[Update 2: On 21 November 2024, ICC Pre-Trial Chamber I issued arrest warrants against Hamas and Israel’s leadership in a groundbreaking step for legal accountability. Among the extremely serious crimes that the Chamber found reasonable grounds to believe have been committed by Benjamin Netanyahu and Yoav Gallant, is the crime against humanity of persecution:
“The Chamber also found reasonable grounds to believe that the abovementioned conduct deprived a significant portion of the civilian population in Gaza of their fundamental rights, including the rights to life and health, and that the population was targeted based on political and/or national grounds. It therefore found that the crime against humanity of persecution was committed.”
This very significant legal determination by ICC judges – as with the legal findings made by the ICC Prosecutor’s Office in May 2024 – fully corresponds with the careful findings of the comprehensive independent legal opinion specifically addressing the crime against humanity of persecution which LPHR submitted to the ICC Prosecutor’s Office in January 2024.]
[Update 1: On 20 May 2024, the ICC Prosecutor, Karim Khan KC announced he had made an application for arrest warrants against Hamas and Israel’s leadership. Among the exceptionally serious crimes alleged by his Office against Israel’s Prime Minister, Benjamin Netanyahu, and Israel’s Defence Minister, Yoav Gallant, is the crime against humanity of persecution. This corresponds with the careful findings of the comprehensive independent legal opinion which LPHR submitted to the ICC Prosecutor’s Office in January 2024.]
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PDF of Independent Legal Opinion by eminent experts: Does the closure of Gaza constitute the crime against humanity of persecution? (dated 5 December 2022, 159-pages long, and submitted to the Office of the Prosecutor of the International Criminal Court)
PDF of Addendum to Independent Legal Opinion: Do the legal elements of the crime against humanity of persecution continue to be met in respect of the intensified closure of Gaza imposed after 7 October 2023? (dated 16 January 2024, 51-pages long, and submitted to the Office of the Prosecutor of the International Criminal Court)
PDF of LPHR Statement (dated 24 January 2024, and can be read directly below)
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Today, the UK legal charity, Lawyers for Palestinian Human Rights, (LPHR), publishes a landmark independent legal opinion by an eminent team of legal experts that finds the closure of Gaza since 2007, including its intensification since 7 October 2023, to constitute the crime against humanity of persecution committed against Gaza’s Palestinian population, including over 1 million children.
The defining features of this crime – considered the quintessential crime against humanity – are (i) there has been a severe deprivation of fundamental human rights, and (ii) this harmful deprivation is discriminatory against a protected group. The crime of persecution concurrently reduces a person to their membership in or identification with a protected group, and attacks the group itself.
Four specialist international criminal and human rights law practitioners and/or academics – Juan Mendez, Megan Hirst, Nikila Kaushik and Lauren Tipton (short biographies below) – with no background on Palestine/Israel, were instructed in 2021 by LPHR to prepare an intentionally technical legal opinion that specifically assesses whether or not the closure of Gaza constitutes the crime against humanity of persecution.
LPHR asked that the legal opinion address all possible justifications for the closure of Gaza. The work was undertaken on the basis that full payment be made irrespective of its legal conclusions.
The 210-page legal opinion was completed in two phases: a 159-page legal opinion (completed 5th December 2022) on the closure of Gaza since 2007, and a 51-page addendum (completed 16th January 2024) to the legal opinion that covers the intensified closure of Gaza since 7 October 2023. Together they provide vital and ample legal clarity for accountability and policy decision-makers.
The initial 159-page legal opinion finds that “despite contributions from others, the closure is overwhelmingly implemented by Israel.” Applying the law relevant for cases brought before the International Criminal Court (ICC) or under universal jurisdiction – and using the appropriate standard of proof adopted by the ICC in deciding whether to investigate – it concludes:
“480. Based on the above analysis, we have concluded that there is a reasonable basis to believe that the closure constitutes the crime against humanity of persecution.
481. We consider that all material elements of the crime are met. In the light of Israel’s statements and conduct, we also consider it probable that at least some individual officials within Israeli state institutions possess (or have possessed) the required mental elements.
482. We have also concluded that no defences apply so as to justify the closure and render it lawful. Excuses, which relate to the mental state of an individual accused, would need to be decided by reference to a specific accused.
483. We consider that this is the position under the Rome Statute, but also under customary international law.”
The 159-page legal opinion was confidentially submitted by LPHR to the Office of the Prosecutor of the ICC on 10 January 2023. Its release into the public domain was paused to enable sufficient space for the Office of the Prosecutor of the ICC to carefully consider the legal opinion.
The mass atrocities by Hamas and other Palestinian armed groups against Israelis on 7th October 2023, followed by Israel’s massive military response – including its 9th October order of “total siege” on Gaza – prompted LPHR to ask the independent legal experts to provide a supplementary opinion that specifically examines whether the events of and since 7 October 2023 alters their assessment.
Their 51-page “addendum”, covering the period of 7th October 2023 to early January 2024, has also been submitted by LPHR to the Office of the Prosecutor of the ICC. Its final paragraph concludes:
“153. Based on the analysis above, we remain of the view that there is a reasonable basis to believe that the closure constitutes the crime against humanity of persecution, including in its recent intensified form. We do not find any basis to believe that it is rendered lawful by any available defence.”
LPHR encourages wide readership of this landmark legal opinion and addendum addressing whether the closure of Gaza, including its intensification since 7 October 2023, constitutes the crime against humanity of persecution.
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Accountability and policy implications: action is imperative and a clear warning for the future
For accountability decision-makers: LPHR considers that the legal opinion and its addendum necessarily compels the prompt investigation and effective prosecution of individuals responsible for the closure of Gaza, including its intensification since 7 October 2023, on the basis that it plainly constitutes the crime against humanity of persecution.
LPHR specifically notes the relevance of the legal opinion’s findings with ICC Prosecutor Karim Khan KC’s key policy to prioritise ensuring accountability for crimes against or affecting children. Approximately half of Gaza’s population of over two million are children. LPHR does not expect ICC Prosecutor Khan to arbitrarily exclude Palestinian children from his signature prosecutorial policy.
LPHR also emphasises that although the legal opinion specifically focuses on whether the closure of Gaza constitutes the crime against humanity of persecution, this does not preclude other possible – and co-existing – legal characterisations. The addendum to the legal opinion clarifies:
“Our focus on the crime against humanity of persecution should not be interpreted as implying any view regarding the (un)availability of other legal characterisations (for example, of genocide). We have not analysed those questions and therefore take no position on them.”
It is relevant here to note that the crime of persecution is very gravely recognised as a precursor to the potential or actual commission of the crime of genocide. For example, the International Court of Justice, in its January 2020 order of provisional measures against Myanmar in a Genocide Convention case, cites the linkage made by the relevant UN Fact-Finding Mission [emphasis added]:
“The Fact-Finding Mission concluded that “on reasonable grounds… the factors allowing the inference of genocidal intent [were] present”… the Court further notes that the Fact-Finding Mission, in its 2018 detailed findings, also asserted, based on its overall assessment of the situation in Myanmar since 2011, and particularly in Rakhine State, that the extreme levels of violence perpetrated against the Rohingya in 2016 and 2017 resulted from the “systemic oppression and persecution of the Rohingya”.” [paragraph 55]
Inextricably-linked serious international crimes prior to and since 7 October 2023, should not, and cannot, be divorced from each other by ICC Prosecutor Khan, when undertaking his responsibility of delivering legal accountability. As recognised by then UN Secretary-General Ban Ki-moon in a landmark UN report, published in 2014, on preventing atrocity crimes [emphasis added]:
“Atrocity crimes take place on a large scale, and are not spontaneous or isolated events; they are processes, with histories, precursors and triggering factors which, combined, enable their commission.”
LPHR strongly encourages the ICC Prosecutor to fulfil his exceptionally significant duty to investigate and prosecute all present and past serious international crimes in Israel/Palestine, with a necessary leap-forward in prioritisation and pace by his Office, and without fear or favour.
For policy decision-makers: The grave findings of the independent experts legal opinion and addendum provide added legal clarity to bolster the “demand” within UN Security Council resolution 2720 (22 December 2023) that the parties “allow, facilitate and enable the immediate, safe and unhindered delivery of humanitarian assistance at scale directly to the Palestinian civilian population throughout the Gaza Strip.”
The legal opinion further provides an implicit clear warning that the future of Gaza must not amount to an effective return to the status quo of indefinitely prolonged closure that existed pre-7 October 2023. The crime of persecution against the Palestinian population of Gaza must end: its devastating effects are profoundly beyond measure, and acutely appal the conscience of humanity.
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Authors of Independent Legal Opinion and its Addendum
Juan Mendez is the former UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (2010-16). He has also previously been Special Advisor to the ICC Prosecutor, Special Advisor to the UN Secretary-General on the Prevention of Genocide, Co-Chair of the International Bar Association Human Rights Institute, and President of the International Centre for Transitional Justice. He is currently Professor of Human Rights Law at Washington College of Law and an Academic Expert at Doughty Street Chambers.
Megan Hirst is a barrister at Doughty Street Chambers. She is the former International Civil Party Lead Co-Lawyer at the Extraordinary Chambers in the Courts of Cambodia and has represented victims in several proceedings before the ICC.
Nikila Kaushik has recently been an associate lecturer at the University of Sydney and previously worked at the Extraordinary Chambers in the Courts of Cambodia and at the ICC. She is undertaking pupillage at Doughty Street Chambers.
Lauren Tipton is a legal consultant who has worked with the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia.
[PDF of Legal Opinion on Gaza Closure] [PDF of its Addendum] [PDF of Statement]