Germany backs Israel’s right to self-defence against Hamas “rocket terror”

Published: 25 May 2021 Author: Stefan Talmon

In the wake of Israelis celebrating “Jerusalem Day” – marking the capture of East Jerusalem in the 1967 Israeli-Arab war – and the impending eviction of Palestinians from their homes in the Israeli occupied Sheikh Jarrah and Silwan neighbourhoods of East Jerusalem, violent clashes erupted between Palestinians and Jews. On 10 May 2021, the violence escalated, and Israeli police stormed the compound known to Jews as Temple Mount and to Muslims as the Noble Sanctuary, which is home to the Al-Aqsa Mosque. According to the Palestine Red Crescent Society, more than 300 Palestinians were injured during the raid, as well as 21 police officers. The Islamic terrorist organisation, Hamas, which controls the Gaza Strip thereupon set Israel an ultimatum to withdraw its security forces from the compound and the Sheikh Jarrah neighbourhood by 6 p.m. local time.  Upon the expiry of its ultimatum, Hamas fired about 150 rockets into Israel from Gaza. Israel responded by carrying out air strikes against Hamas armed groups, rocket launchers and military posts in Gaza. In the following days, Hamas fired more than a thousand rockets into Israel which killed seven people, and Israel responded by further air strikes on Gaza which claimed the lives of at least 103 Palestinians – with civilians and children being killed on both sides.

During the regular government press conference on 12 May 2021, the German cabinet spokesperson made a statement on the rocket attacks on Israel, saying:

“The Federal Government strongly condemns these ongoing rocket attacks from the Gaza Strip on Israeli cities. There is no justification for this violence. Israel has the right to defend itself against these attacks.”

Asked for an assessment of the Israeli air strikes on Gaza, the cabinet spokesperson replied:

“You probably heard me just now: Israel has the right to defend itself against these ongoing rocket attacks from the Gaza Strip.”

During the press conference, the Federal Government was also asked whether the Palestinians generally had a right to self-defence against the Israeli occupation, even if that was not the case in the present situation. A spokesperson for the Federal Foreign Office replied:

“What Hamas has been doing has absolutely nothing to do with self-defence, it is an arbitrary escalation. Hamas issued an ultimatum and then started arbitrarily firing rockets at civilians. It has nothing to do with self-defence.

I believe that this is not the right place for a fundamental discussion of international law. As a matter of principle in international law a State that is the victim of an armed attack is entitled to the right of self-defence.”

The spokesperson for the Federal Foreign Office also indicated that air strikes by Israel on civilian objects may be justified under international humanitarian law, stating that “it is a long- known tactic of Hamas to use civilian facilities and residential buildings for their weapons and quarters.”

In the regular government press conference on 14 May 2021, the cabinet spokesperson made another statement on the rocket attacks on Israel, saying:

“The Federal Chancellor condemns the ongoing rocket attacks on Israel in the strongest possible terms. These are terrorist attacks with one goal only, to kill people indiscriminately and arbitrarily and to spread fear. Nothing justifies such terror. These rocket attacks must stop immediately. The Federal Government supports Israel’s right to self-defence against these attacks.”

By the evening of 15 May 2021, Hamas had fired some 2,300 rockets from the Gaza Strip into Israel killing nine people and injuring 636. In response, Israel had conducted numerous air strikes in the territory, killing 145 Palestinians, including 45 children, and injuring more than 1,000. Commenting on the events, Federal Foreign Minister Heiko Maas told the Bild am Sonntag newspaper that:

“Israel is using its right to self-defence to protect its population from Hamas’ rocket terror.”

Foreign Minister Mass adopted the same language as one of his predecessors. During the so-called “50-day war” between Hamas and Israel in July-August 2014, Federal Foreign Minister Frank-Walter Steinmeier had also told the Bild am Sonntag newspaper: “Hamas’ rocket terror against Israeli cities and villages has to finally stop.”

Despite international calls for a ceasefire, both Hamas’ rocket attacks and Israel’s air strikes on Gaza continued unabated. Israeli fighter jets bombed, inter alia, several high-rise buildings in Gaza City, including the 12-storey al-Jalaa tower which housed many residential apartments and offices, including the bureaus of broadcaster Al Jazeera and The Associated Press (AP) news agency. The tower block had been evacuated after the owner received advanced warning of the strike. Israel justified the bombing of the building by claiming it “contained military assets belonging to the intelligence offices of the Hamas terror organization.”

During the regular government press conference on 17 May 2021, the cabinet spokesperson, triggered by an invitation to comment on the destruction of the building housing Al Jazeera and AP, offered the following general statement on the “rocket terror” against Israel:

“Hamas’ rocket fire must stop. This is terror designed to kill people arbitrarily. […] In this situation, the Federal Government stands by Israel and its right to protect its people and to defend itself. […] It is cynical that Hamas is taking the Palestinian population of Gaza hostage with this rocket terror carried out from densely populated areas, from civilian neighbourhoods.”

Pressed to comment on claims that the destruction of the building housing Al Jazeera and AP constituted a war crime, the cabinet spokesperson stated:

“Hamas is also active in densely populated areas and thus also takes the civilian population hostage. As I said, we back Israel’s right to self-defence. We trust that Israel will act with a sense of proportion and within the framework of proportionality. […] Self-defence must always be exercised within the framework of proportionality.”

The Federal Government, however, made it clear that the legality of the Israeli strike depended upon relevant intelligence that the building had been used by Hamas.

Asked whether this right to self-defence also included killing children in bombing raids, the cabinet spokesperson replied:

“We know, and the world knows, of Hamas’ deliberate strategy of running its tunnels near schools, of conducting its operations directly out of residential and densely populated areas. In doing so, Hamas is taking the Palestinian people of Gaza hostage. It is a cynical act.”

The Federal Government was further asked about the legality of Israel bombing buildings of the United Nations and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) in the Gaza Strip. The spokesperson for the Federal Foreign Office replied:

“With regard to the destruction of these buildings, we hold […] that Israel acts within the framework of its right to self-defence and that we concede this right to self-defence to Israel. […] We expect that, in exercising its right to self-defence, Israel respects the principle of proportionality.”

Referring to reported attacks against UNWRA buildings, another spokesperson of the Federal Foreign Office had made it clear earlier that in every armed conflict international humanitarian law must be complied with and “this means in particular the protection of civilians and civil objects.”

In a show of solidarity and support of Israel Federal Foreign Minister Heiko Maas travelled to the country and the Palestinian territories on 20 May 2021. Speaking at Ben Gurion Airport, Foreign Minister Maas said:

“We have always stressed that Israel has a right to defend itself. Part of that is degrading the establishments from which attacks on Israel are launched and preventing future attacks by making sure the infrastructure for those future attacks is no longer a danger.”

On the same day, Federal Chancellor Angela Merkel defended Israel’s right to defend itself, saying:

“There is Israel’s right to self-defence and we stand by it and therefore it is also right that Israel defends itself at this point and also defends itself massively.”

The strong statements by the Chancellor and Foreign Minister may have been aimed mainly at a domestic audience. Speaking also on the 20 May 2021, Germany’s Deputy Permanent Representative to the United Nations in New York delivered a more diplomatic and even-handed statement in the plenary meeting of the General Assembly on the situation in the Middle East and the question of Palestine, saying:

“The major escalation of violence in the past days has led to a high number of civilian deaths and injured, including women and children, in Israel and Gaza. Germany strongly condemns the rocket attacks from Gaza on Israel, which have killed and injured civilians in Israel. The indiscriminate firing of rockets by Hamas and other terrorist groups at Israeli population centres is unacceptable and must cease immediately. Israel has a legitimate right to defend itself against these attacks, which are continuing still today.

We deeply deplore the killing and injury of Palestinian civilians, including many women and children.

We are also gravely concerned about the humanitarian consequences of the current hostilities on the Palestinian civilian population in Gaza. They have resulted in a large number of civilian casualties, in the displacement of more than 72,000 persons and in damage to vital infrastructure. It is essential that civilians and critical infrastructure such as medical facilities, emergency shelters and schools are duly protected. We reiterate that any military operation must respect the principle of proportionality. […]

We remain seriously concerned about the threat of evictions of Palestinian families in the Sheikh Jarrah and Silwan neighbourhoods in East Jerusalem and have repeatedly urged Israel to cease all settlement activities, demolitions, confiscations and evictions in the Occupied Palestinian Territory, including in East Jerusalem, which are illegal under international law, constitute an obstacle to peace and threaten to make a negotiated two-state solution impossible.”

After 11 days of fighting, Israel and Hamas agreed to an Egypt-brokered ceasefire which came into effect on 2 a.m. local time on 21 May 2021. During the conflict, Hamas fired more than 4,000 rockets at Israeli cities and Israel launched hundreds of airstrikes in the Gaza Strip. According to health authorities in Gaza, who did not break the numbers down into fighters and civilians, at least 230 Palestinians were killed, including 65 children and 39 women, with 1,710 people wounded. On the Israeli side, 12 people were killed, including two children. The conflict also caused widespread destruction in the Gaza Strip and brought life in much of Israel to a standstill.

This was the fourth armed conflict between Hamas and Israel since Israel withdrew from the Gaza Strip in 2005. The German reaction is noteworthy for two reasons. First, from the start of the conflict Germany clearly took sides and came out in strong and vocal support of Israel’s right to self-defence. Germany backed Israel’s position that it has a right to self-defence against armed attacks by non-State actors such as Hamas. At the same time, Germany took the position that non-State actors such as the Palestinians are not entitled to such a right under international law. Second, and perhaps more interestingly, Foreign Minister Maas took the position that the right to self-defence includes the right to preventively destroy “infrastructure” from which future attacks could be launched. This seems to be quite a stretch of international humanitarian law. Civilian objects, like places of worship, houses or other dwellings, or schools shall not be the object of attack unless by their nature, location, purpose or use they make an effective contribution to military action and their total or partial destruction, capture or neutralization, “in the circumstances ruling at the time,” offers a definite military advantage. In case of doubt whether an object which is normally dedicated to civilian purposes “is being used” to make an effective contribution to military action, it shall be presumed not to be so used. The civilian objects thus must make an effective contribution to military action at the time of the attack, which would rule out any preventive destruction of civilian objects on the ground that they may be used in future attacks.

Category: Use of force

 

Prof. Dr. Stefan Talmon LL.M. M.A

Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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