U.S. Attorney General Merrick Garland speaks at a press conference on Dec. 6, 2023, about DOJ’s indictment of four Russian military personnel for war crimes committed against a U.S. national living in Ukraine, the first of such charges ever to be brought under the U.S. war crimes statute.
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U.S. Attorney General Merrick Garland speaks at a press conference on Dec. 6, 2023, about DOJ’s indictment of four Russian military personnel for war crimes committed against a U.S. national living in Ukraine, the first of such charges ever to be brought under the U.S. war crimes statute.
Samuel Corum/Getty Images
After the Kremlin’s full-scale invasion of Ukraine in February 2022, Attorney General Merrick Garland and the U.S. Justice Department moved quickly — and publicly — to hold Russia to account for possible war crimes.
In speeches and news conferences, including on a surprise visit to Ukraine in June 2022, Garland condemned Russia’s military onslaught and the “war crimes that the entire world has seen.” The attorney general has repeatedly pledged that the Justice Department would do all it could to hold the perpetrators accountable.
It wasn’t just talk. Garland also quickly established a special team to focus on possible Russian atrocities, an effort that led to charges late last year against four Russian soldiers for alleged war crimes in Ukraine. The U.S. is also assisting Ukrainian authorities with their own investigations.
The aggressive public response appeared to signal the department’s newfound interest in and commitment to prosecuting war crimes.
“I think Ukraine has been a game changer because the United States sees its interests as allied with the Ukrainians,” said Leila Sadat, a professor of international criminal law at Washington University in St. Louis and a former special adviser to the International Criminal Court prosecutor. “What’s changed with Ukraine is we now have some political will and we have some staffing in the Justice Department to actually be able to do these cases.”
It’s unclear, however, whether the department’s political will extends to the other major war raging right now — the one between Israel and Hamas.
Nearly six months into that conflict, Garland has said just 29 words in public about possible war crimes. Those remarks came at a news conference in December announcing the case against the Russians when he was asked by a Fox News reporter, “where are you on war crimes relating to Hamas?”
Garland replied: “Hamas murdered more than 30 Americans and kidnapped more during their terrorist attack on Oct. 7. We are investigating those heinous crimes, and we will hold those people accountable.”
Garland made no mention of examining Israel’s actions in the conflict.
NPR sent the Justice Department questions for this story about its approach to possible war crimes in the Israel-Hamas conflict. The department declined to comment.
Experts say that the U.S. has clear ground to pursue a case against Hamas
Under the 1996 U.S. War Crimes Act, the Justice Department has jurisdiction to bring war crimes charges when either the victim or the perpetrator is a U.S. national or permanent resident.
In response to the Ukraine war, Congress passed a new law last year that expanded the department’s powers, giving prosecutors the ability to bring charges if a suspected war criminal is on U.S. soil, regardless of the individual’s nationality.
Garland welcomed the law’s passage.
“In the United States of America, there must be no hiding place for war criminals and no safe haven for those who commit such atrocities,” he said in a statement at the time. “This bill will help the Justice Department fulfill that important mandate.”
With those authorities in hand, the department has clear grounds to investigate Hamas’ deadly assault on Israel, legal experts say.
“There’s definitely a basis for an investigation of war crimes by Hamas militants,” said David Scheffer, a former U.S. ambassador for war crimes issues. “The destruction of civilian property and the taking of hostages and bringing them back to Gaza — all of that falls within a war crimes context.”
There are also allegations of sexual violence by Palestinian militants on Oct. 7, as well as the indiscriminate firing of rockets into Israel during the conflict, both of which could also be war crimes.
Hamas’ surprise Oct. 7 attack on southern Israel killed some 1,200 people, the majority of them civilians. The militants also took more than 200 hostages, some 130 of whom are still in captivity.
The U.S. has designated Hamas a terrorist organization, and American prosecutors could pursue terrorism charges against the group’s fighters instead of war crimes, if that would make a stronger case in U.S. court.
Either way, experts say that pursuing a case against Hamas would be straightforward legally and politically.
What about a war crimes case against Israel?
There are grounds for the Justice Department to scrutinize Israel’s actions in the war as well, legal experts say, although the path forward would likely be more complicated.
“I think that possibility exists that the Israeli Defense Forces, in particular situations, could be seen as committing war crimes,” Scheffer said. “It depends, of course, on the evidence.”
Israel says its actions in Gaza have been in accordance with the laws of war.
But some 32,000 Palestinians have been killed in Gaza and more than 75,000 have been wounded, according to Gaza’s Health Ministry.
Israel has the right to self-defense and to use military force against Hamas, Scheffer said, but he added that the scale of human suffering and the enormity of the destruction in Gaza demands examination of Israel’s actions.
“The use of firepower by the Israeli Defense Forces has its legitimacy,” Scheffer said. “But the question is precisely how is that being done? What is the precise impact on civilians? What is the decision-making by the Israeli Defense Forces and how it uses its military force? All of that is up for scrutiny.”
The top UN rights officials and international rights groups say several Israeli actions could amount to war crimes under international law: the limits Israel has placed on humanitarian aid, potentially using starvation as a weapon of war; Israel’s forcible displacement of civilians; its extensive destruction of property; and its alleged indiscriminate attacks on civilians and civilian infrastructure.
UN experts also have expressed alarm over reports of Palestinian women being subjected to extrajudicial killings, sexual assault and other inhumane treatment by Israeli forces. Israel denies the allegations.
Even under the narrower lens of U.S. war crimes law, experts say there is a basis for the Justice Department to investigate Israel’s actions.
“Should there be political will to prosecute, the Justice Department would have the authority to do a wide range of investigations and prosecutions,” said Sadat, the former special adviser on crimes against humanity to the International Criminal Court prosecutor.
Any U.S. investigation, however, would likely face challenges, including basic access to evidence.
“You would have no access right now to Gaza unless you got access through Israeli cooperation,” Sadat said. “And if you were investigating Israelis, I don’t think they would cooperate very readily.”
DOJ could look for a case involving a U.S. citizen
There are also other considerations — both political and geopolitical — that could stand in the way of any war crimes prosecution, particularly one that would involve a close ally like Israel.
The U.S. war crimes statute requires the attorney general or another senior Justice Department official to approve a war crimes prosecution and certify that it is “in the public interest and necessary to secure substantial justice.”
In some instances, the Pentagon and State Department are also allowed to weigh in on the potential benefits or adverse consequences for Americans, U.S. officials or troops of pursuing such a prosecution.
The U.S. has only brought one case to date under the U.S. war crimes statute –the prosecution in December against the four Russian soldiers for allegedly abducting and torturing and American civilians in southern Ukraine.
And it’s that hook — the involvement of a U.S. citizen — that experts say would simplify what could be a politically fraught decision to pursue a case involving a close U.S. ally like Israel.
“I think it would be politically and pragmatically easier if the victims were of American citizenship,” Scheffer said. “That’s a more manageable investigation and prosecution for the Justice Department.”
That’s also the case if the suspected perpetrator is an American citizen.
“Nothing is preventing the Justice Department from looking at this issue, whether it be perpetrators of Israeli citizenship or of Palestinian identity,” Scheffer said.
There are thousands of U.S. citizens caught up in the Israel-Hamas conflict. U.S. officials have said some 600 American citizens were trapped in Gaza when the conflict began, although many have since left. The Israeli military, meanwhile, says an estimated 23,380 Americans are currently serving in its ranks.
There are also Americans in the Gaza Strip providing humanitarian aid.
This week, a dual U.S.-Canadian citizen, Jacob Flickinger, was killed by an Israeli airstrike on a convoy of vehicles from the humanitarian group World Central Kitchen. Aid workers from the UK, Australia, Poland and Palestine were also killed. At least one of the vehicles had the organization’s logo on the roof.
Israel says the strike was a “grave mistake.”
Carmen Cheung, the executive director of the Center for Justice and Accountability, said war crimes prosecutions require resources and political will. And she acknowledged that investigating and prosecuting Israeli forces would be tricky, but — if the evidence supports it — taking that step would deliver a powerful message.
“If the U.S. could do that, it would send a signal that its War Crimes Act is meant to apply to everyone,” she said. “And it really does what it says on the box, which is provide justice for victims of war crimes. Everywhere.”