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Should Hamas be prosecuted for war crimes by the international court?

October 7, 2023, was the bloodiest day in Israeli history. As the world now knows, in the early hours that morning, during a Jewish holiday, more than a thousand Hamas terrorists invaded Israel from Gaza, aiming to massacre as many people as possible. By the end of the day, they had murdered over 1,000 Israelis, wounded thousands more and taken about 150 men, women and children as hostages, all with unspeakable savagery.

One of the world’s deadliest terrorist attacks ever, the Hamas assault was also the largest slaughter of Jews since the end of the Holocaust. President Joe Biden, like many world leaders, denounced Hamas’ acts as “pure, unadulterated evil,” but the international response cannot be limited to words alone.

The massacre by Hamas presents the International Criminal Court with a golden opportunity to restore its own flagging reputation by promptly indicting the Palestinian officials and terrorists responsible for the horrific crimes of October 7. The ICC was originally established to prosecute the worst war crimes and crimes against humanity, but two decades of ineffectiveness, professional lapses, political bias and misplaced priorities have frittered away the Court’s goodwill with the public. This is a chance for the Court to switch to the right side of the fight for justice.

As President Biden said, Hamas’ assault is a “violation of every code of human morality.” Among the crimes committed by Hamas terrorists, for which Hamas leadership also bears legal responsibility, are: intentionally directing attacks against the civilian population, intentionally directing attacks against vehicles involved in humanitarian assistance (ambulances), murder and willful killing, forcible transfer and deportation, unlawful confinement and imprisonment, torture, rape, ethnic persecution, enforced disappearance, inhumane acts and other willful acts causing great suffering, taking of hostages, mutilation, outrages upon personal dignity and degrading treatment, use of civilian shields and acts of genocide. All these are crimes listed in the Rome Statute—the ICC’s founding treaty. The crimes are grievous and on a massive scale, and it is evident that no justice is to be had in any Palestinian court. It is precisely horrors like this that the ICC was created to prosecute.

The unprecedented orgy of violence and barbarism against civilians, graphically recorded and celebrated by Hamas, provides ample video, forensic and testimonial evidence for prosecution, as do the proud claims of responsibility by its leadership. Hamas’ own videos—distributed on social media and even utilizing the social media accounts of the victims—document terrorists hunting down and executing children, young partygoers, middle-aged homemakers and elderly Holocaust survivors. Others show terrorists parading corpses and beaten and raped hostages through cheering crowds in Gaza while chanting for the blood of Jews.

Bloodied and mutilated bodies of soldiers and civilians have been found at the crime scenes, many with signs of gruesome torture. Some had been handcuffed and incinerated. Others were beheaded.

Survivors’ accounts, together with videos, document parents and siblings being forced at gunpoint to watch the murder of their children, and vice versa. In one case, a teenage boy, shielded by the bodies of his murdered parents, survived being shot to give detailed testimony by phone to his anxious grandfather in the United States as the murderers continued their killing spree. Together, the documentary, forensic and testimonial evidence of Hamas’ crimes is overwhelming and more than adequate for conviction.

To be sure, there’s room for serious doubt about ICC jurisdiction over Palestinian crimes. There is no Palestinian state and no sovereign Palestinian territory, apparently placing the crimes outside the Court’s territorial jurisdiction. However, in a joint effort with the ICC Prosecutor to produce legal charges against Israelis, Palestinian officials purported to join the Rome Statute in 2015, and in a 2021 ruling, the ICC and its Prosecutor claimed for themselves jurisdiction over the “situation in Palestine.” The Palestinians and the Court have thus neutralized any excuse for inaction on Palestinian terrorism. Although the 2021 ruling has been justly criticized, the Court can hardly turn around now and deny jurisdiction in order to avoid prosecuting Palestinian crimes.

Hamas will certainly try to blunt calls for justice by pointing a finger at Israel. Hamas organs such as the Gaza Health Ministry claim that Israel targets civilians even though Israel’s ethical code and built-in legal review—which requires army lawyers to approve all targeting decisions—makes that a practical impossibility. Hamas allies have likewise claimed that international law forbids Israel’s use of legitimate methods of warfare, such as siege. But these charges against the Jewish state make a mockery of international law, which affords invaded countries like Israel every right to defend themselves, even at the cost of mass collateral enemy civilian casualties, so long as the targets are legitimate. The comparison of Israeli and Hamas actions is morally obscene: Israel’s military emulates legal practices that have been used by NATO forces elsewhere; Hamas’ depraved bacchanal of beheading, rape and carnage, by contrast, is legally indefensible and can be compared only to acts of the world’s worst war criminals in recent decades.

The Court has shown itself capable of acting speedily when necessary. In March, the ICC issued lightning-quick arrest warrants against Russian President Vladimir Putin and mid-level Russian officials for crimes committed in Ukraine including the kidnapping of Ukrainian civilians. It is true that the ICC had a head start on the Russia warrants, because its Prosecutor had already begun a preliminary investigation on different accusations related to the 2014 Crimea invasion. However, the same is true for potential warrants against Palestinian terrorists, as the ICC opened its preliminary investigation on “the situation in Palestine” in January 2015. Should it decide to, the ICC can issue arrest warrants for senior and mid-level Hamas officials within days, or weeks at most.

Saturday’s attacks represent a level of barbarity shocking even for Middle East terrorism and modern total warfare. Unless its leaders and terrorists face serious punishment, terrorist organizations around the world will be emboldened to emulate Hamas’ campaign of massacre, rape, hostage taking and brutality. The ICC has been granted a unique chance to redeem itself and restore its credibility as a genuine institution of international justice. Should it fail to rise to the occasion, the ICC will have proved again that its detractors are correct that it is a politicized, biased and ineffective entity.

Avi Bell is a professor of law at Bar Ilan University and the University of San Diego. Adv. Avraham Russell Shalev is a lawyer and a researcher at the Kohelet Policy Forum.

The views expressed in this article are the writers’ own.

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