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Dr WINDELL NORTJE
ON October 7, 2023, Hamas penetrated the Israel-Gaza border in several locations and proceeded to murder over 1400 Israeli civilians and security forces. Hamas also abducted over 150 civilians upon their return to Gaza. This event shocked the entire world but also showcased the biased media coverage of the Israel-Gaza conflict. Thousands of Gazans have been killed by Israeli forces over the last few decades, and the Western media has been silent. After the Hamas attack, Israel ordered the evacuation of over 1 million Gazans from the north of Gaza to the south, which is considered a war crime in itself. This action is also known as a violation of the laws of war as outlined by the 1949 Geneva Conventions. The Israelis then proceeded to bomb various buildings and areas believed to be Hamas shelters. As a result, they also murdered thousands of Gaza civilians and continue to do so to this day, which is also a war crime. Furthermore, the Israeli army has indicated its intention to launch a full-scale ground invasion, which will inevitably result in the loss of civilian lives—another war crime. As of October 29, 2023, and ever since the two previous Gaza wars, which resulted in the murder of thousands of innocent Gaza civilians, no Israeli nationals have been prosecuted for their involvement in the commission of war crimes, the crime of genocide, apartheid as a crime against humanity, or aggression. This impunity must come to an end, but how?
What is the role of the International Criminal Court (ICC)?
The prosecution of crimes under international law is political and complex. First, who can prosecute the Israeli leadership for their role in the atrocities? Well, Israel has primacy over its own accused, but such accountability is highly unlikely apart from a miracle change in government. Second, those responsible could be prosecuted by any other state in line with universal jurisdiction, seeing that the crimes committed against Gazans are also crimes committed against any other state. This is also unlikely since Benjamin Netanyahu, the Israeli Prime Minister, will not be arrested and prosecuted by any state in the West for financial, political, and other reasons. However, the International Criminal Court (ICC) could prosecute the most responsible individuals in Israel.
The International Criminal Court (ICC) is a court established by the Rome Statute, and states must sign and ratify the statute if they wish to join the court. While Israel is not a party to the Rome Statute, Palestine is. Moreover, Israel refuses to acknowledge the existence of the ICC. Palestine approached the ICC in 2015 and accepted the jurisdiction of the Rome Statute concerning international crimes committed in occupied Palestine since 2014. In 2019, the then prosecutor of the ICC, Fatou Bensouda, declared that war crimes were committed in the West Bank, East Jerusalem, and Gaza from 2014 onwards. In February 2021, the Pre-Trial Chamber of the ICC held that the Court has jurisdiction over the area, and in March 2021, the Prosecutor officially commenced its investigation into the situation in Palestine. During this time and in 2021, a new prosecutor was appointed, Karim Khan. This contributed to the slow pace of the investigations, as the prosecution of international crime requires the prosecutor, in many instances, to visit the affected areas and speak to victims. Khan stated at the end of 2022 that he would start with investigations in 2023. However, the investigation is currently not progressing. In a recent interview following the latest Gaza war, Khan called for peace and held that the killing of civilians is a grave breach of the Geneva Conventions. Other than that, the ICC remains silent.
The advisory opinion of the International Court of Justice (ICJ).
The International Court of Justice (ICJ) is not a criminal court like the ICC but can publish advisory opinions concerning states. On August 7, 2023, it received 57 written statements to publish an advisory opinion on the situation in Palestine. The ICJ will hold public hearings on February 19, 2024, in the Hague in respect of the situation in Palestine. It is hoped that these events will contribute to justice and peace in the area.
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In prosecuting Hamas
Apart from the prosecution of Israeli leaders, the leaders of Hamas can also be prosecuted for the commission of murder, abduction of civilians, and other crimes under international law against Israeli civilians since 2014. Because Palestine is a party to the Rome Statute, the ICC has jurisdiction whenever a Palestinian national commits a crime under international law, such as the attacks on October 7. Any bias of the ICC will be tested, especially considering which conduct the ICC will decide to investigate and charge first. It is also important to note that the ICC can only prosecute individuals for the commission of crimes under international law rather than states, as it is regarded as a court of last resort. It is, therefore, most likely that the ICC will bring charges against the Israeli and Hamas leadership, similar to what happened in 2022, when the ICC decided to bring charges against the Russian President, Vladimir Putin, for his alleged commission of war crimes in the Ukraine war.
Finally, even if the Hamas and Israeli leaders are charged by the ICC, the perpetrators are required to appear before the ICC in the Hague. This is also highly unlikely given that the ICC does not have a police force and depends solely on the mutual legal assistance of state parties. The only foreseeable outcome is the signing of a declaration of peace between Palestine and Israel.
- Dr Windell Nortje is a senior lecturer at the Department of Criminal Justice and Procedure at the Faculty of Law at the University of the Western Cape (UWC). He is a member of the UWC African Centre for Transnational Criminal Justice and the SAPS University Forum. His most recent publication focuses on the prosecution of apartheid as a crime against humanity.
