Israel, Hamas and the laws of war: A primer
The UN is investigating whether war crimes have been committed by Israel and by Hamas.
“ It doesn’t matter whether you have a just cause, whether the war overall is legal,” Janina Dill says. “It doesn’t matter who’s worse, who started the war, the laws of war are the same for everybody.”
But what exactly qualifies as a war crime, genocide, or crime against humanity? And why are they so hard to prove – and to prevent?
“ It’s a pact with the devil, the law permits some morally problematic action in order to prevent even worse morally problematic actions, to put it kind of bluntly,” Dill adds.
Today, On Point: Israel, Hamas and the laws of war: A primer.
Janina Dill, chair in global security at Oxford University’s School of Government. Co-director of the Oxford Institute for Ethics, Law, and Armed Conflict.
Michael Bryant, professor of history and legal studies at Bryant University. Vice president of the Bornstein Holocaust Education Center. Author of“A World History of War Crimes: From Antiquity to the Present.”
Ben Ferencz, former chief prosecutor in the Nuremberg Trials.
Motti Inbari, religious scholar at UNC Pembroke.
GILAD ERDAN: What we are witnessing are war crimes, blatant barbaric war crimes, slaughtering civilians, abusing hostages. There are no words to describe such savagery.
(COLLEGE PROTEST CHANT)
COLLEGE STUDENT: That’s what they are. They are resistance.
STUDENT: Do you think Canada is a colonialist country too?
STUDENT: Everything that they do is justified.
BEN SHAPIRO: Hamas is not like you. They don’t think like you. They don’t have the same priorities as you. It is a genocidal group.
STUDENT: The horror has reached an unimaginable level.
JONATHAN CONRICUS: Hamas cowards as they are hiding all of their military infrastructure beneath the civilians. That is wrong. That is a war crime, to use civilians as human shield.
CRAIG MOKHIBER: The hardest part of proving genocide has been proven for us with these very open statements of genocidal intent by Israeli officials, their intention not to distinguish between civilians and combatants and to carry out the kinds of wholesale slaughter that we are witnessing in Gaza.
MARC LAMONT HILL: Targeting civilians and taking hostages are war crimes. How can you justify attacking civilian targets?
OSAMA HAMDAN: I have to say that this is the story from the Israeli side. This is a story, fake story. Used to kill more Palestinians, but this is that.
HILL: But the question was how do you justify attacking civilian targets? That was the actual question.
HAMDAN: You’re asking the wrong question.
HILL: Look, the question was how can you justify attacking civilian targets?
HAMDAN: This is a wrong question. And I’m not going to the same game of the Israelis.
RABBI SHMULEY BOTEACH: He would deny the Jewish people the only dignity left to us, that we were victims of genocide. And he would say that we are the Nazis. We are the Gestapo, for simply wanting to defend ourselves.
CENK UYGER: I didn’t say any of that. Can you stop lying.
BOTEACH: Against the brutality and of the savagery of Hamas. Now he is a holocaust denier because he is saying that the Jews are engaged in a genocide of the Palestinians.
UYGER: Nonsense. Total utter lie. Can you please stop this liar.
HILL: Isn’t the collective punishment of all Gazans also by definition a war crime?
DANNY AYALON: Not really, because the situation is very clear. The problem with the Hamas is that they’re committing a double war crime, because they are targeting honest civilians. We told the Gazan people to clear the area temporarily, we can go and take Hamas out. Hamas has turned Gaza into an enemy state.
EMILY AUSTIN: She’s the same woman who said every Zionist before they die should hear pop, before they die. So she probably agrees with the massacre. So why would she condemn them?
NERDEEN KISWANI: I think we’re, the media is part of manufacturing consent.
AUSTIN: We’re talking about you.
KISWANI: I’m speaking here and I don’t, I’m not interested in speaking to genocide deniers.
MEGHNA CHAKRABARTI: Genocide, war crimes against humanity. Words uttered frequently and with passion.
But do those hurling the accusations know exactly what they mean in the eyes of the law? Or are the angry debates a result of international law’s failure to adequately prosecute and deter 70 years of violence and civilian bloodshed around the world? Those are urgent questions for today. So we will begin by going back to what was the start of the creation of modern war crimes law, World War II, and the Nuremberg Trials.
It was there that a young Jewish American lawyer, barely 27 years old, gave clear shape to the concept of crimes against humanity.
BEN FERENCZ (ARCHIVAL TAPE): We are now ready to hear the presentation by the prosecution.
BEN FERENCZ: This was the tragic fulfillment of a program of intolerance and arrogance.
FERENCZ: My name is Benjamin Ferencz. When I was 27 years old, which was a long time ago, I was the chief prosecutor for the United States at one of the subsequent Nuremberg trials.
FERENCZ (ARCHIVAL TAPE): The case we present is a plea of humanity to law.
FERENCZ: Which tried and convicted 22 high ranking Nazis of murdering in cold blood over a million people, mostly Jews and mostly in the Ukraine.
FERENCZ (ARCHIVAL TAPE): We shall establish, beyond the realm of doubt, facts which, before the dark decade of the Third Reich, would have seemed incredible.
CHAKRABARTI: Benjamin Ferencz died in April of this year. He was 103. He was also the last living prosecutor of the Nuremberg Trials. Almost exactly one year before his death, April 2022, Ferencz gave us one of the final interviews of his life. We talked to him then about civilian deaths and allegations of war crimes in the context of the war in Ukraine.
Ferencz took us back to 1947 and described how the concept of crimes against humanity crystallized at Nuremberg.
FERENCZ: I found, personally, I found the records of the special extermination squads known as Einsatzgruppen in German. Their assignment was to kill all the Jews in Europe.
FERENCZ (ARCHIVAL TAPE): Thoughts will show that the slaughter committed by these defendants was dictated not by military necessity, but by that supreme perversion of thought, the Nazi theory of the master race.
FERENCZ: They sent a daily report back to the headquarters in Berlin, listing which units, A, B, C, or D, of the Einsatzgruppen were located where in the Ukraine, for example, and how many people they had killed. When I totaled a million people murdered on a little adding machine, I went to Nuremberg from Berlin, where my headquarters was then located, and said we have to put on a new trial.
They said,” We can’t. The lawyers have already all been assigned. The Pentagon is not enthusiastic about this. We can’t get approval.” I said, “You can’t let these people go. I have in my hand here a million people murdered. They’re not going to let those bastards get off.” And he said, “Can you do it in addition to your other work?”
And I said, “Sure.” He said, “Okay, you do it.” I ended up there as my first case. And you said it takes a long time. It took me a long time. Two days. Two days, and I arrested the prosecutor’s case, and I convicted all of them.
FERENCZ (ARCHIVAL TAPE): We shall show that these deeds of men in uniform were the methodical execution of long-range plans to destroy ethnic, national, political, and religious groups which stood condemned in the Nazi mind. Genocide, the extermination of whole categories of human beings, was a foremost instrument of the Nazi doctrine.
FERENCZ: That was what we were trying to do. We were trying to bring justice in place of vengeance, because vengeance just begets more vengeance. And I made a specific point. I said, the opening statement, vengeance is not our goal.
FERENCZ (ARCHIVAL TAPE): Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action, man’s right to live in peace and dignity, regardless of his race or creed.
CHAKRABARTI: The trial of the Einsatzgruppen at Nuremberg was Ferencz’s very first case as a practicing lawyer. It was the largest murder trial in history.
All of the defendants, 22 Nazi officials, including six generals, were convicted of war crimes and crimes against humanity. Thirteen were sentenced to death and four were ultimately executed. In a 2018 interview, Ferencz said, quote:
“My problem as the prosecutor was to ask, ‘What do I ask for? Do I ask to sentence them all to death?’ 22 defendants against a million people murdered? I said there’s no way of balancing enough, of doing justice there. But if I could get them to create a more humane world, using this as an example, that would be worthwhile,” end quote.
And it was an example. The concept of crimes against humanity began to emerge at the Nuremberg Trials, laying the groundwork for the 1948 UN Treaty on the Prevention and Punishment of the Crime of Genocide.
It also led to the creation of the International Criminal Court in The Hague, which came into force in 2002. The United States, Israel and more than 20 other nations have never joined the ICC. Palestinian leaders recognized the court in 2009. Ferencz remained a towering figure in international human rights law.
He was invited to give the closing statement in the ICC’s very first trial, in 2009. In the case of Thomas Lubanga Dyilo, he was accused of the forcible conscription and abuse of child soldiers in Congo. In his closing statement, Ferencz, then 92 years old, repeated purposefully and exactly the words he’d used at Nuremberg.
FERENCZ (ARCHIVAL TAPE): Once again, the case we present is a plea of humanity to law. The hope of humankind, that compassion and compromise may replace the cruel and senseless violence of armed conflict. Vengeance begets vengeance. The illegal use of armed force, which is the soil from which all human rights violations grow, must be condemned as a crime against humanity.
International disputes must be resolved, not by armed force, but by peaceful means only. Let the voice and the verdict of this esteemed global court now speak for the awakened conscience of the world.
CHAKRABARTI: And, also, as he’d done in Nuremberg, at the Lubanga trial, Ferencz urged the International Criminal Court never to drift from its duty to deter future war crimes.
FERENCZ (ARCHIVAL TAPE): Punishing perpetrators was recognized as a legal obligation. What makes this court so distinctive is its primary goal to deter crimes before they take place. By letting wrongdoers know in advance that they will be called to account by an impartial international criminal court. The law can no longer be silent, but must instead be heard and enforced to protect the fundamental rights of people everywhere.
CHAKRABARTI: When Ben Ferencz spoke with us last year, age 102, he had not lost faith in the power of international human rights laws, even as he acknowledged successful prosecutions are exceedingly difficult and exceedingly rare.
FERENCZ: But we can’t be defeated by the fact that there are some people who don’t believe in the rule of law. They believe in power, and they want to exercise it whenever they think it’s in their interest to do and they’re very sizable number of people. So it’s not something where everybody is of one mind. There are some people who believe in the rule of force. The only hope, really, is law, not war. The three words, law, not war.
CHAKRABARTI: Benjamin Ferencz. He was the last living prosecutor from the Nuremberg trials, and he gave us one of his final interviews in the spring of last year. Ferencz died this past April at the age of 103. In the context of the kinds of wars and conflicts we’re seeing now, specifically between Israel and Hamas, what are the international laws of war and human rights that determine when a war crime or genocide has been committed, and why is it so hard to bring alleged criminals to trial? We’ll hear from two experts on those critical questions when we come back.
This article was originally published on WBUR.org.
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