The conflict between Israel and Palestinian militants since the attack launched by the Palestinian Islamic Resistance Movement (Hamas) at the beginning of the week has led to a significant and rising number of casualties on both sides. The war falls under a complex system of international justice that emerged after World War II.
The rules of armed conflict, agreed upon internationally, stem from the Geneva Conventions of 1949, which have been ratified by all United Nations member states and supplemented by provisions issued by international courts concerned with war crimes. A series of treaties govern the treatment of civilians, soldiers, and prisoners of war in a system known generally as "the law of armed conflict" or "international humanitarian law." This law applies to government forces and organized armed groups, including Hamas fighters. If Palestinians alleged to have committed atrocities in Israel and anyone reportedly committing crimes in the occupied Palestinian territories are not brought to justice domestically, the International Criminal Court (ICC) in The Hague is the only international legal body authorized to bring charges. Local courts can apply what is called universal jurisdiction in war crime cases, but this would be limited in scope. The Rome Statute grants the ICC legal authority to investigate crimes alleged to have been committed on the territories of member states or by nationals of these states when local authorities are "unwilling or unable" to do so. The ICC Prosecutor's Office confirmed on Tuesday that his mandate applies to crimes that may have been committed in the current conflict, stating that they continue to collect information.
### What Is the Role of the International Criminal Court?
The ICC, established in The Hague in 2002, is a permanent court that specializes in prosecuting war crimes worldwide. Its jurisdiction includes war crimes, crimes against humanity, and genocide in its 123 member states or perpetrated by nationals of these states. Many major world powers are not members of the court, including China, the United States, Russia, India, and Egypt. The ICC recognizes Palestine as a member state, while Israel rejects the court's jurisdiction and does not engage with it officially. Despite limited budget and staffing, the ICC Prosecutor is already investigating 17 different cases ranging from Ukraine and Afghanistan to Sudan and Myanmar. The court allocated just under one million euros (1.06 million dollars) for investigations in Palestinian territories in 2023 and is seeking additional resources. The ICC has been investigating allegations of war crimes and crimes against humanity in the occupied Palestinian territories since 2021, with no arrest warrants issued related to this investigation. Prosecutors indicated in 2021 that there was a reasonable basis to believe that all parties committed violations, including Israeli forces and Hamas fighters as well as other Palestinian armed groups.
### What Actions May Violate War Crime Laws?
Human Rights Watch, based in New York, pointed to potential war crimes involving the apparent targeting of civilians by Palestinian armed groups, indiscriminate attacks, and taking civilians as hostages, as well as Israeli strikes in Gaza that have resulted in the deaths of hundreds of Palestinians. Omar Shakir, the organization's director for Israel and the Palestinian territories, stated, "The deliberate killing of civilians, hostage-taking, and collective punishment are abhorrent crimes that are unjustifiable." Hostage-taking, killing, and torture are explicitly prohibited under the Geneva Conventions, and the Israeli response may also be subject to investigation for committing war crimes. UN officials and human rights advocacy groups criticized Israeli Defense Minister Yoav Gallant after he announced tightening the blockade to prevent food and fuel from reaching the Gaza Strip, home to 2.3 million residents.
### Do the Geneva Conventions Apply?
U.S. President Joe Biden stated on Tuesday that Israel has the right and duty to respond to what happened, adding that he discussed with Israeli Prime Minister Benjamin Netanyahu "how democratic countries like Israel and the United States can be stronger and more secure when we act under the law." The blockade could be considered a war crime if it targets civilians rather than being a legitimate means to undermine Hamas's military capabilities, or if it is found to be disproportionate. Attacks on military targets must be proportional under international law, meaning they should not result in excessive loss of civilian life or damage to civilian property compared to the expected direct military advantage. Nick Kaufman, a UK-born Israeli defense attorney at the ICC, pointed to Hamas gunmen killing hundreds attending a dance party and civilians in several population centers near the Gaza border as a clear focus of a war crimes case.
