By Darius Lee
In 2014, Hamas and other Palestinian armed groups violated the international law prohibition against spreading terror among the civilian population by firing rockets and mortars into Israeli territory. Today, Hamas and other Palestinian armed groups continue to fire rockets and mortars into Israel, including another round of attacks just last month in November 2020, prompting a response from Israel. These are instances of ongoing acts seeking to spread terror among civilians living in Israel, and amount to violations of international humanitarian law and war crimes.
In the summer of 2014, Israel engaged in intensive hostilities against Hamas and other Palestinian armed groups in the Gaza Strip (known as ‘Operation Protective Edge’ or the ‘2014 Gaza Conflict’). Located towards the southwest of Israel, and bordering Israel and Egypt, the Gaza Strip is a small densely populated area of 360km2 (almost 140 square miles) and had approximately 1.8 million residents at around the time of the 2014 Gaza Conflict.
Operation Protective Edge proceeded in three phases: an aerial campaign (7 to 17 July), ground operation (17 July to 5 August), and redeployment and aerial strikes (5 to 26 August). It ended in a mutual ceasefire between Israel and Hamas.
As a result of the hostilities from 7 July to 26 August 2014, there were more than 2,000 deaths and 11,000 injuries among Palestinians (although classifications of militants and civilians have been disputed). Six civilians (five Israelis and one Thai national) and 67 Israel Defense Forces (IDF) soldiers were killed, and more than a thousand Israelis were injured. In addition, both sides suffered extensive losses including property damage, psychological harm and displacement.
In response, both the Commission of Inquiry (COI) appointed by the Human Rights Council and the State of Israel have respectively published reports addressing concerns over violations of human rights and international humanitarian law (IHL) arising out of the conflict. The Prosecutor of the International Criminal Court (ICC) has also submitted to the ICC that “there is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza”.
No Settled Definition of Terrorism
In 1991, Israel submitted a derogation from the International Covenant on Civil and Political Rights (ICCPR). The government derogated from its obligation to respect persons’ rights to liberty and security under Article 9 of the ICCPR so that it could exercise powers of detention if necessary for security purposes. In the derogation, the Israeli government stated: “Since its establishment, the State of Israel has been the victim of continuous threats and attacks on its very existence as well as on the life and property of its citizens. These have taken the form of threats of war, of actual armed attacks, and campaigns of terrorism resulting in the murder of and injury to human beings.”
Even though the term “terrorism” has been widely used by governments all across the world, there is no settled definition of terrorism under international law. Instead, the international community has adopted a “twin-track approach”, dealing with particular manifestations of terrorist activity and generally condemning the phenomenon. To-date, there are nineteen universal legal instruments, including amendments and protocols, concerning terrorism.
Since 1996, there have been efforts to prepare a Draft Comprehensive Convention Against International Terrorism. However, more than two decades later, negotiations over the convention have not concluded, owing to a lack of agreement over the definition of terrorism.
Neither the United Nations (UN) nor the Security Council have laid down legal definitions of “terrorism”. Terrorism was also not included as one of the international crimes under the Rome Statute, the founding treaty of the ICC, due to the lack of consensus over its definition.
Prohibition Against Spreading Terror Among the Civilian Population
By contrast, there is a specific prohibition against spreading terror among the civilian population under IHL, as well as an associated war crime that has been recognized by international criminal tribunals.
These prohibitions are contained in Additional Protocols I and II of 1977 (API and APII respectively) to the 1949 Geneva Conventions. Both Article 51(2) of API and Article 13(2) of APII are similarly-worded and provide: “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Article 4(2)(d) of APII provides that “acts of terrorism” shall remain prohibited “at any time and in any place whatsoever”. Article 33 of the Fourth Geneva Convention prohibits collective penalties and all measures of intimidation or terrorism.
Both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL) have affirmed that the prohibition against terrorizing civilians reflected customary international law.
As these tribunals have clarified, an individual commits the war crime of spreading terror among the civilian population if the person does the following:
- Carries out acts or threats of violence or attacks against the civilian population;
- The offender willfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence; and
- The above offence was committed with the primary purpose of spreading terror among the civilian population.
Based on the available evidence to-date, there is reason to believe that Hamas and other Palestinian armed groups violated the prohibition against spreading terror among the civilian population by firing rockets and mortars from the Gaza Strip into Israel during the 2014 Gaza Conflict. However, the available data is presently insufficient to reach the same conclusion with regard to Israel.
Conduct of Hamas and Other Palestinian Armed Groups
Hamas has been the de facto governmental authority of the Gaza Strip since 2007, with a structured and organized military wing, the Izz al-Din al-Qassam Brigades. Additionally, other Palestinian armed groups, such as the Palestinian Islamic Jihad and Al-Aqsa Martyrs Brigades, operate in Gaza and cooperate with Hamas especially in times of high intensity operations such as in 2014.
In the lead up to and during the 2014 Gaza Conflict, Hamas and other Palestinian armed groups fired rockets and mortars from the Gaza Strip into Israel. Israel places the figure at more than 4,500 rockets and mortars fired during the 51 days of the conflict, with approximately 90% directed at Israel’s civilian population. UN figures are higher, at 4,881 rockets and 1,753 mortars fired between 8 July and 26 August. The arsenals of these armed groups included rockets up to the range of 160km (approximately 100 miles), capable of reaching central and northern Israel, including the major cities of Jerusalem, Tel Aviv, and Haifa.
Even though Israel’s Iron Dome counter-missile defense system intercepted a majority of the projectiles, six civilians were killed and approximately 1,600 civilians were injured. There were also other grave consequences against the civilian population. Educational and other activities near the Gaza border had to cease or relocate, elderly and the disabled were confined to protective shelters, approximately 10,000 civilians in the areas near the Gaza border evacuated their homes, and it was postulated that many suffered or would suffer short- and long-term psychological damage.
As a result, both Israel and the COI came to the conclusion that Hamas and other Palestinian armed groups violated the prohibition against spreading terror among the civilian population, a conclusion that is eminently justified on the available data.
On the other hand, the same cannot be said about other actions of these armed groups. For example, earlier IDF statements and media reports had suggested that the cross-border assault tunnels from Gaza into Israel were “terror tunnels”. However, there is insufficient evidence to conclusively determine the intent of Palestinian armed groups with regard to the construction and use of these tunnels, whether they were intended to attack civilians, or to attack IDF troops.
Similarly, even though Hamas and other Palestinian armed groups used civilians as human shields during the conflict, there is a lack of evidence to show whether or not spreading terror among the civilian population was their primary intent. This is because the law sets a high threshold in order to show a violation of the prohibition against spreading terror among civilians.
Conduct of Israel
The 2014 Gaza Conflict took place in a complex, crowded, and constantly changing urban battlefield, involving “high-intensity combat”. Israel’s ground operation was characterized by close-quarter combat and intensive urban warfare.
Yet IHL is clear that one side in a conflict cannot claim that its obligations are diminished or non-existent just because the other side does not respect all of its obligations. Thus, even though the Palestinian armed groups had used human shields, Israel is still bound to comply with its obligations to avoid harming the civilian population.
Richard Kemp, former Colonel in the British Infantry, noted in his submission to the COI that “the IDF took exceptional measures to adhere to the Laws of Armed Conflict and to minimise civilian casualties in Gaza”. He considered “Israel to be world leaders in actions to minimise civilian casualties”.
Israel carried out more than 6,000 air strikes throughout Operation Protective Edge. According to Israel, the strikes were directed at military objects. In many instances, Israel issued warnings to civilians before the strikes, including leaflets, phone calls, text messages, radio and television broadcasts and “roof-knocks”. These roof-knocks involve first firing low-explosive projectiles in order to warn civilians of imminent danger, before firing high-explosive projectiles. These suggest that Israel did not have the intention to terrorize civilians.
 LL.M. in International Law and Human Rights, Hebrew University of Jerusalem; LL.B. (Hons.), National University of Singapore.
This post draws from the analysis in a longer article by the author, titled “The 2014 Gaza Conflict and the Prohibition Against Spreading Terror Among the Civilian Population”, and published in the New Zealand Journal of Public and International Law. The article is accessible here: https://www.wgtn.ac.nz/__data/assets/pdf_file/0004/1906708/Lee.pdf