The Legal War: Hamas’ War Crimes and Israel’s Right to Self-Defense

Photo Credit: Yori Yanover

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.

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Notes

{Reposted from the JCPA website}