The war situation after Hamas’s attack on Israel and the Israeli army’s retaliatory actions in Gaza is getting worse with time, and at the same time, Hamas is constantly accusing the Israeli authorities of war crimes.
In the attack on Israel by Hamas, 1400 people were killed and 220 hostages were taken.
Violation of international laws designed to protect civilians during any armed conflict is called a war crime. The laws of war are enshrined in various international treaties, including the Geneva Conventions of 1949 and the Hague Conventions of 1899 and 1907.
Parties are bound by international humanitarian law to protect the lives of civilians and minimize the impact of war on them.
But one thing is certain that calling a country or its leader guilty of a war crime does not make him a real criminal.
Regardless of the extent to which these laws are being enforced, it is important to know what war crimes are, what the international laws are, how they apply, and how the perpetrators are punished. What is it?
What is the International Criminal Court (ICC)?
The International Criminal Court (ICC) was established in 1998 in The Hague, Netherlands. It is an independent institution where individuals charged with the most serious crimes against the international community are tried.
The agency investigates war crimes, genocide, crimes against humanity and aggression during wartime.
Any country can prosecute the accused in its own courts. The ICC takes action when a country does not want to take action and this court is the last resort.
What actions are considered war crimes?
Explaining war crimes, international law expert Ahmar Bilal Sufi says that the relevant treaty regarding war crimes is the Rome Statute under which the International Criminal Court was established, its articles 6, 7 and 8 clearly defines war crimes.
While talking to the BBC, he said that the general interpretation of war crimes was done during various cases in international forums or tribunals or criminal courts created at different times, which were later included in the ICC Statute.
Examples of this are numerous, such as the Nuremberg Trials and tribunals that identified and interpreted war crimes that were later given specific and identifiable language in the Rome Statute. It also details whether or not actions related to the crimes to be identified form part of the crime, such as the war crimes tribunals of Yugoslavia and Rwanda.
However, it should be remembered that international law is different from the law of any country in which crimes are recorded and based on the written language it is decided whether a crime has been committed or not.
According to Ahmar Bilal, this is not the case at all in international law. Here, war crimes are interpreted and its features are identified after considering the treaty, customs, judicial decisions, practices of international organizations is done.
Article 6 – Genocide
According to international law, the killing of people belonging to a particular nationality, race or religious group with the intention of destroying them in whole or in part is called ‘genocide’.
The main point of genocide is that the crime is being committed with the intention and intent not to harm a particular group but to wipe it out.
The United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948, provides for the prevention of this crime and punishment for those who commit it.
In 1998, the International Criminal Tribunal for Rwanda also defined other actions that could amount to genocide.
These actions include causing serious injury to the physical and mental identity of members of a particular group, creating conditions that lead to the total or partial destruction of that group, taking measures to prevent the birth of children in that group, children of a group. Includes forcible transfer to another group.
The definition of genocide in international law was first used during the Nuremberg trials against the German Nazis. So far, 153 countries, including Israel and Palestine, have signed this UN convention.
However, not all countries have signed the ‘Rome Statute’ under which the International Criminal Court was established, which has the authority to judge such crimes. They include America, China, Russia and Israel.
Acts against the Yazidis in Wilokast, Rwanda, Cambodia, Bosnia, Iraq, and the Rohingya in Myanmar are cited as examples of genocide in recent history.
Article 7 – War crimes
Under international law, civilians who are not directly involved in war are protected to limit the damage and effects of war.
Violence or attacks on civilians are considered crimes. Similarly, weapons that could affect civilians such as landmines, chemical weapons are also prohibited.
International law requires care for the wounded and sick, including wounded soldiers. Taking someone hostage or eviction is also a war crime.
According to the 1950 Geneva Convention, children and cultural heritage are given special protection. The International Criminal Court also has the authority to deal with such crimes.
Article 8 – Crimes against humanity
War crimes can only be committed during wartime, but crimes against humanity can also occur during peacetime, including crimes against civilians such as torture, enforced disappearance, murder, deportation or sexual violence and rape.
According to experts in war crimes law, the key point is that these crimes were committed as a systematic attack against civilians.
For example, if someone is tortured by the police in a country, the case will fall under the International Convention against Torture because it is an incident. However, if violence is committed against a large population in a systematic manner, it can be considered a crime against humanity.
Similarly, if an armed group infiltrates the general population and loots, kidnaps people and rapes women, it will also be a crime against humanity.
Where is attack allowed in any war and what is absolutely forbidden?
According to Ahmar Bilal Sufi, two or three things are fixed in any war: one of them is that no side in any war can target civilians by using force.
They say that in olden times there was some scope in this regard, but now in war or unarmed conflict or internal rebellions of the country even if your country is occupied by someone else and you resist the occupying forces under the right of self-defense. Even if you want to do it, even then you are definitely not allowed to attack the normal veins.
Giving an example, he says that militants fighting against India in Kashmir or Hamas are not allowed to attack civilians.
Therefore, in any war, conflict or insurgency, both sides are allowed to attack only military targets, military property, military installations, and people wearing military uniform are also allowed to attack. He immediately gets the rights of ‘Protected Person’.
According to Ahmar Bilal Sufi, civilian population, civilian property are all part of the ‘protected zone’ and violation of this protection is a war crime.
Does self-defense or the right of defense allow you to attack civilians?
Following the attacks on civilian facilities in Gaza (in which civilians were killed), there have been explanations from Israel that they targeted tunnels used by Hamas (which could be called military targets) under these buildings. ) was targeting. So how will it be proved that there were really Hamas tunnels under these hospitals or mosques?
In response to this, Ahmar Bilal Sufi says that in this war, Israel is repeatedly repeating the right of self-defense, but self-defence or the right of self-defense does not give you open permission to attack civilians. If they believe Hamas is using civilian property for security, the state still has two options: law enforcement and another war.
Under law enforcement, a state requires another state or an authority there to arrest wanted persons and access tunnels in order to close them.
If that authority rejects the request and the matter is not resolved legally, then the next step is to close the tunnels at one point. For example, if there is a tunnel running under a road, you can attack the road and disable it, but eight consecutive civilian buildings housing civilians cannot be destroyed on that basis, and this action is not allowed. This is called violation of the principle of equality.
Ahmar Bilal says that the excuse of self-defense does not allow you to violate international law.
War Crimes Investigation Procedures
Ahmar Bilal Sufi points out that some crimes are called ‘strict liability crimes’, meaning that if they happened in plain sight, further proof is required only if you want to convict a single individual. are
Giving an example of this, he says that for example, tragedies like the death of civilians speak for themselves, that’s why they are called strict liability crimes because what happened is visible.
He points out that if it is on record that a party has attacked civilians or civilian populations or civilian infrastructure (eg hospitals, places of worship or water tanks etc.) then in such a situation you can only further It has to be proven that this actually happened and this can be done electronically or through GIS technology.
Also, the media can play the role of an observer in which the incident is recorded on camera and there can be eyewitnesses to the incident.
But the biggest question here is how to punish the criminal?
How are the perpetrators of war crimes punished?
The ICC can open an investigation against any individual or state, from heads of state to generals, who have violated its mandate.
What is the procedure for taking or punishing the perpetrator to the ICC when it is proven that a war crime has been committed?
Ahmar Bilal Sufi says in this regard that ‘punishment is given to a single person (eg a battalion commander or a general) the state is not expected to allow irresponsible actions because the responsibility rests with the state. ‘
According to Ahmar Bilal Sufi, if a state allows such actions, recognizes them and makes its state policy, then that state is violating international laws.
In this case, states around the world will have to rally against that state, by cutting off diplomatic relations and through sanctions, even using force if necessary, to tell it that it is wrong and to stop it from these actions. will have.
According to Ahmar Bilal Sufi, if despite all these measures, that state continues to violate international laws, other countries can decide to send joint troops there to prevent this country from committing war crimes and civilians. to whatever extent one has to go to protect Here the principle of R2P i.e. ‘Responsibility to Protect’ is applied which has been approved by the Secretary of the United Nations.
Theoretically, such a big action, such as sending an army to stop genocide in another country, should be in the mandate of the United Nations, but if the UN does not do this, and Israel is not afraid of the world’s reaction, without worrying about it. If it is not coming, maybe a few countries will start thinking about doing it themselves (a few days ago, the rocket fired by Yemen was intercepted by the American ship), but it will pose a threat to world peace.
Ahmar Bilal Sufi says that Hamas attacked Israel first, which can be considered as their right to resist, but the principles of resistance are also set and such attacks should be limited to military installations only. There is a violation of the rules.
They say that at first Hamas violated these laws, but then Israel, which is not a non-state actor and claims to be an internationally responsible state, violated international laws on its behalf. There is an impression that the state itself has authorized attacks on civilians, civilian populations and civilian installations, using indiscriminate force.
According to Ahmar Bilal Sufi, there is a consensus on this international law for many centuries that civilians will not be targeted and protected in any internal or international armed conflict. Unfortunately, we have seen its violation and the impression that it has been sanctioned by the state of Israel and that state actors seem to approve of it.
They say that there are forums like the ICC or the Security Council to prosecute war crimes and the Security Council can set up tribunals like it did in Yugoslavia and Kosovo against different people during the tribunals. The action has been taken, but it requires the approval of the P-5 countries, which seems difficult in the presence of the United States. Five of the 15 members of the Security Council are permanent members, known as the P-Five. These countries include China, Russia, France and the United Kingdom in addition to the United States.
Which people or countries have been punished for war crimes in the past?
Those detained by the International Criminal Court are held at the ICC detention center, which is located within a Dutch prison in Scheveningen, The Hague.
On March 17, the ICC issued arrest warrants against President Putin and Russia’s Commissioner for Children’s Rights, Maria Leva Belova.
The ICC alleges that the two men are personally responsible for illegally sending children from Ukraine to Russia after the February 2022 invasion by Russia.
Among the heads of state indicted by the ICC for war crimes are former President of Serbia Slobodan Milosevic, former President of Liberia Charles G. Taylor, former President of Bosnia and Herzegovina Radovan Kradzic, former President of Sudan Omar al-Bashir, former President of Libya Leader Muammar Gaddafi, former Peruvian president Alberto Fujimori, and post-World War II German admiral and president Karl Dönitz and Japanese prime minister and general Hideki Tojo and Kuniaki Koiso, among others.
