The Israel-Hamas war has placed the International Criminal Court at the heart of a legal dispute. Allegations against both sides could influence the court’s standing in global justice.
The ICC, created in 1998 under the Rome Statute, serves as the only permanent tribunal for international crimes. It handles cases involving crimes against humanity, genocide, and war crimes. The current conflict falls under the latter two categories, as the court’s rules exclude aggression in this situation.
Palestine became an ICC member in 2015 following years of legal debate. Its earlier attempt in 2009 failed due to questions over statehood. After the U.N. General Assembly recognized Palestine as a non-member observer state in 2012, it gained the ability to join the Rome Statute. In 2018, Palestine referred the situation to the ICC, requesting an investigation into alleged crimes in Gaza, the West Bank, and East Jerusalem.
In 2019, former Prosecutor Fatou Bensouda determined there was enough evidence to suggest war crimes by Israeli forces, Hamas, and other Palestinian armed groups. She sought a preliminary ruling on jurisdiction, a step critics called redundant but supporters viewed as necessary to prevent future legal challenges. The Pre-Trial Chamber ruled in 2021 that Palestine qualifies as a state party and that the ICC’s authority covers territories occupied by Israel since 1967.
Israel, which has not ratified the Rome Statute, rejected the investigation as biased. However, the court’s jurisdiction applies to crimes committed on the territory of a member state, regardless of the accused’s nationality. This principle mirrors the ICC’s approach in other cases, such as its arrest warrants for Russian officials over Ukraine.
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Potential prosecution of Hamas leaders
The ICC holds clear authority over Hamas because Palestine is a member. Current Prosecutor Karim Khan has expressed concerns about murder, sexual violence, hostage-taking, and torture during the October 7 attacks. The court follows the principle of complementarity, meaning it must defer if Israel conducts its own credible investigations and prosecutions.
Evidence points to war crimes under Article 8 of the Rome Statute, such as killings and hostage-taking. Since Hamas is a non-state actor, charges would fall under rules for non-international armed conflicts, though some argue Israel’s occupation blurs this distinction.
To prove crimes against humanity, prosecutors must demonstrate the attack was widespread or systematic and part of an organized policy. The court’s strict standards for intent have led to acquittals in past cases, particularly for leaders not directly involved. Genocide charges, requiring proof of intent to destroy a group, would be even more difficult to establish.
Accountability for Israeli officials
The ICC also has jurisdiction over Israeli nationals for crimes committed in Palestinian territory. Israel initially resisted but later invited Prosecutor Khan to visit, though it continues to deny the court’s authority. Under the now-defunct Oslo Accords, the Palestinian Authority had waived criminal jurisdiction over Israelis, leaving the ICC as the only available forum.
Allegations include the use of indiscriminate weapons, attacks on hospitals and schools, and deliberate deprivation of essential supplies. Israel defends its actions as necessary to dismantle Hamas, citing military objectives and adherence to humanitarian law.
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Statements from Israeli leaders have intensified concerns. Finance Minister Bezalel Smotrich described the “voluntary migration” of Palestinians as a humanitarian solution. Defense Minister Yoav Gallant referred to Gazans as “human animals” and imposed a total siege. These remarks, combined with the scale of destruction, have led to accusations of ethnic cleansing and genocide.
The ICC’s handling of former Sudanese President Omar al-Bashir established a precedent for genocide charges, though the court has been cautious. The ICTY convicted only one instance of genocide—the Srebrenica massacre—despite broader ethnic cleansing in Bosnia. The ICC may apply a similar test, assessing both the number of victims and their significance to the group’s survival.
The ICC’s credibility on trial
The Gaza war has become a defining moment for the court. Delays and perceptions of bias, particularly after Prosecutor Khan’s strong condemnation of Hamas contrasted with a more reserved response to Israel’s actions, have drawn criticism. Eight ICC member states, including South Africa and Mexico, have demanded a full investigation. Belgium has committed €5 million to support the effort.
The court’s reputation hangs in the balance. The Africa group, the largest regional bloc at the ICC, previously threatened to withdraw over perceived double standards. The Gaza conflict has revived those concerns. Khan’s decision to indict Russian President Vladimir Putin, despite retaliation, earned praise. Many now expect him to pursue the Palestinian case with the same determination.
How the ICC handles this situation may determine its future role in a world increasingly doubtful of international institutions. Legal challenges like these test the limits of global justice.
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