Krassimir Kanev: Two international procedures are related to the application of international humanitarian law to the conflict in Gaza 

The founder of the Bulgarian Helsinki Committee takes on the international law dimension of the situation in the Gaza Strip

This speech was delivered at a conference about the humanitarian catastrophe in the Gaza Strip, which took place at the University of Sofia on 6 June 2024.

We currently have two international procedures related to the application of international humanitarian law to the conflict in Gaza. One is before the International Criminal Court (ICC), and the other is before the UN International Court of Justice, or ‘World Court’. One court is a criminal court – there is a prosecutor, there are defenders, there will eventually be defendants and convicts serving sentences. In proceedings before the UN International Court of Justice, only states can be parties. There is a procedure initiated by South Africa against Israel under the Convention on the Prevention and Punishment of the Crime of Genocide. Why under the Genocide Convention? Because that convention allows in Article 9 for disputes relating to its application or implementation to be heard by this court. This is not the case with the other UN conventions.

I would now like to focus on the accusations of the prosecution of the International Criminal Court on Gaza. There are two sets of charges. One is against the Hamas leadership – against Yahya Sinuar, Mohammed Deif and Ismail Haniyeh. The other is against the Prime Minister of Israel and the Minister of Defence. They are on two types of crimes provided for in the Statute of the International Criminal Court. Broadly speaking, the ICC tries four crimes – genocide, crimes against humanity, war crimes and, more recently, the crime of aggression. But this last is a marginal area of ICC activity.

So far, the ICC has developed a practice on three crimes – genocide, crimes against humanity and war crimes. There are no genocide charges in this case, but there are charges against both the Hamas leadership and that of Israel, for crimes against humanity and war crimes.

What is the difference between one and the other? Crimes against humanity can be committed in any situation, both when there is armed conflict and when there is no armed conflict. The ‘revival process’ was a typical crime against humanity – persecution, as we can define it under Article 7 of the ICC Statute. War crimes can only be committed in a situation of armed conflict. It can be inter-State and intra-State, i.e. of a non-international nature. And when we have an armed conflict it is difficult to distinguish between what is a crime against humanity and what is a war crime. Roughly speaking, in a crime against humanity we have an attack against a civilian population – it can be an armed attack, but it can also be another, unarmed attack, such as creating a situation where these people starve to death. And that’s one of the criminal charges – that the Israeli authorities have created a situation where there are many deaths caused by starvation. This is a serious charge under both Article 7 (crimes against humanity) and Article 8 (war crime). This situation, causing death by creating conditions for starvation, is also linked to the case before the UN International Court of Justice under the Genocide Convention. Imposing conditions under which some people may starve to death when those people are defined as an ethnic or religious group may constitute genocide.

Whether these criminal charges go to trial or not, they are serious crimes in any case. There is a widespread understanding that genocide is the most serious of all crimes. It is very serious indeed – it means exterminating people because of their ethnicity or religion in one way or another, perhaps by starvation, perhaps by direct physical extermination. But if you look at the provisions of the Convention against Genocide, you will see that there are also relatively more trivial acts, such as incitement to genocide. It is serious, of course, but not quite as serious as killing civilians when you are committing crimes against humanity or war crimes. 

So these criminal charges, even though they do not contain a charge of genocide, are serious enough, both with respect to the leaders of Hamas and with respect to the Prime Minister of Israel and the Minister of War. With regard to the Hamas leaders, these are crimes involving the murder of civilians, hostage-taking (a typical war crime), rape in the context of both crimes against humanity and war crimes, torture and other inhuman and degrading treatment. And with regard to Benjamin Netanyahu and Yoav Galant, the charges are intentional starvation of a civilian population, intentional infliction of great suffering and serious bodily and mental harm, intentional homicide, attacking civilian objects, intentional targeting of a civilian population and several other similar acts which are serious enough and which have caused a huge number of casualties. They also have the potential to cause more casualties, especially if this situation of starvation continues. 

And now a few words on the other procedure, before the UN International Court of Justice. As I have already said, it is not a criminal procedure; it is a procedure for monitoring compliance with the Convention on the Prevention and Punishment of the Crime of Genocide. It does not necessarily involve a finding that genocide has been committed. The Convention against Genocide contains a number of other provisions that are related to this crime, such as incitement to genocide. That is to say, there may be no genocide, but if there is incitement, that is also a violation of the Convention. The International Court of Justice in The Hague monitors whether or not the provisions of the Convention are generally violated. And, if you recall, when the provisional measures were granted by this court, the facts that were cited related mainly to incitement to genocide – statements by senior Israeli politicians inciting genocide. What we can expect from the UN Court in The Hague in the proceedings that have been initiated by South Africa is not necessarily a finding of genocide. Other violations of the Convention may be found, which are also very serious. 

Thank you for your attention!

Photo: Krassimir Kanev (source: YouTube)

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