20 November 2012
CURRENT HOSTILITIES IN GAZA – MYTHS AND FACTS
Myth No 1: The Palestini­ans have had no choice but to resort to force against Israel in order to end Israel’s “occu­pa­tion” and “siege” of Gaza.

Facts:

• Israel com­pletely withdrew its military and civilian presence from the Gaza Strip in 2005 and ceased to exercise “effective control” over the territory, an essential element of occu­pa­tion for the purposes of inter­na­tion­al law: http://www.auilr.org/pdf/25/25 – 5‑4.pdf.
• Even Hamas leader Mahmoud Zahhar believes that Gaza is NOT under “occu­pa­tion” or “siege”: According to the Ma’an News Agency he said in September 2012: “Gaza has been freed from occu­pa­tion”. He confirmed also that Gaza is not under “siege”, stating that “con­ti­gu­ity with the outside world is easier as visitors from all over the world visited the coastal enclave. We are self-dependent in several aspects except petroleum and elec­tri­city”. http://www.maannews.net/eng/ViewDetails.aspx?ID=520228.
• More than 30,000 tons of supplies go into Gaza from Israel every week with the full co-operation of the Israeli gov­ern­ment, even during the current hos­til­it­ies.
• Israel does not control Gaza’s border with Egypt. Movements through that border (and under it via numerous smuggling tunnels) are beyond Israel’s control.

Myth No 2: Israel’s naval blockade of Gaza is unne­ces­sary and illegal.

Facts:

• The blockade was imposed by Israel in mid-2007 because Hamas staged a coup and illegally seized executive power in Gaza. It declared that it would not be bound by previous agree­ments made by the PLO not to import weapons and munitions into Gaza.
• In 2010 an inter­na­tion­al Panel of Inquiry was estab­lished by the Secretary-General of the UN under the chair­man­ship of Sir Geoffrey Palmer of New Zealand, an expert in inter­na­tion­al maritime law. The other legal experts on the panel were Alvaro Uribe (Colombia), Joseph Ciechan­over Itzhar (Israel) and Süleyman Özdem Sanberk (Turkey). Its findings can be found in a 105 page report search­able at: http://graphics8.nytimes.com/packages/pdf/world/Palmer-Committee-Final-report.pdf. In summary, the Palmer Report concluded that the Gaza blockade is legal. It described Israel’s naval blockade of Gaza as a “legit­im­ate security measure” in response to the “real threat” posed by armed groups in Gaza.

Myth No 3: Most of the rockets fired into Israel from Gaza are home-made and rel­at­ively harmless.

Facts:

• Hamas has pos­ses­sion of soph­ist­ic­ated Iranian-man­u­fac­tured Grad and Fajr‑5 rockets which have been fired at Israel’s largest city, Tel Aviv, and its capital, Jerusalem. These are capable of causing extensive loss of life and destruc­tion.
• At least half of Israel’s 7 million citizens, Jews and Arabs, are now within range of these rockets.
• The Qassem rockets that are man­u­fac­tured in Gaza are less soph­ist­ic­ated but have also claimed Israeli lives and caused much destruc­tion in southern Israel. Nurseries, kinder­gartens, schools, uni­ver­sit­ies and many busi­nesses in Israel have been forced to close. Normal social and com­mer­cial life has been forced to a halt.
• No country faced with continual rocket fire from across its borders would fail to respond force­fully to end the aggres­sion, as Israel has done.

Myth No 4: Israel started the current round of hos­til­it­ies with Hamas.

Facts:

• Note that Myth No 1 con­tra­dicts Myth No 4.
• Some Palestini­an com­ment­at­ors claim that the current flare-up in hos­til­it­ies began on November 8 when a boy in Gaza was killed during a shootout between Palestini­an gunmen and Israeli forces who were disabling an explosive device. (AP reported that “It was not clear who shot the boy”). What Palestini­an com­ment­at­ors don’t say is that two days earlier Palestini­ans detonated an explosive device near IDF soldiers patrolling on the Israeli side of the border with Gaza, seriously injuring two of them. Nor do they mention that between 1 January 2012 and 5 November 2012, 674 rockets were fired from Gaza into Israel, with the rate of rocket fire accel­er­at­ing dra­mat­ic­ally in October.
• The accel­er­ated rate of rocket fire was not in response to any action by Israel. It was a cynical move aimed at strength­en­ing the political and strategic position of Hamas with the backing of its Muslim Broth­er­hood allies who dominate the new gov­ern­ment of Egypt.
• To further their own power, the leaders of Hamas think nothing of sac­ri­fi­cing the lives of their own people and risking embroil­ing 80 million Egyptians in renewed war with Israel after 35 years of peace: See http://www.weeklystandard.com/blogs/hamas-s-miscalculation_663620.html

Myth No 5: Hamas is a legit­im­ate national movement seeking to win the right of self-determ­in­a­tion for the Palestini­an people.

Facts:
Whilst inter­na­tion­al law permits armed force to be used by peoples strug­gling for inde­pend­ence, the force used must comply with the rules of inter­na­tion­al law. Non-State actors are legally bound by the same basic rules about the use of force as State actors. These rules are part of what is known as customary inter­na­tion­al law. Hamas and the other six armed groups which operate inde­pend­ently inside Gaza have sys­tem­at­ic­ally violated these rules over many years.
For example:

• These groups make no secret of the fact that their rockets delib­er­ately target Israeli civilians. This in itself is a war crime, a violation of the principle of dis­tinc­tion – requiring com­batants to do their best to dis­tin­guish between civilians and com­batants and civilian objects and military object­ives. The principle is a rule of customary inter­na­tion­al law and it is given expres­sion in Articles 48 and 51(2) of Addi­tion­al Protocol 1 to the Fourth Geneva Con­ven­tion.
• In violation of many of the customary law rules contained in Articles 51, 52 and 53 of Addi­tion­al Protocol 1 to the Fourth Geneva Con­ven­tion, Hamas uses civilian sites in Gaza as cover for military oper­a­tions, staging rocket attacks from or near res­id­en­tial areas, using civilian homes homes, mosques, business premises, uni­ver­sit­ies, gov­ern­ment buildings, com­mu­nic­a­tions facil­it­ies and even hospitals as weapons storage, blending in with civilians, and making use of human shields. Hamas also abuses the special pro­tec­tion given by inter­na­tion­al law to sites such as hospitals and religious buildings, by using them for weapons storage and bases for staging attacks.
• Using civilians and civilian sites as “human shields” is nothing new for Hamas. Hamas does this in the cynical knowledge that Israel’s defensive actions will inev­it­ably cause civilian cas­u­al­ties, despite the extensive measures taken by Israel to avoid them. For Hamas, Palestini­an civilians are mere fodder in the pro­pa­ganda war against Israel, as confirmed in a notorious statement by Hamas legis­lat­or, Fathi Hamad, on Al-Aksa TV on 29 February 2008:
  “[The enemies of Allah] do not know that the Palestini­an people has developed its [methods] of death and death-seeking. For the Palestini­an people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have formed human shields of the women, the children, the elderly, and the mujahideen, in order to challenge the Zionist bombing machine. It is as if they were saying to the Zionist enemy: “We desire death like you desire life.” (Emphases added). See http://www.youtube.com/watch?v=CWIDZ7Jpdqg
• Hamas and other Islamist groups are openly dedicated to the pursuit of criminal object­ives, including the elim­in­a­tion by force of a member State of the UN (Israel) and removing (ie killing or expelling) most of the 5.8 million Jews who currently live there. Extracted from the second paragraph of the opening of the Hamas Charter is the following:
  “Israel will exist and will continue to exist until Islam will oblit­er­ate it, just as it oblit­er­ated others before it”.
  And again in Article 7:
  “The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him. Only the Gharkad tree, (evidently a certain kind of tree) would not do that because it is one of the trees of the Jews.”
• Israel’s conflict with Hamas is not about the failure of the Palestini­ans to date to achieve statehood in the West Bank and Gaza. Hamas leaders have openly and repeatedly rejected a set­tle­ment of the Israel-Palestini­an conflict on the basis of the inter­na­tion­ally-endorsed principle of two States for two peoples. Hamas’ relent­less attacks against Israeli civilians are part of a broader strategy which is driven by an abso­lut­ist ideology set out in its Charter – to destroy Israel, kill or drive out its Jewish pop­u­la­tion and establish an Islamist caliphate. Hamas fully deserves its status as a listed terrorist organ­isa­tion in Australia and numerous other countries. Far from being a legit­im­ate national movement, Hamas is a criminal organ­isa­tion with criminal object­ives. The goal of Hamas is genocide, not human rights.

Myth No 6: Israel has the right to defend itself, but the force it has used has been dis­pro­por­tion­ate. Far more Palestini­ans have died than Israelis.

Facts:

• In inter­na­tion­al law the pro­por­tion­al­ity calculus is not “tit for tat”. Pro­por­tion­al­ity is not measured by comparing the number of cas­u­al­ties on each side or the nature or extent of the force used by each side. The customary law rules contained in Articles 51(5)(b) and 57(2)(b) of Addi­tion­al Protocol 1 to the Fourth Geneva Con­ven­tion prohibit incid­ent­al civilian cas­u­al­ties that would be “excessive in relation to the concrete and direct military advantage anti­cip­ated”, not numbers of cas­u­al­ties that are dis­pro­por­tion­ately on one side or the other. Israel is entitled to use such force as is necessary to repel the source of the aggres­sion against its people and territory and to prevent the aggres­sion from recurring.
• Those who uncrit­ic­ally repeat the mantra that Israel is using dis­pro­por­tion­ate force in Gaza should also compare the IDF’s record with that of the armed forces of other demo­crat­ic countries in recent conflicts. In the 1991 Gulf war, a lawful war author­ized by the UN, the ratio was 2.125 civilian deaths for each enemy combatant killed. In the 2003 Iraq war it was 4.5 civilians per enemy combatant. In attacks by drone aircraft in Afgh­anistan, 10 civilians have died for each enemy combatant killed. Israel has been far more suc­cess­ful in min­im­iz­ing civilian cas­u­al­ties. In Gaza, two com­batants have been killed for each civilian.
• The use of civilians and civilian sites by Hamas as cover for its armed activ­it­ies in violation of inter­na­tion­al law does not immunize them from attacks which inev­it­ably have col­lat­er­al con­sequences of harm. Under Article 51(7) of Addi­tion­al Protocol 1 to the Fourth Geneva Con­ven­tion, civilians “shall not be used to render certain points or areas immune from military oper­a­tions, in par­tic­u­lar in attempts to shield military object­ives from attacks or to shield, favour or impede military oper­a­tions.” Further, under Article 28 of the Fourth Geneva Con­ven­tion, “the presence of a protected person may not be used to render certain points or areas immune from military oper­a­tions.” Therefore, Israel is not pro­hib­ited from attacking a military target simply because there are civilians or civilian struc­tures present.
• Civilian cas­u­al­ties as such are always appalling and tragic, and to be avoided if at all possible. They are not illegal per se on the law as it currently stands. The doc­u­ment­ary and video proof of Hamas’s exploit­a­tion of schools, mosques, hospitals and cultural centres to carry out its attacks is over­whelm­ing, and respons­ib­il­ity for any civilian deaths and damage that follow belongs to Hamas.

Myth No 7: Israel is not inter­ested in peace.

Facts:

• Israel com­pletely withdrew its military and civilian presence from the Gaza Strip in 2005. The oppor­tun­ity that this presented to Gazans to develop their economy and society has been squandered by Hamas, which has chosen instead to frog-march the people of Gaza down the path of war and bloodshed.
• Israel is committed to living in peace alongside a viable State of Palestine and has made repeated offers – in 2000, 2001 and 2008 – to resolve the conflict on the basis of the principle of two States for two peoples so that Israelis and Palestini­ans can each live in their own State in dignity and peace. This principle was ori­gin­ally endorsed by the UN General Assembly in November 1947, but was rejected then, and has been rejected ever since, by Palestini­an leaders. This has been, and remains, the root cause of the conflict.

Contact:
Peter Wertheim AM | Executive Director
phone: 02 8353 8500 | m: 0408 160 904 | fax 02 9361 5888
e: [email protected] | www.ecaj.org.au