How a Lack of Support for the International Criminal Court may Have Emboldened Israel and Hamas

On 1 January 2015, the Government of The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014”.

This was in the wake of 2014’s ‘Operation Protective Edge’, the second, by then, of two major conflicts between Gaza and Israel of this century.

Operation Cast Lead in 2008-2009 was the first, with some 1,400 Palestinian and 13 Israeli deaths. In Operation Protective Edge, over 2,000 Gaza citizens, including 500 children, were killed, along with at least 66 Israeli civilians, including seven children. 

In the eight years between January 2015 and October 2023, the ICC’s jurisdiction was eventually confirmed and a full investigation of the conflicts in Gaza and the West Bank opened.

Many involved with international courts may have assumed subsequent slow, or no, action by the ICC since January 2015 reflected pressure by the US and other countries, even perhaps the UK. And indeed, the Guardian‘s recent investigative reporting unchallenged as to facts shows what extreme pressure Mossad and the Trump-era American government exerted on Fatou Bensouda, the ICC Prosecutor at the time, not to investigate Israel. 

Currently we await to see if the ICC’s judges will approve the arrest warrants for Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant on charges of crimes against humanity. Similar requests for warrants were requested for Hamas leaders, including the recently assassinated Ismail Haniyeh.

So, what might have been different in the eight years between 2015 and 2023 had countries with power given full encouragement and support to the process of the ICC confirming its jurisdiction and to the prosecutor opening an investigation (as she indeed did, notwithstanding Mossad’s threats to her security/life). 

Facing a proper, internationally supported investigation by an independent body into the long conflict might have made those on both sides – Hamas; the Israeli Government and the IDF – consider the consequences for them as individuals of breaking international law.  The looming prospect of handcuffs can concentrate the mind and even change the way a mind may work.

Instead, it may be that Israel was able to believe that pressure on the ICC was working and that its eight years of impunity from international law since 2014 would continue. If so, then that very same sense of impunity could also have been felt by Hamas, knowing that ICC pursuit could only be of both sides (as, at last, was the case).  

This sense of impunity may also have allowed leaders on both sides to think in ever more uncontrolled ways. It may have opened pathways of thought to allow the easy commission of war crimes.

An insight into the way in which Hamas was thinking early on in this process can be gleaned from an interview which I conducted on 5 October 2014 with Ismail Haniyeh, who was the Hamas Leader in the Gaza Strip from June 2007 to February 2017.

He was assassinated in June 2024, at which point he had been Chairman of the Hamas Political Bureau since May 2017. 

Haniyeh stated that Hamas “encouraged” Mahmoud Abbas, the President of the Palestinian National Authority, to take Israel before the ICC and signed the document allowing it do so in unity with Hamas. However, he also admitted that “we believe that there is sluggishness and indeed official Palestinian delay in this step”. 

I explained to Haniyeh that if the case was referred to the ICC then it would investigate both sides, with Hamas itself exposed to the risk of prosecution for war crimes.

To which he responded: 

I also asked Haniyeh whether he would trust the ICC to investigate the war fairly, given that many Palestinians might think that Israel had long been saved from any exposure to international law by the United States.

He replied: 

A critical question raised by Haniyeh’s remarks – one hard and deeply embarrassing for the US, UK and any other country to confront that did not encourage an ICC investigation to take place – is this.

Had Haniyeh’s and Abbas’s intentions in 2014 and 2015 been allowed to drive full ICC investigation of both sides’ conduct, the grave crimes of 7 October 2023, and everything, since might never have happened, because leaders of both sides would have had to confront the personal costs of acting outside the law?

In a domestic setting, applying pressure to slow or stop investigation of crime can itself be criminal. For powerful nations – repeatedly willing to subjugate the processes of international law to political objectives – to do the same thing with international legal systems may be quite as wrong but with incomparably worse consequences of thousands of innocent civilian deaths and much else besides.

In fact the only kind of pressure that should legitimately be applied in the present circumstances is for the immediate establishment of a detached, objective investigative process.

But also, to force our own Government to reveal (don’t bother with 20 year secrecy claims – we need to know now) whether they joined Mossad and the US in stopping a process that might have meant tens of thousands of men women and children could have lived and not have died.

Sir Geoffrey Nice, KC, is a Emeritus Gresham Professor of Law. Was the lead prosecutor for UN of Serbian President Slobodan Milošević. He is also the Chair of the China Tribunal and the Uyghur Tribunal.