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1. Article 7 of the Rome Statute
Crimes against humanity are gross and violent actions in opposition to a human being’s dignity, and fundamental values. Article 7 of the Rome Statute of the International Criminal Court (Rome Statute) has laid out what actions constitute these crimes.[1]
Israel’s gross commission of crimes against Gaza falls under Article 7. On 11.21.2024, the International Criminal Court (‘ICC’) issued arrest warrants for Israel’s Prime Minister Netanyahu and Defence Minister Gallant for breaching Article 7 (crimes against humanity, of murder, persecution and other inhumane acts) and specific war crimes under Article 8 of the Rome Statute.[2] Thus, it becomes appropriate to analyse Israel’s atrocities on Gaza.[3]
Apart from each crime’s distinct material elements, the two elements that exist in each crime of Article 7 are as follows: “The conduct was committed as part of a widespread or systematic attack directed against a civilian population. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population (mental element)“[4] where ‘widespread’ as concluded in Bemba and Katanga and Ngudjolo Pre-Trial Chambers[5] is “an attack carried out over a large geographical area or an attack in a small geographical area against a large number of civilians” and systematic, as explained in Katanga and Ngudjolo and the Gbagdo Pre-Trial Chambers,[6]refers to “the organised nature of the acts of violence and the improbability of their random occurrence”.
It is evident from the facts stated below that murders were committed against a large number of Gazans under either a large or small geographical area, for instance, hospitals, refugee camps, and places of residence. Further, the acts committed were systematic since they were strategically organised and were not a random occurrence as seen in the conduct of deportation and imprisonment, where large-scale Gazans were forcefully displaced and detained, and torture, where specific torturous acts were committed. Lastly, knowingly preventing medical supplies (other inhumane acts) also account for systematic acts.
Further, under Article 30 of the Rome Statute (7), for the above-stated mental element of each crime to be met, there are two requirements: intention and knowledge. It will be evident from the facts stated below that the atrocities committed have been specifically and strategically directed at the civilians of Palestine to harm them, meeting the intention element. Further, as leaders directing the military operations, they could not have been ignorant of the devastating civilian harm caused by their orders. Their deliberate conduct confirms actual knowledge, meeting the knowledge criteria. Apart from these two elements, the distinct mental and material elements of each crime are discussed.
2. Murder
Apart from the above-stated elements, the element of murder (Art. 7(1)(a)) as listed in Elements of Crimes is as follows: the perpetrator killed one or more persons. In October 2023, under the leadership of the two individuals, Netanyahu and Gallant, Israel released airstrikes that hit a densely populated refugee camp, killing at least 50 Palestinians.[8]On 02.29.2024, Israel opened fire on crowds of Palestinians assembled to collect flour in the southwest area of Gaza, killing 112 people.[9] Israel also did not hesitate to attack hospitals. In April 2024, Israeli soldiers conducted a siege on Al Shifa Medical Complex in Gaza, carrying out a massacre that claimed the lives of at least 22 patients.[10]
Though the ICC Chamber took note of the individuals’ conduct from 08.10.2023 to 05.20.2024, Israel has persistently carried out the atrocities under the authority of Netanyahu and Gallant (who was in office till 11.05.2024)[11] till date. For example, in December 2024, bombardment resulted in further civilian casualties. According to the Ministry of Health in Gaza, at least 45,059 Palestinians were killed between 10.07.2023 and 12.17.2024.[12]
All the above-stated events resulted in large-scale casualties of Palestinians. Israel’s armed forces directing attacks at places where civilians reside, heal and take refuge at, all under the leadership of Netanyahu and Gallant, demonstrate a clear commission of the crime against humanity of murder. Israel has not once but multiple times on several different occasions since October 2023 proven themselves to be breaching Article 7(1)(a) of the ICC statute.
3. Persecution
The crime against humanity of persecution is governed by Article 7(1)(h) of the Statute, elements of which include, severe deprivation of human rights contrary to international law, where persecution was done against an identifiable group or collectively, on ethnic, racial, cultural, religious, gender, national, political or other grounds universally impermissible under international law, in connection with any act referred to in this paragraph or any other crime of the Rome Statute.
The Chamber has shed light on Israel’s conduct in depriving Palestinians of their essentials like food, water, and medical supplies and of impeding humanitarian aid, but it has also remained silent on many acts that Israel has engaged in that fall under Article 7 of the Statute. Despite numerous authoritative testimonies and reports of the suffering caused, many of Israel’s crimes that are blatant violations of the Rome Statute have gone unpunished by the ICC. It becomes crucial to list these atrocities.
In establishing the fourth element of the crime against humanity of persecution, atrocities committed specifically on Gazans by Israel—those not explicitly mentioned by the Chamber—that align with the rest of the elements under persecution are in connection with the crimes referred to in Article 7, such as deportation (Art. 7(1)(d)), imprisonment (Art. 7(1)(e)), and torture (Art. 7(1)(f)).
3.1. Deportation
Concerning deportation (underArt. 7(1)(d)), the elements consist of forced deportation or transfer of one or more persons to another State or location through expulsion or other coercive acts, without grounds permitted under international law, where such persons were lawfully present in the area from which they were so deported and the perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
Israel has numerous times forcefully displaced Palestinians through coercive acts. May 2024 report of the UNICEF stated that around 3000 Palestinians have been displaced to Area C and East Jerusalem due to residence destructions during Israel’s military operations, accounting for the coercive acts. Also reported that as of May 2024, 75% of the Palestinian population has been internally displaced.[13]
Further, International Humanitarian Law, for example, permits displacement for specific reasons, such as civilian security or imperative military needs (Article 49 Geneva Convention IV).[14]
Pre-Trial Chamber II in Ntaganda[15] considered that the acts of displacement were not justified since no precautionary measure was taken before the displacement was carried out, and no reasons linked to military operations were given. The same applies in our case as Israel, without regard to the protection of civilians, directed attacks, and coercing them to leave their place of residence. There is also no military justification for the massive, deliberate, and forced displacement that has occurred as a consequence of the humanitarian crisis resulting from Israel’s unlawful conduct, as was also seen in Stakic.[16]
Lastly, Palestinians who were forcefully displaced were/are citizens who belong to the State of Palestine, and they were displaced by Israel from their own homes, their rightful and lawful place of residence in Palestine, accounting for awareness of the factual circumstances that establish the lawfulness of such presence.
3.2. Imprisonment
The elements of the crime against humanity of imprisonment (Art. 7(1)(e)), are as follows: imprisonment or otherwise severe deprivation of physical liberty of one or more persons, the gravity of which was in violation of fundamental rules of international law, and where the perpetrator was aware of the factual circumstances that established that gravity.
The facts stipulated here satisfy the first element. Since 10.07.2023, Israeli forces have detained over 2,200 Palestinians according to the Palestinian Prisoners’ Club, and according to Israeli human rights organization HaMoked, between 01.10.2023 and 01.11.2023, the total number of Palestinians held in administrative detention, without charge or trial, rose from 1,319 to 2,070.[17] In April 2024, according to the Addameer Prisoner Support and Human Rights Association, about 9,500 Palestinians from Gaza and the West Bank were in Israel’s captivity.[18]
Given the facts, Israel is infringing on multiple human rights of Palestinians, including Article 3 (right to life, liberty and security)[19] and Article 9 (protection against arbitrary arrest, detention and exile) of the UDHR,[20] thus meeting the second element.
Moreover, Israel’s military systematically and forcefully captured Palestinians without any trial or conviction while being cognizant of the fact that they were infringing on the rights of Palestinians, demonstrating how the leaders and forces were aware of the factual circumstances that established the gravity of their actions.
3.3. Torture
As for the crime against humanity of torture, the elements are such: infliction of severe physical or mental pain upon one or more persons, such person/persons were in custody of the perpetrator, and such pain did not arise only from, and was not inherent in or incidental to, lawful sanctions.
The August 2024 report details widespread abuse, torture, sexual assault, and rape under grossly inhumane conditions, resulting in the deaths of at least 53 Palestinians over the past 10 months. Numerous testimonies describe victims being confined in cage-like enclosures, tied and blindfolded, stripped naked, deprived of food, water, and sleep, and subjected to electrocution of genitals, blackmail, and cigarette burns. Victims also testified to dog attacks and exposure to deafening music until their ears bled.[21]
The countless humiliating, brutal and unlawful activities undertaken by Israel account for the severe mental and obvious physical pain the victims have suffered, establishing the first element.
The second and third elements are also fulfilled, as the arbitrary arrest practices against Palestinian victims have been established under the crime against humanity of imprisonment and being detained without trial or conviction makes their suffering not inherent or incidental to lawful sanctions.
Regarding the remaining elements of persecution as a crime against humanity, Israel has unquestionably violated Palestinians’ fundamental rights under international law, including, the right to life, security and liberty (Art. 3 of the UDHR),[22] protection against arbitrary arrest, detention, or exile (Art. 9 of the UDHR),[23] freedom of movement (Art. 13 of the UDHR)[24] and freedom from torture and degrading punishment (Art. 5 of the UDHR).[25]
Additionally, the facts clearly show that the crimes perpetrated by Israel were committed directly and collectively against Palestinians as a whole, establishing the second element. Moreover, the acts are done on a large-scale basis, as evident from the systematic and widespread commission of the acts, proving that the acts are done on national grounds, to eradicate an entire nationality. These acts are specifically targeted at Palestinians, demonstrating how the acts are done on ethnic grounds as well.
Lastly, the aforementioned explication shows that there is a clear link between the acts of Israeli military forces and the specific offences of Article 7 of the Statute, thus fulfilling the fourth element of the crime against humanity of persecution.
4. Other Inhumane Acts
The elements of other inhumane acts as a crime against humanity (under Art. 7(1)(k) are as follows: infliction of great mental or physical suffering or injury, using an inhumane act. Such an act was of a character similar to any other act referred to in paragraph 1 of this article, and the perpetrator was aware of the factual circumstances that established the character of the act.
The elements of this crime can also be seen in the acts committed under the crime against humanity of persecution, namely, deportation, imprisonment and torture, and any act of a similar nature to these crimes. However, the Chamber in Prosecutor v Muthaura et al[26]considered whether conduct could be charged as another crime against humanity; its charging as other inhumane acts would be impermissible, hence, these acts cannot fall under both these crimes.
Regarding the Chamber’s ruling, the two leaders were responsible for knowingly preventing or limiting medical supplies and in doing so causing great physical and mental suffering to Palestinians as because of this, doctors were forced to operate without anesthesia and adequate means of sedation, which amounts to the crime against humanity of other inhumane acts.[27]
5. Conclusion
The elements of each crime stated have been proven effectively, however, the reports of the acts discussed are limited to one year and a few months. We should not forget how Palestine has been a subject to these atrocities for over 75 years now, since the Nakba in 1948.[28] Throughout the years, Israel has been consistent with its commission of heinous crimes against humanity against innocent Palestinian civilians. It becomes important that we understand the legal complexities that revolve around this issue to have a better insight into who the oppressor is and who the oppressed are.
Author:
Name: Huda Fatima
Designation: Research Associate, RCIL & HR
Contact: hu************@***il.com
[1] Crimes Against Humanity, Article 7 of the Rome Statute
[2] Crimes Against Humanity, Article 8 of the Rome Statute
[3] International Criminal Court, Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant (Press Release, 21 November 2024) <https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges>
[4] Elements of Crimes, International Criminal Court
[5] Prosecutor v. Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 83; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07-717, Decision on the Confirmation of Charges, 30 September 2008, para. 395).
[6] Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04 01/07-717, Decision on the Confirmation of Charges , 30 September 2008, para. 394, citing Kordić and Čerkez, ICTY A. Ch., 17 December 2004, para. 94, which is citing Prosecutor v. Kunarac et al., IT-96-23 and 23/2, ICTY A. Ch., 12 June 2002, para. 94; Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11 01/11-656-Red, 12 June 2014, para. 223).
[7] Mental Element, Article 30 of the Rome Statute
[8] Nida Al Mughrabi and Emily Rose, ‘Israel strikes dense Gaza camp, says it kills Hamas commander’, Reuters (October 31 2023) <https://www.reuters.com/world/middle-east/hamas-says-it-fires-israeli-troops-pressing-gaza-ground-assault-2023-10-31/>
[9] United Nations Human Rights, Office of the High Commissioner, UN experts condemn ‘flour massacre’, urge Israel to end campaign of starvation in Gaza (5 March 2024) <https://www.ohchr.org/en/press-releases/2024/03/un-experts-condemn-flour-massacre-urge-israel-end-campaign-starvation-gaza>
[10] UN Office for the Coordination of Humanitarian Affairs, Al-Shifa Medical Complex witnesses one of the largest massacres in Palestinian history [EN/AR] <https://reliefweb.int/report/occupied-palestinian-territory/al-shifa-medical-complex-witnesses-one-largest-massacres-palestinian-history-enar>
[11] ‘Israel’s Benjamin Netanyahu fires Defence Minister Yoav Gallant’, Al Jazeera (5 November 2024) <https://www.aljazeera.com/news/2024/11/5/israels-benjamin-netanyahu-fires-defence-minister-yoav-gallant>
[12] UN Office for the Coordination of Humanitarian Affairs, Humanitarian Situation Update #247 | Gaza Strip [EN/AR] (17 December 2024) <https://reliefweb.int/report/occupied-palestinian-territory/humanitarian-situation-update-247-gaza-strip>
[13] UNICEF, Humanitarian Situation Report: Escalation (1 May 2024) https://www.unicef.org/media/156451/file/SoP-Humanitarian-SitRep-Escalation-01-May-2024.pdf
[14] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949) art 49
[15] Prosecutor v. Ntaganda, ICC PT. Ch. II, ICC-01/04-02/06-309, 9 June 2014, para. 68
[16] Prosecutor v. Stakić, IC TY A. Ch., 22 March 2006, para. 287
[17] ‘Israel/OPT: Horrifying cases of torture and degrading treatment of Palestinian detainees amid spike in arbitrary arrests’ Amnesty International (November 8 2023) <https://www.amnesty.org/en/latest/news/2023/11/israel-opt-horrifying-cases-of-torture-and-degrading-treatment-of-palestinian-detainees-amid-spike-in-arbitrary-arrests/>
[18] ‘Palestinian Prisoner’s Day: How many are still in Israeli detention?’ Al Jazeera (17 April 2024) <https://www.aljazeera.com/news/2024/4/17/palestinian-prisoners-day-how-many-palestinians-are-in-israeli-jails>
[19] Right to life, liberty and security of person, Article 3 of the Universal Declaration of Human Rights
[20] Protection against arbitrary arrest, detention, or exile, Article 9 of the Universal Declaration of Human Rights
[21] United Nations Human Rights Office of the High Commissioner, Israel’s escalating use of torture against Palestinians in custody a preventable crime against humanity: UN experts (Press Release, 5 August 2024) <https://www.ohchr.org/en/press-releases/2024/08/israels-escalating-use-torture-against-palestinians-custody-preventable>
[22] Art.3, UDHR n 19
[23] Art. 9, UDHR n 20
[24] Freedom of movement, Article 13 of the Universal Declaration of Human Rights
[25] Freedom from torture and degrading punishment, Article 5 of the Universal Declaration of Human Rights
[26] Prosecutor v. Mathaura et al., ICC PT. Ch. II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012, para. 269
[27] ICC, Situation in the State of Palestine (Press Release, 21 November 2024) n 3
[28] ‘Nakba of 1948 and Today Are Not Separate Events, but Ongoing Process of Palestinian Displacement, Replacement, Speakers Tell Panel, Urging Immediate Ceasefire in Gaza’ United Nations, Meeting Coverage and Press Releases (17 May 2024) <https://press.un.org/en/2024/gapal1467.doc.htm>