Chantal Meloni joins JiC for the blog post on the situation in Israel and Gaza and the need for international law to be applied. Chantal Meloni is International criminal law professor at the University of Milan and Senior legal advisor for international crimes accountability with the European Center for Constitutional and Human Rights of Berlin (ECCHR). She also consults with the Palestinian Centre for Human Rights (PCHR) and represents victims in the Situation Palestine before the International Criminal Court.

With the unprecedented attention dedicated to international criminal law over the Russian aggression in Ukraine, many activists, scholars and lawyers have concluded that international law is a living instrument. Its principles are still valid even at times of war and collapse of politics and diplomacy. In light of the unspeakable horrors committed by Hamas on 7 October and the ensuing response by Israel, international law’s mechanisms must be reactivated once again. Civilians are paying the price of atrocities while the basic principles of international humanitarian law – distinction, proportionality, and necessity – are being blatantly violated. 

International law is nothing if it is not applied. Courts must be able to address its violations. The international community has witnessed the support that both the International Court of Justice (ICJ) and the International Criminal Court (ICC) rightly received in the Ukraine situation from states not involved in the conflict there. Forty-three State Parties referred the situation to the ICC, and deployed funds and resources on an ad hoc basis to support the Court. The issuance of arrest warrants in relation to war crimes, including one for President Vladimir Putin, came relatively quickly.

Why is the same not happening with respect to the situation in Israel/Palestine? For those who follow the issue closely, the answer may not be surprising. But it is helpful to consider this question in detail in light of past and recent events.

As early as twenty years ago, several States opposed the very possibility of the ICJ delivering an advisory opinion regarding the consequences of Israel’s construction of a wall requested by the General Assembly. Some European governments declared that they “firmly believe[d] that the Court should refuse to answer the question posed by the General Assembly resolution of December 8, 2003, concerning the consequences arising from the construction of the wall by Israel, the Occupying Power, in the Occupied Palestinian Territories, including East Jerusalem and its surroundings.” 

The ICJ nevertheless asserted its jurisdiction, and the 2004 Advisory Opinion established some key points, including that the wall, as built and conceived by Israel (in annexation of occupied Palestinian territory) was contrary to international law and should be dismantled. The Court drew clear lines to balance Israel’s legitimate security demands and the protection of the human rights of the occupied Palestinian population. The ICJ’s concluded, with respect to the obligations of third states in the face of the illegal situation created by Israel, that: 

All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention. (ICJ, Advisory Opinion, July 9, 2004, § 163).

Not only has the ICJ’s opinion not been followed. In subsequent years, Israel has continued to expand the wall, while Palestinian territory has continued to be annexed even through the relocation of Israel’s own population. UN sources estimate that 700,000 Israeli settlers are living in the occupied West Bank, including in East Jerusalem. These illegal practices have accelerated dramatically under the government of Benjamin Netanyahu and have continued for decades without concrete opposition from many States. In addition to the USA, European states continue to reward Israel economically, even in defiance of the so-called “human rights clause” contained in Union’s bilateral agreements, through privileged trade treaties. Moreover, several European States, as well as of course Israel and the USA, voted in December 2022 against the General Assembly’s new request to the ICJ for an opinion on the legal consequences of Israel’s occupation of the Palestinian territories, which has now been scheduled for February 2024.

The situation with respect to the ICC is similar. As early as January 2009, following the so-called operation Cast Lead on the Gaza Strip, the Palestinian Authority submitted a declaration of acceptance of the Court’s jurisdiction under Article 12(3) of the Rome Statute. Palestine  sought to activate international investigations and prosecutions into the serious crimes committed by both sides, as thoroughly documented in dozens of independent reports including a high-profile Commission established by the UN. Among other things, the “Goldstone report” concluded that the blockade of Gaza, imposed in its most extreme form since 2007, following the Hamas takeover, constituted collective punishment of the civilian population. UN bodies and the International Committee of the Red Cross (ICRC) have expressed the same view. My colleague Gianni Tognoni and I documented the whole process in a book entitled “Is there a Court for Gaza?” published in 2012 by Springer. More than a decade later, that question remains relevant. 

Due to the uncertain status of Palestine as a State, for many years it was not possible to initiate any investigation. The objection was later overcome by the ICC itself, following the UN General Assembly Resolution of November 29, 2012, which elevated Palestine to a non-member observer State. In January 2015, again following a devastating operation on Gaza, so-called Protective Edge, Palestine ratified the Rome Statute, becoming a State party. Huge pressure was put on Palestine (not to ratify the Statute) and on the ICC (not to accept  Palestine’s membership in the Court and not to investigate the situation). Some States, including the UK, made their expectations known in public statements. Others did so at the diplomatic level, arguing that Palestine seeking to activate international criminal justice mechanisms was an obstacle to the peace process. Other States parties to the ICC, such as Germany (beside Australia, Austria, Brazil, Canada, Czech Republic, Hungary and Uganda), intervened in the proceedings before the ICC as Amici Curiae, objecting to the Court’s jurisdiction over the alleged grave crimes under preliminary investigation in the situation of Palestine. They basically argued for a state of exception. As noted with regard to Germany, this position ignores that by then, Palestine had already been accepted as a State party to the ICC.

Despite this pressure, the ICC finally opened its investigation in March 2021. No visible progress has been achieved since then, but it is expected that in light of the grave circumstances there will be some acceleration in the investigatory activities in The Hague. Indeed, on Sunday the ICC Prosecutor Karim Khan delivered a powerful speech from Egypt, after having reached the Rafah border crossing. He was unable to enter Gaza or Israel. At the 2022 ASP, the Prosecutor had made public his will to visit Israel and Palestine, but so far Israel has not allowed the visit. In order to be fair and balanced, the Court will have to show to be able to effectively act not only with respect to the grave actions committed by members of Hamas but also by the Israeli military and political apparatus, in Gaza and in the West Bank.

Frustration among Palestinian human rights defenders has been growing over time and has become increasingly explicit over the past year. There is a widespread feeling of abandonment, even among those who advocated for international justice mechanisms, and overcome untold internal and external risks in order to support the work of the ICC. Lawyers like Raji Sourani, the recipient of countless international awards and accolades and the director of PCHR, who has dedicated his life to advocating for the rule of law and against violence, are under the incessant bombings in Gaza. 

In his speech at the UN Security Council last week, Antonio Guterres, the UN Secretary General in no way justified Hamas’ actions, which prima facie amount to grave war crimes and possible crimes against humanity; they must be condemned without ambiguity as such. At the same time, Guterres affirmed the need, in this moment, to uphold the rule of law. He also recalled the human dignity and the rights of the Palestinian people that have been denied for too long. Ignoring the demands of an entire people based on the right to self-determination, a principle of jus cogens, and systematically violating their human rights, including their right to life and human dignity, has never been a path to achieving peace. On the contrary, this has created the perfect conditions for extremism and fundamentalism to take root and grow stronger, culminating in the most recent events. The long-awaited application of international law in the situation Israel/Palestine can help change these conditions.