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.
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