Hostage-taking, mass killings, bombing of a territory under siege: the outbreak of violence in Israel and Gaza has shocked the world.
It has been six days since hundreds of Hamas fighters infiltrated Israel to kill a thousand civilians in the streets, at home or at a rave, take more than 150 people hostage, and sow terror under a barrage of rockets.
In response, Israel carried out thousands of strikes to pound Hamas. More than 1,200 people have been killed in the Gaza Strip.
Legal experts believe in an interview with AFP that both camps could be accused of war crimes.
How are they defined?
“War crimes” are defined as serious violations of international law committed against civilians or combatants during armed conflict, a “grave violation” of the 1949 Geneva Conventions which established a legal framework for war after the Nuremberg tribunals for Nazi officials.
More than 50 atrocities are defined in the Rome Statute, the founding treaty of the International Criminal Court (ICC), including murder, torture, rape and hostage-taking.
It also includes intentional attacks directed against civilian objects, which are not “military objectives”.
“Crimes against humanity” are acts such as murder, enslavement, extermination, rape, persecution and other inhumane acts committed “as part of a widespread or systematic attack against any civilian population and aware of this attack.
Is the Hamas attack a war crime?
“It’s really terrible because there are violations of the laws of war on both sides,” said Melanie O’Brien, a visiting professor of international law at the University of Minnesota.
Regarding Hamas, she highlights the massive hostage-taking: “It’s a general ban. There is no condition that can justify it. […] It’s a war crime,” she told AFP.
For the French Minister of Foreign Affairs, Catherine Colonna, the Hamas attacks “are akin” to crimes against humanity.
“On the Hamas side, I think it’s pretty clear. I mean, the deliberate killing of civilians is a war crime,” said Ben Saul, professor of international law at the University of Sydney.
During Saturday’s attack on the Supernova music festival in the Negev desert, 270 festival-goers were shot or burned in their cars by Hamas militants.
What about Israel’s response?
“On the Israeli side, I would say the clearest is the declaration of a complete siege, preventing the entry of food, fuel, water and energy. In terms of criminal liability, starvation is a war crime,” Mr. Saul told AFP. Israel announced on Monday a “complete siege” of the Gaza Strip, including cutting off water, food and electricity supplies.
International law requires that parties to a conflict “allow and facilitate the rapid and unhindered passage of humanitarian aid to civilians in need,” Ms.me O’Brien.
Furthermore, Hamas and Israel are “indiscriminately bombing each other,” not just military personnel, which she also believes constitutes a war crime.
What is the role of the ICC?
The International Criminal Court (ICC) opened an official investigation in 2021 into the Palestinian Territories, including alleged crimes committed by Israeli forces, Hamas and other Palestinian armed groups.
Israel, which is not a member of the ICC, has refused to recognize the court’s jurisdiction or cooperate with the investigation, which focuses on possible crimes dating back to the 2014 war in the Gaza Strip.
The court simply stated that its mandate would also apply to any alleged crimes committed during the current war.
“It would be good if the prosecutor of the International Criminal Court made a stronger statement to urge the parties to the conflict not to violate the laws of war and to say that people will be prosecuted,” noted Melanie O’Brien.
The situation is complicated by the qualification of “national” or “international” of the conflict and by the status of the Palestinian territories, added Ben Saul.
“The problem with [la bande de] Gaza is that half of international lawyers say is occupied, the other half say it is not. If it is occupied, it is an international conflict, the full list of war crimes applies under the Rome Statute,” he stressed.
“This is an important legal question for the court, which has yet to be decided. »