War Crimes and Genocide: Legal Accountability

The Battle of Solferino, by Adolphe Yvon

When Swiss businessman Henri Dunant witnessed the bloody outcome of the Battle of Solferino in 1859, he was struck by the unaided suffering of the wounded. His observations, recounted in his 1862 A Memory of Solferino led to the founding of the International Red Cross.  Thereafter, the 1864 Geneva Convention marked the beginning of an international legal process that governs not only duties toward the wounded but also the protection of civilians in the conduct of war.

When we in the public viewed recorded episodes of the October 7 massacre of Israeli civilians, we were all Henri Dunant; appalled by the barbarous atrocities committed by Hamas militants.  International Humanitarian Law, as codified in the four Geneva Conventions of 1949, protects civilians in times of war and treats as war crimes the murder of civilians, torture, rape, and hostage-taking. The individual militants and Hamas leadership should be prosecuted for such beastly crimes.

In the more than two months after Israel’s declaration of war on Hamas, we are also appalled by the killing of Palestinian civilians.  The death and destruction unfolding before us on TV screens and reported in the print media are more shocking than the battle scenes at Solferino.

Israel’s declared war of retribution against Hamas has become instead a war against all Palestinians in Gaza. Not counting the bodies that lie beneath the rubble, the death toll now exceeds 18,000, mostly women and children.

While the laws of war allow combatants to target enemy soldiers found in the proximity of civilians, such attacks must be carefully limited in scope to minimize the risk of “collateral damage.” Despite IDF protestations to the contrary, its indiscriminate bombing and shelling of residences, mosques, churches, schools, and hospitals; its forced evacuations of residents; and its Strip-wide siege to cut off water, food, and other life necessities, constitute not only war crimes and ethnic-cleansing, but also genocide.  How could such actions be otherwise given the population density?

As defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide means specified acts committed with intent to destroy “a national ethnical, racial or religious group.”  Such acts include “killing members of the group” and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

Article IV provides that  “persons committing genocide …shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”  Prime Minister Netanyahu, his war cabinet, and individual IDF soldiers and commanders should be held accountable for genocide.

In his provision of offensive weapons to Israel and in his steadfast refusal to join other nations in calling for a ceasefire, President Biden has made the U.S. complicit in Israel’s genocide.  He has also made himself a potential subject for prosecution by his “direct and public incitement to commit genocide.”

Referring to a  U.S. war crime charge against Russia for the torture of an American in Ukraine, F.B.I. Director Christopher Wray said “We’re resolved to hold war criminals accountable no matter where they are or how long it takes.”

Will Wray’s remarks be applied to Israel’s war on Gaza? Not likely, but nations around the world are outraged by America’s sole veto of a Security Council resolution on December 8. That resolution would have demanded “an immediate humanitarian ceasefire in Gaza.” Will any of the U.N. member states (Russia included)  bring charges against Biden for aiding and abetting the Israeli genocide?

Israel currently receives $3.8 billion a year for U.S. weaponry (often battle-tested in wars against Gazans).  Yet Biden seeks to provide an additional $ 14.3 billion in arms to Israel, weapons that would likely be used to kill more Palestinians in the Strip.  Now the State Department has approved a $106 million sale of tank ammo to Israel.  Will voters accept that such transfers make them more secure?  Or will they begin to doubt the wisdom of our intelligence “experts.”

A December 3 news article by The Intercept, quoting “a bombshell new report” in the Israeli newspaper Israel Hayom describes a Netanyahu proposal to “thin” the Palestinian population in Gaza “to a minimum” by relocating the Palestinians to other Arab countries and/or opening up sea routes to allow a mass escape to European and African countries. Israel Today has reported a plan being pushed by members of Congress that would condition U.S. aid to Arab countries on their willingness to accept Palestinian refugees.  Given the inhospitable conditions of the devasted Gaza Strip, such plans seem not as farfetched and immoral as they should be.

If Henri Dunant were alive today, looking down on a devasted and bloodied Gaza, he would certainly lament the failure of law to protect civilians.  Only accountability can redeem such a failure and restore respect for international law.

L. Michael Hager is cofounder and former Director General, International Development Law Organization, Rome.