Impunity continues for Israel’s war crimes in Gaza as Western powers stay silent

International Criminal Court (ICC) prosecutor Karim Khan has said his office has “active investigations” ongoing into “any crimes committed on the territory of Palestine and any crimes committed, whether it is by Israel and Palestine or whether it is acts committed on the territory of Palestine or from Palestine into Israel”.

This would include the October 7th invasion of southern Israel by Hamas fighters and alleged killing of 1,400 Israelis and foreigners and the transport of 230 captives into Gaza. He warned that taking hostages is against international law and urged the release of the hostages.

He claimed to be “very concerned also by the spike of the number of reported incidents of attack by settlers against Palestinian civilians” in the West Bank.

He stated the investigation into ongoing events in Gaza and the West bank is a continuation of the ICC’s existing case dealing with the 2014 Israel-Hamas conflict, Israeli settlement expansion and Israel’s violent response to protests at the Gaza border launched by Khan’s predecessor Fatou Bensouda.

Since the Palestinian Authority has signed the Rome statute creating the ICC, the court has jurisdiction in East Jerusalem, the West Bank and Gaza, conquered by Israel in 1967. Israel has not ratified the statute and has flatly refused to cooperate with the ICC investigations as well as probes conducted by other international organisations. Stressing the independence of the court, Khan urged Israel to cooperate and assist with the investigations.

Speaking in Cairo after a visit to Egypt’s Rafah crossing into Gaza, he warned that Israel’s prevention of access to humanitarian aid is a violation of the Geneva convention and could constitute a war crime.  He called on Israel to permit lorryloads of water, food and medical supplies into the blockaded and bombed coastal strip. He stated, ““I saw trucks full of goods, full of humanitarian assistance, stuck where nobody needs them, stuck in Egypt, stuck at Rafah.”  He added,

“These supplies must get to the civilians of Gaza without delay.”

Khan has taken his time to tackle both Palestinian and Israeli violations of international law. On October 10, Khan said his office is mandated to investigate crimes committed in the conflict. 

On October 13, Human Rights Watch [HRW] asked Khan “to issue urgently a public statement regarding the mandate of the International Criminal Court [ICC] as to the current hostilities between Palestinian armed groups and Israel, in addition to your office’s responses to the media.

We recognise that, as a matter of policy, the office of the prosecutor is no longer issuing what had been called ‘preventative statements.’ At the same time, I urge you to consider, across the court’s docket, when and how the ICC prosecutor’s public voice may hold unique value.”

HRW continued, “The stakes for civilians in the current hostilities are extremely high. While any statement you make would no doubt be made in general terms rather than specific to any particular incidents, it is clear that horrific violations of international humanitarian law that amount to war crimes have been carried out by different parties.” A strong statement could have “deterrent value”, HRW said.

“Accountability is a key element in ending impunity-fuelled repression and cycles of bloodshed around the world. Ensuring that the ICC’s critical role is recognised will send an important message not only to would-be perpetrators, but, importantly, also to victims and survivors.”

HRW pointed out that in “many places around the world, impunity for grave abuses committed [by Israel] in the Israeli-Palestinian conflict over many years is seen as proof positive that there are double standards at work with respect to international justice. In this context, we believe your Office has an important role to play” in correcting this situation.

Khan did not assert a high-profile role until October 13. Even then, he stated, “If there is evidence that Palestinians, whether they’re Hamas or Al Quds Brigades or the armed wing of Hamas or any other person or any other national of any other state party, has committed crimes. Yes, we have jurisdiction wherever they’re committed, including on the territory of Israel.”

While he regarded the situation of Palestinians in Gaza as “heartbreaking”, he did not at that time specify the violations of international law being committed by Israel in Gaza although it was clear then that Israel was committing the crime of “genocide” against the Palestinians. This is defined as the intention of a state “to destroy, in whole or in part, a national, ethnical, racial or religious group [by] deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part”.

Khan’s approach to Gaza contrasted sharply with his personal intervention in the Russian war in Ukraine only days after the conflict had erupted by issuing an arrest warrant for Russian President Vladimir Putin who is unlikely to be detained. Although Ukraine is a non-ICC member other non-member like the US supported the ICC’s probe into that war. 

Of course, the Western powers do not press the ICC to become involved in any potential war crimes or crimes against humanity perpetrated by Israel which has always enjoyed impunity no matter what it does. This has given the extreme-right government of Benjamin Netanyahu a greenlight to act as it pleases in Gaza whatever the cost to Palestinians who live there.