Submitted on September 13, 2018
We, the Jerusalem Institute of Justice, submit this communication to the Office of the Prosecutor of the International Criminal Court concerning Ismail Haniyeh’s war crimes through the recruitment, enlistment and use of children below the age of 15 to participate directly in hostilities in an armed conflict.
On January 16, 2015, the Prosecutor began a preliminary examination into the “situation in Palestine” to determine whether a full investigation should be opened for crimes committed within the Palestinian territories. In this communication, we contend that if any full investigation is to be pursued into crimes committed “Palestine” then a case should be lodged against Haniyeh.
Haniyeh is, and has been at all times material to this communication, a senior leader of Hamas. He has played a pivotal role in developing and enforcing Hamas’s extremist ideology and consistent human rights violations against, amongst others, the Gazan civilian population. Not only did Haniyeh fail to prevent war crimes against children committed by Hamas operatives, he has actively encouraged the recruitment of child soldiers to bolster the Hamas military and paramilitary forces.
In this communication we provide evidence that Haniyeh is guilty of the war crime of conscripting, enlisting or using children below the age of 15 to participate actively in hostilities. Though this known colloquially as using “child soldiers”, the crime also includes the use of children to support hostilities, including as “human shields”.
First as the de facto and subsequently the de jure leader of Hamas, Haniyeh wielded effective control over the relevant activities in the Gaza Strip. Hamas’ interconnected command structure is such that the political, social and military wings of the organisation are intertwined, and in reality under a common, highly-centralised leadership. Accordingly Haniyeh knew of and was in a position to prevent the enlistment/conscription/use of children as active participants in hostilities, but failed to do so. Secondly and even more egregiously, Haniyeh was an active proponent of the enlistment/conscription/use through his attendance of graduation ceremonies for military training camps aimed at recruiting children, and giving numerous speeches in which he advocated children joining the military struggle against Israel.
The case is grave enough to merit further investigation. Haniyeh’s crimes have had and will continue to have devastating consequences on the children of Gaza, their families as well as their society and region. Apart from mental and physical injuries or even deaths, these actions destroy the childhood of their victims, and perpetuate an endless cycle of conflict which benefits no one but the Hamas leadership. There is no prospect of local justice; the Hamas-dominated Gazan Courts have done nothing to punish those who play a direct role in committing these crimes against children.
Haniyeh’s crimes are not merely historical; they are ongoing and contribute to the radicalisation of each new generation of Palestinians – rendering peaceful coexistence with their neighbours increasingly difficult. The ICC therefore has the rare opportunity to take an important step not just in punishing perpetrators and deterring war crimes, but also in improving Gaza’s civil society and promoting peace. For all these reasons, we urge the Office of the Prosecutor to launch a full investigation into the actions of Haniyeh.