OpinionIsrael at War

Hamas and Islamic Jihad are criminally liable for war crimes

Hamas is considered by all accepted criteria to be fully accountable under international humanitarian law for its actions in terror attacks against Israeli civilians and using its own civilians as human shields.

A pro-Hamas rally in the city of Rafah, in the southern Gaza Strip, on Oct. 27, 2022. Photo by Abed Rahim Khatib/Flash90.
A pro-Hamas rally in the city of Rafah, in the southern Gaza Strip, on Oct. 27, 2022. Photo by Abed Rahim Khatib/Flash90.
Alan Baker (JCPA)
Alan Baker
Amb. Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs.

The indiscriminate firing of more than 3,300 rockets into Israel’s towns and villages violates the rule of distinction in international humanitarian law, which requires combatants to limit attacks to legitimate military targets. This is a clear violation of accepted humanitarian norms and principles prohibiting targeting civilians.

The fact that Israel’s “Iron Dome” anti-missile defense system was able to reduce the fatal effect of such a barrage cannot in any way reduce the extent of the Palestinians’ criminal liability for severe war crimes in willfully and deliberately directing massive barrages of missiles toward civilian centers in Israel.

The willful, deliberate and hysteric massacre of civilians, including young people attending an open-air music event, as well as the indiscriminate entry into, destruction and pillaging of private civilian homes in Israel’s towns and villages, and indiscriminate murder of civilians living in those homes, is a clear violation of all accepted humanitarian norms, for which the Hamas and Islamic Jihad terror organizations must be held criminally responsible.

The taking of multiple civilian hostages, including entire families, elderly, women and infants, and their cruel and violent kidnapping and transfer to the Gaza Strip, as well as the loathsome exhibition of dead and mutilated bodies in the streets of Gaza, is an inexcusable and flagrant violation of humanitarian norms and an odious insult to humanity.

The deliberate and cynical use by Hamas and Islamic Jihad of their own civilians as human shields, as well as their use of mosques, hospitals, schools and private houses as weapons-storage facilities and firing platforms, are no less severe war crimes and violations of international humanitarian law.

The construction of tactical tunnels beneath urban civilian areas, hospitals, public facilities and urban roads is also a war crime and a grave violation of international humanitarian law.

Moreover, advocating a religious holy war aimed at creating a regional Islamic entity encompassing the whole of the territory of Israel contravenes the provisions of the 1948 Convention on the Prevention of Genocide.

For all the above crimes, Hamas and PIJ leaders and commanders are accountable and prosecutable under international law, which considers non-state actors bound by customary norms of international humanitarian law when they become a party to an armed conflict.

Hamas, even as a non-state entity or part of a non-state entity, is considered by all accepted criteria to be fully accountable under international humanitarian law for its actions in terror attacks against Israeli civilians and using its own civilians as human shields. Thus, its leadership, commanders and fighters are punishable for crimes against humanity and war crimes.

Originally published by the Jerusalem Center for Public Affairs.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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