January 14, 2009.
The fighting tactics and ideology of Hamas are a “case study par excellence” of
a systematic violation of international humanitarian law, according to a leading
expert in international law who visited the Gaza periphery region on Tuesday.
There is “almost no comparable example” anywhere in today’s world of a group
that so systematically violates international agreements related to armed
conflict, Irwin Cotler – a former Canadian justice minister, MP and law professor
at Montreal’s McGill University – told The Jerusalem Post on Tuesday.
Hamas is committing at least six violations of international law, Cotler
explained.
“First, the deliberate targeting of civilians is in and of itself a war crime,”
he noted, referring to the Hamas rockets fired at southern towns for eight
years.
“A second war crime is when Hamas attacks civilian areas and
civilian structures, whether it be an apartment building, a mosque or a hospital,
in order to be immune from a response from Israel,” he went on. “Civilians are
protected persons, and civilian areas are protected areas. Any use of a civilian
infrastructure to launch bombs is itself a war crime.”
That Hamas bears legal responsibility for the harm to civilians in areas
from which it fires is enshrined throughout international law, he said: “In the
general principles of customs binding on nations, in the specific international
law of armed conflict international humanitarian law, in the Fourth
Geneva Convention, in decisions of the International Court of Justice and the
international criminal tribunals for the former Yugoslavia and Rwanda – it’s all
set out there.”
Third, he explained, “the misuse and abuse of humanitarian symbols for
purposes of launching attacks is called the perfidy principle. For example, using
an ambulance to transport fighters or weapons or disguising oneself as a doctor
in a hospital, or using a UN logo or flag, are war crimes.”
The fourth violation, “of which little has been made, is the prohibition in the
Fourth Geneva Convention and international jurisprudence against the direct
and public incitement to genocide. The Hamas covenant itself is a standing
incitement to genocide. just before this fighting started, I saw
Hamas leaders on television referring to Israel and Jews as the sons of apes
and pigs.”
The fifth crime relates to the scope of the attack on civilians, which upgrades
the violation to a crime against humanity. According to Cotler, “when you
deliberately hit civilians not infrequently but in a systematic, widespread attack,
that’s defined in the treaty of the International Criminal Court and international
humanitarian law as a crime against humanity.”
The final war crime for which Hamas is responsible is the recruitment of
children into armed conflict.
“Hamas is a case study of each of these six categories of war crime,” said
Cotler. Unfortunately, the international community “has been minimizing the
manner in which Hamas has engaged in consistent mass-violation of
international humanitarian law.”
Cotler said specifically delineating Hamas’s violations was important in that it
would place the onus of responsibility for the civilian tragedy in Gaza on the
proper party.
“The consequences are tragic in human terms,” he said.
“Clearly what is happening in Gaza is a tragedy. But there has to be moral and
legal clarity as to responsibility. When Israel responds and civilians are killed
because Israel is targeting an area from which rockets were launched, then it is
Hamas which bears responsibility for the deaths, and not Israel, according to
international law.”
