Israel-Palestine Conflict
Some of the litigation documented by this initiative seeks to address the continued flow of weapons to Israel, despite the significant humanitarian consequences of its military activities in Palestine, including their military operations in Gaza.
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Conflict Overview
2023 witnessed an acute escalation of violence in Israel and Palestine and, according to the International Court of Justice (ICJ), a plausible case of an ongoing genocide. The escalation comes in the context of the historical conditions of mass and structural violence in Israel and Palestine.
The current conflict can be traced back to the “Balfour Declaration” of 1917, which expressed support for “the establishment in Palestine of a national home for Jewish people”. The state of Israel was established in 1948, through the 1948 Arab-Israeli war, also known as the Nakba, or ‘Catastrophe’. In the 1967 war, Israel occupied East Jerusalem, the West Bank and Gaza.
The Palestinian Authority was established following the 1993 Oslo Accords to govern some parts of the West Bank and Gaza for a transitional period of five years, though due to the failure to establish a Palestinian state it remains in existence while these areas remain under occupation by Israel. Israel partly withdrew from Gaza in 2005, while retaining control over its borders, seashore, and airspace. In 2007, Hamas became the de facto governing authority in Gaza, after which Israel imposed an illegal siege and maritime blockade (which the ICRC declared was illegal as of at least 2010). Since 2005 Israel has remained the occupying power of the Gaza Strip, despite its claims otherwise.
Numerous reports by the UN have repeatedly condemned the systemic violations of international law and abuses of human rights perpetrated by Israel, and referenced extensive evidence of war crimes and crimes against humanity in repeated Gaza assaults since 2008. In a 2020 report to the Human Rights Council, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 described Israel’s actions in the occupied territories as entailing “collective punishment” and violations of “right to life, freedom of movement, health, adequate shelter, and adequate standard of living.” In September 2022, Israel’s occupation was deemed unlawful under international law by the UN Independent International Commission of Inquiry. This position was affirmed by the ICJ’s 2024 Advisory Opinion on the presence of Israel in occupied Palestine (for more on this see below).
On 7 October 2023, Hamas launched a surprise offensive in southern Israel. The offensive resulted in the killing of 1,139 people, with an estimated 240 civilians and soldiers taken hostage.
While international law recognises the right to armed resistance to occupation in the struggle for self-determination, such resistance is subject to the rules of international humanitarian and human rights law. Hamas’ actions, including the deliberate mass killing of civilians and hostage-taking, and its continued indiscriminate rocket attacks, are considered serious breaches of international humanitarian law, potentially amounting to war crimes.
In response, the following day, Israel launched a massive air and ground offensive, accompanied by an even tighter siege, depriving Palestinians in Gaza of food, water, medicine, fuel, and electricity, and resulting in repeated mass displacement of the population to a fraction of the blockaded territory of Gaza. This concerted military offensive has been ongoing since and continues at the time of writing.
Under international law, Israel does not have a right to self-defence against threats emanating from occupied territory under its control and domination. Regardless, any use of force by Israel as the occupying power is bound by international human rights and humanitarian law.
As of the beginning of September 2024, Israel’s offensive in Gaza had resulted in the killing of more than 40,000 Palestinians, of which over 16,000 were children, with at least another 94,000 injured. Around 1.9 million of Gaza’s 2.1 million population have been internally displaced, many of those multiple times. There has been massive damage to civilian infrastructure. In the West Bank, at least 676 people have been killed, more than 5,400 injured, and more than 10,000 have been detained.
Israel’s actions are under examination by the ICJ as a plausible case of genocide, which the ICJ has called on Israel and all third parties to act to prevent by ending all other forms of violence and international law violations included in the compounded aggravated definition of genocide. As noted in November 2023 by the International Commission of Jurists, under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, “it is not necessary for a definitive determination that genocide is taking place” to trigger the prevention duties of states and international organisations. Multiple warnings of a genocide ‘in the making’ have been made, including by UN human rights experts on 16 November 2023.
On 26 January 2024, the ICJ issued a provisional measures ruling in the case brought against Israel by South Africa held that there is a plausible risk that genocide is taking place in Palestine, thus affirming that there is “a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court” concerning the commission of acts contrary to the Genocide Convention, “without making definitive findings of fact”.
The aggravated nature of the act of genocide triggers the obligations of third-party states to prevent the commission of acts that contribute to its perpetration – including those that are supplying arms, providing military assistance, and engaging in military cooperation with Israel.
In February 2024, a panel of 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 and must cease immediately”.
In its Order of 30 April 2024, in the case on Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), the ICJ recalled that pursuant to common Article 1 of the Geneva Conventions, all States Parties to the Conventions, whether or not party to a specific conflict, are obligated to “ensure that the requirements of the instruments in question are complied with”. It further reminded “all States of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used to violate [the Genocide and Geneva Conventions]”.
On 20 May 2024, the International Criminal Court (ICC) Prosecutor Karim A.A. Khan KC filed applications for warrants of arrest before Pre-Trial Chamber I in the Situation in the State of Palestine for Benjamin Netanyahu, the Prime Minister of Israel, and Yaov Gallant, the Minister of Defence of Israel, on the basis of evidence that they bear criminal responsibility for the war crimes and crimes against humanity committed in Gaza from at least 8 October 2023. Additional arrest warrants were also filed for Yahya Sinwar, Head of Hamas in Gaza, Mohammed Diab Ibrahim Al-Masri, Commander-in-Chief of Hamas military wing (Al-Qassam Brigades), and Ismail Haniyeh, Head of Hamas political bureau on similar grounds.
On 24 May 2024, the ICJ issued another Order calling on Israel to “immediately halt its military offensive” in Rafah, which began on 7 May 2024, finding that “the current situation arising from [the offensive] entails a further risk of irreparable prejudice to the plausible rights claimed by South Africa under the Genocide Convention.”
Then, on 19 July 2024, the ICJ issued an Advisory Opinion on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. The court considered that Israel’s continued presence in the Occupied Palestinian Territory is unlawful for being in breach of the prohibition on the acquisition of territory by force (and thus an act of aggression), and amounting to a denial by Israel of the Palestinian people’s internationally-recognised right to self-determination.
The Court concluded that the “separation” implemented by Israel in the West Bank between the Palestinian population and settlers constitutes a breach of Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), whereby “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” The Court further recalled that all states are under an obligation not to recognise as lawful any changes to the pre-1967 borders other than those agreed by the parties through negotiations, and not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory.
President Nawaf Salam, in his appended Declaration to the Advisory Opinion, notes the Opinion demonstrates that “Israel’s discriminatory laws and measures in the Occupied Palestinian Territory … are tantamount to the crime of apartheid”, and unambiguously identifies “Israel has committed numerous inhumane acts in the Occupied Palestinian Territory … as part of an institutionalized régime of systematic oppression and domination of one racial group over another.”
** The use of the denomination Occupied Palestinian Territories (OPT) by some UN bodies and states has often been chosen not to prejudice some states’ continued denial of recognition of Palestine‘s status as a state, despite the recognition it has received from over 140 states and the dozens of international organisations which Palestine has formally joined as member, and international treaties it acceded as state party.
Related legal developments
While the ATLM tracks and documents legal challenges related to authorised arms transfers to Israel, in the context of the situation in Palestine, there have been other legal developments that have significant implications for arms trade related to the ongoing conflict.
Explore the drop-down boxes below to find out more information about these developments.
On 5 February 2024, the regional government of Wallonia in Belgium announced that it temporarily suspended two arms export licences to Israel. In its statement, it cited the International Court of Justice decision from 26 January 2024, which recognised the existence of a real and imminent risk of genocide in Gaza (see below).
The decision came after Amnesty International Belgium, the Human Rights League, the National Coordination of Action for Peace and Democracy and Vredesactie published an open letter on 2 February 2024 calling on Walloon Minister-President Elio Di Rupo to immediately halt arms exports to Israel. In the letter it was stated that there is a real risk of Wallonia contributing to serious violations of human rights and international humanitarian law by exporting arms to Israel in the context of the war in Gaza. The letter also cited the ICJ ruling. The NGOs threatened legal action if the government continued its exports to Israel.
On 26 January 2024, the International Court of Justice (ICJ) ruled on the ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) Request for the indication of provisional measures’. The court ordered Israel to: refrain from committing acts within the scope of the Genocide Convention; prevent and punish incitement to genocide; take immediate and effective measures to ensure the provision of urgently needed basic services and humanitarian assistance; take effective measures to prevent the destruction of evidence; and submit a report to the court on its compliance with the ordered provisional measures by 26 February 2024.
On 16 February 2024, the ICJ refused South Africa’s request for additional provisional measures to safeguard Rafah, Gaza amid Israel’s plans for a military offensive on the city. However, the ICJ stated that “the perilous situation demands immediate and effective implementation of the provisional measures indicated by the Court in its Order of 26 January 2024, which are applicable throughout the Gaza Strip, including in Rafah, and does not demand the indication of additional provisional measures.” The Court further emphasised that Israel “remains bound to fully comply with its obligations under the Genocide Convention and with the said Order, including by ensuring the safety and security of the Palestinians in the Gaza Strip.”
On 6 March 2024, South Africa filed an urgent request for additional provisional measures and the modification of the Court’s Order of 26 January 2024 and decision of 16 February 2024. In the request, South Africa stated that it is “compelled to return to the Court in light of the new facts and changes in the situation in Gaza — particularly the situation of widespread starvation — brought about by the continuing egregious breaches of the Convention on the Prevention and Punishment of the Crime of Genocide . . . by the State of Israel . . . and its ongoing manifest violations of the provisional measures indicated by this Court on 26 January 2024”.
For more detail on the provisional measures ordered, read Just Security’s summary of the ICJ judgement.
On 1 March 2024, the Republic of Nicaragua filed an application against Germany at the International Court of Justice. In the application, Nicaragua requested the Court to adjudge and declare that Germany by its conduct, with respect to the serious violations of peremptory norms of international law taking place in the Occupied Palestinian Territories:
a) has not only failed to fulfil its obligation to prevent the genocide committed and being committed against the Palestinian people – including those in its component part in the Gaza Strip – but has contributed to the commission of genocide in violation of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter “Genocide Convention”);
b) has failed to comply with its obligations under international humanitarian law, derived both from the Geneva Conventions of 1949 and its Protocols of 1977 and from the intransgressible principles of international humanitarian law, by not respecting its obligations to ensure respect for these fundamental norms in all circumstances;
c) has failed to comply with other peremptory norms of general international law in particular by rendering aid or assistance in maintaining the illegal situation of the continued military occupation of Palestine including its ongoing, unlawful attack in Gaza;
d) has failed to comply with other peremptory norms of general international law in particular by rendering aid or assistance and not preventing the illegal regime of apartheid and the negation of the right of self-determination of the Palestinian people.
On 4 March 2024, a communiqué was submitted to the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) to call for the commencement of a preliminary examination of, and thereafter an investigation into, crimes within the ICC’s jurisdiction that may have been committed by members of the Australian government, its officials, and the Leader of the Opposition, in the context of the ongoing situation in the Occupied Palestinian Territories. The communiqué alleges that the Australian government and its most senior officials “have both failed to prevent or respond to the genocide committed by Israel against Palestinians in Gaza and been complicit in the carrying out of this genocide”.