The Israel Law Center believes there are firm-enough legal grounds to prosecute Hamas leader Khaled Mashaal for war crimes at the International Criminal Court.

Shurat Hadin (The Israel Law Center), an NGO that combats terrorism through the use of international law, otherwise known as Lawfare, announced on Wednesday that it has formally requested that the International Criminal Court (ICC) prosecutor open an investigation into war crimes committed by Hamas leader Khaled Mashaal during Operation Protective Edge.

Shurat Hadin asserts that Mashaal had 38 Gazan citizens charged with the crime of collaborating with Israel and they were summarily executed in the streets with no trial.

Execution without a fair trial constitutes a war crime.

Shurat Hadin states that Mashaal is “criminally liable for Hamas’ war crime of execution without due process” because he “formulated, directs and approves the executions and oversees Hamas’ governance of Gaza.”

The NGO bases its assertion on Mashaal’s own reported statements that he has had absolute power over Hamas for at least the past four years.

The request for Mashaal’s prosecution points to his Jordanian citizenship. Jordan, unlike the Palestinian Authority (PA), has been a member of the ICC since 2002 and recognizes the court’s jurisdiction over its citizens.

Anti-War Protestors Executed

The complaint states that on August 22, 2014, Hamas “executed 18 so-called ‘collaborators’ who had been convicted of no crime,” and that seven of the executions were done in public.

“Journalists observed Hamas executing 11 more in an abandoned Gaza City police station,” the NGO adds.

Moreover, the complaint says that on July 28 Hamas summarily executed 20 Gazan civilians for engaging in anti-war protests against Hamas’ rule in Gaza.

In addition, the Law Center says that those executed by Hamas “were civilians who were taking no active part in the hostilities,” which is legal code for the fact that they did not fall into an exceptional category of civilians whose role in hostilities can change their status to combatant or military target.

The NGO anticipates objections to its request, such as the claim that Hamas and Mashaal do not “effectively control” Gaza or that they are part of a national unity government with the PA and cannot be held responsible for atrocities committed there. Shurat Hadin will counter these claims by stating that the unity government is non-existent on the ground and that Hamas effectively controls the prisons and is responsible for law enforcement in Gaza; therefore, according to the NGO, Mashaal is responsible for all circumstances related to the executions.

Results Significant for Israel

Shurat Hadin head Nitsana Darshan-Leitner told Tazpit News Agency that if the case against Mashaal succeeds in going to court, the results would be significant for Israel. The Hamas leader would be arrested and put on trial, and as the attorney pointed out, “the punishment for war crimes is imprisonment for life. It’s a life sentence without parole.”

She also noted that a successful trial would undermine the legitimacy of Hamas, which would be “recognized as committing war crimes against its own people.”

No Way Out for Court

Asked about the prospects of the case going to trial, Darshan-Leitner said that she intends to “put public pressure on the court to deal with this issue.” She said that the court has an incentive to take the case in order to avoid appearing hypocritical, since the chief ICC prosecutor had acknowledged that the court was willing to deal with allegations against Hamas.

“Quite frankly,” she said, “I don’t see a way out for the court from dealing with this case. For the first time they have the jurisdiction to deal with Hamas war crimes in Gaza.”

Author: Aryeh Savir
Staff Writer, United with Israel