The Criminal Charges Against Hamas

The unsealing of a criminal complaint against Hamas docketed by the Department of Justice at New York is the latest development in the war in Gaza. The seven counts name the group’s leader, Yahya Sinwar, as well as his camarilla. The DOJ seeks to bring them to book for “planning, supporting, and perpetrating the terrorist atrocities that Hamas committed.” It’s a brave move, and our instinct is to say welcome to the fight.Yet we don’t mind saying that we nurse a note of caution. The first paragraph we wrote after 9/11 was to warn of treating the attacks in what came to be known as the global war on terror as a criminal matter and not as a war, which is what Sinwar and his Iranian backers are prosecuting. As the Justice Department presses its case it will be important to avoid letting the niceties of American criminal law get in the way of the war against Hamas and other enemies.Once a defendant is haled into criminal court in America, after all, he becomes swaddled in rights that do not obtain on the battlefield. The logic would be for a declaration of war rather than an arrest warrant. The decades-long ordeal at Guantanamo Bay has made a mockery of the effort to use criminal law to hold accountable the masterminds of September 11. Sinwar himself spent years in an Israeli prison. Nobody is eager to repeat that.The big gains in this conflict have been delivered by an airstrike rather than in a Redweld. One of the defendants, the ghostly commander known as Mohammed Deif, is now presumed to be an actual ghost, having been dispatched to his reward by an Israeli drone. The same goes for another defendant, Marwan Issa, who was reportedly convening with Deif when the two were struck by the arm of the Jewish state. Ismail Haniyeh was struck dead at Tehran.There is no gainsaying that Hamas’s crimes were committed not only against Israel, but against America, and many other countries. The murder this week of an American-Israeli hostage, Hersh Goldberg-Polin, along with five others, underscores that Washington as well as Jerusalem ought to be committed to the eradication of Hamas. Attorney General Garland insists that to hold Hamas to account “these actions will not be our last.”The problem is that too often America’s actions have frustrated that war effort when they have not thwarted it outright. Goldberg-Polin and his fellow hostages were found in the maze below Rafah, the city which both President Biden and Vice President Harris warned Israel not to invade. Months were forfeited at the behest of the White House, lost days when the war could have been prosecuted and gains notched against Hamas. Even now Mr. Biden and Ms. Harris are leaning on Prime Minister Netanyahu to bow to the demand for a ceasefire. Outrageously, Mr. Biden is blaming the Israeli leader for the continued fighting — even as Hamas shows no interest in relenting. Handing up charges in absentia against the terrorist warlords, a well-trod but ineffectual path, will do little to deter them from their destructive aims. They aren’t losing sleep over motions in limine. What is required is victory on the battlefield, a point we have long maintained in respect of efforts to wage lawfare rather than warfare against enemies. Let Israel’s foes carry on about the International Court of Justice and the International Criminal Court, tribunals that have been captured by the worst actors on the world stage. Even tools like the Flatow Amendment, which allows victims some measure of justice in court, are no substitute for a military victory.

The Criminal Charges Against Hamas

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