Winter 2025 No.73 הארגון הבינלאומי של עורכי-דין ומשפטנים יהודים (ע״ר)
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, Justice (Ret.), Prof. (Argentina) Maurizio Ruben (Italy) Chief Executive Officer Hila Kugler Ramot (Israel) Head of the Legal Center for Combating Antisemitism Avraham Yishai (Israel) Special Projects Coordinator Mala Tabory, Dr. (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) 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, Justice (Ret.), Prof. (Argentina) Maurizio Ruben (Italy) Robert Garson (USA) Alan Sacks (Israel) Aleksandra Gliszczynska-Grabias, Prof. (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 (Ret.), 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, Prof. (USA) Suzanne Wolfe-Martin (Malta)
Winter 2025 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 2025 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. 73, Winter 2025 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 Shani Birenbaum Jennifer Farrell, Esq. Gavriella Lazarus Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 Cover Photo ״After the Party", by Tsibi Geva. 2023, Acrylic and collage on canvas, 178X178 cm. Courtesy of Ambassador John Rakolta Jr & Terry L. Rakolta / Transcending Conflict, currently on loan to the Israel Museum. Photo by: Elad Sarig Contents President’s Message Meir Linzen 2 Addresses ICC Arrest Warrants against Israeli Leaders Irwin Cotler 4 Israel and International Law: Developments and Trends in 2024 Gilad Noam 7 Antisemitism – The “Seismograph” of the Crisis in the Middle East Thomas Haldenwang 12 Distortion and Trivialization of the Shoah Michael Whine 16 Against the Mark on Cain's Forehead: An Address to the Families of the Hostages Hanoch Ben Pazi 20 Articles The Israel-Hamas War: Self Defense, Necessity and Proportionality Steven E. Zipperstein 21 ICC Arrest Warrants against Israeli Leaders: Remarks Concerning the Legal Process Yuval Shany 33 The ICC’s Arrest Warrants for Netanyahu and Gallant Steven E. Zipperstein and Sharon Mayer 39 Journalists in the Gaza War – A Neglected Issue of International Humanitarian Law? Wolff Heintschel von Heinegg 45 Thirty Years after the AMIA Bombing: Rulings, Resolutions and Initiatives by the Federal Criminal Cassation Court of Argentina Mariano H. Borinsky, Hernán Najenson, Laura F. Kvitko and Nicole Z. Amquie 51 AMIA − Thirty Years Later: The Sentence and a Matter of State Carlos A. Mahiques 55 From the River to the Sea: How the French Judge Enforced Israel’s Presence at the EURONAVAL Exhibition Marc Lévy 57 Academic Freedom and Antisemitism in UK Universities Matthew Bolton, Rosa Freedman and John Hyman 61 Edut 710: Documentary and Legal Considerations in the Collection of October 7 Testimonies Renana Keydar 71 Book Reviews Nazis, Islamic Antisemitism and the Middle East: The 1948 Arab War against Israel and the Aftershocks of World War II By Matthias Küntzel Reviewed by Efraim Karsh 74 Three Faces of Antisemitism: Right, Left, and Islamist By Jeffrey Herf Reviewed by Yehudit Barsky 76
2 No. 73 JUSTICE am writing this Message only a few days after the funeral of Shiri Bibas and her children, Ariel and Kfir, following the release of their bodies by Hamas. Shiri and her ginger-haired children, who became the symbol of “October 7,” had been kidnapped alive to Gaza and cruelly murdered by Hamas. The actions of Hamas on October 7, 2023 and the months that followed — murder, rape, kidnapping, and torture — brought back a chilling reminder of the horrors of the worst episode in the history of our People, the Holocaust. A few weeks ago, on January 27, 2025, in my capacity as President of the IJL and as the representative of my family, many of whom perished in the Holocaust, I participated in the events marking the 80th anniversary of the liberation of Auschwitz by the Red Army. At that event, the main speaker was Marian Turski, one of the last survivors of Auschwitz. Marian died very shortly afterwards, but his most famous saying is well remembered: “Auschwitz did not fall from the sky.” Following the event at Auschwitz, I represented the IJL at a conference that took place at the Polin Museum in Warsaw, titled “Denial, Distortion and Disinformation: The Truth about the Holocaust 80 Years after the Liberation of KL Auschwitz.” As its title suggests, the conference, which was attended by senior Polish government members and EU officials, as well as leading academics, dealt with the subject of Holocaust denial and distortion. It seemed to me that I was the only representative at the conference with any direct connection to Holocaust survivors. Unusually for me, my comments at the conference were more personal and emotional, rather than professional. I said the following: Was my mother, Ita, in the Warsaw Ghetto? Did she flee from the Ghetto? Was she captured by the Germans and imprisoned in the Labor Camp in Pioniki? Was she transported from there to Auschwitz? Was she transported from Auschwitz to BergenBelsen? Were three of my grandparents murdered by the Nazis? (My fourth grandparent was not murdered by the Nazis for the simple reason that he died before the war.) Did the Nazis murder ten of my aunts and uncles from both my mother’s and my father's side of our family? Did the Nazis murder my cousins whom I never met? And did they murder many tens of family members from both my father’s and my mother's side? For me, the subject of denying the Holocaust (denying, or merely diminishing it) is a matter of personal identity, and so it is for many thousands of Jewish families whose members and more distant relatives perished in the Holocaust. The denial of the Holocaust is the denial of my identity and the identity of millions of Jews. Beyond the terrible emotional impact of denying the Holocaust, there is practical significance. Denying the Holocaust and distorting historical facts provide legitimacy for continued antisemitic attacks against Jewish individuals and against the Jewish People. Before the horrors of the Nazis, history witnessed hundreds of years of persecution of the Jews. Sadly, after October 7, we witness a frightening increase in antisemitic attacks around the world, beginning with incitement on social media, demonstrations, threats, and physical attacks on Jews and Jewish institutions. I want to emphasize that these manifestations of antisemitism are not only in connection with Israel. We are confronting a Jewish issue. We cannot view this wave of antisemitic activity as just another act of incitement, however serious, or a straightforward hate crime or incident of violence. We have seen throughout history a continuum of antisemitic activities, from delegitimization, on to violence and to extermination, culminating in the greatest crime in the history of mankind. For that reason, we must not relate to Holocaust denial as just another example of “fake news.” Israel — the President’s Message I Meir Linzen Photo: Idan Gross
3 Winter 2025 State of the Jewish People — must defend the Jewish People even outside the borders of the State, notwithstanding the challenges that the State of Israel itself faces. Israel's Criminal Law grants the courts in Israel jurisdiction to try criminals for crimes committed against Jews for reasons of their Jewish identity. Section 13 (a) (2) of the Penal Law imposes an obligation on the law enforcement agencies, the criminal prosecution services and the judiciary in the State of Israel to fulfil this responsibility when the law enforcement agencies, the prosecution services and the judiciary in other States do not enforce laws on these matters. It is impossible to overstate the dangers of antisemitism. I quote the words of the late Rabbi Lord Jonathan Sacks, in his 2016 Address to the European Parliament: “What begins with the Jews never ends with the Jews… Antisemitism is not about Jews, it is about antisemites. It is about people who cannot accept responsibility for their own failures and instead have to blame someone else.” We must not view antisemitism as a matter of destiny or as some form of chronic disease with which we must live. The hatred of Jews brings only darkness, and no one should simply accept the phenomenon of antisemitism, for all the reasons that I have mentioned above. If we do not protest and fight against antisemitism, it is liable to bring about disaster far worse than antisemitic outbursts or any single antisemitic act. Legal action against all manifestations of antisemitism is only one of the means to fight this destructive phenomenon, but it is an important one. February 26, 2025
4 No. 73 JUSTICE commend the IJL for convening this very timely and significant forum, and for your effective amicus interventions before the Court. I am delighted to join Professor Yuval Shany, who I regard not only as a leading scholar-practitioner from Israel, but also a leading global scholar-practitioner of international human rights, humanitarian, and criminal law. I would like to share with you a narrative of Canada's and my own involvement with the ICC as a backdrop or looking glass into assessing and appreciating the recent actions by the Special Prosecutor to seek arrest warrants, and the decisions of the Pre-Trial Chamber to issue arrest warrants. As a law professor in the 1990s, I served as a Special Advisor to the Canadian government on its path towards advocating for an International Criminal Court (ICC), heading the Canadian delegation of “Rights and Democracy” in 1998 at the creation of the Rome Treaty in Rome, and then joined other Canadians, and indeed the international community, to celebrate the appointment of Philippe Kirsch, who was a close colleague of mine, as the first President of the ICC. In 1999, I was elected to Parliament, and one of my first acts in early 2000 was to co-sponsor legislation, the War Crimes and Crimes Against Humanity Act, to domesticate the Rome Statute in Canadian law and provide Canadian courts and Canada with universal jurisdiction. In 2002, together with the Parliamentarians for Global Action, we convened the first ever Parliamentary Assembly for an International Criminal Court, and then in 2005, as Minister of Justice and Attorney General, I initiated the first-ever prosecution of a Rwandan génocidaire, anchoring the prosecution in the Rome Statute and international criminal law. Fast forward to 2015, where I was part of a group of international lawyers that submitted an amicus brief with respect to the issue of jurisdiction saying that the ICC did not have jurisdiction over Israeli nationals because Israel was not a State Party, and Palestine did not have the constituents of a State under the Montevideo Convention; but even if it had, it did not have the authority to delegate criminal jurisdiction over Israeli nationals to the ICC because that would be in breach of the Oslo Accords themselves. Moving ahead to 2017, when − and this becomes very relevant to the analysis − I was appointed to an Independent Panel of Experts established by the Organization of American States to examine whether there are reasonable grounds to believe that Crimes Against Humanity were being committed by Venezuela. We determined, in 2018, that seven major Crimes Against Humanity were being committed, and following that, then Foreign Affairs Minister of Canada, Chrystia Freeland, initiated the first-ever collective referral of a State Party, i.e., Venezuela, to the International Criminal Court for prospective investigation and prosecution. In 2021, Karim Khan was elected as a Special Prosecutor for the ICC. We, in Canada, and myself as well, supported his candidacy, and I then began a close relationship with him. In 2022, the Raoul Wallenberg Centre for Human Rights, where I act as International Chair, invited Karim Khan to deliver the Elie Wiesel Lectureship in Human Rights. In December 2023, following the mass atrocities of October 7, 2023, we arranged for Karim Khan to visit the kibbutzim in the south of Israel, whereupon he shared his anguish and agony at what he heard and what he witnessed. At the same time, Khan spoke of Israel having a robust, independent judiciary which could be counted upon to engage in any appropriate accountability. In February 2024, on behalf of the Raoul Wallenberg Centre for Human Rights, we submitted a very extensive legal brief to Karim Khan at The Hague that included over a thousand pages of detailed and documentary evidence with respect to the involvement and complicity of Hamas leaders in the mass atrocities of October 7 and called for the prosecution of the Hamas leaders. All this is a looking glass into what occurred recently with Karim Khan seeking arrest warrants against Israeli leaders, and the Pre-Trial Chamber then responding by issuing those arrest warrants. ICC Arrest Warrants against Israeli Leaders* Irwin Cotler * This is an edited version of a presentation at a webinar on “ICC Arrest Warrants against Israeli Leaders – Legal and Practical Implications,” Dec. 3, 2024, sponsored by the IJL and the AAJLJ. I
5 Winter 2025 Recently, Canadian Prime Minister Justin Trudeau was asked “Will Canada enforce the arrest warrants?” and his answer was, in the backdrop of what I said, “Canada, as you know, is a founder of the Court, and we will abide by all decisions taken by the Court.” I met with the Prime Minister after that statement, in fact, just several days ago, and shared with him what I regarded as the standing breaches by the Special Prosecutor and the ICC of foundational principles of the ICC Statute, which would mandate Canada as a supporter of the Court, to call out these actions and hold them to account. Let me very briefly mention those foundational principles of which the Special Prosecutor and the Court have been in breach, and also continue the narrative. The first is the complementarity principle, which as we know, means that the ICC will not substitute its judgment where there is an independent judiciary and an independent legal system that is able and willing to undertake the necessary investigations. The second principle is that of cooperation, one which Karim Khan, to his credit, proudly espouses. Accordingly, I helped facilitate, at his request, meetings with the Israeli leadership to take place on May 20, 2024 so that the principle of complementarity could be engaged at the same time and in concert with the principle of cooperation, and so that Karim Khan could share with the Israeli leadership, and they with him, the steps to be taken to both adhere to the principle of complementarity and the principle of cooperation. Regrettably, and surprisingly, Karim Khan preemptively canceled the meeting scheduled for May 20 and instead convened a press conference on that day, in which he called for arrest warrants against Israeli Prime Minister Netanyahu and then Defense Minister Gallant, and against a Hamas leader, Mohammed Deif, who Israel had confirmed had been killed in an airstrike. As it happened, I was in Israel at the time and had been scheduled to meet and have dinner with Karim Khan on the occasion of his visit. This brings me to the last principle, which is equality before the law. Here the Venezuela connection that I referenced earlier becomes particularly timely and pertinent. Karim Khan, in April 2024, went to Venezuela and after discussions with President Maduro, Khan decided not to issue arrest warrants, even though our Independent Panel of Experts that I referenced before had issued a Third Report saying these crimes against humanity were continuing. In particular, the election in Venezuela that took place in July 2024, which was neither free nor fair, was accompanied by a total dismantling of any vestige of any independent legal system, judiciary, and the like, and included the arrest of those who sought to be candidates, etc. In other words, Karim Khan entered into an agreement with President Maduro not to issue arrest warrants against him and the Venezuelan leadership, though they were in standing breach of all principles of complementarity and the like, let alone its own crimes against humanity; but Karim Khan did decide to proceed to call for arrest warrants against Israeli leaders, even though, as I mentioned, the principles of complementarity and cooperation were being addressed by the Israeli leadership. Let me close by saying − at a point where Israel has appealed the ICC decision − that there are three things that have caused me some concern in the Israeli approach. The first is that Israel has not yet moved − and I recommended this even before the issue of ICC arrest warrants were even spoken of − to establish an Independent Commission of Inquiry into October 7, as well as an independent prosecutorial investigation of the charges in the arrest warrants sought by Karim Khan regarding Netanyahu and Gallant. In other words, this was in furtherance of the complementarity principle, of going after the particular defendants and the particular crimes. Regrettably, that was not done and has not yet been done, and I would recommend once again that it should be done. Second, Israel should not call out Khan for being an antisemite, as it has sought to do. I cautioned the Prime Minister about this when I met with him in May, which was after Karim Khan made the decision to call for the arrest warrants. As mentioned earlier, I felt this decision was a breach by Karim Khan of both the principles of complementarity and cooperation that he had previously espoused. The Prime Minister was understandably disturbed by the preemptive call by Karim Khan for arrest warrants and was going to portray Karim Khan as being “the antisemite” that he believed him to be. I advised the Prime Minister not to do this as I know Karim Khan well and he is not an antisemite, and by doing this, he will deflect away from the proper critique that can be made of Karim Khan’s decisions. Finally, I emphasized then, as I do now that one should not call out the ICC as being antisemitic. Rather, one should focus on how both the Special Prosecutor and the decision of the Pre-Trial Chamber breach its own foundational principles. Admittedly, those decisions have had the effect of incentivizing antisemitism, as I cautioned Karim Khan they would, and we now see it in the manner in which it has contributed to the weaponization of international law, which has been singling out Israel for selective
6 No. 73 JUSTICE opprobrium and indictment, whether it be decisions of the UN General Assembly, decisions of the ICJ, decisions of UN Special Rapporteurs, and the like. But all of these should be criticized on the merits. One can even make the argument that I have made that international institutions have been responsible for laundering antisemitism under the protective cover of the UN, under the authority of international law, under the culture of human rights, and under the framework of anti-racism. That can be made on the merits, but one should not, with regard to these specific indictments, begin to indict either the Special Prosecutor or the ICC as being antisemitic. I close by saying that right now, with a new presidentelect in the U.S. and with a bilateral condemnation in the U.S. of the decisions of both the Special Prosecutor and the ICC as being “outrageous,” and condemning what they have called “the false equivalence” between a genocidal terrorist organization like Hamas and a democracy, however flawed it may be, like Israel, that the path forward is going to be very dynamic in terms of the political configurations. I do believe that Israel has a strong case on the merits, and should make that case on the merits. n Irwin Cotler is International Chair for the Raoul Wallenberg Centre for Human Rights with whom he acts as counsel for the families of hostages and has made representations to the ICC, et al., on their behalf. He is a former Minister of Justice and Attorney General of Canada, longtime parliamentarian, and Canada's first Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism. He was present at the founding meeting of the IJL some 57 years ago and has been constructively engaged in its work ever since.
7 Winter 2025 t is always a pleasure to return to the Hebrew University, a place that has been my academic home for many years. Two decades ago, I wrote my Ph.D. here under the guidance of Professor Mordechai Kremnitzer and Professor Moshe Hirsch on the principle of complementarity. How little did I know that one day I would find myself signing off submissions to the International Criminal Court as an agent of the State of Israel, including submissions with respect to the Court’s adherence to the complementarity framework. For us international lawyers, the past year has been truly extraordinary. Today, we continue to witness significant and unprecedented developments, globally and with respect to Israel, which are of particular interest for anyone who specializes in international law. Throughout my career, I cannot recall a period when international law occupied such a prominent place in public discourse, dominating headlines and sparking daily debate. In turbulent times like these, it is all too easy to focus solely on the immediate – on the “here and now” – rather than pause to consider the bigger picture. This forum has always excelled in providing a broader perspective, taking a bird's-eye view on the events and developments shaping international law. I want to commend the organizers of this forum for upholding this important tradition and for giving us the opportunity to reflect on the events and developments of the past year. As we look back on 2024, one issue undeniably stands at the center of the stage: the ongoing war and the dire events that have accompanied us since October 7, 2023. Over the course of my remarks today, I will address three key topics: First, some preliminary reflections on navigating this unimaginable year as an international law practitioner; Second, the legal proceedings which were advanced in connection with the war, at the International Court of Justice (ICJ) and the International Criminal Court (ICC); Third, I would like to address a few other prominent examples of Israel's engagement in the international law arena this year. Reflecting on the past year, I believe that we are approaching a watershed moment in the field of international law. While it is difficult to speculate on the exact course that international law will take, we can envisage that the post-World War II order will undergo significant changes. Currently, two related trends dominate the international law discourse: first, a superficial understanding of the law; and second, growing politicization. Unfortunately, much of the public debate regarding international law has become increasingly superficial – a debate led by tweets rather than substantive discussions rooted in facts and concrete analysis. It has become a conversation designed to craft narratives and advance political agendas, rather than reflecting a genuine commitment to the law and to the international legal order. As a practitioner, these trends present significant challenges. International law has always been influenced by international politics, and much has been written about the intersection of politics and international law, including how far international law itself is shaped by political forces. However, for us international lawyers, international law is much more than a mere byproduct of politics. It has a value of its own as law, which should be applied equally, fairly and coherently in all situations. I am sure members of the academic community will agree that there is a pressing need to maintain the professionalism of international law. This requires sharp criticism, in-depth analysis, and debates centered on facts, as well as solid legal principles and rules. We have a responsibility to uphold the integrity of the field. This means scrutinizing decisions by institutions such as the ICJ and ICC on their merits – whether we eventually Israel and International Law: Developments and Trends in 2024* Gilad Noam * This is the (edited) Keynote Address delivered at the International Law Forum at the Hebrew University of Jerusalem Faculty of Law, opening the annual conference on “Year in Review: Israel and International Law: Recent Developments and Trends in 2024,” on December 31, 2024. I
8 No. 73 JUSTICE find ourselves agreeing with them or not – to ensure that international law remains grounded in legal foundations and resist pressures to cater to the prevailing political or public attitudes of the day. In this regard, I want to commend the Hebrew University and this esteemed forum for their steadfast commitment to fostering excellent legal education. Generations of lawyers, myself included, have benefitted from your dedication to training professionals equipped to uphold and professionally advance international law. Before I delve into the second topic, I would like to cite the words of former President of the Supreme Court, former dean of this faculty and most recently, former Judge ad-hoc at the ICJ, Aharon Barak, in which he saw fit to remind his fellow judges at the International Court of Justice of some fundamental cornerstones of every judicial institute. He began by acknowledging that: The Court is in a difficult position and facing great pressure. Even so, the Court should not have sacrificed the integrity of the Genocide Convention and overstepped the limits of its jurisdiction in response to public pressure. He went on to say: The only way that I found to be truthful as a judge was to leave aside the “background noise” and focus purely on the legal reasoning. This is the only common language that we judges have. We cannot be bothered by political, military or public policy troubles. We can only be concerned with legal troubles. We are a court of law, not one of public opinion. When we judges sit at trial, we also stand on trial. We will not be judged by hysteria and the fleeting waves of the hour, but by history. The Legal Campaign Against Israel As is well known, at the end of December 2023, South Africa initiated proceedings against the State of Israel in the ICJ, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide in connection with Israel’s actions during the war in the Gaza Strip. Just a few weeks after the October 7 atrocities, while in the midst of a war against a barbaric terrorist organization that has vowed publicly to repeat attacks like October 7, Israel found itself in the unimaginable position of being accused of the gravest crime of all before the World Court. It is a clear case of abuse of the Genocide Convention, the importance and significance of which needs no elaboration. South Africa's main aim was to delegitimize the existence of the Jewish state and to smear Israel with the gravest accusations. In addition, South Africa sought to exploit the ICJ procedures to prevent Israel from defending itself. The accusation of genocide is so farfetched, so absurd and disingenuous, that it begs the question – does it even justify a response? Upon being notified of the proceedings, we faced the question as to what advice should be given to the decision makers on the correct response. The decision to appear in such proceedings was far from obvious. We faced harsh and egregious accusations against Israel, along with South Africa’s request for the Court to order Israel to immediately suspend its military operations in Gaza – effectively demanding that Israel cease defending itself, while Hamas is free to reestablish itself and pursue additional attacks. Ultimately, the decision was made for Israel to appear before the Court and present its case. Without Israel’s presence and active participation in these proceedings, the Court would not have been presented with the undeniable truth: that Israel’s war is with Hamas, not the Palestinian people; the Court would not have received evidence on Hamas's military strategy, founded on embedding its assets and operatives among the civilian population; it would not have been reminded of Israel’s inherent right to take all legitimate measures to defend its citizens and secure the release of the hostages; the Court would not have been shown that Israel is operating within the boundaries of international law, while Hamas blatantly disregards the same international law. South Africa has also sought to exploit the relatively low threshold required for the issuance of provisional measures, and it has filed requests for such measures on several occasions since the initiation of the proceedings. While the Court has partially granted some of South Africa’s requests, South Africa has so far failed in its attempts to convince the Court to issue an order for the immediate suspension of Israel’s military operations in the Gaza Strip, which would have been a lifeline for its ally Hamas. On October 28, 2024, South Africa submitted its Memorial. The deadline for the submission of the CounterMemorial is July 2025, and a lot of work still lies ahead of us.
9 Winter 2025 I would like to share some more personal reflections from The Hague. I do not recall any other event in which so many Israelis engaged with international law, especially through a live broadcast. If we needed a reminder of the importance of our presence in The Hague, it came in the form of a delegation of hostage families who attended the hearing. We had the privilege of speaking with them before and after the session. I should note that this is not the only proceeding before the ICJ involving Israel. Earlier in 2024, the Court issued an advisory opinion on the so called “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.” Additionally, just recently, the UN General Assembly adopted a resolution requesting a new advisory opinion of the ICJ regarding Israel’s obligations towards the UN, international organizations, and states in relation to the West Bank, Gaza Strip, and East Jerusalem. The Court risks becoming overwhelmed with a disproportionate focus on Israel, which has already been a characteristic of one-sided, politically motivated bodies of the UN. Such a trend would not serve the interests of preserving the ICJ’s reputation as a reliable dispute resolution mechanism, would not mitigate any of the tensions in the region, and would not advance in any way the purpose of promoting peace and stability. The obsessive preoccupation with Israel in international judicial forums is even more absurd when considering that the courts in Israel are open to receiving petitions requesting scrutiny of numerous legal aspects arising from the war, even while the war is still ongoing. The ability to adjudicate such a complex legal and factual issue during an ongoing war reflects the strength of Israel's judicial system. I do not think we should take this for granted. Even during war, the law is not silent. I will now address developments at another international court in The Hague, the ICC. For many years, the Palestinian Authority has been putting the ICC at the forefront of its strategy of pursuing its goals through unilateral action in international fora, hoping to use the ICC to demonize Israel in the eyes of the world, and to have the ICC weigh in on core issues regarding the Israel-Palestinian conflict. Space does not permit me to elaborate on the history of attempts to drag the ICC into the Israel-Palestinian conflict; nor on the preliminary decision on jurisdiction made by the Pre-Trial Chamber in 2021, which has significance when considering the current developments. Following this decision, the previous Prosecutor, Fatou Bensouda, announced in March 2021 the opening of an investigation into the “situation in Palestine.” The current Prosecutor, Karim Khan, inherited this investigation from his predecessor, but it was only the October 7 attacks and the events that followed that led to the Prosecutor’s decision of May 2024 to apply for arrest warrants against Israel’s Prime Minister, Benjamin Netanyahu, and then Minister of Defense, Yoav Gallant, for alleged war crimes and crimes against humanity in connection with the war in Gaza. On November 21, 2024, the Pre-Trial Chamber authorized the request and issued the arrest warrants against the Israeli leaders, as well as against Mohammed Deif, a top Hamas terrorist who had been confirmed dead by the IDF a few months earlier. On the same day on which the arrest warrants were issued ex parte and under seal, the Pre-Trial Chamber also issued two separate decisions in which it rejected two objections which were made by Israel in official submissions before the Court on the issues of jurisdiction and complementarity. It is noteworthy that Israel has appealed the Pre-Trial Chamber’s decisions on jurisdiction and complementarity, and has also requested the suspension of the arrest warrants in the interim. As of now, the matter remains pending before the Appeals Chamber. I wish to highlight some particularly troubling aspects of the Prosecutor’s treatment of Israel and of the Pre-Trial Chamber’s decisions. First, Israel has always been willing, even though it is not a State Party to the ICC, to engage with the Prosecutor and provide information regarding its commitment to the rule of law and the numerous challenges we face in combating the murderous terrorist organization Hamas and its cynical use of the civilian population. Unfortunately, Israel’s willingness was met by the Prosecutor’s rushed and scandalous request to the Pre-Trial Chamber. In requesting arrest warrants, the proceedings take place ex parte and are considered only on the basis of information provided by the Prosecutor under a rather low evidentiary threshold. Second, the jurisdictional issues pertaining to the socalled “situation in Palestine” had not been sufficiently resolved in 2021. The Pre-Trial Chamber rejected Israel’s substantive submissions on jurisdiction in a short, laconic decision, based on procedural grounds, asserting that Israel’s right to challenge the Court’s jurisdiction in this case would only become operative after the issuance of the arrest warrants, and without addressing Israel’s arguments on the merits. The Pre-Trial Chamber also made the dubious claim that the 2021 jurisdiction decision – which was preliminary in nature, and was ex parte in the sense that only the Prosecutor had standing in those
10 No. 73 JUSTICE proceedings and has never received appellate review – had become “res judicata.” The Pre-Trial Chamber also ignored the fact that the 2021 decision expressly reserved issues that were now raised by Israel in its submissions to more advanced stages of the proceedings. As a consequence, the Pre-Trial Chamber has effectively invalidated a state’s right to bring forward a jurisdictional challenge prior to the issuance of arrest warrants, notwithstanding the severe repercussions that such a decision may entail to its sovereign rights, as well as the rights of the persons concerned. Third, the Pre-Trial Chamber rejected Israel’s argument that the Prosecutor was under obligation to give Israel a new or additional notice, as required by Article 18 of the Rome Statute, regarding his intended investigation into the events following the October 7 attacks. The nature and character of the events investigated since October 2023 are entirely different from the scope of the investigation that had been initiated in 2021. The judges decided that Israel did not have the right to receive a new notice, thus depriving Israel of the opportunity to assert its rights under Article 18 of the Rome Statute. As stated, Israel, despite its status as a non-Party State and despite its position regarding the lack of jurisdiction of the Court, was open to receiving information from the Court, to examine any facts and investigate if needed. One would have thought that the Prosecutor’s own investigation could have benefited from such an approach, as it would have allowed the Prosecutor to establish a better understanding of the relevant facts as they pertain to issues which are not within the public domain. Instead of encouraging the Prosecutor to work with Israel and explore the possibility of domestic action in the spirit of complementarity, the Chamber reached a result that is antithetical to the purposes of the complementarity framework upon which the Rome Statute system is founded. Not least important, the Pre-Trial Chamber completely disregarded the fact that Israel has a well-functioning, independent legal system, that is capable and willing to investigate, and when necessary prosecute, alleged violations that arise in the context of military operations, and which also provides for a robust judicial review of governmental actions by the Supreme Court, including professional and independent mechanisms to investigate specific incidents and policylevel issues. As I mentioned, we have appealed these decisions. Israel’s decision to take part in these proceedings, as a non-Party State to the Statute, was not an obvious one and should not be taken for granted. The light-handed manner in which the Chamber brushed aside Israel’s legitimate arguments doesn't help to solidify trust in the fairness and professionality of this institution. It should be noted that the Pre-Trial Chamber invited the submission of amicus curiae on the question of jurisdiction. States, organizations and individuals have submitted briefs to the Court. In this regard, states such as the United States and Germany raised similar objections before the Court, which were likewise ignored by the Pre-Trial Chamber. This is not the way for the Court to demonstrate that it has properly implemented the Rome Statute as required, and to garner legitimacy and support for its decisions. We expect the Appeals Chamber to intervene in this issue to assure the proper application of the Rome Statute and restore the Court’s integrity. We also consider it important that states and the academic community speak out more in this regard. True supporters of the international criminal justice project should be able to express legitimate criticism of the Court and its functioning. Participation in International Forums After discussing mainly legal proceedings before international tribunals, I would like to elaborate on other unique aspects of our work. As I mentioned, it is important to take a bird’s-eye-view on the developments in the international legal sphere. In my department, we are also working on issues that are not related to the war, but rather aimed at strengthening Israel’s position within the international community. I shall briefly mention three prominent projects in which we were involved during 2024. CAI In March 2024, after two years of negotiations, the Council of Europe finalized the text for a new framework convention on Artificial Intelligence. It is the first treaty that explicitly addresses adverse effects on human rights, democracy and the rule of law that may arise from the use of AI systems. This represents a significant milestone, and a great example of our role as international lawyers. The new framework convention focuses on civilian public sector uses of AI. It does not create new human rights obligations, but it connects existing obligations with known AI risks, such as discrimination and privacy. The main field in which the Convention innovates is in its requirement for States to implement a risk management framework and to provide remedies to individuals. One controversial issue discussed in the negotiations was whether the convention should apply merely to the
11 Winter 2025 public sector or to the private sector as well. States such as the U.S., the UK, Canada, Japan and Israel, stated that the provisions of the Convention, as drafted, were not suited to private sector application, following our concerns that they could potentially stifle innovation of AI. This issue was resolved only at the very end of the negotiations, as the final text enables States to apply their provisions to the private sector, but does not require them to do so. Israel, despite its status as an observer State, was active in the negotiations. We aligned our efforts with those of likeminded States, such as the U.S., the UK, Canada and Japan, in urging for the text to provide the flexibility we needed. This shows the importance of taking an active part in international legal forums, and the influence it may have on international and domestic legal principles. The International Commercial Arbitration Law Lawyers from the Office of the Deputy Attorney General (International Law) are regularly involved in UNCITRAL working groups, the UN Commission on International Trade Law. In February 2024, the Knesset adopted the UNCITRAL Model Law on International Commercial Arbitration, and incorporated it into Israeli law. This marks the end of a long working process, and another significant step in fortifying Israel's stance within the international legal community. The International Commercial Arbitration Law marks a significant enhancement of our legal infrastructure. In adopting the law, Israel joined more than 120 jurisdictions worldwide in ensuring that international arbitration proceedings in Israel adhere to global standards while providing legal certainty and a streamlined process. The new law will enhance the efficiency and autonomy of arbitration proceedings, sending the message that Israel is committed to fostering a favorable environment for international trade and investment. We hope to soon publish draft regulations for the new law for public comments. Singapore Convention on Mediation Israel played a pivotal role in drafting the United Nations Convention on International Settlement Agreements, commonly known as the Singapore Convention. Israel was one of the first countries to sign the Convention. Following the signing of the Convention, our office spearheaded the efforts to amend the Courts Law which was amended in July 2024, to create the necessary legal framework to enable the ratification of the Convention. I am happy to say that following this amendment, Israel became a party to the Convention. The Singapore Convention addressed the uncertainty surrounding the enforcement of international commercial mediation agreements and creates a unique pathway for the enforcement of international mediation agreements in courts within the State Parties, assuring parties that their settlement will be upheld in the countries that are signatories to the Convention. This development not only positions Israel prominently on the global stage but will very likely foster the expansion and advancement of the use of international mediation by Israeli companies to resolve dispute with foreign counterparts. Closing Remarks These few topics constitute but a glimpse of the work we have done since last year. Just as I could not anticipate the events of 2024, I am sure that the year of 2025 will also bring new challenges, as well as opportunities, in the regional and global spheres. I take this opportunity to acknowledge the hard work of our partners – and especially the inter-agency teams, including the Israel Ministry of Foreign Affairs, the National Security Council, the international law department at the IDF MAG Corps, the Ministry of Defense and others – who worked tremendously hard this year. I want to share with you the secret of my department’s achievements this year – the excellent and devoted employees in the department, who worked tirelessly to uphold and advance international law in Israel. Nothing would have been achieved without them. Lastly, and most importantly, while we are here discussing all these important matters, 100 men and women are still being held hostage in Gaza, in complete disregard of basic human rights. I utilize this opportunity to extend my wishes for the safe return of all the hostages and for the speedy and complete recovery of all of the injured. Let us pray for more peaceful days to come. n Dr. Gilad Noam heads the Office of the Deputy Attorney General (International Law), which advises Israel's government on all aspects of public international law. As Deputy Attorney General (International Law), Dr. Noam leads the department's participation in international forums, including international judicial institutions. Among other things, Dr. Noam served as a Co-Agent on behalf of the State of Israel in proceedings before the International Court of Justice this past year.
12 No. 73 JUSTICE ntroduction and Expression of Solidarity Antisemitism is exactly what it claims to be: a deadly threat to Jews – and nothing else. This clear statement made by the great Jewish political scientist and philosopher, Hannah Arendt, aptly describes the essence of antisemitism: it is an invitation to evil prejudice, to vicious hatred, and to the diabolical destruction of innocent people! The manic obsession with which antisemites, through the ages, have cultivated their conspiracy theories and come up with ever new ideological narratives for hatred of Jews must never distract us from the sinister truth: antisemitism has been — always and in every form — a deeply unenlightened force that speaks to the basest instincts and that has given a license for brutality and vulgarity through the centuries. Hannah Arendt warns us that antisemitism — behind all its ideological, pseudo-religious and pseudo-scientific smoke and mirrors — ultimately focuses on only one thing: persecuting and destroying Jewish life. Jewish people know this only too well from bitter experience! Hence, the foundation and the prosperity of the State of Israel was the visible expression of the intention to never again become the helpless object of antisemitic persecution, but to be the master of its future history. “Never again,” in this context, always meant “never again defenseless!” However, one year ago on October 7, 2023, the most despicable and malicious act of Hamas led to what was as unthinkable as it is unforgiveable: the mass murder of innocent people — citizens of Israel — on their own soil through brutal terrorist attacks perpetrated by air, sea, and land. The figures alone — almost 1,200 killed, thousands injured, and more than 240 hostages of all ages and sexes in the hands of their tormentors — can only quantify the horror. The real dimension of this massacre is quite simply beyond any description! In a time already filled with serious news and sad images, the horrific news and images that reached the global public from Israel and the Gaza Strip were unprecedented and deeply shocking. I know that the images and evidence not only do not leave room for doubt about the atrocities committed by Hamas, but also raise irreparable doubts when it comes to believing in the humanity of the perpetrators. The terrorists, in their diabolical efforts to publicly humiliate and degrade their innocent victims, instead showed their own disgusting dehumanization. On October 7, nothing less than an abyss of evil opened up, as the barbaric core of antisemitism and terrorism merged in a perverse way: hatred, bloodlust, and the wish for destruction. All sceptics and critics of the Israeli doctrine were taught in a drastic way that, in the end, robust security alone offers protection from antisemitism and terrorism. They have to acknowledge that the emphatic appeal “Never again!” becomes an empty phrase at the moment when it does happen again! It is all the more shameful that antisemitism, in keeping with its nature that is resistant to reality, once again successfully connects with the currently influential schools of thought, such as politically activist post-colonialism. It was absolutely revolting to see, especially after such a short period of time, that the mass murder perpetrated by a fanatical religious terrorist organization was toned down and reinterpreted as a struggle for freedom — by a gang of murderers who openly committed and flaunted rape and desecration. Let me refer once again to Hannah Arendt, who — in a much-noticed TV interview in 1964 — attached great importance to stating precisely what really shook Jews to the core after the Nazis seized power. Antisemitism – The “Seismograph” of the Crisis in the Middle East* Thomas Haldenwang * This is an edited version of a Keynote address delivered at the World Summit on Counter-Terrorism, ICT’s International Conference 2024, Reichman University, Herzliya, October 7, 2024. I
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