Israel & the International Criminal Court

Hamas and the Rules of International Humanitarian Law: 1 – Distinction

Hamas and the Rules of International Humanitarian Law:
Distinction, Precaution, and the Use of Human Shields

The Principle of Distinction

The principle of distinction requires that belligerents distinguish combatants from civilians and military objectives from civilian objects; parties to a conflict must direct their operations only against combatants and military objectives.

Applicable Law


A. Treaty Law


Article 48, Additional Protocol I of the Geneva Conventions:


"In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

Article 50, Additional Protocol I of the Geneva Conventions:


"1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1); (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.
2. The civilian population comprises all persons who are civilians.
3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character."

Article 51, Additional Protocol I of the Geneva Conventions:


"1. The civilian population and individual civilian shall enjoy general protection against dangers arising from military operations. . .
2. The civilian population as such, as well as individual civilians, shall not be the object of attack. . .
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction."

Article 52, Additional Protocol I of the Geneva Conventions:


"1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used."

Article 27, Hague Convention IV:


"In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes."

Article 53, Additional Protocol I of the Geneva Conventions:


"Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort;
(c) to make such objects the object of reprisals."

B. Customary Law


ICRC Customary Rule 1:


"The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians."

ICRC Customary Rule 2:


"Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."

ICRC Customary Rule 6:


"Civilians are protected against attack, unless and for such time as they take a direct part in hostilities."

ICRC Customary Rule 7:


"The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects."

ICRC Customary Rule 8:


"In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."

ICRC Customary Rule 11:


"Indiscriminate attacks are prohibited."

ICRC Customary Rule 12:


"Indiscriminate attacks are those:
(a) which are not directed at a specific military objective;
(b) which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction."

ICRC Customary Rule 16:


"Each party to the conflict must do everything feasible to verify that targets are military objectives."


C. Jurisprudence


Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, July 8, 1996:


"The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets."

Constitutional Review of Additional Protocol II, Colombian Constitutional Court, December 14, 2011:


"One of the basic rules of international humanitarian law is the principle of distinction according to which the parties in conflict must differentiate between combatants and non-combatants, since the latter may never be the targets of acts of war. There is an elementary reason for this: although war seeks to weaken the enemy's military capacity, it may not target those who do not actively participate in the hostilities - either because they have never taken up arms (civilian population), or because they have ceased to be combatants (disarmed enemy troops) - since they are not military personnel. The law of armed conflicts therefore considers that military attacks against such persons are unlawful . . .
The distinction between combatants and non-combatants has fundamental consequences. Firstly, as stated in the rule regarding immunity of the civilian population . . . the parties have the general obligation to protect civilians from the dangers arising from military operations. From this follows . . . that the civilian population as such may not be the object of attack, and acts or threats of violence the primary purposes of which is to spread terror are prohibited. General protection of the civilian population from the dangers of war also implies that it is not in keeping with international humanitarian law for one of the parties to involve the population in the armed conflict, as in so doing it would turn civilians into participants in the conflict and thus expose them to military attacks by the adverse party . . ."

D. Learned jurists and commentary


Michael N. Schmitt, Charles H.B. Garraway, Yoram Dinstein, "The Manual on the Law of Non-International Armed Conflict With Commentary," International Institute of Humanitarian Law, 2006:


"The principle of distinction is the 'foundation on which the codification of the laws and customs of war rests.' It seeks to shield those who are not actively (directly) participating in armed conflict from its effects by prohibiting direct attacks upon civilians or objects that do not constitute legitimate military objectives...

The principle of distinction has roots stretching back to the Lieber Code. Since then, it has been confirmed in numerous legal instruments, including the Hague Regulations, which (as discussed above in the commentary to Rule 1.2.1, represent customary international law). The principle of distinction permeates the Geneva Conventions in the sense that those instruments set forth categories of protected persons. Additional Protocol I, in Article 48, refers to the principle of distinction as a "basic rule." Most recently, in the Nuclear Weapons Advisory Opinion, the International Court of Justice recognized distinction as one of two 'cardinal' principles of the law of armed conflict, the other being unnecessary suffering.

Today, it is indisputable that the principle of distinction is customary international law for both international and noninternational armed conflict. Article 13 of Additional Protocol II sets forth the general principle that "the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations." The application of the principle of distinction as a customary rule in non-international armed conflicts is emphasized in the ICRC Commentary to the Article. In Tadić, the ICTY Appeals Chamber also found the principle of distinction to be customary law in non-international armed conflict."

Leslie C. Green, The Contemporary Law of Armed Conflict, Manchester University Press 1993 (pg. 151-152):


"Indiscriminate acts by whatever weapons or means and in whatever theatres are forbidden, althrough for the purposes of Protocol I any attack from the sea or air must be directed against targets on land. Article 51(4) of Protocol I defines indiscriminate as those not directed at a specific military objective or employing means or methods which cannot be so directed or whose effects cannot be limited as required by the Protocol concerning protection of the wounded and sick, civilians and civilian objects, as well as prohibitions relating to protected places and excessive non-military damage, and which are of a nature likely to strike military objectives and civilians or civilian objects without distinction.

While Protocol I provides the first definition of indiscriminate attacks, customary law concerning the distinction metween military and non-military objectives an the rule regarding proportionality are directed to this end. Article 51(5)(b) expressly refers to the proportionality rule by giving as an example an attack 'which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.' This relates to command discretion in the light of all information, including the advantage to the overall military operation. To determine the specificity of an objective may require prior reconnaissance to ensure that it is in fact a military objective, and the attack must follow so soon afterwards that the attacking commander may be reasonably certain that what was observed to be a legitimate objective is likely to have remained so at the time of attack. If a number of clearly distinct and separate military objectives are located in an area containing a concentration of civilians or civilian objects, these may not be the subject of a single area attack, so that the area bombing attacks of World War II would now be illegal. This does not mean, however, that merely because a built-up area exists the larger area is no longer a military objective, but the civilian areas within it should be clearly defined, and the rule of proportionality should always be observed."

International Committee of the Red Cross, "Basic Rules of IHL," December 31, 1988:


"The prohibition of attacks on civilian persons and civilian property includes all acts of violence, whether committed in offence or defense. Attacks or threats of violence intended to terrorize the civilian Population are also prohibited. The prohibition includes attacks launched indiscriminately. In particular these are attacks which are not directed or which cannot be directed, because of the methods or means of combat employed, at a military objective. Also considered as indiscriminate are attacks which treat as a single military objective a number of clearly separated and distinct military objectives located in a town, village or other area containing a similar concentration of civilians or civilian property. The same applies to attacks which cause incidental civilian losses and damage excessive in relation to the concrete and direct military advantage anticipated."

Luis Moreno-Ocampo, "Letter of Chief Prosecutor of the International Criminal Court," February 9, 2006:


"Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv)."

Marco Sassòli, "Legitimate Targets of Attacks Under International Humanitarian Law," Background Paper Prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, January 27-29, 2003:


"A dual-use object serves both civilian and military purposes. Particularly in times of war, the military uses civilian infrastructure, telecommunications and logistics also for military purposes. In industrialized countries power-generating stations are crucial for civilian access to clean water, but they also provide power to war industries – and in an integrated power grid all stations provide power to both. In the era of high technology, the construction of computer hardware and software may be essential for military purposes, while it may be nearly impossible to identify that technology actually destined or useful for military purposes. When a certain object is used for both military and civilian purposes, it may be held that even a secondary military use turns it into a military objective. However, if the effects on the civilian use of the object imply excessive damages to civilians, an attack on such a dual-use object may nevertheless be unlawful under the proportionality rule. In practice, it may admittedly be extremely difficult to determine the importance of the military use and of the military advantage in destroying the object, in particular if the military has priority access to all remaining infrastructure. Under the wording of Protocol I, an attack on a dual-use object is in any event unlawful if the effect on the civilian aspect is intended, but the respect of that particular rule is impossible to assess in the heat of the battle."

Israel Ministry of Foreign Affairs, "Behind the Headlines: Fighting Hamas Terrorism Within the Law," August 7, 2014:


"The principle of 'distinction' mandates that each party must ensure that it directs its attacks only against combatants and military objectives and abstain in all circumstances from targeting civilians or civilian objectives. Military objectives are those which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction offers a definite military advantage.

The rule of distinction further mandates that the parties to the conflict refrain from placing military objectives within or near densely populated areas. If a military objective, such as a missile launcher or weapons stockpile, is placed in the heart of a civilian area, it does not cease being a lawful military objective. The primary responsibility for civilian causalities arising from such 'shielding' of military objects lies with the party that deliberately placed civilians at risk."

The Jewish Institute for National Security Affairs, "2014 Gaza War Assessment: The New Face of Conflict," JINSA-commissioned Gaza Conflict Task Force, March 10, 2015:


"Property that is civilian in appearance and nature may also qualify as a lawful military objective when, due to the nature, location, purpose or use, the property makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Accordingly, deliberately attacking a civilian that has not forfeited protection from attack as the result of direct participation in hostilities, or civilian property that has not been transformed into a military objective, is strictly prohibited. However, pursuant to the laws of armed conflict, both civilians and civilian property may qualify as lawful military objectives, and when this occurs, they may be deliberately attacked."

International Committee of the Red Cross, "Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants:"


"In principle, the IDF (Israel Defense Forces) accepts and applies the principle of distinction. Israel's Manual on the Rules of Warfare (2006) states that 'a distinction has to be made between combatants and non-combatants.' Although the State of Israel is not a party to the Additional Protocols to the Geneva Conventions, it accepts that this provision, as with certain others addressing the principles of distinction and proportionality, accurately reflects customary international law. See Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 at § 20 (11 December 2005)."


Hamas Actions


Israel Defense Forces, "Special Report: Operation Protective Edge" (last updated: January 26, 2015):


"Hamas fires indiscriminately toward Israel's civilian population, and celebrates when Israel's civilians are harmed. These actions are war crimes....

Since the beginning of 2014 until the commencement of Operation Protective Edge, 450 rockets were fired towards millions of Israelis. During the Operation, Hamas and other Palestinian terrorist groups fired over 4,500 rockets at Israel. Almost 70% of Israelis live within range of Hamas' rockets. This includes Israel's largest cities and population centers. The Iron Dome missile defense system intercepted 735 rockets. Each rocket intercepted by the Iron Dome would have hit a populated area...

Hamas, the ruling entity of the Gaza Strip, is responsible for most of the attacks on Israeli population centers. Since Operation Pillar of Defense in 2012, the terrorist organization has increased the size and strength of its rocket arsenal. Terrorist organizations in the Gaza Strip currently possess around 10,000 rockets including long-range missiles such as M-302. Hamas is in control of 6,000 of these rockets. The following is a report from IDF intelligence on terrorist organizations rocket arsenals.


Hamas' Rocket Arsenal

Short range (15-20 km)

  • Over 1,000 units of self-produced rockets (15 km)
  • Over 2,500 units of smuggled rockets (15 km)
  • Approx. 200 units of self-produced Grad rockets (20 km)
  • Approx. 200 units of smuggled Grad rockets (20 km)
  • Medium range (up to 45 km)
  • Approx. 200 units of self-produced improved Grad rockets (45 km)
  • Approx. 1,000 units of smuggled improved Grad rockets (45 km)
  • Medium-Long range (up to 80 km)
  • Over 400 units of self-produced medium range rockets
  • Several dozens of rockets (80 km)

Long range (100-200 km)

  • Tens of long-range rockets (100-200 km)

In Total: Approximately 6,000 rockets...


Hamas uses civilian infrastructure to store and hide these weapons. The terrorist group uses the densely packed civilian areas of the Gaza Strip to embed its weapons arsenal and command centers."

Israel Ministry of Foreign Affairs, "Violations of the Law of Armed Conflict, War Crimes, and Crimes Against Humanity Committed by Hamas and Other Terrorist Organisations During Operation Protective Edge," January 28, 2015:


"Hamas and other Terrorist Organisations in Gaza Committed War Crimes and Crimes Against Humanity By Deliberately Attacking Israeli Civilians Rocket and Mortar Attacks:

Throughout the 2014 Gaza Conflict, Hamas and other terrorist organisations deliberately made Israeli civilians the objects of attacks by way of continuous rocket and mortar fire and tunnel infiltrations leading towards Israeli residential communities. Hamas and these organisations have amply demonstrated their intent to target Israeli civilians through scores of deadly attacks against Israeli civilians in prior years. This illegal intent was reaffirmed by official Hamas statements made during the 2014 Gaza Conflict, such as, 'Our rockets are aimed at the Hebrews, the murderers, the Israelis, the criminals...our missiles accurately target the homes of the Israelis and the Zionists,' and 'Anyone who has a knife, a club, a weapon, or a car, yet does not use it to run over a Jew or a settler, and does not use it to kill dozens of Zionists, does not belong to Palestine.' The intentional targeting of Israeli civilians by rocket, mortar, and tunnel attacks constitutes violations of customary rules of the Law of Armed Conflict, war crimes, and crimes against humanity...

Throughout the 2014 Gaza Conflict, rockets and mortars launched from Gaza by Hamas and other terrorist organisations posed a continuous threat to Israeli civilians. These organisations launched approximately 4,000 rockets and mortar shells at Israel, 10 threatening six million Israeli civilians (almost 70% of Israel's population) within range of the attacks. On average, Israeli civilians faced the threat of almost 80 rocket and mortar launches per day during the 2014 Gaza Conflict - double the intensity of rocket and mortar attacks against Israel during Operation Cast Lead in 2008- 2009. These rockets and mortars killed six civilians in Israel, including a four-year-old child who was killed by a mortar strike while playing inside his family home on August 22. Additionally, rocket and mortar attacks injured approximately 1,600 civilians in Israel, over 270 of whom were children. Across Israel, rockets, mortars, and shrapnel hit apartment buildings, schools, houses, cars, and power lines, causing approximately 100 million NIS (almost 25 million USD) in direct damage to civilian property and 1.7 billion NIS (approximately 433 million USD) in indirect damage to civilians...

In targeting and terrorizing Israeli civilians with rockets and mortars, Hamas and other terrorist organisations in Gaza violated fundamental customary norms of the Law of Armed Conflict that prohibit a party to hostilities from deliberately making civilians the object of attack, and from acts or threats of violence primarily intended to spread terror among the civilian population. Violations of these prohibitions constitute war crimes under customary international law.

Furthermore, when Israelis were killed by rockets and mortars deliberately launched at the Israeli civilian population, these assaults constituted crimes against humanity of murder. In keeping with the definition of crimes against humanity under customary international law, these rocket and mortar launches were conducted by Hamas and other terrorist organisations knowingly and as a matter of policy, as part of a widespread or systematic attack directed at a civilian population. The sheer number of rockets and mortars launched towards Israel; the persistence of such launches for over a decade; consistent statements of intent to harm Israeli civilians dating back to Hamas' establishment; and frequent declarations of responsibility for launches, particularly those directed towards major Israeli cities, among other indications, confirm that the attacks were widespread, systematic, and a matter of organisational policy... Even Palestinian officials have acknowledged that these rocket and mortar launches constitute crimes against humanity: in a television interview, Ibrahim Khreisheh, the Palestinian envoy to the U.N. Human Rights Council, confirmed: "The missiles that are now being launched against Israel - each and every missile constitutes a crime against humanity, whether it hits or misses, because it is directed at a civilian target...

During the 2014 Gaza Conflict, Hamas for the first time utilised a method of targeting civilians not seen in previous rounds of hostilities: cross-border tunnels. Over the course of the 2014 Gaza Conflict, Hamas militants repeatedly infiltrated Israel through secret attack tunnels originating in Gaza and opening close to residential communities in Israel, for the purpose of attacking Israeli civilians and soldiers. In deliberately targeting Israeli civilians by rocket and mortar fire and tunnel attacks, as part of a widespread and systematic policy, these terrorist organisations violated the Law of Armed Conflict and committed war crimes and crimes against humanity."

Alan Baker, "The Latest Hamas-Israel Confrontation - Some Pertinent Legal Points," Jerusalem Center for Public Affairs, July 24, 2014:


"International Crimes and Criminal Responsibility by Hamas:

The terrorist actions practiced by Hamas – both indiscriminate targeting of Israeli towns, villages and civilians, as well as the exposure of its own residents as human shields - are violations of international law and internationally accepted humanitarian norms, specifically, the violation of the rule of distinction, which requires combatants to limit attacks to legitimate military targets.

As such these constitute both crimes against humanity and war crimes, prosecutable before the International Criminal Court (ICC), as well as before municipal courts and tribunals that are guided by universal criminal jurisdiction."

Laurie Blank, "Getting the law right on the Israel-Hamas conflict," The Hill, July 11, 2014:


"Hamas has announced that it is launching rockets at Haifa, at Tel Aviv, at Jerusalem and other Israeli cities. Not at military bases, army units, communication networks or any other military target, but at cities populated by hundreds of thousands, even millions of civilians. The law of war requires that parties distinguish between military and civilian targets and only attack military personnel and targets. Deliberate attacks on civilians and indiscriminate attacks - attacks that are incapable of distinguishing between legitimate targets and civilians - are prohibited and are war crimes.

Hamas and Islamic Jihad fire their rockets with either no regard for the distinction between military and civilian objects or with direct intention to harm civilians and civilian infrastructure. There is no question of taking precautions to protect civilians, whether through warnings or other required measures; rather, every single rocket attack violates the law's most fundamental obligation to protect civilians. And yet the word 'indiscriminate' rarely appears in descriptions of such rocket attacks."