The inconvenient truth about Gaza

By Curtis Doebbler

The foot dragging of Palestinian diplomats in
the face of Israel’s Gaza onslaught suggests
that, for some, ending Hamas is more important
than ending the violence, writes Curtis Doebbler.When a state resorts to the use of force it enters
a process wherein the truth is often blurred and
intentionally distorted. Israel’s use of force
against the Palestinian people in Gaza is a
classic example.

The Israeli government has invented terminology
and ideology to claim that it is acting in the cause
of self-defence. Indeed, self-defence is a justification
for an otherwise illegal act under international law,
but only when one state has been attacked by
another state. Israel was not attacked by the
Palestinian people or even by Hamas.

Instead, Israel has been for more than
60 years the illegal occupier of Palestinian
land and the Palestinian people living on
it or forcefully internally displaced. In
maintaining this occupation, Israel has
ignored dozens of UN Security Council
and General Assembly resolutions and
has created such inhumane conditions
for the Palestinian people that these
conditions might reasonably be said to
be intended to destroy the Palestinian
people in whole or in part. Indeed,
tens of thousands of Palestinians have
been killed either by direct Israeli aggression
or by the conditions that have been imposed
upon them. Even in the last few months,
the inhumane embargo that Israel has
imposed on Gaza, which restricted even
umanitarian necessities, has been
esponsible for the deaths of dozens of civilians.

For more than 60 years the Palestinians
have resisted this illegal occupation - as
they are entitled to do, under well-agreed
rules of international law by all necessary
means. While international law allows non-state
actors fighting for their self-determination to
use force, it also imposes a responsibility to use
force in manner that respects the laws of war.
For example, civilians cannot be targeted either
intentionally or through indiscriminate means.
Israel has argued that Hamas rockets are targeting
civilians. Hamas has responded by confirming that
its own policies of engagement with the illegal
occupier rohibit targeting innocent civilians. Some
international observers have claimed nevertheless
that the firing of rockets with limited accuracy
violates the prohibition of the use of indiscriminate
weapons. Whatever the correct answer might be,
no action by Hamas would justify violations of the
laws of war by Israel, especially on the much
grander scale that has taken place in recent days.

Even if the Israeli self-defence argument focused
on its use of force being a response to Hamas
rocket fire, it would clearly fail any test of
international law. First of all, back in December 2008,
it was Israel, not Hamas, that first breached the
ceasefire between these two actors. Israel did so
by carrying out attacks on targets in Gaza.
In fact, in aftermath, it seems plausible that
Israel’s attacks were intended to provoke a
Hamas reaction, as they did. And it was to this
reaction that Israel responded with
disproportionate force.

Israel’s disproportionate use of force violates
the most fundamental principles of international
law in numerous ways. First, it is a violation of
the laws of war to use disproportionate force
against an occupied people. This violation is
amplified when it is done with the goal of
denying the occupied people their
self-determination. Therefore, second,
Israel’s action constitutes a violation of the
right to self-determination. And, finally, Israeli’s
intentionally disproportionate use of force against
part of the Palestinian people that has killed or
wounded a significant percentage of those people
is significant evidence that thecrime of genocide
is being committed.

But despite these clear legal truths, and
despite the fact that the world is once again
witnessing the
horrific crime of genocide, there is no international
outcry to have the International Criminal Court
investigate the many Israelis involved in these
actions and the many other international officials
who have been complacent in allowing
— sometimes supporting — these actions.
The Security Council forced the International
Criminal Court to take action against Sudan
for alleged genocidal acts, even after the Council’s
own investigative teamfound no grounds for
claiming genocide had taken place. Why is there
no such action against Israel? Why doesn’t the
UN General Assembly at least form a body to
investigate Israel’s crimes, as it is entitled to do
under Article 22 of the UN Charter?

Even the Western news media seems to ignore
the truth provided by the rules of international law,
often feigning ignorance of the law — as if that is
a defence for them — or sometimes merely claiming, arrogantly, that the law is irrelevant, despite the
fact that these rules have the consensual
agreement of the international community
and have been tried and tested over hundreds
of years. CNN shows pictures of what clearly
appear to be cluster bombs being used by
Israel in civilian areas, but doesn’t even
suggest that such an action is a very serious
violation of international law. When CNN
was confronted with its “mistake”, it merely
claimed the truth of the law was irrelevant.
Having been trained by two American wars
with Iraq and one American war with Afghanistan,
in which the majority of news reported was
from under the wing of the US military,
perhaps nothing better could be expected.
In war, the truth often appears irrelevant.

Sometimes in war, the truth is also inconvenient.
This is likely why not only the Western press but
even the Arab press has shied away from obvious
signs indicating that Arabs and even Palestinians
themselves have contributed to Israel’s inhumane
rampage of violence through Gaza. Few Palestinians
— or knowledgeable observers of any persuasion
— could imagine that Israel could attack Gaza in
the midst of negotiations with the Palestinian
government represented by Fatah without the
knowledge and consent of senior Fatah officials.
While Fatah’s official line, right to the top where
President Mahmoud Abbas sits, has been that it
opposes the Israeli invasion of Gaza, it has done
little to stop it. One Palestinian diplomat asked
what would be done deferred the matter until
after the holidays.

From the Palestinian Permanent Mission to the
United Nations in Geneva — where the UN’s
main human rights bodies sit — has come an
ominous silence. The Mission did not even respond
to requests for any statement they might have
made in relation to the situation in Gaza, and
none could be publicly found a week into the
Israeli aggression. A week into the worst aggression
ever carried out against the Palestinian people in such
a short period of time there was no call for a special
session of the Human Rights Council, no harsh
condemnation of Israel’s actions. The diplomats
in Geneva were possibly busy enjoying the holidays.
Meanwhile, the Palestinian Permanent Mission in
New York has pushed for UN Security Council action,
but that is all. Informed observers within the UN
have wondered out loud why the Palestinians have
not pushed for quick General Assembly action.
Even the newest ambassadors to UN headquarters
know that the US will block any action against Israel,
as they have done in the past in relation to Israel’s
use of force against US assets.

Malaysian Prime Minister Datruk Seri Abdullah
Ahmad Bedawi, on the other side of the world,
recognised that only the world body’s most
democratic body, the General Assembly, could
break through the impasse caused by the US
veto threat in the Security Council. He — not
the Palestinians or Arab countries — was the
first to call on the UN to urgently convene a
special emergency General Assembly session.
Such a session can be convened with one day’s
notice when either a majority nine members of
the Security Council vote to convene such a
session (in a vote where no veto is possible)
or when 97 or more states of the UN General
Assembly make such a request. His call was
received cautiously by the Palestinian government
and has thus stalled. President Abbas seems to
be more concerned with how he might reassert
Fatah authority over Gaza.

First, Abbas ironically, in the midst of the attack
on Gaza, issued an invitation to Hamas to negotiate
a national unity government. He did this despite
still not having replied to a Hamas proposal to form
a unity government delivered to him six months ago.
When a politically independent Gaza City resident
was told about this proposal he asked if Abbas’s
offer had been delivered among the propaganda
leaflets that Israel is dropping from planes
over besieged Gaza.

Second, although lauding himself as the elected
Palestinian president, according to a Lebanese
newspaper Abbas has ordered 2,000 Fatah
militants to the border with Gaza, apparently
with Israeli and Egyptian permission, to overrun
the elected government of Prime Minister
Ismail Haniyeh in Gaza. One might even
speculate that Mohammad Dahlan, whose
failed coup attempt against Hamas in Gaza
precipitated many of the current events, might
be at the head of this “fifth column”.

That Western powers ignore the will of the
Palestinian people as expressed through elections
for which Western observers vouched is not surprising,
but that Fatah will go to the length of cooperating
with Israel to displace the elected Hamas officials
who they have already confined to Gaza is
extraordinary. Can the Fatah leadership really
believe that Palestinians will want to be governed
by people who support the occupier’s killings of
Palestinians? If this is not what Fatah is doing,
it certainly looks that way to many Palestinians
and informed international observers. And if we
are all wrong, why doesn’t Fatah do something to
change — or at least denounce — this impression.
Instead it has made meaningless statements of
support for the Palestinian people while taking
little action and even blocking others’ actions
to protect the Palestinian people.

Finally, perhaps the most troublesome “irrelevant”
and “inconvenient” truth is that those defending
the Palestinian people’s right to self-determination
from the onslaught of Israel’s violence are the very
people that the international community, the Israelis,
the Americans, and Fatah, have been almost
completely unwilling to speak with for months.
Encouraged to become a political party by the
same people who won’t speak to it today,
Hamas won a landslide victory in the last elections
held in Palestine in 2006. Having won a clear and
absolute majority, Hamas first mooted the possibility
of a coalition government —an olive branch rejected
by an insulted Fatah leadership that believed it had
a hereditary right to rule. When Hamas tried to go
it alone, the majority Fatah civil service refused
to cooperate. When things became unmanageable,
Hamas again offered to form a unity or coalition
government. But this was still not good
enough for Fatah whose strongmen, like Dahlan,
felt compelled to reverse the democratic will of
the Palestinian people and try to bring Hamas
down by force.

Even with the US and EU in support, they failed.
Hamas retreated to it role as a resistance group
entrenching itself in Gaza. Abbas was furious.
Everything he did may never be known, but the
fact that as Gaza burns he appears at dinners with representatives of the US, Europe and Israel,
apparently nonchalant about the horrors his
people are confronting, is revealing. So too is
the foot dragging of the Palestinian government
over which he presides in ending the ongoing
genocide in Gaza. Hamas’s position on the other
hand, has remained consistent: it will never give
up its struggle to claim the right of the Palestinian
people to self-determination in the whole of Palestine.
Indeed this claim confronts the Western powers
that sold Palestinian land and the Palestinian people
into the slavery of Israeli occupation. But it is a claim
— the right to self-determination to be exercised by
all the people in the region of Palestine that includes
both what is today Israel and the occupied territories
— that is a legal right that all states have agreed to
in law, although these same states find it inconvenient
to apply this law to Palestine.

Israel’s attack on Gaza and the response of the
international community and the Palestinians of both
Fatah and Hamas has brought into stark contrast these inconvenient truths that will have to be faced by the international community and the Palestinian people.

Curtis Doebbler

The writer is an international human rights lawyer
and professor of law at An-Najah National University,
Nablus, Palestine.