Holding Hamas Accountable at the ICJ Through Palestine

Holding Hamas Accountable at the ICJ Through Palestine

Some Genocide Convention parties recognizing the State of Palestine could sue it at the ICJ for alleged genocide by Hamas on Oct. 7.

Originally published at Lawfare

July 10, 2024 9:33 am (EST)

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More than two months before South Africa brought its case at the International Court of Justice (ICJ) against Israel under the Convention on the Prevention and Punishment of the Crime of Genocide (1948) (Genocide Convention), observers decried a different alleged genocide—of Israelis on Oct. 7, 2023, resulting in the deaths of approximately 1,200 Israelis and foreigners and injuring an estimated 5,431 victims. On Oct. 16, 2023, a group of about 240 legal experts signed an open letter stating that “as these widespread, horrendous acts appear to have been carried out with an intent to destroy, in whole or in part a national group—Israelis—they most probably constitute an international crime of genocide.” (The letter now exceeds 300 signatories.) But those claims did not materialize as a lawsuit. Meanwhile, in the aftermath of the Oct. 7 attacks, Israel launched major military operations in Gaza. It is those operations that form the basis of South Africa’s claims against Israel at the ICJ.

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But what of the initial accusations against Hamas? Does Hamas essentially enjoy immunity as a political and military organization? Can its actions on Oct. 7 escape scrutiny before the ICJ even though its leaders are being investigated by the International Criminal Court?

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There actually is a way to reach the question of whether Hamas has committed genocide, which is to bring a case against the State of Palestine. Even if Hamas cannot be directly hauled into court, the State of Palestine—which, as I explain below, may be accountable for Hamas’s conduct—can be. Since 2014 it has been a state party to the Genocide Convention and thus accepted ICJ jurisdiction, recently confirming that acceptance directly in a filing with the ICJ. If such a case against the State of Palestine were submitted by another state party to the Genocide Convention, then the ICJ might find reason to join that case with the South Africa case.

Palestine Declaration Accepting the Competence of the ICJ 

There is a popular presumption that there is no way to procedurally challenge the State of Palestine at the ICJ regarding compliance with the Genocide Convention. However, Article IX of the Genocide Convention assigns disputes between states parties of the treaty to the ICJ for resolution. In the event there is a dispute between states parties regarding the interpretation, application, or fulfillment of the Genocide Convention, including any dispute “relating to the responsibility of a State for genocide or for any of the other acts listed in Article III” of the convention, that dispute should be lodged with the court and the State of Palestine agreed to that procedure when it acceded to the treaty. The “other acts” of genocide under the convention are conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.

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However, there is an important procedural point that has to be addressed. The State of Palestine is not party to the Statute of the ICJ because it remains a non-member observer state of the United Nations. If it were a member of the United Nations, then under Article 93(1) of the UN Charter, the State of Palestine would automatically be party to the Statute of the ICJ. (Article 35(2) of the Statute of the ICJ provides that “the Court shall be open to other states” under conditions that, “subject to the special provisions contained in treaties,” are “laid down by the Security Council[.]”) But the State of Palestine filed a declaration (Palestine declaration) with the Registry of the Court on May 31 accepting “with immediate effect the competence of the International Court of Justice for the settlement of all disputes that may arise or that have already arisen covered by Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide (1948), to which the State of Palestine acceded on 2 April 2014.” It added that “[i]n doing so, the State of Palestine declares that it accepts all the obligations of a Member of the United Nations under Article 94 of the United Nations.”

Article 41 of the ICJ Rules of Court requires that the declaration of a non-party state to the ICJ Statute must be “made in accordance with any resolution adopted by the Security Council” under Article 35(2) of the ICJ Statute. The Security Council approved conditions for non-member participation in the ICJ in Resolution 9 (1946), which stipulates that, in order to have access to the court, a state not party to the statute must previously have deposited in the Registry of the Court “a declaration by which it accepts the jurisdiction of the Court, in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute and Rules of the Court, and undertakes to comply in good faith with the decision or decisions of the Court and to accept all the obligations of a Member of the United Nations under Article 94 of the Charter[.]” Resolution 9 further states that such a declaration may be either particular (and relate to a particular dispute or disputes that have already arisen) or general (in respect of all disputes or of a particular class or classes of disputes that have already arisen or that may arise in the future).

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To date, the State of Palestine has deposited only two declarations with the Registry of the Court. The first declaration was deposited on July 4, 2018 in connection with the Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes (1961) to which the State of Palestine acceded on March 22, 2018. In that declaration, the State of Palestine accepted the ICJ as the forum for dispute settlement under the Optional Protocol.

Palestine’s May 2024 submission was the second such declaration. The court stated in a press release dated June 3 that the Palestine declaration was filed “in accordance with Security Council resolution 9 (1946) (adopted by virtue of the powers conferred upon the Council by Article 35, paragraph 2, of the Statute of the Court)[.]” By its terms, the declaration encompasses all disputes under the Genocide Convention, including the South Africa case (if the intervention request by the State of Palestine is approved) and any case that might be filed against the State of Palestine in connection with the Oct. 7 attacks.

This eases the way for any state party to the Genocide Convention to hold the State of Palestine responsible for violations of the treaty at the ICJ. It remains entirely possible on a substantive basis that a claim under the Genocide Convention against the State of Palestine could fail. First, the ICJ could find that the crime of genocide did not occur on Oct. 7. Second, the court could find that even if Hamas had committed genocide, the State of Palestine (particularly the Palestinian Authority) was powerless to do anything about it and thus did not violate its own obligations under the Convention to prevent or punish genocide. But even if the claims ultimately fail on the merits, the mere fact of facing such a case would require diplomats and officials of the State of Palestine to answer to the genocide charges, putting them under international pressure to condemn Hamas for its attacks in Israel on Oct. 7. They may also face demands that they clarify whether any component of the State of Palestine at least tried to prevent Hamas from committing genocide or to punish any Hamas perpetrators in the aftermath.

At present, the State of Palestine seeks to intervene in the South Africa case (see below) while not publicly condemning the acts of Hamas. The State of Palestine has escaped any responsibility under the Genocide Convention regarding what has occurred in Gaza under Hamas command and launched from the territory of Gaza. If that situation remains unanswered, there would result black holes in the Genocide Convention where terrorist, non-state, or de facto governing authorities and militant armed forces could commit genocide while relevant state party authorities eschew the responsibility to prevent or punish. 

Hamas and the State of Palestine

For those who have determined that there is a State of Palestine, and more than 140 nations have officially recognized it, there remains the strong probability that the ICJ would determine that the State of Palestine comprises the West Bank and Gaza. Israel, which does not recognize the State of Palestine, contests this characterization and regards the West Bank and Gaza as disputed territories. Israel continues to occupy the West Bank and in the view of many in the international community continued, even before Oct. 7, to exercise occupation powers over Gaza. However, it would be surprising to this observer if any nation that recognizes the State of Palestine, or the United Nations when describing the non-member observer State of Palestine, would explicitly confine the geographical reach of the State of Palestine only to the West Bank. Relevant U.N. General Assembly resolutions do not exclude Gaza from references to the State of Palestine. The ICC has not limited its investigatory work only to the West Bank and has focused on Gaza. The ICJ doubtless would have to confirm or otherwise clarify the geographical character of the State of Palestine if it were to accept a case against the State of Palestine. What happened in or was launched from Gaza, which the ICJ likely would confirm is a part of the State of Palestine, probably would be viewed as happening within the jurisdiction of a state party of the Genocide Convention. This understanding of the State of Palestine still could accept that Hamas is the longtime de facto governing authority and military presence in Gaza and acts separately from the Palestinian Authority, which exercises political governance in the West Bank albeit under the weight of Israeli occupation authority.

Does the fractured political reality of the West Bank and Gaza somehow nullify the application of the Genocide Convention to the State of Palestine? I would argue that the State of Palestine must still honor its obligations under the Genocide Convention, despite its chaotic and truncated governance before, on, and after Oct. 7, 2023. Even though Hamas is often described as a non-state actor and as a terrorist organization, and though the Palestinian Authority has no practical control over Hamas, the Genocide Convention contains no language immunizing a group like Hamas—deeply embedded in the territory, governance, and culture of a state party to the convention—from responsibility for genocide. Nor does this situation liberate a governing group like the Palestinian Authority from responsibility to uphold the convention with respect to the actions of all of the state party’s nationals, including those living in Gaza. Otherwise, the crime of genocide could be committed absent any accountability under the Genocide Convention so long as the perpetrator (including the individuals comprising it) is a non-state actor or a terrorist organization launching genocidal acts from the territory of that state party, particularly if the authorities who claim to represent the state party simply concede that they cannot control the perpetrator group. That reading of the Genocide Convention would give the Palestinian Authority carte blanche to comfortably acquiesce in the actions of Hamas and thus effectively insulate the State of Palestine from any responsibility under the Genocide Convention and eviscerate the value of its state party status. 

State Responsibility Principles

The International Law Commission’s Responsibility of States for Internationally Wrongful Acts (2001) (ARSIWA) offers no escape hatch for either Hamas as alleged perpetrator of genocide or the Palestinian Authority as a governing authority whose officials diplomatically represent the State of Palestine at the United Nations, with governments recognizing the State of Palestine, and in filings with the ICJ.

Article 9 of the ARSIWA states that “[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.” That would describe the actions of Hamas, for purposes of state responsibility, because the officials of the Palestinian Authority apparently were absent from the Hamas planning, preparation, and execution of the invasion of Israel on Oct. 7 and resulting atrocity crimes, including alleged genocidal acts. The circumstances for years prior to Oct. 7 certainly called for the Palestinian Authority at least to seek to exercise elements of authority with respect to Hamas and Gaza, particularly through negotiation, however futile, with Hamas leaders.

A claim against the State of Palestine could seek the ICJ’s determination that Hamas, acting from the territory of the State of Palestine and directing nationals of the State of Palestine, committed genocide on Oct. 7, and that whatever the reason for its incapacity or unwillingness to do so, the Palestinian Authority, representing the State of Palestine, failed to prevent or punish such genocidal acts. That could be a mitigating circumstance that would be factored into the judicial determination and any remedies, but it would not be a shield of immunity under the convention. 

One might question the legal validity of the Palestine declaration if Hamas was not part of the Palestinian Authority’s decision to file the declaration, but that argument would position Hamas irrefutably in the cross-hairs of the Genocide Convention as a purported de jure part of the government of the State of Palestine. The ICJ likely would not entertain the argument that it has to look behind the Palestine declaration as to the sufficiency of it, given that it was filed by the Ministry of Foreign Affairs and Expatriates of the State of Palestine.

If there were such an inquiry, then the issue would arise whether the Palestine declaration permits consideration of the State of Palestine request for intervention in the South Africa case.  If the ICJ invalidated the Palestine declaration because that document did not garner Hamas’s formal approval, then the ICJ would have to decline the State of Palestine’s request to intervene in the South Africa case. However improbable, were Hamas to have formally consented to the filing of the Palestine declaration (which covers any case under the Genocide Convention), then Hamas would have gone on record as essentially inviting states parties of the Genocide convention to file claims against the State of Palestine (and thus Hamas) at the ICJ. That is an unlikely scenario.

On the same day (May 31, 2024) that it filed the declaration recognizing the competence of the ICJ under the Genocide Convention, the State of Palestine filed an application for permission to intervene in the South Africa case. Palestine’s application presents a full-throated statement of support for the South Africa claim and requests to join the group of states parties to the Genocide Convention led by South Africa in pressing the full case against Israel, including enforcement of the provisional measures already ordered by the court and delivery of a final judgment on the merits of the South Africa claim. 

It would be cynical in the extreme for the State of Palestine to officially accept the jurisdiction of the ICJ for any dispute under the Genocide Convention; seek to join the South Africa case against Israel as a party before the Court and intervene to argue in favor of the South Africa claim; and yet deny (or be silent about) any responsibility for the October 7 attacks and, were a case filed against it, deny that there is any dispute with a claimant state party with respect to the October 7 attacks (when obviously there would be an active dispute).

In short, the State of Palestine would be seeking to intervene in the South Africa case with “unclean hands” if there were a claim filed against it under the Genocide Convention. Even if the State of Palestine application to intervene in the South Africa case were to be accepted by the court, the credibility of the State of Palestine as a champion of the Genocide Convention would be compromised in the wake of a case filed against it.

As it stands, the State of Palestine enjoys all the privileges and protections of being a state party to the Genocide Convention, including the right to request to intervene in the South Africa case. At the same time, the State of Palestine must shoulder the responsibilities of being a state party to the treaty.

A Potential Palestine Case

Any state party of the Genocide Convention could file a case against the State of Palestine before the ICJ under the erga omnes principle recently affirmed by the court in the South Africa case. The state party could request of the State of Palestine that it officially affirm that the Hamas attacks against Israel on Oct. 7 constituted acts of genocide (with required intent) and that the State of Palestine failed to prevent those acts and has further failed to punish Hamas and any other Palestinian perpetrators of such acts. The State of Palestine likely would reject the claims outright, and a dispute would ensue. After all, the State of Palestine has never publicly condemned the attacks by Hamas on Oct. 7 and neither has the UN General Assembly done so, though Secretary-General António Guterres and UN Security Council resolutions have.

Strengthened by the recent filing of the Palestine declaration, a nation that both recognizes the State of Palestine and is a state party to the Genocide Convention could file a case at the ICJ against the State of Palestine for genocidal acts against a protected group of people in Israel on Oct. 7. There are currently 33 nations that both recognize the State of Palestine and are party to the Genocide Convention and are neither Arab nor Islamic in character: Antigua and Barbuda, Armenia, Argentina, Bolivia, Brazil, Bulgaria, Chile, Colombia, Costa Rica, Cyprus, Czech Republic, Dominica, Dominican Republic, Ecuador, El Salvador, Georgia, Guatemala, Iceland, Ireland, Montenegro, Nepal, Norway, Paraguay, Peru, Philippines, Poland, Romania, Rwanda, Slovakia, Spain, Sweden, Ukraine, and Uruguay.

Which one or more of these nations that recognize the State of Palestine would have the political will to file a genocide case at the ICJ against the State of Palestine? Indeed, any one of these nations already could have expressed its support for the South Africa case, voiced empathy for the Palestinian population of Gaza and supported greater humanitarian access to Gaza, criticized Israel’s military campaign, and/or voted for membership of the State of Palestine in the United Nations, and still find clear cause to file a case against the State of Palestine. The claimant nation(s) also could request that the ICJ judges join the two cases.

If a state party of the Genocide Convention were to file a case against the State of Palestine, the court should consider joining that case with the South Africa case under Article 47 of the Rules of Court. The result would be a far more fulsome presentation of evidence before the judges of alleged acts of genocide and create a more realistic scenario for genocide analysis of the entire conflict than currently exists.

As it now stands, proverbial blinkers shield the judges in the South Africa case from the evidence that would explain how the Israel-Hamas war began (namely, that allegedly genocidal acts resulted in death and injury to a protected group in Israel) and would explain the aims of the enemy that Israel is fighting in Gaza, as demonstrated with the character of attacks on Oct. 7 and relevant rocket attacks, human shield tactics with hostages and the Palestinian population of Gaza, and Hamas incitement rhetoric. The German judge, Georg Nolte, for example, noted in his separate declaration to the order for provisional measures on Jan. 26, 2024, that the South Africa case is of limited character and “does not concern possible violations of the Genocide Convention by persons associated with Hamas.”

*** 

In this article, I have sought neither to examine nor argue the merits of the South Africa case or of a hypothetical case concerning the State of Palestine. I simply propose that at least one state party to the Genocide Convention that also recognizes the State of Palestine and believes that genocidal acts with requisite intent occurred on Oct. 7 step forward and act at the ICJ.

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