There is no blank cheque in the Israel-Hamas conflict. The ICC is working to ensure justice is on the frontlines
- Karim Khan is chief prosecutor at the international criminal court
Fri 10 Nov 2023
We are currently experiencing a moment of profound human suffering globally. A pandemic of inhumanity has taken hold, from Darfur to Ukraine, from the plight of women and girls in Afghanistan to the seemingly forgotten voices of Rohingya refugees in Myanmar, and now the intolerable tragedy that is deepening in Israel and the State of Palestine and threatening to spread wider. These human rights emergencies are interconnected. At their heart they are driven by a common crisis: a failure to give value to the lives of all people.
Amid this landscape, we must reject desensitisation. We cannot allow ourselves to be anaesthetised to this level of anguish. We must always remember that those we see pulled from the rubble, those awaiting news of family members abducted or killed, are the same as us. We should approach their plight with the same sense of urgency, empathy and compassion that we would if they were our own children, parents, friends or loved ones.
It is in times like these, when the vulnerable feel that they may have been forgotten, that we need the law more than ever. Not the law in abstract terms, not the law as theory, but the law capable of providing tangible protection to those who need it most. People need to see that the law and human rights have a real impact on their lives. It should be tangible to those in Gaza, the West Bank and Israel, as it should for those in Kyiv, Khartoum and Cox’s Bazar. It is something they should be able to cling on to and something that should shelter them from the worst elements of inhumanity.
Last week I was at the Rafah crossing, at the border of Gaza and Egypt, to deliver this message: that international humanitarian law was established for moments such as these. To ensure that, amid conflict, amid rage, there remains a baseline of human conduct, of humanity, over which no individual may trespass. As the UN secretary general, António Guterres, said: “Even war has rules.” This is the law of the international criminal court (ICC).
I have followed with horror the accounts that emerged from Israel on 7 October as the lives of so many innocent civilians in Israel were torn apart. We cannot live in a world where executions, burnings, rapes and killings are normalised, or even celebrated. Children and men and women and elderly people cannot be ripped from their homes and taken as hostages. We cannot accept a world in which the love within a family, the deepest bonds between a parent and a child, are twisted for evil through torture and murder. They are acts that are repugnant to any person. They are the most un-Islamic of acts and cannot be committed in the name of a religion whose very meaning is peace. These acts represent some of the most serious violations of international humanitarian law.
Hostage-taking represents a grave breach of the Geneva conventions. It is a war crime under the Rome statute of the international criminal court. And I call for the immediate release of all hostages taken from Israel and for their safe return to their families. When these types of acts take place, they cannot go uninvestigated and they cannot go unpunished. My office has jurisdiction over crimes committed by the nationals of all state parties. That jurisdiction continues over any Rome statute crimes allegedly committed by Palestinian nationals or the nationals of any state parties on Israeli territory.
Those responsible for organising and implementing the atrocities of 7 October should know that my office is actively investigating these crimes. While Israel is not one of the 123 countries that are state parties to the Rome statute, I stand ready to work with their national authorities, and with the families of victims in Israel, to complement domestic efforts and ensure that justice is delivered for those affected by these crimes.
Following my announcement last December that I would seek to visit both Israel and the State of Palestine to further our work in relation to this situation, I have been engaging intensively with all relevant actors to be able to access these jurisdictions. In recent weeks, I have further accelerated these efforts.
In Gaza, I wanted to meet those who are suffering such tremendous pain, to hear their experiences first hand and, crucially, to promise them, to give a commitment to them, that their birthright is justice. Palestinians deserve justice as much as any other human. As I said in a speech delivered in Cairo in October, there are no children of a lesser God.
While I wasn’t able to enter Gaza, at the Rafah crossing I stood at its door and highlighted that beyond those gates there are innocent children, boys and girls who should be at school, learning and studying and hoping to build a better future, hoping to cure the mistakes of this generation of leaders and our own shortcomings.
Instead, they are enduring unimaginable suffering. Palestinians who want no part in this conflict are caught up in hostilities. Too many are dying and too many are being injured. It is intolerable to see the bodies of young children being dragged from the ruins, baked in dust, being rushed to medical facilities that may not have the means to treat them. It is not tenable for these civilians to remain trapped under the weight of a war they cannot escape.
We cannot accept that the brutal nature of war is some kind of fait accompli. And we cannot and must not lose sight of the fact that there are laws that govern the conduct of these hostilities. There is no blank cheque, even in war. The laws that we have, the Rome statute that I operate under, require that innocent lives are particularly protected. These protections afforded by the law apply equally regardless of race, religion, nationality or gender.
My office has ongoing jurisdiction in relation to any alleged crimes committed on the territory of the State of Palestine by any party. This includes jurisdiction over current events in Gaza and in the West Bank.
Israel has clear obligations in relation to its war with Hamas: not just moral obligations, but legal obligations that it has to comply with the laws of armed conflict. These laws are clearly outlined in the Rome statute and the Geneva conventions.
Israel has a professional and well-trained military. They have military advocate generals and a system that is intended to ensure their compliance with international humanitarian law. They have lawyers advising on targeting decisions, and they will be under no misapprehension as to their obligations, or that they must be able to account for their actions.
They will need to demonstrate that any attack that harms innocent civilians or protected objects is conducted in accordance with the laws and customs of armed conflict. They will need to demonstrate the proper application of the principles of distinction, precaution and proportionality.
For those responsible for targeting and firing missiles, I wish to be clear on three points in particular. One: in relation to every dwelling house, in relation to any school, any hospital, any church, any mosque – those places are protected, unless the protective status has been lost because they are being used for military purposes. Two: if there is a doubt that a civilian object has lost its protective status, the attacker must assume that it is protected. Three: the burden of demonstrating that this protective status is lost rests with those who fire the gun, the missile, or the rocket in question.
In this context, I would also underline that the indiscriminate firing of rockets from Gaza into Israel may represent breaches of international humanitarian law subject to the jurisdiction of the ICC.
On humanitarian access, the position is critical, and the law is clear. The United Nations, the World Health Organization and the International Committee for the Red Cross and Red Crescent have been explicit in outlining the dire humanitarian situation in Gaza. As I have repeatedly emphasised, civilians must immediately receive basic food, water and desperately needed medical supplies. We hear reports of operations taking place without basic medicines, as if we’re in the middle ages.
At the Rafah crossing, I saw trucks full of goods, full of humanitarian assistance, stuck where nobody needs them. These supplies must be allowed in to the civilians of Gaza without delay. Impeding relief supplies as provided by the Geneva conventions may constitute a war crime. I want to underline, in the clearest possible terms, that there must be discernible efforts by Israel, without further delay, to allow civilians to receive basic food, water, medicine, anaesthetics, morphine.
I also underline to Hamas and anybody who has control in Gaza that, when such aid reaches Gaza, it is imperative that the assistance gets to the civilian population, and is not misused or diverted away from them.
I also wish to underline that there can be no justification for attacks on humanitarian workers, in particular those of the International Committee of the Red Cross and Red Crescent. There is a specific prohibition under the Rome statute regarding any such attacks.
I am also extremely concerned with the significant increase in reported incidents of attacks by Israeli settlers against Palestinian civilians in the West Bank. We are continuing to investigate these attacks. All such reported attacks must cease immediately.
My office has recently launched OTP Link, a secure platform to receive submissions in relation to the situation in the State of Palestine and all other situations addressed by the court. I encourage those with relevant information to contact my office. We are engaging with all relevant actors, whether national authorities, civil society, survivor groups or international partners, to advance our investigations. We will scrutinise all information to ensure that the law is seen to play its role in providing protection to the most vulnerable.
I call upon state parties to the ICC and non-state parties to help collectively vindicate the Geneva conventions, to help collectively vindicate principles of customary international law and also principles of the Rome statute, to share evidence regarding any allegations or any crimes so that we can properly investigate them and prosecute them as appropriate.
On hearing the accounts and watching the horrific images coming out of Israel and Palestine we cannot fail to be heartbroken and moved. There is palpable anger and understandable frustration. It is the obligation of my office not to act on emotion but on objective, verifiable evidence. We are conducting a criminal investigation with focus and urgency. I wish to put all parties on the clearest notice of their duty to comply with international humanitarian law. When the evidence we are collecting reaches the threshold of realistic prospect of conviction, I will not hesitate to act pursuant to my mandate.
We should never think things cannot get worse. As we see epicentres of violence expand around the world, whether in Ukraine or in the Sahel, whether in Darfur, the plight of the Rohingya, or in Afghanistan, this is a moment when we must cling to a law that represents the heritage of all countries and peoples. It’s our collective duty to do so.
This article draws on the speech made by ICC prosecutor Karim Khan KC in Cairo on Sunday 29 October, following his visit to the Rafah crossing. This article has also been published today by Asharq al-Awsat and the New Straits Times
- Karim Khan is chief prosecutor at the international criminal court (ICC)
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