By Thomas W. Simon, Professor of Law and Philosophy, Johns Hopkins University-Nanjing University

Reports from the media, scholars, organizations, and governments can have major impacts, positive and negative, on conflicts. Four areas of international law need more attention for the following reasons. First, more public discussion will expose flaws and gaps in the law, thereby stimulating further discussion. Second, a focus on these areas will provide a better picture of the war in Gaza. Finally, the analyses below offer the invitation to exert public pressure to make critical changes to international law.

Legal histories and developments should be more widely reported in coverage of the Gaza War. Each section will trace a particular legal development. More importantly, including each of these in reports and discussions about the Gaza War will have widespread repercussions, as noted below.

  1. Organizational Criminal Responsibility. The history of prosecuting organizations for international crimes at the Nuremberg trials shows the way to extending (legally, ethically, and politically) responsibility for war.
  2. Crimes against Humanity. Advances in codifying the international crime of crimes against humanity reveal the wide range of destructive acts in war.
  3. Proportionality/Disproportionality. Scholars make the case that proportionality in jus ad bellum (going to war) overlaps with proportionality in jus in bellum (actions within war). A constant reminder of the asymmetric nature of the Gaza War does not excuse but it helps us understand terrorist acts.
  4. Atrocities against Children. International criminal law was built for adults. There are some efforts to cover children as victims of war more specifically. Children must serve as the foundation of  legal and ethical concerns.

1.      Organizational Criminal Responsibility

Every criminal justice system, national or international, focuses primarily (if not exclusively) on individual perpetrators of crimes. Yet, organizations commit far more atrocities than individuals. Consider the following rough comparisons. Add the victims murdered by individuals in Germany (1938-1945) (tens of thousands). Then, calculate the number of deaths attributed to German organizations such as the Gestapo during the same period (tens of millions). The harms caused by these organizations far exceeded those committed by individuals. Yet, few criminal justice systems have any procedures for organizational criminal liability.

History, however, reveals a largely forgotten episode in which international law held organizations criminally liable. The Nuremberg Tribunal indicted six organizations: the Reichskabinett, the General Staff and High Command, the Leadership Corps of the Party, the SA (Sturmabteilung), the SS (the Schutzstaffel, which ran the concentration camps), the Gestapo, and the SD (Sicherheidienst, a part of SS that carried out intelligence, clandestine, and liquidation operations). 

The German people paid close attention to news about the indictments of Nazi organizations.  The Tribunal’s Edict 10 on criminal organizations had awakened an indifferent German public.  By setting forth initiatives against potential criminal organizations, it potentially affected, by some estimates, seven million individuals.  “Potentially, half the families in Germany had members who would be touched by Edict 10.”[1]  The SA had 4.5 million German members; the SS, “hundreds of thousands” of members; and the Leadership Corps, some 700,000 members.[2]  Robert Kempner, head of the Defense Rebuttal Section, after surveying German public opinion, wrote to the Chief Prosecutor Robert Jackson, “If [only] the leaders are found guilty then the onus of guilt is removed from those who merely did their bidding.”[3]  German citizens did not know how far the Tribunal’s arm would reach into German society.  The United States alone, at that time, held some 200,000 potential German war criminals.[4] Think of a similar reach into Israeli society.

Admittedly, it would take some radical measures to make organizational criminal liability an acceptable device in international criminal law. However, making the Nuremberg history more widely known could guide the moral debate over Gaza in a new direction. The ICC has issued an arrest warrant for former Minister of Defense Yoav Gallant.[5] But why restrict responsibility to one individual? Why not include all units and members of the Ministry of Defense, including the Israeli Defense Forces, the Israeli Military Industries, and the Israeli Aerospace Industries, as well as the Security Cabinet? It is almost impossible to assess the success of stimulating this debate and even more difficult to predict where it would lead. Nevertheless, these debates hold great potential for pushing the discussions to a deeper level.

Historically, the failure to make organizations responsible for war crimes has had dire consequences, as the Rwanda genocide showed. Extremist Hutus organized the Interahamwe (“those who attack together”), which largely carried out the genocide of 800,000, mostly Tutsis, in Rwanda.  By not addressing the actions of organizations, international law has failed and continues to fail to prevent the ongoing atrocities carried out by these organizations. 

The life of many Nazi organizations ended shortly after World War II.  Three months before the Rwandan genocide began, the United Nations Force Commander Roméo Dallaire sent a warning cable to his superiors.[6]  The United Nations Department of Peacekeeping Operations, headed by the future United Nations Secretary General Kofi Annan, refused to grant Dallaire’s request to disarm and disband the Interahamwe militia.[7]  The life of the Interahamwe did not end at the termination of Rwanda’s genocide.  Not only did the Interahamwe recruit and launch attacks on Rwanda from the United Nations refugee camps in the former Zaire, but also the Interahamwe continued to operate in the newly formed Democratic Republic of Congo.  No court ever branded the Interahamwe as a criminal organization.

These attempts to make organizations responsible for war crimes marked an opportunity lost. There have been some attempts to address collective responsibility. However, organizations such as corporations are not considered legal persons under international law. Nevertheless,  the public needs to know more about organizational criminality in international law to make this a central topic of conversation.[8]

2.      Crimes Against Humanity

The Gaza War narrative has shifted attention almost entirely to the International Court of Justice (ICJ)[9] and away from the International Criminal Court (ICC)[10]. Yet, the cases before the ICC may be far stronger than the ICJ case. The ICC has indicted and successfully prosecuted individuals for crimes against humanity. Unlike genocide, prosecutors do not need to prove intent for crimes against humanity and other international crimes. Crimes against humanity are defined as widespread or systematic attacks against civilians.[11]. These include a wide array of harms, including murder, torture, and persecution. The evidence of such crimes in Gaza is strong.[12]

Attention to the ICC would likely draw further attention to other issues. Unlike genocide, crimes against humanity does not have a treaty. The International Law Commission has been working on a draft since 2014.[13] The Gaza War should be used as an opportunity to put more pressure on drafting this convention as well as to efforts to expand upon the kinds of crimes covered.[14]

3.      Disproportionality

Crimes against humanity are defined as widespread or systematic attacks against civilians.[15] These include murder, torture, and persecution. The evidence of such crimes in Gaza is overwhelming.[16]

Israel, however, claims the right of self-defense—a right limited by the principle of proportionality.[17] Yet, proportionality should not only be weighed in the context of specific military operations, but also be seen in the broader context of the opposing military strengths and casualties.[18] Proportionality in jus ad bellum (laws governing going to war) should be a major factor in assessing jus in bello (laws governing the conduct of war).[19]

Israel’s military strength dwarfs that of Hamas. According to the CIA World Factbook, Israel has over 170,000 active-duty personnel while Hamas has 30-40,000.[20] Israel has a sophisticated missile defense system, while Hamas has none. In 2023, the U.S. provided $18 billion of Israel’s $46.5 billion military budget.[21] By contrast, Hamas has received increasingly limited support, mainly from Iran.[22]

It is essential to acknowledge, repeatedly, the asymmetrical nature of the war when discussing and reporting on Gaza. Those reports should be followed by making the following distinction: Asymmetry may explain why non-state actors adopt so-called terrorist and other acts, but it does not exempt them from legal and moral accountability and liability.

Finally, a recent historical example of disproportionality proves instructive. Following the 9/11 attacks on the World Trade Center, which killed around 3,000, the U.S. launched a “War on Terror.” That response killed an estimated 4.7 million people.[23] That raises radical questions: what if the U.S. had done nothing in response to the 9/11 attacks?[24]  The data provides a strong case for regarding the response as not worth the loss of nearly 5 million lives.

Israel’s response to the attack on October 7, 2023 (which killed 1,200 Israelis) has killed at least 57,418 people, including around 17,400 children, andinjured 136,261.[25] At what point does the response become unjustified? And who are the main victims of that response?

4.      Atrocities Against Children

Some international treaties cover children, but only in a limited and largely ineffective manner.[26]

Of the 57,000 killed in Gaza, at least 17,000 were children.[27] More than 50,000 Palestinian children have been killed or injured since October 2023, according to UNICEF data.[28] These children had no political or military role.

In 2023, civilian war deaths globally rose 72%, the proportion of women killed doubled, and the proportion of children killed tripled.[29] Physicians in Gaza have reported children with gunshot wounds to the head—injuries that defy categorization as “collateral damage.”[30]

International law was built largely for adults. It lacks a category for the deliberate targeting of children. A new term—atrocity crimes against children—should be considered.[31]

The attention devoted by international criminal jurisdictions to international crimes affecting children has been limited and inconsistent. Crimes involving children are often subsumed under general categories like genocide, war crimes, or crimes against humanity, without adequate recognition of children’s distinct vulnerabilities, psychosocial development, or rights as autonomous victims.

International courts (ICTY, ICTR, ICC) have inconsistently addressed child-specific harms (e.g., child soldiers, sexual violence). Yet, even in Prosecutor v. Thomas Lubanga Dyilo, where child soldier recruitment was central, other harms to children were omitted from the judgment.[32] For too long, international jurisdictions have not highlighted crimes specifically targeting children.

Instead of daily reports of war casualties from Gaza, imagine daily reports of atrocities against Palestinian children. The UN has made some progress in addressing atrocities against children, including the creation of a Special Representative for Children in Armed Conflict [1996](https://example.com/source/1996)[33] and a Monitoring and Reporting Mechanism [2005](https://example.com/source/2005)[34]. The UN is developing a framework that identifies six violations affecting children.[35] Human Rights Watch is leading a campaign of 38 NGOs to propose language for inclusion in the ILC’s Draft Articles on Crimes Against Humanity.[36] The public should be mobilized to applaud and increase the efforts of the UN to address, more specifically, the plight of children in war.

Conclusion

This Article calls for changes in media reporting about the Gaza War. These proposals would help bolster legal reform efforts and would provide a richer and more accurate description of the war. The media can help mobilize public support for ongoing efforts to codify crimes against humanity, to increase reporting on Israel’s overwhelming military power when assessing specific military campaigns, and to focus more on reporting the atrocities against Palestinian children.

However, most notably, unlike the other legal issues discussed above, organizational criminal responsibility lacks a recent comparable legal development. Ironically, attention to organizational criminal responsibility is the most critical issue among those addressed here. It, for example, would lead to looking more deeply into Israeli society and to corporations outside Israel. Within Israel, it will prove difficult for Israeli citizens to deny knowledge or support of the war. Likewise, many global corporations will have difficulty denying their support of Israel. UN Special Rapporteur Albanese recently issued a report citing the support of Israel by many multinational corporations.[37] Caterpillar, for example, supplies bulldozers used to destroy Palestinian homes. It takes many organizations to carry out atrocities.

When reporting and discussing the Gaza War, the media should bring legal developments to the forefront of public attention. However, among the issues covered here, attention to organizational criminal responsibility would do the most to enrich our legal, moral, and political thinking.

Photo credit: Aerial photo showing the scale of Israeli destruction in Gaza by Mahmoud Isleem/Anadolu (Aljazeera)

[1]  Joseph E. Persico, Nuremberg: Infamy on Trial  (New York: Penguin Books, 1994), p. 180.

[2]   Ibid.

[3]   Ibid, p. 181.

[4]  It is important to underscore just how many Nazi suspects the United States held.  The figure of 200,000 indicates that the Allies thought that the complicity in war crimes spread widely among the German population.  Rwanda had held Hutus in prison as suspects for committing genocide and other war crimes.  The international community took the figure of 130,000 Hutus held in Rwanda’s jail as prima facie evidence of wrongdoing by the Rwanda government.  Human rights groups harshly criticized Rwanda for, among other things, holding that many people in prison.

[5] Situation in the State of Palestine, Decision on the Prosecutor’s Application for Warrants of Arrest Against Benjamin Netanyahu and Yoav Gallant, Case No. ICC-01/24-01/24, Pre-Trial Chamber I, ¶¶ 1–5 (Nov. 21, 2024), https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd18034a003.pdf.

[6]   For an attempt to understand the issues from a UN bureaucratic perspective see Michael Barnett, Eyewitness to a Genocide:  The United nations and Rwanda (Ithaca, NY.:  Cornell University Press, 2002).

[7]   Kathleen Berry, “Rwanda and the United Nations: A Case of Active Indifference,” 14 International Network on Holocaust and Genocide, nos. 2-3, pp. 10-20, at 12.

[8] Jaya Élise Bordeleau-Cass, The ‘Accountability Gap’: Holding Corporations Liable for International Crimes, Queen’s Global Justice J. Blog (Oct. 6, 2023), https://globaljustice.queenslaw.ca/news/the-accountability-gap-holding-corporations-liable-for-international-crimes.

[9] South Africa v. Israel, Application Instituting Proceedings, Int’l Ct. Justice (Dec. 29, 2023).

[10]  Khan, Karim A.A. (ICC Prosecutor), Statement on Applications for Warrants of Arrest in the Situation in the State of Palestine, 20 May 2024.   

[11] Rome Statute of the International Criminal Court art. 7(1), July 17, 1998, 2187 U.N.T.S. 90 (defining crimes against humanity).

[12] U.N. Hum. Rts. Council, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Francesca Albanese, U.N. Doc. A/HRC/55/73 (Mar. 5, 2024), https://www.ohchr.org/en/documents/country-reports/ahrc5573-human-rights-situation-palestinian-territories-occupied-1967.

[13] Draft Articles on Prevention and Punishment of Crimes Against Humanity ilc/2019/en/148740.

[14] Serious attention must also be given to bringing order to the potpourri list of eleven crimes against humanity, ranging from murder to apartheid. These crimes, for example, can be grouped into the following categories: crimes of lethal violence, crimes of non-lethal violence, and deprivations of liberty. See Thomas W. Simon, Genocide, Torture, and Terrorism: Ranking International Crimes and Justifying Humanitarian Intervention  [“Crimes Against Humanity” chap.] (Palgrave Macmillan 2015).

[15] Rome Statute of the International Criminal Court art. 7(1), July 17, 1998, 2187 U.N.T.S. 90.

[16] U.N. Human Rights Council, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, Including East Jerusalem, and Israel, ¶¶ 80–103, U.N. Doc. A/HRC/56/25 (June 12, 2024), https://www.ohchr.org/en/documents/country-reports/ahrc5625-report-independent-international-commission-inquiry-occupied.

[17] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 41 (July 8); see also U.N. Charter art. 51.

[18] U.N. Off. of the High Comm’r for Hum. Rts., Indiscriminate and Disproportionate Attacks During the Conflict in Gaza (Oct.–Dec. 2023), U.N. Doc. A/HRC/56/27 (June 19, 2024), https://www.ohchr.org/en/documents/country-reports/ahrc5627-indiscriminate-and-disproportionate-attacks-during-conflict-gaza.

[19] Michael Becker, Proportionality and Necessity in Israel’s Invasion of Gaza, 35 Armed Conflict & Int’l Hum. L. Rev. 157, 174–80 (2024).

[20] CIA World Factbook (2024); SIPRI Military Expenditure Database.

[21] U.S. Cong. Research Serv., Jeremy M. Sharp, U.S. Foreign Aid to Israel 1–2, R44245 (Updated Mar. 1, 2023), https://crsreports.congress.gov/product/pdf/R/R44245.

[22] U.S. Dep’t of State, Country Reports on Terrorism 2022, at 185 (Nov. 2023), https://www.state.gov/reports/country-reports-on-terrorism-2022/.

[23] Watson Institute for International and Public Affairs, Costs of War Project (2023).

[24] General Stanley McChrystal and other high level American military commanders have raised doubts. In retrospect, about the justifications for the war in Afghanistan (Daily Beast interview, August 2021).

[25] Gaza Ministry of Health, Situation Report (July 8, 2025) (on file with Gaza Health Ministry) (reporting 57,575 Palestinians killed and 136,879 injured since October 7, 2023).

[26] See, Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, 2173 U.N.T.S. 222

[27] Ibid.

[28] Statement by UNICEF Regional Director for the Middle East and North Africa, Edouard Beigbeder (May 25, 2025).

[29] Save the Children, Record Rise in Civilian Casualties as Children Pay Heaviest Price in Conflict Zones, Save the Children (May 2024), https://www.savethechildren.net/news/record-rise-civilian-casualties-children-pay-heaviest-price-conflict-zones.

[30] Dr Feroze Sidhwa, 65 Doctors, Nurses and Paramedics: What We Saw in Gaza, New York Times (Oct. 9, 2024) (reporting “nearly every day … a new young child who had been shot in the head … Thirteen in total”), cited in Israel Is Routinely Shooting Children in the Head in Gaza, Democracy Now (Oct. 16 2024).

[31] Cecile Aptel, Atrocity Crimes, Children and International Criminal Courts (2024)

[32] Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment Pursuant to Art. 74 of the Statute (Int’l Crim. Ct. Mar. 14, 2012).

[33] G.A. Res. 51/77, ¶ 35, Promotion and Protection of the Rights of Children (Mar. 20, 1997).

[34] S.C. Res. 1612, ¶ 3, U.N. Doc. S/RES/1612 (July 26, 2005).

[35] Office of the Special Representative of the Secretary-General for Children and Armed Conflict, Six Grave Violations, https://childrenandarmedconflict.un.org/six-grave-violations/

[36] Humanity & Inclusion et al., Justice for Children: A Future Convention on the Prevention and Punishment of Crimes Against Humanity Must Address Grave Violations Against Children, Joint NGO Statement, Oct. 2023, https://www.humanity-inclusion.org.uk/sn_uploads/document/Justice-for-Children-Statement-2023.pdf.

[37] Francesca Albanese, From Economy of Occupation to Economy of Genocide, U.N. Human Rights Council, 59th Sess., U.N. Doc. A/HRC/59/23 (Jun. 30, 2025).