The Facts Don’t Fit Israel’s “Self-Defense” Claim

This is the fourth installment in the 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?”

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. This five-part series presents the facts and the law contradicting each of Netanyahu’s arguments. It shows that Israelis, including Israeli political and military leaders, who allegedly committed serious crimes in occupied Palestinian territories, have little reason for confidence. Particularly regarding self-defense against terrorism, the centerpiece of Israel’s public campaigns to maintain impunity so it could launch massive assaults on Gaza again and again – six times since 2006 – this article concludes that increasing recognition of the facts and law is needed to counter the Israeli and US campaign being waged to pressure the ICC prosecutor to drop the case so as to maintain impunity for the next assault.

Israeli Prime Minister Benjamin Netanyahu argues that Israel defends itself against Palestinian terrorists so the interests of security preclude ICC prosecution of Israelis. This article will show that the facts stand in the way of Netanyahu’s self-defense claim.

As reported by The Jerusalem Post, Netanyahu said in a statement on January 17, 2015:

The [ICC] decision [to initiate the preliminary examination] is “even more preposterous,” he said, “given that Israel is legitimately defending itself against Palestinian terrorists who routinely commit multiple war crimes. They deliberately fire thousands of rockets at our civilians, while hiding behind Palestinian civilians whom they use as human shields.”

Netanyahu said it is “tragic” that the “lofty goals of the ICC are being turned upside-down.”

He said the court, “founded to prevent a repeat of history’s worst crimes, foremost among them the genocide of six million Jews,” was now being cynically manipulated by the Palestinians “to deny the Jewish state the right to defend itself against the very war crimes and the very terrorism that the court was established to prevent.”

The next day, in a statement to an emergency meeting of Israeli security, legal and diplomatic officials, Netanyahu said that the ICC’s decision to open the preliminary examination is “the height of hypocrisy and the opposite of justice … It gives legitimacy to international terrorism.”

Defending the State of Israel and its citizens against terrorism had also been the justification given for the Israeli assault on West Bank villages from June 13 to June 30, 2014, code-named “Operation Brother’s Keeper.” Defending the State of Israel and its citizens, particularly from Hamas rocket fire, was the justification given for the assault on Gaza that began the next week, code-named “Operation Protective Edge,” and lasted from July 7 to August 26, 2014.

Regarding the decision by the ICC prosecutor to open the preliminary examination, as reported on the Israeli government’s own website, Netanyahu further said in the statement to the emergency meeting:

We will fight it every way possible and we will also recruit others to fight this absurdity, and they are already being recruited. We will not allow IDF [Israel Defense Forces] soldiers to face international tribunals. I would also like to say that these steps will not deter us from doing what is necessary to defend the State of Israel and its citizens.

Israeli officials were not alone in touting self-defense. During Israel’s July through August 2014 assault on Gaza, US and UK political leaders, including US President Barack Obama, US Secretary of State John Kerry, the US Senate and UK Prime Minister David Cameron added their voices to that of Israeli Prime Minister Benjamin Netanyahu by declaring that Israel was implementing its right to defend itself against Hamas rocket fire.

The oft-repeated “Israel has a right to protect its citizens” from Hamas rockets has been fundamental to Israeli, US and UK campaigns to retain public support for Israel during each of Israel’s six major assaults on Gaza since Israel withdrew its settlers in 2005: “Operation Summer Rain“: June-July 2006; “Operation Autumn Clouds“: November 2006; “Operation Hot Winter“: January-March 2008; “Operation Cast Lead“: December 2008-January 2009; “Operation Pillar of Defense“: November 2012; and “Operation Protective Edge“: July-August 2014.

Netanyahu’s Claim That Israel Was Legitimately Defending Itself Is Flawed

Using authoritative Israeli and Palestinian reports published during the summer 2014 assault, and using more recently released reports and documents – including admissions in a 277-page Israeli government report issued on the one-year anniversary of that assault – this installment will show that it was Israeli forces that initiated the combat. In addition, admissions by top Israeli officials during the assault contradicted their widely touted self-defense claims. Then, after presenting the international law regarding self-defense, the next installment in this series will show that even if the facts were otherwise, Israel lacks any valid legal basis for its self-defense claim. A more detailed presentation of the facts and law may be found in a 63-page report, “Neither facts nor law support Israel’s self-defense claim regarding its 2014 assault on Gaza,” submitted to the ICC prosecutor by the present author on behalf of the Palestine Subcommittee of the National Lawyers Guild.

The Facts Don’t Fit: Israeli Government Report Makes Admissions That Defeat Self-Defense Claim

The 277-page Israeli government report, “The 2014 Gaza Conflict: Factual and Legal Aspects,” was released by the Israeli government on June 14, 2015, almost exactly one year after Israeli forces initiated their summer 2014 military operations. Although this report asserts that Israeli forces were acting in self-defense, to its credit, the 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.

Authoritative Israeli Source Dates First Hamas Rocket Fire

However, the Israeli government report fails to 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 [November 21, 2012], Hamas participated in and claimed responsibility for rocket fire” (emphasis in the original). The contemporaneous report was included in the July 2-8, 2014, issue of “News of Terrorism and the Israeli-Palestinian Conflict,” a weekly online report issued by the Meir Amit Intelligence and Terrorism Information Center (ITIC), a private Israeli think tank that The Associated Press says “has close ties with the country’s military leadership.” In its weekly report, the ITIC routinely describes and tabulates rocket fire from Gaza, and the Israeli government uses ITIC charts on its own website.

Attack on Tunnel Killed Six Hamas Members

While the Israeli government report admits that Israeli forces struck a tunnel in Gaza, the report omits mention that the attack killed six Hamas members who were in the tunnel. The Israeli government report fails to inform its readers that this killing is what provoked Hamas to launch its first rockets since November 2012, as described in a contemporaneous timeline in the Israeli newspaper Haaretz.

Timeline in Israeli Daily Newspaper Haaretz Is Consistent With ITIC Report

In a minute-by-minute timeline of events that day, Haaretz reported that the Israeli military attacks actually escalated during the night of July 6 and continued into the early morning hours of July 7. While the full timeline of events can be seen at Haaretz, the following three items in the Haaretz timeline show the time early in the morning of July 7, when both Hamas and the IDF announced the Israeli attack, and the time, 20 hours later, on the night of July 7 that Hamas launched its first rockets at Israel since 2012:

2:24 a.m.

Hamas reports an additional four militants died in a second Israeli air strike in Gaza, bringing Sunday night’s [July 6] death total to six. This is the biggest single Israeli hit against Hamas since 2012’s Operation Pillar of Defense.

2:35 a.m.

IDF spokesperson confirms IAF [Israeli Air Force] struck nine targets, including “concealed rocket launchers and other centers of terrorist activity in the Gaza Strip.”

9:37 p.m. [first report of Hamas claiming responsibility for rocket fire: 20 hours after Israeli forces kill six Hamas members]

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, authoritative, contemporaneous Israeli sources reported on the Israeli attacks and the first report of rocket fire participated in and claimed by Hamas. The ITIC reported the first Hamas rocket fire since November 21, 2012, on July 7, 2014, and the Haaretz timeline shows that Hamas participated in and claimed responsibility for firing its rockets on the night of July 7 – some 20 hours after Israeli forces had launched the attacks on nine targets in Gaza, including the aerial attack on the tunnel that killed the six Hamas members.

No Choice?

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 the Israeli government report had just admitted to an Israeli attack on a tunnel that authoritative contemporaneous Israeli sources show preceded the first confirmed Hamas rocket fire since November 2012. The Israeli government only provided part of the facts in its 277-page report. By omitting mention of the fact, reported by the ITIC and Haaretz, that the Israeli attack on the tunnel killed six Hamas members, and preceded and provoked the first Hamas rocket fire since November 2012, the Israeli government strained its own credibility.

Actually, Israeli Officials Had a Choice

The Israeli government report portrays the launching of more than 60 rockets at Israel on the night of July 7 as giving the government of Israel no choice but to escalate aerial operations. But this argument collapses because the report fails to mention that Israel actually had a choice as to whether or not to launch its nine attacks on Gaza – including the lethal attack on the tunnel – on the night of July 6 and the early morning hours of July 7 – 20 hours before Hamas ended its side of the November 2012 cease-fire by shooting barrages of rockets at Israel on the night of July 7.

That’s Chutzpah: Attack First, Kill First and Claim Self-Defense

Although, to its credit, the Israeli government report acknowledges that Israeli forces had been regularly attacking Palestinian targets in 2013 and 2014; had launched a massive military operation in the West Bank from June 13 to June 30, 2014; and had launched an aerial strike on a tunnel in Gaza on July 5, it omitted the facts that all these attacks preceded the first Hamas rocket fire in nearly 20 months; that the attack on the tunnel killed six Hamas members; and that by launching combat operations and killing Hamas members, it was Israel that violated the cease-fire in place since November 21, 2012, and ended that cease-fire. If anyone had a case for self-defense, it was not the Israeli forces.

Past experience demonstrated: (a) killing Hamas members provoked rocket fire; and (b) Israeli officials could successfully use that rocket fire as a pretext for escalation.

A repeating pattern is indicated. In the article “Israeli Strike Is First in Gaza Since Start of Cease-Fire,” The New York Times reported on ground and aerial attacks on Gaza on November 4, 2008, that killed five Hamas members and that ended a cease-fire that had successfully stopped Hamas rocket fire since June 19, 2008. The success of that cease-fire was indicated by the applause it received on the Israeli government’s own website.

On November 20, 2008, two weeks after its lethal cease-fire violation, then-Defense Minister of Israel Ehud Barak told a reporter for Israel’s Ynet News that “the recent waves of rocket attacks are a result of our operations, which have resulted in the killing of 20 Hamas gunmen.”

With that, Barak admitted that the rocket fire was provoked by the Israeli military operations; that Israeli forces had a different military objective in mind than stopping rocket fire when they attacked; and that he was willing to risk rocket fire and end the successful cease-fire to achieve the goal of killing Hamas members.

Those Israeli military operations continued during the seven-week lead up to Operation Cast Lead, the massive escalation of fighting that began on December 27, 2008. Weekly reports issued by the Palestinian Center for Human Rights describe nine incursions by Israeli soldiers into Gaza during the weeks from November 4 to December 26, 2008. As rocket fire had been effectively stopped by the cease-fire in place since June 19, 2008, the purpose of the operations Barak directed starting on November 4, 2008, could not have been to stop rocket fire, and, to his credit, he enlisted no such pretext. Whether intentional or not, the weekly Israeli military operations each provoked rocket fire, and the rocket fire was effectively used by Israeli government public relations as a pretext for escalation on December 27, 2008.

In letters to the UN on the day after Israeli forces massively escalated their air attack on December 27, 2008, the Israeli ambassador to the UN blamed “ongoing rocket attacks for many days” for this escalation (but the letters omitted mention of Defense Minister Barak’s November 20 admission that the rocket fire had been “the result of our operations”), and said “that after a long period of utmost restraint, the Government of Israel has decided to exercise, as of this morning, its right to self-defense.” Thus, the letters claimed self-defense even though the Israeli defense minister had previously admitted the opposite.

The rocket fire stopped on January 18, 2009, when Israeli government officials and Hamas agreed to a new cease-fire.

Based on this experience, Israeli officials knew (or should have known) that Hamas rocket fire would be the likely result of military operations in Gaza that killed Hamas members. Israeli officials also knew (or should have known) that in their public relations, they could use the resulting Hamas rocket fire as a supposed reason for further escalation, while maintaining their claim of self-defense against rockets.

Israeli Government Report Omits Mention of Effect of Its Admitted Strikes in 2013, 2014

While the Israeli government report admits that Israeli forces struck Gaza during 2013 and 2014 – long before the ITIC says Hamas launched its first rockets since the cease-fire agreement that ended Operation Pillar of Defense in November 2012 – the Israeli government report omits mention of the number of Palestinian civilians and members of armed groups killed by these Israeli attacks during 2013, and the increased rate of killing by Israeli forces during the first three months of 2014.

According to a report issued by the Palestinian Center for Human Rights, “PCHR Annual Report 2013:”

The number of Palestinians who were killed by Israeli forces [during 2013] 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 of 2013, is evident from PCHR’s “Report on the Human Rights Situation in the Occupied Palestinian Territories, 1st Quarter of 2014“:

Among the violations presented in the report is the killing of 20 Palestinians 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.

The Israeli government report also fails to mention that these lethal attacks on Palestinians were in violation of the cease-fire agreement it had signed on November 21, 2012.

Israeli Government Report Omits Mention of Israeli Military Strikes in the Weeks Before the Kidnapping of Three Israeli Teenagers

Other than the attack on the tunnel (mistakenly dated July 5 in the Israeli government report instead of late during the night of July 6 or the early morning of July 7), the Israeli government report does not mention any of the Israeli government attacks on the West Bank and Gaza in the days and weeks before three Israeli teenagers were kidnapped and killed in the West Bank on June 12, 2014:

• Israeli forces shot and killed two Palestinian teenagers demonstrating outside Ofer prison, west of Ramallah on the West Bank, on May 15, 2014, as reported by the Palestinian Center for Human Rights (PCHR) in its contemporaneous weekly report. Israeli forces also shot and wounded eight other civilians, included a third Palestinian teen who sustained a serious bullet wound to the back.

• The next day, Israeli forces wounded four civilians at the same location, including a teenager who was demonstrating and a photojournalist, as reported by PCHR.

• Israeli forces opened fire and wounded four Palestinian civilians, including a teenager and a member of an armed group in the Gaza Strip, during the week of May 22 to May 28, 2014, as reported by PCHR. Israeli forces also wounded three protesters in the West Bank during that week. Israeli forces also conducted 65 incursions into Palestinian communities in the West Bank, and a limited one in the southern Gaza Strip during that week. Israeli settlers in the West Bank set fire to Palestinian crops and uprooted olive and almond trees during that week. Israeli forces also fired at Palestinian fishermen three miles off the coast of Gaza on May 24.

• Israeli forces killed a Palestinian civilian at a checkpoint south of Nablus during the week of May 29 to June 4, 2014, as reported by PCHR. Israeli forces wounded two Palestinian civilians, including a child in Jerusalem during that week. Settlers attacked two Palestinian children, ages 7 and 9, on their way to school in Hebron in the West Bank during that week. Israeli forces also conducted 80 incursions into Palestinian communities in the West Bank and two limited incursions in the southern Gaza Strip during that week.

• In an extrajudicial execution on June 11 – the day before the kidnapping of the three Israeli settler teenagers – an Israeli drone launched two missiles, killing a police officer who was also a member of Hamas in the Gaza Strip, as reported by PCHR. The Israeli missiles also wounded three Palestinian civilians, including a 10-year-old child who suffered shrapnel throughout his body and a brain hemorrhage. Israeli forces wounded nine Palestinians – including a teenager – in the West Bank during the week of June 5 to June 11, eight of whom were participating in peaceful demonstrations, and the ninth during an incursion into a Palestinian refugee camp. Israeli forces conducted 76 incursions into Palestinian communities in the West Bank during that week.

All this occurred before the kidnapping of the three Israeli teenagers on June 12, 2014, and weeks before authoritative Israeli sources say Hamas launched its first rockets since November 2012.

Israeli Government Report Omits Mention of Casualties From Israeli Assault on West Bank

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 Brother’s Keeper – supposedly in a search for the three Israeli teenagers who were kidnapped on June 12. Israeli forces killed 11 Palestinians and wounded 51, according to the contemporaneous weekly reports issued by the Palestinian Center for Human Rights.

All this occurred before Hamas launched its first rockets since November 21, 2012.

Israeli Government Report Omits Mention of Admissions by Netanyahu

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, as described in a contemporaneous report in the Israeli daily newspaper Yediot Aharonot on June 15, 2014. Just as then-Defense Minister Ehud Barak had done six years earlier, Prime Minister Netanyahu openly admitted to military and political objectives that had nothing to do with stopping rockets: (a) to capture Hamas members (some of whom the Israeli government had previously released in a prisoner exchange and some of whom were parliamentarians in the new Palestinian unity government); (b) create “severe repercussions”; and (c) punish the Palestinian Authority and Hamas for forming a unity government.

Israeli Government Report Does Not Mention a Point Omitted by Netanyahu

Importantly, although he accused “Hamas people” of carrying out the kidnapping of the three Israeli teenagers, Netanyahu made no mention of rocket fire in his remarks on June 15, 2014. The non-mention of rocket fire by Netanyahu is consistent with the ITIC report of no rocket fire at that time.

Israeli Government Report Omits Mention of a Further Admission by Netanyahu

Similarly, after describing the Israeli operations that caused Hamas to pay a “heavy price” in the West Bank, as shown in a video of his speech at the US ambassador’s residence in Tel Aviv on July 3, Netanyahu acknowledged that (d) “in Gaza we hit dozens of Hamas activists and destroyed outposts and facilities that served Hamas terrorists.”

Thus, Netanyahu himself admitted major Israeli military operations on both the West Bank and Gaza occurred days before the launching of the first Hamas rockets since November 2012, on the night of July 7.

Thus, the facts and the admissions by the Israeli prime minister contradict the Israeli government’s self-defense claim.

News Media Facilitates Israeli Government’s Self-Defense Claim

Facilitating the Israeli and US 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. The New York Times timeline 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 of July 7 that the ITIC and Haaretz 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 extrajudicial 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.”

Coming Next: While the present installment shows that the facts were inconsistent with Prime Minister Netanyahu’s claim that the ICC should not be inquiring into the situation in Palestine because “Israel is legitimately defending itself against Palestinian terrorists,” the next installment of this series will show that even if the facts were different, the law regarding self-defense would preclude the prime minister’s claim.