Regardless of how the Gaza conflict is resolved – through the ceasefire or some version of President Donald Trump’s more radical suggestions – a fundamental question has yet to be answered.
Will the remaining Hamas leaders and those Hamas supporters who participated in the murderous outrage on October 7, 2023, get away with their monstrous crimes, or will they be brought to justice?
On February 6, Trump signed an executive order imposing sanctions on the International Criminal Court (ICC) and its leaders. The order states that the ICC “has engaged in illegitimate and baseless actions targeting America and our close ally Israel,” in particular by issuing arrest warrants against Benjamin Netanyahu and former minister of defense Yoav Gallant.
Justifiable though Trump is in punishing the ICC for acting with dubious legality, it would have been equally valid for him to reprimand the court for actions that it has not taken.
In particular, the ICC has no viable plan to bring to justice the Hamas leaders who conceived the mega-atrocity in Israel, or the terrorist organization’s supporters who slaughtered 1,200 civilians and seized 251 people as hostages on October 7, 2023.
The nearest to any acknowledgment that such a step is necessary was the ridiculous issue by the ICC on November 21, 2024, of an international arrest warrant against Hamas leader Mohammed Deif, whose death was presumed when the warrant was issued, and subsequently confirmed. The court was apparently unable to unearth any living Hamas figure with responsibility for the pogrom and its consequences.
It may be that the court has no jurisdiction over what took place on Israeli soil. But in respect to planning and launching an armed incursion into Israel, and bringing back hostages to Gaza (considered by the court to be part of the non-existent State of Palestine), they certainly do.
The ICC has taken no steps to bring Hamas leaders or personnel to account. Meanwhile, free from any threat of judicial action, Hamas has continued to function as the de facto governing body in Gaza, using Israeli hostages, seized in clear violation of international law, as bargaining chips to release hundreds of Palestinian prisoners from incarceration in Israel.
IT IS NO secret who leads Hamas now. Following the death of Yahya Sinwar in October 2024, Hamas has been headed by a temporary five-member council composed of Khaled Mashaal, Khalil al-Hayya, Zaher Jabarin, and Muhammad Ismail Darwish, plus an unnamed – if not unknown – senior member.
Mashaal, who previously led Hamas from 1996 to 2017, is currently overseeing the organization’s international activities. He is believed to be still based in Qatar, despite reports that he had been expelled.
Within Gaza, Yahya Sinwar’s younger brother Mohammed has assumed a significant leadership role and has been actively involved in rebuilding Hamas’s military capabilities.
These leaders are guilty of war crimes, as are the bloodthirsty Hamas operatives who actually carried out the October 7 pogrom. War crimes under the 1949 Geneva Conventions include the murder and torture of civilians, and taking hostages. Crimes the ICC can prosecute are set out in the treaty that established the court in 1998 (the Rome Statute of the ICC). They include taking hostages, targeting civilians, and inhumane treatment.
The Rome Statute also lays down quite clearly the court’s purpose. The ICC was established to prosecute individuals (not states) for genocide, war crimes, crimes against humanity, and crimes of aggression. In addition, it was charged with ensuring that serious crimes do not go unpunished.
There is a near-universal consensus that on October 7, 2023, the Hamas terrorist organization carried out long-planned war crimes, including the murder of civilians and taking hostages. It is not unreasonable to ask how the ICC proposes to exercise its remit to ensure that the serious crimes committed by Hamas on that day do not go unpunished.
They have the names of the surviving leaders and the names of the nine UNRWA staff dismissed for having personally participated in the massacre of civilians and taking and incarcerating hostages.
There is no doubt that Hamas leaders consider themselves, their organization, and its operatives above international law, and feel no obligation to adhere to the rules of decency and humanity embedded in it and accepted by the civilized world.
They are wrong. There is a positive obligation placed on the ICC to “ensure that serious crimes do not go unpunished.” The requirement does not exclude members of terrorist-designated organizations like Hamas.
Legal options to bring Hamas leaders to justice
THERE ARE legal avenues open to the court to bring Hamas leaders and personnel to justice. For example, the UN Security Council (UNSC) could refer named Hamas personnel to the ICC, as it has done in past cases like Sudan and Libya.
Such a move could be initiated by the US but, of course, might be vetoed by other permanent members. But would it be? Would permanent UNSC members, like Russia or China, wish to be seen supporting Hamas? This is a step the US might consider.
Another route might be a referral to the court by any ICC member state urging an investigation specifically into Hamas, with a view to eventual prosecution. Since Palestine is recognized as a member of the ICC, the court has jurisdiction over crimes committed in its territory. Bringing captives into Gaza, depriving them of their liberty, and holding them hostage for extended periods seems an obvious crime of international proportions.
France, Germany, Greece, and the Netherlands – to name four of the 120 states that are members of the ICC – could refer the case of Hamas to the court. Perhaps one of them, or several acting jointly, or some other state concerned with genuine international justice, might consider doing so.
ICC prosecutor Karim Khan, instead of seeking some bizarre equivalence between terrorism and a democratic state’s reaction to it, could conduct an investigation into Hamas’s potential war crimes, issue arrest warrants, and initiate prosecution. While Israel is not an ICC member, it could provide evidence and intelligence to support ICC prosecutions.
If no action is initiated, Hamas leaders, and its supporters who carried out monstrous crimes on October 7, will go scot-free. It may be that the well-established anti-Israel and antisemitic element in the UN and its organs might prove too strong to recommend action to bring Hamas criminals to justice via the ICC. Even so, international legal proceedings against Hamas remain possible.
Some countries, like Belgium, Germany, France, and the Netherlands, allow their courts to prosecute individuals for war crimes and crimes against humanity even if they were committed abroad. Such prosecutions depend on the individuals concerned traveling to these countries and being apprehended there. Israel undoubtedly holds a list of known and suspected persons involved in the October 7 pogrom. That list should be made available publicly as soon as possible.
Terrorists captured by Israel could be prosecuted for war crimes, under Israeli law. As for Hamas leaders, if any were to be tracked down by Israel, they would doubtless receive the form of summary justice already meted out to a number of their partners in crime.
The writer is the Middle East correspondent for Eurasia Review. His latest book is Trump and the Holy Land: 2016-2020. Follow him at www.a-mid-east-journal.blogspot.com