Since the February 2022 outbreak of the Russia-Ukraine war, there has been global debate about whether war crimes have been committed by Russian soldiers, military leaders and politicians.
Regular protests have been held in Canberra, outside the Russian embassy, where signs proclaim “Putin is a War Criminal”. Australia has also been focusing on war crimes, highlighted by the Ben Roberts-Smith defamation case and the ongoing work of the Office of the Special Investigator. On March 20 it was announced that the first modern Australian war crimes charges had been laid against former SAS soldier Oliver Schulz.
The Hamas-Israel conflict has now become the next arena for possible war crimes prosecutions. Hamas atrocities against Israeli civilians on October 7 have been followed by the Israeli assault on Hamas in the Gaza Strip.
The 24/7 media coverage presents daily evidence of war crimes. The international community from the United Nations Secretary-General to various UN agencies and UN Special Rapporteurs have called out war crimes during the conflict against civilians, and especially children.
Political leaders from around the world have spoken of their horror at these unfolding events, and called for the release of the Israeli hostages, restraints on the use of force, humanitarian pauses, and a ceasefire. Civil society has taken to the streets, the airwaves and the internet to debate, discuss and protest these events. There have even been allegations of genocide.
Against this backdrop, there has been a continued reassertion of Israel’s right to exercise self-defence, and the need to respect international humanitarian law applicable in armed conflicts.
Will there be any accountability for war crimes committed by Hamas, and in Gaza?
How alleged war crimes can be prosecuted
One of the biggest international law projects following the second world war was the development of an international criminal justice system designed to make those responsible for war crimes, crimes against humanity, and genocide, accountable for their actions.
The postwar Nuremburg and Tokyo trials were effectively experiments in how an international criminal justice system would work. Efforts to establish a standing global criminal court were stymied by the Cold War, but then revived following the “success” of the international criminal tribunals for the former Yugoslavia and Rwanda.
This paved the way for negotiation of the Rome Statute and the eventual establishment in 2002 of the International Criminal Court (ICC). There are now effectively two mechanisms for the modern prosecution of war crimes: national courts all over the world, or the ICC in The Hague.
Read more: The International Criminal Court is unlikely to prosecute alleged Australian war crimes – here's why
Israel has clear capacity to prosecute war crimes committed by Hamas, including the taking of Israeli hostages. Prosecutions could be conducted under Israeli criminal law, especially with respect to the October 7 acts of terror that resulted in the murder of numerous civilians.
A draft law seeking to reintroduce the death penalty for terrorism in Israel is currently under debate.
Members of the Israeli Defence Force are also subject to Israeli criminal law. Some have previously been prosecuted for crimes committed in the course of their duties, including acts resulting in civilian deaths, but prosecutions have been rare.
Prosecutions for war crimes committed during the Hamas-Israel conflict could even be commenced by other national courts on the basis of universal jurisdiction. While rare in modern times, states have obligations to prosecute those who have committed war crimes under the 1949 Geneva Conventions.
Internationally, war crimes prosecutions over the past 30 years have become more frequent. Between 1993 and 2017, there were 161 prosecutions by the International Criminal Tribunal for the Former Yugoslavia, resulting in 89 convictions and 18 acquittals.
The International Criminal Tribunal for Rwanda operated between 1995 and 2012, during which time there were 93 prosecutions and 62 convictions. Some appeals are ongoing.
The ICC currently has 123 state parties, including Palestine. The court has issued 40 arrest warrants, and to date has recorded ten convictions and four acquittals. The highest-profile arrest warrant was issued on March 17 2023 for Russian President Vladimir Putin. Russia is not a party to the Rome Statue and Putin remains at large, although his capacity for international travel is constrained out of fear he could be detained by one of the court’s member states.
Given the growing international spotlight and profile of the ICC, especially during the Russia-Ukraine war, there is growing momentum for the court to prosecute war crimes arising from the Hamas-Israel conflict. This extends to the actions of Hamas fighters and leaders, Israeli soldiers, and Israel’s military and political leadership.
Prosecutions are difficult – and rare
However, war crimes prosecutions in The Hague against individuals are not easy. Evidence needs to be collected and timely witness statements taken. This often requires investigations to take place on the ground, which can be dangerous and often impossible during an ongoing conflict.
Formal prosecutions need eventually to be commenced, and the ICC must accept it has jurisdiction to issue arrest warrants. The accused then needs to be detained and brought before the court. While all of these steps generally mirror national criminal prosecutions, war crimes have an international political element and raise particular national sensitivities and emotions.
Attention has turned to whether the ICC’s prosecutor, Karim Khan, will formally seek to prosecute war crimes arising from the Hamas-Israel conflict. On November 17, Khan’s office received notification of a referral of the situation in Palestine from South Africa, Bangladesh, Bolivia, Comoros and Djibouti.
This reinforces an existing referral from March 3 2021 encompassing possible war crimes committed since June 13 2014 in Gaza. While Israel does not recognise the jurisdiction of the ICC, Khan seems determined to investigate and eventually prosecute war crimes arising from the conflict. He visited the Rafah Crossing between Egypt and Gaza on October 29.
Read more: Why is accountability for alleged war crimes so hard to achieve in the Israel-Palestinian conflict?
The ICC is well resourced. Its current budget is €169 million (A$281 million) and it has more than 900 staff. Khan’s office is simultaneously investigating and prosecuting multiple war crimes from around the world, extending from Afghanistan, Kenya, Libya, Georgia to Palestine and Ukraine.
Each investigation requires detailed and thorough investigation before a prosecution can proceed, especially because of the high bar required to obtain a war crimes conviction due to being able to prove the various elements of the crime.
Decisions have to be made as to which of the most serious and grave breaches of international humanitarian law will be prosecuted. That often means decisions are taken to prosecute the most senior military and political leaders because of the clear message that sends to lower ranks that there is no impunity.
There is a growing inevitability that war crimes arising from the Gaza conflict will be prosecuted either nationally or internationally. The wheels of international justice do, however, turn slowly.
Over the past 20 years, vast improvements have been made in accountability for the perpetrators of the most egregious war crimes. Political and military leaders do not enjoy immunity from prosecution. There will eventually be international justice for the victims of war crimes and their families.