Since the attacks on October 7, every legal expert I’ve asked has concluded that Hamas’s attacks on civilians that day, including killings, torture and hostage-taking, were war crimes. Criminal activity continues as many hostages are still being held.
Tufts University professor Tom Dannenbaum told me days after the attack that there was “no doubt” that Hamas’s attacks involved multiple war crimes. “These are not close calls,” he said.
Since then, the evidence has continued to mount. Last month, the ICC prosecutor announced that he was seeking warrants for the arrest of three Hamas leaders on charges of war crimes and crimes against humanity related to the October 7 attack on Israel; Hostage-taking during an attack on Israel. He also sought arrest warrants for two Israeli officials. All subjects of the warrant requests deny the charges against them.
Last week, a United Nations committee concluded that there was credible evidence that members of Hamas and other Palestinian armed groups committed war crimes on October 7, including the killing of civilians, torture and hostage-taking. The committee also found evidence of Israeli war crimes, including using civilian starvation as a weapon of war.
There are many misunderstandings about Hamas’s obligations under international law, so I thought I would devote today’s column to explaining the rules, how they apply to Hamas, and the surprising incentives they can create. Hamas declined to comment for this article, but in past statements the group has claimed 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 these issues before, including the use of hunger as a weapon of war and the legal issues raised by the Israeli military’s attack on the World Central Kitchen aid convoy.
Hamas is not a state. Do we still have to abide by international law?
Hamas is an Islamic armed organization founded in 1987 and has been designated a terrorist organization by the United States and the European Union. It won legislative elections in Gaza in 2006 and has been in power there since 2007 without holding further elections. But it is not a state government: even countries that recognize Palestinian statehood do not recognize Hamas as their government.
To understand Hamas’s obligations under international law, you need to know two main things. First, although it is not a state government, it is still bound by the laws of war.
“The application of the law is triggered by the existence of armed conflict,” said Janina Dill, co-director of the Oxford Institute of 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 these laws are universal, not reciprocal. Illegal acts by one party to the conflict do not alter the obligations of the other party. On the contrary, no military cause is so just as to allow its supporters to violate international humanitarian law in order to achieve that goal.
Marco Milanovic, professor of public international law at the University of Reading in the United Kingdom, said: “The law of armed conflict has a very clear position that all parties have the same obligations, no matter how just their overall objectives. No matter how just the overall goal is, How legal or alleged illegal the entity is.
Furthermore, all individuals are subject to international criminal law, regardless of whether they are affiliated with governmental or non-state armed groups.
To those who believe that one party to the conflict is justified, this application of equality may seem outrageous. Israel and Hamas both issued angry statements after the ICC prosecutor announced he was seeking arrest warrants against their leaders, saying they were being placed in the same category as their war rivals.
But the core purpose of these laws is to protect civilians, who are entitled to the same protection whether they are threatened by state forces or non-state armed groups. Therefore, regardless of the number of Palestinians detained by Israel, Hamas’s actions to detain Israelis are legal, just as the number of Israelis killed on October 7 was not large, and Israel killed indiscriminately or disproportionately Palestinian civilians are also legal.
Does it matter if there are no police to enforce international law?
When I write about these issues, I often hear from people who wonder why they should take international law seriously when there is no international equivalent of the FBI to arrest wrongdoers or enforce court decisions.
I can understand the sentiment: given the broad consensus that Hamas has committed war crimes, the inability of the international legal system to immediately address these actions could make it appear to be an ineffective or even futile institution, especially compared to domestic legal systems. Compare. When a murder occurs in a country with a functioning justice system, we expect the perpetrators to be brought to justice – which often does not happen – and we know who has the power to do so. The lack of executive power in the international system can be troubling.
But international law relies more on diplomacy and negotiation than top-down enforcement. If states do not voluntarily execute arrest warrants or comply with ICJ judgments, there is no central authority to compel them to comply.
This does not mean that international law is meaningless. Fundamentally, rules governing conflict can serve as a deterrent, set standards of legitimacy, and thus be a source of external and internal pressure on armed groups.
Diehl, who studies compliance with international law, found that when troops receive legal training, they often internalize those norms as a measure of their own professionalism. For example, she said, U.S. service members often tell her that they consider themselves “professionals” who fight within the law, which they believe distinguishes them from their opponents, whom they describe as terrorists and murderers.
Tanisha Fazal, a political scientist at the University of Minnesota, found that armed groups seeking to establish newly independent states often adhere to international humanitarian law as a way to “demonstrate their ability and willingness to be good citizens of the international community and Accept the respect of the international community.” They seek admission. “
When it comes to Hamas and the current conflict, it’s fair to say that these incentives don’t seem to be working.
Palestinian statehood is one of Hamas’ goals. But the Palestinian Authority, not Hamas, is seen as the representative of Palestinians on the international stage, making the international arena a crowded field. Hamas, as a designated terrorist organization, may not see the prospect of international acceptance.
The organization also appears not to believe that support from ordinary Palestinians depends on demonstrating compliance with international law. Its militants filmed themselves carrying out the Oct. 7 attack, and Hamas publicly released some of the material, suggesting it may have anticipated obtain The legitimacy of violence.
But while many Palestinians took to the streets at the time of the October 7 attack to celebrate the humiliation suffered by their occupiers, Hamas’s boost in popularity appears to be temporary. Today, many in Gaza believe the group has waged a war that has caused catastrophic harm to civilians.
Will Hamas be held accountable?
A recent Wall Street Journal article noted that Hamas leader Yahya Sinwar made what it called a “cruel calculation” that the deaths of civilians in Gaza would help the group by increasing pressure on Israel . The article cited Sinwar’s letters, including a message in which he reportedly described civilian losses as “necessary sacrifices.”
The New York Times has not seen the reports and cannot independently confirm them. But if Hamas deliberately puts civilians at risk, such as hiding militants in crowded refugee camps, schools or hospitals — as some evidence suggests — it would be violating international law, which prohibits the use of human bodies shields, or the deployment of military installations in densely populated civilian areas.
That is, even if one party uses human shields, it does not relieve the other party of its obligations: civilians are still entitled to protection even if one party to the conflict has put civilians at risk by breaking the law.
Currently, the gap between clear evidence of war crimes committed by Hamas and its leader’s accountability in court may be incredibly wide. But that may not always be the case.
The ICC has a record of prosecuting members of non-state armed groups and its arrest warrants do not expire. Even if the war ends, the potential criminal liability of Hamas leaders will not.
