By Shannon Bosch, Edith Cowan University
(The Conversation) – In late December 2008, then-Israeli Prime Minister Ehud Olmert authorised Operation Cast Lead in response to rocket attacks from Hamas-controlled territory in Gaza.
The three-week military assault killed around 1,400 Palestinians, including more than 300 children. Thousands of homes were destroyed, and hospitals, UN shelters, power stations, water facilities, food storage sites, schools and mosques were severely damaged. Medical rescue teams and humanitarian workers were obstructed.
A UN fact-finding mission documented indiscriminate attacks, the use of white phosphorus in populated areas, and what it deemed the collective punishment of the entire population of Gaza.
Human rights groups also compiled evidence supporting these findings.
In January 2009, the Palestinian Authority submitted a declaration encouraging the International Criminal Court (ICC) to investigate alleged war crimes and crimes against humanity in the operation.
At the time, however, Palestine held only “observer entity” status at the United Nations, and the court’s prosecutor concluded it was not a “state” capable of joining the Rome Statute (the treaty that established the court) or triggering an investigation. Israel has also never been a member of the ICC.
Consequently, the ICC has not investigated the incidents to determine if they meet the threshold of war crimes or crimes against humanity.
More than 15 years later, there is new attention on the operation. Earlier this month, the Hind Rajab Foundation, a Belgium-based nonprofit group, filed a request in Germany for prosecutors there to open an investigation into Olmert for his role in the operation.
What is universal jurisdiction?
War crimes and crimes against humanity are among the gravest offences recognised in international law. And they are not subject to statutes of limitation.
However, the ICC cannot shoulder the burden for prosecuting these cases alone. It was never intended to do so.
As such, domestic courts have become crucial mechanisms for prosecuting alleged war criminals – and more victims rights groups are using them in this way.
They are able to do this through the principle of “universal jurisdiction”. This means any state can prosecute perpetrators of alleged war crimes, crimes against humanity, torture and genocide committed anywhere in the world, regardless of the nationality of the perpetrator or victims.
Universal jurisdiction exists in international law to close the accountability gap when international courts or courts in individual states (like Israel) fail to act.
For example, German law gives German prosecutors jurisdiction over cases involving alleged war crimes, crimes against humanity and genocide. Courts there have already used these powers to arrest and prosecute alleged perpetrators from other conflict zones, including Syria, the Democratic Republic of Congo and Iraq.
More than 140 states have this same capacity to arrest, investigate and prosecute foreign nationals in cases like these. Prosecutions on the basis of universal jurisdiction have occurred in 19 countries.
This year alone, there are some 95 active cases involving universal jurisdiction in 16 countries, according to an organisation that tracks them. This is up from 36 cases in 2024.
And more than 25 countries (including the United States, Canada, the United Kingdom, France, Germany, Italy, Brazil and others) have received criminal complaints related to alleged war crimes specifically related to Israeli soldiers or leaders. These have come from global networks of lawyers, researchers and activists.
In some cases, the complaints are supported by geo-located evidence posted by the alleged perpetrators themselves on social media.
Soldiers could be targeted anywhere
This has made Israeli soldiers and leaders more vulnerable to possible arrest when travelling abroad related to their possible involvement in operations in Gaza.
An Israeli soldier, for example, was targeted with a court-ordered investigation in Brazil in January before fleeing the country.
International Criminal Court, The Hague, Digital Imagining.
As a result, the Israeli news outlet Ynet has issued a travel guide warning Israeli soldiers about legal risks travelling abroad, with advice from an ICC defence lawyer.
The Israel Defence Forces have also introduced new measures to conceal soldiers’ identities and required the media to blur soldiers’ faces and use their initials instead of given names.
While ICC investigations into potential war crimes remain vital to holding perpetrators to account in conflicts the world over, these universal jurisdiction cases show that another avenue exists for victims to try to achieve justice.
Some legal scholars suggest domestic courts can and should act in tandem with the ICC, with the UN court focusing on so-called “big fish” and domestic courts targeting individual soldiers involved in conflicts.
And this is what legal scholars say will help “shrink the impunity gap”, sending a clear message that serious international crimes will be investigated, no matter who the perpetrator is.
Shannon Bosch, Associate Professor (Law), Edith Cowan University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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