How could war affect ICC’s view of Israel and Hamas? - analysis

Following the October 7 massacre, some 1,400 Israelis are dead and, according to the Hamas-run Health Ministry in the Gaza Strip, about 5,000 Palestinians have also been killed. When the war ends, there will surely be more.

By the end of the war, there could easily be another 500-1,000 Israeli soldiers killed from the Gaza invasion, and far larger numbers of dead Palestinians.

This war will transform the International Criminal Court’s handling and perspective of the Israeli-Palestinian conflict.

But will the additional deaths harm Israel's or Hamas’s cases more before the ICC?

First, some critical background.

Until this war, many top Israeli legal officials predicted that the ICC would “only” go after Israel for alleged war crimes regarding the settlement enterprise, not regarding the IDF.

While there were multiple reasons for this, the main one was that Israel has its own mechanisms for probing and prosecuting its soldiers accused of war crimes.

The ICC cannot go after a country or individuals from a country that already does its own due diligence on alleged war crimes.

The last major war between Israel and Gaza was in 2014.

Sure, there was a large 11-day conflict in May 2021 and several other “rounds” – and many Palestinians were killed during the Gaza border riots of 2018 – but 2014 was the last time there was a plethora of documented cases of the IDF causing mass Palestinian casualties multiple times.

The ICC did not even decide to proceed with a criminal probe against Israel and Hamas until almost seven years later in March 2021.

Evidence, especially relating to victims during the fog of war, as opposed to existing houses in the West Bank, gets stale and harder to reconstruct.

The slow speed at which the ICC moved forward seemed to forecast not going after the IDF, even under former chief prosecutor Fatou Bensouda.

This view only increased when the current ICC Chief Prosecutor Karim Khan took over, and mostly ignored the Israeli-Palestinian conflict in public during his first two years in office.

But all of this could be flipped now.

There will be dozens or more of brand new and fresh testimonies of Palestinians against the IDF.

The number of Palestinian dead already dwarfs the two thousand killed in 2014.

As the conflict extends, there will be a rising tide of demands by the human rights community and many Arab countries for culpability for so many Palestinian civilian deaths.

That means that the IDF may suddenly once again be in the ICC’s crosshairs.

But that is only one trend.

International support

A different conflicting trend, which may be more significant, is the US, and even the EU, supporting Israel’s right to self-defense against Hamas in the most full-throated way in decades.

Put simply, Hamas’s barbaric massacre of civilians, the elderly, women, and children – all of it on video and social media – disgusted US President Joe Biden and most European leaders so much that they flipped into backing Israel on an unprecedented level.

This will impact Khan and the ICC.

The EU countries pay most of its budget.

Bensouda ignored political considerations not only on a local case-by-case level, but also in a grand strategy about which cases to spend more time on.

Khan has shown that while he is a professional lawyer, he takes heed of the political winds regarding where key ICC member nations think his time should be spent.

This was one reason he has stayed away from the Israeli-Palestinian conflict until now.

Will he really go after Israel more strongly at a time when the US and EU have Jerusalem’s back more than ever before?

There is of course a third scenario.

When The Jerusalem Post interviewed Bensouda in The Hague in 2016, she seemed very open to going after both Israel and Hamas simultaneously.

This would be problematic from Israel’s perspective, but Khan could present it to the EU (the US has influence but is not a party to the ICC) as showing that he is acting in a “balanced” way to all sides.

If Khan were to do this now, it would probably not fly because of how far the EU has swung onto Israel’s side following Hamas’s massive massacre of civilians.

But that could change in the coming months.

If the final scorecard shows 5, 10, or 20 times more dead Palestinian civilians versus Israeli ones, the EU, or enough of it, may back Khan taking a “balancing” approach, going after both sides.

The case against Israel would be fraught by the Jewish state having evidence that it seeks to avoid civilian casualties and has sent several IDF soldiers to jail for violations against Palestinians.

The case against Hamas would be much easier because of the blatant targeting of civilians and videos.

But Khan could leave those issues to the ICC itself to resolve at trial.

As the IDF plans its ground invasion, avoiding Palestinian civilian deaths is not just a priority for being human and ethical, which it is, but also to avoid an ICC blowout afterward – or at least to thwart any later attempts by the court to get convictions against IDF troops.