The United Nations has multiplied its adjudicatory processes regarding Israel in 2024, examining its policies and practices in the Occupied Palestinian Territory (OPT), including East Jerusalem, on the one hand and its conduct of the war in Gaza on the other. This article provides an overview of the various international proceedings and a critique of the findings.
The Occupied Palestinian Territory
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 Palestinian people’s right of self-determination.1 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 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 the Israeli Government’s annexation of East Jerusalem and settlement project in the West Bank constitute a violation of international law. Although those territories were non-sovereign prior to 1967, Israel did not have the right to settle there. 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.2
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. This was the premise between 1992 and 2000 of the Oslo agreement and the Camp David, and Taba talks. The reality in the OPT has changed dramatically since then.
The ICJ opinion 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 government support. The Court concluded that the Israeli Government supports the settlement enterprise in violation of the Geneva Convention by transferring civilians to the OPT, 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. It determines that these practices 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 non-acquisition of territory by force. It finds Israel’s systematic failure to prevent or punish violence against Palestinians by settlers and the army to be a breach of its obligations.
The ICJ also concludes that policies of evictions, house demolitions, and restrictions on residence and movement amount to forcible transfer of the Palestinian population. Without condoning these practices, 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 many to leave. This might amount to forcible displacement and transfer within the West Bank.
Regarding Gaza, the ICJ analysis ignores salient facts. It examines the status of Gaza subsequent to Israel’s withdrawal of its physical civilian and military presence in 2005, saying that the decisive criterion for determining whether a territory remains occupied under international law is not whether the occupying power retains a military presence in the territory at all times. but 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 Gaza, 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 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 one 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, with passports issued only to people on the Israeli-generated population registry. Nonetheless, Egypt could allow freedom of movement over its border, irrespective of Israel’s control over passports.
The Gaza War
Even those who vehemently oppose the Netanyahu coalition’s policies and rhetoric 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 Gazans3, 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/Houthis; the allegations and findings of crimes against humanity, particularly those suggesting a policy of genocide or extermination; and the basing of evidence against Israel on the gap in the casualty figures on each side require careful examination and analysis.
International humanitarian law (IHL) 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.
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, which results from a failure to realize the UN vision of states for both the Jews and the Arabs in the area of Mandatory Palestine.4 The history of the conflict and the Palestinian struggle for self-determination, however, is not directly determinative of the immediate liability for the war in Gaza, especially regarding liability for the conduct of war.
The invasion of Israel by Hamas on October 7th, 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, but the silence of the General Assembly was loud. Furthermore, there was a resounding silence by UN mechanisms regarding the sexual violence, which was only tentatively corrected two months later.5
Israel’s military assault on Hamas in response to the October 7th massacre has been recognized 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 Hamas has been subjected to accusations and, in some cases, findings by various UN and international mechanisms. In accordance with IHL, liability under jus in bello is determined independently of liability regarding jus ad bellum.
(a) ICJ
Israel stands accused of the crime of genocide at the ICJ.6 Hamas, armed, trained, and funded by Iran and Qatar, is not facing such charges, creating a fundamental imbalance in the ICJ’s consideration of the conduct of the two sides. In ruling on provisional measures in the case of South Africa versus Israel, the ICJ by a majority of 15:2 found Israel’s actions could plausibly be genocidal, emphasizing 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 clarified that it is not holding that Israel is committing genocide, and Presiding Judge Donoghue 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 defense, and cited concerns by UN experts at the rise in dehumanizing 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. In the absence of such dehumanizing language, the majority may well have found no case to answer.7
The operative directives of the Court were for Israel to fulfil its obligations under the Convention to prevent genocide and 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 will now be examined under the stigma of plausible genocide rather than the clearly applicable IHL 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). Meanwhile, Hamas, although the de facto government of Gaza, a part of Palestine recognized as a state by the UN in various contexts and an Iranian proxy, enjoys impunity regarding investigation of its aims to eliminate the State of Israel and its conduct of the war. Only one side – Israel – is being investigated for the crime of genocide, because the low evidentiary bar of plausibility and the ergo omnes nature of the process allows any member of the UN to initiate such proceedings. 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 genocide 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 defenseless entity and contributes to the phenomenon of asymmetrical warfare, a new category of asymmetrical lawfare.
(b) International Criminal Court (ICC)
ICC Prosecutor Karim Khan8 has applied for arrest warrants against both Hamas and Israeli leaders: Hamas head Yahya Sinwar, Al-Qassam Brigades Commander Al-Masri, the now deceased Ismail Haniyah, and Israeli Prime Minister Netanyahu and Defense Minister Gallant. It is significant that 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.
The Hamas leaders are accused of taking hostages, rape and other acts of sexual violence, torture and cruel treatment in the context of captivity, with Khan explaining that the charges are based on “medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors.”
Israel’s leaders are accused of willfully causing great suffering or serious injury to body or health, intentional attacks against a civilian population, and persecution. Khan 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 allegations backed up by the investigations of his Office and not decided facts. He has chosen, as regards both sides, to focus on conduct that 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 7th and its rocket attacks for years before, during, and after October 7th 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 indisputable as it clearly acts with intent to harm civilians directly and not as collateral damage from attacking a military target. 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.9
(c) Independent International Commission of Inquiry on the OPT
The Commission, established by the Human Rights Council,10 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, but said it was unable to verify reports of sexual torture and mutilation. It found that “the war crime of taking hostages was committed,” along with the instrumentalization and intentional killing and abduction of children, but determined that Hamas was guilty solely of war crimes, not crimes against humanity. Members of Palestinian armed groups (not Hamas) “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.”
It found that Israeli authorities and members of army committed war crimes, crimes against humanity, and violations of IHL. It held that Israel used starvation as a method of warfare and found it 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 classified these as war crimes and crimes against humanity.
The Commission 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, and 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 within Gaza after 2005, and could not have carried out these acts against Palestinians living there then. 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 7th – 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 7th. This is not only factually biased but also ignores the crucial distinction between ad bellum and in bello discussed above.
(d)Casualty Figures
The number of Palestinian casualties is a central element in the evidence brought to support the accusations and conclusions condemning Israel, particularly with regard to genocide and extermination.
Every life lost 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; it requires a case-by-case analysis, 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 Israeli 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. Undoubtedly, some targets were mistakenly identified and, in some cases, the collateral damage was disproportional; 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 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 human sacrifices. 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 defense experts claim that the ratio between fighters and civilians is far lower than the UN estimates.11
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. In fact, if genocidal intent is present, the crime could be found even in the event of only a few deaths.12 This requirement indicates that the judicial processes erred when relying on casualty figures in attributing, by allegation or by findings, genocide or plausibility of breach of the Genocide Convention by Israel while failing to address the genocidal intent of Hamas-Iran.
Conclusion
Regarding the settlement enterprise and the annexation of East Jerusalem, the ICJ found Israel’s practices to be illegal under IHL. It also called out the growing abuse and violence by Israeli settlers and the army and the government’s failure to prevent and punish them.
As regards determination of the responsibility for the Gaza war and its conduct, the international processes contain serious flaws and omissions. In examining allegations of genocide and extermination against Israel alone and not against Hamas, and even finding liability for genocide in one case, the UN has targeted Israel. In concentrating on these crimes rather than the commission of war crimes, with their requirements of distinction and proportionality, the UN granted Hamas de facto impunity. Numbers of killed and mass evacuations of the civilian population would be relevant were Israel being investigated for war crimes, and Hamas’s use of civilians as human sacrifices would be an important factor in determining the proportionality of Israel’s actions. The flaws and omissions in the judicial processes identified above result in shifting disproportionate blame for the conduct of the war onto Israel while inadequately addressing Hamas’s heinous conduct.
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1 https://www.icj-cij.org/node/204176 Case 186 - Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem
2 Frances Raday: Self-Determination and Minority Rights 26 Fordham Int’l L.J. 453.
3 UN reported on May 8th 2024 the number of registered deaths of 4.959 women and 7,797 children under 18. These figures were reduced from UN previous reporting by approximately half.
4 U.N. General Assembly Resolution 181 (the "Partition Plan") in 1947
5 https://www.unwomen.org/en/news-stories/statement/2023/12/un-women-statement-on-the-situationin-israel-and-gaza; “The growing body of evidence about reported sexual violence is particularly harrowing. Allegations of sexual torture include rapes and gang rapes, sexual assaults, mutilations and gunshots to genital areas. Female bodies were found with their clothing pulled up to their waists, with underpants removed or torn or stained with blood”
https://www.ohchr.org/en/press-releases/2024/01/un-experts-demand-accountability-victims-sexualtorture-and-unlawful
https://www.un.org/sexualviolenceinconflict/wp-content/uploads/2024/03/report/mission-reportofficial-visit-of-the-office-of-the-srsg-svc-to-israel-and-the-occupied-west-bank-29-january-14-february-2024/20240304-Israel-oWB-CRSV-report.pdf
6 https://www.icj-cij.org/node/203454 Case 192 - Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
7 As emphasized in the concurring judgment of Judge Nolte, the German judge.
8 https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrestwarrants-situation-state
9 https://www.ipcinfo.org/fileadmin/user_upload/ipcinfo/docs/documents/IPC_Famine_Review_Committee_Report_FEWS_NET_Gaza_4June2024.pdf. The Famine Review Committee has found “uncertainty and lack of convergence of the supporting evidence which made it unable to make a determination as to whether or not famine thresholds have been passed.
10 https://www.un.org/unispal/document/coi-report-a-hrc-56-26-27may24/”
11 https://www.forbes.com/sites/davedeptula/2024/07/31/on-the-ground-in-gaza-what-i-saw-of-israelsmilitary-operations/
12 https://www.chathamhouse.org/2024/01/south