Hamas attack: Are war crimes being committed?

Europe 1 with AFP / Photo credit: MAHMUD HAMS / AFP 18:12 p.m., October 12, 2023

Hostage-taking, mass killings, bombing of a territory under siege: the unleashing of violence in Israel and Gaza has shocked the world. It has been six days since hundreds of Hamas terrorists infiltrated Israel to kill a thousand civilians in the streets, in their homes or at a rave party, to take more than 150 people hostage, to spread terror under a deluge of rockets.

In response, Israel carried out thousands of strikes to pound Hamas. More than 1,200 people have been killed in the Gaza Strip. Legal experts told AFP that both sides could be charged with war crimes.

How are they defined?

"War crimes" are defined as serious violations of international law committed against civilians or terrorists during armed conflict, a "grave breach" of the 1949 Geneva Conventions that established a legal framework for war after the Nuremberg tribunals of Nazi officials. More than 50 atrocities are defined in the Rome Statute, the founding treaty of the International Criminal Court (ICC), including murder, torture, rape and hostage-taking.

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This also includes intentional attacks against civilian objects, which are not "military objectives". "Crimes against humanity" are acts such as murder, enslavement, extermination, rape, persecution and other inhumane acts, committed "as part of and with knowledge of a widespread or systematic attack against any civilian population".

Is the Hamas attack a war crime?

"It's really terrible because there are violations of the laws of war on both sides," said Melanie O'Brien, a visiting professor of international law at the University of Minnesota. Regarding Hamas, she points to the massive hostage-taking: "It's a blanket ban. There are no conditions that can justify it... It's a war crime," she told AFP.

French Foreign Minister Catherine Colonna said Hamas' attacks "amounted to" crimes against humanity. "On the Hamas side, I think it's pretty clear. I mean, the deliberate killing of civilians is a war crime," said Ben Saul, a professor of international law at the University of Sydney. During Saturday's attack on the Supernova music festival in the Negev desert, 270 festival-goers were shot dead or burned in their cars by Hamas militants.

What about Israel's response?

"On the Israeli side, I would say that the clearest is the declaration of a complete siege, preventing the entry of food, fuel, water and energy. In terms of criminal responsibility, starvation is a war crime," Ben Saul told AFP. Israel announced on Monday a "complete siege" of the Gaza Strip, cutting off water, food and electricity supplies. International law requires parties to a conflict "to allow and facilitate the rapid and unimpeded passage of humanitarian assistance to civilians in need," O'Brien said.

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In addition, Hamas and Israel are "indiscriminately bombing each other," not just military personnel, which she said was also a war crime.

What is the role of the ICC?

The International Criminal Court (ICC) opened an official investigation in 2021 into the Palestinian territories, including alleged crimes committed by Israeli forces, Hamas and other Palestinian armed groups. Israel, which is not a member of the ICC, has refused to acknowledge its jurisdiction or cooperate with the investigation, which focuses on possible crimes dating back to the 2014 war in the Gaza Strip. The court simply stated that its mandate would also apply to any alleged crime committed during the current war. "It would be good if the prosecutor of the International Criminal Court made a stronger statement urging the parties to the conflict not to violate the laws of war and saying that people will be prosecuted," O'Brien said.

The situation is complicated by the characterization of the conflict as "national" or "international" and by the status of the Palestinian territories, Ben Saul added. "The problem with Gaza is that half of the international lawyers say it's occupied, the other half say it's not. If it is occupied, it is an international conflict, the full list of war crimes applies under the Rome Statute," he stressed. "This is an important legal issue for the court, which has yet to be decided."