The legal war: Hamas’ war crimes and Israel’s right to self-defense
By Amb. Alan Baker
The Hamas and Palestinian Islamic Jihad rocket attacks during the May 2021 hostilities, in which the two terror groups proudly boasted of firing over 4,300 rockets and other missiles against Israel’s towns and other civilian centers, generated an outpouring of international consternation and condemnation.
Israel’s defensive “Iron Dome” anti-missile defense system succeeded in intercepting over 90% of the incoming missiles. Had those rockets reached their civilian targets in towns throughout Israel, one can only imagine the number of fatalities, casualties, human suffering, and material damage that the willful, deliberate, and indiscriminate firing of over 4,000 rockets could have caused.
The success of Israel’s “Iron Dome” system in reducing and neutralizing the missile threat cannot in any way minimize or reduce the extent of Hamas’ criminal liability for severe war crimes in willfully and deliberately directing such massive barrages of missiles towards civilian centers in Israel.
The deliberate and cynical abuse and exposure by Hamas and Islamic Jihad of their own civilians, as human shields, as well as the irresponsible, criminal usage of mosques, hospitals, schools, and private houses as weapons storage facilities, weapons emplacement zones, and firing platforms, are no less severe war crimes and violations of international humanitarian law. The mobilization of children and their use for armed conflict complements the war crimes committed by Hamas and its colleagues.
The construction and use of the extensive underground web of tactical tunnels beneath urban civilian areas, hospitals, public facilities, and urban roads, thereby endangering an entire civilian population living and conducting their everyday existence above such a web of strategic, military tunnels, are war crimes and grave violations of international humanitarian law.
Hamas and PIJ Leaders Are Prosecutable for War Crimes
For all such crimes, Hamas and PIJ leaders and commanders are accountable and prosecutable.
Much has been written and spoken in the international media and by leaders in the international community regarding the violence between the Hamas terror entity in the Gaza Strip and Israel, especially given the graphic pictures displayed by various media sources.
After an overall acknowledgment by the international community that Israel has the right to defend itself and its civilians against the barrage of rockets, it did not take long for the routine wave of international criticism and condemnation of Israel to materialize and grab the international headlines.
This is particularly the case with a resolution by the UN Human Rights Council, initiated by Pakistan and the Palestinian leadership, dated May 27, 2021, which decided:
Given all of the above, there are pertinent legal points that do not always figure in this barrage of selective, often inaccurate, and even malicious commentary, criticism, and condemnation.
The following points summarize some of the legal aspects of this situation.
The Inherent Character of Hamas as a Terrorist Entity
As set out in its national Charter and borne out by its actions of indiscriminate terror directed against Israeli towns, villages, and citizens, Hamas’s ideological foundation clearly defines its character as a terrorist entity. This is reflected in the fact that Hamas has been formally outlawed in major states.
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; 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 failed 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, Japan, and the Organization of American States, an international coalition of 35 countries in North and South America.
In its declaration dated May 17, 2021, the Organization of American States, in qualifying Hamas as a terrorist organization, stated:
Hamas’ and PIJ’s declared modus operandi advocates and espouses terror against Israel as the means to achieve its ends:
Terrorism in International Law
International law and practice, outlaw the use of terror for whatever reason or justification. This is confirmed in several resolutions adopted by the UN Security Council, especially following the September 11, 2001, attacks against the United States.
In its Resolution 1269 (1999), the Council, in the first operative paragraph:
More specifically, United Nations Security Council Resolution 1566, dated October 2004, passed under Chapter VII of the UN Charter:
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.
One such UN Convention is the 1997 International Convention for the Suppression of Terrorist Bombings, which criminalizes the targeting by explosive devices of 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” 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.
International Crimes and Criminal Responsibility by Hamas
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.
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,” appear to contravene the provisions of the 1948 Convention on the Prevention of Genocide.
The 1998 Rome Statute that founded the International Criminal Court (ICC) established 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.
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:
Regarding the individual criminal responsibility of Hamas members, Horowitz adds:
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:
The 1977 Protocol I to the Geneva Conventions20 includes:
Using Civilians as Human Shields
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 generate Israeli military action against such emplacements deliberately, thereby endangering Palestinian civilians, constitutes a war crime.
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.
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.
Article 51(7) of the 1977 Protocol I 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) of the Protocol requires avoiding locating military objectives within or near densely populated areas.
The following provisions of the ICC Statute refer to such crimes:
Abuse of Children in Violation of International Humanitarian Law
From the fundamental viewpoint of international humanitarian law and accepted norms of humanity, using civilians, and especially women and children, as human shields to conceal the presence of Hamas terrorists and terror infrastructure, as well as deliberately displaying children during combat activities, are cynical and cruel violations and abuse of such women and children.
This is in violation of several international treaties protecting children and prohibiting their involvement in warfare, to which the “state of Palestine” has become a party and thus committed to implementing.
Israel’s Right to Self-Defense
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.
In conventional international law as set out in Article 51 of the UN Charter:
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.”
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, and following the September 11 attacks, the Council “reaffirmed the inherent right of individual or collective self-defense as recognized by the Charter of the United Nations as reiterated in Resolution 1368 (2001).”
More recently, marking the 20th anniversary of the adoption of resolution 1373 and the establishment of the UN’s Counter Terrorism Committee (CTC), the President of the Security Council, in an official statement dated January 12, 2021, reaffirmed the central provisions of Resolution 1373 (2001), including:
The Security Council reaffirms that terrorism in all forms and manifestations continues to constitute one of the most serious threats to international peace and security and that any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomsoever committed.
None of these resolutions and declarations imposed any limit on their application to terrorist attacks by state actors only, nor was an assumption to that effect implicit in these resolutions.
Claims Being Made against Israel
The claim that Israel is collectively punishing the population of the Gaza Strip is flawed as it is based on misleading legal assumptions.
Israel’s actions in self-defense are directed toward one strategic and tactical purpose – to halt the indiscriminate rocket fire and the use of infiltration tunnels to carry out acts of terror against Israel’s civilian population. There is no strategy of collectively punishing the people of the Gaza Strip.
However, Hamas’ and PIJ’s deliberate and systematic exposure and endangering of civilians in populated areas in the Gaza Strip by locating rocket emplacements, tactical military installations, tunnels, and ammunition stores in close proximity to homes, schools, and hospitals, and within high-rise residential and commercial buildings, are flagrant and willful violations of the norms of international humanitarian law.
Willfully exposing civilians to the danger of being harmed by Israel’s responses to rocket attacks constitutes a cynical manipulation of international humanitarian law through collectively punishing Palestinian residents of the Gaza Strip.
Deliberate Targeting of Residences
Israel has been falsely accused by the United Nations and others of deliberately and willfully targeting residences.
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 tunnels beneath 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 or excavating tunnels beneath them endanger the structures and render 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 Protocol specifically refers to the obligation to limit attacks to military objectives, defined as –
To accurately determine military targets, the IDF employs advanced methods, including multiple levels of intelligence, extensive prior training provided to operational commanders, as well as ongoing legal monitoring of the actions of commanders in the field.
Even when a structure is considered by all relevant legal criteria to be a legitimate military target because of its use for purposes of planning acts of terror, storing weapons, hiding tunnels, or serving as rocket emplacements, the Israeli forces minimize potential harm to the surrounding civilian population through real-time visual surveillance 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.
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.
The Israeli concern for Gazan civilians was acknowledged by the Director of the UNRWA office in Gaza, much to Hamas’ anger. Matthias Schmale told an Israeli television station on May 22, 2021, “There is a huge sophistication in the way the Israeli military struck over the last 11 days…. [The IDF did] not hit, with some exceptions, civilian targets, but the viciousness and ferocity of the strikes was heavily felt…. So the precision was there, but there was an unacceptable and unbearable loss of life on the civilian side,” he said.
Israel’s Destruction of the Al-Jala’a Building. News Agencies’ Stockholm Syndrome?
On May 15, 2021, the IDF attacked the Al-Jala’a building in Gaza City, which, in addition to housing the offices of international media agencies such as AP and Al-Jazeera, also housed Hamas and PIJ military intelligence-gathering installations that occupied three floors of the building. Hamas maintained a military intelligence facility in the building and used it as a base for equipment used to try to jam Israeli communications and satellite navigation systems.
Hamas and PIJ utilized the presence of international media headquarters in the building as a cover for their military activities. As such, they prejudiced and endangered the civilian nature of the building, rendering it a legitimate military target.
The Hamas military intelligence technological research and development compound situated in the building was responsible for coordinating and guiding terrorist activities against Israel. The unit, located on three floors of the building, operated offensive cyber or SIGINT (signal) capabilities, while the antennas on the roof of the building were utilized by this unit to carry out its operations against Israeli targets, both civilian and military.
The attack on the building was designed to neutralize Hamas’ military intelligence gathering capabilities that constituted a clear and imminent danger against Israeli civilians and was thus necessary to attack the building, destroying Hamas’ technological military infrastructure, even at the cost of evacuating the offices of AP and Al-Jazeera.
The news agencies objected to the Israeli attack and denied that they had any knowledge of Hamas’ presence. Israel’s Chief of Staff, Lt. Gen. Aviv Kochavi, reportedly told Israeli press, “that AP journalists drank coffee every morning in the cafeteria on the entrance floor of the building with Hamas electronics experts, whether they knew it or not.”
The allegations in the international media and by international organizations and some governmental representatives that Israel’s actions are “disproportionate” and violate international law are 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.
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, tunnels, and infrastructures amid uninvolved Palestinian civilians.
Similarly, the fact that Hamas prevented civilian access to secure sections of its underground web of tunnels and bomb shelters, reserving them for its military commanders, movement of fighters, and for storage of weaponry, 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 and underhand phenomenon by the international media is the so-called “body-count” comparison, which repeats itself every time there is violence between Israel and Hamas. This sad phenomenon is exemplified by claiming that there is disproportionality in the fact that more Palestinians were killed than Israelis.40 The absurdity of such a comparison is that it intimates that more Israeli casualties would be preferable to “even-out” the count.
This absurdity is all the more inane when 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, even more so when it is clear that many of the Gaza casualties are the result of hundreds of Hamas rockets that malfunctioned and fell short on Gazan civilian areas.
As in any armed conflict, 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 stringent policies of investigating such instances, and in cases of alleged war crimes or negligence, takes 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.
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 under 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.
Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.