By Uzair Kayani, Sikander Shah and Sadaf Aziz – Dec 3, 2023
Israel’s reprisals against Palestinian civilians after the Hamas attacks of October 7, 2023 have killed thousands of children. Out of the 2.2 million Gazans, some 1.7 million have been displaced. More than 15,000 Palestinians have been killed — many in schools and hospitals. More than 100 United Nations (UN) aid workers have died — more than in any conflict in the UN’s history. As of this writing, an unprecedented 51 journalists have been killed. This targeting of civilians and civilian infrastructure is jarring. It calls for a sober accounting under the principles of International Humanitarian Law (IHL).
However, humanitarian law aspects should not obfuscate Israel’s other ongoing crimes against the Palestinian people. A truer description of Israel’s conduct under international law is “genocide”. Genocide is the intentional extermination of a protected group, such as a nation or race, in whole or in part, through killing, transferring, fragmenting and other persecution.
While genocide was recognised as a crime in the Genocide Convention of 1948, the prohibition and prevention of genocide have, since the International Court of Justice’s (ICJ) judgment on Reservations to the Genocide Convention in 1951, been peremptory norms of international law. This means they apply to all states, regardless of whether they have signed the Convention or any other treaties.
Israel has attempted to skirt this prohibition through legal subterfuge. It has incrementally constructed a misinterpretation of the right of ‘self-defence’ to commit a Palestinian genocide unheeded. The consequences for Palestinians have been unfathomable loss and cruelty.
Meanwhile, the implications of today’s precedents for the future of global security — particularly the laws of armed conflict, genocide and crimes against humanity — are catastrophic.
To show this, we assess both the authorisations and limits of the right to self-defence claimed by Israel, and the structural and historical aspects of Israeli occupation and related crimes suffered by the Palestinians.
Do Israel’s indiscriminate and brutal actions in Gaza meet the conditions for it to be charged with genocide under international law? And what would be the possible avenues for it to be so charged? The law faculty of the Lahore University of Management Sciences offer a collective and considered opinion…
International humanitarian law and the current operation
The only legitimate authorisation for unilateral force and the only trigger for the declaration of armed hostilities in an inter-state system is encoded in the UN Charter under Article 51. This article declares an “inherent right of individual or collective self-defence if an armed attack has taken place” against a member state, until such a time that “the Security Council has taken measures necessary to maintain international peace and security.”
Regarding Palestinian armed resistance, the ICJ has already clarified in the ‘Israeli Wall’ case that Israel does not have an IHL “right to self-defence” against the Palestinian people, because it controls Palestinians and their land as an occupying force.
Even assuming argeuendo — for the sake of argument — that Israel had such a right, the drafters of the Charter sought to limit unilateral recourse to force; they anticipated a multilateral response where such hostilities had been initiated. That such multilateral responses only materialise selectively should not detract from the limits on unilateral force underlying the Article 51 right, and articulated through customary international law.
In a formulation long recognised as customary international law, the then US Secretary of State, Daniel Webster, in the 1837 ‘Caroline’ affair, emphasised that “self-defence is instant, overwhelming, and leaves no choice of means, and no moment for deliberation.”
It is also against the principles of collective security to extend a unilateral right to self-defence indefinitely.
Yet, both Israel and the US seem to adhere to a concept of self-defence that extends in perpetuity, exemplified by the enduring US ‘war against global terrorism.’ Today, the reluctance of both Israel and the US to consent to a ceasefire, as opposed to a “humanitarian pause”, bears legal significance, as a ceasefire presents more compelling evidence of the cessation of hostilities, implying the conclusion of a self-defence response to an armed attack. Failure to adhere to a ceasefire could potentially categorise any subsequent use of force as an illegal act of reprisal under international law.
But asking how long Israel’s right to self-defence lasts begs the question. Circumventing the question of whether Israel has a right of self-defence against Palestinians to instead debate whether the “self-defence” is ongoing or proper is a sleight of hand.
This narrative redirects commentary away from one body of the law of armed conflict, that of the jus ad bellum — the legal rules that determine when a nation can act in self-defence — to jus in bello, or the rules defining what a belligerent can and cannot do in self-defence. Even if we partook of this ruse, Israel’s military actions would still be illegal, because of its brutal military conduct.
Regarding Palestinian armed resistance, the ICJ has already clarified in the ‘Israeli Wall’ case that Israel does not have an International Humanitarian Law “right to self-defence” against the Palestinian people, because it controls Palestinians and their land as an occupying force.
In its 2004 advisory opinion on the consequences of the Israeli Wall on Palestinian land, the ICJ explained that the Palestinian territories were occupied territories; that all international human rights treaties ratified by Israel, including the International Covenants of Civil and Political Rights and Economic, Social and Cultural Rights, applied to Israel’s conduct there; and that even if and when humanitarian law applied, it did not completely displace Israel’s human rights obligations to the Palestinians. This opinion and the conditions it cites undermine both Israel’s invocation of self-defence and its military conduct.
Self-defence is thus a disingenuous labelling of Israel’s actions.
Its employment to dissimulate and minimise the political cost of the butchery we see is not novel. It adds to a wave of neologisms that have shaken the foundations of international, and sometimes domestic, law in the 21st century: the “rules-based world order”, “the responsibility to protect”, “preemptive self-defence”, “unlawful enemy combatants”, and “enhanced interrogation techniques” are all sui generis characterisations to avoid applicable and binding precedents.
In almost all cases where we see this language, there has been a loosening of the standards applicable to self-defence as the sole grounds for prosecuting warfare.
Under IHL, parties to an armed conflict must always distinguish between the civilian population and combatants, as well as between civilian objects and military objectives. They are obligated to direct their operations solely against military objectives and must take precautions in the method of attacks with a view to avoiding or minimising incidental loss of civilian life, injury to civilians, and damage to civilian objects.
Civilians cannot be made the object of attack. All IHL instruments, including the 1907 Hague Regulations and the 1949 Geneva Conventions, prohibit the deliberate targeting of medical units, vehicles and other transport, as well as places of worship and schools.
Article 52 of Protocol I to the Geneva Conventions, now considered customary law, states that, “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling, or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”
Israel has, so far, not convincingly met the burden of refuting this presumption.
International commentary tends to turn these violations on their head. We are told that, since Hamas does not distinguish between civilians and combatants, and does not follow the laws of war, Palestinians cannot expect this from Israel. This is another dissemblance.
The Palestinian population, corralled into Gaza and living under an occupation, has neither the physical space to distance itself from belligerents, nor the means to acquire weapons or training that would allow belligerents to meet the standards that Israel sets.
A mechanical application of humanitarian laws that presuppose a sovereign state belligerent, or at the very least, a highly organised and resourceful actor, will always find an occupied or debilitated adversary fall short. Increasingly, the nature of modern warfare is asymmetrical: enormously powerful states are prosecuting wars on the penurious or the dispossessed.
Under the sham tit-for-tat logic of the overwhelmingly strong against the abjectly weak, the International Humanitarian Law protections accorded to civilians in periods of armed conflict have been stripped away. For example, in these last few weeks, we have read arguments about human shields in Palestine, tunnels near hospitals, and irregular combatants. The purpose of this narrative is to exploit the boxed-up position of Gaza: a position that Israel has created.
It is physically impossible for combatants to distance themselves from civilians in an overcrowded strip of land, or to acquire weapons or tactical training that could allow for a conventional armed resistance to occupation. Any belligerent in Gaza is, per force, close to civilians, because there is no room for him to go elsewhere. Ignoring such asymmetries, Israel and its choir reason that there are no Gazan civilians. The implication is that everyone in Gaza is a legitimate target, in complete violation of the fundamental principle of distinction under IHL, and this is what the world observes today.
For Israel, this line of defence is not novel and it has used it to deflect responsibility for acts of vengeance in Lebanon, including the Qana massacres in 1996, and the brutal killing of up to 3,500 refugees in the Sabra and Shatila refugee camps in 1982.
From 2006, and in the multiple operations that Israel has conducted in occupied Palestinian territories, the Israelis have conflated the location of Hamas fighters within the densely populated strip with the intention to use the civilian populace as human shields.
While the UN-mandated Goldstone Report on Operation Cast Lead of 2014 found no indication of such intentionality, Israel’s defenders’ response was to argue that the condition of asymmetric warfare provides an inoperable terrain for upholding IHL protections: from powerful states battling adversaries employing urban guerilla tactics, calls are made for relaxing the measures of distinction and proportionality.
However, for civilian populations facing the onslaught of the most advanced weapons systems, there is no imaginable reason for such relaxation. Deviation from such norms proceeds not on account of insufficient means to engage in more targeted strikes, but is mostly a consequence of failing to define permissible and achievable military ends. High civilian casualties or collateral damage are the acceptable trade-off, by this logic, for keeping the citizen-soldiers of these powerful states out of harm’s way.
Today we stand at a crossroads, where international human rights law, humanitarian law and the law of war — jus ad bellum and jus in bello — are being stretched and twisted to breaking point, to enable the killing of Palestinians with minimum fuss.
Civic fissures and unrest around the world, and moves to intimidate or suppress academic freedom, the freedom of speech, and the freedom of association in advanced democracies, provide ample indications that this dissimulation of the unlawful into the normative is failing.
We do not follow this lead. Instead, we appeal to a law that we hope still stands, is still understood, and is still respected: the prohibition of the crime of genocide.
An ongoing Palestinian genocide
Israel has been engaging in actions that amount to ethnic cleansing in Palestinian territories since its establishment, notably by preventing the return of Palestinian refugees expelled or displaced since 1948.
Moreover, Israel’s expansion of settlements on Palestinian land constitutes a violation of the law of occupation, specifically Article 49 of the Fourth Geneva Convention, which prohibits the occupying power from transferring parts of its civilian population into the territory it occupies.
Additionally, the recent disproportionate and indiscriminate use of force by Israel in the form of killings and resulting bodily and mental harm to Palestinians is highly questionable under international law, as there is no apparent necessity for such actions.
Both necessity and proportionality, measured both in terms of the reaction to the initial use of force and its impact on the civilian population of the attacked party to the conflict, are recognised legal constraints on the use of force in international law. The current trajectory of Israel’s actions indicates that the intent requirement for bringing about the physical destruction, wholly or partially, of a national, ethnic, racial, or religious group, as defined in the Genocide Convention, is being met.
In this instance, the Palestinian population collectively meets the definitions of these distinct groups under the Convention.
The prohibition against genocide is a peremptory norm or jus cogens in international law: there are no exceptions to or excuses for it, and it supersedes any other international law that is not likewise peremptory.
Under the ‘Barcelona Traction’ case, the prohibition and punishment of genocide is also erga omnes, or an obligation to the comity of nations as a whole, and not to a particular nation or state that has been targeted. As a peremptory norm that is erga omnes, the prohibition against genocide allows any state to exercise extraterritorial jurisdiction to prosecute genocidal actors.
This is so even if those genocidal actors are not themselves a state or, in particular, a state party to the Genocide Convention, the Rome Statute, or any other relevant treaty. It is a crime that applies both in times of peace and war, and it is not subject to the principle of “nullum crimen sine lege” (“no crime without law”), which asserts that a person cannot or should not face criminal punishment unless the act was criminalised by law before they committed it.
The crime of genocide is defined identically in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and Article 6 of the Rome Statute of the International Criminal Court (1998). It has an intent requirement under both instruments: the “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”
The intent to target a portion of a group rather than the whole group suffices to establish this element. This has been clarified by the Yugoslav tribunal in both the Nikolic and Jesilic cases, as well as the persuasive authority of the 1982 UNGA resolution 37/123 D and findings of the UN Human Rights Commission, which highlighted Israel’s mass murder of refugees in Sabra and Shatila, Lebanon, as genocide.
In addition to intent, genocide also has an act requirement, which can be met with any of five actions against a recognised group or its members: killing; causing serious bodily or mental harm; inflicting conditions calculated to destroy in whole or part; imposing measures to prevent births; and forcibly transferring children to another group.
Under Article III of the Genocide Convention and Article 25 of the Rome statute, individuals can also be criminally charged for inciting, attempting, conspiring, or being complicit in genocide. In addition, the Rome Statute provides the ICC jurisdiction over three other crimes: crimes against humanity, war crimes, and the crime of aggression.
Crimes against humanity, defined in Article 7, overlap with genocide because they include “extermination” (7(b)); “deportation or forcible transfer” (7(d)); “persecution against any identifiable group … recognised as impermissible under international law” (7(h)); and “the crime of apartheid” (7(j)). Indeed, genocide is recognised as a specific category within the broader context of crimes against humanity.
The Genocide Convention triggers both criminal liability for genocidal acts and civil responsibility for failing to protect targeted groups. Genocide can be charged to both individual groups and states. While, as mentioned earlier, genocide can occur in peacetime and wartime, its elements do not change in international or non-international armed conflict.
However, under Article IX of the Convention, the ICJ does not have jurisdiction to hear a criminal prosecution of genocide — it is not a criminal court, but a court to hear interstate disputes or interpret international law. The ICJ can, however, determine under Article IX of the Convention whether a state bears responsibility for a genocide because it has violated its duties under the Genocide Convention.
These determinations are not criminal prosecutions and are accordingly decided under a “fully conclusive evidence” standard rather than the “beyond reasonable doubt” standard applied to crimes. Criminal prosecutions under Article VI of the convention are meant to occur in the affected states or specially constituted international tribunals, such as the ICC or the special tribunals of Rwanda and the former Yugoslavia.
Under Article 29 of the Rome Statute, a charge of genocide is never time-barred and, under Article 33, “following orders” is not a defence, since an order in furtherance of genocide is manifestly illegal. States can meet the intent requirement for failing to prevent a genocide under a lower standard, even if cannot be ascertained that they did not plan a genocide, so long as there is near certainty of genocidal intent by groups that the state has enabled or facilitated.
This was the case when Serbia and Montenegro were charged with enabling ethnic cleansing of Muslims by Bosnian Serbs. In this case, the ICJ determined that the massacre at Srebrenica by the army of the Republika Srpska in July 1995 amounted to an act of genocide. However, the Court ruled that, although Serbia and Montenegro were not held responsible under the Genocide Convention for genocide, conspiracy to commit genocide, or complicity in genocide, they were deemed responsible for the failure to prevent genocide in Bosnia.
We are hopeful that the prohibition against genocide will be used proactively by members of the international community to ensure that the atrocities we see today are named, remembered and condemned.
We are convinced that this, like the prevention and punishment of any genocide, is an unqualified good, not only for the Gazans that are left, but also for the global community generally. History has taught us as much.
The failure of international law?
Cynicism about international law is not only understandable but also widespread and persistent — the field is riddled with political compromise and the expediency of powerful actors. Few, if any, states have the coercive power to provide anything akin to the domestic policing of national laws on the international stage, and the ambitious plans for a UN-constituted multilateral force has never materialised. Compliance is mostly voluntary for powerful states and, as seen above, they have engineered novel interpretations of existing legal prohibitions, to ensure laxity of application.
However, it would be a mistake to see this as a complete failure of the whole corpus of international law. Many principles of international law evolved in the context of a world order defined by European imperialism, and even the right to self-determination of a people was codified well after national liberation movements had already succeeded in gaining independence from colonial rule.
Nonetheless, in the period after WWII, even against the structuring force of Euro-American hegemony, the principles of international law have also expanded in certain ways to reflect the concerns of states and people in the global South.
In the current world order, where more and more national governments are controlled by parties and persons who are not shy in identifying groups within their borders as threats to the nation-state, we have everything to gain from holding up the prohibitions against genocide as absolute.
Furthermore, the efforts of scholars and activists such as Rabea Eghbariah remind us that we do not have “the privilege to relinquish any legal tools available to name the crimes against the Palestinian in the present and attempt to stop them.”
For us, this means keeping an attentive eye on where international law has previously failed us but also safeguarding its capacity to address past and present acts of grave criminality.
The writers, Professors Uzair Kayani, Sikander Shah and Sadaf Aziz, belong to the faculty at the Shaikh Ahmad Hassan School of Law, Lahore University of Management Sciences (Lums)
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