[News] Wrong on the Facts, Wrong on the Law: Israeli’s False Claims of “Self-Defense” in Gaza War

Anti-Imperialist News news at freedomarchives.org
Thu Jul 23 10:38:19 EDT 2015


July 23, 2015


  Wrong on the Facts, Wrong on the Law: Israeli’s False Claims of
  “Self-Defense” in Gaza War
  <http://www.counterpunch.org/2015/07/23/wrong-on-the-facts-wrong-on-the-law-israelis-false-claims-of-self-defense-in-gaza-war/>

by James Marc Leas <http://www.counterpunch.org/author/james-marc-leas/>

*http://www.counterpunch.org/2015/07/23/wrong-on-the-facts-wrong-on-the-law-israelis-false-claims-of-self-defense-in-gaza-war/*

Although the facts, the law, and admissions by Israeli government 
officials all pointed otherwise, during the July-August 2014 Israeli 
assault on Gaza, the Israeli government was successful in promoting its 
self-defense claim with western news media and in persuading certain 
U.S. politicians that Israel was implementing its right to defend itself.

Claims of “self-defense” against Hamas rocket fire were invoked by 
Israeli Prime Minister Benjamin Netanyahu 
<http://washington.cbslocal.com/2014/07/22/netanyahu-some-in-west-say-they-support-israels-right-to-defend-itself-as-long-as-we-dont-exercise-that-right/>, 
U.S. President Barack Obama 
<http://www.huffingtonpost.com/2014/07/15/obama-israel-ceasefire_n_5586229.html>, 
U.S. Secretary of State John Kerry 
<http://www.bbc.com/news/world-middle-east-28669031>, and the United 
States Senate 
<http://www.dailykos.com/story/2014/07/18/1314873/-Senate-Passes-Resolution-Endorsing-Israeli-War-Crimes-by-Unanimous-Consent>, 
and not only as justification for the Israeli assault. “Self-defense” 
against the rockets also served to deflect allegations that Israeli 
forces committed war crimes by targeting civilians and civilian property 
in Gaza.

Public relations campaigns based on self-defense have been critical to 
Israeli officials avoiding accountability after each of the six major 
assaults on Gaza since Israel withdrew its settlers from Gaza in 2005. 
Notwithstanding the reports of war crimes committed by Israeli forces, 
the remarkable success of those self-defense based public relations 
campaigns continued to provide Israeli officials with impunity: the 
freedom to strike militarily again.

That impunity may come to an end if the Prosecutor of the International 
Criminal Court (ICC) decides to open an investigation into the situation 
in Palestine and prosecutions follow. However, immediately after the 
Prosecutor announced that she was launching a “preliminary examination” 
<http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx> 
on January 16, 2015, Netanyahu launched a multi-pronged “public 
diplomacy campaign 
<http://www.jns.org/latest-articles/2015/1/19/israel-launches-campaign-to-discredit-international-criminal-court-inquiry#.VL7EGUfF-So=> 
to discredit the legitimacy of the International Criminal Court’s (ICC) 
recent decision to start an inquiry into what the Palestinians call 
Israeli ‘war crimes’ in the disputed territories.” The public diplomacy 
campaign is based entirely on Israel’s claim that it acted in 
self-defense. The Israeli campaign also included a threat to disregard 
the decision of the court 
<http://freebeacon.com/issues/bibi-israel-will-not-have-its-hands-tied-by-anyone/>, 
a threat to the funding of the court 
<http://www.jpost.com/Arab-Israeli-Conflict/Netanyahu-slams-ICC-Steinitz-compares-court-decision-to-Dreyfus-Affair-388108>, 
and the announcement that Israel was freezing transfer of more than $100 
million a month 
<http://www.jpost.com/Arab-Israeli-Conflict/Netanyahu-slams-ICC-Steinitz-compares-court-decision-to-Dreyfus-Affair-388108> 
in taxes Israel collects for the Palestinian Authority in retaliation 
for the State of Palestine joining the ICC and requesting the ICC inquiry.

A new 63 page report, “Neither facts nor law support Israel’s 
self-defense claim regarding its 2014 assault on Gaza 
<http://www.nlginternational.org/report/Neither_facts_nor_law_support_Israeli_self-defense_claim_submission_to_ICC.pdf>,” 
submitted to the ICC Prosecutor on behalf of the Palestine Subcommittee 
of the National Lawyers Guild 
<http://nlginternational.org/news/article.php?nid=656> (“the ICC 
submission”), uses both authoritative contemporaneous Israeli and 
Palestinian reports and newly released reports and documents to 
demonstrate that Israeli claims of “self-defense” for its 2014 attack on 
Gaza are unsupported in both fact and law. The ICC submission notes that 
the unusual strategy implemented by Israeli officials to publically 
discredit the court inquiry demonstrated a distinct departure from the 
traditional method of respectfully presenting evidence and persuasive 
arguments to the court.

*The facts don’t fit Israel’s self-defense claim*

Among the material considered in the ICC submission is the 277 page 
Israeli government report, “The 2014 Gaza Conflict: Factual and Legal 
Aspects” 
<http://mfa.gov.il/MFA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-Legal-Aspects.aspx> 
that was released by the Israeli government on June 14, 2015. Although 
the Israeli government report builds its case around self-defense, to 
its credit, the Israeli government report openly acknowledges that 
Israeli military forces (a) had been striking Gaza during 2013 and early 
2014, (b) had launched a massive attack on the West Bank in mid-June 
2014, and (c) had launched an aerial strike on a tunnel in Gaza on July 
5, 2014. However, the Israeli government report omits mention that all 
these dates were /before/ the night of July 7, 2014, the date a 
contemporaneous report from an authoritative Israeli source said “For 
the first time since Operation Pillar of Defense 
<http://www.terrorism-info.org.il/Data/articles/Art_20665/E_105_14_1399932700.pdf> 
[November 21, 2012], Hamas participated in and claimed responsibility 
for rocket fire” (emphasis in the original). The contemporaneous report 
was issued by the Meir Amit Intelligence and Terrorism Information 
Center (ITIC), a private Israeli think tank that the /Washington Post/ 
says “has close ties with the country’s military leadership 
<http://www.washingtonpost.com/wp-dyn/content/article/2006/12/05/AR2006120500446_pf.html>.”

While the Israeli government report acknowledged the aerial strike on 
the tunnel in Gaza, it omitted mention of the extent of Israeli attacks 
on Gaza during the night before Hamas participated and claimed 
responsibility for its first rocket fire since 2012: The contemporaneous 
ITIC July 2 – July 8, 2014 weekly report 
<http://www.terrorism-info.org.il/Data/articles/Art_20665/E_105_14_1399932700.pdf> 
states that on July 7 “approximately 50 terrorist targets in the Gaza 
Strip were struck,” by Israeli forces, including strikes that killed six 
Hamas members in the tunnel.

The Israeli government report states:

    On July 7, 2014, after more than 60 rockets and mortars were fired
    into Israel from the Gaza Strip on a single day, the Government of
    Israel was left with no choice but to initiate a concerted aerial
    operation against Hamas and other terrorist organisations in order
    adequately to defend Israel’s civilian population.

Thus, the Israeli government report claims that the government was 
acting to defend Israel’s civilian population notwithstanding the fact 
that it had just admitted to an Israeli government attack that 
/preceded/ the Hamas rocket fire on July 7. The attack on the tunnel 
that the ITIC reported killed the six Hamas members.

In a minute by minute timeline of events that day, the Israeli daily 
newspaper /Ha’aretz reported 
<http://www.haaretz.com/news/diplomacy-defense/1.603472>/ the Israeli 
attacks that began during the night of July 6 and continued in the early 
morning hours of July 7 that showed that the Israeli attack on the 
tunnel preceded the Hamas rockets:

at 2:24 a.m. on July 7:

    Hamas reports an additional four militants died in a second Israeli
    air strike in Gaza, bringing Sunday night’s death total to six. This
    is the biggest single Israeli hit against Hamas since 2012’s
    Operation Pillar of Defense.

at 9:37 p.m. on July 7 /Ha’aretz/ reported:

    Hamas claims responsibility for the rockets fired at Ashdod, Ofakim,
    Ashkelon and Netivot. Some 20 rockets exploded in open areas in the
    last hour.

Thus, an authoritative contemporaneous Israeli report acknowledged the 
fact that Hamas started firing its rockets some 20 hours /after /Israeli 
forces launched the attack on Gaza and killed the six Hamas members.

The Israeli government report couches the more than 60 rockets launched 
at Israel on the night of July 7 as giving the government of Israel no 
choice but to escalate aerial operations. But the report fails to 
mention that Israel actually had a choice as to whether or not to launch 
its prior lethal attack on the night of July 6 and the early morning 
hours of July 7. By omitting mention of the timing and the lethal 
effects of its attack on the tunnel, the Israeli government report 
avoids recognizing that its killing of the six Hamas members provoked 
the Hamas rocket fire.

While the Israeli government report mentions strikes on Gaza during 2013 
and 2014, it omits mention of the number of Palestinians killed by 
Israeli attacks during 2013 and the increased rate of such killing 
during the first three months of 2014.

According to a report issued by the Palestinian Center for Human Rights, 
“PCHR Annual Report 2013 
<http://www.pchrgaza.org/files/2014/annual%20English%202013.pdf>:”

    The number of Palestinians who were killed by Israeli forces was 46
    victims in circumstances where no threats were posed to the lives of
    Israeli soldiers. Five of these victims died of wounds they had
    sustained in previous years. Of the total number of victims, there
    were 41 civilians, 33 of whom were in the West Bank and eight in the
    Gaza Strip, including six children, two women; and five
    non-civilians, including one in the West Bank and the other four in
    the Gaza Strip. In 2013, 496 Palestinians sustained various wounds,
    430 of them in the West Bank and 66 in the Gaza Strip, including 142
    children and 10 women.

An escalation of Israeli violence against Palestinians in early 2014 
compared to the rate for the entire year 2013 is evident from PCHR’s 
“Report on the Human Rights Situation in the Occupied Palestinian 
Territories, 1st Quarter of 2014 
<http://www.pchrgaza.org/files/2014/Quarter%20-english-2014.pdf>.”Among 
the violations presented in the report, 20 Palestinians were killed by 
Israeli forces during the first three months of 2014, including 11 
civilians of whom two were children; 259 were wounded, of whom 255 were 
civilians, including 53 children. “The majority of these Palestinians, 
198, were wounded during peaceful protests and clashes with Israeli forces.”

Nor does the Israeli government report mention any of the lethal Israeli 
government attacks on the West Bank and Gaza in the days and weeks 
/before/ three Israeli teenagers were kidnapped and killed on the West 
Bank on June 12, 2014:

    * Israeli forces shot 9 teenagers
    <http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=10331:weekly-report-on-israeli-human-rights-viol>
    demonstrating on the West Bank on May 15, killing two.

    * Israeli forces wounded nine Palestinian civilians
    <http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=10395:weekly-report-on-israeli-human-rights-viol>,
    including a child during the week of June 5 to June 11.

    * Israeli forces launched an extrajudicial execution
    <http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=10395:weekly-report-on-israeli-human-rights-viol>
    on June 11 in Gaza that killed one and wounded three.

Nor does the Israeli government report describe the extent of casualties 
inflicted by the June 13 to June 30 military offensive on the West Bank, 
Operation Brothers Keeper, in which Israeli forces killed 11 
Palestinians and wounded 51, according to the contemporaneous weekly 
reports 
<http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=category&id=84&Itemid=219> 
issued by the Palestinian Center for Human Rights.

In addition, the Israeli government’s 277 page report omits mention of 
admissions by Prime Minister Netanyahu of other military and political 
purposes for its assault on the West Bank, described in a 
contemporaneous report in the Israeli daily newspaper /Yediot Aharonot/ 
<http://www.ynetnews.com/articles/0,7340,L-4530549,00.html>, on June 15, 
2014: to capture Hamas members (some of whom the Israeli government had 
previously released in a prisoner exchange 
<http://www.dailymail.co.uk/news/article-2661116/Israeli-police-arrest-51-Palestinian-prisoners-released-2011-furious-search-thr> 
and some of whom were Parliamentarians in the new Palestinian unity 
government), create “severe repercussions,” and punish the Palestinian 
Authority and Hamas for forming a unity government. Importantly, 
although he accused “Hamas people” of carrying out the kidnapping of the 
three Israeli teenagers, Netanyahu made no mention of stopping rocket 
fire. The non-mention of rocket fire by Netanyahu is consistent with the 
ITIC report of no rocket fire at that time.

Similarly, after describing the Israeli operations that caused Hamas to 
pay a “heavy price” on the West Bank, as shown in a video of his speech 
at the US Ambassador’s residence in Tel Aviv on July 4 
<http://www.jpost.com/Diplomacy-and-Politics/Netanyahu-If-quiet-not-restored-to-South-troops-amassed-near-Gaza-will-act-with-pow>, 
Netanyahu acknowledged that “in Gaza we hit dozens of Hamas activists 
and destroyed outposts and facilities that served Hamas terrorists.” 
Thus Netanyahu himself acknowledged major Israeli military operations in 
Gaza preceding the launching of Hamas rockets on July 7.

*Media collaboration*

Facilitating the Israeli and U.S. government campaign to pin 
responsibility on Hamas and support an Israeli self-defense claim, 
certain western news media, including the /New York Times, published an 
incorrect timeline 
<http://www.nytimes.com/interactive/2014/07/15/world/middleeast/toll-israel-gaza-conflict.html>/. 
The timeline published by the New York Times dated the start of the war 
to July 8, the first full day of Hamas rocket barrages, and more than a 
day /after/ Israeli forces had escalated their aerial attack on Gaza 
killing the six Hamas members. The /Times/ timeline simply omits mention 
of the lethal Israeli attacks on the night of July 6 and early morning 
hours on July 7 that /Ha’aretz/ said preceded the Hamas barrage of 
rockets on the night of July 7. The /New York Times/ timeline also omits 
mention of the 24 days of “Operation Bring Back Our Brothers,” that 
began on June 13, the June 11 extra-judicial execution of a Hamas member 
in Gaza, the June 13 attack on the “terrorist facility and a weapons 
storehouse in the southern Gaza Strip,” and the killing of the two 
Palestinian teenagers and wounding of seven other Palestinians who were 
demonstrating on May 15. The /New York Times/ timeline also omits 
mention of the lethal Israeli attacks in 2013 and the escalation of 
those attacks in early 2014 that the Israeli government report admitted 
under the euphemism “targeted efforts to prevent future attacks.”**

*The law doesn’t fit Israel’s self-defense claim*

Not just facts and admissions stand in the way of Israel’s self-defense 
claim. In a 2004 decision rejecting Israel’s self-defense claim for the 
wall <http://www.icj-cij.org/docket/files/131/1671.pdf>, a relatively 
passive structure crossing occupied Palestinian territory, the 
International Court of Justice (ICJ) held that, under the UN Charter, 
self-defense under Article 51 of the UN Charter is inapplicable to 
measures taken by an occupying power within occupied territory. While 
the ICJ recognized Israel’s right and its duty to protect its citizens, 
it said “The measures taken are bound nonetheless to remain in 
conformity with applicable international law.” While the Israeli 
government report includes mention of a law review article that relies 
on an ICJ holding favorable to an Israeli position on another issue, the 
Israeli government report omits mention of the directly on point ICJ 
case regarding applicability of self-defense to Israel as occupying 
power in Gaza.

But even if Israel could overcome the facts showing that Israeli forces 
initiated the combat, and even if Israel was not the occupying power in 
Gaza and did not have to address the law regarding self-defense for an 
occupying power presented in the ICJ decision, Israel’s claim to 
self-defense would still be invalidated if its assault extended beyond 
what was necessary and proportionate to deal with an armed attack it was 
purportedly facing, as more fully described in the ICC submission.

Necessity was contradicted by the data provided by the ITIC showing that 
Israel had been wildly successful at stopping and/or preventing rocket 
fire by agreeing to and at least partially observing a ceasefire, while 
Israel consistently dialed up rocket fire with each of its major 
assaults on Gaza since 2006. By contrast, as shown in the ICC 
submission, hundreds of times more rockets were falling on Israel during 
each day of each of the major assaults on Gaza than were falling in the 
periods before Israeli forces attacked or after the assault ended with a 
new ceasefire.

Necessity was also contradicted by an article in the May 2013 /Jerusalem 
Pos/t, “IDF source: Hamas working to stop Gaza rockets 
<http://www.jpost.com/Middle-East/IDF-source-Hamas-working-to-stop-rockets-from-Gaza-311977>,” 
quoting the IDF General who commands the army’s Gaza Division who said 
that Hamas had been policing other groups in Gaza “to thwart rocket 
attacks from the strip.” The Hamas observance of the ceasefire and its 
policing of other groups to prevent rocket fire demonstrated an 
effective alternative to an Israeli assault. The Israeli attacks on the 
West Bank and Gaza during the period between June 13 and the early 
morning hours of July 7, 2014 put that ceasefire and that Hamas policing 
of other groups at risk. Israel could have more effectively protected 
its citizens from rocket fire by continuing to at least partially 
observe the successful cease-fire in place before Israel escalated its 
assaults on the West Bank and Gaza. So the necessity for the escalation 
on June 13 and the further escalation on July 7 to protect Israeli 
citizens from rocket fire has not been shown.

The necessity and proportionality requirements for a self-defense claim 
were also contradicted by evidence that actions by Israeli forces during 
the assault on Gaza went outside the laws of war by directly targeting 
Palestinian civilians and Palestinian civilian property. The 
proportionality requirement was further contradicted by evidence of 
widespread Israeli attacks that harmed civilians or civilian property 
disproportionate to the military advantage Israeli forces received from 
the attacks. The evidence for such war crimes cited in the ICC 
submission comes from reports of investigations conducted by the UN 
Human Rights Council Commission of Inquiry 
<http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIGaza/A-HRC-29-52_en.doc> 
(June 22, 2015); the Al Mezan Center for Human Rights, Lawyers for 
Palestinian for Human Rights (LPHR), and Medical Aid for Palestinians 
(MAP) 
<http://lphr.org.uk/wp-content/uploads/2015/06/No-More-Impunity-Gazas-Health-Sector-Under-Attack.pdf> 
(June 26, 2015); the UN Human Rights Council 
<http://www.ohchr.org/Documents/Countries/PS/A.HRC.28.80.Add.1.doc> 
(December 26, 2014); Defense for Children International Palestine 
<http://issuu.com/dcips/docs/ope.awarwagedonchildren.160415/1?e=0> 
(April 2015); Physicians for Human Rights-Israel 
<http://reliefweb.int/sites/reliefweb.int/files/resources/gazareport_eng.pdf> 
(PHR-Israel) (January 20, 2015); Al-Haq 
<http://www.alhaq.org/advocacy/topics/gaza/844-briefing-note-vi-unlawful-attacks-against-paramedics-and-ambulances-and-delays-in-the-delivery-of-aid> 
(August 19, 2014); the United Nations Office for the Coordination of 
Humanitarian Affairs 
<http://www.ochaopt.org/documents/ocha_opt_sitrep_04_09_2014.pdf> (OCHA) 
(September 4, 2014); Breaking the Silence 
<http://www.breakingthesilence.org.il/pdf/ProtectiveEdge.pdf> (May 3, 
2015); /The Guardian 
<http://www.theguardian.com/world/video/2015/may/04/israel-breaking-the-silence-gaza-soldiers-testimony-video>/ 
(May 4, 2015); The International Federation for Human Rights 
<https://www.fidh.org/IMG/pdf/report_gaza_fidh_march_2015.pdf> (FIDH) 
(March 27, 2015), and contemporaneous and periodic reports issued by the 
Palestinian Center for Human Rights 
<http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=category&id=84&Itemid=219&limitstart=30>.

Along with support from top U.S. officials, the enormously successful 
public relations campaigns based on claimed self-defense that Israeli 
officials mounted during and after each of the Israeli assaults on Gaza 
allowed Israel to avoid accountability, maintain impunity, and launch 
subsequent attacks. In view of that successful record, the effectiveness 
of Israel’s “public diplomacy campaign to discredit the ICC inquiry” 
based on the same self-defense claims should not be underestimated. 
Widespread recognition that Israel’s self-defense claim is deeply flawed 
is needed to counter the intense pressure Israeli officials and their 
allies are exerting on the ICC so the court may resist that pressure and 
base its decisions strictly on the facts and law.

/*James Marc Leas* is a patent attorney and a past co-chair of the 
National Lawyers Guild Palestine Subcommittee. He collected evidence in 
Gaza immediately after Operation Pillar of Defense in November 2012 as 
part of a 20 member delegation from the U.S. and Europe and authored or 
co-authored four articles for Counterpunch describing findings, 
including Why the Self-Defense Doctrine Doesn’t Legitimize Israel’s 
Assault on Gaza 
<http://www.counterpunch.org/2012/12/27/why-the-self-defense-doctrine-doesnt-legitimize-israels-assault-on-gaza/>. 
He also participated in the February 2009 National Lawyers Guild 
delegation to Gaza immediately after Operation Cast Lead and contributed 
to its report, “Onslaught: Israel’s Attack on Gaza and the Rule of Law 
<http://www.nlginternational.org/report/NLG_Final_Report.pdf>.”/

-- 
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