What is the status of investigations into Hamas and Israel?

Israel's Prime Minister Benjamin Netanyahu (L) and former Defence Minister Yoav Gallant (R) address a press conference in October 2023. Keystone

On October 7, 2023, Hamas’s terror attack on Israel triggered a devastating war in Gaza. Three years on, both Hamas and Israel are facing charges of war crimes and crimes against humanity before international courts. However, the proceedings are progressing slowly, and in some cases have been halted by the deaths of those accused.

On October 7, 2023, Hamas carried out the worst terrorist attacks ever suffered by Israel, killing nearly 1,200 people and triggering a spiral of violence in the Middle East. These attacks were immediately followed by a retaliatory war waged by Israel in the Gaza Strip. Since then, more than 70,000 Palestinians have died, according to figures from the Gaza Ministry of Health, which the UN considers reliable. The territory has been almost entirely razed to the ground.

These terrorist acts and the reprisals warrant their perpetrators – Hamas and Israel – being prosecuted under international law for war crimes and crimes against humanity. And that is without even considering the issue of internal investigations in Israel into what the government did or did not know prior to the attacks. Several legal proceedings are currently underway.

Hamas terror attack

On October 7, 2023 Hamas attacked military posts, Israeli villages and the Nova music festival. Some 1,200 people, two-thirds of whom were civilians, were killed, and 251 were taken hostage and taken to Gaza, where they endured months of captivity and abuse.

In May 2024, the prosecutor of the International Criminal Court (ICC) – a court that prosecutes individuals – requested arrest warrants for three Hamas leaders: Yahya Sinwar, Mohammed Deif and Ismail Haniyeh for war crimes and crimes against humanity, including murder, extermination, torture, rape and other forms of sexual violence.

However, these three Hamas leaders were killed by the Israeli army in 2024. The requests for arrest warrants are withdrawn. They will therefore never be tried before the ICC, as it does not try the dead, as explained by Benjamin Fiorini, senior lecturer in criminal law at the University of Paris 8 and secretary-general of JURDI, an association of legal professionals promoting respect for international law.

“On the other hand, if the International Criminal Court identifies other individuals who, for example, may have ordered the October 7 attacks, it could open new investigations, provided, of course, that they are still alive,” he emphasised during an interview on Swiss public radio RTS.

However, Israel has assassinated the leaders of Hamas, as well as thousands of fighters, who can never be brought to justice, with the exception of 200 to 300 suspects accused of participating in the attacks, who are to be tried before an Israeli military court. This strategy of killing enemies — widely endorsed by the Israeli public, the families of victims and former hostages — responds more to a thirst for revenge than to a demand for justice under international law.

Legally speaking, capturing and trying people is preferable to executing them, continues Fiorini. War must respect international law.

“Whilst there may be individuals who were lawfully targeted, there are also people who have been victims of this conflict and who should not have been,” he says.

In Gaza, of the 70,000 dead, the majority are civilians (women and children), revealing disproportionate attacks, he emphasises. This justifies prosecutions for war crimes and crimes against humanity by the ICC, and even for genocide – in this case by the International Court of Justice (ICJ), which prosecutes states rather than individuals.

Legal proceedings targeting Israeli leaders

There are legal proceedings targeting Israeli leaders since October 7, 2023. Firstly, there are the proceedings initiated by the ICC. In November 2024, it issued two arrest warrants against Israeli Prime Minister Benjamin Netanyahu and his former Defence Minister Yoav Gallant for war crimes (the use of starvation as a method of warfare and attacks intentionally directed against the civilian population) and for crimes against humanity (murder, persecution and other inhumane acts in the Gaza Strip).

Other Israeli officials could also face prosecution by the ICC, according to Fiorini. He cites as an example the Israeli President, Isaac Herzog, “who went so far as to say that he intended to break the backbone of the Gazan population, and that he considered the existence of innocent Gazans to be a myth. This betrays a desire to inflict collective punishment”.

The ICC could issue further arrest warrants, but US sanctions targeting the court risk slowing down its efforts. Investigations are nevertheless continuing in secret to avoid pressure, he says.

>> Several independent UN experts have referred to a genocide in Gaza. Our article explains who decides, and on what basis:

Proceedings against Israel before the International Court of Justice

In December 2023, the International Court of Justice (ICJ) was received a complaint lodged by South Africa against Israel for genocide in the Gaza Strip, supported by some 20 countries, including Iceland, the Netherlands, Ireland, Belgium and Spain.

The ICJ has recognised a plausible risk of genocide in Gaza and has asked Israel to implement provisional measures – three times in total over the past two years – explains Fiorini. But Israel has never complied with them. The proceedings are still ongoing, but are progressing slowly due to the complexity of the evidence and the sensitivity of the subject. Too slowly, given the situation in Gaza, Fiorini believes.

A trial could begin in 2028 before the ICJ. Until then, the Court’s 193 member states are obliged to do everything in their power to prevent genocide, for example by imposing trade sanctions against Israel or an arms embargo.

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Translated from French, sub-edited by Anand Chandrasekhar