24 No. 70 JUSTICE n October 7, 2023, Hamas, an Iranian-backed terrorist organization, breached the Gaza-Israel border security fence and entered Israel. The Hamas terrorists went on to murder more than 1,200 civilians, commit heinous acts of rape and savage torture, desecrate bodies, wound thousands of people, and take at least 240 hostages reportedly from 42 countries, including Israel and the United States. The evidence documenting these atrocities is perhaps unparalleled by any other act of genocidal violence in contemporary human history. Corroborating hours of gruesome video evidence collected from the cell phones of victims and first responders, as well as security and traffic cameras, are the videos recorded by the Hamas terrorists themselves, some of which they broadcast directly through social media and some of which were subsequently recovered by the Israel Defense Forces from the terrorists’ bodies and vehicles. Despite this abundance of evidence, sympathy and empathy for Israel and for the devastated Israeli families from the international community ranged from nonexistent to short-lived. Moreover, Israel’s efforts to eliminate Hamas’s military capabilities in Gaza as a response to Hamas’s attacks has given rise to a groundswell of threatened diplomatic and legal actions against Israel, as well as huge anti-Israel and antisemitic gatherings in communities and on campuses throughout the globe. Based on what has occurred in the past, we can predict that these actions will lead to biased and inflammatory charges in international courts, including the International Criminal Court (ICC) and the International Court of Justice (ICJ), both of which are based in The Hague. The ICJ was already considering a request for an Advisory Opinion referred to it by the United Nations General Assembly (UNGA) in a resolution entitled “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem.”1 The resolution calls on the ICJ to prescribe “legal consequences” against Israel for certain unsubstantiated claims about Israel that were adopted by the General Assembly on December 30, 2022 by less than a majority of UN member states.2 Many of the claims are premised on specious characterizations, determinations and proclamations made about Israel’s security practices that can be found in other UN resolutions and reports, as well as the ICJ’s 2004 Advisory Opinion concerning Israel’s security barrier between Israel and the West Bank.3 In many of these sources, including most notably the 2004 Advisory Opinion, the security measures Israel has taken have been treated as excessive, indefensible or without legal basis under international law. The necessity and sufficiency of Israel’s security should have become an issue of global concern on October 7, but it remains unclear whether the ICJ’s analysis of the questions referred to it will be properly informed by the evidence of the events of that day or Israel’s ensuing response. It is also unclear how the ICJ can be seen as administering meaningful productive justice if it were to proceed with issuing an Advisory Opinion that ignores or minimizes the evidence documenting the savagery of the Hamas-led massacre. Indeed, in the context of the October 7 barbaric conduct of Hamas, a fact-based analysis of Hamas’s actions is not only essential but fundamentally fair. ICJ Fact-Finding Protocol and Prior Advisory Opinion The ICJ indicates that its decision-making on the referred questions will be informed at least in part by the submissions it receives from interested parties. On or before the ICJ’s submission deadline of July 25, 2023, more How October 7 Should Inform Israel’s Clash at the International Court of Justice O Richard D. Heideman and Joseph H. Tipograph 1. UN GA Resolution A/RES/77/247 (“Referring Resolution”) Dec. 30, 2022. 2. Of the 193 voting UN Member States, 87 voted in favor, 26 against, 53 abstained and 27 did not vote. 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9, 2004). Available at https://www.icj-cij. org/sites/default/files/case-related/131/131-20040709ADV-01-00-EN.pdf (“2004 Advisory Opinion”).
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