Will Hamas evade justice?

 Published in the Jerusalem Post, 17 February 2025

Regardless of how the Gaza conflict is resolved – through the ceasefire, or by way of some version of President Donald Trump’s more radical suggestions – a fundamental question has yet to be answered.  Are the remaining Hamas leaders, and those Hamas personnel who participated in the murderous outrage on October 7, 2023, to get away with their monstrous crimes or will they be brought to justice?          

On February 6 Trump signed an executive order imposing sanctions on the International Criminal Court (ICC) and its leaders.  The order states that the ICC “has engaged in illegitimate and baseless actions targeting America and our close ally Israel,” in particular by issuing arrest warrants against Benjamin Netanyahu and former minister of defense Yoav Gallant.

Justifiable though Trump is in punishing the ICC for acting with dubious legality, it would have been equally valid for him to reprimand the court for actions that it has not taken.

 In particular the ICC seems to have no viable plan in existence, or proposed, to bring to justice those Hamas leaders who conceived, and the Hamas personnel who carried out, the slaughter of 1200 civilians and the seizure of 250 people as hostages on October 7.  The nearest to any acknowledgment that such a step is necessary was the ridiculous issue by the ICC on November 21, 2024, of an international arrest warrant against the Hamas leader Mohammed Deif, who was presumed dead at the time it was issued, and has subsequently been confirmed so.  The court was apparently unable to unearth any living Hamas figure with responsibility for the pogrom and its consequences.   

 It may be that the court has no jurisdiction over what actually took place on Israeli soil.  But in respect of planning and launching an armed incursion into Israel, and of bringing back hostages to Gaza (considered by the court to be part of the non-existent State of Palestine), they most certainly do.

  Subsequently the ICC has taken no steps of any sort to bring Hamas leaders or personnel to account.  Meanwhile, free from any threat of judicial action, Hamas has continued to function as the de facto governing body in Gaza, using its Israeli hostages, seized in clear violation of international law, as bargaining chips to recover hundreds of Palestinian prisoners from incarceration in Israel.  

There is no secret about the individuals who now lead Hamas.  Following the death of Yahya Sinwar in October 2024, Hamas is now headed by a temporary five-member council comprised of Khaled Mashaal, Khalil al-Hayya, Zaher Jabarin, and Muhammad Ismail Darwish, plus an unnamed – if not unknown – senior member.

Mashaal, who previously led Hamas from 1996 to 2017, is currently overseeing the organization's international activities. He is believed still to be based in Qatar, despite some earlier reports that he had been expelled.

Within Gaza, Mohammed Sinwar, Yahya Sinwar’s younger brother, has assumed a significant leadership role and has been actively involved in rebuilding Hamas's military capabilities.

   These leaders are guilty of war crimes, as are the bloodthirsty Hamas operatives who actually carried out the October 7 pogrom.  War crimes under the 1949 Geneva Conventions include the murder and torture of civilians, and taking hostages.  Crimes the ICC can prosecute are set out in the treaty that established the court in 1998 (the Rome Statute of the ICC).  They include taking hostages, targeting civilians, and inhumane treatment.

    The Rome Statute also lays down quite clearly the court’s purpose.  The ICC was established to prosecute individuals (not states) for genocide, war crimes, crimes against humanity and crimes of aggression. In addition it was charged with ensuring that serious crimes do not go unpunished.

  There is a near-universal consensus that on October 7, 2023 the Hamas organization carried into effect long-planned war crimes including the murder of civilians and taking hostages.  It is not unreasonable to ask how the ICC proposes to exercise its remit to ensure that the serious crimes committed by Hamas on that day do not go unpunished.  They have the names of the surviving leaders, and as a start they have the names of the nine staff dismissed by UNRWA  for having personally participated in the massacre of civilians and the taking and incarcerating of hostages.  

 No doubt Hamas leaders consider themselves, their organization and its operatives above international law, and feel no obligation to adhere to the rules of decency and humanity embedded in it and accepted by the civilized world.  They are wrong.  There is a positive obligation placed on the ICC to “ensure that serious crimes do not go unpunished.”  The requirement does not exclude members of terrorist-designated organizations like Hamas.

There are legal avenues open to the court to bring Hamas leaders and personnel to justice. For example, the UN Security Council (UNSC) could refer named Hamas personnel to the ICC, as it has done in past cases like Sudan and Libya. Such a move could be initiated by the US, but of course might be vetoed by other permanent members.  But would it be?  Would permanent UNSC members like Russia or China  wish to be seen supporting Hamas? This is a step the US might consider.

Another route might be a referral to the court by any ICC member state, urging an investigation specifically into Hamas, with a view to eventual prosecution. Since Palestine is recognized as a member of the ICC, the court has jurisdiction over crimes committed in its territory.  The bringing into Gaza of captured people, depriving them of their liberty, and holding them hostage for extended periods seems, on the face of it, an obvious crime of international proportions.  France, Germany, Greece and the Netherlands – to name but four of the 120 states that are members of the ICC – could refer the case of Hamas to the court.  Perhaps one of them acting alone, or perhaps several acting jointly, or maybe some other state concerned with genuine international justice, might consider doing so.

In addition the ICC Prosecutor, Karim Khan, instead of seeking some bizarre equivalence between terrorism and a democratic state’s reaction to it, could initiate an investigation into Hamas’s potential war crimes with a view to issuing arrest warrants and prosecution.  While Israel is not an ICC member, it could provide evidence and intelligence to support ICC prosecutions.

The plain fact is that, if no action is initiated from some source or other, Hamas leaders and those of its adherents who carried out monstrous crimes on October 7 will go scot-free. Admittedly the well-established anti-Israel and antisemitic element within the UN and its organs might prove too strong to recommend action aimed at bringing Hamas criminals to justice via the ICC.  Even so, international legal proceedings against Hamas remain possible in a number of ways.

Some countries like Belgium, Germany, France and the Netherlands, allow their courts to prosecute individuals for war crimes and crimes against humanity even if they were committed abroad.  Such prosecutions depend, of course, on the individuals concerned traveling to these countries and being apprehended there.  Israel undoubtedly holds a list of known and suspected persons involved in the October 7 pogrom.  That list should be made publicly available as soon as possible.

Terrorists captured by Israel could well be prosecuted under Israeli law for war crimes. As for Hamas leaders, if any were to be run to earth by Israel, they would doubtless receive the form of summary justice already meted out to a number of their partners in crime.

Published in the Jerusalem Post and the Jerusalem Post online titled: "Hamas could evade justice if the ICC refuses to take action", 17 February 2025:
https://www.jpost.com/opinion/article-842401