JUSTICE - No. 71

29 Spring 2024 lready the subject of a hostile request in 2022 for a surely unfavorable advisory opinion that many expect will be issued by the International Court of Justice (“ICJ”), Israel is now mired in additional meritless but dangerous matters before the tribunal, this time standing accused of genocide. The accusation is anathema to Jewish values and to the principles upon which the democratic State of Israel was founded. Moreover, it belies the truth − which is being denied, disregarded and distorted by South Africa and other opponents of Israel − that it is Hamas, a designated terror organization, which launched attacks against and over the border of the sovereign State of Israel. Israel has responded in defense of its people and is doing everything possible to rescue the hostages which Hamas refuses to release. For over six months, Israel has taken unprecedented measures to care for the people of Gaza, minimize casualties and warn those in harm’s way while pursuing the terrorists in an attempt to remove Hamas from its stranglehold over the people of Gaza and residents of Southern Israel. Acting both on its own and as a shill for the Palestinians, and as a long-time propagator of anti-Israel and anti-Zionist propaganda, South Africa has now stepped into a leading role, by bringing the genocide case and putting Israel again on the docket of the Court. Israel’s foes are relishing this new development as they continue to castigate Israel in the court of public opinion, with the hope for a court decision that hangs Israel out to dry. Consistent with its history of bias against Israel, the ICJ’s preliminary ruling in the matter imposed measures that could seemingly cause Israel to be deemed as violating an order issued pursuant to the Genocide Convention, without the Court ever having found that Israel committed or intended to commit genocide. The ICJ’s Historical Indifference to Israel’s Security Concerns The ICJ, the judicial arm of the United Nations, demonstrated serious bias against Israel in an Advisory Opinion issued in 2004 concerning the terrorismprevention security fence (which the ICJ labeled the “Wall”) that Israel constructed during the Second Intifada to prevent suicide bombings and other terrorist acts. By ruling against Israel, the tribunal blatantly ignored the evidence of the onslaught brought against Israel by designated terror organizations; that the highest courts in Israel had active jurisdiction over cases brought by those claiming to be aggrieved by the construction of the security barrier; and that the Security Council itself was seized of the issue. The Court talked past these and numerous other jurisdictional defects, and in the process proceeded to opine that Israel essentially had no fundamental right to defend its citizens against acts of terror.1 While the 2004 Advisory Opinion, which by definition has no force of law, has not deterred Israel from protecting its citizens, the pronouncement masquerading as international law has nevertheless proved harmful. It has been used to embolden terrorists, radicalize susceptible minds in Western, progressive and worldwide circles, proliferate antisemitism, and impede the prospects of regional peace. The Advisory Opinion has provided a platform for Israel-haters to accuse the state of violating international law. In 2022, the United Nations General Assembly (“UNGA”) referred its second request to the ICJ (“UNGA Request II”) for an Advisory Opinion, this time regarding the “legal consequences” of a variety of other security measures undertaken by Israel.2 Following the model of the 2004 Advisory Opinion, the UNGA Request II South Africa’s ICJ Genocide Case Against Israel Richard D. Heideman and Joseph H. Tipograph A 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion at 142, 2004 I.C.J. 136 (July 9, 2004), available at https:// www.icj-cij.org/sites/default/files/case-related/131/13120040709-ADV-01-00-EN.pdf; UN Charter, Art. 51. 2. “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem,” UNGA Res. A/RES/77/247 (“Referring Resolution”), Dec. 30, 2022.