Article by Prof. Tali Gal, Professor of Law and Criminology, Chair in Child and Youth Rights, The Minerva Center for Human Rights, Faculty of Law at the Hebrew University of Jerusalem.
Introduction
International humanitarian law and human rights discourse linked with the Gaza-Israel war is generally focused on the obligations of Israel towards the citizens of Gaza, and, to some extent, on the violations committed by Hamas (and Hizballah) on the citizens of Israel. So far, very little attention has been given to the obligations of Hamas, as a non-State armed group, towards its own polity – the citizens of Gaza. This short text focuses on Hamas’ obligations toward the most vulnerable population under its control, the Gazan children.
While traditionally only States were considered bound by international human rights obligations, today there is a wide acknowledgement that non-State armed groups who are de facto in control of the local population are also obliged to protect the population under their control and refrain from hurting them. This is particularly true when the armed groups have been in control for an extended period, because lacking any other formal authority to protect them, the civilians depend on the armed groups to follow basic international and humanitarian law (Henckaerts et al., 2005). Children and youth under the age of 18 are particularly protected under widely accepted norms stipulated in the UN Convention on the Rights of the Child and other related documents.
1. The duty of armed groups to protect civilians under their control
Rule 22 of the customary international humanitarian law states that “The parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks”. This means that armed groups that are de facto in control of the population must do everything they can to minimize damages inflicted by the conflict on their population. Failing to do so constitutes a violation of international humanitarian law.
2. The prohibition against locating military installations in civilian areas
Non-State armed groups must shield civilians under their control from violence by taking all feasible precautions to protect them from the effects of attacks by other parties, including by locating their military installations away from civilian areas (Henckaerts et al., 2005). Specifically, Rule 23 states that “Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas”. This rule is an application of the principle of distinction and the prohibition of human shields. The duty of armed groups to avoid locating military objectives within or near densely populated areas is set forth in Article 58(b) of Additional Protocol I.
That is, by conducting their military activities and locating their martial supplies in hospitals, private apartments, schools, and other social institutions, Hamas militants expose Gazan children and other civilians to extreme dangers and violate their obligations toward them.
3. The prohibition against recruiting children and using them in hostilities
The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) refers specifically to non-State armed groups in its prohibition of involving children in armed conflicts.
Article 4 in the Optional Protocol states the following:
“Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.”
The general restrictions on such non-State armed groups are to refrain from recruiting children and youth; from involving them in aggression; and from impeding the provision of relief supplies. More generally, armed groups that are in control of the population have to actively protect children from violence or exploitation by other actors (Casalin, 2021).
In addition, Article 3 of the 1999 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour states that:
For the purposes of this Convention, the term "the worst forms of child labour" comprises:
(a) all forms of slavery or practices similar to slavery… including forced or compulsory recruitment of children for use in armed conflict;
(b) …
(c) the use, procuring or offering of a child for illicit activities…
Finally, the Rome Statute, establishing the authority of the International Criminal Court, stipulates that “…conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” – is a war crime.
4. The prohibition against impeding the provision of relief supplies
Article 8 of the Rome Statute defines war crimes as including “…willfully impeding relief supplies as provided for under the Geneva Conventions”. This applies to non-State armed groups, especially when the denial of supplies amounts to starvation (Vanhullebusch, 2020). That is, the denial of citizens access to relief supplies by international aid organizations is a war crime that Hamas is conducting against its citizens.
Conclusions
International law suggests that Hamas is obliged to take all possible measures to protect Gazan children from the risks of the armed conflict, and, as part of this obligation, to refrain from placing military equipment and conducting military activities from within buildings and areas of dense population. Fighting from within hospitals, schools, and private apartments then is a direct violation of these obligations. Hamas is also obliged to refrain from involving children in the fighting, aggressions and hostilities, and using them as human shields. Finally, Hamas violates international law when impeding the provision of relief supplies to the population, putting children in particular risk due to their enhanced vulnerability.
Bibliography
Casalin, D. (2021). Legal Obligations of Non-state Armed Groups and Sustainable Development Goal 16. In: Leal Filho, W., Azul, A.M., Brandli, L., Lange Salvia, A., Özuyar, P.G., Wall, T. (eds), Peace, Justice and Strong Institutions. Encyclopedia of the UN Sustainable Development Goals. Springer, Cham.
https://doi.org/10.1007/978-3-319-71066-2_85-1
Henckaerts J-M, Doswald-Beck L, Alvermann C, Dörmann K, and Rolle B. (2005). Precautions against the Effects of Attacks (Rules 22–24). In: International Committee of the Red Cross, Customary International Humanitarian Law. Cambridge University Press, 68-76.
Vanhullebusch, M. (2020). Do Non-State Armed Groups Have a Legal Right to Consent to Offers of International Humanitarian Relief? Journal of Conflict and Security Law 25(2), 317–341,
https://doi.org/10.1093/jcsl/kraa007