JUSTICE - No. 71

Spring 2024 No.71 הארגון הבינלאומי של עורכי-דין ומשפטנים יהודים (ע״ר) In this issue The Battle of Israeli Women The Holocaust and the Age of Rights Hamas and Genocide The Legal War Against Israel at the ICJ The ICJ and Genocide South Africa’s ICJ Genocide Case Against Israel Addressing Antisemitism Europe’s Continuing Effort to Combat Antisemitism Fighting Antisemitism in Court: The Brazilian Experience The October War – Advocacy in Times of Emergency

The International Association of Jewish Lawyers and Jurists Honorary President: Judge Hadassa Ben-Itto z”l (Israel) President Emeritus: Irit Kohn (Israel) Lifetime Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Oreste Bisazza Terracini, Dr. (Italy), Joseph Roubache z”l (France) Board of Governors All members of the Executive Committee are members of the Board of Governors. Executive Committee President Meir Linzen (Israel) Deputy President Daniel Reisner (Israel) Vice President and Coordinator for International Organizations Pnina Sharvit Baruch (Israel) Vice President and Secretary General Rachel Levitan (Israel) Vice President and Treasurer Avraham (Avi) Doron (Israel) Vice Presidents Robert Garson (USA) Marcos Arnoldo Grabivker (Argentina) Maurizio Ruben (Italy) Chief Executive Officer Hila Kugler Ramot (Israel) Head of the Legal Center for Combating Antisemitism Avraham Yishai (Israel) Representatives to the U.N. in Geneva (UNOG) Pnina Sharvit Baruch (Israel) Hila Kugler Ramot (Israel) Representatives to U.N. Headquarters in New York Pnina Sharvit Baruch (Israel) Hila Kugler Ramot (Israel) Regina Tapoohi (USA) Richard Horowitz (USA) Mark Speiser (USA) Representative to the European Parliament Pascal Markowicz (France) Meir Linzen (Israel) Daniel Reisner (Israel) Pnina Sharvit Baruch (Israel) Rachel Levitan (Israel) Avraham (Avi) Doron (Israel) Marcos Arnoldo Grabivker (Argentina) Maurizio Ruben (Italy) Robert Garson (USA) Alan Sacks (Israel) Aleksandra Gliszczynska-Grabias (Poland) Alyza D. Lewin (USA) Amos Shapira, Prof. (Israel) Avraham Yishai (Israel) Axel Freiherr von dem Bussche, Dr. (Germany) Baruch Katzman (Israel) Calev Myers (Israel) Carlos Schlesinger (Brazil) Dalia Tal (Israel) Dan Roskis (France) Daniel Benko (Croatia) David Benjamin (Israel) David Pardes (Belgium) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Elyakim Rubinstein, Justice Prof. (Israel) Ethia Simha (Israel) Graham ZelIick, Prof. (UK) Hernan Najenson (Argentina) Hila Kugler Ramot (Israel) Irit Kohn (Israel) Isaac (Tzachi) Shragay (Israel) Jacques Cohen (France) Jeremy D. Margolis (USA) Jimena Bronfman (Chile) Jonathan David (Israel) Jonathan Lux (UK) Julia Andras (Austria) Maria Canals De-Cediel, Dr. (Switzerland) Michael H. Traison (USA) Michael Kempinski (Israel) Nathan Gelbart (Germany) Noemi Gal-Or, Dr. (Canada) Olaf Ossmann (Switzerland) Pascal Markowicz (France) Regina Tapoohi (USA) Richard Horowitz (USA) Ronit Gidron-Zemach (Israel) Roy Schondorf, Dr. (Israel) Ruben Pescara (Italy) Sarah B. Biser (USA) Stephen C. Rothman, Judge (Australia) Stephen R. Greenwald (USA) Suzanne Wolfe-Martin (Malta)

Spring 2024 1 JUSTICE is published by The International Association of Jewish Lawyers and Jurists (IJL) 10 Daniel Frisch St. Tel Aviv 6473111, Israel Tel: +972 3 691 0673 Fax: +972 3 695 3855 office@ijl.org www.ijl.org © Copyright 2024 by IJL ISSN 0793-176X JUSTICE is published for members and friends of the International Association of Jewish Lawyers and Jurists. Opinions expressed in JUSTICE are those of their authors and do not necessarily reflect the views of JUSTICE or the International Association of Jewish Lawyers and Jurists. The accuracy of articles appearing in JUSTICE is the sole responsibility of their authors. Articles in English are welcome but should be preceded by a query to the IJL Advisory Board at office@ijl.org. Back issues of JUSTICE are available at www.ijl.org. JUSTICE No. 71, Spring 2024 Editor Mala Tabory, Dr. Special Advisor Irit Kohn, Adv. Advisory Editor Alan D. Stephens Academic Advisory Board Michael Bazyler, Prof. Noemi Gal-Or, Dr. Oren Gross, Prof. Moshe Hirsch, Prof. Deborah Housen-Couriel, Adv. Robert Katz, Prof. Michla Pomerance, Prof. Arie Reich, Prof. Nicholas Rostow, Prof. Robbie Sabel, Prof. Amos Shapira, Prof. Malcolm N. Shaw, Prof. Joseph H. Weiler, Prof. Legal Editorial Staff Jennifer Farrell, Esq. Gavriella Lazarus Shani Birenbaum Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 Cover Photo Credits An anemone field in the Ruhama forest, Darom Adom Festival: Ezrazo | Wikipedia Contents President’s Message Meir Linzen 2 The Battle of Israeli Women Michal Herzog 4 Address The Holocaust and the Age of Rights Tom Ginsburg 6 Articles The Legal War Against Israel at the International Court of Justice Steven E. Zipperstein 12 The International Court of Justice and Genocide Appendix: Hamas and Genocide Robbie Sabel 22 South Africa’s ICJ Genocide Case Against Israel Richard D. Heideman and Joseph H. Tipograph 29 Addressing Antisemitism Lord Eric Pickles 34 Europe’s Continuing Effort to Combat Antisemitism Michael Whine 40 Fighting Antisemitism in Court: The Brazilian Experience Fernando Lottenberg and Andrea Vainer 47 The International Human Rights Clinic and the October War – Advocacy in Times of Emergency Michal Goren, Shiran Reichenberg and Yaël Ronen 50

2 No. 71 JUSTICE am writing these lines on Yom Hazikaron, Israel’s “Memorial Day for Israel's Fallen Soldiers and Victims of Hostile Acts,” and on the eve of Independence Day, marking the 76th Anniversary of the establishment of the State of Israel. More than 25,000 soldiers and civilians have lost their lives since 1860, the beginning of the rebirth of the Jewish People in the Land of Israel. More than 1,500 new victims have been added since October 7, 2023. These are days that are almost impossible to bear. We recently marked Holocaust Remembrance Day, Yom HaShoah. A public discussion has begun as to whether October 7 marks a new Holocaust. There is no doubt that the heinous and horrific actions of Hamas on that day – mass slaughter, murder, rape, kidnapping, defiling of bodies – are exactly the same type of monstrous actions perpetrated during the Holocaust. Nevertheless, the surprise events of October lasted only one day. Our Nation now has a State, an Army, Security Services, and a Government. I do not overlook the shortcomings of the Army and the Security Services, who failed in their duty to prevent much of what happened on October 7. But 85 years ago, we did not have a State, a Government or an Army, and the horror lasted for six years while the Nazis and their collaborators worked tirelessly to destroy our People, without their having anyone to protect them. The war in Gaza continues, albeit at a lower level of intensity. The war has raised complex dilemmas, military, political, ethical and legal. The war is being waged in one of the most densely populated areas in the world. Hamas not only operates from within centers of civilian population, including mosques, schools and hospitals, and uses the civilian population as human shields, but also uses the population as a weapon in achieving its goals. Hamas does not care for the lives of its people, and exploits the suffering of the civilian population in order to harm Israel. While Israel continues to invest efforts in protecting and minimizing harm to civilians and abides by international law, Hamas is exploiting international law and the civilian population. Hamas is trying to portray Israel as an aggressor with no regard to international law, rather than a victim responding to defend itself while abiding by its international law obligations, and has succeeded in convincing many that this is the case. At the same time, our enemies are using legal means in order to block Israel’s right and actions to defend itself. The “Genocide” proceedings instigated by South Africa at the ICJ are an absurd misuse of international legal forums. The parallel Advisory Proceedings on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territories” at the ICJ are yet another example of the abuse of legal proceedings. I do not intend to minimize the obligations of the State of Israel to abide by international law even in the most difficult of circumstances, nor the importance of the international courts, but to express outrage against the distortion of international law by such misuse. The latest attempt of the International Criminal Court to indict Israel’s Prime Minister and its Minister of Defense on charges of Crimes against Humanity and War Crimes is tantamount to indicting the State of Israel for defending itself against an enemy whose sworn mission is to destroy it. Even though the IJL does not have any formal standing at the ICJ, we submitted a detailed Written Statement, in line with ICJ Practice Directions, in the Advisory Proceedings. The Statement will be reprinted in the next issue of JUSTICE. This Statement presents, inter alia, a clear and balanced account of the legal claims of Israel and the Jewish People concerning the West Bank and Jerusalem, as well as a reasoned perspective on the Laws of Belligerent Occupation. The dispute between Israel and the Palestinians will not be resolved in any international legal forum. The proper forum for debating and resolving the IsraelPalestinian conflict is a political one, and requires negotiations between the parties. A few weeks ago, Iran attacked Israel with an unprecedented barrage of hundreds of missiles and drones. Thanks to Israel’s defensive and offensive capabilities, and with assistance from its allies, a terrible disaster was President’s Message I Meir Linzen Photo: Idan Gross

3 Spring 2024 prevented. But this does not detract from the fact that Iran, both directly and indirectly through its proxies, is working relentlessly for the destruction of Israel. Is this not the right time to use all legal methods available to bring an end to the genocidal actions of Iran? Finally, the War which began on October 7 has launched a powerful and terrible wave of antisemitism in the West. We call upon Governments, Law Enforcement Authorities, and Universities to act resolutely against every manifestation of antisemitism – there should not be any tolerance for anyone who acts against Jews simply because they are Jews. There is no clash of values here – this is not an issue of freedom of speech or the right to protest. The antisemitism that we are witnessing undermines the very foundations of both freedom of expression and the right to protest. The protests at Universities, which are centers of learning entrusted with the education of future generations, and the responses of the authorities at those Universities, are unprecedented and alarming. The IJL, with its limited resources, is providing Jewish students with legal support against all manifestations of antisemitism on the part of academic staff and students alike. The IJL will continue its efforts in all the areas outlined above, in the hope and with a prayer for the release of all our hostages, for our wounded soldiers and victims of terror, for the State of Israel, and for the Jewish People wherever they may be. May 2024

4 No. 71 JUSTICE wo days after the horrific Hamas attack of October 7, I met Rotem, a young mother of two small children from a Kibbutz on the Gaza border. I held my breath as she recounted how she ran with her children to hide while terrorists rampaged through their home, how they made it to the safe room and desperately held the door, praying the terrorists wouldn't enter. Her terror echoed accounts I've heard from abused women, except now the threat was not from a violent husband. And Rotem was not alone; she is one of many Israeli women who simultaneously faced murder and rape by Hamas terrorists on that fateful day. At the President of Israel's Residence in Jerusalem, we are preparing for the day the United Nations General Assembly has designated the International Day for the Prevention of Violence against Women, which is observed every November 25. Every year, I host victims, civilsociety leaders, activists, and scholars committed to women's rights and safety on this day. But this year will be different. Many things changed on October 7 when thousands of Hamas terrorists massacred Israeli families, burnt children and the elderly, and kidnapped hostages. This deeply impacted our visceral understanding of the cruelty of gender-based sexual violence—and our faith in the international organizations that claim to care about women. It took me several days to grasp the monstrous nature and scale of violence suffered specifically by women on October 7. My first realization came when meeting volunteers of the Association of Rape Crisis Centers who discreetly told me of conversations with survivors. They heard testimonies that shocked them to the core. At the Nova music festival, where more than 350 young people were slaughtered and dozens kidnapped, witnesses hiding in the bushes saw terrorists gang-rape, then murder and mutilate women. Those of us unlucky enough to have seen video evidence broadcast by the terrorists themselves witnessed the body of a naked woman paraded through Gaza, and another, still alive, in bloodied pants held captive at gunpoint being pulled into a jeep by her hair. This evidence, along with the explicit recorded confessions of captured terrorists, makes abundantly clear that mass rape was a premeditated part of Hamas's plan. And this crime is ongoing: The hostages held in Gaza include young women and only when they are released will we know what they have endured. In the 1990s, international agencies and legal experts finally began to see violence against women as a particular category of war crime. Organizations like UN Women exist to protect women from such crimes, while Israeli experts and activists have been involved in these international efforts. Thus, our second shock: The inconceivable and unforgiveable silence of these organizations when faced with the rape and murder of Israeli women. It is not that condemnations of gender-based violence by Hamas have been weak or insufficient – there have been none at all. Statement after statement by The Battle of Israeli Women Michal Herzog A version of the following article was published by the First Lady of Israel, Adv. Michal Herzog, in the international news outlet NEWSWEEK, November 22, 2023, under the headline, "The Silence From International Bodies Over Hamas' Mass Rapes Is a Betrayal of All Women," six weeks after the atrocities committed by Hamas on October 7. At the time, the international women’s and human rights organizations remained deafeningly silent on the abhorrent sexual gender - based violence carried out by Hamas against women in Israel. Following this article, and the unrelenting dedication of so many leading activists in Israel, the world finally began to take note, condemn, investigate, and speak openly about these terrible crimes. Mrs. Herzog was also instrumental in hosting in Israel the United Nations Special Representative on Sexual Violence in Conflict, Mrs. Pramila Patten, and convening, together, the leading voices and experts in Israel on the issue of gender-based violence. Mrs. Patten’s visit resulted in a very important and harsh report presented to the UN Security Council establishing that sexual violence was committed by Hamas on October 7 in multiple locations. As courageous victims who are able to speak out have come forward, we look back at this article as a vital step in this ongoing fight for justice for the victims, and for the world to understand the true horrors that Hamas have committed and continue to commit, while the hostages remain held in brutal captivity. T

5 Spring 2024 organizations like UN Women, the Committee on the Elimination of Discrimination against Women (CEDAW) have failed to condemn these crimes. They failed us, and all women, at this critical moment. As a woman and a mother, my heart goes out to women and children in Gaza suffering the consequences of the war started by Hamas. I believe they deserve aid and support. But this does not mean the erasure of the atrocities committed by Palestinian terrorists on October 7. The silence of international human rights organizations, and the unwillingness to believe Israeli women in the face of overwhelming evidence has been devastating. For the Israelis who have always been on the forefront of the fight for women's rights worldwide, this was a moment of crushing disappointment. A disappointment shared with me by one of our most prominent women's rights advocates, Prof. Ruth Halperin-Kaddari, a former CEDAW vice-chair. ”I knew it would be difficult to get them to issue a reasonable statement,” she said of the UN committee in a Harvard Medical School video conference, ”but never did I imagine that when faced with such undeniable atrocities – given the very purpose for which they have been established – that they would actually resort to not acknowledging it at all.” Ignoring the ”unprecedented, premeditated and extreme cruelty of the sexual violence committed by Hamas,” Prof. Halperin-Kaddari added, meant not only failing Israeli women but failing the entire international human rights system. ”I still am a believer in this system. But this was a huge blow to this belief.” I agree with every word. To mark this year's International Day for the Prevention of Violence against Women, Israeli women – Jews, Muslims, Christians, and Druze – will gather at the President's Residence in Jerusalem. We will meet in the lingering shock of the violation of our rights, and with the profound sense that all of us who believe in those rights have been betrayed. Yet we will persist in presenting the truth to the world and to every human rights organization. We owe it not only to our own victims, but to all women who will face these crimes in the future and must know that they are not alone. n Michal Herzog is First Lady of the State of Israel. The views expressed in this article are the writer's own. Mrs. Herzog is a lawyer by profession, who has been active in the field of mental health and heavily engaged in voicing the particular cruelty endured by Israeli women in the course of the Hamas attack.

6 No. 71 JUSTICE hank you for giving me the honor of delivering this lecture on the occasion of International Holocaust Remembrance Day. I would like to first mention Tom Buergenthal, a distinguished jurist who passed away at the age of 89 in 2023, after a long career devoted to the protection of human rights. I had the privilege of knowing him, as perhaps some of you also did. A survivor of Auschwitz, he went on to become a major force in the construction of the international human rights regime, transforming his traumatic childhood into a lifetime of effort for universal justice. As a scholar and professor at George Washington University, he co-authored a pioneering casebook on human rights. As a jurist, he played a critical role in the development of the InterAmerican Court of Human Rights, after being appointed by Costa Rica as one of the first judges when it was established in 1979.1 He went on to serve on numerous international bodies, culminating in a decade of work as a judge on the International Court of Justice, in the building in which we are meeting. This lecture is co-sponsored by the Jewish community of The Hague, of which I have fond memories from my own two years here. I would like to begin the first part of my lecture by reflecting on the role of Jewish jurists like Tom in contributing to the development of human rights both before and after World War II. My theme is the interplay of cosmopolitanism and particularism. These ideas are usually seen as in some tension, but I believe that they are mutually constitutive and necessarily dependent on each other. While human rights is a cosmopolitan idea, its historical emergence was motivated by a particular set of sufferings and experiences, from the African slave trade to the Armenian genocide to the destruction of European Jewry. The movement for rights for all was championed in large part by people who suffered for their own particular identities, and responded not by fleeing or rejecting those identities but by working for justice. Cosmopolitan liberalism seeks to limit the power of states to mistreat their own citizens and others. Once the human rights movement emerged, however, it turned out that states were not only the greatest threat to rights, but the primary mechanism by which rights could be effectively advanced. We have just celebrated the 75th anniversary of the Universal Declaration of Human Rights (UDHR), a monumental step in the formation of the international human rights movement. Yet despite the expectations of its drafters, the Declaration’s enforcement has not really come about through the United Nations, which has a sclerotic human rights machinery and a Human Rights Council made up primarily of human rights abusers. Instead, it has come about through the power of states, which have incorporated rights into their national constitutions and deployed their (sometimes imperfect) tools to enforce them. Cosmopolitan values, then, only take life through particular national projects, of which national constitutions are central. The Holocaust and the Age of Rights* Tom Ginsburg * This lecture, slightly edited, was delivered on the occasion of the International Holocaust Remembrance Day, 2024, at the Peace Palace, The Hague. It is dedicated to the memory of Tom Buergenthal, z’’l. 1. The United States is not a member of the Inter-American Court of Human Rights. T Abstract: We have just celebrated the 75th anniversary of the Universal Declaration of Human Rights (UDHR), a monumental step in the formation of the international human rights movement. The UDHR was followed by several other treaties and institutions that together comprise an integrated system. It is one in which individual Jewish jurists, including the late Tom Buergenthal, played an outsized role in building. Despite the promise of universalism, however, our era remains beset by profound human rights abuses. The impossibility of building a truly global system of effective implementation does not mean that the UDHR or the human rights movement has been without impact; instead, the UDHR’s promise of universalism has been best advanced through particularist national and regional projects. This suggests that the tension between particularist loyalties and cosmopolitanism is largely a false one, and that the relationship is complex. Redeeming the promise of the UDHR requires building national capacities for implementation of rights, and strong states.

7 Spring 2024 I will elaborate on the Jewish contribution to the emergence of human rights. Rights can be conceived of as either national or universal. The historiography of rights emphasizes how they first emerged in national contexts, like the American colonies and later the French revolution. The colonists in America were fighting for the rights of Englishmen.2 The French were more universalist and spoke grandly of the rights of man but did not extend them to the enslaved people in their own colonies, or to women. As national constitutions began to spread in the 19th century, they included lists of rights for particular peoples, be they Dutch, Danish, or Bolivian. It was the transformation of these national projects into a truly international concept, by which every person by virtue of her humanity was worthy of protection, that required the horrors of the Holocaust to effectuate it. That was the vision of the Universal Declaration. Jewish scholars were well-represented in the group of lawyers who built our modern conceptual architecture. These include Tom Buergenthal’s own teacher and collaborator, Louis Henkin, the scion of a great rabbinic family, who authored an important book called The Age of Rights (whence my title);3 Rafael Lemkin, the principal author of the Genocide Convention and inventor of the term, who began his life’s work after encountering the Armenian genocide; Egon Schwelb, who served in the United Nations’ Human Rights Division, playing a role in the international covenants that legalized human rights in the 1960s, and who authored the idea of crimes against humanity; René Cassin, the French jurist who played a central role in the drafting of the Universal Declaration of Human Rights; Jacob Robinson, the first legal advisor to the UN Commission on Human Rights who also served as the legal advisor to Israel’s mission to the UN; and perhaps most famously, Hersch Lauterpacht, a judge of the International Court of Justice who provided intellectual underpinnings to the human rights idea and worked behind the scenes at Nuremberg. Those men and others played an outsized role in producing the norms of international human rights; Tom, who was a generation or more younger than the others, worked to institutionalize them. Most of them were born into a Europe in which they were second class citizens, and most lost their families in the Holocaust. They were able to transcend these things, in part because they took advantage of the cosmopolitan opportunities of general legal education that were newly available to Jews. This Jewish contribution to international human rights may on its surface seem unusual. The principal − though not only − political program for Jewish security in international law was particularist, namely the Zionist movement to establish a homeland for the Jewish people in Palestine. We know and understand the connection between the Holocaust and the founding of the State of Israel in 1948; the tension between that particularist project and the general law of human rights is being adjudicated in this very building as we meet, and debated on the streets of Tel Aviv.4 There is much to say about that issue, which is beyond the scope of my lecture, except to say that the way Lemkin defined genocide is broad, and acts need not rise to the level of the Holocaust to meet it. For my main theme, the relevant point is that the founding of a state is a reflection of particular national aspirations, rather than international ones. There were other strains of modern Jewish history that pushed in a cosmopolitan direction. With the rise of European romantic nationalism in the 19th century, the position of Jews was in great flux. Even as they were being emancipated from ancient restrictions, they were in a vulnerable position as a landless minority within a continent awash in territorial nationalism. Hungary for the Hungarians and Romania for Rumanians created particular problems for those of different ethnicities who lived in each other’s respective country, but at least they had a putative homeland which could offer a place to flee to and a government to which they could appeal in 2. James H. Hutson, “The Bill of Rights and the American Revolutionary Experience,” in A CULTURE OF RIGHTS: THE BILL OF RIGHTS IN PHILOSOPHY, POLITICS AND LAW 1791 AND 1991, Michael James Lacey and Knud Haakonssen, Eds. (Cambridge: Cambridge University Press, 1992), 62-97. 3. Louis Henkin, THE AGE OF RIGHTS (N.Y.: Columbia University Press, 1990). 4. Israel has had an increasingly oppositional relationship with the human rights community, especially since the occupation that began in 1967. See James Loeffler, ROOTED COSMOPOLITANS: JEWS AND HUMAN RIGHTS IN THE TWENTIETH CENTURY (New Haven: Yale University Press, 2018), ix. The human rights movement was institutionalized after the Six Day War. See Samuel Moyn, THE LAST UTOPIA (Cambridge: Harvard University Press, 2010). The antagonistic relationship that developed was not expected by Lauterpacht and Robinson, who sought a leadership role for the nascent state in human rights, while pushing for genuine international mechanisms of protection.

8 No. 71 JUSTICE the event of abuses. That did not work for the Jews or the Roma, the European peoples without land. For such groups, national rights did little good. Thus, the position of Jews within Europe − a people without a land in a land of peoples − meant that they were driven to seek protection from international law. A higher order legal system that could discipline the newly proliferating nations was attractive to the extent that it could overcome a state’s sovereign claim that domestic matters were not the business of anyone else.5 As Henkin wrote, “The primitive international human rights movement of the 19th century, much of it on behalf of Jews, provided fertile seed for an international law of human rights.”6 The universalist seeds were slow to develop. Early efforts at international conferences in the 19th century had not produced fruit. The Hague Peace Conferences of 1899 and 1906 (which established the Permanent Court of Arbitration and inspired this very building to house it) focused on humanitarian law during wartime, rather than the day-to-day practices of discrimination and internal violence that Jews routinely suffered.7 But the announcement in Woodrow Wilson’s Fourteen Points speech that the self-determination of “peoples” would be the basis for a post-Imperial world order gave new urgency to what we might, with Karl Marx, call the Jewish question. Wilson’s call generated a proliferation of peoples each claiming self-determination, but of course they did not live within easily circumscribable borders. The solution in Europe after World War I was to combine recognition of the new nations with a set of collective guarantees of minority rights. These were embodied in a set of “Minorities Treaties” which identified external guarantors of minority rights, especially the great powers, that would be able to intercede when mistreatment was occurring. The rights included in these treaties were mainly religious freedom, minority language rights, and control over communal affairs − what international lawyers now call “internal” self-determination to distinguish it from actual statehood. This was not yet a full-blown international human rights system. For one thing, the rights were collective or communal, rather than individual and belonging to everyone on earth by virtue of their humanity. One obtained rights by virtue of membership in a particular community. In addition, enforcement was to be guaranteed by specifically identified external powers which were territorial states.8 Such states could bring claims to the Permanent Court of International Justice, but only states could do so. There was not yet an international machinery to protect rights at the behest of individuals. The system was not yet cosmopolitan, nor was it particularly effective for Jews. The persistence of vicious antisemitism in the new nationstates led to new massacres on an even larger scale than those of the 19th century. The Jewish question was neither extinguished nor resolved by the idea of selfdetermination. Around the same time, the parallel Zionist project was blossoming, with its various strands. The League of Nations’ failure to actually enforce the minority treaties had the effect of deepening, not redirecting, Jewish energy toward establishing a homeland in Palestine. Had the minorities regime worked out as planned, it may not have been necessary, and diasporic communities could have remained intact. (I note, in light of the vicious fighting under way in Gaza, that we can look back and imagine alternative histories, in which the “revisionist” strand of Zionism associated with Zev Jabotinsky did not come to dominate. Theodore Herzl’s own novel, Altneuland, envisions a multicultural state in which Jews and Arabs live in coexistence, and Moria Paz has shown that René Cassin laid out a vision of a joint state with full equality for both Arabs and Jews.9 I recommend further analysis of this topic and the study of history in depth to anyone interested in understanding how we got to where we are.) The alternative histories that we now can imagine were not to be. European Jewry was, in very large part, destroyed, and it is in solemn memory of this monumental 5. James Loeffler and Moria Paz, “Introduction,” in THE LAW OF STRANGERS: JEWISH LAWYERS AND INTERNATIONAL LAW IN THE TWENTIETH CENTURY, James Loeffler and Moria Paz, Eds. (Cambridge University Press, 2019), 8-9. 6. Louis Henkin, “Judaism and Human Rights,” 25(4) JUDAISM 435, 440 (1976), quoted in Samuel Moyn, “Louis Henkin, Human Rights, and American Constitutional Patriotism,” in THE LAW OF STRANGERS, supra note 5, at 93, 99. Note that there were also efforts to advance particular rights of Jews: the Alliance Israelite Universelle was an organization founded in Paris to advance the Jews’ religious rights and provide resources to Jews throughout the world, including in Arab lands. 7. Loeffler, supra note 4, at 12. 8. Loeffler, supra note 4, at 16. 9. Moria Paz, “A Most Inglorious Right,” in THE LAW OF STRANGERS, supra note 5, at 192; see generally Itamar Mann, “Zionism and Human Rights,” 17 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW, 1319-35 (2019).

9 Spring 2024 cataclysm that we gather here today. (As an aside, I feel privileged to have lived here 25 years ago, to know people like Mijnheer Stemmer, who survived by taking his family across the Swiss border; Mevrouw Niehom, who was hidden by Dutch Christian farmers who saved her life; and many others.) The United Nations was founded in the immediate aftermath of the war, and among its purposes was to “reaffirm faith in fundamental human rights.”10 In the short period between the founding in 1945 and the UDHR in December 1948, we see the formation of a new set of institutions to advance the protection of individuals. The Nuremberg trials provided the basis for the field of international criminal law, later embodied in the International Criminal Tribunal for the former Yugoslavia and later the International Criminal Court here in The Hague, along with others such as the Kosovo Specialist Chambers and the Special Tribunal for Lebanon. It also led to the writing of the Universal Declaration of Human Rights by the Human Rights Commission, with Cassin playing a central role. The conceptual break was to treat rights as individual, and protection as universal. To understand the intellectual underpinnings of this shift, I must delve more into the person of Hersch Lauterpacht, whose life embodies the fusion of particularist and cosmopolitan visions. He was born in Galicia in 1897, and experienced the usual levels of antisemitism prevalent in his time and place. He became politically active in Zionist youth movements, but his life turned in a more cosmopolitan direction. He eventually moved to Vienna and ultimately to London where he quickly became an important scholar of international law. He contributed a good deal to the transformation of international law, from a framework focused on interactions among sovereign states, to one in which human rights were seen as being a legitimate subject of international concern; individuals enjoyed rights, as well as duties, so that they could bear international criminal responsibility; and intergovernmental organizations like the United Nations became important actors. His career culminated in service in this building as the British judge on the International Court of Justice from 1955 to 1960. Lauterpacht’s 1945 book, An International Bill of the Rights of Man, foreshadowed the Universal Declaration.11 His was one of several proposals to the United Nations Human Rights Commission, which was charged with drafting the text in 1948.12 Lauterpacht, however, was ultimately disappointed that the United Nations did not include a right of petition for victims of abuses. He wanted a direct appeal from the individual to international institutions, as he understandably did not trust states to be uniform guarantors of rights. His proposal was rejected, and so the glaring gap between normative articulation of rights and their actual enforcement on the ground was present at the beginning. It is interesting that a “globalist” like Lauterpacht also remained a Zionist and contributed to the drafting of the Declaration of Independence of Israel. Shortly after his appearance in this building in March 1948, arguing the famous Corfu Channel case before the International Court of Justice, he went to New York for the International Law Commission. He was contacted by the Jewish Agency, which had decided to move forward with a declaration of independence for the prospective country. Lauterpacht produced a draft, including a justification for Jewish self-determination within a cosmopolitan legal order.13 As with the Universal Declaration, his proposal was one of many, and not adopted, although part of the conversation. (The final document makes explicit mention of the Nazi Holocaust, and mentions both the selfdetermination rights of Jewish people as well as the “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex” and a promise to guarantee freedom of religion, conscience, language, education and culture. Thus, even a very particularist project, the establishment of the State of Israel, was accompanied by some notion of rights granted to all.) So far, I have shown that the Holocaust led, as many have argued, to what Henkin has called the Age of Rights after 1945. What is notable is the outsized contributions of many Jewish lawyers as individuals, as well as the important role of arguments about Jews in general in the 10. UN Charter, Preamble. 11. Hersch Lauterpacht, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN (N.Y.: Columbia University Press, 1945). 12. Besides Lauterpacht, the American Jewish Congress provided its own draft text, which helped inform the content. James Loeffler, “The Conscience of America”: Human Rights, Jewish Politics, and American Foreign Policy at the 1945 United Nations San Francisco Conference, 100 JOURNAL OF AMERICAN HISTORY 401 (2013). 13. Eliav Lieblich and Yoram Shachar, “Cosmopolitanism at a Crossroads: Hersch Lauterpacht and the Israeli Declaration of Independence,” 84 BRITISH YEARBOOK OF INTERNATIONAL LAW 1 (2014).

10 No. 71 JUSTICE prehistory, with the minorities regimes. The suffering of the Jewish people as a collectivity propelled the world to seek to re-found itself with human rights as a normative core, even as the State of Israel was being formed as a kind of completion of the European project of territorial nationalism that had accelerated after the springtime of nations in 1848. For a moment, at least, there was a vision that general human rights were aligned with a particularist form of liberation. Let me now turn to the postwar period to describe the Age of Rights. At one level, the impact was at the international level − the formation of an ever-denser network of treaties, committees and regional human rights arrangements. The thick set of institutions, special rapporteurs and procedures at the United Nations is one institutional manifestation. Yet in a world of war and abuses, it is frankly hard to know what the impact of these institutions is. Lauterpacht’s frustration remains intact. It is my belief that human rights commitments are best advanced through the creation of national institutions, that they take life through particularist commitments in the life of states. A central mechanism here is national constitutions. As Henkin noted, “human rights are enshrined in the constitutions of virtually every one of today’s … states − old states and new; religious, secular and atheist; Western and Eastern; democratic, authoritarian and totalitarian; market economy, socialist, and mixed; rich and poor, developed, developing and less developed.”14 The age of rights is captured by an expanding set of norms in nation-states, which are the entities best positioned to protect them − and also the most dangerous entities in terms of abuses. Constitutional rights have expanded dramatically since 1948. The average national constitution had 22 rights in 1948; today that number is 49. Figure 1 demonstrates the expansion in textual articulation of rights. Figure 1: The Rise of Rights The growth of rights reflects a kind of technological expansion, in which the conceptual apparatus of rights has been deployed to an ever growing set of beneficiaries. If the minorities regime focused on collective rights, such as language and religion, the Universal Declaration was framed as being directed at every individual on earth. We have seen a great expansion in socioeconomic rights, like those of health care, education and social security, but also rights that require major state apparatus, such as a right to clean environment (now in roughly 40% of constitutions).15 Indeed, in recent years, we have seen rights spread from humans to animals, and, in some constitutions, mother nature itself. Obviously the mere articulation of a right in a national constitution is neither necessary nor sufficient for its enforcement. But one aspect of the age of rights is the spread of concepts, and so I focus on the decisions of constitutional drafters. When a set of drafters get together to write a constitution, they are engaged in a particularist project. Last year I worked with the country of Tuvalu in the middle of the Pacific to reform its constitution. A major issue was balancing rights of equality and religious freedom with traditional customs and practices. In doing so, some of the discussions questioned whether rights were a foreign imposition, but it was agreed that they had over time become Tuvaluan and so should be kept in the Constitution. The particular set they chose is theirs. But how do they decide which ones to consider in the first place? Where does the menu come from? This is where the UDHR comes in. Along with my colleague Zachary Elkins, I have shown that the UDHR formed a kind of menu for national constitution-makers. In a series of statistical analyses, we show how constitutions adopted after the UDHR became more similar to it.16 Using our Comparative Constitutions Project data, we identified a list of 117 rights that are found in constitutions. (There are others that are outside of our ontology, but we believe that all the widely 14. Henkin, supra note 3. 15. See Tom Ginsburg and Zachary Elkins, “Ideation and Innovation in Constitutional Rights,” 16(2) LAW AND ETHICS OF HUMAN RIGHTS 217-44 (2022). 16. Zachary Elkins, Tom Ginsburg and Beth Simmons, “Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice,” 54(1) HARVARD INTERNATIONAL LAW JOURNAL 201-34 (2013).

11 Spring 2024 distributed rights are included in our list.) We then looked at the set of these rights found in each constitution adopted before and after 1948, and compared it with the list in the UDHR. The average level of similarity after 1948 was much higher than before, suggesting that the UDHR had formed something of a template for constitutionmakers. We also looked at the overall popularity of each individual right. Those rights which had been included in the UDHR in 1948 had much higher levels of popularity thereafter, whereas rights left out of the document did not increase in popularity. Some of these rights are enforced in some constitutions, which implies that the UDHR enforcement works best when it is instantiated in national constitutional orders. In short, the age of rights has been one of expanding cosmopolitanism, but it has been one that has taken life through national constitutions. These documents have included enforcement machinery, such as human rights commissions and national constitutional courts, that in decent societies can advance the promise of the UDHR. Universalism requires particularist commitments to be fully effectuated. It is a commonplace, of course, that rights remain underenforced in our deeply broken world. The last year saw the biggest increase in the number of refugees in history, to 36 million worldwide. Perhaps twice that many are internally displaced, as war rages in Syria, Ukraine, Yemen, and of course Israel and Gaza. Even in rich democracies we struggle to deliver fully on the rights promised in constitutions. Without the cosmopolitan aspirations laid out in the Universal Declaration we would be even worse off. We cannot reject cosmopolitanism or particularism in making a better world. Let me close by returning to Tom Buergenthal. When I think of Tom, and I think of this building, I realize that we are all bricks in the wall of history. One thing about Tom was his relentless optimism: “The task ahead is to strengthen these tools, not to despair, and to never believe that mankind is incapable of creating a world in which our grandchildren and their descendants can live in peace and enjoy the human rights that were denied to so many of my generation.” n Tom Ginsburg is the Leo Spitz Distinguished Service Professor of International Law at the University of Chicago, where he also serves as Faculty Director for the Forum on Free Inquiry and Expression. He holds B.A., J.D., and Ph.D. degrees from the University of California at Berkeley, and currently co-directs the Comparative Constitutions Project, which catalogues the world’s constitutions since 1789. His latest book is Democracies and International Law, winner of Best Book Prizes from the American Branch of the International Law Association and the American Society for International Law. He is the author or editor of over 25 other books, including How to Save a Constitutional Democracy (with Aziz Huq), winner of the Best Book Prize from the International Society for Constitutional Law; The Endurance of National Constitutions, and Judicial Review in New Democracies, the latter two both winning best book awards from the American Political Science Association. He is a member of the American Academy of Arts and Sciences. Before entering law teaching, he served as a legal advisor at the Iran-U.S. Claims Tribunal in The Hague, and currently serves as a senior advisor on Constitution Building to International IDEA.

12 No. 71 JUSTICE ntroduction Enshrined in the UN Charter, the International Court of Justice (ICJ) is the UN’s judicial organ.1 Unfortunately, the Court has emerged during the past two decades as a hotspot in the lawfare campaign against Israel. The ICJ entered the fray in July 2004 by brushing aside objections to its jurisdiction and issuing an advisory opinion declaring portions of the West Bank separation barrier illegal. The Court also ventured beyond the issues raised in the case and declared Israeli settlements illegal. The ICJ’s 2004 advisory opinion set the stage for two recent cases before the Court. The first case involves South Africa’s accusations that Israel committed “genocide” in Gaza during its war of self-defense following Hamas’s massacres, sexual violence and taking of hostages on October 7, 2023. The second case involves the UN General Assembly’s December 2022 request to the ICJ for another advisory opinion, this time addressing the legality of the occupation and the legality of Israel’s actions in Jerusalem since 1967. The South Africa case and the General Assembly case both signal a troubling new phenomenon: Israel’s adversaries, wary of a U.S. veto in the Security Council, are using the ICJ instead as their preferred forum for issues of politics, war, and peace that should be the sole province of the Security Council. Rather than dismissing such efforts, the ICJ has embraced the opportunity to play a larger role on the world stage, raising questions about its proper mandate as the “principal judicial organ of the United Nations.” I: The ICJ and Political Disputes The Palestinian lawfare effort has found sympathy at the ICJ. The Court has waded into the Israeli-Palestinian dispute three times in the last two decades, even though the conflict is fundamentally a political dispute which should be deemed non-justiciable and beyond the ICJ’s jurisdictional purview.2 However, the Court argues that its occasional practice of accepting cases where “a legal question has political aspects” provides a basis for its jurisdiction over such disputes.3 The ICJ’s willingness to intervene in the IsraeliPalestinian conflict stands in stark contrast with the views of two of the Court’s most distinguished jurists, Judges Sir Percy Spender and Sir Gerald Fitzmaurice. In their dissenting opinions in the 1962 Namibia (South West Africa) cases, Judges Spender and Fitzmaurice cautioned the Court against taking jurisdiction over political cases, no matter how tempting or high-profile the cases might be.4 The ICJ’s Advisory Jurisdiction and the IsraeliPalestinian Conflict Article 65(1) of the ICJ Statute lays the foundation for who may request an Advisory Opinion, stating that “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.” The ICJ has described its advisory jurisdiction as existing to “offer legal advice to the organs and institutions requesting the opinion.”5 In the Nuclear The Legal War Against Israel at the International Court of Justice Steven E. Zipperstein 1. UN Charter, arts. 92-96. 2. South West Africa Cases (Eth. v. S. Afr.; Liber. v. S. Afr.), Joint Dissenting Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, 1962 I.C.J. 319, 466 (Dec. 21); see also J. Odermatt, “Patterns of Avoidance: Political Questions Before International Courts,” 14 INT’L J.L. IN CONTEXT 221–236 (2018). 3. See e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9), ¶ 41 [hereinafter: the “Wall Advisory Opinion”]. The Wall case presented the opposite situation – a purely political case in which the Palestinian side successfully injected enough of a “legal” flavor to give the ICJ a colorable basis for exercising its advisory jurisdiction. 4. South West Africa Cases (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections, 1961 I.C.J. 319, 466 (Nov. 9); Joint Dissenting Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice. 5. Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 236 (July 8), ¶ 15. I

13 Spring 2024 Weapons Advisory Opinion, the ICJ said it “is mindful that it should not, in principle, refuse to give an advisory opinion. In accordance with the consistent jurisprudence of the Court, only ‘compelling reasons’ could lead it to such a refusal.”6 Once a request is appropriately made, the ICJ engages in a two-step process to determine whether to exercise its advisory jurisdiction. First, the Court determines whether it has jurisdiction. If the Court finds it has jurisdiction, it determines whether it should nevertheless decline to take the case.7 The ICJ’s predecessor court, the Permanent Court of International Justice, declined to render an advisory opinion a century ago in the Eastern Carelia dispute between Finland and Russia. The Permanent Court of International Justice noted that it lacked sufficient information to resolve factual disputes between the parties, and therefore it would be inappropriate to render an advisory opinion.8 II. The Pending ICJ Advisory Opinion Case On December 30, 2022, the UN General Assembly adopted Resolution 77/247.9 The Resolution recites a litany of criticisms of Israel and reads more like an indictment of Israel than a request for legal advice. The Resolution culminates in a request to the ICJ to render an advisory opinion regarding the following two questions: (a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character, and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures? (b) How do the policies and practices of Israel referred to . . . above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status? The ICJ ordered parties to file opening briefs on July 25, 2023, and responsive briefs on October 25, 2023. (The ICJ did not extend the deadline following Hamas’s horrific October 7, 2023 terror attack against Israel.) Although only states are allowed to file briefs, the ICJ permitted the Organization for Islamic Cooperation to file but refused the same courtesy to the World Jewish Congress. The ICJ scheduled public hearings to commence on February 19, 2024. Jurisdictional Issues The first question arising from a request for an advisory ruling is whether the dispute resolution provisions of the Oslo Accords deprive the ICJ of jurisdiction or provide a “compelling” basis for the Court to decline the request. Article 37 of the ICJ statute provides that: Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.10 The Oslo Accords contain no such provision. Instead, the parties negotiated for and agreed to comply with a binding internal dispute resolution process. This process requires that any type of dispute is to be resolved through negotiations within a Joint Israeli-Palestinian Liaison Committee. If the dispute cannot be resolved by negotiations within the Joint Liaison Committee, then the next step would be to resolve the dispute “by a mechanism of conciliation to be agreed upon by the parties.”11 Should that not produce a resolution, then the final avenue would be for the parties to mutually agree to submit the dispute to an Arbitration Committee to be established by the parties themselves. Under no circumstances do the Oslo Accords permit 6. Id., at 235, ¶ 14. 7. Malcolm Shaw, INTERNATIONAL LAW, 9th ed., 974 (Cambridge: Cambridge Univ. Press, 2021). 8. Status of Eastern Carelia, Advisory Opinion, 1923 P.C.I.J. 272, Series B No. 5, 28-29 (July 23) (emphasis added). 9. UN G.A. Res. 77/247, U.N. Doc. A/RES/77/247 (Dec. 30, 2022). 10. Statute of the International Court of Justice, art. 37, available at https://www.icj-cij.org/statute 11. Declaration of Principles on Interim Self-Government Arrangements (Oslo Accords), Oct. 11, 1993, art. XV, available at https://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20PS_930913_DeclarationPrinciplesnterimSelf-Government%28Oslo%20Accords%29.pdf

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