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.
* * *
1 Hamas Charter, http://www.acpr.org.il/resources/hamascharter.html, see Article 2:
The Islamic Resistance Movement is one of the wings of the Muslim Brothers in Palestine. The Muslim Brotherhood Movement is a world organization, the largest Islamic Movement in the modern era. It is characterized by a profound understanding, by precise notions and by a complete comprehensiveness of all concepts of Islam in all domains of life: views and beliefs, politics and economics, education and society, jurisprudence and rule, indoctrination and teaching, the arts and publications, the hidden and the evident, and all the other domains of life.
See also article 7:
Hamas is one of the links in the Chain of Jihad in the confrontation with the Zionist invasion. It links up with the setting out of the Martyr Izz a-din al-Qassam and his brothers in the Muslim Brotherhood who fought the Holy War in 1936; it further relates to another link of the Palestinian Jihad and the Jihad and efforts of the Muslim Brothers during the 1948 War, and to the Jihad operations of the Muslim Brothers in 1968 and thereafter.
And Article 13:
There is no solution to the Palestinian problem except by Jihad. The initiatives, proposals and International Conferences are but a waste of time, an exercise in futility. The Palestinian people are too noble to have
their future, their right and their destiny submitted to a vain game.
2 Yazan al-Saadi, “Palestinian Reconciliation: A History of Documents,” Al Akhbar English (Lebanon), April 28, 2014, http://english.al-akhbar.com/node/19580
3 See U.S. “Country Reports on Terrorism 2005,″ U.S. Department of State, Office of the Coordinator for Counterterrorism, April 2006, p. 196. See also “Designated Foreign Terrorist Organizations,” U.S. Department of State, Bureau of Counterterrorism, http://www.state.gov/j/ct/rls/other/des/123085.htm; Canadian “Currently Listed Entities,” Department of Public Safety and Emergency Preparedness. November 22, 2012; EU Council Common Position 2003/651/CFSP; Khaled Abu Toameh, “King Abdullah Says No to Hamas,” Gatestone Institute, September 17, 2013, http://www.gatestoneinstitute.org/3978/king-abdullah-hamas; “Cairo Court Bans Activities by Palestinian Hamas in Egypt, Brands It a Terrorist Organization,” Associated Press, March 4, 2014, http://www.foxnews.com/world/2014/03/04/cairo-court-bans-activities-by-palestinian-hamas-in-egypt-brands-it-terrorist/
4 See “Hamas Claims Responsibility for Rockets Fired at Jerusalem, Tel Aviv and Haifa,” Middle East Eye, July 8, 2014, http://www.middleeasteye.net/news/israels-army-prepared-ground-assault-gaza-official-275282816: “For the first time, the Ezzedine al-Qassam Brigades strike Haifa with an R160 rocket, and strike occupied Jerusalem with four M75 rockets and Tel Aviv with four M75 rockets.”
See also Khaled Abu Toameh and Yaakov Lappin, “Hamas Claims Responsibility for Rocket Fire on Israel,” Jerusalem Post, July 7, 2014, http://www.jpost.com/Middle-East/Hamas-claims-responsibility-for-rocket-fire-on-Israel-361830 and “The Islamic Jihad took responsibility for the rockets fired toward Tel Aviv,” in Yaakov Lappin, “Hamas: We Attempted to Hit the Nuclear Reactor in Dimona,” Jerusalem Post, July 9, 2014,
See also “Hamas Says Real Battle Yet to Begin,” i24news, July 11, 2014, http://www.i24news.tv/en/news/israel/diplomacy-defense/36623-140708-gaza-israel-launches-operation-protective-edge. In a video statement broadcast across Arab media, the Al-Qassam Brigade said: “The more shahids falling make us stronger and more determined for victory. For the first time yesterday, we showered from the north of the homeland to the south in Dimona. Tens of rockets showered the center of the occupation. That is only a few of what is waiting.”
See also Elhanan Miller, “Fatah Joins Hamas and Islamic Jihad in Missile Launches,” Times of Israel, July 10, 2014, http://www.timesofisrael.com/moderate-fatah-joins-hamas-and-islamic-jihad-in-missile-launches/#ixzz37KhRmK25.
See also “Israeli Warplanes Pound Gaza Strip,” The Australian, July 9, 2014, http://www.theaustralian.com.au/news/world/israeli-warplanes-pound-gaza-strip/story-e6frg6so-1226982452456?nk=30dd8b2330cf43d6507b130e303ae6c6: “The Ezzedine al-Qassam Brigades, the armed wing of Hamas, said it had fired four M75 rockets at Jerusalem, which lies 65 kilometers from the Palestinian enclave. It also claimed to have launched a rocket at Haifa, 165 kilometers away. There was no report of anything hitting the northern port city but the army said a rocket did fall on Hadera, 100 kilometers north of Gaza. Hamas militants also said yesterday they fired four rockets at Tel Aviv, 60 kilometers north of Gaza, setting sirens off across the city. Earlier, another rocket aimed at Israel’s commercial capital was shot down by the Iron Dome antimissile defense system.”
See also “Operation Protective Edge, Day 4,” Ha’aretz, July 12, 2014, http://www.haaretz.com/news/diplomacy-defense/.premium-1.604437: “Hamas’ armed wing has warned airlines that it intends to target Israel’s Ben-Gurion International Airport with its rockets from Gaza and has told them not to fly there, a statement by the group said on Friday.”
See also Jen Psaki, Spokesperson, U.S. State Department, July 10, 2014, http://www.state.gov/r/pa/prs/dpb/2014/07/229048.htm: “There’s a difference between Hamas, a terrorist organization that’s indiscriminately attacking innocent civilians in areas where there are innocent civilians in Israel, and the right of Israel to respond and protect their own civilians. And that’s what we’re seeing on the ground take place.”
See also Patrick Martin, “Lopsided Rocket Warfare Rages On between Israel and Hamas,” Globe and Mail (Canada), July 11, 2014, http://www.theglobeandmail.com/news/world/lopsided-rocket-warfare-rages-on-between-israel-and-hamas/article19578271/: “Hamas also showed no sign of letting up its missile strikes against Israel, acknowledging responsibility for scores of rockets fired Friday against Israeli centers including the launch of a powerful Iranian-built Fajr-5 against Tel Aviv.”
See also “Hamas Armed Wing Warns to Strike Tel Aviv,” Xinhua, July 13, 2014, http://www.shanghaidaily.com/article/article_xinhua.aspx?id=229441: “The armed wing of the Islamic Hamas movement, al-Qassam Brigades, said on Saturday that it will fire new rockets called J80 into Tel Aviv and its suburb at 9:00 p.m. local time. It is the first time that Hamas declared in advance that it will fire rockets into Israel. The group claimed responsibility for launching hundreds of rockets into Israel over the past five days against the Israeli offensive on the Gaza Strip.”
See also Brent Scher, “Hamas Rockets from Gaza Target Haifa, Reach Far into Northern Israel,” Washington Free Beacon, July 9, 2014, http://freebeacon.com/national-security/hamas-rockets-from-gaza-target-haifa-reach-far-into-northern-israel/: “The barrage of rocket fire coming from the Gaza Strip reached far beyond the known range of Hamas’ missile arsenal, hitting the northern Israeli town of Hof HaCarmel on Wednesday. The town is just south of Haifa, Israel’s third-largest city. Hamas claimed responsibility for the attacks and said that Haifa was the intended target.”
See also “Israeli Defense Forces Launch Operation ‘Protective Edge’ against Hamas,” Voice of Russia, July 8, 2014, http://voiceofrussia.com/news/2014_07_08/Israeli-Defense-Forces-launch-operation-Protective-Edge-against-Hamas-6359/: “The Ezzedine al-Qassam Brigades claimed responsibility for the attacks. ‘Al-Qassam fired dozens of rockets on Netivot and Ashkelon, Ashdod and Ofakim in response to the Zionist aggression,’ a statement said. ‘Qassam rockets are a natural reaction to the Israeli crimes against our people.’”
5 See UN Security Council Resolutions 1267 (1999) of October 15, 1999, http://www.state.gov/j/ct/rls/other/un/5110.htm; 1373 (2001) of September 28, 2001,
http://unispal.un.org/UNISPAL.NSF/0/392A001F254B4B9085256B4B00708233; 1540 (2004) of April 28, 2004, http://www.treasury.gov/resource-center/sanctions/Documents/1540.pdf; as well as its other resolutions concerning threats to international peace and security caused by terrorism.
6 UN Security Council Resolution 1269 (1999) of October 19, 1999, http://www.mefacts.com/cached.asp?x_id=10835
7 UN Security Council Resolution 1566 (2004) of October 8, 2004, http://www.state.gov/j/ct/rls/other/un/66959.htm
8 “United Nations Action to Counter Terrorism – International Legal Instruments,” United Nations, http://www.un.org/en/terrorism/instruments.shtml
9 “Measures to Eliminate International Terrorism – Report of the Sixth Committee,” United Nations, November 25, 1997, http://www.un.org/law/cod/terroris.htm
10 “Measures to Eliminate International Terrorism,” UN General Assembly Resolution 49/60, December 9, 1994, http://www.un.org/documents/ga/res/49/a49r060.htm
11 “(Inter-) Regional Action against Terrorism,” UN Office on Drugs and Crime, https://www.unodc.org/tldb/en/regional_instruments.html
12 See Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2005), p. 82.
13 Article 6 of the Hamas Charter.
14 78 UNTS 277.
15 Rome Statute of the International Criminal Court, http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf. See specifically Articles 7(1) and (2)a (Crimes against humanity) and Article 8(2)(b)(i)(ii)(iv) (War crimes), and Article 13 (Exercise of the court’s jurisdiction).
16 See Sigall Horowitz, “Accountability of Hamas under International Humanitarian Law,” Hamas, the Gaza War, and Accountability under International Law (Jerusalem: Jerusalem Center for Public Affairs, 2009), https://jcpa.org/article/accountability-of-the-hamas-under-international-humanitarian-la/. Horowitz adds, “It can safely be argued that Hamas fighters, who daily targeted Israeli civilians by launching Qassam and Grad rockets, violated the provisions of Common Article 3 (to the Geneva conventions).”
17 Quoted in Horowitz article, citing Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), May 31, 2004, para. 22. See more at Horowitz, “Accountability of Hamas,” https://jcpa.org/article/accountability-of-the-hamas-under-international-humanitarian-la/
18 Ibid. See also Lisbeth Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002).
19 “Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, October 18, 1907 – Article 25,” International Committee of the Red Cross, http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=D1C251B17210CE8DC12563CD0051678F.
20 “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977 – Article 48,” International Committee of the Red Cross, http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=8A9E7E14C63C7F30C12563CD0051DC5C
21 For a detailed exposure of the use by Hamas of homes of senior Hamas operatives as command centers and weapons storage facilities, see “Weapons Caches in Houses of Terrorist Operatives in the Gaza Strip: The Case Study of Ibrahim al-Shawaf, Senior PIJ Commander,” Intelligence and Terrorism Information Center, July 15,
22 “UNRWA Strongly Condemns Placement of Rockets in School,” UNRWA, July 17, 2014, http://www.unrwa.org/newsroom/press-releases/unrwa-strongly-condemns-placement-rockets-school. Evidently, according to media reports, this did not prevent the UNRWA officials from transferring the rockets found in the school to the Hamas authorities. See Raphael Ahren, “UN Agency Handed Rockets Back to Hamas, Israel Says,” Times of Israel, July 20, 2014, http://www.timesofisrael.com/un-agency-handed-rockets-back-to-hamas-israel-says/
23 “The Use of Mosques in the Gaza Strip for Military Purposes by Hamas and Other Terrorist Organizations: The Case of the Al-Farouq Mosque,” Intelligence and Terrorism Information Center, July 13, 2014, http://www.terrorism-info.org.il/Data/articles/Art_20672/E_113_14_1401598645.pdf
24 See note 10 above, http://www.un.org/documents/ga/res/49/a49r060.htm
25 Charter of the United Nations, “Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression,” http://www.un.org/en/documents/charter/chapter7.shtml
26 Louis-Philippe Rouillard, “The Caroline Case: Anticipatory Self-Defence in Contemporary International Law,” Miskolc Journal of International Law (Hungary), Vol. 1 (2004), No. 2, pp. 104-120, http://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htm
27 “Security Council Condemns, ‘in Strongest Terms,’ Terrorist Attacks on United States,” United Nations, September 12, 2001, http://www.un.org/News/Press/docs/2001/SC7143.doc.htm
28 UN Security Council Resolution 1373 (2001) of September 28, 2001, http://unispal.un.org/UNISPAL.NSF/0/392A001F254B4B9085256B4B00708233
29 See Thomas Franck, “Terrorism and the Right of Self-Defense,” American Journal of International Law, Vol. 95, (2001), pp. 839-840.
30 “’Israel Attacks Are Collective Punishment!’ Nick Clegg Slams Gaza Op,” RT-News, July 17, 2014, http://rt.com/uk/173592-clegg-israel-gaza-ceasefire/
31 “Rule 103. Collective Punishments,” Customary IHL, International Committee of the Red Cross, http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule103
32 Justus Reid Weiner and Abraham Bell, “International Law and the Fighting in Gaza,” Jerusalem Center for Public Affairs, 2008, p. 16, https://jcpa.org/article/international-law-and-the-fighting-in-gaza/
33 “Statement by Director of UNRWA Operations in Gaza, Robert Turner, on the Unfolding Situation in the Strip,” UNRWA, July 10, 2014, http://www.unrwa.org/newsroom/official-statements/statement-director-unrwa-operations-gaza-robert-turner-unfolding
34 See note 10 above, http://www.un.org/documents/ga/res/49/a49r060.htm
35 “IDF Strikes Houses in Gaza Used for Military Purposes,” Israel Defense Forces, July 10, 2014,
36 “Palestinian Envoy to UNHRC: Israelis Warn Civilians Before Attacks, We Don’t,” MEMRI TV, July 13, 2014, https://www.youtube.com/watch?v=DjzS27ylCZ8
37 “Argentina Condemned the Violence in Gaza and Israel’s ‘Disproportionate’ Use of Military Force,” Telam (Argentina), July 21, 2014, http://www.telam.com.ar/english/notas/201407/2801-argentina-condemned-the-violence-in-gaza-and-israels-disproportionate-use-of-military-force.html; “Turkey Condemns ‘Disproportionate’ Israeli Violence in Gaza,” Jerusalem Post, October 4, 2011, http://www.jpost.com/Breaking-News/Turkey-condemns-disproportionate-Israeli-violence-in-Gaza; “British Parliament Accuses Israel of War Crimes,” Socio-Economics History Blog, July 14, 2014, https://socioecohistory.wordpress.com/2014/07/22/british-parliament-accuses-israel-of-war-crimes/
38 “Rule 14. Proportionality in Attack,” Customary IHL, International Committee of the Red Cross,
39 Janina Dill, “Applying the Principle of Proportionality in Combat Operations,” Oxford Institute for Ethics, Law and Armed Conflict, University of Oxford, December 2010,
40 Stephanie Gutmann, “The Body-Count Cliché – The Victim-Loving Western Media Have a Weakness for Palestinians,” National Review, July 11, 2014, http://www.nationalreview.com/article/382471/body-count-clich-stephanie-gutmann. See also Eric H. Yoffe, “The Bizarre Moral Criticism Against Israel – What Does It Mean to Say that Casualties Are ‘Disproportionate’?” TIME, July 14, 2014, http://time.com/2982215/israel-gaza-casualties/
41 Anshel Pfeffer, “The Hannibal Directive: Why Israel Risks the Life of the Soldier Being Rescued,” Ha’aretz, August 3, 2014, http://www.haaretz.com/news/diplomacy-defense/.premium-1.608693
42 Amir Rappaport, “It’s Apparent the ‘Hannibal Directive’ Was Not Ordered in Gaza. No One to Be Charged,” Makor Rishon-NRG (Hebrew), January 30, 2015, http://www.nrg.co.il/online/1/ART2/672/957.html