What are war crimes? How are they prosecuted? What to know as Israel-Hamas war rages

Both Israel and Hamas have faced a barrage of war crimes allegations following the outbreak of their conflict, which has left thousands dead and millions under siege.

The Israeli government accused Hamas — a Palestinian Islamist group whose armed combatants invaded southern Israel on Oct. 7 and killed 1,300 people, according to Israeli officials — of committing war crimes.

Hamas has likewise accused the Israeli military — whose siege and bombardment of Gaza has killed 3,785 people as of Oct. 19, Palestinian officials said — of perpetrating war crimes.

Outside observers, including at least a half-dozen members of Congress, European lawmakers, nonprofits, activists and academics, have accused one or both sides of committing war crimes.

But, what exactly are war crimes? Who can commit them? How are they prosecuted?

And what do we know about war crime prosecution in Israel and Palestine so far? Experts explain.

What are war crimes?

War crimes are one of three atrocity crimes that “constitute violations of the international law of armed conflict, or international humanitarian law,” Ernesto Verdeja, a professor of political science at the University of Notre Dame, told McClatchy News.

War crimes refer “to a whole cluster of different types of crimes,” Verdeja said. These include: taking civilians hostage; “attacking civilians when it’s not a military necessity; the mistreatment of prisoners of war; and the destruction of places that are not a military necessity, such as religious institutions, schools, hospitals (and) places like that.”

According to Stefan Schmitt, a forensic researcher at Florida International University who has worked in nearly a dozen countries, including Libya and Iraq, “these (places) all enjoy what’s called protected status. They’re protected because they’re not taking part in any kind of military function, are civilian, and, therefore, they’re illegal to attack.”

War crimes also include executing soldiers who have surrendered and targeting — or not preventing the targeting of — excess civilian populations, Rebecca Hamilton, a law professor at American University and former lawyer for the International Criminal Court, told McClatchy News.

“Those are usually the first (atrocity) crimes that we see,” Hamilton said, “and are sort of most straightforward to identify at the start of a conflict.”

The other two atrocity crimes are crimes against humanity and genocide.

Crimes against humanity are deliberate acts, such as killing, rape or torture, that cause human suffering, “in a either widespread or systematic way, directed against a civilian population,” Hamilton said. They “can be perpetrated in a situation of armed conflict, but they can also be perpetrated in a peacetime situation.”

Genocide is the act of killing or causing serious harm “with the specific intent to destroy a group … in part or in whole,” she said. A group is defined along “a range of protected bases, such as nationality or race.”

Crimes of aggression are sometimes considered a fourth atrocity crime, Verdeja said, and involve “starting an unprovoked war.”

Ethnic cleansing, however, is “not really a crime in international law,” Verdeja said. “It just means the forced removal of people from their land. That’s basically almost always a war crime and/or a crime against humanity.”

Also known as the law of war, the international humanitarian law that defines atrocity crimes tries to balance two competing aims: weakening the opponent militarily and minimizing civilian suffering, Verdeja explained.

To balance these, international humanitarian law is bound by four principles: military necessity, the distinction between civilians and combatants, proportionality of violence and mitigation of unnecessary suffering.

Atrocity crimes have different focuses but can overlap or occur simultaneously, Verdeja and Hamilton said.

Who can commit war crimes? And who can be prosecuted for them?

Any combatant involved in an interstate or intrastate conflict can commit an atrocity crime, several experts said. This means a broad scope of people, from low-ranking soldiers to five-star generals to heads of state, are capable of carrying out such crimes.

However, when it comes to prosecution, particularly at the International Criminal Court, or ICC, those higher up the chain of command are typically prioritized, Hamilton said.

“It’s not just about holding any individual responsible. It’s usually a policy of trying to get those who are most responsible,” Hamilton said. “So even though you might have footage of a ‘foot soldier’ directly committing a crime, what an international prosecutor is interested in is: where did the order come from?”

Prosecutors, with limited resources, also tend to set their sights on individuals who are “most representative of the overall conflict situation,” Hamilton said, and combatants whose prosecution is most likely to deter future atrocity crimes.

How are war crimes generally prosecuted?

War crimes prosecution has four main stages: establishing jurisdiction, investigating, formally bringing a case and holding a trial.

There are three main venues through which an individual can be prosecuted for atrocity crimes.

The first is through civilian and military courts within the country where the alleged crimes were committed, Hyeran Jo, an associate professor at Texas A&M University who specializes in international relations, told McClatchy News.

If domestic courts elect to take up cases involving alleged atrocity crimes — the most serious crimes a person can commit — they have to demonstrate their processes are fair and rigorous, Hamilton said.

Otherwise, two other venues may become involved.

The second place these crimes can be prosecuted is in the courts of third-party countries, Hamilton said.

“For example, we have seen prosecutions in Germany of crimes that were committed in Syria,” she said. In these cases, German nationals weren’t even necessarily involved, Hamilton said, but the alleged crimes were “so egregious” that the domestic courts in Germany decided to intervene.

The third and last venue in which atrocity crimes can be tried is the ICC, which is based in The Hague, the Netherlands.

“The ICC is a court of last resort,” Kelebogile Zvobgo, a professor at the College of William & Mary and founder of the International Justice Lab, told McClatchy News. “It only intervenes when countries (or) when the relevant parties prove unwilling or unable to conduct genuine proceedings of their own.”

In order for the ICC to step in, it has to acquire jurisdiction through one of three routes, Zvobgo said.

“The first is a referral by the United Nations Security Council,” she said. “The other method is a self referral where a country refers itself to the ICC. And then the last method is called proprio motu, which is basically on the prosecutor’s prerogative.”

However, the ICC only has jurisdiction over nationals from countries party to the Rome Statute, the 1998 treaty that founded the court. Over 120 countries have signed onto the statute while over a dozen others, including Israel, Russia, China and the United States, have not signed onto it or did but never had their legislatures ratify it.

Once the ICC attains jurisdiction and opens a preliminary investigation, prosecutors begin the long and arduous process of collecting evidence, which can take years, Zvobgo said.

This involves gathering information that’s been reported in the media, interviewing witnesses and visiting sites where alleged crimes occurred, among other steps, Verdeja said.

“The first thing to look for is non-combatants … civilian victims,” Schmitt said.

In addition to bodies — which are searched for patterns of injury — investigators examine protected buildings.

Precise documentation in the form of detailed notes and GPS-stamped photos and videos are gathered in order to build a body of evidence that can hold up in court, Schmitt said.

But it’s not enough to just find evidence of an atrocity crime; investigators must also find specific evidence that is linked to the suspect in question, Hamilton said.

If this burden is met, the court could then bring charges against the individual and issue an arrest warrant, Verdeja said.

The ICC does not have its own police force, so it relies on countries to apprehend and transfer suspects, Zvobgo said. Governments, however, do not always comply, and it’s at this stage that many investigations break down as the ICC will only try individuals in its custody.

“Absent a government turning its own people over … the individual would have to travel to another country that is an ICC member state,” Zvobgo said. “And that state would have to meet its obligation to arrest and transfer the ICC fugitive, but this does not always happen.”

If the suspect is arrested and brought to The Hague, a series of initial and secondary hearings take place followed by a trial before a panel of judges, Verdeja said.

If found guilty, suspects can be sentenced to up to 30 years in prison, according to the ICC, though life sentences can be handed down “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” Fines and forfeitures of assets can also be ordered. Suspects can appeal a verdict.

The ICC has taken up over 30 cases since its founding, with ten suspects — including three Congolese political leaders and one Al Qaeda affiliate — found guilty.

Citizens of more powerful nations suspected of committing crimes have evaded prosecution “by not joining the ICC and by blocking referrals by the (UN) Security Council,” according to Human Rights Watch, an international nonprofit.

What do we know about prosecuting war crimes in the Israeli-Palestinian conflict?

In the context of Israel and Palestine, the ICC has begun the early stages of war crimes prosecution — establishing jurisdiction and opening an investigation — but experts agree that what comes next is unknown.

The only certainty is that this process will take years to reach a resolution, if ever.

Although Israel is not a party to the ICC, Palestine is. Therefore, experts agree that the ICC has the jurisdiction to investigate and prosecute any atrocity crimes that occur in Palestinian territory or are committed by Palestinians in other states.

Zvobgo explained that the ICC has the jurisdiction to prosecute atrocity crimes “even for the nationals of nonmember states,” such as Israel. “What matters more is territoriality, so did the suspected abuses occur on the territory of an ICC member state?”

Although Palestine is not fully recognized as a sovereign nation, the ICC recognized it as a state party in 2015 for legal purposes. The territory defined as Palestine under the ICC includes the Gaza Strip, West Bank and East Jerusalem.

Israeli courts can still choose to prosecute atrocity crimes committed on its territory, Hamilton explained.

The ICC is currently investigating the “situation in the State of Palestine,” per its website. This investigation was opened in March 2021 and includes any alleged crimes that occurred since June 2014.

The office of the ICC prosecutor told Reuters in an Oct. 10 article that “this mandate is ongoing and applies to crimes committed in the current context.”

Outside of this statement, Hamilton said, “there’s been nothing released publicly about where they’re at.”

Investigating war crimes is always complicated, but it’s much more so amid an ongoing conflict, Hamilton and Schmitt said. The conflict endangers the safety of ICC investigators, victims and potential witnesses.

“You never want to put someone who you are interviewing or gathering evidence from at risk by the fact that they are talking to an international prosecutor,” Hamilton explained. When victims or witnesses speak to ICC prosecutors, “other parties could perceive them as being a threat.”

The ICC can still investigate by focusing on the “documentation, preservation and authentication” of digital evidence, she said.

If the ICC does begin prosecuting a specific case of war crimes, experts expect they will have a difficult time getting any accused perpetrators into a courtroom.

This challenge might be further compounded if the accused perpetrators have strong links to a major geopolitical power, Zvobgo said. She pointed to the example of the ICC opening an investigation into U.S. actions in Afghanistan, then shifting the focus to Taliban and ISIS-K actions after the U.S. imposed economic sanctions on the prosecutor.

“These actions are kind of suggestive of the court’s hesitancy, I think, to pursue major powers, and certainly the U.S. and the U.S.’s friends,” Zvobgo said.

Experts agreed that Hamas and Israel have both taken actions that appear to be war crimes. Experts pointed to Hamas combatants targeting civilians and taking civilians hostage during its Oct. 7 attack, and the Israeli military harming Palestinian civilians by cutting off food, water and electricity to the Gaza Strip.

Prosecuting these types of actions, linking them to a specific suspect and determining if they are legally war crimes, however, is a very long and drawn out process — if it happens at all.

“We’re in the early stages of an extremely catastrophic and violent war,” Verdeja said. “There’s no reason to believe that any of the sides would give up alleged perpetrators to the court.”

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