JUSTICE - No. 71

30 No. 71 JUSTICE presented Israel’s measures decoupled from the acts of terrorism that necessitated them, so as to make them appear to be unprovoked human rights abuses of Palestinians. In July 2023, the authors of this article along with David Matas, Esq., Senior Legal Counsel to B’nai B’rith Canada and on behalf of B’nai B’rith International, B’nai B’rith Canada, the B’nai B’rith World Center in Jerusalem and the B’nai B’rith Office of United Nations Affairs submitted a brief to the ICJ in response to the UNGA Request II.3 The brief advocated that the ICJ should refrain from issuing another Advisory Opinion and highlighted the pattern of “international community” condemnation to which Israel has been subjected for its responses to terrorist attacks. The October 7 Hamas Massacre – Israel’s Security Nightmare On October 7, 2023, under the direction of the Iranianbacked terrorist organization, approximately 3,500 Hamas terrorists and Gazan civilians breached the Gaza-Israel border security fence in some 60 different locations and invaded Israel. The terrorists proceeded to murder, maim, burn, behead and torture more than 1,200 civilians and wound thousands more. They also took at least 240 hostages to Gaza. The terrorists video-recorded and broadcast their acts for the world to see. In the Fall 2023 edition of Justice, the authors of this article pointed out how the Hamas massacre validated Israel’s precise security concerns and argued that the ICJ could not administer “meaningful productive justice” by issuing an Advisory Opinion, particularly without “a fact-based analysis of Hamas’s actions.”4 Following the October 7 attack, Israel launched a military action in Gaza designed to locate and bring home the hostages and to remove Hamas from power. The campaign is ongoing at the time of this writing, although Israel has withdrawn most of its forces from Gaza, at least temporarily, and under threat of an assault on Rafah, the major Gazan city where the hostages are believed to be presently held (April 2024). Much of the world absurdly blames Israel for the lives lost on both sides because of the Hamas attacks, calling for an immediate ceasefire by Israel. This call is accompanied by baseless accusations against Israel of apartheid, occupation, repression and genocide. There is a cry to “free Palestine from the Jordan River to the Mediterranean Sea,” which actually is a call to obliterate Israel and replace it with yet another authoritarian and intolerant Arab, Islamist regime. There are few calls for Hamas to release the hostages, lay down their arms, and surrender. South Africa Invites a New Level of Biased Review, and the ICJ Obliges Though the Advisory Opinion proceedings remain ongoing, the ICJ has already shown that its bias against Israel remains alive, even in the wake of the massacre of October 7. On December 28, 2023, the Government of South Africa submitted an application to the ICJ against Israel under the Genocide Convention seeking to declare Israel’s responsive actions as genocide, while essentially ignoring the clearly genocidal acts Hamas committed in specifically targeting and attacking Israel, the only Jewish State in the world.5 A call for a unilateral cease-fire by Israel was included among the nine provisional measures requested by South Africa.6 Absent from the South African filings was any call for Hamas to release the hostages, surrender or initiate a cease-fire. The frivolity with which South Africa labeled Israel’s military campaign – which was launched in response to the bloodiest-ever attack on Israel’s civilians – as a genocide lies, inter alia, in the required genocidal intent element with its necessarily rigorous standard under the law. Article II of the Genocide Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a 3. B’nai B’rith International et al., Written Statement Submission, Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Case No. 2023/7, I.C.J., July 21, 2023, available at https:// www.bnaibrith.org/wp-content/uploads/2023/07/BBIICJ-Brief-7.21.2023.pdf 4. Richard D. Heideman and Joseph H. Tipograph, “How October 7 Should Inform Israel’s Clash at the International Court of Justice,” JUSTICE No. 70 (Fall 2023), pp. 24-29, at 24, available at https://www.ijl.org/ justicem/no70/24/ 5. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Application Instituting Proceedings, Dec. 29, 2023, I.C.J., 2023, available at https://www.icj-cij.org/sites/default/files/ case-related/192/192-20231228-app-01-00-en.pdf 6. Id., at ¶ 144 (1).

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