On April 13, 2015, a coalition of over 40 NGOs1 under the umbrella of the Association of International Development Agencies (AIDA) and “other regional coordination networks” published a “briefing paper” titled “ Charting a New Course: Overcoming the stalemate in Gaza .” It appears that Oxfam International took the lead on this publication. The NGO signatories to the report receive massive funding from European governments, enabling such initiatives. They also maintain close coordination and partnerships with government officials and diplomats.

According to the NGO authors, “This paper outlines an achievable course of action that, if implemented, could make significant progress in addressing the root causes of the recurrent conflict and towards the realization of a just, durable peace that would benefit Israelis and Palestinians alike” (pg. 3).

However, the analysis is fundamentally flawed in many dimensions, and, contrary to the stated aims, the recommendations would embolden Hamas, destabilize security in the South of Israel, and lead to greater conflict. Without seriously addressing weapons smuggling (such as the incident at Kerem Shalom on the day AIDA’s report was published), tunnel rebuilding, and Hamas’ commandeering of aid, the demand for an “end to the Israeli blockade” of Gaza, is counterproductive and dangerous.

These problems are compounded by fundamental flaws in the report, including faulty “research,” false premises, irresponsible and misleading use of international legal language omissions of binding law, and an undercurrent of promoting BDS (boycott, divestment, and sanctions) against Israel.

Fundamentally Flawed Premises

1. The NGOs claim Israel is engaged in an “illegal blockade” (5) of Gaza, even though significant reconstruction materials have been entering via a work-around mechanism (see below). They also repeat the allegation that “The blockade constitutes collective punishment; it is imposed in violation of IHL and, according to the UN, may entail the commission of war crimes” (8).

Contrary to the NGO claims of being “illegal,” under international law, a blockade is a legal form of naval warfare used to prevent the smuggling of weapons and other assistance to an enemy force. The NGOs are therefore incorrectly using the term “blockade” or deliberately distorting its meaning.

Similarly, the NGOs misuse the legal term “collective punishment.” Restrictions 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), 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.

In addition, the NGOs ignore the extensive international law prohibiting direct and indirect support to terrorist organizations. The NGOs are essentially demanding, therefore, that Israel and other countries deliberately violate international law in order to meet their policy requirements.

The NGOs also claim that “The implementation of the blockade is in breach of Israel’s obligations to provide for the well-being of the Palestinian population” (8). However, these supposed “obligations” vis-a-vis Gaza are based on the false premise that the territory remains occupied, despite the 2005 Israeli disengagement (removal of all military and civilian presence, and turning over of sovereignty to the Palestinians). Nevertheless, Israeli policies toward Gaza exceed any legal requirements that would be placed on the country if the territory was considered occupied under international law. NGOs promote this specious claim then for political purposes to continue to assign responsibility and blame to Israel over the situation in Gaza.

2. According to the NGO narrative, which permeates “Charting a New Course,” Israel bears sole responsibility for Palestinian civilians in Gaza, and all humanitarian difficulties in Gaza are the result of Israeli policies. Terrorist activities by Palestinians and security rights of Israelis are conspicuously excluded from the narrative. Israel’s real security concerns are minimized as a pretext to promote a narrative of Israeli cruelty. Similarly, Egypt’s role and activities along the Rafah border, including the razing of more than 1,500 homes, is nearly erased.

A keyword search of the publication clearly shows how the NGOs selectively present the narrative of Gaza:

Egypt (which also maintains closed borders with Gaza)3
Palestinian Authority (nominal ruling power in Gaza)3
Terror, terrorism, terrorist2
Iran (major supplier of weapons and resources to Hamas)0

In downplaying the role of Hamas in perpetuating the conflict and ignoring its massive, systematic human rights violations and status as a banned terrorist entity, the NGOs include a short section on “Engaging All Parties,” in which they complain that “restricted contact [with Hamas] can undermine humanitarian access and implementation of humanitarian programmes” (22). In this regard, the NGOs assert that “Reconstruction and recovery must not be held hostage to political developments” (23) – as if Hamas control of Gaza, rebuilding of attack tunnels, and commandeering of humanitarian aid are simply “political” challenges, not fundamental threats to the reconstruction of Gaza and the prevention of further hostilities.

The NGOs also “cherry-pick” sources that support their narrative. For instance, they cite to Israeli political NGO Gisha’s account that “Israeli security experts have also warned that the restrictions on goods entering Gaza, in particular construction materials, are harmful to Israeli security, due to the economic paralysis that the blockade has created.” While a former senior military official has made such proclamations, other security experts disagree. AIDA, its constituent NGO members, and Gisha clearly lack the expertise and knowledge to properly weigh between competing approaches to Israeli security.

3. Another major element of the biased NGO narrative is that Israel undeniably committed “violations of international law” during the 2014 Gaza conflict. As such, according to the publication, there is a need for an arms embargo against Israel because “Conduct by both sides during OPE and prior conflicts demonstrates that there is a serious risk that such arms transfers could in the future be used in commission of breaches of IHL and that any transfers would therefore be in violation of the ATT” (23-24).

However, the publication provides no evidence whatsoever to support this premise. Instead, AIDA presents unfounded and unverified allegations by Amnesty International and B’Tselem, NGOs that, like the authors of the report lack credibility and fact-finding capacity and methodology, and share the same anti-Israel biases, as well as a quote from “Avner Gvaryahu of Breaking the Silence [who] observed that ‘[t]he same red line that was crossed during Israeli Operation Cast Lead has become the starting line for OPE’” (12). Similar NGO allegations were repeated in the discredited Goldstone report (2009).

4. In parallel to the narrative of Israeli guilt, the AIDA NGO report highlights a narrative of Palestinian victimization. The authors argue that “reconstruction and recovery have barely begun, and people in Gaza remain in dire straits” (3), while, as noted, blaming and not Hamas or other Palestinian groups for this situation. This aspect was pronounced in the press statement accompanying the report , where NGO officials emphasized that “there has been little rebuilding” and “reconstruction cannot happen without funds.” According to the press release, “not a single one of the 19,000 destroyed homes has been rebuilt.”

However, as noted by the Elder of Ziyon blog, the reality is far more complex. According to the Shelter Cluster Palestine, an umbrella of UN organizations and NGOs (run by Norwegian Refugee Council, one of the signatories of the AIDA report), as of March 2015, “58,930 housing units received cash for repairs (Minor Damage)” and “11,800 housing units received a first cash payment for repairs (Minor, Major and Severe damage).” “Permanent construction of new houses,” which has not started, “can take several months and would include several stages such

as design proposal, building permit approval, mobilisation of contractors and funds, construction and handover of the final build.” In addition, “As of 15 March, over 73,000 individuals requiring ABC materials for shelter repairs have been cleared to purchase materials under the GRM. Of these, over 59,000 homeowners have procured full or partial quantities of their allocated construction material to date.”

Furthermore, the statistic of “19,000 destroyed homes,” which has been a feature of press and social media output by Oxfam and other NGOs involved in the publication, is not accurate. It is an aggregation of the more nuanced “12,400 housing units completely destroyed and 6,600 severely damaged” listed in the publication (7). As with many other NGO initiatives, accuracy is sacrificed for sensationalism in public statements.

Misleading and Distorted Use of International Legal Language

In addition to the examples provided above regarding the blockade and alleged Israeli violations of the laws of armed conflict, AIDA misquotes and misrepresents principles of international law.

  • For instance, AIDA claims that, according to the UN Arms Trade Treaty, “the prohibition of arms transfers where the supplier has knowledge that the arms will be used to commit ‘attacks on civilian objects or civilians’” (pg. 13). The quote to the Treaty is inaccurate. The actual, official language prohibits “any transfer of conventional arms…if [the State] has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party” (Article 6, not 7 as listed by AIDA, emphasis added). The essential word “directed,” referring to intentional targeting of civilian objects, and not collateral damage, was removed in AIDA’s version. (In fact, this was one of the central charges retracted by Judge Richard Goldstone from the UN report bearing his name.) It appears that AIDA is repeating a mistake first made by Oxfam International in an August 2014 press release .
  • Israel is criticized “for controlling the import of cement and other items that they label as ‘dual use’” (17) – that is items that could be used to produce weapons and other military objects in Gaza – beyond the list of materials prohibited by the Wassenaar Arrangement, an international body “on Export Controls for Conventional Arms and Dual-Use Goods and Technologies.” According to AIDA, “they should therefore be allowed into Gaza without restriction” (24). However, Israel is not a member of the agreement and is, therefore, not bound by its terms. Even if it were, the Wassenaar criteria, contrary to the NGO claims, explain that “Dual-use goods and technologies to be controlled are those which are major or key elements for the indigenous development, production, use or enhancement of military capabilities,” and the Arrangement allows for “the relevant threshold parameters should be developed on a case-by case basis.” Hamas’ extensive construction of tunnels and rockets using materials such as cement and steel bars shows that Israel’s restrictions on importing such items into Gaza are quite reasonable.

Moreover, as noted by Gisha directors Sari Bashi and Eitan Diamond at a November 2014 ICRC-sponsored conference at Hebrew University on humanitarian aid, there is no shortage of cement in Gaza. Rather, much of it is diverted and appropriated by Hamas for rebuilding the organization’s infrastructure, driving up prices for average Gazans. Yet, addressing Hamas’ blatant violations is not a priority in this AIDA publication.

  • The NGOs demand that “Israel must lift the blockade and open all crossings into and out of Gaza, allowing for the unimpeded entry and exit of goods” (25) and “Israel should ensure the unhindered access of aid workers (regardless of their nationality) between the West Bank (including East Jerusalem), and Gaza” (24). There is no basis in international law for these demands, in particular if “unimpeded entry” or “unhindered access” would entail security risks.

BDS Agenda

An undercurrent in the AIDA publication is advancing BDS against Israel. In addition to the aforementioned arms embargo, the NGOs push for sanctions such as “conditioning improved economic and other relations” with Israel and changing the EU-Israel Association Agreement (21). There is also a repeated emphasis on ending the “culture of impunity,” which is NGO code for International Criminal Court (ICC) trials of Israeli officials.

The BDS agenda is further seen in concerns that “there is no system of checks and balances to ensure that companies that violate international law in the OPT do not financially benefit from the reconstruction of Gaza.” According to the publication, this stands in opposition to the “principle… of no-profit for violators of international law” (19). There are a number of major problems with these statements:

  • The reference to “companies that violate international law” supposes that companies, through their business activities in the West Bank, can “violate international law.” NGOs, including signatories to the AIDA publication, are active in promoting this erroneous claim.
  • In general, corporations, as opposed to states, are not bound by IHL. European courts have repeatedly found that non-discriminatory business practices over the 1949 armistice line, even if they are undertaken in conjunction with Israel or Israelis, are not illegal.
  • This “principle” undermines the NGOs’ entire argument concerning reconstruction and ending the blockade. Regarding Gaza, Hamas and Hamas-affiliated companies are the primary violators of international law and human rights. Yet, Hamas would be the number one beneficiary and profiteer if the recommendations of the report were implemented. Indeed, under their own logic, as facilitators of economic activity benefiting Hamas, the NGOs would be guilty of aiding and assisting violations of international law – the very standard they set in the report.
  • AIDA also ignores the NGOs whose actions, however well-intentioned, support violations of international law.

Further reflecting the main political narrative of the report, as discussed above, the recommendation that “States should comply with their third state responsibilities not to aid or assist rights violations with respect to companies that contribute to such violations” is the final recommendation under the “Principled assistance, reconstruction and recovery” section in the body of the report (on page 25), but is presented first in the “Summary” on page 4.

Finally, West Bank-related BDS appears in the call that “Donors should institute a collective, transparent public reporting mechanism for tracking destruction of their aid and should issue immediate formal demands for compensation of projects funded by their tax payers” (23). Inasmuch as this refers to Gaza, Hamas, which exploits civilian and humanitarian objects for its military operations, is the likely address for compensation. However, as seen in previous AIDA statements, this is mostly an irrelevant West Bank concern. Calls for compensation from Israel are particularly misplaced when the destroyed projects were erected by government and non-governmental entities without permits from the Israeli Civil Administration, in violation of international norms and with the knowledge that they may face demolition.