Terror Tunnels: An International Legal PerspectiveTuesday 31/10/2017

Perhaps the most significant feature of 2014’s Operation Protective Edge was the emergence of the terror tunnel phenomenon. Unlike Hamas’ traditional modus operandi of rocket attacks from Gaza, the tunnel phenomenon showcased the alarming ability of Hamas militants to burrow behind enemy lines into Israeli territory and launch attacks on towns and kibbutzim.

Amid reports that Israel might need to consider a threat of Hezbollah tunnels in northern Israel, we analyze the applicability of international law to these tunnels.

Given the recent emergence of the tunnels, their limited use around the world, and their ineffectiveness to state actors, international law does not specifically outline prohibitions on their use. Such is the view of Israeli international legal expert Professor Daphne Richemond-Barak, who noted ‘there is no legal literature’ on the issue and even ‘very little military theory and strategy’. Instead, we are forced to rely on relevant international humanitarian treaty and customary law.

The most obvious contravention of international law relates to the tunnels’ ability to assist in aggression against both Israeli targets and its territorial integrity. Although self-defense is guaranteed to member states of the United Nations by Article 51 of the UN Charter, Hamas’ claims of the tunnel’s ‘defensive’ nature are dubious at best. Many of the now-destroyed tunnels extended into areas of Israel without military targets, such as those with exit points close to the kibbutzim of Kerem Shalom, Holit and Nir Oz. Thus, the tunnels are understood to pose an intentional threat toward civilian targets within Israeli territory – well beyond the pretext of self-defense.

The exit points of these tunnels are not the only areas in violation of international law. The positioning of these tunnels’ entry points is also of significance, particularly as it relates to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (IV). The central theme of this treaty is the separation of civilians from military personnel to safeguard the wellbeing of non-combatants. Alarmingly, many of the tunnels’ entry points emanate from civilian areas and infrastructure such as mosques, schools and apartment blocks. This is in contravention of the following international laws:

• Article 28 of the 1949 Geneva Convention IV
• Articles 12(4) and 51(7) of the 1977 Additional Protocol 1 to the Geneva Conventions
• Article 8(2)(b)(xxiii) of the 1998 International Criminal Court Statute
• Customary International Law

Richemond-Barak also notes the significant risk posed to children in the construction of the tunnels. As argued in a Journal of Palestine Studies article of 2012, by Hamas’ own admission at least 160 individuals had died in constructing the tunnels at the time of the article’s publishing. Alarmingly, an extremely high number of these are believed to be children as they are ‘prized for their nimble bodies’.

Furthermore, the way in which these tunnels must be eliminated also makes Hamas liable for violations of international law. The aforementioned access points of the tunnels (in mosques, schools, apartment blocks etc.) inevitably means that their dismantlement will result in damage to civilian infrastructure and endanger the lives of civilians themselves. Mapping the paths and structural integrity of the tunnels is extremely difficult and rarely accurate. For those tasked with destroying the tunnels, there is a substantial element of ‘unknown’ in doing so; increasing the likelihood of unforeseen damage to Gazan civilians and their infrastructure.

Thus, in the absence of international law that deals specifically with the phenomenon of terror tunnels, one must apply existing relevant international humanitarian laws and norms to the issue. In doing so, one can establish that the use of underground terror tunnels is undeniably contrary to international law and a war crime.