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.