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Will captured Hamas manual on using human shields help Israel block war crimes trials?

Hamas members are seen close up during a press conference in the Gaza Strip last week. Photo: REUTERS

Hamas members are seen close up during a press conference in the Gaza Strip last week. Photo: REUTERS

According to the IDF the posted pages of the manual focus on urban warfare, and discuss the benefits to Hamas when its own civilians’ homes are destroyed.

The Tuesday meeting of Palestinian Authority Foreign Minister Riad al-Malki with the International Criminal Court Prosecutor’s Office is likely far less significant than it looks.

First, the Palestinians threaten over and over again to file complaints against Israelis in the ICC, but have consistently failed to pull the trigger.

Also, though “Palestine” can probably overcome the statehood obstacles which blocked the Palestinians from filing war crimes complaints against Israelis after the 2008-9 Gaza War there are myriad other obstacles which could block an investigation, let alone a conviction.

But in the unlikely worst case scenario where the PA somehow manages to overcome the many substantial obstacles, has the IDF just discovered a golden defense to war crimes allegations in a “captured” Hamas manual it posted Monday-Tuesday?

According to the IDF (and partially confirmed in a CNN report), the posted pages of the manual focus on urban warfare, and discuss the benefits to Hamas when its own civilians’ homes are destroyed.

It has two salient points relating to the war crimes issue.

The IDF said that the manual: 1) reveals that Hamas knows or recognizes the IDF is committed to minimizing harm to civilians 2) explains how the civilian population can be used against IDF forces. Based on these two points, the IDF stated that Hamas’ callous and systematic use of the Gazan population as “human shields” was intentional and preplanned.

In a portion entitled “Limiting the Use of Weapons,” the IDF said the manual explains that: The soldiers and commanders (of the IDF) must limit their use of weapons and tactics that lead to the harm and unnecessary loss of people and [destruction of] civilian facilities. It is difficult for them to get the most use out of their firearms, especially of supporting fire [e.g. artillery].

The IDF concluded that Hamas knows the IDF will limit its use of greater firepower in support of infantry weapons in order to avoid harming civilians.
The manual goes on to explain that the presence of civilians among pockets of resistance causes three major problems for IDF forces: (1) Problems with opening fire (2) Problems in controlling the civilian population during operations and afterward (3) Assurance of supplying medical care to civilians who need it Lastly, the manual discusses the benefits for Hamas when civilian homes are destroyed: The destruction of civilian homes: This increases the hatred of the citizens towards the attackers [the IDF] and increases their gathering [support] around the city defenders (resistance forces[i.e. Hamas]).

The IDF concluded that this proves that Hamas actually desires the destruction of homes and civilian infrastructure, knowing it will increase hatred for the IDF and support their fighters.

Back to the worst case scenario where Israelis find themselves defending specific targeting decisions from war crimes allegations.

From one perspective, the manual, while a potential coup from a public relation standpoint, is not a concrete legal defense.

Just as Israel often points out that its soldiers cannot be accused of war crimes on the basis of a general civilian casualty total, but only on the specific circumstances of the targeting incident in question, any defense should be specific to a particular incident – and the manual is not.

However, the record of international war crimes tribunals is that specific cases are not decided in a vacuum.

Often a general factual picture is established about whether war crimes were or were not systematically taking place, which correctly or not, influences how the judges interpret borderline evidence in specific cases.

The manual does not allege a single specific incident where Hamas used human shields in a way that justified a specific IDF attack which otherwise would have been illegal.

But the manual, which the IDF said belonged to Hamas’ Shejaia Brigade, does support the IDF’s general narrative of Hamas using human shields (in a way which at least could convert certain civilian areas into military targets) throughout Shejaia – where the IDF has been broadly accused of a massacre.

It shows that Hamas is educating its fighters about the benefits of fighting among its own civilians and that Hamas tells its fighters to view destruction of its own civilian homes as increasing its support. The manual also shows that Hamas itself “knows” or believes that the IDF is trying to follow the rules of armed conflict to such an extent, such that it inculcates in its fighters tactically and concretely how to exploit this to gain certain military advantages.

To the extent Hamas would be the complainant before the ICC, the manual could be a powerful part of a general defense supporting Israel’s overall claim to following the laws of armed conflict, when a judge has to decide to believe Israel about whether Shejaia civilians were killed by mistake or deliberately.

Via The Jerusalem Post

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Posted by on August 5, 2014. Filed under Breaking News,Israeli News,Slider. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.