Hamas attack, Israeli response fall under ICC jurisdiction

THE HAGUE, Netherlands – The International Criminal Court has jurisdiction over potential war crimes carried out by Hamas militants in Israel and Israelis in the Gaza Strip, even though Israel is not a member state, the ICC’s top prosecutor told Reuters on Thursday, October 12.

The occupied Palestinian territories including the Gaza Strip fall under the jurisdiction of the ICC, meaning the court has the authority to prosecute Hamas, the Palestinian militant group that rules Gaza.

“If there is evidence that Palestinians, whether they’re Hamas or Al Quds Brigades or the armed wing of Hamas or any other person or any other national of any other state party, has committed crimes. Yes, we have jurisdiction wherever they’re committed, including on the territory of Israel,” ICC prosecutor Karim Khan said in an interview.

In his first comments since Hamas launched brutal attacks on Israel on Saturday and Israel responded with devastating bombings of the Gaza Strip, he said the images are “heartbreaking”.

“It’s horrendous what’s going on, what we’re seeing on our television screens. There has to be a legal process to determine criminal responsibility,” he said.

“One doesn’t need to be the prosecutor of the ICC. Any human being’s heart must be chilled and frozen and heartbroken at seeing the pictures that are coming out of Israel and Palestine these last few days,” he said.

A court of last resort, the ICC prosecutes individuals for alleged criminal conduct when its 123 member states are unwilling or unable to prosecute themselves.

Many of the world’s major powers are not members, including China, the United States, Russia, India and Egypt. Even if the ICC were to issue warrants in the Israeli-Palestinian conflict, the court has no police force and would rely on member states to make arrests.

The court has had an ongoing investigation in the occupied Palestinian territories into possible war crimes and crimes against humanity there since 2021. But Israel doesn’t recognize the court.

When the 2021 probe was announced, Khan’s predecessor said the ICC was examining allegations of war crimes committed during 2014 hostilities in Gaza by Israeli forces, Hamas and other Palestinian armed groups. The current violence also falls under its mandate, Khan said.

Citing his own Muslim faith, Khan appealed to all sides to follow religious teachings, calling for the protection of the innocent, as well as abiding by accepted international norms for the conduct of war.

“One cannot deliberately target civilians or civilian objects. One can’t rape or kill, or mutilate or dismember,” he said. “Willful killing, hostage taking are grave breaches of the Geneva Convention and one has to comply with the law.”

Asked if he had a message for the warring parties in Israel and the Palestinian territories, Khan called for reflection and calm.

“This is what the moment needs, cool leadership, humanity and the realization that the law will judge all of us,” he said.