The International Criminal Court (ICC) was created to make sure those who commit the most serious of atrocities are punished, in the hopes this would help deter these crimes from happening at all. Unfortunately, the ICC is having the opposite effect. It may even be partly responsible for Hamas’s hostage taking and other war crimes taking place in Gaza now.
The ICC only has jurisdiction in countries that accept it, which Israel does not. But the Palestinians have long desired to use the mechanisms of international justice to hold Israel accountable for what they claim are war crimes. In 2015, the Palestinian Authority acceded to the court with jurisdiction going back to the start of the 2014 Gaza war. In 2020, one of the court’s judicial chambers ruled that the Palestinian Authority did in fact have the right to do this and that the prosecutor could investigate any alleged crimes that took place on the Palestinian side of Israel’s pre-1967 border from 2014 on.
ICC has jurisdiction
Of course the Palestinians want the court to investigate only Israel, but that is not allowed. The ICC’s jurisdiction is territorial – that means when the Palestinians granted the ICC the right to investigate war crimes on its territory, this necessarily includes any crimes they may commit themselves.
The wonder is that this didn’t stop them. Targeting civilians is a war crime. Firing weapons that cannot be aimed such that they are incapable of distinguishing between military and civilian targets is a war crime. And Hamas has been shooting rockets indiscriminately into Israel for years. But either confident that the ICC would indict only Israel, or unconcerned about the consequences should the ICC indict them, too, the Palestinian leadership anxiously campaigned for ICC scrutiny in spite of Hamas’s constant, flagrant violations of humanitarian law.
And it turned out they were right. The ICC did nothing about the ongoing, flagrant violations committed by Hamas. In 2020, after taking years to conduct a preliminary examination and sort through the question of jurisdiction, the ICC prosecutor finally began a full-fledged investigation into the 2014 war. It hasn’t been heard from since.
There is an important difference between war crime allegations against Hamas and those against Israel. Hamas’s crimes are readily apparent, and the legal case is open and shut. The ICC could indict Hamas’s leaders without any further discussion. But it did not.
Allegations that Israel targets civilians or uses disproportionate force are much more difficult to sort out. Even the basic question of whether or not a specific attack that killed civilians was carried out by Israel is often in doubt, as in the case of the Al-Ahli hospital disaster in which Hamas accused Israel. In that case, there was much evidence that the explosion was the result of one of their own missiles malfunctioning.
But even when Israel is indisputably responsible, that still does not prove a war crime. Many questions must first be addressed – what was the actual target of the attack, what intelligence did Israel have, what precautions were taken, and so on. This requires extensive, time-consuming investigation.
By refraining from indicting Hamas for obvious, ongoing war crimes once it had established jurisdiction, the ICC sent a clear message: Hamas gets a free pass. If it commits war crimes, the international legal establishment doesn’t care. And we saw the result on Oct. 7th. Hamas understood it had a green light to fire rockets at civilians, so it progressed from firing rockets to taking hostages and slaughtering civilians in their homes.
Israel may have drawn a parallel conclusion. Since nearly a decade later, nothing has been done regarding the many allegations from 2014, it realizes that the ICC is impotent and easily stonewalled. Israel’s restraint in the current conflict is likely due to political calculations related to retaining international support, with little concern for international criminal law.
It’s one thing to know there is a sheriff somewhere out there who might at some point show up on the scene. In that case you at least have to worry about commiting a crime. But if that sheriff comes on his big white horse, stands there passively watching, then silently rides away after a crime is committed, there will be no more fear of the law. That’s what the ICC has done. By confirming it has jurisdiction over the Palestinian territories but then doing nothing about even the most obvious, flagrant war crimes being committed there, it has reassured perpetrators that they have nothing to fear and given the impression they are doing nothing wrong.
Current ICC prosecutor Karim Khan visited Israel in early December, at which time he met with families of the hostages. He issued a statement saying that investigating war crimes in the current Gaza conflict is a priority for his office.
Allegations against Israel should be addressed via a proper investigation. While this should be done as speedily as possible, fairness and accuracy means it will take time and probably cannot be completed during the war.
ICC must indict Hamas
But allegations against Hamas don’t require any investigation. There is no question that taking civilian hostages is a war crime. It is obvious that this was done with the knowledge and consent of Hamas leaders, as those leaders negotiated over their release and bargained to free some of them during the cease fire. So there is nothing stopping Karim Khan from issuing an ICC indictment of Hamas’s senior leaders today. There has been nothing stopping him since Oct. 8th.
By not taking this step, the ICC is, in effect, condoning Hamas’s conduct. We shouldn’t be surprised, then, that Hamas operates as though it is exempt from following humanitarian law. By proclaiming for itself the lofty, idyllic mission of making the world a better place by punishing those who commit atrocities, the ICC also accepted responsibility to do so. When it doesn’t do its job, the ICC is not just failing to make the world better. By failing to indict Hamas leaders, the ICC is making it worse.