Navigating the Complex Legal Landscape in the Israel-Hamas War Conflict – Geneva Conventions, ICC, and More
The Israel-Hamas conflict, which erupted due to a weekend assault by the militant group Hamas, has led to a considerable and mounting death toll on both sides. This war is entangled within a complex international system of justice that has developed since the end of World War II.
What Laws Govern the Conflict?
The internationally accepted rules of armed conflict originate from the 1949 Geneva Conventions, ratified by all United Nations member states and supplemented by decisions made at international war crimes tribunals. These conventions encompass a set of treaties collectively known as the “Law of Armed Conflict” or “International Humanitarian Law.” It applies to government forces as well as organized armed groups, including Hamas militants.
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If allegations are made against Palestinian individuals for atrocities committed in Israel or against any alleged perpetrators of crimes in the occupied Palestinian territories, and they are not brought to justice within their respective countries, the International Criminal Court (ICC) in The Hague stands as the sole international legal entity capable of pressing charges. While domestic courts can apply universal jurisdiction in war crimes cases, this is limited in scope.
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The ICC’s Rome Statute, its foundational document, provides legal authority to investigate alleged crimes on the territory of its member states or committed by their nationals when domestic authorities are deemed “unwilling or unable” to do so. Recently, the ICC’s prosecutor confirmed that its mandate extends to potential crimes committed in the current Israel-Hamas conflict and that they are actively collecting information.
The Role of the ICC
The International Criminal Court (ICC), established in The Hague in 2002, is the world’s permanent war crimes tribunal. It holds jurisdiction over war crimes, crimes against humanity, and genocide in its 123 member states or crimes committed by their nationals. However, major global powers like China, the United States, Russia, India, and Egypt are not members. The ICC recognizes Palestine as a member state, although Israel rejects the court’s jurisdiction and does not formally engage with it.
Despite having limited resources and budget, ICC prosecutors are already investigating 17 cases spanning various regions, including Ukraine, Afghanistan, Sudan, and Myanmar. The ICC has had an ongoing investigation into allegations of war crimes and crimes against humanity committed in the occupied Palestinian territories since 2021, but no arrest warrants have been issued.
In 2021, prosecutors asserted that there was a reasonable basis to believe that violations had been committed by all parties involved, including Israeli troops, Hamas militants, and other armed Palestinian groups.
Violations of War Crimes Law
Human Rights Watch, based in New York, has cited several actions as possible war crimes in the current Israeli-Hamas conflict. These include the deliberate targeting of civilians, indiscriminate rocket attacks, and the taking of civilians as hostages by Palestinian armed groups, as well as Israeli counter-strikes in Gaza that resulted in the deaths of hundreds of Palestinians. These actions are explicitly prohibited under the Geneva Conventions.
Israel-Hamas war live: no power, water or fuel to Gaza until hostages are freed, Israeli minister says https://t.co/y8Q67sMP7x
— Stefania Falone (@StefaniaFalone) October 12, 2023
The taking of hostages, murder, and torture are strictly banned under these conventions. Additionally, Israel’s response to the conflict could also be subjected to a war crimes investigation. Israeli Defense Minister Yoav Gallant faced criticism for announcing a tightened blockade to prevent the flow of food and fuel into the Gaza Strip, home to 2.3 million people. Furthermore, his vow to eradicate Hamas “off the face of the earth” has raised concerns about the possibility of an Israeli ground invasion to eliminate the Palestinian militant group.
Do the Geneva Conventions Apply?
The Geneva Conventions remain a cornerstone of international humanitarian law and apply to conflicts like the one between Israel and Hamas. The Conventions stipulate that attacks on military objectives must be proportional under international law, meaning they must not result in an excessive loss of civilian life or damage to civilian infrastructure compared to the direct military advantage expected.
Israel-Hamas War: Update from Nadav Gavrielovhttps://t.co/wiPnP6n6gD
— Current Status (@currentstatus) October 12, 2023
Nick Kaufman, a British-born Israeli defence lawyer at the ICC, has pointed out the gruesome killings carried out by Hamas militants. These acts, including the deaths of hundreds of revellers at a dance rave and civilians in Kibbutz communities near the Gaza border, could become a focus of war crimes investigations.
— Ty Carver (@TyCarver) October 12, 2023
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