As both parties claim vindication following the ICJ ruling – less known are the important efforts of French human rights lawyer François Zimeray who filed motions at the International Criminal Court on November 3, 2023, naming the October 7 atrocities by Hamas as genocide. Listening to the families’ accounts, Zimeray recognised almost immediately that the violence described already meets the legal definition of genocide and is fairly certain it will hold up under legal scrutiny leading him to file at the ICC.

Zimeray has also filed a motion at the ICC calling for issuing an international arrest warrant for the Hamas leadership, observing that the ICC was fairly expeditious in issuing such a warrant for Vladimir Putin shortly after the Russian war on Ukraine. Almost three months since he filed the motion, the arrest warrant is yet to be issued and Hamas leaders roam free.

Former Ambassador of Human Rights for France, and later Ambassador for France to Denmark (where he survived a shooting by ISIS in the Copenhagen attacks on Valentine’s Day 2015 as he attended the Art, Blasphemy, and Freedom of Expression debate in light of the Danish cartoon), Zimeray is representing Israeli tech entrepreneur Eyal Waldman and eight other Israeli families whose relatives – eleven victims in total – have been murdered by Hamas.

On November 17, 2023, Zimeray, acting pro bono, brought these families to the Hague, furnishing testimony to ICC Chief Prosecutor Karim Khan (himself a Muslim who has in the past gathered evidence including in Iraq and prosecuted ISIS for their crimes). The Chief Prosecutor listened, deeply affected, asking incisive questions as the surviving families testified of their horrors.

For now, the ICC is in the process of gathering evidence and testimony which Zimeray has begun to collate. (I contacted Zimeray to offer the evidence I was able to bear witness to in the first few weeks after October 7 and since then we have been in regular contact.)

As we discussed the ICJ ruling, Zimeray noted to me that the Court’s grave concern at the fate of the hostages – calling in the final paragraph of the decision for their immediate and unconditional release – was ‘all the more remarkable’ given that the Court referred to them ‘proprio motu’ (one its own initiative) even though their circumstances were beyond the scope of the dispute brought to the ICJ by South Africa.

Three months since the diabolical October 7, the genocidal assault continues in the ongoing forced disappearance, kidnapping, separation of child from parent, husband from wife, hostage-taking, degradation, and ongoing torture and abuse of the hostages. Some fear some of the female hostages may have been impregnated by their captors. Yet not a single perpetrator, Hamas operative, or Hamas commander has been prosecuted and Hamas missiles continue to target indiscriminately massive swathes of the Israeli population. Every day the 136 remaining hostages (27 of whom are feared dead) remain captive is another genocidal assault on Israel.

Almost eighty years after the Allies liberated the camps and began the documentation of what has come to be known as the Holocaust, and nearly ten years since I first visited Auschwitz, I found myself deeply appalled as I travelled to Southern Israel as an American, as a Muslim woman, and as a practising physician to witness places of the October 7 Islamist atrocities.

I walked where congealed blood remained spilled, soaked, and spattered as I picked my way through violated homes; I stepped over welcome mats soaked in human blood; I navigated ruins smelling of human remains – limbs, charred remains, and other body parts were still being identified; I watched and listened as survivors returned to their homes to assess the devastation, reliving their terrifying memories of surviving genocide which they testified to me on film.

At Israel’s National Forensic Center, on human bodies I examined the horrifying marks of Hamas’ deliberate, systematic, mass genocidal hate: bones and teeth denuded by incineration; cadavers simultaneously peppered with bullet holes; multiple penetrating knife stab wounds; macerated limbs crushed under vehicles; bodies restrained with zip ties or electrical cord before incineration often with family members; parents with children, husbands with wives, grandparents with grandchildren; even incineration with the family dog…

Sergeant Natah Katz of the IDF rabbinical unit escorted me at the Al-Shura Base where he carried body bags containing human remains crumbling in his fingers as he placed the charcoal remains gently on the water-cooled high-resolution CT scanner for imaging. He struggled to understand a strange patch of hair emerging in the upper abdomen of another cadaver before realising it was on top of the decapitated head of the same body brutally crushed into the abdomen by massive force after decapitation.

And this month in Davos, I looked into the rimmed eyes of Eyal Waldman and listened to his grief-stricken wisdom at the Hotel Seehoff as we spoke of the crushing loss of his daughter and future son-in-law murdered by Hamas as they fled the Reim Parking field where I had walked through the strewn aftermath of a genocidal massacre laid bare. I could only stare at the desecration as the Eucalyptus trees whispered their kaddish, davening in the breeze.

Waldman’s anguish was exceptionally commanding. As I left our meeting, I understood the hostages must become the priority. He labours for their release day and night. The level of suffering both hostages and survivors face intolerably continues to magnify. The need to hold Hamas to account is reaching a new level of urgency. Hamas’s recalcitrance is driving the conflict, costing lives on both sides, and inflicting untold psychological injury on generations.

While Israel has been the overwhelming focus of international scrutiny, international criticism and already referred to the ICJ in the midst of not only a massive military operation to dismantle Hamas but also while conducting the largest and most complex forensic investigation in Israel’s history, it is time Hamas faced some intensified scrutiny of its own.

Hamas leaders must face international immobilisation through the ICC international arrest warrants. Equally, Hamas allies must come under more pointed political pressure.

Judge Sebutinde of Uganda issuing her dissenting opinion at the ICJ delineates exactly such an opportunity. The judge noted, acerbically, that South Africa continues to ‘enjoy a cordial relationship with the leadership of Hamas’. (South Africa is so enamored with Hamas that on December 5, 2023, South Africa formally hosted a Hamas delegation led by senior official Bassam Neim, during the ten-year anniversary of Nelson Mandela’s death.)

Establishing this love fest, the Judge wrote:

‘…one would encourage South Africa … to use whatever influence they might wield to try and persuade Hamas to immediately and unconditionally, release the remaining hostages as a goodwill gesture.’

Certainly, Israel as a sovereign state and member of the international community is subject to international humanitarian law, and Israel is accustomed to scrutiny, even when scrutiny has been renewed by the ICJ ruling regarding Israel’s conduct of the conflict, the focus must now shift to Zimeray’s efforts at the ICC – both for the charge of genocidal murder on October 7 of the Israeli people and the pressing need for the issuance of international arrest warrants for the leaders of Hamas.

Not only foes, but friends too of Hamas, must be pressured to leverage the Islamist jihadists to release the hostages, if not in recognition of the extreme barbarity of these acts perpetrated against civilians including against children and infants and God help us women who may now be pregnant by their Hamas captors, but also as an act of definitive deconfliction.

Zimeray’s efforts at the ICC must be augmented, the families travelling to provide testimony and witness proceedings must be supported, other families encouraged to testify and the most exhaustive evidence-gathering, documentation and analysis must facilitate the Zimeray’s and the ICC’s work

As Eyal Waldman said to me in Davos, all attention must now focus on the hostages above all else. With the release of the hostages begins the possibility of an end, and let us hope, the chance that both the Jewish mourner’s kaddish and the dying Muslim’s shahadah be granted desperately hoped reprieve.