I

srael’s attacks, especially those targeting civilians and civilian infrastructure, displacing civilians and making them targets of attack on the way to migration, and leaving them without food, water, shelter and medical care are acts that may constitute many different types of war crimes, crimes against humanity, or crimes of ethnic cleansing and even genocide, which are more serious crimes.

On October 7, following the Hamas attacks, Israel launched and intensified its attacks on Gaza, which have resulted and continue to result in violations of international law and serious humanitarian disasters.

Investigating these grave acts, which are very serious in terms of their consequences, identifying and prosecuting those responsible, and punishing the guilty must be at the top of the international community’s agenda. Only through prosecutions will it be possible to prevent similar atrocities and ensure that those responsible do not go unpunished.

The nature of Israeli acts

The most striking aspect of Israel’s military attacks on Gaza has been the deliberate killing or maiming of civilians. Israel’s air and ground attacks directly target locations where civilians are known to be present, and deliberately kill or injure civilians.

The targeted bombing of settlements, civilian migration routes, civilian shelters, and refugee camps for displaced Palestinians has become routine. Israel purposefully targets, kills, injures, or arrests civilians both in Gaza and in the West Bank.

Israel is forcedly displacing Palestinians living in the Gaza Strip. The deliberate killing of civilians, who should be protected from the effects of war, is carried out through direct attacks and the targeting of civilian infrastructure. A similar method of attack is the targeting of hospitals and health facilities. Targeted civilian infrastructure also includes schools and places of worship.

While each of Israel’s acts constitute war crimes, it can be argued that they are also crimes against humanity as they contain elements of a systematic attack against a specific community. Examining the nature of these acts, it is even possible to find elements of ethnic cleansing and genocide since the forcible transfer of a civilian population or the creation of an ethnically homogeneous geographical area through mass murder constitute the crime of ethnic cleansing, while the crime of genocide requires evidence of an intention to exterminate the Palestinians in whole or in part.

Israel is the occupying party which faces the military actions of Palestinian armed groups that fight against it. Claiming to be acting in self-defense, Israel has already exceeded the legal limits of this right and based on the disproportionality of the force it uses and the nature of the persons and places it targets, it has become a state that initiates and carries out illegal attacks. Such actions constitute the crime of aggression, which is defined as the planning, preparation, initiation, and execution of an “act of aggression” by political or military decision-makers.

Prosecution of those responsible

The abovementioned offences are crimes that give rise to personal criminal liability. Those who commit such crimes, regardless of their official position, must be tried and punished for them. In accordance with the relevant international conventions, they must first be tried by their own national judicial systems.

However, it is difficult to imagine that Israel would prosecute its own citizens for such crimes. It is precisely in such cases that the International Criminal Court (ICC), which was established to intervene in the judicial process, has the power to try those who should be tried but are not—or are not tried properly. The ICC has jurisdiction to try nationals of states party to its founding treaty, or nationals of any state party, who commit any of the above crimes on the territory of a state party.

Palestine became a state party to the ICC Statute on January 2, 2015, when it deposited its instrument of accession with the UN Secretary-General. The statute entered into force for the state of Palestine on April 1, 2015. Before becoming a party to the ICC Statute, the Palestinian government issued a declaration under Article 12(3) of the statute requesting the court to investigate crimes committed in the Palestinian territories. Through this declaration, the Palestinian state declared its acceptance of the court’s jurisdiction over crimes allegedly committed “in the Occupied Palestinian Territory, including East Jerusalem, since 13 June 2014.”

Could Russian President Vladimir Putin be prosecuted for war crimes in Ukraine? What about Russian military commanders and ordinary Russian soldiers? On the other side, could Ukraine President Volodmyr Zelensky, Ukrainian commanders or ordinary Ukrainian soldiers be prosecuted?

These questions have taken on increased urgency as Russia’s military action in Ukraine promises to continue for an extended period of time. To answer these questions, one must ask, first, what constitutes a crime in warfare. And second, if crimes are committed, is there a court that can actually prosecute and impose punishment.

The rules of war apply to all those who participate in war, from soldiers on the ground to the top commanders. They may lawfully kill people on the other side, but they may not kill civilians. If they take captives, they must treat them humanely. It matters not who started a war. Once a war begins, the rules apply equally to both sides.

Eyes on Russia

In the current hostilities in Ukraine, most attention has been on crimes that may have been committed on the Russian side. It is the Russian army that has taken action resulting in the deaths of at least several thousand Ukrainians. Bombardment by long-range missiles has resulted in many deaths. If bombardment is intended to harm civilians, then it is a crime.

Even if not intended to harm civilians, it is a crime if done “in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects.” That is wording from the Statute of the International Criminal Court, the court established twenty years ago in the Hague to prosecute persons who commit war crimes and other internationally defined offenses.

The recent bombing of a rail station in the city of Kramatorsk similarly appears to be an attack on a civilian objective. Investigators must determine whether the rail station was targeted intentionally, or whether the attack could have been aimed at some military objective in the vicinity. So far, no such evidence has appeared. Even if the Kramatorsk rail station was hit accidentally, it might still be a war crime on the basis that care was not taken to avoid hitting civilians.

So if a missile is launched against a military target, such an attack is unlawful if civilians are nearby and can be expected to be hit. Images from Ukraine circulating in the media show apartment buildings destroyed by missile attack. On the face of it, such attacks seem to be unlawful. Even if Ukrainian fighters are present in an apartment building, the harm to others is so predictable that an attack is not lawful.

One hospital was bombed by a Russian missile attack in the Ukrainian city of Mariupol. On the face of it, this appears to be an unlawful attack. There was some information, however, that this hospital had been taken over by a Ukrainian military unit and was not at the time functioning as a hospital. This is the kind of situation that must be investigated to determine if a war crime was committed.

There are allegations about acts of Russian soldiers in areas they have captured, like the town of Bucha near Kyiv. Civilians were apparently killed during the time the Russian army was in occupation. Investigators are working to find evidence as to how civilians were killed in Bucha and in other towns under Russian occupation.

It must be determined first whether they were killed by Russians. If that is the case, it must be determined whether the killings were carried out by Russian soldiers at their own initiative, or whether Russian commanders ordered or condoned the killings. If that is so, then commanders too would be guilty of war crimes.

Ukraine’s responsibility

On the Ukrainian side, its army is not causing damage on a similar scale against the Russians. It is directing its fire against the Russian military. So any prosecution of Ukrainian leadership figures is unlikely. The situation in which crimes have been alleged against Ukrainian personnel involve Russian captives, for example, shooting Russian prisoners in the knee. If prisoners are abused, this is a war crime. If commanders condone such abuse, they too are guilty.

The importance of all this law on war crimes is that it lets everyone know that they might be held accountable. Actual accountability, however, is far from certain. Sometimes the authorities of an army prosecute their own personnel. Sometimes prosecutions are undertaken by authorities of an opposing army. Sometimes they are undertaken by prosecutors in states that are not directly involved. Recently, Syrians alleged to have committed war crimes in the Syrian civil war have been prosecuted in Germany.

The International Criminal Court

The prosecutor of the International Criminal Court, a British lawyer named Karim Khan, has opened an investigation into possible crimes committed in Ukraine. The International Criminal Court focuses on high-level personnel. Khan is not likely to indict ground troops. Indictments against Russian commanders, particularly for bombardment of civilians, appear a serious possibility, however. The prosecutor may be able to identify particular commanders responsible for particular missile strikes. Under the court’s procedures, even cabinet ministers and presidents can be indicted.

The International Criminal Court does actually try persons and sentences them to prison. The court does not have its own prisons, but different countries house prisoners on the court’s behalf. The difficulty for the International Criminal Court is to gain custody in order to conduct a trial. The court does not try anyone in their absence. If Russian commanders, or even top civilian leaders are indicted, the Russian government is unlikely to surrender them.

States that are party to the International Criminal Court, however, have an obligation to surrender persons who are under indictment. Over one hundred states are parties. Anyone under indictment who travels to such a state risks arrest.

The United States: double standards?

The United States has been publicly accusing the Russian military and civilian leadership of war crimes. Last year, when the International Criminal Court’s prosecutor opened an investigation that may result in prosecution of Israeli officials over Israel’s unlawful settlements in the occupied Palestinian territory, the United States criticized the prosecutor. Israel is not a party to the International Criminal Court, and the United States stated its view that there is no legal basis to prosecute nationals of a state that is not a party.

Russia, similar to Israel, is not a party. So, by the U.S. logic, there should be no prosecution of Russian nationals. The United States did not criticize Khan, however, for opening an investigation that may lead to prosecution of Russian nationals. The United States thus is open to an accusation of double standards.

Ukraine too finds itself in an awkward legal position. Like Russia, Ukraine is not a party to the International Criminal Court. Technically, the International Criminal Court has jurisdiction to prosecute for war crimes committed in Ukraine, because Ukraine has taken advantage of a special provision that allows a state that is not a party to the court to give the court the right to prosecute for crimes in its territory.

However, since Ukraine is not a party, if Ukrainians were to commit war crimes in a foreign country, they could not be prosecuted. So Ukraine is asking for Russians to be prosecuted for war crimes in Ukraine, while Ukrainians cannot be prosecuted by the court for war crimes they might commit in other countries.

On March 22, the Palestinian Ambassador to the United Nations, Riyad Mansour, declared that “the time has come to stop Israel’s blatant impunity”. His remarks were included in a letter sent to the UN Secretary-General, Antonio Guterres, and other top officials at the international body.

There is modest – albeit cautious – optimism among Palestinians that Israeli officials could potentially be held accountable for war crimes and other human rights violations in Palestine. The reason behind this optimism is a recent decision by the International Criminal Court (ICC) to pursue its investigation of alleged war crimes committed in the occupied Palestinian territories.

Mansour’s letter was written with this context in mind. Other Palestinian officials, such as Foreign Minister, Riyad al-Maliki, are also pushing in this direction. He, too, wants to see an end to Israel’s lack of accountability.

Thus far, the Israeli response has been most predictable. On March 20, Israeli authorities decided to revoke Al-Maliki’s special travel permit in order to prevent him from pursuing Palestinian diplomacy that aims at ensuring the continuation of the ICC investigation. Al-Maliki had, in fact, just returned from a trip to The Hague, where the ICC is headquartered.

Furthermore, Israel is openly attempting to intimidate the Palestinian Authority in Ramallah to discontinue its cooperation with the ICC, as can be easily gleaned from the official Israeli discourse. “The Palestinian leadership has to understand there are consequences for their actions,” an Israeli official told The Jerusalem Post on March 21.

On April 30, 2020, Bensouda consulted with the Court’s Pre-trial Chamber regarding whether the ICC had jurisdiction over the matter.

Despite years of legal haggling and intense pressure on the ICC’s outgoing Chief Prosecutor, Fatou Bensouda, to scrap the investigation altogether, the legal proceedings have carried on, unhindered. The pressure was displayed in various forms: direct defamation by Israel, as in accusing the ICC of anti-Semitism; unprecedented American sanctions on ICC officials and constant meddling and intervention, on Israel’s behalf, by member States that are part of the ICC, and who are described as amici curiae. 

They did not succeed. On April 30, 2020, Bensouda consulted with the Court’s Pre-trial Chamber regarding whether the ICC had jurisdiction over the matter. Ten months later, the Chamber answered in the affirmative. Subsequently, the Prosecutor decided to formally open the investigation.

On March 9, a spokesman for the Court revealed that, in accordance to Article 18 in the Rome Statute, notification letters were sent by the Prosecutor’s office to ‘all parties concerned’, including the Israeli Government and the Palestinian leadership, notifying them of the war crimes probe and allowing them only one month to seek deferral of the investigation.

Though the Israeli government continues to maintain its official position that the ICC has no jurisdiction over Israel and occupied Palestine, top Israeli officials and diplomats are moving quickly to block what now seems to be an imminent probe. For example, Israeli President, Reuven Rivlin, was on an official visit to Germany where he, on March 18, met with his German counterpart Frank-Walter Steinmeier, thanking him on behalf of Israel for opposing the ICC’s investigation of Israeli officials.

After lashing out at the Palestinian leadership for attempting to “legalize” the conflict, through an international investigation, Rivlin renewed Israel’s “trust that our European friends will stand by us in the important fight on the misuse of the International Criminal Court against our soldiers and civilians.”

Unlike previous attempts at investigating Israeli war crimes, for example the Jenin massacre in the West Bank in 2002, and the various investigations of several Israeli wars on Gaza starting in 2008-09, the forthcoming ICC investigation is different. For one, the ICC investigation targets individuals, not states, and can issue arrest warrants, making it legally incumbent on all other ICC members to enforce the Court’s decisions.

Now that all attempts at dissuading the Court from pursuing the matter have failed, the question must be asked: What are the possible future scenarios?

Scenario 1: Expanding the Scope of Investigation 

In the case that the investigation carries on as planned, the Prosecutor’s next step would be to identify suspects and alleged perpetrators of war crimes. Dr. Triestino Mariniello, member of the legal team that represents the Gaza victims, told me that once these suspects have been determined, “the Prosecutor will ask the Pre-trial chamber to issue either arrest warrants or subpoena, at least in relation to the crimes already included in the investigation so far.”

These alleged war crimes already include Israel’s illegal Jewish settlements, the Israeli war on Gaza in 2014 and Israel’s targeting of unarmed civilian protesters during Gaza’s Great March of Return, starting in 2018.

Even more ideally, the Court could potentially widen the scope of the investigation, which is a major demand for the representatives of the Palestinian victims.

“We expect more crimes to be included: especially, apartheid as a crime against humanity and crimes against Palestinian prisoners by Israeli authorities, especially torture,” according to Dr. Mariniello.

In essence, this means that, even after the investigation is officially underway, the Palestine legal team can continue its advocacy to expand the scope of the investigation and to cover as much legal ground as possible.

Scenario 2: Narrow Scope of Investigation

However, judging from previous historic experiences, ideal scenarios in cases where Israel was investigated for war crimes rarely transpired. A less than ideal scenario would be for the scope of the investigation to remain narrow.

In a recent interview with former UN Special Rapporteur on the situation of human rights in Occupied Palestinian Territories, Professor Richard Falk, he told me that even if the narrow scope remains in effect – thus reducing the chances of all victims seeing justice – the investigation is still a “breakthrough”.

The International Criminal Court is taking a visible role in dealing with war crimes, to the plaudits of victims, and to the horror of perpetrators. These initiatives have brought a nervous reaction in Washington, which has been trying to undermine the court ever since it was created. Two situations in particular are justifying to Washington the fears it has felt about the court all along.

The court’s prosecutor is beginning an investigation of the interrogations conducted by the U.S. Central Intelligence Agency at clandestine detention facilities popularly known as “black sites” it operated in various countries in the aftermath of the September 11, 2001 attacks in the United States. At the same time, the prosecutor is beginning an investigation that could lead to prosecution of officials of America’s ally Israel over Israel’s wars in Gaza and its civilian settlements in Palestine territory.

Both investigations have brought sharp rebukes from the White House. The Afghanistan investigation could reach to the highest levels of Washington officialdom of the 2002-2003 era. The interrogations conducted by the Central Intelligence Agency are universally acknowledged to have constituted torture.

Even former President Barack Obama has said that techniques like “water-boarding” are torture. And a committee of the United States Senate issued a report detailing the use of such techniques. So the prosecutor will not have a difficult time showing torture.

Torture is one of the acts defined to be a war crime in the court’s statute. And to the dismay of Washington, the International Criminal Court has jurisdiction to investigate, because some of the “black sites” happened to be in the territory of states that have signed up to the International Criminal Court. That gives the court jurisdiction to investigate.

That also highlights the main criticism the United States has of the court. The U.S. Government takes the position that the International Criminal Court should have jurisdiction only over persons who are nationals of states that sign up to the court, that is, unless the U.N. Security Council decides that a particular situation merits investigation.

The Security Council can refer a situation to the prosecutor for investigation. Of course, the United States has control over such referrals, because it wields a veto in the Security Council to stop any referral it opposes. And the United States has not signed up to the court, so the prosecutor doesn’t have jurisdiction over U.S. persons in that way.

The interrogation techniques were approved at the highest level of government in the United States. The International Criminal Court focuses on high-level officials who set policy for the commission of war crimes. So top officials from the 2002-2003 period could be in the prosecutor’s cross hairs.

When President Obama took office, he said that no one would be prosecuted for the interrogation practices, even though they constituted torture. That opens the way to prosecution at the International Criminal Court. If prosecutions occur in a particular country, the International Criminal Court backs off. But Obama’s refusal to prosecute means there is no obstacle to prosecution in the International Criminal Court.

The other situation that is causing consternation in Washington is an investigation of war crimes in Palestine territory that could lead to prosecution of top Israeli officials. Here too the jurisdictional rules are key. Palestine has signed up to the International Criminal Court.

That means that war crimes in its territory can be investigated. One of the acts that is defined by the court as a war crime is the transfer of civilians into settlements in territory under belligerent occupation. Israel does not disguise the fact that it promotes settlements in the West Bank territory of Palestine. The prosecutor has said that this action involves war crimes committed by Israeli officials.

Within recent weeks, the Israeli government has warned many of its highest-level officials that they may be indicted by the International Criminal Court. The United States has already criticized the court over the Palestine investigation. That criticism came in February, when the court confirmed that the prosecutor may proceed with investigations.

These two investigations are far from the only ones now in process at the court. Myanmar officials, for example, may find themselves indicted for the treatment of members of Myanmar’s Rohingya population. But the International Criminal Court does not have jurisdiction everywhere. It does not have jurisdiction over war crimes committed in the territory of states that have not signed up to the court. For that reasons, the International Criminal Court has not become a truly international court. A number of major countries have stayed out of the court’s jurisdiction by refusing to join.

The fact that major states have declined to join feeds the criticism levelled by the United States that the International Criminal Court practices selective justice. But the selection is not made by the court’s prosecutor. It is made by the countries that decline to join. The only way the International Criminal Court can fully counter the criticism is if other states decide to join. Those states would, of course, be opening the possibility that their own officials could be prosecuted. And that is why they do not join.

The investigation of war crimes in Afghanistan and Palestine may lead some of these countries to re-consider and to join the court. The court’s prosecutor has not been overly vindictive. She has been careful to prosecute only where clear war crimes are committed.

Officials who stay on the right side of the law have nothing to fear from the International Criminal Court. On the contrary, prosecution of war crimes by the International Criminal Court raises the prospect of suppressing the atrocities that have been all too common in the international and civil wars of recent years.

One could list numerous examples of war crimes that have gone unpunished. The International Criminal Court aims less at those who commit war crimes at the tactical level than at those who occupy high military or civilian positions who set the policy that allows for war crimes at the tactical level. Universal acceptance by the countries of the world of the International Criminal Court would have a salutary effect.