Extradite Hamas terrorists for foreign prosecution

Among the victims of Hamas’s October 7 attacks on Israel are reportedly nationals of as many as 40 different countries, the United States and United Kingdom, among them. Those kidnapped and taken hostage in Gaza were said to be nationals of about 25 countries, including the United States, France, Germany, and Argentina. In the American legal system with which I am most familiar, and where I had the honor to serve as a federal prosecutor, the fact that Americans were victims of terrorist attacks abroad provides US courts and prosecutors with criminal jurisdiction over the perpetrators.

Israel will, of course, understandably, wish to prosecute on Israeli sovereign soil the most serious and senior perpetrators of the attacks, and so it should. But in doing so, Israel should consider extraditing some of the terrorists for foreign prosecution in select countries whose nationals were victims of the attacks, and where public trials will educate the Western public, through the presentation of ample evidence of the true nature and extent of Hamas’s atrocities.

Trial lawyers know well the powerfully pedagogical function trials can perform. This is particularly true when it comes to the prosecution of international crimes against humanity of the kind Hamas has perpetrated. In a world where mainstream media, and the loudest mouths on college campuses, have been hijacked by the terrorists’ apologists, the quieter unpersuaded majority would benefit from the education that public trials would provide, and the lasting historical record they would create. As Seth Mandel has written, for Commentary, regarding an Eichmann-like trial of Hamas perpetrators in Israel, there is great value in the effort “to place in the public domain an unimpeachable record of events.”

The United States criminal code offers several reliable statutes to prosecute Hamas terrorists for crimes committed against American citizens abroad. For example, under Title 18, United States Code, Section 2332, the crime of perpetrating a terrorist attack against Americans overseas is punishable by life imprisonment, and even death. Significantly, those captured need not personally have blood on their hands. Thus, prosecutors need not prove that particular defendants themselves were the ones who pulled triggers or personally raped, burned alive, or beheaded Jews.

Under long-standing principles of conspiracy liability, and the Pinkerton doctrine, named for the US Supreme Court case of Pinkerton v. United States (1946), members of a conspiracy are liable for the reasonably foreseeable acts of their co-conspirators when those acts are taken in furtherance of the conspiracy. In other words, the mere agreement to commit the prohibited acts, with even modest steps taken to further the conspiracy’s objectives, triggers equivalent liability for all co-conspirators, and therefore equal punishment to those who directly committed the acts. Every terrorist who participated in the attacks of October 7 in any way, at a minimum attempted to commit, conspired to commit, or aided and abetted the commission of the terrorist acts. In the United States, those “secondary” actors will be punished, upon conviction, as if they personally committed the acts themselves.

And that is not all. American federal prosecutors have several other arrows in their quivers. Hamas terrorists could be prosecuted for the commission of genocide (under Section 1091 of the federal criminal code), for war crimes (Section 2441), and for torture (Section 2340A). Prosecuting Hamas terrorists for the crime of genocide, in particular, would offer a powerful and fitting contrast to the phony charge of “genocide” South Africa has leveled against Israel in the International Court of Justice.

There is no lack of evidence for American prosecutors to prevail on a charge of genocide against Hamas terrorists. Indeed, what lawyers call the “elements” required to prove genocide could be easily satisfied given what is already known about the heinous crimes the terrorists proudly documented. Conviction for genocide requires proof that the defendant – while acting “with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such” – engages in any one of the following acts: “(1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group.”

Any one of these acts alone, along with proof of the requisite “specific intent,” would suffice for a conviction. Evidence of all of these acts, conducted with the “specific intent” to murder Jews, is already well known. Recall, as just one emblematic example, the gleeful pride of a Hamas murderer (one “Mahmoud”), who called home to share with Mom and Dad the happy news that he had murdered in cold blood not just one, but ten Jews, and that he had their blood on his hands. (Notably, in the chilling recording available here, Mahmoud described his victims not as “Israelis,” or as “Zionists,” but as “Jews.”)

“Look how many I killed with my own hands! Your son killed Jews!”

Listen to a phone call of a Hamas terrorist calling home, bragging about how many people he massacred.

The whole world needs to hear this. pic.twitter.com/Xv0ykyxvrF

— Israel Defense Forces (@IDF) October 24, 2023

One may nevertheless wonder, even if prosecution abroad is feasible, whether it is also desirable. Several good reasons, it turns out, favor the extradition of at least some Hamas terrorists. First, a prosecutor is highly motivated to present the most compelling evidence of the crime in order to sustain a conviction. Prosecutors are incentivized to establish a strong trial “record” before judges and juries that will withstand any challenge on appeal. That is accomplished through the introduction of the most persuasive admissible physical evidence and witness testimony. This public accounting would have great value at a time when many in the West have unashamedly and unthinkingly embraced Hamas’ narrative.

Second, trials are extremely labor and resource-intensive. Israel’s expenditure of substantial resources is appropriate for the most culpable actors. But literally thousands of middle-level and lower-level participants would remain, including those who – like Mahmoud of the phone call – have blood-soaked hands, even if they were not the Yahya Sinwars or Mohammad Deifs of the attack. Prosecution of lower-tier terrorists, although they are no less dangerous or legally culpable, would be a significant drain on Israel’s prosecutorial resources. Thus, extradition would permit other countries to share in the expense and burden of prosecution. That is entirely appropriate, given the shared responsibility many Western countries bear (in Europe in particular) for funding, supporting, and propping up Hamas for far too long, in word and deed.

Third, as a practical matter, foreign prosecution and incarceration (or death) will reduce or eliminate entirely the possibility of the return of these terrorists to Gaza, or their release in another perversely lopsided prisoner exchange – the sort that resulted in the release of Sinwar himself, notwithstanding his prior conviction by an Israeli court that sentenced him to four life terms. (Remarkably, before Sinwar’s release in 2011, Israeli doctors reportedly removed a tumor from his head in 2008, saving his life. And in another irony, Sinwar’s Israeli dentist during the time of Sinwar’s custody in Israel, Dr. Yuval Bitton, is reportedly the uncle of one of the October 7 hostages, Tamir Adar.) The incapacitating function of the criminal law, in this context, can only be good news for anyone who still holds out hope for a future peace.

Given the interest of foreign countries in prosecuting the murderers of their own citizens on October 7 and Israel’s interest in using its prosecutorial resources wisely while educating the world about the nature of Hamas’s deeds, extradition of certain terrorists to select foreign countries would offer Israel a unique opportunity to realize many benefits and few costs.