The International Criminal Court of Justice , created in 2002 by the Rome Treaty, is the only body that realistically could be expected to prosecute Hamas for war crimes.

      For those of you who are not familiar with the court, it is not merely a figurehead but a well funded organization headed by professional prosecutors. Amazingly, the ICCCJ today decided to issue an arrest warrant for the president of Sudan for war crimes. That is an extraordinary step in international law that the Washington Post buried on page 11 today.


      Enforcement against a sitting head of state within the state is impossible. But what the arrest warrant does is isolate the guy in the state. If he travels to any foreign country he is subject to arrest but more likely would simply not be allowed to enter.


      Unfortunately neither Palestine, Israel, or the United States has ratified the treaty establishing this court. Nonetheless, the International Criminal Court of Justice does have ancillary jurisdiction where the UN Security Council refers a matter to it. This happened with the indictment of the Sudan president as the Sudan is a non-party.

         Consequently, the best I can tell, the UN Security Council would have to make the referral which is not going to happen in large part because many believe that Israeli government officials have committed war crimes and the US has committed crimes against humanity.
   
     Most notably many observers believe that the invasion of Gaza violated the “excessive response” provision of the Rome treaty:

(iv)     Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;


        Unfortunately the UN Petition quoted below is poorly drafted bc it ignores this provision and loses its persuasive power by misrepresenting “international law”:


According to International Law any source of fire on civilian targets is a legitimate target itself. If that source of fire was located among civilians it still remains a legitimate target; and if that vicinity invites fire in return, causing casualties among the local population, these casualties are the full and sole responsibility of the party placing them deliberately in harm's way.


      In fact, the law is that the civilian targets could be attacked only if the damages caused were not clearly excessive in relation to the military advantage. Just looking at the TV footage and the  modest militery gains reported, I struggle to see how Israel could make this showing,

      As to the US, of course, many believe the Bush administration committed crimes against humanity by torturing detainees believed to be terrorists:

e)     "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

       Given that we now have officials in the Obama administration flatly describing certain interrogation techniques used as torture, the US is hardly in a position to demand a war crimes prosecution against Hamas.