July 31, 2019
Incendiary Balloons: A National Security Lawyer Witnesses Hamas War Crimes – Matthew J. Aiesi (Lawfare-Brookings)
News reports on incendiary balloon attacks on Israel that have destroyed more than 4,300 acres of land often fail to identify the balloons for what they are – a war crime. Traveling in Israel recently with a group of national security lawyers, I witnessed and documented some of these attacks firsthand.
The constant breeze off the Mediterranean Sea, which blows from Gaza to Israel, carries these incendiary devices into civilian communities in Israel, some just a few hundred meters from the border with Gaza. The attacks I saw amount to war crimes under international humanitarian law (IHL).
As Hamas has been using them, these incendiary balloon attacks violate numerous rules and customs of warfare – principally concerning the targeting of civilians and the use of indiscriminate weapons. The attacks also likely violate the prohibition on the use of incendiary weapons.
Hamas’ employment of incendiary balloons violates both the principle of distinction and the prohibition against targeting civilians to spread terror. The principle of distinction in the laws of war requires that parties to a conflict must, at all times, distinguish between civilians and combatants, and that attacks may be directed only against combatants. In this case, the Israeli communities in the Gaza envelope are purely civilian communities.
Moreover, the 1949 Geneva Conventions provide that “acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” The international community should unequivocally condemn the targeting and threatening of civilians.
Future engagement by the UN or third country intermediates who are working toward peace in the region should seek the surrender of those individuals responsible for committing war crimes to stand trial. Until impunity for war crimes ends, Hamas will likely continue to commit them.
U.S. Army Maj. Matthew J. Aiesi is an associate professor in the National Security Law Department at the Judge Advocate General’s Legal Center and School in Charlottesville, Va.