Amidst the legal intricacies surrounding Israel’s sustained brutal assault on Gaza, a contentious dialogue has emerged, with opinions oscillating between assertions of war crimes and crimes against humanity on one side and the graver accusation of genocide on the other. Seeking clarity on the matter within the framework of international law, we sought the expertise of legal scholar Maha Abdallah to understand Israel’s relentless onslaught against Palestinians in the Gaza Strip.
Maha Abdallah is a graduate teaching assistant and doctoral researcher in public international law at the Faculty of Law, University of Antwerp. Her research focuses on genocide, settler colonialism, and the Palestinian people. Maha has carried out legal research and human rights advocacy before UN and EU mechanisms and institutions with a primary focus on Palestine since 2013. She continues to be active with civil society on several issues relevant to human rights, social justice, and challenging corporate impunity.
- Many legal scholars and rights groups have labeled Israel’s military assault on Gaza as ‘textbook genocide,’ while others argue against this characterization. How would you define Israel’s actions in the conflict?
The crime of genocide is defined under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) as the intentional destruction of a group, in whole or in part, based on their identity as a national, ethnical, racial, or religious group. The Convention lists five punishable acts, including killing; causing serious bodily or mental harm; and deliberately inflicting conditions of life calculated to bring about the physical destruction of a group, in whole or in part, to be committed with the specific intent.
The intent to destroy a group in whole or in part, which is fundamental and unique to the crime of genocide, is usually the hardest to prove as most perpetrators do not usually publicize their plans to eliminate a group of people.
However, Israel’s retaliatory and vengeful military campaign against the Gaza Strip since 7 October, has featured clear statements publicly and repeatedly made by the Israeli government and military officials dehumanizing Palestinians characterizing them as “human animals” and demonstrating intent to inflict large-scale destruction, turning Gaza into ruins, and to impose a total siege prohibiting the entry of food, water, medical supplies, and fuel against an already besieged population of 2.3 million Palestinians.
Besides the relentless carpet bombing, mass scale destruction of entire neighborhoods and areas, Israel has repeatedly pushed Palestinians in Gaza to evacuate into the southern areas of Gaza that are also subject to shelling and strikes and do not have the minimum resources or capacity to absorb hundreds of thousands of fleeing and displaced persons. There are almost 2.3 million people in Gaza, about 85 percent of the population, who are estimated to be internally displaced, including those who have been displaced multiple times throughout the course of this aggression. The number of Palestinians killed to date is estimated at more than 18,000, including more than 7,000 children, while thousands remain missing under the rubble, and more than 50,000 have been injured or maimed.
Israel’s imposition of a “total siege” on Gaza, which it declared publicly, depriving water, food, fuel, medicine, and medical supplies – as basic means of survival – for 2.3 million Palestinians – and against the backdrop of an already existing 16-year long Israeli closure at land, air, and sea that impoverished Gaza and turned it “uninhabitable”, can only lead to the physical destruction of the population therein.
In its current aggression, Israel has used starvation as a method of warfare. Despite the little aid that has been allowed to enter, people still lack food and fuel to cook. Most bakeries are not operational, due to the lack of fuel, water, and wheat flour, and structural damage. Animals that could produce food or be food are at imminent threat of death because they are starving. Breastfeeding mothers and children already have nutritional deficiencies. Since 11 October, Gaza has been under an electricity blackout. Communications have been deliberately cut and disrupted repeatedly – until today and during the truce. The health sector has collapsed with only a few remaining hospitals functional and with limited capacities.
All these, together with the ongoing forced displacement and transfer of over 1.8 million Palestinians under inhumane conditions, are recognized as methods through which perpetrators have created circumstances and conditions of life to bring about the physical destruction of a group, in whole or in part – a process of slow death, as the International Tribunal on the Rwanda genocide refers to it.
It is important to remind here that genocide is a process and not an event. Therefore, the current genocidal acts being committed by Israel against Palestinians, particularly in the Gaza Strip, is a chapter – a brutal chapter – that is part and parcel of Israel’s ongoing elimination process of the Palestinian people. Israel, as a settler colonial regime, has used various tools of oppression and persecution over the past seven decades, including a prolonged military occupation and a system of apartheid consisting of numerous discriminatory and racist laws, military orders, policies, and practices.
All of this has been carried out with the intent to establish and consolidate Israeli-Jewish supremacy and domination over land and resources across the entirety of Palestine – and against the Palestinian people as a whole, regardless of where they are or what legal status has been imposed upon them. We see this in the continued widespread and systematic violations and abuses against Palestinians in the West Bank, Jerusalem, Israel, and in Israeli prisons, including killing, torture and ill-treatment, among others.
It should also be noted that over the past nine weeks, United Nations (UN) experts, human rights organizations, scholars of international law and genocide, and some states (like South Africa, Venezuela, and Colombia) have been warning and calling on States to meet their duty under the Genocide Convention to prevent and end Israel’s genocidal intent and acts in its current aggression.
Israel’s conduct and practices against Palestinians constitute grave breaches that may amount to war crimes, crimes against humanity, and the crime of genocide – all of which must be investigated and prosecuted at the competent international, regional, and domestic courts worldwide to hold perpetrators and enablers of international crimes to account – wherever and whoever they are.
- Does Israel’s response to Hamas’s October 7 assault comply with the law of war?
Israel, as Occupying Power, exercises effective control over the occupied Palestinian territory which comprises the Gaza Strip and the West Bank, including the eastern parts of Jerusalem. Self-defense within the meaning of Article 51 of the UN Charter cannot be invoked by an occupying power to respond to an attack from an occupied territory (and people) by non-state actors such as Hamas and other Palestinian armed groups. The ICJ’s advisory opinion on the Wall in 2004 confirms that.
Under international law, it does not mean that Israel cannot use force in or against the occupied territory, which would be regulated by the rules of IHL and IHRL. Regardless, more than two months later, it is only clear that Israel has violated every core principle of IHL – distinction, proportionality, precaution, necessity and humanity – throughout its conduct. While this is not the first time, it is definitely the deadliest and most vicious to date.
- Do Palestinians have a right to resist Israeli occupation under international law, and does that right include armed resistance?
Several UN General Assembly resolutions assert peoples and national liberation movements in the struggle for independence from colonial rule and foreign domination. In 1982, UN General Assembly Resolution 37/43, which recalls Namibia and Palestine, affirmed the legitimacy of the struggle for independence, territorial integrity, national unity, and liberation from foreign domination and foreign occupation by all available means, including armed struggle. The First Additional Protocol of the Geneva Conventions also legitimizes peoples’ struggles in the pursuit of exercising self-determination. The Palestinian people have an inalienable right to self-determination, which has been persistently and deliberately denied for decades, as also reaffirmed by numerous United Nations resolutions over the decades. Naturally, the right to resist remains subject to the rules of international humanitarian law, including respect to principles of distinction between civilians and combatants.
- In the context of Hamas’ October 7 offensive into Israel, are such actions justified or condemned under International Humanitarian Law (IHL)?
The previous answer should suffice for the time being, also considering that no independent investigations have been carried out and made publicly available to date concerning the operation and attacks committed on 7 October. Therefore, much of the details and facts remain obscured so it is not possible to investigate or even assess each act against the relevant laws.
- The United Nations chief Antonio Guterres has stated that international law was violated by Israel in its ongoing offensive against the Palestinian armed group Hamas. What are the consequences of violating the law of war, and are these consequences grave enough to necessitate adherence to the rules of International Humanitarian Law (IHL)?
In theory, there are many consequences to violations of IHL at both state and individual levels. The aim is to deter and punish such violations as well as to protect civilians and combatants involved in a situation of an armed conflict and to limit unnecessary suffering, including civilian casualties, displacement, and humanitarian crises.
The gravity and intensity of Israel’s current aggression are compounded by stark violations of international law and grave breaches of international humanitarian law that may amount to war crimes, crimes against humanity, and genocide. It is taking place in a context of decades-long prolonged military occupation, blockade and closure of Gaza, and a wider regime of apartheid imposed on the Palestinian people.
States of the international community have an obligation to act to prevent acts of genocide, especially when the alarm has been raised regarding risks of genocide – both in intent and acts – at the level of UN experts, states, and civil society. Third States should cooperate to help bring to an end the situation arising from Israel’s continued incitement to commit acts of genocide in breach of peremptory norms of international law. Third States are also required to refrain from assisting in maintaining an illegal situation and to cooperate to bring the illegal conduct to an end.
At this point, Third States need to move beyond statements of condemnation and meet their legal duties under international law through concrete measures, including by imposing a two-way arms embargo and economic sanctions on Israel, as well as targeted individual sanctions against perpetrators of breaches and international crimes. States have a full menu of countermeasures relevant to their obligations under international human rights and humanitarian law that they could defer to, including in relation to occupied and annexed territory and other unlawful actions.
It is also important to remind that private actors, including financial institutions, business enterprises, and charities, should also meet their responsibilities under IHL and international law when it comes to their activities and relationships in such a context to avoid direct or indirect involvement – and potential complicity – in grave violations and international crimes. However, to date, it has been made very clear that the Western powers of the international community have made significant efforts to shield Israel and associated actors from any form of accountability. Indeed, impunity to Israel’s wide range of international law violations has been key, and consistent, and has enabled the continuation of these violations against the Palestinian people while justice is nowhere in sight for Palestinians.
- What is the potential of the International Criminal Court (ICC) as well as third states to hold individuals accountable for international crimes?
It has been nearly a decade since the ICC has exercised jurisdiction over the Situation in Palestine. Palestinian civil society and victims have provided the Office of the Prosecutor with thousands of pages of factual and legal analysis and evidence surrounding cases for war crimes and crimes against humanity, namely persecution, apartheid, forced displacement, and forcible transfer, pillage, among others. As of March 2021, an investigation into the Situation in Palestine by the Court has been opened covering crimes within its jurisdiction since 13 June 2014 across the Gaza Strip, the West Bank including the eastern part of Jerusalem. The overall situation has been characterized as slow, delayed, under-resourced, and at times, with significant deliberate obstructions throughout.
Moreover, considering the gravity and intensity of Israel’s action, and clear intent of genocide, the Office of the Prosecutor should have already issued arrest warrants against responsible Israeli leaders. Instead, the Prosecutor’s recent visit to Israel (which has not ratified the Rome Statute) at the invitation of victims therein, then to Palestine on the margin, has raised serious concerns about the independence, impartiality, and lack of transparency of the Prosecutor and his Office. For example, in making reference to Israeli victims, the Prosecutor had no problem repeatedly emphasizing the need to hold perpetrators of crimes against them to account, whereas the Prosecutor clearly avoids using the same language of accountability and crimes when referring to Israel’s conduct and violations against Palestinians that fall within the Court’s jurisdiction. This does not only signal dangers to the Situation in Palestine and justice for Palestinians but also to the wider international justice mechanisms.
As for States, the European Union and some Member States have announced that they are considering sanctioning “extremist” settlers in the West Bank (following the suit of the United States). This is a step in the right direction. However, it should not absolve states from meeting the rest of their duties concerning Israel’s illegal settlement enterprise that amounts to war crimes and crimes against humanity, including the banning of trade. In addition, it should not side away from other involved perpetrators in the construction, maintenance, and expansion of the settlement enterprise, including Israeli government officials, Israeli military personnel, and heads of charities and businesses. They all play a role and must be all held to account.
- Rights groups have previously asserted that Israel’s occupation of the West Bank and Gaza, as well as its treatment of Palestinian citizens of Israel, amount to crimes of apartheid. Is this claim supported by International Humanitarian Law (IHL)?
In the context of Palestine, apartheid has served as a tool of settler colonial domination, rooted in racism and racial discrimination, that has been instrumentalized to remove, replace, and eliminate the Palestinians. Since its creation in 1948, the State of Israel has adopted numerous discriminatory laws, policies, and practices – specifically in the domains of land and property, nationality, citizenship, and residency – manipulating demography to enforce a colonial project, thereby establishing apartheid. These laws and policies explicitly distinguish and afford preferential treatment for Jewish and Jewish-Israeli persons over those who are not; i.e., the Palestinians who are native to Palestine. This has provided Israel with a legal cover that allows for the displacement, dispossession, discrimination, domination, and dehumanization of the Palestinian people.
Also, the key to establishing and imposing this system of apartheid is Israel’s strategic fragmentation of the Palestinian people – legally and spatially. Geographically, Israel has fragmented Palestinians within the Green Line (Israel), the West Bank, including Jerusalem, and the Gaza Strip (OPT); and in exile as refugees. Legally, Israel has divided the Palestinian people into at least four legal domains: Palestinians with Israeli citizenship governed by Israeli civil law; Palestinians with permanent residency status in the eastern part of Jerusalem; Palestinians in the West Bank and Gaza Strip subjected to Israeli military laws and orders; and, Palestinian refugees outside of Palestine who have been denied the right of return since 1948. This has deliberately prohibited Palestinians from gathering and exercising their inalienable rights, namely the collective right to self-determination.
To maintain the system of apartheid, Israel has carried out a wide range of inhumane acts that fall within the meaning of the Apartheid Convention and the Rome Statute. These inhumane acts include murder and arbitrary deprivation of life, arbitrary arrest and illegal imprisonment, torture and ill-treatment, forms of collective punishment, denial of the right to freedom of peaceful assembly and association, restrictions on the right to freedom of movement and residency, population transfer and demographic engineering, persecuting and silencing of individuals and organizations, depriving them fundamental rights and freedoms because they oppose apartheid.
In addition to being prohibited and criminalized in the Convention on the Suppression and Punishment of Apartheid (Apartheid Convention) and the Rome Statute, Additional Protocol I to the Geneva Conventions also lists apartheid practices as grave breaches. However, it is still important to note that IHL is insufficient to address the fragmentation and the collectivity of the Palestinian people in realizing the right to self-determination. This is exactly why IHL and IHRL are important to be applied concurrently in a context like Palestine and to the Palestinian people, as has already been recognized and practiced by the ICJ and UN bodies; to bridge any gaps and afford the maximum protections, rights and guarantees to a people enduring a settler-colonial domination that uses fragmentation, dispossession, and prolonged military occupation as some of the foundational aspects. Indeed, Palestinian civil society “has long advanced the apartheid framework alongside the frameworks of occupation and colonialism as a comprehensive articulation of the reality on the ground.”
- Is there a legal solution under international law for the current situation in Gaza and the end of the occupation in the Occupied Palestinian territories?
There are many actions and measures within the meanings of international law, including those relevant to states’ duty to respect and ensure respect of these frameworks and standards, that could be implemented as a first step to ending the cycle of oppression and injustice. Today, these could start with calling for and ensuring an immediate ceasefire to put an end to ongoing war crimes, crimes against humanity and genocide, while making sure that the arms and military supplies to Israel are halted. Such actions could be complemented with lifting the prolonged blockade and siege on Gaza, permanently. Ending the prolonged military occupation, 56 years later, is also a minimum to guarantee any prospects. These are not only political demands. States of the international community and third states have obligations arising from the situation in Palestine to meet those.
At the end of the day, we have to recognize that the law cannot resolve the entirety of the Palestinian people’s struggle for liberation, justice, and dignity. However, the law and its tools should be a reliable and consistent track that can afford people rights and justice, without discrimination or bias. Unfortunately, this has not been the experience of the Palestinian people and many others of the oppressed nations and communities. This is unsurprising considering that international law and its instruments remain reflective of “past and current power structures of colonialism and domination”.