Israel & the International Criminal Court

Hamas and the Rules of International Humanitarian Law: 3 – Human Shields

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

Human Shields

Human shielding involves the use of persons protected by international humanitarian law, such as prisoners of war or civilians, to deter attacks on combatants and military objectives."

Applicable Law


A. Treaty Law


Article 28 of Geneva Convention IV:


"The presence of a protected person may not be used to render certain points or areas immune from military operations."

Article 12(4) of Additional Protocol I of the Geneva Conventions:


"Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety."

Article 51(7) of Additional Protocol I of the Geneva Conventions:


"The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations."

Article 58(b) of Additional Protocol I of the Geneva Conventions:


"The Parties to the conflict shall, to the maximum extent feasible: avoid locating military objectives within or near densely populated areas."


B. Customary Law


ICRC Customary Rule 23:


"Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas."

ICRC Customary Rule 28:


"Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy."

ICRC Customary Rule 29:


"Medical transports assigned exclusively to medical transportation must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy."

ICRC Customary Rule 97:


"The use of human shields is prohibited."


C. Learned jurists and commentary


International Committee of the Red Cross, "Commentary Relating to Rule 97: Human Shields":


In the context of international armed conflicts, this rule is set forth in the Third Geneva Convention (with respect to prisoners of war), the Fourth Geneva Convention (with respect to protected civilians) and Additional Protocol I (with respect to civilians in general). Under the Statute of the International Criminal Court, 'utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations' constitutes a war crime in international armed conflicts.

The prohibition of using human shields is contained in numerous military manuals, many of which extend the prohibition to all civilians. Using human shields constitutes a criminal offence under the legislation of many States. This practice includes that of States not, or not at the time, party to Additional Protocol I or to the Statute of the International Criminal Court. In 1990 and 1991, there was extensive condemnation by States of the use of prisoners of war and civilians by Iraq as human shields, and the United States declared that such use amounted to a war crime. The use of prisoners of war as human shields during the Second World War was the subject of war crimes trials by the UK Military Court at Lüneberg in the Student case in 1946, and by the US Military Tribunal at Nuremberg in the Von Leeb (The High Command Trial) case in 1948. In the Karadžić and Mladić case in 1995 before the International Criminal Tribunal for the former Yugoslavia, the accused were charged with war crimes for using UN peacekeepers as human shields. In its review of the indictments the Tribunal upheld this charge.

With respect to non-international armed conflicts, Additional Protocol II does not explicitly mention the use of human shields, but such practice would be prohibited by the requirement that "the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations". It is significant, furthermore, that the use of human shields has often been equated with the taking of hostages, which is prohibited by Additional Protocol II, and by customary international law (see Rule 96). In addition, deliberately using civilians to shield military operations is contrary to the principle of distinction and violates the obligation to take feasible precautions to separate civilians and military objectives (see Rules 23–24).

Several military manuals which apply in non-international armed conflicts prohibit the use of human shields. The legislation of several States criminalizes the use of human shields in non-international armed conflicts. The use of human shields in non-international armed conflicts has been condemned by States and by the United Nations, for example, with respect to the conflicts in Liberia, Rwanda, Sierra Leone, Somalia, Tajikistan and the former Yugoslavia.

No official contrary practice was found.

The ICRC has reminded parties to both international and non-international armed conflicts of the prohibition of using human shields."

Yoram Dinstein, "Distinction and Loss of Civilian Protection in International Armed Conflict," U.S. Naval War College International Law Studies, Volume 84, International Law and Military Operations, 2008:


"lrrefutably, the prohibition of the use of civilians as human shields mirrors customary international law. Utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations is recognized as a war crime by Article 8(2)(b)(xxiii) of the Rome Statute. It is incontrovertible that when combatants (including civilians directly participating in hostilities) surround themselves by civilians, this is a breach of the law of international armed conflict. All the same, it is necessary to distinguish between voluntary and involuntary human shields. As the Supreme Court of Israel (per President Barak) held in the Targeted Killings case, whereas involuntary human shields are victims, voluntary human shields are to be deemed civilians who take a direct part in hostilities.' That being the case, voluntary human shields are targetable and, of course, they 'are excluded in the estimation of incidental injury when assessing proportionality.'

What if, contrary to the law of international armed conflict, involuntary human shields are actually compelled to screen a military objective? Article 51 (8) of Protocol I sets forth that a violation of the prohibition of shielding military objectives with civilians does not release a belligerent party from its legal obligations vis-a.-vis the civilians. What this means is that the principle of proportionality in attack remains in effect. I do not deny that the principle of proportionality must still govern the planning of an attack against a military objective screened by involuntary civilian human shields. However, in my opinion, the test of excessive injury to civilians must be relaxed in such exceptional circumstances. That is to say, to my mind, the appraisal of whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that, by dint of the large (albeit involuntary) presence of civilians at the site of the military objective, the number of civilian casualties can be expected to be higher than usual. To quote Louise Doswald-Beck, '[t]he Israeli bombardment of Beirut in June and July of 1982 resulted in high civilian casualties, but not necessarily excessively so given the fact that the military targets were placed amongst the civilian population.' This approach is confirmed by the 2004 UK Manual on the Law of Armed Conflict: 'Any violation by the enemy of this rule [the prohibition of human shields] would not relieve the attacker of his responsibility to take precautions to protect the civilians affected, but the enemy's unlawful activity may be taken into account in considering whether the incidental loss or damage was proportionate to the military advantage expected.'

Customary international law is certainly more rigorous than Protocol I on this point. It has traditionally been grasped that, should civilian casualties ensue from an illegal attempt to shield a military objective, their blood will be on the hands of the belligerent party that abused them as human shields. The long and the short of it is that a belligerent party is not vested by the law of international armed conflict with the power to block an otherwise lawful attack against military objectives by deliberately placing civilians in harm's way."

Nils Melzer, Targeted Killing in International Law, Oxford University Press 2008, pg. 346:


"Voluntary human shields: The question is sometimes raised as to whether civilians lose protection against direct attack if the attempt, by their mere physical presence in or at a legitimate military objective, to persuade hostile forces not to attack that objective for fear of causing excessive collateral damage (so-called 'voluntary human shields'). It is important to note that civilians 'shielding' a military objective exclusively with their own legal entitlement to protection against direct attack do not thereby render attacks against that military objective illegal under IHL [international humanitarian law]. While their presence in the vicinity must be taken into consideration in the proportionality assessment, the relevant standard of 'excessiveness' if flexible enough to take account of the fact that these civilians exposed themselves voluntarily to the risk of incidental injury or death. Although often a political nuisance of considerable proportions, the legal obstacle posed by 'voluntary human shields' is of insignificant impact for the lawfulness of military operations."

Laurie R. Blank, "Taking Distinction to the Next Level: Accountability for Fighters' Failure to Distinguish Themselves from Civilians," 46 Val. U. L. Rev. 765, 2012:


"The tragically all-too-common practices of fighters disguising themselves as civilians, launching attacks from and locating military objectives in civilian areas, and using civilians as human shields raise grave concerns for the implementation of LOAC. These tactics violate LOAC and also increase the danger that civilians face during armed conflict. Still worse, in many contemporary conflicts, militants or weaker states fighting against more powerful states use these tactics to achieve broader strategic purposes by increasing civilian casualties-such as diminished civilian support for the war effort, claims of war crimes by the stronger military, or strategic and policy limitations on the use of force that impact the outcome of the conflict. Enforcing the obligations of distinction at the tactical level of the conduct of militants and fighters thus goes well beyond the protection of civilians in the immediate vicinity of and affected by a particular incident-it can have substantial consequences for the protection of civilians writ large during conflict.

And yet, as the discussion below demonstrates, little to no effort is made to hold fighters accountable-or even to condemn their failure to distinguish themselves from innocent civilians and for their use of the civilian population for their own gain in direct contravention of LOAC's fundamental principles...

Human shielding refers to the practice of civilians protecting military objectives from attack by gathering at the site of the objective and using their civilian immunity to deter attacks. In effect, human shielding directly undermines LOAC's delicate balance between military necessity and humanity by using the protections of the latter principle for military purposes. Multiple provisions of the Geneva Conventions and Additional Protocol I prohibit the use of the civilian population as a shield, with the primary prohibition appearing 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 in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

The prohibition on human shielding is part of customary international law and is included in numerous military manuals of countries around the world. In addition, it is a war crime under the Rome Statute of the International Court. The use of human shields flies directly in the face of a party's basic obligations under the principle of distinction by deliberately mingling civilians with military objects. As a U.N. report investigating an attack on U.N. forces in Somalia in 1993 stated:

No principle is more central to the humanitarian law of war than the obligation to respect the distinction between combatants and non-combatants. That principle is violated and criminal responsibility thereby incurred when organizations deliberately target civilians or when they use civilians as shields or otherwise demonstrate a wanton indifference to the protection of noncombatants....

[H]uman shielding poses a direct and severe challenge to the principle of distinction and to the protection of civilians during armed conflict. Indeed, those who use human shields exploit the obligation of distinction and upend LOAC's balance between military necessity and humanity by deliberately mingling civilians and military objects and, still worse, using civilians directly to protect military targets.

These perpetrators thus take the already highly problematic practice of fighting from within a civilian population to the next level-from exposing civilians to the consequences of military operations to using them as a shield, and thus potentially guaranteeing their death or injury. Until such crimes are prosecuted extensively-and as the specific crime of human shielding rather than as a component of another crime-the practice will not stop, and civilians will continue to be used as pawns by parties seeking any advantage, even at the cost of causing the death of their own civilians in many cases."

Arne Willy Dahl (former Attorney General of the Norwegian Armed Forces), "International laws apply to Gaza as well," Europe Israel Press Association, July 30, 2014:


"A controversial question is how one should relate to voluntary humans shields; i.e. civilians placing themselves on or in front of military targets; so as the enemy is unable to attack them without causing civilian casualties which may eventually be regarded as disproportionate. It is a war crime to employ human shields, whether these are volunteers or not. The question is what the opposing party is to do in such a situation. Many would state that participation as a voluntary human shield equates direct participation in hostilities; and that voluntary human shields may therefore legally be attacked.

I do not agree with this; however, I hold these do not have the same right to protection as civilians in general. Involuntary humans shields, including children who do not have the prerequisites to understand what they are taking part in, must however be considered. If significant civilian casualties can be attributed to the use of human shields; in particular if these are involuntary; these (casualties) should be the responsibility of those behind this."

Tali Kolesov Har-Oz And Ori Pomson, "The Use of Human Shields and International Criminal Law," Opinio Juris, August 1, 2014:


"The specific elements relevant to the definition of the crime of using human shields in the International Criminal Court's Elements of Crimes document are as follows:

1. The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict.

2. The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations.

In order to fulfil the required actus reus in Element 1 of the crime, it is not necessary to force civilians to relocate close to a military objective. The mere placement of military assets in the vicinity of civilians fulfils this requirement.

Since the actus reus of this crime is rather broad, it seems that great emphasis is placed on the mens rea. Thus, in order to be considered a crime of using human shields, the actus reus must be performed with the intention to "shield a military objective from attack or shield, favor or impede military operations." Additionally, this crime does not require any result; rather, it focuses solely on the acts and intention of the belligerent fearing an attack. Admittedly, there has not been international jurisprudence when no harm has occurred, which may cast doubts upon the customary nature of this alternative. In this case, the discussion is purely theoretical, since the use of human shields by Hamas has often resulted in actual harm. Nevertheless, it should be noted that some actions involving the use of human shields can also be examined through the prism of other war crimes, such as using children to actively participate in hostilities ... or generally Common Article 3 to the Geneva Conventions of 1949 (art. 8(2)(a), (c)), which have been established as customary international crimes."


Hamas Actions


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:


"During the 2014 Gaza Conflict, not only Israeli civilians fell victim to Hamas and other terrorist organisations' deliberately harmful military strategies, but Gazan civilians as well. These groups knowingly endangered civilian life and property in Gaza by locating their military operations and assets within and around civilian buildings in densely-populated civilian areas. These organisations conducted hostilities from built-up civilian areas in order to shield their military objectives from IDF attack, in the knowledge that Israel would take precautions and even call off strikes in order to spare civilian life and property. Thus, Hamas and other terrorist organisations in Gaza launched some 550 rockets and mortars within or nearby sensitive buildings such as schools, U.N. facilities, hospitals, and places of worship, and made extensive use of these and other civilian structures for command and control operations; military communications; sniper posts; weapons storage; and cover for combat tunnels. These organisations further exacerbated harm to civilian life and property in Gaza by extensive booby-trapping of civilian structures and residential streets. In deploying these strategies, Hamas and other terrorist organisations were not only directly responsible for the scale of the civilian casualties and property damage in Gaza during the 2014 Gaza Conflict, but also violated the Law of Armed Conflict and committed war crimes...

Aside from failing to take measures to protect Gazan civilians, Hamas and other terrorist organisations actively exploited civilian structures and civilians in and around these sites to shield their assets and operations from attack. A Hamas Al-Qassam Brigades urban combat manual found by the IDF during the ground operation clearly attests to a deliberate strategy of exploiting Gazan civilians in order to impede IDF attack and shield military activities. The manual explains to militants that 'the presence of civilians create many pockets of resistance' that create 'problems opening fire' for the IDF. Another Al-Qassam Brigades combat manual found during the ground operation instructs militants 'to lay ambushes in residential areas and to transfer combat from open areas to built-up, closed areas, which serves the 'resistance' and Jihad activities.' Using the presence of civilians to shield military targets from attack is prohibited by customary international law and constitutes a war crime...

This embedding strategy gave rise to additional violations of customary international law and war crimes. Specifically, on the many occasions in which these organisations exploited medical units and transports for military use and used these specially-protected facilities to shield their assets and operations from IDF attack, they violated norms of customary international law mandating respect and protection of these facilities and prohibiting the use of these facilities for shielding military objectives from attack.

Moreover, on the many occasions in which Hamas and other terrorist organisations deliberately exploited the presence of civilians in and around the civilian sites in which they operated in order to shield their military assets from attack, they violated the prohibition under customary international law against relying on the presence of civilians to shield military targets from attack and committed war crimes...

Customary international law forbids parties to hostilities not only from passively exploiting the presence of civilians in order to shield military targets from attack, but also from taking active steps to ensure civilian presence for this end. Specifically, parties are forbidden from directing the movement of the civilian population and of individual civilians for the purpose of shielding military objects and military operations from attack. When such direction actually results in the use of civilians for shielding, such conduct constitutes a war crime.

During the 2014 Gaza Conflict, Hamas and other terrorist organisations in Gaza took positive actions to ensure civilian presence in the densely-populated areas from which they operated by directing civilians either to remain in or to return to sites or areas of impending IDF activity. These organisations directed civilian movement for the purpose of shielding both by verbal means - by waging an official campaign pressuring civilians to disregard Israel's evacuation warnings prior to impending IDF military activity - and by explicit physical coercion."

Israel Ministry of Foreign Affairs, "Hamas attacks from civilian population areas," July 16, 2014:


As Hamas fires rockets on Israel, it systematically exploits Palestinian civilians as human shields for military targets in Gaza. Hamas positions its rocket launching sites, weapons caches, and command centers in areas surrounded by civilian buildings, and stores explosives and weapons in and around schools, mosques, residential homes and other civilian infrastructures.

Mosques in the Gaza Strip are used not only for worship but also for diverse military and political purposes, such as recruiting operatives for terrorist activity, storing weapons, meeting places for terrorist operatives, points of departure for terrorist attacks, training sites, places for firing rockets and mortar bombs and centers for political and ideological activity.

Israel Ministry of Foreign Affairs, "Hamas use of civilians as human shields," July 20, 2014:


Hamas takes advantage of the fact that the IDF avoids attacking targets where it is known there are civilians.

Hamas and the other terrorist organizations in the Gaza Strip have adopted various tactics of using civilians as human shields. One of them is encouraging civilians to gather on roofs to prevent terrorists and their houses from being attacked by the Israeli Air Force.

1. Hamas spokesman, Sami Abu Zuhri was interviewed on 8 July, and called on the Palestinian people to use the human shield tactic to defend their homes: "We in the Hamas movement call on our people to adopt this procedure" (Source: Memri and Channel 10)...

2. Hamas' ministry of the interior in Gaza issued on 10 July an official announcement to the residents of the Gaza Strip, telling them not to pay attention to IDF announcements about vacating their homes. The announcement calls "on our dear residents to reject these messages, not to vacate their homes and to conduct themselves calmly. Should the need arise, call the following toll free numbers" (Source: Facebook page of the ministry of the interior in the Gaza Strip, July 10, 2014)...

3. Palestinian refugees issued similar instructions to the residents of Gaza, calling upon them to ignore IDF evacuation warnings while falsely assuring them that Hamas would protect them from danger. On July 15, the Hamas-run newspaper Al-Risalah (shown here) reported that Adnan Okal, the head of the Committee, called civilians who evacuated to UNRWA schools to return to their homes. He emphasized that the "resistance" will not cease to fight and neutralize any attempt at advance by the IDF.

4. A similar announcement was issued by the Hamas authorities in Gaza on 16 July.

Hamas spokesman Mushir al-Masri called on 16 July to the residents of Gaza not to leave their houses and ignore the IDF's warnings: 'Stay in your homes as we promised you; do not comply with the war of rumors and the psychological warfare.'"

Israel Ministry of Foreign Affairs, "Hamas terrorists confess to using human shields," August 27, 2014:


"Throughout Operation Protective Edge, the Israel Security Agency questioned dozens of Hamas terrorists who fought against IDF forces in Gaza. Several of these operatives admitted to using civilian buildings as cover for their military activity.

While being questioned by the Israel Security Agency (ISA or Shin Bet Security Service), Hamas terrorists confessed to using mosques and hospitals as hiding places during Operation Protective Edge. According to their testimony, they also built tunnels, launching sites and weapons-storage facilities near playgrounds in Gaza.

During recent ISA questioning, terrorist Abd Al-Rahman Ba'aloosha said that Hamas regularly gathered its fighters in the Al-Safa and Al-Abra mosques of Khan Yunis. According to Ba'aloosha, Hamas operatives repeatedly met inside a bunker located underneath the Al-Abra mosque. Another terrorist told Israeli investigators that Hamas first recruited him during a meeting inside the Al-Abra mosque.

Several Hamas fighters said that the terrorist organization used mosques to train operatives and hide explosives. Mohammed Ramadan admitted that Hamas commanders taught him to fire anti-tank missiles inside the Al-Shafi'i mosque in Khan Yunis. The mosque, he said, served as a training base for the Al-Qassam Brigades, Hamas' military wing.

Throughout Operation Protective Edge, the IDF uncovered significant evidence indicating that Hamas used mosques for terror purposes. On several occasions, Israeli forces documented rocket launches from inside mosques or nearby areas. While searching one mosque in Gaza, soldiers uncovered dozens of weapons and shafts leading into underground attack tunnels.

During ISA questioning, one terrorist confessed that mosques were used to hide guns, RPGs and other kinds of weaponry. Another Hamas operative admitted that hospitals and schools - including the Nasser and Hilal hospitals of Khan Yunis - were used for the same purposes."

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


"Hamas places weapons and missile launchers in densely populated areas. They also send men, woman and children to act as human shields for terrorists. Innocent bystanders can be killed as a result of Hamas' abuse of its own civilians. Instead of keeping its citizens out of harm's way, Hamas encourages and even forces Gazans to join its violent resistance against Israel...

International law explicitly forbids directing civilians to shield military objectives from attack:

The terrorist organization Hamas deliberately uses Palestinian civilians as human shields, and has a long history of doing so. Hamas hopes to achieve two goals by using human shields: to deter IDF attacks on legitimate military targets, and to exploit any incidental harm that is caused as a result of IDF military activity.

Hamas' use of human shields is a clear and deliberate violation of international law. Under the law of armed conflict, the presence of the civilian population cannot be used to render certain points immune from military operations, or to shield one's own military operations. International law also explicitly forbids directing the civilian population to shield military objectives from attack.

Hamas' actions in this regard are clear violations of international law and are war crimes...

When terrorist organizations such as Hamas deliberately use civilian homes for terrorist purposes, it is unavoidable that some civilians will be harmed when the IDF acts against these targets. Hamas exploits such instances to claim that the IDF deliberately seeks to harm the civilian population in Gaza, but fails to acknowledge that it has intentionally put these Palestinian civilians in grave danger by masking its terrorist activities behind a civilian facade."

Charles J. Dunlap, Jr., "Has Hamas Overplayed Its Lawfare Strategy?" Justsecurity.org, August 5, 2014:


"Hamas is employing a 'lawfare' strategy. A lawfare strategy uses (or misuses) law essentially as a substitute for traditional military means; it is employing law much like any "weapon" to create effects or obtain results in an armed conflict that can be indistinguishable from those typically produced by kinetic methods.

There are many versions of lawfare, but in this case Hamas is attempting to use the fact of Palestinian civilian casualties to cast Israelis as war criminals. In doing so it seems that Hamas is hoping to achieve their aims not by defeating Israelis on a Gaza battlefield, but rather by delegitimizing Israel in the eyes of the world community by establishing them as lawbreakers in an era when adherence to the rule of law is so important to democracies...

Most problematic may be a growing belief that, as already suggested, Hamas is deliberately jeopardizing lives of Palestinians in order to pursue its lawfare strategy. Indeed, Hamas seems to be admitting as much. USA Today quotes a Hamas spokesman Sami Abu Zuhri using the word "strategy," in commending people for "ignoring Israeli warnings" to evacuate before a bombing: "The fact that people are willing to sacrifice themselves against Israeli warplanes in order to protect their homes, I believe this strategy is proving itself."

To many observers Hamas's lawfare strategy is obvious. CNN analyst Michael Oren quotes former President Bill Clinton as saying that Hamas "has a strategy designed to force Israel to kill their own [Palestinian] civilians so that the rest of the world will condemn them."

Of even more significance may be the claim in Algemeiner Journal that Turki al Faisal, who once headed Saudi Arabia's intelligence services, said "Hamas is responsible for the slaughter in the Gaza Strip." This is especially damaging given other reports that many Arab leaders are now assessing Hamas as "worse than Israel."

Richard Kemp, "Hamas Human Shields are to Blame, Not Israel," The Times, July 25, 2014:


"Hamas cannot defend its rocket sites with ack-ack guns and fighter aircraft. Instead it uses human shields, deliberately locating missiles among the civilian population... The tragedy of so many civilian casualties is to a large extent due to Hamas's policy of compelling men, women and children to stay in the path of danger."

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


"Deliberately storing and firing rockets from within, or in close proximity to hospitals, mosques, schools and houses in densely-populated areas, both to shield and camouflage rocket emplacements and in order to deliberately generate Israeli military action against such emplacements and thereby endanger Palestinian civilians, constitutes a war crime.

The storing of rockets in an UNRWA school in Gaza is perhaps a typical example of this crime, which generated a statement of condemnation by UNRWA itself.

The use of one of Gaza's central mosques – the Al-Farouq Mosque in the Nuseirat refugee camp – for storing rockets and weapons and as a compound for Hamas operations is a further example of this crime."

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


"Hamas's use of civilians and civilian buildings in Gaza as a shield is well known. Media reports tell of rockets being launched from residential buildings and schoolyards, munitions stored in houses, mosques and hospitals, Hamas leaders using civilian homes as command posts, and civilians being encouraged to go up on their roofs as human shields. These reports unfortunately rarely, if ever, mention that such conduct violates the law and, even more important, puts civilians at ever greater risk of death and injury.

Using human shields is not a romanticized effort at neighborhood defense - it is a war crime. Using hospitals as munitions depots or sites for rocket launchers endangers every civilian who needs medical treatment, because once the hospital is used for military purposes, it loses its protection from attack. Using houses for all manner of military activity amounts to using the civilian population as a shield and risks the life of every civilian in the neighborhood. This conduct demonstrates that Hamas not only views every civilian and every city in Israel as a target - which is wholly illegal - but that it also views every civilian and every neighborhood in Gaza as an expendable pawn in a propaganda war, a tragic and equally illegal approach."

Tali Kolesov Har-Oz And Ori Pomson, "The Use of Human Shields and International Criminal Law," Opinio Juris, August 1, 2014:


"It is widely reported that the acts of Hamas clearly fall within the actus reus of the crime, through the placement of ammunition, rocket launchers and other military assets in civilian homes, mosques, hospitals and schools. While this practice has been the focus of widespread condemnation (see here a statement by the US Secretary of State), Hamas has openly and explicitly endorsed this policy. For example, a Hamas spokesperson called on Palestinians in Gaza to "oppose the Israeli occupation with their bodies alone," explaining that this was an effective way to thwart Israel's attacks. This was followed by other, similar statements, such as this one by Hamas's Interior Minister. These are all examples of the ways in which Hamas "took advantage of the location of one or more civilians." The particular intent behind these acts is also easily established. In these statements, Hamas officials admit openly and explicitly that their intention is to use the civilian population in Gaza in order to shield their rockets and operatives. Such statements raise interesting questions regarding the criminal responsibility of senior Hamas officials that go beyond the scope of the present post.

The definition of the crime as one that does not require any specific result is an indication that the rationale behind the criminalization of using human shields may go beyond the protection of the civilian population. While the use of human shields obviously endangers those being used in this manner, it also greatly threatens respect for and adherence to the law, and undermines the most basic foundations of IHL. As stated by Prof. Michael Schmitt, the use of human shielding turns the "military necessity-humanitarian considerations balance on its head through use of the former to achieve the latter." In this regard, the use of human shields is an abuse of the legal protection awarded to civilians. This practice unfairly shifts the burden of consequences for the harm caused to the civilians acting as human shields to the law-complying party to the conflict. Thus, it is crucial that the international community strive to deter this practice."

Mudar Zahran, "Gazans Speak Out: Hamas War Crimes," Gatestone Institute, September 19, 2014:


"Although Gazans, fearful of Hamas's revenge against them, were afraid to speak to the media, friends in the West Bank offered introductions to relatives in Gaza...


S. a medical worker, said:

'The Israeli army sends warnings to people [Gazans] to evacuate buildings before an attack. The Israelis either call or send a text message. Sometimes they call several times to make sure everyone has been evacuated. Hamas's strict policy, though, was not to allow us to evacuate. Many people got killed, locked inside their homes by Hamas militants. Hamas's official Al-Quds TV regularly issued warnings to Gazans not to evacuate their homes. Hamas militants would block the exits to the places residents were asked to evacuate. In the Shijaiya area, people received warnings from the Israelis and tried to evacuate the area, but Hamas militants blocked the exits and ordered people to return to their homes. Some of the people had no choice but to run towards the Israelis and ask for protection for their families. Hamas shot some of those people as they were running; the rest were forced to return to their homes and get bombed. This is how the Shijaiya massacre happened. More than 100 people were killed.'


Another Gazan journalist, D., said:

'Hamas fired rockets from next to homes. Hamas was running from one home to another. Hamas lied when it claimed it was shooting from non-populated areas. To make things even worse for us, Hamas would fire from the balconies of homes and try to drag the Israelis into door-to-door battles and street-to-street fights -- a death sentence for all the civilians here. They would fire rockets and then run away quickly, leaving us to face Israeli bombs for what they did. They are cowards. If Hamas militants are not afraid of dying, why do they run after they fire rockets from our homes? Why don't they stay and die with us? Are they afraid to die and go to heaven? Isn't that what they claim they wish?'


K, another graduate student at an Egyptian university who had gone to Gaza to see his family but was unable to leave after the war started, said on July 22:

'When people stopped listening to Hamas orders not to evacuate and began leaving their homes anyway, Hamas imposed a curfew: anyone walking out in the street was shot without being asked any questions. That way Hamas made sure people had to stay in their homes even if they were about to get bombed. God will ask Hamas on judgment day for those killers' blood.'

I asked him if Hamas used people as 'human shields.' He said: 'Hamas held the entire Gazan population as a human shield. My answer to you is yes.' Palestinian Authority President Mahmoud Abbas told the press on September 6 that Hamas had killed 120 Fatah members who broke the curfew.


T., a former Hamas Ministry officer, said: 'Hamas fires from civilian areas for a good reason: The Israelis call the civilians and give them ten minutes to evacuate. This gives Hamas time to fire another rocket and run away.'

Why, I asked, did Hamas not allow people to evacuate?

'Some people say Hamas wants civilians killed in order to gain global sympathy, but I believe this is not the main reason. I think the reason is that if all the people were allowed to evacuate their homes, they all would have ended up in a certain area in Gaza. If that happened, it would have made the rest of Gaza empty of civilians, and the Israelis would have been able to hit Hamas without worrying about civilians in all those empty areas. Hamas wanted civilians all over the place to confuse the Israelis and make their operations more difficult.'


S., a Gazan businessman, said:

'The cease-fire Hamas agreed to carried the same conditions the Egyptians and the Israelis offered during the second week of the war -- after only 160 Gazans had been killed. Why did Hamas have to wait until 2,200 were killed, and then accept the very same offer? Hamas has blackmailed the world with the killed Gazan civilians to make itself look like a freedom fighter against an evil Israel. Hamas showed Gazans that it could not care less for their blood and their children. And why should Hamas care? Its leaders are either in mansions in Qatar or villas in Jordan. Mashaal [Khaled Mashaal, the head of Hamas] is in Qatar, Mohammad Nazzal is in Jordan and Abu Marzouk is in Cairo: why should they want a ceasefire? Everyone here in Gaza is wondering why Hamas rejected so many ceasefires. Hamas knows it will not defeat Israel's army, so why did it continue fighting? The answer is simple: Hamas wanted us butchered so it could win the media war against Israel by showing our dead children on TV and then get money from Qatar.'...


O., a researcher who lives in Gaza Strip's second largest city, Khan Younis, said:

'You have to keep in mind that Hamas is not concerned with our conditions as Gazans. After all it is our children who are dying, not the children of Hamas's leaders. Hamas is weak now, and I believe it lost most of its tunnels... When Hamas locks people inside homes about to be bombed, when it kills people protesting against it and when it executes alleged traitors without even a trail, these are war crimes.'...


M., a Gazan television producer, stated:

'Hamas wanted the dead bodies to make Israel look ugly. The media has exerted a huge pressure on Israel for every dead Gazan. In that sense, Hamas's tactic has worked, and we have seen more Western tolerance of Hamas, especially in Europe. Of course Hamas doesn't care if we all die so long as it achieves its goals.'...


H., who did not want his profession to be mentioned, lost one of his legs in an Israeli raid. I asked him who he thought was responsible for his injury. He stated:

'Hamas was. My father received a text-message from the Israeli army warning him that our area was going to be bombed, and Hamas prevented us from leaving. They said there was a curfew. A curfew, can you believe that?... I know Hamas has fired rockets from every residential spot in Gaza. If that was not hiding behind civilians, then it was stupidity and recklessness.'

Adam Chandler, "Hamas Quietly Admits It Fired Rockets from Civilian Areas," The Wire, September 12, 2014:


"...Throughout the seven-week conflict, Israel frequently charged that Hamas had been using schools, hospitals, and homes to fire rockets into Israel. The public line uttered by Israeli Prime Minister Benjamin Netanyahu and his surrogates was that Hamas was committing 'double war crimes' by firing from heavily populated civilian centers (using human shields) into Israeli towns (to attack other civilians.)

What eventually became the story's slightly buried lede was the peculiar admission by Hamas itself that it had indeed fired from population centers, only by 'mistake.' As a senior Hamas official Ghazi Hamad told the Associated Press:

'The Israelis kept saying rockets were fired from schools or hospitals when in fact they were fired 200 or 300 meters (yards) away. Still, there were some mistakes made and they were quickly dealt with.' He added, inaccurately, that Gaza is 'one uninterrupted urban chain.'..."

"Hamas's Violations of International Law," The Lawfare Project:


"Hamas Violations:

Hamas routinely launches rocket attacks from the most densely populated areas of Gaza, although the majority of Gaza is sparsely populated.

A crew from India's NDTV videotaped Hamas militants assembling and firing a rocket from under a tent located in a densely populated civilian area.

FRANCE 24 footage showed a Hamas rocket-launching pad located in the heavily populated Gaza City, less than 50 meters from a hotel where the majority of international media was staying and 100 meters from a UN building 'clearly marked with the trademark light blue flag.' Children could be seen playing on and near the rocket launchers.

A Hamas bomb-making manual captured during Operation Protective Edge (translated and published by the IDF) 'recommends teaching civilians how to build and store bombs in their homes.' According to the manual, the goal is 'to transfer combat from open areas to built-up urban areas, which serves the 'resistance' [i.e., Hamas] and fighters of Islamic Jihad...

According to numerous reports, one of Hamas's main command bunkers is located beneath Shifa Hospital, the largest medical complex in Gaza. The hospital "has become a de facto headquarters for Hamas leaders, who can be seen in the hallways and offices." In 2006, PBS aired a documentary showing gunmen roaming the halls of the hospital, intimidating staff, and denying them access to protected locations within the building.

A Finnish journalist confirmed that Hamas launched rocket attacks from the grounds of Shifa Hospital...

Hamas has reportedly been using ambulances to transport its members around Gaza and for military activities....

According to Professor Alan Dershowitz, Hamas launches rocket attacks from densely populated areas and builds shelters for its terrorists (rather than its civilians) to 'use[] its civilians to protect its terrorists' rather than vice versa. This use of civilians as human shields is an 'absolute war crime,' with 'no exceptions or matters of degree, especially when there are alternatives.' Dershowitz continued, 'On the other hand, shooting at legitimate military targets, such as rockets and terror tunnels is permitted, unless the number of anticipated civilian casualties is disproportionate to the military importance of the target. This is a matter of degree and judgment, often difficult to calculate in the fog of war. The law is also clear that when a criminal takes a hostage and uses that hostage as a shield from behind whom to fire at civilians or police, and if the police fire back and kill the hostage, it is the criminal and not the policeman who is guilty of murder. So too with Hamas: when it uses human shields and the Israeli military fires back and kills some of the shields, it is Hamas who is responsible for their deaths.' The EU has 'strongly condemn[ed] calls on the civilian population of Gaza to provide themselves as human shields.'

A senior UN official, John Ging, confirmed that Hamas terrorists 'are firing their rockets into Israel from the vicinity of UN facilities and residential areas,' thereby putting UNRWA staff and students in harm's way and using Gaza's civilians as human shields.

Hamas's Interior Ministry orders Palestinian civilians not to heed Israeli warnings distributed in areas of potential Israeli military attack because Hamas claims that such warnings are distributed to cause confusion among civilians.

Hamas spokesman Sami Abu Zuhri admitted on Al-Aqsa TV that Hamas continues to encourage civilians to act as human shields: 'People are reverting to the (human-shield) method, which proved very successful in the days of martyr Nizar Riyan. This attests to the character of our noble, Jihad-fighting people, who defend their rights and their homes with their bare chests and their blood. The policy of people confronting the Israeli warplanes with their bare chests in order to protect their homes has proven effective against the occupation. Also, this policy reflected the character of our brave, courageous people. We in Hamas call upon our people to adopt this policy, in order to protect the Palestinian homes.'

Secretary of State John Kerry condemned Hamas practice of using innocent lives of civilians as shields."

Adam Kredo, "Hamas orders civilians to die in Israeli airstrikes," The Washington Times, July 10, 2014:


"Hamas' Interior Ministry has ordered residents of the Gaza Strip to remain in their houses if they are about to be bombed by the Israelis, a move that effectively turns citizens into human shields and is intentionally meant to boost the casualty rate, according to a copy of the order published by Hamas.

Israel warns Gaza residents of air strikes before they take place so innocent civilians have time to flee and seek shelter.

The latest Hamas order that citizens ignore Israel's warnings and stay put is a clear effort by the terror group to increase the death count and apply pressure on Israel to cease its military campaign meant to end Hamas's attacks.

'The interior ministry warned citizens about Israel sending messages telling them to leave their houses,' according to translations of the official Arabic statement provided by Oren Adaki, an Arabic language specialist at Foundation for Defense of Democracies (FDD).

'The goal of these actions is to create confusion among the citizens,' the Interior Ministry said, instructing 'all citizens to not heed these messages from Israel.'"

Editorial Board, "Hamas is playing a dangerous game with Gazan lives," The Washington Post, July 15, 2014:


"So far Hamas's military campaign against Israel has been a dismal failure... Yet Hamas on Tuesday rejected an Egyptian cease-fire proposal that was supported by Western governments and the Arab League and had been accepted by Israel. Why would Hamas insist on continuing the fight when it is faring so poorly? The only plausible answer is stomach-turning: The Islamic movement calculates that it can win the concessions it has yet to obtain from Israel and Egypt not by striking Israel but by perpetuating the killing of its own people in Israeli counterattacks. More than 200 people, including a number of children, have already died in Gaza; Hamas probably calculates that more deaths will prompt Western governments to pressure Israel to grant Hamas's demands.

So far, the tactic is not working. Secretary of State John F. Kerry on Tuesday condemned Hamas for rejecting the cease-fire and 'us[ing] the innocent lives of civilians . . . as shields.' But Hamas's commanders, who have burrowed into underground bunkers, appear to be doubling down. They are urging civilians who have left their homes to return, including some 15,000 who evacuated the northern part of Gaza in response to Israeli warnings."