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The challenges of investigating war crimes in the conflict between Israel and Hamas


After Russia's full-scale invasion of Ukraine, the Justice Department moved quickly and publicly to investigate possible Russian war crimes. Attorney General Merrick Garland vowed the department would bring war criminals to justice. Since then, a new war has broken out between Israel and Hamas. But almost six months into that conflict, the Justice Department has been nearly silent on the topic of possible war crimes. NPR's Ryan Lucas reports.

RYAN LUCAS, BYLINE: In June 2022, Attorney General Merrick Garland made a surprise visit to Ukraine. It was less than four months after the Kremlin launched its ferocious assault on the country. And standing alongside his Ukrainian counterpart, Garland insisted that there is no place for war criminals to hide.


MERRICK GARLAND: We and our partners will pursue every avenue available to make sure that those who are responsible for these atrocities are held accountable.

LUCAS: Garland also announced the creation of a special unit to focus on alleged Russian atrocities. Eighteen months later, in December 2023, the Justice Department brought its first war crimes case in the conflict, charging four Russian soldiers for allegedly abducting and torturing an American civilian in southern Ukraine. The aggressive response appeared to signal the department's newfound interest in prosecuting war crimes.

LEILA SADAT: I think Ukraine has been a game-changer because the United States sees its interests as allied with Ukrainians.

LUCAS: Leila Sadat is a professor of international criminal law at Washington University in St. Louis and a former special adviser to the International Criminal Court prosecutor.

SADAT: What's changed with Ukraine is we now have some political will, and we have more staffing in the Justice Department to actually be able to do these cases.

LUCAS: It's unclear, however, whether the department's political will extends to the other major war raging right now, the one between Israel and Hamas. Nearly six months into that conflict, Garland has said just 29 words in public on the question of possible war crimes. Those remarks came at a news conference in December announcing the case against the Russians in this exchange with a Fox News reporter.


UNIDENTIFIED REPORTER: Where are you on war crimes relating to Hamas?

GARLAND: Look. So Hamas murdered more than 30 Americans and kidnapped more during their terrorist attack on October 7. We are investigating those heinous crimes. And we will hold those people accountable.

LUCAS: Garland made no mention about examining Israel's conduct in the conflict. Under the 1996 U.S. War Crimes Act, the Justice Department can bring war crimes charges when either the victim or the perpetrator is a U.S. national or permanent resident. Congress expanded the department's powers last year to allow prosecutors to bring charges if a suspected war criminal is on U.S. soil, regardless of the individual's nationality. War crimes are notoriously difficult to investigate, let alone successfully prosecute. Still, when it comes to the Gaza conflict, experts say the department has legitimate grounds to investigate Hamas' attack on Israel.

DAVID SCHEFFER: There's definitely a basis for an investigation of war crimes by Hamas militants.

LUCAS: David Scheffer is a former U.S. ambassador-at-large for war crimes issues. He says the Hamas attacks on southern Israel on October 7 fall clearly within the definitions of the U.S. war crimes law.

SCHEFFER: The destruction of civilian property and the taking of hostages and bringing them back to Gaza, all of that falls within a war crimes context.

LUCAS: There are allegations of sexual violence as well, which also would be a war crime. Hamas militants killed some 1,200 people, the vast majority of them civilians, in their assault on Israel. They also took more than 200 hostages, more than 130 of whom are still in captivity. The U.S. has designated Hamas a terrorist group. And the Justice Department could pursue terrorism charges against the militants instead, if that would make a stronger case in U.S. court. Either way, pursuing a case against Hamas would be straightforward both legally and politically. As for Israel, experts say there are grounds for the Justice Department to scrutinize its actions in the war as well, although the path forward would be more complicated. Again, Scheffer

SCHEFFER: I think that possibility exists that the Israeli Defense Forces in particular situations could be seen as committing war crimes.

LUCAS: Israel says its actions in Gaza have been in accordance with the laws of war. Still, some 32,000 Palestinians have been killed in Gaza, and more than 75,000 have been wounded, according to Gaza's health ministry. Scheffer says the scale of human suffering and the enormity of the destruction in Gaza demands examination of Israel's actions.

SCHEFFER: The use of firepower by the Israeli Defense Forces has its legitimacy. But the question is, precisely how is that being done? What is the precise impact on civilians? What is the decision-making by the Israeli Defense Forces in how it uses its military force? All of that is up for scrutiny.

LUCAS: The top U.N. rights official and international rights groups say several Israeli actions could amount to war crimes under international law - the limits Israel has placed on humanitarian aid, potentially using starvation as a weapon of war, Israel's forcible displacement of civilians, its extensive destruction of property and its alleged indiscriminate attacks on civilians and civilian infrastructure. U.N. experts also have expressed alarm over reports of Palestinian women being subjected to extrajudicial killings, sexual assault and other inhumane treatment by Israeli forces. Even under the narrower lens of U.S. war crimes law, experts say there is a basis for the Justice Department to scrutinize Israel's actions. Again, Sadat.

SADAT: Should there be political will to prosecute, the Justice Department would have the authority to do a wide range of investigations and prosecutions.

LUCAS: There would be challenges, however, to any U.S. investigation. For one, access to evidence would be difficult.

SADAT: You would have no access right now to Gaza unless you got access through Israeli cooperation. And if you were investigating Israelis, I don't think they would cooperate very readily.

LUCAS: There are also political hurdles to any war crimes prosecution, particularly one that involves a close ally like Israel. That, in part, is why U.S. law requires the attorney general or another senior Justice Department official to approve a war crimes prosecution and certify that it is in the public interest. That bar was met in the only war crimes case the department has brought to date under the law, the recent one charging the Russian soldiers in Ukraine. But that case wasn't about Russia's missile attacks on civilian infrastructure or its destruction of Ukrainian cities. Instead, it was about specific Russian soldiers accused of abducting and torturing an American citizen. And it's that hook, the involvement of a U.S. citizen, that experts say would simplify what could be a politically fraught decision to pursue a case involving Israeli forces. Again, Scheffer.

SCHEFFER: I think it would be politically and pragmatically easier if the victim were of American citizenship.

LUCAS: The same goes if the suspected perpetrator were an American citizen. The Israel-Hamas conflict is unique in that there are thousands of U.S. citizens caught up in it on both sides - hundreds, at least, in Gaza, and some 23,000 currently serving in the Israeli military. Asked about its approach to possible war crimes in the Israel-Hamas conflict, the Justice Department declined to comment for this story. Carmen Cheung is the executive director of the Center for Justice and Accountability. She acknowledges that investigating Israeli forces would be tricky, but she says, if the evidence supports it, doing so would deliver a powerful message.

CARMEN CHEUNG: If the U.S. could do that, it would send a signal that its War Crimes Act actually is meant to apply to everyone, and it really does what it says on the box, which is, you know, provide justice for (inaudible) war crimes.

LUCAS: Just as, she says, for victims of war crimes everywhere. Ryan Lucas, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ryan Lucas covers the Justice Department for NPR.