Acting in a state of overwhelming emergency, Israel, its leaders and its people have no choice but to be focused exclusively on defeating and destroying the military force that has attempted to finish Hitler’s work and complete the genocide of the Jewish people. But because we know that Israel will prevail in this battle, it must also now think as well about what comes next.
Israel has taken Hamas fighters and leaders as prisoners. They are not, as a matter of international law and the law of war, “prisoners of war.” That status, which entitles those so designated to protection from mistreatment at the hands of their captors, is reserved for soldiers who wear uniforms, bear arms openly and obey the law of war. Obviously, the terrorist organization that planned and carried out the barbaric acts in southern Israel does not qualify for this status or the protections it affords.
Violation of the law of war is punishable by death—particularly, violations such as those carried out by Hamas, including the intentional murder of noncombatants; the wearing of the uniform of the opposing force (which Hamas fighters did to enable them to kill more Jews); the rape and abuse of women; and all of the other barbaric acts that we know Hamas committed.
Israel already has a death penalty on its books for those who commit terror and genocide, among other offenses. But imposing it requires that decisions be made. If Israel wishes to bring Hamas members back alive from the battlefield—something I do not mean to advocate or oppose here—and if Israel wishes to impose that penalty or any other, then it will need evidence. Trials are of individual human beings and require evidence linking that individual human defendant to the acts for which he is to be held responsible. If trials are to be held, then Israel must instruct its soldiers to gather and preserve evidence right away, which will be found in Hamas offices and bases, as well as in the homes, schools, mosques and hospitals where Hamas has stored materiel and from which it has launched attacks. It means taking pictures or videos.
This also means fighting in a way that brings Hamas personnel alive from the battlefield. My expertise as a lawyer enables me to know to ask the question, though it certainly does not give me the ability to answer it.
But all of these are questions that unfortunately will have to be answered very soon. People with the expertise and responsibility for these issues, including commanders in the field (or the commanders of the commanders in the field) need to start thinking about these issues immediately.
Other questions will arise later. Israel could convene, or have recourse to, some international tribunal to try these people, although I hope it will not. Israel has not submitted itself to the jurisdiction of the International Criminal Court in The Hague because of the obvious bias of that institution. It’s much better for Israel to try these people itself.
Israel will have to decide how and where to hold these prisoners, and to conduct trials. Hamas members are not lawful combatants and certainly should not be tried in civilian criminal courts. Israel does not have juries in any of its courts, and the standards of proof and procedure differ between military and civilian tribunals. Israel will also have to provide lawyers who represent the defendants.
And if the death penalty is sought (and imposed), it will mean carrying that out. Israel will have to decide how, where and when to do that.
And then it must do it. And do it and do it and do it and do it again. So the message is clear. And so that this time, when we say “never again,” they’ll believe us.
{Reposted from JNS}
