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The Possibility of the ICJ and the ICC Taking Action in the Wake of Israel’s Operation «Cast Lead» in the Gaza Strip

A Jurisdiction and Admissibility Analysis

Series:

Oded Friedmann

Israel’s Operation «Cast Lead» in Gaza differed from prior armed confrontations between Israel and Hamas both in terms of its death toll and destruction. Following the Operation, numerous members of the international community and non-governmental organizations severely criticized the conduct of both sides during the conflict, calling upon the International Court of Justice (ICJ) and, mainly, the International Criminal Court (ICC) to investigate international law violations alleged against Hamas and, to a greater extent, Israel. This book provides an in-depth analysis of whether Israel or Israelis could face a legal reckoning before the ICJ and ICC, based on the serious allegations made against the conduct of the Israeli Defense Forces during the Gaza armed conflict. The analysis focuses solely on jurisdiction and admissibility issues, and does not weigh in on the veracity or legal accuracy of the allegations.

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Chapter One THE POSSIBILITY OF THE INTERNATIONAL COURT OF JUSTICE INVESTIGATING THE ALLEGED VIOLATIONS OF INTERNATIONAL LAW DURING THE GAZA ARMED CONFLICT

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1. The International Court of Justice The ICJ (the “Court”), which is commonly referred to as the “World Court”, is located in The Hague, The Netherlands. Founded in 1946 to replace the Perma- nent Court of International Justice (“PCIJ”)86, the ICJ ranks as the High Treasur- er of the Rule of Law within the UN system87, one of its main organs and its principle judicial organ88. Although the ICJ is not the legal successor to the PCIJ, it is in essence a continuation of the latter, with virtually the same statute and jurisdiction. There is also continuity of case law, as no distinction is made in ICJ jurisprudence between decisions rendered by the PCIJ and those rendered by the ICJ89. The Court is composed of fifteen judges of different nationalities, who are elected by the UN General Assembly and Security Council90, and has a dual role: (i) To decide in accordance with international law legal disputes submitted to it by states, and (ii) to give advisory opinions on legal questions referred to it by duly authorized international organs and agencies. Accordingly, the jurisdic- tion of the Court falls into two distinct parts, namely, contentious and advisory. In either capacity, the ICJ operates in an intensely politicized environment and must, even under the best of circumstances, seek a balance between legal neces- sity and political feasibility, assertiveness and restraint, in order to secure the fickle confidence of states91. 86 The PCIJ had functioned since 1922 and was dissolved after World...

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