Gaza at the ICC: Seeking Justice for Palestinian Displacement amid Genocide
On November 21, the International Criminal Court’s Pre-Trial Chamber (“ICC” or “the Court”) issued arrest warrants for Benjamin Netanyahu and Yoav Gallant, Prime Minister and former Minister of Defense of Israel, respectively, for crimes in Palestine. The warrants allege Netanyahu and Gallant may be responsible for several crimes related to the ongoing war on Gaza, perhaps most notably war crimes related to the targeting of civilians and the deprivation of food and other survival necessities, causing starvation and denial of critical care to the entire Gazan population. The ICC also stated that there are reasonable grounds to believe that Gazans are being denied fundamental rights on the basis of political or national affiliation, amounting to the crime against humanity of persecution. The exact evidence which underlies these alleged crimes is not made public at this time. However, as it unfolds, the investigation which led to the warrants could uncover and catalogue evidence related to decades of human rights violations that amount to crimes against humanity, including transgressions against Palestinians’ right to return to their land.
The crime against humanity of persecution is integral to the International Human Rights Clinic’s (IHRC) current project on the Palestinian Right to Return, a joint effort with the International Centre of Justice for Palestinians (ICJP). The Right to Return is a fundamental human right, codified in humanitarian law, human rights law, and nationality law. Our communication to the Office of the Prosecutor (“OTP” or “the Prosecutor”) of the International Criminal Court sets out how violations of this right are justiciable under the Rome Statute. One legal theory, among several, asserts that widespread or systematic violations of the Right to Return of a particular ethnic, religious, or national group amount to persecution. This argument could be readily incorporated into the current investigation into the crimes against humanity of persecution, by taking into account evidence related to land expropriation, evictions, and other forms of dispossession in the ongoing case against Israeli agents, in order to obtain justice and recognition for the decades of systematic denial of Palestinians Right to Return to their homeland.
A historical account of Palestinian displacement is vital to understand the Right to Return, and the severity of the present situation. Our submission, and a significant body of existing scholarship and documentation, identify Israeli laws, policies, and practices which have forcibly displaced Palestinians, wrongfully expropriated their land, destroyed their homes and community buildings, and erected an administrative and physical infrastructure which bars Palestinian return. For example, illegal Israeli settlements have been funded and supported by state policies and constructed on formerly Palestinian land, shrinking the space where Palestinians can live on their own territory. As we set forth in our communication, this historical background can be incredibly productive to a legal theory of crimes against humanity, but the crimes have not stopped. The majority of Palestinians who became refugees were forced to flee to Gaza and the West Bank from the territory of today’s Israel. Gaza’s current population is made up of 80% refugees and descendants of refugees. These Palestinians displaced from the 1948 and 1967 conflicts now face further persecution, and, in the case of Gaza, further displacement and prohibition of return because large portions of the Gaza Strip have become uninhabitable since 2023.
On December 3, 2024, the Clinic co-organized an event on the sidelines of the Assembly of States Parties (ASP) to the Rome Statute in The Hague, concerning the communication and the Palestinian Right to Return. Professor Jeff Handmaker and the Legal Mobilization Platform hosted us at the International Institute of Social Sciences and moderated our discussion.. The event allowed us to shed light on an aspect of the situation in Palestine and the war in Gaza which ought not to be overlooked: the genocide in Gaza is a part of a project to clear Palestine of Palestinians. Amid the urgency of putting a stop to the ongoing genocide, international criminal law must also be applied to the larger historical arc of Israeli agents’ actions that prevent Palestinians from peacefully residing in their lands.
Susan Akram, IHRC’s Director, spoke about the fundamental nature of the Right to Return in international law, describing how foundational the right is across multiple bodies of law, and providing examples of Palestinian villages and communities who have sought to assert their Right to Return through the Israeli judicial system and various international human rights bodies. She also gave a thorough account of the laws and practices through which Israel has accomplished its goals of expelling Palestinians, taking Palestinian land and claiming it exclusively for Jewish Israelis, and preventing Palestinians from returning and obtaining restitution of their homes and lands.
Haydee Dijkstal, Chief External Counsel at ICJP, expanded on our legal theories about crimes against humanity which violate the Right to Return. As an expert on international criminal law and practitioner before the ICC, Dijkstal made the case for the prosecution of certain crimes and presenting the OTP with evidence that can be used in a potential case. Her comments touched on the arrest warrants, the ongoing investigation, and the applicability of crimes against humanity to the return of Palestinian people to their land.
Finally, our colleague Ahmed Abofoul, Senior Legal Advisor at Al Haq, the oldest human rights organization in Palestine, spoke more about the present situation in Gaza and specifically about the current forced displacement. Abofoul was able to offer a sobering, razor-sharp perspective about the denial of Palestinians’ access to their ancestral lands. He asserted that he did not see the current world as post-colonial, but one where some states still think of themselves as “masters.” In his view, the settler-colonialism of Israel is perpetuated, in large part, because of a system that gives immunity to Israeli perpetrators, allowing them to subjugate Palestinians with one, very clear ultimate goal: to remove the Palestinian people entirely from the land and settle their lands with Jewish Israelis. Regarding Israel’s violent pursuit of this goal, he criticized the willingness of the West to participate in an ally’s administration of a neo-colonial state and to all but condone the commission of a genocide. To this point, he reminded the audience that international law and international criminal law, the latter largely born at Nuremberg, are the inheritance of the entire global community and should be used to bring justice for all victims against all perpetrators, and not selectively as a political tool. The Court and the rule of law, which are under intense scrutiny and pressure since the arrest warrants, must be respected in order to secure the justice for which they were established and ensure peace and security for all. Ultimately, States Parties to the Rome Statute and the Court must uphold that people whose fundamental rights are violated, like the Palestinians, can seek redress and access justice.
As a Gazan himself, Abofoul asserted that he and other Palestinians would do anything to reclaim even a centimeter of their former homes and, once allowed to return, “would stand there forever.”
The conversation that we co-organized was one of several events relevant to the situation in Palestine on the sidelines of the Assembly of States Parties’ annual convening. At the same time as our event, Al-Haq co-hosted an event titled Documenting Attacks on Healthcare in Sudan, Ukraine and Palestine — Leveraging Tech and Authenticated Footage for Accountability. The next day, ICJP hosted an event titled Destruction of Gaza’s Healthcare Facilities that shed light on the immense human cost of the war. Dr. Junaid Sultan, a vascular surgeon who worked in Gaza for three weeks earlier in 2024, shared his experiences treating patients in dire conditions. He recounted stories of extreme suffering, experienced by patients as young as 8 years old. Echoing Ahmed Abofoul’s remark at the conclusion of IHRC’s event, Dr. Sultan insisted on the imperative to work to affirm humanitarian law whose principles he had seen thoroughly trampled on during his time in Gaza. In addition to these important appeals, advocates for Palestinian rights raised, in other events during the week of the ASP, the importance of ensuring Rome Statute States Parties’ cooperation with the investigation and the broader situation of impunity throughout the Occupied Palestinian territories. All of these conversations reflect a growing commitment among civil society actors and legal practitioners to amplify Palestinian voices, insist on the need for an immediate ceasefire, and advocate for justice in Gaza on the international stage.
Student Attorney in the Boston University Human Rights Clinic
