Review of Hamas Violations of International Law
SIMON WIESENTHAL CENTER
[Attached to 13 August 2014 letter to UN Secretary General Ban-Ki Moon]
http://www.wiesenthal.com/atf/cf/%7B54d385e6-f1b9-4e9f-8e94-890c3e6dd277%7D/LETTER-TO-BAN-KI-MOON_8-13-2014.PDF
1) Hamas' rocket attacks directed at Israel's civilian population centers
deliberately violates the basic principles of distinction. (Additional
Protocol I, arts. 48, 51(2), 52(1).) Any doubt about this is resolved by the
fact that Hamas itself has boasted of its intention to hit population
centres. It is well accepted in customary international law
that -[i]ntentionally directing attacks against the civilian population as
such or against individual civilians not taking part in hostilities
constitutes a war crime. (Rome Statute, art. 8(2)(b)(i))
2) Staging of Attacks From Residential Areas and Protected Sites: The Law of
Armed Conflict not only prohibits targeting an enemy's civilians; it also
requires parties to an armed conflict to distinguish their combatant forces
from their own civilians, and not to base operations in or near civilian
structures, especially protected sites such as schools, medical facilities
and places of worship. As the customary law principle is reflected in
Article 51(7) of Additional Protocol I: I-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
attempts to shield military objectives from attacks or shield, favour or
impede military operations.
3) Use of Civilian Homes and Public Institutions as Bases of Operation - see
(2) for citations.
4) Misuse of Medical Facilities and Ambulances - Any time Hamas uses an
ambulance to transport its fighters it is violating the Law of Armed
Conflict: Under Article 23(f) of the 1907 Regulations annexed to the Hague
Convention IV Respecting the Laws and Customs of War on Land, which reflects
customary international law, it is -especially forbidden ... [t]o make
improper use of a flag of truce, ... as well as the distinctive badges of
the Geneva Convention. Article 44 of the First Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field (1949) also provides that: - ... the emblem of the Red Cross on a
white ground ... may not be employed, either in time of peace or in time of
war, except to indicate or to protect the medical units and
establishments...
5) Booby-trapping of Civilian Areas - see (2) for citations. 6) Blending in
with Civilians and Use of Human Shields - As the ICRC rule states, lilt can
be concluded that the use of human shields requires an intentional
co-location of military objectives and civilians or persons hors de combat
with the specific intent of trying to prevent the targeting of those
military objectives.
7) Exploitation of Children - Hamas has paramilitary summer camps for kids.
There are reports, from this war and previous ones, of children fighting and
being used for tunnel digging. violates the Law of Armed Conflict, including
prohibitions against allowing children to take part in hostilities. As
customary international law is reflected in this regard in Additional
Protocol I, the parties to a conflict must take "all feasible measures" to
ensure that children lido not take a direct part in hostilities and, in
particular, they shall refrain from recruiting them into their armed
forces." (Additional Protocol I, art. 77(2))
8) Interference with Humanitarian Relief Efforts - While Israel kept its end
of humanitarian truces. Hamas used them to shoot rockets into Israel,
including the Kerem Shalom crossing where humanitarian goods are brought
into Gaza. All of these actions violate the Law of Armed Conflict, which
requires parties to allow the entry of humanitarian supplies and to
guarantee their safety. Article 59 of the Fourth Geneva Convention requires
parties in an armed conflict to "permit the free passage of [humanitarian]
consignments and shall guarantee their protection." Article 60 of the same
Convention protects the shipments from being diverted from their intended
purpose, something Hamas has certainly done in the past and is reported to
have done in this conflict as well.
9) Hostage-taking - The Fourth Geneva Conventions, article 34, says flatly
"The taking of hostages is prohibited." This is not an "arrest" as
Israel-haters claim, and this is not a prisoner of war situation as Hamas
has made clear - the purpose of Hamas' hostage-taking falls under the
definition on the International Convention Against the Taking of Hostages:
"Any person who seizes or detains and threatens to kill, to injure or to
continue to detain another person (hereinafter referred to as the "hostage
") in order to compel a third party, namely, a State, an international
intergovernmental organization, a natural or juridical person, or a group of
persons, to do or abstain from doing any act as an explicit or implicit
condition for the release of the hostage commits the offence of taking of
hostages ("hostage-taking ') within the meaning of this Convention.
10) Using the uniform of the enemy - Additional Protocol I prohibits the use
of enemy flags, military emblems, insignia or uniforms "while engaging in
attacks or in order to shield, favour, protect or impede military
operations". [3] Under the Statute of the International Criminal Court,
"making improper use ... of the flag or of the military insignia and uniform
of the enemy" constitutes a war crime in international armed conflicts when
it results in death or serious personal injury. [4] According to some, this
is considered perfidy, a war crime. (h/t Joshua)
11) Violence aimed at spreading terror among the civilian population - Rule
2 of ICRC's Customary IHL is "Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are
prohibited." It quotes Article 51(2) of Additional Protocol I prohibits
"acts or threats of violence the primary purpose of which is to spread
terror among the civilian population". Hamas rockets are aimed not only at
killing civilians, but also at spreading terror among Israelis.
12) Targeting civilian objects, such as airports or nuclear power plants -
Rule 7 of the Customary IHL says "Attacks must not be directed against
civilian objects, "quoting Articles 48 and 52(2)of Additional Protocol I.
13. Indiscriminate attacks - Besides targeting civilians and civilian
objects, Rule 11 of the ICRC CIHL states flatly that "Indiscriminate attacks
are prohibited." By definition, every Qassam rocket attack and most of the
other rocket and mortar attacks are by their very nature indiscriminate. See
also Rule 71, "The use of weapons which are by nature indiscriminate is
prohibited.
14) Proportionality in attack - ICRC's Rule 14 states "Launching an 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." Rocket attacks against civilians have zero
military advantage, so by definition they are disproportionate to their
military advantage.
See also Rule 18: "Each party to the conflict must do everything feasible to
assess whether the attack 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.
15) Advance Warning - Rule 20 of the ICRC CIHL states "Each party to the
conflict must give effective advance warning of attacks which may affect the
civilian population, unless circumstances do not permit." Given that Hamas
has used the media and SMS calls to threaten Israelis, it is clear that they
have the ability to warn before every rocket attack. Their failure to do so
is a violation of IHL.
16) Protecting civilians - Rule 22 of the ICRC Customary IHL states, "The
parties to the conflict must take all feasible precautions to protect the
civilian population and civilian objects under their control against the
effects of attacks." Hamas not only has failed to protect civilians in Gaza
by building bomb shelters, they have deliberately put civilians in harm's
way.
17) Attacking medical units - Rule 28 states, "Medical units exclusively
assigned to medical purposes must be respected and protected in all
circumstances." Hamas has shot mortars at the Israeli field hospital, set up
for Gazans, near the Erez crossing.
18) Protection of Journalists - Hamas has threatened journalists, implicitly
and explicitly, accusing some of being spies and sometimes not allowing them
to leave Gaza, making them effectively hostages. Rule 34 states "Civilian
journalists engaged in professional missions in areas of armed conflict must
be respected and protected as long as they are not taking a direct part in
hostilities.
19) Mistreating the dead. Rule 113 says, "Each party to the conflict must
take all possible measures to prevent the dead from being despoiled.
Mutilation of dead bodies is prohibited." Hamas has shown off an alleged
chip cut out from the (presumably) dead body of Shaul Oron.
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