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Human rights expert says Hamas and Israel both committed possible war crimes

MICHEL MARTIN, HOST:

Hamas is the group that was behind this weekend's attacks in southern Israel. We thought it would be helpful to learn more about the group, so we called Mohammed Abu-Nimer for that. He is a professor of international conflict resolution at American University, and he is an authority on the group. And he reminded us that Hamas had a decadeslong history before its takeover of Gaza.

MOHAMMED ABU-NIMER: Hamas is both political party but also a military wing that has arms, and they engaged in the fight against the Israeli occupation since 1987.

LEILA FADEL, HOST:

Hamas is one of two major Palestinian political factions. The other is Fatah, a political party that dominates the Palestinian Authority and controls the occupied West Bank, which is about 40 miles away from Gaza's northern border. Fatah and Hamas have been fighting each other for political control since Hamas won a majority in the 2006 Palestinian parliamentary elections.

ABU-NIMER: What you have in Gaza is just another system - military, political, economic. It has all the infrastructure to be a political authority that's running the lives of 2 1/2 million people since 2007. The Palestinian Authority in the West Bank in Ramallah has failed to compete with Hamas in Gaza.

MARTIN: Israel and Hamas have battled before. Each time the fighting ended inconclusively. Abu-Nimer says the lack of progress toward peace has fueled Palestinian despair.

ABU-NIMER: For many Palestinians, they don't see any value, any hope in the negotiation between the Israeli and the Palestinian. This is the longest negotiation in the history of any conflict. They've been negotiating over 30 years, yet the conditions on the ground - every year they become worse and worse.

MARTIN: Abu-Nimer says Israel's declaration of a, quote-unquote, "complete siege" on one of the most densely populated places on Earth amounts to what he called collective punishment that dehumanizes civilians.

ABU-NIMER: Gaza is the largest open prison in the world with no mobility outside except for the few permissions that Israel give to the workers. Now its prisoners will be living in the darkness.

FADEL: He has taught students about peacemaking for more than 35 years, and Abu-Nimer warns fighting won't lead to a resolution.

ABU-NIMER: We've been struggling with the same deep-rooted, intractable conflict for over a century. Militarization, weaponization, force and violence will not persuade a Palestinian to give up their right to live dignified and peaceful life. It will not also persuade Israelis and grant them security.

MARTIN: Over their decades of conflict, Hamas and Israel have traded accusations of war crimes, and these past few days are no exception. And war crimes is a concept rooted in the Geneva Conventions of 1949, rules intended to prevent a repeat of the horrors of World War II. But what does it actually mean? What actions by either party could constitute war crimes? I asked Fernando Travesi about this. He is a human rights lawyer who's worked in conflict zones around the world as director of the International Center for Transitional Justice.

FERNANDO TRAVESI: If you were a party to a conflict, you have to follow the principle of distinction, meaning that you have to distinguish between civilians and combatants, between civilian objects and military targets. You have to follow the principle of proportionality, meaning that you can exercise violence, but you have to plan in order to minimize the impact on civilian population. And you have to follow the principle of military necessity. You commit a war crime when you violate some very explicit prohibitions that are in the international humanitarian law.

MARTIN: Has Hamas committed war crimes?

TRAVESI: Yes, I think it's clear, and we've seen that on our screens. The premeditated killing of civilians who are participating in a music festival - that's a war crime. Hostage-taking is a war crime. Targeting civilians or killing - extrajudicial killings - that's a war crime.

MARTIN: Hamas function as a government. Does it matter for purposes of this whether they are or are not?

TRAVESI: No, it doesn't matter what is the political consideration or is - so Hamas and Israel, both parties are obliged by international humanitarian law, and they both can commit war crimes if they don't follow the basic principle and rules of international humanitarian law.

MARTIN: So now let's speak about Israel's response. Do you think that Israel is committing war crimes?

TRAVESI: Israel faces a very difficult challenge, which is to distinguish combatants from civilians, which is especially difficult in a situation like in Gaza, so small, so dense and populated. A military siege should allowed at any moment that basic necessities like food or water or medical care is accessible to civilian population. Otherwise it can be a war crime. Indiscriminate bombardments are a war crime if you don't take all necessary precautions to distinguish civilian and military targets. When you attack medical facilities, that's another war crime, no matter if there are soldiers there. So the standards are equal for both sides, and they both have to abide by them.

MARTIN: We hear occasionally some of these cases resolve years after the conflicts have ended - Liberia and Sierra Leone and Serbia. Is there really a path to accountability here for what we have seen?

TRAVESI: You can find some level of international criminal accountability at some point. With the International Criminal Court, they have an open investigation for a number of years. You have other criminal accountability avenues. You have the International Court of Justice. So you have other levels of accountability at the Human Rights Council and the U.N. And we can criticize the impact they may have. You can have other accountability processes focusing on the victims and their needs and their experiences more than in the perpetrators. In this particular case, I think it's obvious it will take years of collective effort to bring a sense of justice and to bring justice to the victims. It will take generations. It's a very long path, but it's the only way to go towards long and sustainable peace in the future.

MARTIN: What is it that you think we should be thinking about when we think about the victims?

TRAVESI: We need to find a way to work with moderate sectors of both societies pushing for mutual recognition of the crimes just to avoid binary analysis and to acknowledge the suffering of all the victims and starting to find ways victims can be repaid. And of course, we need to talk about the root causes of conflict and grievances. But that has to be not only with the perpetrators' focus, but also with the victims' needs an impact on their lives.

MARTIN: Have you seen that?

TRAVESI: Yes. Colombia is in the way of solving a 50-year-old conflict that has been dividing the country completely. You've mentioned Sierra Leone. You've mentioned Liberia. But, you know, you cannot work at the political level if there is not a minimum of political will, and there isn't here.

MARTIN: That's human rights lawyer Fernando Travesi. He's executive director of the International Center for Transitional Justice. Mr. Travesi, thank you so much for speaking with us.

TRAVESI: Thank you very much for having me. Thank you.

MARTIN: Leila, let's hear more from you about just what's the atmosphere like in Jerusalem right now?

FADEL: As I was listening to your conversation, you know, as I was listening to that, we're getting messages about how in Gaza the fuel is actually running out. In 10 to 12 hours, they probably will have no electricity with this siege that has cut off fuel, food, water and electricity. So these ideas of war crimes - they're very real here on both sides. And the idea that there are human beings that are suffering on both sides, that's also very, very real here.

MARTIN: And as you were speaking earlier about the fact that the images of the atrocities that have...

FADEL: The atrocities, yes.

MARTIN: ...People experienced there - it's just very real and raw. How are you seeing this there?

FADEL: Yeah.

MARTIN: Are you seeing this on people's faces? Is there sort of a somber...

FADEL: Yes.

MARTIN: ...Feeling there right now?

FADEL: There is a sadness everywhere, Michel - sadness, but also a lot of anger and a danger of demonization fully of both sides because they're angry about losing their loved ones. And so here, you know, you're seeing text groups looking for loved ones, missing, people providing DNA to identify bodies. I mean, there have been massacres here.

MARTIN: That's Leila Fadel in Jerusalem. She and her team are there throughout the week. We'll hear more from you. And Leila, thank you so much for your reporting and being there on the ground. And thanks to you and your team. And you'll stay with us throughout the hour.

FADEL: Of course.

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