Introduction
The military campaign Israel launched in Gaza following the Hamas attacks of 7 October 2023 has generated the most intense legal controversy in the history of the laws of armed conflict. More than fifty states have filed or supported formal proceedings before the International Court of Justice; arrest warrant applications have been submitted at the International Criminal Court; universal jurisdiction cases have been opened in courts across Europe; and the UN General Assembly has repeatedly affirmed the international community’s collective concern about compliance with international humanitarian law. At the heart of these legal proceedings lies a set of extraordinarily difficult questions: when does the conduct of hostilities in a densely populated urban environment cross the threshold from lawful military operations (however tragic in their human cost) into violations of customary international humanitarian law; when do those violations reach the legal threshold of genocide under the 1948 Genocide Convention; and how does the international legal order hold states accountable when those states are close allies of the Security Council’s most powerful permanent member?
This article examines South Africa’s application to the ICJ invoking the Genocide Convention, the provisional measures orders issued by the Court, the IHL framework governing the conduct of hostilities and the use of starvation as a weapon, the ICC proceedings, and the significant accountability gap that persists. It also considers India’s abstention in related UN votes and the developing-country perspective on accountability mechanisms that have been applied selectively.
Legal Framework
International humanitarian law governing situations of armed conflict draws from multiple treaty regimes and customary law. The four Geneva Conventions of 1949 and their Additional Protocols (1977) form the core treaty framework. Common Article 3, applicable to non-international armed conflicts, prohibits violence to life and person, cruel treatment, and the taking of hostages against persons not taking active part in hostilities. Additional Protocol I, applicable in international armed conflicts, codifies the fundamental principles of distinction (distinguishing between combatants and civilians), proportionality (prohibiting attacks where civilian casualties would be excessive in relation to the anticipated military advantage), and precaution in attack.
The prohibition on starvation of civilians as a method of warfare is codified in Article 54 of Additional Protocol I and Article 14 of Additional Protocol II, and reflects customary international law applicable in both international and non-international armed conflicts. The Rome Statute of the ICC expressly lists intentionally using starvation of civilians as a method of warfare as a war crime (Article 8(2)(b)(xxv) for international armed conflicts, and after the 2019 amendment, Article 8(2)(e)(xix) for non-international armed conflicts). The 2019 amendment was significant because it closed a gap that had been exploited in earlier conflicts.
The Genocide Convention 1948 defines genocide in Article II as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. The enumerated acts include killing members of the group, causing serious bodily or mental harm, deliberately inflicting conditions calculated to bring about physical destruction in whole or in part, imposing measures to prevent births, and forcibly transferring children. Critically, genocide requires proof of a specific intent (dolus specialis) to destroy the group as such. This is the most demanding mens rea requirement in international criminal law, and it distinguishes genocide from crimes against humanity (which require widespread or systematic attack against a civilian population but not specific destructive intent toward a group) and from war crimes.
Judicial Developments
South Africa filed its Application against Israel at the ICJ on 29 December 2023, invoking Article IX of the Genocide Convention, which grants the Court jurisdiction over disputes between contracting parties relating to the interpretation, application, or fulfilment of the Convention. South Africa’s application alleged that Israel’s military campaign in Gaza, combined with restrictions on humanitarian aid, was causing conditions calculated to bring about the physical destruction of the Palestinian people in Gaza, and that Israeli officials’ public statements evidenced the requisite genocidal intent.
On 26 January 2024, the ICJ issued its Provisional Measures Order. The Court found that the rights asserted by South Africa (the right of Palestinians to be protected from genocide) were plausible, and that the risk of irreparable prejudice was sufficiently urgent given the scale of casualties and humanitarian deprivation. The Court’s provisional measures required Israel to take all measures within its power to prevent the commission of acts within the scope of the Genocide Convention; to ensure its military forces do not commit acts within the scope of the Convention; to prevent and punish incitement to genocide; to ensure and enable access to humanitarian assistance; and to preserve evidence related to the allegations. Crucially, the Court did not order a ceasefire, and it did not make a preliminary finding that genocide was occurring. It found only that South Africa’s claims were plausible enough to warrant provisional protection.
A second set of provisional measures was issued on 28 March 2024 specifically addressing the humanitarian situation, with the Court ordering Israel to ensure unimpeded access to humanitarian services and to increase the provision of basic services and humanitarian assistance to Gaza. A third order in May 2024 required Israel to halt its military offensive in Rafah insofar as it may inflict conditions that could bring about the physical destruction of the Palestinian population in Gaza.
In parallel, the ICC Prosecutor Karim Khan applied in May 2024 for arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defence Minister Yoav Gallant, and senior Hamas leaders. The charges against Israeli officials included war crimes (starvation of civilians as a method of warfare, wilfully causing great suffering, wilful killing, attacks against civilians) and crimes against humanity. The Pre-Trial Chamber issued the warrants in November 2024. The issuance provoked fierce political controversy but was legally unremarkable: ICC arrest warrants have been issued against sitting heads of state before, most notably against Sudan’s Omar al-Bashir. The practical enforcement challenge in those instances anticipates the difficulties in the Israel situation.
Universal jurisdiction applications have been filed in courts in Spain, Belgium, the Netherlands, and several other European states, invoking the principle that certain crimes are so serious that any state may prosecute, regardless of where the acts occurred or the nationality of perpetrators or victims.
Contemporary Issues and Analysis
The legal controversy in the Gaza context crystallises several fundamental tensions in international humanitarian law. The first concerns the distinction principle in urban warfare. Gaza’s population density, the presence of military infrastructure within civilian areas, and the use of tunnel networks by Hamas create genuine complexity in applying the distinction principle. Israel argues that its targeting decisions comply with IHL; critics including the UN Special Rapporteur on extrajudicial executions and multiple human rights organisations have documented patterns of attack on hospitals, schools, and residential buildings that, they argue, cannot all be justified as attacks on military objectives.
The starvation question has received particular attention because the humanitarian data, including from Israel-friendly sources, showed a dramatic reduction in food imports entering Gaza beginning in October 2023. The UN Integrated Food Security Phase Classification declared conditions of famine in northern Gaza in March 2024. International law prohibits the use of starvation as a method of warfare and requires parties to an armed conflict to allow and facilitate rapid and unimpeded passage of humanitarian relief for the civilian population. The combination of military operations destroying civilian infrastructure and restricted access at crossing points has raised the question of whether Israel’s conduct satisfies the actus reus of the starvation war crime, regardless of intent.
The genocide question is the most legally demanding. The specific intent requirement means that even extensive civilian casualties and severe humanitarian deprivation do not automatically constitute genocide: the prosecution must prove that Israeli forces acted with the intent to destroy Palestinians as a group, rather than with the intent to defeat Hamas militarily (which might incidentally, if disproportionately, cause civilian casualties). Statements by Israeli officials dehumanising Palestinians or calling for extreme measures have been cited by South Africa as evidence of genocidal intent. Israel counters that isolated statements do not represent state policy, and that the proper characterisation of the conflict is a lawful (if imperfect) military campaign against a terrorist organisation. The ICJ’s final merits judgment, which will take years to deliver, will turn substantially on this factual and legal question.
Comparative and International Perspective
The Gaza proceedings invite comparison with prior ICJ and ICTY/ICTR jurisprudence on genocide. In Application of the Genocide Convention (Bosnia v. Serbia, 2007), the ICJ held that Serbia had not itself committed genocide at Srebrenica but had violated the Convention by failing to prevent genocide and punish perpetrators. The Court’s demanding approach to the specific intent requirement has been criticised as setting an almost unfalsifiable standard. In contrast, the ICTR consistently found genocidal intent in the Rwandan context through inference from the pattern of conduct, scale of killing, and official statements. The standard is not uniform, and the ICJ’s approach may be revisited as the Gaza proceedings progress.
The ICC proceedings against non-state actors (Hamas leaders) alongside state leaders are legally significant: they reinforce the principle that IHL applies symmetrically to all parties in an armed conflict regardless of their non-state status, and that the Hamas attacks of 7 October 2023 (which killed approximately 1,200 people, including deliberate targeting of civilians, hostage-taking, and sexual violence) themselves constitute grave international crimes.
The accountability asymmetry between powerful and weak states, however, remains the most structural problem in international criminal law. The ICC has primarily prosecuted leaders from African states, and while recent proceedings against Russian and Israeli officials represent important expansions of scope, the practical enforcement gap persists for states with powerful patrons.
India’s Position
India abstained in the UN General Assembly vote of October 2023 calling for a humanitarian ceasefire and in several subsequent resolutions. India’s explanation of vote emphasised India’s condemnation of terrorism and its call for the release of hostages, while also calling for the protection of civilian lives and humanitarian access. India did not join the group of states endorsing South Africa’s ICJ application, nor has it made any official statement on the merits of the genocide allegations.
India’s position reflects its complex relationships in the region: it has maintained warm relations with Israel, particularly in defence and technology cooperation, while also maintaining its traditional solidarity with the Palestinian cause at the UN and recognising Palestinian statehood. India’s domestic political context, including the current government’s ideological affinities and electoral considerations regarding Hindu nationalist sentiment, has arguably shifted the balance of India’s public statements toward greater sympathy for Israel’s security concerns. India’s abstention on IHL-specific resolutions is nonetheless notable given its claim to be a rule-of-law-oriented state committed to the UN Charter.
Practical and Policy Implications
The Gaza proceedings have significant implications for the future of international humanitarian law. If the ICJ ultimately finds that Israel violated the Genocide Convention, it will be the first time the Court has found a democratic state party to be in breach of the Convention. Such a finding would have far-reaching implications for IHL compliance monitoring and would reinforce civil society and state pressure to create stronger enforcement mechanisms. Conversely, if the Court applies its demanding specific intent standard and finds no genocide (while perhaps finding violations of IHL), critics will argue that the Convention’s protections are essentially non-operational in practice, because no state will ever openly proclaim genocidal intent.
The arrest warrants issued by the ICC for Israeli officials have already affected the diplomatic conduct of states parties to the Rome Statute, which are legally obligated to arrest warrant subjects who enter their territory. Several European states have indicated they would comply; others have been more ambiguous. This creates a further fragmentation of international legal obligations depending on political alliance.
Suggestions and Reforms
The accountability gap in international humanitarian law would benefit from several structural reforms. First, the creation of a mandatory independent international fact-finding and accountability mechanism for all armed conflicts with large-scale civilian casualties, modelled on the Syria Commission of Inquiry, would reduce the ad hoc and politicised nature of existing processes. Second, the UN Security Council’s use of the veto to block referrals to the ICC should be curtailed through political commitment (the “veto initiative” launched by the small islands coalition merits wider endorsement); until the Charter is amended, the accountability functions of the UNGA under the Uniting for Peace procedure are the most promising alternative.
Third, the threshold for provisional measures at the ICJ in IHL-adjacent cases should be clarified through revised procedural guidance, to enable faster protection orders where large-scale humanitarian emergency is imminent. The current process, while expedited by historical standards, still takes weeks to months during which mass casualty events occur.
India, as a non-permanent member of the Security Council in recent years and as a major troop-contributing country to UN peacekeeping, could exercise leadership in calling for consistent application of IHL enforcement mechanisms across all conflicts, reinforcing its claim to principled multilateralism.
Conclusion
The South Africa v. Israel proceedings at the ICJ, the ICC arrest warrants, and the broader international legal response to the Gaza conflict represent both the resilience and the limitations of international law in the face of a conflict that combines genuine military complexity with profound humanitarian catastrophe. The law is clear that civilians must be protected, that starvation is prohibited as a weapon, and that genocide must be prevented. What remains contested is whether the threshold for these prohibitions has been crossed, and whether the international legal system has the institutional capacity to answer that question in a credible and timely way. The accountability gap, structural and political in origin, will not be closed by litigation alone. It requires the political will of major powers to subject themselves and their allies to the same legal standards they demand of others.
