At 1pm on 26 January the ICJ’s team of judges entered the courtroom and took their seats. The atmosphere on the street outside was extremely tense. People were nervous. The crowd drew a deep breath and fell silent. For the next 40 minutes we hung onto every single word. At times we hung on to each other.
ICJ President, Judge Donoghue, opened by noting that the Court was ‘acutely aware of the extent of the human tragedy that is unfolding ... and is deeply concerned about the continuing loss of life and human suffering’. The tension eased slightly. The suffering of the Palestinian people had been seen by the court.
President Donoghue continued reading. We concentrated hard to understand what the legal jargon meant in plain English. Ten minutes into the proceedings the Court announced that South Africa’s case was ‘sufficient at this stage to establish prima facie the existence of a dispute between the Parties’. We cheered and chanted before focusing and falling silent again.
The Court then considered whether the dispute fell within the provisions of the 1948 Genocide Convention. We drew our breaths, the tension rose. After a long passage the President finally declared that ‘at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention’. We erupted in emotional applause and an outpouring of relief.
Silence again. The President continued. South Africa had standing. More applause, nervous excitement – three wins for South Africa, none for Israel.
President Donoghue dealt with the substance of the Genocide Convention. After an extended passage on scope and application, the Court declared that ‘Palestinians in the Gaza Strip form a substantial part of the protected group’ and that ‘the military operation being conducted by Israel ... has resulted in a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure.’ The President then read statements from UN officials detailing the extent of the horror in Gaza, as well as statements by Israeli political and military leaders submitted by South Africa as evidence of genocidal intent, declaring that ‘the facts and circumstances ... are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible’. This was significant: Israel was on trial for genocide. Cheering, applause, emotional outbursts, hugging, chanting, tears.
The President continued. The crowd fell silent. The Court established that ‘there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible’. Relief, applause, silence. The President began reading the order, which creates legal obligations and is binding. You could cut the tension with a knife.
Israel must:
- take all measures within its power to prevent genocide,
- ensure with immediate effect that its military forces do not commit genocide,
- take all measures within its power to prevent and punish the direct and public incitement to commit genocide,
- take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza,
- take effective measures to prevent the destruction and ensure the preservation of evidence
- submit a report to the Court on all measures taken
No ceasefire? The question ran through the crowd. The live stream had stalled a few times, maybe we had missed it? People became uneasy, frustrated, confused. Submit a report? No withdrawal of troops? The President read the provisional measures, six in total, with a significant majority (15 and at times 16 in favour), an almost unanimous vote. Who was Judge Sebutinde? It was all over. Israel was on trial for genocide, but there was no order for a ceasefire. Anger. Smoke flares were lit. We erupted in a call from the bottom of our bellies for a ‘ceasefire NOW’, the hairs stood on the backs of our necks, incredulous that the court had not called for one despite recognising that the suffering of the people of Gaza plausibly met the threshold for genocide. Ceasefire NOW, Ceasefire NOW. Ceasefire NOW. We shouted and shouted as though our lives depended on it. They didn’t, but the lives of the 2.3 million people in Gaza did.