II. Core Issues Between Israel–Palestine

The issues at the heart of the Israel–Palestine conflict remain unresolved in part because previous peace negotiations failed to adequately address their historical underpinnings. During the 1993–1995 Oslo Peace Process, “Both leaderships eschewed discussions of the past” and failed to critically engage with the history of the conflict and its ramifications.11 Additionally, there was no proposition of a transitional justice mechanism or the ways in which it could help remedy core issues between the parties. Israeli negotiator Uri Savir said, “never again would we argue about the past.”12 The Palestinian negotiator Ahmed Qurei said, “We focused our attention on the present and the future,” as they were “trying to gauge the extent to which we had a common ground.”13 Priority was given to the issues of “mutual recognition, the creation of a Palestinian authority, and a progressive withdrawal of Israeli occupying forces.”14 However, neither side was interested in “readdressing ancient wrongs.”15 Although the “final-status issues” including that of the Palestinian refugees were left to be addressed in 2000 at the Camp-David Summit, no resolution was reached.16

A. Palestinian Refugee Issue

In the war for independence that followed the creation of the State of Israel in 1948, about half the Arab population fled what was British-ruled Palestine.17 According to some estimates, 700,000 Palestinians “fled or were driven from their homes, ending up in Jordan, Lebanon and Syria as well as in Gaza, the West Bank and East Jerusalem.”18 According to the International Center for Transitional Justice, Palestinians make up the world’s largest displaced population.19 After two waves of displacement in Israel in 1948 and 1967, three generations of Palestinians have faced a refugee crisis. By 2012, approximately 70% of Palestinians had been displaced from their place of origin, with more than 6.6 million refugees and approximately 427,000 people displaced within Israel, the West Bank, and the Gaza Strip.20 Since October 7, 2023, around two million Palestinians have been displaced across the Gaza Strip.21

The Middle-East Peace Envoy at the Camp-David Summit wrote, “our parameter[s] acknowledge that the Palestinians needed the right [of return], but that Israel must have the sovereign right to determine who could be admitted to Israel.”22 At the Taba Summit in January 2001, Palestinians also “demanded a clear acknowledgment of Israel’s ‘moral and legal responsibility for the forced displacement and dispossession of the Palestinian civilian population during the 1948 war.’”23 However, although Israel agreed to “express its sorrow for the tragedy of Palestinian refugees” it would not “accept moral responsibility.”24 There have been various attempts since then to reach an agreement, but nearly twenty-four years later, the Palestinian refugee issue persists.

B. Territory Issue and the “Right of Return”

The Palestinian demand for a “right of return” has arguably been one of, if not the main reason Israel and Palestine have failed to reach a peace agreement. The Palestinian argument is that the original Palestinian refugees who were “dispossessed and expelled, or fled under threat of violence” from the decision in 1947 to end the British mandate, through Israel’s War of Independence from 1948–1949, have the right to return to those original homes.25 However, a dominant Israeli narrative is that “those who left in 1948 were largely manipulated by Arab armies, during a war that Israel did not start, then held in refugee camps for generations” in order to “be used as political pawns.”26 Thus, Israelis and Palestinians have completely opposite, seemingly irreconcilable viewpoints on this issue. Israel does not believe there is any “right of return” to areas of Israeli sovereignty-apart from considering a small number of refugees for the purpose of family reunification-and “denies responsibility for the creation of the refugee problem.”27

In addition to the impasse about the “right of return,” Israeli settlements in the West Bank have been a point of contention. In September 1993, Israeli Prime Minister Yitzhak Rabin and Palestine Liberation Organization Negotiator Mahmoud Abbas, signed the “Oslo Accord.”28 Both sides agreed to the establishment of a Palestinian Authority (PA) and that it would govern the West Bank and Gaza Strip over a five-year period.29 In 1995, the Taba Agreement (Oslo II) divided the West Bank into three areas: A (18%)—PA administers civil and security matters, B (22%)—PA administers civil matters and Israel maintains security and military responsibilities, and C (60%)—fully administered by Israel.30 However, by 2000, the agreement began to fall apart as violence ensued between Israel and Palestine, particularly with regard to the Israeli settlements in Area C.

The tension surrounding this territorial divide is a byproduct of the way the West Bank’s division “resulted in the creation of a large number of disconnected territorial nodes and exclaves.”31 Even though this agreement expanded Palestinian authority, the lack of “territorial contiguity” does not permit for the efficient functioning of a Palestinian administration.32 Travelling between towns under Palestinian control often requires travelling along the roads under Israeli control.33 Further, Israeli and Palestinian settlements throughout the West Bank are surrounded by territory which belongs to the other side.34 For example, according to some estimates, 30% of Area C is a “designated ‘firing zone’ for military training,” even though about thirty-eight Palestinian communities are located within that area.35 Thus, the line between Palestinian and Israeli territories is not clearly delineated so that each side feels it has sufficient autonomy over its own people.

C. Extremist Organizations Issue

The religious dimension of the Israel–Palestine conflict has in large part been manipulated to propagate the narrative of the extremist organizations. Hamas, Palestinian Islamic Jihad, Popular Front for the Liberation of Palestine, Hizballah, the Palestine Liberation Front, and Israel’s extreme religious Zionists have contributed to the delay of a peace agreement between Israel and Palestine. Israel’s extreme religious Zionists believe themselves to be “guardians and definers of how the Jewish state should be and are very stringent when it comes to any concessions to the Arabs.”36 Conversely, the extreme Islamist groups are proponents of “liberating the ‘holy’ territories and sites” and “preach violence and hatred against Israel and the Jewish people.”37 The tension between the extremists is further exacerbated by the media that fuels “rumors” essentially equating the “agendas” of the extremists to that of the average Palestinian and Israeli.38 For example, there have been claims that there is a “‘Jewish Plan’ to destroy al Aqsa mosque” and that “Muslims hold the annihilation of Jews at the core of their belief.”39

Hamas, an Islamic militant group born in late 1987 after the outbreak of the first intifada, has been a focal point of the Israel–Palestine conflict for decades. As a group whose charter calls for the destruction of Israel, it has through violent protest opposed the Oslo Accords and attempts at a two-state solution.40 Despite lacking in popularity among many Palestinians, Hamas has been the de facto authority in Gaza since 2006.41 Since then, the “Wars in Gaza” between Israel and Hamas have ensued.42 On October 7, 2023, Hamas launched a deadly attack on Israel and Israel has since responded with deadly “counteroffensive” attacks in an effort to “carry out a ‘complete siege’ of Gaza.”43

III. Transitional Justice Mechanism for Israel–Palestine

Each of the core issues previously discussed can be more effectively addressed through transitional justice than criminal justice. Israelis’ and Palestinians’ acknowledgment of each other’s right to live and occupy Israel and the West Bank would be the first step in the way of resolving the land conflict. A cease fire and agreement upon a two-state solution is very unlikely to happen until Israelis and Palestinians feel there has been a genuine understanding and acceptance of the other’s perspective. It has been argued that Palestinians feel that in 1948 “a country and its people disappeared from both maps and dictionaries.”44 Thus, if Israel would “agree to acknowledge the Palestinians’ right of return to their ‘homes,’” it would demonstrate Israel’s acknowledgment of the Palestinian people’s legitimacy.45

Additionally, in order for the sentiment around “right of return” to change, Israel would need to recognize that this demand is not “unique” to Palestinians nor “proof of Palestinians’ destructive intent.”46 Conversely, it is important that the Palestinian side acknowledge that the Jewish people have a connection to the land of Israel, because otherwise many Israelis see the “right of return for Palestinians is equivalent to the an elimination of the state of Israel as a shelter for Jews.”47 Additionally, to help change the narrative around the demand for “right of return,” it should be explicitly separate “from discussions about the final determination of Israel’s national identity.”48 Thus, for both groups to coexist peacefully, acknowledgement of the other’s perspective is imperative.

The establishment of a truth and reconciliation committee and an international refugee fund through a peace agreement between Israel and Palestine, would likely aid in remedying the misalignment of views between Israelis and Palestinians. There is a sentiment among Palestinians, particularly among the refugees, that their suffering has been largely sidelined for decades. Thus, a truth and reconciliation commission would provide a platform for thousands of Israeli and Palestinian victims to express their grievances and suffering after decades of war and turmoil and for perpetrators of crimes to take responsibility for their actions on a mass-scale. Additionally, creating an international fund would not only financially aid these refugees, but also symbolize the acknowledgment of their pain and suffering. However, the importance of the fund is that it is also officially supported by the Israeli government which would send a message to Palestinians that their suffering has been acknowledged.

The outstanding issue, and one for which the remedy is unclear, is that of the Israel–Hamas war and persistence of extremist groups. Peace will not be attainable so long as civilians are killed and any attempt at a peace agreement is violently protested. Hamas’s acts, particularly those since October 7, 2023, beg the question: How much authority does the PA yield to impose a cease fire and negotiate a peace agreement with Israel? There is uncertainty about whether the PA would hold sufficient authority and support among Palestinians were there to be renewed discussions around an Israel–Palestine peace agreement. Additionally, half of the Palestinians believe that the “interest of the Palestinian people lies in the dissolution or collapse of the PA” and 73% believe Hamas-run institutions in the Gaza Strip are corrupt.49 However, although there is not a clear cut solution, there is hope that through a commitment from Israel for a cease fire and acknowledgment of historical wrongdoing through truth and reconciliation commissions, any civilian support that exists for these extremists groups will begin to dissipate.

IV. Conclusion

Israel and Palestine’s war over independence has been driving the last eighty years of conflict. Decades of violence have resulted in the displacement of millions of people and as some may argue, the development of militant extremist groups. So long as war ensues between Israel and Palestine, the prospect of peace will only become a more distant and unattainable reality.

Prosecution for any crimes that may have been committed by both sides will not deliver justice to the victims nor resolve the core issues between Israel and Palestine. By attempting to assert blame on the wrongdoers, prosecution will only further polarize the groups, ingraining the opposing views which led to the current impasse. If there is a solution to the Israel–Palestine conflict, it lies in the application of transitional justice.

With both Israel and Palestine having largely youthful populations—thirty being the median age in Israel and twenty-one being the average age in Palestinian Territories—a peace agreement is vital to the prosperity of the coming generations.50 A truth and reconciliation commission, the establishment of an international refugee fund, and an acknowledgment of each side’s connection to the land of Israel and the West Bank, will hopefully lead to the establishment of a cease fire and permanent two-state solution.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Jeffry A. Frieden, The Root Causes of Enduring Conflict: Can Israel and Palestine Co-Exist?, in Israel and Palestine: Alternative Perspectives on Statehood (John Ehrenberg & Yoav Peled eds., Jul. 2016), paywall, earlier version available online. ↩

2. 2.

   Id. at 5. ↩

3. 3.

   Transitional Justice and Human Rights, OHCHR, available online (last visited Dec. 7, 2023). ↩

4. 4.

   Yoav Kapshuk, Transitional Justice in the Israeli–Palestinian Negotiations: What Can Be Learned from the Colombian Case?, 14 JPD 73, 76 (2019), available online, doi. ↩

5. 5.

   Id. ↩

6. 6.

   The Question of Palestine, UNISPAL, available online (last visited Dec. 6, 2023). ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   Id.; The Arab–Israeli War of 1948, U.S. Dept. of State: Office of the Historian, available online (last visited Dec. 8, 2023). ↩

10. 10.

    Kapshuk, supra note 4, at 75 citing Nadim N. Rouhana, Key Issues In Reconciliation: Challenging Traditional Assumptions on Conflict Resolution and Power Dynamics (2011), available online. ↩

11. 11.

    Nadim Khoury, Transitional Justice in Palestine/Israel: Whose Justice? Which Transition?, in Rethinking Statehood in Palestine: Self-Determination and Decolonization Beyond Partition 156 (Leila H. Farsakh ed., 2021), available online, doi, quoting Ron Dudai, A Model for Dealing with the Past in the Israeli–Palestinian Context, 1 IJTJ 249, 252 (Jul. 2007), paywall, doi. ↩

12. 12.

    Khoury, supra note 11, at 156, quoting Uri Savir, The Process 15 (1998), paywall. ↩

13. 13.

    Khoury, supra note 11, at 156, quoting Ahmed Qurei, From Oslo to Jerusalem: The Palestinian Story of the Secret Negotiations 58 (2006), available online. ↩

14. 14.

    Khoury, supra note 11, at 156. ↩

15. 15.

    Savir, supra note 12, at 156. ↩

16. 16.

    Id. ↩

17. 17.

    What’s the Israel–Palestinian Conflict About and How Did It Start?, Reuters, Oct. 11, 2023, available online. ↩

18. 18.

    Id. ↩

19. 19.

    Leila Hilal, ICTJ, Transitional Justice Responses to Palestinian Dispossession: Focus on Restitution 4 (Aug. 2012), available online. ↩

20. 20.

    Id.; Ingrid Jaradat Gassner ed., BADIL, Survey of Palestinian Refugees and Internally Displaced Persons 2008–2009 (2009), available online. ↩

21. 21.

    Almost 1.9M Palestinian Displaced Across Gaza Strip Since Oct. 7: UN, Anadolu Agency, Dec. 5, 2023, available online; Bassam Masoud, Gaza Families Flee Again to Shrinking, Overcrowded Pocket of Land, Reuters, Dec. 5, 2023, available online. ↩

22. 22.

    Kapshuk, supra note 4, at 75, quoting Dennis Ross, The Missing Peace: The Inside Story of the Fight for Middle East Peace (2005), paywall. ↩

23. 23.

    Kapshuk, supra note 4, at 75, quoting Taba Non-Papers, Palestinian Position Paper On Palestinian Refugees and the Israeli Response (2001), available online. ↩

24. 24.

    Kapshuk, supra note 4, at 75. ↩

25. 25.

    Dahlia Scheindlin, Neither Intractable Nor Unique: A Practical Solution for Palestinian Right of Return, The Century Foundation (Apr. 28, 2020), available online. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ↩

28. 28.

    The Oslo Accords and the Arab–Israeli Peace Process, U.S. Dept. of State: Office of the Historian, available online (last visited Dec. 8, 2023). ↩

29. 29.

    Id. ↩

30. 30.

    Id.; Areas A, B, C, Visualizing Palestine 101, available online (last visited Dec. 10, 2023); What Are Area A, Area B, and Area C in the West Bank?, Anera, available online (last visited Dec. 10, 2023). ↩

31. 31.

    David Newman, Shared Spaces—Separate Spaces: The Israel–Palestine Peace Process, 39 GeoJournal 363, 365 (Aug. 1996), paywall, doi. ↩

32. 32.

    Id. ↩

33. 33.

    Id. ↩

34. 34.

    Id. ↩

35. 35.

    What Are Area A, Area B, and Area C in the West Bank?, supra note 30. ↩

36. 36.

    Mohamed Galal Mostafa, Religion and the Israel–Palestinian Conflict: Cause, Consequence, and Cure, Fikra Forum (May 31, 2018), available online. ↩

37. 37.

    Id. ↩

38. 38.

    Id. ↩

39. 39.

    Id. ↩

40. 40.

    The Covenant of the Islamic Resistance Movement (Aug. 18, 1988), available online (trans.); Kali Robinson, What Is Hamas?, Council on Foreign Rel. (Oct. 31, 2023), available online. ↩

41. 41.

    Robinson, supra note 40. ↩

42. 42.

    Nicole Narea, A Timeline of Israel and Palestine’s Complicated History, Vox, Oct. 19, 2023, available online. ↩

43. 43.

    Id. ↩

44. 44.

    Kapshuk, supra note 4, at 76 citing Elias Sanbar, Out of Place, Out of Time, 16 Mediterr. Hist. Rev. 87, 87 (2001), paywall, doi. ↩

45. 45.

    Id. ↩

46. 46.

    Scheindlin, supra note 25. ↩

47. 47.

    Kapshuk, supra note 4, at 76, citing Sammy Smooha, The Index of Arab–Jewish Relations In Israel 38 (2013), available online. ↩

48. 48.

    Scheindlin, supra note 25. ↩

49. 49.

    Palestinian Center for Policy and Survey Research, Public Opinion Poll No. 88 (Jun. 2023), available online. ↩

50. 50.

    Robert Barron, How Do Israeli and Palestinian Youth View the Prospects for Peace?, USIP (Jan. 31, 2023), available online. ↩

Hamas openly and expressly declares its genocidal goals in its updated 2017 covenant,20 which has resulted in a constant threat for Israelis as there is no doubt about the genocidal intent of the brutal attacks on and since October 7 and the attacks that have followed since. Consequently, both the families of nine victims of the October 7 Hamas attacks21 and three Palestinian human rights organizations22 have filed complaints with the International Criminal Court (ICC) for genocide (alongside war crimes and crimes against humanity). In response, the Prosecutor has continuously asserted the ICC’s jurisdiction over atrocity crimes committed by Palestinian nationals as well as on the territory of Palestine23 and declared the respective investigations a priority for his Office.24

However, investigations and criminal proceedings of the ICC are usually extensive and lengthy, which begs the question of the role of international law and justice in ongoing conflicts as international judicial bodies may not be best equipped to address and handle situations in a timely and impactful manner, at least not when it comes to individual criminal responsibility. Interestingly, there was also a lawsuit filed against President Biden and other State officials on behalf of several Palestinian human rights organizations, together with Palestinians in Gaza and the U.S., for their failure to prevent and complicity in the (alleged) genocide of the Israeli government against Palestinians in Gaza.25

Leading back to the role of international law in the current situation, or more specifically the obligations of States (rather than individuals) under international law, this comment explores the duties of state parties under the very treaty created to prevent and punish genocide.

The objective of this comment therefore isn’t to determine whether the unfolding events in Israel and the Gaza Strip constitute genocide or a risk thereof but to analyze and explore the concrete legal obligations of States under the Genocide Convention as a reaction to the mounting concerns of there being a “grave risk” for genocide in Gaza.26 Even though this comment does focus on the situation in Gaza, it also includes analyses that relate to the genocidal risk that Hamas and its attacks pose to Israel. It’s important to stress that this comment’s focus is certainly not intended to downplay the barbaric attacks perpetrated by Hamas on October 7 and the attacks that have followed since. They undoubtedly constitute war crimes, crimes against humanity, genocide, and grossly violate the most fundamental values of the international community.27 From the perspective of international law, that much is very clear.

II. The Genocide Convention

A. Background and Overview

After the Military Tribunals at Nuremberg and Tokyo, there was determination within the U.N. to emancipate genocide as a crime distinct from other atrocities, since the tribunals weren’t able to recognize the criminality of atrocity crimes during peacetimes.28 In the eyes of many, this constituted a failure to reflect the “specific evils of genocide” the international community had just been witness to.29 What led to the General Assembly Resolution 96 (I) was therefore the objective to expressly condemn and criminalize genocide as well as to explicitly distinguish it from other mass atrocity crimes, such as war crimes and crimes against humanity.30 The goal was to codify the most fundamental moral values of the international community, which had just been violated in the most reprehensible way. Thus, after the formal request of the G.A., the Economic and Social Council initiated the drafting of the first international human rights treaty, which would provide the first legal definition of genocide and mark an essential step in the development of international human rights law.31

Currently, the Genocide Convention has 153 signatories, including Israel (ratification in 1945), Palestine (accession in 2014), and the United States (ratification in 1988),32 and aims to both prevent and punish genocide through a combination of individual criminal and responsibility.33 Moreover, the International Court of Justice has repeatedly affirmed that the Genocide Convention reflects customary international law, meaning even states that haven’t signed on to the Genocide Convention are legally bound to it.34 In addition, the prohibition of genocide is considered a peremptory (jus cogens) norm of international law as it reflects fundamental values of the international community and presents a threat to international peace.35

As a consequence, the International Court of Justice has further affirmed that the Genocide Convention’s provisions are owed by any State party to all other State parties to the Genocide Convention (erga omnes).36 And because States have a significant interest in compliance with the Genocide Convention’s provisions, any State party “may [therefore] invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations”37 by calling on the International Court of Justice as the competent judicial organ.38

Apart from the commission of genocide, the Genocide Convention also criminalizes the incitement, attempt to, and complicity in committing genocide.39 Furthermore, Article V contains the obligation of States to enact necessary legislation and the obligation to ensure effective penalties.40 Article VI further obliges state parties to try perpetrators charged with genocide,41 while Article VII contains the obligation to grant extradition.42 And though the Genocide Convention has been criticized for being “flawed” or even “conceptually confused,” it has been the most authoritative, widely ratified legal instrument in the international fight against genocide since it entered into force in 1951.43

B. Genocide: Definition and Elements of the Crime

The term genocide dates back to Polish lawyer Rafal Lemkin, who had to flee his homeland after the Nazi occupation.44 Lemkin was an influential figure in the development of international human rights law as well as during the drafting process of the Genocide Convention,45 and first coined the term in his 1944 book Axis Rule in Occupied Europe.46 It is a combination of the Greek word genos (race, nation, or tribe) and the Latin word cide (killing), and offered a linguistic distinction from other atrocities by providing a “neologism for an old crime.”47 As a direct reaction to the military tribunals after the Second World War, the Drafting Committee further characterized genocide as an international crime that can be committed in times of peace as well as in times of war,48 which was particularly impactful at the time since other international crimes needed a connection to war or armed conflict in order to be punishable.49

The Genocide Convention’s definition of genocide,50 has since been widely accepted at both the national and international level. The Statute of the International Criminal Tribunal for the Former Yugoslavia,51 The Statute of the International Criminal Tribunal for Rwanda,52 and the Rome Statute of the ICC53 all adopted this definition of genocide, as have a multitude of domestic legislations.

Under Article II of the Genocide Convention,54 genocide requires two main elements: a committed or attempted underlying act, as well specific intent:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;

2. Causing serious bodily or mental harm to members of the group;

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. Imposing measures intended to prevent births within the group;

5. Forcibly transferring children of the group to another group.55 (emphasis added).

To further specify and add to this brief definition, it has been continuously supplemented with judgments, orders, and advisory opinions of the International Court of Justice, the International Criminal Court, and other international tribunals:

Of the five underlying acts, Articles II(a) and II(c)56 may be particularly relevant to the situation in Gaza. The ICC’s Elements of Crimes for example specify that the infliction of conditions of life calculated to bring about its physical destruction may include the “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”57 These acts don’t “immediately kill the members of the group, but […] , ultimately, seek their physical destruction.”58 The current siege of Gaza, which has blocked access to fuel, electricity, food, medicine, and humanitarian aid, could fall under that description.59

As can be deduced from Article II of the Genocide Convention,60 genocide doesn’t require the destruction of a whole group, nor does it require a “numeric threshold.”61 However, it has been argued that in regards to the necessary genocidal intent, the destruction in part does require a “reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership”62 because Article II(a)–(e) continuously use the plural when referring to victims. The aforementioned statements of Israeli officials may indicate intent to destroy the population of Gaza as a whole.

Since the drafting of the Genocide Convention, there’s additionally been a lot of debate around the groups that should enjoy protection and around who specifically should be protected since the Genocide Convention doesn’t include any additional definitions.63 Further, the group itself needs to be the perpetrator’s target because it is precisely that collectivity which enjoys protection under the Genocide Convention64 as “the victim of the crime of genocide is the group itself and not the individual alone.”65 Victims therefore aren’t targeted as individuals but because of their membership to a particular group.

In the context of the current situation, the population of Gaza may be considered a national or ethnical group that is part of the Palestinian population.66 The targeted part of a group can be a subgroup, for example and as is the case in Gaza, if it is a subgroup in a specific geographical area and makes up a substantial part of that group.67

These considerations already explored the second main element of genocide, which can be particularly difficult to prove:68 the specific intent to destroy a group in whole or in part. This dolus specialis, which has to be established in addition to the intent to commit the underlying act(s), is precisely what sets genocide apart from other atrocity crimes (such as crimes against humanity or war crimes),69 as the perpetrator’s actions need to serve this specific ulterior purpose of destruction.70 Genocidal intent can either be proven through an assessment of all the evidence presented in a case, or, in the absence of direct evidence, it can be inferred from all the facts and circumstances.71 Examples are the:

[G]eneral context, the scale of atrocities, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy.72

To this point, public statements and speeches can also be used to assess intent73 and it could be argued that the statements of Israeli officials demonstrate this specific mens rea to destroy.74

Motives of the perpetrators beyond their genocidal intent, on the other hand, are not considered to be a relevant factor.75

C. Obligations of State Parties: Duty to Prevent

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.76 (emphasis added).

Even though Article I expressly includes the prevention of genocide, the Genocide Convention’s focus undoubtedly lies in the criminalization, punishment, and prosecution of the committed crime.77 And while penal elements are extensively covered, Articles I and VIII are the only provisions that, albeit briefly, refer to a preventative approach. Further, Article I is phrased rather ambiguously, thus raising several questions essential to the understanding of the Genocide Convention’s objective:

Firstly, it seems unclear whether Article I is even meant to impose legal duties upon state parties, because the addition of the term undertake (instead of e.g. must or shall) could suggest a more aspirational, programmatic nature of the provision. This choice of language can however be traced back to the Genocide Convention’s drafting history, during which the provision was deliberately moved from the preamble to the main part of the treaty in an effort to adequately convey the binding commitment of states in the fight against genocide.78 In its first landmark case, the ICJ further pointed to the ordinary meaning of the word (e.g. give a pledge or promise), which has since been regularly used in treaty practice to emphasize the binding nature of a provision.79 Apart from the duty to punish and prevent, the ICJ has also affirmed that Article I contains the obligation not to commit genocide.

Secondly, it’s been questioned whether Article I also includes the legal duty for state parties to prevent genocide, or whether the binding nature of the provision only extends to punishment and prosecution. Until the 1990s, the preventative element of the Genocide Convention remained largely unaddressed in legal and political discourse and was even characterized as being “morally pregnant but […] normatively empty.”80 This quickly changed after the international community once again witnessed atrocities being committed on a large scale. Still, in his dissenting opinion in the ICJ’s Bosnian Genocide case, judge ad hoc Kreča argued that Article I does not contain the obligation for state parties to prevent genocide, but merely a “social, moral, even metaphysical duty.”81 He was convinced an obligation for States to prevent would be incompatible with the Genocide Convention’s penal character.82 But his arguments can be easily rebutted since the provision’s binding wording ( undertake to prevent) clearly also extends to the duty to prevent and can’t just be assigned to the first part of the article. The ICC further affirmed that the prevention of genocide is to be seen as a distinct duty, not as part of the deterrent effect of the duty to punish.83

Moreover, the Genocide Convention isn’t just of penal character but rather also contains provisions that address inter-state disputes, state responsibility, and preventative U.N. action.84 Today, the obligatory nature of the duty to prevent genocide is widely recognized and considered to be much more than just a programmatic statement.85 At the same time, the scope of the obligation to prevent remains largely unclear as Article I doesn’t elaborate on what this duty may entail.86 And there’s only one other provision that relates to the treaty’s preventative approach:

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.87 (emphasis added).

This provision contains the option ( may) of treaty parties to involve organs of the U.N., like the Security Council or the General Assembly, in the prevention of genocide. And while Article VIII has acted as a catalyst for institutional and political progress within the U.N., it is non-binding and hasn’t been able to contribute to the debate around obligatory state duties under the Genocide Convention.88 What has been established however, is that the non-binding Article VIII takes on a clarifying function and doesn’t limit State’s duties under Article I to the suggested actions since that interpretation would fundamentally undermine the binding character of the obligation to prevent, leaving it “normatively empty.”89 Thus, the ambiguous Article I remains the only provision that addresses the obligation of state parties, “which is why States still seem to be unaware of even a minimum legal content of the duty to prevent.”90 And even though various States asked for more details to be included in the Genocide Convention during its drafting process, the precise scope wasn’t elaborated upon.91

A thorough legal analysis of Article I utilizing the tools of treaty interpretation is hence needed to determine how States can fulfill the temporal and material dimensions of their obligation to prevent genocide, which is not only an obligation under the Genocide Convention but under international jus cogens.92

1. Treaty Interpretation: Article I

The 1969 Vienna Convention on the Law of Treaties (VCLT)93 and the corresponding customary international law offer the legal tools for the interpretation of international treaties. Article 31(1) of the VCLT is of particular relevance and goes as follows:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.94

The wording ( ordinary meaning) of a provision is seen as the starting point of the interpretative process, before the context, object, and purpose of the treaty in its entirety (including its preamble), are considered.95 In accordance with Article 31(1), the whole process is to be guided by the principle of good faith, which requires the adoption of a reasonable approach and takes the State parties’ initial motivations into account.96 In its landmark Bosnian Genocide Case, the ICJ made use of these techniques of legal interpretation to clarify and elaborate on the duties owed under Article I of the Genocide Convention:

As already analyzed, the wording of Article I ( undertake to prevent) results in the legal duty of States to prevent genocide, which leads to the conclusion of state parties having to adopt “reasonable measures” to fulfill that duty.97 The object and purpose of the Genocide Convention is entirely results-driven with its ultimate aim being to prevent future genocidal acts from unfolding.98 This however doesn’t mean that States owe a certain result but rather that they owe some conduct.99 Still, the question of the precise scope of this obligatory conduct under the Genocide Convention remains.

2. Scope of State Conduct

The ICJ explains States are obliged “to employ all means reasonably available to them, so as to prevent genocide so far as possible.”100 Thus, States have to take all measures within their power through the utilization of a due diligence approach that considers a variety of different factors. The capacity of States to influence perpetrators committing or likely to commit genocide can depend on their geographical distance as well as on any political links and connections (economic, diplomatic, etc.). Legal considerations also play an important role since measures must be in compliance with international law,101 and in “conformity with the spirit and aims of the United Nations.”102 Therefore, the concrete expected conduct varies significantly across situations and depends on the specific circumstances.

Another crucial question regarding owed state conduct under the Genocide Convention relates to the temporal dimension of duties. The text of Article I itself, once again, doesn’t provide any answers. Nevertheless, the ICJ stresses that the obligation to prevent genocide doesn’t just start when perpetration commences, even though a breach of obligation does require a committed genocide (in line with the International Law Commission’s Articles on State Responsibility103).104 But the Court finds the application of this notion to the duty to protect “absurd” and as contrary to the aim of the Genocide Convention, whose “whole point […] is to prevent the occurrence of the act,”105 which is a direct reference to the supplemental means of interpretation laid out in the Vienna Convention on the Law of Treaties:

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

1. leaves the meaning ambiguous or obscure; or

2. leads to a result which is manifestly absurd or unreasonable.106 (emphasis added).

Instead, the Court argued the obligations of state parties and their corresponding duty to act “arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”107 States also have a duty to assess whether genocide or a serious risk thereof exists in order to be able to determine their owed conduct to prevent under the Genocide Convention.108 It’s further not sufficient for state parties to claim genocide would have occurred regardless of their owed conduct to prevent because such justifications are impossible to prove since combined state conduct may have been able to produce a different result.109

Thus, States must try to reach the Genocide Convention’s aim and are obliged to take active measures in order to fulfill their obligation to prevent genocide under Article I. As a minimum, it’s argued that state parties, which have affirmed an unfolding genocide or a serious risk thereof, are expected to at least denominate the specific situation as such, resulting in the implicit condemnation of the committed acts.110 This obligation exists even for States with limited financial capacity and aims to deter perpetrators by naming and shaming their actions, which has been found to be an effective method of deterrence.111 And since the ICJ asks for effective measures within the framework of international law and within the capacity of a state, naming and shaming genocidal acts or risks thereof may very well be the lowest threshold states are expected to meet.

Furthermore, it’s important to highlight the extraterritorial dimension of the duty to prevent under Article I, meaning that state parties are required to prevent genocide even if it occurs outside of their respective territory.112 These extraterritorial obligations are based on the assumption that genocide presents a threat to global peace, which is why its prevention is seen as a global concern.113 It can therefore be concluded that the duty to take measures to prevent genocide exists regardless of territory or specific links to the state in question.114 The extent of the owed conduct under Article I, however, varies depending on the specific circumstances of a situation.

III. Current Situation in Gaza/Israel: Duty to Prevent?

According to U.N. bodies, civil society organizations,115 scholars,116 NGOs,117 and governments,118 there is reason to believe that the population of Gaza is at least at a serious risk for genocide due to the actions of the Israeli military, which would, in turn, trigger the duty of all State parties to the Genocide Convention to intervene with the aim of preventing an unfolding genocide. And because the prevention of genocide is also part of the international jus cogens, even non-state parties are legally bound to fulfill that very same obligation.

Under Article I of the Genocide Convention and as a first step, each State is thus obliged to assess if a genocide is being committed or if a serious risk thereof exists. If either were to be affirmed, States would then immediately have to take all measures within their power to avert or at least mitigate the situation. In the current situation of Gaza, these measures may include the denomination of genocide or a genocidal risk, targeted sanctions, calls for a permanent ceasefire, as well as the initiation of significant involvement of the appropriate U.N. organs (Security Council, General Assembly, etc.) in line with Article VIII of the Genocide Convention.

And while the exact scope of obligations still remains uncertain, the ICJ has asserted States with particularly strong economic, political, or diplomatic connections are expected to utilize those links and have to meet an increased threshold in order to fulfill their legal duties under the Genocide Convention.119 The United States immediately comes to mind as it maintains particularly close financial, economic, diplomatic, connections to Israel.120 It was also the first country to recognize Israeli statehood in 1948.121 And Since World War II, the United States has supported Israel with 158 billion dollars (not adjusted for inflation), which is much more than it has given to any other country.122 Because of those close links between the two States, the United States has to employ all available means and is expected to meet a higher threshold in terms of owed state conduct under the Genocide Convention. This however doesn’t relieve States with limited links to Israel of their duty to, at the very least, conduct a comprehensive risk assessment analysis. If that assessment leads to the conclusion of there being a serious risk of genocide, States then need to take all measures within their power in an attempt to avert or mitigate that risk.

Currently, several States have already expressed their growing concern about the situation that is unfolding in Gaza and the risk for genocide, including Spanish,123 Brazilian,124 Pakistani,125 and Belgian126 government officials, as well as states of the Arab League and African Union.127 However, States so far128 haven’t taken any meaningful additional measures, which may indicate a breach of their obligations under Article I of the Genocide Convention, particularly for countries with strong links to Israel. Due to its particularly strong economic and political links to Israel, the United States has therefore been repeatedly criticized for its unconditional support and lack of measures to prevent the humanitarian crisis currently unfolding in Gaza. The Center for Constitutional Rights even accused the U.S. of complicity in genocide by arguing that providing weapons with the knowledge that they would be used for genocidal purposes, constitutes a form of complicity.129

Civil society organizations, NGOs, U.N. bodies, and scholars have not only voiced their concerns but also made recommendations on suggested State conduct to ensure compliance with the Genocide Convention.

The aforementioned group of U.N. experts, for example, calls for an immediate ceasefire as the only possible measure to effectively prevent this “genocide in the making” but doesn’t go into alternative or additional steps that could be taken by States:

We are deeply distressed at the failure of Israel to agree to—and the unwillingness of the international community to press more decisively for—an immediate ceasefire. The failure to urgently implement a ceasefire risks this situation spiraling towards a genocide conducted with 21st century means and methods of warfare.130 (emphasis added).

The International Commission of Jurists, on the other hand, has made more detailed recommendations on how State parties should act to fulfill their obligations under the Genocide Convention:

In light of the above, the ICJ calls upon States who have a position of influence with the Government of Israel—particularly the United States—to take all reasonable measures within their power to prevent genocide in Gaza, including by calling for a ceasefire, taking steps to ensure the lifting of the siege and preventing the displacement of Palestinians outside the Gaza Strip, and to discontinue any military assistance, including arms sales, that would enable or facilitate genocide, and other crimes under International law.

The ICJ urges other States to immediately act under Article VIII of the Genocide Convention, by calling on the competent organs of the United Nations, including the UN Security Council, and particularly the UN General Assembly, to take urgent action under the U.N. Charter appropriate for the prevention and suppression of any acts of genocide in Gaza, including calling for an immediate ceasefire.131 (emphasis added).

Thus, the International Commission of Jurists is emphasizing the obligation of State parties to take all reasonable measures to prevent the unfolding genocide in Gaza. Like the U.N. expert group, they suggest States call for an immediate ceasefire and help ensure a lifting of the siege, as well as discontinuation of any military action. In addition, they ask States to call on the competent U.N. organs to aid their preventative efforts under the Genocide Convention.132 So far,133 no States have made use of this option. Instead, the U.N. Secretary General António Guterres has formally invoked Article 99 of the U.N. Charter134 for the first time since taking office to ensure the Security Council’s involvement in this “threat to the maintenance of international peace and security.” 135, 136 The resulting Security Council resolution, which was introduced by the United Arab Emirates, called for an immediate humanitarian ceasefire and the release of all hostages, but was vetoed by the United States.137 The General Assembly has since adopted a (unbinding) resolution similar in content, which passed with 153 votes in favor, 10 against (including the United States, Israel, and Austria), and 23 abstentions (including Argentina, Italy, the Netherlands, South Sudan, the United Kingdom, and Ukraine).138

Regarding the risk of genocide against the population of Israel, there has been widespread support from the international community for the Israeli government in their fight against Hamas since the October 7 attacks (naming and shaming). This support has gone beyond statements, with the United States (e.g.) supporting the Israeli military with additional military supplies.139

Because Hamas is a terrorist group, States have limited influence over its actions and little to no diplomatic links to its leaders. There have been no open declarations of support by States or proven military aid. Therefore, there currently isn’t any reason to believe state parties may be violating their treaty obligation to prevent in relation to the risk of genocide against the Israeli people.

IV. Concluding Thoughts and the Role of the ICJ

Although the Genocide Convention might seem like first international law instrument to turn to during a potential unfolding genocide, its current role (and that of international law generally) during such situations is anything but clear, which comes with a number of negative implications. Furthermore, it’s also difficult to determine whether the Genocide Convention is even having a significant impact in the prevention of genocide. Because while it was certainly a strong and crucial statement after World War II and the Holocaust, history shows that the international community has since failed to prevent many genocidal attacks, particularly during the 1990s in Rwanda and the former Yugoslavia.

Those experiences ultimately led to the “resurrection” of the Genocide Convention’s duty of states to prevent genocide.140 But even this so-called “resurrection” hasn’t had the desired effect as genocide is still a regular and ongoing occurrence around the world. Recent examples include (but are not limited to) situations in Myanmar, Yemen, Darfur, Ethiopia, Ukraine, Nagorno-Karabakh, and now (potentially) Gaza/Palestine. In all of these instances, the international community was unable to prevent unfolding genocides. And the experiences from the 1990s don’t seem to have improved the effectiveness of the international community at preventing genocide as early warning signs are frequently ignored despite enormous efforts by civil society organizations, NGOs, and human rights activist.141

This failure to prevent might be explained by diplomatic, political, or economic considerations (to name a few) but also suggests a breach of duty obligations under the Genocide Convention. Regarding already committed genocide, on the other hand, states, international institutions and judicial bodies (such as the International Criminal Court) seem to be much more aware and active, indicating a prioritization of a penal, not a preventative, approach. This approach however shifts the focus away from state responsibilities and their potential preventative duties to the concept of individual criminal responsibility.

One explanation for this could be the apparent emphasis on the criminalization and punishment in the Genocide Convention, as opposed to its prevention. Its preventative aim is only referenced in two ambiguous provisions.142 And although the I.C.J. has clarified and elaborated on what that duty of States may encompass in practice, uncertainty seems to prevail among state parties. It can also be questioned whether the I.C.J., as the competent judicial organ of the Genocide Convention, even possesses the ability or authority to impact unfolding situations in a timely and meaningful manner.

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.143 (emphasis added).

Every State party can therefore ask the Court to determine whether a certain situation constitutes genocide or a serious risk thereof and whether treaty parties are fulfilling their obligations under the Genocide Convention. The Court also has the option of indicating provisional measures144 when there’s a real and immediate risk of irreparable prejudice or consequences and strong sense of urgency.145 Recent cases concerning allegations of genocide have included proceedings initiated by Myanmar and Ukraine.146 In the latter case, Ukraine asked the Court to confirm that Russia’s invocation of genocide to support its unlawful invasion in February of 2022 was not justified. This was as reaction to Russia trying to justify its use of force by claiming to prevent and punish an alleged genocide in the Luhansk and Donetsk regions.147 But the Court found there to be a lack of evidence in support of Russia’s allegation of genocide against Ukraine, which is why it issued an order for provisional measures that obliged Russia to immediately suspend its military operations in Ukraine.148

A similar order could also be a possibility in the current situation as both Israel and Palestine are parties to the Genocide Convention. In the case of Ukraine v. Russia, the Court acted within a few weeks, and was therefore able to respond relatively quickly (in under three weeks).149 At the stage of provisional measures, the alleged violation of the Genocide Convention also doesn’t yet have to be proven. Instead, claims have to be plausible. In the words of the Court, its “task is to establish whether the acts complained of […] appear to be capable of falling within the provisions of the Genocide Convention.”150 As analyzed, this threshold appears to have been reached in the current situation in Gaza.151

Such an order would certainly send a strong message to both Israel and the international community. However, although legally binding on State parties,152 the ICJ lacks a sufficient enforcement mechanism. And while Israel might be more likely to follow an order from the Court than Russia (e.g.), the international community would still have to get involved in order to ensure compliance. Israel’s denial of Palestinian statehood would be another potential issue to contend with.

Theoretically, Palestine (or another State party) could also initiate proceeding on the merits of a potential failure of another State party in fulfilling their obligation to prevent under the Genocide Convention. However, the likelihood of an order for provisional measures against a state party other than Israel seems less likely but could certainly still be a useful option to ensure compliance with the Genocide Convention.

To conclude, it seems to be apparent that international law may not always be best equipped to meaningfully respond to unfolding situations of genocide or other atrocity crimes. On the other hand, treaties like the Genocide Convention have been created precisely for this purpose. It is therefore essential for the international community to consider the repercussion for the legitimacy of international law and its institutions if fundamental international obligations are disregarded. The prevention of genocide, the so-called crime of crimes,153 has to be a priority for the international community in order to uphold the most important values of the international community. The notion of “never again” can’t lose significance and the Genocide Convention provides one crucial legal instrument in the prevention and fight against genocide.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Kofi Annan, Secretary General of the United Nations, Speech at Stockholm International Forum (Jan. 26, 2004), available online. ↩

2. 2.

   Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 [hereinafter Genocide Convention], available online.

3. 3.

   G.A. Resolution 96 (I), UN Doc. A/RES/96(I), The Crime of Genocide (Dec. 11, 1946), available online. ↩

4. 4.

   Id. ↩

5. 5.

   United Nations Economic and Social Council, Sub-Commission on the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide ¶ 14 (Jul. 2, 1985), download. ↩

6. 6.

   Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ, Advisory Opinion, 1958 I.C.J. Rep. 15 (May 28, 1951), available online. ↩

7. 7.

   United Nations Economic and Social Council, supra note 5, at ¶ 14. ↩

8. 8.

   Joseph Biden, President of the United States, Remarks on the October 7th Terrorist Attacks and the Resilience of the State of Israel and its People (Oct. 18, 2023), available online. ↩

9. 9.

   Benjamin Netanyahu, Prime Minister of Israel, Declares War on Palestinian Militants Hamas, Wall St. J., Oct. 7, 2023, video. ↩

10. 10.

    Emanuel Fabian, Defense Minister Announces “Complete Siege” of Gaza: No Power, Food or Fuel, Times of Israel, Oct. 9, 2023, available online. ↩

11. 11.

    Id. ↩

12. 12.

    Other examples include COGAT Chief Addresses Gazans: “You Wanted Hell, You Will Get Hell”, Times of Israel, Oct. 10, 2023, available online; Center for Constitutional Rights, Emergency Legal Briefing Paper 18–23, Oct. 18, 2023, [hereinafter Legal Briefing Paper], available online. ↩

13. 13.

    See Joint Urgent Appeal to UN Special Procedures on Israel’s Total Warfare on Gaza’s Civilian Population, Al-Haq (Oct. 12, 2023) [hereinafter Al-Haq], available online. ↩

14. 14.

    See id.; Legal Briefing Paper, supra note 12. ↩

15. 15.

    See Mohsen al Attar, Public Statement: Scholars Warn of Potential Genocide in Gaza, Opinio Juris (Oct. 15, 2023), available online. ↩

16. 16.

    International Commission of Jurists, Gaza/Palestine: States have a Duty to Prevent Genocide (Nov. 17, 2023), available online. ↩

17. 17.

    Fernando Heller, Podemos Leader Calls for Protests Against Israel’s “Genocide” in Gaza, Euractiv, Oct. 15, 2023, available online; Naveed Butt, Pakistan Terms Gaza Siege Genocide of Palestinians, Business Recorder, Oct. 16, 2023, available online; Press Release, AU, Joint Statement by the African Union Commission and the General Secretariat of the League of Arab States on the Grave Situation in Gaza (Oct. 14, 2023) [hereinafter African Union], available online. ↩

18. 18.

    Raz Segal, A Textbook Case of Genocide: Israel Has Been Explicit About What It’s Carrying Out In Gaza: Why Isn’t The World Listening?, Jewish Currents (Oct. 13, 2023), available online. ↩

19. 19.

    Press Release, OHCHR, Gaza: UN Experts Call on International Community to Prevent Genocide Against the Palestinian People (Nov. 16, 2023) [hereinafter OHCHR Calls for Prevention of Genocide], available online. ↩

20. 20.

    Bruce Hoffmann, Understanding Hamas’s Genocidal Ideology: A Close Read of Hamas’s Founding Documents Clearly Shows Its Intentions, The Atlantic, Oct. 10, 2023, available online; see also Jans David Ohlin, International Criminal Law Analysis of the Situation in Israel, Opinio Juris (Oct. 12, 2023), available online

    (analyzing the October 7 attack as genocidal in nature). ↩

21. 21.

    JP Leskovich, Israeli Families of Hamas Victims File ICC Complaint as Accusations of War Crimes, Genocide Exchanged, Jurist (Nov. 6, 2023), available online; Israel–Palestine: The Role of International Justice, UNRIC (Nov. 17, 2023), available online. ↩

22. 22.

    See Three Rights Groups File ICC Lawsuit Against Israel Over Gaza “Genocide”, Al Jazeera, Nov. 9, 2023, available online.

    (The complaint was filed by Al-Haq, Al Mezan, and the Palestinian Centre for Human Rights). ↩

23. 23.

    Karim A. A. Khan, ICC Prosecutor, Statement from Cairo on Situation in the State of Palestine and Israel (Oct. 30, 2023), available online. ↩

24. 24.

    Karim A. A. Khan, ICC Prosecutor, Statement from Ramallah on the Situation in the State of Palestine and Israel (Dec. 6, 2023), available online. ↩

25. 25.

    Defense for Children International—Palestine v. Biden, CCR, available online (last visited Dec. 19, 2023). ↩

26. 26.

    OHCHR Calls for Prevention of Genocide, supra note 19. ↩

27. 27.

    Jens David Ohlin, International Criminal Law Analysis of the Situation in Israel, Opinio Juris (Oct. 12, 2023), available online; Ryan Goodman, Michael W. Meier & Tess Bridgeman, Expert Guidance: Law of Armed Conflict in the Israel–Hamas War, Just Security (Oct. 17, 2023), available online. ↩

28. 28.

    Björn Schiffbauer, Christian J. Tams & Lars Christian Berster, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary, General Introduction ¶ 9 (2014), paywall, preview archived; Rafał Lemkin: A Hero of Humankind 19 (Agnieszka Bienczyk-Missala & Stawomir Debski eds., 2010), preview archived. ↩

29. 29.

    Id. ¶ 8. ↩

30. 30.

    Id. ↩

31. 31.

    Ratification of the Genocide Convention, OGPRtoP, available online (last visited Dec. 19, 2023). ↩

32. 32.

    Status of Treaties: Genocide Convention, UNTC, available online (last visited Dec. 19, 2023). ↩

33. 33.

    Legal Briefing Paper, supra note 12, at 4. ↩

34. 34.

    Ratification of the Genocide Convention, supra note 31. ↩

35. 35.

    Id.; Prosecutor v. Goran Jelisić, ICTY IT-95-10-T, Judgement ¶ 60 (ICTY TC, Dec. 14, 1999), available online; United Nations Economic and Social Council, supra note 5, at ¶ 16. ↩

36. 36.

    Application of Convention on Prevention and Punishment of Crime of Genocide (The Gambia v. Myanmar), Request for the Indication of Provisional Measures, 2020 I.C.J. Rep. 1 ¶ 41 (Jan. 23, 2020), available online. ↩

37. 37.

    Id. ↩

38. 38.

    See Genocide Convention, supra note 2, at Art. IX. ↩

39. 39.

    Id. Art. III. ↩

40. 40.

    Id. Art. V. ↩

41. 41.

    Id. Art. VI. ↩

42. 42.

    Id. Art. VII. ↩

43. 43.

    Schiffbauer, Tams & Berster, supra note 28, at ¶ 6. ↩

44. 44.

    Id. ↩

45. 45.

    Id. ¶ 11. ↩

46. 46.

    Id. ¶ 8. ↩

47. 47.

    Id. ¶ 19. ↩

48. 48.

    See Genocide Convention, supra note 2, at Art. I. ↩

49. 49.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I, at ¶ 17. ↩

50. 50.

    See Genocide Convention, supra note 2, at Art. II. ↩

51. 51.

    See Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 4 (adopted May 25, 1993, as last amended Jul. 7, 2009) [hereinafter ICTY Statute], available online. ↩

52. 52.

    See Statute of the International Tribunal for Rwanda, S.C. Res. 955, Art. 2 (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩

53. 53.

    See Rome Statute, Art. 6. ↩

54. 54.

    See Genocide Convention, supra note 2, at Art. II. ↩

55. 55.

    Id. ↩

56. 56.

    Id. ↩

57. 57.

    International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010, at 2 (Jun. 11, 2011) [hereinafter Elements of Crimes], available online, archived. ↩

58. 58.

    The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, ¶ 505 (ICTR TC I, Sep. 2, 1998), available online. ↩

59. 59.

    Al Attar, supra note 15. ↩

60. 60.

    Genocide Convention, supra note 2, at Art. II. ↩

61. 61.

    The Prosecutor v. Athanase Seromba, ICTR-2001-66-I, Judgment, ¶ 319 (ICTR TC I, Dec. 13, 2006), available online. ↩

62. 62.

    United Nations Economic and Social Council, supra note 5, at ¶ 29. ↩

63. 63.

    Id. ¶ 30; Schiffbauer, Tams & Berster, supra note 28, at ¶ 21. ↩

64. 64.

    Samuel Totten & Henry Theriault, The United Nations Genocide Convention, An Introduction 20 (2020), preview archived. ↩

65. 65.

    The Prosecutor v. Musema, ICTR-96-13-T, Judgment, ¶ 165 (ICTR TC I, Jan. 27, 2000), available online. ↩

66. 66.

    Legal Briefing Paper, supra note 12, at 4; International Commission of Jurists, supra note 16. ↩

67. 67.

    Id.; Genocide, OGPRtoP, available online (last visited Dec. 22, 2023). ↩

68. 68.

    The Prosecutor v. Jean-Paul Akayesu, supra note 58, at ¶ 523. ↩

69. 69.

    United Nations Economic and Social Council, supra note 5, at ¶ 38; Shane Darcy, The World Court and the Spectre of Genocide: The ICC Is Not the Only Hague Court With Jurisdiction Over Gaza, Just. in Conflict (Oct. 16, 2023), available online. ↩

70. 70.

    United Nations Economic and Social Council, supra note 5. ↩

71. 71.

    Totten & Theriault, supra note 64. ↩

72. 72.

    The Prosecutor v. Radovan Karadžić, ICTY IT-95-5/18-T, Judgment, ¶ 550 (ICTY TC, Mar. 24, 2016), available online. ↩

73. 73.

    Legal Briefing Paper, supra note 12, at 9; see also Ferdinand Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze v. The Prosecutor, ICTR-99-52-A (ICTR TC I, Nov. 28, 2007), available online. ↩

74. 74.

    Al-Haq, supra note 13.; International Commission of Jurists, supra note 16. ↩

75. 75.

    United Nations Economic and Social Council, supra note 5, at ¶ 38. ↩

76. 76.

    Genocide Convention, supra note 2, at Art. I. ↩

77. 77.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 31. ↩

78. 78.

    Id. ¶ 20. ↩

79. 79.

    Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. Rep. 43, ¶ 162 (Feb. 26, 2007) [hereinafter Bosnia v. Serbia], available online. ↩

80. 80.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 21. ↩

81. 81.

    Id. ↩

82. 82.

    Id. ↩

83. 83.

    Id. ¶ 31. ↩

84. 84.

    Id. ¶ 22. ↩

85. 85.

    Björn Schiffbauer, The Duty to Prevent Genocide Under International Law: Naming and Shaming as a Measure of Prevention, 12 Genocide Stud. & Prevention 83, 84 (Dec. 2018), available online, doi. ↩

86. 86.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 31. ↩

87. 87.

    Genocide Convention, supra note 2, at Art. VIII. ↩

88. 88.

    Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 21. ↩

89. 89.

    Id. ¶ 32. ↩

90. 90.

    Id. ↩

91. 91.

    Id. ¶ 22. ↩

92. 92.

    Id. ↩

93. 93.

    Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

94. 94.

    Id. Art. 31(1). ↩

95. 95.

    Schiffbauer, supra note 85, at 85. ↩

96. 96.

    Id. ↩

97. 97.

    Id. ↩

98. 98.

    Id. ↩

99. 99.

    Id.; Bosnia v. Serbia, supra note 79, at ¶ 430. ↩

100. 100.

     Bosnia v. Serbia, supra note 79, at ¶ 430. ↩

101. 101.

     Id. ↩

102. 102.

     Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Request for the Indication of Provisional Measures, 2022 I.C.J. Rep. 211, ¶ 58 (Mar. 16, 2022) [hereinafter Ukraine v. Russian Federation], available online. ↩

103. 103.

     See G.A. Res. 56/83, A/Res/56/83, Responsibility of States for Internationally Wrongful Acts, Annex Art. 4 (Jan. 28, 2002), available online. ↩

104. 104.

     Bosnia v. Serbia, supra note 79, at ¶ 430–31. ↩

105. 105.

     Id. ¶ 431. ↩

106. 106.

     Vienna Convention, supra note 93, at Art. 32. ↩

107. 107.

     Bosnia v. Serbia, supra note 79, at ¶ 431. ↩

108. 108.

     Id. ↩

109. 109.

     Id. ↩

110. 110.

     Schiffbauer, supra note 85, at 86. ↩

111. 111.

     Id. at 87. ↩

112. 112.

     Id. at 86. ↩

113. 113.

     Id. ↩

114. 114.

     Id. ↩

115. 115.

     See id.; Legal Briefing Paper, supra note 12. ↩

116. 116.

     Al Attar, supra note 15. ↩

117. 117.

     International Commission of Jurists, supra note 16. ↩

118. 118.

     See Heller, supra note 17; Butt, supra note 17; African Union, supra note 17. ↩

119. 119.

     Bosnia v. Serbia, supra note 79, at ¶ 430. ↩

120. 120.

     U.S. Relations with Israel: Fact Sheet, U.S. Dept. of State (updated Jan. 30, 2023), available online (last visited Dec. 22, 2023). ↩

121. 121.

     Id. ↩

122. 122.

     Nicole Narea, How the US became Israel’s Closest Ally: The US Has Stood With Israel Throughout History. What Does it Mean for the Gaza War?, Vox, Oct. 13, 2023, available online. ↩

123. 123.

     Heller, supra note 17. ↩

124. 124.

     Maayan Jaffe-Hofmann, Brazilian MPs Challenge President, Visit Israel on Solidarity Mission, The Jerusalem Post, Dec. 7, 2023, available online. ↩

125. 125.

     Butt, supra note 17. ↩

126. 126.

     Priyanka Shankar, “Inhumane”: Top Belgium Officials Criticize Israeli Bombing of Gaza, Al Jazeera, Nov. 10, 2023, available online. ↩

127. 127.

     African Union, supra note 17. ↩

128. 128.

     As of December 15, 2023. ↩

129. 129.

     Legal Briefing Paper, supra note 12, at 11. ↩

130. 130.

     OHCHR Calls for Prevention of Genocide, supra note 19. ↩

131. 131.

     International Commission of Jurists, supra note 16. ↩

132. 132.

     Genocide Convention, supra note 2, at Art. VIII. ↩

133. 133.

     As of December 15, 2023. ↩

134. 134.

     U.N. Charter, Art. 99. ↩

135. 135.

     Id. ↩

136. 136.

     Daniel Forti, Policy Alert: UN Secretary-General Invokes Article 99 in Letter to Security Council on Gaza, Just Security (Dec. 7, 2023), available online. ↩

137. 137.

     Press Release, S.C., SC/15519, Security Council Fails to Adopt Resolution Demanding Immediate Humanitarian Ceasefire in Gaza on Account of Veto by United States (Dec. 8, 2023), available online. ↩

138. 138.

     UN General Assembly Votes by Large Majority for Immediate Humanitarian Ceasefire During Emergency Session, UN News, Dec. 12, 2023, available online; UNGA Demands Ceasefire in Israel’s War on Gaza: How Your Country Voted, Al Jazeera, Dec. 13, 2023, available online. ↩

139. 139.

     Jim Garamone, U.S. Flowing Military Supplies to Israel, as Country Battles Hamas Terrorists, U.S. Dept. of Defense News, Oct. 10, 2023, available online. ↩

140. 140.

     Schiffbauer, Tams & Berster, supra note 27, at Art. I, at ¶ 22. ↩

141. 141.

     See e.g., Ogunsakin Mustapha, Group Warns UN over Imminent Genocide in Ethiopia, Gavel Int’l, Nov. 26, 2021, available online. ↩

142. 142.

     See Genocide Convention, supra note 2, at Arts. I, VIII. ↩

143. 143.

     Id. at Art. IX. ↩

144. 144.

     See Statute of the International Court of Justice, Art. 41, 59 Stat. 103 (Jun. 26, 1945) [hereinafter ICJ Statute], available online. ↩

145. 145.

     Ukraine v. Russian Federation, supra note 102, at ¶ 65. ↩

146. 146.

     Darcy, supra note 69. ↩

147. 147.

     Id. ↩

148. 148.

     Ukraine v. Russian Federation, supra note 102, at ¶ 81. ↩

149. 149.

     Darcy, supra note 69. ↩

150. 150.

     Ukraine v. Russian Federation, supra note 102, at ¶ 43. ↩

151. 151.

     Darcy, supra note 69. ↩

152. 152.

     ICJ Statute, supra note 144, at Art. 41. ↩

153. 153.

     Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Sentence (ICTR TC I, Oct. 2, 1998), available online. ↩

The ICC is a court of last resort for genocide prosecutions, with primary jurisdiction given to states unless they are unwilling or unable to prosecute. Furthermore, the evidential and substantive barriers to a genocide conviction have resulted in declination of genocide prosecutions. The Prosecutor in 2006 found that in regards to the Situation in Darfur, Sudan, there are “reasonable grounds to believe that the individuals identified have committed crimes against humanity and war crimes,” but that there was insufficient grounds for genocide due to the lack of genocidal policy.3 In 2009, although the Prosecutor filed a charge of genocide against Sudan President Omar al-Bashir, the ICC Pre-Trial Chamber initially rejected the charge on evidentiary grounds before an arrest warrant was later issued.4

Of the thirty-one cases before the ICC since its inception, none but the al-Bashir case have included a charge of genocide, despite numerous counts of war crimes and crimes against humanity laid against individual perpetrators. This evidences the high threshold required to overcome the prescriptive barrier in the language of the charge; that is, the requirement for intent to destroy. Due to the lack of precedent created by the ICC, the Court will have to look to the persuasive, but non-binding, jurisprudence of the ICTY and ICTR in interpreting and practically applying the elements of the crime.

The contentious material elements of genocide under Article 6 of the Rome Statute, in relation to the intention requirement, are that the perpetrator intended to destroy wholly or partially the protected group, and that the unlawful conduct “took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.”5 This specific mental element must therefore coincide with an evidentiary burden demonstrating a widespread, systematic, or general campaign of destruction from which specific genocidal intent can be inferred, in the absence of direct evidence from statements or policy instructions.6

The ICTR has relied on a reasonable inference approach to finding intent, drawing from the duration, intensity, and effect of unlawful conduct meeting the physical acts (for example, targeted killings, causing serious harm, or forceable transfer of children).7 The Tribunal held in Karemera et al. that the “scale of the assaults and the brutal and systematic manner” created the only reasonable inference that the perpetrators possessed the requisite specific intent, attributing it to the military commanders.8 This methodology was affirmed in Muvunyi, in which the Tribunal found that “in the absence of direct evidence, a perpetrator’s genocidal intent may be inferred from relevant facts and circumstances […] provided that it is the only reasonable inference.”9

Although attributing specific intent based on inference from factual circumstances, the “only reasonable inference” threshold is a high one, similarly applied by the ICTY.10 However, the ICTY in Blagojević considered that awareness of the destruction of the protected group did not amount to the requisite intention; the destruction must be the “aim of the underlying crime,” thereby distinguishing specific intent from traditional intent analysis for the purpose of attributing mens rea.11

One of the more exhaustive formulations of the kind of pattern of conduct creating the reasonable inference of genocidal intent comes from the ICTR in Gacumbitsi. The Tribunal considered holistically “deeds, utterances, and general context” giving rise to the necessary inference, with the latter being inferred from the scale of atrocities, and the systematic direction of acts against victims deliberately targeted on account of their membership whilst excluding members of other groups.12

The Tribunal did not consider a numeric threshold of victim harm as necessary to establish the existence of genocidal intent—only the intent itself to, at least in part, physically destroy the group—notwithstanding the scale of atrocities being a relevant factor.13 In relation to the nature of acts leading to a reasonable inference, the Tribunal reaffirmed precedent to sum a list of relevant factors creating possible grounds for genocidal intent:

the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing.14

In doing so, the Tribunal found grounds for a genocide conviction, and furthermore held that the specific intent in the actus reus of the crime “is in itself” evidence establishing the mens rea element of intent to perpetrate those acts.15 However, the Tribunal in Sikirica, whilst upholding this reasoning, noted the “need to distinguish between the individual intent of the accused and the intent involved in the conception and commission of the crime.”16 As such, for specific genocidal intent to be inferred and attributed to an individual perpetrator, such as a Head of State, there must be a criminal enterprise aimed at the objective of destroying a protected group. The aim must be reasonably inferred from the factual circumstances of the act themselves, and attributable to both the executors of the acts and the perpetrator alleged to be responsible.

III. Evidence of Alleged Acts of Genocide Perpetrated by Israel

The physical grounds for genocide alleged in the claim filed against Israel focus predominantly on the alleged targeted killings and serious harm perpetrated against Palestinian civilians in Gaza. Although focussing on the physical elements of the actus reus first, it must necessarily follow that the perpetration of those acts be committed against Palestinian civilians in an attempt to, at least in part, specifically destroy Palestinians as an ethnical group.17 The claim seeks to establish three of the culpable acts giving rise to genocide under Article 6 of the Rome Statute: targeted killings, infliction of serious harm, and infliction of conditions calculated to bring about physical destruction.

A. Targeted Killings and Infliction of Serious Harm

Whilst the ICTR did not require a quantitative threshold of civilian killings to give rise to culpability, the extent of harm goes to the scale consideration outlined by the Tribunal in Gacumbitsi and to whether the killings may properly be viewed as systematic, pattern-forming, and deliberate. As such, although the extent of harm does not itself form a material physical part of the actus reus of genocide, it is a relevant consideration for the factual circumstances necessary to reasonably infer destructive intent. The United Nations Office for the Coordination of Humanitarian Affairs reports over 18,000 Palestinian casualties in Gaza, along with over 49,000 injuries and destruction of critical infrastructure, including 18 hospitals.18 These figures are consistent with international media estimations, although have not been independently verified.19

A number of these fatalities include civilians and children, and a number of protected properties destroyed include hospitals and civilian infrastructure. The Palestinian Ministry of Health alleges that approximately 8,000 children have been killed, with the vast majority of deaths and injuries being protected civilians and not Hamas combatants.20 The verification of these figures—likely impossible whilst the Israel–Hamas conflict is active—will become an important investigative duty for the Prosecutor if (and only if) he accepts the grounds for a genocide charge.

It is arguable that the civilian death and destruction to civilian infrastructure form part of the incidental consequences of a lawful military operation against Hamas, in de facto control of Gaza and allegedly disguising itself amongst the civilian population. In support of this theory, Israel may point to the unlawful attack perpetrated by Hamas on October 7, 2023. The attack intentionally targeted civilians in a densely-populated area, resulting in significant loss of life and kidnapping of hostages, in grave violation of international humanitarian law. This particular attack, one of many perpetrated by Hamas combatants, involved not only bombardment (a means of attack that cannot adequately distinguish military from civilian targets in urban areas, violating the principle of distinction and proportionality), but targeted killing, kidnapping, and perpetration of sexual crimes intentionally and directly committed by Hamas combatants. Although acts of reprisal for an unlawful attack can never be taken against civilian populations under Article 51(6) of Additional Protocol I, it is certainly a relevant consideration in Israel’s military policy against Hamas control centers in Gaza.

However, the indiscriminate and disproportionate infliction of harm to civilians in a military operation is a violation of established laws and customs of international law, and a war crime under Article 8(2)(b)(iv) of the Rome Statute. Article 51 of Protocol Additional I to the Geneva Conventions provides for the prohibition on indiscriminate attacks, which it defines as those that, inter alia, are not directed at a specific military objective, employ a means of combat that cannot be directed at such an object, or employ a method of combat that cannot limit the effect of the attack to military objectives as required.21 As well as specifically outlining that attacks that may be expected to cause incidental harm in excess of the advantage conferred are prohibited, Article 51 also prohibits bombardment that treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.22

As such, the attack perpetrated by Hamas is almost certainly a violation of international humanitarian law. So too are rocket attacks that do not, or cannot, distinguish between military and civilian objects in densely population areas. Furthermore, to the extent that attacks on the Gaza Strip are taken in retaliation to those attacks, attacks against civilian populations by way of reprisal are prohibited under the Geneva Conventions.23 Where evidence is presented that incidental death and destruction to the civilian population outweighs any apparent military objective, which is likely difficult to establish in the case of bombardment of a concentrated civilian area alleged to contain some relatively under-resourced Hamas combatants proportionate to the civilian population, Israel must show that such a military objective was legitimate and proportionate. Under Article 57(1) of Additional Protocol I, the burden of proof would be on Israel to demonstrate that constant care was adequately taken.

Significant verified evidence demonstrates Israeli forces’ reckless disregard and intentional targeting of protected persons,24 the United Nations and the International Committee of the Red Cross have reported attacks on protected personnel,25 and indiscriminate carpet-bombing has destroyed civilian housing, religious buildings, hospitals, and U.N. safe zones.26 The estimated scale of civilian harm, likely amounting to crimes against humanity and violations of peremptory norms of international humanitarian law notwithstanding the genocide allegation, prima facie gives rise to culpability for the physical component of the actus reus.

B. Infliction of Conditions Likely to Bring About Physical Destruction

The claim against Israel argues that Israel’s military policy in isolating Gaza amounts to the infliction of conditions of life calculated to bring about the physical destruction of the Palestinian people. This claim seeks to use the blockage of food, water, electricity, fuel, and humanitarian aid, as well as the establishment of physical barriers leading to and from Gaza, as grounds for the physical component (independent of the specific intention element) of the actus reus under Article 6(c). It is necessary to determine whether these grounds are prima facie met, as well as whether the scope of “infliction” includes both direct acts (i.e., destroying aid supplies) and indirect acts or omissions (i.e., not permitting aid to travel through Israeli-controlled routes), with the latter implying a duty of responsibility from Israel to the Palestinian citizenship during conflict.

Much of the law on destructive conditions of life stems from the prosecution of crimes related to concentration camps, where physical detention and an active system of oppression inflicts such conditions on a group of persons directly.27 This scenario is distinguished from the Situation in Palestine, where although the population in Gaza is subject to attack and isolation, the Palestinians are not held under the direct control of Israeli forces. However, case law from the ICTY and ICTR has found that “the creation of circumstances” leading to death over time meets the requisite threshold.28 It is arguable, therefore, that indirect acts and omissions, within the context of a sustained pattern of systematic conduct, result in the broad creation of circumstances that inevitably lead to death.

The ICTY in Stakic considered that acts fulfilling these criteria include “subjecting the group to a subsistence diet, systematic expulsion from homes and denial of the right to medical services,” along with creating circumstances where a lack of housing, clothing, and hygiene would lead to death.29 This reasoning was affirmed by the ICTR in both Rutaganda and Akayesu, which in citing the criteria established by the ICTY, set the “minimum standard” as an objective quantification of the circumstances of life.30 Under this minimum requirement, the conditions of life are prima facie considered unlawful due to the inevitability of physical destruction.31

This is consistent with the elements of the crime of genocide, which provide that “the deliberate deprivation of resources essential to survival” satisfies the physical element of Article 6(c). However, there is a “calculation” element to the actus reus that must be read alongside the specific intention requirement of the broader crime of genocide. As such, to be culpable, Netanyahu must be held responsible for the intentional infliction of circumstances that are both calculated to bring about physical destruction and perpetrated with the aim of destruction.

Notwithstanding the mental element that will be considered separately due to its underlying policy nature, it is at least arguable at the pre-trial stage that Israeli forces have created circumstances in which minimum standards of life have been deprived. The World Health Organization has recognised by special resolution the deprivation of humanitarian relief, impediment of medical personnel, and attacks on protected health workers in violation of international humanitarian law.32 The Israeli Defence Minister has stated that “no electricity, no food, no water, and no fuel” will be accessible to Gaza, imposing a “complete siege” and creating circumstances in which minimum standards are deprived.33 Due to the attribution of the order to the Israeli Government, it is likely that this statement meets the necessary policy intent and calculation requirements under Article 6(c).

Whilst Israel may invoke the right to self-defence and point to Hamas’ control of the area as grounds for the policy—given that there is no requirement to provide assistance to the civilian population of the opposing party during armed conflict—the disproportionate implications of the isolation are certainly enough to bring about death over time. The United Nations has reported that Israel’s active policy of bombardment in civilian-populated areas, including hospitals, shelters, and United Nations refuges, is directly causing circumstances in which critical resources are inaccessible.34 Furthermore, the United Nations has reported 1.5 million civilians displaced due to targeted or incidental aerial strikes on housing and shelters, which the ICTY and ICTR considered relevant factors in assessing conditions of life, leading to overcrowding and a disease risk.35 Although Israel’s omission of supplying resources to Gaza likely would not be a persuasive consideration as to whether Israel sought to deprive civilians’ minimum standards of life, Israel’s military policy that circumstances of deprivation and displacement may (at least for the purpose of investigating the claim filed).

IV. Evidence of Specific Genocidal Intent

As aforementioned, the physical elements of the actus reus must be accompanied by specific genocidal intent; i.e., the intention underlying the culpable acts must be the partial or total destruction of the Palestinian people. This concept of specific intent forms part of the act of genocide itself, after which the mens rea must be established for criminal liability, although the existence of specific genocidal intent accompanying the acts perpetrated necessarily implies intent to perpetrate those acts themselves.36 If applying the previous reasoning from the ICTY and ICTR, that specific intent must be discernible from official policy or statements in the first instance, after which the ICC will determine whether it is possible to infer it from a systematic pattern of conduct.

A. Direct Evidence of Specific Genocidal Intent

Express policy statements regarding the extent of destruction aimed at the Palestinian people themselves, by virtue of their status as Palestinian, are limited. Direct evidence in the form of rhetoric may be broadly conceptualized as utterances or policy documents that demonstrate genocidal motivation to destroy a group, including through dehumanizing language,37 discriminatory anger or disgust,38 and an intent to spare no quarter (particularly against civilians and children).39 Derogatory rhetoric is not determinative nor decisive in attributing genocidal motivation, but is a relevant to it.40

The most relevant example of direct evidence of genocidal motivation comes from Israel’s Defence Minister in ordering a “complete siege” of Gaza: “We are fighting against human animals.”41 Such descriptive language of the “other” is certainly dehumanizing and derogatory. However, it is tenuous as to, firstly, whether it is specifically attributable to the Palestinian people as an ethnic group and not Hamas as an organization; and, secondly, whether it may be legitimately attributed to Israel and Netanyahu. However, the latter could be applied through command responsibility in failing to exercise control with awareness of culpable acts, as was the case with the ICC’s arrest warrant for Putin.42

The reference to a “complete siege” is not unlawful itself, unless demonstrative of a policy of no quarter in ordering the execution or disproportionate collateral harm to non-combatants. Whilst such a pattern of conduct may be inferred from the destruction of civilian areas, protected buildings, and civilian life, there is limited evidence that this was the specific intent of the Israeli forces. The International Federation for Human Rights has asserted that Israel’s military command has demonstrated the specific genocidal intent element through public statements, including the aforementioned dehumanizing rhetoric, as well as intent to “turn Gaza into a desert island” and focus on “damage not accuracy.”43

Such statements, if applied to the population in Gaza as a whole and not isolated to legitimate Hamas-occupied areas (which is practically inferable from the pattern of conduct following the Hamas attack on Israel), certainly imply violations of the principles of non-indiscriminate attacks and proportionality customary in international humanitarian law. However, given the high threshold required for a determination of genocide underlying other war crimes or crimes against humanity, it is arguable that Israel’s policy declarations do not themselves amount to direct evidence supporting specific genocidal intent, but are rather relevant factors in a broader consideration of the systematic pattern of conduct, per the Popović judgment.44

B. Indirect Evidence from Which Specific Genocidal Intent is the Only Reasonable Inference

The previously discussed case law from the ad hoc tribunals demonstrate the high burden of proof required by the Court to infer specific genocidal intent from factual circumstances. In particular, the precedent thus far requires that the pattern of conduct leads to specific genocidal intent as “the only reasonable inference.” However, non-determinative but relevant statements, such as those attributable to Israel’s Ministry of Defence, will undoubtedly form part of the broader determination of specific genocidal intent.

Furthermore, it is within the ICC’s power to attribute specific intent to Netanyahu through the chain of command. The ICTR considered ministerial position and power to exert political influence as appropriate factors for a determination of responsibility.45 Furthermore, the ICTY confirmed in Krstic that: “The inference that a particular atrocity was motivated by genocidal intent may be drawn even where the individuals to whom the intent is attributable are not precisely identified.”46 In doing so, the ICTY inferred genocidal intent on the part of the perpetrator through command responsibility, despite any record of statements indicating that the killing of Bosnian Muslim men in Srebrenica was motivated by specific genocidal intent. The Krstic judgment is specifically relied on by Devers as precedent supporting the claim of genocide filed at the ICC.47

The ICTY has affirmed that if the culpable acts forming the physical elements of the actus reus of genocide are satisfied, and “the evidence supports the inference that the crime was motivated by the intent to destroy, in whole or in part, a protected group, a finding that genocide has occurred may be entered.”48 This particular ratio must also be read against the judgments of the ad hoc tribunals that such an inference must be “the only reasonable” one that may be drawn from the circumstances.

It is demonstrable fact that a pattern of conduct—carpet bombing, airstrikes on civilian centers, destruction of hospitals, killing of medical and humanitarian personnel, attacks on critical infrastructure, and policy of isolation from essential resources—cumulatively satisfy the physical elements of genocide in the first instance. Verified evidence, either from United Nations personnel or direct photography, provides multiple accounts of Palestinian civilians and children targeted by virtue of their ethnic status as Palestinian.49 Taken as a whole, and contextualized in light of its disproportionality vis-à-vis the threat posed by Hamas and the non-discrimination between identified Hamas targets and civilians, the systematic pattern of conduct is actively and directly destroying the Palestinian people by virtue of their status as ethnically Palestinian. The assertion is supported by United Nations special experts, who have indicated that the physical components of Israel’s “complete siege” are indicative of those of genocide.50

The inference of specific genocidal intent from the statements and pattern of conduct attributable to Israel is the most contentious issue of the claim. The aforementioned pattern of violent conduct, the systematic and deliberate nature of the culpable acts, and albeit limited instances of dehumanizing rhetoric and expression of a “no quarter” policy must, considered as a whole, imply specific genocidal intent as “the only reasonable inference.” However, such an inference is complicated by the fact of Hamas’ attack on Israel on October 7 and the alleged use by Hamas of civilian centers and infrastructure as military objects. Whether Israel’s proposed claim of self-defence or pursuit of lawful military objectives in the armed conflict has merit under the rules of international humanitarian law, the reasonable belief that it does may negate a finding of specific genocidal intent. That is, even the unlawful position that Israel is lawfully acting in self-defence or against a lawful military target may not imply genocidal intent, if such held belief is what motivates Israel’s policy.

However, the sustained attacks on Gaza following the October 7 terror attacks against Israel ought to also be read as part of the ongoing history in the region. A disproportionate balance of both soft and hard power, economic and social conditions, and access to military resources is a relevant consideration in assessing the objective reasonableness of Israel’s systematic military conduct. This is particularly the case in light of the objective disproportionality of civilian death and destruction of both protected and critical infrastructure necessary for minimum standards of life. Moreover, the above legal conceptualization is underscored by the social, ethnical, and religious tension behind the crisis and the description of Israel’s policy towards the people of Gaza expressed by the Ministry of Defence.

V. Conclusion

The success of the genocide claim filed by Lawyers for Gaza will turn on whether the ICC can find and hold specific genocidal intent as the only reasonable inference from the pattern of conduct perpetrated by Israel against the Palestinian people. It is important to note that such a determination does not detract from the alleged crimes of war and against humanity that Israel has cause to argue (although jurisdictionally not as a State Party to the ICC). Furthermore, the progression of the claim filed to its determination at pre-trial stage does not indicate the culpability or responsibility of Netanyahu, but rather the prima facie grounds supporting the charge.

It is likely, or at least strongly arguable, that multiple counts of the physical elements of genocide are satisfied. The magnitude, severity, and systematic repetition of civilian killings, destruction of protected objects, and the creation of circumstances in which minimum essential standards of life are materially causing the partial destruction of the Palestinian people (evident in the verified figures on death and displacement). Such acts are committed unlawfully, and strongly presumed to be committed with knowledge of their effects and intent to commit them.

Whether specific genocidal intent may be attributed to Prime Minister Netanyahu will be determined by the Court, no doubt under significant political and social pressure. The Court may seek to set strong precedent against evidence of genocidal motivation in military policy, or may hold the standard of genocide determinations more strictly than the precedent set by the ad hoc tribunals. However, for the purpose of hearing and investigating the claim filed before the Hague by Devers, there is reasonable grounds to infer that Israel’s systematic and manifest pattern of conduct directed at the Palestinian people is intended to cause—at least in part—their destruction, and calculated to bring about that end.

Whether the charge is accepted, let alone a prosecution successfully instigated, remains to be seen; but the crisis in occupied Palestine merits the strong consideration by the Prosecutor that the threshold for genocide has, unfortunately, been met.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Lawyers for Gaza Victims File Case at International Criminal Court, Al Jazeera, Nov. 15, 2023, [hereinafter Lawyers for Gaza Victims], available online. ↩

2. 2.

   Rome Statute, Art. 6. ↩

3. 3.

   Luis Moreno Ocampo, ICC Prosecutor, Fourth Report of the Prosecutor to the UN Security Council Pursuant to UNSCR 1593, ¶ 1 (Dec. 14, 2006), available online, archived. ↩

4. 4.

   Al Bashir Case, ICC, available online (last visited Jan. 7, 2024). ↩

5. 5.

   International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May–11 June 2010 (Jun. 11, 2011) [hereinafter Elements of Crimes], available online, archived. ↩

6. 6.

   Id. ↩

7. 7.

   The Prosecutor v. Édouard Karemera, Matthieu Ngirumpatse, ICTR-98-44-T, Judgement and Sentence, ¶ 1635 (ICTR TC III, Feb. 2, 2012), available online. ↩

8. 8.

   Id. ¶ 1642. ↩

9. 9.

   Prosecutor v. Tharcisse Muvunyi, ICTR-00-55-A-T, Judgement, ¶ 29 (ICTR TC III, Feb. 11, 2010), available online. ↩

10. 10.

    Prosecutor v. Radoslav Brđanin, IT-99-36-T, Judgement, ¶ 970 (ICTY TC III, Sep. 1, 2004), available online. ↩

11. 11.

    Prosecutor v. Vidoje Blagojević and Dragan Jokić, IT-02-60-T, Judgement (ICTY TC I, Jan. 17, 2005), available online. ↩

12. 12.

    Prosecutor v. Sylvestre Gacumbitsi, ICTR-2001-64-T, Judgement, ¶ 252 (ICTR TC III, Jun. 17, 2004), available online. ↩

13. 13.

    Id. ¶ 253. ↩

14. 14.

    Id. ↩

15. 15.

    Id. ¶ 287. ↩

16. 16.

    Prosecutor v. Duško Sikirica, Damir Došen, and Dragan Kolundžija, IT-95-8-T, Judgement on Defence Motions to Acquit, ¶ 549 (ICTY TC III, Sep. 3, 2001), available online. ↩

17. 17.

    Rome Statute, supra note 2, at Art. 6. ↩

18. 18.

    Press Release, OCHA, Hostilities in the Gaza Strip and Israel—Reported Impact Day 66 (Dec. 11, 2023), available online (last visited Jan. 6, 2024). ↩

19. 19.

    Press Release, OCHA, Data on Casualties, available online (last visited Jan. 6, 2024). ↩

20. 20.

    Nidal Al-Mughrabi, Gaza’s Death Toll Tops 10,000; UN Calls it a Children’s Graveyard, Reuters (Nov. 6, 2023), available online. ↩

21. 21.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3 (Jun. 8, 1977) [hereinafter Additional Protocol I], available online, archived. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    Mohammed Hussein & Mohammed Haddad, Know Their Names, Al Jazeera (Dec. 12, 2023), available online. ↩

25. 25.

    Al-Mughrabi, supra note 20. ↩

26. 26.

    Michelle Nichols, UN Chief Says Gaza Becoming a “Graveyard for Children”, Reuters, Nov. 6, 2023, available online. ↩

27. 27.

    Prosecutor v. Brđanin, supra note 10, ¶ 691. ↩

28. 28.

    Prosecutor v. Milomir Stakić, IT-97-24-T, Judgement, ¶ 517 (ICTY TC II, Jul. 31, 2003), available online. ↩

29. 29.

    Id. ↩

30. 30.

    Prosecutor v. Jean-Paul Akayesu, ICTR-97-20-T, Judgement and Sentence, ¶ 52 (ICTR TC I, Dec. 6, 1999), available online. ↩

31. 31.

    Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, ¶ 506 (ICTR TC I, Sep. 2, 1998), available online. ↩

32. 32.

    World Health Organization & Health Cluster, Public Health Situation Analysis: Hostilities in the Occupied Palestinian Territory (Nov. 5, 2023) [hereinafter Public Health Situation Analysis], available online. ↩

33. 33.

    Israeli Defence Minister Orders “Complete Siege” on Gaza, Al Jazeera, Oct. 9, 2023, [hereinafter Complete Siege], video. ↩

34. 34.

    Public Health Situation Analysis, supra note 32. ↩

35. 35.

    Id. ↩

36. 36.

    Prosecutor v. Gacumbitsi, supra note 12, ¶ 287. ↩

37. 37.

    Prosecutor v. Mikaeli Muhimana, ICTR-95-1B-T, Judgement and Sentence, ¶ 496 (ICTR TC III, Apr. 28, 2005), available online. ↩

38. 38.

    Ildéphonse Nizeyimana v. The Prosecutor, ICTR-00-55C-A, Judgement, ¶ 122 (ICTR AC, Sep. 29, 2014), available online. ↩

39. 39.

    Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Radivoje Miletić, Vinko Pandurević, IT-05-88-A, Judgement (ICTY AC, Jan. 20, 2015), available online, archived. ↩

40. 40.

    Id. ¶ 470. ↩

41. 41.

    Complete Siege, supra note 33. ↩

42. 42.

    Press Release, ICC, Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekeyevna Lvova-Belova (Mar. 17, 2023), available online. ↩

43. 43.

    Fédération Internationale des Droits de l’Homme, Resolution on Israel’s Unfolding Crime of Genocide and Other Crimes in Gaza and Against the Palestinian People (Nov. 2023), available online, archived. ↩

44. 44.

    Prosecutor v. Popović et al., supra note 39, ¶ 470. ↩

45. 45.

    Prosecutor v. Callixte Nzabonimana, ICTR-98-44D, Judgement and Sentence, ¶ 92 (ICTR TC III, May 31, 2012), available online. ↩

46. 46.

    Prosecutor v. Radislav Krstić, IT-98-33-A, Judgement, ¶ 34 (ICTY AC, Apr. 19, 2004), available online. ↩

47. 47.

    Lawyers for Gaza Victims, supra note 1. ↩

48. 48.

    Prosecutor v. Krstić, supra note 46, ¶ 34. ↩

49. 49.

    Hussein & Haddad, supra note 24. ↩

50. 50.

    Press Release, UNISPAL, Gaza: UN Experts Decry Bombing of Hospitals and Schools as Crimes Against Humanity, Call for Prevention of Genocide (Oct. 19, 2023), available online. ↩

II. Background

For the ICC to prosecute or otherwise substantially intervene in the situation in Israel and Gaza after Hamas’s terrorist attacks on October 7th, the ICC must have territorial jurisdiction. One of the fundamental issues in this jurisdictional analysis is whether Palestine is a State.5 To make a very complex issue simple, the ICC will have jurisdiction if Palestine is a State, and the ICC will not have jurisdiction if Palestine is not a State.6

In 2021, the Pre-Trial Chamber of the ICC ruled that Palestine was a “’State’ for the purposes of [territorial jurisdiction] of the [Rome] Statute.”7 The Chamber went on to clarify that its ruling was made “without prejudice to any matters of international law arising from the events in the Situation in Palestine that do not fall within the Court’s jurisdiction.”8 The Chamber further limited its ruling to the “Prosecutor’s investigation in accordance with the Statute” and asserted that the Chamber would “examine further questions of jurisdiction” when they arise in later proceedings.9 Together, the limitations the Chamber placed on its ruling leave many issues open. Chief among these is whether Palestine is actually a State under international law or was merely being treated as a State for purposes of the investigation stage of the 2021 Situation in Palestine. In other words, the question of Palestinian Statehood for purposes of prosecuting perpetrators after the events of October 7, 2023, has not been resolved.

The four elements of the Montevideo Convention “form the minimal requirements that [an] entity must meet to be considered a State.”10 Notably, the Chamber’s decision did not consider the Montevideo Convention factors at all and made only one reference to the Montevideo Convention in the middle of footnote.11 This represents a significant departure of the ICC from other international criminal courts, like the ICTY. In the Milošević case, the Trial Chamber of the ICTY called the Montevideo Convention factors the “best known definition of a state” and stated that:

[T]he formation of states is a matter that is regulated by law […][and] [t]hat law, in the Trial Chamber’s view, is reflected in the four criteria set out in the Montevideo Convention.12

III. Argument

As such, applying the Montevideo Convention to Palestine seems a good place to start establishing the ICC’s territorial jurisdiction over Palestine in the current conflict. It will become clear that the Oslo Accords prevent the PA from satisfying the Montevideo Convention. This is because the Oslo Accords have tied the PA’s hands in regard to three of the Montevideo Convention’s four factors. Hamas, by contrast, is not bound by the Oslo Accords. Palestine therefore has a stronger case for Statehood under a Hamas government than it does under the PA.

A. First Element: Permanent Population

The first and most straightforward element of the Montevideo Convention requires that a State needs to have a “permanent population.”13 This element requires that the population of a State is stable and not transitory. In other words, it only requires that the population not be temporary. Notably, there does not seem to be a minimum number of permanent residents needed to satisfy this element.14 Because there are permanent Palestinian populations in both Gaza and the West Bank, Palestine should be able to satisfy this element regardless of the Oslo Accords or which entity governs.15

B. Second Element: Defined Territory

Second, the Montevideo Convention requires that a state have a “defined territory.” This element poses a number of problems for Palestinian Statehood. In order to claim dominion over a territory, a State must be able to “rightfully claim the territory as a domain of exclusive authority.”16 Neither the PA nor Hamas can claim exclusive authority over the territory of Gaza because of the influence Israel has over the region.

Another problem lies in the West Bank’s three sub-divisions. It is clear that Area A would be a territory of a Palestinian state under the PA because Area A is controlled completely by the PA and is populated almost exclusively by Palestinians.17 In Area B, meanwhile, the PA exercises administrative control but shares security control with Israel which makes it less clear that Area B would be part of a Palestinian state.18 Finally, Area C is completely controlled by Israel, administratively and in terms of security, even though around 300,000 Palestinians live there. Even if it is assumed that the PA has “exclusive authority” over Gaza and Area A of the West Bank, therefore, it is not obvious that Palestine’s territory as a whole is “defined.”19

Boundary disputes are not always dispositive, however. For example, Israel was recognized as a State and was admitted to the United Nations in 1949 when its own borders were not yet completely delimited.20 Andorra was also recognized by many States “despite its lack of settled frontiers.”21 Therefore, under a more liberal reading of the Montevideo Convention, Palestine’s territory might be sufficiently defined to pass muster.

The above notwithstanding, the Oslo Accords directly negate the PA’s ability to satisfy this element. Article 5(3) of the Declaration of Principles on Interim Self-Government Arrangements, also known as the Oslo Accords, clarifies that the borders of the would-be Palestinian State were to be determined in the future.22 Because the Palestine Liberation Organization (PLO) agreed that Palestine’s borders were to be determined by agreement at a later date, and because there has not yet been such an agreement, it must also be the case that Palestine’s borders are not yet defined. Necessarily, then, Palestine cannot satisfy the second element of the Montevideo Convention while the PA, which is bound by the Oslo Accords, is still the controlling government.

Hamas, by contrast, would not be bound by the Oslo Accords. Someone treating Hamas as the controlling government could, therefore, rely on the analysis in the previous paragraphs. Namely, they could argue that Palestine’s territory is defined enough to satisfy a liberal application of the second Montevideo Convention factor if Hamas was the controlling government instead of the PA.23 Therefore, if either, a Palestine under Hamas has a better chance of satisfying the second Montevideo Convention factor than does a Palestine under the PA.

C. Third Element: Government

The third Montevideo Convention factor requires that a State have a “government.”24 Under the traditional theory, a State can satisfy this factor when it has an “effective government.”25 Governmental effectiveness is defined as governance that

1. has “power to assert [a] monopoly over the exercise of legitimate physical violence within a territory” and

2. one “strong enough to assert themselves throughout the territories of the state without assistance of foreign militaries.”26

It appears that this definition is intertwined with, and dependent on, the “defined territory” analysis. As a result, a number of the issues for the PA raised above will also apply here. This factor will be very difficult for either group to establish due to Israel’s influence over Gaza and the West Bank. But, if either of them, Hamas is more likely to satisfy it.

First, it is not at all clear that the PA has a monopoly over legitimate violence in Gaza. This is because both Hamas and the Israeli conduct violence within its borders, and the PA cannot stop either. What is a monopoly on violence if it is not holding the biggest stick within a State’s own borders? Moreover, the PA appears to need Israel’s help to combat Hamas’s savagery, which undermines the second part of the effective government definition.27

Conversely, Hamas claims it is the rightful government of Palestine in its founding Covenant and argues that it intends to liberate Palestine through jihad.28 Hamas has also been the de facto government of Gaza for many years.29 The PA, therefore, cannot claim to be the “effective government” of Gaza that is required to satisfy the traditional theory of government under the Montevideo Convention.

Like boundary disputes in the defined territory analysis, however, internal strife does not preclude the finding of an effective government under this element. The Democratic Republic of Congo, for example, was recognized as a State independent of Belgium during a period of vast internal strife and the Congo Crisis.30 The PA could rely on this to argue that Hamas’s control over Gaza is a part of that internal strife and that the PA is the effective government of Gaza. And was Hamas the only one who infringed on the PA’s control of Gaza, the PA would have a stronger case for effective governance there. The additional need for Israeli assistance to combat Hamas, however, is likely too much for the PA to overcome when viewed in the aggregate.

Next, in the West Bank, the PA only has a claim of effective governance over Area A. In Area A, the PA has total control of security as well as administration. Therefore, the PA is likely an effective government over Area A. However, Israel has security control and, as a result, a monopoly on legitimate violence in Areas B and C. This means that the PA, between Gaza and the West Bank, can only be an effective government under the Montevideo Convention over Area A.

Another issue is that the PA is only an interim government that possesses limited powers under the Oslo Accords. The formal name of the Oslo Accords, the Declaration of Principles on Interim Self-Government Arrangements, makes clear that the PA is only meant to be a temporary government. Additionally, the PA agreed in the Oslo Accords that all powers not granted to it were retained by Israel.31 More specifically, the Oslo Accords set out that the PA’s “jurisdiction will apply with regard to the agreed powers, responsibilities, spheres and authorities transferred to it.”32 This must mean that all governmental functions not specifically transferred to the PA were retained by Israel, giving Israel “[o]verriding[,] [r]esidual” control over the PA.33 Therefore, recognizing the PA as the permanent and effective government of Palestine would undermine the understanding of the Oslo Accords.34

By contrast, if Hamas were treated as the government, it would face far fewer problems establishing that it is the effective government of Palestine. First, the PA’s case is subverted by the fact that they need Israel’s help to fight Hamas. Hamas by definition is not receiving Israel’s help and has been the de facto government in Gaza for many years.35 Hamas’s terrorist forces are also stronger than the PA’s forces. This means that Hamas, if either of the two, is closer to having a monopoly on violence in Gaza. Additionally, Hamas is not limited by the fact that the PA is only supposed to be a temporary government.

Hamas does have one big problem under this element, however. Namely that Hamas has virtually no control over the West Bank, even though it does exist there.36 This means that the PA has a stronger argument for effective governance in the West Bank. As mentioned above, however, internal strife is not preclusive of finding an effective government. There is no reason to think this cannot cut both ways. Hamas could equally rely on this to argue that the PA’s control over the West Bank is a result of internal strife and that Hamas should be deemed the effective government of the West Bank.

On balance, though, Hamas has a more defensible position that it is the effective government of Palestine as a whole under the Montevideo Convention. This is because Hamas controls Gaza and is at least present in the West Bank. Meanwhile, the PA only controls Area A, has no power in Gaza, and only possesses some governmental powers in the remaining West Bank subject to the overriding, residual authority of Israel.37

D. Fourth Factor: Capacity to Enter into Relations with Other States

The fourth and final Montevideo Convention factor is that a State has to have the “capacity to enter into relations with the other states.”38 Critically, this factor cannot be satisfied by showing the capacity to enter into any individual agreement with foreign States. If this factor could be satisfied by such a showing, it would provide very little descriptive value. Instead, the fourth Montevideo Convention factor must mean that the State has a general, independent authority to enter into foreign relations.39

Commentators have noted that the capacity to enter into relations with other States “is rather the consequence of Statehood than its condition and is, for this reason, quite paradoxical.”40 The present analysis does not require a deeper investigation of this, however, because the PA could not satisfy this condition regardless of if the chicken or egg came first. This is because the Oslo Accords specifically state that the PA “will not have powers and responsibilities in the sphere of foreign relations” apart from a few specifically enumerated exceptions.41 Therefore, the PA explicitly renounced its general, independent authority to enter into relations with other States.42

Importantly, the Office of the Prosecutor disagrees with this categorization. In its 2020 Request on this matter, the Office of the Prosecutor noted that the PA has “acceded[ed] to numerous multilateral treaties, many of them under the auspices of the United Nations, and others with national governments as depositaries” and that “the UN OLA expressly recognized Palestine’s capacity [under the PA] to accede to treaties bearing the “all States” or “any State” formula.”43 From this, the OTP concluded that “[t]he Oslo Accords thus appear not to have affected Palestine’s ability to act internationally.”44 This conclusion, at core, is drawing a distinction between the binding language of the Oslo Accords, which flatly prohibits these accessions, and the actual practices of the PA.45 However, it does not necessarily follow that because the PA has acceded to these treaties, it must also have a general, independent authority to do so. Signing a treaty is not the same as having the authority to do so. In fact, the Oslo Accords, which no one denies are still binding, clearly state that the PA does not have this authority.

Because Hamas was not a party to the Oslo Accords, Hamas is not limited by any agreement that bars its general authority to enter into foreign relations. Critically, the Montevideo Convention does not treat theocratic autocracies differently than other forms of government, and the desire of other States to engage in relations with a government is immaterial here. As a result, Hamas’s authority to enter into foreign relations is theoretically unlimited. Therefore, because the PA’s capacity to enter into foreign relationships is more limited than Hamas’s, Hamas is more likely to satisfy the fourth element of the Montevideo Convention.

E. The Four Montevideo Convention Factors Taken Together

In the aggregate, it is clear that the Oslo Accords bind the PA’s hands in ways that they do not bind Hamas’s. Palestine is therefore more likely to be a State under the Montevideo Convention if Hamas is considered the government instead of the PA. First, Palestine would satisfy the first element of the Montevideo Convention regardless of which group governs because Palestine has a permanent population. The second element of Statehood, a “defined territory,” is impossible for the PA to satisfy because it agreed in the Oslo Accords that the borders of Palestine were not yet defined. Hamas is not bound by the Oslo Accords which means that it can argue that Palestine’s borders are sufficiently defined, even though satisfying this element would be difficult for either group. As for “effective government,” the third Montevideo Convention factor, the PA also has the weaker argument. If either Hamas or the PA is an effective government with a monopoly on violence, Hamas is. Finally, Palestine has a better chance at satisfying the fourth Montevideo Convention factor of Statehood under Hamas because the PA has explicitly disclaimed its general authority to enter into foreign relations, while Hamas has not. Taken together, Palestine has a better case for Statehood under Hamas than under the PA.

F. Barriers for Hamas Under the Montevideo Convention

It is critical to note that even if Hamas were considered the government of Palestine, the issue would not be completely resolved even under the Montevideo Convention. The first problem has to do with the West Bank under the third Montevideo Convention factor, effective government. Even though it was established that the PA is only an effective government over Area A, Hamas has almost no power in the West Bank. This poses a problem for Hamas because of the previously mentioned connection between the second and third Montevideo Convention factors. It would be very difficult for Hamas to argue that it is the effective government of a defined Palestinian territory that includes the West Bank.46 One potential argument for Hamas to make, though, is that the PA is merely occupying Area A. Ironically, the PA made an argument to the Pre-Trial Chamber in 2021 that is very applicable to this situation. The PA argued that “the occupation of Palestine has not affected its territorial integrity” and that “the inability of a State to exercise the full extent of its sovereignty over parts of its territory […] does not result in a loss of sovereignty.”47 One could imagine Hamas using the very same argument against the PA.

The final barriers relate to the reality of the situation. First, it seems very unlikely that Hamas would agree to anything that would expose itself to prosecution by the ICC for its atrocities on October 7th. Therefore, in yet another counterintuitive twist, Hamas likely does not want Palestine to be recognized as a State under the jurisdiction of the ICC despite that Hamas’s Covenant is littered with calls for Palestinian Statehood.48 Next, it seems equally improbable that the international community, or Palestinians for that matter, would recognize a terrorist organization as the rightful government of Palestine.

IV. Conclusion

For the foregoing reasons, Palestine has a better argument for Statehood under the Montevideo Convention if Hamas was considered the government of Palestine instead of the PA. This is because the PA is limited by the Oslo Accords, which directly negate three of the four Montevideo Convention factors. Because Hamas is not bound by the Oslo Accords, there is a stronger argument for Palestinian Statehood for a Palestine governed by Hamas.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See generally Situation in the State of Palestine, ICC-01/178, Decision on the “Prosecution request pursuant to article 19(3) on the Court’s territorial jurisdiction in Palestine” (ICC PTC I, Feb. 5, 2021) [hereinafter Pre-Trial Decision], available online

   (answering the question of Palestinian Statehood to determine whether the ICC has territorial jurisdiction over Palestine for the 2021 Situation in the State of Palestine). ↩

2. 2.

   Montevideo Convention of the Rights and Duties of States, Art. 1 (Dec. 26, 1933, entered into force Dec. 26, 1934) [hereinafter Montevideo Convention], available online. ↩

3. 3.

   Id. ↩

4. 4.

   It is worth noting here that Hamas would almost certainly refuse this categorization because it would open Hamas leaders up to liability under the Rome Statute for the atrocities they have committed. ↩

5. 5.

   See generally Pre-Trial Decision, supra note 1. ↩

6. 6.

   See id. at 13–14. ↩

7. 7.

   Id. at 50. ↩

8. 8.

   Id. ↩

9. 9.

   Id. at 58, 59. ↩

10. 10.

    Sascha Dov Bachmann & Marinas Prazauskas, The Status of Unrecognized Quasi-States and Their Responsibilities Under the Montevideo Convention, 52 Int’l Law. 393, 410 (Dec. 19, 2019), available online. ↩

11. 11.

    Pre-Trial Decision, supra note 1, at 40 n. 266. ↩

12. 12.

    Prosecutor v. Slobodan Milošević, IT-02-54-T, Decision on Motion for Judgement of Acquittal, ¶¶ 85, 87 (ICTY TC, Jun. 16, 2004), available online. ↩

13. 13.

    Montevideo Convention, supra note 2, at Art. 1. ↩

14. 14.

    Holy See (Vatican City), CIA World Factbook (updated Nov. 14, 2023), available online.

    (Vatican City, for example, is a State and only has a permanent population of about 1000 people). ↩

15. 15.

    See Office of International Religious Freedom, U.S. Dept. of State, 2022 Report on International Religious Freedom: Israel, West Bank and Gaza (2022), available online.

    (According to the U.S. State Department, there are around two million people in Gaza, almost all of whom are Palestinian, and about three million people across the three areas of the West Bank). ↩

16. 16.

    Bachmann & Prazauskas, supra note 10, at 405 quoting Malcolm D. Evans Ed., International Law 217 (2014), paywall. ↩

17. 17.

    What are Area A, Area B, and Area C in the West Bank?, Anera, available online (last visited Nov. 26, 2023). ↩

18. 18.

    Id. ↩

19. 19.

    Disputed Israeli settlements in the West Bank, as well as the pressure that Israel exerts in Gaza and all over the West Bank, muddle this issue further, making it even less clear that Palestine has a “defined territory.” Therefore, under a strict reading of the Montevideo Convention, it is not clear that Palestine could become a State regardless of who the government is. ↩

20. 20.

    G.A. Res. 273 (III), UN Doc. A/RES/273 (III), Admission of Israel to Membership in the United Nations (May 11, 1949), download. ↩

21. 21.

    Bachmann & Prazauskas, supra note 10, at 405. ↩

22. 22.

    Declaration of Principles on Interim Self-Government Arrangements, UN Doc. A/26560 Annex, Art. V (Sep. 13, 1993) [hereinafter Oslo I], available online. ↩

23. 23.

    It should go without saying that there are innumerable issues regarding the boundaries of Palestine that are beyond the scope of this comment. Instead of providing a comprehensive detailing of those issues, almost all of which are deeply contested, this comment focuses on two or three “surface level” issues necessary to address the issue presented by the Montevideo Convention factors. ↩

24. 24.

    Montevideo Convention, supra note 2, at Art. 1. ↩

25. 25.

    Bachmann & Prazauskas, supra note 10, at 405. ↩

26. 26.

    Id. (internal quotations omitted). ↩

27. 27.

    Israel’s operations in Gaza and the lack of substantive response by the PA after the terrorist attacks by Hamas on October 7th provide further evidence of this. ↩

28. 28.

    The Covenant of the Islamic Resistance Movement (Aug. 18, 1998) [hereinafter Hamas’s Covenant], available online (trans.). ↩

29. 29.

    Kali Robinson, What Is Hamas?, Council on Foreign Rel. (Oct. 31, 2023), available online. ↩

30. 30.

    The Congo Crisis, Encyclo. Britannica, available online (last visited Nov. 26, 2023). ↩

31. 31.

    Declaration of Principles on Interim Self-Government Arrangements, at Agreed Minutes, Art. 4 (Sep. 13, 1993), available online; Oslo I, supra note 22, at Art. 9. ↩

32. 32.

    Oslo I, supra note 22, at Art. 9. ↩

33. 33.

    Tal Becker, International Recognition of a Unilaterally Declared Palestinian State: Legal and Policy Dilemmas, JCPA, available online (last visited Nov. 29, 2023). ↩

34. 34.

    Oslo I, supra note 22, at Art. 1.

    (In fact, the PA’s original name under the Oslo Accords was the “Palestinian Interim Self-Government Authority”). ↩

35. 35.

    See Joby Warrick, Ellen Nakashima, Shane Harris & Souad Mekhennet, Hamas Received Weapons and Training from Iran, Officials Say, Wash. Post, Oct. 9, 2023, available online.

    (It should be noted that Hamas is likely being funded and supported by Iran);

    Robinson, supra note 29.

    (However, this is a much different situation than Israel coming in to fight Hamas on the ground, presumably on behalf of the PA). ↩

36. 36.

    Robinson, supra note 29. ↩

37. 37.

    Bachmann & Prazauskas, supra note 10, at 406.

    (Notably, the fact that Hamas is an effective government through cruelty to and oppression of citizens is not preclusive. According to Bachmann and Prazauskas, “Authoritarian and dictator regimes […] would be recognized under traditional [Montevideo Convention] theory” and “requiring compliance with democratic principles as a criterion of Statehood would not be appropriate.”). ↩

38. 38.

    Montevideo Convention, supra note 2, at Art. 1. ↩

39. 39.

    Bachmann & Prazauskas, supra note 10, at 409–10. ↩

40. 40.

    Id. at 408. ↩

41. 41.

    Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip, UN Doc. S/1997.357 Annex, Art. IX (Sep. 28, 1995), available online. ↩

42. 42.

    One may argue that by entering into the Oslo Accords in the first place, the PA demonstrated its capacity to enter into relations with foreign States. This is possible. It is also possible, however, that Israel was not considered a foreign State at all and that the PA was considered an extension of Israel. This reading is supported by the fact that Israel still possesses a number of powers over Gaza and the West Bank and that the PA and Israel have made agreements since the Oslo Accords despite the Accords’ binding nature. This reading would be disastrous for Palestinian Statehood under the PA because it would further undermine its sovereignty and independence. ↩

43. 43.

    Situation in the State of Palestine, ICC-01/18, Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ¶ 184 (ICC PTC I, Jan. 22, 2020), available online. ↩

44. 44.

    Id. ↩

45. 45.

    See also Michael Kearney & Stijn Denayer, Al-Haq Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor the International Criminal Court under Article 12(3) of the Rome Statute, 13 (Dec. 14, 2009), available online.

    (“The reality is indeed that the capacity of and ability of the PLO and PA, to engage in foreign relations has consistently been recognized and interpreted broadly in practice.”). ↩

46. 46.

    Another potential “out”—which would certainly draw ire from most supporters of Palestinian Statehood—could be to limit the borders of Palestine to just Gaza. This would solve the problem of Hamas’s absence in the West Bank while preserving the ICC’s territorial jurisdiction over the area where these conflicts are occurring. ↩

47. 47.

    Pre-Trial Decision, supra note 1, at 18. ↩

48. 48.

    See generally Hamas’s Covenant, supra note 28. ↩