Irreversibility matters because it eliminates the argument that third states supporting Israel can separate legitimate security facilitation from unlawful practices. Once you sustain an administration that kills through racially segregated courts, you cannot claim you only support the lawful parts.

This is where the state responsibility doctrine becomes critical. Because the ICJ characterised the right to self-determination as a peremptory norm (paragraph 233 of the AO), Israel’s continued presence constitutes a serious breach engaging the customary duties codified in Article 41(2) of the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA): no state may recognise the resulting situation as lawful, nor render aid or assistance in maintaining it. The European Union’s (EU) Foreign Affairs Council’s (Council) 21 April 2026 decision not to suspend the EU-Israel Association Agreement is where these questions become concrete. This decision followed the EU’s External Action Service finding Israel in breach of the Agreement’s human rights clause (Article 2) and the enactment of the March statute.

How State Killing Makes the Apparatus Irreversible

To understand why irreversibility changes the legal calculus, it is necessary to examine what the ICJ found and how the statutes operationalise it. At paragraph 229 of its AO, the Court identified a structure: Israel’s laws “impose and serve to maintain a near-complete separation” between settlers and Palestinians, violating the prohibition on apartheid in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

The Death Penalty for Terrorists Law makes that bifurcation lethal through differential jurisdiction. Article 3 establishes mandatory death by military court for Palestinians who cause death in acts of terrorism, excluding Israeli citizens or residents. Israeli citizens face civilian courts where Article 6 imposes death only for killings to negate the existence of the State of Israel. Human Rights Watch and Amnesty International documented that Palestinian residents face mandatory death in military courts, whilst Israeli citizens face death only for a narrowly defined intent that functionally excludes nationalist killings of Palestinians.

The military courts administering death operate with a 99.7% conviction rate, based largely on torture-extracted confessions. These conviction rates matter because they demonstrate the courts are not impartial tribunals but components of the apparatus the ICJ found unlawful. When the United Nations’ Committee on the Elimination of Racial Discrimination (CERD) stated that the law perpetuates racial discrimination, it confirmed differential vulnerability to state killing along ethnic lines. Administrative detention was theoretically reversible. State-administered execution is not.

When Third State Support Breaches the Duty of Non-Assistance

The duty of non-assistance requires no proof of complicit intent. At paragraph 278 of its AO, the Court held that the duty of distinguishing dealings with Israel between its own territory and the OPT encompasses, among other obligations, the duty “to abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory,” and “to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation.” The Court’s phrase “may entrench” establishes a probabilistic standard. States need not prove their conduct caused a specific harm, only that it sustains Israel’s administrative capacity.

The Court found Israel’s entire presence unlawful. There is no lawful administration to sustain. Arms, intelligence, and preferential trade that sustain capacity therefore sustain the wrongful situation, within which a death regime operates.

Unlike complicity under ARSIWA’s Article 16, which requires that assistance be given with knowledge and with a view to facilitating the wrongful act, the Article 41(2) duty covers conduct after the fact that maintains the unlawful situation, with the International Law Commission considering it “hardly conceivable” that a state would lack notice of a serious breach. Any residual doubt about notice dissolved when the CERD Committee called on States Parties to ensure that their “resources are not used to enforce or support discriminatory policies and practices against Palestinians living in the Occupied Palestinian Territory.” When the EU’s External Action Service found Israel in breach of Article 2 of the Agreement, and the Council nonetheless decided not to suspend, the Union placed itself squarely within the conduct paragraph 278 prohibits. Twenty UN experts stated that suspension is “a legal imperative,” not a matter of political discretion.

What This Reveals About Metropolitan Responsibility

The Council’s decision reveals how the ICJ’s “may entrench” standard operates as burden inversion. The question is whether conduct sustains the apparatus through which apartheid is maintained and death administered, not whether governments intend to facilitate it. Once the apparatus kills, separability collapses. The courts executing Palestinians are those that the ICJ found unlawful. International legal infrastructure has constituted settler-colonial projects in Palestine, not merely recognised them.

Article 41(2) asks when metropolitan support becomes co-constitutive of the wrongful situation. The answer: when it sustains administrative capacity that kills through racially segregated courts. This tests whether the duty of non-assistance retains doctrinal content or serves merely as a rhetorical cover for sustaining colonial structures.

The ruling

It is important to note that the current decision concerns the indication of provisional measures: it is preliminary and does not determine the merits of the allegations. Rather, the ICJ focuses on jurisdiction, standing, and the need for an indication of provisional measures.

Jurisdiction

In finding that it has jurisdiction, the ICJ’s reasoning has two stages. First, a dispute exists—prima facie—between South Africa and Israel about ‘the interpretation, application or fulfilment’ of the Genocide Convention [17]. As the source material shows, the parties have expressed clearly opposite views about whether there have been violations of the Convention.

Second, at least some of the acts and omissions alleged appear ‘capable of falling within the scope’ of the Convention [24],[30]. Importantly, the ICJ finds that Palestinians appear to constitute a distinct ‘national, ethnical, racial or religious group’ under Article II of the Convention [45]. Nevertheless, the ICJ is at pains to stress that it is not deciding whether alleged violations have in fact occurred. That is a question for a full hearing about the allegations’ merits.

Standing

Although not challenged by Israel, the ICJ also finds that South Africa has standing before the court—again, prima facie—to allege violations of the Convention [34]. Further analysis comes in Judge Xue’s declaration on the point.

Provisional measures

The ICJ then decides to use its power to indicate provisional measures. It holds that the requisite urgency exists, i.e. ‘a real and imminent risk that irreparable prejudice will be caused to the rights claimed’ before the court reaches its eventual decision about the merits [61].

The order

The judicial split

The ICJ makes one order, with six provisions. This order is not unanimous. Four of the provisions are by a majority of fifteen judges to two. The other two provisions are by a majority of sixteen judges to one.

The provisions

No provision mandates a ceasefire. Instead, the ICJ requires Israel to adhere to obligations that it already has under the Convention (and, arguably, under other norms of international law). The only additional requirement is for Israel to submit a report, within one month, on measures taken to give effect to the order.

Therefore, despite South Africa’s requests, the ICJ declines to order immediate suspension of military activity in Gaza. However, it never explains why (e.g [77]-[78]). This is unsatisfactory. Even at this early stage, there should be fair analytical engagement with South Africa’s requests. The ICJ’s failure might be pragmatic—perhaps the judges widely disagreed about a ceasefire or had arguments too disparate to bring together in the written order. But, by this failure, the ICJ does not fulfil an important function of a court: open, transparent reasoning. Opaqueness, though strategic, is frustrating. We are left guessing.

Issues ahead

This interim decision is unlikely to have major practical impact. On the one hand, the ICJ accepts most of South Africa’s submissions and gives little space to Israel’s reliance on self-defence. On the other hand, the ICJ stops short of granting South Africa’s most pressing requests. As such, neither party should claim victory.

The litigation will be lengthy. Going forward, one issue likely to dominate it is that of genocidal intent. The ICJ repeatedly refers to this issue. In dissent, Judge Sebutinde emphasises the absence of such intent, offering an autobiographical example. Meanwhile, in a separate opinion, Judge Barak agrees to the third and fourth provisions only on the basis that they may reduce tension and already represent the ‘DNA’ of Israel’s law and military [13]. Judge Barak finds that no genocidal intent exists, reasoning that the case is most appropriately analysed through international humanitarian law rather than the Convention.

On intent, we must be accurate when understanding the fabric of international criminal law. Genocide—the ‘crime of crimes’ (Akayesu (ICTR, 1998))—is made distinctive partly by its intent. The intent must be to destroy, in whole or in part, a protected group. As a matter of law, Israel may be committing war crimes, for instance, distinct from genocide. That doctrinal distinction may prove decisive in the litigation to come.

The crux of the issue lies in Meta’s Dangerous Organizations and Individuals (DOI) policy, criticised for banning vague speech categories on Facebook. The enforcement of this policy, as highlighted in the report, has led to the suppression of posts supporting major Palestinian political movements, hampering discussion on Israel and Palestine.

A Context-Sensitive Approach: Shifting from National Lists to ICCPR

While the report raises concerns about ambiguous wording of the policy [page 2], a more substantial issue, not directly addressed, is that Facebook crafted this policy in alignment with the US designated list of Foreign Terrorist Organizations (the “US list”). By aligning itself with that list, Facebook assumes a role akin to implementing policies that mirror the designations and restrictions outlined in the US list. This compromises its status as a neutral platform and subjects the platform to the dynamics of international politics, particularly through the creation and maintenance of the US list, thereby raising concerns about its impartiality in facilitating free speech on the open internet.

To address these concerns, a potential solution is to ground the DOI policy in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), thereby establishing speech restrictions based on a universal standard rather than relying on a specific country’s list. The Covenant’s inherent flexibility renders it well-suited for adoption by Facebook, as it would focus on establishing the conditions under which restrictions may be imposed, in contrast to the current practice of delineating specific content categories for restriction based on the US List.

For instance, in the current scenario, Hamas is listed as a terrorist entity in the US list, and relying on this designation has led, and may continue to lead, to the removal of posts related to this organisation. The HRW report, citing a report by Business for Social Responsibility, highlights an increased risk for Palestinians in Gaza, governed by Hamas, in inadvertently violating Meta’s policies due to potential associations or expressions of support [page 31]. Given Hamas’s status as the governing entity, any content linked to them—subjects naturally discussed by Palestinians—may be labelled as inflammatory, as demonstrated in instances mentioned in the report. This occurs even when the content itself may not inherently possess inflammatory characteristics and may be neutral in nature.

An ICCPR-based policy on the other hand could set conditions for content restriction, such as direct incitement to violence, hate speech, or genuine threats to public safety. This shift would be a move away from a rigid classification tied to a specific national list, allowing for a more context-sensitive application of content moderation. In any case, Facebook cannot block neutral content related to Hamas, as it did. This position is also confirmed by the Oversight Board’s (Meta’s appeal body responsible for reviewing content decisions) decision Shared Al Jazeera post.

This is not an unprecedented approach; the Oversight Board consistently applies Article 19 of the Covenant in every decision it renders. Should the tech giant disregard the practices set forth by its own Oversight Board, which are the result of extensive years of collaboration with civil society, such non-compliance would signify the company’s failure to fulfill the human rights obligations it earlier committed to in its Corporate Human Rights Policy.

Facebook’s Departure from Neutrality

In its routine operations, Facebook has consistently protected pro-Israel inflammatory content, disproportionately limiting neutral Palestinian voices. This departure from neutrality raises concerns. While Facebook attributes these actions to faulty algorithms, Meta cannot evade its human rights responsibility toward its users. In Delfi AS v Estonia [156-159], the European Court of Human Rights determined that even if an automatic filter based on words fails to effectively prevent objectionable content, it would still serve as sufficient justification for imposing liability on the service provider. Meta’s acknowledgment of reliance on a faulty algorithm does not absolve it of the obligation to safeguard human rights

Conclusion

Kate Klonick labels Facebook and its counterparts as “private, self-regulating entities,” evolving from mere platforms to governance systems with impactful content moderation rules. Considering Facebook has a control over global discourse, history will have its eyes on Meta’s actions, weaving a narrative where its decisions impact the delicate balance between freedom of expression and responsible governance. In this complex terrain, Meta must navigate with precision, recognising its influence extends beyond algorithms and platforms to shape the interconnected fabric of our world.

Want to learn more?

• Read: The ‘Facebook Supreme Court’ and Private Human Rights Adjudication
• Read: Holding Social Media Companies Accountable for Hate Speech in Times of Conflict and War: An Urgent Necessity
• Read: Israeli Settlements in Occupied Territories: Assessing ‘Continuing Crimes’ Against the Principle of Legality Before the ICC

A Grave Violation of Human Rights

History attests that violence towards women has often been weaponised in armed conflict; in particular, sexual violence against both women and children has been used consistently, including in recent conflicts. This issue reflects the double-edged violence faced by women during times of armed conflict – first, the violence inflicted on them that is also inflicted on men; and second, violence that is inflicted specifically because they are women. The latter represents one of the most brutal forms of patriarchal control, serving a two-fold purpose of humiliation and the assertion of male dominance. Such gendered violence aims to daunt the enemy by striking at what they consider to be their most vulnerable point.

In terms of the existing legal framework regarding the issue of women’s victimisation in conflict zones, Articles 7 and 8 of the 1998 Rome Statute (which established the International Criminal Court (ICC)) designate sexual violence committed during armed conflict within the lists of both ‘crimes against humanity’ and ‘war crimes’. The Statute came into force in 2002; however, acts of sexual violence were already prohibited by international humanitarian law, under Common Article 3 of the 1949 Geneva Conventions and Protocol II Additional to the 1949 Geneva Conventions. These provisions censure rape and other sexual violence committed as part of a widespread attack against a civilian population. They were further criminalised under the statutes of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.

Why the silence?

These instruments remained under-discussed, with the criminalisation of rape as a war crime often seen to have occurred only in the mid-2000s via the Rome Statute. This may be partly attributed to the fact that international law practitioners and scholars of the twentieth century were overwhelmingly male. Moreover, women’s experiences in armed conflict have typically been superseded by those of men, as both combatants and victims. As such, women are often subsumed within the category of male civilians, despite the fact that warfare impacts them in distinct ways, with their position being reduced to that of second class citizens in conflict situations. The Nuremberg Trials and Tribunal for the Far East in Tokyo demonstrate this persistent blindness to sexual violence and gendered warfare. Even today, prominent judicatures such as the ICC remain a “boys club” and suffer severe gender imbalance in terms of judicial representation. A lack of female judges only further feeds the silence, as it is often women prosecutors and judges who advocate against the violence women experience in conflict situations.

Consequently, despite the plethora of laws prohibiting such violence, women continue to be harmed with widespread impunity. Thus, the prosecution of such offences often only takes place within the context of prosecuting other related crimes. Presently, there is no ICC judgment convicting a perpetrator for committing rape as a war crime. The first ever conviction in 2016 of Jean-Pierre Bemba Gombo was widely applauded, but was then overturned just two years later.

Moving Forward with Reassessed Priorities

The responsibility to secure the safety of people who have been taken hostage in war is liable to be overtaken by retaliatory measures and the diversion of resources towards warfare. As conflicts continue and more atrocities are publicised, bringing home hostages subject to gendered violence must remain a political priority. With the destabilisation of the Middle East and rapidly increasing casualties, it is critical to remain aware of the risks of violence that afflict women and children in particular. Re-prioritisation of the protection of civilians, especially the most vulnerable among them, must remain a focus for human rights advocates and the international civic community.

Want to learn more?:

• Addressing Gender Violence: The Urgent Need for Introspection by the ICC
• Violence Against Women: Before and After the Taliban
• Decoding Manipur: Unveiling Human Rights Violations Against Women Amidst Ethnic Conflict
• Sexual Violence and Genocide: The International Court of Justice’s ruling on Rohingya 

On 8 July 2021, a report of the Special Rapporteur on the state of human rights in Palestinian territories endorsed the view that Israeli settlements in the territories occupied by Israel constitute a ‘continuing crime’ within the Rome Statute (RS) of the International Criminal Court. Significantly, this characterisation expands the temporal jurisdiction of the court, which has implications for one of the foundational principles in international criminal law (ICL), the principle of legality.

A ‘continuing crime’ is the breach of a criminal prohibition that extends over a period of time. An oft-quoted example of a continuous crime is driving a stolen vehicle, where the initial criminal breach of ‘theft’ continues as long as the state of the violation is maintained. The notion of a continuing breach is not novel and has been recognised in international instruments and the jurisprudence of courts and tribunals including the  European Court of Human Rights (ECHR), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC).

Adjacently, the principle of legality is a fundamental human right whose core element is the ‘rule of non-retroactivity’, necessitating that the criminal act or omission be prohibited by a ‘source of law previously applicable to the individual and reasonably accessible and foreseeable to them’. This rule guarantees that individuals are informed of the repercussions of committing a crime and are safeguarded from state arbitrariness. This right is also enshrined in the Rome Statute.

‘Continuing crimes’ and non-retroactivity

During the ICC investigation into violations of ICL in Palestine, one of the counts alleged is that Israel’s policy of settler implantation constitutes ‘war crimes’ of a ‘continuing nature’, which would expand the court’s temporal jurisdiction to conduct prior to the date provided in the referral to the situation.

Comparably, about 20 years ago, in Nahimana, the ICTR trial chamber considered publication of certain media to be constituting ‘direct and public incitement to genocide’ as a ‘continuing crime’. Publications from 1990 were considered, which was prior to the start of the tribunal’s temporal jurisdiction on 1 January 1994. Since the publications were of continuing impact after this date, the tribunal held all the publications as ‘conduct constituting the offence’. This characterisation of the crimes as ‘continuing’ was rejected by the Appeals Chamber, but it raises the important question of whether continuing crimes risk violating the principle of legality.

The principle prohibits not just formal but also ‘substantive retroactivity’, meaning that since the RS would become legally enforceable on individuals following the relevant conduct, there is no infraction of the principle when the statute’s contents are not interpreted beyond those of applicable preceding sources of law, such as customary international law or domestic law. Thus, in cases where the offences alleged or charged are customary in nature, such as those in the Geneva Conventions or the Genocide Convention, the requirement of ‘accessibility and foreseeability’ would be met. Here, the consideration of conduct committed prior to the applicability of the statute as part of a ‘continuing crime’ would not be in contravention of the principle.

However, since the customary status of the Rome Statute is uncertain, the prohibition on specific offences within the statute cannot be said to be ‘reasonably accessible and foreseeable’ for an accused on whom the RS was not applicable at the start of the breach. Consequently, in cases where the entirety of the conduct is charged for an offence which has not gained customary status or been criminalised nationally, the notion of a ‘continuing breach’ that started prior to and continued after the entry into force of the RS would violate the principle of legality.

The notion of ‘continuing crimes’ could be instrumental in establishing jurisdiction before criminal tribunals and bringing offenders to justice. However, the application of this concept needs to be considerate of the right to a fair trial rule of non-retroactivity, which would be breached in cases where the substantive criminal prohibition is not reasonably accessible or foreseeable to the accused. The alleged inclusion of Israeli settlements within the scope of ICC investigation thus increases the responsibility of the prosecution to ensure that the principle is sustained.

The commission found  that Israeli soldiers, in violation of international humanitarian law, intentionally shot and killed 35 Palestinian children, three paramedics, two journalists, and five persons with disabilities, who posed no imminent threat to soldiers. In an armed conflict, intentionally killing civilians who are not directly participating in the hostilities is a war crime under Article 8 of the Rome Statute. In the same vein, the commission also found serious human rights violations, including murder and other inhumane acts that inflict great suffering and serious injury on the Palestinian civilian population in violation of right to life, freedom of expression, and freedom of peaceful assembly. If such violations are committed in the context of widespread and systematic attacks against the civilian population and in pursuant of State policies, they  amount to crimes against humanity under Article 7 of the Rome Statute.

The commission further contended that the protests are ‘civilian in nature’ and found no evidence that the protests are combative or a military campaign. Unlike the Israeli Supreme Court ruling that the protests must be dealt with under the ‘active hostilities framework’, the commission stipulated that the normative framework for the use of force against the protestors is the ‘law enforcement’ paradigm that is based primarily on human rights law. However, the rules of international humanitarian law, mainly the principles of distinction, proportionality, and precaution, continue to operate as lex specialis.

Essentially rejecting the aforementioned court ruling which propounded that targeting members of armed groups is lawful, the commission concluded that in the absence of arms, targeting individuals merely on the basis of their ‘membership … and not on their conduct at the time’ is impermissible and unlawful. It further rejected that Court’s classification of civilians as ‘main inciters’ which, according to the commission, is a category that does not exist in international law and undermines the threshold of imminent threat.

By corollary, the commission contended that Israeli forces can resort to lethal force only in cases of imminent threat and self-defense. Relying on the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,the commission asserted that a threat is deemed imminent when an ‘attacker … have no remaining preparatory steps and be in sufficient geographic proximity…should be understood to mean a matter of seconds, not hours’. Importantly, by pushing this legal analysis, the report renders Israeli use of lethal force disproportionate and unnecessary, therefore impermissible.

Most importantly, the report gives rise to state responsibility on the part of Israel, the Occupying Power. It reiterated that Israel is obliged, under international law, to investigate and prosecute international crimes committed by either those who employed the unlawful force or those who drafted and approved the Rules of Engagement. The commission also reminded Israel that victims are entitled to remedy, access to justice, reparation, and guarantee of non-repetition.

The end of this month will mark the first anniversary of the ‘Great March of Return’ protests that call for the end of 11 year Israeli blockade and the right of Palestinians to return to their ancestral homes. All indications point to the continued momentum of the protests, and therefore, the recommendations of the commission are of paramount importance for the protection of the rights of the Palestinian people.

The anti-racism Convention, with its 179 State Parties, is a core international human rights law instrument that was ratified by Israel (1979) and the State of Palestine (2014) without reservations. The CERD requires State Parties to “pursue by all appropriate means and without delay a policy of eliminating racial discrimination,” and to eradicate any distinctions or practices based on nationality, ethnicity, race, or color.  The CERD’s interstate complaint allows for legal and international experts within the CERD Committee to determine whether Israeli practices in the Occupied Palestinian Territory (West Bank, Gaza Strip, including East Jerusalem) constitute a “system of discriminatory measures.”

The 350-page long communication references several Israeli violations of several CERD provisions. Mainly, the communication examines violations of  Article 5 of CERD and contends that Israel limits the freedom of movement of Palestinians compared to Israeli settlers; carries out extrajudicial punitive actions against Palestinians including land confiscations and house demolitions; and subjects the Palestinian population and the Israeli settlers to two different sets of laws (with a 99% conviction rate for Palestinian defendants). The communication expounds further on violations of  Article 3, which requires State Parties to condemn and eradicate apartheid and racial segregation “in territories under their jurisdiction” mirroring the Committee’s concluding observation in 2012 when it drew attention to  “two entirely separate legal systems”  and other Israeli practices that “amount to de facto segregation.”

In the concluding observation, the Committee also urged Israel to ensure respect for “Palestinians’ right to housing, education, health, water and sanitation in compliance with the Convention” and to take immediate measures to eradicate discriminatory policies “which severely and disproportionately affect the Palestinian population in the Occupied Palestinian Territory.” The Committee declared itself completely appalled “at the hermetic character of the separation of two groups” who share the same territorial area but are subject to two separate legal systems and infrastructure. Most importantly, the Committee pronounced on the applicability of the CERD and Israel’s responsibility vis-à-vis the Palestinian population in the Occupied Palestinian Territory.

Now that the State of Palestine has invoked the interstate complaint pursuant to Article 11, Israel is obliged, within three months, to submit to the Committee a clarification or written explanation.  However, if negotiations between the two State Parties fail, the Committee will appoint an ad hoc Conciliation Commission comprised of five independent experts, either appointed with the unanimous approval of the two Parties  or a by secret ballot of a two-thirds majority vote of the Committee (Article 12). Based on the information collated by the Committee, the Commission will examine the complaint and submit a report of its findings and recommendations (Article 13) that could assume relevance by international legal bodies including the International Court of Justice, for another Advisory Opinion, or the International Criminal Court, in regards to the State of Palestine’s recent referral alleging  Israel’s establishment of “a system of apartheid based in particular on the adoption of discriminatory laws, policies and practices.”

State Parties, including Israel, are required to refrain from policies and practices that disadvantage any group based on racial, religious, or any other arbitrary criteria. However, while Israeli settlers enjoy full civil and ancillary political rights, the Palestinian population in the Occupied Palestinian Territory is deprived of those rights. Thus, the findings of the Commission will facilitate and establish an assessment of the cumulative effect of a 50-year-long Israeli military occupation.

Traditionally both the advocates and the foes of the Palestinian right of return believe that one of the primary factors in determining the justifiability of the right of return hinges on the responsibility or culpability for the plight of the Palestinians. The interest promoted by recognizing a right of return is that of public acknowledgement and institutional recognition that a terrible wrong was committed. Rashid Khalidi for instance argues:

Acknowledgement of the right of return is seen as an acceptance in principle of the fact that the Palestinians are a people with national rights … and that a wrong was done to them as a people in preventing them from doing so. On the other hand, rejection of the right of return is seen as a denial of the Palestinian’s peoplehood and rooted-ness in their homeland, and thus of the injustice they have suffered.

In my view this assertion has its roots in a serious misunderstanding since, “[a]s all lawyers know, not all wrongs can be remedied by reinstating the status quo ante. Third party expectations and other considerations merit respect.” Indeed, denying that a person whose hand I intentionally broke is entitled to having my hand chopped off and transplanted into his body does not imply that I committed no wrong in breaking that person’s hand.

Nothing that has been said so far implies that there is no right of return. I only stated that it is wrong to regard the right of return as the only means of affirming that a wrong was committed in expelling Palestinians in the 1948 war. I turn now to explore the political ramifications of the use of the term ‘right of return’ in the context of the Israeli-Palestinian conflict.

Politically speaking, the right of return is a vague concept which is interpreted differently by different advocates of the Palestinian cause. It has been noted that while the idea of “return” has been central to the Palestinian national narrative, there is no authoritative Palestinian definition of what the scope of this right is. Instead, the right of return has been used in a wide range of senses, from the right of all Palestinians and their descendants to return to their former homes and places of origin in Palestine to the return of some Palestinians to some limited part of Palestine.

Vagueness is not necessarily an undesirable feature of agreements but the vagueness concerning the right of return is particularly damaging as it provides an opportunity for extremists to challenge any feasible negotiated resolution of the conflict. Thus in reaction to the negotiations that took place between Israelis and Palestinians in which the Palestinian leadership was considering the possibility of exercising the right of return in the Palestinian state a group Palestinian intellectuals published a petition maintaining that:

The Right of Return is essentially a collective national as well as an individual right which cannot be delegated, diminished, reduced or forfeited by any representation on behalf of the Palestinians in any agreement or treaty…We absolutely do not accept or recognize any outcome of negotiations which may lead to an agreement that forfeits any part of the right of return of the refugees and the uprooted to their homes…and we do not accept compensation as a substitute for return..

This petition illustrates the inherent dangers in the rhetoric of ‘return’. The right of return does not imply any determinate solution to the Israeli-Palestinian conflict as any particular agreed interpretation of the right can be challenged on the grounds that no Palestinian leadership can negotiate it away. It is hardly surprising therefore that the right of return is considered by many to be a major stumbling block to a peaceful resolution of the Middle East conflict.

The deaths occurred against the backdrop of Palestinian protests dubbed the “Great Return March”, during which 112 Palestinians have been killed since March 30 while attempting to move towards the border fence. More than 12,000 Palestinians have been wounded during this same period, including 2,271 people on May 14 alone, of whom 1,359 were injured by live ammunition. Among those shot were children, women, journalists, first responders and bystanders.

The approximately 40,000 demonstrators in the “Great Return March” on May 14 protested Israel’s 11-year long blockade of Gaza and marched in support of the right of Palestinian refugees to return to the land from which they fled or were expelled following the 1948 Arab-Israeli War. The International Covenant on Civil and Political Rights (ICCPR), to which Israel ratified in 1991, protects these rights to freedom of expression (Article 19) and freedom of peaceful assembly (Article 21). Article 6 of the ICCPR and Article 3 of the Universal Declaration of Human Rights further protect the essential right to life of all humans.

The question of whether Israel is legally entitled to fire upon demonstrators is a fraught one, complicated by the issue of whether there is a state of armed conflict at the border. The UN High Commissioner for Human Rights (UNHCHR), and a host of non-governmental organisations (NGOs), have long argued that there is no such state of armed conflict as these are largely peaceful demonstrations by Palestinian civilians. As a result, Israeli soldiers are bound to operate according to the framework of international human rights law, which applies to police and other law enforcement officials. Provision 9 of the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. The use of firearms against people is not permitted at all “except in self-defence or defence of others against the imminent threat of death or serious injury … and only when less extreme means are insufficient to achieve these objectives.” The UNHCHR has stated that an attempt to approach, cross or damage the border fence does not amount to a threat to life or serious injury.

However, the Israeli Government has argued otherwise, asserting that the “Great Return March” protests are “part of the armed conflict between the Hamas terrorist organisation and Israel”. Within this armed conflict paradigm, the Government has further stated that the demonstrators in Gaza comprise a new de facto category of individuals who are liable to potentially lethal force under a novel, hybrid international law framework. To justify its position, Israel has pointed to the use of flammable kites, Molotov cocktails, throwing of stones, and the fact that the protests have in part been organised by members of Hamas, arguing that any civilians in the mass of demonstrators are lawful targets of potentially legal force as they enable a presumed threat by the larger group of other individuals.

However, this argument is at odds with currently accepted principles of international law that maintain a distinction between law enforcement and the law of armed conflict. Armed conflicts are governed by international humanitarian law, which in some circumstances allows for direct recourse to lethal force against combatants in war and civilians directly participating in hostilities. Even under such an interpretation of the situation, international humanitarian law would only apply to members of armed groups operating within the crowds of protestors. Israeli security forces would not be entitled to use firearms against Palestinian civilians who are merely participating in the protests, as international human rights law would still govern any force used against these civilians.

It is clear that the killing of Palestinian civilians during the “Great Return March” protests constitutes serious violations of human rights by Israeli security forces.  The use of live ammunition against civilians exercising their right to protest is not permitted under any legal paradigm. Furthermore, both international human rights law and international humanitarian law require less extreme measures of force to be adopted where possible, such as through the use of tear gas, rubber bullets, or detention where this does not endanger the attacking party’s armed forces. Israel’s recourse to live ammunition, and the subsequent death of 112 Palestinians, may constitute crimes against humanity, an international criminal offence under the Rome Statute of the International Criminal Court. In the context of an occupation of the Palestinian territory, it may also amount to wilful killing, which is a war crime and breach of the Fourth Geneva Convention.

The Right of Return is a universally recognized right in international refugee law, human rights law, the law of nationality, and the law of state responsibility. It is also provided for in the Universal Declaration of Human Rights (Article 13),  in major treaties protecting the rights of refugees in times of armed conflicts under humanitarian laws, in core human rights conventions governing states’ obligations and duties, and consistently referred to in UN resolutions.

The Right of Return achieved customary status in 1948 when the UN General Assembly passed Resolution 194(III) affirming the rights of Palestinian refugees to return to their homes and to obtain restitution and compensation. Like never before in the history of the UN, Resolution 194’s consistency with international laws and instruments was reaffirmed by the UN more than 135 times. In the same vein, Resolution 2535 recognized “that the problem of Palestine Arab refugees has arisen from the denial of their inalienable rights under the Charter of the United Nations and the Universal Declaration of Human Rights.” Other seminal UN resolutions include 393, 2452, and 3236, which further strengthen the Right of Return as “indispensable for the solution of the question of Palestine.” In fact, Israel’s admission as a member to the UN was made conditional on its implementation of resolution 194, which it has disregarded on the basis that, according to the Israeli government, compliance would undermine the Jewish character of Israel.

As Israel acceded to conventions, its legal obligations towards Palestinian refugees under international law grew stronger. While, the International Convention on Civil and Political Rights (ICCPR) affirms that “no one shall be arbitrarily deprived of their right to enter his own country” (Article 12), the International Convention on the Elimination of All Forms of Racial Discriminations (CERD) requires State parties to “to prohibit and to eliminate racial discrimination…and guarantee the rights of everyone…in particular [to] the right to leave any country, including one’s own and to return to one’s country ” (Article 5).  Furthermore, Article 1D of the Refugee Convention applies solely to Palestinian refugees and designates special protection and assistance from two separate international agencies: United Nations Conciliation Commission on Palestine (UNCCP) and UNRWA, with an agreed-upon durable solution embodied in Resolution 194.

It is illegal as a matter of international law to deny refugees of a particular race, color, national or ethnic origin the right to return to their homes. Yet,  subsequent Israeli laws barred Palestinian refugees from returning to their homes in what is now Israel and the occupied Palestinian territories (Law of Return), sanctioned mass denationalization laws targeting Palestinian refugees (Nationality Law), and confiscated Palestinian private property and land-holdings (Absentee Property Law and Land Acquisition Law).  While the Right of Return remains the primary remedy, Palestinian refugees are entitled to reparations of their homes and properties based on the UN Principles and Guidelines, ICCPR Article 2, and other instruments. Reparations entail  restitution (including right to return), compensation, rehabilitation, satisfaction of victims, and guarantee of non-repetition.

Despite the continuing inaction of the international community, the Right of Return remains an inalienable and binding universal right, which applies equally to the Palestinian people, and should not be contingent on politics. It is an individual and a collective right intrinsically linked to the exercise of the right to self-determination of all 13 million Palestinians world-wide, and it is one which is currently not being respected. Until it is, the Palestinian people must be protected from further displacement and expulsion.