Justice Department has different approaches to war crimes so far in Ukraine and Gaza: NPR

Following the Kremlin’s large-scale invasion of Ukraine in February 2022, Attorney General Merrick Garland and the U.S. Department of Justice acted quickly and publicly to hold Russia accountable for potential war crimes.

In speeches and press conferences, even in a surprise visit to Ukraine in June 2022Garland condemned Russia’s military attack and the “war crimes that the entire world has seen.” The attorney general has repeatedly promised that the Justice Department would do everything possible to hold perpetrators accountable.

They weren’t just words. garland too He quickly established a task force to focus on possible Russian atrocities, an effort that led to four Russian soldiers being charged late last year for alleged war crimes in Ukraine. The United States is also assisting Ukrainian authorities with their own investigations.

The aggressive public response seemed to indicate the department’s new interest and commitment to war crimes prosecution.

“I think Ukraine has changed the rules of the game because the United States sees its interests as allies of the Ukrainians,” said Leila Sadat, a professor of international criminal law at Washington University in St. Louis and former special adviser to the International Criminal Court. . fiscal. “What has changed with Ukraine is that we now have some political will and we have people in the Department of Justice to be able to take on these cases.”

However, it is unclear whether the department’s political will extends to the other major war currently being fought: the one between Israel and Hamas.

Nearly six months after that conflict, Garland has said only 29 words in public about possible war crimes. Those comments came at a December press conference announcing the case against the Russians, when a Fox News journalist asked him: “What do you think about war crimes involving Hamas?”

Garland responded: “Hamas murdered more than 30 Americans and kidnapped more during its October 7 terrorist attack. We are investigating those heinous crimes and will hold those people accountable.”

Garland did not mention examining Israel’s actions in the conflict.

NPR sent the Justice Department questions for this article about its approach to possible war crimes in the conflict between Israel and Hamas. The department declined to comment.

Experts say US has clear ground to make case against Hamas

Under the U.S. War Crimes Act of 1996, the Department of Justice has jurisdiction to charge war crimes when the victim or perpetrator is a U.S. citizen or permanent resident.

In response to the Ukraine war, Congress last year passed a new law that expanded the department’s powers, giving prosecutors the ability to bring charges if a suspected war criminal is found on U.S. soil, regardless of the nationality of the suspect. individual.

Garland welcomed the passage of the law.

“In the United States of America, there must be no hiding place for war criminals and no safe haven for those who commit such atrocities,” he said in a statement at the time. “This bill will help the Department of Justice fulfill that important mandate.”

With those authorities in hand, the department has clear grounds for investigating Hamas’s deadly attack on Israel, legal experts say.

“There is definitely a basis for an investigation into war crimes committed by Hamas militants,” said David Scheffer, former U.S. ambassador for war crimes issues. “The destruction of civilian property and the taking of hostages and their return to Gaza, all of that falls within a context of war crimes.”

There are also allegations of sexual violence by Palestinian militants on October 7, as well as indiscriminate rocket fire at Israel during the conflict, both of which could also be war crimes.

Hamas’ surprise attack on October 7 on southern Israel killed about 1,200 people, most of them civilians. The militants also took more than 200 hostages, of whom about 130 remain in captivity.

The United States has designated Hamas as a terrorist organization, and U.S. prosecutors could bring terrorism charges against the group’s fighters rather than war crimes, if it would make for a stronger case in U.S. courts.

Either way, experts say bringing a case against Hamas would be straightforward legally and politically.

What about a war crimes case against Israel?

There are reasons for the Justice Department to also examine Israel’s actions in the war, legal experts say, although the path forward would likely be more complicated.

“I think there is a possibility that the Israel Defense Forces, in particular situations, could be seen as committing war crimes,” Scheffer said. “It depends, of course, on the evidence.”

Israel says its actions in Gaza have been in accordance with the laws of war.

But some 32,000 Palestinians have been killed in Gaza and more than 75,000 injured, according to Gaza’s Health Ministry.

Israel has the right to self-defense and to use military force against Hamas, Scheffer said, but added that the scale of human suffering and the enormity of the destruction in Gaza demands an examination of Israel’s actions.

“The use of firepower by the Israel Defense Forces has its legitimacy,” Scheffer said. “But the question is precisely how is that done? What is the precise impact on civilians? What is the decision-making by the Israel Defense Forces and how do they use their military force? All of that is subject to scrutiny”.

Top U.N. human rights officials and international rights groups say several Israeli actions could amount to war crimes under international law: the limits Israel has imposed on humanitarian aid, potentially using starvation as a weapon of war; Israel’s forced displacement of civilians; his extensive destruction of property; and its alleged indiscriminate attacks against civilians and civilian infrastructure.

UN experts have also expressed alarm over reports of Palestinian women subjected to extrajudicial executions, sexual assaults and other inhumane treatment by Israeli forces. Israel denies the accusations.

Even under the narrower lens of US war crimes law, experts say there is a basis for the Justice Department to investigate Israel’s actions.

“If there was political will to prosecute, the Justice Department would have the authority to conduct a wide range of investigations and prosecutions,” said Sadat, former special adviser on crimes against humanity to the prosecutor of the International Criminal Court.

However, any US investigation would likely face challenges, including basic access to evidence.

“Right now you wouldn’t have access to Gaza unless you got it through Israeli cooperation,” Sadat said. “And if you were investigating Israelis, I don’t think they would cooperate very easily.”

The Justice Department could pursue a case involving a US citizen

There are also other considerations – both political and geopolitical – that could hinder any war crimes prosecution, particularly one that would involve a close ally like Israel.

The US war crimes statute 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 and necessary to secure substantial justice.”

In some cases, the Pentagon and the State Department may also weigh in on the potential benefits or adverse consequences to Americans, U.S. officials, or troops of carrying out such processing.

The United States has brought only one case to date under its country’s war crimes statute: the December indictment of four Russian soldiers for allegedly kidnapping and torturing American civilians in southern Ukraine.

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 a close U.S. ally like Israel.

“I think it would be politically and pragmatically easier if the victims were American citizens,” Scheffer said. “That’s a more manageable investigation and prosecution for the Department of Justice.”

That is also the case if the alleged perpetrator is a US citizen.

“Nothing prevents the Department of Justice from examining this issue, whether the perpetrators have Israeli citizenship or Palestinian identity,” Scheffer said.

There are thousands of American citizens caught in the conflict between Israel and Hamas. American officials have said that about 600 American citizens were trapped in Gaza when the conflict began, although many have since left. Meanwhile, the Israeli military says there are an estimated 23,380 Americans currently serving in its ranks.

There are also Americans in the Gaza Strip providing humanitarian aid.

This week, Jacob Flickinger, a dual US-Canadian citizen, was killed in an Israeli airstrike against a convoy of vehicles from the humanitarian group World Central Kitchen. Aid workers from the United Kingdom, Australia, Poland and Palestine were also killed. At least one of the vehicles had the organization’s logo on the roof.

Israel says the attack was a “serious mistake.”

Carmen Cheung, executive director of the Center for Justice and Accountability, said war crimes prosecutions require resources and political will. And she acknowledged that investigating and prosecuting Israeli forces would be complicated, but, if the evidence supports it, taking that step would send a powerful message.

“If the United States could do that, it would send a signal that its War Crimes Act should apply to everyone,” he said. “And it really does what it says on the tin, which is bring justice to victims of war crimes. Everywhere.”