Genocide and Resistance in Palestine under Law's Shadow

This essay addresses five questions at the intersection of genocide, war, and international law posed by the journal’s editors. Each answer is separate and distinct, though there is overlap between them. The essay begins with my reflections on current conversations about Israel’s genocide against the Palestinians in Gaza and examines South Africa’s effort to hold Israel accountable for violating the UN Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention) at the International Court of Justice (ICJ). The essay goes on to address the fraught relationship between the Genocide Convention and International Humanitarian Law (IHL); the double standards in debates amongst US-based scholars regarding IHL violations committed by Israeli forces and Palestinian resistance groups; and the relationship between the Palestinian right of resistance and Israel’s obligations to suspend its occupation and colonization of Palestine. This essay ends with reflections on the relationship between international law and politics and the Question of Palestine.

Genocide and South Africa’s Case Against Israel at the ICJ

On 29 December 2023, South Africa brought an application against Israel at the ICJ, alleging various violations of the Genocide Convention related to Israel’s then nearly three month armed campaign in the Gaza Strip.¹ That application was preceded by weeks of public debate and insistence by Palestinians and others – including genocide scholars – that Israel was either already committing genocide against the residents of Gaza² or risked committing genocide.³ I begin here by addressing those debates, which are rooted in coversations that pre-date 7 October. I then discuss South Africa’s case against Israel, the ICJ’s provisional measures orders in that case, as well as South Africa’s prospects for success on the merits. Despite many obstacles, I believe South Africa has a reasonable chance of succeeding on its substantive claim that Israel is committing genocide in Gaza.

The Genocide Debate

While public debates about Israel’s genocide against the Palestinians gained particular urgency after 7 October 2023, these discussions have been on-going for years. Many of these conversations, which have been led by advocates and scholars, are rooted in the long arc of eliminationist violence Israel has unleashed onto Palestinians over the last seventy-five years. These facts provide much-needed context for current genocide claims. They also undercut accusations that Palestinians and their allies are supposedly “weaponizing” genocide in this moment.⁴

While adopting different frames – some legal, some sociological, some colloquial –various experts have previously described Israel’s actions toward the Palestinians as genocidal. For example, in an article published in 2022, Palestinian academic Mohammed Nijim utilized a sociological understanding of genocide to describe Israel’s actions in Gaza as a “genocide happening in slow motion.”⁵ In 2008, Palestinian human rights defender and co-founder of the Boycott, Divestment, and Sanctions (BDS) Movement, Omar Barghouti invoked the Genocide Convention to argue that “Israel's hermetic siege of Gaza, designed to kill, cause serious bodily and mental harm, and deliberately inflict conditions of life calculated to bring about partial and gradual physical destruction, qualifies as an act of genocide, if not all-out genocide yet.”⁶ Also ostensibly relying on the legal definition of genocide, in 2007, Richard Falk – a US academic and now former UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967 – described Israel’s actions towards Palestinians, especially those in Gaza, as a “holocaust in the making.”⁷ In 2006 and 2014, Israeli historian, Ilan Pappé, characterized Israel's policy towards Gaza as “an incremental genocide,” likely adopting a colloquial approach to the term.⁸

Some of these and other past claims regarding Israel’s genocidal actions are rooted in events and policies that go back decades.⁹ The Nakba of 1947–48 – when Israel used mass slaughter and intimidation to ethnically cleanse 700,000 to 900,000 Palestinians from their lands – is the focal point of these historical Israeli policies and actions but not their end.¹⁰ Over the course of the ensuing seventy-five years, Palestinians have been subject to many other practices aimed at their destruction and/or elimination from historic Palestine, including the Naksa – a massive act of expulsion in the wake of the 1967 war¹¹; apartheid policies aimed at further removing the Palestinian population from historic Palestine,¹² including expulsion plans specific to the Gaza Strip;¹³ Israel’s suffocating seventeen-year blockade of Gaza before 7 October¹⁴ designed to push the enclave to the brink of collapse and make it unlivable¹⁵; and four “highly asymmetrical” armed Israeli attacks on Gaza, which resulted in an “enormous loss of civilian life and immense property destruction,”¹⁶ to name the most notable examples.

For many Palestinians and others, Israel’s actions in Gaza since 7 October are the culmination of this historical trajectory, rooted both in the structural dimensions of Israeli settler-colonialism as well as genocidal Zionist policies that predate the state of Israel.¹⁷ As historian Patrick Wolfe has noted, settler-colonial projects – of which Israel is one¹⁸ – are processes rather than events.¹⁹ While not necessarily genocidal, settler-colonialism has an inherently “eliminationist” logic and is an “indicator” of genocide: through its desire to eliminate the native presence on land, settler-colonialism creates the conditions in which genocide can occur.²⁰ In Israel, the settler-colonial desire to eliminate the Palestinians is further exacerbated by the long-standing Zionist belief that a large Palestinian population poses an existential threat to the Jewish state.²¹ Given the current demographic parity between Israeli Jewish and Palestinian Arab populations stretching from the Jordan River to the Mediterranean Sea,²² the conditions were ripe for Israel to commit genocide against the Palestinians by the time 7 October rolled around.

South Africa’s Application

In its current case against Israel, South Africa is confronting the most important judicial body in the world with the profound implications of these dynamics. In both its written and oral submissions to the ICJ, South Africa situates the Gaza genocide in Israel’s seventy-five-year settler-colonial project in Palestine.²³ That history not only bolsters South Africa’s legal case for genocide – as I discuss below – it also bridges the deep gulf between the law, facts, and memory. The law of genocide often tells us to disregard what our eyes leave little doubt is happening. This creates a profound disconnect between the legal definition of genocide and popular and historical experiences and understandings of the term.²⁴ By situating the catastrophe in Gaza both within Israel’s long history of eliminationist violence towards Palestinians and fine-tuned legal arguments, South Africa has brought the law into line with the historical reality and lived-experiences of the victims of genocide, forcing a dialectical conversation between two, often, opposing planes – the law on genocide and the reality of genocide.

The rest of this section discusses the provisional measures South Africa has obtained against Israel so far, as well as South Africa’s prospects for success on the merits of its genocide claim.

Provisional Measures

In its application to the ICJ, South Africa describes Israel’s entire campaign inside Gaza since 7 October as genocidal. It presents a wealth of evidence to substantiate that claim – sourced almost exclusively from UN bodies – demonstrating Israel's widescale crusade of destruction inside Gaza, as well as countless genocidal statements made by Israeli government officials and soldiers since that crusade began.²⁵ At the provisional measures stage, this evidence was more than enough to establish the ICJ’s prima facie jurisdiction, a plausible risk of genocide, and the other requirements necessary for South Africa to obtain provisional measures from the Court.²⁶

As for the provisional measures themselves, South Africa has had considerable success, so far. Since the start of its case, the ICJ has issued two separate provisional measures orders. Its first order was issued on 26 January. While South Africa had asked for but did not receive an order requiring Israel to cease all military activity in Gaza,²⁷ the Court’s order effectively requires that Israel’s armed attack stop. Amongst other things, the 26 January order obliges Israel to prevent its military from committing genocide against the Palestinians of Gaza; to prevent and punish the direct public incitement of genocide; and to take “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.”²⁸ While Israel could conceivably continue some military activities in Gaza while still complying with the first of these provisional measures, those activities would have to be substantially scaled back and altered given their current nature.²⁹ Indeed, members of the Court have since suggested that compliance with this part of the 26 January order requires Israel cease its military activities.³⁰ As for the Court’s demand that Israel urgently “enable” humanitarian aid, this provisional measure also effectively requires a complete military ceasefire in Gaza, as various aid officials and organizations have noted.³¹

The Court issued its second provisional measures order on 28 March.³² That order grants South Africa’s third provisional measures request, which was filed in response to the worsening situation in Gaza and Israel’s manifest violations of the 26 January order.³³ In its 28 March order, the Court directs Israel to take “all necessary and effective measures to ensure, without delay, in full co-operation with the United Nations, the unhindered provision at scale by all concerned of urgently needed basic services and humanitarian assistance … including by increasing the capacity and number of land crossing points and maintaining them open for as long as necessary” and “ensure with immediate effect that its military does not commit acts which constitute a violation of any of the rights of the Palestinians in Gaza as a protected group under the [Genocide Convention] … including by preventing, through any action, the delivery of urgently needed humanitarian assistance.”³⁴

While South Africa again requested a ceasefire and the Court again failed to grant the request,³⁵ the 28 March order contains language strongly suggesting the Court believes a ceasefire is necessary to effectuate the order.³⁶ Reinforcing this conclusion, two of the sixteen judges involved in deciding the order issued separate declarations concurring with the decision and emphasizing that a military ceasefire is vital for implementation.³⁷ Five other judges issued declarations expressing their view that a ceasefire should have been part of the 28 March order.³⁸ In light of these statements – and assuming the circumstances in Gaza worsen and Israel continues violating the ICJ’s orders – South Africa stands a good chance of convincing the Court that an explicit ceasefire order is necessary, if and when it makes another provisional measures’ request to the Court.

Prospects for Success on the Merits

At the provisional measures stage, South Africa was not required to prove its substantive claim regarding Israel’s violations of the Genocide Convention nor could the Court have reached such a determination.³⁹ Given the relatively low threshold of proof and scale of Israeli violence inside Gaza, it is unsurprising South Africa prevailed in its provisional measures requests.⁴⁰ If and when the Court decides the merits, however, South Africa’s prospects for success are less certain.⁴¹

This is particularly true when it comes to South Africa’s claim that Israel has engaged in direct acts of genocide under Articles II and III(a) of the convention⁴² The substance of the Genocide Convention, which limits genocide to a relatively small number of acts and carries a stringent intent requirement, makes any genocide claim exceedingly difficult to prove. The ICJ’s jurisprudence on the Genocide Convention has only made the situation worse. As I demonstrate below, in its two merits opinions to date – rendered in the Bosnia v. Serbia and Croatia v. Serbia cases⁴³ – the ICJ introduced numerous obstacles to establishing state responsibility for genocide. This includes adopting rigid interpretations of the convention’s already limited grounds for establishing genocide, as well as fashioning defendant-friendly evidentiary and methodological approaches to assessing genocide claims.

Nevertheless, there are reasons to believe South Africa can overcome these challenges and succeed at the merits stage. These reasons include (1) the countless genocidal statements made by high-ranking Israeli officials; (2) the volume of publicly available, direct evidence of Israel’s actions inside Gaza; (3) existing (and only increasing) expert commentary analyzing genocide accusations against Israel, including from the UN and UN-affiliated persons; (4) the high civilian casualty count and mass starvation happening in Gaza as a result of Israel’s actions; (5) the mass forced displacement and ethnic cleansing committed by Israel in Gaza; (6) the long-standing pattern of Israeli conduct towards Palestinians generally and in Gaza particularly contributing to an inference of genocidal intent since 7 October; (7) the possibility that the ICJ’s case law on genocide may become more victim-friendly before South Africa’s case is decided; and (8) the relative weaknesses of Israel’s counter-arguments to South Africa’s genocide claim.

The rest of this section addresses these challenges and opportunities for South Africa’s case.

The Challenges

Under the Genocide Convention, the prohibition on genocide has two elements – act and intent. Under Article II of the convention, the actions that qualify as genocide are limited to: (1) killing members of a group; (2) causing serious bodily or mental harm to members of the group; (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposing measures intended to prevent births within the group and (5) forcibly transferring children of the group to another group.⁴⁴ During negotiations on the convention, other proposed actions – including forced expulsion and acts of cultural genocide – were excluded from the text, as a result of pressure from several countries including the United States, the United Kingdom, and the Soviet Union.⁴⁵

In its previous merits decisions, the ICJ has interpreted some of these acts quite narrowly.⁴⁶ At times, these interpretations have been consistent with the Genocide Convention itself. For example, in line with the convention’s negotiating history, the ICJ has held that acts of cultural genocide – including the deliberate destruction of religious, historical, and cultural sites – are not covered by the convention, though the Court has suggested that, in certain circumstances, cultural genocide can serve as evidence of genocidal intent.⁴⁷ At other times, the ICJ’s interpretation of the acts listed in Article II has not been supported by the convention. For instance, the ICJ has held that to “cause serious bodily or mental harm to a group” the act in question must contribute to the group’s physical or biological destruction – a narrow interpretation based on scant evidence from the convention and its negotiating history.⁴⁸ The Court has also held that to constitute “measures intended to prevent births within the group” under Article II, rape and other acts of sexual violence must actually impact procreation, providing no legal support for this assertion from the convention or otherwise.⁴⁹

As for intent, the Genocide Convention requires a dolus specialis, or specific intent, to destroy a “national, ethnical, racial, or religious group, as such.”⁵⁰ The drafters and negotiators of the Genocide Convention created this standard to protect the military interests of states – especially the Allied powers who won World War II – and ensure that the convention would not necessarily be violated by violent armed activity, whether in the form of war or mass displacement.⁵¹ In line with this narrow and strict approach to intent, the ICJ has held that a perpetrator of genocide must have both the intent to commit the underlying act of genocide – each act of genocide under Article II has its own intent requirement – and the intent to destroy a protected group.⁵² As the Court has explained, it is not enough for members of a group to be targeted because of their membership.⁵³ That merely establishes “discriminatory” intent.⁵⁴ Instead, the convention requires members of a group be targeted in order to destroy the group itself, in whole or in part.⁵⁵ In other words, a state can systematically murder members of a group because they are racist towards or hate that group and still not satisfy the specific intent for genocide because their purpose is not to destroy the group, as such.

While generally adhering to the convention’s demanding approach to intent, the Court has narrowed the intent requirement even further by adopting certain evidentiary approaches to assessing genocide claims. For example, in Bosnia v. Serbia – the first genocide case ever heard by the ICJ on the merits – the Court established three evidentiary avenues for proving genocidal intent, including by showing a “consistent pattern of conduct.”⁵⁶ In both Bosnia and Croatia v. Serbia, the ICJ held that to establish genocidal intent through such a pattern of conduct the applicant must show that the only conclusion reasonably inferred from the conduct is an intent to destroy a national, ethnical, racial, or religious group, as such.⁵⁷ As others have observed, this standard makes it nearly impossible to draw an inference of genocide from a pattern of conduct⁵⁸ – which is the route most litigants are likely to take to prove state responsibility for genocide.⁵⁹

The ICJ’s jurisprudence has also created other very high evidentiary standards for establishing genocide that arguably do not align with the convention’s aims. For example, to establish the actual commission of genocide, the Court has held that the evidence must be “fully conclusive” for each element of genocide – both for acts and special intent.⁶⁰ In fashioning this standard, the Court drew on its own jurisprudence from outside the genocide context.⁶¹ While that standard may be suitable in other cases, it arguably defeats the object and purpose of the Genocide Convention, which aims to “safeguard the very existence of certain human groups.”⁶² It is unclear how the convention can fulfil this protective purpose if the ICJs "fully conclusive" evidentiary rule applies to genocide claims.

The Court’s other methodological approaches to assessing genocide have created additional obstacles to an applicant's success. In particular, in previous cases, the Court has engaged in atomized rather than comprehensive assessments of genocide claims brought against states. For example, in the Bosnia case, the ICJ disaggregated its analysis and focused on individual events to determine whether, on their own, these events constituted instances of genocide.⁶³ Unsurprisingly, it found that none of those incidents – with the exception of one – satisfied the Genocide Convention's requirements. Reflecting on this approach, one commentator damningly observed that if “one were to search for an easy way for judges and lawyers to avoid the reality of state responsibility for genocide,” this would be it.⁶⁴ In the Croatia case, the ICJ engaged in a more comprehensive review – looking first at the various acts of genocide and then examining whether those acts, taken together, demonstrated genocidal intent – but still failed to discuss numerous incidents presented by the applicant.⁶⁵

The Opportunities

As this jurisprudence suggests, the ICJ has been far more sensitive to protecting states from the serious charge of genocide than in ensuring accountability for victims and deterring future genocidal acts.⁶⁶ Even in these daunting circumstances, however, South Africa’s case has some advantages that may increase its prospects for success.

First, while express statements of genocidal intent are not required to prove genocide,⁶⁷ the Court’s jurisprudence suggests – albeit without explanation or reason – that such statements will likely be central to establishing genocide based on a pattern of conduct.⁶⁸ While usually quite rare, there are many such statements in this case, made by high-ranking Israeli government officials, members of the Israeli Knesset, senior military officers, and foot soldiers, all expressing a desire to destroy the Palestinians as a group.⁶⁹ Though there is a chance the Court might disregard these statements as political rhetoric,⁷⁰ the ICJ’s jurisprudence – albeit outside the genocide context – suggests that unilateral statements made by government officials, particularly where those officials are high-ranking, can have binding legal consequences on a state.⁷¹

Nor are these statements necessarily undercut by other statements made by Israeli officials characterizing the campaign in Gaza as aimed only at eradicating Hamas.⁷² This is because genocide's dolus specialis does not require that Israel’s motives be genocidal. Specific intent and motive are different.⁷³ As South Africa has argued, Israel may be motivated by a desire to destroy Hamas while at the same time harbouring the specific intent to destroy the Palestinian people, as such.⁷⁴

Second, the enormous volume of publicly available direct evidence of Israel’s actions in Gaza – broadcast across both social media and mainstream news outlets and reflected in countless UN reports⁷⁵ – could significantly impact the Court’s perception of events in South Africa’s favour. Unlike Bosnia and Croatia, the Palestinians of Gaza have “livestreamed” their violent elimination to the world.⁷⁶ Israeli forces have similarly publicized their atrocities in Gaza, including through social media.⁷⁷ In particular, evidence-based war reporting has increasingly uncovered IDF practices that undercut Israel’s claim that its “war” is only against Hamas and other Palestinian armed groups rather than against Palestinian civilians⁷⁸ in Gaza.⁷⁹ Amongst other things, this wealth of evidence may help push the Court to undertake a comprehensive assessments of events in Gaza, instead of adopting the atomized and cursory approaches it has favoured in the past. Together with the genocidal statements made by Israeli officials, this evidence may even convince the Court to conclude that genocide in Gaza is official Israeli state policy – another basis for proving specific intent⁸⁰ that is typically the most decisive, if the most elusive.⁸¹

Third, publicly available expert commentary on Israel’s actions in Gaza may further bolster the likelihood that the ICJ makes a finding of genocide. So far, this commentary has included warnings about the risk or actual existence of genocide in Gaza from at least one UN treaty body and various UN experts.⁸² In the past – including in its 26 January provisional measures decision – the Court has relied heavily on such UN-sourced analysis.⁸³ In the coming months and years, there will likely be more detailed analyses on South Africa’s genocide claim from UN-affiliated persons and groups. Not all of this may be favourable to South Africa, but, at least, some of it will be, as it already has been. While the Court will, of course, undertake its own independent analysis of South Africa’s legal claims, ICJ judges can and do look to scholarship and other expert opinion on the legal issues before them to support and confirm their judgments.

Fourth, even though mass killing is not required to establish genocide,⁸⁴ the ICJ’s decisions in Bosnia and Croatia implicitly suggest that genocidal intent is harder to establish without a substantial number of civilian deaths in a short period of time.⁸⁵ Again, because of the nature of events occurring in Gaza, South Africa may be able to overcome even this hurdle. The horror taking place in the Gaza Strip – which experienced aid officials have described as unlike anything they have ever witnessed⁸⁶ – is unprecedented in the contemporary era.⁸⁷ In a little over six months, Israel has killed well over 34,000 Palestinians⁸⁸ based on conservative estimates, with thousands more under the rubble and unaccounted for.⁸⁹ The daily death toll in Gaza is so high that Oxfam has described it as surpassing that of any major conflict in the twenty-first century.⁹⁰ Gaza’s child population has been particularly impacted by Israel’s violence, with Save the Children reporting that children in Gaza have been killed and maimed at an “unprecedented” rate.⁹¹ Thanks to Israel’s total siege of the territory, mass starvation has already arrived and led to more death.⁹² Indeed, in its 28 March provisional measures order, the Court noted that “‘Palestinians in Gaza are enduring horrifying levels of hunger and suffering’” and that “[t]his is the highest number of people facing catastrophic hunger ever recorded by the Integrated Food Security Classification system – anywhere, any time.”⁹³

Taken together, these facts may be decisive in persuading the Court to do what it largely failed to do in the Bosnia and Croatia cases⁹⁴ – conclude that widespread acts of genocide have occurred. Every day that Israel continues its bombardment of Gaza, more horrific evidence will be generated to support South Africa’s claim. These developments will be just as important as events that occurred during the first few months of the conflict since “acts of genocide need not be premeditated and the intent may become the goal later in the operation.”⁹⁵

Fifth, the existence of mass forced displacement and ethnic cleansing⁹⁶ in Gaza may be particularly probative of the existence of genocidal acts and intent. While forced displacement and ethnic cleansing do not constitute acts of genocide on their own, the Court has held that “acts of ‘ethnic cleansing’ may occur in parallel to acts prohibited by … the Convention, and may be significant as indicative of the presence of a specific intent … inspiring those acts.”⁹⁷ Forced displacement and ethnic cleansing may also constitute acts of genocide where they satisfy the definition of those acts – for example, by “causing serious bodily and mental harm” – and occur with the requisite intent.⁹⁸ With Israel having forcibly expelled and ethnically cleansed the vast majority of North Gaza’s population⁹⁹ and otherwise displaced nearly two million Palestinians,¹⁰⁰ these actions may both constitute acts of genocide themselves and establish genocidal intent for other genocidal acts that occurred alongside these displacements.

Sixth, South Africa can point to substantial evidence from the historical record demonstrating a long-standing pattern of Israeli conduct towards Palestinians generally and in Gaza particularly that bolster its case for genocidal intent. Confronting the court with the Nakba and other Israeli policies aimed at countering the “demographic threat” Palestinians supposedly pose to the Jewish state – by, for instance, pointing to Israel’s historical practices of deliberate and wholesale targeting of civilians and civilian infrastructure,¹⁰¹ the seventeen-year Israeli blockade of Gaza, and the various wars Israel has launched against the trapped Gazan population – could help establish an inference of genocidal intent since 7 October, though that outcome is certainly not guaranteed.¹⁰²

Seventh – although also far from guaranteed – the ICJ's caselaw on genocide may soon shift in ways that favour South Africa’s case. The Gambia v. Myanmar case currently pending before the Court is particularly relevant to this issue. In that case, which will likely reach the merits before South Africa’s case is decided, The Gambia accuses Myanmar of taking actions against the Rohingya people that violate the Genocide Convention.¹⁰³ Notably, several other states have intervened in the case to provide their legal views on interpreting the convention.¹⁰⁴ Amongst those states are various Western countries – some of which are strongly supportive of Israel, like the UK and Germany – that have argued for more liberal interpretations of the Genocide Convention. In addition to promoting more flexible approaches to certain geocidal acts – including advocating for child-specific standards when it comes to assessing particular genocidal actions affecting children¹⁰⁵ – these states favour more forgiving interpretations of the convention's specific intent requirement. In particular, they challenge the Court’s rigid reading of intent, including its requirement that genocide be the “only inference that could reasonably be drawn” from a pattern of conduct.¹⁰⁶ Instead, these states urge the Court to “adopt a balanced approach that recognizes the special gravity of the crime of genocide, without rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible.”¹⁰⁷ They also encourage the ICJ to consider various factors in determining whether specific intent can be inferred, including the existence of sexual or gender-based violence, acts targeting children, as well as forced displacement.¹⁰⁸

Because these proposed approaches are more victim-friendly, they favour South Africa’s claim. If the Court decides to adopt these positions in Gambia, it will likely also apply these approaches to South Africa’s case. As a formal matter, the Court is not bound by decisions in earlier cases when deciding new cases. As a practical matter, though, the Court often adheres to its previous rulings – a dynamic that is particularly likely to occur in politically charged matters.

Finally, Israel’s efforts to undercut South Africa’s claim – many of which aim to challenge the existence of specific intent – are unlikely to succeed, at least as framed during Israel's oral presentation to the Court on 12 January 2024.¹⁰⁹ Israel’s most relevant arguments include its view that International Humanitarian Law (IHL) rather than genocide is the relevant legal framework¹¹⁰; its insistence that the IDF’s practice of “warning” civilians to leave targeted areas and creating safe zones undercut any finding of specific intent¹¹¹; its claim that Hamas is solely responsible for the destruction of civilian objects and civilian life in Gaza because it uses Palestinian civilians as “human shields”¹¹²; and its claim that while it provides adequate humanitarian aid to Gaza, Hamas is commandeering and hoarding that aid.¹¹³

For various reasons, none of these arguments – taken either together or separately – decisively undercut the evidence or arguments South Arica has presented (as well as the additional evidence that has accumulated since oral argument in January) to demonstrate that Israel has committed acts of genocide. First, in insisting that IHL – which regulates the conduct of armed conflict – rather than the law of genocide applies to this case, Israel is effectively trying to use the existence of an armed conflict as a defense to a genocide claim.¹¹⁴ This argument is unavailing. As discussed below, genocides often happen during armed conflicts. Where this occurs, the legal frameworks for both IHL and genocide apply. On its own, then, the fact that IHL applies – or that an armed conflict is underway – does not mean the law of genocide is inapplicable or that acts of genocide are not occurring.

Second, Israel argues that it cannot possibly have genocidal intent because it has issued warnings to civilians and created safe zones.¹¹⁵ Indeed, under IHL, belligerents must adopt precautions and otherwise minimize harm to civilians during armed conflict.¹¹⁶ While Israel has taken some precautionary measures in Gaza – which some commentators have praised¹¹⁷ – these measures largely violate international law, undercutting any suggestion that they demonstrate a lack of genocidal intent. For example, a number of experts and investigators have found Israel’s warnings to civilians – including warning systems Israel presented as part of its defense at oral argument in January – to be insufficient, confusing, contradictory, and unlawful.¹¹⁸ In some instances, IDF evacuation orders have even constituted international crimes. For example, various UN officials and bodies have described Israel’s October 2023 order directing 1.1 million Palestinians to evacuate the northern half of Gaza as an act of forcible transfer and collective punishment constituting both war crimes and crimes against humanity.¹¹⁹

On top of all this, Israel’s treatment of those fleeing or remaining in evacuated areas violates IHL. Many civilians, who have left their homes in response to Israel's warnings, have been killed by the IDF as they fled¹²⁰ – likely violating the IHL prohibition on deliberately targeting civilians.¹²¹ Others who have chosen not to evacuate have also been targeted. A recent article from Israeli newspaper Haaretz describes how the IDF has created extermination zones in evacuated areas where shoot-to-kill policies are applied to anyone in the vicinity, particularly adult males.¹²² These practices violate the cardinal IHL rule that a civilian’s refusal to comply with precautionary measures, like evacuation orders, does not make that person targetable or relieve belligerents of their IHL obligations to protect civilians.¹²³ Israel’s policy of classifying all those who do not leave their homes in the north of Gaza as potential “accomplice[s] in a terrorist organization” is yet another violation of these rules and has been described by Amnesty International as a potential war crime.¹²⁴

As for the IDF’s designated safe zones, from the start of Israel’s onslaught, so-called safe zones in Gaza have been anything but safe¹²⁵ – constituting yet another violation of the very IHL rules on precautionary measures that Israel claims absolve it of liability in this case. Rafah, one of the last “safe zones” in Gaza, has not been safe for months (if ever it was), and is subject to regular Israeli military attacks and threats of invasion.¹²⁶ Israel has also failed to ensure that its so-called safe areas provide Palestinians with suitable accommodations and other conditions required by IHL.¹²⁷

In fact, it would seem Israel’s designated safe zones have less to do with civilian protection and more to do with facilitating the slaughter of Palestinians and the expulsion of anyone who remains into the Sinai Desert – a forced displacement plan Israel has long harboured for the Palestinians of Gaza¹²⁸ that it has explicitly revisited since 7 October.¹²⁹ As UN Special Rapporteur on the Human Rights of Displaced Persons, Paula Gaviria Bentacur, has observed, “‘[a]s evacuation orders ... continue to expand and civilians are subjected to relentless attacks on a daily basis, the only logical conclusion is that Israel’s military operation in Gaza aims to deport the majority of the civilian population en masse.’”¹³⁰

Third, Israel argues that the massive scale of civilian harm and destruction it has caused in Gaza is, in fact, the result of Hamas’ purported practice of human shielding.¹³¹ Again, this argument does little to undercut South Africa’s genocide claim and, instead, serves as a thinly veiled excuse for Israeli illegality. Human shielding is defined as “the intentional use of.. one or more human beings usually civilians, or captured members of the adversary’s forces …  placed between the adversary and themselves in a way meant to deter an attack against the forces using the human shields.”¹³² The practice is prohibited under IHL.¹³³ While there are different types of human shields,¹³⁴ to violate IHL, the shielding party must intentionally use civilians or adversary forces as shields.¹³⁵

While Israel has long claimed that Hamas uses civilians as human shields,¹³⁶ Hamas has consistently denied Israel’s shielding allegations¹³⁷ (independent UN fact-finding missions and human rights organizations have also challenged Israel’s claims).¹³⁸ Instead, Hamas has argued that it is forced to fight in densely populated areas because Gaza has been sealed off by Israel, and has accused Israel of being the one that deliberately uses Palestinians as shields.¹³⁹

Even if Hamas is intentionally using civilians to protect its fighters and military activities, the use of shielding by one side in an armed conflict does not relieve the other side of its obligations to protect civilians.¹⁴⁰ Instead of abiding by this rule, Israel has historically and systematically violated it.¹⁴¹ Describing the effects of this practice since 7 October, current UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Francesca Albanese, has observed that “Israel has … transformed Gaza into a ‘world without civilians’ in which ‘everything from taking shelter in hospitals to fleeing for safety is declared a form of human shield.’”¹⁴²

A recent investigative report provides further evidence that Israel’s human shielding claims are merely a cynical effort to mask its deliberate targeting of civilians. According to the report, Israel has used various artificial intelligence programmes in Gaza since 7 October to target purported (and typically unverified) Hamas fighters in their homes often when their families are present. As the report describes, this targeting protocol represents “a first option” because Israeli officials believe it is “easier to locate the individuals in their private houses.”¹⁴³ Rather than resulting from Hamas’s so-called “human shielding,” the high civilian death count during the first few weeks of the war in Gaza was largely the result of these intentional Israeli practices.¹⁴⁴

Finally, Israel tries to undercut the existence of genocidal intent by arguing that it is providing adequate humanitarian aid to the Gaza Strip, but that the aid is being looted or commandeered by Hamas.¹⁴⁵ This claim has no basis in fact. Both before and since Israel’s oral argument at the ICJ, international aid organizations have clearly stated that Israel is blocking much needed aid from reaching Gaza.¹⁴⁶ In its 28 March order, the ICJ seems to agree with that view.¹⁴⁷ There has also been little in the way of accusations or allegations from aid organizations supporting Israel’s claim that Hamas is systematically hoarding aid entering the besieged enclave.¹⁴⁸

The Relationship Between the Genocide Convention and IHL

The law of genocide and International Humanitarian Law (IHL) are separate and distinct areas of law. As the Genocide Convention makes clear, genocide can happen in times of war or peace.¹⁴⁹ By contrast, IHL only applies during international and non-international armed conflicts.¹⁵⁰ IHL regulates the conduct of these armed hostilities and contains various rules relating to the protection of civilians.¹⁵¹ Because genocide is not limited to times of war, it is not formally part of IHL and, instead, is considered part of the human rights cannon.¹⁵² All that being said, since genocides often occur in the context of war, IHL and the law of genocide are intertwined in various ways.¹⁵³ This section explores the interplay between these two areas of law.

First, where genocide occurs during wartime, the existence of IHL violations can be probative of the genocide claim. In the Croatia case, the ICJ held that, even though genocide and IHL are separate areas of law aimed at different objectives, “the rules of international humanitarian law might be relevant in order to decide whether the acts alleged by the parties constitute genocide within the meaning of Article II of the Convention.”¹⁵⁴ While it is unclear whether the Court was referring to genocidal acts and intent, it seems both may be covered.¹⁵⁵ More broadly, given the ICJ’s reliance on decisions from certain international criminal tribunals – which were focused on identifying IHL violations– in the Bosnia and Croatia cases,¹⁵⁶ the Court likely places, at least, some weight on the existence of such violations to establish both elements of genocide.

Second, where a state’s initial use of force in an armed conflict is motivated by genocidal intent, the IHL analysis is impacted. This knits together the prohibition on genocide, the law on the use of force or jus ad bellum (which regulates the initial use of force by a state) and IHL. Arguably where a state’s initial use of force is unlawful, the entire armed conflict is unlawful in a way that cannot be undone by subsequent IHL compliance.¹⁵⁷

Under international law, there are only two valid grounds for a state to use force against another state: where the right to self-defense is triggered under Article 51 of the UN Charter or where force is authorized by the UN Security Council pursuant to Chapter VII of the Charter.¹⁵⁸ Neither of these grounds for using force can be used to commit genocide. If a state otherwise has a valid right to self-defense but engages that right in order to commit genocide, that use of force is invalid.¹⁵⁹ A Security Council resolution that authorizes a use of force that amounts to genocide is almost certainly invalid as well.¹⁶⁰ In both circumstances, because the justification for the initial use of force is invalid, all subsequent uses of force during the armed conflict – which are regulated by and subject to IHL – are also presumptively invalid and illegal, even if they comply with IHL.

Third, where genocide occurs during an armed conflict, then IHL and genocide prohibitions can overlap or fill gaps. For example, the IHL prohibition against collective punishment can potentially overlap with genocide. Under IHL, belligerent forces are prohibited from engaging in collective punishment, which means they cannot punish a group or person(s) for acts committed by others.¹⁶¹ That prohibition can overlap with the crime of genocide where belligerents are motivated to kill members of a group because other group members committed certain crimes and their intent, in doing so, is to destroy the group in whole or in part because of its ethnicity, nationality, religion, or race.¹⁶²

In terms of gap-filling, IHL covers a much broader list of prohibitions than genocide, and, in that way, fills many gaps left by the law of genocide during armed conflict. But genocide can also, in some circumstances, fill gaps left by IHL. For example, under IHL, it is generally lawful to kill a combatant on the battlefield.¹⁶³ If combatants are killed primarily out of a desire to destroy the national, ethnical, racial, or religious group they are part of, that is unlikely to be prohibited by IHL. It could, however, violate the Genocide Convention.¹⁶⁴

Finally, where genocide occurs during an armed conflict, IHL is often used to undercut genocide claims. States have routinely argued that allegations of genocide arising from armed conflict are inappropriate and invalid because IHL – not genocide – is the appropriate framework.¹⁶⁵ As mentioned earlier, during oral argument before the ICJ, Israel insisted that IHL – not genocide – is the relevant body of law for analyzing its actions in Gaza. It also argued that its campaign in Gaza complied with IHL.¹⁶⁶ Although the Court’s 26 January order did not address these arguments, in previous genocide cases, the Court has determined that IHL, not genocide, was the proper lens for evaluating atrocities committed during the relevant armed conflict.¹⁶⁷

Why does IHL provide an escape hatch for a state facing genocide accusations? Unlike genocide, IHL legitimizes and legalizes mass violence undertaken during armed conflict.¹⁶⁸ Those who negotiated the Genocide Convention were well aware of this and ensured that IHL’s legitimizing function would be bolstered rather than altered by the treaty. Indeed, as Dirk Moses has shown, the convention’s drafters made certain that genocide would not reach acts of military necessity – defined as measures necessary to accomplish a legitimate military purpose and the foundational justification for violence in war¹⁶⁹ – even where those acts destroy a group in whole or in part.¹⁷⁰ In doing so, the convention’s drafters virtually guaranteed that those who perpetrate genocide during armed conflict would use the paradigm of IHL and military necessity to undercut the genocide allegations against them.¹⁷¹

Identifying Israel’s IHL Violations in Gaza: an Enduring Scholarly Double Standard

Since 7 October – and despite its claims to the contrary – Israel has committed numerous violations of IHL. For some scholars, identifying these violations is simply a matter of applying the law to the facts. For others, the exercise is more ideologically fraught. Indeed, for some legal scholars particularly in the West – and especially those based in the United States – accusing Israel of violating IHL is a bridge too far. This section begins with a brief discussion of Israel’s likely IHL violations in Gaza before discussing the problematic nature of the U.S. scholarly debate on this issue, which is the main focus of this section.

Under IHL, an attack committed during an armed conflict is lawful only where (1) it is a military necessity; (2) all deliberate targeting is exclusively directed at military objectives, not civilians or civilian objects; (3) any anticipated collateral damage to civilians or civilian objects is proportionate to the expected military advantage of the attack; and (4) any and all suffering, injury, or destruction inflicted against civilians is necessary to achieving the conflict’s legitimate military purpose.¹⁷²

Since 7 October, Israel has committed so many discrete violations of these norms that they cannot all be listed, let alone unpacked, in the space of this short essay. The categories of IHL violations committed by Israel can, however, be identified, if not fully analyzed here. They include but are not limited to the deliberate targeting of civilians¹⁷³; the indiscriminate targeting of civilians¹⁷⁴; collective punishment¹⁷⁵; the use of starvation as a tool of war¹⁷⁶; the refusal to allow adequate humanitarian aid into Gaza¹⁷⁷; the forced displacement of Palestinian civilians, including to areas outside of Gaza¹⁷⁸; pillage¹⁷⁹; the abuse, torture, and humiliation of Palestinian prisoners, many of whom have been civilians¹⁸⁰; and the widescale deliberate destruction of civilian objects,¹⁸¹ from schools and universities¹⁸² to religious institutions¹⁸³ to cultural heritage sites,¹⁸⁴ and civilian housing.¹⁸⁵ Objects and persons given some of the highest protections under IHL – like hospitals and medical personnel – have been deliberately targeted by Israel at a massive scale.¹⁸⁶ Though the extent of destruction and death in Gaza is unprecedented, these results are otherwise unsurprising. They are a byproduct of Israel’s long-standing efforts to re-write IHL,¹⁸⁷ which effectively abandon notions of distinction and proportionality and create a blueprint for total war.¹⁸⁸

As might be expected, Israel has raised various argument to defend against its purported IHL violations, including invoking the human shielding argument discussed earlier, claiming civilian objects have become valid military targets because of Hamas’s actions,¹⁸⁹ and arguing that any resulting “collateral damage” satisfies the IHL requirement of proportionately.¹⁹⁰ Though this short essay cannot analyze these defenses in detail, it is worth reiterating that the human shielding argument is weak for the reasons stated earlier, and noting that Israel’s other arguments are undercut by its distorted interpretations of IHL, which others have documented.¹⁹¹

What is even more notable about Israel's IHL violations since 7 October, however, is how Western-based legal scholars – particularly in the United States – have tended to discuss (or ignore) these issues, especially as compared to IHL violations committed by armed Palestinian groups. This dynamic has received some attention¹⁹² but not as much as it should, in my view.

Since 7 October, many US-based scholars – though certainly not all – have been quick to definitively characterize actions taken by Hamas and other Palestinian fighters on 7 October as war crimes, crimes against humanity, and even genocide.¹⁹³ By contrast, many scholars have been more reticent to opine – at least, in a negative way – on whether Israel has violated IHL,¹⁹⁴ providing legal analysis largely bereft of relevant facts or implicitly supporting Israel’s actions instead.¹⁹⁵ This trend has developed despite evidence strongly suggestive of Israel's many IHL violations, including a wealth of first-hand video and other visual evidence and testimony from Palestinians demonstrating the extent of killing and destruction in Gaza; statements made by Israeli officials about the intended outcome of the IDF's actions in Gaza¹⁹⁶; and Israel’s well-established, persistent pattern and policy of shrinking the definition of a Palestinian civilian,¹⁹⁷ its intentional and long-standing use of disproportionate force, and its enduring policy of deliberately targeting and failing to distinguish civilians and civilian infrastructure from military targets.¹⁹⁸

Admittedly, as Israel’s attacks on Gaza have progressed, the scholarly hesitancy to name Israel’s IHL violations has somewhat dissipated. This is particularly true for Israel’s most egregious actions, like its refusal to allow meaningful humanitarian aid into Gaza or its use of starvation as a tool of war. Even then, these violations are perhaps the “safest” for scholars to criticize – partly because of the overwhelming and virtually unassailable evidence that Israel is blocking aid and starving Palestinians, as confirmed by various UN officials, bodies, and NGOs.¹⁹⁹

Why did it take so long for even these actions to be condemned by scholars in the United States? And why do some academics still refuse to classify any of Israel’s actions as violating IHL on, at least, a preliminary basis? Some will argue that the reason has to do with the indeterminacy of IHL rules and the contextual nature of the legal analysis – on this view, provisional conclusions about IHL violations are inappropriate because it is hard to peer into the mind of a soldier or commander to determine whether they deliberately targeted civilians or to accurately analyze whether proportionality was assessed reasonably at the time of attack.²⁰⁰ Tellingly, these concerns do not seem to trouble these very same scholars when it comes to assessing the actions of Palestinian armed groups.²⁰¹

Some of the scholarly reticence may be a result of the intense repression and censorship – coming both from public and private actors – against those speaking against Israel.²⁰² Given the high price many have paid for criticizing the Israeli government, some scholars may hesitate to accuse Israel of IHL violations in the absence of unassailable evidence. But, as noted earlier, there is substantial evidence suggesting that Israel has systematically violated countless IHL rules in Gaza, even if the Israeli government has challenged the validity of the evidence and presented alternative narratives.

For others, faith in the legality of Israel’s actions is genuinely held – they are true believers who accept Israel’s claimed fidelity to international law.

In my view, the decisive explanatory factor here is the double standard many US-based legal scholars explicitly or implicitly hold when it comes to events in Israel-Palestine. Because of this double standard, the evidentiary requirements are relatively high – if not unattainable – when it comes to demonstrating Israel’s IHL violations and quite low when it comes to violations committed by Palestinian armed groups, like Hamas.

There are various reasons for this double standard. They include Israel’s efforts to appear law-abiding even while reshaping and manipulating the laws of war to suit its needs. This process has involved leveraging a vast cadre of government lawyers to legalize and legitimize Israel’s actions by exploiting the malleability of IHL, as well as the law on the use of force.²⁰³ In line with the long-standing imbrication between Israeli universities and the Israeli military,²⁰⁴ prominent academics within Israel have also used their scholarship to advance dubious legal positions that favour Israeli interests.²⁰⁵

The scholarly double standard has been influenced even further by Israel’s largely successful effort – particularly within elite U.S. circles – to depoliticized and dehistoricize the Palestinian cause and depict Palestinians as blood thirsty terrorists on a messianic crusade to destroy the Israeli state and the Jewish people.²⁰⁶ This narrative has been fuelled even further by the U.S. War on Terror, which has invested in and been legitimated by the manufactured image of irrational, evil terrorists on a mission to destroy the freedom and liberty of the West.²⁰⁷ In a November 2023 legal memorandum about its military activities in Gaza, Israel’s Ministry of Foreign Affairs leveraged and doubled-down on these narratives. In particular, it exhorted analysts to “reject any moral equivalence between those defending against terrorism and those perpetrating it; between a State whose commitment to law underpins its military operations and a terrorist group which openly defies the law.”²⁰⁸ This distorted, racist narrative resonates with historical approaches to international law – emerging from and aimed at legitimizing Anglo and European settler-colonialism – that depicted non-Europeans as largely uncivilized barbarians flouting international law and otherwise unentitled to its protections.²⁰⁹

Against the backdrop of a “law-abiding” Israel and a “lawless” and “barbaric” Palestinian armed force, US-based scholars risk nothing in definitively concluding that Hamas and other Palestinian fighters committed untold crimes on 7 October – even though Israel has actively prevented international human rights NGOs from thoroughly investigating the events of 7 October²¹⁰ and despite the continuing lack of clarity about the scale of atrocities committed by Hamas and other Palestinian fighters that day. There is, for example, evidence that the “Hannibal Directive” – an IDF policy of firing on IDF soldiers to prevent them from being taken hostage – was implemented by some IDF soldiers against Israeli civilians on 7 October.²¹¹ There are also questions as to which Palestinian groups committed what crimes,²¹² and evidence that at least some publicly disseminated videos and photos of the events of 7 October “spread false news, doctored content, or repeated unverified information.”²¹³

The fact that Palestinians – whether Hamas or otherwise – were involved in the events of 7 October has overcome these evidentiary gaps, for many US-based scholars, and lent credence to Israel’s claims about the crimes committed that day, the most egregious of which have been debunked.²¹⁴ In embracing this double standard and treating one side as always already guilty, US-based scholars reinforce the worst legacies of international law – including the old, discredited civilized/uncivilized binary – while also sanctioning policies that have been used by one of the world’s strongest military powers to subjugate, repress, and eliminate a vulnerable, colonized people.

The Palestinian Right of Resistance and the Israeli Obligation to End Its Colonization and Occupation of Palestine

The Palestinian people have a right to self-determination under international law, as recognized by various UN bodies, including the General Assembly and the ICJ.²¹⁵ That right to self-determination is a right to “external” self-determination, which entitles the Palestinians to their own state, if they desire one.²¹⁶ The right to self-determination is “one of the essential principles of contemporary international law” and triggers erga omnes obligations for all states²¹⁷ – meaning that all states have a duty to the entire international community to respect and promote the right and cannot derogate from it.²¹⁸

As a people whose right to self-determination has been recognized by the UN and its predecessor, the League of Nations,²¹⁹ but whose right remains unrealized because of Israeli colonization and occupation, the Palestinian people in the Occupied Palestinian Territories (OPT)²²⁰ have a right to resist under international law, including through the use of armed force.²²¹ On several occasions, the General Assembly has recognized this right of the Palestinians to resist Israeli domination through armed struggle.²²² As a general matter, the right to resist is limited by the requirements of IHL, which means, amongst other things, that civilians and civilian objects cannot be deliberately targeted.²²³

Whether Israel has a right to self-defense under Article 51 of the UN Charter vis a vis the OPT – which includes the Gaza Strip, the West Bank, and East Jerusalem – is hotly contested. Notably, as an official legal matter, Israel does not base its actions in Gaza on the right to self-defense, but rather on the existence of a continuing and ongoing armed conflict with Hamas and other armed Palestinian groups.²²⁴ Nevertheless, many Israeli officials and allies of Israel couch Israel’s actions – including after 7 October – in the self-defense right.²²⁵ There are good reasons to believe, however, that Israel enjoys no such right. As the ICJ has held, because it is the occupying power, Israel does not have an Article 51 right to self-defense in the OPT.²²⁶ Many agree with this view – including the current UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Francesca Albanese.²²⁷ While some argue that the ICJ's holding is ambiguous,²²⁸ the right approach is to treat Israel as having no self-defense right against groups in the OPT for several reasons: (1) as the occupying power, Israel controls the OPT²²⁹ and is already in the position of an aggressor²³⁰; and (2) while there is universal agreement that the Article 51 right of self-defense applies against states, its application against non-state actors like Hamas is quite disputed.²³¹

Even if Israel has no right of self-defense, that does not mean it is without defensive options, though those options are more limited compared to the Article 51 right.²³² As an occupying power, Israel can engage in policing actions in the territories it occupies and can use lethal and even military force, as long as this is a last resort and circumscribed by concerns for the civilian population.²³³

If Israel does have a right to self-defense in the OPT, that right can only be exercised in pursuit of a legitimate military aim.²³⁴ Any act of self-defense must also be both necessary to achieving that aim and proportionate.²³⁵ There is much debate as to what proportionality means in the context of self-defense.²³⁶ According to some experts, the correct view is that proportionality requires a balancing between the probable benefits of the defensive action and the actual harm caused.²³⁷ On this view, assuming that Israel has a right to self-defense in Gaza, it is almost certainly executing it unlawfully, given the illegality of Israel’s stated aim to “destroy Hamas”²³⁸ or, assuming that aim is legitimate, the grossly disproportionate scale of actual civilian harm relative to defensive benefit.²³⁹

There is also another factor that further complicates Israel’s right to engage in forcible action in the OPT, whether in the form of policing actions or pursuant to Article 51. This brings us back to the Palestinian people’s right to self-determination. As reflected in multiple General Assembly resolutions, states have a duty not to engage in forcible actions that will deprive a people of their right to self-determination.²⁴⁰ As applied to the OPT, where Palestinians engage in lawful armed resistance against the Israeli government in pursuit of their self-determination right, Israel may not respond with military force – whether under Article 51 or otherwise. Instead, Israel’s duty under international law is to bring an end to its colonial project and to support the realization of the Palestinian people’s right to self-determination, once and for all.²⁴¹

International Law, Politics, and Palestine

For over seventy-five years, Palestinians have attempted to harness international law to realize their right to self-determination, to return to their homes in historic Palestine, as well as to challenge the matrix of occupation, colonial domination, and apartheid that has characterized life under Israeli rule. These legal efforts have yielded a decidedly mixed result, leading to moments of success but making little headway for the cause of Palestinian liberation.²⁴² Instead, power politics has had the most impact, constituting the centrifugal force shaping Palestinian life and death, and leading many to believe that international law is meaningless.²⁴³

In my view, international law is not meaningless. Indeed, abandoning the law both cedes ground crucial to the Palestinian cause and serves the interests of the Israeli and U.S. governments. Despite its limitations and disappointments, law is central to the project of Palestinian liberation. As Palestinian scholar and activist, Noura Erakat, has argued, so long as it serves an emancipatory political project, law has powerful redemptive value for Palestine and its people.²⁴⁴

By contrast, both Israel and the United States want politics and only politics to settle the Palestine question. The reason for this is clear: while power politics favours Israel’s interests, the substantive law is more favourable to the Palestinians. Appreciating this, the United States has promoted the primacy of politics over international law again and again, most recently to scuttle various legally binding Security Council resolutions demanding an immediate ceasefire in Gaza²⁴⁵ and to thwart Palestine’s bid for full membership in the UN.²⁴⁶ Because of the Palestine issue, Israel has also repeatedly attempted to discredit both international law and the UN itself, as reflected in countless recent statements by Israeli officials.²⁴⁷

For those who want to see a free Palestine, this is the moment to grab onto law and use it to further justice and liberation. Current and past proceedings before the ICJ and the International Criminal Court (ICC) exemplify how international law can be and has been harnessed in the service of Palestinian freedom. Instead of dwelling exclusively on legal outcomes or questions of enforcement, these proceedings should be approached – both on their own and in relationship to one another – in terms of their utility in supporting political advocacy for Palestine. They should also be understood in terms of their broader significance to the Global South and its long-standing political project to remake international law. As these cases remind us, Palestine is the emblematic project of subaltern emancipation central to redeeming international law for all Global South countries. In the words of Palestinian legal scholar Rabea Eghbariah, Palestine “is the manifestation of the colonial condition upheld in the twenty-first century.”²⁴⁸ I discuss these issues, in turn, below.

The ICJ and the ICC: Current and Past Cases on Palestine

In addition to South Africa’s case against Israel, there are two other relevant matters before the ICJ involving Palestine.²⁴⁹ The first matter is a contentious case brought on 1 March 2024 by Nicaragua against Germany under the Genocide Convention for Germany’s failure to prevent and complicity in Israel’s genocide in Gaza; in that case, Nicaragua also raises separate claims against Germany for supporting and failing to prevent Israel’s IHL violations in the Occupied Palestinian Territories (OPT), amongst other legal transgressions.²⁵⁰

The second ICJ matter is an advisory opinion request,²⁵¹ which was submitted to the Court by the General Assembly in January 2023, asking the ICJ for its views on the legal consequences of Israel’s denial of the Palestinian right to self-determination, prolonged occupation of the OPT, as well as annexation of certain parts of the territory, amongst other things.²⁵² In late February 2024, the Court heard oral presentations from over fifty states and three international organizations on the advisory opinion request.²⁵³ The vast majority of these presentations argued that Israel’s occupation was illegal.²⁵⁴

In addition to the three ICJ cases on Palestine, the ICC has had an open investigation into international crimes committed in the OPT since March 2021.²⁵⁵

Over a decade before any of these matters were instituted, the ICJ ruled on another advisory opinion request, again from the General Assembly, about the legality of the Wall built by Israel in the occupied West Bank and East Jerusalem – a wall that Israel has justified on security grounds but that effectively amounts to a land and water grab.²⁵⁶ In its very first decision on the Question of Palestine, the Court held that the Wall’s route was illegal and violated the Palestinian people’s right to self-determination, as well as various other human rights.²⁵⁷

Despite challenges with enforcement and/or compliance, the ICJ’s 2004 advisory opinion, as well as the provisional measures orders in the South Africa case, have been effectively used to further pro-Palestine political advocacy. They provide templates for leveraging other pending cases and investigations on Palestine for political ends. Amongst other things, these efforts have and should include using proceedings – at the highest level of the international judicial system – to influence the progress of other proceedings within that system to advance the Palestinian cause.

Even though Israel did not comply with the ICJ’s 2004 advisory opinion,²⁵⁸ the opinion inspired one of the most important Palestinian political projects in generations – the Boycott, Divestment, and Sanctions Movement (BDS). BDS was launched by Palestinian civil society on the one year anniversary of the ICJ’s decision, in July 2005, with the aim of pushing Israel to abide by its international legal obligations through punitive sanctions and boycotts – including but not limited to the obligations articulated in the Wall opinion.²⁵⁹ Since its founding, BDS has achieved various victories, including prompting churches, governments, and banks to divest from BDS-targeted companies, inspiring cultural and academic boycotts of Israel, and contributing to a massive expansion in on-campus support for Palestine across universities in the Western world and beyond.²⁶⁰ Amongst the most important and enduring successes of BDS is the framework it provides for regular people – particularly in countries whose governments support Israel – to learn about and become involved in Palestine advocacy.

As for the provisional measure orders in the South Africa case, while Israel is bound to comply with those orders,²⁶¹ it continues to violate them, as of this writing. Nevertheless, like the ICJ’s 2004 opinion, advocates are using these orders to support broader political and legal campaigns to end the genocide in Palestine. For example, in March 2024, Canada announced it would continue its freeze on all new arms exports to Israel, which it began doing on 8 January,²⁶² after substantial advocacy leveraging the ICJ’s 26 January order.²⁶³ That order lent added force to calls for a global arms embargo against Israel as well,²⁶⁴ with UN experts issuing one such call in February 2024.²⁶⁵

On the legal front, the 26 January order prompted Nicaragua’s ICJ case against Germany.²⁶⁶ In the United States, the Center for Constitutional Rights – a prominent legal advocacy organization – leveraged the order to secure a decision from a U.S. federal court that confirmed Israel was plausibly committing genocide in Gaza and called on the Biden administration to “examine the results of [its] unflagging support of the military siege against the Palestinians.”²⁶⁷ The 26 January order also prompted the filing of cases against the Canadian²⁶⁸ and Danish²⁶⁹ governments to stop issuing export permits for the sale of military weapons and technologies to Israel. Critically, both provisional measures decisions have arguably helped sustain momentum behind large scale global protests in support of the Palestinian people, even in the face of incredible repression.²⁷⁰

Amongst its most important lessons, the ICJ’s provisional measures decisions demonstrate how the pursuit of judicial relief in one case can exert political influence in other international legal proceedings involving Palestine. In particular, the ICJ’s orders have increased political pressure on the ICC’s moribund investigation into the situation in Palestine. The ICC’s long-standing desire to avoid any involvement in Israel-Palestine is well-established, stretching back over a decade and a half to when Palestine first tried to join the Rome Statute – the ICC’s founding treaty – in 2009.²⁷¹ Palestine was finally permitted to join the ICC in 2015 – over the strong objections of the United States and Israel, neither of which are parties to the Rome Statute.²⁷² Despite opening a preliminary examination into the “Situation in the State of Palestine” in 2015,²⁷³ the ICC Prosecutor did not institute a full investigation until March 2021.²⁷⁴ Even after doing so, the Prosecutor’s Office continued to move at a snail’s pace until 7 October,²⁷⁵ when it took certain steps with respect to the investigation that have been mostly in Israel’s favour, so far.²⁷⁶

Since 7 October – and especially since the filing of South Africa’s case – the Prosecutor has faced intense and unprecedented pressure to hold Israeli officials accountable for their crimes. Over the last few months, multiple Global South states, including South Africa,²⁷⁷ as well as various non-governmental organizations²⁷⁸ have submitted petitions to the ICC demanding an investigation into Israel’s actions in Gaza, including for genocide. Since the ICJ’s provisional measures orders, that pressure has only increased. Both the ICJ’s pending advisory opinion request on the legality of Israel’s occupation – which is likely to find that Israel’s occupation and annexation practices in the OPT are illegal²⁷⁹ – and Nicaragua’s case against Germany are likely to further increase demands on the ICC to take action, if they have not done so already.

Anything is possible in geopolitics, but, in this jurisprudential environment, it is hard to see how the Prosecutor can avoid issuing arrest warrants against Israeli officials for crimes committed in the OPT, including in Gaza since 7 October. These indictments may fall short of what should be charged and may be against low level or marginal officials only, though recent reports give reason to be more hopeful.²⁸⁰ Still, any arrest warrants would represent an unprecedented development in addressing Israeli impunity. Even more importantly, they would provide yet another tool for public and private actors, activists, and advocates to use in the service of Palestinian liberation.

The same thing holds for Nicaragua’s case, as well as the ICJ’s pending advisory opinion request – both can and should be used to serve political advocacy on Palestine, not just in terms of increasing pressure on the ICC, but also more broadly. The advisory opinion in particular is designed to support political efforts to pressure actors – particularly third-party states facilitating Israel’s occupation – to work to end the occupation and support the Palestinian people’s right to self-determination.²⁸¹ Depending upon its ultimate outcome and content, the advisory opinion request may even bolster South Africa’s genocide case before the ICJ.

Reclaiming International Law for the Global South

The ICJ and ICC proceedings on Palestine are not only tools in a political project aimed at emancipating the Palestinians. They are also part and parcel of a broader political effort to reclaim international law for all the people of the Global South.

For hundreds of years, the Global South was largely excluded from shaping international law’s contours and existed, instead, as the object of a legal regime that largely served the interests of European imperial powers.²⁸² After decolonization swept the globe following World War II, Global South countries assumed their rightful place as participants in and subjects of international law. Over the last few decades, these countries have worked collectively to reshape and influence various international law doctrines – from the right of self-determination to the closely-related concept of state sovereignty – in order to promote the liberatory interests of the Global South.²⁸³

Palestine-related proceedings before the ICJ and ICC continue these traditions. They represent some of the most visible recent efforts by Global South countries to use international law to protect, bolster, and defend the rights of peoples who have historically been dominated by more powerful states. These efforts have included other proceedings initiated at the ICJ over the last few years, which have harnessed international law to achieve a semblance of justice and liberation for the Third World.²⁸⁴

While one piece of this greater project, Palestine is central to the subaltern reclamation of international law. Because Palestine is not just about Palestine – it is about all repressed, dispossessed people. Many on opposite sides of the political spectrum speak of Palestine as an “exception.” Israel describes Palestine as an exception to justify its illegal conduct against the Palestinian people.²⁸⁵ Supporters of Palestine describe it as an “exception” too, but for the very different purpose of underscoring liberal and progressive hypocrisy towards the Palestinian cause.²⁸⁶ Certainly Palestine’s transformation into a settler-colony is exceptional, arriving just as most of the world was throwing off the chains of colonialism. But Palestine is also anything but exceptional. It is the canary in the coal mine of repression and violence against marginalized and vulnerable communities and peoples globally.

Palestine is the laboratory in which Israel develops weapons and other technologies that it sells to governments worldwide to repress and surveil their own populations.²⁸⁷ Palestine is where Israel generates the policing expertise it markets to train the police and security forces of other countries in violent tactics of oppression.²⁸⁸ For the sake of repressing Palestinians, Israel has spent decades promoting racist, dehumanizing approaches to terrorism that have substantially influenced the U.S. War on Terror, both globally and domestically.²⁸⁹ For the sake of repressing Palestinians, Israel has promoted a distorted notion of antisemitism – equating it with criticism of Israel – that has been weaponized to quash free speech, protest, and activism across the globe.²⁹⁰ For the sake of repressing Palestinians, Israel has promoted interpretations of IHL that substantially erode protections for civilians and civilian objects that other states, including the United States, can use and have used in their own destructive military campaigns.²⁹¹

Reclaiming international law in the context of Palestine means achieving accountability for a people whose vulnerability has been exploited to make other people – especially in the Global South – susceptible to state violence and rights erosions. This is why the proceedings on Palestine at the ICJ and ICC are meaningful for the entire Global South. So, while some might complain about the “disproportionate” focus on Palestine²⁹² – there certainly are other terrible tragedies happening in the world – there are good reasons why Palestine is at the heart of the freedom dreams of so many. As Guyana’s Ambassador to the United Nations, Carolyn Rodrigues-Birkett, so eloquently put it, “[a]t its core, the Palestinian question is [the] question of justice.”²⁹³

Acknowledgement

Thank you to Dirk Moses, Omar McDoom, and Aslı Bâli for helpful revisions and comments. This essay is dedicated to my students. You know who you are.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Maryam Jamshidi

Maryam Jamshidi is an Associate Professor of Law at the University of Colorado Law School.

Notes

1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Application Instituting Proceedings, 29 December 2023 [hereinafter South Africa Application].

2 E.g. Rabea Eghbariah, “The Harvard Law Review Refused to Run This Piece about Genocide in Gaza,” The Nation, 21 November 2023, https://www.thenation.com/article/archive/harvard-law-review-gaza-israel-genocide/; Raz Segal, “A Textbook Case of Genocide,” Jewish Currents, 13 October 2023, https://jewishcurrents.org/a-textbook-case-of-genocide.

3 E.g. Omer Bartov, “What I Believe as a Historian of Genocide,” The New York Times, 10 November 2023, https://www.nytimes.com/2023/11/10/opinion/israel-gaza-genocide-war.html; “Public Statement: Scholars Warn of Potential Genocide in Gaza,” TWAILR, 17 October 2023, https://twailr.com/public-statement-scholars-warn-of-potential-genocide-in-gaza/.

This article has been republished with minor changes. These changes do not impact the academic content of the article.

4 E.g. Noa Tishby, “Is Israel Guilty of Genocide in Gaza? Why the Accusation at the UN Is Unfounded,” USA Today, 16 January 2024, https://www.usatoday.com/story/opinion/2024/01/16/israel-genocide-charges-gaza-united-nations-unfounded/72202529007/.

5 Mohammed Nijim, “Genocide in Palestine: Gaza as a Case Study,” International Journal of Human Rights 27, no. 1 (2022): 166.

6 Omar Barghouti, “Never Again! Europe’s Collusion in Israel’s Slow Genocide,” Miftah, 22 January 2008, http://www.miftah.org/PrinterF.cfm?DocId=15978.

7 Richard Falk, “Slouching Towards a Palestinian Holocaust”, Z-Network, 5 July 2007, https://znetwork.org/znetarticle/slouching-toward-a-palestinian-holocaust-by-richard-falk/. Although it is unclear how Falk was defining genocide, it seems fair to assume that – as an international law expert – he had the legal definition of genocide in mind.

8 Ilan Pappé, “Israel’s Incremental Genocide in the Gaza Ghetto,” Electronic Intifada, 13 July 2014, https://electronicintifada.net/content/israels-incremental-genocide-gaza-ghetto/13562; Ilan Pappé, “Genocide in Gaza,” Electronic Intifada, 2 September 2006, https://electronicintifada.net/content/genocide-gaza/6397. Pappé did not explicitly define genocide in either of his posts, suggesting he may have relied on a more colloquial definition of the term.

9 Nijim, “Genocide in Palestine,” 169–71; Center for Constitutional Rights, “The Genocide of the Palestinian People: An International Law and Human Rights Perspective,” 25 August 2016, https://ccrjustice.org/genocide-palestinian-people-international-law-and-human-rights-perspective#_ftn20.

10 Nijim, “Genocide in Palestine,” 169–71; Martin Shaw and Omer Bartov, “The Question of Genocide in Palestine, 1948: An Exchange Between Martin Shaw and Omer Bartov,” Journal of Genocide Research 12, nos. 3–4 (2010): 244–46.

11 Zena Al Tahhan, “The Naksa: How Israel Occupied the Whole of Palestine in 1967,” Al Jazeera English, 4 June 2018, https://www.aljazeera.com/features/2018/6/4/the-naksa-how-israel-occupied-the-whole-of-palestine-in-1967.

12 Human Rights Watch, “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution,” April 2021, 10–18, https://www.hrw.org/sites/default/files/media_2021/04/israel_palestine0421_web_0.pdf.

13 See, e.g., Nur Masalha, “The 1956–57 Occupation of the Gaza Strip: Israeli Proposals to Resettle the Palestinian Refugees,” British Journal of Middle Eastern Studies 23, no. 1 (1996): 55–68 (discussing various Israeli policies explored during Israel's first, short-lived occupation of the Gaza Strip in 1956–57 that aimed to expel and transfer Palestinian refugees in Gaza to other countries).

14 UNICEF, “Gaza Strip: The Humanitarian Impact of 15 Years of the Blockade,” June 2022, https://www.unicef.org/mena/media/18041/file/Factsheet_Gaza_Blockade_2022.pdf.

15 “Israel Used Calorie Count to Limit Gaza Food During Blockade,” The Guardian, 17 October 2012, https://www.theguardian.com/world/2012/oct/17/israeli-military-calorie-limit-gaza; UN, “Gaza in 2020: A Liveable Place?,” August 2012, https://www.unrwa.org/userfiles/file/publications/gaza/Gaza%20in%202020.pdf.

16 UN General Assembly, “Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Michael Lynk,” A/HRC/49/87, 12 August 2022, para 45, https://www.un.org/unispal/wp-content/uploads/2022/03/A.HRC_.49.87_120822.pdf.

17 Nur Masalha, Expulsion of the Palestinians: The Concept of ‘Transfer’ in Zionist Political Thought, 1882–1948 (Washington DC: Institute for Palestine Studies, 1992), 1–2.

18 Virginia Tilley, “Preface,” in Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories, ed. Virginia Tilley (London: Pluto Press, 2012), xiv.

19 Patrick Wolfe, “Structure and Event: Settler Colonialism, Time, and the Question of Genocide,” in Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History, ed. A. Dirk Moses (New York: Berghahn Books, 2010), 103.

20 Ibid., 102, 121–23.

21 Rashid Khalidi, “Israel: ‘A Failed Settler-Colonial Project,’” Institute for Palestine Studies, 10 May 2018, https://www.palestine-studies.org/en/node/232079.

22 Ibid.

23 South Africa Application, paras. 2, 4, 30, 32–39, 68; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Verbatim Record, p. 17 paras. 3–5, p. 19 para. 3, p. 21 para. 3, p. 49 paras. 6–7, 11 January 2024 [hereinafter 11 Jan. South Africa v. Israel Verbatim Record].

24 Leora Bilsky and Rachel Klagsbrun, “The Return of Cultural Genocide?,” European Journal of International Law 29, no. 2 (2018): 375.

25 South Africa Application, pp. 30–67.

26 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (South Africa v. Israel), Order, 26 January 2024 [hereinafter 26 Jan. ICJ Order].

27 South Africa Application, para. 144(1).

28 26 Jan. ICJ Order, para. 86.

29 UN Human Rights Council, “Anatomy of A Genocide: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Francesca Albanese,” A/HRC/55/73, paras. 55–92, 25 March 2024, https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session55/advance-versions/a-hrc-55-73-auv.pdf.

30 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Declaration of Judge Abdulqawi Ahmed Yusuf, paras. 5–7, 13, 28 March 2024 [hereinafter Yusuf Declaration].

31 E.g. “UN Aid Chief Calls for Immediate Ceasefire,” Middle East Eye, 22 March 2024, https://www.middleeasteye.net/live-blog/live-blog-update/un-aid-chief-calls-immediate-ceasefire; “WHO Chief Calls for Immediate Ceasefire in Gaza, Aid Delivery,” Al Jazeera English, 21 March 2024, https://www.youtube.com/watch?v=Ra8jJYnTIUs; Michael Fakhri, UN Special Rapporteur for the Right to Food, @MichaelFakhri, Tweet (4:45 pm, 19 March 2024), https://twitter.com/MichaelFakhri/status/1770219987728494963; UNICEF, “Statement by Adele Khodr, UNICEF Regional Director for the Middle East and North Africa,” 3 March 2024, https://www.unicef.org/press-releases/statement-adele-khodr-unicef-regional-director-middle-east-and-north-africa-0.

32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (South Africa v. Israel), Request for the Modification of the Order of 26 January 2024 Indicating Provisional Measures, 28 March 2024 [hereinafter 28 Mar. ICJ Order].

33 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (South Africa v. Israel), Urgent Request and Application for the Indication of Additional Provisional Measures and the Modification of the Court’s Prior Provisional Measures Decisions Pursuant to Article 41 of the Statute of the International Court of Justice and Article 75 and 76 of the Rules of Court of the International Court of Justice, paras. 1–2, 6–14, 6 March 2024. South Africa made its second provisional order request on 12 February. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Urgent Request for Additional Measures Under Article 75(1) of the Rules of Court of the International Court of Justice, 12 February 2024. In response to that second request, the Court reiterated Israel’s obligation to implement the 26 January provisional measures order, but did not order any additional measures. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Decision of the Court on South Africa’s Request for Additional Provisional Measures, 16 February 2024.

34 28 Mar. ICJ Order, para. 45.

35 The ICJ concluded that it could not order South Africa’s requested ceasefire – which was phrased as requiring “all participants in the conflict,” both Hamas and Israel, to cease their military activities – because the Court does not have jurisdiction over non-state groups. Ibid., para. 44.

36 Ibid., paras. 36–38.

37 Yusuf Declaration, paras. 10, 11, 13; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Declaration of President Nawaf Salam, paras. 10–11, 28 March 2024.

38 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Declaration of Judge Hilary Charlesworth, paras. 5–8, 28 March 2024; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Joint Declaration of Judges Hanqin Xue, Leonardo Nemer Caldeira Brant, Juan Manuel Gómez Robledo, and Dire Tladi, paras. 1, 4, 7–8, 28 March 2024.

39 26 Jan. ICJ Order, para. 30.

40 E.g., Marko Milanovic, “ICJ Indicates Provisional Measures in South Africa v. Israel,” EJIL: Talk!, 26 January 2024, https://www.ejiltalk.org/icj-indicates-provisional-measures-in-south-africa-v-israel/.

41 Ibid.

42 As described below, Article II of the Genocide Convention defines genocide. Article III(a) prohibits direct acts of genocide. UN Convention on the Prevention and Punishment of the Crime of Genocide, Art. III(a) (1948). While South Africa has accused Israel of various violations of the Genocide Convention – including the failure to prevent and punish the direct and public incitement of genocide – the analysis in this section focuses on South Africa’s claim that Israel has directly engaged in the genocidal acts articulated in Article II. South Africa Application, para. 1.

43 Both Bosnia v. Serbia and Croatia v. Serbia involved purported acts of genocide committed during the civil war in the former Yugoslavia.

44 Genocide Convention, Art. II.

45 A. Dirk Moses, The Problems of Genocide: Permanent Security and the Language of Transgression (Cambridge: Cambridge University Press, 2021), 224–25.

46 Notably, in the Croatia case, a dissenting judge criticized the majority opinion for a “reading of the categories of acts of genocide under the Convention against Genocide … [that] is as strict as it possibly can be.” Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Dissenting Opinion of Judge Cançado Trindade, para. 508, 3 February 2015 [hereinafter Cançado Trindade Dissenting Opinion].

47 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v. Herzegovina v. Serbia and Montenegro), Judgment, para. 344, 26 February 2007 [hereinafter Bosnia v. Serbia]. Even though the convention’s drafting history explicitly excludes cultural genocide, legal experts have criticized the ICJ’s treatment of cultural genocide as cautious and conservative. Theodor Meron, “Breaking Developments in International Law: A Conversation on the ICJ’s Opinion in Bosnia and Herzegovina v. Serbia and Montenegro,” Proceedings of the Annual Meeting (American Society of International Law 101 (28–31 March 2007): 220.

48 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, para. 157, 3 February 2015 [hereinafter Croatia v. Serbia]. Some scholars have challenged some of the sources the Croatia court used in its assessment – specifically a 1996 report issued by the International Law Comission. William Schabas, Genocide in International Law, 2nd. ed. (Cambridge: Cambridge University Press 2009), 182. In its report, the commission concluded that to “cause serious bodily or mental harm to a group” under the convention the “bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.” Ibid. According to the foremost expert in genocide law – William Schabas – this interpretation goes beyond the “plain words” of the convention and is not supported by its negotiating history. Ibid.

49 Croatia v. Serbia, para. 166. See Schabas, Genocide in International Law, 2nd ed., 198 (noting that to prove a state adopted “measures intended to prevent births within the group” proof is not required that those measures succeeded).

50 Genocide Convention, Art. II.

51 Moses, The Problems of Genocide, 223–24, 229–30.

52 Bosnia v. Serbia, paras. 186–87.

53 Ibid., para. 187.

54 Ibid.

55 Ibid.

56 David Scheffer, “The World Court’s Fractured Ruling on Genocide,” Genocide Studies and Prevention: An International Journal 2, no.2 (2007): 126. The two other avenues for establishing genocidal intent under Bosnia are: (1) demonstrating intent on the part of the individual perpetrators of genocide (though government responsibility would need to be separately established in such cases); and (2) establishing the existence of a “concerted” state policy of genocide. Ibid.

57 Bosnia v. Serbia, para. 373; Croatia v. Serbia, para. 148.

58 Scheffer, “The World Court’s Fractured Ruling,” 128.

59 This is often the favoured route because it is typically hard to find direct evidence of genocidal intent, such as genocidal statements or state policy clearly articulating an intention to commit genocide.

60 Bosnia v. Serbia, para. 209.

61 Ibid.

62 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, p. 12, 28 May 1951.

63 Scheffer, “The World Court’s Fractured Ruling,” 125.

64 Ibid., 128.

65 Dissenting Opinion of Judge Cançado Trindade, paras. 497–99, 496.

66 Ibid., paras. 145–46.

67 Croatia v. Serbia, para. 143; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Dissenting Opinion of Vice-President Al-Khasawneh, paras. 43–47, 26 February 2007 [hereinafter Al-Khasawneh Dissenting Opinion].

68 Bosnia v. Serbia, paras. 371–76; Al-Khasawneh Dissenting Opinion, paras. 40–46; Scheffer, “The World Court’s Fractured Ruling,” 126–27.

69 11 Jan. South Africa v. Israel Verbatim Record, p. 41 para. 37.

70 In the Bosnia case, the applicant pointed to statements by the Serbian government, as evidence of genocidal intent, some of which were disregarded by the Court as “political” statements. Bosnia v. Serbia, paras. 377–78.

71 See Al-Khasawneh Dissenting Opinion, paras. 56–61 for a discussion of this jurisprudence.

72 Nick Wadhams, “Israeli Leaders Say ‘Now Is Time for War’ and Vow to Wipe Hamas ‘Off the Face of the Earth,’” Time, 11 October 2023, https://time.com/6322897/israel-leaders-vow-destroy-hamas-gaza-war/.

73 Prosecutor v. Jelesic, Case No. IT-95-10-A, Judgment, para 49, 5 July 2001 [hereinafter Jelesic Judgment]. Admittedly, there is some debate as to whether genocide requires both genocidal intent and genocidal motive. John Quigley, The Genocide Convention: An International Law Analysis (London: Routledge, 2016), 120–23. In support of the view that motive is not required – the view I believe is correct – the Genocide Convention’s drafting history demonstrates that the negotiators explicitly excluded a proposed list of motives from the treaty’s text. Ibid., 120–21.

74 11 Jan. South Africa v. Israel Verbatim Record, p. 52 para. 14. See Jelesic Judgment, para. 49 (“The personal motive of the perpetrator of the crime of genocide may be … to obtain personal economic benefits, or political advantage or some form of power … [this] does not preclude the perpetrator from also having the specific intent to commit genocide.”).

75 As mentioned below, the ICJ is particularly inclined to rely on UN reports, including evidentiary reports, as reflected in its provisional measures orders in the South Africa case. E.g., 28 Mar. ICJ Order, paras. 20–21, 31–32; 26 Jan. ICJ Order, paras. 46–50.

76 11 Jan. South Africa v. Israel Verbatim Record, p. 71 para. 31.

77 E.g. Yara Harawi, “Why Are Israeli Soldiers Sharing Snuff Videos from Their Genocide in Gaza,” Al Jazeera English, 24 January 2024, https://www.aljazeera.com/opinions/2024/1/24/why-are-israeli-soldiers-sharing-snuff-videos-from-their-genocide-in-gaza.

78 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Verbatim Record, 12 January 2024, p. 12 para 49 [hereinafter 12 Jan. South Africa v. Israel Verbatim Record].

79 One of these Israeli practices – of which there are many – involves ranking almost every single Palestinian in Gaza according to their likely membership in Hamas or other armed Palestinian groups. Yuval Abraham, “‘Lavender’: The AI Machine Directing Israel’s Bombing Spree in Gaza,” +972 Magazine, 3 April 2024, https://www.972mag.com/lavender-ai-israeli-army-gaza/. In effect, all Palestinians are potential fighters who could be targeted based on their ranked probability of membership in an armed group. Another practice that undercuts Israel’s claims regarding the precision and specificity of its war is the extreme permissiveness of the IDF’s actual targeting practices. As described by one anonymous Israeli intelligence source, “[e]ven if officially every target is connected to Hamas, when the [targeting] policy is so permissive, it loses all meaning.” Ibid.

80 Scheffer, “The World Court’s Fractured Ruling,” 126.

81 UN Human Rights Council, “Anatomy of a Genocide,” para 47.

82 E.g., ibid, paras. 93–95; UN, “Gaza Strip: States Are Obligated to Prevent Crimes Against Humanity and Genocide, UN Committee on the Elimination of Racial Discrimination,” 21 December 2023, https://www.un.org/unispal/document/gaza-strip-states-are-obliged-to-prevent-crimes-against-humanity-and-genocide-un-committee-stresses-dec21-2023/; Office of the UN High Commissioner for Human Rights, “Gaza: UN Experts Call on International Community to Prevent Genocide Against the Palestinian People,” 16 November 2023, https://www.unrwa.org/resources/reports/unrwa-situation-report-93-situation-gaza-strip-and-west-bank-including-east-Jerusalem. Various NGOs have also provided detailed analysis of the genocide claims against Israel even before South Africa filed its case at the ICJ. Palestinian Human Rights Organizations Council, “PHROC Calls on the State of Palestine and Third States to Intervene Taking Concrete Measures and Legal Action to Prevent Genocide in Gaza,” 14 November 2023, https://www.alhaq.org/cached_uploads/download/2023/11/15/briefing-note-genocide-third-state-responsibility-14-november-2023-1700041879.pdf; Center for Constitutional Rights, “Israel’s Unfolding Crime of Genocide of the Palestinian People & U.S. Failure to Prevent and Complicity in Genocide,” 18 October 2023, https://ccrjustice.org/israel-s-unfolding-crime-genocide-palestinian-people-us-failure-prevent-and-complicity-genocide.

83 E.g., 26 Jan. ICJ Order, para. 53; Application of the Convention on the Prevention and Punishment of Genocide (Gambia v. Myanmar), Request for the Indication of Provisional Measures, Order of 23 January 2020, paras. 54–56, 71–72.

84 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Joint Declaration of Intervention of Canada, the Kingdom of Denmark, the French Republic, the Federal Republic of Germany, the Kingdom of the Netherlands, and the United Kingdom of Great Britain and Northern Ireland, paras. 23–25, 56–62, 13 November 2023 [hereinafter Gambia Joint Intervention].

85 The Court has arguably rejected the notion that genocide can be established where there are a limited number of victims and where there is otherwise no direct proof of genocidal intent. Croatia v. Serbia, paras. 137–39. In fact, the only time the Court has found genocide – in an incident involving the execution of 7000 Bosnian Muslim men and boys in the town of Srebrenica over the course of a few days – there was a very large number of persons killed during a short period. Ibid., paras. 278–97.

86 See, e.g., UN, “Press Conference by Secretary-General Philippe Lazzarini at the Global Refugee Forum,” 13 December 2023, https://press.un.org/en/2023/sgsm22095.doc.htm (“Humanitarian veterans who have served in war zones and disasters around the world – people who have seen everything – tell me they have seen nothing like what they see today in Gaza.”).

87 Julia Fankel, “Israel’s Military Campaign in Gaza Seen as Among the Most Destructive in History, Experts Say,” AP News, 21 December 2023, https://apnews.com/article/israel-gaza-bombs-destruction-death-toll-scope-419488c511f83c85baea22458472a796#.

88 UN Office for the Coordination of Humanitarian Affairs, “Hostilities in the Gaza Strip and Israel: Flash Update #153,” 15 April 2024, https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-153?_gl=1*1xqfl8d*_ga*MTE4ODM5OTI4NS4xNzEzMjk1MjU1*_ga_E60ZNX2F68*MTcxMzMwODYzNC4yLjAuMTcxMzMwODYzNC42MC4wLjA.

89 Vivian Yee, Iyad Abuheweila, Abu Bakr Bashir, and Ameera Harouda, “Gaza’s Shadow Death Toll: Bodies Buried Beneath the Rubble,” The New York Times, 23 March 2024, https://www.nytimes.com/2024/03/23/world/middleeast/gaza-missing-bodies-deaths.html.

90 Oxfam, “Daily Death Rate in Gaza Higher Than Any Other Major 21st Century Conflict,” 11 January 2024, https://www.oxfam.org/en/press-releases/daily-death-rate-gaza-higher-any-other-major-21st-century-conflict-oxfam.

91 Save the Children, “Over 2% of Gaza’s Child Population Killed or Injured in Six Months of War,” 4 April 2024, https://www.savethechildren.net/news/over-2-gaza-s-child-population-killed-or-injured-six-months-war#:~:text=Children%20in%20Gaza%20have%20been,in%20the%207%20October%20attacks.

92 Human Rights Watch, “Gaza: Israel’s Imposed Starvation Deadly for Children,” 9 April 2024, https://www.hrw.org/news/2024/04/09/gaza-israels-imposed-starvation-deadly-children#:~:text=Gaza's%20Health%20Ministry%20reported%20as,and%20disease%20of%2027%20children. For more on this issue see Melanie S. Tanielian, “The Silent Slow Killer of Famine: Humanitarian Management and Permanent Security,” Journal of Genocide Research, 5 February 2024, https://doi.org/10.1080/14623528.2024.2310866; Jess Whyte, “A 'Tragic Humanitarian Crisis': Israel’s Weaponization of Starvation and the Question of Intent,” Journal of Genocide Research, 17 April 2024, https://doi.org/10.1080/14623528.2024.2339637.

93 28 Mar. ICJ Order, para. 33.

94 The speed and extent of widespread death and destruction in Gaza arguably distinguishes it from the Bosnia and Croatia cases, which were based on events targeting discrete sectors of the population during a decade-long civil war in the former Yugoslavia. John Quigley, “Legal Standard for Genocide Intent: An Uphill Climb for Israel in Gaza Suit,” EJIL: Talk!, 14 March 2024, https://www.ejiltalk.org/legal-standard-for-genocide-intent-an-uphill-climb-for-israel-in-gaza-suit/.

95 Bosnia v. Serbia, para 292.

96 The Office of the UN High Commissioner for Human Rights, “UN Expert Warns of New Instance of Mass Ethnic Cleansing of Palestinians, Calls for Immediate Ceasefire,” 14 October 2023, https://www.ohchr.org/en/press-releases/2023/10/un-expert-warns-new-instance-mass-ethnic-cleansing-palestinians-calls.

97 Bosnia v. Serbia, para. 190.

98 Croatia v. Serbia, paras. 161–62.

99 Nadia Hardman, “Most of Gaza’s Population Remains Displaced and in Harm’s Way,” Human Rights Watch, 20 December 2023, https://www.hrw.org/news/2023/12/20/most-gazas-population-remains-displaced-and-harms-way#:~:text=Two%20months%20later%2C%20almost%201.9,a%20prewar%20population%20of%20280%2C000.

100 UNRWA, “UNRWA Situation Report #93 on the Situation in the Gaza Strip and the West Bank, Including East Jerusalem,” 22 March 2024, https://www.unrwa.org/resources/reports/unrwa-situation-report-93-situation-gaza-strip-and-west-bank-including-east-Jerusalem.

101 See below for a discussion of these practices.

102 In the Croatia case, Croatia attempted to establish genocidal intent by placing Serbia’s genocide of Croatians within the broader historical context of Serbian expansionist ambitions. Croatia v. Serbia, paras. 419–20. The Court was not convinced by the argument. Ibid., para. 422.

103 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application Instituting Proceedings and Request for Provisional Measures, para. 2, 11 November 2019.

104 Gambia Joint Intervention.

105 Ibid., paras. 39–43.

106 Ibid., para. 51.

107 Ibid.

108 Ibid., paras. 63–74.

109 12 Jan. South Africa v. Israel Verbatim Record.

110 E.g., ibid, p. 23–24 paras. 6–9.

111 E.g., ibid, p. 31 para. 37, pp. 45–46 paras. 44–47.

112 E.g., ibid, p. 46 para. 49, p. 49–50 para. 4.

113 E.g., ibid, pp. 46–48 paras. 50–71, pp. 50–52 paras. 8–13.

114 E.g. ibid, pp. 23–24 paras. 6–9.

115 E.g. ibid, p. 31 para. 37, pp. 45–46 paras. 44–47.

116 Protocol Additional to the Geneva Conventions of 12 August 1949, And Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, Arts 57–58 [hereinafter Additional Protocol I]. As discussed below, IHL governs two kinds of conflicts: international armed conflicts and non-international armed conflicts. Some argue the conflict in Gaza is an international armed conflict because Gaza was occupied by Israel before 7 October, while others insist that Gaza was not occupied before 7 October and that the conflict, therefore, constitutes a non-international armed conflict. Michael Schmitt, “Israel-Hamas 2023 Symposium – the Legal Context of Operations Al-Aqsa Flood and Swords of Iron,” Articles of War, 10 October 2023, https://lieber.westpoint.edu/legal-context-operations-al-aqsa-flood-swords-of-iron/. Even though similar rules apply to both types of conflict, because I believe Gaza was occupied before 7 October – as described below – I approach the current conflict as an international armed conflict. In this essay, I rely on the IHL rules applicable to those types of conflicts.

117 John Spencer, “Israel Implemented More Measures to Prevent Civilian Casualties than Any Other Nation in History,” Newsweek, 31 January 2024, https://www.newsweek.com/israel-implemented-more-measures-prevent-civilian-casualties-any-other-nation-history-opinion-1865613.

118 E.g. Stephanie Hegarty & Ahmed Nour, “Gaza Evacuation Warnings from IDF Contain Many Errors, BBC Finds,” BBC, 5 April 2024, https://www.bbc.com/news/world-middle-east-68687749; Larry Lewis, “Israeli Civilian Harm Mitigation in Gaza: Gold Standard or Fool’s Gold,” Just Security, 12 March 2024, https://www.justsecurity.org/93105/israeli-civilian-harm-mitigation-in-gaza-gold-standard-or-fools-gold/.

119 The Office of the UN High Commissioner for Human Rights, “UN Human Rights Has ‘Grave Fears’ About Toll on Civilians in Gaza,” 17 October 2023, https://www.ohchr.org/en/press-briefing-notes/2023/10/un-human-rights-has-grave-fears-about-toll-civilians-gaza; The Office of the UN High Commissioner for Human Rights, “Israel Must Rescind Evacuation Order for Northern Gaza and Comply with International Law: UN Expert,” 13 October 2023, https://www.ohchr.org/en/press-releases/2023/10/israel-must-rescind-evacuation-order-northern-gaza-and-comply-international.

120 UN Human Rights Council, “Anatomy of a Genocide,” para. 81. See “Dozens Killed While Fleeing Gaza Homes as Israel Conducts Ground Raids,” Al Jazeera English, 13 October 2023, https://web.archive.org/web/20231018034732/https://www.aljazeera.com/news/2023/10/13/dozens-killed-while-fleeing-gaza-homes-as-israel-conducts-ground-raids. (“[I]t is clear that the prohibition on directing attacks against civilians precludes firing on civilians who are fleeing from besieged areas.”)

121 See below for a discussion of this IHL rule.

122 Yaniv Kubovich, “Israel Created ‘Kill Zones’ in Gaza. Anyone Who Crosses into Them Is Shot,” Haaretz, 31 March 2024, https://www.haaretz.com/israel-news/2024-03-31/ty-article-magazine/.premium/israel-created-kill-zones-in-gaza-anyone-who-crosses-into-them-is-shot/0000018e-946c-d4de-afee-f46da9ee0000.

123 Chatham House Briefing, “Sieges, the Law and Protecting Civilians,” 27 June 2019, https://www.chathamhouse.org/2019/06/sieges-law-and-protecting-civilians-0/iii-rules-international-humanitarian-law-particularly.

124 Amnesty International, “Israel/OPT: Israeli Army Threats Ordering Residents of Northern Gaza to Leave May Amount to War Crimes,” 25 October 2023, https://www.amnesty.org/en/latest/news/2023/10/israel-opt-israeli-army-threats-ordering-residents-of-northern-gaza-to-leave-may-amount-to-war-crimes/. See Chatham House Briefing, “Sieges, the Law and Protecting Civilians” (“Hostilities cannot be conducted on the presumption that anyone who chose not to be evacuated is a fighter”).

125 UN Human Rights Council, “Anatomy of a Genocide,” paras. 79–80.

126 Ibid., paras. 83–84; “Netanyahu: Date Set for Rafah Attack, which US Opposes,” VOA News, 8 April 2024, https://www.voanews.com/a/netanyahu-date-set-for-rafah-attack-which-us-opposes/7561624.html; Mat Nashed, “What’s Behind Israel’s Threat to Attack Rafah?,” Al Jazeera English, 16 February 2024, https://www.aljazeera.com/features/2024/2/16/whats-behind-israels-threat-to-attack-rafah.

127 Mais Qandeel, “The Forcible Transfer of Civilians in Gaza: Conditions, Necessity, Legality,” Opinio Juris, 21 December 2023, https://opiniojuris.org/2023/12/21/the-forcible-transfer-of-civilians-in-gaza-conditions-necessity-and-legality/.

128 Masalha, “The 1956–57 Occupation of the Gaza Strip,” 61–63.

129 Yuval Abraham, “Expel All Palestinians from Gaza, Recommends Israeli Gov’t Ministry,” +972 Magazine, 30 October 2023, https://www.972mag.com/intelligence-ministry-gaza-population-transfer/.

130 The Office of the UN High Commissioner for Human Rights, “Israel Working to Expel Civilian Population of Gaza, UN Expert Warns,” 22 December 2023, https://www.ohchr.org/en/press-releases/2023/12/israel-working-expel-civilian-population-gaza-un-expert-warns.

131 12 Jan. South Africa v. Israel Verbatim Record, p. 46 paras. 49, pp. 49–50 para 4.

132 Amnon Rubinstein and Yaniv Roznai, “Human Shields in Modern Armed Conflicts: the Need for a Proportionate Proportionality,” Stanford Law and Policy Review 22, no. 1 (2011): 94.

133 Additional Protocol I, Art. 51(7).

134 Frederica Marsi, “What is a ‘Human Shield’ and Why Is Israel Using the Term in Gaza?,” Al Jazeera English, 13 November 2023, https://www.aljazeera.com/news/2023/11/13/what-is-a-human-shield-and-why-is-israel-using-the-term-in-gaza.

135 Rubinstein and Roznai, “Human Shields in Modern Armed Conflicts,” 101.

136 UN Human Rights Council, “Anatomy of a Genocide,” para. 59.

137 Marsi, “What Is a ‘Human Shield’ and Why Is Israel Using the Term in Gaza?”

138 UN Human Rights Council, “Anatomy of a Genocide,” para. 59.

139 Rubinstein and Roznai, “Human Shields in Modern Armed Conflicts,” 98.

140 Additional Protocol I, Art. 51(8).

141 UN Human Rights Council, “Anatomy of a Genocide,” paras. 58–59, 61.

142 Ibid., para. 62. See Elyse Semerdjian, “A World Without Civilians,” Journal of Genocide Research,24 January 2024, https://doi.org/10.1080/14623528.2024.2306714

143 Abraham, “‘Lavender’: The AI Machine Directing Israel’s Bombing Spree in Gaza.”

144 Ibid.

145 12 Jan. South Africa v. Israel Verbatim Record, pp. 46–49 paras. 50–77

146 E.g. Jeremy Konyndyk, “Gaza’s Famine Is Underway,” Just Security, 28 March 2024, https://www.justsecurity.org/93841/gazas-famine-is-underway/; Human Rights Watch, “Israel: Starvation Used as Weapon of War in Gaza,” 18 December 2023, https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza.

147 28 Mar. ICJ Order, paras. 33–34.

148 While UNRWA – the UN agency exclusively dedicated to assisting Palestinian refugees – accused people affiliated with the Gaza Health Ministry of seizing fuel and other supplies from an UNRWA site in the early days of Israel’s onslaught, it quickly retracted those accusations. Ben Samuels, “UNRWA Walks Back Statement Accusing Hamas of Stealing Humanitarian Aid from Gaza Compound,” Haaretz, 16 October 2023, https://www.haaretz.com/middle-east-news/palestinians/2023-10-16/ty-article/unrwa-nixes-statement-accusing-hamas-of-stealing-humanitarian-fuel-from-gaza-compound/0000018b-38fa-d0ac-a39f-b9fa2f1c0000. Israel has, nevertheless, continued to spin the initial accusation – including during its oral presentation to the ICJ – as evidence that Hamas loots humanitarian aid. 12 Jan. South Africa v. Israel Verbatim Record, p. 47 para. 62.

149 Genocide Convention, Art. 1.

150 International armed conflicts are conflicts between two or more states. Non-international armed conflicts are conflicts between a state and non-state actors or between non-state actors.

151 Craig Jones, The War Lawyers: The United States, Israel, and Juridical Warfare (Oxford: Oxford University Press, 2020), 26–27.

152 International Committee of the Red Cross, International Humanitarian Law and Human Rights, April 2011, https://www.redcross.org/content/dam/redcross/atg/PDF_s/Family___Holocaust_Tracing/IHL_HumanRights.pdf.

153 Jeffrey Bachman, “Four Schools of Thought on the Relationship Between War and Genocide,” Journal of Genocide Research 22, no. 4 (2020): 480–81.

154 Croatia v. Serbia, para. 153.

155 Later in its decision, the ICJ noted that “casualties and damages far in excess of military necessity” are relevant to showing a “pattern of conduct” from which genocide could be established. Croatia v. Serbia, para. 413. The Court also left unanswered whether an IHL-compliant act could violate the Genocide Convention if the necessary intent was present. Ibid., paras. 473–74.

156 Ines Gillich, “Between Light and Shadow: The International Law against Genocide in the International Court of Justice’s Judgment in Croatia v. Serbia,” Pace International Law Review 28, no. 1 (2016): 138.

157 Adil Haque, “An Unlawful War,” AJIL Unbound 116 (2022): 155.

158 As Adil Haque argues, a state has an Article 51 right to act in self-defense in response to an armed aggression where the Security Council has not acted under Chapter VII to prevent the aggression and up to and until the Security Council acts to respond to the armed aggression under Chapter VII. Adil Haque, “The United Nations’ Charter at 75: Between Force and Self-Defense – Part II,” Just Security, 24 June 2020, https://www.justsecurity.org/70987/the-united-nations-charter-at-75-between-force-and-self-defense-part-two/.

159 Under the law on the use of force, self-defense can only be exercised in pursuit of a legitimate aim – of which genocide is clearly not one. See Schabas, Genocide in International Law, 2d. ed., 395 (“[N]o State or individual can ever be permitted to justify genocide in the name of self-defense [under Article 51]”).

160 While disagreement remains, there is increasing support for the view that Security Council resolutions violating peremptory norms, like the prohibition against genocide, are presumptively invalid. Felix Herbert, “Disobeying the Security Council or a Disobedient Security Council? The Effect of Jus Cogens on Security Council Resolutions in Recent Debates of the ILC and in the Views of States,” EJIL: Talk!, 12 August 2022, https://www.ejiltalk.org/disobeying-the-security-council-or-a-disobedient-security-council-the-effects-of-jus-cogens-on-security-council-resolutions-in-recent-debates-of-the-ilc-and-in-the-views-of-states/.

161 IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War of 12 August 1949, Art. 33 [hereinafter Fourth Geneva Convention]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977, Art. 4.

162 See UN Human Rights Council, “Prevention of Genocide: Report of the Secretary-General,” A/HRC/41/24, para. 3, 8 October 2019, https://documents.un.org/doc/undoc/gen/g19/299/76/pdf/g1929976.pdf?token=3QwFcphOMQVOXFfv3y&fe=true, (noting that the crime of genocide, crimes against humanity and war crimes “tend to occur concurrently in the same situation rather than as isolated events … ”).

163 There are arguably some limitations to this permissive rule. For example, where a solider can be captured rather than killed then capture is arguably preferrable. Ryan Goodman, “The Power to Kill or Capture Enemy Combatants,” European Journal of International Law 24, no. 3 (2013): 819–20.

164 See Bachman, “Four Schools of Thought,” 490–91, 93 (arguing that military personnel engaged in defensive, as opposed to aggressive violence, should be considered potential victims of genocide). While some argue that only “innocents” or “civilians” can be victims of genocide, nothing in the Genocide Convention limits its application in this way. Ibid., 486–87.

165 E.g., Bosnia v. Serbia, paras. 249, 318, 353; Croatia v. Serbia, para. 207.

166 12 Jan. South Africa v. Israel Verbatim Record, p. 31 paras. 36–37.

167 E.g., Bosnia v. Serbia, paras. 277, 319.

168 Maryam Jamshidi, “How Law Can Make War Inhumane and Banal,” Völkerrechtsblog, 23 June 2021, https://voelkerrechtsblog.org/how-law-can-make-war-inhumane-and-banal/.

169 Marco Sassòli et al., How Does Law Protect in War? (Geneva: International Committee of the Red Cross, 2014), https://casebook.icrc.org/a_to_z/glossary/military-necessity.

170 Moses, The Problems of Genocide, 223–24. The Genocide Convention also bolstered the utility of IHL for states by diminishing the normative and moral significance of IHL violations. As Dirk Moses argues, in framing genocide as the worst of all crimes, the Genocide Convention rendered other forms of mass violence committed during war, like war crimes, lesser violations. Ibid., 228.

171 Cançado Trindade Dissenting Opinion, para. 144.

172 Jones, The War Lawyers, 29.

173 See Additional Protocol I, Art. 51(2)(prohibiting deliberate attacks against civilians). E.g. The Office of the UN High Commissioner for Human Rights, “UN Experts Condemn ‘Flour Massacre,’ Urge Israel to End Campaign of Starvation in Gaza,” 5 March 2024, https://www.ohchr.org/en/press-releases/2024/03/un-experts-condemn-flour-massacre-urge-israel-end-campaign-starvation-gaza.

174 See Additional Protocol I, Art. 51 (4)-(5)(prohibiting indiscriminate attacks against civilians). E.g., Amnesty International, “Damning Evidence of War Crimes as Israeli Attacks Wipe Out Entire Families in Gaza,” 20 October 2023, https://www.amnesty.org/en/latest/news/2023/10/damning-evidence-of-war-crimes-as-israeli-attacks-wipe-out-entire-families-in-gaza/.

175 See Fourth Geneva Convention, Art. 33 (prohibiting collective punishment). E.g., “UN Chief Reiterates Gaza Ceasefire Call, Condemns ‘Collective Punishment’ of Palestinians,” UN News, 15 January 2024, https://news.un.org/en/story/2024/01/1145537.

176 See Additional Protocol I, Art. 34(1) (prohibiting starvation of civilians as a method of warfare). E.g., Human Rights Watch, “Israel: Starvation Used as a Weapon of War in Gaza,” 18 December 2023, https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza.

177 See Fourth Geneva Convention, Art. 55 (obligating occupying powers to provide food and medical aid); Additional Protocol I, Art. 69(1)(obligating occupying powers to provide “clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship”). E.g., Oxfam International, “Israel Government Continues to Block Aid Response Despite ICJ Genocide Court Ruling, Says Oxfam,” 17 March 2024, https://www.oxfam.org/en/press-releases/israel-government-continues-block-aid-response-despite-icj-genocide-court-ruling.

178 See Fourth Geneva Convention, Art. 49 (prohibiting occupying powers from engaging in individual or mass forcible transfers, as well as deportations of occupied populations); Additional Protocol I, Art. 85(4)(a)(classifying an occupying power’s deportation or transfer of an occupied population within or outside the territory as a grave breach of the Protocol). E.g., Office of the UN High Commissioner for Human Rights, “Israel Working to Expel Civilian Population of Gaza, UN Expert Warns,” 22 December 2023, https://www.ohchr.org/en/press-releases/2023/12/israel-working-expel-civilian-population-gaza-un-expert-warns.

179 See Fourth Geneva Convention, Art. 33 (prohibiting pillage). E.g., Oren Ziv, “Rugs, Cosmetics, Motorbikes: Israeli Soldiers Are Looting Gaza Homes En Masse,” +972 Magazine, 20 February 2024, https://www.972mag.com/israeli-soldiers-looting-gaza/.

180 See Fourth Geneva Convention, Art. 32 (prohibiting torture and the causing of physical suffering); Additional Protocol I, Art. 75(2)(prohibiting torture and humiliating and degrading treatment). E.g. Simon Speakman Cordall and Veronica Pedrosa, “Not Just the UNRWA Report: Countless Accounts of Israeli Torture in Gaza,” Al Jazeera English, 13 March 2024, https://www.aljazeera.com/news/2024/3/13/after-the-unrwa-report-more-accounts-of-israels-torture-in-gaza.

181 See Additional Protocol I, Art 52(1)(prohibiting deliberate attacks against civilian objects).

182 Chandni Desai, “The War in Gaza Is Wiping Out Palestine’s Education and Knowledge System,” The Conversation, 8 February 2024, https://theconversation.com/the-war-in-gaza-is-wiping-out-palestines-education-and-knowledge-systems-222055#:~:text=In%20the%20past%20four%20months,231%20teachers%20and%2094%20professors.

183 See Additional Protocol I, Art 53 (prohibiting “any act of hostility” against places of worship). E.g. “Israel Has Destroyed 1,000 of Gaza’s 12,000 Mosques since 7 October, Officials Say,” The New Arab, 21 January 2024, https://www.newarab.com/news/israel-has-destroyed-1000-mosques-gaza-7-october.

184 See Additional Protocol I, Art 53 (prohibiting “any act of hostility” against historic monuments or works of art). E.g. Indlieb Farazi Saber, “A ‘Cultural Genocide’: Which of Gaza’s Heritage Sites Have Been Destroyed,” Al Jazeera English, 14 January 2024, https://www.aljazeera.com/news/2024/1/14/a-cultural-genocide-which-of-gazas-heritage-sites-have-been-destroyed.

185 E.g. Office of the UN High Commissioner for Human Rights, “Gaza: Destroying Civilian Housing and Infrastructure Is an International Crime, Warns UN Expert,” 8 November 2023, https://www.ohchr.org/en/press-releases/2023/11/gaza-destroying-civilian-housing-and-infrastructure-international-crime.

186 See Fourth Geneva Convention, Art. 18–19 (prohibiting all direct targeting against hospitals unless they are used to commit acts “harmful to the enemy”); Additional Protocol 1, Art. 13, 15 (requiring that civilian medical personnel be respected and protected unless they commit acts “harmful to the enemy”). E.g. Mary Turfah, “Israel Has Created a Medical Apocalypse in Gaza,” The Nation, 20 February 2024, https://www.thenation.com/article/world/gaza-medical-crisis/#:~:text=Six%20hundred%20and%20twenty%2Dseven,air%20strike%20to%20the%20hospital.

187 Jones, The War Lawyers, 11–15.

188 UN Human Rights Council, “Anatomy of a Genocide,” paras. 58–92; State of Israel, Ministry of Foreign Affairs, “Hamas-Israel Conflict 2023: Key Legal Aspects,” 2 November 2023, https://www.gov.il/BlobFolder/news/hamas-israel-conflict2023-key-legal-aspects/en/English_Documents_Hamas-Israel%20Conflict%202023%20-%20Some%20Factual%20and%20Legal%20Aspects%20-%20Israel%20Ministry%20of%20Foreign%20Affairs%20(2%20NOV%202023).pdf [hereinafter “Israeli Govt Legal Memorandum on Gaza War”]. Examples of how Israel has re-written IHL are described latter in this section.

189 “Israeli Govt Legal Memorandum on Gaza War,” 2.

190 “Israeli Govt Legal Memorandum on Gaza War,” 3.

191 See, e.g., Abraham, “’Lavender’: The AI Machine Directing Israel’s Bombing Spree in Gaza” (describing Israel’s indiscriminate targeting of Palestinian civilians and distorted, unlawful, and unprecedented approach to proportionality since 7 October). UN Human Rights Council, “Anatomy of a Genocide,” paras. 55–92.

192 E.g., Mohsen al Attar, “Of Palestinian Liars and Israeli Saints: Confronting Anti-Palestinian Racism in International Law,” Opinio Juris, 5 April 2024, https://opiniojuris.org/2024/04/05/of-palestinian-liars-and-israeli-saints-confronting-anti-palestinian-racism-in-international-law/; Jake Romm and Dylan Saba, “Acts Harmful to the Enemy,” N+1, 12 January 2024, https://www.nplusonemag.com/online-only/online-only/acts-harmful-to-the-enemy/; Luigi Daniele, “A Lethal Misconception, in Gaza and Beyond: Disguising Indiscriminate Attacks as Potentially Proportionate in Discourses on the Law of War,” EJIL:Talk!, 7 November 2023, https://www.ejiltalk.org/a-lethal-misconception-in-gaza-and-beyond-disguising-indiscriminate-attacks-as-potentially-proportionate-in-discourses-on-the-laws-of-war/.

193 E.g., Benjamin Wittes, “On Strategy, Law, and Morality in Israel’s Gaza Operation,” Lawfare, 17 October 2023, https://www.lawfaremedia.org/article/on-strategy-law-and-morality-in-israel-s-gaza-operation; Jens David Ohlin, “International Criminal Law Analysis of the Situation in Israel,” Opinio Juris, 12 October 2023, https://opiniojuris.org/2023/10/12/international-criminal-law-analysis-of-the-situation-in-israel/.

194 Many (though certainly not all) of the legal scholars based in the West who have spoken in more definitive terms about Israel’s IHL violations originally hail from Global South countries.

195 E.g., Wittes, “On Strategy”; Geoff Corn and Sean Watts, “Israel-Hamas Symposium-Siege Law and Military Necessity,” Articles of War, 13 October 2023, https://lieber.westpoint.edu/siege-law-military-necessity/.

196 South Africa Application, pp. 59–67.

197 Noura Erakat, “The Sovereign Right to Kill: A Critical Appraisal of Israel’s Shoot-to-Kill Policy in Gaza,” International Criminal Law Review 19 (2019): 805.

198 Various UN commissions of inquiry have documented Israel’s persistent practice of disproportionate force and deliberate targeting of civilians and civilian objects. E.g., UN Human Rights Council, “Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1,” A/HRC/29/CRP.4, paras. 221, 339, 415, 462, 671–72, 24 June 2015; UN Human Rights Council, “Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact-Finding Mission on the Gaza Conflict,” A/HRC/12/48, paras. 1883, 1889–93, 25 September 2009; UN Commission on Human Rights, “Report of the Human Rights Inquiry Commission Established Pursuant to Commission Resolution S-5/1 of 19 October 2000,” E/CN.4/2001/121, paras. 50–51, 16 March 2001.

199 E.g., IPC-Integrated Food Security Phase Classification, “Famine Review Committee: Gaza Strip, March 2024, Conclusions and Recommendations,” 18 March 2024, https://www.ipcinfo.org/fileadmin/user_upload/ipcinfo/docs/IPC_Famine_Committee_Review_Report_Gaza_Strip_Acute_Food_Insecurity_Feb_July2024_Special_Brief.pdf; Oxfam, “Starvation as a Weapon of War Being Used against Gaza Civilians,” 25 October 2023, https://www.oxfam.org/en/press-releases/starvation-weapon-war-being-used-against-gaza-civilians-oxfam.

200 Michael Schmitt, “Israel-Hamas 2023 Symposium-Attacking Hamas- Part I, The Context,” Articles of War, 6 December 2023, https://lieber.westpoint.edu/attacking-hamas-part-i-context/.

201 Ibid.

202 Wilfred Chan, “‘The Palestine Exception:’ Why Pro-Palestine Voices Are Suppressed in the United States,” The Guardian, 1 November 2023, https://www.thenation.com/article/world/gaza-medical-crisis/#:~:text=Six%20hundred%20and%20twenty%2Dseven,air%20strike%20to%20the%20hospital.

203 Jones, The War Lawyers, 157–96; Erakat, “The Sovereign Right to Kill,” 19; "Appendix B: Israeli Preemptive and Preventative Attack Cases” in Striking First: Preemptive and Preventative Attacks in U.S. National Security Policy, eds. Karl Mueller et al. (Santa Monica: RAND Corporation, 2006), 189–90.

204 Maya Wind, Towers of Ivory and Steel: How Israeli Universities Deny Palestinian Freedom (London: Verso Books, 2024), 89–11.

205 E.g., Amichai Cohen and Yuval Shany, “Unpacking Key Assumptions Underlying Legal Analyses of the 2023 Hamas-Israel War,” Just Security, 30 October 2023, https://www.justsecurity.org/89825/unpacking-key-assumptions-underlying-legal-analyses-of-the-2023-hamas-israel-war/. See Yoram Dinstein, “XVIII Concluding Remarks: LOAC and Attempts to Abuse or Subvert It,” eds. R.A. Pdrozo and D.P. Wollschlaeger, International Law Studies 87 (2011): 485, https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1090&context=ils (referring to so-called terrorists – Palestinians almost certainly included – as “modern barbarians” who “conduct hostilities in an utterly lawless fashion.”). Scholars outside Israel have also engaged in efforts to legitimize Israel’s war aims through expansive and problematic interpretations of international law. E.g., Claire Finkelstein and General (ret.) Joseph Votel, “Why the ICJ Ruling Misses the Mark: Mitigating Civilian Harm with an Enemy Engaged in Human Shielding,” Just Security, 29 January 2024, https://www.justsecurity.org/91517/why-the-icj-ruling-misses-the-mark-mitigating-civilian-harm-with-an-enemy-engaged-in-human-shielding/; Louis Beres, “Preserving the Third Temple: Israel’s Right of Anticipatory Self-Defense under International Law,” Vanderbilt Journal of International Law 26, no. 1 (1993): 112–15. While beyond the scope of this essay, Israel has a history of deputizing scholars to act covertly on its behalf to undermine legal rights protections. For example, Yoram Dinstein – one of Israel’s most celebrated scholars of international law who specialized in the laws of war and use of force – allegedly served as a spy for Israel’s Foreign Ministry in the 1970s and used his position as chair of Amnesty International’s Israel branch to manipulate the organization’s work in Israel’s favor. Neve Gordon and Nicola Perugini, “Israel’s Human Rights Spies: Manipulating the Discourse,” Al Jazeera English, 22 March 2017, https://www.aljazeera.com/opinions/2017/3/22/israels-human-rights-spies-manipulating-the-discourse.

206 Edward Said, “The Essential Terrorist,” Arab Studies Quarterly 9, no. 2 (1987): 198–99.

207 Lisa Stampnitzky, Disciplining Terror: How Experts Invented Terrorism (Cambridge: Cambridge University Press, 2013), 165–67.

208 “Israeli Govt. Legal Memorandum on Gaza War,” 2.

209 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press 2007): 52–65.

210 Birgit Schwarz and Belkis Willie, “Interview: Building the Evidence for Crimes Committed in Israel on October 7,” Human Rights Watch, 31 January 2024, https://www.hrw.org/news/2024/01/31/interview-building-evidence-crimes-committed-israel-october-7.

211 Jonathan Ofir, “Another Israeli Soldier Admits to Implementing the ‘Hannibal Directive’ on October 7,” Mondoweiss, 26 March 2024, https://mondoweiss.net/2024/03/another-israeli-soldier-admits-to-implementing-the-hannibal-directive-on-october-7/.

212 Schwarz and Willie, “Interview: Building the Evidence for Crimes Committed in Israel on October 7.”

213 Ibid.

214 For investigative reports challenging and debunking certain Israeli government accusations against Hamas and other Palestinians fighters regarding the events of 7 October – including the alleged beheading of babies and widespread and systematic rape of Israeli women – see Al Jazeera Investigations, “Oct. 7,” Al Jazeera English, https://www.youtube.com/watch?v=_0atzea-mPY; Jeremy Scahill, Ryan Grim, and Daniel Boguslaw, “‘Between the Hammer and the Anvil:’ The Story Behind the New York Times October 7 Exposé,” The Intercept, 28 February 2024, https://theintercept.com/2024/02/28/new-york-times-anat-schwartz-october-7/; Jeremy Scahill and Ryan Grim, “Kibbutz Ber’eri Rejects Story in New York Times October 7 Exposé: ‘They Were Not Sexually Abused,’” The Intercept, 4 March 2024, https://theintercept.com/2024/03/04/nyt-october-7-sexual-violence-kibbutz-beeri/.

215 E.g., G.A. Res. 78/192, 19 December 2023; G.A. Res. 58/163, 22 December 2003; G.A. Res. 3236, 2 November 1974; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 118, 9 July 2004 [hereinafter Wall Advisory Opinion]. See Palestinian Human Rights Organizations Council Position Paper, “Israel’s Military Offensive on the Gaza Strip Breaches Law on the Use of Force on Self-Defense Ad Bellum and Is a Continuing Act of Aggression 7,” 6 December 2023, https://www.alhaq.org/cached_uploads/download/2023/12/06/self-defense-final-1701866746.pdf (“The UN has consistently and repeatedly reasserted the right of self-determination of the Palestinian people in at least 267 resolutions and UN documents since 1970.”).

216 “The Declaration of the Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations,” A/RES/2625 (XXV), 24 October 1970 [hereinafter “Friendly Relations Declaration”].

217 Case Concerning East Timor (Portugal v. Australia), Judgment, para. 29, 30 June 1995.

218 Beyond Occupation, 15.

219 Ardi Imseis, The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity (Cambridge: Cambridge University Press, 2023), 43–44.

220 The OPT, which as mentioned below consists of the West Bank, Gaza, and East Jerusalem, has been recognized by various UN bodies as occupied by Israel since the Six Day War in June 1967. Sec. Council Res. 2720 (2023), S/RES/2720, 22 December 2023; Wall Advisory Opinion, para. 78. Disagreeing with the UN consensus, some – including the Israeli government – argue that Israel has not occupied or had effective control over Gaza since 2005 – when Israel unilaterally removed its troops and settlers from the territory. Beyond Occupation, 46. For one discussion as to why Gaza remained occupied before 7 October see Beyond Occupation, 45–51.

221 See Additional Protocol I, Art. 1(4) (recognizing as legitimate armed conflict “peoples … fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination … ”). See Richard Falk, “Azmi Bishara, The Right of Resistance, and the Palestinian Ordeal” for one discussion of the Palestinian right to resist using armed force. Journal of Palestine Studies 31, no. 2 (2002): 26.

222 E.g., G.A. Res.14/130, A/RES/14130, 14 December 1990; G.A. Res. 37/43, A/RES/3743, paras. 2–3, 3 December 1982.

223 Falk, “Azmi Bishara,” 27. For an alternative view, see Romm and Saba, “Acts Harmful to the Enemy.”

224 E.g., “Israeli Govt. Legal Memorandum on Gaza War,” 7.

225 Tovah Lazaroff, “Netanyahu: Israel at Risk of Losing Right to Self-Defense Against Terror,” The Jerusalem Post, 13 November 2023, https://www.jpost.com/arab-israeli-conflict/gaza-news/article-772939; The White House, “Joint Statement,” 22 October 2023, https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/22/joint-statement-on-israel-2/.

226 Wall Advisory Opinion, para. 139.

227 “UN Special Rapporteur: Israel Can’t Claim ‘Right of Self-Defense,’” Al Jazeera English, 15 November 2023, https://www.aljazeera.com/program/newsfeed/2023/11/15/un-special-rapporteur-israel-cant-claim-right-of-self-defence#:~:text=Francesca%20Albanese%2C%20UN%20Special%20Rapporteur,Press%20Club%20in%20Canberra%2C%20Australia.

228 Marko Milanovic, “Does Israel Have the Right to Defend Itself?,” EJIL: Talk!, 14 November 2023, https://www.ejiltalk.org/does-israel-have-the-right-to-defend-itself/.

229 See John Dugard, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories,” in Landmark Cases in Public International Law, ed. Eirik Bjorge and Cameron Miles (Oxford: Bloomsbury Publishing, 2017), 556 (arguing that Israel has no Article 51 right of self-defense in the OPT because it is “essentially engaged in a policing operation as an occupying power of the OPT”).

230 See G.A. Res. 3314 (XXIX), A/RES/3314(XXIX), Art. 3(a), 14 December 1974 (defining prohibited “aggression” as “any military occupation, however temporary, resulting from … invasion or attack”). While beyond the scope of this short essay, Israel's occupation of the OPT was arguably the result of an illegal use of force in violation of the UN Charter.

231 There is substantial disagreement as to whether the Article 51 right of self-defense can only be triggered by attacks from states or whether non-state actors can also engage in the level of attack required to engage the right. Milanovic, “Does Israel Have the Right to Defend Itself?”

232 Maryam Jamshid, “How Israel Weaponizes International Law,” Boston Review, 24 May 2021, https://www.bostonreview.net/articles/how-israel-weaponizes-international-law/.

233 Ibid.

234 ILA Use of Force Committee, “Final Report on Aggression and Use of Force,” Part B.II.a, 2018, https://www.ila-hq.org/en_GB/documents/conference-report-sydney-2018-7#page=12/ [hereinafter “ILA Use of Force Report”].

235 Ibid.

236 Milanovic, “Does Israel Have the Right to Defend Itself?”

237 Adil Ahmad Haque, “Enough: Self-Defense and Proportionality in the Israel-Hamas Conflict,” Just Security, 6 November 2023, https://www.justsecurity.org/89960/enough-self-defense-and-proportionality-in-the-israel-hamas-conflict/.

238 Haley Ott, “Israel Vows to ‘Destroy Hamas’ as Death Toll Rises from Unprecedented Attack; Several Americans Confirmed Dead,” CBS News, 8 October 2023, https://www.cbsnews.com/news/israel-hamas-war-netanyahu-vows-destroy-gaza-palestinian-group-death-toll-soars/. See “ILA Use of Force Report,” Part B.II.a (noting that it “appears that self-defense cannot justify ‘all-out’ war to destroy the enemy”).

239 Haque, “Enough: Self-Defense and Proportionality in the Israel-Hamas Conflict.”

240 G.A. Res. 3314 (XXIX), A/RES/3314(XXIX), Annex, 14 December 1974; G.A. Res. 2734 (XXV), A/RES/2734(XXV), para. 18, 16 December 1970; “Friendly Relations Declaration”; G.A. Res. 1514 (XV), A/RES/3314(XV), para 4, 14 December 1960.

241 “Friendly Relations Declaration”; G.A. Res. 2734, para. 18; G.A. Res. 1514, para. 5.

242 Noura Erakat, Justice for Some: Law and the Question of Palestine (Stanford: Stanford University Press, 2019), 220–22.

243 Ibid, 2; Fuad Zarbiyev, “Damaged Beyond Repair?: International Law after Gaza,” EJIL: Talk!, 26 March 2024, https://www.ejiltalk.org/damaged-beyond-repair-international-law-after-gaza/.

244 Erakat, Justice for Some, 4, 19–20.

245 Michele Keleman, “The U.S. Has Again Vetoed a U.N. Resolution Demanding an Immediate Cease-Fire in Gaza,” NPR, 20 February 2024, https://www.npr.org/2024/02/20/1232636543/un-security-council-gaza-cease-fire-vote. On 25 March 2024, the United States finally allowed the Security Council to pass a resolution demanding an immediate ceasefire, although its scope was limited in various ways. Ali Harb, “‘Not Enough’: Why the US Did Not Veto a Gaza Ceasefire Resolution at the UN,” Al Jazeera English, 25 March 2024, https://www.aljazeera.com/news/2024/3/25/not-enough-why-us-did-not-veto-gaza-ceasefire-resolution-at-un.

246 Yonette Joseph and Anushka Patil, “U.S. Vetoes Palestinian Bid for Recognition as Full U.N. Member State,” The New York Times, 18 April 2024, https://www.nytimes.com/2024/04/18/world/middleeast/palestinian-statehood-un-veto.html.

247 E.g., ibid; David Gritten, “Israel Says UN Resolution Damages Gaza Ceasefire Talks,” BBC News, 26 March 2024, https://www.bbc.com/news/world-middle-east-68665247#.

248 Eghbariah, “The Harvard Law Review Refused to Run This Piece about Genocide in Gaza.”

249 Though beyond the scope of this essay, there is a fourth case before the ICJ, brought by the State of Palestine and challenging the U.S. government’s decision to move its embassy to occupied Jerusalem. Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), Application Instituting Proceedings, 28 September 2018.

250 Proceedings Instituted by the Republic of Nicaragua against the Federal Republic of Germany on 1 March 2024, Application Instituting Proceedings, paras. 16–18, 67(5), 1 March 2024 [hereinafter Nicaragua Application].

251 The ICJ can hear two kinds of cases, contentious cases and advisory opinions. Contentious cases involve disputes between states. Statute of the International Court of Justice, Art. 36. Advisory opinions are requests made by competent organs of the UN, asking for the Court’s views on a question of international law. Ibid., Art. 65.

252 Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, Request for Advisory Opinion, 19 January 2023 [hereinafter OPT Advisory Opinion Request].

253 E.g., Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, Verbatim Record, 19 February 2024.

254 Jonathan Kuttab, “The ICJ Case on Israeli Occupation: A Report,” Arab Center of Washington DC, 4 March 2024, https://arabcenterdc.org/resource/the-icj-case-on-israeli-occupation-a-report/.

255 Situation in the State of Palestine, ICC-01/18, Investigation, https://www.icc-cpi.int/palestine.

256 Wall Advisory Opinion, paras. 115–16, 121–22.

257 Ibid., paras. 122, 132–34, 137.

258 Lina Alsaafin, “Israel’s Separation Wall Endures, 15 Years after ICJ Ruling,” Al Jazeera English, 9 July 2019, https://www.aljazeera.com/news/2019/7/9/israels-separation-wall-endures-15-years-after-icj-ruling. Since the 2004 ICJ opinion was an advisory opinion, Israel was not bound to follow the Court’s decision. International Court of Justice, “Advisory Jurisdiction,” https://www.icj-cij.org/advisory-jurisdiction. By contrast, the ICJ’s decisions in contentious proceedings are binding on parties to the suit.

259 BDS Movement, “Palestinian Civil Society Calls for BDS,” 9 July 2005, https://bdsmovement.net/call.

260 BDS Movement, “Impact,” https://bdsmovement.net/impact; Susan Akram, “In-Depth: Thirteen Years Later, the ICJ Advisory Opinion on the Wall,” Institute for Palestine Studies, 11 September 2017, https://www.palestine-studies.org/en/node/232135.

261 26 Jan. ICJ Order, para. 83.

262 “Canadian Freeze on New Arms Export Permits to Israel to Stay,” Reuters, 20 March 2024, https://www.reuters.com/world/canadian-freeze-new-arms-export-permits-israel-stay-2024-03-20/.

263 E.g., Human Rights Watch, “Open Letter: Civil Society Coalition Urges Canada to Stop Arms Transfers to Israel,” 5 February 2024, https://www.hrw.org/news/2024/02/07/open-letter-civil-society-coalition-urges-canada-stop-arms-transfers-israel.

264 Jillian Kestler-D’Amours, “ICJ Ruling in Gaza Genocide Case Renews Calls to End Israel Arms Transfers,” Al Jazeera English, 27 January 2024, https://www.aljazeera.com/news/2024/1/27/icj-ruling-in-gaza-genocide-case-renews-calls-to-end-israel-arms-transfers.

265 Office of the UN High Commissioner for Human Rights, “Arms Exports to Israel Must Stop Immediately: UN Experts,” 24 February 2024, https://www.ohchr.org/en/press-releases/2024/02/arms-exports-israel-must-stop-immediately-un-experts#:~:text=GENEVA%20(23%20February%202024)%20–,%2C%20UN%20experts*%20warned%20today.

266 Nicaragua Application, para. 12.

267 Defense for Children Int’l-Palestine v. Biden, 23-cv-05829-JSW, Order Granting Motion to Dismiss and Denying Motion for Preliminary Injunction, pp.4,8 (N.D. Cal. 31 January 2024).

268 Canadian Lawyers for International Human Rights, “Lawsuit Filed Against Canadian Government to Stop Arms Exports to Israel,” 5 March 2024, https://claihr.ca/wp-content/uploads/2024/03/Press-Release-CLAIHR-EN.pdf.

269 Amnesty International, “Denmark: NGOs Sue the Danish State to Stop Arms Exports to Israel,” 12 March 2024, https://www.amnesty.org/en/latest/news/2024/03/denmark-ngos-sue-the-danish-state-to-stop-arms-exports-to-israel/.

270 Kanishka Singh, “Over 100 pro-Palestinian Protesters Arrested from New York’s Columbia Campus,” Reuters, 19 April 2024, https://www.reuters.com/world/us/over-100-pro-palestinian-protesters-arrested-new-yorks-columbia-campus-2024-04-19/; Michael Sappir, “The Spiraling Absurdity of Germany’s Pro-Israel Fanaticism,” +972 Magazine, 21 March 2024, https://www.reuters.com/world/us/over-100-pro-palestinian-protesters-arrested-new-yorks-columbia-campus-2024-04-19/.

271 Fionnuala Ní Aoláin, “New Development in Palestinian Bid to Join International Criminal Court,” Just Security, 26 August 2014, https://www.justsecurity.org/14332/development-palestinian-bid-join-international-criminal-court/; State of Palestine, “Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute,” para. 1 & n.1, 15 May 2018, https://www.icc-cpi.int/sites/default/files/itemsDocuments/2018-05-22_ref-palestine.pdf [hereinafter “Palestine ICC Referral”]. The ICC initially rejected Palestine’s bid to join the Rome Statute saying it lacked the competence to determine whether Palestine qualified as a “state” under international law as required by the Statute. NÍ Aoláin, “New Development in Palestinian Bid to Join International Criminal Court.”

272 Leslie Vinjamuri, “The International Criminal Court and the Paradox of Authority,” Law and Contemporary Problems 29, no. 1 (2016): 285.

273 “Palestine ICC Referral,” para. 1.

274 ICC, “Statement of the ICC Prosecutor, Fatou Bensouda, Respecting an Investigation of the Situation in Palestine,” 3 March 2021, https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-respecting-investigation-situation-palestine.

275 There is some debate as to whether these delays were a result of actions taken by the current ICC prosecutor, Karim Khan, who joined the Court in June 2021, or whether blame also or more appropriately lies with the former ICC prosecutor, Fatou Bensouda. Kevin Jon Heller, “A Response to Mariniello About the Palestine Investigation, Opinio Juris, 4 January 2024, https://opiniojuris.org/2024/01/04/a-response-to-mariniello-about-the-palestine-investigation/; Triestino Mariniello, “The ICC Prosecutor’s Double Standards in the Time of an Unfolding,” Opinio Juris, 3 January 2024, https://opiniojuris.org/2024/01/03/the-icc-prosecutors-double-standards-in-the-time-of-an-unfolding-genocide/. For a broader discussion of the limitations and opportunities presented by the ICC’s investigation into the Situation in the State of Palestine see Pearce Clancey and Rania Muhareb, “Putting the International Criminal Court’s Palestine Investigation into Context,” Opinio Juris, 2 April 2021, https://opiniojuris.org/2021/04/02/putting-the-international-criminal-courts-palestine-investigation-into-context/.

276 Mariniello, “The ICC Prosecutor’s Double Standards in the Time of an Unfolding.”

277 Republic of Chile and United Mexican States, “ICC Referral,” 18 January 2024, https://www.icc-cpi.int/sites/default/files/2024-01/2024-01-18-Referral_Chile__Mexico.pdf; Republic of South Africa, People’s Republic of Bangladesh, Plurinational State of Bolivia, The Union of the Comoros, and the Republic of Djibouti, “State Party Referral in Accordance with the Rome Statute of the International Criminal Court,” 17 November 2023, https://www.icc-cpi.int/sites/default/files/2023-11/ICC-Referral-Palestine-Final-17-November-2023.pdf.

278 E.g., Law for Palestine, “A Communication Submitted by Law for Palestine, Supported by the Independent Commission for Human Rights – Palestine and Endorsed by a Broader International Coalition, to the Office of the Prosecutor of the International Criminal Court Establishing the Perpetration of the Crime of Genocide by Members of the Israeli War Cabinet,” 20 March 2024, https://law4palestine.org/wp-content/uploads/2024/03/ICC-Submission-Executive-Summary-Law-for-Palestine-and-ICHR.pdf; Al-Haq, “Palestinian Human Rights Organisations Call on ICC to Issue Arrest Warrants Against Israeli Leaders for Genocide and Incitement to Genocide,” 9 November 2023, https://www.alhaq.org/advocacy/22138.html.

279 While beyond the scope of this essay, the request for an advisory opinion on Israel’s occupation of the OPT is a very significant development in the jurisprudence relating to Palestine. For more information on the advisory opinion and its significance see Kuttab, “The ICJ Case on Israeli Occupation: A Report”; Yaël Ronen, “Will History Repeat Itself? Anticipating the ICJ Advisory Opinion on the Legal Status of Israel’s Occupation and Its Consequences,” EJIL:Talk!, 30 January 2023, https://www.ejiltalk.org/will-history-repeat-itself-anticipating-the-icj-advisory-opinion-on-the-legal-status-of-israels-occupation-and-its-consequences/.

280 According to recent reports, Israel is fearful the ICC may indict high-ranking Israeli officials, including Prime Minister Benjamin Netanyahu, as early as the end of April 2024. “Israel Fears ICC Arrest Warrants over Gaza War Crimes –What We Know So Far,” Palestine Chronicle, 18 April 2014, https://www.palestinechronicle.com/israel-fears-icc-arrest-warrants-over-gaza-war-crimes-what-we-know-so-far/.

281 The General Assembly’s advisory opinion request includes a request for the ICJ to articulate the “legal consequences that arise for all States and the UN” from its determinations regarding the legal status of Israel’s occupation of the OPT and other matters. OPT Advisory Opinion Request, p. 2. In other words, if the Court concludes that Israel’s occupation and annexation of Palestinian land is illegal, the Court should also articulate whether and how that creates legal obligations for Israel, third-party States, and the UN.

282 Anghie, Imperialism, 3.

283 Jack Basu-Mellish, “UN Resolution 1514: The Creation of a New Post-Colonial Sovereignty,” Third World Quarterly 44, no. 6 (2023): 1306–07, 1317–20.

284 See above for a discussion of the Gambia v. Myanmar case that seeks to hold Myanmar accountable for its genocide of the Rohingya. Another recent advisory opinion decided by the ICJ also sought to defend the rights of Global South peoples. In 2017, the General Assembly requested the ICJ to weigh in on the legality of the UK’s “administration” of the Chagos Archipelago, which had been part of Mauritius. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Request for Advisory Opinion, p. 2, 22 June 2017. In a 2019 opinion, the Court concluded that the UK was under a legal obligation to end its colonization of the Chagos, which violated the right to self-determination of the Mauritian people. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, paras. 177–78, 25 February 2019.

285 Erakat, Justice for Some, 17.

286 See Marc Lamont Hill and Mitchell Pitnick, Except for Palestine: The Limits of Progressive Politics (New York: New Press, 2021) (calling on American progressives to embrace the Palestinian cause).

287 Mattha Busby, “Israel Has Turned the Occupied Territories into a Laboratory for State Terror: An Interview with Antony Loewenstein,” Jacobin, 12 July 2023, https://jacobin.com/2023/07/israel-occupation-surveillance-security-state-technology-export.

288 “After Training in Israel, Indian Police Officers Get Involved in ‘HR Rights Violations’ in Kashmir, Petitioners Seek Proper ‘Screening,’” Free Press Kashmir, 12 September 2020, https://freepresskashmir.news/2020/09/12/after-training-in-israel-indian-police-officers-get-involved-in-hr-rights-violations-in-kashmir-petitioners-seek-proper-screening/; Edith Garwood, “With Whom Are Many U.S. Police Departments Training? With a Chronic Human Rights Violator – Israel,” Amnesty International, 25 August 2016, https://www.amnestyusa.org/updates/with-whom-are-many-u-s-police-departments-training-with-a-chronic-human-rights-violator-israel/.

289 Darryl Li, “Anti-Palestinian at the Core: The Origins and Growing Dangers of U.S. Antiterrorism Laws,” Center for Constitutional Rights, 20 February 2024, https://ccrjustice.org/anti-palestinian-core-origins-and-growing-dangers-us-antiterrorism-law; Maryam Jamshidi, “Instruments of Dehumanization,” Boston Review, 9 December 2023, https://www.bostonreview.net/articles/instruments-of-dehumanization/.

290 Jamshidi, “Instruments of Dehumanization”; Chris McGreal, “UN Urged to Reject Antisemitism Definition over ‘Misuse’ to Shield Israel,” The Guardian, 24 April 2023.

291 Jones, The War Lawyers, 193–96.

292 Uğur Ümit Üngör, “Screaming, Silence, and Mass Violence in Palestine,” Journal of Genocide Research (26 January 2024): 1–2.

293 Statement of Ambassador Carolyn Rodrigues-Birkett, “Security Council, 9608th Meeting: The Situation in the Middle East, Including the Palestinian Question,” Minute 2:42:05–2:50:13, 18 April 2024, https://webtv.un.org/en/asset/k1n/k1njwalhkh.