UNHRC Report.2014 Gaza War.IV. Context and Ius ad Bellum

The UNHRC Report on the 2014 Gaza War

Part IV: Context and Ius ad Bellum

by

Howard Adelman

The section on context in the UNHRC Report on the 2014 Gaza War is packed with interesting material even though it only has five paragraphs, an odd fact in itself since exploring the reasons for going to war is 50% of the obligation of applying humanitarian law to violent conflicts. The section begins with the following two sentences: “The hostilities of 2014 erupted in the context of the protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip, and of the increasing number of rocket attacks on Israel. In the preceding months, there were few, if any, political prospects for reaching a solution to the conflict that would achieve peace and security for Palestinians and Israelis and realize the right to self-determination of the Palestinian people.”

There are five words about the rocket attacks on Israel. That item is placed second, sandwiched between continuing occupation by Israel and the fading possibility of achieving self-determination for the Palestinian people. The evaluation is almost explicit: continuing occupation provoked the rocket attacks in the context of the failure to achieve an independent Palestinian state. The opening part of the first sentence is about the “protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip.” This not only assumes that the Gaza Strip is occupied, as the UN officially does, but that the occupation of the West Bank and East Jerusalem is of the same order as that of the Gaza Strip. East Jerusalem, including the Old City, has already been relegated to a Palestinian state and regarded as under foreign occupation; the original 1947 UN resolution on partition putting Jerusalem neither under Jewish nor Arab control has been relegated to the dustbin of history. Further, only the failure to achieve self-determination of the Palestinian people is included as a receding goal; there is no mention of the security of Israelis. That is the context. Whatever one is to believe about the Middle East, this is not a statement of an impartial investigating body that presumably should either avoid taking sides, especially when unnecessary, or, at the very least, expressing some awareness of its own distinct bias.

The section on context is so short that I can reprint the whole of it following the opening two sentences quoted above of paragraph 53:

  1. The blockade of Gaza by Israel, fully implemented since 2007 and described by the Secretary-General as “a continuing collective penalty against the population in Gaza” (A/HRC/28/45, para. 70), was strangling the economy in Gaza and imposed severe restrictions on the rights of the Palestinians. Two previous rounds of hostilities in the Strip since 2008 had not only led to loss of life and injury but also weakened an already fragile infrastructure. Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma. In the West Bank, including East Jerusalem, settlement-related activities and settler violence continued to be at the core of most of the human rights violations against Palestinians. In the absence of any progress on the political front, the risk of a flare-up of the situation was evident.
  2. In the meantime, threats to the security of Israel remained all too real. Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity. According to one witness, residents of her kibbutz experienced regular panic attacks after a tunnel discovery in March 2014 and the explosion of an alleged tunnel exit on 8 July. Several other infiltration attempts were thwarted by the IDF during July and August.
  3. The events of summer 2014 were preceded by an agreement, reached on 23 April 2014 between the Palestinian Liberation Organization and Hamas, which sought to end Palestinian divisions. On 2 June 2014, President Abbas declared the formation of a Government of national consensus. The Government had yet to assume its full responsibilities in Gaza when active hostilities broke out in the Strip in July 2014, thereby leaving Hamas exercising government-like functions, as had been the case since June 2007.
  4. On 12 June 2014, three Israeli teenagers were kidnapped and brutally murdered in the West Bank. In response, Israel launched an extensive search and arrest operation, which lasted until the bodies of the teenagers were found on 30 June. On 2 July, a 16-year-old Palestinian teenager from East Jerusalem was viciously murdered by being burned alive and his body discovered in West Jerusalem in what appeared to be an act of revenge for the murdered Israeli teenagers. Tensions in the West Bank, including East Jerusalem, ran high, and were further fuelled by a rise in extreme anti-Palestinian rhetoric. Widespread protests and violent clashes ensued between Palestinians and the Israel Defense Forces.
  5. On 7 July 2014, the Israel Defense Forces commenced operation ‘Protective Edge’ in the Gaza Strip, with the stated objective of stopping the rocket attacks by Hamas and destroying its capabilities to conduct operations against Israel. The operation began during Ramadan, the Muslim month of fasting. After an initial phase focused on airstrikes, on 17 July 2014, Israel launched a ground operation, which it declared sought to degrade “terror organisations’ military infrastructure, and [… neutralize] their network of cross-border assault tunnels”.  A third phase began on 5 August and was characterized by alternating ceasefires and on-going air strikes. The operation concluded on 26 August when both Israel and Palestinian armed groups adhered to an unconditional ceasefire.

The causes and precipitators of the war are divided into two overall historical frames, the history of Israeli-Palestinian relations since 2007 and, secondly, the internal struggles between two factions among the Palestinians, Hamas in Gaza and Fatah in the West Bank.  Further, there are two geographically-based classes of factors: the situation in the West Bank and East Jerusalem and, secondly, the situation in Gaza. In the Report, the factors in the West Bank boiled down to four: i) the dim prospects of a peace agreement that would facilitate Palestinian self-determination; ii) settlement-related activities and settler violence that allegedly constituted the bulk of human rights violations against the Palestinian people; iii) the lack of political progress and the continuing Israel-inflicted human rights violations that had turned the West Bank into a tinder box in which the risk of a flare-up was evident; iv) the killing of three Israelis by Palestinians and the reprisal killing of a Palestinian by an Israeli.

As far as the situation in Gaza, four factors were also cited: i) the blockade; ii) the rocket attacks from Gaza onto Israel; iii) the digging of tunnels from Gaza into Israel; and iv) not the failure of but the prospect of  a reconciliation between the PA and Hamas. Let me deal with them all in reverse order.

Given that the apparent about-to-be-realized reconciliation between Hamas and the PA, one possible explanation for the outbreak of the war could possibly have been the use of war to disrupt the implementation of the agreement. The Report nowhere suggests this and simply notes that the reconciliation was underway. But it could have considered that argument. After all, in the seventeen months after Hamas took total control in Gaza in June 2007 following its electoral victory the year before, that is, following Hamas’ complete takeover of the Palestinian Authority national government within Gaza formed in March and headed by Ismail Haniya by a coup, in the course of and following the takeover, an estimated 600 Palestinians, one-quarter of the number purportedly killed in the fifty day Gaza War in 2014, were killed. In between May of 2008 for the next six years many more died, but not nearly the number in the initial militant phase of the conflict between Hamas and the PA, even including those murdered by Hamas under the cover of Operation Protective Edge. On all of this except for the last item, the Report is silent as if it is irrelevant to understanding the context.

Agreements of reconciliation, such as the May 2011 Cairo Reconciliation Agreement, were never implemented. In April 2014, two months before the outbreak of the Fifty Day Gaza War, an agreement was signed to form a unity government and hold elections. On 23 April 2004, both parties made a joint announcement about the formation of a new technocratic government prior to both parliamentary and presidential elections that would follow. The agreement said nothing about Israel, a two-state solution or the recognition of Israel by the Palestinian unity government, but President Abbas announced that the signing of the agreement was understood to imply both of these terms. On 2 June 2014, President Abbas swore in a new technocratic unity government.

President Benjamin Netanyahu denounced the agreement between Abbas and Hamas, that he repeatedly termed a terrorist organization committed to the destruction of Israel. Abbas issued a statement saying that Israel was out to sabotage the new government. Contrary to Netanyahu’s prophecies and warnings, the European Union, including France and the United Kingdom, as well as Russia, China, India, Turkey, welcomed the new unity government as a step towards peace. The Israeli cabinet, in contrast, voted to impose further unspecified sanctions against Palestine.

The war interrupted but did not end that process of Fatah-Hamas reconciliation even though Fatah stood aside, refusing to get involved militarily and allowing Hamas to be beaten to a pulp. The negotiations resumed in earnest after the war was over, but that process also recently came to naught. One might have thought all of this was pertinent to the issue of determining whether Israel initiated military action in Gaza to undermine the new unity government and once again set Hamas and the PA against one another. On the surface, this indeed did seem plausible. But there is no discussion of this in the Report. Perhaps it is because during Operation Protective Edge, Israel’s Shin Bet brought Abbas very convincing evidence that Hamas was plotting to depose Abbas and assume rule over the West Bank by activating its sleeper cells across the territory to instigate a third intifada.

Israel had not waited for Abbas to act. On 1 July, Israel launched Operation Brother’s Keeper, ostensibly in response to the kidnapping of the three Israeli teenagers (see later). The crackdown targeted Hamas’ militant cells and leadership in the West Bank resulting in 11 killed, 51 wounded and over 400 arrests, many of them recently released prisoners in the Gilat Shalit 1,100 prisoner exchange for Shalit’s return to Israel. Surely this was relevant to consider whether Hamas’ increased reign of rockets was at least understandable and, possibly, even justifiable.

Shin Bet’s evidence for a plot may have been false. After all, Abbas did revive the negotiations for a unity government. However, in the interim, Israel acted with force against Hamas in the West Bank, presumably with the blessing or perhaps only acquiescence of Fatah. Abbas did nothing to interfere with Israel’s sweep through the West Bank. However, whether or not there was secret cooperation between Fatah and Israel, surely the Israeli government’s serious concern about the formation of a new unity government with Hamas as a partner was at least relevant in understanding and trying to assess whether the instigation of all-out hostilities was warranted as a matter of self-defence, as Israel declared, or whether it was an act of aggression deliberately undertaken by Israel to destroy the prospect of a new unity government. In any case, if the latter was Israel’s objective, it did not work because negotiations over a new unity government started up again at the end of Operation Protective Edge. Further, by the summer of 2015, they had self-destructed on their own accord without any military intervention by the Israelis.

What about the blockade of Gaza and Hamas’ building of tunnels and sending rockets into Israel prior to the outbreak of the war? In 2007, after Hamas seized total power in Gaza, Hamas denounced the Oslo Accords, rejected the two-state solution and declared its objective to be the elimination of Israel. Surely, that is relevant as a possible casus belli. Israel initiated a land, sea and air blockade of Gaza. Israel had disengaged from Gaza. Instead of Palestinian society advancing its process of self-determination alongside that of Israel, the latter witnessed the emergence of a much more formidable and determined enemy in Gaza. This was the strongest blow that the Oslo Accords had received.

But this is not how the Commission wrote up the preceding events. Rather, with a weakened and already fragile infrastructure, “Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma.” The focus is on the Palestinian people as a whole. The different factions are not recognized. The people are raised to heroic status for their stamina in the face of great challenges. Now one could write the account much more from a Palestinian perspective than I did, but the contents in the report are written like first level history writing in which one side consists of heroes and the other of bullies and aggressors. Since it would be hard to dub Hamas as heroic, especially given the documentation of their actions, the virtuous attributes are assigned to the people as a whole. And no distinction is then made between the response of West Bankers who, whatever the inconveniences and hardships of the occupation, have economically prospered and strengthened the infrastructure, and the residents of Gaza whose infrastructure has been repeatedly destroyed by two previous violent encounters and whose re-investment in infrastructure has been significantly dedicated to building first quality attack tunnels and purchasing rockets and missiles.

The Report does say that, “threats to the security of Israel remained all too real.  Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity.”  Go back to 5 March 2014 when the Israeli navy intercepted a ship with a load of scores of long range missiles from Iran. Subsequently, Hamas spent its scarce funds for infrastructure on a monument to celebrate its rocket attacks that took the war into what Hamas dubbed the heart of the Zionist enemy. Reading the Report, one would never know that the EU, Canada, Japan and the U.S. as well as Israel had dubbed Hamas a terrorist organization, while the UK and Australia restricted that depiction to its military wing, the Izz ad-Din al-Qassam Brigades.

The Report provides as context that Hamas “increasingly launched rockets during June and July.” But rocket attacks went back to 2013. In January alone, 22 rockets were aimed at Israel; there were 9 in February and 65 in March. During the negotiations of a new unity government between Hamas and Fatah, rockets launched fell to 19 and 4 respectively in April and May, but then leaped again to 62 in June. Perhaps these figures seemed, in retrospect, insignificant in light of the 2,874 rockets Hamas rained on Israel in the opening month of the war. But surely these actions were relevant to depicting the context.

What about Palestinian activities in the West Bank? The key turning point that could have ignited the third intifada was the killing of two Palestinian teenagers on Nakba Day, 15 May 2014 by sniper fire. On 22 May, CNN broadcast evidence that the shots were not rubber bullets as the Israelis claimed, but live ammunition that had been fired against the Palestinian protesters, likely from the vicinity of Israel’s Ofer military prison. International demands for an independent investigation were ignored. On 12 June, possibly in reprisal for the shooting of two Palestinian teenagers, three Israeli teenagers were abducted in the West Bank and were eventually found dead.  Israel blamed Hamas which initially denied the charge, but Israel released documents showing that a Hamas member, Hussam Qawasmeh, had orchestrated the abductions after his brother had received $60,000 from Hamas in Gaza. On 20 August, Saleh al-Arouri, a Hamas leader in Turkey, acknowledged responsibility and said that the goal was to ignite a third intifada. Was this not relevant to the context?

The original specific goal of the abduction of the three Palestinian teenagers was evidently to hold the teenagers in return for the release of many more Palestinian prisoners, while, in the interim, sabotaging the progress on the Palestinian unity government as well as firing up the youth in the West Bank and demonstrating Hamas leadership even there. The PA confirmed Hamas responsibility. Then Hamas did as well, but insisted that it had no prior knowledge of the incident, did not condone the targeting of civilians but nevertheless celebrated the action as a response to oppression and an act of resistance. Since 2013 until these abductions, the PA and the Shin Bet together foiled about one hundred prior abduction attempts, the PA almost half of them. Was this not relevant to depicting the context? The incident triggered the reprisal Operation Brother’s Keeper by the Israeli military mentioned above, and human rights organizations, including Israel’s B’Tselem, denounced the disproportionate response. The denunciation could be expected from B’Tselem, but it also revealed that the human rights organizations did not interpret proportionally to mean the ratio of response and actions in relation to the military objective as required by humanitarian law, presumably foiling future kidnappings and preventing another intifada, but the ratio of the effects on each side.

However, suspicions about the real intentions of the Israelis rose when it was discovered that the Israelis did not learn of the deaths of the three teenagers on 30 June when the bodies were found, but had known for a long time that they had been killed. On the other side, Hamas significantly escalated its rocket attacks in response to Operation Brother’s Keeper. Negotiations between Israel and Hamas to halt and roll back the escalation broke down when Hamas added to its demand that Israeli reprisal bombings against Gazan targets be stopped in return for the cessation of rocket fire, but the conditions now included a demand that the blockade be immediately lifted and prisoners released. Hamas also escalated its rocket attacks once again. That is when Operation Protective Edge was launched.

Providing a far more adequate and fuller context would have only taken another page or two of the Report. Why was this aspect of the Report so impoverished and so deformed? Now I am not arguing that I have provided a more objective treatment than that provided by the Commission, only that it is much more complete. A much more complete picture was necessary for the Commission to assess to what degree the escalation of violent hostilities and their instigation into all-out warfare fell within the range of military actions permitted by the set of ius ad bellum criteria for going to war. Was Hamas the proper authority to escalate its rocket attacks since it was not the government of the Palestinian state, but only the political faction in de facto control of Gaza? Did each party warn the other? Certainly Israel announced that unless the rocket attacks ceased, Israel would launch a much more formidable response. In fact, from the Israeli side, it is very difficult to suggest under any of the criteria for evaluating breaches in ius ad bellum that Israel was in breach of any of them, including:

  • Proper authority
  • Fair warning
  • Just cause
  • Probability of success
  • Proportionality in resorting to military means
  • Last resort

On the other hand, the initiation and escalation of the violence by Hamas at best only satisfies the criterion of just cause. Hamas had no probability of success. If self-determination was simply the goal, then following the path of the PA would surely indicate a greater route to success. Resorting to an escalation in violence was only justified if Hamas had a larger goal, and Hamas was explicit in asserting that it did – the destruction of Israel. Given that goal, violence was not a last resort as it might have been if the goal was simply self-determination or lifting the blockade, but a requisite first step.

I can only speculate, but I presume this truncated and distorted account of context was so brief because nothing the Commission could have written would allow any detached reader to conclude that Hamas was justified in escalating the number of rockets fired at Israel according to humanitarian law governing the initiation of war. Quite the contrary. The best route to lifting the blockade would be to agree to giving up aggression against Israel and giving up its goal of eliminating Israel from the map of the world.

The initial substantive content of the Report instead of reinforcing the credibility of what would follow undermined it.

Next Blog: Ius in Bello – Hamas Violence Against Israel During the War

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