Note the subhead: "The armed Islamist group committed war crimes on Oct. 7, experts say, and continues to do so by holding hostages."
This is true. And it is enormously misleading.
When the media, the UN or NGOs accuse Hamas of war crimes, they limit their criticism to October 7 and the continued holding of hostages. This article is no exception.
But Hamas violates many laws of war that are not being even mentioned in the thousands of articles, reports and speeches about Gaza.
Here are some:
1 Misuse of Ambulances with Red Cross/Crescent markings- Hamas uses ambulances as limousine services to transport its fighters. Under Article 23(f) of the 1907 Regulations annexed to the Hague Convention IV Respecting the Laws and Customs of War on Land, which reflects customary international law, it is ―especially forbidden…[t]o make improper use of a flag of truce, … as well as the distinctive badges of the Geneva Convention.. Article 44 of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) also provides that: ―… the emblem of the Red Cross on a white ground …may not be employed, either in time of peace or in time of war, except to indicate or to protect the medical units and establishments…"
2. Misuse of Medical Facilities - Hamas used hospitals and medical facilities as spaces for weapons caches. It used electricity and infrastructure from hospitals in tunnels underneath them. It fought battles from hospitals. Rule 28 of Customary IHL says, "Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy."
3. Staging of Attacks From Residential Areas and Protected Sites: The Law of Armed Conflict not only prohibits targeting an enemy‘s civilians; it also requires parties to an armed conflict to distinguish their combatant forces from their own civilians, and not to base operations in or near civilian structures, especially protected sites such as schools, medical facilities and places of worship. As the customary law principle is reflected in Article 51(7) of Additional Protocol I: '―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 attempts to shield military objectives from attacks or shield, favour or impede military operations."
4. Use of Civilian Homes and Public Institutions as Bases of Operation - Hamas has placed weapons caches in schools and mosques, it has put thousands of tunnel entrances inside residential homes. See (3) for citations.
5. Booby-trapping of Civilian Areas - Hamas has placed bombs in residential homes to kill IDF soldiers. See (3) for citations.
6. Blending in with Civilians - Hamas doesn't even pretend to wear uniforms. All their videos show them wearing civilian clothing. Since they positioned weapons caches all over civilian areas, they shoot weapons and then leave them so they can feign being civilians and enjoy protected status as civilians. Additional Protocol I defines perfidy as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence”. Perfidy includes "simulation of civilian status because civilians not taking a direct part in hostilities [that] may not be the object of attack ."
7. Use of Human Shields - As the ICRC rule states, "It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives." This is the basis of Hamas' entire military strategy. Gazans are literally used as shields - mere objects meant to protect Hamas military tunnels and bunkers from Israeli airstrikes.
8. Interference with Humanitarian Relief Efforts - Hamas has fired rockets at the Kerem Shalom crossing where humanitarian goods are brought into Gaza. It has diverted aid trucks for its own needs. It taxes the incoming aid meant to be given for free to Gazans. All of these actions violate the Law of Armed Conflict, which requires parties to allow the entry of humanitarian supplies and to guarantee their safety. Article 59 of the Fourth Geneva Convention requires parties in an armed conflict to "permit the free passage of [humanitarian] consignments and shall guarantee their protection." Article 60 of the same Convention protects the shipments from being diverted from their intended purpose.
9. Using the uniform of the enemy - This was done on October 7. Additional Protocol I prohibits the use of enemy flags, military emblems, insignia or uniforms “while engaging in attacks or in order to shield, favour, protect or impede military operations”.[3] Under the Statute of the International Criminal Court, “making improper use … of the flag or of the military insignia and uniform of the enemy” constitutes a war crime in international armed conflicts when it results in death or serious personal injury.[4]
10. Hamas‘ rocket attacks directed at Israel‘s civilian population centers deliberately violates the basic principle of distinction. (Additional Protocol I, arts. 48, 51(2), 52(1).) It is well accepted in customary international law that ―[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities constitutes a war crime. (Rome Statute, art. 8(2)(b)(i)).
11. Indiscriminate attacks - Besides targeting civilians and civilian objects, Rule 11 of the ICRC CIHL states flatly that "Indiscriminate attacks are prohibited." By definition, every rocket attack is by its very nature indiscriminate. Note also that the rockets are built to spread shrapnel as far and wide as possible.
12. Violence aimed at spreading terror among the civilian population - Rule 2 of ICRC's Customary IHL is "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." It quotes Article 51(2) of Additional Protocol I prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”. Hamas rockets are aimed not only at killing civilians, but at spreading terror among Israelis. In addition, Hamas and Islamic Jihad are continuously attempting to mount terror attacks from the West Bank to terrorize Israelis.
13. Advance Warning - Rule 20 of the ICRC CIHL states "Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit." In the past, Hamas has used the media and SMS calls to threaten Israelis, so it is clear that they have the ability to warn before every rocket attack. Their failure to do so is a violation of IHL.
This is all in addition to the other Hamas violations against the hostages beyond keeping them in captivity - not respecting the dead and sexual abuse. Also, Hamas military strategy is to capture more hostages, an additional war crime even when done against soldiers.
There is also evidence of Hamas directly attacking its own civilian population, as well as the many rockets that fell short in Gaza in the first months of the war causing casualties.
I would also argue that Hamas' using of the Gaza health ministry as a propaganda tool to spread lies also is a violation of misusing medical facilities for military purposes.
While the media, including this NYT article, goes into great detail on alleged Israeli war crimes, they ignore virtually all of these Hamas war crimes. It is hard to escape the conclusion that they only mention the worst of the worst of Hamas crimes to pretend to be even-handed, but they have little interest in discussing the many other war crimes of Hamas. It is interesting to note that rocket fire was the fig leaf used by NGOs in the past to pretend that they are also criticizing Hamas, not just Israel, but even though Hamas continues to shoot rockets when it can, those war crimes are hardly even mentioned anymore.
