{"id":39335,"date":"2024-02-25T17:59:31","date_gmt":"2024-02-25T17:59:31","guid":{"rendered":"https:\/\/www.africa-press.net\/mauritius\/all-news\/its-debatable-should-court-dismiss-claim-israel-committing-genocide-in-gaza"},"modified":"2024-02-25T17:59:31","modified_gmt":"2024-02-25T17:59:31","slug":"its-debatable-should-court-dismiss-claim-israel-committing-genocide-in-gaza","status":"publish","type":"post","link":"https:\/\/www.africa-press.net\/mauritius\/all-news\/its-debatable-should-court-dismiss-claim-israel-committing-genocide-in-gaza","title":{"rendered":"It’s Debatable: Should court dismiss claim Israel committing genocide in Gaza?"},"content":{"rendered":"

Africa-Press – Mauritius. <\/strong><\/span>On Oct. 7, 2023, Hamas terrorists broke a ceasefire, invaded Israel, and committed the greatest massacre of Jews since the Holocaust. The European Commission President later noted: \u201cThere was no limit to the blood Hamas terrorists wanted to spill.<\/p>\n

They went home by home. They burned people alive. They mutilated children and even babies. Why? Because they were Jews. Because they were living in the State of Israel.<\/p>\n

And Hamas\u2019 explicit goal is to eradicate Jewish life from the Holy Land. . . . \u201d At the same time, Hamas indiscriminately targeted Israeli communities with 3,000 rockets. Consistent with its charter calling for Israel\u2019s destruction, Hamas officials vowed to launch similar attacks again and again.<\/p>\n

<\/a>To prevent future pogroms, Israel declared war on Hamas and attacked Hamas in Gaza.<\/p>\n

Within days, thousands of Hamas\u2019 supporters accused Israel of genocide, and in December, Hamas ally South Africa filed proceedings with the International Court of Justice (ICJ) accusing Israel of violating the Genocide Convention.<\/p>\n

It sought a provisional order directing Israel to suspend its military operations. As Ruth Wisse of the Tivah Fund stated: \u201cSouth Africa . . . accused Israel of committing genocide for defending itself against the explicitly genocidal attacks of Hamas.<\/p>\n

\u201d The ICJ declined to issue the provisional order, but it refused to dismiss the case. To violate the Genocide Convention, a party must intend to destroy, in whole or in part, a national, ethnical, racial or religious group.<\/p>\n

South Africa must prove by \u201cevidence that is fully conclusive\u201d that Israel intends to commit genocide and that its combat operations constitute genocide.<\/p>\n

<\/a>First, there is no evidence Israel intends to commit genocide.<\/p>\n

South Africa relied on several angry statements made by Israeli officials immediately after October 7\u2014most from outside the military chain of command.<\/p>\n

Ignored are statements by those conducting the war, particularly orders given to the Israeli Defense Force (IDF) that its attacks be solely directed at military targets.<\/p>\n

IDF soldiers disobeying these orders are subject to criminal prosecution and imprisonment, unlike the mobs who grotesquely cheered Hamas\u2019 massacre of Israeli civilians. Second, the IDF has followed these orders.<\/p>\n

Combat in an urban environment is extraordinarily challenging, and in Gaza made more difficult by Hamas\u2019 use of hospitals, mosques, schools, and civilian homes for its combat operations, including command centers and weapons-storage. These facilities thereby become legitimate military targets.<\/p>\n

Provided the IDF takes precautions to protect civilians, such as warning them to leave these areas, and ensures attacks do not cause incidental harm to civilians excessive to the anticipated military advantage, Israel may attack these facilities, sometimes making civilian casualties unavoidable.<\/p>\n

The death of innocent Gazans should enrage all people, but these deaths are the direct result of the way in which Hamas fights this war. And because of the IDF\u2019s care in conducting its military operations, the ratio of civilians to Hamas combatants killed\u2014albeit tragic\u2014is remarkably small: of the 27,000 killed to date, 10,000 are Hamas combatants\u2014a ratio of 1.5 to 2 civilians for every Hamas terrorist killed.<\/p>\n

This ratio is markedly lower than the international average of 9 civilians to every one combatant. Moreover, given that Gaza has a population of 2.1 million, the total number of deaths belie any Israeli intent or conduct constituting genocide.<\/p>\n

Third, Hamas has hundreds of miles of tunnels under the Gaza Strip. One should wonder\u2014particularly those fervently supporting Hamas\u2014why Hamas did not place Gaza\u2019s vulnerable populations (i. e. , women and children) in the tunnels to protect them from air strikes and artillery fire.<\/p>\n

The answer is clear: Hamas recognized an Israeli response to its atrocities would result in civilian casualties; indeed, it counted on civilian deaths to serve its strategic objective of causing international outrage and forcing a ceasefire so that it could reconstitute and attack Israel again.<\/p>\n

The ICJ should not fall into this trap that Hamas has set. This may be the most difficult debate argument for me to make in my many years of writing this column.<\/p>\n

For starters, I was revolted by the unprovoked attacks by Hamas on innocent Israelis, many of them women, celebrating at a music festival. As a Jewish American with over 60 family members murdered in the Holocaust, my visceral reaction to this hellish act was indescribable.<\/p>\n

If I stood in the role of the Lord God of the Old Testament, we would be debating the extent of \u201cBiblical justice\u201d akin to the falling walls of Jericho.<\/p>\n

<\/a>Well \u2013 it is a good thing I do not serve in that celestial role.<\/p>\n

I am but a lawyer and a fairly old one at that. My practice as an advocate spans almost 40 years and I hail back to my first job in the Reagan Administration.<\/p>\n

As lawyers \u2013 which Rick knows well as an esteemed professor – we are trained to respect the rule of law notwithstanding the volatility or malicious nature of the claims involved.<\/p>\n

We must be procedure bound to ensure that the rule of law, albeit international, applies to all. Rick\u2019s commentary races ahead of any trial or even presentation of the evidence to exculpate Israel before the first witness is ever called.<\/p>\n

As much as I am motivated like Rick to rush to judgment, we must remember that we are a law-abiding country \u2013 or at least should be. That said, we must comply with the International Court Rules of Procedure and Evidence and consider the extensive legal brief filed by the Republic of South Africa.<\/p>\n

Admittedly, much the single-space minute font 84 pages reads like a grotesque playbook for Hamas. As expected, it is skewed, one-sided, and impossible to read (at least for me) in the absence of blood pressure medicine and Tums.<\/p>\n

<\/a>However, the critical issue which dictated the decision of the International Court of Justice (ICJ) to deny Israel\u2019s motion to kick out the proceedings deals with the singular procedural issues as to whether the tribunal had \u201cjurisdiction\u201d hear this dispute.<\/p>\n

Like it or not, both Israel and South Africa are parties to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and subject to the jurisdiction of the IC.<\/p>\n

Specifically, and crucially, Article IX provides that \u201cDisputes between Contracting Parties, relating to the interpretation, application or fulfillment.<\/p>\n

. including those relating to the responsibility of a state for genocide. . . shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. \u201d<\/p>\n

Therefore, the only issue to be decided at this juncture before the ICJ is whether it has jurisdiction to consider the \u201callegations of genocide\u201d proffered by the Republic of South African against Israel.<\/p>\n

This is an entirely proper legal request under the ICJ Rules of Evidence and Procedure. Accordingly, on Jan. 26, the ICJ denied Israel\u2019s request for dismissal of the South African petition. It had every legal right to do so.<\/p>\n

<\/a>As much as I distrust the ICJ, particularly in light of the allegations against the UN for its Hamas complicity, it has the jurisdiction to conduct proceedings which Israel agreed to.<\/p>\n

If there are allegations of bias which may be likely in this case, Israel can raise the issues at the proceeding and upon appeal as set forth in the rules of procedure.<\/p>\n

Of course, it could also withdraw from the UN and the jurisdiction of the ICJ, but at what price to other countries? In life and jurisprudence, you can\u2019t have your cake and eat it, too. You either play by the rules or remove yourself from the protections of international law.<\/p>\n

Rick raises great points as to why Israel should not be held liable for alleged genocidal acts, but he is incorrect in litigating those issues now before a trial has even been set and without the presentation of evidence.<\/p>\n

The ICJ was correct in its ruling that it had jurisdiction to consider the case brought by the Republic of South Africa against Israel and its rejection of Israel\u2019s request that the case be dismissed.<\/p>\n

<\/a>Rosen – 2 I agree with Charles\u2019 argument that the ICJ had the \u201clegal right\u201d to deny Israel\u2019s request to dismiss South Africa\u2019s application.<\/p>\n

The issue is whether it should have done so when there was no evidence that Israel has acted with genocidal intent or committed genocidal acts. The only answer is that the ICJ should have dismissed the case.<\/p>\n

Hamas started this war. Hamas intended genocide\u2014the destruction of Israel and its people. Its Covenant explicitly says so. Israel had a choice: it could do nothing or it could exercise its inherent right of self-defense under Article 51 of the UN Charter by eliminating Hamas\u2019 genocidal threat.<\/p>\n

Rather than waiting for its people to be destroyed, it chose the latter. In responding, Israel might have simply indiscriminately bombed Gaza and, as journalist Ami Horowitz noted, \u201cturned Gaza into glass in a day.<\/p>\n

\u201d Instead, Israel employed ground troops to root out Hamas, risking its soldiers\u2019 lives to minimize Gazan civilian casualties. When the IDF entered the Gaza Strip it encountered an enemy deeply embedded in and below Gaza\u2019s civilian population centers.<\/p>\n

John Spencer, Chair of Urban Warfare Studies at West Point\u2019s Modern Warfare Institute, stated: \u201cNo military in modern history has faced over 30,000 urban defenders in more than seven cities using human shields and hiding in hundreds of miles of underground networks purposely built under civilian sites, while holding hundreds of hostages.<\/p>\n

\u201d Professor Spencer found that Israel \u201chas implemented more measures to prevent civilian casualties than any other military in history.
\n<\/a>While minimizing the impact of Hamas\u2019 horrendous Oct. 7 attack on Israel, the ICJ completely ignored both Israel\u2019s lawful right of self-defense and the combat environment in which it operates.<\/p>\n

By refusing to dismiss the application, the ICJ has lent tacit support to Hamas\u2019 use of Gaza\u2019s civilians to shield its military assets and operations.<\/p>\n

Indeed, the ICJ gave Hamas a moral victory, and for the moment, its approbation of Hamas\u2019 purposeful endangerment of Gaza\u2019s civilians. Moster – 2 I agree with every point Rick has made about the barbaric acts committed by Hamas.<\/p>\n

However, the legal issue we are debating is whether the ICJ should have dismissed the action brought by the Republic of South Africa against Israel. Unfortunately, the factual arguments on the merits were not dispositive to the proper determination of the ICJ not to dismiss the action.<\/p>\n

Although that sounds outrageous to probably all of our readers, the legal issue before the ICJ was simply whether the court had \u201cjurisdiction\u201d to consider and adjudicate the dispute.<\/p>\n

Given that both Israel and the Republic of South Africa are members of the UN and signatories to Article IX of the Genocide Convention, they are required to submit all disputes to the ICJ once filed.<\/p>\n

As much as we find the legal claims of South Africa reprehensible, it was allowed to do so under international law and Israel is bound to participate as long as it remains a member of the UN.<\/p>\n

<\/a>This concept is the bedrock of legal practice well known to lawyers in the U. S and abroad.<\/p>\n

In Texas state courts, there is a basis to kick out or dismiss a case once it is filed if \u201ca cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought.<\/p>\n

\u201d That is a very difficult test to meet. In such a situation, the facts or defenses alleged by the non-claimant, the defendant, have no bearing on whether a dismissal is granted.<\/p>\n

The focus is entirely on whether the plaintiff\u2019s allegations \u201ctaken as true\u201d would support the claim asserted. In such a situation, the court would never consider the facts presented by the defendant \u2013 in our debate \u2013 allegations made by Israel.<\/p>\n

Therefore, the allegations posited by the Republic of South Africa would be taken as true for purposes of applying the applicable standard and would withstand dismissal \u2013 unfortunately.<\/p>\n

To make matters worse for Rick, I was unable to find a procedure for seeking dismissal under the ICJ rules based on the insufficiency of the claims alleged.<\/p>\n

Therefore, the only legal issue before the ICJ was whether it had the jurisdiction to adjudicate the dispute between members states and it clearly did. Hence, it correctly denied the motion by Israel to dismiss the action.<\/p>\n

Rick is attempting to predicate dismissal based on horrific evidence which (in my view) indisputably established the bestial acts of Hamas and the right of Israel to defend itself.<\/p>\n

Such evidence is irrelevant to dismissal under ICJ rules. I wish that was not the case! As I stated previously, you either abide by the rules or remove yourself from the province of international law. Israel can declare that it is not subject to the jurisdiction of the ICJ in the identical fashion of Putin and other rogue actors in recent history.<\/p>\n

Such a decision would be contrary to everything Israel stands for and I am hopeful that it will allow the process to move forward with the presentation of evidence and the incredible merits of its case.<\/p>\n

For More News And Analysis About Mauritius<\/a> Follow Africa-Press<\/a><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Africa-Press – Mauritius. On Oct. 7, 2023, Hamas terrorists broke a ceasefire, invaded Israel, and committed the greatest massacre of Jews since the Holocaust. The European Commission President later noted: \u201cThere was no limit to the blood Hamas terrorists wanted to spill. They went home by home. They burned people alive. They mutilated children and […]<\/p>\n","protected":false},"author":84,"featured_media":39334,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2,12],"tags":[233,245,2577,241],"class_list":["post-39335","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-all-news","category-policy","tag-africa-press","tag-africa-press-mauritius","tag-hamas","tag-mauritius"],"yoast_head":"\nIt's Debatable: Should court dismiss claim Israel committing genocide in Gaza? - Mauritius<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.africa-press.net\/mauritius\/all-news\/its-debatable-should-court-dismiss-claim-israel-committing-genocide-in-gaza\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"It's Debatable: Should court dismiss claim Israel committing genocide in Gaza?\" \/>\n<meta property=\"og:description\" content=\"Africa-Press – Mauritius. On Oct. 7, 2023, Hamas terrorists broke a ceasefire, invaded Israel, and committed the greatest massacre of Jews since the Holocaust. The European Commission President later noted: \u201cThere was no limit to the blood Hamas terrorists wanted to spill. They went home by home. They burned people alive. 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On Oct. 7, 2023, Hamas terrorists broke a ceasefire, invaded Israel, and committed the greatest massacre of Jews since the Holocaust. The European Commission President later noted: \u201cThere was no limit to the blood Hamas terrorists wanted to spill. They went home by home. They burned people alive. 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