The story so far: In a statement released last month, the United Nations has said that “there is already clear evidence that war crimes may have been committed” by Hamas and the Israeli military since October 7 and that it is gathering evidence for potential prosecution.
Days later, the International Criminal Court’s (ICC) Prosecutor Karim Khan visited Gaza’s Rafah border crossing with Egypt after outlining that the ICC’s mandate applies to the current conflict between Israel and the Palestinians. Cautioning that there should not be any impediment to humanitarian relief supplies going to civilians, Mr. Khan said that “these rights are part of the Geneva conventions, and they give rise to even criminal responsibility when these rights are curtailed under the Rome statute.” Highlighting that he was “very concerned also by the spike of the number of reported incidents of attack by settlers against Palestinian civilians,” he said that the ICC would investigate “current events in the West Bank.”
In the wake of raids carried out by Hamas on October 7, which Israeli officials say killed more than 1,400 people, the families of nine Israeli victims have lodged a complaint at the ICC alleging genocide. They also want Hamas to be prosecuted for war crimes and for the ICC to issue an international arrest warrant for its leaders. The families’ lawyer Francois Zimeray said in a statement that the complaint concerns victims who were all civilians and that the “Hamas terrorists do not deny the crimes committed, which they have amply documented and broadcast.”
In light of these developments, The Hindu decodes what international laws apply to the war; what constitutes ‘war crimes’ and ‘genocide’; and whether the ICC has jurisdiction to prosecute the ongoing hostilities.
What international laws apply to the war?
The law governing armed conflict and military occupation is known as ‘international humanitarian law’ (IHL); it is derived from a framework of international conventions, treaties, and tribunal rulings. The central tenet of IHL is that parties to a conflict must distinguish at all times between combatants and civilians. All possible precautionary measures must be taken to minimise harm to civilians, and attacks causing disproportionate harm to them as compared to any anticipated military gain are prohibited.
The genesis of this legal framework lies in treaties dating back to the 19th century, but its modern version has been codified in the 1949 Geneva Conventions, which came into being after crimes against humanity were committed in the Second World War. Additional Protocols have been added over the years, governing the use of certain types of weapons. The first Geneva Convention was signed by 12 nations in 1864 dealing with the treatment of the wounded and the protection of medical personnel and hospitals. Subsequently, four Geneva Conventions were adopted dealing with the laws of war — Convention I on the amelioration of the condition of the wounded and sick in armed forces in the field; Convention II on the amelioration of the condition of the wounded, sick, and shipwrecked members of armed forces at sea; Convention III on the treatment of prisoners of war; and Convention IV on the protection of civilian persons in times of war.
In 1977, two additional protocols to the 1949 Geneva Conventions were adopted owing to the increase in the number of non-international armed conflicts and wars of national liberation — Protocol I relating to the protection of victims of international armed conflicts, and Protocol II relating to the protection of victims of non-international armed conflicts. In 2005, a third Protocol was adopted creating an additional emblem, the Red Crystal, affording the same international recognition as the Red Cross and Red Crescent emblems — universal symbols of assiatance for armed conflict victims.
Article 3 of the Geneva Conventions of 1949, which is common to all four Conventions, extends protection to civilians and persons no longer taking part in hostilities, such as captured combatants, and those who have surrendered or become incapacitated. This includes the prohibition of violence such as murder, cruel treatment, and torture against such persons well as a violation of their personal dignity and the taking of hostages.
Notably, the ‘principle of nonreciprocity’ is inherent in these laws, which means that violations by one side such as deliberately targeting civilians or imposing collective punishment do not justify violations by another. The laws make no formal distinction between parties to a conflict on the basis of power imbalances, as it could virtually negate the rules of war.
Warring parties are also required to give ‘effective advance warning’ of attacks that may affect the civilian population. What constitutes an ‘effective’ warning however depends on the circumstances — the timing of the warning and the ability of civilians to leave the area. However, giving a warning does not absolve parties of the responsibility to protect civilians. On October 13, the Israeli army ordered more than 1 million people — half the population — to leave northern Gaza within 24 hours, in advance of an imminent military ground operation. Human Rights Watch has flagged that alerting civilians to flee when there is no safe place to go or any means to leave since the routes designated by the Israeli military continue to be bombarded by airstrikes — fails to uphold international law obligations.
“The instructions issued by the Israeli authorities for the population of Gaza City to immediately leave their homes, coupled with the complete siege explicitly denying them food, water, and electricity, are not compatible with international humanitarian law.” International Committee of the Red Cross (ICRC)
The laws also prohibit ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’; thus calls for evacuation that are not genuine warnings but are primarily intended to cause panic among residents or compel them to leave for reasons other than their safety would fall under this prohibition. The sweeping nature of the Israeli government’s order and the impossibility of safe compliance have raised concerns that the prior warnings of evacuation are farcical and that the country intends to use maximal force against the entire Gaza Strip without regard for civilian life.
Other laws, particularly international human rights law, apply at all times, enjoining all states to protect the rights of the people in territories where they have jurisdiction or a degree of control. Core human rights treaties applicable are the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Although the ICCPR permits some restrictions on certain rights during an officially proclaimed public emergency that ‘threatens the life of the nation,’ this must be ‘limited to the extent strictly required by the exigencies of the situation’, and should not involve discrimination on grounds of race, religion, and other grounds.
Are Israel and Hamas bound by these treaties?
On July 6, 1951, the still newly formed state of Israel ratified the Geneva Conventions – one of 196 countries to have done so. However, Israel has maintained that the Fourth Geneva Convention is not applicable to the West Bank (an area that Israel has occupied and maintained under military control since 1967) since it is a ‘disputed territory’ and not an ‘occupied territory’.
The International Court of Justice (ICJ) has however rejected this argument after pointing out that Israel and Jordan were parties to the Fourth Convention when the 1967 armed conflict broke out. It ruled, “The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.”
In May last year, the Israeli Supreme Court in Abu Aram v. Minister of Defence reiterated that the Fourth Geneva Convention is not applicable to occupied territories in the West Bank since the Convention constitutes ‘treaty law,’ which according to Israeli doctrine on incorporation is not applicable unless ‘absorbed’ into Israeli law by statute. It, however, recognised the applicability of the Hague Regulations of 1907 annexed to the Convention as ‘customary international law’ and therefore binding on all states regardless of whether they are a party to a treaty.
Although non-state armed actors such as Hamas cannot ratify these treaties, they are obligated to observe the norms of IHL the moment they engage in an armed conflict. In 2004, the Appeals Chamber of the Special Court for Sierra Leone held that “it is well settled that all parties to an armed conflict, whether states or non-state actors, are bound by international humanitarian law, even though only states may become parties to international treaties.”
What constitutes ‘genocide’ and ‘war crimes’?
According to the United Nations, a war crime is a serious breach of international law committed against civilians or ‘enemy combatants’ during an international or domestic armed conflict. Unlike genocide and crimes against humanity, war crimes have to occur in the context of an armed conflict. Article 147 of the Fourth Geneva Convention stipulates that war crime constitutes the ‘wilful killing, torture or inhuman treatment, including … wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person … taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.’
The Rome Statute of the ICC (Article 8) further expanded the list of war crimes — for instance, it recognised forced pregnancy as a war crime. The ICC has adjudicated upon several cases of war crimes in the past. Jean-Pierre Bemba, former Vice President of the Democratic Republic of the Congo was accused of initiating campaigns of mass rape against civilians in the Central African Republic. In the Ntaganda case, the ICC held that sexual crimes committed by members of a Congolese armed group against other members of the same group constituted war crimes.
Article 2 of the United Nations Genocide Convention defines genocide as acts ‘committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.’ Such acts could include killings, inflicting serious bodily or mental harm or life-threatening conditions, measures to prevent births, and forcibly transferring children.
Under the Rome Statute, Article 6 defines genocide in similar terms, empowering the ICC to investigate and prosecute the crime. In 2010, the ICC issued an arrest warrant for Sudanese President, Omar al-Bashir, on genocide charges, accusing him of waging a campaign against the denizens of Darfur. The ICJ, a separate court which deals with interstate disputes, can also rule that states are responsible for genocide.
Can the ICC prosecute these crimes?
The ICC — the permanent court in The Hague with jurisdiction over war crimes and other crimes against humanity such as genocide, steps in when local jurisdictions fail to prosecute. In 2015, the Court recognised Palestine as a member, following which it was asked to investigate Israel’s assault on Gaza the previous year, and the continued construction of Israeli settlements in the occupied West Bank and East Jerusalem.
In 2021, the ICC in a landmark ruling said that it would investigate possible war crimes committed by Israel in occupied Palestinian territory and that its jurisdiction extended to all the Palestinian territories annexed by Israel after the June 1967 Arab-Israeli War. The verdict relied upon the recommendations made by Fatou Bensouda, the ICC’s chief prosecutor in 2019. She had underscored that the building of illegal settlements in the occupied West Bank constituted a war crime. However, Israel has rejected the jurisdiction of the ICC on the ground that it is not a signatory to the Rome Statute that established the Court. The United States (U.S.) has also backed this position, saying that it “firmly opposes” any investigation and that “the Palestinians do not qualify as a sovereign state.”
Although Hamas’s cross-border attack on October 7 was in Israel, it still falls within the ICC’s jurisdiction because the Palestinian armed group operates from within the area under the Court’s purview.
Regarding the ongoing hostilities, Mr. Khan, the current ICC prosecutor said, ”We have active investigations ongoing in relation to the crimes allegedly committed in Israel on the 7 of October and also in relation to Gaza and the West Bank in our jurisdiction going back to 2014.” He also highlighted that the Court would pursue its investigations with ‘determination’ despite Israel’s refusal to cooperate.
How has the interntional community reacted to the ICC probe?
In 2020, Donald Trump, the former US President, revoked Ms. Bensouda’s U.S visa and imposed financial sanctions on her and another senior prosecutor owing to the ICC’s Israel-Palestine investigation and a separate investigation into the country’s actions in Afghanistan. In response, 67 nations, including close US allies issued a statement expressing “unwavering support for the Court as an independent and impartial judicial institution.”
With regard to the ongoing war, only three nations so far have backed a probe by the ICC — Liechtenstein, Switzerland, and South Africa. Micheál Martin, Ireland’s Deputy Prime Minister and Foreign Minister, last month said in a media interview that it was for the ICC to determine if war crimes are being committed.
The support of member nations is crucial for the ICC to intervene because even if it were to prosecute Israeli officials or Hamas representatives, it would have to rely on foreign governments to enforce warrants and arrest the accused persons.
“It is vital that the Office of the Prosecutor of the International Criminal Court urgently expedites its ongoing investigation into evidence of war crimes and other crimes under international law by all parties. Without justice and the dismantlement of Israel’s system of apartheid against Palestinians, there can be no end to the horrifying civilian suffering we are witnessing.”Amnesty International
Expressing disappointment at the silence of member nations, Human Rights Watch has flagged that the lack of support stands in stark contrast to the wide demands from European governments for the ICC to probe into Russian war crimes in Ukraine, a non-ICC member country. “Double standards in victims’ access to accountability are unacceptable,” it said.
