Have war crimes been committed by Hamas and Israel? What does international law provide?

A search for the wounded among the rubble of a building that collapsed as a result of an Israeli bombing (AP Photo/Abdul Kader Sabbah)

Since Black Saturday on October 7 and the Hamas invasion of Israel, the phrase “war crimes” has been uttered many times, both by those directly involved and by third countries such as Turkey.

While no one can deny that atrocities and mistakes were committed by both sides, the question arises: are war crimes actually being committed in accordance with the letter and spirit of international law?

Definition and legal basis in the war between Israel and Hamas

A set of laws, international treaties and decisions of war crimes tribunals provides the context in which the question of which of the two parties involved committed such crimes is answered. The set of specific provisions is called “International Humanitarian Law” or “Legal Framework of Armed Conflict”.

There are two very specific axes on which we must rely when considering the merits of the issue of war crimes: the first is the principle of protection of non-combatants in a conflict, essentially civilians or soldiers who have surrendered their weapons, and the limitations imposed by the type of conflict. The origins of these rules date back to the 19th century, but they were significantly and structurally updated in the 1949 Geneva Convention in the wake of the horrific crimes against humanity in World War II.

The main purpose of this structure is undoubtedly the protection of civilians

Over the years, several different protocols and provisions have been added to the provisions of the Geneva Convention, mainly relating to the use of specific types of weapons. They also include a number of decisions by various judicial bodies, such as the International Criminal Court, which, for example, has considered rape a weapon of genocide since 1994, based on evidence of the deaths of more than 800,000 Tutsis in Rwanda.

Is there evidence of war crimes today?
The United Nations has officially declared that Hamas massacre of hundreds of civilians, including children, and the abduction of more than 200 people are crimes under international law. Many legal experts argue that rocket attacks on Israel from the Gaza Strip by Hamas should also be considered a war crime.

However, the UN notes that there is a possibility that Israel could also fall under the category of war crimes in light of “collective total punishment” and what has been happening with the siege and bombing of the Gaza Strip over the past 24 days. Both the International Committee and the Red Cross agree with this. According to a joint communique from the above-mentioned authorities, “instructing civilians in Gaza to evacuate their homes is in direct contradiction to the denial of water, food and electricity to the same civilians.”

Amnesty International also stresses that Israeli attacks do not differentiate between Hamas and civilians, and that such practices are the basis of war crimes.

Who can hold both parties accountable?

The International Criminal Court in The Hague is the body that can hold both parties involved accountable. The ICC recognized Palestine as a member in 2015 and accepted a call for an investigation into Israeli attacks to Gaza a year earlier. The Palestinian side, in its memorandum, then asked the ICC to investigate as a separate crime Israel’s continued expansion of its settlement plans, stressing that the presence of more than 700,000 Israeli settlers in the occupied West Bank violates the principle of international law, which states:

“Occupying forces have no right to settle or displace civilians in occupied territories.”

Israel does not recognize the jurisdiction of the ICC because it is not a signatory to the 2002 Treaty of Rome. Despite this, Prime Minister Benjamin Netnyahu in 2021, after releasing the first details of the investigation, which began in 2015, called the conclusions “a vicious attack on Israel”which shows that for any government, a conviction is no small thing.

Nor is it insignificant for Hamas, which may and is not recognized as a terrorist organization by the whole world or members of international organizations, but in no case enjoys “immunity”, since it falls under the status of armed organizations operating in combat zones.

In 2021, the ICC opened a criminal case against Israel and Hamas on suspicion of committing war crimes

In December 2019, after several warnings, prosecutor Fatou Bensouda announced that she had found the basis for an investigation against Israel and Hamas on suspicion of war crimes – at the request of the Palestinian Authority authorities.

Israel argued that the Palestinian Authority is not a state and cannot independently apply to the ICC, and also, for the same reason, the jurisdiction of the court does not extend to its territory. Therefore, the prosecutor first asked the court to rule on jurisdiction in the West Bank and Gaza Strip. The ICC judges ruled that the Palestinian Authority can be considered a stateallowing an investigation to be opened against Israel and the Rome Statute to apply to alleged crimes committed in the West Bank, Gaza and East Jerusalem.

The conclusion previously given to Fatou Bensouda regarding Operation Protective Edge stated that there is reason to believe that “IDF officials committed war crimes by deliberately carrying out disproportionate attacks resulting in killing and serious injury on at least three occasions.” The prosecutor also sees grounds for investigating the use of weapons by IDF soldiers against demonstrators on the border with the Gaza Strip, starting in March 2018, which resulted in the deaths of more than 200 people, including 40 children.

Fatou Bensouda said there were also grounds to investigate Hamas and a number of other Palestinian organizations. They are suspected of a variety of war crimes, including torture, attacks on civilians and civilian structures, and the use of human shields. Among other things, Bensouda also sees reasons to investigate the establishment of Israeli settlements in the West Bank.

Israeli Prime Minister Benjamin Netanyahu responded to the ICC decision by saying: “Today the court has once again proven that it is a political body and not a judicial institution.” He added: “The court ignores real war crimes and instead prosecutes the State of Israel, a state with a strong democratic regime that holds sacred the rule of law.” The head of government instructed ministers not to publicly comment on the decision of the International Criminal Court…

PS You may ask, where are the sanctions against Israel? Why wasn’t a warrant issued against Netanyahu? It was a rhetorical question – like the United States, Israel has no jurisdiction in principle. Now do you understand Putin’s reaction to the ICC verdict?

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