Determining the applicability oflaws of war to militant groups is a difficult question, as both theCouncil of Europe andInternational Committee of the Red Cross note thatinternational law traditionally treats war and terrorism as separate legal categories.[3][4] The Israeli, American, EU, UK, Japanese, and Canadian governments define Hamas as aterrorist group. However, many countries have disagreed with this characterization and have engaged with Hamas as a legitimate political entity.[5][6] While the term "international law" conventionally pertains to states, it has also been applied to insurgent and terrorist armed forces.[7] Accordingly, even insurgencies deemed lawful under international law that meet the criteria of "just cause" must also adhere to principles of "just means" as well.[8] Regarding Hamas and its combatants, even if they have a presumptive right to fight against what they term as an "illegaloccupation," they must still abide by legal rules of "discrimination", "proportionality", and "military necessity" under international law as conventional states do.[9][10]
According toHuman Rights Watch, "international humanitarian law, through the well-established doctrine of command responsibility" also applies "to political and other leaders insofar as they have 'effective responsibility and control' over the actors in question...thus making its leadership also criminally liable."[11]
War crimes
Targeting of civilians
According toAmnesty International, the "prohibition on targeting civilians is absolute in international law".[12]
Human Rights Watch has declared that the "scale and systematic nature" of Hamas' targeting of Israeli civilians "meet the definition of a crime against humanity", and that its particular use ofsuicide bombings taking "place in the context of violence that amounts to armed conflict...are also war crimes."[13]
According to Amnesty International, "the campaign of suicide bombings and deliberate attacks against Israeli civilians by Hamas and other armed groups constitutes crimes against humanity.[12]
Between September 1993 and the outbreak of theSecond Intifada in September 2000, "Palestinian groups carried out fourteen suicide bombing attacks against Israeli civilians, mostly in 1996-97, killing more than 120 and wounding over 550. Hamas said it committed most of the attacks."[14]
In the decade between 2000 and 2010, there were 146 suicide attacks committed by Palestinian militant groups against Israelis, resulting in 516 fatalities.[15] A 2007 Harvard University study of 135 Palestinian suicide attacks conducted between September 2000 and August 2005 determined Hamas responsible for 39.9% of such attacks during that period.[16]
Israel has accused Hamas of usinghuman shields in theGaza Strip, saying that Hamas has purposely attempted to shield itself from Israeli attacks by storing weapons in civilian infrastructure, launching rockets from residential areas, and telling residents to ignore Israeli warnings to flee. Israel has also accused Hamas of maintaining command and control bunkers andtunnel infrastructure below hospitals. Hamas has denied using hospitals to shield any command centre,[17] while it has previously made remarks expressing support for Palestinians refusing to flee areas Israel has targeted.[18]
The Israeli accusations have been supported byNATO,[19] and during theGaza warEuropean Union nations condemned Hamas for allegedly using hospitals as human shields, while theSecretary-General of the United Nations said "Hamas and other militants use civilians as human shields".[20][21] In 2023, HRW stated "Hamas and other Palestinian armed groups need to take all feasible precautions to protect civilians under their control from the effects of attacks and not use civilians as 'human shields.'"[22]
Between 2000 and 2021, over 17,000 rockets were fired into Israel from Gaza.[23] Hamas' use of indiscriminate rocket attacks on civilians has been widely condemned as a war crime.[24][25] Palestinian UN ObserverIbrahim Kraishi has equally decried the attacks, stating that "every rocket and mortar fired from Gaza toward Israel is a “crime against humanity.”[26]
During the Second Intifada, the majority[ambiguous] of Israeli casualties were civilian non-combatants, with Hamas conducting numerous[ambiguous] attacks deliberately targeting civilians.[27][28]
According to theJerusalem Post, during the2014 Gaza War, 20 civilians fromShuja'iyya were killed while protesting against Hamas.[29] A few days later, Hamas reportedly killed two Palestinians in Gaza and wounded ten after a scuffle broke out over food handouts.[30]
The IDF stated on 31 July that more than 280 Hamas rockets[31] malfunctioned and fell inside the Gaza strip, hitting sites including Al-Shifa Hospital and the Al-Shati refugee camp, killing at least 11 and wounding dozens.[32] Out of the Hamas denied that any of its rockets hit the Gaza Strip.,[31][33][34] but Palestinian sources[who?] said numerous rocket launches ended up falling in Gaza communities and that scores of people have been killed or injured. Israeli Military sources said the failed Hamas launches increased amid heavy Israeli air and artillery strikes throughout the Gaza Strip. They said the failed launches reflected poorly assembled rockets as well as the rush to load and fire projectiles before they were spotted by Israeli aircraft.[35] While the Al-Shifa Hospital incident is disputed, early news reports have suggested that the strike was from an Israeli drone missile.[32][36][37]UK based human rights group,Amnesty International concluded that the explosion at the Shati refugee camp on 28 July in which 13 civilians were killed was caused by a Palestinian rocket, despite Palestinian claims it was an Israeli missile.[38]
Killing of suspected collaborators
Shurat HaDin filed a suit with theICC chargingKhaled Mashal with war crimes for the executions of 38 civilians.[39][40] Hamas co-founderAyman Taha was found dead;Al-Quds Al-Arabi reported he had been shot by Hamas for maintaining contact with the intelligence services of several Arab countries; Hamas stated he was targeted by an Israeli airstrike.[citation needed]
On 26 May 2015, Amnesty International released a report saying that Hamas carried out extrajudicial killings, abductions and arrests of Palestinians and used theAl-Shifa Hospital to detain, interrogate and torture suspects. It details the executions of at least 23 Palestinians accused of collaborating with Israel and torture of dozens of others, many victims of torture were members of the rival Palestinian movement,Fatah.[41][42]
Hamas gunman shooting at a civilian vehicle in Israel[43]
On 9 October 2023Human Rights Watch stated that Hamas's apparent targeting of civilians, indiscriminate attacks, and taking of hostages amounted to war crimes.[44] On 10 October 2023 theOHCHR stated the taking of hostages and use of human shields were war crimes.[45] United Nations Human Rights chiefVolker Türk noted that militant groups' "horrifying mass killings" were violations of international law.[46]
Human Rights Watch has stated that "Hamas and Islamic Jihad are committing war crimes by holding scores of Israelis and others as hostages in Gaza".[59] During the Hamas attack approximately 200 people were taken hostage by militants. Hostages taken during the 7 October attacks by Hamas militants included women, children, elderly and infants.[60][61][62]
Murder of hostages
On August 31, 2024, the IDF recovered the bodies of six hostages, includingHersh Goldberg-Polin, from a tunnel in Rafah. Autopsies revealed that they had been killed from close range just 1–2 days earlier. Subsequently, it was reported that Hamas militants holding Israeli hostages in Gaza were given new orders to execute them if Israeli forces approached.[63] Following the recovery and burial of the hostages, Hamas released a propaganda video showing one of the slain captives before her death, seemingly intended to inflict psychological distress on the families of the hostages. Additionally, Hamas issued a warning that it would execute any remaining hostages if Israel attempted a rescue operation.[64]
During theOctober 7 Hamas-led attack on Israel, Israeli women, girls and men were reportedly subject tosexual violence, includingrape andsexual assault by Hamas or other Gazan militants.[65] The extent of sexual violence perpetrated by militants, and whether it was planned and weaponised by the attackers, has been the subject of intense debate and controversy.[66][67][68][69] Initially said to be "dozens" by Israeli authorities, they later clarified they could not provide a number.[70][71] Hamas has denied that its fighters committed any sexual assaults,[72] and has called for an impartial international investigation into the accusations.[73][74]
In January 2024, it was reported that several victims of sexual violence from October 7 and captivity in Gaza had come forward.[75][76][77] A number of initial testimonies of sexual violence were later discredited,[78][79][80] while Israel has accused international human rights groups of downplaying assault reports.[81] As of January 2025, the former head of the security cases division in Israel's Southern District prosecutor's office said that no case was being filed due to a lack of evidence and complainants, which she said could be due to victims being dead or unwilling to come forward.[82]
The UN'sSpecial Representative on Sexual Violence in Conflict,Pramila Patten reported in March 2024, with the "full cooperation" of the Israeli government,[83] that there was "clear and convincing information" thatIsraeli hostages in Gaza had experienced sexual violence,[84][85] and that there was "reasonable grounds to believe that conflict-related sexual violence occurred during the 7 October attacks".[86][87][84] The report was not a full investigation, but designed to "collect and verify allegations", and the team stated that their conclusions fell below the legal threshold of being 'beyond areasonable doubt'.[88] The UNCommission of Inquiry (CoI) subsequently published a legally mandated report in June 2024 that stated there was "a pattern indicative of sexual violence by Palestinian forces during the attack", but that it was unable to independently verify allegations of rape due to Israel's obstruction of its investigation. It also found some of the allegations to be false and "no credible evidence" that Palestinian militants received orders to commit sexual violence.[89]
On 12 April 2024, theEuropean Union sanctioned military and special forces wings of Hamas and the armed wing ofPalestinian Islamic Jihad due to their responsibility for the alleged sexual violence on 7 October.[90] The EU said the two groups' fighters “committed widespread sexual and gender-based violence in a systematic manner, using it as a weapon of war.”[91] On 23 April 2024 the annual UN Secretary-General's report included Patten's findings, but excluded Hamas from the "black list" of state and non-state parties guilty of sexual violence in 2023 due to the lack of what it deemed to be credible evidence, and called on the Israeli government to allow access to "relevant UN bodies to carry out a fully-fledged investigation into all alleged violations."[92][93][94][95]
^"Seventeen hours of terror: how Hamas invaded one Israeli community". The Financial Times. 21 December 2023.Archived from the original on 13 October 2023. Retrieved8 April 2024.Security footage shows the two gunmen ambushing a Mazda and firing multiple shots into the vehicle. The bullet-ridden car rolls forward, the gate opens, and the men enter the kibbutz.
Gettleman, Sella & Schwartz 2023: "Meni Binyamin, the head of the International Crime Investigations Unit of the Israeli police, has said that "dozens" of women and some men were raped by Hamas militants on Oct. 7."
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