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The present armed conflict in Israel and Palestine has certainly shaken the conscience of mankind due to its brutal nature which has reached a degree we have not witnessed for some time. In response to this, members of the international legal scholarly community have voiced their views on the matter. While Professor Jens David Ohlin has provided quite a substantive preliminary overview of the international crimes applicable to one side of the conflict, let us not deny the evident truth that it is far from the end of the story.
In light of the events unfolding the past month and in the spirit of finding accountability by all perpetrators in an effort to end our shared horror, I would like to paint a more complete picture of the ongoing tragedy by delving into events that have not yet been comprehensively discussed by others, in this case, through an international criminal law analysis of the situation in Palestine. For the purposes of this analysis, I will focus on the events occurring since 7 October 2023 in Gaza and the adjacent territories.
The crimes committed by the Israeli state through the Israel Defense Force at the very least amount to multiple counts of war crime under Article 8 of the Rome Statute and customary international law. Notwithstanding the characterization of the broader context as an international or non-international armed conflict, a number of common crimes have been committed. At the same time, several crimes against humanity under Article 7 of the Statute can also be invoked on account of the nature of their actions being consistent with precedents on the definition of both widespread and systematic attacks against a civilian population (see mainly cases at the ICTY—i.e.: Tadić and Kunarac) to qualify the mental and contextual elements of such crimes. At its core, the entirety of the so-called campaign against Hamas is a form of collective punishment subjected to the more than two million civilians of Gaza, a direct violation of Article 33 of the Fourth Geneva Convention. In this piece, I will primarily address four patterns of conduct.
Firstly, the instruction of a complete siege of Gaza by the Israeli Defence Minister, Yoav Gallant, indirectly constitutes a war crime. While the act of a siege itself is not a clear-cut war crime, the method in which it is done and the consequences it entails, as we clearly witness today, are. The deprivation of access to food resulting in starvation of the Palestinian civil population directly falls under Article 8(2)(b)(xxv) or Article 7(1)(b) in conjunction with Article 7(2)(b) for its proximate characters to an act of extermination. By extension, Article 7(1)(k) can also be invoked because of the far reaching impact of being cut off from basic means of livelihood, especially water. The same article is similarly applicable to the use of white phosphorus as an incendiary weapon in Gaza and Lebanon. In line with Additional Protocol III of the Geneva Conventions, this action is a war crime under Article 8(2)(b)(xx) of the Statute.
Secondly, the endless series of bombings which the Israeli Air Force have indiscriminately carried out falls under several provisions under Article 8(2)(b). Israel, acting under the classical pretence of Hamas’ alleged use of human shields, launched widespread bombing all across Gaza’s neighbourhoods, destroying countless buildings categorised as undefended non-military objectives as well as multiple educational facilities, places of worship, and hospitals (among others) which even include multiple strikes on the Jabalia Refugee Camp. These actions violate Article 8(2)(b)(v) on attacks against undefended places that are not military objectives and Article 8(2)(b)(ix) on intentional attacks against protected objects. As indicated by the constantly rising number of civilian casualties which has already reached the tens of thousands, it is hard to say that the consequences of these attacks have not been excessive compared to the anticipated military advantages, a violation of the proportionality principle stipulated under Article 8(2)(b)(iv) (for comparison, see also Strugar).
Thirdly, the evacuation order for the residents of Gaza City is in violation of a number of provisions. While the spreading of Arabic leaflets throughout the city may be seen as compliant with the customary rule regarding advanced warning at first, it made no practical sense on the ground. Twenty-four hours is an extremely narrow timeframe for more than a million people to evacuate a heavily destroyed area with access to neither electricity nor fuel, and it is practically a death sentence for the sick and wounded. Even if more time were to be given, such an action translates to mass displacement of the city’s people, hence a crime against humanity of forcible transfer of population under Article 7(1)(d) in conjunction with Article 7(2)(d) of the Statute. This is not to mention the very strong allegations of airstrikes on the people who were evacuating the city on the supposed ‘safe routes’, which is a clear violation of Article 8(2)(b)(i).
Fourthly, the Israeli forces have neglected their obligations to not target other protected persons under international humanitarian law. Without discrimination, the Israeli forces threaten the safety of medical personnel and the medical facilities they work in on a daily basis such as by launching airstrikes and raids on hospitals, a war crime committed against personnel of humanitarian assistance under Article 8(2)(b)(iii). Members of the press have too mourned their peers who were made casualties of the continuous air and ground assaults. This goes against the protection of journalists as provided in Article 79 of Additional Protocol I of the Geneva Conventions that is derived from the protection of civilians provided also in Article 8(2)(b)(i) of the Statute. Subsequently, attacks on UNRWA compounds and personnel which have resulted in more than a hundred staff members dead are in direct violation of Article 71 of the AP I and Article 9 of the 1994 Convention on the Safety of United Nations and Associated Personnel.
Beyond all of the above, crimes on account of the Israel’s discriminatory motives may additionally apply. The long-standing Israeli occupation has been widely remarked as a regime of apartheid. The atrocities we have witnessed the last few days seem to be a continuation and even an escalation of that. To a more extreme extent, one can even argue based on the language used by Minister Gallant—who called Gazans ‘human animals’—accompanied by the aforementioned manifest physical attacks and deliberate infliction of harmful life conditions which have completely wiped out hundreds if not thousands of families from existence, signify the genocidal intentions of the Israeli emergency unity government which would constitute crimes under Article 6.
Professor Janina Dill was right in saying that asking the questions of who is to blame for starting the war or who is worse would not be constructive. However, lasting peace and justice cannot be served when those orchestrating grave violations of human rights and humanitarian laws are not held accountable for their devastating actions. To that end, this analysis serves as a(nother) starting point for extensive discourse and measures by those who can take concrete steps against such crimes, namely the International Criminal Court.