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Mutual crimes committed against Humanity

Ahmet Insel*

Hamas’ attack on the morning of October 7th in Israel, targeting military and civilian targets, is the first action carried out by “foreign armed forces” entering Israeli territory since 1948. The definition of “foreign armed forces” points to an objective situation independent of the debate over whether Hamas is considered a terrorist organization. In 1967, the armed forces of Arab countries were unable to enter the recognized boundaries of Israel by the UN, and the war resulted in the occupation of Syrian, Jordanian, and Egyptian territories by the Israeli army. After the Six-Day War, the territories occupied by Israel were more than two and a half times the size of its internationally recognized boundaries. The 1973 war took place in these occupied territories, specifically in the Golan Heights and the Sinai Peninsula. While Israel withdrew from the Sinai Peninsula and the Gaza Strip, the West Bank, and the Golan Heights were still considered occupied territories by international law, despite Israel’s reoccupation of them, followed by its withdrawal in 2005. Therefore, the attack initiated by Hamas on October 7, 2023, needs to be evaluated within the context of the ongoing de facto state of war. This de facto state of war allows the actions of both parties, if they exist, to be judged within the categories of war crimes and crimes against humanity.

Hamas’ armed forces, mainly the Izz ad-Din al-Qassam Brigades, were able to enter Israeli territory from the land for the first time, occupying some military positions briefly and killing around 1,400 people, including 300 soldiers. Among the civilians killed were babies, women, the elderly, and migrant workers. Additionally, Hamas took around 200 civilians, including babies, children, and the elderly, as hostages. Israeli sources report that approximately 1,500 Hamas militants who carried out this attack were killed.

In this de facto state of war, the deliberate killings of civilians by Hamas’ armed militants as they enter homes pre-planned is unquestionably a war crime. The fact that the individuals who committed these crimes have died does not absolve those who ordered and directed them from being accomplices.

In the days following October 7, the claim that the actions organized and directed by Hamas are terrorist acts, along with the reminder that many Western countries already classify Hamas as a terrorist organization, were quickly put forward not only by Israel but also by many Western governments. Then, the Israeli army’s bombing of civilian targets in Gaza, killing thousands and forcing nearly a million people to flee to the south of Gaza, imposing a severe blockade that violates the right to life of over two million people, was exposed as state terrorism by Palestinian organizations and supporters of the Palestinian cause.

In this significant humanitarian tragedy where terrorism acts, charges of terrorist organizations, and state terrorism fly back and forth, it is necessary to turn to the repertoire of actions clearly defined by international law, not terrorism-like vague concepts. The terms in this repertoire are attack crimes, war crimes, crimes against humanity, and genocide, not terrorism, terrorism, and terrorist organizations. Since October 7, attacks targeting civilians, bombings, and massacres carried out by Hamas and some other Palestinian organizations on one side and by the Israeli Defense Forces on the other side, are unequivocally war crimes in which civilians are targeted. The killing and taking of hostages of hundreds of civilians in kibbutzim, the deaths of thousands of civilians under bombardment in Gaza, the bombing of places like schools, hospitals, and places of worship, the forced displacement of nearly a million people, and the planned and large-scale commission of all these crimes make many of them eligible to be considered crimes against humanity.

On the other hand, it is worth mentioning that terrorism and terrorism crimes included in the national criminal law of some countries (such as the Anti-Terror Law in Turkey) have no place in international law. Terrorism is a highly variable concept that is widely used for political purposes, and its definition and scope are highly variable. For example, in authoritarian regimes, including Turkey today, opponents of the ruling regime who have not engaged in or supported any acts of violence can be stigmatized as terrorists and subjected to heavy penalties. The fight against terrorism is used as one of the main reasons for restricting fundamental rights and freedoms in democratic countries with the rule of law. Therefore, although Hamas’ attack on October 7 aims to create a climate of terror in Israeli society, it carries the characteristics of a terrorist act, the massacres – the deliberate killing of civilians – are fundamentally war crimes because they are part of an ongoing war. Such a designation is necessary for these crimes to be considered within the scope of international law. If it is proven that these are also a general and systematic attack against a civilian population, they can also be considered crimes against humanity.

The same applies to the counterattack carried out by Israel in Gaza, which has led to the large-scale deaths of civilians. Moreover, it is possible to describe the destruction of a large part of a civilian population through the method of collective punishment, deliberately bombing civilian targets, and collectively displacing a particular group from where they live as more than crimes against humanity. Since October 7, not only in Gaza but also in the West Bank, albeit to a limited extent, civilians are being killed by the Israeli Defense Forces and settler militias under the protection of the racist Israeli Interior Minister. The fact that the Srebrenica massacre was considered genocide by international law sets an important precedent for all these massacres today.

Starting with the expulsion of some Palestinians from their homeland in 1948 and continuing as an extension of Israel’s annexation policy since 1973, the conflict in this area has now reached a stage where the conflicting parties see each other as inhuman creatures. The result of this is that the possibility of achieving a two-state solution or a two-region federation within the same state is much more challenging today than it was yesterday. Furthermore, the presence of two million Palestinians living in Israel and seven hundred thousand Israelis living on occupied territory in the West Bank makes it difficult to achieve both solutions without significant waves of migration and displacement. Radical Islamic-nationalist organizations like Hamas, which have adopted the elimination of Israel as their main goal, may be the only issue on which radical nationalist-religious movements that define themselves as basic reasons for the existence of Israel, owning the lands of Greater Israel in the Torah, may agree: both sides reject both solutions. In an environment where these two identity-based fanaticisms have established their dominance in the political arena, peace is much more difficult to design when feelings of hatred, revenge, fear, and obsessive passions largely captivate public imagination on both sides. However, it is essential despite everything.

If one cannot predict the direction in which this conflict will progress, the first step that the international community must take to establish a minimum peace perspective is to establish a ceasefire. However, the fact that the ceasefire call submitted to the UN Security Council was vetoed by the United States on the grounds that the “right to attack for the sake of Israel’s security” was not stated shows that the United States is willing to turn a blind eye to the heavy humanitarian cost imposed on the Palestinian people by Israel in order to destroy Hamas. This was confirmed as U.S. President Biden sought “unprecedented military aid to Israel” from Congress, while describing this support as “a smart investment that will benefit America’s security for decades.”

The “defensive wall” built around Israel with the three countries with predominantly authoritarian regimes (Turkey, Russia, and the United Arab Emirates), together with the decision to purchase military drones from China, is regarded as an “insurance policy” by Israel. This regional alliance aimed at ending the democratic process in the Middle East has been welcomed by the U.S. government. The fact that Israel is increasingly losing democratic attributes due to its internal policies and turning into a state protecting its interests by force creates a sense of unease and disappointment, especially among Jews who have been proud of Israel’s democratic identity. This situation also affects Jewish opposition movements in the world and in Israel. In a statement signed by some Jews, it is stated that “if we do not agree to genocide and apartheid, the name of this struggle must be peace and justice.”

It is clear that the wave of violence that hit Israel and Palestine has the potential to ignite an even more comprehensive and more tragic regional conflict, as it may affect the balance between Turkey, the United Arab Emirates, and Israel, which is regarded as an “insurance policy.” This is why peace initiatives are important. We must also remind those who make various proposals to resolve the conflict that the settlements built on the West Bank continue to be one of the greatest obstacles to peace.

The two-state solution that has been discussed for many years is increasingly disappearing due to the growing number of settlements on the West Bank and the fact that the current Israeli government includes elements that are openly against the possibility of an independent Palestinian state. The coexistence of two different ethnic and religious communities in the same geographical area is only possible within the framework of a solution that does not discriminate against any community, where the rights and lives of each community are equally protected, and that prevents the tension of one against the other from turning into a spiral of violence. In this respect, it is necessary to consider the possibility of creating a common political structure that includes all communities, rather than trying to produce new formulas based on the unrealistic aim of “making the Palestinian people happy.”

The most effective way to prevent the possibility of two ethnic and religious communities coexisting in a geographical area from becoming a threat to their common neighbors is to aim to prevent both communities from protecting their interests by force. And for this, the most vital thing is to eliminate the “strategic depth” created by other countries on this territory, or at least to reduce it to a minimum. To ensure this, it is also necessary to remove the arms race from the agenda of the Middle East. This can only be achieved by eliminating all kinds of weapons of mass destruction from the region, by aiming at a Middle East that is free from the external strategic interests of countries and free from ethnic, religious, and sectarian conflicts. At a time when the arms race is growing in the region, this aim will be achieved through strong diplomacy, the rule of law, and negotiations, rather than through the arming of one of the communities or their close neighbors.

The price paid by civilians is too high in a world where these issues should be addressed, and where environmental destruction, pandemics, and economic problems are becoming increasingly significant. The moral responsibility to protect people on both sides falls on the shoulders of international organizations and humanitarian movements, where the common values of humanity are appreciated.

Meanwhile, let’s not forget that ordinary people are on both sides of the conflict, who have the most right to peace, tranquility, and a future without conflict and suffering. With a little goodwill and the determination to maintain the peace of the majority of the people, a life that begins with peace is possible again, despite everything. However, the important thing is to have this determination and transform it into a policy.

*Ahmet İnsel (b. 1955) is a Turkish economist, editor, journalist and political scientist. Professor at the University of Paris 1, he regularly appears on the Turkish and foreign media, especially French, to talk about the political situation in his country.

The article was originally published in Birikim Magazine and has been translated from Turkish.

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