Above photo: ICJ judges in the face of the Israeli defense. UN TV Screenshot.
The former British diplomat gives his personal account of being inside the courtroom for Israel’s defense on Friday.
As with the South African case, according to court procedure the Israeli case was introduced on Friday 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. Six 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, he said. On Oct. 7 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 U.N. 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 Oct. 7 self-defence argument, but very definitely some of them started to fidget and become uncomfortable when he talked of Hamas operating from ambulances and U.N. 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 Christopher Straker KC, an other attorney who represented Israel on Friday) 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 Oct. 7, 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 Oct. 7, he said. 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 the 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 Oct. 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 Straker, now took the floor and just ran through all the same Hamas stuff yet again, only with added theatrical indignation. Straker is the lawyer I suspect would happily have appeared for either side, because he was plainly just acting anyway. And not very well.
Straker 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 U.K., 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 the president of the court, the American Joan Donoghue 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 U.S. and U.K. 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.