Can International Law Hold Israel And Hamas Accountable For Alleged War Crimes?
On October 7, Hamas launched thousands of rockets against Israel in advance of a ground attack, unleashing the deadliest day for Jewish people since the Holocaust.
Militants killed more than 1,400 people across southern Israel, with most of the fatalities involving civilians, including several children who were shot, blown up or burned to death.
Israel is responding with airstrikes, which have to date killed at least 4,000 people in Gaza, while mobilising around 360,000 reservists in preparation for an anticipated ground offensive on Gaza.
The situation in Gaza is dire for people with urgent needs, including 5,000 women due to give birth this month and infants whose families cannot find drinking water to prepare formula.
While the strip was already entrenched in a humanitarian crisis prior to the horrific escalation, the situation now is beyond comprehension.
What role should international humanitarian law be playing? And does it actually have any capacity to constrain the behaviour of the combatants?
According to UN independent experts, the Palestinian Islamist militant group has clearly committed war crimes, including the murders and hostage-taking of Israeli civilians.
However, holding Hamas accountable for violating international law is very challenging. As a non-state actor, the group is not a member of forums like the UN.
If individual militants are apprehended, they could be tried in Israeli courts or the ICC. Even though Hamas is a non-state actor, Palestine has accepted the court’s jurisdiction.
Israel and its allies are also known to have a complex relationship with international humanitarian law. One key issue is Israel’s right to self-defence in response to Hamas acts.
While international law confirms a state may use force to defend itself, UN independent experts have condemned Israel’s “indiscriminate military attacks” against Palestinian civilians.
Israel is not a party to the ICC. It would not accept the court’s jurisdiction over its nationals. In time, the ICC may seek to hold Israelis accountable, but its capacity to do so seems very limited.
At this point, it appears international humanitarian law and global institutions have really limited capacity to constrain the actions of the combatants on both sides.
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