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A group of United Nations experts have expressed concern that Palestinians are at “grave risk of genocide” and that the situation in Gaza has reached a “catastrophic tipping point”.
Israel has bombarded Gaza since Hamas’ 7 October attack in which more than 1,400 people were killed, according to the Israeli government, and over 240 hostages taken.
More than 9,400 people have been killed in Gaza since 7 October, according to the health ministry in Hamas-controlled Gaza.
On 13 October, the Israeli military told nearly half of Gaza’s population to move south, before launching a land offensive to destroy Hamas infrastructure and , as well as its command and control systems.
For the , they remain trapped inside the enclave after Israel closed the Rafah border crossing following the Hamas attack, with the state temporarily opening it for three days last week.
The intense bombardment of Gaza has caused devastation in refugee camps, targeted ambulances and hit shelters in schools in recent days.
Israel has cut off electricity and fuel supplies, enforcing a near complete blockade with limited trucks allowed into Gaza – as food, water, fuel and medicine supplies run out.
The humanitarian crisis prompted Jordan’s air force to dropped medical supplies via parachutes on Monday and three French planes delivered 54 tonnes of aid to Egypt over the weekend, adding to ceasefire calls so aid can reach the war zone.
“We remain convinced that the Palestinian people are at grave risk of genocide,” the group of seven UN special rapporteurs said in a statement on Thursday.
“We demand a humanitarian ceasefire to ensure that aid reaches those who need it the most.”
Israeli Prime Minister Benjamin Netanyahu has rejected calls for a ceasefire until all hostages are safely returned.
“We say this to our friends and to our enemies. We will simply continue until we defeat them. We have no alternative,”
What constitutes genocide under international law?
In 1946, the United Nations General Assembly declared genocide a crime under international law.
Article II of the Convention specifies it as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
These acts include killing members of the group, causing bodily or mental harm, deliberately inflicting conditions that bring about destruction or prevent births and the forceful transfer of children.
Member states, which includes Israel, have an obligation to enforce the convention by not committing the acts but also recognising genocide and punishing the actor.
Sarah Williams, Professor of International Law at University of New South Wales, said what gets investigated is the dolus specialis or “specific intent” of the acts towards a group of particular race, nationality, ethnicity or religious group.
“You have to both intend to do what you’re doing, and also intend to do it because it’s going to allow you to destroy a group,” she told SBS News.
“So if you’re doing any of those actions for other reasons, then it wouldn’t be genocide.
“It’s a very hard crime to actually establish because you need that particular intent.”
She said historically states were reluctant to declare genocide which forces them to collectively take action in terms of punishing and prosecuting it.
How can you prosecute?
Juliette McIntyre, Lecturer of Law at the University of South Australia, said allegations and evidence of genocide have to be put before a court for examination.
A number of sources can be used to prove a crime that includes statements from public officials, information from NGOs, social media posts, information from other states and reports from refugees or people that fled the conflict.
McIntyre broke it down to three main options for prosecution:
The International Court of Justice (ICJ) can be used by a member state of the UN Genocide convention to bring a prosecution against another member.
Gambia has recently brought forward an ICJ case against Myanmar alleging genocide against Rohingya people. They used public statements of officials, social media posts and witness statements as part of their evidence.
The International Criminal Court (ICC) is more like a “domestic criminal proceeding, where you are prosecuting an individual for the crime of genocide”, said McIntyre.
The prosecutor opens a case where they look at specific crimes by a high ranking military official or a government official for their role in the commission of genocide.
However, the ICC does not hold trials in absentia and it is difficult to arrest and bring people in for trial.
Karim Khan has served as Prosecutor of the International Criminal Court (ICC) since 2021. Source: AAP / Mauricio Duenas Castaneda/EPA
The ICC Prosecutor Karim Khan established a case to investigate the Palestine situation in 2021 and attempted to enter Gaza last week to assess the current situation.
Khan told reporters that Israel needed to make “discernible efforts” to ensure civilians in Gaza have access to basic needs to avoid “criminal responsibility.”
“There should not be any impediment to humanitarian relief supplies going to children, to women and men, civilians,” Khan said from the Rafah border crossing on 29 October.
Finally, the UN Security Council could issue a resolution around concerns of a genocide and authorise the use of force by other states to go in and prevent more violence.
“But that’s not going to happen because of the United States veto,” McIntyre said.
“The US won’t allow anything to go through that relates to Israel. So that’s a bit of a non-starter, but it does exist there in the kind of enforcement space for international law.”
What has Israel said about the war on Hamas?
Netanyahu has from the onset described the war as retaliation for the deadliest day of violence in Israel for 50 years, vowing he would take “mighty vengeance”.
Netanyahu detailed Israel’s objectives for the current mission:
“We are in the middle of a war for our existence. We have set two goals for the war: to annihilate Hamas by destroying its military and governance abilities and to do everything possible to bring our hostages back home.”
However, comments by other ministers like Israeli Defense Minister Yoav Gallant have drawn criticism.
He publicly stated that “Gaza won’t return to what it was before … We will eliminate everything.”
– With additional reporting by Reuters.
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