On November 21, 2024, Pre-Trial Chamber I of the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, former Israeli Defense Minister Yoav Gallant, and Hamas military commander Mohammed Diab Ibrahim Al-Masri (also known as “Deif”), for a number of war crimes and crimes against humanity. The war crimes allegations against Netanyahu and Gallant involve using starvation as a method of warfare and failing to prevent Israeli forces from attacking civilians. The war crimes allegations against Al-Masri involve ordering or failing to prevent murder, attacking civilians, cruel treatment, torture, taking hostages, outrages upon personal dignity, rape, and sexual violence. These allegations could not be more serious. As the Court’s press releases underscored, “conduct similar to that addressed in the warrant of arrest appears to be ongoing.”
This essay examines a narrow and technical point regarding the war crimes alleged, namely the Chamber’s classification of the armed conflicts occurring in Gaza and its identification of the applicable law. I will say a few words about the crimes against humanity alleged in closing.
According to the Chamber, the war crimes allegedly committed by Netanyahu and Gallant occurred in the context of an international armed conflict between Israel and Palestine, while the war crimes allegedly committed by Al-Masri occurred in the context of a non-international armed conflict between Israel and Hamas. The distinction is important because the ICC’s Rome Statute gives the Court subject matter jurisdiction over the war crime of starvation as a method of warfare only when it occurs in the context of and is associated with an international armed conflict. An amendment extending the Court’s jurisdiction over the war crime of starvation in non-international armed conflicts has not yet been ratified by Palestine. Other war crimes limited by the Rome Statute to international armed conflicts include attacking civilian objects; excessive incidental death, injury, or damage (disproportionate attacks); and using protected persons as shields. It is therefore worth dwelling on this aspect of the Chamber’s decision. In my view, the Chamber’s approach and conclusion are basically correct, but might be strengthened in some respects.
The Chamber’s Reasoning
The actual decision to issue arrest warrants is not publicly available, but the Court’s press release summarizes the Chamber’s reasoning as follows:
The Chamber found reasonable grounds to believe that during the relevant time, international humanitarian law related to international armed conflict between Israel and Palestine applied. This is because they are two High Contracting Parties to the 1949 Geneva Conventions and because Israel occupies at least parts of Palestine. The Chamber also found that the law related to non-international armed conflict applied to the fighting between Israel and Hamas. The Chamber found that the alleged conduct of Mr Netanyahu and Mr Gallant concerned the activities of Israeli government bodies and the armed forces against the civilian population in Palestine, more specifically civilians in Gaza. It therefore concerned the relationship between two parties to an international armed conflict, as well as the relationship between an occupying power and the population in occupied territory. For these reasons, with regards to war crimes, the Chamber found it appropriate to issue the arrest warrants pursuant to the law of international armed conflict.
Let us unpack that reasoning. Israel and Palestine are High Contracting Parties to the 1949 Geneva Conventions, to which Palestine acceded in 2014. Under Common Article 2, the Geneva Conventions apply “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” As the Chamber found, “Israel occupies at least parts of Palestine.” It follows that the Geneva Conventions apply and regulate the relationships between Israel and Palestine, and between Israel as an occupying power and the civilian population under occupation, including in Gaza.
At the same time, “the law related to non-international armed conflict applied to the fighting between Israel and Hamas.” The military wing of Hamas is an organized armed group which fights on behalf of Hamas, a non-State actor. It does not fight on behalf of the State of Palestine, which renounced armed struggle long ago. Protracted armed violence between Israeli armed forces and the military wing of Hamas therefore constitutes an “armed conflict not of an international character” under Common Article 3 of the Geneva Conventions. Grave breaches of Common Article 3 are war crimes under Article 8(2)(c) of the Rome Statute, including several of the war crimes charged against Al-Masri.
Crucially, the Chamber found that the use of starvation was directed “against the civilian population in Palestine, more specifically civilians in Gaza.” Accordingly, this conduct “concerned the relationship between two parties to an international armed conflict, as well as the relationship between an occupying power and the population in occupied territory.”
The Chamber’s approach makes sense. When an occupying power fights an armed group in occupied territory, much of its conduct will inevitably have some connection or ‘nexus’ with both the occupation and the fighting. To determine which law applies to a specific act, the analysis should start (though not end) by looking at whether the act is directed against the armed group subject to the law of non-international armed conflict, against the civilian population protected by the law of international armed conflict, or both. This will help to determine whether the relevant conduct “took place in the context of and was associated with” an international armed conflict, a non-international armed conflict, or both. On this approach, attacks directed by Israeli forces against Palestinian civilians under occupation plainly fall under the law of international armed conflict and constitute war crimes under Article 8(2)(b) of the Rome Statute.
As Tom Dannenbaum has argued, the use of starvation was directed against the population of Gaza as a whole, which remains a civilian population under occupation despite the presence of Hamas fighters, and seriously violates the law of international armed conflict. Alternatively, the use of starvation was directed at both civilians and Hamas fighters, much like an indiscriminate attack is directed at both civilians and military objectives. In the latter case, the law of international armed conflict would protect the civilians under occupation, while the law of non-international armed conflict would remove the protection of Hamas fighters. Either way, the use of starvation seriously violates the law of international armed conflict and constitutes a war crime under Article 8(2)(b) of the Rome Statute.
The ICC Prosecutor argues that starvation was used as a method of warfare “as a means to (i) eliminate Hamas; (ii) secure the return of the hostages which Hamas has abducted, and (iii) collectively punish the civilian population of Gaza, whom they perceived as a threat to Israel.” As explained above, starvation as a means to eliminate Hamas is directed either against the civilian population as a whole, which remains civilian despite the presence of fighters, or against both civilians and fighters without distinction. Starvation as a means to pressure Hamas to release hostages is immediately directed against civilians, intentionally using them and their suffering as a means to achieve a further aim. Plainly, starvation as a means to collectively punish a civilian population is directed against that civilian population.
Later in the same press release, the Chamber refers to “Israel’s obligations under international humanitarian law or to ensure that the civilian population in Gaza would be adequately supplied with goods in need.” This sounds like a reference to Article 55 of the Fourth Geneva Convention, which places on the occupying power “the duty of ensuring the food and medical supplies of the population.” Intuitively, if an occupying power starves civilians under occupation, in violation of the law of occupation, then the nexus between the starvation and the occupation is plain and the conduct takes place in the context of and is associated with an international armed conflict.
Applications
The ICC Prosecutor has said that his office “is continuing to pursue its independent and impartial investigation in the situation in the State of Palestine with focus. We are taking forward additional lines of inquiry in areas under the Court’s jurisdiction, which include Gaza and the West Bank, including East Jerusalem.” The Chamber’s decision gives some indication of which other war crimes the Prosecutor may investigate.
On the Chamber’s approach, willful killing of Palestinian civilians, torture or inhuman treatment, and extensive destruction of civilian property not justified by military necessity would constitute war crimes in international armed conflict under Article 8(2)(a) of the Rome Statute. Similarly, attacking civilian objects, including buildings dedicated to religion and education as well as hospitals, would constitute war crimes in international armed conflict under Article 8(2)(b) of the Rome Statute. So would the direct or indirect transfer of Israeli civilians into occupied territory as well as the deportation or transfer of Palestinian civilians within or outside occupied territory. The list goes on. These acts are all directed by the occupying power at the civilian population under occupation, and therefore take place in the context of and are associated with an international armed conflict.
Similarly, using Palestinian civilians as human shields would also constitute a war crime in an international armed conflict under Article 8(2)(b)(xxiii) of the Rome Statute. While such conduct is ultimately intended to gain a military advantage over Hamas, it is immediately directed at the Palestinian civilians forcibly used as a means to obtain a military end.
Finally, directing an attack against Hamas fighters and facilities with knowledge that the attack will cause harm to Palestinian civilians which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated would also constitute a war crime in an international armed conflict under Article 8(2)(b)(iv) of the Rome Statute. It is true that the direction of such attacks establishes a strong nexus with the non-international armed conflict between Israel and Hamas. At the same time, the disproportionate effect of such attacks on Palestinian civilians under occupation establishes a strong nexus with the international armed conflict between Israel and Palestine and with the relationship between the occupying power and the civilian population under occupation. In my view, both branches of law apply. The law of non-international armed conflict applies to make Hamas fighters and facilities lawful targets, while the law of international armed conflict applies to protect Palestinian civilians from disproportionate harm.
Alternatives
The Panel of Experts that advised the ICC Prosecutor reported in May that the law of international armed conflict applies to Israel’s conduct in Gaza for three reasons: that Palestine is a State, and an international armed conflict arises if a State uses force against a non-State actor on the territory of another State without the latter’s consent; that Israel and Palestine are High Contracting Parties to the Geneva Conventions, and an armed conflict between two High Contracting Parties is international in character; and that Israel is the occupying power in Gaza, and the law of international armed conflict applies in cases of military occupation. The Chamber appears not to rely on the first ground, perhaps out of reluctance to pronounce on Palestine’s statehood under general international law unless strictly necessary to resolve the legal issues before it.
In its recent advisory opinion, the International Court of Justice (ICJ) found that the Fourth Geneva Convention applies to Israel’s conduct in the Occupied Palestinian Territories for a different reason, namely that Israel’s occupation is the result of an earlier armed conflict between High Contracting Parties – the 1967 war between Israel, Jordan, and Egypt (para. 96). It is not clear why the Chamber took a different approach, but I will offer one guess. Common Article 3 of the Geneva Conventions applies to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” It is possible that the Chamber thought it important to establish that war crimes committed entirely within Palestine are grave breaches of the Geneva Conventions and fall under Article 8(2)(c) of the Rome Statute.
Objections
The Rome Statute gives the Court jurisdiction over two categories of war crimes: grave breaches of the Geneva Conventions under Article 8(2)(a); and other serious violations of the laws and customs applicable in international armed conflict, including the war crimes of starvation and attacking civilians, under Article 8(2)(b). While the Chamber’s reasoning clearly establishes the Court’s jurisdiction over Article 8(2)(a) crimes, some may challenge the Court’s jurisdiction over Article 8(2)(b) crimes.
First, footnote 34 to the ICC’s Elements of Crimes provides that “[t]he term ‘international armed conflict’ includes military occupation” with respect to “each crime under article 8(2)(a).” No similar footnote appears regarding Article 8(2)(b). Some may argue that cases of military occupation are international armed conflicts under Article 8(2)(a) but not under Article 8(2)(b). The basic problem with this line of argument is that Article 8(2)(b) includes one war crime that can only occur during military occupation, namely “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.” Several other war crimes under Article 8(2)(b) practically require sustained control over territory while others are all too common during military occupation. It therefore appears that military occupations are international armed conflicts under both Articles 8(2)(a) and 8(2)(b) and establish the Court’s jurisdiction over both categories of war crimes.
Second, any armed conflict between High Contracting Parties to the Geneva Conventions is governed by those Conventions, and this suffices to establish the Court’s jurisdiction over war crimes under Article 8(2)(a) of the Rome Statute. At the same time, attacking civilians and starvation as a method of warfare are not prohibited by the Geneva Conventions, but instead by their Additional Protocols and by customary international law. Palestine has acceded to the Additional Protocols, but Israel has not. Some may argue that the Court’s jurisdiction over war crimes under Article 8(2)(b) therefore depends on whether the customary law of international armed conflict applies to Israel’s conduct in Gaza.
The Chamber might respond to such a challenge in several ways. The Chamber might track the ICJ’s approach: Israel’s military occupation of Palestine resulted from an international armed conflict between Israel, Jordan, and Egypt and is therefore governed by the customary law of international armed conflict. While hostilities between the three States ended decades ago, the civilians in occupied territory retain their legal protections from attacks and starvation directed at them. Notably, the ICJ found that Israel’s “control of the land, sea, and air borders” and “restrictions on movement of people and goods” are “key elements of authority” that establish Israel’s ongoing obligations under the law of occupation (para. 93). Abuse of these key elements of authority to starve civilians establishes a clear nexus between the alleged conduct and the occupation. The alleged conduct directed against civilians therefore constitutes a serious violation of the laws and customs applicable in international armed conflict and falls under Article 8(2)(b)(xxv) of the Rome Statute. This is probably the legally safest approach.
Alternatively, the Chamber might follow the proposal of the Panel of Experts: Palestine is a State under general international law, and the partial or total military occupation of the territory of Palestine by Israel establishes an international armed conflict between them which is governed by the customary law of international armed conflict. Palestine has a permanent population, a defined territory, a government, and the capacity to enter into relations with other States and with international organizations. Limitations on the effectiveness of its government are the result of Israel’s policies, practices, and continued presence, which the ICJ found unlawful. Palestine is also recognized as a State by the overwhelming majority of the international community, including by the overwhelming majority of ICC States Parties. Finally, the General Assembly determined “that the State of Palestine is qualified for membership in the United Nations in accordance with Article 4 of the Charter of the United Nations and should therefore be admitted to membership in the United Nations.” (Para. 1). Only States are qualified for U.N. membership. The State of Palestine would be a full member of the United Nations today, but for the lone veto of the United States in the United Nations Security Council. While I agree with this line of argument, the Chamber may remain reluctant to pronounce on Palestine’s statehood.
Finally, the Chamber might follow the International Committee of the Red Cross’ position that the customary law of international armed conflict applies to armed conflicts between States and non-State entities with international legal personality, including international organizations and interstate military alliances. Palestine undoubtedly possesses international legal personality and represents the people of the Occupied Palestinian Territories on the international plane. While Palestine has renounced armed struggle, its security forces would be governed by the Geneva Conventions and their Additional Protocols should direct hostilities arise with another High Contracting Party. Logically, they should be governed by the customary law of international armed conflict should direct hostilities arise with a State that is not a Party to the Additional Protocols, including Israel. Conversely, the use of force against Palestine, including the military occupation of its territory, should be governed by the customary law of international armed conflict whether Palestine is a State or not.
I should note that others might challenge the Chamber’s finding that the conduct of Hamas’s military wing toward Israeli forces and Israeli civilians is exclusively governed by the law of non-international armed conflict. Normatively, I fully support applying the more protective rules governing international armed conflict, and the corresponding war crimes under the Rome Statute, to the conduct of Hamas’s military wing as well. Doctrinally, I have yet to find a solid legal basis for this position.
Conclusion
This essay has focused on the ICC Pre-Trial Chamber’s finding that there are reasonable grounds to believe that Netanyahu and Gallant are responsible for war crimes under Article 8(2)(b) of the Rome Statute while Al-Masri is responsible for war crimes under Articles 8(2)(c) and 8(2)(e). The Pre-Trial Chamber also found that there are reasonable grounds to believe that Netanyahu, Gallant, and Al-Masri are responsible for crimes against humanity as part of widespread and systematic attacks against the civilian populations of Gaza and Israel, respectively. This finding makes some of the technical issues discussed above less practically important.
Among other things, the Chamber found “reasonable grounds to believe that the lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children due to malnutrition and dehydration,” constituting the crime against humanity of murder. The Chamber went on to find that “the population was targeted based on political and/or national grounds [and] therefore found that the crime against humanity of persecution was committed.” These findings do not depend on any nexus to an armed conflict, whether international or non-international.
International criminal law, by its nature, looks backward to establish responsibility for past crimes. Our most urgent task is to look forward, to prevent future crimes and bring continuing crimes to an end. In this respect, the Chamber’s most important finding is that “conduct similar to that addressed in the warrant of arrest appears to be ongoing.”