Lawfare Blog: Framing Israel: The UN Commission of Inquiry on the Spring 2018 Gaza Border Confrontations
Unfortunately, loss of life became unavoidable even under these restrictive rules of engagement. However, the assumption that the vast majority of casualties resulted from unjustified and unlawful uses of force should be met with a great deal of skepticism. In this regard, it is certainly relevant that, contrary to COI findings, Israeli estimates indicate that at least 102 of those killed during operations were members of Hamas or other militant groups in Gaza. Indeed, even Hamas and other groups have admitted that at least 50 fatalities were their operatives. Furthermore, the IDF concluded most killings were unintentional, resulting from shots at legs ricocheting off the ground, targets bending over or shots missing their target among massed crowds. While some skepticism as to the accuracy of these accounts may be justified, such skepticism is equally applicable to the COI finding that only “2 to 3” deaths in this dangerous confrontation resulted from justified uses of force by the IDF.
This can only be the case under the report’s assertion that the IDF was obligated to treat all participants as civilians immune from attack under the armed-conflict paradigm, even including belligerent members of Hamas and other organized armed groups assessed as taking direct part in hostilities. There is simply no basis for such an assertion. In the context of an ongoing armed conflict, members of the enemy belligerent forces are subject to lethal attack once identified as such unless they have surrendered or been incapacitated by wounds or sickness. The fact that both the IDF and Hamas have asserted that a substantial number of individuals subjected to lethal force in fact fell within this category requires assessment not of use of force directed at civilians, but whether the enemy belligerent determination was reasonable under the circumstances. That determination then prompts an additional question: whether death or injury to some of the civilians was a legally permissible collateral consequence of an otherwise lawful use of force. This would require consideration of the precautions implemented by IDF forces and their proportionality assessments. Unfortunately, the COI bypassed these complicated questions by simply adopting an arbitrary conclusion that the IDF should have treated even belligerent operatives as civilians.
The COI’s biased and arbitrary framing is especially regrettable because an objective external inquiry into these complex security challenges could yield more effective policies, tactics and training to enhance security and mitigate risks to civilians. Instead of seizing this opportunity, the COI has produced a report that will only affirm ill-founded assumptions about the security operations conducted by the IDF last spring, and possibly spur fresh resort to dangerous confrontations by illicit actors such as Hamas.
Cruz, Military Experts Slam U.N. Report Suggesting Israel Committed War Crimes Responding to Gaza Border Riots
Sen. Ted Cruz (R., Texas) and experts in military affairs on Monday castigated a new United Nations report that suggests Israel committed war crimes while responding to violent Palestinian demonstrations at the Gaza Strip border last year.
The report, produced by the U.N. Independent Commission of Inquiry on the Protests in the Occupied Palestinian Territory, alleges that Israel killed 189 Palestinians during the riots.
"The Israeli security forces committed violations of international human rights and humanitarian law," said Commissioner Kaari Betty Murungi of Kenya. "Some of those violations may constitute war crimes or crimes against humanity, and must be immediately investigated by Israel."
The Israel-based Meir Amit Intelligence and Terrorism Information Center found that about 80 percent of those killed in the riots were affiliated with Hamas, which controls Gaza, and other terrorist organizations. Israel says that Hamas has used the demonstrations as cover to launch operations to breach Israel's border fence and attack Israelis.
Cruz said in a conference call that the U.N. report is a "dishonest" characterization of a more complicated situation in the Gaza Strip, citing reports that Hamas will often insert its fighters into crowds of protesters to incite violence and escape immediate detection from the Israeli military.
"It is a repeated and deliberate strategy of Hamas to use human shields," said Cruz, a member of the Senate Foreign Relations Committee. "The U.N. report ignores that reality."
Today, Joel Herzog, President of Association Suisse-Israël—Genève and son of former Israeli President Chaim Herzog, joined a family tradition of standing up against anti-Israel bigotry by tearing up a biased UN resolution in front of the UN Human Rights Council. pic.twitter.com/BsDfn6T6JB
— UN Watch (@UNWatch) March 18, 2019
A Moment of Truth for Hamas
The trouble for Hamas is there actually is grassroots anger in the Gaza Strip, but it is being directed at Hamas, not Israel.
Since the rockets were fired last Thursday, there have been civilian demonstrations against Hamas—a very rare occurrence—protesting the harsh living conditions which only seem to deteriorate.
One courageous middle-aged woman railed in a video circulating on social media, complaining that Hamas leaders and their children cruise around in luxury vehicles while her four sons are unemployed. “All of Gaza are unemployed because of Ismail Haniyeh and Yahya Sinwar. These officials care nothing about the poor people’s necessities. We have the right to live.”
The Hamas kleptocracy is in plain view, and the diversion of billions in aid and blood money into the terrorist and military infrastructure in the Strip has not gone unnoticed, it seems, by the oppressed populace.
Throughout the weekend there were ongoing demonstrations in the Gaza Strip, including reports of seven journalists having been arrested and beaten by Hamas as well as videos circulating of brutal beatings of civilians. Early reports regarding the self-immolation of a 28-year-old man may have been misleading, with the video thought to have been several months old.
It is doubtful that these protests will dislodge Hamas from power or change the way in which the theocratic despots rule. Only a serious and sustained financial rebuke from their main benefactors, Qatar and the United Nations Relief and Works Agency, would accomplish that.
Each for its own reasons is beholden to the principle of the Palestinian “right of return” to ancestral villages and towns in present-day Israel, a euphemism for the destruction of the Jewish state. Continued conflict and misery is the only certainty.
In a widely-shared video from Gaza, a mother rails against Hamas.
— Raf Sanchez (@rafsanchez) March 18, 2019
“Our sons and daughters have lost 12 years of their lives. For what? Each son of a Hamas official owns an apartment, a car, a jeep, a building...While our sons have nothing at all." pic.twitter.com/1uyWpHWMd3
