It has been observed that various institutions have been sought to be brought into play to halt Israel’s attacks, particularly against the Gaza Strip, since October 7, 2023. In the initial stage towards the end of the same year, South Africa initiated a process at the International Court of Justice (ICJ), based on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, claiming that Israel’s actions constitute genocide. We have so far seen provisional measures issued. The proceedings are expected to take a long time. On the other hand, another mechanism was brought into play in 2024 concerning the search for a solution. The International Criminal Court (ICC) issued arrest warrants for various officials, including Israeli Prime Minister Benjamin Netanyahu.
Due to factors such as the cumbersome structure of international judicial bodies, the potentially long duration of the examination process, given that the crime of genocide is the gravest offense, and the lack of a police force for these mechanisms, unlike national courts, no practical impact has been seen so far. The search for effective tools continues. Indeed, yesterday, the Independent International Commission of Inquiry on the Occupied Palestinian Territory published a report. This report should not be considered independently of the processes underway at the ICJ and the ICC.
What Does the Commission’s Report Mean?
The report, which has received significant public attention, was published by the Independent International Commission of Inquiry on the Occupied Palestinian Territory. As its name implies, the Commission conducts investigations into the situation in Palestine, including East Jerusalem, and violations of international law. This commission is an independent investigative mechanism established by a resolution of the United Nations Human Rights Council in 2021 and consists of three members.
The Commission examines Israel’s actions in the occupied Palestinian territories based on international law. This means it conducts investigations within the same scope as the ICJ and the ICC. However, unlike them, this commission does not have the authority to impose penalties or to transform into a court and issue rulings. It is known that the decisions of the ICJ and the ICC have a binding problem because their decisions lack enforcement power. This being the case, it is meaningless to evaluate the commission’s decision at the same level or to expect a direct practical outcome from this report. The report presented by the Commission can serve as evidence for the genocide case ongoing before the ICJ and for the potential processes at the ICC. This is because the matters falling under the responsibility of states within the scope of the report have been linked to the ICJ, while actions falling under the scope of individual responsibility have been connected to the ICC. As is known, a state’s responsibility can be at issue before the ICJ, whereas only individuals can be prosecuted at the ICC.
What Does the Report Say?
As mentioned above, the commission worked on violations of international law. Therefore, the focus is whether the crime of genocide, the most serious offense under international criminal law within the scope of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, has occurred.
First, it must be stated that the report found that the elements of intent (mens rea) and the material acts (actus reus) constituting the crime of genocide have been realized. Statements put forward by Israeli officials since October 7, 2023, were accepted as direct evidence demonstrating genocidal intent, while the way the genocidal acts were carried out or the way the acts developed was accepted as circumstantial evidence demonstrating intent. Furthermore, acts such as killing, starvation, the deliberate collapse of the health system, forced displacement, preventing births, and sexual violence were found to be accepted as the material elements of the crime of genocide. In summary, the report confirms the existence of the intent and the acts constituting the crime of genocide, with reference to the previous jurisprudence of the ICJ and the ICC. Indeed, it is explicitly emphasized in the conclusion of the report that Israel has committed the crime of genocide and failed to take the necessary steps to prevent it.
Secondly, a clear separation between state responsibility and individual responsibility is seen in the text. This indicates that the commission members made an assessment parallel to the jurisdictions of the ICJ and the ICC. For instance, the commission called for the immediate compliance with the provisional measures ordered by the ICJ to date. As is known, before the genocide proceedings initiated by South Africa and joined by many countries commenced before the ICJ, the court had ordered provisional measures on January 26, March 28, and May 24, 2024. Moreover, the commission also called upon the ICC, holding the view that the crime of genocide should be included in the current investigation and that the existing arrest warrants should be expanded to include different names. The arrest warrant issued by the ICC for Netanyahu was based on war crimes and crimes against humanity, not the crime of genocide.
The Commission Calls Upon Third States
According to the report text, the duty to prevent and punish genocide applies not only to the responsible state but to all states party to the Genocide Convention and even to all states under customary international law. Therefore, it is probable that the responsibility of third states will also come onto the agenda in subsequent stages. All states are obligated to take all steps necessary to prevent the crime of genocide, which is the gravest offense under international criminal law. This obligation is accepted within the scope of erga omnes (towards all). All states must cease the transfer of weapons, prevent the participation of companies within their territories in genocide, and impose sanctions if necessary. Furthermore, states are expected to utilize their national court processes to initiate legal proceedings and punish their citizens involved in this crime. “Standing by” may give rise to indirect responsibility.
As can be seen, the report prepared by the independent commission assessed the ongoing practical process in parallel with the procedures at the ICJ and the ICC. Since the Commission is only authorized to investigate, it would be unrealistic to expect a direct practical effect after the report. Nevertheless, it should not be misunderstood that the report is worthless. An indirect impact on the decision-making mechanisms can be expected. Indeed, it is likely that the investigations conducted by the commission will influence and even expand the processes in the aforementioned international courts in the future. In other words, the report, rather than appearing as a technical document, could be a potential turning point capable of affecting other processes. Furthermore, as noted above, it is important that the commission reminds third countries of their obligation to prevent genocide and advises them to initiate national court proceedings. This reminder means that the report can indirectly affect processes in national courts, in addition to international courts.
This article was first published on the Türkiye Research Foundation’s Turkish website on September 17, 2025.
