An Unexpected Path to Hold War Criminals Accountable

The Intercept

15 hours ago

Benjamin Netanyahu arrives at the Capitol to meet with U.S. lawmakers on July 9, 2025, in Washington, D.C. Photo: Samuel Corum/Sipa USA via AP Images
Tyler McBrien is the managing editor of Lawfare and a 2024-25 Law & Justice Journalism Project Fellow.
Many of those watching the horrors unfold in Gaza have hung their highest hopes and deepest frustrations on the world's apex courts: the International Court of Justice and the International Criminal Court. Nearly two years into the war, these judicial bodies have neither prevented atrocities from occurring nor punished perpetrators. Journalists and activists amassed ample evidence documenting war crimes committed by the Israeli military, and yet its soldiers continue to operate in Gaza with impunity.
It's a mistake to laser-focus on the ICJ, established by the United Nations Charter to settle disputes between states, and the ICC, which prosecutes individuals accused of genocide, war crimes, crimes against humanity, and the crime of aggression under the Rome Statute. Doing so misunderstands and overemphasizes their role. 'The ICC takes up way too much oxygen in discussions of international criminal justice and accountability,' the International Crisis Group's Brian Finucane told me. The myopia also misses important work happening in national courts. It's here at the domestic level where Palestinians have the best chance to see justice, as nation-states attempt to fulfill their international obligations through homegrown investigations and prosecutions.
In many ways, the hopes and frustrations lavished on the ICC and ICJ are understandable. 'When people think of international trials, they think of Nuremberg and the signal to the international community that these are the most serious crimes that are being perpetrated,' said Jake Romm, a human rights lawyer and U.S. representative for the Hind Rajab Foundation. Gaza is exactly the kind of grave situation for which these courts were founded, and they have not been completely dormant since October 7, 2023. In early 2024, after South Africa brought a case against Israel alleging that it violated the U.N. Genocide Convention, the ICJ issued several rounds of provisional measures ordering Israel to prevent genocidal acts, halt military action, and ensure the flow of humanitarian aid. In November that same year, the ICC put out arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant (along with three top Hamas commanders) for the war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution, and other inhumane acts.
But the wheels of justice in general turn slowly, and, for Palestinians, it can often feel like the wheels of international justice in particular seldom turn at all. The ICJ likely won't rule on the genocide case until the end of 2027 at the earliest. And while the prospects of seeing Netanyahu or Gallant in the dock at The Hague were always dim, they look even dimmer after Hungary, a state party to the Rome Statute, allowed Israel's wanted prime minister safe passage through Budapest, shirking its obligation to arrest him. The ICC also remains embroiled in crisis after its chief prosecutor took leave amid allegations of sexual misconduct, as perennial resource problems and political pressure continue to plague the court and the Trump administration targets the institution with sanctions and other threats. Even special international criminal tribunals, like the ad hoc structures created in the former Yugoslavia or Rwanda, are subject to a United Nations Security Council veto, an insurmountable hurdle for Palestinians.
These international courts have surely not met the moment, but they cannot fight for global justice alone, nor were they designed to. Without an independent enforcement mechanism, international law functions as a voluntary system, dependent on states — as both its subjects and principal agents — to carry it out. And, according to associate professor of criminal law at the University of Milan and senior legal adviser to the European Center for Constitutional and Human Rights Chantal Meloni, the Rome Statute set out 'a very clear logic that not every international crime committed everywhere in the world can be under the jurisdiction of the ICC, and states have to take their share of the responsibility to prevent and punish these crimes.'
National courts, on the other hand, often don't face the same resource constraints and can go after perpetrators up and down the chain of command. The pursuit of justice through domestic courts 'involves potentially hundreds, even thousands of potential suspects as opposed to the ICC, which is only ever going to be dealing with a handful of cases,' said Mark Lattimer, executive director at the Ceasefire Centre for Civilian Rights. While states also face their own political pressures, they do not have to perform the ICC's difficult dance of appeasing its many patrons. Lattimer added that domestic efforts can also 'act as a break on double standards' all too present in international courts, especially for countries with a strong, independent judiciary insulated from prevailing geopolitical power shifts and free to pursue the gravest breaches of international law irrespective of the perpetrator's nationality.
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Efforts to activate domestic jurisdiction for international crimes are not new. A growing body of case law has arisen out of extraterritorial prosecutions in the Syrian war, the Balkan wars, various African conflicts, and, of course, World War II. Countries such as Spain and Belgium already had universal jurisdiction laws, which empower national authorities of any country to investigate and prosecute serious international crimes even if they were committed in another country, in place even before the adoption of the Rome Statute in 1998.
Lawyers and activists are building on this historical precedent by pushing for domestic jurisdictions to investigate and prosecute allegations of atrocities by Israel's military in Gaza, the fruits of which have already led to tangible outcomes across several countries. Last month, Belgian authorities detained and questioned two Israeli soldiers on leave at a music festival in response to a legal complaint filed by the Hind Rajab Foundation and the Global Legal Action Network. The episode may have marked the first time national authorities detained Israeli soldiers on suspicion of crimes committed in Gaza, but these 'traveling soldiers,' some of them dual nationals, have faced other consequences. In January, the Israeli foreign minister helped Yuval Vagdani, as a vacationing soldier, escape from Brazil after learning that a federal judge there had opened a war crimes investigation stemming from another Hind Rajab Foundation legal filing. (Vagdani has denied the allegations in the filing.)
In addition to filing a complaint with the ICC against more than 1,000 members of Israel's military, the Hind Rajab Foundation has filed complaints and arrest requests with the national authorities of at least 23 countries. In response to these activities and others, the Israeli government issued advisories for soldiers traveling to certain jurisdictions with legal resources and other advice. 'They're spooked,' said Romm. 'National legal systems are coming online to possibly arrest and incarcerate these Israeli soldiers for what they're doing to the Palestinians for the first time in history.' Though no complaint has resulted in a prosecution yet, these cases will likely continue and may even pick up speed. In July, 30 countries convened by The Hague Group committed to supporting 'universal jurisdiction mandates, as and where applicable in our legal constitutional frameworks and judiciaries, to ensure justice for all victims and the prevention of future crimes in the Occupied Palestine Territory.'
Of course, the current political environment in several countries make any investigations of Israeli soldiers impossible, regardless of questions of jurisdiction and prosecutorial capacity. In April, the Hind Rajab Foundation filed an urgent request with the Justice Department to prosecute the Israeli soldier Yuval Shatel under U.S. federal law after learning he was spotted in Texas days prior. According to a press release from the foundation, the filing included a dossier of evidence in support of allegations that Shatel committed 'serious violations of international humanitarian law during Israel's military campaign in Gaza.' (Shatel and the Justice Department did not respond to requests for comment).
At the same time, the Hind Rajab Foundation is not naive. The chance of U.S. Attorney General Pam Bondi directing the Justice Department to investigate its allegations against Shatel seems slim at best, especially since the U.S. War Crimes Act, passed in 1996, laid dormant until December 2023, when the Justice Department indicted four Russians for alleged violations of the federal war crimes statute — the first (and only) prosecution in the law's 30-year history. The apparent unwillingness to apply the statute elsewhere drew criticism as Israel's military campaign in Gaza intensified. On October 21, 2024, Justice Department attorneys wrote a letter to Bondi's predecessor, Merrick Garland, 'calling out the 'glaring gap' between the department's approach to crimes committed by Russia and Hamas — versus the department's silence on potential crimes committed by Israeli forces and civilians.'
The Hind Rajab Foundation's request aims to close that gap. 'There is a discrepancy between what the letter of the law says and how the U.S. is acting,' said Romm. 'We filed this because we want them to prosecute, and because they can. They have jurisdiction, and the crimes are very clear.' The Shatel case is HRF's first U.S. prosecution request, but Romm says it won't be the last. 'All I can say is there will be more,' he told me. 'We're going to try to get everyone we possibly can.'
'Despite the fact that this carnage has gone on for almost two years now, it's still, by the standards of justice, in the early days.'
There is no statute of limitations for the gravest transgressions of international law. For perpetrators of war crimes, crimes against humanity, or genocide, the prosecutor's sword of Damocles will hang over them for a lifetime. In December, German courts cleared the way for a 100-year-old former Nazi to stand trial nearly 80 years after the end of WWII. 'Despite the fact that this carnage has gone on for almost two years now, it's still, by the standards of justice, in the early days,' said Finucane. 'When it comes to atrocity crime accountability, there are very long tails, and these things spool over the course of decades.'
For anyone demanding justice and accountability for Israel's crimes in Gaza, the message is clear: Let a thousand prosecutions bloom.