief came over me, and I decided to go to bed.

That very second, out of the lift walked the eminent British lawyer Tayab Ali, with a short, unassuming bearded Arab gentleman.
“Hello Craig, how’s it going”, he asked, but they were evidently in a hurry, going somewhere: “This is Ghassan”.
We shook hands briefly and then the realisation struck me.
“Are you the surgeon?”
Ghassan looked diffident, slightly abashed.
“The surgeon from Gaza?”.
“Yes, I am Ghassan Abu SItta.”
“I am honoured, sir. Greatly honoured”.
He looked slightly embarrassed, and they dashed off to their meeting.

I felt even more embarrassed. I had just met the man who had stayed operating in Shifa hospital while Israel bombs and missiles struck it and Israeli snipers fired through the windows. He had continued to operate with no electricity, with no bandages, with no antiseptic, with no anaesthetic. He had worked 20 hours a day, amputating the limbs of children or trying to piece them back together. He stayed and stayed and stayed through weeks under fire. He did this for love: he is a top British plastic surgeon and could have been in the UK making millions.

I felt deeply ashamed. This man had endured so much, and done so much, and seen so much suffering. Here was I giving up over sore toes and lack of sleep, and over wanting to be important. I had an epiphany; I realised I can be a dreadful egoist, and I hated myself for it. Nothing stopped hurting, but I had a new surge of adrenaline and decided to get on with it. Perhaps nothing I did would help prevent genocide, but we all have to do that which is within our power to try.

I accept you may wish to scoff, but for me that encounter with Mr Abu Sitta revealed an important element of greatness – the ability to inspire others to do more that they believed they could, to transmit will. Even without actually saying anything.

I did, however, retain the sense to know that I had to prepare, so I got a taxi to a camping shop. There I bought the warmest sleeping bag I could afford, a reflective groundsheet, thermal socks and a flask.

I then took a taxi back, went straight to my room and started to write. The first three paragraphs flowed very easily. Then suddenly I was opening my very groggy eyes with my head on the keyboard, not sideways but leaning on my forehead. I had been asleep like that for three hours.

After that it was like wading through treacle. The phrases still rushed into my head as always, but there was a strange disconnect to my fingers and what they typed, which often was a phrase that sounded a bit like the one I was trying to get down. I recall typing “to assist them” as “his big cyst hen”. It was slow going.

At 11pm I went to see if there was a queue yet for the public gallery the next day. Nobody was there. I was worried that after the arguments at the gate the previous morning, with many people disappointed, the queue would start to form much earlier for Day 2. I decided to just publish what I had written so far, with an explanatory first paragraph, and check the queue regularly. The cold walk woke me up. It was notably warmer than the previous night – plus 2 rather than minus 5 – but the ground was all wet with a heavy dew and there was a lot more wind chill.

I checked again at 1.30am, still nobody had come. But at 3am there were eight people in the queue. I rushed back to the hotel, picked up my sleeping bag and groundsheet and published the now almost finished Day 1 article. I joined the queue as number 9 of the 14 who would be let in. I met a wonderful Dutch lady who had joined the queue with the intention of giving me her place if I arrived too late. I am ashamed to say I forget her name.

I was disappointed that not one of my new friends from the previous night’s queue was there again. I felt we had bonded through a pretty tough experience and a mutual cause. Almost all had said they intended to do both nights, and I presume the cold and exhaustion just got to people. This second night was much more jolly, I think because it was not quite so cold.

The reflective groundsheet was a big success, dry and surprisingly effective at stopping the cold seeping up. The mummy sleeping bag proved more of a problem. I am not as slender as I used to be, and with several layers of clothing and my ski jacket all on, it was a very tight fit. I got the zip up pretty well, but I couldn’t do the last bit that would bring the cowl over my head, not least because by that stage the bag had immobilised my arms.

Thankfully several wonderful young ladies came to help and zipped me up tight. This involved a lot of laughing. We could have invented a whole new genre of internet porn, in which fully clothed old men get zipped into bags. Although it probably already exists. I am not going to google for it, given the frequency with which the security services seize or steal my electronic devices. It might be misunderstood.

So at 3.30am I lay down my head, and did in fact sleep until about 5.30am. It was not comfortable, but it was not cold. I then wandered off to find a bush for a pee. When I returned, three women had taken over my groundsheet and were using my sleeping bag as a blanket. They joked that they had occupied my sleeping bag. I said I perfectly understood – surely their ancestors had a sleeping bag there 3,000 years ago. It was not brilliant repartee, but this kind of thing kept us going. The 14 of us who made the public gallery took group pictures.

There were some changes from the day before. We are to be allowed pens. But in view of “people wandering around” the day before, they said huffily, we were to be escorted in via a back door and leave the same way, and strictly forbidden from talking or interacting with anybody not in our group. So we entered the tiny public gallery. It has only two rows, and I now discovered that if you sit in the second row you cannot see anything. From the hall you can’t even tell there is a second row to the gallery. Once again, I marveled at the lack of attention to the dreadful design of the courtroom.

Luckily for me, a young man who apparently should not have been there was ejected from a front row seat, and finally I got to watch the Israeli presentation.

As with the South African case, according to court procedure the Israeli case was introduced by their “agent”, permanently accredited to the court, Tal Becker of the Israeli Ministry of Foreign Affairs. He opened with the standard formula “it is an honour to appear before you again on behalf of the state of Israel”, managing to imply purely through phrasing and tone of voice that the honour lay in representing Israel, not in appearing before the judges.

Becker opened by going straight to the Holocaust, saying that nobody knew more than Israel why the Genocide Convention existed. 6 million Jewish people had been killed. The Convention was not to be used to cover the normal brutality of war.

The South African case aimed at the delegitimisation of the state of Israel. On 7 October Hamas had committed massacre, mutilation, rape and abduction. 1,200 had been killed and 5,500 maimed. He related several hideous individual atrocity stories and played a recording he stated to be a Hamas fighter boasting on WhatsApp to his parents about committing mass murder, rape and mutilation.

The only genocide in this case was being committed against Israel. Hamas continued to attack Israel, and for the court to take provisional measures would be to deny Israel the right to self-defence. Provisional measures should rather be taken against South Africa and its attempt by legal means to further genocide by its relationship with Hamas. Gaza was not under occupation: Israel had left it with great potential to be a political and economic success. Instead Hamas had chosen to make it a terrorist base.

Hamas was embedded in the civilian population and therefore responsible for the civilian deaths. Hamas had tunnels under schools, hospitals, mosques and UN facilities and tunnel entrances within them. It commandeered medical vehicles for military use.

South Africa had talked of civilian buildings destroyed, but did not tell you they had been destroyed by Hamas booby traps and Hamas missile misfires.

The casualty figures South Africa gave were from Hamas sources and not reliable. They did not say how many were fighters? How many of the children were child soldiers? The application by South Africa was ill-founded and ill-motivated. It was a libel.

This certainly was a hardline and uncompromising start. The judges appeared to be paying very close attention when he opened with the 7 October self-defence argument, but very definitely some of them started to fidget and become uncomfortable when he talked of Hamas operating from ambulances and UN facilities. In short, he went too far and I believe he lost his audience at that point.

Next up was Professor Malcolm Shaw KC. Shaw is regarded as an authority on the procedure of international law and is editor of the standard tome on the subject. This is an interesting facet of the legal profession, where standard reference books on particular topics are regularly updated to include key extracts from recent judges, and passages added or amended to explain the impact of these judgments. Being an editor in this field provides a route to prominence for the plodding and pedantic.

I had come across Shaw in his capacity as a co-founder of the Centre for Human Rights at Essex University. I had given a couple of talks there some twenty years ago on the attacks on human rights of the “War on Terror” and my own whistleblower experience over torture and extraordinary rendition. For an alleged human rights expert, Shaw seemed extraordinarily prone to support the national security interests of the state over individual liberty.

I do not pretend I gave it a great deal of thought. I did not know at that time of Shaw’s commitment as an extreme Zionist and in particular his long term interest in suppressing the rights of the Palestinian people. After 139 states have recognised Palestine as a state, Shaw led for Israel the legal opposition to Palestine’s membership of international institutions, including the International Criminal Court. Shaw’s rather uninspired reliance on the Montevideo Convention of 1933 is hardly a legal tour de force, and it didn’t work.

Every criminal deserves a defence, and nobody should hold it against a barrister that they defend a murderer or rapist, as it is important that guilt or innocence is tested by a court. But I think it is fair to state that defence lawyers do not in general defend those accused of murder because they agree with murder and want a murderer to go on murdering. That however is the case here: Malcolm Shaw speaks for Israel because he actually wants Israel to be able to continue killing Palestinian women and children to improve the security of Israel, in his view.

That is the difference between this and other cases, including at the ICJ. Generally the lead lawyers would happily swap sides, if the other side had hired them first. But this is entirely different. Here the lawyers (with the possible exception of Staker) believe profoundly in the case they are supporting and would never appear for the other side. That is just one more way that this is such an extraordinary case, with so much drama and such vital consequences, not least for the future of international law.

For the reason I have just explained, Shaw’s role here is not that of a simple barrister plying his trade. His attempt to extend the killing should see him viewed as a pariah by decent people everywhere, for the rest of his doubtless highly-paid existence.

Shaw opened up by saying that the South African case continually spoke of context. They talked of the 75 years of the existence of the state of Israel. Why stop there? Why not go back to the Balfour Declaration or the British Mandate over Palestine? No, the context of these events was the massacre of 7 October, and Israel’s subsequent right of self-defence. He produced and read a long quote from mid-October by European Commission President Ursula von Der Leyen, stating that Israel had suffered a terrorist atrocity and had the right of self-defence.

The truth is that this is not genocide but armed conflict, which state has existed since 7 October. That was brutal, and urban warfare always involved terrible civilian casualties, but it was not genocide.

He then turned to the question of genocide. He argued that South Africa could not bring this case and the ICJ had no jurisdiction, because there was no dispute between Israel and South Africa on which the ICJ could rule, at the time the case was filed. South Africa had communicated its views to Israel, but Israel had given no substantial reply. Therefore a dispute did not yet exist at time of filing. A dispute must involve interaction between parties and the argument had been on one side only.

This very much interested the judges. As I noted on day one, this got them more active than anything else when Professor John Dugard addressed the same point for South Africa. As I reported:

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.

They were even more excited when Shaw tackled the same point. This gave them a way out! The case could be technically invalid, and then they would neither have to upset the major Western powers nor make fools of themselves by pretending that a genocide the whole world had seen was not happening. For a while, they looked visibly relieved.

Shaw should have given up while he was ahead, but he ploughed on for an hour, with some relief when he continually muddled his notes. A senior KC with zero ability to extemporise and recover was an interesting sight, as he kept stopping and shuffling paper.

Shaw argued that the bar for judging whether South Africa had a prima facie case must be significantly higher because of the high military and political cost to Israel if the court adopted provisional measures. It was also necessary to show genocidal intent even at this stage. Otherwise the genocide was a “car without an engine”. If any illegal actions had taken place within Israel’s carefully targeted military action, Israel’s own military courts would investigate and act on them.

Random Israeli ministers and officials making emotional statements was not important. Official policy to protect civilians would be found in the minutes of the Israeli war cabinet and national security council. Israel’s strenuous attempts to move civilians out of harm’s way was an accepted measure in international human law and should not be viewed as mass displacement.

It was South Africa which was guilty of complicity in genocide in cooperation with Hamas. South Africa’s allegations against Israel “verge on the outrageous”.

Israel’s next lawyer was a lady called Galit Raguan from the Israeli Ministry of Justice. She said the reality on the ground was that Israel had done everything possible to minimise civilian deaths and to aid humanitarian relief. Urban warfare always resulted in civilian deaths. It was Hamas who were responsible for destruction of buildings and infrastructure.

There was overwhelming evidence of Hamas’ military use of hospitals. In every single hospital in Gaza that IDF had evidence of military use by Hamas. Mass evacuation of civilians was a humanitarian and legal measure. Israel had supplied food, water and medicine into Gaza but supplies had come under Hamas fire. Hamas steals the aid for its fighters.

Next up was lawyer Omri Sender. He stated that more food trucks per day now entered Gaza than before October 7. The number had increased from 70 food trucks to 109 food trucks per day. Fuel, gas and electricity were all being supplied and Israel had repaired the sewage systems.

At this stage Israel had again lost the judges. One or two were looking at this man in a highly quizzical manner. A couple had definitely fallen asleep – there are only so many lies you can absorb, I suppose. Nobody was making notes about this guff. The judges may find a way not to condemn Israel, but could not be expected to go along with this extraordinary nonsense. Sender continued that the scope and intensity of the fighting was now decreasing as the operation entered a new phase.

Perhaps noting that nobody believed him, Sender stated that the court could not institute provisional measures but rather was obliged to accept the word of Israel on its good intentions because of the Law of the Unilateral Declarations of States.

Now I have to confess that was a bit of international law I did not know existed. But it does, specifically in relation to ICJ proceedings. On first reading, it makes a unilateral declaration of intent to the ICJ binding on the state that makes it. I cannot see that it forces the ICJ to accept it as sufficient or to believe in its sincerity. It seems rather a reach, and I wondered if Israel was running out of things to say.

That appeared to be true, because the next speaker, Christopher Staker KC, now took the floor and just ran through all the same Hamas stuff yet again, only with added theatrical indignation. Staker is the lawyer I suspect would happily have appeared for either side, because he was plainly just acting anyway. And not very well.

Staker said that it was astounding this case could be brought. It was intended to stop Israel from defending itself while Israel would still be subject to Hamas attacks. Hamas has said it will continue attacks.

If you look at the operation as a whole including relief efforts, it was plain there was no genocidal intent. Israel was in incredible danger. The proposed provisional measures were out of proportion to their effect. Can you imagine if in the Second World War, a court had ordered the Allies to stop fighting because of civilian deaths, and allowed the Axis powers to keep on killing?

The final speaker was Gilad Noam, Israel’s deputy attorney-general. He said that the bulk of the proposed provisional measures should be refused because they exposed Israel to further Hamas attack. Three more should be refused because they referred to Palestine outside Gaza. There was no genocidal intent in Israel. Ministerial and official statements made in the heat of the moment were rather examples of the tradition of democracy and freedom of speech. Prosecutions for incitement to genocide were under consideration.

The court must not conflate genocide and self-defence. The South African case devalues genocide and encourages terrorism. The Holocaust illustrated why Israel was always under existential threat. It was Hamas who were committing genocide.

And that was it. Israel had in the end not been allowed to show its contentious atrocity video, and it felt like their presentation had become repetitive and was padded to fill the time.

It is important to realise this. Israel is hoping to win on their procedural points about existence of dispute, unilateral assurances and jurisdiction. The obvious nonsense they spoke about the damage to homes and infrastructure being caused by Hamas, trucks entering Gaza and casualty figures, was not serious. They did not expect the judges to believe any of this. The procedural points were for the court. The rest was mass propaganda for the media.

In the UK, the BBC and Sky both ran almost all the Israeli case live, having not run any of the South African case live. I believe something similar was true in the USA, Australia and Germany too.

While the court was in session, Germany has announced it will intervene in the substantial case to support Israel. They argue explicitly that, as the world’s greatest perpetrator of genocide, they are uniquely placed to judge. It is in effect a copyright claim. They are protecting Germany’s intellectual property in the art of genocide. Perhaps they might in future license genocide, or allow Israel to continue genocide on a franchise basis.

I am sure the judges want to get out of this and they may go for the procedural points. But there is a real problem with Israel’s “no dispute” argument. If accepted, it would mean that a country committing genocide can simply not reply to a challenge, and then legal action will not be possible because no reply means “no dispute”. I hope that absurdity is obvious to the judges. But they may of course wish not to notice it…

What do I think will happen? Some sort of “compromise”. The judges will issue provisional measures different to South Africa’s request, asking Israel to continue to take measures to protect the civilian population, or some such guff. Doubtless the State Department have drafted something like this for President of the court Donoghoe already.

I hope I am wrong. I would hate to give up on international law. One thing I do know for certain. These two days in the Hague were absolutely crucial for deciding if there is any meaning left in notions of international law and human rights. I still believe action by the court could cause the US and UK to back off and provide some measure of relief. For now, let us all pray or wish, each in our way, for the children of Gaza.



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