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Since the overwhelmingly nonviolent demonstrations in Gaza began on March 30, 2018, the international community has strongly condemned Israel’s armed attacks. A UN General Assembly resolution “deplore[d] the use of any excessive, disproportionate and indiscriminate force by the Israeli forces against Palestinian civilians,” while the UN Human Rights Council denounced Israel’s “disproportionate and indiscriminate use of force.” After Israeli snipers killed Razan al-Najjar, a twenty-one-year-old unarmed Palestinian paramedic, the UN special coordinator for the Middle East peace process warned Israel that it “needs to calibrate its use of force.” In a devastating report, Human Rights Watch concluded that “Israeli forces’ repeated use of lethal force in the Gaza Strip … against demonstrators who posed no imminent threat to life may amount to war crimes.” Welcome as these condemnations are, the question nonetheless remains whether they go far enough. Simply put, does Israel have the right to use any force under any circumstances against the people of Gaza? The current legal debate has focused on a pair of interrelated questions: Did Israeli snipers resort to “excessive” or “disproportionate” force against demonstrators (as critics allege), or was the amount of force they deployed necessary to prevent protesters from breaching the perimeter fence (as Israel alleges)?

Is Israel’s conduct toward the Gaza protests governed by human rights law (as critics allege) or by international humanitarian law (as Israel alleges)? International humanitarian law applies in situations of armed conflict, whereas human rights law regulates domestic law enforcement. The difference matters, as human rights law imposes more stringent constraints on the use of force. All parties to both these controversies proceed from a common premise: that Israel has the right to use force in order to prevent Gazans from breaching the fence. The dispute comes down to: how much? Critics who allege “disproportionate” or “excessive” force tacitly legitimize Israel’s use of “proportionate” or “moderate” force, while those who insist upon the applicability of human rights law acknowledge that Israel’s resort to force is legitimate if demonstrators pose an “imminent threat” to a sniper’s life. This presumption holds even at the most critical pole of the debate on Gaza. The Israeli human rights group B’Tselem condemned as “illegal” Israel’s resort to lethal force against unarmed persons “approaching the fence, damaging it, or attempting to cross it.” But it conceded that “[o]bviously, the military is allowed to prevent such actions, and even to detain individuals attempting to carry them out.” A senior Human Rights Watch official argued that Israel’s use of live ammunition in Gaza was “unlawful.” But she suggested that “nonlethal means, such as tear gas, skunk water, and rubber-coated steel pellets” would have passed legal muster. The International Committee of the Red Cross cautioned Israel that “lethal force only be used as a last resort and when strictly unavoidable in order to protect life.” Even the major Palestinian human rights organizations characterized Israel’s use of force as “excessive,” “indiscriminate,” and “disproportionate” rather than inherently illegal. But the fact is, Israel cannot claim a right to use any force in Gaza — whether moderate or excessive, proportionate or disproportionate; whether protesters are unarmed or armed, don’t or do pose an imminent threat to life. If it appears otherwise, that’s because the current debate ignores critical caveats in international law and abstracts from the specific situation in Gaza.

What International Law Says To justify its use of force in Gaza, Israel claims the right to prevent alien intrusion into its sovereign territory. An Israeli legal commentator observes that this professed concern for the sanctity of the Gaza “border” is opportunistically selective. Israel invades Gaza at will; only when Palestinians seek to cross in the other direction does the fence become sacrosanct. Setting this hypocrisy aside, Israel’s purported right to self-defense still lacks any legal basis. On the contrary, Israel’s resort to force contravenes international law. The Palestinian people in the West Bank, including East Jerusalem, and Gaza are struggling to achieve their internationally validated “right to self-determination” (International Court of Justice). As preeminent legal scholar James Crawford notes, international law prohibits the use of military force “by an administering power to suppress widespread popular insurrection in a self-determination unit,” whereas “the use of force by a non-State entity in exercise of a right of self-determination is legally neutral, that is, not regulated by international law at all.” Demonstrators in Gaza have chosen to use nonviolence in pursuit of their internationally validated rights — a tactic that, of course, international law also does not prohibit. But this prudential decision is not a legal requirement. Even if Gazans opted to use weapons against Israeli snipers who obstruct their right to self-determination, Israel’s resort to military force would still be legally debarred. The allocation of rights and obligations in standard Western discourse — which effectively accords Israel the right to use violent force in self-defense against Gazans, even as it obliges the people of Gaza to wage nonviolently their self-determination struggle — upends international law. It might be objected that inasmuch as Israel is a belligerent occupier in Gaza, it has the right, under the Fourth Geneva Convention of 1949, to use force in order to maintain public order. But this objection falls on three counts. First, the Fourth Geneva Convention obliges a belligerent occupier to provide for and ensure the welfare of the occupied population. Indeed, “Protection of Civilian Persons in Time of War” is the convention’s raison d’etre. Israel, however, has subjected Gaza’s civilian population to a protracted siege that amounts to illegal “collective punishment,” according to the International Committee of the Red Cross, and that has rendered Gaza physically “unlivable,” according to the UN. The Fourth Geneva Convention does not sustain Israel’s right to preserve order in Gaza even as it flagrantly breaches its complementary obligation to guard the welfare of Gaza’s civilian population. In fact, the disorder Israel claims the right to suppress directly springs from the criminal blockade it has imposed. Second, even if Israel qualified as a belligerent occupier in Gaza, the right of a people to self-determination is a peremptory norm (jus cogens) of international law from which no derogation is permissible. If, as in this case, the law of belligerent occupation overlaps with the right to self-determination, then Gaza’s right to self-determination trumps Israel’s right to maintain order; and if, as in this case, the struggle for self-determination is being waged nonviolently, then Israel’s purported right to use armed force to maintain order is manifestly ill-founded. Third, in point of fact, Israel’s occupation of Gaza has by now become illegal, and it has consequently forfeited its rights as a belligerent occupier. The International Court of Justice ruled in 1971 that since South Africa had refused to conduct good-faith negotiations to end its occupation of Namibia, that occupation had become illegal. Israel’s refusal over a full half-century to conduct good-faith negotiations on the basis of international law to withdraw from the West Bank, including East Jerusalem, and Gaza has likewise delegitimized its occupation. There is also another critical legal dimension that has been ignored. It is a fundamental principle of international law that no state may resort to forceful measures unless “peaceful means” have been exhausted (UN Charter, Article 2). This principle is as sacred to the rule of law as the analogous Hippocratic oath, primum non nocere (first, do no harm), is to medicine. The impetus behind the protests at Gaza’s perimeter fence is Israel’s illegal siege, and their objective is to end it. Even Israeli prime minister Benjamin Netanyahu conceded: “They’re suffocating economically, and therefore, they decided to crash into the fence.” If Israel wants to protect its border, it need not resort to either lethal or nonlethal coercion. It merely has to lift the siege. US president Donald Trump’s A-Team on Middle East diplomacy — son-in-law Jared Kushner, former bankruptcy lawyer David Friedman, former Trump Organization legal advisor Jason Greenblatt, and former South Carolina governor Nikki Haley — allege, on the contrary, that it is Hamas that “is holding the Palestinians of Gaza captive” and bears “primary responsibility … in perpetuating the suffering of the people of Gaza.” But if they’ve tumbled down Alice’s rabbit hole, it’s not incumbent on the rest of us to follow them. “Israel, as the occupying power,” the UN Office for the Coordination of Humanitarian Affairs authoritatively observed, “must lift the blockade, which contravenes … the Fourth Geneva Convention prohibiting collective penalties and prevents the realization of a broad range of human rights.” Hamas has also consistently offered Israel a long-term truce (hudna) in exchange for an end to the siege, and it reiterated this proposal throughout the current demonstrations. On May 7, a week before Israel shot dead more than sixty protesters in Gaza, Ha’aretz reported that “Hamas leaders” had “conveyed to Israel messages indicating their willingness to negotiate a long term cease-fire” in exchange for, among other things, “easing … the siege.” “Hamas keeps relaying messages to the defense establishment that it’s still interested in a ‘hudna,’” a veteran Israeli military correspondent revealed several days later. “Hamas itself has conveyed to Israel in the past year different versions of a restricted or wider hudna, which include not only Gaza but the West Bank as well.” The Israeli military took these cease-fire offers seriously: “Hamas, according to the intelligence services, is willing to reach an agreement.” Indeed, a senior army officer urged that “now is the time to reach an agreement with Hamas” in order to “prevent further rounds of fighting.” But Israel’s government was uninterested: Hamas’s “demands and conditions have never been discussed, as Israel refuses to talk to Hamas.” Israel’s rejection of this preliminary peaceful step puts it in double breach of international law: the imposition of an illegal blockade and the unlawful resort to armed force when peaceful means have not been exhausted.