Hamas' Line of Defence to Goldstone Report

A Qassam rocket which was shot from Gaza and hit AshkelonPic: A Qassam rocket which was shot from Gaza and hit Ashkelon

Israel has recently delivered to the United Nations Secretary-general Ban Ki-moon its official response to the UN’s fact finding mission to Operation Cast Lead, headed by Judge Richard Goldstone. Hamas’ government is also preparing to submit its official response before the grace period of six months set to the parties by the Goldstone committee is over.

In sharp contrast to the genuine fears expressed by Israel, Hamas does not seem to feel any threat in the legal arena. On the contrary, Hamas demonstrates self confidence based on the understanding that the Goldstone committee strived only to incriminate Israel and all other limited references to the other side were just for lip service without any legal significance. Musa Abu Marzouq, Hamas’ second in command, said in this regard in an interview to Al-Mashahid Al-Siyasi newspaper (December 8, 2009) that “All paragraphs in the Goldstone report convict Israel and totally exonerate Hamas from any misconduct... Likewise, the [Goldstone] report exonerated Hamas from all other accusations mentioned by Israel and even when the [Goldstone] report is dealing with the rockets which were launched from the Gaza Strip it speaks about military groups without naming Hamas.”

Hamas’ line of defence vis-à-vis the Goldstone report has been shaped by a group of Palestinian jurists headed by Diya Al-Din Muhsin Al-Madhoun, former legal adviser to Ismail Haniyeh (Hamas Prime Minister) and today chairman of the Tawtheeq (documentation) organization that was the key factor assigned by Hamas’ government, on which the Goldstone committee relied for sources of information in its fact finding mission. In series of interviews to the media, Madhoun elaborated as follows Hamas’ main legal arguments of its would be response to the Goldstone report assumed to be delivered in the near future to the UN secretary general.

The armed struggle is legitimate
Madhoun asserts that all historic Palestine is an occupied land and that the international law legitimizes the right of self defence and resistance of the Palestinian people, who are living under 61 years of occupation. Therefore, Madhoun argues that “resistance operations conducted by the Palestinian resistance organizations, including launching rockets and mortar shells at the occupying Zionist forces, and all other military operations, are legitimate according the international law under the principle of defending our people and liberating our occupied land.”

Israel has no right for self defence
Madhoun entirely rebuts Israel’s claim for self defence arguing that it constitutes a grave violation of the Palestinian people’s right for self defence as reflected in its armed struggle to liberate the land of Palestine. And in his words (translated from Arabic): “the war against Gaza was illegitimate... as the international law rules that there isn’t legitimate defence [of the occupier] against the legitimate defence [of the occupied] embodied in the defence through struggle.”

Hamas didn’t want to kill Israeli civilians
According to Madhoun, Hamas and the other “Palestinian resistance organizations” were systematically prudent in implementing the international law and avoided intentionally targeting Israeli civilians. Referring to the many hundreds of rockets which struck Israeli communities during the war, Madhoun explained that the Palestinian organizations launched the rockets only at “military targets”, such as tanks positions, military airports and concentrations of Israeli military forces on their way to invade the Gaza Strip. He finds evidence in the low number of Israeli fatalities totalling only three people who were killed by the “inaccurate rockets when they missed their original targets”. Furthermore, Madhoun stressed that Hamas spared the lives of Israeli civilians, claiming that if they were targeted dozens of them may have been killed.

Rockets were launched only at occupied territories
Madhoun argues that Israel’s claim that Hamas and other Palestinian terrorist organizations launched rockets at its sovereign territory is groundless. Relying on UN resolution 181 (known as the Partition Plan for Palestine), but without accepting it, Madhoun said that all rockets targeted only areas which were designated to the “Arab state” by UN resolution, and as Israel has no internationally recognized borders with the Palestinian territories, their areas are still under conflict. Consequently, he concludes that Israel violated the rights of the Israeli civilians for security in settling them illegally in this military disputed area and thus risking their life.

No legitimate targets in Gaza
Madhoun unconditionally negates justification for any Israeli military operation in the Gaza Strip. In addition to the aforementioned arguments denying Israel’s right for self defence, Madhoun noted that the international law prohibits attacks on any target when there is a doubt whether it is combatant or civilian. “My stand is that all targets bombed in the Gaza Strip are under the category of doubt”, he said.