The "Middle East and Terrorism" Blog was created in order to supply information about the implication of Arab countries and Iran in terrorism all over the world. Most of the articles in the blog are the result of objective scientific research or articles written by senior journalists.
From the Ethics of the Fathers: "He [Rabbi Tarfon] used to say, it is not incumbent upon you to complete the task, but you are not exempt from undertaking it."
Crystallizing the Jewish State's right to self-defense.
Seeming to give credence to Orwell’s observation that “Everyone
believes in the atrocities of the enemy and disbelieves in those of his
own side, without ever bothering to examine the evidence,” the world’s
attention has turned once again to the clash between Hamas and Israel,
as the Jewish state launched its defensive air offensive into Gaza to
suppress a deadly barrage of 4360 rockets that killed 10 civilians in
Israel and injured 330 others. And, predictably, as the body count rose
on the Palestinian side, the moral arbiters of acceptable political
behavior began condemning the Jewish state for its perceived abuses in
executing its national self-defense.
Forgetting that Israel’s current campaign was necessitated by
ceaseless rocket and mortar assaults on its southern towns from
Hamas-controlled Gaza, international leaders and diplomats initiated
their moral hectoring of Israel as it attempted to shield its citizens
from harm. Five so-called experts from The UN’s Office of the High
Commissioner for Human Rights (OHCHR), led by Special Rapporteur Michael
Lynk, released a statement which suggested that “This most recent
violence has a depressingly familiar pattern to it.” And what was the
familiar tragedy? Not that Hamas had tried to murder Israeli civilians
with no justification, but that “Israel and Palestinian armed groups in
Gaza exchange missiles and rockets following dispossession and the
denial of rights in the occupied Palestinian territory, with
Israel’s far greater firepower inflicting far higher death tolls and
injuries and a much larger scale of property destruction.” [Emphasis added.]
In addressing a special session of the 47-member UN Human Rights
Council, UN High Commissioner for Human Rights Michelle Bachelet was
similarly condemnatory of Israel’s military behavior. While begrudgingly
admitting that Hamas’s "indiscriminate" firing of thousands of rockets
constitutes “a clear violation of international humanitarian law,”
Israel’s response was equally questionable, especially the targeted
strikes on buildings that were said to house terrorists and armaments.
"Despite Israel’s claims that many of these buildings were hosting armed
groups or being used for military purposes,” Bachelet noted, “we have
not seen evidence in this regard." And then, in creating a moral
equivalence that is unsurprising when Israel is involved, she solemnly
announced that Israel, too, may be condemned for its military
misbehavior, that "If found to be indiscriminate and disproportionate,” Israel’s defensive “attacks might constitute war crimes." [Emphasis added.]
The words “indiscriminate” and “disproportionate” are the most
insidious refrains, uttered only when Israel’s enemies are killed
(certainly not when Jews are murdered), and suggesting that Israel’s
military response is too aggressive, that the force and effect of the
sorties into Gaza are beyond what is permitted under human rights law
and the rules of war.
The remonstrations of its many and far-flung critics aside, Israel
is not the international outlaw here, but a victim now involved in a
defensive countermeasure to terrorism against its citizenry. In fact,
Justus Reid Weiner and Dr. Avi Bell, two legal scholars at the Jerusalem
Center for Public Affairs, have noted that Hamas’s shelling of civilian
targets within Israel’s borders—the direct cause of the current
conflict—clearly violates international law and requires a military
response from Israel, even though world observers have been oddly silent
on the Palestinian incitement that is the cause of the present clashes.
“The Palestinian attacks,” they wrote, “violate one of the most
basic rules of international humanitarian law, the rule of distinction,
which requires combatants to aim all their attacks at legitimate targets
– enemy combatants or objects that contribute to enemy military
actions. Violations of the rule of distinction – attacks deliberately
aimed at civilians or protected objects as such – are war crimes,”
exactly what Hamas has been committing with its relentless rocket
assaults. Hamas militants not only commit a war crime each time they lob
a rocket or mortar into Israel from Gaza by virtue of the fact that the
targets of those attacks are specifically and purposely civilian, not
military, assets—a violation of the “distinction” rule—but also, in not
wearing military uniforms and often posing as civilians, Hamas
terrorists are also committing another crime, that of perfidy.
Article 48 of Additional Protocol I of the Geneva Conventions of
1949 is very clear about this prohibited behavior of combatants, stating
that “[i]n 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.” Since the
rockets Hamas aims at southern Israeli towns are launched randomly into
civilian enclaves and lack the technical sophistication to reliably be
aimed at military targets even if that was Hamas’s actual intention,
each of the nearly 20,000 rockets that have come into Israel from Gaza
since 2005 represents both a casus belli and war crimes.
“It is a central principle of just war theory,” observed Dr. Michael
Walzer, Professor Emeritus at the Institute for Advanced Study, “that
the self-defense of a people or a country cannot be made morally
impossible.” Israel faces that precise dilemma every time it is forced
to suppress Palestinian aggression and protect its populace from
unending rocket assaults, particularly since its actions are widely and
almost immediately denounced as excessive, disproportionate, and in
violation of international law. Perceived as having unjustly
dispossessed the Palestinians and accused of still occupying both the
West Bank but also Gaza (and holding the latter under siege), and
collectively punishing the Palestinian Arabs living there, Israel has
been stripped of its moral standing in the community of nations and so
its attempts at self-defense are at best tolerated.
Rather than serving as a deterrent against attacks of terrorists,
Israel’s military strength and capabilities are instead looked at as an
unfair advantage in the asymmetrical war in which it finds itself. Few
leaders in the West and none in the Arab world ever condemn Hamas for
its chronic, unlawful terroristic behavior toward Israel, but the moment
Israel undertakes military action it receives strict warnings for
restraint, censure for its success in neutralizing Hamas strongholds,
and eventual condemnation for the inevitable deaths of civilians—the
collateral damage that is the tragic byproduct of conflicts fought in
neighborhoods rather than battlefields.
Israel, which is promiscuously condemned for committing “crimes
against humanity” and human rights violations, not only waited years
before responding to Palestinian terrorism, but then, in one of the most
populous areas on earth, scrupulously followed the rule of distinction
by precisely targeting Hamas terrorists and infrastructure, with
minimal, though still unfortunate, collateral damage to the Gaza
civilian population – a feat made all the more difficult by Hamas’s
insidious tactic of embedding rocket launchers and armament stores
within homes, apartment buildings, schools, and mosques in residential
neighborhoods.
Combat in the crowded streets and alleys of Gaza obviously makes
warfare more difficult for Israel, especially in its attempt to minimize
civilian casualties while maximizing the suppression of enemy fire and
attempting to neutralize Hamas’s ability to continue to pose a threat in
the future. Since, as mentioned, Hamas’s terrorists do not wear
identifying uniforms, and, additionally, embed themselves within
civilian environments, Israel’s effort to maintain “distinction”— that
is, scrupulously determining who is a legitimate military target and who
is a civilian— is understandably challenging and dangerous.
And, knowing that the world community is apt to be harsh about any
civilian deaths that result from Israel’s offensive—even though it Hamas
who has created the circumstances by which those civilians will and
have perished—Israel has resorted to extraordinary measures to avoid the
death of non-combatants, including “knocking” on roofs to warm of
imminent bombardment, distributing flyers, and using other warning
techniques, all of which compromise Israel’s strategic advantage while
helping to minimize civilian deaths. Even so, when the inevitable
Palestinian civilian deaths occur (which seem to be a welcomed part of
Hamas’s cognitive war against Israel), Israel is accused of violating
the rule of “proportionality,” the other aspect of warfare which
international law requires that prohibits a military response that
causes more civilian deaths than would be considered necessary in
achieving a set military objective.
In fact, collateral damage – the accidental killing of civilians
during military conflicts – is itself allowed by international law,
provided the actions that caused the civilian deaths are not, according
to Weiner and Bell, excessive in relation to the military need. But the
fact that deaths occur in civilian populations – even what might be
perceived as excessive deaths – are not in and of themselves indicative
of violations of international law, and, says Weiner and Bell, “if a
state, like Israel, is facing aggression, then proportionality addresses
whether force was specifically used by Israel to bring an end to the
armed attack against it.”
The practice of Hamas of using human shields, as well as storing
munitions and weaponry in civilian neighborhoods and non-military
buildings, also absolves Israel from some of the proportionality
requirements, since the use of human shields and the perfidy of Hamas in
the first place puts the fault for civilian deaths on it, rather than
Israel. Israel indiscriminately pummeling Gaza with bombardment from the
air—with many resulting civilian deaths—would violate the rule of
proportionality and could be considered a war crime; Israel responding
to rocket fire from an apartment building and, in the process, killing
civilians (even a large number of them) who were in the building with
Hamas combatants is allowed, as long as Israel’s intent was to achieve a
military objective and not just to exact revenge or capriciously murder
civilians.
Even errors which lead to the death of civilians are acceptable, as
long as the military purpose was the motivating factor in the assault,
since, as Jonathan F. Keiler, a former captain in the Army’s
Judge-Advocate General Corps, noted, “we do not determine criminality
based on outcome, but intent.”
Proportionality also does not require that the number of
deaths—either of Hamas militants or Palestinian civilians—be equal to
the number of deaths suffered by Israel, or to damage done to Israeli
infrastructure or military targets. One moral challenge in asymmetrical
war is that observers in the world community intuitively feel that
Israel’s disproportionate military strength makes the conflict
fundamentally “unfair,” that because it is technologically and
logistically able to exact more harm on the Palestinians, Israel should
restrain itself to minimize enemy casualties. That may be a compelling
emotional response, but it is, of course, not a legal or moral argument
with any weight. In fact, it is precisely because of Israel’s military
superiority that a rational adversary would have been deterred from
attacking in the first place.
The fact that Hamas chose to challenge an adversary with
disproportionate military capability indicates that the decision was
either irrational or some type of collective death wish; in either
instance, the Palestinians, and the world at large, cannot now expect
Israel not to use every means possible to protect its citizenry from
both immediate and future assaults by genocidal terrorists who wish to
murder Jews and destroy the Jewish state.
No nation is required to enter a suicide pact with its enemies, and
no nation can be expected to wait until enemy rockets successfully reach
an apartment building or school, forcing Israel to play, in the words
of Harvard law professor Alan Dershowitz, “Russian roulette with its
children.”
Indeed, the very tactics of terrorism force nations to look at how
sovereign states defend themselves against rogue actors. “Modern terror
organizations” like Hamas, noted Professor Boaz Ganor, founder and
executive director of the International Institute for Counter-Terrorism
in Herzliya, “do not see themselves as being obligated to humanitarian
international law . . . From this perspective, the states dealing with
such terrorists find themselves being Gulliver, with their hands and
legs bound by morality and by modern combat principles, fighting dwarfs
that attack without pause and in violation of every legal or moral
principle.”
Israel, once again, is faced with what seems to be a morally impossible self-defense.
Richard L. Cravatts, Ph.D., a Freedom Center Journalism Fellow in Academic Free
Speech and President Emeritus of Scholars for Peace in the Middle East,
is the author ofDispatches From the Campus War Against Israel and Jews.
Top cybersecurity officials warned Wednesday that the U.S. can expect to see more ransomware attacks as the nation reels from recent hits on U.S interests, including meat supplies and fuel.
Chris
Butera, head of Threat Hunting for the Cybersecurity and Infrastructure
Security Agency (CISA), said ransomware has "continued to increase,
especially in our state, local governments, as well as our critical
instructor space."
"The
ransomware actors have become more brazen," he said during a virtual
summit hosted by Advanced Technology Academic Research Wednesday.
"They've started to exfiltrate data and try to extort payments."
"I
do think we will continue to see that happen," Butera said, adding
cybersecurity is a "primary priority" for the U.S. government.
Ransomware
attacks have increasingly targeted American interests, most recently
shutting down U.S. meat plants affiliated with the world’s largest
meatpacker, Brazil-based JBS, earlier this week.
Butera said the
government does not encourage companies to pay out ransoms on
cyber-attacks but said the administration "understands" if private
companies disagree.
"The government does not advocate paying
ransoms," Butera said. "But we do understand that it is a significant,
difficult decision for some of these organizations when they are put
under the gun to try to manage their business operations during these
times."
The Biden administration’s stance on handling ransomware
aligns with the government’s traditional attitude when it comes to
paying ransom to any criminal or terrorist group.
"This is a
continuation of U.S. policy," Resident Fellow for the American
Enterprise Institute (AEI) Klon Kitchen told Fox News. "We have always
encouraged companies not to pay ransom, because it encourages future
attacks."
Kitchen pointed to the monumental consequences private
companies face when targeted by ransomware, including significant
financial loss and potentially devastating shortages for consumers.
But
according to Kitchen, there are two major problems that arise once a
ransom is paid. There is no guarantee a ransomer will unlock what they
are holding hostage once payment is submitted, and the payment sets a
precedent that could encourage other groups to engage in ransomware.
"U.S.
policy needs to more directly engage with ransomware," the technology
and national security-focused fellow urged. "We need to change the
political calculus of foreign governments who allow ransomware attackers
to operate with impunity within their borders."
The White House
has attributed the attacks on JBS and the East Coast’s Colonial pipeline
– which struck the largest U.S. fuel pipeline last month – to criminal
organizations within Russia.
Biden is expected to address the
attacks with Russian President Vladimir Putin in the June 16 summit in
Geneva, White House officials announced Wednesday.
But the president has so far not said the Kremlin has had any affiliation with the ransomware attacks.
"It’s
time for the United States to start putting heads on spikes when it
comes to confronting and dismantling ransomware groups," Kitchen said.
"If
President Biden does not confront Vladimir Putin about the ransomware
groups perpetrating from within Russia, he will be failing in his duty
to protect the United States from these types of attacks," he added.
Fox News' Jake Gibson and Matthew London contributed to this report.
The deliberate and cynical use by Hamas and Islamic Jihad of their own civilians as human shields, as well as their use of mosques, hospitals, schools, and private houses as weapons storage facilities and firing platforms, are -- war crimes and violations of international humanitarian law.
Rockets from Gaza, on the right, are seen in the night sky fired towards
southern Israel from Beit Lahiya in the northern Gaza Strip on May 14,
2021, while Iron Dome interceptor missiles, on the left, rise to
intercept them. (Anas Baba/AFP via Getty Images)
Institute for Contemporary Affairs
Founded jointly with the Wechsler Family Foundation
No. 643 June 3, 2021
This article is part of the forthcoming Jerusalem Center research report: The Gaza War 2021: The Iranian and Hamas Attack on Israel.
The Israel Defense Forces have no policy of deliberately targeting
civilians or civilian property and make every effort to give effective
advance warning of impending strikes that could potentially affect the
civilian population.
The success of Israel’s “Iron Dome” anti-missile defense system in
reducing the threat of over 4,000 rockets fired by Hamas and Palestinian
Islamic Jihad in May 2021 cannot in any way reduce the extent of the
Palestinians’ criminal liability for severe war crimes in willfully and
deliberately directing massive barrages of missiles toward civilian
centers in Israel.
The deliberate and cynical use by Hamas and Islamic Jihad of their
own civilians as human shields, as well as their use of mosques,
hospitals, schools, and private houses as weapons storage facilities and
firing platforms, are no less severe war crimes and violations of
international humanitarian law.
The construction of tactical tunnels beneath urban civilian areas,
hospitals, public facilities, and urban roads are also war crimes and
grave violations of international humanitarian law.
The indiscriminate targeting of Israeli cities and civilians
practiced by Hamas violates the rule of distinction in international
law, which requires combatants to limit attacks to legitimate military
targets.
Moreover, advocating a religious holy war aimed at creating a
regional Islamic entity encompassing the whole of the territory of
Israel appears to contravene the provisions of the 1948 Convention on
the Prevention of Genocide.
For all such crimes, Hamas and PIJ leaders and commanders are accountable and prosecutable under international law.
Introduction
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.
A Gaza teenager in a Hamas summer camp.
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:
to urgently establish an ongoing independent, international
commission of inquiry to investigate in the Occupied Palestinian
Territory, including East Jerusalem, and in Israel all alleged
violations of international humanitarian law and all alleged violations
and abuses of international human rights law leading up to and since
April 13, 2021, and all underlying root causes of recurrent tensions,
instability, and protraction of conflict, including systematic
discrimination and repression based on national, ethnic, racial or
religious identity. (A/HRC/S-30/L.1)
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.3
In its declaration dated May 17, 2021, the Organization of American
States, in qualifying Hamas as a terrorist organization, stated:
The recent attacks launched by Hamas against the Israeli civilian
population undoubtedly constitute attacks of a terrorist nature. Their
violence and the objectives they pursue clearly have this
characteristic.
Hamas’s terrorist aggression is unlimited and always seeks civilian
victims, seeks to escalate conflict dynamics and armed actions, as well
as sowing terror among innocent populations, be they Israeli or
Palestinian.
The immoral and unworthy use of children and women as human shields,
as well as the militarization of residential areas, constitute in
themselves acts that deserve the most absolute repudiation and
condemnation.
The initiation of attacks of this nature against a country with a
clear terrorist objective of its civilian population makes the
invocation of the principle of legitimate defense by Israel essential.
The Hamas attacks constitute an attack against the peace and security
of Israel and the region and make it imperative to categorize Hamas as a
terrorist organization for the General Secretariat of the Organization
of American States (OAS).
Hamas’ and PIJ’s 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 by using 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, 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 several resolutions
adopted by the UN Security Council, especially following the September
11, 2001, attacks against the United States.5
In its Resolution 1269 (1999),6 the Council, in the first operative paragraph:
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 whoever 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:
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 constitutes offenses 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 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” 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
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) 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.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
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.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 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:
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.
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:
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, 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.29
Claims Being Made against Israel
Collective Punishment
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.30
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.31
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.
People
stand on a collapsed Hamas military tunnel beneath a Gaza street after
an Israeli air strike in Gaza City, May 13, 2021. (AP Photo/Hatem Moussa)
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 Protocol32 specifically refers to the obligation to limit attacks to military objectives, defined as –
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.
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.33, 34
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.35
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.
An Israeli airstrike destroys a high-rise building in Gaza City, Gaza Strip, that housed media outlets including The Associated Press and Al Jazeera. (Nidal Alwaheidi / SOPA Images/Sipa USA via AP Images)
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.36
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.”37
Disproportionate Force
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.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, 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.
In Conclusion
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.
“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.”
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 “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 “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 anti-missile 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.’”
“Measures to Eliminate International Terrorism – Report of the Sixth Committee,” United Nations, November 25, 1997, http://www.un.org/law/cod/terroris.htm
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).”
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,
2014, http://www.terrorism-info.org.il/Data/articles/Art_20677/E_116_14_1313703276.pdf
Louis-Philippe Rouillard, “The CarolineCase: 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
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.
