Fighting Anti-Israeli Bias

Countering
Item 7

THE UNHRC'S STANDING AGENDA ITEM
TARGETING ISRAEL

Claims

Claim 31: Israel was the aggressor in Gaza in May 2021

examples

Cuba, 48th Session

“Cuba reiterates its strong condemnation of the Israeli aggressions against the Palestinian civilian population in Gaza and the West Bank, which have caused the loss of hundreds of lives and considerable material damage.”

Sudan, 48th Session

“We also recall the horrific effects of the Israeli aggression, which killed about 250 Palestinian citizens, including more than 60 children, and displaced more than 75,000 civilians.”

Syria, 47th Session

“We thank the Special Rapporteur for his report, which reviewed the continuing Israeli crimes and human rights violations and the occupied Palestinian territory, the most recent of which was the brutal aggression against the Gaza Strip.”

Turkey, 47th Session

“Israel’s latest acts of aggression and provocation are part and parcel of a systematic campaign of ethnic, religious, and cultural cleansing in the occupied Palestinian territories.”

Indonesia, 48th Session

“The absence of independent and impartial accountability for grave human rights violations, war crimes and crimes against humanity has emboldened Israel to continue with its military operations and aggression towards defenseless civilians…”

Venezuela, 30th Special Session

“We condemn the latest military aggression by Israel in the OPT.”

Our Response

UN Watch

There is no basis for the assertion that Israel was the aggressor in Gaza. Israel’s actions in Gaza constituted a lawful military response to unprovoked Hamas rocket fire directed at Israeli civilians. While a number of NGOs and UN officials, including High Commissioner for Human Rights Michelle Bachelet[1] and Special Rapporteur on Palestine Michael Lynk[2] have suggested that Israeli actions in Jerusalem were to blame for the recent escalation, including its police response to violent riots in and around the East Jerusalem neighborhood of Sheikh Jarrah and on the Temple Mount during Ramadan, these events did not provide Hamas with any legal authority to launch rocket attacks at Israel.[3]

A basic rule of International Humanitarian Law (IHL) is that use of force is limited to situations of military necessity.[4] Here, Hamas attacked Israel without being threatened or attacked first by Israel. In fact, Israel took a number of steps to de-escalate the tensions in Jerusalem prior to the Hamas rocket attacks, including (1) requesting the Israeli Supreme Court to delay its hearing in the civil Sheikh Jarrah property dispute case; (2) removing police barricades outside the Damascus Gate which had been intended to prevent violence; (3) prohibiting Jews from entering the Temple Mount; and (4) re-routing and then canceling the annual Jerusalem-Day flag march.

Moreover, blaming Israel ignores the wider political context, including the internal power struggle between Hamas and Fatah, and Hamas’s desire to gain legitimacy among Palestinians after Abbas—now in the 15th year of his four-year term—had just cancelled the first round of Palestinian national elections since 2006.[5]

In contrast to Hamas, Israel’s use of force was militarily necessary. During the eleven-day conflict, Hamas indiscriminately fired over 4,000 rockets at Israeli civilians, killing 13, injuring 300, terrorizing millions and causing millions of dollars in damage. Israel has a right of self-defense under both the UN Charter and customary international law.[6] Article 51 of the UN Charter provides that member states are entitled to exercise their “inherent right of…self-defense” in response to an “armed attack.” This includes attacks by non-state actors like Hamas.[7] Therefore, as the party attacked, Israel had the right to respond, i.e., to do what was necessary to restore its safety, including using force “reasonably necessary to discourage future armed attacks.”[8]

The use of force must be both necessary and proportionate. As military law expert Prof. Laurie Blank has explained, in assessing proportionality there is no “symmetry” requirement, “the force used may indeed be significantly greater than that used in the attack that triggered the right to self-defense—what matters is the result sought not the equivalence between attack and response.[9] Thus, in order to deter Hamas’s rocket-launching capabilities, Israel may take out a range of targets, including rocket launchers, weapons production facilities, means of transport, command and control centers, etc.

Furthermore, while Hamas indiscriminately targeted Israeli civilians, Israel restricted its strikes to lawful Hamas military targets, which it struck with “near-surgical precision in order to avoid civilian casualties.”[10] While many of the strikes resulted in no casualties due to Israel’s abundant precautions,[11] regrettably, some civilians were killed. However, this does not turn Israel, which was acting lawfully in self-defense, into the aggressor.

[1] To avoid next round of violence, root causes must be addressed – Bachelet escalation in Gaza and the occupied Palestinian territory, OHCHR (May 27, 2021), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=27116&LangID=E.

[2] Gaza-Israel: UN experts welcome ceasefire, call for ICC probe, OHCHR (May 21, 2021),  https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=27108&LangID=E.

[3] The current situation in Israel and International Humanitarian Law, thinc (May 19, 2021), https://www.thinc.info/the-current-situation-in-israel-and-international-humanitarian-law-2/.

[4] Samuel Estreicher and Julian Ku, Hamas, Not Israel, Violated International Humanitarian Law, Justia (June 14, 2021), https://verdict.justia.com/2021/06/14/hamas-not-israel-violated-international-humanitarian-law.

[5] Ghaith al-Omari, Palestinian Politics are More Divided Than Ever, Washington Institute (May 27, 2021), https://www.washingtoninstitute.org/pdf/view/16789/en.

[6] Amb. Alan Baker, The Legal War: Hamas’ War Crimes and Israel’s Right to Self-Defense, JCPA (June 3, 2021), https://jcpa.org/article/the-legal-war-hamas-war-crimes-and-israels-right-to-self-defense/.

[7] Samuel Estreicher and Julian Ku, Hamas, Not Israel, Violated International Humanitarian Law, Justia (June 14, 2021), https://verdict.justia.com/2021/06/14/hamas-not-israel-violated-international-humanitarian-law.

[8]Law of War Manual, US Department of Defense (2015), P. 41 (discussing jus ad bellum proportionality), https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190; See also Laurie R. Blank, The Extent of Self-Defense Against Terrorist Groups: For How Long and How Far? 47 Israel Yearbook on Human Rights 265-316, at 275 (2017), Available at SSRN: https://ssrn.com/abstract=2929076 (use of force must be “necessary and proportionate to the goal of repelling the attack or ending the grievance.”).

[9] Id. at 279.

[10] Alan Baker, UNHRC: Epitome of hostility and double standard, Jerusalem Post (June 9, 2021), https://www.jpost.com/opinion/unhrc-epitome-of-hostility-and-double-standard-opinion-670554; see also UN agency withdraws director from Gaza after threats, AP (June 4, 2021), https://apnews.com/article/united-nations-middle-east-b03eb29c5b9286fff1d6b80cf6539294 (comments by then-UNRWA Gaza chief Mathias Schmale about precision of Israeli missile strikes).

[11] Anna Aronheim, Operation Guardian of the Walls: Targeting Hamas terror, behind the scenes, Jerusalem Post (June 3, 2021), https://www.jpost.com/arab-israeli-conflict/gaza-news/op-guardian-of-the-walls-behind-the-scenes-of-targeting-hamas-terror-669989; Richard Kemp, Trumpets and Tank Engines: A Turning Point in Gaza? Gatestone Institute (May 16, 2021), https://richard-kemp.com/trumpets-and-tank-engines-a-turning-point-in-gaza/.

UN Watch