About 5 per cent of Hamas rockets misfire and land on Gazan targets, such as one in a hospital and another in a market last week.
Gaza is a suicide bomb. It is rigged by its leaders to explode.
This is not a metaphor. It is a war crime. It makes the calculus of proportionality in the use of armed force by the Israeli Defence Forces complex and uncertain.
The Hamas use of suicide bombings is well-developed. A decade ago, it involved the leadership preparing vulnerable Arab individuals to end their lives by blowing up Jews in Israeli cities. The use of Hamas towns and local populations in their entirety as huge suicide bombs to kill Israeli soldiers drawn into them by repeated Hamas provocations is an innovation.
There is clear and abundant evidence of this strategy in leadership declarations of it and in the use of civilian shields, booby traps, refusal of humanitarian ceasefires and lack of civilian protections. In a single street last week, 19 of 28 buildings were found to be booby-trapped. More than 1000 improvised explosive devices have been used by Hamas in Gazan cities so far.
Towns have been retrofitted for their apocalypse. Substantial parts of the neighbourhood of Shej’ayia, a Hamas stronghold close to the Israeli border and repeatedly used as a launching point for rockets hidden in homes, is in ruins. The IDF methodically destroyed attack tunnels, bunkers, rocket launchers, weapons dumps and munitions factories there, and responded to sniper fire and anti-tank missile ambushes from surrounding buildings.
Despite the elaborate preparations for war with Israel, the Hamas leadership built no public bomb shelters. Meanwhile, that leadership is safely in its command and control centre hidden in a part of the tunnel complex reported as located under al-Shifa hospital, Gaza’s largest. Self-preservation while manipulating others to their deaths is consistent with the leadership pattern for running of suicide bombers.
At least 34 sophisticated interconnected tunnels with hundreds of exit points that snake from Gaza into Israel have been discovered so far. The IDF has estimated that the concrete poured into the tunnel project could have built two hospitals, 20 schools, 20 healthcare centres or 100 kindergartens.
Hamas rocket and mortar fire from the shelter of local schools, hospitals and markets has been photographed by Israeli drones and by the occasional foreign journalist who is leaving and not intending to return. About 5 per cent of Hamas rockets misfire and land on Gazan targets, such as one in a hospital and another in a market last week. Three rocket caches at three UN schools have been discovered in the past fortnight. Ironically, in each case, the rockets were handed by UN employees, who are mostly locals, back to Hamas, which is the local government authority with which the UN co-operates. On Wednesday, three Israeli soldiers were killed when a booby-trapped UN health clinic building was blown up around them by Hamas as they were taking steps to protect the clinic while securing a tunnel entrance underneath it. The carnage is colossal.
Hamas was elected in 2005 - an extreme Islamist organisation proscribed as terrorist in Western countries - and there have been no mass protests or revolts against this government, in contrast to the recent ones in Egypt, Iraq, Syria and Turkey. Nevertheless, many Gazans object to being used as suicide bombs or human shields. At a local Gazan protest against the war, Hamas gunmen shot and killed 20 unarmed protesters on Monday last week and summarily executed 10 alleged collaborators with Israel the same day. Not everybody wants to die for the Islamist cause.
International humanitarian law requires that the armed force used to achieve an objective may be no more than that which is necessary and that only military objectives are lawful targets. Civilian infrastructure and people are unlawful targets unless they serve military purposes or are participating in hostilities as combatants, compromising their civilian status. Accordingly, risks to civilians must be assessed before deciding whether or how to attack a target or return fire.
In relation to the use of human shields, passive victims of Hamas military policy who find themselves in the vicinity of its facilities are to be protected as much as possible. In targeting a military objective, their casualties should not be disproportionate to the military advantage to be gained.
For example, a decision on whether or how to return mortar fire needs to take into account the obligation to minimise potential harm to civilians. On Wednesday last week, 15 Gazans were killed in an exchange of mortar fire initiated by Hamas from the site of a UN shelter. Questions arise as to whether IDF fire was responsible for the deaths and whether the IDF return fire was necessary, whether it was sufficiently informed by field intelligence, whether higher precision alternatives were available and whether target-specific legal advice and real-time monitoring was possible.
In contrast to passive victims, active human shields who voluntarily put their bodies in the service of Hamas’s war effort intend to block fire in combat and they have an individual combat function that compromises their civilian status. Although they themselves are not legitimate targets, the facilities or people they seek to shield are. Their direct participation in hostilities undermines the legal obligation to protect them. They should be forewarned, but their deaths or injuries are legally caused.
Unlike any other before, this war leverages mass media against a stronger opponent that is accountable outside the battlefield. Members of the IDF will be charged for any breaches of international humanitarian law committed in the course of this war. Everyone is watching. Yet there are no pictures of Hamas fighters. ‘‘Disloyal’’ media reporting is unsafe, making it difficult to get accurate and unbiased coverage of Hamas activities. There is little likelihood that its leaders, officers and combatants will be held legally accountable. There haven’t even been elections in almost a decade.
The Hamas conduct needs to be understood in the context of the current carnage in other religious wars in the Middle East. A mass suicide bomb strategy is made possible by jihadist fervour, righteous absolutism and the promise of paradise in its Islamist conception. The West European-derived legal concepts of proportionality, distinction, civilian protection and war crimes are as relevant as disc brakes to a camel.
In this asymmetrical legal context, Israel must exercise ingenuity to use necessary effective force that is discriminate and proportionate, even against jihadists willing to blow up Gaza’s last human shield.
Professor Gregory Rose is a specialist in international law at the University of Wollongong.
