Law professor: Hamas is a war crimes 'case study'
Haviv Rettig Gur , THE JERUSALEM POST Jan. 13, 2009
The fighting tactics and ideology of Hamas are a "case study par excellence"
of a systematic violation of international humanitarian law, according to a
leading expert in international law who visited the Gaza periphery region on
There is "almost no comparable example" anywhere in today's world of a group
that so systematically violates international agreements related to armed
conflict, Irwin Cotler - a former Canadian justice minister, MP and law
professor at Montreal's McGill University - told The Jerusalem Post on
Hamas is committing at least six violations of international law, Cotler
"First, the deliberate targeting of civilians is in and of itself a war
crime," he noted, referring to the Hamas rockets fired at southern towns for
"A second war crime is when Hamas attacks [from within] civilian areas and
civilian structures, whether it be an apartment building, a mosque or a
hospital, in order to be immune from a response from Israel," he went on.
"Civilians are protected persons, and civilian areas are protected areas.
Any use of a civilian infrastructure to launch bombs is itself a war crime."
That Hamas bears legal responsibility for the harm to civilians in areas
from which it fires is enshrined throughout international law, he said: "In
the general principles of customs binding on nations, in the specific
international law of armed conflict [also called] international humanitarian
law, in the Fourth Geneva Convention, in decisions of the International
Court of Justice and the international criminal tribunals for the former
Yugoslavia and Rwanda - it's all set out there."
Third, he explained, "the misuse and abuse of humanitarian symbols for
purposes of launching attacks is called the perfidy principle. For example,
using an ambulance to transport fighters or weapons or disguising oneself as
a doctor in a hospital, or using a UN logo or flag, are war crimes."
The fourth violation, "of which little has been made, is the prohibition in
the Fourth Geneva Convention and international jurisprudence against the
direct and public incitement to genocide. The Hamas covenant itself is a
standing incitement to genocide. [Similarly,] just before this fighting
started, I saw Hamas leaders on television referring to Israel and Jews as
the sons of apes and pigs."
The fifth crime relates to the scope of the attack on civilians, which
upgrades the violation to a crime against humanity. According to Cotler,
"when you deliberately hit civilians not infrequently but in a systematic,
widespread attack, that's defined in the treaty of the International
Criminal Court and international humanitarian law as a crime against
The final war crime for which Hamas is responsible is the recruitment of
children into armed conflict.
"Hamas is a case study of each of these six categories of war crime," said
Cotler. Unfortunately, the international community "has been minimizing the
manner in which Hamas has engaged in consistent mass-violation of
international humanitarian law."
Cotler said specifically delineating Hamas's violations was important in
that it would place the onus of responsibility for the civilian tragedy in
Gaza on the proper party.
"The consequences [of the fighting] are tragic in human terms," he said.
"Clearly what is happening in Gaza is a tragedy. But there has to be moral
and legal clarity as to responsibility. When Israel responds and civilians
are killed because Israel is targeting an area from which rockets were
launched, then it is Hamas which bears responsibility for the deaths, and
not Israel, according to international law."