Every legal expert I have consulted since the October 7 attacks has come to the same conclusion: Hamas’ attacks against civilians that day, including murder, torture and hostage-taking, were war crimes — and, with many hostages still being held, they 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 attack was linked to multiple war crimes. “It’s not a close call,” he said.
Since then, the evidence has continued to mount. Last month, the International Criminal Court prosecutor Announced He is seeking arrest warrants for three Hamas leaders on charges of war crimes and crimes against humanity in connection with the October 7 attack on Israel and the subsequent hostage crisis, as well as two senior Israeli government officials. All targets of the arrest warrants have denied the charges.
Last week, a UN commission concluded that there was credible evidence that members of Hamas and other Palestinian armed groups committed war crimes, including the killing of civilians, torture and taking hostages, on October 7. The commission also found evidence of Israeli war crimes, including using starvation of civilians as a weapon of war.
There is a lot of misunderstanding about Hamas’ obligations under international law, so in today’s column I thought I would explain those rules, how they apply to Hamas, and what unexpected incentives they create. Hamas declined to comment for this article, but Past Statements The group says its fighters have a “religious and moral responsibility” to avoid harming civilians.
A quick note: I am not going to write about Israel’s alleged war crimes in this post, but I have written before about some of those issues, such as the use of starvation as a weapon of war and the legal issues that arose from the Israeli military’s attack on a World Central Kitchen aid convoy.
Hamas is not a state. Does it still have to comply with international law?
Hamas is an Islamic militant group founded in 1987 and designated a terrorist organization by the United States and the European Union. It won parliamentary elections in the Gaza Strip in 2006 and has been in power without elections since 2007. However, Hamas is not a national government; even countries that have recognized the Palestinian state do not recognize Hamas as a government.
There are two main things to know in understanding Hamas’ obligations under international law: First, although Hamas is not a national government, it is still bound by the laws of war.
“The application of this 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, all organized armed groups taking part are bound by international humanitarian law.
The second point is that these laws are universal and not reciprocal: violations by one party to a conflict do not change the obligations of the other. Conversely, no military cause is so just as to permit its supporters to violate international humanitarian law to achieve their aims.
“The position in the law of armed conflict is very clear,” said Marko Milanovic, professor of public international law at Britain’s University of Reading, “which means that all parties have the same obligations, regardless of how legitimate their overall cause is, and regardless of whether their organizations are questionable in their legitimacy or illegality.”
Moreover, all individuals, whether belonging to a government or a non-state armed group, are subject to international criminal law.
To those who believe one side of the conflict has a just cause, this equal application may seem outrageous. After the ICC prosecutor announced that it was seeking arrest warrants for Hamas and Israeli leaders, both Israel and Hamas issued statements expressing outrage at being put in the same category as opposing sides in the war.
“But the primary purpose of these laws is to protect civilians, and civilians are entitled to the same protections regardless of the threat from state forces or non-state armed groups. Thus, the number of Palestinians held by Israel does not make it lawful for Hamas to take Israelis as hostages. Similarly, the number of Israelis killed on October 7 does not make it lawful for Israel to kill Palestinian civilians indiscriminately or disproportionately.”
If there are no police officers enforcing international law, does it still matter?
When I write about these issues, I often receive messages wanting to know why we should take international law seriously if there is no international equivalent of the FBI to apprehend criminals or enforce court sentences.
That sentiment is understandable. Given the widespread agreement that Hamas has committed war crimes, the failure of the international legal system to promptly address those acts may make it seem inefficient or even ineffective, especially when compared with domestic legal systems. When murder occurs in a country with a functioning justice system, we want the perpetrators to be brought to justice. Of course, that often doesn’t happen, and we know who has the authority to do so. The lack of enforcement power in the international system is jarring.
But international law relies heavily on diplomacy and negotiation rather than top-down enforcement: if states do not voluntarily enforce arrest warrants or comply with international court rulings, there is no central authority to make them comply.
This is not to say that international law is irrelevant: at a basic level, rules regulating conflict can act as a deterrent and create standards of legitimacy that can be a source of external and internal pressure on armed groups.
Dill, who studies international law enforcement, has found that when military personnel undergo legal training, they often internalize those norms as a measure of their own professionalism. For example, she said, U.S. soldiers often told her they considered themselves “professionals” who fought according to the law, believing that this distinguished them from their supposed enemies, terrorists and killers.
Tanisha Fazal, a political scientist at the University of Minnesota, found Armed groups seeking to establish new, independent states often adhere to international humanitarian law as a way of “demonstrating their ability and willingness to be good citizens of the international community to which they wish to join”.
When it comes to Hamas and the current conflict, it is fair to say that those incentives do not seem to be working.
The establishment of a Palestinian state is one of Hamas’s goals, but the Palestinian Authority, not Hamas, is seen as the representative of the Palestinian people on the international stage, and it faces many competitors. As a designated terrorist organization, Hamas’ chances of being accepted by the international community may be slim.
The group also does not appear to believe that support from ordinary Palestinians will depend on demonstrating compliance with international law. The group’s fighters filmed themselves carrying out the October 7 attack, and Hamas posted some of the footage publicly, suggesting that Hamas may have anticipated the attack. Acquire Legitimacy as a consequence of violence.
But as the Oct. 7 offensive unfolded, with many Palestinians taking to the streets to celebrate what they saw as a humiliation to the occupiers, Hamas’s surge in popularity appears to have been short-lived. Today, many in Gaza hold Hamas responsible for starting a war that has brought devastating damage to civilians.
Will Hamas be held accountable?
a Recent Posts The Wall Street Journal reported that Hamas leader Yahya Sinwar has made a “brutal calculation” that civilian deaths in Gaza will increase pressure on Israel to favor Hamas. The article quoted a letter from Sinwar in which he reportedly described civilian deaths as a “necessary sacrifice.”
The New York Times has not seen the messages and could not independently verify them. But if Hamas was knowingly endangering civilians, for example by hiding fighters in overcrowded refugee camps, schools and hospitals, as some evidence suggests, it would be violating international law, which states: Human Shieldor locating military installations in populated areas. Private areas.
However, the use of human shields by one party does not absolve the other of its obligations: civilians are entitled to protection even if one party to a conflict has already put civilians at risk in violation of the law.
For now, the gulf between the clear evidence of war crimes committed by Hamas and the accountability of its leaders in court may seem incredibly wide, but this has not always been the case.
The ICC has Achievements The right to prosecute members of non-state armed groups and arrest warrants do not expire, and the potential criminal liability of Hamas leaders will not change even if the war ends.
