In the ongoing conflict between Israel and Hamas, international justice is being summoned, with several complaints lodged at the International Criminal Court (ICC) following the 7 October attack by Hamas in Israel and the response by Israeli Defense Forces in Gaza.
Public hearings have also been set for February 2024 by the International Court of Justice (ICJ) on the “legal consequences arising from Israel’s policies and practices in the Occupied Palestinian Territory, including East Jerusalem,” within the framework of a request for an advisory opinion prior to the current conflict, emanating from the United Nations General Assembly.
Complaints filed so far include:
- Reporters Without Borders (RSF) submitted a complaint on 31 October to the ICC for “war crimes committed against journalists in Israel and Palestine,” citing the death of nine journalists, an Israeli killed during the attack on his kibbutz on 7 October, and eight Palestinians. The document mentions the destruction of 50 premises belonging to press organizations in Gaza. This is the third complaint since 2018 filed by RSF with the ICC following the death of journalists in Gaza. The most recent complaint, in 2022, was filed in conjunction with one by the Qatari channel Al Jazeera regarding the shooting death of its Palestinian journalist Shirin Abu Akleh in the West Bank.
- Nine Israeli families impacted by the Hamas attack on 7 October filed a complaint on 2 November at the ICC for “war crime, crimes against humanity, and genocide,” with their lawyer requesting the ICC consider issuing international arrest warrants against Hamas leaders.
- A third complaint for “genocide” in Gaza was filed on 8 November by a collective composed of a hundred jurists from several countries, including members of the bar in Algeria, private individuals, and representatives of associations, represented by the French lawyer Gilles Devers.
- Three Palestinian human rights organizations (Al-Haq, Al Mezan, and the Palestinian Centre for Human Rights) filed a complaint on 8 November with the ICC for “war crimes,” “apartheid,” “genocide,” and “incitement to genocide,” requesting the issuance of arrest warrants against three Israeli leaders. The complaint cites “bombings on a densely populated area, the siege of Gaza, the forced displacement of the population of Gaza, the use of toxic gas, and the deprivation of necessities such as food, water, gasoline, and electricity.”
The ICC to investigate possible war crimes
The ICC has announced its intention to investigate possible war crimes committed in both Israel and Gaza, through its prosecutor, the British Karim Kahn.
During his visit to the Rafah crossing point on 29 October, located between Egypt and the Gaza Strip, Karim Kahn stated in his declaration that “hostage-taking is a serious violation of the Geneva Conventions,” and called for the release of the 239 individuals held by Hamas.
He also reminded Israel of its “obligation to comply with the laws of armed conflict,” stating that “impeding relief supplies may constitute a crime“. Referring to the presence of military advocate generals within the Israeli army, he declared: “They will need to demonstrate that any attack, any attack that impacts innocent civilians or protected objects, must be conducted in accordance with the laws and customs of war, in accordance with the laws of armed conflict.
And I want to be quite clear so there’s no misunderstanding: In relation to every dwelling house, in relation to any school, any hospital, any church, any mosque – those places are protected, unless the protective status has been lost. And I want to be equally clear that the burden of proving that the protective status is lost rests with those who fire the gun, the missile, or the rocket in question.”
In 2021 the ICC had already opened an investigation into crimes committed within what it calls the “situation in Palestine,” starting from 13 June, 2014 (Gaza War, operation “Protective Edge”).
However, Israel is not among the 139 States that have signed the Rome Statute and disputes the ICC’s competence. On its part, the State of Palestine ratified the Rome Statute in 2015 and seized the ICC. It ruled in 2021 that its “territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza, the West Bank, and East Jerusalem.”
An advisory opinion on “Israel’s policies and practices” requested from the ICJ
The International Court of Justice (ICJ), competent to deal with disputes between states, released a statement on 23 October regarding a request for an advisory opinion submitted on 30 December 2022 by a resolution of the United Nations General Assembly prior to the outbreak of the current conflict.
This resolution, adopted by 87 states, with 53 abstentions and 26 votes against, concerns the “legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.”
The ICJ has scheduled public hearings for 19 February 2024 in The Hague, following the receipt of written reports from numerous states. The two specific questions posed by the UN General Assembly to the ICJ are as follows:
“What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?”
“How do the policies and practices of Israel affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?”
Israel disputes the ICJ’s jurisdiction over this matter. The request for an advisory opinion stems from a report published in October 2022 by a commission of inquiry mandated by the UN Human Rights Council and led by South African judge Navanethem Pillay. The report concluded that “There are reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law due to its permanence and the Israeli Government’s de-facto annexation policies”. The document was described as “partial and biased, disqualified by its hatred for the State of Israel” by the Israeli Ministry of Foreign Affairs.
The ICJ, based in The Hague, serves as the principal judicial organ of the UN, with jurisdiction to settle legal disputes submitted to it by states and to give advisory opinions. Also located in The Hague, the International Criminal Court (ICC) is an independent judicial body competent to try individuals accused of genocide, crimes against humanity, and war crimes. It is governed by the Rome Statute, one of the United Nations treaties, which came into force in 2002. The UN Security Council may refer certain situations to the ICC’s prosecutor, and the relationship between the ICC and the UN is governed by a specific agreement.
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