The resolution of the UN Independent International Commission that concludes that it marks a turning point, with implications also for the rest of the countries.
What supposes the commission to qualify as a genocide?
The Commission was established by the UN Human Rights Council, which is the most important human rights body of the United Nations. It works as a mechanism of truth and accountability, whose objective is to document crimes independently so that other organs can act judicially.
Although it is not a strictly binding body, according to Efe Ana Manero, a professor of Public International Law and International Relations of the Carlos III University of Madrid, it is an “authorized interpretation, which clarifies the legal framework.”
Determining that genocide is committed, adds the expert, assumes that there is a violation of an imperative norm of international law, which generates obligations for other states. Among them that of not providing help to maintain the situation.
The obligations derive precisely from the violation of these norms, and the recommendations of the Commission, which point among others to the cessation of weapons or defensive material that can be used in these operations, start from the verification of said violation.
How important is the decision?
When there is evidence that a country is violating its international obligations, states and organizations with competition must stop attending the State that commits these violations.
He could stop Israel with binding resolutions, but its paralysis due to the veto policy of the United States makes it difficult to take general coercive measures. This does not prevent countries from adopting decisions based on the report, such as embargoes or the breakdown of diplomatic or commercial relations.
In theory, according to María de los Ángeles Ruiz, Professor of Public International Law and International Relations at the Complutense University of Madrid, “after the decision of the Commission, the Security Council should adopt the relevant measures to pacify the affected area.”
The report is important because, in the opinion of a manero, it can serve as the basis for the courts and other states. Thus, it could facilitate that the Prosecutor’s Office of the International Criminal Court broadens the foundations on which it bases its arrest warrant against Israeli Prime Minister, or against former Minister of Defense Yoav Galant.
Montserrat Abad, a professor of International Law at Carlos III, emphasizes that the ruling of the commission “increases political, diplomatic and legal pressure”, strengthens judicial processes in progress and aim at previous assertions issued by organisms linked to the UN.
Why does your voice have weight?
It had dictated precautionary measures in 2024 and ordered Israel to take actions aimed at preventing acts that could constitute genocide, while the Prosecutor’s Office of the International Criminal Court has referred to possible crimes of war and against humanity and the possibility of genocide, but have not issued a final statement in this regard.
The conclusion of the commission, according to Manero, constitutes a “significant advance”, being an entity established by the UN Human Rights Council, which is the main organ of the United Nations responsible for the promotion and protection of human rights in the world.
The consensus on the perpetration of genocide in Gaza, adds Ruiz, “seems to be evident through this decision.”
The definition of genocide
The CIJ, the highest UN Court, is in an intermediate phase of a procedure initiated in December 2023 by South Africa, which accuses Israel of violating the convention, but this court does not carry out its own investigations on the ground, as the CPI would do, but also examines the arguments and evidence that the states present in a litigation.
In a preliminary phase of the process, South Africa requested urgent precautionary measures to demand the Israeli government to protect the Palestinian civilian population.
In January 2024, the CIJ partially accepted the application by considering that “there is a real and imminent risk of irreparable damage” to the rights of the Palestinians and accepted that the right of the Palestinian people in Gaza was “plausible to be protected against acts of genocide”, without ruling if those acts effectively constitute genocide.
The Court then ordered Israel to adopt “immediate and effective” measures to prevent genocide acts and guarantee the entry of humanitarian aid to Gaza.
Since then, the Court has issued new precautionary orders in response to the evolution of the offensive in Gaza, without entering the bottom of the case.
South Africa delivered in October 2024 his written memory with the main arguments and evidence, and now Israel has until January 2026 to present his own.
The new UN Commission report can reinforce the arguments of South Africa, but the ICJ will evaluate its probative value within the procedure on the fund, whose resolution could take years.
The court will only issue a definitive ruling after analyzing not only documents such as this, but also verifiable evidence, testimonies and allegations of both parties. For now, there is not even a date for public audiences in which the parties will defend their arguments.
War and humanity crimes
The CPI, meanwhile, investigates since 2021 possible war crimes and humanity committed by both Israel and Hamas in the occupied Palestinian territories, which includes the current situation in Gaza.
This court, which is governed by the Rome Statute, does seek individual responsibilities, but must verify the evidence independently.
The new report of the UN Commission does not exonerate the ICC Prosecutor’s Office to gather direct and verifiable evidence, but can provide context to sustain the investigations, as it points to patterns of attacks, blockages, displacements and statements and acts of high Israeli leaders that could be interpreted as incitement or execution of genocide crimes.
Last November, the ICC already issued arrest orders against three leaders of Hamas (all deceased since then) and against the Israeli Prime Minister and his former Minister of Defense, for war crimes and against humanity in Gaza, but did not include for now the position of genocide, considering the evidence on other crimes.
These arrest orders have revived the debate on the independence of the court against the great powers, after the reaction of the United States, which imposed sanctions on the prosecutor Karim Khan and several judges, and the political pressure on the court increased, which already faced similar tensions when he tried to investigate possible war crimes in Afghanistan, or issued the arrest warrant against the Russian president, Vladimir Putin In Ukraine.
Therefore, while the ICJ evaluates the responsibility of the State of Israel under international law, the CPI analyzes whether there are evidence to process concrete individuals.
In both courts, the great challenge remains to demonstrate the specific intention to destroy, in all or part, to the Palestinians, a key requirement to legally qualify the facts as a genocide.
What is the way to follow?
The road is the rigorous compliance with international law, the representative of the Complutense continues.
“At this point in the Israel conflict, international responsibility for committing crimes against humanity must be assumed, such as genocide; cease to breach; repair the serious damage caused, including the restitution of the Palestinian territories to Palestine; be the object of sanctions and reprisals and include in these sanctions of return to states that support their proceeding.”
And from a judicial level, Ruiz concludes, “declare and punish those directly responsible for these acts against humanity.”
