Hamas is deploying a set of tough ethical calculations as it planned its attack on Israeli civilians to kill, rape, and kidnap as it did.
One of them is in the use of human shields for their ongoing operations for those in Hamas in Gaza who may survive and continue to fight the Israel Defence Force (IDF). Hamas calculates that the more it provokes Israel into pursuing them even at the expense of civilian death and injury, the more Israel will be delegitimised by the media in more and more countries. Hamas leadership reaffirmed the human shield logic this year that they built the tunnels to keep its own organisation intact at the expense of its own civilians:
Interviewer: “Many people are asking: Since you have built 500 kilometers of tunnels, why haven’t you built bomb shelters, where civilians can hide during bombardment?”
Mousa Abu Marzouk: “We have built the tunnels because we have no other way of protecting ourselves from being targeted and killed. These tunnels are meant to protect us from the airplanes. We are fighting from inside the tunnels.
This is a simple admission that the tunnels are a convenient way for Hamas to hide its military assets underneath civilian infrastructure. This is a textbook use of human shields, which is prohibited under international law.
By locating Palestinian civilians in or above its military positions, Hamas calculates it cannot lose. Either using human shields will prevent Israel from attacking altogether as Israel determines it can’t attack without harming civilians, or as it has done now, attack even at the cost of civilian casualties. Hamas then doesn’t have to do more than let the international footage do its work generating moral outrage of a scale that delegitimises Israel further into equivalence with the terror of Hamas.
This Hamas logic is such a longstanding issue that the United States Congress passed the Sanctioning the Use of Civilians as Defenceless Shields Act in 2018. This law specifically called out Hamas.
Since at least 2014 the United Nations Relief and Works Agency (UNRWA), whose sole mission is to provide relief to for Palestinians, has repeatedly found stores of Hamas rockets hidden in tunnels beneath its schools.
In 2014, a human rights lawyer on CNN said:
The idea that Palestinians use their children as human shields is racist and reprehensible.”
To which host Jake Tapper responded:
We have video of the Hamas spokesman on television telling people to stay in their homes, that it’s an effective way to make sure to fight off the Israelis. That’s not racist. That’s just a fact.”
From research conducted by NATO, Hamas’ most common uses of human shields have been going on since at least 2007 and include:
There is a specific ethical equation Hamas has to make to get anything out of what it instigated in its attack.
The use of human shields is an example of ‘lawfare’; the use of the legal system against an enemy by delegitimising them, and winning a public relations victory that may gain international support in such bodies as the United Nations Security Council. It a way a small actor magnifies its power against a much more powerful force like Israel. No matter how Israel justifies a strike, the framing of the image of dead and wounded civilians frames the narrative.
Even if at the end of the war Israel justifies each and every one of its attacks from a legal perspective with well considered legal arguments, public opinion shifts further away from supporting Israel at all: politics trumping law.
National governments should be able to justify their position and reveal their adversary’s use of civilians with well documented incidents and supportive messages, working across multiple channels to convey those narratives.
Israel is in some senses being defeated by Hamas either by attacking to destroy Hamas and killing innocent people, or not attacking and causing complete political chaos inside Israel and massive triumph to its multiple state and terrorist enemies which surround it.
The 27 European Union nations see this growing dilemma clearly, with the European Union nations jointly condemning Hamas for what they described as the use of hospitals and civilians as “human shields” in the war against Israel.
Last week the EU nations said in a statement they join “calls for immediate pauses in hostilities and the establishment of humanitarian corridors, including through increased capacity at border crossings and through a dedicated maritime route, so that humanitarian aid can safely reach the population of Gaza.” And they reiterated their “call on Hamas for the immediate and unconditional release of all hostages. It is crucial that the International Committee of the Red Cross is granted access to the hostages.”
And as a key tenet, it said that “the EU condemns the use of hospitals and civilians as human shields by Hamas.”
A further brual success was at the United Nations Security Council resolution last week, which notably the US let through rather than veto. The resolution made no mention of a ceasefire. It didn’t refer to Hamas’s attack on Israel on October 7th. It called for the formation of humanitarian corridors for civilians to pass through, and the release of captives. Hamas would view this resolution as a diplomatic triumph.
So Hamas knows that it can win another part of the diplomatic war in part if it can turn the EU against Israel and ensure that its sole remaining strong ally would be the United States. Even in the United States, Israel has continued to lose support among younger generations because the Israeli government has turned harder and harder right since the 1990s and completely walked away from the ideals that it started with in the immediate decade after 1947.
Hamas has found its win-win weapon: now when the IDF uses kinetic power and the number of civilian causalities surges, Hamas can use that as a weapon in the lawfare it conducts. It would be able to accuse the IDF (and Israel) of committing war crimes, which in turn could result in the imposition of a wide array of sanctions and further loss of international support. That is a serious result for Hamas after killing 1,300 people, wounding many more, terrorising whole towns and kidnapping many Israeli citizens for ends in which few will survive to live again.
That makes for a neat but dark Hamas calculus used effectively over many years and used effectively now.