A Palestinian man watches as smoke rises after Israeli strikes during a ground and air operation by Israeli forces in the eastern part of Rafah. This occurred amid the ongoing conflict between Israel and Hamas in Rafah, located in the southern Gaza Strip, on 7 May, 2024. REUTERS/Hatem Khaled

With Israel and Hamas coming under growing pressure for a ceasefire, the world's highest courts have now ruled on suspected atrocities. Global Insight assesses their conclusions and what they mean for the conflict.

For a region that is mostly under authoritarian rule, notorious for disregard of rights and liberties, the Middle East has suddenly embraced the phrase ‘international law’ as part of its everyday lexicon.

In the face of an internecine war on the Gaza Strip and inspired by a high-profile case that South Africa brought against Israel at the International Court of Justice (ICJ), many players in the region are increasingly acknowledging the value of international law and institutions when military power is touted as the only option on the table.

Egypt, for one, said in May that it would join South Africa in its case against Israel. When leaders from 22 Arab countries held a summit in Bahrain, their final communique urged Israel to adhere to international humanitarian law by not displacing Palestinians. And when the ailing Saudi monarch King Salman made a rare media appearance, the first in many months, he showed up during a cabinet meeting that rebuked Israel for ‘violation of international laws and decisions’. Arab media outlets have recently been putting in overtime hosting legal experts to explain how concepts of international humanitarian law can stop the intractable war, which erupted on 7 October after the Islamic Resistance Movement, known as Hamas, launched a strike on Israel that killed 1,200 people.

This Middle Eastern attention to international law came as the world’s highest courts weighed in on the belligerent struggle that has traumatised many around the world in a series of public gestures and rulings.

In January, the ICJ asked Israel to take ‘provisional measures’ in order to avoid the crime of genocide. In May, a panel of international law experts, that included two former judges at criminal tribunals in The Hague, evaluated evidence of suspected war atrocities in Gaza and Israel. The group unanimously endorsed an assessment by the Prosecutor of the International Criminal Court (ICC) that it has jurisdiction over the violations committed in Gaza.

The experts also found that there were ‘reasonable grounds to believe’ that individuals named in arrest warrants by the ICC Prosecutor Karim Khan have committed war crimes or crimes against humanity. The warrants were directed at three senior leaders of Hamas and at Israeli Prime Minister Benjamin Netanyahu and his Defence Minister, Yoav Gallant.

According to a report by the panel, the crimes that solicited this exceptional conclusion included starvation as a method of warfare, murder, persecution and extermination. The experts wrote in an op-ed that the charges relate to ‘waging war in a manner that violates the long-established rules of international law that apply to armed groups and the armed forces in every state in the world’. The UN estimates that five per cent of Gaza’s population has been killed or injured, more than 75 per cent displaced and more than 70 per cent of homes destroyed.

The importance of the rulings and such moves cannot be over-stated in a region whose populations have grown disillusioned with the law, endured a sense of being abandoned and who are often consumed by a notion of the existence of international double standards. For many, the experts and international organisations that have stated the significance of international law in this conflict have revived principles of accountability and objective legal standards.

‘I do not accept that any conflict should be beyond the reach of the law, nor that any perpetrator should be above the law’, says Amal Clooney, a member of the panel and Co-Founder of the Clooney Foundation for Justice, in a statement that accompanied the findings. ‘So I support the historic step that the Prosecutor of the International Criminal Court has taken to bring justice to victims of atrocities in Israel and Palestine.’

Francesca Albanese, UN Special Rapporteur on the occupied Palestinian territories, says the conflict is political at the core but could be avoided by international law which sets clear rules for armed conflicts. ‘This situation is the outcome of a political choice and can be avoided and corrected by compliance with international law’, she said in a press conference in Cairo that concluded her inspection visit to the border areas in Jordan and to the Gaza line with Egypt.

But, despite the shot of confidence in international law received by the region, the real drivers of the conflict have not yet been addressed; namely violence, militant activities, Israel’s policy to undermine the Palestinian Authority, the only current alternative to Hamas, and settlement expansion.

On 24 May, the ICJ called on Hamas to release Israeli hostages captured on 7 October and ordered Israel to refrain from military operations that could lead to the destruction of the population in the Gaza Strip border city of Rafah.

Israel responded by carrying out 64 strikes in the area over a period of only 48 hours. The attacks included air strikes on a tent campsite in Tal al-Sultan in Rafah that claimed at least 46 lives including 23 women and children, with dozens suffering from severe burns. A group of UN legal experts described the attacks as ‘barbaric’ and ‘a flagrant violation of international law’.

Israel has also refused to abide by UN General Assembly and Security Council resolutions. Israel says its war is against Hamas, not against Palestinian civilians, that it has the right to defend itself and that its military operations are fully consistent with international law. Hamas, on the other hand, maintains that it’s resisting a military occupation and that the law shouldn’t equate the victims with perpetrators.

Director-General of South Africa’s foreign ministry Zane Dangor said his government would ask the Security Council to order Israel’s compliance with court rulings. By contrast, several top US politicians suggested that no international organisation should be above national sovereignty. Many observers expect the US to continue to shield Israel if the issue is brought before the UN Security Council.

Fadi Abbas, Head of the Palestinian Bar Association, says ‘the US infinite support for Israel hinders the application of international law. All international decisions eventually crash on contact with the US veto’.

But while Washington, Israel’s main international ally, offers the coverage Netanyahu needs, the ICC process could proceed without US approval as warrants are binding for some 120 other countries.

As both Hamas and Israel refuse to back down, the conflict is likely to continue. Nevertheless, international law has provided some solace for the people of the region and hope for those starved of justice.

Emad Mekay is a freelance journalist and can be contacted at emad.mekay@int-bar.org