6. Gaza 2018: (b) International Law and the Israel-Gaza Conflict

On 18 May 2018, the UN Human Rights Council passed a resolution calling for the Council to “investigate all alleged violations and abuses of international humanitarian law and international human rights law” in the Occupied Palestinian Territory and particularly the occupied Gaza Strip, since 30 March. That was the official date when demonstrations under the banner of the “Great March of Return” along the border of Gaza with Israel began.

Is there an international law that obligates countries, that is, independent nation-states, to permit refugees to return from the land from which they fled or were expelled? This is a key question. For it determines what the rights of the protesters are as well as the nature of the current conflict on the Gazan border. This does not mean that other alleged violations of international law and international human rights law did or did not occur. But until the latter issues are contextualized under the claim of an international right of return, it is difficult to really grasp the nature of the conflict let alone determine what if any international humanitarian or human rights laws were abused.

The demonstrations supported and organized behind the scenes by Hamas were called the “Great March of Return” for a reason. Further, the committee organizing the mass demonstrations along the Gaza-Israeli border called for “peaceful,” not militant, demonstrations, and did not call for efforts to return by either force or the mass of numbers, but to “visit” the area adjacent to the Israeli security fence. Even Hamas, a key organization behind the protests, called on Palestinians to remain “peaceful” even if militancy was indirectly strongly supported.

Indeed, the vast majority of demonstrators could be located 500-700 metres from the fence. There is no evidence that any of these demonstrators were killed or injured. However, most international reports, and, indeed, Israeli ones, conflated the two types of demonstrations even though, upon initial examination, this would seem to undermine Israeli efforts to win the war for international public opinion. Why would Israel do that?

One reason is that Hamas, unlike Gandhi’s marches in India, did not rule out the use of force. Quite the reverse. Hamas insisted that its members would not hesitate to use force if Israel used force to disperse the demonstrators. With one aberrant exception, I could find no evidence that Israel used force to disperse the demonstrators who stayed away from the fence. Instead, Israel threatened to take severe measures against Palestinians who tried to damage the security fence or, even worse, force their way into Israel.

Hamas, which controls Gaza, celebrated the demonstrations in advance for the “sacrifices for the sake of adhering to their rights, maintaining their identity, sticking to their land, resisting all attempts to wipe them out, and rejecting all forms of normalization.” If a peaceful demonstration was planned that did not challenge the Israeli security fence, why would there be any sacrifices? Hamas made clear that the demonstrations were about the “right of return,” about the refusal to surrender their claim to land in Israel or even to the land of Israel in general. Their identity was as intricately tied to the land as the Zionist program of return over the twentieth century. Further, Israel’s efforts to deny such rights were equated with genocide and with the attempt to eradicate the culture and identity of a people. To that end, there could be no normalization between a Palestinian entity in Gaza and Israel since the very creation and continued existence of Israel was itself considered the genocidal act.

In the words of Hamas, Land Day (March 30th) “is a source of inspiration that reminds Palestinians of the right of return” and “will remain an occasion of sacrifice for the sake of restoring Palestine.” The tents set up 500-700 meters from the border were called the “Tents of Return.” The violence was not simply the result of the efforts of a small portion of the demonstrators attacking the security fence, but of the context which defined the right of return as an either/or choice – either Palestine or Israel but not both.

If Palestinians believe in and want to operationalize a “right of return,” it cannot be accomplished except by war. As Elazar Barkan and I demonstrated in our book, No Return, No Refuge – Rites and Rights in Minority Repatriation,” (Columbia University Press, 2011) there has not been one case of significant return of a minority driven out or which fled except behind an army. The Tutsi return to Rwanda between 1990 and 1994 was only made possible through war. This was also true of the Kosovars. In other words, not only Hamas, but the Palestinian Authority that supported the demonstrations, were holding onto the principle of a “right of return.” This is not a right written into international law and was not even part of the UN armistice agreement of 1949.

The source cited as promulgating the “right of return” is most often the section of the 1949 UN Resolution 194 dealing with refugees. That section resolved that “the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to the property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.”

Resolution 194, as stated above, widely cited as the basis of a right to return, never declares that it is a right. In fact, even among Palestinians, the passage was only interpreted as a right in later UN resolutions of the late 1960s and ’70s. In 1949, it was stated as a moral recommendation. In effect, Israel “should” consent to return and to providing compensation to those who decided not to return. From 1949-1967, few self-respecting Palestinians would make a request to Israel to allow their return for that would de facto accept Israel as a nation-state with the authority to make such a decision.

However, in the aftermath of 1967 and the Six Day War, Rashid Khalidi reformulated the right to return from a right to individual Palestinians to move back to their individual homes or, alternatively, claim compensation, to the right to return to a Palestinian homeland. It became a general claim of a right to self-determination for the Palestinian people.

During the Oslo negotiations between 1993 and 2001, the multilateral talks on water went well. The discussions on security and the recognition of Palestinians having an independent state also were successful. There was even a tentative but never completely resolved agreement to an exchange of territories, land for peace. However, there was no agreement reached on Jerusalem. Further, what some of us expected to be the toughest issue of all, the discussion of the right of return of the refugees, in fact did achieve a breakthrough, even though ratification depended upon agreement on all other issues. That deal took Khalidi’s revision of the right of return another step by defining it as a return to the anticipated Palestinian state with compensation paid for lost properties in the territory governed by Israel. As a quid pro quo of these agreements, the Palestinians recognized Israel’s right to exist and renounced the use of violence and terrorism.

When the Palestinian Papers were leaked by Al-Jazeera on the years of peace negotiations revealing that the Palestinian negotiators were willing to surrender the demand for a right of return in exchange for recognition of an independent Palestinian state, the revelation was greeted by widespread shock and outrage that this centrepiece of Palestinian identity had been surrendered. Omar Barghouti, in an 11 September 2017 article, “Virtual Statehood and the Right of Return,” argued that, “Palestinian officials who have time and again colluded in eroding official international support for UNGA 194, as the Palestine Papers have amply shown.”

Barghouti was outraged that the core meaning that had emerged on Resolution 194 had been traded away simply for the recognition of the right of Palestinians to have a state of their own. He claimed that surrendering the “right of return” in Resolution 194 “is entirely divorced from the will of the Palestinian people, and those advocating it have no democratic mandate from the people to employ it in any way that jeopardises our UN-sanctioned rights.”

The demand for a “right of return” is a defining element of the Palestinian political movement and has, as Hamas and Barghouti noted, become central to the question of Palestinian identity. A large minority had accepted that proposition during the Oslo discussions and, therefore, had resisted those negotiations. However, since the collapse of Oslo, the issue has indeed become a defining element for possibly a majority of Palestinians, not just members of Hamas, and in an inverted proportion to the possibility of its realization.

However, the implication of retaining such a “right” entails perpetual war against Israel. The proposition poses a Hobson’s choice. Either there is a Palestinian state to displace Israel or there is no deal. Though Israelis may not like reading this, it is an understandable position. For if one insists on return, return to the original homeland as one’s own, such a goal can only be advanced through war and not through a peace agreement.

Therefore, the “peaceful demonstrations” of the Palestinians on Land Day on 30 March meant only war by other means. The demand for return is a political slogan, not a pragmatic outcome of peace negotiations. The slogan, simple and easy to repeat, reinforces an identity and the Palestinian claim to be the aggrieved party. It is not intended to advance the possibility of some return for some who lost their homes in 1948. Nor is it any longer a call for a return to a newly established Palestinian state alongside Israel. The slogan is now used to emphasize one’s bona fide status as a spokesperson for Palestinian nationalism and continuing rather than resolving the conflict with Israel.

In sum, the demonstrations planned for Land Day on 30 March were parts of the propaganda war in the battle between Israel and a major stream of the Palestinian movement in the effort to continue rather than end the conflict. The three previous wars in Gaza over the two decades of the twenty-first century resulted in widespread property destruction as well as a huge loss of life. “Peaceful” demonstrations along the security fence might result in some casualties – but nowhere near the number resulting from open general war. Further, international sympathy for the Palestinian cause would be enhanced through actions immersed in a Gandhian framework, even if not exhibiting Gandhian tenets.

In sum, the right of return was not part of the original meaning of Resolution 194. It became part of the meaning in the late sixties and seventies. It then morphed to mean a right of return to one’s own homeland as well as a return to one’s lost properties. Finally, it has become the slogan for a return of Palestine as the homeland for the Palestinian people and the elimination of Israel. The Great March of Return demands a Palestinian right to return to a pre-1948 homeland in historic Palestine.

It is in this context that breaches of international humanitarian law and human rights law must be examined as well as examining the details on the conduct of the war by either side.

 

With the help of Alex Zisman

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6. Gaza 2018: (a)International Norms and the Gaza Conflict

From the previous analyses, what seems clear is that there were peaceful demonstrations as well as relatively small militant actions from the Palestinian side, although near the end of May the war escalated. In response to Israel killing three Islamic Jihad members in an observation tower watching a Palestinian trying to plant a bomb near the fence, the jihadists fired a total of 51 mortars in two volleys into Israel. One mortar got through the Iron Dome Defence to damage a kindergarten but no lives were lost. In return for the mortar fire, Israel resumed its bombing of Gaza positions.

Though these were unequivocally military actions, even in the Great March of Return, the vast majority of those killed or wounded by the IDF were not peaceful protesters. They were militants who tried to cut the barbed wire, destroy Israeli equipment and even breach the fence. Many were armed and many more attacked Israeli troops with fiery Molotov cocktails.

What happened on the Gaza border in the six weeks from 20 March until mid-May was a militant attack on the border against the background of large peaceful demonstrations, but none, not even the one on Nakba Day, was as large as projected by either side. Perhaps the leaflets dropped by Israeli aircraft warning that live fire would be used against those who came near the fence deterred many from showing up at the peaceful demonstrations. From the number of militants that participated, clearly militants were also deterred. But not entirely. Gaza militants continued their fiery kite attacks and resumed shelling Israel. Israel resorted to the use of airstrikes on command centres of the jihadists, not against the demonstrators or even the militants attacking the fence, but against military sites where Israel claimed mortar and machine gun fire had been used. Eventually, Egypt brokered a ceasefire.

This had been a war both in terms of the announced intent of the Palestinians, the militant attacks on the Israeli border and the IDF response. The applicable international law includes the rules governing just war. Israel was accused of using disproportionate force in repelling the militants, mainly because only 1 Israeli soldier was injured while 113 Palestinians were killed and many more injured. Many op-eds and statements went further and accused Israel of using lethal force to kill “unarmed protesters” since most of those killed were not carrying rifles.

The dispute was not focused on whether either side could be faulted under jus ad bellumrules, those governing the decision to go to war, as much as most countries might have disagreed with the Palestinian initiative in allowing militants as well as peaceful protesters to challenge the border. Given the political aims of either side, each side in its own eyes had legitimate reasons for resorting to militance.

For those of the persuasion that refugee return was a crucial goal for Palestinians, the means used in the militant attacks on the fence against a background of a peaceful demonstration seem to be justified by the principle of right intentions since, if refugee return is considered a legitimate political goal, then only military means seems able to achieve such a goal. The Palestinian effort, as far as Hamas is concerned, passes the test of a last resort. There is almost no likelihood of Israel agreeing to go out of existence. Neither Israel nor the Palestinians were fighting a war of aggression, that is a war extraneous to their own self-defence as a nation. And the only way the war can be fought to correct the alleged wrong done to them by the Zionists is a war to end the state of Israel and, by Israel, to defend the Jewish state, a war of self-defence.

The one criterion where the initiation of the war in 2018 by the Palestinians in Gaza might be considered as contravening the jus ad bellum rule is the one contending that war should only be resorted to if there is a high probability of success. Clearly the Palestinians had almost no chance of winning the war on the ground. However, wars these days are fought as much if not more on media as public theatre to win hearts and minds over to one’s cause. And given the results, Hamas can be recognized for winning on that battlefield.

Dialogue is not an alternative to war for either side since the aims of each party are absolutely incompatible. Dialogue might lead to limited truces but it is highly unlikely to end the resort to warfare if the aims of each side remain in place. Similarly, Israel does not engage in all out warfare against the Palestinians in Gaza because its aim is not victory over Hamas let alone the Palestinians, but the prevention of physical harm to Israeli territory and personnel.

However, most of the controversy is over the application of jus in bello rules, those governing the conduct of war. Many commentators questioned the proportionality of the Israeli response to the demonstrations and even the militant attacks on the border fence. Israel defended itself and insisted that, without the use of sufficient force at the security fence, thousands, even tens of thousands, would have poured through the breach and the result would have been both many Israeli casualties and many more Palestinian ones than the 100+ that were killed over the 6-7 weeks.

The issue of proportionality is not about the absolute numbers killed, though the criticisms have largely been based on that. The rule of proportionality demands that civilians not be killed as collateral damage in setting violence against violence. The exact proportion of civilians allowed to be killed without infringing just war norms as a ratio to militants has never been defined and, in any case, is very context dependent. On the surface, if about 80% of those killed were militants, this would appear to fall well within the range and proportions permitted under just war theory.

But though those killed may have been militants, many of them killed were not armed. In that case, should they be classified as civilians? Israel argues that their actions and intentions made them legitimate targets. Many humanitarian and human rights organizations claimed that intentionally killing unarmed persons on the other side of a conflict is a war crime. If the Jewish maid in the movie Exception had actually managed to kill Himmler, would she have been persecuted for a war crime? One would hope not.

The issue is not whether the militants were carrying arms at the time they were killed, but whether they were actively involved in a violent struggle with the opposition. Did each side take precautions to minimize the chances of innocent civilians being killed? Note that Palestinian demonstrators peacefully demonstrating, even if for a war aim, were innocent civilians. They become legitimate targets only if they are engaged in the violent struggle against the opposed forces. Trying to cut a border fence with armed militants behind you ready to plunge through that fence is normally considered part of an armed conflict.

Others accuse the Israelis of committing war crimes because of the type of force used, in this case, live ammunition that killed unarmed militants and some civilians, and tear gas that made many Palestinian peaceful demonstrators sick because the prevailing winds tended to blow the gas over the tent camps. Further, those who accuse Israel of war crimes insist Israel did not sufficiently explore alternatives to the use of live ammunition. After all, every Palestinian killed died on the Palestinian side of the fence. The fence was breached by very few. Israel was accused of breaking the norm of “last resort” in the way it resisted the Palestinian attacks on the fence. Domestic police use tear gas to disperse peaceful demonstrators.

In the context, however, the use of tear gas was imprecise. Also, gas drifted onto peaceful protesters. There was relatively little use of rubber bullets because of the range required. To control rioters, the “skunk” trucks used in the West Bank that spout foul-smelling water known as “skunk” that Israel regularly uses were also not employed because they too lacked the range. Besides, those trucks were not armored.

However, Israel unsuccessfully tried to use water cannons in the first stages of this conflict, but that did not seem to work very well. Using remote model aircraft with knives to cut down burning kites or balloons with Molotov cocktails is certainly permissible as is the use of those kites and balloons as part of warfare by the Palestinians. But when they are aimed at civilians and civilian properties? So too were the use of AK-47s and grenades a legitimate use of arms in the war between Israel and Hamas-led Palestinians. Israel claims that it used just enough force to ensure there was no breakthrough otherwise the casualties would have been much higher. If that anticipation was reasonable, then, arguably, both the wire cutters and the armed Palestinians did “pose an imminent danger to the lives of others.”

The one war crime that Palestinians are repeatedly accused of by defenders of Israel is of using human shields behind which the militants attack the Israeli forces. Alan Dershowitz calls this “the dead baby strategy.” (“Why Does the Media Keep Encouraging Hamas Violence?” 17 May 2018)

However, contrary to his assertion, and with no presentation of evidence, the accusation of Palestinians using human shields in the Gaza 2018 conflict seems misplaced, at least in this conflict. It is a false claim made by Israel and by Israeli defenders in the diaspora. First, there were very few cases of Palestinians being able to attack Israeli troops. Further, though there may have been the odd case of a possible use of a human shield, such as when a seven-year-old neared the fence (she, fortunately, was not shot), but no evidence has been provided that she was deliberately sent to approach the fence to serve as a shield for militants following behind her. In general, there does not seem to be a prima facie case that the Palestinians employed human shields during the 2018 conflict.

International and state leaders had urged restraint on both sides with most of the advice aimed at Israel. I too may believe that more restraint might have been attempted, but advocating less restraint does not make the use of less restraint in itself a war crime. The issue is whether a state or a belligerent is exceedingly unrestrained in its approach to dealing with the threat. Given Israeli warnings beforehand through dropped leaflets, given Israel’s unequivocal warnings about its red lines for the employment of the use of force and given the relatively low numbers killed in a battle that went on for 6-7 weeks, even though lethal force was used, far more by the Israelis than the Palestinians, for neither side does there seem to be much evidence that either belligerent used lethal means outlawed by the laws of war. Disagreements over the degree of force used and the rationale for it does not in itself mean that a war crime was committed.

There are recent clear and unequivocal incidents of war crimes committed by states such as in the American Vietnam War, the Soviet War in Afghanistan, the actions of the Serbs in the war in the former Yugoslavia, the use of banned chemical weapons by Syrian forces against its own people and certainly by the Islamicist terrorists who deliberately target civilians. However, there is no situation or actions committed by either side as a pattern in the 2018 Gaza conflict that seems to merit a general charge, though there may be individual cases justifying such a charge. Further, since in both cases the actions were considered as efforts at self-defence by both parties of their interests and war aims, the actions of neither the Palestinians nor the Israelis even came close to a breach of international law as when Trump ordered a militant response to the gas attacks of the Syrians without the authority of the Security Council. Sometimes breaches of international humanitarian law are defended on the basis of higher humanitarian principles.

Back to the issue of restraint. Just war norms demand that, given the military objectives, only sufficient force should be used to accomplish the military goals. Some commentators misconstrue this as requiring that minimum force be used to prevail, but that is not accurate. The word is “sufficient” not “minimum.” And interpretations by military strategists legitimately vary over what sufficient force is required. For the use of less force may be sufficient to prevail, but it may, on the other hand, have a much greater risk of higher casualties, particularly on one’s own side. There is no objective standard for defining restraint but only the guideline for commanders in the field who must weigh risk against the probability of success. This does not open the door to savage and unrestrained use of violence. Such situations demand careful judgement in the use of the tools of violence and the extent they are employed.

In sum, I may adamantly disagree with the goals of Hamas. Co-founder Mohamoud al-Zahar described the tactics accurately: “This is peaceful resistance bolstered by a military force and by security agencies.” The words were carefully chosen. Bolstered in this case meant using militants in a separate operation to attack the fence but the main effort was a large peaceful demonstration. Neither the peace cover nor the militant attacks attracted as many participants as planned and expected.

I also may adamantly criticize Netanyahu and the Israeli government for the tactics they employed to combat Hamas and the jihadists, but there seems little if any justification for a general prima facie case of commission of war crimes against Israel. This is true with respect to either side, certainly with respect to the justifications for recourse to war given the objectives of each side or the observation of moral boundaries within which each side operated.

One side or the other may have come too close to those boundaries of norms for my sensitivities in the conduct of the war, but neither breached those boundaries in general. The casualties, however distasteful, however upsetting, do not seem to be intentionally evil and outside the international moral code on the conduct of war, though some individual incidents require further investigation. The military means used by Israel may have been incommensurate for my tastes (and my proneness as a peacenik), but they do not seem to have been incommensurate with the threat faced given the risks of a reliance on the use of less force. Israel was not intentionally targeting civilians in general. Gazans were not resorting to their older tactics of using Katyusha rockets against civilian targets. Though Israel may have lost the media war, and lost it by a wide margin, the country may have pushed Hamas into finally adopting a peace strategy.

Time may tell.

 

With the help of Alex Zisman

5. Gaza 2018: The Wars over Human Rights

The Palestinian flotilla to break the blockade has been stopped by the Israeli navy. The air battle in Gaza has taken a more serious turn as, following a large missile barrage on Israel from Gaza, aircraft bombed central Gaza in reprisal. In my previous blogs in this series, I have depicted two very different wars in Gaza in 2018, the public relations war and the militant war on the ground, in the air and possibly at sea. In the public relations war, the centrepiece has human rights and it still remains the most important war.

This is in spite of the fact that Hamas and even more radical groups:

  • Try, and even sometimes succeed, in sending armed infiltrators into Israel
  • Try to kidnap Israeli soldiers
  • Engage in arson attacks against Israel with fiery kites and Molotov cocktails attached to the tails of kites
  • Send missiles against Israel

These actions often targeting civilians and civilian property overlap with the debate over human rights.

There are two very different wars over human rights. The second war is the war over the protection of civilians caught up in the recent wars between Gaza and Israel. The first is the competition between the Palestinians and the Israelis over who can be the worst human rights abuser in their respective territories. Sometimes, the two are linked. In that latter rivalry, the Palestinians win hands down but that should be no solace for Israel which has recently been moving in the direction of a human rights abuser.

For example, Jafar Farah, Director of the government-funded Haifa Mossawa Center that advocates on behalf of Palestinian Arab citizens in Israel, was arrested at a protest rally and claimed that his leg had been intentionally broken by a police officer. This is in Haifa, the so-called “capital of coexistence.” More recently, 19 Israeli Palestinian protesters were arrested on 18 May in Haifa after the police dispersed a demonstration protesting the killings in Gaza. The incident turned into a public relations and legal victory for the Palestinian Israelis. Hassan Jabareen, Adalah’s general director and head of the protesters’ legal team, stated, “We succeeded to turn the courtroom from a space used against protesters into a space where police violence was exposed and rejected…due to social media, due to all of the videos, photos and testimonies that were posted by the people that told the true story of what happened on Friday night.”

In comparison, in 2014, a Gazan boy had his kneecaps shot off in public for posting an anti-Hamas comment on Facebook.

Following a request by Palestine and the Arab Group of States, on 18 May 2018, a special session of the UN Human Rights Council was held which ended with a resolution by Member States to investigate weeks of violence on the Israeli border with Gaza calling for the Council to “investigate all alleged violations and abuses of international humanitarian law and international human rights law” in the Occupied Palestinian Territory and particularly the occupied Gaza Strip, since 30 March, the date when demonstrations along the border with Israel began, dubbed the Great March of Return. The resolution was adopted by 29 votes in favour, with two (Australia and the U.S.) against and 14 abstentions.

Britain, along with four other EU countries, abstained. Alistair Burt, the Minister for the Middle East, explained the vote in the British House of Commons as follows:

We abstained on calls for a commission of inquiry into recent violence in Gaza during the UN Human Rights Council session on Friday. The substance of the resolution was not impartial and it was unbalanced. We could not support an investigation that refused to explicitly examine the action of non-state actors such as Hamas. An investigation of that kind would not provide us with a comprehensive assessment of accountability. It would risk hardening positions on both sides and move us further away from a just and lasting resolution to the Israeli-Palestinian conflict.

However, the United Kingdom continues to fully support the need for an independent and transparent investigation into recent events. We call directly on Israel to carry out a transparent inquiry into the Israeli Defence Forces’ conduct at the border fence and to demonstrate how this will achieve a sufficient level of independence. We believe this investigation should include international members. We urge that the findings of such an investigation be made public, and, if wrongdoing is found, that those responsible are held to account. The Foreign Secretary stressed the importance of Israel conducting an independent investigation when he spoke to Prime Minister Netanyahu on 16 May.

On the face, the UNHRC resolution is odd. First, Palestine seems to be regarded as a state. On the other hand, not only the West Bank, but Gaza is referred to as occupied territory. Second, one would never know from the resolution that combatants were involved on the Gazan side. The reference is only to demonstrators even though the mandate is to investigate the violence and “all alleged violations and abuses of international humanitarian law and international human rights law.” Third, the head of the UNHRC had all along denounced Israel’s use of excessive force and said nothing about militance on the Gaza side.

The most relevant international law usually cited in reference to international conflicts and conflicts in occupied territories is the Geneva Convention relative to the Protection of Civilian Persons in Time of War (GCIV), commonly referred to as the Fourth Geneva Convention. Adopted in 1949 and declared universally applicable in 1993 as customary law, the Fourth Geneva Convention, unlike the first three, deals with the humanitarian protection of civilians in war zones. Most of its clauses (27-141) deal with the status of “protected persons” that are irrelevant to this analysis. The most important relevant clauses are 1 and 4.

Civilians deserving protection are not simply passive onlookers. They may be protesters as they were in the camps behind the berms 300 metres from the Gaza-Israel border. However, as in the 1975 Moroccan government “green march” across the border into the Spanish colony of Western Sahara, a distinction was made between civilians and military that crossed the border. Civilians may engage in civil disobedience and ignore the injunctions of a military force. When such a group comes into conflict with an opposing military force, depending on the circumstances, they may be considered combatants. By definition then, they are not civilians. In the case of the conflict at the Gaza-Israeli border, the overwhelming majority of Palestinian demonstrators were without a doubt civilians. The question is whether those who tried to reach and breach the fence were.

Some of them were armed only with wire cutters. However, if they were not members or quasi members of any military or police force, they were still civilians. This may or may not be true of the 14-year-old girl who was killed while trying to cut through the fence with her wire cutters. On the other hand, the medic who treated Dr. Loubani when he was shot in the legs and himself was killed by an Israeli sniper even though wearing a medical jacket, was most likely a non-civilian since Musa Abuhassanin, aka Musa Jabr Abu Hasanin, was a known Hamas militant. In any case, it seems that about 80% of those killed were militants so the questions concerning the others killed requires an assessment under the Fourth Geneva Convention.

Note the definition is of civilians, not unarmed non-combatants. (Imams may be unarmed, but if they belong to a military organization, though non-combatants, they are not civilians who enjoy protection under the Fourth Geneva Convention.) A civilian is, “a person who is not a member of the military, police or firefighting force.”

On 31 March 2018, Amnesty International denounced Israel’s “violent suppression” of unarmed Land Day protests, stating: “Having consistently ignored the human rights of Palestinian refugees for 70 years, Israel must at least hear their demands and allow peaceful demonstrations and protests to take place.” But Israel did. The camps 500-700 metres from the fence were not normally attacked, though on some days tear gas drifted into them because of the prevailing winds. One tear gas attack directly on a demonstration seemed to be an aberration. The peaceful demonstrations continued every day over a six-week period. Live ammunition was overwhelmingly used against those who tried to breach the fence and some stone throwers and fiery kite fliers.

Yet Amnesty called for “independent and effective investigations to be launched immediately into reports that Israeli soldiers have unlawfully used firearms against unarmed protesters.” Did Israel or did it not? It may have in some cases. My review of the evidence indicates that Israel generally did not use live ammunition against those defined as civilians.  The problem is that Amnesty International first makes the judgement and then calls for an inquiry into what it claims are facts.

Unfortunately, to some degree, Prime Minister Justin Trudeau did the same thing. Prior to Prime Minister Justin Trudeau’s statement criticizing Israel for its use of excessive force, proponents of the Palestinian cause had claimed that Canada flouted the Fourth Geneva Convention under Article 1 by not ensuring respect for the Convention because Canada allegedly failed to take any concrete action opposing Israel’s violations of the Fourth Geneva Convention.

There has been no equivalent international support for Shurat HaDin’s request that the Prosecutor of the International Criminal Court investigate the Hamas leadership and, in particular, the deliberate targeting of Israeli civilian farms and towns. Further, very little criticism from the international media is leveled against organizations like the Palestinian Center for Human Rights (PCHR) which in the same paragraphs claims Israel uses excessive force against Palestinian peaceful demonstrators while it depicts Palestinians “swarming” to the border to break through the border fence.

The response to the Great March of Return is depicted as “suppression” by Israel and unsubstantiated claims are repeatedly made that Israeli IDF forces deliberately target peaceful demonstrators. The proof: the number of casualties characterized as “unjustified” and the result of the deliberate targeting of civilians. The demonstrations are repeatedly referred to as “fully peaceful” and Israeli responses as “fallacious incitement.”

PCHR reiterated its call “upon the High Contracting Parties to the 1949 Fourth Geneva Convention to fulfill their obligations under Article 1; i.e., to respect and ensure respect for the Convention in all circumstances and their obligations under Article 146 to prosecute persons alleged to commit grave breaches of the Fourth Geneva Convention.” To understand the core of the external human rights conflict we will move in the next blog to the analysis of the Fourth Geneva Convention.

With the help of Alex Zisman

4. Gaza 2018: The Political Effects

The vast majority of Palestinians in Gaza decided to stay home. Even at the peak, less than 2% of Gazans participated in the war, either as background peaceful demonstrators, back-up harassers or frontline militants. Of those who participated, the vast majority were peaceful protesters. Only 0.1% participated in the front lines, a paltry number given the number of sworn militants in Gaza. And this is in spite of the claims that Hamas paid $14 each to protesters, $100 to families with children and $500 to those injured when they attempted to breach the fence.

As indicated in the two previous blogs, the vast majority of pictures of the demonstration were of the militants hurling stones, burning tires. There are very few pictures of the many more Palestinians who peacefully participated in the demonstration largely in Friday prayers. Instead, almost every picture gallery depicted a disabled protester who had been wheeled towards the Israeli border in the Shuja’iyya neighborhood of Gaza City to enable him to hurl rocks either portrayed from his wheel chair or on the ground. Yet, in spite of this gross pictorial distortion, most references in print that I read were of “peaceful demonstrations.”

Though all of these circumstances reveal the inability of Hamas any longer to arouse the passions of Gazans to make sacrifices, these proportions did help fulfill the cover that the actions were simply peaceful demonstrations. And look at the relatively low cost compared to the three previous wars. In spite of the widespread hysteria about excessive numbers, in over six weeks of conflict only 104-110 died as martyrs, though at least a few of these were innocent civilians. These numbers are small in any international comparison – to Syria, to Turkey’s war on the Kurds, to Afghanistan, to the Rohingya when they were ethnically cleansed from Myanmar, and even within Mexico. In 2017, 25,339 Mexicans were murdered, an average of 487 a week or 5,847 over a six-week period.

Count the number of school children killed in attacks in the United States over the last six weeks. There were 29 mass shootings and 17 other shootings in schools in the United States even before the Parkland Florida massacre at Marjory Stoneman High School on 14 February 2018, bringing the total number of attacks by Valentine’s Day in 2018 to 18, or 3 per week.  In Santa Fe Texas on 20 May 2018, 10 were murdered and this was only the fourth deadliest attack this year. Thus my contention: relatively speaking, especially in the context of war, 110 deaths over six weeks does not seem excessive at all, contrary to the widespread report that the number of casualties were disproportionate. The real issue is whether non-militants were targeted and even just wounded.

The Palestinian leadership made a sincere effort to be honest about the numbers killed as they walked a tightrope between the task of establishing that unwarranted numbers were killed and injured while not enough were martyred to demonstrate a Hamas indifference to Palestinian lives. On the other hand, too many false reports also emerged, such as the one that Israelis killed an 8-month baby with tear gas (the baby died from a pre-existing heart condition).

With the huge gap between the actual numbers killed and maimed compared to other conflict and non-conflict situations, the response to the violence in Gaza seems hysterical. But that was the point of holding a largely peaceful demonstration while small numbers fought in a war as willing martyrs.

There were other successes on the international and domestic stages for Hamas. The distinction between a policy recognizing Jerusalem as the capital and recognizing a united Jerusalem as the capital remained suppressed. The two main emotional issues for the Palestinians were linked – the insistence on Jerusalem as their capital and the return of refugees. The language was bathed in rights rather than on their suffering. The focus was placed on the complicity of the international community in rewarding Israel in untold ways, including allowing an Israeli entertainer, Netta Barzilai, to win the Eurovision Song Contest in Lisbon that was also being celebrated in Tel Aviv at the same time as the final Nakba Day demonstrations. After all, even Australian Jessica Mauboy, the runner up, acknowledged Barzilai’s enormous power as an entertainer.

That is why Barghouti wrote and published the following:

“On one side there is an occupying power that is incessantly rewarded by the international community, even as the Palestinians are being pushed ever further out of their lands. Those who remain live under the harshest conditions: The denial of a right to live in dignity and freedom. In this age of media and social platforms, there is no excuse to not see what is happening. As such, remaining complicit is a conscious and active decision to side with oppression and directly be a part of it.”

Simply put, the international community is either for us (as Palestinians) or against us in remaining silent and supporting Israel. In the latter case, the international community was complicit in the loss of further Palestinian lands and the terrible conditions under which Gazans lived. Hamas responsibility for those conditions was ignored. The goal of return, so pronounced in the purpose of the demonstrations, was bracketed. The focus was on Palestinians as victims and Israelis as malevolent oppressors.

However, the bottom line among Palestinians, including those in Gaza, was an increased despondency. The vision of return has become a forlorn hope. Even the dream of an independent Palestinian state seems to be receding. That is not only because of the militancy and incompetence of Hamas, but Mahmoud Abbas, now in the twilight of his leadership, did not help with his antisemitic outburst weeks earlier. The international political situation in the Middle East does not help the Palestinians either. Iranian support is feckless. The Turkish economy is imploding. Qatar has its own problems in the Gulf. The Saudis and Egyptians support the Palestinian political goals only nominally as they forge stronger economic, military, intelligence and backroom diplomatic ties with Israel.

When return was mentioned, it was linked simply with the desire to stand up in dignity and not be punished for being displaced. Freedom was contrasted with repression and repression was linked with a long history of colonization. Jews settling in Palestine were but the latest phase of that colonizing effort. Palestinians simply had fought a century-old defensive war. But the international community condemned that defence and rewarded the Zionists.

“Our minds are turned into a space for psychological warfare to implant an image of inferiority into our core, to convince us that we are the lesser ones, destined to be either controlled or kicked out. Our bodies are objects—shot at, beaten, humiliated, assaulted, violated. Our ideas and dreams of liberation are swept into a corner because if we so much as dare to speak loudly and mobilize, we will find ourselves incarcerated or killed. Palestinians are wedged between a painful exile and a butchered land. This is the definition of ethnic cleansing.”

This war was being fought in a way to contrast Israeli strength, inhumanity and oppression with the valiant efforts at improvement of victims under unspeakable conditions. “Palestinians are brave enough to love life so much that they are willing to go out to the streets and protest, and when they are not protesting they are fighting in their daily life by merely echoing the word ‘Palestine’.”

Hamas may have won a short-term public relations victory in the 2018 Gaza conflict, but prospects are even dimmer now of Israel entering into a truce with Hamas. Nor is Israel likely to lift the blockade as readily as Egypt did. Israel will demand deep concessions. The Europeans may make some noise and others may bewail Israel’s use of “excessive” and disproportionate force, but the situation would almost undoubtedly have been worse, both from a public relations standpoint and in actual casualties, if Israel had not been firm in its red lines. Further, look at the political effects of Obama’s failure to stand up to Syria on his red line and the effective impotence of the pitiful one-off responses of Donald Trump to the use of chemical weapons by the Syrians. On the other hand, it would be helpful if Israel at least had the appearance of a positive response to the Gaza martyrdom of its own people.

Red lines have to mean consequences, and heavy consequences, if they are crossed. Indifference to the plight of the Palestinians, however, is not a policy. Israel must repeatedly and loudly offer Gazans rewards if the surrender their objectives of returning to Israel with the aim of Israel’s destruction even if one understands why Israeli leaders might tire of making such offers in a context that seems fruitless.

 

With the help of Alex Zisman

3. Gaza 2108 – (b) The Air War: Tactics and Casualties

Though after Nakba Day on 15 May, attacks against Israel have continued, they were largely not attempts to breach the fence and kill Israelis; their aim was property destruction. Following the Palestinian relative success with kite fires during the six weeks of direct combat from the time the first flaming kite landed on Kibbutz Nahal Oz on 13 April starting a fire there, Gazans increased and improved their use of white fiery kites with fluffy tails and possibly Molotov cocktails attached to send into Israeli territory. They were intended to set fire to Israeli fields.

One set fire to 70% of the natural habitat and green landscape of the Be’eri Crater Reserve adjacent to the Gaza border located between Kibbutz Alumim and Kibbutz Be’eri a once blooming landscape that served as a nature reserve for wildlife and an outstanding example of making the desert bloom turning most of the reserve into a black biomass with much of the wildlife and the green vegetation speckled with roses destroyed from the “Kite Terror”.

Drones with knives were developed by the Israelis to cut the kite strings. That method destroyed 40 burning or Molotov kites before they reached Israel. A more recent innovation has been the mobilization of drone-racers to send drones, especially Pegasus 120s, to ram the fiery kites. For border communities, the kite war was real terror.

Israel also used kites, but not to land in Gaza. Nor were they burning. Nor did they have Molotov cocktails attached. They were flown very high on 12 May in a demonstration in Sderot in Israel just north of the Gaza border. At the demonstration, MK Miki Zohar (Likud) and Minister of Agriculture Uri Ariel (Bayit Hayehudi) gave speeches. Families had picnics. The shofar was sounded loud enough for Gazans to hear. The demonstration was held to let Gazans know that Israelis had not forgotten that Hamas still held the bodies of two dead Israeli soldiers who had been killed during a previous ceasefire; the bodies have been hidden somewhere in Gaza since 2014. Hamas refused to release the bodies of Hadar Goldin and Oron Shaul.

Since the incendiary kite war started on 13 April, over 300 fiery kites were sent into Israel. At least 100 fires were started in the Kissufim and Be’eri forests, Kibbutzim Nir Oz, Kerem Shalom, Sufa, Kfar Aza, Sa’ad, Mefalsim, Erez, and Gevim. In spite of the drone counterattack, enough kites got through to land on farmers’ fields and start fires causing millions of shekels in damage, for example, destroying 3,000 acres of wheat.

On 25 and 26 May, six fires were started in Israel using the latest most successful methods causing severe damage to Israeli farmers’ crops. The Israeli Agriculture Minister, Uri Ariel, called for maiming rather than killing those who were preparing or who sent fiery kites into Israel even if they were more than 300 metres from the fence. Shoot them in the legs or knees, he advised.

“We are human beings and they are human beings and we do not shoot in order to kill. I think that in order to deter it is enough to shoot at the legs; it has not yet been tried.” On the contrary, I believe that this response was tried, perhaps not systematically. During the six weeks of the 2018 Gaza War, many Palestinians flew burning kites that landed on Israeli soil and damaged property.

During the six weeks of war, other Palestinians came close enough to the fence to throw stones and sometimes cut the fence. But the vast majority of Gazans who participated over the six weeks stayed largely under cover or behind rises in the land and were more than 300 metres from the fence. However, some young Gazans, overwhelmingly men, under cover of smoke from the burning tires, did approach the fence. Many tried to cut through the fence. Some threw Molotov cocktails and stones. However, unlike the fiery kite fliers, these had to enter the 300 metre no-go zone.

Though the clash was not primarily over the right of Palestinians to demonstrate peacefully or even to use symbolic gestures to indicate their defiance, but over attempts to damage and possibly breach the fence, at one-point, airborne troops landed among demonstrators to attempt to disperse them with tear gas. This tactic appeared to be an aberration. At another point in the early evening of 30 March, tanks and jets bombed Hamas sites in response to live fire. Later, other aerial attacks targeted those who were sending flaming kites or kites with Molotov cocktails.

One figure became a symbol of the militants located across the red line but not among those who tried to breach the fence. Saber al-Ashkar was a disabled protester in a wheelchair in the buffer zone hurling stones with his slingshot while surrounded usually by black smoke from burning tires.

We do not know how the planned sea war will unfold. The organizers of the Great March of Return, hardly an appropriate title for a continuing naval war let alone the air war, announced that they plan to put together a flotilla of boats to break the Israeli blockade. At the same time, this year Israel is planning to build a seawall using fortified rock and barbed wire to strengthen its sea blockade. Though the Palestinians continually focus on Gaza itself as a prison under siege by Israel, except for lifting the closure of the Rafah crossing for Ramadan, the Egyptian entry and exit gate has also been closed off.

Though outright war may be over for the present, what seems evident is that battles will continue to take place from land, sea and air.

 

With the help of Alex Zisman

 

 

With the help of A

3. Gaza 2108 – (a) The Ground War: Tactics and Casualties

Violence was expected from both sides though the demonstrations were dubbed “peaceful” by the Palestinians. Between the 23rd and the 28th of March, three infiltrators from Gaza had been caught and arrested by the IDF, but it appears that those caught were simply sneaking into Israel to find work; though they had weapons and fence cutters on them, they sought to be and were arrested 12 miles inside Israel. The first clashes took place on 29 March, the day before “Land Day” on 30 March when the first demonstrations were planned and at least 100,000 demonstrators were expected to show up, even though the original goal had been one million. Two Palestinians near the discontinued Karni crossing were captured near the security fence trying to set fire to army engineering equipment.

By 30 March, however, five different tent camps were set up at Rafah and Khan Younis in the south, el-Bureij and Gaza City in the centre, and Jabalya in the northern portion of Gaza. Israel anticipated that as many as 50,000 would demonstrate. Perhaps as many as 30,000 did the first day and 35,000 or even as many as 40,000 on the last day, but the totals never reached 50,000 let alone the target of 100,000 or the imagined one million. On other than the first and last Fridays, the total number of demonstrators and militants numbered about 10,000 each time. Further, the vast majority of those participating kept 300 or more metres from the border and did not engage in violence or attack the fence. They did not cross into the no-go zone pronounced by Israel. (I will deal with those who engaged in an air war in tomorrow’s blog.)

The fact that the overwhelming number of Gazans did not engage militarily or enter the 300 metre no-go zone was true even when, in the fourth week of protests, eight tents in the Malaka zone were moved to 300 metres from the fence. The vast majority of those who stayed 300 metres away or more neither sought martyrdom by attacking the fence nor aimed to harm or kill Israelis.

By and large, the estimates by both sides of those killed seemed to vary little. However, the numbers claimed to be injured varied enormously. 18 Palestinians were killed in the March 30th “demonstrations.” One died 7 days later. For example, two armed Palestinians with AK-47s and hand grenades were shot dead after exchanging fire with Israeli troops. Israel claimed that 7 were Hamas militants, though Hamas confirmed that only 5 were. Others killed included a global jihadist and a member of the al-Aqsa Martyrs brigade accounting for 50% of those killed. Another killed was holding a torch but running away from the fence at the time he was shot and another simply smoking and standing behind stone throwers behind a hillock. Another, Gazans claimed, was a farmer ploughing close to the fence; the IDF said they shot him because they expected that he was planting an explosive device.

During the following week, demonstrations diminished in size. Nevertheless, almost on a daily basis, militants were killed. On the 1st of April and the first day of Passover, 4 Palestinians wearing masks and carrying Molotov cocktails cut through the southern security fence and reached Kibbutz Kissufim where they were captured before they could set fire to equipment used to destroy Hamad tunnels. They were not injured or killed. On the 2nd of April, one Palestinian was killed after setting fire to a tire and rolling it towards the fence. Another was shot on the 3rd who broke open the fence, and another armed Palestinian on 5 April who approached the fence.

A week after the Land Day demonstrations, the Palestinians returned to large demonstrations on 6 April. 9 more Palestinians were killed and scores more, such as 20-year-old Mohammed Ashour, were wounded. One of those shot who died the next day was Yasser Murtaja, a thirty-year-old Palestinian cameraman for Palestinian Aid Media. Murtaja was shot in the southern Gaza town of Khuzaa, but when he was only 100 metres from the fence. He was wearing the flak jacket clearly marked “Press,” but the area was engulfed in black smoke as a result of the burning tires set alight by militants. Further, the IDF claimed that he was a Hamas operative.

A press release issued by the IDF claimed that the Israeli military “does not intentionally target journalists and that it would look into the circumstances of the shooting.” However, those killed were shot in the head or upper body. The indications seemed to be that they were targeted by Israeli snipers to be killed and not just maimed. As an IDF spokesperson tweeted, before he subsequently deleted the tweet, possibly because of inquiries about killing an unarmed Palestinian running away from the fence: “Nothing was carried out uncontrolled; everything was accurate and measured, and we know where every bullet landed.”

Yasser Murtaja was not the only journalist killed. Ahmed Abu Hussein aged 24 who worked for Gaza’s Al-Shaab radio station, the Voice of the People Radio in Jabalia, also was killed. He was wounded on 13 April and died from his wounds two weeks later in Tel Hashomer Hospital in Israel where he had been transferred when his wounds could not be treated adequately by the Gazan limited medical facilities at the Indonesian Hospital in Jabalia or even the much better hospital in the West Bank, the Palestinian Medical Compound in Ramallah to which he was first transferred. Some reports suggested that he was actually shot by a Hamas operative since he was most likely a member of the even more militant Popular Front for the Liberation of Palestine (PFLP). The latter claim – not the one that he was shot by a Hamas member seemed to be substantiated when the PFLP website posted notice of his death and referred to him as a “shaheed” (“shahid”), a martyr to the Islamic faith. Further, Voice of the People is a PFLP radio station. Even though working for a radio station, he allegedly flew drones to gather information for the militants as well as to take pictures of both the militant actions as well as the peaceful demonstrations.

Members of the Palestinian press did wear flack jackets clearly marked “Press.” To get the best pictures, they also went into the Israeli designated no-go zone within 300 metres of the fence. Using drones, they may also have been gathering evidence both on the military positions of the Israelis and for the charges against Israel that they planned to take on the ground.

It is not clear why some were targeted for killing and others targeted only to be injured. Israel’s B’Tselem, Human Rights Watch, the Anadolu Agency and Amnesty International all pronounced the use of force with intent to kill excessive and disproportionate to the threat. (See the separate blog on Human Rights in Gaza and Israel.)

According to both sides, under the cover of smoke from burning tires, scores of demonstrators broke away from the main peaceful body and approached the fence in spite of prior warnings by Israel that if they did, they would be met by lethal force. They were. Hamas leader, Yahya Sinwar appeared at the main demonstration later and pronounced to cheers that the great move towards the fence to breach the borders was coming so that they all could pray at al-Aqsa Mosque. Hamas repeatedly in the past, and continued during this phase of conflict, to set fire to the Kerem Shalom crossing through which humanitarian supplies enter Gaza.

Large demonstrations took place on 13, 20, 27 April and the 4th and 11th of May. The following figures suggest the scale of the demonstrations, the loss of life and the wounded, the latter including only those hit by live ammunition. Those killed by their own side, such as the four Palestinians who accidently blew themselves up on 14 April, are not included. Those who died during the previous week are included in the Friday totals.

Date            Size           Dead    Wounded              Comments

13 April       10,000          3           223         the dead included 1 journalist                                    20 April       10,000           5          48-90       including a 14-yr.-old                                 27April       10,000           5           174         12 crossed the barbed wire fence & reched the                                                                               electrified fence                                                            4 May          10,000             5             82         the wind blew tear gas on demonstrators               11 May       15,000             4             ?

On 14 May, the Nakba Day Protests, held one day before 15 May to correspond to the opening of the American embassy in Jerusalem, the situation changed dramatically. 35,000 demonstrators showed up. As indicated in earlier blogs, 62 were killed, 53 named by Israel as known militants. Perhaps 500 were wounded. Those killed now totalled about 110; the UN reported that 104 had been killed, 2 dozen between the ages of 14-16. One 14-year-old was a girl, Wisal Sheikh Khalil, who was trying to cut through the security fence with wire cutters. Over 1,000 had by then been hit by live ammunition. IDF press releases were contradictory, some claiming that the snipers hit where intended while others said that no shots aimed to kill. The latter claim is simply not credible, but many were killed because the smoke from the tire fires obscured the vision of the snipers.

Both sides used sand berms or earthen embankments, the Palestinians locating them 300 metres beyond the fence and beyond the red line within which Israel promised to use live ammunition. Israeli snipers (about 100), infantry and tanks were located on the Israeli side behind embankments. What is clear is that there were three parts to the Palestinian demonstrations – the vast majority located 500-700 metres from the fence, some delivering medical services. Most journalists were generally located behind the embankments about 300 metres from the fence. A second group, usually young militants across the red line, participated in stone throwing. Third, small groups of militants tried to reach or get through the fence. The latter never exceeded 10% of the total number of demonstrators. But they were sitting ducks for Israeli snipers, despite the smoke given off by burning tires. Martyrdom seemed to be an integral part of the Palestinian protest.

It also seems clear that, although the Israeli armed forces did contain the militants and largely prevented their entry into Israel, and suffered only one soldier wounded, Israel seems also to have significantly lost the war for international public opinion. Some blame this on the public relations ineptitude of the IDF. But the IDF is faced with a dilemma. If journalists are allowed within 2 miles of the fence on the Israeli side, the problem is not that they are at significant personal physical risk, as Israel often insists, but that they gain clear access to the tactics of the Israeli army in countering the Palestinian demonstrations and attacks on the border.

The war did not stop on 14 May. But the demonstrations have. There have been a small number of militant incidents since. For example, on 27 May a bomb was placed next to the fence. Israeli tanks blew up a Palestinian observation post and killed three Gazans in response. However, the main thrust of the war has shifted, not to the sky war, which I will sum up tomorrow, but to a planned sea confrontation.

 

With the help of Alex Zisman

 

 

2. Gaza 2018: The Media War (c) Jewish Handwringing

There are more balanced and objective defences of Israel than those cited in the previous blogs in this series. However, balance in some sense is part of their problem. The other part of the problem is subjectivity, not objectivity, though there is plenty of distortion in the depiction of the events. These accounts focus on affects and moral tensions resulting from what took place in Gaza.

Using Yiddish to get the full flavour, there are what I dub the “verklepte kvetchers,” the emotional complainers, such as Rabbi Donniel Hartman in Jerusalem. These verklepte kvetchers express enormous compassion for the Palestinian victims while criticizing the Gazan government, identify with the pain of the soldiers who are forced to kill in defence of Israel, but issue a cri de coeur about Israeli government policies. But they do not undertake the analysis to link how policies produce those casualties and pain.

 

As Hartman wrote, perhaps in an attempt to be as poetic as Barghouti, “When we heard of the lives lost as protesters mixed with enemy combatants walked, or crept towards the thin wire keeping our cousins and uncles safe, we mourned: We mourned firstly for the lives lost, the youthful potential which was ended; We mourned for our Palestinian cousins, who are no closer to stability today than yesterday; And we mourned for the innocence of our soldiers, having to make life and death decisions – who had to aim to hurt and pray their shots were true.”

Quoting more fully from his essay written after 14 May and published in The Times of Israel,

“Gaza paralyzes me into silence.

“When I read reports or hear discourse about Israeli Army use of lethal force against demonstrators, I cringe. To call what is happening at the Gaza border a demonstration, is a perversion of reality as I know it…

“What is happening on the Gaza border is not a protest against the reality of life in Gaza, but an attack against the sovereignty of Israel and its right to exist. Palestinians have every right to view and experience the formation of Israel as their Nakba (catastrophe). They have every right to view the Six Day War and Israel’s reunification of Jerusalem as a deepening of this Nakba. When tens of thousands of people, civilians interspersed with thousands of Hamas and Islamic Jihad terrorists, march on our border with the intent to destroy it, and penetrate into Israel, and allow the terrorists to murder Israelis, it is not only not a peace demonstration, it is not a demonstration at all. It is a battlefield, where anyone who approaches the fence is a combatant…

“The challenge is that when it comes to Gaza, for Israelis our moral conscience is by and large, silent. We argue that our unilateral withdrawal from Gaza, including its setting of the precedent of dismantling Jewish settlements, should have inspired Gazans to embrace or at the very least explore, the possibility of peace, instead of the path of war. It should have inspired the trade of goods and the fostering of economic ties, and instead it led to missile fire and the resulting partial blockade.

“We hold the Gaza population personally responsible for the choices they have made. We hold the leadership that they have chosen, a leadership that regularly declares its desire for my destruction and acts on it, as responsible both for the tragedy of Gaza and its rectification. And as a result, most Israelis believe that from this moment henceforth, our moral responsibilities are limited to our efforts at self-defense. The plight of Gazans is taken out of the equation of our moral discourse.

“Gaza paralyzes me into silence, for I am like most Israelis. I am not only saddened by the choices they have made and by the paths that they have chosen not to take, I am angry. I am a devout two-statist, who believes in the right of the Palestinian people to sovereignty in their own state, living side-by-side with Israel in peace and security for both of us. I am angry, because I believe that the hatred and violence spewing out of Gaza has possibly buried Israelis’ belief in the viability of the two-state solution in our lifetime. Any discourse about a Palestinian state in Judea and Samaria is immediately rejected under the counter-argument: “It will just become another Gaza.” And this Gaza will be able to shut down all of Israel with mere mortar fire.

“But as my daughter’s phone call reminded me, we cannot allow ourselves to be paralyzed, and to create a moral black hole in our society. I do not believe that Israel is principally responsible for the reality which is Gaza, but it does bear some responsibility. I do not believe that our soldiers on the border of Gaza are firing on demonstrators but are engaged in a war. I do not believe that the Hamas-inspired action on the border poses an existential threat to the State of Israel. It does, however, pose a life-and-death danger for many Israelis. At the same time, 60 human beings were killed and thousands were injured in one day.

“While 60 human beings lost their lives, and Israeli soldiers were engaged in the horrific challenge of protecting our border, tens of thousands of Israelis converged on Rabin Square in Tel Aviv to sing and rejoice with Netta Barzilai on her and our victory in the Eurovision contest…

“We do not need to take moral responsibility for the reality which is Gaza, but at the same time we cannot allow our humanity and moral conscience to be so inert as to sit down and drink, not to speak of dancing in our city squares, when we are causing, justifiably or not, death and chaos.

“We can believe that the events in Gaza are a war against Israel, support our soldiers, and still desire a public debate over the means necessary to win this war. I don’t value Monday morning moral philosophers, nor expressions of ‘concern’ for loss of life. I do value serious moral reflection on how to ensure that we live up to our military moral code, which demands that even when force is used in self-defense, we only use the amount of force necessary and in proportion to the danger that we face, and that we do everything in our power to avoid civilian casualties. I do desire an Israeli society which welcomes and engages in this discourse.

“I do not believe that our soldiers are violating international law, yet I am interested in a public discourse about what our soldiers on the front lines in Gaza are experiencing. I am interested in defending our soldiers from being placed in situations where their orders are not clear, and thus placing our soldiers in morally compromised situations.

“Gaza paralyzes me, because human beings are dying at my hands, and I do not know how to prevent it. Gaza frightens me, because it is so easy to forget it and sing, regardless of what is happening there. Gaza challenges us, for it is in Gaza that our commitment to the value of human life is and will be tested.

“We may not be principally responsible for the reality which is Gaza, but like all moral human beings, we must constantly ask ourselves whether and how we can be part of the solution. As Jews, we are commanded to walk in the way of God, a God who declares, ‘My creation is drowning, and what are you doing about it?’ ”

Though I agree that our responsibilities should not be limited to self-defence, the responses of fright, anger and cringing are also inappropriate. So is stewing in misplaced moral dilemmas. So is placing full responsibility on the political policy process and the military orders of the general staff. For those soldiers in the front lines also have moral responsibilities instilled in them by the IDF. But some of them may not have incorporated those norms as guides for their conduct. What is needed are:

  1. More accurate depictions of what took place.
  2. A more accurate definition of the real moral problem.
  3. A more accurate analysis of the Palestinian objectives.
  4. The real source of the moral tensions many Israelis experience while they continue to celebrate life and not that they continue that celebration.

Hartman links the possible use of lethal force by the IDF against the Palestinians by denying there were demonstrations. The action was one of militancy generally. But the behaviour of the Palestinians has to be dissected. The vast majority were engaged in peaceful demonstrations. Such a depiction is not “a perversion of reality” but a more accurate depiction. Others were engaged in an attack and not just a demonstration against Israeli sovereignty. IDF snipers did use lethal force, but they mainly targeted militants who attacked and tried to break through the fence.

Many of the attackers were unarmed in any military sense. Some who did not try to break through the fence were also wounded. There is a legitimate question about whether the IDF and/or individual soldiers followed international norms when engaged in conflict. At the same time, it is inaccurate to say that “tens of thousands of people, civilians [were] interspersed with thousands of Hamas and Islamic Jihad terrorists.” It would be more accurate to write that Hamas and Islamic Jihad militants were undoubtedly mixed in with the peaceful demonstrators. But the focus of the IDF use of lethal force was not against the demonstration, but against militants who tried to break through the fence.

Further, though the Palestinian objective was said to be breaking through the fence to initiate the destruction of Israel, the real objective was to produce martyrs to win a public relations war. There was a peaceful demonstration. There was also a battlefield. They existed within a few hundred metres of each other. One does not have to affirm one (the militancy) by denying the other (the peaceful demonstration).

There is an additional problem. Hartman thinks that the problem for most Israelis is that they have pocketed their moral compass when it comes to Gaza. Why? Not because some soldiers may have wounded non-militants, but because many Israelis insisted on getting on with their lives and celebrating Netta Barzilai’s victory in the Eurovision contest. But it is Hartman who has misdirected part of his moral compass.

Why? Because he fails to acknowledge that some IDF soldiers may have possibly killed or wounded non-militants, not as collateral damage, but intentionally. That should be the focus, and I believe is the hidden concern of most Israelis. Hartman is simply wrong to direct his moral outrage against Israelis who celebrated Barzilai’s victory. Hartman is absolutely correct when he writes, “I do value serious moral reflection on how to ensure that we live up to our military moral code, which demands that even when force is used in self-defense, we only use the amount of force necessary and in proportion to the danger that we face, and that we do everything in our power to avoid civilian casualties.”

Analyses that connect circumstances to policies and actions are required. This might prove that, indeed, little can be done. Or the analysis my point to openings that can be exploited. What we do not need is emotional paralysis.

With the help of Alex Zisman