26 No. 70 JUSTICE warfare, despite rockets, incendiary terror balloons, and kite attacks from Gaza over the past two decades. Eager for peace and reconciliation, the government of Israel worked extensively with Hamas to create economic opportunities for the Palestinian people, all while Hamas planned the logistics of the massacre, seeming to use the previous and renewed Great Return Marches as cover for their acts of terror. Israel, consistent with its obligation to protect itself and its citizens, responded by taking measures to eliminate and deter the threats against its citizens, both now and in the future. Meanwhile, Hamas responded to the measures that Israel took by threatening to kill the hostages in their custody. Some hostages have been released, but at great cost to Israel, which in a hostage-prisoner exchange released three times as many Palestinian prisoners and paused its operations for several days. Arguments in the B’nai B’rith Brief Relevant to October 7 As set forth in the B’nai B’rith brief submitted on July 21, 2023, well before the October 7 massacre, the coupling of terrorism and lawfare is a strategy employed by Palestinian extremists, such as Hamas and other antiZionists who actively seek to physically eradicate the State of Israel. The dual strategy of terrorism and lawfare is also detrimental to the aspirations and realities of the challenges facing the Palestinian population. The Referring Resolution frames Israel’s security measures as an illegal “occupation” and ignores the heinous acts of terrorism that necessitate Israel’s need to maintain constant vigilance in seeking to protect its people. In addition, B’nai B’rith argues that at least since Israel’s unilateral withdrawal from Gaza in 2005, and notwithstanding public pronouncements by Hamas, other designated foreign terror organizations, Fatah, the PA and the PLO, Gaza has not been under occupation by Israel. For this reason alone, it was argued, the ICJ should decline to exercise jurisdiction and should refrain from issuing an Advisory Opinion. Perhaps the most important takeaway following October 7 was one of the more seemingly obvious arguments advanced by B’nai B’rith: that “[t]errorism and terrorists should not be glorified.”7 In the brief, B’nai B’rith pointed to the streets, schools, and other buildings across the West Bank and Gaza that are named in honor of terrorists. This point has now taken on new meaning. In rallies in cities and on college campuses around the world, the events of October 7 are being celebrated as a significant victory in Hamas’s resistance movement. This perspective has been facilitated by educators who have vilified Israel’s security measures by citing materials that they claim are instruments of “international law,” namely the 2004 Advisory Opinion and the bevy of biased UN resolutions and reports upon which it is predicated. The current perception of Hamas’s massacre as an act of resistance stems from the fact that these instruments either refuse or struggle with describing Hamas’s prior acts as acts of terrorism, particularly the wave of suicide bombings during the Second Intifada and its sponsorship and support of subsequent supposed “lone wolf” attacks. It should not be such a controversial undertaking to do so. Intentional violence carried out by Palestinian terrorist organizations against innocent civilians and even people visiting or working in Israel, and actions carried out by Palestinian terrorist organizations for the purpose of coercing the Israeli government to change its policies, fall squarely within the classic terrorist “triangle” that the UN itself has recognized for the purpose of defining acts of terrorism.8 The ICJ Advisory Opinion on the security barrier mentions the word “occupied” or its variations 184 times. It mentions “terrorism” or a variation three times. The purpose of the security barrier was to counter terrorism, but the opinion does not mention “counterterrorism” at all. The Court did not consider the security barrier to be a necessary or lawful measure to prevent terrorism. In fact, it found that Israel did not have the right to defend itself against terrorism, even though the right to selfdefense is a well-established principle in international law, recognized in the UN Charter and customary international law.9 Israel’s countermeasures, including its declaration of war against Hamas in response to the attack on October 7, can only be properly analyzed once Hamas’s murderous acts are defined and understood as acts of terrorism. The sequence of events on and after October 7 followed the precise pattern that was previously highlighted in the B’nai B’rith Brief: “Terrorists attack innocent Israeli citizens. Israel responds.”10 It is indeed terrifying, but by no means surprising, to see that even in the context of the sheer 7. B’nai B’rith Brief at 70, 8(f). 8. See Introduction to International Terrorism, University Module Series, United Nations Office on Drugs and Crime (2018), available at https://www.unodc.org/documents/ e4j/18-04932_CT_Mod_01_ebook_FINALpdf.pdf 9. UN Charter, Art. 51. 10. B’nai B’rith Brief at 53, 7.
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