Accountability in the Israel/Hamas Conflict

By Richard Ashby Wilson

On May 20th, the Chief Prosecutor of the International Criminal Court, Karim Khan, announced he is applying for arrest warrants for three leaders of Hamas (Al-Masri, Haniyeh, Sinwar), Israeli Prime Miniter Netanyahu, and Defense Minister Gallant. Gallant and Netanyahu are charged with three war crimes, including starvation of civilians as a method of warfare, and four crimes against humanity including intentionally directing attacks against a civilian population and extermination. Hamas leaders Al-Masri, Haniyeh, Sinwar are charged with six war crimes, including murder and taking hostages, and five crimes against humanity, including rape, torture, and extermination.

The selection of political and military leaders with “command responsibility” rather than the material perpetrators is consistent with the ICC Statute which indicates that only the “most responsible” should be charged for mass crimes. That heads of state do not enjoy immunity for mass atrocities is now well-established in international law and was confirmed in the trials of Slobodan Milošević of Serbia, Augusto Pinochet of Chile, and Charles Taylor of Liberia.

The charges are cautiously and narrowly drawn, as there is prima facie evidence that Hamas operatives took hostages, and that Israeli forces indiscriminately attacked a civilian population. The indictments do not contain charges of genocide or incitement to genocide which are harder to prove because they require evidence of the specific intent to destroy a group in whole or in part. Of course, these could be added later.

The initial line of defense we can expect is that the defendants had no choice but to respond with violence to unreasonable provocation. This “necessity defense” is flawed for a number of reasons. Fir