tag:theconversation.com,2011:/es/topics/war-crimes-1736/articlesWar crimes – The Conversation2024-02-27T22:52:56Ztag:theconversation.com,2011:article/2241322024-02-27T22:52:56Z2024-02-27T22:52:56ZOther nations are applying sanctions and going to court over Gaza – should NZ join them?<p>Despite the carnage, United Nations resolutions and international court rulings, the war in Gaza has the potential to get much worse. Unless Hamas <a href="https://www.rnz.co.nz/news/world/509603/israel-sets-march-deadline-for-gaza-ground-offensive-in-rafah">frees all Israeli hostages</a> by March 10, Israel may launch an all-out offensive in Rafah, a city of 1.5 million people, cornered against the border with Egypt.</p>
<p>The US has <a href="https://www.aljazeera.com/news/2024/2/20/us-vetoes-another-un-security-council-resolution-urging-gaza-war-ceasefire">continued to block</a> UN Security Council resolutions calling for an immediate ceasefire. But President Joe Biden has <a href="https://www.ft.com/content/a869bfd8-7303-4178-998a-7257eca1f167">cautioned Israel</a> against a Rafah ground assault without a credible plan to protect civilians.</p>
<p>More direct calls for restraint have come from the UN <a href="https://www.voanews.com/a/un-chief-warns-of-gigantic-tragedy-if-israeli-military-expands-fight-to-rafah-/7480114.html">secretary-general</a> and the <a href="https://twitter.com/karimkhanqc/status/1757081372680700206?s=46">prosecutor of the International Criminal Court</a>. To its credit, New Zealand, along with Australia and Canada, added its voice in a <a href="https://www.beehive.govt.nz/release/joint-statement-prime-ministers-australia-canada-and-new-zealand">joint statement</a> on February 15:</p>
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<p>A military operation into Rafah would be catastrophic […] We urge the Israeli government not to go down this path […] Palestinian civilians cannot be made to pay the price of defeating Hamas.</p>
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<p>New Zealand also reiterated its commitment to a political settlement and a <a href="https://documents.un.org/doc/resolution/gen/nr0/038/88/pdf/nr003888.pdf?token=7OZgOAUvsg2og5R5UP&fe=true">two-state solution</a>. Given how hard some other countries are pushing for a ceasefire and peace, however, it is fair to ask whether the National-led coalition government could be doing more.</p>
<h2>NZ absent from a crucial case</h2>
<p>So far, New Zealand’s most obvious contribution has been to <a href="https://www.beehive.govt.nz/release/new-zealand-deploying-nzdf-team-protect-red-sea-shipping">deploy a six-member defence force</a> team to the region to deter Houthi rebel attacks on commercial and naval shipping in the Red Sea.</p>
<p>This collaboration with <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/01/03/a-joint-statement-from-the-governments-of-the-united-states-australia-bahrain-belgium-canada-denmark-germany-italy-japan-netherlands-new-zealand-and-the-united-kingdom/">13 other countries</a> is on the right side of international law. But the timing suggests it is more about preventing the Israel-Gaza situation from spreading and destabilising the region than about protecting international waterways <em>per se</em>.</p>
<p>Furthermore, there is a risk of New Zealand’s response appearing one-sided, considering its relative silence on other fronts.</p>
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Read more:
<a href="https://theconversation.com/the-uns-top-court-didnt-call-for-a-ceasefire-in-gaza-how-does-nz-respond-now-221977">The UN’s top court didn’t call for a ceasefire in Gaza – how does NZ respond now?</a>
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<p>For example, following the <a href="https://www.theguardian.com/world/2024/jan/26/world-courts-interim-ruling-on-genocide-in-gaza-key-takeaways-icj-israel">interim ruling</a> by the International Court of Justice (ICJ) on the application of the Genocide Convention to Israel’s devastation of Gaza, a second opinion is <a href="https://www.icj-cij.org/node/203274">being sought from the court</a> over the legality of Israel’s occupation of Palestinian territory.</p>
<p>Palestinian Foreign Minister Riyad Al-Malki <a href="https://www.france24.com/en/middle-east/20240219-palestinians-accuse-israel-colonialism-apartheid-un-top-court-icj">told the court</a> his people were suffering “colonialism and apartheid” under Israeli occupation. It is the latest round in a monumental debate central to any lasting peace process.</p>
<p><a href="https://www.icj-cij.org/sites/default/files/case-related/186/186-20240209-pre-01-00-en.pdf">More than 50 countries</a> are presenting arguments at the ICJ, the most to engage with any single case since the court was established in 1945. But New Zealand is not present in the oral proceedings.</p>
<p>This absence matches New Zealand’s abstention at the United Nations General Assembly vote that referred the case to the ICJ. A country that prides itself on an independent foreign policy seems to have lost its voice.</p>
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Read more:
<a href="https://theconversation.com/why-egypt-refuses-to-open-its-border-to-palestinians-forcibly-displaced-from-gaza-223735">Why Egypt refuses to open its border to Palestinians forcibly displaced from Gaza</a>
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<h2>An even-handed foreign policy</h2>
<p>New Zealand does call for the observance of international humanitarian law in Gaza. It has been less vocal, though, about calling for accountability for war crimes, no matter which side commits them.</p>
<p>The International Criminal Court, New Zealand’s <a href="https://www.mfat.govt.nz/en/media-and-resources/united-nations-general-assembly-report-of-the-international-criminal-court-2/">permanent representative to the UN has said</a>, is “a central pillar in the international rules-based order and the international criminal justice system”.</p>
<p>Directly supporting that sentiment would mean calling for independent investigations of all alleged crimes in the current Israel-Gaza conflict.</p>
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Read more:
<a href="https://theconversation.com/israeli-siege-has-placed-gazans-at-risk-of-starvation-prewar-policies-made-them-vulnerable-in-the-first-place-222657">Israeli siege has placed Gazans at risk of starvation − prewar policies made them vulnerable in the first place</a>
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<p>Given countries it considers friends and allies do more to register their disapproval of the situation, New Zealand needs to consider whether its own current sanctions system is adequate. </p>
<p>The White House has <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2024/02/01/message-to-the-congress-on-imposing-certain-sanctions-on-persons-undermining-peace-security-and-stability-in-the-west-bank/">begun to sanction</a> individual Israeli settlers in the occupied Palestinian territories, accusing them of undermining peace, security and stability. Britain has also <a href="https://www.theguardian.com/world/2024/feb/12/uk-places-sanctions-on-israeli-settlers-for-forcing-palestinians-from-their-land">placed sanctions</a> on a small number of “extremist” settlers. France has recently <a href="https://www.diplomatie.gouv.fr/en/country-files/israel-palestinian-territories/news/2024/article/israel-palestinian-territories-france-adopts-sanctions-against-violent-israeli#:%7E:text=France%20is%20adopting%20sanctions%20against,ban%20on%20entering%20French%20territory.">identified and sanctioned</a> 28 such individuals.</p>
<p>So far, however, New Zealand has remained silent. This prompts an obvious question: if sanctions can be applied to both <a href="https://www.beehive.govt.nz/release/new-sanctions-also-mark-one-year-russia%E2%80%99s-invasion-ukraine">Russia</a> and <a href="https://www.newshub.co.nz/home/politics/2022/12/new-zealand-imposes-travel-bans-on-22-iranian-security-forces-members-connected-to-mahsa-amini-s-death-violent-response-to-protests.html">Iran</a> for their actions, should New Zealand now follow the lead of its allies and take active measures to express its disapproval of what is happening in Gaza and the occupied territories?</p><img src="https://counter.theconversation.com/content/224132/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Gillespie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>International pressure on Israel to halt its onslaught in Gaza is mounting. New Zealand has so far chosen to stay on the sidelines, despite allies taking more decisive stands.Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2231392024-02-08T17:51:39Z2024-02-08T17:51:39ZGaza update: Netanyahu knocks back Hamas peace plan while the prospect of mass famine looms ever larger<p>The Israeli military is poised to enter what its defence minister, Yoav Gallant, has referred to as the “last centre of gravity that remains in Hamas’s hands: Rafah”. Unfortunately for many of the 1.7 million people reportedly displaced by Israel’s four-month onslaught in Gaza, this is where more than a million of them have taken refuge, according to the latest estimates.</p>
<p>As the Gaza death toll compiled by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) surpassed 26,750 people, with a further 65,000-plus people wounded, the Israeli prime minister, Benjamin Netanyahu, rejected a peace deal proposed by Hamas and relayed by Egyptian and Qatari negotiators as “deluded”. </p>
<p>The proposed three-part plan was for a staged cessation of hostilities and prisoner-hostage swap, with the aim of ending the war completely via negotiations to be finalised by the time the final hostages had been returned.</p>
<p>Insisting that “the day after [the war] is the day after Hamas – all of Hamas”, Netanyahu said he intended to press on until Israel had achieved “total victory”.</p>
<p>But Anne Irfan, an expert in the history of the modern Middle East from University College London, <a href="https://theconversation.com/netanyahus-position-becoming-more-uncertain-as-israeli-pm-rejects-hamas-deal-to-end-war-223113">believes</a> the Israeli prime minister may be thinking it is in his own interests to keep the conflict going as long as he can. His personal approval ratings are abysmal – only 15% of Israelis in a recent survey said they thought he should keep his job after the war ends.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/574411/original/file-20240208-24-86knbn.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Map showing the latest developments in Israel's war with Hamas." src="https://images.theconversation.com/files/574411/original/file-20240208-24-86knbn.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574411/original/file-20240208-24-86knbn.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574411/original/file-20240208-24-86knbn.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574411/original/file-20240208-24-86knbn.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574411/original/file-20240208-24-86knbn.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574411/original/file-20240208-24-86knbn.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574411/original/file-20240208-24-86knbn.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Map of Israel’s war with Hamas.</span>
<span class="attribution"><span class="source">Institute for the Study of War</span></span>
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<p>Meanwhile, Netanyahu is increasingly trapped between the clamour from the families of the Israeli hostages still trapped in Gaza, and the intransigence of the far-right members of his own government who won’t consider doing a deal with Hamas. </p>
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Read more:
<a href="https://theconversation.com/netanyahus-position-becoming-more-uncertain-as-israeli-pm-rejects-hamas-deal-to-end-war-223113">Netanyahu's position becoming more uncertain as Israeli PM rejects Hamas deal to end war</a>
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<p>Netanyahu has also resisted international pressure to consider a two-state solution, which would by definition involve a sovereign Palestine, insisting that Israel is the only state that can guarantee regional security in the long term. </p>
<p>Despite Netanyahu’s wholesale rejection of the notion of Palestinian statehood, both the US and UK have said they are considering the possibility of recognising Palestine after the conflict ends. The UK foreign secretary, David Cameron, said such a move would be “absolutely vital for the long-term peace and security of the region”.</p>
<p>They would be coming into line with much of the rest of the world: 139 of 193 UN members have already recognised the state of Palestine, which has sat in the UN as a “non-member observer state” since 2012, and has already acceded to many of its human rights treaties.</p>
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<p><em>Gaza Update is available as a fortnightly email newsletter. <a href="https://theconversation.com/uk/newsletters/gaza-update-159?utm_source=TCUK&utm_medium=linkback&utm_campaign=Gaza">Click here to get our updates directly in your inbox</a>.</em></p>
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<p>Tonny Raymond Kirabira, an expert in international law at the University of East London, walks us through the <a href="https://theconversation.com/uk-and-us-may-recognise-state-of-palestine-after-gaza-war-what-this-important-step-would-mean-222538">complex issues</a> involved in becoming a state. At the moment, international law dictates that the prerequsites for statehood are a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. As Kirabira reminds us, questions remains whether Palestine actually possesses a “defined territory” and “effective government”.</p>
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Read more:
<a href="https://theconversation.com/uk-and-us-may-recognise-state-of-palestine-after-gaza-war-what-this-important-step-would-mean-222538">UK and US may recognise state of Palestine after Gaza war – what this important step would mean</a>
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<p>So what is the two-state solution? It’s a vexed issue that has been exercising the minds of peacemakers since before the state of Israel was even formally declared in 1948. An early UN partition plan called for what was then known as the “Mandate of Palestine” – under British control – to be divided into separate Jewish and Arab states.</p>
<p>Andrew Thomas, an expert in the politics of the Middle East from Deakin University in Australia, runs through the various iterations of the <a href="https://theconversation.com/explainer-what-is-the-two-state-solution-to-the-israeli-palestinian-conflict-221872">two-state solution</a> since 1948 – and recalls the <a href="https://theconversation.com/jan-egeland-remembers-the-secret-negotiations-that-led-to-the-oslo-accords-podcast-213092">Oslo accords</a> in the 1990s, when the then-Israeli prime minister, Yitzhak Rabin, and the head of the Palestinian Liberation Organisation (PLO), Yasser Arafat, got so close to agreeing a solution which would have recognised Palestine as a state while guaranteeing Israeli security. </p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-the-two-state-solution-to-the-israeli-palestinian-conflict-221872">Explainer: what is the two-state solution to the Israeli-Palestinian conflict?</a>
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<h2>War crime and punishment</h2>
<p>Netanyahu’s pledge to push on to total victory, meanwhile, flies in the face of demands made by the International Court of Justice (ICJ) more than a week ago. The ICJ ordered Israel to take steps to prevent genocidal actions in Gaza, to punish incitement to genocide, to allow Gaza’s people access to humanitarian aid, and to preserve and collect any evidence of war crimes committed during the conflict.</p>
<p>It appears Israel has not yet done any of these things, although it has about another three weeks until it is due to report back to the ICJ. Basema Al-Alami, an expert in international law from the University of Toronto, considers how reports of what is happening on the ground in Gaza <a href="https://theconversation.com/israel-isnt-complying-with-the-international-court-of-justice-ruling-what-happens-next-222350">conflict with the ICJ’s demands</a>, and also what pressure the ICJ rulings will put on Israel’s international donors to reconsider their stance.</p>
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Read more:
<a href="https://theconversation.com/israel-isnt-complying-with-the-international-court-of-justice-ruling-what-happens-next-222350">Israel isn't complying with the International Court of Justice ruling — what happens next?</a>
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<p>It didn’t take the international community long to act after Israel raised allegations that some staff from the UN’s Relief and Works Agency for Palestine refugees (UNRWA) had taken part in Hamas’s October 7 massacres. Within days, 18 donor countries including the UK and US had pulled their support for UNRWA, the principal charity supplying aid to Palestinians.</p>
<p>UCL’s Irfan and Jo Kelcey of the Lebanese American University assess the <a href="https://theconversation.com/gaza-conflict-what-is-unrwa-and-why-is-israel-calling-for-its-abolition-222310">fallout from this mass withdrawal of support</a>, concluding that it could be catastrophic for Palestinians in Gaza, 87% of whom are dependent on UNRWA for its services which include food aid, shelter and medical care. They also point out that Israel’s allegations about the involvement of UNRWA staff in October 7 came the day after the ICJ published its interim ruling.</p>
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Read more:
<a href="https://theconversation.com/gaza-conflict-what-is-unrwa-and-why-is-israel-calling-for-its-abolition-222310">Gaza conflict: what is UNRWA and why is Israel calling for its abolition?</a>
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<p>Greg Kennedy, an expert in strategic foreign policy issues at King’s College London, believes that Israel is deliberately <a href="https://theconversation.com/gaza-weaponisation-of-food-has-been-used-in-conflicts-for-centuries-but-it-hasnt-always-resulted-in-victory-221476">weaponising food supplies</a> in Gaza. He writes that it has been a tactic of war for centuries, and that sieges and blockades remain part of the arsenal of armed conflict.</p>
<p>Starvation, Kennedy adds, can seriously undermine morale and the will to resist. It is also a collective punishment – something explicitly banned under international humanitarian law.</p>
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Read more:
<a href="https://theconversation.com/gaza-weaponisation-of-food-has-been-used-in-conflicts-for-centuries-but-it-hasnt-always-resulted-in-victory-221476">Gaza: weaponisation of food has been used in conflicts for centuries – but it hasn't always resulted in victory</a>
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<h2>There goes the neighbourhood</h2>
<p>Day by day, missile by missile, tensions are ratcheting up around the region as Iran-backed proxies, who have been targeting US military bases for years, have stepped up their campaign of harassment. Taken individually, these attacks are of little significance. As Middle East expert Julie Norman from UCL notes, neither Iran nor the US <a href="https://theconversation.com/middle-east-crisis-us-airstrikes-against-iran-backed-armed-groups-explained-222768">wants to wage a major conflict</a> at the moment – but both countries have political reasons for wanting to act tough. </p>
<p>In Iran, the Islamic Republic presides over a parlous economy and considerable public unrest as the “woman, life, freedom” mass protests continue. In the White House, meanwhile, Joe Biden wants a telegenic show of US force without embroiling his country in a major land war.</p>
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Read more:
<a href="https://theconversation.com/middle-east-crisis-us-airstrikes-against-iran-backed-armed-groups-explained-222768">Middle East crisis: US airstrikes against Iran-backed armed groups explained</a>
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<p>George W. Bush once joked to troops in the Middle East: “You don’t run for office in a democracy and say, ‘Please vote for me, I promise you war.’” And as Andrew Payne, an international security expert from City, University of London notes, Bush – as well as his successor in the White House, Barack Obama, and even the vainglorious Donald Trump (who said of a recent attack on a US base in Jordan: “This attack would NEVER have happened if I was president, not even a chance.”) – grew increasingly averse to military action as the next election loomed.</p>
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Read more:
<a href="https://theconversation.com/middle-east-conflict-joe-biden-must-weigh-the-risks-of-using-force-in-an-election-year-222410">Middle East conflict: Joe Biden must weigh the risks of using force in an election year</a>
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<p>Christoph Bluth, an expert in international affairs at the University of Bradford, presents a <a href="https://theconversation.com/how-iran-controls-a-network-of-armed-groups-to-pursue-its-regional-strategy-221520">cast list of Iran’s affiliates</a> in the region, and explains how Tehran is using them to further its long-term aims in the region – from replacing the US as the dominant power to establishing an “axis of resistance” that could potentially box in Israel.</p>
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Read more:
<a href="https://theconversation.com/how-iran-controls-a-network-of-armed-groups-to-pursue-its-regional-strategy-221520">How Iran controls a network of armed groups to pursue its regional strategy</a>
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<p><em>Gaza Update is available as a fortnightly email newsletter. <a href="https://theconversation.com/uk/newsletters/gaza-update-159?utm_source=TCUK&utm_medium=linkback&utm_campaign=Gaza">Click here to get our updates directly in your inbox</a>.</em></p>
<hr><img src="https://counter.theconversation.com/content/223139/count.gif" alt="The Conversation" width="1" height="1" />
A selection of analysis from our coverage of the war in Gaza over the past fortnight.Jonathan Este, Senior International Affairs Editor, Associate EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2210482024-01-16T16:57:25Z2024-01-16T16:57:25ZGaza war: how South Africa’s genocide case against Israel is shaping up<p>Over the past few days, South Africa has <a href="https://theconversation.com/south-africa-has-made-its-genocide-case-against-israel-in-court-heres-what-both-sides-said-and-what-happens-next-221017">made its case</a> at the International Court of Justice in The Hague, accusing the Israeli government of committing genocide with its 100-day assault on Gaza. </p>
<p>With the death toll <a href="https://www.aljazeera.com/news/2024/1/14/israel-vows-not-to-stop-as-gaza-death-toll-nears-24000-on-day-100-of-war">approaching 24,000</a> in the Palestinian territory, South Africa’s lawyers laid out the grounds on which they are accusing Israel of breaching the 1948 Genocide Convention, while Israel’s legal team have presented their counter- arguments. </p>
<p>South Africa’s case is essentially that Israel’s assault is “intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group, that being the part of the Palestinian group in the Gaza Strip”. Israel in turn has denied this, arguing that it has been exercising its fundamental right to self-defence under international law.</p>
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Read more:
<a href="https://theconversation.com/south-africa-has-made-its-genocide-case-against-israel-in-court-heres-what-both-sides-said-and-what-happens-next-221017">South Africa has made its genocide case against Israel in court. Here's what both sides said and what happens next</a>
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<p>The UN’s <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">genocide convention</a> was adopted by the General Assembly on December 9 1948. It was the first human rights treaty to respond to the systematic atrocities committed by the Nazi regime during the second world war. </p>
<p>It was a Polish Jew, <a href="https://www.unhcr.org/ceu/9486-lemkin-raphael.html">Raphael Lemkin</a>, who first coined the term “genocide”. Lemkin was a lawyer who fled to the US in 1939 after Germany invaded his country. He combined two words: the Greek <em>genos</em> (race or tribe) and the Latin <em>cide</em> (from <em>caedere</em>, meaning: to kill). </p>
<p>According to <a href="https://ihl-databases.icrc.org/en/ihl-treaties/genocide-conv-1948/article-2">Article 2 of the 1948 Convention</a>, the main feature of the ultimate crime against humanity is twofold. One, genocide victims are always “passive targets”. They have been singled out for their membership of a national, ethnic, racial or religious group rather than for anything they have done. And, two, the crime also establishes a “specific intent” to destroy, in whole or in part, that group. </p>
<p>The nexus between the two provisions is the Convention’s backbone. It marks legal boundaries that set genocide apart from other crimes against humanity. While high death tolls often rightly bring international condemnation, as a legal category, genocide is not contingent upon the number of civilian casualties that may ensue from a state’s disproportionate use of military force. </p>
<h2>Genocide in Gaza?</h2>
<p>South Africa’s lawyers have gone to great lengths <a href="https://theconversation.com/south-africas-legal-team-in-the-genocide-case-against-israel-has-won-praise-who-are-they-221019">to prove genocidal intent</a>. They backed this assertion by quoting some of the more <a href="https://theconversation.com/attack-on-gaza-israeli-rhetoric-fuels-fears-of-ethnic-cleansing-as-idf-assault-continues-to-push-south-218727">incendiary statements</a> by the far-right members of the Israeli government. On November 2023, Israel’s heritage minister, <a href="https://www.timesofisrael.com/far-right-minister-says-nuking-gaza-an-option-pm-suspends-him-from-cabinet-meetings/">Amichai Eliyahu</a>, claimed that there was no such thing as non-combatants in Gaza and that dropping a nuclear weapon there was an “option”. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/5ufbfFTi38A?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Tembeka Ngcukaitobi presents South Africa’s case against Israel at the ICJ.,</span></figcaption>
</figure>
<p>Eliyahu is not a member of Israel’s three-person war cabinet. But South Africa’s application reported other controversial statements from those senior leaders as well. </p>
<p>Soon after the October 7 attacks, the defence minister, Yoav Gallant, argued that a complete blockade on Gaza City – preventing water, food, gas or medical supplies from reaching civilians – was a <a href="https://www.theguardian.com/world/2023/oct/09/israel-declares-siege-on-gaza-as-hamas-claims-israeli-strikes-killed-captives">legitimate tactic</a> of warfare. </p>
<p>Israel’s president, Isaac Herzog, said everyone in Gaza <a href="https://www.theguardian.com/commentisfree/2023/oct/16/the-language-being-used-to-describe-palestinians-is-genocidal">was complicit</a> in Hamas’s terror attack on October 7: “It is an entire nation out there that is responsible.” </p>
<p>Israeli prime minister, Benjamin Netanyahu, meanwhile, dropped heavy hints with <a href="https://theconversation.com/attack-on-gaza-israeli-rhetoric-fuels-fears-of-ethnic-cleansing-as-idf-assault-continues-to-push-south-218727">repeated references to Bible history</a> when he invoked references to God’s exhortation to Israel to deal harshly with one of its enemies, to “blot out the remembrance of Amalek from under heaven”.</p>
<h2>Israel’s defence</h2>
<p>The Israeli legal team presented a robust rebuttal. They maintained that the Israel Defense Forces campaign in Gaza was justified by the inalienable <a href="https://govextra.gov.il/mda/october-7-massacre/october-7-massacre/?utm_source=google&utm_medium=cpc&utm_campaign=20920761767&utm_content=156114275223&utm_term=icj%20israel&gclid=CjwKCAiA75itBhA6EiwAkho9ezsgLRSmpUOApLheMK6KuczgbP8X3LWZ4qXzMnra3M955l01qWbh3RoCHQ4QAvD_BwE">right of self-defence</a>. Because of this, it was within the stringent parameters of international humanitarian law. </p>
<p>It had been Hamas, they suggested, that had maliciously endangered Palestinian lives by shielding its military wing inside residential areas while launching attacks from schools, mosques, hospitals and UN facilities.</p>
<p>Opening for Israel, Tal Becker, legal adviser of the ministry of foreign affairs, <a href="https://www.politicsweb.co.za/documents/sa-trying-to-ensure-hamas-gets-away-with-murder--t#:%7E:text=The%20Applicant%20is%20essentially%20asking,State%20against%20a%20civilian%20population.">argued that</a> South Africa was “asking the UN court to substitute the lens of an armed conflict between a state and a lawless terrorist organisation with the lens of a so-called ‘genocide’ of a state against a civilian population”. In so doing, South Africa was not providing the ICJ with a lens but a “blindfold”.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/939hSvcH0qM?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Tal Becker, legal adviser of the Israeli Ministry of Foreign Affairs, presented Israel’s opening statements.</span></figcaption>
</figure>
<p>Becker read descriptive excerpts from a video compiled by the Israeli government describing some of the atrocities committed during Hamas’s October 7 assault into Israel. He also showed an <a href="https://www.timesofisrael.com/hamas-official-says-group-aims-to-repeat-oct-7-onslaught-many-times-to-destroy-israel/">interview with senior Hamas leader Ghazi Hamad</a>, speaking on Lebanese TV on October 24, in which he appeared to assert that Hamas aimed at the complete annihilation of Israel. </p>
<p>Hamad said: “We must teach Israel a lesson, and we will do it twice and three times. The Al-Aqsa Deluge [the name Hamas gave its October 7 onslaught] is just the first time, and there will be a second, a third, a fourth.”</p>
<p>This was offered as proof that, contrary to South Africa’s case, it was Hamas that harboured genocidal intent towards Israelis.</p>
<h2>What the case means</h2>
<p>Whatever the court’s final determinations might be, the accusation levelled against Israel constitutes a historical watershed with profound symbolic ramifications. </p>
<p>Palestinians have traditionally sought legitimacy and recognition by trying to embed their national aspirations and rights in the lexicon of international law. Now, they may feel some catharsis at the sight of Israeli representatives being compelled, for the first time, to defend their country’s conduct of war before a panel of UN judges. </p>
<p>Within Israel’s collective psyche, the recent ICJ proceedings represent an unsettling reversal of history. The crime of genocide has now been invoked against Israel – a state established in the same year as the UN Convention and with its same rationale: protecting the Jewish people from future persecution and destruction. </p>
<p>Without proven intent, the South African application may be, as the US secretary of state <a href="https://www.irishtimes.com/video/world/middle-east/2024/01/10/south-africas-genocide-charge-against-israel-is-meritless-says-blinken/">Antony Blinken has insisted</a>, “meritless” from a legal standpoint. But that reversal alone might retain enough symbolic clout to infer a decisive blow to Israel’s international status.</p><img src="https://counter.theconversation.com/content/221048/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carlo Aldrovandi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The crime of genocide was first established in law by a Polish Jew who had fled the Nazis and wanted to hold them to account for the Holocaust.Carlo Aldrovandi, Assistant Professor in International Peace Studies, Trinity College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2173782024-01-04T20:03:04Z2024-01-04T20:03:04ZAustralia is still reckoning with a shameful legacy: the resettlement of suspected war criminals after WWII<p>In the Canadian parliament last year, an outcry erupted after 98-year-old Ukrainian-Canadian Yaroslav Hunka was presented to Ukrainian President Volodymyr Zelensky as a hero of the second world war. </p>
<p>It turned out Hunka had fought against the Allies as a voluntary member of the Nazi German Waffen-SS Galizien division. The incident was deeply embarrassing for Canada; Prime Minister Justin Trudeau was forced to <a href="https://edition.cnn.com/2023/09/27/americas/trudeau-apology-nazi-unit-intl/index.html">publicly apologise</a>. </p>
<p>The incident also highlighted the ignorance of many Canadians when it comes to world history, as well as the makeup of their own post-war immigration schemes. </p>
<p>As I discuss in my new book, <a href="https://www.routledge.com/Fascists-in-Exile-Post-War-Displaced-Persons-in-Australia/Persian/p/book/9780367696962#:%7E:text=Description,Organisation%20between%201947%20and%201952.">Fascists in Exile</a>, Canada isn’t the only country where former Nazis fled after the second world war. And in many of these countries, families continue to grapple with the legacies of this turbulent time in history.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561743/original/file-20231127-17-ym0xyg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The author’s new book, published in December.</span>
<span class="attribution"><span class="source">Routledge</span></span>
</figcaption>
</figure>
<p>In Australia, for instance, when a Lithuanian immigrant named Bronius “Bob” Šredersas died in 1982, he bequeathed a significant art collection to the city of Wollongong. Last year, however, his secret history was <a href="https://www.abc.net.au/news/2022-06-20/bob-sredersas-a-nazi-report-concludes/101166634">revealed</a>: he was found to be a member of Nazi intelligence in occupied Lithuania during the second world war. He was almost certainly <a href="https://www.theguardian.com/australia-news/2022/mar/21/i-am-bob-just-bob-could-a-wollongong-folk-hero-have-had-a-nazi-past">involved</a> in the persecution and murders of Jews. </p>
<p>In response to a report by Professor Konrad Kwiet of the Sydney Jewish Museum, the Wollongong City Council <a href="https://wollongong.nsw.gov.au/my-community/news-and-alerts/news/news/2022/june-2022/wollongong-art-gallery-removes-sredersas-plaque#:%7E:text=Wollongong%20City%20Council%20has%20removed,artworks%2C%20is%20a%20Nazi%20collaborator.">removed a plaque</a> acknowledging the donation and updated its website with the new information about Šredersas’ past. </p>
<p>These may seem to be isolated, rare cases. They are not. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man on a bench" src="https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564128/original/file-20231207-23-qvfuqb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bronius ‘Bob’ Šredersas photographed in 1950.</span>
<span class="attribution"><a class="source" href="https://wollongong.spydus.com/cgi-bin/spydus.exe/FULL/WPAC/BIBENQ/36933577/27943663,1?FMT=IMG&IMGNUM=3">Wollongong City Libraries</a></span>
</figcaption>
</figure>
<h2>Denial, then investigations</h2>
<p>Around one million Central and Eastern European “displaced persons” were resettled by the United Nations after the second world war in countries such as Canada, Australia, the United Kingdom and the United States. This group included soldiers who had fought in German military units, as well as civilian collaborators. The Nazi-led Holocaust had relied on their firepower and administrative skills. </p>
<p>Many of these people should have been charged with war crimes. But their resettlement in any country that would take them was a matter of political expediency in the fraught post-war and early Cold War period.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=461&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=461&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=461&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=579&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=579&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564134/original/file-20231207-23-abbr9o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=579&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Arthur Calwell and Ben Chifley welcoming new migrants to Australia in 1947.</span>
<span class="attribution"><span class="source">Chifley Research Centre/flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Some 170,000 displaced persons were resettled in Australia between 1947 and 1952. Jewish groups immediately protested that this group included Nazi collaborators. The then immigration minister, Arthur Calwell, dismissed their claims as a “farrago of nonsense”. </p>
<p>The migrants were used as labourers under a two-year indentured labour scheme and transformed into what the government called “New Australians”. </p>
<p>Australia received at least eight extradition requests between 1950 and the mid-1960s for individuals suspected of WWII-era crimes from Yugoslavia and the Soviet Union. These were all refused with the justification that the judicial systems could not be trusted. </p>
<p>In 1961, the then attorney-general, Garfield Barwick, publicly stated he was “closing the chapter” on allegations of war crimes stemming from the second world war. As a result, there would be no further official discussions about any alleged perpetrators residing in Australia. </p>
<p>Decades later, though, all four of these main resettlement countries begin judicial proceedings against the same alleged war criminals they had ignored for so long. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-long-dark-history-of-antisemitism-in-australia-217908">The long, dark history of antisemitism in Australia</a>
</strong>
</em>
</p>
<hr>
<p>Scholars have attributed this change to numerous factors, including the trial of former Nazi leader <a href="https://www.theholocaustexplained.org/survival-and-legacy/postwar-trials-and-denazification/the-trial-of-adolf-eichmann/">Adolf Eichmann</a> in 1961 and the publication of <a href="https://www.ushmm.org/information/press/in-memoriam/raul-hilberg-1926-2007">Raul Hilberg</a>’s comprehensive history of the Holocaust, as well as more generally to the cultural shift of the 1960s and generational change. </p>
<p>A <a href="https://www.smh.com.au/national/nsw/cabinet-papers-199293-hunting-war-criminals-hits-a-snag-20161216-gtd1fn.html">wide-ranging Australian investigation</a>, established by the Hawke government, was later carried out between 1987 and 1992. Among the immigrants who were investigated were 238 Lithuanians, 111 Latvians, 84 Ukrainians, 45 Hungarians and 44 Croatians. </p>
<p>Allegations against 27 men were found to be substantiated, but only three were formally charged: Ukrainians <a href="https://www.upi.com/Archives/1992/07/30/Second-Australian-war-crimes-prosecution-fails/5160754928180/">Mikolay Berezowsky</a>, <a href="https://search.library.uq.edu.au/primo-explore/fulldisplay?vid=61UQ&search_scope=61UQ_All&tab=61uq_all&docid=61UQ_ALMA2182744060003131&lang=en_US&context=L">Heinrich Wagner</a> and <a href="https://www.abc.net.au/news/2018-05-20/nazi-war-criminals-in-australia-and-the-case-of-polyukhovich/9756454">Ivan Polyukhovich</a>. None was convicted.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1707332604129894704"}"></div></p>
<h2>Family histories unearthed</h2>
<p>This was not the end of the story, though. </p>
<p>Many alleged perpetrators of crimes never appeared on any official, or unofficial, list, either before or after the Australian investigation. But stories about individuals have come out in other ways.</p>
<p>My own research, for example, has resulted in the compiling of hundreds of such names by painstakingly piecing together various archival fragments.</p>
<p>For example, a colleague and I were alerted to some suspicious phrasing when the family of Hungarian migrant Ferenc Molnar, now deceased, placed a <a href="https://immigrationplace.com.au/story/ferenc-kalman-frank-molnar-2/">commemorative biography</a> on the website Immigration Place Australia. This biography noted Molnar’s authorship of “a small book about the Holocaust”. It turned out the “small book” was a strident denial of the Holocaust, titled <a href="https://catalogue.nla.gov.au/catalog/1294393">The Big Lie: Six Million Murdered Jews</a>. Molnar himself had claimed to have visited the Dachau concentration camp during the war. </p>
<p>The SBS television show <a href="https://www.sbs.com.au/ondemand/tv-series/every-family-has-a-secret">Every Family Has a Secret</a> has been approached by at least four people who have suspected a deceased family member was a Holocaust perpetrator or collaborator. The show investigated these allegations, using overseas archival researchers. All four suspects were shown to have been allegedly complicit in crimes. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-woman-in-the-usual-sense-ilse-koch-the-bitch-of-buchenwald-was-a-holocaust-war-criminal-but-was-she-also-an-easy-target-203960">'No woman in the usual sense': Ilse Koch, the 'Bitch of Buchenwald', was a Holocaust war criminal – but was she also an easy target?</a>
</strong>
</em>
</p>
<hr>
<p>Angela Hamilton, for example, suspected her deceased Romanian father, Pál Roszy, had been “helping the Nazis” because he was a violent man and rabid anti-Semite. In fact, he had been <a href="https://www.mamamia.com.au/angela-hamilton-no-filter/">convicted</a> in absentia in post-war Romania of killing 31 elderly Jews.</p>
<p>While some families have always either known or suspected the truth, others have been shocked to find a loved one’s name in the files of the 1987-1992 Special Investigations Unit. </p>
<p>My husband’s now-deceased grandfather’s name appears in the files due to an anonymous allegation submitted after a public appeal for information. While the allegation was vague and unlikely, it was not impossible a 19-year-old Ukrainian nationalist could have participated in the wave of anti-Jewish violence that <a href="https://www.routledge.com/European-Fascist-Movements-A-Sourcebook/Clark-Grady/p/book/9780367262860">claimed the lives</a> of some 10,000 Jews in western Ukraine in 1941. </p>
<p>Australian families will continue to reckon with stories like these, perhaps for many years to come. And more than 70 years after the first displaced persons arrived from Europe and 30 years after the Australian war crimes investigations, the Australian public is perhaps finally willing to accept that, just as Holocaust survivors resettled in Australia, so did the alleged perpetrators of atrocities.</p><img src="https://counter.theconversation.com/content/217378/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Jayne Persian receives funding from the Australian Research Council. </span></em></p>Official investigations of suspected Nazi collaborators have long closed. But families are still grappling with the hidden secrets of loved ones, a new book details.Jayne Persian, Associate Professor in History, University of Southern QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2198092023-12-14T02:56:22Z2023-12-14T02:56:22ZIsrael is accused of using white phosphorous. Would this be against international law?<p>Israel’s military <a href="https://www.amnesty.org.au/evidence-of-israels-unlawful-use-of-white-phosphorus-in-southern-lebanon-as-cross-border-hostilities-escalate/">is accused of using</a> white phosphorous in an October attack on the Hezbollah militant group in Lebanon, which allegedly injured at <a href="https://www.washingtonpost.com/investigations/2023/12/11/israel-us-white-phosphorus-lebanon/">least nine civilians</a>. </p>
<p>US National Security Council spokesperson <a href="https://www.washingtonpost.com/investigations/2023/12/11/israel-us-white-phosphorus-lebanon/">John Kirby said</a> this week the Biden administration was “concerned” about the possible use of white phosphorus munitions and that it would be “asking questions to try to learn a bit more.” </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1734293503876673890"}"></div></p>
<p><a href="https://allisrael.com/israel-rejects-allegations-of-unlawful-use-of-white-phosphorus-shells-against-lebanon">Israel has rejected any allegations</a> of the unlawful use of white phosphorus in Lebanon.</p>
<p>But what are the legal uses of this chemical under international humanitarian law? And can its use be considered a war crime?</p>
<h2>How white phosphorous has been used before</h2>
<p>White phosphorous is a chemical component that ignites on contact with air and burns at around <a href="https://www.washingtonpost.com/investigations/2023/12/11/israel-us-white-phosphorus-lebanon/">1,500 degree Fahrenheit</a> (815 Celsius). It can lead to serious injury and or even death if it comes into contact with humans. </p>
<p>Human Rights Watch regards incendiary weapons, such as white phosphorous and napalm, as “<a href="https://www.abc.net.au/news/2023-03-17/explainer-incendiary-weapons-in-ukraine/102093560">among the cruellest weapons used in contemporary armed conflict</a>” due their impact on the human body. Says one Human Rights Watch researcher:</p>
<blockquote>
<p>Incendiary weapons are weapons that set fire or burn people.</p>
</blockquote>
<p>White phosphorus <a href="https://www.jurist.org/commentary/2014/12/sascha-dominikbachmann-incendiary-weapons/">can be used</a> defensively, though, as a smokescreen to mask troop movements on the ground, to illuminate the battlefield, or as a signalling device. It <a href="https://www.hrw.org/news/2023/10/12/questions-and-answers-israels-use-white-phosphorus-gaza-and-lebanon">can also interfere</a> with an enemy’s infrared optics and weapons tracking systems. </p>
<p>But these incendiary weapons can also be used offensively in mortar bombs, rockets and artillery ammunition.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-is-accountability-for-alleged-war-crimes-so-hard-to-achieve-in-the-israel-palestinian-conflict-160864">Why is accountability for alleged war crimes so hard to achieve in the Israel-Palestinian conflict?</a>
</strong>
</em>
</p>
<hr>
<p>White phosphorous <a href="https://www.washingtonpost.com/world/2023/10/13/white-phosphorus-chemical-what-is/">was used</a> by many adversaries in both the first and second world wars, targeting enemy soldiers and civilians alike. </p>
<p>The US also used white phosphorus, alongside napalm, in the Vietnam War and more recently in Iraq during the <a href="https://www.theguardian.com/world/2005/nov/16/iraq.usa">battle of Fallujah</a> in 2004 and <a href="https://foreignpolicy.com/2023/10/19/white-phosphorus-israel-gaza-human-rights-war-crimes-un-icc/">against Islamic state in both Syria and Iraq</a>. </p>
<p>Russia is also accused of using white phosphorus indiscriminately against civilians and combatants in both <a href="https://www.abc.net.au/news/2023-03-17/explainer-incendiary-weapons-in-ukraine/102093560">Ukraine</a> and Syria.</p>
<p>Human Rights Watch <a href="https://www.hrw.org/report/2009/03/25/rain-fire/israels-unlawful-use-white-phosphorus-gaza">criticised</a> Israel’s use of white phosphorous against Hamas targets in Gaza in 2008–09 and said it was <a href="https://www.hrw.org/news/2009/03/25/israel-white-phosphorus-use-evidence-war-crimes">evidence of a potential war crime</a>. </p>
<p>Aware of the negative publicity from these reports, the Israeli Defence Forces pledged in 2013 to <a href="https://www.washingtonpost.com/investigations/2023/12/11/israel-us-white-phosphorus-lebanon/">stop using</a> white phosphorus on the battlefield, saying it would transition to gas-based smoke shells instead.</p>
<h2>What international law says about it</h2>
<p>Incendiary weapons fall under the <a href="http://disarmament.un.org/treaties/t/ccwc">1980 Convention on Certain Conventional Weapons</a>. This treaty aims to protect civilians by limiting the use of certain weapons deemed particularly dangerous. A protocol specifically focused on incendiary weapons <a href="https://ihl-databases.icrc.org/en/ihl-treaties/ccw-protocol-iii-1980/article-1">defines</a> them as: </p>
<blockquote>
<p>any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target.</p>
</blockquote>
<p>White phosphorus is not illegal under international law and the law of armed conflict, as long as long it is being used defensively as a smokescreen or as battlefield illumination. </p>
<p>The targeted use of incendiary weapons directly against civilians, however, is illegal and could be considered a war crime. The use of “air-delivered” incendiary weapons (such as white phosphorus dropped from a plane) against a military target that is in a civilian area is also prohibited.</p>
<p>There is an exception, though, if the military target is “clearly separated” from civilians and all “feasible precautions” are taken to limit incidental loss of civilian life or injuries to civilians.</p>
<p>So, this means the targeting of either Hamas or Hezbollah is permissible as long as the white phosphorus is not air delivered and steps are taken to minimise the harm to civilians. </p>
<h2>What Israel is accused of doing</h2>
<p>Amnesty International has <a href="https://www.amnesty.org/en/latest/news/2023/10/lebanon-evidence-of-israels-unlawful-use-of-white-phosphorus-in-southern-lebanon-as-cross-border-hostilities-escalate/">compiled evidence</a> that indicates white phosphorus was likely used in a civilian setting (the Lebanese town of Dheira) in October. Residents also <a href="https://www.washingtonpost.com/investigations/2023/12/11/israel-us-white-phosphorus-lebanon/">told</a> The Washington Post that Israeli forces had shelled the town with “white phosphorus munitions for hours”.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1734384090571305116"}"></div></p>
<p>These reports need thorough investigation to examine what exactly happened and if there was an illegal use of white phosphorous by Israeli forces or whether it was permitted under the guidelines above. </p>
<p>Investigators will need to determine, for instance, if white phosphorous was indeed used and, if it was, whether it was delivered via an <a href="https://www.hrw.org/news/2023/10/12/questions-and-answers-israels-use-white-phosphorus-gaza-and-lebanon">airburst or a groundburst</a>.</p>
<p>Investigators would also need to determine if the forces took steps to minimise civilian harm. This a very difficult proposition in the current conflict, as both Hamas and Hezbollah are known to embed their fighters within the <a href="https://www.theguardian.com/world/2023/oct/30/human-shield-israel-claim-hamas-command-centre-under-hospital-palestinian-civilian-gaza-city">civilian population</a>.</p>
<p>Any direct targeting of civilians or indiscriminate use of air-delivered incendiary weapons would potentially qualify as a war crime under the <a href="https://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf">Geneva Conventions of 1949</a>.</p>
<p>In the fog of war, it is more important than ever to have independent verification of the actions of combatants on both sides and a thorough investigation by the International Criminal Court (ICC).</p>
<p>However, prosecution of any alleged war crimes in the current conflict remains <a href="https://theconversation.com/why-is-accountability-for-alleged-war-crimes-so-hard-to-achieve-in-the-israel-palestinian-conflict-160864">extremely difficult</a>. This is due, in part, to the fact Israel is not a member of the ICC and rejects the court’s jurisdiction over its territory and both Hamas and Hezbollah are non-state entities.</p><img src="https://counter.theconversation.com/content/219809/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sascha-Dominik (Dov) Bachmann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The use of such incendiary devices is only legal under very specific circumstances. A careful examination of the evidence is now required.Sascha-Dominik (Dov) Bachmann, Professor in Law and Co-Convener National Security Hub (University of Canberra) and Research Fellow (adjunct) - The Security Institute for Governance and Leadership in Africa, Faculty of Military Science, Stellenbosch University- NATO Fellow Asia-Pacific, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2193612023-12-11T13:14:52Z2023-12-11T13:14:52ZIsrael’s mass displacement of Gazans fits strategy of using migration as a tool of war<figure><img src="https://images.theconversation.com/files/564659/original/file-20231210-17-jqac5a.jpg?ixlib=rb-1.1.0&rect=24%2C16%2C5439%2C3620&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Palestinians fleeing the northern part of the Gaza Strip on Nov. 10, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/palestinians-leave-from-the-northern-part-of-the-gaza-to-news-photo/1775101923?adppopup=true">Belal Khaled/Anadolu via Getty Images</a></span></figcaption></figure><p>As a result of the monthslong Israeli air and ground campaign in northern Gaza Strip, <a href="https://www.unrwa.org/newsroom/official-statements/aqaba-process-joint-statement-gaza%E2%80%99s-humanitarian-situation">more than 1.8 million</a> of the strip’s population have been displaced from their homes. And with the operation <a href="https://www.pbs.org/newshour/show/israel-expands-gaza-invasion-south-forcing-many-to-flee-areas-previously-considered-safe">heading into Gaza’s south</a>, many are now fleeing areas they were told would be safer.</p>
<p>This mass displacement – some <a href="https://www.unrwa.org/newsroom/official-statements/aqaba-process-joint-statement-gaza%E2%80%99s-humanitarian-situation">80% of the Gaza population</a> – is a deliberate element of Israel’s military campaign, with complex objectives. In the early stages of the conflict, the Israeli military said it was emptying areas for <a href="https://www.aljazeera.com/news/2023/10/13/israel-orders-1-1-million-people-in-gaza-to-move-south-what-to-know">civilians’ own safety</a> – despite mass evacuation orders being against international law, except in <a href="https://guide-humanitarian-law.org/content/article/3/evacuation-1/">very discrete scenarios</a>.</p>
<p>Since then, other longer-term objectives have been touted by voices in and around the Israeli government. On Oct. 17, 2023, the <a href="https://www.izs.org.il/">Misgav Institute for National Security and Zionist Strategy</a>, an Israeli think tank with links to the government, published a paper <a href="https://www.middleeastmonitor.com/20231024-israel-think-tank-linked-to-netanyahu-promotes-unique-opportunity-to-ethnically-cleanse-gaza/">arguing that the current military campaign</a> presented “a unique and rare opportunity to evacuate the entire Gaza Strip.” </p>
<p>Meanwhile, a <a href="https://www.972mag.com/intelligence-ministry-gaza-population-transfer/">leaked document</a> from Oct. 13, purportedly from the Israeli intelligence ministry, proposed the permanent relocation of all or a portion of Palestinians in Gaza through three steps: set up tent cities in Egypt, create a humanitarian corridor, and build cities on the Sinai Peninsula. The document concluded that the relocation was “liable to provide positive and long-lasting strategic results.”</p>
<p>Similarly, Israel’s intelligence minister has promoted a plan to <a href="https://www.jpost.com/opinion/article-773713">resettle Gazan residents in countries around the world</a>, while a pro-Israeli government news outlet has reported that Israeli Prime Minister Benjamin Netanyahu is eyeing a <a href="https://www.israelhayom.co.il/magazine/hashavua/article/14889801">plan to “thin” Gaza’s population</a> “to a minimum.”</p>
<p>To be clear, the Israeli government has not publicly confirmed any plan for Gaza’s population after the current conflict. But <a href="https://umaine.edu/polisci/people/nicholas-micinski/">as scholars</a> <a href="https://www.bakerinstitute.org/expert/kelsey-norman">of migration</a> <a href="https://scholar.google.com/citations?user=pMlRrUIAAAAJ&hl=en">and war</a>, we understand that displacement in conflict is often strategic – that is, it can serve specific short-term and long-term goals.</p>
<h2>Displacement as a tool of war</h2>
<p>Historically, population displacement has been used for three strategic reasons in conflicts:</p>
<ol>
<li><p>As a means of controlling or expelling a population seen as hostile or undesirable. This occurred during the war in <a href="https://www.ushmm.org/genocide-prevention/countries/bosnia-herzegovina/1992-1995">Bosnia from 1992 to 1995</a>, when the Serbian army <a href="https://hmh.org/library/research/genocide-in-bosnia-guide/">expelled or killed whole communities</a> of Bosniaks, resulting in the ethnic cleansing of <a href="https://books.google.com/books?id=IDMhDgCJCe0C&pg=PA127#v=onepage&q&f=false">82% of the non-Serb population</a>. More recently, nearly the entire <a href="https://www.cfr.org/article/ethnic-cleansing-happening-nagorno-karabakh-how-can-world-respond">Armenian population of the enclave of Nagorno-Karabakh fled</a> the threat of violence by Azerbaijan forces. In other cases, armed groups uproot civilians in order to subjugate them, rather than remove them en mass. From 1993 to 2002, security forces in Turkey <a href="https://journals.openedition.org/etudesrurales/9241">used systematic village evacuations</a> to control and pacify the Kurdish population as part of counterinsurgency operations against the Kurdistan Workers’ Party, or PKK. </p></li>
<li><p>As a grab for territory and resources. This occurred in the Western Sahara, which Morocco claims as part of its territory. Since 1975, the Moroccan government <a href="https://carnegieendowment.org/2013/10/04/western-sahara-beyond-complacency-pub-53214">has sought to repopulate</a> the former Spanish colony by moving Moroccan nationals in and forcing the <a href="https://www.ethicsandinternationalaffairs.org/journal/rethinking-the-concept-of-a-durable-solution-sahrawi-refugee-camps-four-decades-on">displacement of Sahrawis to refugee camps</a> in Algeria. As a result, the population of Moroccan-controlled Western Sahara is comprised of twice as many Moroccans as Sahrawis, and nearly 200,000 Sahrawis remain refugees. </p></li>
<li><p>As a sorting mechanism to weed out disloyal or disobedient populations. During the Syrian Civil War, President Bashar al-Assad’s government systematically depopulated rebel-held areas. Refugees returning to Syria from neighboring countries like Lebanon and Jordan – along with internally displaced Syrians – were <a href="https://euaa.europa.eu/sites/default/files/publications/2021_06_EASO_Syria_Situation_returnees_from_abroad.pdf">put through laborious security checks</a> to vet their loyalty and <a href="https://pomeps.org/beyond-ethno-sectarian-cleansing-the-assortative-logic-of-forced-displacement-in-syria">ensure they do not pose a threat to the Assad regime</a>.</p></li>
</ol>
<h2>Permanent displacement</h2>
<p>In the context of the current conflict in Gaza, all three strategies of population displacement – as control, territorial expansion and sorting – have been reportedly suggested by officials or others with Israeli government ties. </p>
<p>Israel has leveraged the threat of mass exodus of Palestinians to the Sinai Peninsula in negotiations with Egypt. Reports suggest that Israel has floated the idea of <a href="https://www.middleeasteye.net/news/israel-palestine-war-netanyahu-lobbied-eu-push-egypt-accept-gaza-refugees">paying off Egypt’s massive International Monetary Fund debt</a> in exchange for the country hosting refugees from Gaza, or <a href="https://www.ynet.co.il/news/article/hjiyigczt">offering large aid packages</a> in exchange for setting up temporary camps in Sinai.</p>
<p>However, Egypt <a href="https://www.theguardian.com/world/2023/nov/02/why-egypt-has-not-fully-opened-its-gaza-border-for-fleeing-palestinians">has refused to open its border</a> beyond allowing a few hundred Palestinians with dual citizenship and several dozen critically injured individuals to cross.</p>
<p>The mass displacement of Palestinians from Gaza on a permanent basis – be it to Egypt or throughout the world – is unlikely, as it would require agreement from would-be host countries and the compliance of Palestinians, though the chief of the United Nations Relief and Works Agency recently cautioned that Israel is <a href="https://www.latimes.com/opinion/story/2023-12-09/israel-gaza-hamas-united-nations-humanitarian-relief">continuing</a> to pursue this strategy. Moreover, the permanent resettlement of Palestinians from Gaza would amount to ethnic cleansing, something the U.N. <a href="https://www.ohchr.org/en/press-releases/2023/10/un-expert-warns-new-instance-mass-ethnic-cleansing-palestinians-calls">has already warned of</a>.</p>
<p>Any temporary displacement from Gaza would require a guarantee of the right to return for the displaced, and a commitment from Israel that there would be a rebuilt Gaza to return to – and neither is certain.</p>
<h2>‘Indefinite’ occupation</h2>
<p>One option being discussed by Netanyahu is for Palestinians in Gaza to <a href="https://www.bloomberg.com/news/articles/2023-11-07/netanyahu-plans-security-control-over-gaza-for-indefinite-time">live under Israeli security controls for an “indefinite period</a>,” as they did before Israel’s withdrawal from Gaza in 2005. </p>
<p>Such a move would be in line with Israel’s security goal of removing Hamas from its borders. Reoccupation – or even annexation, as some Israeli analysts have <a href="https://www.israelhayom.com/2023/10/17/gaza-the-case-for-annexation/">promoted</a> – of parts of northern Gaza, coupled with the depopulation of these areas, would enable the Israeli military to turn these areas into buffer zones.</p>
<p>But occupation is very resource and labor intensive. Israel will be reluctant to commit to rebuilding Gaza, patrolling the streets and carefully monitoring and governing the population. And an indefinite occupation would put Israeli soldiers at risk and likely become unpopular with the Israeli public and the international community. Already, U.S. President Joe Biden has <a href="https://www.cnn.com/2023/10/15/politics/biden-60-minutes-interview-gaza-israel/index.html">warned Israel against the reoccupation</a> of Gaza, calling the option “a big mistake.”</p>
<h2>Filtering for Hamas</h2>
<p>An alternative to a full occupation is for Israel to <a href="https://www.npr.org/2023/12/08/1218100645/the-israeli-military-keeps-pushing-into-central-and-southern-gaza">continue to drive the Palestinians in Gaza further south</a>, and only allow those deemed not to pose a threat to Israel back in northern Gaza. Israel has stated its intention is to <a href="https://www.npr.org/2023/11/05/1210734100/israel-says-its-goal-is-to-remove-hamas-from-power-what-comes-next-is-unclear">eradicate Hamas</a>. To that end, it has pushed civilians into increasingly smaller areas in the south, with the implication being that those who fail to leave are suspect.</p>
<p>Mark Regev, a senior adviser to Netanyahu, <a href="https://edition.cnn.com/videos/world/2023/12/05/the-lead-mark-regev-jake-tapper-live.cnn">claimed as much in an interview with CNN</a>: “We … asked all the civilians to leave, and most of them did. … One has to ask: They had ample time to leave, why didn’t they heed the advice to leave the area?”</p>
<p>Of course, the implication that those not fleeing are Hamas fighters or supporters ignores the plight of immobile populations like the elderly, disabled and orphans. It also puts the onus on civilians to know where the evacuation zones are. </p>
<p>After the seven-day pause in fighting, Israel resumed the bombardment and began issuing evacuation orders using a numbered grid of neighborhoods in Gaza, <a href="https://www.theguardian.com/world/2023/dec/02/israeli-grid-system-makes-life-in-gaza-macabre-game-of-battleships-say-aid-workers">splitting the strip into more than 600 areas</a>. The Israeli military said this is to protect civilians; however, it could also serve as a crude method of differentiating civilians from Hamas and other militants – the assumption being that people who stay will be viewed as as potential threat.</p>
<figure class="align-center ">
<img alt="A map of the Gaza strip with lots of zones labeled as numbers" src="https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=351&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=351&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=351&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=441&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=441&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=441&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Map shared by an Israeli military official depicting zones in the Gaza Strip.</span>
<span class="attribution"><a class="source" href="https://twitter.com/AvichayAdraee/status/1733036333352767914/photo/1">@AvichayAdraee/Twitter</a></span>
</figcaption>
</figure>
<p>Indeed, images emerged on Dec. 7 of <a href="https://www.theguardian.com/world/2023/dec/08/footage-idf-israel-military-parading-palestinian-men-around-in-underwear">Israeli soldiers detaining seminaked Palestinian men</a> on their knees at gunpoint, allegedly filtering for Hamas fighters.</p>
<p>Controlling Gaza’s population through the use of zones, formal occupation or resettlement elsewhere are strategies that have been repeatedly suggested during the course of the conflict. Which of them, if any, comes to fruition will depend not just on the actions of Israelis and Palestinians, but also on other states and international organizations – namely Egypt, the United States and the United Nations.</p>
<p>And to greater or lesser degrees, all three entities have <a href="https://www.france24.com/en/live-news/20231128-us-warns-israel-over-southern-gaza-displacements">warned Israel against the strategic use</a> of forced displacement to serve its political and military ends. After all, “forcible transfer” is in itself a <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule129">crime under international law</a>. The question now is whether such factors will influence how Israeli officials use strategic displacement – and what it will mean for the future of the Palestinians in Gaza.</p><img src="https://counter.theconversation.com/content/219361/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mass forced movement of people has been used in conflicts to serve three goals: population control, territorial expansion and as a sorting mechanism. All three could be in play in Gaza.Nicholas R. Micinski, Assistant Professor of Political Science and International Affairs, University of MaineAdam G. Lichtenheld, Executive Director of the Immigration Policy Lab, Stanford UniversityKelsey Norman, Fellow for the Middle East, Rice University's Baker Institute for Public Policy, Rice UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2147252023-12-05T19:24:29Z2023-12-05T19:24:29ZAn inside look at the dangerous, painstaking work of collecting evidence of suspected war crimes in Ukraine<figure><img src="https://images.theconversation.com/files/561480/original/file-20231124-25-6uqnar.JPG?ixlib=rb-1.1.0&rect=65%2C5%2C3912%2C2642&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">School cantina damages in Ivanivka village, Chernihiv region, Ukraine."</span> <span class="attribution"><span class="source">Anastasiia Chupis</span>, <span class="license">Author provided</span></span></figcaption></figure><p>In a village in the Chernihiv region of northern Ukraine, activists documenting evidence of potential war crimes in Russia’s invasion of Ukraine last year interviewed a witness whose relative went missing during the early days of the war. The relative’s phone had ended up in the hands of the Russian military, who forgot to deactivate the owner’s Google Photos account. </p>
<p>Russian soldiers then used the phone to take photos of their weapons and equipment, the belongings of Ukrainian civilians that had likely been stolen, and Russian military positions in the area. These were then uploaded to the phone owner’s cloud storage, allowing the Ukrainian war crimes trackers to access them. </p>
<p>With the assistance of their collaborators and specialised open-source intelligence tools, the activists managed to identify more than 20 Russian soldiers – their surnames, positions, ranks, military units and even mobile phone numbers. </p>
<p>This information was then passed to Ukrainian law enforcement officials for possible further investigation. </p>
<p>These activists work for the Educational Human Rights House Chernihiv (EHRHC), a non-governmental human rights organisation. In March 2022, a month after the Russian invasion, the group became a part of two coalitions with significant experience documenting suspected war crimes and human rights violations committed in Ukraine since the Russian annexation of Crimea in 2014.</p>
<p>Their main task has centred on collecting and documenting evidence of attacks and other suspected crimes on Ukrainian educational facilities. Their work is dangerous – even life-threatening – as these activists must visit areas near the front lines that are exposed to daily shelling and littered with landmines and missile debris.</p>
<p>The activists have collected more than 3,000 pieces of information related to potential war crimes for a database and documented 80 cases related specifically to attacks on educational facilities.</p>
<p>As of this month, nearly 3,800 educational institutions across Ukraine have been partially destroyed or severely damaged from bombing and shelling, with another 365 destroyed completely, <a href="https://saveschools.in.ua/en/">according to</a> Ukraine’s Ministry of Education. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/561479/original/file-20231124-15-jg9cco.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/561479/original/file-20231124-15-jg9cco.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561479/original/file-20231124-15-jg9cco.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561479/original/file-20231124-15-jg9cco.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561479/original/file-20231124-15-jg9cco.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561479/original/file-20231124-15-jg9cco.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561479/original/file-20231124-15-jg9cco.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A destroyed house in Kolychivka village, Chernihiv Region, Ukraine.</span>
<span class="attribution"><span class="source">Anastasiia Chupis/Author provided</span></span>
</figcaption>
</figure>
<h2>How war crimes evidence is collected</h2>
<p>As part of our research into the human cost of war and grassroots activism in Ukraine, we have been interviewing activists and organisers from EHRHC to learn about their work documenting suspected war crimes. </p>
<p>The organisation has two main goals. First, it wants to help hold suspected perpetrators of crimes to account by passing evidence to law enforcement agencies. It also wants to preserve people’s memories and experiences during the war for future generations. </p>
<p>Its recruits come from a variety of backgrounds – some have worked for police, others in education. And they are trained from the ground up, as most have never done this kind of work before. </p>
<p>Groups of six are typically sent out on missions to gather evidence and document suspected attacks. This work typically involves recording video and audio testimonies of witnesses with informed consent. These can include school administrators, teachers, technicians, parents and neighbours. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/561483/original/file-20231124-23-jg9cco.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/561483/original/file-20231124-23-jg9cco.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561483/original/file-20231124-23-jg9cco.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561483/original/file-20231124-23-jg9cco.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561483/original/file-20231124-23-jg9cco.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561483/original/file-20231124-23-jg9cco.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561483/original/file-20231124-23-jg9cco.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Damage of the house of culture in Ivanivka village, Chernihiv region, Ukraine.</span>
<span class="attribution"><span class="source">Anastasiia Chupis/Author provided</span></span>
</figcaption>
</figure>
<p>One of the first things the activists try to establish is whether the Russian soldiers involved in an attack discussed their unit affiliation or had any special insignia on their uniforms. Sometimes, soldiers accidentally leave behind military documents or other items, making it possible to identify their unit. </p>
<p>The activists also try to determine the nature of the attack, the type of weapon used, and whether the school was a military target due to the presence of soldiers or concealed weapons used for military purposes.</p>
<p>In addition, the teams sometimes gather physical evidence. This might include taking videos or photos of damage to facilities or recording craters from rockets or holes in buildings and fences. Usually this happens after Ukrainian soldiers or police have inspected a site due to the danger of unexploded debris. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/561482/original/file-20231124-15-6uqnar.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/561482/original/file-20231124-15-6uqnar.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561482/original/file-20231124-15-6uqnar.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561482/original/file-20231124-15-6uqnar.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561482/original/file-20231124-15-6uqnar.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561482/original/file-20231124-15-6uqnar.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561482/original/file-20231124-15-6uqnar.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Training for documenting war crimes by EHRHC.</span>
<span class="attribution"><span class="source">Anastasiia Chupis/Author provided</span></span>
</figcaption>
</figure>
<h2>What happens with the information next?</h2>
<p>When activists return from the field, they transcribe their testimonies and write analyses of the suspected war crimes they believe occurred, in accordance with international humanitarian law. </p>
<p>As Serhii Burov, the head of the EHRHC, explained:</p>
<blockquote>
<p>Schools and educational institutions receive special protection under international humanitarian law. These are treated as special civilian objects, together with the medical facilities. This is what makes them distinctive from other civilian objects. </p>
</blockquote>
<p>According to the <a href="https://www.hrw.org/report/2011/07/20/schools-and-armed-conflict/global-survey-domestic-laws-and-state-practice">laws of war</a>, schools and other educational facilities are protected from attack unless they become legitimate military targets. However, if a school is being used for a <a href="https://protectingeducation.org/wp-content/uploads/documents/documents_commentary_on_the_guidelines.pdf">military purpose</a> – such as a barracks for soldiers – then it may no longer be protected from attack.</p>
<p>The evidence collected by activists is passed to Ukrainian law enforcement agencies, who will decide whether to pursue further investigations. Some cases may go nowhere, as many agencies lack the capacity to do this work. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/561488/original/file-20231124-19-977z75.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/561488/original/file-20231124-19-977z75.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561488/original/file-20231124-19-977z75.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561488/original/file-20231124-19-977z75.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561488/original/file-20231124-19-977z75.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561488/original/file-20231124-19-977z75.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561488/original/file-20231124-19-977z75.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Looking at a map with a witness.</span>
<span class="attribution"><span class="source">Anastasiia Chupis/Author provided</span></span>
</figcaption>
</figure>
<p>However, the EHRHC is often approached by foreign legal experts who can use the principle of universal jurisdiction to launch war crimes investigations in their countries. <a href="https://www.lrt.lt/en/news-in-english/19/1950516/lithuania-s-investigation-recognises-90-people-as-victims-of-war-crimes-in-ukraine">Lithuanian prosecutors</a>, for instance, have identified 90 victims of war crimes in their investigations thus far.</p>
<p>The evidence collected by EHRHC is also shared with their partners in the two larger Ukrainian justice coalitions, which have connections with the International Criminal Court and other institutions involved in investigating war crimes. </p>
<p>As Yaroslav Kyryienko, manager of the EHRHC documentation program, told us:</p>
<blockquote>
<p>At the beginning of our documentation efforts, we were more focused on international institutions […] as we believed it was the most effective mechanism for bringing war criminals to justice. However, most civil society organisations in Ukraine have now come to realise that the most promising approach is to cooperate with national law enforcement agencies, as they will bear the primary responsibility for prosecuting war crimes. </p>
</blockquote>
<h2>‘All of this is for the future’</h2>
<p>Even after the EHRHC trains its recruits how to document attacks, they still have to deal with the psychological part of the job, which can take a toll. </p>
<p>They also encounter witnesses who do not want to speak with them. People may be afraid of condemnation from fellow villagers. Or they might be wary of communicating with the police because they do not believe in the possibility of holding suspected Russian perpetrators to account. There is also a lack of trust in civil society organisations and their ability to bring justice to victims. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/561489/original/file-20231124-25-u49ev3.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/561489/original/file-20231124-25-u49ev3.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561489/original/file-20231124-25-u49ev3.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561489/original/file-20231124-25-u49ev3.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561489/original/file-20231124-25-u49ev3.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561489/original/file-20231124-25-u49ev3.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561489/original/file-20231124-25-u49ev3.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Traces of explosions on fences. Kolychivka village.</span>
<span class="attribution"><span class="source">Anastasiia Chupis/Author provided</span></span>
</figcaption>
</figure>
<p>Many witnesses may also be in a state of shock, making it difficult to share their stories. As Burov told us:</p>
<blockquote>
<p>The most significant challenge for me personally is communicating with people who have experienced trauma or witnessed traumatic events, and the risk of re-traumatising them. Care must be taken in these situations. </p>
<p>We also strive to protect ourselves because, as interviewers, we can become traumatised when talking to witnesses. </p>
</blockquote>
<p>The other main challenge is the lack an immediate, tangible result for the team. Kyryienko says:</p>
<blockquote>
<p>Knowing that the war criminals we have identified are being investigated by law enforcement agencies, punished or included in sanctions lists, or will be in the near future, keeps us motivated to continue our work. </p>
<p>All of this is for the future. Preserving the history of the war is about the future. Bringing justice is about the future. </p>
</blockquote>
<hr>
<p>_Correction: This story has been amended to correct a statistic related to the NGO’s work: the teams have collected more than 3,000 pieces of information related to potential war crimes and documented 80 cases related to attacks on schools, not 3,000 incidents involving attacks on schools, as previously written. _</p><img src="https://counter.theconversation.com/content/214725/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nearly 3,800 educational facilities have been damaged from bombing and shelling thus far in the war. Documenting these attacks requires extensive interviewing with reluctant, traumatised witnesses.Olivera Simic, Associate Professor, Griffith UniversityAnastasiia Chupis, Researcher and scholar at risk, Södertörn UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2189592023-11-30T17:21:27Z2023-11-30T17:21:27ZGaza Update: ceasefire holds for now, but array of armed Hamas allies could threaten this fragile truce<p>So far, the ceasefire between the Israel Defense Forces (IDF) and Hamas, originally set at four days and since extended twice as more hostages and prisoners are exchanged, remains in place. There have been concerns that isolated incidents of violence, including one in Jerusalem where three Israeli civilians were gunned down in an attack claimed by Hamas, might kickstart hostilities once again. But the tenuous pause in the fighting seems, by and large, to be holding.</p>
<p>As a result, aid continues to get into the war-torn Gaza Strip, and the exchange of Israeli hostages taken in the October 7 attacks for Palestinians, most of them women and children held in “administrative detention” in Israel, continues.</p>
<p>In the meantime, we have found out more about the horrors of October 7, including which groups joined Hamas in its killing and kidnapping spree. A BBC report has revealed that five separate armed militias were involved besides Hamas – and that Hamas had trained with up to ten other armed groups prior to the attacks.</p>
<p>Brian Phillips, an expert in international relations at the University of Essex, believes the number of armed groups operating in support of Hamas <a href="https://theconversation.com/gaza-war-hamass-web-of-allies-in-the-october-7-attacks-makes-ending-the-conflict-much-harder-for-israel-218861">increases the risk</a> of a breakdown in the ceasefire. Already since the Jerusalem shootings, Itamar Ben-Gvir – one of the more hawkish members of Benjamin Netanyahu’s government – has called for a military response, saying this incident proves he was right to oppose the ceasefire. </p>
<p>Meanwhile, just across the border in Lebanon are 60,000 Hezbollah fighters. There have been some clashes between Hezbollah and Israel’s military, but so far the “Party of God” has not become fully engaged in the current struggle. This, Phillips says, would be a significant escalation as, in addition to its military might, Hezbollah also wields considerable political muscle in Lebanon, so the conflict could quickly morph into a regional war.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/gaza-war-hamass-web-of-allies-in-the-october-7-attacks-makes-ending-the-conflict-much-harder-for-israel-218861">Gaza war: Hamas's web of allies in the October 7 attacks makes ending the conflict much harder for Israel</a>
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<p>But as long as talks continue, the killing will largely remain on hold – or at least, one must hope so. That the two sides are communicating at all is largely down to the mediation of the Qatari government. Qatar has set itself up as a centre for conflict resolution in recent years under the aegis of its emir, Hamad bin Khalifa Al Thani. The country has hosted an array of peace deals in recent years, including the talks between the US and the Taliban which resulted in the US pull-out from Afghanistan in 2021. Qatar also played a role in ending hostilities between Hamas and Israel in 2012.</p>
<hr>
<p><em>Gaza Update is available as a fortnightly email newsletter. <a href="https://theconversation.com/uk/newsletters/gaza-update-159?utm_source=TCUK&utm_medium=linkback&utm_campaign=Gaza">Click here to get our updates directly in your inbox</a>.</em></p>
<hr>
<p>As Vassilis Fouskas, a professor of international politics and economics at the University of East London, <a href="https://theconversation.com/gaza-war-how-qatar-used-its-business-connections-to-become-a-leading-mediator-in-the-middle-east-218461">explains</a>, Al Thani is the only head of state to have visited Gaza since Hamas took over in 2007. His leadership has provided millions of dollars in aid support to Gaza, as well as allowing Hamas to open an office in Qatar’s capital, Doha. Fouskas writes that as well as the political clout this gives Qatar with Hamas, the small but extremely wealthy Gulf kingdom has also built strong business ties in the west, which gives it access to the US and – through them – to Israel.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/gaza-war-how-qatar-used-its-business-connections-to-become-a-leading-mediator-in-the-middle-east-218461">Gaza war: how Qatar used its business connections to become a leading mediator in the Middle East</a>
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<p>The extensions to the original four-day truce have been a blessed chance for aid agencies to funnel supplies to the Gazan population, who have been under virtual siege since October 7. But Sarah Schiffling of Hanken School of Economics and Chris Phelan of Edge Hill University, both experts in humanitarian aid management, believe that the amounts of food, fuel and medicine reaching the 2.2 million people in Gaza – most of whom have been displaced – will be <a href="https://theconversation.com/gaza-what-aid-agencies-can-hope-to-achieve-under-the-strict-limits-of-the-four-day-humanitarian-pause-218419">far from adequate</a>. </p>
<p>This was confirmed by the UN secretary general, Antonio Gutterez, who said on November 29: “[The aid] remains completely inadequate to meet the huge needs of more than 2 million people.” Schiffling and Phelan also believe the scale of the humanitarian disaster is such that once Israel resumes its assault, the situation could worsen rapidly.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/gaza-what-aid-agencies-can-hope-to-achieve-under-the-strict-limits-of-the-four-day-humanitarian-pause-218419">Gaza: what aid agencies can hope to achieve under the strict limits of the four-day humanitarian pause</a>
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<p>One of the big concerns for humanitarian agencies is that disease will end up being an even bigger killer in Gaza than Israel’s bombardment. The World Health Organization (WHO) recently highlighted that if Gaza’s water supplies and sanitation systems are not repaired very soon, there could be an enormous surge of gastrointestinal and infectious diseases among the local populations – including cholera.</p>
<p>Yara M. Asi, an assistant professor of global health management at the University of Central Florida, <a href="https://theconversation.com/gazas-next-tragedy-disease-risk-spreads-amid-overcrowded-shelters-dirty-water-and-breakdown-of-basic-sanitation-217516">writes that</a> the “easy spread of infectious disease in wartime conditions can be just as devastating as airstrikes to health and mortality – if not more so”. She believes that Gaza’s healthcare system, already virtually crippled before October 7, is fast becoming overwhelmed.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/gazas-next-tragedy-disease-risk-spreads-amid-overcrowded-shelters-dirty-water-and-breakdown-of-basic-sanitation-217516">Gaza's next tragedy: Disease risk spreads amid overcrowded shelters, dirty water and breakdown of basic sanitation</a>
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<hr>
<h2>Targets and tunnels</h2>
<p>Among the more contentious “military targets” have been several of Gaza’s hospitals which, under the rules of war, must be protected from attack. The only exception is when such medical premises are being used for military purposes, which – as we wrote here a fortnight ago – is what Israel has claimed about the al-Shifa hospital, Gaza’s largest, which it raided and searched on November 15. </p>
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<p>The IDF published a video showing a tunnel under the hospital which it claimed was evidence of a Hamas command-and-control facility being run from the premises. Jamie Pringle, a reader in forensic geoscience at Keele University, and Alastair Ruffell of Queen’s University Belfast, are both experts at underground forensic detection, and <a href="https://theconversation.com/gaza-war-how-investigators-would-go-about-finding-and-verifying-underground-military-complexes-218101">they explain</a> how they would go about searching a facility such as al-Shifa for underground facilities.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/gaza-war-how-investigators-would-go-about-finding-and-verifying-underground-military-complexes-218101">Gaza war: how investigators would go about finding and verifying underground military complexes</a>
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<p>Meanwhile, we’ve heard from Prime Minister Netanyahu that the IDF remains poised to resume its assault on Gaza – which, he says, will continue until they have rooted out and destroyed Hamas as a political force. So far, the IDF has reported 75 of its forces have been killed during the ground offensive, but James Horncastle – an expert in international relations from Simon Fraser University in Canada – believes that the more of Gaza Israel destroys, the <a href="https://theconversation.com/israels-ground-offensive-in-gaza-city-is-ignoring-the-past-lessons-of-urban-warfare-218471">more difficult its mission becomes</a>. As he observes: “Debris [created by the aerial bombardment] creates natural choke points and fortifications that the defender can use to control the movement of the aggressor.”</p>
<p>Horncastle explains that Hamas fighters will be intimately aware of the terrain on which they are fighting, and have been preparing for this offensive for years. And that Israel has so far only explored a fraction of the estimated 500km of tunnels under Gaza, which allowed Hamas fighters to shelter during the weeks of aerial bombardment that preceded this ground offensive.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/israels-ground-offensive-in-gaza-city-is-ignoring-the-past-lessons-of-urban-warfare-218471">Israel's ground offensive in Gaza City is ignoring the past lessons of urban warfare</a>
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<h2>Dissent on both sides</h2>
<p>As the IDF’s assault has gradually moved south through the Gaza Strip, driving before them hundreds of thousands of refugees desperate to find sanctuary from the violence, there have been reports that some Palestinians are openly expressing defiance of Hamas. Indeed, polling taken in the days before the October 7 attacks found that more than two-thirds of people in Gaza and the West Bank had either little or no confidence in Hamas.</p>
<p>Christoph Bluth, an expert in international relations at the University of Bradford, considers how <a href="https://theconversation.com/gaza-war-how-representative-is-hamas-of-ordinary-palestinians-218080">representative Hamas is</a> of ordinary Palestinians, noting that the most recent election in Gaza was in 2006 and that – given the average age of the population is about 18 – most people won’t have voted for them. Bluth adds that human rights organisations have recorded many instances of arbitrary detention, torture and punishment beatings of Gaza residents by the Hamas authorities, while Hamas also stands accused of harassing journalists who criticise its government.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/gaza-war-how-representative-is-hamas-of-ordinary-palestinians-218080">Gaza war: how representative is Hamas of ordinary Palestinians?</a>
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<p>On the other side of the border fence, Israeli journalists are coming under fire from the Netanyahu government for not toeing the official line. Haaretz, Israel’s most prominent left-leaning daily newspaper, has felt the wrath of the communications minister, Shlomo Karhi, who has suggested financial penalties be applied to the paper while accusing it of publishing “lying, defeatist propaganda” and “sabotaging Israel in wartime”. The proposal aims to cancel state subscriptions to the paper and “forbid the publication of official notices”.</p>
<p>Colleen Murrell, who has worked as a reporter and producer for the BBC and ITN, among others – including a stint in Gaza – and is now a professor of journalism at Dublin City University, charts the way the Israeli authorities are trying to <a href="https://theconversation.com/gaza-war-israeli-government-has-haaretz-newspaper-in-its-sights-as-it-tightens-screws-on-media-freedom-218730">control the message</a>, using heavyhanded tactics first employed by the British during the Palestine Mandate before 1948.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/gaza-war-israeli-government-has-haaretz-newspaper-in-its-sights-as-it-tightens-screws-on-media-freedom-218730">Gaza war: Israeli government has Haaretz newspaper in its sights as it tightens screws on media freedom</a>
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<hr>
<h2>Violence versus humanity</h2>
<p>Since October 7 there has been a dramatic uptick in the number of violent incidents in the West Bank, where there are reported to be more than 750,000 Israelis living in 290 illegal settlements. Since the Hamas attacks, the United Nations has recorded 281 settler attacks on Palestinians as of November 29.</p>
<p><iframe id="tc-infographic-951" class="tc-infographic" height="400px" src="https://cdn.theconversation.com/infographics/951/58803d8c914b810a104defba8599652b6260bb00/site/index.html" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Tristan Dunning of the University of Queensland and Martin Kear from the University of Sydney – both experts in the Israeli-Palestinian conflict – <a href="https://theconversation.com/since-the-gaza-war-began-violence-against-palestinians-has-also-surged-in-the-west-bank-and-gone-virtually-unnoticed-218236">report that</a> the 250 deaths caused by this surge in settler violence include 55 children. It doesn’t help that the settlers are being openly encouraged by Israel’s interior minister, Itamar Ben Gvir, who said earlier in the year: “We have to settle the land of Israel and at the same time need to launch a military campaign, blow up buildings, assassinate terrorists. Not one or two but dozens, hundreds or, if needed, thousands.” </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/since-the-gaza-war-began-violence-against-palestinians-has-also-surged-in-the-west-bank-and-gone-virtually-unnoticed-218236">Since the Gaza war began, violence against Palestinians has also surged in the West Bank – and gone virtually unnoticed</a>
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<p>Humanity seems to find it hard to heed Martin Luther King’s warning that “hate begets hate, violence begets violence”. Torbjörn Tännsjö, of Stockholm University, gives us a <a href="https://theconversation.com/gaza-war-a-better-understanding-of-the-violence-on-both-sides-might-give-us-a-chance-at-a-solution-216855">moral philsopher’s view</a> of the conflict, comparing Hamas’s savage attack on October 7 with the brutality of Israel’s response. He remains optimistic that humanity on both sides might prevail, while admitting that, at present, this appears to be a long shot.</p>
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Read more:
<a href="https://theconversation.com/gaza-war-a-better-understanding-of-the-violence-on-both-sides-might-give-us-a-chance-at-a-solution-216855">Gaza war: a better understanding of the violence on both sides might give us a chance at a solution</a>
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<p><em>Gaza Update is available as a fortnightly email newsletter. <a href="https://theconversation.com/uk/newsletters/gaza-update-159?utm_source=TCUK&utm_medium=linkback&utm_campaign=Gaza">Click here to get our updates directly in your inbox</a>.</em></p>
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A selection of analysis from our coverage of the war in Gaza over the past fortnight.Jonathan Este, Senior International Affairs Editor, Associate EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2188442023-11-30T12:42:34Z2023-11-30T12:42:34ZIsrael-Gaza: what the term genocide means under international law – podcast<p>In the weeks since the Hamas attack on Israel on October 7 and the Israeli bombardment and ground assault on Gaza, both sides have traded accusations of genocide. Hamas killed 1,200 Israelis and took more than 200 hostage, while Israel’s subsequent aerial and ground attacks on Gaza have killed <a href="https://www.reuters.com/world/middle-east/more-israeli-hostages-palestinians-expected-be-freed-with-extended-truce-2023-11-27/">more than 15,000 Palestinians</a> and displaced millions. </p>
<p>In this episode of <a href="https://theconversation.com/uk/topics/the-conversation-weekly-98901">The Conversation Weekly</a> podcast, we speak to an expert on genocide about the history of the term and what’s needed to prove it under today’s international legal definition. </p>
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<p>The term genocide was first coined by the Polish lawyer Raphael Lemkin in 1944 amid the horrors of the Nazi Holocaust. Lemkin, who was Jewish, originally <a href="https://academic.oup.com/ahr/article-abstract/51/1/117/101266?redirectedFrom=fulltext&login=false">defined genocide</a> as “the destruction of a nation or ethnic group”, encompassing both physical killings and an assault on the spirit of a group, including its social, economic and political ways of life.</p>
<p>Lemkin’s definition laid the foundation for the 1948 UN Genocide Convention, which <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">specifies that genocide</a> can occur “with with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. This can be through killing, destroying a group, preventing births, or transferring children to another group, among other means. This convention was instrumental in setting up international tribunals in the 1990s to prosecute war criminals in the former Yugoslavia and Rwanda.</p>
<h2>Proving intent</h2>
<p>However, Alexander Hinton, a professor in anthropology at Rutgers University Newark in the US, says that the need to prove intent can pose a significant hurdle to prosecutions for genocide. </p>
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<p>It’s much better to have a legal definition than not to have one … but it also means that when horrific acts take place that don’t fall within the purview of that legal definition, people say, ‘well, it’s not genocide’. </p>
</blockquote>
<p>Hinton is an expert on the Cambodian genocide and <a href="https://www.newark.rutgers.edu/news/professor-alex-hinton-testifies-un-backed-international-tribunal-khmer-rouge">testified</a> during the UN-backed international tribunal that convicted some of the Khmer Rouge leaders of genocide. He cautions against focusing too much attention on proving the crime of genocide, rather than on other types of crimes that may be taking place. “Atrocity crimes, genocide, crimes against humanity, war crimes and ethnic cleansing are all horrific,” he says, adding that the priority should be on “crimes against humanity”.</p>
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Read more:
<a href="https://theconversation.com/both-israel-and-palestinian-supporters-accuse-the-other-side-of-genocide-heres-what-the-term-actually-means-217150">Both Israel and Palestinian supporters accuse the other side of genocide – here's what the term actually means</a>
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<p>Cases for atrocity crimes brought under international law can be slow, such as in The Gambia’s <a href="https://www.icj-cij.org/case/178">ongoing prosecution</a> of Myanmar for the genocide of the Rohingya people. But Hinton hopes that the Genocide Convention, alongside institutions such as the International Criminal Court and the UN Office on Genocide Prevention, provide tools that can be used to bring an end to a conflict more swiftly. Countries can also take independent actions against alleged perpetrators, such as naming and shaming or imposing sanctions.</p>
<p>When it comes to the current conflict between Israel and Hamas, Hinton refuses to be drawn on whether genocide is taking place under the legal definition of the term.</p>
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<p>It has limitations and it’s also used politically, and so it’s important to understand there are other ways of understanding the term. And so ultimately each of us needs to bring our knowledge to bear, our critical thinking, and make a determination of what is taking place in Israel and Gaza.</p>
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<p>Listen to the full interview with Alexander Hinton on the <a href="https://podfollow.com/the-conversation-weekly/view">The Conversation Weekly</a> and <a href="https://theconversation.com/both-israel-and-palestinian-supporters-accuse-the-other-side-of-genocide-heres-what-the-term-actually-means-217150">read an article he wrote here too</a>. A <a href="https://cdn.theconversation.com/static_files/files/2976/Genocide_Transcript.docx.pdf?1702403301">transcript of this episode</a> is now available. </p>
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<p><em>This episode was written and produced by Mend Mariwany with assistance from Katie Flood and Gemma Ware. Gemma Ware is the executive producer of the show. Our theme music is by Neeta Sarl.</em></p>
<p><em>Newsclips in this episode from <a href="https://www.youtube.com/watch?v=b7HposRq3Ds&ab_channel=UnitedNations">United Nations</a> and <a href="https://www.youtube.com/watch?v=KT7QUzJg0aM">BBC News.</a></em></p>
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<p><em>Listen to <em>The Conversation Weekly</em> via any of the apps listed above, download it directly via our <a href="https://feeds.acast.com/public/shows/60087127b9687759d637bade">RSS feed</a> or find out <a href="https://theconversation.com/how-to-listen-to-the-conversations-podcasts-154131">how else to listen here</a>.</em></p><img src="https://counter.theconversation.com/content/218844/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Hinton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Both Israelis and Palestinians are accusing each other of genocide. In this episode of The Conversation Weekly podcast, we speak to a genocide expert on the legal definition of the term.Mend Mariwany, Producer, The Conversation Weekly Podcast, The ConversationLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2177852023-11-22T19:09:42Z2023-11-22T19:09:42ZThere has been much talk of war crimes in the Israel-Gaza conflict. But will anyone actually be prosecuted?<p>Since the February 2022 outbreak of the Russia-Ukraine war, there has been global debate about whether war crimes have been committed by Russian soldiers, military leaders and politicians. </p>
<p>Regular protests have been held in Canberra, outside the Russian embassy, where signs proclaim “Putin is a War Criminal”. Australia has also been focusing on war crimes, highlighted by the <a href="https://www.theguardian.com/australia-news/2023/jun/06/ben-roberts-smith-defamation-case-key-findings-from-the-complete-judgment">Ben Roberts-Smith defamation case</a> and the ongoing work of the Office of the Special Investigator. On <a href="https://www.osi.gov.au/news-resources/former-australian-soldier-charged-war-crime">March 20</a> it was announced that the first modern Australian <a href="https://www.theguardian.com/australia-news/2023/mar/28/bail-for-former-sas-soldier-oliver-shulz-accused-of-murdering-afghan-man-in-war">war crimes charges</a> had been laid against former SAS soldier Oliver Schulz.</p>
<p>The Hamas-Israel conflict has now become the next arena for possible war crimes prosecutions. Hamas atrocities against Israeli civilians on October 7 have been followed by the Israeli assault on Hamas in the Gaza Strip. </p>
<p>The 24/7 media coverage presents daily evidence of war crimes. The international community from the <a href="https://news.un.org/en/story/2023/11/1143772">United Nations Secretary-General</a> to various UN agencies and UN Special Rapporteurs have called out war crimes during the conflict against civilians, and especially children. </p>
<p>Political leaders from around the world have spoken of their horror at these unfolding events, and called for the release of the Israeli hostages, restraints on the use of force, humanitarian pauses, and a ceasefire. <a href="https://www.amnesty.org/en/latest/news/2023/10/damning-evidence-of-war-crimes-as-israeli-attacks-wipe-out-entire-families-in-gaza/">Civil society</a> has taken to the streets, the airwaves and the internet to debate, discuss and protest these events. There have even been <a href="https://www.ohchr.org/en/press-releases/2023/11/gaza-un-experts-call-international-community-prevent-genocide-against">allegations of genocide</a>. </p>
<p>Against this backdrop, there has been a continued reassertion of Israel’s right to exercise self-defence, and the need to respect international humanitarian law applicable in armed conflicts.</p>
<p>Will there be any accountability for war crimes committed by Hamas, and in Gaza? </p>
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<h2>How alleged war crimes can be prosecuted</h2>
<p>One of the biggest international law projects following the second world war was the development of an international criminal justice system designed to make those responsible for war crimes, crimes against humanity, and genocide, accountable for their actions. </p>
<p>The postwar <a href="https://history.state.gov/milestones/1945-1952/nuremberg">Nuremburg and Tokyo trials</a> were effectively experiments in how an international criminal justice system would work. Efforts to establish a standing global criminal court were stymied by the Cold War, but then revived following the “success” of the international criminal tribunals for the <a href="https://www.icty.org/">former Yugoslavia</a> and <a href="https://unictr.irmct.org/">Rwanda</a>. </p>
<p>This paved the way for negotiation of the <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">Rome Statute</a> and the eventual establishment in 2002 of the <a href="https://www.icc-cpi.int/">International Criminal Court</a> (ICC). There are now effectively two mechanisms for the modern prosecution of war crimes: national courts all over the world, or the ICC in The Hague.</p>
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Read more:
<a href="https://theconversation.com/the-international-criminal-court-is-unlikely-to-prosecute-alleged-australian-war-crimes-heres-why-208180">The International Criminal Court is unlikely to prosecute alleged Australian war crimes – here's why</a>
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<p>Israel has clear capacity to prosecute war crimes committed by Hamas, including the taking of Israeli hostages. Prosecutions could be conducted under Israeli criminal law, especially with respect to the October 7 acts of terror that resulted in the murder of numerous civilians. </p>
<p>A draft law seeking to reintroduce the death penalty for terrorism in Israel is <a href="https://www.timesofisrael.com/liveblog_entry/ben-gvir-says-he-will-bring-death-penalty-for-terrorists-bill-to-knesset-this-week/">currently under debate</a>. </p>
<p>Members of the Israeli Defence Force are also subject to Israeli criminal law. Some have previously been prosecuted for crimes committed in the course of their duties, including acts resulting in civilian deaths, but <a href="https://en.idi.org.il/articles/12244">prosecutions have been rare</a>. </p>
<p>Prosecutions for war crimes committed during the Hamas-Israel conflict could even be commenced by other national courts on the basis of universal jurisdiction. While rare in modern times, states have obligations to prosecute those who have committed war crimes under the <a href="https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm">1949 Geneva Conventions</a>.</p>
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<p>Internationally, war crimes prosecutions over the past 30 years have become more frequent. Between 1993 and 2017, there were <a href="https://ijrcenter.org/international-criminal-law/icty/">161 prosecutions</a> by the International Criminal Tribunal for the Former Yugoslavia, resulting in 89 convictions and 18 acquittals. </p>
<p>The <a href="https://unictr.irmct.org/en/tribunal">International Criminal Tribunal for Rwanda</a> operated between 1995 and 2012, during which time there were 93 prosecutions and 62 convictions. Some appeals are ongoing. </p>
<p>The ICC currently has 123 state parties, including Palestine. The court <a href="https://www.icc-cpi.int/about/the-court#:%7E:text=ICC%20judges%20have%20issued%2040,people%20due%20to%20their%20deaths.">has issued</a> 40 arrest warrants, and to date has recorded ten convictions and four acquittals. The highest-profile <a href="https://www.icc-cpi.int/news/statement-prosecutor-karim-khan-kc-issuance-arrest-warrants-against-president-vladimir-putin">arrest warrant</a> was issued on March 17 2023 for Russian President Vladimir Putin. Russia is not a party to the Rome Statue and Putin remains at large, although his capacity for international travel is constrained out of fear he could be detained by one of the court’s member states.</p>
<p>Given the growing international spotlight and profile of the ICC, especially during the Russia-Ukraine war, there is growing momentum for the court to prosecute war crimes arising from the Hamas-Israel conflict. This extends to the actions of Hamas fighters and leaders, Israeli soldiers, and Israel’s military and political leadership. </p>
<h2>Prosecutions are difficult – and rare</h2>
<p>However, war crimes prosecutions in The Hague against individuals are not easy. Evidence needs to be collected and timely witness statements taken. This often requires investigations to take place on the ground, which can be dangerous and often impossible during an ongoing conflict.</p>
<p>Formal prosecutions need eventually to be commenced, and the ICC must accept it has jurisdiction to issue arrest warrants. The accused then needs to be detained and brought before the court. While all of these steps generally mirror national criminal prosecutions, war crimes have an international political element and raise particular national sensitivities and emotions.</p>
<p>Attention has turned to whether the ICC’s prosecutor, Karim Khan, will formally seek to prosecute war crimes arising from the Hamas-Israel conflict. On <a href="https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine">November 17</a>, Khan’s office received notification of a referral of the situation in Palestine from South Africa, Bangladesh, Bolivia, Comoros and Djibouti. </p>
<p>This reinforces an existing referral from <a href="https://www.icc-cpi.int/palestine">March 3 2021</a> encompassing possible war crimes committed since June 13 2014 in Gaza. While Israel does not recognise the jurisdiction of the ICC, Khan seems determined to investigate and eventually prosecute war crimes arising from the conflict. He <a href="https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine">visited</a> the Rafah Crossing between Egypt and Gaza on October 29.</p>
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Read more:
<a href="https://theconversation.com/why-is-accountability-for-alleged-war-crimes-so-hard-to-achieve-in-the-israel-palestinian-conflict-160864">Why is accountability for alleged war crimes so hard to achieve in the Israel-Palestinian conflict?</a>
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<p>The ICC is <a href="https://www.icc-cpi.int/about/the-court">well resourced</a>. Its current budget is €169 million (A$281 million) and it has more than 900 staff. Khan’s office is simultaneously investigating and prosecuting multiple war crimes from around the world, extending from Afghanistan, Kenya, Libya, Georgia to Palestine and Ukraine. </p>
<p>Each investigation requires detailed and thorough investigation before a prosecution can proceed, especially because of the high bar required to obtain a war crimes conviction due to being able to prove the various elements of the crime.</p>
<p>Decisions have to be made as to which of the most serious and grave breaches of international humanitarian law will be prosecuted. That often means decisions are taken to prosecute the most senior military and political leaders because of the clear message that sends to lower ranks that there is no impunity.</p>
<p>There is a growing inevitability that war crimes arising from the Gaza conflict will be prosecuted either nationally or internationally. The wheels of international justice do, however, turn slowly. </p>
<p>Over the past 20 years, vast improvements have been made in accountability for the perpetrators of the most egregious war crimes. Political and military leaders do not enjoy immunity from prosecution. There will eventually be international justice for the victims of war crimes and their families.</p><img src="https://counter.theconversation.com/content/217785/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald Rothwell receives funding from Australian Research Council</span></em></p>War crimes investigations are long, complex and involve international sensitivities. Nonetheless, there is growing inevitability that there will be prosecutions from the Israel-Gaza war.Donald Rothwell, Professor of International Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2181082023-11-20T04:45:09Z2023-11-20T04:45:09ZDavid McBride is facing jailtime for helping reveal alleged war crimes. Will it end whistleblowing in Australia?<p>The long-awaited trial of former Australian Defence Force lawyer David McBride was short-lived.</p>
<p>He stood accused of putting national security at risk by sharing confidential information with journalists, who then reported on <a href="https://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by-australian-special-forces/8466642">alleged Australian war crimes</a> in Afghanistan. </p>
<p>An unexpected strategic move by the Department of Defence succeeded in withholding key documents from the ACT Supreme Court, <a href="https://www.theguardian.com/australia-news/2023/nov/17/australian-military-whistleblower-pleads-guilty-over-afghan-files-leak">all but dismantling</a> McBride’s claim for whistleblower protection.</p>
<p>Having now pleaded <a href="https://www.abc.net.au/news/2023-11-17/military-whistleblower-david-mcbride-trial-leaked-adf-war-crimes/103119808">guilty</a> to unlawfully sharing classified material, what happens to McBride? And what does it say about the state of whistleblower protection laws in this country?</p>
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Read more:
<a href="https://theconversation.com/how-and-why-australian-whistleblowing-laws-need-an-overhaul-new-report-195019">How and why Australian whistleblowing laws need an overhaul: new report</a>
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<h2>The end of a winding road</h2>
<p>David McBride was <a href="https://www.theguardian.com/australia-news/2019/mar/07/whistleblower-charged-with-exposing-alleged-military-misconduct-not-afraid-to-go-to-jail">charged in 2019</a> for disclosing secret military information to two ABC journalists. </p>
<p>His concerns had included Australian soldiers being sent to Afghanistan by a government he believed was more concerned with <a href="https://www.afr.com/policy/foreign-affairs/the-leadership-rewarded-and-encouraged-dishonesty-20231106-p5ehuu">politics</a> than the troops. Interestingly, the court heard last week McBride was also concerned about the <a href="https://www.abc.net.au/news/2023-11-17/military-whistleblower-david-mcbride-trial-leaked-adf-war-crimes/103119808">“over-investigation”</a> of misconduct by special forces. </p>
<p>Instead, that information revealed allegations of war crimes by Australian soldiers in Afghanistan and a <a href="https://www.abc.net.au/news/2020-11-19/afghanistan-war-crimes-report-igadf-paul-brereton-released/12896234">culture of cover-up</a> in the Defence Force. </p>
<p>The ABC used the information to publish the <a href="https://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by-australian-special-forces/8466642">Afghan Files reports</a>. Many allegations were later supported by the inspector-general of the Australian Defence Force in the <a href="https://www.defence.gov.au/about/reviews-inquiries/afghanistan-inquiry">Brereton report</a>. </p>
<p>That report, released in November 2020, recommended the chief of the Defence Force refer 36 matters relating to 25 incidents and involving 19 individuals to the Australian Federal Police for investigation. </p>
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<p>So far, the only charges to have been laid as a result of these investigations are against McBride himself. A brief of evidence was also prepared against ABC journalist Dan Oakes, though the Commonwealth Director of Public Prosecutions <a href="https://www.theguardian.com/media/2020/oct/15/abc-journalist-dan-oakes-will-not-be-charged-over-afghan-files-reporting-afp-says">declined to prosecute</a> Oakes on public interest grounds.</p>
<p>It took four years for McBride’s case to get to court. Delays due to the pandemic and issues around maintaining the secrecy of classified information in court prolonged this process. </p>
<p>Eventually, the Department of Defence claimed public interest immunity over key information. This allows the government to withhold evidence (such as classified material) from the court on public interest grounds. </p>
<p>It means neither party can rely on the information. </p>
<p>This strategic decision meant McBride faced difficulties establishing key aspects of his whistleblower case. This included whether the information revealed relevant wrongdoing, his attempts to tell the department or police about his concerns, or whether the extent of the disclosure was necessary to establish wrongdoing. </p>
<p>On the other hand, the information McBride disclosed was security classified defence material that journalists were not authorised to receive. It is, therefore, not particularly surprising that he pleaded guilty to disclosure offences. </p>
<p>His only hope had been to avoid prosecution by grasping the shield of whistleblower protections.</p>
<h2>What next for McBride?</h2>
<p>McBride will now be sentenced for his offences, likely <a href="https://www.abc.net.au/news/2023-11-17/military-whistleblower-david-mcbride-trial-leaked-adf-war-crimes/103119808">next year</a>.</p>
<p>There is a chance the court will show leniency in sentencing, taking into account the demonstrated public interest in McBride’s disclosures. </p>
<p>This happened in the prosecution of <a href="https://www.abc.net.au/news/2021-06-18/act-witness-k-sentencing-hearing/100226438">Witness K,</a> who conspired to reveal an alleged spying operation in East Timor during oil and gas treaty negotiations.</p>
<p>They were not covered by whistleblower laws because the legislation does not apply to intelligence information, and also pleaded guilty to secrecy offences. </p>
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Read more:
<a href="https://theconversation.com/tax-office-whistleblowing-saga-points-to-reforms-needed-in-three-vital-areas-187608">Tax office whistleblowing saga points to reforms needed in three vital areas</a>
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<p>Alternatively, the judge may not be swayed by the public interest in McBride’s disclosures and McBride could face a lengthy jail term.</p>
<p>The length of any jail term will depend on a number of factors, such as:</p>
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<li><p>the extent of information disclosed</p></li>
<li><p>the deliberate nature of the disclosures</p></li>
<li><p>a need to deter future disclosures of classified defence information. </p></li>
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<h2>What does this mean for whistleblowers?</h2>
<p>The punishment of McBride would have tragic impacts on whistleblowing in Australia. </p>
<p>Far from being a crime, research has identified whistleblowing as “the single <a href="https://parkesfoundation.org.au/activities/orations/2019-oration/">most important way</a> that wrongdoing or other problems come to light in organisations”.</p>
<p>Whistleblowing led not only to the Brereton report, but the Robodebt inquiry, the Banking royal commission, and <a href="https://www.ccc.qld.gov.au/about-us/our-history/fitzgerald-inquiry">Fitzgerald inquiry</a> into police misconduct, to name but a few high profile examples. </p>
<p>The importance of whistleblowing has been recognised in Public Interest Disclosure Acts across Australia, protecting whistleblowers from reprisals, victimisation and prosecution. </p>
<p>The importance of these protections is heightened in recent years by the government’s willingness to prosecute whistleblowers such as <a href="https://www.theguardian.com/australia-news/2023/mar/27/ato-whistleblower-richard-boyle-face-trial-after-immunity-defence-fails">Richard Boyle</a> (who accused the Australian Taxation Office of using <a href="https://www.abc.net.au/news/2018-04-09/whistleblower-exposes-ato-cash-grab-targeting-small-businesses/9633140">aggressive tactics</a> to retrieve money), David McBride, and Witness K for calling out government wrongdoing. </p>
<p>Whistleblower protection law is not perfect. Calls for <a href="https://parkesfoundation.org.au/activities/orations/2019-oration/">its improvement</a> point to a need for greater consistency across private and public sector protections. </p>
<p>They also call for better protection for <a href="http://classic.austlii.edu.au/au/journals/UNSWLawJl/2021/44.html">intelligence and defence</a> whistleblowers, and supports for <a href="https://law.uq.edu.au/files/64972/whistleblowing.pdf">press freedom</a>. </p>
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Read more:
<a href="https://theconversation.com/its-a-new-era-for-australias-whistleblowers-in-the-private-sector-119596">It's a new era for Australia's whistleblowers – in the private sector</a>
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<p>The protections are yet to be tested. McBride’s case would have been the first opportunity to see how courts interpret and apply whistleblower law. </p>
<p>But the government’s decision to withhold information from court stopped these laws from being tested.</p>
<p>It’s easy to see how the government’s reaction to McBride’s decision to blow the whistle will deter future whistleblowers, sending a bad message about transparency, accountability and the importance of calling out wrongdoing by those in positions of power.</p><img src="https://counter.theconversation.com/content/218108/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Ananian-Welsh receives UQ Advancement Funding.</span></em></p>David McBride helped bring about a reckoning with the Australian Defence Force, but came at a legal cost. Will it stop others coming forward?Rebecca Ananian-Welsh, Associate Professor, TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2171572023-11-07T14:30:39Z2023-11-07T14:30:39ZIsrael-Hamas war: there is an important difference between a humanitarian pause and a ceasefire<p>The British Labour Party leader, Keir Starmer, has come under fire from members of his own party for <a href="https://www.independent.co.uk/news/uk/gaza-lucy-powell-israel-hamas-burnley-b2442285.html">refusing to call for a ceasefire in the Hamas-Israel war</a>, instead pushing for a humanitarian pause in the conflict. As a result, <a href="https://www.independent.co.uk/news/uk/politics/labour-keir-starmer-gaza-israel-ceasefire-b2442358.html">50 Labour councillors</a> have quit the party. The controversy raises the question of the <a href="https://www.chathamhouse.org/2023/11/humanitarian-pauses-and-ceasefires-what-are-differences">difference between a humanitarian pause and a ceasefire</a>. </p>
<p>The conflict began in the early morning of <a href="https://theconversation.com/why-did-hamas-attack-and-why-now-what-does-it-hope-to-gain-215248">October 7 2023</a> when armed Hamas fighters launched a surprise attack against Israel, killing at least 1,400 Israelis and taking more than 200 civilians hostage. </p>
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<p>Israel responded to this attack by launching an assault on Gaza beginning with a relentless aerial bombardment and continuing now with a ground offensive. According to the Gaza health ministry, <a href="https://www.nytimes.com/2023/11/06/world/middleeast/gaza-death-toll-israel-hamas-war.html">at least 10,000 people</a> – mainly civilians – have been killed in Gaza in the month since the conflict began, including 4,100 children. </p>
<p>A further 25,000 people have been injured and hundreds of thousands have been displaced within the Gaza Strip, unable to leave because of the blockade imposed by Israel.</p>
<p>Israel’s massive bombing campaign has unsurprisingly led to a disastrous humanitarian situation. The UN secretary general, Antonio Guterres, has described the situation in Gaza as a <a href="https://www.france24.com/en/live-news/20231021-un-chief-urges-ceasefire-to-end-gaza-s-godawful-nightmare">“godawful nightmare”</a>. </p>
<p>This has led the UN and other countries to pressure Israel for a “pause” in the fighting to at least provide temporary humanitarian relief to the people of Gaza.</p>
<p>A number of resolutions calling for a ceasefire or some form of truce have been raised in the UN security council, but on each occasion <a href="https://theconversation.com/the-israel-hamas-war-benefits-russia-but-so-would-playing-peacemaker-216113">they have been vetoed</a> by one or more of the permanent members. A <a href="https://apnews.com/article/un-resolution-vote-israel-hamas-gaza-truce-7eec00b0e28ef2036636b166b48ca030">non-binding resolution</a> passed the UN general assembly on October 27, but this has been ignored by the Israeli government.</p>
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Read more:
<a href="https://theconversation.com/the-israel-hamas-war-benefits-russia-but-so-would-playing-peacemaker-216113">The Israel-Hamas war benefits Russia, but so would playing peacemaker</a>
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<h2>A humanitarian pause</h2>
<p>Gaza has no access to basic humanitarian aid due to the siege and blockade that Israel has inflicted on the strip. Even before the beginning of the war, Gaza had been subject to a <a href="https://theconversation.com/gaza-has-been-blockaded-for-16-years-heres-what-a-complete-siege-and-invasion-could-mean-for-vital-supplies-215359">16-year blockade</a> after Hamas took political control of the strip in June 2007. </p>
<p>After the October 7 Hamas attack, the Israeli defence minister Yoav Gallant ordered a <a href="https://www.aljazeera.com/program/newsfeed/2023/10/9/israeli-defence-minister-orders-complete-siege-on-gaza">“complete siege”</a> on Gaza, which included cutting off supplies of electricity, food, water and gas. These shortages have put the country’s health system at risk – hospitals are now being run on power from electric generators and with severe shortages of <a href="https://www.nytimes.com/2023/11/06/world/middleeast/gaza-hospitals-israel-war.html">vital medical supplies</a>.</p>
<p>According to the UN, a <a href="https://www.unocha.org/sites/unocha/files/dms/Documents/AccessMechanisms.pdf">humanitarian pause</a> is defined as “a temporary cessation of hostilities purely for humanitarian purposes”. It is carried out for a certain period of time and in a specific geographic location. </p>
<p>The pause allows civilians trapped in conflict areas to safely flee, access assistance or receive medical treatment. It also enables the passage of essential supplies such as food, fuel and medicines.</p>
<p>In the context of Gaza, a pause could, for example, enable civilians to <a href="https://edition.cnn.com/2023/11/01/middleeast/rafah-border-crossing-egypt-foreign-nationals-gaza-intl-hnk/index.html">flee the enclave through the Rafah crossing</a> into Egypt. The crossing has been <a href="https://www.reuters.com/world/middle-east/gaza-border-authority-says-rafah-crossing-open-only-listed-egyptians-foreigners-2023-11-06/#">opened for limited periods</a> to allow some evacuees to leave and some supplies to enter. But not enough.</p>
<p>There is <a href="https://www.reuters.com/world/middle-east/un-chief-surprised-by-escalation-israels-bombardment-calls-humanitarian-2023-10-28/">an increasing international consensus</a>, including from countries supporting Israel such as <a href="https://www.nytimes.com/2023/11/02/us/politics/biden-israel-gaza-fighting-pause.html">the US</a>, that at least a humanitarian pause is needed.</p>
<p>Nonetheless, some argue that using a humanitarian pause to provide a temporary halt in the bombing of Gaza is not enough. In a report calling for a general ceasefire, <a href="https://views-voices.oxfam.org.uk/2023/11/why-humanitarian-pause-or-corridors-not-the-answer-in-gaza/">Oxfam said</a> its experience is that such pauses can even put civilians at a greater risk, as there is usually less clarity involved about safe zones and the duration of pauses. </p>
<p>“Rumours and misinformation spreads that this road or that ‘safe zone’ has been declared a demilitarised area, but that is often not true, leaving people walking into a warzone believing it is safe,” the report said. At the beginning of the war, routes that were thought to have been designated safe passages for evacuation from Gaza <a href="https://www.theguardian.com/world/2023/oct/14/gaza-civilians-afraid-to-leave-home-after-bombing-of-safe-routes">were bombed</a>.</p>
<p>As a result, the only true humanitarian solution that appears ideal is a complete ceasefire.</p>
<h2>A ceasefire: roadmap for an end to hostilities</h2>
<p>A <a href="https://casebook.icrc.org/a_to_z/glossary/ceasefire">ceasefire</a> is a political process rather than simply a humanitarian one. It urges parties to come together to find a political solution to the conflict. </p>
<p>It is meant to a be a longer-term process than a “pause” and should apply to the entire geographical area of the conflict. In this case, it would mean the whole of Gaza strip but also all others affected by the conflict such as <a href="https://apnews.com/article/lebanon-israel-hezbollah-civilians-killed-hamas-03a050045c6bf3f87e12086b63b40a1c">the south of Lebanon</a> where Israeli troops are battling with Hezbollah.</p>
<p>In the context of Gaza, a ceasefire would mean a complete stop of fighting on all sides, and the eventual release or exchange of hostages. It would not only mean the end of the bombardment of Gaza, but would also obligate Hamas to stop its attacks on Israel. </p>
<p>It is important to note that, like a pause, a ceasefire is <a href="https://guide-humanitarian-law.org/content/article/3/cease-fire/#">not a permanent peace agreement</a>. That said, the aim would be to create the conditions for a permanent settlement.</p>
<p>Reaching a ceasefire would likely require the involvement of a third party mediator, such as the US, Qatar or Iran. </p>
<p>In the <a href="https://apnews.com/article/israel-palestinian-cease-fire-hamas-caac81bc36fe9be67ac2f7c27000c74b">previous Hamas-Israel war in 2021</a>, both parties eventually managed to reach a ceasefire after 11 days of destruction which left more than 200 people dead. In that conflict, <a href="https://www.aljazeera.com/news/2022/4/26/egypts-role-gaza-more-than-mediator">Egypt</a> played a major role as a mediator. </p>
<p>Since the latest conflict began on October 7, the Israeli prime minister, Benjamin Netanyahu, has resisted all calls for a <a href="https://www.aljazeera.com/news/2023/11/3/blinken-discusses-humanitarian-pauses-as-israel-encircles-gaza-city">humanitarian pause</a> and a <a href="https://www.aljazeera.com/news/liveblog/2023/10/30/israel-hamas-war-live-palestinian-death-toll-gaza-rises-above-8000">ceasefire</a>.</p>
<p>But the US and other allies of Israel continue to press Netanyahu for at least a pause in Israel’s assault. He insists that while “<a href="https://www.reuters.com/world/middle-east/israel-open-little-pauses-gaza-fighting-netanyahu-says-2023-11-07/#:%7E:text=Asked%20if%20he%20was%20open,we've%20had%20them%20before.">little pauses</a>” might be arranged to allow for the exit of hostages or to facilitate the entry of humanitarian aid, a longer halt in hostilities is not possible until all hostages taken by Hamas are released. And so the killing continues</p><img src="https://counter.theconversation.com/content/217157/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Malak Benslama-Dabdoub does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>At present the Israeli prime minister, Benjamin Netanyahu, has ruled out a ceasefire but may allow ‘little pauses’.Malak Benslama-Dabdoub, Lecturer in law, Royal Holloway University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2160932023-10-23T16:41:14Z2023-10-23T16:41:14ZWhere the ICC stands if war crimes are committed on either side of the Israel-Hamas war<p>Since Hamas launched its offensive in Israel on October 7 2023, drawing a swift and emphatic response from the Netanyahu government, at least 1,400 people in Israel and 5,000 people in Palestine <a href="https://www.theguardian.com/world/live/2023/oct/23/israel-hamas-war-live-updates-airstrikes-gaza-aid-rafah-border-crossing-egypt-white-house-joe-biden-latest-news">have been killed</a>. Many of these have been civilians – hundreds of Israelis at a music festival near the Re'im kibbutz, close to the border of Gaza. Hundreds of Palestinians were killed by an explosion at the Al-Ahli Baptist Hospital in Gaza. </p>
<p>While the first atrocity was committed by Hamas fighters, responsibility for the hospital blast has yet to be determined. Investigators will eventually attempt to piece together the truth about both atrocities. But will anyone stand trial for war crimes?</p>
<p>The International Criminal Court has the jurisdiction to investigate potential war crimes in Israel and Palestine. Palestine <a href="https://www.bbc.co.uk/news/world-middle-east-32144186">joined the court in 2015</a>. In 2021, the then prosecutor, Fatou Bensouda, announced the opening of an <a href="https://www.icc-cpi.int/palestine">investigation into crimes</a> alleged to have been committed since June 13 2014 in the West Bank, Gaza Strip and East Jerusalem, the date when Palestine declared acceptance of ICC jurisdiction. Between then and early 2023, <a href="https://www.ochaopt.org/data/casualties">more than 3,000 people have been killed in Palestine, and more than 200 in Israel</a>.</p>
<h2>What the ICC can do</h2>
<p>Give the current situation in Israel and Gaza, the ICC could take two measures. Tirana Hasan, the director of global rights campaigner Human Rights Watch, has written to <a href="https://www.hrw.org/news/2023/10/13/israel/palestine-letter-prosecutor-international-criminal-court">Karim Khan, the ICC prosecutor</a>, calling on the ICC to explicitly warn Hamas and Israel against committing crimes. </p>
<p>Bensouda <a href="https://www.aljazeera.com/features/2023/10/18/could-a-warning-by-the-icc-chief-prosecutor-deter-war-crimes-in-gaza">did something similar in 2018</a> when she warned Israel not to forcefully evict a Palestinian community from Khan al-Ahmar, a village in the occupied West Bank. She said the eviction could constitute a war crime, as defined in article 8.2 of the <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">ICC Treaty</a>, which prohibits the deportation or transfer of all or parts of the population of the occupied territory.
Combined with pressure from local and international communities, a warning of this kind could have a <a href="https://www.aljazeera.com/news/2018/10/21/israel-delays-palestinian-village-khan-al-ahmar-demolition-order">temporary effect</a>, as it did in this case. But, in the event, even though <a href="https://www.gov.uk/government/news/diplomatic-missions-visit-khan-al-ahmar-palestinian-community-threatened-with-demolition">diplomats from many states</a> have tried to discourage the eviction, the Israeli government still wants to proceed.</p>
<p>Second – and more importantly – Khan told Reuters press agency on October 12 that the actions of both Hamas militants in Israel and Israeli forces in the Gaza Strip <a href="https://www.reuters.com/world/middle-east/hamas-attack-would-fall-under-jurisdiction-war-crimes-court-prosecutor-2023-10-12/">fall under the jurisdiction of the ICC</a>, even though Israel is not a member state. “It’s horrendous what’s going on, what we’re seeing on our television screens. There has to be a legal process to determine criminal responsibility,” he added.</p>
<h2>Challenges and investigations</h2>
<p>There are three issues that could hinder an ICC investigation: a lack of cooperation by Israel, a lack of financial support from member states and pressure by countries which feel a solution would be easier to achieve without the involvement of the ICC and the prospect of war crimes charges being levelled. This pressure would be dangerous for the ICC’s credibility. It is important for justice and politics to remain independent.</p>
<p>The UN’s commission of inquiry, mandated by the UN Human Rights Council, has been collecting evidence of potential war crimes committed by all sides in Israel and Occupied Palestinian Territories since October 7.</p>
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<img alt="A young man stands in the rubble of the Khan Yunis municipality building after an Israeli air strike, building in Gaza, October 2023." src="https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555374/original/file-20231023-21-5ulwve.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Devastation: a young man searches in the ruins of the Khan Yunis municipality building after an Israeli air strike,</span>
<span class="attribution"><span class="source">Anas-Mohammed/Shutterstock</span></span>
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<p>It has already said that there is <a href="https://www.ohchr.org/en/press-releases/2023/10/commission-inquiry-collecting-evidence-war-crimes-committed-all-sides-israel">evidence that war crimes have been committed</a>, both by Palestinian militants, gunning down civilians and taking hostages in Israel, and by Israel’s response by putting Gaza in a state of siege, which it has described as appearing to be “collective punishment”.</p>
<p>Human Rights Watch <a href="https://www.hrw.org/news/2023/10/12/israel-white-phosphorus-used-gaza-lebanon">has reported</a> “multiple airbursts of artillery-fired white phosphorus over the Gaza City port and two rural locations along the Israel-Lebanon border”, which it has attributed to Israel. This could potentially be a war crime, but Israel denies the allegation. </p>
<p>On the Palestinian side, the ICC could investigate Hamas, Islamic Jihad or any of the armed militant factions for allegations of war crimes in Palestine or Israel. On the Israeli side, the ICC could investigate the leader of the government, Benjamin Netanyahu, and other officials who could have committed crimes in Palestine. Back in 2019, Netanyahu <a href="https://www.theglobeandmail.com/politics/article-netanyahu-trudeau-icc-probe-israel-alleged-war-crimes-palestinians/">argued against</a> investigating war crimes allegations against Israel, asserting that Palestine did not meet the criteria of statehood to accede to the ICC treaty.</p>
<p>States party to the ICC could call for Hamas and the Israeli government to respect international law. But this has already proved fruitless in the UN security council. The security council tried but <a href="https://www.diplomatie.gouv.fr/en/country-files/israel-palestinian-territories/news/2023/article/israel-gaza-france-regrets-the-failure-of-the-draft-resolution-put-forward-by">failed on October 18</a> to pass a resolution which would have enabled the the condemnation of the terrorist attacks by Hamas and made a demand for the hostages’ release. </p>
<p>It would also have called for compliance by all with international humanitarian law, humanitarian pauses would have provided for the urgent establishment of full, safe and unhindered humanitarian access for the UN, Red Cross and humanitarian organisations to Gaza to enable basic necessities to be supplied to the civilian population.</p>
<p>France and China voted in favour of this resolution, but the UK abstained with Russia, and the US <a href="https://www.reuters.com/world/us-vetoes-un-security-council-action-israel-gaza-2023-10-18/">exercised its veto</a>. However, <a href="https://legal.un.org/icc/statute/english/rome_statute(e).pdf">article 25 of the ICC treaty</a> refers to the possibility of investigating people for <a href="https://www.ohchr.org/sites/default/files/Documents/Issues/Business/Consultation2010/EarthRightsInternational.pdf">aiding and abetting</a> others to commit crimes. Any leader supporting leaders or people who commit war crimes could be held accountable too.</p>
<h2>Is the ICC gaining prominence?</h2>
<p>The ICC has 123 state signatories. It is now investigating crimes potentially committed in Ukraine by Russia, a permanent member of the security council. As a result, Vladimir Putin could not attend the 2023 Brics summit in South Africa for fear of arrest. </p>
<p>There have also been <a href="https://foreignpolicy.com/2023/04/11/russia-putin-ukraine-war-icc-united-states-crimes-arrest-warrant/">recent calls</a> for the US to ratify the ICC treaty. Armenia is the latest state about to join the ICC. International criminal law is gaining prominence, and awareness of this fact could have a <a href="https://www.tandfonline.com/doi/full/10.1080/01436597.2013.800737">deterrent effect</a> on any leader or person worldwide considering committing war crimes.</p><img src="https://counter.theconversation.com/content/216093/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine Gegout does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The International Criminal Court has a range of options for both deterring and investigating war crimes in the current conflict.Catherine Gegout, Associate Professor in International Relations, University of NottinghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2157052023-10-19T19:03:42Z2023-10-19T19:03:42ZCan Israel and Hamas be held to account for alleged crimes against civilians?<p><a href="https://www.redcross.org.au/ihl/">International humanitarian law</a> – the law of armed conflict – aims to constrain how wars are fought. It is designed to protect noncombatants and limit the means of warfare. </p>
<p>As each hour brings news of further horror in the Israel-Hamas conflict, what role should international law be playing? And does it actually have any capacity to constrain the behaviour of the combatants?</p>
<h2>A humanitarian nightmare is unfolding</h2>
<p>On <a href="https://edition.cnn.com/2023/10/16/middleeast/israel-hamas-gaza-war-explained-week-2-mime-intl/index.html">October 7</a>, the Hamas militant group launched thousands of rockets against Israel in advance of a ground attack. Militants <a href="https://abcnews.go.com/International/live-updates/israel-gaza-hamas/?id=103804516#:%7E:text=ABC%20News%20Chief%20Global%20Affairs,war%20in%20Israel%20and%20Gaza.&text=At%20least%201%2C400%20people%20have,7%2C%20Israeli%20authorities%20said.">killed</a> more than 1,400 people and wounded 3,400 others in towns and kibbutzim across southern Israel. It was the <a href="https://theconversation.com/deadliest-day-for-jews-since-the-holocaust-spurs-a-crisis-of-confidence-in-the-idea-of-israel-and-its-possible-renewal-215507">deadliest day</a> for Jewish people since the Holocaust.</p>
<p>Most of those killed were civilians, including many <a href="https://abcnews.go.com/International/horror-israeli-authorities-show-footage-hamas-atrocities-reporters-notebook/story?id=104015431#:%7E:text=It%20was%20part%20of%20the,injured%20in%20Israel%2C%20authorities%20said.">children</a> who were shot, blown up or burned to death. Hundreds of young people were also <a href="https://www.washingtonpost.com/world/2023/10/08/israel-festival-attack-gaza-militants/">massacred</a> at a music festival, and Hamas took around 200 <a href="https://www.reuters.com/world/middle-east/former-hamas-chief-meshaal-says-israeli-captives-include-high-ranking-officers-2023-10-16/">hostages</a> back to Gaza. </p>
<p>Israel is responding to this attack with <a href="https://abcnews.go.com/International/live-updates/israel-gaza-hamas/?id=103804516#:%7E:text=ABC%20News%20Chief%20Global%20Affairs,war%20in%20Israel%20and%20Gaza.&text=At%20least%201%2C400%20people%20have,7%2C%20Israeli%20authorities%20said.">airstrikes</a>, which have to date <a href="https://www.wsj.com/livecoverage/israel-hamas-war-gaza-palestinians/card/latest-death-tolls-in-gaza-and-israel-xJRhBt04VQMocRuYUtsA">killed</a> at least 4,000 people in Gaza and injured thousands more. The vast majority of these casualties are Palestinian civilians.</p>
<p>Israel has also rapidly mobilised around <a href="https://www.washingtonpost.com/world/2023/10/10/israel-military-draft-reservists/">360,000 reservists</a> in preparation for an anticipated ground offensive on Gaza. </p>
<p>In recent days, a blast at a <a href="https://www.nytimes.com/2023/10/17/world/middleeast/gaza-hospital-explosion-israel.html">Gaza hospital</a> killed hundreds, including patients and displaced people seeking sanctuary. Hamas and several Arab states have <a href="https://www.theguardian.com/world/2023/oct/18/israel-faces-blame-from-regional-allies-over-gaza-hospital-deaths">blamed</a> Israel for the explosion, while Israel has <a href="https://www.nytimes.com/2023/10/17/world/middleeast/islamic-jihad-gaza-hospital-israel.html">blamed</a> Palestinian Islamic Jihad. </p>
<p>The situation in Gaza is dire for people with urgent needs, including <a href="https://www.abc.net.au/news/2023-10-18/israel-gaza-war-live-updates-october-18/102989182?utm_campaign=abc_news_web&utm_content=link&utm_medium=content_shared&utm_source=abc_news_web#live-blog-post-55243">5,000 women</a> due to give birth this month and <a href="https://www.nytimes.com/2023/10/16/world/middleeast/gaza-evacuation-twin-babies-hospital.html#:%7E:text=The%20babies%2C%20Nuha%20and%20Fatin,of%20an%20Israeli%20ground%20invasion.">newborn babies</a> whose families cannot find drinking water to prepare formula.</p>
<p>Meanwhile, Israel has <a href="https://www.theguardian.com/world/2023/oct/12/no-power-water-or-fuel-to-gaza-until-hostages-freed-says-israeli-minister">cut off</a> water, electricity and fuel supplies to Gaza and ordered a <a href="https://theconversation.com/gaza-is-being-strangled-why-israels-evacuation-order-violates-international-law-215787">total siege</a> of the territory. Israel has also ordered residents of northern Gaza to <a href="https://www.hrw.org/news/2023/10/16/why-israels-gaza-evacuation-order-so-alarming">evacuate</a> to the south. Aid agencies have been unable to provide desperately needed <a href="https://time.com/6324539/israel-gaza-humanitarian-aid-egypt-border/">humanitarian assistance</a> to civilians through the border crossing with Egypt. </p>
<p>Prior to this latest horrific escalation, Gaza was already entrenched in a <a href="https://theconversation.com/gaza-has-been-blockaded-for-16-years-heres-what-a-complete-siege-and-invasion-could-mean-for-vital-supplies-215359">humanitarian crisis</a>. The situation now is beyond comprehension. </p>
<p><a href="https://www.abc.net.au/listen/programs/radionational-breakfast/gaza-610/102983118">Léo Cans</a>, the head of mission for Doctors Without Borders in Palestine, said hospitals are being overwhelmed and hundreds will die without electricity being restored: </p>
<blockquote>
<p>This is something that is known and could be prevented just by letting fuel and supplies inside Gaza. What is ahead of us is beyond words […] at the end of the road it’s a big wall, and this big wall is full of dead people.</p>
</blockquote>
<h2>Principles governing the conduct of war</h2>
<p>International humanitarian law is a pragmatic body of law. Its existence acknowledges the inevitability of armed conflict and it aims to mitigate war’s impact on people. </p>
<p>International humanitarian law is not, in itself, concerned with the justifications for why combatants engage in war. It applies even in situations where a state is entitled to act in self-defence under broader international law.</p>
<p>We are witnessing gross violations of fundamental humanitarian law principles in the conflict. Here are some examples:</p>
<p><strong>Distinction between civilians and combatants</strong></p>
<p>Attacks are considered <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51">unlawful</a> if they are:</p>
<ul>
<li><p>directed specifically against civilians </p></li>
<li><p>launched indiscriminately without distinction between civilians and combatants</p></li>
<li><p>or directed at military targets but anticipated to cause harm to civilians disproportionate to the military advantage being sought.</p></li>
</ul>
<p><strong>Methods of warfare</strong></p>
<p>It is <a href="https://casebook.icrc.org/law/conduct-hostilities#iii_1">unlawful</a> to conduct war in a manner that causes unnecessary suffering. Attacks targeting civilians are fundamentally unnecessary and, therefore, illegal.</p>
<p><strong>Collective punishment</strong></p>
<p>The fourth Geneva Convention prohibits <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-33">collective punishment</a>:</p>
<blockquote>
<p>No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.</p>
</blockquote>
<p>This prohibition reflects the idea of <a href="https://guide-humanitarian-law.org/content/article/3/collective-punishment/">individual criminal responsibility</a> under international criminal law. Prosecutions for breaches of humanitarian law are directed towards individuals who can be proven responsible, rather than against states or populations. </p>
<p><strong>Humanitarian protection</strong></p>
<p>Common Article 3 of the Geneva Conventions requires <a href="https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm">humane protection</a> for all people in enemy hands. It prohibits murder and hostage-taking. It also requires the provision of humanitarian assistance to all people without distinction. </p>
<p><strong>Obligations of occupying powers</strong></p>
<p>It is arguable Israel is a de facto occupying power of the Gaza Strip because it has such a <a href="https://theconversation.com/gaza-is-being-strangled-why-israels-evacuation-order-violates-international-law-215787">high level of control</a> over people’s lives. For example, it has the ability to shut off supplies of essential life services. The argument Israel is occupying Gaza will be strengthened should Israel launch a ground invasion. </p>
<p>As such, the rules of international humanitarian law on occupiers are also relevant. These include an obligation to <a href="https://ihl-databases.icrc.org/en/ihl-treaties/hague-conv-iv-1907/regulations-art-43#:%7E:text=Regulations%3A%20Art.-,43,in%20force%20in%20the%20country.">protect</a> civilians from attacks and <a href="https://humanrights.gov.au/our-work/commission-general/international-covenant-civil-and-political-rights-human-rights-your#:%7E:text=opinions%20without%20interference.-,2.,other%20media%20of%20his%20choice.">respect their human rights</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-the-laws-of-war-apply-to-the-conflict-between-israel-and-hamas-215493">How the 'laws of war' apply to the conflict between Israel and Hamas</a>
</strong>
</em>
</p>
<hr>
<h2>Hamas and humanitarian law</h2>
<p>International humanitarian law applies to all combatants, whether they are state or non-state actors. UN independent experts say Hamas has clearly committed <a href="https://www.ohchr.org/en/press-releases/2023/10/israeloccupied-palestinian-territory-un-experts-deplore-attacks-civilians">war crimes</a>, including the murders and hostage-taking of Israeli civilians. </p>
<p>Hamas also put Palestinian civilians in harm’s way by <a href="https://www.reuters.com/world/middle-east/hamas-tells-gaza-residents-stay-home-israel-ground-offensive-looms-2023-10-13/#:%7E:text=Eyad%20Al%2DBozom%2C%20spokesman%20for,your%20homes%2C%20and%20your%20places.">telling them</a> not to evacuate to southern Gaza, as ordered by Israel. The group has a history of using civilians as <a href="https://theconversation.com/how-the-laws-of-war-apply-to-the-conflict-between-israel-and-hamas-215493">human shields</a> as a <a href="https://stratcomcoe.org/cuploads/pfiles/hamas_human_shields.pdf">strategic tool</a> in conflicts with Israel.</p>
<p>However, holding Hamas accountable for violating international humanitarian law is very challenging. As a non-state actor, Hamas is not a member of forums like the United Nations, where pressure may be brought to bear on member states. </p>
<p>If individual Hamas militants are apprehended, they could be charged with <a href="https://www.thenewhumanitarian.org/interview/2023/10/17/how-have-israel-and-hamas-broken-laws-war">war crimes</a> and tried in Israeli courts or the International Criminal Court. Even though Hamas is a non-state actor, <a href="https://www.icc-cpi.int/victims/state-palestine">Palestine</a> has accepted the court’s jurisdiction.</p>
<p>In fact, the International Criminal Court opened an <a href="https://www.lawfaremedia.org/article/where-does-the-icc-palestine-investigation-stand">investigation</a> into alleged war crimes in Palestine in 2021. The current Gaza conflict would fall within the court’s mandate and could lead it to direct greater energy to that ongoing investigation. </p>
<p>The court’s chief prosecutor, Karim Khan, said on October 13: </p>
<blockquote>
<p>We have jurisdiction for any Rome Statute crimes […] committed by Palestinians in Israel and also we have clear jurisdiction for any crimes committed by the forces of Israel in Palestine.</p>
</blockquote>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1712594773612380395"}"></div></p>
<h2>Israel and humanitarian law</h2>
<p>Israel and its allies also have a complex relationship with international humanitarian law. </p>
<p>One key issue is Israel’s right to self-defence in response to the October 7 attack by Hamas. International law confirms a state may use force to <a href="https://casebook.icrc.org/a_to_z/glossary/self-defence#:%7E:text=Self%2Ddefense%20in%20international%20law,Charter%20and%20customary%20international%20law.">defend</a> itself in response to an armed attack. Israel, the United States and other allies <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/10/10/remarks-by-president-biden-on-the-terrorist-attacks-in-israel-2/">contend</a> the Hamas attack triggered Israel’s <a href="https://www.foreignminister.gov.au/minister/penny-wong/speech/speech-senate-hamas-attacks-israel-senate-motion-parliament-house">right to self-defence</a>.</p>
<p>But there is a distinction to be drawn between a state’s right to self-defence and what that right permits, in the sense of how war is conducted. </p>
<p>For example, UN independent experts have <a href="https://www.ohchr.org/en/press-releases/2023/10/israeloccupied-palestinian-territory-un-experts-deplore-attacks-civilians">condemned</a> Israel’s “indiscriminate military attacks” against Palestinian civilians:</p>
<blockquote>
<p>This amounts to collective punishment. There is no justification for violence that indiscriminately targets innocent civilians, whether by Hamas or Israeli forces. This is absolutely prohibited under international law and amounts to a war crime.</p>
</blockquote>
<p>Neither <a href="https://arabcenterdc.org/resource/the-international-criminal-courts-failure-to-hold-israel-accountable/">Israel</a> nor the <a href="https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states">United States</a> is a party to the International Criminal Court. Neither state would accept the court’s jurisdiction over its nationals. Indeed, the United States has <a href="https://www.state.gov/the-united-states-opposes-the-icc-investigation-into-the-palestinian-situation/">condemned</a> the court’s decision to open its investigation into alleged war crimes in Palestine.</p>
<p>In time, the court may seek to hold Israeli nationals accountable for war crimes, but its capacity to do so seems very limited. </p>
<h2>What about the United Nations?</h2>
<p>UN Secretary-General Antonio Guterres has <a href="https://www.voanews.com/a/un-s-guterres-denounces-collective-punishment-of-palestinians/7315616.html">called</a> for an immediate ceasefire.</p>
<p>He said the grievances of the Palestinian people after more than 50 years of occupation do not “justify the acts of terror committed by Hamas”. And he said the Hamas attack on October 7 does not “justify the collective punishment of the Palestinian people”. </p>
<p>UN human rights chief Volker Türk has also <a href="https://www.ctvnews.ca/world/un-human-rights-lead-warns-of-consequences-for-breaching-humanitarian-law-amid-israel-hamas-war-1.6605453">warned</a> all parties that violations of humanitarian law will have consequences, and those who commit war crimes will be held accountable.</p>
<p>But the <a href="https://www.un.org/securitycouncil/#:%7E:text=The%20Security%20Council%20has%20primary,to%20comply%20with%20Council%20decisions.">UN Security Council</a>, which is charged with maintaining international peace and security, has yet to agree on a <a href="https://news.un.org/en/story/2023/10/1142467">statement</a> on the conflict. </p>
<p>The <a href="https://reliefweb.int/report/occupied-palestinian-territory/4-members-favour-5-against-security-council-rejects-russian-federations-resolution-calling-immediate-humanitarian-ceasefire-israel-palestine-crisis">debate</a> in the council since the latest escalation in this perpetual conflict demonstrates the deep diplomatic fault lines between the key global players and the warring parties. </p>
<p>At this point, a sad reality is that international law and global institutions can do little to constrain the actions of the combatants on both sides or provide assistance to the millions at grave risk of harm.</p><img src="https://counter.theconversation.com/content/215705/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The UN secretary-general said neither side is justified in its actions against civilians. But holding them accountable for war crimes is extremely difficult.Amy Maguire, Associate Professor in Human Rights and International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2157102023-10-16T19:43:42Z2023-10-16T19:43:42ZHamas-Israeli conflict: what’s at stake for Egypt<p><em>As the Israeli-Hamas crisis continues, a great deal of focus is shifting to Egypt. Egypt shares a border with both Israel and Gaza – the narrow strip of Palestinian territory which is currently <a href="https://www.amnesty.org/en/latest/news/2023/10/israel-opt-israel-must-lift-illegal-and-inhumane-blockade-on-gaza-as-power-plant-runs-out-of-fuel/">under blockade</a> following the violent attack against Israel by Hamas, a radical Islamist organisation that has controlled Gaza <a href="https://www.bbc.com/news/world-middle-east-67039975">since 2007</a>.</em></p>
<p><em>Moina Spooner, from The Conversation Africa, asked Ofir Winter, <a href="https://www.inss.org.il/person/winterofir/">who studies</a> Egyptian politics and the Arab-Israeli conflict, to provide insights into what the new war means for Egypt and the role it plays.</em></p>
<h2>What’s been the relationship between Egypt and Israel and Palestine in the past?</h2>
<p>Egypt performs a balancing act in managing relations between Israel and Palestine. </p>
<p>Egypt openly expresses <a href="https://english.aawsat.com/arab-world/4598426-sisi-egypt-won%E2%80%99t-allow-termination-palestinian-cause-expense-other-parties">its commitment</a> to the Palestinian cause. This is because Palestine’s quest for self-determination is a central Arab and Islamic cause. Also, due to geographical proximity, any escalation in Gaza will have a direct impact on Egypt’s national interests.</p>
<p>This position is reflected in its reaction to the outbreak of violence between Israel and Hamas. Following the deadly killings and kidnappings of innocent Israeli civilians by Hamas <a href="https://apnews.com/article/israel-palestinians-gaza-hamas-rockets-airstrikes-tel-aviv-11fb98655c256d54ecb5329284fc37d2">earlier this month</a>, Egyptian <a href="https://english.ahram.org.eg/NewsContent/1/1234/510287/Egypt/Foreign-Affairs/Egyptian-MPs-condemn-Israeli-aggression-on-Gaza,-s.aspx">members of parliament</a> and <a href="https://www.youtube.com/watch?v=W3sDlhRckI0">state-owned media</a>, have portrayed Israel as the aggressor and Hamas as the victim.</p>
<p>In accordance with <a href="https://www.aljazeera.com/news/2022/4/26/egypts-role-gaza-more-than-mediator">past actions</a>, Egypt can be expected to take several steps to demonstrate its solidarity with the Palestinians. These include; the provision of humanitarian assistance to Gaza, evacuation of some wounded to Egyptian hospitals, and increased role in mediation efforts for a ceasefire. These steps make Egypt a key actor in the conflict and would help strengthen its regional and international standing.</p>
<p>However, Egypt also doesn’t want to alienate Israel. Ultimately, they have a mutual interest: they do not want to see the resurgence of political Islam in the region. This is linked to Egypt’s own experience of Islamist organisations.</p>
<p>The current regime in Egypt <a href="https://www.nytimes.com/2013/07/04/world/middleeast/egypt.html">ousted</a> the Muslim Brotherhood in 2013 and outlawed them. The Brotherhood is a transnational Islamist organisation, <a href="https://www.cfr.org/backgrounder/egypts-muslim-brotherhood">founded</a> in Egypt in 1928. It’s aims are to promote social and political change in Muslim-majority countries. After the Arab Spring in 2011, the Brotherhood held power in Egypt for one year <a href="https://www.aljazeera.com/news/2012/6/24/celebration-in-egypt-as-morsi-declared-winner">before being ousted</a>. </p>
<p>Hamas is an offspring of the Muslim Brotherhood, which is why Egypt perceives it as a threat. </p>
<p>But despite Egypt’s suspicious approach to Hamas, since 2017 there’s been <a href="https://www.inss.org.il/wp-content/uploads/2018/01/GazaCrisis_ENG-129-140.pdf">an understanding</a> between the two: Hamas’ cooperation in fighting terrorism in Sinai would be met with an easing of the Egyptian blockade on Gaza.</p>
<p>Though the relations between Egypt and Israel are cooperative, they’re not warm. Egypt signed a <a href="https://history.state.gov/milestones/1977-1980/camp-david">peace agreement with Israel in 1979</a>. And, over the past decade, Israel has positioned itself as a key political, security and economic partner to Egypt. </p>
<p>In recent years, Egypt has been a <a href="https://carnegieendowment.org/sada/85037">mediator</a> between Israel and Hamas and in the reconstruction efforts of Gaza. This is because of its proximity to Gaza and the fact that it controls the Rafah crossing – the only border with the Gaza strip that’s not under Israeli control. </p>
<p>But Egypt’s involvement with Gaza has certain lines that won’t be crossed. </p>
<p>There will be no Egyptian military involvement against Israel for the benefit of the Palestinians – a policy which primarily <a href="https://www.state.gov/secretary-antony-j-blinken-and-egyptian-president-abdel-fattah-el-sisi-before-their-meeting/">derives</a> from Egypt’s commitment to the 1979 peace agreement between Israel and Egypt.</p>
<p>There will also be no sanctioned mass entry of Gazans into Egypt, <a href="https://sis.gov.eg/Story/187293/Sisi-Palestinians-must-'remain-on-their-land'%2C-contacts-ongoing-for-de-escalation-in-Gaza-war?lang=en-us">according to</a> declarations by President Abdel Fattah el-Sisi and other Egyptian officials. </p>
<h2>How does the current crisis affect Egypt?</h2>
<p>Egypt has so far rejected the idea of displaced Palestinians moving into Sinai. But there is the possibility that a large number of Gazans will seek entry. This is separate to the Gaza residents with foreign citizenship who are already <a href="https://www.bbc.com/news/live/world-middle-east-67119233">waiting at the border</a> to cross. </p>
<p>Egypt is against allowing Gazans crossing the border in large numbers because it opposes any encroachment on its sovereignty in the Sinai Peninsula. Its major concern is that displaced Palestinians may establish a permanent residence in its territory, potentially undermining the already delicate security and economic situation.</p>
<p>The situation also poses a large security risk to Egypt.</p>
<p>First, border breaches by refugees from Gaza, some of whom may be armed individuals affiliated with Hamas or other radical groups, could export instability to Sinai. For Egypt, there is a danger that there could be more terrorist attacks and instability as there were in Sinai before the 2017 understanding with Hamas. Some of those attacks <a href="https://www.euromesco.net/wp-content/uploads/2018/02/EuroMeSCo36-Geopolitics-of-Violent-Extremism.-The-Case-of-Sinai.pdf">were carried out</a> by well-armed and trained Gaza-based militant cells.</p>
<p>Second, a massive blow to Hamas may lead to a lack of governance, chaos, and instability in Gaza. This will cause instability and could give rise to the smuggling of weapons and fighters along Egypt’s border with the Gaza Strip.</p>
<p>The other security threat is that terrorist acts could be launched from Sinai into Israel by Palestinian militant groups putting the delicate relationship between Israel and Egypt at risk.</p>
<h2>How has Egypt reacted and what should it do next?</h2>
<p>Since the outbreak of the war, Egypt has been working to de-escalate the situation in Gaza and has been conducting talks with Israel, Hamas, the Palestinian Authority, the US, Iran, and other regional and international players. </p>
<p>The Arab League has already convened in Cairo, and an international conference in Egypt is expected to take place this weekend. <a href="https://www.aljazeera.com/news/2023/10/16/egypts-tricky-calculation-as-israels-assault-on-gaza-continues">Egypt is also seeking</a> to establish a humanitarian corridor for the delivery of food and medicine to the Gaza Strip. </p>
<p>At this stage, Egypt has more control than most other regional international players over the outcomes of the conflict, as well as plenty of interests. </p>
<p>The outcome of the conflict could deliver some benefits. For example, Egypt <a href="https://www.jpost.com/middle-east/article-745511">desires</a> the return of the Palestinian Authority, who is more willing to engage in diplomacy and negotiations, as the governing authority in Gaza. A scenario where Hamas is significantly weakened could pave the way for new developments, possibly including the gradual return of the Palestinian Authority. In this case, Egypt and Israel could find a more pragmatic neighbour across their borders. </p>
<p>If Hamas loses power at the end of the war, Egypt will most probably be involved in the government transition phase. As in the <a href="https://apnews.com/article/hamas-abdel-fattah-el-sissi-middle-east-egypt-africa-e016845c51bf45d9652fbe41ed09dab6">past few years</a>, Egypt is expected to be the conduit through which aid and funds from Arab countries and the international community will be transferred into Gaza, participate in its reconstruction process, and be a dominant influencing factor on shaping its future.</p><img src="https://counter.theconversation.com/content/215710/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ofir Winter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Egypt performs a balancing act in managing relations with Israel and Palestine.Ofir Winter, Senior Researcher, Institute for National Security Studies, Tel Aviv UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2154932023-10-15T14:19:03Z2023-10-15T14:19:03ZHow the ‘laws of war’ apply to the conflict between Israel and Hamas<figure><img src="https://images.theconversation.com/files/553788/original/file-20231014-23-50yq19.jpg?ixlib=rb-1.1.0&rect=24%2C106%2C5439%2C3530&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Warring parties are duty-bound to minimize civilian casualties.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/palestinian-citizens-inspect-damage-to-their-homes-caused-news-photo/1735465776?adppopup=true">Ahmad Hasaballah/Getty Images</a></span></figcaption></figure><p><em>The killing of Israeli civilians by Hamas and retaliatory airstrikes on the densely populated Gaza Strip by Israel raises <a href="https://www.theguardian.com/law/2023/oct/12/what-are-the-rules-of-war-and-how-do-they-apply-to-the-israel-gaza-conflict">numerous issues under international law</a>.</em></p>
<p><em>Indeed, President Joe Biden <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/10/10/remarks-by-president-biden-on-the-terrorist-attacks-in-israel-2/">made express reference to the “laws of war</a>” in comments he made at the White house on Oct. 10, 2023, noting that while democracies like the U.S. and Israel uphold such standards, “terrorists” such as Hamas “purposefully target civilians.” Speaking the same day, the European Union’s top diplomat Josep Borrell condemned Hamas’ attack but also suggested that Israel was <a href="https://www.euractiv.com/section/global-europe/news/eus-borrell-israel-has-right-to-self-defence-but-some-actions-counter-international-law/">not acting in accordance with international law</a> by cutting water, electricity and food to civilians in Gaza.</em></p>
<p><em>But international law and the very nature of the conflict itself – along with the status of the two sides involved – is a complex area. The Conversation turned to <a href="https://www.wcl.american.edu/community/faculty/profile/goldman/bio">Robert Goldman</a>, an expert on the laws of war at American University Washington College of Law, for guidance on some of the issues.</em></p>
<h2>What are the ‘laws of war’?</h2>
<p>The laws of war, also known as International Humanitarian Law (IHL), consist of the <a href="https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm">four 1949 Geneva Conventions</a>, their two Additional Protocols of 1977, the <a href="https://casebook.icrc.org/a_to_z/glossary/hague-conventions">Hague Conventions of 1899 and 1907</a>, as well as certain weapons conventions.</p>
<p>Simply put, these instruments seek to spare civilians and others who are no longer active combatants from the effects of hostilities by placing restrictions and prohibitions on the conduct of warfare.</p>
<p>It is important to understand that modern IHL is not concerned with the reasons for, or the legality of, going to war. Rather, that is governed by the <a href="https://www.un.org/en/about-us/un-charter/full-text">United Nations Charter</a> and a member state’s own practice.</p>
<p>It is also important to note that violations of the laws of war are <a href="https://www.axios.com/2022/03/22/russia-putin-war-crimes-icc-ukraine">notoriously hard to prosecute</a> and can be frustrated by lack of cooperation by the parties involved. </p>
<h2>What is the nature of the conflict between Israel and Hamas?</h2>
<p>The answer to this question is by no means clear.</p>
<p>Many humanitarian law experts would argue that Hamas and Israel are engaged in what is known as a “<a href="https://www.undrr.org/understanding-disaster-risk/terminology/hips/so0002">non-international armed conflict</a>.” In other words, it would be classified the same way as a civil war that pits the armed forces of a state against an armed non-state actor, rather than an international conflict between two or more sovereign states.</p>
<p>If that were the case, the conflict would not be governed by the entirety of the laws of war, but instead by the more limited <a href="https://archive.nytimes.com/www.nytimes.com/ref/us/AP-Guantanamo-Geneva-Conventions.html?scp=5&sq=torture&st=cse">Common Article 3</a> of the Geneva Conventions along with numerous <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law">customary law rules</a>, which derive from general practices accepted as law. Common Article 3, which applies to civilians and those no longer fighting, prohibits practices such as torture, summary execution and denial of a fair trial. But Prisoner of War status only applies to conflicts between states so would not apply.</p>
<p>But some international observers, including the United Nations, view Israel as, <a href="https://www.ochaopt.org/">in effect, occupying Gaza</a> – a view predicated on the fact that Israel <a href="https://www.nbcnews.com/news/gaza-strip-controls-s-know-rcna119405">controls Gaza’s borders</a> and airspace and it <a href="https://www.aljazeera.com/news/2023/10/11/why-is-gaza-out-of-fuel-and-what">supplies most of its electricity</a>.</p>
<p>If that is the case, then the recent outbreak of hostilities between Hamas and Israel would trigger the entirety of laws of war.</p>
<p>That said, I do not believe that Israel is an occupying power
in Gaza under a strict reading of the law. This is because Israel ceased governing and <a href="https://www.reuters.com/article/us-israel-gaza-disengagement-insight/shadow-of-israels-pullout-from-gaza-hangs-heavy-10-years-on-idUSKCN0QF1QQ20150810">pulled its forces out of Gaza in 2005</a>. Since 2007, Hamas, after <a href="https://www.theguardian.com/world/2007/jun/15/israel4">expelling the Palestinian Authority</a>, has in effect governed Gaza.</p>
<h2>Is the bombing of Gaza illegal under international law?</h2>
<p>Today the rules governing the conduct of hostilities in both international and non-international armed conflicts are essentially the same.</p>
<p>The foremost requirement in all conflicts is that combatants must always distinguish between civilians and combatants, and that attacks can only be directed at combatants and other military targets.</p>
<p>Protecting civilian populations caught in warfare essentially depends upon three factors: </p>
<ol>
<li>Civilians must abstain from fighting;</li>
<li>The party in control of the civilian population must not place them at heightened risk of harm by using them as human shields; and</li>
<li>The attacking force must take precautions to avoid or minimize excessive civilian casualties when attacking lawful targets.</li>
</ol>
<p>Not only are civilians in Gaza not lawful targets, they are also protected under IHL by the <a href="https://lieber.westpoint.edu/proportionality-international-humanitarian-law-principle-rule/">rule of proportionality</a>. This rule prohibits an attack against a military target which foreseeably could cause civilian casualties that are excessive, or disproportionate in relation to the advantage anticipated from the target’s destruction.</p>
<p>In the case of Gaza, this rule requires that before launching an attack, the Israeli military analyze and determine the likely effect on civilians. If it appears that such an attack will cause disproportionate civilian casualties, then it must be suspended or canceled.</p>
<p>Given Gaza’s urban density, it will be extremely difficult for the Israelis to avoid substantial civilian casualties even when using precision weapons. </p>
<p>And this task will be nearly impossible if Hamas, as it has <a href="https://stratcomcoe.org/cuploads/pfiles/hamas_human_shields.pdf">consistently done in the past</a>, uses civilians and now hostages to shield military targets.</p>
<p>While Israel bears primary responsibility to avoid excessive civilian deaths in its bombardment of Gaza, Hamas’ ability to claim the bombardment constitutes a war crime would be weakened if it deliberately places its own people in harm’s way. </p>
<p>And while Israel is <a href="https://apnews.com/article/israel-palestinians-gaza-hamas-war-c8b4fc20e4fd2ef381d5edb7e9e8308c">complying with its duty to give an advanced warning</a> of an attack in north Gaza, the problem remains: Where do 1 million people go to seek safety when borders are closed and military targets are being hit throughout Gaza?</p>
<h2>Is Israel’s siege of Gaza illegal?</h2>
<p>Unlike <a href="https://www.chathamhouse.org/2019/06/sieges-law-and-protecting-civilians-0/i-introduction">in the past</a>, total siege warfare now is unlawful regardless of whether the warring parties are involved in international or non-international hostilities.</p>
<p>Blocking the entry of all food, water, medicines and <a href="https://www.theguardian.com/world/2023/oct/12/no-power-water-or-fuel-to-gaza-until-hostages-freed-says-israeli-minister">cutting off electricity</a> – as appears to be happening in Gaza – will disproportionately affect civilians, foreseeably leading to their starvation. This is a banned method of warfare under customary and conventional IHL.</p>
<p>No matter how horrific the actions of Hamas, IHL does not permit an aggrieved party to respond in kind. Violation of the law by one party cannot, in principle, justify or sanction actions by the other that violate established prohibitions in international humanitarian law.</p>
<h2>What are the status and obligations of Hamas under IHL?</h2>
<p>IHL rules apply equally to all the warring parties irrespective of the nature of the conflict. This means that Israeli and Hamas combatants have the same rights and duties.</p>
<p>If, however, the conflict is non-international, then Hamas will be regarded as an armed non-state actor and its combatants ineligible for Prisoner of War status upon capture. Accordingly, Israel can try them for all their hostile acts whether or not Hamas complies with the laws of war.</p>
<figure class="align-center ">
<img alt="Masked men in black hold aloft rifles." src="https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Masked militants from the Izzedine al-Qassam Brigades, a military wing of Hamas.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PalestiniansHamasanniversary/919f51e5b9314839a8fbe54bc4e75fcd/photo?Query=hamas%20fighters&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=4&currentItemNo=3&vs=true">AP Photo/Adel Hana</a></span>
</figcaption>
</figure>
<p>But even if the conflict is an international one, then Hamas’s fighters would still be debarred from Prisoner of War status. They are not the armed forces of Palestine – which is <a href="https://worldpopulationreview.com/country-rankings/countries-that-recognize-palestine">recognized as a state by 138 nations</a> and has the Palestine Authority as its government.</p>
<p>Rather, Hamas combatants are an irregular armed group. To be eligible for Prisoner of War status under <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949/article-4">Article 4A(2) of the Third Geneva Convention</a>, members of an irregular armed group must adhere to very strict standards, both collectively and individually. These includes distinguishing themselves from civilians and complying with the laws of war. Manifestly Hamas has not and does not meet these standards. As such, Israel could lawfully deny them Prisoner of War status upon capture.</p>
<p>Israel, the U.S. and others label <a href="https://www.dni.gov/nctc/groups/hamas.html">Hamas fighters as terrorists</a>. Hamas’ recent acts – indiscriminately firing thousands of rockets into Israel, targeting, killing and taking civilians as hostages – are acts of terrorism in warfare and qualify as war crimes.</p><img src="https://counter.theconversation.com/content/215493/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Goldman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar of the laws of war explores the complex issues raised by Israeli bombing of Gaza in retaliation for the slaughter of its citizens.Robert Goldman, Professor of Law, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2156372023-10-13T23:27:04Z2023-10-13T23:27:04ZWhere does international law fit into the Israeli-Palestinian conflict?<p>Thinking about the Israeli-Palestinian conflict is never easy. Yet the growing number of declarations being made highlights how important it is to consider the factors involved in making an assessment of the situation under the applicable law.</p>
<p>While the solution to any conflict is political, the fact remains that any armed conflict is covered by a specific branch of international law, the law of armed conflict, also known as international humanitarian law. </p>
<p>Although international humanitarian law is sometimes thought to lack effectiveness, we must not lose sight of the fact <a href="https://aoc.media/analyse/2022/03/10/les-conflits-armes-une-zone-de-non-droit/">that its application, however minimal</a>, ensures that civilian lives are spared.</p>
<p>As a professor at Laval University’s Faculty of Law and Scientific Director of the <a href="https://www.irsem.fr/en/index.html">Institut de recherche stratégique de l'École militaire</a> (an interdisciplinary research centre for conflict and peace studies based in Paris), I specialize in international humanitarian law and am a member of the <a href="https://www.crdh.fr/en/">Paris Human Rights Centre</a> (Research Centre for Human Rights and Humanitarian Law).</p>
<h2>Classifying the conflict</h2>
<p>The first step to be taken before making any legal analysis in international humanitarian law is to classify the situation. In the present case, this qualification is open to <a href="https://lieber.westpoint.edu/legal-context-operations-al-aqsa-flood-swords-of-iron/">debate</a>. </p>
<p>There are two possible ways to characterize it. It is either a non-international armed conflict between an armed group, Hamas, and a State, Israel, or it is an international armed conflict, owing to the situation of occupation that has prevailed in the Palestinian territories since the Six-Day War of 1967. </p>
<p>In 2012, <a href="https://access.archive-ouverte.unige.ch/access/metadata/3819f7ae-9778-49d4-8415-0563efb64f10/download">I argued that despite the unilateral withdrawal of Israeli troops, the territory of the Gaza Strip remained under Israeli occupation</a>. Indeed, when in 2004 the <a href="https://www.icj-cij.org/sites/default/files/case-related/131/131-20040709-ADV-01-00-FR.pdf">International Court of Justice</a> stated that Israel was obliged to apply international humanitarian law and international human rights law by virtue of its status as occupying power in this territory, Israel unilaterally withdrew its troops from Gaza in 2005, claiming to be free of its obligations. </p>
<p>I believe that for a situation in a territory to be characterized as an occupation, and, therefore, for a power to establish its authority over it, that power needs to deploy its armed forces in the territory. However, the withdrawal of these forces does not ipso facto mean there is no more occupation, as long as the State continues to control the land, sea and air borders, to issue passports to its population and to have its currency in circulation. The fact that Israel can decide to <a href="https://www.timesofisrael.com/liveblog_entry/israel-cuts-electricity-supply-to-gaza/">completely cut off the electrical power supply</a> in Gaza only confirms this. </p>
<p>Since 2005, clashes and confrontations between Hamas and Israel have taken place on a regular basis. The fact that they have reached the scale demonstrated by the events of Oct. 7 is not likely to change this assessment. </p>
<h2>So, what difference does this make?</h2>
<p>None at all.</p>
<p>Whichever way one characterizes the conflict, it goes without saying that the acts of <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule1">deliberately targeting civilians</a> and taking <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule96">hostages</a> are strictly forbidden. This is even more the case when these acts are part of a pattern of violence whose principle aim is to <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule2">spread terror among the civilian population</a>.</p>
<p>In the same vein, no matter how the conflict is qualified, it is difficult to see how <a href="https://www.barrons.com/news/total-siege-of-gaza-prohibited-under-international-law-un-1abc1549">declaring a “total siege” of the Gaza Strip</a> could be consistent with international humanitarian law. The “siege” is not a notion that is expressed, in extenso, in international humanitarian law. The term siege refers to restricting the movement of people and goods in a specific area with the aim of forcing enemy forces to stop fighting. </p>
<p>While a siege, as such, is not prohibited, its effects inevitably lead to violations of international humanitarian law. For example, preventing the delivery of food or the supply of water can lead to the starvation of the population living in the territory. Using famine as a method of warfare is <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule53">prohibited</a>. Similarly, restricting or preventing the movement of people means that humanitarian personnel cannot carry out their relief work in the besieged zone. But humanitarian organizations must be allowed to deliver aid to the civilian population and, according to international humanitarian law, the parties in the conflict must even <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule55">“facilitate their passage”</a>.</p>
<p>The unleashing of violence that we are seeing, including the initial acts and the response to them, is inevitably leading to massive violations of international humanitarian law and therefore to <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule156">war crimes</a>. </p>
<p>The situation raises the legitimate question of how effective international humanitarian law is. However, if, as <a href="https://msf-crash.org/en/rony-brauman">Rony Brauman</a> of Médecins sans frontières once said, “to promote international humanitarian law is to promote war” (the comment, in itself, merits conversation), promoting respect for this law in a situation such as the one in Israel and Gaza — which, whatever its nature, is undoubtedly an armed conflict — can do no harm. On the contrary, abandoning the pursuit of respect for international humanitarian law, even when it is being abused, will only lead to more chaos.</p>
<p>In this respect, it is worth remembering that third States, i.e. States which are not parties to this armed conflict, have an obligation to <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gci-1949/article-1?activeTab=1949GCs-APs-and-commentaries">“ensure respect for international humanitarian law.”</a> This means that in all its interactions with the parties to the conflict, Canada, like every other state in the world, has a duty to remind them of their obligations under international humanitarian law.</p><img src="https://counter.theconversation.com/content/215637/count.gif" alt="La Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julia Grignon is a member of the Commission Nationale Consultative des Droits de l'Homme (France), President of the Sous-commission droit international humanitaire et action humanitaire. She is also Development Director of the Osons le DIH! partnership for the promotion and development of international humanitarian law, funded by the Social Sciences and Humanities Research Council of Canada.</span></em></p>This unleashing of violence, including the initial acts and the response to them, inevitably leads to war crimes.Julia Grignon, Professeure en droit international humanitaire, Université LavalLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2120802023-10-05T18:16:25Z2023-10-05T18:16:25ZCalling the war in Ukraine a ‘tragedy’ shelters its perpetrators from blame and responsibility<figure><img src="https://images.theconversation.com/files/550446/original/file-20230926-17-5hu4bd.jpg?ixlib=rb-1.1.0&rect=26%2C26%2C5964%2C3961&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Labeling a Russian rocket attack that killed 12 people in Kramatorsk, Ukraine, as a 'tragedy' sidelines human accountabilty.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/restaurant-workers-whose-colleagues-died-by-a-russian-news-photo/1513446720">Yan Dobronosov/Global Images Ukraine via Getty Images</a></span></figcaption></figure><p>Russia’s war against Ukraine continues to cause unspeakable, unimaginable suffering. By now, the word “tragedy” is firmly installed in the lexicon of the war and has become almost a cliche. </p>
<p>Journalists <a href="https://www.theguardian.com/world/2022/mar/24/one-month-on-how-a-tragedy-has-unfolded-in-ukraine-russia-war">record</a> <a href="https://www.aljazeera.com/gallery/2023/2/24/photos-russia-ukraine-war-images-capture-a-year-of-war-russia-u">tragedies</a> in Ukraine in their <a href="https://www.wfp.org/stories/war-ukraine-how-humanitarian-tragedy-fed-global-hunger-crisis">many</a> <a href="https://www.ft.com/content/77d3689d-efd4-473e-99e6-1ea6f56b7d7f">heartbreaking</a> <a href="https://www.voanews.com/a/tens-of-thousands-of-ukrainian-children-bear-tragedy-of-war-/6975329.html">manifestations</a>. Marking the first anniversary of the war in February 2023, U.S. President Joe Biden said, “This war was never a necessity; <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/02/21/remarks-by-president-biden-ahead-of-the-one-year-anniversary-of-russias-brutal-and-unprovoked-invasion-of-ukraine/">it’s a tragedy</a>.”</p>
<p>The label of “tragedy” is liberally applied to most every development in this war. Russia’s breach of the Kakhovka dam on June 6, 2023, and the humanitarian and ecological disaster it caused was “<a href="https://apnews.com/article/kherson-flooding-kakhovka-dam-ukraine-russia-dnieper-f1730cdcdae7042e5089ecd0c542e667">the latest tragedy</a>,” according to an Associated Press headline.</p>
<p>That “latest” was not the last: On June 27, a Russian missile strike on a <a href="https://www.cnn.com/2023/06/28/europe/kramatorsk-deadly-strike-ukraine-war-intl/index.html">pizzeria in Kramatorsk</a> killed 12, among them <a href="https://www.theguardian.com/world/2023/jul/03/ukrainian-writer-victoria-amelina-dies-after-being-wounded-in-kramatorsk-strike">Viktoria Amelina</a>, a 37-year-old Ukrainian writer and researcher of Russian war crimes. Joining an outpouring of anguish and grief on social media, one commentator wrote of Russia’s deliberate targeting of Ukrainian civilians: “What Russia is doing is absolutely pointless, which makes it <a href="https://twitter.com/russianforces/status/1675789211494916096?s=20">all the more tragic</a>.”</p>
<p>Many more tragedies followed: <a href="https://www.smithsonianmag.com/smart-news/russian-air-strike-damages-transfiguration-cathedral-odesa-180982616/">the destruction</a> of Odesa’s <a href="https://www.pbs.org/newshour/world/russia-hits-critical-port-facilities-in-odesa-in-second-night-of-attacks-after-kremlin-halts-grain-deal">port infrastructure</a> and UNESCO-protected Transfiguration Cathedral, a missile strike on an apartment building in <a href="https://www.rferl.org/a/ukraine-lviv-missile-attack-dead-russia-invasion-zelenskiy-counteroffensive/32491484.html">Lviv in July</a> and a massive missile attack on a number of <a href="https://www.rferl.org/a/russian-missile-strike-targets-six-ukrainian-cities/32602567.html">Ukrainian cities</a> in September. On October 5, a Russian missile strike in northeastern Ukraine reportedly killed 51 people attending a memorial service, which was “<a href="https://www.reuters.com/world/europe/russian-attack-kills-49-northeast-ukraine-ukrainian-officials-say-2023-10-05/">a terrible tragedy</a>,” in the words of Ukrainian Interior Minister Ihor Klymenko.</p>
<p>Tragedy is a word used ubiquitously by Ukraine empathizers discussing the horrors of the war in Ukraine. But, it turns out, the word tragedy is also popular with autocrats who are responsible for bringing those events about – but have no intention of admitting their responsibility.</p>
<h2>Dictators and tragedy</h2>
<p>In July 2014, after a <a href="https://www.npr.org/2023/02/08/1155401602/malaysian-airlines-flight-mh17-putin-missiles-investigation">Russian missile downed a Malaysia Airlines airliner</a> over eastern Ukraine, killing 298 people, Russian President Vladimir Putin called the incident a <a href="http://special.kremlin.ru/events/president/news/60797">tragedy</a>, while denying Russian responsibility for it. </p>
<p>When Russian opposition leader Boris Nemtsov was murdered in 2015, Putin referred to the <a href="http://time.com/3731849/putin-political-killings-shame-and-tragedy/">“shame and tragedies”</a> of political killings in Russia. </p>
<p>And in 2022, Putin unleashed an unprovoked war against Ukraine and then went on to call it <a href="https://www.bbc.com/news/world-europe-64055018">“a shared tragedy”</a> for both Ukraine and Russia. </p>
<p>Similar to Putin, Ukraine’s own former president, Moscow-supported kleptocrat <a href="https://www.bbc.com/news/world-europe-29761799">Viktor Yanukovych</a>, ousted by popular protests in 2014 and complicit in Russia’s annexation of the Ukrainian peninsula of Crimea that year, <a href="http://www.nytimes.com/2014/04/03/world/europe/deposed-ukrainian-leader-calls-crimea-annexation-a-tragedy.html">called the annexation a tragedy,</a> denying that either he or Putin were responsible for the land grab. </p>
<p>Earlier, in 2006, Yanukovych, then in opposition, had insisted that the Holodomor of 1932-33, a famine that claimed the lives of about 4 million Ukrainians, <a href="http://www.washingtonpost.com/wp-dyn/content/article/2008/04/26/AR2008042602039_2.html">was a tragedy</a>, not a premeditated genocide orchestrated by Josef Stalin and his regime.</p>
<p>In dictators’ utterances, the invocation of tragedy is not incidental. Designating something a tragedy is meaningfully different than calling it an atrocity or a crime, for which the wrongdoer must be held responsible and punished. Calling it a tragedy serves to minimize the human responsibility, typically their own, from the causes of the “tragedy.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/550447/original/file-20230926-25-u6hmw1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A flame burns in wreckage near a group of people at the site of a destroyed airplane." src="https://images.theconversation.com/files/550447/original/file-20230926-25-u6hmw1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/550447/original/file-20230926-25-u6hmw1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/550447/original/file-20230926-25-u6hmw1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/550447/original/file-20230926-25-u6hmw1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/550447/original/file-20230926-25-u6hmw1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/550447/original/file-20230926-25-u6hmw1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/550447/original/file-20230926-25-u6hmw1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Russian President Vladimir Putin called the downing of Malaysia Airlines Flight 17 over Ukraine in 2014 a ‘tragedy,’ though it was shot down by a Russian missile.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-stand-on-july-17-amongst-the-wreckages-of-the-news-photo/452285540">Dominique Faget/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Choosing words with care</h2>
<p>Words are not just passive descriptions. They create meaning in the world and help people understand how to think about events. This is particularly true of abstract concepts we use in political conversation.</p>
<p>In everyday speech, people use the word tragedy to describe anything deeply upsetting and unfortunate. Merriam-Webster’s online dictionary <a href="https://www.merriam-webster.com/dictionary/tragedy">defines</a> the word tragedy as a disastrous event or misfortune. Merriam-Webster’s thesaurus <a href="https://www.merriam-webster.com/thesaurus/tragedy">offers further synomyms</a>: calamity, catastrophe, misfortune, mishap, misadventure, accident. Most of those synonyms refer to or imply the working of forces beyond human control.</p>
<p>Those connotations come from the origins of the word tragedy and its meaning. Tragedy originated in ancient Greece as an art form that most poignantly reveals the mystery of <a href="https://www.britannica.com/art/tragedy-literature">interplay between fate and free will</a>. A classical tragic hero is a man, usually of noble birth, who is fated to doom and destruction by the gods. During his rebellion against that unjust fate, a tragic hero nevertheless commits errors. </p>
<p>In his <a href="https://classics.mit.edu/Aristotle/poetics.2.2.html">Poetics</a>, the ancient Greek philosopher Aristotle argued that the tragic hero’s flaw is not due to his wickedness but merely an unwitting error of judgment: After all, he is not an omniscient god but only human. And so the tragic hero’s plight ends either in his demise or the humbling of his pride.</p>
<p>In his famous 1949 New York Times essay “Tragedy and the Common Man,” American playwright Arthur Miller described the tragic hero’s plight as <a href="https://www.nytimes.com/books/00/11/12/specials/miller-common.html">active retaliation against circumstances he deems demeaning and unjust</a>. According to Miller, the “tragic flaw” is ultimately the hero’s “inherent unwillingness to remain passive in the face of what he conceives to be a challenge to his dignity, his image of his rightful status.” In Miller’s words, the lesson of the tragedy is the discovery of a moral law.</p>
<p>Tragedy, then, in its deeper original sense, implies inadvertence and inevitability: Unintended consequences of individual choices, originally driven by a noble quest for justice and personal dignity, ultimately crash against the firmament of divine designs and systemic factors beyond human control.</p>
<h2>Russia’s war on Ukraine is first a crime and only then a tragedy</h2>
<p>In contemporary politics, the invocation of tragedy has the unfortunate effect of masking the responsibility of perpetrators who cause injustices and human suffering through malicious intent and deliberate wrongdoing.</p>
<p>Ukraine’s fight for its survival is indeed heroic, but not in a tragic sense. It is engaged not in a struggle against unjust fate decreed by the gods but against a <a href="https://abc7chicago.com/putin-arrest-warrant-russia-ukraine/12968196/">criminal aggressor</a>, Russia led by President Putin, who <a href="http://en.kremlin.ru/events/president/news/66181">has claimed</a> that Ukraine has no right to exist as a political entity and a people and set out to wage a cruel and destructive war against it. </p>
<p>There is nothing inadvertent about the killing of Boris Nemtsov in 2015 or Viktoria Amelina in 2023. There is nothing inevitable about the Russian onslaught in Ukraine, about the killing, maiming and raping of its people <a href="https://www.rferl.org/a/russia-children-taken-ukraine/32527298.html">and kidnapping of its children</a>.</p>
<p>Russia’s behavior and the suffering it brings about is a brazen affront to international law and the basic human dignity this law seeks to uphold. So far, 80,000 alleged war crimes <a href="https://apnews.com/article/congress-ukraine-russia-war-crimes-torture-1015b6b6393489d088b0980225ff4509">have been documented</a> for prosecution before a court of law and an international tribunal. </p>
<p>Until that happens, it is best to keep a clear mind and use precise vocabulary: Russia has committed aggression, and its forces continue to commit atrocities in Ukraine. The nation’s responsibility for these crimes should not hide behind the label of “tragedy.”</p><img src="https://counter.theconversation.com/content/212080/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mariana Budjeryn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Calling something a ‘tragedy’ serves to minimize human responsibility for its causes, which can be convenient for the people who are causing the ‘tragedy.’Mariana Budjeryn, Research Associate, Project on Managing the Atom, Harvard Kennedy SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2113062023-09-18T21:13:45Z2023-09-18T21:13:45ZCanada’s war crimes investigation may not deter Russia, but it matters to Ukrainians<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/canadas-war-crimes-investigation-may-not-deter-russia-but-it-matters-to-ukrainians" width="100%" height="400"></iframe>
<p>In June 2022, United States Attorney General Merrick Garland <a href="https://www.nytimes.com/2022/06/21/world/europe/merrick-garland-ukraine-war-crimes.html">travelled to Ukraine</a> to call for the prosecution of Russian war crimes. </p>
<p>“The United States is sending an unmistakable message” to those who have committed atrocities, he said. “There is no place to hide.” </p>
<p>There’s only one problem: American hands are tied when it comes to the international prosecution of war crimes. That’s because it opted out of the International Criminal Court (ICC) due to objections over the <a href="https://www.icc-cpi.int/about/how-the-court-works">court’s jurisdiction</a> that allows it, <a href="https://how-the-icc-works.aba-icc.org/">under certain conditions</a>, to pursue people outside their own state borders. </p>
<p><a href="https://www.bbc.com/news/world-europe-38005282#">Russia has also withdrawn from the ICC</a>. Ukraine isn’t a member; it signed but didn’t ratify the court’s statute.</p>
<p>That means it will fall to <a href="https://asp.icc-cpi.int/states-parties">third-country signatories to the ICC</a> like <a href="https://www.international.gc.ca/world-monde/international_relations-relations_internationales/icc-cpi/index.aspx?lang=eng">Canada</a> to investigate and prosecute Russian war crimes in Ukraine.</p>
<h2>Institutionalizing war crimes</h2>
<p>Around the First World War, the great powers began codifying the laws of war in <a href="https://casebook.icrc.org/a_to_z/glossary/hague-conventions">several conventions</a> <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">and treaties</a>. </p>
<p>Building on centuries of law, these agreements specified when countries could go to war and under what conditions, spelled out the treatment of both combatants and non-combatants and limited the use of weapons and other practices during warfare. </p>
<p>These fledgling agreements did little to prevent the outbreak of another global conflict, but they did provide the foundation for the world’s first international tribunals in Tokyo and Nuremberg following the Second World War.</p>
<p>That marked a decisive moment for international law, representing the first time national leaders were held accountable for war crimes on the world stage.</p>
<p>Under American stewardship, the immediate post-Second World War period witnessed a massive expansion of international law. </p>
<p>New treaties were drafted <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">criminalizing genocide</a> and <a href="https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml">crimes against humanity</a>. New organizations like the <a href="https://www.un.org/en/">United Nations</a> were born. </p>
<p>A liberal rules-based international order began to emerge, setting fundamental limits on state sovereignty — particularly in the conduct of war, and even within national boundaries. </p>
<p>But this progress halted with the start of <a href="https://www.nationalww2museum.org/war/articles/cold-conflict">the Cold War; the standoff between the Soviet Union and the U.S. put the prosecution of war crimes on ice</a>. </p>
<p>Few leaders were held accountable for their crimes as superpowers shielded them from prosecution. </p>
<h2>UN creates the ICC</h2>
<p>Following the Soviet collapse, and the emergence of the U.S. as the sole remaining global superpower, the UN Security Council organized <a href="https://www.un.org/securitycouncil/content/repertoire/international-tribunals">international tribunals</a> to address genocide, war crimes and other atrocities committed during conflict. </p>
<p>These tribunals were situational, focused on conflicts in Rwanda and the former Yugoslavia. The UN then used its renewed power to formalize them in the Rome Statute, <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">the founding document of the ICC</a>.</p>
<p>This was made possible by a legal innovation: the creation of a permanent international tribunal that would enable signatories to bring war criminals to justice.</p>
<p>Even third parties, with no apparent interest, could investigate and refer war criminals to the international body under certain circumstances. </p>
<p>But in a dramatic about-face, the George W. Bush administration <a href="https://www.hrw.org/news/2002/05/06/united-states-unsigning-treaty-war-crimes-court">withdrew the U.S.</a> from the ICC, fearing the court <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2450&context=faculty_scholarship">might complicate</a> its so-called war on terror. </p>
<p>Nevertheless, the ICC came into existence in 2002, and the court began issuing arrest warrants and prosecuting war criminals. </p>
<p>Without the U.S., however, its activities remained restricted. For the next decade, prosecutions were limited to the African continent, leading to allegations of <a href="https://iccforum.com/africa">systemic bias</a>. </p>
<p>There are still questions about whether the ICC can hold war criminals to account more broadly — and they’ve only intensified during the war in Ukraine. </p>
<h2>Canada’s role</h2>
<p>In March 2022, 39 countries, including Canada, <a href="https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states">referred the war in Ukraine to the ICC</a>. At the same time, the RCMP <a href="https://www.rcmp-grc.gc.ca/en/news/2022/a-statement-the-partners-canadas-war-crimes-program-the-conflict-ukraine">launched an investigation</a> into alleged war crimes committed by Russia in Ukraine.</p>
<p>This is the first <a href="https://www.ourcommons.ca/DocumentViewer/en/44-1/SDIR/meeting-9/evidence">real-time war crimes investigation</a> in Canada’s history, and one of the first globally. </p>
<p>The ICC has laid charges against Russian President <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">Vladimir Putin</a>, accusing him of human rights abuses in Ukraine.</p>
<p>These developments mark a major change in Canada’s appetite for investigating war crimes. Before joining the ICC, Canada had a checkered history of holding war criminals accountable, even when they arrived on its shores. Canada was accused, for example, of providing <a href="https://www.cbc.ca/news/canada/nazi-war-criminals-in-canada-1.1026670">shelter to Nazi war criminals</a> and collaborators. </p>
<p>Canada’s probe into alleged ongoing war crimes in Ukraine suggests it now has the <a href="https://www.international.gc.ca/world-monde/stories-histoires/2022/war-crimes-investigated_crimes-guerre-enquetes.aspx?lang=eng">political will</a> to investigate these atrocities even when they happen outside of its borders.</p>
<p>Given Canada’s <a href="https://www.international.gc.ca/world-monde/international_relations-relations_internationales/icc-cpi/index.aspx?lang=eng">role in the creation of the ICC</a>, the country’s leadership on this front is appropriate. </p>
<p>Efforts to hold Russia accountable have also engaged a keen and highly activist group: Ukrainian Canadians. </p>
<p>As they <a href="https://data.unhcr.org/en/situations/ukraine">welcome refugees</a> and lobby the government, Ukrainian Canadians have helped collect war crimes testimonials that could one day be used to prosecute Russia.</p>
<p>Newly arriving Ukrainians to Canada <a href="https://ukraine.rcmp.ca/responseForm?lang=en">are greeted by posters and pamphlets printed in English, French, Russian and Ukrainian</a> asking them to report their recollections to the RCMP while their memories are still fresh.</p>
<p>Nonetheless, despite the unprecedented steps Canada and other states are taking to put Russia on notice, it’s doubtful they’ll ultimately result in any concrete forms of Russian accountability. </p>
<h2>Creating a historical record</h2>
<p>Although some of these measures have apparently made top <a href="https://www.theguardian.com/world/2023/sep/11/lula-putin-g20-brazil-arrest">Russian officials more circumspect</a> when travelling internationally, it’s highly unlikely alleged Russian war criminals will end up before Canadian courts.</p>
<p>Globally, the <a href="https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/">impact also seems limited</a>. Russia remains a nuclear power and UN Security Council member, further underscoring the improbability of future prosecutions. </p>
<p>However, the RCMP investigation is important. It signals a new path for Canada that prioritizes international law and corrects for past policy failures that saw the country provide safe harbour to war criminals. </p>
<p>For Ukrainian-Canadians, the investigation validates their experiences. Canada is helping create a historical record. The investigation will form one of the pre-eminent repositories of testimonials from recently arrived refugees. </p>
<p>Canada has taken on the sacred duty of creating and safeguarding a dark moment in Ukrainian history — and this matters to the victims of Russia’s war. </p>
<p>As Alexandra Chyczij, president of the Ukrainian Canadian Congress, told us in an interview: </p>
<blockquote>
<p>“What is important today is that the massive evidence of the myriad, systemic Russian crimes against humanity, war crimes and terrorism – committed under the direction of the Russian political leadership – be documented, collected and preserved.”</p>
</blockquote><img src="https://counter.theconversation.com/content/211306/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The war crimes probe signals a new path for Canada that prioritizes international law and corrects past policy failures, while validating the experiences of Ukrainians.Jamie Levin, Assistant Professor of Political Science, St. Francis Xavier UniversityKiran Banerjee, Assistant Professor of Political Science & Canada Research Chair, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2039602023-09-05T20:06:18Z2023-09-05T20:06:18Z‘No woman in the usual sense’: Ilse Koch, the ‘Bitch of Buchenwald’, was a Holocaust war criminal – but was she also an easy target?<p>In her indictment, the prosecutor described Ilse Koch as “a sexy-looking depraved woman who beat prisoners, reported them for beatings, and trafficked human skin”. </p>
<p>Ilse’s husband, Karl Koch, had been commandant of <a href="https://www.britannica.com/summary/Buchenwald">Buchenwald</a>, one of the first and largest concentration camps within Germany’s 1937 borders, from August 1937 to October 1941. He would then briefly serve as a commander of <a href="https://encyclopedia.ushmm.org/content/en/article/lublin-majdanek-concentration-camp-conditions">Majdanek</a>, another notorious concentration camp.</p>
<p>On 11 April 1947, two years to the day after American forces liberated the camp, the <a href="https://liberation.buchenwald.de/en/otd1945/criminal-prosecution">Buchenwald trials</a> opened in a courtroom in the internment camp of Dachau, the site of the former Dachau concentration camp. The trials were run in the US-occupied zone, by American military tribunals. </p>
<p>The Kochs had initially been arrested in 1943 and tried before the SS military court. <a href="https://www.jewishvirtuallibrary.org/ilse-koch">Charged with</a> embezzlement and (in Karl’s case) the unauthorised murder of three prisoners, Karl Koch was convicted, and executed in 1945 for his crimes. </p>
<p>However, Ilse was set free due to the lack of evidence against her – and American forces later pursued her for her involvement with war crimes and crimes against humanity. </p>
<hr>
<p><em>Review: Ilse Koch on Trial: Making the Bitch of Buchenwald – Tomaz Jardim (Harvard University Press)</em></p>
<hr>
<p>Prisoners referred to Koch as the “commandeuse”, suggesting a degree of authority as wife to her commandant husband. But Koch always claimed:</p>
<blockquote>
<p>I was a housewife […] I have three children […] the operation of the camp didn’t concern me […] In [my husband’s] eyes, my primary job was to be the mother of our children. </p>
</blockquote>
<p>The press referred to Ilse as the “Witch of Buchenwald”, the “Bitch of Buchenwald”, and the “Beast of Buchenwald”: a sadist and a pervert who was morally compromised, and a nymphomaniac. </p>
<p>Tomaz Jardim’s <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674249189">Ilse Koch on Trial</a> argues the pervasive myth of Koch’s most sensationalised (yet unproven) crimes illustrates that the judgements of the public and the press were “as formative as the judgement of the courts in generating the enduring image of the ‘Bitch of Buchenwald’”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=463&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=463&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=463&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=582&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=582&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542563/original/file-20230814-18-jhu41d.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=582&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ilse Koch is sentenced to life in prison by a US military.</span>
<span class="attribution"><span class="source">United States Holocaust Museum</span></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-not-just-about-the-rise-in-anti-semitism-why-we-need-real-stories-for-better-holocaust-education-in-australia-153645">It's not just about the rise in anti-Semitism: why we need real stories for better Holocaust education in Australia</a>
</strong>
</em>
</p>
<hr>
<h2>Joined the Nazi party ‘early’</h2>
<p>Koch was born in Dresden in 1906, to a middle-class family. Her mother was a housewife, her father a labourer. </p>
<p>She had an ordinary childhood. She left school early and started working full-time when she was 15. She joined the Nazi party earlier than most of her peers, in 1932. </p>
<p>At the time, the Nazi party appealed to young people because fascism seemed a viable solution to the deep economic recession that had followed the first world war, and had impoverished many German families.</p>
<p>The idea of an Aryan master race built on anti-Semitism also appealed to Koch, who saw herself as a true representative of such a race. Her future husband, Karl Koch, shared those sentiments. </p>
<p>The couple married after Koch collected evidence of her Aryan ancestry. She was expected to breed pure-race children and, with Karl, she gave a birth to three: two daughters and one boy, whom she raised with the help of maids and camp inmates. </p>
<p>Koch lived with her family in a three-story villa on the grounds of the Buchenwald concentration camp. More than 56,000 people died there from starvation, torture, illness and executions. </p>
<p>The executions of Buchenwald prisoners, writes Jardim, occurred in multiple forms: “shooting, hanging, gassing, corporal punishment, experiments withholding food and [the] refusal of medical care”. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=376&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=376&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=376&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=472&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=472&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543364/original/file-20230818-27-t4mb2n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=472&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ilse and Karl Koch with family, 1940.</span>
<span class="attribution"><span class="license">Author provided</span></span>
</figcaption>
</figure>
<h2>Tried for awareness and participation</h2>
<p>“It would have been easy for me to obtain false papers and live somewhere with a false name,” Ilse Koch wrote in 1946. “It also would have been easy for me to have disguised myself.” </p>
<p>But, she continued, “I had no reason whatsoever to disappear. I never even conceived of the possibility of being put to trial.” </p>
<p>The American prosecutor did not prosecute Koch and the other Buchenwald suspects for the “direct perpetration of war crimes”, but for “participating in a common design” to commit war crimes. </p>
<p>The officers who made up the military courts at Dachau were, writes Jardim, “honest and competent men”, but they were not lawyers or professional jurists. </p>
<p>Dressed up and with her head held high, Margarete Ilse Koch entered the courtroom. She was the only woman among 31 indicted for the war crimes and crimes against humanity committed in Buchenwald. </p>
<p>The legal doctrine of “<a href="https://eprints.whiterose.ac.uk/147726/1/Jogee.pdf">common purpose</a>”, which addresses complicity in a crime or crimes, was a useful tool for prosecution in World War II cases like Koch’s. (It has since been further developed by the International Criminal Tribunal for the Former Yugoslavia, under the different name of “<a href="https://en.wikipedia.org/wiki/Joint_criminal_enterprise">joint criminal enterprise</a>”.) </p>
<p>The relevant legal provision <a href="https://books.google.com.au/books?id=BpzGDwAAQBAJ&pg=PT313&lpg=PT313&dq=%22%5Bi%5Df+he+was+connected+with+plans+or+enterprises+involving+its+commission%22&source=bl&ots=hhov5ltW50&sig=ACfU3U20De-G6lKilx2CoCDAoNguqYyheQ&hl=en&sa=X&ved=2ahUKEwjmperjkOOAAxX5pFYBHZt0DZsQ6AF6BAgKEAM#v=onepage&q=%22%5Bi%5Df%20he%20was%20connected%20with%20plans%20or%20enterprises%20involving%20its%20commission%22&f=false">stated</a> that any person was deemed to have committed a crime if “he was connected with plans or enterprises involving its commission” or was “a member of any organization or group connected with the commission of any such crime”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=513&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=513&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=513&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=645&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=645&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543362/original/file-20230818-41912-fn5cqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=645&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ilse Koch on trial.</span>
<span class="attribution"><span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>So Koch was to stand trial not because she had status within the Nazi system or had killed someone herself, but because she knew of the coordinated criminal enterprise that was the Buchenwald concentration camp. And she was tried for her alleged awareness of the camp’s nature, and her voluntary and active participation in its enforcement. </p>
<p>Combining “sexualised imagery, gender stereotypes, and sadistic or fetishised violence”, writes Jardim, these reports created a thirst for details of her trial, with the public eagerly awaiting a guilty verdict. Her image was “monstrous and sexualised”. </p>
<h2>‘A creature from some other tortured world’</h2>
<p>Koch lived a luxurious life, built on her husband’s illegal activities, which were illegal even in the context of Nazi Germany. Ironically, the executions of 50,000 people at Buchenwald were “not wrongful according to the National Socialist system”.</p>
<p>The concentration camps became more than just death factories. They became centres where food and other valuable items could find their way onto the black market. Jardim writes that they were places of “deep corruption, grift, and embezzlement”, where Koch and his cronies pursued “an illicit trade in luxury goods produced by prisoners”.</p>
<p>Karl Koch was executed for placing himself “beyond the order of the concentration camp” and its prohibitions against illicit trade and embezzlement by Nazi officers, as well as the three unauthorised murders. </p>
<p>In the 1947 trials, American prosecutor Denson described Koch as “no woman in the usual sense but a creature from some other tortured world”, making her a powerful symbolic representation of Nazi crimes. </p>
<p>Witnesses claimed “she wore clothes which were deliberately chosen to be inciting for the prisoners”, writes Jardim, citing trial transcripts. They accused her of whipping prisoners for daring to look at her and of having “a desire to own certain objects made of human skin”, such as lampshades, a cover for a family photo album, and gloves.</p>
<p>Various objects made from human skin were found in Buchenwald when it was liberated, but no connection to Koch could be proven. Other allegations against Koch were also found to be “spurious” by judicial authorities. </p>
<p>Nevertheless, writes Jardim, the media exacerbated these allegations, which, once believed, fuelled hatred against the “bestial” Koch. Although the allegations against her were based on “a considerable degree of hearsay and conjecture”, her credibility was so undermined that no one could believe she “knew nothing” about the concentration camp and the treatment of its inmates.</p>
<p>On 14 August 1947, Koch was sentenced to life imprisonment by the US military court. At the time, she was seven months pregnant with her fourth child, Uwe, whom she conceived with an unknown father in her prison cell in Dachau. This further fuelled popular stories of her “flawed motherhood and moral character”. </p>
<p>A few months later, following various legal twists and turns, her request for clemency succeeded. The court concluded that there was no overwhelming or substantial evidence against Koch and commuted her sentence to four years imprisonment. </p>
<h2>‘Diabolical’</h2>
<p>The announcement sparked public outrage. The popular perception of the Koch case and the “diabolical image” painted by the press stood in striking contrast to “the reality that emerged from the evidentiary record and led to the commutation of her life sentence”, writes Jardim. Mounting criticisms of the court’s finding of clemency erupted into public protests. </p>
<p>Despite the uproar, her commutation remained in place and she was released in 1950. However, in the same year as her release, she was charged again – this time by the Western German authorities. </p>
<p>While Jardim cites original data from the trial, there is still some confusion about the exact numbers attached to Koch’s charges. <a href="https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1686&context=wlufac">One 2021 article</a> (which acknowledges this inconsistency) summarises them as: instigating the murder of 45 prisoners, complicity in 135 other murders, and one attempted murder.</p>
<p>In 1951, Koch was sentenced to life imprisonment once again. This time, she remained in jail until her death by suicide: she hanged herself with a bed sheet in Aichach Women’s Prison on 1 September 1967.</p>
<h2>Women and war crimes</h2>
<p>The role of women perpetrators in the Holocaust and beyond remains a growing yet under-researched topic. Studies on Ilse Koch have possibly been more common than those on other women war criminals, because the media sensationalised her story.</p>
<p>Ilse Koch on Trial reminds us that women, too, are capable of committing war crimes. It also reminds us that “such women” – who fail to conform to feminine expectations and gendered stereotypes – risk becoming cast as monsters in ways men are not. While it’s normalised that men can kill, especially in war, women are still stereotyped as peaceful and nurturing – which is reflected in the gendered reactions to women war criminals.</p>
<p>In more recent history, <a href="https://internationalcrimesdatabase.org/Case/853/Nyiramasuhuko-et-al/">Pauline Nyiramasuhuko</a>, a woman convicted of genocide in Rwanda, was called an “<a href="https://international-review.icrc.org/sites/default/files/irrc-877-hogg.pdf">evil woman</a>” and “the <a href="https://core.ac.uk/reader/10597680">mother of atrocity</a>”. Similarly, Biljana Plavšić, who was convicted of crimes against humanity in Bosnia and Herzegovina, was <a href="https://www.amazon.com.au/Mothers-Monsters-Whores-Laura-Sjoberg/dp/1842778668">described</a> as a “monster” in a female form. </p>
<p>Jardim writes that in preparation for Koch’s third and final trial, her violation of gender norms was treated as “central to her guilt and a key factor in determining her punishment”. It was stated that “[b]eing a woman made her participation more unnatural and more deliberate”. Her psychiatric assessment revealed “a level of cruelty alien to female nature”.</p>
<p>While no one denies Ilse Koch was guilty of terrible crimes, the most sensational atrocities attributed to her remain unproven. Jardim argues the widespread condemnation of Koch diverted attention from the more consequential – but less sensational – complicity in the Third Reich’s crimes, not only of high-profile Nazis, but millions of ordinary Germans who “supported, enabled, and carried out Nazi policies”. </p>
<p>Gendered perceptions of violence and culpability drove an eager support for prosecution of Koch, at a time when thousands of male Nazi perpetrators who were responsible for more significant crimes escaped punishment or received lighter sentences. </p>
<p>The “popular fascination with [Koch’s] sadistic violence and sexual domination” continues to thrive in popular culture, Jardim writes. It provides “an easy target of popular condemnation for a generation of Germans eager to distance themselves from the Nazi period”, and from “the broad complicity that brought the Third Reich to power”.</p><img src="https://counter.theconversation.com/content/203960/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Olivera Simic does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ilse Koch’s husband was commandant of Buchenwald, one of Germany’s first and largest concentration camps. As the only woman among 31 people indicted for crimes committed there, she became infamous.Olivera Simic, Associate Professor, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2094942023-08-08T20:06:13Z2023-08-08T20:06:13ZCatharsis, courage, a tribal media and lingering questions: two investigative journalists give their accounts of the Ben Roberts-Smith story<p>To trace the spectacular fall from grace of Australia’s most decorated living soldier, Ben Roberts-Smith, VC, you may face a dilemma – which newly released book to read? </p>
<p>Nine investigative journalist Nick McKenzie, and his mentor, veteran investigative reporter, Chris Masters, have both written rival book-length accounts of their investigation into the fallen war hero.</p>
<hr>
<p><em>Review: Crossing the Line: the Inside Story of Murders, Lies and a Fallen Hero – Nick McKenzie (Hachette)</em></p>
<p><em>Flawed Hero: Truth, Lies and War Crimes – Chris Masters (Allen and Unwin)</em></p>
<hr>
<p>Both McKenzie’s <a href="https://www.hachette.com.au/nick-mckenzie/crossing-the-line">Crossing the Line: the Inside Story of Murders, Lies and a Fallen Hero</a> and Masters’ <a href="https://www.allenandunwin.com/browse/book/Chris-Masters-Flawed-Hero-9781761069819/">Flawed Hero: Truth, Lies and War Crimes</a> draw heavily from the duo’s collaborative reporting into Roberts-Smith’s military career and alleged war crimes in Afghanistan. </p>
<p>Finding themselves at the centre of a high-stakes, multi-million dollar defamation case, their stories are as much about Australian journalism as they are about the deadly transgressions of some Australian soldiers abroad.</p>
<p>In court, the pair relied on a defence of truth – a high bar when relying on confidential sources. Australia has among the toughest defamation laws of any liberal democracy. </p>
<p>This adds to the already difficult task of public interest investigative journalism, which seeks to unearth truths that those with power wish to keep hidden. It requires media organisations prepared to invest in this genre of reporting, and if necessary, spend millions to defend it. </p>
<p>This is a tough ask in a news media environment where the lion’s share of advertising revenues that fund journalism has shifted away from legacy media to online competitors such as Google and Meta. McKenzie knew: </p>
<blockquote>
<p>It was vastly cheaper to settle and apologise than to fight, even when a paper had it right.</p>
</blockquote>
<p>Yet, despite these tough times, the journalists had their employer’s backing.</p>
<p>As Masters reminds us, watchdog reporting is different to everyday reporting. </p>
<blockquote>
<p>Investigative journalism is resource intensive and subject to eternal budgetary pressure. </p>
</blockquote>
<p>It also takes time – in this case, more than six years. Now, with Roberts-Smith announcing he will <a href="https://www.abc.net.au/news/2023-07-11/nsw-ben-roberts-smith-to-appeal-after-losing-defamation-case/102587878">appeal</a>, the end is unknown. In any case, “the burden stays with you, often well beyond publication,” writes Masters.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australian-defence-force-must-ensure-the-findings-against-ben-roberts-smith-are-not-the-end-of-the-story-206749">Australian Defence Force must ensure the findings against Ben Roberts-Smith are not the end of the story</a>
</strong>
</em>
</p>
<hr>
<h2>‘Dry-retching from stress’</h2>
<p>McKenzie, a 14-times Walkley award winner, confides that over his investigative career he’s thought of quitting. He admits there were days in the bathroom “dry-retching from stress”. Add to that, “war crimes were notoriously hard to investigate, even for police.” </p>
<p>Big obstacles, outside their control, conspired against their fact-finding. The resurrection of the Taliban made it hard to reach Afghan witnesses; COVID lockdowns made travel to investigate claims and bring witnesses to a Sydney courtroom tricky. </p>
<p>A tribal media, terribly divided, meant News Corp and Seven West Media gave Roberts-Smith glowing coverage. More curiously, Masters writes his former ABC Four Corners investigative journalism colleague Ross Coulthart was commissioned by Channel Seven’s commercial director, <a href="https://www.sevenwestmedia.com.au/about-us/management-team/">Bruce McWilliam</a>, to “interrogate our work”. </p>
<p>Coulthart claimed to have evidence that would vindicate Roberts-Smith. Masters reports that after Coulthart cancelled a meeting with McKenzie, he undermined the journalists by texting their boss, Nine’s group executive editor James Chessell, and offering to “help fix a looming disaster for him and the paper.” Chessell was not swayed.</p>
<p>In a further display of the raw power of money, and of media mates backing Roberts-Smith, Seven’s owner, Kerry Stokes, gave him an executive job at Seven and footed his massive legal bills. </p>
<p>A central theme of both books is trust, and with it, truth. With some of Seven’s stories painting Roberts-Smith as a hero, and directly targeting Masters, why should the public trust these two journalists, or any for that matter? </p>
<p>The media wars left Masters musing: </p>
<blockquote>
<p>Who would have anticipated that my opponents would be neither the government nor the Defence Force, but a constellation of friends, fellow journalists and a television network?</p>
</blockquote>
<p>And how could key sources, such as brave SAS comrades troubled by what they had experienced on their deployments, trust anyone with their story, let alone reporters? Especially, as theirs is a culture that demands secrecy and condemns those who speak ill of mates. These were giant hurdles McKenzie and Masters – and a few other talented colleagues at the ABC and Nine whose reporting added pieces to the puzzle – would overcome. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541406/original/file-20230807-17-3irzbj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Roberts-Smith meets the Queen in 2011 after being awarded the Victoria Cross.</span>
<span class="attribution"><span class="source">Anthony Devlin/AP</span></span>
</figcaption>
</figure>
<h2>‘Bloodings’ and ‘throwdowns’</h2>
<p>On the brink of a merger with Fairfax media in 2018, Nine Entertainment proved doubters wrong, backing its investigative reporters. With this institutional support over six years, McKenzie and Masters’ front-page stories in The Age, Sydney Morning Herald and Canberra Times, with special TV reports for Nine’s 60 minutes, alleged a very dark side to Roberts-Smith, exposing a broken culture within the Special Air Service (SAS) Regiment. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=913&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=913&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=913&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1147&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1147&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541427/original/file-20230807-29-24ggu2.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1147&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption"></span>
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<p>Roberts-Smith maintained he was a target of smear and lies because of jealousy over his medal success and hero status.</p>
<p>At the outset, Masters (like McKenzie) seriously considered “the proposition that some allegations might be driven by fear and loathing, rather than fact and logic, couldn’t be discounted”.</p>
<p>Prior to their investigations, rumours and allegations had been swirling about cruel and unlawful acts within the Australian special forces. These led to The Inspector-General of the Australian Defence Force Afghanistan Inquiry; also known as the Brereton report.</p>
<p>In 2020, that four-year inquiry, which examined a time period from 2005-2016, <a href="https://www.australiandefence.com.au/defence/general/brereton-igadf-redacted-report-released">concluded</a> there was “credible information” that outside the heat of battle, 39 individuals were unlawfully killed, a further two cruelly treated, and a total of 25 current or former ADF personnel were perpetrators. It added credence to Masters’ and McKenzie’s reportage these were not “fog of war” incidents and cast a long shadow over Roberts-Smith’s jealousy theory.</p>
<p>McKenzie’s and Masters’ evidence extended beyond a reliance on interviews, combining these with covert audio records, metadata of photographs from the front line, official documents, the journalists’ own observations of interviewees and informants over time, and more. In their books, they add the transcripts of court proceedings.</p>
<p>Given they worked so closely together, unsurprisingly their books are similarly structured, with a consistent and disturbing narrative about unlawful conduct in Australia’s longest war. </p>
<p>They introduce us to a lexicon of egregious acts consisting of “bloodings” (a rookie’s first kill ordered by a superior); “throw downs” (placing incriminating evidence on a dead body); “kill counts” and “drinking vessels” (such as the trophied prosthetic leg of a dead Afghan). </p>
<p>Both focus on Roberts-Smith’s striking physique (he is more than two metres tall) and Jekyll-and-Hyde character – charismatic and charming, but also a “frilled-neck lizard” if angered (as one detractor described him to Masters). But at the centre of their stories is the unlawful killings, as found by the Federal Court. </p>
<p>At times, they relay the same quotes and anecdotes, begging the question: why didn’t they continue the partnership? Masters’ in part answers that, writing: </p>
<blockquote>
<p>Nick and I worked well together as investigators, but regrettably could not co-ordinate the writing. We did try.</p>
</blockquote>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=917&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=917&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=917&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1152&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1152&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541428/original/file-20230807-25-noqhg2.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1152&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption"></span>
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<p>For his part, McKenzie speaks of a past falling out: “We’d had a bust-up over secrets,” but with the tincture of time attributes it to “mixing two fiercely focused journalists with their own inbuilt securities.” </p>
<p>Looked at another way, one can understand the catharsis of writing a personal account after such a long, hard journey. Investigative reporting is incredibly challenging and can be a deeply lonely experience. When I <a href="https://www.taylorfrancis.com/books/mono/10.4324/9781315514291/investigative-journalism-democracy-digital-age-andrea-carson">interviewed</a> Masters in 2011 about his famous Moonlight State investigation in Queensland in the 1980s, which exposed systemic police corruption, he told me:</p>
<blockquote>
<p>It is easy to get really angry with how lonely you feel when you are in a big fight that goes on forever, and it seems that so often you have to wear most of it on your own.</p>
</blockquote>
<p>Tough stories demand you put your life on hold, especially if you are facing legal action, which of course McKenzie and Masters were (with colleague David Wroe). But, this lawsuit trumped all others, labelled the “defamation case of the century”. </p>
<p>Days before the verdict, many feared for investigative journalism’s future. With court costs above A$25 million, media academic Tim Dwyer told <a href="https://www.theguardian.com/australia-news/2023/may/31/ben-roberts-smith-defamation-verdict-to-end-high-stakes-battle-between-australian-media-giants?ref=confidentialdaily.com">The Guardian</a> a loss would </p>
<blockquote>
<p>have a chilling effect on investigative journalism on all media organisations who pursue these kinds of very consequential public interest stories.</p>
</blockquote>
<p>He was right to be worried. While globally, investigative journalism has adapted to the age, parsing big data, utilising cross-border collaborations (such as the Panama Papers) and diversifying its funding to survive; in Australia’s concentrated media market, legacy media still pay most investigative journalism bills. </p>
<p>Masters, a rare breed as an underpaid freelance investigator and an Australian Media Hall of Fame inductee, notes that “the digital age was steadily eroding what was left of the traditional revenue base for important news journalism”.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-investigative-reporting-in-the-digital-age-is-waving-not-drowning-121045">Why investigative reporting in the digital age is waving, not drowning</a>
</strong>
</em>
</p>
<hr>
<h2>Moral order</h2>
<p>Days later relief struck. The Federal Court’s Justice Anthony Besanko found against Roberts-Smith. Masters’ and McKenzie’s legal team had established the substantial truth that the former SAS soldier had committed war crimes. </p>
<p>Among them, was that Roberts-Smith had killed an Afghan man who had a prosthetic leg at an insurgent stronghold known as Whisky 108, and kicked a farmer from near the village of Darwan, Ali Jan, off a cliff, before ordering another soldier to shoot him.</p>
<p>“I find that the applicant was not an honest and reliable witness in the many areas I will identify,” Justice Besanko <a href="https://www.judgments.fedcourt.gov.au/__data/assets/pdf_file/0004/640057/J230555.pdf">wrote</a> in his 726-page judgement. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law-206759">A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?</a>
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</p>
<hr>
<p>Investigative reporting involves questions of moral order. It gives the voiceless a voice – like Ali Jan. It differentiates between victims and villains. This long investigation had plenty of both. It also has some quiet heroes.</p>
<p>Both journalists identify special people who “put principle and moral institution first” as Masters describes it. Among them were former SAS captain turned politician Andrew Hastie; Age journalist and mentor to McKenzie, the late Michael Gordon; Nine’s lawyer, the late Sandy Dawson SC, and the sociologist who first lifted the lid on the SAS’s excessive, unsanctioned violence in a secret Defence Department report, Samantha Crompvoets. </p>
<p>To compare the two books is somewhat pointless. Both are well-written and substantial (Masters’ just over 500 pages, McKenzie’s just under). Naturally, there are points of difference in style. Masters walks the reader through greater detail of some events with more personal contemplation – perhaps reflecting the different stage of his journalism career, and his deep knowledge of soldiers’ dispositions and army culture, acquired when he was embedded in war zones.</p>
<p>McKenzie artfully uses literary devices, such as first and third person narratives, to weave together multiple threads. These cover matters such as the progress of the investigation, the unfolding court room drama, and the personal toll of more than six years of painstakingly putting together the pieces to show a necessary, but ugly, truth. </p>
<p>A key, and somewhat distracting difference, is Masters is more reserved in naming names than McKenzie. He insists on using pseudonyms that can become confusing given the long list of characters in this story. </p>
<p>Both Masters and McKenzie knew from hearing Roberts-Smith’s voice on covert tapes leaked by a source that his “greatest hate” was reserved for them. “On the tape he made it clear he would do anything to bring us down,” McKenzie writes.</p>
<p>Investigative reporting is an extraordinarily stressful job, and McKenzie reveals throughout his book his battle with controlling his anxiety. Masters, for his part, is more understated, “being sued is not fun,” he writes, and being a freelance investigative reporter is a tough way to make a living: </p>
<blockquote>
<p>For a freelance investigative journalist like me, the deal is a miserly one. We get the conventional dollar a word rate, irrespective of the time and effort applied.</p>
</blockquote>
<p>War has always been the stuff of myth-making from the Anzacs to the present day. Both books shake the blind beliefs of those who unquestionably only see what they want to see – a war hero.</p>
<p>Of course, life is rarely that simple – and McKenzie colours in the outlines to show a deeper reality, with all its hues, concluding that a man recognised as a war hero, could also be described as “a war criminal, a bully and a liar.” </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/what-should-the-australian-war-memorial-do-with-its-heroic-portraits-of-ben-roberts-smith-206934">What should the Australian War Memorial do with its heroic portraits of Ben Roberts-Smith?</a>
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<h2>Questions</h2>
<p>After finishing the two volumes, questions linger. How did the most senior ranks of the Australian military not know what was <em>really</em> going on?</p>
<p>How did the politicians who sent the same soldiers on multiple, lengthy missions to Afghanistan to risk suicide bombers and <a href="https://www.sbs.com.au/news/article/australian-troops-constantly-fear-green-on-blue-attacks/x0ryzacz1">green-on-blue-attacks</a> from men wearing Afghan uniforms, not think such exposure might recalibrate a soldier’s moral compass? </p>
<p>Masters gives us some insight: </p>
<blockquote>
<p>With special forces, secrecy was encoded, along with a bias for offensive action. </p>
</blockquote>
<p>Both books will appeal to a general audience, but also specifically to academics, students and practitioners of journalism with their contemplation of what it is to be an investigative journalist in uncertain times for Australian news media.
They show the salves of truth-telling, an independent judiciary and investigative reporting’s role in democratic accountability.</p>
<p>It must be remembered that Roberts-Smith continues to maintain his innocence, and is appealing the Federal Court decision. So for both McKenzie and Masters, the story is not over.</p>
<p>As to the opening dilemma? My advice is to read them both.</p><img src="https://counter.theconversation.com/content/209494/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrea Carson is a member of the research committee of the Public Interest Journalism Initiative (PIJI) and author of Investigative Journalism, Democracy and the Public Sphere (2020). She was previously a journalist with the Age (1997-2001) and radio producer at ABC Melbourne (2004-2010).</span></em></p>Two books by Nick McKenzie and Chris Masters about their reporting on Ben Roberts-Smith shed light on money, power, myth-making and the importance of investigative journalism.Andrea Carson, Professor of Political Communication, Department of Politics, Media and Philosophy, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2077172023-06-23T12:27:51Z2023-06-23T12:27:51ZThere is no legal reason the US can’t supply cluster bombs to Ukraine – but that doesn’t justify Biden’s decision to do so<figure><img src="https://images.theconversation.com/files/533480/original/file-20230622-5172-r9f59p.jpg?ixlib=rb-1.1.0&rect=19%2C25%2C4214%2C2799&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The remains of a rocket that carried cluster munitions found in a Ukrainian field.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-remains-of-a-rocket-that-carried-cluster-munitions-news-photo/1258233929?adppopup=true">Alice Martins/For The Washington Post via Getty Images</a></span></figcaption></figure><p>The Biden administration announced on July 7, 2023, that it would <a href="https://www.reuters.com/world/us-cluster-munitions-ukraine-expected-fridays-800m-aid-package-2023-07-07/">send cluster bombs to Ukraine</a> – a deeply controversial move given the munition is prohibited by more than 120 countries because of risks to civilian populations.</p>
<p>The U.S. has been here before. It <a href="https://www.cnn.com/2016/02/29/politics/saudi-arabia-us-cluster-bombs-on-civilians/index.html">provided Saudi Arabia with cluster munitions</a> – which <a href="http://www.stopclustermunitions.org/en-gb/cluster-bombs/what-is-a-cluster-bomb.aspx">contain bomblets that can scatter</a> across a wide area, often not exploding until later – during the kingdom’s <a href="https://www.bbc.com/news/world-middle-east-44466574">military intervention in Yemen</a>.</p>
<p>Washington <a href="https://foreignpolicy.com/2016/05/27/exclusive-white-house-blocks-transfer-of-cluster-bombs-to-saudi-arabia/">suspended sales of cluster bombs to the Saudis</a> in 2016 following mounting concern over the <a href="https://www.amnesty.org/en/latest/news/2016/05/yemen-children-among-civilians-killed-and-maimed-in-cluster-bomb-minefields/">toll they were taking on civilian lives</a>. But the U.S. is still <a href="https://www.commondreams.org/news/2022/03/09/coalition-calls-us-swiftly-ratify-global-treaty-banning-cluster-bombs">holding out from joining</a> an <a href="http://www.stopclustermunitions.org/en-gb/home.aspx">international ban on cluster bombs</a>.</p>
<p>As a <a href="https://www.wcl.american.edu/community/faculty/profile/goldman/bio">scholar of the law of war</a>, I know that cluster bombs highlight a reality about the use and regulation of weapons, even those that can cause widespread civilian suffering: These munitions are not in themselves illegal, but their usage can be. Furthermore, the decision by the U.S. to provide Ukraine with cluster bombs could weaken the argument against others’ doing likewise. And that, in turn, could increase the chances of cluster bombs’ being deployed illegally.</p>
<h2>Effective or indiscriminate?</h2>
<p>Cluster munitions have been <a href="https://www.icrc.org/en/doc/resources/documents/legal-fact-sheet/cluster-munitions-factsheet-230710.htm#:%7E:text=Cluster%20munitions%20were%20first%20used,to%20kill%20or%20injure%20combatants.">part of nations’ arsenals since World War II</a>. Delivered by air or ground artillery, they have been used by the <a href="https://asiasociety.org/northern-california/legacies-war-laos">United States in Laos and Vietnam</a> during the Vietnam War, <a href="https://www.aljazeera.com/news/2015/8/13/life-among-israeli-cluster-bombs-in-lebanon#:%7E:text=Four%20million%20cluster%20munitions%20were,spread%20across%2015.23%20square%20kilometres.">Israel in southern Lebanon</a>, <a href="http://www.stopclustermunitions.org/en-gb/cluster-bombs/use-of-cluster-bombs/a-timeline-of-cluster-bomb-use.aspx">the U.S. and U.K. in Iraq</a>, Russia and Syria <a href="https://www.hrw.org/news/2016/07/28/russia/syria-widespread-new-cluster-munition-use">in the ongoing Syrian civil war</a>, and the <a href="https://www.hrw.org/news/2016/05/06/yemen-saudis-using-us-cluster-munitions">Saudis in Yemen</a>. And now they are being <a href="http://www.the-monitor.org/media/3348257/Cluster-Munition-Monitor-2022-Web_HR.pdf">deployed in Ukraine</a>. </p>
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<p>If deployed responsibly, they can be an effective military tool. Because they can spread hundreds of bomblets across a wide area, they can prove a potent weapon against concentrations of enemy troops and their weapons on a battlefield. In 2017, a <a href="https://dod.defense.gov/Portals/1/Documents/pubs/DOD-POLICY-ON-CLUSTER-MUNITIONS-OSD071415-17.pdf">U.S. Department of Defense memo</a> said cluster munitions provided a “necessary capability” when confronted with “massed formation of enemy forces, individual targets dispersed over a defined area, targets whose precise location are not known, and time-sensitive or moving targets.” And on June 22, 2023, <a href="https://twitter.com/laraseligman/status/1671935568664559632">it was reported</a> that the Department of Defense has concluded that cluster bombs would be useful if deployed against “dug-in” Russian positions in Ukraine.</p>
<p>Indeed, <a href="https://dod.defense.gov/Portals/1/Documents/pubs/DOD-POLICY-ON-CLUSTER-MUNITIONS-OSD071415-17.pdf">the Department of Defense argued</a> that in some limited circumstances cluster bombs can be less destructive to civilians. In Vietnam, the U.S. sanctioned the use of cluster bombs – over more powerful bombs – to disrupt transport links and enemy positions while <a href="https://biotech.law.lsu.edu/cases/nat-sec/Vietnam/Linebacker-and-the-Law-of-War.html">minimizing the risk of destroying nearby dikes</a>, which would have flooded rice fields and caused widespread suffering to villagers.</p>
<p>Still, their use has always been controversial. The problem is that not all the bomblets explode on impact. Many remain on the ground, unexploded until they are later disturbed – and that increases the chances of civilians’ being maimed or killed. Their use in urban settings is particularly problematic, as they cannot be directed at a specific military target and are just as likely to strike civilians and their homes.</p>
<h2>Cluster bombs under international law</h2>
<p>Concern over the risk to civilian harm led in 2008 to a <a href="https://www.icrc.org/en/document/2008-convention-cluster-munitions#:%7E:text=The%20Convention%20on%20Cluster%20Munitions,international%20treaty%20prohibiting%20these%20weapons.">Convention on Cluster Munitions</a>, which bans their use, production or sale by member states.</p>
<p>But as of 2023, the convention is legally binding for only the 123 states that are signatories – and Ukraine, Russia and the U.S. are not among them. Nor can they – or any of the other countries yet to sign up to the convention – be compelled to join the ban.</p>
<p>As such, there is no legal reason that Ukraine or Russia cannot deploy cluster bombs in the current conflict – as <a href="http://www.the-monitor.org/media/3348257/Cluster-Munition-Monitor-2022-Web_HR.pdf">both have done</a> since the invasion of February 2022. Nor is there any legal reason the Biden administration can’t sell the munitions to Ukraine.</p>
<p>But there are laws that set out how cluster bombs can be used, and how they must not.</p>
<p>The relevant part of international humanitarian law here is 1977’s <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977">Additional Protocol I</a> to the <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">Geneva Conventions</a>, which both Ukraine and Russia have ratified. The additional protocol sets out rules the warring parties must observe to limit harm to civilians. Acknowledging that civilian deaths are an inevitable part of war, <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51">Article 51 of Additional Protocol I</a> prohibits “indiscrimate” attacks. Such attacks include those employing a weapon that cannot be directed at a specific military target or of such a nature to strike military targets and civilians and civilian objects without distinction.</p>
<p>Meanwhile, <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-57">Article 57 of the additional protocol</a> stresses that attacking armies have a duty of care to spare civilian populations. This includes taking “all feasible precautions in the choice of means and method of attack.”</p>
<p>Neither article specifies any weapons deemed off-limits. Rather, it is how the weapons are used that determines whether the attack constitutes an indiscriminate one and hence a crime under international law.</p>
<h2>More than an ‘optical’ risk?</h2>
<p>Even if cluster bombs are not inherently indiscriminate – a claim that <a href="https://www.amnesty.org/en/latest/research/2022/06/anyone-can-die-at-any-time-kharkiv/">advocates of an international ban</a> put forward – their use in urban settings greatly increases the chance of civilian harm. In 2021, <a href="http://www.the-monitor.org/media/3348668/CMM2022_PPT.pdf">97% of cluster bomb casualties were civilians</a>, two-thirds of whom were children. And the experience of cluster bomb use in Syria and Yemen shows that it can be difficult to hold governments to account.</p>
<p>Which is why Ukraine’s request for U.S. cluster munitions has led to concerns. The <a href="http://www.the-monitor.org/media/3348257/Cluster-Munition-Monitor-2022-Web_HR.pdf">Cluster Munitions Monitor</a>, which logs international use of the bombs, found that as of August 2022, Ukraine was the only active conflict zone where cluster bombs were being deployed – with Russia using the weapon “extensively” since its invasion, and Ukraine also deploying cluster bombs on a handful of occasions.</p>
<p>Ukraine <a href="https://www.reuters.com/world/europe/ukraine-seeks-us-cluster-bombs-adapt-drone-use-lawmakers-2023-03-06/">reportedly sought some of the United States’ stockpile</a> of Cold War-era MK-20 cluster bombs to drop on Russian positions via drones. The White House had previously <a href="https://www.politico.com/news/2022/12/09/biden-administration-ukraine-cluster-munitions-00073316">aired “concern</a>” over the transfer.</p>
<p>In announcing the decision to send U.S.-made cluster bombs to Ukraine, Jake Sullivan, President Joe Biden’s national security adviser, <a href="https://www.reuters.com/world/us-cluster-munitions-ukraine-expected-fridays-800m-aid-package-2023-07-07/">noted that</a> “cluster munitions create a risk of civilian harm from unexploded ordnance,” adding: “This is why we’ve deferred the decision for as long as we could.”</p>
<p>The Biden administration’s earlier hesitancy was <a href="https://www.politico.com/news/2022/12/09/biden-administration-ukraine-cluster-munitions-00073316">reportedly over the “optics</a>” of selling cluster bombs and that it may introducing a wedge between the U.S. and other NATO countries over the weapon’s use. </p>
<p>Certainly, there would be very little legal risk under international law of providing cluster bombs to Ukraine – or any other nation – even if that country were to use the weapon illegally.</p>
<p>There is no case I know of in which a state has been found legally responsible for providing weapons to another that flagrantly misuses them – there is no equivalent to efforts in the U.S. seeking to hold gun manufacturers <a href="https://www.reuters.com/world/us/can-us-gunmakers-be-liable-mass-shooting-2022-05-25/">legally responsible for mass shootings</a>, or state “<a href="https://www.law.cornell.edu/wex/dram_shop_rule">dram shop laws</a>” that hold the suppliers of alcohol culpable for the actions of an inebriated driver.</p>
<p>Yet one of the things that worried people in Congress regarding the sale of cluster bombs to Saudi Arabia was that the Saudis’ <a href="https://www.hrw.org/news/2016/01/07/yemen-coalition-drops-cluster-bombs-capital">consistently indiscriminate use of those weapons</a> in Yemen could be seen at home and abroad as making the U.S. complicit in those violations.</p>
<p>I would argue that it became difficult for Washington to continue to supply the Saudis on moral ground. But still, there was and is presently no clear-cut legal obligation for the U.S. to stop supplying other nations with cluster bombs.</p>
<p>In my opinion, it is highly unlikely that Ukraine will deliberately use U.S.-supplied cluster munitions to target civilians and their environs. </p>
<p>And Ukraine provided “written assurances that it is going to use these in a very careful way,” Sullivan said in announcing the transfer.</p>
<p>Nonetheless, providing Ukraine with cluster weapons could serve to destigmatize them and runs counter to international efforts to end their use. And that, in turn, could encourage – or excuse – their use by other states that may be less responsible.</p>
<p><em>Editor’s note: This story was updated on July 7, 2023, in light of the Biden administration’s decision to supply Ukraine with cluster bombs.</em></p><img src="https://counter.theconversation.com/content/207717/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Goldman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The US administration said that it had received ‘written assurances’ from Ukraine that it would use cluster bombs carefully. Nonetheless, the munition will provide an additional risk to civilians.Robert Goldman, Professor of Law, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2081802023-06-21T07:11:53Z2023-06-21T07:11:53ZThe International Criminal Court is unlikely to prosecute alleged Australian war crimes – here’s why<p>For the first time, Australians have been referred to the International Criminal Court (ICC) for investigation into alleged Afghan war crimes. </p>
<p>That <a href="https://www.smh.com.au/national/jacqui-lambie-asks-icc-to-investigate-adf-leaders-over-alleged-war-crimes-20230620-p5di30.html">Senator Jacqui Lambie</a> has instigated this process is even more extraordinary as it’s the first time any Australian MP has taken that step. </p>
<p>Lambie’s ICC referral focuses on the legal responsibility of Australian Defence Force (ADF) commanders who knew, or should have known, about alleged war crimes committed by their forces in Afghanistan. </p>
<p>This move by Lambie may not lead to any formal action by the ICC, but it does shine a spotlight on how Australia is responding to these claims.</p>
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<h2>Why the ICC is unlikely to act</h2>
<p>The court will no doubt acknowledge receipt of Lambie’s referral, but it is doubtful whether it would commence an active investigation given the ongoing work of the <a href="https://www.osi.gov.au/">Office of the Special Investigator</a> established in 2021, with Mark Weinberg as the lead investigator.</p>
<p>In a <a href="https://www.osi.gov.au/news-resources/director-generals-opening-statement-budget-estimates-2023-24">Senate Estimates</a> hearing in May, Chris Moraitis, the office’s director-general, said up to 40 alleged acts are currently being investigated by his office and the Australian Federal Police. </p>
<p>In March, the <a href="https://www.hrw.org/news/2023/03/22/first-australian-soldier-charged-over-alleged-war-crime-afghanistan">first charge</a> was brought against a former Australian soldier, <a href="https://www.theguardian.com/world/2023/mar/20/former-sas-soldier-oliver-schulz-arrested-alleged-war-crime-accused-of-killing-afghan-civilian">Oliver Schulz</a>. He was accused of the war crime of murder under the Commonwealth Criminal Code. </p>
<p>No further details have been released as to current and former defence personnel who are under investigation. But the Office of the Special Investigator’s mandate is to consider all ADF conduct in Afghanistan from 2005-16, which will include senior officers and commanders. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-investigating-potential-war-crimes-in-afghanistan-just-became-much-harder-and-could-take-years-171412">Why investigating potential war crimes in Afghanistan just became much harder – and could take years</a>
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<p>The office is also not limited to the allegations investigated and reported on in the 2020 <a href="https://www.defence.gov.au/about/reviews-inquiries/afghanistan-inquiry">Brereton Report</a>. It has its own mandate and can conduct its own investigations.</p>
<p>The ICC was only ever intended as a court of last resort in these matters. That means it will only investigate and prosecute people for alleged war crimes when a country is unwilling or unable to do so itself. </p>
<p>This may arise if the state is incapable of pursuing prosecutions because of disorder or unrest, or because of the collapse of a national judicial system. None of these situations currently exist in Australia.</p>
<p>The ICC is also incredibly busy with its ongoing investigation into war crimes allegations in Ukraine, which are occurring in real time on a near-daily basis. </p>
<p>This is on top of its other work. To date, the ICC prosecutor has received some <a href="https://www.icc-cpi.int/about/otp">12,000 requests</a> to investigate alleged war crimes committed worldwide over the past 20 years. </p>
<h2>What the ICC is investigating in Afghanistan</h2>
<p>The legal landscape for war crimes prosecutions has radically changed in recent decades due to the creation of the ICC. </p>
<p>The court has jurisdiction with respect to war crimes committed by the nationals of state parties, such as Australia. Its jurisdiction extends to “grave breaches” of the laws of war, which sets a high threshold for the most serious and egregious acts. </p>
<p>Presently, the ICC prosecutor is already investigating alleged crimes against humanity and war crimes committed by various sides in the Afghan conflict including Australian, UK and Taliban forces and the Islamic State - <a href="https://apnews.com/article/afghanistan-crime-war-crimes-taliban-international-criminal-court-570bfa1f57f912f5ac49df2c1f301144">dating back to the early 2000s</a>. The US is not a member of the court and does not respect its jurisdiction. </p>
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<p>With regard to Australian soldiers, Lambie’s concern is that the Office of the Special Investigator is focused on troops and officers, not ADF commanders. </p>
<p>International criminal law and the ICC recognise “<a href="https://guide-humanitarian-law.org/content/article/3/duty-of-commanders/">command responsibility</a>”, which is the legal responsibility of commanders when their forces commit war crimes. However, commanders must have directed such conduct or had reasonable knowledge that such conduct was being committed. </p>
<p>Australia has been an enthusiastic supporter of the ICC, but its recognition of ICC jurisdiction was contingent on a formal <a href="https://pmtranscripts.pmc.gov.au/release/transcript-12811">declaration</a> in 2002 made by the Howard government which provided, in part, that </p>
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<p>no person will be surrendered to the court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes. </p>
</blockquote>
<p>Additionally, Australia would only surrender a person to the ICC for prosecution following the Commonwealth attorney-general issuing a certificate. </p>
<p>The government response to the Brereton Report – with its establishment of the Office of the Special Investigator – means it is taking the lead in prosecuting war crimes allegations. As such, an Australian soldier or commander would only be handed over to the ICC in the most exceptional of cases.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/stripping-medals-from-soldiers-is-murky-territory-and-must-not-distract-from-investigating-alleged-war-crimes-207615">Stripping medals from soldiers is murky territory, and must not distract from investigating alleged war crimes</a>
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<h2>Australia’s experience in war crimes prosecutions</h2>
<p>Over the past seven years, we have gotten a much clearer picture of the alleged actions of Australian soldiers in Afghanistan. Much was revealed in investigative reports by the Nine newspapers, which was highlighted during former SAS corporal Ben Roberts-Smith’s <a href="https://theconversation.com/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law-206759">recent defamation case</a>. </p>
<p>The legal system will likely soon be dealing with a wave of war crimes charges arising from the Brereton Report and the work of the Office of the Special Investigator and Australian Federal Police.</p>
<p>Australia has no recent history of war crimes trials involving Australian soldiers. However, following the second world war, Australia was involved in the International Military Tribunal for the Far East in Tokyo, which was established to prosecute Japanese war crimes suspects. Japanese soldiers were also prosecuted between 1945 and 1951 in Australian military courts. </p>
<p>More recently, <a href="https://www.abc.net.au/news/2018-05-20/nazi-war-criminals-in-australia-and-the-case-of-polyukhovich/9756454">Ivan Polyukhovich</a>, a former Nazi soldier who became an Australian citizen in 1958, was put on trial in Australia for alleged war crimes committed in Ukraine between 1942-43. He was ultimately acquitted by the South Australian Supreme Court in 1993. </p>
<p>Australia may now be on the brink of its first modern war crimes trial, though, with the <a href="https://www.news.com.au/national/nsw-act/courts-law/exsoldier-has-bail-varied-over-alleged-wartime-murder-of-afghan-villager/news-story/538d440ba3b32c5a826513ba4ae27e46">prosecution of Oliver Schulz</a>. </p>
<p>The Australian legal system is about to be severely tested. As difficult as these legal processes may well be for the nation, the public will have a legitimate expectation these allegations are scrutinised in court. Lambie’s actions have reinforced that expectation.</p><img src="https://counter.theconversation.com/content/208180/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald Rothwell receives funding from Australian Research Council.</span></em></p>The ICC was only ever intended as a court of last resort, meaning it will only investigate and prosecute people for alleged war crimes when a country is unwilling or unable to do so itself.Donald Rothwell, Professor of International Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2076152023-06-14T20:09:13Z2023-06-14T20:09:13ZStripping medals from soldiers is murky territory, and must not distract from investigating alleged war crimes<figure><img src="https://images.theconversation.com/files/531833/original/file-20230614-29-dxqwmr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Dave Hunt/AAP</span></span></figcaption></figure><p>It could be years before Ben Roberts-Smith and others are stripped of military awards for their service in Afghanistan and face Australian criminal court on war crimes charges, if in fact that ever happens. </p>
<p>Investigations of war crimes are <a href="https://theconversation.com/why-investigating-potential-war-crimes-in-afghanistan-just-became-much-harder-and-could-take-years-171412">difficult and time-consuming</a>. In the meantime, calls for the Defence Department to continue to address the allegations against Australian Defence Force personnel have grown louder. </p>
<p>In the case of Roberts-Smith, the investigation is now being undertaken by a <a href="https://www.theage.com.au/national/massive-blow-afp-war-crimes-probe-collapses-over-risk-of-tainted-evidence-20230613-p5dg7c.html">joint taskforce</a> from the Office of the Special Investigator and the Australian Federal Police, rather than the AFP on its own. The decision to move the investigation resulted from issues with how evidence that could be used in a criminal case was collected in the Brereton inquiry. Such problems with evidence are difficult for investigation teams and courts that are not specifically designed to deal with war crimes. </p>
<p>Debate has also arisen in Australia over whether commanders as well as direct perpetrators ought to be held <a href="https://theconversation.com/why-australian-commanders-need-to-be-held-responsible-for-alleged-war-crimes-in-afghanistan-151030">responsible</a> for war crimes, and what the leadership failings in Afghanistan were. Such debates are relevant to the issue of individual and unit awards and honours.</p>
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<img alt="" src="https://images.theconversation.com/files/531555/original/file-20230613-21-fkv5cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531555/original/file-20230613-21-fkv5cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531555/original/file-20230613-21-fkv5cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531555/original/file-20230613-21-fkv5cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531555/original/file-20230613-21-fkv5cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531555/original/file-20230613-21-fkv5cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531555/original/file-20230613-21-fkv5cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Over 26,000 Australian security personnel served in the Afghanistan war.</span>
<span class="attribution"><span class="source">Alex Ellinghausen</span></span>
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<h2>Australia’s obligations under the Rome Statute</h2>
<p>The public debate – and even <a href="https://www.theguardian.com/commentisfree/2023/jun/09/australias-military-should-be-held-to-account-but-its-the-individual-soldier-who-pulls-the-trigger">expert opinion</a> – has tended to overlook the fact that Australia’s response to the alleged war crimes in Afghanistan is governed primarily by its international obligations. These obligations outweigh any views about war crimes that may be held within the defence community or the general public.</p>
<p>Administrative measures undertaken by Defence cannot substitute for war crimes prosecutions. Australia is a full party to the <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">1998 Rome Statute</a>, which is the cornerstone of international war crimes law and is reflected in Australia’s <a href="https://www.ag.gov.au/about-us/publications/attorney-generals-department-annual-report-2017-18/appendixes/appendix-3-international-criminal-court">own domestic law</a> covering war crimes. </p>
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Read more:
<a href="https://theconversation.com/why-investigating-potential-war-crimes-in-afghanistan-just-became-much-harder-and-could-take-years-171412">Why investigating potential war crimes in Afghanistan just became much harder – and could take years</a>
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<p>The Rome Statute requires that Australia fully investigate and punish war crimes committed by its forces, at all ranks. Australia has conducted war crimes trials of enemy combatants <a href="https://theconversation.com/why-australian-commanders-need-to-be-held-responsible-for-alleged-war-crimes-in-afghanistan-151030">in the past</a>, in which it has found direct perpetrators, their local commanders and their senior officers guilty of war crimes and has punished them accordingly. </p>
<p>To fail to comprehensively prosecute alleged war crimes now, because the defendants would be Australian, is a morally and politically untenable position. Comprehensive trials also offer the only path to the public understanding where culpability for war crimes sits along the military chain of command.</p>
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<h2>Removing medals and citations</h2>
<p>The prompt removal of medals and citations, however, would provide Defence with an opportunity to condemn war crimes immediately, rather than waiting until formal trials can be held.</p>
<p>Defence honours and awards in Australia are awarded through an administrative process. Though awards have been revoked in the past for dishonourable conduct, it remains an unusual step. The process of conferring or revoking a high-level award needs the support of the government. </p>
<p>The Australian Defence Force has been criticised for <a href="https://www.theguardian.com/australia-news/2023/mar/01/adf-taking-too-long-to-enact-reforms-after-afghanistan-war-crimes-inquiry-watchdog-warns">moving too slowly</a> to address public concerns over its record in Afghanistan. However, some attempts have been made. </p>
<p>In the aftermath of the <a href="https://www.defence.gov.au/about/reviews-inquiries/afghanistan-inquiry">Brereton Report</a>, Chief of the Defence Force General Angus Campbell announced the Special Operations Task Group would be stripped of a Meritorious Unit Citation for conduct in Afghanistan. The announcement caused a media and political uproar, and then Prime Minister Scott Morrison <a href="https://www.abc.net.au/news/2020-11-30/defence-says-no-decision-yet-on-meritorious-citation-afghanistan/12935302">reversed</a> the decision. </p>
<p>It has since emerged that at least three <a href="https://insidestory.org.au/breretons-unfinished-business/">senior officers</a>, including <a href="https://www.smh.com.au/national/defence-chief-angus-campbell-tried-to-hand-back-his-afghanistan-medal-but-was-refused-20230612-p5dfs6.html">Campbell</a>, have attempted to return their own medals, awarded for distinguished command and leadership in action. In all three cases, the Coalition government denied this request. </p>
<p>Campbell has reportedly asked a group of former commanding officers to <a href="https://www.abc.net.au/radionational/programs/drive/jacqui-lambie-fury-over-defence-chief-letters/102423354">return their medals</a>. In Senate Estimates, he stated such a move would represent a step towards accountability for the command failures in the Afghanistan operation.</p>
<p>The Labor government has appeared <a href="https://www.canberratimes.com.au/story/7997036/defence-chief-cleared-to-strip-medals/">more willing</a> for medals and awards to be handed back or stripped than its Coalition predecessor was. </p>
<p>The problems that Campbell has encountered in attempting to revoke honours, and in trying to hand his own back, highlight the fact that commendations have both military and political significance – which makes any decision to revoke honours particularly difficult.</p>
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<img alt="" src="https://images.theconversation.com/files/531834/original/file-20230614-21-zdp3hb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531834/original/file-20230614-21-zdp3hb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531834/original/file-20230614-21-zdp3hb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531834/original/file-20230614-21-zdp3hb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531834/original/file-20230614-21-zdp3hb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531834/original/file-20230614-21-zdp3hb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531834/original/file-20230614-21-zdp3hb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">ADF chief Angus Campbell has attempted to strip officers of their medals, and to hand back his own, both to no avail.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
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<h2>Will the minister strip Roberts-Smith of his VC?</h2>
<p>Ben Roberts-Smith is the public figurehead of Australia’s war crimes saga, so it is no surprise questions have been raised over whether he ought to keep his Victoria Cross. He was awarded the VC for an earlier action that is not connected with allegations of war crimes against him. </p>
<p>No Australian has ever had a VC revoked. </p>
<p>While a number of VCs were revoked in the United Kingdom, mostly during the 19th century, revocation has since been the subject of <a href="https://insidestory.org.au/double-edged-sword/">high-level debate</a>.</p>
<p>In the defamation case, a civil court found on the balance of probabilities that Roberts-Smith had committed war crimes, but these actions do not technically erode the validity of his VC. At the same time, his earlier bravery did not protect him from allegations of war crimes, and there remains a moral and legal obligation for him to face criminal justice.</p>
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Read more:
<a href="https://theconversation.com/australian-defence-force-must-ensure-the-findings-against-ben-roberts-smith-are-not-the-end-of-the-story-206749">Australian Defence Force must ensure the findings against Ben Roberts-Smith are not the end of the story</a>
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<p>At face value, Roberts-Smith and his VC seem to be a different case – the medal was awarded to one soldier, for one action. To some, however, the medal seems also to mark out the recipient as a hero, or at least as a person of superior character. In this light, calls for the VC to be revoked in the wake of the defamation case are understandable.</p>
<p>As Australians reckon with this new and dark chapter of the country’s military history, the public will continue to ask who is most to blame for alleged war crimes committed by Australian forces in Afghanistan, until the question is comprehensively examined in the criminal court.</p><img src="https://counter.theconversation.com/content/207615/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dean Aszkielowicz has previously received funding from the Army Research Scheme.</span></em></p><p class="fine-print"><em><span>Paul Taucher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The awarding, and revoking, of military medals is more complex than it appears, and is no replacement for the proper investigation of alleged war crimes.Dean Aszkielowicz, Senior Lecturer in History and Politics, Murdoch UniversityPaul Taucher, Lecturer in History, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2067492023-06-02T02:53:04Z2023-06-02T02:53:04ZAustralian Defence Force must ensure the findings against Ben Roberts-Smith are not the end of the story<p>On Thursday, Justice Anthony Besanko of the Federal Court dismissed defamation proceedings brought by former Special Air Service soldier Ben Roberts-Smith against several Australian news outlets. </p>
<p>The court found that reporting by Nick McKenzie, Chris Masters and David Wroe had satisfactorily established the truth of several serious imputations against Roberts-Smith. These included claims he committed war crimes during his service in Afghanistan. </p>
<p>The judgement is a landmark moment in Australian military history, with implications for the investigation and potential prosecution of other Australians suspected of war crimes. The explosive evidence heard in the case also underlines the need for the Army, the broader defence community and the Australian public to reckon fully with the conduct of Australian forces in the Afghanistan campaign.</p>
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<a href="https://theconversation.com/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law-206759">A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?</a>
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<h2>Standards of proof and evidence</h2>
<p>Roberts-Smith could conceivably face criminal prosecution for the alleged murders at a future war crimes trial. This case was a civil proceeding, meaning the imputations only needed to be proven true on the balance of probabilities, a substantially lower requirement than proof beyond a reasonable doubt, which would be required in a criminal trial.</p>
<p>Because of the different standards of proof, it is not certain Roberts-Smith would be found guilty in a war crimes trial, assuming all the same evidence was called. Prosecutors will be concerned, moreover, that the outcome of the high-profile defamation trial might influence a future war crimes proceeding. </p>
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<p>It is likely any criminal trial for Roberts-Smith will be held before a judge, without a jury. It is not unusual for a war crimes trial to be held without a jury; past Australian trials were held before a panel of three to five judges, all of whom were military officers.</p>
<p>Another way to overcome the problem of the defamation outcome poisoning a future criminal trial in Australia would be for the government to hand Roberts-Smith over to the International Criminal Court in the Hague, a court with long experience in dealing with very high profile war crimes cases. However, doing so would probably be deeply unpopular and signal to the world that Australia cannot dispense its own military justice.</p>
<h2>Contextual truth</h2>
<p>Some imputations against Roberts-Smith were not substantiated at the defamation trial. However, Justice Besanko found that these defamatory statements, which concerned threatening a fellow soldier and domestic violence, were nonetheless contextually true. This ruling means the newspapers are not liable for these imputations because the more injurious claims, including war crimes, were found to be true, so the defendant would suffer no further reputational damage.</p>
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<h2>Broader implications</h2>
<p>It remains to be seen what the full reaction to Thursday’s judgement will be. Roberts-Smith still holds the Victoria Cross, the country’s highest military honour. He received financial support for the case from Kerry Stokes – who, from 2015 to 2022, was chair of the Australian War Memorial. Stokes allegedly referred to McKenzie and Masters as “<a href="https://www.smh.com.au/business/companies/seven-billionaire-kerry-stokes-blasts-scumbag-journalists-over-roberts-smith-coverage-20221110-p5bx6g.html">scumbag journalists</a>”. </p>
<p>While the memorial as an institution did not support Roberts-Smith with the case, <a href="https://www.theguardian.com/australia-news/2021/apr/12/kerry-stokes-to-remain-war-memorial-chair-despite-criticism-of-his-support-for-ben-roberts-smith">Stokes remained as chair</a> even after his role was publicly questioned. The interpretation from some quarters that reporting on Roberts-Smith constitutes unfair criticism of a war hero will persist. Others, of course, will see it as exactly the job investigative reporting is meant to do.</p>
<p>The Australian Defence Force has taken the allegations brought forward by journalists and other sources seriously. It commissioned Paul Brereton’s Afghanistan inquiry and appears to accept that the conduct of some Australian personnel was potentially illegal.</p>
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Read more:
<a href="https://theconversation.com/why-investigating-potential-war-crimes-in-afghanistan-just-became-much-harder-and-could-take-years-171412">Why investigating potential war crimes in Afghanistan just became much harder – and could take years</a>
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<p>While the findings in the defamation case support the ADF’s position that an inquiry was needed, the case was not a “<a href="https://www.reuters.com/world/asia-pacific/australian-defamation-court-proxy-war-crimes-trial-nears-judgement-2023-05-30/">proxy war crimes trial</a>”. It does not deliver justice for alleged war crimes. Only properly convened war crimes trials can answer the questions that hover over Australian conduct in Afghanistan, <a href="https://theconversation.com/why-australian-commanders-need-to-be-held-responsible-for-alleged-war-crimes-in-afghanistan-151030">including the role of commanding officers</a>.</p>
<p>War crimes trials, however, take significant institutional momentum to convene and sustain: they are costly, long-running and controversial. The challenge for the ADF now is to continue to support the thorough investigation of alleged war crimes and to pursue criminal prosecution where it is warranted. </p>
<p>Since the second world war, Australia has positioned itself internationally as a champion of the laws and proper conduct of war. Australian forces have been deployed to many difficult conflicts, where they have largely been trusted operators. </p>
<p>The judgement in this case ought to have minimal impact on Australian forces who are deployed overseas, as following the rules of war is assumed to be part of any mission they undertake. If the case does come as a wake-up call to some, then the ADF will have to further assess its training on the laws of war, its leadership, and its culture. </p>
<p>The Roberts-Smith case, the finding against him and the graphic detail in the publicly available evidence made headlines around the world. If public faith in the ADF is to be restored, together with its international reputation, there must now be an exhaustive process of investigation and prosecution of any war crimes committed in Afghanistan.</p><img src="https://counter.theconversation.com/content/206749/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dean Aszkielowicz has previously received funding from The Army Research Scheme.</span></em></p><p class="fine-print"><em><span>Paul Taucher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The explosive evidence heard in the case also underscores the need for the Army and the Australian public to reckon fully with the conduct of Australian forces in the Afghanistan campaign.Dean Aszkielowicz, Lecturer, Murdoch UniversityPaul Taucher, Lecturer, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.