The Limits of the Diplomatic Arena
Ambassador Dore Gold
Operation Protective Edge, waged in July-August 2014, was the third major military campaign undertaken by Israel in the Gaza Strip since 2007, when Hamas seized control of Gaza, and since 2005, when the IDF completed its unilateral withdrawal from that territory. Each of the three Israeli engagements in Gaza occurred in response to escalating rocket fire from Gaza into Israel and concluded with fragile ceasefires through third parties. Only this time, an additional dimension to the Gaza threat on Israel emerged during the war as a central feature of the conflict: the discovery of a whole network of attack tunnels into Israeli sovereign territory, which had never been raised in previous ceasefire proposals.
The diplomatic background to the war was unique in comparison with what had transpired on other Arab-Israeli fronts in the past, where the cessation of hostilities was governed by a host of interstate armistice agreements, carefully negotiated UN resolutions, or, in the Palestinian case, the Oslo Agreements between Israel and the Palestine Liberation Organization (PLO). This web of international undertakings that bound both the Arab parties and Israel could ameliorate their conflict even in those cases in which they had no diplomatic relations or direct contacts.
In contrast, the territory of the Gaza Strip came under the control of the Hamas movement in 2007 as a result of a military coup against the Palestinian Authority. The Hamas entity was not a recognized state; it operated outside the framework of the international community. The West had no overt ties with Hamas. On the contrary, Hamas was designated as an international terrorist organization by the U.S., Canada, the European Union, and other countries.
Recently, Arab states such as Egypt, Saudi Arabia, and the United Arab Emirates also determined that the Muslim Brotherhood, the parent organization of Hamas, was itself a terrorist organization, with a Saudi source saying that the Muslim Brotherhood designation applied to Hamas as well.1 In the Middle East, the main supporters of Hamas were Qatar (sanctuary and economic support), Turkey (sanctuary), and Iran (economic support, military supplies, and training). These state supporters of Hamas did not act to put a break on regional escalation, but in many respects acted to accelerate it.
While international jurists increasingly saw non-state actors coming under the restrictions of international humanitarian law, Hamas did not see itself bound by these international conventions or by UN resolutions. For example, while Hamas did not rule out the applicability of the Third Geneva Convention, it did not abide by its requirements that it allow Red Cross visits to Gilad Shalit, a prisoner of Hamas for five years.2 In short, the diplomatic dimension of the conflict, by definition, was limited. Diplomacy played a very minor role in helping to avert the outbreak of the latest round of the Gaza war, especially when the main instruments of diplomacy had little or no currency with Hamas and its supporters.
Diplomacy played a very minor role in helping to avert the outbreak of the latest round of the Gaza war. Hamas did not see itself bound by any of the agreements signed by the Palestine Liberation Organization (PLO) and, indeed, adamantly rejected international demands that it recognize past agreements.
Moreover, Hamas did not see itself bound by any of the agreements signed by the Palestine Liberation Organization (PLO) since 1993, when the first of the original Oslo Accords was signed. Indeed, Hamas adamantly rejected international demands that it recognize past agreements. It refused to halt military attacks against Israel and recognize its right to exist. These were the three preconditions that the U.S., Russia, the EU, and the UN Secretariat (grouped together since 2003 as the Quartet) placed before Hamas so that it could be recognized by the international community.
Thus, each of the three ceasefire agreements reached by Israel with Hamas, through Egyptian mediation, were not binding undertakings between states under international law. Hamas used the Arabic term tahdiya to describe each ceasefire, which in the West was translated as a lull or a calm. Occasionally, Hamas leaders spoke about reaching a hudna, an Islamic term for a truce, which they thought of offering Israel in lieu of a peace treaty. A hudna can be broken when there is a change in the balance of power.3
According to Ahmad Yousef, advisor to Hamas Prime Minister Ismail Haniyeh, a tahdiya has a fixed-time framework. By using the more minimalistic term, tahdiya, Hamas did not want its ceasefire agreements with Israel to commit it to halting all military operations on a sustained basis. For Hamas, maintaining armed struggle or resistance, muqawama, against Israel was a core ideological belief that it rigidly sustained. For that reason, the Hamas struggle with Israel was not territorial but existential.
Thus, older diplomatic paradigms from the Arab-Israeli conflict did not apply when dealing with Israel and Hamas. Indeed, in the aftermath of Israel’s 2005 pullout from the Gaza Strip, the rate of rocket fire from Hamas and other organizations did not diminish as might have been expected. To the contrary, annual rocket fire against Israel increased by 500 percent between 2005, the year of withdrawal, and 2006, the year that followed, indicating that Hamas’ desire for war was not a function of a territorial grievance alone, but rather of other, deeper ideological factors.4
The Third Gaza War and the United Nations
Given the limits that existed for traditional bilateral diplomacy, Hamas sought to benefit from multilateral frameworks, like the United Nations. In January 2009, at the end of the first Gaza conflict, Operation Cast Lead, the UN Security Council adopted Resolution 1860, which did not condemn Hamas for formally ending the tahdiya and starting the war by firing thousands of rockets into Israel. It said nothing about the captured Israeli soldier Gilad Shalit. In fact, the resolution did not even mention Hamas or its responsibilities for averting escalation. The draft of the resolution was understandably opposed by Israel’s senior leadership. It demonstrated how the UN could be used by Hamas, through states willing to argue its cause in order to secure a diplomatic advantage.5
During the 2014 Operation Protective Edge, several notable UN agencies appeared to be prepared to uncritically recite Hamas claims in their public statements. UN Commissioner for Human Rights Navi Pillay declared at the UN Human Rights Council on July 23, 2014, that “around 74 percent of those killed so far were civilians.”6 There was no way that she could have known at such an early stage what the exact percentage was, yet Pillay’s numbers spread like wildfire in the international media, and were cited by commentators at the BBC as well as CNN, thereby molding international public opinion and serving the Hamas narrative. Subsequent casualty analyses show that her claim was completely baseless.7 The UN appeared to be promoting a “rush to judgment” against Israel.
The Role of UNRWA
Hamas was not alien to a number of UN specialized agencies and not held by them at arm’s length, as it was by UN member states. UNRWA, the UN Relief and Works Agency, which was responsible for providing humanitarian aid in Palestinian refugee camps, employed roughly 20,000 Palestinians in the West Bank and Gaza Strip. In 2003, various unions through which the UNRWA workers were represented overwhelmingly voted for Hamas candidates in the union elections, indicating the influence Hamas already had at that time. Another important UN agency, the UN Development Program (UNDP), was regularly moving funds through the Arab Bank in 2003-2004 to well-known Hamas front organizations like the “Tulkarm Charity Committee.”8
UNRWA, in particular, dropped all pretenses of being a neutral body, which UN agencies claim is their policy when they are interposed within an armed conflict. UNRWA’s deputy commissioner, Margot Ellis, complained at a UN donor conference about a lack of construction materials in the Gaza Strip, pointing to “the illegal blockade imposed by Israel.” She added that the blockade had “now intensified with the non-admittance of building supplies urgently needed for UNRWA construction projects – to build schools and rehabilitate shelters.” Ellis did not even raise the fact that Hamas had been siphoning off building supplies for its vast underground tunnel network, the extent of which was revealed by Operation Protective Edge.9
UNRWA, the UN Relief and Works Agency, played a role that appeared to be on the side of Hamas. On three separate occasions, Palestinian rockets were found to have been stored in UNRWA schools. Hamas also fired rockets from the vicinity of UN facilities.
By the time of Operation Protective Edge, UNRWA was playing a role that appeared to place the organization clearly on the side of Hamas. On three separate occasions, Palestinian rockets were found to have been stored in UNRWA schools – on July 16, July 22, and July 29. To make matters worse, after discovering the rockets, UNRWA handed them back to Hamas. A senior Israeli official told the Times of Israel, “In other words UNRWA handed to Hamas rockets that could well be shot at Israel.”10 During the war, another serious problem with UNRWA facilities emerged: Hamas was firing rockets and mortars in the vicinity of UN facilities, like in the case of UNRWA’s Shahada al-Manar Elementary School for Boys in the Zeitoun district of Gaza City or in between UNRWA’s Distribution Center and its Health Center in Jabaliya.11
Another revealing incident involved the UNRWA school in Beit Hanoun, located in the northern part of the Gaza Strip, which had served as a shelter for Gaza residents. On July 24, the school was struck by rockets and mortar shells. UNRWA charged that it had tried to negotiate with Israeli forces regarding “a pause in the fighting during which they would guarantee a safe corridor to relocate staff and any displaced persons.”12 The UNRWA spokesman, Chris Gunness, claimed that UNRWA tried to coordinate with the IDF on a window for civilians to leave, but “it was never granted.” The IDF vociferously disagreed with Gunness, asserting that it passed a message to the Red Cross to evacuate civilians from Beit Hanoun between 10 a.m. and 2 p.m., but that Hamas prevented the evacuation. Not surprisingly, Israeli sources called Gunness’ accusation “a flat-out, complete and total lie.”13 Nonetheless, on December 6, 2014, the IDF Military Advocate General disclosed that he had ordered a criminal investigation into what exactly transpired in Beit Hanoun on July 24 in light of UNRWA’s complaints. In short, serious charges of alleged IDF misconduct are not dismissed out of hand, but rather, in Israel’s view, require careful investigation.14
UN Fact-Finding Commissions
The UN also played a special role in the Gaza Strip through the establishment of fact-finding commissions, chiefly investigating war crimes allegations against the Israel Defense Forces. In 2009, the UN Human Rights Council turned to a South African judge, Justice Richard Goldstone, to lead such a commission. The UN Human Rights Council had been largely discredited due to its obsession with Israel. No less than the UN Secretary-General at the time, Kofi Annan, criticized the Human Rights Council for its built-in biases, saying, “Since the beginning of their work they focused almost entirely on Israel, and there are other crisis situations, like Sudan, where they have not been able to say a word.”15
This characteristic of the Human Rights Council continued for years. In 2009, for example, it declined to launch an investigation regarding Sri Lanka, where the number of fatalities from its war against the Tamil Tigers was ten times greater than in the case of Gaza. During Operation Protective Edge, in July 2014, the Human Rights Council called for establishing a commission of inquiry to investigate “violations of international humanitarian law” by Israel in the recent conflict. It turned to a Canadian academic, Professor William Schabas, to head the commission.16 (Schabas resigned on February 2, 2015, after it was revealed that he had done consulting work for the PLO in 2012.)
The fact-finding commissions of the UN Human Rights Council had a number of inherent flaws. They looked into incidents that occurred months earlier in areas of Gaza that had not been cordoned off, like a crime scene in a domestic police investigation. Hamas appeared to have tampered with these sites in the past, leading the Goldstone Report to erroneously conclude, for example, that the Israeli Air Force struck a flour mill in order to starve the local Palestinian population. Israel countered that air force records indicated that there had not been any air strike against the flour mill. Thus, Israel’s own investigators suggested that any air force ordnance found there had been deliberately planted by Hamas.17 Finally, Goldstone’s fact-finding panel received testimony from Palestinian witnesses who were not cross-examined and who gave testimony under the watchful eyes of Hamas representatives. Yet despite these transparent flaws in their work, the UN fact-finding panelists were prepared to put forward far-reaching conclusions that incriminated Israel.
To make matters worse, the UN commissions on Gaza projected the aura of a legal proceeding, even though they did not operate according to the procedures used in criminal trials. To his credit, Goldstone admitted the legal weaknesses of his own fact-finding commission: “If this was a court of law, there would have been nothing proven.”18 Nevertheless, the Goldstone Report was prepared to make legal recommendations. It concluded, for example, that the case of Israel’s first Gaza war, Operation Cast Lead, should be turned over to the International Criminal Court.
Another glaring flaw in the fact-finding commissions of the UN Human Rights Council was that the resolutions creating them reached conclusions about what had transpired before the commissions had even begun their work. Take, for example, Resolution S-21/1, adopted on July 23, 2014, that created the Schabas Commission. In paragraph 2, the resolution “condemns in the strongest possible terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations…particularly the latest Israeli military assault on the occupied Gaza Strip by air, land and sea.” The resolution then makes reference to “disproportionate and indiscriminate attacks” by Israel as well as the “targeting of civilians.”19 In other words, the mandate that was given to the Schabas Commission already contains the findings that the Human Rights Council wants it to reach. One must conclude that the Schabas Commission is a “kangaroo court.”
Qatar, Turkey, and Iran: Third Parties and the Problematic Road to a Ceasefire
In past rounds of the Arab-Israeli conflict, outside powers could play a constructive role, at times, in bringing wars to an end. Egypt certainly had been a bridge between Israel and Hamas that allowed indirect understandings for a tahdiya, as described above. The Egyptian security establishment also worked out the arrangements for freeing Israeli soldier Gilad Shalit from Hamas. During the Clinton administration, although Syria was a supplier of arms to Hizbullah, the U.S. nonetheless looked to Damascus to exercise its influence with the Iranian-sponsored Lebanese organization to re-establish a ceasefire with Israel. Syria, in fact, was formally brought into an international monitoring group in Southern Lebanon in 1996, whose mission was to monitor ceasefire arrangements there.
During Operation Protective Edge, Egypt continued to play a constructive role as a third party, seeking to advance a ceasefire on July 15. The Egyptian proposal included a provision that “Israel shall cease all hostilities against the Gaza Strip via land, sea, and air, and shall commit to refrain from conducting any ground raids against Gaza and targeting civilians.” It also insisted that “All Palestinian factions in Gaza shall cease all hostilities from the Gaza Strip against Israel via land, sea, air, and underground, and shall commit to refrain from firing all types of rockets, and from attacks on the borders or targeting civilians.”20 The Egyptian proposal essentially amounted to an unconditional ceasefire. It did not guarantee Hamas that Gaza would receive a seaport or airport, which is what the Hamas leadership hoped for. Hamas turned down the Egyptian proposal, while Israel accepted it.
Egypt proposed an unconditional ceasefire on July 15. While Israel accepted the Egyptian proposal, Hamas turned it down, thereby becoming responsible for all of the destruction in Gaza after that date, when 90 percent of the Palestinian fatalities in the war occurred.
It is for that reason that Hamas became responsible for all the destruction in the Gaza Strip after July 15, when the war could have been stopped. In a detailed interview to the Egyptian daily al-Akhbar on November 30, 2014, Palestinian President Mahmoud Abbas made this very charge. He said that “because of Hamas’ obstinacy…during this time everything was destroyed.”21 Khaled Mashal, the head of the Hamas political bureau, expressed his disappointment with Abbas’ statements elsewhere that Hamas could have prevented the deaths of thousands of Palestinians if it had accepted the Egyptian initiative earlier than it did. Israel assessed that nearly 90 percent of Palestinian fatalities in the war occurred after the Egyptian ceasefire offer was made and rejected by Hamas.22
Growing numbers of reports showed that Hamas’ refusal to accept the Egyptian ceasefire did not come from its own militancy alone, but from the influence of Qatar as well, which sought to torpedo any truce between the warring parties. An analysis in the pan-Arab daily al-Hayat suggested that at one point Qatar was threatening to expel Khaled Mashal if Hamas accepted the Egyptian proposals.23
Nor could Turkey play any constructive role with Hamas, despite the intimate relations they had built since 2006. Turkey had allowed Hamas to create an operations center on Turkish territory.24 Under such circumstances, diplomacy could not attenuate the Gaza conflict, as the most important outside powers were actively opposing de-escalation and a cessation of hostilities.25