International law takes a special interest in war. Where there is an armed conflict or an occupation it is not enough to hope vaguely that human rights will be respected and for the UN or a special rapporteur to issue a cross report if they are not. War warrants a much fiercer international response, and in recognition of this, the International Criminal Court (ICC) was established in 2002, filling an apparent need after tribunals were set up in the 1990s to prosecute atrocities committed during the wars that followed the break-up of Yugoslavia and the Rwandan genocide. The ICC has the power to pursue those who are plausibly alleged to have committed genocide, crimes against humanity, various (specified) war crimes and, more recently, the crime of aggression (‘the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state’). The attacks by Hamas on Israel on 7 October and Israel’s response in the weeks since then offer clear evidence of a series of such crimes – but which ones exactly, their extent, by whom they were committed and in what sort of conflict remain to be proved. These are matters for the ICC prosecutor and for the court itself, if the matter comes before it – and the enormity of the conflict suggests that it will.
The incursion by Hamas into Israel went far beyond ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’ in which the ICC has no interest. The assault involved at very least the intentional targeting of civilians, attacks on civilian objects that have no military purpose, the pillaging of towns and the taking of civilian hostages – all of which are prohibited under the Rome Statute that set up the ICC, and are of particular interest to prosecutors when committed ‘as part of a plan or policy or as part of a large-scale commission of such crimes’.
Who is responsible for such crimes if they are proved? The ICC goes after individuals, not governments or other political entities, but under the rules of international law it can only do so if the relevant state has granted it jurisdiction, or the UN Security Council has referred a situation to it. Israel is not a signatory to the ICC, but Palestine acceded to the Rome Statute in 2015, so the court has jurisdiction over acts committed on its territory and affecting its nationals. Two years ago, the ICC began an investigation into possible war crimes in the Occupied Territories since 2014, and the court’s chief prosecutor, Karim Khan KC, has confirmed since the October attacks that his jurisdiction also extends to ‘any Rome Statute crimes committed by Palestinian nationals or the nationals of any state parties on Israeli territory, if that is proven’. This covers individual acts, those carried out by members of Hamas or another organisation, such as Islamic Jihad, and possibly those of individuals acting alone, if the conflict gave them the opportunity.
Although the ICC is organised around personal responsibility, it has a particular interest in the instigators of such crimes. The key provision here is Article 28 of the Rome Statute, which sets out the responsibility of military commanders and others who have effective control and authority over those actually committing the crimes. It seems unlikely that Hamas’s senior leaders can avoid personal responsibility under this provision, or that its military planners will be able successfully to claim that their military force conducted an impeccable, targeted operation while all around them opportunistic civilians and rival militias made bloody mayhem. In any event, individual responsibility will attach to those who were in command and who did not do what was within their power to prevent these crimes.
Although Israel is not a party to the ICC, the prosecutor can still investigate its actions, as long as the crimes happened in a territory – such as Palestine – that is. The ICC has already rejected a proposition put to it in 2021 by the then prosecutor, Fatou Bensouda, that the Occupied Territories did not constitute a state and thus Palestine could not be a state party. The court’s decision was condemned by Israel’s prime minister, Benjamin Netanyahu, as ‘pure antisemitism’. A ‘court set up to prevent atrocities like the Nazi Holocaust against the Jews’ was now, he said, ‘targeting the one state of the Jews’. The ruling means that Khan and his team can investigate and issue warrants for the arrest and trial of senior Israeli personnel. Such an outcome would at least restrict which countries any Israeli leaders who were indicted would be able to travel to, and could well lead to trial and imprisonment.
The difference between the two belligerent forces has become more emphatic with each day that has passed since 7 October. Yes, Hamas has continued to fire rockets into Israel. But its main act of provocation remains that one-day spectacle, which combined military activity with clear war crimes. Israel has been methodically engaging in military actions within Gaza that cumulatively appear to breach many of the provisions of the Rome Statute as well as pre-existing settled international humanitarian law, a code that has developed over time and goes beyond the crimes listed in the Rome Statute.
All agree that Israel has a right to defend itself, though there are many differences of opinion among lawyers as to the basis for this. What no one contests, however, is that serious violations of humanitarian law by your opponent do not give you licence to do the same to them. The crimes set out in the Rome Charter and in customary law all concern attacks on civilians. In its assault on Gaza Israel has committed many of the same potential crimes as the Hamas operatives. But Israel’s enormous military capacity gives it extra opportunities for violating international law. Area bombardment, for example, is prohibited because it entails indiscriminate attacks that fail to distinguish between military objectives and civilians or civilian objects.
Among the acts prohibited under the Rome Statute as war crimes in an international armed conflict are ‘intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’; ‘intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations’; ‘intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’; ‘attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives’; ‘the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory’; ‘intentionally directing attacks against buildings, material, medical units and transport and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law’; and ‘intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’.
Many of these are prohibited even if the conflict is classed as non-international, either in the Rome Statute or through the application of customary international law (which in some countries can be prosecuted by local authorities). The customary framework covers the arbitrary failure to allow and facilitate the rapid, impartial and unimpeded passage of humanitarian relief, including food, water, medical supplies, clothing, bedding, shelter, heating fuel and other articles essential for the survival of a civilian population; the starvation of a civilian population as a method of warfare; the intentional direction of attacks against the civilian population or individual civilians who are not taking a direct part in hostilities, as well as against civilian objects, such as Red Cross or Red Crescent buildings, vehicles and personnel, and UN premises; and the forcible transfer of the civilian population from one area to another, unless the security of the civilians or imperative military reasons necessitate it. The International Committee of the Red Cross (ICRC) has stated that ‘the instructions issued by the Israeli authorities for the population of Gaza City to immediately leave their homes, coupled with the complete siege explicitly denying them food, water and electricity, are not compatible with international humanitarian law.’ Nine UN special rapporteurs have warned that the ‘complete siege of Gaza coupled with unfeasible evacuation orders and forcible population transfers’ constitute ‘a violation of international … criminal law’, amounting to a war crime. But far from deterring Israeli actions, such statements may as well have been a ‘to do’ list for the IDF. The ICC prosecutor will be spoilt for choice.
Israel responds that since Hamas’s declared intention is to destroy it, Israel’s right of self-defence extends to the destruction of Hamas, regardless of the cost to life: another Holocaust is underway and must be prevented, and any action it takes becomes proportionate because of the imperative to prevent such an outcome. All those who disagree are, as far as Israel is concerned, driven by antisemitism. Gaza needs to be deprived of food, water, electricity and communications the better to defeat Hamas – which is in any case hoarding food and fuel oil. And, Israel argues, in recent days it has been nice to civilians, helping them get out of northern Gaza, despite Hamas propaganda to the contrary. Some of the more awful incidents – such as the explosion at Al-Ahli hospital in Gaza City on 17 October – have been blamed on misfired rockets from Hamas or Islamic Jihad. When this defence isn’t plausible, elaborate explanations about Hamas’s underground military bunkers and ‘terrorist infrastructure’ are presented as though they are sufficient excuse for the mass killing of hospital patients and medical staff, or at least fifty inhabitants of the Jabalia refugee camp in the attempt to kill a single Hamas leader. Israel can argue that much of the responsibility for the plight of the people of Gaza can be laid at Egypt’s door, since it has a duty in international law to take any refugees driven out by fear of Israeli bombs. (A military intelligence paper from inside the Israeli government identified the movement of the population of Gaza into the Sinai peninsula as the desired outcome.) When all else fails, the Israeli authorities can simply fall back on saying that Hamas precipitated the conflict, with Israeli forces mere instruments of their suicidal intent.
Whether these explanations convince anyone not predisposed to support Israel is an open question. The Irish claimed part of the United Kingdom as of right until after the Good Friday Agreement, but nobody thought that gave the British the right to bomb the republic into oblivion. If in the early days of the Troubles the old Northern Ireland government had bombed the Catholics, sending them down to the border crossings with Ireland, few would have said the problem lay with Ireland (for not taking them in) rather than the bomber. Few of Israel’s potential defences seem likely to have much probative value in a court of law. And that is what proceedings before the ICC are: slow, methodical, evidence-based legal inquiries in which intense scrutiny is given to the materials laid before the court, which will be slow to accept rhetorical flourishes or fact-free assertion as truth.
Israel’s leadership must be assuming that the ICC will never mount a case. Many of their observations about the Palestinian people have been chilling, and their open decision-making process makes the imputation of command responsibility easier than it is in more chaotic circumstances. The Israeli minister of defence, Yoav Gallant, has declared that he has ‘released all restraints’, that the Israeli army is ‘fighting human animals and will act accordingly’, that the plan is to ‘eliminate everything’ and that ‘Gaza won’t return to what it was before.’ Senior Israeli military and government officials have stated that ‘the emphasis is on damage and not on accuracy’ and that ‘there will be no electricity and no water, there will only be destruction. You wanted hell, you will get hell.’ The former head of the Israeli National Security Council, Major General Giora Eiland, has said that ‘creating a severe humanitarian crisis in Gaza is a necessary means to achieve the goal’ and that ‘Gaza will become a place where no human being can exist.’ Israel’s ambassador to the UK, Tzipi Hotovely, has invoked the Allies’ bombing of Dresden and other German cities in the Second World War – which she claims caused 600,000 deaths – to justify Israel’s actions. The Israeli president, Isaac Herzog, has claimed that ‘it’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware, not involved. It’s absolutely not true,’ while Netanyahu has described the conflict as ‘a struggle between the children of light and the children of darkness’ and invoked the biblical injunction to destroy Amalek (‘Do not spare them: put to death men and women, children and infants, cattle and sheep, camels and donkeys’). Such statements have a genocidal intent.
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