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