by Leonard Grunstein

Gaza is occupied by Gazans. Neither Egypt nor Israel, its territorial neighbors, occupy Gaza, as a matter of fact or law.

Yet, the provocative terms “occupation” and “occupier” are casually used, by many in the news media and others, to describe the relationship between Gaza and Israel. The words project an explosive image of Israel, as a so-called occupier, which is assumed to be oppressing an otherwise innocent and peaceful Gaza. The portrayal is expressed with such certainty, as if the occupation were an obvious truth; but it is nothing more than fake news. Gaza is not occupied by Israel and Gaza’s problems are self-inflicted[i].

The foundational definition of the term occupation under International Law is embodied in the Hague Convention[ii]. It provides that a territory is only considered occupied when it is actually placed under the authority of a hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. There have been a number of cases over the years, which have analyzed whether an occupation existed under International Law and the nature of its essential constituent elements: (1) a military presence in the occupied territory; and (2) effective control of the territory.

One of the lead decisions is a judgment by the United States Military Tribunal in Nuremberg[iii], in 1948, in the aftermath of World War II. The Tribunal held that an occupation was more than an armed conflict, which destroyed any organized resistance. It also required maintaining a military presence and exercising governmental authority over the area conquered, to the exclusion of the established civil government.

In 2003, an International Tribunal[iv], dealing with claims of human rights violations in the aftermath of the breakup of Yugoslavia, further refined the standards for determining when an occupation existed, under International Law. It focused on the degree of control necessary to support such a finding. The Tribunal held that control meant actual and effective overall control over a territory and listed the indicia to be considered in making such a determination, as outlined below.

As a threshold matter, the military forces of the conquered territory must have surrendered, been defeated or withdrawn[v]. The putative occupier must have established its own temporary governmental administration over the territory, which it substituted for the displaced original government that it had rendered incapable of functioning publicly. The occupier had to be in a position to issue and enforce directions to the civilian population of the conquered territory. In addition, it had to maintain a military presence, on the ground, in the territory. The military force present either had to be sufficient, on its own, to make its occupying power felt or there had to be a capacity to send additional troops, within a reasonable period of time, to do so.

Unless all of these criteria were satisfied, there was no occupation, as a matter of law. The Tribunal went on to say the law of occupation applied only to those areas actually so controlled by the occupying power. The occupation ceased when the occupying power no longer forcibly exercised this degree of actual and effective control.

In 2005, an International Tribunal[vi], dealing with the conflict between Uganda and the Congo, focused on the requirement of a continuing military presence, as a condition to finding there was an occupation. Its analysis is cogent. It held that merely having the potential to invade and control a territory, not coupled with an actual presence and effective control, was insufficient.

The requirement that all these tests be met, in order to establish the existence of an occupation, makes eminent sense. Otherwise, it might well be argued that the United States occupies Canada and Mexico; not because it does, but because it could. The United States also has security arrangements with and military bases in such far-flung places as Germany, South Korea, the Philippines and elsewhere. Yet it would be nonsensical to suggest that it was, therefore, an occupying power in those countries. This is because it does not, in fact, exercise effective control. Moreover, a security arrangement or military presence, pursuant to an agreement with the host country, like those noted above, is neither hostile nor forcibly imposed.

How then could the terms “occupation” and “occupier” be so cavalierly, albeit inappropriately, applied to Israel’s present relationship with Gaza? How is it that so many are taken in by this canard? It may help to outline some of the modern history of Gaza to better understand how ludicrous it is to continue to mislabel Israel as an occupier of Gaza.

After Israel declared independence in May of 1948, Egypt and four other Arab countries invaded it. The Gaza Strip was conquered by Egypt and its Jewish community of Kfar Darom[vii] was destroyed. Egypt continued to control Gaza, even after the 1949 Armistice Agreement with Israel. Egypt only lost control of Gaza as a result of the Six Day War, which it precipitated in June of 1967.

A peace treaty was signed with Egypt in March of 1979. Egypt demanded and received the return of all of the Sinai under the treaty. It did not, however, require control of Gaza.

Israel administered Gaza until it transferred governmental authority over Gaza to the Palestinian Authority, in 1994, pursuant to the Gaza-Jericho Agreement[viii]. It entirely withdrew from Gaza, including removing any military presence and all Israeli residents, in September of 2005.

Under the Oslo II Agreement[ix] and the subsequent Disengagement Agreement of 2005[x] with the Palestinian Authority, Israel negotiated and obtained certain rights to patrol Gaza’s coastal waters and air space. This was intended to enable Israel to interdict illegal weapons deliveries to Gaza, which are expressly prohibited under the Agreements noted above. These agreed upon rights do not constitute effective governmental control[xi] over Gaza.

Hamas seized control of Gaza from the PA, in 2007[xii]. It remains the governing authority in Gaza to this day.

In reflecting on theses circumstances in 2008, the Supreme Court of Israel, in the Al-Bassiouni case[xiii], held that there was no occupation by Israel of Gaza, under International Law. It found that Israel did not have effective control over Gaza and Israeli soldiers were no longer stationed in Gaza. Military rule had ended and Israel had fully withdrawn from Gaza. It was, therefore, not in a position to enforce order and govern civilian life in Gaza. The Court was well aware of the security and other rights and obligations Israel had under the Oslo II Agreement and the Disengagement Agreement of 2005. Indeed, the very subject matter of the case was the arrangement under which Israel supplied Gaza with a portion of its electrical power requirements.

The European Court of Human Rights[xiv], in 2015, also ruled on whether control of the airspace above a territory and the adjacent sea was sufficient to constitute an occupation under International Law. The Court held that an occupation did not exist unless the alleged occupier had its military troops on the ground in the subject territory, in addition to being in a position to exercise effective control, without the consent of the sovereign. The Court found that the presence of foreign troops was a sine qua non requirement for there to be an occupation. As the Court noted, an occupation is inconceivable without “boots on the ground”. It went on to say, therefore, forces exercising naval or air control did not suffice.

Gaza has borders with Israel and Egypt. Both Israel and Egypt, like so many other countries, have a security presence on their own side of the border, but not in Gaza. They also have the general right to control their own borders and close them to non-citizens[xv]. Our own US Supreme Court[xvi] recognized this as a sovereign right of all countries. It held it was an established principle of International Law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.

Gaza also has a security presence on its side of the borders with Egypt and Israel. It controls who and what enters and leaves[xvii] Gaza.

The Egyptian border crossing with Gaza is not controlled by Israel; it is controlled by Gaza and Egypt. Gaza also has the right to build an international airport[xviii] and use of its own adjacent territorial waters, but not for the purpose of importing weapons and other such materials proscribed under the Agreements noted above. Notwithstanding the foregoing, Hamas has managed to smuggle in rockets, other prohibited weapons and war-making materials, including by sea, over land and through underground tunnels illicitly constructed under the Egyptian border[xix].

Alas, Gaza and its people are under the control of Hamas, a terrorist organization[xx]. Its avowed goal, enshrined in its Charter, is the destruction of Israel[xxi]. It also espouses anti Semitic and genocidal doctrines[xxii] directed against the Jews, generally.

Hamas has attacked both its neighbors, Egypt[xxiii] and Israel. This required each to close their borders from time to time. However, despite Hamas’s continuing malevolent activities, they have each reopened border crossings to provide humanitarian aid to the people of Gaza[xxiv]. It appears that Israel is more concerned about the health and welfare of the people of Gaza than Hamas or the PA[xxv].

Instead of choosing peace[xxvi], Hamas chose to wage an offensive war against Israel, shooting many thousands of rockets and mortar shells into Israel, launching explosive and incendiary devices against Israel and attempting armed incursions of Israel. Hamas uses human shields and creates provocations in order to cause incidents, which as Hamas intends, are then dutifully reported by the news media. All this is instead of living in peace with its neighbors and devoting itself to the development of Gaza for the benefit of its people[xxvii]. Yet, Hamas remains firmly in control of Gaza and continues, however unwisely, govern it[xxviii].

Consider, if Hamas were so interested in the health and welfare of the people of Gaza and their ability to travel outside of Gaza, then why is it spending so much treasure on the surreptitious acquisition of missiles and other offensive weapons prohibited under the Agreement with Israel[xxix] and building terror tunnel? Why is not focused, instead, on building the international airport permitted under the Agreement with Israel and other infrastructure to improve the lives of the people? Why is it continuing to attack Israel and Egypt? Neither Egypt nor Israel threatens Gaza. Before it proceeded on this reckless belligerent path, Gaza was doing mutually beneficial business with Israel; Gazans regularly worked in Israel; and Gaza’s GDP was growing, not declining. The issue is not Israel or Egypt; it is Hamas that is the problem.

Why is the news media not focused on these matters? Why is it instead reinforcing the fiction of a so-called occupation? Why are many people taken in by this con, perpetuated by Hamas, with the active or at least complicit support of the news media? Why does the media continue, repeatedly, to make the same mistake of relying on what amounts to Hamas generated propaganda? When will they and we learn that there is something wrong afoot? Indeed, It was only a little more than a month ago, when a violent invasion of Israel, by Hamas controlled Gaza was falsely called a peaceful protest[xxx] and the armed participants, who were shot, incorrectly referred to as protestors[xxxi]. There is a pattern here; it’s not just a one- time innocent mistake that might be casually overlooked.

Perhaps, the answer, in part, lies in how news reports originate in places, under the tight control of a terrorist or totalitarian regime, like Hamas[xxxii]. Often reporters are, figuratively, parachuted in, to cover a conflict or other explosive situation. Their guides are often untrustworthy and more likely to be minders in the employ of the regime’s security services. They don’t have existing sources, proven to be reliable, or other facilities for independently checking out a story. The local press is neither free nor reliable. Hamas has censored, threatened, intimidated, jailed, silenced and, in effect, co-opted the local press into its service[xxxiii]. Indeed most of the local news media is funded by Hamas. Given the hold Hamas has on the people of Gaza, even seemingly spontaneous interviews of individuals on the street are suspect, as nothing more than Hamas staged Kabuki Theater.

Foreign journalists, on the ground in Gaza, are easy prey for the Hamas information/propaganda apparatus. They usually only see what Hamas wants them to see. With pressing deadlines, they often just report the unverified information supplied by inherently unreliable Hamas linked sources. As a result, the news media often get it wrong. Just check the articles I’ve cited or the online corrections site for a newspaper and see, for yourself, how many times this occurs. Unfortunately, by the time the truth ultimately emerges, it is too late and it is not afforded the same coverage or interest as the original flawed report.

But this is only a part of the story. It appears there are more insidious reasons for the biased and otherwise less than truthful reporting regarding Israel and Gaza. In 2014, Hamas attacked Israel with many thousands of rockets, targeting exclusively civilian areas in Israel. Many of the rocket and mortar attacks were launched from densely populated neighborhoods, in the vicinity of hotels and offices (where foreign journalists[xxxiv] were located), mosques, hospitals and schools. Yet, somehow, reports or photographs of this activity were not published by the news media at the time. Instead, we were bombarded with compelling images and news reports focused on the tragic consequences of what the media falsely described as indiscriminate or even intentional bombing of civilian targets in Gaza.

The news media just repeated the misinformation received from Hamas controlled sources, as if it were a credible[xxxv]. Any counter-narrative, which contradicted the Hamas one, appears to have been suppressed. I can’t help but wonder, what happened to the highly touted journalistic standards of integrity and editorial safeguards[xxxvi] designed to prevent this kind of abuse? They were nowhere apparent in the often false, misleading, biased[xxxvii] or hyperbolic pronouncements[xxxviii] of reporters on the ground in Gaza or news anchors at home, seemingly caught up in the moment. It was not serious, thoughtful and responsible reporting; it was theater. The more gruesome the visuals, the better TV it made. It was a Hamas orchestrated dramatic presentation, right out of its propaganda playbook.

It was only later that we learned about the travesty of this reporting, when the Hamas inspired canard was laid bare. The sites Israel targeted were being used for rocket or mortar attacks against Israel. It was, most assuredly, not intentionally or indiscriminately bombing civilian targets. To the contrary, Israel took precautions to safeguard civilians, including providing advance warning of the sites to be bombed. As a result, the casualty figures for innocent civilians were significantly lower than is typical, in comparable conflicts elsewhere in the world[xxxix]. This was achieved, despite Hamas’ urging civilians to stay, become martyrs and not heed Israel’s advance warnings to leave the area.

Imagine if Hamas actually cared about its people? It could have avoided any civilian casualties by choosing not to attack Israel. Instead, it elected to start an unprovoked and offensive war against Israel, launching rocket and mortar attacks against civilian areas in Israel and using its own civilian population as human shields. Hamas intentionally and mercilessly put Gazan children and adults in harms way in order to maximize civilian casualties.

How was it then that the reality of the situation was callously ignored, even as rockets were being fired in the vicinity of news studios and hotels where news people stayed? Could the journalists in Gaza have been so unaware of everything occurring around them? It strains credibility to accept this as the explanation. Didn’t good reporting require checking where the rockets were fired from and to confirm whether the Hamas tales about indiscriminate bombing were, in fact, true?

Later, it emerged that journalists were being intimidated, threatened and acting under duress[xl]. They risked bodily harm or being expelled from Gaza, if they challenged Hamas and reported news contradicting its false narrative[xli]. Cameras were broken and reporters were prevented from filming anti-Hamas demonstrations, where many Gazans were shot dead by Hamas operatives. Some foreign journalists were even threatened with death. Editors[xlii] worried about their people on the ground in Gaza and said nothing. Many reporters on the ground in Gaza feared reprisals and, hence, didn’t provide a report of what was actually occurring until they were safely out of Gaza. Eventually, the true facts began to leak out[xliii]. However, it wasn’t until well after the fact that the Foreign Press Association condemned Hamas’ intimidation tactics and interference with their reporting in Gaza[xliv].

When will the media recognize that, whether willingly or unwillingly, they have, in effect, become an integral part of the Hamas apparatus intended to spread misinformation? When will we factor this into our appreciation of what we are hearing or seeing on the news or elsewhere?

It is important for us not to be so naïve as to believe that everyone in the media is wise or devoted to the truth. History teaches us otherwise. Never underestimate the power of laziness or stupidity. No profession is immune. Sometimes, though, the motives are more sinister. A reporter can be biased and influenced by deeply held ideological beliefs, including a misplaced sense of virtue too closely identified with the self-proclaimed victimhood of Hamas controlled Gaza. Some can be callous and cynical about the content of their reporting. They recognize the power of glaring headlines and displaying raw and horrible images, no matter the provenance or whether truthful or accurate. They are only interested in the potential for ratings generated from a viewership addicted, like voyeurs, to savage imagery. They may not intend to be enablers[xlv], but, when dealing with terrorist enterprises like Hamas, this is the net effect of their misguided actions. These are not new phenomena and its masters were and are some of the most disreputable forces in modern history[xlvi].

The major difference between the past and the present are the enhanced modes of communication in today’s information age. The evil intent of propaganda has not changed. However, its effect has been enhanced because of the power of this new media to reach and influence people. The propagation of disinformation via social media and other Internet platforms has become a near science[xlvii]. Hamas and the digital propaganda apparatus it controls have become masters of the medium, using social media, bots, trolls and bogus or less circumspect news sites to disseminate and repeat provocative and pithy slogans, false information and bogus[xlviii], staged or manufactured images, as potent tools to fool us.

Many innocent people are profoundly affected or even overwhelmed by the seemingly virtuous sentiments expressed. The constant repetition of messages that go viral makes them seem reliable. It is also so easy to succumb to their simplicity and seductive charm, championing the rights of supposed victims. Never mind that the victims may actually be the aggressors. It is so hard not to virtue signal acceptance of the apparent popular wisdom; it’s all but irresistible. It is a gift to propagandists and others seeking to disseminate their agenda driven messages. This may soon become an even more challenging problem, as Artificial Intelligence is adapted to become a player in this black art of disinformation. I can’t help but reflect on the prescience of the Talmud[xlix], more than 1,500 years ago, in predicting that in a future period[l], which may be our time, truth would be absent[li].

We, therefore, must steel ourselves, not to be so naïve and trusting. It is a critical lesson that informs how we might engage the new media of the Internet and social media. Indeed, the first clue that a source may be tainted is when it immediately engages our emotions and overwhelms us with a sense of injustice and outrage. It is also not easy to challenge proponents of a seemingly virtuous cause or the reliability or truthfulness of the message, without seeming to challenge the perceived virtue of the cause expressed. This is because challenging the applicability of noble sentiments is often confused with denying the validity of those sentiments.

Take a breath and wait a moment. We must be skeptical and not act out of an emotional connection to the perceived virtue of a cause.

Consider the apocryphal tale of the tragic death of an 8-month old baby, who reportedly died from tear gas inhalation at the Gaza border with Israel, in Hamas’ recent attempt at an armed invasion of Israel. Who could not be moved by the accompanying image of a dead child, held in the arms of a grieving mother, in the morgue of a hospital.

As it turns out, the whole story was contrived by Hamas, which paid for the parents to lie about the cause of death of the baby. It was not inhalation of tear gas at a border clash; rather it was a blood disease, which caused the baby’s death. It was the same deadly disease that felled her sibling earlier in the year[lii].

The version of the story Hamas invented and disseminated engendered a great deal of news coverage, with predictable results. As Hamas intended, it created a pall, which prevented any critical public discourse about the Hamas led armed invasion of Israel and what actually was occurring at the Gazan border with Israel. The true story did not receive much news coverage. I can’t help but wonder, where’s the outrage about this abuse. The news media were mere tools, used by Hamas to communicate falsehoods, in service of its agenda to delegitimize Israel.

Consider also the context. Much as we might wish that Hamas were conducting a so-called peaceful protest along the Gaza border, this was not the case.

Let’s be clear, it was not peaceful; it was not a protest; and it was not along the Gazan border with Israel. It was a violent armed invasion of Israel, itself[liii].

As we now know conclusively, 53 of the 60 people, reported as fatally shot by Israeli soldiers, were Hamas or Islamic Jihad operatives[liv]. Hamas’ cynical and callous use of the Gazan people to mask, aid and reinforce an armed invasion by Hamas operatives has been acknowledged by Hamas[lv]. They were seeking to infiltrate into Israel, concealed in the confusion and surge of thousands of people attempting to breach the border fence[lvi]. Many were armed with guns, grenades, improvised explosive devices and other weapons. Their intention was ignoble; it was to kill Israeli civilians and commit mayhem within Israel. The Gazans were callously and recklessly urged on by Hamas to invade Israel, despite the many warnings by Israel not to approach the border fence. Hamas wanted to create martyrs. Yet, some in the mainstream media, remained obsessed with promoting the false narrative[lvii], created by Hamas, that this armed invasion was somehow a peaceful protest.

The fact that so many attacking Israel were only injured, not killed, speaks volumes. Israel used tear gas and predominately other non-lethal means to turn back the incursion on its sovereign territory. Even when shots were fired, Israeli soldiers sought to wound, not kill. Considering the pogroms that would have ensued had the terrorists and other Gazans been able to break through the border fence and attack the nearby civilian neighborhoods, the restraint was extraordinary. It is consistent with the highest standards of military conduct, as codified in the Talmud[lviii] and in the Halacha[lix], as well as, International Law[lx]. Ambassador Nikki Hailey eloquently supported Israel’s right to defend itself against the Gazan onslaught. She noted that no nation would have acted otherwise and glowingly acknowledged the extraordinary restraint shown by Israel in dealing with the situation[lxi].

Amazingly, even as Israel continues to defend itself against Hamas attacks, it still also has feelings of genuine empathy for the people of Gaza. Unlike many who just emote and vociferously express outrage about the crises in Gaza, Israel is actually doing something constructive to help. It continues to provide humanitarian aid to the people of Gaza, despite all the challenges posed by the terrorist regime of Hamas. The crises in Gaza is not only self-inflicted, it is perpetuated and needlessly deepened by Hamas[lxii]. Israel is also lending a helping hand and real assistance to the Syrian refugees on its northern border, in spite of all the dangers[lxiii]. How many of us sitting here can say the same.

Preventing armed terrorists from entering Israel and killing innocent civilians is a sacred mission. Israel has a very diverse society. Its citizens include members of the Jewish, Christian, Moslem, as well as, those of many other faiths, creeds, denominations and beliefs. Israeli society is a veritable kaleidoscope of color, orientation and places of origin from throughout the world. It is one of the most progressive places in the world. This cannot be said about Hamas controlled Gaza. Hamas is and was the aggressor and yet it manages to cast itself as the victim in this tragic drama it authored, produced and presented, with the help an accommodating news media.

Has propaganda, therefore, triumphed? Its object is to spread misinformation and quash any reasoned discussion. It appears that it is succeeding in many quarters. What can we do?

We must demand the unvarnished truth and balanced and unbiased news reporting. We have to challenge myths. How else can we have a constructive discourse? I have visited Gaza. It is not all a large refugee camp or an open-air prison, as some have proclaimed. It has many beautiful buildings and neighborhoods. If you don’t believe me then check it out yourself, by googling: Gaza beautiful pictures. Indeed check out Gaza airbnb. Be prepared for a pleasant surprise; it looks very little like the conditions described by many talking heads on television. By the way, similarly, Ramallah, Hebron and other Palestinian cities and towns in Judea and Samaria. They boast luxury buildings that rival those here in the US and more are being built.

It’s time to recognize the reality of the situation, as it exists and not as spuriously promoted by Hamas and their knowing or unknowing propaganda agents. As a matter of fact and law, there is no occupation of Gaza by anyone other than the Gazans living there. Its time to end the masquerade about Hamas controlled Gaza wanting peace, if only Israel would satisfy some suicidal condition. These, like the moving of the US Embassy to Jerusalem, are nothing more than pretexts that are intended to conceal Hamas’ express goal of destroying Israel.

Peace should have been achieved when Israel fully withdrew from Gaza, in 2005. As the wise Charles Krauthammer, of blessed memory, wrote[lxiv] almost a dozen years ago:

“…Israel evacuated Gaza completely. It declared the border between Israel and Gaza an international frontier. Gaza became the first independent Palestinian territory in history. Yet Gazans continued the war…Why? Because occupation was a mere excuse to persuade gullible and historically ignorant Westerners to support the Arab cause against Israel. The issue is, and has always been, Israel’s existence. That is what is at stake.”

Not much has changed in all these years. Peace is still available simply by Gaza stopping its attacks on Israel and Egypt and just living in peace. The framework for peace is and has been in place for many years ago. All that’s left to do is for Gaza to honor it.

As Charles Krauthammer cautions, we can’t continue to be gullible and historically ignorant. The issue is and always has been Israel’s existence.

It’s time for Hamas to stop the charade, recognize Israel and stop attacking it. We should no longer be excusing or funding their misbehavior or give credence to their pretexts. All Gaza has to do to have peace is stop attacking its neighbors. Let the blessing of peace prevail.

[i] See Gaza’s Miseries Have Palestinian Authors, an opinion piece by Brett Stephens, in the New York Times, dated May 16, 2018.

[ii] Convention IV, Annex to the Convention Regulations Respecting the Laws and Customs of War on Land, Section III: Military Authority over the Territory of the Hostile State, Article 42.

[iii] United States v. List, United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Volume VIII, 1949, CASE No. 47, THE HOSTAGES TRIAL, TRIAL OF WILHELM LIST AND OTHERS, UNITED STATES MILITARY TRIBUNAL, NUREMBERG, Part I, beginning at page 38.

[iv] Judgment, by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia, in Prosecutor v. Naletic and Martinovic (Case No. IT-98-34-T), dated March 31, 2003.

[v] The Tribunal noted that areas where battles were still being fought were not to be considered occupied territory; although, this did not include sporadic resistance in areas already conquered.

[vi] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), I.C.J. Reports 2005, beginning at page 168.

[vii] See Jewish Communities Lost in War of Independence, on Israel Ministry of Foreign Affairs website.

[viii] The Gaza-Jericho Agreement, signed in Cairo, on May 4, 1994.

[ix] The Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, dated September 28, 1995 (Oslo II). It follows up the original Oslo accord, embodied in the Israel-PLO: Declaration of Principles on Interim Self Government Arrangements, signed in Washington, D.C., on September 13, 1993. By its terms, it supersedes the Gaza-Jericho Agreement, dated May 4, 1994, The Agreement on the Preparatory Transfer of Powers and Responsibilities, signed in Erez, on August 29, 1994 and the Protocol on Further Transfer of Powers and Responsibilities, signed in Cairo, on August 27, 1995.

[x] Israel-Palestinian Authority Agreement on Movement and Access and Agreed Principles for Rafah Crossing, signed on November 15, 2005.

[xi] See Israel and the Struggle over the International Laws of War, by Peter Berkowitz, Hoover Institution Press-2012; Occupation and other forms of Administration of Foreign Territory, Report of Expert Meeting, by Tristan Ferraro, of the ICRC, dated March 2012; and Is Gaza Occupied?: Redefining the Status of Gaza Under International Law, by Elizabeth Samson, in the American University International Law Review, Volume 25, Issue 5, Article 4 (2010). See also the 2015 Judgments of the European Court of Human Rights, discussed below.

[xii] See Hamas Seizes Broad Control in Gaza Strip, by Steven Erlanger, in the New York Times, dated June 14, 2007.

[xiii] Jaber Al-Bassiouni Ahmed and others v Prime Minister and Minister of Defense (HCJ 9132/07), Judgment dated January 27, 2008.

[xiv] Sargsyan v Azerbaijan (Application no. 40167/06), Judgment dated June 16, 2015 and Chiragove and others v Armenia (Application no. 13216/05), Judgment dated June 16, 2015.

[xv] There are limited exceptions under International Law for asylum seekers and refugees.

[xvi] Ekiu v US, 142 US 651, 659 (1892).

[xvii] See, for example, As Gaza hospitals suffer shortages, Hamas refuses Israeli medical aid, by Judah Ari Gross and AP, in the Times of Israel, on May 16, 2018; Hamas border guard killed in suicide attack on Gaza-Egypt border, by Jack Khoury, in Haaretz, dated August 17, 2017; Hamas is known for its suicide attacks. Now it’s been hit by one for the first time, by Hazem Balousha and Loveday Morris, in the Washington Post, dated August 17, 2017; and Hamas closes Gaza border following assassination, by Elior Levy, on Ynet, on March 26, 2017.[xviii] Annex I, Article XIII of the Oslo II Agreement.

[xix] See, for example, Shin Bet: Hamas bringing weapons, rocket-making material into Gaza, by Judah Ari Gross, in the Times of Israel, dated May 16, 2016; and Israel: Rockets Smuggled Into Gaza, by Steven Gutkin, the Associated Press, dated April 28, 2006; and reported in the Washington Post. See also Hamas Firing China-Designed, Syria-Made M-302 Rockets: Israel, on the NBC news site, dated July 10, 2014.

[xx] Hamas is designated a terrorist organization by the US. See US State Department Country Reports on Terrorism, dated April 27, 2005, Chapter 6, Terrorist Groups, listing Hamas as a Foreign Terrorist Organization.[xxi] See Articles 6, 11, 13 and 14 of the Covenant of Hamas.

[xxii] See Article 7 of the Covenant of Hamas. See also, for example, Hamas in Their Own Words, dated May 2, 2011, on the ADL website; Anti Semitic Hate Speech in the Name of Islam, by Matthias Küntzel, in Der Spiegel online, dated May 16, 2008; Palestinian Nazi flags and Hamas talking points, by Sean Durns, at JNS, dated April 26, 2018; and Hamas co-founder admits ‘we are deceiving the public’ about peaceful protests, by TOI staff, at the Times of Israel, dated May 17, 2018.

[xxiii] See Hamas: Increased security along Gaza-Sinai frontier after deadly attack – Arab-Israeli Conflict, by Adam Rasgon, in the Jerusalem Post, on July 9, 2017; Egypt seals last breach in Gaza border, a Reuters report on the Australian Broadcasting Corporation news website, dated February 3, 2008; and Egypt and Palestine: The Hamas Factor – Palestinian Nationalism: Regional Perspectives, by Hamr Hamzawy, dated September 8, 2017, on the Carnegie Endowment for International Peace website;

[xxiv] See Israel to reopen Gaza crossing after rioters burn it for 3rd time, by Judah Ari Gross, in the Times of Israel, on May 15, 2018; and Egypt opens Gaza border following three-day closure, by Rabie Abu Zamil, on the Anadolu Agency website, dated July 2, 2018.

[xxv] See The Palestinian Authority Rejects Israeli US Ideas to Help Gaza, by Khaled Abu Toameh, in the Jerusalem Post, dated June 26, 2018, as well as, Israel reopens Gaza crossing, but Palestinians turn back some trucks, by Judah Ari Gross, in the Times of Israel, on May 15, 2018.[xxvi] See Hamas could have chosen peace. Instead, it made Gaza suffer, by Dennis Ross, an opinion peace in the Washington Post, on August 8, 2014.[xxvii] See Gaza and Hamas, by Elliot Abrams, on the Council on Foreign Relations website, dated May 16, 2018.

[xxviii] See Hamas co-founder says Gaza-based group ‘stronger than it has ever been’, I24 News, 12/14/17.

[xxix] Article XIV:4 of the Oslo II Agreement.

[xxx] See Hamas Leader Admits Gaza Protests are Not Peaceful, in Israel Today, dated

May 16, 2018; Senior Hamas Official: This Is Not Peaceful Resistance, It Is Supported by Our Weapons, by Andrew Kugle, in The Washington Free Beacon, dated May 15, 2018; and Media Coverage of Israeli-Palestinian Clash is Built on a Myth, by David Harsanyi, in National Review, dated May 18, 2018.

[xxxi] See CAMERA Prompts Los Angeles Times Correction on Fatalities Among Gaza ‘Protestors’, dated June 25, 2018, at camera.org.

[xxxii] See, for example, Hamas’ rules for reporters control news, by Clifford D. May, an analysis/opinion piece in the Washington Times, dated, August 5, 2014; and The Palestinians and the Press Hazards for Reporters Working in the West Bank and Gaza, by Dave Gilson, in Frontline/World, at PBS.org, March 2003

[xxxiii] See Gagged in Gaza, in the Economist, dated September 24, 2016; Press freedom group shocked at Hamas ban on Gaza journalists, by Roy Greenslade, in the Guardian, on January 1, 2013; In Gaza and West Bank, Palestinian journalists fear squeeze on free press, by Nidal al-Mughrabi and Ali Sawafta, in Reuters, on September 19, 2016; In Gaza, authorities crack down on freedom of speech, by Victoria Schneider, in the New Arab, dated November 13, 2017; Violations of Freedom of the Press in Gaza, on the IDF.il website; West Bank and Gaza, on the Freedom House website; and Palestine: Dangerous escalation in attacks on freedom of expression, on the Amnesty International website, dated August 23, 2017;

[xxxiv] This is not the first time something like this occurred. See Gaza Reporter Caught on Tape Confirming Hamas Fired Rockets Near TV Offices, by Yoav Stern, in Haaretz, on January 1, 2009

[xxxv] See Hamas Lies and the media believed it, by Oren Kessler, in US News, dated August 12, 2014.

[xxxvi] See What the Media Gets Wrong About Israel, by Matti Friedman, in Atlantic, dated November 30, 2014.

[xxxvii] See, for example, BBC Bias in Gaza, by Simon Plosker, on the Honest Reporting website, dated July 9, 2014; and Reporting from Jerusalem: The astonishing bias of NBC’s Ayman Mohyeldin, by Richard Grenell, on Fox News, dated October 16, 2015.

[xxxviii] See, for example, BBC finds Andrew Marr guilty of rules breach over a ‘misleading’ claim that Israel killed ‘lots of Palestinian kids’, by Chris Hastings, in the Daily Mail, on June 24, 2018; and Was it okay for U.K. journalist to make emotional, personal video about Gaza children?, in Haaretz, on September 10, 2014.

[xxxix] See, for example, Stop ignoring the facts about Cast Lead, by Jonathan Sacerdoti, in the New Statesman, dated December 30, 2011.

[xl] See Why Everything Reported from Gaza is Crazy Twisted, by Mark Levine, in the Tower Magazine, Issue 17, August 2014; Testimonies from Gaza and Hamas Intimidation of foreign journalists, on the Israel Ministry of Foreign Affairs website, dated August 11, 2014; Foreign press group condemns Hamas intimidation in Gaza, by Stuart Winer, in Times of Israel, dated August 11, 2014; Hamas Admits to Intimidating Foreign Journalists, by Simon Plosker, in Honest Reporting on its website, dated August 17, 2014; BBC interviewee admits intimidation of journalists in Gaza, bbcwatch.org, dated August 16, 2014; Hamas admits intimidating foreign press who reported wrong ‘message’, by TOI Staff, at the Times of Israel, on August 15, 2014; Foreign journalists reveal Hamas’ false front, by Daniel Bettini, in Ynet news.com, dated August 7, 2014; Foreign Press group blasts Hamas’ ‘thuggish behavior’, by TOI Staff, at the Times of Israel, dated May 21, 2016; and Gaza prejudice and perfidy, an opinion piece at the Jerusalem Post, by David Weinberg, dated May 17, 2018.

[xli] See the in-depth analysis of the problem in: The Media Intifada: Bad Math, Ugly Truths About New York Times in Israel-Hamas War, by Richard Behar, in Forbes, dated August 21, 2014

[xlii] See An Insiders Guide to the Most Important Story on Earth, by Matti Friedman, in Tablet, dated August 26, 2014.

[xliii] See ‘Don’t Use Me’: Reporter Admits Seeing Rocket Fired from Gaza Hospital, then Blasts Pro-Israel Media for Quoting Her, by Shoshana Schwartz, in the Blaze, on August 3, 2014; Rare Footage Appears to Capture Gaza Rocket Site, by Nick-Robbins Early, dated August 5, 2014; The story Behind NDTV’s rocket launch footage, by Uriel Hellman, JTA, August 7, 2014; Hamas admits it did use schools and hospitals in Gaza Strip as ‘human shields’ to launch rocket attacks on Israel-but claims it was a ‘mistake’, by Mathew Blake, in the Daily Mail, on September 12. 2014; Gaza rocket launched during CBC interview, CBC News, August 8, 2014; and Why Everything Reported from Gaza is Crazy Twisted, by Mark Levine, in the Tower Magazine, Issue 17, August 2014;

[xliv] See Foreign press group condemns Hamas Intimidation in Gaza, by Stuart Winer, in the Times of Israel, on August 11, 2014;

[xlv] See Palestinians in Gaza are Dying for a Photo Op, by Liel Liebowitz, in Tablet, on May 15, 2018, as well as, Pavlich: Media gives Hamas exactly what they want, in the Hill, dated May 15, 2018.

[xlvi] Nazi Germany and its use of euphemisms like resettlement, special actions, special handling and the final solution to mask the mass murder of 6 million Jews is just one example. Others include Stalin, who, for example, covered up the reality of the pervasive famine that ensued as a result of his so-called “collectivization” program in the Ukraine and other parts of the former Soviet Union, in the years 1932-33. Many millions of people died from hunger as a result of the forced collectivization. (See The Man-Made Famine of 1932-1933 in Soviet Ukraine, by Bohdan Krawchenko in Conflict Quarterly, Spring 1984: Kazakhstan: The Forgotten Famine, by Bruce Pannier, Radio Free Europe, Radio Liberty, dated December 28, 2007; and How Stalin Hid Ukraine’s Famine From the World, by Anne Applebaum, in Atlantic Magazine, dated October 13, 2017.)

The use of the term collectivization is instructive, because it exemplifies how easily a virtuous sounding label can fool people. What could be wrong with working collectively together to accomplish a worthy goal, in furtherance of the common good? Unfortunately, that is not what the term, in fact, described. It was a euphemism for forcibly taking away a peasant’s crops, seeds, farmland, home, livestock, agricultural tools and most other belongings. Even after one intrepid journalist disclosed the enormity of the crime, the accepted wisdom was there was no famine. Rather, the mantra promoted by many of the remaining foreign journalists in Russia, who supported the false utopian vision of communism, was that the Russians were hungry, but not starving. The wordsmiths might just as well have substituted the word ”plenty” for “hunger”. After all, those suffering from malnutrition had plenty of problems.

Another example is Mao’s so-called “Great Leap Forward” program for China, in the years 1958-62. It was nothing of the sort; it was just another exercise in deceit. Overly ambitious goals for food production were established, never met and falsely reported as achieved. Grain needed for subsistence was seized. Instead of feeding the people, it was used to make ethyl alcohol to fuel newly developed missiles and as a cash crop for export to fund the modernization of the military. Mao’s effort at central planning and agricultural development was a not a great success, as he claimed; it was a spectacular failure. This time, many tens of millions of people died from starvation in the ensuing famine. (See China’s Great Famine; the true story, by Tania Branigan, in the Guardian, dated January 1, 2013; After 50 Years of Silence, China Slowly Confronts the ‘Great Leap Forward’, by Helen Gao, in The Atlantic, dated May 29, 2012; Remembering the Biggest Mass Murder in the History of the World, by Ilya Sonim, in the Washington Post, dated August, 3, 2016; and Mao’s Great Leap to Famine, by Frank Dikotter, in the New York Times, dated December 15, 2010.)

These awful, avoidable, man-made tragedies were covered up, at the time. Many willingly or innocently participated in this charade, because they believed they were serving a higher purpose. Some were what the KGB reportedly referred to as UI’s or useful idiots. Others were more sinister and had their own self-styled virtuous motives for perpetuating a fraud on the clueless public. Those desiring to tell the whole truth and nothing but the truth were deemed to be lacking in virtue.

I understand that these failed experiments in scientific socialism and central planning are not generally and intensively studied in school. It’s a pity. There are some valuable lessons to be learnt from how socialism actually functioned in practice. It might temper the enthusiasm of some who suggest embracing this bankrupt economic system, yet again.

[xlvii] See Disinformation Wars, by Chris Meserole and Alina Polyakova, in Foreign Policy, dated May 25, 2018. See also Israel is Losing the Social Media War, by David Patrikarakos, in Tablet, on June 25, 2018.

[xlviii] Images can be manipulated, including being staged, edited, cropped, photoshopped or composited. The lack of context or provenance can also affect how an image is perceived.

[xlix] Babylonian Talmud, Tractates Sotah, at page 49b and Sanhedrin, at page 97a.

[l] The Talmud refers to the period preceding the arrival of the Messiah.

[li] It is noteworthy that the Talmud also describes how the generation will have the face of a dog. Rabbi Aaron Soloveichik, of blessed memory, explained that the face of a generation was its leadership. The reference to a dog is an allusion to how it appears to lead, by walking ahead of its master. However, in reality it is gazing over its shoulder at its master and actually following. In modern parlance, the leaders will not genuinely lead, but rather, in effect, do what polling suggests their constituency desires. The Talmud also describes how there will be a culture of youth where elders defer to minors; those who fear sin will be despised; wisdom will decay; and an atmosphere of disrespect and mistrust, including within the home, will be prevalent. It is hard not to recognize the existence of these conditions in our times.

[lii] See Hamas paid family of 8-month-old to say she died during Gaza border clashes, in JTA, dated June 21, 2018. See also a similar article, by Jacob Magid, in the Times of Israel that same day, as well as, A Dead Baby, by Jerold Auerbach in the Algemeiner, on June 24, 2018.

[liii] See The truth about Hamas and Israel, by IDF Brigadier General Ronin Manelis, in the Wall Street Journal, dated May 20, 2018 (and reproduced at www.idf.il/en/, as well as, Misplaced sympathy for the Hamas lynch mob, by Alan Dershowitz, at foxnews.com.

[liv] Ibid. See also Gaza’s Miseries Have Palestinian Authors, by Bret Stephens, in the New York Times, on May 16, 2018; The Blood Isn’t on Trump’s Hands, by Jonathan S. Tobin, in the National Review on May 15, 2018; and What Sparked the latest Palestinian protests, by Thane Rosenbaum, at cnn.com, on May 16, 2018.

[lv] Ibid. See also Hamas official: 50 of the 62 Gazans killed in border violence were our members, by Judah Ari Gross and TOI staff, in the Times of Israel on May 11, 2018;

[lvi] See the excellent Opinion piece in the New York Times, by Matti Friedman, entitled: Falling for Hamas’ Split Screen fallacy, dated May 16, 2018. See also Journalists Should Stop Falling for Hamas Deadly PR Efforts Against Israel, by David Harsanyi, in the Federalist, dated May 14, 2018 and another of his articles, entitled: Media Coverage of the Israeli-Palestinian Clash Is Built on a Myth, in the National Review, dated May 18, 2018.

[lvii] See one of the latest examples of this egregious practice, The Media Continues to Lie About Israeli Actions in Gaza, as reported by Alan Levick, in the Algemeiner, on July 2, 2018.

[lviii] Babylonian Talmud, Tractate Sanhedrin, at pages 74a and 72b.

[lix] Maimonides, Mishne Torah, Laws of Murder and the Preservation of Life 1:7-14.

[lx] Article 51 of the UN Charter.

[lxi] See video of Nikki Halley speech at UN on the subject, in Real Clear Politics, entitled, Nikki Haley on Gaza: No Country Acts With More “Restraint” Than Israel,

posted by Tim Hains, on May 15, 2018.

[lxii] See, for example, As Gaza hospitals suffer shortages, Hamas refuses Israeli medical aid, by Judah Ari Gross, in the Times of Israel, on May 16, 2018.

[lxiii] See Israeli residents go public with heartfelt aid to Syrians, by Abigail Klein Leichman, on The Israel 21c website, dated July 3, 2018.

[lxiv] See Why They Fight, by Charles Krauthammer, of blessed memory, in the Washington Post, on July 14, 2006.

 

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