Report: Hamas Misused International Law to Undermine Support for Israel

The terrorist organization Hamas misused international law during Operation Protective Edge last summer “to undermine Israel’s perceived moral standing and international support,” according to a report commissioned by the Jewish Institute for National Security Affairs (JINSA) and released this week. Thereport(.pdf), which was written by a task force headed by five retired American generals, observed:

Contrary to accusations of widespread unlawful military conduct, we observed that Israel systemically applied established rules of conduct that adhered to or exceeded the Law of Armed Conflict (LOAC) in a virtually unprecedented effort to avoid inflicting civilian casualties, even when doing so would have been lawfully permitted, and to satisfy the concerns of critics. However, it is the conclusion of this Task Force that Israel’s military restraint unintentionally empowered Hamas to distort both the law and facts for their own purposes to the ultimate detriment of civilians’ safety, for which Hamas bears sole responsibility.

The central chapter of the report, called “Weaponizing the Law” explains how Hamas manipulated international lawto takeadvantage of the “widespread misunderstanding of LOAC not just amongwarring parties but also media, observers and the international public – a misunderstandingbuilt on the false assumption that the law prohibits the infliction of any and all civilian casualties.”

Based on the evidence available to us, it is our judgment that Hamas significantly increased the danger to Gazan civilians – and consequently increased the number of civilian fatalities – by locating rocket launchers, other weapons, command and control facilities and munitions at sensitive sites and in residential areas. This was done with no apparent military necessity – a clear violation of LOAC. Additionally, Hamas unlawfully discouraged and, in some cases, prevented civilians from leaving areas they knew would be targeted by the IDF. This goes well beyond the tactic of using human shields (with which the IDF and U.S. military are already well acquainted) and introduced a dangerous new dimension to this conflict.

Not only did Hamas appear unconcerned about fulfilling its own obligations under LOAC, but it also utilized the language of LOAC to condemn Israeli operations. In a memo to social media activists at the beginning of the 2014 Gaza War, the Hamas Interior Ministry provided suggested talking points and encouraged activists to compare Israeli actions to the Holocaust. “When speaking to the West, you must use political, rational and persuasive discourse, and avoid emotional discourse aimed at begging for sympathy,” the memo stated. “Avoid entering into a political argument with a Westerner aimed at convincing him that the Holocaust is a lie and deceit; instead, equate it with Israel’s crimes against Palestinian civilians.” On the Qassam Brigades information office’s official website, Hamas published weekly updates of “Israeli violations of international and humanitarian law.” Moreover, Hamas officially gave consent to the Palestinian Authority’s efforts to join the International Criminal Court to allow war crimes probes into Israel’s operations in Gaza to be initiated.

These statements suggest a concerted strategy on the part of Hamas to exploit misunderstandings of LOAC to gain international condemnation of Israel. Such attempts to move the conflict from the battlefield, where Israel enjoyed military and technological superiority, to the court of international opinion appears to have been part of Hamas’s concept of operations in the 2014 Gaza War.

Contrary to the conclusions drawn in the media and in international organizations about Israeli conduct during Operation Protective edge, the report found that:

We believe Israeli commanders exercised remarkable judgment and, at times, restraint in the employment of combat power. Moreover, they did so while facing an extremely complex operational environment and an adaptive asymmetric enemy that deliberately increased the risk of civilian casualties through its tactics, even when other alternatives were available. The IDF institutionally had a systematic process for adhering to LOAC, beginning with training at all levels of command, through excellent target assessment processes and decision-making at appropriate levels of command to ensure maximum care in the targeting process, especially in the employment of aerial delivered munitions. We also know the IDF is conducting ongoing investigations into civilian deaths in a credible and conscientious manner, indicating it will not tolerate LOAC violations among its own force.

In a similar recently published analysis for the Jerusalem Center for Public Affairs, Amb. Alan Baker wrote:

The terrorist actions by Hamas, including the indiscriminate targeting of Israel’s civilian population centers and the deliberate and cynical exposure and use of its own civilians, mosques, hospitals and schools as human shields, are violations of international humanitarian law for which Hamas’ leaders and commanders are accountable and prosecutable.

International law recognizes Israel’s right to defend itself, whether by the conventional international right of self-defense as set out in the UN Charter or by the international customary right to self-defense…

Much has being written and spoken about in the international media and by leaders in the international community regarding the violence in summer 2014 between the Hamas terror entity in the Gaza Strip and Israel, especially given the graphic pictures displayed by various media sources. But there are pertinent legal points that do not always figure in this barrage of selective, often inaccurate, and even malicious commentary and criticism.

Much of the legal background to the JINSA findings was explained by David Daoud in Everything You Need to Know about International Law and the Gaza War, which was published in the September 2014 issue of The Tower Magazine.

InWhy the Schabas Report Will Be Every Bit as Biased as the Goldstone Report, which was published in the March 2015 issue of The Tower Magazine, Hillel Neuer explained how ideologues and anti-Israel activists distort international law to Israel’s detriment under the auspices of the United Nations and its associated agencies.

On March 23, what for six months was the Schabas Commission, and now in its final and seventh month has become the McGowan Davis Commission, will present its report to the Human Rights Council. Do we have any reason to expect a fair, objective, and credible report?

Not if we consider the built-in prejudice of the commission’s founding mandate, spelled out in resolution S-21/1 of July 23, 2014, which preemptively declares Israel guilty. It condemns the Jewish state “in the strongest terms,” citing “widespread, systematic, and gross violations of international human rights,” “the targeting of civilians and civilian properties” as a form of “collective punishment contrary to international law,” “disproportionate and indiscriminate attacks,” “grave violations of the human rights of the Palestinian civilian population,” and “military aggressions.” The resolution mentions Israel 18 times. Hamas is not mentioned once.

Not if we consider that Schabas, the activist chairman who says that he “devoted several months of work” to the project, is someone who performed undisclosed paid legal work for the PLO—on the subject of how to prosecute Israelis in international courts—and who famously declared barely three years ago that the leader he most wants to see in the dock at the International Criminal Court is Israeli Prime Minister Benjamin Netanyahu.

And—as the cautionary tale of lawfare general Grietje Baars as the key author of the original Goldstone Report makes clear—not if we consider the outsized role played by OHCHR in compiling the evidence, processing submissions, and picking the people to draft the report’s chapters and conclusions. Everything we now know about how OHCHR engineered the travesty of the original Goldstone Report indicates that Goldstone II will suffer the same politically-motivated fate.

In fact, the OHCHR’s bias was manifest from day one in their agency chief’s farcical selection of Schabas—of all the law professors in the world—to lead the inquiry. OHCHR knew that, a few months earlier, he had been rejected by a committee of five ambassadors for a similar UN mandate to investigate Israel—on the grounds that he lacked impartiality. Georgetown Law School professor Christine Cerna, herself a one-time UN candidate, has stated that Schabas was chosen specifically because of his well-known positions against Israel. Even Aryeh Neier, a colleague of Schabas at Sciences Po in Paris, founder of Human Rights Watch, and an NGO icon known as a defender of the UN, said of Schabas, “Any judge who had previously called for the indictment of the defendant would recuse himself.” The same OHCHR that recruited Grietje Baars to staff Goldstone I chose Schabas to head Goldstone II.

Originally appeared inThe Toweron March 10, 2015.