Could a warning by the ICC deter war crimes in Israel-Gaza conflict?

Chief Prosecutor Karim Khan of the International Criminal Court (ICC) must send a message that he is monitoring developments and must warn against carrying out potential war crimes as heavy bombardment of Gaza continues, human rights groups and legal experts say.

Khan broke his silence last week on the Israel-Gaza war, which began with an October 7 attack by the armed wing of the Palestinian group Hamas on Israel, in an interview with Reuters, saying the ICC has jurisdiction over possible war crimes carried out in the occupied Palestinian territory and Israel.

However, analysts and rights groups said Khan should have explicitly warned Hamas and Israel against committing crimes by making it clear that they would be subject to investigation.

They added that Khan’s voice may have the power to deter some war crimes and to send a message to both Palestinian and Israeli victims of this conflict that they will not be abandoned by the court.

“What I did not hear, and what I would have liked to hear, is a stronger statement [from Khan] that the office of the prosecutor is collecting evidence and is monitoring the situation,” said Adil Haque, a law professor at Rutgers University in the United States.

Khan’s office has already been investigating war crime allegations in the occupied Palestinian territory since 2021 – mainly from the Israeli war on Gaza in 2014. However, no formal statement about the ongoing war has been issued despite the office doing so in conflicts such as Russia’s invasion of Ukraine and the atrocities carried out this year in Sudan’s western province Darfur.

Since October 7, at least 3,361 Palestinians and at least 1,400 people in Israel have been killed.

Accusations of wrongdoing on both sides

Human Rights Watch (HRW) verified four videos from the Hamas attack where fighters killed people who appeared to be civilians and said these incidents “should be investigated as war crimes” while Amnesty International examined video evidence that also shows deliberate “shooting at civilians and taking civilians as hostages”.

Israel has responded to Hamas’s surprise attack by cutting off the supply of food, water, fuel and electricity into Gaza, which “will undoubtfully cost civilian lives and constitutes collective punishment”, according to the United Nations.

Israel has also launched relentless air attacks on the Gaza Strip, killing entire families and destroying neighbourhoods. An HRW report also found that Israel has used white phosphorus, an incendiary weapon that can burn flesh down to the bone and set fire to all nearby structures. Its use magnifies the dangers for civilians in Gaza – one of the most densely populated regions in the world, said the report.

On October 17, an explosion struck the al-Ahli Arab Hospital in Gaza City – where thousands of Palestinians were seeking medical care and shelter from the ongoing bombardment – killing at least 500 people, according to Gaza’s health ministry.

While Israel denies responsibility for the hospital attack, its actions in Gaza may already amount to war crimes under international humanitarian law, legal experts told Al Jazeera.

Balkees Jarrah, the associate director for HRW’s International Justice Program, said a public statement is critical: “It is important [Khan] signals his willingness to expand his investigation into new crimes that are being committed right now.”

Statements a deterrent

In the past, former ICC Chief Prosecutor Fatou Bensouda issued warnings that deterred Israel from committing war crimes, said Ahmed Abofoul, a legal researcher and advocacy officer at Al-Haq, a Palestinian human rights organisation based in Ramallah in the occupied West Bank.

In 2018, Bensouda warned Israel not to forcefully evict a Palestinian community from Khan al-Ahmar, a village in the occupied West Bank sandwiched between illegal Israeli settlements, saying such action could constitute a war crime.

In a statement, Bensouda said that she would continue to keep “a close eye on the developments on the ground and will not hesitate to take any appropriate action”.

Israeli officials delayed the eviction out of fear that it could invite an ICC probe.

“This [example] unequivocally shows that such preventative statements [from the ICC chief prosecutor] can provide sufficient deterrence [to war crimes],” Abofoul told Al Jazeera.

When asked last week by the BBC if Israel’s ongoing aerial offensive on Gaza was excessive and violated the boundaries of international humanitarian law, Khan responded that he could not make an assessment about fighting that was just “a few days old”.

But Haque told Al Jazeera that there is more than enough evidence to start an investigation against the Israeli army for its actions in Gaza.

“There are strong indications that the Israeli army has intentionally directed attacks against civilians, including medics, and civilian objects such as entire apartment buildings, and the war crime of launching attacks knowing that they will cause excessive or disproportionate harm to civilians,” he said.

“Depending on the duration of the Israeli siege [on Gaza], and the effects on civilians, the war crime of starvation may be implicated as well,” Haque added.

Palestinian victims need to know ‘justice will be provided’

Khan was quite vocal after Russia attacked Ukraine on February 24, 2022.

Four days after the invasion, he announced that his office would open investigations into possible war crimes committed on Ukrainian territory.

Abofoul, whose family is among the two million people trapped in Gaza, said Palestinians want the ICC to express an equal commitment to probing war crimes that Israel may be committing.

“Palestinian victims in Gaza need to know that these crimes [against them] won’t go unnoticed and that justice will be provided to them. They need to feel seen by the court, or they will feel abandoned,” he said, speaking from his home in the Netherlands.

Mark Kersten, an assistant professor in criminology and criminal justice at the University of the Fraser Valley in Canada, agreed.

“I think, for many people who have experienced atrocities in Israel-Palestine or elsewhere, it’s really powerful when a court reminds the world that it is on their side,” he said. “I think that is an extremely powerful symbolic gesture.”

Foreign interests

However, political pressure could compromise any impartial investigation, even if Khan does launch a probe, analysts said.

Khan’s approach to investigations in Afghanistan – where his office decided to “deprioritise” crimes committed by US personnel to focus on the Taliban’s abuses – established a worrying precedent, the analysts pointed out.

Khan’s decision followed years of US pressure against the court to drop a probe against its soldiers. Former US President Donald Trump even sanctioned Bensouda and other ICC officials in 2020.

Powerful Western countries that finance a number of the ICC’s proceedings could use that influence to pressure the court into not investigating Israel, said Srinivas Burra, an assistant professor in legal studies at South Asian University in New Delhi, India.

“[Western] political considerations may play a role in the ICC’s whole process, which was evident in the context of Afghanistan,” he said.

Further complications may arise from Israel’s legal relationship with the ICC.

Because Israel is not a party to the Rome Statute – the treaty that established the ICC in 2002 – Burra suggested it had no legal obligation to cooperate with its proceedings.

“It will be difficult to say conclusively that there will be fair cooperation [with the court] from Israel’s side,” he told Al Jazeera.

‘The least the court could do’

Going forward, Khan’s words and actions on Israel and Palestine have the power to restore – or damage – the court’s credibility worldwide, according to some observers.

“It’s ultimately up to ICC officials to guard their own independence,” said Jarrah of HRW. “But ICC member countries can and should help to create the space for that independence by being firm and consistent in their support for impartial justice across the court’s docket.”

Haque believes Khan has leverage.

According to the Rutgers professor, Western states have specifically designated funds to facilitate an ICC probe of Russia’s crimes in Ukraine. He suggested that Khan could “simply reverse” this arrangement and insist that any funding goes to supporting the court as a whole, not particular investigations.

“That would create a dilemma for the West because if states withdraw funding to investigate Israel, then they would also be withdrawing money to investigate Russia,” Haque told Al Jazeera.

During Khan’s interview with Reuters, he called for more funding for the court as a whole, including for the ongoing investigation in the occupied Palestinian territory.

“Palestine – like every other situation that we have – is underfunded and under-resourced and it is a challenge to state parties and the international community whether they wish to give us the tools to do the job,” Khan told Reuters.

Khan’s press office declined to speak to Al Jazeera and would not comment on whether a probe would be launched into any possible war crimes committed during the current conflict.

For now, Palestinians like Abofoul want the court to acknowledge the abuses in Gaza, where more than 1,000 children have been killed by Israel’s offensive since October 7, and try to mitigate the extent of war crimes by telling the warring parties they are being monitored.

“How can Palestinians trust and expect justice from a court that doesn’t try to prevent perpetrators by words?” Abofoul asked.

“That’s the least the court could do.”