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The ICC is investigating violence in Israel and Palestine

Israel doesn’t recognize the court’s jurisdiction – but it should.


Photo: International Criminal Court, The Hague (jbdodane)


On October 7, the terrorist group Hamas launched a surprise attack on Israel, killing an estimated 1,300 people and taking approximately 200 people as hostages. Many more Israelis are injured and countless others are reeling from the trauma of these atrocities. 

Reports indicate Hamas intentionally targeted civilians and civilian infrastructure, including schools and youth centers. Targeting civilians and taking hostages are illegal under several bodies of international law, including the Geneva Conventions.


As Israel launched counterstrikes the same day as the Hamas attack, Amnesty International’s secretary general Agnès Callamard urged both Israel and Hamas to “abide by international law and make every effort to avoid further civilian bloodshed.” An open letter from Israeli international law experts echoed Callamard’s words, stressing that “all parties to an armed conflict must comply with norms of international law in general and the law of armed conflict in particular, including the prohibition on indiscriminate attacks and measures targeting civilians.”


Israel has a right to defend itself – but that doesn’t mean it can violate international law


In a formal declaration of war on October 8, Israeli prime minister Benjamin Netanyahu threatened to reduce “all of the places which Hamas is deployed, hiding and operating in … into rubble” – regardless of the risk to civilians.


The next day, October 9, Netanyahu’s defense minister, Yoav Gallant, announced a “full siege” on Gaza, which is home to roughly 2.2 million people, half of them children. “No electricity, no food, no fuel” would flow to Gaza, Gallant said. His justification for this policy was chilling: “We are fighting animals, and we will act accordingly.”


Amnesty International swiftly objected. Callamard described the blockade as “collective punishment of Gaza’s civilian population,” adding that it “amounts to a war crime – it is cruel and inhumane.” 


Palestine’s U.N. envoy Riyad Mansour went a step further in a letter to the U.N. Security Council. “Such blatant dehumanization,” he wrote, “and attempts to bomb a people into submission, to use starvation as a method of warfare, and to eradicate their national existence are nothing less than genocidal.”


Israel has a right to defend itself from future attack and victims and their families have a right to justice, to be sure. But Israel doesn’t have a right to violate international law in the process, as the International Committee of the Red Cross (ICRC) expressed in a rare public statement on October 13. Political scientist and Middle East expert Marc Lynch elaborates, “There is no Israel exception to international law, no sidebar that allows countries to commit war crimes if war crimes were done unto it. Palestinian children are children who bear no responsibility for the decisions of the Hamas leadership.” 


Historically, we have seen more violations of the law of armed conflict when the other side also violates, as James Morrow demonstrates in an American Political Science Review article. When states engage in such “reciprocity,” civilians lose.


What is the ICC doing?


Despite evidence of atrocities being committed in Israel and Palestine, the chief prosecutor of the International Criminal Court (ICC) Karim Khan didn’t comment on the situation for days. This is highly unusual in a context where the court already has an investigation ongoing. As international law scholar Rebecca Hamilton pointed out, the prosecutor responded in less than 24 hours to Russia’s full-scale invasion of Ukraine in February 2022. Why was this time different?


ICC experts like Mark Kersten speculated the prosecutor’s initial silence about the latest Israel-Gaza war was due to opposition by Western states, especially the United States, to the court’s nearly decade-long atrocity crimes probe in Palestine. This is in contrast to the court’s investigation in Ukraine, which has substantial support from Western allies, including the United States.


After nearly a week, Khan broke his silence, giving interviews to Reuters and the BBC, and making a brief statement. Khan affirmed the court has jurisdiction over any war crimes, crimes against humanity, and genocide committed by Palestinians in Israel or by Israelis in Palestine.


How does the ICC have jurisdiction over Israel, a nonmember?


The ICC’s jurisdiction over this latest Israel-Gaza war originates in Palestine’s declaration of acceptance of jurisdiction from June 2014 onward and its subsequent ratification of the Rome Statute, the court’s founding treaty, in January 2015. Since 2014, suspected war crimes, crimes against humanity, and genocide by Palestinian nationals, inside and outside Palestine are within the court’s jurisdiction. Allegations of these abuses by other states’ nationals on Palestinian territory are also within the court’s jurisdiction.


Israel doesn’t recognize the court’s authority over its nationals because it isn’t a party to the Rome Statute. The United States, also not a member, likewise doesn’t recognize the court’s jurisdiction over its ally Israel for alleged atrocities in Palestine or over itself for suspected abuses in Afghanistan. But again, what matters legally is that Israeli forces are accused of abuses on the territory of Palestine, an ICC member. Likewise, U.S. personnel are accused of abuses on the territory of Afghanistan, an ICC member. (As I wrote in my first piece for Good Authority, the United States is willing to bend the rules, supporting the court’s investigation into abuses by Russia in Ukraine, though Russia is also not a court member. And while you’re in the archive, check out my deep-dive explainer into the ICC’s jurisdiction in Palestine: “The ICC says it can investigate Israel’s alleged war crimes in the Palestinian territories. Netanyahu and Biden object.”)


Israel should support the ICC and its jurisdiction in Palestine because while it means the court can investigate Israelis, it also means the court can investigate Hamas fighters.


What current actions is the ICC likely to investigate?


Despite its obligations under international law, Israel has refused to lift the blockade on Gaza until Hamas releases Israeli hostages. Hamas has yet to do so, and may not do so, as my fellow Good Authority contributor Danielle Gilbert discusses in her recent piece. So Israel and Hamas are continuing to violate international humanitarian law.


The ICC will likely investigate, and later prosecute, Hamas’s killings and hostage taking as war crimes. The ICC may also investigate, and later prosecute, Israel’s blockade and bombing campaign as war crimes. Besides the blockade and the bombs, Israel is accused of using white phosphorus in its military operations in Gaza. On its own, the use of white phosphorus isn’t illegal under international law. But given how densely populated Gaza is, using this chemical weapon “violates the international humanitarian law prohibition on putting civilians at unnecessary risk,” Human Rights Watch says. The ICC may also consider this dangerous practice.


However these investigations proceed, Israel and Hamas should abide by U.N. secretary general António Guterres’s appeal: “To Hamas, the hostages must be immediately released without conditions. To Israel, rapid and unimpeded access for humanitarian aid must be granted for humanitarian supplies and workers for the sake of the civilians in Gaza.”


Final remarks


While this in no way compares to the situation in Israel and Palestine, I think it’s important to acknowledge that the past couple of years haven’t been an easy time to teach international politics, law, and human rights. Speaking up, especially on Israel-Palestine, is risky in such deeply polarized times, including on U.S. college campuses. If my own students hadn’t raised Israel-Palestine in our regular “human rights in the news” portion of class, I don’t think I would have initiated discussion of the conflict. I feared that reports about polarization and victimization on U.S. college campuses would make it difficult to have meaningful and informed discussions on the topic. But my students showed me otherwise. I’m really proud of the respectful and balanced conversation we had. 


I’ll close with a reminder – to myself, to you, and to my students – from the ICRC: “In international humanitarian law – the law of armed conflict – there is no hierarchy in pain and suffering. These rules exist to help preserve humanity in the darkest moments, and they desperately need to be followed today. They are and should remain our compass to ensure that we put humanity first.”

Kelebogile Zvobgo - October 18, 2023

Originally published in Good Authority, cc: 4.0

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