Government of Israel, January 6, 2009.
Background
As part of the Disengagement initiative in 2005, Israel withdrew all its military
forces and civilians from the Gaza Strip (including from its border with Egypt),
thereby ending its presence in that territory and handing over control to the
Palestinian Authority. Since then, the Hamas terrorist organization – which rose
to power in Palestinian elections in January 2006 and then wrested control of
the Gaza Strip from the Palestinian Authority by means of an armed coup in
mid-2007 – has continued to pursue a policy of armed attacks directed against
Israel and its citizens.
While Hamas and other terrorist groups continue to make efforts to carry out
acts of terrorism within Israel by a variety of means, including suicide
bombings, in the last few years, Hamas’ primary means of attacking Israel from
the Gaza Strip, has been characterized by the firing of rockets and mortars
against neighboring Israeli population centers. Indeed, since Hamas assumed
control of the Gaza Strip in mid-2007, there have been more than 5,000
rockets fired into Israel from within Gaza by Hamas and other terrorist
organizations, placing a quarter of a million of Israeli civilians under incessant
terrorist attacks.
The increasing range and intensity of these deadly rocket attacks, deliberately
aimed to kill and injure civilians, have recently reached as far as some of Israel’s
main cities, including Ashkelon, Ashdod and Be’er Sheva. Alongside the death
and destruction caused by these attacks, the continuing rocket fire is aimed at
terrorizing hundreds of thousands of Israeli civilians, making it impossible to
maintain any sort of normalcy in an ever larger part of the country, and
affecting every aspect of civilian life, ranging from home life, to schools and
businesses.
As documented in this report, Hamas’ violent and deliberate attacks against
Israeli civilians and civilian objects, is accompanied by their equally callous
disregard for the safety of Palestinian civilians living in the Gaza Strip: by
launching attacks from within the confines of densely populated areas, by
storing missiles and rocket launchers under mosques and homes, by using
university facilities and other protected places to develop weapons and
explosives, Hamas systematically abuses the protections afforded to civilians
and civilian objects under international law, while placing the safety and welfare
of these civilians at great risk.
These morally reprehensible acts also constitute grave violations of the Laws of
Armed Conflict, as well as war crimes as indicated by this brief paper.
Legal framework
Whereas the Laws of Armed Conflict (sometimes also referred to as “Laws of
War” or “International Humanitarian Law”) have traditionally been applied to
armed conflicts between sovereign States, and while questions remain as to
whether armed conflicts involving non-State actors should be categorized as
international or non-international armed conflicts, there is little doubt that the
basic principles of the Laws of Armed Conflict, as codified in international
treaties and customary international law, apply to and impose obligations on all
parties to a conflict, including those armed groups such as Hamas and other
terrorist organizations operating from within the Gaza Strip.
This brief paper seeks to point to some of the basic principles of the Laws of
Armed Conflict which are relevant to, and widely flouted by, Hamas and other
terrorist organizations, as clearly evidenced in the main body of this report.
(A) Attacks directed against civilians and civilian objects
One of the most serious violations of international law committed by the Hamas
terrorist organization is constituted by its deliberate, systematic and widespread
use of rocket attacks and suicide bombings directed at civilians and civilian
objects. Such conduct contravenes a number of well-established principles of
the Laws of Armed Conflict, and clearly constitutes a war crime and a crime
against humanity.
- Contravention of the principle of distinction
The act of directing attacks against civilians and civilian objects contravenes the
Principle of Distinction – the most fundamental rule of the Laws of Armed
Conflict; according to this principle, parties must at all times distinguish
between civilians and combatants. Moreover, under this rule, it is strictly
prohibited to direct attacks at civilian objects or civilians not taking a direct part
in hostilities.The age old principle is neatly encapsulated by Article 48 of Additional Protocol
I to the Geneva Conventions of 1949 and Relating to the Protection of Victims
of International Armed Conflict (1977), stating that:“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.”The violation of this basic prohibition also amounts to a war crime. See for
example, Article 8(2)(b)(i) of the Rome Statute of the International Criminal
Court (1998), which includes within its list of acts constituting war crimes, the
following:“Intentionally directing attacks against the civilian population as such or against
individual civilians not taking part in hostilities”. - Contravention of the prohibition of committing acts or threats of violence
the primary purpose of which is to spread terror among the civilian populationAlongside its aim of causing death, injury and destruction, there can be no
doubt that Hamas’ almost daily rocket attacks, aimed at Israel’s southern towns
and cities, is aimed primarily at sowing terror among Israel’s civilian population.This, it should be noted, also amounts to a serious violation of an express
prohibition under the Laws of Armed Conflict. Article 51(2) of Additional
Protocol I to the Geneva Conventions of 1949 and Relating to the Protection of
Victims of International Armed Conflict (1977) states the rule thus:“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.”
(B) Unlawful Methods of War employed by Hamas
In addition to the abovementioned violations of international law constituted by
the deliberate and systematic rocket attacks directed at civilians and civilian
objects, Hamas is also accountable for violating fundamental obligations under
international law with respect to the protection of the civilian population under
its control, as evidenced in this report.
- Utilizing the presence of civilians to render certain points, areas or military
forces immune from military operationsAs clearly shown in this report, Hamas makes operational use of heavily built-up
and densely populated civilian areas in the Gaza Strip, for the planning,
organizing and launching of rocket attacks. Moreover, Hamas deliberately
makes use of civilian facilities (such as universities) for weapons development,
and makes systematic use of protected civilian areas (including under homes
and even mosques) for the hiding and storage of rockets, explosives and
ammunition.Such actions by the Hamas and other terrorist organizations clearly undermine
the protections afforded to civilians in armed conflict, and puts such civilian
objects at grave risk, by making them liable to attack. This, in direct
contravention of the Laws of Armed Conflict, which prohibit using the presence
of civilians in order to render certain points, areas or military forces immune
from military operations.Indeed, such conduct amounts to a war crime. See for instance, Article
8(2)(b)(xxiii) of the Rome Statute of the International Criminal Court (1998),
which includes in its list of “war crimes” the act of:“Utilizing the presence of a civilian … to render certain points, areas or military
forces immune from military operations”. - Human shielding
Perhaps even more reprehensible than the storing of weapons and launching of
attacks from within civilian areas, is Hamas’ increasingly widespread and
systematic use of civilians directly as “human shields”. Such conduct has been
seen, for instance, when Hamas specifically calls on Palestinian men, women
and children to flock to military targets which are expected to be attacked, in
order to form “human shields”.As well as making the Hamas directly responsible for tragic and unnecessary
civilian casualties in the Gaza Strip, such egregious violations of the express
prohibitions under the Law of Armed Conflict, as stated above, clearly
constitutes a war crime. - Making improper use of the flag and insignia of the UN, as well as the
distinctive emblem of the Geneva Convention.As noted in this report, evidence exists of Hamas making use of medical
ambulances bearing the UN flag and insignia, as well as the protective emblems
of the Geneva Conventions (such as the Red Cross), for the transportation of
terrorists actively participating in hostilities or for seeking refuge in hospitals.Such conduct greatly endangers medical personnel, the sick and wounded, and
also grossly undermines the special protections afforded to the medical and sick
in times of armed conflict, constituting an act especially forbidden under the
Laws of Armed Conflict:An early formulation of this principle, can be found in Article 23(f) of the 1907
Regulations annexed to the Hague Convention IV Respecting the Laws and
Customs of War on Land, under which it is “especially forbidden”, “To make
improper use of a flag of truce, … as well as the distinctive badges of the
Geneva Convention.”Article 44 of the First Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field (1949) also provides
that: “… the emblem of the Red Cross on a white ground … may not be
employed, either in time of peace or in time of war, except to indicate or to
protect the medical units and establishments … “.Similarly, Article 38 of Additional Protocol I to the Geneva Conventions of 1949
and Relating to the Protection of Victims of International Armed Conflict (1977),
states clearly that:“(1) It is prohibited to make improper use of the distinctive emblem of the red
cross, red crescent or … of other emblems, signs or signals provided for by the
Conventions …”.(2) It is prohibited to make use of the distinctive emblem of the United Nations,
except as authorized by that Organization.”Finally, it may be added that breach of this well-established core principle is
also, in certain circumstances, considered to amount to a war crime. - Using children to participate in hostilities
As shown in the report, there is also evidence of Hamas recruiting and regularly
employing the use of children for hostile activities, which has ranged from the
carrying out of suicide attacks, to the digging of tunnels and smuggling of
weapons.Such conduct clearly violates express principles of the Laws of Armed Conflict,
including express prohibitions against allowing children to take part in
hostilities.Thus, as expressly provided for by Article 77(2) of Additional Protocol I to the
Geneva Conventions of 1949 and Relating to the Protection of Victims of
International Armed Conflict (1977):“The Parties to the conflict shall take all feasible measures in order that children
who have not attained the age of fifteen years do not take a direct part in
hostilities and, in particular, they shall refrain from recruiting them into their
armed forces…”Moreover, Article 8(2)(b)(xxvi) of the Rome Statute of the International Criminal
Court (1998) lists the following acts as a war crime:“conscripting or enlisting children under the age of fifteen years into the
national armed forces or using them to participate actively in hostilities”.
Conclusion
In light of all the above, it is clear beyond doubt, that in pursuit of its armed
conflict against Israel and its civilians, the Hamas organization as well as other
terrorist organizations, have systematically and deliberately perpetrated the
most serious breaches of the Laws of Armed Conflict, including the commission
of war crimes.
In particular, Hamas must be called to cease its deliberate attacks against
wholly civilian objects in attempts to maximize damage to civilians and civilian
property, and avoid using civilians and civilian population centers as “human
shields”.
These continuing grave violations of basic principles of the Laws of Armed
Conflict, as carried out by Hamas and other terrorist organizations, demonstrate
their complete disregard for the well-being of civilians on both sides of this
conflict, posing a direct assault, not only on the law, but on humanity itself.
