Jerusalem Center for Security and Foreign Affairs (JCFA)

It takes magicians years of practice to perfect the consummate magic trick to fool an audience. In some cases, the “magic” is created using sleight of hand. In others, the sleight of hand is combined with a distraction that diverts the audience’s attention to one object, thereby allowing the “magic” to take place to an object outside the scope of focus. The actual reality is hidden from clear sight. So it is in The Hague Courts. While purporting to be a legal decision, the latest order of the International Court of Justice (ICJ) was nothing more than a cheap magic trick designed to snag Israel. To create the illusion of legitimacy, the order employed diversionary tactics, causing most commentators to focus on one subject, while in reality, the real bite of the decision was maliciously hiding, albeit in clear view, in another place entirely.

In December 2023, Iran, using the useful idiots in Pretoria, South Africa, and acting on behalf of its proxy, Hamas, initiated an assault on Israel in the ICJ. The framework for the assault was the “Convention on the Prevention and Punishment of the Crime of Genocide.” In the complaint,¹ the Iranian-South African-Hamas axis inverted reality, claiming that it was Israel and not the homicidal terrorists from Gaza who carried out the October 7, 2023, massacre, who had engaged in genocide.

Based on a plethora of bogus sources, first and foremost unverified United Nations sources, the Iranian-South African-Hamas axis request to the ICJ was essentially an order to Israel to forfeit its right to self-defense, cease all fighting in the Gaza Strip, abandon the hostages taken by the terrorists on October 7, and fully withdraw all the Israeli soldiers from the area. The cumulative requests were designed to ensure that the ICJ provided a cloak of protection to the genocidal terrorists, who had committed themselves to carrying out more and more massacres² while simultaneously vilifying Israel.

Initially, the ICJ was partially drawn by its instinct to side with the genocidal terrorists against Israel.³ Thus, even in the absence of any tangible evidence to support the Iranian-South African-Hamas claim that a genocide was being committed, in its first decision in January 2024,⁴ the ICJ found, “At this stage of the proceedings, however, the Court is not called upon to determine definitively whether the rights which South Africa wishes to see protected exist. It needs only to decide whether the rights claimed by South Africa and for which it is seeking protection are plausible” and “that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”

The convoluted decision of the court immediately gave rise to a false and deliberately misleading claim that the ICJ had found plausible evidence that Israel had committed genocide. To counter this deliberate misinformation, months later, and after substantial damage to Israel had already been caused, the former president of the court, Joan Donoghue, clarified⁵ that no such decision was ever made.

Unsatisfied with the initial orders of the court, the Iranian-South African-Hamas axis submitted request⁶ after request⁷ for the ICJ to issue additional instructions – termed “provisional measures” – to limit Israel and defend the terrorists.

Undeterred by the fact that the previous orders of the ICJ merely required Israel to fulfill its already existing obligations and conscious of the fact that Israel had conformed with the reporting requirements imposed by the court, the Iranian-South African-Hamas axis submitted a third additional request⁸ to the court.

Building on the request that the court order Israel to cease its military operations, retreat from the Gaza Strip, and thus inherently abandon the hostages, abandon its right to self-defense, and surrender to the terrorists, the Iranian-South African-Hamas axis again asked the court to order Israel to “take all effective measures to ensure and facilitate the unimpeded access to Gaza of United Nations and other officials engaged in the provision of humanitarian aid and assistance to the population of Gaza, as well as fact-finding missions, internationally mandated bodies or officials, investigators, and journalists…”

While a similar request had been made in the initial request of the Iranian-South African-Hamas axis,⁹ as demonstrated in the following table, the latest request differed from the initial request both in terms of the nature of the obligation the axis sought to impose on Israel and concerning the categories of people the axis sought to force Israel to allow into Gaza.

In rejecting the initial request in the first hearing held before the ICJ, the Israeli representatives noted three critical factors. First, Israel argued that access to Gaza from Egypt is under Egypt’s control. Second, Israel claimed that it has no obligation under international law to allow access from its territory into Gaza. Finally, Israel argued that the need for the measure had not been established.

In its initial decision, the ICJ did not refer to the Iranian-South African-Hamas axis request on this subject.

In the first and second additional requests to the court, the Iranian-South African-Hamas axis seemed to abandon the request and did not raise it again.

The difference this time, regarding the third request for additional orders, was that Israel had much less time to prepare and that due to the court’s obtuse, unfair, and unexplained decision to refuse the Israeli request to delay the hearing to secure the chosen representation, Israel, in its oral presentation, did not specifically address the subject.

As on previous occasions, this time, too, the focus of the international community was on one question alone: Will the ICJ order Israel to cease its military operations and refrain from entering Rafah?

A Circuitous Route to Rafah

While the court rendered another convoluted, ambiguous decision on that question, the bottom line, as clarified by several judges in separate decisions, was that the court did not order an immediate ceasefire.

However, like a magic trick, while the international community’s main focus was the court’s approach to Rafah, the court seized the opportunity to employ its own sleight of hand.

Access to Gaza from Egypt is still under Egyptian control. No new requirement of international law – invented since January 2024 – has imposed upon Israel the legal obligation to allow access from its territory into Gaza. While the Iranian-South African-Hamas axis had still not established the need for the measure, nonetheless, in its decision of May 24, 2024,¹⁰ the court adopted the request, almost in its entirety, and ordered Israel to:

Take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide;

Significantly, while the order did not require Israel to permit the entry of journalists, it suddenly added the unrequested reference requiring Israel to ensure unimpeded access to any “commission of inquiry.”

This order was precisely what the Iranian-South African-Hamas terror axis was seeking.

In addition to the proceedings before the ICJ regarding the baseless genocide claims, the UN Human Rights Council has at least two functionaries who are “investigating” Israel.

One investigator is the United Nations “Special Rapporteur on the Occupied Palestinian Territories (oPt),” Francesca Albanese, who, upon hearing the news of the massacre, responded by justifying the genocidal terrorists: “Today’s violence must be put in context. Almost six decades of hostile military rule over an entire civilian population.”¹¹ Since then, Albanese has doubled down on her portrayal of Israel as an apartheid state. She has already concluded that “Israel’s genocide on the Palestinians in Gaza is an escalatory stage of a longstanding settler-colonial process of erasure.”¹²

Due to her vile antisemitism and blatant bias that followed a long line of antisemitic UN special rapporteurs, Israel has consistently denied her and her predecessors access to Israel, Judea, and Samaria. While Albanese could have entered Gaza from Egypt, she preferred¹³ to attack Israel for denying her entry.

The second investigator is Navi Pillay, who heads the U.N. Human Rights Council’s Commission of Inquiry on the Occupied Palestinian Territory and Israel.¹⁴ More akin to a medieval inquisition than a legitimate “Commission of Inquiry,” from the outset, the mandate of Pillay’s inquisition is to convict the Jewish state of all kinds of oppression. All that is left for the motley crew of anti-Semites¹⁵ who serve on the commission to do is to systematically gather biased “evidence” to prove the case.

Due to the inherent bias of Pillay’s inquisition, Israel has also refused access to her and her investigators.

In addition to the other “investigators,” the ICJ itself, in its function as a UN organ that, among other things, provides the UN with “advisory opinions,” has been requested, at the behest of the Palestinian leadership, to commence a process of “investigating” Israel. Following a request from the UN General Assembly, in parallel to the genocide proceedings, the ICJ is thus also working on producing an advisory opinion on the “legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination.” ¹⁶

Israel is not participating in the proceedings due to the inherent bias of the request for the advisory opinion, which assumes facts that have no basis.

For decades, Israel has maintained its sovereign right to refuse to participate in medieval-style UN witch hunts and “kangaroo courts,” the mandates of which had already found Israel and the Jews guilty as charged before any investigation was ever carried out. Now, it would appear that in the course of the baseless genocide proceedings, the ICJ has imposed upon Israel another baseless requirement. If, as claimed, the orders of the ICJ in the genocide proceedings are legally binding, suddenly, Israel is now legally bound to surrender its sovereign rights to decide who enters Israel and who does not, and to “ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations.”

Even if one were to read the order in its narrowest manner and claim that Israel is only required to “take all effective measures to ensure and facilitate” the unimpeded access only, and specifically, to “investigate allegations of genocide,” this would be to no avail. While Albanese has not yet been appointed to “investigate allegations of genocide,” were she to request that task, the UNHRC would certainly acquiesce. Pillay, on the other hand, has already announced that her committee has the jurisdiction to investigate the events of the massacre, “So there’s no way we will not do so.”¹⁷ Additionally, even the narrow interpretation still leaves the door open for the infamously anti-Israel and biased UN General Assembly and UNHRC to appoint yet another body to investigate Israel.

This reality was not ignored by the Iranian-South African-Hamas axis, who already, in their original request, noted,¹⁸ “There is a long-standing practice of Israel restricting access to the oPt, alongside expelling or denying visas to UN staff, Special Rapporteurs, and fact-finding teams, including UN commissions of inquiry…”

While it appears to be increasingly evident that the ICJ, like all other UN organs, harbors the same common anti-Israel bias, the situation recently has become even more dire. As part of the rotation in the court, which is open to judges from every country except Israel, the newly appointed President of the ICJ is Nawaf Salam. Salam is from Lebanon, a country that is actively engaged in war against Israel, who, in his previous position as Lebanese ambassador to the UN, compared Israel to Apartheid South Africa.¹⁹

In any respectable courtroom, a biased judge would have to recuse himself. To ensure that the ICJ maintains its semblance of legitimacy, the Court’s Statute provides explicitly²⁰ that no judge “may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of inquiry, or in any other capacity.” Despite the apparent violation of these restrictions and his bias, Salam preferred not to recuse himself, thereby adding cause for the Court’s lack of credibility.

Thus, while the world was looking one way, the ICJ, headed by a biased judge, was busy performing a cheap magic trick, inventing a new legal standard specifically for Israel, more comprehensive than what was requested by the Iranian-South African-Hamas terror axis, as a means to force Israel to ensure access by those elements in the international community that consistently display bias, hostility to Israel, and even antisemitism.

Should Israel choose not to adhere to the baseless order, it could breach the ICJ decision.

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