Since the October 7 attacks, every legal expert I asked shared one conclusion: Hamas’s attacks on civilians that day included killings, torture, and child kidnapping. believe, are all war crimes. And because many hostages are still being held, that crime continues.
Tom Dannenbaum, a Tufts University professor, told me just days after the attack that “there is no doubt” that the Hamas attack involved multiple war crimes. “Those weren’t close calls,” he said.
Since then, evidence has continued to mount. Last month, the prosecutor of the International Criminal Court announced that he was seeking an arrest warrant for three Hamas leaders on charges of war crimes and crimes against humanity in connection with the October 7 attack on Israel, as well as the attack on Israel. Hostage talking follow. He also sought arrest warrants for two Israeli officials. All of the subjects in the warrant request deny the charges against them.
Last week, one UN Commission concluded that there is credible evidence that members of Hamas and other Palestinian armed groups committed war crimes on October 7, including the killing of civilians, torture, and capture hostage. The committee also found evidence of Israeli war crimes, including the use of civilian starvation as a weapon of war.
There are a lot of misconceptions about Hamas’s obligations under international law, so I thought I’d use today’s column to explain those rules, how they apply to Hamas, and the surprising motivations. that they can create. Hamas declined to comment for this article but in past statements The group claims its fighters have a “religious and moral commitment” to avoid harming civilians.
Quick note: I will not be writing about Israel’s alleged war crimes in this article. However, I have written about some of the issues before, including usage hunger as a weapon of war and legal problems caused by the Israeli military attack on World Central Kitchen relief convoy.
Hamas is not a state. Is it still subject to international law?
Hamas is one armed Muslim group was founded in 1987 and has been listed as a terrorist organization by the United States and the European Union. They won legislative elections in Gaza in 2006 and have been in power there since 2007 without holding further elections. But it is not a state government: Even the countries that have recognized the Palestinian state do not recognize Hamas as their government.
There are two main things you need to know to understand Hamas’s obligations under international law. First, although it is not a state government, it is still bound by the laws of war.
“The applicability of the law is triggered by the existence of an armed conflict,” said Janina Dill, co-director of the Oxford Institute for Ethics, Law and Armed Conflict. Once a conflict begins, every organized armed group involved is bound by international humanitarian law.
The second point is that those laws are universal, not reciprocal. A breach of the conflict by one party does not change the other party’s obligations. On the contrary, there is no military rationale so justifiable as to permit its proponents to violate international humanitarian law to achieve that goal.
“The law of armed conflict is very clear, which is that all parties have the same obligations regardless of the common cause of the conflict,” said Marko Milanovic, a professor of public international law at the University of Reading in the UK. them, and regardless of the legality or alleged illegality of that entity.”
Additionally, all individuals are subject to international criminal law regardless of whether they are affiliated with a government or non-state armed group.
That equal application may seem excessive to those who believe that one side in the conflict has a just cause. After the ICC prosecutor announced that he had seek warrants As for the leaders of Hamas and Israel, both Israel and Hamas issued angry statements about being placed on equal footing with their opponents in the war.
But the core purpose of those laws is to protect civilians, who enjoy the same protection regardless of whether state troops or non-state armed groups threaten them. Therefore, no amount of Palestinians detained by Israel would make it legal for Hamas to hold Israeli hostages, just as no amount of Israelis killed on October 7 would make it legal for Israel to kill civilians. often indiscriminate or disproportionate Palestine is legal.
If there were no police to enforce international law, would it still matter?
When I write about these issues, I often get messages from people who want to know why they should take international law seriously, since there is no international equivalent to the FBI to arrest criminals. committing misconduct or enforcing court decisions.
I can understand that point of view: Given the widespread consensus that Hamas has committed war crimes, the international legal system’s inability to immediately address those acts could leave the organization appears to be an ineffective or even useless institution, especially when compared with domestic legal systems. When a murder occurs in a country with a well-functioning justice system, we hope the perpetrator will be brought to justice — although of course that often doesn’t happen — and we know who have the right to do that. The lack of enforcement in the international system can be frustrating.
But international law relies more on diplomacy and negotiation than top-down enforcement. If countries do not voluntarily carry out arrest warrants or comply with international court rulings, there will be no central authority to force them to comply.
That does not mean that international law is meaningless. At a basic level, conflict management rules can act as a deterrent, create standards of legitimacy, and can become a source of external and internal pressure on groups. armed.
Dill, who studies compliance with international law, has found that when troops are trained in the law, they often internalize those norms as a measure of their own professionalism. For example, she said, U.S. service members often told her that they considered themselves “experts” in fighting according to the law, which they believed distinguished them from their opponents, whom they described as terrorists and murderers.
And Tanisha Fazal, a political scientist at the University of Minnesota, was establish that armed groups attempting to establish new independent states often comply with international humanitarian law as a way to “signal their capacity and willingness to be good citizens of the international community to which they aspire.” want to join”.
When it comes to Hamas and the current conflict, it’s fair to say those incentives don’t seem to be working.
The Palestinian state is one of Hamas’s goals. But the Palestinian Authority, not Hamas, is seen as the Palestinian representative on the international stage, making it a crowded field for competition. Hamas, as a designated terrorist organization, may have little prospect of international acceptance.
The group also does not seem to believe that support from ordinary Palestinians depends on demonstrating compliance with international law. Its fighters filmed themselves carrying out the October 7 attacks and Hamas posted some of the documents publicly, suggesting it may have been prescient. achieve legally caused by violence.
But while many Palestinians took to the streets when the attacks took place on October 7 to celebrate what they saw as an affront to an occupier, Hamas’s popularity appears to have grown. proved to be temporary. Today, many in Gaza hold the group responsible for waging a war that has taken a catastrophic toll on civilians.
Will Hamas ever be held accountable?
ONE recent articles in The Wall Street Journal suggested that Yahya Sinwar, the leader of Hamas, had made what they called a “brutal calculation” that the deaths of civilians in Gaza would help the group by increasing pressure on Israel . The article cited correspondence from Sinwar, including one in which he allegedly described the civilian losses as “necessary sacrifices.”
The New York Times has not seen these messages or been able to independently confirm them. But what if Hamas deliberately endangers civilians by hiding fighters inside crowded refugee camps, schools or hospitals – like some evidence suggest — that would violate international law, prohibiting its use human shieldor the placement of military facilities in densely populated areas civilian areas.
That means, even if one side uses human shields, this does not absolve the other side of its obligations: Civilians still have the right to protection even if one side in the conflict has endangered they are violating the law.
Currently, the gap between clear evidence of war crimes committed by Hamas and the accountability of its leaders in a court of law can feel wide. But it may not always be like that.
ICC does Track record Prosecute members of non-state armed groups and arrest warrant does not expire. Even if the war ends, the potential criminal liability of Hamas leaders will not occur.
