While the human rights organizations are pointing an accusing finger at Israel due to the operation in Gaza, according to international law it is precisely Hamas that committed war crimes. The widespread accusation regarding disproportional use of force does not meet the test of international law that places the emphasis on intention rather than results.
Below is a summary from a briefing to foreign journalists and diplomats at the Jerusalem Center for Public Affairs on February 9, 2009. To read the full study by Dr. Avi Bell and Justus Wiener on the subject of international law and the operation in Gaza, click here. To watch the video briefing, click here or to hear the audio recording click here.
War Crimes in Gaza
A few days ago an article appeared in which human rights organizations responded to the question of why they did not demand the launch of an investigation regarding human rights violations by Hamas. The answer that they provided was that the firing of rockets constituted such a clear violation that it left nothing to investigate. On the other hand, Israel’s actions are more subject to interpretation. If the objective of the organizations is to promote taking responsibility for unsavory actions, they should focus on clear violations and not on cases that can provoke scholarly research at the universities.
The Hamas Covenant Is a Flagrant Violation of the Genocide Convention
The Hamas covenant, written more than 21 years ago, posits the need to destroy Israel via armed struggle as part of a more comprehensive struggle against the Jews. The covenant contains detailed descriptions of the Jew as a hoarder of money, instigator of revolutions, war monger, the founder of secret societies, etc. Zionist influence is omnipresent, and the covenant calls for a continuation of jihad in its various forms. According to the covenant, the Jews must recognize the superiority of Islam and convert to it. If they fail to do so, their fate is sealed. There is no option for peace arrangements or compromise. One can view the copious evidence that demonstrates that the call for liquidating the Jews is broadcast daily in the mosques. Given the definition of targets in its covenant, Hamas engages in terror atrocities directed primarily against civilians.
The Obligation to Restrain Hamas
From a legal standpoint we are dealing with a violation of paragraph 2 to the Convention on the Prevention and Punishment of Genocide. Ostensibly, anyone who is a signatory to the convention is expected to restrain and punish Hamas. It has also been established that even a country that is not a signatory is bound by the convention and must act accordingly.
The Legitimacy of Attacking Targets that Engage in Incitement
An additional implication of the convention is related to the definition of “legitimate targets,” because it was decided that striking targets that incite to genocide is permissible. This occurred in Rwanda and in Kosovo, where radio and television stations that incited to genocide were hit.
The UN Security Council Resolution on the Prevention of Terror Mandates a Worldwide Struggle against Hamas
The definition of a terrorist organization according to the international convention also includes someone who supports or contributes to a terrorist organization. According to the UN Security Council Resolution on the Prevention of Terror (paragraph 7), all states are obligated to act in accordance with this resolution; in other words, to take action against the financing of terror or any form of active or passive support for terror. Resolution 1566 of the Security Council emphasized that there is no justification for evading the resolution due to political, ethnic, or other identification. In other words, the fact that Hamas has a political agenda, and even the fact that it was a party elected in democratic elections, has no relevance to its definition as a terrorist and genocidal organization.
A Violation of International Law: The Manner in which Hamas Initiated the War against Israel and Its Conduct during the War
In all the main media outlets it was reported that the war began on December 27, despite the fact that it was Hamas who announced a week previously that it was terminating the cease-fire. Hamas also declared its intention to subject thousands of additional Israelis to the threat of rockets.
Paragraph 2 (4) to the UN Charter prohibits a state from attacking another state save for the purpose of self-defense (paragraph 51). This is, of course, relevant if we define Hamas’ role in Gaza as that of a state. It is prohibited to direct attacks against civilian targets, whereas Hamas attacked civilians exclusively.
As for the use of human shields, the Fourth Geneva Convention prohibits the use of civilians to protect combatants. The New York Times, as well as other noted newspapers, published pictures and descriptions of Hamas members calling upon civilians to stand on buildings in order to prevent attacks on the buildings.
Disguising oneself as a civilian or the military use of doctors uniforms or ambulances is similarly prohibited. In many places it was reported that Hamas members were attired in civilian clothing. Additionally, there were reports that Hamas members used hospitals as a refuge, fighters concealed their weapons, while ambulances were commandeered.
Aside from the use of human shields, a separate prohibition exists on employing children. There are many pictures illustrating Hamas’ involving children in terror activity.
Accusations Regarding the Disproportionate Use of Force: What Are the Criteria Governing This Definition?
Israel was accused of aiming at civilian targets. This accusation was already born on the first day of the operation, even before the defined targets existed, and therefore it is difficult to respond to this accusation because it is not based on evidence. A more common accusation is that Israel “undoubtedly” committed war crimes, given the high number of Palestinians killed in comparison with the low rate of casualties sustained by Israel. This accusation in practice argues that there was a disproportionate use of force.
International law determines that when one attacks legitimate military targets one can inflict collateral damage as long as this damage is proportional in terms of military necessity. Following the war in Kosovo, complaints were directed against NATO regarding the indiscriminate use of force. For example, one accusation was that NATO forces struck a television broadcasting station. All sides admitted that the station was deliberately bombed. Some 10 to 17 civilians were killed in the attack. The question that was asked at a special tribunal that examined the issue was whether this was a legitimate target, because the result was the suspension of broadcasts for only a few hours. The verdict was that the attack was proportional to the objective of silencing the station’s activity for a few brief hours. The question of proportionality is something that is difficult to quantify; nonetheless, the aforementioned precedent illustrates what is acceptable under international law. In Gaza, no attacks took place that even approached these ratios.
Comparative Statistics and the Issue of the Reliability of the Information Sources
During the first Gulf War there were no known cases where people were placed on trial for disproportionate use of force. During that war 605 Kuwaitis, as opposed to 20,000-25,000 Iraqis, were killed. The Ministry of Health in Gaza that belongs to Hamas reported that during the Gaza operation, 1,300 Palestinians, including 48 Hamas members, were killed. These numbers were cited everywhere. From Israeli statistics, by contrast, it emerges that 1,134 Palestinians were killed in the operation, of which 673 belonged to Hamas and other terror groups.
There is a dearth of systematic material regarding the definition of legitimate targets. Nevertheless, the International Red Cross drew up a list detailing what are legitimate targets during war: armed forces and their auxiliaries, providers of logistic support, factories and plants manufacturing for the war effort, auxiliary research institutes, means of communication, and transportation arteries.
Mistakes Are Not Considered War Crimes
One of the charges leveled against Israel was voiced following the attack on a laboratory within a university. An inspection revealed that we were dealing with a laboratory for manufacturing Kassam rockets. But even if we were to assume that Israel made a mistake about the target, due to an intelligence failure, for example, this does not turn it retroactively into a war crime. The prohibition applies to premeditated damage to a civilian target. The NATO forces in Kosovo were likewise not accused of war crimes, although they hit a train and other civilian targets due to intelligence errors. Furthermore, it was decided that NATO aircraft did not have to risk their lives in low altitude flights in order to acquire more precise intelligence data. Therefore, even if Israel erred in its target selection, we are not dealing with war crimes but with an unfortunate error. The important point is the intent of the attacker, whether he intended at the very outset to damage civilian targets, rather than the result in practice.