The current conflict engulfing Israel and Palestine raises significant issues of international law and policy. This is part one in an anticipated two-part series that will discuss some of the relevant legal questions before the International Criminal Court (ICC; Part I) and the International Court of Justice (ICJ; Part II). With both courts located in The Hague, and both having jurisdiction over the crime of genocide, the difference between them is sometimes confusing. This article will not address all aspects of the conflict, particularly in the West Bank. Rather, it will address the jurisdiction, applicable law, and implications of the Palestine referral to the ICC for the Court itself and the international community as a whole. It will conclude that the ICC’s ability – or lack thereof – to quickly and evenhandedly address the crimes committed during the ongoing conflict may have real consequences on the future success of the Court, and pose a challenge to its legitimacy.
Jurisdiction of the International Criminal Court over the Current Conflict
The ICC is the world’s first – and only – permanent international criminal court. It was established in 1998 by a treaty known as the Rome Statute and became operational in 2002 with the deposit of 66 instruments of ratification. As of this writing, it has 124 States Parties. Four crimes are within the jurisdiction of the ICC: Aggression, crimes against humanity, genocide, and war crimes. Only the latter three are relevant to the current situation as the jurisdictional regime regarding the crime of aggression excludes its potential application.
Palestine endeavored to join the ICC in 2009; however, the ICC’s first Prosecutor demurred, given Palestine’s uncertain status as a State under international law. Following the adoption of Resolution 67/19 in November 2012, granting Palestine non-member observer state status in the U.N. General Assembly, however, Palestine successfully deposited both a declaration accepting the ICC’s jurisdiction and an instrument of accession. Prosecutor Fatou Bensouda thereupon opened a Preliminary Examination in January 2015, and subsequently received a referral from Palestine on May 18, 2018, asking her “to investigate. . . past, ongoing, and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.” The situation was assigned to a Pre-Trial Chamber (PTC).
On December 20, 2019, Prosecutor Bensouda concluded that there was a “reasonable basis” to believe that war crimes had been committed by the Israeli Defense Forces (IDF), Hamas, and Palestinian armed groups under the war crimes provisions of the Statute in Article 8, and opened an investigation. No allegations of crimes against humanity or genocide were included. She then applied for a preliminary ruling on jurisdiction from the PTC, seeking confirmation of the scope and territorial jurisdictional ambit of the case under article 12(2)(a) of the Rome Statute. (Prosecutor Palestine Request, at ¶ 5).
While Prosecutor Bensouda was recently criticized for requesting a preliminary ruling on jurisdiction, settling the jurisdictional question seemed both necessary and prudent. To begin with, given the Court’s limited resources, it was important to ensure that any cases she might bring would not fail on that basis. Additionally, both the Afghanistan and Palestine situations had infuriated the United States, which was threatening the Court and the Prosecutor herself. The United States imposed visa bans on ICC personnel in an effort to deter the Court from acting in either the Afghanistan or the Palestine situations and the decision to proceed in the Afghanistan situation resulted in the imposition of punishing sanctions against Prosecutor Bensouda and one of her deputies. While she continued her work, the U.S. sanctions posed a real threat to her and the ICC. Finally, in addition to the U.S. and Israel, other States had objected either to Palestine’s accession or to the use of the term “State of Palestine” at the ICC, including Canada, Germany, the Netherlands, and the United Kingdom. Her concern seems valid, given that fifty-seven amicus briefs were submitted by NGOs, individuals, States, and organizations, and seven ICC States Parties opined that the ICC should decline (or did not have) jurisdiction to proceed.
On February 5, 2021, Pre-Trial Chamber I found, by Majority, that Palestine is a State Party to the Rome Statute, had properly conferred jurisdiction upon the ICC by acceding to the Rome Statute, and that the Court’s territorial jurisdiction extended to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. Although Israeli officials opined that any ICC investigation of its nationals represented “undiluted antisemitism” given Israel’s status as a non-State Party, in fact many situations at the Court involve the commission of crimes by non-State Party nationals on the territory of States Parties, including the situation in Ukraine, in which arrest warrants have been issued for Russian President Vladmir Putin and Minister Maria Lvova Belova for crimes allegedly carried out in Ukraine.
Can Members of Hamas be Prosecuted at the ICC?
Jurisdiction. Because Palestine joined the Court, the ICC has jurisdiction over crimes committed by Palestinian nationals, including Hamas. ICC Prosecutor Karim A.A. Khan has visited Israel and the West Bank, and already raised questions about murder, sexual and gender-based violence, hostage taking, inhumane treatment, and torture, and announced his intention to investigate those crimes. The ICC is a court of last, not first resort, however. If Israeli authorities can identify specific perpetrators, it would have the best chance both of apprehending perpetrators and bringing cases against them. In addition, under the principle of complementarity, if Israel opens an investigation into a specific individual for the conduct also being investigated by the ICC, the Court must relinquish its jurisdiction. Prosecutor Khan has announced his willingness to work with national authorities.
War Crimes. The publicly available evidence suggests that the final death toll from the October 7 attack is now thought to be 695 Israeli civilians, including 36 children, as well as 373 security forces and 71 foreigners. Crimes included killings, torture, rape and sexual violence, arbitrary arrest and detention, hostage taking, and other inhumane acts. These could be charged under Article 8 of the Rome Statute as war crimes. Because Hamas is a non-State actor, the charges would be brought under the provisions of Article 8 applicable in non-international armed conflict, although some have argued that the conflict is international in nature due to Israel’s status as an occupying power (and the Prosecutor raised both possibilities in her earlier conclusions). While the ICC cannot charge individuals with terrorism as an offense, Israel could. Under the Rome Statute, the Prosecutor does not need to show that an organization or a State had a policy to commit war crimes in order to charge individuals with their commission. This is why war crimes charges are “easier” to levy at the Court than charges of crimes against humanity or genocide.
Crimes Against Humanity. To convict on crimes against humanity charges the ICC Prosecutor would need to show that the October 7 attack was part of a widespread or systematic attack, directed against the civilian population, and was carried out pursuant to an organizational policy to do so. As Trial Chamber X recently held in Prosecutor v. Ongwen, the attack must consist of a “course of conduct involving the multiple commission of acts referred to in Article 7(1),” meaning that the Court will evaluate them based upon an “overall flow or events,” including a quantitative threshold involving a certain number of acts.” Id. ¶ 2674. As the ICTY held in Prosecutor v. Kunarac, the court will look at “the consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes . . .” in evaluating whether the attack is either widespread or systematic. Id. ¶ 415.
While it may seem obvious that the Hamas leadership intended to attack civilians and commit the crimes alleged, particularly given plans that were recently discovered, its penchant for firing indiscriminately at Israeli territories, and the large number of civilians killed, harmed, or taken hostage during the October 7th attack, at the ICC, this might be difficult to demonstrate in an individual case, particularly as to individuals remote from the scene of specific crimes. The ICC uses modes of liability under Article 25 of the Rome Statute that have led to acquittals in several cases as the Chambers have imposed high mens rea standards and required a tight connection between the perpetration of the crimes and the leaders setting in motion the attack. This has been particularly true in cases involving sexual and gender-based violence, where acquittals in the Katanga and Bemba cases show that it may be difficult to convict top commanders if they are not personally involved in perpetrating offenses themselves. Unlike the ICTY, which used theories of “joint criminal enterprise” to address the culpability of high-ranking but remote commanders, or U.S. conspiracy law, the ICC uses a theory of co-perpetration. This might mean that top Hamas commanders could be successfully prosecuted of some crimes at the ICC but not others. The key will be connecting them to the crimes committed on the ground. This difficulty of proof will also be true of any charges against Israelis.
Genocide. In terms of genocide, Article 6 of the ICC Statute tracks Article II of the Genocide Convention. Thus, it must be proven beyond a reasonable doubt, that the accused had the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Under the caselaw of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), hateful language, or disparaging words alone, are not enough. Like the Genocide Convention, Article 6 sets out five ways in which a defendant can commit genocide including killing members of the group; causing them serious mental or bodily harm; deliberately inflicting conditions of life calculated to bring about the group’s physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.
While some of the acts occurring during the October 7th attack fall within the ambit of Article 6 (including killings and causing serious bodily or mental harm to members of the group), it may be hard to establish the necessary specific intent at the ICC, as well as meet the substantiality requirement, discussed in greater detail below. Although genocide, unlike crimes against humanity, does not have a “policy” element, there is a requirement that there be a “manifest pattern of similar conduct” contained in the Court’s Elements of Crimes.
Can Israeli soldiers or civilian leaders be Prosecuted at the ICC?
Jurisdiction. Israel invited Prosecutor Khan to visit, which was surprising given its prior objections to jurisdiction. As noted above, to the extent that Israeli officials ordered, perpetrated, or were complicit in the commission of ICC crimes on the territory of Palestine, the ICC has jurisdiction over the crimes, although it may have trouble acquiring personal jurisdiction over alleged perpetrators. Under the Oslo Accords (which have been repudiated by President Abbas) the Palestinian Authority relinquished criminal jurisdiction over Israeli nationals, meaning that the only possible forum for the investigation and prosecution of Israeli nationals accused of ICC crimes is the ICC, or any investigations conducted by Israeli authorities.
War Crimes. Although military lawyers have posted many essays arguing for the legality of specific military operations, and Israel has attempted to justify its military choices in conducting its aerial bombardment campaign, given the high death toll, the use of indiscriminate weapons such as 2000 pound “dumb” bombs and (allegedly) white phosphorus, the targeting of schools, universities, hospitals, and journalists, and deliberate deprivation of food, water, fuel, and medicine, as well as inhumane treatment of detainees, it is difficult not to conclude that there have been violations of international humanitarian law. As noted above, while there is some debate regarding whether the conflict should be classified as international (given Israel’s status as an occupying power) or non-international (given Hamas’s status as a non-State actor), the ICC Statute applies to both types of conflicts (which can occur at the same time) and in any event, the fundamental obligations of protecting civilians apply in either case.
Israel has surpassed its kill rate in prior conflicts, the counterinsurgency campaigns in Iraq and Syria that were waged under similarly challenging conditions of urban warfare and exceeds casualty levels in Russia’s invasion of Ukraine. Brianna Rosen has observed that Israel is using artificial intelligence to generate extensive targeting lists, far more than in the past, using an AI powered facial recognition system known as Wolf Pack, and has already admitted to targeting errors, including shooting Israeli hostages fleeing Hamas.
In assessing the legality of Israel’s aerial bombardment campaign, in addition to the text of the Rome Statute and the rate and scope of the damage inflicted, the jurisprudence of other international tribunals may be useful. In the Martić case, for example, the accused was convicted of crimes against humanity and war crimes for, among other things, ordering the shelling of Zagreb using the M-87 Orkan Rocket, which the ICTY found to be an indiscriminate weapon. The casualties in that case were modest compared to the current campaign: 7 dead, 124 severely injured, and 87 lightly injured. The Trial Chamber found that “a direct attack on civilians may be inferred from the indiscriminate character of the weapon used” Prosecutor v. Milan Martić, ¶ 471. Conversely, during the 1999 NATO bombing campaign of Serbia, NATO flew 38,400 sorties, including 10,484 strike sorties, releasing 23,614 air munitions. During three months of continuous bombing, however, because only 250-500 civilians were killed, a Committee of Inquiry charged with investigating allegations of NATO war crimes concluded that there was no evidence to “indicate that NATO may have conducted a campaign aimed at causing substantial civilian casualties either directly or indirectly.” (¶54). While ICTY precedent does not bind the ICC, it may be a source of customary international law under Article 21(1)(b) of the Rome Statute.
Crimes against humanity and/or genocide? As noted above, to show crimes against humanity, a widespread or systematic attack involving the crimes in Article 7 will need to be established, and it must be shown that attack was directed against the civilian population carried out pursuant to a State or organizational policy. In this regard, in addition to the punishing toll of the war itself, statements from top leaders have given rise to serious concerns that a policy of ethnic cleansing is the goal of the current campaign.
For example, Israel’s far-right finance minister, Bezalel Smotrich stated the “voluntary migration” of Palestinians is the “right humanitarian solution” for Gaza, echoing the views of others including Danny Danon, a former Israeli Ambassador to the United Nations and Knesset member Ram Ben-Barak who published a commentary to this effect in the Wall Street Journal. Israel’s Defense minister Yoav Gallant stated that “we are fighting human animals” and announced a “complete siege” on Gaza with no electricity, no food, no fuel.” Major General Ghassan Alian repeated this language, adding “there will be no electricity and no water [in Gaza], there will only be destruction. You wanted hell, you will get hell,” and Prime Minister Netanyahu recently rejected all attempts at a ceasefire or the establishment of a Palestinian state.
These comments, combined with the conduct of the war itself, have also led to allegations of genocide. Following the ICTY, the ICC has thus far taken the position that ethnic cleansing may be genocidal in nature or may constitute the crime against humanity of persecution. The only situation in which genocide has been charged at the ICC is in the 2010 arrest warrant against former President Omar Al Bashir of Sudan, in which Pre-Trial Chamber I found that there were “reasonable grounds to believe” (the standard for issuing an arrest warrant under Article 58 of the Statute) that various acts of genocide had been committed by Al Bashir as regards the ethnic cleansing of Darfur regarding the Fur, Masalit and Zaghawa tribes. PTC I found, inter alia, that the “acts of contamination of water pumps and forcible transfer coupled by resettlement by member (sic) of other tribes [at the encouragement of the government of Sudan] were committed in furtherance of the genocidal policy, and that the conditions of life inflicted on Fur, Masalit and Zaghawa groups were calculated to bring about the physical destruction of a part of those ethnic groups.” Prosecutor v. Al Bashir, Second Decision on the Prosecution’s Application for a Warrant of Arrest, ¶ 38 (July 12, 2010).
At the ICTY, although the Serb ethnic cleansing campaign was originally described as genocidal by the U.N. General Assembly, the ICTY later declined to find that specific incidents were genocidal, even if the accused had made racist and dehumanizing remarks. A substantiality test was imposed and reaffirmed by the Appeals Chamber most recently in Prosecutor v. Mladić (2021), albeit over a significant dissent. Indeed, the ICTY consistently refused to find that the ethnic cleansing campaign in Bosnia constituted a genocide, even though approximately 100,000 civilians had been killed and two million people, more than half the population, were forced to flee their homes. The only exception was the massacre at Srebrenica, at which approximately 7,000-8,000 men and boys were separated from women and girls and executed in cold blood. In that instance, the tribunal looked not only to the number of individuals killed, but their importance to the survival of the group as a whole, suggesting that substantiality had both a quantitative and a qualitative dimension. The impact on Gaza’s women and girls has been disproportionate, and it has been described as “a graveyard for children.” This as well as attacks on minority communities, such as the tiny Christian community in Gaza, raises serious concerns that the attack on Gaza, at least in certain respects, represents a “Srebrenica moment,” that could fulfill even the strict conditions on the crimes of genocide imposed by the ICTY.
That question, and others, are now before the International Court of Justice not only in the case brought by South Africa against Israel under the Genocide Convention, but in the Gambia v. Myanmar and Ukraine v. Russia cases. I will address the relationship between the civil and criminal cases before the various institutions in a subsequent Post.
Conclusion
The ICC has jurisdiction over the Palestine situation, with respect to the actions of Hamas and the actions of Israelis regarding the war in Gaza, and the situation in the West Bank and East Jerusalem. In addition to Palestine’s self-referral, seven ICC States Parties have now asked the Prosecutor to investigate. South Africa referred the situation on behalf of itself, Bangladesh, Bolivia, Comoros, and Djibouti on November 17, 2023, and Mexico and Chile submitted a referral on January 18, 2024.
Hamas has argued it was fighting an illegal occupation, which justified its actions, although it has now admitted to “faults.” Israel has defended its actions on the basis of military necessity and argued that it is complying with humanitarian law in its campaign to totally destroy Hamas. The ICC does not condemn countries, it takes up the guilt or innocence of specific individuals. Not all members of Hamas will be charged or found guilty of ICC crimes; the same is true of Israelis. Under the Rome Statute, the official position of the accused is not a defense (article 27), following orders is not a defense (unless obeying a non-manifestly unlawful order in the context of war crimes)(article 33), and ignorance of the law is not a defense (article 32(2)). While individuals can assert the defenses in Article 31 of the Rome Statute, including self-defense in Article 31(1)(c), the defense must be reasonable and respond to an “imminent and unlawful use of force in a manner proportionate to the degree of danger to the person(s) protected.” Being involved in a “defensive operation conducted by forces,” does not by itself constitute a defense. In other words, committing ICC crimes on the theory that the other side is committing them does not exclude the criminal responsibility of the accused.
The situation unfolding in Gaza resembles what I have termed an “atrocity cascade,” in which a generally poor human rights situation deteriorates to the point that crimes against humanity may be committed even prior to the onset of armed conflict; and when the armed conflict does break out, it is often accompanied by the commission of crimes against humanity and even genocide. Syria is a textbook example, as was the war in the former Yugoslavia. The war in Gaza appears to be following the same awful trajectory. The Hamas attack was stunning in its ferocity, and the Israeli response has been overwhelming. The Palestinian death toll in Gaza has “soared past 25,000,” and the “deaths, destruction and displacement from the war are without precedent.” Eighty-five percent of Gaza’s population has been displaced, 65,000 residential units have been destroyed or rendered uninhabitable and another 290,000 have been damaged. Twenty-three out of 36 hospitals have been rendered inoperable, universities have been demolished, water production is 7 percent of the prewar supply, and 1 in 4 Gazans are starving.
The ICC faces an existential challenge with respect to the Palestine situation. There is a widespread perception that the Court has been dragging its feet for some time, and that there is an urgent need for swift action now. Prosecutor Khan’s full-throated condemnation of the Hamas attack, unaccompanied by a similarly harsh response to Israel’s military operations, as well as his inability to enter Gaza to investigate (because Israel will not allow him to do so), has led to concerns about his independence. These are overstated given his creation of a unified team to carry forward the investigation, dedication of resources, and his important earlier trip to Rafah Crossing and powerful statements supporting the need for immediate humanitarian assistance. That said, with eight ICC States Parties now calling for a full investigation, and Belgium offering an additional 5 million Euros in financial support, there is growing pressure on the Prosecutor to act swiftly. The largest regional group at the ICC is the Africa group, which has already been frustrated by the Court’s focus on Africa and threatened a mass withdrawal from the Statute some years ago. The perception of double standards in Gaza has reignited this concern and threatens to undermine the legitimacy and future effectiveness of the Court. Prosecutor Khan received widespread praise for his willingness to indict Russian President Vladimir Putin, even though Russia retaliated against him personally by issuing a warrant for his arrest and is suspected to be behind the recent cyber-attack and other attempts at espionage at the Court. Having shown his mettle and personal courage in the Ukraine case, many hope he will enhance the Court’s prestige and importance by acting boldly to investigate and follow the evidence, wherever it leads, in the Palestine situation.
Professor Leila Nadya Sadat is the James Carr Professor of International Criminal Law at Washington University School of Law, and Former Special Adviser, International Criminal Court Prosecutor on Crimes Against Humanity (2013-2023).
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