142 Both prior to and during the IDF operation in Gaza, Hamas flouted the Law of Armed Conflict, terrorising Israeli citizens through an endless barrage of rocket and mortar attacks, and deliberately using Palestinian civilians, as well as protected U.N., educational, medical, administrative (so-called governmental) and religious facilities, as a cover for its operations. In adopting such methods of warfare, members of Hamas committed internationally recognised war crimes, and made it impossible for the IDF to avoid collateral damage to civilians and civilian objectives in pursuit of legitimate military objectives during the operation.

THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

V. THE USE OF FORCE - Hamas’ Breaches of the Law of Armed Conflict
B. Hamas’ Breaches of the Law of Armed Conflict and War Crimes

142 Both prior to and during the IDF operation in Gaza, Hamas flouted the Law of Armed Conflict, terrorising Israeli citizens through an endless barrage of rocket and mortar attacks, and deliberately using Palestinian civilians, as well as protected U.N., educational, medical, administrative (so-called governmental) and religious facilities, as a cover for its operations. In adopting such methods of warfare, members of Hamas committed internationally recognised war crimes, and made it impossible for the IDF to avoid collateral damage to civilians and civilian objectives in pursuit of legitimate military objectives during the operation.
143 As the evidence discussed below illustrates, the tactics and modus operandi of Hamas and other terrorist organisations offend the most fundamental legal and moral norms of human behaviour.
144 While the examples of Hamas’ violations of the Law of Armed Conflict cited in this report are far from exhaustive, they illustrate the extraordinary challenges that the tactics of Hamas posed for the IDF, as a military force committed to respecting its obligations under international law. As explained below, Hamas has violated a myriad of basic norms of International Humanitarian Law.

(1) Deliberate Rocket Attacks Against
Israeli Population Centres

145 As described in Section IV.B above, for many years Hamas engaged in deliberate, systematic and widespread use of rocket attacks, mortar attacks and suicide bombings intentionally directed at civilian targets in Israel.(139) The international community, including the United Nations, the Quartet of Middle East mediators,(140) the European Union,(141) the United States,(142) the United Kingdom (143) and many other States and international bodies, have condemned Hamas’ rocket attacks.
146 Hamas’ rocket attacks directed at Israel’s civilian population centres deliberately violated the basic principles of distinction.(144) Any doubt about this is resolved by the fact that Hamas itself has boasted of its intention to hit population centres. 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.(145)
147 In this case, numerous international observers have recognised that Hamas was intentionally engaging in deliberate attacks, in violation of the Law of Armed Conflict. Even well before the escalation of rocket attacks in 2008, the United Nations Under-Secretary General for Political Affairs condemned Hamas rocket fire on Sderot as “legally and morally wrong.”(146) The United Nations Under-Secretary General for Humanitarian Affairs stated that “there’s no justification” under the law for the firing of the rockets, because “[t]hey are indiscriminate, there’s no military target.”(147) And the U.N. Secretary-General confirmed his view that the rocket attacks in Israel were “targeting and injuring civilians.”(148)
148 Hamas deliberately targets rockets and mortar rounds at Israeli population centres and specifically intends to cause the maximum amount of civilian death and suffering. Hamas cheers when one of its rockets or mortars succeeds in hitting a civilian target, whether that be a private home or public institution. For instance, the following Hamas poster boasts of homes destroyed by missiles in Southern Israel:

Hamas poster depicting Israeli civilian homes destroyed by rocket fire
149 It is therefore clear that the purpose of Hamas’ incessant rocket attacks on Israel’s southern towns and cities, in addition to causing death, injury and destruction, is to spread terror among Israel’s civilian population. This also constitutes a serious violation of the Law of Armed Conflict. As discussed above, it is a core principle of customary international law that:
“Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”(149)

150 In sum, in launching rocket and mortar attacks against Israeli targets, Hamas is guilty of repeated and deliberate violations of the Law of Armed Conflict — and because these violations were wilful, its leaders and operatives are guilty of committing war crimes.

(2) Abuse of Civilian Sites as Cover
for Military Operations

151 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.”

152 This general prohibition applies with particular force to schools and other facilities regularly attended by children. Thus, “[c]hildren shall be the object of special respect and shall be protected against any form of indecent assault.”(150) Medical facilities and ambulances are also singled out for special protection. Thus, “[u]nder no circumstances shall medical units be used in an attempt to shield military objectives from attack.”(151) Similarly, combatants are forbidden to use places of worship such as mosques in support of military efforts.(152)
153 The reason for these rules is clear. When a party to an armed conflict uses civilian and protected spaces for military purposes, those spaces become legitimate targets for the opposing side, thereby placing civilian lives and infrastructure in grave danger. (153)
154 Despite the clear proscriptions of international law, the intentional abuse of civilian areas for military advantage is central to Hamas’ battlefield strategy. During the recent conflict in Gaza, as described below, Hamas launched rockets from near schools, used hospitals as bases of operation, stored weapons in mosques, and booby-trapped entire neighbourhoods, all in contravention of clear and specific prohibitions of international law. Hamas’ strategy was two-fold: (1) to take advantage of the sensitivity of the IDF to civilian casualties on the Palestinian side, in an attempt to deter the IDF from attacking legitimate military targets; and (2) where the IDF did attack, to wield an excellent propaganda weapon against Israel, featuring civilian casualties as well as damage to homes and public institutions. In other words, Hamas chose to base its operations in civilian areas not in spite of, but because of, the likelihood of substantial harm to civilians. The tactic did succeed in causing IDF to forego attacks on legitimate military objectives in order to protect the lives of innocent Palestinians and to preserve intact important public facilities. But in many cases, the IDF could not forego a legitimate military objective without undermining its mission and jeopardising both its soldiers and Israeli civilians. In those circumstances, the result of Hamas’ approach was to make it difficult, and sometimes impossible, for IDF forces to avoid harm to civilians and civilian structures
(a) Staging of Attacks From Residential Areas and Protected Sites

155 Hamas operatives regularly fired rockets into Israel from within or near residential and public buildings, including schools, mosques and hospitals. The following images illustrate the use of this tactic in the 18 months prior to the Gaza Operation:(154)

Left: Rockets fired at Israel from civilian areas in Beit Lahia (27 February 2008, Israeli Channel 10 TV);

Right: PRC rocket fire into Israeli territory (Muqawamah Website, 27 February 2008)

A pit from which rockets were fired in the middle of a residential area (Source: IDF Spokesperson, 29 December 2008)

Left: Rockets positioned on the roof of a house (YouTube, 11 July 2007, picture from the Izz al-Din al-Qassam Brigades propaganda bureau); Right: Mortar launcher positioned near a house (Source: Al-Aqsa TV, 26 October 2007)

Rocket launching position near public buildings in the Shati Refugee Camp (Source: IDF Spokesperson)
156 On 29 October 2007, Hamas launched a mortar attack from the yard of the central building of an United Nations Relief and Works Agency (UNRWA) educational complex in the town of Beit Hanoun in the northern Gaza Strip. The Secretary-General of the U.N. condemned this incident.(155)

Rocket launching squad positioned near the main building of an UNRWA educational complex in Beit Hanoun (Source: IDF Spokesperson, 31 October 2007)

157 A similar incident took place on 18 January 2009, immediately after Israel announced the end of its Operation in Gaza: Israeli forces identified a rocket launcher placed immediately between two school buildings. The Israeli Air Force did not attack the launcher because of its proximity to the schools, as shown on the image below.

Firing rockets near two school buildings after Israel announced it was holding its fire (Source: IDF Spokesperson, 18 January 2009)

158 Hamas activist N.A., a resident in Atatra, was arrested by the IDF during the Gaza Operation. In his investigation, N.A. admitted that Hamas operatives frequently carried out rocket fire from schools (for example, the Sakhnin school in the area of Abu Halima, and another school in the area of the al-Amal neighbourhood), precisely because they knew that Israeli jets would not fire on schools.(156)
159 During the Gaza Operation, Hamas continued to launch attacks from densely populated areas and protected sites. In fact, as IDF forces advanced into Gaza, Hamas began relying even more heavily than before on rocket and mortar launches from the midst of urban centres. Human Rights Watch, in a letter to EU Foreign Ministers, strongly condemned this practice, confirming that it has “documented cases in which Hamas fired rockets from very near populated homes or other civilian objects.”(157)
160 Newsweek vividly described one instance of Hamas’ abuse of civilian housing:
“Suddenly there was a terrific whoosh, louder even than a bomb explosion. It was another of Hamas’ homemade Qassam rockets being launched into Israel — and the mobile launchpad was smack in the middle of the four [apartment] buildings, where every apartment was full…”(158)

161 Hamas’ abuse of civilian neighbourhoods resulted in significant destruction. As Corriere della Sera reported on 21 January 2009, quoting the testimony of “Um Abdallah”:
“Practically all of the tallest buildings in Gaza that were hit by Israeli bombs… had rocket launching pads on their roofs, or were observation decks for the Hamas. They had also put them near the big UN warehouse, which went up in flames.”(159)

162 In conducting rocket attacks from within civilian sites, Hamas committed grave breaches of the principle of distinction, as well as the obligation not to put its own civilians at risk.
(b) Use of Civilian Homes and Public Institutions
as Bases of Operation

163 In addition to staging rocket attacks from civilian areas, Hamas conducted much of its fighting during the Gaza Operation from bases within private residences and public facilities, which Hamas assumed the IDF would be reluctant to attack. As documented further detailed in subsection V.B(3) below, Hamas’ main base of operations during the Gaza Operation was located inside Shifa Hospital in Gaza City, which was not attacked by Israeli forces out of concern for the inevitable harm to civilians also present in the hospital. Hamas’ decision to place the lives of hundreds of patients, doctors, and nurses in danger in this manner, however, is in clear breach of the principle of distinction and its particular application in the case of medical facilities, as described above.
164 Similarly, Hamas abused the protection accorded to places of worship, making a practice of storing weapons in mosques. During the Gaza Operation, the IDF found repeated and conclusive evidence of such use. For instance, as the photographs below demonstrate, IDF forces discovered weapons in a mosque in Jabaliya:

Weapons, including an anti-tank cannon, discovered in a Jabaliya mosque during the Gaza Operation
165 R.A., a Hamas activist arrested by the IDF during the Gaza Operation, revealed his knowledge of Hamas storage places for weapons, including the houses of activists, tunnels, orchards and mosques. In particular, he indicated, the Salah al-Din Mosque served as a storage site for rockets and other weapons.(160)
166 In some cases, IDF forces fired on mosques known to serve as weapons storehouses and bases of operation. Further confirmation that weapons were indeed stored on the premises came in the form of large secondary explosions.(161)

167 There is also considerable evidence that Hamas misused a variety of other public institutions as operational bases. I.Y.H., a resident of Beit Hanoun, was arrested by the IDF during the Gaza Operation. I.Y.H. told IDF investigators about a Hamas training camp in Khan Younis that was located in a sports complex behind the Omar Ibn Abd al-Aziz Mosque, across from the municipality, as well as rocket firing from a grove in the area of Beit Hanoun and tunnels dug in the area of Khan Younis. He also revealed knowledge of a laboratory for manufacturing explosives and rockets, located in the civil administration complex in the Jabaliya refugee camp.(162)
168 Hamas also intentionally located its military activities adjacent to sensitive sites, such as schools and U.N. facilities, or in the midst of residential neighbourhoods.(163) The following aerial photographs offer some examples:

Hamas headquarters (red) surrounded by schools (yellow) in Tel al-Hawa neighbourhood, southwest of Gaza City. In proximity to the headquarters and schools armed men were seen entering and leaving the Hamas compound (Source: IDF Spokesperson)

Hamas post and arms cache (red) near an UNRWA school (yellow) in Rafah. The military facilities are about 25 and 10 metres from the school. The Hamas post is in the enlargement (Source: IDF Spokesperson)

Training camp and headquarters (red) 125 metres from schools (yellow) in Gaza City (Source: IDF Spokesperson)

Training camps and a military camp (marked in red) near schools (marked in yellow) in the Sheikh Radwan neighbourhood of Gaza City. The red dots with white stars designate launching points of rockets (Source: IDF Spokesperson)
169 During the Gaza Operation, Hamas frequently commandeered the homes of civilians as temporary bases to attack Israeli forces. A reporter from Der Spiegel recounted this story, based on an interview with a Palestinian who agreed to speak so long as his full name was not used, due to intimidation by Hamas:
“Hail also found out after the cease-fire that the militants had used his house as a base for their operations. The door to his house stood open and there were electric cables lying in the hallway. When Hail followed them they led to his neighbor’s house which it seems Hamas had mined. As Hail, in his mid-30s, sat on his porch and thought about what to do a man came by: He was from Hamas and had left something in Hail’s home. He let him in and the man then emerged with a bullet proof vest, a rocket launcher and an ammunitions belt. An hour later a fighter with Islamic Jihad called to the door, then disappeared onto the roof and reappeared with a box of ammunition.”(164)

170 According to some reports, Hamas operatives took pride in endangering the lives of civilians and refused their pleas to go away. Panorama-Italy described an incident at an eight-story building, home to about 170 Palestinian civilians, in the Al-Nasser neighbourhood in Gaza. When Hamas terrorists positioned themselves on the roof, a former Palestinian colonel tried to explain to them that they would draw Israeli bombs upon the children of the building. “It will be a great honour if you will die with us,” replied the “defenders of Gaza.” When the officer insisted that Hamas relocate, they fired a burst of Kalashnikov fire over his head to get rid of him.(165)

(3) Misuse of Medical Facilities and Ambulances

171 During the Gaza Operation, Hamas systematically used medical facilities, vehicles and uniforms as cover for terrorist operations, in clear violation of the Law of Armed Conflict. This included the extensive use of ambulances bearing the protective emblems of the Red Cross and Red Crescent to transport operatives and weaponry; the use of ambulances to “evacuate” terrorists from the battlefield; and the use of hospitals and medical infrastructure as headquarters, situation-rooms, command centres, and hiding places.(166)
172 Ismail Haniyeh, the head of Hamas in the Gaza Strip, located his Southern Command centre in one of the Shifa Hospital units, while the senior leaders of Hamas stationed themselves in another unit.(167) On the ground floor of the hospital’s main building, an entire wing was closed off and used solely by Hamas operatives. At the wing’s entrance, Hamas military operatives blocked entry to all civilians. Hamas operatives also seized control of sections of Al-Shifa Hospital. In addition, Hamas took control of a Red Crescent medical clinic in Khan Younis, converting it into a prisoner detention facility.(168)
173 According to Newsweek, Palestinian gunmen admitted using the al-Quds hospital for firing at Israel:
“One of the most notorious incidents during the war was the Jan. 15 shelling of the Palestinian Red Crescent Society buildings in the downtown Tal-al Hawa part of Gaza City, followed by a shell hitting their Al Quds Hospital next door; the subsequent fire forced all 500 patients to be evacuated… In the Tal-al Hawa neighborhood nearby, however, Talal Safadi, an official in the leftist Palestinian People’s Party, said that resistance fighters were firing from positions all around the hospital. He shrugged that off, having a bigger beef with Hamas. ‘They failed to win the battle.’”(169)

174 A report from Corriere della Sera confirms that the grounds, ambulances and uniforms of the al-Quds hospital had been hijacked by terrorist operatives:
“Magah al Rachmah, aged 25, residing a few dozen meters from the four large buildings of the now seriously damaged health complex, says about this fact: ‘The men of Hamas took refuge mainly in the building that houses the administrative offices of al Quds. They used the ambulances and forced ambulance drivers and nurses to take off their uniforms with the paramedic symbols, so they could blend in better and elude Israeli snipers.’”(170)

175 The same report also alluded to Hamas’ occupation of Shifa hospital:
“Also, Shifah, the largest hospital in the city, is far from being completely used up. It seems however that its basements are densely occupied. “Hamas had hidden there the emergency cells and the interrogation room for the prisoners of Fatah and the secular left front that had been evacuated from the bombarded Saraja prison,” say the militants of the Democratic Front for the Liberation of Palestine.”(171)

176 Hamas operatives made particular use of ambulances, which frequently served as an escape route out of a heated battle with IDF forces.(172)
177 The Sydney Morning Herald reported an extensive interview in January 2009 with Muhammad Shriteh, an ambulance driver who evacuated wounded Palestinians from the battle zones. Mr. Shriteh stated that during most of the Gaza Operation, he would “co-ordinate with the Israelis before we pick up patients… so they would not shoot at us.” The more immediate threat was from Hamas, he indicated, because they “would lure the ambulances into the heart of a battle to transport fighters to safety.”(173)
178 Mr. Shriteh also reported that one night, after the first week of fighting, “there was a call from a house in Jabaliya.” Because of the urgency of the call, he said, there was no time to arrange his movements with the IDF. Nevertheless, he knew the Israelis were watching him because “I could see the red laser beam on the ambulance and on me.” Mr. Shriteh stated that when he entered the house in Jabaliya he saw three Hamas operatives who had taken cover inside, and that half of the building had already been destroyed. “They were very scared, and very nervous,” he said. “They dropped their weapons and ordered me to get them out, to put them in the ambulance and take them away.” He refused because, he said, he knew that if the IDF saw him, he would not be able to pick up any more wounded people. One of the Hamas operatives, he said, put a gun to his head but he still refused, and then they allowed him to leave.(174)
179 Mr. Shriteh added that during the Gaza Operation, Hamas operatives made several attempts to hijack the ambulance fleet of al-Quds Hospital, located in the Tel al-Hawa neighbourhood in Gaza City. To deny Hamas the use of these ambulances, medical workers “had to get in all the ambulances and make the illusion of an emergency and only come back when [Hamas] had gone.”(175)
180 This unlawful use of medical facilities and vehicles by Hamas endangered medical personnel as well as the sick and wounded, while severely undermining the special protections afforded by customary international law to these persons in times of armed conflict. Such acts constitute serious violations of the Law of Armed Conflict: 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…”(176)

(4) Booby-trapping of Civilian Areas

181 Another tactic of Hamas during the Gaza Operation involved booby-trapping of homes, roads, schools and even entire neighbourhoods with mines and explosives, in order to inflict casualties on advancing IDF forces. This practice recklessly endangered the nearby civilians and buildings, which inevitably suffered during explosions. In essence, the Hamas strategy was to transform the urban areas of the Gaza Strip into a massive death trap for IDF forces, in gross disregard for the safety of the local civilian population.(177)
182 On 6 January 2009, during IDF activity in the Zeitun neighbourhood of Gaza City, weapons were found in a zoo near a school. Detonator cables were also found, leading to a back room where weapons were located:

Left: IDF forces conducting a search near the booby-trapped school.

Right: The white fuse running around the structure is visible near the wall
(Source: IDF Spokesperson, 11 January 2009)
183 A Hamas operational map captured by Israeli forces during the Gaza Operation shows the locations of booby traps in homes and near gas stations, as well as sniper positions inside mosques:

Left: A Hamas operational map captured by Israeli forces during the Gaza Operation shows the locations of booby traps in homes and near gas stations, as well as sniper positions inside mosques.

Right: Booby-trapped residential building

184 The use of booby traps by Hamas often created a multiplier effect with respect to collateral damage from IDF strikes and advancing forces. Secondary blasts from Hamas explosives destroyed homes and injured civilians who would have been unharmed were it not for the use of such tactics. The booby-trap locations were unknown to the IDF and thus could not be fully accounted for in targeting decisions and during operational activities. Such harm was impossible to foresee in advance by the IDF and could not be taken into account in the proportionality analysis. Furthermore, because roads and buildings were often mined to explode, IDF forces had to target them to protect themselves, and sometimes needed to create alternative pathways through neighbourhoods that had also been heavily booby-trapped.
185 The resulting damage is a clear and predictable consequence of Hamas’ decision to wrap entire communities in a “suicide belt” of explosives. Hamas’ actions violate the Law of Armed Conflict, which prohibits the reckless endangerment of civilians.(178)

(5) Blending in with Civilians and Use of Human Shields

186 In addition to hiding behind civilian facilities, Hamas uses civilians themselves, including women and children, as human shields.(179) Armed operatives mingle routinely with civilians in order to cover their movements. In many instances, Hamas deliberately encouraged civilians, including children, to congregate and act as human shields in locations where the IDF had provided prior warnings to civilians of pending attacks. On 29 February 2008, Fathi Hamad, a Hamas legislator, openly boasted about the practice on al-Aqsa TV:
“[the enemies of Allah] do not know that the Palestinian People has developed its [methods] of death and death-seeking. For the Palestinian people, death became an industry, at which women excel and so do all people on this land: the elderly excel, the mujahideen excel and the children excel. Accordingly, [Hamas] created a human shield of women, children, the elderly and the mujahideen, against the Zionist bombing machine.”(180)

187 Hamas activist M.A., a resident of Jabaliya, was arrested by the IDF during the Gaza Operation. During questioning he provided information about Hamas’ exploitation of the civilian population:

“[M.A.] reported in his interrogation that Hamas activists exploit innocent civilians, women and children, for the sake of their activities, to avoid being targeted by IDF forces. He related, for example, that he had hidden in a house with innocent civilians and changed his clothes so as not to be arrested. He was also witness to an incident in which Hamas activists requested a 12 year old child to wheel a cart laden with rockets while they walked at a distance, in case IDF forces noticed them. He also said that Hamas instructed its members to fire from mosques and schools, on the assumption that Israel would not respond with fire to such locations; and similarly, regarding civilian lands. He noted as well that senior members of the organization ran away and hid in bunkers while they sent junior activists to fight, and that Hamas activists shot at Fatah activists on the assumption that they were pleased with the IDF forces’ entrance of the Gaza Strip.”(181)

188 The practices described above purposely endangered civilians and therefore breach the Law of Armed Conflict, contravening the fundamental principle of distinction between combatants and non-combatants.(182)
189 In addition to the specific violations by Hamas forces, Hamas officials in Gaza also violated their legal obligations towards the civilian population under their control.

(6) Exploitation of Children

190 In addition to employing minors as terrorist operatives and suicide bombers, Hamas routinely exploited children in military support roles for intelligence gathering, tunnel digging, weapons smuggling, collecting weapons from dead terrorists, and logistical support, all in clear violation of international law.
191 In his annual report to the Security Council on the issue of “Children and Armed Conflict,” the Secretary-General of the United Nations referred to this practice, and to the difficulties in obtaining concrete information about it:
“While there have been reported incidents of children being trained and/or used by Palestinian militant groups in Gaza, community members are reluctant to provide information on cases of children used by armed forces or armed groups for fear of reprisals. Significant progress has been made towards the implementation of an informal monitoring system on child rights violations. There are concerns that Hamas reportedly used children as shields and may have used schools and hospitals or areas in their proximity to launch rockets into Israel during the December 2008 and January 2009 hostilities. These concerns must be further investigated.”(183)

192 The media has widely reported Hamas’ recruitment and exploitation of children. Corriere della Sera published the testimony of Abu Issa, aged 42 and a resident of the Tel Awa neighbourhood:
“The militiamen of Hamas tried on purpose to provoke the Israelis. Often they were young boys, aged 16 or 17, armed with submachine guns. They couldn’t do anything against tanks and jet fighters. They knew they were much weaker. But they wanted them to fire on our houses so they may later accuse them [the Israelis] of war crimes.”(184)

193 During the summer of 2008 Hamas organised “summer camps” for teenagers in the Gaza Strip in order to provide them with military training and militant indoctrination. As the children participated in drills resembling those of the Hamas security services, Hamas gunmen would walk among them, proclaiming that they were training tomorrow’s leaders.(185) The clear intent of these training camps was the recruitment of the child participants into the Hamas organisation and its militant anti-Israeli ideology.

194 The practice of using children as fighters or for other military purposes violates the Law of Armed Conflict, including prohibitions against allowing children to take part in hostilities. As customary international law is reflected in this regard in Additional Protocol I, the parties to a conflict must take “all feasible measures” to ensure that children “do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.”(186)

(7) Interference with Humanitarian Relief Efforts

195 Far from taking measures to protect Palestinian civilians during the fighting in Gaza, Hamas forces acted in a manner that prevented humanitarian relief coordinated by the IDF with various international aid organisations from reaching its intended recipients. While the IDF observed humanitarian pauses in fighting, Hamas fired rockets during these periods, attacked crossing points into Gaza through which much-needed supplies arrived, and hijacked those supplies once they crossed the border. These actions exacerbated the suffering of the Palestinian population of Gaza.
196 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.
197 During the Gaza Operation, the IDF unilaterally implemented humanitarian pauses in fighting to allow the local population to re-supply and attend to the wounded.(187) These pauses were exploited by Hamas to fire rockets and mortars into Israel and to attack IDF forces. During the period between 8 January 2009 and 17 January 2009, Hamas fired a total of 44 rockets and mortars at Israel during humanitarian pauses. The following IDF statistics show the number rocket and mortar launches occurring during humanitarian pauses in a single three day period from 10 to 12 January 2009:

10 January 2009 between 13:00 and 16:00 - 5 launches;
11 January 2009 between 11:00 and 14:00 - 12 launches; and
12 January 2009 between 10:00 and 13:00 - 10 launches.

198 Hamas and other terrorist organisations have also continued a practice of launching attacks against crossing points, which provide the only entry points for humanitarian aid to the Gaza Strip. The following incidents were documented during the first eight months of 2008:
2 August: Sniper fire and three mortar attacks are reported at the Nahal-Oz fuel terminal into Gaza;
13 July: Two mortars are fired at Kibbutz Nahal-Oz, approximately 875 yards (800 metres) from fuel crossing;
8 July: A mortar shell fired from the Gaza Strip lands in Kibbutz Ein Hashlosha;
7 July: Two mortar shells are fired from Gaza fall close to Karni goods crossing and Kibbutz Nahal-Oz;
6 July: Armed Palestinian terrorists open fire on agricultural farmers working close to the Nahal-Oz crossing;
22 May: A truck bomb, containing four tons of explosives, explodes at the Erez pedestrian crossing into Gaza;
19 April: The Kerem Shalom goods crossing is attacked by two car bombs, wounding 13 IDF soldiers;
13 April: Five mortars are fired at Kerem Shalom crossing;
9 April: Mortars fired at Nahal-Oz terminal. Terrorists later infiltrate the crossing and shoot dead two workers;
23 March: Two mortars fall in close proximity to the Sufa crossing;
29 February: A mortar falls next to the Sufa crossing;
18 February: Two rockets fired towards Kibbutz Nahal-Oz, approximately 875 yards (800 metres) from fuel crossing;
16 February: Five rockets fired toward Kibbutz Nahal-Oz;
12 February: Mortars are fired which fall near Nahal-Oz fuel terminal;
6 February: A mortar shell is fired at Sufa goods crossing, forcing its closure;
18 January: Eight mortars are fired at Sufa crossing;
12 January: A Qassam rocket falls near Erez pedestrian crossing;
7 January: Palestinian Islamic Jihad attempts to bomb Erez pedestrian crossing but attack is thwarted; and
1 January: Five mortars are fired at Sufa goods crossing.

199 Hamas’ attacks on crossing points continued during the Gaza engagement. For instance, on 12 January 2009, when the Karni crossing was opened to allow truck loads from Israel into the Gaza Strip, IDF forces searching in the area found a tunnel that was dug in the direction of the crossing for the purpose of carrying out a terrorist attack. The crossing was subsequently re-closed for fear that additional tunnels have been dug. In another incident, an explosive tunnel was discovered near the Nahal Oz fuel terminal, substantially increasing the risk of transferring industrial diesel for the Gaza power station through the Kerem Shalom crossing from Israel to Gaza.
200 Perhaps the most serious interference with humanitarian relief efforts by Hamas consisted of hijacking humanitarian supplies once they arrived in Gaza. On 12 January 2009 it was reported by the Jerusalem Post that “Hamas raided some 100 aid trucks that Israel had allowed into Gaza, stole their contents and sold them to the highest bidders.” (188) Internet user Abu Mohamed of Khan Younis wrote on 9 January 2009 at 21.40 that:
“Hamas is selling the humanitarian aid to the big merchants. They are exploiting people’s suffering and do not care about the martyrs, the wounded and those who have fled their homes. They commandeered the UNRWA lorries and put the supplies in their own storehouses. Ask the chief of emergency services in Rafah, the engineer Sh’hiber. Hamas people are seizing all the goods entering Gaza and selling them to the big merchants. Ask the merchant Hamed from Khan Younes who is selling the aid from Jordan to the small merchants. Also the aid from Egypt is being sold and distributed to their people only. Everyone in Gaza knows this, but the people are silent. Only Hamas are profiting from the people’s disasters. We ask that all the aid go through the above organizations.”

201 A participant on a Fatah Internet forum said that:
“The aid goes into Hamas’ stores. They sell it to poor civilians … who are forced to wear green berets [identifying them with Hamas] to be able to buy it. If you don’t wear a green beret, there is neither food nor drink

202 He also complained that the aid was not distributed by organisations such as UNRWA and the Red Cross, but by Hamas.(189) Another participant added that “the Hamas militias take the aid that arrives and give it to movement operatives … Hamas sells the aid … at higher than normal prices.”
203 Captured Hamas activist N.A. reported to investigators that ”employees of the Hamas government took the humanitarian aid sent by Israel, and that civilians did not receive the aid for free but were required to pay for it.”(190) N.A. said he recognised the humanitarian aid as originating in Israel because the labels on sacks of flour were in Hebrew.(191)
204 H.S., a resident of Jabaliya, provided similar information after he was arrested by the IDF during the Gaza Operation. H.S. spoke about the Hamas control of humanitarian aid arriving in the Gaza Strip from UNRWA – a situation existing since the Hamas rise to power in Gaza. As a result, he indicated, “Fatah activists do not receive any aid, and the food and equipment are transferred directly to Hamas activists and their supporters.” (192)
205 On 20 January 2009, a number of armed men seized a Jordanian aid convoy after entering the Gaza Strip via Kerem Shalom Crossing Point. The Jordan Hashemite Charity Organisation (JHCO) aid convoy, which was expected by the UNRWA, was unloaded to non-Jordanian trucks after crossing King Hussein Bridge. The armed men opened fire at drivers after crossing Kerem Shalom crossing point and forced them to head to their own warehouses.(193)
206 On 3 February 2009, UNRWA reported that Hamas armed assailants seized by force 3,500 blankets and 406 food parcels from its distribution centre at the Shati refugee camp. This action was strongly condemned by U.N. officials, who demanded an immediate return of the aid.(194) On 5 February 2009, UNRWA after 10 truckloads of flour (equivalent to 100 tons) and rice (equivalent to 200 tons) imported from Egypt for UNRWA were taken from the Palestinian side of the Kerem Shalom Crossing into Gaza.(195)
207 All of these reports strongly suggest a pattern of Hamas actions designed to prevent international aid organisations from distributing much-needed humanitarian relief in an orderly fashion, solely because Hamas wished to be able to use the supplies to reward its supporters.
208 Hamas’ interference with humanitarian relief efforts further underscores a complete lack of concern for the lives of ordinary Palestinians, on whose behalf Hamas purports to wage its terrorist campaign against Israel. Indeed, Hamas’ wilful and repeated interference with the supply of essential goods and services to Gaza qualifies as a grave breach of the Law of Armed Conflict and a war crime under international law.

FOOTNOTES
(139)See, e.g., Report, Erased In A Moment - Suicide Bombing Attacks Against Israeli Civilians, Human Rights Watch, 15 October 2002 available at http://www.hrw.org/en/reports/2002/10/15/erased-moment
and Report, Israeli civilians victims of attacks by armed Palestinian groups, Médecins du Monde, July 2003; available at
http://www.reliefweb.int/library/documents/2003/mdm-opt-21jul.pdf
(which has also coined the term “democide” to name the suicide bombing attacks).

(140) Quartet Joint Statement from Russian Foreign Minister Sergei Lavrov, U.S. Secretary of State Condoleezza Rice, United Nations Secretary-General Ban Ki-moon, High Representative for European Foreign and Security Policy Javier Solana, German Foreign Minister Frank-Walter Steinmeier, and European Commissioner for External Relations Benita Ferrero-Waldner, 30 May 2007, available at
http://www.un.org/news/dh/infocus/middle_east/
quartet-30may2007.htm:
“The Quartet strongly condemned the continued firing of Qassam rockets into Southern Israel as well as the buildup of arms by Hamas and other terrorist groups in Gaza. It endorsed PA President Abbas' call for an immediate end to such violence, and called upon all elements of the PA government and all Palestinian groups to cooperate with President Abbas to that end.”

(141) European Union Presidency statement, 16 May 2007: “The EU Presidency condemns in the strongest possible terms the Kassam missile attacks launched from the Gaza Strip against Israeli territory which have caused many injuries during the last few days and appeals to Palestinian leaders to do everything in their power to stop them. An escalation of violence must be prevented.”

(142) State Department Daily Press Briefing by Spokesman Sean McCormack, 17 May 2007, available at
http://www.imra.org.il/story.php3?id=34365: “Violence perpetrated by Hamas, as we have seen recently, doesn't further the cause of peace. What it does is result in the deaths of innocent civilians and it also underscores the importance of reaching those political accommodations on the Israeli-Palestinian track among those individuals who are committed to peace like Prime Minister Olmert, like President Abbas, and the people around him and that work directly for him. We would hope that Hamas would make another choice; in making a choice for peace, in making a choice for a Palestinian state, because the only way that they're going to see that is via the negotiating table. They're not going to see it by launching Qassam rockets into Israel. They're not going to see it by attacking the legitimate security forces of the Palestinian Authority. They're not going to see it by sending young people armed with suicide vests to blow up other Israeli youngsters.” See also Press release, Sderot hit by Kassam barrage from Gaza, Israel Ministry of Foreign Affairs, 1 June 2007, available at http://www.mfa.gov.il/MFA/
Terrorism-+Obstacle+to+Peace/
Palestinian+terror+since+2000/ Sderot+hit+by+Kassam+
barrage+from+Gaza+-+May+2007.htm.

(143) Margaret Beckett, the British Secretary of State for Foreign and Commonwealth Affairs, said in a statement: “I also deplore rocket attacks from Gaza against Israel, attacks that are bringing suffering to Israeli civilians.”

(144) Additional Protocol I, arts. 48, 51(2), 52(1).

(145) Rome Statute, art. 8(2)(b)(i).

(146) Greg Myre, UN Official Touring Israel is Near Area Hit by Rocket, The New York Times, 22 November 2006 (quoting Ibrahim Gambari), available at http://www.nytimes.com/2006/11/22/world/middleeast/
22mideast.html?pagewanted=print.

(147) Isabel Kershner, Israeli incursion into Gaza Strip Kills 4 militants, The New York Times, 17 February 2008, (quoting John Holmes) available at
http://www.nytimes.com/2008/02/17/world/africa/
17iht-mideast.4.10121958.html.

(148) Press Release, Secretary General Profoundly Concerned at Escalating Violence, Growing Casualties in Gaza, Statement SG/SM/10997/PAL/2074 (Spokesman of Secretary General Ban Ki-moon), 16 May 2007, available at
http://www.un.org/News/Press/docs/2007/sgsm10997.doc.htm

(149) Additional Protocol I, art. 51(2). .

(150) Additional Protocol I, art. 77(1).

(151)Id., art. 12(4).

(152)Id., art. 53.

(153)See, e.g., ICRC Commentary on Additional Protocol I, Article 52(4)(a), ¶ 1953 (noting that “[i]n combat areas it often happens that purely civilian buildings or installations are occupied or used by the armed forces and such objectives may be attacked, provided that this does not result in excessive losses among the civilian population.”).

(154) Numerous videos detailing this and other Hamas tactics are available on the Ministry of Foreign Affairs Video Resource Library, at
http://www.mfa.gov.il/MFA/Visual+Media/
The-IDF-operation-in-Gaza-14-Jan-2009.htm, as well as on the website of the Intelligence and Terrorism Information Center,
at http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/html/ham...

(155) Press Release, Ban Ki-moon condemns rocket attack from Gaza school run by UN agency, U.N. News Centre, 8 November 2007, available at http://www.un.org/apps/news/story.asp?NewsID=24593&Cr=palestin&Cr1.

(156)See Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at http://www.shabak.gov.il/English/EnTerrorData/Archive
/Operation/Pages/cast-lead-Interrogations.aspx.

(157) Letter from Lotte Leicht to EU Foreign Ministers, 16 March 2009, available at http://www.hrw.org/en/news/2009/03/16/
letter-eu-foreign-ministers-
address-violations-between-israel-and-hamas (emphasis added).

(158) Rod Nordland, Hamas and Its Discontents, Newsweek, 20 January 2009, available at http://www.newsweek.com/id/180691/output/print.

(159) Lorenzo Cremonesi, Così i ragazzini di Hamas ci hanno utilizzato come bersagli, Corriere della Sera, 21 January 2009, available at
http://www.corriere.it/
esteri/09_gennaio_21/ denuncia_hamas_cremonesi_
ac41c6f4-e802-11dd-833f-00144f02aabc.shtml.

(160) See Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at
http://www.shabak.gov.il/English/EnTerrorData
/Archive/Operation/Pages/
cast-lead-Interrogations.aspx.
(161) See video footage showing an IAF strike sets off numerous secondary explosions, caused by munitions stockpiled in a mosque, available at http://dover.idf.il/IDF/English/News/the_Front/08/12/3102.htm.

(162)See Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at http://www.shabak.gov.il/English/EnTerrorData/Archive/Operation
/Pages/cast-lead-Interrogations.aspx.

(163) Regarding the use of houses for military purposes,
see http://www.terrorism-info.org.il/malam_multimedia
/English/eng_n/pdf/hamas_e062.pdf. For the use of mosques for military purposes, see http://www.terrorism-info.org.il/malam_multimedia
/English/eng_n/pdf/hamas_e059.pdf and http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/html/ham.... Regarding Hamas’ use of schools, see http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/html/ham...
and http://www.terrorism-info.org.il/malam_multimedia/English/eng
_n/html/hamas_e055.htm.

(164) Ulrike Putz, Gaza in Ruins: ‘Who Has Won Here?’ Spiegel Online International, 23 January 2009, available at
http://www.spiegel.de/international/world
/0,1518,603203,00.html.
(165) Fausto Biloslavo, Gaza: la sporca guerra di Hamas, Panorama-Italy, 16 February 2009, available at http://blog.panorama.it/mondo/2009/02/16/
gaza-la-sporca-guerra-di-hamas/.

(166) See Intelligence and Terrorism Information Center, Gazans Tell How Hamas Used Them As Human Shields, 28 January 2009, available at
http://www.terrorism-info.org.il/malam_multimedia/
English/eng_n/html/hamas_e052.htm.

(167) A Hamas activist captured by IDF forces during the operation confirmed during his interrogation that senior Hamas members were hiding out in Shifa Hospital during the Gaza Operation. See Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at
http://www.shabak.gov.il/English/EnTerrorData/Archive/Operation/Pages/
cast-lead-Interrogations.aspx; see also Amir Mizroch, Dichter: Hamas salaries paid at Shifa Hospital, Jerusalem Post, 12 January 2009, available at http://www.jpost.com/servlet/Satellite?pagename=JPost/
JPArticle/ShowFull&cid=1231424936164.

(168)See PA Health Ministry: Hamas Using Hospitals as Detention Centers, Ma’an News Agency, 7 February 2009, available at http://www.maannews.net/eng/ViewDetails.aspx?
ID=208410&MARK=hospital. This practice was also used prior to the Gaza Operation. For additional accounts by Red Cross personnel of attacks on hospitals by Palestinian militants in June 2007, including killing of patients in the hospitals, see Alison Caldwell, Hospitals offer no safety in Gaza strip, Radio National Australia, available at http://www.abc.net.au/pm/content/2007/s1950580.htm

(169) Rod Nordland, Hamas and Its Discontents, Newsweek, 20 January 2009, available at http://www.newsweek.com/id/180691/output/print.

(170) Lorenzo Cremonesi, Così i ragazzini di Hamas ci hanno utilizzato come bersagli, Corriere della Sera, 21 January 2009, available at http://www.corriere.it/esteri/09_gennaio_21/denuncia_hamas_
cremonesi_ac41c6f4-e802-11dd-833f-00144f02aabc.shtml.

(171)Id.

(172) For examples of the use made by Hamas of U.N. ambulances to evacuate armed terrorists from battle zones see http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/pdf/hamas... .(Hebrew)

(173) Jason Koutsoukis, Hamas tried to hijack ambulances during Gaza war, Sydney Morning Herald, 26 January 2009, available at
http://www.smh.com.au/news/world/hamas-tried-to-hijack
-ambulances-during-gaza-war/2009/01/ 25/1232818246374.html.

(174)Id.

(175)Id.

(176) Similarly, Article 38 of Additional Protocol I states that:
(1) It is prohibited to make improper use of the distinctive emblem of the Red Cross, Red Crescent or … of other emblems, signs or signals provided for by the Conventions ….
(2) It is prohibited to make use of the distinctive emblem of the United Nations, except as authorized by that Organization.

(177) See Intelligence and Terrorism Information Center, Civilians as Human Shields, 19 January 2009, available at http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/html/ham....

(178)See Section V.A(1)(b).

(179) Several videos illustrating this practice are available (in Hebrew) on the website of the Intelligence and Terrorism Information Center. See, e.g., Intelligence and Terrorism Information Center, Hamas modus operandi – Terrorist shooting from a roof of a house and using children as a human shield, 6 January 2009, available at http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/
video/v9.wmv (depicting terrorist shooting from roof of house, calling out to civilians to help him get out of the house, and leaving the house protected by children as shields); Intelligence and Terrorism Information Center, Hamas modus operandi – Hamas terrorist searching for shelter after shooting rockets towards Israel, available at
http://www.terrorism-info.org.il/malam_multimedia/Hebrew/
heb_n/video/v10.wmv (depicting terrorist pushing himself into a group of children after firing rocket towards Israel); Intelligence and Terrorism Information Center, Preventing the harming of uninvolved persons – Hamas terrorists integrate with civilians in order to avoid being hit and thus endangering uninvolved civilians, 12 January 2009, available at http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/video/v11... (depicting targeting of senior terrorist by IDF forces and cancellation of attack after children and woman holding a baby arrive); Intelligence and Terrorism Information Center, Preventing the harming of uninvolved persons – Weapons and ammunition are located in the building – The IDF notified the tenants to evacuate the building – In order to prevent attack on the building, many civilians go up on the roof, 27 December 2008, available at http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/
video/v12b.wmv (showing civilians arriving on roof of building containing Hamas weapons cache to protect it from announced IDF strike).

(180) Transcript of Statement of Hamas Member of Palestinian Legislative Council, Fathi Hamad, Al-Aqsa TV, 29 February 2008, video available at http://www.youtube.com/watch?v=ArJbn-lUCh4.

(181)See Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at http://www.shabak.gov.il/English/EnTerrorData/Archive/Operation
/Pages/cast-lead-Interrogations.aspx.

(182)See Section V.A(1).

(183) The Secretary-General, Report of the Secretary-General on Children and armed conflict, ¶¶ 86-87, delivered to the Security Council and the General Assembly, U.N. Doc. S/2009/158, A/63/785 (26 March 2009).

(184) Lorenzo Cremonesi, Così i ragazzini di Hamas ci hanno utilizzato come bersagli, Corriere della Sera, 21 January 2009, available at http://www.corriere.it/esteri/09_gennaio_21/denuncia_hamas_
cremonesi_ac41c6f4-e802-11dd-833f-00144f02aabc.shtml.

(185) Associated Press, Hamas Summer School Graduates Now Ready for Battle with Israel, Haaretz, 11 August 2008, available at http://www.haaretz.com/hasen/spages/1010449.html.

(186) Additional Protocol I, art. 77(2).

(187)See Section V.C(4)(c) below.

(188) Yaakov Katz et al., Hamas Raids Aid Trucks, Sells Supplies, The Jerusalem Post, 12 January 2009, available at http://www.jpost.com/servlet/Satellite?
cid=1231424932109&pagename=JPost/JPArticle/ShowFull.

(189) Fatah forum, 15 January 2009 (as cited in Intelligence and Terrorism Information Center, Evidence of Hamas Use of the Civilian Population as Human Shields, 4 February 2009, available at
http://www.terrorism-info.org.il/malam_multimedia/English/
eng_n/pdf/hamas_e055.pdf.
(190)See Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at http://www.shabak.gov.il/English/EnTerrorData/Archive/Operation/Pages/
cast-lead-Interrogations.aspx.

(191)Id.

(192)Id.

(193)Armed men seize Jordanian aid in Gaza Strip, Petra News Agency, 20 January 2009, available at
http://www.petra.gov.jo/Artical.aspx?Lng=1&Section=&Artical=83031.

(194) Press Release, UNRWA Condemns Confiscation of Gaza Aid and Demands its Immediate Return, UNRWA, 4 February 2009, available at http://www.un.org/unrwa/news/releases/pr-2009/jer_4feb09.html. See also Intelligence and Terrorism Information Center, Tensions between Hamas and UNRWA following the theft of food and blankets and the Hamas takeover of a supply convoy, 9 February 2009, available at http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/pdf/hama....

(195) Press Release, UNRWA Suspends Imports into Gaza Following Aid Confiscation, UNRWA, 6 February 2009, available at http://www.un.org/unrwa/news/releases/
pr-2009/jer_6feb09.html.

http://www.mfa.gov.il/Operation_in_Gaza-Factual_and_Legal_Aspects.htm