Can the ICC hold Israel and Hamas accountable for war crimes?

During the early morning hours of July 30^th, 2014, Israeli shells bombarded a United Nations Relief and Works Agency (UNRWA) for Palestine Refugees School housing 3,300 Palestinians, killing 15.

According to a briefing by the organisation Security Council Report, the UN Relief and Works Agency for Palestine Refugees (UNRWA) Commissioner, General Pierre Krahenbuhl, stated that the precise location of the school and that fact that it was housing thousands of Internally Displaced Persons (IDPs) was communicated to the Israeli army 17 times including just hours before the fatal shelling.

In addition to the attacks, the UNRWA stated that it had earlier found a cache of rockets at one of its schools in the Gaza Strip, lending credence to the accusation by Israel that Hamas was using these shelters, and they were therefore legitimate military targets.

The continuous shelling of designated UN Shelters and schools by the Israeli army has moved the United Nations Security Council to hold an urgent meeting to address the deteriorating humanitarian situation in Gaza.

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In the 23 days since the beginning of the Gaza invasion, the accusations and counter-accusations of atrocities between Israel and Hamas has taken centre stage, leaving the victims of the conflict exposed, without hope for an end to the violence.

On July 25^th, the Palestinian Authority filed criminal complaints at the ICC, accusing Israel of war crimes in its ongoing campaign in Gaza, a war whose death toll now includes more than 1200 Palestinians and 61 Israeli soldiers.

It is likely that Palestine will seek a UN Security Council referral of the Gaza situation to the ICC. In cases where crimes that fall within the mandates of the articles of the Rome Statute occur in non-member states, the UNSC is at liberty to make referrals to the ICC as is the cases of Darfur in Sudan, and Libya.

THOROUGH INVESTIGATIONS

At this juncture, the considerations of the UN Security Council and the probability of referral of the situation to the International Criminal Court become most imperative. The greatest challenge is that Israel is itself not a state party to the Rome Statute.

The Palestinian Authority issued a declaration to accept the jurisdiction of the ICC over Palestine in 2012. Its acceptance of ICC jurisdiction was rejected by the then ICC Chief Prosecutor, Luis Moreno-Ocampo, as he could not make a determination as to whether Palestine was a state as per the tenets of the Rome Statute.

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The challenge facing such a decision by the UNSC lies in both the legal limitations of the ICC and also the political considerations to be undertaken by the member states of the Security Council. As with such deliberations, the matter is likely to take a long and arduous course despite the best of intentions.

Moreover, should such a referral be made, the ICC would be forced to conduct thorough investigations into all parties’ actions, in order to obtain justice for victims of the conflict.

All this notwithstanding, it is clear that there is an incredible humanitarian crisis looming, and both the attacks on UNRWA-designated shelters and the use by Hamas of shelters for storing weapons leave the UN Agency and the IDPs it houses in grave danger.

AN ICC DETERRENT

Both the attack by Israel of designated UNRWA shelters and schools, and their use for weapons storage by Hamas are to be condemned.

The fundamental questions thus remains: while the ICC is intended to act as a deterrent to war crimes, in an ongoing conflict situation, can the ICC adequately provide any sort of deterrent against aggressive forces, especially when the parties involved are not state parties to the Rome Statute?

Moreover, how would the findings of the Court bring justice to those caught up in the ongoing conflict?

At this stage, it is increasingly clear that both Israel and Hamas are actively engaged in what could constitute crimes of war, by attacking designated humanitarian sites and using designated shelters to harbour weapons and militants.

These actions have placed the most vulnerable and unarmed right in the middle of an escalating situation. For this, both Israel and Hamas should be held accountable.

Update: The former chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has recently said that Palestine is eligible to join the Court.