What is the land-for-peace principle some hope will resolve conflict in the Middle East?

In short: The U.S. testified at the United Nations’ court on Feb. 21, saying that Israel should not be “legally obligated to immediately and unconditionally withdraw” from occupied Palestinian territory. Instead, they said the International Court of Justice should work within the “land-for-peace” framework when issuing their legally nonbinding opinion. The “land-for-peace” principle grew out of a set of U.N. resolutions from the mid-20th century, and it asserts that, if Israel withdraws from the territory it occupies, the surrounding Arab countries will recognize Israel as a sovereign nation, leading to peace in the region.

What did the U.S. say at the ICJ’s hearing on Israel’s occupation?

The U.N. General Assembly approved a resolution at the end of December 2022 that condemned Israel’s behavior in the Palestinian territories and asked the ICJ, the U.N.’s main judicial body, to issue an advisory opinion on the legality of Israel’s decades-long occupation of the territories.  

What is an advisory case?

The ICJ handles two types of cases. Contentious ICJ cases are focused on issues between countries, and the court’s rulings on them are legally binding. Advisory cases arise when a U.N. agency (like the General Assembly) asks the court for a legal opinion. Advisory opinions are typically not legally binding, though exceptions can be made if the ruling pertains to an established U.N. convention.

After several months of preliminary written arguments, the ICJ began oral proceedings in the case on Feb. 19. During these hearings, which are expected to last about a week, representatives of 52 countries and three international organizations are making statements to the court about how they think it should rule.

The U.S. testified to the court on Feb. 21, saying that the ICJ should not try to “resolve” the conflict by issuing a broad advisory opinion, but instead use the land-for-peace framework to issue an advisory ruling that will “support and promote final realization of peace and stability,” which the U.S. believes is best accomplished through a two-state solution.

What is the two-state solution?

The two-state solution would create an independent Palestinian state alongside the independent nation of Israel. The U.S. has supported a two-state solution for decades, and President Joe Biden has said he supports the creation of Israeli and Palestinian states based on pre-1967 borders. Multiple Arab nations have made the creation of a Palestinian state a prerequisite to official diplomatic relations with Israel.

After oral proceedings conclude on Feb. 26, the court will begin its deliberation on whether they believe Israel’s occupation of the Palestinian territories is in breach of international law.

What is the land-for-peace principle?

At the center of the land-for-peace principle is the idea that, should Israel withdraw from the territory it occupies, peace will be made by the surrounding Arab countries in return.

two men standing
Israeli soldiers stand at the destroyed bridge at Geneffa looking over the Egyptian bank of the Suez Canal, June 1967. (Photo: Mario Torrisi  / AP)

According to the U.N. Economic and Social Commission for Western Asia, “The issue of land is at the core of the Palestinian-Israeli conflict,” dating back at least as far as the 1917 Balfour Declaration that called for “the establishment in Palestine of a national home for the Jewish people.” Between 1922 and 1937, many Jewish people, particularly Eastern Europeans fleeing the Nazis, moved to what was then Palestine, which the League of Nations had put under British control in 1922. The Palestinian population pushed back against this and wanted independence.

In 1947, the U.N. attempted to solve this conflict and passed a resolution that proposed splitting the territory then known as Palestine into two states – one comprised mostly of Palestinian Arabs and the other made up mostly of Jewish people. But before this resolution could be enacted, conflict between Arab and Jewish groups broke out, and, in 1948, Israel declared itself a sovereign nation. A war ensued between Israel and its neighbors, and during the war Israel expanded its borders to include 77% of what was considered Palestine before 1947.

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Israel and the Golan Heights

Syria tried and failed to retake the Golan Heights in 1973, and after a cease-fire was signed between Israel and Syria, a U.N. peacekeeper force moved into the region. Israel annexed the Golan Heights in 1981, and the territory’s ownership is now in dispute. Though the international community has not generally recognized the Golan Heights as part of Israel, the Trump Administration did.

The Camp David Accords — a set of two agreements between Egypt and Israel signed in 1978 and brokered by President Jimmy Carter — are generally considered to be the first example of "land for peace” in action. The accords created a more permanent peace between the two countries through an agreement that Israel would withdraw from the Sinai Peninsula, Egypt and Israel would resume diplomatic relations, and Gaza and the West Bank would become fully autonomous states within five years of the agreement.

However, not all of the stipulations of the Camp David Accords were carried out. Israel still occupies Gaza and the West Bank, although the Palestinian Authority was established as a partial governing system for the Palestinian territories as part of the later Oslo Accords in 1993.

As of this reporting, only five Arab states have official diplomatic ties with Israel.

What do the U.S., Israel, and Arab countries say about the land-for-peace principle? 

The U.S. has long been a proponent of the land-for-peace principle, which was reflected in their recent ICJ testimony.

The Arab League, an alliance of Arab nations, has also expressed interest in a land-for-peace solution. In 1967, for instance, the League signed the Khartoum resolution, which included what have been called the “three noes”: no peace, recognition, or negotiations with Israel while Israel occupies the Palestinian territories. These principles were endorsed again in 1982 and 2002, although some Arab nations have established official relations with Israel since. Before the Oct. 7 Hamas attack and Israel’s ensuing “complete siege” on Gaza, Saudi Arabia made the land-for-peace principle a necessary tenet of diplomatic relations between the two countries.

soldiers standing
U.N. troops guard tents where Israeli and Egyptian chiefs of staff are meeting to discuss the separation of their respective forces, at KM 101 on the Suez-Cairo highway, Jan. 20, 1974. (Photo: Max Nash / AP)

Israeli Prime Minister Benjamin Netanyahu, however, has rejected the possibility of a Palestinian state as part of a cease-fire deal in the Israel-Hamas war and said Israel will keep security control over Gaza and the West Bank.

Support for a two-state solution is also low among Palestinians. Though Palestinian support for a two-state solution reached a peak of 59% in 2012, it has since fallen dramatically. A Gallup poll conducted in the summer and fall of 2023 found that just 24% of Palestinians worldwide supported a two-state solution in which Israel would remain an independent nation. Support was even lower among Palestinians aged 15 to 25.

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What it's like to rescues migrants at sea

“No one deserves to die at sea. No one deserves to die at external borders, seeking a safe and more humane life,” Leona Blankenstein, 30, told Blue Marble.

Blankenstein is the tactical coordinator of Sea Watch International, an organization dedicated to search and rescue in the Central Mediterranean Sea that “was founded in 2014 by volunteers who could just no longer stand witnessing people dying.”

Blankenstein and her team search for boats in distress, following a route that she said consists mainly of people trying to reach Europe from Libya or Tunisia.

How I went from revenge to reconciliation

Aziz Abu Sarah grew up in East Jerusalem. When he was 9 years old, his older brother was arrested on suspicion of throwing rocks  and died shortly after his release from internal injuries sustained during his time in prison.

“For eight years, my life was focused on revenge,” Aziz told Blue Marble. But when he was 18, he decided to study Hebrew.

“I realized that the students in that class didn’t know any Palestinian before, didn’t know my story, and I didn’t know theirs,” he said.

“Suddenly, we had this conversation where we were able to learn about each other and understand each other and realize this binary division of ‘us versus them,’ Israelis versus Palestinians, is not really accurate.” Today he runs a travel company with Scott Cooper, a Jewish American who he says became his best friend. Together they tell the story of the region from both perspectives. “Our staff are Israelis and Palestinians who work together every day, and they are not allowing even these moments to divide us.”

My mother's death on Oct. 7th shook me awake

Activist Vivian Silver dedicated her life to building a path to peace between Israelis and Palestinians. On Oct. 7, she was killed in the Hamas attacks.

Yonatan Zeigen told Blue Marble that his mother’s funeral was a gathering of Jews and Arabs who wanted to commemorate her and celebrate her life but “also come together and be hopeful with this notion that we want to continue in this path of peace.”

“Being a peace activist is not something to save you from being killed in war. It’s something to prevent a war from happening,” he said. “And to create reality where war is not an option.” He said his mother’s death made him understand that he “can't lead a life that is detached from trying to make change.”

ICJ rules Israel must take immediate measures to protect Palestinians in Gaza Strip

In short: The United Nations' International Court of Justice announced its decision on Jan. 26, regarding provisional measures requested by South Africa in its case charging Israel with genocide in the Gaza Strip. The judges ruled that Israel must "take all measures within its power to prevent and punish the direct and public incitement to commit genocide" as well as take immediate measures to allow for humanitarian assistance. But the judges did not approve the request to stop military action in Gaza nor did they order a cease-fire.

The decision comes just 28 days after the measures to stop military action were initially requested, a quick turnaround for the United Nations court. In 49 previous cases, analyzed by Blue Marble, in which requests for provisional measures were made, the court approved at least one of the requests in a majority of cases, but were less likely to approve them when they included a request to stop military action.

How has the ICJ ruled on provisional measures previously?

Since the United Nations’ founding in 1945, the ICJ, considered the U.N.’s main judicial body, has ruled on at least 49 cases in which requests for provisional measures were made. 

Provisional measures are temporary orders that call upon states in conflict to stop “irreparable harm” from occurring while the court is deciding on the merits of the case, according to Leila Sadat, the special adviser on crimes against humanity to the International Criminal Court prosecutor. 

Blue Marble analyzed 49 ICJ cases involving provisional measures. Of the ICJ cases analyzed, at least one provisional measure was approved in 27 of the cases (or 55% of the time), while provisional measures were denied 22 times. It’s worth noting, though, that 10 of those denials involved Serbia asking for the same provisional measures against 10 different countries. 

Provisional measures are not a ruling on the merits of a case. Specifically in the case being heard against Israel, the granting of a provisional measure would not be “an adjudication of genocide,” Sadat said.

How has the ICJ ruled on previous provisional measures requesting a stop to military operations?

Of the 24 cases Blue Marble analyzed in which the requested provisional measures involved some cessation of military aggression, the court approved measures in nine cases, which is 38%.

Blue Marble includes in this category rulings that have ranged from orders to cease military action, use of force, or armed aggression; to withdraw forces from specific territories; to prohibit occupation of specific territories by armed forces; and to stop supporting military or paramilitary activities. Some examples are a 1990 order that both Senegal’s and Guinea-Bissau’s navies stay out of a disputed body of water during a case, and a 2022 order that Russia stop all military actions in Ukraine.  

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What exactly did the court order?

These are the measures to be adopted:

  • "The Court considers that ... Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group. The Court recalls that these acts fall within the scope of Article II of the Convention when they are committed with the intent to destroy in whole or in part a group as such (see paragraph 44 above). The Court further considers that Israel must ensure with immediate effect that its military forces do not commit any of the above-described acts."
  • "The Court is also of the view that Israel must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip."
  • "The Court further considers that Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.
  • "Israel must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip."

The court also ruled that Israel must submit a report within one month on the measures it's taken to adhere to the ICJ's ruling. After South Africa receives the report, it can submit comments.

Will ICJ’s ruling lead to a cease-fire in Gaza?

The court did not approve the request to stop military action in Gaza. Even if it had, while ICJ decisions are legally binding and cannot be appealed, multiple countries have ignored the court's rulings. In 2022, Russia ignored a court order to stop invading Ukraine. The U.S. has ignored at least two ICJ orders, the first, in 1986, when the ICJ ruled that U.S. support for the right-wing Nicaraguan rebels, the contras, was illegal, and the second, in 2018, when the court demanded the U.S. make exceptions in its sanctions on Iran.

What is South Africa’s case against Israel?

South Africa's case against Israel is the fifth time the UN genocide law has been used this way.

According to South Africa’s application to the ICJ asking it to hear the case, Israel’s actions against Palestinians in the Gaza Strip after Hamas’ Oct. 7 attack are in breach of a 1948 U.N. convention that defines and outlines genocide as a crime.

Defining "genocide"

According to the U.S. Holocaust Memorial Museum, the term was first used in 1944 by a Polish Jewish lawyer in reference to the actions of the Nazis. The United Nations made genocide an international crime in 1948 and outlined it as certain acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

South Africa says Israel’s actions are “genocidal in character” because they are “intended to bring about the destruction” of Palestinians in the Gaza Strip.

Among its evidence, South Africa included the death toll, at the time of filing the case, of over 21,000 Palestinians, and widespread food insecurity across Gaza.

The day after South Africa presented its case to the ICJ on Jan. 11, Israel defended itself before the court. Israel largely focused on Oct. 7, when Hamas launched an attack against Israel, killing about 1,200 Israelis, mostly civilians, and taking more than 200 hostages.

In response to the attack, Israel launched a “complete siege” on Gaza that has now killed at least 26,000 Palestinians, most of them women and children, waging “the deadliest and most destructive” military campaign in recent history, the Associated Press reported. 

How long will it take to decide the genocide case?

Now that the ICJ has decided on provisional measures, the case will begin with oral arguments. There is no definitive timeline for when a decision will be made. 

Between May 1947 and November 2023, the court heard 191 cases, including four contentious cases — cases that a state files against another — involving the same international genocide law that South Africa cites in its charges against Israel. The most recent case involving genocide accusations was in 2022 related to Russia's invasion of Ukraine. The most recent resolved case involving genocide charges took 14 years.

Provisional measures are ruled on more quickly. Based on an analysis of 50 cases published in the Chinese Journal of International Law in December 2023, it takes on average 51 days for the ICJ to decide on provisional measures. There is wide variation, though, researchers say, “with the shortest lasting six days and the longest stretching to 161 days." 

Sadat said in early January that there was pressure on the ICJ to rule on South Africa’s requested protective measures within two months, because in the most recent genocide case that came before the ICJ — between Ukraine and Russia — the court approved Ukraine’s requested provisional measures in 18 days. It was a “lightning speed” decision in the world of international courts, Sadat said.  

The ICJ panel for this case consists of 15 judges appointed for nine-year terms by the United Nations General Assembly and the Security Council, and two “ad hoc” judges chosen by South Africa and Israel since their nationalities were not already represented on the bench. 

AJ Caughey, Kyra Dahring, and Tria Raimundo contributed reporting.

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From oil to Ikea furniture: Red Sea conflict and Panama Canal drought delay shipments and could increase emissions

In short: Over 90% of the world’s traded goods are transported by ship, according to the Organisation for Economic Co-operation and Development, but the conflict in the Red Sea and a drought in the Panama Canal region are delaying ships or causing them to reroute. These disruptions have increased shipping costs, prompting fears of inflation. Rerouted ships must also travel farther distances, and some companies are switching to air shipments, both of which will increase the shipping industry’s already high greenhouse gas emissions.

What’s going on in the Red Sea?

Almost 15% of all global trade conducted by sea passes through the Red Sea, including 8% of all globally traded grain and 12% of all oil transported by ship, according to a joint statement from the U.S. and 13 other countries.  

Since mid-November, the Yemen-based Houthis have been launching drone and missile attacks in the Red Sea in an effort to keep ships from delivering goods to Israel and force a cease-fire in the Gaza Strip.   

Companies have responded by sending ships around the southern tip of Africa to avoid going through the Red Sea, which can add at least a week of travel time. In other instances, shipping companies have turned to air freight, which is usually more expensive and has less capacity when it comes to how much can be shipped per load.

Tesla and Volvo factories in Europe have already had to pause some production because the delays have caused a shortage of needed materials. Ikea has said that the delays could cause a shortage of certain products from the popular Swedish furniture company.

a map of the world

 

Sea-Intelligence, a supply chain advisory firm, said the effect on weekly shipping capacity caused by the conflict in the Red Sea is “even larger than the early pandemic impact.”

A coalition of countries, led by the U.S., was formed in late 2023 to protect shipping routes in the Red Sea, but countries have been hesitant to join, and the Houthis have warned that any country involved in the coalition will be targeted.

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After delivering a series of warnings that went ignored, the U.S. and U.K. launched a strike in Yemen early on Jan. 12 local time. The U.S. struck Houthi targets for the sixth time on Jan. 19, then the U.S. and U.K. struck Houthi targets in Yemen again on Jan. 22. 

A spokesperson for the Houthis told Al Jazeera the group will not stop attacking shipping routes, even amid U.S. attacks on Houthi targets. As of Jan. 19, Reuters reported that the Houthis don’t plan to expand their attacks beyond preventing ships from getting to Israel and retaliating in response to U.S. and U.K. attacks.

A boat with burn marks
This photograph provided by the Indian Navy shows U.S.-owned ship Genco Picardy that came under attack Wednesday from a bomb-carrying drone launched by Yemen's Houthi rebels in the Gulf of Aden, Thursday, Jan.18, 2024.(Photo: Indian Navy via AP)

What’s going on in the Panama Canal?

Due to severe drought in the region, authorities recently cut the number of ships allowed to pass through the Panama Canal by 36%. As of Jan. 18, the wait time for a ship wanting to get through the canal was anywhere from two to 55 days, depending on the type of ship and whether it was northbound or southbound, according to global port agency WaterFront Maritime Services.

The delay has caused some shipping companies to reroute through the Suez Canal, which has also become difficult to pass through due to the Houthis’ attacks in the Red Sea. CNBC reported that so far, 90% of container ships going to the Suez Canal have been rerouted.

Increasingly longer routes and delays could also cause a shortage of shipping containers, prompting what’s known as a “container crunch,” which could lead to even more delays.

What’s the human impact of these shipping changes?

Extended routes and delayed shipping can cause increased consumer prices and risk of harm to the environment.

As a result of the conflict in the Red Sea and the drought in the Panama Canal, shipping costs are rising, and with shipments delayed, there are fears that oil and retail prices could increase. Oil prices are already increasing and retailers are stocking up on their product in an attempt to avoid shortages.

Longer shipping routes could also have negative environmental impacts. Prior to these reroutes, the shipping industry was responsible for 3% of global greenhouse gas emissions, World Bank economist Dominik Englert said on the organization’s infrastructure podcast, “Tell Me How.” Englert specializes in sustainable shipping.

“If shipping was a country, it would be the sixth largest greenhouse gas emitter worldwide, ranking between Japan and Germany,” he said.

Many ships that go from Asia to Europe are being rerouted around the southern tip of Africa, emitting more carbon dioxide along the way. For example, a ship traveling from Shenzhen in southern China to Rotterdam in the Netherlands adds over 3,000 nautical miles to its trip when it reroutes around the Cape of Good Hope, increasing carbon dioxide emissions by about 14,000 metric tons, according to Reuters’ global energy transition columnist Gavin Maguire.

Ships are also going faster to account for the time lost during the longer journey, Maguire writes, which also increases emissions. A switch to air freight also drastically increases emissions.

A 2014 study found that a plane carrying the same amount of product for the same distance as a boat emitted 44 times more carbon dioxide equivalent, a unit used to compare greenhouse gas emissions, than the boat. Air freight also has less capacity compared to shipping by boat, meaning more planes will need to take off in order to transport the same amount of product, emitting even more carbon dioxide.

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South Africa's case against Israel is the fifth time UN genocide law has been used this way

In short: South Africa presented its genocide case against Israel last week at the International Court of Justice, and Israel defended itself against the charges. The ICJ is now considering whether to approve provisional measures that would immediately order Israel to stop all military operations in the Gaza Strip while the broader case is being decided, which could take years. South Africa’s case is only the fifth to use a United Nations genocide law since the law's inception.

What is the U.N. genocide convention? 

In 1948, the U.N. General Assembly approved the Convention on the Prevention and Punishment of the Crime of Genocide, which went into effect in 1951.

“The genocide convention was written in 1948, and it basically codified what happened in the Holocaust” as a crime, said Leila Sadat, special adviser on crimes against humanity to the International Criminal Court prosecutor, in a panel discussion at the Chicago Council on Global Affairs.

The law outlined and defined genocide as any of these acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group”:

  • “killing members of the group”
  • “causing serious bodily or mental harm to members of the group”
  • “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”
  • “imposing measures intended to prevent births within the group”
  • “forcibly transferring children of the group to another group”

The convention also made criminal the conspiracy to commit genocide, incitement to commit genocide, attempted genocide, and complicity in genocide.

“The genocide convention was adopted and had great fanfare, and then sat on the shelf,” said Sadat. “It sat on the shelf for 50 years. In the criminal sense, [it was] never used.” 

What other countries have used the U.N. genocide convention?

Including South Africa’s case against Israel, there have been five cases of a country bringing charges against another using the genocide convention.

Setting a new precedent

South Africa’s case against Israel is only the second genocide case brought to the ICJ by a country not involved in the conflict the case is about. There are hopes that Gambia’s precedent-setting case against Myanmar and now South Africa’s case against Israel will encourage more countries to file cases with the ICJ during future atrocities.  

The first two uses of the convention were in relation to the violent breakup of Yugoslavia in the 1990s. The first was in 1993, when the Republic of Bosnia and Herzegovina brought a case against the Federal Republic of Yugoslavia, alleging that agents of the Federal Republic (Serbia and Montenegro) were committing genocide against Bosnian Muslims in violation of the convention. The ICJ decided in 2007 that the Republic of Serbia had violated the genocide convention by failing to prevent a 1995 genocide of Bosnian Muslims and that Serbia had also failed to punish the perpetrators of said genocide.

Croatia also brought a genocide charge against the Federal Republic of Yugoslavia in 1999, claiming it was liable for the ethnic cleansing of Croatian citizens. In response, the Republic of  Serbia filed a counterclaim accusing Croatia of being responsible for genocide against Serbs who were in Croatia. In 2015, the court decided neither country had committed genocide against the other.  

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In 2019, Gambia brought a case against Myanmar, alleging that it was committing genocide against the Rohingya, a majority-Muslim ethnic group that lives in Myanmar. This case, which is still making its way through the ICJ, set the precedent that a country not directly involved in or affected by a conflict could still bring a genocide case to the ICJ.  

Lastly, in 2022, Ukraine brought a case to the ICJ alleging Russia misused the genocide convention to justify its invasion of Ukraine. Russia said Ukraine was committing acts of genocide in two Ukrainian regions that proclaimed independence from Ukraine, which Russia – but not the broader international community – recognized. Russia refused to appear at the ICJ hearings, and the court approved provisional measures that ordered Russia to stop all military operations in Ukraine.

What is South Africa’s case against Israel?

According to South Africa’s application to the ICJ asking it to hear the case, Israel’s actions against Palestinians in the Gaza Strip after Hamas’ Oct. 7 attack are in breach of the 1948 U.N. genocide convention.

The day after South Africa presented its case to the ICJ on Jan. 11, Israel defended itself before the court. Israel largely focused on Oct. 7, when Hamas launched an attack against Israel, killing about 1,200 Israelis, mostly civilians, and taking more than 200 hostages.

In response to the attack, Israel launched a “complete siege” on Gaza that has killed at least 24,000 Palestinians, most of them women and children, waging “the deadliest and most destructive” military campaign in recent history, the Associated Press reported. 

Israeli legal adviser Tal Becker told the court that South Africa’s requested provisional measures are an attempt to stop Israel from defending itself against Hamas. South Africa requested provisional measures that include an end to any Israeli military operations in Gaza for the duration of the case.

The Associated Press noted, “Even when acting in self-defense, countries are required by international law to follow the rules of war, and judges must decide if Israel has.”

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Who could be criminally charged because of the Israel-Hamas war?

In short: South Africa presented its genocide case against Israel this week at the International Court of Justice, which handles disputes between countries. The International Criminal Court, which prosecutes individuals for international crimes, has been investigating potential crimes committed in the Palestinian territories since 2021, including those committed by Hamas militants and Israeli military members during the Israel-Hamas war.

What is the ICC?

Based in The Hague in the Netherlands, the ICC began operating in 2002. The court investigates and prosecutes those responsible for major international offenses, specifically genocide, war crimes, crimes against humanity, and crimes of aggression.

The ICC is composed of a prosecutor’s office and a bench of 18 judges. If an individual is convicted by the court, the ICC can impose punishments of up to life imprisonment.

The ICC has heard 31 cases since its founding, and there have been 10 convictions.

Who could the ICC charge when it comes to the Israel-Hamas war?

Depending on circumstances including where an alleged crime was committed and where the perpetrator is from, the ICC could charge both Hamas militants and Israeli military members.  

ICC jurisdiction only applies to countries that have agreed to participate in the court. Currently, 123 countries are signed on to the ICC’s establishing statute; Israel did not sign on, the State of Palestine did as a non-member observer state recognized by the U.N.

The ICC is also able to prosecute members of a non-state group – such as Hamas – for genocide, war crimes, and crimes against humanity, said Leila Sadat, special adviser on crimes against humanity to the ICC prosecutor, at a panel discussion at the Chicago Council on Global Affairs. If non-state actors commit a crime on ICC country territory, the court automatically has jurisdiction. If a non-state party commits a crime on non-ICC country territory, the United Nations Security Council must refer those non-state groups to the ICC.

Because the State of Palestine is signed on to the ICC, the court has jurisdiction over all Palestinian nationals.

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“Most states see the ICC as a shield,” Sadat said. “They’re trying to protect their territory, and when they join the court, they make a commitment that their nationals will not commit ICC crimes. So, leaders of Hamas, as Palestinian nationals, are nonetheless within the sort of jurisdiction, subject-matter-wise, of the court.”

However, if the ICC charges Hamas members who aren’t within an ICC country, it will be difficult to get them into custody as the court relies on states to arrest those at large. The ICC has no police force of its own, Sadat said.

There are Hamas members currently operating outside of the Palestinian territories, primarily in three countries that don’t recognize the ICC: Lebanon, Qatar, and Egypt. 

Israel does not recognize the ICC, so Israeli nationals are not under its jurisdiction unless they commit a crime in a place that does recognize the ICC. This means that Israeli military members could be charged by the ICC for any alleged crimes in the Palestinian territories.

What is the ICC investigation into Israel and the Palestinian territories?

In 2021, at the State of Palestine’s request, the ICC opened an investigation into potential crimes committed in the Palestinian territories from 2014 – when a conflict between Hamas and Israel caused “unprecedented” devastation in Gaza – onward. Alleged crimes committed during the most recent Israel-Hamas war are included in that investigation.

In November 2023, the Israel-Hamas war prompted five countries to ask the ICC to investigate the situation in the Palestinian territories. ICC prosecutor Karim Khan has said the 2021 investigation includes the events that have occurred since early October.

Hamas launched an attack against Israel on Oct. 7, killing about 1,200 Israelis, mostly civilians, and taking more than 200 hostages. In response, Israel launched a “complete siege” on Gaza, killing at least 23,000 Palestinians, most of them women and children, and waging “the deadliest and most destructive” military campaign in recent history, the Associated Press reported. 

In December 2023, after visiting Israel and the West Bank, Khan said investigating potential crimes by Hamas militants and Israeli military members in the recent conflict was a “priority” for his office.

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What are the provisional measures South Africa is requesting in its genocide case against Israel?

In short: South Africa is presenting its genocide case against Israel this week at the International Court of Justice, the main judicial body of the United Nations. While it could take years for the ICJ to issue a ruling on the case, South Africa is asking the court to implement provisional measures that include ordering Israel to stop military actions in the Gaza Strip while the case is being determined.  

What are provisional measures?

Provisional measures are temporary orders that call upon warring states to stop what they’re doing to prevent possible “irreparable harm” from occurring while the court is deciding on the merits of the case, according to Leila Sadat, the special adviser on crimes against humanity to the International Criminal Court prosecutor.

Sadat noted in a panel discussion at the Chicago Council on Global Affairs that provisional measures are not a ruling on the merits of a case. Specifically in the case being heard against Israel, the granting of a provisional measure would not be “an adjudication of genocide.” It would be more similar to the court issuing a restraining order for the duration of a case.

South Africa is requesting nine provisional measures be brought into effect, most notably that Israel suspend any military operations in or against Gaza.

How long will it take the ICJ to decide on the provisional measures?

Sadat said that there is pressure on the ICJ to rule on the requested measures within two months, because in the most recent genocide case that came before the ICJ – between Ukraine and Russia – the court approved Ukraine’s requested provisional measures in 18 days. It was a “lightning speed” decision in the world of international courts, Sadat said.  

That said, one significant difference between Ukraine’s case against Russia and South Africa’s case against Israel, is that Russia declined to appear before the court to defend itself. Israel is participating in ICJ proceedings and presenting its defense this week, including against the implementation of any provisional measures. 

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What is South Africa’s case against Israel?

According to South Africa’s application to the ICJ asking it to hear the case, Israel’s actions against Palestinians in the Gaza Strip after Hamas’ Oct. 7 attack are in breach of a 1948 U.N. convention that defines and outlines genocide as a crime.

Defining "genocide"

According to the U.S. Holocaust Memorial Museum, the term was first used in 1944 by a Polish Jewish lawyer in reference to the actions of the Nazis. The United Nations made genocide an international crime in 1948 and outlined it as certain acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

South Africa says Israel’s actions are “genocidal in character” because they are “intended to bring about the destruction” of Palestinians in the Gaza Strip.

Among its evidence, South Africa includes the death toll, at the time of filing the case, of over 21,000 Palestinians and widespread food insecurity across Gaza. It’s estimated that between Dec. 8, 2023, and Feb. 7, 2024, all of Gaza’s 2.2 million residents will be considered in “crisis or worse” by the Integrated Food Security Phase Classification, a scale used by governments and international organizations to analyze food insecurity. 

As South Africa presented its case to the ICJ on Jan. 11, the Israeli Foreign Ministry said it was witnessing “one of the greatest shows of hypocrisy in history and a series of baseless and false claims,” according to Reuters. 

On Oct. 7, Hamas launched an attack against Israel, killing about 1,200 Israelis, mostly civilians, and taking more than 200 hostages. In response, Israel launched a “complete siege” on Gaza, killing at least 23,000 Palestinians, most of them women and children, and waging “the deadliest and most destructive” military campaign in recent history, the Associated Press reported. 

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