If precedent – such as the Goldstone Commission following the 2009 war between Hamas and Israel – be the guide, the inquiry will likely marginalize, if not sanitize, war crimes and crimes against humanity committed by Hamas. Indeed, the impunity enjoyed by Hamas in international forums has only encouraged it to continue flagrant violations of international humanitarian and criminal law.
For example, Hamas deliberately – and indiscriminately – bombards Israeli cities, towns, and villages with rockets and missiles. As even the Palestinian representative to the UN put it, “each and every” rocket launched by Hamas at Israeli civilians is “a crime against humanity.” Israelis have largely been secured by the country’s Iron Dome defense system from what would otherwise be tragic death and destruction; however, these assaults are nevertheless intended to terrorize an entire civilian population, and have significant psychological consequences.
Moreover, Hamas uses Palestinian civilians as human shields, and even forces them to act as such. Hamas boasts about such tactics, which are employed in an effort to immunize themselves from Israeli response, or worse, to deliberately incur civilian casualties.
Hamas also fires rockets, stores weapons, and embeds combatants in Gaza’s civilian infrastructure – including building an underground city of terror tunnels from which to launch assaults on Israeli civilians. The consequence is that Israeli counterstrikes tragically may entail large numbers of casualties. As UN Secretary General Ban Ki Moon – who is not known for pro-Israel bias – recently put it: “We condemn the use of civilian sites – schools, hospitals, and other civilian facilities – for military purposes.”
There is as well the crime of perfidy, wherein Hamas misappropriates and misrepresents international humanitarian symbols and religious institutions for terrorist purposes, such as storing weapons in UN facilities, transporting combatants in an ambulance, or firing rockets from mosques, schools, hospitals, and culturally protected sites.
As well, Hamas recruits children for combatant or terrorist purposes, such as suicide bombings, while indoctrinating children to hate and kill Jews. Such actions are a cruel and dehumanizing violation of recognized children’s rights. In addition, the threatened abduction and illegal hostage-taking of Israeli children – facilitated by the terror tunnels – in is standing violation of the Convention on the Rights of the Child.
Finally, Hamas engages in state-sanctioned incitement to hate and genocide by calling publically for the destruction of Israel and the killing of Jews wherever they may be – calls anchored in the anti-Semitic Hamas Charter, which blames Jews for all the evils of humankind.
Taken together, the systematic and widespread character of the above actions constitutes crimes against humanity, the ultimate in international criminality. These acts must be prosecuted and punished to the fullest extent of the law.
None of this is intended to suggest that Israel is somehow above the law or should not be held responsible for any violations of human rights or international humanitarian norms. The problem is that Israel is systematically denied equality before the law in the international arena. Israel must respect human rights, but the rights of Israel deserve equal respect. Simply put, human rights standards should be applied to Israel, but must be equally applied to all others, without the exculpatory immunity that major human rights violators – such as Hamas – currently enjoy.
Unacceptably, the recent UN resolution ignores the fundamental distinction between a terrorist organization – indeed a terrorist government, like Hamas – committed to maximizing civilian casualties, both Israeli and Palestinian, and a democratic government that seeks to minimize Palestinian casualties while taking necessary measures to defend its own citizens in accordance with international law.
Regrettably, this prejudicial and pernicious UN decision – let alone the prospective one-sided commission of inquiry – will only encourage Hamas criminality, with Israeli and Palestinian civilians themselves as the tragic victims.
Irwin Cotler is a Member of the Canadian Parliament, and the former Minister of Justice and Attorney General of Canada. He is emeritus professor of law at McGill University in Montreal, has written extensively on war crimes law, and initiated the first prosecution under Canada’s War Crimes and Crimes Against Humanity Act.