This is the fifth installment in a five-part series, “Israel Attacks the International Criminal Court but Its Arguments Fall Flat.” The first installment was: “Pounding the Table, Israeli Officials Malign International Criminal Court.” The second installment was: “The Question of Palestinian Statehood and the ICC’s Jurisdiction” The third installment was: “Does the Israeli Legal System Provide Justice for Palestinians?” The fourth installment was: “The Facts Don’t Fit Israel’s ‘Self-Defense’ Claim.”
Immediately after the International Criminal Court (ICC) prosecutor announced the opening of a preliminary examination of the situation in Palestine, Israeli Prime Minister Benjamin Netanyahu announced a multipronged public campaign attacking the legitimacy of the ICC. The US State Department added its support to Israeli efforts to stop the ICC inquiry. In addition, Netanyahu argued that Palestine is not a state, that the Israeli legal system meets international standards and that the interests of justice require dropping the case because Israel was acting in self-defense against Hamas rockets. Under ICC rules any one of these arguments, if true, could stop the ICC inquiry and prevent Israeli nationals from being investigated and tried at The Hague.
The facts and the law, however, contradict each of Netanyahu’s arguments, such that Israelis – including Israeli political and military leaders who allegedly committed serious crimes in the occupied Palestinian territories – have little reason for confidence. Self-defense against terrorism has served as the centerpiece of Israeli public campaigns to maintain impunity while launching massive assaults on Gaza. As a result, increasing recognition of the facts and law is needed to counter the multipronged public campaign Israeli and US officials are waging to pressure the ICC prosecutor to drop the case so as to maintain impunity for the next assault.
International Court of Justice Opinion on the Wall
Not just facts and admissions stand in the way of Israel’s claim of self-defense. In a July 9, 2004, advisory opinion, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” the International Court of Justice (ICJ) held that self-defense under Article 51 of the UN Charter is inapplicable to the construction of a wall by Israel within territory occupied by Israel. The ICJ recognized Israel’s right and its duty to protect its citizens. The court also acknowledged Israel’s claim that it built the wall to protect its citizens from terrorist attacks. However, the court said, “The measures taken are bound nonetheless to remain in conformity with applicable international law.” The court found the wall, where it crossed into occupied Palestinian territory, to be in violation of international law. Thus, the court denied Israel’s self-defense claim for the wall where it crossed into occupied Palestinian territory.
While an Israeli government report includes mention of a law review article that relies on another ICJ holding favorable to an Israeli position on another issue, the report fails to mention or consider the directly on-point ICJ case as it applies to whether Israel – as the occupying power in Gaza – can claim self-defense when Israeli forces bomb, shoot and bulldoze in residential areas, demolish civilian property, and kill and wound civilians there. Israeli authors of the 277-page Israeli government report simply ducked the question, “If a wall, a relatively passive structure, crossing occupied territory is illegal, how can bombing, shooting and bulldozing in occupied territory be legal?” Instead, the Israeli government report denies that the Gaza Strip remains occupied territory, stating, “Since August 2005, Israel has not exercised effective control of the Gaza Strip.” In a footnote, the report adds:
The conclusion that Israel no longer maintains effective control over the Gaza Strip, and thus cannot be considered as occupying the Gaza Strip, is supported by leading international law scholars … The Israeli High Court of Justice and the Turkel Commission [appointed by the Israeli government]have also concluded that Israel does not exercise effective control and thus does not occupy the Gaza Strip.
The Israeli case for self-defense depends on persuading the ICC that it is not the occupying power in Gaza. But Israel already made that argument before the ICC prosecutor in the Mavi Marmara flotilla case, and its argument did not persuade. In a November 3, 2014, decision regarding the Israeli attack on the Mavi Marmara, the Office of the Prosecutor of the ICC declined to open an investigation. But the decision explained why Israel remains the occupying power:
26. Israel maintains that following the 2005 disengagement, it is no longer an occupying power in Gaza as it does not exercise effective control over the area.
27. However, the prevalent view within the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement. In general, this view is based on the scope and degree of control that Israel has retained over the territory of Gaza following the 2005 disengagement – including, inter alia, Israel’s exercise of control over border crossings, the territorial sea adjacent to the Gaza Strip, and the airspace of Gaza; its periodic military incursions within Gaza; its enforcement of no-go areas within Gaza near the border where Israeli settlements used to be; and its regulation of the local monetary market based on the Israeli currency and control of taxes and customs duties. The retention of such competences by Israel over the territory of Gaza even after the 2005 disengagement overall supports the conclusion that the authority retained by Israel amounts to effective control.
28. Although it no longer maintains a military presence in Gaza, Israel has not only shown the ability to conduct incursions into Gaza at will, but also expressly reserved the right to do so as required by military necessity. This consideration is potentially significant considering that there is support in international case law for the conclusion that it is not a prerequisite that a State maintain continuous presence in a territory in order to qualify as an occupying power. In particular, the ICTY [International Criminal Tribunal for the former Yugoslavia] has held that the law of occupation would also apply to areas where a state possesses “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.” In this respect, it is also noted that the geographic proximity of the Gaza Strip to Israel potentially facilitates the ability of Israel to exercise effective control over the territory, despite the lack of a continuous military presence.
29. Overall, there is a reasonable basis upon which to conclude that Israel continues to be an occupying power in Gaza despite the 2005 disengagement. The Office has therefore proceeded on the basis that the situation in Gaza can be considered within the framework of an international armed conflict in view of the continuing military occupation by Israel.
The Law Doesn’t Fit Israel’s Self-Defense Claim
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, Israel’s claim to self-defense would still be invalidated if its assault extended beyond what was necessary and proportionate to deal with a purported armed attack.
A US-UK Case Established the International Law Regarding Self-Defense
In 1837, members of the British Royal Navy had entered US territory at night to attack the SS Caroline, a steamboat then moored on the New York side of the Niagara River that had been used by Canadian forces rebelling against British rule across the border in Canada. The British force entered US territory, seized the US boat, set it on fire and sent it adrift in the current so it floated over Niagara Falls to its destruction. The British argued that the attack was in self-defense. The Caroline Doctrine, articulated by then-US Secretary of State Daniel Webster in an attachment to a letter he sent to Lord Ashburton in 1841, became established in international law as the necessity and proportionate criteria that must be in place for self-defense against an imminent attack to be legitimate:
… it will be for Her Majesty’s Government to show, upon what state of facts, and what rules of national law, the destruction of the “Caroline” is to be defended. It will be for that Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.
In a footnote, the Israeli government report recognizes “the requirement that responding coercion must be limited in intensity and magnitude to what is reasonably necessary to promptly secure the permissible objectives of defense.”
Necessity Contradicted by Success of Cease-Fires and Failure of Assaults
The necessity requirement for a valid self-defense claim was contradicted by charts from Meir Amit Intelligence and Terrorism Information Center (ITIC), a private Israeli think tank with ties to Israel’s military leadership, showing that Israel had been using another method to defend its citizens, and that method had been wildly successful at stopping and/or preventing rocket fire. By at least partially observing a cease-fire, Israel had halted Hamas rocket fire and kept it from resuming. By contrast, ITIC data shows that large numbers of rockets fell on Israel during each day of each of its major assaults on Gaza. ITIC data also shows that continuing the assaults failed to stop rocket fire. Neither airstrikes nor ground assaults ever stopped rocket fire. Thus, when Israeli forces at least partially observed the cease-fires, the permissible objectives of defense were achieved, and when Israeli forces violated the cease-fires by killing Hamas members in Gaza, Israeli forces provoked rocket fire they could not stop no matter how much “coercion” they applied – until Israeli forces reached an agreement with Hamas that included a new cease-fire. Then, Hamas rocket fire went back to where it had been before the Israeli onslaught: It stopped.
Necessity Contradicted by Hamas Policing Other Groups During the Cease-Fire
The necessity requirement was also contradicted by a May 2013 Jerusalem Post article, “IDF source: Hamas working to stop Gaza rockets,” quoting the Israel Defense Forces general who commands the army’s Gaza Division and who said that Hamas had been policing other groups in Gaza “to thwart rocket attacks from the strip.” The Hamas observance of the cease-fire 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, especially the escalation of attacks during the period between June 13 and the early morning hours of July 7, 2014, put that cease-fire and Hamas policing of other groups at risk. Israel could have more effectively protected its citizens from rocket fire by continuing to maintain the successful cease-fire in place before Israel escalated its assaults on the West Bank and Gaza.
As observing the cease-fire consistently worked to prevent rocket fire, with Hamas holding its own fire and policing other groups to prevent them from firing rockets, and as assaulting Gaza caused a vast dialing up of rocket fire during each of the five previous assaults, Israeli leaders must have known that the summer 2014 assault would provoke a vast amount of rocket fire, would not stop rocket fire once it started, and was not necessary to stop Hamas rocket fire. Predictably, what finally stopped the vast number of Hamas rockets fired at Israel each day was the August 26, 2014, cease-fire.
The facts show that the Israeli assaults on Gaza actually had nothing to do with self-defense against rockets. Rocket fire was provoked by killing Hamas members, and the provoked rocket fire merely provided pretext for further escalation.
Necessity and Proportionality Requirements Contradicted
The necessity and proportionality requirements for a self-defense claim were also contradicted by evidence showing 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 that had nothing to do with stopping rocket fire. Evidence for such war crimes was presented in reports of investigations conducted by the UN Human Rights Council Commission of Inquiry (June 22, 2015); the Al Mezan Center for Human Rights, Lawyers for Palestinian Human Rights and Medical Aid for Palestinians (June 26, 2015); the UN Human Rights Council (December 26, 2014); Defense for Children International Palestine (April 2015); Physicians for Human Rights-Israel (January 20, 2015); Al-Haq (August 19, 2014); the United Nations Office for the Coordination of Humanitarian Affairs (September 4, 2014); Breaking the Silence (May 3, 2015); The Guardian (May 4, 2015); the International Federation for Human Rights (March 27, 2015), Amnesty International, Human Rights Watch and contemporaneous and periodic reports issued by the Palestinian Center for Human Rights.
Testimony by Israeli Soldiers
The Breaking the Silence report includes 111 testimonies by 60 Israeli officers and soldiers who had participated in Operation Protective Edge in Gaza in 2014, including members of ground, naval, air force, headquarters and command center units. Testimony included:
The inclination is to avoid taking risks – rather, to destroy everything we come across. The whole area gets blown up. If you see Juhar al-Dik today, you’ll see nothing but a sand dune.
We figured out pretty quick that every house we leave, a D9 shows up and razes it.
I got the impression that every house we passed on our way got hit by a shell – and houses farther away too. It was methodical. There was no threat…. The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere.
The working assumption states – and I want to stress that this is a quote of sorts: that anyone located in an IDF area, in areas the IDF took over – is not [considered] a civilian. That is the working assumption.
The instructions are to shoot right away. Whoever you spot – be they armed or unarmed, no matter what. The instructions are very clear. Any person you run into, that you see with your eyes – shoot to kill. It’s an explicit instruction.
The extensive use of high explosives in areas densely populated with civilians illustrates one of the potential violations of the rules of war. To its credit, the 277-page Israeli government report admits to “over 6,000 aerial strikes,” but states without support that all these strikes were “against military objectives.”
The Israeli government report also admits that high-explosive artillery and tank shells, including “tank-fired flachette shells,” were used in Gaza. But the Israeli government report is silent on the number of such high-explosive shells fired by Israeli artillery and tanks.
However, the Independent Commission of Inquiry established by the UN Human Rights Council released the report of its investigation on June 22, 2015, and stated that the authoritative Israeli magazine, Bayabasha – what The Jerusalem Post calls the Israeli ground force command’s magazine – said that 14,500 tank shells and approximately 35,000 artillery shells had been fired at Gaza, a total of nearly 50,000 wide-area high-explosive shells.
The Israeli government report further admits that “a small fraction of the total number of cases HE [high-explosive] artillery used during the conflict” was fired into urban areas. In view of the total of nearly 50,000 high-explosive shells fired at Gaza, the statement regarding “a small fraction of the total number” appears to be admission that Israeli forces fired hundreds or thousands of wide-area high-explosive shells into urban areas.
Israeli forces killed 2,310 Palestinians and injured 10,626 during the 51-day assault, according to the Palestinian Ministry of Health.
The Israeli government report also is silent on the use of bulldozers. However, Israeli soldiers who participated in the ground assault on Gaza testified that bulldozers were operated continuously by Israeli ground troops and inflicted massive destruction, particularly in orchards and in residential neighborhoods. In testimony to Breaking the Silence, a first sergeant in an Israeli armored corps states:
Before we entered we saw orchards on a slope, a low fence beyond them and then Juhar al-Dik up on this little hill. You’ve got the barrier [between Israel and the Gaza Strip] and then Juhar al-Dik is on some high ground that overlooks it, and it’s very green. When we left after the operation, it was just a barren stretch of desert. Incredible. Of all the houses that were there, I think I saw maybe four or five still intact, or relatively intact. It was crazy. We spoke about it a lot amongst ourselves, the guys from the company, how crazy the amount of damage we did there was. I quote: “Listen man, it’s crazy what went on in there,” “Listen man, we really messed them up,” “Fuck, check it out, there’s nothing at all left of Juhar al-Dik, it’s nothing but desert now, that’s crazy.” Most of [the destruction was caused by] D9s (armored bulldozers). They just took down all the orchards. Not a single tree left. They worked on it for three weeks … I don’t know what their specific order was, but they were on a deliberate mission to leave the area razed, flattened…. The D9s destroyed lots of houses. The D9 operators didn’t rest for a second. Nonstop, as if they were playing in a sandbox. Driving back and forth, back and forth, razing another house, another street. And at some point there was no trace left of that street. It was hard to imagine there even used to be a street there at all.
Although the Israeli government report is silent on the number of residences Israeli aerial attacks, high-explosive shells and bulldozers destroyed in Gaza, the UN high commissioner for human rights and secretary-general reported that Israeli operations destroyed 18,080 residential housing units. While the Israeli government report describes several cases in which certain residential housing units were allegedly being used for what the Israeli government considered military purposes, nothing in the report provides evidence that 18,080 Palestinian homes were used for such purposes.
For all the above reasons, the law regarding self-defense is inapplicable to support Israel’s self-defense claim. Thus, neither the facts (see the fourth installment of this series) nor the law support Israel’s self-defense claim. And the Israeli prime minister made admissions that contradict the self-defense claim. Thus, Israeli political and military leaders are unlikely to have confidence either that the ICC prosecutor will drop the inquiry because “an investigation would not serve the interest of justice” or that the trial court would exclude Israeli nationals from criminal responsibility for their acts based on Israel’s self-defense claim.
None of Netanyahu’s Arguments Are Likely to Be Persuasive
None of the arguments raised by Prime Minister Netanyahu are likely to be persuasive at the preliminary investigation stage. Israeli political and military leaders, among others, are likely to worry that they will indeed find themselves subjected to investigation and prosecution at The Hague. This conclusion explains the tactic (invoked by Netanyahu and other Israeli officials) of seeking to delegitimize the court when the prosecutor first announced a preliminary examination.
Israel Is Not Acting Alone
Israeli officials are not alone in attacking the decision of the ICC prosecutor to initiate a preliminary examination. Notwithstanding disagreement between certain US and Israeli officials on other matters, the Israeli government continues to enjoy unrestricted US military and political support.
For example, the US State Department added its voice condemning the launching of the ICC preliminary examination (while refraining from condemning the Israeli attack on the integrity of the court). In addition, since 1967, the United States has vetoed dozens of UN Security Council resolutions critical of Israeli actions.
The US also remains the largest supplier of military equipment to the Israeli government. The US restocked Israel’s ammunition supplies during the 51-day summer 2014 assault on Gaza. Along with other Western governments, including the UK, the US continues to provide advanced military equipment to Israel. For example, 14 F-35 jets, the newest US fighter jet bombers, are “expected to arrive in Israel at the end of 2016.“
The UK also provided political support in 2011 when the nation amended its law to restrict prosecution of Israeli officials in UK courts for actions in violation of international law under universal jurisdiction.
Not Just This Case Is at Risk
The harsh disparagement of the International Criminal Court, if successful in this case, would set precedent that puts at risk the enforcement of international criminal law to prevent war crimes, crimes against humanity, genocide and aggression everywhere.
Increasing Recognition That Israel’s Arguments Are Flawed May Counter Pressure on the Court
Along with support from top US and UK officials, highly effective public relations campaigns, based on claimed self-defense that Israeli officials mounted during and after each of the Israeli assaults on Gaza since 2005 and leading up to the 2014 war, allowed Israel to avoid accountability, maintain impunity and launch subsequent military assaults on Gaza. 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.
Increasing recognition that Israel’s arguments are deeply flawed may counter the intense pressure the Israeli public diplomacy campaign and its governmental and media allies are exerting on the ICC so the court may disregard that pressure, conduct an impartial inquiry and base its decisions strictly on the facts and the law.
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