Three years on, Gaza war leaves legal and forensic questions unanswered

More than 70,000 Palestinians have died, while the remains of many others are still missing beneath Gaza’s ruins. Three years after Hamas’s October 7, 2023 attack on Israel, the search for bodies and the search for evidence are taking place in the same unstable landscape.

Families need recovered remains to establish deaths, hold funerals and settle inheritance or marriage records. Investigators need access to collapsed buildings, blast sites, medical records and witness accounts before further clearance destroys the scene. Geneva-based institutions and UN officials have pressed for rubble removal that protects both public safety and the integrity of possible war-crimes evidence.

The work remains severely constrained. Israel has barred international journalists from entering Gaza and denied access to UN and other international investigative bodies. Accounts gathered by Swissinfo correspondents therefore rely on survivors and neighbours, whose testimony cannot always be independently verified.

Hamada Abu Hasira’s family illustrates the human cost. After an explosion destroyed his apartment building in Deir Al-Hawa in March 2024, rescuers recovered his father and brother Ahmed. His younger brother Momen remains missing. “I called my brother Ahmed,” Abu Hasira said. “He answered me at first, but then his voice went quiet.”

The ICC’s cases have moved further against Israeli leaders than against the senior Hamas figures initially named by its prosecutor. In May 2024, prosecutor Karim Khan requested arrest warrants for Yahya Sinwar, Mohammed Deif and Ismail Haniyeh, alleging war crimes and crimes against humanity linked to the October 7 attack and hostage-taking.

All three were killed by the Israeli army in 2024. The ICC does not try dead suspects, so the requests were withdrawn. The court could investigate other alleged planners or commanders if evidence identifies them and they remain alive.

In November 2024, the court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant. The allegations include using starvation as a method of warfare, intentionally directing attacks against civilians, murder, persecution and other inhumane acts. The warrants are allegations, not convictions.

The legal principle is straightforward but difficult to apply during an active conflict. Benjamin Fiorini, a criminal-law scholar at the University of Paris 8, said capturing suspects and putting them on trial is preferable to killing them. Israeli military operations have eliminated many Hamas leaders and fighters who might otherwise have faced proceedings. Israel has rejected the ICC’s jurisdiction and criticised the warrants.

The October 7 attack killed nearly 1,200 people and led to the abduction of 251 hostages. Hamas attacked Israeli military posts, villages and the Nova music festival. Around two-thirds of those killed were civilians, according to the Swissinfo report.

The ICC prosecutor’s allegations include murder, extermination, torture, rape and other forms of sexual violence. The court’s work has been complicated by the deaths of the three senior Hamas figures named in the original warrant request. Israel is expected to prosecute between 200 and 300 suspects accused of participating in the attacks before military courts.

Those proceedings will determine how much evidence reaches public scrutiny. Investigators must establish individual responsibility, distinguish commanders from direct perpetrators and examine whether suspects received orders, acted independently or committed crimes during captivity and combat. The passage of time weakens testimony, disperses digital records and increases the risk that crime scenes will be altered.

The legal record also remains incomplete because Hamas has not provided unrestricted access to all places where hostages were held, and independent investigators have faced major security and access barriers. Families of victims and former hostages have demanded accountability, while legal experts warn that public pressure cannot replace evidence that meets courtroom standards.