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Oved Lobel
The ubiquitous handwringing and condemnation regarding potential Israeli violations of International Humanitarian Law (IHL) is the political and media equivalent of one hand clapping.
While there is no evidence to date that Israel has violated IHL despite the devastation of the war – on the contrary, there is evidence that it is going beyond what IHL actually requires, as it always has – there is overwhelming evidence that Hamas has violated nearly every relevant rule of customary IHL and the associated articles of the Geneva Conventions and Rome Statute.
There is a prevalent misconception that IHL does not apply to non-state actors and local wars; in fact, nearly all relevant rules of customary IHL apply to such organisations. An International Committee of the Red Cross (ICRC) study on customary IHL “comes to the conclusion that 136 (and arguably even 141) out of 161 rules of customary humanitarian law… apply equally to non-international armed conflicts.” These would be the “Conflicts not of an international character” – conflicts such as civil wars and insurgencies – covered by Article 3 of the Geneva Conventions and supplemented by Additional Protocol II.
But unfortunately for Hamas, this is not an Article 3 conflict – whatever “Palestine” is, it is not a part of the recognised territory of Israel – and is therefore covered by the full range of IHL. As international law expert David J. Scheffer, a senior fellow at the Council on Foreign Relations, pointed out, the so-called “state of Palestine” was allowed to ratify the Geneva Conventions and all additional protocols as well as the Rome Statute in 2015, despite the fact that no such state exists or has ever existed.
This brand of farce is not out of character for the UN, particularly when it comes to Israel and the Palestinians. “Palestine”, of which Gaza is a part, is considered a state solely for the purposes of IHL, and thus Hamas:
As a de facto governing authority in Palestine (namely, over Gaza) with control over its own militant forces, is obligated as part of the state of Palestine to comply with the Geneva Conventions and its three protocols. The state of Palestine also is a state party of the Rome Statute of the International Criminal Court (ICC), which means that Hamas leaders and personnel can be held accountable for committing genocide, crimes against humanity, or war crimes on, for example, Israeli territory or in Gaza.
Unlike Israel’s non-existent, or at the very least highly contentious, violations of IHL, Hamas has overtly committed thousands of actual war crimes and continues to do so. Little to no condemnation or reporting of these ongoing war crimes has been forthcoming. Rather, elements of the media and many politicians and officials have inverted responsibility and placed the blame for many of them on Israel.
First, Hamas is guilty under several provisions covered by Articles 7 and 8 of the Rome Statute, on “crimes against humanity” and “war crimes”, respectively. Hamas is also arguably guilty under Article 6 – “genocide” – as US Assistant Secretary of State for Near Eastern Affairs Barbara A. Leaf and the US Deputy Assistant Secretary of Defense for the Middle East Dana Stroul recently testified before the US Congress. This is a great irony given how often the terms “genocide”, “war crimes” and “crimes against humanity” are used to malign Israel and its military conduct.
Hamas is also in open violation of nearly every relevant rule of treaty and customary IHL pertaining to the distinction between civilians and combatants, which you can read for yourself (Rules 1-24, Chapters 1-6) in the ICRC database. Rule 2, which Hamas violates by its very existence every day, prohibits terrorism, stating, “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”
In addition, Hamas has released reams of footage of its operatives fighting in civilian clothing, thus violating Rule 106 and associated articles in the Geneva Conventions relating to prisoner-of-war status: “Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.”
Aside from specifically targeting civilians and civilian objects indiscriminately and without warning and doing so from civilian areas, it is also in violation of Rule 71: “The use of weapons which are by nature indiscriminate is prohibited.” Every one of the nearly 10,000 missiles Palestinian groups have fired at Israeli towns since October 7 is a war crime under this rule.
Hamas is also in violation of Rule 97 – “The use of human shields is prohibited” – as well as Rule 23, which states, “Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas.”
This means every rocket fired by Hamas from civilian areas of Gaza is not simply a “double war crime”, as the Israelis say, but a violation of dozens of IHL provisions and customary rules, meaning Hamas has committed tens of thousands of genuine war crimes already.
Hamas also continues to violate Article 34 of the Fourth Geneva Convention and Rule 96 of customary IHL: “The taking of hostages is prohibited”. Meanwhile, Rule 93 – “Rape and other forms of sexual violence are prohibited” – has been horrifically violated by Hamas, according to forensic and video evidence as well as both eyewitness and Hamas detainee testimony.
Rule 80, which prohibits “the use of booby-traps which are in any way attached to or associated with objects or persons entitled to special protection under international humanitarian law or with objects that are likely to attract civilians,” has also been violated by Hamas, both inside Israel as well as in Gaza.
The terrorist organisation also arguably violated prohibitions against pillage in Article 33 and Rule 52, depending on how organised the looting of the kibbutzim it invaded was. Article 33 also states that “all measures…of terrorism are prohibited.”
The October 7 pogrom also violated Rule 90 of customary IHL and Article 32 of the Geneva Conventions prohibiting torture, murder and general brutality, with the customary rule adding the prohibition against “cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment.”
Furthermore, Hamas has violated essentially every customary rule relating to the treatment of the dead (Chapter 35, Rule 112-116), including Rule 113, which prohibits mutilation of bodies. The terrorist group also arguably violated nearly every aspect of the rules relating to “Persons deprived of their liberty” (Chapter 37, Rules 118-128).
This includes Rule 124, Article 126 of the Third Geneva Convention and Articles 76 and 143 of the Fourth Geneva Convention on ICRC access, which states, “the ICRC must be granted regular access to all persons deprived of their liberty in order to verify the conditions of their detention and to restore contacts between those persons and their families.”
As then ICRC Director-General Yves Daccord said in 2011, five years after the kidnapping by Hamas of Gilad Shalit:
The Schalit family have the right under international humanitarian law to be in contact with their son. The total absence of information concerning Mr. Schalit is completely unacceptable…Hamas has an obligation under international humanitarian law to protect Mr. Schalit’s life, to treat him humanely and to let him have contact with his family.
In addition, Hamas violated Rule 121, which demands that “Persons deprived of their liberty must be held in premises which are removed from the combat zone and which safeguard their health and hygiene.” Instead, Hamas held and continues to hold hostages in the combat zone, including in tunnels and hospitals it uses to attack the IDF.
The director-general of the Soroka Medical Centre, Dr Shlomi Kodesh, said it was clear that recently released 84-year-old hostage Elma Avraham, who is in serious, life-threatening condition at that hospital, was not cared for by Hamas.
Hamas has also been violating Rule 137, “Children must not be allowed to take part in hostilities”, for decades. Minors are systematically recruited and used by Hamas and other Palestinian terrorist groups.
Unlike many medical facilities in Gaza, which have lost their protection under IHL according to Article 19 of the Geneva Convention due to their use to commit “acts harmful to the enemy” by Hamas and other Palestinian terrorist groups, Israeli hospitals are used exclusively for civilian purposes and are not co-located with military infrastructure. The Barzilai Hospital in Ashkelon has been directly struck by Hamas rockets at least three times, a violation of Article 18. The only legal defence would be that the rockets are too indiscriminate to have specifically targeted the hospital, which is in itself a war crime; in fact, a series of them.
This is not a comprehensive list of Hamas’ barbarism and disregard for IHL. Politicians, international officials and journalists should absolutely continue using the term “war crimes” to describe what’s happening in Gaza, because Hamas has committed and continues to commit a plethora of them on a daily basis. “Genocide” and “crimes against humanity”, too, can be relevant terms in this context, but only when applied to Hamas and its conduct, not Israel’s.
One either cares about the principle of IHL adherence or one doesn’t. Anyone who is unable or unwilling to mention Hamas’ countless and ongoing violations of IHL at the same time as they express concern, well-founded or not, about Israel’s conduct clearly belongs in the latter category.
