This post has been contributed by Professor Urfan Khaliq, Module Convenor for International Protection of Human Rights.
In the first part of this blog, we set out some of the broader issues about the law in the context of the Israeli-Palestinian conflict, primarily centred around Gaza since October 2023. In this part of the blog, we try and unpick some of the on-going international legal processes and challenges to certain conduct and behaviours. As is apparent from the title of this blog, there is complexity here and any court can only become involved where it has jurisdiction and that is always contested.
The longest established pronouncement is the 2004 Advisory Opinion of the ICJ on the ‘Israeli wall’, which confirmed and also set out some key legal principles in the context of Israel’s (inter alia) building of settlements in the West Bank, annexation of territory acquired by force, movement of civilian populations, and denial of the Palestinians’ right to self-determination. The 2004 Advisory Opinion relates to East Jerusalem and the West Bank as opposed to the situation in Gaza. Although now pronounced over 20 years ago, it is clear that the ICJ’s Advisory Opinion was normatively very important in articulating the applicable law and its content, but it was ignored by Israel and also by it close allies who have not taken the steps required of them to stop the abuses of the law taking place.
Thus, in December 2022 the General Assembly again asked the ICJ to issue an Advisory Opinion on the legal consequences of the policies and practices of Israel in the Occupied Palestinian Territory. This includes Gaza as well as the West Bank, as the Palestinian territories are seen as one legal area – in international law a state’s territory does not have to be contiguous. The Court issued its Opinion in July 2024, at a time when not only were other relevant legal challenges before it, but also during one of the bloodiest upsurges in death and destruction in recent memory. The court in a lengthy Opinion reaffirmed relevant parts of its 2004 Advisory Opinion but also went further, noting:
- Israel remains bound by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights concerning its actions in the OPTs.
- Many measures cumulatively contravene the prohibition of the use of force and the principle of non-acquisition of territory by force. Israel is not entitled to sovereignty over any part of Palestinian territory, and its security concerns cannot override the principle prohibiting the acquisition of territory by force.
- Israel’s policies and practices violate Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, specifically the prohibition against segregation and apartheid.
The Court also opined that the Israeli presence in the OPTs is unlawful and Israel is obligated to end it as rapidly as possible. Further, Israel must make reparation for damages caused to all natural or legal persons in the OPTs. And with regard to others, the Court determined that all states are obligated not to recognise as legal any situation arising from Israel’s unlawful presence in the OPTs and not to provide aid or assistance to maintain Israel’s presence there.
What is key in all of this, is that the Court’s 2024 Advisory Opinion fundamentally challenges Israel’s notion of its action being determined by its security concerns. While the Court accepted such concerns were legitimate, they could not justify the policies and practices Israel was engaging in. This is a firm rebuttal to Israel’s arguments relating to the legitimacy and morality of its claims.
As already established, there has been a conflict with immense human suffering in Gaza between the Israelis and Palestinians which broke out in October 2023 further to a Hamas attack in Israel. Gaza is of course part of the OPTs, but the issues here go beyond those considered above. The sheer scale of the destruction, death and carnage in Gaza led to South Africa bringing proceedings against Israel before the ICJ under the terms of the Genocide Convention. This is not an Advisory Opinion but a contentious case. The case brought by South Africa has been considered by the Court due to the urgency of the situation in Gaza, although it has not yet been determined definitively. In January 2024, the Court heard the arguments before it and issued provisional measures. The Court found the South African claim that Israel was perpetrating genocide in Gaza to be plausible. Pending its final decision, the Court indicated certain measures in order to protect the rights claimed by South Africa.
Israel was thus obliged by the Court in relation to Palestinians in Gaza, to take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group. The Court considered that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts. The Court further specified that Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinians in the Gaza Strip. Critically, in terms of future accountability, Israel must take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against Palestinians in the Gaza Strip.
Proving the specific intent required for genocide is difficult enough at the best of times; intentional destruction of evidence makes that even more so. Equally, in the era of social media there is a trail of behaviours irrefutably capturing incriminating actions for the purposes of legal accountability. Burdens of proof differ, however, before the ICJ for the purposes of state accountability and the ICC for the purposes of individual responsibility.
Distinctly, although related, (to add the complexity) the International Criminal Court, in November 2024, decided to issue arrest warrants against Hamas and Israeli leaders, following a request made by the ICC Prosecutor, Karim Khan, in May 2024. Thus, there is another ongoing international court based legal process relating to the situation between the Palestinians and Israelis.
The ICC, of course, holds individuals accountable. In November 2024, warrants were issued against the Commander-in-chief of Hamas’s military wing, Diab Ibrahim al-Masri, for war crimes and crimes against humanity in Israel and Gaza during and after the attack on 7 October 2023. Arrest warrants were also issued for Israeli Prime Minister Benjamin Netanyahu and his former defence minister, Yoav Gallant, in respect of war crimes and crimes against humanity alleged to have been committed in Palestine in response to the Hamas attack of 7 October 2023.
The ICC is, of course, a court of last resort. It is intended to be complementary to states’ domestic criminal justice systems: the ICC may only exercise its jurisdiction when a state is either unwilling or unable to investigate and prosecute international crimes itself. The arrest warrant against Diab Ibrahim al-Masri concerns his role in the murder of hundreds of civilians on 7 October 2023 and the taking of many hostages. The ICC’s Pre-Trial Chamber found reasonable grounds to believe that he had committed numerous war crimes and crimes against humanity covered by the ICC Statute including, murder, extermination, torture, sexual violence, taking hostages, and outrages upon personal dignity.
Israel is not party to the ICC Statute, but the ICC has jurisdiction over Israeli nationals if they commit crimes on the territory of a state party – in this case, Palestine. As regards Israeli Prime Minister Netanyahu and former Defence Minister Yoav Gallant, the ICC’s Pre-Trial Chamber found reasonable grounds to believe that, by restricting humanitarian assistance in Gaza and depriving the civilian population of essential supplies such as water and medicines, both individuals perpetrated the war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution, and other inhumane acts. The Chamber also considered both responsible for the war crime of intentionally directing attacks against civilians.
The next stage of the proceedings is the confirmation of charges before actual trial. During that stage, the ICC Pre-Trial Chamber will hold a hearing, normally in the presence of the person(s) charged, to assess whether each charge is supported by sufficient evidence. The ICC cannot try individuals in absentia, so custody of the accused is key for any prosecutions to proceed. The ICC relies on states’ cooperation for the enforcement of all its decisions, including the execution of arrest warrants. All states parties to the ICC are thus obliged to arrest the named suspected individuals if they enter their territory. Whether any will do so remains to be seen and the individuals are unlikely to travel to states where they will face the prospect of arrest. If the suspects are ever apprehended and handed over to the ICC, it will take years to conduct any trials and with many procedural challenges along the way.
On the political front, Israel and the USA have clearly voiced opposition to the issuing of only the arrest warrants against Netanyahu and Gallant. But this is where we come back to the broader issues alluded to in the first part of this blog. Legal processes are highlighting the culpability of protagonists on both sides of the conflict. Moral arguments and debates around right and wrong are thrown into sharp relief by the law. The contestation around what the law is and the obligations it imposes have in part become clearer and are likely to become clearer still. But ultimately what the law and courts can achieve is limited. Political agreement will be needed to resolve the broader dispute. The legal issues there will be focused on the ‘agreed’ outcomes, not the process, past behaviours, or the power and influence of the protagonists. All conflicts are complex, confusing and contentious. The Israeli-Palestinian conflict is much more than most and, alas, that is unlikely to change any time soon even with the involvement of different international courts.