Amnesty International’s “Genocide” Claim against Israel amounts to a Breach of the Sub Judice Rule in the Ongoing ICJ Case & Limits the Group's Independence.

Amnesty International breached the “sub judice” rule placed on the ongoing international court cases that accuse Israel of “genocide”.

The “Sub Judice” rule is a restriction on public discussions of cases that are being considered actively by a court[1]. Since such cases have not been decided yet, an inherent limit is placed on discussing them openly – especially in ways that materially influence the judges' decisions. Sub judice works closely with the res judicata principle, which prohibits the trial of a case or matter that has already been resolved by a court of competent judicature[2].

Amnesty International can materially influence international courts by influencing their opinions on issues being tried by international courts. Also, as an international organization, Amnesty International is inherently connected to the international court system through various direct and implied legal and factual circumstances.

As such, Amnesty International has a fundamental duty to ensure that they respect the sub judice principle, especially in international judicial cases.

Amnesty International thrives on the label of neutrality and independence. They state expressly in their documents that:

“Amnesty International is impartial. We take no position on issues of sovereignty, territorial disputes or international political or legal”[3].

Thus, one would expect that they will respect the neutrality of international courts, especially when hearing cases involving an ongoing conflict.

Israel has been sued severally in different international forums for alleged war crimes and genocide since the Gaza war began on October 7, 2023. Most notable are the International Court of Justice (ICJ) by South Africa and the International Criminal Court, where Israel's leaders are implicated in personam.

Apparently, the res judicata principle has not been honored in the process, which shows that Israel is exposed to a high level of hostility in the international community.

Ideally, one would expect the ICJ to continue with its proceedings before other international bodies could draw their own inferences and start new cases. However, that did not happen. The case in the highest court in the international legal system today (ICJ) was active when the ICC started parallel proceedings, which in and of itself breaches the res judicata principle.

However, Amnesty International moved on to start its own investigations, which were inherently biased and laid out in ways that would materially influence any proceeding going on against Israel in the Gaza War.

The report is presented as a "Genocide report," which seems to be Amnesty International's own presentation of evidence to convince the ICJ that Israel is guilty of war crimes. This comes with a one-sided accusation of Israel, which dents the neutrality and independence of Amnesty International beyond repair. The report states in the executive summary that:

“It assesses allegations of violations and crimes under international law by Israel in Gaza within the framework of genocide under international law, concluding that there is sufficient evidence to believe that Israel's conduct in Gaza following October 7, 2023, amounts to genocide.”[4]

With that, Amnesty International sets its own subjective standard for defining "genocide" because they feel the current rules being used by the ICJ are "overly cramped."[5]. Based on this excuse, Amnesty International unilaterally moved to set its own standards on the definition of "genocide."

This raises several questions.

First, is Amnesty International as neutral as it claims to be?

The report sounds like that of a prosecutor, which is at variance with their façade of independence and neutrality.

Secondly, Amnesty International is arrogating power in ways that can harm world peace. As it stands, they are utilizing the credibility they have gained over the years as an international human rights organization to present a one-way submission that does not consider essential elements in the conflict in question.

Then, there is the question of the precedent this will set in the future.

If Amnesty International can set its own trial standards, try parties they unilaterally choose, and pronounce a guilty verdict on them, this transnational organization is setting a dangerous trend. This is a classical case of a sub judice breach in international law. That is all because Amnesty International is abusing its international status to provide misleading information that is calculated to influence an ongoing case in the international legal order. That is not acceptable to the international legal order.

The ICJ and ICC judges have to deal with the facts for what they are.

The facts of the current case indicate that the war in Gaza is between two parties:

1.      A terrorist organization that took up arms to attack and kill innocent people and

2.      A sovereign state that is constantly threatened by this terrorist organization and whose 1,200 citizens and legal residents were killed in the attacks in question.

In terms of genocide, new evidence is coming up that paints Hamas as being guiltier under classical genocide laws.

The genocides of Rwanda and Zanzibar (1964 – read about it) involved historically marginalized groups who took up arms and asked their members to murder anyone from the "other" group.

Establishing the "intent" of genocide puts Hamas in a position where they can hardly be absolved.

First, minutes of as many as ten secret meetings have come up that show that Hamas had been planning this genocidal attack on Israel since 2022, and they sought to enlist the help of Iran to do this.[6]. This shows they had an intent of killing Israelis on a massive scale.

Secondly, the Hamas-controlled media announced the launch of the operations at 6.30 am on October 7, 2023. Mohamed Deif commenced with the announcement, and Ismail Haniyeh confirmed it[7]. With this announcement, they actively invited all militants in Gaza and anyone who could join in to enter Israel and commit as much carnage on Israelis.

Thirdly, Gazan militants in Israel did not differentiate between combatants and non-combatants. Everyone was to be killed. No exceptions were made for Muslims as coreligionists or Arabs as fellow ethnic group members. Everyone they encountered in Israel was either to be executed on the spot or captured like a slave in a raid and sent back to Gaza.

Then, the same Hamas officials continued to reiterate they would do what they did on October 7 again and again.[8]. They continue to hold on to some 100 Israeli hostages. They have also embedded themselves in the civilian population of Gaza, which is and of itself a war crime – to operate from civilian areas.

Now, in late 2024, after the Israeli military killed over 40,000 Gazans, including some estimated 20,000 militants, Hamas officials say they are ready to give up the rule of the Gaza Strip, but they will not disarm.[9].

Putting it all together, Hamas has a pure and consistent intent of committing genocide against Israelis.

Thus, it is clear that analyzing the Gaza War by examining one side only is highly misleading and dangerous. It legitimizes the actions of a terrorist organization based on its fundamental goal of hiding and fighting from civilian areas.

When a comprehensive analysis is done, it is clear that a sovereign democratic state like Israel should be granted rights and powers under international law to go after a nonchalant group like Hamas.

In conclusion, any ruling genocide in the ongoing Gaza War outside a comprehensive view that includes Hamas’ nature, past actions, and current resolutions will be unconscionable for the judges of any international court.

The ICC is waiting to hear the arguments of the sides indicted by the prosecution. Israel's government has made it clear that it will send state lawyers to argue against the warrant issued against Israel's prime minister and state officials acting in their formal capacity.[10]. And even if the trial proceeds at the ICC, they will need to balance the case of a genocidal terrorist organization with the right of a sovereign state to defend its people from an ongoing threat that is bound to extend into the future. The ICC asked for the establishment of Israel's alleged genocidal intent – and this is to be finalized on July 28, 2025. Until then, the court is supposed to function on the assumption of Israel's innocence until proven guilty. Putting it all together, this is a case where Israel is being antagonized and charged on too many platforms. It is absolutely unacceptable for Amnesty International to abuse its privileges to unilaterally try and condemn Israel by abusing its reputation in the international community. And Amnesty International's presentation of unilateral accusation of Israel, which can materially mislead judges deciding on ongoing cases against Israel, constitutes a breach of the sub judice principle.

[1] Peter Hodgson Collin. Dictionary of Law. (New York: Taylor & Francis, 1999) p232

[2] Kevin M. Clermont. "Res Judicata as Requisite for Justice" Rutgers University Law Review 66 2016 p1067

[3] Amnesty International. “The State of the World's Human Rights" pii Published: April 2024. Available at: https://www.amnesty.org/en/wp-content/uploads/2024/04/WEBPOL1072002024ENGLISH.pdf

[4] Amnesty International. "Israel/Occupied Palestinian Territory: ‘You Feel Like You Are Subhuman’: Israel’s Genocide Against Palestinians in Gaza" p13 Published: December 5, 2024. Available at: https://www.amnesty.org/en/documents/mde15/8668/2024/en/

[5] Amnesty International. "Israel/Occupied Palestinian Territory: ‘You Feel Like You Are Subhuman’: Israel’s Genocide Against Palestinians in Gaza" p101 Published: December 5, 2024. Available at: https://www.amnesty.org/en/documents/mde15/8668/2024/en/

[6] Ronen Bergman, Adam Rasgon and Patrick Kingsley. "Secret documents show Hamas tried to persuade Iran to join October 7 attack on Israel" New York Times. Published: October 12, 2024. Available at:https://www.nytimes.com/2024/10/12/world/middleeast/hamas-israel-war.html

[7] Middle East Monitor. "Haniyeh outlines context and objectives of Hamas Operation Al-Aqsa Flood" Published: October 9, 2023. Available at: https://www.middleeastmonitor.com/20231009-haniyeh-outlines-context-and-objectives-of-hamas-operation-al-aqsa-flood/

[8] Morning Joe. "'No place on our land': Hamas official vows to repeat attacks on Israel 'again and again' until it's destroyed" MSNBC. Published: November 2, 2023. Available at: https://www.msnbc.com/morning-joe/watch/hamas-official-vows-to-repeat-attacks-on-israel-again-and-again-until-it-s-destroyed-196930629782

[9] Aya Batrawy. "A Hamas leader says they will give up governing Gaza, but won’t lay down arms" NPR. Published: August 16, 2024. Available at: https://www.npr.org/2024/08/16/nx-s1-5077757/gaza-war-hamas-leader-basem-naim-doha-interview

[10] Jeremy Sharon. "Israel to appeal ‘absurd, baseless’ ICC arrest warrants for Netanyahu, Gallant" Times of Israel. Published: November 27, 2024. Available at: https://www.timesofisrael.com/israel-appeals-absurd-baseless-icc-arrest-warrants-for-netanyahu-gallant/