Legal Bases of Hamas’s Defense in Conflict with Zionism

Introduction

The resistance groups of Hamas in Palestine have transformed the subterranean spaces into strategic positions for defending themselves against the extensive aggressions of the Zionist regime. Such is the innovation within these spaces that they have evolved into the foremost defensive components of the resistance front, providing a secure and undetectable refuge for both militants and civilians against the indiscriminate attacks of the Zionist occupiers.

Hamas’ military tunnels, intricate and well-equipped, necessitate specialized technical knowledge in their construction and excavation. These defensive installations have been strategically prepared and positioned for long-term objectives, aimed at responding to the occupation by Zionist forces, being located in uniquely strategic locales. A distinguishing feature of the resistance front’s military tunnels, compared to other subterranean structures, is their advanced and complex design, enabling them to deliver effective strikes against the forces of the Zionist regime, thus establishing a relative balance of power and overcoming their adversaries’ equipment advantages. However, international allegations against the military structures of the Palestinian resistance groups in Gaza have raised questions and ambiguities that primarily require meticulous legal protection aimed at safeguarding these military capabilities. The central thesis of this article is to explore the legal foundations legitimizing the defensive strategy (underground tunnels) of Hamas militants and to scrutinize and respond to the complexities and nuances arising from this issue.

Another significant focus of this article is the legal examination of the military actions by the Zionist regime and Egypt in obliterating and destroying Hamas’ military tunnels. Despite being unprecedented crimes, these actions have so far been neglected by international and human rights institutions, remaining unaddressed by human rights advocates.

The significance and necessity of this article emanate from the fact that, despite the recurrent use of military tunnels in conflict arenas, there has been no effort—legal or security-focused—to dissect and analyze the issue of military tunnels and compare them with similar phenomena to date. No legal treaty or military doctrine has addressed this issue, with all attention being predominantly directed toward maritime, aerial, and cyber discussions. Furthermore, the military tunnels of the resistance front, despite their legitimate and conventional use in Hamas’s defensive war against Zionist militants, have consistently been under assault by the authorities of this regime in international forums, resulting in sporadic accusations by human rights institutions. Notably, an essential point worthy of investigation is that, despite the repeated use of military tunnels as a unique defensive strategy by the resistance front, there has been no effort to clarify their legal position internationally. The multifunctional applications of this kind of defensive strategy have complicated the assessment of its legal status. Consequently, this article aims to:

1. Elucidate the legal status of the utilization of these installations in the conflicts of Palestine and the Gaza Strip, answering the resulting questions and ambiguities.
2. Responding to international powers’ claims based on the illegitimacy of the defensive tunnels of Hamas and Hezbollah, invalidate the levied accusations.
3. Examine the legal status of the construction and utilization of Hamas’s military tunnels from the perspective of the laws governing armed conflicts; hence, it is essential to investigate matters such as the rules of engagement between Hamas and the Zionist regime, and the legal implications resulting from the Zionist regime’s military actions in attacking Hamas’s underground installations.

Daphne Richmond Barak (2018), in her book “Subterranean Warfare,” introduces Hamas and Hezbollah’s military tunnels as the most imminent threat against the national security of the Zionist regime in the not-too-distant future, seeking to unleash an onslaught aimed at delegitimizing them. In this time, after establishing her unsubstantiated hypothesis concerning the illegality of constructing and excavating underground military facilities by the resistance groups like Hamas, the author advocates for inhumane military countermeasures. This approach aims to confront Zionist militants with the tunnels of Hamas, thereby, through scholarly and media manipulations, lending an aura of legitimacy to the regime’s criminal acts in annihilating Hamas’s military and civilian installations.

James Fry (2006) in “Examining the Legal Methods of Weapon Utilization and Warfare in Underground Tunnels,” evaluates Article 36 of the 1977 Additional Protocol I, focusing on the modalities of weapon usage within these structures. According to this study, the interconnected and concealed network of military tunnels impedes the adoption of conventional countermeasures against military objectives, such as bombardments or aerial assaults. It necessitates that all principles of international humanitarian law are considered in every military maneuver to confront this form of warfare, minimizing harm and losses to the civilian population and adjacent non-military installations.

Nicole Watkins and Alana James (2016), in an article titled “Tunneling Towards the Zionist Regime: Hamas’s Complex Tunnel Network,” acknowledge that the army of the Zionist regime, or the IDF, during the 2014 war with Hamas—referred to by Palestinians as the Sturdy Foundations Operation and by Zionists as the Protective Edge Operation—has obliterated over 30 of Hamas’s military tunnels, utilizing various missiles and extensive, formidable aerial bombardments. This article, by identifying influential factors in advancing Hamas’s intricate tunneling network, evaluates the level of threats and ramifications emanating from Hamas’s tunnels concerning the national security of the Zionist regime.

Theoretical Foundations of International Humanitarian Law

International humanitarian law comprises treaty-based and customary rules aimed at “mitigating human suffering resulting from war,” with an objective of protecting individuals during conflicts, thereby balancing military necessities with human dignity in warfare. From times when soldiers have confronted each other in battles, significant limitations have influenced their conduct. Initially established on the chivalrous codes of conduct, these limitations evolved into customs and subsequently into rules, later known as the laws of armed conflicts or humanitarian laws.

Despite these, the fundamental principles’ violations in warfare have never been completely eradicated in battlefields. In fact, the onslaught of heightened emotions in war, coupled with the deployment of powerful weapons in the hands of young soldiers, has forged a blend that intensifies their rebellious acts. Although the ultimate goal of humanitarian law is not to prevent war per se, its objective is to constrain violence by safeguarding those who do not actively participate in conflicts, protecting properties not considered military objectives, and restricting combatants’ rights in choosing any form of warfare methods. Therefore, each armed conflict should not proceed in an environment devoid of legal norms and frameworks.

Rules Governing Armed Conflicts

The regulation and coordination of laws governing armed conflicts began in the second half of the 19th century, inaugurated by the 1856 Paris Declaration concerning maritime warfare, reaching its zenith in the 20th century. By the end of the 19th century, the international community witnessed the adoption of three international decrees: the 1864 Geneva Convention regarding the protection of the sick, wounded, and medical personnel; the 1868 St. Petersburg Declaration prohibiting certain specific weapons; and the 1874 Brussels Declaration concerning the distinction between combatants and civilians (Schindler, 2004: 102).

With the onset of the 20th century, many rules ratified in the treaties of the previous century evolved, culminating in the establishment of the 1899 and 1907 Hague Peace Conferences, which led to the enactment of the 1907 Hague Regulations. Today, the 1907 Hague Convention is not only binding on all members but most of its rules have attained such significance that they are considered customary international laws, binding all global community subjects.

Following this convention, other crucial treaties have achieved global acceptance, gaining membership of all states, notably the 1949 Geneva Conventions, ratified after World War II in a conference organized by the International Committee of the Red Cross in Geneva. Moreover, on June 10, 1977, two protocols were added to the 1949 Geneva Conventions, the first concerning international armed conflicts with 174 member states, and the second pertaining to non-international armed conflicts with 169 members. Many regulations of these two protocols reinforce the customary international humanitarian laws considered binding in all international and internal conflicts for all subjects of international law.

Hence, along with other declarations and agreements, the laws of armed conflicts have evolved through the aforementioned conventions, most of whose provisions have transformed into customary legal rules, forming the core framework for decision-making in battles. In this context, military tunnels also introduce a new dimension to the spectrum of armed conflicts and the documentary or customary rules governing them, necessitating their examination alongside specific laws related to aerial, maritime, terrestrial, and submarine conflicts.

What can be deduced from the above theoretical foundation is that, according to the rules governing armed conflicts, the construction and utilization of military tunnels are not explicitly prohibited. However, this proposition does not imply the legitimacy of their use under all circumstances.

The Nature of the Conflicts Between Hamas and the Zionist Regime

The primary prerequisite for applying humanitarian law rules is the determination of the legal nature of conflicts. The enduring confrontations between Palestine and the Zionist regime must be regarded as amongst the most intricate forms of conflict, with roots stretching back 70 years. Essentially, since the fruition of the Jewish efforts to establish a regime belonging to the non-indigenous Jews in the lands of Palestine, officially realized by the decision of the United Nations General Assembly in 1947, the initial sparks of prolonged disputes were ignited between Palestinians and the occupying regime. In some instances, other Arab countries such as Egypt, Jordan, Lebanon, and Iraq supported the Palestinians, amplifying the scope and intensity of the conflicts. Consequently, the wars of 1948, 1967, 1973, 2008, and the latest in 2021, are among the armed conflicts that have occurred between the Palestinians (Arabs) and the occupying regime and continue to unfold.

However, a key distinctive aspect of contemporary conflicts between Palestine and the Zionist regime lies in the identities of the conflicting actors in the war. The presence of liberating movements or resistance groups in the Palestinian conflicts is among the issues that have made the decision-making regarding the nature of the conflicts challenging. Therefore, it necessitates delving into explaining the identity of the “Islamic Resistance Movement,” commonly known as Hamas.

Following the ongoing events in Palestine and its occupation by Zionists, the Palestinian people, under the banner of resistance groups, stood firm and resisted the oppressions of the Zionist regime. A prominent example of this led to the establishment of the Palestine Liberation Organization in 1964. The responsibility of this organization was to safeguard the interests of the Palestinian people in the international community, pursuing the Palestinian cause based on the right of self-determination in international organizations. This organization, while achieving observer status in the United Nations, made significant efforts to vindicate the right of self-determination for Palestinians in international assemblies, recognized and formalized through international procedures and resolutions such as the UN General Assembly Resolution 1980: para 5, thereby obtaining legitimacy (de Waart, 1994: 24).

Consequently, with the recognition of the Palestinians’ right to self-determination, various liberation movements emerged to defend the interests of the Palestinian people, among which the Islamic Resistance Movement, Hamas, stands as a pivotal exemplar. When the Palestine Liberation Organization (representing Palestine internationally) adopted a reconciliatory approach with the Zionist regime through the Oslo Accords, Hamas distanced itself from this organization, progressively bolstering its military front against the Zionist forces. This crescendoed in 2006, when, following the Palestinian Legislative Council elections, Hamas took full control of the Gaza Strip, emerging as a liberation movement endowed with territorial jurisdiction, persistently confronting and clashing with the Zionist regime, marking episodes such as the 22-day Gaza War and the Sword of Jerusalem operation.

Under Article 1 of the 1977 Additional Protocol I, the struggle against any occupying power signifies the existence of armed conflicts between parties. With the confirmation of the Zionist regime’s occupier status and the demonstration of ongoing armed conflicts between Hamas and the occupying regime of Jerusalem, the remaining issue pertains to the nature of the ongoing conflict. In light of international community practices, peoples’ struggles for the realization of self-determination hold intrinsic legitimacy. Given the United Nations resolutions acknowledging this right for the Palestinians, liberation and resistance groups like Hamas fully possess this right to resist and combat occupying and colonial regimes. Thus, in light of Article 1 of the 1977 Additional Protocol I, Hamas is recognized as a subject of humanitarian international law. Additionally, based on the same document and UN General Assembly Resolution 3103 (1973), the armed conflict between liberation movements—for the realization of self-determination—and colonial and occupying powers, is considered an international armed conflict, subject to the regulations of the Geneva Conventions and other international documents (Schindler, 2004). This is palpably observed in the ongoing conflicts between Hamas and the Zionist regime, considering the necessary conditions for confirming the existence of an armed conflict, such as the parties’ resort to organized armed forces, the prolonged nature of the conflict, and the organization of the conflicting parties, as clearly substantiated by the International Court of Justice’s advisory opinion on the Separation Wall and the UN’s investigative reports on Gaza (ICJ Reports, 2004).

Military Tunnels

Hamas’ use of subterranean tunnels was initially solely limited to economic purposes and similar necessities. Since 1948, when the Zionist occupying regime was established, despite the severance of Gaza’s connection to many commercial and transit passageways, Egypt and the Sinai Desert remained as the only active arteries left for Gaza. With the regime’s escalating annexation of Palestinian lands, Gaza started facing increasing isolation from other communication highways, and the Zionist regime intensified the siege by demolishing Gaza’s ports and airport in 2001, as well as destroying over 1,500 residential homes.

As a result, the Zionist regime thoroughly engulfed Gaza in an inhumane siege, prohibiting the entry of essential items, including medicine, food, fuel, and agricultural products, necessary for the citizens. Subsequently, the then Egyptian government—under Hosni Mubarak—followed the Zionist regime’s sanctions against Gaza, entrapping the non-combatant men and women of the region in an economic encirclement and registering horrendous crimes. Hamas, aiming to combat the intense siege and secure the people’s vital necessities, began tunneling in their border areas, enabling the essential and vital needs of the people to be met (Richemond-Barak, 2018:25).

From 2014, with the intensification of conflicts between Hamas and the Zionist regime, Hamas’ tunnels entered the conflict scenes, marking full-fledged warfare. In all reported instances of Hamas utilizing tunnels, there has been no evidence so far of any aggressive use by Hamas of these structures, including suicidal and explosive actions, demonstrating their defensive nature in employing any military tools and strategies. For example, Hamas militants, by digging a tunnel over 300 meters long, crossed the borders of the occupied territories and reached the Kerem Shalom border crossing to counteract the adversaries of the Zionist regime and secure the necessary goods for the citizens (Richemond-Barak, 2018:28).

Although Hamas, in this action, was inevitably engaged in face-to-face combat with the army of the Zionist regime, the path of the tunnel and the remnants of the casualties from this attack did not inflict any harm on the civilians of the occupied territories. Even since 2014, when the conflicts between Hamas and the Zionist regime officially intensified, Hamas’ cross-border tunnels, despite their relative proximity and vulnerability to the scant civilian population, have so far caused them the slightest harm. In the meantime, Hamas utilized robust and intricate underground networks, extending up to 20 meters deep and over 1.5 kilometers long, interspersed within areas such as Khan Yunis in Gaza and Eshkol, as illustrated in Figure 2, in occupied Palestine. These networks included multiple entry and exit routes and air ventilation shafts (Richemond-Barak, 2018:29).

These military facilities, while empowering Hamas fighters to enter the occupied territories of the Zionist regime in response to its armed aggressions and conduct surprise attacks against its military forces, also provided an opportune refuge safeguarded against assaults by Zionist fighter jets. However, a crucial point to emphasize is that even according to the media of the Zionist regime, none of the attacks initiated from Hamas’ defensive tunnels have thus far resulted in harm to civilians, nor have non-military positions and installations incurred the slightest damage from such assaults and structures. Unclassified and published information regarding the construction and utilization of military tunnels by Hamas’ forces reveals that they resorted to underground structures solely for gaining military advantages, utilizing them not merely as a weapon, but as a tactical wartime methodology (Ginsburg, 2014). What inclined Hamas towards employing tunnels against the Zionist militants were solely legitimate defensive and economic objectives aimed at mitigating, to some extent, the inhumane pressures exerted on the people of Gaza, enabling them to legitimately defend themselves against the armed aggressions of the occupying regime’s army.

Analysis and Findings

Initially, Hamas’ military tunnels were considered a method of warfare, not an offensive or suicidal weapon. This contrasts with armed terrorist groups that have utilized underground structures as devastating weapons against civilian populations. Another notable aspect is the legitimate objectives concealed behind Hamas’ use of military tunnels. As observed in the case of Hamas, their primary and ultimate aim of employing underground formations initially was strictly confined to economic objectives, intending to counteract the illegal siege of the Gaza Strip.

The study of official reports released by international bodies, or even the media of the Zionist regime, presents no evidence indicating harm to civilians originating from military tunnels. Nevertheless, digging and constructing military tunnels, despite their inherent challenges, are not prohibited under existing international laws. None of the regulations concerning armed conflicts prohibit adversaries from digging military tunnels unless the action involves violating fundamental humanitarian principles such as discrimination, proportionality, or precaution. Consequently, defensive tunnels that have been constructed and utilized, considering explicit legal provisions, wholly possess legitimate legal effects against the encounters with Zionist occupying forces, and their utility can be adjusted based on prevailing conditions and circumstances.

What emerges from the detailed discussion on Hamas tunnels in conflict with Zionist militants is the legitimate, conventional, and defensive employment of such structures against the aggressive regime. This assertion is corroborated and documented through an investigation in the reports of international authorities on this matter (United Nations Human Rights Council Report: 2015, para 29).

However, a question that naturally arises concerns the extensive dimensions of the tunnels, which are sometimes utilized by Hamas in the border regions of Egypt and occupied Palestine. Two perspectives can answer this question. Persistent debates over the legitimacy of the borders of the Zionist regime still exist, and the steadfast positions of the Palestinians since 1945 have highlighted this issue for individuals under Palestinian jurisdiction and territory. Furthermore, the international community remains silent on the manner of states’ sovereignty over their subterranean territories. Despite international laws defining states’ sovereignty in maritime and aerial regions, the laws remain mute regarding states’ subterranean sovereign territories, lacking explicit rulings in this aspect.

The Illegitimacy of the Borders Belonging to the Zionist Regime

One of the established principles of international law is the non-recognition of territories and regions acquired through the use of force or the threat thereof. This principle is explicitly articulated in Article 2, Paragraph 4 of the United Nations Charter and has been reiterated in the resolutions and declarations of this organization (UN 1947, UN General Assembly Resolution 1970, General Assembly Declaration), known as the Stimson Doctrine. According to this principle, the coercive occupation of a territory does not confer any sovereignty to the occupying power and emphasizes the illegitimacy of the acquired territories. This principle is the basis for the withdrawal of Zionist troops from the occupied lands, a concept steadfastly upheld and validated by the Palestinians and Hamas. The occupied Palestinian territories could only fall under the sovereignty of the Zionist regime if, firstly, their occupation was not accompanied by military force, and secondly, the occupation was uncontested; whereas the people and nation of Palestine have consistently expressed their persistent opposition and protest against the occupation of the relevant lands by the Zionist regime.

The extensive aggressions of the Zionist regime and its effective control over the occupied territories render Hamas as a liberating movement for vindicating the Palestinian right to self-determination, eligible to utilize the right to use force. Despite its territorial jurisdiction over the Gaza Strip, Hamas is considered a subject of humanitarian international law, where its continuous objection and opposition to the occupying policies of the Zionist regime act as a barrier against the legitimacy of the borders belonging to this regime. Consequently, the defensive tunnels of Hamas, which have assumed a cross-border aspect in response to the occupations and aggressions of the Zionist regime, not only do not violate the sovereignty of any territory or land but are constructed in the direction of legitimate defense, in full compliance with the fundamental principles of general and humanitarian international law.

Sovereignty Over Subterranean Territories: Absolute or Exclusive?

Although international law has delineated the boundaries of sovereignty in maritime, aerial, and outer space domains, the primary discourse revolves around the extents and frontiers of sovereignty beneath the Earth’s surface, vividly exemplified in the discussions on Hamas’s military tunnels. Therefore, to elucidate the position of international law regarding subterranean territories, it becomes imperative to employ analogous arguments based on logical reasoning, extrapolating the rulings pertinent to aerial and maritime sovereignties of states in international law to the subterranean domain, and deriving a comprehensive judgment grounded in these inferences.

In the realm of international maritime law, the pivotal statute governing states’ sovereign actions over seas is the 1982 United Nations Convention on the Law of the Sea. This convention explicitly enumerates the jurisdictions of coastal states over maritime zones, articulating the rights emanating therefrom and attributed to nations. According to this convention, states possess absolute sovereignty up to 12 nautical miles from their baseline, sovereignty extendable to the superjacent airspace as well as the seabed and its subsoil. However, the subsequent 12 nautical miles, known as the Contiguous Zone, grants states a more limited jurisdiction, confined strictly to customs, fiscal, immigration, or sanitary oversight, as stipulated in Article 33 of the convention. Ultimately, an additional 176 nautical miles, designated as the Exclusive Economic Zone, while restricting the sovereign rights and jurisdictions of coastal states, also bestows upon other states the right to peaceful exploitation.

According to Figure 3, the sovereignty of states gradually diminishes from a country’s territorial waters, reaching out towards the open sea. As we move farther from the baseline of coastal states, the right of sovereignty becomes increasingly restricted, transitioning into jurisdiction, up to points like the open sea, where no country can assert sovereignty or jurisdiction anymore. Furthermore, states even possess the capability to benefit for peaceful purposes in areas under the jurisdiction (not sovereignty) of the coastal state, reflecting the limited scope of states’ sovereign territories in maritime regions.

However, the conditions are somewhat analogous in the discussion of aerial and space law. The International Civil Aviation Treaty 1, known under the title of the Chicago Convention, validates a country’s sovereignty over the airspace above its territory. However, the 1967 Treaty, concerning the governing principles of countries’ activities in exploring and utilizing outer space, briefly referred to as the Outer Space Treaty, considers the right of sovereignty and jurisdiction of states solely up to outer space, implementing a distinct legal regime based on international cooperation and peaceful purposes for outer space.(Richemond-Barak, 2018: 71)

The review of laws governing seas, aerial, and space regions culminates in two fundamental observations:

• The right of state sovereignty in occupied regions is not absolute, and this right significantly contracts, ceasing at a specific depth or distance.
• In free areas, beyond the jurisdiction and sovereignty of states, other countries have the possibility to initiate any form of peaceful activity.

Despite the fact that public international law has not yet made a decision regarding the manner of states’ sovereignty over subterranean regions, the above conclusion can be extended to these areas, issuing a general ruling. Consequently, Hamas’ defensive and cross-border tunnels prevent the violation of sovereignty or intrusion into Egypt’s territory for two reasons. The depth of Hamas’ defensive and cross-border tunnels extends beyond 20 meters below the ground, seeming to surpass the boundaries of territorial sovereignty and jurisdiction of states. Additionally, Hamas’ primary objective in digging the tunnels was not exclusively for economic purposes, and the cross-border tunnels were initially utilized for this intention. Peaceful (economic) activities are not only unrestricted outside the sovereign territories of states, but in some cases, they are also permitted within areas under the jurisdiction of states. Even though Hamas’ underground tunnels are, by definition, a military component, due to their peaceful (economic) utility, they never result in the breach of international laws, even if excavated in jurisdictions (not sovereignties) of states such as Egypt.

A crucial point to note is that in public international law, there are two general interpretations of the term “peaceful,” titled “non-military” and “non-aggressive” (Morgan, 1994: 230). However, substantial disagreements provoke discussion in the international community regarding what is meant by “peaceful” in international law. Some interpreters have construed the term “peaceful” to mean non-military activities (Freeland & Maogoto, 2007: 179), but the consensus among states today is the interpretation of “peaceful” as non-aggressive activities. Until now, no state has objected to the interpretation of this issue (Cheng, 1998: 522), and it has not hindered the formation of a customary rule. In summary, it can be said that interpreting the term “peaceful” as non-aggressive has marked the consensus of the international community in customary law (Tannenwald, 2004: 373). Therefore, any activity that doesn’t have an aggressive application possesses a peaceful nature in international law, which is not subject to prohibition. Based on this, Hamas’s defensive tunnels, despite the repeated necessities, have never been used for aggressive objectives against the state of Egypt. All instances of the construction of these facilities were initially considered for economic purposes and subsequently for legitimate defense and reciprocal action according to Article 51 of the United Nations Charter.

The affirmation of the aforementioned assertion can be found throughout the reports of the Independent Commission of Inquiry on the issues of Palestine and the occupied territories. On July 23, 2014, the United Nations Human Rights Council, in Resolution 211-S at its twenty-ninth annual session, decided to immediately establish an “Independent International Commission of Inquiry to conduct investigations regarding all violations of humanitarian and human rights laws in the occupied Palestinian territories”, aimed at reviewing the aggressive actions of the Zionist regime (UN Human Rights Council Resolution, 2014). In the fourth report of this Commission, not only were Hamas’s defensive and cross-border tunnels not condemned, but also, under paragraph 58 of this report, the Zionist regime’s actions in the obliteration and destruction of Hamas’s underground facilities were criticized and objected to by the Commission (Human Rights Council Report, 2015: para 58).

In a historical declaration, despite all media and political onslaughts of the Zionist regime, the Commission fully aligned the military structures of Hamas with the laws of armed conflicts. The exclusive use and utilization of them by Hamas were contingent upon the military positions of the Zionist regime, specifically under the legitimate defense conditions stipulated in Article 51; without imposing the slightest danger or threat to civilians. In addition to this, the United Nations Human Rights Watch, in its official report, deemed all claims by the Zionist regime regarding the threatening nature of Hamas’s defensive tunnels as exaggerated and baseless (Human Rights Council Report, 2015: para 108).

Crimes Against Humanity by the Zionist Regime

In accordance with previous discussions, the use of Hamas’s military tunnels was not only not prohibited or condemned by the reporters of the United Nations Human Rights Commission, but it was the unlawful and illegitimate actions of the Zionist regime and Egypt against Hamas’s tunnels that provoked the commission’s response.

In one example reported by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Zionist forces, disregarding the principles of distinction, proportionality, and precaution, completely destroyed one of the underground structures attributed to Hamas through intense aerial bombardment, causing extensive damage and loss in comparison to the military advantage gained. The Zionist military even refrained from delivering the bodies of the deceased to Palestinian families, adding another crime to their list of atrocities (United Nations Office for the Coordination of OCHA (Humanitarian Affairs), 2017). The destruction of Hamas’s complex and multi-faceted tunnels through aerial bombardment is almost an impossible feat, only assessable by considering all aspects as a last resort. Although Hamas’s tunnels, according to reports from the Independent Investigative Commission of the United Nations, do not pose a serious and imminent threat to civilians and are reasonably distanced from civilian populations, the legal aspect of the tunnel infrastructure hinders precise proportionality assessment before destruction.

Determining whether the collateral damage from tunnel destruction is more or less than the military advantage is practically unfeasible, but the anti-tunnel actions of the Zionist regime and Egypt blatantly violate the rules of armed conflicts and humanitarian laws. Egypt, by extensively demolishing Palestinian residential areas, caused the displacement of nearly 3,200 families. Egyptian authorities, without undergoing identification and mapping processes, inflicted unrecompensed damages on the Palestinian civilian population, which, according to the United Nations Human Rights Watch report, not only eliminated many jobs and agricultural lands but also deprived a significant number of children of the opportunity to continue their education (2004, Human Rights Watch Report). The Human Rights Watch, besides considering Egypt’s actions against Hamas tunnels as a gross violation of human rights and humanitarian laws, also levied similar criticisms against the Zionist regime for demolishing the houses and residences of Palestinians in the Gaza Strip. In its report, this institution found the Zionist regime’s descriptions of Hamas tunnels and the threats emanating from them exaggerated and unreliable, initially obligating the Zionist regime’s army to precisely identify and map the suspected tunnels. Their current method based on the destruction and obliteration of civilian areas was strongly deemed ineffective and threatening, leading to the homelessness of a large number of innocent children, women, and men.

Despite the numerous recommendations and warnings from human rights institutions to the Zionist regime, they refused to comply with the directives of the subordinate bodies, and this time, more aggressively than before, acted against the defensive tunnels of Hamas, making women and children the first victims of this regime’s aggressive actions. Zionist military forces resorted to destructive methods, including the use of emulsion colloids. The emulsion, harmless in itself, becomes extremely powerful when combined with explosives, leaving behind devastating effects. According to the Zionist military commander, soldiers who managed to reach parts of the Hamas tunnels in Gaza, placed explosives combined with emulsion, resulting in widespread explosions and destruction of facilities and nearby areas. More importantly, the Zionist regime’s somewhat successful experience with this method led them to employ it in their future confrontations with Hezbollah’s tunnels in Lebanon (Zeitun, 2017).

The adopted approach remained silent by the international communities despite all its deadly risks. Defensive tunnels, serving as multi-purpose military objects, are not militarily targeted unless the principles of distinction, proportionality, and especially precaution are observed, ensuring that attacks do not affect civilians or civilian objectives near the defensive tunnels. An assessment of the military advantage gained from the destruction is among the most essential components and prerequisites for action against these facilities, which must be considered and evaluated before any military maneuver.

Hamas’s complex and multifaceted tunnels, consisting of entirely diverse components like multiple entrances and exits, several ventilation shafts, and unique and unpredictable paths, necessitate the adoption of special and more scrutinized precautions to uphold the utmost humanitarian principles. This requirement was blatantly ignored by the Zionist military forces to the extent that the operation could be considered a clear manifestation of the gross and widespread violation of humanitarian rights and the imperative rules of international law (ICJ Reports, 1996: para 79).

In the course of their criminal operations, the Zionist regime indiscriminately designated all areas, residences, sites, and belongings of Hamas as military targets, directing their fighter jets to bombard the integrated and defensive tunnels of Hamas. According to statements from the United Nations High Commissioner for Human Rights, this led to the destruction of all civilian vital infrastructures in Gaza and marked tragic incidents. Based on human rights institutions’ reports, Zionist military forces used unconventional explosive weapons and equipment such as thermobaric bombs, cluster munitions, and weapons containing uranium, all inherently indiscriminate in nature, during this attack (United Nations Human Rights Council, 2009: 4).

Without a doubt, the actions of the Zionist regime have unequivocally laid the groundwork for another crime against the Palestinians and the people of Gaza from several legal aspects, as detailed below:

1. None of the methods or military means employed by the Zionist military had the capability to limit the effects of their use.
2. The methods and military means utilized by the Zionist regime did not allow for directing the attack and its effects specifically toward military objectives, causing excessive damage.
3. The aerial bombardments by the Zionist military in urban and densely populated areas, where Hamas’s defensive tunnels were necessarily located, were prohibited under all circumstances and conditions; even if, hypothetically, Hamas’s tunnels are considered a military target.
4. Civilians and civilian facilities, including people and areas protected by humanitarian law, were deliberately targeted by the Zionist military forces.

Conclusion

Over the past fifteen years, the Zionist regime has exhaustively utilized a spectrum of technologies and inhumane tactics in a bid to identify and obliterate the military tunnels of Hamas and the Resistance Front. Despite extensive surveillance over the Gaza Strip, Hamas and its affiliated military wings managed, during the 11-day ‘Sword of Quds’ conflict in 2021, to launch over 3000 missiles of various short and medium ranges. These were fundamental elements in enhancing deterrence power and are among the primary tools adopted in asymmetric strategies against superior forces. The origins of these launches predominantly lie in underground military facilities. The military tunnels are part of the capabilities of the Resistance Front against the Zionist occupiers, revealing the vulnerabilities of this regime more than ever. This defensive strategy, by delivering unexpected blows and complicating the warfare, has balanced the disparity between heavily armed forces and other parties, significantly elevating the likelihood of victory.

This article concludes that the construction and utilization of military tunnels are not inherently in violation of international commitments, positioning their legitimacy within a specific legal framework. Military tunnels cannot be used for aggressive objectives or to lay mines, nor can they be excavated within densely populated civilian areas intending to spread terror amongst the inhabitants. The legitimacy of using military tunnels solely hinges upon their compliance with the foundational principles of humanitarian international law. Thus, the exclusive underground networks of the Resistance Front, including groups like Hamas and Hezbollah, can be considered regulated entities. Despite all formal reports from international bodies to date, there hasn’t been conclusive evidence indicating aggressive and illegitimate use of tunnels in Palestine and Lebanon against the Zionist regime occupiers. Furthermore, no civilian casualties resulting from the use of this defensive measure have been reported, despite Zionist accusations. Contrarily, even with repeated advisories from the UN’s Human Rights Watch and Commission to the Zionist regime about exercising caution against Hamas’s military tunnels, the regime’s military personnel, neglecting all these advisories and relevant principles, committed another atrocious crime by militarily targeting all Palestinian positions in Gaza Strip, which has marked a blatant violation of the Geneva Conventions and its additional protocols. Pursuing and prosecuting the Zionist culprits in national and international criminal courts is the least retribution awaiting these criminals.Top of Form

Suggestions

1. Given that the establishment of deep excavation facilities helps protect the military personnel and occupants within from the threat of Zionist aerial and missile attacks, and it further contributes to the enhanced safety of adjacent civilian installations and the overall structural complex, adopting this method is a definitive and suitable strategy to ensure the security of civilians and refute the allegations of human rights institutions against the legitimate defensive tools of Hamas.
2. In accordance with Articles 48, 51(2,3,4,5), 52(2), 57(1,2), and 58 of the First Additional Protocol of 1977, Article 13(2,3) of the Second Additional Protocol of 1977, Article 2(3) of the 1907 Hague Convention, Articles 1 to 3 of the Amended Second and Third Protocols of the Conventional Weapons Convention, and Articles 6, 7, and 13 of the Second Protocol of the Hague Convention, the actions committed by the Zionist military in the destruction and bombing of Hamas’s military and civilian infrastructures, as well as those of Palestinians, violate the established principles of treaty-based and customary international law. Referring to the above articles, one can witness the prosecution and trial of Zionist officials in national and international criminal courts.

References:

– Arkin, William)2007(. Divining Victory: Airpower in the 2006 Israel Hezbollah War, Air University Press.

– Cheng, Bin)1998(. Studies in International Space Law, Clarendon Press.

– de Waart, Paul)1994 (. Dynamics of SelfDetermination in Palestine: Protection of Peoples as a Human Right (Social, Economic and Political Studies of the Middle East and Asia), Brill.

– Gardam, Judith)2004(. Necessity, Proportionality and the Use of Force by States, Cambridge University Press.

– Lauterpacht , Hersch)2004(. International Law: Disputes, War and Neutrality )Volume 5, Parts IX-XIV(, Cambridge University Press.

– Morcan, James & Morcan, Lance)2015(. UNDERGROUND BASES:  Subterranean Military Facilities and the Cities Beneath Our Feet, Sterling Gate Books.

– Richemond-Barak, Daphné)2018(. Underground Warfare, Oxford University Press.

– Said, Edward W.)2015(. The Question of Palestine, Vintage.

– Schindler , Dietrich)2004(. The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and Other Documents, Brill – Nijhoff.

B) Articles

– Elias , Olufemi)2006(. “Persistent Objector”, Oxford Public International Law(OPIL), Retrieved from: https://opil. ouplaw. com/ view/10.1093/law: epil /9780199231690 /law-9780199231690-e1455 ?rsk ey=bW4XnM&result=1&prd =OPIL.

– Fry, James D.)2006(. “Contextualized legal reviews for the methods and means of warfare: Cave combat and international humanitarian law”, Columbia Journal of Transnational Law , Vol. 44 , Issue 2, pp. 453-519.

– Kober, Avi)2008(. “The Israel Defense Forces in the Second Lebanon War: Why the Poor Performance ?” Journal of Strategic Studies, Vol. 31 , Issue 1, pp. 3-40.

– Maogoto, Jackson & Freeland, Steven)2007 (. “The Final Frontier: The Laws of Armed Conflict and Space Warfare”, Connecticut Journal of International Law , Vol. 23 , Issue 1, pp. 165-196.

– Morgan, Richard A.)1994 (. “Military Use of Commercial Communication Satellites: A New Look at the Outer Space Treaty and Peaceful Purposes”, Journal of Air Law and Commerce, Vol. 60, Issue 1, pp. 237-328.

– Pahlavi, Pierre & Ouellet , Eric)2012(. “Institutional Analysis and Irregular Warfare: Israel Defense Forces during the 33-Day War of 2006,” Small Wars & Insurgencies, Vol. 23, Issue 1, pp. 32-55.

– Tannenwald, Nina)2004(. “Law versus Power on the High Frontier: The Case for a Rule-Based Regime for Outer Space”, Yale Journal of International Law, Vol. 29, Issue 2, pp. 363-422.

– Watkins, Nicole J. & James, Alena M.)2016 (. “Digging Into Israel: The Sophisticated Tunneling Network of Hamas”, Journal of Strategic Security, Vol. 9, Issue 1, pp. 84-103.

C) Documents

– Human Rights Council Report)24 June 2015(. Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council Resolution S-21/1, A/HRC/29/CRP.4.

– Human Rights Watch Report)17 October 2004 (. Razing Rafah: Mass Demolitions in the Gaza Strip, Available at: https://www.hrw.org/report/2004/10/17/razing-rafah/mass-home-demolitions- gaza-strip.

– ICJ Reports)9 July 2004(. Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.

– ICJ Reports)8 July 1996(. Legality of the Threat or Use of Nuclear Weapons )Advisory Opinion(.

– International Civil Aviation Organization)ICAO(, Convention on Civil Aviation (Chicago Convention), 7 December 1944, Entry into force: 4 April 1947.

– Office of the United Nations High Commissioner for Human Rights, Statement of Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights to the Ninth Special Session of the Human Rights Council on The Grave Violations of Human Rights in the Occupied Palestinian Territory including the

recent aggression of the occupied Gaza Strip, 9 January 2009, Available at:

https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?News ID=9291&LangID =E.

– UN General Assembly Declaration)24 October 1970(. Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, A/RES/2625)XXV(.

– UN General Assembly Resolution)12 December 1973(. Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist régimes, A/RES/3103.

– UN General Assembly Resolution)14 December 1974(. Definition of Aggression, A/RES/3314.

– UN General Assembly Resolution)29 July 1980(. Question of Palestine, A/RES /ES -7/2.

– UN General Assembly, Convention on the Law of the Sea, 10 December 1982, Entry into force: 16 November 1994.

– UN General Assembly, Treaty on Principle Governing the Activities of States in The Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 27 January 1967, Entry into force: 10 October 1967.

– UN Human Rights Council Resolution)24 July 2014(. Ensuring respect for international law in the Occupied Palestinian Territory, including East Jerusalem, A/HRC/RES/S-21/1.

– United Nations Human Rights Council Report)24 June 2015(. Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council Resolution S-21/1, A/HRC/29/CRP.4.

– United Nations Human Rights Council)27 February 2009(. Human Rights situation in Palestine and other Arab territories, A/ HRC/10/NGO /101.

– United Nations Office for the Coordination of Humanitarian Affairs)OCHA()9 November 2017(. Protection of Civilians Report, Available at: https: //www. ochaopt. org/content/protection-civilians-report-24-october-6-november-2017.

D) Sites

– Ginsburg, Mitch)2014(. “Tunnel Infiltration Thwarted near Kibbutz Sufa”, Times of Israel, Retrieved from: http:// www.timesofisrael.com /tunnel -infiltration -thwarted-near-kibbutz-sufa/, Last Visit: 5/2021.

– Zeitun, Yoav)2017(. “Preparing for a Third Lebanon War: Blowing Up Hezbollah Tunnels”, Ynet, Retrieved from: http://www.ynet.co.il/articles /0,7340 ,L-4910843 ,00.html, Last Visit: 5/2021.