Doc's Talk: Hamas' Illegal Attacks on Civilians and Other Unlawful Methods of War

Wednesday, January 07, 2009

Hamas' Illegal Attacks on Civilians and Other Unlawful Methods of War – Legal Aspects

Background
As part of the Disengagement initiative in 2005, Israel withdrew all its military forces and civilians from the Gaza Strip (including from its border with Egypt), thereby ending its presence in that territory and handing over control to the Palestinian Authority. Since then, the Hamas terrorist organization - which rose to power in Palestinian elections in January 2006 and then wrested control of the Gaza Strip from the Palestinian Authority by means of an armed coup in mid-2007 - has continued to pursue a policy of armed attacks directed against Israel and its citizens.
While Hamas and other terrorist groups continue to make efforts to carry out acts of terrorism within Israel by a variety of means, including suicide bombings, in the last few years, Hamas' primary means of attacking Israel from the Gaza Strip, has been characterized by the firing of rockets and mortars against neighboring Israeli population centers. Indeed, since Hamas assumed control of the Gaza Strip in mid-2007, there have been more than 5,000 rockets fired into Israel from within Gaza by Hamas and other terrorist organizations, placing a quarter of a million of Israeli civilians under incessant terrorist attacks.
The increasing range and intensity of these deadly rocket attacks, deliberately aimed to kill and injure civilians, have recently reached as far as some of Israel's main cities, including Ashkelon, Ashdod and Be'er Sheva. Alongside the death and destruction caused by these attacks, the continuing rocket fire is aimed at terrorizing hundreds of thousands of Israeli civilians, making it impossible to maintain any sort of normalcy in an ever larger part of the country, and affecting every aspect of civilian life, ranging from home life, to schools and businesses.
As documented in this report, Hamas' violent and deliberate attacks against Israeli civilians and civilian objects, is accompanied by their equally callous disregard for the safety of Palestinian civilians living in the Gaza Strip: by launching attacks from within the confines of densely populated areas, by storing missiles and rocket launchers under mosques and homes, by using university facilities and other protected places to develop weapons and explosives, Hamas systematically abuses the protections afforded to civilians and civilian objects under international law, while placing the safety and welfare of these civilians at great risk.
These morally reprehensible acts also constitute grave violations of the Laws of Armed Conflict, as well as war crimes as indicated by this brief paper.

Legal framework
Whereas the Laws of Armed Conflict (sometimes also referred to as "Laws of War" or "International Humanitarian Law") have traditionally been applied to armed conflicts between sovereign States, and while questions remain as to whether armed conflicts involving non-State actors should be categorized as international or non-international armed conflicts, there is little doubt that the basic principles of the Laws of Armed Conflict, as codified in international treaties and customary international law, apply to and impose obligations on all parties to a conflict, including those armed groups such as Hamas and other terrorist organizations operating from within the Gaza Strip.
This brief paper seeks to point to some of the basic principles of the Laws of Armed Conflict which are relevant to, and widely flouted by, Hamas and other terrorist organizations, as clearly evidenced in the main body of this report.

(A) Attacks directed against civilians and civilian objects
One of the most serious violations of international law committed by the Hamas terrorist organization is constituted by its deliberate, systematic and widespread use of rocket attacks and suicide bombings directed at civilians and civilian objects. Such conduct contravenes a number of well-established principles of the Laws of Armed Conflict, and clearly constitutes a war crime and a crime against humanity.
(1) Contravention of the principle of distinction
The act of directing attacks against civilians and civilian objects contravenes the Principle of Distinction - the most fundamental rule of the Laws of Armed Conflict; according to this principle, parties must at all times distinguish between civilians and combatants. Moreover, under this rule, it is strictly prohibited to direct attacks at civilian objects or civilians not taking a direct part in hostilities.
The age old principle is neatly encapsulated by Article 48 of Additional Protocol I to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflict (1977), stating that:
"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."
The violation of this basic prohibition also amounts to a war crime. See for example, Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court (1998), which includes within its list of acts constituting war crimes, the following:
"Intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities".
(2) Contravention of the prohibition of committing acts or threats of violence the primary purpose of which is to spread terror among the civilian population
Alongside its aim of causing death, injury and destruction, there can be no doubt that Hamas' almost daily rocket attacks, aimed at Israel’s southern towns and cities, is aimed primarily at sowing terror among Israel's civilian population.
This, it should be noted, also amounts to a serious violation of an express prohibition under the Laws of Armed Conflict. Article 51(2) of Additional Protocol I to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflict (1977) states the rule thus:
"The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."
(B) Unlawful Methods of War employed by Hamas
In addition to the abovementioned violations of international law constituted by the deliberate and systematic rocket attacks directed at civilians and civilian objects, Hamas is also accountable for violating fundamental obligations under international law with respect to the protection of the civilian population under its control, as evidenced in this report.
(1) Utilizing the presence of civilians to render certain points, areas or military forces immune from military operations
As clearly shown in this report, Hamas makes operational use of heavily built-up and densely populated civilian areas in the Gaza Strip, for the planning, organizing and launching of rocket attacks. Moreover, Hamas deliberately makes use of civilian facilities (such as universities) for weapons development, and makes systematic use of protected civilian areas (including under homes and even mosques) for the hiding and storage of rockets, explosives and ammunition.
Such actions by the Hamas and other terrorist organizations clearly undermine the protections afforded to civilians in armed conflict, and puts such civilian objects at grave risk, by making them liable to attack. This, in direct contravention of the Laws of Armed Conflict, which prohibit using the presence of civilians in order to render certain points, areas or military forces immune from military operations.
Indeed, such conduct amounts to a war crime. See for instance, Article 8(2)(b)(xxiii) of the Rome Statute of the International Criminal Court (1998), which includes in its list of "war crimes" the act of:
"Utilizing the presence of a civilian ... to render certain points, areas or military forces immune from military operations".
(2) Human shielding
Perhaps even more reprehensible than the storing of weapons and launching of attacks from within civilian areas, is Hamas' increasingly widespread and systematic use of civilians directly as "human shields". Such conduct has been seen, for instance, when Hamas specifically calls on Palestinian men, women and children to flock to military targets which are expected to be attacked, in order to form "human shields".
As well as making the Hamas directly responsible for tragic and unnecessary civilian casualties in the Gaza Strip, such egregious violations of the express prohibitions under the Law of Armed Conflict, as stated above, clearly constitutes a war crime.
(3) Making improper use of the flag and insignia of the UN, as well as the distinctive emblem of the Geneva Convention.
As noted in this report, evidence exists of Hamas making use of medical ambulances bearing the UN flag and insignia, as well as the protective emblems of the Geneva Conventions (such as the Red Cross), for the transportation of terrorists actively participating in hostilities or for seeking refuge in hospitals.
Such conduct greatly endangers medical personnel, the sick and wounded, and also grossly undermines the special protections afforded to the medical and sick in times of armed conflict, constituting an act especially forbidden under the Laws of Armed Conflict:
An early formulation of this principle, can be found in Article 23(f) of the 1907 Regulations annexed to the Hague Convention IV Respecting the Laws and Customs of War on Land, under which it is "especially forbidden", "To make improper use of a flag of truce, … as well as the distinctive badges of the Geneva Convention."
Article 44 of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) also provides that: "… the emblem of the Red Cross on a white ground … may not be employed, either in time of peace or in time of war, except to indicate or to protect the medical units and establishments … ".
Similarly, Article 38 of Additional Protocol I to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflict (1977), states clearly that:
"(1) It is prohibited to make improper use of the distinctive emblem of the red cross, red crescent or … of other emblems, signs or signals provided for by the Conventions …".
(2) It is prohibited to make use of the distinctive emblem of the United Nations, except as authorized by that Organization."
Finally, it may be added that breach of this well-established core principle is also, in certain circumstances, considered to amount to a war crime.
(4) Using children to participate in hostilities
As shown in the report, there is also evidence of Hamas recruiting and regularly employing the use of children for hostile activities, which has ranged from the carrying out of suicide attacks, to the digging of tunnels and smuggling of weapons.
Such conduct clearly violates express principles of the Laws of Armed Conflict, including express prohibitions against allowing children to take part in hostilities.
Thus, as expressly provided for by Article 77(2) of Additional Protocol I to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflict (1977):
"The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces…"
Moreover, Article 8(2)(b)(xxvi) of the Rome Statute of the International Criminal Court (1998) lists the following acts as a war crime:
"conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities".
Conclusion
In light of all the above, it is clear beyond doubt, that in pursuit of its armed conflict against Israel and its civilians, the Hamas organization as well as other terrorist organizations, have systematically and deliberately perpetrated the most serious breaches of the Laws of Armed Conflict, including the commission of war crimes.
In particular, Hamas must be called to cease its deliberate attacks against wholly civilian objects in attempts to maximize damage to civilians and civilian property, and avoid using civilians and civilian population centers as “human shields”.
These continuing grave violations of basic principles of the Laws of Armed Conflict, as carried out by Hamas and other terrorist organizations, demonstrate their complete disregard for the well-being of civilians on both sides of this conflict, posing a direct assault, not only on the law, but on humanity itself.

No comments:

The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

Doc's Talk