Israel’s Self-Defene Claim Does Not Withstand Scrutiny

By James Marc Leas

On December 27, 2008 Israel launched “Operation Cast Lead,” its massive attack on Gaza. The date has a huge bearing on Israel’s claim of self-defense and whether the war was actually about ending Hamas rocket fire, as Israel claims. Israel had first attacked Gaza 53 days earlier, on November 4. That day, when the entire world’s attention was riveted on the election of Barack Obama in the US, Israel’s ground troops invaded Gaza and its planes bombed, killing six Hamas members. Because of the election, Israel hoped its attack would be little noticed by the world media.

A November 4 New York Times article, “Israeli Strike is First in Gaza Since Start of Cease Fire,” by Isabel Kershner, noted that the attack came four and one half months after Israel had successfully stopped Hamas rocket fire via an Egyptian-brokered ceasefire.

The website of the Israeli Ministry of Foreign Affairs notes that the June 19 ceasefire brought “calm” and that “signs of normal life can be seen in towns on both sides of the Israel-Gaza Strip border.” The ceasefire was so successful that the Israeli government lauded Hamas: “Publicly, Hamas leaders have stated time and again that the lull is a Palestinian national interest. On several occasions, Hamas members have arrested Fatah operatives who were involved in firing at Israel and confiscated their arms.”

All that changed with Israel’s November 4 attack. On November 20, Ynet News, published by Israel’s largest circulation daily, quoted Defense Minister Ehud Barak saying, “the recent waves of rocket attacks are a result of our operations, which have resulted in the killing of 20 Hamas gunmen.”

According to the Palestine Center for Human Rights, Israel sent troops into Gaza nine times in the 53 days before its massive December 27 escalation; Hamas responded with rockets. Even so, Israel had the chance to restore the successful ceasefire, but it rejected that Hamas offer.

The fact that Israel had initiated the fighting in violation of a ceasefire agreement and the fact that it rejected a peaceful resolution did not stop Israel’s UN ambassador from declaring in a December 27 letter to UN Secretary General Ban Ki Moon that Israel was acting in self-defense against rocket fire.

One of the central features of this war was Israel’s public relations success at persuading mainstream media and world public opinion that “the operation was meant to stop years of rocket attacks from Gaza,” as reported without challenge in The Washington Post on December 27, 2009, the anniversary of Operation Cast Lead. Such mainstream media failed to recognize that Israel first attacked when Hamas rocket fire was zero and Hamas was successfully policing other groups.

While the UN’s Goldstone Report received much notice for its conclusion that Israeli military and political leaders committed war crimes and, possibly, crimes against humanity, it also alluded to a purpose for the war other than defending against rocket fire. The report concluded:

While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self-defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.(Goldstone Report, paragraph 1883)

A report by a National Lawyers Guild delegation to Gaza also found that Israel had intentionally targeted civilians and civilian infrastructure.

Within the UN General Assembly, Israel’s self-defense claim did not prevail: 114 nations voted to endorse the Goldstone Report, while only 18 nations — including the US — voted against.

In December 2009 the evidence of criminal acts by Israeli government officials was sufficient to persuade a judge in the UK to issue an arrest warrant for former Israeli Foreign Minister Tzipi Livni. Livni could be seen to have admitted during the height of the war on January 12, 2009, that Israel’s targeting of civilians was a deliberate policy: Livni said, “[Israel] is a country that when you fire on its citizens it responds by going wild — and this is a good thing.”

Central to the law of self-defense is the prohibition against targeting civilians and civilian infrastructure. Because Israeli forces violated that prohibition and because Israel was the party that broke the ceasefire, its self-defense claim would likely be held ineffective in a court of law.

But Israel has one more defense. Let’s call it the US-defense: The US government blocks UN Security Council action to uphold international law and applies pressure on its allies to let Israeli transgressions slide. And the US supplies Israel with bombs and money to conduct such wars. Israeli impunity depends as much on the US-defense as on its flawed self-defense claim.

Public action, including protests, boycotts, and divestment campaigns are all the more necessary to end the ongoing siege of Gaza and to counter the real threat of renewed attack by Israel.

Just as important, as provided in article 146 of the Fourth Geneva Convention, courts in countries outside the US and Israel are required to make themselves available to prosecute those responsible for grave breaches of the convention, including the war crimes and (possibly) crimes against humanity described in the Goldstone Report. Consideration should also be given to prosecuting Israeli officials for starting a war of aggression when, on November 4, 2008, Israeli forces broke the cease fire that had already successfully put a halt to Hamas rocket fire.

James Marc Leas is a Jewish-American lawyer in S. Burlington, VT.  He participated in an NLG delegation to Gaza from 2/1 to 2/8, 2009.  The delegation’s report is at www.nlg.org/NLGGazaDelegationReport.pdf.