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War against Women

A Feminist Perspective on the ICJ Order South Africa v Israel

28.06.2024

The Orders of the International Court of Justice (ICJ) regarding the Israeli military operation in Gaza have been widely discussed from numerous perspectives (see here, here, and here). However, the gendered impacts of the Gaza War have received little attention, which surprises given Germany’s feminist foreign policy.

Feminist international law examines the gender-specific causes, modalities, and impacts of events relevant to international law. When assessing the ICJ Order in the case of South Africa v Israel from 26 January 2024, as well as the underlying Israeli military operation in Gaza since 9 October 2023, from a feminist perspective, several categories emerge. First, the gendered impacts of Israel’s military attacks, displacement, and the imposed siege resulting in inadequate access to humanitarian aid; and second, the gender-specific modality of genocide “imposing measures intended to prevent births within the group” outlined in Article II (d) of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). This post aims to shed light on this dimension and argues that the lack of media coverage and legal commentary is particularly critical given the growing international recognition of reproductive violence as part of international crimes and in the context of German feminist foreign policy.

Gendered Impact

Women, girls, and children are among the most vulnerable groups in this conflict. By 29 April 2024, the Israeli military operation in Gaza had resulted in 34,488 Palestinian deaths, including 14,500 children and 9,500 women, accounting for 70% women and children. On average, 63 women, including 37 mothers, were killed daily. Since the start of the war in Gaza, an estimated 17,000 Palestinian children have been orphaned. Of the over 77,000 injured Palestinians, an estimated 75% are female. In light of these drastic figures, UN Women refers to it as a “war against women.”

Moreover, the displacement of 1.7 million Palestinians, ostensibly gender-neutral, has gender-specific impacts. According to reports, while on the displacement journey, women face risks of arbitrary detention and harassment. For families with elderly relatives or family members with disabilities who cannot move, it is women who disproportionately stay behind as caregivers. According to UNFPA and UN Women, nearly one million women and girls live in overcrowded shelters lacking adequate water, sanitation, and hygiene facilities, as well as limited privacy for menstrual hygiene management for over 690,000 women and girls. This leads to increased health risks, particularly for the estimated 155,000 pregnant, birthing, postpartum, or breastfeeding women. Furthermore, the lack of menstrual hygiene products increases the risk of infection for women and girls.

Women and children are especially vulnerable due to family separation and the consequent loss of protection amidst the increasing presence of Israeli forces and widespread gender-based violence. This heightened protection risk is not to be underestimated in the context of the total collapse of law enforcement.

Similarly, the siege ordered by Prime Minister Netanyahu resulting in inadequate access to humanitarian aid has gender-specific impacts. 1.1 million people in Gaza are affected by a “catastrophic level of food insecurity,” with 677,000 on the brink of famine. One in three children under the age of two suffers from acute malnutrition. Women are typically more affected by famine as they tend to deprioritize their food intake when access to food is restricted. Additionally, pregnant, birthing, postpartum, or breastfeeding women are more severely affected by malnutrition, lack of medical care, and medications due to their significantly higher needs.

Gender-Specific Modality of Genocide

Given this “gendered impact” of the war, it is not surprising that South Africa’s application has placed significant emphasis on the gender-specific modality of genocide in Article II lit. d of the Genocide Convention:

“In this Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (…)

d. Imposing measures intended to prevent births within the group.”

This form of genocide falls within the category of largely unrecognized reproductive violence aimed at protecting reproductive autonomy. The Office of the Prosecutor of the International Criminal Court (ICC) issued a policy on gender-based crimes in December 2023, entailing a definition of reproductive violence. Accordingly, “reproductive violence violates reproductive autonomy and/or it is directed at people on account of their actual or potential reproductive capacity, or perceptions thereof.”

While other forms of reproductive violence have started being prosecuted as crimes against humanity or war crimes, there has not yet been a finding of the gender-specific modality of genocide before the ICJ, ICC, or ad-hoc criminal tribunals. The International Criminal Tribunal for Rwanda in its Akayesu judgment obiter dictum was the first to determine that measures aimed at preventing births within the group could be both physical and mental. Physical or direct measures include “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes, and prohibition of marriages” (para. 507). Mental or indirect measures include “rape intended to prevent births if the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate” (para. 508).

Gender-Specific Genocidal Measures in Gaza

In its application of 29 December 2023, South Africa claimed that Israel imposed measures on members of the Palestinian nation in Gaza aimed at preventing births within the group. This included the killing of pregnant women by Israeli soldiers, including during attempts to access health services, as reported by Al Jazeera and The New Arab (para. 95). According to WHO, an estimated 5,500 pregnant women give birth each month in Gaza under unsafe conditions without access to medical care, posing significant infection and medical complication risks (para. 96). The UN reported that due to the lack of medical supplies, pregnant women undergo C-sections without anesthesia, and doctors are forced to perform unnecessary hysterectomies on young women to save their lives, preventing them from having more children (paras. 96-97). Oxfam reported a 25-30% increase in premature births and the doubling of cases of placental abruption (para. 98). OCHA reported a rapid increase in the mortality rate of premature infants due to the lack of necessary medical equipment, especially incubators and fuel for hospital generators, leading to deaths from preventable causes such as diarrhea or hypothermia (para. 99). Additionally, WHO warned that inadequate care leads to increased maternal mortality and stress-related miscarriages, stillbirths, and premature births (para. 100).

The targeted attacks on hospitals, the debilitation of the healthcare system, and the restriction of humanitarian aid deny Palestinians access to reproductive health care and constitute a form of indirect measures to prevent births. Although it is not required under Article II (d) of the Genocide Convention that an actual reduction in births occur, since the article merely refers to the imposition of measures intended to prevent births (see Prof. Kress), the measures imposed by Israel have nevertheless resulted in a reduction of births in Gaza. In January 2024, it was reported that the miscarriage rate in Gaza had increased by 300%, and in November 2023, the WHO reported an increase in maternal mortality and stress-related miscarriages, stillbirths, and premature births in Gaza.

On the merits stage, South Africa will have to convince the ICJ that Israel intentionally imposed the aforementioned measures to prevent births and aimed to destroy the Palestinian group in whole or in part. At the provisional measures level, the ICJ undertook an assessment of the “plausibility of rights” and referenced a possible genocidal intent by Israel by referring to the following statements: Defense Minister Gallant’s order for the “complete siege” of Gaza City with no “electricity, food, or fuel”; his description of opponents as “human animals”; President Herzog’s statement that “[i]t is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved. It is absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’état. But we are at war. […] And we will fight until we’ll break their backbone.”; and Energy Minister Katz’s statement that “[w]e will fight the terrorist organization Hamas and destroy it. All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.” (ICJ Order, para. 52-53).

Interestingly, this aspect of South Africa’s complaint has received little attention, despite the widespread public interest in the decision itself.

Conclusion

Despite these shocking facts, the specific gendered suffering of Palestinians in Gaza is hardly acknowledged or lamented by western feminists, with few exceptions (e.g., Fionnuala Ni Aolain, Ruby Mae Axelson).

The reasons for the deafening silence of western feminists may vary: One reason could be the narrowly perceived German historical responsibility in light of the Holocaust, often leading to blind solidarity with Israel, with criticism often seen as a betrayal of the lessons from Germany’s history. Additionally, the fear of anti-Semitism accusations leads many feminists to remain silent. Another issue is that some feminists adhere to the narrative – similar to the US invasion of Iraq or Afghanistan – that Israel is liberating Palestinian women from patriarchal structures, and thus avoid criticism of Israel to not be seen as supporting patriarchal structures. Moreover, media coverage in Western outlets privileges certain narratives and marginalizes others, making the gendered impacts of the conflict less visible. The statement of the German Association of Women Lawyers, which condemns gender-based violence in this conflict, albeit one-sidedly in favor of Israel, shows that a condemnation of gender-based violence is generally possible.

This silence is particularly contradictory in the context of Germany’s feminist foreign policy, which aims to overcome mechanisms of oppression and discrimination in international power relations and highlights the importance of reproductive rights. Given that feminist foreign policy is peace policy, abstaining from voting on resolutions for a ceasefire in the UN General Assembly is puzzling. A critical examination of these factors is necessary to break the silence and find a more solidary feminist stance.

Author
Nora Salem

Nora Salem holds the position of Assistant Professor and serves as the Head of the Public International Law Department at the German University in Cairo, Egypt. She has held a number of consultancies with the UN, most recently at the UN Office of Counter-Terrorism on issues related to Human Rights in Counter-Terrorism.

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  1. Hamas states openly:
    “The Day of Judgment will not come about until Muslims fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Muslims, O Abdulla, there is a Jew behind me, come and kill him.”
    (https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/ and https://avalon.law.yale.edu/20th_century/hamas.asp)

    1.
    Hamas has raped and gang-raped systematically Israeli women [1]. The author is not mentioning Jewish rape victims even once.
    Also Israeli female hostages are being sexually harrassed during their captivity [2].

    The author is blaming – without any explanation or substantion – the German Association of Women Lawyers of being “one-sided in favor of Israel”.
    The author is not mentioning even once (!) Jewish rape victims, which makes the accusation of “one-sidedness” against the German Association of Women Lawyers even more absurd.

    The reason that the German Association of Women Lawyers have accused Hamas and not Israel is evident:
    Hamas has raped, tortured and gang-raped Jewish women in a ISIS-style. The Israel Defense Forces did not commit such acts.

    There is no equivalency between the only democracy in the Middle East, with an open homosexual speaker of parliament, and a group of ISIS-like terrorists who have perpetrated the biggest massacre against Jews after the Holocaust.

    The German Association of Women Lawyers is not one sided, it is simply reflecting the reality.

    2.
    The war could end every second.
    Hamas has just to release the Israeli hostages, among them Israeli women who are being constantly raped [2], and lay down its arms.
    Without Hamas’ genocide against Jews [3], the whole situation would not exist.

    3.
    There is no food insecurity in Gaza. Let’s look at some facts:

    The author uses as a source an article from Al-Jazeera.
    Like the German tagesschau explained, Al-Jazeera is the Qatarai state propaganda channel [4].
    As Qatar is a cruel dictatorship, claims made by Al-Jazeera should always be double-checked.
    So, let’s do this and let’s look at the reality of humanitarian aid on the ground.

    Background information:
    a) The fact that Egypt is preventing civilians from Gaza from seeking temporary protection in Egypt in violation of international law [5] is already a familiar picture.
    On May 8, Egypt went one step further in its anti-Palestinian policy:
    Egypt is closed the Rafah border crossing at May 8 [6].

    The entire supply of aid is therefore dependent on Israel.

    Egypt’s behavior towards the Palestinians shows impressively how little the Arab states are actually willing to do for the Palestinians and how unpopular they are with the governments there.

    By the way, a last information the regarding much-needed background:
    Hamas constantly attacks the Kerem Shalom aid crossing – alone in May ’24 the aid crossing was attacked four times [7].
    At every attack, soldiers died. Every attack leads also to a temporary closing of the aid crossing for security reasons.
    Therefore, Hamas is responsible for this closures – not Israel.

    b) What amount of aid is entering Gaza? Here are the facts, from COGAT and the UN itself, analyzed by two Columbia professors:
    250 truckloads are entering Gaza every day.
    Every truck cares 20 tonnes of food. Therefore, five million kilograms of food are entering Gaza every day.
    So, the available food amount is about 2.25 kg. per person in Gaza.
    “This is almost identical to the 2.36 kg. of food per day that the UN’s Food and Agriculture Organization estimates the average individual consumes in North America.” [8]
    The professors also refer to a study by the Hebrew University of Jerusalem (which is not exactly suspected of spreading “Israeli government propaganda”). According to this study, the total amount of aid deliveries results in a supply of almost 3,400 calories per capita – more than 50% above the recommended amount of 2,100 calories per capita.

    Last but not least: The amount of food entering Gaza is much higher than it was before October 7 [9].
    This fact alone exposes completely South Africa’s political campaign against Israel.

    c) The author mentions a lack of fuel. But Hamas is storing a huge amount of fuel which it stole from civilians. Hamas is to blame, not Israel [10].

    d) Some UNRWA employees are very good in murder Jews [11]. Unfortunetaly, UNRWA is completely incapable when it comes to the distribution of Israeli humanitarian aid to Gaza [12]. Israel is delivering enough aid, but UNRWA is not distributing it fast enough.

    e) The fact that Israel is delivering aid to Gaza is remarkable by itself. Israel knows very well that most of the aid it delivers will fall eventually into Hamas’ hands. Nevertheless, it continues its humanitarian aid.

    Conclusion:
    Enough food is entering Gaza. But the UN is failing to distribute it properly. And the main problem is Hamas that is looting large amounts of humanitarian aid in order to supply its terrorist fighters as well as in order to earn money by selling relief supplies on the black market.
    Hamas has already stated publicly that it doesn’t care about the Gazan citizens. Hamas even said that “it needs the death of many Gazans”.
    If you wants to improve the situation, you should blame Hamas, an apocalyptic Muslim brotherhood-offshot.
    Blaming Israel is neither fact-based nor does it help Gazans.

    4. The numbers stated in South Africa’s application are coming directly from the Hamas-run Health Ministry in Gaza.
    Therefore, they are very questionable.

    Several statistics expert have checked the data and concluded that Hamas is faking those numbers in order to win the “war of propaganda”.

    According to these experts, the casualty figures by Hamas are evidently flawed and false.
    Especially, the number of dead children and women is lower than Hamas stated. Therefore, also the numbers used by the author too high, as they are the numbers provided by the Hamas Health ministry.
    The German newspaper ZEIT comes to the same conclusion.
    In the sources under point 13 you can find several studies and articles about Hamas’ lies and its wrong casualty numbers [13].

    Hamas also uses women and and children as human shields and is therefore responsible for their death.
    Add to that, Hamas recruits systematically children as combatants [14].
    Do you think that Hamas is counting a killed 17-year old terrorist as a combatant or as a civilian? We all know the answer.

    By the way: 20% of the rockets fired by Hamas – until now more than 10,000 – are falling short and are killing Gazans (instead of reaching their goal and murdering Jews).
    Do you think that Hamas counts the resulting deaths among Gazans by misfired Hamas rockets as “killed by Israel”? We all know the answer.

    5. The author states a statement by UN Women. One should not take statemens from this organization too serious.
    The organization is not credible, as it has failed to condemn the systematic rape against Israeli women, commited by Hamas, for months [15].
    And let’s remember: Saudia-Arabia is the chair of UN Women. Saudi-Arabia does not accept Israel’s right to exist and is also not exactly a champion of women rights [16].

    6. Hamas – not Israel – has commited genocide [17]:
    The Israeli military operation in Gaza, starting at the 9th of October, was caused by Hamas’ genocide of Jews at October 7.
    Hamas murdered, raped and tortured 1,200 Israelis, among them Holocaust survivors, and kidnapped 250 Israelis – among them a 85-year old women and a 9-month old baby.
    Children were murdered in front of their parents, parents were murdered in front of their children [18].

    “South Africa’s accusation of genocide against Israel is absurd and has no substance whatsoever. This is also known in Pretoria”, says Prof. Martin Herdegen, one of Germany’s leading international law experts [19].

    Not just the claim is wrong. South Africa’s application contains several factual mistakes.

    To name just one example of a false statement made by South Africa:
    The expression “human animals” (חיות אדם), deplored by South Africa (p. 60 & 62 of its statement), was used by Israel’s Defense Minister as well as the Israeli general, Ghassan Alian, only for the Hamas terrorists, but NOT for all the inhabitants of Gaza.

    Much more important, the expression is quite common in the Hebrew language in general.
    It is used to describe behavior that is considered “inhuman”; its telos is not to deny the addressee’s humanity.
    For example, it was also used to describe a group of (Jewish-Israeli) teenagers who brutally beat up a peer, filmed it and then shared the video on social networks [19].

    South Africa ignores this linguistic background completely.

    And the assertion that the term was used to refer to all the inhabitants of Gaza is not correct – as I said, only the Hamas terrorists were referred to in this way.

    By the way, the IDF general named by South Africa, Ghassan Alian, is not an Israeli Jew, but an Israeli Druze.
    Israel is the only liberal democracy in the Middle East, in which minorities have full equal rights and in which a Druze is commanding tens of thousands of Israeli soldiers, Jews, Druze, Christians and Muslims.
    This is one of the (realpolitik) reasons, why Germany is supporting Israel and should continue to support Israel.

    7. While the author may feel that Germany is supporting Israel “blindly”, this does not feeling correspond to the facts.
    Germany has abstained several times in UN General Assembly votes that treated Israel very unfair [20].
    One example is A/ES-10/L.27:
    This resolution does not even manage to name the terrorist organization Hamas, let alone name and condemn the acts of 7 October.
    So Germany should support Israel “blindly”, even though it does not oppose to a resolution that does not even name the perpetrator of the biggest anti-Semitic pogrom since the Holocaust?
    This is incomprehensible to me.
    I also take a critical view of Germany’s abstention – they should have voted “no” so that it is clear that the resolution is unacceptable because it does not name the perpetrator of the genocide, which was Hamas, not Israel.

    Sources:

    [1] https://www.nytimes.com/2023/12/28/world/middleeast/oct-7-attacks-hamas-israel-sexual-violence.html ; https://www.spiegel.de/ausland/hamas-terror-in-israel-uno-bericht-bestaetigt-vergewaltigungen-a-d34fe10d-96a3-443d-afe1-742e14aa1a94
    [2] https://www.nbcnews.com/investigations/un-finds-clear-convincing-information-hostages-raped-gaza-rcna141789
    [3] https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/
    [4] https://www.tagesschau.de/faktenfinder/kontext/al-jazeera-nahost-100.html
    [5] https://verfassungsblog.de/trapped-in-gaza/
    [6] https://www.jpost.com/israel-hamas-war/article-806739
    [7] https://www.fdd.org/analysis/2024/05/23/hamas-terrorists-attack-kerem-shalom-aid-crossing-for-fourth-time-in-may/
    [8] https://www.jpost.com/israel-hamas-war/article-806739
    [9] https://x.com/EylonALevy/status/1775126954557030713
    [10https://www.jns.org/ask-hamas-if-you-can-have-some-idf-tells-unrwa-of-132000-gallons-of-fuel/ ; ] https://x.com/IDF/status/1716884494131868138 ;
    [11] https://www.fdd.org/analysis/2024/05/14/gaza-terrorists-exploit-two-more-unrwa-facilities/ ; https://www.europarl.europa.eu/doceo/document/E-9-2024-000295_EN.html
    [12] https://www.jpost.com/israel-hamas-war/article-804843
    [13] https://www.tabletmag.com/sections/news/articles/how-gaza-health-ministry-fakes-casualty-numbers ; https://www.nzz.ch/international/getoetete-frauen-und-kinder-im-gazakrieg-eine-analyse-der-opferzahlen-ld.1827520 ; https://www.zeit.de/politik/ausland/2023-11/gaza-opferzahlen-israel-hamas-glaubwuerdigkeit ; https://www.nzz.ch/feuilleton/medien/nahost-krieg-hamas-faelscht-mutmasslich-opferzahlen-in-gaza-ld.1822303 ; https://taz.de/Opfer-im-Gaza-Krieg/!5969294/
    [14] https://stratcomcoe.org/cuploads/pfiles/hamas_human_shields.pdf
    [15] https://www.fr.de/politik/missbrauch-israel-gaza-krieg-hamas-anschlag-oktober-sexuelle-gewalt-zr-93051548.html ; https://www.freitag.de/autoren/alina-saha/feminismus-nach-dem-7-oktober-un-women-schweigt-lange-zum-terror-der-hamas ; https://taz.de/Gewalt-an-Frauen/!5972451/
    [16] https://www.derstandard.de/story/3000000213604/un-frauenrechtskommission-massive-kritik-an-neuem-vorsitz-durch-saudi-arabien
    [17] https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/
    [18] https://www.bbc.com/news/world-middle-east-67192885
    [19] https://twitter.com/Prof_Herdegen/status/1745777970503938347
    [20] https://www.mako.co.il/entertainment-celebs/local-2023/Article-0b013dcdd188a81027.htm
    [21] https://www.diepresse.com/17841739/nahost-die-uno-spielt-mit-ihrer-glaubwuerdigkeit

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