“Let’s stop being fooled about Israel’s intentions in Gaza” – The Lasting Disaster of Ethnic Cleansing and the Risk of Complicity

Posted on January 9, 2024 by Mark Kersten

The following is a guest post by Thomas Obel Hansen and Felix Vacas Fernández. Felix is an Assistant Professor in Public International Law and International Relations at the Universidad Carlos III de Madrid (Spain). Thomas is the Maria Zambrano 2023-24 Distinguished Researcher with the Universidad Carlos III de Madrid (Spain) and a Senior Lecturer in Law with Ulster University Law School/ Transitional Justice Institute (UK).

A woman sits among the rubble in Gaza (Photo: EPA)

Three months into Israel’s military campaign in Gaza, public debate remains mainly focused on the daily disaster that this campaign has brought with it. In a way, that’s understandable because of the large-scale and systematic targeting of civilians and civilian infrastructure associated with a military campaign unparalleled in contemporary times both in intensity and level of disregard for international law. 

However, focusing primarily on the immediate violations and the suffering that comes with Israel’s actions runs the risk of distracting from lasting disaster of the potential ethnic cleansing of the Palestinian population in Gaza. In other words, the daily indiscriminate killing and pulverization of Gaza, as awful as it is, risks being the very means of achieving a more lasting objective consisting in ethnic cleansing, which in its own nature could amount to the crime against humanity of forcible transfer of the population, a crime set out in Article 7(1)(d) of the Rome Statute of the International Criminal Court (ICC).

The general failure of many to ‘see’ this crime unfolding before our eyes and understanding its full implications arguably has to do with how Western governments and media have generally sought to portray Israel’s campaign as ‘a hunt for Hamas’, a type of anti-terror campaign all too familiar in Western capitals. As countries in the West are now strongly encouraging Israel to take a more measured approach, public attention in the West is mainly focused on the methods – not the broader aims – of Israel’s military campaign in Gaza. When criticism has been levied by Western governments, it is on the manner in which Israel is conducting its military operations, not why it is doing so.

But one only needs to listen to what a litany of Israeli leaders say to understand that the overarching objective of the action taken is to fully destroy and empty Gaza of Palestinian citizens. What is being pursued involves the de-population of Gaza, and by extension an expansion of Israeli territory – or at least the areas under its control. 

Together with the ongoing expansion of settlements and the massive increase in settler violence in the West Bank, the ethnic cleansing ongoing in Gaza could amount to the completion of the Nakba involving the permanent displacement of the Palestine population out of Palestinian territories. If that happens, countries with the power to do so who failed to stop Israel would be liable, at least in moral and political terms and possibly also in legal terms through notions of complicity.

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Double standards on accountability must be called out and resisted, no matter who pushes them

Posted on December 4, 2023 by Mark Kersten
A Palestinian child walks past burned out cars in Hawara, West Bank (Photo: Reuters)

Victims and survivors of Hamas’ atrocities deserve justice. Victims and survivors of Israel’s atrocities deserve justice.

They deserve more than just rhetoric or pleas to stop the violence. They deserve accountability for the litany of well-documented crimes already committed.

These statements should not be controversial. But for some states and even some fair-weather international law and human rights advocates, any suggestion that alleged war crimes and crimes against humanity committed by Israel deserve independent and impartial investigation appears to be a bridge too far. 

Double standards must be resisted, no matter who or what claims them. International crimes do not warrant investigation because of where they perpetrated or who committed them. They warrant investigation because they were committed, because victims and survivors deserve accountability, and because siding with justice over impunity for mass atrocities is always – always – the right thing to do.

This is not about supporting one side or the other. Victims on both sides of the current conflict between Israel and Hamas want the ICC to investigate. Israeli families of the victims taken hostage by Hamas have requested an investigation by the Court over allegations that Hamas has committed genocide. Lawyers representing families in Gaza have also filed a request at the ICC asking it to investigate alleged genocidal acts by Israeli forces. On behalf of Palestinian groups and individuals, a widely respected human rights organization has launched a lawsuit against President Joe Biden for failing to act to prevent alleged genocide in Gaza.

Pressure on the ICC is growing. On 17 November, five states – South Africa, Bangladesh, Bolivia, Comoros, and Djibouti – officially referred the situation in Palestine to the ICC. It should be noted that the ICC Prosecutor already has jurisdiction in Palestine and opened an investigation into the situation there in 2021. As a result, the Prosecutor can investigate any alleged international crimes committed on Palestinian territory, including the West Bank and Gaza, and by any Palestinian factions, including Hamas, in Israel. Still, the referral of these five states indicates an expanding interest in supporting the Court’s work in the situation in Palestine, something that had not been nearly as apparent in recent years.

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The Currency of Diplomacy: A Speech Canada’s Commitment to International Law and Prosecuting International Crimes

Posted on November 30, 2023 by Mark Kersten

This week, I had the opportunity to speak before the House of Commons’ Standing Committee on Foreign Affairs and International Development in Ottawa. I spoke Canada’s piecemeal commitment to international law and to the prosecution of international crimes. I appeared alongside Professor Jennifer Welsh and Professor Adam Chapnik. The full video of the speech and the questions and answer period can be found here.

My remarks focused on Canada’s refusal to exercise universal jurisdiction over international crimes and its troubling position on accountability for atrocity crimes committed in Israel and Palestine. In case the speech of interest to readers, I have published it below.

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Thank you, Mr. Chair.

I want to speak to Canada’s commitment to a rules-based system in relation to the very currency of diplomacy: international law.

In particular, I will focus on Canada’s approach to prosecuting international crimes – war crimes, crimes against humanity, genocide, and the crime of aggression.

Canada has done a great deal to support accountability efforts in recent years.

Since 2022, Canada has consistently supported the prosecution of international crimes in Ukraine. With The Netherlands, Canada has taken Syria to the International Court of Justice over torture.

But many question why there are so many inconsistencies in Canada’s support for international law and accountability efforts.

I want to explore two questions I believe are instructive in relation to Canada’s position on prosecuting international crimes and Canada’s standing in the world.

First, what would Canada do if a mid-level Russian or Syrian war criminal, or a member of the Wagner Group entered Canada? 

As a signatory to the Geneva Conventions, Canada is obligated to investigate war crimes and prosecute them in its own courts. Canada’s diplomatic partners would expect it to prosecute, and not become a safe haven for war criminals.

Yet all too often Canada does nothing or only attempts to deport the alleged war criminal instead of prosecuting them. And if Canada did deport that person, it would seek zero guarantees that they would be held accountable in the country they were deported to.

In 2016, the Department of Justice released a report that stated over 200 perpetrators of international crimes reside in Canada. It has not prosecuted any of them. Canada has the laws to do it, the resources to do it, but it won’t do it.Unlike its allies, since the early 2010s, Canada has abandoned the use of universal jurisdiction.

My second question is: what would Canada do if the International Criminal Court issued arrest warrants for senior Hamas leaders and those responsible for the atrocities committed on 7 October? There is a real prospect that this will happen in the coming weeks. What would Canada say to the Israeli families of hostages who have asked the ICC to investigate Hamas’ war crimes? What would it tell Palestinians victims and survivors?

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Posted in Canada, Corruption, Gaza, Hybrid Courts, Hybrid Tribunals, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Transnational Organized Crime | Leave a comment

Will justice ever be realized? Uncertainties for survivors of conflict-related gender-based violence as Liberia awaits the results of runoff presidential elections

Posted on November 16, 2023 by Guest Post Admin

The following is a guest-post by Kelsey Rhude and Yah Vallah Parwon. Kelsey is final year PhD candidate at the Irish Centre for Human Rights in the University of Galway, conducting research on transitional justice and peacebuilding in post-conflict Liberia. Yah is an African Feminist. She currently serves as the Country Director for medica Liberia with a longstanding career as a women’s human rights professional and attorney addressing issues related to social work, gender, conflict, and human rights. The views and opinions expressed in this publication are solely those of the authors and do not reflect the official position or stance of medica Liberia. This piece is a product of personal reflections and represents the authors’ individual perspectives on the issues of justice and accountability in Liberia. The authors assume full responsibility for the content, and the organization disclaims any liability or endorsement of the views presented herein. Furthermore, the authors do not express support for any political candidate, and this publication should not be construed as an endorsement of any political figure or party.

(Photo: EPA)

The year 2023 marks a crucial milestone in Liberia’s postwar journey towards justice and accountability. Firstly, it marks the 20-year anniversary since the end of the Liberian civil war. And secondly, Liberia is conducting its fourth post-war general and presidential elections this year.

With runoff elections having concluded on Tuesday between incumbent President George Weah and former Vice President Joseph Boakai, vexing questions on the country’s direction for justice remain at the forefront. Against the backdrop of lingering impunity, Liberia stands at a crossroads: in the absence of reparations for survivors of conflict-related violence, accountability for war crimes and crimes against humanity, and consolidated efforts towards reconciliation, will justice ever be realized?

From 1989-2003, Liberia experienced a brutal period of armed conflict and instability, resulting in widespread violence against civilians and destruction of infrastructure. Gender-based violence (GBV) was especially pervasive throughout the Liberian armed conflict. The World Health Organization estimates that ‘between 61% and 77% of women and girls in Liberia were raped during the war’, in addition to reports of other forms of direct GBV, including sexual violence, sexual slavery, abductions, forced pregnancies, and forced terminations.

In 2003, warring factions signed the Accra Comprehensive Peace Agreement (CPA) which ended armed conflict and set the parameters for Liberia’s transition from war to peace. The CPA led to the establishment of a Truth and Reconciliation Commission(TRC), mandated to determine the root causes of conflict, to establish a platform for truth and reconciliation, and to provide highly anticipated recommendations for justice and accountability.

After collecting statements from more than 20,000 Liberians, the TRC released its Consolidated Final Report in June 2009. Among its many recommendations, the Commission comprehensively addressed issues relating to GBV, despite its failure to provide a robust definition of GBV that goes beyond the perfunctory conflation of gender and women.  

The TRC report highlights experiences of both direct and indirect GBV perpetrated against women and girls, as well as men and boys (though the experiences of men and boys are only marginally captured). The Commission produced a dedicated appendix on‘Women and the Conflict’ where it addressed rooted gender inequalities, direct experiences of GBV, and issues relating to the economic, social and cultural impact of conflict on women in Liberia. These contributions are important because they broaden the criteria for what qualifies as GBV in armed conflict. 

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A Lifeline for Gaza: Lifting the Blockade and Securing a Humanitarian Sea Corridor

Posted on November 10, 2023 by Mark Kersten
Since 2007, Israel has enforced a blockade on Gaza, which human rights groups have repeatedly found to breach international law (Photo: Gaza)

Food is running out. Surgeries and births are taking place without anaesthesia. Fuel shortages mean the only cancer hospital has closed. Without the basics needed to survive, the majority of Gazans are stuck while Israeli bombs fall and Hamas missiles are launched around them.

Tens of thousands of Gazan civilians have so far moved into Southern Gaza. But Israel bombs those areas too. Some civilians choose to stay home or in the hospitals where might still get some care. Some are unable to leave. Others surely think: Why leave if the bombs might fall on them no matter where they go?

Those under siege in Gaza cannot enter Israel, which refuses to allow them into the country. Egypt has only permitted a tiny number of mostly foreign nationals into the country through a border point that has also been bombed.

But take a look at the map. The Gaza Strip includes some 40km of coastline. Could it be a lifeline for aid to coming into Gaza and way for civilians to escape the continuous bombing by the Israeli Defence Forces? 

The answer is yes, but only if it is organized and implemented by a coalition of states and humanitarian agencies not directly involved in the war in Gaza.

As luck would have it, the government of Cyprus – the European country closest to Gaza – is currently negotiating with European and Arab states to create a “humanitarian sea corridor”. The idea, in a nutshell, is for ships carrying aid to sail from the Cypriot port of Limassol directly to the shores of Gaza. There, United Nations personnel would receive and distribute the aid to civilians, hospitals, clinics, and so on. 

If you are wondering how this plan not already in place, the answer is simple, if devastating: since 2007, Israel has enforced an air, sea, and land blockade on the Gaza Strip in an attempt to control everything and everyone that comes in and out of Gaza. On 9 October, the blockade was ‘upgraded’ into a “total blockade” and “complete siege” of Gaza. At the time, Israel’s Defence Minister Yoav Gallant notoriously announced: “No electricity, no food, no water, no gas – it’s all closed.”

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A Missing Pillar: Witness Protection and Transitional Justice in Africa

Posted on November 6, 2023 by Guest Post Admin

Emmanuel Ayoola joins JiC for this guest-post on the importance of witnesses protection n the field of transitional justice, and how to bolster its use in African contexts. Emmanuel is a human rights lawyer and a transitional justice practitioner. He was previously an Activism Officer with Amnesty International. He currently works with the Africa Transitional Justice Legacy Fund as a Grant and Programs Officer.

A witness testifies during proceedings at the International Criminal Court (Photo: ICC / CPI)

Witnesses are critical to justice-seeking mechanisms under transitional justice processes. What happens then if those witnesses are not protected? Needless to say, justice suffers. Justice continues to suffer in Africa as a result of weak or non-existent witness protection systems. To ensure justice for victims of conflict and mass atrocities, Africa must first safeguard the protection of witnesses. 

The development of transitional justice processes can be likened to the process of building a house – a house with several structural columns. Just like a house, transitional justice has pillars. The United Nations identifies the pillars as truth, justice, reparation, memorialization, and guarantees of non-recurrence. These pillars which are interrelated, work together for the sustainability of transitional justice processes. 

Just as a house cannot stand without pillars or other forms of structural support, in the same vein, it is impossible for transitional justice to thrive without all of its pillars; if one is absent or weak, the others are weakened as a result. However, for a long time, several attempts have been made to build transitional justice processes in Africa without all of its pillars. The results have been predictable – collapsing disappointments. 

Effective witness protection has often been a missing link. Truth and justice are key for transitional justice that cannot be built without robust witness protection systems. At the very core of truth-seeking processes and justice-seeking mechanisms lies the indispensable ingredient of witness testimony. The judicial mechanisms of transitional justice processes require witness testimony in the pursuit of justice. Witnesses provide evidence that will assist in holding perpetrators of human rights violations and atrocities accountable. In fact, survivors’ testimonies have been referred to as the backbone of transitional justice processes. It is essential and arguably indispensable even where other forms of evidence are available. Therefore where witnesses are not protected, they may be discouraged from giving evidence and thereby justice becomes far-fetched.

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The War in Gaza: International Law is Nothing if it is not Applied

Posted on November 3, 2023 by Guest Post Admin

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.

(Photo: BBC)

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.” 

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Posted in Gaza, Guest Posts, ICC Prosecutor, International Court of Justice, International Court of Justice (ICJ), International Criminal Court (ICC), International Humanitarian Law, International Law, Israel, Palestine, Palestine and the ICC | Tagged | 14 Comments

If not the ICC, then who? The need for an international investigation into atrocities in Israel and Palestine

Posted on October 26, 2023 by Mark Kersten

A version of this article was first published at Al Jazeera, here.

Damage seen following the explosion at the al-Ahli Arab Hospital in Gaza (Photo: BBC)

The devastating explosion of al-Ahli Arab Hospital in central Gaza, in which the Palestinian Health Ministry says at least 500 people were killed, shows exactly why the International Criminal Court (ICC) must investigate atrocities committed in Israel and Palestine. With allegations levied from all directions, the ICC may just be the best option to provide an impartial and independent assessment of the bombing and, critically, who bears responsibility for it.

There is little doubt that the destruction of the al-Ahli Arab Hospital is a war crime, no matter who is ultimately responsible. Under the international law that governs conduct in armed conflict – International Humanitarian Law – civilians and medical professionals can never be targeted by military attacks, whether they are committed intentionally or recklessly – “when an attacker consciously disregards a substantial and unjustifiable risk of harm to civilians or civilian objects”.

Even if a warning is issued to those in a hospital or any other civilian infrastructure, patients and medics who cannot leave or who choose not to leave, still cannot be targeted. Warnings are not a magic wand that does away with the legal protections that civilians enjoy. No military advantage can be lawfully gained by bombing a hospital where civilians sought refuge, believing it was safe.

Someone is responsible. The question is who? Who is responsible for this massive loss of life, for this war crime? How are we supposed to know amid so many competing accounts and the misinformation that characterises this war?

In the immediate aftermath of the bombing, Gazan officials maintained that Israeli forces had bombed the hospital. There was some confusion as reports from sources close to Israeli authorities suggested that the Israeli military had bombed the hospital in an attack against Hamas, in an apparent admission that they had bombed it. Some observers may have been quick to assume Israeli forces were responsible because of past precedence, including reports from the World Health Organization that in the 2009 Gaza War, Israeli forces damaged more than half of the 27 hospitals and 44 medical clinics in Gaza. The Israeli military, however, denied any involvement and insisted that Islamic Jihad had misfired rockets and destroyed the hospital. Some states have backed Israel up Israel’s version, but many remain unconvinced.

Under the Geneva Conventions, Israel is required to investigate war crimes, including any committed by its own forces. Under international humanitarian law, states have an obligation to investigate and, where necessary, prosecute anyone who has committed a war crime. The problem is that states which are themselves implicated in hostilities and alleged atrocities are rarely able or willing to impartially investigate their own.

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Posted in ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine | 6 Comments

Who’s Afraid of an International Investigation? The al-Al-Ahli Arab Hospital blast and atrocities in Israel and Palestine deserve an international probe

Posted on October 24, 2023 by Mark Kersten
The BBC among others have sought to investigate the blast at the Al Ahli Hospital in Gaza

International investigations play a critical role in establishing responsibility for war crimes. Amidst contradictory and competing claims over wrongdoing that characterize conflicts, international investigations can help us see through the fog of war and pinpoint not just what happened, but who is responsible. The current conflict between Israel and Hamas calls for such an effort.

Since the explosion at the al-Ahli Arab hospital, a panoply of media, civil society, and state examinations have concluded who they believe was responsible for the tragedy. There is no doubt some rushed to conclusions too quickly. But without a proper, well-supported international investigation into the alleged crimes committed in Israel and Palestine, people will be left with conflicting and contradictory findings. That serves exactly no one, not Israel, not Palestine, and certainly not victims or survivors.

The war between Israel and Hamas has already seen a heartbreaking amount of human suffering. Reacting to the hostage taking, murders, shelling of civilian areas, siege warfare, and denial of humanitarian aid (all of which may be violations of international law), states have called for adherence of international humanitarian law and for accountability.

The leaders of the United States, United Kingdom, Canada, Italy, and Germany collectively chimed in with a statement reiterating “their support for Israel and its right to defend itself against terrorism and called for adherence to international humanitarian law, including the protection of civilians.” Yet not one of those states supports an international investigation into violations of international humanitarian law.

Following the devastating loss of life at the al-Ahli Arab hospital, Canadian Prime Minister Justin Trudeau announced: “It is imperative that innocent civilians be protected and international law upheld. Together, we must determine what happened. There must be accountability. There must be accountability.” 

But accountability is not just a word. It requires a commitment to impartial investigations and to supporting institutions able to hold responsible perpetrators of international crimes. Most Western states have never made that commitment to victims and survivors in Israel or Palestine. They should change course and do so.

Under international humanitarian law – also referred to as the laws of armed conflict – states involved in wars have an obligation to investigate alleged war crimes, including those committed by their own forces. The problem is, they are notoriously bad at it. States at war have an incentive to minimize their own responsibility for atrocities, especially when popular support for a war is at stake. This is true even of democracies.

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Posted in Canada, Commission of Inquiry, Germany, International Court of Justice (ICJ), Israel, Palestine, Palestine and the ICC, United Kingdom, United States | Tagged | 24 Comments

The World Court and the Spectre of Genocide: The ICC is not the only Hague court with jurisdiction over Gaza

Posted on October 16, 2023 by Guest Post Admin

Shane Darcy joins Justice in Conflict for this post on the International Court of Justice and its role in Gaza. Shane is a professor of law and the Deputy Director of the Irish Centre for Human Rights in the School of Law at National University of Ireland, Galway. 

People in Gaza walk following an evacuation order by Israeli forces (Photo: EPA)

The Chief Prosecutor of the International Criminal Court (ICC) has broken his silence on the mass killing of civilians and the taking of hostages by Hamas and the indiscriminate bombing of civilians and civilian property in Gaza by Israeli forces. Karim Khan has confirmed to the media that such atrocities fall within the Court’s jurisdiction. While his mandate “applies to crimes committed in the current context”, he has not followed the approach of his predecessor, Fatou Bensouda, who issued formal statements on more than one occasion expressing her grave concern and emphasising the Court’s jurisdiction.

Successive ICC chief prosecutors have not treated the situation in Palestine with any great sense of urgency. Palestine’s entreaties to the Court began as far back as 2009, but no arrest warrants have been issued, even though Fatou Bensouda considered there was a reasonable basis to believe that international crimes have been committed. The Pre-Trial Chamber confirmed the Court’s territorial jurisdiction over Gaza and the West Bank, including East Jerusalem in 2021. And Karim Khan explained this week that crimes by Palestinians, “including on the territory of Israel”, are also within the jurisdiction of the Court, even though Israel is not a state party.

While the ICC may have jurisdiction, the Prosecutor ultimately remains the gatekeeper when it comes to taking investigations and cases forward. Judicial approval is needed at various stages of proceedings, but if the Prosecutor decides not to take a situation forward, there is little that States, civil society, victims, or even the judges can do. 

The Office of the Prosecutor has acted very quickly in other situations – in Ukraine and Libya, for example – but in the context of Palestine, the slow rate of progress is at odds with the rationale of ending impunity for international crimes. It is important to emphasise that in addition to giving rise to individual criminal responsibility, acts that amount to war crimes, crimes against humanity, genocide or aggression can also lead to State responsibility. This is the domain of the International Court of Justice (ICJ). 

The World Court and Genocide

Where jurisdiction exists, States can initiate contentious proceedings before the ICJ. Certain United Nations bodies can seek advisory opinions from the Court on legal questions (as the General Assembly did earlier this year on the legal status of Israel’s occupation of Palestinian territory). Unless States have accepted the ICJ’s compulsory jurisdiction, and just over a third have, jurisdiction has to be grounded in an existing international treaty.

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Posted in Gaza, Genocide, International Court of Justice (ICJ), International Criminal Court (ICC), International Criminal Justice, Israel, Palestine | Tagged | 6 Comments