Examining Statements by Top UN Human Rights Officials on Gaza Violence
In response to Israel’s acts of self-defense on the Gaza border to prevent armed Hamas terrorists from storming the fence and heeding the calls of Hamas leaders to massacre Israelis—in their own words, to “tear out their hearts from their bodies,” and “draw the map of return in blood”—UN human rights officials rushed to condemn only Israel for “excessive” and “disproportionate” force against supposedly “unarmed demonstrators,” while completely ignoring Hamas’s role in and responsibility for the violence.
On May 18, 2018, the UN Human Rights Council held a special session on the violence, and adopted a one-sided resolution condemning only Israel, and failing to even mention Hamas. The resolution presumed Israel guilty of violations of international humanitarian law, international human rights law, and war crimes, and created an international Commission of Inquiry into Israel’s actions.
Regrettably, statements by High Commissioner for Human Rights Zeid Hussein and Special Rapporteur on Palestine Michael Lynk were replete with incorrect and misleading accounts of fact and law. Below is a review of the most glaring inaccuracies and misrepresentations in the following statements:
- May 18, 2018 statement of High Commissioner for Human Rights Zeid Hussein.
- May 18, 2018 statement of Special Rapporteur for Palestine Michael Lynk.
- May 15, 2018 statement of Special Rapporteurn for Palestine Michael Lynk.
We found six primary concerns with these statements.
1. Gaza demonstrators were “unarmed” and “non-violent”
Lynk (May 15) and Zeid (May 18) both referred to the rioters as “unarmed demonstrators.” Lynk also said (May 18): “The Gazan demonstrations have been almost entirely unarmed and non-violent.”
These statements misleadingly suggest that the events occurring at the Gaza border fence were entirely peaceful protests. However, that is far from reality. While the majority of the participants in the so-called demonstrations were unarmed civilians, many of them were armed members of Hamas’s military wing whose job was to rally the “protesters” to breach the fence and enter Israel to carry out terror attacks.
The riots were marked by violence, including throwing Molotov cocktails, catapulting flaming kites into Israeli territory intended to set fields on fire and cause harm, stone-throwing, attempting to cut through the border fence and infiltrate Israel, and firing at Israeli soldiers.
The flaming kites caused several fires on the Israeli side, damaging agricultural fields and infrastructure. On April 27, the rioters succeeded in breaching the fence for a short time. A number of Palestinians arrested after breaching border fence with Israel were armed.
Additionally, in the first two weeks of May, rioters incited by Hamas burned down the Kerem Shalom border crossing, the main crossing for humanitarian aid causing extensive damage and severely impeding the inflow of humanitarian goods and other resources necessary for Gaza’s infrastructure.
Just before the May 14 protests, Hamas leaders posted to social media maps of the quickest routes to Israeli towns and villages. The maps were widely shared on social media by Gazans intent on invading those communities.
Moreover, Hamas officials incited the murder of Israelis and rallied the crowds to violence. Below are some examples of Hamas statements and actions:
- April 6, 2018, Hamas Gaza leader Yehya Sinwar shouts: “We will tear down the border and we will tear out their hearts from their bodies.” 
- April 9, 2018, Hamas leader Ismail Haniyeh says: “Palestine and Jerusalem belong to us…We will break the walls of the blockade, remove the occupation entity and return to all of Palestine.”
- April 20, 2018, Hamas leader Ismail Haniyeh says: “Our people will outnumber the occupation and force it from our land.”
- April 27, 2018, Hamas Wire-Cutters unit who cut through border fence shout “Khaybar, Khaybar, oh Jews, the army of Muhammad has begun to return,” and one of the members warned “this enemy is destined for perdition,” and Israeli settlers should “leave immediately, before it is too late…”
- May 9, 2018, Hamas Gaza leader Yehya Sinwar rallies the crowd: “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.”
- May 11, 2018, Hamas leader Ismail Haniyeh rallies the crowd with chants of “Death to Israel,” and vows “We shall never recognize Israel.”
- May 14, 2018, Deputy Chief of Hamas in Gaza, Khalil al-Hayya, explains that the purpose of Monday’s demonstration is “to draw the map of return in blood.”
Even Hamas’s co-founder Mahmoud al-Zahhar admitted to Al-Jazeera on May 13, 2018 that calling the border protests “peaceful resistance” is “deceiving the public.”
2. Quoting Palestinian Casualty Statistics Without Any Independent Verification
Lynk (May 15): the demonstrations “left 58 Palestinians dead…”
Zeid (May 18): “43 demonstrators were killed by Israeli forces,” and “Israeli forces also killed a further 17 Palestinians outside the context of the five demonstration hotspots.”
Saying how many “Palestinians” or “demonstrators” were killed wrongly implies that all those killed were peaceful, non-violent protesters. This is an outright lie. Hamas’s own political bureau member Salah al-Bardawil, admitted on May 16, 2018 that 50 of those killed in the previous day’s clashes had been Hamas operatives, and called them “martyrs.”
Furthermore, as NGO Monitor explained in a recent op-ed, the accuracy of the statistics from the Palestinian Health Ministry in Gaza concerning deaths and injuries is highly questionable since the source of the information is Hamas which “has a vested interest in inflating the numbers.”
Veteran Middle East reporter Matti Friedman also wrote an op-ed, published by the New York Times, detailing how Hamas deliberately obfuscates the casualty numbers by censoring data to ensure that Hamas fighters are counted as civilian casualties. There does not appear to have been any attempt by UN human rights officials to independently verify the Hamas Health Ministry data for the March of Return casualty numbers.
Additionally, Hamas increased the casualty number by encouraging the rioters to burn the Kerem Shalom border crossing, the main crossing for humanitarian aid into Gaza, and by refusing truckloads of Israeli medical aid.
3. “Lethal force” is permitted only in cases of “imminent threat” of death or serious injury
Lynk (May 15): “I must reiterate that international human rights law sets strict prohibitions on the use of force by law enforcement officials. Lethal force against demonstrators is prohibited unless strictly unavoidable in the case of an imminent threat to life or threat of serious injury.”
Zeid (May 18): “I again remind all concerned that lethal force may only be used in cases of extreme necessity, as a last resort, in response to an imminent threat of death or risk of serious injury.”
Both Lynk and Zeid apply an incorrect legal standard to Israel’s use of force against Hamas’s violent terror attacks. Rather than applying International Humanitarian Law, which are the laws of war, to Israel’s use of force against Palestinian terrorists attempting to breach the border fence and harm Israelis, they apply a human rights law enforcement paradigm.
International Humanitarian Law (IHL) is the applicable legal framework for evaluating Israel’s conduct
Israel’s conflict with Hamas is an “armed conflict” under international law, which has been ongoing since well before Hamas took over the Gaza Strip in 2007 and has never concluded. Violent attacks on the border fence between Israel and Gaza, and attempts to breach that fence and invade Israeli territory are part of that armed conflict.
Thus, the defensive use of force by Israel against rioters at the Gaza border is governed by IHL, and not by a human rights law enforcement paradigm. Basic principles of IHL permit the use of deadly force in hostilities, remove protections from civilians directly engaged in hostilities, and accept the possibility of civilian casualties.
Israel is not required to suffer casualties before it can defend itself
First and foremost, international law recognizes that Israel has a right to self-defense, i.e., to protect its citizens from Hamas terrorists intent on breaching its border and committing massacres. This right is enshrined in Article 51 of the UN Charter. The right of self-defense applies equally when an attack is committed by a non-State actor, as explained by Judges Higgins and Burgenthal in the ICJ’s Wall case. Moreover, the right to self-defense is also a matter of customary international law, based on the Caroline case (1837).
This right to self-defense does not demand that Israel sit back and wait to be attacked before it fights back, but is triggered by imminent threats. As a High-Level Panel of experts appointed by former Secretary-General Kofi Anan explained in 2004, “long established international law” permits a threatened State to “take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate.” This view is widely accepted among international law experts. Hamas terrorists seeking to break through the border to carry out terror attacks against Israelis living nearby is an imminent threat.
Under IHL, Palestinians who take direct part in hostilities lose protected civilian status
In addition, Palestinian rioters directly participating in hostilities are not entitled to the protection afforded to civilians. Article 51(3) of the First Additional Protocol to the Geneva Conventions (1949) permits attacks on civilians “for such time as they take direct part in hostilities.” According to the ICRC commentary, this means “acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.” Therefore, engaging in violent acts intended to breach Israel’s border fence with Gaza and/or cause harm on the Israeli side of the fence would cause rioters to lose protected civilian status.
Proportionality not about how many killed on each side, but assesses expected civilian casualties in relation to anticipated military gain
Significantly, the concept of proportionality in IHL is not a question of comparing the body count—number of Israelis vs. number of Palestinians killed or injured. Rather, it is a prospective consideration based on the military commander’s assessment of whether the expected civilian casualties will be excessive in relation to the anticipated military gain. In fact, IHL accepts the possibility of civilian casualties. See, e.g., Article 57of the First Additional Protocol to the Geneva Conventions (1949). The correct legal analysis would look at whether the Israeli commander who decided to employ live ammunition in a particular scenario determined that the expected civilian casualties would not be excessive in relation the anticipated military gain, presumably preventing the breach of the border fence. It is a case by case analysis that can only be properly undertaken based on facts and data in the control of the Israeli army.
Even law enforcement paradigm permits use of force to quell a riot
Furthermore, even if the human rights law enforcement paradigm were applicable to these Hamas attacks, it does not limit the use of deadly force only to cases of imminent threat to life or deadly injury, but recognizes quelling a riot as a legitimate reason to use force. This is clear from the negotiations over Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which provides:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The U.S. and UK argued over whether this Article should list a specific set of exceptions where a killing would not be considered arbitrary. The UK had proposed three exceptions, including quelling a riot. The U.S. vehemently objected to creating such a list because, inter alia, it was impossible to create a comprehensive list that would cover all possible exceptions. Thus, the parties agreed that quelling a riot would serve a legitimate basis for use of deadly force. Furthermore, this is exception is explicitly stated in Article 2(2) of the European Convention on Human Rights (1950), which states:
Deprivation of live shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Even the International Committee for the Red Cross, author of the Geneva Conventions, accepts that in the law enforcement context, quelling a riot is a legitimate basis for use of force.
4. The contrast in casualty numbers proves Israel’s response was disproportionate
Zeid (May 18): “The stark contrast in casualties on both sides is also suggestive of a wholly disproportionate response…”
This is a completely incorrect statement of the law. As explained above proportionality in IHL is not a comparison of the numbers, but a question of whether the military commander made the assessment that the expected civilian casualties would not be excessive in relation the anticipated military gain in that situation. According to Zeid, Israel must allow its soldiers and citizens to be attacked and killed before it can fight back in self-defense. That is not the law.
5. Palestinian violence at the border fence did not pose a deadly threat justifying Israel’s use of lethal force
Lynk (May 15): “There appears to be no persuasive evidence that the use of flammable kites, throwing of stones or Molotov cocktails, or other actions reportedly taken by a small number of the demonstrators presented a deadly threat that justified the force used by the Israeli military.”
Lynk (May 18): “ an attempt to approach the fence, to damage the fence, or even to cross the fence, by an unarmed individual faced with heavily armed soldiers, does not constitute a threat to life or serious injury that would justify the use of lethal force. Similarly, stones, or even Molotov cocktails, thrown at significant distances towards well-protected and heavily armed security forces behind defensive positions, would not rise to the level of threat necessary to justify use of lethal force.”
Zeid (May 18): “Although some of the demonstrators threw Molotov cocktails, used sling-shots to throw stones, flew burning kites into Israel, and attempted to use wire-cutters against the two fences between Gaza and Israel, these actions alone do not appear to constitute the imminent threat to life or deadly injury which could justify the use of lethal force.”
Outrageously ignoring the many open and public facts about the Hamas incitement, calls for blood and martyrdom, declarations that Palestine must be liberated, rallying to breach the border fence and attack Israelis, Lynk and Zeid make the incredible assertion that the violence at the border fence did not pose a deadly threat.
Putting aside their incorrect legal analysis, which as explained above, wrongly restricts Israel’s use of force to cases of an imminent deadly threat, as a factual matter, the threat of the border fence being breached had (and has) the potential to be extremely deadly. Likewise, flaming kites, Molotov cocktails and other weapons also are potentially deadly. The flaming kites alone have caused extensive damage. Firefighters have spent hours combating the fires which have burned over 1,000 dunams of agricultural land and damaged the farming infrastructure. In the last months, over 300 such kites were thrown across the border setting off 100 fires. These fires certainly pose a lethal threat.
Here’s what the rioters themselves had to say on social media about their intentions:
- “[The Israeli town of] Sderot is only 700 meters east of [the Palestinian town of] Beit Hanoun in nothern Gaza. The headquarters of the Israeli army is there, and houses about 800 pigs. [The town] can be reached in two minutes on motorcycles or in five-eight minutes at a brisk run,” and urging “Murder, slaughter, burn and never show them any mercy.”
- “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 famlies. Pounce on them with knives.”
- “To anyone who succeeds in entering occupied soil: There is a fat fish waiting for us very close by: the settlement is Be’eri, located 4-4.5 kilometers from eastern Gaza… It is considered to be one of the richest settlements, and houses 900 settlers.”
- “People and residents of Gaza! With Allah’s help, afternoon prayers will be held in the Gaza border settlements of Nativ Ha-Asara, Erez, Sderot, Nir Am [and] Mefalsim…During your sacred advance tomorrow, I direct you not to kill children, women or very elderly people…”
- “Oh Jew, you do not belong here… [you have] no state here, only fear and terror.”
- “We, the rebel youth of the Gaza Strip, east of the Jebalia refugee camp, convey a message to the settlers along the border of the Gaza Strip: Leave immediately, before it is too late! The Palestinian revolution will not cease until victory or martyrdom!”
6. By blaming only Israel and ignoring Hamas actions, UN officials encourage Hamas terrorism and IHL violations which place both Israelis and Palestinians at risk
Notably missing from the statements of Lynk and Zeid was any condemnation of Hamas for its blatant violations of IHL, and incitement to violence and mass murder; acknowledgement of Hamas’s responsibility for the terrible plight of Gazans due to its continued support for terrorism, calls for the destruction of Israel, and refusal to reconcile with Fatah (NOTE: Lynk mentioned Hamas responsibility in passing in his May 18 statement to the HRC but focused all of his remarks on condemning Israel); and any call for accountability from Hamas.
Hamas violates IHL by targeting Israeli civilians for attack
Hamas’s IHL violations include threatening and targeting Israeli civilians for attacks. Article 51(2) of the First Additional Protocol, which provides: “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Hamas’s stated goal for the riots of breaching the border fence and attacking nearby Israeli towns—in the words of Hamas Gaza leader Yehya Sinwar “to tear down the border and we will tear out their hearts from their bodies”— is thus prohibited. Actual attacks on civilians such as those perpetrated with flaming kite bombs are likewise prohibited.
Hamas violates IHL by using Palestinian civilians as humans shields
Hamas further violates the First Additional Protocol by using Palestinian civilians, including women and children as human shields. Article 51(7) of the First Additional Protocol states: “The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”
Hamas leader Yehya Sinwar admitted that Hamas deliberately sacrificed women and children in the conflict. In a May 16 interview with Al-Jazeera, he said: “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.”
On May 14, 2018, the New York Times reported that Hamas was rallying protesters to approach the fence, shouting “Get closer! Get closer!” to the fence, and “We don’t want just one or two people to get closer, we want a big group.” A Hamas rioter captured by Israel also confirmed this, saying: “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.”
Hamas further incentivized rioters to violence, including women and children, by announcing that it would pay $3,000 to the families of anyone killed and $200-$500 to those injured, depending on the injury.
Hamas violates IHL by disguising its fighters as civilians
Another Hamas violation of IHL is the crime of perfidy, which includes feigning civilian or non-combatant status. As explained by the ICRC commentary to Article 37 of the First Additional Protocol to the Geneva Conventions (1949): “A combatant who takes part in an attack, or in a military operation preparatory to an attack, can use camouflage and make himself virtually invisible against a natural or man-made background, but he may not feign a civilian status and hide amongst a crowd. This is the crux of the rule.” (emphasis added).
Hamas violates this principle by keeping its operatives in civilian dress and hiding in the crowd. The fact that Hamas admitted 50 out of the 62 killed on May 14-15 were its own operatives, after the media and UN officials rushed to accuse Israel of disproportionate attacks on Palestinian civilians supposedly involved in peaceful protest, illustrates how Hamas has perfected this cynical tactic to its advantage.
Thus, at a minimum, Hamas is guilty of double war crimes—attacking Israeli civilians and threatening them with murder, and cynically placing its own civilian population at risk by using them as human shields for Hamas fighters who, themselves, are disguised as civilians.
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