May 21, 2024


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How Israel-Hamas war crimes could be prosecuted

How Israel-Hamas war crimes could be prosecuted

You may have heard war crimes accusations over the last several days lodged against Hamas, Israel or both. That may have led you to wonder: What does the law actually prohibit and potentially punish?

Targeting civilians and taking hostages are among the relevant examples considering recent reports. Hamas, the Palestinian militant group in the Gaza Strip bordering Israel and Egypt, has killed Israeli civilians at a music festival and in their homes, taken hostages and threatened their execution.

When it comes to potential prosecution, international law applies to both Hamas and Israel. But the more complex issue is enforcement.

The Israeli military can respond, as it has and apparently will continue to do, but international law says it can’t do so indiscriminately. The distinction matters here especially because striking Hamas with precision is complicated by Gaza’s density — more than 2 million people are packed into about 140 square miles. So Palestinian civilians overlap with Hamas makes civilian deaths seemingly inevitable in light of Israel’s response, which has included airstrikes and could develop into a ground assault in Gaza. To be clear, Hamas is Palestinian — the Islamist group governs Gaza and has a small presence in some areas of the West Bank, the other Palestinian territory — but not all Palestinians are members of Hamas. Hamas won elections in Gaza in 2006, but elections haven’t been held since.

Israel has warned Palestinians in Gaza to evacuate targeted areas, though they aren’t free to leave Gaza itself due to the Israeli/Egyptian border blockade. Relatedly, Israel cutting off electricity, food, water and fuel to Gaza raises the prospect of what’s known as collective punishment, or punishing a group of people for others’ actions, which is also banned.

Starvation and sexual violence are some of the additional actions that can be considered war crimes by the International Criminal Court, which is based in the Netherlands.

When it comes to potential prosecution, international law applies to both Hamas and Israel. But the more complex issue is enforcement.

The ICC has jurisdiction over a member state party’s territory and nationals. Palestine has joined the court, so jurisdiction could cover crimes by both Hamas militants and Israelis in Gaza, as well as Hamas militant crimes in Israel. Neither the United States nor Israel recognizes a Palestinian state, and they are not members of the court. With U.S. support, Israel rejected ICC jurisdiction, in connection with an ongoing investigation into alleged war crimes, including in Gaza. The ICC prosecutor’s office said Tuesday that its mandate applies to the ongoing conflict as well.

The ICC doesn’t have its own police force or independent enforcement powers, so the effect of charges against noncooperative parties could be that it makes them more careful with international travel, including to ICC member states. In March, the court issued an arrest warrant for Russian President Vladimir Putin over alleged war crimes in Ukraine, and he is just now taking his first known trip abroad since then, to Kyrgyzstan, which, like Russia, isn’t an ICC member. And though the U.S. isn’t a member, its complicated relationship with the ICC over the years has included helping transfer ICC suspects to the court.

Even if Israel doesn’t seek or cooperate with any international investigation or prosecution of Hamas militants, it could still charge them in its own court system. But in what could still be the early stages of a prolonged and brutal war, how any of this plays out in any court might not be top of mind in that region at the moment.

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