16 No. 78 JUSTICE ntroduction: A Gathering Storm For more than two decades, and with dramatically increasing intensity since October 7, 2023, the State of Israel has confronted a growing series of legal proceedings, quasi-legal measures, and political-diplomatic steps at the international level and in countries around the world. Taken together, these proceedings erode Israel’s international legitimacy and threaten vital national interests – from the operational freedom of its military, through damage to its political and economic standing, to the undermining of scientific, cultural, and academic cooperation. Although there is usually no formal connection among these disparate actions, strong interactions exist between them: for instance, findings by one body feed the factual and normative determinations of others, creating a self-reinforcing cycle whose cumulative impact far exceeds the sum of its parts. The common thread running through these proceedings is the invocation of international law – particularly the law of armed conflict, or international humanitarian law, and international human rights law – and the institutional mechanisms they enable, as instruments for advancing outcomes that constrain Israel. Some of these proceedings are promoted by actors whose agenda is expressly hostile to Israel; others by actors whose motivations are broader – a genuine concern for civilian protection, or the advancement of global accountability norms – but whose actions produce the same practical effect. Some have termed this phenomenon “lawfare”: the strategic deployment of legal language and processes by adversarial actors to accomplish objectives that cannot be achieved on the battlefield. In this sense, lawfare frequently serves as a complementary front to kinetic warfare – or to reverse the famous maxim of von Clausewitz, the use of the law as a continuation of war by other means. That characterization should not obscure a more fundamental reality. The international institutions involved – the International Court of Justice (ICJ), the International Criminal Court (ICC), UN bodies – are generally viewed as legitimate components of an international legal order to which many of Israel’s own allies are fundamentally committed. The challenge, therefore, is not simply to denounce these proceedings or institutions wholesale, but to understand the structural dynamics underlying them, to distinguish between meritorious legal concerns and politically motivated instrumentalization of law, and to formulate effective responses that protect Israel’s essential interests while preserving its standing as a state committed to the rule of law. This article surveys some of the main developments across these multiple arenas – international courts, national jurisdictions, and the broader quasi-legal and political landscape. It assesses the risks these proceedings pose and examines the forces driving their sharp escalation. Finally, it offers some high-level recommendations – given in our personal capacity, based on our involvement in these matters. The views expressed are our own.1 State of Play The ICJ Genocide case. The ICJ is the principal judicial organ of the United Nations, adjudicating disputes between states with legally binding effect for the parties. On December 29, 2023 – barely three months into the war – South Africa filed an application instituting proceedings against Israel, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide (1948).2 South Africa’s core claim is that Israel has Judged Among the Nations: Israel’s International and Foreign Legal Challenges After October 7 Eran Shamir-Borer and Ben Wahlhaus 1. This article draws on a forthcoming publication of the Israel Democracy Institute authored by Dr. Eran Shamir-Borer, Prof. Amichai Cohen and Adv. Mirit Lavi. I
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