Is Hamas Bound by International Law? What to Know.

[Pelican Press 0]

Is ****** Bound by International Law? What to Know.

Since the attacks of Oct. 7, every legal expert I have asked has shared one conclusion: ******’s attacks on civilians that day, including ********, ********, and ********-taking, were war *******. And because many hostages are still being held, that ****** ******** ongoing.

Tom Dannenbaum, a Tufts University professor, told me just days after the ******* that there was “no question” ******’s ******* had involved multiple war *******. “Those are not close calls,” he said.

Since then, evidence has continued to mount. Last month, the prosecutor of the International ********* Court

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that he was seeking warrants for the arrest of three ****** leaders on charges of war ******* and ******* against humanity relating to the Oct. 7 ******* on *******, as well as the ********-taking that followed. He also sought warrants for two ******** officials. All of the subjects of the warrant requests have denied the accusations against them.

Last week, a U.N. commission concluded that there was credible evidence that members of ****** and other armed ************ groups committed war ******* on Oct. 7, including by ******** civilians, carrying out ********, and taking hostages. The commission also found evidence of ******** war *******, including the use of starvation of civilians as a ******* of war.

There are a lot of misperceptions about ******’s obligations under international law, so I thought I would use today’s column to explain those rules, how they apply to ******, and the surprising incentives they might create. ****** declined to comment for this article but in

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the group has claimed its fighters have a “religious and moral commitment” to avoid harm to civilians.

A quick note: I’m not going to write about *******’s alleged war ******* in this post. I have written about a number of those issues previously however, including the use of starvation as a ******* of war, and the legal questions raised by the ******** military’s ******* on the World Central Kitchen aid convoy.

****** isn’t a state. Does it still have to follow international law?

****** is an armed Islamist group that was founded in 1987, and has been designated as a ********** organization by the ******* States and the ********* Union. It won legislative elections in Gaza in 2006 and has held power there since 2007 without holding further elections. But it’s not a state government: Even countries that have recognized ************ statehood do not recognize ****** as its government.

There are two main things you need to know to understand ******’s obligations under international law. The first is that even though it is not a state government, it is still bound by the laws of war.

“The applicability of the law is triggered by the existence of an armed conflict,” said Janina Dill, co-director of the Oxford Institute for Ethics, Law, and Armed Conflict. Once conflict begins, every organized armed group participating is bound by international humanitarian law.

The second point is that those laws are universal, not reciprocal. Violations by one party to a conflict do not change the obligations of the other. Conversely, no military cause is so just that it allows its proponents to violate international humanitarian law in order to achieve it.

“The law of armed conflict has a very clear position,” said Marko Milanovic, a professor of public international law at the University of Reading in England, “which is that all parties have the same obligations regardless of how just their overall cause is, and regardless of whatever legitimacy or alleged illegitimacy of that entity.”

In addition, all individuals are subject to international ********* law regardless of whether they are affiliated with a government or nonstate armed group.

That equal application can seem outrageous to people who believe one side of a conflict has a just cause. After the I.C.C. prosecutor announced he was seeking warrants for leaders of ****** and *******, both ******* and ****** issued irate statements about being placed in the same category as their opponents in the war.

But the core purpose of those laws is to shield civilians, who are entitled to the same protections regardless of whether a state military or a nonstate armed group threatens them. So there is no number of Palestinians detained by ******* that would make it legal for ****** to take Israelis ********, just as there is no number of Israelis ******* on Oct. 7 that would make it legal for ******* to ***** ************ civilians indiscriminately or disproportionately.

If there are no cops to enforce international law, does it still matter?

When I write about these issues, I often receive messages from people who want to know why they should take international law seriously, given that there is no international equivalent of the FBI to arrest miscreants or enforce court judgments.

I can understand that sentiment: Given the broad consensus that ****** committed war *******, the inability of the international legal system to address those acts immediately can make it seem like an ineffective or even futile institution, particularly when compared to domestic legal systems. When a ******* is committed in a country with a functioning judicial system, we hope the perpetrator will be brought to justice — though of course that often doesn’t happen — and we know who has the power to do so. The lack of enforcement authority in the international system can be jarring.

But international law relies more on diplomacy and negotiation than top-down enforcement. If states do not voluntarily carry out arrest warrants or abide by the judgments of international courts, there is no central authority to force them to comply.

That doesn’t mean international law is pointless. On a basic level, the rules that govern conflict can act as a deterrent, creating standards for legitimacy that can become a source of external and internal pressures on armed groups.

Dill, who researches compliance with international law, has found that when militaries receive legal training, they often internalize those norms as a measure of their own professionalism. She said U.S. service members, for instance, often told her that they saw themselves as “professionals” who fought according to the law, which they believed distinguished them from their opponents, whom they described as terrorists and murderers.

And Tanisha Fazal, a political scientist at the University of Minnesota, has

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that armed groups trying to establish new independent states often complied with international humanitarian law as a way to “signal their capacity and willingness to be good citizens of the international community to which they seek admission.”

When it comes to ****** and the current conflict, it’s fair to say those incentives do not seem to be working.

************ statehood is one of ******’s goals. But the ************ Authority, not ******, is treated as Palestinians’ representative on the international stage, making that a crowded field in which to compete. ******, as a designated ********** organization, may see little prospect of international acceptance.

Nor does the group appear to believe that support from ordinary Palestinians depends on demonstrating compliance with international law. Its fighters filmed themselves carrying out the Oct. 7 attacks and ****** posted some of the material publicly, which suggests it may have anticipated gaining legitimacy as a result of the *********.

But while many Palestinians took to the streets as the attacks were unfolding on Oct. 7 to celebrate what they saw as a humiliation for an occupier, the boost to ******’s popularity seems to have proved temporary. Today, many in Gaza hold the group responsible for starting a war that has brought catastrophic harm to civilians.

Will ****** ever be held to account?

A

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in The Wall Street Journal suggested that Yahya Sinwar, the leader of ******, made what it called a “brutal calculation” that civilian deaths in Gaza would help the group by increasing pressure on *******. The article cited correspondence from Sinwar, including a message in which he reportedly described civilian losses as “necessary sacrifices.”

The New York Times has not seen these messages or been able to independently confirm them. But if ****** was deliberately putting civilians in harm’s way by, for instance, hiding fighters inside crowded ******** camps, schools or hospitals — as some evidence suggests — it would be in breach of international law, which forbids the use of

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, or the placement of military installations in densely populated

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That said, even if one side uses human shields, this does not exempt the other side from its obligations: Civilians remain entitled to protection even if one party to the conflict has already endangered them by violating the law.

For now, the gap between the apparent evidence of war ******* committed by ****** and the accountability of its leaders in a court of law can feel impossibly wide. But it may not always be so.

The I.C.C. has a

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of prosecuting members of nonstate armed groups and its arrest warrants do not expire. Even if the war ends, the potential ********* liability of ******’s leaders will not.

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#****** #Bound #International #Law

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