Hamas' War Crimes

(With thanks to colleague Charles Abelson at Truth be Told -TbT)

Hamas' actions are in clear violation of the most fundamental principles of the laws of armed conflict, including the principle of distinction. This principle requires parties to an armed conflict to refrain from deliberately targeting civilian population or civilian objects. Likewise, it requires parties to distinguish its military operations and the civilian population, and to refrain from using the presence of the civilian population to shield military objectives.

Hamas violates this fundamental principle in two main ways –

·       By deliberately attacking Israel's civilian population, including by conducting suicide, rocket and mortar attacks.

·       By deliberately and systematically employing tactics which put the Palestinian civilian population in danger, including the launching of attacks from within densely populated areas, the use of human shields, deploying weapons storage sites and command centers in residential homes and in densely populated areas and commandeering sensitive sites (such as hospitals, private homes, schools and mosques) for terrorist use. 

These actions clearly constitute war crimes, as defined by international law and may also amount to crimes against humanity.

The principle of distinction is anchored in customary international law. It has been reflected in treaties and other sources of international law, including in several articles of the Additional Protocol to Geneva Conventions, 1979.[1] For example:

·       Article 48:  “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

·       Article 51(2): "The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited"

·       Article 58: " The Parties to the conflict shall, to the maximum extent feasible: (a)…endeavor to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;

(b) Avoid locating military objectives within or near densely populated areas;"

·       Article 51(7): "… The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations."

·       Article 12(4): "Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety."

·       Article 53: "It is prohibited (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort;

Palestinian UN representative themselves say every missile fired from Gaza at Israel is ‘a crime against humanity’ 

In interview with PA TV, diplomat details possible risks to the Palestinians of their joining the International Criminal Court.

The Palestinian representative to the UN Human Rights Council in Geneva said that every rocket and mortar fired from Gaza toward Israel is a “crime against humanity.”

Speaking on July 9 to Palestinian Authority TV on the possible risks involved if Palestinians leaders ask to join the International Criminal Court — as they have threatened to do in order to push for measures against Israel — Ambassador Ibrahim Kraishi said the “Palestinian weakness” in terms of international law is the indiscriminate firing of rockets at Israel.

“The missiles that are now being launched against Israel, each and every missile constitutes a crime against humanity, whether it hits or misses, because it is directed at civilian targets,” said Kraishi.

The ambassador said that, by contrast, Israel’s actions follow legal procedures, because the IDF warns Gazan civilians to leave sites and areas before they are bombed.

“Many of our people in Gaza appeared on TV and said that the Israelis warned them to evacuate their homes before the bombardment. In such a case, if someone is killed, the law considers it a mistake rather than an intentional killing because [the Israelis] followed the legal procedures.”

“As for the missiles launched from our side, we never warn anyone about where these missiles are about to fall or about the operations we carry out,” he says.

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[1] It should be noted that Israel is not a Party to the Additional Protocols. Nevertheless, it is Israel's position that a number of Articles in the Protocol reflect customary international law.