Like prosecutors run amok, Israel’s assailants, including prominent human rights organizations, are misrepresenting facts and law alike to convict Israel of crimes it has not committed.  In their misrepresentation of applicable standards, these organizations not only invite unwarranted opprobrium of Israel, but undermine both their own ability to advocate effectively against actual abuses and international law itself.

The casualty figures from Gaza’s Great Return March of April-May, 2018, are stark – 100-plus Palestinians dead and zero Israelis. Media, NGO and foreign government response were duly condemnatory.  Once Hamas admitted that at least half of the dead were Hamas members, and some additional number were members of other terrorist organizations, many critics tempered their criticism or recanted outright.

Yet major human rights organizations and their UN adjuncts have not moderated their tones.  They contend that Israel’s killing of Hamas terrorists was a violation of international law.  Their rationale is the worst kind of manipulation – misrepresenting and manipulating facts and the law to obtain a political conviction.

The reality of the Great Return March has now been adequately documented.  Ronen Manelis’ May 20, column in the Wall Street Journal is particularly cogent. So in brief, Hamas announced weekly protests at the Gaza border, instructed residents when and where to gather and what to do, arranged for tires to be brought and burned to obscure IDF troops’ vision, exhorted participants that “we will take down the border and we will tear their [Israeli] hearts from their bodies,” and leavened the protestors with trained fighters. Hamas then attempted to and did breach the border under cover of civilian shields.

Approximately 100 Palestinians have been killed in these riots since late March. Of those killed in the first two weeks, at least sixty percent were members of terrorist organizations.  Of the sixty-plus killed on May 14, at least fifty were Hamas members, and others were members of other terror groups including the Palestinian Islamic Jihad (PIJ) and the Palestinian Resistance Committees (PRC).  In a video captured and translated by MEMRI.org, Hamas lauded its martyrs for dying in “battle.”

A Fabricated Standard

Human Rights Watch has nevertheless determined that Israel has violated international law.  HRW Executive Director Kenneth Roth tweeted that Israel had no right to use deadly force “against anyone unless as a last resort to stop an imminent lethal threat.”

In response to Hamas’s claim that fifty of the dead from the peak weekend of May 11-14 were Hamas members, Roth tweeted that Israel could not shoot terrorists:

On May 16th, Roth tweeted that Israel is not justified in using deadly force against a Palestinian attempting to breach the border:

And that Israel “flouted [the] legal standard:”

Roth never cited the source of this putative “legal standard.”  However, a May 15 HRW report headlined “Israeli Open-Fire Orders Predictably Result in Bloodbath” provides clues.  HRW’s alleges that:

Israeli forces can use non-lethal means [to (sic)] prevent unauthorized crossings of borders, but international law prohibits the deliberate use of lethal force in policing situations except when necessary to stave off an immediate threat to life.  [Emphasis added.]

HRW did not provide a citation and does not explain why a law pertaining to “policing situations” applies to IDF actions at the Gaza border.

Digging deeper, HRW has misstated and misapplied a non-binding standard.  The “policing situation” reference appears to come from the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990. As implied by its title, the Basic Principles are principles, not binding international law, and apply law enforcement officials.  Principle 9 provides:

Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. [Emphasis added].

This is close to the standard HRW alleges applied to events at the Gaza border, but HRW omitted that lethal force may be used to prevent the perpetration of a particularly serious crime involving grave threat to life.

Amnesty International and HRW have both cited the Basic Principles in other reports.  Amnesty’s extensive 2007 report Understanding Policing notes:

Firearms may be used only:

• In self-defence or in defence of others against the imminent threat of death or serious injury
• To prevent the perpetration of a particularly serious crime involving grave threat to life
• To arrest a person presenting such a danger and resisting their authority
• To prevent his or her escape

Understanding Policing later reiterates that:

Shooting to kill is only lawful when it is carried out as a last resort to protect life (i.e. in self-defence or in defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, to prevent his or her escape) and only when less extreme measures are insufficient to achieve these objectives. [Emphasis added.]

Amnesty properly presents and cites Principle 9 of the Basic Principles.

HRW has been less transparent. In October, 2003, HRW published Hearts and Minds: Post-war Civilian Deaths in Baghdad Caused by U.S. Forces discussing use of force by US and Iraqi troops in Iraq.  In the recommendations section, HRW writes:

Under international humanitarian law, the occupying powers in Iraq are obligated to restore and ensure public order and safety. The means used to achieve security must conform with international humanitarian law and human rights standards. As such, the governments of the occupying coalition should ensure that: . . . U.S. and other coalition security forces not use firearms in policing situations, except where this is strictly necessary to defend coalition personnel or others against the imminent threat of death or serious injury. Whenever firearms are used, great care should be taken not to inflict injury on civilians. [Emphasis added.]

Hearts and Minds does not provide a citation and fails to note include the “serious crimes involving grace threat to life” provision in Principle 9.

In 2014, HRW published All According to Plan; The Rab’a Massacre and Mass Killings of Protesters in Egypt, which discusses Egyptian forces’ dispersion of Egyptian demonstrators in Egypt. According to All According to Plan:

The gravest incident of mass protester killings [by Egyptian security forces, which] occurred on August 14, [2013,] when security forces crushed the major pro-Morsy sit-in in Rab’a al-Adawiya Square in the Nasr City district of eastern Cairo.

On page 14, HRW paraphrases the Basic Principles:

International legal standards allow the intentional use of lethal force in policing situations in limited circumstances where strictly necessary to protect life.  [Emphasis added].

All According to Plan again does not include a citation and omits Basic Principles’ allowance that lethal force may be used to prevent perpetration of a particularly serious crime involving grave threat to life.

Wrong Standard, Bad Analysis

HRW’s application of Basic Principles is fundamentally dishonest and a transparent means of imposing artificially restrictive rules and constraining Israel’s counterterrorism operations.

HRW’s pretense is presumably that Israel occupies Gaza and therefore any security action it takes in or around Gaza is necessarily a “police situation” like post-invasion US operations in Iraq.  Even if a technical definition could be contrived under which Israel were occupying Gaza, it still would not follow that all Israeli security actions in or around Gaza were by definition policing situations.  The facts on the ground demonstrate that the IDF has no police presence or powers in Gaza as a general matter, and particularly not under the circumstances of the Great Return March, and Israel obviously has nothing like Egypt’s domestic police force or the US military’s post-war position in Iraq (even assuming that was a policing situation).  The Basic Principles are inapposite.

Even if Israel were occupying Gaza, even if Israel’s response to the Great Return March confrontations constituted a “police situation,” and even if the Basic Principles were actually binding law, Israel was still justified in using lethal force targeting Hamas terrorists.  Basic Principles acknowledges the obvious legitimacy of using lethal force to “prevent the perpetration of a particularly serious crime involving grave threat to life.”  Hamas attempted to commit and did commit several particularly serious crimes involving grave threat to life during the course of the Great Return March; they planted explosive (attempted murder) and threw Molotov cocktails and other incendiaries (attempted murder, arson, and the basis for a felony murder charge).

Under the circumstances, breaching the border between Hamas’s Gaza fiefdom and Israel is itself self-evidently an extremely serious crime. The “threat to life” is also clear, as Hamas has carried out fatal attacks (“involving grave threat to life”) upon breaching the self-same border for more than a decade, and explicitly intended to commit attacks on Israeli communities after breaching the border in this instance.

There was also an even more serious, indirect threat to life if the border were breached.  If Israel had held fire until a broad breach developed, or until some number of Palestinians actually crossed into Israel and approached either troops or an Israeli community, what then?  The same dilemma of when the threat becomes adequately fatal arises as at the border, exacerbated by the IDF’s inability to defend a fixed barrier and take the time to identify the terrorists among civilians.  Yet the IDF would not sit on its hands and would at some point be compelled to fire, with horrific results.  Had the border been breached in a meaningful way it would have inevitably led to far more Palestinian deaths, and a greater percentage of non-terrorist deaths, than actually occurred.

HRW misrepresents the “principle” as law and omits a portion of the principle that clearly justifies Israel’s use of force against terrorists. In an accountable legal setting, this would be sanctionable.

And absorbed as they were with condemning Israel, HRW, Amnesty and the UN ignore Hamas’s very real breach of human rights law that put Palestinians in danger in the first instance.  Hamas summoned, and according to some reports threatened and intimidated Palestinian civilians to appear at the Great Return March.  Hamas then hid its own combatants in the crowd, in civilian clothing.  From that protected vantage, Hamas directed and conducted combat operations to breach Israel’s border and kill Israeli soldiers.  This is a fairly straightforward violation of the unambiguous international law against use of human shields and in addition to Hamas’s habitual targeting of civilians.

HRW thus fabricated international law and Israel’s violation thereof while ignoring a concrete violation of international law by a terrorist organization.  In the process, they vindicated every accusation of bias and holding Israel to a double standard.

Having arrogated themselves the role of prosecutors, HRW should remember that such political prosecutions based on manipulation of law and facts is fatal to the legitimacy of the legal structure itself. Human rights law will collapse if it is or is seen to be either so malleable as to prevent obviously legitimate actions, or as merely a means of castigating the disfavored few.  If HRW and Amnesty want a robust, meaningful human rights regime they must act as responsible custodians of human rights law and stop fabricating willfully misapplying the legal standards to demonize and Israel and defend terrorists.

 

Jonathan Levin is an attorney and former counterterrorism analyst.  He has been published on National Review Online, American Thinker and Legal Insurrection.  Jonathan tweets @jnlevin.