The Authority of the ICC to Institute Criminal Proceedings against Israeli and Hamas Leaders: The Gaza Conflict

Abstract

The recent announcement by the Prosecutor of the International Criminal Court (ICC) to seek arrest warrants for some Hamas and Israeli leaders in connection with the ongoing conflict in Gaza has garnered mixed reactions from the International Community. On the 7th of October 2023, Hamas and other Palestinian armed groups launched “Operation al-Aqsa Flood” against Israel, killing hundreds of civilians, abducting about 245 hostages and subject-ing several others to cruel and inhumane treatment. Israel in response invoked its right to self-defense, declared war and launched “Operation Iron Swords” against Hamas militants in Gaza since the 8th October 2023. The ongoing war between Hamas and the Israeli Defense Forces (IDF) is argued to have result-ed to several breaches of International Humanitarian law. This paper examines the jurisdiction of the ICC over such international crimes using the Rome Statute and relevant rules regulating armed conflict enshrined in the 1949 Gen-va Conventions and its additional protocols as yardstick. Thus, the central question is whether the ICC Prosecutor has the right to institute criminal pro-ceedings against Israeli and Hamas leaders accused to have committed crimes proscribed under the Rome Statute? It argues that pursuant to articles 12(2)(a)(b), 13(c),15 (1)(3), and 58 of the Rome Statute, the Prosecutor is en-tirely within his jurisdiction in seeking arrest warrants against the persons suspected of committing war crimes and crimes against humanity prohibited by article 7 and 8 of the Rome Statute.