The Legal War: Hamas’ Crimes against Humanity and Israel’s Right to Self-Defense
Ambassador Alan Baker
The ideological foundation of Hamas as set out in its national charter, and its actions of indiscriminate terror directed against Israeli towns, villages and citizens, clearly define its character as a terrorist entity. This is reflected in the fact that Hamas has been formally outlawed in major states.
The terrorist actions by Hamas, including the indiscriminate targeting of Israel’s civilian population centers and the deliberate and cynical exposure and use of its own civilians, mosques, hospitals and schools as human shields, are violations of international humanitarian law for which Hamas’ leaders and commanders are accountable and prosecutable.
International law recognizes Israel’s right to defend itself, whether by the conventional international right of self-defense as set out in the UN Charter or by the international customary right to self-defense.
Accusations that Israel is collectively punishing the Palestinian population of the Gaza Strip have no basis. Israel’s military actions are solely directed to one strategic and tactical purpose, not to punish the population, but to halt the indiscriminate rocket fire and terror infiltration into Israel’s sovereign territory.
The allegation leveled against Israel that it used disproportionate force is a misreading of the international rules of proportionality in armed conflict.
The allegation leveled against Israel that it used disproportionate force is a misreading of the international rules of proportionality in armed conflict, which are intended to regulate the extent of force needed in relation to the military challenge anticipated.
Much has been written and spoken about in the international media and by leaders in the international community regarding the violence in summer 2014 between the Hamas terror entity in the Gaza Strip and Israel, especially given the graphic pictures displayed by various media sources. But there are pertinent legal points that do not always figure in this barrage of selective, often inaccurate, and even malicious commentary and criticism. The following points summarize some of the legal aspects of this situation:
The Inherent Character of Hamas as a Terrorist Entity
The professed ideological foundation of Hamas, as set out in its national Charter,1 aligns it integrally with the Muslim Brotherhood and clearly identifies it as a terrorist entity. According to Hamas’ ideology, Israel has no place in the world and Hamas’ declared goal is the destruction of the Jewish state: “Hamas strives to raise the banner of Allah over every inch of Palestine.” In addition, the organization promotes an anti-Semitic ideology that glorifies jihad and the killing of Jews.
Whether the Hamas administration in the Gaza Strip is regarded as a component of the Palestinian Authority, following the April 2014 unification accord with PLO head Mahmoud Abbas (Abu Mazen),2 or as a “quasi-state,” a “non-state entity,” or even as a “state” (with borders and government), its character as a terrorist entity is well-established and universally recognized.
Such recognition includes formal and legal classification and outlawing of Hamas as a terror organization by the United States, Canada, Jordan, Egypt, Israel and Japan.3
Its declared modus operandi advocates and espouses terror against Israel as the means to achieve its ends. It views every Israeli man, woman, and child as a legitimate military target, thereby justifying its terrorist attacks by rockets, suicide bombings, murders, and abductions. It openly admits its strategy of terrorizing Israel’s civilian population through the use of rockets and missiles indiscriminately aimed at Israel’s cities, towns, and villages. Its leaders and spokesmen are on public record admitting their responsibility for such acts of terror. Thus, the indiscriminate rocket fire is consistent with its ideology, which sees Israeli civilian casualties as strategic and tactical military successes.4
Terrorism in International Law
International law and practice outlaw the use of terror, for whatever reason or justification. This is confirmed in a number of resolutions adopted by the UN Security Council, especially following the 11 September 2001 attacks against the United States.5
In its Resolution 1269 (1999)6 the Council, in the first operative paragraph of the resolution:
Unequivocally condemns all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed, in particular those which could threaten international peace and security.
More specifically, United Nations Security Council Resolution 1566, dated October 2004, passed under Chapter VII of the UN Charter, states as follows:
Condemns in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security.
[C]riminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.7
No less than 16 international conventions and protocols have been adopted between 1963 and the present day by the United Nations, criminalizing all aspects of international terror, including significant landmark resolutions of the UN General Assembly. Together they represent the clear consensus of opinion of the international community in outlawing all forms of terror.8
One such UN Convention is the 1997 International Convention for the Suppression of Terrorist Bombings,9 which criminalizes delivery of explosive devices to government facilities or public transportation.
Similarly, in this context, the operative provisions of the unanimously supported 1994 “UN Declaration on Measures to Eliminate International Terrorism”10 unequivocally condemn and criminalize all forms of terror.
In addition to the multinational instruments outlawing terror, there is an extensive series of regional counter-terror conventions, encompassing the African Union, OAS, ASEAN, CIS, SHARC, Shanghai Cooperation Organization, Council of Europe, EU Action Plan, Arab League, and the Organization of Islamic Conference.11
International Crimes and Criminal Responsibility by Hamas
Watch how Hamas exploits the IDF’s efforts to minimize civilian casualties in the Gaza Strip. (IDF/YouTube)
The terrorist actions practiced by Hamas – both indiscriminate targeting of Israeli cities and civilians, as well as the exposure of its own residents as human shields – are violations of international law and internationally accepted humanitarian norms, specifically, the violation of the rule of distinction, which requires combatants to limit attacks to legitimate military targets.12
As such, these constitute both crimes against humanity and war crimes, prosecutable before the International Criminal Court (ICC), as well as before municipal courts and tribunals that are guided by universal criminal jurisdiction.
Advocating a religious holy war aimed at creating a regional Islamic entity encompassing the whole of the territory of Israel, and the call to “liberate Palestine” and to “raise the banner of Allah over every inch of Palestine,”13 appear to contravene the provisions of the 1948 Convention on the Prevention of Genocide.14
The 1998 Rome Statute that founded the International Criminal Court (ICC) declares that the court is intended to deal with “the most serious crimes of concern to the international community as a whole.” Specifically, it gives the court jurisdiction regarding the above-mentioned crimes, and in the absence of a referral by a state, it enables both the UN Security Council and the court’s prosecutor to initiate investigations.15
Under international law, non-state actors are bound by customary norms of international humanitarian law when they become a party to an armed conflict.
Hamas has its own structured military force, political and social institutions, and de facto control over a defined territory, and has launched thousands of rockets towards Israeli cities, terrorizing and jeopardizing the lives of millions of Israelis. Hamas, even as a non-state entity, or part of a non-state entity, is considered by all accepted criteria to be fully accountable under international humanitarian law for its actions in carrying out its terror attacks against Israeli civilians and for using its own civilians as human shields. Thus, its leadership, commanders, and fighters are punishable for crimes against humanity and war crimes.
In her article “Accountability of Hamas under International Humanitarian Law” [IHL], jurist Sigall Horowitz states:16
Under international law, non-state actors are bound by customary IHL norms when they become a party to an armed conflict. Thus, the Appeals Chamber of the Special Court for Sierra Leone held as follows: “It is well settled that all parties to an armed conflict, whether states or non-state actors, are bound by international humanitarian law, even though only states may become parties to international treaties.”17
Regarding the individual criminal responsibility of Hamas members, Horowitz adds:
[T]he use by Hamas members of Qassam and Grad rockets in connection with the armed conflict, may amount to a war crime under the Rome Statute. Accordingly, these acts may entail the individual criminal responsibility of Hamas fighters who committed, ordered or assisted them, or otherwise contributed to their commission. These acts may also entail the individual criminal responsibility of Hamas military commanders and political leaders, under the principle of superior responsibility.18
In addition to the crime of conspiring and attempting to commit genocide referred to above, the following acts of terror carried out by Hamas constitute serious crimes of concern to the international community:
Indiscriminate Targeting of Israeli Towns and Villages and Civilians with Rockets
The 1907 Hague Regulations19 stipulate:
– Article 25: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”
The 1977 Protocol I to the Geneva Conventions20 includes:
– Article 48: Prohibition on targeting civilian objects
– Article 51(2): Prohibition of terrorizing the civilian population
– Article 51(4): Prohibition of indiscriminate attacks
– Article 57: Duty to minimize incidental loss of civilian life and injury
Using Civilians as Human Shields
Hamas knows that the IDF does everything it can to avoid civilian casualties. (IDF/YouTube)
Deliberately storing and firing rockets from within, or in close proximity to, hospitals, mosques, schools and houses in densely-populated areas, both to shield and camouflage rocket emplacements and in order to deliberately generate Israeli military action against such emplacements and thereby endanger Palestinian civilians, constitutes a war crime.21
The storing of rockets in an UNRWA school in Gaza is perhaps a typical example of this crime, which generated a statement of condemnation by UNRWA itself.22
The use of one of Gaza’s central mosques – the Al-Farouq Mosque in the Nuseirat refugee camp – for storing rockets and weapons and as a compound for Hamas operations is a further example of this crime.23
Article 51(7) of the 1977 Protocols to the Geneva Convention24 states:
The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations. 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 58(b) requires avoiding locating military objectives within or near densely populated areas.
The following provisions of the ICC Statute refer to such crimes:
- Article 7: crimes against humanity – the multiple commission of “widespread or systematic attack directed against any civilian population.”
- Article 8: war crimes – large-scale commission, as part of a plan or policy of intentional attacks against the civilian population or against individual civilians and civilian objects; intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians; attacking or bombarding towns, villages, dwellings or buildings which are not military objectives; utilizing the presence of civilians to render certain points, areas or forces immune from military operations; and using children under fifteen to participate in hostilities.
Israel’s Right to Self-Defense
International law recognizes two basic rights to self-defense. In conventional international law as set out in Article 51 of the UN Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”25
The second right is that of customary international law, based on the Caroline case (1837) which established a right of self-defense in the face of a necessity which is “instant, overwhelming, leaving no choice of means, and no moment of deliberation.”26
In several key resolutions, the Security Council has made clear that “international terrorism constitutes a threat to international peace and security” and has affirmed the inherent right of individual or collective self-defense as recognized by the Charter of the United Nations in the face of such terror.
This has been reiterated in Resolution 1368 (2001),27 adopted only one day after the September 11, 2001, attacks on the United States, in which the Security Council invokes the right of self-defense in calling on the international community to combat terrorism.
Similarly, in Security Council Resolution 1373 (2001),28 adopted pursuant to Chapter VII of the Charter, the Council “reaffirmed the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in Resolution 1368 (2001).”
Needless to say, neither of these resolutions imposed any limit on their application to terrorist attacks by state actors only, nor was an assumption to that effect implicit in these resolutions.29
Claims Being Made against Israel
The claim that Israel is collectively punishing the population of the Gaza Strip, enunciated by UK Deputy Prime Minister Nick Clegg,30 is both wrong and based on misleading legal assumptions. As stated above, Israel’s actions are directed toward one strategic and tactical purpose – not to punish the population but to halt the indiscriminate rocket fire and use of infiltration tunnels to carry out acts of terror against the civilian population.
While international law bars “collective punishment,”31 none of Israel’s combat actions against Hamas constitute collective punishment, whether in the form of imposition of penalties on individuals or groups on the basis of another’s guilt, or the commission of acts that would otherwise violate the rules of distinction and/or proportionality.32
However, the deliberate and systematic exposure by Hamas of its residents to Israeli combat activities, rather than permitting them to enter shelters and tunnels, and the systematic intimidation and threat of terror through indiscriminate daily rocket attacks directed against Israeli cities, constitute collective punishment of millions of Israeli citizens as well as Palestinian residents of the Gaza Strip and, as such, are flagrant and willful violations of the norms of international humanitarian law.
Deliberate Targeting of Residences
Israel is being falsely accused by the United Nations and others of deliberately and willfully targeting residences.33
Tragically, one of the many violations by Hamas of international humanitarian norms is the conduct of its terror activities within residential areas throughout the towns and villages in the Gaza Strip, including the use of commanders’ own homes where their families and other civilians may be residing. These houses have been used for weapons storage, and command, control, and communication centers.
The use of houses and other residential structures for military purposes endangers them and renders them as legitimate military targets under international law.
The use of residential structures for military purposes endangers them and renders them as legitimate military targets under international law. Even so, the IDF employs advanced methods to minimize harm to civilians.
Article 52(2) of the First Geneva Protocol34 specifically refers to the obligation to limit attacks to military objectives – “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization in the circumstances ruling at the time, offers a definite military advantage.”
In order to accurately determine military targets, the IDF employs advanced methods, including multiple levels of intelligence, the provision of legal advice to decision-makers, and extensive prior training provided to operational commanders. Even when a house is considered by all relevant legal criteria to be a legitimate military target, the Israeli forces minimize potential harm to the surrounding civilian population through real-time visual coverage in order to assess the civilian presence at a target; provision of advance warning before striking a target; and the careful choice of weaponry and ammunition in order to minimize harm to civilians.35
As such, Israel has no policy of deliberately targeting civilians or civilian property, and makes every effort to give effective advance warning of impending strikes that could potentially affect the civilian population.
Despite the deliberate policy and practice of Hamas to forcibly use civilians, including children, to shield their rocket and weapons emplacements, Israel has gone to great lengths in responding to the Hamas rocket attacks to ensure minimal harm to such civilians. This includes providing early warnings to persons residing or located in, or in the vicinity of, houses targeted because of their use for purposes of planning acts of terror, storing weapons, or as rocket emplacements, and public appeals to non-combatants to distance themselves from such targets.36
Hamas used a hospital in Gaza in order to shoot at Israel. The IDF repeatedly ensured that there were no civilians in the hospital before targeting it. (IDF/YouTube)
Allegations in the international media and by international organizations and some governmental representatives37 that Israel’s actions are “disproportionate” and thus in violation of international law are both factually and legally incorrect.
The requirement of proportionality in armed conflict is a measure of the extent of force needed in relation to the concrete and direct military advantage anticipated. It is not a comparison between casualties of the parties involved, nor of the damage caused during the fighting.38
A monograph entitled “Applying the Principle of Proportionality in Combat Operations,” published by the Oxford Institute for Ethics, Law and Armed Conflict,39 states: “[H]arming civilians is not in itself illegal. An injury to civilians or damage done to civilian objects as a side-effect of a military operation may be permissible provided that it is proportionate to the military gain anticipated from the operation.”
This principle is considered part of customary international law, which binds all states. It has become part of the positive law of armed conflict (IHL) with its codification in the First Additional Protocol to the Geneva Conventions of 1977. Article 51, para. 5b states: “[A]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”
That there were more civilian casualties and property damage within the Gaza Strip than there were in Israel is not a function of disproportionate use of force by Israel.
The tragic and regrettable fact that there were more civilian casualties and property damage within the Gaza Strip than there were in Israel is not a function of disproportionate use of force by Israel, or use of disproportionate weaponry, but of the fact, as outlined above, that Hamas forcibly and deliberately utilizes civilians and civilian structures and homes as human shields. The buildings are used for their rocket emplacements and command centers, thereby knowingly exposing the residents to harm with a view to both preventing Israeli actions against their rocket launching and other military facilities, and to cynically parade dead civilians in front of television cameras that transmit these gruesome pictures around the world with captions blaming Israel.
In so doing, Hamas committed a double war crime by deliberately targeting Israeli civilians while at the same time embedding its weapons, leaders, operatives, and infrastructures in the midst of uninvolved Palestinian civilians.
Similarly, the fact that Hamas prevented civilian access to its underground web of tunnels and bomb shelters, reserving them for its military commanders and for storage of rockets, and the fact that Israel had developed an extensive framework of shelters as well as its Iron Dome anti-missile defensive system, cannot be used as a basis for accusing Israel of disproportionate force.
The Comparison of Casualties
Perhaps one of the most reprehensible practices of the international media is the so-called “body-count” comparison, and the sad conclusion that disproportionality is exemplified by the fact that more Palestinians were killed than Israelis.40 The absurd assumption that this comparison makes is that more Israeli casualties would be preferable in order to “even-out” the count. Israel’s Iron Dome missile defense system, which has prevented thousands of potential Israeli civilian casualties from Hamas rockets, is blamed as the cause of this disparity in casualties.
Clearly, Israel cannot be held responsible for such an equation. As in any armed conflict, and especially in light of the circumstances of the 2014 Gaza war, civilians are tragically killed and injured. Unlike Hamas, Israel does not have a policy of deliberately targeting civilians, but regrettably, whether due to the fact that Hamas deliberately exposes its civilians to shield targets, or whether due to the occasional human or targeting error or inaccurate mapping, civilians are casualties.
Israel has very strict policies of investigating such instances, and in cases of alleged war crimes or negligence, taking the appropriate legal and disciplinary action.
Threats to Institute Action against Israeli Leaders in the International Criminal Court (ICC)
Among the media hype and political declarations by Palestinian leaders and senior elements within the international community, there is a constant wave of threats to institute proceedings for alleged war crimes against Israel’s leaders and military commanders before international and national criminal tribunals.
As outlined above, Israel’s code of military law and command structure require strict conformity with international humanitarian norms, and any allegations of violation of such norms by soldiers or commanders are duly investigated and, where appropriate, legal proceedings are instituted within Israel’s military justice framework. As such, the threats to institute action in the ICC are unrealistic and fail to consider the requirements of the statute of the ICC.
However, the openly-admitted and blatant series of war crimes committed by Hamas and its leaders as detailed in this chapter and the lack of any will, capability, legal framework, or means within the Hamas or Palestinian legal structure of investigating and trying such crimes, require that they be referred to the ICC with a view to ensuring that the leaders and instigators of the Hamas terror infrastructure be brought to criminal justice.
The “Hannibal Procedure” in Rafah, August 1, 2014
On August 1, 2014, after a truce was declared, a Hamas suicide bomber attacked an IDF unit in Rafah, killing and wounding several soldiers. The body of Lt. Hadar Goldin was not found, and it was apparent that he had been kidnapped and taken through a tunnel deeper into Rafah. A rarely used IDF phrase was immediately uttered on IDF field radios, the “Hannibal Procedure.” It is used in the “first minutes and hours after a possible abduction,” wrote Ha’aretz reporter Anshel Pfeffer, “when commanders in the field believe a soldier may have been taken by the enemy.”41 Military fire, including artillery and aerial bombardment, is used to block possible escape routes.
Such was the case in Rafah on August 1. Details of the IDF’s investigation of the incident reported that “the ‘Hannibal Procedure’ was not activated in Rafah,” and that “there was no massive indiscriminate firing toward Rafah homes” ordered to prevent the abduction.42 In keeping with the protocols of a “Rescue Operation,” heavy fire was launched at road junctions and known tunnel openings with the aim of making it difficult to transfer Goldin from the front. Because of the ceasefire that began earlier that day, no Israeli aircraft were in the skies; it would have taken them six minutes to arrive and block escape routes. IDF artillery, with its pre-programmed list of targets and tunnel entrances, engaged in three minutes.
Legal Basis for the Procedure
Despite its foreboding name randomly chosen by a computer, the so-called “Hannibal Procedure” is a measure of tactical proportionality, intended for selective and rare use, in a specific situation of asymmetric combat between forces of an organized army and armed elements including terrorists. It is applied when, during the course of the active combat, terrorists willfully and deliberately abuse and undermine the accepted norms of armed conflict and international humanitarian law, including by shielding themselves in the midst of civilians and utilizing civilians to achieve their aims.
Faced with such an asymmetric dilemma, this procedure is intended to pre-anticipate and counter a grave and immediate “ticking bomb” situation by preventing, by the use of necessary force, a potential terrorist act of abduction of soldiers or civilians, torture, body-mutilation, beheading, long-term kidnapping and/or extended extortion/blackmail, for use as a bargaining chip in order to secure the release of thousands of terrorists, or demands by the terror groups for extreme political concessions. Such situations are inevitably accompanied by demands with a high price tag, whether financially, politically or morally, and a limited time-frame in which to respond.
The procedure is aimed at preventing those measures that would inevitably lead to the endangering of the lives of significant numbers of people through the mass release, and return to activity, of hundreds and possibly thousands of terrorists. By the same token, it is aimed at avoiding situations of long, drawn-out periods (sometimes over several years) of imprisonment and hostage bargaining. In this way it is also intended to prevent the strengthening of the financial, political, and operational capabilities of the terror organization involved.
The procedure involves using the amount of force necessary to foil any such potential abduction, and thereby to destroy escape routes and prevent such hostage/extortion/torture situations. In light of the strict requirements of the international law of armed conflict which limit the use of force in situations which could cause incidental loss of civilian life or injury to civilians and only to situations dictated by the concrete and direct military advantage anticipated, the force used in this procedure is therefore strictly proportionate to achieving that military aim.
The Actual Numbers Killed in the Rafah Rescue Attempt
In the case of the Rafah kidnapping, it was later determined that Lt. Goldin was killed in the initial attack and his dead body was taken by Hamas fighters as a bargaining chip. Hamas claimed 130 Palestinian civilians were killed. An IDF investigation concluded that 41 people, including 12 Hamas combatants, were killed.
Armed conflict in any circumstances involves situations in which civilians are regrettably affected. International law aims to limit harm to innocent civilians by ensuring that the involved parties conduct the hostilities in accordance with humanitarian norms with a view to preventing, as much as possible, civilian casualties.
Israel, a sovereign state with an army that conducts itself in accordance with such norms, is making every effort to abide by them, despite the blatant, willful, and indiscriminate violation by Hamas, both vis-a-vis its own population as well as vis-a-vis Israel’s population.
One hopes that the crimes against humanity and the war crimes committed by the leaders and senior terrorist commanders of Hamas will not go unpunished, and that the international community will act to ensure that they do not benefit from impunity.