Israel and Hamas both must hold accountable for inflicting war over people of Gaza. ICC's Jurisdiction and Authority in Gaza #Gaza #Accountability #Palestine #Israel

The ceasefire agreement has elicited a mix of relief and apprehension over what lies ahead in Gaza, where Israeli strikes have claimed at least 67,869 lives, and thousands more are presumed buried under collapsed structures.

"We passed entire neighborhoods that had been completely razed," Mahmoud recounted. "Nothing remains. Many of the areas we once knew are utterly unrecognizable."

The International Criminal Court (ICC), established by the 1998 Rome Statute, prosecutes individuals for genocide, crimes against humanity, war crimes, and aggression when national courts are unwilling or unable to do so. Gaza falls under ICC jurisdiction because Palestine acceded to the Rome Statute in 2015, granting the court authority over crimes committed on Palestinian territory since June 13, 2014. Israel, not a party to the statute, disputes this jurisdiction, arguing it never accepted Palestinian statehood and that its own courts handle such matters. However, in February 2021, ICC Pre-Trial Chamber I affirmed jurisdiction, rejecting Israel's challenges and opening the door for investigations into alleged atrocities by all parties.

The ICC's Office of the Prosecutor (OTP) launched a full investigation in March 2021 into the "Situation in the State of Palestine," covering Gaza, the West Bank, and East Jerusalem. This probe examines events like the 2014 Gaza War, ongoing settlement activities, and violence since October 7, 2023, when Hamas-led attacks killed about 1,200 Israelis and took hostages, triggering Israel's military response.

Key Actions in the Gaza Context

The ICC's most significant step came on May 20, 2024, when Prosecutor Karim Khan sought arrest warrants for: 

• Hamas leaders: Yahya Sinwar (deceased, killed by Israel in October 2024), Mohammed Deif (killed in July 2024), and Ismail Haniyeh (assassinated in July 2024), accused of crimes against humanity (murder, extermination, torture, rape) and war crimes (murder, cruel treatment, taking hostages, using human shields) related to the October 7 attacks.

• Israeli officials: Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, charged with war crimes (starvation as a method of warfare, attacks on civilians) and crimes against humanity (murder, extermination, persecution, other inhumane acts) for allegedly directing policies that restricted aid, water, and electricity to Gaza, leading to famine risks and civilian deaths. 

These applications marked a historic bid to hold high-level figures from both sides accountable. Warrants for the Hamas figures were issued in November 2024 after confirming sufficient evidence, while those for Netanyahu and Gallant remain under review by Pre-Trial Chamber I, delayed by procedural challenges and external pressures.

The ICC has also investigated broader patterns, including Hamas's use of indiscriminate rockets and human shields, and Israel's alleged disproportionate strikes, blockade enforcement, and settlement expansions deemed illegal under international law.

Challenges and Criticisms

The ICC faces formidable hurdles in Gaza:

• Non-Cooperation: Israel rejects ICC authority, refusing to surrender suspects and labeling the court "antisemitic." It has sanctioned ICC officials and lobbied allies. Hamas, based in Gaza, similarly evades arrest.
• Enforcement Gaps: The ICC relies on states for arrests and evidence collection; without custody, warrants are symbolic. Over 20 arrest warrants from other conflicts remain unexecuted.
• Political Backlash: The U.S., not an ICC member, imposed sanctions on Khan in 2025 under the Trump administration, citing bias, while previously threatening the court over Afghanistan probes. Allies like the EU and UK have mixed responses, with some supporting warrants but urging caution.
• Resource and Scope Limits: The Gaza investigation strains the ICC's budget and manpower, with critics arguing it diverts from African cases (a historical bias claim). Evidence gathering in active war zones is perilous, relying on open-source data, victim testimonies, and NGOs like Human Rights Watch.
• Impartiality Debates: Supporters praise the "both sides" approach as balanced; detractors, including Israel, accuse politicization, while pro-Palestinian groups say the court moves too slowly on Israeli accountability. 

Impact and Potential Outcomes

The ICC's role has amplified global scrutiny, pressuring states via travel bans (e.g., ICC states parties could arrest Netanyahu if he visits) and influencing diplomacy. Warrants have isolated Israel diplomatically—over 50 countries, including Spain and Ireland, back the court's jurisdiction—and bolstered ICC legitimacy by addressing non-state actors like Hamas.

However, tangible justice remains elusive amid the conflict's toll: over 67,000 Palestinian deaths (per Gaza Health Ministry figures), widespread destruction, and stalled ceasefire talks. Successful prosecutions could deter future crimes and affirm international law, but failure risks eroding the ICC's credibility. Broader reforms, like UN Security Council referrals (veto-prone) or universal jurisdiction via national courts, could complement efforts.

In Gaza, the ICC symbolizes accountability's promise but underscores enforcement's fragility, highlighting the need for political will to translate legal tools into peace and justice.