Gaza Unfolding Part II – Justice Delayed is Justice Denied 

Since the Hamas attacks in Israel on October 7, 2023 and the subsequent military response in Gaza, the peace and justice community in the Hague expressed the need have dialogue about the situation and not succumb to, what felt like, a deafening silence. This led to the Humanity Hub launching the Gaza Unfolding series in December 2023. 

The aim of the Gaza Unfolding series is to convene professionals in the peace and justice community, including practitioners, researchers, and policy makers in a safe space to allow for reflection, connection, and discussion with experts on the unfolding situation in the Gaza Strip and the wider region.  

Justice Delayed is Justice Denied took place on 11 January as the second event of the Gaza Unfolding series. It featured speakers touching upon different legal mechanisms applied with regards to the situation in Gaza. The discussion was enriched by questions and dialogue initiated by the audience composed of about 140 professionals of the peace and justice community. The interactive component of the event was conducted under Chatham House rules and was not documented.  

The panel consisted of the following speakers:  

• Raji Sourani, Human Rights Lawyer from Gaza and Director of the Palestinian Centre for Human Rights (PCHR); 
• John Quigley, Professor of International Law at Ohio State University; 
• Frank Slijper, Arms Trade Project Lead at PAX 
• Triestino Mariniello, Legal Representative of Victims for Gaza victims before the ICC 
• Kathrine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights 

The conversation was moderated by Hanna Bruinsma who is a Legal Advisor at Law for Palestine.  

A video recording of the panel discussion is available

John Quigley is a long-term researcher on the legal issues in the Palestine question. He provided a compelling overview of the mechanisms of the Genocide Convention and why South Africa can bring the case to the International Court of Justice. The Genocide Convention is unique because it allows states not directly affected by the actions of other states to bring a case in front of the International Court of Justice. 

“The Genocide Convention is misunderstood: the application of the convention is not a matter of the number of deaths but about the employed rationale.”

John Quigley, Professor of International Law at Ohio State University

With this interpretation, Quigley argued that a genocide has been carried out since the 13^th of October when the Israeli government issued an evacuation order for all Gazans including hospitals. The Genocide Convention requires an intent to bring physical harm and at the time the evacuation order was issued, the Israeli government was aware that a consequence of these actions would cause the death of Palestinian civilians. When looking at the statements issued by Israeli officials, the intent and rationale behind the actions of the Israeli government is evident, according to Quigley.  

Prof Quigley also discussed the potential impact of the case at the International Court of Justice, spotlighting that this case could alter the international discussion on Gaza over a longer time. Previously, the discussion of legality has centred on the military objective of Israel’s operations, while now there is a broader claim of the entire Israeli operation in Gaza being deemed illegal. Therefore, Quigley continued, it would be difficult for countries to continue to stand with Israel if the provisional measures declare the operation illegal.  

The International Criminal Court (ICC) – The status of the investigation of crimes faced by Palestinians 

Triestino Mariniello highlighted the double standards and subjectivity shown by the Prosecutor of the ICC with regards to the Palestinian case. The Investigation into war crimes and crimes against humanity against Palestinians opened in 2021. Although the situation in Gaza was first brought to the Court in 2009, the opening of an investigation was partly hindered by the uncertainty about the legal status of Palestine as a state. However, since the opening of the case, no effective investigation has taken place. The case was assigned little to no budget and there were no agenda points before October 7. In comparison, the prosecutor was very active and outspoken in the case of the Russian aggression against Ukraine. By the time the prosecutor took action, over 1000 Gazans had already been killed. Yet, according to Mariniello, the prosecutor has continued to apply double standards and selectivity by referring to crimes committed by Hamas on October 7, but paying little attention to the situation unfolding in Gaza, both currently and historically.  

According to Mariniello, the Prosecutor emphasised the responsibility of non-state actors such as armed groups in Palestine but did not acknowledge the settlers violence in the West Bank and crimes carried out by the Israeli state as these accounts are not mentioned in the ICC case file.  

“Palestine needs the ICC, but the ICC also needs Palestine. The Palestine case is the final test for ICC to prove its legitimacy and credibility in withstanding pressure from large states after its “questionable” decisions on Afghanistan and Iraq.”

Triestino Mariniello, Legal Representative of Victims for Gaza victims before the ICC

Strategic litigation – the case against the Dutch arms trade  

Pax is one of the NGOs (together with The Rights Forum, Oxfam Novib, and Amnesty International Netherlands) taking the Dutch government to court over the continued export of parts for F35 fighters to Israel. The International Arms Trade Treaty Article 6.3 and Article 7 signal the prohibition of weapons supply when there is a risk of the weapons being used against civilians or in violation of international humanitarian law or human rights law. The International Arms Treaty and EU directives both state that a government should reconsider its case if circumstances change. The Dutch Civil Court agreed that the circumstances changed with the escalation in Gaza, but that the Dutch government should also consider its relationships with the USA and Israel in its assessment.  

“The reputation of the Netherlands as a reliable partner in the F35 industry is at stake which is causing the government to be complicit with grave violations of their own policies.”

Frank Slijper, Arms Trade Project Lead at PAX 

Complicity in Genocide – The case against the US state  

Kathrine Gallager from The Center for Constitutional Rights (CCR) explained their case against the government of the United States. CCR argues that the situation unfolding in Gaza could not have evolved if the US had not been the biggest exporter, supplier and supporter of Israel and its military. The CCR argues that the US government is complicit in genocide as it has only reinforced its support for Israel, even after genocidal intent declared by Israeli officials.  

The CCR has taken the US government to the Federal Court, aiming for a declaratory judgement. The government has defended itself by addressing the issue of the political question doctrine rather than the allegations of genocide. Rather than defending themselves, the government is arguing that a Court does not have the jurisdiction to review the foreign policy of the government.  

The CCR together with 77 other organisations have challenged this and are set to continue the case arguing that the American government is breaching international law by continuing to sustain the Israeli military in its operations in Gaza.  

The experiences of a human rights defender from Gaza  

Raji Sourani shared personal testimonies of the current situation in Gaza and his hopes and expectations of the cases presented in front of the international justice mechanisms. He stated that history was made at ICJ in the morning of that day, [the event took place 11 January 2024, the date of the initiation of the hearings at the ICJ] and that he is proud. He reinforced the moral authority of South Africa in bringing the case to court and for choosing to stand on the right side of history.  

Sourani was less positive about the case at the ICC, echoing several points made by Mariniello. He shared his disappointment with the position of the court, emphasising that the ICC should be the “legal conscience of victims and the voiceless” and therefore bring justice to Palestinians. He is also disappointed by the Prosecutor’s lack of engagement in the case and underlined that the subjectivity and polarisation in the interpretation of international law cannot be accepted.  

To close the panel, he left the audience with a sense of the daily reality of Gazans. In his testimony, Sourani told how at least 300 people are killed in Gaza every day, with many still left under the rubbles. Entire families are being wiped out. People are not only displaced once but four, five or six times as they are forced to be on the move constantly. The bombings are pushing people closer to the Egyptian border. “You feel death coming from the sky”.  

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Since we launched the Gaza Unfolding series, the situation continues to evolve. The content above reflects the discussions held during the events, based on the information available at the time. You can find more information about the series as well as links to resources and other activities by the peace and justice community related to these developments on this page.