Det kan bli vanskelig å stille Israel til ansvar for handlingene i Gaza for en internasjonal domstol. Den internasjonale straffedomstolen, ICC, har ikke jurisdiksjon over Gaza, og Israel har ikke sluttet seg til ICC.
A Palestinian rights group on Wednesday urged the International Criminal Court to investigate Israel, producing a 25-page petition alleging that Israel was using «terrorist weapons to conduct crimes against humanity».
The ICC prosecutor in the Hague responded by saying the court had no jurisdiction to investigate in Gaza. The ICC can investigate war crimes, crimes against humanity and genocide committed on the territory of, or by a national of, a state.
But Gaza is not a state. «In Gaza at present, the ICC lacks such jurisdiction,» the prosecutor said in a statement.
While Israel has not signed the Rome Statute that enshrined the ICC, it can still be investigated, but it would require the U.N. Security Council to call for such a move. Any such proposal would likely draw a veto from Israel’s ally, the United States.
«If you look at the ICC and the cases it has taken, whether it’s the Congo, or Uganda, or potentially Sudan, they are looking at mass genocide or actions against children that are unprovoked or grotesque,» said Jonathan Drimmer, an expert in war crimes issues at Steptoe & Johnson, a U.S. law firm.
«I think it’s unlikely that it has legs to go to the International Criminal Court… That’s not to excuse completely Israel’s conduct, but it is to say that you do have complicating factors in assessing possible prosecutions that don’t exist in other cases that the ICC has taken,» he told Reuters.
Experts do believe, however, that both Israel and Hamas may have cases to answer on issues of humanitarian law.
Anthony Dworkin, the executive director of the Crimes of War Project and an expert in international humanitarian law, said Israel’s broad approach to what it considered a target in the conflict might expose it to claims under the 1949 Geneva Conventions governing non-international conflict.
«Israel’s thinking, evidently, is that all members of Hamas, and any facilities used to enforce their physical or ideological control over Gaza, are fair game,» he wrote on his website, www.crimesofwar.org.
«Under the laws of war, such an approach is highly questionable.» Referring to the targets hit he added: «It is hard to see how all these targets could be justified according to the rules of international humanitarian law.»
At the same time, he said there was evidence Hamas’s rocket fire into Israel was in violation of international law, and that the group may have used «human shields» to carry out attacks.
«In general,» he wrote, «there appears to be a strong argument that both Israel and Hamas have violated international law in the conduct of hostilities in Gaza, by attacking people who are not themselves participating in hostilities.» (Editing by Alistair Lyon)