23 Winter 2025 are not military objectives; treacherously killing or wounding individuals; declaring no quarter will be given; pillaging a town or place; committing outrages upon personal dignity, in particular humiliating and degrading treatment; and rape. Hamas has for many years, including during the current war, committed war crimes by using the civilian population in Gaza and civilian facilities including schools, hospitals, and ambulances as shields.10 Article 8(2)(b)(xxiii) of the Rome Statute prohibits “[u]tilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.” This prohibition derives from Article 51(7) of the Additional Protocol I to the 1949 Geneva Conventions, which provides: 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 in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. Hamas deliberately launched rockets at Israel from mosques, schools, residential buildings and other civilian areas, hoping to draw Israeli reprisal attacks against civilians used as human shields, in a cynical but so far successful effort to galvanize international condemnation of Israel. Indeed, Hamas has declared publicly for many years that sacrificing innocent Palestinian civilians is a key element of its strategic doctrine. Hamas official Fathi Hammad, in a speech on February 29, 2008, celebrated using civilians as human shields, boasting: For the Palestinian people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have formed human shields of the women, the children, the elderly, and the mujahideen in order to challenge the Zionist bombing machine.11 Hamas leader Khaled Mashal repeated the claim in a televised interview on Al Arabiya television on October 20, 2023, where he bragged about sacrificing Gazan civilians.12 Crimes of Aggression The Hamas attacks constituted the following crimes of aggression in violation of Article 8 bis of the Rome Statute: invasion or attack by a State against the territory of another State; bombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State; the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to war crimes. Israel’s Lawful Right to Self-Defense Ever since June 2007, when Hamas took power in the Gaza Strip, Hamas has launched thousands of rockets indiscriminately targeting Israeli civilians, school, hospitals, and apartment buildings. Every such attack has triggered Israel’s legal right to defend itself, pursuant to Article 51 of the United Nations Charter, which provides, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations . . .” In the Nicaragua case, the ICJ made clear that terrorist strikes such as the Hamas attacks constitute an “armed attack” triggering the Article 51 right to self-defense: In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across 10. NATO Strategic Communications Centre of Excellence, “Hamas’ Use of Human Shields in Gaza” (June 6, 2019), available at https://stratcomcoe.org/pdfjs/?file=/ publications/download/hamas_human_shields. pdf?zoom=page-fit 11. H. Adelman, “Research on the Ethics of War in the Context of Violence in Gaza,” 7 J. OF ACAD. ETHICS. 110, 93-113 (2009). 12. “Hamas official says group ‘well aware’ of consequences of attack on Israel, Palestinian liberation comes with ‘sacrifices,’” ARAB NEWS (Oct. 21, 2023), available at https://www.arabnews.com/node/2394966/middle-east
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