Let's talk about "Gaza Protests Are State of War, Human Rights Law Doesn't Apply"

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By Kathryn Shihadah

The topic of Israel generates a distinctively unified spin in mainstream media and among politicians (with a few notable exceptions). Sometimes that spin is so cleverly disguised that it is almost invisible.

There's a lot at stake in this issue: Palestinian lives, Israeli lives, freedom, justice, and democracy - and over $10 million a day. That's not a typo. That's how much we give Israel in military aid EVERY SINGLE DAY. $3.8 billion a year.  If all that cash is going somewhere other than back to American taxpayers, I want to know whether it's being spent responsibly. I want facts, not spin.

I've written in the past, as have others, to expose some of the omissions, half-truths, and downright lies in news articles and in the words of the people they quote.

This piece from Ha'aretz by Yaniv Kubovich, "Israel to Top Court: Gaza Protests are State of War, Human Rights Law Doesn't Apply," caught my eye. The title itself is startling: Israel is dictating to its Supreme Court? - doesn't the Court have the last word? "State of war"? - they call that a war, really? "Human rights law doesn't apply"? - is it really true that in wartime, human rights laws are suspended?

I read the article - not to learn Facts, but to discern Spin. I read to see what this author was saying, what Israel is saying. And then I did some fact-checking. 

Let's stroll through this "news" article together - at a pace slow enough to allow us time to think critically - and see whether it is telling the truth.


HA'ARETZ SAYS: "The protests by Palestinians on the Gaza border fall into the category of a state of war and thus human rights law does not apply to the rules of engagement, the state said in its response to a High Court petition filed by human rights groups."


KATHY ASKS: IS IT REALLY A STATE OF WAR? Israel considers itself in a state of war - but is it? Palestinians have no weapons and are not engaging in conflict. They are demonstrating. Gazans are not an actual threat to Israel's borders, only a symbolic, philosophical threat. Is it ok to disregard human rights law when you feel symbolically or philosophically threatened?

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If a Palestinian, or a handful of Palestinians, did manage to breach the border fence, no Israeli would be in danger. Israel has snipers and an entire army at its disposal. For that reason, not only is it unnecessary (shall we say "overkill"?) to declare a state of war, it's also unnecessary to shoot individuals who are getting close to the fence. Israel has killed at least 45 Palestinians in the past 6 Friday protests - just for protesting. What kind of "war" is that? How about something a little less aggressive than killing and maiming?


HA'ARETZ SAYS: "According to the response [to the petition], the Israeli forces’ rules of engagement comply with both Israeli and international law."


KATHY ASKS: DOES INTERNATIONAL LAW REALLY SAY HUMAN RIGHTS DOES NOT APPLY IN WAR? The International Committee of the Red Cross (ICRC) explains

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"International humanitarian law (IHL) and international human rights law...are both concerned with the protection of the life, health and dignity of individuals. IHL applies in armed conflict while human rights law applies at all times, in peace and in war."

In spite of Israel's claim to be "in a state of war," then, both IHL and international human rights law still apply.

There are exceptions - maybe Israel has a loophole?:

"...international human rights law allows a State to suspend a number of human rights if it faces a situation of emergency."

Is Israel in a "situation of emergency" that might allow a suspension of some human rights? Israel would say yes, but that is simply not the case: Gazans are unarmed. 

ICRC addresses the exceptions further:

"International Humanitarian Law cannot be suspended (except as provided in Article 5 to the Fourth Geneva Convention)."

What are the exceptions in Article 5? In what situation can IHL be suspended? 

"Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities..."

 Secretary of Defense Avigdor Lieberman

Secretary of Defense Avigdor Lieberman

Notice that the suspension of rights is done on a case-by-case basis, not whole classes of people (for example, Avigdor Lieberman's declaration, "there are no innocents in Gaza," does not cut the mustard).

The individual in question must be either engaged in or definitely suspected of certain activities:

"...activities hostile to the security of the State..."

Pay close attention: this does not refer to activities hostile toward the State - like throwing stones or burning tires, or even breaching the border fence. No, the activities must be hostile to the security of the State. Article 5 gives examples: "spy or saboteur" - these folks really could give away state secrets and compromise state security. But even for spies and saboteurs, there are limits:

"However, a State can not suspend or waive certain fundamental rights that must be respected in all circumstances. These include the right to life, the prohibition of torture..."

ICRC clearly says that human rights law does not disappear during war. "Life," for example, is nonnegotiable. So when human rights organizations petitioned the Israeli High Court because of the high number of casualties, the claim that  "protests by Palestinians on the Gaza border fall into the category of a state of war and thus human rights law does not apply," is simply untrue. Being in a state of war (even an imaginary one) does not absolve Israel of the duty to be humane. 


HA'ARETZ SAYS: “The state opposes the applying of human rights law during an armed conflict,” the state wrote, adding that the Red Cross had acknowledged that such law indeed did not have to be applied during such a state of affairs."


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KATHY ASKS: DOES ISRAEL REALLY WANT TO SUSPEND HUMAN RIGHTS? Actually, Israel has already suspended human rights. The purpose of the statement that " state of war and thus human rights law does not apply" is to retroactively absolve Israel of guilt for actions it has already taken against the Palestinians. In the weeks since the Gaza March began, Gazans have been shot while praying and while running away from the border; children have been killed; people have been shot while rescuing others who'd been shot; clearly marked members of the press have been killed; medics have been attacked with tear gas; the injured have been denied access to the medical care they need; the Israeli army is apparently using experimental weapons including a type of bullet that explodes on impact and necessitating many limb amputations. Human rights are long gone.

Ha'aretz's statement that the Red Cross had acknowledged that human rights law doesn't need to be in place during war has already been disproven by the Red Cross' own words.


HA'ARETZ SAYS: "In their so-called March of Return, Gazans have been protesting each Friday at the Gaza border fence. In the demonstrations, the Israeli army has killed 45 protesters and wounded thousands; the army says it is trying to stop the fence from being breached."   


KATHY ASKS: IS THE GOAL, "TRYING TO STOP THE FENCE FROM BEING BREACHED," WORTHY OF KILLING UNARMED PEOPLE? If not, then it must stop, and those who did it and ordered it must be tried and punished. If yes, Israel must be prepared to be more alone in the world than ever. The civilized world will not accept such behavior. Israel has already been chastened by the international community many times. 


HA'ARETZ SAYS: "The state said the demonstrations were part of hostile acts by Hamas against Israel, though Israel did not necessarily see participation in violence at the border fence or the approaching of the fence as direct participation in a hostile act. Each case should be examined individually, it said.

"The State Prosecutor’s Office distinguishes between protesters demonstrating and protesters trying to break into Israel to attack soldiers and civilians."

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KATHY ASKS: ARE THESE ALL OF THE POSSIBLE CATEGORIES? Are you sure that all of the protesters trying to breach the fence want to attack soldiers and civilians? Could it be that some of them want to touch their land, the land they were ethnically cleansed from?

And what about the demonstrators who were not trying to breach the fence, but were shot anyway (the vast majority of injuries)? Israel claimed to be targeting "main instigators," but was that really the case? Hamas itself, as well as loved ones of the fallen, insist that many of the dead and the thousands of injured were not involved in the conflict. Even Israel admits that it got it wrong in some cases.


HA'ARETZ SAYS: "The state’s response relied on a 2015 High Court ruling on a petition by a demonstrator on the Lebanese border who was shot by the Israeli army. According to the ruling, the breaking-up of a violent, life-threatening protest allows for the use of potentially deadly force."


KATHY ASKS: "LIFE THREATENING PROTEST"? The only lives being threatened were Palestinian protesters. Israel had the snipers, tanks, drones, and tear gas.

Journalists choose their words with great care, whether they are honest or dishonest. It is our civic duty to examine those words and see whether they are accurate and reliable. 

Israel has power and money (both gifted from the US) to dictate the narrative that will be in its best interest. This story (and innumerable others like it) is an affront to the intelligence of those who are informed.

More of us need to be informed. Then we need to challenge that narrative that blames the victim and the politicians who spend our money unwisely on Israel.

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