By Julius Schmitz / GICJ
Abstract
On 21 November 2024, Chamber I of the ICC issued an arrest warrant for Israeli Prime Minister Mr. Benjamin Netanyahu and former Minister of Defense Mr. Yoav Gallant, for crimes against humanity and war crimes committed during the occupation of Gaza beginning in 2023. Since 7 October 2023, thousands of civilians have been killed, and a severe humanitarian crisis has broken out. The extensive destruction and suffering in Gaza up to 30 April 2024 was analysed in an updated human rights report by the United Nations Office of the High Commissioner on Human Rights, based on gathered evidence. Another report by the Special Rapporteur on human rights in the occupied Palestinian territory analyzed Israel’s treatment of Palestinians since 1967. The reports found a plethora of violations of International Humanitarian Law, as well as International Human Rights Law, committed by the Israeli Occupying Forces. Furthermore, the reports found reasonable grounds to believe that Israel has committed acts of Genocide. The statistics on victims collected firmly point towards grave violations of fundamental principles of International Law on a large scale, as well as a general disregard for civilian life throughout the Israeli offensive. Furthermore, there is evidence for a genocidal intent by the Israeli government.
Based on these reports, Geneva International Centre for Justice (GICJ) calls for the international community to increase the pressure on Israel to adhere to International Law, respect the UN Security Council resolutions and stop its war against the Palestinian people.
Introduction
On 21 November 2024, Chamber I of the ICC issued an arrest warrant for Israeli Prime Minister Mr. Benjamin Netanyahu and former Minister of Defense Mr. Yoav Gallant. The warrants were issued for crimes against humanity and war crimes committed from at least 8 October 2023 to at least 20 May 2024. Together with other perpetrators, they are accused of committing the war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution, and other inhumane acts. Netanyahu and Gallant were responsible for impeding humanitarian aid in violation of International Humanitarian Law. Together with the cutting of electricity and reducing fuel supply, their actions severely impacted the population’s access to clean water, medical care, food, and other essential goods. Israel failed to deliver a clear and sound explanation for these actions under humanitarian law. This calculated deprivation of basic resources created living conditions aimed at killing the population of Gaza, which gives grounds to believe that the crime against humanity of murder was committed. Furthermore, the Chamber concluded that the Palestinian population was targeted based on political and/or national grounds, which constituted the crime against humanity of persecution. Furthermore, the restriction on aid deliveries to Gaza forced medical staff to operate without adequate equipment. Amputations and other surgeries, often on children, needed to be carried out without anesthetics or other means of adequate sedation, causing unnecessary suffering and pain. These facts led the Chamber to determine that Mr. Netanyahu and Mr. Gallant had committed other inhumane acts that constitute crimes against humanity.
While the court has not found sufficient evidence to conclude that the crime against humanity of extermination was committed, the UN has continuously found evidence for the intention of Israel to exterminate the Palestinian people and commit acts of genocide. Besides Israeli officials confirming these allegations, statistics and proven facts further confirm it. The issuing of arrest warrants for Mr. Netanyahu and Mr. Gallant is the first step towards bringing justice to the Palestinians.
The Situation in Gaza
Since the escalation of the war on Gaza on 7 October 2023, the region has experienced a humanitarian crisis marked by unprecedented numbers of civilian casualties and the destruction of vital infrastructure. Intense air, land, and sea strikes, as well as ground combat by the Israeli Occupying Forces (IOF), have devastated large amounts of the densely populated Gaza Strip, according to the Ministry of Health of the State of Palestine, killing over 34,535 Palestinians and injuring 77,704 more as of 30 April 2024, according to the UN update report on the conflict. 10,000 people are still missing, presumably buried under the rubble. The majority of the victims were civilians, including many women and children. The report estimates the actual number of victims to be significantly higher than the figure stated by the Ministry of Health of the State of Palestine due to various factors.
The first is the large-scale destruction of vital infrastructure in Gaza. Attacks on the water, electricity, and sewage infrastructure have left many without their basic needs. Repeated raids of hospitals have led to their destruction and left the population without adequate access to health care, further exacerbating the dire humanitarian situation.
Another contributing factor to the high victim count is the access restraints to humanitarian aid and workers, as well as the killing of humanitarian aid workers and local staff responsible for distributing aid. The IOF has further targeted civilians seeking humanitarian assistance, especially in North Gaza, hindering civilian access to desperately needed aid. This has left the population without enough basic resources and caused widespread starvation, especially among infants and the elderly.
The last contributing factor identified in the report is the repeated mass displacement of people through evacuation orders as well as direct combat. Over 1.7 million people, or 75% of the population of Gaza, have been displaced to insufficient shelters. The lack of essential services has led to unprecedented levels of disease and illness in the Strip. The unlawful killing of civilian law enforcement personnel by the Israeli Occupying Force has led to a breakdown of the civil order in these refugee camps, leading to significant gender-based violence, among other things.
Among the 8,119 civilian victims verified by the Office of the High Commissioner on Human Rights (OHCHR), the age ranged from infancy to old age. The report further notes that the majority of verified dead civilians were killed in residential buildings. The death and destruction spread through every area in Gaza, but especially central Gaza was noted to have the highest death toll.
In comparison to other escalations in the Gaza Strip, the recent assault on the Palestinian people in Gaza has claimed the lives of children to unprecedented levels. Almost 14% of victims have been between the ages of 5 to 9 years old. Roughly 12% of verified fatalities ranged from 10-14 years old. The age category from 0-4 years has the third biggest representation among confirmed fatalities, with almost 12% of victims. Unlike in past assaults on Gaza, the distribution of fatalities among genders since October 2023 is almost equal.
Furthermore, it was found that 88% of reported fatalities occurred in situations that claimed five or more lives, with the median attack killing between 10 to 19 people. This high number of fatalities per attack is closely correlated to the large displacement of people, crowding many into the small, and inadequately resourced, shelters still intact. The IOF’s use of weapons with broad area effects in urbanised areas further exacerbates this.
Violations of International Humanitarian Law and Human Rights Law
The trends among the data collected by the OHCHR prove that the attacks on Gaza inflicted casualties evenly among the population since 7 October 2023. Furthermore, entire families being killed together in residential buildings point towards the IOF deliberately failing to comply with International Humanitarian Law over a long period of time. Israel’s offensive on Gaza shows an indifference to civilian life and human suffering, also evident in the means of warfare chosen. Sources that GICJ is in contact with in Gaza further support this. The large number of casualties among the civilian population indicates non-compliance with the principles of proportionality, distinction of military and civilian targets, distinction of combatants and civilians, precaution in attacks to minimise civilian casualties and damage to infrastructure, as well as discontinuation of attacks once disproportionate civilian harm becomes apparent. Such non-compliance is a violation of International Humanitarian Law under the Geneva Convention and its additional protocols, which Israel has ratified. The IOF has provided little to no justification for the frequency with which residential buildings have been struck. In the absence of a justification, Israel’s actions could constitute a violation of the fundamentals of International Humanitarian Law but also of International Human Rights treaty law, which demands the greatest possible protection for families.
Other violations of International Humanitarian Law by the IOF include summary executions of civilians, as well as combatants who have surrendered. An especially devious violation of International Law is the mass killings of refugees attempting to claim humanitarian aid, for example, when 118 Palestinians were reportedly killed after the IOF fired into crowds at the Al-Nablusi roundabout in Gaza City on 29 February 2024. The Israeli Occupation Forces have also targeted aid workers and civilian law enforcement. The United Nations Office for the Coordination of Humanitarian Affairs has reported that more than 196 aid workers have been killed in Gaza. These attacks ought to constitute a violation of International Humanitarian Law, as Israel, as the occupying power, has the responsibility to maintain public order and provide the population with humanitarian assistance. The IOF has further used white phosphorus, an ammunition type banned under International Law due to its indiscriminate effects, the particularly horrible injuries caused by it, and the long-term environmental issues. Other violations of International Humanitarian Law and International Human Rights Law committed by the IOF include the targeting of civilian infrastructure, hospitals, and medical staff, and communication infrastructure, leading to communication blackouts. The IOF has also targeted journalists, induced repeated mass displacements, leading to a lack of shelter, attacked cultural and educational sites, as well as incited human rights violations, abuses and atrocity crimes.
Intent to Commit Genocide
On 14 October 2023, after Israel forced 1.1 million Palestinians to flee from Northern Gaza, the Special Rapporteur on Human Rights in the occupied Palestinian territories, Ms. Francesca Albanese, warned of the risk of deliberate mass ethnic cleansing for the first time. In January 2024, the International Court for Justice recognized the “real and imminent risk [of] irreparable prejudice” to the rights of the Palestinians in Gaza under the Genocide Convention. Israel was instructed to take all measures to prevent genocide. Later, the Occupying Power was ordered to completely halt its offensive in Rafah due to exceptionally high risk to the civilian population. Israel and its supporting states continue to disregard such orders.
According to Article II of the Genocide Convention, a genocide is present if an array of crimes is committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. Proving the intent for genocide, especially in advance, is challenging, and in the past, the focus has shifted from proving intent by analyzing a limited amount of firmly outlined acts towards evaluating the mindset of the perpetrator, the history of the conflict, and other contextual factors. The Rapporteur has found that, currently, Israel’s intent to destroy the people of Palestine as a whole is clearly evident. The UN report on the treatment of Palestinians since 1967 provides a plethora of evidence for this claim, as seen in the broader context of the political project of Israel in the region, the nature of the destruction inflicted on the Palestinian people, and the motives obscuring the specific intent itself.
According to the report, the idea of a “Greater Israel” is strongly tied to Zionism, Israeli politics, and public narratives. The idea of consolidating Jewish sovereignty and demographic majority over not only the current state of Israel but also the Palestinian territories manifest itself in Israel’s settlement policy as well as government discourse. The goal of manifesting Jewish influence over the Palestinian territories is tied to the need to diminish self-determination of the Palestinians and legitimizes the deliberate dehumanization of the people of Palestine. Because Palestinians refuse to leave their lands, destruction has become an unavoidable tool to achieve the goal of a “Greater Israel”. The need to achieve this goal is propagated by the government through shaping the public narrative but also in internal policies and plans.
The attack on Israel on 7 October 2023 provided the impetus to advance goal of a “Greater Israel”. In the military campaign that followed, the IOF has not only disregarded civilian life, as outlined above, but has also aimed to make the Palestinian lands unlivable. By targeting schools, hospitals, churches, and food and water infrastructure, the IOF seeks to permanently expel the Palestinian population. By subjecting it to continuous forced displacement, community ties are broken, the cultural connection to the land is severed, and serious psychological damage is inflicted on the refugees. Another signifier for genocide is if a group is targeted in different locations. Palestinians are not only targeted in Gaza but also in the West Bank, and even inside Israel.
The reasons Israel uses to justify its occupation and military campaign, and that are accepted by Israel’s supporting states, are the destruction of Hamas and the need to return the hostages. These intentions substantiate the genocidal intent. Israel is occupying Palestinian lands, and as the occupying power, it has the responsibility to protect the population under International Humanitarian Law. In this context, attempting to eradicate resistance within the population for reasons of ‘self-defense’ far exceeds the limitations of that term, goes against the Palestinians’ right to self-determination, and replicates historical instances where self-defense was used to justify a genocide. Furthermore, expanding its military operation to the West Bank, together with the statistics discussed earlier, exposes Israel’s intent to target the population of Palestine and not only Hamas. The second goal stated by Israel is the rescue of the Israeli hostages. Fewer hostages have been rescued than killed by indiscriminate bombing and friendly fire, undermining Israel’s claim. The sabotaging of a ceasefire has caused the death of many more hostages and is further proof of Israel’s intent not being the rescuing of hostages but achieving full control over Gaza’s territories.
Geneva International Centre for Justice (GICJ) calls upon all actors to adhere to International Humanitarian Law and International Human Rights Law. The accumulation of violations by the Israeli Occupying Forces, as well as the alarming trends among the casualty figures, make the Occupying Power’s disregard for civilian life and systematic violations of International Law indisputable. Multiple international experts warn of an ongoing genocide. The humanitarian catastrophe in the Gaza Strip requires the international community to immediately take action against Israel’s wrongdoings in every reasonable way at their disposal, to prevent a worsening of the situation. The first step towards accountability needs to be the support of third-party states for the decisions of the ICC. Every country that has signed the Rome Statute is required under International Law to arrest Mr. Benjamin Netanyahu and Mr. Yoav Gallant. Only then can justice begin to be brought to the Palestinians. GICJ further calls on States, such as the USA, to condemn Israel and take urgently needed actions to protect human life in Gaza.
GICJ therefore urges the international community and especially powerful States with close relations to Israel to increase the pressure on the Israeli Government and the Israeli Occupying Forces to adhere to International Law. Furthermore, States must respect the ICC’s rulings, as they have committed to do. A failure to do so would be a significant step towards undermining the international order.
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