Maurice Hirsch’s article (May 29th) “The Myth of the Gaza massacre” was penned as a response to my article of May 16th. Amidst the many personal attacks against me, including the absurd and frankly offensive accusation that my views advocate “allowing crazed terrorists to murder Israelis”, he does raise a number of substantive points which I would like to address here.

Hirsch rightly argues the events in Gaza should be placed in a broader context and he provides various quotes from Palestinian leaders which seem to suggest that the Gaza protest was intended to be violent from the outset. If one is to accept Hirsch’s reasoning that pronouncements made by Hamas prior to the protests illustrate murderous intent, then presumably the same logic should apply to statements made by Israel.

With this in mind, it’s worth examining the words of Israel’s Defence Minister, Avigdor Lieberman, who stated on 30th March that “Anyone who comes close to the fence will endanger his life”. There is no suggestion in here that Palestinians would need to pose any threat or even carry a weapon for their lives to be in danger.

It is crucial to bear in mind that while Hamas is undoubtedly a brutal authoritarian and theocratic organisation which has committed unspeakable terrorist acts against Israeli civilians, it is also a multi-faceted entity comprising of non-military wings including a vast bureaucracy. As the single ruling party in Gaza since 2006, it’s inevitable that many Gazans will interact with it in one way or another, and this does not render them all terrorists deserving of execution.

Lieberman himself acknowledged this reality when he claimed on April 8th that, “There are no innocents in Gaza, everyone has a connection to Hamas, everyone has a salary from Hamas”. Yet instead of distinguishing between Hamas terrorists and women and children, Liebermann appears to argue that all 2 million residents of Gaza should be considered legitimate targets for the 100 snipers that were assembled on the border.

Hirsch cites the Meir Amit intelligence and terrorism information centre report which identifies 93 of the 112 (83%) Palestinians killed in Gaza as terrorist operatives or affiliated with terrorist organisations. However, the breakdown between ‘operatives’ and those merely affiliated with terrorist organisations paints a somewhat different picture, in which just 34% of the Palestinians killed were operatives.

Hirsch also refers to the widely quoted television interview in which Hamas spokesperson Salah Al Bardawil claimed that 50 of the 58 Palestinian’s killed in Gaza on May 14th were Hamas members. Here too, he fails to abide by his own imperative to present events in context.

According to Amira Hass – one of the few Israeli journalists to have actually lived in the Palestinian territories – Al Bardawil’s numbers should be treated with a fair degree of scepticism since he is likely to have exaggerated Hamas’ involvement in order to improve its standing amidst pressure from political rivals, Fatah. In any case, Bardawil does not actually differentiate between Hamas members who might (as mentioned above) include activists, rank-and-file or loosely affiliated civilians, and actual Hamas operatives engaging in terrorist acts. Hass claims that according to official Hamas figures, only about 17% of all those killed since March 30th were members of Hamas’ military wing and there is insufficient evidence to suggest they posed any direct threat to Israeli life at the time of their death (which is not to rule out the possibility that they did).

The other obvious point here is that IDF snipers would not have been able to identify whether targets were Hamas members at the time they pulled the trigger, and so retrospectively justifying their deaths through affiliation with Hamas tells us nothing about whether they ought to have been shot in the first place.

Hirsch also claims that occupation requires “boots on the ground” and since Israel formally withdrew from Gaza in 2005, Gaza cannot be occupied. The is not the view of the international community which continues to affirm Israel’s status as an occupying power in the Gaza Strip

Despite the withdrawal, Israel (along with Egypt) retains control over Gaza’s borders, its airspace, as well as travel to and from Gaza by sea. Gazan’s are prevented from accessing up to one-third of arable land due to Israeli buffer zones on the border there remain major fishing restrictions in Gaza’s waters. These are just a couple of examples of the myriad ways in which Israel continues to exert control over the lives of virtually all Gazans. As a consequence, and despite the “lack of boots on the ground”, The International Criminal Court, the International Committee of the Red Cross the UN General Assembly and the UN Security Council all regard Gaza as occupied.

Hirsch also asks for the basis of my “learned opinion” that Israel breached international law in its use of live fire. My position is based on that of many legal experts, both in Israel and abroad, who characterise the Gaza protest as a civilian protest in which the laws of enforcement apply. These include Michael Sfard, the prominent Israeli Human rights lawyer, Amnesty International, B’tzelem, and the UN Commissioner for Human Rights, who have all stated that the protests in Gaza should be subject to law enforcement rules rather than the rules of armed conflict.

Under these rules, legal force may only be used in cases when strictly necessary to protect against an imminent threat to life. Israel rejected this view by declaring its intention to use live fire before the protests even began on the basis that Hamas would use them as an opportunity to breach the border fence and launch attacks against Israelis. But as Sari Bashi of Human Rights Watch points out, this effectively empties the term ‘imminent’ of any meaning.

Bashi explains: “It ignores the nonlethal means, such as tear gas, skunk water, and rubber-coated steel pellets, that Israel can and should exhaust to protect its border. Even if those methods were to fail (and they haven’t been exhausted), Israel would be justified in using lethal force only if a border breach presents an imminent threat to life. Israeli troops and snipers currently fire from well-fortified positions inside Israel, behind two fences, and, in key locations, behind ditches dug to prevent border crossings. They receive footage from drones hovering over Gaza and have back-up from additional personnel and equipment located farther inside Israel. Since the protests began, Israel has reported only a single injury among its troops”.

In any event, given his “experience and expertise in international law” and his confidence in Israel’s’ Supreme Court’s decision, I would imagine Hirsch would welcome an International investigation to establish the full facts of what went on.