Your Man in the Hague (in a Good Way).

Former Ambassador, Human Rights Activist

[This article is not yet finished. It is about half written and needs editing and polishing and proof reading. But I know people are waiting for it, while I need to keep going down to the court to see if I have to join the overnight queue yet for tomorrow’s hearing or risk not getting in. So I am going to regularly publish what is written so far to give something to go on, while I go check at intervals. It is very possible I won’t finish today’s proceedings before having to go queue for tomorrow. This message will vanish once the article is complete.]

I attended the hearing today of South Africa’s case against Israel for genocide at the International Court of Justice. I was able to sit in the public gallery and watch all the proceedings. I was however handicapped in reporting by the fact that we were not allowed pens or pencils (though we were allowed paper). I asked the Head of Security at the ICJ why pens were not allowed in the public gallery. He told me, with a perfectly straight face, that they could be used as a weapon. So bereft of my deadly ballpoint, this account is less detailed and more impressionistic than I would wish to give you.

I had arrived at the Hague early Wednesday morning on 10 January, having flown in from Indonesia. This had involved four flights, to Singapore, Milan, Copenhagen and finally Schiphol. Wednesday was spent in a frantic search of the charity shops of the Hague for warm clothing as I had only beach clothes with me apart from a friends’ old ski jacket. I called first at the ICJ to get information on how to attend Thursday morning’s session.

A young lady informed me that I had to queue outside the small arched gate in the wall. It would open at 6am and the first 15 members of the public would be admitted to the gallery. I asked where I should queue exactly. She said she doubted it was necessary, it should be fine to arrive at 6am on Thursday.re

I am staying in a hotel just five minutes walk away, so at 10pm on Wednesady evening, with the temperature already at -4 C, I went to check if a queue had formed. Nobody was there. I returned to the hotel, but every hour went to check for a queue I should join. Nobody was there at midnight or 1am, but at 2am there were already 8 people, sat around in three very cold little groups. Everybody looked extremely cold, but everybody was friendly and talkative.

The first group, right next to the gate, consisted of three young Dutch women, who sat on a blanket and were well provided with flasks of hot coffee and boxes of baklava. The second group were three young students of international law, all of them Arabs, who had attended other cases and knew the ropes here. The third group were two young Arab women, one Dutch and one Arab, sitting on a bench, looking cold and miserable.

We were soon all talking together and it was plain that every one of us was motivated by support for the Palestinians in their struggle against the relentless occupation. SHortly after another Arab gentleman arrived, older and authoritative, who rather incongruosuly had been schooled at Scotland in Gordonstoun. A tall Tunisian man get walking back and forth making phone calls, he appeared pre-occupied and rather shy.

We had all been given similar information about the number of people who would be admitted, though some had been told 15, some 14 and some 13. Our numbers were stable at 12 for several hours. Then about 4.30am a car drew up and out jumped Varsha Gandikota-Nellutla of Progressive International. SHe had come as a place-keeper for Jeremy Corbyn and Jean-Luc Melenchon. Others of her organisation arrived bit by bit. Then as 6am approached, there started a small flood of people arriving, many with Palestinian flags and wearing keffiyehs.

It really was seriously cold. After four hours my toes had gone from very painful to having no feeling, and my fingers were becoming unresponsive. As so often, from 5am the cold grew more and more invasive. Melenchon and Corbyn had arrived at 5.30am to take their places in the queue, Melenchon as voluble as ever, wide awake, delighted to meet eveybody, and lecturing on economics and the organisation of society to anybody who would listen. As my brain had by now frozen, that did not really include me. Jeasremy was equally typically Jeremy, concerned that he did not want to take anybody’s position in the queue.

Then as preparations to open the gate began on the other side, things took an unpleasant turn. Those of us who had been there all night knew our order of arrival, but we began to be swamped by latecomers pushing past and around us to get to the gate. I had to be assertive and try to marshal the queue. Activists in the crowd challenged this, suggesting that the criterion for entry should not be time of arrival, but that Palestinians should be given the places. One of the Dutch girls, the very first to arrive, accepted this and gave up her place.

It all became distressing. One Palestinian lady from Sweden who was just behing 14th in the queue became deeply distressed at the idea of not being admitted, and a couple of Palestinian gentlemen who had arrived after 6am started to determinedly push past the queue. I made a little counter speech explaining that we were all here to help the Palestinians, but none of us knew each other’s stories, and the question of what use someone’s attendance would be to the Palestinian cause was as important as gratifying individual feelings of the terrible aggrieved.

The diffident Tunisian was replaced in the queue by the former Tunisian President whose place he had been keeping – a really pleasant and diffident man, but the timing did not help the situation. In the end we were admitted in groups of five and processed. One of the Dutch ladies who had been the very first to arrive gave up her place to a Palestinian. I left clutching my pass, number 9, and returned to the hotel and straight into a hot bath. The pain from my toes and fingers as they thawed was really unpleasant.

Then it was quickly back for 9am and a lot of excessive security hassle and removal of deadly wallets and pens. Then we were excorted into the public gallery.

The Palace of Peace was built by Andrew Carnegie, the extraordinarily morally complex Fifer, a vicious and incredibly successful capitalist monopolist who also wished to end all war and to improve the lives of the poor everywhere. It’s fairytale appearance, with its folly of a tower perched on a tower, belies its steel frame and concrete construction, and inside it could be any grand City Chambers in Scotland, with majollican tiling and solid armitage shanks in the toilets. Extraordinarily, the building is still owned and managed by the Carnegie Foundation.

For a building that was built as a world court, strangely it does not appear to contain a court room. The Grand Chamber is hust a large empty hall, taking up one side wing of the building. A comparatively modern, simple and gently curved dais has been inserted across the length of the hall which held a long table and seventeen chairs for the judges, but the structure looked temporary, as if it gets taken away and the building used for weddings. The parties to the case were seated on simple stacking chairs arranged in the body of the hall beneath the dais, again looking more like a wedding than a court. ABove the judges spread a mighty stained glass window, of garish colours and rather dubious quality.

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 Isreali lie of the case before it even started.

The nomination of Aharon Barak as the Israeli judge on the International Court of Justice is extraordinary, given that as President of Israel’s Supreme Court he refused to implement the ICJ judgment on the illegality of the wall, stating that he knew the facts of the matter better than the ICJ.

Barak has an extremely long histoy 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 sturggle 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, he 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.

The President of the court, Joan Donoghue, is a US State Department, Clinton hack who has never formed an original idea in her life and I should be astonished if she starts now. I half expected her strings to actually be visible, emerging from holes in the hall’s magnificent deep relief panelled wooden ceiling. But others are more puzzling.

There has been no more rabidly anti-Palestinian national elite than that of Germany. Rather than channel feelings of inherited guilt into opposition to genocide in general, they seem to have concluded that they need to promote alternative genocides to make amends. Added to which, the German judge on the ICJ, Nolte, does not come preceded by a liberal reputation. But friends in Munich tell me that Nolte has a particular interest in the law of armed conflict, and is a stickler for intellectual rigour. Their view is that his professional self esteem and intellectual rigour will be the key factors and that only points one way with regard to what the Israeli Defence Force has done so blatantly to the civilian population in Gaza.

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 now, the UN General Assembly may have shot itself in the foot in replacing that particular British judge with the Indian, viewed at the time as a triumph for the developing world in the UN. 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.

Not only is the Great Hall of Justice not fitted out as a courtroom, for a World Court the public gallery is miniscule. Running along one side of the hall, high enough to kill you if you fell over the balcony edge, it is just two seats deep. Furthermore the fitted theatre style seats are a hundred years old and in a state of near collapse. Your arse is eight inches off the ground and the seats now tilt so your thighs are four inches off the ground and the whole contraption is throwing you forward and over the edge. Rather than fix the seats, the Carbegie Foundation have fixed a strong cable from wall to wall above the balcony rail, acting in effect as a second balcony rail giving six inches more protection.

With one third of the public gallery screened off to house the audio visual projection and webcasting facility, there were just 24 available seats in the public gallery. There were us 14 from the queue and the rest were for representatives of key NGOs and UN organisations, such as Human Rights Watch and the World Health Organisation. They were allowed pens, obviously being judged respectable enough not to kill anybody with them. I may in fact have acquired a pen from one of them at some stage, purely of course to assist them. Or I may not – it is very difficult to know what counts as terrorism these days.

South Africa opened with statements from their Ambassador and their Minister of Justice, 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.

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