I send greetings to all of my friends: May they live to see the dawn after this long night. I, who am most impatient, go before them.

When Zweig took his life, the world was indeed going through one of its darkest chapters. The Nazis and their Axis allies were at the height of their power, relentlessly grinding nations to the ground with their war machine and implementing industrialized genocide as the “Final Solution to the Jewish Question.”

What Zweig could not know, consumed by his total despair, was that in three years his “long night” would come to an end. The Nuremberg Trial, held in Germany in 1945-46, helped cast it away. As Nazi leaders were indicted and tried as war criminals at an international tribunal, the shield of sovereign impunity was finally broken. The highest-ranking state officials could no longer feel untouchable in the commission of heinous acts.

As the world marks the 80th anniversary of the Trial, its legacy remains complicated. The principle of legality conspicuously took a marginal role, as victor’s justice was in the air after World War II. The charges levied against German officials for crimes against peace concerning the invasion of Poland conveniently ignored the crime’s joint design and perpetration with the Soviet Union, which invaded in parallel from the East. The partisanship of Nuremberg is therefore best understood as international criminal law’s necessary evil, the moment which had to happen, but should never happen again. The magnitude of atrocities required to give life to the Trial left a permanent scar on the world. The Trial’s partisan approach could only be seen as permissible as one world order broke and another sought to emerge.

For international criminal law to remain a compelling set of norms, however, the central principles that formed Nuremberg must be vigorously defended. These tenets – that use of armed force is no longer a sovereign prerogative, but a criminally punishable act, and that no one can escape responsibility for international crimes – comprise the initial thread from which the modern international order was woven. Violations of these principles have accelerated recently, from Russia’s invasion of Ukraine to Israel’s desecration of humanitarian norms in Gaza. But perhaps a more pernicious threat to these principles, yet no less inconsequential, is the fall from grace of a previously foundational proponent of the international order: the United States.

Early Hope

World War II left in its wake a world beyond comprehension. The scale of atrocity – numerically and geographically – had hitherto never been seen. There was a pervading sense amongst the Allies that severe personal consequences should be meted out to all those responsible, with Germany at the top of the list among the defeated Axis powers. Yet it was far from inevitable that a criminal justice model would be used to secure accountability. Without the United States’ leadership, it would have likely never happened. Britain strongly opposed the notion of criminal trials for responsible Nazi officials. Winston Churchill made clear that he preferred summary executions. The Soviet Union wanted show trials with clearly predetermined outcomes. Only the United States, under the leadership of President Harry Truman, took a stand to “determine the innocence or guilt of the accused after a hearing as dispassionate as the times and the horrors … will permit.” This vision of justice was the catalyst for the establishment of the International Military Tribunal (and its counterpart: the International Military Tribunal for the Far East, which prosecuted Japanese war criminals). American determination that fair justice was necessary for peace was central to the emerging international system, which would restrict the use of force and strive for accountability for international crimes.

Long Decline

American integrity would not last long, however. In the wake of the trials, the United States had already concluded that national security advantages could sometimes trump accountability, actively leveraging former Nazis as intelligence agents to counter the emerging Soviet bloc. These contemptible actions set the stage for decades of American foreign policy that eroded the international norms it had just sought to entrench. This decline in moral leadership accelerated when the United States cast aside the prohibition on foreign intervention. Throughout the Cold War, the United States pursued an often-violent interventionist foreign policy aimed at securing pliable allies across the globe.

As the confrontation with the Soviet Union evaporated in the 1990s, a fleeting moment of hope arose. The United States intervened to defend Kuwait’s sovereignty from Iraq and provided robust support for the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda. It supported the creation of the International Criminal Court (ICC) and signed its foundational Rome Statute in 2000, though never ratified it.

This brief American foray into collective self-defense and international criminal justice would meet its end after 9/11 and the commencement of the United States’ so-called Global War on Terror. Following the somewhat justifiable invasion of Afghanistan, the United States embarked on an unlawful invasion of Iraq. It complemented these actions with a state-sponsored program of enforced disappearances and torture, for which there was never any real accountability. In 2001, a fearful United States even adopted a law authorizing the use of military force to secure the release of any U.S. or allied military personnel detained in relation to ICC proceedings. U.S. policy also gradually deviated in other ways from recognized principles of international law; much later, for example, under the first Trump administration, approval of annexation crept its way into official U.S. policy through formal recognition of Israel’s unlawful occupation of Syria’s Golan Heights.

There were, however, a few last glimmers of hope. Although the United States failed to respond robustly to Russian aggression against Ukraine in 2014, it unequivocally condemned and supported resistance against Russia’s full-scale invasion of the country in 2022 and it has continued to do so – that is, until lately.

The End of all Reason

From Gaza to Ukraine, American foreign policy is now lurching toward a narcissistic pursuit of pyrrhic peace. In support of allies and adversaries alike, it is demonstrating an intent to undermine the precedents of unmitigated responsibility for international crimes, including aggression, set by Nuremberg.

Current U.S. initiatives explicitly challenge responsibility and liability for punishment of individuals for international crimes (Nuremberg Principle I). The recently proposed “peace initiative” for Ukraine, apparently authored by American envoy Steve Witkoff with input from Russian envoy Kirill Dmitriev and others, advocated for “full amnesty for […] actions during the war.” Regardless of this provision’s outcome in a final document, the very fact of its proposal suggests U.S. permissibility of international crimes so long as the perpetrator isn’t defeated on the battlefield. Russia’s commission of the worst mass atrocities on European soil in decades is being met with a forgiving embrace. Regarding the war in Gaza, the United States has provided immense quantities of weaponry directly tied to Israel’s international crimes and lashed out against those who credibly allege Israel is committing genocide against Palestinians in Gaza. The Trump administration is also applying sanctions as a punitive weapon to scare off independent institutions such as the ICC from holding officials accountable for grave crimes.

The “prestigious” mantle of leadership, no matter how soaked in blood, now creates an impression that one can perpetrate international crimes without consequences. Israeli Prime Minister Benjamin Netanyahu is warmly applauded by U.S. lawmakers and dotingly defended by President Donald Trump. Russian President Vladimir Putin was given the literal red-carpet treatment on American soil when he visited Alaska in August. Other countries feel emboldened to follow suit. For example, Hungary brazenly advertised itself for a state visit by Putin and hosting Netanyahu, two leaders wanted by the ICC. Instead of accountability for all responsible (Nuremberg Principle III), the world is returning to a time when the most senior orchestrators of criminal plans and policies can use their official position to protect themselves from punishment.

The central crimes that Nuremberg cast into international law (Nuremberg Principle VI) – war crimes, crimes against humanity, and aggression – are being bludgeoned into meaningless political words. Instead of being the most serious crimes of concern to all humanity, they are reforged as tolerable misbehavior or the permissible spoils of war. In Ukraine, the crime of aggression now appears to reward the perpetrator. The so-called peace initiative for Ukraine envisages the illegally occupied and annexed territories of Ukraine to be “recognized as de facto Russian” and “belong to the Russian Federation.” The war crimes and crimes against humanity that accompanied Russian brutality are being met with a callous shrug.

The seriousness of international crimes is being minimized even with issues traditionally seen as “untouchable.” In a recent vote on a normally consensual draft United Nations General Assembly’s triennial resolution condemning torture, the United States stood among the only three States in opposition, alongside Israel and Argentina.

Actions taken by the United States begin to look like active complicity with international crimes. The most obvious case relates to Gaza. Unflinching supply of armaments and intelligence to Israel – when joined with overwhelming evidence of Israeli forces committing war crimes, crimes against humanity, and genocide – means clear liability in aiding or assisting manifestly illegal actions targeting Palestinians (ARSIWA, Art. 16). More surreptitiously, American attempts to strongarm Ukraine and cajole Russia into halting its invasion also begin to increasingly seem like aid or assistance for Russia’s illegal conduct. Of course, good faith attempts to secure cessation of hostilities and an end to uncontrolled bloodshed through political or economic manoeuvring are certainly not unlawful per se. However, the line demarcating complicity is crossed when a peace process is used as an attempt to orchestrate broad support for a perpetrator’s act of aggression. Freezing an invasion by giving material or financial support with a view to facilitating ongoing occupation and annexation will constitute aid or assistance to another state’s commission of these continuing acts of aggression (ARSIWA Commentary, 66). The proposed Witkoff-Dmitriev “peace initiative” provided for factual recognition of Russian control linked to measures that seemingly pave the way for eventual full legal recognition. This is hinted at in the planned process of sanctions removal and economic investment – with no clear limitation toward activities linked to occupied territories – and equally in the use of the terms “internationally recognized as territory belonging to the Russian Federation” for the demilitarized buffer zone. These aspects suggest an intention to normalize occupation to the point that would cross into aid or assistance toward Russia’s aggression. It is more demonstrable in the United States’ political jockeying for recent U.N. General Assembly and Security Council resolutions about Russia’s invasion. The United States has pointedly fought back against references to the illegality of Russia’s actions, providing a vital lifeline for international endorsement of such conduct. In the backdrop, Trump has not hesitated to remark that Russia “fought and … won certain property” that they are seemingly entitled to take. This is the bleeding edge of complicity.

As a final undoing of Nuremberg, the United States now considers itself entitled to use armed force as a political tool. Deeply entrenched jingoism has given rise to an administration that genuinely believes it can commit violence (or threaten to do so) with impunity. The Trump administration routinely threatens annexation of territories in Panama, Greenland, and Canada. Extrajudicial killings of alleged drug traffickers in the Caribbean and Pacific, under attempts to invent a non-existent armed conflict, are used to advance a political agenda. Under the cover of wars against terror and drugs, it has even become a pretext to threaten military action against countries in Central and South America that provoke the ire of Trump. In its most recent flagrantly illegal act, the United States has committed aggression against Venezuela by bombing and invading the country, and kidnapping its head of state. The prohibition of the use of force, the sacrosanct principle of international law’s post-World War II order, has been turned into leverage for crude bargaining.

The World of Tomorrow

States complicit in attacks against the foundations of the world order must be called out for it. And this applies to the United States, which now stands in opposition to the Nuremberg principles. If the United States cannot rectify its behavior, remedying failures of the past and present by holding itself accountable, other States must stand strong in opposition to these attacks on the international order. Faustian peace projects which perceive justice as an impediment to safety and security must be rejected, prioritizing just peace in harmony with international law.

Nuremberg showed that there are certain principles that should define our shared humanity. We know that the world is imperfect (to say the least). We all feel exactly where the system is failing, where the cracks in the international security architecture lie, and who is responsible for them. But this battered hope cannot cause the abandonment of principles that safeguard justice for the world’s worst atrocities. To forsake the Nuremberg principles means to return to the world of yesterday, where power forgave brutality and perpetrators never worried about the prospect of punishment.

We are writing these lines from Kyiv, where people are recovering after yet another murderous Russian attack conducted in the middle of “peace negotiations.” The dead and injured are counted, the power and heating are out, and mournful reflections persist. Here, the long night continues unabated and two options remain: despair or look for the light scattered in the dark.

Yet history delivers a hopeful message: future visions remain deceitful. When Zweig wrote his suicide note observing the decline of Europe in 1942, he could not see the future end of Nazi rule. And yet, the Nuremberg trials occurred. In 1994, Radio Télévision Libre des Mille Collines broadcasters in Rwanda finished their call for the elimination of Tutsis by proclaiming that “if [they] exterminate all the cockroaches, nobody will judge [them] because [they] will be the winners.” And yet, the perpetrators faced prosecution before an international tribunal. In 1995, the BBC’s documentary “The Death of Yugoslavia” featured Serbian President Slobodan Milošević comfortably ensconced in his presidential chair and brazenly sharing his account of the horrific wars he himself was instrumental in conducting. At the time, he did not foresee his life ending in a Dutch prison cell while on trial for international crimes a decade later.

“The Agony of Peace” is the last chapter in Zweig’s “World of Yesterday.” However, even in the agony of peace, Zweig writes in his concluding sentence, “in the last resort, every shadow is also the child of light, and only those who have known the light and the dark, […] war and peace, rise and fall, have truly lived their lives.”

Authors note: Opinions expressed in the blog are solely the authors’ and do not necessarily reflect the views of the organisations and institutions they work with.

The post 80 Years After Nuremberg, Envisioning the Future of International Law appeared first on Just Security.

But the Appeals Chamber rejected this view by a narrow majority (3-2). Instead, it accepted the OTP’s position that a 2021 notification regarding the investigation of certain alleged crimes occurring since 2014 in the context of the Israeli-Palestinian conflict fulfilled the formal duty to notify. Two judges disagreed and opined that the Pre-Trial Chamber that first reviewed Israel’s claim should have examined the impact that numerous new referrals submitted by ICC member-States after October 7 had on the duty to notify. Furthermore, one of the majority judges wrote that the Prosecutor should continuously monitor the need to provide an updated notification when circumstances change. Still, he was not convinced that in the present circumstances the Prosecutor failed to properly exercise such discretion.

The upshot of the decision is that, as a practical matter, the arrest warrants issued by the ICC in 2024 against Israeli Prime Minister Netanyahu and former Defense Minister Gallant remain in force. In effect, the judgment marks a choice by the Court not to take an exit ramp, which could have put on hold the controversial warrants against Netanyahu and Gallant. Still, two other preliminary motions challenging the validity of the arrest warrants remain pending: One is based on the unclear legal status of the State of Palestine and its lack of jurisdiction over Israeli nationals; a second motion involves Israel’s request to disqualify ICC Prosecutor Karim Khan from the case due to a lack of perceived impartiality and quash the warrants he requested the Court to issue. A third motion to suspend the arrest warrants while the question of jurisdiction is being considered was rejected by the Pre-Trial Chamber on Oct. 17.

Beyond its importance to the Netanyahu and Gallant cases, the judgment is also notable for the Court’s narrow interpretation of the complementarity principle – a principle that envisions the ICC as an institution that is supposed to complement national criminal systems, not replace them. Article 18 of the Rome Statute, the Court’s founding treaty, lays out the formal notification procedure required when an investigation begins, in order to facilitate giving the right of way to domestic investigations. Arguably, the recent judgment detaches this procedure from its stated purpose of affording States a reasonable chance to claim jurisdictional primacy and undertake their own criminal investigations of conduct that falls under the scope of the ICC Statute. This outcome arguably goes against the Court’s declarative embrace of positive complementarity, and adds another layer of apprehension to an already troubling sequence of events surrounding Khan and the investigation (see e.g., here). When added to the Court’s rejection of non-members’ head of state immunity, the picture that emerges from the recent judgment is one of limited protection afforded by the ICC to sovereign rights and legal interests of non-ICC States.

The Court’s Judgment

In its judgment, the Appeals Chamber walked through the relevant chain of events: the 2018 Palestinian referral of a situation to the ICC, Prosecutor Fatou Bensouda’s 2021 decision to open an investigation and notify Israel, Israel’s evasive response to the initial notification, the post-October 7 referrals to the Court by several States, Israel’s May 1, 2024 request for deferral (which was rejected by the OTP for being allegedly submitted after the deadline), and the Pre-Trial Chamber’s rejection of Israel’s Article 18(1) challenge (issued in November 2024). It then moved to review Israel’s three objections to the 2024 decision.

First, the Court addressed Israel’s claim that the 2018 referral and 2021 notification did not cover post-October 7 events since the referral and notification were not intended to cover all crimes committed during an ongoing armed conflict. In particular, the 2021 notification referred only to Israel’s settlement policy and to two specific episodes (the 2014 Gaza hostilities and the violent clashes along Gaza’s border with Israel that took place in 2018). The Court held that the reference in the 2021 notification to war crimes implied a legal position that an armed conflict exists, and that the notification identified the parties to the armed conflict (Israel and Palestinian armed groups, including Hamas). Hence, it held that an armed conflict was one of the defining parameters of the 2021 notification. With regard to the claim underscoring the temporally defined nature of that notification, the Court noted that the Palestinian 2018 referral, against which the notification should be read, was not time limited. It cited an earlier decision in support of the proposition that “there is no expectation at this stage of the proceedings that the Prosecutor should notify States of every act he or she intends to investigate.” It also held that the 2021 notification alluded to crimes allegedly committed in 2014 as merely illustrative of patterns and forms of criminality, and stated that it should not prejudice the future scope of investigation of crimes falling under the same situation.

This formulation reflects, according to the Court, “the relationship between the provisions in the Court’s legal texts regulating the threshold for commencing an investigation under Article 53(1) of the Statute, the requirement to provide sufficiently specific information to a State for the purposes of Article 18(2) of the Statute, and the Prosecutor’s prerogative to continue the investigation within the parameters of the Palestine Situation.” As a result, the Court accepted the OTP’s position that the post-October 7 investigation covers “conduct committed in the context of the same type of armed conflicts, concerning the same territories, with the same alleged parties to these conflicts,” to which the 2018 referral and 2021 notification alluded.

Second, regarding Israel’s claim that the post-October 7 referrals triggered a new situation that would reset the clock, the majority of the Court held that Israel did not directly raise the matter before the Pre-Trial Chamber. Furthermore, the majority took the position that the post-October 7 referrals were connected to the 2018 referral and were designed to encourage the Prosecutor to advance the pre-existing investigation. It surmised that “[s]uch references are, thus, compatible with the notion that, in the early stages of the investigation, the Prosecutor is not in a position to identity or anticipate all potential cases for investigation and that, as the investigation progresses, it may come to encompass alleged crimes not previously identified or anticipated.”

Third, with respect to Israel’s claims that the factual context changed dramatically after October 7 and that the 2021 notification was not specific enough to cover it, the Court noted that the Pre-Trial Chamber found in 2024 that the 2021 notification was sufficiently specific and that the request for arrest warrants fell within its defining parameters. It also noted that defining parameters are case-specific and have to be considered against the scope of the original referral (which in the present case was broad in nature and encompassed both war crimes and crimes against humanity). It further concluded that “the alleged crimes display a continuity in pattern, even though a certain shift in circumstances may have occurred as a result of the events on and after 7 October 2023.” Put differently, the alleged crimes are sufficiently linked to the situation of crisis referred to the Court in 2018.

The Dissenting Opinions and the Concurring Opinion

Judge Luz Del Carmen Ibáñez Carranza dissented from the majority. She accepted Israel’s claim that the Prosecutor failed to inform the President of the ICC of the post-October 7 referrals in apparent violation of Regulation 45 of the Court’s regulations and that this failure – which might have prevented the Court from determining that a new situation and a new duty of notification to Israel exists – was not properly considered by the Pre-Trial Chamber. Specifically, the Pre-Trial Chamber should have considered whether the new referrals gave rise to a new situation, and the majority should not have reviewed the question de novo. She also criticized the Pre-Trial Chamber for failing to consider whether, as a non-State party, Israel was even required to meet the one-month deadline for requesting deferral set out by Article 18(2) of the Statute. She wrote that “where a non-State party is involved, the principle of complementarity must be observed with particular rigour.”

Ibáñez Carranza also held that Israel’s Regulation 45 claim was central to its complementarity claim, and that the Prosecutor’s failure to inform the ICC Presidency that new referrals had been received post-October 7 prevented the Court from properly implementing its ensuing legal duties. The failure of the Pre-Trial Chamber to engage with this claim and to give reasons for its rejection of this part of Israel’s appeal “rendered the outcome of the Impugned Decision unreliable.” Hence, she would have remanded the question regarding the post-October 7 referrals to the Pre-Trial Chamber. She refrained from addressing the other grounds for challenge raised by Israel until this initial matter was resolved.

Judge Solomy Balungi Bossa, the second dissenting judge, was also of the view that given the significance of the post-October 7 referrals, the Pre-Trial Chamber erred in not addressing directly whether they gave rise to a new situation of crisis. Since she could not identify the legal basis on which this aspect of the lower decision was rendered, she also voted for remanding the case, and, like Judge Ibáñez Carranza, expressed no view on the other two grounds for challenge.

The most curious view is the concurring opinion of Judge Gocha Lordkipanidze. Although voting with the majority, he wrote that the Prosecutor should exercise due diligence and continuously assess whether an updated notification should be issued. Regular assessment “would strike a balance between two concomitant interests, on the one hand, providing a meaningful opportunity to a State to exercise its rights under Article 18(2) of the Statute and, on the other hand, ensuring the progression of the Prosecutor’s investigation without unwarranted interruption in accordance with the principles set out in the Court’s jurisprudence,” he wrote. Two factors are particularly relevant for the exercise of discretion, he averred: the lapse of time from the previous notification and diverging patterns and forms of criminality. He noted, in this regard, that new referrals may be indicative of such a divergence. He concluded with the following statement:

[I]n the specific circumstances of the present situation, no information has been placed before the Appeals Chamber that would compel the conclusion that the Prosecutor omitted to take the aforementioned factors into account in considering whether a new situation had arisen that would require a new notification under article 18(1) of the Statute to be issued. Should the Prosecutor, in a different scenario, arrive at the conclusion that changed circumstances give rise to a new situation upon receiving one or more referrals, he would be then duty-bound to decide whether to initiate an investigation into the new situation pursuant to articles 13(c), 14 and 53 of the Statute.

Complementarity and Mirroring

One notion that is completely missing from the Court’s decision on Israel’s Article 18 challenge is the concept of mirroring – the idea that a national investigation must be sufficiently comparable to a planned ICC investigation in order to render an ICC case inadmissible.  Still, for a State to effectively mirror an ICC investigation, it needs a certain level of detail from the ICC about the scope and focus of the intended investigation. This concept appears to have been central to previous Article 18 cases issued by the ICC. In a 2023 judgment on complementarity in the Philippines case, the Appeals Chamber held that:

[F]or the purpose of admissibility challenges under article 18 of the Statute, a State is required to demonstrate an advancing process of domestic investigations and prosecutions of the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation. The domestic criminal proceedings must sufficiently mirror the scope of the Prosecutor’s intended investigation (para. 106)

It further held that the Prosecutor’s Article 18 notification must include situation parameters that are sufficiently specific as to enable the Philippines to demonstrate “the degree of mirroring” – that is, a high level of comparability of domestic and ICC investigations.

In the same vein, in a 2024 judgment issued in the Venezuela case, the Appeals Chamber held with respect to crimes against humanity charges:

[I]f a State does not investigate the factual allegations underpinning the contextual elements of the alleged crimes against humanity that were sufficiently notified to it, it follows that it will not be able to demonstrate, in the proceedings under article 18(2) of the Statute, that the domestic criminal proceedings sufficiently mirror the scope of the Prosecutor’s intended investigation (para. 281).

The idea of “sufficient mirroring” is also mentioned in the OTP’s 2024 Policy Paper on Complementarity and Cooperation, noting that domestic proceedings should investigate “substantially the same conduct.”

We believe that it is against this standard (i.e., that complementarity depends on “sufficient mirroring”) that the Court’s approach to the specificity of the Article 18 notification and to the need to issue a new notification when the direction of the OTP investigation changes should be evaluated. The majority cited with approval the Venezuela decision in support of the proposition that the Article 18 complementarity test is whether the domestic investigation involved “the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation.” Yet, it also cited with approval the same decision for the proposition that “there is no expectation at this stage of the proceedings that the Prosecutor should notify States of every act he or she intends to investigate, especially in those situations referred to the Court which cover a large number of alleged criminal acts,” and upheld “the Prosecutor’s prerogative to continue the investigation within the parameters of the Palestine Situation.”

It is generally accepted that the principle of complementarity operates as a balancing mechanism, designed to ensure that the Court’s legal powers do not excessively interfere with the sovereign right and legal interest of States to investigate serious crimes. As Judge Ibáñez Carranza correctly noted, such a balancing act should be applied with particular rigor when the rights and interests of non-member States are implicated. The principle of complementarity is also supported by practical considerations regarding the limited capacity of the Court and normative considerations regarding the many advantages of close-to-home legal proceedings. The centrality of the principle is manifested in the ICC Statute in that it involves an assessment of investigation mirroring at two separate points in time, at two different levels of precision: 1) at the investigation stage – “same group and categories of individuals” and “substantially the same conduct” or “patterns and forms of criminality” under Article 18; and 2) at the individual pre-trial or trial stage: same person/same conduct under Article 19 of the ICC Statute.

The Article 18 notification is intended to ensure that relevant States are put on alert that a full-fledged legal investigation of an international crime is about to take place before the ICC. The notification is intended to provide them with sufficient information that would allow them a reasonable opportunity to generate a mirroring domestic investigation at the Article 18 level of precision. This is why the Philippines judgment examined whether the notification was sufficiently specific. The need for a specific notification is therefore analytically separate from the question whether or not the new direction of the intended ICC investigation is tied to a new situation of crisis referred to the Court, or whether it is conducted under the same situation of crisis which gave rise to the previous notification. The critical test, in our view, is whether a previous notification is sufficiently specific to allow for a mirroring investigation. Put differently, the prerogative of the Prosecutor to expand an investigation into an existing situation, including into new events, is distinct from the ongoing duty – alluded to by Judge Lordkipanidze – to evaluate whether the change in direction requires a new notification that would facilitate mirroring at the domestic level.

It is difficult for us to see how, in the case of Israel, application of the majority’s approach effectively provided Israel with such a reasonable opportunity to generate a mirroring domestic investigation. As we have explained before, the 2021 notification and the related preliminary examination focused on three issues: West Bank settlements, hostilities in Gaza in 2014, and clashes on the Gaza border in 2018. It did not refer, obviously, to the sharp escalation of the armed conflict on and after October 7, nor did it invoke any crimes against humanity, or any of the specific patterns or forms of conduct for which arrest warrants were eventually sought – that is, starvation-related war crimes and crimes against humanity. While the Court is correct that the Prosecutor could have expanded the investigation, provided that he remained within the boundaries of the 2018 referrals, it fails to explain how Israel could generate a mirroring investigation without receiving more information of the specific conduct, and patterns and forms of criminality that the developing OTP investigation is planning to focus on.

Paying Only Lip Service to Complementarity

The Court’s refusal to engage with Israel’s post-October 7 investigative activity is also troubling. Only seven months passed between the start of the October 7 war and the Prosecutor’s request for arrest warrants. Yet, by August 2024, the IDF reported that 74 criminal investigations into potential crimes occurring during the war had already commenced and that more than 1,000 incidents were being examined by the IDF’s operational fact-finding assessment mechanism. Such investigative activity – which appears at first look to be extensive in scope – should have been reviewed under the Article 18 sufficient mirroring standard and compared to the (unnotified) specific parameters of the ICC’s post-October 7 investigation. This is particularly so, since Israel formally asked the Court on May 1, 2024, to defer the investigation, a request flatly rejected by the OTP for Israel’s failure to meet the one-month deadline established by the 2021 notification. This underscores our point: The OTP denied Israel a reasonable opportunity to claim that a mirroring investigation regarding post-October 7 policies and practices exists because Israel refrained from seeking a deferral in 2021 with regard to allegations involving pre-October 7 policies and practices.

This radical reading of complementarity as a one-off mechanism, impervious to changes in time, circumstances, patterns and forms of criminality, and domestic political and legal changes, does not represent, contrary to the Pre-Trial Chamber’s position, an approach that emanates from the “very object and purpose of the statutory complementarity framework;” rather, it entails the hollowing out of complementarity in the face of open-ended referrals and ongoing armed conflicts. In fact, the majority’s approach effectively confers unlimited power on the Prosecutor to proceed without notification to investigate any issue emanating from an open-ended referral of an ongoing armed conflict. The judgment broadly read the “defining parameters” of the 2021 notification – reading them together with the 2018 referral (despite the fact that referrals simply serve to authorize OTP investigations and delineate the outer limits of their scope, but not to determine what specific issues falling within the said scope would actually be investigated and would require a mirroring investigation). It cited with approval the Prosecutor’s position that it suffices, for the purpose of relying on a past notification, that the crimes occurred in the context of the same armed conflict.  It also referred to the unprecedented events post-October 7 as “a continuity in pattern, even though a certain shift in circumstances.” The upshot of this  approach is that a notification relating to one episode occurring in the beginning of an ongoing armed conflict, which is covered by an open-ended referral, would result in the loss of Article 18 complementarity for all subsequent episodes occurring later in the conflict (provided that the first notification did not lead to deferral).

The potential abuse of this approach manifests itself here. Israel did not, and could not realistically ask for a formal deferral in 2021 regarding settlement-related crimes, given its traditional opposition to Article 8(2)(b)(8) of the ICC Statute and its ambiguous domestic law approach on the legality of settlements. This has no bearing, however, on Israel’s capacity to invoke complementarity with regard to other investigations actually launched by the OTP. The invocation of the earlier failure to obtain deferral in respect to one set of alleged war crimes (which as a non-member State it was not legally bound to do), for rejecting complementarity in respect of a very different set of war crimes and crimes against humanity occurring years later, appears to us unreasonable and running contrary to the basic tenets of the complementarity regime.

We note, in this regard, that Judge Lordkipanidze’s principled position on a case-by-case review of prosecutorial discretion is more reasonable than the one-off approach proposed by the OTP, which was implicitly endorsed by the other two majority judges. We do not understand, however, why after offering this approach, Lordkipanidze rejected Israel’s position. Given the passage of time from 2018 and 2021 to 2024, the dramatic shift in circumstances following the events of October 7, and the existence of new referrals, it is hard to justify a discretionary decision by the Prosecutor to deny Israel of its right to claim Article 18 complementarity – especially, given that the OTP did not cite any investigatory interests that would be seriously harmed by a new notification (and a one-month period allocated to respond to it by requesting a deferral – a request which the Court may accept or reject).

Although Israel (and Netanyahu and Gallant) may still claim before or at the commencement of the trial Article 19 complementarity – that is, that a domestic investigation of the same persons for the same conduct exists – the implications of barring Israel from invoking Article 18 are significant  First, an article 18 deferral would have prevented the issuance of arrest warrants against the two Israeli leaders. Second, under Article 19, Israel also needs to meet a higher degree of mirroring. Hence, denying Israel Article 18 complementarity has real implications for the legal rights and interests of Israel and the two defendants.

A Long-Term Blow to the Court

The refusal of the ICC to effectively defend the rights of non-member States such as Israel, by denying them a reasonable opportunity to claim Article 18 complementarity, raises serious concerns about the Court’s commitment to the principle of complementarity. From a policy perspective, it is striking that the Court never explains how and why granting Israel another one-month period to claim complementarity under Article 18 would have derailed the OTP investigation in the Palestine case. Nor does it explain why, as a matter of general policy, issuing new notifications when “shifts in circumstances” occur would disrupt the mission of the Court and undermine its goal of ending impunity, a goal to whose implementation the principle of complementarity importantly contributes.

Instead, the majority adopted an interpretation of Article 18 that hollows out the principle as a practical matter. It adopted a most forgiving approach toward the Prosecutor’s failure to notify the Court’s Presidency of the new post-October 7 referrals (it considered its invocation by Israel as a “formal aspect.”). And although Judge Lordkipanidze offered a reasonable middle ground for addressing a change in circumstances, he never explained why the tests he proposed for OTP discretion did not apply to the case before him.

Significantly, the hollowing out of non-member States’ complementarity rights – by punishing them for not meeting a deadline in a treaty they never ratified – is reminiscent of the Court’s doubling down on the rejection of head of state immunity of non-member States, an issue that exceeds the scope of this note (see for a discussion here and here). In both cases, the Court is nominally operating within the ICC Statute framework but is prioritizing the Court’s prosecutorial power over the legal rights of non-member States under international law. Note, the Court is doing this while it is facing sanctions by third states for alleged jurisdictional over-reaches, and while the OTP is facing its worst-ever ethics crisis. Arguably, the future legitimacy of the Court is bound to suffer if it stays on this confrontational course.

To conclude, we consider complementarity to be a central pillar of the legal regime created by the ICC Statute. The Court’s failure to effectively protect this principle and to afford Israel, the deferral-requesting State, an opportunity to show that it is genuinely investigating allegations of deliberate starvation in Gaza, is not likely to increase support for the Court and its operations. Given all the controversy around the case and the OTP’s handling thereof, doubling down on an extremely narrow – and in our view, untenable – legal construction of the duty to notify under Article 18 does not bode well for the Court. The judgment is likely to further exacerbate the conflict between the Court and its powerful enemies, and further jeopardize its ability to operate (as the post-judgment sanctions imposed by the United States on members of the panel illustrate).

The post Hollowing Out Complementarity: The ICC Rejects Israel’s ‘Court of Last Resort’ Admissibility Challenge appeared first on Just Security.

The Security Council’s authorization of the ISF creates what seems to be a militarized force with an aggressive counterterrorism role that will involve close cooperation with Israel. The mandate of the ISF not only raises some doubt as to the resolution’s legal basis, but also poses a serious risk to the prospects of the peaceful transition to Palestinian self-governance and Statehood that is envisaged by the resolution. It also risks backfiring in unintended ways, potentially inadvertently increasing violent extremism rather than defusing it. In this way, it seems to effectively advance neither Palestinian self-determination nor Israeli security concerns.

The ISF as a Militarized Counterterrorism Force in the Form of a Support Mission

Resolution 2803 authorizes the creation of the ISF “in close consultation and cooperation with the Arab Republic of Egypt and the State of Israel.” It is empowered to use “all necessary measures to carry out its mandate,” which includes such tasks as to “secure border areas, stabilize the security environment in Gaza by ensuring the process of demilitarizing the Gaza Strip, including the destruction and prevention of rebuilding of military, terror, and offensive infrastructure, as well as the permanent decommissioning of weapons from non-state armed groups.”

This mandate raises several questions. Most fundamentally, it raises the question of what kind of force the ISF is meant to be: a peacekeeping operation, or something else? When questioned on this, U.S. Secretary of State Marco Rubio responded that the ISF “shouldn’t be a fighting force.” His comments seem to indicate that, politically, the ISF is being framed as a peacekeeping force to support an eventual transition of governing authority over Gaza to the Palestinian Authority.

If the mandate is to be taken seriously and considered realistically, however, the ISF seems to lack the hallmarks of a traditional peacekeeping force. Broadly, peacekeeping forces must be based on three principles: consent, impartiality, and limited defensive use of force. It is important to note that these principles apply to peacekeeping generally and are not limited only to U.N. peacekeeping forces. The Leuven Manual states that these three principles are part of the framework applicable to peacekeeping universally. Although it is still early in the process, the basic building blocks of the ISF set forth in resolution 2803 do not seem likely to meet all three principles, particularly those of impartiality and limited, defensive use of force.

The Consent Prong May Have Been Met

Although not wholly clear-cut, there is at least an argument that the consent prong has been met. Though, Israel has indicated its consent (not without domestic controversy), Palestine’s case is more complicated. Although the Palestinian Ministry of Foreign Affairs issued a statement welcoming the adoption of the resolution likely constitutes Palestinian consent to the ISF, there isn’t clear consensus both as to whether the PA has the authority to consent, nor whether the PA’s statement was in fact intended to communicate formal consent. In situations of consent-based interventions, effective control, accepting sovereign responsibility, and multilateral recognition are generally key elements in determining who has the authority to grant consent (see Hathaway et. al., p. 542). Palestinian consent is not clear-cut for a variety of reasons, including because effective control and recognition might be divided in relation to Gaza; although the PA enjoys far greater recognition, it may be argued that Hamas has a greater degree of effective control in Gaza compared to the PA (here a consideration of effective control would need to assume such control after Israeli forces have relinquished theirs).

Nonetheless, since the capacity to consent stems from State sovereignty, in situations “where there are competing claims of governance and where effective control is disputed, consideration should be given to whether those claiming to represent the state accept the international law responsibilities that such recognition carries.” (Hathaway et. al., p. 542). On this principle, it is likely that the PA – and not Hamas – would be sufficiently authorised to consent on behalf of Palestine.

Structural and Operational Partiality to Israel

However, the text of the resolution indicates that the structure of the ISF likely does not sufficiently safeguard the principle of impartiality. This principle requires operational impartiality, impartiality in the mode of decision-making (i.e. procedural impartiality in the manner in which decisions are made), and impartiality in the basis for decision-making (i.e. substantive impartiality in which interests and facts guide decision-making) (see here and here). The ISF’s operational mandate and decision-making practices likely fall short. For instance, the resolution provides that the ISF is to operate in “close consultation and cooperation with” Israel and Egypt and that it “shall work with Israel and Egypt” in carrying out its mandate (para. 7). Although the oversight body established by the resolution called the “Board of Peace” (“BoP”) is mandated to create an apolitical, technocratic Palestinian committee (see paragraph 4(B)(1)), the resolution does not establish any direct relationship between the ISF and that committee that would, at least on its face, facilitate direct cooperation with the ISF; rather, the ISF and the committee both, separately, fall under the supervision of the BoP. Additionally, paragraph 7 of the resolution indicates that the ISF will “work with” not only Israel and Egypt but also a new Palestinian police force of some kind to implement the ISF mandate – but this police force is not included in the higher-level and likely more comprehensive “consultation and cooperation” role that is given to Egypt and Israel. Egypt’s ostensible role, then, is to be a counterbalance to Israeli involvement, perhaps with the intent of protecting against partiality to Israel. It does not, however, eliminate this risk entirely.

While Egypt may be able to take a leading role to represent and protect Palestinian interests in the ISF, and its involvement may limit wholly unbridled Israeli influence over the ISF’s activities by imposing a political checks-and-balances system, this is unlikely to fully balance out Israeli influence. This is not only because, as a matter of political reality, Israel’s interests are highly likely to come with the powerful backing of the U.S. (and thus the BoP that will be chaired by the United States). It is also because the resolution seems, at least facially, to grant a more expansive set of authorities to Israel than it does to Egypt. It stipulates, for example, that the “standards, milestones, and timeframes linked to demilitarization” will be agreed between the “IDF [Israel Defence Forces], ISF, the guarantors, and the United States.” Egypt is not clearly accounted for in any of those categories. The implication of this is that the IDF will be empowered to (potentially significantly) influence not only the process for its own withdrawal but also the standards for the ISF’s “control and stability” in Gaza that the resolution sets as a prerequisite to IDF withdrawal, without a clear structural guarantee of  Egyptian (or Palestinian) involvement. This seems to open the door to an unbalanced level of Israeli influence on the ISF’s implementation of its mandate.

This, of course, is not to suggest that the ISF ought not to cooperate with Israel at all. Indeed, such an approach would be unrealistic. To guard against impartiality, however, Israeli involvement should be limited to only a logistical support role such that it enables the ISF to effectively carry out its mandate, without allowing it to substantively influence the ISF’s actual operational decision-making or other activities.

A (Non)Limited Use of Force Mandate

It is not unprecedented for peacekeeping forces to be issued robust mandates with an authorization to use armed force. For instance, the Security Council authorized peacekeeping operations to undertake targeted offensive operations in Somalia and the Democratic Republic of Congo (although these missions have had mixed levels of success).

However, the U.N. Department of Peacekeeping Operations has indicated that there is a difference between “robust peacekeeping,” which involves the use of force specifically for the purpose of preventing specific threats to civilians or the peacekeeping mission itself, and “peace enforcement,” which involves the use of force against specific groups regardless of any particular threat to civilians or the mission. But even peace enforcement can differ from an enforcement operation under the Security Council’s Chapter VII authorities, which may more clearly involve a military effort to defeat an adversary (although the lines are somewhat blurred between these various distinctions). Furthermore, the Leuven Manual suggests that peacekeeping forces deployed to provide security support “differ from enforcement operations in which armed force is applied” and from forces tasked with “the imposition of a political solution upon warring parties by force of arms in situations where governmental authority has broken down” (Leuven Manual, p. 4).

The ISF’s mandate seems to indicate that it will serve exactly the twin purposes identified by the Leuven Manual: use of armed force, and the imposition of a political solution. Its primary responsibility is, in fact, imposing a political solution for Gaza where governmental authority has broken down on both sides. Years-long contestation for both military control and political legitimacy amongst the warring parties has also left the area of concern with heavily fragmented and ineffective governmental authority, deeply affected by Israeli occupation and with split claims to legitimate governance between the PA and Hamas.

The fact that the ISF’s mandate involves the “destruction” and “prevention of rebuilding” of “military, terror and offensive infrastructure” also indicates that its duties may include using armed force proactively to carry out enforcement operations. Executing a proactive mandate to “destroy” military, terror, and offensive infrastructure would necessarily require military operations well beyond the limited use of defensive force contemplated by traditional peacekeeping operations.

With all of the above taken together, the ISF thus appears to constitute something more akin to an ad hoc counterterrorism operation exercising military force, rather than a peacekeeping operation. This is particularly noteworthy given that the U.N. High-Level Panel on Peace Operations  concluded in 2015 that U.N. peacekeeping missions “are not suited to engage in military counter-terrorism operations,” but rather that such activity ought to be undertaken by other entities such as “an ad hoc coalition authorized by the Security Council” (see para. 119). It appears that Gaza will have the latter, rather than the former.

A Precarious Legal Basis for the Authorization of a Militarized Force

If the ISF is indeed a militarized counterterrorism operation rather than a true peacekeeping operation, this raises an important question: what is the legal basis for authorizing a mandate involving the use of force, for a purpose other than self-defence?

Though the Security Council is empowered to authorize the use of force under Chapter VII of the U.N. Charter, the resolution conspicuously omits reference to Chapter VII as per usual practice (although an explicit reference is not required). In any case, the Security Council’s power to authorize force under Chapter VII is not unlimited, as confirmed in Tadic  where it was held that the Security Council cannot go beyond its jurisdiction and that the Charter did not conceive of it as being unbound by law (para. 28).

At the very least, the procedural conditions within Chapter VII must be met. For instance, under Article 39, the Security Council must first determine that there exists a threat to international peace and security before it is able to authorize the use of force under Article 42 of the Charter. Notably, resolution 2803 does not explicitly make such a determination, nor does it reference any prior such determination by the Council. Instead, it determines that the situation in Gaza constitutes a threat to “the regional peace and security of neighboring states.” This may not satisfactorily constitute the requisite determination under Article 39, which uses the specific language of “international” peace and security. As Lieblich notes, however, the combination of the word “regional” with reference to “neighboring states” could also be taken to mean “international.” Accordingly, there is some legal ambiguity; it is possible that the ISF’s authorization is based on an implicit invocation of Chapter VII authorities after having made the requisite finding under Article 39, but it is not entirely clear.

Even if so, however, the Security Council’s power to authorise force under Chapter VII is limited by Article 24(2), which provides that the Security Council shall act in accordance with the “Purposes and Principles” of the U.N. in discharging its duties under Chapter VII. An authorization to use force cannot be contrary to the principles enshrined under Articles 1 and 2 of the Charter. These include, inter alia, the right to self-determination, political independence of States, and the peaceful settlement of disputes by member States. The ISF’s partiality and expansive use of force mandate would appear to risk undermining some among these principles.

In particular, the ISF’s mandate to militarily impose, under what may end up being a certain level of Israeli direction, a political solution where the priorities and legitimate political actors are determined by foreign entities potentially runs the Security Council into the risky territory of authorizing force to stifle Palestinian’s rights to self-determination.  For instance, paragraph 9 of the U.S. Plan establishes that Gaza will be governed by a temporary Palestinian committee made up of “qualified” Palestinians and international experts, under the “oversight and supervision” of the Board of Peace. Paragraph 4 of the resolution references participation by “competent” Palestinians that are “championed” by the Arab League; it does not reference international experts at all, leaving ambiguity as to whether the committee will be wholly Palestinian, or not. Neither text indicates the mechanism or metrics or by which Palestinians will be determined to be sufficiently “competent” or “qualified,” nor how international experts will be chosen (if they are to be included). The resolution also leaves the time horizon for the committee’s governance under the Board of Peace open-ended, indicating that once the Palestinian Authority reform program has been “faithfully” completed and Gaza redevelopment has moved forward, a pathway “may” be in place for Palestinian self-determination – without indicating how such progress will be determined, nor by whom. Paragraph 8 authorizes the BoP through December 2027, allowing for additional reauthorization without any clear time limit. No consultation with Palestinian authorities for such reauthorization is indicated in the text. This open-ended framework could theoretically leave the Board of Peace – and the ISF – in place for the interminable future, with limited and unclear Palestinian decision-making. At the least, these arrangements leave open the question of how well the resolution comports with the Charter’s principle of self-determination.

This leaves the resolution on ambiguous legal ground: although one might fairly point to the PA’s expression of support (even if after the passing of the resolution), the lack of a clear triggering of Chapter VII authority leaves some room for doubt, and there is at least an argument to be made that the transitional frameworks imposed by the resolution do not entirely comport with Article 24(2)’s constraints on the use of Chapter VII authority.

The Strategic Failures of the ISF and of Militarizing Transitions

Beyond the legal murkiness of the ISF’s mandate, it sets itself up for potential strategic failure. Militarized transitions frequently collapse the distinction between supporting self-determined political processes and imposed political outcomes. An emphasis on disarmament through force and stabilization through enforcement risks reproducing or exacerbating the underlying root causes of the conflict itself, including any applicable cycles of power or inequality. This could cost the mission crucial public support on the ground and potentially backfire including by inciting further extremism that undermines Israeli security.

The ISF in essence continues Israel’s attempts of eradicating Hamas, not through political negotiation or processes with meaningful Palestinian participation, but through what are essentially foreign-led counterterrorism operations. In so doing, it continues similar conditions to the active armed conflict that the resolution purports to put an end to – simply now, instead of the IDF fighting Hamas, it will be the ISF. Following the passage of the resolution, Hamas has indicated that it will not voluntarily disarm, increasing the likelihood that to carry out this aspect of its mandate the ISF may indeed resort to use of force. In the end, Palestinian civilians will be left to continue to suffer the perils of what may amount to the same violent war, but with the ISF as another belligerent.

To this point, a stabilization force that is in effect undertaking counterterror operations with the use of armed force in dense urban settings will inevitably cause collateral civilian casualties. This has the strong likelihood of creating enmity and animosity amongst civilians towards a force that they already do not identify with, potentially radicalizing them against that force. As a consequence of both these factors, there is a serious risk that the ISF may push civilians closer to Hamas and extremist violence against an international force they perceive to be the enemy.

Additionally, it is a complicated reality that Hamas – not the PA – has governed Gaza since 2007. Paragraphs 2 and 9 of the resolution, in combination with the broader mandate of the ISF, enshrine what is in essence a change in governing authority in Gaza to the PA. Externally, and potentially forcefully, changing the seat of political power via a process that largely excludes meaningful domestic political participation or consultation may push some civilians to the fringes of the political arena where extremism thrives.

Although rife with its own challenges, one approach that might be preferrable would be the establishment of free and fair domestic political processes. Limiting Hamas’ involvement in governance this way would reflect and empower Palestinian self-determination and may mitigate some of the risks identified above. Of course, there are no guarantees that this would be successful (Hamas has won elections before, for instance), and such a process comes with its own obvious risks and problems. But it is not entirely implausible; polling shows that support for Hamas amongst Palestinians has sharply declined.

These issues expose a larger strategic fallacy inherent in militarized transitional frameworks: the assumption that political and public legitimacy can be engineered through armed enforcement. On the contrary, such an approach risks not only widespread public opposition and disapproval, but also can actively cause increased radicalization and extremism.

These risks are compounded especially when the force is perceived as being partial to and serving the interests of an occupying power. Because of the ISF’s intended close cooperation with Israel, it inherits the psychological baggage of occupation. For many Palestinians, an ISF whose mandate is effectively co-produced with the occupying power will be viewed not as a transitional support mechanism but as an extension of Israeli coercive capacity under international cover. Such perceptions are not merely symbolic; they decisively determine the force’s ability to operate, secure cooperation, and create conditions conducive to peaceful and stable political processes.

Ultimately, a militarized transition structured this way and predicated on shaky legal grounds can take on the appearance of merely rebranding externally imposed control as transitional governance. In doing so, it risks perpetuating insecurity, undermining trust, and creating new hostile non-State actors in the process.

The post An Analysis of Resolution 2803 and the International Stabilization Force: A Militarized Enforcement Mission with Precarious Legal and Strategic Implications appeared first on Just Security.

The catalog below organizes our collection of articles primarily about the war into general categories to facilitate access to relevant topics for policymakers, researchers, journalists, scholars, and the public at large. The archive will be updated as new pieces are published.

We welcome readers to use the archive to follow the unfolding situation and generate new lines of analysis. To search headlines and authors, expand one or all of the topics, as needed, and use CTRL-F on your keyboard to open the search tool. The archive also is available in reverse chronological order at the Israel-Hamas War articles page.

The post Just Security’s Israel-Hamas War Archive appeared first on Just Security.

For years, Israel has increasingly faced accusations of violating international humanitarian law. These accusations have only increased since the start of the Israel-Gaza war in 2023, with criminal warrants issued by the International Criminal Court (ICC) against certain Israeli leaders and a genocide case pending before the International Criminal Court (ICJ). Israel’s internal military justice system has been supposed to serve as a substitute for at least some international investigations; for years, Israel has maintained that it can investigate itself, by itself. However, some political actors in Israel have made it their goal to weaken any effective internal investigation mechanism. These trends began long before the current war.

The Azaria Scandal

In 2016, Elor Azaria fatally shot Abdel Al-Sharif, a Palestinian who was lying wounded on the ground, minutes after Al-Sharif stabbed an Israeli soldier. Israel’s Military Advocate charged Azaria with homicide, and he was convicted and sentenced to a short prison term. Azaria’s case became a rallying cry for contingents on Israel’s right, fueling protests and dissent. Some protesters openly called for the murder of the then-Chief of Staff of the IDF because of his criticism of Azaria’s actions. A senior government member claimed that “soldiers fear the Advocate General more than they fear Yehya Sinwar.” referring to the (now-deceased) Hamas leader. The Minister of Defense, who backed the Advocate General and the investigation, was subsequently dismissed by Prime Minister Netanyahu.

Around the same time, B’Tselem and other prominent human rights organizations in Israel announced they had stopped cooperating with the Military Advocate General’s Office (MAG) after the MAG was reluctant to thoroughly investigate and prosecute cases of abuse of power by soldiers. B’Tselem’s report revealed that only 3 percent of complaints about violence against Palestinians resulted in criminal indictments against the perpetrators.

While the Azaria case was not the first time the legitimacy of the MAG was questioned in Israel, it appears that ever since the case, there has been an increasing political opposition to the role of the MAG, with a growing sentiment that the MAG is “tying the hands” of the military from successfully fighting terrorism and Israel’s enemies. Whether the growing reluctance to pursue MAG prosecutions resulted from these external pressures or the internal unwillingness of the MAG to investigate soldiers, the fact remains that in recent years military prosecutions in Israel have become increasingly rare. And then the 2023 war began.

MAG in The Israel-Gaza War and The Sde Teiman Case

The MAG’s reluctance, to put it mildly, to investigate alleged crimes committed by Israeli military personnel has been well documented. Human rights organizations and researchers have pointed out several specific cases, such as the World Kitchen strike, where seven members of the organization were killed in a drone strike. An internal investigation revealed violations of orders and military regulations, but no criminal probe was initiated against the soldiers who ordered the strike. Other reports focused on the reckless (again an understatement) use of AI in carrying out strikes and estimating civilian casualties. These actions, too, were carried out with impunity.

A notable exception, however, can be found in the multiple MAG investigations launched into the operation of the Sde Teiman military base, which has served as an internment camp during the war. Sde Teiman has gained notoriety for alleged detainee abuse, with dozens of reported detainee deaths. Investigation probes were launched into alleged misconduct in the compound, with some cases already resulting in convictions.

One of these investigations took place after a detainee was hospitalized, and a medical exam raised suspicions of sexual abuse. Israeli Military Police (MPs) arrived at the Sde Teiman compound, but the suspected IDF soldiers refused to cooperate, leading to infighting, with some MPs being attacked and held at gunpoint. Information about the incident spread across social media, with right-wing political agitators, including Members of Knesset, calling on the public to come to the compound to protest the soldiers’ detention. A crowd gathered outside Sde Teiman, eventually breaking into the camp. At last, the MPs managed to arrest the soldiers and took them to a military court in Beit Lid. The protests followed them there. Once again, protesters stormed into the Beit Lid military compound, raiding the military court and “searching” for the arrested soldiers. For hours, they acted with impunity. The Israeli Police responded slowly, seemingly tolerating the protesters’ actions.

In the following days, the MAG officers overseeing the investigation were doxed, with some being “subjected to personal attacks, harsh insults, and even real threats.” Senior government members criticized the MAG for carrying out the raid and arresting the soldiers. In response, Major General Yerushalmi, the head of the MAG, decided to secretly leak a surveillance video showing soldiers abusing the detainee. She later explained that her actions were meant to protect her officers and dispel false accusations against the corps.

From that point, the leaking of the video, rather than the abuse shown in it, has become the primary focus. Political leaders have called for a thorough investigation into the leak, and a petition has been filed with the Israeli High Court of Justice, requesting an independent inquiry into the issue. In response, Yerushalmi and the MAG announced that the corps is actively investigating the leak. All along, Yerushalmi and some of the senior officers in the corps knew the source of the leak – it was them. Ultimately, this attempted cover-up was exposed when one of the officers underwent a routine security clearance ahead of a judicial nomination, and disclosed information about the leaked video during a polygraph test.

Yerushalmi subsequently stepped down from the military, and a criminal investigation was launched into the leak and cover-up. However, for some political figures, this was not enough. Yerushalmi was branded a villain by politicians and journalists, with the Minister of Defense stating that he would strip her of her rank, others labeling her a traitor.

On Sunday, November 2, Yerushalmi left a note for her family, parked her car near the beach, and disappeared. Search parties looked for her for hours but found nothing. Many assumed the worst – she couldn’t handle the pressure. Eventually, Yerushalmi reached out to her husband: she was safe. She was then taken to the hospital and later arrested. Police couldn’t find her phone, raising suspicions that the entire incident was an orchestrated scheme to destroy evidence. A prominent right-wing commentator tweeted after she was found alive: “We can resume the lynch.”

Israel’s MAG – a Look at The Future

While the Yerushalmi case is far from over and many questions remain unanswered, some factions on the political right can claim another victory against the rule of law within the military; as mentioned, Sde Teiman was among the rare significant criminal investigations launched during the war. The MAG has faced considerable criticism for not doing enough to hold Israeli soldiers accountable for violating the military code of conduct. Haaretz newspaper, citing sources within the MAG, reported that after the Sde Teiman events, Yerushalmi refused to open new investigations against soldiers – perhaps out of fear. For some, even that was too much.

The MAG, along with its complementary departments in the military, enjoys extensive investigative and prosecutorial powers, acting independently from the general chain of command. Nevertheless, these powers are meaningless if they are not used. And for at least the past two years, not enough has been done.

This lack of action by the MAG has led to accusations that Israel’s internal justice system lost its complementarity, prompting foreign jurisdictions to initiate their own investigations into the conduct of Israeli soldiers during the war. Without taking a definitive stance on the issue, the current situation does not seem promising; the military is hesitant to investigate misconduct by its soldiers, and the few cases that are investigated provoke such public and political backlash as to discourage any future inquiries. So far, the discussion surrounding Israel’s complementarity has centered on the unwillingness aspect of the complementarity doctrine. However, with the increasing pressures on the MAG, the ability to meaningfully investigate and prosecute violations is increasingly put into question.

At this point, it is crucial to highlight that safeguarding the Israeli MAG is in the best interest of everyone who values the rule of law, regardless of their broader views on the conflict. Even for those who believe Israel is unwilling or unable to investigate itself, especially with respect to high-ranking officials, the capacity of international tribunals to effectively and timely investigate and prevent violations is, at best, limited. The authority of the MAG within the IDF enables it to influence policy in real-time, not only enforcing but also preventing violations of international law. In this regard, a functioning internal review mechanism cannot be fully replaced by an international body, which has inherently limited resources and access to enforce compliance in real-time. Even when it comes to holding violators accountable, international institutions naturally face limitations in access to information and evidence, and cannot meaningfully replace an effective internal investigative system.

That said, the Israeli MAG seems to be increasingly unable to fulfill its duties in holding violators accountable, partly due to political pressures, including from certain government officials. Therefore, it is essential for Israeli leaders, both in the military and civilian sectors, to safeguard the legitimacy and independence of the MAG; Israel’s allies should also emphasize the critical role the MAG plays in their ongoing cooperation with Israel. Additionally, members of the international law community must voice their support for a robust and independent MAG. As noted above, dismissing the role of the Israeli MAG would be counterproductive; while the MAG faces significant and growing challenges to performing its duties independently and effectively, there is no fully adequate alternative to an internal compliance institution.

Finally, the Sde Teiman case demonstrates that many in the MAG still value the rule of law and the enforcement of international norms, including the officers involved in the investigation and the higher chain of command that authorized and supported them. This is said regardless of whether Yerushalmi should have acted differently with respect to the leak and cover-up. Ultimately, the Sde Teiman soldiers accused of abusing prisoners were indicted with charges of aggravated battery and abuse, and their trial is still ongoing. Therefore, while many changes are needed in the MAG, there is hope, and an urgent need, that the MAG will once again uphold the rule of law and enforce humanitarian duties during war.

The MAG and the Judicial Overhaul

The growing pressure on the MAG office takes place within the broader context of the judicial overhaul in Israel, where the current government has attempted to pursue several constitutional reforms aimed at weakening the independence of the judiciary. One of the motivating arguments for the overhaul has been the perceived restraints imposed by the judicial establishment on the IDF. For example, the Israeli High Court of Justice has also been criticized for protecting, albeit only partially, the rights of detainees during the war. Justice Ruth Ronen oversaw a petition regarding the detention conditions of Palestinian prisoners and conducted a surprise visit to a detention facility. In response, she was chastised by government ministers, with protesters throwing toilet paper at her house following her insistence that it be provided to prisoners.

The attacks on the MAG can thus be viewed as a part of a broader attempt to weaken the legal establishment in Israel. Even in the Sde Teiman case, government officials accused Gali Baharav-Miara, the Attorney General, of cooperating in the cover-up of the leak and demanded that she step down from the investigation. The Minister of Justice, Yariv Levin, attempted to appoint the State Ombudsman for Judges to lead the investigation. The Supreme Court ruled on the matter, deciding that neither the Baharav-Miara nor the Ombudsman could oversee the investigation, instead requiring Levin to appoint an experienced public employee with no political ties to fill the role. Levin chose a retired judge, whose appointment is also set to come under the Court’s scrutiny. Regardless, if the investigation were to link Baharav-Miara to the cover-up of the leak, the government could use this as grounds for replacing her, something it has unsuccessfully attempted to do for months; the AG is the chief prosecutor in Israel, and her replacement could influence Netanyahu’s ongoing corruption trial.

These dynamics demonstrate the role of the MAG in upholding the rule of law in Israel as part of the broader judicial apparatus. The weakening of the MAG affects not only the IDF’s ability to carry out its missions lawfully, but also the broader protection of the rule of law in Israel.

The post Persecuting the Prosecutors: Israel’s Military Lawyers Under Pressure appeared first on Just Security.

Germany’s preliminary objections are not publicly available but it is easy to guess what they say. During last year’s provisional measures proceedings, Germany did not argue that Israel complied with IHL in Gaza or even that Israel had not committed genocide in Gaza. Quite the contrary. Germany stunned some observers when it told the Court: “It is not a lack of funding that prevents humanitarian aid from reaching the Palestinian population. The real problem is the restrictions on the entry and distribution of humanitarian aid.” The restrictions in question were imposed by Israel.

Instead, Germany invoked the “indispensable third party” doctrine originating from the Court’s Monetary Gold case. According to this doctrine, the Court should not exercise jurisdiction over a claim brought by one State against a second State if resolving that claim would require the Court to determine the legal rights or responsibility of a third State not before the Court. According to Germany, the Court cannot resolve Nicaragua’s claims against Germany without determining the legal responsibility of Israel. Israel is not a party to the case. Hence, Germany argued, Nicaragua’s claims are inadmissible and the case should be dismissed.

Germany’s argument is misguided and the Court should reject it. Nicaragua’s claims against Germany are admissible and the case should proceed. Nicaragua’s claims do not depend on Israel’s legal responsibility, and the Court does not need to determine Israel’s legal responsibility to resolve Nicaragua’s claims. The Court needs to find only that Germany failed to prevent Israeli individuals from committing genocide, is complicit in the commission of genocide by Israeli individuals, or failed to ensure that Israeli individuals respect IHL. While Israel incurs legal responsibility as a State for the acts of its officials, Germany’s legal responsibility does not depend on Israel’s legal responsibility as a State. It follows that Israel is not an “indispensable third party.”

The Court’s case law is clear. The Court will decline to exercise its jurisdiction only if the legal rights or responsibility of a State not before it “would not only be affected by a decision, but would form the very subject-matter of the decision.” More precisely, the Court will decline to exercise its jurisdiction only if the legal responsibility of a State not before it is a logical prerequisite for the legal responsibility of the State before it. In contrast, the Court will exercise its jurisdiction even if the legal responsibility of a State not before it is a logical implication of the legal responsibility of the State before it. Israel’s legal responsibility may be a logical implication of Germany’s legal responsibility, but it is not a logical prerequisite for Germany’s legal responsibility. The “indispensable third party” doctrine does not apply, and Nicaragua’s claims are admissible.

The Duty to Prevent Genocide

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, as its name implies, is primarily concerned with preventing and punishing the crime of genocide. Article 1 confirms that genocide is a crime under international law which States undertake to prevent and to punish. It is axiomatic that only individuals commit crimes, and only individuals can be punished. In contrast, States commit internationally wrongful acts, for which they owe reparation. Article 2 defines genocide. Article 3 provides that genocide and related acts (conspiracy, incitement, attempt, complicity) are punishable. Again, only individuals can be punished. Article 4 refers to “persons committing genocide” or related acts. Article 5 refers to “persons guilty of genocide” or related acts. Article 6 refers to “persons charged with genocide” or related acts. Article 7 concerns extradition (of persons). The implication is clear. The legal duty to prevent genocide is, first and foremost, a legal duty to prevent individuals from committing genocide.

In 2007, the Court held for the first time that the Genocide Convention also imposes a legal duty on States not to commit genocide. In Bosnia and Herzegovina v. Serbia and Montenegro, the Court reasoned as follows:

the expressly stated obligation to prevent the commission of acts of genocide… requires the States parties, inter alia, to employ the means at their disposal … to prevent persons or groups not directly under their authority from committing an act of genocide or any of the other acts mentioned in Article III. It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide. (para. 166)

Simply put, a State’s legal duty to prevent individuals from committing genocide implies a State’s legal duty not to commit genocide itself. A State commits genocide when its officials or others under its effective control commit genocide. In that case, the individual commits a crime while the State commits an internationally wrongful act. Crucially, State responsibility does not displace individual responsibility. As the Court observed, “duality of responsibility,” responsibility of States and responsibility of individuals, “continues to be a constant feature of international law.”

The duty to prevent genocide remains, at its core, a duty to prevent individuals from committing genocide. This is plain from the Court’s finding that Serbia failed to prevent members of Bosnian Serb militias—whose acts were not attributable to any State—from committing genocide at Srebrenica. Importantly, the duty to prevent genocide is not limited by territory but instead applies to a State wherever it may be acting or may be able to act in ways appropriate to meeting its obligations (para. 183). Accordingly, a State has a legal duty to use its influence to prevent individuals in another State from committing genocide, including another State’s officials.

In most contexts, it is harmless to speak of a State’s duty to prevent another State from committing genocide. All this means is that one State has a duty to prevent certain individuals from committing genocide, and those individuals are officials of another State or under its effective control. In such cases, preventing those individuals from committing genocide also prevents the other State from committing genocide. However, speaking of a State’s duty to prevent another State from committing genocide should not obscure the fact that what is ultimately at stake is preventing individuals from committing genocide. The duty to prevent genocide works exactly the same way whether the individuals in question are private persons (including members of a non-State armed group) or officials of a State.

Germany has a legal duty to prevent Israeli officials over whom Germany has influence from committing acts of genocide. If Germany fails to use its influence, and those Israeli officials commit genocide, then Germany has breached its legal duty to prevent genocide in the same way that Serbia breached its legal duty to prevent genocide. Of course, Israel will also incur State responsibility for acts of genocide committed by its officials. But the Court does not need to find Israel responsible for those acts in order to find Germany responsible for failing to prevent those acts. The Court needs to find only that Israeli officials committed acts of genocide and that Germany failed to use its influence to stop them.

It follows that Israel is not an indispensable third party with respect to Nicaragua’s claim that Germany breached its legal duty to prevent Israeli officials from committing genocide in Gaza. Germany’s responsibility for failing to prevent genocide does not depend on Israel’s responsibility for committing genocide. It depends on Germany’s alleged failure to use its influence to prevent Israeli officials from committing genocide.

Put another way, Germany’s legal responsibility is not logically dependent on Israel’s legal responsibility. Consider the following propositions:

P1. Germany had a legal duty to use its influence to prevent Israeli officials from committing genocide.
P2. Germany failed to use its influence.
P3. Israeli officials committed genocide.
C1. Therefore, Germany breached its legal duty.

Of course, Israel’s legal responsibility is a logical implication of one ground of Germany’s legal responsibility (P3, above) and an additional true premise (P4, below):

P3. Israeli officials committed genocide.
P4. Israel is legally responsible for the acts of its officials.
C2. Therefore, Israel is legally responsible for genocide.

However, Israel’s legal responsibility (C2) is not a logical prerequisite of Germany’s legal responsibility (C1). It follows that Nicaragua’s claim (P1, P2, P3, C1) is admissible and should be adjudicated on its merits.

Aiding and Assisting Genocide versus Complicity in Genocide

Nicaragua also claims that Germany breached its obligations under the Genocide Convention “by providing aid, including military equipment, to Israel that would be used in the commission of genocide, by Israel.” This claim might be interpreted to allege that Germany aided or assisted the commission of genocide, or it might be interpreted to allege that Germany is complicit in the commission of genocide. These allegations may sound the same, but they may have different implications under the “indispensable third party” doctrine.

Under the law of State responsibility, a State which aids or assists another State in the commission of an internationally wrongful act is responsible for doing so if it knows the circumstances and is bound by the same legal obligation. Under this rule, the Court can find Germany responsible for aiding and assisting the commission of genocide in Gaza only if it first finds that another State (Israel) committed genocide in Gaza. Of course, Israel committed genocide in Gaza if and only if its officials (or other individuals under its effective control) committed genocide in Gaza. However, under this rule, the Court must decide whether Germany aided or assisted Israel’s commission of an internationally wrongful act. Germany’s State responsibility will depend on Israel’s State responsibility. Under the indispensable third party rule, the Court would at least have to postpone hearing this claim against Germany until it decides South Africa’s case against Israel.

It is plausible that customary international law has developed a broader rule precluding a State from aiding or assisting any subject of international law—another State, an international organization, a non-State armed group, or an individual—in the violation of international law (see here). On this view, if Germany aids or assists Israeli officials in the commission of genocide, then Germany’s responsibility would not depend on Israel’s responsibility and the “indispensable third party” doctrine would not apply. This is an attractive view, but there is a more straightforward way to interpret Nicaragua’s claim.

In its application instituting proceedings, Nicaragua referred to Germany’s obligations “to not aid and assist or be complicit in genocide.” Under the Genocide Convention, complicity in genocide is a “punishable” act committed by “persons” for which persons may be “charged” and found “guilty.” As the Court has observed, complicity “includes the provision of means to enable or facilitate the commission of the crime” and involves “a person providing aid or assistance to the direct perpetrators of the crime.” One person may be complicit in the commission of genocide by another person whether they are both State officials, both private individuals, or a mix of the two.

To say that a State is complicit in genocide is just to say that a State’s official, or a person under the State’s effective control, is complicit in the commission of genocide by another person who is neither the State’s official nor under the State’s effective control (see para. 179). It follows that Germany is complicit in genocide if German officials are complicit in the commission of genocide by individuals, namely by Israeli officials. Of course, if Israeli officials committed genocide, then Israel will incur State responsibility for the commission of genocide. But the Court does not need to find Israel responsible for genocide in order to find Germany complicit in genocide. The Court needs to find only that German officials were complicit in the commission of genocide by Israeli officials.

It follows that Israel is not an indispensable third party with respect to Nicaragua’s claim that Germany is complicit in the commission of genocide in Gaza. Germany’s responsibility for complicity in genocide does not depend on Israel’s responsibility for genocide. It depends on Germany’s officials providing “means to enable or facilitate” Israeli officials to commit genocide.

Again, Germany’s legal responsibility is not logically dependent on Israel’s legal responsibility. Consider the following propositions:

P1. Israeli officials committed genocide.
P2. German officials are complicit in Israeli officials’ commission of genocide.
P3. Germany is legally responsible for the acts of its officials.
C1. Therefore, Germany is legally responsible for complicity in genocide.

Of course, Israel’s legal responsibility is a logical implication of one ground of Germany’s legal responsibility (P1, above) and an additional true premise (P4, below).

P1. Israeli officials committed genocide.
P4. Israel is legally responsible for the acts of its officials.
C2. Therefore, Israel is legally responsible for genocide.

However, Israel’s legal responsibility (C2) is not a logical prerequisite of Germany’s legal responsibility (C1). It follows that Nicaragua’s claim (P1, P2, P3, C1) is admissible and should be adjudicated on its merits.

The Duty to Ensure Respect for International Humanitarian Law

Under Common Article 1 to the 1949 Geneva Conventions, States have a legal duty to ensure respect for the Conventions in all circumstances. Similar legal duties arise under customary IHL. States have both a negative obligation to not contribute to violations by others, and a positive obligation to do everything reasonably in their power to prevent violations by others (see here). At a minimum, States agreed that they must ensure respect for the Conventions by the whole population over which they exercise authority, including by private persons whose actions are not attributable to their State. In Nicaragua v. United States (1986), the Court found that Common Article 1 requires States to ensure respect for the Conventions by persons or groups involved in an armed conflict not of an international character on the territory of another State. Since then, the Court has repeatedly found that Common Article 1 requires States to ensure respect for the Conventions by other States (see here, here, and here).

The principle is clear. States have a legal duty to ensure that individuals respect the Conventions. Those individuals may be private persons, members of non-State armed groups, or officials of another State. The duty remains the same. Accordingly, Germany fails to ensure respect for the Geneva Conventions in Gaza if it contributes to violations by Israeli officials or fails to use its influence to prevent violations by Israeli officials. Of course, Israel is responsible for the acts of its officials, including for their failure to respect the Conventions. But the Court does not need to find that Israel failed to respect the Conventions. The Court only needs to find that Germany failed to ensure that Israeli officials respect the Conventions.

It is true that the Geneva Conventions impose legal obligations directly onto States as such (in contrast to the Genocide Convention, as explained above). At the same time, grave breaches of the Geneva Conventions are committed by persons, including by individual combatants and noncombatants, who must be brought to trial and face penal sanctions. Similarly, war crimes under customary international law are committed by individuals and incur individual criminal responsibility. The Geneva Conventions recognize that persons commit breaches of the laws and customs of war, and certain IHL rules expressly impose legal obligations directly on individuals. At a minimum, a State fails to ensure respect for the Geneva Conventions and customary IHL when it fails to use its influence to prevent individuals, including officials of other States, from committing grave breaches or war crimes under customary IHL, or from violating other IHL obligations addressed to them as individuals.

For its part, Nicaragua alleges that Germany failed to ensure respect for the Geneva Conventions with respect to grave breaches and “other war crimes.” In other words, Germany failed to use its influence to prevent Israeli officials from committing grave breaches and war crimes under customary IHL. Of course, Israel incurs State responsibility for acts of its officials that contravene both Israel’s legal obligations as a State and its officials’ legal obligations as individuals. But Germany’s failure to ensure that Israeli officials respect IHL does not depend on Israel’s responsibility as a State or the lawfulness of Israel’s actions as a State.

As before, Germany’s legal responsibility is not logically dependent on Israel’s legal responsibility. Consider the following propositions:

P1. Germany has a legal duty to ensure that Israeli officials respect IHL.
P2. Germany failed to use its influence.
P3. Israeli officials failed to respect IHL.
C1. Therefore, Germany breached its legal duty.

Of course, Israel’s legal responsibility is a logical implication of one ground of Germany’s legal responsibility (P3, above) and an additional true premise (P4, below).

P3. Israeli officials failed to respect IHL.
P4. Israel is legally responsible for the acts of its officials.
C2. Therefore, Israel is legally responsible for failing to respect IHL.

However, Israel’s legal responsibility (C2) is not a logical prerequisite of Germany’s legal responsibility (C1). It follows that Nicaragua’s claim (P1, P2, P3, C1) is admissible and should be adjudicated on its merits.

Conclusion

Israel is not an “indispensable third party” to the case brought by Nicaragua against Germany. Nicaragua’s central claims against Germany—failure to prevent genocide, complicity in genocide, and failure to ensure respect for IHL—do not require the Court to determine whether Israel has committed genocide or violated IHL. Instead, these claims require the Court to determine whether Israeli officials have committed genocide or violated IHL. While the acts of Israeli officials are imputable to Israel, the Court need not impute these acts to Israel in order to resolve Nicaragua’s claims. Israel’s legal responsibility is not a logical prerequisite of Germany’s legal responsibility, and Israel’s legal responsibility does not form the “very subject matter” of the case against Germany. The case should proceed, and the Court should decide whether or not Germany breached its legal obligations to prevent genocide and ensure respect for IHL in Gaza.

The post Nicaragua v. Germany: Why Israel is Not an Indispensable Third Party appeared first on Just Security.

During the war, we were part of a group of Israeli international lawyers who wrote some 20 letters to senior officials in Israel, from the Prime Minister downwards, challenging the legality of measures taken by Israel in and around the Gaza Strip. The letters were written in Hebrew, and their informal English translations can be found in Verfassungsblog (the list has been periodically updated by Kai Ambos). 

The letter referred to in the recent blog post was written in reaction to a media report of July 2025 that Minister of Defense Israel Katz ordered the IDF to make plans for establishing a “humanitarian city” on the ruins of Rafah, in which a large part of the Gaza population was to be concentrated after being security-vetted. In our letter of July 10 to Minister Katz and the IDF Chief of Staff (an English translation of which was later published on Just Security), we criticized the plan as manifestly unlawful under international law and warned that carrying it out would likely generate individual criminal responsibility for those involved. We also warned that, if carried out, the plan might be interpreted as an act of genocide (the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part).[1] Eventually, the Minister’s plan was not implemented by the IDF. Whatever the other evidence may be on the intent required to prove genocide, we do not consider that our letter, which only concerned the plan’s implications had it been realized,  can support the conclusion that Israel is committing genocide in Gaza.

Eyal Benvensiti

Natalie Davidson

Moshe Hirsch

Tamar Hostovsky Brandes

David Kretzmer

Doreen Lustig

Tamar Megiddo

Yael Ronen

Yuval Shany

– – – – – – – – – –

[1] The Hebrew version of the relevant sentence in the letter read: ריכוז האוכלוסייה במחנה עלול להתפרש כיצירה בכוונה תחילה של תנאי חיים שיש בהם כדי להביא להשמדתה הפיזית של חלק מהקבוצה, ולפיכך ליפול בגדר האיסור על רצח עם.

The post A Point of Clarification Re the International Lawyers’ Statement on Gaza appeared first on Just Security.

Although the situation in Gaza has changed in recent days – a fragile ceasefire has been reached – the letter we drafted this summer remains highly relevant. We hope that it will continue to attract new adherents among our internationalist colleagues, thus demonstrating that beyond our sensitivities and doctrinal differences, there is a great convergence of views on this situation, which constitutes a major challenge for the future of our discipline.

Finding Agreement

After crafting the statement this summer, we invited tenured academics, doctors of law, and specialists in general international law and/or international criminal law to sign. We initially limited our contacts to French-speaking academics, who were the most easily and immediately accessible to us. We quickly collected more than 150 signatures from some 15 countries, including from some of the most prominent academic voices in the field. Truthfully, in the middle of August, this large-scale mobilization surprised even us. It testified to the fact that the text responded to a need, to a desire for many internationalists to take a stand as lawyers and speak out as a profession by extricating oneself as much as possible from the extreme politicization of the subject.

For the second phase, we opened the text for signature by non-French-speaking colleagues on all continents. We now have translations of the text in English and Spanish, which can be found at the bottom of the page. We have since reached a total of 276 signatures, with the possibility that more may join.

The appeal addresses the following eight issues: 1) denial of the right to self-determination of the Palestinian people, 2) the Oct. 7, 2023, attacks on Israel as war crimes and crimes against humanity that can be justified by no cause, 3) no right to self-defense of Israel under Article 51, but right and duty to protect its population, 4) violations of human rights, war crimes and crimes against humanity as part of Israel’s response in Gaza, 5) Genocide, 6) serious violations in the West Bank, 7) responsibilities of States and persons, and obligation of Parties to the Rome Statute to cooperate with the International Criminal Court, and 8) Obligations erga omnes and norms of jus cogens. Obligations of all states in this regard and complicity.

These eight points made it possible to stick to legal observations, putting aside as much as possible affects and value judgments. The form of the appeal was therefore likely to please academics, but it did not correspond what is generally expected from an “op-ed” published in the press (that is more the expression of an opinion than a statement on points of law). Still, the French newspaper Liberation published the text as part of a multi-page feature on the situation in Gaza in its Aug. 8 print edition. Several other French-language newspapers have also published the appeal: in Canada (La Presse and Le Devoir, with an article based on an interview with Professors Geneviève Dufour and David Pavot), in Belgium (Le Soir) in Portugal, (CNN Portugal ), and in Senegal (Kewoulo).

The Most Sensitive Text

Of all the legal findings, the most sensitive is the one relating to genocide. On this subject, we wanted to take into account everyone’s sensitivities and perceptions. The crime of genocide requires one to prove a special intent (the “dolus specialis”) to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such, in addition to specific acts listed in Article II of the 1948 Genocide Convention.  Many of us stumbled on this question of genocidal intent. It was clear to everyone that patterns of crimes corresponding to the acts defined in Article II were committed. But in the fog of the armed conflict between the Israel Defense Forces and Hamas, the key question was whether these crimes were accompanied by the requisite dolus specialis. On this point, it seemed to us that, over time, we had indeed witnessed the repeated declarations by high-level Israeli officials reflecting not only a hatred and dehumanization of the Palestinians, but more specifically a plan to destroy the Palestinian population of Gaza.

In an April 11 op-ed, published by the French newspaper Le Monde, we noted a March 19 tweet by Defense Minister Israel Katz that we believed was a transparent expression of genocidal intent, promising Palestinians in Gaza “total destruction and devastation.” This declaration of intent was also largely supported by the pattern of indiscriminate attacks carried out by the Israeli army, plus the  targeting of civilians, journalists, hospitals, and all the infrastructure that sustains life in Gaza, as well as the siege of Gaza and the blockade of humanitarian aid. Later, on July 7, Katz presented Israeli Prime Minister Benjamin Netanyahu with a plan to concentrate the population of Gaza in a “humanitarian city” to be established in the ruins of Rafah. This plan provoked an unprecedented reaction from a group of 16 prominent Israeli academics who sent an open letter to the Minister of Defense on July 10, published in Just Security, in which they expressed the opinion that if the plan were implemented it could result in the commission of several war crimes and crimes against humanity. Moreover, they added that this plan may also be interpreted as an act of genocide:

the concentration of civilians under extreme density and existing humanitarian conditions may be interpreted as the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part, a conduct which falls under the prohibition of genocide. Several ministers and MKs have made statements that may be interpreted as expressing such intent. The plan also appears to contradict the ICJ’s provisional measures in the South Africa v Israel case concerning possible violations of the Genocide Convention, particularly those relating to living conditions in Gaza and Rafah. These orders are binding on Israel under international law, and, in our understanding, also under domestic law.

Taking these different elements into consideration, we have therefore proposed a minimum consensus around the crystallization of the Israeli government’s genocidal intent around the “humanitarian city project,” i.e. in July 2025. This proposal, as can be seen by the number of people who signed our letter, has gathered a very broad consensus among colleagues. Such a proposal in no way excludes the view that genocidal intent was present before July. There are many well-documented reports in this regard, some of which we quote in the paragraph on genocide. What the text says very simply is that from July 2025, there is no longer any doubt among the signatories about the existence of the special intent, and consequently about the existence of an ongoing genocide. But we also say something that is always important for jurists to remind non-jurists: that this discussion on the qualification of genocide should not mobilize minds exclusively, and above all should not be the ultimate criterion for condemning what is happening in Gaza. For it is certain that in Gaza—but also in the West Bank—extremely serious crimes are being committed with immeasurable consequences, and which fall under the qualifications of war crimes and crimes against humanity and are also serious human rights violations. Even if the symbolic significance of “genocide” is immense, especially when it comes to Israel, there is no hierarchy among international crimes. Nor exclusivity.

Since the publication of the call, new developments have taken place. The Association of Genocide Scholars adopted a resolution on the situation in Gaza,  which states that Israel’s policies and actions in Gaza correspond to the definition of genocide reflected in Article II of the Convention, but also to the definition of war crimes and crimes against humanity contained in the Rome Statute of the International Criminal Court. The text was adopted by a majority of the members of the Association, but the list of signatories and their number is not made public. Moreover, the Association is not composed only of jurists or internationalist lawyers, but covers several disciplinary fields. This makes this statement complementary to the “eight-point” appeal published here.

Then, on Sept. 16, the International Commission of Inquiry on the Occupied Palestinian Territories, including East Jerusalem, presented its latest report to the U.N. Human Rights Council, in which it concluded that “Israel bears responsibility for the failure to prevent genocide, the commission of genocide and the failure to punish genocide against the Palestinians in the Gaza strip.” The 72-page report is based on a detailed analysis of the evidence collected by the Commission. It does not rule on the individual responsibility of the perpetrators, but on the responsibility of the State, based on the standard of proof of the existence of a “reasonable basis for conclusion.”

In early September, France, the United Kingdom, Canada, Australia, and other Western States formally recognized a Palestinian state. Beyond this recognition, however, there is the question of States adopting acts to stop the genocide in Gaza and to criminally prosecute the perpetrators, as they are obliged to do. These steps are  behind “point 8” of the appeal, which recalls that the norms of international law in question are not only norms erga omnes but are also norms of jus cogens. And that any act that would have the effect of aiding, facilitating, or providing the means for the commission of crimes knowingly constitutes complicity in the crimes committed.

As we write these lines, the tenuous ceasefire, the release of Israeli hostages and the release of 2,000 Palestinians detainees in exchange, is cause for relief and joy. We must hope that a peace process will follow, based on international law and the principle of a two-state solution, even if the chances for success are slim. The question of justice for crimes committed will remain, however. Plus, it is extremely important to effectively deter the commission of further crimes in Gaza and in the West Bank. For these reasons, we feel that our appeal remains just as relevant today.

* * *

Link to the statement and current signatories

[Editor’s note: Readers may also be interested in: Letter to the Editor, A Point of Clarification Re the International Lawyers’ Statement on Gaza, Just Security (November 13, 2025)]

The post International Lawyers Unite in Joint Statement on Gaza appeared first on Just Security.

Involvement of the Security Council in the Gaza tragedy is a positive development. If one thing has been clear throughout this catastrophe, it is that the parties cannot be left to solve this themselves. However, the draft, as reported, is rife with fundamental legal problems and ambiguities that if not resolved and clarified, would ultimately harm the resolution’s legitimacy and its potential to both solidify calm in Gaza and move towards a more sustainable future. In this short piece, I want to highlight several immediate issues.

The draft endorses President Donald Trump’s 20-point Gaza plan, which began with a ceasefire and hostage deal, and would ostensibly end in a heavily conditioned “pathway to Palestinian self-determination and statehood.” The draft also references “the Final Communiqué of the Emergency Summit Conference of the Extraordinary Arab Summit,” a March 2025 summit in which Palestinian President Abbas agreed to the establishment of a temporary local administrative committee in Gaza, to replace Hamas rule. The draft’s key element is its recognition of the so-called Board of Peace (BoP) (chaired by Trump, and so far slated to include Tony Blair) as a “transitional governance administration” in Gaza, until “the Palestinian Authority has satisfactorily completed its reform program, the satisfaction of which shall be acceptable to the BoP.” The draft also “underscores the importance” of full humanitarian aid in Gaza, including through the U.N, the International Committee of the Red Cross, and the Red Crescent. However, it opens the door to the exclusion of “any organization found to have misused such aid” (potentially allowing the BoP to exclude UNRWA).

Operationally, the draft authorizes the BoP to act as a transitional administration, by supervising “a Palestinian technocratic, apolitical committee of competent Palestinians from the Strip,” as envisioned in the Arab Summit, which would deal with local day-to-day administration. The BoP would also be charged with reconstructing Gaza and its economy and performing any additional tasks necessary to advance the 20-point plan. Crucially, the draft also authorizes the BoP to establish an International Stabilization Force (ISF), which would work in cooperation with Egypt and Israel and would have the power to “use all necessary measures” (i.e., force) to carry out its mandate. Its role would include, inter alia, ensuring the demilitarization of Gaza. According to the draft, the mandate of both the BoP and the ISF would initially last for two years.

Legally, however, the draft is problematic in several aspects. Fundamentally, it is unclear whether the draft envisions any consent by the Palestinians, whether through the Palestinian Liberation Organization (PLO) or the State of Palestine, to BoP rule and the deployment of the ISF. Usually, when forces are deployed with Security Council authorization in a certain territory, the council notes the consent of the local government. For example, Resolution 1546, which authorized the presence of a multinational force in Iraq following the establishment of an interim government there, recognized “the request conveyed in the letter of 5 June 2004 from the Prime Minister of the Interim Government of Iraq to the President of the Council, which is annexed to this resolution, to retain the presence of the multinational force”.

Here, official Palestinian authorities are absent, both in terms of consent to the powers of the BoP and to the deployment of the force. Furthermore, it has almost no meaningful reference to Palestinian participation in decision-making. Compare, for example, Resolution 1483 (regulating the powers of the Coalition Provisional Authority in Iraq) which contained numerous references to its obligation to work with the “people of Iraq” when performing its functions. Conversely, to the extent cooperation is envisioned in the draft, it is only with Israel and Egypt.

While Palestinian president Mahmoud Abbas participated in President Trump’s celebratory Peace Summit in Egypt, he did not sign its final declaration. Indeed, the State of Palestine expressed some support for Trump’s plan, and has indicated agreement in principle to the general concept of establishing of a technical committee in Gaza (as described in the Arab Summit). But all of this is very general. It is unclear whether such support carries over to the specific arrangement envisioned in the draft. Be that as it may, if there is indeed such consent, it should be made crystal clear in any resolution, since it is key for the legal status and powers of any interim administration, as well as for increasing its legitimacy.

Crucially, in the absence of such consent, the establishment of an interim administration, deployment of forces, and authorization of force in Gaza would be coercive. For the council to authorize a coercive act, it must act under Chapter VII of the U.N. Charter, since binding enforcement measures can only be undertaken when Chapter VII is invoked (in distinction from the council’s power to make legally binding legal determinations, even without invoking Chapter VII). The usual formula to trigger Chapter VII is for the council to determine that a situation is “a threat to international peace and security.” The draft, however, determines that “the situation in the Gaza Strip threatens the regional peace and the security of neighboring states.” The intentional choice not to use the usual language of Chapter VII – although the meaning is virtually similar – appears aimed at maintaining ambiguity and allowing certain States to argue that Chapter VII wasn’t invoked, and thus to contest certain elements of the plan later on.

Additionally, when there is no local consent, a Chapter VII mandate is needed to grant the BoP the far-reaching transformative powers the draft envisions. This is because otherwise, the BoP would be an occupying entity that simply receives control over territory in Gaza from a previous occupant – Israel. However, under the of law occupation, and absent special authorization from the Security Council, the occupant must respect the status quo ante in the territory – economically, physically, and legally – and cannot radically transform its governance structure.

This is precisely why the U.S.-led coalition in Iraq sought to “enhance” its transformative powers through Resolution 1483. That resolution granted the coalition powers that were much broader than those of a “regular” occupying power, including the power to transform Iraqi institutions and its entire economic structure. To emphasize: I do not mean to defend here the transformation or occupation of Iraq; rather, I aim to highlight that in the past it was clearly understood that specific Security Council authorization was needed to exercise such broad authority in occupied territories. It should also be noted that largely in contrast to the draft, the Iraq resolutions included clear and developed provisions for cooperation and coordination with the Iraqi people and institutions.

In sum: legally, the draft leaves open the BoP’s source of authority, which in turn gives rise to doubts about the scope of its authority. Specifically, it is unclear whether it is based on consent, or on Chapter VII powers. Furthermore, it seems to almost completely disregard local self-determination as an organizing principle. The BoP is to hover above a local Palestinian committee. The ISF would only be required to cooperate with Israel and Egypt, not with local Palestinian authorities. Understandably, some of the ambiguities in the draft are likely meant to accommodate irreconcilable views, chiefly about the role of the Palestinian Authority in Gaza. But at the end of the day, if fundamental issues of authority and legitimacy are not resolved, such an arrangement would quickly run into disagreements and conflicts both internally and externally. Anyone who wishes to see successful international involvement in securing a long-lasting calm in Gaza should expect more.

The post The U.S. Draft Security Council Resolution on Gaza: Initial Concerns appeared first on Just Security.

The direct impetus for the UN General Assembly’s request for this Opinion was the enactment of two Israeli laws last year, aiming to cease United Nations Relief and Works Agency for Palestine Refugees (UNRWA)) operations both in “the sovereign territory of Israel” (which, in Israel’s view, includes East Jerusalem), and in the OPT. The latter was effected by Israel’s cancellation of the 1967 “exchange of letters” between Israel and UNRWA (which regulated its continued operations in the OPT post-1967), and by prohibiting all Israeli agencies (including the military authorities in the OPT) from interacting with UNRWA (for the text of the laws, see paras 63-65 of the Opinion; for the exchange of letters, see para 50). In accordance with these laws, UNRWA was compelled to evacuate its East Jerusalem compound; its international staff lost their status and were expelled; and UNRWA has been prohibited from bringing aid into Gaza since the crossings are controlled by Israel. It should be noted that in practice, however, UNRWA continues to operate widely both in Gaza and the West Bank on the basis of its local staff, although its operations are severely impeded. This demonstrates the illogical nature of Israel’s move, since it both “bans” UNRWA while continuing to rely on it. As we shall see, this point proved crucial in the Opinion.

Nonetheless, Israel justified the laws on the basis of its allegations that UNRWA staff were involved in Hamas’s October 7 brutal attacks; that hundreds of its staff are in fact members of terrorist organizations; and by its repeated claims that armed groups are operating in its compounds. A UN investigation found that nine UNRWA employees might have been involved in the October 7 attacks. UNRWA, for its part, denied the allegation that hundreds of its employees are involved in terrorism, stated that it has indeed condemned instances where it was aware that its premises were used by armed groups, and that in general, none of the allegations support a blanket description of the “institution as a whole” – which employs 30,000 people – as infiltrated by Hamas. Critics of Israel claimed that the real motivation behind Israel’s move was its hostility towards the mere recognition of Palestinian refugees and their rights. Others were concerned with the effects of the restrictions against UNRWA on the humanitarian situation on the ground, given its central role in providing services and aid to Palestinians.  

The Request for an Advisory Opinion

Against this background, the General Assembly requested the Court to provide an Opinion on 

“the obligations of Israel, as an occupying Power and as a member of the United Nations, in relation to the presence and activities of the United Nations, including its agencies and bodies, other international organizations and third States, in and in relation to the Occupied Palestinian Territory, including to ensure and facilitate the unhindered provision of urgently needed supplies essential to the survival of the Palestinian civilian population.”

Three things should be pointed out about this question from the outset: first, unlike the Legality Opinion, the ICJ was not requested here to determine directly whether Israel violated its obligations. Second, the question concerns obligations towards the UN and other third parties in occupied territories, not in a state’s sovereign territory. Third, the request focused on Israel’s obligations both as an occupying power – meaning, on the basis of the laws applying in occupation – and as a UN member state per se. This opened the door to important and interesting discussions on the obligations of states to cooperate with the UN more generally. 

The Opinion itself includes determinations on many legal questions, including issues such as international human rights law; obligations under international humanitarian law towards detainees; self-determination; the responsibility of the UN regarding the question of Palestine; and immunities of the United Nations. Sometimes, owing to the formulation of the General Assembly’s question, these determinations are rather general and restate well-established obligations. Moreover, some determinations are relevant to the specific context and history of Israel-Palestine, while others have more general application. 

In this piece, I will focus on two key aspects that are both central to the issue and received detailed treatment in the Opinion: the occupying power’s obligations to provide essential needs, and how these interact with the activities of international organizations; and the general duty of states to cooperate with the UN. The latter question spawned a debate between the judges in their individual declarations, which gives rise to much broader theoretical and jurisprudential questions on the role and nature of the UN. I will not address the question of immunities here. Because of its rather technical nature, it should be addressed in a separate and detailed piece.  

Indeed, the Opinion displays consensus on most issues. The sole operative dissenting opinion, on some points, is by Vice-President Sebutinde – an opinion that requires a separate analysis. I would also like to call attention to Judge Cleveland’s important declaration which includes significant points concerning the duties of non-state actors such as Hamas in relation to the issues in question, while emphasizing the non-reciprocal nature of these obligations.    

The Status of Gaza

The scope of a state’s duties concerning humanitarian aid in armed conflict depends on whether a territory is occupied or not. In hostilities absent an occupation, belligerents are only required to allow and facilitate aid, subject to their right to prescribe technical arrangements (see the new ICRC commentary here). However, once a territory is under the effective control of the adverse party, the law of occupation kicks in, and “positive” duties to provide aid apply (see here). More generally, the occupant must ensure public order and security in the occupied territory. The key question that the Court had to grapple with, in this context, was how these duties interact with the activities of third parties in the territory, including the UN, other international organizations, and states.

First, the Court had to determine the status of the relevant territories. Regarding the West Bank and East Jerusalem, there is a longstanding international consensus on their status as occupied territory – a status which the Court had already validated in two previous Advisory Opinions – and which it only had to briefly repeat in the current Opinion (para 83). Regarding Gaza, the situation became more complicated after Israel’s “disengagement” in 2005. In the Legality Opinion, the Court briefly held that “Israel’s withdrawal from the Gaza Strip has not entirely released it of its obligations under the law of occupation” and these “remained commensurate with the degree of its effective control over the Gaza Strip (Legality, para 94);” and moreover, that this is “even more so since 7 October 2023” (Legality, para 93). 

In the new Opinion, the Court holds that in the months since the Legality Opinion, and owing to its military presence on the ground and other actions, “Israel’s effective control over the Gaza Strip has increased significantly,” and that accordingly “Israel’s obligations under the law of occupation have also increased significantly, commensurate with the increase in its effective control over the territory.”(Para 86)

This is yet another manifestation of the “functional approach” to occupation (espoused also by the ICRC), which views occupation not as a binary set of obligations but as a sliding scale of obligations, the existence and scope of which are derived from the belligerent’s actual control over governmental functions (for the definitive theoretical treatment, see Aeyal Gross here). 

This determination prompted a partial dissent from judge Gómez Robledo, who opined that the Court should have flat out ruled that Gaza “is now under full-scale occupation” (para 3). Considering the scope of Israel’s ground presence in Gaza at the time, this dissent is understandable. It was also my own opinion (along with several colleagues) that at least in July 2025 “Israel is considered an occupying power in all or nearly all of Gaza.” 

Nonetheless, the functional approach has its own non-escalatory merits, particularly considering the current fluctuating situation on the ground. For instance, if we take seriously the all-or-nothing approach to occupation, we might argue that Israel, as the occupant, now has to re-enter parts of Gaza to prevent retribution by Hamas against Palestinian citizens, notwithstanding the ceasefire in effect. Indeed, like all of the laws of war, the law of occupation has a facilitative aspect which can be used to legitimate force that we should not lose sight of.

Be that as it may, since Israel undoubtedly controls the flow of humanitarian aid into Gaza, whether one adopts the functional or binary approach to occupation is less consequential here. 

Humanitarian Obligations under Occupation, Third Parties and UNRWA

Having reiterated that the West Bank and Gaza (functionally) are occupied, the Court moved to analyze the specific provisions of international humanitarian law (IHL) regarding humanitarian access in occupied territories, as they relate to activities by third parties. Here, the Court’s reasoning provides much welcome clarity on a complex set of norms. 

The Court constructed these obligations in the following way: Articles 55 and 56 of the Fourth Geneva Convention (GCIV) impose positive obligations on occupying powers to ensure that the population is supplied with essential needs. In cases where, for whatever reason, the population is “inadequately supplied,” additional obligations – namely those included in Article 59 – come into play (para 92). Article 59 holds that in such cases, the occupying power must agree, in addition to its positive obligations to ensure the needs itself, to “relief schemes” and facilitate them. These may be undertaken either by states or impartial humanitarian organizations. 

As the Court ruled, when the population is inadequately supplied, the obligation to allow relief schemes is “unconditional,” and it triggers direct obligations between the occupying power and third states and international organizations that seek to provide aid. However, this obligation applies only if these actors are impartial (paras 94-95). Importantly, although Article 59 does not mention this explicitly, the Court held that owing to its control over the territory, the occupant has a right to inspect aid and be satisfied that it will indeed be delivered to the population (para 97). This makes sense, since the occupant is generally entitled to take security measures in the territory. Moreover, since a belligerent is entitled to prescribe technical arrangements regarding aid to non-occupied territory, it would have been strange if it were not permitted to do so in territory under its de facto control. 

In this context, the Court makes a crucial determination that might be overlooked. Throughout the Gaza conflict, Israel has claimed that it is permitting a significant amount of aid into Gaza, but it does not reach the population since the UN fails to collect it from the Gazan side of the border. Whatever the factual merits of these claims, the Court clarified that the duty to provide aid does not end simply when it crosses the border, and that in cases of occupation, 

“an occupying Power must do more than simply allow the passage of essential items into the occupied territory. It must also use all means at its disposal so that these items are distributed in a regular, fair and non-discriminatory manner, including by facilitating access to them” (para 101). 

Having determined that, the Court turned to analyze the application of Article 59 in the case at hand. In Gaza, it relied heavily on international reports such as by the World Food Programme, Integrated Food Security Phase Classification (IPC), World Health Organization and the UN’s Office for the Coordination of Humanitarian Affairs (OCHA), and noted Israel’s complete block of aid from March to May 2025, as well as the inadequate operations of the Gaza Humanitarian Foundation, to conclude that the population in Gaza has indeed been inadequately supplied (paras 102-109) (the Court does not elaborate on the question of the prohibition on starvation, beyond recalling it briefly. See paras. 143-145). 

As a side note, I was a bit surprised by the centrality of the “inadequately supplied” standard in the Court’s analysis. This is both because too much emphasis on this test facilitates abuse by occupying states (and belligerents in general – since similar language is found also concerning non-occupied territories, see Art. 70(1) of Additional Protocol I), as these might exploit the indeterminacy of the standard; and, more fundamentally, the standard is problematic because in most cases a belligerent would object to third party aid precisely because it wants to cause scarcity. 

Nonetheless, as the Court found that the people of Gaza are inadequately supplied, and Israel thus must agree to relief schemes by third parties, the question turned to UNRWA. Here, Israel claimed that it has no obligations to work with UNRWA since it is not “impartial,” as Article 59 requires (para 111). 

While “impartiality” is usually understood as non-discrimination in the distribution of aid, the Court, rightfully in my view, read into the concept of impartiality also the requirement of “neutrality,” meaning, that the organization is not “taking sides” in the conflict (para 113-116). Here, the Court looked at Israel’s allegations against UNRWA, and reached the conclusion that these cannot establish UNRWA’s lack of neutrality “as an organization.” Simply put, the Court’s view was that in quantitative terms, there are no findings that can implicate an entire organization of 30,000 employees (para 118). 

In this context, Israel also argued that even if Article 59’s requirement to permit “relief schemes” applies, it has no obligation to cooperate with a specific organization such as UNRWA. The Court agreed that in general an occupying power is free to choose the organization it works with (paras 119-120) (a finding that is in tension, in my view, with its later findings regarding the duty to cooperate with the UN, and leaves many open questions concerning the treatment of third states that seek to offer aid). However, it held that this “discretion” must ultimately be assessed in light of the occupant’s obligation to ensure the welfare of the population. In the specific context of Gaza, the Court noted the widescale and crucial humanitarian operations by UNRWA, and coupled with the fact that Israel has not moved to replace it with any credible mechanism, led to the conclusion that Israel cannot ban UNRWA from Gaza without violating its duties as an occupant (120-124). The Court also extended this reasoning, without much elaboration, to other international organizations and third states (paras 125-127). 

In my view, the Court could have reached a similar conclusion through the general rules of the law of occupation, in particular the duty to maintain public order (Article 43 Hague Convention). Arguably, the decision to abruptly ban an agency so fundamental to the welfare of the local population simply does not fit with the occupant’s duty to maintain public life.

Concerning the West Bank, the Court added an additional important clarification. In the West Bank, since there was no claim that the population is “inadequately supplied” in the acute sense of Article 59, it could be argued – as per the Court’s own understanding of Article 59 – that Israel is under no obligations to allow third parties to provide aid there. The Court, however, rejected this possibility, based on the specific and longstanding practice of the Israeli occupation. As it noted, in the OPT, Israel “left the responsibility” to provide the needs enumerated in Articles 55-56 of GCIV “to the United Nations acting through UNRWA, as well as other international organizations and third States.” Since it chose to do so rather than to provide these services itself, it cannot now restrict their activities (para. 132). 

In other words, Israel can’t have it both ways: it cannot delegate its positive responsibilities to international bodies, while at the same time arguing for an absolute power to restrict them. The Court’s key finding here is that since the reliance on international bodies has been “central” to Israel’s performance of its obligations, it is obligated either to “facilitate those operations or to otherwise ensure that these obligations are fully met” (para 133). Since Israel has no credible plans to take over UNRWA’s operations, and considering the extent of the operations of UNRWA and other international bodies on the ground, their activities cannot be banned or impeded.

Again, this conclusion can be reached also by applying the general obligations of occupying powers (as per Article 43, Hague Convention), and in fact reflects a broader, “public law” way of thinking, stressing the actual reliance of the local population on the services of international bodies in determining the scope of the legal obligation.

Crucially, the analysis above is strictly concerned with the law of occupation, before the Court addressed the specific duties of Israel towards the UN as a member state. As we shall see, in the view of the Court, these duties further restrict its discretion in terms of external aid. However, as opposed to the Court’s clear analysis of the former, its treatment of the duty to cooperate leaves much space for speculation. 

The Duty to Cooperate with the UN

The Court analyzed Israel’s duty to cooperate with the UN in light of specific aspects of the Israeli-Palestinian conflict. It noted the special responsibility of the UN towards the question of Palestine, inter alia through the operation of UNRWA; as well as the catastrophic war in Gaza which also affected UNRWA’s premises and personnel, killing hundreds of its employees and people sheltering in its facilities (para. 166-69). Nonetheless, the question of the scope of States’ obligations to cooperate with the UN is much wider. In a sense, it goes to the root of fundamental questions on the nature of the UN, and whether it is a quasi-constitutional body representing the international community as whole, or, rather, an international organization strictly empowered by States to perform particular roles. 

In this context, Article 2(5) of the UN Charter establishes the duty to cooperate with the UN, by providing that in pursuit of the UN’s purposes, “All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter.” In situations of occupation, for instance, one could argue that the duty to cooperate with the UN delimits the occupant’s discretion while fulfilling its obligations under the law of the occupation, such as in Article 59 of GCIV. This would limit, for instance, the ability of the occupant to refuse to allow UN bodies to participate in aid operations. 

The question, of course, is the scope of this duty to cooperate. Does it arise only when the organization seeks to fulfill a legally binding UN decision (such as a Security Council resolution)? Does it apply only in conjunction with other pre-existing binding rules, such as the rules of IHL? Or rather, is it an all-encompassing duty to assist the UN?

The Court left this question a bit muddled, owing perhaps to the disagreements revealed in some of the judges’ individual declarations. As it held, the duty to cooperate “must be read together with the provisions of the Charter relating to the powers of various organs of the United Nations” (para 172), a formulation that can be understood in numerous ways. 

The specific application of the duty to the Israeli-Palestinian context was similarly vague in its reasoning. The Court emphasized that since Israel is not sovereign in the OPT, it cannot invoke any sovereign prerogative not to cooperate with the UN in these territories (paras. 176, 184). While this is hardly objectionable, it is still a far cry from a positive theory on the scope of such cooperation. Ultimately, the Court held that since UNRWA has been entrusted by the General Assembly to provide relief to Palestinians, and considering its crucial role on the ground, Israel cannot decide unilaterally to withhold its cooperation with the UN. On this basis, it held that Israel must, under Article 2(5), cooperate with the UN and not obstruct its activities (paras 177-79). So, it seems that in the view of the Court, the fact Israel is not sovereign in the territories, coupled with the special legal and factual context of UNRWA’s operations, results in an obligation to cooperate with it. 

The individual declarations and opinions by the judges highlighted the scope of disagreement within the Court on this issue. Judge Gómez Robledo, in a partially dissenting opinion, criticized the Court for adopting a “timid and excessively formalist” approach, by not explicitly specifying that the obligation to cooperate entails an obligation (in certain circumstances) “to lend assistance to the General Assembly in any action undertaken by it” (para 7). He further asserted that the Court actually limited the duty to cooperate to apply “only within the narrow framework of strictly binding obligations imposed by certain bodies, first and foremost the Security Council” (para. 8). While I’m doubtful about this reading of the Court’s opinion (this reasoning is more explicitly found in Sebutinde’s dissent, para. 91), it is true that the Court stopped much short of what Gómez Robledo suggested: to recognize that the General Assembly “embodies the will of the international community as a whole” and that the United Nations “synthesizes the civitas maxima ideal, the ultimate source of international law” (para. 8). 

Of course, some would immediately object that this in effect confers binding power to the General Assembly. Judges Abraham and Cleveland, for their part, also lamented the lack of clarity in the Court’s reasoning on the duty to cooperate (para. 11). However, they advanced a much narrower view of the duty, warning that a broad view would “bestow on the Article [article 2(5)] an extraordinary power to transform non-binding ‘actions’ of United Nations organs into legally binding ones” (para 6). They thus held that the duty “necessarily operates in conjunction with the legal obligations that a Member State has undertaken.” These can emanate from UN Security Council obligations, and also from other sources such as rules of IHL, IHRL, and other applicable law(paras. 5, 11). Abraham and Cleveland, however, do not specify the technique through which these “external” obligations are transformed into duties to cooperate under Article 2(5). To be clear: there are ways to make such an argument, but the judges do not address it here. 

Judges Charlesworth and Xue take an intermediate path. Judge Charlesworth decries the Court’s “cryptic” reasoning on the duty (Art. 3), and reads certain passages of the Court’s seminal Reparation for Injuries Suffered in the Service of the United Nations case as imposing a duty to cooperate that potentially goes “beyond the four corners of the Charter” and the confines of binding Security Council resolutions (para 5). However, Judge Charlesworth stresses that General Assembly Resolutions cannot be made binding through this interpretation; in her view, the obligation under Article 2(5) is simply one of open-ended “good faith cooperation” with the activities of the UN (para 6). Judge Xue, in an impressive purposive and historical analysis of Article 2(5), similarly understands it as a “general obligation” to give assistance to the UN, even absent binding decisions or pre-existing external legal obligations (paras. 4- 24). 

There is much space for discussion here. To me, the duty to cooperate can be conceptualized as an obligation not to arbitrarily refuse to assist the UN in its activities under the Charter, in areas which are not under a State’s sovereign prerogative. But one can think of many other formulations close to that effect.  

In sum, the Advisory Opinion provides much clarity on some aspects, chiefly relating to humanitarian obligations under the law of occupation, while maintaining ambiguity on others, such as the scope of the duty to cooperate with the UN. One thing is for certain: the Opinion will surely fuel debates for years to come. 

The post The ICJ’s Advisory Opinion on Israel’s Obligations Towards UNRWA and Other International Organizations in the Occupied Territories: Key Issues appeared first on Just Security.