Violations and Response by Hamas

Laws-of-War Violations by Hamas

Hamas and other Palestinian armed groups have launched thousands of rockets into Israel since 2001, killing 15 civilians, wounding many more, and posing an ongoing threat to the nearly 800,000 Israeli civilians who live and work in the weapons’ range. During the 22-days of fighting in December 2008 and January 2009, rocket attacks killed three Israeli civilians, wounded scores more, and caused damage to civilian infrastructure. Two Palestinian civilians in Gaza also died when a rocket misfired.

Throughout the fighting, Palestinian-fired rockets struck populated areas up to 40 kilometers inside Israel, with some reaching the outskirts of Tel Aviv. On December 27, 2008, a rocket launched from Gaza killed Beber Vaknin, a 58-year-old window installer in Netivot. On December 29, a Grad-type rocket struck the city of Ashkelon, killing Hani al-Mahdi, 27, a construction worker from the Bedouin village of Aro’ar, and wounding several others. That same day, a rocket launched from Gaza hit a car in the city of Ashdod, killing Irit Sheetrit, a 39-year-old school secretary, and wounding her sister. Hamas’s armed wing, the Izz al-Din al-Qassam Brigades, claimed responsibility for all three attacks.[1]

Some Hamas officials have claimed that the rockets were aimed only at military targets, saying that civilian casualties were the accidental result of the weapons’ poor quality. But statements by Hamas leaders suggest that the purpose of the rocket attacks was indeed to strike civilians and civilian objects.[2]

A spokesman for the Qassam Brigades, identified as Abu Obeida, for example, said in a video released on January 5, 2009 that “continuing the incursion will only make us increase our rocket range [...]. We will double the number of Israelis under fire.” [3] Hamas leader Mahmoud Zahar, in a speech broadcast the same day, said, “The Israeli enemy ... shelled everyone in Gaza. They shelled children and hospitals and mosques, and in doing so, they gave us legitimacy to strike them in the same way.” [4]

Whatever the intended target, Qassam and longer-range Grad rockets launched from Gaza have no guidance system. These rockets cannot be aimed in a manner that distinguishes between military targets and civilians and civilian objects, making them indiscriminate weapons when fired at populated areas. This makes their use against populated areas of Israel violations of the laws of war.

In some cases, the rockets fell short and struck Gaza. On December 26, 2008, a Palestinian-fired rocket hit a house in Beit Lahiya, killing two Palestinian girls, Sabbah Abu Khusa, 12, and Hanein ’Ali Abu Khusa, 5, and injuring another child.

The laws of war require parties to a conflict to take all feasible precautions to spare civilians from the dangers of military operations. While fighting in urban areas is not prohibited under the laws of war, parties to a conflict are obligated to avoid placing military targets within or near densely populated areas. Hamas and other Palestinian armed groups at times violated the laws of war by unnecessarily firing rockets from within densely populated areas, placing Palestinian civilians at risk of Israeli counter-attacks. Forces that occupy homes, schools or other presumptively civilian structures make those structures military objectives subject to attack. Palestinian forces occupying such buildings have an obligation to take feasible measures to remove the civilians in the vicinity from them. Forces that deploy behind civilians deliberately to deter attacks are committing “human shielding,” which is a war crime. In the 53 civilian deaths in Gaza investigated by Human Rights Watch – chosen to document civilian deaths that resulted from IDF military policies – Palestinian fighters were not in the area at the time of the attack. In other cases, however, fighters may have fired rockets from areas close to civilians with the intention of deterring Israeli forces from counter-attacking.[5]

Palestinian armed groups in Gaza that have claimed responsibility for firing rockets into Israel include Hamas’s Izz al-Din al-Qassam Brigades, Islamic Jihad’s Al-Quds Brigades, the Fatah-aligned al-Aqsa Brigades, the Popular Resistance Committee’s Salah al-Din Brigades, and the Abu Ali Mustafa Brigades of the Popular Front for the Liberation of Palestine. Hamas and Islamic Jihad have been responsible for the majority of rocket attacks, and together claim to have fired 820 rockets from December 27, 2008 to January 18, 2009. [6]

In addition, armed gunmen in Gaza, apparently affiliated with Hamas, used unlawful lethal force against alleged collaborators and political opponents during and after the Gaza conflict, killing at least 32 people from December 2008 to March 2009.[7] Human Rights Watch documented the deaths of Zaher Ahmad al-Za’anin, 40, Jamil Shakura, 51, Nihad Sa’adi al Dabbaka, 47, and Ata Yusif Abd al-Wahhab al-Bur’I, all of whom died apparently as the result of torture following their apprehension or abduction by persons claiming to work for Hamas Internal Security or other Hamas security forces. Masked gunmen during and after the conflict also severely beat or shot Palestinians in the legs with the intent to maim.

The Goldstone report also documented the above violations. Regarding the rocket attacks into Israel, the report said the attacks amounted to “the commission of an indiscriminate attack on the civilian population of southern Israel, a war crime, and may amount to crimes against humanity.”[8]

The Goldstone report also addressed whether and to what extent Palestinian armed groups took all feasible precautions to protect civilians in Gaza from the dangers of military operations. The report concluded that Palestinian armed groups launched rockets from urban areas but it found no direct evidence that this was done with the intent of shielding the rocket launchers from counter-attack.

Response by Hamas

Over the past year, Hamas spokespersons have said that the Gaza authorities would investigate allegations of laws-of-war violations by the Izz al-Din al-Qassam Brigades and other Palestinian armed groups. To date, however, no Palestinians are known to have been punished for wartime abuse. As described below, a Hamas report to the United Nations in January 2010 concluded that Palestinian fighters in Gaza fully complied with international humanitarian law.

Since the fighting ended in January 2009, Hamas has rejected criticisms of its conduct during the war. It said, for example, that a Human Rights Watch report about its rocket attacks on Israeli population centers “exempts the occupation from the crimes it committed” and was “lacking objectivity and impartiality.”[9] A Human Rights Watch report on the torture and killing of Palestinians in Gaza during the war was dismissed because it was “inaccurate and hastily-released,” and it “harms the policies of [the] Hamas movement in [the] Gaza Strip.”[10]

Hamas cooperated with the UN fact-finding mission and its reaction to the mission’s report was mixed. It criticized the report for equating “the victim” (Palestinians) with “the aggressor” (Israel). At the same time, it praised the report for highlighting many laws-of-war violations by Israeli forces, and said it would implement the recommendations of the report pertaining to Hamas.

On October 1, 2009, a senior Hamas official, Ahmad Yusuf, said that Hamas would “try to do our best” to investigate allegations of violations. He also claimed that “Hamas has said all the time that they were targeting military bases” rather than civilians. “Maybe because these are primitive weapons -- the rockets, because they're homemade -- maybe some of these rockets missed their targets, some of them fell short,” he said.[11]

On October 14, two days before the UN Human Rights Council endorsed the Goldstone report, Gaza Prime Minister Ismail Haniya praised the report and said, “My government will spare no effort to implement any recommendations that the UN would come up with.”[12]

On October 15, foreign ministry officials in Gaza elaborated on Haniya’s statement. “Although we do not agree with certain aspects of his [Goldstone’s] report, we intend to act on his recommendation and to carry out our own investigation into any alleged crimes committed by members of the resistance movements in Gaza,” a statement said.[13] Hamas spokesperson Taher al-Nounou repeated this view, saying that the government pledged to begin investigating the recommendations of the report.[14]

The Gaza-based Palestinian Centre for Human Rights welcomed Hamas’s announcement, calling it “a first step towards upholding victims’ rights and enforcing the rule of the law.”[15]

Human Rights Watch wrote to the Hamas government five days later, urging Prime Minister Haniya to “conduct thorough, independent and impartial investigations” and to “prosecute in conformity with international fair trial standards those found responsible for rocket attacks that target Israeli population centers.” (See appendix.) As of April 7, 2010, Human Rights Watch had received no reply.

In the letter, Human Rights Watch also asked for clarification about Ahmed Yusuf’s statement that Hamas was targeting Israeli military objectives and not civilians, noting that his comments ran counter to previous statements by Hamas leaders.

In the past, leaders of Hamas and other Palestinian armed groups have sought to justify attacks against Israeli civilians as legitimate reprisals for Israeli attacks against Palestinian civilians.[16] In other cases, Hamas leaders seemed to acknowledge that rocket attacks targeted Israeli civilians but claimed the attacks were justified as part of their resistance tactics against Israeli occupation.[17]

While Human Rights Watch received no reply to its letter, the media reported comments about it by Hamas officials on October 21. Yousef Rizka, an advisor to Prime Minister Haniya, told reporters that Hamas “will carry out all of Goldstone’s recommendations involving the Hamas-mandated Gaza Strip.”[18] He added that Human Rights Watch “should have sent its letter to Israel” because so many more Palestinians than Israelis died. He said that Hamas and the Gaza government urged the Palestinian armed groups not to target Israeli civilians and any harm to non-combatants was most likely due to the poor quality of the Palestinian rockets.

A few days earlier Rizka said that Hamas’s minister of justice, Faraj al-Ghoul, had been tasked with leading an investigation into the allegations contained in the Goldstone report. He did not say when the minister would complete the investigation.[19] Al-Ghoul later confirmed that he had formed a committee to look at the findings of the report.[20]

On November 5, 2009, the UN General Assembly endorsed the Goldstone report and called on both sides to conduct credible independent investigations within three months -- that is, by February 5, 2010. Hamas welcomed the resolution and again said it would form a committee to examine its implementation.[21]

On November 23, 2009, Human Rights Watch sent a second letter to Prime Minister Haniya, requesting information on the status of Hamas’s investigations (see appendix). As of April 7, the Hamas authorities had not responded.

A subsequent statement by a top Hamas leader outside of Gaza placed the group’s willingness to conduct an impartial investigation in doubt. On December 2, 2009, Musa Marzouk, deputy chair of the group’s Political Bureau, told a Saudi newspaper that the Goldstone report “exonerates Hamas from any wrongdoing.”[22] He did not comment on the previously announced government committee.

On January 16, 2010, 11 Palestinian human rights organizations, concerned about the lack of domestic Palestinian inquiries, called on the Palestinian authorities in Gaza and the West Bank to conduct independent investigations into the allegations contained in the Goldstone report. “We urge both the Palestinian authorities in the West Bank and Gaza to immediately commence credible internal investigations in compliance with international standards and in accordance with the Report by the Fact-Finding Mission on the Gaza Conflict,” identical letters to Palestinian Authority President Mahmoud Abbas and Hamas Prime Minister Ismail Haniya said. The letter continued: “We urge you to immediately take clear and public steps toward holding all those who prove to be responsible for the violations detailed in the Report to account.”[23]

On January 27, Hamas released the summary of the report prepared by Minister al-Ghoul’s committee, which said that Hamas “has on more than one occasion called on armed Palestinian groups to avoid targeting civilians,” and that any civilian casualties resulted from “errant fire.” [24] A media statement accompanying the report summary said: “Despite the certainty that there were no international humanitarian law or human rights violations amounting to war crimes, the committee opened its doors wide to receive people’s complaints, investigate them to the fullest extent, and prosecute the perpetrators in accordance with Palestinian law.” [25]

On February 3, Hamas gave the UN secretary-general its full 52-page report that rejected allegations it had committed war crimes during the Gaza war. In its response, Hamas expressed its “commitment to the principles of international law with regard to the protection of civilians” and said that any civilian casualties from its rocket attacks were unintended. According to the report, Palestinian armed groups in Gaza:

[w]ork as hard as possible in order not to expose civilians to any harm, but it shall be known that the Palestinian resistance – even though it is a resistance organization – is not a regular army with technologically advanced weapons, so the resistance might set a military target and the fire deviate a little or a lot and thus might impact near a civilian site, despite the efforts to keep the civilians safe. We assure you that the resistance does not deliberately set civilian targets, and that it deals with unintended incidents.[26]

The report also tried to justify the rocket attacks as a political strategy, saying that “civilian victims in Israel were not meant to be targeted by the resistance because the ongoing launching of rockets was a political challenge against the Israeli aggression, which claims that it [the military operation] was intended to stop the rocket attacks.” [27]

For apparently the first time, Hamas expressed regret for the Israeli civilian victims of its attacks. “We express our sorrow for whatever happened to any Israeli civilian and we hope that Israeli civilians understand that the key starting point is the ongoing targeting of us by their government.” [28]

A Palestinian judge who helped draft the report, Diaa al-Madhoun, told the media that the expression of regret was consistent with Hamas’s commitment to international law. “It is part of our religion not to target civilians, women, children and the elderly, who do not take part in the aggression against us,” he said. [29]

At the same time, Minister of Justice al-Ghoul backtracked on the statement. “Some words or phrases were taken out of context,” he said. “The report held the [Israeli] occupation fully responsible and it did not include apologies.” [30] An unnamed senior Hamas official told the media that the expression of regret would not alter Hamas’s strategy. "There is no change in the movement's policy, and that includes our position on the martyrdom operations,” he said. [31] “Martyrdom operations” refer to suicide bomb attacks on both military and civilian targets. [32]

The Palestinian Centre for Human Rights responded to Hamas’s report, calling it “disappointing.” The report “merely confirmed that the government in Gaza has failed to establish a credible, impartial investigation committee to lead an inquiry into the allegations of the Goldstone Report,” PCHR said. [33] The organization also expressed grave concern about the credibility of Israeli investigations, which it later presented in a detailed report. [34]

Since the end of hostilities in January 2009, Hamas has largely stopped launching rocket attacks on Israel, although other armed groups have launched roughly 150 rockets, killing a 33-year-old Thai migrant worker named Manee Singmueangphon on March 19, 2010. [35] On at least two occasions Hamas has arrested members of other armed groups who carried out attacks, showing that it has the ability to impose the law when it wants. In March 2009, for example, Islamic Jihad said that Hamas security forces had arrested some of its members for firing rockets, and they were released only after promising not to engage in such attacks.[36] In July 2009 Islamic Jihad said that Hamas had arrested two more members as they were engaging IDF forces near the boundary line in eastern Gaza.[37]