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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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SUMMARY AND CONCLUSION

Extract

Returning to the purpose of the research stated in the Introduction, this thesis has provided an in-depth procedural analysis of the possibility of Israel / Israelis fac- ing legal consequences before the ICJ or the ICC, based on the serious allega- tions made against the conduct of the IDF during the Gaza armed conflict of 2008/2009. The conclusions reached during said analysis can be summarized as follows: 1. ICJ jurisdiction over the Gaza armed conflict The first question regarding possible ICJ jurisdiction over the events of the Gaza conflict pertained to the Court’s contentious jurisdiction – i.e. the possibility of litigation between the State of Israel and another state(s) before the ICJ concern- ing possible violations of international law by Israeli military forces during the conflict in Gaza. This possibility was rejected in Chapter One as a result of: (i) The consent requirement, according to which the ICJ derives its jurisdiction from the definite consent of the states that are party to each case, so that no state can be made a party to contentious proceedings against its express will; (ii) The fact that the State of Israel explicitly rejects the ICJ’s contentious ju- risdiction with respect to any element of the Israeli-Palestinian conflict. The second possibility analyzed in Chapter One was that of possible ICJ ad- visory jurisdiction in the case at hand. The main conclusion reached in this anal- ysis was that should the ICJ be requested to provide an advisory opinion regard- ing possible Israeli violations of...

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