Photo Credit: Yori Yanover
Human Shields

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.

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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.

* * *

Notes

  1. Hamas Charter, http://www.acpr.org.il/resources/hamascharter.html, see Article 2:

    “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.”

  2. Yazan al-Saadi, “Palestinian Reconciliation: A History of Documents,” Al AkhbarEnglish (Lebanon), April 28, 2014, http://english.al-akhbar.com/node/19580
  3. See Declaration by the OAS dated May 15 2021 (Reference: E-051/21): https://www.oas.org/en/media_center/press_release.asp?sCodigo=E-051/21. See also https://www.timesofisrael.com/35-country-pan-american-group-designates-hamas-a-terrorist-organization/ See also U.S. ”Country Reports on Terrorism 2019,″ U.S. Department of State, Office of the Coordinator for Counterterrorism, https://www.state.gov/reports/country-reports-on-terrorism-2019/israel/ ; Canadian “Currently Listed Entities,” Department of Public Safety and Emergency Preparedness. November 22, 2012; EU Council Common Position 2003/651/CFSP; Khaled Abu Toameh, “King Abdullah Says No to Hamas,” Gatestone Institute, September 17, 2013, http://www.gatestoneinstitute.org/3978/king-abdullah-hamas; “Cairo Court Bans Activities by Palestinian Hamas in Egypt, Brands It a Terrorist Organization,” Associated Press, March 4, 2014, http://www.foxnews.com/world/2014/03/04/cairo-court-bans-activities-by-palestinian-hamas-in-egypt-brands-it-terrorist/
  4. 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 Khaled Abu Toameh and Yaakov Lappin, “Hamas Claims Responsibility for Rocket Fire on Israel,” Jerusalem Post, July 7, 2014, http://www.jpost.com/Middle-East/Hamas-claims-responsibility-for-rocket-fire-on-Israel-361830 and “The Islamic Jihad took responsibility for the rockets fired toward Tel Aviv,” in Yaakov Lappin, “Hamas: We Attempted to Hit the Nuclear Reactor in Dimona,” Jerusalem Post, July 9, 2014,
    http://www.jpost.com/Operation-Protective-Edge/Rocket-alert-sirens-sound-in-Zichron-Yaakov-120-km-north-of-Gaza-362087

    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 Elhanan Miller, “Fatah Joins Hamas and Islamic Jihad in Missile Launches,” Times of Israel, July 10, 2014, http://www.timesofisrael.com/moderate-fatah-joins-hamas-and-islamic-jihad-in-missile-launches/#ixzz37KhRmK25.

    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.’”

  5. See UN Security Council Resolutions 1267 (1999) of October 15, 1999, http://www.state.gov/j/ct/rls/other/un/5110.htm; 1373 (2001) of September 28, 2001,
    http://unispal.un.org/UNISPAL.NSF/0/392A001F254B4B9085256B4B00708233;1540 (2004) of April 28, 2004, http://www.treasury.gov/resource-center/sanctions/Documents/1540.pdf; as well as its other resolutions concerning threats to international peace and security caused by terrorism.
  6. UN Security Council Resolution 1269 (1999) of October 19, 1999, http://www.mefacts.com/cached.asp?x_id=10835
  7. UN Security Council Resolution 1566 (2004) of October 8, 2004, http://www.state.gov/j/ct/rls/other/un/66959.htm
  8. “United Nations Action to Counter Terrorism – International Legal Instruments,” United Nations, http://www.un.org/en/terrorism/instruments.shtml
  9. “Measures to Eliminate International Terrorism – Report of the Sixth Committee,” United Nations, November 25, 1997, http://www.un.org/law/cod/terroris.htm
  10. “Measures to Eliminate International Terrorism,” UN General Assembly Resolution 49/60, December 9, 1994, http://www.un.org/documents/ga/res/49/a49r060.htm
  11. “(Inter-) Regional Action against Terrorism,” UN Office on Drugs and Crime, https://www.unodc.org/tldb/en/regional_instruments.html
  12. See Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict(Cambridge: Cambridge University Press, 2005), p. 82.
  13. Article 6 of the Hamas Charter.
  14. 78 UNTS 277.
  15. Rome Statute of the International Criminal Court, http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf. See specifically Articles 7(1) and (2)a (Crimes against humanity) and Article 8(2)(b)(i)(ii)(iv) (War crimes), and Article 13 (Exercise of the court’s jurisdiction).
  16. 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).”
  17. Quoted in Horowitz article, citing Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), May 31, 2004, para. 22. See more at Horowitz, “Accountability of Hamas,” https://jcpa.org/article/accountability-of-the-hamas-under-international-humanitarian-la/
  18. Ibid. See also Lisbeth Zegveld, Accountability of Armed Opposition Groups in International Law(Cambridge: Cambridge University Press, 2002).
  19. “Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, October 18, 1907 – Article 25,” International Committee of the Red Cross, http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=D1C251B17210CE8DC12563CD0051678F.
  20. “Protocol Additional to the Geneva Conventions of August 12 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977 – Article 48,” International Committee of the Red Cross, http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=8A9E7E14C63C7F30C12563CD0051DC5C
  21. 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
  22. “UNRWA Strongly Condemns Placement of Rockets in School,” UNRWA, July 17, 2014, http://www.unrwa.org/newsroom/press-releases/unrwa-strongly-condemns-placement-rockets-school. Evidently, according to media reports, this did not prevent the UNRWA officials from transferring the rockets found in the school to the Hamas authorities. See Raphael Ahren, “UN Agency Handed Rockets Back to Hamas, Israel Says,” Times of Israel, July 20, 2014, http://www.timesofisrael.com/un-agency-handed-rockets-back-to-hamas-israel-says/
  23. “The Use of Mosques in the Gaza Strip for Military Purposes by Hamas and Other Terrorist Organizations: The Case of the Al-Farouq Mosque,” Intelligence and Terrorism Information Center, July 13, 2014, http://www.terrorism-info.org.il/Data/articles/Art_20672/E_113_14_1401598645.pdf
  24. See note 10 above, http://www.un.org/documents/ga/res/49/a49r060.htm
  25. Charter of the United Nations, “Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression,” http://www.un.org/en/documents/charter/chapter7.shtml
  26. 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
  27. “Security Council Condemns, ‘in Strongest Terms,’ Terrorist Attacks on United States,” United Nations, September 12, 2001, http://www.un.org/News/Press/docs/2001/SC7143.doc.htm. See also UN Document S/PRST/2021/1 dated January 12 2021: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_prst_2021_1.pdf
  28. UN Security Council Resolution 1373 (2001) of September 28, 2001, http://unispal.un.org/UNISPAL.NSF/0/392A001F254B4B9085256B4B00708233
  29. See Thomas Franck, “Terrorism and the Right of Self-Defense,” American Journal of International Law, Vol. 95, (2001), pp. 839-840.
  30. Justus Reid Weiner and Abraham Bell, “International Law and the Fighting in Gaza,” Jerusalem Center for Public Affairs, 2008, p. 16, https://jcpa.org/article/international-law-and-the-fighting-in-gaza/
  31. “Statement by Director of UNRWA Operations in Gaza, Robert Turner, on the Unfolding Situation in the Strip,” UNRWA, July 10, 2014, http://www.unrwa.org/newsroom/official-statements/statement-director-unrwa-operations-gaza-robert-turner-unfolding
  32. See note 10 above, http://www.un.org/documents/ga/res/49/a49r060.htm
  33. “IDF Strikes Houses in Gaza Used for Military Purposes,” Israel Defense Forces, July 10, 2014, http://www.idfblog.com/blog/2014/07/10/idf-strikes-houses-gaza-used-military-purposes/
  34. “Palestinian Envoy to UNHRC: Israelis Warn Civilians Before Attacks, We Don’t,” MEMRI TV, July 13, 2014, https://www.youtube.com/watch?v=DjzS27ylCZ8
  35. UNRWA Gaza chief apologizes for saying IDF strikes ‘precise’ and ‘sophisticated’ | The Times of Israel
  36. https://israel-alma.org/2021/05/18/the-al-jalaa-building-neutralizing-a-clear-and-imminent-danger/ https://www.nytimes.com/live/2021/05/21/world/israel-hamas-news#israeli-regrets-bombing

    2014, https://socioecohistory.wordpress.com/2014/07/22/british-parliament-accuses-israel-of-war-crimes/

  37. ‘They drank coffee with Hamas men,’ comments IDF Chief of Staff on AP journalists in Gaza (worldisraelnews.com)
  38. “Rule 14. Proportionality in Attack,” Customary IHL, International Committee of the Red Cross, http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14
  39. Janina Dill, “Applying the Principle of Proportionality in Combat Operations,” Oxford Institute for Ethics, Law and Armed Conflict, University of Oxford, December 2010, http://www.elac.ox.ac.uk/downloads/proportionality_policybrief_%20dec_2010.pdf
  40. Stephanie Gutmann, “The Body-Count Cliché – The Victim-Loving Western Media Have a Weakness for Palestinians,” National Review, July 11, 2014, http://www.nationalreview.com/article/382471/body-count-clich-stephanie-gutmann. See also Eric H. Yoffe, “The Bizarre Moral Criticism Against Israel – What Does It Mean to Say that Casualties Are ‘Disproportionate’?” TIME, July 14, 2014, http://time.com/2982215/israel-gaza-casualties/

{Reposted from the JCPA website}

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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.
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