[R-G] Israel's Unjust War on Gaza: Self-Defense Against Peace

[Anthony Fenton]

February 5, 2009
Israel's Unjust War on Gaza: Self-Defense Against Peace
http://counterpunch.org/mandel02052009.html
By MICHAEL MANDEL

Did self-defence justify Israel’s war on Gaza?

Objections have been raised to this claim on grounds of a lack of both  
proportionality and necessity. To kill over 1000 Palestinians in 3  
weeks, hundreds of them children, and wound thousands more, in order  
to deter a threat from rockets that did not kill or injure anybody in  
Israel for the six months the truce was declared by both sides, or  
even before Israel launched its attack on December 27, is so  
disproportionate as to be intolerable in any ethical system that holds  
Palestinian lives equal in value to Israeli lives. It is also so  
disproportionate as to defy belief that defence against these rockets  
was the real motive of the war. To ignore the many diplomatic avenues  
available to avoid even this threat, such as lifting the suffocating  
18-month siege, suggests the same thing.

A more fundamental objection, however, is the self-evident legal and  
moral principle that an aggressor cannot rely upon self-defence to  
justify violence against resistance to its own aggression. You can  
find this principle in domestic law and in the judgments of the  
Nuremberg tribunals.

To quote one Nuremberg judge:

     On of the most amazing phenomena of this case which does not lack  
in startling features is the manner in which the aggressive war  
conducted by Germany against Russia has been treated by the defense as  
if it were the other way around. …If it is assumed that some of the  
resistance units in Russia or members of the population did commit  
acts which were in themselves unlawful under the rules of war, it  
would still have to be shown that these acts were not in legitimate  
defense against wrongs perpetrated upon them by the invader. Under  
International Law, as in Domestic Law, there can be no reprisal  
against reprisal. The assassin who is being repulsed by his intended  
victim may not slay him and then, in turn, plead self defense. (Trial  
of Otto Ohlendorf and others, Military Tribunal II-A, April 8, 1948)

So who was the aggressor here?

There would have been no question as to who was the aggressor had this  
attack taken place before Israel’s withdrawal from the Gaza strip in  
2005. At that point Israel had been committing a continuous aggression  
against Gaza for 38 years, in its illegal and violent occupation of  
it, along with the rest of the Palestinian territory, including East  
Jerusalem, after its conquest in 1967.

By 2005, the occupation had been condemned as illegal by the highest  
organs with jurisdiction over international law, most notably the  
International Court of Justice in its 2004 opinion on the separation  
barrier. A central illegality of the occupation for the International  
Court lay in Israel’s settlements, which violate the law against  
colonization, and which are central to the occupation. The fifteen  
judges of the International Court were unanimously of the opinion that  
the settlements were illegal and the wall itself was held by a  
majority of 13-2 to be illegal, partly because it was there to defend  
the settlements, and not Israel itself, and thus could not qualify as  
self-defence.

The rocket attacks from Gaza started in 2001 and took their first  
Israeli victim in 2004. Since then, there had been 14 Israeli victims  
prior to the current war. Tragic, indeed, but obviously paling in  
comparison to the 1700 Palestinians killed in Gaza during the same  
period. One death is indeed a tragedy, but many deaths are not just “a  
statistic”, as Stalin had it; they are the tragedy multiplied many  
times over. Given Israel’s illegal, aggressive and violent occupation,  
prior to the withdrawal, Gaza rockets could only be regarded as  
necessary and proportionate self-defence, or as reprisals against  
Israel’s aggression.

Did Israel’s withdrawal from Gaza in 2005 change the situation?

It has been forcefully argued that the 18-month siege of Gaza, a major  
reason for Hamas’ refusal to extend the truce, was itself an act of  
aggression, giving rise to a right of self-defence.

But even more important, though usually ignored, is Israel’s continued  
illegal and aggressive occupation of the West Bank and East Jerusalem  
after the withdrawal from Gaza in 2005. Indeed, the withdrawal from  
Gaza was intended to strengthen the hold on the other territories and  
was accompanied by a greater increase in the number of settlers there  
than those removed from Gaza.

The occupation of the West Bank and East Jerusalem figured equally  
with Gaza in the condemnations of the World Court and the Security  
Council. Furthermore, in the Oslo Accords, Israel and the Palestinians  
agreed that “The two sides view the West Bank and the Gaza Strip as a  
single territorial unit, the integrity and status of which will be  
preserved during the interim period.” Indeed, when Hamas won the  
elections in 2006, elections declared impeccably fair and civil by all  
international observers, it won them for the whole of the Palestinian  
Authority, including the West Bank (it was not allowed by Israel to  
campaign in East Jerusalem). Many Hamas West Bank legislators remain  
in Israeli jails.

And the basic fact is that the Palestinians of the West Bank and Gaza  
are one people, however separated they are by walls and fences and  
check-points. Israel’s unilateral withdrawal from one part of that  
people’s land cannot turn that people into aggressors when they resist  
the illegal occupation of the rest.

So self-defense cannot justify this attack, or the siege that preceded  
it. What can? That Hamas is a “terrorist organization”? But terrorism  
is about deliberately killing civilians for illegal political ends,  
and in that enterprise, Israel has topped Hamas by many multiples.  
That Hamas does not recognize Israel’s “right to exist”? But Hamas has  
offered many times to make a long-term truce with Israel on the basis  
of the legal international borders, something it is clearly entitled  
to insist upon. Israel says that’s not good enough, that Hamas first  
has to recognize Israel’s legitimacy, in other words, it has to  
concede the legitimacy of the Jewish state and all it has meant to the  
Palestinians. In other words, as one Israeli journalist ironized,  
Israel is insisting that Hamas embrace Zionism as a condition of even  
talking peace with it.

These are not justifications for violence on this or any scale.  
Indeed, they point to the most plausible reason Israel is fighting  
Hamas (and the PLO before it): self-defence, if you will, not against  
rockets and mortars, but against having to make peace with the  
Palestinians on the basis of the pre-1967 borders as required by  
international law.

Michael Mandel is Professor of Law at Osgoode Hall Law School of York  
University in Toronto, where he teaches the Law of War. He is the  
author of How America Gets Away with Murder.