12 Oct International Criminal Law Analysis of the Situation in Israel
Since my fields of research include criminal law, international law, and international humanitarian law, several colleagues and students have asked for my preliminary legal assessment regarding the recent attacks in Israel by Hamas terrorists. These terrorist attacks were egregious and shocking violations of human dignity and cannot be justified in any context. Although facts are still being gathered, the available evidence suggests that the killings and kidnappings constituted war crimes in violation of Article 8 of the Rome Statute and customary international law. In addition to the core prohibition against killing innocent civilians, Article 8(2)(a)(viii) of the Rome Statute prohibits the taking of hostages. The failure to release the hostages makes this a continuing and ongoing crime. These prohibitions apply in both international and non-international armed conflicts, so the acts constitute international crimes regardless of the classification of the armed conflict between Israel and Hamas.
As for crimes against humanity under Article 7 of the Rome Statute and customary international law, there is evidence that the attacks were carried out pursuant to an organizational “plan or policy,” which would satisfy the legal requirement of a widespread or systematic attack against a civilian population. There is no question that the terrorist attacks were carried out pursuant to a plan, since the Hamas attack required extensive coordination and advance planning for many months. Furthermore, the “widespread” prong was also satisfied by virtue of the fact that the killings occurred in so many different cities and locations simultaneously. In addition to these “chapeau” elements for crimes against humanity, there were multiple “predicate” acts committed, including murder violating 7(1)(a), Imprisonment or other severe deprivation of physical liberty violating 7(1)(e), sexual violence violating 7(1)(g), persecution violating 7(1)(h), and other inhumane acts violating 7(1)(k). Indeed, each killing, kidnapping, and inhumane act constituted a separate predicate act. The predicate act of persecution seems particularly relevant to this case, because “the perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such” and “such targeting was based on political, racial, national, ethnic, cultural, [or] religious” grounds, in the words of the Elements of Crimes. Consequently, a prosecution for crimes against humanity could either allege one predicate act or all of them, with each one sufficient by itself to satisfy the legal standard, depending on how narrow or how wide a case the prosecutor elected to pursue.
The terrorist attacks constituted genocide in violation of the Genocide Convention and Article 6 of the Rome Statute if the perpetrators acted with genocidal intent, i.e., the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” For an attack to constitute genocide, it is not necessary that the perpetrators successfully achieve that destruction as a result element; it is sufficient that the perpetrators acted with the required “dolus specialis,” which in the case of genocide is the intent to destroy the group in whole or in part. An assessment of a perpetrator’s mental state may be made by consideration of the available facts, including the perpetrator’s behavior, and inferring the relevant mental state if the facts support it. In prior cases, international tribunals have held that it is sufficient if the perpetrator acted with the intent to destroy the group in a particular geographical region, which would fulfill the group destruction “in part” prong. In this case, though, there is strong evidence that the crime was motivated by a desire on the part of the perpetrators to destroy Israel, and its members, in their entirety, rather than a more limited political objective. Indeed, public statements from the Hamas group support this conclusion. The protected classes in the definition of genocide include not just religious groups but also national groups, which would cover individuals attacked because they are Israeli. As for the required predicate acts, the attacks implicated article 6(a) (killing members of the group) and Article 6(b) (causing serious bodily or mental harm to members of the group). According to the Elements of Crimes, the predicate acts must have “taken place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.” Given the widespread nature of the attacks in multiple locations at the same time, including the large number of perpetrators and victims, it would appear that the “manifest pattern” requirement applies to this case. The terrorist attack was therefore genocidal in nature.
In addition to the substantive crimes, modes of liability are highly relevant in this case. Criminal responsibility applies not just to the physical perpetrators but to any culpable individual linked to them through a mode of liability such as command or superior responsibility, indirect perpetration through an organized apparatus of power, co-perpetration, indirect co-perpetration, or accomplice liability. This could include individuals with a culpable mental state who facilitated the crime, even from far away, by providing assistance to the commission of the crime. Individuals who provide assistance in the future to the hostage-takers are complicit in that crime.
It is important to remember that the legal rules regarding war crimes, crimes against humanity, and genocide, apply independent of any legal conclusion regarding the collective right of self-determination, issues of sovereignty, or jus ad bellum (including the right to self-defense). International law protects human dignity in all contexts and the requirement to comply with the demands of international criminal law is universal in scope.
The requirements of international humanitarian law (IHL) and the law of armed conflict (LOAC) are also universal and apply equally to all parties to an armed conflict, regardless of who triggered the armed conflict in the first place. In other words, the legal requirements are reciprocal. This includes an absolute prohibition on making civilians the direct object of attack, the prohibition on indiscriminate attacks against civilians, and the prohibition on causing disproportionate collateral damage. Furthermore, Additional Protocol I (Article 54(1)) and Additional Protocol II to the Geneva Conventions, as well as customary international law, prohibit the use of starvation as a military tactic against enemy civilians. What this means in practice is that a siege may be used as a tactic only against a legitimate military target and civilians cannot be the object of the siege; civilians must have an avenue to escape and deliveries of food, water, and medicine cannot be suspended into the zone. Indeed, the International Committee of the Red Cross IHL Database quotes Israel’s Manual on the Laws of War for the proposition that the prohibition of starvation “clearly implies that the city’s inhabitants must be allowed to leave the city during a siege.”
The images and videos from the Hamas terror attacks are brutal and painful to watch. They reflect a breakdown of our common humanity and I condemn them in the strongest possible terms. The analysis of such horrible crimes in precise legal terms and definitions may sound clinical in nature, but the criminal law uses terms, concepts, and categories to respond to, and hopefully redress, instances of profound inhumanity, death, destruction, and evil. This should not be misinterpreted as a lack of empathy, commitment, or emotion. In fact, the opposite is true. In pursuit of justice and fairness, the rule of law as an institution seeks to translate sharp emotions into concrete legal results.