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