Criminal Charges Against Ismail Haniyeh in The Hague

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 On January 16, 2015, the Office of the Prosecutor to the International Criminal Court began a preliminary examination into the “situation in Palestine” in order to determine whether a full investigation should be opened for crimes committed within the Palestinian territories. On March 6 2017, we, the Jerusalem Institute of Justice filed a communication with the Office of the Prosecutor concerning Hamas’s actions during the 2014 Gaza war. We argue that a full investigation should be pursued, and a case should eventually be lodged against Ismail Haniyeh for his role in the commission of war crimes during the 2014 conflict with Israel.

Ismail Haniyeh is the longtime Hamas leader in Gaza and was in power during the 2014 conflict. He has played a pivotal role in crafting Hamas’s extremist ideology and their consistent violation of the Gazan civilian population’s human rights. Along with failing to prevent Hamas militants from committing war crimes during the 2014 war, he actively encouraged and funded their unlawful acts.

There were two prominent war crimes committed by Hamas militants during the war in Gaza. First, they consistently put civilians in grave danger by using them for military purposes such as “human shields.” Hams would fire rockets and mortars from densely populated areas, encourage (and sometimes force) civilians to remain in potential military targets, and store weaponry in schools, hospitals, mosques, and other civilian structures. Second, the rockets Hamas used during the war are prohibited under international law. These rockets are exceedingly difficult to control and therefore cannot accurately fire at lawful military targets.  Especially because Hamas oftentimes fired from civilian areas, using these unpredictable machinery placed the population in great danger.

Haniyeh played a significant role in these crimes as the head of Hamas’s interconnected structure. He personally, and his government more generally, urged Gazan civilians to remain in the vicinity of their homes despite Israeli warnings. The government, along with its al-Qassam military wing, also established a curfew that would ensure civilians remained in their homes, with some militant groups forcibly confining Gazans when they tried to disobey the curfew. The funding for the military wing, which was responsible for the indiscriminate firing of over 4,000 rockets and mortars, also came directly from foreign aid given to Hamas’s political and social wings. Despite knowing of these acts being commonly committed within its territory, Haniyeh’s political wing did nothing to prevent them being carried out. Not surprisingly, the Hamas run-and-created Gazan courts have also done nothing to punish those who played a direct role in committing these crimes.
These crimes had devastating consequences. Over 2,100 Gazans were killed during the conflict, with these crimes playing a direct and significant role in causing the high number of fatalities. The strain these crimes put on civilians by placing them in the path of danger and cutting off all potential avenues to safety cannot be overstated. Moreover, the indifference with which Hamas sacrificed Gazans for military protection and an advantageous narrative is the precise manner of crime the International Criminal Court was established to combat.
For these reasons, we filed a communication urging the Prosecutor to launch a full investigation into Haniyeh and Hamas. The Court was created to bring to justice the individuals responsible for the worst sorts of crimes, and Haniyeh is an individual who was particularly responsible for a prime example of these crimes being broadly committed.