The Israel and Hamas Question — Comments

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Comment on the Israel and Hamas Question: “With regard to the Israel/Hamas conflict that erupted on October 7, 2023, to what extent can the International Criminal Court deter crimes in the region, facilitate a reduction of violence, provide accountability for criminality in the conflict, or advance post-conflict reconciliation between Israelis and the Palestinian people?”

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msperling
52270
February 20, 2024
5:43 pm

Palestine at the International Criminal Court: Overzealous Jurisdiction Preventing Peacemaking

Introduction

On October 7, 2023, fighters affiliated with the Hamas government of the Gaza Strip attacked Israel, raping, torturing, and kidnapping Israeli men, women, and children. Around 1200 people, a vast majority of whom were civilians, were killed, and 240 were taken hostage. More than 130 of the hostages are still in captivity or have since been murdered.1 The campaign Israel launched in response has destroyed vast parts of Gaza, leading international community to accuse the Israeli government of “collective punishment” of the Palestinian people.2 International opinion on the conflict has been mixed, with calls for a humanitarian ceasefire becoming increasingly ubiquitous, as the conflict has highlighted political divides in the international community. While the United Nations has unapologetically taken the Palestinian side, largely downplaying Hamas’ responsibility, the United States has remained supportive of Israel.3 With the international community divided, International Criminal Court Prosecutor Karim Khan has tried to paint the ICC as a neutral arbiter of human rights and enforcer of international law. He visited the Middle East in November, calling on both Israel and the Palestinians to respect international law and vowing to investigate claims of genocide, crimes against humanity, and war crimes brought and allegedly perpetrated by either side.4 However, an investigation into actions by both sides will be virtually impossible, as Israel, which is not a State Party to the ICC, rejects the Court’s authority due to the ICC’s previous approach to the Israel–Palestinian conflict. Because of this history, Israel will be unlikely to cooperate with an investigation into Palestinian actions in Israel. Thus, if the Court investigates at all, it is likely charges will only emerge relating to Israel’s actions in the wake of October 7 rather than those of Hamas.

Such an investigation would not be the first time the ICC has attempted to play a role in the Israeli–Palestinian conflict. In 2009, the Palestinian Authority (PA) tried to accede to the Rome Statute so that the Court could investigate Israeli actions in Gaza.5 In 2012, then-prosecutor Luis Moreno Ocampo declined to investigate, holding that Palestine had not yet achieved statehood, a necessary condition for acceding to the treaty and thus for referring a matter for investigation.6 Nonetheless, in 2015, the ICC allowed Palestine to become a State Party to the Statute and refer an investigation into Israel’s actions in “Palestine” to the Court.7 In 2021, after a jurisdictional hearing in the Pre-Trial Chamber decided 2–1 in favor of jurisdiction, prosecutor Fatou Bensouda asserted her intent to investigate “actions on Palestinian territory,” which the Chamber held to comprise Gaza, the West Bank, and East Jerusalem.8 The Court asserted that it has jurisdiction over Palestinian territory but has expressed its intention to prosecute Palestinian leaders only for crimes against their own people rather for any crimes perpetrated in Israel.9 While the investigation remains in progress, it is unlikely that the Court will investigate Hamas’ actions in the current conflict for the same reasons that it has not investigated previous Palestinian actions in Israel. Thus, the Court will probably not be able to position itself as the neutral arbiter of peace and human rights that Prosecutor Khan would like it to be.

An ability to facilitate reconciliation, reduce violence, and help construct a new narrative around the conflict hinges on strong social legitimacy, and the ICC has reduced its legitimacy among both States Parties and non-States Parties, like the United States and Israel, by allowing a non-State entity to accede to the Statute in direct violation of its terms. The ICC’s assertion of jurisdiction over Palestine was misguided because Palestine is not yet a “State” and thus cannot accede to the Rome Statute. Even if the Court now attempts to use this jurisdiction to hold Hamas leaders accountable for the attempted genocide and crimes against humanity perpetrated on October 7, it is unlikely to serve as an effective peacemaking body in the conflict going forward. By making a seemingly political decision to undermine the plain language of the treaty and accepted state practice, the ICC has weakened its image as a neutral, non-political arbiter. Additionally, because Palestine does not have the ability to prosecute Israelis for actions occurring in Palestinian-controlled territory, the Palestinian government cannot impart that authority to the ICC. Because a further unequal investigation will likely doom any chance the ICC had to gain legitimacy as a non-political actor in the international community, and because there is no basis on which to investigate Palestinian actions in Israeli territory, Prosecutor Khan should not attempt to launch an investigation into October 7th and its aftermath.

This comment begins by examining the language of the Rome Statute and arguing that only “States” can accede to the treaty, and then contends that establishing a single definition of “statehood,” rather than a separate definition of the term just for the purposes of the Statute, is essential for predictability, legitimacy, and customary reasons. Further, the language of the Rome Statute implies that states can only impute authority which they possess to the Court. The comment analyzes the language of the 1993 and 1995 Oslo Accords to show that Palestine gave up its jurisdiction over Israelis in Palestine and thus cannot confer that authority to the Court. Next, the comment examines the two primary definitions of statehood and argues that the classic declaratory theory, or a hybrid of the two primary theories, is preferable. It then argues that under such a theory, and arguably even under the constitutive theory advanced by some scholars, Palestine has not yet attained statehood. Because the only significant change in Palestine’s status between the 2012 assertion of no jurisdiction and the 2021 launch of an investigation was the elevation of Palestine from “non-member observer entity” to “non-member observer State” at the U.N., the comment argues that Palestine has not attained sufficient “State” status to be able to legitimately become a State Party to the ICC. Finally, the comment examines the theory of social legitimacy, arguing that a lack of such legitimacy will prevent the Court from effectively serving as a peacemaking body in the Israeli–Palestinian conflict going forward.

I. Procedure and Jurisdiction of “States” in the Rome Statute and the Oslo Accords

Modern international law is understood to be based on the principle that States cannot be bound by any particular organ of international law without their consent to be so bound.10 Treaties, such as the Rome Statute that created the International Criminal Court, are one of the most important expressions of such consent. The rules surrounding treaty-making and the applicability of treaties were laid out in the 1967 Vienna Convention on the Law of Treaties (VCLT), which explains that treaties are written agreements “between States.”11 While the exact role state consent plays in international law is disputed by scholars, it is generally accepted that there is some flexibility within this definition: treaties can be agreements between multiple “States” or between “States” and international organizations. Such a definition is advanced by virtually all states as well as by most scholars and academics.

Many organizations which allow for non-“State” entities to join, such as UNESCO and the World Trade Organization, define the procedure for those entities to become members within the plain language of the treaty itself.12 Many others use a standard formulation of treaty-making ability. Article 81 of the Vienna Convention lays out what is known as the “Vienna Formula” for ability to accede to a treaty. The Formula states that United Nation members, “States Members” of a U.N. specialized agency, or “States” invited by the G.A. have the ability to make binding treaties.13 Many treaties explicitly use the Vienna Formula to determine which entities can become signatories. The Rome Statute does not.14 Article 125 of the Rome Statute says that it is open to accession “by all States” and that instruments of accession will be deposited with the Secretary-General of the U.N.15 Thus, in order to determine whether an entity can accede to the Rome Statute, it is necessary to determine first what “all States” means and then to evaluate whether a particular entity fulfills that definition.

A. Palestine cannot accede to the Rome Statute if it is not a “State” under international law because it cannot be a “State” for procedural purposes without a ruling on its “State” status for general international law purposes.

Treaties generally define their scope, enforcement mechanisms, and conditions for consent to be bound within their terms so that all parties concerned understand what they are agreeing to. When they do not, general state practice is typically the guide for which disputed entities are able to join. Many treaties explicitly use the Vienna Formula, and some, such as the Marrakesh Agreement that created the World Trade Organization, explicitly use a more expansive definition which allows non-State entities to become signatories.16 Article 125 of the Rome Statute, however, allows “all States” to accede to the treaty.17 Because the Vienna Formula is not mandated in Article 125, state practice provides the guide to determining to what entities the “all States” terminology applies. However, what that state practice is must be evaluated. An unequivocal indication from the G.A. can also establish that an entity is considered a “State” for the purposes of joining “all States” treaties.18

Prosecutor Bensouda’s Request to the Pre-Trial Chamber acknowledges that Palestine is not a “State” for the purposes of international law, but nonetheless advocates for a separate, procedural definition of “State” for the purposes of the Rome Statute.19 She advances two reasons for this position. The first argument, that Palestine acceding to the Rome Statute creates a condition of statehood sufficient to allow the Court to assert that Palestine can accede to the Rome Statute, is a seeming tautology discussed in Section II. Her second reason is equally troubling. Bensouda contends that the Court should address questions of international law “when necessary to address its functions and mandate,” but does not seem to believe that such necessity with regard to international law has arisen in the case of Palestine.20 Her sole reason for advancing this procedural argument is that the U.N. has recognized the Palestinian right to self-determination and an independent state and that it has connected those rights to the Occupied Palestinian Territory (oPt).21 Article 21 of the Rome Statute explains that the law to be applied by the Court is defined within the Statute; matters of law not provided for within the Statute’s terms should be derived from national laws which are consistent with the Statute and international law or from internationally recognized norms and customary standards.22 University of Leicester Professor Malcolm N. Shaw explains that because “State” is not defined within the Statute, the definition that must be used is the general definition as understood by international law.23 While the Prosecutor’s argument may be appealing, accepting such a claim would require Palestine to be treated like all other, non-disputed States for the purposes of the Statute. In her Response to Amici Curiae, Bensouda acknowledges that statehood does not derive from treaty accession nor from any G.A. Resolution.24 Shaw contends that, while States Parties may identify entities that can accede to the Statute in theory, they cannot simply by virtue of doing so create a separate procedural “State” status that overcomes jurisdiction or territorial control issues.25

The Prosecutor’s contention that Palestine is a state “for the purposes of the Statute” is a controversial and ultimately meaningless claim. Her request that the Pre-Trial Chamber decide that the Rome Statute has its own exceptional definition of “State” misunderstands the difference between “self-determination” and “statehood.” While this distinction is discussed more fully in Section II, it is important to note here to show that “self-determination” and “statehood” are not interchangeable when it comes to defining statehood for the purposes of accession to treaty instruments. While the Prosecutor states early in her response to the Observations of Amici Curiae that the G.A. cannot turn self-determination into statehood, she directly contradicts that statement in Paragraph 47.26 Additionally, the Prosecutor’s categorical statement in the Request to the Pre-Trial Chamber argues that G.A. Resolution 67/19, which elevated Palestine to “non-member observer State” status, allowed Palestine sufficient “procedural statehood” for it to be allowed to accede to the Rome Statute is both conclusory and contradictory to her own professed position.27 Her reasoning blurs the line between the argument of statehood for the purpose of the Statute and the tautological statehood by virtue of accession, which is further discussed in Section II. The distinction between “statehood” and self-determination in the context of jurisdiction is discussed in Section II(B).

Jure Vidmar clarifies Bensouda’s idea, which he accepts, and explains why it does not apply in this case.28 Vidmar contends that “all States” language in a treaty which does not explicitly mandate the use of the Vienna Formula, such as the Rome Statute, nonetheless implies that the Formula should apply.29 He explains that in the U.N. Summary of Practice, the Vienna Formula informs the Secretary-General’s approach to “statehood” for treaty-making purposes. Vidmar argues that, in practice, membership in any of the specialized agencies of the U.N. allows an entity to use the Vienna Formula for treaties open to “States” or “all States.”30 However, he draws a distinction between what this comment calls “procedural” statehood—to Vidmar, a version of “statehood” that allows an entity to accede to a particular treaty—and what this comment calls “legal” statehood, which creates all the rights and obligations that come with being a state in the international community generally. He does not, however, address what happens when a disputed entity is able to join an organization like UNESCO as a “State” when it has not yet acquired such a status.

UNESCO allows for “States” that are not members of the U.N. to join the organization as Members and for “territories” to join as Associate Members.31 When Palestine attained membership in UNESCO in 2011, it joined as a full State rather than an Associate Member.32 However, its accession to UNESCO is a classic example of “procedural statehood” which did not require resolution of the jurisdictional issues present in allowing Palestine to accede to the ICC. When Palestine applied for admission to the ICC, seven states, two of which had voted in favor of Palestinian membership of UNESCO, filed amicus briefs arguing that Palestine was not yet a state for the purposes of the Court’s jurisdiction.33 While these states may have believed that Palestine met the specific procedural requirements to join UNESCO, it does not follow that they also believed it possessed sufficient “statehood” to accede to an “all States” treaty. While Vidmar contends that joining UNESCO puts Palestine into the Vienna Formula for treaty purposes, there is a weakness in his argument—namely, that it assumes either that all U.N. specialized agencies use the same formula for accession or that accession to the easiest of these agencies to join will automatically create treaty-making authority. If either of these is so, Vidmar’s fundamental argument—that no element of recognitive statehood is necessarily satisfied by “procedural statehood”—merges with advocacy for a constitutive theory of statehood, as discussed in Section II.

Shaw rejects both Bensouda and Vidmar’s entire premise of “procedural statehood,” arguing that the contention that “statehood” can be defined outside the accepted international definition of “State” when a treaty has no specific definition of the term, “contorts” the purpose of defining statehood.34 He explains that because “State” is not defined within the Statute, the definition that must be used is the general definition as understood by international law.35 This definition is not procedural but legal, requiring the determination of issues such as territorial jurisdiction. Article 31(1) of the VCLT explains that treaties are to be interpreted in line with the ordinary meaning of their terms, in light of the context, object and purpose of the treaty instrument.36 Interpretation, Shaw argues, must be subject to the words used by the treaty, rather than some new interpretation created solely for this purpose.37 He cites several examples used by commentators who argue that the reinterpretation of “State” is acceptable in the context of the Rome Statute, arguing that their examples are not apposite because those treaties contained specific alternative definitions of “State” within their plain language. Shaw contends that, while the political decision to agree that a disputed entity is competent to accede to a treaty may be made by the States Parties, bestowing attributes of statehood—territorial sovereignty and jurisdiction—which it does not possess in reality upon that entity is problematic.38 This is so because such a definition would require what Shaw calls a “jump” from the capacity to accede to a treaty, which is a political question, to self-determination, territorial rights, and the like, which are fundamentally legal issues.39 His claim that the Prosecutor’s definition would ultimately forestall discussion of international disputes on what constitutes the territory or jurisdictional rights of a disputed entity once it has been allowed to accede to a treaty is persuasive. Vidmar acknowledges these issues in the case of Palestine, ultimately concluding that the unique legal questions surrounding the issues of territorial and jurisdictional rights, discussed further in Section II(B), may be fatal to his own reasoning in Palestine’s case.40

When then-Prosecutor Luis Moreno Ocampo declined to extend the Court’s jurisdiction to Palestine in 2012, he ruled that the ICC could not assert jurisdiction over Palestine because the G.A. had not yet made an indication that it considered Palestine to be a state.41 While Ocampo came to the correct conclusion, his reasoning was flawed. In such a situation, the Prosecutor would not need “an indication,” as he worded it in his statement, but an “unequivocal” indication that the G.A. believes Palestine to have achieved statehood.42 This is clearly not the case. In his dissenting opinion at the Pre-Trial Chamber, Judge Péter Kovács highlights the issue with an expansive view of G.A. Resolution 67/19. He, too, highlights a number of “pre-sovereign” entities admitted to the Rome Statute.43 In addition, he introduces a compelling point: nearly half of the votes in favor of elevating Palestine to “non-member observer State” status came from non-States Parties to the Rome Statute.44 A number of states that officially recognize Palestine abstained from voting.45 Perhaps many states wanted to reflect their support for eventual negotiations. It is not clear that there was an unequivocal indication of support for current Palestinian statehood; it is troubling that Prosecutor Bensouda reads such definiteness into G.A. Resolution 67/19.

In addition to the fact that several of the states which voted for Palestinian elevation to “non-member observer State” status, achieving such a status is not necessarily an indication of statehood. Vidmar argues that “non-member observer State” is itself a category outside the purview of the U.N. Charter and needs to be read as a whole rather than with a heavy emphasis on the word “State.”46 He explains that entities have joined the U.N. as non-member observer States in the past when there was no indication those entities had attained statehood. Austria after World War II, Bangladesh, and three different Vietnams were granted “non-member observer State” status before full membership, although the international community acknowledged the “State” status of those entities had not yet been fully resolved.47 On the other hand, Switzerland maintained its non-member observer State status until 2002 in the interest of preserving its neutrality despite unequivocally being a “State.”48 Vidmar explains that “non-member observer State” status is a wide-ranging criteria with no definition laid out in the U.N. Charter and a variety of past uses.49 Thus, it is not reasonable to argue that such a status is “State-creating.” The use of G.A. Resolution 67/19 in the Pre-Trial Chamber’s reasoning that the G.A. had given an “unequivocal indication” of Palestinian “Statehood” was flawed.50 Vidmar argues that the resolution admitted Palestine to the “politically created extra-Charter club of non-member observer States. Nothing more and nothing less.”51

Shaw argues that, ultimately, allowing the Prosecutor’s argument that “State” means something different in the context of the Rome Statute exclusively will lead to conflicts with other international entities which do not accept exceptional definitions of statehood.52 This argument is compelling. Firstly, one of the reasons to restrict an exceptional definition of “State” in a particular “all States” treaty is predictability. It is important that all states have the same understanding of the rights and obligations that result from joining or not joining the treaty or the international organization it creates. That states have not invoked the inter-State dispute settlement provisions in Article 119 of the Rome Statute in this case to challenge Palestine’s initial accession does not mean the Court can rule on territorial jurisdiction with impunity.53 It is quite possible that those States did not object to Palestinian accession in general but would now object to what Shaw terms “an exaggerated and manufactured definition of relevant substantive provisions of the Statute” to assert jurisdiction before territorial issues are resolved.54

The second reason to require consistency between legal and procedural “statehood” is accountability. If entities can choose to be “States” when they benefit from that status and not to be when it does not benefit them, the entire system of rights and obligations that come from statehood must go out the window. It can be seen from the way various states spoke about G.A. Resolution 67/19, which elevated Palestine to non-member observer State status, that those states view the acquisition of “State” status as a significant change in position, which Palestine has not yet made.55 While Yaël Ronen points out that there is no set limit on the ICC Prosecutor’s jurisdiction over what to consider a “State” for the purposes of the Rome Statute, it is fundamental to a consent-based conception of treaty acquiescence that all treaties which do not otherwise define “statehood” must be assumed to use the same definition of the term “State.”56

The Prosecutor conceded that the joint action of the state parties cannot, as Shaw says, “render meaningless the deficiencies in Palestinian adherence to the essential conditions of statehood.”57 Shaw contends that, while the Rome Statute places no explicit limits on the competence of the Prosecutor to derive a variable indication of “statehood,” a court like the ICC must abide by the clear meaning of terms within its constituent instrument.58

B. Palestine cannot convey to the ICC legal authority that the Palestinian government does not possess, and a legitimate assertion of jurisdiction by the Court in this case would require a determination of territorial issues beyond the Court’s competency.

Articles 11 and 12 of the Rome Statute define the Court’s jurisdiction: Article 12, which explains that “a State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court,” is particularly significant.59 Article 12(2) mandates that the “State” in question be either the “State” of which the accused is a national or the “State” in whose territory the alleged crime occurred.60 Vidmar acknowledges that his territorial requirement for jurisdiction is where the separation of “legal” and “procedural” statehood falls apart in the case of Palestine at the ICC.

Kovács highlights this issue with the Pre-Trial Chamber’s ruling that the territory of the “State of Palestine” is the West Bank, Gaza, and East Jerusalem. He argues that the Prosecutor’s reliance on the idea of “occupation” is flawed, since the idea that Israel is “occupying” comes from non-binding U.N. resolutions. Additionally, the Prosecutor’s claim that sovereignty reverts to the pre-colonial possessor is not relevant here—there was no sovereign Palestine before Israeli “occupation.”61 Kovács provides another compelling example: the previous possessor was an occupying power over territory previously belonging to a sovereign state.62 Unless the Prosecutor is advocating the return of the Ottoman Empire, her logic is flawed. Kovács also brings up the Oslo Accords, whose relevance the Prosecutor downplays. She appears to have decided Oslo is irrelevant based on her apparent belief that G.A. resolutions calling Israel an “occupier” are legally binding.

Kovács highlights the problem of shared competencies and limited jurisdiction, while Eugene Kontorovich points out the problem with Palestinian conveyance of jurisdiction over Israelis to the ICC. He explains that a referral of jurisdiction to the ICC is a delegation of some of the jurisdiction a State Party possesses. Kontorovich lays out two essential elements that must be met for a State Party to convey jurisdiction: the State must actually have territorial sovereignty over the areas on which the crimes were allegedly committed and it must not have previously given up such jurisdiction.63 “In other words,” Kontorovich writes, “a state cannot delegate what it does not have,” exactly what Palestine is attempting to do on both counts.64 He explains that the limits of Palestinian territory are not established—Israel has negotiated borders with Jordan and Egypt, but not yet with Palestine.65

Firstly, the actual territory of “Palestine” is not clear. Kovács argues that, currently, the Prosecutor may be able to negotiate in PA-controlled territory in the West Bank.66 Vidmar cites the Pre-Trial Chamber’s holding with regard to the territory of Palestine, which it said had to be interpreted in line with international human rights law. However, the Chamber took that too far and, as Vidmar compellingly argues, went beyond its competence to rule on Palestinian territorial rights.67 Vidmar acknowledges a right of Palestinian self-determination, but he explains that such a right does not mean that Palestine has a self-executing territorial entitlement.68 In other words, he says, self-determination of Palestinians undisputedly applies in Palestine, but the fundamental question is where “Palestine” is. The Pre-Trial Chamber effectively said that Palestine is a state party and the oPt is a place where Palestinians have a right to self-determination. This is accurate. What is not accurate is the Chamber’s conflation of those two ideas to argue that the “Palestine” over which the ICC supposedly has jurisdiction has the same borders as the oPt. Vidmar and Kovács point out that borders of Palestine are not currently settled. As is discussed in Section II of this comment, the PA, the government with the power to possibly accede to the Rome Statute, does not govern in the Gaza Strip. Thus, as Vidmar explains, the Chamber should explain why the territory of the procedural entity that is the “State Party Palestine” is the same as the oPt.69 To determine whether an action took place on the territory of a “State Party” would require a holding regarding Palestinian territorial competence beyond that on which the Pre-Trial Chamber can rule. The fundamental issue is that the Pre-Trial Chamber problematically reads “statehood” into self-determination by holding that Palestine is supposedly a procedural, rather than legal, entity, but that the territory of the procedural “Palestine” must be the area in which Palestinians possess legal self-determination.70 As the sole legal government of Palestine, the PA may have an argument that its territory is the same as that of “procedural Palestine.” However, it has no governmental control over Gaza and thus should not be able to argue that Gaza is “its” territory. “Can it be assumed that a State party to a treaty also has to have a geographical dimension, or is ‘State party’ purely a concept of treaty law?,” Vidmar asks.71 He explains that the fundamental issue with detaching the treaty law idea of procedural statehood from the general international law of “States” is that there can be a disconnect between the area of the procedural and legal “State,” which in turn can undermine the territorial effectiveness of any treaty to which the “procedural State” applies. Such is the case with Palestine, rendering Vidmar’s statehood for procedural purposes arguably irrelevant in this case. The effect of this divide on Palestinian statehood is further discussed in Section II.

While Mutaz M. Qafisheh raises a counterpoint to this issue, his categorical statement that actual governmental control over an area is not necessary for the area to be part of a “State’s” territory, only an arguably legally-supported claim, sets a dangerous precedent.72 If Qafisheh is correct, any disputed entity can make a unilateral claim of borders over which it holds no control but which it has some relationship to (for example, the Palestinian state under this theory could feasibly claim that all of Israel, or for that matter, all of Jordan, is Palestine) and, as long as it has some territory, be justified in its claim. John Quigley argues that Israel’s “belligerent occupation” of Palestinian territory is preventing Palestine from exerting the territorial sovereignty that Kontorovich argues should be required, while Prosecutor Bensouda echoes this argument in her Request to the Pre-Trial Chamber.73 A problem with Quigley’s argument is that he does not distinguish between the right to eventual control and current territorial sovereignty. Additionally, Quigley’s downplaying of the requirement for independence as an element of territorial control is also problematic—if he is correct, a disputed entity that is yet to gain legal independence can claim territory over which it never ultimately gains control and subject the State from which it secedes to ICC jurisdiction.74 His distinction ignores the meaning of the term “independence.” After all, the right to legally exert force is one of the mandates of a government. If a nominal “State” does not have to be independent to exert legitimate territorial control, then, implicitly, the “State” from which it is seceding is exerting power illegally. Such a holding would effectively eliminate the need for any territorial element in the conveyance of jurisdiction, essentially rendering borders meaningless for the purposes of the ICC.

As Prosecutor Bensouda concedes, the borders of the “Occupied Palestinian Territory” are disputed, and Israel has potentially valid competing claims over parts of the West Bank.75 In addition, the PA, recognized by the international community as the sole legitimate government of the “State of Palestine,” undisputedly does not have control over the Gaza Strip.76 Finally, under the Oslo Accords signed in 1995, the Palestinian government has no territorial or functional jurisdiction over Israeli citizens in its territory.77 Although the Rome Statute does not explicitly provide that States Parties can only convey jurisdiction that they possess, the ICC is not a court of universal jurisdiction. It must have authority legitimately conveyed to it by member states. The most compelling argument that Palestine cannot convey jurisdiction over Israelis is Article 12(2)(a)’s reference to “the State on the territory of which the conduct in question occurred.”78 Shaw explains that, because the Court does not have jurisdiction over Israel, a non-state party, the Court may only have jurisdiction if the alleged crimes were committed on the territory of a “State.”79 Shaw highlights the difference between the Geneva Convention, which allows a non-state entity to join the treaty and thus obviates the territorial jurisdiction issue, and a treaty like the Rome Statute, which makes no such provision.80 Thus, Palestine must presumably be a “State” with actual territory for the assertion of jurisdiction to be valid. This requires a finding that Palestine, as a state, is a legal, not a procedural, entity.

Regardless of Palestine’s status as a “State” and resulting ability to accede to the Rome Statute, the Oslo Accords present a territorial jurisdiction issue fatal to Palestine’s ability to convey authority to the Court. Under Oslo II, the Palestinian government has fully renounced criminal jurisdiction over Israelis in the section of the West Bank called “Area C,” where Israel holds full territorial control.81 It is essential to note that neither Israel nor the Palestinian government has abrogated the Oslo Accords, and, in fact, Palestine has alleged Israeli violations of the Accords in recent years.82 Shaw is critical of the argument that the PA possesses the authority to delegate jurisdiction to the Court. Contrary to what some commentators appear to believe, the Accords are neither one-sided, with all the benefits going to Palestine and burdens to Israel, nor are they meaningless pieces of paper that are not binding under international law. Certain criminal jurisdictional rights are reserved for the PA under the Accords. The PA has the right to exercise criminal jurisdiction for crimes committed by Palestinians and non-Israelis, but does not have those rights when Israelis are the alleged victims or perpetrators.83 Palestine cannot convey jurisdiction over Israelis to the Court because it does not possess the right to try them itself. This argument should be virtually impossible to refute, but that has not stopped various groups from trying. There has been a problematic argument raised that “self-determination” rights within the oPt automatically convey comprehensive criminal jurisdiction.84 In addition to the lack of state practice to automatic conveyance of comprehensive jurisdiction, the argument similarly confuses “self-determination,” a right to determine future political status, with “statehood,” which is the actual conferral of jurisdictional powers. If such an argument were allowed to succeed, any disputed entity could sign away any right it wanted to as part of treaty negotiations before arguing that some aspect of international human rights law mandates that it retains that right, resulting in routine meaningless promises in treaty negotiations.

Because the Oslo Accords remain relevant and present insurmountable issues to Palestinian territorial jurisdiction over Israelis, the Court cannot assert jurisdiction over the oPt.

II. Definitions of Statehood Under International Law

As established in Section I, Palestine can accede to the Rome Statute only if it is a “State” under international law because its territorial jurisdiction is inherently bound up with its legal statehood. Thus, it is essential to determine whether Palestine is a “State” when deciding whether the ICC can exercise its jurisdiction. To do so first requires defining a “State” in international law, then clarifying whether Palestine meets such a definition. If Palestine is not a “State” under the international law definition of the term, it cannot legitimately accede to the Rome Statute or become a State Party to the ICC. As this Section demonstrates, Palestine has not yet attained statehood regardless of which theory is used to define the term, unless a case-specific definition purpose-built to account for its deficiencies as a potential “State” is utilized. “Palestine” as a unified entity does not meet the requirements for statehood under any reasonable interpretation of the objective declaratory theory, which Prosecutor Bensouda concedes is the theory used by the ICC.85 In addition, Palestine has arguably not gained sufficient recognition as a current legal “State,” rather than procedural entity or self-determining future “State,” to allow for it to have achieved statehood under the relational constitutive theory. As discussed in Section II(B), neither the right to self-determination nor G.A. Resolution 67/19, which elevated Palestine to the status of non-member observer State at the U.N., truly communicates unequivocal recognitive practice by the international community. Because theories that argue for current Palestinian statehood conflate future rights with present status, it is important to highlight the differences in legal rights granted by current statehood versus self-determination.

A. There are two primary theories of statehood under international law, the declaratory and constitutive theories. Of these, the declaratory theory is used in international legal definitions of “States.” The Prosecutor believes that the declaratory theory is the defining theory for the purposes of the Rome Statute.

The classic declaratory theory, as embodied in the 1933 Convention on the Rights and Duties of States (Montevideo Convention), holds that statehood is an objective legal status created by the operation of certain verifiable legal criteria.86 As Brownlie’s Principles of Public International Law explains, recognition under a declaratory theory is a “declaration or acknowledgement of an existing state of law.”87 Actual “Statehood” is conferred by the achievement of the objective factors laid out in Article 1 of the Montevideo Convention: a single government, a defined territory, a permanent population, and an ability to enter binding international agreements.88 Article 3 of the Montevideo Convention clarifies explicitly that recognition has no role to play in legally defining statehood under this theory—an entity is or is not a “State,” regardless of the opinion of other members of the international community.89 As Stefan Talmon puts it, under a declaratory theory, recognition is “status-confirming.”90 The declaratory theory has been supported by substantial state practice and is the generally-accepted theory of statehood under international law.91 Objective tribunals like international courts typically use the declaratory view.92 The International Court of Justice is an example of an international court that has accepted this theory, holding that in the case of the Bosnian genocide, the fact that the parties to the dispute had not recognized each other at the time of the crimes in question did not prevent one party from bringing allegations against the other.93 The declaratory theory is often used by states to bring claims against states which they do not recognize.94 Ironically, Israel is a classic example of this trend, frequently being accused of crimes under international human rights law by Arab states that do not recognize it as a state.95

The constitutive theory takes a different approach, arguing that the very act of recognition, rather than any objective criteria, is what creates statehood. As Talmon puts it, under a constitutive theory, recognition is “status-conferring.”96 Constitutive statehood argues that when a disputed entity is treated in the same way that the international community treats entities that are undisputedly “States,” that entity has attained statehood. This theory, advanced by Hersch Lauterpacht in the 1940s, holds that states are the arbiters of the international community. Lauterpacht contends that, fundamentally, it is a violation of the principle of a consent-based legal system if existing “States” are bound by objective factors beyond their own will.97 Building on this idea, John Quigley states categorically that an entity is a state if it is accepted as a state, arguing that, in the case of Palestine, being pressured to treat Israel as a state and negotiate with respect to territory implies recognition of statehood.98 However, the constitutive theory has been criticized for ignoring certain objective elements of international law. For example, states cannot by their own judgment provide territorial or governmental competencies that an entity does not have in reality.99 One of the most significant problems with the constitutive theory arises when recognition is contested. How many existing states must recognize the “statehood” of a new entity before it becomes a “State?” Given that constitutive theorists argue that statehood is fundamentally relational, is it enough to possess “procedural statehood” in terms of treaty-making capacity? George Kyris lays out a further nuance: there is a difference between the collective recognition of a right to statehood and recognition of current statehood.100 While a right to eventual Palestinian statehood has been widely recognized, there is not yet equal recognition of a current Palestinian State. This confusion will be discussed later in this section. Eva Erman argues that, rather than a truly relational system, constitutive statehood may introduce a fifth element—wide-ranging recognition—into the declaratory scheme.101

B. Palestine has not yet achieved statehood under either the declaratory or a reasonable interpretation of the constitutive theory. Palestine has only achieved statehood under a definition purpose-built to accommodate its deficiencies.

While normative claims about what is the “better” theory of statehood are all well and good, for the moment, the declaratory theory dominates state practice. Prosecutor Bensouda has acknowledged that Palestine cannot meet the typical requirements of the Montevideo Convention.102 Firstly, there is no single government. The PA, recognized as the sole legitimate government of Palestine in the international community, has no governmental control over Gaza. In fact, articles came out in November of this year explicitly calling for the creation of a new unity government in Palestine, presumably so that Palestine can meet this Montevideo Convention factor.103 Although most international organizations discuss “Palestine” as a monolithic entity, with Hamas in power in the Gaza Strip and the Fatah government in the West Bank, what the single government of “Palestine” consists of is unclear. Secondly, while there are permanent populations in the West Bank, Gaza, and East Jerusalem, the divide between the areas, as well as the lack of negotiated borders and the institutionalized divisions of jurisdiction negotiated within the Oslo Accords, make it difficult to define the permanent population of “Palestine.”

The final two points, however, are the most problematic for the possibility of Palestinian statehood under the Montevideo Convention, motivating scholars and the prosecutor to derive alternative explanations for Palestinian statehood. The first of these barriers is the idea of a “defined territory.” Kovács and Kontorovich argue compellingly that the definition of a “territory” of the state of Palestine has yet to be decided.104 Kontorovich argues that, even if Israel is occupying the West Bank for the purposes of international humanitarian law, such occupation does not automatically make the occupied territory Palestinian.105 He concedes that the areas of the West Bank containing settlements are not necessarily legally Israeli territory.106 Even so, it is not clear who the territory belongs to because the Oslo Accords say such territories are yet to be negotiated and borders are not yet defined. To assume, as Bensouda does, that the right of self-determination means that all such territories will be negotiated to be Palestinian assumes an outcome of the negotiations that is by no means guaranteed.

Prosecutor Bensouda acknowledges that the Montevideo Convention criteria are the criteria used for a determination of statehood at the ICC.107 However, since Palestine cannot meet the criteria, Bensouda calls for a “case-specific” application of the Montevideo Convention. She contends that, in the context of self-determination, the Montevideo Convention criteria can be relaxed.108 While she argues that there are examples of such a relaxed application, she notably does not name any, merely quoting a number of theoretical examples.109 Bensouda argues that, firstly, the bilateral recognition of Palestine by 138 states must be given strong weight.110 Secondly, she contends that the right of the Palestinian people to self-determination and the eventual right to statehood of a state on the oPt must be enough for a current holding of statehood.111 Finally, and maybe most controversially, Bensouda argues that Palestine has failed to meet the Montevideo Convention criteria solely because of Israeli actions.112 She argues for the inapplicability of all international agreements giving Israel control of the territories it occupied in 1967, before contending that the supposed illegality of the Israeli settlements in the West Bank is a fundamental violation of international law. (Whether or not these settlements are illegal was what the prosecutor was asked to investigate).113 She does not, however, address the history of such claims, which explicitly did not define borders and, indeed, cites a G.A. resolution that called on parties not to acknowledge any change to pre-1967 borders without negotiation.114 While Prosecutor Bensouda seems to see this provision as applying only to Israel, Palestine should also not be able to unilaterally claim authority over those areas in question. Otherwise, any group that has been promised “self-determination” would be able to unilaterally claim whatever territory it wants before arguing that borders are yet to be determined because, under this theory, a right to self-determination would negate the need to negotiate territorial rights before conferring jurisdiction over territory.

Quigley’s categorical statement that entities treated as states are states is appealing to constitutive theorists, but does not reflect reality.115 Some constitutive theorists contend that G.A. Resolution 67/19 signified wide-ranging acknowledgement of Palestinian statehood, but this is a misstatement of the resolution’s intent. While Yaël Ronen contends that a G.A. resolution admitting a new State to the U.N. is typically perceived as confirming the objective State status of that entity, she argues that even a resolution which recognizes statehood but does not admit that entity to the U.N. would still probably fulfill the requirements because admission or non-admission is a procedural status that does not indicate the merits of the case for statehood.116 William Thomas Worster argues that admission as an observer State has long been “a preliminary gesture” before attaining actual statehood, yet he simultaneously contends that Palestine’s non-member observer State status is indicative of current statehood.117 However, Vidmar disagrees. In fact, Vidmar contends that even full U.N. admission does not necessarily confirm statehood.118 Palestine is not a full member of the U.N.—it is a “non-member observer State.” Such a status does not exist in the U.N. Charter, but is derived from state practice.119 Vidmar explains that non-member observer State status cannot provide the same benefits as those derived from full U.N. membership.120 As previously discussed, he does not believe that a finding of an entity’s procedural treaty-making power bears any relation to a recognition of its actual “State” status. Whether or not Vidmar’s theory is correct, it is important to note the difference between non-member observer States and U.N. Member States.

Vidmar cites Austria and Bangladesh as examples of non-member States that had not yet attained statehood.121 Austria in the 1950s is a surprisingly apposite example with regard to supposed Palestinian statehood. Austria was occupied by the Allies after World War II and joined the U.N. as a non-member observer State in 1952.122 One of the limits on Austrian governmental competence was a restriction on its treaty-making capacity—it was only allowed to enter treaties with the four occupying powers.123 During its years as a non-member observer State, Austria’s legal status had not yet been settled, but once that legal status was successfully negotiated, Austria was seen as a true “State” and thus admitted to the U.N. as a full member.124 Vidmar contends that those who see non-member observer State status as equivalent to full membership focus too much on the last word—“State”—rather than reading the status as a whole, which communicates a different legal position entirely. Otherwise, the U.N. Charter should be updated to allow full membership based on a majority vote of the G.A. and remove the “non-member” aspect of observer State status. After all, if the constitutive theorists are correct, non-member observer and member State status are identical.

Ronen, too, pushes back against the idea of current constitutive Palestinian statehood. She clarifies that recognition under a constitutive theory must be unequivocal.125 G.A. Resolution 67/19 is not. Ronen explains that the resolution discusses a “permanent two-State solution” as a future goal and makes no clear statement that the PA fulfills the requirement of effective government.126 Because the resolution is ambiguous as to its recognitive effects, Ronen draws attention to explanations of the votes that took place on the floor of the United Nations. A number of states who voted in favor clarified that they did not see the resolution as creating “State” status. Of these, New Zealand stated that its vote represented a commitment to an eventual two-state solution and did not impact New Zealand’s recognition of Palestine.127 Belgium and Finland both explicitly stated that their votes in favor of the resolution did not represent recognition of a full state.128 Ronen argues that the resolution was intentionally written with sufficient vagueness that states which did not support current recognition of a Palestinian state but which believe in the eventual creation of Palestine would be comfortable joining.129 In the relational, consent-based system favored by constitutive theorists, it would seem that Member States should be taken at their word that the resolution did not communicate full acceptance of Palestinian statehood.

Worster’s examples of constitutive recognition of Palestine, which include the Olympics, FIFA (soccer’s world governing body), and the American Academy of Motion Picture Arts and Sciences, are deeply troubling. None of these are legal organizations, and each has its own means of determining recognition. FIFA, for example, has separate teams for England, Scotland, Northern Ireland, and Wales, which is probably not a statement of political recognition by the organization.130 Palestine’s recognition by the League of Arab States and other Muslim international organizations is not a compelling argument for widespread recognition either. Additionally, Prosecutor Bensouda’s primary argument for recognition in her Request to the Pre-Trial Chamber goes as follows: the Court only has jurisdiction over States, and only “States” can accede to the Rome Statute. By virtue of Palestine’s accession, then, it is sufficiently a “State” to be able to accede to the Statute. If this tautological logic is valid, then any entity can attain statehood by being voted into any organization that permits only “States,” regardless of the legitimacy of that perception or range of recognition.131

C. Even if Palestine has achieved statehood under a constitutive approach, it cannot convey jurisdiction to the ICC which it does not possess. Due to jurisdictional limitations put in place by the Oslo Accords, Palestine cannot convey authority to the ICC.

While it seems clear that a hybrid theory in which recognition plays some role may be promising in the future, Quigley’s claim that a Palestinian state could exist with no territory at all is troubling.132 Quigley argues that a majority of countries treat the PA as akin to a state and that, thus, nothing else in the statehood formula matters.133 Apparently, what Quigley sees as a state is not the government, territory, or citizens, but whatever nominal authority (without requiring any actual power beyond that which it has declared) can get enough votes at the G.A. to rule that it can be an observer. What, then, would be the difference, if any, between full U.N. membership and the easier to acquire non-member observer State status? Quigley’s formulation would mean that the PA can sign away any territory or rights it wants in a treaty with Israel, but such signing would ultimately mean nothing because Palestine, for Quigley, is apparently wherever Palestine wants to be. Few of the States that Quigley cites as recognizing “Palestine” have opined on where they believe Palestinian territory ends and Israeli territory begins, because such negotiations are to be completed as part of eventually creating a Palestinian state.

Ronen contends that G.A. Resolution 67/19 is an acknowledgement of both effective Palestinian control in Area A of the West Bank—she sets aside the question of control of Gaza—and the legal right of Palestinians to statehood in the West Bank and Gaza based on self-determination.134 However, she conflates the recognition of a right to future territorial control over some territory with actual, current control of that territory. Quigley goes one step further, arguing that the 1988 declaration of independence by Palestine was the birth of a state.135 However, he does not address the territorial concerns raised above. Neither argument addresses the Montevideo Convention requirement of a “defined territory” which the “State” must presumably control.

The Oslo Accords also present a potentially insurmountable issue when it comes to the fourth Montevideo Convention factor, the ability to enter into binding international agreements. This factor also undermines the claims to Palestinian accession to the Rome Statute laid out elsewhere in this Section. Under Oslo, the PA does not have “powers and responsibilities in the sphere of foreign relations” and any relationships between the PA and foreign states are not considered to be foreign relations.136 There are four exceptions: economic agreements; agreements to arrange assistance for the PA; regional development plans; and cultural, scientific, and educational agreements.137 However, the ICC falls into none of the four aforementioned categories. As a cultural organization, UNESCO falls into one of the four permitted Oslo categories; however, to imply that Palestinian accession to an organization within one of these categories overcomes the limitation for an organization outside of that category is problematic. Additionally, the limitations on the PA’s foreign relations mean that its ability to enter binding international agreements is not equivalent to that of a “State.” Those limitations were not created by illegal Israeli action, but by a mutually agreed roadmap for negotiations. Given that neither side has repudiated Oslo, the limitations to the PA’s competence to enter binding international agreements are still in place, preventing the PA from meeting the fourth Montevideo Convention factor. Additionally, it is troubling that such a range of theorists ignore the agreed-upon limits from Oslo and argue that Palestine can enter into the Rome Statute.

While some theorists dismiss the legitimacy of any potential Israeli legal claims to parts of the oPt despite Prosecutor Bensouda’s acknowledgment of the potential legitimacy of such claims, Kontorovich and Abraham Bell take the opposite approach. They explain that, under the decolonizing principle of uti possidetis juris, a post-colonial state has a legitimate legal claim to all the territory it possessed when it was a colony.138 The principle of uti possidetis juris has been applied to all states emerging from Mandates, as Israel did, with the borders of the Mandates in every case becoming the borders of the new state.139 Curiously, as they point out, several scholars have contended that a future Palestinian state should inherit the borders of the British Mandate under the uti possidetis juris doctrine or that uti possidetis juris should influence only the borders of future Palestine.140 None of these scholars mentions the impact of the doctrine, which has had wide applicability throughout decolonial movements, on Israel’s claims to territory; in fact, more than one contends that the only state to emerge out of the British Mandate with a claim to its borders was “Palestine.”141 These claims ignore the very real fact that the State of Israel exists. If Israel does have colorable legal claims to parts of the oPt, then it is essential for these territories to be negotiated before Palestinian jurisdiction is treated as a given.

Finally, Prosecutor Bensouda argues that, if Palestine is not admitted to the Court, a number of alleged crimes may potentially go unpunished.142 This may be true. It is also irrelevant. There are many entities, States and non-States, in which war crimes, crimes against humanity, or other violations of international law are allegedly taking place. The Court cannot automatically assert jurisdiction over such entities just because alleged crimes might go unpunished if it does not do so. That is, the possibility that an alleged crime might go unpunished if Palestine is not allowed to join the Court does not mean the Court can overlook the other areas in which Palestine is lacking the capacity to accede to the Rome Statute and confer jurisdiction. Otherwise, the ICC would become a court of universal jurisdiction at the Prosecutor’s discretion, regardless of what status an entity possesses and whether or not it has acceded to the Rome Statute.

III. The Social Legitimacy of the ICC

Social legitimacy of international organizations can be understood as the recognition of their right to be obeyed.143 Because international organizations like the ICC have no coercive power, they depend on the cooperation of governments to exert authority.144 Social legitimacy is based on the belief by its citizens that “an actor, rule or system is morally or legally legitimate.”145 “Legitimation” is the process by which an international organization causes the actors within the organization to believe in its justification for exerting authority.146 In his book After Anarchy, Ian Hurd discusses the social legitimacy of the U.N. to its “citizens,” the Member States. Similarly, the ICC must be regarded as legitimate by States Parties in order to exert power. Hurd argues that states obey the authority of the Security Council because doing so enhances their social position in the community of states.147 In turn, states use the perception of the Security Council as “socially legitimate” among their peer states to exert pressure for the international community to act in a certain way. At this point in its history, the U.N. has successfully achieved social legitimacy within the international community—the fact that a U.N. resolution on Palestine has so much potential effect on the recognition of a Palestinian state is a comment on the UN’s social legitimacy in and of itself. That states put so much effort into winning over the U.N. in order to show that their concerns are just reflects the significant social legitimacy the U.N. possesses within the international community.148

The “power” of the ICC is different than that of the Security Council. It has also had much less time to engage in legitimation and been less successful than the U.N. at doing so. For the first several years of the ICC’s existence, all the prosecutions it brought were against perpetrators based in Africa. This led to a view that the ICC was biased and unwilling to bring prosecutions against European powers.149 Some African states no longer saw the Court as the objective arbiter of international law that it aspired to be, and some threatened to withdraw their cooperation.150 Once the Court had been socially delegitimized in this way, it had to re-legitimize itself in order to continue playing a major role in international law. Prosecutor Bensouda worked hard to re-legitimize the Court in the eyes of African and other non-Western countries, particularly by increasingly investigating situations outside of Africa, even if she had to devise new jurisdictional theories to do so.

However, the ICC is already unpopular with, and seen as illegitimate by, non-States Parties like the United States and Israel. President Trump made it illegal to cooperate with the Court.151 Any chance the ICC has to become as significant as the U.N. or International Court of Justice relies on it increasing its legitimacy among those nations which are not currently States Parties as well as preserving its social legitimacy among those current States Parties who opposed Palestine’s accession. Under current international law, it is clear that Palestine is not yet a State and thus cannot accede to the treaty as a “State Party.” By asserting jurisdiction anyway, the Court is delegitimizing itself. This delegitimization has hurt its ability to play a role in peacemaking after the current Israel–Hamas war. Ironically, when current Prosecutor Karim Khan vowed to investigate both the Israeli and Palestinian sides in an attempt at re-legitimation, a number of Palestinian groups refused to meet with him.152 Since a balanced investigation that would help legitimize the Court in the eyes of Israel and the United States is not possible, despite Prosecutor Khan’s assertions to the contrary, he should not pursue a prosecution of Israelis or Palestinians based on the current or past conflicts. Otherwise, the ICC risks being seen as an organization at the whims of politics rather than a legal organ.

IV. Conclusion

The International Criminal Court is unlikely to serve as an effective peacemaking body after the current Israeli–Palestinian war because it delegitimized itself among both States Parties and non-States Parties by incorrectly asserting jurisdiction over Palestine in 2021. Only “States” can accede to the Rome Statute and become States Parties to the ICC. Arguing that there is a separate definition of “State” for the purposes of the Rome Statute when such a status is not defined within the treaty would require a finding that the Vienna Formula applies to Palestine in the current situation.153 Even if there is such a thing as a “State” for procedural purposes under the Vienna Formula, the ICC Pre-Trial Chamber’s holding that Palestine can be a “State” for the purposes of the Rome Statute is incorrect because a ruling on such a status requires decisions on territorial issues beyond the Chamber’s competence. Thus, even if Palestine is a “State” for the purposes of the Statute, it cannot accede to the ICC unless it is a “State” under international law.

The primary theory of statehood under international law is the objective declaratory theory as defined in the Montevideo Convention. Under such a theory, which Prosecutor Bensouda conceded is the theory used by the ICC, Palestine is not a state because it does not fully control its territory and is limited in its ability to enter international agreements. Applying a “context-specific” version of the Montevideo Convention is incorrect because there is no reason to do so unless the outcome of achieving Palestinian statehood is assumed. Even under a relational constitutive theory of statehood, Palestine has not gained sufficient unequivocal recognition to be a “State” under international law. G.A. Resolution 67/19, which elevated Palestine to “non-member observer State” status, did not imbue it with statehood.

Finally, even if Palestine is a state, it cannot convey authority to the ICC that it does not possess. Because of the Oslo Accords, which it has not repudiated, Palestine has no criminal jurisdiction over Israelis and its territorial boundaries have not yet been negotiated. Because of territorial uncertainty, it cannot be said that any alleged crimes took place “on the territory” of a State Party; because of jurisdictional limitations, Palestine cannot convey authority over Israelis to the ICC. Thus, the Pre-Trial Chamber was incorrect in its holdings to the contrary.

If Prosecutor Bensouda had not incorrectly asserted jurisdiction over Palestine in 2021, the ICC would potentially be a far more valuable tool in reconciliation and punishment of perpetrators after the current Israel–Hamas war. Because the ICC has been delegitimized by the misguided decision to launch an investigation in Palestine, it will not serve as an effective tool for reconciliation and other forms of peacemaking in the current conflict.

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

1.
Aaron Boxerman, What We Know About the Death Toll in Israel from the Hamas-Led Attacks, N.Y. Times, Nov. 12, 2023, available online; see also Israeli Authorities Identify Gaza Hostages Dead in Captivity, Reuters, Dec. 1, 2023, available online. ↩
2.
Israel has Been Warned Against “Collective Punishment” of Palestinian People—But What Does This Mean?, Sky News, Oct. 26, 2023, available online. ↩
3.
Israel Demands UN Chief Resign After He Says Hamas Attacks “Did Not Occur in Vacuum”, Times of Israel, Oct. 24, 2023, available online; for an example of U.S. support, see Ed Pilkington, US Increasingly Alone in Israel Support as 153 Countries Vote for Ceasefire at UN, The Guardian, Dec. 12, 2023, available online. ↩
4.
Karim A. A. Khan, ICC Prosecutor, Statement: “We Must Show That the Law Is There, on the Front Lines, and That It Is Capable of Protecting All” (Dec. 3, 2023), available online. ↩
5.
Office of the Prosecutor, ICC, Situation in Palestine (Apr. 3, 2012) [hereinafter 2012 Decision], available online. ↩
6.
Id. at 2. ↩
7.
Press Release, ICC, ICC Welcomes Palestine as a New State Party (Apr. 1, 2015), available online. ↩
8.
Press Release, ICC, ICC Pre-Trial Chamber I Issues its Decision on the Prosecutor’s Request Related to Territorial Jurisdiction Over Palestine (Feb. 5, 2021), available online. ↩
9.
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, ¶ 112 (ICC PTC I, Jan. 22, 2020) [hereinafter Prosecution Request], available online.

(Bensouda claims that Palestine has been able to accede to the Rome Statute but does not speak to any intent to prosecute Palestinian nationals, over whom she concedes the Court has jurisdiction, for their crimes in Israel. Such a prosecution is clearly possible under the terms of the Rome Statute. Bensouda only requests jurisdiction over Palestinian territory and does not discuss the possibility of prosecuting Palestinian nationals for crimes in Israel after Palestine’s accession to the Statute);

see Rome Statute, Art. 12.

(If Bensouda’s claim of Palestinian statehood for the purposes of the Statute is correct, however, the Court can prosecute Palestinian nationals for their crimes committed even on the territory of a non-State Party pursuant to Art. 12). ↩
10.
Matthew Lister, The Legitimating Role of Consent in International Law, 11 Chi. J. Int’l L. 663 (Jan. 1, 2011), available online. ↩
11.
Vienna Convention on the Law of Treaties, Art. 1, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩
12.
Jure Vidmar, UN Membership and the State Requirement: Does “State” Always Imply “Statehood”?, 24 Max Planck Y.B. U.N. L. 201, 214 (2021), paywall, doi. ↩
13.
Id. at 215. ↩
14.
Id. at 220. ↩
15.
Rome Statute, supra note 9, at Art. 125. ↩
16.
Vidmar, supra note 12, at 214. ↩
17.
Rome Statute, supra note 9, at Art. 125. ↩
18.
Vidmar, supra note 12, at 230. ↩
19.
Prosecution Request, supra note 9, ¶ 43. ↩
20.
Id. ¶ 42. ↩
21.
Id. ¶ 43. ↩
22.
Rome Statute, supra note 9, at Art. 12. ↩
23.
Malcolm N. Shaw, A State is a State is a State? Some Thoughts on the Prosecutor’s Response to Amici Briefs on Territorial Jurisdiction—Part I, EJIL Talk (Jun. 4, 2020), available online. ↩
24.
Situation in the State of Palestine, ICC-01/18, Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States (Apr. 30, 2020) [hereinafter Response], available online. ↩
25.
Shaw, supra note 23. ↩
26.
Response, supra note 24, ¶ 47; but see Response, supra note 24, ¶ 14. ↩
27.
Prosecution Request, supra note 9, ¶ 7; see also G.A. Resolution 67/19, UN Doc. A/RES/67/19, Status of Palestine in the United Nations (Nov. 29, 2012), available online. ↩
28.
Vidmar, supra note 12, at 215. ↩
29.
Id. ↩
30.
Id. at 218. ↩
31.
UNESCO Constitution, Art. II (Nov. 16, 1945), available online. ↩
32.
UNESCO Votes to Admit Palestine as Full Member, UN News, Oct. 31, 2011, available online. ↩
33.
ICC & Palestine: Amicus Submissions on Jurisdiction, Israel Legal Advoc. Proj., available online (last visited Dec. 31, 2023). ↩
34.
Shaw, supra note 23. ↩
35.
Id. ↩
36.
Vienna Convention, supra note 11, at Art. 31. ↩
37.
Malcolm N. Shaw, The Article 12(3) Declaration of the Palestinian Authority, the International Criminal Court and International Law, 9 J. Int’l Crim. Just. 301, 311 (May 2011), paywall, doi. ↩
38.
Shaw, supra note 23. ↩
39.
Id. ↩
40.
Vidmar, supra note 12, at 242. ↩
41.
2012 Decision, supra note 5. ↩
42.
United Nations Office of Legal Affairs, UN Doc. ST/LEG/7/Rev.1, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, 23 (1994), available online. ↩
43.
Situation in the State of Palestine, ICC-01/18-143-Anx1, Judge Péter Kovács’ Partly Dissenting Opinion, ¶ 218 (ICC PTC I, Feb. 5, 2021) [hereinafter Kovács Dissent], available online. ↩
44.
Id. ¶ 222. ↩
45.
Id. ¶ 226. ↩
46.
Vidmar, supra note 12, at 221. ↩
47.
Id. at 209–11. ↩
48.
Id. at 211. ↩
49.
Id. ↩
50.
Situation in the State of Palestine, ICC-01/18-143, Decision on the “Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine,” ¶ 96 (ICC PTC I, Feb. 5, 2021) [hereinafter Palestine Decision], available online. ↩
51.
Vidmar, supra note 12, at 221. ↩
52.
Shaw, supra note 37, at 323–24. ↩
53.
Response, supra note 24, ¶ 24; see also Rome Statute, supra note 9, at Art. 19. ↩
54.
Shaw, supra note 23. ↩
55.
See Yaël Ronen, Recognition of the State of Palestine—Still Too Much Too Soon?, in Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford 229, 240 (Christine Chinkin & Freya Baetens eds., 2015), available online. ↩
56.
Id. at 246. ↩
57.
Shaw, supra note 23. ↩
58.
Id. ↩
59.
Rome Statute, supra note 9, at Art. 12. ↩
60.
Id. ↩
61.
Kovács Dissent, supra note 43, ¶ 271. ↩
62.
Id. ¶ 272. ↩
63.
Eugene Kontorovich, Israel/Palestine—The ICC’s Uncharted Territory, 11 J. Int’l Crim. Just. 979 (2013), paywall. ↩
64.
Id. at 990. ↩
65.
The G.A. seems to believe that “Palestine” has already been established as the Occupied Palestinian Territory. ↩
66.
Kovács Dissent, supra note 43, ¶ 372. ↩
67.
Vidmar, supra note 12, at 224. ↩
68.
Id. at 225. ↩
69.
Id. ↩
70.
Palestine Decision, supra note 50. ↩
71.
Vidmar, supra note 12, at 242. ↩
72.
Mutaz M. Qafisheh, What is Palestine? The De Jure Demarcation of Boundaries for the ICC’s Ratione Loci Jurisdiction and Beyond, 20 Int’l Crim. L. Rev. 908, 931 (2020), paywall. ↩
73.
John Quigley, The Palestine Declaration to the International Criminal Court: The Statehood Issue, 35 Rutgers L. Rec. 1 (2009), available online. ↩
74.
John Quigley, Palestine is a State: A Horse with Black and White Stripes is a Zebra, 32 Mich. J. Int’l L. 749, 757 (2011), available online. ↩
75.
Response, supra note 24, ¶ 53. ↩
76.
Id. ¶ 46. ↩
77.
Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip, UN Doc. S/1997.357 Annex (Sep. 28, 1995) [hereinafter Oslo II], available online. ↩
78.
Shaw, supra note 23. ↩
79.
Shaw, supra note 37, at 304. ↩
80.
Id. at 305. ↩
81.
Oslo II, supra note 77; see also Prosecution Request, supra note 9, ¶ 68. ↩
82.
Kovács Dissent, supra note 43, ¶ 306. ↩
83.
Shaw, supra note 23.
84.
Vidmar, supra note 12, at 224–25. ↩
85.
Prosecution Request, supra note 9, ¶ 137. ↩
86.
Convention on Rights and Duties of States Adopted by the Seventh International Conference of American States, 165 U.N.T.S. 19 (Dec. 26, 1933, entered into force Dec. 26, 1934) [hereinafter Montevideo Convention], available online. ↩
87.
James Crawford, Recognition of States and Governments, in Brownlie’s Principles of Public International Law 135 (9th ed. 2019) [hereinafter International Law], paywall, doi. ↩
88.
Montevideo Convention, supra note 86, at Art. 1; see also Prosecution Request, supra note 9, ¶ 140. ↩
89.
Montevideo Convention, supra note 86, at Art. 3. ↩
90.
Stefan Talmon, The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur?, 75 British Y.B. of Int’l L. 101 (2004), paywall. ↩
91.
International Law, supra note 87, at 136. ↩
92.
Id. ↩
93.
Id. ↩
94.
Id. ↩
95.
Id. ↩
96.
Talmon, supra note 90. ↩
97.
Hersch Lauterpacht, Recognition of States in International Law, 53 Yale L.J. 385 (1944), available online, doi; see also International Law, supra note 87, at 136. ↩
98.
Quigley, supra note 74, at 753. ↩
99.
International Law, supra note 87, at 137. ↩
100.
George Kyris, State Recognition and Dynamic Sovereignty, 28 Eur. J. of Int’l Rel. 287 (2022), available online. ↩
101.
Eva Erman, The Recognitive Practices of Declaring and Constituting Statehood, 5 Int’l Theory 129 (2013), available online, doi. ↩
102.
Prosecution Request, supra note 9, ¶ 138. ↩
103.
See, e.g., Neil Quilliam, Why the Time is Now for a Palestinian National Unity Government, Chatham House (Nov. 28, 2023), available online. ↩
104.
Kovács Dissent, supra note 43, ¶¶ 189, 190; see also Kontorovich, supra note 63, at 994. ↩
105.
Kontorovich, supra note 63, at 985. ↩
106.
Id. ↩
107.
Prosecution Request, supra note 9, ¶ 137. ↩
108.
Id. at 141. ↩
109.
Id. at 146. ↩
110.
Id. at 179. ↩
111.
Id. at 150.

(Bensouda does not address the territorial overlap of the self-determining entity of Palestine and the oPt). ↩
112.
Id. at 176. ↩
113.
Id. at 179. ↩
114.
Id. at 151. ↩
115.
Quigley, supra note 73, at 7. ↩
116.
Ronen, supra note 55, at 232. ↩
117.
William Thomas Worster, The Exercise of Jurisdiction by the International Criminal Court Over Palestine, 26 Am. U. Int’l L. Rev. 1153, 1173 (2011), available online. ↩
118.
Vidmar, supra note 12, at 243. ↩
119.
Id. at 203. ↩
120.
Id. at 213. ↩
121.
Id. at 209–10. ↩
122.
Id. at 210. ↩
123.
Id. ↩
124.
Id. ↩
125.
Ronen, supra note 55, at 235. ↩
126.
Id. at 237. ↩
127.
Id. at 240. ↩
128.
Id. at 240–41. ↩
129.
Id. at 241. ↩
130.
Worster, supra note 117, at 1171. ↩
131.
Prosecution Request, supra note 9, ¶ 103. ↩
132.
Quigley, supra note 73, at 6. ↩
133.
Id. at 7. ↩
134.
Yaël Ronen, Israel, Palestine and the ICC—Territory Uncharted but Not Unknown, 12 J. Int’l Crim. Just. 7, 11 (2014), paywall, doi. ↩
135.
Quigley, supra note 74, at 751. ↩
136.
Oslo II, supra note 77, at Art. VI. ↩
137.
Id. ↩
138.
Abraham Bell & Eugene Kontorovich, Palestine, Uti Possidetis Juris, and the Borders of Israel, 58 U. Ariz. L. Rev. 633, 635 (2016), available online. ↩
139.
Id. at 637 n.26. ↩
140.
Id. at 637 n.26, 637–38. ↩
141.
Id. ↩
142.
Prosecution Request, supra note 9, ¶ 180. ↩
143.
Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council 30 (Jul. 21, 2008), paywall. ↩
144.
Ian Hurd, Legitimacy, Power, and the Symbolic Life of the UN Security Council, 8 Global Governance 35 (2002), available online. ↩
145.
Christopher A. Thomas, The Uses and Abuses of Legitimacy in International Law, 34 Oxford J. Legal Stud. 729, 741 (2014), paywall, doi. ↩
146.
Id. at 742. ↩
147.
Hurd, supra note 143, at 43. ↩
148.
The seeming importance of G.A. Resolution 67/19 highlights the success of this legitimation. ↩
149.
Is the International Criminal Court Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online. ↩
150.
Id. ↩
151.
Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), available online, archived. ↩
152.
JP Leskovich, ICC Prosecutor Concludes First Ever Trip to Israel and Palestine as Palestine Rights Groups Allege Bias, Jurist, Dec. 4, 2023, available online. ↩
153.
See Vidmar, supra note 12. ↩

MelissaHernandez
52271
February 20, 2024
6:05 pm

The October 7th attacks launched what appears to be one of the worst humanitarian crises in the last decades. With more than 1,200 deaths in Israel, mostly civilians, killed in a single day, and about 240 hostages, this day is being characterized as “the deadliest day for Jews since the holocaust.”1 On the other hand, the Hamas attack triggered an Israeli response that has resulted in more than 11,000 deaths in Gaza, which would surpass the total number of Palestinian deaths in the last 15 years resulting from conflicts with Israel.2 While there is still confusion and uncertainty in the ongoing conflict, and the real number of dead and injured will not be fully known for a while, discussions about war crimes, crimes against humanity, genocide, proportionality, and accountability for both sides have already started. Because of the scale and cruelty that the world has seen in this conflict in the last 50 days, it is hard to think that there shouldn’t be some international condemnation of the acts committed by both parties.

Early in its Preamble, the Rome Statute recognizes that throughout history people have been victims of “unimaginable atrocities that deeply shock the conscience of humanity.”3 The Statute’s Preamble continues to assert that the state parties of the Statute are determined to end impunity for the perpetrators of these crimes and thus help deter future atrocities. Under a policy consideration, it would be ideal for the International Criminal Court to prosecute crimes committed in this conflict to hopefully bring justice to the countless victims who are suffering. However, as a legal instrument, it is governed by the Rome Statute, and its jurisdiction is thus limited in more than one way.4 When calling it a legal instrument, by no means do I intend to ignore the entrenched political influences present in the Court’s continued functioning. In fact, through this comment, the political influences are discussed and considered when answering the question presented. Additionally, there are also questions of admissibility because the Court functions as a complementary court to the states’ judicial systems, and so there need to be considerations about the gravity of the crimes, the interest of the victims, and the interest of justice; this comment will mainly focus on the Court’s jurisdiction in the Palestine/Israel situation.5

This comment begins by explaining the ICC’s overall general jurisdiction following the limits set by the Rome Statute. Second, it explains the previous rejection by the Court to open an investigation in Palestine under the mandate of Luis Moreno-Ocampo. Third, it goes over the process of opening the current investigation into the situation of Palestine. This includes the determination of the prosecutor’s preliminary investigation and the opinion released by the Pre-Trial Chamber which justified the Court’s jurisdiction and more specifically determined the specific territory attributed to Palestine. Further, this section of the comment includes the effect of the Oslo Accords in this process and the choice the Chamber made in following the constitutive theory of statehood in its determination. Fourth, it describes the current referral of the situation after the October 7th attacks, the Court’s lack of influence to affect the conflict in the present, and the need for political action to put an end to the violence. Finally, it presents Universal Jurisdiction as a final last resort option in case it is determined that the Court had no jurisdiction.

International Criminal Court’s Overall Jurisdiction

The question presented is whether and to what extent the International Criminal Court has jurisdiction over the situation of the Israel/Palestine conflict. For this to be answered there needs to be an analysis of each of the jurisdictional categories that come into play: temporal, subject matter, and territorial. Under the Rome Statute, Article 11 governs temporal jurisdiction.6 Under this Article, the Court has jurisdiction over crimes committed after the entry into force of the Statute.7 This means that the Court only has jurisdiction after July 1st, 2002.8 However, for states that become a party to the Statute after this date, the Court only has jurisdiction over crimes committed after the entry into force of the Statute for that State, unless the State makes a declaration under Article 12(3).9 As for its subject matter jurisdiction, the Court is limited to prosecuting four types of crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.10

Finally, the Territorial jurisdiction, the Court has jurisdiction over a crime on a state party territory or on the territory of a state that has accepted jurisdiction, pursuant to Article 12(3).11 The Court also has jurisdiction over crimes committed by nationals of a state party or a state that has accepted the jurisdiction of the Court.12 Additionally, the Court can exercise its jurisdiction when a situation in which at least one crime referred to in Article 5 appears to have been committed is referred to the Prosecutor by a state party following Article 14 of the Statute.13 The Court can also exercise its jurisdiction when the Security Council of the United Nations refers to the Prosecutor a situation in which at least one crime referred to in Article 5 appears to have been committed.14 Moreover, the Court can exercise jurisdiction when the Prosecutor has initiated an investigation in a situation where Article 5 crimes appear to be committed. This is called a proprio motu investigation, which needs to pertain to crimes allegedly committed on the territory or by a national of either a state party or a state that has accepted jurisdiction.15 Again, although admissibility is a different question it is important to keep in mind that the Court is set up to be a complimentary court and that it will only exercise jurisdiction when the State which has jurisdiction over it is “unwilling or unable genuinely” to carry out the investigation or prosecute.

The Court’s Past Refusal to Open an Investigation

It is not the first time that the ICC has been presented with the question of jurisdiction over the Palestine/Israel conflict. In April 2012, then ICC Prosecutor Luis Moreno-Ocampo announced it would not act on the Palestine Authority’s declaration recognizing ICC’s jurisdiction under Article 12(3).16 At the time the reasons behind this decision were that under Article 12 a “State” can accept jurisdiction to the Court. The issue was then, who defined what was a “state” for the purpose of Article 12 of the Statute.17

Under the process of state accession to the Rome Statute, the declaring state must present the instrument of accession to the Secretary-General of the United Nations, therefore it is this entity that has the competence to determine the term “State” in the first instance.18 However, in situations where it is controversial or unclear if the applicant constitutes a “State,” the Secretary-General follows or seeks the General Assembly’s directives on the matter which can be reflected in its resolutions.19

In this case, the Prosecutor has been informed that Palestine has been recognized as a State in bilateral relations by some international organizations, including United Nations bodies, and more than 130 governments. However, at the time, the General Assembly had only granted “observer” status to Palestine.20 Additionally, Palestine had submitted an application for admission to the United Nations as a Member State but the Security Council had not yet made a recommendation regarding the application.21 Overall, the Office of the Prosecutor did state that allegations of crimes committed in Palestine could be considered in the future if the competent organs of the United Nations or the Assembly of States Parties of the Rome Statute resolved the legal issue relevant to an assessment under Article 12, or if the Security Council referred the situation under Article 13(b) to the Court, thus giving it jurisdiction.22

This past analysis of the situation, which relies heavily on decisions made by the United Nations, brings up questions about the independence of the ICC in the larger scheme and the political bias given that the U.N. is a political body. Amnesty International said that the denial of jurisdiction by the ICC prosecutor meant denying justice to the victims of crimes allegedly committed in the Gaza war both on the Israeli and the Palestinian side.23 The decision by the ICC prosecutor meant Palestinian and Israeli victims of crimes allegedly committed during the Gaza war seemed likely to be denied justice. Justice is one of the primary principles pillars of the Court, as pointed out by its Preamble.24 Additionally, as the head of the human rights group’s International Justice campaign Marek Marczynski said:

This dangerous decision opens the ICC to accusations of political bias and is inconsistent with the independence of the ICC. It also breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges.25

The Court’s Current Open Investigation in the Situation in Palestine

This next consideration of the Court’s jurisdiction over the Situation in Palestine was primarily influenced by the change of status of Palestine in the G.A.. However, it still followed a careful process of examination from the Prosecutor and the Pre-Trial Chamber I.

After Ocampo left the office of the Prosecutor in 2012, Fatou Bensouda started her term in office where she opened an investigation on the Situation in Palestine. In November 2012, the General Assembly of the United Nations voted by an overwhelming majority to accord Palestine “Non-Member Observer State” status in the United Nations.26 The resolution passed with 138 votes in favor, 41 abstentions, and 9 votes against, which included Israel and the United States. One of the statements of the Israel representative emphasized that this decision was a one-sided resolution that did not advance peace in the region.27 He proceeded to state that there was only one route to Palestine statehood, which had no shortcuts.28 To him, this route was direct negotiations between Jerusalem and Ramallah, and that as long as President Abbas preferred “symbolism over reality,” there would be no hope of peace within reach.29 Regardless of the opposition presented by Israel or the other eight countries who voted against this resolution, Palestine’s recognition as a non-member observer state changed its international standing.

Following this resolution, in 2015, Palestine presented its instrument of accession to the Rome Statute to the United Nations Secretary-General.30 This instrument was accepted since it was the practice of the Secretary-General of the U.N. to follow the G.A.’s determination as to whether an entity was a State.31 Moreover, Palestine presented a declaration under Article 12(3) to the Registrar of the Court which was accepted as well.32 This resulted in Palestine becoming the 123rd State Party to the Rome Statute on April 2015.33 Moreover, in 2018 Palestine referred to the Prosecutor the situation since June 13th, 2014 with no end date.34 This triggered a preliminary examination by the Prosecutor who concluded in 2019 that all the statutory criteria under the Rome Statute for the opening of an investigation had been met.35 During this process, the Office of the Prosecutor explained that its focus on the inquiry into Palestine’s ability to accede to the Rome Statute was a question of Palestine’s status in the United Nations, given that the Secretary-General of the U.N. has the role of treaty depositary of the Statute.36 This decision by the Prosecutor further confirmed that the Court recognized Palestine as a State Party for legal purposes and that it considered it had territorial jurisdiction.37 Nonetheless, Bensouda announced that due to the “highly contested legal and factual issues” of this situation, she had requested from the Pre-Trial Chamber a jurisdictional ruling on the scope of the territorial jurisdiction of the ICC.

In this ruling the Pre-Trial Chamber considered two issues. First, whether Palestine can be considered “the State on the territory of which the conduct in question occurred” within the meaning of Article 12(2)(a) of the Statute.38 Second, the specific delineated territorial jurisdiction of the Court in this situation.39

First Issue

On the first issue, the Chamber states that following the Vienna Convention on the Law of Treaties, the interpretation of Article 12(2)(a) of the Rome Statute should be interpreted in good faith following the ordinary meaning to be given to its terms in the light of the object and purpose of the Statute.40 However, the word “State” is not defined by the Statute, its Rules of Procedure and Evidence, or the Court’s Regulations.41 Consequently, the Chamber follows with a textual and structural reading of this Article that ultimately allows it to determine that the Court has jurisdiction over the situation. The Chamber points to the word “following” in Article 12(2) to state that the reference to “State Parties to this Statute” is connected with the reference to “the States on the territory of which the conduct in question occurred” in Article 12(2)(a).42 To the Chamber, this means that the reference to “State” in 12(2)(a) ultimately shall be interpreted as referring to a State Party of the Statute.43 The Chamber then makes it very clear, that this doesn’t require a determination as to whether the entity in question fulfills the prerequisites of statehood under general international law.44 This seems to follow the Chamber’s decision that it is not necessary to apply subsidiary sources of law such as principles and rules of international law.45

With this, I see various issues. First, taking the ordinary meaning of the word “State” under Article 12(2)(a), it is equally possible to me that it isn’t meant to refer to a “State Party.” The absence of the word “Party” in Article 12(2)(a) can be a deliberate choice to indicate a different term than the one referenced in Article 12(2). If it meant to refer to the same term, wouldn’t it use the same words? Furthermore, the reading of Article 12(2) itself can be interpreted to refer to “State” under the view of general international law when it says that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute.” This doesn’t reference “State Parties” but references “States” that are parties to the Statute, meaning that there might be some “States” that aren’t parties to the Statute. Therefore, this would require two different considerations. One, inquiring if the entity is a State, and second if the entity is a State that was a Party to this Statute. The ordinary analysis that would follow in this two-tiered inquiry would be to look for the definition of “State” under the Rome Statute. As the Chamber points out, there is none. Under Article 21(1)(b), this should bring the meaning of the word “State” under principles of international law.

Furthermore, the Chamber states that its decision is coherent with the other provisions of the Statute. Article 125(3) provides that “The Statute shall be open to accession by all States.” The Chamber makes clear that there are no additional criteria to the accession to the Statute beside this one.46 At the end of the day, it points out that the key is that the G.A. through its resolutions finds an entity to be a State even if it doesn’t fall within the provisions of the Vienna Convention (the Vienna Formula).47

Again, lacking any definition for the word “State,” the Vienna Formula presented another opportunity for the Chamber to adhere to some existing international law principles for its analysis. The Vienna Formula was developed to overcome uncertainties in cases where treaties were open to “all States.”48 This is the language chosen by Article 125 of the Statute, “the Statute shall be open to accession by all States.”49 So it follows that this would be a perfect situation for using the Vienna Formula. This formula permits participation in a treaty by Member States of the U.N., parties to the Statute of the International Court of Justice, State Members of specialized agencies or of the International Atomic Energy Agency, and sometimes, by any other State invited by the General Assembly to become a party.50 Under this formula, Palestine would be able in legal capacity to participate in international treaty regimes through its UNESCO membership.51 However, it is important to note that the Viena formula is not about the substantive law of statehood.52 Therefore, it does not create states or clarify international legal status, it is merely a procedural criterion.53 This would be an even bigger incentive for the Court to use the Vienna Formula. It would allow the statehood determination by the Chamber as a procedural determination and keep the Court away from making a substantive determination that would be beyond the Statute’s object and purpose, which is what the Chamber is concerned with. Furthermore, the Chamber is already following the Vienna Convention for some of its analysis, so why not follow this “formula” as well? Can the Chamber, and for that purpose the Court, pick and choose what parts of the Vienna Convention on the Law of the Treaties to follow?

In addition, the Chamber also presents an analysis of the accession process of Palestine to the Statute and how since this process was followed correctly the Chamber could not question its result. The Chamber argues it has no authority to review the outcome of an accession procedure based on whether Palestine did or did not fulfill the requirements for statehood under general international law because it has no authority to review the outcome of the accession procedure at all. It also has no authority to challenge the validity of the G.A. resolution that made Palestine a non-member observer state. The Chamber believes this is further evidence that the Court had jurisdiction.54

Moreover, the Chamber points to the events that followed the accession of Palestine, where both Palestine and other State Parties have acted in accordance with its accession. First, no State Party opposed the Palestine accession aside from Canada. Additionally, the President of the Assembly of States Parties greeted Palestine in a welcoming ceremony.55 Moreover, Palestine has been included in the list of State Parties’ delegations in Assembly of State Parties, it has contributed to the Court’s budget and it was elected from the members of the Asia-Pacific Group to the Bureau of the Assembly of States Parties for the seventeenth to nineteenth sessions.56 Palestine also requested items to be included in the provisional agenda of the seventeenth session of Assembly of State Parties, which is a right held only by State Parties.57 Finally, the Chamber points out that there is a dispute settlement mechanism that allows parties to challenge the automatic entry into force of the Statute under Article 119(2) but no claims have been brought up either.58

I agree that Palestine and the Assembly of State Parties have acted accordingly with the accession of Palestine to the Rome Statute. However, this deviates from the real question, which is whether Palestine should have been allowed to become a State Party in the first place. On one hand, the Chamber’s analysis does show a legal avenue for challenging the entry process to the Rome Statute, under Article 119, which would work as a check on the accession process. The reason behind showing this possible legal avenue is to show that it exists and was not used therefore, it is proof the rest of the State Parties agree that Palestine could access the Statute. The discussion on the actions of Court officials, State Parties, and Palestine just seems to show political support for the acceptance of Palestine as a Party of the Statute once again. These considerations although important are focused on the Chamber’s efforts to provide evidence that there is an implicit recognition in everyone’s actions that Palestine can be a State Party to the ICC. This opens up a question of how important is political recognition in this process. Should this consideration be a strictly legal one? And if so, would it not matter if others supported the accession or not? The Chamber mentions a couple of times the effort of the ICC to be an independent body that is trying to stay away from political debates. However, the importance given to the political recognition itself seems to draw the ICC closer to a body that defers largely to the political considerations of its members.

Moreover, because it was clear that the process of accession was done according to what the law requires, the Chamber rests its next argument on the principle of effectiveness.59 Essentially, the Chamber says that if Palestine is a State Party, there should be no limit on the Statute’s inherent effects over it.60 Given that the Statute doesn’t present any exemption that applies in this case to the jurisdiction of the Court, and Article 20 of the Statute prohibits reservations, once Palestine was considered a State Party all the provisions of the Rome Statute entered into force.61 The Chamber refers to the Court’s previous acceptance of the effectiveness principle in the object and purpose of the Statute, where all provisions are to be interpreted to give the Statute its full meaning and where any interpretation that would nullify or render inoperative a provision of the Statute shall be rejected.62 The Chamber argues that in this case, taking “State” in Article 12(2)(a) to mean a State for purposes of general international law, would exceed the object and purpose of the Statute, to establish individual criminal responsibility, and render most of the provisions of the Statute null for Palestine.63

Once more, this argument makes sense, especially for a treaty that allows no reservations. It is understandable and even desirable for all state parties to have access to all rights, and for provisions to be read and interpreted in a way that doesn’t render other provisions inoperative because this is probably what is closer to the drafter’s intent. However, it diverges from the question of whether Palestine fulfilled the needed requirements to become a State Party in the first place. After all, even if the Chamber points out that there existed no other additional requirements besides Article 125(3), the Chamber cannot ignore that embedded within this article is the requirement that those who accede to the Statute are, in fact, States.

Ultimately, the Chamber’s opinion asserts that the Rome Statute insulated the Court from making the “political” determination of statehood under international law, by having it rely on the determination made by the United National General Assembly, and on the accession procedure.64 The Chamber further accepted that it is not competent to determine matters of statehood that would bind the international community.65 This analysis shows the huge deference toward the United Nations General Assembly’s decision of statehood without much regard for the best known legal international standard for statehood, the Montevideo Convention on the Rights and Duties of the States. While I understand the need for the Chamber to stay within the object and purpose of the Statute and not make decisions it has no authority to make, there are a lot of unanswered questions in its opinion. Furthermore, the overall argument it is trying to support seems to be circular. Essentially, to be a State Party an entity would first have to be a State, but the analysis presented was that Palestine was a State Party because the accession process was done procedurally right and so therefore it was a State. Should there be no consideration within the Court as to the reality of the statehood of its members? Is the ICC truly an independent legal body when it is dependent on the decision of the United Nations as to something so fundamental as its member composition without much available afterward review or say?

Second Issue

As for the second issue at review, the Chamber is clear to say that its decision is neither adjudicating a border dispute nor prejudging the question of any future borders.66 Here, the Chamber finds that the delimitation of the territory of Palestine to define the Court’s territorial jurisdiction is also indicated by the accession procedure. According to the Resolution of the G.A. that gave “non-member observer State” status to Palestine, the Palestinian people have the right to self-determination and independence on their State of Palestine on the Palestine territory occupied since 1967.67 Based on this the Chamber finds that the Court’s territorial jurisdiction in the Situation in Palestine extends to Gaza and the West Bank, including East Jerusalem.68

The Chamber added that this determination followed Article 21(3) of the Rome Statute as well. This Article provides that the interpretation and application of the Statute, including the Court’s jurisdiction, must be consistent with internationally recognized human rights.69 The right of self-determination has been identified in various international treaties and by the International Court of Justice. Additionally, it has been recognized as having particular importance because its realization is an essential condition for the effective guarantee of individual human rights.70 In the Chamber’s view, the right to self-determination amounts to an “internationally recognized human right” that falls under Article 21(3).71 The Chamber states that in this case, Palestines’ right of self-determination has been identified by the International Court of Justice and the G.A., more specifically regarding the occupied territory since 1967.72

While this analysis makes sense to me, the foundation on which it rests seems flawed. I think that the ICC deciding a territory over which it may exercise its jurisdiction essentially is creating a legal precedent that can later be referenced as to what the Palestine territory is. Saying that this determination doesn’t adjudicate a border dispute nor prejudices the question of any future borders will not prevent this decision to be bidding in some way. While the Chamber is trying to keep the determination within the object and purpose of the Statute, the reality is that the ICC’s decisions do have an effect on the international legal system and in the States under its jurisdiction. Charges are filed, arrest warrants are issued and investigations are essentially done under the territory of a specific State. Because of this, this determination should be done carefully and perhaps in a more strict legal manner.

Oslo Accords

On a final consideration, the Chamber discusses the implications of the Oslo Accords in the jurisdiction of the ICC. In the Oslo II Agreements, the Palestine Authority agreed that its territorial and functional jurisdiction would not apply to Israelis.73 As a consequence of this, some observations were submitted to the Chamber arguing that Palestine could not have delegated part of its jurisdiction to the Court. Others argued that the Oslo Agreements did not affect the jurisdiction of the Court but might affect matters of cooperation with the Court instead.74 The Chamber alludes to Articles 97 and 98 of the Rome Statute where a State that identifies a problem possibly preventing it from executing a request to cooperate or assist the Court can consult with the Court.75 Additionally, these Articles also mention that the Court may not proceed with requesting assistance from a State when this would require the State to act inconsistently with its obligations under international agreements it has signed.76 Ultimately, the Chamber finds that this question of jurisdiction is not affected by the Oslo Accords and that their effect may be raised by interested States in relation to the admissibility of a case.77

I agree with this interpretation of the Oslo Accords because, if the Rome Statute was not to be signed at all by States with conflicting obligations under a previously signed agreement, then Articles 97 and 98 of the Statute would be rendered null. Their existence is evidence that a State can agree to be under the Court’s jurisdiction and that, if during an investigation process, its cooperation or assistance would make it act inconsistently with other legal obligations, then it can seek refuge under these two Articles.

Legal Determination

Overall, in its current determination on jurisdiction, the Chamber defers completely to the United Nations for a determination on statehood for purposes of the Rome Statute. The underlying reason for this is a sentiment that the Chamber doesn’t have the authority to make decisions beyond its object and purpose of individual criminal liability. Although I agree with this and understand that the Chamber feels that it cannot make territorial delimitations and decisions on statehood beyond those of the United Nations, I argue that ultimately it is deciding on this issue, and its decision will influence the conversation around Palestine’s statehood in the international community in the future.

Furthermore, the Chamber at one point states that because statehood under international law is such a complex and political issue, the Court is trying to distance itself from this process to remain independent. It states that once the accession process is completed, beyond an Article 119 dispute, there would be no other mechanism to question or review statehood inside the ICC.78 And while I understand that as an independent legal body, it is trying to stay away from political decisions, leaving this statehood and territorial decision to the United Nations the ICC is accepting a political determination to the question overall, as the United Nations depends “on the political will of its Member States to have its decisions put into action.”79

As the best-known standard for statehood, the Montevideo Convention on the Rights and Duties of States (Montevideo Convention) provides deceptively simple criteria.80 Under this Convention a State should possess a permanent population, a defined territory, a government; and the capacity to enter into relations with other states.81 Because of its ambiguity and the flexibility with which it has been applied, those seeking to apply it must choose between two primary theories of statehood.82

Under the declaratory theory, the standards under the Montevideo Convention are enough to fulfill the criteria of statehood.83 Political recognition by other states should not prevent and newly formed state from benefiting from its international rights.84 Challengers of this theory claim that it undermines the power of recognition as an element that would deter would-be states from having an international personality and realistically being able to enforce its rights.85 On the other hand, the constitutive theory states that the act of recognition is what leads to the creation of the state.86 Challengers of this theory state it fails to identify more clear standards as to how many states are required to grant legal recognition of a state.87

In the ICC’s case, it chooses to use the constitutive theory, and the shift from Ocampo’s denial of opening an investigation to Bensouda’s acceptance and the Chamber’s confirmation of the Court’s jurisdiction in Palestine are evidence of this. Nothing drastically changed in the composition of the real territory, population, and government between the denial and the acceptance, as the Office of the Prosecutor notes, the decision that triggered the change within the Court was the United Nations General Assembly (G.A.) Resolution that granted “non-member observer State” status to Palestine.

The G.A. is composed of 193 representatives, one for each of the U.N. members. Consequently, it is not exactly representative of the world’s population.88 However, it is probably the biggest forum where states come together and voice their opinions about all different aspects of the international system. We could say that a resolution where 138 states voted to recognize Palestine as a State is precisely what the constitutive theory means when it comes to recognition for the formation of a State. Nonetheless, because of its ambiguous standards, this might not be the case. If recognition by others is what matters, couldn’t the recognition requirement mean that the majority of the population in the world needs to recognize the entity as a State? And if this is the case does the resolution by the G.A. represent the majority of the world’s population? Or does recognition refer that the most powerful states in the world need to recognize the entity as a State? And if so, would they all need to recognize Palestine? Or only a majority of them?

China, France, Russia, the United Kingdom, and the United States are the world leaders as they are the five permanent members of the S.C.. In the resolution passed by the G.A. the United States was one of nine votes against it.89 Following this vote, the representative of the United States said that they “two states for two people” outcome but that the question of Palestine statehood needed to be negotiated on the ground with Israel. She also argued that this was an “unfortunate and counterproductive” resolution that was an obstacle to peace. So although the United States voted against making Palestine a non-member state, the afterward explanation seems to suggest that their position isn’t that the U.S. will never recognize a Palestine State, but rather that they oppose this way of conferring statehood. On the other hand, the Russian Federation voted in favor of the resolution and has recognized the declaration of Palestinian statehood since 1988.90 France also voted in favor and has had a long history of promoting the two-state solution that would call for the international recognition of a Palestine State.91 As for China, it also voted for the resolution and although it had announced its recognition of the State of Palestine as early as 1988 and established diplomatic relations with it, the representative for the country referred to the adoption of the resolution as “another positive step in Palestine’s progress towards statehood.”92 Finally, the United Kingdom abstained from voting and stated later its concern about the action taken by the assembly as it would hinder negotiations to save a two-state solution.93 Ultimately, even if all five states had voted in favor of the resolution, which they didn’t, it is clear by each of their statements after the vote that figuring out the real opinion or reason behind a state’s action can be harder than it looks and may not always lead to a straight forward answer. Regardless, only three out of the five world powers voted in favor of the resolution, so if recognition under the constitutive theory refers to recognition by the most powerful countries, the ones that have the most political power, then Palestine would still have a chance of passing muster.

In situations where only part of the legal community recognized the entity’s statehood, self-determination comes into play.94 As a principle of international law, self-determination is the ability of a country to determine its own statehood by making its own government and controlling its own population.95 A focus on self-determination would be consistent with Article 21(3) of the Rome Statute and would tip the scale towards Palestine’s statehood.96

On the other hand, if the analysis was done under the declaratory theory, which would require a more formal application of the Montevideo Convention, Palestine would run into more trouble in asserting its statehood.97 According to a report by the Office of International Religious Freedom of the U.S. Department in 2022, there was a five million Palestinean population living in the Gaza Strip and the West Bank.98 This would fulfill the element of the permanent population of the Convention. For the element of “defined territory,” Palestine would start to run into some trouble.99 While some argue that the Gaza Strip and the West Bank are Palestine territories, others claim this territory belongs to Israel.100 Furthermore, essentially there is no single clear entity that has effective control and exclusive authority over the previously mentioned territories.101

According to the Oslo Accords of 1995, the disputed territory is now divided into three areas; areas A, B, and C.102 Area A constitutes eighteen percent of the West Bank and Gaza is under Palestine administrative and police control.103 Area B is twenty two percent of the West Bank and is administered by the Palestinian Authority which shares security control with Israel.104 Finally, Area C covers sixty percent of the West Bank and is administered by Israel.105

Furthermore, the terrorist organization Hamas administers the Gaza Strip.106 As for the fourth element of the Montevideo Convention, Palestine would be able to fulfill it with the G.A. resolution where it got the majority of nations to recognize its statehood.107 Regardless of the theory used to analyze Palestine’s statehood, it would run into some issues in both of them. However, Palestine does have a better chance of being considered a state if the constitutive theory is followed as seen by the Chamber’s acceptance of the Court’s jurisdiction over the situation in Palestine.

Today

The determinations made by the Chamber were made in February of 2021 and since then a lot more violence has taken place. After the attacks of October 7, 2023, the Office of the Prosecutor received a referral under Articles 13(a) and 14 of the Rome Statute by the Republic of South Africa, the People’s Republic of Bangladesh, the Plurinational State of Bolivia, the Union of the Comoros and the Republic of Djibouti.108 After this, Prosecutor Karim Khan confirmed that his office is currently conducting an investigation into the Situation in the State of Palestine which encompasses alleged crimes that may amount to those under the Rome Statute committed since June 13th, 2014 in the Gaza Strip and the West Bank, including East Jerusalem.109 He further reaffirmed that the investigation covers the attacks of October 7th and the hostilities and violence after them.110 During his statements, he also called on all State Parties to the Rome Statute to provide the office with full cooperation and to demonstrate that the States’ political commitments to the principles of the Statute matched with their commitment to provide the resources needed by the Office to fulfill its obligations.111

This call upon the State Parties brings me to my next point. Does the acceptance of jurisdiction by the Court change anything in the middle of the conflict? Does it help? Does it have lasting and crucial effects on violent conflicts? Or do States still need to be a part of the solution? While the ICC provides for a legal consequence to crimes committed and it helps further international justice it is unclear a lot of times how it can provide further peace. The day after Prosecutor Khan made his statements on the current investigation a U.N. school in Gaza that was being used as shelter got hit.112 And although the source of the attack is unknown the reality is that violence has continued. The possible convictions or arrest warrants by the ICC don’t seem to have deterred attacks or further civilian casualties which have been sixty-one percent of the total death toll.113 This is much higher than the average civilian toll in all the conflicts around the world during the 20th century.114 For all we know, if perpetrators of crimes know that prosecutions have been initiated they might have no incentive to stop committing further violence. Moreover, this shows that even if the ICC has jurisdiction, situations like the one in Palestine and Israel will be much more impacted by the political actions of other states. Indisputably, the United States’ diplomatic and military support to Israel has played enormous support for the continuation of the violence. Most recently the United States vetoed a draft resolution presented in the Security Council which called for an “immediate humanitarian ceasefire.”

Universal Jurisdiction

Even if the decision was that the ICC didn’t have jurisdiction over the Palestine/Israel conflict, there is always the possibility of having these crimes be legally accounted for through Universal Jurisdiction.115 However, it is important to admit the short comings of prosecuting through universal jurisdiction.116 Because this process relies on national judicial organs, these courts and prosecutors might not have the competence nor the incentives to consider the full harms of the victims, they might be poorly positioned to assess the interest of the victims and might end up causing harm in the prosecutorial process.

Conclusion

The question of jurisdiction over Palestine has been discussed for many years. Although it had been. Although from a policy and humanitarian perspective there is no question about if those responsible for the crimes and atrocities committed should be held internationally and legally responsible, the legal question under the ICC Statute is more complicated. On one hand, the ICC had previously rejected jurisdiction over the fact that Palestine was not considered a state but after the G.A. resolution Palestine was granted “Non-Member Observer State” status. After a preliminary examination by the prosecutor and an opinion drafted by the Pre-Trail Chamber, the ICC confirms it has jurisdiction over the Palestine situation, more specifically over the Palestine territory occupied since 1967 which extends to Gaza and the West Bank, including East Jerusalem. While the Chamber does a detailed analysis of their reasoning for Palestine’s jurisdiction the ultimate two arguments rely on the deference to the United Nations on what constitutes a State and on the lack of authority to interfere with the accession process once done correctly. The Chamber’s view aligns with the constitutive analysis of statehood but greatly differs from the declaratory theory. Its analysis presents various unanswered questions and seems to follow a circular argument when presenting the connection between being a “State” and being a “State Party.” Nonetheless, this position taken by the Court probably represents the ICC’s belief that the best way to uplift a population in dire need of legal protection is to emphasize its right to statehood.117

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

1.
Joanna Tan, Charts Show a Stark Difference in the Human Cost of Israeli–Palestinian Conflicts Over the Years, CNBC, Nov. 12, 2023, available online. ↩
2.
Id. ↩
3.
Rome Statute, Preamble. ↩
4.
Id. Art. 4. ↩
5.
Id. Arts. 1, 7, 53(1)(c). ↩
6.
Id. Art. 11. ↩
7.
Id. ↩
8.
Id. ↩
9.
Id. ↩
10.
Id. Art. 5. ↩
11.
Id. Art. 12. ↩
12.
Id. ↩
13.
Id. Art. 13. ↩
14.
Id. Art. 13(b). ↩
15.
Id. Art. 15. ↩
16.
Office of the Prosecutor, ICC, Situation in Palestine (Apr. 3, 2012) [hereinafter 2012 Decision], available online. ↩
17.
Id. ¶ 5. ↩
18.
Id. ↩
19.
Id. ↩
20.
Id. ↩
21.
Id. ↩
22.
Id. ¶ 8. ↩
23.
ICC Prosecutor Rejects Palestinian Recognition, BBC News, Apr. 4, 2012, [hereinafter Prosecutor Rejects Recognition], available online. ↩
24.
Rome Statute, supra note 3, at Preamble. ↩
25.
Prosecutor Rejects Recognition, supra note 23. ↩
26.
Press Release, G.A., GA/11317, General Assembly Votes Overwhelmingly to Accord Palestine “Non-Member Observer State” Status in United Nations (Nov. 29, 2012) [hereinafter Palestine is Accorded “Non-Member Observer State” Status], available online. ↩
27.
Id. ↩
28.
Id. ↩
29.
Id. ↩
30.
Press Release, ICC, The Prosecutor of The International Criminal Court, Fatou Bensouda, Opens a Preliminary Examination of the Situation In Palestine (Jan. 16, 2015) [hereinafter Bensouda Opens Preliminary Examination], available online. ↩
31.
Id. ↩
32.
Id. ↩
33.
State of Palestine, ICC, available online (last visited Dec. 10, 2023); Bensouda Opens Preliminary Examination, supra note 30. ↩
34.
Id. ↩
35.
Id. ↩
36.
Bensouda Opens Preliminary Examination, supra note 30. ↩
37.
Id. ↩
38.
Situation in the State of Palestine, ICC-01/18-143, Decision on the “Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,” ¶ 87 (ICC PTC I, Feb. 5, 2021), available online. ↩
39.
Id. ↩
40.
Id. ¶ 91; Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩
41.
Situation in the State of Palestine, supra note 38, ¶ 92. ↩
42.
Id. ¶ 93. ↩
43.
Id. ↩
44.
Id. ↩
45.
Id. ¶ 88; Rome Statute, supra note 3, at Art. 21(b). ↩
46.
Situation in the State of Palestine, supra note 38, ¶ 97. ↩
47.
Id. ¶ 96. ↩
48.
Final Clauses of Multilateral Treaties: Handbook, 15, UNTC (2003), available online. ↩
49.
Rome Statute, supra note 3, at Art. 125. ↩
50.
Vienna Convention, supra note 40, at Art. 81. ↩
51.
Jure Vidmar, Palestine v United States: Why the ICJ Does not Need to Decide Whether Palestine is a State, EJIL Talk (Nov. 22, 2018), available online. ↩
52.
Id. ↩
53.
Id. ↩
54.
Situation in the State of Palestine, supra note 38, ¶ 99. ↩
55.
Id. ¶ 100. ↩
56.
Id. ↩
57.
Id. ↩
58.
Id. ¶ 102. ↩
59.
Id. ↩
60.
Id. ↩
61.
Id. ¶ 102. ↩
62.
Id. ¶ 105. ↩
63.
Id. ¶ 106. ↩
64.
Id. ¶ 108. ↩
65.
Id. ¶ 108. ↩
66.
Id. ¶ 114. ↩
67.
Id. ¶ 116. ↩
68.
Id. ¶ 118. ↩
69.
Id. ¶ 119. ↩
70.
Id. ¶ 120. ↩
71.
Id. ¶ 122. ↩
72.
Id. ¶ 123. ↩
73.
See Report of the Secretary-General, UN Doc. S/1997.357, Letter dated 27 December 1995 from the Permanent Representatives of the Russian Federation and the United States of America to the United Nations addressed to the Secretary-General (May 5, 1997), available online; Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip, S/1997.357 Annex, Art. XVII(2)(c) (Sep. 28, 1995) [hereinafter Oslo II], available online. ↩
74.
Situation in the State of Palestine, supra note 38, ¶ 126. ↩
75.
Id. ¶ 127. ↩
76.
Id. ↩
77.
Id. ¶ 129. ↩
78.
Id. ¶ 108. ↩
79.
UN Structure, Model UN, available online (last visited Dec. 10, 2023). ↩
80.
Montevideo Convention on the Rights and Duties of States (Dec. 26, 1933, entered into force Dec. 26, 1934) [hereinafter Montevideo Convention], available online. ↩
81.
Id. Art. 1. ↩
82.
Tanvi Bhargava & Rebecca Cardoso, An Examination of Palestine’s Statehood Status through the Lens of the ICC Pre-Trial Chamber’s Decision and Beyond, N.Y.U. J. Int’l L. & Pol. (Oct. 20, 2021), available online. ↩
83.
Id. ↩
84.
Id. ↩
85.
Id. ↩
86.
Id. ↩
87.
Id. ↩
88.
Julian Borger, What is the Point of the UN General Assembly?, The Guardian, Sep. 23, 2019, available online. ↩
89.
Palestine is Accorded “Non-Member Observer State” Status, supra note 26. ↩
90.
Id. ↩
91.
Id. ↩
92.
Id. ↩
93.
Id. ↩
94.
Rome Statute, supra note 3. ↩
95.
Id. ↩
96.
Id. Art. 21. ↩
97.
Montevideo Convention, supra note 80. ↩
98.
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. ↩
99.
Montevideo Convention, supra note 80. ↩
100.
Id. ↩
101.
Id. ↩
102.
What are Area A, Area B, and Area C in the West Bank?, Anera, available online (last visited Dec. 9, 2023). ↩
103.
Id. ↩
104.
Id. ↩
105.
Id. ↩
106.
Montevideo Convention, supra note 80. ↩
107.
Id. ↩
108.
Karim A. A. Khan, ICC Prosecutor, Statement on the Situation in the State of Palestine: Receipt of a Referral From Five States Parties (Nov. 17, 2023), available online.. ↩
109.
Id. ↩
110.
Id. ↩
111.
Id. ↩
112.
Chris Lau, Andrew Raine, Lauren Said-Moorhouse, Thom Poole, Christian Edwards, Adrienne Vogt & Tori B. Powell, November 18, 2023 Israel–Hamas War, CNN, Nov. 19, 2023, available online. ↩
113.
Julian Borger, Civilians Make Up 61% of Gaza Deaths From Airstrikes, Israeli Study Finds, The Guardian, Dec. 9, 2023, available online. ↩
114.
Id. ↩
115.
Jack Goldsmith & Stephen D. Krasner, The Limits of Idealism, 132 Daedalus 47 (2003), available online. ↩
116.
Id. ↩
117.
Montevideo Convention, supra note 80. ↩

Joan Komolafe
52272
February 20, 2024
6:15 pm

What is the Threshold of the Right to Defend Oneself? An Analysis of the Current Israeli–Palestine Conflict, Under the Legal Definitions of the Rome Statute

I. Abstract

Few hostilities have consumed the international psyche and caused as much polarization as the Israel and Palestine conflict. In particular, the intensification of violence between Israel and Gaza in October of 2023 has caused a global re-examination of the way in which the international community defines the actions taken by both Hamas and the Israeli government during this iteration of the ongoing conflict. As calls for intervention and accountability are continually ubiquitous in public discourse, there is a need to parse through the rhetoric, and discover what methods of accountability are applicable, particularly after the eruption of violence since October 7, 2023. The most important determination when seeking accountability is determining the classification of the events for which the international community is seeking reconciliation. This comment analyzes the ever-present claims across the international legal field of genocide since October 7, 2023, the validity of these claims within the legal context, and the possible interplay of genocide with other crimes against humanity.

To adequately analyze the current hostilities, there is a need to delve deeper into the text of the Rome Statute and its clarifying provisions which list out the elements of the enumerated crimes. The Rome Statute and its clarifying provisions are just some of the documents needed to assess if there is a synergy between international agencies and organizations definitions of the conflict, and the ways in which the text of the Rome Statute defines certain crimes. Only after the situation is identified under the text of the Rome Statute, can an analysis adequately determine if the actions of the leadership have resulted in crimes as defined under the Statute, and then bring the International Criminal Court (ICC) one step closer to the ability to adequately prosecute offenders of these international crimes. An analysis of the text of the Rome Statute will also help determine if the ICC has the authority to engage in this conflict in the way in which the global community is calling for—and if not, is the global community at fault for perpetuating potential falsehoods and leading to a misinformed public? Or, is the Rome Statute in need of new definitions for the crimes it is intended to cover. Due to the limited focus of this comment, a thorough analysis of the Hamas terrorist attacks of October 7, which was the catalyst for the current Israeli response, is omitted.

II. Introduction

To determine the culpability of particular parties in this dispute is no easy feat; to begin we can assess some of the common claims that Israel is an apartheid state engaging in genocide.1 The question of genocide is of particular interest when assessed in the context of the October 7, 2023 attacks. In fact, there has already been lawsuit filed to the ICC requesting arrest warrants for Benjamin Netanyahu and his fellow Israeli officials for the crime of genocide.2 Although it may be argued that no genocide occurs without some prior provocation, the particularity and nature of the provocation that is the October 7 terrorist attacks understandably creates a situation calling for a keen eye in analyzing the space between retaliation from a state in efforts to defend itself, and acts of war that go beyond this threshold. In the international arena, when nations are dealing with terrorism, the principle of proportionality must be applied. The question of proportionality is also a pointed question when a temporary ceasefire starting on November 24, 2023 was abided by, only for the fighting to resume again on December 1, 2023. The enactment and follow through of a ceasefire for multiple days surely puts an intensified microscope on the veracity with which a continued onslaught is conducted. The joining of a ceasefire also brings into question if the resumption of the fighting should be tapered back. To frame the conversation, one must separate the claims of apartheid and genocide, and then analyze the claims within each particular crime under the Rome Statute definitions.

For a genocide3 against a people to occur, one must first classify the people into a group. The crimes against humanity framework of the Rome Statute provides greater guidelines to the acts which are deemed beyond the scope of ordinary warfare. The apartheid framework provided by the Rome Statute lays the groundwork for an apartheid analysis that can guide a deeper conversation of the application of the elements of genocide to the current warfare in Gaza. The classification of the population within Gaza will help decipher the actual makeup of the citizenry in Gaza and Israel. This understanding of the population within these three areas is important because genocide is not indiscriminate. A broader analysis of some separate crimes against humanity would greatly distinguish the current acts in Gaza as genocide, crimes against humanity, or a valid method of defense.

Extermination is also a framework defined under the Rome Statute that can contribute to the understanding of the claims of genocide. Although extermination is classified under the crimes against humanity umbrella in the Rome Statute, an analysis of extermination in particular dovetails with the examination of genocide due the similar results both actions bring about in the affected population. In any war where mass killings occur, the analysis of extermination may be a more legally appropriate classification for acts which don’t meet the high bar afforded to genocide, but which contribute to genocidal conditions which can affect the targeted populations. This is particularly poignant because extermination does not require proof of a perpetrator’s conscious desire to destroy a group, in the same manner genocide requires.

The analysis of the October 7 attacks provides an added lens on the long timeframe of the conflict. In this particular instance, the analysis consists of a power globally deemed as legitimate, defending itself through action of a retaliatory nature, against another power, whose legitimacy is often questioned and whose acts are equated with terrorism. The question then becomes: what are the limits in the right to defend yourself as a sovereign nation, and when does this cross the threshold into genocide? If the label of genocide does not fit, it may reveal that perhaps genocide has become a misnomer for the current level of warfare and its effects that the international community is witnessing in Gaza.

III. The Power of Language: Genocide Versus Crimes Against Humanity

To further understand if a genocide is occurring, it must be determined what differentiates genocide from the crimes against humanity, particularly because of the gravity the charge of genocide carries. The Rome Statute defines an exhaustive list of crimes against humanity. Under the crimes against humanity umbrella, one crime that has been levied against Israel in the international landscape is the crime of apartheid. The understanding of apartheid as applied in this context will aid in solidifying the understanding of defining the population that currently resides in Gaza, and under what conditions. The accusations of apartheid perpetuated by Israel against Palestinians is not a new accusation. The United Nations, one of the most consistently respected international organizations in existence, has defined the area of Gaza as a portion of the Occupied Palestinian Territory.4 The UN’s determination holds particular weight, not only because of the intergovernmental organization’s stature in the international landscape, but because it also cites the Rome Statute, the ICC’s governing document, when defining humanitarian crimes, including crimes against humanity and genocide.5 Amnesty International, an international Non-Governmental Organization, qualified the relations between Israel and Gaza as an “oppressive and discriminatory system of governing Palestinians in Israel and the Occupied Palestinian Territories [which] constitute[] a system of apartheid.”6 Amnesty International also asserts the crime of apartheid as the prolonged and cruel discriminatory treatment by one racial group of members of another with the intention to control the second racial group. Amnesty International is asserting that this is happening with Israel and Gaza because of the racial makeup of both areas and the extent to which Israel has created “a system of oppression and domination over Palestinians in all areas under its jurisdiction and effective control.”7

Currently in the Gaza Strip the people who live there identify with the Palestinian Arab ethnicity8 making the clear majority of citizens in this area, of Palestinian ethnicity. Given the percentage of Palestinian nationals in this area, Gaza can readily be identified as a Palestinian territory. However, nationality and ethnicity are not an equivalent category to race. The definition of apartheid relating one racial group’s control of another racial group then is itself not wholly applicable in the sense that claims of apartheid in Israel and the Occupied Palestinian Territories do not distinguish between race, ethnicity, and nationality. It is thus less applicable in delving further into an apartheid analysis because not only would it require determining the racial group of the Palestinians, but also of the state of Israel, which is a less homogenous population than the one found in Gaza.

Although the issue of race is not a fully settled issue in Gaza and Israel, the analysis and discourse around apartheid in Israel and the Occupied Palestinian Territories does allow for a deeper understanding of the populations living in each area. This understanding and grouping also allows for a deeper understanding of who lives in each area and how the people facing violence in Gaza identify as a separate group than the citizens who live in Israel. According to the U.S.’ Central Intelligence Agency, the ethnic groups within Israel differ vastly from the population in Gaza, with over 73% of Israeli inhabitants belonging to the Jewish ethno-religious group.9 Although there is a sizable Arab minority in Israel (with 21% of Israeli inhabitants identifying as Arab),10 populations in Gaza and Israel are clearly distinct from one another. With the determination that Gaza and Israel contain distinct populations, the genocide analysis gains further clarity. The people in Gaza are an identifiable group based on the categorizations provided by the CIA, and thus airstrikes directed at the Gaza Strip can rightfully be designated as targeting a specific group.

IV. Genocide Defined

Under the Rome Statute, “genocide” is defined as:

the 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:

Killing members of the group;

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

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

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.11

To accurately analyze the action of genocide, the definition genocide under the Rome Statute should be analyzed phrase by phrase.

A. Intent

In popular discourse the concept of genocide is much looser than that found in a legal context, and that undoubtedly contributes to the common classification of this current iteration of war as a genocide. The colloquial definition of genocide is based on a social science definition. In social science, genocide is defined as “large scale destruction and acts perpetrated against a population.”12

Within international discourse, the classification of this current iteration of violence as a genocide has gotten so advanced in popular discourse that a lawsuit was filed in the Northern District of California on November 13, 2023 by the nonprofit Center for Constitutional Rights.13 The Center for Constitutional Rights filed this lawsuit on behalf of plaintiffs including a group of Palestinians living in Gaza and the United States as well as human rights organizations. The suit is against U.S. President Joe Biden and other state officials, alleging the United States is complicit by not abiding by the 1948 Geneva convention to take all available measures to prevent a genocide.14 This lawsuit has received support from scholars in the form of a declaration signaling their support.15 The amicable response in popular discourse to the social science definition of genocide is also based on an analysis of the gradual expansion of Israeli territory, and the effects on populations in the region over time. But this common social science classification of the current warfare occurring between Israel and Gaza are not the same definitions we find in the legal community. On the legal international stage, the threshold for the crime of genocide is extraordinarily high.

B. Members of a Group

Any genocidal action must be made with the intention of destroying in whole or in part a national, ethnic, racial or religious group. The first portion of intent in the Rome Statute’s definition is also the most complex to pinpoint when classifying the actions of Netanyahu and those actions he has authorized. The stated intent of Israel in this active war, as declared by the Israeli Prime Minister Benjamin Netanyahu in his October 9, 2023 address is to “exact a price to be remembered by [Hamas] and Israel’s other enemies for decades to come.”16 This statement is vague, but powerful in that it was preceded by the statement “Israel didn’t start this war, Israel will finish it.”17 The intent throughout the Prime Minister’s official statement is squarely directed at Hamas, Hamas militants, and the perpetrators of the atrocities on October 7, 2023. Clearly, Netanyahu’s official declaration of war is not sufficient to find any intent to destroy a national, ethnic, racial, or religious group.

However, the Israeli President Isaac Herzog’s statement during an October 13, 2023 press release paints a different picture which at times conflates the target of Hamas with the Palestinian people. During his press conference, Herzog stated “[i]t’s an entire nation that is out there that’s responsible. It’s not true, this rhetoric about civilians not aware, not involved. It’s absolutely not true.” Adding:

They could have risen up, they could have fought against that evil regime which took over Gaza in a coup d’état.18

These statements by the Israeli president are particularly concerning because the implications on the international stage can be two-fold. Primarily, the goal-post for what deems someone an innocent is shifted with this rhetoric. Requiring every civilian to respond in an uprising, and implying complicity if civilians fall short of this, inherently calls for collective punishment. Secondly, collective punishment itself is prohibited under international law because it creates culpability for acts one did not commit.19 This statement is also concerning coming from Israel’s president because it then can be interpreted as targeting a national or ethnic group. By enacting culpability on the citizens of Gaza, and claiming there are no innocent civilians, it equates the entirety of the citizenry of Gaza with Hamas and imputes onto every civilian the culpability for the terrorist attacks of October 7, 2023.

The words used by the President and Prime Minister, two of the highest-ranking officials of the state of Israel, are of tantamount importance because words are foundational in establishing intent, a key component in defining a crisis as genocide. Which is why even though this statement was made, there must be importance placed on the clarifying statements made by Herzog as well. At the same October 13, 2023 conference, Herzog stated he is not holding the civilians of Gaza responsible for keeping Hamas in political power, and that civilians are not the target of the Israeli defense forces.20 Given the immediate clarification of the statements, it would be difficult to find intent to target the people in Gaza based on their nationality or ethnic group from Herzog’s statements alone. It is also important for the actions taken in the warfare between Hamas and Israel to be critically analyzed due to the stringent requirements for classifying something as genocide and also the grave implications genocide holds with it on the international stage.

C. Elements of the Subsets of Genocide

For the basis of the international standard to be covered, the actions authorized by Netanyahu and conducted by Israel must be analyzed through the Elements of Crimes as defined by the ICC as well. The ICC has provided an enumerated breakdown of the elements of crimes, with Article 6 of this document enumerating the elements of genocide.21 This list allows a look at the actions of the past 50+ days, from October 7, 2023 until December 2023. Genocide is broken down into five subsections:

Genocide by killing.
Genocide by causing serious bodily or mental harm
Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction.
Genocide by imposing measures intended to prevent births, or
Genocide by forcibly transferring children.22

Within each of these subsections, the act of genocide, no matter the subset, requires “[t]he perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.”23 Netanyahu and Israeli officials under his direction, as the perpetrators of airstrikes and ground invasion on the Gaza Strip, have not purported to have an intent to destroy Palestine in totality, or all members of the Arab Palestinian ethnicity, race, or religious group. What Israel has done, is vow to destroy Hamas,24 the entity behind the October 7 terrorist attack in Israel and the de facto governing body in the Gaza Strip for the past 16 years.25 However, with the nature of the strikes and military operations within Gaza affecting at least 10,000 women and children26 in such a short period of time, raises questions to anyone’s moral compass.

Israeli officials will not dismiss the obvious concerns surrounding the results of Israeli airstrikes and ground invasion on the Gaza Strip. In fact, Israeli officials have addressed these concerns. However, there in their responses there is a purported reasoning for these results, that is unrelated to nationality, ethnicity, race or religion, which would directly disengage any genocide classification. The Israeli military claims that Gaza is a battlefield unlike others, being small and dense.27 This is factually true, as Gaza which has been referred to as the world’s largest open air prison,28 is merely 18 square miles,29 or a 25-by-7 mile strip of land.30 The over two million inhabitants within this area result in an immensely dense 14,893 people per square mile,31 and civilians live next to, and even on top of Hamas combatants, who rely on tunnel networks to shield themselves and their weapons. As a result, this puts residents directly in the line of fire, according to the Israeli military.32 These underground tunnel networks were key to enabling the deadly attacks on October 7, according to the Israeli military.33 Israeli forces also purport to use strategic objectives in order to cause “minimal adverse effect[s] on civilians” in its warfare.

The close proximity with which civilians reside in relation to Hamas creates a tragic reality for the civilian inhabitants of Gaza. Hamas has effectively made the civilian population of Gaza human shields. The innocent civilians are so inextricably linked to Hamas militants in their living quarters. This thus causes the citizenry of Gaza to face their demise at an alarming rate during this iteration of warfare.

i. Genocide by Killing

Genocide by killing is the most readily identifiable definition of genocide, and includes the following elements:

The perpetrator killed one or more persons.
Such person or persons belonged to a particular national, ethnical, racial or religious group.
The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
The 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.34

With the war in Gaza taking the lives of at least 15,000 people and the Israeli military acknowledged that children, women, and elderly people have been killed in Gaza35 the first element of genocide by killing is fully met. Given the earlier analysis of Gazans as a distinct group, the second element for genocide is also met since the aggression is targeting inhabitants of Gaza who belong to the Palestinian Arab group. Moving onto element four, this is also met because of the air strikes from the Israeli army, including U.S.-made 2000-pound bombs that can flatten an apartment tower,36 constitutes conduct that satisfies the actus reus of a genocidal policy due to the level of continuous bombing throughout the strip of Gaza. The bombing is capable of directly affecting the total or partial destruction of Gazans. Going back to element three, it remains an outlier which relates back to the general genocide analysis that the Israeli army and leadership cannot rightfully be deemed to have shown explicit intent to destroy the Palestinian Arabs living on Gaza Strip. The intent by the officials and leaders of the Israeli army has consistently been retribution for the October 7th attacks.

ii. Genocide by Causing Serious Bodily or Mental Harm

Genocide by causing serious bodily or mental harm is a less common categorization but given the following elements, it may apply to the current situation in Gaza:

The perpetrator caused serious bodily or mental harm to one or more persons.
Such person or persons belonged to a particular national, ethnical, racial or religious group.
The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
The 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.37

The first element of serious mental harm is exhibited by the people in Gaza who have provided updates throughout the warfare. One reporter from Gaza, Bisan Owda, who has provided updates of the war wrote:

I no longer have any hope of survival like I had at the beginning of this genocide, and I am certain that I will die in the next few weeks or maybe days.38

Motaz Azaiza, another Gazan reporter on the ground in the Gaza Strip, stated: “Our situation is tragic beyond understanding” and “remember […] we are a nation that is getting killed and we are trying not to be ethnically cleansed.”39 No matter the factual accuracy of the claims of ethnic cleansing, there is no doubt that mental harm has occurred and this element is met in this conflict. Although the accounts above are just those of two voices from the Gaza Strip, it is reasonable that this sentiment of mental and bodily harm is also met, as at least 40,000 people in Gaza have been reported injured,40 in the Israeli army’s quest to destroy Hamas. The analysis of elements two through four remain the same as that found in the analysis of genocide by killing.

iii. Genocide by Deliberately Inflicting Conditions of Life Calculated to Bring About Physical Destruction

Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction may also apply to the current situation in Gaza given the following elements:

The perpetrator inflicted certain conditions of life upon one or more persons.
Such person or persons belonged to a particular national, ethnical, racial or religious group.
The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.
The 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.41

The main differentiating element in analyzing genocide by deliberately inflicting conditions of life calculated to bring about physical destruction, is the manifestation of those conditions. There is evidence to suggest said conditions have been brought about in Gaza. After the first humanitarian-pause between Israel and Hamas, beginning on November 24, 2023,42 humanitarian aid and assistance was able to enter the Gaza Strip in a substantial way,43 after previously being prevented during the four weeks of war leading up to the temporary truce. During the truce, the World Health Organization asserted that outside of the airstrikes, that disease from the circumstances after the bombings including damaged infrastructure, suspended supply chains, the lack of fuel, damaged hospitals and drinking water shortages.44 The World Health Organization has urged that healthcare and sanitation systems in Gaza are in desperate need of restoration,45 otherwise untreated diseases will exacerbate the death toll.46 These conditions were in fact inflicted in Gaza. However, the classification of genocide still falls short because element four is not clear cut. The effects of the bombs and the strategy were undoubtedly calculated as Israeli authorities have specific targets, and will even alert the public of their planned targets through leaflets before their attacks. The difficulty in this analysis comes again from the determination of the group being targeted. The Israeli army is undoubtedly targeting Hamas, but the proximity in which Gazan citizens and Hamas militants reside makes it extremely difficult to group the two into separate categories, and again brings about questions of collective punishment. The analysis of element two related to an identifiable group remains the same as above, where Palestinian Arabs living in Gazans are established as their own group.

iv. Genocide by Forcibly Transferring Children

Genocide by forcibly transferring children is of keen interest in this iteration of the conflict due to the age of the inhabitants of Gaza under the following elements:

The perpetrator forcibly transferred one or more persons.
Such person or persons belonged to a particular national, ethnical, racial or religious group.
The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
The transfer was from that group to another group.
The person or persons were under the age of 18 years.
The perpetrator knew, or should have known, that the person or persons were under the age of 18 years.
The 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.47

Genocide by forcibly transferring children is a more attenuated charge of genocide in this current iteration of warfare, but it is worth analyzing given the specific demographics of the Gazan population. The UN’s Permanent Observer for Palestine reported on November 28, 2023 that more than 1.8 million civilians in Gaza, or nearly, 80 percent of the population, are estimated to be internally displaced, with nearly 1.1 million across Gaza sheltering in facilities run by the United Nations Relief and Works Agency for Palestine Refugees in the Near East.48 The displacement of the Gazan population is related to the forcible transferring of children because 40% of Gaza’s population is 14 years old or under,49 children make up around 50% of the population on the Gaza Strip,50 and the median age in Gaza is 18 years old.51 These same citizens are the ones receiving multiple evacuation orders which Israel’s military states should be obeyed by Gazan citizens because it “is the safest way to preserve your safety, your lives, and the lives of your families.”52 If the group’s population is over 40% children, and the group is being instructed that to survive, they must evacuate certain areas, then this is likely classified as transferring the group of children. However, this element is not fully fulfilled because there is not the transferring of children to another group. Rather the transfer occurring is of the group from one space inside the territory to another inside the same territory. However, the issue with the continued notifications of evacuation is that the areas which are safe and habitable for the group lessen with each forced evacuation. There is also increased confusion for the inhabitants trying to stay in safe areas with many Gazans, who were already displaced, under orders to move again.53

The elements of genocide related to killing of members of a group, causing of bodily and mental harm to members of the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, are readily identified in the Gaza population since the start of the retaliation for the October 7 terrorist attacks, beginning the newest iteration of this conflict. Yet, what remains true throughout every categorization of genocide is that if the ICC proceeds in prosecuting actions by the Israeli army and leadership, a line of evidence that points to any intent of genocide that can be rightly attributed to the leadership of the state of Israel is lacking. This missing element of intent would block any prosecution for genocide because all elements are needed to successfully bring the charge.

Under this analysis, another main question persists: Could the Israeli military leaders even be subject to prosecution under the ICC? Israel was never a party to the Rome Statute and withdrew its signature from the ICC in 2002 in accordance with Article 127 of the Rome Statute, permitting withdrawal from the Statute.54 However, this does not preclude Israeli leadership from being taken before the ICC.55 A nation state that is not a signatory to the Rome Statute does, however, create limitations on how the Court can preside over that state, in this case Israel or its actions in the Gazan territory.

V. An Exceptional Case for Israel, or Business as Usual?

In the analysis of Israel’s actions, it is crucial to disentangle any criticism of the state of Israel from criticism of Jewish people to preserve any semblance of validity in a critique. The leading anti-hate organization in the world,56 the Anti-Defamation League, has struck down the notion that genocide is happening by Israel against the Palestinian people under the legal definition. In fact, the Anti-Defamation league has likened the notion itself of accusing Israel the heightened rhetoric of committing genocide during this time of as based upon placing an exceptional standard to Israel that does not apply to other countries, and contributes to demonization of the state of Israel.57

To most adequately analyze if the acts of Israel against Hamas in the Gaza Strip amount to a genocide, the public can compare what is currently known about the actions taken in Gaza to other situations deemed as genocides, and situations the ICC and its prosecutors have taken and charged with the crime of genocide. As of December 2023, Israel’s military operations since October 7 have resulted in the injuries of at least 40,900 Palestinians58 with over 14,500 people in Gaza killed.59 Since October 7, 2023, Israel has reportedly dropped at least 25,000 tons of explosives on the Gaza Strip.60 The airstrikes have demolished much of northern Gaza, with the newest iteration of the ground invasion targeting southern Gaza as well. The strikes are all in an effort to fight the Hamas militants. Because civilians are used as human shields, more than 1.7 million people in Gaza have been displaced due to the violence.61

Before the formation of the ICC, the International Criminal Tribunal for the former Yugoslavia prosecuted the crime of genocide in the Bosnian Genocide.62 The Bosnian war resulted in the displacement of over 2 million men, women, and children. A campaign of war crimes, “ethnic cleansing,” and genocide was perpetrated by Bosnian Serb troops under the orders of the Serbian officials at the time, President Slobodan Milošević, the Bosnian Serb leader Radovan Karadžić, and Ratko Mladić the Bosnian Serb commander.63 As Bosnian Muslims fled to the town of Srebrenica, Bosnian Serb forces attacked the people living in the enclave. Bosnian forces controlled the access roads and prevented the delivery of international humanitarian aid such as food and medicine.64 In March 1995, Radovan Karadžić instructed Bosnian Serb forces to eliminate the Muslim population from the Srebrenica enclave.65 As a direct result of the violence, up to 8,000 people were killed.

When analyzed and compared to the Srebrenica genocide, there are reasonable similarities found between the two wars. The similarities between the current iteration of the Israeli–Palestinian conflict and the Bosnian Genocide can reasonably bring about claims that a genocide is happening today. Particularly because in order to understand the current conditions of Gaza, there is a need to determine what entities hold authoritative power over Gaza’s territory, which is aided by the earlier apartheid analysis. Although an undoubtable aspect of this answer is Hamas, there is often debate as to whether Gaza and the West Bank are Occupied territories, or wholly independent entities part of a unified state of Palestine. Israel has conceded that the areas of the West Bank and Gaza are independent territories with their own governments, leadership, and autonomy since September 12, 2005.66 This is supported by the actions of Israel withdrawing all of its military and civilian installations from Gaza, and Hamas itself stating that Gaza is not occupied in 2012.67 Benjamin Netanyahu has even stated that Israel’s goal in Gaza is not to occupy the area.68

Because international organizations, nonprofits, and international bodies have publicly called Israel and Gaza an apartheid regime, the link between Israel’s actions and its control over Gaza can fit the definitions of control seen in the Bosnian Genocide. Defining the areas of Gaza and the West Bank as The Occupied Palestinian Territories by international organizations also brings new considerations for the state of Israel when interacting with the civilians who live in Gaza. The International Law of Occupation requires a hostile army to have “effective control” over a territory in an area where its authority can be exercised, to the exclusion of the territory’s established government.69 If Gaza is an occupied territory, then it can be said that the Israeli army does have effective control over the Gaza territory because Israel has the power to allow aid into the Gaza Strip, which is what occurred during the brief ceasefire from November to December of 2023 where Israel allowed 50 trucks with humanitarian assistance and 100 aid trucks to transport items needed for survival and fuel to Gaza.70 Israel also has control over opening additional humanitarian crossings for the people of Gaza.71 This level of control brings the situation between Israel and Gaza closer to the Bosnian Genocide because Bosnian forces controlled the humanitarian aid to the population in Srebrenica. However, the complicated situation with Egypt and their control of the Rafah border does not squarely place Israel with complete control over all the crossings for Gaza.

In Sudan, the ICC has two outstanding arrest warrants for the former president of Sudan, Omar al-Bashir for the crime of genocide. al-Bashir is charged with the genocide in Darfur due to the killing and torture of hundreds of thousands of people in the Darfur region. Estimates of the death toll in the conflict have reached as high as 500,000.72 Under the ICC, al-Bashir has been charged with committing genocide against the Fur, Masalit, and Zaghawa ethnic groups. These groups were perceived to be close to the armed groups fighting the Sudanese government at the time, and the ICC says a core component of the Sudan government’s campaign against armed groups, in particular against the Sudan Liberation Movement and the Justice and Equality Movement, was the unlawful attack on the civilian population of Darfur.73 The Court found that “there are reasonable grounds to believe that Omar al-Bashir acted with specific intent to destroy in part the Fur, Masalit, and Zaghawa ethnic groups.”74

In comparing the two situations, there is an obvious commonality of the killing of civilian populations. Additionally, just as the groups fighting the government in Sudan were the target of al-Bashir’s violent retaliation, Hamas’ October 7 attacks created threats for the Israeli population causing the government to react. The scorched earth campaign engaged in during the war in Darfur draws similarities to the tactics the Israeli army is engaging in, where civilian targets are not off-limits and many areas of Gaza have been flattened.75 Additionally, the genocide in Darfur resulted in the displacement of 2 million people, and as of December 2023, most of the Gaza Strip’s 2.1 million residents have been displaced.76

However, suggestions that the “Israeli intention to commit genocide [is] visibly materialising on the ground”77 still falls short due to some stark differences between the two situations. First, in Sudan the number of individuals killed is said to be up to half a million people and at least 300,000 civilians. This would make the genocide in Darfur by absolute numbers much deadlier because about 14,500 Gazans have been killed. However in proportion to the population, with Darfur being home to between 7.5 million and 9 million people,78 and Gaza being home to around 2 million people these outcomes may be more comparable proportionally. One fact that cannot be overlooked is the continued messaging from Israeli officials that they are targeting Hamas, and not a specific ethnic group, which differs from the calls al-Bashir has made whereby his government sponsored group was targeting the Black African farmers, with the intent to destroy this ethnic group.79 Thus, a comparison to the ICC’s other genocide charges still does not amount to a direct comparison for the situation between Israel and Hamas.

VI. Extermination as a Form of Defense?

Under the Rome Statute, “extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.80 In evaluating the response Israeli officials have authorized for the October 7 attacks, Israel has invoked the right to defend itself. Israeli President Herzog has noted that under International Humanitarian Law, Israel has the right to defend itself, and they are taking all the necessary precautions to alert Gaza civilians of future strikes.81 Israel has not formally invoked the right to defend itself under Article 51 of the U.N. Charter, which would provide specific constraints for a defense operation.82 However, under international law, the right of self-defense can be interpreted as the right to repel an attack, and not the right to wage an all out war which may be deemed disproportionate.83

The calculated risks the Israeli army officials undertake when they determine that they are killing two civilians for every one combatant,84 or attacking one target that leaves 400 people killed or injured,85 on a proportionate scale can likely amount to extermination under international law. The elements of extermination under the crimes against humanity framework of the ICC are as follows:

The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population.
The conduct constituted, or took place as part of a mass killing of members of a civilian population.
The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.86

In the current situation between Gaza and Israel, the first element of extermination is at least partially met because of the confirmed reports of death within the Gaza Strip. The second element is also met because it is known that as of December 2023, over 14,500 people in Gaza have been killed, with at least 10,000 being civilians. Element three for extermination is also likely met because the Israeli government has conceded that Hamas hides among the civilian population, and thus civilians in hospitals, homes, and other areas deemed primarily for civilian use, and ordinarily protected under International Humanitarian Law are par for the course when a calculated attack occurs. But, because Israel has stated that it is directing its attacks against Hamas, and not actual innocent civilians, there is a question of whether the third element in the extermination analysis is met, because civilians may still be regarded as the human shields of Hamas under this analysis. Element four of knowledge in determining an extermination is met, if it is found that the attack qualifies as “direct.” This is because the release of leaflets to the population while serving as a humanitarian strategy to protect those reading the warnings, also shows direct knowledge of the offensive and the destruction it can cause. Under the current language of the ICC’s Rome Statute, extermination is the closest applicable crime this comment can find to categorize the current situation in Gaza. With this, there is still not a squarely on point charge for Israel under current International Humanitarian Law. A question still remains: if the international community is wrongfully accusing Israel of committing crimes it has not legally committed, is there a sense that International Humanitarian Law needs an audit to re-define what the international community deems acceptable behavior by a nation state in times of war?

In that the ICC would prosecute Hamas’ leadership and Netanyahu, there is a likelihood that reconciliation can begin. On both the Israeli and Palestinian sides, civilians have demonstrated outcries against their leadership which is steadfast in attacking and harming the other side. However, with the ICC’s lack of jurisdiction over Israel, the task of prosecution of any Israeli leader or any war crimes under the Rome Statute would demonstrate a barrier the ICC may find impermissible. Especially when there is still debate over which crimes the state could be prosecuted with under the current structure of the crimes which the ICC has jurisdiction over.

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

1.
See, e.g. Craig Mokhiber, Director of OHC-NY, Letter of Resignation (Oct. 28, 2023), available online.

(Mokhiber resigned over the organization’s “failure” to act against what he called a “text-book case of genocide.”). ↩
2.
Three Rights Groups File ICC Lawsuit Against Israel Over Gaza “Genocide”, Al Jazeera, Nov. 9, 2023, available online. ↩
3.
Rome Statute, Art. 6. ↩
4.
Crisis Context and Impact, OCHA, available online (last visited Dec. 21, 2023). ↩
5.
Crimes Against Humanity, OGPRtoP, available online (last visited Dec. 21, 2023). ↩
6.
Amnesty International, Israel and Occupied Palestinian Territories (2022), available online. ↩
7.
Amnesty International, Israel’s Apartheid Against Palestinians (2022), available online. ↩
8.
Gaza Strip, at “People and Society,” CIA World Factbook, (updated Dec. 6, 2023), available online (last visited Dec. 21, 2023). ↩
9.
Israel, at “People and Society,” CIA World Factbook (updated Dec. 6, 2023), available online (last visited Dec. 21, 2023). ↩
10.
Id. ↩
11.
Rome Statute, supra note 3. ↩
12.
Solcyre Burga, Is What’s Happening in Gaza a Genocide? Experts Weigh In, Time Magazine, Nov. 14, 2023, available online. ↩
13.
Defense for Children International—Palestine et al. v. Joseph R. Biden, Jr., Anthony J. Blinken, Lloyd James Austin III, 3:23-cv-05829, Complaint (N.D. Cal., Nov. 11, 2023), available online. ↩
14.
Id. ↩
15.
Defense for Children International—Palestine et al. v. Joseph R. Biden, Jr., Anthony J. Blinken, Lloyd James Austin III, 3:23-cv-05829, Declaration of Dr. John Cox, Dr. Victoria Sanford, and Dr. Barry Trachtenberg in Support of Plaintiffs’ Motion for Preliminary Injunction (N.D. Cal., Nov. 13, 2023), available online. ↩
16.
Benjamin Netanyahu, Prime Minister of Israel, Statement, YouTube (Oct. 9, 2023), video. ↩
17.
Id. ↩
18.
Chantal Da Silva, “Everybody Is Scared”: As Gaza Faces Threat of Ground Invasion, Tensions Run High in Israel, NBC News, Oct. 13, 2023, available online. ↩
19.
Collective Punishment, Prac. Guide to Humanitarian L., available online (last visited Dec. 14, 2023). ↩
20.
Greer Fay Cashman, Herzog Characterizes Gaza as an Empire of Evil, The Jerusalem Post, Oct. 12, 2023, available online. ↩
21.
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. ↩
22.
Id. ↩
23.
Id. ↩
24.
Dan De Luce, Peter Nicholas, Abigail Williams & Yasmine Salam, Israel Says It Wants To Destroy Hamas. But Who Would Govern Gaza After That?, NBC News, Oct. 18, 2023, available online; Samia Nakhoul, Matt Spetalnick & Alexander Cornwell, What Is Israel’s Endgame in Gaza Invasion?, Reuters, Oct. 19, 2023, available online. ↩
25.
Foreign Terrorist Organizations—Hamas, National Counterterrorism Center, (updated Sep. 2022), available online (last visited Feb. 14, 2024). ↩
26.
Lauren Letherby, Gaza Civilians, Under Israeli Barrage, Are Being Killed at Historic Pace, N.Y. Times, Nov. 25, 2023, available online. ↩
27.
Id. ↩
28.
Human Rights Watch, Gaza: Israel’s “Open-Air Prison” at 15 (updated Jun. 14, 2022), available online. ↩
29.
Dylan Moriarty & Bonnie Berkowitz, Visualizing the Size of Gaza City Compared With U.S. Cities, Wash. Post, Oct. 17, 2023, available online. ↩
30.
Human Rights Watch, supra note 28. ↩
31.
Moriarty & Berkowitz, supra note 29. ↩
32.
Letherby, supra note 26. ↩
33.
Id. ↩
34.
Elements of Crimes, supra note 21, at Art. 6(a). ↩
35.
Letherby, supra note 26. ↩
36.
Id. ↩
37.
Elements of Crimes, supra note 21, at Art. 6(b). ↩
38.
Bisan Owda (wizard_bisdan1), Instagram (Dec. 2, 2023), available online. ↩
39.
Plestia Alaqad (byplestia), translating and quoting Motaz Azaiza, Instagram (Dec. 2, 2023), available online; see also Sanjana Karanth, Gaza’s Remaining Journalists Are Tired and Running Out of Hope, Huff. Post, Dec. 3, 2023, available online. ↩
40.
Ali Sawafta, More Than 15,900 Palestinians Killed in Gaza Since Oct. 7—Palestinian Health Minister, Reuters, Dec. 5, 2023, available online. ↩
41.
Elements of Crimes, supra note 21, at Art. 6(c). ↩
42.
Najib Jobain, Josef Federman & Jack Jeffery, On Day One of Gaza Cease-Fire, Hamas and Israel Carry Out First Swap of Hostages and Prisoners, AP, Nov. 24, 2023, available online; see also Edmund Blair, Israel–Hamas war: The Hostage Deal and Ceasefire Explained, Reuters, Nov. 27, 2023, available online. ↩
43.
Israel–Hamas Truce: How Much Aid Has Entered Gaza?, Al Jazeera, Nov. 29, 2023, available online. ↩
44.
Disease Could Kill More in Gaza Than Bombs, WHO Says Amid Israeli Siege, Al Jazeera, Nov. 28, 2023, available online. ↩
45.
Id. ↩
46.
David Gritten, Untreated Diseases Could Kill More Than Bombings in Gaza, WHO Warns, BBC News, Nov. 28, 2023, available online. ↩
47.
Elements of Crimes, supra note 21, at Art. 6(e). ↩
48.
Press Release, G.A., GA/12566, Staggering Loss of Life in Gaza, Follow-on to Temporary Truce Dominate General Assembly Debate on Decades-Long Question of Palestine (Nov. 28, 2023), available online. ↩
49.
Gaza Strip, supra note 8. ↩
50.
Sarah Shamim, Is Israel’s Gaza War the Deadliest Conflict for Children in Modern Times?, Al Jazeera, Nov. 7, 2023, available online. ↩
51.
Christopher Wolf & Julia Haines, Life and Death Before the War: Israel, Gaza and the West Bank by the Numbers, U.S. News & World Rep., Nov. 14, 2023, available online. ↩
52.
Avichay Adraee (@AvichayAdraee), X (Dec. 2, 2023) (Ara.), available online.

(Adraee is part of the Arab media division of the oPt Spokesperson’s Unit). ↩
53.
Vivian Yee, Ameera Harouda & Talya Minsberg, Israel’s Military Widens Evacuation Orders in Southern Gaza, N.Y. Times, Dec. 4, 2023, available online?. ↩
54.
Daniel Benoliel & Ronen Perry, Israel, Palestine and The ICC, 32 Mich. J. Int’l L. 73 (2010), available online. ↩
55.
Rabia Ali, International Criminal Court No Threat for Israel as It “Tries the Weak Rather Than the Strong”: Israeli Academic, Anadolu Agency (Oct. 19, 2023), available online. ↩
56.
Who We Are, ADL, available online (last visited Dec. 14, 2023). ↩
57.
Anti-Defamation League, Allegation: Israel Commits Acts of Genocide (Oct. 25, 2023), available online. ↩
58.
Sawafta, supra note 40. ↩
59.
Phil Helsel, Israeli PM Office Says Country Committed to Freeing Hostages, Eliminating Hamas, NBC News, Dec. 1, 2023, available online. ↩
60.
Hanna Duggal, Mohammed Hussein & Shakeeb Asrar, Israel’s Attacks on Gaza: The Weapons and Scale of Destruction, Al Jazeera, Nov. 9, 2023, available online. ↩
61.
Helsel, supra note 59. ↩
62.
Nicole Hassenstab, Prosecuting Hate: Genocide and the International Criminal Court, Am. U. (Sep. 7, 2023), available online. ↩
63.
International Residual Mechanism for Criminal Tribunals, Srebrenica Timeline of a Genocide, available online (last visited Dec. 15, 2023). ↩
64.
Id. ↩
65.
Id. ↩
66.
Elizabeth Samson, Gaza Not Occupied, Says Hamas, So Where Is the UN?, Hudson Inst. (Feb. 14, 2012), available online. ↩
67.
Id. ↩
68.
Netanyahu Says Not Seeking to “Occupy” Gaza But “Demilitarise” It, Al Jazeera, Nov. 10, 2023, available online. ↩
69.
Samson, supra note 66. ↩
70.
Barak Ravid, U.S. Pressing Israel to Allow Same Levels of Aid Into Gaza as During Ceasefire, Axios, Dec. 2, 2023, available online. ↩
71.
Alexander Ward & Erin Banco, US Quietly Pushing Israel to Open a Second Gaza Crossing, Politico, Dec. 6, 2023, available online. ↩
72.
Press Release, Amnesty Int’l, Why Former Sudan President Omar Al-Bashir Must Not Escape Justice (Apr. 17, 2019), available online. ↩
73.
Id. ↩
74.
International Criminal Court, ICC-02/05-01/09, Case Information Sheet: The Prosecutor v. Omar Hassan Ahmad Al Bashir (updated Jul. 2021), available online. ↩
75.
Muhammad Abdul Bari, Israel’s Scorched Earth Policy in Gaza Could Prove Fatal, Al Jazeera, Nov. 20, 2023, available online. ↩
76.
Bassam Masoud, Gaza Families Flee Again to Shrinking, Overcrowded Pocket of Land, Reuters, Dec. 5, 2023, available online. ↩
77.
Burga, supra note 12. ↩
78.
Relief Web, Darfur 2003–2005 (Sep. 2021), download. ↩
79.
Genocide In Darfur, Holocaust Memorial Day Trust, available online (last visited Dec. 21, 2023). ↩
80.
Rome Statute, supra note 3, at Art. 7(b). ↩
81.
Isaac Herzog, Israeli President, War Against Hamas Intended “To Save the Values of Western Civilization”, MSNBC on YouTube, Dec. 5, 2023, video. ↩
82.
Michelle Nicols, US Pushes UN to Back Israel Self-Defense, Demand Iran Stop Arms to Hamas, Reuters, Oct. 21, 2023, available online. ↩
83.
Owen Jones, A Risk of “Extermination” in Gaza: UN Rapporteur Francesca Albanese’s Horrifying Warning, YouTube (Nov. 4, 2023), video. ↩
84.
Mitchell McCluskey & Richard Allen Greene, Israel Military Says 2 Civilians Killed for Every Hamas Militant Is a “Tremendously Positive” Ratio Given Combat Challenges, CNN, Dec. 6, 2023, available online. ↩
85.
Id. ↩
86.
Elements of Crimes, supra note 21, at Art. 7(1)(b). ↩

Kellan Grant
52273
February 20, 2024
7:25 pm

I. Introduction

On October 7, 2023, a widespread surprise attack on Israel was launched by Hamas leaders, commanders, and militants in which they invaded Israeli towns from the Gaza Strip. Since then, an ongoing conflict between Israel and Hamas has ensued. Devastatingly, many civilians in both Israel and the Palestine area have lost their lives as a result. Since October 7, 2023, there have been numerous assertions made that various crimes are being, or have been, perpetrated by various persons associated with the conflict. Among such assertions, multiple entities have been accused of committing genocide, crimes against humanity, and war crimes.

The Rome Statute grants the International Criminal Court (ICC) jurisdiction over genocide, crimes against humanity, war crimes, and crimes of aggression. Article 6 of the Rome Statute defines genocide, Article 7 defines crimes against humanity, and Article 8 defines war crimes that may be accused and prosecuted by the ICC. In this comment, I examine various crimes that have been asserted against Hamas and Israel as the conflict in the Middle East has ensued. Within this comment, I use the provisions set forth in the Rome Statute to examine various accusations and claims, and I limit my analysis to crimes that have been asserted against Hamas officials and militants and the Israeli military and leaders. It appears clear that numerous Rome Statute violations were committed by Hamas on October 7, 2023, and may be charged against Hamas leaders who were in charge of planning and organizing the widespread attack. Regarding Israeli forces, there appears to be much less clear-cut evidence that violations under the Rome Statute have occurred, and in many instances, much more investigation is needed before such forces could be validly prosecuted for the crimes mentioned above in the Rome Statute.

II. Rome Statute Violations and Accusations Committed By Hamas

In my opinion, there is little dispute that Hamas leaders, commanders, and combatants committed Rome Statute violations during their attack on Israel in early October 2023. In the early morning of October 7, 2023, Hamas launched a surprise attack on Israel in which they stormed into Israeli towns from the Gaza Strip. The attacks were systematic and carefully planned, with Hamas units given orders to target separate objectives, including military bases, kibbutzim, roads, and towns.1 Additionally, another set of units were tasked with capturing “as many hostages as possible.”2 The effects of these attacks were devastating. A total of roughly 1,200 people were killed, among which included both civilians and military personnel.3 Within the death toll were 364 people killed at a music festival, not far from a kibbutz included on the targeted list.4 Furthermore, around 240 people were taken hostage, a number that includes both children and elderly persons.5 These brutal and vicious attacks were largely believed to have been planned and orchestrated by Yahwa Sinwar, the head of Hamas in Gaza, and Mohammed Deif, one of Hamas most powerful military commanders.6

A. Genocide Accusations from October 7, 2023

The first of the Rome Statute crimes that Hamas militants and leaders may have committed on October 7 is genocide under Article 6 of the Rome Statute. Article 6 of the Rome Statute states:

For the purposes of this statute, 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:

Killing members of the group;

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

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

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.7

Hamas units both killed Israelis and caused serious bodily harm and mental harm to Israelis. As mentioned above, around 1200 Israelis were killed because of these attacks. In fact, one captured Hamas attacker even stated that the “mission was to kill […] anyone we saw.”8 Aside from the killings, many more were wounded, and the horrors of these acts clearly forced mental harm upon the Israeli people, many of whom likely did not know whether they would make it past the day alive.

The toughest element the ICC Prosecutor would face in proving genocide under Article 6 of the Rome Statute is the intent element. While the above elements are physical elements that can be objectively proven, the intent element is a mental element that requires the subjective analysis of those perpetrating the crimes. It must be shown that in committing the acts there existed an intent to destroy. The strongest argument in favor of Hamas-directed attacks on October 7, 2023 satisfying this element of genocide can be found in the Hamas Covenant of 1988. There, Hamas opposition and hostility toward Israel is explicitly stated in the preamble: “Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it.”9 Essentially, this charter outlines the identity and purpose of Hamas as an entity. Thus, this statement, and an overall theme of obstruction of Israel throughout the charter, persuasively serves as indication that Hamas’ surprise attack—which killed and injured thousands of people—was done with the intent to destroy Israel.

Yet, there remains a valid argument that Hamas’ October 7, 2023 attacks do not constitute the necessary intent under Article 6 of the Rome Statute. In the view of proponents of this argument, the requisite intention is so narrowly interpreted that the charter is not enough per se to prove that Hamas possessed the necessary intent in these attacks. For example, Raz Segal, an associate professor of Holocaust and genocide studies at Stockton University, states:

I definitely see intent to kill a significant number of members of the group, to instill unbelievable trauma and terror among members of the group […] But I don’t see intent to destroy in relation to the Hamas attack that would render it an act of genocide.10

I recognize Segal’s argument here; however, I disagree. While it is of course difficult to discern intent given its nature as a mental element, I struggle to perceive how statements in founding documents indicating a group’s purpose to obliterate a nation would not satisfy this element. In my view, if intent to destroy cannot be found here, I’m not sure in what instance it can.

The final element of genocide that the acts be committed against, in whole or in part, a national, ethnic, racial, or religious group is rather easy to prove here. Around 1,200 Israelis were killed and many more were threatened or wounded physically and mentally. Israelis constitute a national group under the nation of Israel. Thus, in my view, with all the elements satisfied, I believe Hamas militants and leaders, specifically Yahwa Sinwar and Mohammed Deif, are likely liable for genocide against Israel under Article 6 of the Rome Statute.

B. Crimes Against Humanity Accusations from October 7, 2023

I also believe that Hamas militants and leaders committed crimes against humanity under Article 7 of the Rome Statute in their attacks on Israel on October 7, 2023. In fact, I think there is a clearer pathway to holding Hamas militants and leaders accountable for crimes against humanity than genocide regarding the October 7, 2023 attacks. There are eleven types of acts listed in Article 7 that constitute crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”11 Of the 11 acts listed, Hamas units appear clearly liable for two: murder and rape.12 I detailed above that 1200 people were brutally murdered by Hamas units. It is also widely believed that these attacks were specifically planned and ordered by powerful Hamas leaders, Yahwa Sinwar and Mohammed Deif.13 While investigation is needed to clarify the exact roles these two leaders played in the October 7, 2023 attacks, the nature of the attacks were clearly planned and organized.14 Thus, the murders committed by Hamas militants on October 7, 2023 appear to also satisfy the “widespread and systematic attack” requirement of Article 7 of the Rome Statute.

Furthermore, Israeli Police are currently investigating sexual violence that occurred during the attacks, and “have collected more than 1,000 statements and more than 60,000 video clips related to the attacks that include accounts from people who reported seeing women raped.”15 One paramedic, tasked with searching Kibbutz Be’eri for anyone still alive after the attacks, described a gruesome scene when he found a murdered teenage girl lying face down in a home:

Her pants are pulled down toward her knees and there’s a bullet wound on the back side of her neck near her head […] There’s a puddle of blood around her head and there’s remains of semen on the lower part of her back.16

Thus, it appears clear that rape and severe sexual violence were part of the October 7 attacks. Furthermore, as mentioned in the previous paragraph, the sheer size and organization of these attacks indicates their widespread and systematic nature. Thus, while it is admittedly a bit more difficult to prove that the October 7, 2023 attacks constitute genocide under the Rome Statute, it seems more clear that at the very least, crimes against humanity, committed by Hamas units, occurred during the October 7 attacks on Israel; Hamas leaders, Yahwa Sinwar and Mohammed Deif, are the likely leading subjects of guilt for these crimes.

C. War Crimes Accusations from October 7, 2023

Hamas units and their leadership may also be responsible for war crimes under Article 8 of the Rome Statute. Article 8 states that “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”17 Of the defined war crimes in Article 8(2), I argue that Hamas militants and leadership should be liable for “wilful killing” under Article 8(2)(a)(i) and for the “taking of hostages” under Article 8(2)(a)(viii).18 As mentioned throughout this comment, the October 7 attacks were clearly planned, with the likely masterminds being Yahwa Sinwar and Mohammed Deif. Furthermore, Hamas militants were clearly involved in wilful killing, especially considering the sheer amount of Israeli deaths as a result of their attacks. Additionally, 240 hostages were reportedly taken on October 7.19

Furthermore, Hamas units and leadership are likely liable under Article 8(2)(b)(i) of the Rome Statute—“Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”—and Article 8(2)(b)(xxii), which specifies as a war crime:

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Article 7(2)(f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.20

Among the 1,200 people reportedly killed on October 7, many were civilians.21 Furthermore, the evidence for rape is previously presented above in this comment. Thus, for these reasons, it appears that these war crime violations as specified by the Rome Statute may have also occurred.

D. Post October 7

Aside from the October 7 attacks, Hamas units and leadership may be plausibly liable for using human shields throughout the current conflict with Israel. Article 8(2)(b)(xxiii) of the Rome Statute specifies that the use of “human shields” is a war crime.22 Specifically, the article states that the following is a war crime: “Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.”23 Regarding Hamas, Israel Defense Forces (oPt) have been outspoken accusing Hamas of using human shields. According to the oPt, Hamas operates military networks through a tunnel system that is placed under civilian areas and structures.24 Furthermore, the oPt has released infographics depicting what they claim to be proof that key military locations have been placed under civilian structures, such as hospitals.25 Jason Willick of the Washington Post argues that Hamas’ use of human shields “poses agonizing moral dilemmas for anyone concerned about protecting civilian lives.”26 Willick couples this with the fact that Hamas leaders and officials have released statements indicating a willingness to sacrifice civilians lives in favor of achieving political objectives.27 Regarding the tunnel network, he states that “One official of the terrorist group, Moussa Abu Marzook, recently stressed that Gaza’s tunnel network is for protecting Hamas fighters and declared the United Nations responsible for protecting Gazan civilians.”28 All of this indicates that an argument certainly exists to prosecute Hamas leaders for employing human shields throughout this conflict. However, a further investigation is certainly necessary to determine whether the evidence presented by the oPt is credible. If so, it appears that Hamas, and specifically its leaders, are likely also liable for the war crime of using human shields.

III. Israel

A. Self-Defense and Governing Law To Which Israel Must Adhere

While in some respects, it is apparent that Hamas units and its leadership committed some variation of international humanitarian law (IHL) and Rome Statute violations on October 7, 2023, Israel’s liability under the Rome Statute is less clear cut. Regarding Israel’s response to the atrocities committed, a common point of discourse is to assert that Israel has the right to retaliate in self-defense to the crimes committed against them. Article 51 of the U.N. Charter includes self-defense provisions:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.29

However, it must be noted that in responding in self-defense, Israel is still subject to IHL rules stipulated in the Fourth Geneva Convention of 1949. Moreover, regardless of crimes committed by the other side of a conflict, war crimes are not permitted even if done in retaliation. This means that IHL laws are non-reciprocal, and violations “can never be justified through claims that another party has committed violations.”30 For example, Israel would not have the right to commit war crimes in their conflict against Hamas merely because Hamas has committed war crimes against them.

B. Accusations of Rome Statute Violations Made Against Israel

Several of Israel’s actions in the weeks following the October 7, 2023 attacks have been accused as war crimes. First among Israel’s actions accused of constituting war crimes have been widespread attacks through rocket fire and bombings that have killed thousands of Palestinian civilians, including children.31 Such attacks may potentially be prosecuted under a number of provisions in Article 8 of the Rome Statute. Each of these provisions are listed here:

Article 8(2)(a)(i): Wilful killing.
Article 8(2)(a)(iii): Wilfully causing great suffering, or serious injury to body or health.
Article 8(2)(b)(i): Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.
Article 8(2)(b)(ii): Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.
Article 8(2)(b)(iv): Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Article 8(2)(b)(ix): Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.32

Whenever there are civilian deaths, it is important to scrutinize whether any war crimes have occurred under the Rome Statute. However, just the fact that civilians have died does not mean that war crimes have been committed. Key to determining whether war crimes occurred is an investigation determining whether Israel distinguished between civilians and military personnel and objects in their attacks. As such:

A full investigation is required to learn facts that can reveal whether Israel distinguished between civilian and military objects and took the precautions required by law for each attack to minimize harm to civilians and civilian structures and to ensure that its attacks are proportionate.33

This means that even if military personnel and civilians are distinguished between before an attack, an attack may still be a crime under the Rome Statute if the amount of civilians killed is disproportionate to the value of the military objective.

Furthermore, an investigation is necessary to determine whether affected civilian structures were protected by IHL. Cordula Droege, Chief Legal Officer of the International Committee of the Red Cross, highlights that these structures lose this protection “[I]f they are used outside of their humanitarian function to commit acts harmful to the enemy.”34 If Hamas

has employed a “human shields” tactic and placed military functions in or closely surrounding protected civilian buildings,
Israel in good faith targeted such buildings in an attempt to suppress such military functions, and
Israel’s attacks were proportionate to their perceived threat and military objectives,

Israel would have a strong argument that these attacks on the Gaza Strip are not war crimes. As it stands now, based on the evidence that is available, it does not appear that Israel is liable for these Rome Statute violations for their rocket fire in this conflict.

Furthermore, there are reports that Israel has cut off food, water, electricity, and fuel from reaching the people of the Gaza Strip and is accused of blocking humanitarian relief from reaching those in need.35 If prosecuted, this would fall under Article 8(2)(b)(xxv) of the Rome Statute. This provision defines as a war crime the act of “Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions.”36 Similar to the discussion in the previous paragraph, the reports on Israel’s siege on the Gaza Strip must be investigated to determine whether Israel distinguished civilians from military personnel and objects. Tom Dannenbaum has pointed out that despite the presence of Hamas fighters in Gaza who lack civilian protection as a whole, “the population of Gaza is a civilian population.”37 He further states the following:

Civilians do not lose their protected civilian status by declining to leave their homes or their homeland, because such a declination does not amount to participating directly in hostilities […] As such, any operation targeted at the population of Gaza as a whole is an operation targeted at a civilian population, regardless of whether warnings are provided.38

Thus, a siege on the entire population of Gaza would be a siege on protected civilians, regardless of the presence of Hamas fighters and personnel in the area. A further investigation would have to definitively prove that a true and complete siege on food, water, electricity, and food has occurred in order to conclude that a war crime has occurred under Article 8(2)(b)(xxv) of the Rome Statute.

Finally, Israel has been accused of wrongfully displacing many Gaza Civilians. If prosecuted, this would fall under Article 8(2)(a)(vii) of the Rome Statute. Article 8(2)(a)(vii) lists “unlawful deportation or transfer or unlawful confinement” as a war crime. Under Article 49 of the Fourth Geneva Convention, displacement of civilians is only permitted if it is done to protect the security of civilians or if such displacement is required because of imperative military reasons.39 Even then, displaced civilians should be allowed to return as soon as possible.40 Late October reports indicated that Israel’s military warned Gaza residents to move south in Gaza for their own safety. These warnings also included a message that should residents not move south, they risked being identified as “accomplices in a terrorist organization.”41 More recently, in the middle of November, civilians were warned to evacuate certain areas in south Gaza for their safety.42 Such warnings were issued by dropping leaflets into these areas specifying these warning, and by phone alerts released by the Israeli military.43 The United Nations Relief Works Agency for Palestine Refugees in the Near East stated that as of November 18, 2023, 1.7 million people had been displaced along the Gaza Strip.44 The sheer size of this number raises concerns and merits investigation to ensure that it was necessary for the Israeli military to displace these civilians as the conflict endures. Also, Israeli forces must show good faith efforts to return individuals as soon as possible, if practicable. As it stands now, it does not appear that Israeli forces have committed this war crime, despite the large number of Palestinian civilians that have been displaced; however, a further investigation may be warranted should new evidence or circumstances arise.

IV. Conclusion

Since Hamas’ surprise attack on Israel on October 7, 2023, numerous people—including politicians, diplomats, journalists, human rights groups, protestors, and others—have asserted accusations of various crimes committed, or being committed, as a result of this conflict in the Middle East. This comment has examined the crimes of genocide, crimes against humanity, and war crimes as specified in Articles 6, 7, and 8 of the Rome Statute in an effort to analyze such assertions against both sides of the conflict. Especially regarding the attack carried out by Hamas leaders, officials, and militants on October 7, 2023, it appears that Hamas has perpetrated these violations of the Rome Statute. Regarding Israel’s military response, there is less presently available evidence, and thus, it is less certain whether any violations to the Rome Statute have been committed. In many instances, more research is necessary to reach a definitive conclusion regarding potential genocide, war crimes, or crimes against humanity violations of the Rome Statute committed during the current conflict in the Middle East.

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

1.
Jason Burke, A Deadly Cascade: How Secret Hamas Attack Orders Were Passed Down at Last Minute, The Guardian, Nov. 7, 2023, available online. ↩
2.
Id. ↩
3.
Israel Revises Down Toll From October 7 Attack to Around 1,200, Al Jazeera, Nov. 10, 2023, [hereinafter Israel Revises Down Toll], available online. ↩
4.
Hamas Had Not Planned to Attack Music Festival, Israeli Report Says, Al Jazeera, Nov. 18, 2023, available online. ↩
5.
Burke, supra note 1. ↩
6.
Id. ↩
7.
Rome Statute, Art. 6. ↩
8.
Burke, supra note 1. ↩
9.
The Covenant of the Islamic Resistance Movement (Aug. 18, 1988), available online (trans.). ↩
10.
Nicole Narea & Sigal Samuel, How to Think through Allegations of Genocide in Gaza, Vox, Nov. 13, 2023, available online. ↩
11.
Rome Statute, supra note 7, at Art. 7. ↩
12.
Id. ↩
13.
Burke, supra note 1. ↩
14.
Id. ↩
15.
Jake Tapper & Kirsten Appleton, Israel Investigates Sexual Violence Committed by Hamas as Part of October 7 Horror, CNN, Nov. 19, 2023, available online. ↩
16.
Id. ↩
17.
Rome Statute, supra note 7, at Art. 8. ↩
18.
Id. ↩
19.
Burke, supra note 1. ↩
20.
Rome Statute, supra note 7, at Art. 8. ↩
21.
Israel Revises Down Toll, supra note 3. ↩
22.
Rome Statute, supra note 7, at Art. 8. ↩
23.
Id. ↩
24.
Peter Beaumont, What Is a Human Shield and How Has Hamas Been Accused of Using Them?, The Guardian, Oct. 30, 2023, available online. ↩
25.
Id. ↩
26.
Jason Willick, We Can’t Ignore the Truth that Hamas Uses Human Shields, Wash. Post, Nov. 14, 2023, available online. ↩
27.
Id. ↩
28.
Id. ↩
29.
U.N. Charter, Art. 51 ↩
30.
Clive Baldwin, HRW, How Does International Humanitarian Law Apply in Israel and Gaza? (Oct. 7, 2023), available online. ↩
31.
Id. ↩
32.
Rome Statute, supra note 7, at Art. 8. ↩
33.
Len Rubenstein, The Rules of War and Human Rights in the Israel–Hamas War, JHSPH (updated Oct. 27, 2023), available online. ↩
34.
Christian Edwards, Have War Crimes been Committed in Israel and Gaza and What Laws Govern the Conflict?, CNN, Nov. 16, 2023, available online. ↩
35.
Id. ↩
36.
Rome Statute, supra note 7, at Art. 8. ↩
37.
Tom Dannenbaum, The Seige of Gaza and the Starvation War Crime, Just Security (Oct. 11, 2023), available online. ↩
38.
Id. ↩
39.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287 (adopted Aug. 12, 1949, entered into force Oct. 12, 1950), available online. ↩
40.
Id. ↩
41.
Nidil Al-Mughrabi, New Israeli Warning to Gaza Residents as Aid Trickles In, Reuters, Oct. 22, 2023, available online. ↩
42.
Israel “Not Successful” in Minimizing Gaza Civilian Casualties: Netanyahu, Al Jazeera, Nov. 17, 2023, available online. ↩
43.
Id. ↩
44.
Situation in the Gaza Strip and the West Bank, Including East Jerusalem, Report #33, UNRWA (Nov. 19, 2023), available online. ↩

Pilgrim
52274
February 20, 2024
7:33 pm

Palestinian Statehood Under the Montevideo Convention: An Unconventional Approach

I. Introduction

For the International Criminal Court (ICC) to have jurisdiction over the situation in Gaza and Israel after the Hamas terror attacks of October 7, 2023, Palestine must be a State.1 The Montevideo Convention on the Rights and Duties of States (Montevideo Convention) provides a four-element test for Statehood.2 To be a State under the Montevideo Convention, it must possess

a “permanent population”;
a “defined territory”;
a “government”; and
the “capacity to enter into relations with the other states.”3

Under a liberal reading of Montevideo Convention, Palestine could potentially be a State but for being bound by the Oslo Accords under the Palestinian Authority (PA). The Oslo Accords directly negate the PA’s ability to satisfy three of the four elements.

Unlike the PA, however, Hamas is not bound by the Oslo Accords. Somewhat counterintuitively, this means Palestine has a better chance of being recognized as a State under the Montevideo Convention if Hamas was considered the government of Palestine instead of the PA. While recognizing Hamas as the “true” government of Palestine would be undesirable in virtually every other way, it plots a counterintuitive path the ICC could take to hold perpetrators accountable for their actions.4

This comment analyzes the four Montevideo Convention elements individually and in the aggregate as they apply to Palestine. More concretely, it evaluates how they would apply to a Palestine governed by the PA bound by the Oslo Accords versus a Palestine governed by Hamas unbound by the Oslo Accords. The comment concludes with a consideration of the barriers to Palestinian Statehood, even if Hamas was considered the government.

It should be noted at the outset that the majority of this analysis relies on the state of affairs immediately preceding October 7th, as the events since then cast serious doubts as to the existence of Hamas as a going concern. Through the following analysis, though, it will become clear that Palestine has a better chance at Statehood under a liberal reading of the Montevideo Convention if Hamas was considered the government than it does under the PA. Before it is appropriate to delve into that evaluation, however, context must be provided in the way of background.

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

has “power to assert [a] monopoly over the exercise of legitimate physical violence within a territory” and
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.
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.
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.
Id. ↩
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.
See generally Pre-Trial Decision, supra note 1. ↩
6.
See id. at 13–14. ↩
7.
Id. at 50. ↩
8.
Id. ↩
9.
Id. at 58, 59. ↩
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.
Pre-Trial Decision, supra note 1, at 40 n. 266. ↩
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.
Montevideo Convention, supra note 2, at Art. 1. ↩
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.
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.
Bachmann & Prazauskas, supra note 10, at 405 quoting Malcolm D. Evans Ed., International Law 217 (2014), paywall. ↩
17.
What are Area A, Area B, and Area C in the West Bank?, Anera, available online (last visited Nov. 26, 2023). ↩
18.
Id. ↩
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.
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.
Bachmann & Prazauskas, supra note 10, at 405. ↩
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.
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.
Montevideo Convention, supra note 2, at Art. 1. ↩
25.
Bachmann & Prazauskas, supra note 10, at 405. ↩
26.
Id. (internal quotations omitted). ↩
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.
The Covenant of the Islamic Resistance Movement (Aug. 18, 1998) [hereinafter Hamas’s Covenant], available online (trans.). ↩
29.
Kali Robinson, What Is Hamas?, Council on Foreign Rel. (Oct. 31, 2023), available online. ↩
30.
The Congo Crisis, Encyclo. Britannica, available online (last visited Nov. 26, 2023). ↩
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.
Oslo I, supra note 22, at Art. 9. ↩
33.
Tal Becker, International Recognition of a Unilaterally Declared Palestinian State: Legal and Policy Dilemmas, JCPA, available online (last visited Nov. 29, 2023). ↩
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.
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.
Robinson, supra note 29. ↩
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.
Montevideo Convention, supra note 2, at Art. 1. ↩
39.
Bachmann & Prazauskas, supra note 10, at 409–10. ↩
40.
Id. at 408. ↩
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.
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.
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.
Id. ↩
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.
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.
Pre-Trial Decision, supra note 1, at 18. ↩
48.
See generally Hamas’s Covenant, supra note 28. ↩

AA375
52275
February 20, 2024
7:40 pm

The Israel/Hamas Situation Through the Lens of the ICC

Introduction

The International Criminal Court (ICC) was established to investigate, prosecute, and try individuals for the most serious crimes, namely the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.1 The ICC has a responsibility to tackle situations of high gravity affecting the interests of the international community. The ongoing situation between Israel and Hamas satisfies the threshold of international significance as it has received international attention including a G.A. vote by 153 countries calling for an immediate humanitarian ceasefire.2 There is also a credible basis for the ICC to pursue a preliminary investigation to the crimes committed by both Hamas and Israeli leadership.

On October 7th, Hamas launched an attack against Israeli military and civilians resulting in the death of approximately 1,200 people and the taking of 240 hostages—the deadliest attack against Jewish people since the Holocaust.3 There is a clear basis for the Office of the Prosecutor (OTP) to pursue charges against Hamas for war crimes, crimes against humanity, and genocide. However, the IDF’s increased aggression in Palestinian territory since October 7th has also been sharply criticized and merits a detailed assessment. This paper will argue that the OTP has sufficient evidence to pursue at minimum a preliminary investigation against Israeli leadership for war crimes and crimes against humanity.

Since the events of October 7th, the IDF has engaged in aggressive retaliation consisting of a military ground offensive, a humanitarian blockade, and a non-stop bombing campaign. According to NBC News, 1.9 million Palestinians have been displaced and more than 18,000 people have been killed in the ongoing conflict.4 In roughly two months, the death toll has amounted to 61% civilian casualties, an average higher than that of all conflicts in the world in the second half of 20th century.5 The IDF has also reportedly been using prohibited warfare weapons including white phosphorus, which they deny.6 The disproportionate attacks by the IDF and the nature of their military operation has transcended necessity and implicates war crimes pursuant to Article 8 of the Rome Statute and crimes against humanity pursuant to Article 7.7

Prime Minister Benjamin Netanyahu has firmly supported Israeli military operations and has proclaimed that there will be no ceasefire until all the hostages are released.8 As Prime Minister in charge of coordinating sensitive security and foreign affairs, he bears responsibility of IDF crimes through his leadership. Another individual who can be held responsible at the ICC for crimes committed by the military is Israeli’s Defense Minister Yoav Gallant. By pursuing a preliminary investigation regarding the crimes committed by Israel, the ICC will demonstrate to the world that it does not condone the impunity for crimes committed within the territory of States Parties.

I. Individual Responsibility/Responsibility of Commanders

The OTP does not prosecute States at large, so in order for the OTP to bring charges forward, they must be attributed to one or more individuals who are liable for the crimes committed. In this case, Netanyahu and Gallant can be prosecuted in their capacity as government leaders during the situation. The Court has jurisdiction over Netanyahu through individual responsibility pursuant to Article 25(3)(b) of the Rome Statute.9 Article 25(3)(b) imposes responsibility and liability for punishment if the individual orders, solicits, or induces the commission of a crime that occurs or is attempted.10 Netanyahu has solicited and induced the commission of the ground invasion, blockade, and bombings.11 As leader, he has accepted foreign aid in the form of money and weapons that are used to carry out Israeli attacks. He also uses his authority in negotiations with foreign powers to garner international support for military actions, including those that have surpassed proportionality.

Moreover, Netanyahu satisfies the mental element component as well pursuant to Article 30, which requires intent and knowledge.12 He openly debriefs and informs the public of IDF plans and strategies during press conferences, demonstrating that he has knowledge of the aggressions and tactics. In one of his press conferences, for example, he informed the public of plans for over one million Gazan civilians to move to the south of the city prior to the planned ground invasion.13

Additionally, Netanyahu is operating with the intent for the IDF to strike Gaza and is aware of the consequences of those actions. He relays the information to the public regarding completed military actions, including those that have surpassed proportionality. He has affirmed on several occasions that Israel will not agree to a ceasefire despite calls to do so by the international community. This demonstrates that he is not only aware of the actions but plans for the IDF to continue bombing Gaza. More recently he stated that Israel plans to take indefinite security responsibility over the territory after the war, meaning that he intends for the IDF actions to culminate in at least some degree of political annexation of the territory.14 As evidenced by his active role in coordinating Israeli security and knowledge in military operations, Netanyahu is not simply complicit in the acts of the IDF, he is responsible.

Gallant can be held liable for crimes committed by the IDF through commander responsibility pursuant to Article 28(a). As Defense Minister he is within the chain of command and oversees Israeli forces through his role of protecting and securing Israel.15 Gallant therefore has intimate knowledge of intelligence for IDF operations because of his leadership. This would include awareness of military objectives, the impact of combat, the types of weapons used by the IDF as well as their execution targets. His knowledge is further evidenced by his participation in press conferences where he details military plans. For example, shortly after October 7th, he publicly stated “I have given an order” for a “complete siege of Gaza,” meaning that innocent civilians would be denied power, food, and fuel.16 Because of Gallant’s authority and position within the military chain of command, he is responsible for widespread and systematic crimes that occur under his leadership.

II. War Crimes

Compelling evidence exists sufficient to amount to war crimes committed by the Israeli army. The crimes elaborated upon the following analysis are not an exhaustive list of war crimes that Israeli leadership can be prosecuted for. Under Article 8(2)(b)(iv), the IDF can be found to have launched excessive attacks that go beyond military necessity. They have also employed the starvation of civilians through the blockade pursuant to Article 8(2)(b)(xxv).

A. Excessive Civilian Attacks in Relation to Military Advantage

The Israeli aggression against Hamas has reached an unprecedented scale that transcends proportionality with respect to Israel’s right to self-defense under Article 8(2)(b)(iv). An argument can be made that press briefings from Israeli officials and the destruction of Gaza demonstrate Israel’s intent to conduct military operations in a manner causing overwhelming damage to civilians. Article 8 requires that the excessive damage to civilian life and/or objects be disproportionate to military advantage.17 The scale of death and loss of infrastructure in Gaza compared to Israel’s advancement in eradicating Hamas is one way of assessing proportionality. Netanyahu has publicly stated that Israel armed forces intend to eliminate Hamas and are working within the scope of international law to do so.18 However, press statements made by IDF Commanding Officer Daniel Hagari expressing an emphasis on “damage and not accuracy” speak to the contrary.19

Sources claim that as of November 2nd, the IDF dropped 25,000 tons of explosives onto the Gaza strip, an area spanning no more than 360 square kilometers.20 It is also estimated that the explosive force of the bombs dropped over Gaza is equivalent to that of two nuclear bombs.21 Israel’s incessant bombings, that only paused for a four-day ceasefire, have resulted in an estimated 18,000 Palestinian deaths.22 This statistic becomes more grave when considering the fact that about half of Palestine’s population are children.23 There are also 48,780 civilians who have been injured and have limited access to proper medical treatment.24 Yet, civilian deaths during conflicts do not in and of themselves amount to war crimes. It has been argued that the deaths of Palestinian civilians are casualties of war in an effort to eliminate extremely dangerous targets.

The principle of proportionality and necessity are at the crux of whether Israel’s actions can be successfully prosecuted as war crimes. The ICC does not have a set measurement of what is considered proportionate or necessary with respect to military advantage. As such, the assessment functions more like a balancing test, weighing the interests of weakening the opposition’s military while protecting civilians. State forces are within their right to target legitimate military objectives during conflict, but attacks meant to reach said objective may not be indiscriminate. In other words, the weapons used must be capable of being directed at the specific military objective.25

It can be argued that Israel has not been capable of directing its attacks specifically toward Hamas at least in part because 61% of those killed during the conflict have been civilians.26 Moreover, the bombs used to combat Hamas are being dropped throughout Gaza, decimating civilian infrastructure despite the fact that Hamas primarily operates through underground tunnels. It is confirmed that the IDF has bombed and destroyed U.N. facilities, schools, clinics, hospitals, and mosques including the oldest mosque in Gaza the Omari Mosque.27 The disconnect between the primary target and who is actually being killed or injured raises valid concerns with respect to proportionality.

It is estimated that Hamas has between 20,000 and 25,000 members and according to senior Israeli officials they have killed 5,000 militants as of December 6.28 The spokesperson stated that two civilians killed for every Hamas militant is a “tremendously positive ratio.”29 His data is in direct conflict with reports coming from Gaza’s Ministry of Health that put the death toll to 18,000. Regardless of whose data is accurate, the proportions of those killed during combat do not fully capture the number of Palestinians who are likely to die from the conflict, affecting proportionality. Gaza has been completely decimated, with reports by the U.N. calling it a humanitarian disaster zone.30 Disease is climbing in the region with reports of 60,000 cases of diarrhea in children under five and more than 160,000 cases of acute respiratory infections.31 Other emerging health concerns are scabies, chicken pox, and even meningitis. Due to the collapsed healthcare infrastructure, many of these illnesses could result in death. Despite not being killed directly by bombs, the deaths are still attributable to the Israel’s bombing campaign or siege and will therefore change the two to one ratio described by Israeli officials.

Even if an assessment was made using a strict numerical lens of those killed during combat, it is questionable to affirm that the death of two civilians for every one Hamas militant is proportionate. Comments by the IDF imply that the military knows and is fine with the deaths of 30,000 to 40,000 more civilians to achieve its goal of eliminating Hamas.32 In the history of the Court, the OTP investigated and charged Germain Katanga with war crimes for the deaths of 8000 civilians and the forced displacement of 600,000 people in response to a massacre perpetrated by the rival group Hemas.33 The number of civilian deaths known and accepted by both leaders during the respective military conflict are similar and validates concerns with respect to Israel’s use of force.

In the case of Ukraine and Russia, the OTP opened an investigation for war crimes, crimes against humanity, and genocide less than a month after Russia’s invasion.34 Although the exact number of civilian casualties was unclear at the outset of the situation, the U.N. High Commissioner for Human Rights (OHCHR) reported that from February 2022 to June 2023, the civilian death toll in Ukraine was 25,170.35 At the current rate of civilian loss as reported by Israel, the IDF’s actions will kill the same number of people in the time span of only four and a half months. The scale of civilian deaths in Gaza is in line with other OTP instigations and reflects grounds for a preliminary investigation of the IDF’s use of force. The sharp contrast between the number of successfully eliminated Hamas soldiers and civilians speaks to the disproportionate nature of Israeli attacks. Should numbers similar to other investigations be insufficient to question proportionality, there are other reasons to consider why the IDF’s actions are still not proportional.

Another element to consider for proportionality is the loss of Palestinian journalists during the conflict. Journalists and their families have been reportedly targeted and killed by the IDF.36 According the Associated Press, 72% of all media deaths worldwide this year have been of journalists covering the Israel–Hamas war, most of them being Palestinian journalists in the Gaza Strip.37 As of December 11, fifty-six Palestinian journalists and media workers were confirmed dead, eleven journalists were reported missing, and nineteen were reportedly arrested.38 It is worth noting that at least one journalist and several civilians were identified among the detained men who were stripped of their clothing and taken to an unspecified location by the IDF on December 8th.39 Journalists are afforded protections during armed conflicts under international law.40 Yet, Israel’s decentralized bombing of Gaza and possible targeting of journalists counters this protection. The result is that Palestinian journalists are being denied the right to share the events of the conflict from their perspective for fear of being killed. Other journalists will likely also be dissuaded from capturing the images and stories of what is unfolding on the ground because both civilians and journalists are being killed—a loss that tilts the scale of proportionality.

Lastly, Palestinians are being eviscerated at such a high rate that entire bloodlines have gone extinct. Since October 7th, forty-seven families consisting of 500 civilians were erased from Gaza’s civil registry.41 If those reports are proven true by the OTP, that means that no single member of a lineage of forty-seven families exists. This adds to the gravity of destruction that has emanated from Israel’s aggression. Admittedly, the IDF is working in conditions that make singling out Hamas difficult. Gaza is a densely populated territory with approximately two million residents before the current situation. The IDF is operating under the challenge of aiming to destabilize Hamas while Hamas exist in close proximity to Palestinian civilians and has used them as human shields.42 As one of the most advanced militaries in the world however, equipped with cutting edge surveillance technology, Israel has the means to change strategy and reduce the rate of civilian casualties.43 The difficulties of war do not exculpate Israel from its responsibility to honor international law. The unprecedented loss of Gaza’s civilian life, media, culture, and history is a serious consequence of the conflict that constitutes war crimes.

B. Intentional Starvation and Impediment of Relief Supplies

The IDF has also employed the use of starvation pursuant to Article 8(2)(b)(xxv) through the implementation of a complete blockade of electricity, fuel, medical supplies, and water in Gaza.44 On October 9th, Israel’s Defense Minister Yoav Gallant announced that the military would intentionally deprive the entire Gaza Strip, including all civilians, supplies necessary for survival. Gallant explicitly said that everything would be closed implying that no aid would be permitted to enter.45 He also affirmed that the IDF was fighting against human animals and that the military was acting accordingly.46 In addition of employing a strategy of starvation during conflict, Gallant arguably conflated Palestinian civilians with Hamas in his statement. He made no attempt to distinguish between innocent people and military operatives during the announcement. The comment garnered widespread criticism for dehumanizing the entire Palestinian community in Gaza. Although Gallant may very well have meant to refer only to Hamas, the fact he made that comment without clarification during the announcement of a military strategy affecting all civilians is at minimum problematic.

The total siege of Gaza exacerbated an already frail civilian infrastructure. A January 2023 report by U.N. agencies estimated that 58% of the Gaza Strip required humanitarian assistance and 29% of Gazan household live under extreme or catastrophic conditions.47 The U.N. Office for the Coordination of Humanitarian Affairs (OCHA) stated that 1.3 million people required food assistance and the Palestinian Water Authority noted that 90% of the water in Gaza is undrinkable.48 The OCHA assessment tells of the devastating effects of a food blockade for Gazan civilians who were already experiencing food insecurity prior to the conflict of October 7th. After the blockade, the humanitarian situation in Gaza became critical. Hospitals experienced an extreme shortage of fuel and medicine necessary to perform lifesaving operations.49 Doctors resorted to performing amputations without anesthesia as civilian loss increased. Doctors also used foil to keep premature babies alive as energy shortages cut power to incubators.50 The loss of life became even more overwhelming as hospitals were unable to keep up with dead bodies. In al-Shifa hospital, one-hundred bodies were left to decompose, both inside the hospital and in morgues that stopped functioning due to lack of electricity.51 The hospital eventually disposed of the bodies in a mass grave. Moreover, women were uniquely affected by the total siege raising gender concerns.

According to the U.N., 180 women are giving birth every day without water, painkillers, anesthesia, or medical supplies.52 As a result, women are significantly more vulnerable to succumb to complications after childbirth. Excessive bleeding after birth is dangerous to the life of a woman, and, even if she survives, the experience is physically debilitating. Additionally, because of a lack of supplies, babies are unable to adequately consume formula. There is no drinkable water necessary to mix the powder solution.53 Women have also struggled to receive basic hygiene products for their periods, further exacerbating sanitation and health issues.54 Lack of basic supplies like sanitation pads, toilet paper, or access to functioning toilets expose women to disease.55 According to the United Nations agency UNRWA, an average of 160 people sheltering in UNRWA schools are sharing a single toilet.56 Women have stated that they cope by wearing two pairs of underwear and those who are able wrap their underwear in tissue paper.57 However, due to a lack of water, they are also unable to shower when menstruating.

The combined effects of the blockade have not been sufficiently remedied by the lift which has allowed for aid trucks to enter Gaza. According to U.S. State Department spokesperson Matthew Miller, Israel needs to allow more aid into the strip.58 Although humanitarian trucks are now providing supplies, they only supply a fraction of what is necessary. On December 5th, 100 aid trucks provided 69,000 liters of fuel which is significantly less than the daily average of 170 trucks with 110,000 liters of fuel that were permitted to enter during the temporary ceasefire.59 It is unclear why the IDF will not permit more aid to enter Gaza despite the clear need. It is possible that the IDF is concerned by the possibility that Hamas will coopt the fuel that is being transported. This hesitation, however, should be no bar to increase other basic supplies from being provided such as feminine hygiene products, food, water, and medical supplies. These products are lifesaving and do not affect Israel’s military advantage. Another issue that is worthy of exploration by the OTP is whether the IDF is targeting aid trucks. The International Committee of the Red Cross confirmed that their humanitarian convoy came under fire when it was delivering supplies, an attack that is forbidden under international humanitarian law.60 There is no reason why gunfire or bombs need to be dropped near the Rafah border when the military operations are primarily taking place in northern Gaza. The IDF’s refusal to permit adequate supplies from entering Gaza, and the possible targeting of humanitarian trucks, are human rights issues that should be further explored by the OTP.

III. Crimes Against Humanity

As leaders who oversee the IDF, Netanyahu and Gallant have a responsibility to ensure that Israel’s armed forces are complying with international law. Accordingly, they can be held accountable for war crimes committed by the IDF through either individual or command responsibility. It can be argued that Israel’s demand for 1.1 million Palestinians to flee from northern to southern Gaza, or alternatively out of Palestine, constitutes crimes against humanity under Article 7(1)(d). To satisfy the elements of Article 7, it must be proven that deportation or forcible transfer of a population knowingly occurred as part of a widespread or systematic attack against civilians.61

A. Forcible Transfer of Palestinians

Following the events of October 7th, IDF spokesperson Daniel Hagari urged 1.1 million Palestinian residents of northern Gaza to flee south within 24 hours.62 He warned that the IDF planned to aggressively target the north and that the warning served to prioritize the safety of Palestinians. In his statement Hagari affirmed that the move would be temporary and that the IDF would allow Palestinians to return home once hostilities subsided.63 The call to move Palestinians was effectively part of a widespread and organized plan to pressure part of an entire population to be transferred out of a region. Despite the goodwill sentiment portrayed in the public service announcement, Hagari and IDF commanders knew or should have known that their demand was extremely dangerous for Palestinians.

Twenty-four hours is an unrealistic and hastened timeframe to expect over one million people to collectively leave a densely populated area with no sense of when they will return. This demand glosses over many important aspects of travel that will impact the feasibility of people being able to successfully leave. For one, the infrastructure of Gaza is not equipped for a mass exodus of people all at once. Roads affected by the conflict make travel with large families difficult. Additionally, not everyone has a means of transport to leave northern Gaza and, as a result, many left by foot. This is dangerous, as travel from northern to southern Gaza by foot takes at least a few hours.

The sick and the elderly are at an increased risk of succumbing to exhaustion during travel or are physically unable to make the move. This is alarming because the IDF provided no exceptions and in fact made the point that anyone who chooses not to evacuate is subject to being identified as a partner in a terrorist organization, as stated in thousands of leaflets that were dropped over northern Gaza.64 The binary option of leaving despite physical constraints which make that impossible, or being subject to brutal attack as a “partner in a terrorist organization” is no option at all. The elderly, ill, and their caretakers who remain in northern Gaza for reasons beyond their control run the risk of being targeted as de facto terrorists, stripping them of their humanity. A U.N. expert describes the bombardment and ejection orders as a blatant violation of international humanitarian law.65

The conflation of civilians and terrorists is apparent from the recent detention of men in Beit Lahia. In early December, dozens of Palestinian men were stripped to their underwear, blindfolded, and made to kneel while detained by Israel soldiers.66 After images were uploaded to social media, people began identifying several of the detainees as their family members unaffiliated with Hamas. At least one of the civilians identified was a journalist. It is important to note the danger of conflating civilians to terrorists simply because they remain in Gaza. Israel has a responsibility to make sure that they avoid knowingly placing civilians in danger.

Subsequent to the initial call for Palestinians to leave the north, Israel set up evacuation windows and safe passageways to help people leave. Unfortunately, Gazans who were fleeing per the orders of the IDF were attacked. A convoy of vehicles carrying civilians, many of whom were children, was hit by a deadly airstrike.67 The IDF places blame on Hamas, and Hamas places blame on the IDF for the attack. An independent investigation by the OTP to verify the truth would help bring clarity as to who committed the attack. Even if the attack was executed by Hamas, the IDF could have taken additional measures to protect civilians as they embarked on the dangerous journey they urged them to take.

Human rights concerns continue to grow from the international community as the south of Gaza, a place Palestinians were told to flee to for safety, is also being bombed. As of December 4th, Israeli warplanes heavily bombarded the area around Khan Younis in the south.68 Bombing southern Gaza after it accumulated almost two million people guarantees high civilian casualties. Gaza has become unlivable and those who are displaced have nowhere to go. There is pressure for Egypt to take Palestinian refugees, but this raises potential ethnic cleansing concerns. Similar to the binary of either leaving the north or risk becoming identified as a terrorist target, Palestinians in the south are being pressured to leave their home State or risk death.

The way the situation is unfolding, the IDF’s military operations are making it impossible for Palestinians to be safe anywhere within the boundaries of the State. Netanyahu has also expressed his intent to take indefinite military control of Gaza, eliminating the possibility of an autonomous Palestinian state even after the eradication of Hamas. He made no mention of allowing displaced Gazans to return and it is unclear if he is planning to effectively annex Gaza. As a result, the temporary evacuation order could become permanent as Palestinians are pushed to seek self-preservation by never returning to Gaza. It is imperative that Israel follow international law as it advances on its military objectives, a requirement that is arguably not being met at this time.

Conclusion

The horrific attacks of October 7th against civilians in Israel need to be met with proportionate force acceptable under international law. The ICC is responsible for investigating the most serious crimes affecting the international community and the Israel–Hamas war has garnered international attention of countries around the world, 153 of which have called for a ceasefire. The disproportionate killing of civilians, the humanitarian blockade, and arguable acts of ethnic cleansing amount to war crimes that should be investigated by the OTP. As of today, there are at least 10,000 and upwards of 18,000 civilians killed during the conflict. The heavy bombing of the Gaza Strip has killed women, children, and journalists. It has decimated important civilian infrastructure and buildings including Gaza’s oldest mosque: the Omari Mosque. Civilians are still recovering from being deprived basic necessities during the complete blockade and thousands of displaced civilians worry that southern Gaza is also becoming a battleground. The ICC has the responsibility to step in and confront illegitimate actions by the IDF under the leadership of Prime Minister Benjamin Netanyahu and Israeli’s Defense Minister Yoav Gallant.

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

1.
International Criminal Court, Understanding the International Criminal Court (Mar. 12, 2021), available online, archived. ↩
2.
UN General Assembly Votes by Large Majority for Immediate Humanitarian Ceasefire During Emergency Session, UN News, Dec. 12, 2023, available online. ↩
3.
Bill Hutchinson, Israel–Hamas War: Timeline and Key Developments, ABC News, Nov. 22, 2023, available online. ↩
4.
Gaza’s Health System is “Collapsing” and Battles Intensify in the South, NBC News, Dec. 11, 2023, [hereinafter Health System is Collapsing], available online. ↩
5.
Julian Borger, Civilians Make Up 61% of Gaza Deaths from Airstrikes, Israeli Study Finds, The Guardian, Dec. 9, 2023, available online. ↩
6.
Health System is Collapsing, supra note 4. ↩
7.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Arts. 8, 7, available online. ↩
8.
Hutchinson, supra note 3. ↩
9.
Rome Statute, supra note 7, at Art. 25. ↩
10.
Id. ↩
11.
Netanyahu Says Israel is Preparing Ground Invasion of Gaza, Reuters, Oct. 25, 2023, [hereinafter Netanyahu Preparing Ground Invasion], available online. ↩
12.
Rome Statute, supra note 7, at Art. 30. ↩
13.
Netanyahu Preparing Ground Invasion, supra note 11. ↩
14.
Alexandra Sharp, Netanyahu: Israel to Take Indefinite “Security Responsibility” of Gaza, Foreign Pol. (Nov. 7, 2023), available online. ↩
15.
About Us, Ministry of Defense (Israel), available online (last visited Dec. 12, 2023). ↩
16.
Hadas Gold, Eyad Kourdi, Jonny Hallam, Ibrahim Dahman, Helen Regan & Tara John, Israeli Defense Minister Orders “Complete Siege” of Gaza, as Hamas Threatens Hostages, CNN, Oct. 9, 2023, available online. ↩
17.
Rome Statute, supra note 7, at Art. 8. ↩
18.
Dan De Luce, Peter Nicholas, Abigail Williams & Yasmine Salam, Israel Says it Wants to Destroy Hamas. But Who Would Govern Gaza After That?, NBC News, Oct. 18, 2023, available online. ↩
19.
Bethan McKernan & Quique Kierszenbaum, “We’re Focused on Maximum Damage”: Ground Offensive into Gaza Seems Imminent, The Guardian, Oct. 10, 2023, available online. ↩
20.
Euro-Med Human Rights Monitor, Israel Hits Gaza Strip with the Equivalent of Two Nuclear Bombs (Nov. 2, 2023), available online. ↩
21.
Id. ↩
22.
Mithil Aggarwal, Death and Trauma Stalk Palestinian Children, NBC News, Oct. 26, 2023, available online. ↩
23.
Linah Mohammad, Tinbete Ermyas & Ailsa Chang, Half of Gaza’s Population is Under 18. Here’s What That Means for the Conflict, NPR, Oct. 18, 2023, available online. ↩
24.
Simone McCarthy, December 9, 2023, Israel–Hamas War, CNN, Dec. 10, 2023, available online. ↩
25.
Rule 71: Weapons That Are by Nature Indiscriminate, Int’l Humanitarian L. Databases, available online (last visited Dec. 13, 2023). ↩
26.
Borger, supra note 5. ↩
27.
Pamela Falk, Israel Says These Photos Show How Hamas Places Weapons in and Near UN Facilities in Gaza, Including Schools, CBS News, Nov. 8, 2023, available online. ↩
28.
Foreign Terrorist Organizations—Hamas, National Counterterrorism Center, (updated Sep. 2022), available online (last visited Feb. 14, 2024). ↩
29.
Mitchell McCluskey & Richard Allen Greene, Israel Military Says 2 Civilians Killed for Every Hamas Militant is a “Tremendously Positive” Ratio Given Combat Challenges, CNN, Dec. 6, 2023, available online. ↩
30.
“Humanitarian Disaster Zone”: Gaza Hospital Capacity Decimated—WHO, UN News, Dec. 12, 2023, available online. ↩
31.
Id. ↩
32.
McCluskey & Greene, supra note 29. ↩
33.
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07, Prosecutor’s Opening Statement, 11 (ICC TC II, Nov. 24, 2009), available online. ↩
34.
Situation in Ukraine, ICC-01/22, ICC, available online (last visited Dec. 12, 2023). ↩
35.
United Nations Office of the High Commissioner for Human Rights, Civilian Casualties in Ukraine from 24 February 2022 to 30 June 2023 (Jul. 7, 2023), available online. ↩
36.
Journalist Casualties in the Israel–Gaza War, CPJ, available online (last visited Dec. 19, 2023). ↩
37.
Journalists’ Rights Group Counts 94 Media Workers Killed this Year, Most of Them in Gaza, AP, Dec. 8, 2023, available online. ↩
38.
Journalist Casualties in the Israel–Gaza War, supra note 36. ↩
39.
Peter Beaumont, Footage Shows IDF Parading Scores of Palestinian Men Around in Underwear, The Guardian, Dec. 8, 2023, available online. ↩
40.
Article 79—Measures of Protection for Journalists, Int’l Humanitarian L. Databases, available online (last visited Dec. 25, 2023). ↩
41.
47 Palestinian Families Erased from Civil Registry in Gaza Under Israel’s Genocidal Aggression, WAFA, Oct. 15, 2023, available online. ↩
42.
NATO StratCom, Hamas’ Use of Human Shields in Gaza (May 14, 2019), available online. ↩
43.
How Big is Israel’s Military and How Much Funding Does it Get from the US?, Al Jazeera, Oct. 11, 2023, available online. ↩
44.
Sanjana Karanth, Israeli Defense Minister Announces Siege On Gaza To Fight “Human Animals”, Huff. Post, Oct. 9, 2023, available online. ↩
45.
Id. ↩
46.
Id. ↩
47.
United Nations Office for the Coordination of Humanitarian Affairs, Humanitarian Response Plan 5 (Jan. 2023), available online. ↩
48.
Tom Perry & Crispian Balmer, Gaza Strip: Devastated by Conflict and Israel’s Economic Blockade, Reuters, Oct. 12, 2023, available online. ↩
49.
Kathleen Magramo, Jack Guy, Ed Upright, Adrienne Vogt, Eric Levenson & Elise Hammond, Israel–Hamas War, CNN, Nov. 8, 2023, available online. ↩
50.
Bel Trew & Andy Gregory, Tin Foil Used to Keep Babies Alive with Incubators Losing Power at Gaza Hospital—as Tanks Surround Outside, The Independent, Nov. 13, 2023, available online. ↩
51.
Id. ↩
52.
Press Release, S.C., SC/15503, Two Thirds of Gaza War Dead Are Women and Children, Briefers Say, as Security Council Debates Their Plight (Nov. 22, 2023), available online. ↩
53.
Id. ↩
54.
Nadda Osman & Lubna Masarwa, Israel–Palestine War: Women in Gaza Struggle to Find Hygiene Products Amid the Siege, Mid. East Eye, Nov. 16, 2023, available online. ↩
55.
Id. ↩
56.
Situation in the Gaza Strip and the West Bank, Including East Jerusalem, Report #25, UNRWA (Nov. 8, 2023), available online. ↩
57.
Osman, supra note 54. ↩
58.
Humeyra Pamuk & Daphne Psaledakis, Israel Not Doing Enough to Allow Fuel, Aid Into Gaza—US, Reuters, Dec. 5, 2023, available online. ↩
59.
Id. ↩
60.
Magramo, supra note 49. ↩
61.
Rome Statute, supra note 7, at Art. 7. ↩
62.
Pamela Falk, Imtiaz Tyab, Tucker Reals & Faris Tanyos, Israel Warns Northern Gaza Residents to Leave, Tells UN 1.1 Million Residents Should Evacuate Within 24 Hours, CBS News, Oct. 23, 2023, available online. ↩
63.
Id. ↩
64.
Nadda Osman, Israel–Palestine War: Israel to Identify Civilians as “Terrorist Partners” if They Stay in Northern Gaza, Mid. East Eye, Oct. 21, 2023, available online. ↩
65.
Id. ↩
66.
Beaumont, supra note 39. ↩
67.
Bethan McKernan & Sufian Taha, Gaza Civilians Afraid to Leave Home After Bombing of “Safe Routes”, The Guardian, Oct. 15, 2023, available online. ↩
68.
Israel Continues Bombardment, Ground Assault in Southern Gaza, CBS News, Dec. 4, 2023, available online. ↩

Jordan Murphy
52276
February 20, 2024
7:47 pm

The Claim of Genocide Filed Against Israel: The Elements of a Genocide Charge and its Application to the Situation in Palestine

Speaking on the claim of genocide filed against Israel at the International Criminal Court (ICC) in November 2023, Palestine representative Gilles Devers asserted that the requisite criteria having been established in Gaza is not an opinion but “a reality of law.”1 Such a claim is a strong one: only two cases have resulted in genocide judgments since the establishment of the ICC. The crime of genocide under the Rome Statute necessitates one of the highest burdens of physical and mental elements in international law, corresponding to the severity of the charge. The conflict between Israel and Hamas has resulted in one of the worst crises in modern history; however, the ICC has been clear that genocide requires a high threshold of evidence demonstrating a systemic policy of extermination. This comment does not consider admissibility issues or make a determination of the existence—or lack thereof—of genocide, but rather the substance and merits of its grounds for the pre-trial stage.

I. The Claim Before the Court

The claim submitted before the ICC alleges that precedent established by the respective International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) set a basis for genocide of the Palestinian population perpetrated by Israeli Prime Minister Benjamin Netanyahu. In doing so, the complainants may also seek more symbolically to build from the momentum catalysed by the ICC’s arrest warrant for Vladimir Putin in 2023.

In the claim filed, there are two broad categories of culpable acts alleged to form grounds for a prima facie genocide charge: the directed attacks at civilians and civilian property in Gaza, and the creation of social and material conditions of life that are calculated to bring about the destruction of the Palestinian population. These physical elements are claimed to be accompanied by “dehumanizing” treatment of the Palestinian population amounting to the policy aspect of the genocide charge.

It is relevant that the specific allegation of genocide differs, and was submitted before the ICC separately, from those of other war crimes. In alleging genocide, Devers alleges that individual war crimes fall under the broad umbrella of a systematic plan to destroy the Palestinian people.

II. The Elements of Genocide Under the Rome Statute

The specific charge of genocide under Article 6 of the Rome Statute has a systematic component: the unlawful acts must be committed with “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”2 As such, establishing genocide requires a dual threshold of intent. Not only must a perpetrator intend to commit an unlawful act in violation of international humanitarian law under the Rome Statute, with the requisite knowledge of the material elements of the act, but the perpetrator must also intend that such an act be aimed at destroying—at least in part—the group.

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.
Lawyers for Gaza Victims File Case at International Criminal Court, Al Jazeera, Nov. 15, 2023, [hereinafter Lawyers for Gaza Victims], available online. ↩
2.
Rome Statute, Art. 6. ↩
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.
Al Bashir Case, ICC, available online (last visited Jan. 7, 2024). ↩
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.
Id. ↩
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.
Id. ¶ 1642. ↩
9.
Prosecutor v. Tharcisse Muvunyi, ICTR-00-55-A-T, Judgement, ¶ 29 (ICTR TC III, Feb. 11, 2010), available online. ↩
10.
Prosecutor v. Radoslav Brđanin, IT-99-36-T, Judgement, ¶ 970 (ICTY TC III, Sep. 1, 2004), available online. ↩
11.
Prosecutor v. Vidoje Blagojević and Dragan Jokić, IT-02-60-T, Judgement (ICTY TC I, Jan. 17, 2005), available online. ↩
12.
Prosecutor v. Sylvestre Gacumbitsi, ICTR-2001-64-T, Judgement, ¶ 252 (ICTR TC III, Jun. 17, 2004), available online. ↩
13.
Id. ¶ 253. ↩
14.
Id. ↩
15.
Id. ¶ 287. ↩
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.
Rome Statute, supra note 2, at Art. 6. ↩
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.
Press Release, OCHA, Data on Casualties, available online (last visited Jan. 6, 2024). ↩
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.
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.
Id. ↩
23.
Id. ↩
24.
Mohammed Hussein & Mohammed Haddad, Know Their Names, Al Jazeera (Dec. 12, 2023), available online. ↩
25.
Al-Mughrabi, supra note 20. ↩
26.
Michelle Nichols, UN Chief Says Gaza Becoming a “Graveyard for Children”, Reuters, Nov. 6, 2023, available online. ↩
27.
Prosecutor v. Brđanin, supra note 10, ¶ 691. ↩
28.
Prosecutor v. Milomir Stakić, IT-97-24-T, Judgement, ¶ 517 (ICTY TC II, Jul. 31, 2003), available online. ↩
29.
Id. ↩
30.
Prosecutor v. Jean-Paul Akayesu, ICTR-97-20-T, Judgement and Sentence, ¶ 52 (ICTR TC I, Dec. 6, 1999), available online. ↩
31.
Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, ¶ 506 (ICTR TC I, Sep. 2, 1998), available online. ↩
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.
Israeli Defence Minister Orders “Complete Siege” on Gaza, Al Jazeera, Oct. 9, 2023, [hereinafter Complete Siege], video. ↩
34.
Public Health Situation Analysis, supra note 32. ↩
35.
Id. ↩
36.
Prosecutor v. Gacumbitsi, supra note 12, ¶ 287. ↩
37.
Prosecutor v. Mikaeli Muhimana, ICTR-95-1B-T, Judgement and Sentence, ¶ 496 (ICTR TC III, Apr. 28, 2005), available online. ↩
38.
Ildéphonse Nizeyimana v. The Prosecutor, ICTR-00-55C-A, Judgement, ¶ 122 (ICTR AC, Sep. 29, 2014), available online. ↩
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.
Id. ¶ 470. ↩
41.
Complete Siege, supra note 33. ↩
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.
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.
Prosecutor v. Popović et al., supra note 39, ¶ 470. ↩
45.
Prosecutor v. Callixte Nzabonimana, ICTR-98-44D, Judgement and Sentence, ¶ 92 (ICTR TC III, May 31, 2012), available online. ↩
46.
Prosecutor v. Radislav Krstić, IT-98-33-A, Judgement, ¶ 34 (ICTY AC, Apr. 19, 2004), available online. ↩
47.
Lawyers for Gaza Victims, supra note 1. ↩
48.
Prosecutor v. Krstić, supra note 46, ¶ 34. ↩
49.
Hussein & Haddad, supra note 24. ↩
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. ↩

freyaschmidt
52277
February 20, 2024
7:54 pm

How Can Israel Ensure Proportionality in its Response to Hamas’ Attacks?

I. Introduction

With Hamas’ attack on Israel on October 7, 2023, the situation that has been smoldering for decades has entered the next round. It is accompanied by countless legal questions that revolve around the legal classification of Palestine and thus the admissibility of the International Criminal Court (ICC) and the role of international (criminal) law in the conflict. The latter will be dealt with in this comment. The central theme revolves around the international legal perspective on proportionality and the means by which Israel can adhere to the boundaries of proportionality within the context of the right to self-defense. For this purpose, the comment takes a look at the origins of self-defense and proportionality as well as different ideas on how to define proportionality. Following a closer view of the understanding of proportionality in international law, coupled with the application of a predefined analysis framework to a recent military operation conducted by Israel, the comment aims to elucidate strategies for aligning with the criteria of proportionality in the defense against illegitimate attacks.

The following remarks are not able to present a comprehensive picture of the situation in Gaza, let alone address how the situation could be ended and who is right or wrong overall. For this reason, the issue of the criminal accountability of Hamas leaders is excluded, and the extent to which Israel might have engaged in offenses under the Rome Statute is not addressed. Instead, the analysis of self-defense assumes that the actions of Israeli decision-makers are in principle covered by articles of the Rome Statute and then moves on to the question of self-defense and proportionality.

With the discussion of self-defense and proportionality come several sub-issues like the question about whether a state can legally react with military force to an armed attack of a non-state actor.

Not only at this point but also in various other issues this comment addresses, the legal status of Palestine becomes relevant. For the sake of the analysis of the lawfulness of Israel’s actions, I assume the ICC’s jurisdiction and analyze the situation as if the rules of international law and especially the Rome Statute would apply.

II. Recent Situation

To analyze whether Israel has a right to self-defense and ensured proportionality in its response, one must take a closer look at the events beginning in the early morning of October 7, 2023. Because of the lack of objective sources due to the ongoing situation in Gaza, some data may differ from others or might not be completely ensured. These sources will be marked as such.

Together with the activation of air raid sirens in southern and central Israel, the leader of the Hamas’ military wing, Muhammad Deif, announced the start of “Operation Al-Aqsa Flood” in an online video.1 In this video, he urged Palestinians to attack Israeli settlements with any possible weapon.2 The Israel Defense Forces (IDF) claims that 2,200 rockets were fired toward central and southern Israel.3 Armed Hamas militants drove into 22 areas outside the Gaza Strip and shot Israeli civilians and soldiers. Some sources speak of 1,400 dead Israelis and 200 people kidnapped, other sources claim roughly 1,200 dead and about 240 hostages taken by Hamas.4

In addition to the missiles and the ground mission, Supernova Music Festival near Re’im secular kibbutz was attacked.5 In this massacre, at least 260 people were killed, and many others abducted.6 Israel, on the other hand, reacted almost immediately with air strikes. On the next day, they formally declared a state of war and emphasized their intent to end Hamas’ leadership over the Gaza Strip and eradicate their military potential.7

Since then, both parties have continued to launch different sorts of attacks from or into the Gaza Strip, including air strikes and fights on the ground. The situation is especially sensible since Gaza is dependent on Israel for the supply of electricity, fuel, and food.8 Two days after Hamas launched the initial attacks in Israel, Yoav Gallant, Defense Minister of Israel, announced a complete blockade of the Gaza Strip, explaining: “We are fighting human animals and we are acting accordingly.”9

III. Right to Self-Defense

A. What Constitutes Self-Defense

1. Self-Defense in International Law

Self-defense in international law is recognized in various treaties. It has its origins in the U.N. Charter, Article 51. Self-defense is one of the exceptions to the prohibition of the use of armed force, recognized by the U.N. Charter.10 Chapter VII of the U.N. Charter provides a comprehensive list of the exceptions to that Article:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.11

Self-defense is also mentioned in the Rome Statute:

1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:

(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.12

Although the wording, as well as the focus (state responsibility against individual criminal accountability), is different, the Rome Statute does not aim to overrule the U.N. Charter.13 Moreover, the text in the Rome Statute is a tailored application of the principle of self-defense on individual liability and still works with the framework set forth by the U.N. Charter.14

Whereas the Rome Statute mentions proportionality as a measurement for limiting the right to self-defense, the U.N. Charter uses necessity as a threshold to outweigh the competing interests.15 These are two of the four basic principles in international law to minimize the impact of war on civilians and non-combatants.16 Remaining are “humanity,” which urges the actors to limit the war’s impact on human security and health, and distinction, which describes the obligation to differentiate between civilians and civilian objects on the one side, and combatants and military objects on the other side.17 These principles emerged out of the jus in bello, the international law about the conduct in war.18 It describes the threshold of whether war crimes are committed.19 Especially in the case of Israel, it is important to notice that meeting the requirements of the counterpart of jus in bello, jus ad bellum, which means the legality of going to war, does not justify any following war conduct.

More concrete: assuming international law ensures Israel a right to self-defense, which the analysis will focus on later, does not mean that how Israel uses the right to self-defense is justified in itself. A careful distinction between these two principles is needed to determine, first of all, whether Israel has a right to self-defense (jus ad bellum), and secondly, whether they used that right according to the principle of proportionality (jus in bello). Consequently, self-defense appears in both scenarios, in the law of going to war and in the law about the conduct in war.20

The U.N. Charter provides four elements that constitute self-defense.21 Firstly, all states have an inherent right to self-defense.22 Secondly, this right can be exercised either individually or collectively.23 Thirdly, self-defense is triggered by an armed attack (substantial force required).24 Lastly, self-defense has a timely component.25 Force can only be used until the Security Council intervenes.26 Although the four elements can be understood as a definition of self-defense, the complexity of situations in which self-defense might be required led to a more flexible handling of this right.

Under the Rome Statute, self-defense is addressed primarily in the context of war crimes. As the headline of Article 31 suggests, it excludes criminal liability. This means that even if a person fulfills all the required elements of Article 8—War Crimes, they are not liable to prosecution if the requirements for self-defense are met.

The idea behind self-defense eradicating criminal liability lies in the concept of the right to protect another right that was threatened.27 The right derived from the individual’s “right to life,” which is prominently ensured in Article 6 of the International Covenant on Civil and Political Rights.28 It is based on a principle state’s duty to protect its citizens and uphold their rights.29 The right to self-defense applies in urgent situations, where state assistance would come too late.30 Here, victims get a power that is usually reserved to a state to protect themselves.31 However, Israel is not an individual defending itself against attacks, but an entire state. The principles must therefore be adapted to the extent that a state may defend itself against attacks until the S.C. intervenes.32

2. Self-Defense Applied in the Case of Israel

To claim self-defense, the Rome Statute requires three components to be fulfilled.33 The person’s action

must be reasonable,
directed to fight an imminent and unlawful use of force, and lastly,
in a proportionate manner measured against the degree of danger for the person.34

The attacks of Hamas on October 7 can’t be justified by any law in the Rome Statute and therefore are an imminent and unlawful use of force.35 One might argue that Hamas was fighting genocide or apartheid, but even in this case, the willful killing of countless civilians would not be lawful under international law. As a result, the second requirement of self-defense is fulfilled.

Whether a reaction is reasonable depends on the individual circumstances. The accused must have held a reasonable belief that establishing force and consequently committing a criminal act was necessary for either themselves or another individual.36 This requirement particularly goes to the need for a “real threat” at the moment of the reaction.37

With the killings of over thousand civilians and the hostages, Hamas imposed a real threat on Israel and urged the government to react to sufficiently protect their citizens.38 Although the plain meaning of “reasonable” also addresses the scope of the reaction, this requirement only directs to the question of whether or not to react, not the lawfulness of the actual conduct during the reaction. The latter is the subject of the third component of self-defense under Article 31(1)(c). Whereas there is only little discussion about Israel complying with the reasonableness and the reaction to an imminent danger, the proportionality of Israel’s answer to the Hamas attacks is highly contested. In contrast to the other components, it is almost impossible to develop an objective threshold in a manner proportionate to the degree of danger.

Before we turn to a deeper analysis of proportionality, the state of debate on the question of whether Israel has a right to self-defense at all will be briefly outlined.

B. Does Israel have a Right to Self-Defense Against Hamas?

With the matter of scope and especially the understanding of proportionality in Israel’s response to the just briefly described Hamas attacks, the question of the right to self-defense against Hamas/Palestine arises. The underlying issue is the—highly contested—claim, that Israel has no right to self-defense against a non-state actor,39 or optionally, against armed groups emerging from occupied territory.40

The conflict is not only of academic dimension, but members of the S.C. are also divided in that regard.41 Countries like France and the United Kingdom strongly affirm the right to self-defense for Israel, while in contrast, Brazil rejects such a right against a non-state actor.42 With the argument that Gaza remains under Israeli occupation, countries like Jordan and Pakistan deny the right to self-defense against armed groups emerging from occupied territory.43 This is not a new debate. On February 24, 2021, the S.C. discussed the permission for the use of armed force by one state against another, although the issue was slightly different.44 Just one day later, the United States carried out airstrikes in Syria, targeting multiple small facilities utilized by Iraqi militias (allegedly not controlled by Syria and therefore “non-state actors”).45 Especially noticeable was that the U.S. launched an airstrike against a non-state actor on the territory of another State without the consent of the latter.46

Probably the gravest argument against a military reaction against a non-state actor on the territory of a non-consenting state is the sovereignty of the latter. But this does not apply in the case of Gaza, because the Gaza Strip does not have a state authority which sovereignty could be undermined.47 In addition, the case of the U.S. launching an airstrike in Syria is also not comparable in the sense that the U.S. never claimed to defend an imminent armed attack.48 In this regard, some countries agree that the excuse of self-defense needs an armed attack that is not over.49

The first opinion as argued by France and the United Kingdom, is supported by the wording of U.N. Charter, Article 51. Here it explicitly only states that self-defense is justified “if an armed attack occurs“—not “an armed attack by a State.”50 Nevertheless, some states argue that the words “by a state” should be read into U.N. Charter, Article 51.51

The argument is supported by other articles in the U.N. Charter where additional words must be read in to understand the exact meaning, for example, Article 2(4). Here it says that “the use of force” is prohibited instead of claiming the prohibition of “armed force.”52 But although the word is not explicitly mentioned, it is clear that the Provision is reduced to armed force.53 This is supported as well by the changing use of either “force” or “armed force” in Arts. 41, 44, and 46 of the U.N. Charter54 Scholars now argue that this is the same for Article 51 and the issue of an armed attack.55 In that regard, arguments are made that are based on the understanding of “international security” and the purpose of Article 1(1) of the Charter, but most importantly, they refer to the first draft of a prevention regarding self-defense, presented by the United States.56 Here it says:

Should the Security Council not succeed in preventing aggression, and should aggression occur by any state against any member state , such member state possesses the inherent right to take necessary measures for self-defense. The right to take such measures for self-defense against armed attack shall also apply to understandings or arrangements like those embodied in the Act of Chapultepec, under which all members of a group of states agree to consider an attack against any one of them as an attack against all of them.57 (emphasis added).

People now hold that “armed attack” is a subcategory of “aggression […] by a state,” which is why an armed attack can necessarily only be committed by a State actor.58

Two things can be said in response. Firstly, one could argue that there is a purpose behind the fact that in the end, the phrasing “by a State” did not make it into the final draft of U.N. Charter, Article 51. This purpose might be that the U.N. wanted a broader approach to self-defense and therefore intentionally deleted the state-requirement. Second, other than for example in Article 2(4), the implicit meaning of the text is not as compelling. Given the fact that non-governmental actors started serious wars in the past decades (see for example Libya, Sudan, Syria, and Gaza), Article 51 makes sense without the addition of the state actor. In contrast, Article 2(4) most certainly refers to armed attacks.

Without resolving the discussion but with due depth for this comment, it should be assumed that Israel has a right of self-defense emerging out of Article 51 of the U.N. Charter against Hamas. At the same time, this conclusion raises a follow-up-question: How is this relevant for individual criminal liability under the Rome Statute? As far as can be seen, there is no clear answer. When someone acts as the head of a state, their responsibility is measured under both treaties. It would lead to absurd results if the same act of self-defense would satisfy Article 31(1)(c) of the Rome Statute on the one hand but violate Article 51 of the U.N. Charter on the other hand. Therefore, the question of whether Israel can comply with the U.N. Charter at all is also influential for individual criminal responsibility of persons acting in their official capacity.

IV. Proportionality in International Law

With the preceding analysis showing—and to some extent assuming for the purposes of the comment—that Israelian leaders complied with the first two requirements of self-defense under the Rome Statute, the question remains whether they also met the threshold of proportionality.

A. Origin of Proportionality

Proportionality is a core principle in many legal systems.59 In domestic legal systems, it often appears as a balancing test, or even broader, as a measure to ensure the rule of law.60 For example, the due process clause in United States constitutional law can be understood as an expression of proportionality.61 Proportionality can appear either in constitutional or in criminal law as well as in domestic or international systems.62 Because of its high generality, the concept is relatively fluid and applicable to several scenarios.63

In International Law, proportionality emerged out of customary law, mostly of opinio juris and State practice.64 With the First Additional Protocol to the Geneva Conventions (GC) of 1949, it found its way into written law.65 In the GC, proportionality is not only addressed in the light of criminal law and self-defense, but in its whole breath.66 The GC is a great example of the different types in which proportionality appears.67

Proportionality exists in the shape of proportionality of means to ends.68 This kind of proportionality is closely linked to (military) necessity and speaks to the appropriateness of means to achieve legitimate ends.69 It necessitates a connection between the methods used and the desired goals, without the need for an additional comparison of conflicting interests.70 Proportionality can also appear as a balancing of interests.71 Here, proportionality seeks the resolution of a conflict between two values.72 It requires the exact determination of the conflicting rights or interests.73 In terms of international conflicts, this rule prescribes that the expected collateral damage should not be excessive in comparison to the anticipated military benefit.74 It sets the potential incidental harm against the projected military advantage.75

Remaining, but less relevant for self-defense, are proportionality aspects in terms of finding an appropriate punishment76 and the “mathematical proportionality.”77

B. Proportionality in the Rome Statute

Without explicitly framing it, the Rome Statute not only addresses proportionality in Article 31(1)(c) but establishes in Article 8(2)(b)(iv) what can be considered a negative definition of proportionality as it is widely understood.78 Here it says:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.79

By delineating what constitutes disproportionate behavior in an armed conflict, it also provides an understanding of how proportionality might be assessed. As can be read from the formulation “in relation to the concrete and direct overall military advantage anticipated,” the Rome Statute addresses the first of the four variants, the “means to an end”-proportionality. The damage and harm caused by an attack must be justified by the military advantage (or the other way around, to establish criminal liability). The understanding of proportionality the Rome Statute uses is therefore closely linked to military necessity and with that, to Article 51 of the U.N. Charter.

The wording “incidental loss of life or injury to civilians,” “excessive in relation to” and “military advantage” used by the Rome Statute is the precise adoption of what was previously understood as proportionality in customary law and also domestic legal systems.80 It copies the language set forth by the Additional Protocol I almost identically, where it says:

An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.81

With this approach, the Rome Statute not only complies with the broadly accepted idea of proportionality, but it also gives a hint for the proportionality analysis.82 By speaking of an attack that needs to be “clearly excessive” to constitute a crime under Article 8 of the Rome Statute, one could conclude that the ICC gives military advantage a wide margin of maneuver.83

C. Elements of Proportionality

Because proportionality is such a broad and flexible concept, adaptable for almost every situation in a legal context, there has been a lot of work to describe the core of the proportionality principle. As a result, one must accept that a clear and abstract definition is almost impossible, rather, competing factors and the relationship of the values in question must be included.84

In any case, there is agreement that proportionality is made up of various factors, legitimacy, adequacy/suitability, necessity, and proportionality stricto sensu balancing.85 This is not only true for proportionality as an element of self-defense, but probably even more significant, for the question of whether a certain law is proportionate.86

In criminal law and with the question of self-defense, the analysis usually focuses on the fourth element, proportionality stricto sensu.87 But for a more comprehensive analysis, the remaining three factors should also be taken into account. They can either rule out defensive force before even getting to the balancing or provide an alternative, less intrusive way of self-defense and therefore speak to the requirement of the “excessive use” of force.

1. Legitimacy/Legitimate Aims

The requirement of legitimacy or legitimate aims refers to a state of mind.88 The pure definition of the word means “the quality of being reasonable and acceptable.”89 This is exactly what this characteristic of proportionality requires of the objective set—it must be reasonable and acceptable. This implies, of course, a highly moral approach.90 Who decides whether something is “acceptable”?

Two approaches are possible: first, one could develop a list of certain legitimate aims, especially concerning self-defense. Such a list can be found in the European Convention on Human Rights (ECHR). Thus, some rights can only be restricted on the basis of legitimate aims, which are specified as follows:91 interests of national security, territorial integrity, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others (among others).92

The difficulty with this approach is that all of these rights themselves are broad, which in turn requires concretization. This can be provided by the following elements of proportionality so that the breadth is not necessarily problematic. Additionally, legitimacy functions more as a gateway for the analysis of proportionality and serves above all to exclude cases from the outset that cannot meet the requirements from any point of view. Outside of a war context, this could be for example goals connected with the disapproval of homosexuality.93 In the context of war, aims just intended to destroy civil residences without any military target could never be a legitimate goal.

Another approach to narrowing the rights is the inclusion of competing interests. In this regard, an aim can only be legitimate as long as it is not completely implausible that it justifies the interference with the other value.94 In the context of war crimes, the legitimate end almost always will be national security, public safety, and the inevitable (albeit highly desirable) military advantage in this regard.

2. Adequacy/Suitability

Adequacy, or suitability, is the first step in narrowing the legitimate aim. It requires at least a small connection between the goal and the means used for accomplishing it.95 Or, to put it in easier words: are the means suitable in any way to reach the legitimate aim?

As the wording suggests, this is still a very broad element that offers a great deal of scope. One of the reasons is the inherent degree of uncertainty that a measure will contribute to achieving a certain aim.96 The goal of this element is to establish a collision of two values and at the same time, rule cases out where no conflict exists at all.97

3. Necessity

Necessity as well as the following proportionality stricto sensu is the core of the proportionality analysis and therefore the part where most of the cases are sorted out. In the European Court of Human Rights, necessity is defined as a case where there is no possibility of recourse to an alternative measure which would cause less damage to the fundamental right in issue while fulfilling the same aim.98 Even if the choice of words may differ in places, ultimately necessity describes the choice of the least intrusive—but equally effective—means.99

This understanding of necessity might be confusing because it significantly defers from the (military) necessity, which also influences self-defense and proportionality. This kind of necessity speaks to the resort to force, rather than to non-forcible measures,100 and military necessity especially is used to justify violence or destruction in an armed conflict.101

To evaluate the type of necessity that is part of the four-step analysis of proportionality, one must carefully weigh out other options that might be less intrusive. Only if these steps are not as effective as the one taken, necessity can be established. For example: it is possible that the ICC finds the killing of a superior commander a legitimate goal and an airstrike targeting a civilian residence to be an appropriate means. Still, it would be possible that the Court finds that a ground offense precisely directed at the house where the superior commander is staying to be as effective and at the same time, less intrusive because of the lower risk of civilian deaths. In this case, the airstrike would be considered a disproportionate attack and the commander who ordered the attack could not rely on Article 31(1)(c) of the Rome Statute.

4. Proportionality Stricto Sensu Balancing

The last part of the analysis is the balancing, the so-called “proportionality stricto sensu.” In plain translation, it means proportionality in a narrower sense. Here, all the facts of the case come into play in the shape of a cost-benefit analysis.102 The goal is to strike a balance between competing interests and values.103 For the defending side, one would consider the legitimate aim to be accomplished, considering its significance and immediacy, the potential advantages, and the probability of attaining those benefits.104 At this final stage, the question remains which of the values holds precedence in the specific circumstances of the case,105 or, to apply it to the question of self-defense: whether the interference with the rights of the other party is justified by one’s own (imminent) infringement of rights.

Here is where most of the critique comes from.106 Again, there is just no plain definition for the concept behind “balancing” as well as there is no general threshold or scale where clear outcomes of balancing are determined. In the context of war crimes, it is extremely important to stress that balancing does not work as a balancing of interest in an almost mathematical way.107 For example, one life cannot be weighed against another, and three lives do not weigh more than one.108 Just because Hamas attacks (or is about to attack) a civilian residence with twenty civilians in it does not mean the IDF is allowed to launch an airstrike against a Hamas base where supposedly ten civilians live. In this case, the Court has to weigh the legitimate end (the benefit for national security and public safety together with the military advantages) against the presumed harm for the ones affected by the means (the death of ten civilians).109

It is important to remember that the question of proportionality only arises if an attack is lawful, i. e., directed against a military/dual-use target.110 Nonetheless and especially for dual-use targets, foreseeable second—and third-order effects of an attack must also be considered.111 This will become critically relevant for evaluating the criminal responsibility of Israel’s military leaders.

5. Section Summary

These four factors provide a basis to analyze Israel’s military actions, directed as self-defense against the Hamas attacks. To summarize the major findings of the previous analysis: there is no threshold or mathematical balancing for “excessiveness.” Generally, targets with a comparatively high military value (high-value targets) will justify greater incidental harm than targets with a comparatively low military value (low-value targets).112 Only lawful targets can trigger the question of proportionality. Legitimate aim, adequacy, and necessity, although not by definition part of the proportionality assessment in international criminal law, can be helpful factors to either rule certain attacks out upfront or establish a basis of arguments for the balancing.

V. Reaction of Israel

With the legal foundation of self-defense and proportionality, we now turn to the concrete reaction of Israel to the attacks on October 7, 2023. Overall, there are three main strategies that Israel chose for reacting to Hamas. These are aerial bombardments, a ground invasion beginning on October 28, and the blockade of water, fuel, electricity, and supplies.113 It would now be possible and quite interesting to examine each of these acts of defense individually and examine their legality in order to then draw up an overall picture and give an assessment of whether and to what extent decision-makers in Israel have observed the limits of proportionality. For reasons of space, however, the examination will be confined to Israel’s legitimate aims and a more detailed analysis on necessity and proportionality stricto sensu. This will be examined in particular using the example of the Jabalia airstrike.

A. Legitimate Military Target

As analyzed above, to refer to proportional self-defense, one needs to establish a legitimate aim. But even before that, the question of proportionality is only triggered if the self-defense in question is directed against a legitimate military target. The GC defines this as follows:

In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.114

Conversely, this means that civilian objects can also be legitimate targets, provided they can also be of considerable military benefit.115 This regularly applies to objects such as means of communication, command, and control—railway lines, roads, bridges, tunnels, and canals.116

It gets more complicated if buildings are both occupied by civilians and military leaders (so-called dual-use). This is exactly what happened in the current situation, when the IDF destroyed a twelve-story building on 15 May, in which, according to the IDF, “military assets of the Hamas terror organization” were located, as well as news offices and civilian apartments.117 This triggered a major debate about the extent to which buildings that are used both as residential buildings (possibly with the purpose of human shielding) and for military purposes can be the target of an attack.118 In any case, for the purpose of examining an act of self-defense, it is useful to understand “legitimate military target” broadly and to recognize dual-use objects as such, in view of the following elements that further restrict legality. Therefore, as long as an object is not exclusively or predominantly dedicated to civilian purposes, it should be understood as a legitimate objective.

B. Legitimate Aim

Much like the authorized military target, the legitimate objective ought to be comprehended in a reasonably expansive manner. As mentioned above, Israel’s main objective is to ensure national security and public safety. Both are significantly endangered or even impaired by the Hamas attacks.

In addition, Israel clearly states the destruction of Hamas as the goal of the attacks.119 This leads to the question of whether the communication of such an aim can be understood as the plain intention of “winning the war,” which would not meet the requirements of a legitimate purpose.120 In view of the fact that the threat to Israel’s national security emanates directly from Hamas, the (primary) goal of winning the war cannot be inferred from this announcement. Rather, it seems legitimate to want to eliminate a group that is responsible for the danger that justifies self-defense in the first place. With this approach, it is entirely consistent to assert that Israel has a lawful entitlement to seek the complete elimination of Hamas.121

Alternatively, one could argue that the complete eradication of Hamas is not a justifiable defensive objective. According to this perspective, states are legally entitled only to stop and repel a present attack or, perhaps, to prevent an imminent one.122 This may be laudable and morally correct approach in theory, but it fails to recognize that in this way countries such as Israel or Syria (with ISIS) are completely exposed to terrorist groups. It also contradicts the principle that “right must not give way to wrong.”

In conclusion, with its military actions, Israel pursues a legitimate aim.

C. Adequacy and Necessity

The questions regarding adequacy and necessity require both a deeper understanding of military maneuvers and a correspondingly in-depth examination of the prospects of success and, if necessary, equally successful alternative maneuvers. This cannot be achieved in this comment. Up to this point, however, it should be noted that the defensive measures chosen by Israel do not appear to be completely futile and have already achieved some success,123 although other voices suggest the opposite.124

D. Proportionality Stricto Sensu

Assuming that Israeli officials met the requirements of the previous elements of proportionality, we now turn to the core of the proportionality question—whether the launched attacks were proportionate in a narrower sense.

In the context of war crimes, this question breaks down to the balancing of the expected military advantage and the estimated civilian harm.125 This is also called Collateral Damage Estimate (CDE)126 and can be pictured as such:

x expected civilian harm ≤ concrete & direct military advantage anticipated.127

Despite many attempts to fill the “equation” with content and clues, it is repeatedly faced with similar difficulties. These are aptly summarized in the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign in Kosovo:

It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases. It is suggested that the determination of relative values must be that of the ‘reasonable military commander.’128

Before getting into the proportionality analysis regarding Israel, two points can be stated: First, while a State is permitted to employ force to stop and repel and ongoing armed attack, it is not justified in eliminating the potential for future attacks at a disproportionate cost to civilians.129 Second, every analysis results in the same conclusion: no State is allowed to cause unrestricted harm in pursuit of complete security.130

In order to examine Israeli military actions in greater depth and in the light of proportionality, a specific individual case will now be examined in more detail. This case will serve as an example of the proportionality analysis that Israel’s military leaders would have to carry out in order to uphold the limits of self-defense. Finally, a general evaluation of international voices on the subject of proportionality and Israel will be undertaken.

1. The Jabalia Camp Strike

The Jabalia camp strike was an airstrike carried out by the IDF on October 31, 2023. Although there is some dispute about the exact impacts, several sources claim that the strike destroyed an area of 2,500 square meters and led to 400 casualties with more than 100 deaths, the majority women, and children.131 In an official press release published by IDF, the military advantages are clearly pointed out as follows:

A short while ago, IDF fighter jets, acting on ISA intelligence, killed Ibrahim Biari, the Commander of Hamas’ Central Jabaliya Battalion. Biari was one of the leaders responsible for sending ‘Nukbha’ terrorist operatives to Israel to carry out the murderous terror attack on October 7th. Numerous Hamas terrorists were hit in the strike. […] As a result of the strike, a large number of terrorists who were with Biari were killed. Underground terror infrastructure embedded beneath the buildings, used by the terrorists, also collapsed after the strike.132

The press release implies that the airstrike was not an operational error, but rather carefully planned and executed as such.133 As of today, there is no evidence that the civilian losses are higher than the IDF expected.134 All these factors lead to the question of whether the death of a high Commander and several low-level commanders/combatants together with the destruction of an underground terror structure can outweigh the deaths of approximately 100 civilians and 400 casualties. Or, to say it in the wording of Article 8(2)(b)(iv) of the Rome Statute: whether this number of casualties and deaths can be considered clearly excessive in relation to the concrete and direct overall military advantage anticipated.

i. NCV Method to Weigh Proportionality

Although, as already stated, proportionality is not about simple numbers and mathematical equations, the CDE implies that “x expected civilian harm” should be measured against the military advantage and therefore refers to a certain number of people who are affected by the caused harm. Additionally, the United States and its allies, along with coalition partners involved in the wars in Afghanistan and Iraq, formulated the idea of the non-combatant casualty cut-off value (NCV).135 This essentially assigns an operational value to the parameter “x” for particular attacks or operations, particularly concerning fatalities or severe injuries.136 In this way, military commanders could “objectively quantify proportionality in a potentially chaotic environment.”137 Although this rule was later removed, it was amongst others used for the targeting of Osama Bin Laden.138

As in the case of Ibrahim Biari, the United States military accepted civilian casualties in order to achieve their primary goal, namely the death of Bin Laden. For this reason, it makes sense to compare the two cases and to determine the NCV for a first approximation to proportionality stricto sensu. A statement of a former deputy commander of operations and intelligence for Combined Joint Task Force Operation Inherent Resolve indicates that for someone like Osama Bin Laden, the NCV value could be 30, whereas for a low-level commander it would be zero.139 For an operation against ISIS, an NCV of 14 or 15 would have been considered “high.”140

Taken this measurement, the Jabalia camp strike can hardly be justified.141 Even if one asserts an NCV value of 30 for Ibrahim Biari, which would be the same as for Osama Bin Laden, one could not meet the threshold in the face of more than a hundred deaths in Jabalia. All other killed combatants were, as far as one can conclude from the press release, only combatants without a significant military standing. Adopting the NCV, they cannot equal a single civilian death. Remaining is the destruction of the underground terror network. Due to the lack of information about the relevance of this network for Hamas, it is hard to argue whether this could, by any means, justify 400 casualties. What has to be taken into account as well is, that the United Nations recorded more than 110,000 refugees in Jabalia, covering an area of 1.4 square kilometers, resulting in an exceptionally high population density.142 Despite Israel’s advisories for the Gaza population to relocate southward, a notable portion of the civilian residents in Jabalia chose to stay in their locations on October 31, as confirmed by social media videos posted in the days leading up to the strike.143 These circumstances are critically relevant for the analysis that is not retrospective but from the point of a reasonable military commander in the situation the decision was made.144 Knowing that the population remained dense, a rational commander might have set the NCV even higher.

In conclusion, in the light of the NCV value the military advantage is not sufficient to meet the proportionality stricto sensu threshold.

ii. Comparison to Former Cases Involving Proportionality

Another approach to the balancing is the reference to former international criminal cases.145 The ICC never explicitly dealt with proportionality, but the International Criminal Tribunal for Yugoslavia (ICTY) provides, with the Gotovina and the Galić case, some material. In the Gotovina case,146 the subject of the military operation was, without a doubt, a lawful military target as a commander in chief of the regional Serb forces.147 Nevertheless, the Trial Chamber still concluded that, because at the time of the firing, a reasonable commander would have expected civilians to be present, this risk was “excessive” in relation to the military advantage.148 The Appeals Chamber later criticized the lack of a concrete assessment of comparative military advantage.149

However, these standards applied to the Jabalia camp strike do not lead to the legality of the airstrike, even if the military advantage is specifically discussed. Rather, an Israeli commander could and should have recognized that the risk of civilian casualties due to the dense population was too high.150 This assessment could possibly change with more extensive information about the importance of the underground system for Hamas, but this is unlikely.

Consequently, up to this point, it must be stated that Israel’s airstrike on the Jabalia camp is not within the limits of narrow proportionality.

2. Overall Proportionality

Whether Israel complies with the standards set forth by International Humanitarian Law in its response to the Hamas’ attacks is a highly controversial topic and therefore discussed by scholars all over the world. The tendency seems to be that Israel, if it has a right to self-defense at all,151 is clearly overstretching it.

Some compare the harmful events on October 7 to 9/11 and therefore compare Israel’s reaction to the invasion of the United States in Afghanistan.152 O’Connell states that even if the United States had a right to invade Afghanistan under Article 51 of the U.N. Charter, the invasion did not meet the requirements of proportionality—and the same is allegedly true for Gaza because an invasion was (in both cases) not the last resort.153 This argument goes to the third requirement of proportionality, the question about the least intrusive means (necessity). Although O’Connell admits that—in contrast to Al Qaeda—there is evidence that Hamas is planning more attacks, she still finds that destroying Hamas creates a risk for more militants.154 O’Connell’s article does not make clear why that is.

Others argue that the anticipated forceful reaction from Israel to terrorist violence lacks justification due to the perpetrators’ clear intent to impose suffering on innocent Palestinians—either as a form of collective punishment or in a vengeful manner.155 Tadros’s article proposes that the systemic violation of Palestinian rights by the Israeli government should be taken into account for a proportionality analysis.156 This might be true for state responsibility, but not for individual criminal liability, and is insofar not relevant for the purpose of this comment.

In addition to voices that grant Israel the right to defend itself but call for a significant narrowing of Israel’s legitimate aims and a drastic change in tactics,157 some scholars see the total fight against Hamas as the only effective means and therefore grant Israel the widest possible scope in exercising its right to self-defense.158 The truth, and therefore the lawful path, probably lies—as is so often the case—in the middle.

VI. Conclusion

After this discussion, the question remains as to what Israel should do now and how Israel should otherwise respond to the Hamas attacks instead. The solution should not be to react exclusively defensively and only to minimize the impact of Hamas’ attacks. On the other side, Israel should refrain from military strikes that cause severe civilian harm without gaining a military advantage. Even the United States, usually a supporter of Israel, criticized Israel’s military by asking for an explanation of the first attack on Jabalia and urging Israel to avoid harming civilians.159

At the same time it is also true that a lot of scholars in the area of International Humanitarian Law primarily focus on the harms Israel causes to the Palestinians rather than taking into account that, at the same time, Hamas committed atrocities, and vows to continue to do so, against Israeli citizens.160 The ambivalences in the discussion are highlighted in Shereshevsky’s article that calls for a deeper look at the situation, an understanding of the nuances, and, above all, a focus on the victims on all sides.161 This is also true for the question of proportionality. One cannot simply frame an attack as unlawful and disproportionate without recognizing the victims of the other side at the same time.

There is still no clear threshold for the question of proportionality. However, with a clearly defined legitimate aim, an analysis of suitability and necessity, and a weighing of all interests in question within the framework of proportionality in the narrow sense, as well as the inclusion of previous decisions, proportionality can at least be outlined within its rough limits.

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

1.
Seth J. Frantzman, Hamas Terror Commander Deif Calls for All Out War on Israel, The Jerusalem Post, Oct. 7, 2023, available online. ↩
2.
Id. ↩
3.
Bill Hutchinson, Israel–Hamas War: Timeline and Key Developments, ABC News, Nov. 22, 2023, available online. ↩
4.
Ephrat Linvi & Gaya Gupta, What We Know About the War Between Israel and Hamas, N.Y. Times, Nov. 20, 2023, available online; Abedelali Ragad, Richard Irvone-Brown, Benedict Garman & Sean Seddon, How Hamas Built a Force to Attack Israel on 7 October, BBC News, Nov. 27, 2023, available online. ↩
5.
Emmanuelle Saliba & Helena Skinner, Timeline: How a Night of Dancing Turned Into the Worst Civilian Massacre in Israel’s History, ABC News, Oct. 12, 2023, available online. ↩
6.
Id. ↩
7.
Hadas Gold, Shirin Faqiri, Helen Regan, Jessie Yeung & Caitlin Hu, Israel Formally Declares War Against Hamas as It Battles to Push Militants Off Its Soil, CNN, Oct. 8, 2023, available online. ↩
8.
Id. ↩
9.
Emanuel Fabian, Defense Minister Announces “Complete Siege” of Gaza: No Power, Food or Fuel, Times of Israel, Oct. 9, 2023, available online. ↩
10.
U.N. Charter, Art. 2(4). ↩
11.
Id. Art. 51. ↩
12.
Rome Statute, Art. 31(1)(c). ↩
13.
See, e.g., Jakob Pichon, International Criminal Court and United Nations Security Council, 218 Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 349, 353 (2011), available online. ↩
14.
Id. ↩
15.
Rome Statute, supra note 12, at Art. 31(1)(c); U.N. Charter, supra note 10, at Art. 51. ↩
16.
Elise Baker, Hamas’s Actions Are War Crimes. Israel Should not Respond with Further War Crimes., Atlantic Council (Oct. 16, 2023), available online. ↩
17.
Id. ↩
18.
Id. ↩
19.
Id. ↩
20.
John Cherry & Michael Rizzotti, Understanding Self-Defense and the Law of Armed Conflict, Articles of War (Mar. 9, 2021), available online. ↩
21.
U.N. Charter, supra note 10, at Art. 51. ↩
22.
Id. ↩
23.
Id. ↩
24.
Id. ↩
25.
Id. ↩
26.
Id. ↩
27.
Jérémie Gilbert, Justice Not Revenge: The International Criminal Court and the “Grounds to Exclude Criminal Responsibility”: Defences or Negotiation of Criminality, 8 (Mar. 1, 2010), available online. ↩
28.
Cherry & Rizzotti, supra note 20. ↩
29.
Id. ↩
30.
Id. ↩
31.
Gilbert, supra note 27. ↩
32.
U.N. Charter, supra note 10, at Art. 51. ↩
33.
Rome Statute, supra note 12, at Art. 31(1)(c). ↩
34.
See id. ↩
35.
See, e.g., id. Art. 13. ↩
36.
Cherry & Rizzotti, supra note 20, at 9. ↩
37.
Id. ↩
38.
Jim Zanotti, Jeremy M. Sharp & Christopher M. Blanchard, Cong. Research Serv., R47754, Israel and Hamas October 2023 Conflict: Frequently Asked Questions (Oct. 20, 2023), available online. ↩
39.
The Middle East, Including the Palestinian Question: Vote on Competing Draft Resolutions, S.C. Rep., Oct. 25, 2023, available online. ↩
40.
Adil Ahmad Haque, Enough: Self-Defense and Proportionality in the Israel–Hamas Conflict, Just Security (Nov. 6, 2023), available online; S.C. Meeting, UN Doc. S/PV.9443 (Oct. 18, 2023), download. ↩
41.
Haque, supra note 40. ↩
42.
Id. ↩
43.
Id. ↩
44.
Adil Ahmad Haque, Self-Defense Against Non-State Actors: All Over the Map, Just Security (Mar. 24, 2021), available online. ↩
45.
Id. ↩
46.
Id. ↩
47.
United States Department of State, 2022 Country Reports on Human Rights Practices: Israel, West Bank and Gaza (2022), available online. ↩
48.
Haque, supra note 40. ↩
49.
Id. ↩
50.
Id. ↩
51.
Id. ↩
52.
Adil Ahmad Haque, “Clearly of Latin American Origin”: Armed Attack by Non-State Actors and the U.N. Charter, Just Security (Nov. 5, 2019), available online. ↩
53.
Id. ↩
54.
Id. ↩
55.
Id. ↩
56.
Id. ↩
57.
The United Nations Conference on International Organization, D.244, Minutes of the Seventh Five-Power Informal Consultative Meeting on Proposed Amendments 832 (San Francisco, May 21, 1945), available online. ↩
58.
Haque, supra note 52. ↩
59.
Rogier Bartels, Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials, 46 Israel L. Rev. 271 (Jul. 2013), paywall, doi. ↩
60.
Id. ↩
61.
Robert McAuliffe, A Procedural Due Process Argument for Proportionality Review in Capital Sentencing, 21 Colum. J.L. & Soc. Probs. 385 (1988), paywall. ↩
62.
Juan Cianciardo, The Principle of Proportionality: The Challenges of Human Rights, 3 J. of Civ. L. Stud. 177 (Jan. 1, 2010), available online. ↩
63.
Anaïs Maroonian, Proportionality in International Humanitarian Law: a Principle and a Rule, Articles of War (Oct. 24, 2022), available online. ↩
64.
Id. ↩
65.
Bartels, supra note 59, at 273; 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, Art. 48 (Jun. 8, 1977) [hereinafter Additional Protocol I], available online, archived. ↩
66.
Maroonian, supra note 63. ↩
67.
See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, Art. 12(5) (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter First Geneva Convention], available online; Geneva Convention Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, Art. 75(3) (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter Third Geneva Convention], available online; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, Art. 89(4) (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter Fourth Geneva Convention], available online. ↩
68.
Fourth Geneva Convention, at Art. 89. ↩
69.
David Kretzmer, The Inherent Right to Self-Defense and Proportionality in Jus Ad Bellum, 24 EJIL 235 (Feb. 2013), available online. ↩
70.
Maroonian, supra note 63. ↩
71.
Id.; Fourth Geneva Convention, supra note 67, at Art. 42(1). ↩
72.
Kai Möller, Proportionality: Challenging the Critics, 10 ICON 709 (2012), available online. ↩
73.
Maroonian, supra note 63. ↩
74.
Id. ↩
75.
Id. ↩
76.
Id.; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, Art. 50(1) (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter Second Geneva Convention], available online. ↩
77.
Id.; Third Geneva Convention, supra note 67, at Arts. 75(4), 60(3)(b). ↩
78.
Michael A. Newton, Reframing the Proportionality Principle, 51 Vand. J. Transnat’l L. 867 (2018), available online. ↩
79.
Rome Statute, supra note 12, at Art. 8(2)(b)(iv). ↩
80.
Newton, supra note 78, at 883, 884. ↩
81.
Additional Protocol I, supra note 65, at Art. 51(5)(b). ↩
82.
Newton, supra note 78, at 884. ↩
83.
Id. ↩
84.
Id. at 873. ↩
85.
Möller, supra note 72, at 711. ↩
86.
Id. ↩
87.
Hannah Tonkin, Defensive Force under the Rome Statute, 6 Melb. J. Int’l L. 86 (2005), available online.

(Here, under (2) Reasonably Proportionate, only the weighing of the personal interests of the aggressor and the interests being defended are noted). ↩
88.
Möller, supra note 72, at 711. ↩
89.
Legitimacy, Cambridge Dict., available online (last visited Dec. 13, 2023). ↩
90.
Möller, supra note 72, at 712. ↩
91.
European Convention on Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, Arts. 8(2), 9(2), 10(2), 11(2) (opened for signature Nov. 4, 1950), available online. ↩
92.
Id. ↩
93.
Id. ↩
94.
Id. ↩
95.
Luka Anđelković, The Elements of Proportionality as a Principle of Human Rights Limitations, 15 L. and Pol. 235 (2017), paywall. ↩
96.
Id. ↩
97.
Möller, supra note 72, at 713. ↩
98.
Nada v. Switzerland, 10593/08, Judgment (ECtHR GC, Sep. 12, 2012), available online. ↩
99.
Möller, supra note 72, at 713. ↩
100.
Kretzmer, supra note 69. ↩
101.
Military Necessity, Prac. Guide to Humanitarian L., available online (last visited Dec. 13, 2023). ↩
102.
Möller, supra note 72, at 715. ↩
103.
Anđelković, supra note 95, at 241. ↩
104.
Id. ↩
105.
Möller, supra note 72, at 715. ↩
106.
Id. at 715, 716. ↩
107.
Id. at 715. ↩
108.
Id. ↩
109.
Id. ↩
110.
Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, ICRC 101 (Nov. 2019), available online. ↩
111.
Id. at 102. ↩
112.
Id. at 101. ↩
113.
Global Conflict Tracker, Israeli–Palestinian Conflict, CPA (Dec. 4, 2023), available online (last visited Dec. 13, 2023). ↩
114.
Additional Protocol I, supra note 65, at Art. 52. ↩
115.
Gaby Rado, Legitimate Military Target, Crimes of War (archived Sep. 25, 2009), archived. ↩
116.
Id. ↩
117.
Michael N. Schmitt, Targeting Dual-Use Structures: An Alternative Interpretation, Articles of War (Jun. 28, 2021), available online. ↩
118.
See, e.g., Aurel Sari, Israeli Attacks on Gaza’s Tower Blocks, Articles of War (May 17, 2021), available online; Adil Ahmad Haque, The IDF’s Unlawful Attack on Al Jalaa Tower, Just Security (May 27, 2021), available online. ↩
119.
Loveday Morris, Israel has Vowed to Destroy Hamas. Yet the Group Remains Largely Intact, Wash. Post, Dec. 5, 2023, available online. ↩
120.
Melzer, supra note 110, at 101. ↩
121.
Haque, supra note 40. ↩
122.
Id. ↩
123.
See, e.g., Alexandra Sharp, Israel Touts Military Success Against Hamas, Foreign Pol. (Nov. 14, 2023), available online. ↩
124.
Morris, supra note 119. ↩
125.
Mark Lattimer, Assessing Israel’s Approach to Proportionality in the Conduct of Hostilities in Gaza, Lawfare (Nov. 16, 2023), available online. ↩
126.
See, e.g., European External Action Service, 772 Rev. 8, Avoiding and Minimalizing Collateral Damage in EU-led Military Operations Concept 17 (Feb. 3, 2016), available online. ↩
127.
Lattimer, supra note 125. ↩
128.
Press Release, ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign in Kosovo, ¶ 50 (Jun. 13, 2000), available online. ↩
129.
Haque, supra note 40. ↩
130.
Id. ↩
131.
Lattimer, supra note 125. ↩
132.
Press Release, IDF, IDF & ISA Eliminate Commander of Hamas’ Central Jabaliya Battalion (Oct. 31, 2023), available online. ↩
133.
Lattimer, supra note 125. ↩
134.
Marc Schack, In Defence of Preliminary Assessments: Proportionality and the 31 October Attack on the Jabalia Refugee Camp, EJIL Talk (Nov. 8, 2023), available online. ↩
135.
John Cherry, Kieran Tinkler & Michael N. Schmitt, Avoiding Damage on the Battlefield, Just Security (Feb. 11, 2021), available online. ↩
136.
Id. ↩
137.
See Frank Wolfe, Pentagon Removed Non-Combatant Casualty Cut-Off Value from Doctrine in 2018, Defense Daily (Nov. 6, 2021), available online

(quote by Peter Gersten, Senior United States Commander). ↩
138.
Id. ↩
139.
Lattimer, supra note 125. ↩
140.
Id. ↩
141.
Id.

(coming to the same conclusion). ↩
142.
Jabalia Camp, UNRWA (updated Jul. 2023), available online. ↩
143.
Lattimer, supra note 125. ↩
144.
Newton, supra note 78, at 868. ↩
145.
Schack, supra note 134. ↩
146.
The Prosecutor v. Ante Gotovina, Ivan Čermak, Mladen Markač, IT-06-90-A, Judgement (ICTY TC I, Apr. 15, 2011), available online. ↩
147.
Schack, supra note 134. ↩
148.
Id. ↩
149.
The Prosecutor v. Ante Gotovina, Mladen Markač, IT-06-90-A, Judgement (ICTY AC, Nov. 16, 2012), available online. ↩
150.
Schack, supra note 134. ↩
151.
See, e.g., Marko Milanovic, Does Israel Have the Right to Defend Itself?, EJIL Talk (Nov. 14, 2023), available online. ↩
152.
Mary Ellen O’Connell, The Lessons of 9/11 for October 7, EJIL Talk (Oct. 28, 2023), available online. ↩
153.
Id. ↩
154.
Id. ↩
155.
Victor Tadros, Proportionality and Responsibility in the Israel–Hamas Conflict, Daily Nous (Oct. 23, 2023), available online. ↩
156.
Id. ↩
157.
Haque, supra note 40. ↩
158.
Nave Dromi, Israeli Victory Is the Only “Proportional” Response, Mid. East F. (Oct. 18, 2023), available online. ↩
159.
Lara Seligman & Alexander Ward, US asks Israel for “Explanation” of Strike on Gaza Refugee Camp, Politico (Nov. 3, 2023), available online. ↩
160.
UN’s Türk Urges Probe Into Alleged Sexual Violence During Hamas Terror Attacks, UN News, Dec. 6, 2023, available online

(discussing the ongoing sexual violence against female hostages). ↩
161.
Yahli Shereshevsky, A Plea to the International Law Community: On De-Humanizing and the October 7th Atrocities, Just Security (Dec. 4, 2023), available online. ↩

Katharina Schapfeld
52278
February 20, 2024
8:03 pm

Preventing Genocide: What Are the Duties of State Parties Under the Convention on the Prevention and Punishment of the Crime of Genocide and How Could They Be Fulfilled in the Current Situation?

I. Introduction

“There can be no more important issue, no more binding obligation, than the prevention of genocide.”1

The year 2023 doesn’t only mark the 75th anniversary of the Universal Declaration of Human Rights but the first international treaty adopted by the United Nations General Assembly (G.A.): The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).2

In the aftermath of World War II and the atrocities committed by the Nazis, the General Assembly affirmed genocide as a crime under international law in its very first session in 1946, declaring its punishment a “matter of international concern.”3 The resolution described this mass atrocity crime as a “denial of the right of existence that shocks the conscience of [hu]mankind and is contrary to moral law and to the spirit and aims of the United Nations.”4 One of the first official acts of the U.N. in the fight against “the ultimate crime and the gravest violation of human rights”5 was therefore to task the U.N. Economic and Social Council with the drafting of an international treaty that would codify and criminalize genocide to “safeguard the very existence of certain human groups” and to “confirm and endorse the most elementary principles of morality,”6 with the aim of preventing future recurrences.7

The year 2023 also marks the 75th anniversary of the state of Israel. A state that just suffered a gruesome attack by the terrorist group Hamas on October 7, 2023, killing over 1200 innocent civilians, and thus making it the deadliest day for Jews since the Holocaust.8 It reinforced the fear of an existential threat for many Israelis and Jews around the world, and lead to Israel’s prime minister Benjamin Netanyahu’s declaration of war against Hamas that very same day.9 Since then, the Israel Defense Forces have been continuously and extensively targeting the Gaza Strip through widespread air strikes and ground offensives.

In addition, the Israeli Minister of Defense Yoav Gallant ordered a “complete siege” on the Gaza Strip on October 9, cutting off all access to food, water, fuel, electricity, and humanitarian aid to the area.10 In his statement, he referred to the population of Gaza as “human animals.”11 This type of dehumanizing language by several Israeli officials,12 which Palestinian human rights organizations have characterized as genocidal,13 coupled with the actions of the Israeli military that have killed thousands of civilians and caused a shocking humanitarian crisis in Gaza, has worried civil society organizations,14 scholars,15 NGOs,16 and governments17 alike. The Israeli historian Raz Segal even called the unfolding events in Gaza a “textbook case of genocide”18 and a group of U.N. experts recently described the situation in Gaza as a “genocide in the making” while simultaneously asking States to fulfill their international obligations of preventing atrocity crimes through facilitating an immediate ceasefire.19

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:

Killing members of the group;

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

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

Imposing measures intended to prevent births within the group;

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:

leaves the meaning ambiguous or obscure; or

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.
Kofi Annan, Secretary General of the United Nations, Speech at Stockholm International Forum (Jan. 26, 2004), available online. ↩
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.
G.A. Resolution 96 (I), UN Doc. A/RES/96(I), The Crime of Genocide (Dec. 11, 1946), available online. ↩
4.
Id. ↩
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.
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.
United Nations Economic and Social Council, supra note 5, at ¶ 14. ↩
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.
Benjamin Netanyahu, Prime Minister of Israel, Declares War on Palestinian Militants Hamas, Wall St. J., Oct. 7, 2023, video. ↩
10.
Emanuel Fabian, Defense Minister Announces “Complete Siege” of Gaza: No Power, Food or Fuel, Times of Israel, Oct. 9, 2023, available online. ↩
11.
Id. ↩
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.
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.
See id.; Legal Briefing Paper, supra note 12. ↩
15.
See Mohsen al Attar, Public Statement: Scholars Warn of Potential Genocide in Gaza, Opinio Juris (Oct. 15, 2023), available online. ↩
16.
International Commission of Jurists, Gaza/Palestine: States have a Duty to Prevent Genocide (Nov. 17, 2023), available online. ↩
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.
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.
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.
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.
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.
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.
Karim A. A. Khan, ICC Prosecutor, Statement from Cairo on Situation in the State of Palestine and Israel (Oct. 30, 2023), available online. ↩
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.
Defense for Children International—Palestine v. Biden, CCR, available online (last visited Dec. 19, 2023). ↩
26.
OHCHR Calls for Prevention of Genocide, supra note 19. ↩
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.
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.
Id. ¶ 8. ↩
30.
Id. ↩
31.
Ratification of the Genocide Convention, OGPRtoP, available online (last visited Dec. 19, 2023). ↩
32.
Status of Treaties: Genocide Convention, UNTC, available online (last visited Dec. 19, 2023). ↩
33.
Legal Briefing Paper, supra note 12, at 4. ↩
34.
Ratification of the Genocide Convention, supra note 31. ↩
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.
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.
Id. ↩
38.
See Genocide Convention, supra note 2, at Art. IX. ↩
39.
Id. Art. III. ↩
40.
Id. Art. V. ↩
41.
Id. Art. VI. ↩
42.
Id. Art. VII. ↩
43.
Schiffbauer, Tams & Berster, supra note 28, at ¶ 6. ↩
44.
Id. ↩
45.
Id. ¶ 11. ↩
46.
Id. ¶ 8. ↩
47.
Id. ¶ 19. ↩
48.
See Genocide Convention, supra note 2, at Art. I. ↩
49.
Schiffbauer, Tams & Berster, supra note 28, at Art. I, at ¶ 17. ↩
50.
See Genocide Convention, supra note 2, at Art. II. ↩
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.
See Statute of the International Tribunal for Rwanda, S.C. Res. 955, Art. 2 (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩
53.
See Rome Statute, Art. 6. ↩
54.
See Genocide Convention, supra note 2, at Art. II. ↩
55.
Id. ↩
56.
Id. ↩
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.
The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement, ¶ 505 (ICTR TC I, Sep. 2, 1998), available online. ↩
59.
Al Attar, supra note 15. ↩
60.
Genocide Convention, supra note 2, at Art. II. ↩
61.
The Prosecutor v. Athanase Seromba, ICTR-2001-66-I, Judgment, ¶ 319 (ICTR TC I, Dec. 13, 2006), available online. ↩
62.
United Nations Economic and Social Council, supra note 5, at ¶ 29. ↩
63.
Id. ¶ 30; Schiffbauer, Tams & Berster, supra note 28, at ¶ 21. ↩
64.
Samuel Totten & Henry Theriault, The United Nations Genocide Convention, An Introduction 20 (2020), preview archived. ↩
65.
The Prosecutor v. Musema, ICTR-96-13-T, Judgment, ¶ 165 (ICTR TC I, Jan. 27, 2000), available online. ↩
66.
Legal Briefing Paper, supra note 12, at 4; International Commission of Jurists, supra note 16. ↩
67.
Id.; Genocide, OGPRtoP, available online (last visited Dec. 22, 2023). ↩
68.
The Prosecutor v. Jean-Paul Akayesu, supra note 58, at ¶ 523. ↩
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.
United Nations Economic and Social Council, supra note 5. ↩
71.
Totten & Theriault, supra note 64. ↩
72.
The Prosecutor v. Radovan Karadžić, ICTY IT-95-5/18-T, Judgment, ¶ 550 (ICTY TC, Mar. 24, 2016), available online. ↩
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.
Al-Haq, supra note 13.; International Commission of Jurists, supra note 16. ↩
75.
United Nations Economic and Social Council, supra note 5, at ¶ 38. ↩
76.
Genocide Convention, supra note 2, at Art. I. ↩
77.
Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 31. ↩
78.
Id. ¶ 20. ↩
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.
Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 21. ↩
81.
Id. ↩
82.
Id. ↩
83.
Id. ¶ 31. ↩
84.
Id. ¶ 22. ↩
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.
Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 31. ↩
87.
Genocide Convention, supra note 2, at Art. VIII. ↩
88.
Schiffbauer, Tams & Berster, supra note 28, at Art. I ¶ 21. ↩
89.
Id. ¶ 32. ↩
90.
Id. ↩
91.
Id. ¶ 22. ↩
92.
Id. ↩
93.
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩
94.
Id. Art. 31(1). ↩
95.
Schiffbauer, supra note 85, at 85. ↩
96.
Id. ↩
97.
Id. ↩
98.
Id. ↩
99.
Id.; Bosnia v. Serbia, supra note 79, at ¶ 430. ↩
100.
Bosnia v. Serbia, supra note 79, at ¶ 430. ↩
101.
Id. ↩
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.
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.
Bosnia v. Serbia, supra note 79, at ¶ 430–31. ↩
105.
Id. ¶ 431. ↩
106.
Vienna Convention, supra note 93, at Art. 32. ↩
107.
Bosnia v. Serbia, supra note 79, at ¶ 431. ↩
108.
Id. ↩
109.
Id. ↩
110.
Schiffbauer, supra note 85, at 86. ↩
111.
Id. at 87. ↩
112.
Id. at 86. ↩
113.
Id. ↩
114.
Id. ↩
115.
See id.; Legal Briefing Paper, supra note 12. ↩
116.
Al Attar, supra note 15. ↩
117.
International Commission of Jurists, supra note 16. ↩
118.
See Heller, supra note 17; Butt, supra note 17; African Union, supra note 17. ↩
119.
Bosnia v. Serbia, supra note 79, at ¶ 430. ↩
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.
Id. ↩
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.
Heller, supra note 17. ↩
124.
Maayan Jaffe-Hofmann, Brazilian MPs Challenge President, Visit Israel on Solidarity Mission, The Jerusalem Post, Dec. 7, 2023, available online. ↩
125.
Butt, supra note 17. ↩
126.
Priyanka Shankar, “Inhumane”: Top Belgium Officials Criticize Israeli Bombing of Gaza, Al Jazeera, Nov. 10, 2023, available online. ↩
127.
African Union, supra note 17. ↩
128.
As of December 15, 2023. ↩
129.
Legal Briefing Paper, supra note 12, at 11. ↩
130.
OHCHR Calls for Prevention of Genocide, supra note 19. ↩
131.
International Commission of Jurists, supra note 16. ↩
132.
Genocide Convention, supra note 2, at Art. VIII. ↩
133.
As of December 15, 2023. ↩
134.
U.N. Charter, Art. 99. ↩
135.
Id. ↩
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.
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.
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.
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.
Schiffbauer, Tams & Berster, supra note 27, at Art. I, at ¶ 22. ↩
141.
See e.g., Ogunsakin Mustapha, Group Warns UN over Imminent Genocide in Ethiopia, Gavel Int’l, Nov. 26, 2021, available online. ↩
142.
See Genocide Convention, supra note 2, at Arts. I, VIII. ↩
143.
Id. at Art. IX. ↩
144.
See Statute of the International Court of Justice, Art. 41, 59 Stat. 103 (Jun. 26, 1945) [hereinafter ICJ Statute], available online. ↩
145.
Ukraine v. Russian Federation, supra note 102, at ¶ 65. ↩
146.
Darcy, supra note 69. ↩
147.
Id. ↩
148.
Ukraine v. Russian Federation, supra note 102, at ¶ 81. ↩
149.
Darcy, supra note 69. ↩
150.
Ukraine v. Russian Federation, supra note 102, at ¶ 43. ↩
151.
Darcy, supra note 69. ↩
152.
ICJ Statute, supra note 144, at Art. 41. ↩
153.
Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Sentence (ICTR TC I, Oct. 2, 1998), available online. ↩

huangz2024
52279
February 20, 2024
8:22 pm

The Matter of Statehood on the Palestine Issue

I. Introduction

In 2021, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) received a request from the Prosecutor related to territorial jurisdiction over Palestine and issued its response and decision to the request. The main conclusion of the decision was to extend the jurisdiction to “the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”1 The controversial decision incurred considerable debate within the legal community: notably, this decision itself was accompanied by dissenting opinions from within the PTC that raised substantive questions about its validity.2 Therefore, delving into these dissenting opinions becomes essential to better understand the validity and the possible deficiencies of the PTC’s majority decision.

The topic of statehood is central to this legal debate. The main source of controversy in statehood stems from the G.A. Resolution 67/19, which was an attempt to define Palestinian state territories and how the Israeli occupation of these disputed regions impacts the status quo. In its decision, the PTC explicitly mentioned that “the ICC is not constitutionally competent to determine matters of statehood that would bind the international community.”3 However, according to the dissenting opinion by Judge Péter Kovács, the determination of statehood is pivotal to the specific case of Palestine and the PTC should not have avoided this topic.4 According to Article 19(b) and (c) of the Rome Statute, the situations to challenge the “admissibility of a case on the grounds referred to in Article 17 or challenges to the jurisdiction” all include the clear definition of a “state.”5 Therefore, the PTC’s intentional oversight of the problem of Palestine statehood puts its arguments and decisions in an ungrounded position.

This comment believes that to adhere to the founding documents of ICC, it is crucial and unavoidable to examine the question of Palestinian statehood from multiple perspectives. This comment first delves into the definition of statehood to conduct a preliminary academic analysis of the status quo of Palestine. Next, the issue is analyzed under the context of U.N. decisions and international recognitions to determine if there exists a de facto statehood in the Palestinian region. By referring to the dissenting opinion and other underlying legal principles, this exploration seeks to provide a comprehensive understanding of the complex role played by statehood in international law.

II. The Definition of Statehood

The most straightforward way of identifying the statehood of a region is to compare its status quo with established academic definitions. Despite the abundance and development of various theories about statehood, this comment mainly discusses the Montevideo Convention because it was extensively referred to and discussed by the ICC Prosecutor in the request to the PTC,6 and these “classical criteria still form the initial and basic normative requirements for assessing statehood.”7 The first article of the Montevideo Convention on the Rights and Duties of States articulates what can be considered the classical criteria for statehood, laying out four fundamental criteria, which are 1) a permanent population; 2) a defined territory 3) government; and 4) capacity to enter into relations with the other states.8 These criteria collectively form the initial and most classical framework for determining statehood under international law.

While each criterion is critical in its own right and deserves close examination, the focus of this comment is predominantly on the second one—a defined territory. This criterion is closely related to the current Palestinian situation since one of the most significant portions of the PTC’s decision was to expand the Court’s jurisdiction geographically.9 Focusing on the defined territory criterion, this comment aims to shed light on one of the most contentious and significant aspects of Palestinian statehood.

A “defined territory” entails a stable and internationally recognized national boundary. However, due to various factors, Palestine’s boundary has been subjected to ongoing changes and international disputes, leading to a fluid and undetermined territory. Firstly, although the G.A. Resolution 67/19 mentioned the existence of “pre-1967 borders”10 to resolve the territorial dispute between Palestine and Israel, the subsequent Oslo Accords of the 1990s created “interim administrative divisions” (Areas A, B, and C) in the West Bank. For instance, Area B was “areas under Palestinian administration but joint Israeli–Palestinian security.”11 Since these areas are jointly controlled by both Palestine and Israel, they do not constitute internationally recognized borders of an independent sovereign state.

When discussing the border issues of Palestine, it is difficult to ignore the continuous Israeli occupation and annexation of lands in the Palestinian region, as these actions significantly challenged the notion of a defined Palestinian territory. According to Amnesty International:

Over the past 50 years, Israel has forcibly evicted and displaced entire Palestinian communities […] These measures allow Israel to maintain control of Palestinian land and resources […] [and] push Palestinians out of certain areas deemed strategic, such as the fertile Jordan Valley or East Jerusalem.12

The incessant Israeli occupation kept altering the territories controlled by Palestine, and as a result, these instances raised substantial doubts about the existence of a defined territory, as required by the Montevideo Convention criteria to define Palestinian statehood.

III. The United Nations Resolutions & International Recognitions

The decision of the ICC chamber was largely based on the G.A. Resolution 67/19, which passed with majority votes and signified a substantial shift in the international community’s stance towards Palestine. The resolution explicitly stated that “the Palestinian territory occupied since 1967, including East Jerusalem”13 should be still considered as inherently belonging to Palestine, despite their current occupation by Israel. Based on the language and the resolution’s conclusion, the PTC therefore decided to extend its jurisdiction to the regions above. Nevertheless, both their reasonings and the resolution itself can be challenged in confirming the statehood of Palestine, as pointed out by Judge Péter Kovács in his dissenting opinion of the PTC’s decision,14 and this comment explores these two sources of problems in detail in the subsequent section.

Firstly, the fact that the PTC relied heavily on the G.A. Resolution 67/19 points to an underlying assumption: it believed the resolution was a legitimate legal source for the ICC to adhere to and refer to. However, this assumption might be factually suspicious because there only exists a non-binding relationship between the ICC and the U.N. resolution in the context of international law, or as Judge Péter Kovács points out in his dissenting opinion, a “soft law.”15 Different from a resolution reached by the Security Council of the United Nations, which is “binding on all member states,”16 the resolution reached and published by other organs of the U.N. might not be legally binding. According to the UN’s official website, “[g]eneral Assembly’s resolutions are recommendations and not legally binding on Member States.”17 Therefore, for the sake of legal bindingness, G.A. Resolution 67/19 should be considered a soft law or a piece of recommendation for the ICC to seek assistance and reference rather than the golden standard to base its decisions on.

When facing a mere opinion or recommendation from the U.N., the ICC Chamber should realize its limited legal power and henceforth refer to the Rome Statute. Article 12 of the founding legal document of the ICC stipulates the criteria under which the Court can exercise its jurisdiction, and one of the most critical conditions is that “The State on the territory of which the conduct in question occurred” or “The State of which the person accused of the crime is a national” of states to the Rome Statute.18 In this article, the pivotal concept is that a sovereign state should exist before these preconditions for jurisdiction can be met. In the case of Palestine, the situation is complicated by its unsettled territory dispute with Israel, but the one thing to be certain about is that the country’s statehood, despite international sympathy and support has not been and should not be determined by G.A. resolution. While the U.N. resolution provides a critical international perspective in a political sense, the ultimate determination of whether to expand the ICC’s jurisdiction to the disputed areas must align and comply with the legal framework established by the Rome Statute. Therefore, The ICC must balance the international opinions represented by the G.A. Resolution 67/19 with the strict legal standard set forth by the Rome Statute.

Moreover, even if one sets aside the problem with the legitimacy of the resolution and assumes that it is a legally valid document for the PTC to rely its decisions on, a closer examination of the resolution’s wording does not conclusively establish the statehood of Palestine.19 The language used in G.A. Resolution 67/19 is carefully crafted, depicting the complexities and uncertainty lying in the statehood of Palestine.

Firstly, the document sought to “[r]eaffirm […] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.”20 The resolution emphasized the “right to self-determination and to independence,” which is an acknowledgment of a non-existent goal instead of a statement confirming a well-established statehood. The term “independence” is used to imply the fact that the Palestinians have not earned their independence yet. The word “occupied” further indicates the fact that some Palestinian regions are under the control of Israel, implying a lack of Palestinian governmental control or sovereignty over these areas. This adds another shade of ambiguity to the resolution’s implications regarding the statehood of Palestine, and it would be inappropriate to declare the definitive existence of such a state as a sovereign entity under international law.

Moreover, the resolution:

Urge […] all States and the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to self-determination, independence and freedom.21

The language in this suggestion is more evident in that it explicitly points out that the realization of Palestinian statehood is a work in progress that relies upon international support and recognition rather than the current reality. The phrase “early realization” further emphasizes that the process of achieving statehood and independence is ongoing, and there needs to be further development and efforts, both politically and legally, for Palestine to be fully recognized as a sovereign state in the international community under international law.

After the official publication of G.A. Resolution 67/19, the U.N. continues to use similar phrases and words in its subsequent resolutions. For instance, in resolution 74/11, the G.A. “[u]rge[d] all States […] to support the development and strengthening of Palestinian institutions and Palestinian State-building efforts in preparation for independence.”22 In resolution 73/158, the G.A.:

Urge[d] all States and the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to self-determination.23

These resolutions consistently position the statehood of Palestine as a developmental process years after G.A. Resolution 67/19, which indicates that the statehood problem of Palestine is still unresolved today. This perspective from the G.A. itself cast shadows on the validity of using these resolutions as definitive references of Palestinian statehood under a legal context. Henceforth, the reliance of the PTC on G.A. Resolution 67/19 and similar subsequent G.A. resolutions as a legal ground for determining the statehood of Palestine seems to lack a solid foundation.

Objectively speaking, numerous other international organizations and sovereign states fail to acknowledge Palestine’s statehood as an existing fact. Other than the G.A., the United Nations Security Council also considers the independence and statehood of Palestine as a pursuit and objective yet to be realized. In a recent briefing by U.N. Special Coordinator Tor Wennesland, it was explicitly mentioned that:

[He] remain[s] committed to supporting Palestinians and Israelis to end the occupation and resolve the conflict in line with international law, relevant United Nations, resolutions, and bilateral agreements in pursuit of the vision of two States—Israel and an independent, democratic, contiguous, viable, and sovereign Palestinian State.24

By speaking of the independence and sovereignty of Palestine as a “vision” in pursuit, the special coordinator expresses the Security Council’s pessimistic opinion to the current statehood of Palestine. As a collective voice of the Muslim world, the Organisation of Islamic Cooperation’s (OIC) views often reflect the broader opinions of important Islamic countries regarding key regional issues, which rendered their view more significant and convincing.

Additionally, while discussing the issue of Palestine, it is difficult not to refer to the opinions of the Arabic world and the region itself.25 From the perspective of the OIC, a critical representative organization of the Islamic world, spoke in its recent resolution that it urges efforts to “realize” the independence of Palestine.26 Turning to the internal perspective in Palestine, a recent poll conducted by the Palestinian Center for Policy and Survey Research mentioned that “76% believe the prospects for the creation of an independent Palestinian state alongside the state of Israel during the next five years are slim or nonexistent.”27 This finding is particularly striking as it reflects the views of those living in the territories at the heart of the statehood debate. The fact that it was conducted in “West Bank and the Gaza Strip,” the exact territories of controversy in the PTC decision, lends more credibility to the survey and the crucial fact that it aims to express: that Palestine is still not an independent sovereign state.

In short, the statehood of Palestine is a deeply convoluted issue under the context of international law and politics. Although G.A. resolution 67/19 outlines the “statehood” of Palestine, the language used in other U.N. resolutions and the statements of the OIC consistently depict Palestinian statehood as a goal in pursuit instead of an existing fact. This stance is further supported by public opinion in Palestine, where a significant majority express pessimism about the future of establishing an independent state. These factors collectively challenge the validity of using G.A. Resolution 67/19 as a definitive document for important legal decisions regarding Palestinian statehood by the PTC. There should be a more cautious and thorough examination of the issue of Palestinian statehood before discussing whether the ICC has jurisdiction over the occupied territories in the Palestinian region.

IV. Conclusion

Using the dissenting opinion by ICC Judge Péter Kovács as a starting point, this comment analyzes a crucial aspect of international criminal law: the determination of statehood. Adopting a methodical approach, the analysis starts by comparing the academic definition of statehood and Palestine’s status quo. It then examines the objective facts through U.N. resolutions and international recognitions to assess Palestine’s statehood. The discussions lead to a significant conclusion: until the statehood of Palestine is definitively and officially established, it is premature and legally irresponsible for the ICC to extend its jurisdiction to the disputed territories as mentioned in its decision on the Palestine issue.

Furthermore, this comment sheds light on the path for future deliberations on similar cases where the question of statehood comes into play in international law. It emphasizes the importance of a thorough analysis in interpreting statehood under the context of international law, particularly in complicated cases marked by geographical uniqueness and continuous unsettled disputes.

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

1.
Press Release, ICC, ICC Pre-Trial Chamber I Issues Its Decision on Prosecutor’s Request Related to Territorial Jurisdiction Over Palestine (Feb. 5, 2021) [hereinafter Territorial Jurisdiction Decision Announcement], available online. ↩
2.
Situation in the State of Palestine, ICC-01/18-143-Anx1, Judge Péter Kovács’ Partly Dissenting Opinion (ICC PTC I, Feb. 5, 2021) [hereinafter Dissenting Opinion], available online. ↩
3.
Territorial Jurisdiction Decision Announcement, supra note 1. ↩
4.
Dissenting Opinion, supra note 2. ↩
5.
Rome Statute, Art. 19. ↩
6.
Dissenting Opinion, supra note 2. ↩
7.
Chike B. Okosa, Statehood Theory: Current Scholarship on the Various Theories of Statehood in International Law, 1 Nile U. L.J. 107 (2018), available online. ↩
8.
Montevideo Convention of the Rights and Duties of States, Art. 1, 165 LNTS 19 (Dec. 26, 1933, entered into force Dec. 26, 1934) [hereinafter Montevideo Convention], available online. ↩
9.
Territorial Jurisdiction Decision Announcement, supra note 1. ↩
10.
G.A. Res. 67/19, UN Doc. A/RES/67/19, Status of Palestine in the United Nations (Nov. 29, 2012), available online. ↩
11.
Oslo Accords, Encyclo. Britannica, available online (last visited Dec. 13, 2023). ↩
12.
Amnesty International, Israel’s Occupation: 50 Years of Dispossession (Jun. 7, 2017), available online. ↩
13.
Oslo Accords, supra note 10. ↩
14.
Dissenting Opinion, supra note 2. ↩
15.
Id. ↩
16.
S.C. Resolutions, UNRCCA (Sep. 2, 2020), available online. ↩
17.
How Decisions are Made at the UN, Model UN, available online (last visited Dec. 8, 2023). ↩
18.
Rome Statute, supra note 5, at Art. 12. ↩
19.
Dissenting Opinion, supra note 2. ↩
20.
Territorial Jurisdiction Decision Announcement, supra note 1. ↩
21.
Id. ↩
22.
G.A. Res. 74/11, UN Doc. A/RES/74/11, Peaceful Settlement of the Question of Palestine (Dec. 9, 2019), available online. ↩
23.
G.A. Res. 73/158, UN Doc. A/RES/73/158, The Right of the Palestinian People to Self-determination (Jan. 9, 2019), available online. ↩
24.
Tor Wennesland, UNSCO, Briefing to Security Council on Implementation of S.C. Res. 2334 (Sep. 27, 2023), available online. ↩
25.
Dissenting Opinion, supra note 2. ↩
26.
OIC Adopts Resolution on Annexation, UNISPAL (Dec. 6, 2020), available online. ↩
27.
Palestinian Center for Policy and Survey Research, Public Opinion Poll No. 89 (Sep. 9, 2023), available online. ↩

michelleg30
52284
February 21, 2024
9:22 am

Transitional Justice as an Alternative to Prosecution in the Israel–Palestine Conflict

I. Introduction

War is not “pareto optimal.”1 According to the “bargaining theory of war,” a sustainable peace agreement is more beneficial to both sides than continued conflict.2 Transitional justice, the “processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation,” would more effectively address the core issues of the Israel–Palestine conflict than would prosecution by the International Criminal Court (ICC).3 Whereas the underpinnings of criminal justice are retribution and deterrence, those of transitional justice are reconciliation, restorative justice and “acknowledgement of past injustices reflected in perpetrators accepting historical responsibility.”4 Transitional justice is more so about conflict resolution than punishment. Thus, transitional justice could encourage a beneficial forward-focused approach to the conflict between Israel and Palestine in a way that criminal prosecution could not.5

The origin of the geographical and geopolitical conflict between Israel and Palestine, dates back to the 1917 “Balfour Declaration,” which expressed support for the “establishment in Palestine of a national home for Jewish people.”6 Between 1922 to 1947, Jewish immigration increased to what are now Israel and Palestine.7 Palestinian demand for independence and resistance to the large-scale immigration led to the 1937 Palestinian rebellion.8 In 1948, Israel proclaimed its independence and through the 1948 and 1967 Arab–Israeli Wars, began increasing its settlements in the Gaza Strip and West Bank, displacing approximately half a million Palestinians.9 Although the 1948 and 1967 Arab–Israeli Wars came to an end, Israel and Palestine’s war for independence has not.

Part II of this comment outlines what seem to be the core issues of the Israel–Palestine conflict: territory, refugees, and extremist organizations. Decades of violence have ensued because Israel and Palestine’s war for independence is “central to the collective identity of both groups.”10 Both Palestinians and Israelis feel they have a connection to the land of what is modern day Israel and West Bank that the other side does not acknowledge.

Assuming crimes have been committed by both Israelis and Palestinians, an investigation and criminal prosecution by the ICC would ultimately impede rather than deliver justice to the victims as it is not equipped to solve a refugee crisis or a territory dispute, two issues characteristic of the conflict. Thus, by failing to adequately address these issues, ICC prosecution would overlook and consequently undermine their vital relevance to the conflict’s proliferation. Part III of this comment discusses how transitional justice could be utilized to address the core issues in this conflict.

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.
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.
Id. at 5. ↩
3.
Transitional Justice and Human Rights, OHCHR, available online (last visited Dec. 7, 2023). ↩
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.
Id. ↩
6.
The Question of Palestine, UNISPAL, available online (last visited Dec. 6, 2023). ↩
7.
Id. ↩
8.
Id. ↩
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.
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.
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.
Khoury, supra note 11, at 156, quoting Uri Savir, The Process 15 (1998), paywall. ↩
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.
Khoury, supra note 11, at 156. ↩
15.
Savir, supra note 12, at 156. ↩
16.
Id. ↩
17.
What’s the Israel–Palestinian Conflict About and How Did It Start?, Reuters, Oct. 11, 2023, available online. ↩
18.
Id. ↩
19.
Leila Hilal, ICTJ, Transitional Justice Responses to Palestinian Dispossession: Focus on Restitution 4 (Aug. 2012), available online. ↩
20.
Id.; Ingrid Jaradat Gassner ed., BADIL, Survey of Palestinian Refugees and Internally Displaced Persons 2008–2009 (2009), available online. ↩
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.
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.
Kapshuk, supra note 4, at 75, quoting Taba Non-Papers, Palestinian Position Paper On Palestinian Refugees and the Israeli Response (2001), available online. ↩
24.
Kapshuk, supra note 4, at 75. ↩
25.
Dahlia Scheindlin, Neither Intractable Nor Unique: A Practical Solution for Palestinian Right of Return, The Century Foundation (Apr. 28, 2020), available online. ↩
26.
Id. ↩
27.
Id. ↩
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.
Id. ↩
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.
David Newman, Shared Spaces—Separate Spaces: The Israel–Palestine Peace Process, 39 GeoJournal 363, 365 (Aug. 1996), paywall, doi. ↩
32.
Id. ↩
33.
Id. ↩
34.
Id. ↩
35.
What Are Area A, Area B, and Area C in the West Bank?, supra note 30. ↩
36.
Mohamed Galal Mostafa, Religion and the Israel–Palestinian Conflict: Cause, Consequence, and Cure, Fikra Forum (May 31, 2018), available online. ↩
37.
Id. ↩
38.
Id. ↩
39.
Id. ↩
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.
Robinson, supra note 40. ↩
42.
Nicole Narea, A Timeline of Israel and Palestine’s Complicated History, Vox, Oct. 19, 2023, available online. ↩
43.
Id. ↩
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.
Id. ↩
46.
Scheindlin, supra note 25. ↩
47.
Kapshuk, supra note 4, at 76, citing Sammy Smooha, The Index of Arab–Jewish Relations In Israel 38 (2013), available online. ↩
48.
Scheindlin, supra note 25. ↩
49.
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50.
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April 4, 2024
11:37 am

While the International Criminal Court aims to curb criminal behavior and work towards justice and reconciliation, its actual impact in this sensitive region remains uncertain.

As with any conflict between sovereign states, the ICC faces jurisdictional obstacles that could limit or delay its involvement. Both Israel and Hamas could challenge the Court's authority as non-state parties to the Rome Statute. Moreover, the political realities of this long-standing dispute may impede impartial investigations or prosecutions.

At the same time, the specter of international criminal liability could provide an added incentive for de-escalation and adherence to humanitarian laws. Periodic assessments of alleged war crimes by all sides, if conducted fairly and transparently, may help dispel accusations and restore some trust over time. The Court's role in documenting offenses could also aid future accountability efforts and discourage repeat criminal behavior.

Overall, while the ICC alone cannot resolve the deeper political issues fueling this conflict, its monitoring presence and commitment to neutral, evidence-based findings offer a potential avenue for post-conflict reconciliation. The Court's impact will depend on the cooperation it receives and whether justice is perceived as credibly served, but initial deterrence of future crimes may be an achievable contribution worth supporting. The path forward remains uncertain, but progress through lawful and diplomatic means is in everyone's long-term interests!

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53245
April 4, 2024
11:51 am

The relationship between the International Criminal Court (ICC) and peace should not be seen as a direct one. Just as the ICC aims to achieve its retributive goals by activating national justice systems, the same approach should be expected for the attainment of its restorative goals. International tribunals can promote peace and reconciliation by triggering domestic legal developments in the countries they target, even if they are negatively perceived by the local population. When justice is administered at the national level, it is more likely to be seen as relevant and legitimate by the local population. This perception increases the potential for restorative effects, such as humanizing victims and perpetrators, reducing feelings of revenge, and creating conditions conducive to peace and reconciliation. This is especially true when domestic accountability procedures target both sides of the conflict, which may be the case in Israel.

The recent visit of the ICC Prosecutor to Israel and Palestine and the intensification of the investigation into the "Situation of Palestine" can be attributed to several reasons. These include the gravity of the crimes committed, such as sexual violence and crimes against children, which are priority areas for the ICC. Additionally, the holding of hostages by perpetrators and the urgent need to address the high death toll and humanitarian catastrophe in Gaza caused by the conflict contribute to the pressure on the ICC to act swiftly. The ICC's prompt action could also aim to mitigate the increasing violence by Jewish settlers against Palestinians in the West Bank and inflammatory statements by Israeli politicians regarding Palestinians.

The question at hand is whether the ICC's revamped investigation of Israel/Palestine could promote peace and reconciliation between Israelis and Palestinians. The ICC's goal of promoting peace is explicitly stated in the Rome Statute, which recognizes that international crimes threaten global peace, security, and well-being. It is important to understand that the ICC's goals can be divided into retributive goals (establishing accountability, reducing impunity, punishing) and restorative goals (promoting peace, reconciliation, healing, rehabilitation). Transitional justice theories and practices have shown that these goals are complementary and mutually reinforcing, moving away from the dichotomy of "peace versus justice." However, some argue that an international criminal tribunal like the ICC, which is geographically and culturally distant from the target societies, may not have a significant impact on delicate domestic processes such as peacebuilding and reconciliation.

There is less controversy surrounding the ICC's ability to achieve its retributive goals. However, it is acknowledged that the ICC's success in this regard depends on the cooperation of national justice systems in addressing atrocities, even in cases where the ICC is involved. The ICC's limited resources and cumbersome procedures mean that it can only try a small fraction of the perpetrators associated with each situation. Therefore, the ICC's retributive goals can only be achieved if national courts also take action. The ICC's Complementarity Principle, enshrined in the Rome Statute, was designed to incentivize domestic trials for atrocity crimes. According to this principle, the ICC will not intervene if a state with jurisdiction is genuinely investigating or prosecuting the case, unless the state is unwilling or unable to do so. This principle assumes that states prefer to avoid scrutiny by the ICC and will initiate their own investigations and trials to prevent cases from reaching the ICC. Other international criminal tribunals, such as the ICTY and ICTR, have successfully encouraged domestic justice systems to address atrocities through referral of cases to national courts.

In conclusion, while some argue that an international criminal tribunal like the ICC may not have a significant impact on peacebuilding and reconciliation processes, there is evidence to suggest that the ICC's engagement can promote peace and reconciliation indirectly. By incentivizing domestic accountability and triggering national legal developments, the ICC can contribute to the restoration of justice and the creation of conditions conducive to peace and reconciliation in Israel and Palestine.

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michelleg30: Transitional Justice as an Alternative to Prosecution in the Israel–Palestine Conflict I. Introduction War is not “pareto optimal.”1 According to the “bargaining theory of war,” a sustainable peace agreement is more beneficial to both sides than continued conflict.2 Transitional justice, the “processes and mechanisms associated with a society’s attempt to come to terms with a legacy of... (more)
huangz2024: The Matter of Statehood on the Palestine Issue I. Introduction In 2021, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) received a request from the Prosecutor related to territorial jurisdiction over Palestine and issued its response and decision to the request. The main conclusion of the decision was to extend the jurisdiction to “the territories occupied by Israel since 1967, namely Gaza and the West Bank,... (more)
Katharina Schapfeld: Preventing Genocide: What Are the Duties of State Parties Under the Convention on the Prevention and Punishment of the Crime of Genocide and How Could They Be Fulfilled in the Current Situation? I. Introduction “There can be no more important issue, no more binding obligation, than the prevention of genocide.”1 The year 2023 doesn’t only mark the 75th anniversary of the... (more)
freyaschmidt: How Can Israel Ensure Proportionality in its Response to Hamas’ Attacks? I. Introduction With Hamas’ attack on Israel on October 7, 2023, the situation that has been smoldering for decades has entered the next round. It is accompanied by countless legal questions that revolve around the legal classification of Palestine and thus the admissibility of the International Criminal Court (ICC) and the role of international (... (more)
Jordan Murphy: The Claim of Genocide Filed Against Israel: The Elements of a Genocide Charge and its Application to the Situation in Palestine Speaking on the claim of genocide filed against Israel at the International Criminal Court (ICC) in November 2023, Palestine representative Gilles Devers asserted that the requisite criteria having been established in Gaza is not an opinion but “a reality of law.”1 Such a claim is a strong one: only two cases have... (more)
AA375: The Israel/Hamas Situation Through the Lens of the ICC Introduction The International Criminal Court (ICC) was established to investigate, prosecute, and try individuals for the most serious crimes, namely the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.1 The ICC has a responsibility to tackle situations of high gravity affecting the interests of the international community... (more)
Pilgrim: Palestinian Statehood Under the Montevideo Convention: An Unconventional Approach I. Introduction For the International Criminal Court (ICC) to have jurisdiction over the situation in Gaza and Israel after the Hamas terror attacks of October 7, 2023, Palestine must be a State.1 The Montevideo Convention on the Rights and Duties of States (Montevideo Convention) provides a four-element test for Statehood.2 To be a State under... (more)
Kellan Grant: I. Introduction On October 7, 2023, a widespread surprise attack on Israel was launched by Hamas leaders, commanders, and militants in which they invaded Israeli towns from the Gaza Strip. Since then, an ongoing conflict between Israel and Hamas has ensued. Devastatingly, many civilians in both Israel and the Palestine area have lost their lives as a result. Since October 7, 2023, there have been numerous assertions made that various crimes are being,... (more)
Joan Komolafe: What is the Threshold of the Right to Defend Oneself? An Analysis of the Current Israeli–Palestine Conflict, Under the Legal Definitions of the Rome Statute I. Abstract Few hostilities have consumed the international psyche and caused as much polarization as the Israel and Palestine conflict. In particular, the intensification of violence between Israel and Gaza in October of 2023 has caused a global re-examination of... (more)
MelissaHernandez: The October 7th attacks launched what appears to be one of the worst humanitarian crises in the last decades. With more than 1,200 deaths in Israel, mostly civilians, killed in a single day, and about 240 hostages, this day is being characterized as “the deadliest day for Jews since the holocaust.”1 On the other hand, the Hamas attack triggered an Israeli response that has resulted in more than 11,000 deaths in Gaza, which would surpass the total number of... (more)
msperling: Palestine at the International Criminal Court: Overzealous Jurisdiction Preventing Peacemaking Introduction On October 7, 2023, fighters affiliated with the Hamas government of the Gaza Strip attacked Israel, raping, torturing, and kidnapping Israeli men, women, and children. Around 1200 people, a vast majority of whom were civilians, were killed, and 240 were taken hostage. More than 130 of the hostages are still in captivity or have since been... (more)