With the International Criminal Court hampered by sanctions and a verdict in the International Court of Justice genocide case against Israel not expected until 2027 or later, activists are increasingly pursuing prosecutions of individual Israeli soldiers in national courts around the world.
Campaigners have filed legal complaints accusing Israeli soldiers of war crimes in Gaza in a growing number of countries including the United Kingdom, Belgium, Brazil, Chile, Cyprus, France, the Netherlands, Portugal, Peru and South Africa.
Under the concept of universal jurisdiction, national courts can prosecute war crimes that were committed somewhere else, if suspects are either dual nationals of their country or visit it. This applies to the 153 signatory states of the 1951 Genocide Convention, including Ireland.
“If they are informed that some of their citizens participate in the crime of genocide in Gaza, they have the obligation to prosecute – that’s in their national legislation,” says Alexis Deswaef, a human rights lawyer and vice-president of the International Federation for Human Rights.
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On foot of one complaint Belgian authorities detained and questioned two Israeli soldiers who had been attending the Tomorrowland electronic music festival in July and referred their case to the International Criminal Court.
[ Israeli soldiers flee Netherlands following accusations of Gaza war crimesOpens in new window ]
The two were reported after the purple and white flag of the Givati Brigade, part of the Israel Defense Forces, was flown by people in the festival crowd.
The European Jewish Association said it was “deeply concerned” about the actions of Belgian authorities in questioning them. “These soldiers were carrying out their lawful duties in defence of their country, duties comparable to those of any soldier serving in a democratic nation,” the group said in a statement.
Many soldiers serving in the Israel Defense Forces (IDF) have dual nationality, with hundreds holding European passports as well as those of Israel, according to rights groups. In many countries, being a national means they can even be prosecuted in absentia.
Last month several NGOs filed a legal complaint against two French-Israeli soldiers accused of summarily executing civilians in a sniper unit.
Testimonies by Palestinians collected by the Gaza-based Al Mezan Center for Human Rights and shared with The Irish Times described children being shot in the head and neck close to Nasser and Al Quds hospitals between November 2023 and March 2024.
The International Federation for Human Rights said they had made the legal complaint to a specialised part of the French justice system dedicated to the investigation of war crimes, after an investigation by Palestinian journalist Younis Tirawi accused Israel’s so-called Refaim or “Ghost” sniper unit of deliberately targeting unarmed civilians. The unit largely comprises dual nationals, according to the rights group.
Earlier this year the IDF was reported to have placed media restrictions on reporters to protect those who travel abroad from the risk of legal action.
It came after the Israeli embassy helped an army reservist to flee his holiday in Brazil after a court ordered an investigation into war crimes allegations.
The Brazil case was pursued by the Hind Rajab Foundation, a Belgian-based nonprofit that has filed police reports against Israeli soldiers in numerous countries.
It is named after a five-year-old girl whose death sparked international outrage after the Palestinian Red Crescent Society released audio of her last moments as she sought help on the phone while trapped in a car surrounded by her relatives, who had been killed. She was later found dead, along with two paramedics who had been sent to rescue her.
In May, on what would have been her seventh birthday, the group named the commander it said had led the unit responsible for her death, and called on the ICC to issue an arrest warrant.
Many of the legal complaints lodged internationally are based on open-source evidence gathered by activists, particularly social-media posts published by soldiers themselves.
In Portugal, activists reported a sniper who had posted “4 rounds, 0 misses” on social media. The investigation in Brazil came after activists reported social media posts showing the reservist blowing up buildings in Gaza. In December a legal complaint was made against a French-Israeli soldier after a video on social media showed blindfolded Palestinian detainees being insulted in French.
Such videos could make prosecutions overseas more straightforward, according to Deswaef, as usually it is more difficult for national authorities to investigate crimes that take place in a war zone far away.
“Normally, perpetrators of international crimes deny it. They say: no, I was not there. No, I didn’t have the weapon in my hands. No, I didn’t participate,” says Deswaef. “Here they are proudly posting videos confessing and admitting and even claiming participation in the genocide or in the war crimes. That’s new.”
There are precedents in the prosecution in French courts of people involved in the 1994 genocide in Rwanda, as well as in recent war crimes prosecutions in the Netherlands, Belgium and Germany for people accused of war crimes that took place in the Syrian civil war.
Asked about the detention of the two soldiers in Belgium and if they had issued any advice to soldiers about social media posts or travelling abroad, an IDF spokesperson said “we have no comment”.
So far activists have not accused an Irish citizen of war crimes in Gaza. In response to questions in the Dáil, Taoiseach Micheál Martin has acknowledged that Irish nationals can be prosecuted under Irish criminal law for war crimes that take place outside the jurisdiction, but that there are no plans to warn any Irish citizens who might be serving or volunteering in the IDF of a risk of legal consequences.
However, multinationals based in Ireland could be accused of complicity if they provide services for Israeli forces, says Deswaef. Some tech companies have provided services to the IDF.
“If a company has its seat in Ireland, that puts a special responsibility on the Irish jurisdiction to investigate,” the lawyer says. “A country cannot take the seat of companies only for the advantages, and then when there is a criminal behaviour and participation in crimes of international law, look away.”
