A Palestinian man from Gaza who lost his wife, children, a parent and several nieces and nephews in the war has filed a submission to the International Criminal Court demanding that 14 named Hamas leaders be investigated for war crimes and crimes against humanity committed against the Palestinian civilian population. The filing, made in December and only recently disclosed, is the first such case brought against the terror group by a Palestinian.

The 40-page submission, prepared by American attorneys Elliot Malin and Eli Rosenbaum and French attorney Sarah Scialom, lists Hamas figures including political bureau chairman Khaled Mashaal, Mahmoud al-Zahar, Khalil al-Hayya, Mousa Abu Marzook, Ghazi Hamad, Izzat al-Rishq, Fathi Hamad, Husam Badran, Basem Naim, Izz al-Din al-Haddad, Mohammed Odeh, Muhannad Rajab, Nizar Awadallah and Zaher Jabarin. Rosenbaum is a former senior war crimes prosecutor at the U.S. Department of Justice.

The submission catalogues what the attorneys describe as a pattern of crimes by Hamas against Palestinians in Gaza, including the use of civilians as human shields, attacks on civilians and civilian objects, the destruction and appropriation of property, the conscription of children, and sentencing or execution without due process. The filing argues that Hamas’s use of human shields was “principally responsible for the high death toll and extensive destruction experienced in Gaza.”

“The atrocity crimes perpetrated by Hamas against [redacted] family members, and against substantially all of the Palestinian civilian inhabitants of Gaza, constitute grave breaches of international criminal law,” the filing states. “Yet to this day, there has never been a disclosed OTP investigation or request for issuance of warrants for any of the Hamas leaders … complicit in war crimes and crimes against humanity that they committed against the civilian Gazan population.”

The court’s Office of the Prosecutor has not responded to the filing.

“We don’t stop seeking justice because the court does not want to respond,” Malin told JNS. “We will continue kicking on the door until they deliver justice for the victims.”

Scialom, in remarks reported earlier, framed the inaction in starker terms. “OTP’s continuing failure to pursue justice on behalf of Hamas’s deceased and displaced Palestinian victims in Gaza helps incentivize the repeated commission of such crimes as an effective geopolitical strategy,” she said.

The ICC issued arrest warrants for Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant on November 21, 2024, on charges of war crimes and crimes against humanity tied to the Gaza war. Both men deny the charges and have accused ICC chief prosecutor Karim Khan of bias and conflicts of interest.

The court had also issued a warrant for Mohammed Deif, the commander of Hamas’s armed wing, over the October 7, 2023, attacks, but rescinded it after Israel killed him. Warrant requests for Hamas leaders Yahya Sinwar and Ismail Haniyeh, both later killed by Israel, were withdrawn.

Khan himself has been on a leave of absence since last year amid allegations of misconduct involving a subordinate. The Office of the Prosecutor is being run by his deputies in his absence.

To date, the court has not charged a single Hamas leader with crimes committed against Palestinian civilians — a fact the lawyers behind the December filing argue undermines the ICC’s claim to impartial international justice.

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