Many observers of the ongoing conflict in Gaza have placed their hopes for justice in the hands of international courts, particularly the International Court of Justice (ICJ) and the International Criminal Court (ICC). However, nearly two years into the war, these institutions have struggled to prevent atrocities or hold perpetrators accountable. Despite extensive documentation of war crimes committed by the Israeli military, its actions continue largely unchecked.
Focusing solely on the ICJ and ICC can lead to a misunderstanding of their roles and limitations. Brian Finucane from the International Crisis Group emphasizes that the ICC often dominates discussions about international justice, overshadowing significant domestic efforts. He suggests that Palestinians may find more effective avenues for justice through national courts, where states can pursue investigations and prosecutions based on their obligations under international law.
The historical context of international trials, such as those at Nuremberg, shapes public expectations. Jake Romm, a human rights lawyer, notes that Gaza exemplifies the type of situation these courts were designed to address. Since the escalation of violence on October 7, 2023, there have been some developments. South Africa initiated a case against Israel for alleged violations of the U.N. Genocide Convention, prompting the ICJ to issue provisional measures aimed at preventing further genocidal acts and ensuring humanitarian aid flows into Gaza. Additionally, the ICC has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, citing war crimes related to starvation and other inhumane acts.
Despite these actions, the path to justice remains fraught with challenges. The ICJ is unlikely to reach a decision on the genocide case until at least 2027, and the ICC faces significant obstacles, including political pressure and resource constraints. Hungary’s recent decision to allow Netanyahu safe passage illustrates the difficulties in enforcing accountability. The ICC is also grappling with internal crises, including allegations against its chief prosecutor and ongoing political threats from various nations.
International law lacks a robust enforcement mechanism, relying on states to uphold their responsibilities. Chantal Meloni, a legal expert, points out that the Rome Statute clearly delineates the limitations of the ICC, emphasizing the need for states to take action against international crimes. National courts, in contrast, can pursue a broader range of suspects and are less encumbered by the political dynamics that often hinder international tribunals.
The push for domestic prosecutions is not a new phenomenon. Countries like Spain and Belgium have established universal jurisdiction laws, allowing them to prosecute serious international crimes regardless of where they were committed. This legal framework is being leveraged to investigate alleged war crimes by Israeli forces in Gaza. For instance, Belgian authorities recently detained two Israeli soldiers based on a legal complaint from the Hind Rajab Foundation, marking a significant moment in the pursuit of accountability.
The Hind Rajab Foundation has taken proactive steps by filing complaints with the ICC against over 1,000 members of the Israeli military and seeking action from national authorities in at least 23 countries. Although no prosecutions have yet materialized, the foundation’s efforts reflect a growing momentum toward holding individuals accountable for their actions in Gaza. In July, a coalition of 30 countries pledged to support universal jurisdiction mandates to ensure justice for victims in the Occupied Palestinian Territory.
However, political realities in various countries can obstruct investigations. The Hind Rajab Foundation’s recent request to the U.S. Justice Department to prosecute an Israeli soldier under federal law highlights the complexities involved. The U.S. has historically been reluctant to apply its war crimes statute in cases involving Israeli forces, raising concerns about selective justice.
The absence of a statute of limitations for serious international crimes means that accountability can be pursued indefinitely. Recent cases in Germany demonstrate that justice can be delayed but not denied, as courts continue to hold individuals accountable for crimes committed decades ago. Finucane underscores that the pursuit of justice for atrocities is often a long-term endeavor, with accountability processes unfolding over many years.
For those advocating for justice in Gaza, the message is clear: the fight for accountability must continue on multiple fronts, including domestic jurisdictions. As the landscape of international law evolves, the potential for justice remains, albeit with the understanding that it may take time and sustained effort to achieve meaningful outcomes.