In the first five months of 2008, HRW has issued thirteen statements condemning Israel’s response to deliberate attacks aimed at Israeli civilians launched from Gaza. [1]  These statements exploit international legal terminology, repeat incomplete or false analyses of international law, and minimize or omit Hamas’ attacks on Israeli border crossings where humanitarian aid is delivered, as well as the diversion of this aid by Hamas. In contrast to carefully written, accurate and well-sourced legal analyses, these publications reflect a dominant political agenda.

HRW’s May 13, 2008, open letter to US President George Bush, signed by Joe Stork and published with highly politicized NGOs Gisha and Physicians for Human Rights-Israel, (both of which have had to admit false factual claims in recent weeks) highlights this practice.  The following is a point-by-point analysis of this letter:

Claim:  Israel’s restrictions on the flow of goods and services into Gaza “constitute[s] collective punishment against the civilian population, a serious violation of international humanitarian law.”

Analysis:  HRW continues to apply the label of “collective punishment” selectively and incorrectly to Israel (see NGO Monitor’s analysis here). Restriction on the flow of goods in a war environment does not constitute “collective punishment” under international law.  “Collective punishment” refers to the imposition of criminal penalties and does not refer to the legal act of retorsion (e.g. sanctions, blockades).  In fact, pursuant to Article 23 of the Geneva Convention (which sets standards for the provision of limited humanitarian aid), [2] Israel has no obligation to provide any goods, even minimal humanitarian supplies, if it is “satisfied” that such goods will be diverted or supply of such goods will aid Hamas in its war effort.  As numerous credible accounts have reported, Hamas has diverted supplies from Gaza’s civilian population.  Although Israel is under no legal obligation and despite the diversion as well as attacks on the Israeli border crossings, including the April 9 attack on the Nahal Oz fuel depot and the May 22 truck bomb attack at the Erez crossing, Israel continues to provide hundreds of tons of humanitarian supplies to Gaza on a weekly basis.  This is above and beyond any obligation under international law, and the claim of “collective punishment” is entirely unjustified.

Claim:  HRW claims that “[t]he Israeli policy’s impact on the ability of armed groups in Gaza to carry out their attacks is highly debatable, and some Israeli military officials have openly questioned its effectiveness.”

Analysis:  In making this claim, Joe Stork and HRW proffer military expertise that they do not possess and rely on unnamed and unverifiable “sources” to back these allegations. Moreover, they refuse to attribute responsibility to Hamas for the attacks, instead employing the phrase “armed groups.”

Claim:  HRW argues that the deliberate targeting of civilians by Hamas “[does] not permit unlawful actions – in this case collective punishment – by the other.”  

Analysis:  This claim attempts to contort Israel’s lawful right to exercise self-defense against attacks on its civilians into a violation of international law.  As shown above, Israel is not engaging in “collective punishment,” nor are Israel’s actions in any way “unlawful.”  Indeed, under international law, the only legitimate uses of force are for purposes of self-defense or pursuant to Security Council authorization under Chapter VII of the UN Charter.  Article 51 of the UN Charter, states: “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”  Israel, therefore, has the unequivocal right to engage in self-defense to prevent attacks against its civilian population.

Claim:  Israel maintains “continued effective occupation of the Gaza Strip.”

Analysis:  Gaza cannot be considered “occupied” under any reasonable interpretation of international law.  HRW claims that Gaza is occupied because Israel “still maintains effective control over the territory via its control of Gaza's land borders, airspace, [and] territorial waters”. This argument is false as a matter of fact and a matter of law, and largely parrots a “legal” opinion circulated by the PLO shortly prior to Israel’s disengagement.  Under both the Hague and Geneva Conventions, as well as judicial interpretation of these provisions, [3] the standard of “effective control” refers solely to the exercise by a hostile army of governmental authority – not control of borders.  Thus, in no way can Israel be said to exercise governmental authority in Gaza.  Indeed, as Egypt controls the southern border of Gaza, and based upon its occupation of Gaza from 1948-67, under HRW’s reasoning, Egypt would also be considered to be occupying Gaza.

Claim:  Gaza continues to be occupied because Israel “maintains effective control over …  tax collection, and population registry.”

Analysis:  The statement that Israel controls tax collection and the population registry in Gaza is also clearly false and HRW provides no source to support this allegation.  Beginning in 1994, the Palestinian Authority became responsible for the establishment and collection of all taxes within Gaza, and this is now controlled by Hamas following its June 2007 coup.  Israel has no power to set or collect such taxes. Pursuant to international agreement, Israel collects custom duties for cross-border transactions on behalf of the PA, but only a highly distorted interpretation would conclude that Israel is “controlling” tax collection in Gaza. Moreover, Israel has no control over what population registry the PA and Hamas choose to use (the fact that the PA and Hamas continued to use of the population registry system established by Israel following 1967 is not Israel's decision.)  Finally, if Israel was still occupying Gaza, pursuant to Article 43 of the Hague convention, it would be obligated to re-enter Gaza in order to restore public order and security.  HRW and Gisha cannot possibly be arguing for re-invasion of Gaza by Israel.

Claim:  Gaza continues to be “occupied” because Israel “is the major source of electricity and, because Gaza residents are not permitted to obtain fuel except via Israel.”  

Analysis:  The status of “occupation” is not created by reliance on a foreign power for fuel or electricity. And under international law as analyzed above, Israel is not obligated to supply Gaza with fuel and electricity.  Moreover, no obligation is created merely because there is a dependence on Israel for these items.  HRW also does not provide any source to back the claim that “Gaza residents are not permitted to obtain fuel except via Israel.” In any event, Israel continues to supply Gaza weekly with millions of liters of fuel and thousands of kilowatts of electricity.

Claim:  Gaza continues to be “occupied” because “Israeli military forces can and regularly do re-enter Gaza at will.”

Analysis:  Again, territory is considered “occupied” under international law solely if the hostile army exercises the functions of “governmental authority.” The test is not whether an army has the potential to enter a territory to conduct military operations.

Conclusion:  

HRW’s “Open Letter to George Bush” continues the organization’s practice of distorting international law, creating legal obligations where none exist, and ignoring the role of Hamas in Gaza in order to advance its political agenda rather than universal human rights.

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[1] In contrast to these thirteen statements, HRW issued no condemnation of the March 2008 murder of children in a Jerusalem school by a Palestinian terrorist; of the 2008 February suicide bombing in the Israeli city of Dimona; the murder of several Israeli civilians in rocket and shooting attacks carried out by Hamas; the April 9 suicide bombing at the Nahal Oz fuel depot; and the Katuysha rocket attack on an Ashkelon children’s health clinic on May 14, 2008.  HRW’s February 29, 2008, report “Gaza Strip/Israel:  Civilians Bear Brunt of Attacks,” is the only report issued in 2008 condemning the specific killing of an Israeli civilian in a Qassam attack.  This report, however, largely condemns Israel for its self-defensive measures in Gaza.  The May 9 killing of an Israeli civilian is referenced in HRW’s open letter to President George Bush.  The victim, however, is not named, and the purpose of the letter is to condemn Israeli policy, not Hamas’ targeting of civilians.

[2] Article 23 provides that  

Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:

(a) that the consignments may be diverted from their destination,

(b) that the control may not be effective, or

(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.

The Power which allows the passage of the consignments indicated in the first paragraph of this Article may ma permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.
Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.

It is argued that Article 23 does not apply to the case of Gaza. If that is so, then Israel is under no legal duty to provide even the minimal humanitarian supplies listed in Article 23.

[3] See, e.g., The Hostages Trial, Trial of Wilhem List, United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Volume VIII, 1949, at 55-6, available here (holding that “an occupation indicates the exercise of governmental authority to the exclusion of the established government . . . To the extent that the occupant’s control is maintained and that of the civil government eliminated, the area will be said to be occupied”.)