In the face of the mounting humanitarian crisis in Gaza, Egypt and its people have taken a principled stand, rejecting the massacres being carried out against the Palestinian people in the Gaza Strip by Israeli forces.
They have stood up for the Palestinians from the moment it became clear that the Israeli response to the Hamas attack on 7 October had escalated on a tragic scale and assumed a genocidal character, causing the loss of countless lives, predominantly of women and children, through the deliberate bombardment of civilian infrastructure, including hospitals, schools, and places of worship.
The massive death and destruction being wrought by the Israeli occupation forces have exceeded all bounds to the “right to self-defence” that Israel and its backers harp on about. The atrocities being committed under that pretext are nothing less than crimes under international law, most notably the deliberate murder of civilians, the use of internationally banned weapons, and the forcible transfer of a civilian population.
I was particularly struck, as was the Egyptian political leadership, by the deliberate deception Israel has used to carry out these crimes. This is known as the crime of “perfidy” in international law, which differentiates between permissible ruses of war and perfidious deceptions that conceal the intention to perpetrate violations of international humanitarian law.
Article 37 of the Protocol Additional to the Geneva Conventions of 1949 relating to the Protection of Victims of International Armed Conflicts defines perfidy as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”
We have seen perfidy in action in Gaza when the Israeli occupation forces ordered the civilian population in the northern part of the Strip to flee southwards to avoid the bombing, only to subject the people who had just been displaced to the south to further bombardment.
Moreover, the shelling has targeted the places international relief agencies had set up to shelter the displaced civilians, displacing them again to other parts of Gaza. Additionally, the mental health trauma suffered by the civilian population, especially women and children, caused by the knowledge that nowhere in Gaza is safe, is unimaginable, and a method of forcible deportation and transfer.
Many humanitarian organisations have warned that civilians in Gaza have nowhere safe to go. In his briefing to the UN Security Council on 30 October, Palestinian Refugee Agency (UNRWA) Commissioner-General Phillipe Lazarrani said that “too many people have been killed and injured whilst seeking safety in places protected by international humanitarian law.”
From a legal point of view, the forcible transfer of a civilian population entails the deliberate displacement or relocation of it from the places in which it lawfully resides by means of military force or other forms of violence, threat, or deception, without grounds under international law.
Civilian populations under occupation enjoy a special set of protections under international humanitarian law. Undoubtedly, subjecting a civilian population to a blockade that imposes cruel and inhuman living conditions and the destruction of the health infrastructure that has led to the collapse of the healthcare system in Gaza can constitute a method of forcible deportation and transfer. All these atrocities confirm the existence of the criminal intent required by international criminal law.
I was deeply moved by a televised interview with a recently displaced man in Gaza who said he was forced to distribute his children among different families to ensure that not all of them died. The testimonies and evidence lend weight to the suspicion that a campaign of ethnic cleansing is being carried out in Gaza.
FORCIBLE TRANSFER: Under international law, the deportation or forcible transfer of a civilian is a serious international crime.
According to international jurisprudence, deportation is the relocation of a population outside the borders of a state, while forcible transfer is the displacement of a population from the area they reside to another area or areas within the geographical boundaries of the state in question using coercive means, be they military actions or preventing access to food and other necessities.
The international legal prohibition of these criminal acts aims to uphold the right of all peoples and groups to live in their homes and communities and enjoy their property in safety.
In the light of the above considerations and the impacts of forcible transfer on the lives of the civilian population in Gaza, the Egyptian Foreign Ministry released an official joint statement along with the foreign ministers of a number of Arab states following the Peace Summit that was held in Cairo on 21 October strongly condemning the targeting of civilians and civilian targets in Gaza.
The statement also condemned the acts of forcible individual and collective displacement and the policy of collective punishment being carried out by the Israeli occupation forces.
The Arab foreign ministers in their statement further denounced all attempts on the part of the occupation power to eliminate the Palestinian cause at the expense of the Palestinian people and the peoples of other states in the region or to expel the Palestinians from their land in any manner, which would constitute a grave violation of international humanitarian law.
They stressed the need to commit to ensuring full respect for the Geneva Conventions of 1949, including the provisions regarding the responsibilities of the occupying power.
At the top of the need to protect Palestinian civilians, the ministers’ statement underscored the “importance of the immediate release of civilian hostages and detainees, and to ensure they are treated in a safe, dignified and humane way, in compliance with the principles of international law.”
It stressed that the right to self-defence enshrined in the UN Charter does not justify flagrant violations of international law and international humanitarian law or the deliberate disregard for the rights of the Palestinian people, including the right to self-determination and to end the decade-long occupation.
The care the Arab foreign ministers took to ground their statement on a solid legal basis lent weight to their appeal to the international community to apply the provisions of international humanitarian law to all without discrimination. They rightfully observed that “negligence in calling out flagrant violations of humanitarian law for what they are is tantamount to giving a green light to the continuation of such practices and even a form of complicity in their perpetration.”
The statement issued a stern warning to the powers that back the Israeli occupation forces in their genocidal war against the Palestinians that they, too, could be held accountable for the crimes.
PROTECTING CIVILIANS: Following through on these efforts, the Arab Group at the UN succeeded in passing a resolution during the UN Tenth Emergency Special Session on October 27 titled “Protection of Civilians and Upholding Legal and Humanitarian Obligations” to address the “illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory.”
The UN General Assembly was convened under the “Uniting for Peace” rule that allows it to convene such a session in cases where the Security Council is unable to reach an agreement, due to veto powers, regarding a matter that threatens international peace and security. Its resolution called for “an immediate, durable and sustained humanitarian truce leading to a cessation of hostilities” and demanded “the immediate, continuous, sufficient and unhindered provision of essential goods and services to civilians throughout the Gaza Strip.”
An important clause of the resolution, relevant to our discussion here, “firmly rejects any attempts at the forced transfer of the Palestinian civilian population.”
The drafters of the text exhibited their astuteness in the call for “the rescinding of the order by Israel, the occupying power, for Palestinian civilians and United Nations staff, as well as humanitarian and medical workers, to evacuate all areas in the Gaza Strip north of the Wadi Gaza and relocate to southern Gaza,” after which it detailed how the Israeli order violates international humanitarian law.
This was balanced by the call for “the immediate and unconditional release of all civilians who are being illegally held captive” and demanded “their safety, well-being and humane treatment in compliance with international law.”
The resolution was adopted with 120 votes in favour, 14 against, and 45 abstentions. The result reflects the overwhelming majority view in the international community regarding the need to uphold the principles and provisions of international humanitarian law and, above all, the prohibitions against collective punishment, targeting civilian targets, blocking access to humanitarian aid and relief, and the forced transfer and deportation of civilian populations.
Israel did not comply with the resolution. This was to be expected as the hawks of war and destruction in that country care little about international law and remain set on their plans to liquidate the Palestinian cause by targeting Palestinian civilians to force them to leave their land. The Egyptian leadership, backed by Egypt’s citizens and army, will not let those plans come to fruition.
In another deplorable act, on the very day the aforementioned UN resolution was adopted, Israel stepped up its systematic bombardment of Gaza. The following day, on 28 October, Egypt, in a sternly worded Foreign Ministry statement, warned of the humanitarian and security repercussions of an Israeli occupation forces’ ground incursion into Gaza.
The statement stressed that it held the Israeli authorities responsible for the breach of the UN General Assembly Resolution of 28 October calling for an immediate ceasefire, the implementation of a humanitarian truce to save civilian lives, and the unimpeded entry of humanitarian aid into Gaza. It stressed, again, that the actions of the Israeli occupation forces in Gaza are in flagrant violation of international law and international humanitarian law.
The Egyptian efforts to address the appalling humanitarian situation in Gaza demonstrate the Egyptian authorities’ appreciation of the legal aspects surrounding the Israeli aggression. Indeed, the legal framework of international criminal law is in full alignment with Egypt’s efforts.
Article 7, Paragraph 1, of the Rome Statute of the International Criminal Court (ICC) lists the deportation and forcible transfer of population as a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” This is precisely what is unfolding in Gaza right now.
As the Rome Statute explains in the following paragraph, deportation, or forcible transfer of population “means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”
Article 49 of the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War states that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”
The Rome Statute adopts the same principle in Article 8, Paragraph 2 (b) (viii), which includes the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory” as a war crime.
According to the ICC Pre-Trial Chamber in the Ruto, Kosgey, and Sang Case, “in order to establish that the crime of deportation or forcible transfer of population is consummated, the Prosecutor has to prove that one or more acts that the perpetrator has performed produced the effect to deport or forcibly transfer the victim. The term “forced” may include physical force, as well as the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression, or abuse of power, or the act of taking advantage of a coercive environment.”
The blockade of Palestinian towns and cities and the deliberate starvation of civilians as a means of war by deliberately depriving them of objects indispensable to their survival is a war crime under Article 8 (b) (xxv) of the Rome Statute. This includes “wilfully impeding relief supplies as provided for under the Geneva Conventions.”
GENOCIDE: Deportation or forcible transfer may also constitute a crime of genocide under Article 6 of the Rome Statute.
The article is founded on the provisions of the UN Convention on the Prevention and Punishment of the Crime of Genocide of 1948. Article 6 of the Rome Statute includes as an act of genocide “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
The Israeli unlawful acts can also constitute a crime of extermination, which is the reflection of the genocidal intent, as a crime against humanity under the Rome Statute in Article 7 (1) (b), beneath the heading “extermination”. Article 7 (2) (b) defines extermination as “the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.” As has been widely reported, this is one of the violations of international humanitarian law being perpetrated by the Israeli occupation power against Palestinians civilians.
On 26 October, the Palestinian Ministry of Health released a report documenting “the names of the martyrs” who were killed as the result of the Israeli aggression against Gaza from 7 to 26 October. It lists 6,747 names, among which are 2,665 children, along with their official ID numbers. These include 2,665 children.
The list does not include 281 bodies that had not been identified. At the time of writing, over 10,000 civilians have been killed, including more than 4,000 children. Hence, it was not surprising that on 6 November, UN Secretary-General António Guterres warned that the bombarded Gaza Strip was becoming a “graveyard for children”.
Yet, for the Israeli military machine, this is not enough. It persists with its campaign of bombardment and murder, heedless of the warning of the UN High Commissioner of Human Rights that continued military operations in Gaza could cause thousands more civilian deaths. This may help to explain the tenor of the UN secretary-general’s statement on the situation in Gaza on 28 October, in which he said that, despite the growing international consensus on the need for a humanitarian pause, “I was surprised by an unprecedented escalation of the bombardments and their devastating impacts.”
The international community has collectively condemned the vicious acts Israel is committing in Gaza. As explained above, such crimes include the widespread and systematic forcible transfer of a large portion of the Palestinian population from northern to southern Gaza. This is being carried out with premeditated deliberation in accordance with the Israeli policy of extermination of the Gaza population. This extermination or genocidal intent could be easily inferred from recent hateful expressions of Israeli ministers and political leaders.
According to international law, all those responsible for perpetuating these crimes, from planners to executioners, are accountable under international criminal law. Moreover, based on the Rome Statute’s provisions regarding individual criminal responsibility, the heads-of-state who have aided, abetted, or otherwise assisted the commission of these crimes should also be held accountable before the competent criminal courts. If they are not, history will certainly judge them for their collusion.
Having demonstrated some of the ways Israel has breached international law and the customs of war more brazenly than ever in the current war in Gaza, I can only say I am proud to be a citizen of Egypt where one of the historical hallmarks of its army is its respect for the laws and customs of war. This respect stems not only from its reverence for international laws and conventions, but also from its religious cultures that call for mercy and tolerance even for enemies.
Testimony to this is to be found in the comportment of the Egyptian Armed Forces in all the wars they have fought over the years and in how Egyptian soldiers treat prisoners of war and civilians in accordance with the rules and norms of warfare.
The Israeli occupation forces have displayed the very antithesis to this in the wars they have fought against the Arabs and recently against the civilian population in Gaza. It is to be hoped that the international community will take firm action to halt the Israeli practices of targeting hospitals, schools and places of worship, and the mass murder of civilians.
As the UN secretary-general correctly mentioned in his latest statement, “the nightmare in Gaza is more than a humanitarian crisis. It is a crisis of humanity.”
The writer is a Senior judge and an expert in international criminal law.
* A version of this article appears in print in the 9 November, 2023 edition of Al-Ahram Weekly
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