Every legal expert I have consulted since the October 7 attack has reached the same conclusion: Hamas’s attack on civilians that day, including killings, torture, and hostage-taking, was a war crime. And, as many hostages remain held today, the crimes are continuing.
Tom Dannenbaum, a professor at Tufts University, told me a few days after the attack that there was “no doubt” that the Hamas assault involved multiple war crimes. “These were not thrilling events,” he said.
Since then, evidence has continued to mount. Last month, the ICC prosecutor Announce He seeks the arrest of three Hamas leaders on charges of war crimes and crimes against humanity in connection with the October 7 attack on Israel, as well as Hostage Taking He then requested the arrest of two Israeli officials. All of those sought denied the charges against them.
Last week, United Nations Committee The commission concluded that there was credible evidence that elements of Hamas and other Palestinian armed groups committed war crimes on October 7, including killing civilians, torture and hostage-taking. The commission also found evidence of war crimes committed by Israel, including the use of starvation as a weapon of war.
There are many misunderstandings about Hamas’ obligations under international law, so I want to use today’s column to explain those rules, how they apply to Hamas, and the surprising incentives they may create. Hamas declined to comment for this article, but Past Statements The group claims its fighters have a “religious and moral commitment” to avoid harming civilians.
A 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 using hunger As a weapon of war, and the legal issues raised by Israeli military attacks World Central Kitchen Aid Fleet.
Hamas is not a state. Does it still have to abide by international law?
Hamas Armed Islamic Group Hamas, founded in 1987, has been designated a terrorist organization by the United States and the European Union. The group won legislative elections in Gaza in 2006 and has been in power since 2007 without further elections. But it is not a national government: Even countries that recognize Palestinian statehood do not recognize Hamas as its government.
To understand Hamas’ obligations under international law, you need to know two main things. First, even though Hamas is not a national government, it is still subject to the laws of war.
“The existence of an armed conflict determines the applicability of the law,” said Janina Dill, co-director of the Institute for Ethics, Law and Armed Conflict at the University of Oxford. “Once a conflict begins, all organized armed groups involved are bound by international humanitarian law.
The second point is that these laws are universal, not reciprocal. Violations by one party to a conflict do not alter the obligations of the other. Conversely, no military cause is so just that its supporters should be allowed to violate international humanitarian law to achieve it.
“The position of the law of armed conflict is very clear that all parties have the same obligations, regardless of how just the overall purpose may be and regardless of the legality or alleged illegality of the entity,” said Marko Milanovic, professor of public international law at the University of Reading in the United Kingdom.
Furthermore, all individuals, whether affiliated with a Government or a non-State armed group, are subject to international criminal law.
For those who believe that one party to a conflict has a legitimate interest, this equal application may seem unacceptable. Seeking a search warrant For their part, leaders of Hamas and Israel have both issued angry statements, claiming to be in the same category as their opponents in the war.
But the core purpose of these laws is to protect civilians, who are entitled to the same protections regardless of whether they are threatened by state forces or non-state armed groups. Thus, the number of Palestinians detained by Israel is not sufficient to legitimize Hamas’s holding of Israelis hostage, just as the number of Israelis killed on October 7 is not sufficient to legitimize Israel’s indiscriminate or disproportionate killing of Palestinian civilians.
What’s the point if there are no police to enforce international law?
When I write about these issues, I often receive messages from people who wonder why they should take international law seriously, since there is no international equivalent to the FBI to arrest criminals or enforce court sentences.
I understand the sentiment: given the widespread belief that Hamas has committed war crimes, the inability of the international legal system to immediately address these acts makes it look like an ineffective or even useless institution, especially compared to domestic legal systems. When murder occurs in a country with a functioning justice system, we expect the perpetrators to be brought to justice—though that, of course, often does not happen—and we know who has the power to do so. The lack of enforcement power in the international system can be unsettling.
But international law relies more on diplomacy and negotiation than on top-down enforcement. If countries do not voluntarily execute arrest warrants or comply with the judgments of international tribunals, there is no central authority to force them to comply.
This does not mean that international law is meaningless. Fundamentally, the rules governing conflict serve as deterrence, establish standards of legitimacy and thus serve as a source of external and internal pressure on armed groups.
Diehl, a scholar who studies compliance with international law, has found that when militaries receive legal training, they tend to internalize those norms as a measure of their own professionalism. She said that, for example, American service members often tell her that they see themselves as “professionals” fighting in accordance with the law, which they see as different from what they see as their adversaries, who are terrorists and murderers.
Tanisha Fazal, a political scientist at the University of Minnesota Establishment Armed groups seeking to establish newly independent states often adhere to international humanitarian law in order to “demonstrate their ability and willingness to be good citizens of the international community they seek to join”.
When it comes to Hamas and the current conflict, it’s fair to say that these incentives don’t seem to be working.
One of Hamas’ goals is to establish a Palestinian state. But the Palestinian Authority, not Hamas, is seen as the representative of the Palestinians on the international stage, so competition is fierce. Hamas has been designated a terrorist organization, so it is unlikely to gain international recognition.
Nor does the group appear to believe that support among ordinary Palestinians depends on compliance with international law. Its fighters filmed themselves carrying out the October 7 attack, and Hamas has publicly released some of the material, suggesting it may have anticipated the Get Legitimacy is the result of violence.
However, while many Palestinians took to the streets on October 7 to celebrate what they saw as the humiliation of the occupiers, Hamas’s boost in popularity appears to have Proven to be temporaryToday, many in Gaza hold the group responsible for starting a war that has inflicted catastrophic damage on civilians.
Will Hamas be held accountable?
A Recent Articles A Wall Street Journal article claimed that Hamas leader Yahya Sinwar made what it called a “cruel calculation” that civilian deaths in Gaza would help the group increase pressure on Israel. The article cited Sinwar’s letters, including a message in which he allegedly described civilian casualties as “necessary sacrifices.”
The New York Times has not seen the information and cannot independently verify it. But if Hamas deliberately put civilians at risk, such as by hiding fighters in crowded refugee camps, schools or hospitals — as Some evidence suggestion — This would violate international law, which prohibits the use of Human Shieldor setting up military facilities in densely populated areas Civilian area.
Nevertheless, even if one party uses human shields, it does not relieve the other party of its obligations: even if one party to the conflict has endangered civilians by violating the law, civilians still have the right to be protected.
At the moment, the gap between the clear evidence of Hamas’ war crimes and the punishment its leaders have received in court seems implausible. But that may not always be the case.
The International Criminal Court has a Track record Prosecution of members of non-State armed groups and their warrant Even if the war ends, the potential criminal liability of Hamas leaders will not expire.
