The International Criminal Court has jurisdiction to investigate war crimes committed on either side of the Israel-Hamas war.
Since Hamas launched its offensive in Israel on October 7th, drawing a swift and emphatic response from the Israeli government of Benjamin Netanyahu, at least 1,400 people in Israel and 5,000 people in Palestine have been killed. Many have been civilians, including hundreds of Israelis at a music festival near the Re’im kibbutz, close to the border with Gaza, and hundreds of Palestinians killed by an explosion at the Al-Ahli Baptist Hospital in Gaza.
While the first atrocity was committed by Hamas fighters, responsibility for the hospital blast has yet to be determined. Investigators will eventually attempt to piece together the truth about both atrocities. But will anyone stand trial for war crimes?
The International Criminal Court has the jurisdiction to investigate potential war crimes in Israel and Palestine. Palestine joined the court in 2015. In 2021, the then prosecutor, Fatou Bensouda, announced the opening of an investigation into crimes alleged to have been committed in the west bank, the Gaza strip and east Jerusalem from June 13th 2014, the date when Palestine declared acceptance of ICC jurisdiction. Between then and early 2023, more than 3,000 people were killed in Palestine and more than 200 in Israel.
Give the current situation in Israel and Gaza, the ICC could take two measures. Tirana Hasan, director of the global rights campaign Human Rights Watch, has written to Karim Khan, the ICC prosecutor, calling on the ICC explicitly to warn Hamas and Israel against committing crimes.
Bensouda did something similar in 2018 when she warned Israel against forcefully evicting a Palestinian community from Khan al-Ahmar, a village in the occupied west bank. She said the eviction could constitute a war crime, as defined in article 8.2 of the ICC treaty, the Rome statute, which prohibits the deportation or transfer of all or parts of the population of the occupied territory. Combined with pressure from local and international communities, a warning of this kind could have a temporary effect, as it did in this case. But, in the event, even though diplomats from many states have tried to discourage the eviction, the Israeli government still wants to proceed.
Secondly, and more importantly, Khan told Reuters press agency on October 12th that the actions of Hamas militants in Israel and Israeli forces in the Gaza strip fall under the jurisdiction of the ICC, even though Israel is not a member state. ‘It’s horrendous what’s going on, what we’re seeing on our television screens. There has to be a legal process to determine criminal responsibility,’ he said.
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Three issues could hinder an ICC investigation: a lack of co-operation by Israel, a lack of financial support from its member states and pressure by countries which feel a solution would be easier to achieve without the involvement of the court and the prospect of war-crimes charges being levelled. This pressure would be dangerous for the ICC’s credibility: it is important for justice and politics to remain independent.
A United Nations commission of inquiry, mandated by the UN Human Rights Council, has been collecting evidence of potential war crimes committed by all sides in Israel and occupied Palestinian territories since October 7th. It has already said there is evidence war crimes have been committed, by Palestinian militants gunning down civilians and taking hostages in Israel and by Israel’s response of putting Gaza in a state of siege, which it has described as appearing to be ‘collective punishment’.
Human Rights Watch has reported ‘multiple airbursts of artillery-fired white phosphorus over the Gaza City port and two rural locations along the Israel-Lebanon border’, which it has attributed to Israel. This could potentially be a war crime; Israel denies the allegation.
On the Palestinian side, the ICC could investigate Hamas, Islamic Jihad or any of the other armed militant factions for allegations of war crimes in Palestine or Israel. On the Israeli side, the court could investigate the leader of the government, Netanyahu, and other officials who could have committed crimes in Palestine. Back in 2019, Netanyahu argued against investigating war-crimes allegations against Israel, asserting that Palestine did not meet the criteria of statehood to accede to the ICC treaty.
States-party to the ICC could call for Hamas and the Israeli government to respect international law. But this has already proved fruitless in the UN Security Council.
The Security Council tried but failed on October 18th to pass a resolution which would have enabled condemnation of the attacks by Hamas and sought the hostages’ release. It would also have called for compliance by all with international humanitarian law. Humanitarian pauses would have provided for the urgent establishment of full, safe and unhindered humanitarian access for the UN, the Red Cross and other humanitarian organisations to Gaza, to enable basic necessities to be supplied to the civilian population.
France and China voted in favour of this resolution but the United Kingdom abstained with Russia and the United States exercised its veto. Article 25 of the ICC treaty however refers to the possibility of investigating people for aiding and abetting others to commit crimes. Any leader supporting leaders or people who commit war crimes could be held accountable too.
The ICC has 123 state signatories. It is now investigating crimes potentially committed in Ukraine by Russia, a permanent member of the Security Council. The Russian president, Vladimir Putin, could not attend the 2023 ‘BRICS’ summit in South Africa for fear of arrest.
There have also been recent calls for the US to ratify the ICC treaty. Armenia is the latest state about to join the court. International criminal law is gaining prominence and awareness of this fact could have a deterrent effect on any leader or person worldwide considering committing war crimes.
Catherine Gegout is an associate professor in international relations at the University of Nottingham. Her major research interests are in international-relations theories, ethics and European politics, with expertise in European foreign and security policies.