The latest Hamas-Israel confrontation -- Some pertinent legal points
By Alan Baker
Much is being written and spoken about in the international media and by leaders in the international community regarding the recent violence between the Hamas terror entity in the Gaza Strip and Israel, especially given the graphic pictures displayed by the 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, aligns it integrally with the Moslem Brotherhood and clearly identifies it as a terrorist entity. According to Hamas' ideology, Israel has no place in the world and its 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 recent April 2014 unification accord with the head of the PLO Mahmoud Abbas (Abu Mazen), 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, the European Union, Jordan, Egypt, Israel and Japan.
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 missiles, suicide bombings, murder 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 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.
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.
In its resolution 1269 (1999)6 the Council, in the first operative paragraph of the resolution:
More specifically, United Nations Security Council resolution 1566, dated October 2004, passed under Chapter VII of the UN Charter, states as follows:
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, the 1997 International Convention for the Suppression of Terrorist Bombings, determines:
Similarly, in this context the operative provisions of the unanimously supported 1994 "UN Declaration on Measures to Eliminate International Terrorism" are no less relevant:
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 towns, villages 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) 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.
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 towns, terrorizing and jeopardizing the lives of thousands 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" jurist Sigall Horowitz states the following :
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 Israeli towns and Villages and Civilians with rockets
a. 1907 Hague Regulations19:
Article 25: "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited."
b. 1977 Protocol I to the Geneva Conventions:
Article 48: "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".
Article 51(2): "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".
Article 51(4): "Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction."
Article 57 requires that civilian population, civilians and civilian objects be spared in the conduct of military operations, and that all feasible precautions be taken in order to avoid and minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, and the giving of effective advance warning of attacks.
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 deliberately generate Israeli military action against such emplacements and thereby endanger 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 Protocols to the Geneva Convention states:
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, 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".
Israel's right to invoke the Article 51 right to self-defense vis-à-vis terrorist attacks against its towns and villages was curiously denied by the International Court of Justice (ICJ) in its 2004 Advisory Opinion on the Israeli Security Fence case on the grounds that the threat can only come from another "state." This strange conclusion has been rejected both by judges of the court as well as international jurists.
As stated by Judge Higgins (UK):
In a similar vein, Judge Buergenthal (U.S.) criticized the above conclusion as being "dubious" and stated:
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) 30, adopted only one day after the 11 September 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) 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.
Claims Being Made against Israel Collective Punishment
The claim that Israel is collectively punishing the population of the Gaza Strip, enunciated by the UK Deputy Prime Minister Nick Clegg, is both wrong and based on misleading legal assumptions. As stated above, Israel's actions are directed towards 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," 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.
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 towns and villages, 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.
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, command, control, and communication centers.
The use of houses, homes and other residential structures for military purposes endangers them and render them as legitimate military targets under international law.
Article 52(2) of the First Geneva Protocol 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; 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.
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.
The Claim of Disproportionate Force/Casualties
Allegations in the international media and by international organizations and some governmental representatives 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.
A monograph entitled "Applying the Principle of Proportionality in Combat Operations," published by of the Oxford Institute for Ethics, Law and Armed conflict, states:
The tragic and regrettable fact that there are more civilian casualties and property damage within the Gaza Strip than there are 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 is committing 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 prevents 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 has developed extensive framework of shelters as well as its "Iron Dome" anti-missile defensive system, cannot be used as 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 are killed than Israelis. 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 protected 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 present one, 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)
Amongst 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 allegation 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 paper 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.
This paper is intended to place the current Hamas-Israel conflict within the proportions of international law and practice, with a view to dispelling some of the media hype and exaggeration, and the selective and biased statements and allegations being made against Israel.
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 is 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.
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, 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.