What Will Be The Response Of The International Criminal Court To The Situation In Palestine And Israel?

With the brutal attack of members of Hamas on civilians in Israel on October 7, 2023, the conflict between Hamas and Israel has escalated significantly. The attack, which included mass killings, has resulted in over 900 fatalities. Over 100 people are said to have been abducted and taken to Gaza, many are still not accounted for. In response to the attack, Israel launched an offensive against the Gaza Strip. The Israeli government has said there would be no electricity, fuel or water for the Gaza Strip until all hostages were freed. Hamas is an Islamist militant movement and one of the Palestinian territories’ two major political parties. In 1997, the U.S. designated Hamas as a terrorist organization.

On October 9, 2023, during a press conference, Secretary-General Guterres, condemned “the abhorrent attacks by Hamas and others against Israeli towns and villages in the Gaza periphery, which have left over 800 Israelis dead and more than 2,500 injured. Sadly, these numbers are expected to rise as the attacks are ongoing and many remain unaccounted for. In addition, over one hundred, possibly more, Israelis – civilians and military – have been reported captured by armed groups, including women, children and the elderly. Some are being held hostage inside Israel and many others have been taken inside the Gaza Strip. Meanwhile, Hamas and Palestinian Islamic Jihad have launched thousands of indiscriminate rockets that have reached central Israel, including Tel Aviv and Jerusalem.” Secretary-General Guterres added that he “recognize[s] the legitimate grievances of the Palestinian people. But nothing can justify these acts of terror and the killing, maiming and abduction of civilians.”

Secretary-General Guterres further commented on the Israeli response to the attack, stating: “I am deeply alarmed by reports of over 500 Palestinians — including women and children — killed in Gaza and over 3,000 injured. Unfortunately, these numbers are rising by the minute as Israeli operations continue. While I recognize Israel’s legitimate security concerns, I also remind Israel that military operations must be conducted in strict accordance with international humanitarian law. Civilians must be respected and protected at all times.”

Since the update from the Secretary-General, the number of causalities increased significantly and will continue to increase as the conflict rages on. Furthermore, the sheer brutality of the violence started coming to light. Among others, reports indicate that during the attack on Kibbutz Kfar Aza, whole families were killed, including children and babies, in the most brutal ways. The response to the attacks has also been violent with reports of indiscriminate military offensive. The brutality of Hamas’ attack must be condemned. However, the response, which resembles collective punishment, cannot be accepted to be in accordance with international law and the laws of war and armed conflict.

The most urgent action needed is the return of the hostages and the provision of assistance to all those affected. It is also crucial to protect civilians from further harm. Furthermore, justice and accountability are key. This raises the question in relation to the involvement of the International Criminal Court (ICC).

On March 3, 2021, the ICC Prosecutor announced the opening of the investigation into the Situation in the State of Palestine. This followed Pre-Trial Chamber I’s decision on February 5, 2021, that the Court could exercise its criminal jurisdiction in the Situation and, by majority, that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. Furthermore, a response from the ICC, posted on Twitter on October 10, 2023, is said to confirm that the current situation is within the mandate of the ICC.

On October 13, 2023, the Bar Human Rights Committee of England and Wales, the independent, international human rights arm of the Bar of England and Wales, made a formal written request to the Chief Prosecutor of the ICC, Karim Khan KC, asking him for a formal “preventative statement” regarding the continuing escalation of the conflict in Israel and Palestine. The request asked the Office of the Prosecutor to “urgently remind all parties to the conflict, as well as third party States, of their obligations under international law, and in particular their obligation to respect the fundamental international law principle of distinction between civilians and combatants.”

It is not clear whether and how the ICC will respond to the situation. However, considering the important position of the ICC, a statement on the situation is highly anticipated.