Who is the war criminal?

The absence of real civilian casualties on Israel’s side in no way minimizes the gravity of Hamas’ actions under international law.

By DAPHNÉ RICHEMOND-BARAK
Smoke rises following what witnesses said was an IAF air strike in the east of Gaza City. (photo credit: REUTERS)
Smoke rises following what witnesses said was an IAF air strike in the east of Gaza City.
(photo credit: REUTERS)
Operation Protective Edge demonstrates in full force the complexity of today’s wars – not just for Israel, but for every liberal democracy that cherishes the value of life and finds itself fighting against an enemy unrestrained by any apparent moral or humanitarian considerations.
Over the course of July, Hamas has shown the breadth of its capabilities, from long-range rockets aimed indiscriminately at civilian population centers, to amphibious forces capable of surprise attacks, drones, and tunnels extending into Israeli communities. But beyond Hamas’ violent and inhumane activities, the organization has once again asserted itself as a major player in the region and in the Sunni world, commanding the attention of Arab and Western media, leaders from the White House to the Gulf, and crowds of demonstrators in the Middle East, Europe and beyond.
Because of Israel’s perceived relative strength, Hamas’ barrages of rockets into Israeli cities, its use of human shields resulting in the deaths of countless innocents, its attacks by tunnel and sea, and its violation of the cease-fire have failed to convince the world that Israel is fighting for the survival of its population. The foreign media continues to blame Israel – demonstrating a blunt misunderstanding of what international law stands for and what Hamas embodies.
Hamas is designated a terrorist organization by the United States and the EU and is recognized by nearly all Western nations (and much of the Sunni Arab world) as the chief impediment to the Palestinians’ own aspirations in Gaza. Hamas took over Gaza in 2007, two years following Israel’s withdrawal (or “disengagement”) from the Gaza Strip in 2005.
Israel removed thousands of Israeli residents, businesses, and all military and governmental personnel, allowing Gaza for the first time in hundreds of years (during Turkish, British and Egyptian occupation) to rule its own destiny.
Since then, Hamas marshaled Gaza’s limited resources to turn the impoverished Strip into a virtual military complex, using hundreds of thousands of tons of cement not to build homes for its people, but to tunnel into Israeli communities in order to attack and kill civilians and soldiers. The productive fields and greenhouses that Israel left behind in 2005, the villages Israel evacuated, and the administrative facilities built during the years after Israel’s seizure of Gaza from Egypt, were either destroyed, degraded, or put in the service of Hamas’ war machine.
More than ever, the present conflict ascertains the daunting reality of Hamas’ modus operandi.
Although Hamas increasingly possesses the technology enabling it to spare civilians from fire, it continues to strike blindly in the direction of civilian populated areas. While international law tolerates collateral damage that is not excessive in relation to the military advantage anticipated, it condemns in the highest terms the intentional targeting of civilians.
With the same objective in mind – the targeting of civilians – Hamas’ tunnels reach into the homes and communities of Israeli citizens in villages located near the Gaza border. Unlike the tunnels found by the US in Afghanistan and by France in Mali, Hamas’ tunnels are built under and in the midst of populated areas.
The location of the tunnels not only makes it virtually impossible for Israeli forces to find and destroy them without causing significant civilian casualties, it also constitutes a violation of international law: they aim at protecting Hamas operatives and their weaponry from attack, while placing civilians at risk. Just like Hamas uses children as human shields to protect its operatives, it uses tunnels built beneath civilians’ homes to protect its rocket launchers and other deadly equipment.
By operating from within civilian areas, from hospitals, mosques, schools and refugee camps, Hamas threatens the lives of its own people and of all civilians in conflicts everywhere. Hamas also jeopardizes the credibility of the United Nations as a whole by storing weapons in UNRWA schools and violating the immunity of premises protected by international law.
These elements are often forgotten, leading the public to believe that Israel targets Gaza unjustly. All this is not to say that Israel is immune to mistake and bad decisions – like all other states and armies. But it is important to understand the extent of the threat Israel is facing before reaching hasty and convenient conclusions about who is violating international law and whose side one is on.
When Europeans demonstrate in the streets of Paris or Berlin, they must understand that they are expressing their support for Hamas – the terrorist organization I just described. They do no demonstrate in favor of Palestine, in favor of the right of people to self-determination, in favor of a two-state solution, or against the occupation. They come to the streets in favor of a terrorist organization threatening each and every one of us wherever we live – an organization that uses children to dig tunnels and uses tunnels to kill children in their own beds and backyards.
Whether or not Hamas succeeds in killing Israelis, it violates international law by intentionally targeting civilians, repeatedly infringing upon Israeli sovereignty (by air, land and sea), and terrorizing the population.
The absence of real civilian casualties on Israel’s side in no way minimizes the gravity of Hamas’ actions under international law. One cannot but wonder how the Iron Dome, a system designed to prevent war crimes from materializing, could have had the effect of removing these crimes from the public consciousness.
The tears of Israeli and Palestinian mothers symbolize the absolute human tragedy this war has brought about. But it is not a senseless or unjust war. Israel finds itself under a tangible and daily threat. While mindful that civilians in Gaza are held hostage to a violent government that sacrifices them for media attention and political relevance, Israel cannot stand still while missiles rain down on its cities and terrorists tunnel through to Israeli communities in order to kill Israelis in their own kitchens and backyards. The scope of Hamas’ disregard for human life and for international law brings home the true meaning of war crimes and the breadth of the challenge facing Israel when contending with such an enemy.
The author is the head of the International Law Desk at the International Institute for Counter-Terrorism (ICT), IDC Herzliya.