Indicting Hamas for War Crimes

Hamas must be indicted in the International Criminal Court for crimes against humanity and war crimes. Evidence of Hamas’s crimes in the Gaza Strip has been visible for a decade to anyone not blinded by an obsessive commitment to an anti-Israeli or anti-Semitic outlook.  It is now obvious to the head of the United Nations, even as it is denied by the U.N. Human Rights Council; by Navi Pillay, U.N. High Commissioner for Human Rights; by Turkish Prime Minister Recep Tayyip Erdoğan; and by all those dedicated to the demonization or destruction of Israel

The truth has been revealed, unexpectedly, by two organizations: the European Union and the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA), a body that challenges the United Nations Human Rights Council for the title of the most worthless international organization in the world.

At the meeting on July 22, 2014, the 28 foreign ministers of the EU declared that the indiscriminate firing of rockets into Israel by Hamas and militant groups in the Gaza Strip, directly harming civilians, constituted “criminal and unjustifiable acts.”

One can paraphrase the quote from Oscar Wilde.  To find unexpectedly hidden in one of the UNRWA schools in the Gaza Strip a batch of 20 rockets on July 16, 2014 that Hamas was planning to fire against Israeli civilians may be regarded as a misfortune; to find a second batch of rockets in another UNRWA school three days later looks like carelessness.  Wilde might also have mentioned incompetence.  UNRWA said it was unable to confirm the precise number of rockets in the second school.  Nor did it mention any other of the UNRWA schools that have been misused, with or without its knowledge or approval, to house weapons to be used by Hamas.

UNRWA may well be the only group of individuals “shocked” at these “discoveries” known previously to every objective observer of Middle Eastern affairs.  The naive UNRWA did issue a statement that it “strongly and unequivocally condemns the group or groups responsible for this flagrant violation of the inviolability of its premises under international law.”  Yet it appeared uninformed of the name of any such group.  In fact, declaring that it was doing so in order to preserve the safety and security of the schools under its auspices, UNRWA handed the rockets in its schools back to unnamed “local government authorities in Gaza.”  The “authorities” turned out to be the terrorist group Hamas.

UNRWA officials, after being caught out by their “discoveries,” stressed the importance of neutrality on all premises.  What neutrality?  They refuse to acknowledge their partisanship: the use of UNRWA schools for stockpiling weapons and as alleged bases for firing rockets.  Those officials do not concede that Hamas has used its facilities to commit war crimes by attacking Israeli civilians while it uses schoolchildren as human shields, and operates the schools to safeguard its rocket facilities.

UNRWA, at a minimum, has been irresponsible in turning a blind eye to Hamas crimes.  Instead, it called for an investigation after a girls’ school, believed to be hiding rockets, was shelled by Israel.  UNRWA discounts the Israeli behavior that contrasts so strongly with that of Hamas.  Israel, in Operation Protection Edge, issues warnings; drops leaflets to Gaza civilians; and sends phone, TV, and radio messages before its attacks.  The level of Gaza civilian causalities is disquieting, and no doubt mistakes have been made, as in all wars, but the level is the consequence of Hamas’s use of civilians as shields, and its putting weapons systems in populated areas.  UNRWA should be aware that Israel has set up a field hospital near the Erez Crossing to treat wounded Palestinians, an act it had done once before in January 2009.

U.N. Secretary-General Ban Ki-moon witnessed the reality for himself.  In Jerusalem on July 22, 2014, he declared it “quite shocking” to see all kinds of rockets fired by Hamas and Islamic Jihad on “the heads of all the people and neighborhoods where many people are living.”  No country, he added, would accept rockets raining down on its territory.  A day later, on July 23, 2014, Ban Ki-moon also expressed outrage and regret at the placing of weapons in a U.N.-administered school.  Those responsible, he said, are turning schools into military targets and endangering the lives of innocent children.

The Obama administration has not been as forthright as it should be on this issue.  The call by some administration officials for the disarming of Hamas is a pious aspiration.  In similar manner, the State Department spokesperson, Marie Harf, explained that UNRWA was "a relief organization, not a peacekeeping organization that can deal with rockets.”  UNRWA does offer relief to Palestinian refugees, but it also runs a children’s summer camp that includes recitals of chants with the words “we have to liberate Palestine.”  UNRWA has 30,000 employees, some of whom are supporters of Hamas.  The textbooks used in its schools have sometimes referred to Jews as pigs and monkeys, and they contain implications that action against the State of Israel is heroic.

It was surprising that Secretary of State John Kerry stated on July 21, 2014 that the U.S. was planning to grant the Gaza Strip $47 million in humanitarian aid, $15 million of which will be distributed by UNRWA.  The U.S. administration is aware of the extent and the considerable number of “offensive tunnels” built by Hamas to infiltrate Israeli territory.  Some calculations are that each tunnel costs $1 million to build and uses large quantities of concrete, material that could be put to better use for civilian housing, which is sadly lacking.  One tunnel is located under the al-Wafa hospital, where Hamas has a command post and stores weapons.  Can Secretary Kerry ensure that the $47 million will be used only for civilian housing?

What the United States administration and the U.N. secretary-general should be doing is indicting Hamas before the International Criminal Court.  The Court was established on July 1, 2002 on the principles adopted by the Rome Statute on July 17, 1998.  The Court has jurisdiction over genocide, crimes against humanity, and war crimes.  This jurisdiction is applicable to acts committed as part of a widespread or systematic attack directed against any civilian population.

In its behavior towards Israel, Hamas is guilty of both crimes against humanity and war crimes according to Article 7(1) of the Rome Statute, which applies to murder and extermination.  Hamas is guilty of a government policy in which those two crimes are part of a widespread or systematic practice.  Its actions are more than isolated inhumane acts and constitute a consistent pattern of behavior.  The stated aim of Hamas is not simply to harm Israeli civilians, but rather a policy of genocide, the killing of Jews, and the elimination of the State of Israel.  Hamas has really only one grievance: the existence of Israel.

Article 8(2)(b) of the Rome Statute deals with the war crime of using protected persons as shields.  Hamas has been guilty on numerous occasions of this crime – the intention to shield a military objective from attack or shield, favor, or impede military operations.  The major war crime of Hamas is to use children for this purpose.  Golda Meir, in her straightforward manner, once commented, “We will only have peace with the Arabs when they love their children more than they hate us.”  In contrast, Hamas has stated that preserving the capacity to bomb civilians in Israel is more valued than the loss of Palestinian children.

Those children have been used not only as human shields to protect the terrorists.  They have also been used for actions such as being messengers and couriers for the terrorists, for digging tunnels into Israel, and for smuggling.  Hamas has used them for military activities, including throwing grenades and rocks, and even for suicide bomber missions.  Schools and kindergartens have been used to store missiles and mortars and as launching sites, in the same way as hospitals, mosques, and public places have been used.  The sad reality is that Gaza children do not dream of becoming rocket scientists; they dream of firing rockets and becoming holy martyrs.

There is ample evidence to present to the International Criminal Court, including the outspoken statement of the U.N. secretary-general, the discovery that tunnels used for aggression are located under hospitals and private property, and the videos of Hamas actions.  One video clearly shows rockets being fired next to civilian buildings.  Another shows a demonstration of human shields as civilians were forced to gather on top of the home of a known Hamas terrorist to prevent an attack by Israel.  Ban Ki-moon has spoken of the need to address the “root causes” of instability in Gaza.  A case brought against Hamas before the International Criminal Court would find that the basis of instability in Gaza is the crimes against humanity and the war crimes committed by Hamas.

Michael Curtis is author of Jews, Antisemitism, and the Middle East.

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