This legal opinion was prepared by the firm of Asserson. It is evident from the below, that if Hamas were a recognized state entity, its actions would undoubtedly be considered war crimes. They are certainly crimes against humanity.
RE Prosecution against Hamas for War Crimes
DATE 29 January 2009
I Purpose of this Note
In this Note I look into a possible prosecution against Ḥarakat al-Muqawamat al-Islamiyyah (“Hamas”) for war crimes it has committed.
I deal with the following questions which arise:
a) What is the status of Hamas;
b) What is the status of Gaza;
c) Which law would apply to Hamas; and
d) Which jurisdiction would apply.
II The status of Hamas
Hamas was created in 1987 and means Islamic Resistance Movement. In January 2006 Hamas won the Palestine parliamentary elections and is the de facto government of Gaza. However Hamas is not recognised de facto or de jure by Israel.
Instead Hamas is described as a terrorist organisation by Israel, Canada, the European Union, Japan and the United States. The organisation is also banned in Jordan. Australia and the United Kingdom list the military wing of Hamas the Izz ad-Din al-Qassam Brigades as a terrorist organisation.
Hamas is officially listed as a terrorist organisation by the United States and the European Union (OJ L340/64) and they have implemented restrictive measures against Hamas on an international level.
Rather than one international convention there are a number of international conventions which deal with different aspects of terrorism.
Hamas receives support, logistic, funding and arms from Syria and Iran. It may be an option to consider whether these State acts of supporting a terrorist organisation can be prosecuted in an international forum.
The obvious defence for Hamas to try to argue is that it is not a State and is not bound by international law.
III The status of Gaza
I have not spent a lot of time researching the legal status of Gaza but in international law its status is unclear. Gaza has been described variously as having the status of one of the following:
a) sovereign territory of a state of Palestine;
b) territory of the Mandate of Palestine with no sovereign;
c) sovereign territory of the State of Israel;
d) territory with no sovereign;
e) territory subject to a claim of self-determination by one of the Arab nationalities (a separate question arises as to whether there is such a thing as a Palestinian people);
f) territory subject to self-determination by the Jewish people; and
g) territory somehow under Israeli occupation.
Under the principle of self defence set out in the UN Charter Israel claims it has the right to use force to defend itself against attacks from Gaza. The two basic principles which apply to self defence are that it not be indiscriminate and disproportionate.
IV What is a War Crime
There are a number of separate international conventions which apply to humanitarian law, provide a definition of a war crime and apply to a terrorist organisation. I set out some of these Conventions below.
Hamas has fired rockets targeting the civilian population of S'derot and the western Negev of Israel for many years.
Palestinian rocket fire does not differentiate between Israeli civilians or soldiers, between residential homes and army bases. Hamas rockets have struck at least nine Israeli schools, three Israeli synagogues and damaged many Israeli homes, playgrounds, and residential neighborhoods. One million Israelis living in the south are within the range of Hamas rocket fire.
A high percentage of S'derot children suffer from PTSD symptoms. In S'derot, terror has become an entrenched part of daily life. The reality into which S'derot children are born includes waking up to the sound of the rocket warning system at 4 am, running to a shelter in a time limit of 5 seconds, seeing the homes of neighbours and families damaged, and watching residents convulsing in shock.
Hamas blatant disregard for human life extends to the Palestinian people as well. It uses mosques to store weapons and uses Palestinian population centers to battle. Hamas leaders used a Gaza hospital basement because they know Israel would not target it, due to the patients in the upper floors.
Hamas have committed the following activities amongst others:
a) kidnapped a soldier;
b) denied that kidnapped soldier access to the ICRC;
c) used civilians a shields;
d) booby-trapped residential homes;
e) hidden in the basement of a hospital;
f) disguised themselves as doctors and nurses;
g) disguised themselves in the uniform of Israeli soldiers;
h) hijacked ambulances;
i) fired missiles from homes, schools, mosques and the UNWRA compound;
j) built tunnels with the intent of kidnapping Israeli soldiers;
k) stolen humanitarian supplies intended for the civilian population;
l) used humanitarian supplies to light tunnels for the smuggling of weapons; and
m) used children under 15 to participate in hostilities.
The question is whether the actions of Hamas-both against Israeli and Palestinian civilians are defined in the legal term “war crime”.
Definition of a war crime
There are a number of international conventions which apply to humanitarian law and provide a definition of a war crime.
The Geneva Conventions
The basic definition of a war crime is set out in Article 147 of the Fourth Geneva Convention. It defines a war crime as:
"Wilful killing, torture or inhuman treatment, including... wilfully causing great suffering or serious injury to body or health ...taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."
The International Committee of the Red Cross elaborated on the Geneva Conventions, stating that:
“The parties to conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked.” (ICRC website)
The Statute of the International Criminal Court
Crimes against Humanity
Pursuant to Article 7 of the Rome Statute crimes against humanity include murder and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Crimes against humanity are defined as:
“acts …committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”
“Attack directed against any civilian population” is defined and “means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”
Pursuant to Article 8 the International Criminal Court ("ICC") has jurisdiction “in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”
In the ICC, war crimes are defined as “Grave breaches of the Geneva Conventions of 12 August 1949, namely any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention as follows:
(i) Wilful killing;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of a fair and regular trial;
(viii) Taking of hostages.
A distinction is made between the laws applicable in an armed conflict of an international character and not of an international character. It is arguable that the laws applicable to Hamas are the laws of an armed conflict not of an international character.
“Article 8(2)(b) Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.
(ii) Intentionally directing attacks against civilian objects, that is objects which are not military objects.
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in humanitarian assistance… as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.
(iv) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.
(v) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.
“Article 8(2)(c) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely any of the following acts - Intentionally directing attacks against the civil population as such or against individual civilians not taking direct part in hostilities.”
The following international conventions amongst others may also apply to the actions of Hamas and perhaps also Iran and Syria:
a) The UN General Assembly in 1968 adopted a Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity.
b) International Convention for the Suppression of the Financing of Terrorism.
c) International Convention for the Suppression of Terrorist Bombings.
d) UN Security Council Regulation 1566 adopted by authority of Chapter VII of the UN Charter which denies providing a safe haven.
e) UN Security Council Resolution 1373 which denies providing a safe haven.
f) Convention on the Prevention and Punishment of Genocide.
In light of the above the actions of Hamas seem to fit into the definition of a war rime.
The next question is where could a prosecution against Hamas be brought?
V Jurisdiction over Hamas for its War Crimes
A Universal Jurisdiction
Genocide, crimes against humanity, war crimes, torture, extrajudicial executions and enforced disappearances are crimes under international law.
Under the principle of universal jurisdiction, if a State enacts appropriate national legislation it has the inherent power to investigate and prosecute these crimes before its national courts.
Since the end of the Second World War, more than 15 countries have exercised universal jurisdiction in investigations or prosecutions of persons suspected of crimes under international law, including Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, the Netherlands, Norway, Senegal, Spain, the United Kingdom and the United States. Others, such as Mexico, have extradited persons to other countries for prosecution based on universal jurisdiction.
The 1949 Geneva Conventions, but not the 1977 additional protocols, have been signed by Israel, Iran and Syria. Under the principle of universal jurisdiction any country that is a signatory to the Geneva Conventions can try to prosecute individuals in Hamas who are suspected of committing war crimes.
The International Criminal Court was set up by the Rome Statute of the International Court. Israel, Iran and Syria have not signed the Rome Statute which entered into force on 1 July 2002. The ICC is independent of the UN and has “jurisdiction over persons for the most serious crimes of international concern.”
The jurisdiction of the ICC is based on "complementarity", which allows national courts the first opportunity to investigate or prosecute. If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute.
As set out above the ICC has jurisdiction over genocide, crimes against humanity and war crimes. The ICC can prosecute terrorist acts only if they fall within these categories.
Proceedings before the ICC may be initiated by a State Party, the Prosecutor on his own volition or the United Nations Security Council.
It seems rather unlikely, on a practical level, that a prosecution would be brought against Hamas for war crimes in the ICC, as the ICC prosecutor would have to decide to bring the case himself.
The ICC will not decide the matter of compensation based on principles of damages. However the Trust Fund for Victims can act for the benefit of victims at various stages in the prosecution of ICC crimes.
B Private Prosecution against Hamas
England & Wales
The UK is a signatory of the 1949 Geneva Conventions, the 1977 protocols and has ratified the Rome Statute of the International Criminal Court.
In England & Wales the right to bring a private prosecution (with certain exceptions) was included in section 6 of the Prosecution of Offences Act 1985, which set up the Crown Prosecution Service (“CPS”).
The CPS will take over and continue a prosecution when the case in an important or difficult one that merits a public prosecution. However, the case must pass the two tests in the Code for Crown Prosecutors namely that there is sufficient evidence and a prosecution is in the public interest.
Pursuant to the Geneva Conventions Act 1957 as amended in 1995 and 2001, the UK has universal jurisdiction to arrest and try suspected perpetrators of grave breaches of the Fourth Geneva Convention 1949. Section 1 as amended of the Geneva Conventions Act provides:
“1(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence.” [emphasis added]
1(1A) …(a) a grave breach of a scheduled convention is anything referred to as a grave breach of the convention in the relevant Article, that is to say…
Article 147 of the Fourth Geneva Convention provides that:
“Grave breaches … shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” [emphasis added].
Section 1(2)of the Geneva Conventions Act further provides:
“ In the case of an offence under this section committed outside the United Kingdom, a person may be proceeded against, indicted, tried and punished therefore in any place in the United Kingdom as if the offence had been committed in that place, and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that place.”> [emphasis added]
Section 1A of the Geneva Conventions Act provides that:
“1A The following provisions apply in relation to offences under section 1 of this Act.
(2) The offence is triable only on indictment.
(3) Proceedings for an offence shall not be instituted—
(a )in England and Wales, except by or with the consent of the Attorney General;[emphasis added]
(4) If the offence is not committed in the United Kingdom—
(a) proceedings may be taken, and
(b) the offence may for incidental purposes be treated as having been committed,
in any place in the United Kingdom.
(5) A person convicted of an offence involving murder shall be dealt with as for an offence of murder.
In this subsection “murder" means the killing of a person in such circumstances as would constitute murder if committed in the part of the United Kingdom in which the proceedings are brought.
(6) In any other case a person convicted of an offence is liable to imprisonment for a term not exceeding 30 years.”
The consent of the Attorney General would therefore be required to bring a private prosecution in England & Wales against Hamas for war crimes which are committed outside the United Kingdom and which are in breach of the Fourth Geneva Convention. It would seem that the possibility of the UK Attorney General agreeing to bring an action would be quite limited.
In Scotland, it is permitted for a private individual to prosecute at his own cost and risk, but the private party cannot do so without the agreement of the Lord Advocate who is in charge of public prosecutions.
A private prosecution requires "Criminal Letters" from the High Court of Justiciary. However the Lord Advocate cannot capriciously or oppressively refuse to give his consent. If the private party can show that the Lord Advocate has refused to give his consent, either on improper grounds or from wrong motives, the High Court of Justiciary will intervene to prevent the injustice.
Scotland has enacted the International Criminal Court (Scotland) Act 2001 but it applies only to conduct “by a United Kingdom national or a United Kingdom resident”. Accordingly the legislation in Scotland would not apply to Hamas.
In 1993, Belgium enacted a law allowing prosecutions based on universal jurisdiction. However, that law was repealed in 2003. Now Belgium will only have jurisdiction over international crimes if the accused is Belgian or has his primary residence in Belgium, if the victim is Belgian or has lived in Belgium for at least three years at the time the crimes were committed; or if Belgium is required by treaty to exercise jurisdiction over the case.
The new law also considerably reduces victims' ability to obtain direct access to the courts - unless the accused is Belgian or has his primary residence in Belgium and the decision whether or not to proceed with any complaint rests entirely with the state prosecutor. Belgium has thus restricted the reach of universal jurisdiction in its courts by adopting a law similar to or more restrictive than most European countries.
Domestic Israeli Law
In two domestic trials, Israel prosecuted Eichmann and Demjanjuk pursuant to the Israeli Nazi and Nazi Collaborators (Punishment) Law 1950. The trials were not based on universal jurisdiction. However, because war crimes and crimes against humanity were included in these cases, more research into Israeli law may be required into the parallels between universal jurisdiction and these domestic Israeli trials.
It seems quite likely however, that because Hamas is not recognised by Israel, there may be significant political and legal obstacles to overcome in trying to bring a prosecution or civil suit against Hamas in Israel.
I have not spent a lot of time researching into Israeli law. Perhaps Hamas can be prosecuted domestically in Israel for war crimes, terrorism, or causing injury and damage to Israeli citizens and property (which may also be a civil claim). If requested more research can be carried out into Israeli law.
A war crime is defined pursuant to the Geneva Conventions. There is a more extensive definition of a war crime in the Rome Statute of the ICC. The question is whether these Conventions can be made to apply to the actions of Hamas. It should be noted that Israel has signed the 1949 Fourth Geneva Convention but is not a State Party to the ICC.
Consideration should be given to alerting the prosecutor of the ICC about the activities of Hamas, Iran and Syria for war crimes under the Fourth Geneva Convention and under anti-terrorist conventions. It is highly unlikely that a tribunal would be set up by the ICC to investigate and try the war crimes committed by Hamas as the ICC does not apply to Hamas.
Hamas is not a signatory of the Fourth Geneva Convention. Before any prosecution could be brought against Hamas it would be necessary to argue that the Fourth Geneva convention applies to Hamas in some way. If this obstacle was overcome the the consent of the Attorney General in England & Wales would still be needed to bringa a private prosecution against Hamas for a grave breach of the Fourth Geneva Convention pursuant to the Geneva Conventions Act.
The same obstacles would apply in Israel. Depending on the applicability of universal jurisdiction in Israel and political considerations it may be possible to bring a prosecution in Israel for war crimes against the leaders of Hamas for contravention of the Fourth Geneva Convention.
Although Hamas is the de facto government of Gaza it has no status in international law and is not recognised by Israel. More research is required to see whether it is possible to bring a civil suit against Hamas in Israel for injury and damage to Israeli citizens and property.
In any event, it seems unlikely that Israel would kidnap Hamas leaders in the same way that they did with respect to Eichmann. The current policy may be for targeted killings, as it may be too dangerous, too difficult or too politically problematic to kidnap the leaders of Hamas at this time. We also believe it unlikely that Israel would allow a prosecution/civil suit to proceed in any event without having the Hamas leaders in custody.
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