Hamas War Crimes Must Not Go Unnoticed
Hamas War Crimes Must Not Go Unnoticed
Hamas And The Palestinian National Authority Are Also Subject To The Geneva Conventions
War is Hell.
That point was made in tragic detail last week when Israel conducted a series of air strikes against the Jabalya Refugee Camp in Gaza, an attack I discussed from the perspective of it being an arguable war crime by Israel.
Yet we would be remiss if we focused all opprobrium on Israel and the IDF and spared none for Hamas. There are two combating parties to this conflict, and if we scrutinize the conduct of one we must scrutinize the conduct of the other.
There is a temptation among many to regard Hamas and the Israeli Defense Force with a form of moral equivalency, where criticism of Hamas is rendered moot because of acts of oppression and/or evil by the IDF. Oftentimes the criticism goes the other way, where the acts of the IDF are rationalized because of the evil and oppressive acts of Hamas (or other Palestinian terrorist group, of which there are many).
This is the wrong approach. It is neither ethical nor moral to couch criticism of the sins of one in terms of the sins of others. Mosaic Law from Deuteronomy 24:161 makes this point abundantly clear:
The fathers shall not be put to death for the children, nor shall the children be put to death for the fathers; every man shall be put to death for his own sin.
We can and should scrutinize and criticize Israel and the IDF for all that they do, be it good or bad.
Likewise, we should scrutinize and criticize Hamas for all that it does, be it good or bad.
Israel must answer for Israel. Hamas must answer for Hamas. That is the proper moral stance. That is the only moral stance.
Accordingly, it is appropriate to entertain a discussion of war crimes committed by Hamas.
When we discuss Hamas’ war crimes we must set the proper foundation for establishing what international agreements on the conduct of war to which Hamas may be properly held.
As is the case with Israel, the Palestinian National Authority has ratified the Geneva Conventions of 1949, as well as the Additional Protocols 1, 2, and 3, having done so in 2014.
Hamas won nominal control of the Palestinian Legislative Council, the legislative body for the Palestinian National Authority, in a surprise 2006 election victory. While their victory has never been recognized by the international community, the other principal party ruling the PNA, Fatah, did acknowledge their victory and Hamas attempted to form a government for the PNA, with Ismail Haniyeh tapped to become the PNA Prime Minister.
That process soon devolved into civil war between Fatah and Hamas, which more or less ended in 2007, when Hamas took control of Gaza and Fatah retained control of the West Bank. Although Haniyeh had been effectively deposed by Fatah, at the time he pledged to remain in power and govern the PNA.
But Mr Haniyeh of Hamas, said Mr Abbas's decision to dismiss him and his government was "hasty", and he pledged to stay in power.
Mr Haniyeh told a late night Gaza news conference that Mr Abbas and his advisers had not considered "the consequences [of the decision] and its effects on the situation on the ground".
By 2011, Hamas and Fatah began working on a process of reconciliation which seemed to bear fruition in 2012, whereby the Fatah leader Mahmoud Abbas would form an interim government. Divisions remained, and it was not until 2014 when a unity government was sworn in. It was during this time of reconciliation the PNA ratified the Geneva Conventions with all their protocols.
As of 2022, the process of reconciliation was still very much a work in progress, yet both Fatah and Hamas fundamentally acknowledge Hamas is part of the leadership of the Palestinian National Authority
Given that Hamas has never renounced either the PNA government itself or its accession to the Geneva Conventions, we may without fear of correction, apply the Palestinian-ratified Geneva Conventions to Hamas’ conduct in its war on Israel.
In that regard, and as I commented previously, there is no doubt but that the Hamas attack on Israeli kibbutzim on October 7 was an undeniable series of war crimes.
Nevertheless, Article 48 of the Additional Protocol dictates that parties to a conflict shall only target military installations and pursue military objectives. Civilian populations and their infrastructures are not to be targeted.
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.
We should be mindful that the Palestinian National Authority is as signatory to the Additional Protocol, and Hamas’ October 7 attack is therefore itself an undeniable war crime perpetrated by Hamas against Israel, as the attacks were clearly not against any military objectives whatsoever, in blatant disregard for Article 48 of the Additional Protocol.
We know without any shadow of doubt we have October 7 as an instance (really multiple instances) of war crimes committed by Hamas against Israel.
Yet what can we say about how Hamas has treated and led the Palestinian Arab people within Gaza? Let us consider a few exemplars of Hamas conduct in Gaza
One of the more disturbing reports that we have seen regarding Hamas has been its efforts to blockade Palestinian Arab civilians from leaving northern Gaza after being warned by the IDF to evacuate ahead of reprisal attacks for October 7.
Hamas is blocking the citizens of Gaza from heading south after Israel warned more than one million people to flee, the Israel Defense Forces have claimed.
In an update posted to X, the IDF shared two photos showing an alleged Hamas roadblock along a road in Gaza.
Another photo showed a long line of cars, purportedly residents who wanted to escape Gaza City ahead of an Israeli ground offensive.
Additionally, Hamas has explicitly ordered Palestinian Arab civilians to remain in their homes and not comply with IDF warnings to evacuate northern Gaza in advance of IDF reprisals.
Hamas on Friday told Palestinians living in Gaza not to leave their homes, according to a statement sent to media organizations.
Paragraph 7 of Article 51 of Additional Protocol 1 to the Geneva Conventions2 has this to say about the disposition of civilians in areas where combat is occurring or about to occur.
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 or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
Hamas cannot, at any time, use civilians, be they hostages or ordinary Palestinian Arab citizens, to shield Hamas facilities from Israeli attack. Hamas cannot use ordinary Palestinian Arab citizens to frustrate Israeli attacks on Hamas’ infrastructure or personnel. No party to any conflict is permitted to do this.
Every time Hamas has done this—and the reporting shows that Hamas does this not just repeatedly but routinely—it is guilty of a war crime. To the extent that Palestinian Arab citizens have perished because of Hamas doing this, Hamas bears culpability for those deaths.
Is Israel also guilty of a war crime when Palestinian Arabs die because Hamas has placed them in harm’s way? Probably the best answer to that question is “it depends”.
Paragraphs 1 and 2 of Article 51 explicitly state that civilians and civilian populations are not to be targeted. Paragraphs 4 and 5 go on to prohibit “indiscriminate attacks”, and gives examples.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and
(b) an 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.
If Hamas detains Palestinian Arabs in Gaza and they are not in or near legitimate military targets, a case could be made that the IDF is also guilty of war crimes when its attacks result in collateral and civilian casualties.
If an attack is not “indiscriminate”, and if the IDF is not targeting civilians, then in all likelihood the IDF would not be guilty of a war crime.
In every instance where Hamas prevents civilians from leaving a combat zone, however, Hamas is guilty of a war crime.
If Hamas detains Palestinian Arabs in Gaza hospitals, which are then used to store rockets and munitions, the IDF arguably is not guilty of war crimes when there are civilian casualties. Hamas, under article 51 of Additional Protocol 1, is unquestionably guilty of a war crime in that instance.
Article 18 of Geneva Convention (IV)3, to which Israel is a signatory and to which the PNA/Hamas acceeded in 2014, prohibits the targeting of civilian hospitals.
Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.
However, when an hospital is used for non-medical military purposes, per Article 194 it loses its protection.
The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.
Israel claims this is the case with respect to the al-Shifa hospital in Gaza, which it says Hamas uses to shield a command center.
To people in Gaza, Al Shifa is the biggest and most advanced hospital around — a lifeline, in normal times, and now a place of refuge from relentless Israeli airstrikes.
More than 60,000 people are sheltering there. But to the Israeli military, it is a threat, and, perhaps, a target.
On Friday, hours before the Israeli military stepped up its bombardment of Gaza in retaliation for Hamas’s mass killings of Israelis three weeks ago, it held a news conference in which it said that Al Shifa conceals underground command centers for Hamas — raising fears that the military was laying the groundwork for attacking the hospital.
If we take the Israeli claim at face value (as we must, for the time being, as there is little information which we may use to vet such a claim), then Hamas has again violated the Geneva Conventions, in particular Article 18/19 of Convention (IV). Moreover, by establishing the bona fides for its claim about al-Shifa hospital, the IDF is arguably providing the requisite notice to the Palestinian Arabs at the hospital that the building is now a legitimate military target, and an attack on the hospital would not run afoul of the prohibition on indiscriminate attacks.
In such instance, the burden is upon Hamas and the Palestinian Arabs to evacuate the hospital, or to demonstrate that all command centers and associated functions have been removed from the hospital. If they fail to do so, any civilian blood shed is mainly on Hamas’ hands rather than Israel’s.
In the case of al-Shifa hospital, Hamas is arguably guilty of a further war crime.
Israel has alleged—and has provided recorded phone calls to support the allegation—that Hamas has expropriated more than 500,000 liters of fuel for powering the hospital’s diesel generators.
The Israel Defense Forces released on Friday a recording of a call in which a Gaza health official confirms that Hamas is hoarding fuel and has stored more than half a million litres (over 132,000 gallons) under the Shifa Hospital.
Further, in the recorded conversation, the Gaza official speaking with the IDF confirmed that if additional fuel were delivered to the hospital, Hamas would simply take that as well.
“Hamas controls the diesel,” the health official says in the recording.
“Both of us know what is under the hospitals,” an IDF officer responds.
“My friend, let’s not talk about Shifa. May God curse Shifa, the health official replies.
The officer then notes that Israel could provide fuel for Shifa, “but if I bring [fuel] to the hospital right now, they [Hamas] will take it. Don’t you agree with me?”
“My friend, you are completely right,” says the health official.
Article 23 of Convention (IV)5 requires that hospital stores and supplies—which would include fuel for generators—must not be interdicted or diverted.
Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.
Moreover, Israel is relieved of the obligation to ensure supplies of fuel and medical stores to Gaza hospitals if it knows that Hamas is simply going to steal the supplies.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:
(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.
By diverting fuel and other supplies away from hospital usage, Hamas is in flagrant violation of Article 23. Further Israel is relieved of its Article 23 obligations to ensure such supplies flow into Gaza hospitals, as Hamas is merely diverting the supplies and preventing them from reaching their intended destination.
All such diversions by Hamas are war crimes by Hamas against the Palestinian Arab people.
In a conflict as lengthy as that between the Israelis and the Palestinian Arabs, it is not possible to explore or even summarize every potential war crime by either party. It is also not, at present, necessary to do so. It is enough to establish that there are war crimes, there are violations of the laws of war as established by international treaty.
And there are war crimes on both sides. Just as Israel and the IDF are arguably guilty of war crimes for what appears to be an indiscriminate and disproportionate series of attacks on Jabalya Refugee Camp last week, Hamas is demonstrably guilty of multiple war crimes even within that attack for having one of its commanders, Ibrahim Bieri, hiding out within the camp. If it should be established that Bieri was not the only Hamas leader hiding behind the residents of Jabalya, a case may yet emerge where Israel is justified in conducting the attacks that it has.
Regardless of whether Israel can or cannot claim justification in that instance, by the Geneva Conventions which the Palestinian National Authority has ratified, the government of which willfully includes Hamas, leave Hamas with neither justification nor excuse for its conduct.
Hamas is using hospitals as cover for military facilities. Every instance of this is a war crime.
Hamas is preventing civilians from evacuating from areas around legitimate military targets, ordering and coercing civilians to remain where they are and blockading those who attempt to flee anyway. Every instance of this is a war crime.
Hamas is stealing fuel and other stores from at least the al-Shifa hospital, and likely others. Every instance of this is a war crime.
Moreover, these are war crimes by Hamas against the Palestinian Arab peoples, not against the Israelis. Hamas is demonstrably perpetrating war crimes on the people it proposes to be defending and on whose behalf Hamas claims to be fighting. Far from fighting on behalf of the Palestinian Arabs, Hamas has taken multiple actions which are clearly and even intentionally harmful to the Palestinian Arabs.
If there is a singular distinction to be made between the conduct of the IDF and the conduct of Hamas it is this: the IDF has perpetrated war crimes against the Palestinian Arabs, but Hamas has perpetrated war crimes against everybody.
Bible Gateway Passage: Deuteronomy 24:16 - Revised Standard Version. https://www.biblegateway.com/passage/?search=Deuteronomy%2024%3A16&version=RSV.
ICRC Database, Treaties, States Parties and Commentaries, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977., Article 51 - Protection of the civilian population, https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Article 18 - Wounded and sick III. Protection of hospitals, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-18?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Article 19 - Wounded and sick IV. Discontinuance of protection of hospitals, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-19?activeTab=undefined
ICRC Database, Treaties, States Parties and Commentaries, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Article 23 - Consignment of medical supplies, food and clothing, https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-23?activeTab=undefined
Thank you for criticizing Hamas as that position never seems to be considered among the anti-Israel crowd.
Despite some of your legitimate criticisms of Israel during this war, I wonder if you would concede none of these war crimes would be taking place if Hamas didn't attack Israel on October 7th.
I’ve said it before, Mr. Kust - you would have made a great jurist!