Could Other Countries Prosecute Soldiers in Gaza?

Last spring, a video spread across social media. Filmed at night, it shows several soldiers in olive-green army fatigues transporting a group of prisoners. The captured men wear white jumpsuits and blindfolds, and they have their hands tied behind their backs. The person holding the camera begins to narrate, in French, “Did you see those motherfuckers?” Referring to a prisoner whose jumpsuit has fallen to his waist, he says, “Look, he’s pissed himself. . . . I will show you his back. You’ll laugh. They tortured him to make him talk.” In a separate clip, he points the camera at the men, including one with marks on his back, and says, “You were happy on October 7th, you sons of bitches?”

A group of European and Palestinian human-rights organizations allege that the video was filmed by a French-Israeli soldier stationed with the Israel Defense Forces in Gaza. Politicians in France demanded an inquiry, arguing that if this soldier was of French nationality and a potential perpetrator of torture, or had aided and abetted it, he should be tried in French courts for possible war crimes. “I am immediately contacting the Paris public prosecutor,” Thomas Portes, a deputy in the National Assembly, wrote on X. The news cycle quickly moved on, and French authorities never picked up the case. But behind the scenes, a group of lawyers and activists across Europe had already been collaborating to document—and potentially bring prosecutions for—similar incidents.

Thousands of Europeans have joined the I.D.F., many of them since the start of the war between Israel and Hamas. Precise figures are difficult to verify, but it’s estimated that the Israeli Army has more than four thousand soldiers of French nationality, the second-largest contingent of foreign recruits. (The U.S. is first.) French antiterrorism authorities had opened an investigation into the Hamas-led October 7th attacks, in which French citizens were injured and killed, but despite mounting allegations of war crimes being perpetrated by Israel in Gaza there were no inquiries into the possible involvement of French citizens.

Olivia Zemor, who leads the advocacy group EuroPalestine, pointed out that international arrest warrants have been issued for Benjamin Netanyahu, Israel’s Prime Minister, and Yoav Gallant, its former defense minister. “We have thousands of dual nationals in the Israeli Army who may have committed crimes,” and the French government has done nothing, she said. “We consider this extremely serious.”

After the Second World War, the global community created mechanisms to prosecute international crimes—genocide, torture, the use of chemical weapons—outside national courts, which often failed, or were simply unable, to take on such cases. The Nuremberg trials, history’s first international war-crimes tribunal, held some of the Nazi Party’s highest-ranking officials to account. Special courts and tribunals were later created to prosecute atrocities in Rwanda, the former Yugoslavia, Sierra Leone, and Cambodia, among others. These days, there is a growing recognition that such institutions are insufficient. The special courts and tribunals, created by the United Nations, are constrained to specific conflicts and time periods. In 1998, a hundred and twenty countries voted to adopt the Rome Statute, establishing the International Criminal Court, which has a permanent presence. But the I.C.C. has been criticized for mounting slow and shallow responses—it has convicted only eleven defendants in its history, all of whom were African. (Many African politicians and post-colonial scholars argue that the court focusses too much on Africa and neglects equally significant conflicts elsewhere.) And its limited resources have meant that only high-level perpetrators are prosecuted. It is a “drop of justice in a sea of impunity,” Johann Soufi, a French lawyer who specializes in international criminal law, told me.

To make up for the shortcomings of the I.C.C. and the ad-hoc tribunals, lawyers in Europe and elsewhere have increasingly turned to a legal principle known as universal jurisdiction, which empowers national courts to prosecute offenders in a more bottom-up and decentralized way. First used to go after pirates and slave traders, universal jurisdiction allows any court to take on cases involving serious violations of international law, regardless of where those crimes were committed or the nationality of the perpetrator. The principle is rooted in the premise that those who commit crimes of a certain magnitude are hostes humani generis—“enemies of all mankind”—and thus all states should have the authority to hold them accountable. It was enshrined in the Geneva Conventions, in 1949, and was central to Israel’s prosecution, in 1961, of Adolf Eichmann, a senior Nazi official, for his role in the Holocaust. But then, it largely went dormant. Soufi calls its revival “one of the great evolutions of the past decade.” Hundreds of cases—covering conflicts in Syria, the Gambia, Rwanda, Iraq, Liberia, and other countries—have been opened or successfully prosecuted.

In 2023, Trial International, an N.G.O. based in Geneva, documented universal-jurisdiction proceedings in eight countries, including the opening of thirty-six new cases. (The cases are concentrated in Europe, but, according to the Clooney Foundation for Justice, a hundred and forty-eight countries have domestic legislation that allows for universal jurisdiction.) The alleged perpetrators include former state officials, former members of armed rebel and paramilitary groups, and companies and businesspeople. Vony Rambolamanana, a senior legal adviser at Trial International, told me that universal jurisdiction is “one of the most powerful tools” available to fight international crimes and that “we see that it works because we get results.”

Judicial bodies in South America, Africa, and the U.S. have also initiated universal-jurisdiction cases. In 2016, Hissène Habré, the former dictator of Chad, was convicted of crimes against humanity, war crimes, and torture, and was sentenced to life in prison in Senegal, where he had fled after his government was overthrown. Last year, a prosecutor in Argentina sought arrest warrants for officials in Myanmar suspected of carrying out a genocide against Rohingya Muslims. For more than a decade, the U.S.-based Center for Constitutional Rights has filed universal-jurisdiction cases in Europe and Canada related to incidents of torture perpetrated by the American government during the war on terror. Russia’s war in Ukraine has prompted several Eastern European countries to open their first universal-jurisdiction investigations.

In October, Belgium’s federal prosecutor opened a preliminary war-crimes investigation into a Belgian-Israeli national whom news reports identify as a member of a specialized Israeli sniper unit in Gaza. (A similar inquiry was recently opened in South Africa.) The probe seems to draw on a video report by Younis Tirawi, a Palestinian journalist, which focusses on the sniper unit. The report includes an interview with one of the American members of the unit—which allegedly comprises twenty-one people, including French, German, and Italian nationals, too—who says that the unit views many people in combat zones, including those who are unarmed and dressed in civilian clothing, as potential targets. He also says that he shot someone who came to collect a body. (A spokesperson for the I.D.F. said that it “directs its strikes towards military objectives and is fully committed to respecting its legal obligations.”)

Claire Tixeire, a senior legal adviser at the European Center for Constitutional and Human Rights, told me that universal-jurisdiction cases, even when they don’t result in convictions, are crucial for establishing a historical account of atrocities that may otherwise go undocumented. “Because a lot of international crimes happen in very violent places, the witnesses are often living in situations where their lives may be under threat,” she said. “Memory passes. It’s very important to create this legal record—to host, track, judge these witness testimonies, arguments, and evidence.”

Since 2016, Tixeire has represented Syrian victims in French courts in a case against Lafarge, a French cement company with a subsidiary in Syria, for alleged complicity in crimes against humanity. The company is accused of paying millions of dollars in bribes to ISIS and other armed groups. The bribes were to help keep open the company’s Jalabiya cement factory, in northern Syria, including when the area was under ISIS control. Lafarge is the first company in the world to face such a charge; four of its former top executives are also on trial. (A spokesperson for the company has said, “These allegations relate to a legacy issue from a decade ago that Lafarge SA is addressing through the legal process.”)

The case is being prosecuted by an antiterrorism unit operating under Paris’s general prosecutor, known as PNAT, which is currently pursuing more than a hundred and fifty investigations of international crimes in nearly thirty countries. Last year, in March, as the war in Gaza expanded, the French Foreign Ministry announced that the government would not probe the conduct of French-Israeli citizens in the I.D.F. “You know that dual citizenship implies dual loyalty, so, we will not investigate what French-Israeli citizens do regarding their military obligations in Israel,” a spokesperson said. Many criticized the decision as political, an illustration of the fact that universal jurisdiction, like international law, is selectively applied. But charging another country’s soldiers with crimes has a political valence of its own. “If you extend the same principle to any member of the U.S. Armed Forces, they could be subject to prosecution given the stuff we’ve done as a country,” Carmen Cheung Ka-Man, the executive director of the U.S.-based Center for Justice and Accountability, told me.

Olivier Christen, PNAT’s chief prosecutor, confirmed that the unit’s only current case concerning the Israel-Hamas war involves French victims of Hamas’s October 7th attacks. I asked him whether French perpetrators of possible crimes against Palestinians had been identified in Gaza or Lebanon. Christen said, “It is an area of conflict which is analyzed like the other areas of armed conflict. If we have knowledge of facts that can involve French people, we will check the materiality of the facts, and then we will carry out investigations.”

Recently, on a gray, drizzly afternoon, I met Dyab Abou Jahjah, a fifty-three-year-old Belgian Lebanese writer and activist, at a brasserie in central Brussels. Abou Jahjah has been described by the New York Times as Belgium’s Malcolm X, a man “who is frightening many Belgians” for his “Arab pride movement.” He lived under Israeli occupation in southern Lebanon, in the early eighties, where he joined and received military training from the Popular Nasserist Organisation, a leftist group, before emigrating. (He has been accused of antisemitism, homophobia, and being an apologist for terrorism.)

Abou Jahjah watched Israel’s response to the October 7th Hamas attacks unfold on television, and knew immediately “that this would be the beginning of a terrible chapter of revenge.” Marching in demonstrations and appearing on news programs quickly came to feel impotent. He assembled friends, activists, and public figures around dinner tables and cafés to strategize how they could have a more significant impact. By November, 2023, their efforts coalesced into a new organization called the March 30 Movement, which would aim, among other things, to build legal cases against Israeli soldiers in Gaza.

The group has since filed dozens of criminal cases against Europeans who have joined the I.D.F., alleging involvement in crimes related to targeting civilians, destroying property, and participating in humanitarian blockades. No cases have advanced to trial, but some are currently sitting before judicial bodies or with investigators in the Netherlands, Belgium, and France. The group’s volunteer investigative team mines social media and other open-source material to track potential perpetrators, who often openly advertise their involvement in the war—but linking those disclosures to specific battlefield crimes can be very difficult.

This past summer, the March 30 Movement, whose legal arm is called the Hind Rajab Foundation, submitted a case in the Netherlands involving a Dutch-Israeli I.D.F. soldier. Based on open-source evidence and the man’s own social-media content, the group traced him to a brigade in Gaza that had attacked residential areas, religious sites, markets, and schools where civilians were present. The man had also filmed himself burning objects in a partially destroyed house and graffitiing his name in Hebrew on its walls, according to Haroon Raza, a Dutch lawyer working with the group. Raza told me that other cases involve the West Bank, where Europeans have been documented appropriating land.

After collecting evidence on the French-speaking man who filmed the video of the prisoners in white jumpsuits, the March 30 Movement, along with Paris-based lawyers and associations, submitted a complaint to PNAT, accusing the man of torture and “acts of barbarism.” In September, PNAT dismissed it for insufficient evidence. Last month, the case was picked back up and submitted to an investigative judge by a consortium of human-rights groups. The groups identified themselves as civil parties, which, in the French courts, automatically triggers a judicial investigation. (One of the groups, the International Federation for Human Rights, is expected to file at least one additional case in France involving a French-Israeli soldier in the coming months.)

The March 30 Movement has also submitted a dossier of evidence against a thousand soldiers to the I.C.C. “We’re talking about more than eight thousand pieces of photographic, video, and forensic evidence regarding active-duty soldiers in Gaza,” Raza said. “Many of them with dual nationality: French, Dutch, Irish, American, Canadian, Belgian, and South African, many more.” The file lays out accusations of war crimes, crimes against humanity and genocide against high-ranking officers and commanders—who planned and executed military operations in Gaza—and against soldiers whose social media indicates that they were on the front lines. The evidence, Raza explained, either implicates a person directly in a potential criminal act—such as a soldier caught on video shooting a civilian—or identifies them as involved in a more systematic crime. Simultaneously, they’ve submitted the dual-national soldiers’ names to around a dozen embassies in The Hague, the seat of the I.C.C., in the hope that cases will be referred to authorities at the national level.

Eran Shamir-Borer, the former head of the I.D.F.’s international-law department, who is now at the Israel Democracy Institute, told me that advocacy groups have “managed to find a way to use criminal courts and criminal authorities to advance political goals.” He went on, “We’ve seen the attempt to use legal proceedings as a weapon.” He considers cases brought by groups like the March 30 Movement “very weak,” but, he said, they still can “tarnish Israel’s image” and “create terrible damage to individuals and Jewish communities around the world.”

Israel instructs its soldiers to avoid publishing military activities on social media and sometimes provides an assessment of legal risks when they go abroad. Recently, the Times of Israel reported that the I.D.F. has warned soldiers who were travelling in Cyprus, Slovenia, and the Netherlands to return home over fears they would be apprehended after “anti-Israel, pro-Palestinian groups filed complaints against them for alleged war crimes.” Last week, following a complaint submitted to Brazilian authorities by the March 30 Movement, a judge issued an order for police to investigate possible crimes perpetrated by an Israeli soldier there on vacation. (The soldier has since left the country.)

Dual citizens are especially vulnerable, and some are advised to refrain from returning to their other home states. South Africa, for instance, has a law that bans its citizens from fighting in foreign wars without permission, and may criminalize violators upon their return. (A government spokesperson confirmed that South Africa has not granted any citizens permission to join the I.D.F.) “They can’t even visit their home countries now because they fear the potential consequences, and they did nothing,” Shamir-Borer said.

Soufi, the French lawyer, believes that all foreign soldiers serving in Gaza should be subject to investigation. “To starve an entire population, indiscriminate bombing—anyone who has aided and abetted these crimes is technically and legally liable under international law,” he said. “Even if you’re a French soldier, and you’ve been helping to enforce a blockade on the entire civilian population, you’re possibly legally liable for aiding and abetting war crimes or crimes against humanity.”

Abou Jahjah, for his part, acknowledged that the March 30 Movement’s cases are in part motivated by politics. “Everything on this planet is politically motivated in one way or another,” he said. He added that losing faith in the application of international law makes it essential to compel local, democratic systems to act. “If we cannot count on the rule of law within our countries,” he asked, “what separates us from dictatorships?” ♦