Israel’s military operation in the Gaza Strip, which started on October 7, 2023, is unprecedented. Israel’s stated goal is not simply “to destroy Hamas,” but to turn Gaza into “rubble,”*1 with full knowledge that Gaza is one of the most densely populated areas in the world. Gaza has been under Israel’s illegal occupation and effective control since 1967, cut off from the world under Israel’s illegal closure and blockade since 2007, as it controls the air space, sea, and perimeter of Gaza in a persecutory act of collective punishment against the civilian population.
To date, at least 8,005 Palestinians have been killed in Gaza – without taking into account hundreds of Palestinians currently trapped underneath the rubble – and 20,000 more injured,*2 the overwhelming majority of whom are not Hamas members. In fact, around 70 percent of casualties so far are women and children.
Israel has even ordered 1.1 million Palestinians to evacuate from the north to the south of the Gaza Strip,*3 in an act of forcible mass transfer that may alter permanently the demography of northern Gaza, creating facts on the ground that may well become a de facto annexation. The “evacuation” has prompted UN Special Rapporteur Francesca Albanese to issue the warning that Palestinians are in grave danger of mass ethnic cleansing, and she called on the international community to urgently “mediate a ceasefire between warring Hamas and Israeli occupation forces.”*4
Meanwhile, every part of the Gaza Strip, north and south, has been subject to indiscriminate Israeli bombardments,*5 including Salah al-Din Road*6 – which the Israeli military indicated as a safe passage area for civilians and nevertheless bombed, killing 70 fleeing civilians – along with hospitals*7 and UNRWA schools*8 housing the internally displaced.*9 There is no safe place in Gaza.
Basic norms regulate armed conflicts and must be considered even during war. They include the principle of distinction and the prohibition of collective punishment.
Israel’s conduct of hostilities blatantly violates a number of rules of international humanitarian law (IHL), starting first and foremost with the principle of distinction that imposes upon parties to an armed conflict the requirement to distinguish between civilians and combatants and civilian objects and military objectives.*10 Civilians are protected as long as they do not directly participate in hostilities.*11 This is a cardinal rule of IHL, as recognized in international jurisprudence.*12 By directly attacking civilians, including through targeted attacks on journalists, medical personnel, civilians fleeing, family homes, hospitals, and commercial properties, among others, Israel is violating the cardinal principle of distinction. By punishing the population of more than two million civilians and depriving them of basic necessities to survive, such as fuel, food, and electricity,*13 Israel is not properly fighting its stated military adversary but rather violating another paramount rule of IHL, the prohibition of collective punishment. Indeed, Article 33 of the 1949 Fourth Geneva Convention reads: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited.”
International crimes include war crimes, crimes against humanity, and genocide. Israel is committing all of these.
Israel is violating international criminal law: The atrocities we have been witnessing for more than three weeks constitute international crimes in the sense that they take place in specific contexts that give rise to the application of another body of public international law: international criminal law.
Israel is committing war crimes. The commonly cited definition of belligerent occupation can be found in Article 42 of the Hague Regulation of 1907: a “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.”*14 The current Israeli military offensive is taking place in an occupied territory in which Israel continues to maintain effective control. Being that Gaza is an occupied territory, Israel, as the occupying power, bears clear responsibilities vis-à-vis Gaza’s population under the Hague Regulations and the Fourth Geneva Convention.
Israel’s war crimes include willful killing, attacking journalists, willfully causing great suffering, or serious injury to body or health, torture, forced displacement, excessive destruction of property, the targeting of places of worship and hospitals (which applies even if they are used by military combatants if the principle of proportionality is not applied), using starvation as a weapon, and providing no safe places.
Article 8(2) of the Rome Statute of the International Criminal Court states that, in an international armed conflict, which includes belligerent occupation, war crimes are “[g]rave breaches of the Geneva Conventions of 12 August 1949 […] against persons or property protected under the provisions of the relevant Geneva Convention”*15 and “[o]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.”*16 Under the Fourth Geneva Convention, protected persons are “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”*17 Hence, Palestinians in Gaza qualify as protected persons to the extent that they live under Israel’s occupation.
The most common grave breach of the Fourth Geneva Convention, which is perpetrated on a daily basis in Gaza is willful killing. This crime requires a behavior, an act that caused the death of the victims, and a state of mind, the intent to kill the victim. It is beyond dispute that many deaths in the Gaza Strip have been caused by the Israeli Occupying Forces (IOF) airstrikes and shelling. It is also clear that those Israeli commanders and soldiers who respectively planned and carried out these attacks, in a territory already under its 56-year occupation, know that bombing and shelling highly populated areas would lead to the killing of a large number of civilians, which has happened. Notwithstanding, the IOF has targeted time and time again, since October 7, Palestinian homes, residential buildings, commercial centers, mosques, churches, and cultural properties in Gaza, with knowledge of the indiscriminate and lethal effect of their attack and have thus committed the crime of willful killing.
In an effort to cover its crime by preventing the collection of evidence and obstructing justice, Israel further has intentionally and specifically killed journalists. Yet, attacking journalists and news media is illegal, which “derives from the protection granted to civilians and civilians objects under [IHL].”*18 They shall be protected “as long as they are not taking a direct part in hostilities.”*19 Attacking journalists in violation of these provisions further constitutes a war crime.*20
When the IOF fail to kill Palestinians through their countless attacks, they have injured many more of them, sometimes inflicting severe physical pain, which further constitutes a grave breach of the Fourth Geneva Convention and thus a war crime, namely, willfully causing great suffering, or serious injury to body or health.*21 So does torture,*22 which is committed through the severe psychological trauma inflicted upon Palestinians who never know when they will be targeted by Israel’s airstrikes and shelling, especially in the dark of the night as Gaza runs out of electricity because of Israel’s full siege. This severe mental trauma is in particular relevant for children who have been living their entire lives under Israel’s blockade, occupation, and apartheid, and through several Israeli military offensives against Gaza, with the one currently unfolding being the worst by far.
Moreover, Israel has ordered 1.1 million Palestinians to leave their homes in the north of Gaza and flee to the south, which forced some of them to act accordingly. Unless qualifying as one of the exceptions provided by Article 49 of the Fourth Geneva Convention, namely, the protection of the civilian population for imperative military reasons, and guaranteeing the return back to their homes as soon as hostilities in the area in question have ceased, this constitutes a grave breach thereof as well as a war crime. Crucially, “Israel continues its relentless bombing campaign” in the south of Gaza, which “suggests that Israel’s evacuation orders are not issued for the safety of the civilian population, but rather, are intended to forcibly displace hundreds of thousands of Palestinians to move them closer to the border with Egypt.”*23 Further, imperative military reasons are limited to compelling cases where the party to the conflict ordering the evacuation would obtain more than a mere military advantage, which does not appear to be the case with respect to Israel’s current order to evacuate the entire northern Gaza Strip.
Israel is engaged in crimes against humanity as it carries out widespread and systematic attacks against a civilian population through imprisonment, apartheid, enforced disappearance, and persecution.
Israel is further in breach of the principle of distinction based on the large number of civilian objects attacked and destroyed, which constitute the war crime of “intentionally directing attacks against civilian objects, that is, objects which are not military objectives.”*24 Considering that 45 percent of housing units in Gaza have been destroyed or damaged,*25 Israel’s conduct of hostilities is further prosecutable for excessive destruction of property not justified by military necessity and carried out wantonly and unlawfully.*26
Even assuming that the IOF has targeted Hamas facilities, the extent of human losses and damage to civilian properties would still make these attacks unlawful and prosecutable, as they violate the principle of proportionality which requires military commanders to refrain from those attacks that would cause human cost and damage outweighing the military advantage they expect from their attack.*27 In addition, Israel’s targeting of hospitals and places of worship disregards the special immunity from attacks that these places are offered under IHL, which also falls under the jurisdiction of the ICC.*28
Israel’s decision to deprive Gaza of essential supplies and humanitarian aid is further criminalized under the Rome Statute, as “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions,” which is also is a war crime.*29 This is part of Israel’s total warfare. In the same vein, an Israeli official has stated: “all the places where Hamas is deployed, hiding in and operating from will be turned into rubble. I say to the residents of Gaza: Leave now because we will operate forcefully everywhere,”*30 which further amounts to the war crime of “[d]eclaring that no quarter will be given.”*31
Israel is committing crimes against humanity: Under the Rome Statute, crimes against humanity (CAH) exist when any of the criminal acts listed in Article 7(1) is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”*32 The abovementioned criminal acts include “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,” apartheid, enforced disappearance, and persecution. Persecution means the intentional and severe deprivation of the fundamental rights of members of a group on account of their race, nationality, ethnicity, culture, religion, or gender.*33
Israel’s attack against the Palestinian civilian population has killed over 8,000 Palestinians, and inflicted upon many more of them severe physical pain through serious injuries, with the knowledge that these adverse consequences would occur in the normal course of the events triggered by the airstrikes and shelling carried out on Gaza. Further, numerous houses and buildings have been destroyed. Therefore, Palestinians’ right to life, physical integrity, and property, which are internationally recognized human rights, have been severely violated by the IOF over the past three weeks. These violations have been committed against an identifiable racial, ethnic, and cultural group, Palestinians living in Gaza, hence amounting to the crime of persecution.
While Gaza is under heavy fire, one should not lose sight of the situation in the West Bank. As of October 28, the IOF have illegally arrested 1,450 Palestinians therein.*34 These widespread arbitrary arrests of Palestinian civilians constitute a crime against humanity to the extent that the arrests are not legally justified and carried out without charge. As part of this mass arrest campaign, “thousands of workers from Gaza, who were employed in Israel when the war started, have gone missing since then,” and Israeli authorities have so far refused to disclose their names and places of detention,*35 which amounts to the crime against humanity of enforced disappearance.
Israel is committing the crime of genocide, and Israeli officials are using hate speech to demonize an entire population and to incite to genocide.
The Genocide Convention defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) Imposing measures intended to prevent births within the group.”*36 This definition is reflected in Article 6 of the Rome Statute.
As indicated above, the two first acts mentioned in this article have been committed through the IOF airstrikes and shelling. As for the third, the full 16-year siege and closure imposed by Israel on Gaza certainly constitutes dire conditions of life deliberately inflicted by Israel on the Palestinian people to bring about its destruction, which is the normal and foreseeable consequence that arises when people are prevented from accessing basic necessities, including electricity, fuel, adequate water, and food, for such a long period of time.
The intent of Israeli officials to commit and incite genocide can be inferred from their public statements. Notably, on October 9, 2023, Yoav Gallant, Israel’s Minister of Defense stated, “We are imposing a complete siege on [Gaza]. No electricity, no food, no water, no fuel – everything is closed. We are fighting human animals, and we act accordingly.”*37
This predicted what we are witnessing today, the lack of a safe place in Gaza. This pattern of dehumanizing Palestinians to justify total warfare has further been used by former Israeli Prime Minister Neftali Bennet who, when asked about the fate of Palestinians in Gaza, answered: “are you seriously asking me about Palestinian civilians? What is wrong with you? We’re fighting Nazis.”*38 Israel Katz, Israel’s minister of National Infrastructure, Energy, and Water: “For years we supplied Gaza with electricity, water and fuel. Instead of saying thank you, they sent thousands of human animals to slaughter, murder, rape and kidnap babies, women and elderly – that’s why we decided to stop the flow of electricity and fuel and their local station has collapsed and there is no electricity in Gaza. We will continue to tighten the siege until Hamas threat to Israel and the world is removed.”*39
Israel has effectively followed these statements by also denying the “entry of humanitarian convoys of food, medicine, and other supplies necessary for the survival of the population through the Rafah crossing.”*40 Furthermore, some of these statements are hate speech to the extent that they demonize Hamas, triggering hatred in Israeli minds and blurring the distinction between Palestinian civilians and Hamas combatants, hence seeking to ignite a collective response among Israelis to kill Palestinians and thus amounting to incitement to genocide.
Israel’s military onslaught on the occupied Gaza Strip, under its 56-year effective control and 16-year siege and closure, is being conducted in callous disregard of the most basic precepts of international humanitarian law. The captive civilian population of the Gaza Strip is being attacked and indiscriminately killed by the unconstrained force of a world military superpower. These acts, carried out under the voyeuristic gaze of the international community, breach the most fundamental principle of international humanitarian law, humanity.
*1 Associated Press News, “Israel vows again to destroy Hamas, rejecting calls for a cease-fire in Gaza at a major UN meeting,” October 25, 2023.
*2 United Nations Office for the Coordination of Humanitarian Affairs, “Hostilities in the Gaza Strip and Israel-Flash update #23,” October 29, 2021.
*3 Al-Haq, Al Mezan, and PCHR, “Urgent: Israel’s Evacuation Order to 1.1 Million Palestinians in Gaza is Direct Forcible Transfer, Urgent Intervention is Needed,” October 13, 2023.
*4 United Nations, “UN expert warns of new instance of mass ethnic cleansing of Palestinians, calls for immediate ceasefire,” October 14, 2023.
*5 United Nations, “Gaza: UN experts decry bombing of hospitals and schools as crimes against humanity, call for prevention of genocide,” October19, 2023.
*6 Al-Haq, Al Mezan, PCHR, “No Safe Place: Despite ‘Evacuation Order’, Israel Continues to Carpet-Bomb Gaza From North To South,” October 18, 2023.
*7 United Nations, “Gaza: UN experts decry bombing of hospitals and schools as crimes against humanity, call for prevention of genocide,” October 19, 2023.
*8 UNRWA, “Escalation in the Gaza Strip and Israel | Flash Update #3,” October 9, 2023.
*9 Al-Haq, Al Mezan, and PCHR, “No Safe Place: Despite ‘Evacuation Order’, Israel Continues to Carpet-Bomb Gaza From North to South,” October 18, 2023.
*10 International Committee of the Red Cross (ICRC), IHL Database, Customary IHL, Rules 1, 7.
*11 ICRC, IHL Database, Customary IHL, Rule 6; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, (AP 1), 1977, Article 53.
*12 International Court of Justice (“ICJ”), “Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,” 1996, paras. 78–79.
*13 Al-Haq, Al Mezan, PCHR, “Days 5-6: Following Genocidal Statements, Israel Escalates Attacks on Gaza’s Civilian Population Through Killing, Starvation and Cutting Off Vital Supplies,” October 12, 2023.
*14 The Hague Regulations concerning the Laws and Customs of War on Land (1907), Article 42.
*15 Rome Statute of the International Criminal Court (ICC) (1998), Article 8(2)(a).
*16 Rome Statute of the ICC (1998), Article 8(2)(b).
*17 Fourth Geneva Convention (1949), Article 4.
*18 Al-Haq, Al Mezan, and PCHR, “Joint Urgent Appeal to UN Special Procedures on Journalists Killed While Reporting in Gaza, Highlights Israel in Breach of International Law,” October 13, 2023.
*19 ICRC, IHL Database, Customary IHL, Rule 34; AP 1, Article 79.
*20 Rome Statute of the ICC, Article 8(2)(b)(i).
*21 Rome Statute of the ICC, Article 8(2)(a)(iii).
*22 Rome Statute of the ICC, Article 8(2)(a)(ii).
*23 Al-Haq, Al Mezan, and PCHR, “Israel’s Last Evacuation Order Requires Urgent International Intervention to Protect Gaza’s Civilian Population, Who Have Nowhere Left to Shelter,” October 29, 2023.
*24 Rome Statute of the ICC, Article 8(2)(b)(ii).
*25 Al-Haq, Al Mezan, and PCHR, “Israel’s Last Evacuation Order Requires Urgent International Intervention to Protect Gaza’s Civilian Population, Who Have Nowhere Left to Shelter,” October 29, 2023.
*26 Rome Statute of the ICC, Article 8(2)(a)(iv).
*27 ICRC, IHL Database, Customary IHL, Rule 14; AP I, Articles 51(5)(b), 57(2)(a)(iii), 57(2)(b); Rome Statute of the ICC, Article 8(2)(b)(iv).
*28 Rome Statute of the ICC, Article 8(2)(b)(ix).
*29 Rome Statute of the ICC, Article 8(2)(b)(xxv).
*30 Prime Minister of Israel, X, October 7, 2023.
*31 Rome Statute of the ICC, Article 8(2)(b)(xii).
*32 Rome Statute of the ICC, Article 7(1).
*33 Rome Statute of the ICC, Article 7(1)(h) and 7(2)(g).
*34 Frederica Marsi and Ylenia Gostoli, “Thousands of Gaza workers go ‘missing’ in Israel amid wartime mass arrests,” Aljazeera, October 28, 2023.
*36 Convention on the Prevention and Punishment of the Crime of Genocide (1948), Article II.
*37 Yoav Gallant, Twitter/X Post, October 9, 2023.
*38 Middle East Monitor, “Ex-Israel PM screams at reporter asking about suffering of Palestinian babies,” October 13, 2023.
*39 Israel Katz, Twitter/X, October 11, 2023.
*40 Al-Haq, Al Mezan, PCHR, “Urgent Action: Palestinian Human Rights Organisations Call on Third States to Urgently Intervene to Protect the Palestinian People Against Genocide,” October 13, 2023.