International Law Accepts No Excuses for Murder, Hostage-Taking 

Several activist groups, including chapters of the Democratic Socialists of America, have attempted to justify the Hamas murder, torture, and kidnapping of civilians in Israel by invoking a supposed “right to resist.” Yet international law allows no such exception to its prohibition of murder, hostage-taking, and torture.  

Common Article 3 of the Geneva Conventions, which explicitly covers all parties to any armed conflict, provides a list of acts that “are and shall remain prohibited at any time and in any place whatsoever” against civilian and other “[p]ersons taking no active part in the hostilities.” The prohibited acts include “murder of all kinds, mutilation, cruel treatment and torture;” the “taking of hostages;” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Common Article 3 is referred to as such because it appears in each of the four Geneva Conventions of 1949. 

In 2012, the United Nations (UN) granted non-member observer status to Palestine. In 2014, Palestine became a party to the Geneva Conventions. (Israel did so in 1951.) Since Common Article 3 covers non-international armed conflicts and non-state parties, it applies to Hamas, which has ruled Gaza since 2007.  

The UN has also specifically repudiated the notion that the existence of an occupation creates an exception to these rules. A special UN High-Level Panel convened in 2004 by then Secretary General Kofi Annan specifically concluded that “there is nothing in the fact of occupation that justifies the targeting and killing of civilians.” 

The intentional killing of civilians by Hamas terrorists is clearly a reflection of Hamas policy. Documents recovered from the bodies of Hamas operatives killed on October 7 contain specific instructions for the massacre of civilians and the taking of others as hostages. 

Hamas also literally calls for such genocidal murders in its 1988 Covenant. Per Article 7, “The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him.” 

In light of Hamas policy, both the specific individuals who committed atrocities last week and complicit members of the Hamas chain of command must be held accountable for these vicious and inexcusable war crimes. The United States could even pursue accountability in its own courts, since under the War Crimes Act, a U.S. law, the federal government can prosecute any person who commits, or conspires to commit, a specified Common Article 3 war crime against a U.S. national or permanent resident, regardless of where the offense occurred. The penalty is up to life in prison (or the death penalty if death results to the victim).  

A U.S. court could be a fitting venue because at least 22 Americans died in the October 7 attack. In addition, the United States, unlike Israel, has a death penalty that is applicable in such cases.  

Orde F. Kittrie is a senior fellow at the Foundation for Defense of Democracies and a law professor at Arizona State University. He previously served for over a decade in legal and policy positions at the U.S. State Department. Follow Orde on X @ordefk. Natalie Ecanow is a research analyst at FDD. Follow Natalie on X @NatalieEcanow. FDD is a Washington, DC-based nonpartisan research institute focused on national security and foreign policy. Follow FDD on X @FDD.