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AIJAC pleased ICJ permitted Israel’s just war of self-defence against Hamas to continue

Jan 27, 2024 | AIJAC staff

The International Court of Justice prepares to deliver its findings on Jan. 26.
The International Court of Justice prepares to deliver its findings on Jan. 26.

Yesterday’s decision of the International Court of Justice (ICJ) in its preliminary orders regarding South Africa’s case against Israel was a mixed result, but the most important aspect was that there was no order for Israel to cease its just military campaign in Gaza, the Australia/Israel & Jewish Affairs Council (AIJAC) said today.

AIJAC Executive Director Dr Colin Rubenstein said, “We are pleased that South Africa’s cynical and outrageous attempt to abuse the Genocide Convention to prevent Israel pursuing its war of self-defence against the Hamas terrorists has failed.

“If the South African case had succeeded, it would have meant that Israel had no right to self-defence against a genocidal enemy whose murderous intentions are openly declared, which operationalised those intentions in an unprovoked wave of mass-murder on October 7 and which also openly says it will continue to seek to carry them out in the future.

“Such a decision would have given a huge boost to the Hamas terrorists who started this war, and employed the cruel strategy of provoking conflict against Israel and then deploying their military assets in a way guaranteed to cynically sacrifice the lives of Gaza’s civilians to try to damage Israel’s reputation and isolate it internationally. Terrorist groups around the world would then have sought to imitate Hamas’ unprecedented success in essentially gaining the UN’s endorsement of its war crimes. This would have severely undermined the right in international law of all states to self-defence.

“The South African Government should be strongly condemned for its appalling attempt to achieve an outcome that would have been so unjust and so detrimental to the cause of world peace, and would have also represented an utter debasement and betrayal of the spirit of the landmark Genocide Convention.

“We are also very pleased that, crucially, the Court called for the hostages in Gaza to be released immediately and without preconditions.

“However”, Dr. Rubenstein continued, “we are disappointed that the Court determined there was a ‘plausible’ case that should be heard that Israel was committing some acts of genocide in Gaza – even though ‘plausibility’ is a low bar, and the Court stated this interim finding did not prejudice its ultimate findings on the substantive issues in the case. Any objective observer who watched the two sides present their cases to the Court would have seen the deficiencies, misrepresentations and falsehoods in the South African case, and how comprehensively and convincingly the Israeli representatives answered and rebutted all of the South African allegations.

“There is clearly no plausible argument that Israel is committing genocide as alleged. It targets only Hamas military infrastructure, and makes great efforts to minimise civilian casualties, including through warnings to evacuate, establishing safe zones, and pausing military activity for hours each day to allow residents to seek food and water. It is also allowing all aid that arrives at Gaza’s borders to be delivered.

“It was notable that the Court took as the gospel truth the claims of various UN functionaries who have shown considerable bias against Israel, but did not even mention the Israeli submissions about the steps it has taken to avoid civilian deaths and the cynical and illegal Hamas human shield tactics that make these tragic deaths inevitable. This calls into question the Court’s ability to serve as a truly independent and impartial judicial body, as opposed to a political organ of the non-democratic nations that dominate and abuse the UN.

“The Court also seemingly ignored the settled principle of international law that civilian buildings that are used for military purposes lose their protected status, and relied on comments from Israeli leaders in the immediate aftermath of the October 7 attacks to demonstrate possible genocidal intent, even though most of these comments were taken out of context – applying them to all Gaza residents when the speaker was referring only to Hamas – superseded by subsequent words or actions, or made by people not responsible for the conduct of the war.

“However”, Dr Rubenstein concluded, “having made this finding of ‘plausibility’, the Court could have ordered Israel to suspend its military operations pending a final decision, as it rightly did in relation to Russia when finding a plausible case Russia had committed acts of genocide in its invasion of Ukraine. So we are pleased it at least had the wisdom to refrain from giving the Hamas terrorists and their South African backers any such monumental and unwarranted victory.”

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