Since the violence erupted on October 7, Israel and Hamas have accused each other of violating international law. While the terms “genocide”, “war crimes” and “crimes against humanity” are used to describe the murderous acts committed by both camps, France 24 takes stock of the legal meaning of these three terms.
The war between Hamas and Israel began two weeks ago and the fog of the conflict does not appear to be lifting.
More than 1,400 Israelis and 4,000 Palestinians have been killed since fighting began on October 7. More than 200 Israelis are still being held hostage by Hamas and, according to the United Nations, nearly half of Gaza’s population has been displaced.
Amid this incessant violence, calls for compliance with the rules of war have continued to be made by many international organizations and leaders.
On October 10, the UN Commission of Inquiry said it was “collecting and preserving evidence of war crimes committed by both sides.” The same day, US President Joe Biden called the Hamas attack in Israel an act of “terrorism” and said it “reawakened painful memories and wounds from millennia of anti-Semitism and genocide against the Jewish people.”
Three days later, Palestinian UN Ambassador Riyad Mansour called on the international organization to do more to prevent Israel from committing a “crime against humanity.”
Most recently, on October 18, hundreds of pro-Palestinian protesters gathered outside the headquarters of the International Criminal Court (ICC) in The Hague, Netherlands, demanding action against what they describe as the “genocide of the Palestinians.”
Among all these terms, it is not always easy to identify which ones correspond to what is happening in the Middle East today. France 24 examines the definitions of these words and how they may impact the murderous actions of Hamas and Israel in the last two weeks.
Also read: Israel-Hamas War: A look back at the two weeks that rocked the Middle East
war crimes
According to the United Nations definition, a war crime is an illegal act or series of acts that violate international humanitarian law and are intended to protect the civilian population.
War crimes are always committed intentionally and always take place in times of armed conflict, whether international or non-international.
They can be divided into several categories: crimes directed against vulnerable people such as the wounded or civilians; those targeting humanitarian efforts or peacekeeping operations; finally, those targeting goods.
War crimes can also include crimes against “prohibited methods or means of warfare,” including intentional killing, maiming, torture, taking hostages, and intentional attacks on civilians.
Committing a war crime means violating the rules of war laid down in several treaties, such as the Geneva Conventions from 1864 to 1949, the Hague Conventions (1899 and 1907) and the Rome Statute (1998).
The purpose of the Geneva Conventions is to protect civilians not involved in hostilities. The first convention (1864), whose negotiations were initiated by the founder of the Red Cross, Henri Dunant, was ratified within three years by all major European powers of the time. Today they are used by all UN member states.
“War is always inhumane,” says Marco Sassoli, professor of international law at the University of Geneva. “But if international humanitarian law were respected, it would be less inhumane.”
For him, who was also involved in drafting all recent commentaries on the Geneva Conventions, the Hamas attacks during the Tribe of Nova music festival in the desert near the Gaza border represent “a clear violation” of international law and a war Crime.
“People cannot be executed or taken hostage, and only military targets such as rocket launchers and command and control centers can be attacked,” the scientist notes.
Also read report – In Israel, trance culture at the bedside of survivors of the Tribe of Nova festival
But the legal outcome of such crimes is a long and arduous process. It takes years of thorough investigations and trials, and decisions are often made decades after a conflict has ended.
In 2012, for example, Liberia’s former president Charles Taylor was sentenced to 50 years in prison for atrocities he committed during Sierra Leone’s civil war in the 1990s.
The main body responsible for prosecuting those responsible for war crimes, the ICC, was created in 2002 with the Rome Statute. However, some cases are sometimes heard by special courts created by the United Nations.
When investigating war crimes, the same methods are used as when investigating any criminal activity. This includes interviewing witnesses, viewing sequences or images, and collecting evidence through analysis, autopsies, or DNA testing.
But the hardest thing to prove is often a particular leader’s intent, what he knew, and whether he was directly responsible for what happened.
“The problem with international justice is that it is extremely slow,” says Johann Soufi, an international lawyer and former legal director of UNRWA – the UN agency for Palestine refugees in the Middle East – who lived in Gaza for three years. “[Mais] Her big advantage is that she is extremely patient.”
Crimes against humanity
Unlike war crimes, crimes against humanity do not necessarily have to take place in the context of an armed conflict, nor do they have to be based on a specific overall intention.
They have not been defined and codified in a specific treaty like war crimes in the Geneva Conventions, although the UN hopes to reach a treaty on the subject.
Nevertheless, crimes against humanity are considered fundamental violations of international criminal law and “among the most serious crimes,” according to the ICC.
Crimes against humanity include apartheid – a system of oppression and domination by one racial group over another, institutionalized through discriminatory laws, policies and practices – slavery or the deportation of populations. They take place in the context of a widespread and systematic attack against a civilian population.
They are characterized by their large scale of violence, whether in terms of population or geographical location, or by the methodical way in which they are carried out. And they are usually planned or at least tolerated by government authorities.
Therefore, if an act is committed arbitrarily, accidentally or in isolation, it cannot be considered a crime against humanity.
In response to Hamas attacks, the Israeli army has razed entire neighborhoods in the Gaza Strip and is preparing for a ground intervention that is said to be imminent. The Israeli authorities have also warned the population in the north of the enclave to evacuate to the south. A decision that was “unacceptable in terms of humanitarian law,” said judge Marco Sassoli.
“When the Israeli authorities warn [les habitants d’une] House next to a command and control center [qu’il va être visé par une frappe]Therefore, this evacuation order is welcome,” he said. “But you can’t warn half of the Gaza Strip.” [qu’il faut évacuer]… Forced relocation within occupied territories cannot be justified in this case.”
The date of the first appearance of the term “crimes against humanity” is uncertain, but human rights experts say it was first used in the 18th century in connection with the slave trade and European colonialism.
Over the years, the definition of crimes against humanity has evolved within customary international law – consisting of rules derived from “general practice accepted as law” and existing independently of conventional law – and in international tribunals such as the International Criminal Court and many Other developed countries have incorporated these crimes into their national law.
Like war crimes, crimes against humanity are generally prosecuted by the International Criminal Court, but their perpetrators may also be tried in certain national jurisdictions under the principle of universal jurisdiction, which allows all states to prosecute and punish war criminals.
Again, bringing justice to victims of crimes against humanity is an arduous and daunting process. “War crimes and crimes against humanity are not committed by states and armed groups, but by individuals. “It is therefore much more difficult to identify the person responsible,” explains Marco Sassoli.
Difficult, but not impossible. In a landmark case by the United Nations Special Tribunal for the Former Yugoslavia (ICTY), Dusko Tadic – a former paramilitary who took part in the attack on Prijedor during the Bosnian War – was found responsible and convicted. This is the first-ever trial for sexual violence against men, which resulted in Dusko Tadic being sentenced to twenty years in prison.
genocide
The term was coined in 1943 by Raphael Lemkin, a Polish lawyer who witnessed the Nazi massacres during the Holocaust and worked throughout his life to have the word codified as an international crime. This term – consisting of the Greek prefix “genos”, meaning race or family, and the Latin suffix “cide”, meaning “to kill”, was first recognized as a crime under international law by the United Nations in 1946 and later codified in the Genocide Convention of 1948.
Like crimes against humanity, genocide can be committed through a variety of acts, such as murder, serious attacks on the physical and mental integrity, or even the forced displacement of children.
However, for these acts to be considered genocide, they must be “committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” What happened during the Holocaust is considered genocide against the Jews. A designation also retained by the United Nations for the atrocities committed in Rwanda (by the Hutu against the Tutsi) and by a part of the international community for the atrocities committed in Armenia (at the behest of the Young Turk government in time in the Ottoman Empire was in power). ).
What is special about genocide is that it can be committed both in the context of armed conflict and in peacetime, although this occurs less frequently. Again, intent is the most difficult element to track.
Although pro-Palestinian protesters have gathered around the globe under the slogan “Stop the genocide,” Marco Sassoli remains cautious in assessing Israeli attacks on Gaza. “We shouldn’t use such a serious term,” he believes.
In March 2021, the ICC opened a formal investigation into alleged war crimes in the occupied Palestinian territories during the 2014 Gaza War, a move vehemently opposed by Israel. Although the Jewish state is not one of the Court’s 123 member states, the Palestinian Territories are one of them.
“In an ideal world, we would never need humanitarian law because humanitarian law only applies to armed conflict. And in a world of law there would be no armed conflicts.”
This article was adapted from English by Pauline Rouquette.
The original version can be found here. Experts say Hamas and Israel are violating international law, but what does that mean?