Foreign Country Actions to Place the Israel-Hamas Conflict Before International Courts

Foreign Country Actions to Place the Israel-Hamas Conflict Before International Courts

INSIGHTi

Foreign Country Actions to Place the Israel-
Hamas Conflict Before International Courts
Updated January 26, 2024
The escalation since October 7, 2023, in the Israel-Hamas conflict has reportedly resulted in significant
civilian casualties; destruction of civilian residential areas and infrastructure, including hospitals and
schools; and the displacement of approximately 85% of Gaza’s population. Increased civilian deaths have
also been reported in the West Bank.
Several countries have requested international courts to consider whether conflict parties have committed
violations of international humanitarian law. In November 2023, Bangladesh, Bolivia, Comoros, Djibouti,
and South Africa, as parties to the Rome Statute of the International Criminal Court (ICC), referred the
situation in the “State of Palestine” to the ICC Prosecutor. In December 2023, South Africa brought a case
in the International Court of Justice (ICJ) alleging violations of the Convention on the Prevention and
Punishment of the Crime of Genocide (“Genocide Convention”) concerning “Palestinians in the Gaza
Strip.”
As it did with judicial efforts related to Russia’s alleged crimes in Ukraine, Congress might address
judicial actions related to the current Israel-Hamas conflict through oversight and legislation.
ICC Investigation in the “State of Palestine”
The ICC investigates and prosecutes war crimes, crimes against humanity, genocide, and aggression. The
“State of Palestine” became party to the Rome Statute in 2015 after the General Assembly accorded
“Palestine non-member observer State status in the United Nations” in 2012. Israel is not a party to the
ICC.
An ICC investigation of possible crimes in Palestine predates the current conflict. In 2015, the ICC Office
of the Prosecutor (OTP) opened a preliminary examination, and in 2019 determined that an investigation
was proper. In February 2021, the ICC Pre-Trial Chamber (PTC) determined that the ICC’s jurisdiction
extended to the territories that were occupied by Israel in 1967, comprising the Gaza Strip and West Bank,
including East Jerusalem. The ICC Prosecutor opened the formal investigation on March 3, 2021.
Given the preexisting investigation, the decision of five states to formally refer the situation in Palestine
to the ICC Prosecutor in November 2023 does not alter the authorities and responsibilities of the
Prosecutor or the ICC. A referral from a state party allows the Prosecutor to initiate an investigation
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without seeking PTC approval; for instance, the Prosecutor proceeded from a preliminary examination to
a formal investigation into the situation in Ukraine after over 40 states parties referred the situation after
Russia’s 2022 invasion.
Regarding Palestine, the investigation opened in 2021, and the Prosecutor explained, “extends to the
escalation of hostilities and violence since the attacks that took place on 7 October 2023.” The referral
may signal growing international support for the Prosecutor’s investigation of possible war crimes, crimes
against humanity, and genocide in Gaza. The referral might also signal the referring countries’ intentions
to provide information and other assistance to the ICC regarding this situation.
The United States has opposed the ICC’s investigation, arguing the court lacks jurisdiction because
“Israel is not a party to the ICC and has not consented to the Court’s jurisdiction,” and that “the
Palestinians do not qualify as a sovereign state” capable of delegating jurisdiction to the ICC.
ICJ Genocide Convention Case
The ICJ, the “principal judicial organ of the United Nations,” often exercises jurisdiction over disputes
between states through treaty provisions permitting states parties to submit disputes over interpretation or
application of the treaty to the ICJ. Article IX of the Genocide Convention provides such jurisdiction,
stating that disputes concerning the Genocide Convention between states parties “shall be submitted to the
International Court of Justice at the request of any of the parties to the dispute.” In contrast to the ICC, the
ICJ does not hear criminal cases, and South Africa’s case under the Genocide Convention does not
involve the individual liability or criminal prosecution of any Israeli officials or citizens.
Both South Africa and Israel are parties to the Genocide Convention. Invoking Article IX, South Africa
has asserted that Israel has violated its obligations under the Genocide Convention. In its application,
South Africa alleged that Israel had
• taken actions intended to “destroy Palestinians in Gaza as a part of the broader
Palestinian national, racial and ethnical group” and therefore genocidal in nature;
• failed to prevent genocide against Palestinians in Gaza, in violation of its Genocide
Convention obligations; and
• engaged and continued to engage in genocidal acts against Palestinians in Gaza.
South Africa’s filing also asked the ICJ to “indicate provisional measures,” a preliminary ruling from the
court that could require Israel to cease actions that might constitute further Genocide Convention
violations. On January 26, 2024, the ICJ indicated provisional measures requiring Israel to take all
possible actions, concerning Palestinians in Gaza, to
• prevent genocidal acts;
• ensure its military does not engage in genocidal acts;
• prevent and punish public incitement to genocide;
• enable provision of humanitarian assistance; and
• preserve evidence of violations of the Genocide Convention.
The court did not grant South Africa’s request to require Israel to cease use of military force in Gaza as
part of its order.
The United States has asserted that South Africa’s ICJ case is “meritless,” stating that the United States is
“not seeing any acts that constitute genocide.”

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U.S. Policy and Related Legislation
If Congress takes action related to atrocities accountability in the Israel-Hamas conflict, it might consider
the role of international courts in advancing U.S. policy priorities. Congress has recently, for instance,
expanded U.S. domestic criminal jurisdiction to cover individuals who commit war crimes to include
cases in which neither the perpetrator nor the victims are U.S. persons. This expanded U.S. acceptance of
“universal jurisdiction,” the concept that any competent national judicial system can prosecute
humankind’s atrocities, creates an alternative to international tribunals. U.S. opposition to the ICJ case
might prompt the United States to “intervene” as a Genocide Convention state party, allowing it to make
its own arguments to the court. As the case progresses, certain outcomes might affect international
perceptions of U.S. responsibilities to prevent, punish, and deny support to those who commit genocide
and other human rights violations, under international obligations such as the Genocide Convention,
domestic criminal legislation such as the genocide statute, and the Leahy Law, which prohibits assistance
to military units that commit human rights violations.

Author Information

Matthew C. Weed

Specialist in Foreign Policy Legislation

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