Hamas and Israel, a rosary of war crimes: the investigation opened by the International Court and possible developments


By John

The Messina Marco Lombardoextraordinary professor of International Law at the University of Westminster, could only imagine his book “The Use of Force in Occupied Territory”winner of the Reuter Prize in 2022, would become so topical.
But the situation between Russia and Ukraine first and the conflict between Hamas and Israel today have made the text a real “manual” on the methods of managing the law in armed conflicts and in particular on the legal framework applicable in a context of territorial occupation . In short, on how the law can and must intervene and provide justice for the crimes generated by war.
Which, today more than ever, are not only war crimes, but also against humanity.

In this sense, are Hamas and Israel equally guilty of the ongoing massacre and are both violating the rules of international law in the ongoing conflict? Is there anyone who is doing it more?

Rankings of this type cannot and should not be made. Hamas’s attack on Israeli civilians, with the resulting killings and abductions, undoubtedly violates international humanitarian law (once called the law of armed conflict). The Israeli reaction, which leaves no real chance for Gaza civilians to save themselves but appears to punish the population of the Gaza Strip collectively together with Hamas, equally violates international humanitarian law. Both behaviors could amount to war crimes and, probably, also crimes against humanity. International law does not allow the commission of a crime as a response to another crime.

Primary goods such as water and electricity used as means of war, is it possible?

No, you can’t do it legitimately. The tight control that Israel maintains over Gaza means that Israel is responsible for the provision of food, water, energy and medical supplies to the area under international humanitarian law. In any case, the use of starvation as an instrument of war against civilians is punished as a war crime. Israel claims that the blockade of these goods is not directed against civilians in Gaza but only against Hamas, but the absence of humanitarian corridors leads the United Nations and many non-governmental organizations fighting for human rights to doubt this position.

This is a conflict that also threatens other territories. Are the extension of the armed clashes and the attacks in no way “justifiable”?

The extension of the conflict through military means is justifiable neither in support of Israel nor in support of Palestine. Instead, it is the duty of the United Nations and all states of the international community to work through peaceful means to ensure that all parties respect international humanitarian law and that humanitarian aid reaches civilians as soon as possible. This, of course, concerns both pressure and actions aimed at freeing Israeli hostages and punishing Hamas militiamen, and actions aimed at inducing Israel to distinguish between measures against Hamas and measures against innocent Palestinian civilians.

How can international diplomacy stem this conflict?

What is desirable at this moment is a ceasefire to facilitate the release of the Israeli hostages without worsening the already dramatic living conditions of Palestinian civilians. The United Nations is the ideal forum to undertake this path, but unfortunately the opposition between the USA and Russia over the war in Ukraine led to a stalemate in the Security Council which did not find a common position at the meeting on 16 October.

What role can the International Criminal Court have?

The International Criminal Court asserted in 2021 that it has jurisdiction over war crimes, crimes against humanity, and genocide committed by Palestinian citizens in every corner of the globe (including Israel) and committed by citizens of other nations (including Israelis) on the territory Palestinian. The Prosecutor has already opened an investigation in the same year and a few days ago recalled that any international crimes committed during the brutal attack by Hamas and Israel’s response fall under the jurisdiction of the Court. As stated above, it is highly likely that war crimes and crimes against humanity have been committed or are ongoing by both sides.

What consequences could an intervention by the Court bring?

The timing of the Prosecutor’s action is not predictable, but the consequences are. Here too, the Court’s action could translate into an arrest warrant for those who committed crimes both in Palestine and in Israel, as happened to Vladimir Putin.