Hold Hamas Accountable for Human-Shields Use During the May 2021 Gaza War

Orde Kittrie

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Introduction

During the May 2021 Gaza conflict, Hamas relied heavily on the use of civilians as human shields. Every time Hamas used civilians to shield its weapons or fighters from lawful attack, the terror group committed a war crime in violation of the Fourth Geneva Convention and customary international law.1 Despite strong evidence that Hamas and Hezbollah have used human shields extensively in prior conflicts,2 former President Donald Trump never imposed the sanctions required by U.S. law in such circumstances. President Joe Biden should seize the opportunity to do so, both to support America’s Israeli allies and to bolster U.S. and other NATO troops, who similarly face rampant terrorist use of civilians as human shields.

The following section of this memo discusses the Sanctioning the Use of Civilians as Defenseless Shields Act (“Shields Act”), which requires the president to impose sanctions on persons involved in the use of human shields by Hamas or Hezbollah.3 The memo then provides numerous specific examples of human-shields use by Hamas during the May 2021 Gaza conflict. Subsequently, the memo describes how the extensive use of human shields against NATO has hindered the alliance, leading NATO’s Supreme Allied Commander Europe to urge all member states to impose sanctions and take other measures to counter the use of human shields.

Finally, the memo explains how responding with sanctions to Hamas’ use of human shields would concretely advance several U.S. national security and foreign policy objectives. These objectives include protecting U.S. troops against terrorist use of human shields; helping Israel defend itself against International Criminal Court and UN actions that unfairly target the Jewish state; further isolating particular terrorist leaders; and undermining Hamas while supporting other Palestinians.

The Shields Act Requires Sanctions When Hamas Uses Human Shields

The Shields Act was enacted on December 21, 2018, following its unanimous passage by Congress. The act required the president, within one year (that is, by December 21, 2019) and annually thereafter, to submit to Congress a list of, and to impose sanctions on, all foreign persons involved in human-shields use by Hamas or Hezbollah, as well as all foreign persons, agencies, or instrumentalities that knowingly and materially support or direct the use of human shields by those groups.

A presidential memorandum dated May 24, 2019, delegated “to the Secretary of the Treasury, in consultation with the Secretary of State,” the principal functions and authorities vested in the president by the Shields Act.4 The Biden administration should start implementing the Shields Act, including by imposing sanctions on Yahya Sinwar, the top Hamas political leader in Gaza, and other terrorist officials for whom there is compelling evidence of their responsibility for the use of human shields.5

Examples of Human-Shields Use by Hamas in Recent Gaza Conflict

During the May 2021 Gaza conflict, several outside observers reported publicly on Hamas’ use of civilians as human shields for its weapons and fighters. The Associated Press found that “Palestinian fighters are clearly operating in built-up residential areas and have positioned tunnels, rocket launchers and command and control infrastructure in close proximity to schools, mosques and homes.”6 Each rocket launched at Israeli civilians from such sites entails two separate war crimes, violating the law of armed conflict’s prohibition on targeting civilians as well as the prohibition on using civilians as human shields.7 The Office of the United Nations Special Commissioner for the Middle East Peace Process likewise said: “Hamas & other militants’ indiscriminate launching of rockets & mortars from highly populated civilian neighborhoods into civilian population centers in Israel violates [the law of armed conflict] and must cease immediately.”8

The Israel Defense Forces (IDF) catalogued numerous specific examples of human-shields use by Hamas, which included the following:

military intelligence headquarters installed next to a kindergarten;

weapons depots placed in various houses and apartment buildings;

civilian apartment buildings used for military planning and operations; and

weapons factories situated in the heart of densely populated civilian areas.9

The IDF released photographs of several additional examples of human-shields use by Hamas, including:

14 rocket launchpads in a Gaza schoolyard;10

a Hamas rocket launcher located next to a civilian building;11

Hamas rockets launched from near a school;12

Hamas military tunnel openings located near a hospital and a school;13

a Hamas military tunnel entrance located near a kindergarten and a mosque;14

a Hamas military tunnel entrance located underneath a Gaza beachside hotel;15 and

a Hamas military tunnel under a school.16

In addition, an Israeli television channel published photos of a tunnel dug by Hamas underneath a Gaza school run by the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).17

Hamas reportedly considers its military tunnels to be “strategic weapons” and uses them as ammunition depots, to hide rocket launchpads, for command and control of terrorist operations, and to abduct Israeli soldiers.18 UNRWA, which is not known for its support of Israel, stated on June 4 regarding Hamas’ locating military tunnels under UNRWA schools: “UNRWA condemns the existence and potential use by Palestinian armed groups of such tunnels underneath its schools in the strongest possible terms. It is unacceptable that students and staff be placed at risk in such a way.”19

Beyond Gaza: Human-Shields Use as a Concern for NATO

Imposing Shields Act sanctions on Hamas would be an important step toward countering the extensive use of human shields against the United States and its allies.20 The Islamic State,21 the Taliban,22 and Libyan,23 Serbian,24 and Iraqi25 forces have all used human shields against U.S. and/or NATO forces.

In 2019, NATO’s Supreme Allied Commander Europe, General Curtis Scaparrotti, said, “[I]t is essential that further measures be taken at the national level to maximize enforcement of the international legal prohibition of the use of human shields.” Scaparrotti specifically urged “imposition of sanctions” and “spotlighting of violations.” Considering the frequency and effectiveness of human-shields use against NATO forces, Scaparrotti said that such national measures “would decidedly become a major and substantial contribution” to NATO operations.26

Scaparrotti said he considers human-shields use “an important obstacle for the effectiveness and success of current and future NATO operations and missions.” He explained that NATO’s adversaries, notably in the Middle East, “have not hesitated to use the prohibited practice of human shields,” as doing so forces NATO troops “to choose between not taking action against legitimate military targets or seeing their actions, and the overall mission, delegitimized.”27

U.S. National Security and Foreign Policy Reasons to Implement Shields Act

PROTECTING U.S. TROOPS AGAINST TERRORIST USE OF HUMAN SHIELDS

Implementing the Shields Act would fulfill NATO’s request that member states take steps, including imposing sanctions, to counter the widespread use of human shields.28 Terrorists use human shields, often very effectively, to cause Western militaries to self-impose restraints beyond those required by the law of armed conflict. These restraints put at risk the lives of Western troops and render them less effective in defending their citizens.29

Terrorists who employ human shields also seek to delegitimize lawful military operations, erode the will of Western militaries to fight, and spur anger at Western leaders by generating civilian casualties for which the Western militaries are blamed. In practice, terrorists engage in the actual war crime of using human shields in order to create a situation in which U.S., Israeli, and other Western militaries can more readily be falsely accused of engaging in war crimes such as the willful killing of civilians.

Imposing sanctions pursuant to the Shields Act would help educate the Western media and public about human-shields use and underscore that it is a war crime. By contrast, a failure to spotlight, condemn, and sanction Hamas’ and Hezbollah’s use of human shields would send a message to the Islamic State, the Taliban, and other such groups that the benefits of using human shields against Western militaries continue to outweigh the costs. The men and women of the U.S. Armed Forces deserve better than to have their lives and reputations continually put at risk by this terrorist tactic.

COUNTERING UNFAIR ACTIONS AGAINST ISRAEL

Imposing Shields Act sanctions on Hamas leaders would also help Israel defend itself against one-sided, politically motivated investigations of its military operations by the International Criminal Court (ICC) and the UN Human Rights Council (UNHRC).30 These investigations illustrate the success of Hamas’ strategy of engaging in the actual war crime of using human shields so that Israel can more easily be falsely accused, at the ICC and UNHRC and in the media, of committing war crimes such as willfully killing civilians. The United States can – and should – help set the record straight.

Secretary of State Antony Blinken has said that the Biden administration “will continue to uphold our strong commitment to Israel and its security, including by opposing actions that seek to target Israel unfairly.” Blinken has specifically cited the ICC investigation of Israel, which he said the Biden administration “firmly opposes,” as an example of such an action.31 The ICC investigation of Israel has also been opposed by 69 senators and 262 representatives.32

Implementing the Shields Act would also help counter a one-sided “commission of inquiry” into the Gaza conflict, established by a UNHRC resolution passed on May 27. The resolution strongly implies that only Israel is to blame for the Gaza conflict, not even mentioning Hamas, let alone its rocket attacks on Israeli civilians and use of Gazan civilians as human shields.33 The State Department slammed the resolution as “deeply unfortunate.”34

Much as replenishing Iron Dome helps Israel physically protect itself from Hamas rockets, implementing the Shields Act will help Israel protect itself from the incessant efforts at the ICC, UNHRC, and elsewhere to impinge on its legitimate right of self-defense. As Blinken declared during the May conflict, “Israel has the right to defend itself,” and “there is no equivalence between a terrorist group indiscriminately firing rockets at civilians and a country defending its people from those attacks.”35 Blinken stated on May 25 that “when we have something like what the Israelis experienced in the last couple of weeks, attacks from a terrorist group indiscriminately targeting civilians, we want to make sure that Israel has the means to deal with that.”36

ISOLATING INDIVIDUAL HAMAS AND HEZBOLLAH LEADERS

Imposing sanctions pursuant to the Shields Act would also help isolate Hamas and Hezbollah leaders by appropriately labeling them as war criminals. Shields Act designations of Hamas and Hezbollah leaders such as Sinwar will have particular resonance in European and other allied countries that, unlike the United States, currently proscribe those organizations’ military wings but not their purportedly civilian leaders such as Sinwar (who are often just as clearly responsible for using human shields).37

Naming Sinwar and other leaders of Hamas’ “political” wing for human-shields violations would help counter the flawed view that Hamas leaders are separate from the group’s military wing, are less involved in objectionable activity, and should not be sanctioned. Compared to the existing U.S. labeling of these leaders as terrorists, a well-founded designation as a war criminal will carry more stigma in countries where many still subscribe to the unfortunate old adage that “one man’s terrorist is another man’s freedom fighter.”

For example, while the State Department has designated Sinwar as a Specially Designated Global Terrorist since 2015,38 he is not on the EU terrorist list (which includes Hamas)39 or the UK terrorist list (which excludes the non-military wing of Hamas).40 Prior to assuming Hamas’ top civilian position in Gaza, Sinwar was a military leader who was arrested by Israel for his role in murdering several alleged Palestinian collaborators with Israel and was sentenced for masterminding the abduction and murder of two Israeli soldiers.41 He is reportedly a radical hardliner particularly close to Iran.42

Sinwar made genocidal threats against Israel as recently as May 26, declaring that Hamas’ doctrine calls for “the eradication of Israel through armed jihad.” In the same speech, Sinwar expressed his “complete gratitude” to “the Islamic Republic of Iran, which has … provided us with money, weapons, and expertise” and “deserve[s] huge credit.”43

UNDERMINING HAMAS AND HEZBOLLAH

Implementing the Shields Act would also support U.S. efforts to undermine Hamas and Hezbollah and thereby strengthen their comparatively moderate rivals for power in Gaza and Lebanon. Following the May conflict, Blinken emphasized that while he wants to “rebuild our relationship with the Palestinian people and the Palestinian Authority,” he also wants to “ensure that Hamas does not benefit” from U.S. assistance.44 Blinken expressed hope that such assistance would “undermine” the terror group so that its “foothold in Gaza will slip.”45 Holding Hamas accountable for its use of human shields would help achieve that objective.

Humanitarian assistance to the Palestinian Authority and other Hamas rivals will not alone be sufficient to undermine the terror group. It is also essential to counter Hamas’ false narrative about the May 2021 Gaza conflict, in which the group portrays itself as protecting Gazans from Israeli war crimes. To that end, Biden should fulfil his statutory obligation and impose Shields Act sanctions, thereby demonstrating that Hamas terrorists are the real war criminals, including because they deliberately endangered Gaza civilians by using them as human shields.