Introduction

On January 11, 2019, CUNY School of Law Human Rights and Gender Justice Law Clinic and the Palestinian NGO Defense for Children International – Palestine (DCI-P) filed a joint 57-page submission to the UN Commission of Inquiry into the Gaza border violence (which began March 2018). DCI-P is closely linked to the Popular Front for Liberation of Palestine (PFLP)1 – designated as a terrorist organization by the US government.2 As detailed below and reflecting the collaboration with a PFLP-linked organization,3 the submission is replete with egregiously false statements, gross distortions of the law and the facts, and the whitewashing of terror groups including Hamas. (See here for NGO Monitor’s letter to CUNYLaw.)

DCI-P’s Ties to the PFLP

NGO Monitor has identified DCI-P board members, officials, and employees who are members of the PFLP – and some of whom have been convicted of terror offences such as planning and carrying out attacks targeting Israeli civilians.

This includes Hashem Abu-Maria, the coordinator of DCI-P’s community mobilization unit until he was killed in clashes with the Israeli military in July 2014.4 Upon his death, he was hailed by the PFLP as a “leader,”5 and a “comrade”; the terror group issued an official mourning announcement, noting that “he was in the ranks of the national liberation struggle and the PFLP from an early age.”6 DCI-P dedicated its 2014 annual report to Abu-Maria,7 and DCI-P officials spoke publicly at PFLP gatherings in his honor.8

Other members of DCI-P have also spoken on behalf of the PFLP in various public forums.9 For example, Riyad Arar, DCI-P’s Director of the Child Protection Program,10 addressed the December 28, 2014 PFLP memorial event for a group member who was killed “while engaging in a demonstration confronting the occupation forces with stones and Molotov cocktails.” The event featured PFLP paraphernalia and individuals clad in military garb some of whom appear to be children.11

In June 2018, in light of these close associations, Citibank and Arab Bank closed accounts belonging to DCI-P.12 Global Giving, a US-based crowdfunding resource, also removed DCI-P from its website.13

Demonstrably False Claims

The submission refers to the riots as “mass civilian protests” that are “intended to be peaceful.” It then absurdly labels combat activities – such as the organized “night confusion” groups that “seek to create distractions for Israeli forces late at night by utilizing loud sounds and fireworks” – and preparing “large kites with flaming tales to be flown across the perimeter fence”  as “protest strategies.” In fact, Palestinian armed groups have launched incendiary balloons across the border to target Israeli civilian communities and agriculture. These objects, which consist of fire kites, helium-filled balloons, or condoms, are tied together with flaming rags or other incendiary devices or explosives, and have caused significant damage to agricultural fields, animals, and the environment more broadly. The balloons are intended to attract children to the explosive devices.

Moreover, the Clinic/DCI-P authors claim (twice) that “…since the Great March of Return protests began in March 2018, no Israel civilians have been killed or injured as a result of the demonstrations and no member of the Israeli forces has been killed by persons participating in the protests.” In fact, on July 20, 2018, staff Israeli Sgt. Aviv Levi (20), was “shot to death” on the Gaza border14 and other Israeli soldiers have been injured by grenades,15 shrapnel,16 and anti-tank missiles.17 This also refutes the submission’s claim that “there is no available evidence to suggest that the lives of heavily armed security forces were threatened.”18

Willfully Ignoring Evidence

The authors ignore the vast amounts of evidence, including first-hand statements made by leading Hamas officials that acutely demonstrate Hamas’ role in organizing the violence along the Gaza border. For example, on September 4, 2018, Yahya al-Senawar, the head of the Islamic Resistance Movement in Gaza, stated that “our people are creative in inventing the means of pressure on the occupation, such as balloons and kites. History will write that those trapped in the Gaza Strip without anything forced the enemy to think again.”19 Similarly, on May 17, 2018, Hamas leader Mahmoud al-Zahar stated that “when we talk about ‘peaceful resistance,’ we are deceiving the public. This is a peaceful resistance bolstered by a military force and by security agencies, and enjoying tremendous popular support” (emphasis added).20

Whitewashing Terror

The submission goes to significant lengths to ignore Hamas and Palestinian armed groups’ role in the violence, with the starkest example being footnote 181. In this note, the author’s claim that “It is unclear which, if any, Palestinians could be considered a ‘combatant’…Hamas is a political party…” (emphasis added). Elsewhere, the submission relies on an “investigation” by the Hamas Al-Qassam Brigades (!) to claim that an attack on Israeli forces was “an impromtu (sic) attack that was not otherwise planned by the armed group.”

Hamas is a designated terrorist organization according to the US Department of State,21 as well as according to Canada,22 the EU,23 Israel,24 and a number of other countries. According to admissions made by Hamas,25 Palestinian Islamic Jihad,26 and the PFLP,27 a significant number of Palestinians who participated in the protests are their combatants. For example, on May 16, 2018, Times of Israel reported that “The Iran-backed Palestinian Islamic Jihad had said on Tuesday that three members of its Saraya al-Quds military wing were killed by Israeli forces in Khan Younis.”28 The Israeli NGOs cited in CUNY’s submission have similarly identified many of the casualties as individuals that “participated in the hostilities.”29 Additionally, the Meir Amit Intelligence and Terrorism Information Center found that 150 of the total 187 (approximately 80%) of Palestinians killed were affiliated with Hamas and other terror groups.30

Evidence provided in CUNY Law/DCI-P’s submission describes instances where Palestinians are acting as combatants. For example, the description of the death of Ibrahim al-Zarqa explains that he was killed alongside Hamas combatants “who had thrown a grenade” (indicating both the distinction and proportionality of the Israeli strike).

As noted above, the submission whitewashes combat tactics used by Hamas, referring to “another group [that] has self-organized to construct large kites with flaming tales [sic] to be flown across the perimeter fence.” Here, too, the role of terror groups is erased.

As part of the violence along the Gaza border, Palestinian armed groups have launched incendiary balloons across the border to target Israeli civilian communities and agriculture. These objects, which consist of fire kites, helium-filled balloons, or condoms, are tied together with flaming rags or other incendiary devices or explosives. Apart from targeting the Israeli civilian population, these devices have caused significant damage to agricultural fields, animals, and the environment more broadly. According to YNet News, as of July 2018, incendiary kites and balloons started “678 fires in Israel, burning 910 hectares (2,260 acres) of woodland, 1,500 acres of agricultural crops, as well as open fields. In addition, 6,000 dunams (1,500 acres) of agricultural produce and thousands of dunams (acres) of open fields were burned to the ground.”31 The Keren Kayemeth LeIsrael (KKL) alone has lost 15,100 dunams (37,000 acres) of land, not including the Gaza border communities’ lands that were scorched.”32 The balloons are often used to attract children and incendiary devices have burnt fields in Kibbutz Sa’ad,33 Kibbutz Mefalsim,34 Or Haner,35 and Kibbutz Be’ri36 among in numerous other communities in close proximity to Gaza.

The submission makes no mention whatsoever of Hamas and other Palestinian armed groups that have launched rockets targeting civilians, to bolster the violence along the Israel-Gaza border. These weapons are deliberately launched from within Palestinian civilian infrastructure including homes, mosques, schools, athletic stadiums, and farms. By doing so, these groups seek to draw retaliatory Israeli fire on these areas in hopes that civilian casualties will result and provide a significant PR victory. Many Palestinian civilians are also injured or killed by such weapons falling short of their intended Israeli targets or exploding prematurely. According to the IDF, over 174 mortar shells and rockets were fired on Israel on July 14, 2018 alone. In early November 2018, over 370 rockets were launched from Gaza, targeting Israeli civilian communities.37

Ignoring Child Soldiers and Other Human Rights Violations

CUNY’s Human Rights and Gender Justice Law Clinic claims to be dedicated to advancing human rights. However, as highlighted in its submission, the Clinic ignores the recruitment and use of child soldiers by Palestinian armed groups and in favor of condemning Israel’s right to defend its border. The evidence provided in the submission acutely details recruitment and use of children, including instances of children cutting through the border fence, throwing stones, burning and throwing tires, and participating in “night confusion groups.” Specifically, according to the evidence provided in the submission, and in contrast to the scurrilous accusations leveled at Israel, it appears that the majority of minors were either directly participating in the hostilities or in close proximity to those directly participating in the hostilities. The fact that the authors of the submission fail to condemn this exploitation of children demonstrates the political, and not humanitarian, intentions of this document.

Inclusion of Extraneous Information

In its submission about the violence along the Gaza border, the CUNY/DCI-P authors include three cases that occurred before the “Great March” began. The inclusion of these incidences, which took place in January and February 2018, reflect the manipulation of evidence and tendentious presentation of information throughout the submission.

Flawed International Legal Analysis

CUNYLaw/DCI-P’s purported legal analysis completely ignores the central concepts of distinction and proportionality in the laws of armed conflict. Analyzing Israel’s response to the riots along the Gaza border through this lens is crucial in determining if any alleged violations took place. For example, Ibrahim al-Zarqa was killed in an incident along with 14 other individuals, who the submission acknowledges were throwing grenades. Elsewhere, the submission ignores the combat affiliation of vast majorities of casualties.  For instance, CUNYLaw/DCIP-claim 62 Palestinians were killed yet do not mention that  Hamas claimed 50 of these individuals, while Palestinian Islamic Jihad claimed another three as its combatants.38 The fact that at least 53 out of 62 individuals were combatants, it is clear that Israel acted with distinction, directing its attacks towards military objectives, and standing in sharp contrast to CUNYLaw/DCI-P’s false claims of deliberately targeting civilians.

Additionally, despite the fact that CUNYLaw/DCI-P state that they are utilizing an international humanitarian law framework of analysis, they erroneously cite to standards imported from domestic law enforcement. For example, CUNYLaw/DCI-P claim that “the standard for the use of intentional lethal force is not whether an individual is engaged in conduct deemed to be violent, but whether the person presented a mortal threat to Israeli forces at the time they were targeted with intentional lethal force.” However, this is not the standard for the use of force in armed conflict or under IHL.