On October 7, 2023, militant members of Hamas and Islamic Jihad attacked military bases and towns in southern Israel from Gaza, during which approximately 1,200 people—at least 845 of whom were civilians—were killed and over 5,000 injured. The militants also took hostage some 240 Israelis and nationals of other countries.
Israel immediately launched a massive attack on Gaza, a small strip of land of 140 square miles that is home to 2.3 million people, the vast majority refugees and their descendants from Israel’s expulsions following the 1948 conflict. Israel began its occupation of Gaza in 1967, has maintained an almost complete blockade of Gaza since 2007, and remains an occupying power as defined by international law.
From the time Israel’s bombardment began to January 18, 2024, the UN Office for the Coordination of Humanitarian Affairs reported at least 24,620 Gazans killed and 61,830 Palestinians injured in Gaza. Some 70 percent of the fatalities have been women and children, according to Gaza’s Ministry of Health; the World Health Organization reported that, on average, 160 Gazan children were killed every day for the first month of the conflict. Also as of 18 January, 1.7 million Gazans (85%) are estimated as internally displaced. The UN estimates that over 500,000 people will have no home to return to after the conflict. Gaza remains under full Israeli siege, including electricity blackouts and a blockade of fuel, food, water, and medical necessities. 2.2 million people are at imminent risk of famine.
What the UN secretary-general has called “a crisis of humanity” is also a legal crisis. The current war and its history reflect a failure of the UN system to prevent and punish war crimes, crimes against humanity, and genocide. However, the responsibility for preventing the gravest of crimes falls not only on the UN but the entire international community, from individual states to civil society—and it is the latter that must prosecute and punish such crimes when the UN fails to do so.
Robust rules of warfare, weak enforcement mechanisms
The Geneva Conventions of 1949 on international humanitarian law—the universal rules on warfare—prohibit punitive sieges and collective punishment, hostage-taking, torture, cruel and inhuman treatment, targeting civilians and civilian infrastructure, and the forcible displacement of civilian populations. They require all parties to ensure that civilians have food, water, and essentials to survive during a conflict and guarantee that they can safely leave conflict areas and return home. Violations of these prohibitions and obligations are war crimes and can also be crimes against humanity or genocide, depending on their gravity and the perpetrators’ intent.
The rules do not distinguish between political categories of the various parties—humanitarian law does not label a particular group “terrorists” and another group “lawful combatants.” The same rules apply to all—a country’s armed forces or any non-state armed group, including Hamas or Islamic Jihad.
A core international humanitarian law principle is that all parties must distinguish at all times between combatants and civilians and refrain from causing disproportionate harm to the latter. Further, humanitarian law recognizes the right of occupied people to use armed resistance against their occupiers to achieve self-determination and sovereignty in their territory. But the same rules apply to those using armed force to resist occupation as to states’ armed forces. Thus, Hamas’s October 7 attacks on Israel, which caused far greater harm to civilians than to military and police forces and involved the taking of hostages, constitute war crimes just as they would if those crimes were caused by a state’s military forces.
A similar analysis applies to Israel’s current bombardment of Gaza and its attacks on healthcare facilities that have caused thousands of casualties, the targeting of UNRWA schools housing civilians, and the massive destruction of homes and housing units. All harms disproportionate to the military objective—killing a relatively small number of Hamas fighters—are war crimes.
The UN and international community appear powerless to limit the methods of warfare, implement a ceasefire, call up UN forces to protect civilians in Gaza, or ensure accountability. Moreover, the current conflict illustrates a structural failure of the UN: the imbalance of power between a small group of states and the majority of states and peoples in the world.
Structural failures of the UN system
The power imbalance in the UN has deadlocked the governing UN bodies: the 15-member Security Council (SC) and the 193-member General Assembly (GA). All member states of the UN have an equal vote in the GA. In contrast, the SC’s five permanent members have the power to veto any resolution, while the ten remaining members can vote but have no veto power. Therefore, a single UN member state can defeat the will of the vast majority of states.
The SC and GA have by now voted multiple times on resolutions calling for ceasefires in Gaza. On October 18, the US voted against 12 states to defeat the SC’s first resolution for a humanitarian pause. On October 27, 2023, 120 of the 193 member states in the GA voted in favor of a ceasefire. The UN secretary-general invoked the rarely-used Article 99 to call for a ceasefire at the SC, once again defeated by US veto. On December 12, the GA voted again, with 153 states in favor, 10 opposed, and 23 abstaining—the demand for a ceasefire representing the overwhelming majority of the world’s population. On December 22, the Security Council approved a resolution for more humanitarian aid to Gaza that fell short of a call for a ceasefire; the US abstained from voting in favor. Efforts to secure a ceasefire in the UN continue.
Because only the SC can authorize intervention to halt a conflict, a single member state can determine when the UN can halt war crimes, crimes against humanity, or genocide. However, the United States has used its veto over 30 times to protect Israel against past UN action seeking to halt its aggressions, including prior attacks on Gaza.
The same structural problem prevents the SC from referring a case to the International Criminal Court (ICC). Israel is not a party to the ICC, rendering it immune to prosecution absent SC referral or another state referring an Israeli national to the court for committing crimes in that state’s territory. In the past, the United States has protected Israel against ICC prosecutions, going so far as to issue sanctions against ICC staff for pending investigations into Israel’s settlements in the West Bank and attacks on Gaza.
Incomplete UN reform and individual state responsibility
UN member states have attempted to address these weaknesses through reforms, including the 2006 establishment of the Human Rights Council and the Universal Periodic Review, and the renewed UN-led commitment known as the responsibility to protect (R2P). Another reform, the 1950 “Uniting for peace” resolution, allowed the GA to call emergency special sessions for the ceasefire votes on October 27 and December 12. Unfortunately, this process grants the GA no power to implement its vote.
These partial reform efforts leave prevention and accountability for the gravest international crimes in the hands of other international mechanisms and civil society. One important mechanism is the 1948 Genocide Convention, which requires all states parties to prevent and punish genocidal acts. Genocidal acts are defined as killing, causing bodily or mental harm, and deliberately inflicting conditions intended to and causing the physical destruction of an entire or part of a group. Any state party to the Genocide Convention can bring a claim to the International Court of Justice (ICJ).
In the past, the ICJ has ruled that depriving a people of food, shelter, medical care, and other means of subsistence, systematically expelling them from their homes, and imposing sieges are genocidal acts. Prior to the October 2023 attack, Israel carried out ground, air, and sea attacks on Gaza in 2008, 2012, 2014, 2021, and 2022; its tight and continuous blockade of Gaza began in 2007. This longer-term targeting of the Gazan population—alongside ordering the evacuation of 1.1 million Gazan civilians, bombing those trying to flee, and depriving them of the means to survive—may also be evidence of genocide, according to the Convention’s definition of the crime. Statements of genocidal intent are important evidence, such as Israeli government statements that Palestinians are “human animals”; Israel will deprive Palestinians of all electricity and water, and cause “only [] destruction. You wanted hell; you will get hell.”
As this article goes to press, South Africa has submitted an application against Israel to the ICJ for genocide, requesting provisional measures, including that Israel “not engage in genocide.” The 84-page application exhaustively covers the evidence of genocidal acts and the plethora of statements indicating intent by Israeli principals, including those above. Thus far, more than 50 countries have supported the request for provisional measures, according to South Africa, along with the League of Arab States and the Organization of the Islamic Conference. Hearings were held for this request on January 11 and 12, 2024, at the Peace Palace in the Hague.
The Genocide Convention is ultimately the most relevant treaty for the current moment. If the UN is unable to end the cycle of violence, the international community of states and civil society must use all available tools at their disposal—and the South Africa case indicates that they are willing and prepared to do so.