This article was originally published in the Toronto Star.
By Sarah Teich and David Matas, November 11, 2023
The eventual outcome of the Israeli response to the mass atrocities of Hamas is, if successful, the elimination of the threat from Hamas. If and when that happens, what comes next?
The elimination of the threat of Hamas in Gaza will inevitably present a new paradigm for the world to engage in the region. However, we also need to consider how Hamas will be brought to stand trial for acts of terrorism, war crimes, crimes against humanity and genocide.
There are two groups that Hamas has victimized: Jews and Palestinians.
Genocide, according to the Genocide Convention, is a combination of any one of five acts, one of which is killing members of a national, ethnical, racial or religious group, with the intent to destroy the group in whole or in part. The requirement of intent to destroy the group in part is an intent to destroy a substantial number relative to the total population of the group. The Hamas atrocities in Israel arguably meet that standard.
Hamas also generates propaganda against Israel, condemning the Israeli response to Hamas terrorist attacks without reference to the attacks that precipitated them. Hamas uses this decontextualization to delegitimize and demonize the existence of Israel. This demonization of the country leads in turn to the demonization of the Jewish community worldwide as actual or presumed supporters of this supposedly demon state.
The Jewish community is the victim of the most hate attacks per capita of any racial or religious or ethnic community, including in Canada. Hamas’s propaganda campaigns contribute to this worldwide hate and oppression.
Hamas uses Palestinians as human shields. Hamas hides ammunition in and shoots rockets into Israel from residential buildings, schools and mosques. Hamas attackers disguise themselves as civilians by not wearing uniforms. Hamas indoctrinates vulnerable targets, including children, to become suicide bombers. Hamas thwarts local integration or resettlement of Palestinian refugees. Hamas diverts humanitarian aid intended for Palestinians to the production and purchase of arms and uses the pretence of importing food and medical supplies for Palestinians to smuggle armaments.
The Hamas perpetrators should be brought to justice, but how? The best solution is an international hybrid tribunal, patterned after the hybrid tribunals in Cambodia, East Timor, Lebanon and Sierra Leone. Judges could come both from Israel and other countries.
The International Criminal Court is not a viable option, not only because Israel is not a state party, but also because Palestine is. The problem here is not just that the court, in 2021, accepted Palestine as a state party but that it did so for nakedly political reasons.
The court put aside the legal criteria for statehood, which Palestine does not meet, and instead accepted Palestine as a state party simply because the Palestinian Authority had achieved enough votes in the UN General Assembly to accept Palestine as an observer state.
A court that is prepared, when it comes to Palestine, to make legal determinations based on General Assembly political vote tallies is not a court that can be trusted to accept the rule of law.
A hybrid tribunal established by the UN Security Council is unlikely to be better. The Security Council is effectively hobbled by the veto powers of China and Russia, who see everything through the prism of their own atrocities; anything that smacks of bringing mass murderers to justice hits too close to home.
A hybrid tribunal should be established by Israel and other states committed to the rule of law, outside of UN auspices. It may be too early to establish such a tribunal; but it is not too early to begin negotiations with like-minded states.
Starting these serious discussions about how to hold Hamas to account now will help demonstrate that the purpose of Israeli elimination of the threat from Hamas, and support from the community of liberal democratic nations toward that end, is not revenge but is rather a combination of pursuing the prevention of future atrocities and seeking justice for recent and past wrongs.
It would be more productive if the negotiations toward a hybrid tribunal were not initiated by Israel. Canada, a country with a significant Jewish and Muslim diaspora, a country standing opposed to both Jewish and Palestinian victimization, is an ideal country to initiate discussions with like-minded states about establishing such a tribunal.
David Matas is a Winnipeg lawyer and senior honorary counsel to B’nai Brith Canada. Sarah Teich is a senior fellow at the Macdonald-Laurier Institute, the executive director of Human Rights Action Group, and a legal advisor to Secure Canada.