Hamas publicly executed three Palestinians at dawn on Tuesday by firing squad and hanging who it said had been convicted and sentenced to death.
The move was not only condemned by human rights groups, but also led to a not so thinly veiled threat by the Palestinian Authority’s attorney-general to file war crimes complaints against Hamas before the International Criminal Court.
The ICC prosecution told the Jerusalem Post that “given that the Office’s preliminary examination with respect to Palestine is on-going, we do not discuss specific issues or react to every development in the situation before our analysis has been concluded and a final decision taken by the Prosecutor.”
Still ICC Chief Prosecutor Fatou Bensouda has commented in the past on violent upticks during the Third Intifada.
After meeting with Abbas in The Hague on October 30, she issued a statement essentially threatening war crimes for the ongoing violence. She “stressed the need for calm and restraint from all sides, and an end to the violence…innocent people have been injured and killed on both sides…the situation may further degenerate into a large-scale commission of crimes that may fall within the jurisdiction of the ICC.”
Clarifying why Bensouda issued a statement in that case, but not specifically against Hamas’ executions on Tuesday, the ICC prosecution said, “preventatives statements issued by the Prosecutor are an attempt to deter Rome Statute crimes and to encourage genuine national judicial proceedings.”
“Whether preventative statements are called for is a case by case assessment following a thorough analysis of the facts and circumstances within the Statute’s legal framework,” it added.
The executions are likely to widen the divide between Hamas and Fatah after numerous failed attempts at unifying the administration of the West Bank and Gaza.
The three were found guilty of murder in separate cases and sentenced to death after a trial and all appeals were exhausted, Hamas noted, but it provided no details about the evidence or fairness of the trial procedures.
Two were executed by firing squad and the third, a policeman, was hanged, security sources said.
Curiously, the Jerusalem Post has learned that the photographs distributed of the executions may actually reflect executions from earlier years and not those that occurred Tuesday.
"To achieve public deterrence and block crime, the relevant authorities implemented at dawn on Tuesday execution rulings against three convicted of horrifying murders," the general prosecutor's office in Gaza said in a statement.
The policeman put to death was employed by the PA, the Fatah-led administration based in the West Bank, which lost control of Gaza to Hamas in 2007.
The PA called the executions illegal, but then went a step further.
"Carrying out the executions represents a flagrant violation of the Palestinian basic law," Ahmed Brak, the attorney general based in Ramallah, told Reuters.
He said those who participated in the executions were complicit in murder and would be subject to law at the "local and international level."
This last statement was a barely veiled threat to file war crimes complaints against Hamas before the ICC, a threat that the PA normally wields against Israel.
The threat, if it was carried out, could complicate the PA’s ongoing war crimes complaints against Israel as it could compromise the PA’s claim that it and Hamas are part of one state.
There is ample precedent for states referring war crimes against one of its citizens for killing other citizens to the ICC, but essentially only after a successful coup or crushing a rival army and only by states already considered independent.
In that case, regardless of the merits, the state can claim it is the sole representative of the country to the ICC and has the authority to refer the complaints.
In the case of the PA, Israel has persistently opposed a January 2015 decision by the ICC prosecution to recognize the State of Palestine as having the rights of an independent state to refer complaints to it.
One Israeli argument has been that the PA does not control Gaza. Rather, Hamas does, leaving it ineligible to refer complaints on behalf of a State of Palestine, or certainly from Gaza.
Referring complaints against Hamas for killing a PA policeman in Gaza might confirm Israeli arguments that the PA is not in control there, though the ICC prosecution could also still analyze the issue differently.
The EU and the UN had strongly opposed the announced decision to carry out the executions.
Under Palestinian law, PA President Mahmoud Abbas has to agree to the use of the death penalty.
Because of splits between Hamas and Abbas's Fatah party, the Islamists did not receive approval from the president for the sentence.
Human rights groups last week demanded that Hamas hold off on the executions, but the Gaza-based attorney general said the sentences could be carried out.
The Palestinian Center for Human Rights said enforcing the death sentence without the Palestinian president's ratification constituted extra-judicial execution. International human rights groups condemned the decision.
Sari Bashi of Huma Rights Watch stated, “Today’s executions of three men in Gaza are deeply troubling. No one should be put to death, certainly not as part of a legal system in which torture and coercion are common. Gaza’s leaders should do more to address the socio-economic problems that have exacerbated crime, rather than pursue a veneer of control by killing people.”
Since 2007, more than 40 people have been executed in Gaza, including 23 suspected collaborators during the 2014 war, said HRW.
In recent weeks there have been several murders in Gaza, leading to pressure on Hamas to crack down on perpetrators.
Reuters contributed to this report.