Tag: OpinioJuris

Posted on

Is Genocide Happening in Gaza? by Melanie O’Brien

PLEASE TAKE ACTION RIGHT NOW AND SEND YOUR LETTER TO THE UN OFFICE OF THE SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE AND THE INTERNATIONAL CRIMINAL COURT PROSECUTOR.

Many people are asking the question, ‘is genocide happening in Gaza?’. The question was explored in the media in the early days after 7 October 2023 (see, e.g., here and here), but has gained traction in recent months, with global media doing extensive investigative pieces including interviews with multiple genocide scholars (including the author) (see, e.g., here, here, here, here, here, here, here, here and here). The term has been used by authors of posts on this blog (e.g. here, here and here), and other blogs (e.g. here, here and here). The term has also been applied by human rights organisations (see also here), including Israeli human rights organisations, and UN experts. The question merits a straightforward legal analysis, applying the law (the definition of genocide as found in the Genocide Convention and the International Criminal Court’s Rome Statute) to the facts.

Continue reading at https://opiniojuris.org/2025/08/04/is-genocide-happening-in-gaza/

Posted on

‘State of Exception’: Judicial Discretion and the Amicus Curiae Mechanism in the ICC’s Palestine Proceedings by Souheir Edelbi

PLEASE TAKE ACTION RIGHT NOW AND SEND YOUR LETTER TO THE UN OFFICE OF THE SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE AND THE INTERNATIONAL CRIMINAL COURT PROSECUTOR.


  1. Palestinian victims have faced double standards and unnecessary procedural hurdles at the ICC, leading to a ‘state of exception’ where standard legal procedures are either suspended or circumvented. Ardi Imseis has critically examined this phenomenon in relation to the Office of the Prosecutor (OTP), specifically Prosecutor Bensouda’s request on 22 January 2020 for a ruling on the Court’s territorial jurisdiction in Palestine. Despite her own finding that ‘the Court does indeed have the necessary jurisdiction in this situation’, Benouda sought Pre-Trial Chamber I’s (PTC I) ‘confirmation that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza’. In Prosecutor Bensouda’s view, it was necessary to put the investigation on ‘the soundest legal foundation’ – a standard that is not required by the Rome Statute. As Imseis argues, the Prosecutor’s request was unnecessary as she could have initiated the investigation without it, as was her obligation following Palestine’s referral on 22 May 2018. 
  3. This cautious approach, likely aimed at insulating the Court from accusations of political bias, has led the Court down a troubling path of exceptionalising Palestine in its practices…

    …“the Pre-Trial Chamber shall […] issue a warrant of arrest”. The use of the word “shall” indicates that the Pre-Trial Chamber is under an obligation to issue a warrant of arrest, provided that the prerequisites listed in article 58(1) of the Statute are met.

Continue reading at https://opiniojuris.org/2024/09/02/state-of-exception-judicial-discretion-and-the-amicus-curiae-mechanism-in-the-iccs-palestine-proceedings/

Posted on

The Extermination of Hamas as Establishing Genocidal Intent by Maryam Jamshidi

PLEASE TAKE ACTION RIGHT NOW AND SEND YOUR LETTER TO THE UN OFFICE OF THE SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE AND THE INTERNATIONAL CRIMINAL COURT PROSECUTOR.

  1. Instead of undercutting South Africa’s genocide case, Israel’s desired elimination of Hamas provides more proof that its actions satisfy the Convention’s definition of genocide… While some have rightly argued that annihilating Hamas may be an impermissible defensive objective violating international law on the use of force, few have explored how targeting Hamas—both in terms of its civilian and military arms—may also help satisfy the Genocide Convention’s onerous intent requirement. This post begins by describing expert commentary on how the destruction of a group’s political and administrative leadership, as well as its military and law enforcement personnel, can help establish genocidal intent. It then turns to the case of Gaza, demonstrating how the targeting of Hamas’s political and administrative leaders, as well as its police force, can establish intent to physically eradicate the Palestinian people of Gaza, as such. This post ends by examining how Israel’s targeting of Hamas’s military arm provides additional evidence of genocidal intent. 

Continue reading at https://opiniojuris.org/2024/08/02/the-extermination-of-hamas-as-establishing-genocidal-intent/

Posted on

The “Capacity to Influence”, State Responsibility, and the Obligation to Prevent Genocide by Jinan Bastaki

PLEASE TAKE ACTION RIGHT NOW AND SEND YOUR LETTER TO THE UN OFFICE OF THE SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE AND THE INTERNATIONAL CRIMINAL COURT PROSECUTOR.

  • Perhaps the most clear example of failing to prevent is the provision of weapons (which, if states knew of the intent to commit genocide, and genocide is indeed found to have been committed, can make them complicit in its commission). Several European countries, including Belgium, Italy, and Spain suspended arms transfer to Israel, and a statement issued by UN experts warned that any transfer of weapons or ammunition to Israel that would be used in Gaza is likely to violate international humanitarian law. As a result of a petition by Dutch NGOs, the Court of Appeal in the Hague ordered the state to stop all export and transit of F-35 fighter jet parts to Israel. 

…The UN Relief and Works Agency (UNRWA) provides support for almost 2 million people in Gaza, and has by far the greatest capacity to aid and assist those in Gaza as well as access to different parts of the Strip. As a result of unsubstantiated allegations against it following the ICJ’s order, several major states decided to cut off funding. Within the context of famine setting in and the blocking of aid from entering Gaza and particularly in the north, the severing of UNRWA aid assists in inflicting severe bodily and mental harm (Genocide Convention, Article 1C) upon the population, as well as creating conditions of life calculated to bring about its physical destruction in whole or in part (Article 1C). 

…The non-exhaustive categories cited in the Bosnia v Serbia case were “political, military and financial links,” as well as “links of any kind.” The Court specifically noted that the strength of these links gave Serbia influence unlike any other state party to the Genocide Convention (para. 434) and it encompassed “all those with whom the Respondent maintained close links and on which it could exert a certain influence,” (para. 435). The responsibility of the authorities was to make “the best efforts within their power to try and prevent the tragic events then taking shape,” (para. 438). As stated previously, states are to contribute to restraining in any degree.

Does this encompass significant trade between countries? One country cutting economic ties may or may not help to prevent genocide, but as the Court pointed out, the duty is to act, and “the combined efforts of several States, each complying with its obligation to prevent” (para. 430) may avert the commission of genocide. As an example, the Japanese company Itochu severed its relationship with Elbit systems, the Israeli defense contractor. The agreement between them was not for the transfer of weapons or the provision of Japanese technology for the Israeli military, but rather to procure material for the Japanese military. Still, as a result of the ICJ’s provisional measures order on the 26th of January and “that the Japanese government supports the role of the Court,” Itochu Aviation decided to suspend cooperation. This is significant as, while Itochu is a general trading company, the partnership with Elbit was based on a request from Japan’s defense ministry. 

… An argument can be made for the fact that several countries, each putting major economic and diplomatic pressure, by cutting off or suspending trade deals, cooperation, and the like, can have a combined effect of, at the very least, restraining Israel.

Continue reading at https://opiniojuris.org/2024/03/30/the-capacity-to-influence-state-responsibility-and-the-obligation-to-prevent-genocide/

Posted on

At World’s End: Palestine, the ICJ, and a New Dawn in International Law by Mohsen al Attar

PLEASE TAKE ACTION RIGHT NOW AND SEND YOUR LETTER TO THE UN OFFICE OF THE SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE AND THE INTERNATIONAL CRIMINAL COURT PROSECUTOR.


  1. What can I do? Many of us have repeatedly asked this question in the past months. We predicted the revolution would not be televised; we did not anticipate the genocide would.

  2. Scholars of anti-colonialism were well versed in Europe’s history of horrors. We knew of the German annihilation of the Herero and the Nama; we wrote about the Indigenous peoples the French filled with gunpowder and blew up and of the ones the British tossed into the ocean—while alive—to lighten the cargo (and thereafter submitted an insurance claim for the loss of ‘chattel’). We taught the Nuremberg trials as an example of international law’s selective accountability, activated when Europeans brutalised other Europeans. We even watched videos of Israeli soldiers boasting of raping children during the Nakba, the pride and glee still palpable decades later.

  3. Yet, despite our knowledge of history, we were ill-prepared for the reality of rows of lifeless infants, smashed like porcelain dolls. We could not fathom hundreds of children undergoing amputations without anaesthesia—I still can’t knowing I would succumb to the pain or be psychologically mutilated going forward. Most of all, we could only gawk as Biden and Trudeau, Sunak and Macron, Borrell and van der Leyen, and the near totality of the Euroamerican journalistic class marshalled pretences to excuse the barbarism ‘the most moral army in the world’® was committing with their help. Their statements echoed grimly with the rationalisations uttered by their ancestors, verifying that today’s politicos are much like yesterday’s, regretting nothing about the racialised violence they visit upon others.

Continue reading at https://opiniojuris.org/2024/01/09/at-worlds-end-palestine-the-icj-and-a-new-dawn-in-international-law/

Posted on

The ICC Prosecutor’s Double Standards in the Time of an Unfolding Genocide by Triestino Mariniello

PLEASE TAKE ACTION RIGHT NOW AND SEND YOUR LETTER TO THE UN OFFICE OF THE SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE AND THE INTERNATIONAL CRIMINAL COURT PROSECUTOR.

  • Favouring the ICC’s ‘cordial relationship’ with the United States over the fulfilment of its mandate would further tarnish the Court’s image as an independent and impartial institution. Yielding to pressure from powerful states would result in further legitimacy costs for an institution that, so far, has failed to hold anyone to account in some of the most widely-documented situations of alleged international crimes, such as Iraq, Afghanistan, and Palestine. Carrying on with such double standards when faced with an unfolding genocide would mean failing the final test bench for the credibility of the Court. It would confirm the reasons underpinning the growing disillusionment in international criminal justice project in the Global South. The increasing calls for the establishment of an hoc tribunal in Gaza, including by UN senior officials, prove that the ICC’s failure to hold to account those responsible for the most serious crimes in the Palestine situation would constitute a serious challenge to the existence of the entire international justice system set up under the Rome Statute. 

Continue reading at https://opiniojuris.org/2024/01/03/the-icc-prosecutors-double-standards-in-the-time-of-an-unfolding-genocide/

Posted on

We are Witnessing a Genocide Unfolding in Gaza: To Stop it, the ICC Prosecutor Must Apply the Law Without Fear or Favour by Shawan Jabarin and Ahmed Abofoul

PLEASE TAKE ACTION RIGHT NOW AND SEND YOUR LETTER TO THE UN OFFICE OF THE SPECIAL ADVISER ON THE PREVENTION OF GENOCIDE AND THE INTERNATIONAL CRIMINAL COURT PROSECUTOR.

Last year, around 200 Palestinian, regional and international civil society and human rights organizations sent a letter to Prosecutor Khan urging him, to expedite his investigation and start issuing arrest warrants, and to deter crimes in Palestine. The letter highlighted the numerous important missed opportunities for issuing preventive statements in the year before. It also showed that previous preventive statements by former Prosecutors have proven to provide sufficient deterrence in Palestine. Unfortunately, the ICC Prosecutor did not heed the calls of these organisations, the perpetuation of international crimes against Palestinians continued and impunity has been prevailing leading to the current situation where we have a genocide unfolding before our eyes in the Gaza Strip. It remains a mystery why the Prosecutor refused to issue any statements before the 7th of October. Notably, regarding Ukraine, the Prosecutor issued three statements in the first week alone.

Continue reading at https://opiniojuris.org/2023/11/24/we-are-witnessing-a-genocide-unfolding-in-gaza-to-stop-it-the-icc-prosecutor-must-apply-the-law-without-fear-or-favour/