March 5, 2019 – The independent human rights group UN Watch today released its initial response to the UN Commission of Inquiry’s report accusing Israel of “crimes against humanity” against so-called “peaceful protesters” at the Gaza border. UN Watch engaged in a lengthy correspondence with the inquiry, and expressed disappointment that its detailed submissions of law and fact — including a lengthy submission (summarized in official UNHRC Written Statements here and here) — were almost entirely disregarded.

The UN’s report follows the predetermined verdict of its founding document (resolution S-28/1), which mandated it to investigate Israel’s “military assaults” on “civilian protests” that began on 30 March 2018.

UN Watch rejects this biased report which gives a free pass to Hamas, and rewards its cynical use of civilians as human shields precisely in order to win political support from international bodies like the UNHRC.

UN Watch has the following initial objections to the UNHRC inquiry’s report.

1. Report ignores Hamas incitement, support and organization for violence at the border

The entire 22-page report contains no more than a handful of short paragraphs criticizing the Hamas terrorist group, gently described in the report as the “de facto authorities in Gaza,” primarily because it “encouraged or defended demonstrators’ use of incendiary kites and balloons.” (Para. 104).

Yet the report ignores the massive Hamas incitement, and its active participation in organizing and facilitating the violent riots. Among other things, Hamas selected the protest sites; provided electricity, internet access, food and drinks, and other services at the sites; arranged for busing to the sites; removed access restrictions to the area close to the border fence; supplied material such as wire cutters to sabotage the fence, explosives and other military equipment; and engaged in a massive incitement campaign through its state-controlled media. Hamas also conducted military exercises near the fence in advance of the protests.

Notwithstanding all of the above, according to the Commission, Hamas bears no responsibility for any of the militant activities along the border fence, or for the launching of thousands of incendiary devices into Israel which have terrorized Israelis and caused millions of dollars in environmental and property damage. Hamas is responsible only for “failing to take adequate measures to prevent incendiary kites and balloons from reaching Israel.” (Para. 109). We note that recently (Feb. 27, 2019) an incendiary balloon from Gaza damaged a home in Southern Israel.

2. Report ignores evidence of Hamas role in launching incendiary devices into Israel

The Commission found “no evidence to suggest that they [incendiary kites, etc.] were directed or coordinated by armed groups.” (Para 48). Yet, in a report published on June 19, 2018,  the Meir Amit Intelligence and Terrorism Information Center found that the Kite Unite employs Hamas symbols and messages, and that Hamas operatives are actively involved in the units.  Furthermore, in January 2019 it was reported that Hamas officials had met with heads of these units, and provided them with a new budget to prepare for new violence.

3. Protesting with the aim of breaching a border, and setting up a city on the other side in “lands that are ours,” but are actually part of sovereign Israeli territory, by its nature is not peaceful

The Commission relies heavily on the initial statements of the “March of Return” organizers for its conclusion that this was a “peaceful protest,” ignoring the multitude of evidence submitted by UN Watch and others demonstrating the violent nature of these disturbances. The Commission quotes a January 7, 2018 Facebook from one of the “march of return” organizers: “what if 200,000 demonstrators marched peacefully and broke through the fence east of Gaza and entered a few kilometers into the lands that are ours, holding the flags of Palestine and the keys to return, accompanies by international media, and then set up tents inside and established a city there.” (Para. 22). The Commission ignores the inherent contradiction in this statement between marching “peacefully” and breaking through the border fence. Infiltrating hostile territory with the aim of illegally establishing “a city there” because it is “lands that are ours,” by its nature is not peaceful.

4. Report whitewashes Hamas and other terrorist groups operating in Gaza

As further proof that these “protests” were “peaceful” and “civilian,” the report notes that several “political parties” were represented on the “march of return” planning committee, including inter alia, the internationally designated terrorist groups Hamas, Palestine Islamic Jihad (PIJ) and the Popular Front for the Liberation of Palestine (PFLP). In doing so, the report makes a false distinction between these groups and their “armed wings.” (Para. 12; 24). This completely ignores that for each of these groups, destruction of Israel is a main objective (see here for Hamas, here for PIJ, and here for PFLP). The fact that both the US and EU refuse to make this same false distinction by listing the entire organizations as terrorist groups, not just the “armed wings,” indicates that the “military wings” of these terrorist groups are integral to their operations and do not have a separate identity.

Bizarrely, the report celebrates these groups for what it claims is their “unifying element” that the demonstrations should be “fully peaceful from beginning to end,” despite the groups’ “diverse political views.” While it is true that unlike, Hamas and the PIJ which are Sunni Islamic organizations, the PFLP has a Marxist-Leninist ideology, all of these organizations have the common goal of destroying Israel. Therefore, it would have been more accurate to state that the unifying element of these groups is their desire to use terrorism to destroy Israel.

5. Report omits murderous incitement by Hamas and other terrorist leaders

The report entirely omits the massive incitement to murder Israelis by Hamas leaders, some of which was detailed in our Submission, making only a general reference to such statements as “ambiguous or inflammatory.” Statements like those excerpted below are completely inconsistent with a desire to keep the protests peaceful as alleged by the COI in its report:

  • “We will tear down the border and we will tear out their hearts from their bodies.” Hamas Gaza leader Yehya Sinwar (April 6, 2018).
  • “Palestine and Jerusalem belong to us…We will break the walls of the blockade, remove the occupation entity and return to all of Palestine.” Hamas leader Ismail Haniyeh (April 9, 2018).
  • “We would rather die as martyrs than die out of oppression and humiliation…We are ready to die, and tens of thousands will die with us.” Hamas Gaza leader Yehya Sinwar (May 9, 2018).
  • “Death to Israel,” and “We shall never recognize Israel.” Hamas leader Ismail Haniyeh (May 11, 2018).
  • The purpose of Monday’s demonstration is “to draw the map of return in blood.” Hamas Gaza Deputy Chief Khalil al-Hayya (May 14, 2018).

6. Report unquestioningly accepts Palestinian narrative on “return” and ignores rights of Jewish people to self-determination in Israel

The Commission buys into the Palestinian narrative of the so-called “right of return,” completely diminishing the fact that the idea of “return” is a direct threat to the existence of the State of Israel, and to the right of the Jewish people to self-determination in their national homeland. While UN resolutions refer to this “right of return,” such resolutions in no way suggest that this right can only be realized through actual return to territories in Israel, or that it takes precedence over other rights, like Israel’s right to peace and security.

For example, while UN security Council Resolution 242 affirms the necessity for “achieving a just settlement to the refugee problem,” the term “just settlement” clearly includes the possibility of financial compensation. Furthermore, Resolution 242 also affirms that “just and lasting peace” includes acknowledging Israel’s “sovereignty, territorial integrity and political independence,” and its “right to live in peace within secure and recognized boundaries,” rights which the Palestinians have not been willing to recognize. The very premise of the “march of return” to cause a massive breach of Israel’s border with Gaza and invade Israeli territory is an outright violation of Resolution 242, completely ignored by the Commission.

Likewise, General Assembly Resolution 194 does not offer a blanket “right of return,” but accepts the idea as one option for those wishing “to live at peace with their neighbors,” along with other options including compensation and resettlement. A protest that has the goal to break through a border security fence into “the lands that are ours,” but which are actually sovereign Israeli territory shows the opposite of a desire to live peacefully with Israel.

Moreover, the Oslo Accords classified the issue of refugees as a final status issue to be resolved through negotiations between the parties, not through an international media campaign to delegitimize Israel.

7. Report ignores crucial factual context affecting legal analysis

The COI justifies its application of the law enforcement paradigm under international human rights law by deeming the protests “civilian in nature” with “clearly stated political aims.” (Para. 32). However, this conclusion ignores crucial evidence provided to the COI in our submission that the “march of return” was used as a cover for militant activities intended to harm Israeli soldiers and civilians. Among many other things, the evidence provided includes:

  • Statements by Hamas leaders inciting rioters to murder Israelis and rallying the crowds to violence (e.g., “We would rather die as martyrs than die out of oppression and humiliation…We are ready to die, and tens of thousands will die with us.” Hamas Gaza leader Yehya Sinwar (May 9, 2018)).
  • Statement by Hamas Co-founder Mahmoud al-Zahhar admitting the protests are not “peaceful resistance.”
  • A Hamas press release admitting that the marches are being conducted by “the organizations of jihad fighters,” and that they are managed and supervised by “combat organizations.”
  • The establishment of special military-style units at the border, each responsible for a different type of tactic against Israel.
  • Instructions posted on the March of Return Facebook page for the May 14 riots, directing rioters to bring weapons (knife, dagger, or handgun), and attempt a mass breach of the border.
  • Numerous examples of militant activities at the border fence, including shooting attacks, planting IEDs at the fence, cutting the fence, and throwing Molotov cocktails into Israel (see, e.g., here, here, here, and here).
  • Statements by rioters of their intent to breach the fence, invade Israeli communities and kill or kidnap Israelis (e.g., one Facebook user posted “Kibbutz Kerem Shalom, east of Rafah, is only 300 meters from the border. It has turkey pens, a football field and a pool, [although] it houses only 15 families. Pounce on them with knives.”)

The COI’s conclusion also ignores the stated aims of the organizers themselves to “break through the fence” and establish a city in “the lands that are ours.” The act of sabotaging a hostile border fence which separates between two entities engaged in an armed conflict itself is a conduct of hostilities, not a “political aim.”

Indeed, the COI completely ignores the location of these so-called protests – at a hostile border between two entities engaged in an armed conflict, with the stated intent to breach that border and cause harm on the other side. Instead, the COI treats these events as if they were civil protests in the heart of a city like Tel Aviv, Paris, or New York, over which the governing authority has full control. In such cases, the governing authority has a greater ability to implement and enforce preventive measures, such as road blocks, to keep people away from danger zones, or security checks to check for weapons. That is not the case in Gaza, where only Hamas controls the Gaza side of the border where protesters gather, and only Hamas has the ability to keep protesters a safe distance away from the fence, but instead has deliberately encouraged protesters to approach the fence, knowing the danger. In these circumstances the means and methods available to Israel to keep people away from harm are much more limited than if the events were occurring in territory fully under Israel’s control.

8. Report deliberately misleads by describing border events as “festive” and omitting evidence of militant activities

The COI misleadingly describes the March 30 2018 disturbances as “initially festive,” and states that it “did not find that demonstrators were armed.” (Paras. 41-42). While the COI acknowledges stone-throwing and tire burning—activities it strangely claims are not violent, the COI omits all evidence of militant activities at the border fence. For example, the COI report makes no mention of a Hamas shooting attack on IDF soldiers that day, an attempt by militants to sabotage the fence and infiltrate Israeli territory, the laying of explosives at the fence in advance of March 30 to prepare for the “protests,” as well as on the protest day itself (see e.g., here and here). Moreover, as noted above, there are numerous other examples of militant and terrorist activities carried out under cover of the protests which the COI completely ignores insisting it had no evidence of demonstrators being armed. Some of these were detailed in our submission (starting at page 10).

9. Accuracy of COI’s death and injury statistics is questionable

The COI’s statistics for injuries and deaths of Gazans resulting from Israel’s use of live ammunition come from sources inside Gaza, mostly from the Hamas run health ministry, and are difficult to independently verify. We note that in some cases, reports claimed protesters were killed by Israeli fire when actually they were killed by their own fire or explosives (see e.g. here). The accuracy of the COI’s statistics is further called into question by the fact that it claims only 29 of the fatalities (out of 183 purportedly killed by Israeli fire) were members of Palestinian armed groups. This is directly contradicted by Hamas’s own admission that 50 out of the 62 people killed on May 14 were Hamas members, and that more than 50% of those killed since the start of the riots were Hamas members (see May 14, 2018 statement of Hamas politburo member Salah Bardawil). Moreover, according to data published by the Meir Amit Intelligence and Terrorism Information Center (updated through January 14, 2019), 150 of the fatalities were affiliated with terrorist groups, including 58 who were specifically affiliated with the military wings of these terrorist groups. The COI provides no support for its conclusion that only 29 fatalities were members of Palestinian armed groups.

10. COI repeatedly implies Israel’s response is disproportionate based on comparison of casualty counts

Throughout the report, the COI implies that Israel’s military response was disproportionate. It repeatedly references the large numbers of Palestinian casualties (based on Hamas health ministry statistics), while noting the lack of Israeli casualties. In the one instance the COI found a possible “direct participation in hostilities,” on May 14, 2018, it describes it as one person from the Gaza side firing a rifle towards Israel, and Israel responding with 40 minutes of tank and gunfire, killing 21. (Para. 57). We are not familiar with the specific facts of this incident. However, it must be emphasized that in the Laws of Armed Conflict, proportionality is a prospective consideration by military commanders based on available real time data (not in the possession of the COI) that looks to whether the expected civilian casualties would be excessive in relation to the anticipated military gain. The end result (i.e., number of casualties on each side) is not what determines whether a particular attack complied with the rules of proportionality.

The COI lacks the ability to decide whether Israeli actions complied with proportionality rules because it does not have access to the relevant data, which is classified, and lacks the requisite military expertise. In addition, the COI fails to acknowledge that the lack of Israeli casualties is not the result of Hamas compliance with its legal obligations or a Hamas attempt to avoid harming Israelis, but is due to Israel’s efforts to protect its citizens, including by preventing armed terrorists infiltrating Israel from Gaza. The COI misleadingly characterizes the events in such a way as to suggest to the reader that the militants at the border were innocent and that Israel acted disproportionately.

11. Report finds that IDF snipers intentionally shot children, health workers, journalists, and disabled people, knowing them to be such

This statement is completely unfounded. The Israeli army is greatly respected for its high moral standards, and has robust internal complaint and review procedures. It is often described as the most moral and ethical army in the world. On its website, the IDF explains that it does not intentionally target any of these protected groups, describes generally its procedures for avoiding such harm, and notes that journalists and medical personnel placed themselves in danger by operating close to the security fence, often behind a heavy smokescreen deliberately created by burning tires. The COI ignores these facts, as well as Hamas’s intentional use of protected groups, including children, as human shields (see below).

Moreover, as we noted in our submission, a number of minors actively engaged in militant activities at the fence and were affiliated with terrorist groups. (See examples here, here, and here). One of the children in these examples, Yasser Abu Naja, is described in the report in completely innocent terms without any reference to his Hamas affiliation or participation in militant acts.

It is telling that the COI accuses Israel of intentionally harming disabled people, including two people with hearing disabilities. It is not clear how Israel would be expected to visibly identify people with hearing disabilities as disabled. This further demonstrates the baselessness of the COI’s conclusions.

12. Report ignores Hamas use of children as human shields

At the same time it accuses Israel of intentionally targeting children, the COI completely ignores Hamas’s cynical use of children as human shields—a violation of both international human rights law and international humanitarian law. This practice has been extensively documented in the context of the march of return, including in information submitted by us to the COI. For example:

  • One Hamas terrorist caught by Israel explained how Hamas deliberately encourages women and children to approach the fence: “They [Hamas] tell women to go forward. They say to a woman: Go ahead, you’re a woman and the army doesn’t shoot women. They tell small children: Go ahead, the army doesn’t shoot small children. They tell a child to go ahead and he goes. It’s a small child. They trick him.”
  • Another Hamas operative arrested by the IDF said that Hamas militants dressed in civilian clothes encourage children to cross the fence and attempt to steal IDF equipment.
  • Hamas Gaza leader Yehya Sinwar admitted this practice in an interview with Al-Jazeera: “When we decided to embark on these marches, we decided to turn that which is most dear to us – the bodies of our women and children – into a dam blocking the collapse in Arab reality.”
  • Video footage of Hamas militants using a young boy as cover for their activities, and actively involving children in border violence.

13. Report justifies its conclusions against Israel with extremely narrow reading of the law that fails to take into account critical context

The report applies an extremely narrow view of the legal standard and deliberately minimizes the potential harm to Israelis in order to support its charge that Israel employed potentially lethal force where there was no “imminent threat” to life. The correct standard considers imminent threats to life or bodily integrity to oneself or others.

Although potentially lethal force is permitted to protect against imminent threats to oneself or others, the report considered only the threats to the responding IDF forces, described as being protected with “substantial defenses” (Para. 94; 96), while ignoring the threat to Israeli residential communities located meters from the fence. Given the openly stated goal of Hamas for protesters to infiltrate Israel and attack Israelis, and the militant activity along the border to sabotage the fence, this threat was (and still is) very real.

Furthermore, by defining imminence as “a matter of seconds not hours” (citing only to non-binding UN documents) (Para. 34), the COI suggests that Israel is obligated to wait for the armed terrorists to cross the fence, infiltrate an Israeli community, and actually threaten someone with a knife or a gun before it can respond with live fire. The likely result of a policy like this would be the death of innocent Israelis (See examples of Israelis killed by terrorists who infiltrated their communities here, here and here). Certainly, this is not the case. Israel has a right under international law to defend its citizens.

Applying such a narrow standard in this case, highlights the COI’s lack of military expertise and its failure to put the situation in the proper factual context. The COI failed to take into account that the timing of use of potentially lethal force to quell a life-threatening riot could significantly differ from the timing of use of such force in other law enforcement scenarios, such as to arrest a mass murderer.

Furthermore, as noted above, the COI incorrectly views the events as a typical civil protest in the heart of a city like Tel Aviv, New York, or Paris and ignores the fact that it is occurring on the opposite side of a hostile border that separates two parties to an ongoing armed conflict. Thus, as if it has put on blinders, the COI narrowly looks only at what is happening at a specific moment at the fence, without taking into consideration all of the surrounding facts and circumstances impacting on the level of danger at any given moment. Among other things, the COI fails to take into consideration the goal of the protest to invade Israel and attack Israelis, the presence of armed Hamas militants among the crowd ready to take advantage of any breach to commit terrorist attacks, the crowd dynamics which increase the threat from a potential breach, or the short distance from the fence to Israeli civilian communities.

14. No basis for COI conclusion that Israel targeted individuals based on memberships in armed groups

The COI states “targeting individuals purely on the basis of their membership of an armed group and not at the conduct at the time was impermissible.” Putting aside the disagreement about whether persons may be targeted solely based on their membership in armed groups, the COI provides no support for its conclusion that the IDF targeted individuals based on armed group affiliation. The facts that Hamas admitted that more than half of the deaths were Hamas members and that the Meir Amit Intelligence and Terrorism Information Center found that 150 of the fatalities were affiliated with terrorist groups do not establish anything about the IDF’s intent or real time tactical considerations (data not in the possession of the COI). If anything, these facts support the conclusion that the individuals targeted by Israel were not innocent, peaceful protesters, but were targeted because they were engaged in militant activity at the border fence, i.e., that the targeting was based on conduct and not on terrorist group affiliation.

15. Report fails to acknowledge UN report finding Gaza blockade is legal

Without providing any citations, the Commission states “The United Nations and the International Committee of the Red Cross have both found that the [Gaza] blockade constitutes collective punishment.” (Para. 16). Neither of these sources is binding on Israel. Furthermore, the Commission ignores the UN’s 2011 report on the Mavi Marmara incident by an independent panel of inquiry headed by Geoffrey Palmer, a former Prime Minister of New Zealand, which expressly found that Israel’s Gaza blockade is legal under international law: “Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.” (See ¶ 82). Some of the Panel’s specific findings concerning the Gaza Blockade include:

  • The conflict between Israel and Hamas in Gaza is an international armed conflict for the purposes of the law of blockade. (See ¶ 73).
  • Israel had intercepted ships smuggling weapons into Gaza, and it faced a real security threat from thousands of Gaza rocket and mortar attacks targeting civilians, the purpose of which was (and remains) “to do damage to the population of Israel.” (See ¶ 72).
  • The blockade was declared and notified, and it is implemented in an impartial manner. (See ¶¶ 75-76).
  • The blockade was imposed pursuant to a valid military objective. It is not collective punishment against the people of Gaza for having elected Hamas, as Israel’s earliest maritime interceptions to prevent weapons smuggling to Gaza predated the Hamas take-over, and the blockade itself was instituted more than one year after the take-over. (See ¶ 77).
  • The blockade is not disproportionate, as Gaza’s port is too small to handle large shipments of goods, which are instead transferred to Gaza through land crossings. Thus, the impact of the blockade on the delivery of supplies to Gaza is “slight in the overall humanitarian situation.” (See ¶ 78).

Significantly, the Palmer Report reviewed the reports of the detailed national investigations into the Mavi Marmara incident conducted by both Turkey and Israel (Turkel Commission Report). On the issue of the legality of Israel’s blockade, the Palmer Report agreed with Israel’s legal analysis. See Turkel Commission Report ¶ 112 for a summary of Israel’s conclusions.

16. Report blames Israel for lack of two-state solution, while it gives the Palestinian a free pass

The report places all responsibility for the current impasse in peace negotiations on Israel (Para. 20-21), giving a free pass to the Palestinians. In fact, the Palestinians have rejected every peace plan ever offered to them since before the founding of the State of Israel in 1948. Most recently, the Palestinians rejected former Prime Minister Ehud Olmert’s 2008 peace plan. Placing the blame for lack of peace exclusively on Israel rewards Palestinian rejectionism and Hamas terrorism, undermines Israel’s right to self-defense, and makes a negotiated two-state solution much more difficult to achieve.

Equally outrageous, the report states that the U.S. decision to move its embassy to Jerusalem reduces “hopes for a two-State solution further.” There is no basis for this claim, as President Trump made clear the decision was nothing more than a recognition of the reality that Jerusalem is Israel’s capital and its seat of government. Furthermore, in his remarks announcing the decision, President Trump reaffirmed U.S. support for the two-state solution:

“This decision is not intended, in any way, to reflect a departure from our strong commitment to facilitate a lasting peace agreement.  We want an agreement that is a great deal for the Israelis and a great deal for the Palestinians.  We are not taking a position of any final status issues, including the specific boundaries of the Israeli sovereignty in Jerusalem, or the resolution of contested borders.  Those questions are up to the parties involved…The United States would support a two-state solution if agreed to by both sides.”

CLICK HERE FOR OUR COMMENTS ON THE COMMISSION’S  FEBRUARY 28 PRESS CONFERENCE RELEASING THE REPORT

 

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