FIVE DEFECTIVE CLAIMS LIKELY TO INFORM THE SCHABAS COMMISSION, AND OUTLINES OF THE REPLIES THAT ISRAEL SHOULD BE HONING FOR A PREEMPTIVE STRIKE    Peter Berkowitz  12-1-14

Hamas’s military actions against Israel are defensive because, despite its 2005 withdrawal, Israel continues to occupy the Gaza Strip. Under international law, an area is occupied if hostile forces exercise over it "effective control" -- that is, have boots on the ground and discharge the functions of government. Since no Israeli soldiers are in Gaza and Hamas governs Gaza, Israel does not occupy it.   

Israel's maritime blockade of Gaza is illegal. The U.N.'s 2011 Palmer Commission report (dealing with the 2010 flotilla controversy) concluded that since Hamas is waging war -- its 1988 charter declares a war of annihilation against Israel -- Israel has a right to impose a maritime blockade in self-defense to prevent the importation into Gaza of weapons and materials for weapons production, provided it allows for the basic humanitarian needs of Gaza's civilian population to be met, which Israel does. Similarly, Israel’s control of some Gaza land borders (Egypt controls a land border as well) and air space are legitimate defensive measures under the laws of war; they seek to protect against Hamas' armed aggression, which includes the firing of mortars, rockets, missiles, and the construction and exploitation of cross-border attack tunnels.

Israel used disproportionate force during Operation Protective Edge because approximately 2,150 Palestinians were killed while fewer than 75 Israelis were killed. Proportionality is not determined by counting casualties. It requires that the force used to eliminate military threats not be excessive. Earlier this month. Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, stated his opinion that in Operation Protective Edge, “Israel went to extraordinary lengths to limit collateral damage and civilian casualties.” Since Hamas's unlawful launching of thousands of rockets from civilian areas caused them to lose their immunity, Palestinian civilian deaths should presumptively be understood as Hamas's responsibility. 

Israel erred in not cooperating with Goldstone and should cooperate with Schabas. Israel declined to cooperate with the 2009 UNHRC investigation and should decline to cooperate this time too. Israel is the only nation for which the UNHRC demands such investigations in the midst of battle. Israel should not collaborate in the creation of a special body of law for it alone, particularly given the UNHRC's gross bias. 

The Israeli legal procedures for investigating war crimes are inadequate. The Israeli system compares favorably with those in the United States, the United Kingdom, Canada, Australia and elsewhere among the family of liberal democracies. 

To counter the coming blow to its good name being readied by the Schabas commission, Israel should continue with its own investigations and preemptively issue a preliminary report on the 2014 Gaza conflict, including photographs and videos documenting Hamas war crimes and illustrating Israel’s efforts to minimize civilian casualties. Israel’s ambassadors should explain the report’s findings in op-eds in leading European and American newspapers. And the ambassadors should flood the airwaves with radio and TV appearances. That the facts, the law, and the interests of liberal democracy are on Israel’s side hardly ensures victory. But it helps in rallying the home front and winning support of the decent and the reasonable abroad. 

 Peter Berkowitz is a senior fellow at the Hoover Institution, Stanford University.  His writings are posted at www.PeterBerkowitz.com and you can follow him on Twitter @BerkowitzPeter.