Introduction

The international community unleashed a new round of Israel-bashing at the U.N. General Assembly on June 14, 2018, on the issue of the Hamas-generated riots and demonstrations along the border fence between Israel and the Gaza Strip.

The Hamas terror organization governing Gaza, with the willing support and cooperation of the Ramallah-based Palestinian Authority/PLO, has reached the conclusion that it is a worthwhile endeavor to pollute the air with burning tires, fly exploding kites towards Israel, and incite civilian residents of the Gaza Strip, especially women and children, to participate in a weekly ritual of charging toward the Israel-Gaza border fence.

While ostensibly conducting a “Grand March of Return,” Hamas’s real motive, as admitted by Hamas leaders, is to utilize the civilians as human shields for Hamas operatives to attach explosive devices to the border fence, lob explosive devices at Israeli border guards, ultimately destroy and breach the fence, penetrate into Israel, attack Israelis and “liberate Jerusalem.”

This asymmetrical warfare goes on at the same time as the more conventional war via rockets, attack tunnels and special forces, such as naval commandos. The tunnels are just meters below the ground protests.

The two offensive operations are conducted simultaneously, and one complements the other.

Gaza incendiary balloon
A Gaza incendiary balloon sent over the border fence to Israel. (Arab Press)

Gaza incendiary balloon

Manipulation of the international community

Evidently, as seen by the international outcry against Israel for reacting to these hostile demonstrations, images of fatalities and injured Palestinians guarantee immediate and maximal media coverage and automatic condemnation of Israel by E.U. Foreign Affairs Representative Federica Mogherini, European leaders, the U.N. Human Rights Council, the United Nations and others.

In this context, the Palestinian leadership has “jumped onto the Hamas bandwagon.” It is actively engaged in its own diplomatic warfare through an aggressive public relations campaign to have Israel accused, in the international media and various U.N. bodies, of war crimes and violations of the Geneva conventions, and in its handling of the Gaza border fence violence.

The Palestinian foreign minister was even sent to the prosecutor of the International Criminal Court (ICC) to issue a formal complaint and request to open an investigation against Israeli leaders and commanders.

On June 1, France, Russia, China, Sweden and others supported a Kuwait-sponsored draft resolution in the Security Council deploring Israel’s use of “excessive, disproportionate and indiscriminate force” against Palestinian civilians, and condemning the use by Israel’s forces of live ammunition against civilian protesters. It sought to call upon the United Nations to act to “guarantee the safety and protection of the Palestinian civilian population, including recommendations for an international protection mechanism.”1

The call in the opening provision of the draft resolution to respect international human-rights law and international humanitarian law, would appear to be all the more cynical in light of the flagrant violations by the Palestinian leadership and Hamas of international humanitarian and human rights law. This is especially the case with their willful and deliberate use of women and children, pollution of the environment, and burning and destruction of crops and agricultural produce.

Despite its failure in the Security Council due to an American veto, this resolution was subsequently presented to the U.N. General Assembly by Algeria, Turkey, and the “State of Palestine.”2 The Assembly convened on June 13 in a renewed Emergency Special Session—a session that since 1997 has remained open solely in order to adopt periodic resolutions dedicated to condemning Israel.

This Emergency Special Session adopted the resolution by an automatic majority of 120 states voting in favor (including Norway, Switzerland and New Zealand), eight against and 45 abstentions. This resolution not only exonerates Hamas from any responsibility for the incitement, the riots, demonstrations and fatalities, but clearly gives tacit encouragement to Hamas and others to continue, knowing they can do no wrong in the eyes of the European Union and the United Nations.

In this context, the typical, selective blindness to the realities of the Gaza situation was demonstrated notably by the E.U. representative who, despite the glaring facts, chose to view the Hamas activities as a “peaceful protest” and rehashed the canards that “Israel must respect the right to peaceful protests” as well as the fatuous and meaningless stricture that Israel must employ “the use of proportional measures when protecting its legitimate security interests.3

The Assembly rejected a U.S. amendment that proposed adding the following paragraph:

Condemns Hamas for repeatedly firing rockets into Israel and for inciting violence along the boundary fence, thereby putting civilians at risk, demands that Hamas cease all violent activity and provocative actions, further condemns the diversion of resources in Gaza to construct military infrastructure, including tunnels to infiltrate Israel and equipment to launch rockets into civilian areas, when such resources could have addressed the critical needs of the civilian population, and expresses grave concern about the destruction of the Kerem Shalom crossing by actors in Gaza.4

 

Despite this clearly flawed, biased, and one-sided resolution, and the associated statements by European and other leaders, it is all the more curious to observe the evidently deliberate disregard by all the various leaders and organizations, of the serious and flagrant international humanitarian, environmental, and ecological crimes generated, committed, and supported by Hamas and the Palestinians.

The responsibility of the Palestinian leadership

While Hamas and the Fatah-led Palestinian Authority are at loggerheads, the Palestinian Authority is utilizing this situation to conduct its own political and legal campaign against Israel in international bodies. This renders the Palestinian leadership an accessory to Hamas in the commission of various humanitarian, environmental, and ecological crimes.

This is all the more evident because since January 2015 the Palestinian Authority, under the guise of “The State of Palestine,” has been accepted by the international community as a state party to many international conventions.5 The fact amplifies the criminal responsibility and liability of the leaders of the Palestinian Authority and Hamas for the violation of the obligations of the very conventions to which they are party.

International conventions violated by the Palestinians

Notwithstanding the patently transparent and one-sided Palestinian PR campaign, supported and encouraged by Arab states and fueled by the U.N. Human Rights Council, European leaders, and the European Union, it is instructive to analyze the relevant instruments of international law being flagrantly violated by the Palestinians in the context of their organization, incitement, encouragement, and support of the violent events along the Gaza border fence.

Environmental pollution, ecological and humanitarian crimes

By initiating, encouraging, and supporting mass pollution of the border area with caustic carbon fumes through the organized stockpiling and burning of tires, the Hamas leadership and the Palestinian Authority are responsible for repeatedly creating caustic clouds of carbon pollution. This act is damaging to the health of the Palestinian civilian demonstrators themselves, as well as the residents of Israeli communities in the vicinity of the border.

Palestinians ignited tires to provide a smokescreen for terrorists seeking to breach Israel’s border defense.

The Gaza assault on Israel’s border fence.

The smoke tactic pollutes and poisons the environment and atmosphere in utter disregard of the major concerns of the international community over environmental protection, as expressed in international treaties and resolutions of various bodies involved in protecting the environment.

While, clearly, the Palestinian leadership pays no regard to such environmental and ecological norms, what is no less instructive is the fact that no international leader or organization, environmental or other, has found it necessary to relate to these violations of international law.

Agricultural terror

Encouraging, inciting, and organizing Palestinians, to build, arm and fly incendiary kites and balloons over Israeli territory is a glaring violation of environmental norms and principles of international humanitarian law.

The building, distributing, and launching of incendiary kites are part of an organized Hamas terror tactic.

This is especially in light of the declared aim of Hamas to use such ostensibly harmless kites and balloons to ignite vast swathes of agricultural land in Israel, destroy crops, and endanger Israeli residents of towns and villages in the border areas. Moreover, reports suggest that Hamas requisitioned helium gas, supplied by Israel, from Gaza hospitals to provide lift for the balloons.6

Abuse of children in violation of International Humanitarian Law

From the fundamental viewpoint of international humanitarian law and accepted norms of humanity, placing Palestinian civilians, and especially women and children, at the forefront of the violent demonstrations and attacks on the border fence as human shields to conceal the presence of Hamas terrorists is a cynical and cruel violation and abuse of such women and children.

This is in violation of several international treaties protecting children and prohibiting their involvement in warfare, to which the “state of Palestine” is party, and thus committed to implementing.

Palestinian violations of the Oslo Accords

Pursuant to the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (commonly known as “Oslo 2”), and specifically in the third annex to that agreement dealing with civil affairs, the Palestinians are obligated to “act for the protection of the environment and the prevention of environmental risks, hazards, and nuisances, including all kinds of soil, water, and air pollution.”

In this context, both Israel and the Palestinians are committed “to respond to events or accidents which may generate environmental pollution, damage, or hazards” as well as to “promote public awareness on environmental issues.7

By encouraging, organizing, and openly supporting caustic air pollution and the burning of Israel’s agricultural infrastructure, the Palestinian leadership, together with Hamas, bears full responsibility for flagrantly violating their obligations pursuant to the Oslo Accords.

It is surprising that the EU leadership, as well as Russia, Norway, Egypt, and Jordan, all signatories as witnesses to the Oslo Accords, as well as the United Nations, which endorsed the accords, have found it neither appropriate nor sufficiently important to intervene vis-à-vis the Palestinians to prevent such violations of the accords.

To the contrary, they have preferred to close a blind eye to these Palestinian violations, and rather to accuse Israel.

Palestinian war crimes and violations of International Humanitarian Law, Statute of International Criminal Court

The ICC Statute defines as a war crime and grave breach of the Geneva conventions “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.8 It regards as war crimes “intentionally directing attacks against the civilian population not taking direct part in hostilities as such or against individual civilians,” as well as the destruction of property.9

The components of this crime, as set out in the ICC documentation, include the wanton and extensive destruction of such property and “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment, which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”10

Attacks causing death or injury to civilians or damage to civilian objects “or widespread, long-term, and severe damage to the natural environment,” as well as “destroying property not demanded by the necessities of war” are clearly labelled as war crimes, especially when “the perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term, and severe damage to the natural environment and that such death, injury, or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”11

Additional violations of international law committed by the Palestinian leadership and Hamas in the context of their Gaza activities include the “wanton destruction of property, outside the necessities of war12 and the “employment of asphyxiating, poisonous, or other gases.”13

Violation of the 1997 Terrorist Bombings Convention

Weaponizing kites and balloons by attaching explosive devices with the intention that they will explode upon landing or when found by Israeli civilians is all the more a flagrant and treacherous violation of international humanitarian law, notably the 1997 Convention for the Suppression of Terrorist Bombings.14

This convention, to which, curiously enough, the Palestinians have chosen not to become party, criminalizes in international law the “unlawful and intentional delivery, discharging or detonating of an explosive or other lethal device in, into, or against a place of public use, a State or government facility, a public transportation system, or an infrastructure facility with the intent to cause death or serious bodily injury; or to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss.

One would expect that the United Nations and other international organizations involved in counter-terrorism would find it appropriate to censure and sanction the Palestinian leadership on its adoption and use of such illegal weaponry.

Palestinian Violations of the 1907 Hague Convention Respecting the Laws and Customs of War on Land

Since the Palestinian leadership acceded on April 2, 2014, to the 1907 Hague Convention,15 which constitutes one of the major pillars of the laws of armed conflict, Palestinian support, encouragement, and active involvement in the violence along the Gaza border fence constitute violations of this convention and invoke clear Palestinian responsibility.  This convention attaches such responsibility “not only to armies, but also to militia and volunteer corps.16

The convention prohibits the use of poison or poisoned weapons and the use of arms, projectiles, or material calculated to cause unnecessary suffering, as well as attacking or bombarding “by whatever means,” towns, villages, dwellings, or buildings that are undefended.17

Violations of the 2001 Conventional Weapons Convention: Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons18

The Palestinian leadership, which acceded to this Protocol under the name of “The State of Palestine” on January 5, 2015, is bound by its definitions and prohibitions, and therefore responsible for violating its provisions.

In this Protocol, an incendiary weapon is defined as “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target.” “Such weapons can take the form of, for example, flame throwers, fougasses, shells, rockets, grenades, mines, bombs, and other containers of incendiary substances.”19

In its substantive provisions, this protocol prohibits “making the civilian population as such, individual civilians or civilian objects, the object of attack by incendiary weapons,” as well as “making forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal, or camouflage combatants or other military objectives, or are themselves military objectives.”20

The fact that the Palestinians are party to this convention and its optional protocol place a heavy burden of liability on the heads of the Palestinian and Hamas leadership for their involvement in initiating and supporting the use of incendiary materials in their actions against Israel.

Palestinian Violations of the 1977 Protocol I to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts21

With the Palestinian accession to this instrument on April 2, 2014, they took upon themselves full responsibility for any violations.

Thus, their activities along the Gaza border fence violate a number of provisions of this protocol, especially Article 35, dealing with the protection of the natural environment, which prohibits employment of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment.22

In its official commentary to this provision, the International Committee of the Red Cross (ICRC) added that “the use of incendiary weapons is prohibited in forests and other types of vegetation, unless these constitute military objectives or conceal military objectives.

Furthermore, “any method or means of warfare which are planned to cause, or may be expected (albeit without the intention) to cause serious damage to the natural environment, even if this effect is incidental, are prohibited.23

Referring to the transboundary dangers to crops, flora, and fauna by the use of incendiary weapons, the commentary goes on to state:

Because of the transnational aspect of this problem, in particular, the prohibition is absolute; it even continues to apply in the absence of any direct threat to the population or to the flora and fauna of the enemy State. It is the natural environment itself that is protected. It is common property, and should be retained for everyone’s use and be preserved.24

On the issue of protection of the natural environment, article 54 of the Protocol prohibits “attacking, destroying, or rendering useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations, and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population.

Abuse of Children

Palestinian Violations of the 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the Involvement of Children in Armed Conflict, as well as the ICC Statute and Protocol I to the Geneva Conventions

Since the Palestinian leadership became party, on April 2, 2014, both to the Convention on the Rights of the Child25 and to its optional Protocol on the Involvement of Children in Armed Conflict,26they are committed to ensure that children under 15 do not take a direct part in hostilities and that “armed groups, distinct from the armed forces of a State, should not under any circumstances recruit or use in hostilities persons under the age of 18 years.”27

The prohibition on the recruitment of children also appears within International Humanitarian Law, and specifically in Article 77 of the above-noted Protocol I to the Geneva Conventions,28 as well as in the listing of international crimes in the ICC Statute. According to the Statute, “conscripting or enlisting children under the age of 15 years into the national armed forces or using them to participate actively in hostilities” is a “serious violation of the laws and customs applicable in international armed conflict within the established framework of international law.29

Teens training in tunnels at Hamas camp, 2015 (Palestinian Center for Media)

Hamas “camp activities” for children
Hamas “camp activities” for children.

Hamas “camp activities” for children

The fact that Hamas proudly advertises images of thousands of child soldiers trained by Hamas in camps in various stages of warfare and “graduation” ceremonies that include attacking mock Israeli bases and kidnapping and stabbing soldiers, storming through tunnels, and running army obstacle courses, is very indicative of the blatant abuse and disregard by the Palestinians of their own solemn international obligations.

The fact that the international community chooses to turn a blind eye to such flagrant abuse of fundamental international norms and prefers to accuse Israel is instructive.

Conclusion

The Palestinian leadership must be made to understand that its fixation with joining international treaties as a means of amplifying its perception of statehood, is not unidirectional.

It involves solemn responsibilities to abide by the obligations included in such treaties, as well as to actively prevent and take responsibility for violations.

A parallel responsibility lies with the international community that has so eagerly welcomed the accession by a non-existent Palestinian state to tens of major international treaties as a means of pampering what they see as a “moderate” Palestinian leadership. This “moderate” Palestinian leadership is presently encouraging, supporting, inciting and advocating mass pollution of the environment, gross abuse of the rights of children, and extensive ecological damage.

The onus lies on rational states to hold the Palestinian leadership to their commitments, without political concessions and without closing a selective blind eye to their violations.

The ease with which the international community has so willingly associated itself with a false Palestinian narrative attaching full blame and responsibility to Israel for the Hamas-generated violence along the Israel-Gaza border fence, while not new, should be of concern to all.

The leaders of the European Union and other members of the international community must take a step back in order to view the situation in a more realistic manner in light of the flagrant violations by the Palestinians of some of the most fundamental norms and principles of international law that the European Union and other leaders hold so dear.

Ambassador Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.

* * *

Notes

1 UN Security Council document S/2018/516 of June 1, 2018

2 https://documents-dds-ny.un.org/doc/UNDOC/LTD/N18/177/58/PDF/N1817758.pdf?OpenElement

3 https://www.un.org/press/en/2018/ga12028.doc.htm.

For a recent analysis of the accusation of “disproportionate force” by Israel in Gaza see “Did Israel Use “Disproportionate Force” to Protect the Gaza Fence?” May 28, 2018 http://jcpa.org/article/did-israel-use-disproportionate-force-to-protect-the-gaza-fence/

4 http://undocs.org/en/A/ES-10/L.24

5 Despite well-founded reservations to the legally flawed process by which the “state of Palestine” was accepted as a “state” party to the ICC Statute and to other international conventions, when no such state exists and the permanent status of which is an agreed negotiating issue between Israel and the Palestinian leadership. See “Palestinian Manipulation of the International Criminal Court” http://jcpa.org/will-the-international-criminal-court-disregard-international-law/. See also “The Palestinian U.N. Upgrade: Setting Things Straight” http://jcpa.org/article/the-palestinian-un-upgrade-setting-things-straight/

6 Helium requisitioned. http://www.israelnationalnews.com/News/News.aspx/247345

7 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,  Annex III – Protocol Concerning Civil Affairs, Article 12, paragraphs 4, 15 and 17

http://www.mfa.gov.il/MFA/ForeignPolicy/Peace/Guide/Pages/THE%20ISRAELI-PALESTINIAN%20INTERIM%20AGREEMENT%20-%20Annex%20III.aspx

8 https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf Article 8(a)(iv)

9 ICC Statute, op. cit. article 8(2)(a)

10 Elements of Crimes document https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf.

11 ICC statute, article 8(2)(b)(iv) as detailed in the Elements of Crimes document

12 ICC statute, Article 8 (2) (b) (xiii)

13 Ibid Article 8 (2) (b) (xvii)

14 https://www.unodc.org/documents/treaties/Special/1997%20International%20Convention%20for%20the%20Suppression%20of%20Terrorist.pdf

15 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=195

16 1907 Hague Convention, article 1 http://www.opbw.org/int_inst/sec_docs/1907HC-TEXT.pdf

17 Ibid, art. 23, 25

18 CONVENTION ON PROHIBITIONS OR RESTRICTIONS ON THE USE OF CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS

https://www.unog.ch/80256EDD006B8954/(httpAssets)/40BDE99D98467348C12571DE0060141E/$file/CCW+text.pdf

19 ibid, article 1(a) and (b)

20 Ibid, article 2(1) and (4)

21 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=D9E6B6264D7723C3C12563CD002D6CE4 at paragraphs 1440-1

22 Ibid Article 35(3)

23 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=2F157A9C651F8B1DC12563CD0043256C

24 Ibid at para 1442

25 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=B92BDC3CAE1B142DC12563CD002D6E8C&action=openDocument at article 38, referring to children under 15, which raises the limit to the age of 18

26 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=24CAD49E85523D5941256937002F7220&action=openDocument

27 Optional Protocol, Ibid at article 4

28 Op. cit. footnote 17

29 ICC Statute, op. cit. at article 8(2)(b)(xxvi)