[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>.”/
--
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415
863.9977 www.freedomarchives.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://freedomarchives.org/pipermail/news_freedomarchives.org/attachments/20150723/819e3545/attachment.htm>
More information about the News
mailing list