August 25, 2014 by Paul Goldsmith
It may seem odd to some that Hamas’s leaders are willing to risk their freedom in order to support the Palestinian bid to join the International Criminal Court. Yet it seems a perfectly logical decision for me, once one takes into account the aims and tactics of Hamas. Although they speak the language of innocence, they will not be too bothered if they end up in front of the court, as they will be able to grandstand to their hearts’ content about their hatred of Israel. Even better for them will be a conviction for war crimes, which would allow them to be seen as martyrs. It is essentially a legal suicide, but many in Hamas will see it as no different from any other type of suicide, particularly if they take Israel with them.
The President of Mahmoud Abbas had said he wouldn’t apply to the court unless he had the support of ALL Palestinian factions. Applying to the court opens the way for a war crimes investigation of Israel. Because the court is then allowed to investigate retrospectively, all of a Israel’s actions over the past few decades, from the operations in Gaza recently to the building of settlements over the last 47 years, could be investigated and at worst lead to the imprisonment of Israeli leaders.
But Hamas has been indiscriminately firing rockets into Israel since 2000, in addition to numerous accusations of using human shields and deliberately firing them from civilian areas in the knowledge the population would be attacked in return. A Hamas spokesman argued the other day that “We are under occupation, under daily attack and our fighters are defending their people. These rockets are meant to stop Israeli attacks and it is well known that Israel initiated this war and previous wars.” However, it is unlikely this reasoning will hold up in court, as after the last round of fighting in 2008 a UN fact-finding team said that both Israel and Hamas had violated the rules of war by targeting civilians.
But I suspect that Hamas won’t mind that. They have made it very clear that they are prepared to die for what they think is their cause. They have also been quite willing to let Gazans die for their cause too. Some Hamas leaders were quoted during the recent battles as saying that the death of so many Gazans was an indication that a Hamas had ‘won’. Being imprisoned will make them heros to their ‘movement’, and be seen as just a part of their ‘struggle’. This will be especially true if in the process, some Israelis are imprisoned with them.
In a way, whilst some would Hamas signing up to the International Criminal Court as the opening of a new front in their battle to destroy Israel (as stated, I am still having to remind people, in their constitution), some might see it as an acceptance of military defeat. They cannot win a military battle, so they are trying a legal one.
Many anti-Israeli commentators on the Arab-Israeli situation point at the asymmetry of it all. The asymmetry of the death count, the asymmetry of the weaponry etc. Pro-Israeli commentators talk of a similar asymmetry in what I would call democratic adherence, in that Israeli commanders have to look after their population’s lives whilst Hamas commanders are quite comfortable with Gazans losing theirs. Israel launches rockets from bases in the middle of nowhere, Hamas launches rockets from hospital and school courtyards. Israel will argue that given their opponents are committed to their destruction and are not interested in adhering to rules of war, it is hard to stick to those rules as well as protecting your own population. Whether the International Criminal Court will recognise that, we may eventually find out, despite the pressure being put on Abbas by the US not to join it.
The most dangerous asymmetry of all though is that Israel will care about what the Court thinks of them. Hamas won’t, and will even celebrate a conviction. That is not an easy situation to deal with.