Who could be criminally charged because of the Israel-Hamas war?

In short: South Africa presented its genocide case against Israel this week at the International Court of Justice, which handles disputes between countries. The International Criminal Court, which prosecutes individuals for international crimes, has been investigating potential crimes committed in the Palestinian territories since 2021, including those committed by Hamas militants and Israeli military members during the Israel-Hamas war.

What is the ICC?

Based in The Hague in the Netherlands, the ICC began operating in 2002. The court investigates and prosecutes those responsible for major international offenses, specifically genocide, war crimes, crimes against humanity, and crimes of aggression.

The ICC is composed of a prosecutor’s office and a bench of 18 judges. If an individual is convicted by the court, the ICC can impose punishments of up to life imprisonment.

The ICC has heard 31 cases since its founding, and there have been 10 convictions.

Who could the ICC charge when it comes to the Israel-Hamas war?

Depending on circumstances including where an alleged crime was committed and where the perpetrator is from, the ICC could charge both Hamas militants and Israeli military members.  

ICC jurisdiction only applies to countries that have agreed to participate in the court. Currently, 123 countries are signed on to the ICC’s establishing statute; Israel did not sign on, the State of Palestine did as a non-member observer state recognized by the U.N.

The ICC is also able to prosecute members of a non-state group – such as Hamas – for genocide, war crimes, and crimes against humanity, said Leila Sadat, special adviser on crimes against humanity to the ICC prosecutor, at a panel discussion at the Chicago Council on Global Affairs. If non-state actors commit a crime on ICC country territory, the court automatically has jurisdiction. If a non-state party commits a crime on non-ICC country territory, the United Nations Security Council must refer those non-state groups to the ICC.

Because the State of Palestine is signed on to the ICC, the court has jurisdiction over all Palestinian nationals.

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“Most states see the ICC as a shield,” Sadat said. “They’re trying to protect their territory, and when they join the court, they make a commitment that their nationals will not commit ICC crimes. So, leaders of Hamas, as Palestinian nationals, are nonetheless within the sort of jurisdiction, subject-matter-wise, of the court.”

However, if the ICC charges Hamas members who aren’t within an ICC country, it will be difficult to get them into custody as the court relies on states to arrest those at large. The ICC has no police force of its own, Sadat said.

There are Hamas members currently operating outside of the Palestinian territories, primarily in three countries that don’t recognize the ICC: Lebanon, Qatar, and Egypt. 

Israel does not recognize the ICC, so Israeli nationals are not under its jurisdiction unless they commit a crime in a place that does recognize the ICC. This means that Israeli military members could be charged by the ICC for any alleged crimes in the Palestinian territories.

What is the ICC investigation into Israel and the Palestinian territories?

In 2021, at the State of Palestine’s request, the ICC opened an investigation into potential crimes committed in the Palestinian territories from 2014 – when a conflict between Hamas and Israel caused “unprecedented” devastation in Gaza – onward. Alleged crimes committed during the most recent Israel-Hamas war are included in that investigation.

In November 2023, the Israel-Hamas war prompted five countries to ask the ICC to investigate the situation in the Palestinian territories. ICC prosecutor Karim Khan has said the 2021 investigation includes the events that have occurred since early October.

Hamas launched an attack against Israel on Oct. 7, killing about 1,200 Israelis, mostly civilians, and taking more than 200 hostages. In response, Israel launched a “complete siege” on Gaza, killing at least 23,000 Palestinians, most of them women and children, and waging “the deadliest and most destructive” military campaign in recent history, the Associated Press reported. 

In December 2023, after visiting Israel and the West Bank, Khan said investigating potential crimes by Hamas militants and Israeli military members in the recent conflict was a “priority” for his office.