Jerusalem—Hamas is clearly guilty of war crimes in its current round of fighting with Israel, according to a prestigious Jerusalem think tank, the Israel Democracy Institute (IDI).
"Rocket attacks against unprotected Israeli civilians who do not pose a concrete military threat," said a report issued yesterday by the IDI, "are a clear violation of international law and impose individual criminal responsibility on the perpetrators of the launchings. In addition, deliberately hiding among a civilian population and using civilians—including women and children—as human shields is also a war crime."
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The legal opinion from some of Israel’s leading authorities on legal aspects of asymmetrical warfare is intended to set out what is permissible and what is not when one side in a conflict is the army of a state and the other side does not represent a state and fights unconventionally.
"The most basic principle of the law of war" is to distinguish between civilian targets and military targets. "It is strictly forbidden to direct attacks at civilian targets." This principle has clear relevance to the firing by Hamas and other Gaza militants of close to 1,000 rockets at Israeli cities and villages, with the object of causing as many casualties as possible among the civilian population.
Hamas combatants, who are technically "civilians taking direct part in hostilities," are legitimate targets, according to international law. However, Hamas members engaged in civilian activities—social welfare, food providers, medical services—are not legitimate targets unless they also take part directly in hostilities.
"Each case must be decided on its own merits according to the available information," the report said.
Civilian structures used for military purposes fall under the same rubric.
"A mosque being used to store weapons is a legitimate target during combat, provided there is convincing evidence that the mosque is being used for a clear military purpose that is aiding Hamas," the report found.
At least one mosque was bombed during the current operation, according to media reports. On the other hand, homes that are not being used for military purposes cannot be fired on nor can the homes of terrorists, who are not present at the time, be attacked "just to frighten the family members and civilian population."
It is incumbent on the combatants, under international law, to warn civilians on the other side before an attack "unless circumstances prevent such a warning." Israel has made it a practice to contact residents of targeted homes or neighborhoods before an attack by telephone, leaflets dropped by planes, or small rockets without explosives fired at roofs.
"The fact that Hamas does not allow civilians to leave the area does not release Israel from its responsibility to protect civilians from harm to the best of its ability," and it must also be clear that the residents of these houses have somewhere to evacuate to.
The report said there is no legal prohibition against military action that would harm civilians "as long as the target is a legitimate military target."
Referring to the legal concept of "proportionality," the experts said that prohibition of such an attack applies only when the collateral damage to civilians is likely to be "excessive" in relation to the likely military advantage of destroying a target. The report notes that the Israel Defense Forces in the current conflict has released a series of videos that demonstrate that bombing missions were aborted when civilians were identified in the vicinity of the target. An army is obliged to make use of technologies now available in order to assess whether such an attack would be "proportional," it said.
In its conclusion, the report said that Israel is bound by the international laws of war.
"The fact that terrorist organizations abuse and violate international law does not exempt Israel from abiding by it. Complying with the rules is vital both to enable Israel to preserve its moral advantage over terror organizations and to ensure the international legitimacy of Israel’s actions," the report said.
Members of the panel included professor Mordechai Kremnitzer of Hebrew University, professor Amichai Cohen of Ono Academic College, Eli Bahar, former legal advisor to the Shin Bet Security Agency, and former Knesset member Yohanan Plesner.