Author: Alisha Fatima Safvi, Shri Ramswaroop Memorial University
Abstract
The Palestine question is one of the most enduring and tragic conflicts in modern history. Framed as a dispute over land, identity, and sovereignty, its core features are often obscured by geopolitical rhetoric. This article seeks to examine whether Israel’s prolonged occupation, treatment of Palestinians, and military campaigns constitute a violation of International Humanitarian Law (IHL) and International Human Rights Law (IHRL). It interrogates whether Israel’s conduct fits within the legal definitions of occupation, apartheid, or genocide, drawing upon key instruments like the Geneva Conventions, Rome Statute, ICJ advisory opinions, and ICC investigations.
Historical Context: From Zionism to Nakba
The Emergence of Zionism and British Complicity
The roots of the Nakba trace back to the late 19th century with the rise of Zionism in Eastern Europe. Influenced by anti-Semitic persecution and nationalist ideologies, Zionist leaders, including Theodor Herzl, envisioned a Jewish state in Palestine. The Balfour Declaration (1917) issued by Britain promised the establishment of a “national home for the Jewish people” in Palestine, despite the indigenous Arab population comprising over 90% of the inhabitants.
During the British Mandate (1920–1948), Jewish immigration increased dramatically. By 1935, the Jewish population had risen from 3% in the 1880s to 27%, often displacing Palestinian tenants. The Arab Revolt (1936–1939) against British policies and Zionist colonialism was brutally suppressed, resulting in widespread killings, torture, home demolitions, and mass imprisonment.
Nakba: Ethnic Cleansing of 1948
The Nakba (“catastrophe”) refers to the forced expulsion of more than 7,50,000 Palestinians from their homeland in 1948 to form the State of Israel. Zionist militias perpetrated over 70 massacres and levelled more than 530 villages. By May 15, 1948, half of the Palestinians had already been expelled. Deir Yassin massacre (April 1948) is illustrative, wherein more than 110 Palestinians were massacred.
By 1949, Israel had taken over 78% of historical Palestine, far exceeding the UN Partition Plan allocation (55%). There were about 150,000 Palestinians inside Israeli territory, of whom 30,000–40,000 became internally displaced.
The Legal Nature of Occupation under IHL
Israeli Occupation Since 1967
After the 1967 war, Israel captured the West Bank, East Jerusalem, and Gaza. The ICJ, in its 2004 Advisory Opinion, reaffirmed the occupied status of these territories and considered the Israeli building of a wall to be a violation of international law. Relevant IHL provisions include:
Fourth Geneva Convention, Article 49(6): Bans transfer of the population of the occupier into occupied territory.
Article 147: Describes grave breaches including wilful killing, torture, and unlawful deportation.
Israel’s settlement expansion and Gaza blockade constitute breaches of these provisions.
Gaza: Occupation by Remote Control
Even after evacuating settlers in 2005, Israel maintains de facto control over Gaza’s airspace, maritime access, borders, and population registry. The UN still regards Gaza as occupied territory.
Apartheid: Legal Definition and Application
Definition
Article 7(2)(h) of the Rome Statute: Apartheid is “inhumane acts. committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over another.”
International Convention on the Suppression and Punishment of the Crime of Apartheid (1973).
Evidence of Apartheid Practices
Reports by Human Rights Watch (2021), Amnesty International (2022), and UN experts have found that Israel enacts apartheid. Indicators include:
Dual legal systems for Palestinians and settlers
Restrictions on movement at checkpoints and with permits
Demolitions of homes and confiscation of land
Discriminatory legislation on access to resources, residency, and political participation
Genocide: Rising Legal Arguments
Definition and Threshold
Genocide Convention (1948), Article II: Genocide entails acts intended to destroy, in whole or in part, a national, ethnical, racial or religious group.
Rome Statute, Article 6: Mirrors the Genocide Convention.
ICJ Proceedings: South Africa v. Israel (2024)
In 2024, South Africa filed a case before the ICJ accusing Israel of committing genocide in Gaza. The ICJ ruled that provisional measures were necessary on January 26, 2024, and held the genocide allegations “plausible.” The ICJ ordered Israel to stop genocidal actions and grant humanitarian access.
Major charges:
Targeting of civilian infrastructure on a systematic basis
Starvation as a weapon of war
Incitement by senior Israeli officials
The Contemporary Situation: 2023–2025 War on Gaza
The latest escalation since October 2023 has led to catastrophic human suffering and tragedy and could be considered serious breaches of IHL.
Overall Death Toll: A minimum of 56,647 Palestinians have been murdered in Gaza by the Israeli military, as reported by the Palestinian Health Ministry.
An independent mortality survey published in June 2025 estimates the death toll at around 84,000 in Gaza alone.
1,000+ Palestinians have been killed in the West Bank since October 7, 2023.
Children and Infants: More than 17,400 children have been killed, including 825 infants (aged under one) and 895 one-year-olds.
UNICEF (May 2025) states more than 50,000 children have been killed or injured.
Women and Pregnant Women:
UN Women (May 2025) estimate 28,000+ women and girls killed. Newborns and pregnant women are among the victims, particularly following bombings of so-called safe zones and medical facilities.
Targeting of Civilian Infrastructure: Hospitals, refugee camps, and schools have been repeatedly bombed.
Refugee camps such as Jenin, Nur Shams, Far’a, Tulkarem, and Nablus have been subjected to raids, sieges, and mass destruction.
Legal Analysis: Occupation, Apartheid, or Genocide?
Occupation: The continued military presence and administrative control over Gaza and the West Bank constitutes occupation. The establishment of settlements and barriers, restriction of movement, and regulation of airspace and borders directly contravene the Fourth Geneva Convention.
Apartheid: The two-tier legal systems for Israeli settlers and Palestinians in the occupied territories, refusal to issue building permits, and limited access to resources all illustrate systematic racial domination. Human Rights Watch (2021), B’Tselem, and Amnesty International have stated that Israeli policies constitute apartheid.
Genocide: The mere magnitude of civilian killing, including tens of thousands of children, targeting life-supporting infrastructure (e.g., hospitals, refugee camps), and admissions by some Israeli officials of intent might meet the threshold under the Genocide Convention. The intent to destroy, in whole or in part, the Palestinian people could be inferred from the widespread, repeated, and systematic targeting of civilians.
Incendiary statements by authorities calling Palestinians “human animals” or advocating collective punishment validate allegations of genocidal intent according to international jurisprudence.
Ethnic Cleansing and prolonged Displacement
The Nakba didn’t stop in 1948. Palestinians were systematically displaced in the 1950s and 1967 during the Naksa, when 430,000 more Palestinians were displaced. Palestinian residents were forcibly expelled from cities such as Majdal and Beer el-Sabe by Israeli authorities into Gaza, the West Bank, and countries surrounding Israel. More than 30,000 other Palestinians were expelled between 1948 and the mid-1950s.
Today, approximately 7.98 million Palestinians remain refugees or internally displaced. Around 6.14 million live beyond Israel’s borders, many in UN-run refugee camps in Lebanon, Syria, Jordan, and Egypt. Conditions are dire, with overcrowding, limited access to education and healthcare and curbed movement.
Systematic Discrimination and Suppression of Rights
In Israel, there are about 1.8 million Palestinians living as a minority under discriminative laws because they are not Jewish. According to Adalah, close to 50 discriminative laws criminalize political expression, restrict commemoration of the Nakba, and limit land ownership and mobility. Despite being citizens, no new Palestinian cities have been constructed within Israel, whereas over 600 Jewish settlements have flourished.
In Gaza, civilians endure a total blockade of land, air, and sea. Access to basic services—clean water, electricity, medicine is severely restricted. Israeli forces have attacked schools, UN shelters, and hospitals, maternity wards included—without impunity. Reports include attacks on so-called “safe zones” with resultant massive casualties of women, children, and the elderly.
International Responses and Legal Proceedings
The ICJ’s interim orders in January 2024 directed Israel to stop acts of genocide in Gaza after South Africa petitioned under the Genocide Convention. ICC investigations into potential war crimes and crimes against humanity are ongoing.
UN Special Rapporteurs have declared the Israeli actions as ethnic cleansing and a plausible case of genocide. There have been several resolutions in the UN General Assembly that have condemned Israeli actions, but mechanisms for enforcement remains weak.
International human rights organisations and legal experts have issued joint statements calling for immediate ceasefire, lifting of the blockade, and prosecution of international crimes.
Conclusion
The information and statistics between October 2023 and July 2025 support the contention that Israel’s conduct in Gaza and the West Bank transcends mere occupation. The targeting of civilians, destruction of essential infrastructure, and disproportionate military force indicate to apartheid and potentially genocide.
The international legal community must no longer delay action. For the sustenance of norms of international humanitarian and human rights law, there needs to be tangible accountability mechanisms, safeguarding of civilian populations, and acknowledgment of Palestinian people’s rights to life, dignity, and self-determination.
If the international legal order is to be accorded any moral legitimacy, it needs to react categorically to atrocities committed against Palestinians. And no, not in rhetoric alone, but through prosecution, sanctions, and enforcement of international law.
FAQS
1. What is the Nakba?
The Nakba (“catastrophe”) refers to the 1948 forced expulsion of over 750,000 Palestinians during the creation of Israel, marked by mass killings and destruction of villages.
2. Is Gaza still considered occupied?
Yes. Despite Israeli withdrawal in 2005, control over Gaza’s air, land, and sea means it remains occupied under international law.
3. What is apartheid in this context?
Apartheid is racial domination by one group over another. Israeli policies—dual legal systems, restricted movement, land seizures—fit this definition according to HRW and Amnesty.
4. What laws protect Palestinians?
Geneva Conventions, ICCPR, ICESCR, and the Genocide Convention safeguard their rights.
5. What needs to happen?
Accountability through ICC, sanctions, and enforcement of humanitarian law; recognition of Palestinian rights to dignity and self-determination.
