Argument

The Factual Background

Following World War I, the Gaza Strip was part of the British Mandate of Palestine until the dissolution of this Mandate in May 1948. The Gaza Strip was then controlled by Egypt until 1967 under a military government. In the course of the war of June 1967, the Gaza Strip came under the control of Israel that established therein a military administration. In 1994, the areas populated by Palestinians in the Gaza Strip were transferred to the jurisdiction of the Palestinian Authority, established under the Oslo Accords concluded between Israel and the PLO.5 This was meant to be a temporary step on the way to a final resolution of the conflict. Unfortunately, attempts to finalize a permanent status agreement failed. One of the main spoilers was Hamas, which intensified its terrorist campaign whenever chances of progress in the peace negotiations seemed more tangible. Any compromise which accepted Israel’s right to exist ran counter to Hamas’s basic tenets.6

In 2005, Israel implemented the Disengagement Plan, withdrew its remaining forces from the Gaza Strip, dismantled the settlements that existed in this area, and relinquished control over Gaza to the Palestinian Authority.7 According to Israeli public statements, the disengagement was aimed to reduce friction with the Palestinian population and improve the Palestinian economy and living conditions.8 Unfortunately, the political and security situation in the Gaza Strip continued to deteriorate. In January 2006, the Hamas organization won the elections for the Palestinian Legislative Council. In June 2007, Hamas took over the Gaza Strip in a violent coup, involving the assault upon and murder of dozens of Fatah officials. Following this coup, Hamas gained control over all the government apparatus in Gaza. Once in control, Hamas intensified its attacks against Israel which led Israel to impose certain limitations on the transfer of goods and on the passage of people between Israel and the Gaza Strip. The border between Gaza and Egypt remained outside Israel’s control, while Israel naturally retained control over the crossings between Israel and Gaza.9

Since the takeover of the Gaza Strip by Hamas, several rounds of military attacks and counterattacks occurred over the years, but Hamas retained its control over the area. It has managed to receive hundreds of millions in international aid, overt and covert injections of cash from Iran and other ideological partners, as well as cryptocurrency, taxes, extortion, and smuggling, according to current and former U.S. officials and regional experts.10 A significant part of this wealth was invested in a buildup of its military capabilities in preparation for its war against Israel.

The current war between Israel and Hamas began with an unprovoked attack led by Hamas against Israel.11 A concise description of this attack was given by Dr. Tal Becker, the legal advisor of Israel’s Ministry of Foreign Affairs (MFA) in his statement before the ICJ:

On Saturday October 7th, a Jewish religious holiday, thousands of Hamas and other militants breached Israeli sovereign territory by sea, land and air, invading over 20 Israeli communities, bases and the site of a music festival. What proceeded, under the cover of thousands of rockets fired indiscriminately into Israel, was the wholesale massacre, mutilation, rape and abduction of as many citizens as the terrorists could find before Israel’s forces repelled them. Openly displaying elation, they tortured children in front of parents, and parents in front of children, burned people, including infants, alive, and systematically raped and mutilated scores of women, men and children. All told, some 1,200 people were butchered that day, more than 5,500 maimed, and some 240 hostages abducted, including infants, entire families, persons with disabilities and Holocaust survivors, some of whom have since been executed; many of whom have been tortured, sexually abused and starved in captivity.12

The attack by Hamas was the bloodiest in Israel’s history.13 In comparative terms, it is the worst terror attack against a State in recent history.14 As President Biden invoked in his reaction to the attack, it is as if 40,000 to 50,000 Americans had died on 9/11.15 Hamas has officially declared that it will strike Israel “again and again” until it destroys Israel.16

In response to the widespread attack by Hamas, Israel responded by aerial attacks in the Gaza Strip, followed by a ground incursion which began on October 26th. Israel based its forcible response against Hamas on its right to defend its citizens and to secure the release of the hostages. This right was acknowledged by States across the world.17 Israel has also come under attack by Iranian proxies, including Hezbollah from the north and the Houthis from Yemen, with a declared intention to support the military campaign of Hamas.

Due to the continuous threat posed by Hamas, over 155,000 residents of the area in Israel adjacent to the Gaza Strip were compelled to leave their houses. An additional 60,000 Israelis have left their homes close to the northern border between Israel and Lebanon due to attacks by the Hezbollah, leading to more than 215,000 internally displaced Israeli citizens within the borders of Israel.18

The fighting in the Gaza Strip has been going on for four months. Even though Israel has applied extensive force, Hamas still retains its ability to fight the Israeli forces, to fire rockets and mortars towards Israel, and to demonstrate its control over parts of the area.19 To date, 225 Israel Defense Forces (IDF) soldiers have been killed in the military operations inside the Gaza Strip (this does not include the soldiers killed on October 7th inside Israel).20 Hamas has apparently lost thousands of its fighting forces, although the exact number is unknown.21

The Legal Framework

Genocide is considered the most serious crime under international law, often described as the “crime of crimes.”22 It portrays the most heinous of atrocities against humanity, the intentional attempt to annihilate a people. The term “Genocide” was coined by Raphael Lemkin, a polish Jew, whose work to codify the crime of genocide was motivated by his personal experience—the efforts of the Nazis and their collaborators to exterminate the Jewish people.23

Genocide was codified as an independent crime in the Genocide Convention. The definition of the crime of genocide as contained in Article II of the Genocide Convention was adopted by Article 6 of the Rome Statute of the International Criminal Court (Rome Statute) which defines genocide as follows:

[A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. (a) Killing members of the group;

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

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

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

5. (e) Forcibly transferring children of the group to another group.

The definition of genocide comprises two elements: a physical element of “acts” and a mental element of “intent.” The acts must be deliberate acts.24 In addition, the definition requires the establishment of specific and special intent—dolus specialis—to destroy, “in whole or in part the group as such.”25 Hence, in order for genocide to be established, the intent—required for each of the individual acts listed in the definition—must be accompanied by a special intent to destroy the protected group.26

This specific intent is an essential characteristic of genocide, which distinguishes it from other serious crimes, such as persecution or other ordinary crimes against humanity, and of “other reasons or motives the perpetrator may have. Great care must be taken in finding in the facts a sufficiently clear manifestation of that intent.”27 Accordingly, widespread acts of killing or causing other serious harm do not constitute genocide in the absence of such specific and special intent, although they may certainly amount to other serious international crimes, such as war crimes or crimes against humanity.28

The existence of a plan or policy, while not required by the ad hoc tribunals, can be an important factor in inferring genocidal intent. Special intent can also be deduced from circumstantial evidence, including the words and deeds of the perpetrators. Relevant facts and circumstances can include:

[T]he general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group, or the repetition of destructive and discriminatory acts.29

When inferring genocidal intent from a pattern of conduct, it is necessary that this inference be the only reasonable one to draw.30

It is worth noting that the ICC Elements of Crimes, as opposed to the ad hoc tribunals and the Genocide Convention, require also that each of the five enumerated acts in the definition “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.”31 In the Bashir arrest warrant decision, the Pre-Trial Chamber stressed that this contextual element “is only triggered when the threat against the existence of the targeted group, or part thereof, becomes concrete and real, as opposed to just being latent or hypothetical.”32

The ICJ made clear in Yugoslavia v. Belgium that the Genocide Convention was not designed to address the brutal impact of intensive hostilities on the civilian population, even when the use of force raises “very serious issues of international law” and involves “enormous suffering” and “continuing loss of life.”33

This was also clarified in the discussions of the drafters of the Genocide Convention:

The infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide. In modern war belligerents normally destroy factories, means of communication, public buildings, etc. and the civilian population inevitably suffers more or less severe losses. It would of course be desirable to limit such losses. Various measures might be taken to achieve this end, but this question belongs to the field of the regulation of the conditions of war and not to that of genocide.34

To assess whether the actions by the parties to the ongoing armed conflict between Israel and Hamas have been engaged in acts that might amount to genocide we must examine both the acts and the intent. One must bear in mind that to conclude that a crime of genocide has taken place this must be proven beyond a reasonable doubt.

Applying the Law to the Facts

To be considered genocide, acts must fall into at least one of the five categories listed in the definition of the crime and committed with a specific intent to destroy a particular group as such. These components must be examined in tandem. I examine each of the acts included in the definition and evaluate whether there is ground to conclude that they are taking place within the conflict in the Gaza Strip. Categories (a) and (b) are examined together, followed by an examination of categories (c) and (d). Category (e) is irrelevant to the case.

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;

It is claimed that the high number of Palestinian casualties in the Gaza Strip, especially of children and women, who have been killed, injured, or lost family members, proves that Israel has committed an act of genocide under these two categories.

Killing in sub-paragraph (a) means actions that are intended to cause death, although not necessarily planned in advance.35 “Causing serious bodily or mental harm to members of the group” in sub-paragraph (b) refers to harm that must constitute “a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.”36 Although the harm does not need to be permanent or irreversible, it must exceed mere temporary unhappiness, embarrassment, or humiliation.37

Both categories refer to cases in which the killing, or causing serious bodily or mental harm, is intentional.38 As stressed by the ICJ:

[I]f […] the attacks were exclusively directed at military targets, and that the civilian casualties were not caused deliberately, one cannot consider those attacks, inasmuch as they caused civilian deaths, as falling within the scope of Article II(a) of the Genocide Convention.39

A similar idea was expressed by several states in their official positions on the case between Russia and Ukraine:

The occurrence of civilian casualties during the course of armed conflict is not evidence of genocidal action or genocidal intent, if it is not designed to destroy a group or part of a group.40

In other words, if death or harm are caused unintentionally and are a collateral consequence of an action that has a legitimate military purpose, then these acts will not fall into the definition of genocide.

The question then is whether the high number of casualties in the Gaza Strip indicates that Israel is deliberately killing, or physically or mentally harming, innocent Palestinian civilians with an intent to bring about the destruction of the Palestinians as a group.

According to Hamas figures there are over 27,000 Palestinian casualties in the Gaza Strip. This figure should be treated with caution, as Hamas is hardly a reliable source.41 There are many examples of disinformation, including fake footage of casualties.42

When evaluating the number of casualties, it is important to acknowledge that many thousands of casualties are in fact militants of Hamas and other terrorist organizations.43 In addition, there are civilians who are taking direct part in hostilities, for example by directing terrorists out of tunnels towards IDF soldiers, thus becoming lawful targets under the Laws of Armed Conflict, also known as international humanitarian law (IHL).

Furthermore, civilian deaths are also directly caused by Hamas. There have been reported cases of Hamas purposefully firing towards civilians who were trying to evacuate areas following warning of impending attacks.44 In addition, civilians have been killed as a result of booby traps in houses and alleyways placed by Hamas or from the estimated 1900 rockets misfired by Hamas and other terrorist organizations that landed inside Gaza.45

One telling example is the blast at the Al Ahli Hospital on October 17th. Hamas immediately claimed that the IDF attacked the hospital and killed 500 civilians; headlines around the world rushed to repeat this claim and violent demonstrations erupted. The IDF later proved, and United States intelligence and other national intelligence agencies independently confirmed, that the blast was the result of a failed rocket launch from within Gaza. Interestingly, once this was revealed, the number of claimed casualties from the attack dropped to less than 100.46

Nevertheless, undoubtedly many casualties in the Gaza Strip are the direct result of IDF military operations. The question, for the purpose of the current analysis, is whether it is reasonable to believe that these civilians were intentionally targeted, with an intent to destroy them as a group, or whether there is an alternative reasonable explanation.

Israel has declared time and again that it does not intentionally target civilians, but rather is aiming its attacks and military operation towards lawful military targets, which include militants of Hamas and other terrorist organizations and military infrastructure. It claims that any civilian casualties are a regrettable yet unavoidable result of such attacks.47 In order to assess this explanation, the operational reality of the armed conflict taking place in the Gaza Strip must be understood.

The Gaza Strip has been under Hamas control for the past seventeen years. During these years, Hamas has developed immense military capabilities. These were clearly evident from the high level of sophistication of the October 7th attack. Furthermore, the IDF forces operating in the Gaza Strip since then have uncovered the staggering extent of the military infrastructure Hamas has devised. Hamas has smuggled countless weapons into Gaza and has turned large swathes of the civilian infrastructure into a sophisticated terrorist stronghold. The main feature of this stronghold is a massive warren of underground tunnels, several hundred kilometers in length, throughout the Strip, with thousands of access points and terrorist hubs located in homes, mosques, United Nations facilities, schools, and hospitals.48

Since October 7th, over 11,000 rockets and mortars have been fired towards Israel.49 While Israel’s aerial defenses (Iron Dome) have intercepted many of these, many others have hit residential areas, resulting in death and injury, and causing extensive damage to homes, hospitals, public buildings, and agriculture areas. These rockets and mortars are fired from within civilian buildings, including from places adjacent to sensitive sites like hospitals and U.N. facilities.50 In addition, IDF soldiers operating in the Gaza Strip are constantly being attacked by terrorists ascending from underground tunnels and appearing from civilian buildings. This is not a one-sided operation conducted by a strong military against a weak group of resistance fighters. This is a full-scale war against a sophisticated enemy, deeply entrenched in the combat area which is placed within the civilian infrastructure that is under its control.

Additionally, the tactics of Hamas make it difficult to distinguish between its terrorist operatives and civilians. The terrorist operatives do not wear uniforms and they fight amidst civilians. Hamas is widely estimated to have over 30,000 terrorist operatives fighting on its behalf and is known to bring minors no older than 15 or 16 into its ranks.51 In addition, as mentioned, civilians are often directly involved in assisting Hamas terrorist activities. Furthermore, Hamas has an established practice of using civilians as human shields, including by actively hiding behind civilians.52

All of these facts indicate that the operational environment makes it immensely difficult to fight Hamas terrorists and destroy its military capabilities without causing incidental harm to civilians.

In addition, Israel has presented extensive measures it has taken to minimize harm to civilians from its attacks. According to Israeli official data, the IDF has dropped millions of leaflets over areas of expected attacks with instructions to evacuate and how to do so, broadcast countless messages over radio and through social media warning civilians to distance themselves from Hamas operations, and made over 70,000 individual phone calls, warning of impending attacks.53 Moreover, as presented by the IDF, the air force has routinely aborted attacks when the presence of civilians is detected.54

The significant efforts and resources Israel is investing in minimizing harm to civilians are inconsistent with the claim that it is deliberately targeting civilians. Whether Israel is applying sufficient care to spare civilian lives and whether the attacks meet the principle of proportionality, namely that the expected collateral harm to civilians from the attack is not excessive to the military advantage anticipated from it, are different questions that refer to the adherence to the rules of IHL.

Furthermore, it is worth noting that in cases dealing with genocide, courts have stressed that even when mass killings have been committed, the mere fact that more members of a targeted group could have been killed, but were not, may indicate a lack of the dolus specialis required to prove genocidal intent.55 This makes it even more evident that Israel is far from fulfilling this condition by its conduct in the Gaza Strip. Israel has the means to cause far more damage in the Gaza Strip from the air, if it wished to do so. Instead, it is conducting a complicated combined aerial and ground operation, placing its forces in harm’s way, and enabling Hamas to retain its strongholds. This does not reflect an intention to wipe out the Palestinians in Gaza, not even remotely.

All of the above analysis leads to a clear conclusion that Israel cannot be viewed as engaged in the actions listed in categories (a) and (b) of the definition with a genocidal intention to destroy the Palestinian people.

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

This category covers “methods of destruction that do not immediately kill the members of the group, but ultimately seek their physical destruction.”56 The ICC Elements of Crimes define the term “conditions of life” to encompass, but not necessarily be restricted to, “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”57 This category differs from the previous two, as it does not mandate a specific outcome but instead necessitates that the conditions are “calculated” to bring about the intended result.

The claim that Israel is inflicting on the Palestinian people in the Gaza Strip “conditions of life calculated to bring about its physical destruction in whole or in part” rests on three main factual circumstances:

1. the high level of destruction of property stemming from Israel’s military operation in the Gaza Strip;

2. the calls to large parts of the civilian population to evacuate certain areas, described as forced displacement; and

3. the dire humanitarian situation, claimed to be the result of depriving access to humanitarian relief.

To fit the definition of genocide an action must be carried out with a deliberate intention to inflict conditions of life calculated to bring about the physical destruction of the group. Therefore, one must examine whether the way Israel is operating indicates such a deliberate intention.

The High Level of Destruction

As already explained, Hamas applies a strategy of using civilian objects and protected sites for military purposes. Houses, schools, mosques, hospitals, United Nations facilities, and shelters are all abused for military purposes by Hamas, including use as rocket launching sites. Hundreds of kilometers of tunnels have been dug by Hamas under populated areas in Gaza. Under the rules of IHL, objects used for military purposes are legitimate targets. This means that the fact that there is widespread damage to buildings and infrastructure in the Gaza Strip due to IDF operations does not necessarily mean that unlawful attacks under IHL have taken place, even when the attacks are directed at seemingly civilian structures.

It is also important to note that much of the damage is compounded by the way Hamas operates. Thousands of buildings were destroyed because they were booby-trapped by Hamas. In addition, targeting tunnels used by Hamas often causes many structures above to collapse. Damage was also caused by over hundreds of indiscriminate terrorist rockets that misfired and landed in Gaza itself.58

Many hospitals in the Gaza Strip have been severely damaged, which impacts the access of Palestinians to medical treatment. Israel has explained that due to the systematic military use of hospitals by Hamas, which is a grave violation of IHL, they have become inevitably engulfed in the fighting. To minimize this risk, it contends, the IDF has reached out to hospitals and offered assistance in relocating patients and staff to safer areas, and has taken much effort to minimize damage and disruption.59 Despite these attempts, damage and harm have occurred to hospitals situated in the vicinity of hostilities. Given the overwhelming evidence of Hamas’s military use of these facilities, the fact that they have been damaged during hostilities cannot serve as proof of an intention to deprive Palestinians of health care, but rather should be considered a direct result of being situated in the heart of an active war zone.

To conclude, harm caused to lawful military objectives, and harm caused as a result of Hamas’ actions of using civilian infrastructure for its military purposes, cannot lead to a conclusion that such damage is caused with a deliberate intention to inflict on the Palestinians conditions of life to bring about their physical destruction. This is so even if one believes that some of the harm could have been avoided. Consequently, it does not fall into category (c) in the definition of genocide.

The Calls to Evacuate Certain Areas

During the military campaign, Israel has called civilians to evacuate certain areas of intensive hostilities. Approximately 1.7 million Palestinian left their homes from the northern part of Gaza to the south. Some had to move several times, as the fighting reached the areas they had moved into.60 The claim is made that this amounts to an unlawful measure of forced displacement. Israel denies this allegation.

Israel contends that this was a measure aimed at protecting civilians from impending attacks. According to Israel, the IDF urged civilians in the north part of the Strip to evacuate to southern Gaza for over three weeks before it started its ground operation. This was done despite the fact that it meant losing the element of surprise and creating operational challenges by providing Hamas with advance knowledge of where and when the IDF would be operating. Israel explains that the IDF maintains a special unit (the Civilian Harm Mitigation Unit) that is tasked with providing advance notice of areas in which the IDF intends to intensify its activities, co-ordinate travel routes for civilians, and secure these routes. The IDF has also enacted localized pauses in its operations to allow civilians to move. It does this even though Hamas does not agree to do the same and has even attacked IDF forces securing humanitarian corridors.61

Evacuation of civilians is recognized under IHL as one of the measures that may be implemented to protect civilians from the effects of ongoing hostilities. Indeed, such evacuation may even amount to a duty that the party to the conflict has toward civilians. While temporary evacuation undoubtedly involves hardship and suffering, it is preferable to remaining in areas of intensive hostilities, all the more so when Hamas makes a concerted effort to use those civilians as human shields.

The explanation given by Israel to the rationale of calling upon civilians to leave the combat zones finds a strong foundation under IHL and is reasonable given the operational reality in the Gaza Strip.62 This does not undermine the fact that the civilians in Gaza are indeed suffering as a result of their uprooting from their houses. However, the mere existence of such hardship cannot substantiate a conclusion that this suffering was the intentional result of this measure. It is in fact a tragic outcome of living in a war zone.

While the notion is unsubstantiated, even if we assume that the actions were intended for ethnic cleansing of the area, such actions, by themselves, would not constitute genocide. This was clearly stated by the ICJ:

Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous,’ nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement.63

Similarly, the ICTY ruled that even cases of actual expulsion of a group or part of a group do not necessarily suffice to be considered genocide.64

Admittedly, there are cases in which acts described as ethnic cleansing could amount to genocide, namely when they are carried out with a specific intent to bring about the destruction of the group, as distinct from its removal from the region.65 However, even if one does not accept Israel’s explanation that the evacuation of the Palestinians from the northern part of Gaza was intended to protect them from the effects of the hostilities, it is still baseless to argue that this action indicates that the intention was to bring about their destruction. The efforts made to enable a safe evacuation actually prove the opposite.

Therefore, it seems untenable to conclude that the evacuations of civilians in the context of the current war can be viewed as carried out with a deliberate intention to bring about the physical destruction of the Palestinian group, as required to fit into category (c) of the definition of genocide.

The Humanitarian Situation

The ongoing intense armed conflict has created a dire humanitarian situation in the Gaza Strip. Unfortunately, this is one of the most common outcomes of a war conducted in a densely populated urban area.

IHL places certain obligations on parties to a conflict to enable the introduction of humanitarian relief to enemy territory. The analysis of the extent of this obligation goes beyond the scope of this comment, but is also unnecessary, since Israel has declared that it is committed to helping international organizations, and States involved in aid efforts, to alleviate the humanitarian crisis beyond what the law requires. Israeli officials have explained that Israel maintains a dedicated military unit, called COGAT, responsible for routine co-ordination with international organizations in Gaza with respect to various humanitarian aspects.

Israel has repeatedly declared publicly that there is no limit on the amount of food, water, shelter, or medical supplies that can be brought into Gaza. It has also stated that it continues to supply its own water to Gaza by two pipelines and has repaired water infrastructure that was damaged by the fighting, including by Hamas fire. Israel has also declared that it is constantly working to reinforce and strengthen medical services in Gaza, including by establishing field hospitals and floating hospitals, coordinating airdrops of aid, and enabling the entry of new ambulances into Gaza.66

Hamas, on the other hand, has not only failed to fulfill its obligations under international law towards the civilian population under its control in Gaza, but has been stealing and diverting humanitarian aid, including fuel and medical equipment, intended for civilian needs.67 Therefore, Hamas is actively contributing to the humanitarian crisis in the Gaza Strip.

IHL permits placing conditions on the introduction of humanitarian consignments to enemy territory to make sure that they are not diverted from reaching the civilians they are intended for and ending up in the hands of the enemy forces. It is evident that Hamas commandeers consignments into Gaza and controls their distribution, ensuring adequate supply to its terrorists and their continuous military effort. This is based also on reports arriving from Gazan residents themselves.68 Despite this reality, and the fact that this enables Hamas to continue its war against Israel, Israel has continued to enable the introduction of such supplies.

The introduction of fuel is a telling example. Hamas has time and again hoarded fuel, including during the current conflict, which it uses for military purposes, to sustain ventilation in its expansive underground tunnel network, and for its continued attacks against Israel. Nevertheless, and despite the military cost to IDF operations, Israel has enabled fuel to enter Gaza, in coordination with the United Nations, to service essential infrastructure, such as sewage treatment, desalination plants, water pumps, and hospitals.69

This is not to say that that the humanitarian situation in Gaza isn’t dire. However, to portray the situation as proof of a deliberate effort to bring about the destruction of the Palestinian people in Gaza, amounting to genocide, is detached from reality.

In this regard it is worth noting the judgements regarding the siege of Sarajevo. The ICTY, followed by the ICJ, determined that “food and fuel convoys had been obstructed or attacked by Bosnian Serb and Bosnian Croat forces and sometimes also by governmental forces” and that “blockade of humanitarian aid ha[d] been used as an important tool in the siege.” Regarding other towns under siege, it was noted:

[T]hat the enclave was being shelled and had been denied convoys of humanitarian aid for two months […] although food was being air-dropped, it was insufficient […] the town had been subject to a military offensive by Bosnian Serb forces, during which civilian objects including the hospital had been targeted and the water supply had been cut […] humanitarian convoys were harassed, including by the detention of UNPROFOR personnel and the theft of equipment.

Despite these harsh circumstances, the Court did not find sufficient evidence that the alleged acts were committed with the specific intent to destroy the protected group in whole or in part.70

Taking into account all that has been done by Israel to mitigate the dire humanitarian situation, it seems unfounded to claim that Israel is actively causing this crisis with a deliberate intention to bring about the physical destruction of the Palestinian people in Gaza. Therefore, there is no indication that the humanitarian crisis entails that Israel’s actions fall into category (c).

(d) Imposing measures intended to prevent births within the group

This category, inspired by the Nazis’ practice of forced sterilization before and during the Second World War,71 includes measures such as “sexual mutilation, enforced sterilization, forced birth control, forced separation of males and females, and prohibition of marriages.”72

There are no claims that Israel is taking any active measures to prevent births of Palestinian women. The claim, as represented by South Africa in its submission to the ICJ, is that blocking the delivery of life-saving aids and medical kits for delivering babies, shows Israel’s intention to prevent births of Palestinian women.73 Beyond the lack of any factual basis for this claim, it stretches the meaning of this category far beyond its clear meaning, that has nothing to do with having to give birth in a complex environment stemming from an ongoing armed conflict.

Interim Conclusion

To sum up this part, Israel is facing a complex operational reality created by Hamas’ strategic use of civilians and civilian objects to shield its military activities. This leads to loss of lives, destruction of property, and uprooting of people from war zones. It also creates a dire humanitarian situation. Since there are persuasive explanations to these outcomes within the framework of IHL, there is no basis to conclude that they are indicative of an intent to destroy the Palestinian people as a group. That would clearly not a reasonable conclusion and is most definitely not the only reasonable one.

Furthermore, Israel’s actions of making an effort to spare the civilian population and minimize harm to them, and the facilitation of humanitarian assistance, demonstrate the precise opposite of any possible genocidal intent towards the Palestinians to destroy all or part of the group as such.

This point was very eloquently put by Dr. Galit Raguan, speaking on behalf of Israel at the ICJ:

When a population is ruled by a terrorist organization that cares more about wiping out its neighbour than about protecting its own civilians, there are acute challenges in protecting the civilian population. Those challenges are exacerbated by the dynamic and evolving nature of intense hostilities in an urban area, where the enemy exploits hospitals, shelters, and critical infrastructure. Would Israel work continuously with international organizations and States, even reaching out to them on its own initiative, to find solutions to these challenges if it were seeking to destroy the population?

Israel’s efforts to mitigate the ravages of this war on civilians are the very opposite of intent to destroy them. Under these circumstances, far from being the only inference that could reasonably be drawn from Israel’s pattern of conduct, intent to commit genocide is not even a plausible inference.74

Intent Based on Statements

In its case before the ICJ, South Africa attempts to base its allegation of genocidal intent also on certain comments made by some Israeli politicians and public figures. Three particular statements were mentioned by the ICJ in its interim decision.75

One reference was to a statement made by President Isaac Herzog, shortly after the October 7th attack, that the rhetoric that civilians in Gaza were unaware or uninvolved in Hamas’s terrorist activities is not true. President Herzog subsequently made his views clear in several later remarks and statements regarding his utter pain and sorrow for any innocent casualty on the Palestinian side. In the same speech, the President explicitly acknowledged that there are many innocent Palestinians who disagree with Hamas’s actions and extremist agenda (this second part of the quote was omitted by South Africa in its presentation). President Herzog also responded to the ICJ Order, expressing his disappointment that his words had been “twisted […], using very, very partial and fragmented quotes, with the intention of supporting an unfounded legal contention.”76 It is difficult to see how the President’s words can be viewed as calling for genocide. It is also worth noting that the President has a ceremonial role in Israel and is not part of the executive branch responsible for making policy decisions.

The ICJ also referred to a statement made by then Minister of Energy and Infrastructure Israel Katz: “they will not receive a drop of water or a single battery until they leave the world.” While some have suggested this referred to the civilian population at large, the statement can easily be understood as referring to putting direct pressure on Hamas. Again, this is not a statement calling for genocide. Furthermore, the Minister of Energy and Infrastructure has no authority over the Israeli military and is not even a member of the War Cabinet. And, finally, Israel did not in fact implement a policy of withholding water from Gaza.

The ICJ seems to have attached special importance to statements made by the Minister of Defense, that Israel would impose a complete siege on Gaza, that he has released all restraints as “we are fighting human animals” and that “Gaza won’t return to what it was before.”77 While it is understandable given the Minister of Defense’s position and influence over the conduct of the operation, the statements were made in the immediate aftermath of the October 7th attack, while the scope and nature of the horrific attack were being revealed. The reference to “human animals” can easily be understood as referring to those who committed the unspeakable cruel acts on October 7th, such as beheadings, mutilations, and burning children alive. The removal of restrictions seems to allude to more freedom of action towards them.

Notably, the orders issued to IDF forces clearly contained restrictions on the use of force despite this statement of the minister. Furthermore, Israel did not impose a siege on Gaza.78 In other words, these statements, brought as evidence of a genocidal intent, not only did not include genocidal language towards all the Palestinian people as such, but also did not reflect an actual policy.

South Africa also attempted to induce genocidal intent from statements by the Israeli Prime Minister saying: “Remember what Amalek did to you.”79 Amalek is a biblical reference to a nemesis of the Israelites. However, it’s mention by the Prime Minister was linked to his referring to Hamas and he also mentioned at the same speech the need to act morally and avoid harming those who are uninvolved.80

It is crucial to note, as highlighted by the ICTY and the appeals chamber of the IRMCT, that even highly inflammatory public speeches advocating for “disappearance,” “annihilation,” “vanishing,” “elimination,” and “extinction” must be evaluated within the “full context in which they were delivered and not in isolation.”81

A careful review of the official and binding policy decisions made by the relevant authorities in Israel since the outbreak of the war clearly reveal that such decisions lack any genocidal intent. The contrary is true: they are indicative of the commitment of Israeli relevant authorities to mitigate civilian harm and alleviate civilian suffering in Gaza. The Prime Minister has clearly and publicly stated that: “Israel is fighting Hamas terrorists, not the civilian population.”82 The relevant factual basis allowing for an inference of intent to commit genocide must stem from the organs which are capable of having an effect on the military operations. These organs have repeatedly explained that the purpose of the military operation is to target Hamas, not the Palestinians in Gaza.83

This point is crucial, as it underscores that there is no plan or policy aimed at destroying the group. Instead, there exists a contrary policy focused on minimizing harm to Palestinian civilians and preserving their lives.

The lack of genocidal intent on the part of Israel is also evident from the fact that Israel has made clear that it would immediately cease hostilities if Hamas were to abandon its goal of destruction, release the hostages, and lay down its arms.

It is unfortunate that certain Israeli officials and public figures have used inappropriate and degrading language, as noted by the group of Special Rapporteurs and the CERD Committee. Cases that might amount to incitement will have to be investigated by the competent Israeli authorities. If statements amount to incitement to commit genocide, they clearly lie outside the realm of protected speech and must be investigated.84 In this regard one must differentiate between hate speech in general and direct and public incitement to commit genocide.85

In its application to the ICJ, South Africa claimed that the genocidal intent to destroy Palestinians is plainly understood by soldiers on the ground. Beyond the fact, that as explained, the military orders are clear in prohibiting any breach of IHL, let alone genocide, this accusation is also completely detached from the social reality in Israel. Up to a day before the October 7th attack, Israel was embroiled in a heated public debate with widespread protests against attempts of the current government to limit judicial scrutiny. The spearhead of those protesting any attempt to curtail the democratic nature of the State were the reservists, and mainly the IDF reserve pilots, who explained that they would not report to their reserve duty if there was concern that they would be given orders that do not conform with legal and moral standards. These pilots have been in continuous active duty in the Gaza Strip since October 7th. The idea that they would fulfill orders to carry out a genocide of the Palestinian people is totally inconceivable.

To conclude this part, the attempt to deduce an intent to commit genocide from sporadic statements made at the most devastating time of Israel’s history is baseless. This is all the more so when such statements contradict the actual official orders given to the soldiers operating in the Gaza Strip, and when Israel has made it clear that it would end its military campaign upon the surrender of Hamas.

The Genocide Committed by Hamas

If there are any accusations of genocide to be made in the current conflict, they should be directed toward Hamas. Hamas has been pursuing a relentless campaign of terrorism against Israeli civilians for more than three decades, openly declaring its ultimate goal of the destruction of the State of Israel. On October 7th, Hamas acted upon those intentions, conducting the largest massacre of Jews in a single day since the Holocaust, in a rampage of murder, torture, rape, mutilation, and other atrocities, all of which are explicitly included in the ICC Elements of Crimes.86 Documents left behind by Hamas terrorists in southern Israel reveal that they were ordered to kill as many civilians as possible and take many others as captives.87 1200 people were murdered and thousands were physically wounded. Thousands more are suffering severe psychological harm from witnessing the brutality of the attacks. 253 people were taken hostage, from the age of 9 months to over 80 years. To date, over 130 hostages kidnapped from Israel are still being held in Gaza, their whereabouts and fate unknown.

In stark contrast to the lack of any proof of genocidal intent from Israel towards the Palestinian people, Hamas has publicly declared its objective to annihilate the State of Israel in its 1988 charter.88 This aim is consistently reiterated by its leaders, for example stating that their goal is the “cleansing of Palestine of the filth of the Jews.”89 In another statement made following the attack, senior Hamas member Ghazi Hamad gleefully stated that the group would repeat the October 7th massacre “again and again” until Israel was “annihilated,” openly admitting the group’s genocidal intentions.90

The openly declared agenda of Hamas regarding Israel’s annihilation, the explicit statements by its leaders, and the actions executed on October 7th together meet the definition of genocide. Thus, if anyone should be investigated over allegations of genocide at the ICC, it is Hamas.

Ramifications of the Misuse of Genocide Accusations

As explained, genocide is a unique crime ordained to refer to the most extreme circumstances of an attempt to wipe out an entire people.

Armed conflict, even when fully justified and conducted lawfully, is brutal and costs lives. It is regulated by the rules and principles of IHL. The prohibition on genocide seeks to prevent and punish the physical destruction of a group as such. It is not meant to ban armed conflict altogether and it is not meant to cover breaches of the laws of war.

To put it another way, if claims of genocide were to become the common currency of armed conflict, whenever and wherever that occurred, the essence of this crime would be diluted and lost. If everything is genocide, then nothing is genocide.91

The case brought by South Africa against Israel is a blatant attempt to misuse the crime of genocide. The order issued by the ICJ reflects the very low threshold that the Court has adopted in providing provisional measures. However, one may hope that the OTP of the ICC will apply more reasonable and appropriate standards in making the determination of what potential crimes to investigate.

Furthermore, we must be cautious of attempts to use the crime of genocide to curtail the possibility of states to defend themselves by manipulations of the law. This is especially the case in the context of armed conflicts against terrorist groups and other parties that do not respect the law. Such parties adopt strategies of complete disregard of the rules of law in their conduct, while utilizing the adherence of the other side to the law as a means to prevent it from attaining its legitimate military aims.

Hamas is a perfect example. It totally disregards the rules, directs attacks against civilians, holds hostages, fires indiscriminate rockets towards civilians, uses civilians as human shields, and abuses hospitals, mosques, schools, and other protected civilian objects as bases for its military operations. This does not prevent it from raising the law as a barrier to Israel’s military operation against it. This is a win-win strategy. Either Israel refrains from attacking Hamas military capabilities to spare the lives of civilians that Hamas is using as shields or, if it does attack and civilians get killed and injured, Israel is accused of carrying out war crimes, or even worse, of conducting a genocide. Hamas is victorious either way—it either wins on the physical battlefield, or it wins in the international battlefield aimed to delegitimize Israel and deny it the right to defend itself. This should not be accepted.

We can see that this is not theoretical—the protesters around the world are chanting “stop Israel’s genocide in Gaza.” This is clearly an orchestrated campaign of raising a baseless accusation and then using it to put pressure on allies of Israel not to support it in its battle against the enemies that are attacking it. Without such support, these enemies could succeed in achieving their goal of the destruction of Israel.

Ultimately, entertaining an accusation of genocide against Israel in its war against Hamas will not strengthen the commitment to prevent and punish genocide, but weaken it. It will turn an instrument adopted by the international community to prevent horrors of the kind that shocked the conscience of humanity during the Holocaust into a weapon in the hands of terrorist groups who have no regard for humanity or for the law. This will have ramifications for all States seeking to defend themselves against those who demonstrate total disdain for life and for the law. It will reward, indeed encourage, the terrorists who hide behind civilians, at the expense of the States seeking to defend against them. Doing so would also signal to terrorist organizations that they can commit war crimes, crimes against humanity, and even genocide, and then exploit the international legal system to obtain protection.

Conclusion

In his separate opinion in the ICJ case, Judge Barak recounts his experience as a five-year-old boy hiding from the Nazis and writes:

Genocide is more than just a word for me; it represents calculated destruction and human behaviour at its very worst. It is the gravest possible accusation and is deeply intertwined with my personal life experience.92

Hamas and its allies precipitated egregious crimes on October 7th and continue to pose a tremendous threat to Israel. Since that day, Israel has been involved in the most difficult war it has faced since the 1973 war, and, some maintain, since its war of independence. The armed conflict in the Gaza Strip is still ongoing, with Hamas still entrenched in its underground fortress attacking IDF soldiers operating on the ground above, and still firing indiscriminate rockets towards Israeli towns and villages.

The deeds of Hamas, accompanied by its clear statements of intent to bring about the destruction of Israel while calling for the murder of Jews, fulfill the definition of genocide.

The military campaign of Hamas is accompanied with a public campaign of instigating widespread protests around the world calling for Israel’s demise. These are coupled with a wave of rampant antisemitism, including violence and threats of violence against Jews. This clearly exposes the link between the denial of Israel’s right to exist and the denial of the Jewish people’s right to exist. This is the rhetoric of genocide.

Even though the attack by Hamas was a flagrant breach of any norm or moral code, and despite its continuous total disregard of international law, clearly Israel is not released of its obligations to uphold the law as it defends its citizens and territory. And even if Hamas’s actions amount to genocide against the Israeli people, this of course does not justify acts of genocide (or other violations of international law) by Israel against the Palestinian people. To judge whether there is any merit to the allegation that genocide is being or could potentially be committed by Israel, one must understand the operational reality Israel is facing in the Gaza Strip.

Israel has clearly stated that it is in a war of defense against Hamas, not against the Palestinian people. Its actions and official statements clearly indicate that there is no basis to accuse it of attempting to commit a genocide of the Palestinian people in Gaza. Furthermore, there is an easy way to end the hardship in Gaza. Hamas can abandon its goal of destruction of the State of Israel, release the hostages, and lay down its arms. In such a case, the hostilities and suffering would end.

The claims of genocide made against Israel are intended to limit its ability to defend itself, and, consequently, Hamas will be free to maintain its destructive hold over the Gaza Strip, perpetuating the conflict until it reaches its ultimate goal of the destruction of the State of Israel. This also means that no peaceful resolution of the conflict will ever be achievable.

As Dr. Becker, speaking before the ICJ, put it:

We live at a time when words are cheap. In an age of social media and identity politics, the temptation to reach for the most outrageous term, to vilify and demonize, has become for many irresistible.93

But if law is to retain its validity and relevance, words should still matter, and truth should still matter, otherwise all is politics.

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

1. 1.

   See Swords of Iron: An Overview, Inst. for Nat’l Sec. Stud., available online (last visited Feb. 10, 2024).

   (For data on the Hamas attack and the following conflict). ↩

2. 2.

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

3. 3.

   Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ, Request for the Indication of Provisional Measures: Order, ¶ 62 (Jan. 26, 2024) [hereinafter ICJ Decision], available online. ↩

4. 4.

   See this emphasis in the declarations of Judges Bhandari and Nolte:

   Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ, Request for the Indication of Provisional Measures: Concurrence Declaration of Judge Dalveer Bhandari, ¶¶ 6–9 (Jan. 26, 2024), available online; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ, Request for the Indication of Provisional Measures: Concurrence Declaration of Judge Georg Nolte, ¶ 5 (Jan. 26, 2024), available online;

   Two Judges (Sebutinde and Barak) were even more definite that the case did not fall into the ambit of the Genocide Convention:

   Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ, Request for the Indication of Provisional Measures: Dissenting Opinion of Judge Julia Sebutinde (Jan. 26, 2024) [hereinafter Sebutinde Dissent], available online; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ, Request for the Indication of Provisional Measures: Separate opinion of Judge ad hoc Aharon Barak, Concurring in Part and Dissenting in Part (Jan. 26, 2024) [hereinafter Barak Separate Opinion], available online. ↩

5. 5.

   The Declaration of Principles on Interim Self-Government Arrangements was signed on September 13, 1993, setting a framework for a phased settlement of the Israeli–Palestinian dispute. Within this framework the parties signed on May 4, 1994, the Agreement on the Gaza Strip and Jericho Area. In accordance with this agreement, the IDF withdrew from most of the Gaza Strip, except for the Israeli settlements and main access routes thereto and the military-installations area along the southern border of the Strip with Egypt. On September 28, 1995, the parties signed the Israeli–Palestinian Interim Agreement on the West Bank and Gaza Strip which incorporated and superseded the Gaza-Jericho Agreement. ↩

6. 6.

   Doctrine of Hamas, Wilson Center (Oct. 20, 2023), available online. ↩

7. 7.

   See Roy Schöndorf & Eran Shamir-Borer, The (In)applicability of the Law of Occupation to the Gaza Strip, 43 Tel Aviv U. L. Rev. 403 (2020), abstract available online.

   (By ceasing to exert effective control over the Gaza Strip, Israel maintains that this area ceased to be occupied territory);

   Pnina Sharvit Baruch, Is the Gaza Strip Occupied by Israel? in Israel’s Rights as a Nation-State in International Diplomacy 131 (Alan Baker ed., 2011), available online. ↩

8. 8.

   The Disengagement Plan—General Outline, MFA (Apr. 18, 2004), available online. ↩

9. 9.

   Almost 20,000 Gazans passed into Israel daily for work through the main crossing point, the Erez Crossing. It was attacked on October 7th by Hamas, which murdered and kidnapped some of the staff coordinating the assistance to Gaza and caused significant damage. ↩

10. 10.

    Dan De Luce & Lisa Cavazuti, Gaza Is Plagued by Poverty, but Hamas Has No Shortage of Cash. Where Does It Come From?, NBC News, Oct. 25, 2023, available online. ↩

11. 11.

    ICJ Decision, supra note 3, ¶ 13. ↩

12. 12.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ CR 2024/2, Verbatim Record, Israel’s Oral Argument, Statement of Tal Becker at 14 ¶ 12 (Jan. 12, 2024) [hereinafter Israel’s Oral Argument], available online;

    Examples of the horrors were also documented in a number of detailed independent reports published by foreign media:

    Patrick Kingsley, Aaron Boxerman, Natan Odenheimer, Ronen Bergman & Marco Hernandez, The Day Hamas Came, N.Y. Times, Dec. 22, 2023, paywall; Jeffrey Gettleman, Anat Schwartz & Adam Sella, “Screams Without Words”: How Hamas Weaponized Sexual Violence on Oct. 7, N.Y. Times, Dec. 28, 2023, updated Jan. 25, 2024, paywall; Sune Engel Rasmussen & Shoshanna Solomon, Israeli Military Shows Footage From Oct. 7 Attacks, Some Taken From Militants’ Body Cams, Wall St. J., Oct. 23, 2023, paywall. ↩

13. 13.

    Hamas’s Attack Was the Bloodiest in Israel’s History, The Economist (Oct. 12, 2023), paywall. ↩

14. 14.

    Daniel Byman, Riley McCabe, Alexander Palmer, Catrina Doxsee, Mackenzie Holtz & Delaney Duff, Hamas’s October 7 Attack: Visualizing the Data, CSIS (Dec. 19, 2023), available online. ↩

15. 15.

    Peter Nicholas, Biden Faces Competing Pressures in Responding to the Attacks on Israel, NBC News, Oct. 9, 2023, available online. ↩

16. 16.

    Dan Abrams, Hamas Senior Official: We Will Strike Israel “Again and Again”: An Interview With a Hamas Senior on Dan Abrams Live, NewsNation on YouTube (Nov. 1, 2023), video. ↩

17. 17.

    See, e.g., Joint Statement on Israel, The White House (Oct. 9, 2023), available online. ↩

18. 18.

    Swords of Iron: An Overview, supra note 1. ↩

19. 19.

    Jason Burke, Hamas Regroups in Northern Gaza to Prepare New Offensive, The Guardian, Jan. 30, 2024, available online. ↩

20. 20.

    IDF’s Dead and Wounded Soldiers in the War, IDF, available online (Heb.) (last visited Feb. 10, 2024). ↩

21. 21.

    Nancy A. Youssef, Jared Malsin & Carrie Keller-Lynn, Hamas Toll Thus Far Falls Short of Israel’s War Aims, U.S. Says, Wall St. J., Jan. 21, 2024, paywall. ↩

22. 22.

    William A. Schabas, Genocide in International Law: The Crime of Crimes (2nd ed. Apr. 13, 2009), paywall. ↩

23. 23.

    See Claus Kreß, The Crime of Genocide Under International Law, 6 Int’l Crim. L. Rev. 461, 466 (2006), available online. ↩

24. 24.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 ICJ 43, Judgment, ¶ 186 (Feb. 26, 2007) [hereinafter Bosnia v. Serbia], available online. ↩

25. 25.

    Id. ¶ 277. ↩

26. 26.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 2015 ICJ 3, Judgment, ¶ 132 (Feb. 3, 2015) [hereinafter Croatia v. Serbia], available online; Kreß, supra note 23, at 497

    (emphasizing the dimension of “a collective genocidal goal” to destroy the group as the central feature of this unique crime). ↩

27. 27.

    Bosnia v. Serbia, supra note 24, ¶ 189. ↩

28. 28.

    Id. ¶ 277. ↩

29. 29.

    The Prosecutor v. Aloys Simba, ICTR-01-76-T, Judgement and Sentence, ¶ 413 (Dec. 13, 2005), available online, archived. ↩

30. 30.

    Bosnia v. Serbia, supra note 24, ¶ 373; Croatia v. Serbia, supra note 26, ¶ 148. ↩

31. 31.

    Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovčanin, Radivoje Miletić, Milan Gvero, and Vinko Pandurević, IT-05-88-T, Judgement, ¶ 829 (ICTY TC II, Jun. 10, 2010), available online. ↩

32. 32.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (ICC PTC I, Mar. 4, 2009), available online; The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Second Decision on the Prosecution’s Application for a Warrant of Arrest, ¶ 124 (ICC PTC I, Jul. 12, 2010), available online. ↩

33. 33.

    Case Concerning Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, 1999 ICJ 124, Order, 737–38 ¶¶ 16–17, 138 ¶ 40 (Jun. 2, 1999), available online. ↩

34. 34.

    Barak Separate Opinion, supra note 4, ¶ 27 quoting U.N. Economic and Social Council, Draft Convention on the Crime of Genocide, Section II: Comments Article by Article, E/447, 23 (Jun. 17, 1947), download. ↩

35. 35.

    Prosecutor v. Milomir Stakić, ICTY-IT-97-24-T, Judgement, ¶ 515 (ICTY TC II, Jul. 31, 2003) [hereinafter Stakić Trial Judgement], available online; Croatia v. Serbia, supra note 26, ¶ 474. ↩

36. 36.

    Prosecutor v. Radislav Krstić, ICTY-IT-98-33-T, Judgement, ¶ 513 (ICTY TC, Aug. 2, 2001), available online. ↩

37. 37.

    Prosecutor v. Zdravko Tolimir, ICTY-IT-05-88/2-T, Judgement, ¶¶ 737, 738 (ICTY TC II, Dec. 12, 2012) [hereinafter Tolimir Trial Judgement], available online, archived. ↩

38. 38.

    Bosnia v. Serbia, supra note 24, ¶ 186; Stakić Trial Judgement, supra note 35, ¶ 515; Croatia v. Serbia, supra note 26, ¶ 474. ↩

39. 39.

    Croatia v. Serbia, supra note 26, ¶ 474. ↩

40. 40.

    Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), ICJ, Declaration of Intervention of Denmark (Sep. 16, 2022), available online. ↩

41. 41.

    ICJ Decision, supra note 3, ¶ 46

    (“figures relating to the Gaza Strip cannot be independently verified”).

    See also Barak Separate Opinion, supra note 4, ¶ 36. ↩

42. 42.

    Chris Mueller, Video of Gaza “Casualties” Predates Conflict Between Israel and Hamas: Fact Check, USA Today, Nov. 15, 2023, available online. ↩

43. 43.

    Up to 9,000 Hamas Fighters Killed or Captured, IDF Says, NBC News, Jan. 5, 2024, available online. ↩

44. 44.

    IDF: Gaza Resident Says Hamas Preventing Evacuations; Thousands Return North, Times of Israel, Oct. 26, 2023, available online. ↩

45. 45.

    Israel–Hamas Conflict 2023: Humanitarian Efforts, MFA (Dec. 16, 2023) [hereinafter Humanitarian Efforts], available online. ↩

46. 46.

    David Leonhardt, Revisiting the Gaza Hospital Explosion: We Look at the Evidence for Who Is Responsible, N.Y. Times, Nov. 3, 2023, paywall. ↩

47. 47.

    Hamas-Israel Conflict 2023: Frequently Asked Questions, MFA (Dec. 6, 2023), available online. ↩

48. 48.

    See Adolfo Arranz, Jonathan Saul, Stephen Farrell, Simon Scarr & Clare Trainor, Inside the Tunnels of Gaza, Reuters, Dec. 31, 2023, available online. ↩

49. 49.

    Swords of Iron: An Overview, supra note 1. ↩

50. 50.

    Pamela Falk, Israel Says These Photos Show How Hamas Places Weapons in and Near U.N. Facilities in Gaza, Including Schools, CBS News, Nov. 8, 2023, available online; Hamas Caught Firing Rockets From Next to UN Facilities, Schools—IDF, The Jerusalem Post, Oct. 22, 2023, available online. ↩

51. 51.

    Alex Winston, IDF Proof: Hamas, PIJ Use Young Children for Gaza Terror Activities, Incitement, The Jerusalem Post, Jan. 3, 2024, available online; What to Know About Hamas’ Military Capabilities, Axios, Oct. 21, 2023, available online. ↩

52. 52.

    Natalie Ecanow, FDD, Hamas Officials Admit Its Strategy Is to Use Palestinian Civilians as Human Shields (Nov. 1, 2023), available online; NATO StratCom, Hamas’ Use of Human Shields in Gaza (2014), available online. ↩

53. 53.

    Israel’s Oral Argument, supra note 12, Statement of Galit Raguan at 45 ¶ 45; Swords of Iron: An Overview, supra note 1. ↩

54. 54.

    Israel Defense Forces (@IDF), X (Dec. 18, 2023, 4:14 PM), available online; Gaza War: “We Abort Our Operations When We See an Unexpected Civilian Presence,” Says IDF, The Economic Times on YouTube (Dec. 19, 2023), video. ↩

55. 55.

    Prosecutor v. Radovan Karadžić, MICT-13-55-A, Judgement, ¶ 727 (MICT Appeals Chamber, Mar. 20, 2019) [hereinafter Karadžić Appeal], available online.

    see also Prosecutor v. Milomir Stakić, ICTY-IT-97-24-A, Judgement, ¶ 42 (ICTY AC, Mar. 22, 2006), available online. ↩

56. 56.

    Tolimir Trial Judgement, supra note 37, ¶ 740. ↩

57. 57.

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

58. 58.

    Emanuel Fabian, IDF Finds Tunnels, Booby-Trapped Homes Hidden Among High-Rise Buildings in Central Gaza Neighborhood, Times of Israel, Jan. 5, 2024, available online; Maayan Jaffe-Hoffman, IDF: One in Five Gaza Rockets Misfires, Kills Palestinians, The Jerusalem Post, Oct. 21, 2023, available online; Foundation for Defense of Democracies, Hamas Unwittingly Admits Gaza Rockets Are Prone to Misfire (Oct. 19, 2023), available online; 550 Failed Launches Fell Inside the Gaza Strip, IDF (Oct. 21, 2023), available online; Humanitarian Efforts, supra note 45. ↩

59. 59.

    Interactive Compilation of Hamas Abuse of Hospitals, IDF (Dec. 20, 2023), available online; IDF Enables Evacuees From Shifa Hospital To Leave Safely, Contrary to False Media Reports, The Media Line, Nov. 18, 2023, available online; Israel’s Oral Argument, supra note 12, Statement of Galit Raguan at 43 ¶ 30. ↩

60. 60.

    Hostilities in the Gaza Strip and Israel—Reported Impact, OCHA (Updated Feb. 4, 2024), available online (last visited Feb. 10, 2024). ↩

61. 61.

    Israel’s Oral Argument, supra note 12, Statement of Galit Raguan at 45 ¶ 43; Jacob Magid, Israel Formalizes Daily Humanitarian Pauses in Gaza, in First Since War’s Outbreak, Times of Israel, Nov. 9, 2023, available online. ↩

62. 62.

    Netanyahu: Israel Will Not Permanently Occupy Gaza, Globes, Jan. 11, 2024, available online.

    (The Prime Minister of Israel declared that Israel has no intention to permanently occupy Gaza). ↩

63. 63.

    Bosnia v. Serbia, supra note 24, ¶ 190. ↩

64. 64.

    Stakić Trial Judgement, supra note 35, ¶ 519. ↩

65. 65.

    Bosnia v. Serbia, supra note 24, ¶ 190. ↩

66. 66.

    Israel’s Oral Argument, supra note 12, Statement of Galit Raguan at 46–47, 50–52. ↩

67. 67.

    Einav Halabi, IDF Releases Video of Hamas Stealing Aid From Gazans, Ynet News, Dec. 9, 2023, available online. ↩

68. 68.

    Elderly Gazan Woman Accuses Hamas of Stealing Aid in Rare Criticism, The Telegraph on YouTube, Dec. 9, 2023, video. ↩

69. 69.

    Anna Schecter, Hamas Is Hoarding Vast Amounts of Fuel as Gaza Hospitals Run Low, U.S. Officials Say, NBC News, Nov. 1, 2023, available online; Israel’s Humanitarian Efforts, COGAT, available online (last visited Feb. 10, 2024). ↩

70. 70.

    Bosnia v. Serbia, supra note 24, ¶¶ 320–328, 345–354

    (coming to a similar conclusion regarding the inhumane living conditions in detention camps, which included depriving detainees of adequate supplies and subjecting them to mental and physical violence. Again, the Court concluded that it was not found that those acts were accompanied by specific intent (dolus specialis) to destroy the protected group, in whole or in part). ↩

71. 71.

    Robert Cryer, Darryl Robinson & Sergey Vasiliev, An Introduction to International Criminal Law and Procedure 217 (Oct. 2, 2019), paywall. ↩

72. 72.

    Tolimir Trial Judgement, supra note 37, ¶ 740. ↩

73. 73.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ CR 2024/1, Verbatim Record, South Africa’s Oral Argument, Statement of Adila Hassim ¶¶ 34, 35 (Jan. 11, 2024) [hereinafter South Africa’s Oral Argument], available online. ↩

74. 74.

    Israel’s Oral Argument, supra note 12, Statement of Galit Raguan at 48–49 ¶¶ 76, 77; Sebutinde Dissent, supra note 4, ¶ 21. ↩

75. 75.

    ICJ Decision, supra note 3, ¶ 52. ↩

76. 76.

    Press Release, President Herzog Addresses ICJ Ruling, MFA (Jan. 28, 2024), available online; Barak Separate Opinion, supra note 4, ¶ 36

    (“The declarations made by the President of Israel and the Minister of Defence of Israel are not a sufficient factual basis for inferring a plausible intent of genocide. Both authorities have issued several statements clarifying that Israel’s intent is the destruction of Hamas, not the Palestinians in Gaza.”). ↩

77. 77.

    South Africa’s Oral Argument, supra note 73, Statement of Tembeka Ngcukaitobi at 34 ¶ 14. ↩

78. 78.

    Geoffrey S. Corn & Sean Watts, Israel–Hamas 2023 Symposium-Siege Law and Military Necessity, Articles of War (Oct. 13, 2023), available online.

    (Furthermore, siege is not an unlawful mode of action and is allowed by IHL towards enemy forces). ↩

79. 79.

    South Africa’s Oral Argument, supra note 73, Statement of Tembeka Ngcukaitobi at 33 ¶ 12. ↩

80. 80.

    Israel’s Oral Argument, supra note 12, Statement of Malcolm Shaw at 35 ¶ 50. ↩

81. 81.

    Karadžić Appeal, supra note 55, ¶ 742. ↩

82. 82.

    Benjamin Netanyahu, Setting the Record Straight, The Jerusalem Post, Dec. 22, 2023, available online. ↩

83. 83.

    See, e.g., “Our war is against Hamas—not against the people of Gaza”—IDF Spokesperson, i24News on YouTube (Dec. 4, 2023), video. ↩

84. 84.

    Israel’s Oral Argument, supra note 12, Statement of Gilad Noam at 73 ¶ 16.

    (Noam asserts that the Attorney General of Israel has informed that investigations will be conducted against those suspected of inciting genocide);

    Yoav Etiel, Israeli Man Charged for Inciting Terror, Rape, Genocide of Palestinians, The Jerusalem Post, Dec. 19, 2023, available online

    (charging an Israeli man for inciting terror, rape, and genocide against Muslims amidst the ongoing war). ↩

85. 85.

    Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, ICTR-99-52-A, Judgement, ¶ 692 (ICTR AC, Nov. 28, 2007), available online. ↩

86. 86.

    Elements of Crimes, supra note 57, at Art. 6

    (explicitly including within the definition of genocide “acts of torture, rape, sexual violence, or inhuman or degrading treatment”). ↩

87. 87.

    In Coded Doc, Hamas Instructed Terrorists to Kill Civilians, Take Captives—Report, Times of Israel, Oct. 15, 2023, available online. ↩

88. 88.

    This aim is still evident in 2017. See The Islamic Resistance Movement “Hamas,” A Document of General Principles & Policies (May 2017), available online.

    (“The establishment of ‘Israel’ is entirely illegal and contravenes the inalienable rights of the Palestinian people and goes against their will and the will of the Ummah; it is also in violation of human rights that are guaranteed by international conventions, foremost among them is the right to self-determination. There shall be no recognition of the legitimacy of the Zionist entity. Whatever has befallen the land of Palestine in terms of occupation, settlement building, Judaization or changes to its features or falsification of facts is illegitimate.”).

    For an analysis, see Doctrine of Hamas, supra note 6. ↩

89. 89.

    Senior Hamas Official Fathi Hammad: We Will Cleanse Palestine of the Filth of the Jews, Heal the Nation of the Jewish Cancer; Netanyahu, Lieberman, We Are Coming to Chop Off Your Heads!, MEMRI TV, Jul. 12, 2018, available online. ↩

90. 90.

    Memri (@MEMRIReports), X (Nov. 1, 2023, 12:28 PM), available online. ↩

91. 91.

    Statement in Response to South Africa’s ICJ Application Accusing Israel of Genocide, IAJLJ (Jan. 8, 2024), available online; On the need not to expand the crime of genocide, see Kreß, supra note 23, at 500. ↩

92. 92.

    Barak Separate Opinion, supra note 4, ¶ 6. ↩

93. 93.

    Israel’s Oral Argument, supra note 12, Statement of Tal Becker at 13 ¶ 7. ↩

94. Suggested Citation for this Comment:

    Pnina Sharvit Baruch, Misusing the Crime of Genocide in the Israel–Hamas Conflict, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas#Baruch.

    Suggested Citation for this Issue Generally:

    What Should the ICC Do in Response to the Israel/Hamas Conflict?, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas.

Argument

Expansive “Military Advantage”

A major question is how Israel, and others judging Israel’s actions, should evaluate “military advantage” in the conflict as a general matter.6

Israel’s goal is not just to deter Hamas, as it was in the numerous conflicts the sides fought over the last sixteen years, but to topple Hamas in Gaza, such that it is no longer able to function as an organization which can fight on a national scale, nor control the territory of Gaza.

This goal influences Israel’s definition of its military advantage on a variety of targeting issues and is important in confronting critics of Israel who discount Hamas as a threat, noting Israel’s military superiority.

Despite Israel’s military superiority, on October 7, Hamas managed to conquer 22 Israeli villages, to kill 1200 Israelis, mostly civilians, to take around 240 hostages, and even to conquer the IDF’s forward headquarters.

Through three months of fighting, Hamas has managed to fire rockets on Israel’s home front virtually every day, including three thousand rockets in four hours on October 7, and hundreds per day in the early weeks of the war, with a recent barrage on central Israel (not just closer southern Israel areas) even at the moment when the new year 2024 opened on January 1.

What all of this proves is that, despite Israeli general superiority, Hamas was throughout the war, and continues to be, capable of posing an asymmetric threat to Israel, including Israel’s civilian population.

Hamas has also said that it is committed to repeat additional October 7-style massacres against Israel in the future if it is not prevented from doing so.

This all relates back to why Israel’s goal is to topple Hamas and how that impacts a military advantage analysis.

Given that Hamas does not care especially much about defending specific above land territory,7 the only way to defeat Hamas is to seek out its leaders and forces wherever they may be, usually in tunnels. Israeli forces generally can only gain access to these tunnels by penetrating civilian locations which Hamas uses to conceal its underground terror infrastructure.8

These civilian locations have also been used to conceal Israeli hostages, and finding those hostages is another goal of the IDF.9

When your opponent in an armed conflict is publicly committed to your genocide, which Hamas unapologetically is when it comes to Israel, analyzing the relationship between military advantage and civilian casualties becomes infinitely more complex.

Of course, proportionality as a matter of law is analyzed with respect to each specific attack, but each individual calculation of how much risk could be taken regarding collateral harm to civilians will be subtly impacted by how important each individual target, often in Gaza each individual tunnel shaft or rocket launching platform, are to the broader war effort.10

American generals who have advised Israel on its tactics during this Gaza war are fond of making reference to their experiences fighting asymmetric adversaries in Iraq and Afghanistan.11

While thankful for the advice, Israeli generals frequently point out that when their U.S. counterparts were deciding whether they could delay an attack, they did not need to worry about rockets being fired on New York or Washington DC, as a possible cost for delaying the attack, which Israelis have had to worry about.12

This is not to say that any attack can be justified regardless of the civilian collateral damage—that would obviously be a disastrous rule.

It is to say that critics of Israel for being “too aggressive” should not so easily dismiss the significance of striking a large volume of Hamas rocket crews, locations where rockets are stored, and tunnel shafts.

The Hospitals Dilemmas

Another issue, which could seem like a classic and simple one but has excruciating new twists, is whether the IDF’s military tactics in handling Gaza hospitals has been legal.

The starting point is that the IDF has produced voluminous evidence of Hamas’ systematic use of more than half-a-dozen Gaza hospitals for military operations.13

There is also specific evidence that Hamas used Shifa and Rantisi hospitals for concealing kidnapped hostages, including at least one baby.14

So how should a western army handle defeating a foe who systematically uses a hospital for coordinating a large area of its forces’ attacks as well as serving as a significant location for weapons storage, but does not shoot rockets nor is it caught launching other attacks directly from the medical center?

Although medical centers have special protections under the laws of war, their status can still change.15 The question then again becomes one of proportionality.

Regarding Shifa Hospital, the Israeli military only engaged and killed five Hamas fighters, all nearby, but outside the hospital buildings.

Despite concerns, not a single shot was fired inside the hospital and not a single patient was actively harmed during the Israeli army’s takeover.16

At the same time, there are allegations that dozens of patients died in the days leading up to the Israeli takeover, due to the military surrounding the hospital, and putting it effectively under siege.17

So what if the Israel’s forces only “take over” a facility, but do not actually “attack” it in the sense of firing on it? Top Israeli legal officials, who granted have taken a side, have expressed skepticism that such a case, minus an Israeli attack and with Hamas’ abuse of the facility for military means, could lead to a criminal inquiry.

In other words, Israel would argue that the very fact that its military chose not to attack Shifa Hospital in an active way negates criminality. If accepted, this would mean that indirectly caused deaths from the general negative impact on the hospital’s functionality of Israel having surrounded it in the days before taking over, but without attacking per se, would not be criminal.18

At the level of disrupting its functionality, Hamas, not Israel, could be blamed legally for using it as a military command center and weapons depot. This would leave Israel clearly justified in taking it over, especially if the military did not actively fire on the facility or anyone within.

The Tunnels Dilemmas

Yet another highly problematic legal dilemma involves the multiple Israeli attacks which allegedly mistakenly led to killing large numbers of civilians, in one case around eighty, due to unforeseen secondary effects of concealed Hamas tunnels or Hamas explosives under civilian locations.19

Put differently, how far does a Western army need to go in being accurate in its calculations of what collateral harm to civilians will occur if it strikes a target with a tunnel below it which could collapse the entire block of houses, which might also have tunnels below them?

Israel itself is probing multiple such large-scale incidents from the current war.20 If past is prologue, the probes will find that mistakes were made and lessons should be learned, but no one will be charged (though a number of individual Israeli soldiers have been imprisoned for unlawfully killing individual Palestinians).21

Should the ICC accept such conclusions?

In one incident, Israel has said that the purpose of the operation was to kill a senior Hamas official22 and it appears that the military had factored in a small number of civilian casualties from the one location he was inhabiting.

However, the civilian residence which Israel struck led to collapsing the tunnel below it, which in turn collapsed a range of nearby structures.

An Israeli official has said that the critical question is proportionality in terms of what the army could have reasonably been expected to know before the operation, not what the result turned out to be using information it did not know in real time.23

From a military advantage perspective, once again, since Israel’s goal is to take control of Gaza from Hamas, the value of eliminating Hamas tunnels is far higher than ever before. Eliminating tunnels is also important to Israel for ongoing force protection during maneuvering, given that likely a majority of Israeli soldier casualties to date have been from ambushes from Hamas tunnels.

The expected harm to civilians is notoriously hard to guess, but Israeli officials have admitted to learning lessons from a disastrous May 2021 Gaza conflict incident. In that incident, Israel killed large numbers of civilians by accident due to the unexpected collapse of a tunnel under a residence causing the whole block of residences to collapse.24

But even after learning lessons, the height, length, and width of the tunnel may be different than what intelligence estimates, an Israeli official explained. How solid or rickety a tunnel is and what materials it is made from may also be different than a military’s best estimates.

In addition, in some instances, Hamas hides explosives around a tunnel to try to trap and kill Israeli forces, and striking a tunnel can cause additional unexpected explosions and more residences nearby to collapse.25

Can the Israeli military be held accountable for this?

Emotional responses, especially when seeing a Palestinian death toll which will probably top 25,000 (currently Israel would argue that at least 9000 of 24,000 Palestinian dead were fighters,26 but that still leaves a large percentage of civilian deaths), would demand that Israel be held to a higher standard of what it should know about tunnels or potential tunnels around civilian residences.

Such a high standard is not present under existing law. Maybe someday the laws of war will or should be amended to raise some of these standards to a higher point than what they are at now.

But those who would want to raise such standards will need to answer the partially legal, partially humanitarian question of, will making it harder for Western armies to defend themselves from asymmetric adversaries save lives or ultimately lead to more death?

Practical Operative and Policy Issues

From these general and specific legal questions, this comment moves on to some practical legal questions regarding the utility of the ICC as regards the Israeli–Palestinian conflict and the current war.

I would submit that the ICC has close to a zero chance of deterring Hamas, or Hezbollah, or the Houthis from Yemen, or Iranian militias in Syria, from attacking Israel, soldiers, or civilians.

The underlying principles of Hamas’ method of warfare is to abuse the bedrock principles of the laws of war by firing rockets indiscriminately at Israeli civilians, and mounting these and other attacks and its defense almost exclusively from Palestinian civilian areas.27

If the laws of war bar using an individual “human shield” for force protection, Hamas has made much of Gaza into one giant systematic human shield.28

Critics of Israel argue that Hamas has little choice if it wants to try to compete militarily against Israel’s vaunted air force.

Whether this point is true or not, whether blame for the current war and past wars is more on the Israeli or Palestinian side for failing to arrive at a peace deal (although Israel offered serious peace deals to the Palestinian Authority both in 2000 and 2008) is inapposite.

The laws of war assume there is an ongoing conflict and their purpose is to regulate it regardless of who started the altercation.

The legality of Israel or Hamas’ actions and probes is based on the laws of jus in bello, the conduct of war, not jus ad bellum, the justness or fairness of the war as a strategic matter.

Hamas is bound by the current laws of war like any other party to a conflict. But it has made it eminently clear that such laws are meaningless to it, other than to the extent they can be used to restrain Israel.

There is a vast difference in this area between Hamas and Israel.

Israel is more deterred than Hamas by the ICC because it is a democracy and it strongly cares about how it is viewed by its Western allies.

There have even been cases where Israel showed specific restraint out of concern for the impact before the ICC, albeit these were often cases where Israeli security was not as desperately threatened.29

But deterrence has its limits.

As long as Israel has support for its interpretations of the laws of war from like-minded countries like the U.S., it is unlikely to refrain from taking actions, in gray areas of interpretation where it has disagreements with the ICC, it believes are necessary to prevent another October 7 massacre.

Moving to accountability, Hamas might be held accountable given that Israel has succeeded in arresting thousands of Hamas forces.

However, Israel is not a party to the Rome Statute and would not become one simply to extradite members of Hamas, when it can imprison them itself.

An interesting scenario might arise if Israel took a cue from the Ntaganda case from the Democratic Republic of the Congo. There, Bosco Ntaganda was flown by the U.S. from Rwanda to the Netherlands where he could be arrested and extradited to the Court, though the U.S. itself is not a party to the Rome Statute.30

Could the same be done with Hamas officials?

Israeli officials are unlikely to be “held accountable” in general since the ICC does not have the power generally to arrest Israelis.

There could still be a random case where an Israeli official risks traveling to a country with weaker diplomatic relations with Israel, which is willing to risk extraditing that Israeli.

There are also some interesting questions about whether the ICC could promote reconciliation between Israelis and Palestinians if it was willing to allow Israelis to avoid prosecutions in exchange for some reconciliation moves.

But such moves are highly speculative at a time when the ICC has not decided to prosecute Israelis, nor has it shown a readiness to mix its legal moves with diplomatic progress within the Israeli–Palestinian conflict.

The dilemmas raised in this comment do not necessarily have clear answers. But it is critical to assess them given the massive impact they will have both on the Israeli–Palestinian conflict and Western militaries across the globe for years to come.

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

1. 1.

   When judicial rulings at the ICC are made about legal issues prior to a full trial with witnesses, they are rendered by panels referred to as pre-trial tribunals. ↩

2. 2.

   Michael N. Schmitt, Israel–Hamas 2023 Symposium: The Legal Protection of Hospitals During Armed Conflict, Articles of War (Dec. 29, 2023), available online. ↩

3. 3.

   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], Art. 17, available online

   (referring to this question as one of whether cases are admissible before the ICC). ↩

4. 4.

   In fact, the complementarity test concerns, first and foremost, the specific allegations of an alleged war crime: such as whether the same conduct by the same person has been properly investigated. It would generally be insufficient to use complementarity as a defense simply because that the system as a whole meets international standards. However, given that the war is still ongoing and that none of Israel’s investigations have concluded yet, it is not yet possible to do a definitive analysis of a specific case. I do try to extrapolate from some paradigm case studies to reach a better understanding for how to view Israel’s legal system. ↩

5. 5.

   Dennis Ross, Why the ICC Prosecutor Is Wrong on Oslo, Wash. Inst. (Jun. 16, 2020), available online. ↩

6. 6.

   Jean-Marie Henckaerts & Louise Doswald-Beck Eds., ICRC, Customary International Humanitarian Law I, R.8 (2006), available online, citing 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.

   (defining “military advantage” in the context of what is a legal military objective, which is something, which by its total or partial destruction, capture or neutralization, makes an effective contribution to military action). ↩

7. 7.

   Daphné Richemond-Barak, Israel Faces a Vicious Underground Battle Against Hamas, Fin. Times, Oct. 15, 2023, paywall; John Spencer, Underground Nightmare: Hamas Tunnels and the Wicked Problem Facing the IDF, Modern War Inst. (Oct. 17, 2023), available online; Zoran Kusevac, Analysis: Has the Approach to Tunnel Warfare Changed For Israel and Hamas?, Al Jazeera, Dec. 11, 2023, available online. ↩

8. 8.

   Natsha Bertrand, Israel Begins Flooding Gaza Tunnels With Seawater “On a Limited Basis,” US Official Says, CNN, Dec. 12, 2023, available online; Spencer, supra note 7. ↩

9. 9.

   IDF Claims Video Shows Hostages in Al-Shifa Hospital, CNN, Nov. 19, 2023, video; Israel–Hamas War: Israel Says Video Shows Hamas Tunnel Under Besieged Hospital, N.Y. Times, Nov. 19, 2023, updated Dec. 21, 2023, paywall. ↩

10. 10.

    John J. Merriam & Michael N. Schmitt, Israeli Targeting: A Legal Appraisal, 68 NWC R. (2015), available online. ↩

11. 11.

    Barak Ravid, Scoop: Marine Corps 3-star General Advising Israeli Military on Gaza Ground Operation, Axios, Oct. 23, 2023, available online. ↩

12. 12.

    Mohammed Tawfeeq, Amir Tal, Peter Rudden, Garrett Hutchins & Elizabeth Joseph, Hamas Launches Rockets Against Israel Moments Into New Year, CNN, Dec. 31, 2023, available online; Author’s off-record interviews with top Israeli defense officials. ↩

13. 13.

    Nic Robertson, Rebecca Wright, John Torigoe & David Shortell, Israel Shows Alleged Hamas “Armory” Under Children’s Hospital in Gaza. Local Health Officials Dismiss the Claims, CNN, Nov. 14, 2023, available online; Schmitt, supra note 2. ↩

14. 14.

    Robertson et al., supra note 13; Schmitt, supra note 2; Peter Beaumont, What Is a Human Shield and How Has Hamas Been Accused of Using Them?, The Guardian, Oct. 31, 2023, available online. ↩

15. 15.

    Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, Art. 19 (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter Fourth Geneva Convention], available online; Additional Protocol I, supra note 6. ↩

16. 16.

    “Floor by Floor Searches”: Eyewitnesses Describe Israeli Raid on Gaza’s Al-Shifa Hospital, Haaretz & Reuters, Nov. 15, 2023, paywall. ↩

17. 17.

    Concern for Gaza Civilians Soars as Medical Services Collapse, CNN, Nov. 14, 2023, video. ↩

18. 18.

    Yonah Jeremy Bob, IDF Lawyer to “Post”: We Comply With Int’l Law Because of Duty to Democracy: Senior IDF Military Lawyer Details Legal Weight of Attacks With Heavy Civilian Casualties, The Jerusalem Post, Dec. 26, 2023, available online. ↩

19. 19.

    Helen Regan, Abeer Salman, Zeena Saifi, Amir Tal & Mohammed Tawfeeq, Airstrikes Blast UN Shelters, Official Says, as Israel Announces Complete Encirclement of Gaza City, CNN, Nov. 2, 2023, available online; Bob, supra note 18. ↩

20. 20.

    IDF Says It Is Investigating Central Gaza Strike as Hamas Health Authorities Revise Toll to 68, Times of Israel, Dec. 25, 2023, available online. ↩

21. 21.

    Gili Cohen, Hebron Shooter Elor Azaria Sentenced to 1.5 Years for Shooting Wounded Palestinian Attacker, Haaretz, Feb. 21, 2017, available online; Isabel Kershner, Israeli Who Shot Palestinian Teenager Is Sentenced to 9 Months in Prison, N.Y. Times, Apr. 25, 2018, paywall. ↩

22. 22.

    Nidal Al-Mughrabi & Dan Williams, Israel Says New Strike on Gaza Refugee Camp Kills Second Hamas Leader, First Evacuees Reach Egypt, Reuters, Nov. 1, 2023, available online. ↩

23. 23.

    Bob, supra note 18. ↩

24. 24.

    Bel Trew, Israeli Airstrikes Wiped Out the Family of Gaza’s Leading Doctor. Only His Teenage Son Survived, The Independent, May 24, 2021, available online. ↩

25. 25.

    Bob, supra note 18. ↩

26. 26.

    Emmanuel Fabian, IDF Says It Has Killed More Than 9,000 Hamas Operatives in Gaza Since Start of War, Times of Israel, Jan. 14, 2024, available online. ↩

27. 27.

    Schmitt, supra note 2. ↩

28. 28.

    Jason Willick, Opinion, We Can’t Ignore the Truth That Hamas Uses Human Shields, Wash. Post, Nov. 14, 2023, paywall; Beaumont, supra note 14; NATO StratCom Hamas’ Use of Human Shields in Gaza (2014), available online. ↩

29. 29.

    Tovah Lazaroff, Khan al-Ahmar Can Be Razed if Israeli Government Wants to Do So—High Court, The Jerusalem Post, May 7, 2023, available online. ↩

30. 30.

    Bosco Ntaganda: Wanted Congolese in US Mission in Rwanda, BBC News, Mar. 18, 2013, available online; Bosco Ntaganda in the ICC’s Custody, Relief Web, Mar. 22, 2013, available online. ↩

31. Suggested Citation for this Comment:

    Yonah Jeremy Bob, Jurisdictional, Substantive Legal and Policy Dilemmas of the International Criminal Court Seeking to Intervene in the Israeli–Palestinian Conflict Generally, and the Current War, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas#Bob.

    Suggested Citation for this Issue Generally:

    What Should the ICC Do in Response to the Israel/Hamas Conflict?, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas.

Argument Continued

Impunity fuels abuses and hollows out the ability of the law to deter atrocities on its own. As such, there is now more than ever a need for strong support for impartial and independent justice processes to bring accountability for serious crimes by all sides. This means support for international justice institutions, like the ICC;25 the UN’s Independent International Commission of Inquiry on the Occupied Palestinian Territory,26 including East Jerusalem, and Israel; the International Court of Justice (ICJ);27 and prosecutions through national courts under the principle of universal jurisdiction.28

The ICC is a court of last resort, meaning it can only intervene when national courts are unwilling or unable to prosecute the very serious crimes listed in the Court’s founding statute. Human Rights Watch research shows that Israeli and Palestinian authorities have failed to credibly investigate and prosecute alleged serious crimes,29 highlighting the importance of an ICC investigation to fill the accountability gap. Since 2016, Human Rights Watch has urged the ICC to pursue a formal Palestine investigation. In our analysis, the grave nature of many of the violations and the pervasive climate of impunity for those crimes made an ICC investigation necessary.

Though Israel is not an ICC member, the Court is empowered to prosecute individuals for serious crimes committed in or from Palestinian territory, as well as crimes committed by Palestinian nationals, including members of armed groups like Hamas. Palestine joined the Court in 2015 and gave the Court a mandate over serious crimes dating back to 2014. Since the onset of the most recent hostilities, there have been two separate referrals of the situation by ICC member countries to the ICC prosecutor for investigation.

The ICC is not the only pathway to justice. On October 10, 2023, the UN’s Independent International Commission of Inquiry stated that there was “clear evidence” of war crimes in Israel and Gaza and that it would be sharing information with relevant judicial authorities, including the ICC.30 The U.N. inquiry was established by the Human Rights Council in Geneva.

Governments can also support other credible pathways to accountability for abuses in Israel and Palestine through the principle of universal jurisdiction. In recent years, the national courts and prosecuting authorities of an increasing number of countries, largely in EU member states, have pursued criminal cases under this principle involving war crimes, crimes against humanity, and genocide committed abroad. This means that state judicial or prosecutorial officials can start investigations even though the crimes were committed elsewhere and regardless of the nationality of the perpetrators or victims.

Cases in European courts have involved crimes committed in Syria,31 Rwanda, the Democratic Republic of Congo, Afghanistan, Iraq, Liberia,32 and Gambia,33 among others. Universal jurisdiction cases are an increasingly important part of international efforts to hold those responsible for atrocities accountable, provide justice to victims who have nowhere else to turn, deter future crimes, and help ensure that countries do not become safe havens for human rights abusers.

Our research shows that effective and impartial justice for serious crimes through universal jurisdiction is achievable where there is the right combination of appropriate laws, adequate resources, institutional commitment, and political will.34

The International Court of Justice is also examining Israel’s conduct in Gaza.35 In December, South Africa filed a case before the ICJ alleging that Israel is violating the 1948 Genocide Convention. The case before the ICJ is not a criminal case against individual alleged violators. Rather, the case is “state-to-state” litigation between U.N. member states governed by legal provisions in the U.N. Charter, the ICJ Statute, and the Genocide Convention.

While the case may take many years to reach a final ruling, on January 26, 2024, ICJ judges issued a decision imposing “provisional measures,” or binding orders, that include requiring Israel to prevent genocide against Palestinians in Gaza, enable the provision of basic services and humanitarian assistance, and prevent and punish incitement to commit genocide.36

We have called on governments to speak out in support of the ICJ proceedings and to publicly commit to support compliance with the Court’s decision.37

The ICJ case and the ICC investigation are likely to influence one another. Indeed, South Africa’s ICJ application references the ICC process numerous times. Each court may apply the findings of the other in its reasoning as their proceedings progress.

There is also a separate related proceeding underway before the ICJ. In December 2022, the U.N. General Assembly requested an advisory opinion from the ICJ on the legal consequences of Israel’s prolonged occupation of the West Bank and Gaza.38 The General Assembly first asked the ICJ for an advisory opinion related to the Occupied Palestinian Territory twenty years ago. In 2004, the ICJ’s advisory opinion found that the route of Israel’s separation barrier violated international law and that it should be dismantled.39 The December 2022 request is wider in scope. The ICJ will convene public hearings on the request starting on February 19, 2024.40

These multiple pathways hold out promise to break cycles of impunity that are a root cause of the suffering in Gaza, the West Bank, and Israel.

But international law depends on political will for its enforcement. This is particularly true for the ICC, which sits outside the U.N. system and does not have its own police force. Across all ICC situations, a lack of cooperation can stymy progress, from unexecuted arrest warrants all the way to obstruction of Court investigations. It is crucial for governments to press Israeli and Palestinian authorities to cooperate with the U.N. inquiry and the ICC, as they carry out their investigations.

Many ICC member countries have remained silent, however, on the importance of pursuing accountability and impartial justice for both Israeli and Palestinian victims of serious crimes. This stands in stark contrast to the responses of these same governments to war crimes in Ukraine. This has led to perceptions41 of double standards,42 putting the ICC’s legitimacy at risk—not because the two situations are necessarily comparable (no two conflicts are), but because many states shouted their support for principles of justice for one, but seemed to forget them for the other.

These double standards have also been at issue in responses to the ICJ case on Gaza. Several states have supported equivalent justice processes before the ICC and the ICJ with regard to charges of genocide in Myanmar but have not spoken up in support of processes addressing the Israel and Palestine situation or highlighted the binding nature of the Court’s orders and the need for compliance. Some have even challenged the legitimacy of the case brought by South Africa to the ICJ. Governments in the Global South and other observers are increasingly calling this out.

We believe that ICC member countries should use every opportunity to publicly speak about the critical role of the Court across all situations on its docket, including in the context of these hostilities. ICC member countries also need to step up43 their financial, political, and practical support so that the Court can effectively deliver on its global mandate with full independence. Chronic underfunding of the ICC by its member countries risks leaving the Court without the resources to meet its critical workload.

There was recent progress at the December 2023 meeting of ICC member countries.44 Rather than ignore the situation in Israel and Palestine, no fewer than nineteen states, by our count, spoke openly about the importance of the role of the ICC there during the high-level general debate opening the session. Responding implicitly to the concern about double standards that is anathema to the rule of law,45 forty-eight countries joined together in a statement during the session declaring that “all victims deserve equal access to justice.”46

The absence of accountability in Israel and Palestine would only fuel further abuses, leave victims and survivors without access to justice that is their right, and leave grievances unaddressed. The fact that the ICC and ICJ can play a role here is a step in the right direction, but in order to have impact, they need global support. Supporting legal processes before the ICC and the ICJ does not require taking a position on the underlying allegations. It entails entrusting impartial and independent processes with assessing the facts and determining responsibility and giving victims—all victims—their day in court.

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

1. 1.

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

2. 2.

   Sari Bashi, HRW, Hamas-Led Attack in Southern Israel Kills Hundreds: All Parties to Conflict Must Abide by Laws of War (Oct. 10, 2023), available online. ↩

3. 3.

   Human Rights Watch, Hamas, Islamic Jihad: Holding Hostages is a War Crime: Free Civilians Held in Gaza; Treat All Humanely; Don’t Use as Human Shields (Oct. 19, 2023), available online. ↩

4. 4.

   Human Rights Watch, Israel/Palestine: Unprecedented Killings, Repression: Urgent Action Needed to Prevent Further Mass Atrocities (Jan. 11, 2024) [hereinafter Unprecedented Killings], available online. ↩

5. 5.

   Sari Bashi, HRW, Israel Still Blocking Aid to Civilians in Gaza: Collective Punishment of Palestinians is a War Crime (Oct. 23, 2023), available online. ↩

6. 6.

   Isaac Chotiner, The Humanitarian Catastrophe in Gaza, The New Yorker (Oct. 15, 2023), available online, archived. ↩

7. 7.

   Human Rights Watch, Israel: Starvation Used as Weapon of War in Gaza (Dec. 18, 2023), available online. ↩

8. 8.

   Balkees Jarrah, HRW, Countries Should Back ICC Investigation on Israel–Palestine: Important Opportunity to Speak Up for Justice (Oct. 25, 2023), available online. ↩

9. 9.

   Clive Baldwin, How Does International Humanitarian Law Apply in Israel and Gaza?, The New Arab (Oct. 27, 2023), available online, archived. ↩

10. 10.

    Israel/Palestine, HRW, available online (last visited Feb. 9, 2024). ↩

11. 11.

    Sudan, HRW, available online (last visited Feb. 9, 2024). ↩

12. 12.

    Ukraine, HRW, available online (last visited Feb. 9, 2024). ↩

13. 13.

    Hostilities in the Gaza Strip and Israel: Flash Update #112, OCHA (last updated Feb. 9, 2024), available online. ↩

14. 14.

    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, as amended [hereinafter Rome Statute], Preamble, available online. ↩

15. 15.

    Balkees Jarrah, HRW, Gaza Hostilities Underscore ICC’s Role: Member Countries Should Extend Prosecutor Full Support (May 20, 2021), available online. ↩

16. 16.

    World Report: Israel and Palestine, HRW, available online (last visited Feb. 9, 2024). ↩

17. 17.

    Human Rights Watch, Israel: 50 Years of Occupation Abuses (Jun. 4, 2017), available online. ↩

18. 18.

    Paul Aufiero, Omar Shakir & Abier Almasri, HRW, Interview: For Palestinians in Gaza, Freedom is Priceless (Jun. 14, 2022), available online. ↩

19. 19.

    Sari Bashi, HRW, Gaza: Two Rights of Return (Jan. 27, 2024), available online. ↩

20. 20.

    Israel: 50 Years of Occupation Abuses, supra note 17. ↩

21. 21.

    Human Rights Watch, A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution (Apr. 27, 2021), available online. ↩

22. 22.

    Lama Fakih & Omar Shakir, Opinion, Does Israel’s Treatment of Palestinians Rise to the Level of Apartheid?, L.A. Times, Dec. 5, 2023, available online, archived. ↩

23. 23.

    Unprecedented Killings, supra note 4. ↩

24. 24.

    Human Rights Watch, Gaza: Apparent War Crimes During May Fighting (Jul. 27, 2021), available online. ↩

25. 25.

    Starvation Used as Weapon of War in Gaza, supra note 7. ↩

26. 26.

    Louis Charbonneau, How the UN Can Help End Israeli Apartheid and Persecution, FPIF (May 19, 2021), available online, archived. ↩

27. 27.

    Human Rights Watch, Gaza: World Court Orders Israel to Prevent Genocide (Jan. 26, 2024), available online. ↩

28. 28.

    Universal Jurisdiction, HRW, available online (last visited Feb. 9, 2024). ↩

29. 29.

    Human Rights Watch, Palestine: ICC Should Open Formal Probe (Jun. 5, 2016), available online. ↩

30. 30.

    Press Release, OHCHR, Commission of Inquiry Collecting Evidence of War Crimes Committed by All Sides in Israel and Occupied Palestinian Territories Since 7 October 2023 (Oct. 10, 2023), available online. ↩

31. 31.

    Human Rights Watch, One Year On: Documenting Koblenz (Jan. 12, 2023), available online. ↩

32. 32.

    Human Rights Watch, France’s Trial for Atrocities Committed in Liberia: Questions and Answers (Oct. 5, 2022), available online. ↩

33. 33.

    Human Rights Watch, Switzerland/Gambia: Jammeh-Era Crimes on Trial (Jan. 5, 2024), available online. ↩

34. 34.

    Universal Jurisdiction, supra note 28. ↩

35. 35.

    Human Rights Watch, World Court to Hear Genocide Case Against Israel: South Africa Seeks Urgent Measures to Halt Abuses in Gaza (Jan. 10, 2024), available online. ↩

36. 36.

    Gaza: World Court Orders Israel to Prevent Genocide, supra note 27. ↩

37. 37.

    Human Rights Watch (@hrw), X (Jan. 26, 2024 6:48 AM), available online. ↩

38. 38.

    Request to International Court of Justice from United Nations for Advisory Opinion Transmitted to the Court Pursuant to General Assembly Resolution 77/247 of 30 December 2022, I.C.J., Legal Consequences Arising From the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem (Jan. 17, 2023), available online. ↩

39. 39.

    Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (Jul. 9, 2004), available online. ↩

40. 40.

    Press Release, I.C.J., Legal Consequences Arising From the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem (Request for Advisory Opinion) (Oct. 23, 2023), available online. ↩

41. 41.

    Human Rights Watch, ICC: Combat Double Standards for Justice (Dec. 4, 2023), available online. ↩

42. 42.

    Maria Elena Vignoli, The Long—Yet Still Uneven—Arc of International Justice, Opinio Juris (Jan. 27, 2023), available online, archived. ↩

43. 43.

    Human Rights Watch, Statement for the General Debate of the International Criminal Court’s Twenty-Second Assembly of States Parties (Dec. 7, 2023), available online. ↩

44. 44.

    Human Rights Watch, Briefing Note for the Twenty-Second Session of the International Criminal Court Assembly of States Parties (Nov. 20, 2023), available online. ↩

45. 45.

    Elizbeth Evenson, Strengthening Global Justice: Renewed Commitment to Equal Access Should Mark ICC Anniversary Year, Jurist (Jul. 17, 2023), available online, archived. ↩

46. 46.

    Liz Evenson (@liz_evenson), X (Dec. 8, 2023 9:31 AM), available online ↩

47. Suggested Citation for this Comment:

    Elizabeth Evenson, Impartial International Justice Mechanisms—Together with International Support—Needed for Accountability for Crimes in Israel–Palestine Conflict, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas#Evenson.

    Suggested Citation for this Issue Generally:

    What Should the ICC Do in Response to the Israel/Hamas Conflict?, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas.

Argument Continued

Research shows that the Complementary Principle and the Completion Strategy have encouraged countries targeted by international tribunals to initiate national atrocity-trials and improve their domestic laws, legal institutions, penalty norms, due process rights of defendants, and witness protections; and that these domestic legal developments have in turn helped to promote accountability for international crimes. For example, Diane Orentlicher found that the ICTY had generated positive impacts on the rule of law in Bosnia and Serbia, especially by strengthening judicial institutions and triggering domestic war crimes prosecutions.3 My own study on the domestic impacts of the ICTR and the Special Court for Sierra Leone4 reached similar conclusions with regards to legal developments in Rwanda and Sierra Leone. Furthermore, the DOMAC Project demonstrated that the ICC encouraged domestic legal developments in four country situations (DRC, Uganda, Sudan, and Colombia).5 In all the above countries, national legal developments that were triggered by international tribunals were considered helpful in promoting accountability and reducing impunity.

Similar developments can be seen in Israel. Despite not being a member of the ICC, Israel is profoundly influenced by the threat of an ICC investigation into its conduct and is therefore seeking to preempt ICC proceedings by periodically adjusting its legal norms, policies, and institutions, to be in a position to activate the Complementary Principle at the relevant time. The need to ensure that the Israeli Supreme Court is willing and able to prosecute allegations of international crimes, and thus protect Israelis from ICC proceedings, was extensively invoked last year by civil servants and activists who opposed the government’s proposed legal reforms that threatened to weaken the Supreme Court. Israel’s behaviour in the “shadow of the ICC” is not new. It has motivated government actions and Supreme Court decisions for over a decade (some of which are analyzed here)6 and encouraged the creation of an international criminal law department7 in the Israeli Attorney General’s Office following the 2009 Gaza war and the first attempt by the Palestinian Authority to confer jurisdiction to the ICC.8 In connection with current events, Haaretz reports that the Israeli Defense Forces (IDF) is:

[I]nvestigating dozens of incidents in the current war with Hamas in the Gaza Strip that have raised suspicions that orders were disobeyed, in which commanders on the ground exceeded their authority or where it is suspected that the international laws of war were violated.9

The Haaretz report also mentions that “Senior IDF officials understand the need for the investigations even if it results in criminal proceedings against soldiers.”10

In addition, Israel is considering adopting new laws and procedures to ensure that it can prosecute over one hundred Hamas members and affiliates for their involvement in the October 7th massacre in a manner regarded internationally as legitimate.11 These suspects were captured by Israel following the massacre and are currently held in pre-trial detention. Israel’s military justice system is capable of handling the mass trials, but streamlined military proceedings are unlikely to enjoy international legitimacy. Israel is also discussing the applicable penalty norms, including whether to avoid charges that entail the death penalty. The desire to ensure that the Hamas trials are internationally legitimate may not be strictly speaking triggered by the Complementarity Principle, but is nonetheless inspired by ICC norms and practices which reflect established international standards for the administration of justice in cases of conflict-related crime. Both examples—the IDF investigations of Israel’s conduct in Gaza and the Israeli domestic Hamas trials—are evidence of the impact of the ICC on legal norms and policies in Israel. As in other cases, such national legal developments are helpful in attaining the ICC’s retributive goals including establishing accountability and reducing impunity and crime.

How does all this relate to prospects of peace and reconciliation in Israel/Palestine? Conflicting claims are made about the ability of international criminal tribunals to promote peace and reconciliation in their target countries. Proponents claim that international trials promote peace and reconciliation by dissipating calls for revenge, individualizing the guilt, delegitimizing radical leaders, establishing the truth, and dispensing justice. The trials could also bring opposing groups closer together because of their humanizing effect: victims of one group may become more human in the eyes of members of the other group when they testify about their fears and experiences, and perpetrators may attract empathy and reveal their humanity when taking the stand, especially if they take responsibility for their crimes and express remorse. However, others argue that international tribunals are irrelevant or even harmful to peacebuilding efforts in their target countries as they are held abroad and run by foreign judges and lawyers who do not understand the local dynamics. Some even argue that international tribunals have a polarizing impact and spark resentment in their target populations due to their perceived failure to address certain narratives and victimhood experiences. Furthermore, local leaders often delegitimize international tribunals, either because they fear being caught in their net or because the truth establish by the tribunals might not be convenient for politicians who want to promote other “truths” about the past. A case on point is the Rwandan government’s delegitimization campaign of the ICTR, which has caused many Rwandans to perceive the ICTR negatively and outright reject its messages without even trying to assess the tribunal on its merits. When facing such “hostile” political environments, any international tribunal, even with the best outreach program, will find it difficult to garner local support or even inform target populations about its work. This, in turn, may reduce the ability of international tribunals to directly affect peace and reconciliation in their target country.

I propose looking at this differently. In particular, I suggest that the ICC–peace relationship should not necessarily be regarded as a direct one. Just as we expect the ICC to attain its retributive goals by activating national justice systems, we should expect the same when it comes to the attainment of its restorative goals. In other words, international tribunals can promote peace and reconciliation through the same mechanism they employ to promote accountability: triggering domestic legal developments in their target countries (which they do even when they are negatively perceived by local populations). When justice is administered on the national level, it is more likely to be perceived by the local population as relevant and legitimate, and therefore has greater potential to yield the restorative effects described above, including humanizing victims and perpetrators, reducing feelings of revenge, and so on, eventually creating conditions conducive to peace and reconciliation. This is especially when domestic accountability procedures target both sides of the conflict, which may be the case in Israel.

As the ICC investigation advances (and the more vocal the ICC Prosecutor is about it), Israel will likely take further steps to activate complementarity, including trying Israelis for alleged international crimes in Gaza and the West Bank (moving beyond military investigations). This could generate empathy towards Gazan victims and create a shift in the way many Israeli Jews think about the Gazan population. In parallel, Israel will prosecute members of Hamas and other Palestinian armed groups in trials that are inspired by ICC norms, including in relation to sentencing and due process rights of defendants. Israel may even adopt the ICC’s approach towards victims. The ICC allows victims to play an active role in the proceedings, including through legal representation, and grants them certain forms of reparation. These advantages have likely motivated the October 7th victims and their relatives to express an interest in participating in ICC proceedings.12 By adopting a similar victim participation scheme, Israel could accord the October 7th victims (and their relatives) much needed recognition and reparations and help them heal. If new procedures will be adopted for purposes of the Hamas trials, the various organizations created to support the October 7th victims may seize the opportunity and advocate the inclusion of victim participation and reparation provisions. Empowered victims could become active in peacebuilding, following the example of Colombia and other post-conflict societies where victims played a major role in promoting peace and reconciliation processes. In any case, the above examples are meant to emphasize that we should consider the ICC impact on peace with such domestic developments in mind.

If the ICC investigation will focus on certain conduct which has been tolerated in Israel over the years; such as the use of inflammatory language regarding Palestinians, and Jewish settler violence towards Palestinians in the West Bank; Israel may judicially address these crimes in the context of applying complementarity. This could promote the understanding in Israel that these acts are illegitimate and criminal which, in turn, will ease tensions between Jews and Palestinians. The condemnation of such acts will be more affective if it comes from the domestic justice system rather than the ICC, especially due to the negative way in which the ICC is perceived in Israel following years of being delegitimized by Israeli politicians and media channels. This, again, underscores the need to assess the ICC–peace relationship while considering domestic justice processes triggered by the ICC.

Finally, the Complementarity Principle may open the door to alternative transitional justice (TJ) mechanisms in Israel/Palestine. For example, settler violence (or even the mere acts involved in maintaining settlements) in the West Bank could be addressed through TJ mechanisms in an effort to avoid ICC proceedings while also avoiding the further destabilization of the highly polarized Israeli society, and still establishing accountably, acknowledging Palestinian victims, and promoting reparations. In Colombia, for example, the ICC recognized that restorative TJ approaches can fulfil the requirements of complementarity. Establishing post-conflict accountability through TJ mechanisms, such as truth commissions and other restorative methods, has gained popularity in recent years as a way for achieving accountability and acknowledging harm while also rehabilitating perpetrators and promoting reconciliation between polarized groups. Such approaches have been applied in transitions from civil wars (e.g. Rwanda, Colombia, East Timor) and repressive regimes (e.g. South Africa, Argentina) where former rival groups sought to consolidate peace within one political system. But TJ approaches can also be relevant in post-conflict transitions involving two or more political systems. One example is the Germany–Israel reconciliation measures.

To conclude, the promotion of peace and reconciliation is among the ICC’s goals, but many are skeptical that this goal can be attained by the ICC. Some even argue that international tribunals tend to polarize their target societies. One of the problems in this regard is the assumption that there is a direct relationship between the outputs of an international tribunal (e.g. findings, prosecutorial policies) and the societies that are expected to reconcile, downplaying the intervening role of the domestic political environment in which the tribunal operates. At the same time, international tribunals may impact reconciliation indirectly, through their encouragement of national trials and other legal developments in their target countries (which, in turn, will promote peace and reconciliation). In two previous publications, I showed how domestic legal impacts of the ICTR have affected, or at least had the potential to affect, reconciliation in Rwanda.13 Drawing on those insights, I propose that instead of asking how the ICC can directly advance peace in Israel/Palestine, we ask how the ICC can promote peace through its domestic legal impacts. This perspective would hopefully encourage experts and scholars to design and monitor such domestic legal impacts while bearing in mind their potential to promote peace.

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

1. 1.

   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. ↩

2. 2.

   Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice (Sep. 2007), available online. ↩

3. 3.

   Diane F. Orentlicher, OSJI, Shrinking the Space for Denial: The Impact of the ICTY in Serbia (May 2008), available online; Diane F. Orentlicher, OSJI, That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (Jul. 2010), available online. ↩

4. 4.

   Sigall Horovitz, How International Courts Shape Domestic Justice: Lessons from Rwanda and Sierra Leone, 46 Israel L. Rev. 339 (Nov. 2013), paywall, doi. ↩

5. 5.

   DOMAC Reports, DOMAC, available online (last visited Feb. 12, 2024). ↩

6. 6.

   Yahli Shereshevsky, The Unintended Negative Effect of Positive Complementarity, 18 J. Int’l Crim. Just. 1017 (Sep. 2020), available online, doi, earlier version (Aug. 27, 2020) available online. ↩

7. 7.

   המחלקה למשפט בין-לאומי, Gov’t of Israel, available online (Heb.) (last visited Feb. 12, 2024). ↩

8. 8.

   Office of the Prosecutor, ICC, Situation in Palestine: Summary of Submissions on Whether the Declaration Lodged by the Palestinian National Authority Meets Statutory Requirements, ¶ 10 (May 3, 2010), available online. ↩

9. 9.

   Yaniv Kubovich, Israeli Army Investigating Dozens of Suspected Violations of International Law by Its Soldiers in Gaza, Haaretz, Feb. 6, 2024, paywall. ↩

10. 10.

    Id. ↩

11. 11.

    Jeremy Sharon, How Will Captured October 7 Terrorists Be Tried, and on What Charges?, Times of Israel, Nov. 23, 2023, available online. ↩

12. 12.

    Israeli Families Bring Genocide Complaint Against Hamas to ICC, Al Jazeera, Nov. 3, 2023, available online. ↩

13. 13.

    Sigall Horovitz, International Criminal Courts in Action: The ICTR’s Effect on Death Penalty and Reconciliation in Rwanda, 48 Geo. Wash. Int’l L. Rev. 505 (2016), available online; Sigall Horovitz, Rwanda’s Kabgayi Trial Between International Justice and National Reconciliation, in International Practices of Criminal Justice (Mikkel Christensen & Ron Levi eds., 2017), paywall. ↩

14. Suggested Citation for this Comment:

    Sigall Horovitz, The ICC’s Road to Peace Passes Through Complementarity: Possible Peace Enhancing Effects of the ICC in Israel/Palestine, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas#Horovitz.

    Suggested Citation for this Issue Generally:

    What Should the ICC Do in Response to the Israel/Hamas Conflict?, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas.

Argument Continued

Some Israeli government officials are quite aware of the possibility of an ICC investigation, and there have been articles in the Israeli newspapers regarding the risks and vulnerability of Israeli commanders and politicians.8 At one point, the Israeli Ministry of Justice circulated a memorandum to Israeli Knesset members and Government officials alerting them to this danger and warning them to be careful in their public pronouncements which often blatantly threatened or called for measures that would be on their face illegal under international law, and which could be used against them in an international tribunal like the ICC.9 The public position of the Israeli government, however, was that Israel does not recognize the jurisdiction of the Court. It has also used its leverage to try to dissuade Palestinians from even applying to the Court. Prime minister Netanyahu declared that he would consider such appeal to the ICC as a hostile act and that he would treat it accordingly.10 The United States repeated the same arguments and used its own leverage to dissuade the ICC from investigating Israel. In fact the U.S. Congress introduced legislation which contained sanctions against the ICC, its prosecutors, judges, and personnel if they would investigate Israel or the United States.11 The previous administration went as far as cancelling the visa of the Prosecutor of the ICC, and issued sanctions against the ICC, its bank accounts and personnel.12 To the extent that Israel feels it will not be brought to account for its actions before the ICC, we cannot expect that the ICC can create deterrence, provide accountability for war criminals, or even reduce the level of violence.

The greatest tool Israel has, however, to avoid the ICC is the principle of complementarity. Under the rules of the ICC, the jurisdiction of the Court is only complimentary to national courts. It is in fact specifically prohibited from looking into cases that are being, or have been adjudicated before national courts, unless it can be shown that the courts are either unwilling or unable to provide a proper forum for dealing with the alleged crimes and criminals. Israeli officers demonstrating against Netanyahu’s anti democratic measures in Israel have specifically argued that weakening the independence of the Israeli courts would increase their risk of being charged before the ICC at the Hague.

Article 17(2) of the Rome Statute states that a case would be inadmissible if a national court is considering the case, unless it can be shown that the national courts are unwilling or unable to rule on the case, based on the following criteria:

1. The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;

2. There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

3. The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.13

Israel has always projected the image of having professional and independent courts which are capable of dealing with violations by the government and its highest officers. A thorough analysis of its court decisions will show that, in matters that pertain to Palestinian rights and to issues of a highly political nature or the conduct of the Israeli army, the courts, despite their independence, not only fail to act as a restraint on the army or politicians violating the rights of Palestinians, but have been creative in providing legal justifications for army actions which violate international law. Since most of the decisions of the court are not available in English, and Hebrew is not commonly understood by non-Israeli international lawyers, a case will need to be made when the issue finally arrives at the door of the ICC that Israeli courts indeed are unwilling to objectively deal with such international crimes, but are more likely to justify and legitimize them.

The events since October 7, were far more intensive than the events of 2014 which were the subject of the previous complaints to the ICC, which had not been handled expeditiously, as described above. The shock of the Hamas attack on October 7, and the need for vengeance as well as to restore the “deterrence” lost on that date, meant that the Israeli army would use massive power and would be free of any restraints it previously observed. Leaders from the President, to the Defense Minister, the Chief of Staff, the War Cabinet, and the Prime Minister spoke of the need to “erase” “obliterate” “wipe out” and “flatten” Gaza and have repeatedly used genocidal language.14 During the first hundred days, over 30,000 tons of munitions were dropped on the narrow piece of land constituting the Gaza Strip. “Destruction, not accuracy, is our goal,” stated the Army Chief. He openly announced that there were no restraints, and that he would cut off all water, food, and fuel supplies from the inhabitants of Gaza. Over 90% of the civilian population was rendered homeless, and about 80% of their buildings were destroyed or damaged. These and many other statistics pertaining to the allegations of genocide were quoted in detailed U.N. Reports cited in the South African Complaint to the International Court of Justice (ICJ).15 With every passing day, new and more severe figures about death and destruction are being published.

The very existence of the ICC, and its ability to investigate war crimes, should and does have an effect of placing countries and their armies on notice that their actions may be scrutinized in a neutral international court and, hopefully, this could lead to a reduction in violence and a hesitation to commit atrocities. However, this is subject to the perceived consequences that would flow from such an investigation. In this regard, whether a country adjusts its behavior to take into account the risks of an ICC prosecution is governed by its perception of the likelihood of a real hearing on the merits as well as the willingness of other countries to enforce decisions by the ICC, under the principles of universal jurisdiction. Statements by the U.S., for example, that it will not abide by the rulings of the ICC are not very helpful. On the other hand, the attitude of European countries becomes much more important here since about ⅓ of Israelis travel abroad every year. If Israeli officials and high commanders are afraid that a particular country may honor a warrant issued by the ICC, they are less likely to travel abroad. If, however, they believe that there will be no consequences and no enforcement, then the existence or even decisions of the ICC are less likely to deter them.

Where a country, like Israel, feels it has enough political power and leverage to avoid the jurisdiction of the Court, or to ignore the consequences of any adverse decision, then the ability of the ICC to prevent or reduce the level of violence, or lead to accountability for criminal behavior, is diminished.

An additional new factor that influences the effect of ICC is the involvement of the ICJ. Unlike the ICC, which has managed for years to avoid ruling on the situation in Palestine, the International Court of Justice at the Hague cannot be delayed through bureaucratic measures, nor is it subject to the limitations on its jurisdiction that are present with the ICC. The ICJ could be triggered by a complaint filed by any state that is party to Convention on the Prevention and Punishment of the Crime of Genocide. In this case, the State of South Africa succeeded in filing a complaint against the State of Israel on December 27th.16 The Complaint cited the jus cogens character of the prohibition of genocide and the erga omnes and erga omnes partes character of the obligation owed by South Africa as party to the Convention. South Africa not only made several allegations under the Convention, but it also requested a number of Provisional Measures to be immediately undertaken to prevent genocidal actions before the issuance of a final determination in the Complaint, which could take years to be issued.17

The ICJ held two hearings and issued Provisional Orders by an overwhelming majority of 15–2 or even 16–1 where the Judge appointed by Israel, Aharon Barak, also agreed to two out of the six Provisional Orders issued. One of the Orders in particular demanded that Israel take actions to investigate and prosecute individuals for statements that incite to genocide. In its Decision, the ICJ referred to pronouncements of specific individuals such as the Israeli President and Defense Minister, and required Israel to report within thirty days on its implementation of the Provisional Orders.

These actions by the ICJ have already had an impact on the behavior of Israeli officials. An announcement by the Israeli Justice Ministry was made instructing Israeli officials to be careful and to refrain from public statements that can be considered incitements to genocide.18 The Provisional Order the ICJ issued makes it less likely that the ICC Prosecutor will continue to drag his feet in his own investigation of the behavior of Israeli officials, both military and political, with respect to war crimes, crimes against humanity, and the crime of genocide, all of which are within its jurisdiction.

Whether a decision by the ICC will make it easier or harder to advance the process of negotiations and peace and reconciliation between Israelis and Palestinians is hard to predict. Israel has often objected that appeals to the ICC are a distraction and fall in the way of the peace negotiations between Israel and the Palestinians. In light of the great disparity of power between the parties, this seems to be more of an excuse and avoidance of prosecution, especially since there has not been much of a peace process in the current or last decades. It seems Israel is more interested in acting with impunity than in genuine reconciliation. It has also often demanded that Palestinians refrain from appealing to the ICC as a condition for good relations, and have stated that appeal to the ICC will be viewed as a hostile act, and will have consequences.

Certainly, referral to international adjudicatory bodies is far better than resort to armed conflict to bring about positive diplomatic results and should be encouraged in all cases, even though such proceedings are, by their very nature, adversarial and can raise hostility and objections. A judicial process, by its very nature, forces sides to limit their claims to factual matters that can withstand judicial scrutiny, which may lead to narrowing the gap between the narratives of the disputants. It forces both sides to limit their demands and assertions, and to fit them within an agreed set of principles of international law, that apply universally to all. It forces them to consider the claims of each other, and to refrain from positions that cannot be defended before a neutral tribunal. At the very least, it is an arena that does not produce death and destruction to the adversaries but works towards rational outcomes.

ICC prosecutions may be painful for Israel, but at least they offer the weaker Palestinian side some chance to present their case in a neutral forum and hope for some satisfaction that they cannot get by exercising their right to armed resistance. In all cases, if there was a political settlement, Israel would demand and insist on immunity from ICC prosecution, and would insist in any final peace agreement that Palestinians relinquish any right to bring actions against Israeli individuals before the ICC or any international tribunal. The Interim Agreement between Israel and the PLO of 1994, where the author participated as head of the legal committee on the Palestinian side during the negotiations, specifically contained a provision that the Agreement itself, and the dispute settlement provisions contained in it, would be the sole mechanism for dealing with any dispute arising between Israel and the PLO.19

Conclusion

The ICC can be a useful forum for adjudicating allegations of genocide, war crimes, and crimes against humanity. Such a prospect should have an ameliorating effect providing deterrence and criminal accountability, and should, in theory, reduce the level of violence. In reality, the power of this forum depends on the willingness of third parties, particularly Western states, to respect the decisions of the ICC and to translate them into effective sanctions against the criminals. Where they feel they can escape such consequences, their behavior will not be ameliorated, and the power of the ICC itself will be diminished.

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

1. 1.

   Home Page, Int’l Crim. Ct., available online (last visited Feb. 8, 2024). ↩

2. 2.

   Rome Statute, Art. 15. ↩

3. 3.

   Situations Under Investigation, Int’l Crim. Ct., available online (last visited Feb. 8, 2024). ↩

4. 4.

   Patrick Wintour, British Barrister Karim Khan Elected ICC’s New Chief Prosecutor, The Guardian, Feb. 12, 2021, paywall. ↩

5. 5.

   Jonathan Kuttab, Interview with Sha’wan Jabbarin, Executive Director of Al-Haq (Jul. 15, 2023), available online. ↩

6. 6.

   Nafees Ahmad, War Crimes in the Israel–Hamas Conflict: A Case for the International Criminal Tribunal, Jurist (Oct. 30, 2023), available online. ↩

7. 7.

   Id. ↩

8. 8.

   Bart Meijer, ICC Prosecutor Says Israel Must Respect International Law, Reuters, Dec. 3, 2023, available online. ↩

9. 9.

   Israel–Palestine: The Role of International Justice, UN News, Nov. 17, 2023, available online. ↩

10. 10.

    Jonathan Kuttab, The International Criminal Court’s Failure to Hold Israel Accountable, Arab Center Wash. DC (Sep. 12, 2023), available online. ↩

11. 11.

    H.R. Res. 270, 114th Cong. (2015), available online. ↩

12. 12.

    Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 36139 (Jun. 11, 2020), available online. ↩

13. 13.

    Home Page, supra note 1. ↩

14. 14.

    Brian Osgood & Mersiha Gadzo, Israel’s War on Gaza Updates: Israel Must Prevent Genocide in Gaza—ICJ, Al Jazeera, Jan. 26, 2024, available online. ↩

15. 15.

    Latest Developments re: South Africa v. Israel, I.C.J., available online (last visited Feb. 8, 2024). ↩

16. 16.

    Id. ↩

17. 17.

    Id. ↩

18. 18.

    Jeremy Sharon, What Does Israel Need to Do to Comply With the ICJ Genocide Decision?, Times of Israel, Feb. 1, 2024, available online. ↩

19. 19.

    The Israeli–Palestinian Interim Agreement, Art. XXI, Israeli Ministry of Foreign Aff. (Sep. 28, 1995), available online. ↩

20. Suggested Citation for this Comment:

    Jonathan Kuttab, Seeking Justice and Peace: The Role of the International Criminal Court in Addressing War Crimes in Palestine, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas#Kuttab.

    Suggested Citation for this Issue Generally:

    What Should the ICC Do in Response to the Israel/Hamas Conflict?, ICC Forum (Feb. 22, 2024), available at https://iccforum.com/israel-and-hamas.