Israel – Palestine: War crimes, self-defence and the ICC

I have consulted with several highly esteemed scholars in international law and crime to understand the legal aspects of the war in Israel-Palestine...

In an article in Newsweek two scholars of law - Avi Bell, professor of law at Bar Ilan University and the University of San Diego and Adv. Avraham Russell Shalev of the Kohelet Policy Forum - argue that ‘the massacre by Hamas presents the International Criminal Court with a golden opportunity to restore its own flagging reputation by promptly indicting the Palestinian officials and terrorists responsible for the horrific crimes of October 7 […] This is a chance for the Court to switch to the right side of the fight for justice[…] Survivors' accounts, together with videos, document parents and siblings being forced at gunpoint to watch the murder of their children, and vice versa. In one case, a teenage boy, shielded by the bodies of his murdered parents, survived being shot to give detailed testimony by phone to his anxious grandfather in the United States as the murderers continued their killing spree. Together, the documentary, forensic and testimonial evidence of Hamas' crimes is overwhelming and more than adequate for conviction.’ How true is this argument?

Palestine can refer to the ICC

Palestine accepted the International Criminal Court (ICC) jurisdiction in June 2014. What this means is that the ICC can actually launch an investigation and potentially bring prosecutions against (a) any Palestinian national alleged to have committed a crime within the Court’s jurisdiction (genocide, war crimes, crimes against humanity, crime of aggression) anywhere in the world (including on Israeli territory), but also against (b) nationals of ANY state alleged to have committed a crime within the Court’s jurisdiction on the territory of Palestine.

This means that the ICC Prosecutor can bring prosecutions against both Hamas operatives for what they did in Palestine OR Israel and IDF soldiers for what they did on Palestinian territory. Whether it would be a good idea to do so only against Hamas as suggested by the two scholars who opined in the Newsweek, when it can actually investigate and prosecute both, I leave it to you to decide, dear reader.

Even though Israel is not party to the ICC, the Prosecutor can start an investigation regarding Israel’s action in Palestinian territories proprio motu (on own motion) or after a referral from a state party (or the UN Security Council, which is unlikely - US will veto). It is fair to ask, then why is no investigation proprio motu, but also why Palestine hasn’t referred the situation to the Prosecutor to start the process. 

Israel’s ‘NATO practices?’

The aforementioned scholars also claim that Israel’s actions following the Hamas’ massacre on Oct.7 cannot constitute to war crimes because ‘Hamas organs such as the Gaza Health Ministry claim that Israel targets civilians even though Israel's ethical code and built-in legal review—which requires army lawyers to approve all targeting decisions—makes that a practical impossibility. […] Hamas allies have likewise claimed that international law forbids Israel's use of legitimate methods of warfare, such as siege. But these charges against the Jewish state make a mockery of international law, which affords invaded countries like Israel every right to defend themselves, even at the cost of mass collateral enemy civilian casualties, so long as the targets are legitimate. The comparison of Israeli and Hamas actions is morally obscene: Israel's military emulates legal practices that have been used by NATO forces elsewhere.’

It is true that the ICC Statute provides for only complementary jurisdiction of the ICC. This means, that the Court intervenes only subsidiarily, when the state is unwilling or unable to investigate and prosecute the relevant crimes. The argument of these scholars seems to presume that because Israel has relevant roles and procedures, this shields it from the power of the ICC as described above. But of course, this is not true: this would be for the Court to decide – i.e., whether Israel has fully and properly investigated claims and prosecuted individuals, or whether it is unwilling or unable to do so. 

Self-defence vs. war crimes

Would the fact that Israel is acting in self-defence exonerate the potential breaches of humanitarian law? Of course not. The law of recourse to force (jus ad bellum [JAB], or when a state can lawfully use force) is absolutely separate from the law of armed conflict (international humanitarian law, or jus in bello [JIB], or how force is to be used once recourse to force has been made). You can act in self-defence and still commit war crimes and crimes against humanity, as well as genocide. 

US-UK/ Iran complicity?

Assuming that Israel commits violations of international law, would the US-UK be deemed complicit due to the fact that it provides armaments specifically for this operation and facilitates the operation by sending its naval fleet in the Mediterranean? Could the same be said for Iran that purportedly provided arms to Hamas? It could, but this would be difficult to establish. States can be responsible for aiding or assisting the commission of internationally wrongful acts -breaches of international law- by other states. The requirements however are quite strict. (For more information: see Article 16 of the Articles on the Responsibility of States for internationally wrongful acts.)