Human Security Centre Human Rights and International Security Research
9 February, 2024
by Sam Biden, Research Assistant
The aftermath of the attacks on Israel on 7th October, 2023, has left a trail of devastation and a deepening crisis in the region. The military response initiated by Israel, known as ‘Operation Al Aqsa Flood’, was prompted by a joint assault from two Palestinian armed groups – the Izz ad-Din al-Qassam Brigades (Hamas) and Palestinian Islamic Jihad, marking a significant escalation in tensions. In the wake of the attacks, the conflict has claimed the lives of over 1,200 Israelis and foreign nationals, with 36 children among the casualties, many of them on the fateful day of October 7th. The conflict shows no signs of abating, with a cycle of violence and reprisals further complicating any prospects for peace, with Israel’s response supposedly leaning on the elimination of Hamas and restoration of security to Israel and Palestine, yet innocent Palestinians appear to be being targeted as if they were Hamas.
With evidence of widespread war crimes against Palestinians by Israel mounting week by week, the international community has begun a push for accountability, beginning with an ICJ appeal by South Africa. The ICJ is not competent in pursuing justice against those accused of war crimes, the application is simply to clarify which obligations Israel is failing to uphold, in particular, those under the Geneva Conventions and their Additional Protocols. South Africa provides substantial evidence and context regarding war crimes committed by Israel, below is a examination of the key areas of discussion.
Alleged War Crimes by Israel
1) Killing of Palestinians
The toll on the Palestinian population in Gaza since the initiation of Israel’s military assault is staggering and has raised grave concerns on a humanitarian level. Over 21,110 Palestinians have lost their lives, with a chilling 70 percent of the casualties comprising women and children, as reported by the Palestinian Health Ministry. The grim reality extends beyond the fatalities, with an estimated 7,780 people, including at least 4,700 women and children, presumed dead and missing under the wreckage of destroyed buildings. Israel’s consistent use of unguided bombs in one of the most densely populated areas globally is a major contributing factor to the high death toll. The lethal radius of these bombs, with a predicted impact causing severe injury and damage up to 800 meters away, lends credence to accusations of indiscriminate targeting.
The impact on Palestinian children is particularly distressing, with over 7,729 children killed in Gaza to date. The daily toll of over 115 Palestinian children paints a harrowing picture, surpassing the total number of children killed annually across the world’s conflict zones since 2019. Among the dead lay many individuals that are critical to Palestine’s infrastructure, including doctors, journalists and teachers being killed at alarming rates, causing a major rift in the social fabric of an already suffering community.
2) Causing bodily and mental harm
The toll on the Palestinian population in Gaza extends beyond the tragic loss of lives, with over 55,243 individuals wounded in Israel’s military attacks since 7th October, 2023. Many of these casualties are women and children, facing injuries such as burns and amputations that resulted as collateral damage from explosives, with approximately 1,000 children having to have limbs amputated. Disturbing reports indicate the use of white phosphorus, a base compound with the potential to cause serious burns and even death in severe cases, by Israeli forces in densely populated areas. The dire situation is compounded by the persistent absence of functioning hospitals in Northern Gaza due to structural damage, leaving the wounded to face slow, agonizing deaths from their injuries.
In addition to the physical toll, Israel’s military campaign has seen a disturbing pattern of dehumanization and cruel treatment inflicted upon the Palestinian population in Gaza. Reports detail the arbitrary arrests, blindfolding and forced undressing of Palestinian children and the elderly, who are then left in cold weather before being transported to unknown locations. Shocking videos published by Israeli media on Christmas Day reveal hundreds of Palestinians, including these vulnerable groups, being forced to strip to their underwear in degrading conditions inside Al Yarmouk football stadium in Gaza City. Medical responders, among the most important people in Gaza during this time, have faced repeated detentions by Israeli forces, often incommunicado at undisclosed locations. The reported treatment of detainees is said to involve torture and ill-treatment, including the denial of necessities like food, water, shelter and access to toilets to those in captivity.
3) Mass expulsions
The mass expulsion of Palestinians from their homes in Gaza has reached alarming proportions, with over 1.9 million individuals, approximately 85 percent of Gaza’s population, forcibly displaced. The rampant displacement is a result of Israel’s repeated issuance of unrealistic and frequently flawed ‘evacuation orders,’ demanding that Palestinians in certain areas relocate to other parts of Gaza. One such order requested approximately 1.1m Palestinians to migrate from North to South Gaza within 24 hours, a herculean task without mandated humanitarian corridors. The International Committee of the Red Cross (ICRC) raised concerns about the compatibility of such orders with international humanitarian law, highlighting the potential dire consequences and significant impact on hospital patients being forced to migrate, increasing the chances of worsening or additional injuries dramatically.
Despite reported instances of violence and arbitrary arrests during evacuations, Israel has persisted in issuing evacuation notices with short timeframes. Tragically, both those unwilling or unable to evacuate often face bombings in their homes, even those using routes designated for evacuation also witnessed shelling and violence by Israeli forces, showing how neither staying nor evacuating provided Palestinian citizens with any increased level of security. The forced evacuations have resulted in lasting consequences for Palestinians, with Israel damaging or destroying 60 percent of Gaza’s entire housing stock, with destruction so extensive that these areas have become largely uninhabitable.
4) Deprivation of access to food, water and medical aid
On 9th October 2023, Israel declared a “complete siege” on Gaza, cutting off all essential supplies, including electricity, food, water and fuel. Prior to October, the average of approximately 500 trucks per day for humanitarian aid was consistently met and the limited supplies allowed in were efficiently distributed during the ongoing hostilities, yet these standards have now fallen considerably, resulting in lower levels of aid reaching those most in need. In response. The UNSC passed Resolution 2720, which demanded access to and throughout the entire Gaza Strip for humanitarian relief consignments. Sadly, due to security concerns for the safe delivery of such aid, the Resolution has remained largely ineffective.
Israel’s military assault on Gaza has inflicted severe damage on Gaza’s medical healthcare system, a vital lifeline for the Palestinian population. Médecins Sans Frontières, an international charity that provides medical aid to those affected by conflict, wrote a letter to the UNSC, condemning Israel’s blatant disregard for the protection of Gaza’s medical facilities. Their concerns are well reasoned with hospitals having been targeted by bombings, tank and gun fire with 238 direct attacks on healthcare, killing 570 Palestinians, 22 of whom being medical workers. In total, 61 hospitals or healthcare facilities have been affected, with health workers on the frontline being directly targeted by Israeli forces.
The impact on the Palestinian population in Gaza is severe, with Israel pushing the Palestinian community to the brink of famine. The Secretary-General notes that four out of five of the hungriest people globally are in Gaza (although this statistic may be flawed, that should not take away from the seriousness of the crisis), facing the highest levels of acute food insecurity ever classified by the IPC, causing mass desperation, leading to people stopping aid trucks and consuming food immediately. The WHO reports an unprecedented 93% of the population in Gaza facing crisis levels of hunger, with insufficient food and high levels of malnutrition, creating catastrophic conditions for many households resorting to extreme measures to afford a simple meal.
ICJ – Provisional measures
On the 26th January 2024, the ICJ concluded by a majority that Israel was at risk of committing genocide against the Palestinian community. The order urges Israel to immediately cease all acts or omissions taken against the Palestinian community that are listed as provisions under the Genocide Convention, including killing, causing serious bodily and mental harm and aiming to bring about the physical destruction of the group. Israel has 30 days to prepare a report of all measures they shall take to prevent the genocide of Palestinian community.
A new special tribunal?
With many of South Africa’s accusations regarding a potential genocide of the Palestinian community being grounded as ‘plausible’ by the ICJ, an ad hoc tribunal may be established to extensively investigate and conclude whether a Palestinian genocide occurred. Ad hoc tribunals, such as those created to investigate crimes in both the Former Yugoslavia (ICTY) and Rwanda (ICTR), are established through Article 41 of the UN Charter, allowing for a temporary investigative and prosecutorial process against parties within the jurisdiction of the Court.
Lessons from ICTY
Should an ad hoc tribunal be established to investigate a potential genocide, key observations established by the ICTY will be relied upon.
Joint criminal enterprises (JCEs) – JCEs are a form of unique liability for ad hoc tribunals, granting the court the power to extend criminal liability beyond those with effective control to those with willing intent. This goes beyond politicians and high-ranking military officers, extending to anyone who knowingly participates in a foreseeable war crime, such as deploying explosives with the intent to kill a targeted, protected group. In this case, every individual acting in association with Israel as an agent of the state may be liable for war crimes.
Material destruction – This refers to the phrasing ‘in-part’ or ‘whole’ within the Genocide Convention itself. In practice, neither the whole group nor a significant part of the group must be destroyed to fulfill genocidal intent, the material destruction of the group can manifest this intent through various avenues. For example, forced transfers that directly affect the reconstitution of the group can act as material destruction, such as the 24-hour mandatory evacuations being forced on those in Northern Gaza. Additionally, the violent aftermath of these forced evacuations in the affected areas, despite many people not being able to evacuate, have directly resulted in the deaths of tens of thousands of Palestinians.
Relocation and ‘safe-zone’ provisions – ‘Safe-zones’ are established either proactively through governmental actions or through being afforded special protections by law, some examples include humanitarian corridors (proactive) and civilian objects such as hospitals (afforded). Since October 2023, multiple humanitarian corridors and pauses have been established through UNSC Resolution 2712. Designed to protect civilians while evacuating, bombardment, shelling and gunfire have all reportedly interrupted movement to and at these locations. The movement of aid through these areas has also been hampered, with the Rafah, Erez and Kerem Shalom crossings all being closed off by Israel. Furthermore, key ‘safe-zones’ such as those located South of Wadi Gaza, account for a third of all deaths in Gaza, including 104 UNRWA aid workers being killed. Given the consistent level of violence occurring in and around both safe zones, humanitarian corridors and hospitals, it’s clear that any hopes of safe evacuations and safe havens are hollow promises on behalf of Israel.
Dolus Specialis– Article 4 (3)of the ICTY Statute states that conspiracy to commit genocide as well as direct and public incitement to commit genocide are equally punishable, alongside a special intent, or dolus specialis, that relate to structural plans, patterns or policies that support genocidal intent. It’s become clear that Israel refuses to distinguish between Hamas and Palestinians in importance instances, killing tens of thousands of innocent people, blocking all humanitarian aid and bombing safe zones. Elements of the leadership have frequently given the establishing a war with Palestinians, not terrorists. Several quotes from key Israeli officials only support the incitement of genocide itself.
“It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true…and we will fight until we break their backbone.” – President of Israel
“To be clear, when we say that Hamas should be destroyed, it also means those who celebrate, those who support and those who hand out candy — they’re all terrorists and they should also be destroyed.” – Israeli Minister for National Security
“Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter until the Israeli abductees are returned home. Humanitarianism for humanitarianism. And no one will preach us morality.” – Israeli Minister of Energy and Infrastructure
“Hamas became ISIS and the citizens of Gaza are celebrating instead of being horrified. Human animals are dealt with accordingly. Israel has imposed a total blockade on Gaza, no electricity, no water, just damage. You wanted hell, you will get hell.” Israeli Army Coordinator of Government Activities in the Territories (COGAT)
Conclusion
The situation resulting from the attacks on Israel has evolved into a humanitarian crisis of immense proportions. The scale of destruction, mass evacuations and accusations of war crimes by Israel paints a grim picture of the ongoing crisis. The ICJ’s recent ruling, identifying Israel as at risk of committing genocide against the Palestinian community, underscores the severity of the situation. The provisional measures imposed on Israel, demanding an immediate halt to actions violating the Genocide Convention, signal international concern and a call for accountability, with the prospect of establishing an ad hoc tribunal to investigate potential genocide adding another dimension.
Image: Residents inspect the ruins of an apartment in Gaza destroyed by Israeli airstrikes (Source: Palestinian News & Information Agency (Wafa) in contract with APAimages via CC BY-SA 3.0 DEED)
