Because of the jurisdictional complications of the Palestinian situation, past actions, such as crimes committed by either side during Operation Cast Lead and the most recent violence in Gaza, most likely would not be prosecuted. But Israel may indeed find itself the focus of scrutiny for possible future crimes.
Yet the ICC is not the Nuremberg Tribunal, which convicted Germans but failed to consider Allied crimes. As much as some world leaders might prefer otherwise, ICC jurisdiction is not limited to one side in a conflict. When Uganda referred its own conflict to the ICC in 2004, its motivation was no doubt prosecution of leaders of the rebel Lord’s Resistance Army, but once the court took jurisdiction, the prosecutor was also able to investigate possible crimes by government forces. In other words, Hamas cannot expect a free pass in the future for indiscriminate shelling of Israeli civilians or use of Palestinian non-combatants as human shields.
In fact, ICC status may give the advantage to Israel on future prosecutions, while putting Hamas at a likely disadvantage. Because the ICC is considered a court of last resort that defers to national courts, it will not take on cases that states have made good-faith efforts to investigate or prosecute. Israel has already conducted investigations and undertaken some disciplinary actions regarding its forces’ behavior in Gaza; fear of ICC involvement might even encourage Israel to do more. Hamas, by contrast, has made no such efforts to deal with war crime allegations.