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Determining the applicability of laws of war to militant groups is a difficult question, as both the Council of Europe and International Committee of the Red Cross note that international law traditionally treats war and terrorism as separate legal categories.[3][4] The Israeli, American, EU, UK, Japanese, and Canadian governments define Hamas as a terrorist group. However, many countries have disagreed with this characterization and have engaged with Hamas as a legitimate political entity.[5][6] While the term "international law" conventionally pertains to states, it has also been applied to insurgent and terrorist armed forces. [7] Accordingly, even insurgencies deemed lawful under international law that meet the criteria of "just cause" must also adhere to principles of "just means" as well.[8] Regarding Hamas and its combatants, even if they have a presumptive right to fight against what they term as an "illegal occupation," they must still abide by legal rules of "discrimination", "proportionality", and "military necessity" under international law as conventional states do.[9][10]
According to Human Rights Watch, "international humanitarian law, through the well-established doctrine of command responsibility" also applies "to political and other leaders insofar as they have 'effective responsibility and control' over the actors in question...thus making its leadership also criminally liable."[11]
War crimes
Targeting of civilians
According to Amnesty International, the "prohibition on targeting civilians is absolute in international law".[12]
Human Rights Watch has declared that the "scale and systematic nature" of Hamas' targeting of Israeli civilians "meet the definition of a crime against humanity", and that its particular use of suicide bombings taking "place in the context of violence that amounts to armed conflict...are also war crimes."[13]
According to Amnesty International, "the campaign of suicide bombings and deliberate attacks against Israeli civilians by Hamas and other armed groups constitutes crimes against humanity.[12]
Between September 1993 and the outbreak of the Second Intifada in September 2000, "Palestinian groups carried out fourteen suicide bombing attacks against Israeli civilians, mostly in 1996-97, killing more than 120 and wounding over 550. Hamas said it committed most of the attacks."[14]
In the decade between 2000 and 2010, there were 146 suicide attacks committed by Palestinian militant groups against Israelis, resulting in 516 fatalities.[15] A 2007 Harvard University study of 135 Palestinian suicide attacks conducted between September 2000 and August 2005 determined Hamas responsible for 39.9% of such attacks during that period.[16]
Israel has accused Hamas of using human shields in the Gaza Strip, saying that Hamas has purposely attempted to shield itself from Israeli attacks by storing weapons in civilian infrastructure, launching rockets from residential areas, and telling residents to ignore Israeli warnings to flee. Israel has also accused Hamas of maintaining command and control bunkers and tunnel infrastructure below hospitals. Hamas has denied using hospitals to shield any command centre,[17] while it has previously made remarks expressing support for Palestinians refusing to flee areas Israel has targeted.[18]
The Israeli accusations have been supported by NATO,[19] and during the 2023 Israel–Hamas war EU nations condemned Hamas for using hospitals as human shields, while the UN Secretary General said "Hamas and other militants use civilians as human shields".[20][21] In 2023, HRW stated "Hamas and other Palestinian armed groups need to take all feasible precautions to protect civilians under their control from the effects of attacks and not use civilians as 'human shields.'"[22]
Between 2000 and 2021, over 17,000 rockets were fired into Israel from Gaza.[23] Hamas' use of indiscriminate rocket attacks on civilians has been widely condemned as a war crime.[24][25] Palestinian UN Observer Ibrahim Kraishi has equally decried the attacks, stating that "every rocket and mortar fired from Gaza toward Israel is a “crime against humanity.”[26]
During the Second Intifada, the majority[ambiguous] of Israeli casualties were civilian non-combatants, with Hamas conducting numerous[ambiguous] attacks deliberately targeting civilians.[27][28]
According to the Jerusalem Post, during the 2014 Gaza War, 20 civilians from Shuja'iyya were killed while protesting against Hamas.[29] A few days later, Hamas reportedly killed two Palestinians in Gaza and wounded ten after a scuffle broke out over food handouts.[30]
The IDF stated on 31 July that more than 280 Hamas rockets[31] malfunctioned and fell inside the Gaza strip, hitting sites including Al-Shifa Hospital and the Al-Shati refugee camp, killing at least 11 and wounding dozens.[32] Out of the Hamas denied that any of its rockets hit the Gaza Strip.,[31][33][34] but Palestinian sources[who?] said numerous rocket launches ended up falling in Gaza communities and that scores of people have been killed or injured. Israeli Military sources said the failed Hamas launches increased amid heavy Israeli air and artillery strikes throughout the Gaza Strip. They said the failed launches reflected poorly assembled rockets as well as the rush to load and fire projectiles before they were spotted by Israeli aircraft.[35] While the Al-Shifa Hospital incident is disputed, early news reports have suggested that the strike was from an Israeli drone missile.[32][36][37]UK based human rights group, Amnesty International concluded that the explosion at the Shati refugee camp on 28 July in which 13 civilians were killed was caused by a Palestinian rocket, despite Palestinian claims it was an Israeli missile.[38]
Killing of suspected collaborators
Shurat HaDin filed a suit with the ICC charging Khaled Mashal with war crimes for the executions of 38 civilians.[39][40] Hamas co-founder Ayman Taha was found dead; Al-Quds Al-Arabi reported he had been shot by Hamas for maintaining contact with the intelligence services of several Arab countries; Hamas stated he was targeted by an Israeli airstrike.[citation needed]
On 26 May 2015, Amnesty International released a report saying that Hamas carried out extrajudicial killings, abductions and arrests of Palestinians and used the Al-Shifa Hospital to detain, interrogate and torture suspects. It details the executions of at least 23 Palestinians accused of collaborating with Israel and torture of dozens of others, many victims of torture were members of the rival Palestinian movement, Fatah.[41][42]
Hamas gunman shooting at a civilian vehicle in Israel[43]
On 9 October 2023 Human Rights Watch stated that Hamas's apparent targeting of civilians, indiscriminate attacks, and taking of hostages amounted to war crimes.[44] On 10 October 2023 the OHCHR stated the taking of hostages and use of human shields were war crimes.[45] United Nations Human Rights chief Volker Türk noted that militant groups' "horrifying mass killings" were violations of international law.[46]
As one of the first massacres of many in the coordinated attacks on 7 October 2023, militants of the al-Qassam Brigades and other Palestinian factions entered a music festival in Re'im at c. 7 a.m. local time and murdered over 360 people, as well as taking over 40 people hostage. Considering the attack on festival goers as indiscriminate in nature, along with a lack of Israeli military presence during the massacre, it could only be considered an intentional attack against civilians.[47][48][49]
Zaka volunteers assisting in the removal of bodies
At c. 7:10 a.m., on 7 October 2023,[50] around 70 al-Qassam and DFLP militants had entered and attacked the kibbutz of Be'eri, taking over 130 peoples' lives,[51] including women (such as peace activist Vivian Silver),[52] children,[53] toddlers, and one infant,[54][55][56][57] in total claiming the lives of 10% of the farming community's residents. Dozens of homes were also burned down.[58]
Human Rights Watch has stated that "Hamas and Islamic Jihad are committing war crimes by holding scores of Israelis and others as hostages in Gaza".[59] During the Hamas attack approximately 200 people were taken hostage by militants. Hostages taken during the 7 October attacks by Hamas militants included women, children, elderly and infants.[60][61][62]
Murder of hostages
On August 31, 2024, the IDF recovered the bodies of six hostages, including Hersh Goldberg-Polin, from a tunnel in Rafah. Autopsies revealed that they had been killed from close range just 1–2 days earlier. Subsequently, it was reported that Hamas militants holding Israeli hostages in Gaza were given new orders to execute them if Israeli forces approached.[63] Following the recovery and burial of the hostages, Hamas released a propaganda video showing one of the slain captives before her death, seemingly intended to inflict psychological distress on the families of the hostages. Additionally, Hamas issued a warning that it would execute any remaining hostages if Israel attempted a rescue operation.[64]
During the 7 October attack, Hamas fighters infiltrated Israeli kibbutz and festivals, where witnesses said they tortured, raped and sexually assaulted many women and girls of all ages, and some men.[65] Israeli police recorded the difficulty in collecting physical evidence in a war zone, due to this the full extent of the crimes may never be known.[66] Israeli authorities published testimonies from alleged captured Hamas militants, some bloodied and wincing in pain, recounting the violence they allegedly perpetrated, which they claimed confirmed accounts of sexual assault.[67] However, these accounts were noted from organizations such as Human Rights Watch and Amnesty International as likely extracted under torture, violating international law and basic human rights, and therefore inadmissible as credible evidence.[68] Additionally, a number of initial testimonies of sexual violence were discredited later.[69][70][71] Israel has accused international human rights groups of downplaying assault reports.[72]
Israeli protestor holding sign alluding to sexual assault of hostages in front of US Embassy in Tel Aviv in March 2024
Alleged sexual violence has also been reported by released Israeli hostages, such as one of the Israeli hostages released during the temporary truce in late 2023 who told The Jerusalem Post that at least three women were sexually assaulted by their Hamas captors.[73][74] A United Nations report in March 2024 concluded that there was "clear and convincing information" that the Israeli hostages experienced "sexual violence, including rape" and there were "reasonable grounds" to believe such abuse is "ongoing against those still held in captivity".[75][76] However, the report was not a full and legal investigation but designed to "collect and verify allegations", and thus the team highlighted that their conclusion "falls below 'beyond a reasonable doubt'."[77] Consequently, in April 2024, the UN refused to acknowledge the rape allegations against Hamas and did not include the group in the blacklist of state and non-state parties guilty of sexual violence in 2023 due to the lack of credible evidence.[78][79][80]
^"Seventeen hours of terror: how Hamas invaded one Israeli community". The Financial Times. 21 December 2023. Archived from the original on 13 October 2023. Retrieved 8 April 2024. Security footage shows the two gunmen ambushing a Mazda and firing multiple shots into the vehicle. The bullet-ridden car rolls forward, the gate opens, and the men enter the kibbutz.
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