Wednesday, October 18, 2023

By Daled Amos

These days, when people talk about what International Humanitarian Law requires in the aftermath of the Hamas massacre of Israeli citizens, the discussion falls first on what limitations need to be placed on Israel. Almost as an afterthought do a few people ask what international law requires of Hamas.

That in itself demonstrates an odd sense of priorities among the global community.

But a third topic in international law is being ignored, namely: what are the obligations of the international community in the face of this terrorist attack. By merely sitting back and focusing on Israel's obligations, the nations of the world run the risk of themselves violating international law.

First of all there is the Genocide Convention. It was approved for ratification by the UN General Assembly in 1948 and went into effect in 1951. According to Article I:
The Contracting Parties confirm that whether committed in time of peace or of war, genocide is a crime under international law which nations are obligated to prevent and to punish.
The convention addresses an act committed with the intent to destroy, even in part, a
o  ethnical
o  racial or
o  religious group
Genocide includes -- among other things -- killing members of the group, causing serious bodily or mental harm and deliberately inflicting conditions with the intent to cause the group's physical destruction in whole or in part. In addition to being directly involved in the genocide, this law also applies to conspiracy, incitement, complicity and even the mere attempt to commit genocide. In addition, the convention not only rulers but also public officials and private individuals liable for punishment.

Then there is UN Security Council Resolution 1373 (2001), which was passed in response to the jihadist attack on 9/11, making this resolution especially relevant to the current situation, given the obvious similarities. It was passed under Chapter 7 of the UN Charter, making it binding on all UN members, unlike other UN resolutions.

According to Article 2, All States shall:
(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;

(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;

(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;
According to Article 3, All States shall:
(f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts;

(g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists;
Furthermore the resolution
5. Declares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations;
On Sunday, Caroline Glick spoke with Professor Avi Bell -- an expert in International Law -- about the legal obligations of the rest of the world in response to the Hamas terrorist attack, and how nations are violating those obligations. Some of his insights are summarized in a JNS article published yesterday.

Bell makes reference to UN Security Council Resolution 1373, and illustrates how some of its requirements are being violated. For instance:
Resolution 1373 stipulates that all U.N. member nations must “Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts.”

Any provision of any aid to Gaza, which is completely controlled by Hamas, is of course either “active or passive” assistance to Hamas, and hence illegal.
This puts the claims of the obligation to provide humanitarian aid to Gazans in a different light, considering how Hamas terrorists are sure to take - and have taken - the aid for themselves.

Professor Bell also points out how Qatar's involvement, supported by the Biden administration, is also in violation of Resolution 1373:
Resolution 1373 also requires all U.N. member states to “Deny safe haven to those who finance, plan, support or commit terrorist acts, or provide safe havens.”

Following Blinken’s visit to Israel last Thursday, he traveled to Qatar. Qatar houses Hamas’s top terror masters. They planned their atrocities from Qatar. Iran’s cash and arms are funneled to Hamas through Qatar. Qatar’s Al Jazeera satellite channel is an integral component of Hamas’s terror machine. On Monday morning, the IDF announced that Al Jazeera reporters are transferring information about IDF troop placements and numbers to Hamas both directly and through their broadcasts...

By embracing Qatar as an ally rather than punishing it for its central role at all levels of Hamas’s terror infrastructure, the administration is breaching international law, yet again. It is also betraying Israel.
Like Resolution 1373, article VII of the Genocide Convention also addresses the issue of extradition:
Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. 

The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.
This becomes relevant because CDR David Levy writes about Hamas Leadership and America’s Extradition Option for The Begin-Sadat Center For Strategic Studies:
EXECUTIVE SUMMARY: Hamas has conducted the most devastating terror attack in Israel’s history, demonstrating humanity’s worst depravity. The attack led to the tragic loss of over 1,200 lives, including at least 22 Americans, with many more individuals held hostage. The US has a responsibility to its citizens to demand the extradition of Hamas leadership to face trial in the US. Drawing upon precedent and previous successful extraditions of international terrorists, the US can leverage diplomatic relationships and military assets to actively pursue their extradition from Qatar, Lebanon, or other locations where they may reside. [emphasis added]
Levy writes that the fact that the US does not have an extradition treaty with Qatar does not have to make it impossible to get that country to hand over the terrorist leaders:
The US does not have extradition agreements with Qatar or Lebanon, but it has leverage. In requesting extradition from Qatar, Washington has some influence over Doha. Initially, Doha will almost certainly not accept. However, the US can orchestrate the desired outcome with a well-constructed “carrot and stick” approach. The US has a significant military presence in Qatar, including the Al Udeid Air Base, a crucial regional strategic asset. The future of this base and broader military cooperation, such as access to military sales, could be used as a bargaining chip. Economic levers could offer incentives like future trade deals or impose targeted sanctions against individuals or entities. Also, the US can endeavor to work with other allies, like Saudi Arabia and Turkey, to influence Qatar.
The article details examples of the US "holding those responsible for the deaths of its citizens accountable" and Levy brags that this is part of a long-standing US tradition. The article would be more convincing if we had not seen the failure of multiple administrations to apply the necessary leverage to get Jordan to hand over the mastermind of the Sbarro massacre, responsible for 16 deaths, including 2 Americans.

If a country like the US will not apply international law for itself, what are the odds we will see any country apply international law for others?

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