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<span class="post_date" title="2015-07-23">July 23, 2015</span>
<h1 class="headline" itemprop="name"><a
href="http://www.counterpunch.org/2015/07/23/wrong-on-the-facts-wrong-on-the-law-israelis-false-claims-of-self-defense-in-gaza-war/"
rel="bookmark">Wrong on the Facts, Wrong on the Law: Israeli’s
False Claims of “Self-Defense” in Gaza War</a></h1>
<p class="post_meta"> <span class="post_author_intro">by</span> <span
class="post_author" itemprop="author"><a
href="http://www.counterpunch.org/author/james-marc-leas/"
rel="nofollow">James Marc Leas</a></span></p>
<b><small><small><small><a class="moz-txt-link-freetext" href="http://www.counterpunch.org/2015/07/23/wrong-on-the-facts-wrong-on-the-law-israelis-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/</a></small></small></small></b><br>
<div class="post_content" itemprop="articleBody">
<p>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.</p>
<p>Claims of “self-defense” against Hamas rocket fire were invoked
by <a
href="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/">Israeli
Prime Minister Benjamin Netanyahu</a>, <a
href="http://www.huffingtonpost.com/2014/07/15/obama-israel-ceasefire_n_5586229.html">U.S.
President Barack Obama</a>, <a
href="http://www.bbc.com/news/world-middle-east-28669031">U.S.
Secretary of State John Kerry</a>, and <a
href="http://www.dailykos.com/story/2014/07/18/1314873/-Senate-Passes-Resolution-Endorsing-Israeli-War-Crimes-by-Unanimous-Consent">the
United States Senate</a>, 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.</p>
<p>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.</p>
<p>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 <a
href="http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx">announced
that she was launching a “preliminary examination”</a> on
January 16, 2015, Netanyahu launched a multi-pronged “<a
href="http://www.jns.org/latest-articles/2015/1/19/israel-launches-campaign-to-discredit-international-criminal-court-inquiry#.VL7EGUfF-So=">public
diplomacy campaign</a> 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
href="http://freebeacon.com/issues/bibi-israel-will-not-have-its-hands-tied-by-anyone/">a
threat to disregard the decision of the court</a>, a <a
href="http://www.jpost.com/Arab-Israeli-Conflict/Netanyahu-slams-ICC-Steinitz-compares-court-decision-to-Dreyfus-Affair-388108">threat
to the funding of the court</a>, and the announcement that
Israel was <a
href="http://www.jpost.com/Arab-Israeli-Conflict/Netanyahu-slams-ICC-Steinitz-compares-court-decision-to-Dreyfus-Affair-388108">freezing
transfer of more than $100 million a month</a> in taxes Israel
collects for the Palestinian Authority in retaliation for the
State of Palestine joining the ICC and requesting the ICC
inquiry.</p>
<p>A new 63 page report, “<a
href="http://www.nlginternational.org/report/Neither_facts_nor_law_support_Israeli_self-defense_claim_submission_to_ICC.pdf">Neither
facts nor law support Israel’s self-defense claim regarding
its 2014 assault on Gaza</a>,” submitted to the ICC Prosecutor
on behalf of the <a
href="http://nlginternational.org/news/article.php?nid=656">Palestine
Subcommittee of the National Lawyers Guild</a> (“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.</p>
<p><strong>The facts don’t fit Israel’s self-defense claim</strong></p>
<p>Among the material considered in the ICC submission is the <a
href="http://mfa.gov.il/MFA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-Legal-Aspects.aspx">277
page Israeli government report, “The 2014 Gaza Conflict:
Factual and Legal Aspects”</a> 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 <em>before</em>
the night of July 7, 2014, the date a contemporaneous report
from an authoritative Israeli source said “<a
href="http://www.terrorism-info.org.il/Data/articles/Art_20665/E_105_14_1399932700.pdf">For
the first time since Operation Pillar of Defense</a> [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
<em>Washington Post</em> says “<a
href="http://www.washingtonpost.com/wp-dyn/content/article/2006/12/05/AR2006120500446_pf.html">has
close ties with the country’s military leadership</a>.”</p>
<p>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: <a
href="http://www.terrorism-info.org.il/Data/articles/Art_20665/E_105_14_1399932700.pdf">The
contemporaneous ITIC July 2 – July 8, 2014 weekly report</a>
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.</p>
<p>The Israeli government report states:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>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 <em>preceded</em> the Hamas rocket fire
on July 7. The attack on the tunnel that the ITIC reported
killed the six Hamas members.</p>
<p>In a minute by minute timeline of events that day, the Israeli
daily newspaper <em><a
href="http://www.haaretz.com/news/diplomacy-defense/1.603472">Ha’aretz
reported</a></em> 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:</p>
<p>at 2:24 a.m. on July 7:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>at 9:37 p.m. on July 7 <em>Ha’aretz</em> reported:</p>
<blockquote>
<p>Hamas claims responsibility for the rockets fired at Ashdod,
Ofakim, Ashkelon and Netivot. Some 20 rockets exploded in open
areas in the last hour.</p>
</blockquote>
<p>Thus, an authoritative contemporaneous Israeli report
acknowledged the fact that Hamas started firing its rockets some
20 hours <em>after </em>Israeli forces launched the attack on
Gaza and killed the six Hamas members.</p>
<p>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.</p>
<p>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.</p>
<p>According to a report issued by the Palestinian Center for
Human Rights, “<a
href="http://www.pchrgaza.org/files/2014/annual%20English%202013.pdf">PCHR
Annual Report 2013</a>:”</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>An escalation of Israeli violence against Palestinians in early
2014 compared to the rate for the entire year 2013 is evident
from PCHR’s “<a
href="http://www.pchrgaza.org/files/2014/Quarter%20-english-2014.pdf">Report
on the Human Rights Situation in the Occupied Palestinian
Territories, 1st Quarter of 2014</a>.”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.”</p>
<p>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 <em>before</em> three Israeli teenagers were
kidnapped and killed on the West Bank on June 12, 2014:</p>
<blockquote>
<p>* <a
href="http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=10331:weekly-report-on-israeli-human-rights-viol">Israeli
forces shot 9 teenagers</a> demonstrating on the West Bank
on May 15, killing two.</p>
<p>* <a
href="http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=10395:weekly-report-on-israeli-human-rights-viol">Israeli
forces wounded nine Palestinian civilians</a>, including a
child during the week of June 5 to June 11.</p>
<p>* <a
href="http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=10395:weekly-report-on-israeli-human-rights-viol">Israeli
forces launched an extrajudicial execution</a> on June 11 in
Gaza that killed one and wounded three.</p>
</blockquote>
<p>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 <a
href="http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=category&id=84&Itemid=219">the
contemporaneous weekly reports</a> issued by the Palestinian
Center for Human Rights.</p>
<p>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 <a
href="http://www.ynetnews.com/articles/0,7340,L-4530549,00.html">Israeli
daily newspaper <em>Yediot Aharonot</em></a>, on June 15,
2014: to capture Hamas members (<a
href="http://www.dailymail.co.uk/news/article-2661116/Israeli-police-arrest-51-Palestinian-prisoners-released-2011-furious-search-thr">some
of whom the Israeli government had previously released in a
prisoner exchange</a> 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.</p>
<p>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 <a
href="http://www.jpost.com/Diplomacy-and-Politics/Netanyahu-If-quiet-not-restored-to-South-troops-amassed-near-Gaza-will-act-with-pow">at
the US Ambassador’s residence in Tel Aviv on July 4</a>,
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.</p>
<p><strong>Media collaboration</strong></p>
<p>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 <em><a
href="http://www.nytimes.com/interactive/2014/07/15/world/middleeast/toll-israel-gaza-conflict.html">New
York Times, published an incorrect timeline</a></em>. 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 <em>after</em> Israeli forces had escalated
their aerial attack on Gaza killing the six Hamas members. The <em>Times</em>
timeline simply omits mention of the lethal Israeli attacks on
the night of July 6 and early morning hours on July 7 that <em>Ha’aretz</em>
said preceded the Hamas barrage of rockets on the night of July
7. The <em>New York Times</em> 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 <em>New
York Times</em> 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.”<strong> </strong></p>
<p><strong>The law doesn’t fit Israel’s self-defense claim</strong></p>
<p>Not just facts and admissions stand in the way of Israel’s
self-defense claim. In a <a
href="http://www.icj-cij.org/docket/files/131/1671.pdf">2004
decision rejecting Israel’s self-defense claim for the wall</a>,
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.</p>
<p>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.</p>
<p>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.</p>
<p>Necessity was also contradicted by an article in the May 2013 <em>Jerusalem
Pos</em>t, “<a
href="http://www.jpost.com/Middle-East/IDF-source-Hamas-working-to-stop-rockets-from-Gaza-311977">IDF
source: Hamas working to stop Gaza rockets</a>,” 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.</p>
<p>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 <a
href="http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIGaza/A-HRC-29-52_en.doc">UN
Human Rights Council Commission of Inquiry</a> (June 22,
2015); the <a
href="http://lphr.org.uk/wp-content/uploads/2015/06/No-More-Impunity-Gazas-Health-Sector-Under-Attack.pdf">Al
Mezan Center for Human Rights, Lawyers for Palestinian for
Human Rights (LPHR), and Medical Aid for Palestinians (MAP)</a>
(June 26, 2015); the <a
href="http://www.ohchr.org/Documents/Countries/PS/A.HRC.28.80.Add.1.doc">UN
Human Rights Council</a> (December 26, 2014); <a
href="http://issuu.com/dcips/docs/ope.awarwagedonchildren.160415/1?e=0">Defense
for Children International Palestine</a> (April 2015); <a
href="http://reliefweb.int/sites/reliefweb.int/files/resources/gazareport_eng.pdf">Physicians
for Human Rights-Israel</a> (PHR-Israel) (January 20, 2015); <a
href="http://www.alhaq.org/advocacy/topics/gaza/844-briefing-note-vi-unlawful-attacks-against-paramedics-and-ambulances-and-delays-in-the-delivery-of-aid">Al-Haq</a>
(August 19, 2014); the <a
href="http://www.ochaopt.org/documents/ocha_opt_sitrep_04_09_2014.pdf">United
Nations Office for the Coordination of Humanitarian Affairs</a>
(OCHA) (September 4, 2014); <a
href="http://www.breakingthesilence.org.il/pdf/ProtectiveEdge.pdf">Breaking
the Silence</a> (May 3, 2015); <em><a
href="http://www.theguardian.com/world/video/2015/may/04/israel-breaking-the-silence-gaza-soldiers-testimony-video">The
Guardian</a></em> (May 4, 2015); <a
href="https://www.fidh.org/IMG/pdf/report_gaza_fidh_march_2015.pdf">The
International Federation for Human Rights</a> (FIDH) (March
27, 2015), and contemporaneous and periodic reports issued by
the <a
href="http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=category&id=84&Itemid=219&limitstart=30">Palestinian
Center for Human Rights</a>.</p>
<p>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.</p>
</div>
<div>
<p class="author_description"> <em><strong>James Marc Leas</strong>
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 <a
href="http://www.counterpunch.org/2012/12/27/why-the-self-defense-doctrine-doesnt-legitimize-israels-assault-on-gaza/">Why
the Self-Defense Doctrine Doesn’t Legitimize Israel’s
Assault on Gaza</a>. He also participated in the February
2009 National Lawyers Guild delegation to Gaza immediately
after Operation Cast Lead and contributed to its report, “<a
href="http://www.nlginternational.org/report/NLG_Final_Report.pdf">Onslaught:
Israel’s Attack on Gaza and the Rule of Law</a>.”</em> </p>
</div>
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