Recent developments in the Israel-Gaza conflict have raised concerns about potential war crimes. The United Nations (UN) has declared that there is compelling evidence to suggest that both Hamas and the Israeli military may have committed war crimes since October 7th. Authorities are actively accumulating evidence for possible prosecutions.
The Applicable Laws
All parties involved in the ongoing conflict are subject to a framework of international laws, derived from a system of conventions, treaties, and judgments from war crimes tribunals. These legal principles collectively fall under the umbrella of “international humanitarian law” or the “law of armed conflict.”
These laws primarily serve two fundamental purposes: safeguarding non-combatants, including civilians and surrendered soldiers, and restricting the methods of warfare employed by belligerents. The origins of these rules trace back to 19th-century treaties but have since evolved significantly, with the 1949 Geneva Conventions, born in the aftermath of the Second World War, placing a distinct emphasis on the protection of civilians. Additional protocols have been introduced over the years, addressing specific weapon types.
Moreover, international jurisprudence from various tribunals, such as the one that prosecuted individuals involved in the 1994 Rwandan genocide, has expanded the interpretation of these laws. Notably, it was the first tribunal to establish that rape could constitute a weapon of war and genocide.
Israel has not ratified certain protocols within the conventions, including those relating to collective punishments. However, many countries, including the United States, consider these provisions to be customary international law, binding on all nations.
War Crimes Evident in the Conflict
The UN has reported instances of war crimes committed during the Israel-Gaza conflict. Hamas, in particular, is accused of indiscriminately killing over 1,400 non-combatants, including children, and abducting approximately 200 individuals as hostages and human shields in Gaza. These actions are in violation of international humanitarian law, with “war crimes” being the appropriate label.
Additionally, legal experts argue that Hamas and other groups, such as Islamic Jihad, may be held accountable for firing thousands of rockets from Gaza into Israel, potentially constituting war crimes.
On the other side, the UN has also raised concerns about Israel’s actions, especially regarding the blockade of Gaza, which may amount to the war crime of collective punishment. The International Committee of the Red Cross has supported this viewpoint, stating that the Israeli authorities’ instructions for the population to evacuate their homes in Gaza, coupled with the siege that restricts access to essential resources, do not align with international humanitarian law.
Amnesty International has documented what it describes as “unlawful Israeli attacks,” including indiscriminate ones that resulted in significant civilian casualties, suggesting that these incidents should be investigated as war crimes.
Human Rights Watch has also asserted that multiple war crimes have been committed throughout the Israel-Palestine conflict, expressing concerns about both Israeli forces and Palestinian armed groups engaging in unlawful indiscriminate attacks causing harm to civilians.
The Jurisdiction for Prosecution
The International Criminal Court (ICC) in The Hague, a permanent court with jurisdiction over war crimes, crimes against humanity, and genocide, steps in when national jurisdictions fail to prosecute. Notably, the ICC recognized Palestine as a member in 2015, which led the Palestinian authorities to request an ICC investigation into Israel’s actions in Gaza and the continued construction of Israeli settlements in the West Bank and East Jerusalem.
Israel contests the ICC’s authority, arguing that it didn’t sign the Rome Statute that established the court in 2002. The United States has aligned itself with this position, maintaining that “Israel is not a party to the ICC,” and that “the Palestinians do not qualify as a sovereign state.”
Despite these objections, the ICC Chamber of Judges confirmed the court’s jurisdiction in the West Bank, Gaza, and East Jerusalem. Subsequently, the former ICC prosecutor, Fatou Bensouda, initiated a formal investigation into the matter, citing five years of meticulous preliminary examination that concluded with the determination that war crimes were being or had been committed in these areas.
Although this investigation continued under Bensouda, progress has been less visible since she left her post in June 2021.
Current ICC Prosecutor’s Stance
Karim Khan, the current ICC prosecutor, has recently reaffirmed the court’s commitment to ongoing investigations related to the Israel-Palestine conflict. He conducted a visit to Gaza’s Rafah border crossing with Egypt and emphasized the importance of upholding international legal principles. Khan likened the situation to the horrors of the Holocaust, urging governments to support the established international legal framework born from the aftermath of World War II.
Khan emphasized that humanitarian relief supplies must reach civilians without impediment, highlighting the rights outlined in the Geneva Conventions. He expressed determination in pursuing investigations despite Israel’s non-cooperation and its prohibition on ICC investigators traveling to the country or the occupied territories.
Global Support for ICC Prosecution
While only a few countries, such as South Africa, Switzerland, and Liechtenstein, have explicitly called for ICC involvement, international silence on this issue contrasts with the widespread demand from European governments for ICC investigations into Russian war crimes in Ukraine.
Israel, however, appears deeply concerned about the prospect of an ICC investigation. The potential for international arrest warrants and trials in The Hague for Israeli military officials and politicians poses a significant worry. Israel traditionally relied on the protection of the United States in international bodies, with the U.S. using its veto power in the UN Security Council. However, the ICC’s jurisdiction is not influenced
