Obvinenie štátu Izrael zo zločinu genocídy

Cieľom tohto príspevku je preskúmať možnosť naplnenia skutkových podstát zločinu genocídy vo vojne v Gaze v období od októbra 2023 do marca 2024 a odpovedať na výskumnú otázku: Za akých okolností by je možné zvážiť zodpovednosť štátu Izrael za zločin genocídy? Podľa autorky by to teoreticky bolo v prípade, ak by ICJ bez akýchkoľvek pochybností preukázal úmysel štátu Izrael spáchať genocídu a zároveň by sa zistila súvislosť medzi konaním jednotlivcov, ktorí genocídu spáchali, a štátom Izrael. Príspevok je zameraný ako exploračný prehľad a úvodná analýza živého a prebiehajúceho ozbrojeného konfliktu medzi Štátom Izrael a Hamasom z právneho hľadiska. Prvá kapitola je zameraná na definíciu trestného činu genocídy v súlade s medzinárodným právom. Druhá kapitola je prehľadom hlavných bodov žiadosti Juhoafrickej republiky a rozhodnutí Medzinárodného súdneho dvora o dočasných opatreniach z 26. januára 2024 a 28. marca 2024. Tretia kapitola skúma správanie štátu Izrael v pásme Gazy v pásme Gazy v kontexte Dohovoru o genocíde. Táto analýza sa vykonáva v súvislosti s dvomi skúmanými „prípadmi genocídy“ v Bosne a na Ukrajine.

Key words: genocide, ICJ, Israel, Hamas, Gaza, South Africa

Kľúčové slová:  genocída, ICJ, Izrael, Gaza, Hamás, Juhoafrická republika

Introduction The “accusation” of the State of Israel from committing international crimes against the Palestinians has echoed in reports and statements of several international non-governmental organisations.[1] The conduct of the State of Israel assessed as a lack of protection of the human rights of the Palestinian population was expressed by the current UN Secretary General,António Guterres,[2] as well as his predecessors. The UN High Commissioner for Human Rights, Volker Türk, has been similarly critical of Israel’s actions.[3] International Court of Justice in its advisory opinion from 2004 expressed that Israel has violated the obligations of the occupying state stemming from the Fourth Geneva Convention by constructing a wall around and inside the territory of West Bank.[4] Israel has also been strongly criticised for the blockade of the Gaza strip since 2005. In the last two years, the opinion that the State of Israel has been committing the crime of apartheid against the Palestinians was expressed in the reports of Human Rights Watch, Amnesty International as well as in the reports of multiple national non-governmental organisations (such as B’Tselem, Badil Resource Center or Adalah).[5]There was announced opening of the preliminary investigation over alleged international crimes committed in the Occupied Palestinian territory since June 13, 2014 (with no end date) by the prosecutor of the International Criminal Court (ICC).

The opinions that Israel has been violating international law in various ways and the frequency of their expression significantly increased in connection with the Israeli military operations in the Gaza strip. The large-scale air, land as well as sea operation was launched following the attack of Hamas with participation of Palestinian Islamic Jihad on October 07, 2023. There were adopted several resolutions by the UN General Assembly and Security Council referring to many aspects of this war. On December 29, 2023, South Africa filled in the Registry of the International Court of Justice (ICJ) an Application Instituting Proceedings against the State of Israel concerning alleged violations under the Genocide convention in the Gaza Strip (hereinafter “South Africa’s Application”).

The aim of this paper is to examine the possibility as well as conditions of fulfilment of the constituent elements of the crime of genocide in the defined events of the war in Gaza (i.e. in the period from October 2023 to March 2024) and to answer to the research question phrased as follows: Under what circumstances would it be possible to consider the responsibility of the State of Israel for the crime of genocide? Structure of this paper corresponds with this aim. The first chapter is focused on the definition of the crime of genocide in accordance with the international law. The provisions of the Genocide Convention and the Rome Statute are included. The second chapter is the overview of main points of the South Africa’s Application and the ICJ orders on provisional measures from January 26, 2024, and March 28, 2024. The third chapter is structured into 4 sections. The first section explains how the association of genocide with Israel’s actions evolved. It also identifies two main categories which became ground of the South Africa’s Application. Those are the “alleged intention of the Israeli representatives to commit genocide in Gaza” and “the conduct of the Israeli operations which was interpreted as genocide” by South Africa. In this (as well as in the fourth) section, media sources are used for the purpose of legal analysis. The media sources are used because the detailed reports submitted by the parties to the International Court of Justice were not published at the time this manuscript was completed. The Court neither issued any official report which included at least part of these documents. The second section is a summary of the assessment of the legal issues of the genocide in Bosnia based on the decision of ICJ of 2007. The third section is a summary of selected insights on alleged genocide in Ukraine based on the Ukrainian submission at ICJ of 2022 and the judgement of the ICJ of 2024. The attention was paid in this matter to two things, the question of abusing the process, and the obligation of the state to prevent genocide from happening. The fourth section strives to examine the conduct of the State of Israel in the Gaza strip in the context of the Genocide Convention. This analysis is made also in connection with the two examined “genocide cases”, Bosnia and Ukraine. This part strives to formulate opinions which are a base for response to the research question. The conclusion summarises the findings of this paper and answers the research question. This paper cannot respond whether there has been committed crime of genocide as a result of Israel’s conduct in the Gaza Strip, and whether Israel is held responsible for breaching the obligations stemming from the Genocide Convention. This answer might be given most probably by the ICJ in the future. Until that happens, it might be possible, as well as desirable to deal with this question at the academic level.

1. Definition of genocide.

The definition of the crime of genocide can be found in two main sources. First, in the UN Convention which was originally adopted as a General Assembly resolution 260 A (III) in 1948 and as multilateral international convention it entered in