Our research suggests that a sniper from Munich and a sniper from Illinois may have killed unarmed Palestinian men in the Gaza Strip – presumably civilians. Is there any scenario in which such an action could be legally justified?

Tom Dannenbaum: Having reviewed the footage, the videos do not appear to show that the individuals concerned were armed or otherwise participating directly in hostilities. Targeting individuals who are not participating directly in hostilities or serving in a combat function within an organized armed group would be a violation of international humanitarian law. In this case, the available evidence points to a war crime.

The Israeli military has repeatedly issued evacuation orders for parts of the Gaza Strip, including the area where the men were apparently shot. The Israeli army seems to no longer consider people who disobey these orders or remain in the areas to be civilians, but rather combatants. Is such action legally tenable?

Tom Dannenbaum: No, such a practice would violate international law. The legal requirement to issue advance warnings and the legal permission to issue evacuation orders in limited circumstances are provided to protect the civilian population – not to authorize shooting at them, if they remain behind. Those who stay are still civilians and retain all of the legal protections associated with that status. International humanitarian law requires that only legitimate military targets may be attacked – and only in a proportionate manner. Warnings do not release anyone from this obligation. If civilians are still present in an area, which is regularly the case, their protection must continue to be guaranteed. Anyone who then indiscriminately attacks people in the remaining population is directing attacks against civilians and thus committing war crimes.

One of the snipers – the man from Illinois – claimed in an interview that the men who were killed had crossed an invisible line and had therefore become legitimate targets. What do you think of this argument?

Tom Dannenbaum: It is simply wrong. Civilians may only be attacked if they are directly participating in hostilities, for example, if they take up arms. Merely crossing an imaginary line does not change a person's legal status, nor does it constitute participation in hostilities.

One of the men who was shot apparently tried to recover a body. Purely hypothetically, would it be different if the dead man had been a known Hamas commander?

Tom Dannenbaum: No. Attempting to recover a body does not constitute direct participation in hostilities. The recovery of dead bodies is protected under international law. Even if the deceased had been a combatant, for which there appears to be no publicly available evidence in this case, that does not make anyone who wants to recover the body a legitimate target.

The soldier speculated in an interview that the man who was shot might have been seeking to recover important documents from the pockets of the person who was killed…

Tom Dannenbaum: This appears to be a speculative factual claim, both in terms of whether the killed person had documents and whether the other individual was seeking to retrieve them. Even if it were true, absent specific information about the direct significance of the documents to military operations, collecting documents would not itself entail participating directly in hostilities. If such an argument were accepted, militaries could justify killing just about any civilian based purely on speculation regarding what they might be doing and how that might be related to military operations. From an international law perspective, that's indefensible. Under international humanitarian law, when there is doubt as to a person’s status, they must be considered to be a civilian.

In recent months, there have been numerous allegations against the Israeli military: hospitals and media offices are said to have been deliberately targeted, as well as aid convoys and entire villages deliberately destroyed. The military regularly refers to internal investigations, but rarely provides details of which cases are being examined. In the case of the two snipers, the military refuses to provide any information. Could courts outside Israel, such as the International Criminal Court, take up the case?

Tom Dannenbaum: The International Criminal Court has jurisdiction over war crimes occurring in Gaza due to Palestine’s accession in 2015. That said, it is a court of last resort. Therefore, if its Prosecutor were to pursue such a case, the Court would examine whether there is or was a "genuine" investigation in a country with jurisdiction – that is, an investigation that is independent, serious, and focused on the same person and same criminal conduct as that alleged by the Prosecutor. If this is not the case, the ICC can take action. For example, the ICC issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant because there was no Israeli criminal investigation into allegations that those individuals were responsible for war crimes and crimes against humanity relating to starving the civilian population in Gaza.

Germany has made a name for itself in applying the principle of universal jurisdiction, for example in trials against Syrian torturers or African warlords. However, it has shown remarkable restraint when it comes to alleged Israeli war crimes. Now one of the snipers who allegedly shot civilians is registered in Munich. Do German prosecutors have an obligation to act here?

Tom Dannenbaum: Yes, absolutely. If a suspect is on German territory or is a German citizen, Germany's authorities are obliged under the Geneva Conventions and Additional Protocol I to initiate investigations. More broadly, they are required to cooperate with other states engaged in war crimes investigations, including in this case.

Criminal lawsuits have been filed in Europe against soldiers who served with the Israeli military. Are such criminal prosecutions possible in the US and what would that process look like?

Tom Dannenbaum: It is possible for soldiers who served in the Israeli military to be prosecuted in the United States for war crimes. However, there are some notable constraints on the US process.

First, for war crimes occurring outside the US, one of two things needs to be true: either the alleged offender must be present in the US, or the perpetrator or victim must have been a US national, US permanent resident, or member of the US Armed Forces. This is narrower than some European states’ universal jurisdiction doctrines, such as Germany’s.

Second, the list of war crimes codified in US law is significantly more limited than that of many European states. This is due to the US legislation’s focus on grave breaches of the four Geneva Conventions and a very short additional list of crimes (including certain serious violations of Common Article 3). European states, however, are also party to Additional Protocol I of 1977, which includes a longer list of grave breaches. Most of the crimes at issue in our conversation are either war crimes under customary international law (including as serious violations of Common Article 3) or grave breaches of the Geneva Conventions.

Finally, under domestic US law, war crimes prosecutions may only go ahead with the certification of the Attorney General (or certain specified subordinates) that a prosecution by the United States is in the public interest and necessary to secure substantial justice. If US jurisdiction depends on the alleged offender’s presence in the US (rather than the perpetrator’s or victim’s nationality, residency, or US armed forces membership), the Attorney General or Deputy Attorney General must also consider whether removal for prosecution elsewhere is possible and “potential adverse consequences for nationals, service members, or employees of the United States.” These are significant limitations, particularly under current political conditions.

How does the Justice for Victims of War Crimes Act, signed in Jan 2023, affect US jurisdiction to prosecute war crimes?

Tom Dannenbaum: It has been possible since the passage of the War Crimes Act in 1996 for US courts to hear cases involving alleged war crimes perpetrated abroad. However, prior to the Justice for Victims of War Crimes Act in 2023, this was possible only when the perpetrator or the victim was either a US national or a member of the US Armed Forces.

The Justice for Victims of War Crimes Act amended that jurisdictional constraint. Today, US courts can also hear extraterritorial war crimes cases when the alleged offender is present in the United States.

This is an alternative to jurisdiction based on the crime being perpetrated by or against a US national, US permanent resident, or member of the US Armed Forces. Both of those are alternatives to the most obvious jurisdictional basis, which would be the crime occurring in the US.

How did it affect the prosecution of individuals, especially in cases involving US nationals?

Tom Dannenbaum: The prosecution of US nationals for war crimes committed abroad was possible even before the Justice for Victims of War Crimes Act. However, the 2023 legislation covers war crimes by or against US permanent residents, not only US nationals or members of the US Armed Forces.

A criminal case against a specific individual would need to be established beyond reasonable doubt in court. It is the prosecutor’s burden to meet that threshold, including, for example, on the issues of the individual’s contribution and their mental state at the time.

There are several possible war crimes implicated in directing lethal attacks at persons solely on the basis of their location, age, and gender. The most obvious would be directing attacks against civilians, knowing that there was, at a minimum, a substantial and unjustifiable risk that the targets were civilians.

This is codified as a grave breach of Additional Protocol I and as a war crime in the Statute of the International Criminal Court. Although the US is not party to those treaties, this prohibition is also a war crime under customary international law, which applies to all states, including the United States. Nonetheless, it is not currently codified in US war crimes legislation.

Therefore, if charges were brought forward regarding any individual involved in indiscriminate sniping, the likely charge under US war crimes legislation, would be murder of a person taking no active part in hostilities.

An alternative would be willful killing as a grave breach of Geneva Convention IV (predicated on the occupation of Gaza), but this may be less likely, as it would implicate technicalities that would not arise in the alternative framing. Under the murder category, the key question regarding purposefully lethal actions would be whether the perpetrator acted with recklessness regarding whether the target was taking no active part in hostilities. Purposefully firing lethal rounds at persons solely on the basis of their location, gender, and age would properly be understood to meet that threshold.