The possibility of committing genocide in Gaza by Israel in the light of the Al-Aqsa storm operation (October 7, 2023)

Document Type : Research Paper

Author

Ph.D. in international law

Abstract

The Al-Aqsa Storm operation on October 7, 2023, carried out by the military branch of Hamas, namely Al-Qassam, represents an unprecedented military action in the longstanding Israeli-Palestinian conflict. While Hamas's actions may be justified based on the occupation and the right to self-determination, Israel's response to this operation has been extensive, devastating, and unprecedented, to a degree that cannot be considered legitimate defense. The killing of thousands of innocent civilians, the use of prohibited weapons, the destruction of medical centers and hospitals, the collapse of the health system, the all-encompassing siege of Gaza, and the lack of access to vital goods such as food, water, and medicine have led to widespread famine. The destruction of homes and the forced displacement of the people of northern Gaza to other areas are among the blatant atrocities committed by Israel, which could be assessed as the actus reus element of the crime of genocide.
This article seeks to address whether the actus reus and mens rea elements of genocide (specific intent) have been met in light of recent Israeli military operations against the Palestinians (the people of Gaza). Through a descriptive and analytical examination of official reports, doctrine, and international jurisprudence, it concludes that, based on Israel's actions, especially the killing of members of the group, both the actus reus and mens rea elements of the crime of genocide in the Al-Aqsa Storm operation on October 7, 2023, have been fulfilled in a manner that establishes grounds for the jurisdiction of the International Criminal Court. Consequently, the International Criminal Court could exercise its jurisdiction in this case.
The people of Gaza are an integral part of the Palestinian nation and government, united by a common and historic goal and struggle for liberation from occupation and colonization. Their shared nationality, ethnicity, and religion, as well as their continuity of goals, align them as a group protected under the Genocide Convention of 1948 and the Statute of the Court (6).
In addition to the deaths of Palestinians resulting from Israel's military actions, they face immediate risks of starvation, lack of water, and disease due to Israel's enduring blockade, inadequate aid distribution, and extensive restrictions on essential resources caused by the destruction of Gaza's infrastructure due to Israeli attacks. The coordinated and consistent statements of Israeli authorities, operationalized through military orders, serve as compelling evidence of intent.
The pattern of Israeli attacks and actions against the Palestinian population in Gaza since October 7, 2023, including collective punishment, forced disappearances, and the use of famine, water, electricity, and fuel cuts as tools of war, along with public statements by high-ranking Israeli government and military officials, collectively indicate Israel's genocidal intent. The behaviors, circumstances, and presumptions used by ad hoc international criminal tribunals to establish the specific intent of genocide align with the actions of Israeli authorities and can serve as a legal basis for potential proceedings against them.
Currently, the court's prosecutor, Karim Khan, has emphasized the importance of investigating the situation in Gaza, ensuring justice for the victims, and upholding the rule of law. While the prosecutor's actions have been articulated in a series of speeches and not as official actions, no preventive statement regarding Gaza has been issued by the court prosecutor. Member states of the Court, such as South Africa, Bangladesh, Djibouti, Bolivia, and the Comoros Islands, have recently referred the situation in Gaza to the Court, citing genocide as one of the concerns. However, due to the cautious approach of the prosecutor, an official decision regarding genocide does not appear imminent. Nonetheless, a provisional order issued by the International Court of Justice in the case of South Africa against Israel concerning the genocide of the people of Gaza, based on the Convention on the Prohibition and Punishment of Genocide, could potentially alter the court prosecutor's cautious stance.

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References

Abedini, A., Bahri Khiyavi, B. (2022). Litigation Against Israel for Genocide in the International Court of Justice: possible Scenarios. Islamic Law Journal, 19(74), 77-111. [In Persian]
Arashpour, A., Haghseresht, M. (2018). Cultural Destruction from The Point of View of International Law With Emphasis on Israeli Actions in the Occupied Territories. Public Law Studies Quarterly, 48(2). [In Persian]
Azari, H. (2006). Defining genocide in the light of ICTY and ICTR decisions. Legal Research, 5 (10), 55-84. [In Persian]
Boyle F. (2013), The Palestinian Genocide by Israel before the Kuala Lumpur war crimes Tribunal, August 21-24, 2013. Available at: papers.ssrn.com/so13/papers.cfm?/abstract-id=2339254. At 3.
Efesoy, C., (2023), Israeli officials accused of inciting war crimes in Gaza with violent rhetoric, available at: https://www.aa.com.trm,18 October 2023, accessed December 17. 2023
Goldberg, D.T. (1999) The semantics of Race, in Racism, Edts, Martin Bulmer and John Solomos, Oxford University Press.
Guterres, A., (2023) Press Conference by Secretary-General António Guterres at United Nations Headquarters, Available at:
      https://press.un.org/en/2023/sgsm22021.doc.htm, accessed November 10.
Guillaumin, C. (1999) The changing face of race, in Racism, Edts. Martin Bulmer and John Solomos, Oxford University Press.
Jovanovic, A. (2021). Actus reus and “mens rea international criminal delagenocide. Politics & Security, Vol. 5, No. 3, pp. 3-10
Kesic, I., (2023), Why is Netanyahu invoking ‘Amalek’ rhetoric to justify the genocide of Palestinians, available at: https://www.presstv.ir, 6 November 2023, accessed November 20.2023
Kittichaisaree, K. (2001). International Criminal Law. Translated by: Yousefian, B., Esmaily, M. Tehran. Samt Publication (2012). [In Persian]
Mac Allister, K. (2008). Applicability of the crime of apartheid to Israel, Al Majd journal, No. 38, December.
Michael, R. (2014). UN’s Investigation of Israel Should Go Beyond War Crimes to Genocide, The real news, July 27, 2014. Available at: http://genocidewatch.net/2014/07/28/9791/. Accessed October 5. 2023
Momeni, M. (2014). International Criminal Law, Tehran The SD Institute of Law, Research and Study. [In Persian]
Zakerhossein, M. H. (2021). Pre- Trial Procedure of the International Criminal Court Vol. 1: Situation Selection Process, Tehran The SD Institute of Law, Research and Study. [In Persian]
Rezazadeh, H., Ranjbarian, A. (2019). Collective Recognition of Palestine Membership in the United Nations. Public Law Studies Quarterly, 49 (1), 77-95. [In Persian]
Sadeghi, M. R. (2022). International Criminal Justice System: Structure, Deficiencies and challenges, Tehran The SD Institute of Law, Research and Study. [In Persian]
Weber, M. (1978). Economy and Society eds. Guenther Roth and Claus Wittich, trans. Ephraim Fischof, vol 2 Berkely University of California Press.
 
Websites
https://www.middleeastmonitor.com (2023), al aqsa flood dealing with the aftermath/, accessed November 10.2023

https://sarajevotimes.com (2023), Israeli PM tried to justify the Killing of Palestinians: Remember what our Bible says, 29 October 2023, Accessed November 15.2023

https://www.ohchr.org (2023), Gaza is ‘running out of time’ UN experts warn, demanding a ceasefire to prevent genocide 02 November 2023, accessed December 20.2023
https://www.ohchr.org (2023), Gaza: UN experts call on the international community to prevent genocide against the Palestinian people, 16 November 2023, accessed November 20.2023
https://www.icc-cpi.int (2023), Elements-of-Crimes.pdf, accessed October 22.2023

https://www.icc-cpi.int (2023), Statement of ICC Prosecutor Karim A. A. Khan KC from Cairo on the situation in the State of Palestine and Israel, 30 October 2023, Accessed November 10, 2023

www.hrwstf.org (2023), Fact Sheet Major Genocide of the 20 and 21 Centuries, accessed December 15. 2023
https://www.who.int (2023), Conflict in Israel and the occupied Palestinian territory, accessed December 10. 2023

https://reliefweb.int (2023), FIDH Resolution on Israel’s unfolding crime of genocide and other crimes in Gaza and against the Palestinian People, accessed December 20. 2023

https://www.newarab.com (2023), Israeli minister Amichai Eliyahu says nuclear attack on Gaza is 'an option, 5 November 2023, accessed November 20. 2023
https://www.aa.com.tr (2023), whats happening in gaza tantamount to genocide international law shows/3062150, accessed December 17. 2023

https://www.jordannews.jo (2023), Gallant likens Palestinians to animals, orders complete siege, 9 October 2023, accessed December 5. 2023

https://reliefweb.int (2023), Urgently investigate inhumane treatment and enforced disappearance of Palestinian detainees from Gaza, accessed December 10. 2023

https://reliefweb.int (2024), Hostilities in the Gaza Strip and Israel - reported impact, 15 January 2024 at 23:59, accessed January 16. 2024

https://www.icc-cpi.int (2023), Referral Palestine Final, 17 November 2023.pdf, accessed January 20. 2024
https://dppa.un.org (2024 ), US  vetoes resolution gaza which called immediate humanitarian ceasefire, accessed January 20. 2024.
https://opiniojuris.org (2024), The icc prosecutors double standards in the time of an unfolding genocide, accessed January 15. 2024.
https://www.theguardian.com (2023), Uk government challenged over icc inquiry into israels conduct, accessed January 15. 2024.
https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-palestine (2019),Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction, 20 December 2019. Accessed October 10. 2023
https://www.icc-cpi.int (2022), Situation in Ukraine, accessed October 25. 2023
https://www.un.org (2023), UN Secretary-General, Statement attributable to the Spokesperson for the Secretary-General – on the Middle East (4 December 2023), Accessed 15 December 2023
https://twitter.com (2023), Interview with Itamar Ben-Gvir on Channel 12, 11 November 2023, https://www.youtube.com/watch?v=2yRl-cc-D3w
[10:30 onwards]. Translated by Quds News Network, @QudsNen, Tweet (7:28 pm, November 12, 2023), Accessed November 22. 2023
https://news.un.org (2023), Nowhere and no one is safe' in Gaza, WHO chief tells Security Council, 10 November 2023, Accessed November 20, 2023
https://www.itv.com (2023), Israelis president says gazans could have risen up to fight hamas, Accessed October 14. 2023
https://time.com (2023), Is What’s Happening in Gaza a Genocide? Experts Weigh In, Accessed November. 2023  
https://news.un.org (2023), Gaza: Aid access to north entirely blocked as war escalates in the south (4 December 2023), Accessed December 10. 2023  
 
Documents
ICC, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’ pre- trial chamber I, 5 February 2021.
ICTR, Prosecutor v. Kambanda, Judgment and Sentence, ICTR-97-23-S, 4 September 1998.
ICTR, The Prosecutor v. Alfred Musema Case No. ICTR-96-13-A, Trial Chamber I, Judgement and Sentence, 27 January 2000.
ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998.
ICTR, Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgment, Trial Chamber, 27 Jan. 2000.
ICTY, Prosecutor v. Krstic, Judgment, IT-98-33-T, 2 August 2001.
ICTY, Case No. IT-98-33-A, Judgment, Appeals Chamber, 19 Apr. 2004
ICTR, the prosecutor v. Jean Kambanda, Case no.: ICTR 97-23-S, September 1998.
ICTR, 96-3-T, Rutaganda Judgement; RU-3-306-ENG; Draft as of 27, September 1999.
ICTR, Prosecutor v. Kayishema and Ruzindana, Judgment, ICTR-95-1-T, 21 May 1999.
ICTR, Prosecutor v. Ntakirutimana et al. Case No. ICTR-96-10-A and ICTR-96-17-A, Judgment, Appeals Chamber, 13 Dec. 2004.
ICTY, Prosecutor v. Krstic’, Case No. IT-98-33-T, Judgment, Trial Chamber, 2 August 2001
ICTY, Stakic (IT-97-24-T), Judgment, 31 July 2003.
ICTY, The prosecutor v. Goran Jelisic, T. ch, 14 December 1999
Presidency, Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I (‘Presidency Decision’), Annex I, 24 May 2018, ICC-01/18-1-AnxI.
ICJ reports, Advisory Opinion of 28 May 1951, ICJ Reports 1951
A report submitted to the Committee on the Elimination of Discrimination against Women, Violence against Palestinian Women, 33rd session - July 2005.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of 11 July1996, ICJ Reports 1996 (II).
Case concerning Armed Activities on the Territory of Congo, Jurisdiction of the Court and Admissibility of the Application (Democratic Republic of Congo v. Rwanda), Judgement of 3 February 2006
CERD, General Recommendation VIII, Identification with a particular racial or ethnic group (Art.1, par.1 & 4)(Thirty-eighth session, 1990).
Convention on the prevention and punishment of the crime of Genocide, 9 December 1948.
Proceedings instituted by South Africa against Israel on 29 December 2023 Request for the indication of provisional measures Public hearings to be held on Thursday 11 and Friday 12 January 2024, No. 2024/1, 3 January 2024.
Robinson, The Genocide Convention: A Commentary, 60, 63–64. Cited with approval by the ILC, Code of Crimes against the Peace and Security of Mankind, UN Doc. A/51/332 (1996).
Secretary generals report pursuant to paragraph 2 of resolution 808(1993) of the security council, 3 may 1993, S/25704 1993.
Secretary-General of the United Nations, ‘Rome Statute of the International Criminal Court, Rome, 17 July 1998, State of Palestine: Accession’, 6 January 2015, C.N.13.2015. TreatiesXVIII.10 (Depositary Notification).
United Nations War Crimes Commission, ed., History of the United Nations War Crimes Commission and the Development of the Laws of War (London: Her Majesty’s Stationery office, 1948.

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