Explainer: What War Crimes Are Israel and Hamas Accused of One Year Later?

By Stephanie van den Berg

THE HAGUE – The year-long conflict between Israel and Hamas in Gaza has resulted in numerous legal cases at international courts in The Hague, featuring requests for arrest warrants alongside allegations and denials of war crimes, crimes against humanity, and genocide.

Here are the details regarding the ongoing cases.

WHAT LEGAL CASES ARE THERE STEMMING FROM THE WAR IN GAZA?

Israel is currently involved in two legal proceedings at international courts linked to the Oct. 7 attacks by Hamas and the subsequent war in the Gaza Strip.

The International Criminal Court (ICC) is reviewing a prosecution request for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and two Hamas leaders for alleged war crimes and crimes against humanity.

Additionally, Israel faces accusations of state responsibility for violating the 1948 Genocide Convention in the conflict at the International Court of Justice (ICJ).

WHAT IS THE DIFFERENCE BETWEEN THE ICC AND THE ICJ?

The ICC is an international court established by treaty that prosecutes individuals charged with war crimes, crimes against humanity, genocide, and the crime of aggression. While Israel is not a member of the ICC and does not recognize its jurisdiction, the court admitted the Palestinian territories in 2015 and initiated an investigation into alleged crimes there in 2021. The ICC can prosecute crimes committed by nationals of its 124 member states or on the territories of member states.

On the other hand, the ICJ, known as the World Court, serves as the principal judicial organ of the United Nations for resolving disputes between states and addressing alleged violations of UN treaties.

In December of the previous year, South Africa filed a case against Israel, accusing it of violating the 1948 Genocide Convention in the conflict in Gaza.

AT WHAT STAGE IS THE WAR CRIMES CASE AGAINST ISRAEL’S NETANYAHU?

In May, prosecutors requested warrants for Netanyahu and Gallant, asserting there were reasonable grounds to believe both had committed war crimes and crimes against humanity by systematically depriving civilians in Gaza of essential resources such as food, water, medicine, and energy.

There is no established timeline for judges to reach a decision on the warrants, and pre-trial judges often take months to evaluate such requests. Numerous countries have submitted briefs in this high-profile case. Israel contested the request on Sept. 20. If an ICC trial concerning the Israel-Hamas conflict proceeds, it is likely years away.

WHAT ALLEGATIONS ARE THERE AGAINST HAMAS?

The ICC’s chief prosecutor, Karim Khan, also sought arrest warrants in May for Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh for alleged war crimes and crimes against humanity, including murder, rape, and hostage-taking during the Oct. 7 attacks on Israel.

In September, the ICC announced it had closed the case against Haniyeh following his death in July. The prosecutor is also investigating the reported death of Deif and will dismiss the case against him if confirmed.

WHAT HAPPENS IF THE ICC ISSUES WARRANTS?

All ICC member states are required to arrest and hand over individuals subject to an ICC arrest warrant if they enter their territory.

The court lacks its own police force, so member states must carry out the arrests. Historically, states that have failed to execute warrants issued by the ICC have faced minimal repercussions.

WHAT IS HAPPENING WITH THE GENOCIDE CASE AGAINST ISRAEL?

Last December, South Africa initiated proceedings against Israel at the ICJ for purportedly violating the Genocide Convention.

South Africa has repeatedly requested immediate emergency measures while awaiting hearings on the case’s merits, which can take years to begin. In January, the judges acknowledged the plausibility of Israel violating some Palestinians’ rights under the genocide treaty and directed Israel to ensure its troops refrain from committing genocidal acts.

The court has mandated that Israel guarantee basic food supplies for Palestinians in Gaza and cease its military offensive in Rafah.

South Africa is expected to submit its full case by late October, while Israel has until July next year to respond.

If countries fail to comply with ICJ orders, the court can mandate reparations, which may include financial compensation.