October 7 Attack on Israel: Can Hamas Ever Be Condemned?

Laura Laplaud 18:00 p.m., November 07, 2023

The conflict between Israel and Hamas, which entered its 32nd day on Tuesday, was sparked by the massive attack by the Palestinian Islamist movement on October 7 on Israeli soil. The attacks killed more than 1,400 people, most of them civilians, many of them brutally murdered, and more than 240 hostages, according to Israeli authorities.

In retaliation, the Israeli army has relentlessly bombed this totally besieged territory where 2.4 million Palestinians are crammed, and has been conducting ground operations there since 27 October. Since then, more than 10,000 people have been killed, including more than 4,000 children, according to Hamas health officials. In this conflict between Israel and Hamas, can the Palestinian Islamist group ever be condemned for the massive attack of October 7? If so, for what crimes?

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"Using the civilian population as human shields may constitute a war crime"

"The fact of using the civilian population as human shields, that is to say that they are used to hide military objectives or to serve as a shield to launch attacks, can constitute a war crime," said Caroline Brandao, a professor and researcher in humanitarian law.

War crime is defined as the violation of international humanitarian law, regardless of whether the crime is perpetrated against civilians or armed groups. According to the definition adopted by the United Nations, which is based on the Geneva Convention of 1949 and the Rome Statute of 1998, war crimes include wilful killing, torture, injury to body or health, destruction and appropriation of property, hostage-taking, as well as intentional attacks against the civilian population or civilian objects. attacking or bombing, by any means, undefended cities, villages, dwellings or buildings that are not military objectives, or intentionally directing an attack with the knowledge that it will incidentally cause loss of civilian life.

Crimes against humanity are not necessarily related to armed conflict and can occur in peacetime. These are, as defined in article 7 of the Rome Statute, "acts committed as part of a widespread or systematic attack against any civilian population". Genocide is defined as the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as defined by the United Nations.

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National courts, the first to have jurisdiction

To try people who have not respected humanitarian law, national courts – in this case Israel and Palestine – are the first to have jurisdiction. "If they are not able to do so for material reasons, lack of courts, magistrates or if there is no political will to do so, international courts can be set up," explains Caroline Brandao.

The International Criminal Court (ICC) will be the first to have jurisdiction over such crimes, since Palestine has acceded to the Rome Statute that founds the Court, thus giving jurisdiction to criminally prosecute any war crime or crime against humanity committed on its soil or by a Palestinian. This is not the case for Israel, which has not adhered to these statutes. The international community, through the United Nations, can also request the establishment of commissions of inquiry.

The concept of universal jurisdiction may come into play

If the international court does not have jurisdiction, the concept of universal jurisdiction comes into play. The 1949 Geneva Convention provides that courts in other countries may take up cases to try people who have committed mass crimes. "One could very well imagine that French, German, Italian or other courts would have jurisdiction to try people who have committed serious violations of humanitarian law," says the teacher-researcher. But it is difficult to imagine that France, which has restrictive jurisdiction, would prosecute the perpetrators of war crimes or crimes against humanity. "There would have to be a connecting link. For example, whether a Hamas terrorist has dual nationality or whether the offence is committed on a French victim," Brandao said.

"On the other hand, other jurisdictions have a much broader interpretation of universal jurisdiction, such as Belgium or Italy, which could say 'we are dealing with war crimes, we must fight against impunity, so I am taking up the matter and I am going to judge these people who have not respected humanitarian law'," she said.

Justice still discreet

Today, while it is likely that Hamas terrorists will one day be convicted of war crimes as well as crimes against humanity (the sentences can be cumulative) in the bloody attack of October 7, this requires the opening of an investigation by a national or international court in order to gather evidence to prove the crime in question. And unlike the armed conflict in Ukraine, where national courts and the International Criminal Court were quick to take up the case, justice remains discreet.

"What we are waiting for today is for national and international courts to take up the case, for more commissions of inquiry to be launched at the UN level. And above all, we are waiting to hear from the ICC [even if] it is starting to do so very cautiously," concludes Caroline Brandao.