Victims and survivors of Hamas’ atrocities deserve justice. Victims and survivors of Israel’s atrocities deserve justice.

They deserve more than just rhetoric or pleas to stop the violence. They deserve accountability for the litany of well-documented crimes already committed.

These statements should not be controversial. But for some states and even some fair-weather international law and human rights advocates, any suggestion that alleged war crimes and crimes against humanity committed by Israel deserve independent and impartial investigation appears to be a bridge too far. 

Double standards must be resisted, no matter who or what claims them. International crimes do not warrant investigation because of where they perpetrated or who committed them. They warrant investigation because they were committed, because victims and survivors deserve accountability, and because siding with justice over impunity for mass atrocities is always – always – the right thing to do.

This is not about supporting one side or the other. Victims on both sides of the current conflict between Israel and Hamas want the ICC to investigate. Israeli families of the victims taken hostage by Hamas have requested an investigation by the Court over allegations that Hamas has committed genocide. Lawyers representing families in Gaza have also filed a request at the ICC asking it to investigate alleged genocidal acts by Israeli forces. On behalf of Palestinian groups and individuals, a widely respected human rights organization has launched a lawsuit against President Joe Biden for failing to act to prevent alleged genocide in Gaza.

Pressure on the ICC is growing. On 17 November, five states – South Africa, Bangladesh, Bolivia, Comoros, and Djibouti – officially referred the situation in Palestine to the ICC. It should be noted that the ICC Prosecutor already has jurisdiction in Palestine and opened an investigation into the situation there in 2021. As a result, the Prosecutor can investigate any alleged international crimes committed on Palestinian territory, including the West Bank and Gaza, and by any Palestinian factions, including Hamas, in Israel. Still, the referral of these five states indicates an expanding interest in supporting the Court’s work in the situation in Palestine, something that had not been nearly as apparent in recent years.

Some formerly reluctant Western states are also, if belatedly, siding with accountability over impunity. Liechtenstein’s support has been steadfast. In October, Spain floated the idea of supporting the ICC in its investigation into Palestine. Switzerland has reiterated its support for the Court’s probe in Palestine.

Belgium has since taken matters a step further. In November. Brussels announced that it would give the ICC an additional €6 million in funding to support its investigation into atrocities in Gaza. Belgian Minister for Development Cooperation stated: “there has to be independent research on what is happening in Gaza right now. There are atrocities… by Hamas in Gaza & by Israeli Defence Forces. It’s important that the ICC Prosecutor get his job done.”

Despite these important moves, there remains an ever-present need to push back against double-standards. 

South Africa’s leadership role in referring the situation in Palestine to the ICC is welcome. But there were worrying signs, just a few months ago, that it might host Russian President Vladimir Putin, who is wanted by the ICC on charges of war crimes. South Africa ultimately decided against Putin’s visit. But in 2015, it hosted Sudan’s Omar al-Bashir, the one-time-President of Sudan who remains wanted by the ICC on charges of, among other things, genocide. 

Hopefully, South Africa’s firm position on the ICC’s investigation in Palestine reflects its renewed and resolute support for the Court in all situations and cases. And if South Africa wants to play a greater role in supporting the ICC’s investigation, it could second its own experts or call for an increase in the ICC’s yearly budget in order to provide the resources needed for the Court to investigate properly.

In some ways, Belgium’s €6 million donation to the ICC undermines double standards because numerous Western countries did the same to support the Court’s work in Ukraine. But voluntary donations to support specific investigations come with risks. Again, all situations of mass atrocities under the ICCs jurisdiction deserve independent and impartial investigation by the Court. The ICC Prosecutor’s Office and the Court itself must be adequately and consistently resourced in order to deliver on its promise of accountability. ICC Prosecutor Karim Khan has regularly implored: all member-states “to provide us with the tools we need in order to allow us to effectively fulfil our mandate, across situations.”

Of course, the ICC Prosecutor should not escape scrutiny for his own double standards. Soon after he came into office in 2021, Khan announced that he was “de-prioritizing” his investigation into alleged war crimes committed by U.S. forces in Afghanistan. The reaction among human rights and justice advocates was swift: the decision reeked of double standards. Advocates must also be wary of the Prosecutor using the ICC’s resource constraints or vague notions of the viability of cases to justify inaction or double standards in the face of obvious mass atrocities.

With respect to the situation in Palestine, Khan recently concluded a trip to Israel and the West Bank, but was prohibited by Israeli authorities from visiting Gaza or for conducting any investigative work. The Prosecutor again noted that the Court has jurisdiction over Palestine and issued stern warnings to Hamas and Israel to abide by international law. In stating that “all actors must comply with international humanitarian law. If you do not do so, do not complain when my Office is required to act,” Khan appeared focused on deterring future atrocities. But he must also use his office – and not merely his words – to address the multitude of atrocities already committed and which he can investigate, back to 2015. Khan has spoken repeatedly about the importance of law mattering in people’s lives. Him saying so will not be enough.

Double standards in international criminal justice can be combated with a commitment to the consistent application of international criminal law regardless of where or by who atrocities are perpetrated, matched with sustainably resourced investigations.

Prosecutor Khan recently stated: “There’s a dawning realization… that a short-term approach to international justice, doing it as an à la carte menu… is leading us to this precarious position around the world. How do we prevent that? By applying the law more consistently, with less selectivity.” He is absolutely right. If the world is to move towards the development of an effective, fair, and consistent system of international criminal justice, double standards must be called out and resisted, no matter who pushes them.