AGPI Issues Letter to The Red Cross

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8 November 2023

The International Criminal Court 

The Hague  

Oude Waalsdorperweg 10 2597 AK Den Haag, 

Netherlands

ATT: Office of the Prosecutor,  International Criminal Court Prosecutor Karim A.A. Khan KC

On October 30th, 2023, you issued a press release stating the following: “As I stated five days after the attacks that took place on the 7th of October, we have jurisdiction over crimes committed by the nationals of state parties. And therefore, that jurisdiction continues over any Rome Statute crimes committed by Palestinian nationals…”.  

As you are aware, in 1949, the fourth Geneva Convention was revised to protect non-combatant civilians, encouraging military actors to refrain from targeting civilian populations. In 1977, the Convention clarified that the use of human shields was forbidden by the rules of war. Article 12-4 states, for example, states “Under no circumstances shall medical units be used in an attempt to shield military objectives from attack.”

Similarly, Article 8-2-B of the 1998 International Criminal Court (ICC) standards specifically defines as an international war crime, “Utilizing the presence of a civilian or other protected person to render certain points, areas, or military forces immune from military operations…”.

Given these statutes, The Abraham Global Peace Initiative (AGPI), a prominent Canadian human rights organization, is calling upon the ICC to immediately issue arrest warrants for the following Islamic Resistance Movement (Hamas) leaders:

Ismail Haniyeh, Chairman of the Political Bureau

Khaled Mashal, former Chairman

Saleh al-Arouri, Deputy Chairman

Abu Marzuk, Senior Leader

Yahya Sinwar, Leader in the Gaza Strip

Mohammed Deif, Military Commander

It is well-documented that Hamas places rockets in civilian population areas, including playgrounds, public swimming pools, near hospitals, and schools. The use of civilian populations as human shields is strictly forbidden under the international conventions.

Aside from firing rockets from civilian areas, Hamas is known to locate its military and security infrastructures and the homes of its leaders in proximity to civilian areas. Similarly, Hamas engages in military activity specifically from residential and commercial areas to maximize civilian casualties.

In the current conflict between Hamas and Israel, Hamas is restricting the flow of Gaza’s civilian population seeking to reach the safety zones established in the southern part of the strip. In fact, Hamas has been sending the population back to the northern part of the strip where the IDF is operating, evidently to use them as human shields.

While the IDF was working to open a humanitarian corridor from the North to South for Gaza’s civilians to pass through safely, Hamas was firing mortars and missiles at the IDF.

Moreover, Hamas has been stealing and hoarding fuel, food, medicines, and supplies meant for Gaza’s civilian population. This is an effort both to bolster its own resources and to create a humanitarian crisis by literally starving out its own civilian population. Israeli drone footage has recorded vast fuel and supply depots held by Hamas.

With respect to Hamas and subordinate terrorist groups operating in the Gaza Strip (e.g., Islamic Jihad, and others), we contend that the indiscriminate firing of rockets at civilian populations in Israel constitutes a war crime. The laws of war dictate against indiscriminate attacks that by launching thousands of unguided rockets towards Israeli cities, clearly manifest the specific intent of killing, maiming, and terrorizing civilian populations.

In comparison, Israel has made every effort to protect the lives of civilians. Since October 7th, the IDF has made more than 20,000 phone calls, dropped 1.5 million leaflets, sent 4.4 million SMS messages warning civilians and urging them to move temporarily to safety zones.

Under the Geneva Convention, Israel has the legal right, and in certain circumstances a duty, to perform an evacuation for the safety of civilians. The ICRC Commentaries to the Geneva Convention on Protection of Civilians states: “If therefore an area is in danger as a result of military operations or is liable to be subjected to intense bombing, the Occupying Power has the right and, subject to the provisions of Article 5, the duty of evacuating it partially or wholly, by placing the inhabitants in places of refuge”. 

Thus, in protecting civilians, the IDF adheres to the fundamental objectives of Laws of Armed Conflict (LOAC).  It distinguishes between the civilian population and combatants and between civilian population and combatants and between military objectives – to which it directs its energy.  In doing so, in recent days, it has cleared a path for civilians to flee to safe zones, away from Hamas.

Conversely, Hamas has made every effort to restrict the movement of its civilian population to utilize them as human shields to support their terrorist activity.  Hamas does the exact opposite of the IDF’s engagement in rules of war in accordance with LOAC.

On October 30th, you issued a statement expressing, “Israel has clear obligations in relation to its war with Hamas: not just moral obligations, but legal obligations that it has to comply with the laws of armed conflict. It's there in the Rome Statute. It's there in black and white. It's there in the Geneva Conventions. It's there in black and white”. In our view, Israel is abiding by these conventions to the maximum extent possible. 

The International Criminal Court (ICC) treaty covering war crimes in international armed conflict prohibits the usage of “human shields”: “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations”. In other words, the use of civilians as involuntary human shields is unlawful. 

Under the LOAC the following transgressions by Hamas and subsidiary terror organizations operating in Gaza are war crimes and demand prosecution:

1. Taking of Hostages: Hamas has taken approximately 242 Israeli and foreign hostages. 

2. Torture and Rape: Video footage exists of Hamas torturing and raping Israeli civilians on October 7th, 2023. 

3. Directly Targeting Civilians: Evidence through training manuals found following the October 7th massacre indicating Hamas purposefully targeted civilians. It also continues to do so by indiscriminately firing rockets at Israeli civilian populations. 

The heinous and brutal murders of 1,400 unarmed Israeli and foreign civilians on October 7th constitute a war crime perpetrated by Hamas and its leadership. Instruction manuals have been recovered containing specific plans for the atrocities committed on civilians, indicating that Hamas leaders were intimately involved in directing and executing war crimes.

“Willfulness” to commit a crime against humanity is generally required. In Hamas’ case, willfulness includes “purposeful” attack specifically targeting civilians or “recklessness” (the term described under international conventions). 

Recklessness includes when an attacker consciously disregards a substantial and unjustifiable risk of harm to civilians.

The law of armed conflict (LOAC), also known as international humanitarian law, prohibits murder, cruel treatment, treatment, torture, outrages against personal dignity, and degrading or humiliating treatment of civilians (Common Article 3). On October 7, 2023, Hamas contravened these laws and therefore is subject to war crimes prosecution.

Hamas’s current holding of 242 Israelis as both hostages and human shields further proves the scope of the crimes committed for which Hamas’ leadership, commanders, and operators are responsible and must be charged with.

We call upon the ICC to immediately issue arrest warrants for the above-noted Hamas leaders and for its affiliated leaders and terror organizations, including The Islamic Jihad, The Al Aqsa Martyrs Brigade, and others.

Sincerely,

Avi Abraham Benlolo,   

Founder and CEO, The Abraham Global Peace Initiative 

4711 Yonge Street, 10th Floor Toronto, Ontario  M2N 7E4

CC: Antonio Guterres, UN Secretary General; Joe Biden, President of United States of America; Justin Trudeau, Prime Minister of Canada;