Frances Raday

Memo

The United Nations (UN) has multiplied its adjudicatory processes regarding Israel in 2024. One involves the policies and practices of Israel in the Occupied Palestinian Territories (OPT), including East Jerusalem. The other is its conduct of the war in Gaza. This article provides an overview of those proceedings and a critique of the findings.

The Occupied Palestinian Territories

An International Court of Justice (ICJ) advisory opinion was delivered on July 19 in response to questions posed by the UN General Assembly (UNGA) regarding Israel’s occupation, settlement and annexation of Palestinian territory since 1967 and its violation of the right of the self-determination of the Palestinian people. The Court determined that the Palestinian territories constitute one political unit and that Israel’s occupation, subsequent creation of settlements, and exploitation of natural resources are illegal under international law. This judicial finding follows numerous UNGA and Security Council resolutions calling for an end to Israel’s settlement policies in the Occupied Palestinian Territories (OPT). As a judicial decision, however, it goes further in analyzing the nature of the occupation in policy and practice and its impact on the rights of the Palestinian people.

The bottom line of the decision seems incontrovertible. There is no question that settlement of the West Bank and the annexation of East Jerusalem, as a unilateral project supported by the Israeli Government, constitutes a violation of international law. The status of those territories as non-sovereign prior to 1967 does not mean that they were free for settlement by Israel. Under a combined application of the Geneva Convention and the Hague Convention, an occupying state may not transfer members of its own population to territory acquired by force. The Israeli High Court decision that it was lawful to settle private land purchased in the OPT has no validity in international law.

The right of the Palestinian people to self-determination requires the preservation of land for implementation of that right. In 2003, I examined the status of the symbiotic struggle for self-determination by two peoples as an issue of international law, showing that the only way to create a meaningful human rights regime of self-determination for Israelis and Palestinians is by peaceful separation into two states and, preferably, by ensuring cooperation between them. This was basically what was on offer between 1992 to 2000 in the Oslo, Camp David and Taba agreements. Since then, developments have produced different realities for the West Bank, East Jerusalem and Gaza. 

The ICJ decision carefully records all aspects of the occupation of the West Bank. It points out that, in international law, there is no relevance to distinctions between settlements and outposts; the question is whether they are established or maintained with Israel’s support. The Court concluded that Israel has established and maintained settlements in violation of the Geneva Convention by transferring civilians to the occupied territory, confiscating or requisitioning land for their benefit, exploiting natural resources, including water, for the benefit of the settlers, and extending Israeli law to East Jerusalem and military law to the West Bank. The Court finds Israel’s systematic failure to prevent or punish violence against Palestinians by settlers and the army to be a breach of its obligations. It also concludes that policies of evictions, house demolitions and restrictions on residence and movement amount to forcible transfer of the Palestinian population. Without condoning the practices denounced by the ICJ, the numbers indicate that no effective forcible transfer has occurred: The Palestinian population of the West Bank in 1967 was less than 900,000 and in 2023 stood at 3,000,000, almost a 350% increase under occupation. That said, the 150,000 Palestinians in Area C are subject to extreme deprivation of resources, living space and access to services, causing some to leave, which might amount to forcible displacement and transfer within the West Bank.

The Court holds that the policies and practices of Israel amount to annexation of East Jerusalem and large parts of the OPT. Settlements, exploitation of natural resources, the proclamation of Jerusalem as Israel’s capital, and the application of Israeli law reveal an intent to exercise permanent control over occupied land. This constitutes a violation of the use of force in international relations and its corollary principle of the non-acquisition of territory by force.

As regards Gaza, however, the ICJ analysis ignores salient facts. The Court examines the status of Gaza subsequent to Israel’s withdrawal of its physical civilian and military presence in 2005, saying that for the purpose of determining whether a territory remains occupied under international law, the decisive criterion is not whether the occupying power retains a military presence in the territory at all times but rather whether its authority “has been established and can be exercised”. On the basis of reports of the Human Rights Council Commissions of Inquiry, it concludes that Israel continued to exercise certain key elements of authority over the Strip, including control of the land, sea and air borders; restrictions on movement of people and goods; collection of import and export taxes; and military control over the buffer zone. This aspect of the advisory opinion is questionable. It is counterintuitive to regard Israel as having effective control over Gaza in view of Hamas’s recent construction of a multibillion-dollar infrastructure of military fortification and weapons in a massive tunnel complex. Israel’s rigid control over the borders constitutes a siege rather than effective control over the territory. Furthermore, this is not a hermetic siege but a siege shared by Egypt. The ICJ plays down Egypt’s role, stating that although Egypt governs the Rafah crossing, Israel exercises a large degree of control as only Palestinians holding passports may cross, and passports are issued only to people on the Israeli-generated population registry. Nonetheless, Egypt could allow freedom of movement over its border, irrespective of Israeli issue of passports. 

The Gaza War

Even those who vehemently oppose the Netanyahu coalition should look critically at the concerted assault on Israel by UN and other international mechanisms. The deaths of more than 2,000 civilians and soldiers in Israel and more than 40,000 thousand Gazans, including women and children on both sides, are a tragic reality. However, the imbalance in the accusations and condemnations of Israel compared with those against Iran/Hamas/Hezbollah/Houtis; the allegations and findings of crimes against humanity, particularly those suggesting an Israeli policy of genocide or extermination; and the basing of evidence against Israel on the gap in the numbers of dead civilians on each side require careful investigation and analysis. 

International humanitarian law (IHL) is the law that governs the way in which warfare is conducted: jus in bello. It is purely humanitarian, seeking to limit the suffering caused to civilian populations. It is independent of questions concerning the justification or reasons for war, which are covered by jus ad bellum. Following is a brief look at international decision-making regarding the justification for and conduct of the war.

• Jus ad Bellum – a Just War

In a longer term perspective, the current war between Israel and Gaza is an unprecedented and highly dangerous explosion of the ongoing Israeli-Palestinian conflict. The history of the conflict, the Palestinian struggle for self-determination and the complex reasons for its failure are, however, not directly determinative of the immediate liability for the present outbreak of war in Gaza.

The invasion of Israel by Hamas on October 7, the sadistic massacre of civilians in their homes, on the roads, and at the Nova music festival, together with the persistent and long-term rocket barrages on civilian settlements in Israel before the attack, constitute a straightforward case of unlawful aggression. Hamas, as the de facto government of Gaza, bears liability for this aggression. The massacre was strongly condemned by UN human rights experts, as “heinous violations of international law and international crimes, for which there must be urgent accountability”. The silence of the General Assembly was loud, particularly as contrasted with the UNGA resolution in 2022 which condemned, by a majority of 141 to five, Russia’s aggression against Ukraine. Furthermore, there was resounding silence by UN mechanisms regarding the sexual violence, particularly against women, which was only tentatively corrected two months later. 

Israel’s military assault on Hamas in response to the October 7 massacre has been recognised as a war of self-defense by the United States, Canada, Germany, the UK, Australia and Brazil; however, there has been no such recognition by the UN.

1. Jus in bello –Conduct of the War

The conduct of the war, by Israel and by Hamas, has been subjected to accusations and, in some cases findings, by various UN and international mechanisms. 

(1) In the International Court of Justice, in the case of South Africa versus Israel, Israel stands accused of the crime of genocide. Meanwhile, Hamas, armed, trained and funded by Iran and Qatar, is not a party and hence not accused or counter-accused, creating a fundamental imbalance in its consideration of the conduct of the two sides. Ruling on provisional measures, the ICJ by a majority of 15:2 found Israel’s actions could plausibly be genocidal, emphasising that this is not a decision on the merits but on the low evidentiary bar of plausibility, which is itself an ill-defined standard. Thus, the Court was clear in saying that it is not holding that Israel is committing genocide. Furthermore, Presiding Judge Donoghue has since explained that the finding was not that there is a plausible case of genocide but rather that there is a risk of irreparable harm to the Palestinians’ right to be protected from genocide. 

The ICJ majority found the extent of killing of civilians, the destruction of homes, forcible displacement of a large proportion of the civilian population and the humanitarian crisis in Gaza to be evidence of plausibility. The majority also found plausible intent in a number of reckless and provocative statements by senior Israeli officials, including the president and minister of defence, and cited concerns by UN experts at the rise in dehumanising and racist language directed at Palestinians. The two minority judges found the evidence of intent inadequate to show plausibility. Nevertheless, as pointed out by Judge Nolte, the statements were open to an interpretation that is damning and, in the absence of this kind of dehumanising language, the majority may well have found no case to answer. 

The operative directives of the Court were for Israel to fulfil its obligations under the Convention to prevent genocide and to report to the Court within one month. The Court did not accede to South Africa’s request to order an immediate cessation of the fighting by Israel. 

The scenario described above can be described as Kafkaesque. Israel’s conduct of the war in Gaza is now to be examined under the stigma of plausible genocide rather than the clearly applicable rules of distinction (the requirement that any attack be aimed at a military target) and proportionality (the requirement that any collateral damage caused by such attack must be proportional to the importance of the target) in IHL. Meanwhile, Hamas, although the de facto government of Gaza, a part of Palestine, which is recognised as a state by the UN in various contexts, and a proxy of Iran, enjoys impunity regarding investigation of its aims to eliminate the State of Israel and of its conduct of the war. Under the auspices of the ICJ, the crime of genocide is being examined with regard to only Israel. This is because the ergo omnes nature of the process allows any member of the UN to initiate such proceedings not only one of the parties. It could be claimed that South Africa has abused this process by representing the interests of Hamas without disclosing the credible liability of Hamas under the Genocide Convention. The provisional determination of plausible breach of the Genocide Convention by Israel, while ignoring the genocidal intentions and acts of Hamas-Iran, feeds into the increasing worldview that Israel is conducting a one-sided aggressive war against a passive and defenceless entity and producing a new category of asymmetrical lawfare. 

(2) The Prosecutor of the International Criminal Court, Karim Khan has applied for arrest warrants against both Hamas and Israeli leaders: Hamas head Sinwar; Al-Qassam Brigades Commander Al-Masri; and the now deceased Ismail Haniyah; Israeli Prime Minister Netanyahu; and Defence Minister Gallant. On the Israeli side, the applications are addressed only to the political leaders and not the military. The prosecutor accuses all those indicted on both sides of war crimes and crimes against humanity, including extermination, murder and inhumane acts. However, there are significant variations in other crimes listed against the Hamas and the Israeli leaders. 

Hamas leaders are accused, based on “medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors”, of unconscionable crimes and infliction of unfathomable pain on civilians and members of families, through calculated cruelty and extreme callousness, and of the taking of hostages, rape and other acts of sexual violence, torture and cruel treatment in the context of captivity.

Israel’s leaders are accused of wilfully causing great suffering or serious injury to body or health, intentional attacks against a civilian population and persecution. The prosecutor claims: “Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival,” adding that Israel’s actions “were committed as part of a common plan to use starvation as a method of war and other acts of violence against the Gazan civilian population as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.”

Khan’s claims are, of course, allegations, backed up by the investigations of his Office, and not decided facts. He has chosen, as regards both sides, to focus on conduct which is not subject to the IHL principles of distinction, which requires the restriction of military action to military targets, and of proportionality, which requires that collateral damage to civilians must not be disproportionate. This choice appears even-handed but, in fact, puts Israel’s leaders at a disadvantage: The Hamas massacre on October 7 and its rocket attacks for years before, during, and after October 7 were directed at civilian targets, while the Israeli army has made observable efforts to identify military targets and attempted to warn and evacuate civilian populations. If Israel’s efforts have been inadequate, under the principles of distinction and proportionality, its leaders’ conduct may constitute war crimes, but this must be proved. The liability of Hamas leaders’ conduct, in comparison, is not open to rebuttal. Its policy and practice is indisputably with intent to harm civilians, directly and not as collateral damage in attacking a military target, while Israel’s policy is, at the very least, questionable in this respect. Israel’s use of starvation as a weapon of war is also questionable because it has allowed the entry of humanitarian aid, some of which has been seized and confiscated by Hamas, and the existence of famine has been questioned by various UN agencies. 

(3) The Independent International Commission of Inquiry on the OPT, including East Jerusalem, established by the Human Rights Council delivered findings on the evidence available to it.

The Commission unequivocally found members of the military wings of Hamas and Palestine Islamic Jihad guilty of sexual and gender-based violence against civilians and against members of the Israeli army, and the public desecration of women’s bodies, but said that they were unable to verify reports of sexual torture and mutilation. It found that the “war crimes of taking hostages, intentional killing and abduction of children, intentional direction of attacks against civilians, committing murder, torture, and other inhuman or cruel treatment … and indiscriminate firing of thousands of projectiles towards Israeli towns and cities.” Members of Palestinian armed groups “were found guilty of sexual and gender-based violence against civilians and against members of the Israeli Security Forces, some of whom were hors de combat and should not have been targeted”. On this basis, the Commission determined that “members of the military wings of Hamas and of other Palestinian armed groups, as well as Palestinian civilians who were directly participating in the hostilities” were guilty of war crimes and violations and abuses of IHL and IHRL. It is notable that the finding is against individuals and not against the Hamas de facto government of Gaza and the guilt is solely of war crimes, not crimes against humanity.

It found that Israeli authorities and members of the army committed war crimes, crimes against humanity, and violations of IHL and IHRL. It held that Israel had used starvation as a method of warfare; murder or wilful killing; intentionally directing attacks against civilians and civilian objects; forcible transfer; sexual violence; outrages upon personal dignity; and sexual and gender-based violence amounting to torture or inhuman and cruel treatment were committed. It found Israel guilty of “extermination of Palestinians and gender persecution, of intentionally directing attacks against civilians and civilian objects and additionally of forcible transfer, sexual violence, torture and inhuman or cruel treatment”, and has classified these not only as war crimes, as in the case of “members of the military wing of Hamas” but also crimes against humanity. 

The Commission report stated: “Both the 7 October attack in Israel and Israel’s subsequent military operation in Gaza must be seen in context. These events were preceded by decades of violence, unlawful occupation and Israel’s denial of the Palestinians’ right to self-determination, manifested in continuous forced displacement, dispossession, exploitation of natural resources, blockade, settlement construction and expansion, and systematic discrimination and oppression of the Palestinian people.” This finding omits the crucial fact that Israel did not have effective control of Gaza and could not have carried out these acts against Palestinians living there. It omits the fact that Hamas has been responsible for the launching of tens of thousands of rocket and mortar attacks targeting Israeli civilians prior to October 7 − attacks the UN and EU have described as terrorism and are defined as war crimes by Amnesty International and Human Rights Watch. Hence, the context is presented in a way that is biased against Israel, suggesting that there is some mitigating element in the assessment of Hamas’s responsibility for the heinous massacre on October 7. This is not only factually biased but also ignores the crucial distinction between ad bellum and in bello discussed above. 

(4) The very high numbers of Palestinian casualties are a central element in the evidence brought in the UN processes to support the accusations and the conclusions condemning Israel, particularly with regard to genocide and extermination. 

Every life taken prematurely is a tragedy, but the number of civilians killed is not the sole criterion for establishing a war crime. A war crime is committed when the civilians killed were not the collateral and proportional result of an attack on a legitimate military target. The question of proportionality does involve the number of civilians killed but requires a case-by-case analysis and not an overall reckoning. As regards genocide, a key element is the intent to destroy a group in whole or in part. Numbers may be relevant in this context but are meaningless without a finding of intent. In the case of Gaza, there is no evidence of the Israeli army’s intent to destroy the Gaza population or the Palestinian people as a whole or in part. The army concentrated on military targets, often intentionally embedded in civilian structures, and warned the civilian population to evacuate. It is very likely that some targets were mistakenly identified or the collateral damage was not proportional. However, this calls for a case-by-case analysis of possible war crimes and not an accusation or finding of genocide or extermination.  

All the above UN processes failed to consider Hamas’s contribution to the numbers of civilians killed. They routinely glossed over Hamas’s well-documented use of civilian structures for military purposes. They ignored its disclaimer of all responsibility for protecting civilians against Israel’s attacks on these targets, in practice using the population not just as human shields but as a human sacrifice. Moreover, there is controversy about the numbers themselves. The figures published by Hamas and adopted by the UN do not distinguish between fighters and civilians, and some defence experts claim that the ratio between fighters and civilians is far lower than the UN estimates of that ratio in wars of all types.

The conduct of a particularly bloody war, even one in which many war crimes are being committed and many civilians are killed, does not amount to the crime of genocide if there is no genocidal intent. On the other hand, if genocidal intent is present, the crime could be found even in the event of only a few deaths. This requirement indicates that the UN judicial processes erred when relying on casualty numbers in attributing, by allegation or by findings, genocide or plausibility of breach of the Genocide Convention by Israel while omitting to address the genocidal intent and threats by Hamas-Iran.

• In Conclusion 

As regards the West Bank settlements and the annexation of East Jerusalem, the ICJ has clarified once again the illegality of Israeli settlement activity and annexation under IHL, the growing abuse and violence by Israeli settlers and the army, and the failure of the state to prevent and punish it.

As regards determination of the responsibility for the Gaza war and its conduct, the UN processes contain serious flaws and omissions. In examining allegations of genocide and extermination and even, in one of the processes, finding liability for extermination, the UN has targeted only Israel and not Hamas-Iran, granting Hamas-Iran de facto impunity. Numbers of killed and mass evacuations of the civilian population would be relevant though not determinative in examining the proportionality of Israel’s military actions, but in this respect, the Hamas policy of using the civilian population as a human sacrifice would be an important factor, as yet omitted from the UN processes. The flaws and omissions discussed in the UN judicial processes result in shifting disproportionate blame for the conduct of the Gaza war onto Israel while rendering the heinous conduct of Hamas-Iran far less visible and, as regards the allegation of genocide, absolutely invisible.