How an international trial for Hamas should be conducted - opinion

In these brief lines, I aim to outline how an international trial for the terrorist organization Hamas should be conducted according to the Rome Statute, the founding treaty of the International Criminal Court (ICC) in The Hague – if it were not influenced by political considerations. Article 5 of the Rome Statute grants the court jurisdiction over four serious crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Articles 6, 7, and 8 of the Statute define each of these crimes.

Article 6: Genocide is defined as actions committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, including killing or causing serious bodily or mental harm to members of the group. By this definition, the actions of Hamas on October 7, 2023, which included intentional killing and inflicting severe physical and mental harm on Israeli civilians, qualify as genocide.

Article 7: Crimes against humanity include acts such as murder, unlawful imprisonment, torture, rape, and forced pregnancy, committed as part of a widespread or systematic attack against any civilian population. The atrocities committed by Hamas, which involved the murder of civilians, torture, rape, and taking hostages, clearly fall under this category.

Article 8: War crimes are defined as grave breaches of the laws and customs applicable in international armed conflict, including willful killing, unlawful destruction of property, taking hostages, and intentionally directing attacks against civilian populations. Hamas’s actions, which included firing thousands of rockets at civilian areas, killing civilians, looting property, and taking hostages, are clear examples of war crimes.

Article 5 of the Rome Statute also defines the crime of aggression as the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, in a manner inconsistent with the Charter of the United Nations. The attack by Hamas on Israel on October 7, 2023, is a clear case of such use of force.

If the ICC were an objective and professional body, it would try Hamas for each of these crimes. The UN should declare Hamas a terrorist organization and place it alongside groups like ISIS and Al-Qaeda, as specified in UN Resolution 1566 and Security Council Resolution 1373, adopted on September 28, 2001, following the 9/11 attacks in the United States. These resolutions called for all UN member states to cooperate in the fight against terrorism, which threatens global security and peace, and to freeze terrorist assets within their territories.

The Hamas charter

The Hamas Charter is an antisemitic document calling for the destruction of the State of Israel and defining its land as an Islamic endowment, which every Muslim must fight to reclaim. Legally, the Hamas Charter challenges the League of Nations’ decision of July 24, 1922, declaring the establishment of the Jewish state. The charter rejects all international arrangements or laws, stating that “Allah is its goal, the Quran its constitution, jihad its path, and death for the sake of Allah is the highest of its aspirations.” 

It describes Jews using well-known antisemitic tropes, such as “war profiteers” who allegedly control global media, create revolutions, and cause world wars to dominate the world. These statements are reminiscent of Nazi rhetoric before World War II and the Holocaust. Article 7 of the Hamas Charter calls on every Muslim to kill Jews, even those “hiding behind stones and trees.”

Israel, which was unexpectedly attacked, has the right to “self-defense” as defined in Article 51 of the UN Charter. This right includes conditions for the use of force: “necessity” and “proportionality,” and subsequently adhering to the laws of war. There is no need to analyze necessity, and regarding proportionality, considering that Hamas fired thousands of rockets at civilian populations from within civilian structures like homes, schools, mosques, and UN facilities, Israel had no choice but to operate in civilian areas.

Nevertheless, the IDF acts with due caution, warning civilians to evacuate combat zones. In the early days of the ground offensive, thousands of messages were sent to Gazan residents to leave the northern part of the Gaza Strip. The IDF opened evacuation routes for thousands of residents and protected them from Hamas’s intentions to harm them. It provided food and medical supplies and allowed international organizations to deliver aid, even knowing that Hamas would seize these supplies.

When forced to operate in medical facilities that Hamas had turned into military strongholds, such as Shifa Hospital, the IDF warned the staff and provided medicines and incubators for premature babies.

GIVEN THE stipulations in Article 19 of the Rome Statute, when deviations occurred and civilians were harmed, the IDF conducted investigations as required by this article and reported the findings to relevant international bodies. 

Regarding the blockade Israel imposed on Gaza as a cause for the conflict, this argument should be rejected for several reasons: Gaza also shares a border with Egypt, and this complaint is not raised against Egypt. During the Oslo Accords, a seaport was planned and an airport was built in Rafah. However, during former PA chairman Yasser Arafat’s first flight, advanced missiles were found on his plane.

The behavior and ambition of Hamas leaders to destroy Israel are the reasons for the blockade. Israel has no choice but to monitor what enters and leaves if it wishes to survive. The real blockade in Gaza is the deprivation of normal life for Gaza residents and the allocation of enormous funds for tunnels and weapons instead of civilian needs. With these funds, Gaza could have been a flourishing tourist area for the benefit of its residents, eliminating the need for a blockade.

I accuse Hamas of war crimes, of crimes against humanity, genocide, and of depriving Gaza residents of a normal life.

The writer, CEO of Ashkelon Academic College, participated earlier this month as one of the judges in a mock trial against Hamas for its October 7 crimes. The trial was led by the municipality, Dr. Avi Omer, founder of the Excellence Forum, and the Education Ministry.