ICC Forum

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Comment on the Israel and Hamas Question: “With regard to the Israel/Hamas conflict that erupted on October 7, 2023, to what extent can the International Criminal Court deter crimes in the region, facilitate a reduction of violence, provide accountability for criminality in the conflict, or advance post-conflict reconciliation between Israelis and the Palestinian people?”

I. Introduction

On October 7, 2023, a widespread surprise attack on Israel was launched by Hamas leaders, commanders, and militants in which they invaded Israeli towns from the Gaza Strip. Since then, an ongoing conflict between Israel and Hamas has ensued. Devastatingly, many civilians in both Israel and the Palestine area have lost their lives as a result. Since October 7, 2023, there have been numerous assertions made that various crimes are being, or have been, perpetrated by various persons associated with the conflict. Among such assertions, multiple entities have been accused of committing genocide, crimes against humanity, and war crimes.

The Rome Statute grants the International Criminal Court (ICC) jurisdiction over genocide, crimes against humanity, war crimes, and crimes of aggression. Article 6 of the Rome Statute defines genocide, Article 7 defines crimes against humanity, and Article 8 defines war crimes that may be accused and prosecuted by the ICC. In this comment, I examine various crimes that have been asserted against Hamas and Israel as the conflict in the Middle East has ensued. Within this comment, I use the provisions set forth in the Rome Statute to examine various accusations and claims, and I limit my analysis to crimes that have been asserted against Hamas officials and militants and the Israeli military and leaders. It appears clear that numerous Rome Statute violations were committed by Hamas on October 7, 2023, and may be charged against Hamas leaders who were in charge of planning and organizing the widespread attack. Regarding Israeli forces, there appears to be much less clear-cut evidence that violations under the Rome Statute have occurred, and in many instances, much more investigation is needed before such forces could be validly prosecuted for the crimes mentioned above in the Rome Statute.

II. Rome Statute Violations and Accusations Committed By Hamas

In my opinion, there is little dispute that Hamas leaders, commanders, and combatants committed Rome Statute violations during their attack on Israel in early October 2023. In the early morning of October 7, 2023, Hamas launched a surprise attack on Israel in which they stormed into Israeli towns from the Gaza Strip. The attacks were systematic and carefully planned, with Hamas units given orders to target separate objectives, including military bases, kibbutzim, roads, and towns.1 Additionally, another set of units were tasked with capturing “as many hostages as possible.”2 The effects of these attacks were devastating. A total of roughly 1,200 people were killed, among which included both civilians and military personnel.3 Within the death toll were 364 people killed at a music festival, not far from a kibbutz included on the targeted list.4 Furthermore, around 240 people were taken hostage, a number that includes both children and elderly persons.5 These brutal and vicious attacks were largely believed to have been planned and orchestrated by Yahwa Sinwar, the head of Hamas in Gaza, and Mohammed Deif, one of Hamas most powerful military commanders.6

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A. Genocide Accusations from October 7, 2023

The first of the Rome Statute crimes that Hamas militants and leaders may have committed on October 7 is genocide under Article 6 of the Rome Statute. Article 6 of the Rome Statute states:

For the purposes of this statute, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;

  2. Causing serious bodily or mental harm to members of the group;

  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

  4. Imposing measures intended to prevent births within the group;

  5. Forcibly transferring children of the group to another group.7

Hamas units both killed Israelis and caused serious bodily harm and mental harm to Israelis. As mentioned above, around 1200 Israelis were killed because of these attacks. In fact, one captured Hamas attacker even stated that the “mission was to kill […] anyone we saw.”8 Aside from the killings, many more were wounded, and the horrors of these acts clearly forced mental harm upon the Israeli people, many of whom likely did not know whether they would make it past the day alive.

The toughest element the ICC Prosecutor would face in proving genocide under Article 6 of the Rome Statute is the intent element. While the above elements are physical elements that can be objectively proven, the intent element is a mental element that requires the subjective analysis of those perpetrating the crimes. It must be shown that in committing the acts there existed an intent to destroy. The strongest argument in favor of Hamas-directed attacks on October 7, 2023 satisfying this element of genocide can be found in the Hamas Covenant of 1988. There, Hamas opposition and hostility toward Israel is explicitly stated in the preamble: “Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it.”9 Essentially, this charter outlines the identity and purpose of Hamas as an entity. Thus, this statement, and an overall theme of obstruction of Israel throughout the charter, persuasively serves as indication that Hamas’ surprise attack—which killed and injured thousands of people—was done with the intent to destroy Israel.

Yet, there remains a valid argument that Hamas’ October 7, 2023 attacks do not constitute the necessary intent under Article 6 of the Rome Statute. In the view of proponents of this argument, the requisite intention is so narrowly interpreted that the charter is not enough per se to prove that Hamas possessed the necessary intent in these attacks. For example, Raz Segal, an associate professor of Holocaust and genocide studies at Stockton University, states:

I definitely see intent to kill a significant number of members of the group, to instill unbelievable trauma and terror among members of the group […] But I don’t see intent to destroy in relation to the Hamas attack that would render it an act of genocide.10

I recognize Segal’s argument here; however, I disagree. While it is of course difficult to discern intent given its nature as a mental element, I struggle to perceive how statements in founding documents indicating a group’s purpose to obliterate a nation would not satisfy this element. In my view, if intent to destroy cannot be found here, I’m not sure in what instance it can.

The final element of genocide that the acts be committed against, in whole or in part, a national, ethnic, racial, or religious group is rather easy to prove here. Around 1,200 Israelis were killed and many more were threatened or wounded physically and mentally. Israelis constitute a national group under the nation of Israel. Thus, in my view, with all the elements satisfied, I believe Hamas militants and leaders, specifically Yahwa Sinwar and Mohammed Deif, are likely liable for genocide against Israel under Article 6 of the Rome Statute.

B. Crimes Against Humanity Accusations from October 7, 2023

I also believe that Hamas militants and leaders committed crimes against humanity under Article 7 of the Rome Statute in their attacks on Israel on October 7, 2023. In fact, I think there is a clearer pathway to holding Hamas militants and leaders accountable for crimes against humanity than genocide regarding the October 7, 2023 attacks. There are eleven types of acts listed in Article 7 that constitute crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”11 Of the 11 acts listed, Hamas units appear clearly liable for two: murder and rape.12 I detailed above that 1200 people were brutally murdered by Hamas units. It is also widely believed that these attacks were specifically planned and ordered by powerful Hamas leaders, Yahwa Sinwar and Mohammed Deif.13 While investigation is needed to clarify the exact roles these two leaders played in the October 7, 2023 attacks, the nature of the attacks were clearly planned and organized.14 Thus, the murders committed by Hamas militants on October 7, 2023 appear to also satisfy the “widespread and systematic attack” requirement of Article 7 of the Rome Statute.

Furthermore, Israeli Police are currently investigating sexual violence that occurred during the attacks, and “have collected more than 1,000 statements and more than 60,000 video clips related to the attacks that include accounts from people who reported seeing women raped.”15 One paramedic, tasked with searching Kibbutz Be’eri for anyone still alive after the attacks, described a gruesome scene when he found a murdered teenage girl lying face down in a home:

Her pants are pulled down toward her knees and there’s a bullet wound on the back side of her neck near her head […] There’s a puddle of blood around her head and there’s remains of semen on the lower part of her back.16

Thus, it appears clear that rape and severe sexual violence were part of the October 7 attacks. Furthermore, as mentioned in the previous paragraph, the sheer size and organization of these attacks indicates their widespread and systematic nature. Thus, while it is admittedly a bit more difficult to prove that the October 7, 2023 attacks constitute genocide under the Rome Statute, it seems more clear that at the very least, crimes against humanity, committed by Hamas units, occurred during the October 7 attacks on Israel; Hamas leaders, Yahwa Sinwar and Mohammed Deif, are the likely leading subjects of guilt for these crimes.

C. War Crimes Accusations from October 7, 2023

Hamas units and their leadership may also be responsible for war crimes under Article 8 of the Rome Statute. Article 8 states that “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”17 Of the defined war crimes in Article 8(2), I argue that Hamas militants and leadership should be liable for “wilful killing” under Article 8(2)(a)(i) and for the “taking of hostages” under Article 8(2)(a)(viii).18 As mentioned throughout this comment, the October 7 attacks were clearly planned, with the likely masterminds being Yahwa Sinwar and Mohammed Deif. Furthermore, Hamas militants were clearly involved in wilful killing, especially considering the sheer amount of Israeli deaths as a result of their attacks. Additionally, 240 hostages were reportedly taken on October 7.19

Furthermore, Hamas units and leadership are likely liable under Article 8(2)(b)(i) of the Rome Statute—“Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”—and Article 8(2)(b)(xxii), which specifies as a war crime:

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Article 7(2)(f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.20

Among the 1,200 people reportedly killed on October 7, many were civilians.21 Furthermore, the evidence for rape is previously presented above in this comment. Thus, for these reasons, it appears that these war crime violations as specified by the Rome Statute may have also occurred.

D. Post October 7

Aside from the October 7 attacks, Hamas units and leadership may be plausibly liable for using human shields throughout the current conflict with Israel. Article 8(2)(b)(xxiii) of the Rome Statute specifies that the use of “human shields” is a war crime.22 Specifically, the article states that the following is a war crime: “Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.”23 Regarding Hamas, Israel Defense Forces (oPt) have been outspoken accusing Hamas of using human shields. According to the oPt, Hamas operates military networks through a tunnel system that is placed under civilian areas and structures.24 Furthermore, the oPt has released infographics depicting what they claim to be proof that key military locations have been placed under civilian structures, such as hospitals.25 Jason Willick of the Washington Post argues that Hamas’ use of human shields “poses agonizing moral dilemmas for anyone concerned about protecting civilian lives.”26 Willick couples this with the fact that Hamas leaders and officials have released statements indicating a willingness to sacrifice civilians lives in favor of achieving political objectives.27 Regarding the tunnel network, he states that “One official of the terrorist group, Moussa Abu Marzook, recently stressed that Gaza’s tunnel network is for protecting Hamas fighters and declared the United Nations responsible for protecting Gazan civilians.”28 All of this indicates that an argument certainly exists to prosecute Hamas leaders for employing human shields throughout this conflict. However, a further investigation is certainly necessary to determine whether the evidence presented by the oPt is credible. If so, it appears that Hamas, and specifically its leaders, are likely also liable for the war crime of using human shields.

III. Israel

A. Self-Defense and Governing Law To Which Israel Must Adhere

While in some respects, it is apparent that Hamas units and its leadership committed some variation of international humanitarian law (IHL) and Rome Statute violations on October 7, 2023, Israel’s liability under the Rome Statute is less clear cut. Regarding Israel’s response to the atrocities committed, a common point of discourse is to assert that Israel has the right to retaliate in self-defense to the crimes committed against them. Article 51 of the U.N. Charter includes self-defense provisions:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.29

However, it must be noted that in responding in self-defense, Israel is still subject to IHL rules stipulated in the Fourth Geneva Convention of 1949. Moreover, regardless of crimes committed by the other side of a conflict, war crimes are not permitted even if done in retaliation. This means that IHL laws are non-reciprocal, and violations “can never be justified through claims that another party has committed violations.”30 For example, Israel would not have the right to commit war crimes in their conflict against Hamas merely because Hamas has committed war crimes against them.

B. Accusations of Rome Statute Violations Made Against Israel

Several of Israel’s actions in the weeks following the October 7, 2023 attacks have been accused as war crimes. First among Israel’s actions accused of constituting war crimes have been widespread attacks through rocket fire and bombings that have killed thousands of Palestinian civilians, including children.31 Such attacks may potentially be prosecuted under a number of provisions in Article 8 of the Rome Statute. Each of these provisions are listed here:

  1. Article 8(2)(a)(i): Wilful killing.

  2. Article 8(2)(a)(iii): Wilfully causing great suffering, or serious injury to body or health.

  3. Article 8(2)(b)(i): Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.

  4. Article 8(2)(b)(ii): Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.

  5. Article 8(2)(b)(iv): Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

  6. Article 8(2)(b)(ix): Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.32

Whenever there are civilian deaths, it is important to scrutinize whether any war crimes have occurred under the Rome Statute. However, just the fact that civilians have died does not mean that war crimes have been committed. Key to determining whether war crimes occurred is an investigation determining whether Israel distinguished between civilians and military personnel and objects in their attacks. As such:

A full investigation is required to learn facts that can reveal whether Israel distinguished between civilian and military objects and took the precautions required by law for each attack to minimize harm to civilians and civilian structures and to ensure that its attacks are proportionate.33

This means that even if military personnel and civilians are distinguished between before an attack, an attack may still be a crime under the Rome Statute if the amount of civilians killed is disproportionate to the value of the military objective.

Furthermore, an investigation is necessary to determine whether affected civilian structures were protected by IHL. Cordula Droege, Chief Legal Officer of the International Committee of the Red Cross, highlights that these structures lose this protection “[I]f they are used outside of their humanitarian function to commit acts harmful to the enemy.”34 If Hamas

  1. has employed a “human shields” tactic and placed military functions in or closely surrounding protected civilian buildings,

  2. Israel in good faith targeted such buildings in an attempt to suppress such military functions, and

  3. Israel’s attacks were proportionate to their perceived threat and military objectives,

Israel would have a strong argument that these attacks on the Gaza Strip are not war crimes. As it stands now, based on the evidence that is available, it does not appear that Israel is liable for these Rome Statute violations for their rocket fire in this conflict.

Furthermore, there are reports that Israel has cut off food, water, electricity, and fuel from reaching the people of the Gaza Strip and is accused of blocking humanitarian relief from reaching those in need.35 If prosecuted, this would fall under Article 8(2)(b)(xxv) of the Rome Statute. This provision defines as a war crime the act of “Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions.”36 Similar to the discussion in the previous paragraph, the reports on Israel’s siege on the Gaza Strip must be investigated to determine whether Israel distinguished civilians from military personnel and objects. Tom Dannenbaum has pointed out that despite the presence of Hamas fighters in Gaza who lack civilian protection as a whole, “the population of Gaza is a civilian population.”37 He further states the following:

Civilians do not lose their protected civilian status by declining to leave their homes or their homeland, because such a declination does not amount to participating directly in hostilities […] As such, any operation targeted at the population of Gaza as a whole is an operation targeted at a civilian population, regardless of whether warnings are provided.38

Thus, a siege on the entire population of Gaza would be a siege on protected civilians, regardless of the presence of Hamas fighters and personnel in the area. A further investigation would have to definitively prove that a true and complete siege on food, water, electricity, and food has occurred in order to conclude that a war crime has occurred under Article 8(2)(b)(xxv) of the Rome Statute.

Finally, Israel has been accused of wrongfully displacing many Gaza Civilians. If prosecuted, this would fall under Article 8(2)(a)(vii) of the Rome Statute. Article 8(2)(a)(vii) lists “unlawful deportation or transfer or unlawful confinement” as a war crime. Under Article 49 of the Fourth Geneva Convention, displacement of civilians is only permitted if it is done to protect the security of civilians or if such displacement is required because of imperative military reasons.39 Even then, displaced civilians should be allowed to return as soon as possible.40 Late October reports indicated that Israel’s military warned Gaza residents to move south in Gaza for their own safety. These warnings also included a message that should residents not move south, they risked being identified as “accomplices in a terrorist organization.”41 More recently, in the middle of November, civilians were warned to evacuate certain areas in south Gaza for their safety.42 Such warnings were issued by dropping leaflets into these areas specifying these warning, and by phone alerts released by the Israeli military.43 The United Nations Relief Works Agency for Palestine Refugees in the Near East stated that as of November 18, 2023, 1.7 million people had been displaced along the Gaza Strip.44 The sheer size of this number raises concerns and merits investigation to ensure that it was necessary for the Israeli military to displace these civilians as the conflict endures. Also, Israeli forces must show good faith efforts to return individuals as soon as possible, if practicable. As it stands now, it does not appear that Israeli forces have committed this war crime, despite the large number of Palestinian civilians that have been displaced; however, a further investigation may be warranted should new evidence or circumstances arise.

IV. Conclusion

Since Hamas’ surprise attack on Israel on October 7, 2023, numerous people—including politicians, diplomats, journalists, human rights groups, protestors, and others—have asserted accusations of various crimes committed, or being committed, as a result of this conflict in the Middle East. This comment has examined the crimes of genocide, crimes against humanity, and war crimes as specified in Articles 6, 7, and 8 of the Rome Statute in an effort to analyze such assertions against both sides of the conflict. Especially regarding the attack carried out by Hamas leaders, officials, and militants on October 7, 2023, it appears that Hamas has perpetrated these violations of the Rome Statute. Regarding Israel’s military response, there is less presently available evidence, and thus, it is less certain whether any violations to the Rome Statute have been committed. In many instances, more research is necessary to reach a definitive conclusion regarding potential genocide, war crimes, or crimes against humanity violations of the Rome Statute committed during the current conflict in the Middle East.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Jason Burke, A Deadly Cascade: How Secret Hamas Attack Orders Were Passed Down at Last Minute, The Guardian, Nov. 7, 2023, available online. ↩

  2. 2.

    Id. ↩

  3. 3.

    Israel Revises Down Toll From October 7 Attack to Around 1,200, Al Jazeera, Nov. 10, 2023, [hereinafter Israel Revises Down Toll], available online. ↩

  4. 4.

    Hamas Had Not Planned to Attack Music Festival, Israeli Report Says, Al Jazeera, Nov. 18, 2023, available online. ↩

  5. 5.

    Burke, supra note 1. ↩

  6. 6.

    Id. ↩

  7. 7.

    Rome Statute, Art. 6. ↩

  8. 8.

    Burke, supra note 1. ↩

  9. 9.

    The Covenant of the Islamic Resistance Movement (Aug. 18, 1988), available online (trans.). ↩

  10. 10.

    Nicole Narea & Sigal Samuel, How to Think through Allegations of Genocide in Gaza, Vox, Nov. 13, 2023, available online. ↩

  11. 11.

    Rome Statute, supra note 7, at Art. 7. ↩

  12. 12.

    Id. ↩

  13. 13.

    Burke, supra note 1. ↩

  14. 14.

    Id. ↩

  15. 15.

    Jake Tapper & Kirsten Appleton, Israel Investigates Sexual Violence Committed by Hamas as Part of October 7 Horror, CNN, Nov. 19, 2023, available online. ↩

  16. 16.

    Id. ↩

  17. 17.

    Rome Statute, supra note 7, at Art. 8. ↩

  18. 18.

    Id. ↩

  19. 19.

    Burke, supra note 1. ↩

  20. 20.

    Rome Statute, supra note 7, at Art. 8. ↩

  21. 21.

    Israel Revises Down Toll, supra note 3. ↩

  22. 22.

    Rome Statute, supra note 7, at Art. 8. ↩

  23. 23.

    Id. ↩

  24. 24.

    Peter Beaumont, What Is a Human Shield and How Has Hamas Been Accused of Using Them?, The Guardian, Oct. 30, 2023, available online. ↩

  25. 25.

    Id. ↩

  26. 26.

    Jason Willick, We Can’t Ignore the Truth that Hamas Uses Human Shields, Wash. Post, Nov. 14, 2023, available online. ↩

  27. 27.

    Id. ↩

  28. 28.

    Id. ↩

  29. 29.

    U.N. Charter, Art. 51 ↩

  30. 30.

    Clive Baldwin, HRW, How Does International Humanitarian Law Apply in Israel and Gaza? (Oct. 7, 2023), available online. ↩

  31. 31.

    Id. ↩

  32. 32.

    Rome Statute, supra note 7, at Art. 8. ↩

  33. 33.

    Len Rubenstein, The Rules of War and Human Rights in the Israel–Hamas War, JHSPH (updated Oct. 27, 2023), available online. ↩

  34. 34.

    Christian Edwards, Have War Crimes been Committed in Israel and Gaza and What Laws Govern the Conflict?, CNN, Nov. 16, 2023, available online. ↩

  35. 35.

    Id. ↩

  36. 36.

    Rome Statute, supra note 7, at Art. 8. ↩

  37. 37.

    Tom Dannenbaum, The Seige of Gaza and the Starvation War Crime, Just Security (Oct. 11, 2023), available online. ↩

  38. 38.

    Id. ↩

  39. 39.

    Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287 (adopted Aug. 12, 1949, entered into force Oct. 12, 1950), available online. ↩

  40. 40.

    Id. ↩

  41. 41.

    Nidil Al-Mughrabi, New Israeli Warning to Gaza Residents as Aid Trickles In, Reuters, Oct. 22, 2023, available online. ↩

  42. 42.

    Israel “Not Successful” in Minimizing Gaza Civilian Casualties: Netanyahu, Al Jazeera, Nov. 17, 2023, available online. ↩

  43. 43.

    Id. ↩

  44. 44.

    Situation in the Gaza Strip and the West Bank, Including East Jerusalem, Report #33, UNRWA (Nov. 19, 2023), available online. ↩

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