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War Crimes Committed by Hamas: the use of Human Shields

War Crimes Committed by Hamas: the use of Human Shields

21 July 2014

I. The Principle of Distinction

A core principle of the law of armed conflict is the 'principle of distinction' - the obligation imposed on each party to the conflict to ensure at all times that a distinction is made between combatants and civilians. This principle is reflected in Article 48 to the Additional Protocol I of the Geneva Conventions:

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

This principle which is widely accepted worldwide requires parties to a conflict to ensure the protection of civilians on both sides. Accordingly, a party to the conflict is prohibited from using its own civilians as shields. As the Secretary General's report on the 1993 attack on UN forces in Somalia noted:
No principle is more central to the humanitarian law of war than the obligation to respect the distinction between combatants and non-combatants. That principle is violated and criminal responsibility thereby incurred when organizations deliberately target civilians or when they use civilians as shields or otherwise demonstrate a wanton indifference to the protection of non-combatants.[1]

II. War Crimes Committed by Hamas

Hamas, a terrorist organization which is designated as such by many states including the United States and the European Union, has ascribed to an ongoing strategy of purposefully and blatantly violating the most fundamental principles of the laws of armed conflict including the law of distinction outlined above.

The laws of armed conflict clearly establish that parties to the conflict are prohibited from using civilian population or civilian objects for the purpose of shielding military objectives,

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 in attempts to shield military objectives from attacks.[2]

In addition the very presence of military objectives in densely populated areas is explicitly prohibited under the rules of law. Such a requirement is set forth in Article 58 of Additional Protocol I of the Geneva Conventions which requires all parties to a conflict to “…avoid locating military objectives within or near densely populated areas”.

In flagrant violation of the laws outlined above Hamas' deliberate placement of military objects (command centers, weaponry including rocket launching pads and the like) in the heart of civilian areas is a serious violation of international law. For over 14 years Hamas has fired rockets from schools and mosques[3]; has used ambulances to transport weapons and terrorists[4]; has commandeered private homes for use as command centers and for carrying out attacks while the resident family is prevented from leaving[5]. In recent days we have seen Hamas efforts to use the civilian population as human shields, as the organization has tried to encourage civilians to ignore IDF advanced warnings of attacks. These are all severe violations of international humanitarian law, which amount to war crimes for which Hamas bears full responsibility.

And as international law expert Yoram Dinstein wrote:

Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk. [Emphasis added][6]

To sum up, Hamas thus violates the principle of distinction and the obligation to clearly distinguish itself from its own civilian population and to avoid the use of civilian population as human shields. By doing so, Hamas and the terror organizations in the Gaza Strip are clearly committing war crimes.

[1] The Secretary General report pursuant to paragraph 5 of UN Security Council resolution 837 (1993)

[2] Article 51 of Additional Protocol I of the Geneva Conventions.
[3] Under Article 53 of the Additional Protocol I of the Geneva Conventions, "…it is prohibited to use such objects in support of the military effort."
[4] According to Article 12 of the Additional Protocol I of the Geneva Conventions, "Under no circumstances shall medical units be used in an attempt to shield military objectives from attack."
[5] Article 58 of Additional Protocol I of the Geneva Conventions requires all parties to a conflict to “…avoid locating military objectives within or near densely populated areas; take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations."
[6] Dinstein, Conduct of Hostilities under the Law of International Armed Conflict, 2004 p.131.


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