X: Combating BDS: International Diplomacy

X: Combating BDS: International Diplomacy

by

Howard Adelman

Let’s begin by recognizing that while BDS advocates boycotts, sanctions and divestments, Israel actually appears to enforce boycotts and implement sanctions against both the PA and the Hamas regime in the Gaza Strip. The latter is well known, the former less so. As a case in point, Israel refused in the first four months of last year to transfer tax revenues collected as customs duties on goods transiting Israeli ports destined for territory controlled by the PA. These are legally Palestinian funds. As a result of the 1994 agreement between the PA and Israel, Israel generally transfers tens of millions per month for these custom duties levied on goods transiting the Israeli port destined for the Palestinian market. On several occasions in the past, the transfers were stopped for a month or two. Last year, the boycott lasted four months and the PA had to reduce the pay of civil servants (200,000) to 60% of normal salaries.

There were two reasons offered to rationalize the sanction. The first was political, punishing the PA for using the international legal and diplomatic system against Israel. The cessation in the transfer of funds was allegedly because the Palestinians sought to join the International Court to pursue war crimes charges against Israel. A second reason was economic – a claim for non-payment of long-outstanding electrical and gas bills owed to those respective Israeli utility authorities. The PA sued the Israeli government in an Israeli court. Justice Menahem Mazuz ruled that the Israel government had breached the terms of a contract between the two parties. The duties collected could not be used to pay other debts owing. The ruling also undermined the legality of withholding the funds for political reasons.

After the court ruling, Israel made a large first installment payment towards the past debt by transferring the duties withheld in March and April 2015. Monies withheld from duties collected from December to February were transferred as soon as both parties agreed on the debt owed to the utilities and deducted those monies from the monies owed to the PA. In addition, a joint committee was set up to resolve other claims between the PA and Israel. The above and other issues must be understood within the terms of the Oslo Accords, more specifically, the 1994 Paris Protocol on Economic Relations. It established an effective customs union between Israel and the PA. In contrast, municipal, income and corporate taxes from Israelis and Israeli entities in the settlements were, in accordance with the agreement, collected by Israel and not transferred to the PA, but used to benefit those settlements.

Whereas Israel periodically for short periods sanctions the PA, it boycotts the Hamas government that is not a party to the agreement. Because of the Paris Protocol, most BDF information and efforts have focused on Gaza where the effects of the Israeli boycott are so harsh in reprisal for Hamas rocketing Israel and to prevent Hamas with being resupplied with materials that could be used in its offensive attacks against Israel. Hamas has an ideological determination not simply to tear up the Paris Protocol, but to eliminate Israel as a state.
From the other direction, the PA boycotts the import of settler-made goods primarily through an educational and witness campaign by government leaders. There is no legally sanctioned economic penalty on Palestinians importing, selling and using such goods. Nor are Palestinians who work in Israeli settlements (36,000) penalized. They earn three time what they would earn working in the West Bank but receive no health or pension benefits or unemployment insurance. Many of the 1,000 businesses established in the West Bank are partnerships between Palestinians and Israelis.

BDS has been mostly silent about the work force, but strongly critical of the “educational” and witness campaign of the PA, characterizing it as a meaningless publicity stunt – such as the Karama or Dignity Pledge to boycott settler goods. BDS objects to any normalization of arrangements with Israel and implementation of the Paris Protocol. As a result, the PA denounces the much broader BDS campaign. Abbas has said, “We are not boycotting Israel, because we have agreements and imports from it” and openly endorses the principle of “adherence to signed agreements.”

At the instigation of the PA, in March the United Nations Human Rights Council approved the creation of a database of companies that do business in areas under Israeli occupation by a vote of 32 in favor with 15 countries abstaining. Israel’s ambassador to the United Nations, Danny Danon, slammed the initiative claiming that, “The Human Rights Council has turned into an accomplice of the BDS movement, and its conduct is both anti-Israeli and anti-Semitic.” BDS joined in the criticism, but for very different reasons. Such an action was not extensive and was not a boycott, just an information offering procedure. In November of last year, the EU itself passed a regulation that required an indication of origin label on goods from the occupied territories with enforcement left to the individual states. That regulation required labeling merchandise or food products originating in West Bank or Golan Heights settlements as: “product from the West Bank (Israeli settlement)” or “product from the Golan Heights (Israeli settlement).”

BDS, on the other hand, pushes its boycott, sanctions and divestment strategy “on companies to cease doing business within Israel, to stop selling Israeli products, for international performers not to perform in Israel, for academics to refuse cooperation with Israeli institutions and for cultural institutions to boycott Israeli government-sponsored events aimed at prettifying Israel’s apartheid practices.” The BDS movement insists that it will continue its campaign until Israel ends its occupation and colonization of all Arab land [not just land in the West Bank], recognizes the rights of Palestinian citizens of Israel to full equality, and respects, protects and promotes the rights of Palestinian refugees to return to their homes. This would mean the effective dismantling of Israel as a Jewish state. The return of refugees has never been imposed on any government in the world. The BDS campaign is clearly not just about settlements in the West Bank, but about the very nature and even existence of Israel.

This is not widely recognized as Palestinian sympathizers pick from the smorgasbord of moderate to extreme methods of confronting Israel through sanctions, boycotts and divestments. Israel, in turn, tries to brand BDS as an anti-Zionist movement and not just a critic of Israeli policies. Further, efforts are made to equate that anti-Zionism with anti-Semitism and, most recently, with anti-Judaism. I will turn to this topic in my next blog.

I want to finish this blog by documenting the efforts of each side to either confront BDS (Israel) or to bypass BDS (PA) through diplomacy in the global arena, primarily in the United Nations. Like Russia and the U.S. engaged in a renewed lukewarm non-military war, Israel and the PA, whatever their differences on the international stage – and they are at loggerheads on many issues – are both opponents of BDS.

Recently, at the end of May, Israel’s Mission to the United Nations and the World Jewish Congress joined together with a plethora of Jewish organizations in the diaspora in hosting a one day anti-BDS “summit” at the United Nations entitled, “Building Bridges, Not Boycotts.” A strong motivation for organizing the meeting was not just the efforts of BDS. Danny Danon, Israel’s UN ambassador, placed the UN Human Rights Commission in bed with BDS because the former, he declared, decided to blacklist anyone who does business in Judea and Samaria. And that is the Achilles heel of the anti-BDS camp. Instead of dividing those who criticize the settlements from those who would boycott Israeli goods, academic institutions and institute a cultural boycott against Israel, unsurprisingly he put relative moderates, including, in part, the PA, in bed with its enemy, the BDS movement. And he called them both anti-Semitic.

Yesterday evening, I watched the opening of the Republican Convention in Cleveland. The speech of Melania Trump, Donald’s wife, though lacking a few needed intimate anecdotes, and, as revealed quickly afterwards, in part plagiarized Michele Obama’s 2008 Democratic Convention speech, was otherwise superbly crafted and extremely well delivered. Other speeches simply demonized Hillary in a world aflame with mostly extremist Islamicist violence. Speaker after speaker reiterated the theme of making America great and safe again. In contrast, Hillary was portrayed as the devil incarnate, pilloried for her alleged failures and reiterating Donald’s claims that she is a crook. “Lock her up,” they shouted.

“Building Bridges, not Boycotts” (BBnB) was like a Trump rally, a gathering of the converted, of anti-BDS forces of which the vast majority were Jews, 1,500 students, but without the advantage of a single star performer. Jewish reggae singer, Matisyahu, did perform in the morning in the General Assembly Hall. Matisyahu had been targeted himself by BDS and, for a short period in 2015, a Spanish organization cancelled his scheduled appearance before the cancellation was reversed under pressure from the Spanish government. What made BBnB most akin to the first night of the Republican Convention was the effort to totally demonize BDS and all boycotts against Israel as anti-Semitic. The principle of these exercises in a collective harangue seemed to be, keep it simple, paint only in black and white colours and, through repetition after repetition, drive home a single atrocious association with whatever and whoever is being targeted. Of course, it is ironic to compare BBnB to a Trump rally since Trump is bent on building walls not bridges.

Several months earlier, when Danny Danon denounced the UN effort at labelling goods originating in West Bank settlements, he did not differentiate between such efforts and the BDS much wider goals. Further, even these UN efforts were labelled as anti-Semitic. In his speech at the end of May at the BBnB, conference, the Israeli Ambassador to the UN and the main force behind the rally, gave the opening speech and characterized BDS as anti-Semitic. He recalled the passage of the Zionism is Racism motion at the UN forty years earlier and the victory in getting the UN to revoke that motion in 1991. He depicted BDS as a new threat to Israel and the Jewish people based on lies and distortions and hiding behind the mask of human rights and peace activism when it was just a global effort to delegitimize Israel. BDS’s campaign of hatred was the face of modern anti-Semitism, he declared.
Ronald Lauder, President of the World Jewish Congress, elaborated on the reasoning for this. He made the following points:

1. The United Nations was created 70 years ago out of the carnage of World War II. It was created on the broken bones of the Jewish people, with the pledge that the world would never see again the kind of human destruction that the Nazis forced on our people.
2. Today, the UN has singled out the only Jewish State in the world – Israel – with lie, after lie, after lie.
3. We chose to look at an equally dishonest campaign against the Jews – the BDS movement – right here at the United Nations.
4. Those who chose are no longer victims and no longer have to rely on others to protect us; we are no longer ghetto Jews, no longer willing to be quiescent, no longer timid, but new Jews. “And we are absolutely done being quiet! Enough is enough!!!”
5. Enticed by the seduction of fighting for rights, of fighting for justice, those who support BDS do not listen to the BDS chant: “From the River to the Sea, Palestine will be free!”
6. Expanding on the theme of BDS as not only anti-Zionist but anti-Semitic, he insisted that the current boycott against the State of Israel is no different from Henry Ford’s anti-Semitism of the 1920s or the Soviet bloc’s anti-Zionism of the 1950s and 60s.
7. BDS is not concerned about the rights of Palestinians, but denying the Jewish people the right to self-determination in the exclusive focus on Israel as distinct from all the other vicious states that abuse of human rights.

It was a rallying speech, not an analytic one. It is not simply a distortion; it is a falsification to say that the UN was created on the broken bones of the Jewish people when the issue for the UN in the aftermath of WWII was not the Holocaust at all but what to do with 250,000 Jewish refugees in Europe that no one wanted. It may be true that the UN has disproportionately, and enormously so, singled out Israel for condemnation, but it is a distortion to suggest – though not actually assert – that Israel is the only state condemned for human rights abuses. Iran and North Korea have both been chastised, and Iran is the only state for Iranians just as Israel is the only Jewish state. Whether true or not – and no documentation was offered to support the thesis – there is the question whether equating UN activities with BDS was diplomatically astute? It would not likely win over strong UN supporters who are not particularly antithetical to Israel and who do not support the wider goals of BDS. The problem was multiplied when Lauder used the old canard that the old Jew was quiet and passive in the face of oppression. BDS may indeed be anti-Zionist as I contend, and possibly anti-Semitic, which I question, but assertion is not the same as argument.

Elyakim Rubinstein, Vice-President of the Israeli Supreme Court Justice and formerly the Attorney General of Israel, took a different path and provided a detailed account of the lawfare fight with BDS in the international legal arena. (See my previous blog.) Further, calling for a boycott of Israel was not protected as a right in the U.S. under the First Amendment. He also characterized BDS as “political terrorism under the guise of freedom of speech.” He came to the same conclusion, that BDS was out to destroy Israel, but did not confuse the labelling issue of goods from the West Bank with the BDS program.

The conference also evidently heard from Mosab Hassan Yousef, now living in the U.S., “The Green Prince” who worked undercover for ten years for Israel’s internal security service, Shin Bet, from 1997 to 2007. He was the son of Hamas leader, Sheik Hassan, and is credited with hunting down many militants. I could not find his speech on the internet, but in other settings he has excoriated Hamas and claimed BDS was a front for Hamas. On the other hand, a second Palestinian in attendance, Bassam Eid, founder of the Palestinian Human Rights Monitoring Group, joined the chorus of Jewish speakers who criticized BDS and the Palestinian leadership without distinction.

This theme was echoed in the 30-page guidebook handed out to attendees, but was focused on BDS as a movement of hate accused of being anti-Semitic while characterizing BDS as “all-powerful” with tentacles everywhere in language usually characteristic of anti-Semitic rants against Jews. The booklet stressed the use of state legislatures to boycott entities that boycotted Israel. So if BDS works to delegitimize Israel, this movement headlined in the 31 May 2016 meeting at the UN was focused on delegitimizing BDS. Students were encouraged to contact legislators to make efforts at boycotting academics illegal. And, in contrast to the main thrust of the conference, students were advised to drive a wedge between critics of Israel and BDS delegitimizers of Israel. Label BDS as anti-Zionist and anti-Semitic.

With the help of Alex Zisman

UNHRC Report 2014 Gaza War.III.Methodology

The UNHRC Report on the 2014 Gaza War

Part III: Methodology

by

Howard Adelman

How one investigates is as important as who does the investigation (the previous blog) and what framework one brings to the investigation (the first blog in this series).  Further, how one communicates the results of one’s investigation is integrally related to what is revealed, but I will reserve the discussion of that aspect of the methodology only after we examine the majority of the Report. For the context of how results are conveyed is as important as the context of the actual events themselves and the methodology for determining facts.

The Commission never visited Gaza. Israel never even acknowledged the repeated requests from the 2014 Gaza War Commission to permit entry from Israel. Egypt would not even allow the Commission to enter via the Rafah crossing, allegedly due to the security situation (para. 3). However, as we read on, Egypt’s refusal was irrelevant. Why?

“Israel also regulates all (my italics) crossings allowing access to and from Gaza. While it is true that the Rafah crossing is governed by Egypt, Israel still exercises a large degree of control, as only Palestinians holding passports are allowed to cross, and passports can only be issued to people featuring on the Israeli generated population registry.” (para. 29) Israel controls who gets passports in Gaza. Why is this claim made? Israel “controls the Palestinian population registry, which is common to both the West Bank and Gaza, and Palestinian ID-cards can only be issued or modified with Israeli approval.”

Assertions like this undercut the credibility of the report. Though most readers of the report will be unfamiliar with the so-called passport war, the basic facts are these:

  • The PA, not Israel, overwhelmingly controls who receives passports in Gaza
  • The PA issues approximately 500 passports per business day to Gaza residents
  • The PA is the party, not Egypt, which restricts the issuance of passports based on vague security concerns
  • Egypt’s restrictions are imposed, not only for security reasons, but to prevent overstayers and using Egypt as a place to escape from living in Gaza
  • Hamas has a record of confiscating passports held by members of Fatah, in part in retaliation for the PA limitations on who gets passports
  • Gaza human rights organizations have campaigned to end the practice; thus A-Dameer, one of the Gaza-based human rights organizations, once declared that, “The PA automatically prevents people affiliated with Hamas from receiving passports. We have appealed to the prime minister on the matter, but have so far received no response.”
  • The enforcement of these practices shifts depending on the character of the relations between Hamas and Fatah at the time
  • The major obstacle to leaving Gaza has not been the absence of passports, but the possibility of entry to either Egypt or Israel, both of which restrict entry, but Egypt has permitted students to cross, those seeking medical services, those with visas to other countries and those en route to attend the annual haj pilgrimage
  • Israel’s veto rights based on the Oslo accords over the Palestinian population registry is almost totally irrelevant to the issue over the issuance of passports, and is a red herring if ever there was one.

Why would the commission damage its credibility over such a side issue? Because, just as in referring to the Palestinian State, the Commission is committed to reinforcing the position that Israel is an occupying power, for an occupying power has additional responsibilities that an alien belligerent does not have. This is a clear example of ideology more than even a human rights frame influencing the content of the Report.

However, by and large the writing of the Report has not been influenced by the imposition of such crass uses of ideology. The Commission has relied on expert witnesses, especially when it had to determine the type of weapons used in a specific incident. However, witnesses who might contest the findings are not used. In using expert witnesses from the medical field to reinforce the source of death or injury, the Commission does not explain why medical doctors concerned with children’s health in Israel were not interviewed, but those in Gaza were.

However, the Commission has primarily relied on affected individuals through written submissions (500) and interviews (280), and on other witnesses primarily from human rights organizations. I will later offer a hypothesis to explain this source as the primary evidence in the documentation. The Commission also heard from representatives of the government of the West Bank, as indicated above, referred to as the representatives of the Palestinian State. No explanation is offered for that designation. Nor is there any consideration presented of how such a designation might in itself determine Israel’s non-participation in the process and whether such a designation arose after Israel’s refusal to participate or was one of the provocations that incited Israel to remain aloof from the proceedings of the Commission.

The Commission claimed that “a number of Israeli non-governmental organizations were reluctant to cooperate with the Commission of Inquiry, fearing in some cases that there could be negative repercussions on their work.” This is hard to believe and no back-up is provided for this contention. Certainly B’Tselem, Israel’s premier human rights organization, seemed to show no reluctance in offering evidence and is extensively cited in the Report.

Those who were not interviewed rather than those who were may be of somewhat greater significance. I mentioned two types of missing witnesses above, Israeli doctors and military experts on the use of weapons who might contradict the findings of the one military expert employed. A military expert on munitions was consulted to determine types of weapons used. That testimony, which is included in the details of each of the incidents described, reinforces the sense of detachment and concern with factual detail in the Report, but there is no reference to other military experts who might have a different view, and, if so, how the Commission adjudicated between and among differences. We will have to see when we examine the detailed descriptions whether this was significant. Alternatively, was there sufficient consensus such that the attention to detail on the munitions had another purpose that explains why this needed to be included in such detail. This is especially important since there is relatively very little in the Report, as there was in the Goldstone Report, discussing weapons banned by international humanitarian agreements.

There is no record of interviewing military personnel on either side or experts from either side or from other armies, or experts in humanitarian law, mainly the ICRC already discussed, other than from human rights organizations. The Commission also relied on satellite imagery, video and photographic evidence. But all of these sources, both neglected and included, were subsidiary. The Commission “gave particular weight to first-hand testimonies, recognizing the limitations resulting from the fact that the interviews were done remotely, the lapse in time since the incidents occurred, and the possibility of reprisals.”

The primary method in examining and presenting the evidence of the depiction of individual incidents is the use of “reasonable grounds” as the measure of what took place. That is, what “a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.” (para. 19) Such a determination is based on the reliability and credibility of the source related to the objectivity and quality of the evidence and the methodology by which the evidence was obtained. The validity and veracity of the information itself was evidently based on cross-section comparisons. In examining the presentation of individual incidents, we will have to see if a major method of scientific objectivity was used, namely what checks were used to see if the evidence was false – known as the application of the principle of falsifiability, or whether that principle was employed at all.

This allows me to segue into a very different methodology altogether, and not one even mentioned or discussed in the methodology section –s literary and stylistic methods of presentation as well as issues related to determining scientific reliability and objectivity. First, it is very interesting that the Commission decided to place the depiction of the damages to Israeli civilians and property first. Of the almost 500 paragraphs in the Report which constitute the bulk of its material, only 50, or 10%, deal with attacks from Gaza against Israel. 90% deal with incidents of civilian deaths and injuries and property damage in Gaza. That may be justified because the proportions represent the different degrees of damage done by each side to the other, something that will have to be determined by a specific examination of incidents.

Before the Commission gets into the examination of the specific incidents, it offers an account of the legal framework it uses and of the context in which it places its investigation and the conflict that occurred. On the matter of the legal framework, the Report discusses three area of international law – humanitarian law (14 paragraphs), human rights law (8 paragraphs) and international criminal law (5 paragraphs).  The proportion given to each type of law is no indication of the importance in compiling the Report. For when one studies the Report, it is clear that the overwhelming framework for examining the legal issues in the conflict is humanitarian law.

On the issue of humanitarian law, the Report presents the most relevant principles for the conduct of war and presents them fairly and succinctly.  However, the Report offers no explanation of why it neglected to deal with other very relevant principles of humanitarian law. The first concerns not the conduct of war (ius in bello), the means and methods of engaging in a violent conflict, but the reasons for going to war in the first place (ius ad bellum). The Geneva and Hague Conventions are summarized as well as some follow-up treaties and references to customary international law, but case law seems to be reserved largely as citations in depicting and analyzing specific incidents. There is only an implicit and glancing reference to the reasons each side had for engaging in war in the first place and the extent to which the initiation of hostilities was justified.

This point is crucial. For both strands of international humanitarian law are critical to analyzing a conflict. To what extent does the Report engage in such discussions and what reason, if any, is offered for the relative inattention? The section on humanitarian law dutifully lists all the relevant international instruments. However, the focus of the discussion overwhelmingly concentrates on reinforcing the claim that Israel is an occupying power because:

  • Israel still occupies part of the Palestinian entity, namely the West Bank and East Jerusalem, and occupation of only part of a territory is sufficient to define a party as an occupying one
  • Israel exercises effective control over Gaza, not because it any longer has troops on the ground, but because it retains the capacity to launch troops easily into Gaza
  • Israel continues to control the air space and marine access
  • Israel exercises de facto control over the Gazan economy
  • As mentioned above, Israel controls not only access and egress via the crossings into Israel, but over the crossing into Gaza through its veto over the Palestinian population registry and, hence, over who does or does not get passports.

However, the key criterion of the readiness militarily to occupy a territory is whether a country, in this case, Israel, can at will assume physical control of the territory. Since Israel, by the war itself, gave proof that it could NOT do this both in beginning hostilities against Gaza as well as in the staging of those hostilities – conducting a ground war only after a period of air war – Israel could not be an occupying power by this criterion. The interesting point is that the Report cites the relevant measure but engages in no discussion of whether the measure is or is not applicable. It merely assumes that Israel had the capability in spite of the massive evidence to the contrary. It is not simply that the massive evidence is ignored, but even the argument is totally bracketed.

Nor does the Report get onto the issue of necessary versus sufficient conditions. Each criterion the Report cites is a criterion for determining occupational status. The question is whether they amount to sufficient conditions only in combination? Or does the presence of any one by itself determine whether one state is in occupation of another territory? The Report is written not in the form of a social science investigation, which considers and weighs the arguments for each side in a contentious controversy, but in the form of a prosecutorial notification before a court citing only evidence and arguments for the viewpoint it is putting forth, a viewpoint which reflects the position of the UNHRC and majority of members of the UN when it comes to the Gaza case (but not the case of Russia in the Ukraine, for example).

Perhaps Israel is legally an occupying power. The evidence as presented is totally unpersuasive and defies common sense. For if Israel were really in control of Gaza, how did Hamas manage to smuggle all those missiles and mortars into Gaza? Surely Israel’s going to war and the way it went to war are the best indicators that it did not exercise effective control over Gaza. If the issue of effective control of air space and of maritime access and of occupying a part of the territory of a state were key, then given the American extra-territorial military role on the Dew line in Canada, and its deployment of nuclear-armed missiles in the north of Canada contrary to general public knowledge, the United States, one might argue, has been an occupier of Canada, quite aside from the fact that America is by far the most important influence on the Canadian economy. The absurdity of such a claim, that America is an occupying power in Canada, should at the very least instigate the Commission to present the arguments and evidence for the other side in full instead of dismissing them as simply incidental and troublesome claims by the party, namely Israel, which allegedly wants to disown its responsibilities.

If the primary emphasis is on the issue of humanitarian law, why the big emphasis on the issue of occupation? And why does the issue take so much of the space within the humanitarian law section when the key issue of occupation seems to be the applicability of human rights law and the point the Report makes at the end of the discussion of human rights law: “victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.” (para. 46) If Israel is an occupying power, then Israel is accountable to Gazan residents for justifying its behaviour and the relationship is not just one between two alien entities, Israel and Gaza.

The Report not only neglects key issues of humanitarian law. First, it avoids the critical issue of the justification for going to war in the first place. However, even other issues in the conduct of war than proportionality, distinction between combatants and non-combatants and the choice of military weapons used, are not discussed. Why is there no discussion of the principle of humane treatment? That principle prohibits violence to life and person, torture, taking hostages, treating the enemy population, whether combatants or non-combatants, in a humiliating and degrading manner, executions without due process and proper legal protections. In fact, the principle of humane treatment is referred to only once in the Report, not in the paragraphs discussing humanitarian law, but in a depiction of one incident of claimed mistreatment by Israeli troops. In paragraph 342, the Report cites the relevant Articles 27 and 29 of the Geneva Convention IV, and then makes the claim that in several cases, Palestinians were detained in their homes in Khuza’a, and then insulted, threatened with death and ill-treated by members of the IDF.

Quite aside from whether Israeli soldiers behaved this way in this incident – which will be discussed in another blog – or whether this was an exceptional incident, the real issue is why was the principle of humane treatment never discussed in the legal section and only cited once as far as I could find in the whole document?  After all, the Report does discuss and describe the extra-judicial execution of alleged collaborators (paras. 490-502), describing them as not uncommon, as mostly perpetrated against those imprisoned in Gaza before the outbreak of the war, ostensibly as a warning against other potential collaborators. These were among the most heinous breaches of the principle of humane treatment, and infinitely worse than the alleged conduct of the Israeli soldiers in this one incident cited. The Report documented 21 incidents in total (there were others), at least 11 of them from persons previously incarcerated in Al-Katiba prison. “On 7 August, Al Qassam Brigades, the armed branch of Hamas, claimed responsibility for the 5 August executions, declaring that the persons executed were ‘found guilty of giving information on the whereabouts of fighters and civilian houses’.” (para. 495)

Overt abductions, torture, extra-judicial killings, kangaroo trials in some cases, are all severe breaches of the principle of humane treatment, some evidently for strictly political reasons to dispose of Fatah personnel during war when the killings would not be noticed. It is interesting that the Report includes a promise made by the PA that the government would investigate at least 25 cases under this rubric “once it recovers control of the Gaza Strip” and the PA did not mean recovering control from Israel. This and other comments all challenge the Report’s assumption more than conclusion that Israel was an occupying power in control of Gaza. Another relevant aspect is that witnesses in Gaza refused to come forward and be acknowledged lest revenge be meted out against them.

The Report has to be applauded by inclusion of these incidents and pointing them out as breaches of the Geneva Conventions. But then why not discuss the applicable principle of humane treatment in the legal section? Why the overall emphasis on proportionality? There are other principles that are also ignored, one related to the principle of non-discrimination which directly overlaps with human rights principles. So is the principle ignored of preferential protection for women and children non-combatants, more particularly, protecting women from rape or assault, and prohibiting children from being combatants? Ignoring rape and assault of women might be understandable since neither side had a reputation for engaging in such activities. But there is plenty of evidence and certainly far more allegations that the militant groups in Gaza had no compunction against the use of child soldiers. Did the Commission not have a responsibility to investigate such allegations?

Once the principles of ius ad bellum were ignored, and which will be discussed in much greater detail in my next blog dealing with context, the playing down of the principle of humane treatment and of the gender issue may have been given little play because the condemnations overwhelmingly bring Gaza militants to the forefront and allow Israeli troops to appear much better in following such norms. But this is a mere speculation. We shall have to establish whether it has greater importance when we get deeper into the Report.

Next: Context and the Justification for Going to War