Foreign Policy Research Institute A Nation Must Think Before it Acts Disproportionate Force in Gaza? Context Matters
Disproportionate Force in Gaza? Context Matters

Disproportionate Force in Gaza? Context Matters

Sixty-two Palestinians were killed last Monday on the Gaza-Israel border. According to Hamas, at least 50 of the 62 were members of the terrorist organization. The other 12, tragically, were, by all accounts, innocent civilians. Their deaths are deeply unfortunate.

What we most need now is tempered, thoughtful discussion, not polemics. And what is needed for thoughtful discussion is an appreciation of the larger context of these events.   I therefore propose to examine the use of force by the Israel Defense Forces on Monday, May 14, 2018, beginning with a brief historical review. Admittedly, historical events are inevitably subject to interpretation predicated on cultural, historical, political, and personal narrative.

Full disclosure: I served for 20 years in the Israel Defense Forces, including as the Legal Advisor to the Gaza Strip (1994-1997), and was involved in drafting rules of engagement and with legal questions concerning the fence separating Gaza and Israel. In addition, I was tasked with significant involvement in Implementation of the Interim Agreement between Israel and the Palestinian Authority[1] and have subsequently been invited to participate in Track II discussions.

The Narrative

The loss of life is tragic.

However, and the caveat is important, it is essential to carefully examine what led to the loss of life. It must be understood in its wider context and carefully scrutinized. It is easy to come to quick conclusions based on information, misinformation, and disinformation. Graphics, optics, and visuals convey powerful images and pictures — sometimes accurate, sometimes not. The rush to judgment is a natural inclination; the first to paint the narrative has the upper hand.

Former IDF Chief of Staff (and subsequently Minister of Defense) Moshe (Bogie) Ya’alon once stated the battle of the narrative is the most important battle. The Gaza conflict illustrates that decisively and the events of the past days make it crystal clear.

The pictures, screened world-wide, repeatedly and incessantly, were deeply troubling. They graphically depicted soldiers opening fire on civilians who, at least on the face of it, were unarmed, not posing a danger. The word massacre has been oft-mentioned. “Israel has lost its soul” has been on the lips of many.

Many American Jews feel disengaged, perhaps estranged, from Israel. There is much discomfort — spoken publicly and privately — in many quarters regarding what transpired in Gaza. The international community has widely condemned Israel. Critical voices have been heard in Israel. There has also been a noticeable silence, particularly in the Arab world. In the broader Middle East, only Turkey spoke loudly; the Palestinian Authority has largely remained silent as has the Palestinian street in the West Bank.

Background

Israel captured Gaza from Egypt in June 1967 during the Six-Day War; in that war, Israel also captured the West Bank, East Jerusalem, and Old City of Jerusalem, (from Jordan), the Sinai Desert (from Egypt), and the Golan Heights (from Syria). Whether Israel occupies the West Bank (and occupied Gaza) is a matter of perspective; that discussion is left to others and is not the focus of this essay.

From 1967 to 2005, the Gaza Strip was administered by an IDF Military Government; as with the West Bank, Israel did not annex Gaza in the aftermath of the Six-Day War. The IDF, until 1995, was responsible for both military and civil affairs in the Gaza Strip; after the signing of the Interim Agreement, the Palestinian Authority assumed responsibility for internal security and civil affairs while the IDF maintained control over Jewish settlements and maintained full military control of the sea, air and access to-and-from Israel.

Gaza has two borders, one with Israel, the other with Egypt at the Rafah crossing.  Egyptian-Hamas relations have been marked by tension and imposition of significant restrictions on travel into Egypt from Gaza, in large part owing to Egyptian concern regarding connections between Hamas and the Moslem Brotherhood.

In 2005, then Prime Minister Sharon decided on unilateral Israeli disengagement from the Gaza Strip.[2] As a result, 10,000 Jews who lived in Gaza were forced to leave their homes. The measure was highly controversial in Israel, leading to widespread demonstrations. Hamas then assumed control of the Gaza Strip after defeating the Palestinian Authority in democratic elections.[3]

Israel-Hamas relations are best described as violent — both physically and rhetorically — complicated, controversial, and complex. Although Israel exercises no direct control over internal Gazan matters, entrance into Israel for a Gazan is subject to a strict entry permit process, reflecting significant security concerns and in accordance with state sovereignty.

The claim, oft-made, is that Gaza is akin to an “open-air” prison: Israel controls access to the sea, maintains air superiority, and the IDF has a strong presence on the Israeli side of the border. Over the years, the IDF has undertaken military operations to respond aggressively to the firing of Qassam missiles or other terrorist activity emanating from Gaza. Successive Israeli governments claim these impact Hamas’ ability to conduct terrorist activity; their success is open to debate. The most recent, Operation Protective Edge, was highlighted by a massive shelling operation in Rafah, commonly referred to as “Black Friday,” resulting in widespread international condemnation of Israeli action.[4]

It is widely assumed the next Operation is but a matter of time. The so-called “winds of war” serve political interests of different parties, both in Israel and in Gaza. Hamas’ efforts to garner consistent international support result in  condemnation of Israel but do not translate into actual support for Hamas.

Larger geopolitical interests in the region, particularly Iran’s nascent nuclear capability, are deemed more pressing. In addition, any discussion regarding a two-state solution between Israel and the Palestinian Authority will require the latter to decide the nature of their relationship with Hamas and the Gaza Strip. This is an issue the PA has, to date, chosen to not address for reasons of internal Palestinian politics.

The result is that the residents of the Gaza Strip are the forgotten people of the region. Largely denied access to Egypt and Israel, engaged in mutual antipathy with the PA, suffering from high unemployment, a lack of economic opportunity for its overwhelmingly young population and subject to a strict religious orthodoxy imposed by Hamas, the population feels “trapped.”

Those sentiments are understandable.

The question is how Hamas addresses this and what messages it sends to its population.  However, the “Gaza question” is not a one-way street: successive Israeli governments, including the present Netanyahu government, have engaged Hamas in armed conflict, imposed hardships on the Gazan population and have engaged in persistent, cyclical wars of words, not to mention significant restrictions on access to Israel and Israeli markets.

Defense Minister Lieberman’s threat (before his appointment) to kill Hamas leader Ismail Haniyeh within 48 hours were he to be appointed Defense Minister is but an example.[5] As an aside, Lieberman was appointed Defense Minister six weeks after those remarks two years ago, and at the time these lines are written, Haniyeh is still alive. Sometimes words and action do not necessarily mesh; nonetheless, words are an important part of the Israel-Hamas conflict.

Without doubt, Israel merits criticism for some of the hardships confronting the Gazan population. However, it is sufficient here to state that the local population suffers, its leadership has failed it, the Palestinian Authority has largely washed its hands of Gaza, the Arab world is overwhelmingly disinterested and distracted, Israeli governments bear a degree of culpability for the present state of affairs, and, while much of the Western world blames Israel, largely absolving Hamas of any responsibility, it offers the local population very little — other than pointing an accusatory finger at Israel.

In other words, the conflict, at the end of the day, truly involves only Israel and Hamas, with the local population—which voted Hamas into power— stuck in a quagmire. The conflict, ultimately, is exclusively within the purview of Hamas and Israel because all other potentially interested parties either have washed their hands or have bigger fish to fry.

The long list—falling into either category—includes the US, Iran, the Palestinian Authority, and the Arab world. Turkey is an exception. Truth be told, Hamas has positioned itself into a corner with no help on the horizon. The condemnation of Israel does not translate into support for Hamas. This point cannot be repeated enough.

Fridays in April and May

In the weeks leading up to May 14, on Friday after Friday, thousands of Palestinians living in Gaza had been called by Hamas to come to the fence separating Gaza from Israel. Those who came, at Hamas’ beckoning, protested their living conditions, drawing attention to life inside the Gaza Strip. Some of the protesters tried crossing into Israel; others were literally standing by the fence.[6]

IDF soldiers posted on the Israeli side opened fire, casualties inevitably followed. The graphics were consistent, depicting Palestinians protesting near the fence, soldiers opening fire. The pattern repeated itself over the course of a number of Fridays. It was like a Greek tragedy, with the consequences known in advance.

Although not an “official” border, the fence is understood to be the demarcation line between Israel and the Gaza Strip. The fence was erected in the aftermath of the Interim Agreement between Israel and the Palestinian Authority, signed in the context of the Oslo Agreements that sought to bring permanent resolution to the Israeli-Palestinian conflict.

It was—and is—unclear what Hamas intended to achieve in calling residents of the Gaza Strip to the fence on Friday after Friday after Friday. If the purpose was to impact Israeli policy, resulting in lessened restrictions and fewer controls, then the effort failed; if the purpose was to garner international attention to the situation in the Gaza Strip, then the effort was, at least, in the short term successful; if the purpose was to mobilize the Arab World and galvanize the Arab Street, then the effort failed; if the effort was to embarrass the Palestinian Authority and its aging and reportedly unwell President, Abu Mazen,[7] then the effort largely failed.

In other words, while residents demonstrated near the fence and the IDF opened fire, killing and wounding a significant number of Palestinians, the intended audiences largely—not totally—turned a blind eye and focused on larger, more pressing issues, both in the region and internationally. In a risk analysis paradigm, President Trump’s decision to withdraw from the Iran nuclear agreement, much to the dismay of European allies, and possible negotiations with North Korea[8] demand attention and focus, largely taking the sails out of whatever winds Hamas tried to create.

Which leads us to May 14.

May 14, 2018

May 14 was not randomly chosen for the “call to duty.”

40 kilometers away, in an event marking a decision by President Trump that the writer of these lines defined as a “missed opportunity,”[9] the US embassy was opened in Jerusalem. But, again, history is important: on May 14, 1948, the State of Israel was proclaimed as an independent state.[10] That day is defined as the Nakba[11]—Day of Catastrophe—by the Palestinians. A day of celebration for Israelis is exactly the opposite for Palestinians.

Both prior to the events and in the days thereafter, it was clear what was going to happen. The words of surprise, the expressions of shock, the sounds of anger were, frankly, what most surprised me. The two main protagonists had clearly, consistently, and unapologetically articulated exactly what was going to occur.

In other words, the trajectory of events was known in advance. In a perverse fashion, the interests of both sides—particularly of the respective leaderships—were met.

40,000 Gazans answered the “call to duty.” What exactly the call was, much less the duty, is unclear. The call was not to engage in peaceful protest; this was not civil disobedience in the spirit of Dr. Martin Luther King, Jr. or Mahatma Gandhi. Any effort to “paint” the gathering in such a light is disingenuous. Not even Hamas portrayed the events in such a light. Quite the opposite.

This was a determined challenge by members of a terrorist organization, some with arms—-certainly not equal to those possessed by the soldiers standing on the other side of the fence—to cross into Israel for the purpose of committing acts of terrorism.[12] The essence of sovereignty is to protect your borders, thereby protecting your civilian population—Jew, Christian and Muslim alike—-from terrorists. That, in and of itself, is established and accepted international law. There is nothing particularly sophisticated or nuanced in this concept. Self-defense is as old as the nation-state. Actually, it traces its roots to the Old Testament.[13]

Did Hamas expect Israel to passively enable terrorists to cross the fence, penetrating into Israel? Of course not. Did Hamas leadership willingly sacrifice members and non-members alike for the greater cause (however defined)? Without a doubt. Does Hamas leadership carry bear responsibility for the deaths? Absolutely.

But, that is only a piece of the puzzle. The other piece is to examine the actions of Israel and the IDF.

Israel had repeatedly warned residents of the Gaza Strip not to approach the fence, making it very clear that doing so would be deemed as justifying an armed response. In other words, warning—as required by international law—-was given. It was given repeatedly.[14] Those warnings were deliberately ignored.

The question has been posed, and correctly so, whether non-lethal means would not have been preferable as opposed to engagement by strategically positioned snipers. That is a fair and legitimate question from two distinct perspectives: whether the open-fire order was proportional to the threat and whether the optics cast doubt on the wisdom, distinct from the legality, of the decision.

I begin with the optics.

The easy answer is, “of course.” The more nuanced answer is murkier. The previously referenced deafening silence in the Arab world was immediately followed up by a joint Qatar-Egyptian effort to restore quiet to Gaza; that proposal was quickly accepted by Hamas.[15] If that is indeed to result in Hamas disarmament or at least a modicum of quiet, then an argument can be made that the unapologetic use of force had a positive impact. Whether that was intended or not is unknown. Nevertheless, it must give us pause regarding the distinction between short-term optics (in Hamas’ favor) and the strategic consequences (not necessarily in their favor).

As to the question of proportionality: the easy answer, predicated exclusively on a “numbers analysis” is that Israel violated international law and that the collateral damage is unjustified. That is an argument that has been consistently voiced and, safe to assume, will be heard again. The criticism appears legitimate, given the numbers. While there have been calls for an international inquiry, including demands to try Israeli soldiers for “war crimes,” perhaps a more nuanced and sober analysis would focus on one question: in the face of 40,000 protestors—some armed with clear aggressive intentions—what is a nation-state to do?

If — and the condition is critical — the determination was made that non-lethal means, after repeated warnings, would not effectively prevent penetration, then opening fire would be justified. Important to recall, the IDF did not use all the weapons in its arsenal; the shooting was not “mass shooting” but rather was sniper fire aimed at those deemed posing a direct threat.

However, it is also clear that engagement resulted in the deaths of individuals who cannot be so categorized. In examining the proportionality dilemma, it is for those deaths that Israel must respond. To that end, the casualties—killed and wounded—must be divided into two categories. That is a responsibility Israel must assume in order to assess its decision making and on-the-ground conduct.

If open-fire orders were violated, then those responsible must be addressed accordingly. In the same spirit that Hamas must respond to those residents it sent to the fence, the IDF must ask itself whether the response was proportional or if alternative measures (non-lethal) could have been implemented before open-fire orders were given.

These are weighty questions that demand rational, tempered discussion. While one hopes that the Qatar-Egypt effort will prove successful, in the meantime both sides must ask themselves difficult, and painful, questions. What is clear, once the external “noise” fades, is that the battleground, as always, remains in the exclusive purview of the protagonists.

Moreover, absolutes are elusive, true discussion demands nuance, and simple framing in black-and-white terms is disingenuous and not constructive.


[1] https://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israeli-palestinian%20interim%20agreement.aspx, https://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/agreement%20on%20gaza%20strip%20and%20jericho%20area.aspx

[2] https://www.washingtonpost.com/wp-dyn/content/article/2005/08/10/AR2005081000713.html

[3] https://www.theguardian.com/world/2006/jan/26/israel1

[4] https://blackfriday.amnesty.org ; https://www.haaretz.com/opinion/editorial/investigate-black-friday-1.5488109

[5] https://www.haaretz.com/israel-news/.premium-has-lieberman-killed-haniyeh-yet-check-the-website-1.5388907

[6] https://972mag.com/following-deadly-march-hundreds-of-israelis-rally-for-gaza/134256/, https://www.nytimes.com/2018/04/20/world/middleeast/gaza-protest-deaths.html, https://www.xinhuanet.com/english/2018-04/07/c_137092754.htm

[7] https://www.ynetnews.com/articles/0,7340,L-5265849,00.html

[8] scheduled for June 12 at the time these lines are written

[9] https://www.deseretnews.com/article/900005272/utah-expert-calls-trump-move-on-israel-a-missed-opportunity.html

[10] https://www.knesset.gov.il/docs/eng/megilat_eng.htm

[11] https://www.aljazeera.com/indepth/inpictures/nakba-day-catastrophe-observed-palestinians-180516113024358.html

[12] https://www.jpost.com/Arab-Israeli-Conflict/50-Hamas-members-reportedly-killed-during-Mondays-Gaza-protests-556627

[13] https://www.patheos.com/blogs/christiancrier/2016/06/29/top-7-bible-verses-about-self-defense/

[14] https://www.haaretz.com/middle-east-news/palestinians/.premium-iaf-drops-flyers-warning-gazans-to-avoid-border-as-protests-ramp-up-1.6078410

[15] https://www.haaretz.com/israel-news/.premium-egypt-qatar-working-on-long-term-ceasefire-hamas-disarmament-in-gaza-1.6097400

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