Advance Edited Version
Advance Edited Version
Distr.
GENERAL
A/HRC/12/48
15 September 2009
Original: ENGLISH
HUMAN RIGHTS COUNCIL
Twelfth session
Agenda item 7
HUMAN RIGHTS IN PALESTINE AND OTHER
OCCUPIED ARAB TERRITORIES
Report of the United Nations Fact Finding Mission on the Gaza Conflict∗
∗ Late submission
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Paragraphs
Page
EXECUTIVE SUMMARY
PART ONE
INTRODUCTION
I.
METHODOLOGY
II.
CONTEXT
III. EVENTS OCCURRING BETWEEN THE “CEASEFIRE” OF
18 JUNE 2008 BETWEEN ISRAEL AND THE GAZA AUTHORITIES
AND THE START OF ISRAEL’S MILITARY OPERATIONS IN
GAZA ON 27 DECEMBER 2008
IV.
APPLICABLE LAW
PART TWO
OCCUPIED PALESTINIAN TERRITORY: THE GAZA STRIP
Section A
V.
THE BLOCKADE: INTRODUCTION AND OVERVIEW
VI.
OVERVIEW OF MILITARY OPERATIONS CONDUCTED BY ISRAEL
IN GAZA BETWEEN 27 DECEMBER 2008 AND
18 JANUARY 2009 AND DATA ON CASUALTIES
VII.
ATTACKS ON GOVERNMENT BUILDINGS
AND POLICE
VIII. OBLIGATION ON PALESTINIAN ARMED GROUPS IN GAZA TO TAKE FEASIBLE
PRECAUTIONS TO PROTECT THE CIVILIAN POPULATION
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IX. OBLIGATION ON ISRAEL TO TAKE FEASIBLE PRECAUTIONS TO PROTECT
CIVILIAN POPULATION AND CIVILIAN OBECTS IN GAZA
X.
INDISCRIMINATE ATTACKS BY ISRAELI ARMED FORCES
RESULTING IN THE LOSS OF LIFE AND INJURY TO CIVILIANS
XI. DELIBERATE ATTACKS AGAINST THE CIVILIAN POPULATION
XII. THE USE OF CERTAIN WEAPONS
XIII. ATTACKS ON THE FOUNDATIONS OF CIVILIAN LIFE IN GAZA:
DESTRUCTION OF INDUSTRIAL INFRASTRUCTURE, FOOD PRODUCTION,
WATER INSTALLATIONS, SEWAGE TREATMENT PLANTS AND HOUSING
XIV. THE USE OF PALESTINIAN CIVILIANS AS HUMAN SHIELDS
XV. DEPRIVATION OF LIBERTY: GAZANS DETAINED DURING THE ISRAELI
MILITARY OPERATIONS OF 27 DECEMBER 2008 TO 18 JANUARY 2009XVI.
OBJECTIVES AND STRATEGY OF ISRAEL’S MILITARY OPERATIONS IN GAZA
XVI. OBJECTIVES AND STRATEGY OF ISRAEL’S MILITARY OPERATIONS IN GAZA
XVII. THE IMPACT OF THE BLOCKADE AND OF THE MILITARY OPERATIONS ON
THE PEOPLE OF GAZA AND THEIR HUMAN RIGHTS
XVIII. THE CONTINUING DETENTION OF ISRAELI SOLDIER GILAD SHALIT
Section B
XIX. INTERNAL VIOLENCE AND TARGETING OF FATAH AFFILIATES BY
SECURITY SERVICES UNDER THE CONTROL OF THE GAZA AUTHORITIES
OCCUPIED PALESTINIAN TERRITORY: THE WEST BANK, INCLUDING EAST
JERUSALEM
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XX. TREATMENT OF PALESTINIANS IN THE WEST BANK BY ISRAELI SECURITY
FORCES, INCLUDING USE OF EXCESSIVE OR LETHAL FORCE DURING
DEMONSTRATIONS
XXI. DETENTION OF PALESTINIANS IN ISRAELI PRISONS
XXII. ISRAELI VIOLATIONS OF THE RIGHT TO FREE MOVEMENT AND ACCESS
XXIII. INTERNAL VIOLENCE, TARGETING OF HAMAS SUPPORTERS AND
RESTRICTIONS ON FREEDOM OF ASSEMBLY AND EXPRESSION BY THE
PALESTINIAN AUTHORITY
PART THREE: ISRAEL
XXIV. THE IMPACT ON CIVILIANS OF ROCKET AND MORTAR ATTACKS BY
PALESTINIAN ARMED GROUPS ON SOUTHERN ISRAEL
XXV. REPRESSION OF DISSENT IN ISRAEL, RIGHT TO ACCESS TO INFORMATION
AND TREATMENT OF HUMAN RIGHTS DEFENDERS
PART FOUR: ACCOUNTABILITY AND JUDICIAL REMEDIES
XXVI. PROCEEDINGS AND RESPONSES BY ISRAEL TO ALLEGATIONS OF
VIOLATIONS BY ITS ARMED FORCES AGAINST PALESTINIANS
XXVII. PROCEEDINGS BY PALESTINIAN AUTHORITIES
XXVIII.UNIVERSAL JURISDICTION
XXIX. REPARATION
PART FIVE: CONCLUSIONS AND RECOMMENDATIONS
XXX. CONCLUSIONS
XXXI.RECOMMENDATIONS
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Executive Summary
A.
Introduction
1. On 3 April 2009, the President of the Human Rights Council established the United Nations
Fact Finding Mission on the Gaza Conflict with the mandate “to investigate all violations of
international human rights law and international humanitarian law that might have been
committed at any time in the context of the military operations that were conducted in Gaza
during the period from 27 December 2008 and 18 January 2009, whether before, during or
after.”
2. The President appointed Justice Richard Goldstone, former judge of the Constitutional Court
of South Africa and former Prosecutor of the International Criminal Tribunals for the former
Yugoslavia and Rwanda, to head the Mission. The other three appointed members were:
Professor Christine Chinkin, Professor of International Law at the London School of Economics
and Political Science, who was a member of the high-level fact-finding mission to Beit Hanoun
(2008); Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan and former Special
Representative of the Secretary-General on the situation of human rights defenders, who was a
member of the International Commission of Inquiry on Darfur (2004); and Colonel Desmond
Travers, a former Officer in Ireland’s Defence Forces and member of the Board of Directors of
the Institute for International Criminal Investigations.
3. As is usual practice, the Office of the United Nations High Commissioner for Human Rights
(OHCHR) established a secretariat to support the Mission.
4. The Mission interpreted the mandate as requiring it to place the civilian population of the
region at the centre of its concerns regarding the violations of international law.
5. The Mission convened for the first time in Geneva between 4 and 8 May 2009. Additionally,
the Mission met in Geneva on 20 May, on 4 and 5 July, and between 1 and 4 August 2009. The
Mission conducted three field visits: two to the Gaza Strip between 30 May and 6 June, and
between 25 June and 1 July 2009; and one visit to Amman on 2 and 3 July 2009. Several staff of
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the Mission’s secretariat were deployed in Gaza from 22 May to 4 July 2009 to conduct field
investigations.
6. Notes verbales were sent to all Member States of the United Nations and United Nations
organs and bodies on 7 May 2009. On 8 June 2009 the Mission issued a call for submissions
inviting all interested persons and organizations to submit relevant information and
documentation to assist in the implementation of its mandate.
7. Public hearings were held in Gaza on 28 and 29 June and in Geneva on 6 and 7 July 2009.
8. The Mission repeatedly sought to obtain the cooperation of the Government of Israel. After
numerous attempts had failed, the Mission sought and obtained the assistance of the Government
of Egypt to enable it to enter the Gaza Strip through the Rafah crossing.
9. The Mission has enjoyed the support and cooperation of the Palestinian Authority and of the
Permanent Observer Mission of Palestine to the United Nations. Due to the lack of cooperation
from the Israeli Government, the Mission was unable to meet members of the Palestinian
Authority in the West Bank. The Mission did, however, meet officials of the Palestinian
Authority, including a cabinet minister, in Amman. During its visits to the Gaza Strip, the
Mission held meetings with senior members of the Gaza authorities and they extended their full
cooperation and support to the Mission.
10. Subsequent to the public hearings in Geneva, the Mission was informed that a Palestinian
participant, Mr. Muhammad Srour, had been detained by Israeli security forces when returning
to the West Bank and became concerned that his detention may have been a consequence of his
appearance before the Mission. The Mission is in contact with him and continues to monitor
developments.
B.
Methodology
11. To implement its mandate, the Mission determined that it was required to consider any
actions by all parties that might have constituted violations of international human rights law or
international humanitarian law. The mandate also required it to review related actions in the
entire Occupied Palestinian Territory and Israel.
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12. With regard to temporal scope, the Mission decided to focus primarily on events, actions or
circumstances occurring since 19 June 2008, when a ceasefire was agreed between the
Government of Israel and Hamas. The Mission has also taken into consideration matters
occurring after the end of military operations that constitute continuing human rights and
international humanitarian law violations related to or as a consequence of the military
operations, up to 31 July 2009.
13. The Mission also analysed the historical context of the events that led to the military
operations in Gaza between during the period from 27 December 2008 and 18 January 2009 and
the links between these operations and overarching Israeli policies vis-à-vis the Occupied
Palestinian Territory.
14. The Mission considered that the reference in its mandate to violations committed “in the
context” of the December–January military operations required it to include restrictions on
human rights and fundamental freedoms relating to Israel's strategies and actions in the context
of its military operations.
15. The normative framework for the Mission has been general international law, the Charter of
the United Nations, international humanitarian law, international human rights law and
international criminal law.
16. This report does not purport to be exhaustive in documenting the very high number of
relevant incidents that occurred in the period covered by the Mission’s mandate. Nevertheless,
the Mission considers that the report is illustrative of the main patterns of violations. In Gaza, the
Mission investigated 36 incidents.
17. The Mission based its work on an independent and impartial analysis of compliance by the
parties with their obligations under international human rights and humanitarian law in the
context of the recent conflict in Gaza, and on international investigative standards developed by
the United Nations.
18. The Mission adopted an inclusive approach in gathering information and seeking views.
Information-gathering methods included: (a) the review of reports from different sources; (b)
interviews with victims, witnesses and other persons having relevant information); (c) site visits
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to specific locations in Gaza where incidents had occurred; (d) the analysis of video and
photographic images, including satellite imagery; (e) the review of medical reports about injuries
to victims; (f) the forensic analysis of weapons and ammunition remnants collected at incident
sites; (g) meetings with a variety of interlocutors; (h) invitations to provide information relating
to the Mission’s investigation requirements; (i) the wide circulation of a public call for written
submissions; (j) public hearings in Gaza and in Geneva;
19. The Mission conducted 188 individual interviews. It reviewed more than 300 reports,
submissions and other documentation either researched of its own motion, received in reply to its
call for submissions and notes verbales or provided during meetings or otherwise, amounting to
more than 10,000 pages, over 30 videos and 1,200 photographs.
20. By refusing to cooperate with the Mission, the Government of Israel prevented it from
meeting Israeli government officials, but also from travelling to Israel to meet with Israeli
victims and to the West Bank to meet with Palestinian Authority representatives and Palestinian
victims.
21. The Mission conducted field visits, including investigations of incident sites, in the Gaza
Strip. This allowed the Mission to observe first-hand the situation on the ground, and speak to
many witnesses and other relevant persons.
22. The purpose of the public hearings, which were broadcast live, was to enable victims,
witnesses and experts from all sides to the conflict to speak directly to as many people as
possible in the region as well as in the international community. The Mission gave priority to
the participation of victims and people from the affected communities. The 38 public testimonies
covered facts as well as legal and military matters. The Mission had initially intended to hold
hearings in Gaza, Israel and the West Bank. However, denial of access to Israel and the West
Bank resulted in the decision to hold hearings of participants from Israel and the West Bank in
Geneva.
23. In establishing its findings, the Mission sought to rely primarily and whenever possible on
information it gathered first-hand. Information produced by others, including reports, affidavits
and media reports, was used primarily as corroboration.
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24. The Mission’s final conclusions on the reliability of the information received were made
taking into consideration the Mission’s assessment of the credibility and reliability of the
witnesses it met, verifying sources and methodology used in reports and documents produced by
others, cross-referencing the relevant material and information, and assessing whether, in all the
circumstances, there was sufficient information of a credible and reliable nature for the Mission
to make a finding in fact.
25. On this basis, the Mission has, to the best of its ability, determined what facts have been
established. In many cases it has found that acts entailing individual criminal responsibility have
been committed. In all of these cases the Mission has found that there is sufficient information to
establish the objective elements of the crimes in question. In almost all of the cases the Mission
has also been able to determine whether or not it appears that the acts in question were done
deliberately or recklessly or in the knowledge that the consequence that resulted would result in
the ordinary course of events. The Mission has thus referred in many cases to the relevant fault
element (mens rea). The Mission fully appreciates the importance of the presumption of
innocence: the findings in the report do not subvert the operation of that principle. The findings
do not attempt to identify the individuals responsible for the commission of offences nor do they
pretend to reach the standard of proof applicable in criminal trials.
26. In order to provide the parties concerned with an opportunity to submit additional relevant
information and express their position and respond to allegations, the Mission also submitted
comprehensive lists of questions to the Government of Israel, the Palestinian Authority and the
Gaza authorities in advance of completing its analysis and findings. The Mission received replies
from the Palestinian Authority and the Gaza authorities but not from Israel.
C.
Facts investigated by the Mission, factual and legal findings
The Occupied Palestinian Territory: the Gaza Strip
1.
The Blockade
27. The Mission focussed (Chapter V) on the process of economic and political isolation
imposed by Israel on the Gaza Strip, generally referred to as a “blockade”. The blockade
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comprises measures such as restrictions on the goods that can be imported into Gaza and the
closure of border crossings for people, goods and services, sometimes for days, including cuts on
the provision of fuel and electricity. Gaza’s economy is further severely affected by the reduction
of the fishing zone open to the Palestinian fishermen and the establishment of a “buffer zone”
along the border between Gaza and Israel which reduces the land available for agriculture and
industrial activity. In addition to creating an emergency situation, the blockade significantly
weakened the capacities of the population and of the health, water and other public sectors to
react to the emergency created by the military operations.
28. The Mission holds the view that Israel continues to be duty-bound under the Fourth Geneva
Convention and to the full extent of the means available to it to ensure the supply of foodstuff,
medical and hospital items and others to meet the humanitarian needs of the population of the
Gaza Strip without qualification.
2.
Overview of Israel’s military operations in the Gaza Strip and casualties
29. Israel deployed its navy, air force and army in the operation it codenamed “Operation Cast
Lead”. The military operations in the Gaza Strip included two main phases, the air phase and the
air-land phase, and lasted from 27 December 2008 to 18 January 2009. The Israeli offensive
began with a week-long air attack, from 27 December until 3 January 2009. The air force
continued to play an important role in assisting and covering the ground forces from 3 January to
18 January 2009. The army was responsible for the ground invasion, which began on 3 January
2009 when ground troops entered Gaza from the north and from the east. The available
information indicates that the Golani, Givati and Paratrooper Brigades and five Armoured Corps
Brigades were involved. The navy was used in part to shell the Gaza coast during the operations.
Chapter VI also locates the incidents investigated by the Mission, described in Chapters VII to
XV, in the context of the military operations.
30. Statistics about Palestinians who lost their life during the military operations vary. Based on
extensive field research, non-governmental organizations place the overall number of persons
killed between 1,387 and 1,417. The Gaza authorities report 1,444 fatal casualties. The
Government of Israel provides a figure of 1,166. The data provided by non-governmental
sources with regard to the percentage of civilians among those killed are generally consistent and
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raise very serious concerns with regard to the way Israel conducted the military operations in
Gaza.
31. According to the Government of Israel, during the military operations there were 4 Israeli
fatal casualties in southern Israel, of whom 3 were civilians and one soldier, killed by rockets
and mortars attacks by Palestinian armed groups. In addition, 9 Israeli soldiers were killed during
the fighting inside the Gaza strip, 4 of whom as a result of friendly fire.
3. Attacks by Israeli forces on government buildings and persons of the Gaza authorities,
including police
32. Israeli armed forces launched numerous attacks against buildings and persons of the Gaza
authorities. As far as attacks on buildings are concerned, the Mission examined the Israeli strikes
against the Palestinian Legislative Council and the Gaza main prison (Chapter VII). Both
buildings were destroyed to an extent that puts them out of use. Statements by Israeli
Government and armed forces representatives justified the attacks arguing that political and
administrative institutions in Gaza are part of the “Hamas terrorist infrastructure”. The Mission
rejects this position. It finds that there is no evidence that the Legislative Council building and
the Gaza main prison made an effective contribution to military action. On the information
available to it, the Mission finds that the attacks on these buildings constituted deliberate attacks
on civilian objects in violation of the rule of customary international humanitarian law whereby
attacks must be strictly limited to military objectives. These facts further indicate the
commission of the grave breach of extensive destruction of property, not justified by military
necessity and carried out unlawfully and wantonly.
33. The Mission examined the attacks against six police facilities, four of them during the first
minutes of the military operations on 27 December 2008, resulting in the death of 99 policemen
and nine members of the public. The overall around 240 policemen killed by Israeli forces
constitute more than one sixth of the Palestinian casualties. The circumstances of the attacks and
the Government of Israel July 2009 report on the military operations clarify that the policemen
were deliberately targeted and killed on the ground that the police as an institution, or a large
part of the policemen individually, are in the Government of Israel’s view part of the Palestinian
military forces in Gaza.
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34. To examine whether the attacks against the police were compatible with the principle of
distinction between civilian and military objects and persons, the Mission analysed the
institutional development of the Gaza police since Hamas took complete control of Gaza in July
2007 and merged the Gaza police with the “Executive Force” it had created after its election
victory. The Mission finds that, while a great number of the Gaza policemen were recruited
among Hamas supporters or members of Palestinian armed groups, the Gaza police were a
civilian law-enforcement agency. The Mission also concludes that the policemen killed on 27
December 2008 cannot be said to have been taking a direct part in hostilities and thus did not
lose their civilian immunity from direct attack as civilians on this ground. The Mission accepts
that there may be individual members of the Gaza police that were at the same time members of
Palestinian armed groups and thus combatants. It concludes, however, that the attacks against the
police facilities on the first day of the armed operations failed to strike an acceptable balance
between the direct military advantage anticipated (i.e. the killing of those policemen who may
have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other
policemen killed and members of the public who would inevitably have been present or in the
vicinity), and therefore violated international humanitarian law.
4. Obligation to take feasible precautions to protect civilian population and objects by
Palestinian armed groups in Gaza
35. The Mission examined whether and to what extent the Palestinian armed groups violated
their obligation to exercise care and take feasible precautions to protect the civilian population in
Gaza from the inherent dangers of the military operations (Chapter VIII). The Mission was faced
with a certain reluctance by the persons it interviewed in Gaza to discuss the activities of the
armed groups. On the basis of the information gathered, the Mission found that Palestinian
armed groups were present in urban areas during the military operations and launched rockets
from urban areas. It may be that the Palestinian combatants did not at all times adequately
distinguish themselves from the civilian population. The Mission found no evidence, however, to
suggest that Palestinian armed groups either directed civilians to areas where attacks were being
launched or that they forced civilians to remain within the vicinity of the attacks.
36. Although the situations investigated by the Mission did not establish the use of mosques for
military purposes or to shield military activities, it cannot exclude that this might have occurred
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in other cases. The Mission did not find any evidence to support the allegations that hospital
facilities were used by the Gaza authorities or by Palestinian armed groups to shield military
activities and that ambulances were used to transport combatants or for other military purposes.
On the basis of its own investigations and the statements by UN officials, the Mission excludes
that Palestinian armed groups engaged in combat activities from UN facilities that were used as
shelters during the military operations. The Mission cannot, however, discount the possibility
that Palestinian armed groups were active in the vicinity of such UN facilities and hospitals.
While the conduct of hostilities in built-up areas does not, of itself, constitute a violation of
international law, Palestinian armed groups, where they launched attacks close to civilian or
protected buildings, unnecessarily exposed the civilian population of Gaza to danger.
5. Obligation to take feasible precautions to protect civilian population and objects by
Israel in Gaza
37. The Mission examined how Israeli forces discharged their obligation to take feasible
precautions to protect the civilian population of Gaza, including particularly the obligation to
give effective advance warning of attacks (Chapter IX). The Mission acknowledges the
significant efforts made by Israel to issue warnings through telephone calls, leaflets and radio
broadcasts and accepts that in some cases, particularly when the warnings were sufficiently
specific, they encouraged residents to leave an area and get out of harms way. However, the
Mission also notes factors that significantly undermined the effectiveness of the warnings issued.
These include the lack of specificity and thus credibility of many pre-recorded phone messages
and leaflets. The credibility of instructions to move to city centres for safety was also diminished
by the fact that the city centres themselves had been the subject of intense attacks during the air
phase of the military operations. The Mission also examined the practice of dropping lighter
explosives on roofs (so-called “roof knocking”). It concludes that this technique is not effective
as a warning and constitutes a form of attack against the civilians inhabiting the building.
Finally, the Mission stresses that the fact that a warning was issued does not relieve a
commander and his subordinates of taking all other feasible measures to distinguish between
civilians and combatants.
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38. The Mission also examined the precautions taken by Israeli forces in the context of three
specific attacks they launched. On 15 January 2009, the UNRWA field office compound in Gaza
City came under shelling with high explosive and white phosphorous munitions. The Mission
notes that the attack was extremely dangerous, as the compound offered shelter to between 600
and 700 civilians and contained a huge fuel depot. The Israeli forces continued the attack over
several hours in spite of having been fully alerted to the risks they created. The Mission
concludes that Israeli armed forces violated the customary international law requirement to take
all feasible precautions in the choice of means and method of attack with a view to avoiding and
in any event minimizing incidental loss of civilian life, injury to civilians and damage to civilian
objects.
39. The Mission also finds that, on the same day, the Israeli forces directly and intentionally
attacked the Al Quds Hospital in Gaza City and the adjacent ambulance depot with white
phosphorous shells. The attack caused fires which took a whole day to extinguish and caused
panic among the sick and wounded who had to be evacuated. The Mission finds that no warning
was given at any point of an imminent strike. On the basis of its investigation, the Mission
rejects the allegation that fire was directed at Israeli forces from within the hospital.
40. The Mission also examined the intense artillery attacks, again including white phosphorous
munitions, on Al Wafa hospital in eastern Gaza City, a facility for patients receiving long-term
care and suffering from particularly serious injuries. On the basis of the information gathered,
the Mission found a violation of the prohibition of attacks on civilian hospitals in the cases of
both hospitals. The Mission also highlights that the warnings given by leaflets and pre-recorded
phone messages in the case of Al Wafa hospital demonstrate the complete ineffectiveness of
certain kinds of routine and generic warnings.
6. Indiscriminate attacks by Israeli forces resulting in the loss of life and injury to civilians
41. The Mission examined the mortar shelling of al-Fakhura junction in Jabalya next to a
UNRWA school which at the time was used as a shelter housing more than 1,300 people
(Chapter X). The Israeli forces launched at least four mortar shells. One landed in the courtyard
of a family home, killing eleven people assembled there. Three other shells landed on al-Fakhura
Street, killing at least a further 24 people and injuring as many as 40. The Mission examines in
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detail statements by Israeli Government representatives alleging that the attack was launched in
response to a mortar attack from an armed Palestinian group. While the Mission does not
exclude that this may have been the case, it considers the credibility of Israel’s position damaged
by the series of inconsistencies, contradictions and factual inaccuracies in the statements
justifying the attack.
42. In drawing its legal conclusions on the attack against al-Fakhura junction, the Mission
recognizes that for all armies proportionality decisions, weighing the military advantage to be
gained against the risk of killing civilians, will present very genuine dilemmas in certain cases.
The Mission does not consider this to be such a case. The firing of at least four mortar shells to
attempt to kill a small number of specified individuals in a setting where large numbers of
civilians were going about their daily business and 1,368 people were sheltering nearby cannot
meet the test of what a reasonable commander would have determined to be an acceptable loss of
civilian life for the military advantage sought. The Mission considers thus the attack to have
been indiscriminate in violation of international law, and to have violated the right to life of the
Palestinian civilians killed in these incidents.
7. Deliberate attacks against the civilian population
43. The Mission investigated eleven incidents in which Israeli forces launched direct attacks
against civilians with lethal outcome (Chapter XI). The cases examined in this part of the report
are, with one exception, all cases in which the facts indicate no justifiable military objective
pursued by the attack. The first two incidents are attacks against houses in the Samouni
neighbourhood south of Gaza City, including the shelling of a house in which Palestinian
civilians had been forced to assemble by the Israeli forces. The following group of seven
incidents concern the shooting of civilians while they were trying to leave their homes to walk to
a safer place, waving white flags and, in some of the cases, following an injunction from the
Israeli forces to do so. The facts gathered by the Mission indicate that all the attacks occurred
under circumstances in which the Israeli forces were in control of the area and had previously
entered into contact with or at least observed the persons they subsequently attacked, so that they
must have been aware of their civilian status. In the majority of these incidents, the consequences
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of the Israeli attacks against civilians were aggravated by their subsequent refusal to allow the
evacuation of the wounded or to permit access to ambulances.
44. These incidents indicate that the instructions given to the Israeli forces moving into Gaza
provided for a low threshold for the use of lethal fire against the civilian population. The Mission
found strong corroboration of this trend emerging from its fact-finding in the testimonies of
Israeli soldiers collected in two publications it reviewed.
45. The Mission further examined an incident in which a mosque was targeted with a missile
during the early evening prayer, resulting in the death of fifteen, and an attack with flechette
munitions on a crowd of family and neighbours at a condolence tent, killing five. The Mission
finds that both attacks constitute intentional attacks against the civilian population and civilian
objects.
46. From the facts ascertained in all the above cases, the Mission finds that the conduct of the
Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of
wilful killings and wilfully causing great suffering to protected persons and as such give rise to
individual criminal responsibility. It also finds that the direct targeting and arbitrary killing of
Palestinian civilians is a violation of the right to life.
47. The last incident concerns the launch of a bomb on a house resulting in the killing of 22
family members. Israel’s position in this case is that there was an “operational error” and that the
intended target was a neighbouring house storing weapons. On the basis of its investigation, the
Mission expresses significant doubts about the Israeli authorities’ account of the incident. The
Mission concludes that, if indeed a mistake was made, there could not be said to be a case of
wilful killing. State responsibility of Israel for an internationally wrongful act, however, would
remain.
8. The use of certain weapons
48. Based on its investigation of incidents involving the use of certain weapons such as white
phosphorous and flechette missiles, the Mission, while accepting that white phosphorous is not at
this stage proscribed under international law, finds that the Israeli armed forces were
systematically reckless in determining its use in built-up areas. Moreover, doctors who treated
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patients with white phosphorous wounds spoke about the severity and sometimes untreatable
nature of the burns caused by the substance. The Mission believes that serious consideration
should be given to banning the use of white phosphorous in built-up areas. As to flechettes, the
Mission notes that they are an area weapon incapable of discriminating between objectives after
detonation. They are, therefore, particularly unsuitable for use in urban settings where there is
reason to believe civilians may be present.
49. While the Mission is not in a position to state with certainty that so-called dense inert metal
explosive (DIME) munitions were used by the Israeli armed forces, it did receive reports from
Palestinian and foreign doctors who operated in Gaza during the military operations of a high
percentage of patients with injuries compatible with their impact. DIME weapons and weapons
armed with heavy metal are not prohibited under international law as it currently stands, but do
raise specific health concerns. Finally, the Mission received allegations that depleted and non-
depleted uranium were used by Israeli forces in Gaza. These allegations were not further
investigated by the Mission.
9. Attacks on the foundations of civilian life in Gaza: destruction of industrial
infrastructure, food production, water installations, sewage treatment and housing
50. The Mission investigated several incidents involving the destruction of industrial
infrastructure, food production, water installations, sewage treatment and housing (Chapter
XIII). Already at the beginning of the military operations, the Al Bader flour mill was the only
flour mill in the Gaza Strip still operating. The flour mill was hit by a series of air strikes on 9
January 2009 after several false warnings had been issued on previous days. The Mission finds
that its destruction had no military justification. The nature of the strikes, in particular the precise
targeting of crucial machinery, suggests that the intention was to disable the factory in terms of
its productive capacity. From the facts it ascertained, the Mission finds that there has been a
violation of the grave breaches provisions of the Fourth Geneva Convention. Unlawful and
wanton destruction which is not justified by military necessity amounts to a war crime. The
Mission also finds that the destruction of the mill was carried out for the purposes of denying
sustenance to the civilian population, which is a violation of customary international law and
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may constitute a war crime. The strike on the flour mill further constitutes a violation of human
rights provisions regarding the right to adequate food and means of subsistence.
51. The chicken farms of Mr. Sameh Sawafeary in the Zeitoun neighbourhood south of Gaza
City reportedly supplied over 10 per cent of the Gaza egg market. Armoured bulldozers of the
Israeli forces systematically flattened the chicken coops, killing all 31,000 chickens inside, and
destroyed the plant and material necessary for the business. The Mission concludes that this was
a deliberate act of wanton destruction not justified by any military necessity and draws the same
legal conclusions as in the case of the destruction of the flour mill.
52. Israeli forces also carried out a strike against a wall of one of the raw sewage lagoons of the
Gaza Waste Water Treatment Plant, which caused the outflow of more than 200,000 cubic
metres of raw sewage into neighbouring farmland. The circumstances of the strike on the lagoon
suggest that it was deliberate and premeditated. The Namar Wells complex in Jabalya consisted
of two water wells, pumping machines, a generator, fuel storage, a reservoir chlorination unit,
buildings and related equipment. All were destroyed by multiple air strikes on the first day of the
Israeli aerial attack. The Mission considers it unlikely that a target the size of the Namar Wells
could have been hit by multiple strikes in error. It found no grounds to suggest that there was any
military advantage to be had by hitting the wells and noted that there was no suggestion that
Palestinian armed groups had used the wells for any purpose. Considering that the right to
drinking water is part of the right to adequate food, the Mission makes the same legal findings as
in the case of the Al Bader flour mill.
53. During its visits to the Gaza Strip, the Mission witnessed the extent of the destruction of
residential housing caused by air strikes, mortar and artillery shelling, missile strikes, the
operation of bulldozers and demolition charges. In some cases, residential neighbourhoods were
subjected to air-launched bombing and to intensive shelling apparently in the context of the
advance of Israeli ground forces. In other cases, the facts gathered by the Mission strongly
suggest that the destruction of housing was carried out in the absence of any link to combat
engagements with Palestinian armed groups or any other effective contribution to military action.
Combining the results of its own fact finding on the ground with UNOSAT imagery and the
published testimonies of Israeli soldiers, the Mission concludes that, in addition to the extensive
destruction of housing for so-called “operational necessity” during their advance, the Israeli
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forces engaged in another wave of systematic destruction of civilian buildings during the last
three days of their presence in Gaza, aware of the imminence of withdrawal. The conduct of the
Israeli forces in this respect violated the principle of distinction between civilian and military
objects and amounted to the grave breach of “extensive destruction … of property, not justified
by military necessity and carried out unlawfully and wantonly”. Israeli forces further violated the
right to adequate housing of the families concerned.
54. The attacks on industrial facilities, food production and water infrastructure investigated by
the Mission are part of a broader pattern of destruction, which includes the destruction of the
only cement packaging plant in Gaza (the Atta Abu Jubbah plant), the Abu Eida factories for
ready-mix concrete, further chicken farms and the Al Wadia Group’s foods and drinks factories.
The facts ascertained by the Mission indicate that there was a deliberate and systematic policy on
the part of the Israeli armed forces to target industrial sites and water installations.
10. The use of Palestinian civilians as human shields
55. The Mission investigated four incidents in which Israeli forces coerced Palestinian civilian
men at gun point to take part in house searches during the military operations (Chapter XIV).
The Palestinian men were blindfolded and handcuffed as they were forced to enter houses ahead
of the Israeli soldiers. In one of the incidents, Israeli forces repeatedly forced a man to enter a
house in which Palestinian combatants were hiding. Published testimonies of Israeli soldiers who
took part in the military operations confirm the continued use of this practice, in spite of clear
orders from Israel’s High Court to the armed forces to put an end to it and repeated public
assurances from the armed forces that the practice had been discontinued. The Mission
concludes that this practice amounts to the use of Palestinian civilians as human shields and is
therefore prohibited by international humanitarian law. It puts the right to life of the civilians at
risk in an arbitrary and unlawful manner and constitutes cruel and inhuman treatment. The use of
human shields also is a war crime. The Palestinian men used as human shields were questioned
under threat of death or injury to extract information about Hamas, Palestinian combatants and
tunnels. This constitutes a further violation of international humanitarian law.
11. Deprivation of liberty: Gazans detained during the Israeli operation of 27 December
2008 to 18 January 2009
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56. During the military operations Israeli armed forces rounded up large numbers of civilians and
detained them in houses and open spaces in Gaza and, in the case of many Palestinian men, also
took them to detention facilities in Israel. In the cases investigated by the Mission, the facts
gathered indicate that none of the civilians were armed or posed any apparent threat to the Israeli
soldiers. Chapter XV of the report is based on the Mission’s interviews with Palestinian men
who were detained, as well as on the Mission’s review of other relevant material, including
interviews with relatives and statements from other victims submitted to the Mission.
57. From the facts gathered, the Mission finds that there were numerous violations of
international humanitarian law and human rights law committed in the context of these
detentions. Civilians, including women and children, were detained in degrading conditions,
deprived of food, water and access to sanitary facilities, and exposed to the elements in January
without any shelter. The men were handcuffed, blindfolded and repeatedly made to strip,
sometimes naked, at different stages of their detention.
58. In the Al Atatra area in north-western Gaza Israeli troops had dug out sand pits in which
Palestinian men, women and children were detained. Israeli tanks and artillery positions were
located inside the sand pits and around them and fired from next to the detainees.
59. The Palestinian men who were taken to detention facilities in Israel were subjected to
degrading conditions of detention, harsh interrogation, beatings and other physical and mental
abuse. Some of them were charged with being unlawful combatants. Those interviewed by the
Mission were released after the proceedings against them had apparently been discontinued.
60. In addition to arbitrary deprivation of liberty and violation of due process rights, the cases of
the detained Palestinian civilians highlight a common thread of the interaction between Israeli
soldiers and Palestinian civilians which emerged clearly also in many cases discussed in other
parts of the Report: continuous and systematic abuse, outrages on personal dignity, humiliating
and degrading treatment contrary to fundamental principles of international humanitarian law
and human rights law. The Mission concludes that the treatment of these civilians constitutes the
infliction of a collective penalty on those persons and amounts to measures of intimidation and
terror. Such acts are grave breaches of the Geneva Conventions and constitute a war crime.
12. Objectives and strategy of Israel’s military operations in Gaza
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61. The Mission reviewed available information on the planning of the Israeli military operations
in Gaza, on the advanced military technology available to the Israeli forces and on their training
in international humanitarian law (Chapter XVI). According to official Government information,
the Israeli armed forces have an elaborate legal advice and training system in place, which seeks
to ensure knowledge of the relevant legal obligations and support to commanders for compliance
in the field. The Israeli armed forces possess very advanced hardware and are also a market
leader in the production of some of the most advanced pieces of military technology available,
including UAVs. They have a very significant capacity for precision strikes by a variety of
methods, including aerial and ground launches. Taking into account the ability to plan, the
means to execute plans with the most developed technology available, and statements by the
Israeli military that almost no errors occurred, the Mission finds that the incidents and patterns of
events considered in the report are the result of deliberate planning and policy decisions.
62. The tactics used by Israeli military armed forces in the Gaza offensive are consistent with
previous practices, most recently during the Lebanon war in 2006. A concept known as the
Dahiya doctrine emerged then, involving the application of disproportionate force and the
causing of great damage and destruction to civilian property and infrastructure, and suffering to
civilian populations. The Mission concludes from a review of the facts on the ground that it
witnessed for itself that what was prescribed as the best strategy appears to have been precisely
what was put into practice.
63. In the framing of Israeli military objectives with regard to the Gaza operations, the concept
of Hamas’ “supporting infrastructure” is particularly worrying as it appears to transform civilians
and civilian objects into legitimate targets. Statements by Israeli political and military leaders
prior to and during the military operations in Gaza indicate that the Israeli military conception of
what was necessary in a war with Hamas viewed disproportionate destruction and creating the
maximum disruption in the lives of many people as a legitimate means to achieve not only
military but also political goals.
64. Statements by Israeli leaders to the effect that the destruction of civilian objects would be
justified as a response to rocket attacks (“destroy 100 homes for every rocket fired”), indicate the
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possibility of resort to reprisals. The Mission is of the view that reprisals against civilians in
armed hostilities are contrary to international humanitarian law.
13. The impact of the military operations and of the blockade on the Gaza population and
their human rights
65. The Mission examined the combined impact of the military operations and of the blockade
on the Gaza population and its enjoyment of human rights. The economy, employment
opportunities and family livelihoods were already severely affected by the blockade when the
Israeli offensive began. Insufficient supply of fuel for electricity generation had a negative
impact on industrial activity, on the operation of hospitals, on water supply to households and on
sewage treatment. Import restrictions and the ban on all exports from Gaza affected the industrial
sector and agricultural production. Unemployment levels and the percentage of the population
living in poverty and deep poverty were rising.
66. In this precarious situation, the military operations destroyed a substantial part of the
economic infrastructure. As a large part of the factories were targeted and destroyed or damaged,
poverty, unemployment and food insecurity further increased dramatically. The agricultural
sector similarly suffered due to the destruction of agricultural land, water wells and fishing boats
during the military operations. The continuation of the blockade impedes the reconstruction of
the economic infrastructure destroyed.
67. As a result of the razing of farmland and destruction of greenhouses, food insecurity is
expected to further worsen in spite of the increased quantities of food items allowed into Gaza
since the beginning of the military operations. Dependence on food assistance increases. Levels
of stunting and thinness in children and of anaemia prevalence in children and pregnant women
were worrying already before the military operations. The hardship caused by the extensive
destruction of shelter (UNDP reported 3,354 houses completely destroyed and 11,112 partially
damaged) and resulting displacement particularly affects children and women. In the water and
sanitation sector, the destruction of infrastructure (such as the destruction of the Namar wells and
the attack against the water treatment plant described in Chapter XIII), aggravated the pre-
existing situation. Already before the military operations, 80 percent of the water supplied in
Gaza did not meet the WHO’s standards for drinking water. The discharge of untreated or
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partially treated waste water into the sea is a further health hazard worsened by the military
operations.
68. The military operations and resulting casualties subjected the beleaguered Gaza health sector
to additional strain. Hospitals and ambulances were targeted by Israeli attacks. Patients with
chronic health conditions could not be given priority in hospitals faced with the influx of patients
with life-threatening injuries. Patients with hostilities-related injuries had often to be discharged
as early as possible to free beds. The long term health impact of these early discharges, as well as
of weapons containing substances such as tungsten and white phosphorous, remains a source of
concern. While the exact number of people who will suffer permanent disabilities is still
unknown, the Mission understands that many persons who sustained traumatic injuries during
the conflict still face the risk of permanent disability due to complications and inadequate
follow-up and physical rehabilitation.
69. The number of persons suffering from mental health problems is also bound to increase. The
Mission investigated a number of incidents in which adults and children witnessed the killing of
their loved ones. Doctors of the Gaza Community Mental Health Programme gave information
to the Mission on psychosomatic disorders, on a widespread state of alienation in the population,
and on “numbness” as a result of severe loss. They told the Mission that these conditions were
likely to in turn increase the readiness to embrace violence and extremism. They also told the
Mission that 20 percent of children in the Gaza Strip suffer Post Traumatic Stress Disorders.
70. Children’s learning difficulties of psychological origin are compounded by the impact of the
blockade and the military operations on the education infrastructure. 280 schools and
kindergartens were destroyed in a situation in which already restrictions on the importation of
construction materials meant that many school buildings were in serious need of repair.
71. The Mission’s attention was also drawn to the particular manner in which women were
affected by the military operations. The cases of women interviewed by the Mission in Gaza
dramatically illustrate the suffering resulting from the feeling of inability to provide children
with the care and security they need. Women’s responsibility for the household and the children
often forces them to conceal their own sufferings, resulting in their issues remaining
unaddressed. The number of women who are sole breadwinners increased, but their employment
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opportunities remain significantly inferior to men’s. The military operations and increased
poverty add to the potential for conflicts in the family and among widowed women and their in-
laws.
72. The Mission acknowledges that the supply of humanitarian goods, particularly foodstuffs,
allowed into Gaza by Israel temporarily increased during the military operations. The level of
goods allowed into Gaza before the military operations, however, was insufficient to meet the
needs of the population even before hostilities started, and has again decreased after the end of
the military operations. From the facts ascertained by it, the Mission believes that Israel has
violated its obligation to allow free passage of all consignments of medical and hospital objects,
food and clothing (article 23 of the Fourth Geneva Convention). The Mission also finds that
Israel violated specific obligations it has as Occupying Power spelled out in the Fourth Geneva
Convention, such as the duty to maintain medical and hospital establishments and services and to
agree to relief schemes if the occupied territory is not well supplied.
73. The Mission also concludes that in the destruction by Israeli armed forces of private
residential houses, water wells, water tanks, agricultural land and greenhouses there was a
specific purpose of denying them for their sustenance to the population of the Gaza Strip. The
Mission finds that Israel violated its duty to respect the right of the Gaza population to an
adequate standard of living, including access to adequate food, water and housing. The Mission
moreover finds violations of specific human rights provisions protecting the rights of children,
particularly those who are victims of armed conflict, women and the disabled.
74. The conditions of life in Gaza, resulting from deliberate actions of the Israeli forces and the
declared policies of the Government of Israel – as they were presented by its authorized and
legitimate representatives - with regard to the Gaza Strip before, during and after the military
operation, cumulatively indicate the intention to inflict collective punishment on the people of
the Gaza Strip in violation of international humanitarian law.
75. Finally, the Mission considered whether the series of acts that deprive Palestinians in the
Gaza Strip of their means of sustenance, employment, housing and water, that deny their
freedom of movement and their right to leave and enter their own country, that limit their access
a court of law and an effective remedy, could amount to persecution, a crime against humanity.
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From the facts available to it, the Mission is of the view that some of the actions of the
Government of Israel might justify a competent court finding that crimes against humanity have
been committed.
14. The continuing detention of Israeli soldier Gilad Shalit
76. The Mission notes the continued detention of Gilad Shalit, a member of the Israeli armed
forces, captured in 2006 by a Palestinian armed group. In reaction to his capture, the Israeli
Government ordered a number of attacks against infrastructure in the Gaza Strip and Palestinian
Authority offices as well as the arrest of eight Palestinian Government ministers and 26 members
of the Palestinian Legislative Council. The Mission heard testimonies indicating that during the
military operations of December 2008 – January 2009, Israeli soldiers questioned captured
Palestinians about the whereabouts of Gilad Shalit. Gilad Shalit’s father, Noam Shalit, appeared
before the Mission at the public hearing held in Geneva on 6 July 2009.
77. The Mission is of the opinion that, as a soldier who belongs to the Israeli armed forces and
who was captured during an enemy incursion into Israel, Gilad Shalit meets the requirements for
prisoner-of-war status under the Third Geneva Convention. As such, he should be protected,
treated humanely and be allowed external communication as appropriate according to that
Convention. The ICRC should be allowed to visit him without delay. Information about his
condition should also be provided promptly to his family.
78. The Mission is concerned by declarations made by various Israeli officials, who have
indicated the intention of maintaining the blockade of the Gaza Strip until the release of Gilad
Shalit. The Mission is of the opinion that this would constitute collective punishment of the
civilian population of the Gaza Strip.
15. Internal violence and targeting of Fateh affiliates by security services under the control
of the Gaza authorities
79. The Mission obtained information about violence against political opponents by the security
services that report to the Gaza authorities. These included killing of a number of Gaza residents
between the beginning of the Israeli military operations and 27 February. Among these were
some detainees who had been at al-Saraya detention facility on 28 December, and who had fled
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following the Israeli aerial attack. Not all those killed after escaping detention were Fatah
affiliates, detained for political reasons, or charged with collaborating with the enemy. Some of
the escapees had been convicted of serious crimes, such as drug-dealing or murder, and had been
sentenced to death. The Mission was informed that the movement of many Fatah members was
restricted during Israel’s military operations in Gaza and that many were put under house arrest.
According to the Gaza authorities, arrests were made only after the end of the Israeli military
operations and only in relation to criminal acts and to restore public order.
80. The Mission gathered first-hand information on five cases of Fatah affiliates detained, killed
or subject to physical abuse by members of security forces or armed groups in Gaza. In most
cases those abducted from their homes or otherwise detained were reportedly not accused of
offences related to specific incidents, but rather targeted because of their political affiliation.
When charges were laid, these were always linked to suspected political activities. The
testimonies of witnesses and the reports provided by international and domestic human rights
organizations bear striking similarities and indicate that these attacks were not randomly
executed, but constituted part of a pattern of organized violence directed mainly against Fatah
affiliates and supporters. The Mission finds that such actions constitute serious violations of
human rights and are not consistent with either the Universal Declaration of Human Rights or the
Palestinian Basic Law.
The Occupied Palestinian Territory: the West Bank, including East Jerusalem
81. The Mission considered developments in Gaza and the West Bank as closely interrelated,
and analysed both to reach an informed understanding of and to report on issues within the
Mission’s mandate.
82. A consequence of Israel’s non-cooperation with the Mission was that the Mission was unable
to visit the West Bank to investigate alleged violations of international law there. However, the
Mission has received many oral and written reports and other relevant materials from
Palestinian, Israeli and international human rights organizations and institutions. In addition, the
Mission has met with representatives of human rights organizations, members of the Palestinian
legislature and community leaders. It heard experts, witnesses and victims in the public hearings,
interviewed affected individuals and witnesses and reviewed video and photographic material.
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16. Treatment of Palestinians by Israeli security forces in the West Bank, including use of
excessive or lethal force during demonstrations
83. Various witnesses and experts informed the Mission of a sharp increase in the use of force by
the Israeli security forces against Palestinians in the West Bank from the commencement of the
Israeli operations in Gaza (Chapter XIX). A number of protestors were killed by Israeli forces
during Palestinian demonstrations, including in support of the Gaza population under attack,
following the beginning of the operations, and scores were injured. The level of violence
employed in the West Bank during the time of the operation in Gaza, was sustained also after the
end of the operation.
84. Of particular concern to the Mission were allegations of the use of unnecessary, lethal force
by Israeli security forces, the use of live ammunitions, and the provision in the Israeli armed
forces “open fire regulations” of different rules to deal with disturbances where only Palestinians
are present, as compared to disturbances where Israelis are present. This raises serious concern
with regard to discriminatory policies vis-à-vis Palestinians. Eye-witnesses also reported to the
Mission the use of sniper fire in the context of crowd control. Witnesses spoke of the markedly
different atmosphere they encountered in the confrontation with the soldiers and border police
during demonstrations in which all checks and balances had been removed. Several witnesses
told the Mission that during the operation in Gaza, the sense in the West Bank was one of a “free
for all”, where anything was permitted.
85. Little if any action is taken by Israeli authorities to investigate, prosecute and punish violence
against Palestinians by settlers and members of security forces, including killings, resulting in a
situation of impunity. The Mission concludes that Israel has failed to fulfil its obligations to
protect the Palestinians from violence by private individuals under both international human
rights law and international humanitarian law.
17. Detention of Palestinians in Israeli prisons
86. It is estimated that since the beginning of the occupation, approximately 700,000 Palestinian
men, women and children have been detained by Israel. According to estimates, as at 1st June
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2009, there were approximately 8,100 Palestinian ‘political prisoners’ in detention in Israel,
including 60 women and 390 children. Most of these detainees are charged or convicted by the
Israeli Military Court System that operates for Palestinians in the West Bank and under which
due process rights for Palestinians are severely limited. Many are held in administrative
detention, and some under the Israeli “Unlawful Combatants Law”.
87. The Mission focussed on a number of issues in relation to Palestinian detainees that in its
view are linked to the December-January Israeli military operations in Gaza or their context.
88. Legal measures since Israel’s disengagement from Gaza in 2005 have resulted in differential
treatment for Gazan detainees. A 2006 law altered due process guarantees, and is applied only to
Palestinian suspects, the overwhelming majority of whom are from Gaza according to Israeli
government sources. The ICRC Family Visits Programme in the Gaza Strip was suspended in
2007, barring all means of communication between Gazan prisoners and the outside world.
89. During the Israeli military operations in Gaza, the number of children detained by Israel
increased compared to the same period in 2008. Many children were reportedly arrested on the
street and/or during demonstrations in the West Bank during the Gaza operations. Numbers of
child detainees continued to be high in the months following the end of the operations,
accompanied by reports of abuses by Israeli security forces.
90. A feature of Israel’s detention practice vis-à-vis the Palestinians since 2005 has been the
arrest of persons affiliated with Hamas. A few months before the Palestinian Legislative Council
(PLC) elections in 2005, Israel arrested numerous persons who had been involved in municipal
or PLC elections. Following the capture by Palestinian armed groups of Israeli soldier Gilad
Shalit in June 2006, the Israeli army arrested some 65 members of the PLC, Mayors and
Ministers, mostly Hamas members. All were held at least two years, generally in inadequate
conditions . Further arrests of Hamas leaders were conducted during the Gaza military
operations. The detention of the PLC members has meant that the PLC has been unable to
function and exercise its legislative and oversight function over the Palestinian executive.
91. The Mission finds that these practices have resulted in violations of international human
rights and humanitarian law, including the prohibition of arbitrary detention, the right to equal
protection under the law and not to be discriminated based on political beliefs and the special
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protections to which children are entitled. The Mission also finds that the detention of PLC
members may amount to collective punishment contrary to international humanitarian law.
18. Restrictions on freedom of movement in the West Bank
92. In the West Bank, Israel has long imposed a system of movement restrictions. Movement is
restricted by a combination of physical obstacles such as roadblocks, checkpoints and the Wall,
but also through administrative measures such as identity cards, permits, assigned residence,
laws on family reunification, and policies on the right to enter from abroad and the right of return
for refugees. Palestinians are denied access to areas expropriated for the building of the Wall and
its infrastructure, for use by settlements, buffer zones, military bases and military training zones,
and the roads built to connect these places. Many of these roads are “Israeli only” and forbidden
for Palestinian use. Tens of thousands of Palestinians today are subject to a “travel ban” imposed
by Israel, preventing them from travelling abroad. A number of witnesses and experts invited by
the Mission to meet in Amman and participate in the hearings in Geneva could not meet with the
Mission due to this travel ban.
93. The Mission has received reports that, during the Israeli offensive in Gaza, movement
restrictions in the West Bank were tightened. Israel imposed a “closure” on the West Bank for
several days. Additionally there were a greater number of checkpoints in the West Bank,
including in East Jerusalem, for the duration of the operation. Most of these were so-called
“flying” checkpoints. In January 2009, several areas of the West Bank between the Wall and the
Green line were declared “closed military areas”.
94. During and following the operations in Gaza, Israel deepened its hold on the West Bank
through an increased level of expropriation, an increased number of house demolitions,
demolition orders and of permits granted for homes built in settlements, and increased
exploitation of the natural resources in the West Bank. Following the operations in Gaza, Israel
has amended the regulations which determine the ability of persons with “Gaza ID” to move to
the West Bank, and vice versa, further entrenching the separation between the people of the West
Bank and Gaza.
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95. Israel’s Ministry of Housing and Planning is planning a further 73,000 settlement homes to
be built in the West Bank. The building of 15,000 of these homes has already been approved,
and, if all the plans are realized, the number of settlers in the occupied Palestinian territory will
be doubled.
96. The Mission believes that the movement and access restrictions to which West Bank
Palestinians are subject are disproportionate to any military objective served, in general, and
more so in relation to the increased restrictions during and to some extent after the military
operation in Gaza. In addition, the Mission is concerned about the steps taken recently to
formalise the separation between Gaza and the West Bank, and as such between two parts of the
OPT.
19. Internal violence and targeting of Hamas supporters by the Palestinian Authority,
restrictions on freedom of expression and assembly
97. The Mission has received allegations of violations relevant to its mandate committed by the
Palestinian Authority in the period under inquiry. These include violations related to the
treatment of (suspected) Hamas affiliates by the security services, including unlawful arrest and
detention. Several Palestinian human rights organizations have reported that practices used by
the Palestinian Authority security forces in the West Bank amount to torture and cruel, inhuman
and degrading treatment and punishment. There have been a number of cases of death in
detention where it is suspected that torture and other ill treatment may have contributed to, or
caused, the death of the detainee. Complaints of such practices have not been investigated.
98. Allegations were also received in relation to the use of excessive force and suppression of
demonstrations by Palestinian security services – particularly those in support of the population
of Gaza during the Israeli military operations. On these occasions Palestinian Authority security
services have allegedly arrested many individuals and prevented the media from covering the
events. The Mission also received allegations of harassment by Palestinian security services of
journalists who expressed critical views.
99. The disabling of the Palestinian Legislative Council following the arrest and detention by
Israel of several of its members has effectively curtailed parliamentary oversight over the PA
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executive. The executive has passed a number of decrees and regulations to enable its day to day
functioning.
100. Other allegations include the arbitrary closure of Hamas and other Islamic groups-
affiliated charities and associations or the revocation and non-renewal of their licenses, the
forcible replacement of board members of Islamic schools and other institutions and the
dismissal of Hamas affiliated teachers.
101. The Palestinian Authority continues to discharge a large number of civil and military
service employees, or suspend their salaries, under the pretext of “non-adherence to the
legitimate authority” or “non-obtainment of security approval” on their appointments, which has
become a pre-requirement for enrolment in public service”. In effect, this measure means the
exclusion of Hamas supporters or affiliates from public sector appointment.
102. The Mission is of the view that the reported measures are inconsistent with the
Palestinian Authority’s obligations deriving from the Universal Declaration on Human Rights
(UDHR) and the Palestinian Basic Law.
Israel
20. Impact on civilians of rocket and mortar attacks by Palestinian armed groups on
southern Israel
103. Palestinian armed groups have launched about 8000 rockets and mortars into southern
Israel since 2001 (Chapter XIII). While communities such as Sderot and Kibbutz Nir-Am have
been within the range of rocket and mortar fire since the beginning, the range of rocket fire
increased to nearly 40 kilometres from the Gaza border, encompassing towns as far north as
Ashdod, during the Israeli military operations in Gaza.
104. Since 18 June 2008, rockets fired by Palestinian armed groups in Gaza have killed 3
civilians inside Israel and 2 civilians in Gaza when a rocket landed short of the border on 26
December 2008. Reportedly, over 1000 civilians inside Israel were physically injured as a result
of rocket and mortar attacks, 918 of which were injured during the time of the Israeli military
operations in Gaza.
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105. The Mission has taken particular note of the high level of psychological trauma suffered
by the civilian population inside Israel. Data gathered by an Israeli organization in October 2007
found that 28.4% of adults and 72-94% of children in Sderot suffered from Post-Traumatic
Stress Disorder. 1596 people were reportedly treated for stress-related injuries during the
military operations in Gaza while over 500 people were treated following the end of the
operations.
106. Rocke and mortars have damaged houses, schools and cars in southern Israel. On 5
March 2009, a rocket struck a synagogue in Netivot. The rocket and mortar fire has adversely
impacted on the right to education of children and adults living in southern Israel. This is a result
of school closures and interruptions to classes by alerts and moving to shelters and also the
diminished ability to learn that is witnessed in individual experiencing symptoms of
psychological trauma.
107. The rocket and mortar fire has also adversely impacted on the economic and social life of
the affected communities. For communities such as Ashdod, Yavne, Beer Sheba, which
experienced rocket strikes for the first time during the Israeli military operations in Gaza, there
was a brief interruption to their economy and cultural brought about by the temporary
displacement of some of their residents. For towns closer to the Gaza border that have been
under rocket and mortar fire since 2001, the recent escalation has added to the exodus of
residents from these areas.
108. The Mission has determined that the rockets and, to a lesser extent, mortars, fired by the
Palestinian armed groups are incapable of being directed towards specific military objectives and
were fired into areas where civilian populations are based. The Mission has further determined
that these attacks constitute indiscriminate attacks upon the civilian population of southern Israel
and that where there is no intended military target and the rockets and mortars are launched into
a civilian population, they constitute a deliberate attack against a civilian population. These acts
would constitute war crimes and may amount to crimes against humanity. Given the seeming
inability of the Palestinian armed groups to direct the rockets and mortars towards specific
targets and given the fact that the attacks have caused very little damage to Israeli military assets,
the Mission finds that there is significant evidence to suggest that one of the primary purposes of
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the rocket and mortar attacks is to spread terror amongst the Israeli civilian population, a
violation of international law.
109. Noting that some of the Palestinian armed groups, along them Hamas, have publicly
expressed an intention to target civilians as reprisals for the fatalities of civilians in Gaza as a
result of Israeli military operations, the Mission is of the view that reprisals against civilians in
armed hostilities are contrary to international humanitarian law.
110. The Mission notes that the relatively few casualties sustained by civilians inside Israel is
due in large part to the precautions put into place by Israel. This includes an early warning
system, the provision of public shelters and fortifications of schools and other public buildings at
great financial cost – a projected USD 460 million between 2005 and 2011- to the Government
of Israel. The Mission is greatly concerned, however, about the lack of an early warning system
and a lack of public shelters and fortifications available to the Palestinian Israeli communities
living unrecognised and in some of the recognised villages that are within the range of rocket
and mortars being fired by Palestinian armed groups in Gaza.
21. Repression of dissent in Israel, the right of access to information and treatment of
human rights defenders
111. The Mission received reports that individuals and groups, viewed as sources of criticism
of Israel’s military operations were subjected to repression or attempted repression by the
Government of Israel. Amidst a high level of support for the Israeli military operations in Gaza
from the Israeli Jewish population, there were also widespread protests against the military
operations inside Israel. Hundreds of thousands – mainly, but not exclusively, Palestinian
citizens of Israel – protested. While in the main, the protests were permitted to take place, there
were occasions when, reportedly, protesters had difficulty in obtaining permits – particularly in
areas populated mainly by Palestinian Israelis. 715 people in Israel and in occupied East
Jerusalem were arrested during the protests. There appear to have been no arrests of counter-
protesters and 34% of those arrested were under 18 years of age. The Mission notes that a
relatively small proportion of those protesting were arrested. The Mission urges the Government
of Israel to ensure that the police authorities respect the rights of all its citizens, without
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discrimination, including freedom of expression and right to peaceful assembly, as guaranteed to
them by the ICCPR.
112. The Mission notes with concern the reported instances of physical violence against
protesters committed by members of the police, including the beating of protester and other
inappropriate conduct by the police including subjected Palestinian citizens of Israel who were
arrested to racial abuse and making sexual comments about female members of their families.
Article 10 of the ICCPR requires that those deprived of their liberty be treated with humanity
and respect for the inherent dignity of the human person.
113. Of protesters brought before the Israeli courts, it was the Palestinian Israelis who were
disproportionately held in detention pending trial. The element of discrimination and differential
treatment between Palestinian and Jewish citizens of Israel by judicial authorities, as indicated in
the reports received, is a substantial cause for concern.
114. The interviews of political activists by the Israeli General Security Services were cited as
the actions contributing most significantly to a climate of repression inside Israel. The Mission is
concerned about activists being compelled to attend interviews with Shabak, in the absence of
any legal obligation to do so, and in general at the alleged interrogation of political activists
about their political activities.
115. The Mission received reports concerning the investigation by the Government of Israel
into New Profile on allegations that it was inciting draft-dodging, a criminal offence, and reports
that the government was seeking to terminate funding from foreign governments for Breaking
the Silence, following the group’s publication of testimonies of Israeli soldiers concerning the
conduct of Israeli military forces in Gaza in December 2008 and January 2009. The Mission is
concerned that the Government of Israel’s action with regard to these organizations may have an
intimidating effect on other Israeli human rights organizations. The United Nations Declaration
on Human Rights Defenders guarantees the right “to solicit, receive and utilise resources for the
express purpose of promoting and protecting human rights and fundamental freedoms through
peaceful means”. If motivated by reaction to the organisation’s exercise of its freedom of
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expression, lobbying foreign governments to terminate funding would be contrary to the spirit of
the Declaration.
116. The Government of Israel imposed a ban on media access to Gaza following 5 November
2008. Further, access was denied to human rights organizations and the ban continues for some
international and Israeli organizations. The Mission can find no justifiable reason for this denial
of access. The presence of journalists and international human rights monitors aides the
investigation and wide public reporting of the conduct of the parties to the conflict and their
presence can inhibit misconduct. The Mission observes that Israel, in its actions against political
activists, NGOs and the media, has attempted to reduce public scrutiny of its conduct both during
its military operations in Gaza and the consequences that these operations had for the residents of
Gaza, possibly seeking to prevent investigation and public reporting thereon.
a.
Accountability
22. Proceedings carried out or being carried out and responses by Israel to allegations of
violations by security forces against Palestinians (Chapter XXV)
117. Investigations and, if appropriate, prosecutions of those suspected of serious violations
are necessary steps if respect for human rights and humanitarian law is to be ensured and to
prevent the development of a climate of impunity. States have a duty under international law to
investigate allegations of violations.
118. The Mission reviewed public information and reports from the Government of Israel
concerning actions taken to discharge its obligation to investigate alleged violations. It
addressed to Israel a number of questions on this issue, but it did not receive a reply.
119. In response to allegations of serious violations of human rights law and international
humanitarian law, the Military Advocate General ordered some criminal investigations that were
closed two weeks later concluding that allegations “were based on hearsay”. The Israeli armed
forces also released the results of five special investigations carried out by high ranking military
officers, which concluded that “throughout the fighting in Gaza, the IDF operated in accordance
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with international law”, but the investigations reportedly revealed a very small number of errors.
On 30 July 2009 the media reported that the Military Advocate General had ordered the Military
Police to launch criminal investigations into 14 cases out or nearly 100 complaints of criminal
conduct by soldiers. No details were offered.
120. The Mission reviewed the Israeli internal system of investigation and prosecution
according to its national legislation and in the light of practice. The system comprises: a)
disciplinary proceedings; b) operational debriefings (also known as "operational
investigations,"); c) special investigations, performed by a senior officer at the request of the
chief of staff; and d) Military Police investigations, carried out by the Criminal Investigation
Division of the Military Police. At the heart of the system lays the so-called “operational
debriefing”. The debriefings are reviews of incidents and operations conducted by soldiers from
the same unit or line of command together with a superior officer. They are meant to serve
operational purposes.
121. International human rights law and humanitarian law require States to investigate and, if
appropriate, prosecute allegations of serious violations by military personnel. International law
has also established that such investigations should comply with standards of impartiality,
independence, promptness and effectiveness. The Mission holds that the Israeli system of
investigation does not comply with all those principles. In relation to the “operational
debriefing” used by the Israeli armed forces as an investigative tool, the Mission holds the view
that a tool designed for the review of performance and to learn lessons can hardly be an effective
and impartial investigation mechanism that should be instituted after every military operation
where allegations of serious violations have been made. It does not comply with internationally-
recognised principles of impartiality and promptness in investigations. The fact that proper
criminal investigations can only start after the “operational debriefing” is over is a major flaw in
the Israel system of investigation.
122. The Mission concludes that there are serious doubts about the willingness of Israel to
carry out genuine investigations in an impartial, independent, prompt and effective way as
required by international law. The Mission is also of the view that the Israeli system overall
presents inherently discriminatory features that make the pursuit of justice for Palestinian victims
very difficult.
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23. Proceedings carried out or being carried out by Palestinian authorities (Chapter XXVI)
(a) Proceedings related to actions in the Gaza Strip
123. The Mission found no evidence of any system of public monitoring or accountability for
serious violations of international humanitarian law and human rights law set by the Gaza
authorities. The Mission is concerned with the consistent disregard of international humanitarian
law with which armed groups in the Gaza Strip conduct their armed activities, through rocket
and mortar fire, directed against Israel. Despite some media reports, the Mission remains
unconvinced that any genuine and effective initiatives have been taken by the authorities to
address the serious issues of violation of IHL in the conduct of armed activities by militant
groups in the Gaza Strip.
124. Notwithstanding statements by and any action that the Gaza authorities may have taken,
and of which the Mission is unaware, the Mission also considers that allegations of killings,
torture and mistreatment within the Gaza Strip have gone largely without investigation.
(b) Proceedings related to actions in the West Bank
125. With regard to relevant violations identified in the West Bank, with few exceptions, it
appears that there has been a degree of tolerance towards human rights violations against
political opponents, which has resulted in a lack of accountability for such actions. The Ministry
of Interior has also ignored the High Court’s decisions to release a number of detainees or to
reopen some associations closed by the administration.
126. In the circumstances, the Mission is unable to consider the measures taken by the
Palestinian Authority as significant for a meaningful accountability of those who have
committed serious violations of international law and believes that the responsibility to protect
the rights of the people inherent in the authority assumed by the PA must be fulfilled with greater
commitment
24. Universal jurisdiction
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127. In the context of increasing unwillingness on the part of Israel to open criminal
investigations that comply with international standards the Mission supports the reliance on
universal jurisdiction as an avenue for States to investigate violations of the grave breach
provisions of the Geneva Conventions of 1949, prevent impunity and promote international
accountability (Chapter XXVIII).
25. Reparations
128. International law also establishes that whenever a violation of an international obligation
occur an obligation to provide reparation arises. It is the view of the Mission that the current
constitutional structure and legislation in Israel leaves very limited room, if any, for Palestinians
to seek compensation. It is necessary that the international community provides for an additional
or alternative mechanism of compensation for damage or loss incurred by Palestinians civilians
during the military operations (Chapter XXIX).
E.
Conclusions and recommendations
129. The Mission draws general conclusions on the issues investigated in Chapter XXIX,
which also includes a summary of its legal findings.
130. The Mission then makes recommendations to a number of United Nations bodies, Israel,
responsible Palestinian authorities and the international community, in the areas of: (i)
Accountability for serious violations of International Humanitarian Law; (b) Reparations; (c)
Serious violations of human rights law; (d) The blockade and reconstruction; (e) The use of
weapons and military procedures; (f) The protection of human rights organizations and defenders
; (g) Follow up to the Mission’s recommendations. The recommendations are detailed in Chapter
XXX.
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PART ONE
INTRODUCTION
131. On 3 April 2009, the President of the Human Rights Council established the United
Nations Fact Finding Mission on the Gaza Conflict with the mandate “to investigate all
violations of international human rights law and international humanitarian law that might have
been committed at any time in the context of the military operations that were conducted in Gaza
during the period from 27 December 2008 and 18 January 2009, whether before, during or
after.” The appointment of the Mission followed the adoption on 12 January 2009 of resolution
S-9/1 on the grave violations of human rights in the Occupied Palestinian Territory, particularly
due to the recent Israeli military attacks against the occupied Gaza Strip, by the United Nations
Human Rights Council at the end of its ninth special session.
132. The President appointed Justice Richard Goldstone, former judge of the Constitutional
Court of South Africa and former Prosecutor of the International Criminal Tribunals for the
former Yugoslavia and Rwanda, to head the Mission. The other three appointed members were:
Professor Christine Chinkin, Professor of International Law at the London School of Economics
and Political Science, who was a member of the high-level fact-finding mission to Beit Hanoun
(2008); Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan and former Special
Representative of the Secretary-General on the situation of human rights defenders, who was a
member of the International Commission of Inquiry on Darfur (2004); and Colonel Desmond
Travers, a former Officer in Ireland’s Defence Forces and member of the Board of Directors of
the Institute for International Criminal Investigations.
133. As is usual practice, the Office of the United Nations High Commissioner for Human
Rights (OHCHR) established a secretariat to support the Mission.
134. Between the adoption of resolution S-9/1 in January and the establishment of the Mission
at the beginning of April, a broad cross section of actors, including domestic and international
non-governmental organizations (NGOs) and United Nations agencies and bodies, had already
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conducted numerous investigations and produced reports on the military operations in Gaza, all
of which were taken into account by the Mission in its work of fact-finding and analysis.
135. Bearing in mind that the resolution of the Council had called for the urgent dispatch of
the Mission and given the 11-week delay in its establishment, the Mission agreed to be bound by
a short time frame (about three months) to complete its work and report to the Council at the
earliest opportunity.
136. The Mission interpreted the mandate as requiring it to place the civilian population of the
region at the centre of its concerns regarding the violations of international law. Accordingly, the
Mission has made victims its first priority and it will draw attention to their plight in the context
of the events under investigation. The members of the Mission hope that their situation will not
be neglected by any political agenda for the region.
137. The Mission considered it crucial for the implementation of its mandate to meet with the
widest possible range of stakeholders relevant to the facts under inquiry. During the three months
of its work in Geneva, Gaza, Amman and elsewhere, the Mission met representatives of civil
society, including domestic and international NGOs; women’s organizations; bar associations;
military analysts; medical doctors; mental health experts; representatives of the business/private
sector, including agriculture and fishery; representatives of associations of persons with
disabilities; journalists and other representatives of domestic and international media outlets;
representatives of United Nations organs and bodies as well as other international organizations:
the Secretary-General of the United Nations, the United Nations High Commissioner for Human
Rights; the Commissioner-General of the United Nations Relief and Works Agency for Palestine
Refugees in the Near East (UNRWA), the Special Coordinator for the Middle East Peace
Process, the Head of the United Nations Board of Inquiry into incidents in Gaza; diplomatic
representatives of Member States of the United Nations in Geneva and in the Occupied
Palestinian Territory; members of the Palestinian Legislative Council from both Gaza and the
West Bank; ministers and officials of the Palestinian Authority; senior members of the Gaza
authorities;1 former Government and military officials of the Government of Israel (see annex I).
1 The term “Gaza authorities” is used to refer to the de facto Hamas-led authorities established in Gaza since June
2007. See chapter II for details.
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138. The Mission convened for the first time in Geneva between 4 and 8 May 2009, when it
established its methods of work and a three-month programme of activities. It also had initial
briefings and consultations with a wide range of stakeholders. The Mission met the diplomatic
community in Geneva, including the President of the Human Rights Council, members of the
Council and sponsors of resolution S-9/1.
139. Additionally, the Mission met in Geneva on 20 May, on 4 and 5 July, and between 1 and
4 August 2009. The Mission conducted three field visits: two to the Gaza Strip between 30 May
and 6 June, and between 25 June and 1 July 2009; and one visit to Amman on 2 and 3 July 2009.
Several staff of the Mission’s secretariat were present in Gaza from 22 May to 4 July 2009.
140. On 7 May, notes verbales were sent to all United Nations organs and bodies and Member
States of the United Nations. Egypt, Lebanon, Romania, the United Nations Children’s Fund
(UNICEF) on behalf of the 1612 Working Group on Grave Violations against Children
established for Israel and the Occupied Palestinian Territory,2 the World Health Organization
(WHO), and the United Nations Population Fund (UNFPA) replied to the notes verbales.
Documentation was also made available by other specialized agencies and other organizations in
the United Nations system, including the Food and Agriculture Organization of the United
Nations (FAO), the United Nations Conference on Trade and Development (UNCTAD), the
United Nations Development Programme (UNDP), UNRWA, and the Operational Satellite
Applications Programme (UNOSAT) of the United Nations Institute for Training and Research
(UNITAR). On 8 June 2009, the Mission issued a call for submissions inviting all interested
persons and organizations to submit relevant information and documentation to assist in the
implementation of its mandate. In response, the Mission received 31 submissions from
individuals and organizations. Throughout its work, the Mission received or had access to a
variety of documents from multiple sources (see chap. I).
141. Public hearings were held in Gaza on 28 and 29 June and in Geneva on 6 and 7 July
2009.
2 This Working Group was set up following the adoption by the United Nations Security Council of resolution 1612
/2005) establishing a monitoring and reporting mechanism to ensure the protection of children affected by armed
conflict.
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142. Upon appointment on 3 April 2009, the Head of the Mission held a press conference in
Geneva together with the President of the Human Rights Council. The Mission issued a press
release on 8 May, at the end of its first official meeting, and on 29 May, before travelling to
Gaza. Additionally, the Mission held press conferences in Gaza on 4 June, at the end of its first
visit, and on 7 July 2009, at the end of the public hearings in Geneva. The Head of the Mission
was interviewed several times by the international media3.
Cooperation with the parties
143. Since its inception, the Mission has requested the cooperation of all relevant authorities
to enable it to visit and meet victims in Gaza, the West Bank and Israel.
144. Immediately upon appointment, the Head of the Mission sought to consult the Permanent
Representative of Israel to the United Nations Office at Geneva, who unfortunately declined to
meet him. Following an exchange of letters between 3 and 7 April, the Permanent Representative
of Israel informed the Head of the Mission that his Government would not be able to cooperate
with the Mission. On 29 April, an additional invitation to the Permanent Representative of Israel
to meet the Mission was also unsuccessful. On 4 May, the Mission wrote to the Prime Minister
of Israel, reiterating its request for cooperation, in particular by providing access to Gaza, the
West Bank, including East Jerusalem, and Israel. During a meeting on 6 May 2009 with the
President of Israel, the United Nations Secretary-General referred to and supported the Mission’s
request for cooperation from the Government of Israel. In a letter dated 20 May 2009, the
Mission attempted again to obtain the cooperation of the Israeli Government, especially in view
of its planned visit to the Gaza Strip. In view of the refusal of cooperation from the Government
of Israel, in order to be able to fulfil the mandate entrusted by the Human Rights Council within
the aforementioned time frame, the Mission sought and obtained the assistance of the
Government of Egypt to enable it to enter Gaza through the Rafah crossing. The Mission had
additional written exchanges with the Permanent Representative of Israel in Geneva between 2
and 17 July 2099. (See annex II.)
3 The webpage of the Mission can be found at:
http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm.
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145. Upon appointment, the Head of the Mission consulted the Permanent Observer of
Palestine to the United Nations Office at Geneva, who promptly extended the cooperation of the
Palestinian Authority to the Mission. The Mission has remained in contact with the Permanent
Observer Mission of Palestine, and has enjoyed the support and cooperation of the Palestinian
Authority. Due to the lack of cooperation from the Israeli Government, the Mission was unable
to meet members of the Palestinian Authority in the West Bank. The Mission did, however, meet
officials of the Palestinian Authority, including a cabinet minister, in Amman. A Palestinian
minister was prevented from travelling to meet the Mission in Amman (see chap. I). During its
visits to the Gaza Strip, the Mission held meetings with senior members of the Gaza authorities
and they extended their full cooperation and support to the Mission.
Protection of persons cooperating with the Mission
146. In the implementation of its mandate the Mission has called for the protections that are
required under the Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms, better known as the Declaration on Human Rights Defenders, to be
accorded to all who gave testimony at the public hearings. The Mission also was guided by
Commission on Human Rights resolution 2005/9 which “urges Governments to refrain from all
acts of intimidation or reprisal against (a) those who seek to cooperate or have cooperated with
representatives of United Nations human rights bodies, or who have provided testimony or
information to them”.
147. Subsequent to the public hearings in Geneva, the Mission was informed that a Palestinian
participant, Mr. Muhammad Srour, had been detained by Israeli security forces when returning
to the West Bank and became concerned that his detention may have been a consequence of his
appearance before the Mission. The Mission wrote to the Permanent Representative of Israel in
Geneva expressing its concern. In response, the Permanent Representative informed the Mission
that the detention of the person concerned was unrelated to his appearance at the public hearing.
Mr. Srour was subsequently released on bail. The Mission is in contact with him and continues
to monitor developments.
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148. The Mission is also concerned about anonymous calls and messages received on private
phone numbers and e-mail addresses by some of those who provided information to it or assisted
in its work in the Gaza Strip. The contents seemed to imply that the originators of these
anonymous calls and messages regarded those who cooperated with the Mission as potentially
associated with armed groups. One of the recipients conveyed to the Mission apprehensions
about personal safety and a feeling of intimidation. The Mission also wishes to record that there
are others who have declined to appear before it or to provide information or, having cooperated
with the Mission, have asked that their names should not be disclosed, for fear of reprisal.
Acknowledgments
149. The Mission is deeply grateful to the numerous Palestinians and Israelis, especially
victims and witnesses of violations, who have shared with it their stories and views. It is equally
grateful to the many Palestinian and Israeli civil society and NGOs, and to the Palestinian
Independent Commission for Human Rights. They are at the forefront of the protection and
promotion of human rights in the region and carry out their work with courage, professionalism
and independence in very difficult circumstances. The Mission is also grateful to all the domestic
and international NGOs that have supported its mandate and have provided a vast amount of
relevant and well-documented information. Without the support and the assistance of United
Nations agencies, programmes and other bodies, and particularly of the United Nations staff in
Gaza, the Mission would have not been able to complete its work. Heartfelt thanks go to all of
them. The Mission wishes to especially acknowledge the invaluable support received by the
dedicated staff of UNRWA. The Mission expresses its gratitude to the United Nations security
personnel and interpreters, who have professionally and sensitively accomplished their difficult
tasks. In addition to the secretariat of the Mission appointed by OHCHR, a multinational team
with a broad range of professional experience, the gratitude of the Mission goes also to the staff
of OHCHR in Geneva, the Occupied Palestinian Territory and New York. A particular mention
goes to all those who assisted with the daunting task of organizing at very short notice the public
hearings in Gaza and in Geneva. The Mission wishes to formally thank the Government of Egypt
and in particular the Permanent Mission of Egypt in Geneva. The Mission wishes to formally
thank the Governments of Jordan and of Switzerland for facilitating the issuance of entry visas at
short notice. The Mission also wishes to acknowledge the continued support received from the
United Nations Secretary-General.
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150. Finally, the Mission wishes to thank the people of Gaza for their warm welcome, their
humanity and their hospitality in spite of such difficult and painful circumstances.
I.
METHODOLOGY
A.
Mandate and terms of reference
151. In his letter appointing the members of the Mission, the President of the Council
entrusted the Mission with the following mandate: “to investigate all violations of international
human rights law and international humanitarian law that might have been committed at any
time in the context of the military operations that were conducted in Gaza during the period from
27 December 2008 and 18 January 2009, whether before, during or after.”
152. To implement its mandate, the Mission determined that it was required to consider any
actions by all parties that might have constituted violations of international human rights law or
international humanitarian law. The mandate also required it to review related actions in the
entire Occupied Palestinian Territory and Israel.
153. With regard to temporal scope, the Mission’s broad mandate includes violations before,
during and after the military operations that were conducted in Gaza between 27 December 2008
and 18 January 2009. The Mission considered that, while the Gaza events must be seen in the
context of the overall conflict and situation in the Occupied Palestinian Territory, in view of the
limited time and resources available, it would be beyond its abilities to focus on conduct or
actions that took place long before the military operation of December–January. The Mission
therefore decided to focus primarily on events, actions or circumstances occurring since 19 June
2008, when a ceasefire was agreed between the Government of Israel and Hamas. The Mission
has also taken into consideration matters occurring after the end of military operations that
constitute continuing human rights and international humanitarian law violations related to or as
a consequence of the military operation, up to 31 July 2009.
154. The Mission considered that the reference in its mandate to violations committed in the
context of the December–January military operations required it to go beyond violations that
took place directly as part of the operations. Thus violations within its mandate include those that
are linked to the December–January military operations in terms of time, objectives and targets,
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and include restrictions on human rights and fundamental freedoms relating to Israel's strategies
and actions in the context of its military operations.
155. The normative framework for the Mission has been general international law, the Charter
of the United Nations, international humanitarian law, international human rights law and
international criminal law.
B.
Methods of work
156. The Mission reviewed all allegations raised in connection with issues under its mandate.
The review included analysis of material in the public domain, including the many reports
produced after the military operations concluded, information provided to the Mission through
additional documentation and a series of meetings with experts who had been to the area or
studied matters of interest to the Mission.
157. In view of the time frame within which it had to complete its work, the Mission
necessarily had to be selective in the choice of issues and incidents for investigation. The report
does not purport to be exhaustive in documenting the very high number of relevant incidents that
occurred in the period covered by the Mission’s mandate and especially during the military
operations in Gaza. Nevertheless, the Mission considers that the report is illustrative of the main
patterns of violations. The Mission also stresses that the exclusion of issues or incidents from the
report in no way reflects on the seriousness of the relevant allegations.
158. The Mission based its work on an independent and impartial analysis of compliance by
the parties with their obligations under international human rights and humanitarian law in the
context of the recent conflict in Gaza, and on international investigative standards developed by
the United Nations.
159. The Mission adopted an inclusive approach to receiving information and views on
matters within its mandate. Information-gathering methods included:
(a) The review of reports of international organizations, including the United Nations;
reports and other documentation, including affidavits, produced by non-governmental and civil
society organizations (Palestinian, Israeli and international); media reports; and writings of
academics and analysts on the conflict;
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(b) Interviews with victims, witnesses and other persons having relevant information. In
keeping with established human rights methodology and in order to ensure both the safety and
privacy of the interviewees and the integrity of the information provided, such interviews were
conducted in private. The Mission decided not to interview children. The Mission conducted 188
individual interviews. Most interviews were conducted in person. If the Mission was unable to
meet the relevant persons, interviews were conducted by telephone. Also in keeping with normal
practice for this type of report and to continue to protect their safety and privacy, the names of
the victims, witnesses and other sources are generally not explicitly referred to in the report and
codes are used instead. The names of individuals who publicly testified at the hearings held by
the Mission or who have explicitly agreed to be named (see below) are, however, identified;
(c) Site visits to specific locations in Gaza where incidents had occurred. The Mission
investigated 36 incidents in Gaza;
(d) The analysis of video and photographic images, including satellite imagery provided by
UNOSAT, and expert analysis of such images;
(e) The review of medical reports about injuries to victims;
(f)
The forensic analysis of weapons and ammunition remnants collected at incident sites;
(g) Meetings with a variety of interlocutors, including members of the diplomatic
community, representatives of the parties concerned, NGOs, professional associations, military
analysts, medical doctors, legal experts, scientists, United Nations staff;
(h) Invitations, through notes verbales, to United Nations Members States and United
Nations agencies, departments and bodies to provide information relating to the Mission’s
investigation requirements;
(i)
The wide circulation of a public call for written submissions from NGOs and other
organizations and individuals interested in bringing information to the attention of the Mission.
As a result, it received numerous submissions from organizations and individuals from Israel, the
Occupied Palestinian Territory and elsewhere in the world;
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(j)
Public hearings in Gaza and in Geneva4 to hear: (i) victims and witnesses of violations;
and (ii) individuals with specialized knowledge and expertise on the context and impact of the
hostilities.
160. The Mission reviewed more than 300 reports, submissions and other documentation
either researched of its own motion, received in reply to its call for submissions and notes
verbales or provided during meetings or otherwise, amounting to more than 10,000 pages, over
30 videos and 1,200 photographs.
161. The methods adopted to gather and verify information and reach conclusions were for the
most part guided by best practice methodology developed in the context of United Nations
investigations. In the case of Israel and the West Bank, adjustments were required in view of the
Mission’s inability to access those areas due to lack of cooperation from Israel.
162. The Mission’s preferred option would have been to visit all areas covered by its mandate
and undertake on-site investigations in all. The Government of Israel, however, refused to
cooperate with the Mission at three levels: (a) it refused to meet the Mission and to provide
access to Government officials, including military, and documentation; (b) it precluded the
Mission from travelling to Israel in order to meet with Israeli victims, witnesses, members of
civil society and NGOs; and (c) it prevented the Mission from travelling to the West Bank,
including East Jerusalem, to meet members of the Palestinian Authority and Palestinian victims,
witnesses, non-governmental or civil society organizations living or located in the West Bank.
163. Accordingly, the Mission conducted field visits, including investigations of incident sites,
in the Gaza Strip. This allowed the Mission to observe first-hand the situation on the ground, and
speak to many witnesses and other relevant persons. The Mission considered this particularly
important to form an understanding of the situation, the context, impact and consequences of the
conflict on people, and to assess violations of international law.
164. The Mission gathered first-hand information with regard to the situation in Israel and in
the West Bank by conducting telephone interviewees with victims, community representatives,
local authorities, members of NGOs and experts; by hearing testimonies from victims, witnesses
4 The public hearings are webcast by the United Nations and can be viewed by visiting the webcast archive at:
http://www.un.org/webcast/unhrc/archive.asp?go=090628.
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and experts from Israel and from the West Bank at the public hearings in Geneva; and by holding
meetings and private interviews both in Amman and in Geneva.
165. The Mission’s efforts in this regard were partially thwarted because of restrictions on the
freedom of movement of some of the people that the Mission wished to interview. The Mission
was not able to meet as planned the Palestinian Minister of Justice, Dr. Ali al-Khashan, in
Amman, as he was not allowed by Israel to leave the West Bank. The Mission was also unable to
meet Ms. Khalida Jarrar, a member of the Palestinian Legislative Council, who is subject to a
travel ban by Israel (see chap. XXII). It held a teleconference with her. A Palestinian witness at
the Geneva public hearings, Mr. Shawan Jabarin, had to be heard by videoconference as he is
also subject to a travel ban by Israel.
A note on the public hearings
166. The purpose of the public hearings, which were broadcast live, was to enable victims,
witnesses and experts from all sides to the conflict to speak directly to as many people as
possible in the region as well as in the international community. The Mission is of the view that
no written word can replace the voice of victims. While not all issues and incidents under
investigation by the Mission were addressed during the hearings, the 38 public testimonies
covered a wide range of relevant facts as well as legal and military matters. The Mission had
initially intended to hold hearings in Gaza, Israel and the West Bank. However, denial of access
to Israel and the West Bank resulted in the decision to hold hearings of participants from Israel
and the West Bank in Geneva.
167. Participants in the hearings were identified in the course of the Mission’s investigations,
and had either first-hand experience or information or specialized knowledge of the issues under
investigation and analysis. In keeping with the objectives of the hearings, the Mission gave
priority to the participation of victims and people from the affected communities. Participants
took part in the hearings on a voluntary basis. Some individuals declined to participate for fear of
reprisal. The Mission received expressions of gratitude from participants, as well as members of
the affected communities, for having provided an opportunity to speak publicly of their
experiences.
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C.
Assessment of information
168. In establishing its findings, the Mission sought to rely primarily and whenever possible
on information it gathered first-hand, including through on-site observations, interviews and
meetings with relevant persons. Information produced by others, including reports, affidavits and
media reports, was used primarily as corroboration.
169. The section of the report on the Gaza Strip is based on first-hand information gathered
and verified by the Mission. To assess the situation in Israel and in the West Bank, the Mission
had to make comparatively greater use of information produced by others for the reasons
explained above. These sections too, however, include first-hand information directly gathered
and verified by the Mission.
170. The Mission met or spoke with witnesses, listened to what they had to say and questioned
them wherever necessary. Taking into account the demeanour of witnesses, the plausibility of
their accounts and the consistency of these accounts with the circumstances observed by it and
with other testimonies, the Mission was able to determine the credibility and reliability of those
people it heard. Regarding the large amount of documentary information the Mission received or
had access to as documents in the public domain, it tried as far as possible to speak with the
authors of the documents in order to ascertain the methodologies used and to clarify any doubts
or problems.
171. The final conclusions on the reliability of the information received were made taking all
of these matters into consideration, cross-referencing the relevant material and information, and
assessing whether, in all the circumstances, there was sufficient information of a credible and
reliable nature for the Mission to make a finding in fact.
172. On the basis set out above, the Mission has, to the best of its ability, determined what
facts have been established. In many cases it has found that acts entailing individual criminal
responsibility have been committed. In all of these cases the Mission has found that there is
sufficient information to establish the objective elements of the crimes in question. In almost all
of the cases the Mission has also been able to determine whether or not it appears that the acts in
question were done deliberately or recklessly or in the knowledge that the consequence that
resulted would result in the ordinary course of events, that is, the Mission has referred in many
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cases to the relevant fault element (mens rea). The Mission fully appreciates the importance of
the presumption of innocence: the findings in the report do not subvert the operation of that
principle. The findings do not attempt to identify the individuals responsible for the commission
of offences nor do they pretend to reach the standard of proof applicable in criminal trials.
D.
Consultation with the parties
173. The Mission received documentation related to its mandate from the Palestinian
Authority. During its visits in Gaza, the Mission was provided with significant material and
documentation by the Gaza authorities. On 29 July, it received, through UN Watch, a paper5 on
the military operations in Gaza that sets out the Government of Israel’s position on many issues
investigated by the Mission.
174. During its meetings in Gaza, Amman and Geneva, the Mission discussed matters within
its mandate with Palestinian counterparts. While no cooperation was received from the
Government of Israel, the Mission met a number of Israeli citizens formerly in senior
Government positions.
175. In order to provide the parties concerned with an opportunity to submit additional
relevant information and express their position and respond to allegations, the Mission also
submitted comprehensive lists of questions to the Government of Israel, the Palestinian
Authority and the Gaza authorities in advance of completing its analysis and findings. The
Mission received replies from the Palestinian Authority and the Gaza authorities but not from
Israel.
II.
CONTEXT
Introduction
176. The Mission is of the view that the events that it was mandated to investigate should not
be considered in isolation. They are part of a broader context, and are deeply rooted in the many
5 “The operation in Gaza: Factual and legal aspects”, July 2009, published on the website of the Israeli Ministry of
Foreign Affairs, available at http://www.mfa.gov.il/MFA/Terrorism-
+Obstacle+to+Peace/Terrorism+and+Islamic+Fundamentalism-/Operation_in_Gaza-
Factual_and_Legal_Aspects.htm
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years of Israeli occupation of the Palestinian Territory and in the political and violent
confrontation that have characterized the history of the region. A review of the historical,
political and military developments between the Six-Day War in 1967 and the announcement of
the “period of calm” (Tahdiyah) in June 2008,6 and of Israeli policies towards the Occupied
Palestinian Territory is necessary to consider and understand the events that fall more directly
within the scope of the Mission’s mandate.
A.
Historical context
177. The West Bank, including East Jerusalem, and the Gaza Strip were captured by Israel
following the Six-Day War of June 1967. The two non-contiguous areas had been administered
by Jordan and Egypt, respectively, since the establishment of the “Green Line” along the 1949
Armistice demarcation, separating the newly founded State of Israel and its neighbours. After
1967, the two areas were administered directly by military commanders until 1981 and since
then through a “Civil Administration” established by the Israeli armed forces. “Military orders”
were used to rule the civil affairs of the Palestinian population superimposing and often revoking
pre-existing Jordanian laws in the West Bank and Egyptian laws in the Gaza Strip. East
Jerusalem was annexed to the Israeli municipality of the city and in 1980 the Knesset passed a
law which declared that "Jerusalem, complete and united, is the capital of Israel”. With Security
Council resolution 478 (1980), the United Nations declared this law “null and void”,
condemning any attempt to “alter the character and status of Jerusalem”.7 No member of the
United Nations, apart from Israel, recognizes the annexation of East Jerusalem.
178. After the Likud party won the 1977 Israeli elections, the establishment of settlements
within the occupied territories of the West Bank and the Gaza Strip dramatically accelerated, and
the expropriation of Palestinian lands and the construction of settlements have continued
unabated to this day. Many years of growing tension and violence concerning the unresolved
status of the Palestinian territory occupied by Israel ensued. In 1987 a widespread popular
uprising – the intifada – was forcefully repressed by the Israeli security forces but lasted until
6 Due to obvious space limitations, the historical context does not make reference to the numerous important events
that took place during this period (such as the 1973 War, the Camp David Accords, the peace treaty with Jordan, the
2006 Lebanon War and many others).
7 Adopted by 14 votes to none, with 1 abstention (United States of America).
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1993, when the leadership of the Palestine Liberation Organization (PLO) and the Government
of Israel agreed to recognize each other and signed the “Declaration of Principles on Interim
Self-Government Arrangements” also known as the “Oslo I Accord.”8
179. In 1994 the Palestinian Authority was established following the Oslo I Accord and in
1995 “the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip”, also
known as “Oslo II,”9 detailed practical steps to be implemented by the parties in view of the
negotiations on the final status of the territory. The assassination of Israeli Prime Minister
Yitzhak Rabin by an Israeli extremist in 1995 dealt a lethal blow to the peace process.
Successive Israeli Governments and the Palestinian political leadership failed to reach an
agreement on the final status at the United States-sponsored Camp David summit in 2000 and
during direct talks in Taba (Egypt) in 2001.
180. A second popular uprising erupted in September 2000, after the then opposition leader
Ariel Sharon conducted a controversial visit to the Temple Mount/al-Haram al-Sharif in
Jerusalem.10 This second intifada set off an unprecedented cycle of violence.
181. According to independent sources, while the Israeli-Palestinian conflict claimed the lives
of 1,549 Palestinians and 421 Israelis between 1987 and 2000,11 between September 2000 and
December 2008, 5,500 Palestinians were killed (593 as result of intra-Palestinian violence) as
well as 1,062 Israelis and 64 foreigners.12
8 The Agreement contained a specific provision for the establishment of a “strong police force” to “guarantee public
order and internal security for the Palestinians of the West Bank and the Gaza Strip”. See
http://www.reliefweb.int/rw/rwb.nsf/db900SID/MHII-62DANP?OpenDocument.
9 The Agreement defined three areas of jurisdiction in Gaza and the West Bank: area “A”, in which Palestinians
would have full administrative and security responsibilities; area “B”, in which Palestinians would have
administrative responsibilities, but Israelis would retain security control; and area “C”, where Israelis would
maintain administrative and security responsibilities. See http://www.reliefweb.int/rw/rwb.nsf/db900SID/MHII-
62DAP5?OpenDocument.
10 Situated at the heart of the Old City in East Jerusalem, the site is of religious significance to both Muslims and
Jews. The Temple Mount/al-Haram al-Sharif (the Noble Sanctuary) is the location of al-Aqsa and the Dome of the
Rock mosques, the third most sacred place in Islam. It is also believed to be the location of the two ancient Jewish
temples. The southern section of its western external perimeter is what is known as the Western Wall. Haram al-
Sharif is administered by an Islamic trust (Waqf) and religious rituals performed there by non-Muslims are
forbidden.
11 See B’Tselem statistics (“Fatalities in the first Intifada”), available at:
http://www.btselem.org/English/Statistics/First_Intifada_Tables.asp.
12 See B’Tselem statistics (“Fatalities”), available at: http://www.btselem.org/English/Statistics/Casualties.asp
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182. According to Israel’s Ministry of Foreign Affairs, 154 suicide bomb attacks against
Israeli civilians and military personnel took place between 1993 and 2007. They killed 542
individuals, with a peak in 2002 of 220 individuals killed in 55 suicide attacks.13 The last
recorded suicide attack took place in February 2008 in the Israeli city of Dimona.14
183. The firing of rockets and mortars from Gaza into Israel began in 2001.15 Israeli sources
report that as many as 3,455 rockets and 3,742 mortar shells were fired into Israel from Gaza
until mid-June 2008.16
184. After his election as Prime Minister in 2001, the Likud leader Ariel Sharon discontinued
any direct contacts with the Palestinian leadership, in effect putting an end to talks on the final
status.
185. In June 2002, the beginning of the construction of the separation Wall, which encroached
on Palestinian land to encompass most Israeli settlement areas in the West Bank as well as East
Jerusalem, left almost half a million Palestinians on the western side of the divide, cutting
historical, social, cultural and economic ties with the rest of the Palestinians in the West Bank.17
In 2004, the International Court of Justice issued an advisory opinion on the legality of the Wall
being built by Israel, at the request of the United Nations General Assembly. The Court stated
that Israel must cease construction of the barrier, dismantle the parts of the barrier that were built
inside the West Bank, revoke the orders issued relating to its construction and compensate the
13 See website of the Ministry of Foreign Affairs (“Suicide and other bombing attacks in Israel since the Declaration
of Principles (Sept. 1993)”), available at: http://www.mfa.gov.il/MFA/Terrorism-
%20Obstacle%20to%20Peace/Palestinian%20terror%20since%202000/Suicide%20and%20Other%20Bombing%20
Attacks%20in%20Israel%20Since
14 BBC News, “Israeli killed in suicide bombing”, 4 February 2008, available at:
http://news.bbc.co.uk/2/hi/middle_east/7225775.stm
15 “The operation in Gaza…” states that the firing of rockets and mortars from Gaza started in 2000. The same
sources quoted in the report, however, put the beginning of the firing of rockets and mortars in 2001. The report
states that between 2000 and 2008 “Israel was bombarded by some 12,000 rockets and mortar shells between 2000
and 2008, including nearly 3,000 rockets and mortar shells in 2008 alone.”
16 Intelligence and Terrorism Information Center at the Israel Intelligence Heritage & Commemoration Center,
“Rocket threat from the Gaza Strip, 2000-2007”, December 2007, available at: http://www.terrorism-
info.org.il/malam_multimedia/English/eng_n/html/rocket_threat_e.htm; and “Summary of rocket fire and mortar
shelling in 2008”, January 2009, available at: http://www.terrorism-
info.org.il/malam_multimedia/English/eng_n/pdf/ipc_e007.pdf
17 See B’Tselem statistics (Separation barrier statistics), available at:
http://www.btselem.org/English/Separation_Barrier/Statistics.asp
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Palestinians who suffered losses as a result of the barrier.18 Israel disregarded the views of the
Court and construction of the Wall continued. In 2004 and 2005, the Israeli Supreme Court,
sitting as the High Court of Justice (see sect. D below), ruled that some parts of the route of the
Wall violated the principle of "proportionality" in both Israeli and international law, causing
harm to an "occupied population” and that the construction of the structure should be done in a
way to lessen the prejudicial impact on the rights of the resident Palestinians. The Israeli Court
ordered the rerouting of different portions of the Wall,19 but considered the structure legal in
principle.20
186. In 2002, the so-called Quartet (the United States, the European Union, the Russian
Federation and the United Nations) proposed a plan to resolve the Israeli-Palestinian conflict.
The plan came to be known as the “road map to peace.”21 The road map envisaged that the
Palestinians would engage in democratic reforms and renounce violent means and that Israel
would accept a Palestinian Government and cease settlement activities. Fulfilment of the road
map’s commitments would lead to negotiations on the final status. The road map remains
unimplemented. The same year, the League of Arab States adopted a proposal that Saudi Arabia
presented at the Beirut Summit in which its members pledged to establish normal relations with
Israel in the context of a comprehensive peace that would establish a Palestinian State within the
border of 1967.22
187. On 6 June 2004, the Israeli Cabinet adopted a “disengagement plan” providing for the
unilateral removal from the Gaza Strip of Israeli security forces and Israeli civilians living in
settlements. The plan was endorsed by the Knesset on 26 October of the same year. With the
evacuation of all Israeli residents and associated security personnel from the Gaza Strip
18 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9
July 2004, I.C.J. Reports 2004.
19 Many of these rulings have had only a marginal impact on the Palestinian population.
20 The Court opened its deliberation by stating that “since 1967, Israel has been holding the areas of Judea and
Samaria […] in belligerent occupation”, see Beit Sourik Village Council v. The Government of Israel and
Commander of the IDF Forces in the West Bank, case No. 2056/04, Judgement of 30 June 2004 and Mara’abe et al.
v. The Prime Minister of Israel et al., case No. 7957/04, Judgement of 15
September 2005.
21 “A performance-based road map to a permanent two-State solution to the Israeli-Palestinian conflict”, available
at: http://www.un.org/news/dh/mideast/roadmap122002.pdf
22 Available at: http://www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/5a7229b652beb9c5c1256b8a0054b62e
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completed on 12 September 2005, Israel declared that “there will be no basis for claiming that
the Gaza Strip is occupied territory” (on the continued occupation, see chapter IV). Under the
disengagement plan, however, the Israeli armed forces continued to maintain control over Gaza’s
borders, coastline and airspace, and Israel reserved “its inherent right of self-defence, both
preventive and reactive, including where necessary the use of force, in respect of threats
emanating from the Gaza Strip.” Israel removed both settlements and military bases protecting
the settlers from the Gaza Strip, redeploying on Gaza’s southern border and repositioning its
forces to other areas just outside the Gaza Strip. In addition to controlling the borders, coastline
and airspace, after the implementation of the disengagement plan, Israel continued to control
Gaza’s telecommunications, water, electricity and sewage networks, as well as the population
registry, and the flow of people and goods into and out of the territory while the inhabitants of
Gaza continued to rely on the Israeli currency.23
188. After years of disassociation from the Oslo process, Hamas changed its position about the
legitimacy of the Palestinian Authority and decided to participate in the elections of January
2006. The List of Change and Reform, of which Hamas represented the main component, won
the elections for the Palestinian Legislative Council and formed a Government. Shortly
thereafter, the international community redirected international aid from the Palestinian
Authority to international organizations and humanitarian agencies, isolating the new Palestinian
executive in a stated effort to put pressure on it to accept the so-called Quartet Principles. The
Quartet had already announced that, to be recognized by the international community, any
Palestinian Government should adhere to three “Principles”: (i) recognition of the State of Israel,
(ii) recognition of previous agreements and (iii) renunciation of violence.24 Israel also imposed
economic sanctions on the Hamas-led Palestinian Authority Government, including by
withholding tax revenues it collected on imports and introducing additional restrictions on the
23 See “Disengagement Plan - General Outline”, 15 April 2004, available at:
http://www.pmo.gov.il/PMOEng/Archive/Press+Releases/2004/Disengagement+Plan/Disengagement+Plan.htm;
and “Overall concept of the Disengagement Plan”, 15 April 2004, available at:
http://www.pmo.gov.il/PMOEng/Archive/Press+Releases/2004/Disengagement+Plan/DisengagementPlan.htm.
24 See “Briefing to the Security Council on the situation in the Middle East”, by Ms Angela Kane, Assistant
Secretary-General for Political Affairs, 31 January 2006, available at:
http://www.unsco.org/Documents/Statements/MSCB/2008/January%2031.pdf
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movement of goods to and from the Gaza Strip. Israel declared that sanctions would be lifted
only when the new Palestinian Government would abide by the Quartet Principles.25
189. In June 2006, a squad drawn from three groups – the Popular Resistance Committees, al-
Qassam Brigades and the until then unknown Army of Islam – excavated a tunnel under the
Gaza-Israel border and attacked the military base of Kerem Shalom inside Israel, blowing up a
tank, killing two soldiers and capturing a third, Corporal Gilad Shalit. In reaction to the capture,
the Israeli Government conducted a number of targeted assassinations of alleged militants
belonging to Hamas and other groups; arrested Palestinian Authority cabinet ministers, Hamas
parliamentarians and other leaders in the West Bank; attacked key civilian infrastructure in the
Gaza Strip, such as the main power plant, the main bridge in central Gaza and Palestinian
Authority offices; tightened the economic isolation; and carried out major armed thrusts into the
Gaza Strip for the first time since August 2005.26
190. After the refusal of the politically defeated Fatah movement to cede the control of
Palestinian Authority institutions and specifically security institutions to the new Government,
armed clashes erupted between the two political groups both in the Gaza Strip and the West
Bank. In February 2007, Palestinian leaders assembled in Mecca signed an agreement sponsored
by Saudi Arabia that led to the formation of a coalition Government that was approved by the
Palestinian Legislative Council in March.27 The coalition Government was headed by Hamas and
included members of other political movements, including Fatah, as well as independents. After
only four months, violent clashes erupted again between armed and security forces loyal to Fatah
and Hamas. By 14 June 2007, Hamas forces and armed groups had seized all Palestinian
Authority security installations and government buildings in the Gaza Strip.28 The President of
25 In June 2006, Hamas subscribed to the so-called Prisoners Document, a common political platform shared by
Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine (PFLP) and the Democratic Front for
the Liberation of Palestine (DFLP). An implicit recognition of the State of Israel could be traced to the statement
that “the right to establish their independent state with al-Quds al-Sharif as its capital on all territories occupied in
1967”. See http://www.miftah.org/Display.cfm?DocId=10371&CategoryId=32.
26 See International Crisis Group, “Israel/Palestine/Lebanon: Climbing out of the abyss”, Middle East Report N°57,
25 July 2006.
27 See “Briefing to the Security Council on the situation in the Middle East”, by Mr B. Lynn Pascoe, 25 April 2007,
available at: http://www.unsco.org/Documents/Statements/MSCB/2007/April%202007.pdf
28 See International Crisis Group, “After Gaza”, Middle East Report N°68, 2 August 2007. See also Vanity Fair,
“The Gaza bombshell”, April 2008, available at: http://www.vanityfair.com/politics/features/2008/04/gaza200804
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the Palestinian Authority dismissed the Hamas-led Government (hereinafter called the Gaza
authorities), declared a state of emergency and established an emergency Government based in
the West Bank, which was largely recognized by the international community.29
191. In November 2007, the United States of America sponsored the organization of a new
comprehensive peace conference. At the Conference – held in Annapolis, Maryland, United
States of America – the Palestinian President and the Israeli Prime Minister agreed to resume
negotiations by the end of 2007. In addition, they agreed to work continuously to reach a two-
State solution by the end of 2008.
192. On 19 September 2007, the Government of Israel declared Gaza “hostile territory.”30
This was followed by the imposition of further severe reductions in the transfer of goods and
supplies of fuel and electricity to the Strip. Since then, Israel has only sporadically allowed the
opening of all the crossings into the Gaza Strip, at times completely closing them.31 (See also
chapter V.)
193. Israeli military operations in Gaza and the West Bank started well before the so-called
disengagement of 2005. “Operation Defensive Shield” in 2002 was the largest military operation
in the West Bank since the 1967 Six-Day War. It began with an incursion into Ramallah, placing
the then President of the Palestinian Authority, Yasser Arafat, under siege in his offices, and was
followed by incursions into the six largest cities in the West Bank and their surrounding
localities. During the three weeks of the military incursions in areas that were under the direct
control of the Palestinian Authority, 497 Palestinians were killed.32 The siege on the half
destroyed Ramallah Muqataa compound of President Arafat was lifted only at the end of 2004
when he was flown to Paris to undergo medical treatment. He later died there.
194. “Operation Rainbow” of 2004 targeted the Rafah area of the Gaza Strip and left about 50
Palestinians dead. “Operation Days of Penitence” was carried out between September and
29 For reactions in support of the emergency Government by the United States, the European Union and Arab States,
see “After Gaza…”.
30 “Security cabinet declares Gaza hostile territory”, 19 September 2007, and “Behind the
headlines: Israel designates Gaza a ‘hostile territory’”, 24 September 2007, available from the website of Israel’s
Ministry of Foreign Affairs at www.mfa.gov.il
31 A/HRC/7/76.
32 A/ES-10/186.
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October 2004. According to the Israeli Government, it was launched in retaliation for the firing
of rockets against the town of Sderot and Israeli settlements inside the Gaza Strip. It targeted the
towns of Beit Hanoun and Beit Lahia and the Jabaliyah refugee camp and resulted in the deaths
of more than 100 Palestinians and 5 Israelis.
195. From the disengagement until November 2006, the Israeli armed forces fired
approximately 15,000 artillery shells and conducted more than 550 air strikes into the Gaza
Strip. Israeli military attacks killed approximately 525 people in Gaza. Over the same period, at
least 1,700 rockets and mortars were fired into Israel by Palestinian militants, injuring 41
Israelis. The conflict culminated, in 2006, in the Israeli military incursions into Gaza, codenamed
“Summer Rains” and “Autumn Clouds”, the latter focusing on the north of the Strip around the
town of Beit Hanoun, where shortly after the end of the military operations in November, 19
people, of whom 18 of the same family, were killed by artillery fire in one incident.33
196. In February 2008, a rocket attack from Gaza hit the Israeli city of Ashkelon causing light
injures. The Israeli armed forced launched an operation codenamed “Hot Winter” during which
the air force conducted at least 75 air strikes on different targets within the Gaza Strip. As a
result of the military operation, 202 Palestinians and 2 Israelis were killed in Gaza.34
197. In June 2008, an informal “period of calm” (Tahdiyah) of six months was agreed through
Egypt’s mediation. (For more details, see chapter III.)
B.
Overview of Israel’s pattern of policies and conduct relevant to the Occupied
Palestinian Territory, and links between the situation in Gaza and in the West Bank
198. Since1967, Israel has built hundreds of settlements in the West Bank, including East
Jerusalem, and the Gaza Strip. Such settlements were recognized by its Ministry of Interior as
Israeli “communities” subjected to Israeli law. The above-mentioned Advisory Opinion by the
International Court of Justice advisory opinion and “a number of United Nations resolutions
have all affirmed that Israel’s practice of constructing settlements — in effect, the transfer by an
occupying Power of parts of its own civilian population into the territory it occupies —
33 A/HRC/9/26.
34 A/HRC/8/17.
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constitutes a breach of the Fourth Geneva Convention”35 (on the position of the Israeli High
Court of Justice on the applicability of the Fourth Geneva Convention to the Occupied
Palestinian Territory, see chapter IV). Sixteen settlements in the Gaza Strip and three in the
northern West Bank were dismantled in 2005 during the implementation of the so-called Israeli
disengagement plan, but the establishment of new settlements continued. In 2007, there were
more than 450,000 Israeli citizens living in 149 settlements in the West Bank, including East
Jerusalem. According to United Nations sources, almost 40 per cent of the West Bank is now
taken up by Israeli infrastructure associated with the settlements, including roads, barriers, buffer
zones and military bases. Data released by the Israeli Central Bureau of Statistics showed that
construction in these settlements has increased in 2008 by a factor of 1.8 in comparison with the
same period in 2007. The number of tenders in East Jerusalem has increased by 3,728 per cent
(1,761 housing units, compared with 46 in 2007). Until the end of the 1970s, the Government of
Israel claimed that the settlements were established on the grounds of military necessity and
security, but it has since abandoned this position.36
199. It is estimated that 33 per cent of the settlements have been built on private land owned
by Palestinians, much of it expropriated by the State of Israel on asserted grounds of military
necessity. Following a ruling of the Israeli High Court of Justice in 1979, the Government of
Israel changed its policy of land confiscation on the asserted ground of military necessity and
started having recourse to civil laws relating to land confiscation in place under Ottoman rule.
According to these laws, land may be seized either because no one can prove ownership in
accordance with the required standard of evidence or because the area in which it is situated is
declared a closed military zone which farmers are prohibited from entering.37
200. “Since 1967, the Israeli authorities have demolished thousands of Palestinian-owned
structures in the [Occupied Palestinian Territory], including an estimated 2,000 houses in East
Jerusalem.”38 During the first quarter of 2008, the Israeli authorities demolished 124 structures in
the West Bank, including East Jerusalem, for lack of permits. Of those, 61 were residential
35 A/63/519.
36 Ibid.
37 Ibid.
38 Office for the Coordination of Humanitarian Affairs (OCHA), “The planning crisis in East Jerusalem:
Understanding the phenomenon of ‘illegal’ construction”, Special Focus, April 2009, available at:
http://www.ochaopt.org/documents/ocha_opt_planning_crisis_east_jerusalem_april_2009_english.pdf
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buildings whose demolition caused the displacement of many Palestinians, including children.
Demolition of structures and residential buildings has been a feature of the Israeli policy that has
displaced Palestinians mainly in the Jordan Valley and in East Jerusalem, but also in other areas
of the West Bank. The Israeli authorities justify the majority of these demolitions by claiming
that the structures or buildings lack the necessary permits. The relevant Israeli authorities rarely
issue building permits for Palestinians, frequently refusing them on the basis that the
construction is in violation of the mandatory regional outline plans approved by the British
Mandate Government of Palestine in the 1940s.39 Areas in East Jerusalem face the prospect of
mass demolitions. Carrying out pending demolition orders would affect a combined total of more
than 3,600 persons.40 The combined effects of the Israeli policies of expanding and establishing
new settlements, the demolition of Palestinian-owned properties, including houses, the restrictive
and discriminatory housing policies as well as the Wall have been described as a way of
“actively pursuing the illegal annexation” of East Jerusalem.41
201. The route of the Wall weaves between Palestinian villages and neighbourhoods and has
contributed to the fragmentation of the West Bank into a series of enclaves separated from one
another (see map42). The Wall encircles settlements built around Jerusalem and within the West
Bank and connects them to Israel. Eighty per cent of Israeli inhabitants of these settlements
reside to the west of the Wall. The route of the Wall, which has created a demarcation, is to a
great degree determined by the objective of incorporating settlements into the Israeli side and to
exclude Palestinians from these areas.43 If completed, 85 per cent of the Wall will be located
inside the West Bank, and 9.5 per cent of West Bank territory, including East Jerusalem, will be
cut off from the rest of the West Bank. It is estimated that 385,000 Israeli citizens in 80
settlements out of the total of 450,000 Israeli citizens in 149 settlements and 260,000
Palestinians, including in East Jerusalem, will be located between the Wall and the Green Line.
In addition, approximately 125,000 Palestinians in 28 communities will be surrounded on three
39 A/63/518.
40 OCHA, Special Focus, April 2009.
41 The Guardian, “Israel annexing East Jerusalem, says EU”, 7 March 2009, available at:
http://www.guardian.co.uk/world/2009/mar/07/israel-palestine-eu-report-jerusalem
42 OCHA, “West Bank barrier route projections”, July 2008, available at:
http://www.ochaopt.org/documents/BarrierRouteProjections_July_2008.pdf
43 A/63/519.
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sides and 26,000 Palestinians in eight communities will be surrounded on four sides.44 A number
of surveys compiled by United Nations agencies45 found that many Palestinian communities cut
off by the Wall do not enjoy full access to emergency health services, posing severe challenges
in medical emergencies and for expectant mothers. In addition the Wall cuts off residents in
closed areas from schools and universities, also having an impact on social relations and
especially on traditional marriage patterns. The Wall isolates the land and water resources of a
large number of Palestinians, having a negative impact on agricultural practices and on rural
livelihoods.
202. Despite the claim by Israel that restrictions of movement within the West Bank are
imposed on Palestinian residents for security purposes, most of those internal restrictions appear
to have been designed to guarantee unobstructed travel to the Israeli inhabitants of the
settlements. None of these restrictions applies to Israeli citizens travelling throughout the West
Bank.46
203. A two-tiered road system has been established throughout the West Bank in which main
roads are reserved for the exclusive use of Israeli citizens while Palestinians are confined to a
different (and inferior) road network. The Israeli-built roads in the West Bank form a network
linking Israeli settlements with one another and to Israel proper. Palestinians are denied free
access to approximately 1,500 km of roads within the West Bank.47 Travel on these roads by
Palestinians is completely forbidden. Partially prohibited roads are those for which a special
permit is required, while restricted roads are those on which individuals travelling on such roads
who are not from the local area must have a permit.48
204. The policy of “closure”, i.e. closures of entire areas and restrictions on the movement for
goods and people on the basis of alleged security threats to Israeli citizens, has been a
44 OCHA, “Five years after the International Court of Justice Advisory Opinion: A summary of the humanitarian
impact of the barrier”, July 2009 (Updated August 2009), available at:
http://www.ochaopt.org/documents/ocha_opt_barrier_report_july_2009_english_low_res.pdf
45 OCHA and UNRWA surveys quoted in OCHA Special Focus, – “Three years later: The humanitarian impact of
the barrier since the International Court of Justice Opinion”, 9 July 2007, available at:
http://www.ochaopt.org/documents/ICJ4_Special_Focus_July2007.pdf.
46 A/63/519.
47 Most prohibited roads comprise the major north-south and east-west routes in the West Bank. These are reserved
for settlers, Israeli security forces and non-Palestinian international passport holders, including international United
Nations staff.
48 A/63/519.
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characteristic of the Israeli control over the Gaza Strip and the West Bank since 1996 and has
dramatically affected the lives of Palestinians. “Perhaps the most devastating effect of the
heightened closure has been a dramatic rise in unemployment levels in the West Bank and Gaza
Strip. Because the closure restricts the movement of all people (and goods) in and out of the
Gaza Strip and West Bank, as well as movement within the West Bank itself, workers from these
territories have been unable to reach their places of employment. According to the Palestinian
Ministry of Labour, unemployment in Gaza has increased from 50 per cent to 74 per cent (and
from 30 per cent to 50 per cent in the West Bank). Before the heightened closure, 22,000 Gazans
(down from 80,000 in 1987) and 26,000 West Bankers had permits to work in Israel.” “Losses
from unemployment amount to $1.04 million daily for the Gaza Strip alone – $750,000 from lost
wages in Israel and $290,000 from lost wages in local sectors. The Palestinian Bureau of
Statistics (PBS) estimates that from February 25 to April 4, the Gaza Strip and West Bank lost
$78.3 million in wages and income.”49 In June 2009, more than 40 United Nations and other
humanitarian agencies urged Israel to lift its blockade of Gaza, where nearly everyone depends
on international humanitarian assistance, and indiscriminate sanctions are affecting the entire
population of 1.5 million50 (see also chap. V).
205. A number of Israeli policies and measures especially since 1996 have contributed to
effectively separating Gaza from the West Bank, despite the commitments contained in the Oslo
I Accord by which “the two sides view the West Bank and the Gaza Strip as a single territorial
unit, whose integrity will be preserved during the interim period.” The imposition of tight
closures and limitations on movement has chiefly contributed to this separation.51 With the
implementation of the “disengagement plan” and after Hamas secured control of the Gaza Strip,
the imposition of an almost total closure has meant that direct contact is no longer possible with
Palestinians from the West Bank. The arrest by Israel of members of the Palestinian Legislative
Council and other Palestinian Authority officials has also resulted in the inability of many
49 Sara Roy, “Economic deterioration in the Gaza Strip”, Middle East Report, No. 200 (Summer 2006), available at:
http://www.merip.org/mer/mer200/roy.html
50 “UN, aid agencies call for end to Israel’s two-year blockade of Gaza” (17 June 2009), available at:
http://www.un.org/apps/news/story.asp?NewsID=31174&Cr=gaza&Cr1
51 “The total separation of the Gaza Strip from the West Bank is one of the greatest achievements of Israeli politics.”
See Amira Hass, “An Israeli achievement” (20 April 2009), available at:
http://www.bitterlemons.org/previous/bl200409ed15.html#isr2
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institutions to function properly and prevented Palestinians from the two areas to work together.
In the past few years a new permit system has been imposed on Palestinians of the Gaza Strip
living in the West Bank. Without such a permit they can be declared "illegal aliens". In addition,
the Israeli authorities – who are in control of the population registry – have stopped updating the
addresses of Palestinians who have moved from Gaza to the West Bank. The new requirement
for a permit is based on a person's registered address, enabling Israel to bar Palestinians whose
registered address is in Gaza from moving to the West Bank. This measure has also retroactively
turned many Palestinians who already live in the West Bank into illegal residents. These policies
have had a devastating impact on many families that were effectively forced to live apart or, in
order to live together, move to the Gaza Strip with no possibility of returning to the West Bank.52
Israel has bureaucratically and logistically effectively split and separated not only Palestinians in
the occupied territories and their families in Israel, but also Palestinian residents of Jerusalem
and those in the rest of the territory and between Gazans and West Bankers/Jerusalemites.53
206. Despite prohibitions under international humanitarian law (IHL),54 Israel has applied its
domestic laws throughout the Occupied Palestinian Territory since 1967. Notably, existing
planning and construction laws were annulled and replaced with military orders, and related civil
powers transferred from local authorities to Israeli institutions, with ultimate discretion resting
with military commanders.55 The application of Israeli domestic laws has resulted in
institutionalized discrimination against Palestinians in the Occupied Palestinian Territory to the
benefit of Jewish settlers, both Israeli citizens and others. Exclusive benefits reserved for Jews
derive from the two-tiered civil status under Israel’s domestic legal regime based on a “Jewish
nationality,” which entitles “persons of Jewish race or descendency”56 to superior rights and
privileges, particularly in land use, housing, development, immigration and access to natural
resources, as affirmed in key legislation.57 Administrative procedures qualify indigenous
52 B’Tselem and Hamoked, “Separated entities - Israel divides Palestinian population of West Bank and Gaza Strip”,
available at: http://www.btselem.org/Download/200809_Separated%20Entities_Eng.pdf
53 Amira Hass, op. cit.
54 The Hague Regulations (art. 43).
55 Order regarding the Towns, Villages and Buildings Planning Law (Judea and Samaria) (No. 418), 5731-1971
(QMZM 5732 1000; 5736 1422, 1494; 5741 246; 5742 718, 872; 5743, No. 57, at 50; 5744, No. 66, at 30), para. 8.
56 Jewish National Fund, Memorandum of Association, art. 3 (c).
57 For those holding “Jewish nationality” (as distinct from Israeli citizenship), special immigration rights and
privileges are provided in the Basic Law: Law of Return (1950), as well as development and access to natural
resources under the Basic Law: “Israel Lands” (1960).
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inhabitants of the Occupied Palestinian Territory as “alien persons” and, thus, prohibited from
building on, or renting, large portions of land designated by the Government of Israel as “State
land”.58
207. The two-tiered civil status under Israeli law, favouring “Jewish nationals” (le’om yehudi)
over persons holding Israeli citizenship (ezrahut), has been a subject of concern under the
International Covenant on Economic, Social and Cultural Rights, particularly those forms of
discrimination carried out through Israel’s parastatal agencies (World Zionist
Organization/Jewish Agency, Jewish National Fund and their affiliates), which dominate land
use, housing and development.59 The Committee on Economic, Social and Cultural Rights also
has recognized that Israel’s application of a “Jewish nationality” distinct from Israeli citizenship
institutionalizes discrimination that disadvantages all Palestinians, in particular, refugees.60
208. In 2007, the Committee on the Elimination of Racial Discrimination highlighted another
discriminatory policy imposed by the Israeli authorities on Palestinian residents of the Occupied
Palestinian Territory as well as those who are Israeli citizens (but denied a legal “nationality”
status).61 The “Citizenship and Entry into Israel Law (Temporary Order)” of 31 May 2003 bars
the possibility of granting Israeli citizenship and residence permits in Israel, including through
family reunification, to residents of the Occupied Palestinian Territory. The Committee noted
that such measures have a disproportionate impact on Arab Israeli citizens who marry
58 An alien person is defined as one who falls outside the following categories: (a) an Israeli citizen; (b) a person
who has immigrated (to Israel) under the Basic Law: Law of Return; (c) someone who is entitled to the status of
immigrant under the Law of Return, i.e. a Jew by descent or religion; (d) a company controlled by (a), (b) or (c).
59 In 1998, the Committee on Economic, Social and Cultural Rights observed “with grave concern that the Status
Law of 1952 authorizes the World Zionist Organization/Jewish Agency and its subsidiaries, including the Jewish
National Fund, to control most of the land in Israel, since these institutions are chartered to benefit Jews exclusively.
[…] large-scale and systematic confiscation of Palestinian land and property by the State and the transfer of that
property to these agencies constitute an institutionalized form of discrimination because these agencies by definition
would deny the use of these properties to non-Jews. Thus, these practices constitute a breach of Israel's obligations
under the Covenant.” (E/C.12/1/Add.27, para. 11).
60 In its 2003 review, the Committee on Economic, Social and Cultural Rights also observed with particular concern
that “the status of ‘Jewish nationality,’ which is a ground for exclusive preferential treatment for persons of Jewish
nationality under the Israeli Law of Return, granting them automatic citizenship and financial government benefits,
thus resulting in practice in discriminatory treatment against non-Jews, in particular Palestinian refugees.”
(E/C.12/1/Add.90, para. 18).
61 The “Or” Commission, a panel appointed by the Israeli Government in 2000, found that Arab citizens suffer
discrimination in Israel and levelled criticism at the Government for failing to give fair and equal attention to the
needs of Arab citizens of Israel. See its full report at: http://elyon1.court.gov.il/heb/veadot/or/inside_index.htm (in
Hebrew).
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Palestinians from the Occupied Palestinian Territory and wish to live together with their families
in Israel. While noting the State party’s legitimate objective of guaranteeing the safety of its
citizens, the Committee expressed concern about the fact that these “temporary” measures have
systematically been renewed and have been expanded to citizens of “enemy States”.62
209. Since 1967, about 750,000 Palestinians have been detained at some point by the
Government of Israel, according to Palestinian human rights organizations. Currently, there are
approximately 8,100 Palestinian prisoners in Israeli prisons and detention centres, roughly 550 of
whom are administrative detainees.63 Administrative detention is detention without charge or
trial, authorized by an administrative order rather than by judicial decree. The conditions of
Palestinians in Israeli detention facilities have been the subject of considerable international
criticism, including concerns of torture and other ill-treatment. Palestinian detainees can
normally be visited only by first-degree relatives (see chapter XXI). However, following Hamas’
seizure of full control in the Gaza Strip in June 2007, the Israeli authorities suspended visits from
family members travelling from Gaza to Palestinian detainees in Israel, depriving more than 900
detainees of direct contact with their relatives.64
C.
Relevant political and administrative structures in the Gaza Strip and
the West Bank
210. The Palestinian Legislative Council is the legislature of the Palestinian Authority; a
unicameral body with 132 members, elected from 16 electoral districts in the West Bank and
Gaza. Its initial composition, whose normal cycle is four years, was 88 members. In accordance
with the Oslo Accords, the first Palestinian elections took place in 1996 under the supervision of
international monitors. In 2000, a second round of planned elections did not take place due to the
flaring-up of the second intifada. In January 2006, the second general polls took place. The
elections resulted in a majority for the List of Change and Reform.65 On 29 June, days after the
capture of Gilad Shalit, the Israeli armed forces in the West Bank arrested eight Palestinian
62 CERD/C/ISR/CO/13.
63 Mission’s Public hearings, Geneva (7 July 2009). Testimony of Ms. Sahar Francis, Director of Addameer,
available at: http://webcast.un.org/ramgen/ondemand/conferences/unhrc/gaza/gaza090707am1-
eng.rm?start=00:00:00&end=00:47:46
64 A/63/518.
65 The name of the list on which Hamas representatives ran for election.
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Government ministers and 26 members of the Palestinian Legislative Council.66 The Council has
been unable to operate since, as the continued detention of its members means it cannot achieve
a quorum.
211. The Palestinian Basic Law was developed to function as a temporary constitution for the
Palestinian Authority until the establishment of an independent State and a permanent
constitution for Palestine can be drawn up. The Basic Law was passed by the Palestinian
Legislative Council in 1997 and ratified by the President of the Palestinian Authority in 2002. It
has been amended twice: in 2003, the political system was changed to introduce a prime minister
and, in 2005, it was amended to conform to the new Election Law.67 The legal system comprises
a body of laws and decrees which include those remaining from previous centuries – Ottoman,
British, Jordanian (in the West Bank), Egyptian (in the Gaza Strip) and Israeli – and legislation
introduced by presidential decrees and laws passed by the Palestinian Legislative Council.68
212. In the jurisdiction of the Palestinian Authority, the court system comprises Magistrate
Courts, dealing with misdemeanours; Courts of First Instance, dealing with more serious crimes
and appeals against judgements handed down by Magistrate Courts; Appeal Courts, which hear
appeals against judgements of the Courts of First Instance; and the High Court, which provides
the highest level of appeal. A Supreme Criminal Court was set up in 2006 to try crimes such as
murder, abduction, rape, so-called honour crimes and attacks on national security. Military
Courts hear cases involving members of the security forces and apply the 1979 PLO
Revolutionary Code. The Attorney General and the prosecutors investigate and prosecute crimes,
oversee the legality of detentions and investigate complaints by detainees. The Attorney General
and the judges are nominated by the Higher Judicial Council, which is headed by the President of
the High Court, but appointed by the Palestinian Authority’s President.69 Since June 2007, the
Gaza authorities have restructured the judiciary in violation of Palestinian laws. To replace
66 See chapter XXI.
67 The Palestinian Basic Law: http://www.palestinianbasiclaw.org
68 Amnesty International, “Occupied Palestinian Territories torn apart by factional strife”, available at:
http://www.amnesty.org/en/library/asset/MDE21/020/2007/en/dom-MDE210202007en.html.
69 Ibid.
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officials who had left their jobs under instruction of the Palestinian Authority, the Gaza
authorities appointed judges and prosecutors generally lacking experience and independence.70
213. Before June 2007, there were about 12,600 Palestinian police officers in Gaza and 6,500
in the West Bank under a unified command. Palestinian civil police were operating from 10
district headquarters (including the one in Ramallah, which is also its main central command).
After Hamas seized full control of the Gaza Strip, official data about police numbers are
available only for the West Bank, where there are 78 police facilities, including district
headquarters, general stations and posts, public order compounds, prisons and detention centres,
training centres and stations for border police, tourist police, criminal investigation police and
traffic police.71
214. In 2005 various security forces were consolidated into three branches: National Security,
Internal Security and General Intelligence, each comprising several forces. General Intelligence
includes Military Intelligence and the Military Police, and is under the direct control of the
Palestinian Authority’s President, as is the Presidential Guard/Force 17. National Security and
Internal Security are under the jurisdiction of the Ministers of National Security and the Interior,
respectively, but their heads are appointed by the Palestinian Authority’s President. In 2006, the
then Hamas Interior Minister established the Executive Force, mainly composed of members of
al-Qassam Brigades and Hamas supporters.72 Since Hamas seized control in June 2007, law and
order and other security functions have been performed by Hamas security organizations.73 The
Gaza authorities announced a series of new bodies or mechanisms to replace the Palestinian
Authority’s security forces and judicial institutions that have refused to operate under or
alongside the Hamas administration.74 In September 2007, the Internal Security Force was
established with most of its personnel coming from al-Qassam Brigades. In October 2007,
70 Human Rights Watch, Internal Fight: Palestinian Abuses in Gaza and the West Bank (July 2008), available at:
http://www.hrw.org/en/reports/2008/07/29/internal-fight-0
71 The European Union’s police mission for the Palestinian Territories (2008), available at:
http://www.consilium.europa.eu/uedocs/cmsUpload/EUPOL%20COPPS%20booklet.pdf
72 See chapter VII.
73 Central Intelligence Agency, The World Fact Book 2009 (Gaza Strip), available at:
https://www.cia.gov/library/publications/the-world-factbook/geos/gz.html
74 “Occupied Palestinian Territories torn apart…”.
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Hamas dissolved the Executive Force and absorbed its personnel into the police. Both the
Internal Security Force and the police report to the minister of interior.75 (See chapter X.)
215. Most Palestinian political parties have an armed wing or armed groups affiliated to
them.76 The two largest armed groups are al-Aqsa Brigades, the armed wing of Fatah, and al-
Qassam Brigades, the armed wing of Hamas. Al-Aqsa Brigades were established by Fatah
activists, including members of the Palestinian Authority’s security forces, shortly after the
outbreak of the second intifada. Al-Qassam Brigades were established in the early 1990s with the
stated aim of conducting armed resistance to Israeli occupation.77
D.
Relevant political and administrative structures in Israel
216. In Israel, a largely ceremonial President is elected by the 120-seat Knesset for a seven-
year, non-renewable term. The Prime Minister is usually the leader of the largest party or
coalition in the Knesset, whose members are elected by party-list, proportional representation for
four-year terms. The three main parties are the centre-left Labour Party, the centrist Kadima and
the right-wing Likud.78
217. Following legislative elections, the President assigns a Knesset member – traditionally
the leader of the largest party – the task of forming a governing coalition.
218. Israel has no formal constitution; some of the functions of a constitution are fulfilled by
the Declaration of Establishment (1948), the Basic Laws of the parliament (Knesset) and the
Israeli Citizenship Law.
219. The court system comprises Magistrates’ Courts, which are courts of first instance in
criminal and civil matters; District Courts, which are courts of first instance with jurisdiction
over serious criminal offences which carry the death penalty or more than seven years’
imprisonment and act as appellate courts for the judgments of the Magistrates' Court; and the
75 Internal Fight….
76 The armed wings of the Islamic Jihad, the Popular Front for the Liberation of Palestine and the Democratic Front
for the Liberation of Palestine. There are also other smaller splinter groups.
77 “Occupied Palestinian Territories torn apart…”.
78 Freedom House. Country report: Israel (2009), available at:
http://www.freedomhouse.org/template.cfm?page=22&country=7630&year=2009
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Supreme Court, which is the highest judicial instance of the country.79 The Supreme Court hears
direct petitions from Israeli citizens. It also hears cases related to Palestinian residents of the
West Bank and Gaza Strip80 sitting as the High Court of Justice.81 Palestinian civilians charged
with security-related and other criminal offences are, however, commonly tried in the Israeli
military court system. Since 1967, more than 200,000 cases have been brought before military
courts, where Palestinian civilians have been prosecuted and judged by the military authorities.
About half the prisoners currently being held in Israel have been sentenced to prison terms by
military courts.82
220. The Israeli police is a civilian force mandated to fight crime, control traffic and maintain
public safety. The border police (Magav) is the military branch of the Israeli police, with combat,
counter-terrorism and riot-control units.
221. Branches of the military are the Israeli Defense Forces (IDF), Israeli Naval Forces (INF)
and the Israeli Air Force (IAF). The Israeli military is headed by the Chief of General Staff under
the Minister of Defense. The structure of the Israeli army comprises four regional commands: (a)
the Northern Command; (b) the Central Command; (c) the Southern Command; and (d) the
Home Front Command. The Coordinator of Government Activities in the Territories (COGAT) –
formerly known as the “Civil Administration” – is a unit in the Israeli Ministry of Defense that
administers areas of the West Bank and coordinates with international organizations operating in
the West Bank and the Gaza Strip.
222. The Israeli intelligence services are: (a) the Institute for Intelligence and Special
Operations (Mossad); (b) the Israeli Security Agency (formerly the General Security Services) or
the Israeli internal security service (Shin Bet or Shabak); and (c) the Military Intelligence
(Aman).
79 The State of Israel – The Judicial Authority, at: http://elyon1.court.gov.il/eng/home/index.html
80 Country report:….
81 “As the High Court of Justice, the Supreme Court rules as a court of first instance, primarily in matters regarding
the legality of decisions of State authorities: Government decisions, those of local authorities and other bodies and
persons performing public functions under the law. It rules on matters in which it considers it necessary to grant
relief in the interests of justice, and which are not within the jurisdiction of another court or tribunal.” See The State
of Israel – Judicial Authority (The Supreme Court), at: http://elyon1.court.gov.il/eng/rashut/maarechet.html
82 See Yesh Din – Volunteers for Human Rights, Backyard Proceedings: The Implementation of Due Process Rights
in the Military Courts in the Occupied Territories (December 2007), available at: http://www.yesh-
din.org/site/images/BackyardProceedingsEng.pdf
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III.
EVENTS OCCURRING BETWEEN THE “CEASEFIRE” OF 18 JUNE 2008
BETWEEN ISRAEL AND THE GAZA AUTHORITIES AND THE START OF
ISRAEL’S MILITARY OPERATIONS IN GAZA ON 27 DECEMBER 2008
223. As mentioned in chapter I, in order to implement its mandate the Mission decided to
focus primarily on events, actions or circumstances that had occurred since 19 June 2008, when a
ceasefire was agreed between the Government of Israel and Hamas. Accordingly, both in the
context of its mandate and in order to be informed about the environment in which the Israeli
military operations in the Gaza Strip took place, the Mission reviewed incidents relevant to the
ceasefire that were reported to have taken place between 19 June 2008 and the start of Israel’s
military operations in the Gaza Strip. Information about these incidents, which are recorded in
chronological order, was gathered primarily from documents in the public domain and may not
represent all incidents that occurred during this period.83
224. On 18 June 2008, the Gaza authorities and Israel announced a six-month ceasefire in an
agreement brokered by Egypt.84 The ceasefire came into effect on 19 June 2008 at 6 a.m.85
225. The terms of the ceasefire agreement were not set out in any formal, written document
and, according to recent analysis, the Gaza authorities’ and Israel’s understanding of the terms
differed substantially.86 According to information reported by OCHA, the agreement included a
commitment by the Gaza authorities to halt attacks by Palestinian armed groups against Israel
immediately and a commitment by Israel to cease its military operations in Gaza. Israel also
reportedly agreed to ease its blockade of Gaza and gradually lift its ban on the import of a large
83 Sources include public statements issued by the Gaza authorities, Palestinian armed groups and Israel, reports of
the United Nations, national and international NGOs and the media.
84 The ceasefire was officially termed “a period of calm” (Tahdiyah in Arabic). It has also been referred to as
“security calm” and “lull”.
85 Prime Minister Olmert’s comments on the calm in the south, Press Release, 18 June 2008, Prime Minister’s
Office, available at: http://www.pmo.gov.il/PMOEng/Archive/Press+Releases/2008/06/spokecalm180608.htm;
Al-Ahram Weekly, “Calm for now”, 19 June 2008, available at: http://weekly.ahram.org.eg/2008/902/eg2.htm;
Felesteen Newspaper, “Gaza: Hamas: the Tahdiyah is the fruit of the resilience and resistance of the (resistance)
groups and its unity”, 18 June 2009, available at: http://www.felesteen.ps/file/pdf/2008/06/18/1.pdf; 19 June 2009;
Felesteen Newspaper, Gaza, Tahdiya starts today accompanied with international and popular welcoming,
http://www.felesteen.ps/file/pdf/2008/06/19/1.pdf. See chapter II.
86 See International Crisis Group, “Ending the war in Gaza”, Middle East Briefing No. 26, 5 January 2009, p. 3,
available at:
http://www.crisisgroup.org/library/documents/middle_east___north_africa/arab_israeli_conflict/b26_ending_the_wa
r_in_gaza.pdf
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number of commodities.87 According to Egyptian sources quoted by the International Crisis
Group,88 after three weeks the two sides were to commence negotiations for a prisoner exchange
and the opening of the Rafah crossing.
226. The agreement was made in respect to the territory of the Gaza Strip only, but Egypt
reportedly undertook to work to expand the ceasefire to the West Bank after the initial six-month
ceasefire had elapsed.89
227. The first incident relevant to the ceasefire reportedly took place on 23 June 2008, when a
67-year-old Palestinian civilian was injured when the Israeli military stationed at the border
north-west of Beit Lahia opened fire on a group of Palestinians trying to collect fire wood near
the border. Also on 23 June, two mortar shells were reportedly fired from central Gaza. One
landed near the Nahal Oz crossing and the other in the Negev desert; no injuries were reported.90
228. Between 18 and 24 June 2008, the Karni (al-Mintar) crossing conveyor belt was opened
for four days for wheat and animal feed but was closed to all other imports and exports. The
Erez crossing was open for six days to allow the movement of diplomats, international
humanitarian workers and critical medical cases. OCHA indicated that senior Palestinian
businessmen were also allowed to cross. The Sufa crossing was open for five days during the
week ending 24 June 2008, while the Kerem Shalom and Rafah crossings remained closed. The
Nahal Oz energy pipelines were open on the six scheduled operating days.91
87 OCHA, Protection of Civilians Weekly Report (18–24 June 2008), available at:
http://www.ochaopt.org/documents/Weekly_Briefing_Notes_265_English.pdf; see also “Ending the war…”, which
also notes that crossing points were to be opened after 72 hours (6 a.m. on 22 June 2008) to allow 30 per cent more
goods into Gaza and, on 1 July 2009, all crossings were to be opened to allow for the transfer of goods into Gaza
(footnote 1). It is the Mission’s understanding that, in relation to the transfer of goods, the agreement did not include
materials that could be used to make explosives or projectiles.
88 See “Ending the war…”.
89 “Ending the war…”, footnote 1. See also The Jerusalem Post, “End of truce? 3 Kassams hit w. Negev”, 24 June
2008, available at
http://www.jpost.com/servlet/Satellite?cid=1214132667653&pagename=JPost%2FJPArticle%2FShowFull
90 OCHA, Protection of Civilians Weekly Report (18–24 June 2008).
91 Ibid.
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229. Shortly after midnight on 24 June 2008, a mortar fired from Gaza landed in the Negev
near the Karni checkpoint, causing no injuries or damage.92 No group claimed responsibility for
the attack.93
230. At dawn on 24 June 2008, the Israeli armed forces launched a raid in the West Bank town
of Nablus in which an Islamic Jihad activist and another Palestinian man were killed.94
According to statements reportedly made by the Palestinian armed group Islamic Jihad, it
responded by firing three Qassam rockets into Israel, which landed in the western Negev
desert.95 It added: “We cannot keep our hands tied when this is happening to our brothers in the
West Bank”, while a Gaza authorities spokesman was quoted as saying that the rocket attack
came as a result of “Israeli provocation” but that Hamas, as the Gaza authorities, was
“committed to the security calm”.96 In Israel, the Foreign Ministry spokesperson termed the
rocket attacks “a grave violation of the ceasefire”97 and said it would consider reimposing
economic sanctions.98
231. On 26 June 2008, Israel’s Defense Ministry ordered the reclosure of the Gaza border
crossings, save for special humanitarian cases, in response to the rocket attacks two days
previously.99 The Gaza authorities accused Israel of violating the ceasefire, stating “if the
crossings remain closed, the truce will collapse”.100
92 Rianovosti, “Mortar attack from Gaza hit Israel”, 24 June 2008, available at:
http://en.rian.ru/world/20080624/111867958.html; “End of truce?...”.
93 “Mortar attack…”.
94 “End of truce?...”; The New York Times, “Rockets hit Israel, breaking Hamas truce”, 25 June 2008, available at
http://www.nytimes.com/2008/06/25/world/middleeast/25mideast.html
95 “End of truce?...”.
96 Ibid.
97 Ibid.
98 BBC News, “Rockets ‘violated Gaza ceasefire’”, 24 June 2008, available at:
http://news.bbc.co.uk/2/hi/middle_east/7470530.stm
99 Xinhua News, “Israeli FM calls for immediate military response to Qassam attacks”, 26 June 2008.
100 Gaza authorities, “The Government: Closing the crossings is an infringement of truce, and we call Egypt to
interpose”, press statement (25 June 2008), available at:
http://www.moi.gov.ps/en/?page=633167343250594025&Nid=4702; see also “Israeli FM calls for immediate
military response…”.
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232. Later on 26 June 2008, one rocket was fired from Gaza into Israel for which the
Palestinian armed group al-Aqsa Martyrs’ Brigades claimed responsibility.101 As reported by the
Xinhua news agency, the armed group stated that “the truce must include the West Bank and all
sorts of aggression must stop”.102 The Israeli Foreign Minister commented, “I do not care which
organization fired the rocket, Israel must respond militarily and immediately.”103
233. On 27 June 2008, the al-Aqsa Martyrs’ Brigades claimed responsibility for firing mortar
shells into Israel, one of which landed near Sderot. The head of the Gaza authorities, Ismail
Haniyah, called on all the Palestinian factions to adhere to the ceasefire, stating that “the factions
and the people accepted the lull in order to secure two interests – an end to aggression and the
lifting of the siege”. A spokesman for the Gaza authorities was quoted as saying that it
considered the rocket attacks to be “unpatriotic” and that Hamas was considering the possibility
of taking action against those perpetrating the attacks against Israel.104
234. On 28 June 2008, mortar shells were reportedly fired at the Karni crossing but no group
claimed responsibility. On 29 June 2008, the crossings into Gaza were closed, 105 save for the
delivery of fuel.
235. On 30 June 2008, Israel reported that a rocket fired from Gaza fell near the kibbutz of
Miflasim. No group claimed responsibility and Israel confirmed that as of 1 July 2008 no rocket
fragments had been located. Israel closed the crossings which had been reopened the day before.
The Gaza authorities rejected the assertion that a rocket had in fact been fired and called the
closure of the crossings “unjustified”.106
101 OCHA, Protection of Civilians Weekly Report (25 June–1 July 2008), available at:
http://www.ochaopt.org/documents/Weekly_Briefing_Notes_266.pdf
102 Xinhua News, “Israeli FM calls for immediate military response …”.
103 Israel Ministry of Foreign Affairs: “FM Livni: Israel will not tolerate violations of the calm”, press release (26
June 2008), available at:
http://www.mfa.gov.il/MFA/About+the+Ministry/MFA+Spokesman/2008/Israel%20will%20not%20tolerate%20vio
lations%20of%20the%20calm%2026-Jun-2008
104 Ynet News, “Haniyeh: All Palestinian factions should honor truce”, 27 June 2008;
http://www.ynetnews.com/articles/0,7340,L-3561133,00.html
105 Intelligence and Terrorism Information Center at the Israel Intelligence Heritage & Commemoration Center,
“The six months of the lull arrangement”, December 2008.
106 The Guardian, “Israel closes Gaza crossing after reported rocket attack”, 1 July 2008, available at:
http://www.guardian.co.uk/world/2008/jul/01/israelandthepalestinians.middleeast
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236. On several occasions during the last two weeks of June, the Israeli navy fired at
Palestinian fishermen off the Gaza coast, forcing them to return to shore.107
237. During the month of June, the number of truckloads of goods allowed into Gaza
represented only 17 per cent of the number that entered Gaza in May 2007, before Hamas seized
control of the Gaza Strip. No exports had been allowed out of Gaza by Israel since December
2007.108
238. On 1 July 2008, a spokesman for the Gaza authorities accused the Israeli armed forces of
shooting a 65-year-old Palestinian woman who was living near the border. Israel said that it was
investigating the claim.109
239. On 2 July 2008, Israel reopened the Sufa and Karni crossings to allow passage of goods
into Gaza, while 45 medical evacuations were allowed through the Erez crossing.110
240. Also on 2 July 2008, several thousand Palestinians attempted to break into the Rafah
terminal and cross into Egypt. Egyptian security forces responded with water cannons and tear
gas to force them back into Gaza.111
241. On 3 July 2008, a rocket launched from Gaza struck north of Sderot and Israel closed the
crossings into Gaza for the day on 4 July 2008 in response.112
242. On 7 July 2008, a mortar shell fired from Gaza landed near the Karni crossing, on the
Gaza side.113 On the same day, Israeli forces began raids on institutions in Nablus that it believed
107 OCHA, Protection of Civilians Weekly Report (18–24 June 2008) and Protection of Civilians Weekly Report (25
June–1 July 2008).
108 OCHA, The Humanitarian Monitor, No. 26 (June 2008), available at
http://www.ochaopt.org/documents/HM_June_2008.pdf
109 “Israel closes Gaza crossings after reported rocket…”.
110 Government of Israel Ministry of Foreign Affairs, “Humanitarian Assistance to Gaza during the period of calm
(19 June – Dec 18, 2009)”, 26 December 2008, available at
http://www.mfa.gov.il/MFA/Government/Communiques/2008/Humanitarian_assistance%20_to_Gaza_since_June_
19_calm_understanding_18_Nov_2008
111 OCHA, Protection of Civilians Weekly Report (2–8 July 2008), available at:
http://www.ochaopt.org/documents/Weekly_Briefing_Notes_267.pdf
112 “The six months…”.
113 OCHA, Protection of Civilians Weekly Report (2–8 July 2008).
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to be linked to Hamas. Over the following four days, a mosque, a newspaper and other offices
were raided, and a medical centre and the Nafha Prisoners’ Association were closed down.114
243. On 8 July 2008, two mortars were fired from Gaza, 115 one landing at the Sufa crossing
and the other inside the Gaza Strip. Israel closed the crossings briefly. Following the firing of
another mortar shell into Israel, the crossing was again closed.
244. On 9 July 2008, Israeli forces shot dead a Hamas member near the West Bank city of
Jenin. This led Palestinian Authority Prime Minister Salam Fayyad to warn that the Israeli
military actions in the West Bank were undermining the Palestinian Authority and its efforts to
improve security.116
245. On 10 July 2008, the Israeli armed forces shot and killed a member of al-Aqsa Martyrs’
Brigades near the Kissufim crossing. The Israeli armed forces stated that warning shots had been
fired. In response, the al-Aqsa Martyrs’ Brigades fired two rockets into Israel which landed in an
open area. Sources inside Gaza said that the Gaza authorities had arrested those responsible for
firing the rockets and the al-Aqsa Martyrs’ Brigades stated that its members had been “abducted”
by Hamas.117
246. According to Israeli sources, on 12 July 2008 a rocket launched from the Gaza Strip
struck an open area in Sha’ar Hanegev and on 13 July 2008 two mortar shells fired fell short
inside the Gaza border. This led to Israel closing the Nahal Oz and Sufa crossings. On 15 July
2008, a mortar shell struck territory inside Israel, while three rockets misfired and landed inside
the Gaza Strip, in separate incidents on 25, 29 and 31 July 2008.118
247. On 29 July, a 10-year-old boy was shot in the head and killed by the Israeli Border Police
during a demonstration against the wall in Ni’lin in the West Bank. During a clash with Israeli
114 PCHR, “PCHR condemns IOF measures against Nablus charities”, press release (8 July 2009), available
at:http://www.pchrgaza.org/files/PressR/English/2008/62-2008.html; BBC News, “Gaza militants fire two rockets”,
10 July 2008, available at: http://news.bbc.co.uk/2/hi/middle_east/7500322.stm
115 “The six months…”.
116 “Gaza militants fire…”.
117 Ibid.; Reuters, “Hamas arrests first rocket squads since truce”, 10 July 2008, available at:
http://www.reuters.com/article/latestCrisis/idUSL10355564
118 “The six months…”.
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Border Police the following day, after the funeral in Ni’lin, a 17 year-old boy was shot in the
head and died on 4 August.119
248. During July 2008, the amount of commodities allowed into Gaza by Israel was assessed
by OCHA as remaining “far below the actual needs” and was “restricted to certain selected
essential humanitarian items”. The imports were 46 per cent of those entering Gaza in May 2007,
prior to the Hamas’ seizing control of the Gaza Strip. As a result of the restriction on imports and
total ban on exports, 95 per cent of Gaza’s industries remained closed.120
249. In August 2008, according to Israeli sources, three mortars and eight rockets were fired
into Israel from the Gaza Strip. They included a rocket which struck Sderot on 11 August
2008,121 prompting Israel’s closure of the crossings, as well as a rocket fired on 20 August 2008,
which once again led to the closure of the border crossings.122
250. During August, there was a reduction in the number of truckloads carrying goods into
Gaza. August imports represented 70 per cent of the July 2008 imports and 23 per cent of the
May 2007 level.123
251. In September 2008, three mortars and one rocket were fired into Israel from the Gaza
Strip, according to Israeli sources.124
252. During September, the movement of goods and people in and out of Gaza through the
crossing increased, with levels of imports at 37 per cent of the May 2007 level. The Sufa
119 Al-Haq, “Right to life of Palestinian children disregarded in Ni’lin as Israel’s policy of wilful killing of civilians
continues”, press release (7 August 2008), available at: http://www.alhaq.org/etemplate.php?id=387
120 OCHA, The Humanitarian Monitor, No. 27 (July 2008), available at:
http://www.ochaopt.org/documents/Humanitarian_Monitor_July_2008.pdf
121 “The six months…”.
122 Office of the United Nations High Commissioner for Refugees (UNHCR), “Israel-Occupied Palestine Territories:
Rocket attack throws Gaza crossing plan into jeopardy”, 20 August 2008, available at:
http://www.unhcr.org/refworld/topic,45a5199f2,4874797e3b,48ae79b81e,0.html
123 OCHA, The Humanitarian Monitor, No. 28 (August 2008), available at
http://www.ochaopt.org/documents/ocha_opt_humanitarian_monitor_08_2008_english.pdf
124 “The six months…”.
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crossing closed on 13 September 2008 and goods were redirected through Kerem Shalom, as
Israel stated that it intended to have only one goods crossing open at any one time.125
253. In October 2008, Israeli sources stated that only one rocket and one mortar were fired
into Israel from the Gaza Strip.126 There was a 30 per cent decline in imports allowed into Gaza
by Israel as compared to September 2008, partly due to the closure of the crossings during the
Jewish holidays. Imports were at 26 per cent of the level of May 2007. Tunnels under the Rafah
border reportedly proliferated during this period and allowed the entry of otherwise unavailable
goods. Collapsing tunnels continued to cause casualties.127
254. After two months in which few incidents were reported, the ceasefire began to founder on
4 November 2008 following an incursion by Israeli soldiers into the Gaza Strip, which Israel
stated was to close a cross-border tunnel that in Israel’s view was intended to be used by
Palestinian fighters to kidnap Israeli soldiers. The soldiers attacked a house in the Wadi al-Salqa
village, east of Deir al-Balah, which was alleged to be the starting point of the tunnel, killing a
member of the al-Qassam Brigades. Several Israeli soldiers were wounded. In response, the al-
Qassam Brigades fired more than 30 Qassam rockets into Israel. Israel responded with an air
strike that left a further five members of the al-Qassam Brigades dead. Both sides blamed the
other for the escalation of violence. Hamas also accused Israel of trying to disrupt talks between
Hamas and Fatah that were scheduled for the following week in Cairo.128 Israel closed the
crossings into the Gaza Strip on 5 November 2008 and they remained closed until 24 November
2008, when they were opened briefly to allow humanitarian supplies to enter.129
125 OCHA, The Humanitarian Monitor, No. 29 (September 2008), available at:
http://www.ochaopt.org/documents/ocha_opt_humanitarian_monitor_2008_10_1_english.pdf
126 Intelligence and Terrorism Information Center at the Israel Intelligence Heritage & Commemoration Center,
“Summary of rocket fire and mortar shelling in 2008”, January 2009.
127 OCHA, The Humanitarian Monitor, No. 30 (October 2008), available at:
http://www.ochaopt.org/documents/ocha_opt_humanitarian_monitor_oct_2008_10_english.pdf
128The Guardian, “Gaza truce broken as Israeli raid kills six Hamas gunmen”, 5 November 2008, available at:
http://www.guardian.co.uk/world/2008/nov/05/israelandthepalestinians; The Times, “Six die in Israeli attack over
Hamas ‘tunnel under border to kidnap soldier’”, 6 November 2008, available at
http://www.timesonline.co.uk/tol/news/world/middle_east/article5089940.ece. A Hamas spokesman was quoted as
saying “The Israelis began this tension and they must pay an expensive price” while an Israeli spokesman stated
“this operation was in response to a Hamas intrusion of the quiet”.
129 JTA, “Israel closes Gaza crossings after attack”, 25 November 2008, available at http://jta.org/news/article-
print/2008/11/25/1001205/israel-closes-gaza-crossings-after-attack?TB_iframe=true&width=750&height=500.
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255. According to the Israeli internal intelligence service (known as Shin Bet or Shabak), 22
rockets and nine mortars were fired into Israel between 5 and 12 November 2008.130 The
crossings into the Gaza Strip remained closed during this time. On 14 November 2008, Amnesty
International issued a press release calling on Israel to allow humanitarian aid and medical
supplies to enter.131
256. On 17 November 2008, Amnesty International issued another press release, noting that
on that day Israel had allowed a limited number of trucks carrying humanitarian assistance to
enter Gaza. Amnesty International also noted that an additional ten members of Palestinian
armed groups had been killed by Israeli air strikes since the killing of six members of Palestinian
armed groups by Israel on 4 November 2008.132
257. Palestinian armed groups fired rockets and mortars into Israel throughout November
2008. According to Israeli sources, 125 rockets were fired into Israel during November 2008
(compared to one in October) and 68 mortars shells were fired (also compared to one in
October).133 On 14 November 2008, a resident of Sderot was slightly injured by shrapnel.
258. Israel closed the crossings into Gaza for most of November 2008, although 42 trucks of
humanitarian aid were permitted to cross on 24 November 2008 and about 60 on 26 November
2008.134 According to OCHA, the number of trucks allowed into Gaza in November 2008 was 81
per cent lower than in October 2008. Shortages forced most of Gaza’s bakeries to close and
UNRWA suspended food distribution for five days to 750,000 Gazans owing to a lack of food
supplies.135
130 Israel Security Agency, “Weekly update, November 5-12 ,2008”, available at:
http://www.shabak.gov.il/SiteCollectionImages/english/TerrorInfo/weekly-update-12-11-08-En.pdf
131 Amnesty International, “Israel blocks deliveries to Gaza”, 14 November 2008, available at
http://www.amnesty.org/en/news-and-updates/news/israeli-army-blocks-deliveries-gaza-20081114
132 Amnesty International, “Israeli Army relaxes restrictions on humanitarian aid to Gaza”, 17 November 2008,
available at http://www.amnesty.org/en/news/news-and-updates/israeli-army-relaxes-restrictions-humanitarian-aid-
gaza-20081117
133 “Summary of rocket fire…”.
134 JTA, “Israel closes Gaza crossings after attack…” and “Kassams continue to strike Negev”, 27 November 2008,
available at http://jta.org/news/article-print/2008/11/27/1001233/kassams-continue-to-strike-
negev?TB_iframe=true&width=750&height=500
135 OCHA The Humanitarian Monitor, No. 31 (November 2008), available at:
http://www.ochaopt.org/documents/ocha_opt_humanitarian_monitor_2008_11_1_english.pdf
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259. Rocket and mortar fire by Palestinian armed groups continued unabated throughout
December 2008.136 According to Israeli sources, 71 rockets and 59 mortars were fired into Israel
between 1 and 18 December.137 The number of rockets and mortars fired from the Gaza Strip
into Israel spiked,138 following the killing by the Israeli armed forces of an Islamic Jihad
commander in the West Bank on 15 December 2008.139 One of the rockets launched from the
Gaza Strip on 17 December 2008 struck the car park of a shopping centre in Sderot, injuring
three people and causing significant damage to property.140
260. On 2 December 2008, the Israeli air force killed two Palestinian children and seriously
injured two others when one of its aircraft fired a missile at a group of Palestinian children who
were sitting in a street near Rafah. An Israeli military spokesman admitted responsibility for the
attack and claimed that it was targeting members of Palestinian armed groups. Eyewitnesses
informed the Palestinian Centre for Human Rights (PCHR) that the victims were civilians.141
261. On 5 December 2008, an Israeli aircraft fired a missile at members of what PCHR
described as “activists of the Palestinian resistance” in Jabaliyah refugee camp in the northern
Gaza Strip, seriously wounding one person.142 On 18 December, an Israeli air strike killed a man
in Beit Lahia.143 The same day, Israeli aircraft attacked a car maintenance workshop in the city
136 See, for example, JTA, “Kassams fired again from Gaza”, 3 December 2008, available at:
http://jta.org/news/article-print/2008/12/03/1001316/attacks-from-gaza-
increase?TB_iframe=true&width=750&height=500; JTA, “Rockets barrage Israel over weekend”, 7 December
2008, available at: http://jta.org/news/article-print/2008/12/07/1001377/rockets-barrage-israel-over-
weekend?TB_iframe=true&width=750&height=500; JTA, “Three injured in Kassam attack”, 17 December 2008,
available at: http://jta.org/news/article/2008/12/17/1001621/more-kassams-rain-on-israel#comment_72450; and
JTA, “Kassam rocket hits Sderot home”, 21 December 2008, available at:
http://jta.org/news/article/2008/12/21/1001713/kassam-rocket-hits-sderot-home
137 “Summary of rocket fire…”.
138 Ibid.
139 JTA, “Kassams hit Israel after terrorist killed”, 16 December 2008, available at: http://jta.org/news/article-
print/2008/12/16/1001575/kassams-hit-israel-after-terrorist-killed?TB_iframe=true&width=750&height=500
140 “Three injured…”.
141 PCHR, “Weekly report on Israeli human rights violations in the Occupied Palestinian Territory”, No. 48/2008
(24 November – 3 December 2008), available at: http://www.pchrgaza.org/files/W_report/English/2008/04-12-
2008.htm
142 PCHR, “Weekly report on Israeli human rights violations in the Occupied Palestinian Territory”, No. 49/2008
(4–17 December), available at: http://www.pchrgaza.org/files/W_report/English/2008/18-12-2008.htm. The Mission
notes the lack of clarity as to whether these were armed members of the Palestinian armed groups or civilians.
143 Al-Jazeera, “Israeli missile kills Gaza man”, 18 December 2008, available at:
http://english.aljazeera.net/news/middleeast/2008/12/2008121721428340460.html
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of Khan Yunis in the southern Gaza Strip. The workshop was destroyed and a number of nearby
houses were damaged.144
262. On 18 December 2008, the Gaza authorities declared that the truce was at an end and
would not be renewed on the grounds that Israel had not abided by its obligations to end the
blockade on Gaza.145
263. On 21 December 2008, a rocket hit a house in Sderot and a foreign worker was injured as
a result of a rocket striking Ashkelon.146 Israel responded with air strikes into Gaza City,
wounding a Palestinian infant in her home.147 Israel’s Prime Minister and Defense Minister
stated that Israel would no longer practise restraint following the rocket attacks.148
264. On 22 December 2008, a 24-hour ceasefire was declared at Egypt’s request. Three
rockets and one mortar were launched from Gaza that day. Israel opened the border to allow a
limited amount of humanitarian aid to enter Gaza.149
265. By 23 December 2008, rocket and mortar fire was again increasing significantly; 30
rockets and 30 mortars were fired into Israel on 24 December 2008.150 The Israeli armed forces
continued to conduct air strikes on positions inside Gaza and the crossings into Israel remained
closed. On 26 December 2008, a rocket launched from Gaza fell short and hit a house in northern
Gaza killing two girls, aged 5 and 12.151
266. The intensified closure regime on the Gaza crossings which began in November
continued in December, with imports restricted to very basic food items and limited amounts of
fuel, animal feed and medical supplies. According to OCHA, many basic food items were no
144 PCHR, “Weekly report on Israeli human rights violations in the Occupied Palestinian Territory”, No. 50/2008
(18–23 December 2008), available at: http://www.pchrgaza.org/files/W_report/English/2008/24-12-2008.htm
145 Reuters, “Hamas declares end to ceasefire with Israel in Gaza”, 18 December 2008, available at:
http://www.reuters.com/article/topNews/idUSLI75623220081218
146 “Kassam rocket…”.
147 “Weekly report…”, No. 50/2008.
148 “Kassam rocket…”.
149 JTA, “Hamas curtails launching rockets for 24 hours”, 22 December 2008, available at:
http://jta.org/news/article-print/2008/12/22/1001726/hamas-stops-lauching-rockets-for-24-
hours?TB_iframe=true&width=750&height=500; “Summary of rocket fire…”.
150 “Summary of rocket fire…”.
151 Fox News, “Palestinian rockets kill 2 schoolgirls in Gaza”, 26 December 2008, available at
http://www.foxnews.com/story/0,2933,473066,00.html
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longer available and negligible amounts of fuel were allowed to enter Gaza. This resulted in the
health sector in Gaza deteriorating further into a critical condition, with hospitals continuing to
face problems as a result of power cuts, low stocks of fuel to operate back-up generators, lack of
spare parts for medical equipment and shortages of consumables and medical supplies.152 On 18
December 2008, UNRWA once again suspended its food distribution programme for the rest of
the month, owing to shortages.153
267. On 27 December 2008, Israel started its military operations in Gaza.154
IV.
APPLICABLE LAW
268. The Mission’s mandate covers all violations of international human rights law (IHRL)
and international humanitarian law (IHL) that might have been committed at any time, whether
before, during or after, in the context of the military operations that were conducted in Gaza
during the period from 27 December 2008 to 18 January 2009. The Mission has therefore carried
out its task within the framework of general international law, in particular IHRL and IHL.
A.
Self-determination
269. A fundamental element in the legal framework is the principle of self-determination of
peoples, derived from the Charter of the United Nations, Article 1, accepted as constituting
customary international law, and set out as a right of peoples in the two International Covenants
on Human Rights (common article 1 of the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)).
The right of the Palestinian people to self-determination has been affirmed by the General
Assembly and the International Court of Justice in its Advisory Opinion on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory.155 Self-
determination has special prominence in the context of the recent events and military hostilities
152 OCHA, The Humanitarian Monitor, No. 32 (December 2008), available at:
http://www.ochaopt.org/documents/ocha_opt_humanitarian_monitor_2008_12_1_15_english.pdf
153 UNRWA, “UNRWA suspends food distribution in Gaza”, press release (18 December 2008), available at:
http://www.un.org/unrwa/news/releases/pr-2008/gaz_18dec08.html
154 The New York Times, “Israelis say strikes against Hamas will continue”, 28 December 2008, available at:
http://www.nytimes.com/2008/12/28/world/middleeast/28mideast.html?_r=2&hp
155 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9
July 2004, I.C.J. Reports 2004, p. 135, paras. 149, 155 and 159.
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in the region, because they are but one episode in the long occupation of the Palestinian territory.
The right to self-determination has an erga omnes character whereby all States have the duty to
promote its realization. This is also recognized by the United Nations General Assembly, which
has declared that peoples who resist forcible action depriving them of their right to self-
determination have the right to seek and receive support from third parties.156 Those who take
action amounting to military force must comply with IHL.
B.
International humanitarian law
270. All parties to the armed conflict are bound by relevant rules of IHL, whether of
conventional or customary character. International humanitarian law comprises principles and
rules applicable to the conduct of military hostilities and provides for restraints upon the conduct
of military action so as to protect civilians and those that are hors de combat. It also applies to
situations of belligerent occupation.
271. Israel is a party to the four Geneva Conventions of 12 August 1949, but has not ratified
their Additional Protocols I or II on the protection of victims of armed conflict. In addition,
Israel is a party to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects, as well as its Protocol I on Non-Detectable Fragments, both of 10
October 1980.
272. Many of the rules contained in the Fourth Hague Convention respecting the Laws and
Customs of War on Land and the Regulations annexed to it, and the four Geneva Conventions
and their Additional Protocols are now part of customary international law. Israel’s High Court
of Justice has confirmed that Israel must adhere to those rules and principles reflected in the
Fourth Geneva Convention, the Regulations annexed to the Fourth Hague Convention and the
customary international law principles reflected in certain provisions of Additional Protocol I to
the Geneva Conventions of 1949. The Government of Israel accepts that, although it is not a
party to the Additional Protocol I, some of its provisions accurately reflect customary
156 Ibid., para. 156; Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United Nations (General Assembly resolution 2625 (XXV) of 24
October 1970).
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international law.157 Under the rules of State responsibility, Israel is responsible for any
violations of international law attributable to it. Specifically, under the Fourth Geneva
Convention, article 29, “the Party to a conflict in whose hands protected persons may be, is
responsible for the treatment accorded to them by its agents, irrespective of any individual
responsibility which may be incurred.”
273. The legal framework applicable to situations of occupation includes provisions contained
in the Hague Regulations (especially articles 42–56), the Fourth Geneva Convention (especially
articles 47–78) and Additional Protocol I, and customary international law. The successive steps
in the development of that legal framework represent attempts by the international community to
protect human beings better from the effects of war while giving due account to military
necessity.
274. Article 42 of the Hague Regulations, regarded as customary international law,158
prescribes that “territory is considered occupied when it is actually placed under the authority of
the hostile army”. The occupying authority so established shall take all measures in its power “to
restore, and ensure, as far as possible, public order and safety” in the occupied area (art. 43).
These provisions call for an examination of whether there was exercise of authority by Israel in
the Gaza Strip during the period under investigation.
275. While the drafters of the Hague Regulations were as much concerned with protecting the
rights of the State whose territory is occupied as with protecting the inhabitants of that territory,
the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians
(“protected persons”159) in times of war regardless of the status of the occupied territories.160
That the Fourth Geneva Convention contains requirements in many respects more flexible than
the Hague Regulations and thus offering greater protections was recognized by the International
Criminal Tribunal for the former Yugoslavia in the Naletelic case, where the Trial Chamber
applied the test contained in article 6 of the Fourth Geneva Convention: the protections provided
157 “The operation in Gaza…”, para. 31.
158 Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment of 19 December 2005, I.C.J. Reports 2005, para. 172; Legal Consequences…, para. 78.
159 Under the Fourth Geneva Convention, protected persons are those who, at a given moment and in any manner
whatsoever, find themselves in the hands of a party to the conflict or occupying Power of which they are not
nationals.
160 Legal Consequences…, para. 95.
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for in the Fourth Geneva Convention become operative as soon as the protected persons fall “in
the hands” of a hostile army or an occupying Power, this being understood not in its physical
sense but in the broader sense of being “in the power” of a hostile army. The Trial Chamber
concluded that: “the application of the law of occupation as it effects ‘individuals’ as civilians
protected under Geneva Convention IV does not require that the occupying Power have actual
authority”.161
276. Israel has without doubt at all times relevant to the mandate of the Mission exercised
effective control over the Gaza Strip. The Mission is of the view that the circumstances of this
control establish that the Gaza Strip remains occupied by Israel. The provisions of the Fourth
Geneva Convention therefore apply at all relevant times with regard to the obligations of Israel
towards the population of the Gaza Strip.
277. Despite Israel’s declared intention to relinquish its position as an occupying Power by
evacuating troops and settlers from the Gaza Strip during its 2005 “disengagement”,162 the
international community continues to regard it as the occupying Power.163
278. Given the specific geopolitical configuration of the Gaza Strip, the powers that Israel
exercises from the borders enable it to determine the conditions of life within the Gaza Strip.
Israel controls the border crossings (including to a significant degree the Rafah crossing to
Egypt, under the terms of the Agreement on Movement and Access164) and decides what and
who gets in or out of the Gaza Strip. It also controls the territorial sea adjacent to the Gaza Strip
and has declared a virtual blockade and limits to the fishing zone, thereby regulating economic
activity in that zone. It also keeps complete control of the airspace of the Gaza Strip, inter alia,
through continuous surveillance by aircraft and unmanned aviation vehicles (UAVs) or drones. It
makes military incursions and from time to time hit targets within the Gaza Strip. No-go areas
161 Prosecutor v. Naletilić, case No. IT-98-34-T, Decision of 31 March 2003, paras. 219–222.
162 Disengagement Plan – General Outline, Prime Minister’s Office, 15 April 2004, para. 2 (i)(3), available at
www.pmo.gov.il/PMOEng/Archive/Press+Releases/2004/Disengagement+Plan
163 Security Council resolution 1860 (2009) and Human Rights Council resolution S-9/1.
164 This Agreement of November 2005 represents the commitments of the Government of Israel and the Palestinian
Authority. Its implementation and further elaboration will be assisted by the Quartet Special Envoy for
Disengagement and his staff and/or the United States Security Coordinator and his staff. It is available at
http://unispal.un.org/unispal.nsf/b987b5db9bee37bf85256d0a00549525/c9a5aa5245d910bb852570bb0051711c/$FI
LE/Rafah%20agreement.pdf
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are declared within the Gaza Strip near the border where Israeli settlements used to be and
enforced by the Israeli armed forces. Furthermore, Israel regulates the local monetary market
based on the Israeli currency (the new sheqel) and controls taxes and custom duties.
279. The ultimate authority over the Occupied Palestinian Territory still lies with Israel. Under
the law and practice of occupation, the establishment by the occupying Power of a temporary
administration over an occupied territory is not an essential requirement for occupation, although
it could be one element among others that indicates the existence of such occupation.165 In fact,
as shown in the case of Denmark during the Second World War, the occupier can leave in place
an existing local administration or allow a new one to be installed for as long as it preserves for
itself the ultimate authority. Although Israel has transferred to the Palestinian Authority a series
of functions within designated zones, it has done so by agreement, through the Oslo Accords and
related understandings, keeping for itself “powers and responsibilities not so transferred”.166
When Israel unilaterally evacuated troops and settlements from the Gaza Strip, it left in place a
Palestinian local administration. There is no local governing body to which full authority has
been transferred. In this regard, the Mission recalls that the International Court of Justice, in its
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, regards the transfer of powers and responsibilities by Israel under various
agreements with the Palestine Liberation Organization (PLO) as having “done nothing” to alter
the character of Israel as an occupying Power.167
280. Although the essential elements of occupation are present in the Gaza Strip, account must
be taken of the fact that inside Gaza there is a de facto local administration, which carries out the
functions and responsibilities in various areas transferred to the Palestine Authority under the
Oslo Accords, to the extent that it is able to do so in the light of the closures and blockade
imposed by Israel.
281. The developments that have taken place in the past two decades, in particular through the
jurisprudence of international tribunals, have led to the conclusion that the substantive rules
applicable to either international or non-international armed conflicts are converging. The
165 Prosecutor v. Naletilić, para. 217.
166 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 1995, art. I (1).
167 Legal Consequences…, paras. 76–78.
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Mission nonetheless recognizes that certain differences exist in relation to the regime of
enforcement established by treaty law, in particular the regime of “grave breaches” contained in
the Geneva Conventions.
282. Military hostilities took place between the Israeli armed forces and the military wing of
Hamas (al-Qassam Brigades) and of other Palestinian factions, including the al-Aqsa Martyrs’
Brigades, loosely affiliated with the Fatah movement in control of the Palestine Authority. The
Israeli Supreme Court has seen the confrontation between Israeli armed forces and what it calls
“terrorist organizations” active in the Occupied Palestinian Territory as an international armed
conflict on two grounds: the existing context of the occupation and the cross-border nature of the
confrontation.168 Nonetheless, as the Government of Israel suggests, the classification of the
armed conflict in question as international or non-international, may not be too important as
“many similar norms and principles govern both types of conflicts”.169
283. It is common for armed conflicts to present elements of an international as well as of a
non-international character. The rules contained in article 3 common to the four Geneva
Conventions, regarded as customary international law, are the baseline rules applicable to all
conflicts.170 The concern for the protection of civilians and those hors de combat in all kinds of
conflicts has led to an increasing convergence in the principles and rules applicable to
international and non-international armed conflicts, as was authoritatively held by the Appeals
Chamber of the International Criminal Tribunal for the former Yugoslavia in the Tadić case.
Indeed, “what is inhumane, and consequently proscribed, in international wars, cannot but be
inhumane and inadmissible in civil strife.”171 This relates not only to the protection of civilians
but also to both methods and means of warfare.
284. A convergence between human rights protections and humanitarian law protections is
also in operation. The rules contained in article 75 of Additional Protocol I, which reflect
customary law, define a series of fundamental guarantees and protections, such as the
168 The Public Committee against Torture in Israel v. The Government of Israel (Targeted Killings case).
169 “The operation in Gaza…”, para. 30.
170 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p.14.
171 Prosecutor v. Tadić, case No. IT-94-1-AR72, Decision on the defence motion for interlocutory appeal on
jurisdiction of 2 October 1995, para. 119. See also para. 96 ff.
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prohibitions against torture, murder and inhuman conditions of detention, recognized also under
human rights law. These protections apply to all persons in the power of a party to the conflict
“who do not benefit from more favourable treatment” under the Geneva Conventions and its
Protocols.
285. The foregoing customary and conventional humanitarian rules are relevant to the
investigation of the events that occurred in connection with the military operations of December
2008 and January 2009.
C.
International criminal law
286. International criminal law has become a necessary instrument for the enforcement of IHL
and IHRL. Criminal proceedings and sanctions have a deterrent function and offer a measure of
justice for the victims of violations. The international community increasingly looks to criminal
justice as an effective mechanism of accountability and justice in the face of abuse and impunity.
The Mission regards the rules and definitions of international criminal law as crucial to the
fulfilment of its mandate to look at all violations of IHL and IHRL by all parties to the conflict.
287. Crimes under international law are defined in treaties and also in customary international
law. Violations of fundamental humanitarian rules applicable in all types of conflict entail
individual criminal responsibility under customary law.172 They encompass crimes against
humanity, war crimes and genocide. Other crimes not necessarily committed as a war crime or
crime against humanity are torture and enforced disappearance.
288. The four Geneva Conventions of 1949 establish a regime of enforcement through the
definition of grave breaches of some of their provisions relating to protected persons. Grave
breaches are premised on the importance of the value under attack and the seriousness of the act
or omission that constitutes the breach. Article 147 of the Fourth Geneva Convention defines
grave breaches as:
172 Ibid., paras. 128 ff. In paragraph 134, the Appeals Chamber stated: “All of these factors confirm that customary
international law imposes criminal liability for serious violations of common article 3, as supplemented by other
general principles and rules on the protection of victims of internal armed conflict, and for breaching certain
fundamental principles and rules regarding means and methods of combat in civil strife.”
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… those involving any of the following acts, if committed against persons or
property protected by the present Convention: wilful killing, torture or inhuman
treatment, including biological experiments, wilfully causing great suffering or
serious injury to body or health, unlawful deportation or transfer or unlawful
confinement of a protected person, compelling a protected person to serve in the
forces of a hostile Power, or wilfully depriving a protected person of the rights of fair
and regular trial prescribed in the present Convention, taking of hostages and
extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly.
289. Article 146 requires States parties to enact any legislation necessary to provide effective
penal sanctions for persons committing, or ordering to be committed, any of the listed grave
breaches. They are under the obligation “to search for persons alleged to have committed, or to
have ordered to be committed, such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts.”
290. These and other crimes are also listed in the Rome Statute of the International Criminal
Court, article 8 (2) (a) (“grave breaches”) and 8 (2) (b) (“other serious violations of the laws and
customs applicable in international armed conflict”).173
291. War crimes are serious breaches of international humanitarian law that apply to armed
conflicts and entail individual criminal responsibility under treaty or customary law. War crimes
can be committed in the context of armed conflicts of an international character as well as those
of a non-international character. This category of crimes includes and/or overlaps with the grave
breaches as defined in the four Geneva Conventions.
292. War crimes comprise crimes against protected persons (including wilful killing, torture or
other inhuman acts, taking hostages, and collective punishments); crimes against property
(including extensive destruction of property not justified by military necessity and carried out
unlawfully and wantonly, destroying or seizing property of the enemy, pillaging, and declaring
173 The possible application of the Rome Statute to the conflict in Gaza is still being discussed. The validity under its
article 12 (3) of the Palestinian declaration accepting the International Criminal Court’s jurisdiction is being
evaluated by the Office of the Tribunal’s Prosecutor.
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abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of
the hostile party); crimes relating to the use of prohibited methods and means of warfare
(including directing an attack against civilians or civilian objects, launching an attack directed
against legitimate targets if such attack causes excessive incidental civilian casualties or damage
to the environment, improper use of the protective emblems, the use of starvation of civilians as
a method of warfare, use of human shields and acts of terror). In addition, article 8 (2) (b) (iii) of
the Rome Statute defines as a war crime the direct attack against protected personnel,
installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping
mission.
293. Crimes against humanity are crimes that shock the conscience of humanity. The Statutes
of the International Criminal Tribunal for the former Yugoslavia and of the International
Criminal Tribunal for Rwanda provided for the prosecution of crimes against humanity. These
crimes comprise murder, extermination, enslavement, deportation, imprisonment, torture, rape,
persecutions and other inhuman acts when they are part of a widespread or systematic attack
against any civilian population.174 Although under the Statute of the International Criminal
Tribunal for the former Yugoslavia crimes against humanity must be committed in armed
conflict, such a requirement is not part of the customary law definition of the crime.
D.
International human rights law
294. Israel has ratified several of the most important international human rights treaties,
including the International Convention on the Elimination of All Forms of Racial
Discrimination, ICCPR, ICESCR, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the
Convention on the Elimination of All Forms of Discrimination against Women.
295. It is now widely accepted that human rights treaties continue to apply in situations of
armed conflict. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, the International Court of Justice considered that “the
174 See International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Kunarac, case No. IT-96-23,
Judgement of 12 June 2002, para. 85.
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protection offered by human rights conventions does not cease in case of armed conflict, save
through the effect of provisions for derogation….”175
296. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the
International Court of Justice held that, in the context of armed conflict, IHL is lex specialis in
relation to human rights. It is today commonly understood that human rights law would continue
to apply as long as it is not modified or set aside by IHL. In any case, the general rule of human
rights law does not lose its effectiveness and will remain in the background to inform the
application and interpretation of the relevant humanitarian law rule. For instance, the preamble to
Additional Protocol II to the Geneva Conventions recalls the protection of international human
rights for the human person, supporting the view that IHL and IHRL are operative in situations
of conflict.
297. The human rights treaties ratified by Israel are also binding in relation to Israeli conduct
in the Occupied Palestinian Territory. Article 2 of ICCPR obliges each State party to respect and
to ensure to all individuals “within its territory and subject to its jurisdiction” the rights
recognized within it. In the words of the Human Rights Committee, “a State party must respect
and ensure the rights laid down in the Covenant to anyone within the power or effective control
of that State party, even if not situated within the territory of the State party”.176
298. The International Court of Justice has also held that ICCPR applies “in respect of acts
done by a State in the exercise of its jurisdiction outside its own territory”.177 Accordingly, the
Human Rights Committee has considered that ICCPR also applies to the benefit of people within
the Occupied Palestinian Territory.178 The Committees established to monitor compliance with
the International Covenant on Economic, Social and Cultural Rights, the Convention on the
Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination
175 Legal Consequences…, para. 106; see also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion
of 8 July 1996, I.C.J. Reports 1996, p. 226, para. 25.
176 General comment No. 31 (2004), para. 10.
177 Legal Consequences…, para. 111; see also Case concerning Armed Activities…, para. 216.
178 “Concluding observations of the Human Rights Committee” (CCPR/CO/78/ISR).
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against Women by their States parties have equally determined that Israel’s human rights
obligations extend to the population of the Occupied Palestinian Territory.179
299. The Mission also notes that Israel has not derogated from its obligations under article 4
of ICCPR. Israel’s declaration made upon ratification of the Covenant only concerns derogations
to article 9 of ICCPR, regarding deprivation of liberty. The state of emergency in Israel has been
in force ever since it was proclaimed in 1948. ICESCR does not explicitly allow for derogations
in time of public emergency or war.
300. Contemporary interpretation of the Hague Regulations has taken a progressive view on
the scope of their application. The International Court of Justice, when concluding that Uganda
was the occupying Power in the Ituri region in the Democratic Republic of the Congo, also held
that Uganda’s obligation to “restore, and ensure, as far as possible, public order and safety”
included “the duty to secure respect for the applicable rules of international human rights law
and international humanitarian law”.180
301. In relation to the application of human rights law during the military operations and to the
connected events, the Mission wishes to briefly address four issues of legal significance.
302. The first is the impact of the inauguration in 1995 of limited Palestinian self-government
and the evacuation of the Gaza Strip by Israel in 2005 on Israel’s international obligations.
United Nations human rights treaty bodies have continued to hold Israel responsible for
implementing its human rights treaty obligations in the Occupied Palestinian Territory after the
establishment of Palestinian self-government bodies.181 Those bodies have not drawn any
distinction between Gaza and the West Bank in this regard, the Occupied Palestinian Territory
being regarded as a single unit. In its Advisory Opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice
succinctly addressed the question by noting that, under the International Covenant on Economic,
Social and Cultural Rights, Israel is “under an obligation not to raise any obstacle to the exercise
179 See, for instance, “Concluding observations of the Committee on Economic, Social and Cultural Rights”
(E/C.12/1/Add.90).
180 Case concerning Armed Activities…, para. 178.
181 For instance, in its 2003 concluding observations, the Committee on Economic, Social and Cultural Rights
reiterated “its regret at the State party's refusal to report on the occupied territories” (E/C.12/1/Add.90, para. 15).
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of such rights in those fields where competence has been transferred to Palestinian
authorities”.182 In a recent report about Gaza, nine special procedures of the Human Rights
Council considered that the unilateral disengagement from the Gaza Strip does not relieve Israel
“from complying with its human rights obligations towards the population of that territory; Israel
remains bound to the extent that the measures it adopts affect the enjoyment of human rights of
the residents of the Gaza Strip.”183
303. Israel most recently argued before the Committee against Torture that it no longer had
human rights obligations under the Convention with regard to Gaza due to the effect of the 2005
“disengagement”. In rejecting the argument, the Committee stated “the State party maintains
control and jurisdiction in many aspects on the occupied Palestinian territories.”184 The Mission
agrees that transferring powers and functions to self-governing bodies does not exempt Israel
from its obligations to guarantee human rights to people within its jurisdiction or under its
effective control. Israel would also have a duty to refrain from actions that obstruct efforts by
Palestinian self-governing bodies to guarantee the enjoyment of human rights in the Occupied
Palestinian Territory and should facilitate that action.
304. A second issue relates to the human rights obligations of the Palestinian Authority, the de
facto authority in the Gaza Strip and other political and military actors. As non-State actors, the
question of their human rights obligations must be addressed. It should be noted that the same
issue does not arise with regard to IHL obligations, the question being settled some time ago. As
the Special Court for Sierra Leone held, “it is well settled that all parties to an armed conflict,
whether States or non-State actors, are bound by international humanitarian law, even though
only States may become parties to international treaties.” 185
305. The relationship between IHL and IHRL is rapidly evolving, in particular in relation to
non-State actors’ obligations, with the ultimate goal of enhancing the protection of people and to
enable them to enjoy their human rights in all circumstances. In the context of the matter within
182 Legal Consequences…, para. 112.
183 A/HRC/10/22, para. 20.
184 “Concluding observations of the Committee against Torture” (CAT/C/ISR/CO/4, para. 11).
185 See for instance, Prosecutor v. Sam Hinga Norman, case SCSL-2004-14-AR72(E), Decision on preliminary
motion based on lack of jurisdiction (child recruitment) (31 May 2004), para. 22.
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the Mission’s mandate, it is clear that non-State actors that exercise government-like functions
over a territory have a duty to respect human rights.
306. The Mission notes that the Palestinian Authority, through its public undertakings as well
as those of the Palestine Liberation Organization (PLO) and the Palestinian Legislative Council,
has declared its commitment to respect international human rights law in several instances,
including in the context of international agreements. This commitment is also contained in the
Palestinian Basic Law.186
307. The obligations of the Gaza authorities may be viewed through a different lens but
leading to the same result. The Gaza authorities also reiterated to the Mission their commitments
to respect human rights. Hamas has also made a series of unilateral declarations of respect for
human rights. Furthermore, the Palestinian Basic Law with its many human rights provisions
also applies in the Gaza Strip.187
308. A third issue to be addressed here relates to the right to self-determination and its
application to the definition of combatant status and its impact on the principle of distinction.
Armed conflicts opposing national liberation movements and/or resistance movements against
colonialism and occupation are regarded as international armed conflicts by Additional Protocol
I, article 1 (4). Under international law, notably Additional Protocol I to the Geneva
Conventions, any action of resistance pursuant to the right to self-determination should be
exercised with full respect of other human rights and IHL.
186 Legal Consequences…, para. 91; A/HRC/10/22, para. 21; Barcelona Declaration, 27–28 November 1995,
available at: http://www.euromedrights.net/281. The Palestinian Basic Law can be found at
http://www.palestinianbasiclaw.org/2002-basic-law. See also “Report of the High Commissioner for Human Rights
on the implementation on Human Rights Council resolution 7/1” (A/HRC/8/17, para. 8).
187 Meeting and correspondence with the Mission. In this respect nine special procedures mandate holders have
stated: “non-State actors that exercise government-like functions and control over a territory are obliged to respect
human rights norms when their conduct affects the human rights of the individuals under their control”
(A/HRC/10/22, para. 21). This view follows the statement in the same line by four other special procedures mandate
holders who visited Lebanon in the aftermath of the 2006 war: “Although Hezbollah, a non-State actor, cannot
become a party to these human rights treaties, it remains subject to the demand of the international community, first
expressed in the Universal Declaration of Human Rights, that every organ of society respect and promote human
rights … It is especially appropriate and feasible to call for an armed group to respect human rights norms when it
exercises significant control over territory and population and has an identifiable political structure.” (A/HRC/2/7,
para. 19). See also A/HRC/10/22, para. 9.
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309. Finally, it is also useful to briefly recall that States not party to an armed conflict have
responsibilities and a crucial role to play for the protection of civilians and those hors de combat
and for the protection of their rights. Under article 1 common to the Geneva Conventions 1949,
the “High Contracting Parties undertake to respect and to ensure respect for the present
Convention in all circumstances.” This provision entails obligations not only in relation to actors
and conduct within the jurisdiction of each State but also in relation to the international
enforcement of the Conventions. States parties to the Geneva Conventions also have the
obligation to facilitate the passage of humanitarian relief and a role to play in the provision of
such assistance for the protected population in case of need (articles 23 and 59 of the Fourth
Geneva Convention).
310. To conclude, the Mission wishes to emphasize that all parties to an armed conflict have
the obligation to respect the enjoyment of human rights by all.
PART TWO: OCCUPIED PALESTINIAN TERRITORY
GAZA STRIP
Section A
V.
THE BLOCKADE: INTRODUCTION AND OVERVIEW
311. The military operations of 28 December to 19 January 2009 and their impact cannot be
fully evaluated without taking account of the context and the prevailing living conditions at the
time they began. In material respects, the military hostilities were a culmination of the long
process of economic and political isolation imposed on the Gaza Strip by Israel, which is
generally described as a blockade. This chapter provides an overview of the blockade, while
chapter XVII provides a detailed analysis of the cumulative impact of the blockade and the
military operations on the people in Gaza and their human rights.
312. The series of economic and political measures imposed against the Gaza Strip began
around February 2006 with the Hamas electoral victory in the legislative elections. This was also
accompanied by the withholding of financial support for the Gaza Strip by some donor countries
and actions of other countries that amounted to open or tacit support of the Israeli blockade.
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Hamas took over effective power in the Gaza Strip on 15 June 2007. Shortly thereafter Israel
declared the Gaza Strip a “hostile territory,”188 enacting a series of economic, social and military
measures purportedly designed to isolate and strangle Hamas. These have made a deep impact on
the population’s living standards.
313. The blockade comprises measures such as the closure of border crossings, sometimes
completely for a number of days, for people, goods and services, and for the provision of fuel
and electricity. The closure has had severe effects on trade and general business activity,
agriculture and industry in the Gaza Strip. Electricity and fuel that are provided from Israel are
essential for a broad range of activities from business to education, health services, industry and
agriculture. Further limits to the fishing area in the sea adjacent to the Gaza Strip were fixed and
enforced by Israel, negatively impacting on fishing activities and the livelihood of the fishing
community. Israel also established a buffer zone of variable and uncertain width along the
border, together with a sizeable no-go area in the northern part of the Gaza Strip where some
Israeli settlements used to be situated. This no-go area is in practice an enlarged buffer zone in
the northern part of the Gaza Strip where people cannot go. The creation of the buffer zone has
forced the relocation of a number of factories from this area closer to Gaza City, causing serious
environmental concerns and potential health hazards for the population. People’s movements
have also been drastically restricted, with only a few businesspeople allowed to cross on a very
irregular and unpredictable basis.
314. Because of the occupation, which created so many ties of dependence, and for other
geographic, political and historical reasons, the availability of goods and services as well as the
carrying-on of daily life in the Gaza Strip are highly dependent on Israel and its policies
regarding the area. Food and other consumable items as well as fuel, electricity, construction
materials and other items are traded from or through Israel. Israel also serves as the
communication channel for the population of Gaza with the rest of the Occupied Palestinian
Territory and the world, including for purposes of education and exchange programmes. There
are five crossing points between Israel and the Gaza Strip: Erez (basically dedicated to the transit
188
http://www.mfa.gov.il/MFA/Government/Communiques/2007/Security+Cabinet+declares+Gaza+hostile+territory+
19-Sep-2007.htm
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of people), Nahal Oz (for fuel), Karni (for grains), Kerem Shalom (for goods) and Sufa (for
goods). Israeli control of these crossings has always been restrictive for the Gaza population.
Since the beginning of the blockade, and particularly during and after the military operation, not
only has the measure of restriction increased, but control has been exercised arbitrarily, resulting
in uncertainty of access even for those items purportedly allowed entry by Israel.
315. Movement of people through the Erez crossing to Israel and the Rafah crossing to Egypt
has been almost completely blocked. Exceptions include unpredictable and irregular permission
for emergency medical evacuations, access to diplomats and international humanitarian staff and
only limited access to some businesspeople.
316. The movement of goods has been restricted to imports of basic humanitarian supplies
through the Kerem Shalom crossing point as well as to a limited quantity of fuel. The quantities
of goods allowed into the Gaza Strip have not only been insufficient to meet local demands, they
also exclude several items essential for the manufacturing of goods and the processing of food
products, as well as many other goods that are needed. This is compounded by the unpredictable
way in which crossings are managed. Neither the list of items allowed into the Gaza Strip nor the
criteria for their selection are made known to the public.
317. Before the military operation, the blockade had resulted in a significant reduction in the
number of trucks allowed through the crossings. The number of trucks is considered a fair
measure of the amount of imports into or exports from the Gaza Strip. This number increased
slightly during the period of calm between June and November 2008, but declined sharply again
in November, due to the resumption of hostilities following the Israeli military incursion. The
daily average of truckloads crossing the border in November–December 2008 was between 23
and 30, but it increased after the start of military hostilities to up to five times that number during
January 2009.189 However, at no time was it close to what it had been prior to June 2007 or to the
amount actually necessary to meet the needs of the population.
318. The 2005 Agreement of Movement and Access called for a daily flow of some 400 trucks
in and out of Gaza by the end of 2006, which was already lower than before the second intifada,
189 OCHA, The Humanitarian Monitor, No. 33 (January 2009).
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but not even that level was ever reached.190 Information supplied to the Mission reveals that
imports into and exports from the Gaza Strip before the closure in 2007 reached a monthly
average of 10,400 and 1,380 truckloads, respectively. This declined to about 2,834 truckloads of
imports and no exports after the recent military operations. Immediately after the operations,
there was only one isolated instance in which exports of flowers were allowed from the Gaza
Strip in March 2009. Some 134 truckloads of cash crops were exported in total between June
2007 and May 2009.191
319. In effect, economic activity in the Gaza Strip was severely affected because of the
blockade. Since the military operation, the economy has almost come to a standstill. The private
sector, particularly the manufacturing industry, has suffered irreparable damage.
320. The blockade and freeze on the movement of goods imposed by Israel have spurred a
black market economy in the Gaza Strip that provides basic consumables but is unreliable and
unaffordable for the majority of the people. The tunnels built under the Gaza-Egypt border have
become a lifeline for the Gaza economy and the people. Increasing amounts of fuel (benzine and
diesel) come through those tunnels as well as consumables. While for the Gaza population this is
a necessary means of survival in the circumstances, the black market is likely to hold back
economic recovery and sustainability, even when the blockade is lifted.
321. The blockade has also included measures relating to access to the sea and airspace. Under
the Oslo Accords, the fishing zone limit was set at 20 nautical miles. However, Israel set the
limit unilaterally at 6 nautical miles and maintained this limit from October 2006 to January
2009, when it further restricted it to 3 nautical miles. The only airfield in Gaza has been closed
and a project to rebuild the small airport was suspended after the seizure of power by Hamas.
Israel keeps total control over Gaza’s airspace.
322. In mid-December 2008, following an Israeli military incursion into the Gaza Strip and
rockets fired into Israel by Hamas, all the crossings were totally closed for eight days.192 Other
190 International Labour Office, “The situation of workers in the occupied Arab territories”, Report of the Director-
General to the International Labour Conference, 98th session, 2009, appendix, para. 24.
191 Information submitted by PalTrade, “Gaza private sector status”, 18 June 2009. The Mission also acknowledges
the information provided by the Palestinian Authority in its reply to questions from the Mission, 5 august 2009.
192 The Humanitarian Monitor, No. 32.
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military or militant activities in areas near the crossings have also led to total closures over
certain periods of time. Total and partial closures have significantly contributed to an emergency
situation that became a full-fledged humanitarian crisis after the military operations of December
2008–January 2009. During December 2008, UNRWA had to suspend its delivery of food
assistance due to the total depletion of its food stocks. Other humanitarian agencies had to reduce
or postpone delivery of food and other forms of assistance. The unavailability of banknotes as a
result of an Israeli prohibition also prevented humanitarian agencies from implementing “cash
for work” or similar programmes over lengthy periods of time.193
323. The implementation of the restrictive measures as part of the blockade of the Gaza Strip
created not only an emergency situation but also significantly weakened the capacities of the
health, water and emergency sectors in Gaza to adequately respond to a worsening situation.194
The impact on the local economy further reduced the resilience and coping capacities of the local
population and has aggravated the effects of the war on livelihoods and living standards (see
below, chap. XVII).
324. The Mission asked the Government of Israel to provide information in relation to the
blockade on the Gaza Strip. It requested information on the criteria applied to determine which
good are or are not allowed to enter the Gaza Strip, the reasons for restricting or preventing cash
and bank transfers, the reasons for imposing restrictions on the ability of Gazans to leave the
Gaza Strip, including for urgent medical reasons, the reasons for the highly restrictive policy
permit applied to international donors, humanitarian and human rights organizations wishing to
enter the Gaza Strip, and the reasons and legal basis for establishing a limited fishing zone. No
reply was received on any of these questions.
325. The legality of some of the measures imposed by the Government of Israel (the reduction
in the supply of electricity and fuel) was the subject of a petition to the Supreme Court of
Israel.195 The petitioners comprised a group of NGOs operating within Israel together with
193 The Humanitarian Monitor, No. 32, p. 5.
194 This impact was noted and analysed in “Report of the high-level fact-finding mission to Beit Hanoun established
under Council resolution S-3/1” (A/HRC/9/26, paras. 55 ff).
195 Jaber Al-Bassiouni Ahmed et al. v. Prime Minister and Minister of Defense, case No. 9132/07, Judgement of 30
January 2008, available at http://elyon1.court.gov.il/Files_ENG/07/320/091/n25/07091320.n25.pdf
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Palestinian citizens and groups who argued that the planned cuts in the supply of fuel and
electricity were inconsistent with the obligations of Israel under the Fourth Geneva Convention
relating to the protection of civilians.196 The Court’s ruling recognizes that Israel has obligations
under humanitarian law vis-à-vis the Gaza Strip under which the intended supply of fuel and
electricity was considered “capable of satisfying the essential humanitarian needs of the Gaza
Strip at the present”. The Court, however, did not indicate what would constitute “essential
humanitarian needs” and appears to have left those details for the authorities to determine.
326. The Mission holds the view that Israel continues to be duty-bound under the Fourth
Geneva Convention and to the full extent of the means available to it to ensure the supply of
foodstuff, medical and hospital items and others to meet the humanitarian needs of the
population of the Gaza Strip without qualification. Furthermore, the Mission notes the
information it received regarding the lack of compliance by the Government of Israel even with
the minimum levels set by the Israeli Court, and in this regard observes that the Government
retains wide discretion about the timing and manner of delivering fuel and electricity supplies to
the Gaza Strip, and that this discretion appears to have been exercised capriciously and
arbitrarily.
VI.
OVERVIEW OF MILITARY OPERATIONS CONDUCTED BY ISRAEL IN
GAZA BETWEEN 27 DECEMBER 2008 AND 18 JANUARY 2009 AND DATA ON
CASUALTIES
327. This chapter provides an overview for the purposes of identifying the key parties in the
conduct of the military operations and their dynamics, and to indicate which incidents occurred
during those phases which are the subject of detailed analysis in this report. The focus is on the
Israeli military operations in Gaza.
A.
The parties relevant to the conduct of military activities in Gaza between 27
December 2008 and 18 January 2009
196 Petition to stop electricity and fuel cuts to the Gaza Strip, 28 November 2007. The petition, related affidavits,
excerpts from the State's answers and excerpts from the Court’s decision are all available at:
http://www.gisha.org/index.php?intLanguage=2&intSiteSN=110&intItemId=742
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1.
The Israeli armed forces
328. The information available shows that Israel deployed its navy, air force and army in the
operation it codenamed “Operation Cast Lead”.
329. The navy was used in part to shell the Gaza coast during the military operations.
330. The air force was also used throughout the military operations in a way that appears in its
own view to have been innovative. Having been responsible for the vast majority of operational
activities in the first week, it continued to play an important role in assisting and covering the
ground forces from 3 January to 18 January 2009.197
331. The army was responsible for the ground invasion, which began on 3 January 2009. The
available information indicates that the Golani, Givati and Paratrooper Brigades and five
Armoured Corps Brigades were involved. Assaults on three fronts with combined armour and
infantry brigades were also augmented by specialist Arabic-language, intelligence and, in
particular, combat engineer troops. The engineer troops equipped with armoured D-9 bulldozers
were also trained in operations to counter improvised explosive devices (IEDs). Forward
elements of these attack formations could rely on direct support from the air force to call air
strikes or to direct them, to call in helicopter missile attacks and to direct their own attached
missile-mounted UAVs.198
2.
Palestinian armed groups
332. The Palestinian armed factions operating in the Gaza Strip, and claiming responsibility
for the majority of the rocket and mortar launchings, are the Hamas’ Izz ad-Din al-Qassam
Brigades,199 the al-Aqsa Martyrs’ Brigades, the Islamic Jihad, the Abu Ali Mustafa Brigades,200
197 See Anthony H. Cordesman, “The ‘Gaza war’: A strategic analysis”, Centre for Strategic and International
Studies (2009), p. 41.
198 Alon Ben-David, "Israeli offensive seeks 'new security reality' in Gaza", Jane's Defence Weekly, 8 January 2009;
Jane’s 'Sentinel' Services, “Country Risk Assessments – Israel”, 4 February 2009.
199 Named after a Syrian who worked with displaced Palestinians in what is now northern Israel, and died in a clash
with British troops in 1935, sparking the 1936–39 Palestinian revolt.
200 The Abu Ali Mustafa Brigades claimed responsibility for launching 177 rockets and 115 mortars on several
towns and villages inside Israel during the period of the military operations in Gaza.
See http://www.kataebabuali.ps/inf2/articles-action-show-id-223.htm
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which are the military wing of the Popular Front for the Liberation of Palestine (PFLP), and al-
Naser Salah ad-Din Brigades, which are the military wing of the Popular Resistance Committees
(PRC).201 PRC is a coalition of different armed factions that oppose what they perceive as the
Palestinian Authority’s and Fatah’s conciliatory approach towards Israel.
B.
The phases of the hostilities
1.
Air phase202
333. The Israeli armed forces began the military operations with a week-long air attack, from
27 December until 3 January 2009. One study suggests that they had drawn up a list of 603
targets to be hit as they belonged to Hamas suspects or were part of what Israel viewed as the
Hamas infrastructure. The study claims that a senior Israeli officer reported that all 603 targets
had been hit before the end of the fourth day of the aerial operations in the first week. Officially,
the spokesman of the Israeli forces claimed that 526 targets had been hit by 31 December
2008.203
334. An analysis of the strikes in a report of the Palestinian Centre for Human Rights gives the
following breakdown:
IOF
sea
houses;
private
institutions.
the
Council,
agricultural
in
201 During the period of the military operations in Gaza, al-Naser Salah ad-Din Brigades claimed responsibility for
the launching of 132 rockets and 88 mortars. See http://www.moqawmh.com/moqa/view.php?view=1&id=300
202 Although principally recognized as an aerial phase, there was a significant contribution from the Israeli navy not
only in the first week.
203 Cordesman, op. cit., p. 30.
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The
three
335. Of the incidents addressed in detail in this report, the following occurred during this
phase:
•
The attack on Arafat City Police Station;
•
Attacks on four other police stations, one in Deir al-Balah and three in Gaza City;
•
The attack on the Palestinian Legislative Council building and the Ministry of
Justice;
•
The attack on Gaza main prison in the al-Sarayah complex, Gaza City.
336. Israeli air force activities continued throughout the military operations. In total, it has
been suggested that between 2,300 and 3,000 sorties were flown.205
2.
The air-land phase
337. Around 3 January 2009 Israeli ground troops entered Gaza from the north and east. One
study suggests that “the war was fought largely by the southern Command using brigade teams
that operated with a high degree of independence and freedom to adapt and innovate”.206
338. One of the key initial objectives described by one soldier involved was to divide the Gaza
Strip into two parts, i.e. to split and fragment it, with Nitzarim constituting the midpoint.207 The
division therefore ran from the Karni crossing point to the coast in a south-westerly direction.
After creating the split, the Israeli armed forces concentrated all of their ground forces in the
north. Targets in the south were hit from the air, such as in Rafah.
339. At least in the initial phase it appears forces from the Givati Brigade entered from the
east and approached Gaza City from the south. It is understood that forces from the Armoured
204 PCHR, “Weekly report on Israeli human rights violations in the Occupied Palestinian Territory”, No. 51/2008
(24–31 December 2008), available at:
http://www.pchrgaza.org/files/W_report/English/2008/pdf/weekly%20report%2051.pdf
205 Cordesman, op. cit., p. 41. He cites Lt. Gen. Ashkenazi saying that the air force flew 2,300 successful air strikes
but notes other senior officials told him the real number was closer to 3,000.
206 Ibid., p. 39
207 Breaking the Silence, Soldiers’ Testimony from Operation Cast Lead, Gaza 2009, testimony 20, p. 48, available
at: http://www.breakingthesilence.org.il/oferet/ENGLISH_oferet.pdf.
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Corps Brigade also operated in this area but probably at a later stage.208 Zeytoun, on the southern
outskirts of Gaza, took the brunt of these brigade operations, with incidents of attacks on the
civilian population.
340. It appears that those with primary responsibility in the north of Gaza, especially around
Beit Lahia and al-Atatra, included forces from the Golani Brigade.
341. The forces focusing on the area between Gaza City and the northern section, especially in
Jabaliyah, appear to have been drawn largely from the Paratrooper Brigade.
342. The movement into the south of Gaza City reached at least as far as Zeytoun on 3 January
2009. Some of the troops entering there on that day appear to have been brought in by helicopter
rather than arriving by land. Israeli armed forces maintained a presence in Zeytoun until the final
withdrawal.209 It is understood that the original forces that entered Zeytoun were at least partially
replaced by other troops at some point, but it is not known if any of the original forces remained
in the area throughout the period.210
343. In the other brigade areas regular troops were augmented or replaced by reservists who
were called up after the initial ground attacks.
344. Zeytoun was an area of particularly intense action by Israeli forces, yet there are almost
no indications of armed resistance in the area at the time.211
345. Among the issues of particular concern to the Mission in Zeytoun are the killings of the
Samouni family, the mass destruction in the area, including the systematic demolition of the
Sawafeary chicken farms, and the air strike that killed 22 members of the al-Daya family.
346. The forces in Zeytoun also appear to have been responsible for the push towards the area
around Tal el-Hawa and Rimal in the south-west of Gaza City, about three kilometres from
Zeytoun. The Mission has information that indicates that tanks took up positions in and around
208 Soldiers’ Testimony …, testimony 2, p. 9.
209 See accounts of the attack on the Sawafeary chicken farm attack in chapter XIII and the taking of the Juha house
in Zaytoun in chapter IX.
210 Soldiers’ Testimony …, testimony 2, p. 9.
211 See Jerusalem Center for Public Affairs, “The hidden dimension of Palestinian war casualties in operation ‘cast
lead’: Hamas fire on Palestinian areas”, by Lt. Col. (res.) Jonathan Dahoah Halevi.
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Tal el-Hawa around 4 and 5 January. Sources indicate that there was a presence there throughout
the hostilities, as also evidenced by the artillery fire from around this area on 14 and 15 January
on the compound of the United Nations Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA) and al-Quds hospital, both of which the Mission addresses in detail.
347. The forces responsible for the execution of the Israeli plan in the north-east of the Gaza
Strip included the Golani Brigade. Among the areas of special concern in this regard are al-
Atatra and Beit Lahia. Various witnesses indicate that in the past there has at times been some
armed presence in the area. Information taken from websites apparently belonging to Palestinian
armed groups indicates that these were areas of some resistance. The Mission heard from several
witnesses about the scale of the destruction that occurred there as a result of artillery fire after the
ground phase began on 3 January. Information indicates a sustained attack with aerial and
artillery fire from 3 to 8 January. The Mission addresses a number of particular cases that
occurred in this context, such as the alleged use of human shields, the alleged widespread
mistreatment of civilians, including detentions, and transfers of large numbers to Israeli prisons
in unlawful circumstances.
348. In the Jabaliyah area, located between Beit Lahia and Gaza City, the Mission understands
that at least for part of the time there was a significant presence of the Paratrooper Brigade.212 At
the beginning of the ground phase it is noted that an Israeli projectile struck the al-Maqadmah
mosque, killing at least 15 civilians. A few days later the al-Fakhura Street incident occurred in
the same area when a series of mortars fired by the Israeli armed forces killed at least 35 people.
349. Around 15 January the Israeli armed forces began withdrawing from their positions in the
main areas described above. As they did so, there appeared to be a practice of systematically
demolishing a large number of structures, including houses, water installations, such as tanks on
the roofs of houses, and of agricultural land. A renewed aerial phase in Rafah was also
conducted in the last few days of the military operations. Whereas the strikes in the first week
appear to have been relatively selective, the last few days saw an increase in the number of
212 See, for example, Haartez, “IDF investigation shows errant mortar hit UN building in Gaza”, 11 January 2009,
available at: http://www.haaretz.com/hasen/spages/1054284.html
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strikes with several hundred targets hit, causing not only very substantial damage to buildings
but also, according to some, underground structural damage.213
Data on casualties during the Israeli military operations in Gaza from 28 December 2008 to
17 January 2009
1.
Palestinian casualties
350. The Mission received statistics on the fatalities of the military operations from the Gaza
authorities, specifically from the Central Commission for Documentation and Pursuit of Israeli
War Criminals (TAWTHEQ),214 as well as from PCHR,215 Al Mezan216 and B’Tselem.217 The
first three also provided lists of all the persons killed in the military operations, with their names,
sex, age, address, occupation, and place and date of the fatal attack. Another NGO, Defence for
Children International – Palestine Section,218 provided a list of all the children killed.
351. The three lists give different numbers. According to TAWTHEQ, 1,444 persons were
killed. The two Palestinian NGOs provide a lower number, 1,417 victims according to PCHR
and 1,409 according to Al Mezan, while B’Tselem mentions 1,387 victims. The Mission has not
cross-checked the three lists. TAWTHEQ, PCHR, Al Mezan and B’Tselem also provide
disaggregated data.
352. TAWTHEQ reports that 341 of those killed were children (under 18), 248 members of
the police, 11 members of the Internal Security Service and 5 members of the National Security
Service. It provides no figures for the number of combatants killed.
213 UNOSAT Report.
214 These lists were prepared by the Gaza authorities’ Ministry of Justice, TAWTHEQ, The Central Commission for
Documentation and Pursuit of Israeli War Criminals and submitted to the Mission.
215 The list is available at: http://www.pchrgaza.org/files/PressR/English/2008/list.pdf
216 Al Mezan Center for Human Rights, “Cast lead offensive in numbers”, available at:
http://www.mezan.org/upload/8941.pdf. In September 2009 Al Mezan published an updated list of victims with
1,412 names.
217 B’Tselem, “B’Tselem publishes complete fatality figures from operation cast lead”, press release, 9 September
2009, available at: http://www.btselem.org/English/Press_Releases/20090909.asp
218 The list is available at http://www.dci-pal.org/english/display.cfm?DocId=917&CategoryId=1
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353. PCHR divides the overall 1,417 victims into 926 civilians, 255 police219 and 236
combatants.220 It reports that 313 of the dead were children and 116 women.
354. Al Mezan reports that overall 1,409 persons were killed during the military operations, of
whom 237 were combatants (including 13 under-age combatants) and 1,172 non-combatants,
including 342 children, 111 women and 136 members of the police.221 Thus, according to PCHR
and Al Mezan, fewer than 17 per cent of the Palestinians killed during the military operations
were combatants.
355. B’Tselem states that, of the 1,387 Palestinians who were killed, 773 did not take part in
the hostilities, including 320 minors and 109 women over the age of 18. Of those killed, 330
took part in the hostilities and 248 were Palestinian police officers, most of whom were killed in
aerial bombings of police stations on the first day of the operations. For 36 people B’Tselem
could not determine whether they had participated in the hostilities or not.
356. According to Defence for Children International, 348 children were killed during the
military operations.222
357. The Israeli armed forces claim that 1,166 Palestinians were killed during the military
operations “according to the data gathered by the Research Department of the Israel Defense
Intelligence”. They allege that “709 of them are identified as Hamas terror operatives”, 295 are
“uninvolved Palestinians”, while the remaining 162 are “men that have not yet been attributed to
any organization”.223 Of the 295 “uninvolved Palestinians”, 89 were children under the age of 16
and 49 women. According to these figures, at least 60 per cent, and possibly as many as three out
of four, of those killed were combatants. The Mission notes, however, that the Israeli
219 In the PCHR list of victims the police officers are classified as civilians.
220 PCHR, “Confirmed figures reveal the true extent of the destruction inflicted upon the Gaza Strip; Israel’s
offensive resulted in 1,417 dead, including 926 civilians, 255 police officers, and 236 fighters”, press release, 12
March 2009, available at: http://www.pchrgaza.org/files/PressR/English/2008/36-2009.html
221 “Cast lead offensive in numbers…”, p. 7.
222 Defence for Children International confirmed the deaths of another five children caused indirectly by the
military operations.
223 IDF spokesperson, “Majority of Palestinians killed in operation cast lead: Terror operatives”, 26 March 2009,
available at http://dover.idf.il/IDF/English/News/today/09/03/2602.htm; see also The Jerusalem Post, “IDF releases
cast lead casualty number”, 26 March 2009.
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Government has not published a list of victims or other data supporting its assertions, nor has it,
to the Mission’s knowledge, explained the divergence between its statistics and those published
by three Palestinian sources, except insofar as the classification of policemen as combatants is
concerned.224
358. The Mission, not having investigated all incidents involving loss of life in the Gaza Strip,
will not make findings regarding the overall number of persons killed nor regarding the
percentage of civilians among those killed. The incidents it did investigate, and on which it will
make findings based on the information it gathered, involve the death of more than 220 persons,
at least 47 of them children and 19 adult women.
359. The Mission notes that the statistics from non-governmental sources are generally
consistent. Statistics alleging that fewer than one out of five persons killed in an armed conflict
was a combatant, such as those provided by PCHR and Al Mezan as a result of months of field
research,225 raise very serious concerns about the way Israel conducted the military operations in
Gaza. The counterclaims published by the Government of Israel fall far short of international law
standards.
360. The Mission also notes that – as the Government of Israel argues at length226 – there are
circumstances under international humanitarian law in which military actions resulting in the
loss of civilian life would not be unlawful. These include attacks directed against military
objectives that comply with the principles of discrimination and proportionality, but nonetheless
kill civilians. They also include the killing of persons who, though not members of an armed
group, participate directly in the hostilities. The reportedly exceedingly high percentage of
civilians among those killed raises concerns about the precautions taken by Israel in launching
attacks as well as the legality of many of the attacks, as elaborated further in this report with
regard to the specific incidents investigated by the Mission.
224 On the question of whether Gaza policemen were civilians or combatants, see chapter VII.
225 The Mission notes that the figures from B’Tselem, which distinguish between casualties who took part in the
hostilities and those who did not, lead to similar results. If the policemen were added to those who did not take part
in hostilities (as Al Mezan and PCHR do in adding the policemen to the civilians killed), the B’Tselem statistics
would indicate that approximately one in four Palestinians killed was taking part in hostilities.
226 “The operation in Gaza…”, paras. 89–141.
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361. The Mission finally notes that it cannot entirely discount the possibility that Palestinian
civilians may have been killed as a result of fire by Palestinian armed groups in encounters with
the Israeli armed forces, as argued in a submission to the Mission,227 although it has not
encountered any information suggesting that this was the case.228
2.
Israeli casualties
362. The Israeli Ministry of Foreign Affairs reported that, during the military operations from
27 December 2008 to 18 January 2009, there were four Israeli casualties229 in southern Israel (all
adults), of whom three were civilians and one was a soldier.230 In addition, nine Israeli soldiers
were killed during the fighting inside the Gaza Strip, four of whom by friendly fire.231
B’Teslem232 confirmed these numbers, stating that during the operations Palestinians killed nine
Israelis, of whom three civilians, who were reportedly killed by Qassam and Grad rocket fire,
and six members of the security forces, while another four soldiers were killed by friendly fire.233
VII. ATTACKS ON GOVERNMENT BUILDINGS AND POLICE
A.
Deliberate attacks on Gaza government infrastructure
1.
Overview of damage to Gaza government buildings
227 “The hidden dimension of Palestinian war casualties…”. This submission is examined in chapter VIII below.
228 The Mission has, however, investigated cases of alleged extrajudicial executions of Palestinians by Palestinian
armed groups during the military operations (see chapter XIX).
229 http://www.mfa.gov.il/MFA/Terrorism-
+Obstacle+to+Peace/Hamas+war+against+Israel/Israel_strikes_back_against_Hamas_terror_infrastructure_Gaza_2
7-Dec-2008.htm
230 http://www.mfa.gov.il/MFA/Terrorism-
+Obstacle+to+Peace/Hamas+war+against+Israel/Victims_Hamas_rocket_fire_Hamas_ends_calm_Dec-2008.htm
231 http://www.mfa.gov.il/MFA/Terrorism-
+Obstacle+to+Peace/Hamas+war+against+Israel/IDF_soldiers_killed_Operation_Cast_Lead.htm
232 B’Tselem, “B’Tselem’s investigation of fatalities in Operation Cast Lead”, p. 2, available at:
http://www.btselem.org/Download/20090909_Cast_Lead_Fatalities_Eng.pdf
233 Al-Qassam Brigades’ website reports that, during the conflict, they killed 102 Israeli soldiers (“The outcome of
al-Qassam operations during the Battle of al-Furqan” (in Arabic), available at:
http://www.alqassam.ps/arabic/special_files/al-furqan/30.pdf). On 19 January 2009, Abu Obeida, a spokesperson for
the group, stated that “Israel lost ‘at least 80 soldiers’ in the fighting”. See al-Arabiya News Channel, “Hamas says
only 48 fighters slain in Israel war”, 19 January 2009, available at:
http://www.alarabiya.net/articles/2009/01/19/64513.html. The large discrepancy in the data confirms the Mission’s
observations below in the report about the reliability of the information about the Gaza military operations posted on
websites of al-Qassam and other Palestinian armed groups.
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363. In its early recovery and reconstruction plan for Gaza, the Palestinian Authority states
that “seven government institutions were either completely or partially levelled (including the
Government Palace, the Archives building, the General Personnel Council, and the Presidential
Compound), and the Ministries of Interior, Justice and Culture were either partially or entirely
destroyed, along with their associated compounds. In addition, 19 municipal facilities were
damaged and 11 were totally destroyed, including commercial centres such as markets,
slaughterhouses and stores.”234
2.
The Israeli air strikes on the Gaza main prison and on the Palestinian Legislative
Council building
364. The Mission visited two locations where government buildings were destroyed by Israeli
air strikes: the Palestinian Legislative Council building and the main prison in the al-Saraya
complex in Gaza City. In addition, the Mission visited six police stations, which will be
discussed separately below.
365. The Mission visited the remains of the Gaza City main prison and interviewed two senior
police officers who were, according to their testimony, eyewitnesses to the attack. The Mission
also reviewed reports on the attack from other sources based on the testimony of prisoners. It
furthermore addressed questions to the Government of Israel regarding the military advantage
pursued in attacking the Palestinian Legislative Council building and the main prison in Gaza
City, but received no reply.
366. The main prison was located in a densely built-up area of Gaza City in the al-Saraya
complex of buildings occupied by government departments, including the Ministries of
Education, Transport and the Interior. The prison itself was an old building, several stories high,
reportedly used as a prison by successive authorities in charge of Gaza during the previous and
present centuries. It held both common offenders and political detainees.
367. While there were some discrepancies in the different accounts of this incident, the
Mission was able to ascertain that the complex was attacked at 11 a.m. on 28 December 2008, on
234 Palestinian National Authority, Palestinian National Early Recovery and Reconstruction Plan for Gaza 2009–
2010, March 2009, p. 41.
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the second day of the air strikes by Israel. At the time of the attack between 200 and 300
prisoners were held in the facility, most of the almost 700 prisoners having been released in the
days before the strike.235 The accounts given by officials regarding the number of fatalities and
injured among the prisoners are contradicted by NGO reports and the Mission heard allegations
of extrajudicial executions of escaping prisoners by, or at the behest of, the Gaza authorities,
which the Mission deals with in chapter XIX. Police officials told the Mission that one prison
guard was killed and several injured by the Israeli strike, as the first missile hit the guards’
quarters, and that no prisoners were seriously injured. The guards had opened the prison doors
immediately after the first strike. Others reported that “some prisoners were killed in the
bombing, while others escaped the destroyed building.”236 A number of prisoners injured in the
attack went to al-Shifa hospital in Gaza City for treatment after escaping from the prison.
368. Despite the limited number of casualties that may have occurred, the high probability of
more serious loss of life and of injuries in an attack on a populated prison facility could not have
been discounted by the Israeli forces. The Mission has taken note of the assessment of the Israeli
air force that 99 per cent of the strikes it carried out were accurate.237 In the light of this claim
and in the absence of explanations to the contrary from the Israeli Government, it can only be
concluded that the prison was the intended target of the strike. There is no indication from the
information gathered on the incident and an inspection of the site that there was any cause for
considering the prison building a “military objective”.
369. The Palestinian Legislative Council building in central Gaza City was, according to
information provided by the Israeli armed forces on their official web site, attacked on 31
December 2008. Mr. Ahmad Bahr, then Acting Speaker of the Palestinian Legislative Council in
Gaza, stated to the Mission that it was hit by three missiles launched from fighter planes. The
Mission visited the damaged assembly room. It also saw the rubble of the severely damaged
235 According to statements by the police to the Mission, around 400 minor offenders had been released by the
authorities to reduce overcrowding, so that when the hostilities started about 300 prisoners remained there.
According to a NGO report based on the testimony of prisoners, “authorities released about 580 of the prisoners
after the bombings started [i.e. on 27 December 2008], but kept in custody roughly 115 alleged collaborators with
Israel, about 70 Fatah supporters held on various charges, and some persons convicted of criminal offences who had
been sentenced to death.” See Human Rights Watch, Under Cover of War: Hamas Political Violence in Gaza (April
2009), p. 11.
236 “Ending the war…”, footnote 62.
237 See also chapter XVI.
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three-storey building of the Parliament, which had been completed two years before. It was
explained to the Mission that the new building contained a videoconferencing room which
allowed the Gazan parliamentarians to hold joint sessions with the members of Parliament based
in Ramallah. No casualties as a result of the strike on the Legislative Council building were
reported to the Mission.
370. The Mission notes that the Israeli armed forces acknowledged in their “Summary of
overnight events” of 1 January 2009 that:
The IAF and Israel Naval Forces struck around 20 Hamas targets throughout the
Gaza Strip during late night and early morning hours (Dec. 31).
Among the sites targeted were:
The buildings housing Hamas' Ministry of Justice and Legislative Assembly,
both located in the Tel El-Hawwa government complex. Hamas Government sites
serve as a critical component of the terrorist groups’ infrastructure in Gaza.238
371. The Israeli army spokesperson further elaborated: “The attack on strategic government
objectives, which constitute part of Hamas’s mechanism of control, is a direct response to the
continued firing on communities in southern Israel by the Hamas terrorist organization.”239
3.
The position of the Government of Israel
372. The Mission observes that the Government of Israel is not alleging that any Hamas
military activity, such as launching of rockets, storage of weapons or planning of operations, was
carried out in the Legislative Council building, the Ministry of Justice or the main prison. The
justification of the Government of Israel for the strike on the Palestinian Legislative Council is
that it is a “Hamas Government site”, and that such sites “serve as a critical component of the
terrorist groups’ infrastructure in Gaza” and “constitute part of Hamas’s mechanism of control”.
373. This explanation posted on the Israeli armed forces’ official website is integrated and
elaborated on by numerous statements made by current and former senior Government officials
238 http://dover.idf.il/IDF/English/opcast/op/press/0101.htm
239 Official statement by an Israeli military spokesman, 1 January 2009, available at:
http://dover.idf.il/IDF/News_Channels/art_mivzaim/09/01/0101.htm (in Hebrew).
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to the media. Major Avital Leibovich, a spokesperson of the Israeli armed forces, reportedly
argued “anything affiliated with Hamas is a legitimate target.”240 The deputy chief of staff, Maj.
Gen. Dan Harel, reportedly told a meeting with heads of local authorities in southern Israel that:
This operation is different from previous ones. We have set a high goal which we
are aiming for. We are hitting not only terrorists and launchers, but also the whole
Hamas government and all its wings. […] We are hitting government buildings,
production factories, security wings and more. We are demanding governmental
responsibility from Hamas and are not making distinctions between the various wings.
After this operation there will not be one Hamas building left standing in Gaza, and
we plan to change the rules of the game.241
374. Israeli armed forces’ spokesman Captain Benjamin Rutland reportedly stated: “Our
definition is that anyone who is involved with terrorism within Hamas is a valid target. This
ranges from the strictly military institutions and includes the political institutions that provide the
logistical funding and human resources for the terrorist arm.”242
375. Mr. Matti Steinberg, a former senior adviser to the Israeli General Security Services,
argued that “Hamas’s civilian infrastructure is a very, very sensitive target. If you want to put
pressure on them, this is how”.243 Less than three months before the hostilities in Gaza began,
Col. Gabriel Siboni similarly argued that:
…the IDF will be required to strike hard at Hamas and to refrain from the cat and
mouse games of searching for Qassam rocket launchers. The IDF should not be expected
to stop the rocket and missile fire against the Israeli home front through attacks on the
launchers themselves, but by means of imposing a ceasefire on the enemy.244
240 The Washington Post, “All-out war declared on Hamas”, 30 December 2008.
241 Ynet, “Deputy chief of staff: worst still ahead” , 29 December 2008.
242 BBC News, “Gaza conflict: who is a civilian?”, 5 January 2009, available at:
http://news.bbc.co.uk/2/hi/middle_east/7811386.stm
243 “All-out war…”.
244 Gabriel Siboni, “Disproportionate force: Israel’s concept of response in light of the second Lebanon war”,
Institute for National Security Studies Insight, No. 74 (2 October 2008), available at:
http://www.inss.org.il/publications.php?cat=21&incat=&read=2222
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376. The Mission understands all these statements to imply that, in the view of their authors,
in order to be effective, military operations have to be directed not only against military targets
but also against the non-military infrastructure.
377. The Israeli Government’s discussion of the “targeting of Hamas terrorist infrastructure”
asserts that, “consistent with the principle of distinction, IDF forces attacked military targets
directly connected to Hamas and other terrorist organizations’ military activities against Israel.”
This statement is followed by a list of examples of objectives, such as command posts of al-
Qassam Brigades, alleged weapons storage sites and training camps, rocket and mortar launch
sites, and tunnels. The list also refers twice to a location identified as the office of Ismail
Haniyah, “head of the Hamas administration”. This list is followed, however, by a statement
reiterating and elaborating the argument that there is really no distinction to be made between
military and civilian objectives as far as government and public administration in Gaza are
concerned:
While Hamas operates ministries and is in charge of a variety of administrative
and traditionally governmental functions in the Gaza Strip, it still remains a terrorist
organization. Many of the ostensibly civilian elements of its regime are in reality
active components of its terrorist and military efforts. Indeed, Hamas does not
separate its civilian and military activities in the manner in which a legitimate
government might. Instead, Hamas uses apparatuses under its control, including
quasi-governmental institutions, to promote its terrorist activity.245
4.
Factual findings
378. From the facts gathered by it, the Mission finds that Israel launched direct attacks against
the main prison in Gaza City on 28 December 2008 and against the Palestinian Legislative
Council building in Gaza City on 31 December 2008. The attacks substantially damaged the
buildings, making them unfit for use. At least one person was killed in the attack on the prison,
while there were apparently no casualties in the attack on the Legislative Council building.
245 “The operation in Gaza…”, paras. 233–235.
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379. The factual question of whether these two institutions and their buildings served a
military purpose must be considered with regard to the legal definition of military objectives. It
is addressed in the following section.
5.
Legal analysis
380. In assessing the Israeli strikes against the Legislative Council building and the main
prison, the Mission first of all notes that Hamas is an organization with distinct political, military
and social welfare components.246
381. Since July 2007 Hamas has been the de facto government authority in Gaza. As
recognized by the Israeli Government,247 the Hamas-led authorities in Gaza have been
responsible for the civilian administration of Gaza. For instance, they employ civil servants and
workers, run schools, hospitals, traffic police and the administration of justice. The fact that
these institutions and the buildings housing them have been administered by authorities led by
Hamas since July 2007, and no longer by a government composed of both Hamas and Fatah
members has, in the view of the Mission, no bearing on the continued civilian character of these
institutions. Regarding the prison, the Mission finds the consequences of the attack aptly
described in the answer to its questions received from the Gaza authorities: “As a result of this
targeting, great numbers of those who were detained pending trial in criminal cases and of those
convicted of major crimes such as murder escaped. This has caused disorder and chaos,
encouraged ‘family revenge’ cases and people taking the law into their own hands.”248 As far as
the Palestinian Legislative Council building is concerned, it served representatives from all
Palestinian parties who won seats in the 2006 elections (which were recognized as free and fair
by international observers).
246 This situation is recognized also by Governments which have listed Hamas’ military component as “terrorist”.
The Australian Government’s listing of al-Qassam Brigades as a terrorist organization (last updated 14 September
2007), for instance, explains: “The functions of the Hamas organization, which has distinct civilian and military
wings, include legitimate political and social activities. Its welfare and mosque networks act as a base for its
recruitment and propaganda activities. Its terrorist operations are conducted by its military wing, the Izz ad-Din al-
Qassam Brigades.”
247 “The operation in Gaza…”, para. 235.
248 Reply from the Gaza authorities to the Mission’s list of questions (July 2009).
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382. The Mission met with Gaza-based Legislative Council members belonging to Hamas, to
Fatah and to the Popular Front for the Liberation of Palestine.249 While Hamas constitutes the de
facto authority in Gaza, the buildings attacked and destroyed served a public purpose that cannot
be regarded as “promoting Hamas terrorist activity”.
383. The fundamental rule of international humanitarian law applicable to attacks against
buildings and infrastructure is enshrined in article 52 of Additional Protocol I (“General
Protection of civilian objects”). This provision is generally recognized as codifying customary
law applicable to both international and non-international armed conflicts:250
1. Civilian objects shall not be the object of attack or of reprisals. Civilian
objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects
are concerned, military objectives are limited to those objects which by their nature,
location, purpose or use make an effective contribution to military action and whose
total or partial destruction, capture or neutralization, in the circumstances ruling at
the time, offers a definite military advantage.
3. In case of doubt whether an object which is normally dedicated to civilian
purposes, such as a place of worship, a house or other dwelling or a school, is being
used to make an effective contribution to military action, it shall be presumed not to
be so used.
384. The statement by the Israeli Government concerning the attack on the Legislative
Council building and the Ministry of Justice does not suggest any “effective contribution to
military action” that the buildings might have been making. No reference is made to any
“definite military advantage” that their destruction would offer. Instead, the explanation is that
government buildings constitute “part of Hamas’s mechanism of control”, that they “serve as a
critical component of the terrorist groups’ infrastructure in Gaza” and that “ostensibly civilian
249 The Mission also spoke with West Bank-based Legislative Council members.
250 International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, vol. I, Jean-
Marie Henckaerts and Louise Doswald-Beck, eds. (Cambridge University Press, 2005), rules of customary law 7–9.
The Israeli Government recognizes this principle. See “The operation in Gaza…”, para. 95.
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elements of [the Hamas] regime are in reality active components of its terrorist and military
efforts.”
385. The Mission observes that there is nothing unique in the fact that in Gaza ministries and
prisons are part of the government’s “mechanism of control” and that the legislature’s assembly
hall and administrative buildings are a critical component of the government infrastructure. That
is not, however, the test applied by international humanitarian law and accepted State practice to
distinguish between civilian and military objects. The Mission reviewed, for instance, the
tentative list of military objectives drawn up by Major General A.P.V. Rogers, a former Director
of the British Army Legal Services, and a proposed list of military objectives drawn up by the
International Committee of the Red Cross (ICRC). There is nothing in this comprehensive list of
military objectives that comes close to a legislative assembly’s building or a prison. As far as
ministries are concerned, both lists limit the definition of military objective to “war
ministries”.251
386. The Mission further notes that international humanitarian law also recognizes a category
of civilian objects which may nonetheless be targeted in the course of armed conflict to the
extent that they have a “dual use”. Examples often made for such dual-use objects, which serve
both civilian and military purposes, are civilian infrastructures such as telecommunications,
power-generating stations or bridges, in so far as they are used by the military in addition to
their civilian use. There is no indication, nor any allegation of any such dual use of the
Legislative Council building or of the Gaza main prison.
387. There is an absence of evidence or, indeed, any allegation from the Israeli Government
and armed forces that the Legislative Council building, the Ministry of Justice or the Gaza main
prison “made an effective contribution to military action.” On the information available to it, the
Mission finds that the attacks on these buildings constituted deliberate attacks on civilian objects
in violation of the rule of customary international humanitarian law whereby attacks must be
strictly limited to military objectives.
251 “Final report to the Prosecutor by the Committee established to review the NATO bombing campaign against the
Federal Republic of Yugoslavia”, paras. 38–39, available at:
http://www.un.org/icty/pressreal/nato061300.htm#IVA64d
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388. In the Mission's view these facts further indicate the commission of the grave breach of
extensive destruction of property, not justified by military necessity and carried out unlawfully
and wantonly, as defined in article 147 of the Fourth Geneva Convention.
389. The Mission rejects the analysis of present and former senior Israeli officials that,
because of the alleged nature of the Hamas government in Gaza, the distinction between civilian
and military parts of the government infrastructure is no longer relevant in relation to Israel’s
conflict with Hamas. This analysis is accompanied, in the statements of Col. Gabriel Siboni and
Mr. Matti Steinberg, by an explicit argument that Israel should “put pressure” on Hamas by
targeting civilian infrastructure to attain its war aims.
390. The Mission is of the view that this is a dangerous argument that should be vigorously
rejected as incompatible with the cardinal principle of distinction. International humanitarian law
prohibits attacks against targets that do not make an effective contribution to military action.
Attacks that are not directed against military (or dual use) objectives are violations of the laws of
war, no matter how promising the attacker considers them from a strategic or political point of
view. As a recent academic contribution to the discussion on whether “new wars” require “new
laws” has noted, “if this argument [that attacks against political, financial or psychological
targets may prove more effective than those against military or dual-use objectives] was
decisive, in some societies – in particular in democracies – it may be hospital maternity wards,
kindergartens, religious shrines, or homes for the elderly whose destruction would most affect
the willingness of the military or of the government to continue the war.”252
B.
Deliberate attacks on the Gaza police
391. Information received by the Mission indicates that 248 members of the Gaza police were
killed in the course of Israel’s military operations.253 In other words, more than one out of every
six casualties was a member of the Gaza police.
252 Marco Sassoli, “Targeting: the scope and utility of the concept of “military objectives” for the protection of
civilians in contemporary armed conflicts”, New Wars, New Laws? Applying the Laws of War in 21st Century
Conflicts, D. Wippman and M. Evangelista, eds. (Ardsley, New York; Transnational Publishers; 2005), p. 196.
253 The Central Commission for Documentation and Pursuit of Israeli War Criminals (TAWTHEQ), established by
the Gaza authorities’ Ministry of Justice.
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392. The Mission visited the “Arafat City” police headquarters in Gaza City and five police
stations: the Abbas police station (central Gaza City), three police stations in neighbourhoods in
the east and south of Gaza City (Zeytoun, al-Shujaeiyah and al-Tuffah) and the Deir al-Balah
investigative police station. The Mission interviewed the Director of Police, the police
spokesman, station commanders at the stations visited and other persons knowledgeable about
the Gaza police. The Mission also reviewed allegations about the Gaza internal security forces
made by the Israeli Government and also mentioned in a report (in Hebrew) by the Orient
Research Group Ltd., an Israeli organization commissioned by the then Israeli Prime Minister
Ehud Olmert to produce this report.254
393. The attacks investigated by the Mission were all directed against facilities used by the
police force called shurta (police) in official documents of the Gaza authorities and referred to as
“civil police” in many English reports.
394. The Arafat City police headquarters and three of the five police stations visited were
attacked during the first minutes of the Israeli military operations in Gaza, between 11.20 and
11.35 a.m. on 27 December 2009. According to witnesses, the attacks were carried out primarily
with bombs and missiles launched from fighter jets. Missiles launched by naval forces might also
have been used.
395. According to the information received by the Mission from TAWTHEQ, 29 other police
stations were targeted by the Israeli armed forces in addition to the five police stations visited by
the Mission. Twenty-four were targeted on 27 December 2008 (mostly during the first minutes
of the attack), the first day of the military operations, nine on the following day and one on 14
January 2009.
254 See Lt. Col. (res.) Jonathan Dahoah-Halevi, “Fatal casualties of the Palestinian security forces – Myth vs.
Reality” (Orient Research Group Ltd., 2009). Its author is a former adviser to the Policy Planning Division of the
Israel Ministry of Foreign Affairs and current researcher at the Jerusalem Center for Public Affairs and co-founder
of the Orient Research Group Ltd. In a letter to the Mission, the author stated that the report had been commissioned
“to identify the police officers killed and the extent of their affiliation with Hamas, Palestinian Islamic Jihad and
other terrorist organizations.” As to the sources and methodology employed, he explained that he had examined
materials in the public domain, including official lists of policemen who were killed published by the Palestinian
Police and the Gaza authorities, NGO reports and material published by Palestinian armed groups. “The operation in
Gaza…” relies on this report, referring to it as “a recent study” (para. 247).
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1.
Information regarding the attacks on the police headquarters and police stations
visited by the Mission
396. Arafat City police headquarters occupy a large compound in central Gaza. They are used
by the civil police (shurta), one of the police forces operating in Gaza, as office space and for
training courses. The Mission visited three sites in the compound in which missiles or bombs had
struck. In one large yard, three missiles struck the participants of a police training course. Forty-
eight policemen were killed on the spot, five more were wounded, two of whom subsequently
succumbed to their injuries.
397. While it appears that all the policemen killed in this location were taking part in a
training course, there is conflicting information on the details. Most reports by NGOs are to the
effect that these were police “cadets” in the midst of a graduation ceremony. The Gaza police
spokesperson, however, told the Mission that they were serving policemen, who had been taking
a three-week course and who were, at the time of the strike, doing “morning sport exercise”.255
The contents of the training course reportedly were “protocol”, i.e. how to deal with
representatives of foreign Governments and international delegations, and rescue operations. An
obituary of one of the policemen killed, published on the website of al-Qassam Brigades, claims
that he was attending “a military refreshing course.”256
398. The police gave the Mission small cube-shaped (4x4x4 mm3 and 2x4x4 mm3) metal
fragments allegedly from the missiles fired at this location. Information provided by NGOs that
visited the site soon after the strike and collected samples of the munitions fragments confirm
that they were found there. Laboratory analysis of the cubes establishes that they are made of
tungsten.257
255 Mission phone interview with Mr. Shahwan, Gaza police spokesperson, 12 July 2009.
256 See http://www.alqassam.ps/arabic/sohdaa5.php?id=1342
257 Laboratory analysis was carried out under the supervision of Lt. Col. Lane of Ireland’s Defence Forces, an expert
witness of the Mission. In his report to the Mission he notes that “the IDF have deployed newly developed high-
precision low-collateral damage missile systems…. In mid-2004 Rafael noted that a new warhead for the Spike had
been developed for operations in urban areas.” See also Human Rights Watch, Precisely Wrong: Gaza Civilians
Killed by Israeli Drone-Launched Missiles (June 2009), where it is stated that the fragments are likely to have been
from drone-launched “Spike” missiles produced by the Israeli firm Rafael Advanced Defense Systems (pp. 6–7, 11–
12).
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399. In a second location at Arafat City police headquarters, two projectiles fired by Israeli
fighter jets left two craters. No one was present in the area at the time of the strike. The third
location visited by the Mission was near the north gate of the police headquarters where a
projectile, most likely a missile, killed police chief Tawfiq Jabr. Reports indicate that other sites
at the police headquarters, not visited by the Mission, were also targeted.
400. A second police training course targeted was reportedly attended by around 50
policemen. Twenty-eight of them were killed in the strike. According to the police spokesperson,
the training course was designed to instruct police officers on how to deal with police officers
who abused their power as well as on cultural and economic issues relevant to police work.258
Moreover, as the survivors were trying to flee through the western gate of the police city, they
were reportedly targeted by two anti-personnel missiles, which caused deaths and injuries. While
the Mission did not receive official information from the Gaza authorities on the number of
policemen killed at the police headquarters on 27 December 2008, a report by an NGO submitted
to the Mission states that 89 policemen died as a result of this attack.
401. Abbas police station in central Gaza City was, according to the station commander, hit by
three missiles on 27 December 2008 at 11.35 a.m.259 Officials at the police station had just been
informed of the attack on Arafat City police a few minutes earlier and immediate evacuation of
the station had begun. Nine policemen were killed, 20 more reportedly injured. There were,
according to the station commander, five detainees (common criminal suspects) in the police
cells, who were released before the attack. There were members of the public going about their
normal business at the police station at the time of the strike, including women and children.
TAWTHEQ estimates the material damage caused by the attack at US$ 80,000.
402. The police station in the al-Tuffah neighbourhood of Gaza City, a recently completed
three-storey building, was struck by three missiles around 11.30 a.m. on 27 December 2009.260
Also according to the station commander, no policemen were killed, as it had been possible to
evacuate the police station very rapidly after another target in the neighbourhood had been hit.
258 Mission phone interview with Mr. Shahwan, Gaza Police Spokesperson, 12 July 2009.
259 Interview with station commander, Maj. Iyad Jabr el Horani, 9 June 2009.
260 Interview with Tuffah station commander, Maj. Aymal el-Batniji, 9 June 2009.
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Many civilian bystanders were, however, allegedly injured. The station was hit again in the
course of the hostilities. TAWTHEQ estimates the material damage caused by the attack at US$
150,000.
403. The Deir al-Balah investigative police station was attacked between 11.30 and 11.45 a.m.
on 27 December 2008. According to a police officer interviewed by the Mission,261 the police
station was hit by a missile fired from an F-16. Other witnesses interviewed by the Mission
recalled several explosions, the first of them most likely on a plot adjacent to the police station.
Police officers who were inside the station at the time of the attack262 reported that routine police
activities were taking place. Suspects were being interrogated (there were four or five persons
held in the station’s jail) and residents of the area were filing complaints. One police officer,
Ashraf Hamadah Abu Kuwaik, was killed in the strike, and five other officers and one civilian
were also injured.
404. The attack on the Deir al-Balah investigative police station cost the lives of six members
of the public, who were in the vicinity. As a result of the explosions at the police station and of
the debris, walls at the house of the al-Burdini family next to the police station collapsed, killing
the 10-year-old Kamelia al-Burdini263 and injuring several other members of the family. At a
wholesale fruit and vegetable market next to the police station on Salah ad-Din Street, where
between 50 and 100 persons were trading at the time, debris from the police station killed five
persons, among them Abd al-Hakim Rajab Muhammad Mansi, 32, and his son, Uday Hakim
Mansi, and injured many others.264
405. The strikes on al-Shujaeiyah and Zeytoun police stations, on 28 December 2008 and 14
January 2009, did not result in the deaths of any policemen, as after the 27 December attacks the
police stations had been evacuated.265 In the attack on al-Shujaeiyah police station, however, two
women, a man and a child, standing on the opposite side of the road, were reportedly killed by
261 Interview with First Lieutenant Samih Sabbah, 30 June 2009.
262 Interviews with First Lieutenant Samih Sabbah and criminal investigation officer Ahmad Abu Slimya, 30 June
2009.
263 Interview with Refaet al-Burdini, 30 June 2009.
264 Interview with Muhammad Ibrahim Khalid. The names of two of the persons killed are on the PCHR list of child
victims of the hostilities.
265 Interviews with Zeytoun station commander, Maj. Mahmoud Kehael, and Lt. Mahmoud Idallo of al-Shujaeiyah
station.
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debris. TAWTHEQ estimates the material damage caused by the attacks on al-Shujaeiyah and
Zeytoun police stations at US$ 210,000 and US$ 900,000, respectively.
2.
Conflicting characterizations of the Gaza security forces
The approach of the Government of Israel
406. The position of the Government of Israel is that “due to their military functions, these
internal security forces were not accorded the immunity from attack generally granted to
civilians.” It alleges that, in May 2006, Hamas formed the Executive Force as a loyal militia,
“[drawing] this paramilitary force largely from its military wing, the Izz al-Din al-Qassam
Brigades, and armed the members with anti-tank missiles, mortars, machine guns and grenades.
The newly recruited commanders and subordinates were not obliged to give up their military
wing affiliation, and continued to operate simultaneously in both functions.” It further alleges
that after the June 2007 seizure of full control over Gaza, Hamas restructured the Executive
Force and subdivided it into several units, including the police, who “assumed many traditional
law enforcement functions”. It goes on to say that its members, however, remained members of
Hamas’ military wing and their weaponry continued to include machine guns and anti-tank
weapons. “[…] the former Executive Force continued to be closely integrated with — although
not formally part of — the al-Qassam Brigades. […] many members of the internal security
services also served directly in the al-Qassam Brigades.” Regarding the military operations, the
Israeli Government alleges that “Hamas intended to, and did, in fact, employ its internal security
forces for military activities during the Gaza Operation.” It further alleges that the “collective
role of the Gaza ‘police’ as an integral part of Hamas armed forces is further evidenced by the
fact that many Gaza ‘policemen’ were also members of the al-Qassam Brigades.” To support this
allegation, an Israeli Government paper shows pictures of four men killed during the military
operations. Each of the men is shown in two pictures purportedly downloaded from Palestinian
websites, one identifying the man as a policeman, the other as a member of al-Qassam Brigades.
Finally, the paper refers to the above-mentioned study of the Orient Research Group Ltd., stating
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that it found that “more than nine out of every ten alleged ‘civilian police’ were found to be
armed terrorist activists and combatants directly engaged in hostilities against Israel.”266
The approach of the Gaza authorities
407. The characterization of the Gaza internal security forces by the Government of Israel
differs sharply from the tasks of the police as they are described on the official website of the
Gaza Ministry of Interior, in orders to the police issued by the Minister of Interior which the
Mission has reviewed, and in the interviews with the Director of Police and the police
spokesman conducted by the Mission.
408. The Director of Police, Gen. Jamal al-Jarrah, also known as Abu Obeidah, stated that
“the role of the police is to solve problems of the population, combat drug trafficking, arrest
criminals.” He reported that they are equipped with Kalashnikov firearms and batons, as the
authorities have not been able to obtain other police equipment, such as tear gas and small guns.
Gen. Abu Obeidah acknowledged that there were complaints about the “harsh” methods of the
Gaza police, but showed pride in their success in reducing lawlessness in the Gaza Strip.267 This
assessment was shared by many whom the Mission interviewed in the course of its
investigations. The police orders and the Ministry’s website similarly describe the police as a
law-enforcement agency. As to allegations that the police and al-Qassam Brigades were
“interchangeable”, the Director of Police asserted that they were “absolutely not true”.
409. According to the police spokesperson, during the military operations the mandate of the
police was firstly to “protect the internal front”, i.e. ensure that the relationship between the
civilian population and the authorities stayed “intact”. Secondly, the police were to monitor the
distribution of humanitarian goods to the civilian population. Thirdly, they were to continue
regular law-enforcement duties, with a particular focus on combating looting and speculation on
prices.268
266 “The operation in Gaza…”, paras. 237, 239, 241–242 and 245–247.
267 Mission meeting with the Gaza authorities’ Director of Police, 4 June 2009. On both successes in restoring order
and violations of human rights by the Gaza police after June 2007, see also International Crisis Group, “Ruling
Palestine I: Gaza under Hamas”, Middle East Report No. 73, 19 March 2008, p. 10.
268 Mission meeting with Gaza authorities’ police spokesperson, 9 June 2009. According to the International Crisis
Group, during the hostilities, “the Qassam Brigades and some civil police members (still referred to locally as the
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3.
The Mission’s assessment of the role and composition of the police
410. In order to shed some light on where the truth might lie between these two conflicting
descriptions of the police, the Mission finds it necessary to examine the development of the
security forces linked to Hamas after its election victory in January 2006. When Mr. Said Seyam,
a senior Hamas representative,269 took office as the Palestinian Authority’s Minister of Interior in
April 2006, he found that he had little or no control over the Palestinian Authority’s security
forces, which were put under the control of the President of the Palestinian Authority and of
officials loyal to him.270 On 20 April 2006, he announced the formation of a new security force
reporting directly to him. This was the Security Forces Support Unit, also known as the
Executive Force (al-Quwwa al-Tanfiziyya). The new security force appears to have had a double
function as both a law-enforcement agency and, at least potentially, a military force. It was
officially charged with enforcing public security and protecting property. At the same time, he
appointed Mr. Jamal Abu Samhadana, commander of the Popular Resistance Committees, as the
head of the Executive Force271 and announced that it would be composed of 3,000 new recruits
from various Palestinian armed groups, including al-Qassam Brigades.272 The newly appointed
commander reportedly declared: “[The Executive Force] will be the nucleus of the future
Palestinian army. The resistance must continue. We have only one enemy. … I will continue to
carry the rifle and pull the trigger whenever required to defend my people. We are also a force
against corruption. We are against thieves, corrupt officials and law breakers.” 273
“Executive Forces”) patrolled streets in civilian clothes; some wore badges to establish their official status. They
continued to arrest lawbreakers, detaining them in ordinary apartments since prisons have been destroyed; this helps
explain why thus far there has been no report of looting or increase in crime. Likewise, security personnel
maintained order in breadlines that sometimes stretched to hundreds of people and prevented unrest at the
overburdened hospitals, where tempers easily flare.” “Ending the war…”, p. 8).
269 Said Seyam was killed by an Israeli air strike on 15 January 2009 together with several members of his family
(TAWTHEQ documents submitted to the Mission; see also International Crisis Group, “Gaza’s unfinished
business”, Middle East Report N°85, 23 April 2009, p. 5.)
270 See, for instance, International Crisis Group, “Palestinians, Israel, and the Quartet: Pulling back from the brink”,
Middle East Report N°54, 13 June 2006, p. 12.
271 Ibid., pp. 13 and 20; “Fatal casualties…”. Abu Samhadana and three other members of the Popular Resistance
Committees were killed by an Israeli air strike on 8 or 9 June 2006..
272 “Palestinians, Israel, and the Quartet…”, p. 13. The “Executive Force consisted in summer of 2007 of some
estimated 6,800 members of the armed wings of Hamas and the Popular Resistance Committees”, R. Friedrich and
A. Luethold, eds., Entry-Points to Palestinian Security Sector Reform (Geneva Centre for the Democratic Control of
Armed Forces, 2007), p. 162.
273 “Palestinians, Israel, and the Quartet…”, footnote 105.
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411. In August 2007, following the June 2007 Hamas seizure of full control over Gaza, the
current Director of the Gaza authorities’ civil police, then head of the Executive Force, Gen. Abu
Obeidah, described the planned reorganization of the security services in Gaza. Executive Force
members were to be integrated into the civil police. He reportedly stated that Hamas was
“working hard to retrain Executive Force members to perform police duties” and that the “Force
will be in charge of chasing drug dealers and lawless residents”. At the same time, he stated that
“members of the Force are religious, and are resistance fighters.”274
412. In October 2007, the security services operating in Gaza were reorganized. The previous
Palestinian Authority’s police agencies in Gaza were merged with the Executive Force.275 The
security forces under the control of the Ministry of Interior emerging from this reorganization
comprise the Civil Police, the Civil Defence, the Internal Security (an intelligence agency) and
the National Security. Their mandates, according to the Gaza authorities’ Ministry of Interior’s
website,276 are differentiated.
413. The National Security force is given specific military tasks, such as “the protection of the
State from any foreign aggression” and “responsibility for the defence of the Palestinian
homeland in the face of external and internal threats”. It is thus plainly a military force whose
members are, under international humanitarian law, combatants.277 The functions of the police
have been outlined above.
414. On 1 January 2009, during the Israeli military operations in Gaza, the police
spokesperson, Mr. Islam Shahwan, informed the media that the police commanders had managed
to hold three meetings at secret locations since the beginning of the armed operations. He added
that “an action plan has been put forward, and we have conducted an assessment of the situation
and a general alert has been declared by the police and among the security forces in case of any
emergency or a ground invasion. Police officers received clear orders from the leadership to face
274 International Middle East Media Center, “Interview with the leader of the Hamas-formed Executive Force”, 17
August 2007, available at: http://www.imemc.org/article/49939
275 See, e.g., Xinhua, “Hamas Executive Force merged into police force in Gaza: official”, 2 October: “Ihab al-
Ghusein, a spokesman with the Interior Ministry, made the remarks during a news conference in Gaza. Al-Ghusein
said the mission of the Executive Force ‘is now over, and it is time to include the force into the official police force
that belongs to the ministry of interior.’”
276 See the Arabic-language website of the Gaza Ministry of Interior:
http://www.moi.gov.ps/?page=633734043174687500
277 See the Arabic-language website of the National Security Forces: http://www.nsf.gov.ps
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(“db bdd
_” in Arabic) the enemy, if the Gaza Strip were to be invaded.”278 Confirming to the
Mission that he had been correctly quoted, Mr. Shahwan stated that the instructions given at that
meeting were to the effect that in the event of a ground invasion, and particularly if the Israeli
armed forces were to enter urban settlements in Gaza, the police was to continue its work of
ensuring that basic food stuffs reached the population, of directing the population to safe places,
and of upholding public order in the face of the invasion. Mr. Shahwan further stated that not a
single policeman had been killed in combat during the armed operations, proving that the
instructions had been strictly obeyed by the policemen.
415. The Mission notes that there are no allegations that the police as an organized force took
part in combat during the armed operations. On the basis of the information provided by the
Gaza authorities and of the above-mentioned study of the Orient Research Group Ltd., it would
appear that 75 per cent of its members killed in the course of the military operations died as a
result of the air strikes carried out during the first minutes of the Israeli attack. These men had
not engaged in combat with the Israeli armed forces.279
416. The Mission also notes that while the then commander of the Executive Forces and now
Director of Police did reportedly say in August 2007 that members of the Executive Force were
“resistance fighters”, he stressed in the same interview the authorities’ intention to develop it into
a law enforcement force. The Mission notes that a situation in which a recently constituted
civilian police force integrates former members of armed groups would not be unique to Gaza.
That prior membership in itself would not be sufficient to establish that the police in Gaza is a
part of al-Qassam Brigades or other armed groups.
278 His statements are reported in the Arabic original on a website of the Egyptian Muslim Brotherhood, at
http://www.ikhwanonline.com/Article.asp?ArtID=43756&SecID=450. The journalist states that in spite of the
Israeli air attacks against police stations, the police continued to do law enforcement work and to direct the traffic:
“members of the Criminal Investigation and the Internal Security caught a quantity of drugs in some of the targeted
areas, and at the entrances of some of the crossroads and cities within the Strip, where one can observes members of
the police in civilian clothes monitoring the traffic”.
279 In “Fatal casualties…”, the Orient Research Group Ltd, however, identifies 31 policemen who it alleges were
killed in combat in Gaza during the period from 3 to 18 January. In a few cases the information is rather specific,
such as “killed on 4 January in Jabalya after launching rockets” or “killed on 6 January while fighting the IDF in
Deir al-Balah”. In other cases it is more generic, such as “killed while fighting the IDF”. The Mission accepts that
this might indicate that some individual members of the Gaza police were at the same time members of armed
groups. The Mission is also mindful, as explained below, that the claims of armed groups that a person killed during
the armed operations was one of their members have to be treated with care.
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417. Except for the statements of the police spokesperson, the Israel Government has
presented no other basis on which a presumption can be made against the overall civilian nature
of the police in Gaza. It is true that the police and the security forces created by Hamas in Gaza
may have their origins in the Executive Force. However, while the Mission would not rule out
the possibility that there might be individuals in the police force who retain their links to the
armed groups, it believes that the assertion on the part of the Government of Israel that “an
overwhelming majority of the police forces were also members of the Hamas military wing or
activists of Hamas or other terrorist organizations”,280 appears to be an overstatement that has
led to prejudicial presumptions against the nature of the police force that may not be justified.
418. In his meeting with the Mission, the Director of Police was very open in acknowledging
that many of his men were Hamas supporters, but insisted at the same time there are others who
supported other Palestinian factions.281 Police station commanders interviewed by the Mission
stated that most of their men (70 per cent according to the estimates of one station commander,
95 per cent in another station) had joined the police after June 2007.282 The Mission
understands that most, if not all, of the post-June 2007 recruits into the civil police, will have
been recruited from the Executive Force, which was strongly loyal to Hamas.
419. The Mission also notes, however, that in senior positions in the police, the representation
of non-Hamas men appears to have been broader. The Director of Police killed on 27 December
2008, Mr. Tawfiq Jabr, was generally known as not being affiliated with Hamas. Several of the
station commanders interviewed by the Mission were also not Hamas affiliates but men who had
joined the Palestinian Authority’s police after the Oslo Accords allowed the Palestinians to
constitute their own law-enforcement agencies. They had thus served in the Palestinian police in
Gaza for more than 10 years before Hamas seized control of it in June 2007.
420. The Mission further notes that the study conducted by the Orient Research Group Ltd.
names policemen killed during the attack, whom it identifies as members of Hamas, al-Qassam
Brigades, other armed Palestinian groups or “terror operatives” whose affiliation is not known.
280 “The operation in Gaza…”, para. 247.
281 Mission meeting with Director of Police, 4 June 2009.
282 Mission interviews with Gaza City police station commanders, 9 June 2009.
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In 78 out of 178 cases the policemen are alleged to be members of al-Qassam Brigades on the
sole basis that they were allegedly Hamas members.
421. Furthermore, it appears from the response to the Mission from the Orient Research Group
Ltd. describing its methodology that its information on police members’ alleged affiliation with
armed groups was based to a large extent on the websites of the armed groups. In this respect,
the Mission is mindful of a recent report by a Palestinian human rights NGO drawing attention to
the “issue of the ‘adoption’ of killed persons by resistance groups; i.e. declaration by a political
or armed group that the person killed was one of their members. Often, when persons, including
children, are killed by actions of the Israeli armed forces , political and/or armed groups ‘adopt’
them as ‘martyrs’ placing their photographs on their websites and commending their contribution
to resisting occupation. This does not mean that those persons killed were involved in resistance
activities in any way. The families accept this ‘adoption’ of deceased family members for
various reasons including the willingness of resistance groups to provide financial support to the
families and pay for funeral costs of the persons killed.” As the NGO concludes, “these cases
require in-depth investigation on a case-by-case basis in order to determine every person’s status
according to his actual affiliation”.283
4.
Factual findings
422. From the facts gathered by it, the Mission estimates that 99 policemen and nine members
of the public were killed in the attacks on the police headquarters and the five police stations
inspected by the Mission. The Gaza authorities state that overall 248 policemen were killed by
the Israeli armed forces during the military operations. The study by the Orient Research Group
Ltd. identifies 345 men allegedly belonging to the Gaza internal security forces killed by Israeli
attacks during the military operations. It identifies 240 of the 345 alleged members of the
internal security forces as members of the police. This is very close to the number provided by
the Gaza authorities.284
283 Al Mezan Center for Human Rights, “Cast lead offensive in numbers”, p. 5.
284 ”Fatal casualties…” assigns the remaining victims to national security (5), civil defence (11) and internal security
(2), with the remaining 85 identified as belonging to security forces without being able to state which one.
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423. The facts gathered by the Mission indicate that the policemen were the intended targets
of the attacks. The Israeli Government285 is quite clear on this, and has not suggested that the
attacks on the police were not intended. The type of ammunition used at the Arafat City police
headquarters is designed to kill or incapacitate people in the area of impact and has little or no
effect on buildings or other infrastructure. In other locations at the civil police headquarters in
Gaza City the munitions used were such that the damage to infrastructure was minimal compared
to the cost in lives among the policemen. With regard to the other police stations visited by the
Mission, damage to the buildings was extensive but the number of policemen killed was limited,
with the exception of Abbas police station in central Gaza City, where nine policemen were
killed. There is no question that the approximately 100 policemen who died in the attacks on the
stations visited by the Mission were deliberately targeted and killed by the Israeli armed forces.
424. The attacks on the police headquarters and five police stations visited by the Mission
were carried out during the first minutes of the surprise air bombing campaign launched by the
Israeli armed forces against Gaza shortly before 11.30 a.m. on 27 December.
425. From the facts gathered by it, the Mission finds that there is insufficient information to
conclude that the Gaza police as a whole had been “incorporated” into the armed forces of the
Gaza authorities. The statement by the police spokesperson on 1 January 2009 (after the attacks
of 27 December 2008 had been carried out) cannot, on its own, justify the assertion that the
police were part and parcel of the armed forces.
426. The Mission could not verify the allegations of membership of armed groups of
policemen. In half the cases, moreover, the allegations appear to be based merely on an equation
of membership in Hamas (in itself alleged on the basis of unverifiable information) with
membership in al-Qassam Brigades, which in the view of the Mission is not justified. Finally,
even according to the study referred to by the Israeli Government, 34 policemen without any
affiliation to Hamas or a Palestinian armed group were killed in the armed operations, the great
majority of them in the bombardment of police stations on the first day of the military
operations.
285 “The operation in Gaza…”, pp. 89–95.
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427. An “obituary” published on a website of al-Qassam Brigades states that one of the
training courses at the police headquarters in Gaza on 27 December 2008 was a “military
refresher course”. That is, however, contradicted by the police spokesperson and a number of the
reports received by the Mission from NGOs. It is also not suggested by the Israeli Government
that that was a reason for attacking it. As a distinct probability, the Mission finds that the
policemen killed there were neither engaged in any military activity at the time of the attacks nor
carrying out preparations for combat. At the other police stations, the police were engaged in a
range of routine tasks, including questioning detainees and handling issues for members of the
public who were present in police facilities in the middle of an ordinary day.
5.
Legal analysis
The applicable rules of international humanitarian law
428. The general rule of international humanitarian law is that members of law-enforcement
agencies are considered part of the civilian population, unless they have been incorporated into
the armed forces of a party to the conflict.286 This principle is accepted by the Israeli
Government.287 The obligation to distinguish at all times between the civilian population and
combatants and to direct attacks only against military objectives288 (the principle of distinction)
therefore generally prohibits attacks against members of the law-enforcement agencies. In its
Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons, the
International Court of Justice recognized the principle of distinction as an “intransgressible”
principle of customary international law.
429. There are three situations in which direct attacks against members of police forces would
not constitute a violation of the principle of distinction. First, if the law-enforcement agency or
286 Article 43 (3) of Additional Protocol I provides: “Whenever a party to a conflict incorporates a paramilitary or
armed law enforcement agency into its armed forces it shall so notify the other parties to the conflict.”
287 “The operation in Gaza…” (para. 238) states that “whereas members of a civilian police force that is solely a
civilian police force, who have no combat function are not considered combatants under the Law of Armed Conflict,
international law recognizes that this principle does not apply where police are part of the armed forces of a party.”
288 Article 48 of Additional Protocol I expresses the principle in the following terms:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict
shall at all times distinguish between the civilian population and combatants and between civilian objects and
military objectives and accordingly shall direct their operations only against military objectives.
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the unit to which the policeman belongs has been “incorporated” into the armed forces, thus
conferring combatant status upon its members. Second, if individual members of the law-
enforcement agency are at the same time members of an armed group, they would be
combatants.289 Thirdly, individual members of the law-enforcement agency, like any civilians,
may not be targeted “unless and for such time as they take a direct part in hostilities.”290 Finally,
as with civilians generally, policemen might be indirectly injured or killed in an attack which is
directed at a military objective, as long as the attack complies with the principle of
proportionality.
Conclusion
430. The Mission will now draw conclusions with regard to each of these grounds potentially
justifying the attacks against the police.
431. First, as already noted above, the Mission finds that there is insufficient information to
conclude that the Gaza police as a whole had been “incorporated” into the armed forces of the
Gaza authorities. Accordingly, the policemen killed cannot be considered to have been
combatants by virtue of their membership in the police.
289 The ICRC Commentary to Additional Protocol I argues that “any interpretation which would allow combatants
as meant in article 43 to “demobilize” at will in order to return to their status as civilians and to take up their status
as combatants once again, as the situation changes or as military operations may require, would have the effect of
cancelling any progress that this article has achieved. … [Article 44] does not allow this combatant to have the
status of a combatant while he is in action, and the status of a civilian at other times” (pp. 515–516).
290 Pursuant to article 51 (3) of Additional Protocol I, civilians enjoy immunity from attack “unless and for such time
as they take a direct part in hostilities.” According to ICRC, this rule also reflects customary international law:
“Civilians are protected against attack unless and for such time as they take a direct part in hostilities” (rule 6).
Customary International Humanitarian Law…. The Mission is aware that Israel is not a party to Additional Protocol
I and reportedly does not accept the qualifying phrase “and for such time” as reflective of customary law (see Y.
Dinstein, “The ICRC customary international humanitarian law study”, Israel Yearbook on Human Rights, vol. 36
(2006), p. 11). In its report on the military operations, the Government of Israel refers to a definition of direct
participation in hostilities by Israel’s High Court of Justice as “involving all persons that perform the function of
combatants, including “a civilian bearing arms (openly or concealed) who is on his way to the place where he will
use them against the army, at such place, or on his way back from it,” as well as “a person who collected
intelligence on the army, whether on issues regarding the hostilities . . . or beyond those issues . . . ; a person who
transports unlawful combatants to or from the place where the hostilities are taking place; a person who operates
weapons which unlawful combatants use, or supervises their operation, or provides service to them, be the distance
from the battlefield as it may.” (“The operation in Gaza…”, para. 120).
The Mission is of the view that, for the purposes of the legal analysis of the attacks on the police stations considered
here, it is not decisive whether the rule binding Israel is that “civilians are protected against attack unless and for
such time as they take a direct part in hostilities” or only “unless they take direct part in hostilities”.
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432. Second, the Mission finds that the policemen killed on 27 December 2008 cannot be said
to have been taking a direct part in hostilities. Thus, they did not lose their civilian immunity
from direct attack as civilians on this ground.291
433. Third, the Mission examined whether the attacks on the police stations could be justified
on the basis that there were, allegedly, members of Palestinian armed groups among the
policemen. The question would thus be one of proportionality. The principle of proportionality is
reflected in Additional Protocol I, which prohibits launching attacks “which may be expected to
cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to the concrete and direct military
advantage anticipated.”292
434. The Mission has earlier accepted that there may be individual members of the Gaza
police that were at the same time members of al-Qassam Brigades or other Palestinian armed
groups and thus combatants. Even if the Israeli armed forces had reliable information that some
individual members of the police were also members of armed groups, this did not deprive the
whole police force of its status as a civilian law-enforcement agency.293
435. From the facts available to it, the Mission finds that the deliberate killing of 99 members
of the police at the police headquarters and three police stations294 during the first minutes of the
military operations, while they were engaged in civilian tasks inside civilian police facilities,
constitutes an attack which failed to strike an acceptable balance between the direct military
advantage anticipated (i.e. the killing of those policemen who may have been members of
Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and
members of the public who would inevitably have been present or in the vicinity). The attacks on
the Arafat City police headquarters and the Abbas Street police station, al-Tuffah police station
291 This finding does not apply to those policemen who were members of al-Qassam Brigades, who were therefore
combatants and not civilians.
292 Israel recognizes that “customary international law bars military attacks that are anticipated to harm civilians
excessively in relation to the expected military advantage.” “The operation in Gaza…”, para. 120.
293 “The presence within the civilian population of individuals who do not come within the definition of civilians
does not deprive the population of its civilian character” (Additional Protocol I, article 50 (3)).
294 These are the policemen killed at the police headquarters and police stations visited by the Mission. The overall
number of policemen killed on 27 December 2008 is around 180, according to the Orient Research Group Ltd. See
“Fatal casualties…”.
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and the Deir al-Balah investigative police station constituted disproportionate attacks in violation
of customary international humanitarian law.
436. From the facts available to it, the Mission further believes that there has been a violation
of the inherent right to life of those members of the police killed in the attacks of 27 December
2007 who were not members of armed groups by depriving them arbitrarily of their life in
violation of article 6 of the International Covenant on Civil and Political Rights.
VIII. OBLIGATION ON PALESTINIAN ARMED GROUPS IN GAZA TO TAKE
FEASIBLE PRECAUTIONS TO PROTECT THE CIVILIAN POPULATION
437. An assessment of the events occurring during the military operations in Gaza in
December 2008 - January 2009 requires an investigation of the tactics used both by the Israeli
armed forces and by the Palestinian armed groups in the context of their obligations under
international humanitarian law to take constant care to minimize the risk of harm to the civilian
population and to civilian objects. The Mission examines the extent to which the Israeli armed
forces took all feasible precautions in chapter IX, as well as in the examination of individual
incidents. In this chapter, the Mission examines allegations that the conduct of the Palestinian
armed groups placed the civilian population of Gaza and civilian objects at risk of attack.
438. In its efforts to gather more direct information on the subject, during its investigations in
Gaza and in interviews with victims and witnesses of incidents and other informed individuals,
the Mission raised questions regarding the conduct of Palestinian armed groups during the
hostilities in Gaza. The Mission notes that those interviewed in Gaza appeared reluctant to speak
about the presence of or conduct of hostilities by the Palestinian armed groups. Whatever the
reasons for their reluctance, the Mission does not discount that the interviewees’ reluctance may
have stemmed from a fear of reprisals.295
439. The Mission also addressed questions regarding the tactics used by Palestinian armed
groups to the Gaza authorities. They responded that they had nothing to do, directly or indirectly,
with al-Qassam Brigades or other armed groups and had no knowledge of their tactics.296 To
gather first-hand information on the matter, the Mission requested a meeting with representatives
295 See chapter XX.
296 Response of the Gaza authorities to the Mission.
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of armed groups. However, the groups were not agreeable to such a meeting. The Mission,
consequently, had little option but to rely upon indirect sources to a greater extent than for other
parts of its investigation.
440. In forming an opinion on the subject, the Mission did use information it had gathered in
the course of investigating certain incidents during the December-January military operations.
However, the Mission mostly reviewed the allegations made in reports by the Government of
Israel, by private individuals and organizations,297 and by NGOs.298
441. The Mission focused on allegations that Palestinian fighters had launched attacks from
within civilian areas and from protected sites (such as schools, mosques and medical units); used
civilian and protected sites as bases for military activity; misused medical facilities and
ambulances; stored weapons in mosques; failed to distinguish themselves from the civilian
population and, in so doing, used the Gazan civilian population as a shield against Israeli attack.
The Mission further sought information concerning allegations that Palestinian armed groups had
booby-trapped civilian property.299
442. The significance of these allegations is twofold. First, the alleged conduct might
constitute a violation by the Palestinian armed groups of their obligation of care to prevent harm
to the civilian population or the prohibition against the deliberate use of civilians to shield from
military activity. Second, the Government of Israel and others argue that certain attacks by
Israeli armed forces on civilian objects or protected sites were justified by the unlawful use that
Palestinian armed groups made of them. In the words of a report by the Israeli armed forces on
its shelling of a United Nations compound in which at least 600 Palestinian civilians had taken
refuge, such attacks were “the unfortunate result of the type of warfare that Hamas forced upon
297 Submissions to the Mission by the Jerusalem Center for Public Affairs, B’nai Brith International, Take A Pen,
the National Lawyers Guild, Mr. Maurice Ostroff , Ms. Yvonne Green and Mr. Peter Wertheim on behalf of a group
of Australian lawyers.
298 For example, Amnesty International, Israel/Gaza: Operation “Cast Lead”: 22 days of death and destruction,
(London, 2009); International Crisis Group, “Gaza’s unfinished business”, Middle East Report, No. 85, 23 April
2009; Human Rights Watch, Rockets from Gaza: Harm to Civilians from Palestinian Armed Groups’ Rocket
Attacks, (August 2009).
299 “The operation in Gaza…”, pp. 55–76. The Mission understands the criticisms made by the Government of
Israel to Hamas’ tactics to apply also to other Palestinian armed groups.
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the IDF, involving combat in the Gaza Strip’s urban spaces and adjacent to facilities associated
with international organizations.”300
443. The Mission will address the justifications put forward by the Government of Israel for
attacks on protected sites that it alleged were being used by Palestinian armed groups and that
are investigated in this report.
A.
Launching attacks from within civilian areas and from within or in the immediate
vicinity of protected sites
444. The Mission investigated two incidents in which the Government of Israel alleged that
Palestinian combatants had fired on the Israeli armed forces from within a United Nations
protected site or its immediate vicinity in densely populated urban areas. In the case of the
shelling in al-Fakhura Street by the Israeli armed forces on 6 January 2009 (chap. X), the
Mission accepted, on the basis of information in the reports it had seen, the possibility of mortar
attacks from Palestinian combatants in the vicinity of the school.
445. In the incident at the UNRWA compound in the neighbourhood of Rimal, in the centre of
Gaza City, senior international UNRWA staff indicate that they were unaware of any sustained
fire at the relevant time from anywhere in the nearby areas (chap. IX). In that case the Mission
was unable to make a finding as to whether any combat activity was being conducted by
Palestinian armed groups against the Israeli armed forces in that area at that time.
446. The Mission spoke with two witnesses who testified to the launching of rockets from
urban areas. One witness stated seeing rockets being launched from a narrow street and from a
square in Gaza City without providing further details as to when this occurred.301 A second
witness told the Mission that rockets may have been fired from within the Sheikh Radwan
neighbourhood north of Gaza City during the military operations in Gaza.302
300 http://dover.idf.il/IDF/English/opcast/postop/press/2202.htm. According to the Israeli Government, “when a
party to an armed conflict uses civilian and protected spaces for military purposes, those spaces become legitimate
targets for the opposing side, thereby placing civilian lives and infrastructure in great danger” (“The operation in
Gaza…”, para. 153).
301 Mission interview with RA/01, June 2009.
302 Mission interview with RA/02, June 2009.
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447. The Mission found corroboration of these witness accounts in a number of reports from
international NGOs. In reports issued following Israel’s military operations in Gaza, Amnesty
International, the International Crisis Group and Human Rights Watch each determined that the
rocket units of the Palestinian armed groups operated from within populated areas.303 Human
Rights Watch and the International Crisis Group gathered reports from civilians about instances
in which armed groups had launched or had attempted to launch rockets near residential areas.
Human Rights Watch quoted a resident of northern Gaza as stating that, on 1 January 2009,
residents of the area prevented Palestinian fighters, who they believed were preparing to launch
rockets, from entering a garden next to the building in which they lived.304 The International
Crisis Group interviewed a resident of Beit Lahia who stated that fighters used his land to fire
rockets, which he did not dare to resist, as his father had previously been shot in the leg by a
member of such an armed group when he had tried to prevent them from using his land as a
rocket launching site.305 Amnesty International conducted interviews with residents of Gaza who
stated that they had observed Palestinian fighters firing a rocket from a courtyard of a
Government school in Gaza City at a time when the schools were closed. In another area of Gaza
City, another resident reportedly showed an Amnesty International researcher a place from
which a rocket had been launched, 50 metres from a residential building.306 Amnesty
International also reported, however, that it had seen no evidence that rockets had been launched
from residential houses or buildings while civilians were still in them.
448. Both the International Crisis Group and Human Rights Watch found that the practice of
firing close to or within populated areas became more prevalent as the Israeli armed forces took
control of the more open or outlying areas.307
449. The Mission reviewed the pictures allegedly showing the launching of rockets “from
within or near residential buildings, including schools, mosques and hospitals” in the Israeli
303 Israel/Gaza: Operation “Cast Lead”: 22 days…, pp.74–75; “Gaza’s unfinished business…”, p. 3; Rockets from
Gaza..., p. 21.
304 Rockets from Gaza…, p. 22.
305 “Gaza’s unfinished business…”, p. 3, footnote 29.
306 Israel/Gaza: Operation “Cast Lead”: 22 days…, p. 74.
307 Rockets from Gaza…, p. 21; “Gaza’s unfinished business…”, p. 3.
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Government’s paper308 and in several of the submissions it received.309 The Mission notes that it
is not reasonably possible to determine whether those photographs show what is alleged. As the
Israeli Government concedes,310 many of them refer not to the December 2008 – January 2009
period, but to previous alleged instances of firing of rockets from Gaza.311
450. In view of the information communicated to it and the material it was able to review, the
Mission believes that there are indications that Palestinian armed groups launched rockets from
urban areas. In those instances in which Palestinian armed groups did indeed fire rockets or
mortars from urban areas the question remains whether this was done with the specific intent of
shielding the combatants from counter-attack. The Mission has not been able to obtain any direct
evidence on this question; nor do reports from other observers provide a clear answer.
451. According to the International Crisis Group, for instance, a fighter for Islamic Jihad
stated in an interview that “the most important thing is achieving our military goals. We stay
away from the houses if we can, but that’s often impossible”, which suggests the absence of
intent. The same NGO also reports an interview with three Palestinian combatants in January
2009 in which the fighters reportedly stated that rockets and mortars were launched in close
proximity to homes and alleyways “in the hope that nearby civilians would deter Israel from
responding”.312
452. The Mission now turns to the related but distinct question of whether and to what extent
Palestinian armed groups made use of residential housing and of protected sites, such as schools,
hospitals, mosques and United Nations facilities, in their engagements with Israeli ground forces.
453. The Mission also examined the question of the presence and activities of members of
Palestinian armed groups in chapter XI. As already mentioned, Palestinian witnesses were
generally reluctant to speak to the Mission about the activity of Palestinian armed groups in their
308 “The operation in Gaza…”, para. 155.
309 See, for instance, submission to the Mission by Mr. Maurice Ostroff.
310 “The operation in Gaza…”, para. 155.
311 The following video, referred to in a submission to the Mission by B’nai B’rith International, appears to show
the launching of rockets from within an urban area, allegedly from within a school, on 8 January 2009:
http://www.youtube.com/watch?v=UN9WzUc7iB0
312 “Gaza’s unfinished business…”, p. 3
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neighbourhoods. For the present purposes, it suffices to say that, in some of the cases, there was
evidence of the presence of Palestinian armed groups in residential areas.313
454. The Mission received a submission from a colonel of the reserve of the Israeli armed
forces that seeks to illuminate the “combat principles” of Palestinian armed groups. His report is
based on material published by Palestinian armed groups on their websites. The report describes
alleged tactics such as “seizing houses as military positions for the purpose of staging ambushes
against IDF forces” and “deploying explosive charges of various types (IEDs, penetrating,
bounding, anti personnel etc.) in the vicinity of residences and detonating them”, “booby-
trapping houses … and detonating the charges”, and “conducting fighting and sniper fire at IDF
forces operating in the built-up areas”.314
455. This submission provides useful information. It tends to show, for instance, that ground
engagements between Israeli forces and Palestinian armed groups were most intense in areas of
mixed urban-rural character on the outskirts of Gaza City, Jabaliyah and Beit Lahia.
456. The Mission notes, however, that the one incident described in the submission which it
has investigated itself illustrates the unreliability of some of the sources the report relies on. In
this incident, the source claimed that three Palestinian combatants had laid an ambush in a house
in Izbat Abd Rabbo, hurled explosives at the Israeli armed forces and managed to drag a
wounded Israeli soldier into the house. From the facts it has itself gathered, the Mission can
exclude that in this incident the Palestinian combatants managed to capture an Israeli soldier.
This example suggests that some websites of Palestinian armed groups might magnify the extent
to which Palestinians successfully attacked Israeli forces in urban areas.
457. Other sources reviewed by the Mission confirm scepticism about the intensity of attacks
on the Israeli armed forces by Palestinian armed groups in built-up areas. The Mission notes that
a thread running through many of the Israeli soldiers’ testimonies collected by the Israeli NGO
Breaking the Silence is that they had no encounters with Palestinian combatants.315 According to
313 See the case of Majdi Abd Rabbo in chapter XIV.
314 “The hidden dimension of Palestinian war casualties…”, pp. 1–2 and 20.
315 Soldiers’ Testimonies… , testimony 34, p. 76 and Rabin Academy testimonies.
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another NGO report, “Hamas fighters plainly were frustrated by their inability to engage in street
battles”. 316 Generally, the Mission received relatively few reports of actual crossfire between the
Israeli armed forces and Palestinian armed groups. This would also appear to be reflected in the
low number of Israeli soldiers killed or injured during the ground offensive.317 The Mission also
notes that in none of the incidents it investigated was there any indication that civilians were
killed in crossfire between Palestinian armed groups and the Israeli armed forces.
458. While the Mission is unable to form an opinion on the exact nature or the intensity of
combat activities carried out by the armed groups in urban residential areas that would have
placed the civilian population and civilian objects at risk of attack, their presence in these areas
as combatants is established from the information that has come to the attention of the Mission.
B.
Booby-trapping of civilian houses
459. In chapter XIV the Mission will report on different incidents in which witnesses have
described the circumstances in which they had been used by the Israeli armed forces during
house searches and forced at gunpoint to enter houses ahead of the Israeli soldiers. These
witnesses testified that they had been used in this way to enter several houses. None of them
encountered a booby trap or other improvised explosive devices during the house searches. The
Mission is also mindful of other incidents it has investigated that involved entry into civilian
houses by Israeli soldiers in different areas in Gaza. None of these incidents showed the use of
booby traps.
460. The Mission, however, recalls the allegations levelled in the reports that it has reviewed.
The Government of Israel alleges that Hamas planted booby traps in “homes, roads, schools and
even entire neighbourhoods”. It adds, “in essence, the Hamas strategy was to transform the urban
areas of the Gaza Strip into a massive death trap for IDF forces, in gross disregard for the safety
316 According to the International Crisis Group, Hamas “tried to draw Israeli troops into densely populated urban
areas, especially Hamas strongholds that had been prepared for counter-attack. A fighter described battles as a lethal
‘game of hide and seek’ in which Israel sought to lure fighters into open space, while Hamas attempted to bring
Israeli troops onto their preferred terrain. The soldiers refused the bait, Hamas fighters plainly were frustrated by
their inability to engage in street battles.” (“Gaza’s unfinished business…”, p. 3)
317 Israeli armed forces reportedly lost 10 soldiers in combat between 27 December 2008 and 18 January 2009, with
dozens of soldiers wounded. Four of the Israeli dead appear to have been killed by friendly fire (Cordesman, op. cit.,
p. 57).
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of the civilian population.”318 The Mission notes that the existence of booby-trapped houses is
mentioned in testimonies of Israeli soldiers collected by Breaking the Silence. One soldier
recounts witnessing the detonation of a powerful explosion inside a house as a bulldozer
approached it. A second soldier stated “many explosive charges were found, they also blew up,
no one was hurt. Tank Corps or Corps of Engineers units blew them up. Usually they did not
explode because most of the ones we found were wired and had to be detonated, but whoever
was supposed to detonate them had run off. It was live, however, ready…”.319 Also the reports
published by Palestinian armed groups, on which the submission to the Mission on the tactics of
Palestinian combatants by the Jerusalem Centre for Public Affairs is based, suggest that booby-
trapped civilian houses were a frequently used tactic.320 According to the Israeli Government,
“because roads and buildings were often mined, IDF forces had to target them to protect
themselves”.321
461. While, in the light of the above reports, the Mission does not discount the use of booby
traps by the Palestinian armed groups, it has no basis to conclude that civilian lives were put at
risk, as none of the reports record the presence of civilians in or near the houses in which booby
traps are alleged to have been set.
C.
Use of mosques to launch attacks against the Israeli armed forces or to store
weapons
462. The Israeli Government alleges that “Hamas abused the protection accorded to places of
worship, making a practice of storing weapons in mosques”. This assertion is supported by
pictures of Israeli soldiers in a room amid weaponry, including anti-tank weapons, which are
alleged to have been taken upon discovery of a weapons cache in a Jabaliyah mosque during the
military operations.322 The Mission notes that Israeli soldiers speaking at the Rabin Academy
318 “The operation in Gaza…”, paras 181.
319 Soldiers’ testimonies…, testimony 20, p. 48, and testimony 23, p. 54.
320 See “The hidden dimension of Palestinian war casualties…”.
321 “The operation in Gaza…”, paras 184. On the destruction of civilian houses by the Israeli armed forces, see
chapter XIII.
322 “The operation in Gaza…”, para. 164. The Mission notes that there is no mention of which mosque in Jabaliyah
the pictures allegedly refer to nor of the date on which the weapons cache was found and the pictures taken.
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“Fighters’ Talk” recount coming under fire from Palestinian combatants positioned in a
mosque.323
463. Although the Mission was not able to investigate the allegation of the use of mosques
generally by Palestinian groups for storing weapons, it did investigate the incident of a missile
attack by the Israeli armed forces against al-Maqadmah mosque on the outskirts of Jabaliyah
camp, in which at least 15 people were killed and 40 injured on 3 January 2009 (see chapter XI).
The Mission found no evidence that this mosque was used for the storage of weapons or any
military activity by Palestinian armed groups. As far as this mosque is concerned, therefore, the
Mission found no basis for such an allegation. However, the Mission is unable to make a
determination regarding the allegation in general nor with respect to any other mosque that was
attacked by the Israeli armed forces during the military operations.
D.
Misuse of medical facilities and ambulances
1.
Use of hospitals for military purposes
464. The Government of Israel alleges that
Hamas systematically used medical facilities, vehicles and uniforms as cover for
terrorist operations, in clear violation of the Law of Armed Conflict. This included the
extensive use of ambulances bearing the protective emblems of the Red Cross and
Crescent … and the use of hospitals and medical infrastructure as headquarters, situation
rooms, command centres and hiding places.324
465. As described in detail in chapter IX, the Mission investigated the attacks against al-Quds
hospital in Tal el-Hawa, one of the hospitals which were allegedly used for military purposes by
Palestinian armed groups. This hospital was directly hit by white phosphorous shells and at least
one high explosive shell on 15 January 2009. The Mission conducted extensive interviews with
al-Quds hospital staff and others who were in the area at the time of the attack and concluded
that it was unlikely that there was any armed presence in any of the hospital buildings at that
time. The Mission also investigated the attacks against al-Wafa Hospital in eastern Gaza City. As
323 “Fighters’ Talk” testimonies, pp. 4–5.
324 “The operation in Gaza…”, para. 171.
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in the case of al-Quds hospital, after hearing credible testimony from doctors at that hospital, the
Mission excluded the possibility that there were combatants inside the hospital at the time of the
attack. However, the Mission did not make any findings with respect to the possible presence of
Palestinian combatants in the surroundings of the hospital.
466. In its report, the Government of Israel states that Hamas used two units and a ground-
floor wing of al-Shifa hospital, the largest in the Gaza Strip, as a military base.325 As its sources,
it cites an interview with a “Hamas activist” captured by Israel and an Italian newspaper
article,326 which in turn bases this assertion on a single anonymous source. The Mission did not
investigate the case of al-Shifa hospital and is not in a position to make any finding with regard
to these allegations.
467. On the basis of the investigations it has conducted, the Mission did not find any evidence
to support the allegations made by the Israeli Government.
2.
Ambulances
468. The Government of Israel alleges that “Hamas made particular use of ambulances, which
frequently served as an escape route out of a heated battle with IDF forces.”327
469. The Mission investigated cases in which ambulances were denied access to wounded
Palestinians. Three cases in particular are described in chapter XI: the attempts of the Palestinian
Red Crescent Society (PRCS) to evacuate the wounded from the al-Samouni neighbourhood
south of Gaza City after the attack on the house of Ateya al-Samouni and after the shelling of the
house of Wa’el al-Samouni; the attempt of an ambulance driver to rescue the daughters of Khalid
and Kawthar Abd Rabbo in Izbat Abd Rabbo; and the attempt of an ambulance driver to
evacuate Rouhiyah al-Najjar after she had been hit by an Israeli sniper. In all three cases the
Mission found, on the facts it gathered, that the Israeli armed forces must have known that there
were no combatants among the people to be rescued or in the immediate vicinity.
325 Ibid., para. 172. “Ismail Haniyeh, the head of Hamas in the Gaza Strip, located his Southern Command centre in
one of the Shifa Hospital units, while the senior leaders of Hamas stationed themselves in another unit.”
326 Corriere della Serra, “Così i ragazzini di Hamas ci hanno utilizzato come bersagli”, 21 January 2009.
327 “The operation in Gaza…”, para. 176.
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470. The Mission is aware of an interview reportedly given by an ambulance driver to an
Australian newspaper, in which he describes how Palestinian combatants unsuccessfully tried to
force him to evacuate them from a house in which they were apparently trapped. The same driver
reportedly told the journalist that “Hamas made several attempts to hijack the ambulance fleet of
al-Quds Hospital”. He also describes how the PRCS ambulance teams managed to avert this
misuse of ambulances. According to this report, relied on by the Israeli Government, the
attempts of Palestinian combatants to exploit ambulances as shield for military operations were
not successful in the face of the courageous resistance of the PRCS staff members.328
471. This is consistent with the statements of representatives of the Palestinian Red Crescent
Society in Gaza who, in interviews with the Mission, denied that their ambulances were used at
any time by Palestinian combatants. Finally, in a submission to the Mission, Magen David Adom
stated that “there was no use of PRCS ambulances for the transport of weapons or ammunition
… [and] there was no misuse of the emblem by PRCS.”329
472. While it is not possible to say that no attempts were ever made by any armed groups to
use ambulances during the military operations, the Mission has substantial material from the
investigations it conducted and the enquiries it made to convince it that, if any ambulances were
used by Palestinian armed groups, it would have been the exception, not the rule. None of the
ambulance drivers that were directly interviewed by the Mission reported any attempt by the
armed groups to use the ambulances for any ulterior purpose. Moreover, of the ambulance staff
members and their volunteer assistants that were killed or injured in the course of their duties,
none was a member of any armed groups, so far as the Mission is aware.
E.
Forcing civilians to remain in an area for the specific purpose of sheltering that area
or forces in that area from attack
473. As discussed in more detail in other parts of the report, the Mission asked numerous
witnesses in Gaza why they had stayed in their homes in spite of the shelling, bombing and
328 Ibid., para. 177–179.
329 Communication by Magen David Adom to the Mission, 9 August 2009. Magen David Adom is Israel’s national
emergency medical, disaster, ambulance and blood bank service. It is a member of the International Federation of
Red Cross and Red Crescent Societies and has a long-standing cooperation with the Palestinian Red Crescent
Society. That no PRCS ambulances had been used to transport weapons or fighters was also stated forcefully by a
Magen David Adom representative to representatives of the Mission in Geneva on 22 July 2009.
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Israeli ground invasion. They stated that they had decided to stay put either because they had
experienced previous incursions and, based on past experience, did not think they would be at
risk as long as they remained indoors330 or because they had no safe place to go.331 In additional,
some witnesses stated that they had chosen to stay because they wished to watch over their
homes and property.332 The Mission did not find any evidence of civilians being forced to remain
in their houses by Palestinian armed groups.
474. The Mission’s attention has been drawn to a well-known incident in which women and
children followed calls to gather on the roof of the house of a Palestinian man who had been
informed by the Israeli authorities that his house would be targeted. This incident has been
documented in video footage in the public domain333 and is referred to in submissions received
by the Mission as evidence of the use of human shields. The Mission notes, however, that the
incident occurred in 2007. No such incidents are alleged by the Israeli Government with regard
to the military operations that began on 27 December 2008. The Mission received no reports of
such incidents from other sources. On the contrary, in one case investigated by the Mission,334 a
Hamas official received a phone call from the Israeli armed forces to the effect that his house
would soon be targeted. He evacuated the house with his family and alerted the neighbours to the
imminent threat so that they, too, were able to leave their homes before the missile did indeed
strike.
475. The Mission is also aware of the public statement by Mr. Fathi Hammad, a Hamas
member of the Palestinian Legislative Council, on 29 February 2009, which is adduced as
evidence of Hamas’ use of human shields. Mr. Hammad reportedly stated that
… the Palestinian people has developed its [methods] of death seeking. For the
Palestinian people, death became an industry, at which women excel and so do all people
on this land: the elderly excel, the mujahideen excel and the children excel. Accordingly,
330 Mission interview with Khaled Abd Rabbo.
331 See chapter IX.
332 Interview with Abbas Ahmad Ibrahim Halawa, 3 June 2009 (see Chapter XIV on the case of Abbas Ahmad
Ibrahim Halawa).
333 See http://switch3.castup.net/cunet/gm.asp?ai=58&ar=StandingOnRoof-V&ak=null
334 See the case of Mr. Abu Askar in chapter X.
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[Hamas] created a human shield of women, children, the elderly and the mujahideen,
against the Zionist bombing machine.335
476. Although the Mission finds this statement morally repugnant, it does not consider it to
constitute evidence that Hamas forced Palestinian civilians to shield military objectives against
attack. The Government of Israel has not identified any such cases.
F.
Mingling with the civilian population to shield combatants against attack
477. When military operations take place in areas in which civilians are present, the
importance of military dress and distinctive signs to distinguish combatants from civilians is all
the greater. The Mission notes that only one of the incidents it investigated clearly involved the
presence of Palestinian combatants. In that incident, the witness told the Mission that three
fighters trapped in his neighbour’s house were “wearing military camouflage and headbands of
the al-Qassam Brigades”.336
478. Reports on the military operations by NGOs suggest that in general members of
Palestinian armed groups did not wear military uniforms. One report states that after the
destruction caused by the Israeli air strikes at the start of the military operations, members of al-
Qassam Brigades abandoned military dress and patrolled streets “in civilian clothes”.337 A
second report states that members of the Palestinian armed groups “also mixed with the civilian
population, although this would be difficult to avoid in the small and overcrowded Gaza Strip,
and there is no evidence that they did so with the intent of shielding themselves”.338
479. Finally, on this issue, it is relevant to mention that the Israeli Government has produced
no visual or other evidence to support its allegation that Palestinian combatants “mingle
routinely with civilians in order to cover their movements”.339
335 “The operation in Gaza…”, para. 186. A video recording of this speech is available at
http://www.youtube.com/watch?v=ArJbn-lUCh4
336 See the case of Mr. Majdi Abd Rabbo in chapter XIV.
337 “Gaza’s unfinished business…”, p. 8. This report also appears to suggest that members of al-Qassam Brigades
were at least in part engaged in law enforcement and internal security functions rather than in combat with the
Israeli armed forces.
338 Israel/Gaza: Operation “Cast Lead”: 22 days….
339 “The operation in Gaza…”, para. 186.
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G.
Factual findings
480. On the basis of the information it gathered, the Mission finds that there are indications
that Palestinian armed groups launched rockets from urban areas. The Mission has not been able
to obtain any direct evidence that this was done with the specific intent of shielding the rocket
launchers from counterstrokes by the Israeli armed forces. The Mission also notes, however, that
Palestinian armed groups do not appear to have given Gaza residents sufficient warning of their
intention to launch rockets from their neighbourhoods to allow them to leave and protect
themselves against Israeli strikes at the rocket launching sites. The Mission notes that, in any
event, given the densely populated character of the northern half of the Gaza Strip, once Israeli
forces gained control of the more open or outlying areas during the first days of the ground
invasion, most -- if not all -- locations still accessible to Palestinian armed groups were in urban
areas.
481. The Mission finds that the presence of Palestinian armed fighters in urban residential
areas during the military operations is established. On the basis of the information it gathered,
the Mission is unable to form an opinion on the exact nature or the intensity of their combat
activities in urban residential areas that would have placed the civilian population and civilian
objects at risk of attack. While reports reviewed by the Mission credibly indicate that members
of Palestinian armed groups were not always dressed in a way that distinguished them from
civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian
population with the intention of shielding themselves from attack.340
482. From the information it gathered, the Mission does not discount the use of booby traps by
the Palestinian armed groups. The Mission has no basis to conclude that civilian lives were put at
risk, since none of the reports records the presence of civilians in or near the houses that were
allegedly booby-trapped.
483. On the basis of its own investigations and statements by United Nations officials, the
Mission excludes that Palestinian armed groups engaged in combat activities from United
340 It has also been reported that specialist Israeli troops operated in Gaza during the military operations in civilian
attire to liaise with informants and as francs-tireurs; Jane’s Sentinel Services, Country Risk Assessments – Israel, 30
January 2009.
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Nations facilities that were used as shelters during the military operations. The Mission cannot
discount the possibility that Palestinian armed groups were active in the vicinity of such
facilities.
484. The Mission is unable to make any determination on the general allegation that
Palestinian armed groups used mosques for military purposes. It notes that, in the one incident it
investigated of an Israeli attack on a mosque, it found no indication that the mosque was so used.
485. On the basis of the investigations it has conducted, the Mission did not find any evidence
to support the allegations that hospital facilities were used by the Gaza authorities or by
Palestinian armed groups to shield military activities and that ambulances were used to transport
combatants or for other military purposes.
486. On the basis of the information it gathered, the Mission found no indication that the
civilian population was forced by Hamas or Palestinian armed groups to remain in areas under
attack from the Israeli armed forces.
H.
Legal findings
487. Customary international humanitarian law establishes that all “parties to the conflict must
take all feasible precautions to protect the civilian population and civilian objects under their
control against the effects of attacks.”341
488. Each party to the conflict must, to the extent feasible, avoid locating military objectives
within or near densely populated areas.342 Each party to the conflict must, to the extent feasible,
remove civilian persons and objects under its control from the vicinity of military objectives.343
489. These rules of customary international law are reflected in article 57 (1) of Additional
Protocol I: “In the conduct of military operations, constant care shall be taken to spare the
341 Customary International Humanitarian Law…, rule 22.
342 Ibid., rule 23.
343 Ibid., rule 24.
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civilian population, civilians and civilian objects.” The following paragraphs of article 57 set
forth the specific precautions to be taken by a party launching an attack.344
490. In addition to the general duty to take constant care to spare the civilian population in the
conduct of military operations, international humanitarian law establishes a specific prohibition
against the use of civilians as human shields. Article 28 of the Fourth Geneva Convention
specifically addresses this issue: “The presence of a protected person may not be used to render
certain points or areas immune from military operations”. This is reinforced by article 51 (7) of
Additional Protocol I:
The presence or movements of the civilian population or individual 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. The Parties to the conflict shall
not direct the movement of the civilian population or individual civilians in
order to attempt to shield military objectives from attacks or to shield military
operations.
These provisions reflect rules of customary law.345
491. The Mission finds it useful to clarify what is meant, from a legal perspective, by using
civilians or a civilian population as a human shield. Parties to a conflict are not permitted to use a
civilian population or individual civilians in order to render certain points or areas immune from
military operations. It is not in dispute that both Palestinian armed groups and Israeli forces were
fighting within an area populated by civilians. Fighting within civilian areas is not, by itself,
sufficient for a finding that a party is using the civilian population living in the area of the
fighting as a human shield. As the words of article 57 (1) show (“shall not be used to render”, “in
order to attempt to shield”), an intention to use the civilian population in order to shield an area
from military attack is required.
344 See chapter IX.
345 Customary International Humanitarian Law…,, rule 97.
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492. From the information available to it, the Mission found no evidence to suggest that
Palestinian armed groups either directed civilians to areas where attacks were being launched or
forced civilians to remain within the vicinity of the attacks.
493. The reports received by the Mission suggest that it is likely that the Palestinian armed
groups did not at all times adequately distinguish themselves from the civilian population among
whom the hostilities were being conducted. Their failure to distinguish themselves from the
civilian population by distinctive signs is not a violation of international law in itself, but would
have denied them some of the legal privileges afforded to combatants. What international law
demands, however, is that those engaged in combat take all feasible precautions to protect
civilians in the conduct of their hostilities. The Mission found no evidence that members of
Palestinian armed groups engaged in combat in civilian dress. It can, therefore, not find a
violation of the obligation not to endanger the civilian population in this respect.
494. The conduct of hostilities in built-up areas does not, of itself, constitute a violation of
international law. However, launching attacks - whether of rockets and mortars at the population
of southern Israel or at the Israeli armed forces inside Gaza - close to civilian or protected
buildings constitutes a failure to take all feasible precautions. In cases where this occurred, the
Palestinian armed groups would have unnecessarily exposed the civilian population of Gaza to
the inherent dangers of the military operations taking place around them. This would have
constituted a violation of the customary rules of international humanitarian law referred to
above. It would also have constituted a violation of the right to life and physical integrity of the
civilians thereby endangered.
495. Although the situations investigated by the Mission did not establish the use of mosques
for military purposes or to shield military activities, the Mission cannot exclude that this might
have occurred in other cases. As far as hospitals and United Nations facilities are concerned, the
Mission found that it could not exclude that Palestinian armed groups engaged in combat
activities in the vicinity of these protected sites. The Mission wishes to emphasize that the
launching of attacks from or in the vicinity of civilian buildings and protected areas are serious
violations of the obligation on the armed groups to take constant care to protect civilians from
the inherent dangers created by military operations.
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496. The Mission asked the Gaza authorities to provide information on the sites from where
the Palestinian armed groups had launched attacks against Israel and against the Israeli armed
forces in Gaza. The Mission similarly asked whether, to their knowledge, civilian buildings and
mosques had been used to store weapons. In their response, the Gaza authorities stated that they
had no information on the activities of the Palestinian armed groups or about the storage of
weapons in mosques and civilian buildings. The Mission does not find this response to be
entirely plausible. The Mission notes, more importantly, that, whether the answer reflects the
reality or not, the Gaza authorities are obliged under international law to control the activities of
armed groups operating on the territory under their control.346 If they failed to take the necessary
measures to prevent the Palestinian armed groups from endangering the civilian population by
conducting hostilities in a manner incompatible with international humanitarian law, they would
bear responsibility for the damage done to the civilians living in Gaza.
IX.
OBLIGATION ON ISRAEL TO TAKE FEASIBLE PRECAUTIONS TO
PROTECT CIVILIAN POPULATION AND CIVILIAN OBJECTS IN GAZA
497. This chapter focuses on incidents where the Mission considered compliance by Israel
with its obligations under the Fourth Geneva Convention and customary rules of international
law in relation to taking feasible precautions. In particular, it considers whether everything
feasible was done to verify that objectives to be attacked were neither civilians nor civilian
objects and were not subject to special protection, whether all feasible precautions were taken in
respect of the choice of weapons used and whether the military advantage sought was excessive
in relation to the expected loss of civilian life or civilian objects. Before entering into specific
incidents, it considers the obligation to provide warnings in relation to attacks.
A.
Warnings
498. The Israeli Government has stated that it took the following steps to warn the civilian
population of Gaza:347
346 See chapter IV.
347 http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_population_7-Jan-2009.htm
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• The Israeli armed forces made 20,000 calls on 27 December and 10,000 on 29
December 2008;
• 300,000 warning notes were dropped over the whole of the Gaza Strip on 28
December;
• 80,000 leaflets were dropped in Rafah on 29 December;
• In the context of the beginning of ground operations on 3 January, 300,000 leaflets
were dropped in the entire Gaza Strip, especially in the northern and eastern parts;
• On 5 January, 300,000 leaflets were dropped in Gaza City, Khan Yunis and Rafah;
• In total some 165,000 telephone calls were made throughout the military
operations;348
• In total some 2,500,000 leaflets were dropped.349
499. In addition to these measures, the Israeli Ministry of Foreign Affairs explains that the
telephone calls were both direct calls and pre-recorded messages, that it made radio broadcasts,
and that it developed a practice of dropping apparently light explosives on rooftops (referred to
by some as “roof-knocking”).350
500. The Mission has reviewed the text of several of the leaflets dropped by the Israeli armed
forces and listened to all of the messages recorded on the website of the Israeli Ministry of
Foreign Affairs.351 It accepts that Israel dropped leaflets, made phone calls, left recorded
messages and dropped smaller explosives on roofs as stated by the Israeli Government.
1.
Telephone calls
348 “The operation in Gaza…”, para. 264.
349 Ibid.
350 http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_population_7-Jan-2009.htm
.With regard to roof-knocking, see, for instance, Cordesman, op. cit., p. 13 (the Israeli armed forces “developed
small 10-20 kilogram bombs that could be used as both warning shots – sometimes referred to as knocking on the
roof”…).
351 http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_population_7-Jan-2009.htm
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501. The Mission received first-hand information about some of these methods in its
interviews with witnesses in Gaza. In the report on the attack at al-Fakhura Street junction (see
chap. X), the Mission notes the credible account of Mr. Abu Askar of the telephone warning he
received as a result of which he was able to evacuate up to 40 people from his and other houses.
He received that call at around 1.45 a.m. and Israeli forces destroyed his house with a missile
strike seven minutes later.
502. The Mission is also aware of circumstances in which telephone warnings may have
caused fear and confusion. Al-Bader Flour Mills Co. (see chap. XIII) received two recorded
messages indicating the mill was to be destroyed, but neither of these was acted upon. Five days
later the mill was struck in the early hours of the morning with no warning whatsoever. The
owners of the business and their staff suffered anxiety by having to evacuate the premises on two
occasions as a result of receiving such messages when no strikes took place.
503. Israel’s Ministry of Foreign Affairs states that more than 165,000 telephone calls were
made issuing warnings. The Mission has received information that there were at least two types
of telephone calls. One was a direct and specific warning, as was received by Mr. Abu Askar.
The other was a more generic, recorded message, such as the type received by al-Bader Flour
Mills. The Mission does not know and, as far as it can determine, Israel has not indicated what
proportion of the 30,000 telephone calls was pre-recorded and more generic and what proportion
was specific.
2.
Roof-knocking
504. The Israeli Government describes that in certain circumstances its armed forces fired
“warning shots from light weapons that hit the roofs of the designated targets”—a practice
referred to as roof-knocking. The Israeli Government indicates that this practice was used when
it appeared that people had remained in their houses despite being given some previous
warning.352 It is not clear whether this was the only circumstance in which this method was
employed. The Mission heard that in the al-Daya incident (see chap. XI) the Israeli Government
352 “The operation in Gaza…”, para. 264.
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claims to have made such a warning shot, albeit to the wrong house.353 The Mission also saw in
the Sawafeary house (see chap. XIII) that a missile had penetrated the rear of the house on the
wall near the ceiling, gone through an internal wall and exited through the wall at the front of the
house near the windows. At the time (around 10 p.m. on 3 January 2009) there were several
family members in the house, who happened to be lying down. The Mission cannot say what size
of weapon was used on this occasion, although it was sufficiently powerful to penetrate three
walls, or whether it was intended as a warning.
3.
Radio broadcasts and leaflet dropping
505. The radio broadcasts that the Mission listened to appeared to be generic. For example, on
3 January 2009 a radio broadcast made the following points:
• Gaza residents are welcome to receive food and medical supplies, delivered via the
Rafah, Karni and Kerem Shalom passages, at the UNRWA centres throughout the Gaza
Strip;
• Israel calls on the population to move to city centres for its own safety.354
This warning preceded the ground phase of the military operations. Its language clearly indicates
that UNRWA centres should be regarded as places of safety and civilians may collect food from
them.
506. Leaflets dropped appear to fall into a number of categories. One leaflet did not deal with
attacks on a particular place but on the storage of weapons and ammunition:
To the residents of the Gaza Strip
The IDF will act against any movements and elements conducting terrorist activities
against the residents of the State of Israel.
The IDF will hit and destroy any building or site containing ammunition and
weapons.
353 Note that a witness has indicated that an elderly man was killed when struck by a missile some 10 minutes before
the al-Daya house was struck. The Mission has also noted significant doubts on the version of events presented by
the Israeli Government on this case, including on the issue of the warning shot.
354 http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_population_7-Jan-2009.htm
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As of the publication of this announcement, anyone having ammunition and/or
weapons in his home is risking his life and must leave the place for the safety of his
own life and that of his family.
You have been warned.355
507. In some areas specific warnings were sometimes given. One example of a sufficiently
specific warning is that issued to the residents of Rafah:
Because your houses are used by Hamas for military equipment
smuggling and storing, the Israeli Defense Forces (IDF) will attack the areas
between Sea Street and till the Egyptian border…
All the Residents of the following neighbourhoods: Block O – al-
Barazil neighbourhood – al-Shu’ara’- Keshta- al-Salam
neighbourhood should evacuate their houses till beyond Sea Street.
The evacuation enters into force from now till tomorrow at 8 a.m.
For your safety and for the safety of your children, apply this
notice.356
4.
Factual findings
508. Whether a warning is deemed to be effective is a complex matter depending on the facts
and circumstances prevailing at the time, the availability of the means for providing the warning
and the evaluation of the costs to the purported military advantage.
509. Israel was in a strong position to prepare and issue effective warnings. The preparations
for its military operations were “extensive and thorough.”357 Israel had intimate knowledge and
sophisticated up-to-date intelligence in its planning. It had the means to use the landlines and
355 Ibid.
356 “No safe place”, report of the Independent Fact Finding Committee on Gaza presented to the League of Arab
States (30 April 2009), p. 241. Note a similarly specific kind of warning issued to the residents of al-Shujaeiyah
(“The operation in Gaza…”, footnote 225).
357 Prime Minister Olmert, press conference on 27 December 2008, available at:
http://www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2008/PM_Olmert_press_briefing_IDF_oper
ation_Gaza_Strip_27-Dec-2008.htm
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mobile telephone networks. It had complete domination of Gaza’s airspace. In terms of the
practical capabilities of issuing warnings, it is perhaps difficult to imagine more propitious
circumstances.
510. The Mission accepts that the element of surprise that was sought in the initial strikes
might well have provided a degree of justification for not giving any advance notice of the time
the strikes would take place or the buildings that would be struck.358
(a)
The question of whether civilians could be expected to respond to the warnings to
leave their homes
511. The Mission recognizes that leaflets dropped from the air can have some direct benefit in
assisting the civilian population to get out of harm’s way. The effectiveness will depend on three
considerations: the clarity of the message, the credibility of the threat and the possibility of those
receiving the warning taking action to escape the threat.
512. The Mission has already cited one kind of leaflet which referred to the likelihood of
attacks on locations storing weapons and ammunitions. At the beginning of the land-air phase of
the operations, the Israeli armed forces also dropped leaflets and made broadcasts advising
people to move towards city centres.
513. There had been an intense aerial campaign from 27 December 2008 until 3 January 2009
that had seen hundreds of buildings destroyed in built-up areas of city centres. Civilians not
living in city centres were being asked to leave their homes to go to places that as far as they
could reasonably assess were already in much more danger than they were in their own homes.
In order for the warning to be effective there had to be an objective basis to believe that they
would be safer elsewhere. The Mission does not consider that such an objective evaluation could
reasonably have been made by civilians in the Gaza Strip.
514. During its meetings with people in Gaza the Mission was told on several occasions of the
sense that there was “nowhere to go”. The nature of the attacks in the first week had caused deep
358 The recognition of a legitimate element of surprise does not necessarily mean that the Mission accepts the targets
chosen were legally justifiable in the circumstances. That matter is dealt with in different parts of this report.
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shock. The widespread attacks created a dilemma not only about where to go but about whether
it was safe to leave at all.
515. Even if in the minds of the Israeli armed forces it would have been safer, from 3 January
onwards, for civilians to go to city centres, nothing that had happened in the preceding week
could lead those civilians to the same conclusion given the widespread destruction of areas and
buildings. The events that occurred in those locations after 3 January appear to support the view
that going to the city centres offered little guarantee of safety.
(b)
Events in the city centre after the warning to go there was issued
516. On 3 January 2009 the attack on al-Maqadmah mosque took place in a built-up area in
central Jabaliyah. Three days after the 3 January warning was given to move to central locations
and attend United Nations centres there was the Israeli mortar attack immediately outside a large
United Nations shelter killing at least 35 people in Jabaliyah at al-Fakhura Street.359
517. Following the attack in al-Fakhura Street, the Director of Operations in Gaza of
UNRWA, John Ging, stated in a press conference on 7 January 2009: “There is nowhere safe in
Gaza. Everyone here is terrorized and traumatized.”360
518. On 15 January the UNRWA compound in Tal el-Hawa (Gaza City) was seriously
damaged when it was struck by white phosphorous. Between 600 and 700 civilians were
sheltering there at the time and were put in grave danger. The same day the nearby al-Quds
hospital was struck directly by a number of missiles, including white phosphorous shells, again
putting staff and patients in great danger (see sect. C below).
519. The day after the UNRWA compound was hit, John Ging repeated that what had
happened there had happened throughout Gaza. He said that the United Nations and the civilian
population were “all in the same boat” and that nobody could be said to be safe in Gaza.361
359 The Mission concludes elsewhere that this attack was indiscriminate in nature (see chap. X).
360 The Daily Mail, “Gaza's darkest day: 40 die as Israel bombs 'safe haven' UN school”, 7 January 2009.
361 Press conference on humanitarian situation in Gaza (16 January 2009), available at
http://www.un.org/News/briefings/docs/2009/090116_Gaza.doc.htm. See also “No safe place”, p. 74.
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(c)
The inference that those who did not go to the city centres must be combatants
520. The warning to go to city centres came at the start of the ground invasion. In the
Mission’s view it was unreasonable to assume, in the circumstances, that civilians would indeed
leave their homes. As a consequence, the conclusion that allegedly formed part of the logic of
soldiers on the ground that those who had stayed put had to be combatants was wholly
unwarranted.362 There are many reasons why people may not have responded. In several cases
the Mission heard from witnesses about people who were physically disabled, too frail or deaf so
that it was difficult or impossible to respond to the warning. In other cases, as outlined above,
civilians who could have responded may have had legitimate reasons not to do so. The issuance
of warning is one measure that should be taken wherever possible. The fact that a warning was
issued does not, however, relieve a commander or his subordinates from taking all other feasible
measures to distinguish between civilians and combatants.363
521. Israeli armed forces had created the circumstances in which civilians could not
reasonably believe the city centres were safe. An effective warning had to make clear why, even
in those circumstances, it was better for civilians to leave than to stay in their homes.
5.
Israel’s review
522. According to press reports,364 military sources, including representatives from the
military prosecution's international law department, have agreed that more specific information,
such as more accurate timetables for strikes to be carried out and escape routes, should be given
362 See, for example, statements made by soldiers in a seminar in Tel Aviv: “At first we were told to break into a
house… Go upstairs and shoot every person we see… The upper echelons said this was allowed because anyone
remaining in this area, inside Gaza City, is incriminated, a terrorist, who did not escape.”
Transcript of seminar from Channel 10 News on file with Mission. See also Breaking the Silence, Soldiers’
Testimony from Operation Cast Lead, Gaza 2009, available at:
http://www.breakingthesilence.org.il/oferet/ENGLISH_oferet.pdf. Throughout the report soldiers indicate that the
rules of engagement employed meant that no consideration was given to the idea that there may be “innocents” and
that in the case of any doubt whatsoever soldiers were to shoot. (“That too was mentioned, that if we see something
suspect and shoot, better to hit an innocent that hesitate to target an enemy”, p. 50; “if anything arouses our
suspicion, we mustn’t hesitate because the enemy hides among civilians”, p. 51.) Note also the discussion on “wet
entry” and “dry entry” (pp. 14–15. This discussion indicates that, in approaching a house, missiles, tank fire,
grenades and machine gun fire would be used. This method of approach is borne out in the case of the Juha family.
Family members were fired upon when congregating in a room downstairs in their house in Zeytoun. See chapter
XI.
363 Note in particular the testimony of Prof. Michael Newton to the Mission at the Geneva public hearings on 7 July
2009. See http://www.un.org/webcast/unhrc/archive.asp?go=090707
364 See Ynetnews, “IDF to give better warnings before attacks”, 29 September 2007.
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in warnings. The press report goes on to say: “Fliers distributed by the IDF from now on will
also be more detailed in order to make it clear to civilians that their lives are in danger and give
them a chance to flee. It was also determined in the hearing that the military made multiple
efforts to prevent civilian casualties in January's offensive.”
523. The Mission cannot confirm if such press reports are accurate but notes two things.
Firstly, any improvements in practice in this regard are to be welcomed. Secondly, the changes,
if reported correctly, appear to address the matters that have been touched on in this section.
Those were matters that could not be considered in any way as unforeseeable in the
circumstances at the time the warnings were in fact issued. While improvements are welcome in
this case, it would also appear to indicate that circumstances almost certainly permitted much
better warnings to be given than was the case.
6.
Legal findings
524. Chapter IV of Additional Protocol I to the Geneva Conventions addresses the issue of
precautionary measures that must be taken. Article 57 (1) states that “in the conduct of military
operations, constant care shall be taken to spare the civilian population, civilians and civilian
objects.”
525. Article 57 (2) (c) requires that “effective advance warning shall be given of attacks which
may affect the civilian population, unless circumstances do not permit.”
526. The Mission regards both these provisions to be norms of customary international law.365
In addition, Israel appears to consider itself bound by the obligation to provide effective
warnings under customary law.
527. The determination of whether the circumstances permit a warning must be made in the
context of a good-faith attempt to adhere to the underlying duty to minimize death and injury to
civilians or damage to civilian objects. The key limitation on the application of the rule is if the
365 According to ICRC, article 57 (1) codifies the principle of precautions in attack and article 57 (2) (c) is a rule of
customary international law applicable to international and non-international armed conflict. Customary
International Humanitarian Law…, pp. 51 and 62.
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military advantage of surprise would be undermined by giving a warning. The same calculation
of proportionality has to be made here as in other circumstances. The question is whether the
injury or damage done to civilians or civilian objects by not giving a warning is excessive in
relation to the advantage to be gained by the element of surprise for the particular operation.
There may be other circumstances when a warning is simply not possible.
528. Article 57 (2) (c) requires the warning to be effective. The Mission understands by this
that it must reach those who are likely to be in danger from the planned attack, it must give them
sufficient time to react to the warning, it must clearly explain what they should do to avoid harm
and it must be a credible warning. The warning also has to be clear so that the civilians are not in
doubt that it is indeed addressed to them. As far as possible, warnings should state the location to
be affected and where the civilians should seek safety. A credible warning means that civilians
should be in no doubt that it is intended to be acted upon, as a false alarm of hoax may
undermine future warnings, putting civilians at risk.
(a)
Pre-recorded generic telephone calls
529. As regards the generic nature of some pre-recorded phone messages, the Mission finds
that these lacked credibility and clarity, and generated fear and uncertainty. In substance, there is
little difference between telephone messages and leaflets that are not specific. The Mission takes
the view that pre-recorded messages with generic information may not be considered generally
effective.
(b)
Warning shots delivered to roofs
530. The Mission is doubtful whether roof-knocking should be understood as a warning as
such.366 In the context of a large-scale military operation including aerial attacks, civilians cannot
be expected to know whether a small explosion is a warning of an impending attack or part of an
actual attack. In relation to the incident at the Sawafeary house recounted above, the Mission
cannot say for certain if this missile was meant to warn or to kill. It notes that, if this was meant
as a warning shot, it has to be deemed reckless in the extreme.
366 The Mission notes and agrees with a similar position set out by Diakonia in its report on Operation Cast Lead of
30 June 2009, p. 9.
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531. The legal requirement is for an effective warning to be given. This means that it should
not require civilians to guess the meaning of the warning. The technique of using small
explosives to frighten civilians into evacuation, even if the intent is to warn, may cause terror
and confuse the affected civilians.
532. The Mission does not have sufficient information to assess the accuracy of the Israeli
Government’s claim that the warning shot method was used only when previous warnings
(leaflets, broadcasts or telephone calls) had not been acted upon. However, in many
circumstances it is not clear why another call could not be made if it had already been possible to
call the inhabitants of a house. The Mission notes that these warnings all took place in situations
where the view appears to have been reached that those in the house are civilians or
predominantly civilians. If the choice is between making another call or firing a light missile that
carries with it a significant risk of killing those civilians, the Mission is not convinced that it
would not have been feasible to make another call to confirm that a strike was about to be made.
533. Finally, apart from the issue of fear and ambiguity, there is the question of danger. The
idea that an attack, however limited in itself, can be understood as an effective warning in the
meaning of article 57 (2) (c) is rejected by the Mission.
(c)
Leaflets
534. The leaflets and radio broadcasts that told people to leave their homes and head towards
city centres were in most cases lacking in specificity and clarity: people could not be certain that
the warnings were directed at them in particular, since they were being issued as far as they
could tell to almost everyone, and they could not tell when they should leave since there was
rarely an indication of when attacks would take place. Furthermore, in the circumstances created
by the Israeli armed forces, people could not reasonably be expected to flee to what appeared to
be even less safe places on the basis of such non-specific warnings. Therefore, the Mission does
not consider such warnings to have been the most effective possible in the circumstances and,
indeed, doubts that many were effective at all.
7.
Conclusions
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535. While noting the statements of the significant efforts made by the Israeli armed forces to
issue warnings, the sole question for the Mission to consider at this point is whether the different
kinds of warnings issued can be considered as sufficiently effective in the circumstances to
constitute compliance with article 57 (2) (c).
536. The Mission accepts that the warnings issued by the Israeli armed forces in some cases
encouraged numbers of people to flee and get out of harm’s way in respect of the ground
invasion, but this is not sufficient to consider them as generally effective.
537. The Mission considers that some of the leaflets with specific warnings, such as those that
Israel indicates were issued in Rafah and al-Shujaeiyah, may be regarded as effective. However,
the Mission does not consider that general messages telling people to leave wherever they were
and go to city centres, in the particular circumstances of this military campaign, meet the
threshold of effectiveness.
538. The Mission regards some specific telephone calls to have provided effective warnings
but treats with caution the figure of 165,000 calls made. Without sufficient information to know
how many of these were specific, it cannot say to what extent such efforts might be regarded as
effective.
539. The Mission does not consider the technique of firing missiles into or on top of buildings
as capable of being described as a warning, much less an effective warning. It is a dangerous
practice and in essence constitutes a form of attack rather than a warning.
540. The Mission is also mindful of several incidents it has investigated where civilians were
killed or otherwise harmed and met with humiliation and degrading treatment by Israeli soldiers,
while fleeing from locations about which some form of warning was issued. The effectiveness of
the warnings has to be assessed in the light of the overall circumstances that prevailed and the
subjective view of conditions that the civilians concerned would take in deciding upon their
response to the warning.
B.
UNRWA compound, Gaza City
541. The field office compound of UNRWA is situated in the southern Rimal area of Gaza
City. On the morning of 15 January 2009 it came under sustained shelling from the Israeli armed
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forces. At least three high explosive shells and seven white phosphorous container shells struck
the workshop and warehouse area of the compound causing massive damage as a result of
ensuing fires. Five of the shells exploded in the compound including all three high explosive
shells. Two complete container shells of white phosphorous were retrieved. Five additional white
phosphorous shells were retrieved but not in their complete form. These five shells deposited
large amounts of the phosphorus wedges contained in the shells into the compound, if not in fact
all of the wedges. At least three shells hit the Gaza Training Centre and caused light injuries to
one staff member. At the time of the attack there were between 600 and 700 civilians sheltering
in the compound. The remaining shells hit the area in and around the fuel depot and workshop.
542. The Mission has inspected the site and interviewed several of the people who were
present at the time. It has also had access to detailed written materials produced by the UNRWA
office in relation to its inquiries into the incident. It has furthermore addressed questions to the
Government of Israel regarding the use of white phosphorous munitions to strike within the
UNRWA compound and the direct military advantage pursued by their use under the
circumstances, but has received no reply.
543. The Mission will not here repeat all of the details of the attack that are recounted
accurately in a number of other reports.367 It will, however, join with others in noting the bravery
of two staff members in particular in dealing with the white phosphorous in close proximity to
thousands of litres of fuel stored in tankers. Had the fuel depot exploded, it would have caused
untold deaths and damage. The swift and courageous actions of these two people at huge
personal risk may have prevented a disaster of gigantic proportions and their efforts should be so
recognized.
544. In this particular case, the Mission’s interest lay in what was known by the Israeli armed
forces at the time, what steps were feasible to reduce the massive risk to civilian life and why
were these steps not taken.
367 For instance, Secretary-General’s summary of the Report of the United Nations Headquarters Board of Inquiry
into certain incidents in the Gaza Strip between 27 December 2008 and 19 January 2009 and reports by Human
Rights Watch (Rain of Fire: Israel’s Unlawful Use of White Phosphorous in Gaza (March 2009), pp. 41 ff) and
Amnesty International ( Israel/Gaza: Operation “Cast Lead”: 22 days of death and destruction(London, 2009), p.
31)..
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1.
The immediate context
545. Shelling had been ongoing since the night of 14 January. The areas of Tal el-Hawa and
southern Rimal had come under attack. There had been shelling close to the UNRWA compound
at various points during the night. In the morning of 15 January staff in the UNRWA compound
were instructed to remain inside as much as possible.
2.
The risks
546. The UNRWA compound contained, among other things, a substantial fuel depot. The
depot has an underground storage facility, which at the time had about 120,000 litres of fuel.
Fuel tankers parked above ground had around 49,000 litres of fuel in them. In addition to the
obvious and immediate risk of fire in these circumstances, the compound also stored large
quantities of medical supplies, food, clothing and blankets in the warehouses.
547. Conservative estimates suggest that between 600 and 700 civilians were taking shelter in
the compound at that time.
548. The principal and immediate risk was, therefore, of what might have been a catastrophic
fire caused by the ignition of the fuel in the direct vicinity of the site where hundreds of civilians
had sought shelter directly in response to the Israeli warnings of 3 January 2009.
3.
The strikes
549. The Mission considers the witnesses it interviewed about this incident to be reliable and
credible. After careful analysis of the information it received, the Mission finds that the
following can be established with a high degree of certainty:
550. Three high explosive shells hit the compound. Two landed on the Gaza Training Centre
and one landed in the car park. Complete or substantial parts of seven white phosphorous
container shells landed in the compound. The wedges in these container shells were either
discharged totally or very substantially in the compound. One shell, which was seen directly by a
senior international staff member with many years’ of active military service, detonated on
impact or only a very short distance from the ground.
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551. One high explosive shell struck the Gaza Training Centre’s yard and was witnessed by at
least two guards and left a crater.
552. Two high explosive shells landed on the roof of the education building. There are two
large holes in the roof and shrapnel all around.
553. A white phosphorous container shell struck the Project and Logistics Division Building.
554. One white phosphorous container shell hit the back of a vehicle in the spare parts store,
coming through a wall on the south side at a high point. This is believed to have caused the fire
to start in the workshop area.
555. One white phosphorous container shell or a substantial part thereof came through a wire
fence at the top of the southern boundary of the compound near the spare parts and workshop
area, causing damage to a vehicle there.
556. One white phosphorous container shell landed in the workshop embedding itself in the
concrete.
557. One white phosphorous container shell or a substantial part thereof came through the roof
of the painting bay.
558. One white phosphorous container shell or a substantial part thereof struck a manhole
cover near small warehouses storing food.
559. One white phosphorous container shell struck near a generator on concrete ground.
560. Seven of the ten strikes occurred in an area smaller than a standard football pitch. The
whole area, including the three other strikes on or near the Gaza Training Centre, would be no
more than two football pitches.
561. The precise moment when each of the strikes occurred cannot be stated with certainty but
all occurred between 8 a.m. and 12 noon.
4.
Communications and responses
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562. For the purposes of liaison with the Israeli authorities, the counterpart of the United
Nations Department of Safety and Security (DSS) is the Coordinator of Government Activities in
the Territories (COGAT). This is a unit within the Israeli Ministry of Defense. In Gaza the day-
to-day liaison and coordination activity with COGAT is carried out by the Coordination and
Liaison Administration (CLA), located on the Israeli side of the Erez crossing. CLA is the
military unit responsible for the coordination of access to and from Gaza in connection with the
facilitation of civilian and humanitarian needs. DSS at the time routinely liaised with COGAT
through CLA.
563. From 27 December until 2 January DSS communicated with COGAT/CLA by telephone
and by e-mail. The Mission is in possession of the names of the Israeli officers with whom such
contact was established and maintained. In the second phase of the conflict, COGAT
intervention increased and new personnel added to their capacity. Two new contacts were added
to those already established.
564. The most comprehensive list of relevant data was forwarded to COGAT/CLA on 3 April
2008, including all United Nations installations. As of 29 December 2008 COGAT/CLA had
been provided with an updated list of the coordinates of all United Nations offices, international
residences and pre-identified possible emergency shelters. Throughout the military operations
DSS was in almost daily communication, providing detailed information on coordinates of
relevant emergency shelters and distributions centres. The Mission has been shown the relevant
log of all such communications.
565. On the day in question DSS made at least seven phone calls to COGAT/CLA
counterparts between 8.14 a.m. and 1.45 p.m. These conversations addressed, for instance, the
proximity of Israeli fire, the damage done to UNRWA installations, requests that fire be
redirected or withdrawn, and coordination for the removal of fuel tankers.
566. Despite calls beginning at 8.14 a.m., it does not appear that COGAT/CLA was able to
confirm that contact had been established with the relevant brigade until 11.06 a.m.
567. Other information available to the Mission shows that the Deputy Director of Operations
of UNRWA, who was in Jerusalem at the time was engaged in frequent calls to senior Israeli
officials. He had received a call at 9 a.m. from John Ging, the Director of Operations at
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UNRWA, advising him of the shelling near the compound and had been asked to demand that
the shelling be stopped by calling the Israeli armed forces’ Humanitarian Coordination Centre
(HCC) in Tel Aviv. He made a total of 26 calls to the head of HCC or to his assistant as well as
to members of COGAT/CLA. He was assured on a number of occasions by the head of HCC that
shelling had stopped, but it was clear when he relayed this message back to Gaza that shelling
was continuing. The Deputy Director had warned of the immediate risk to the fuel depot and
those seeking shelter.
5.
Weapons used
568. Analysis of the shells used in the strikes that hit the UNRWA compound indicates clearly
that at least seven shells were white phosphorous shells, three of which were complete and four
of which were very substantial components of the shells. Military experts indicate that in all
probability these shells were fired from a 155 mm Howitzer.
569. Three other missiles were determined clearly by UNRWA military experts to have been
high explosive missiles.
6.
The Israeli response
570. On 15 January the Israeli Defence Minister, Ehud Barak, said the attack had been a
“grave error” and apologized, according to the United Nations Secretary–General, who had
spoken with him earlier in a meeting in Tel Aviv. The same day the Israeli Prime Minister said
that it was “absolutely true that we were attacked from that place, but the consequences are very
sad and we apologize for it”. The Israeli Welfare and Social Services Minister made subsequent
statements suggesting there had been gunfire directed at Israeli troops from adjacent premises.
He said it was shrapnel from the return fire that entered the UNRWA compound causing the
blaze.368
571. On 22 April the summary of the conclusions of the Israeli armed forces’ investigations
reported as follows:
368 http://www.jpost.com/servlet/Satellite?cid=1232292898771&pagename=JPArticle%2FShowFull
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…the IDF deployed a smoke screen in order to protect a tank force
operating in the neighbourhood from Hamas anti-tank crews who had
positioned themselves adjacent to the UNRWA headquarters. The smoke
screen was intended to block the terrorists' field of view. Information received
by the IDF shows that the smoke screen did assist in protecting the force and
prevented precise anti-tank fire against IDF forces. The smoke projectiles
were fired at an area a considerable distance from the UNRWA headquarters,
and were not intended to cause damage to either person or property. However,
it appears that fragments of the smoke projectiles did hit a warehouse located
in the headquarters, causing it to catch fire.
During the incident, claims were also made that an explosive shell or shrapnel
hit the UNRWA headquarters. The investigation showed that these were shells,
or shell fragments that were fired at military targets within the battle zone.
The damage caused to the UNRWA headquarters during the fighting in the
Tel El-Hawwa neighbourhood is the unfortunate result of the type of warfare
that Hamas forced upon the IDF, involving combat in the Gaza Strip's urban
spaces and adjacent to facilities associated with international organizations.
These results could not be predicted.
Nevertheless, it is clear that the forces did not intend, at any stage, to hit a UN
facility. Following UN complaints that an explosive shell had hit the
headquarters, the forces were ordered to cease firing explosive shells in the
region in question. Following the receipt of reports about the fire in the
warehouse, all firing in the area was stopped. The entry of fire-fighting trucks
to the area was coordinated with the IDF in order to assist in extinguishing the
fire.369
572. In its report of July 2009 on the military operations, the Israeli Government explains that
the “primary rationale” for firing white phosphorous was to “produce a smokescreen to protect
Israeli forces from the Hamas anti-tank crews operating adjacent to the UNRWA headquarters”.
The report goes on to assert:
369 http://dover.idf.il/IDF/English/opcast/postop/press/2202.htm
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The IDF sought to maintain a safety distance of several
hundred metres from sensitive sites, including the UNRWA
compound. Despite the maintenance of a safety distance, some felt
wedges and other components of the projectiles apparently landed
in the compound after the release of felt wedges in the air. The IDF
neither anticipated not intended this outcome.370
573. The Mission has a number of observations about the conclusions of the Israeli
Government. First, it does not share the circumspect or indeed understated representation of the
nature and extent of the strikes in the compound. There were ten strikes: three high explosive
shells landed and exploded in the compound; seven white phosphorous container shells
discharged completely or very substantially in the confines of a very limited space around
particularly vulnerable areas of the UNRWA compound. This is not a matter of a limited number
of wedges falling inside the compound or shrapnel or parts of shells landing in the compound as
the shells exploded elsewhere. It is important to emphasize that we are dealing with shells
exploding or discharging inside the compound in areas where hazardous material was stored.
574. Secondly, the claim that this result was neither intended nor anticipated has to be
reviewed carefully. In the first place the Mission affirms the result to be reviewed is not
fragments and wedges landing in the compound but ten shells landing and exploding inside the
compound. It is difficult to accept that the consequences were not appreciated and foreseen by
the Israeli armed forces.
575. Those in the Israeli army who deploy white phosphorous, or indeed any artillery shells,
are expertly trained to factor in the relevant complexities of targeting, including wind force and
the earth’s curvature. They have to know the area they are firing at, possible obstacles in hitting
the target and the other environmental factors necessary to ensure an effective strike. It is also
clear that, having determined that it was necessary to establish a safety distance, the presence of
the UNWRA installations was a factor present in the minds of those carrying out the shelling.
370 “The operation in Gaza…”, paras. 344 and 346.
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576. The question then becomes how specialists expertly trained in the complex issue of
artillery deployment and aware of the presence of an extremely sensitive site can strike that site
ten times while apparently trying to avoid it.
577. The Mission’s scepticism that the result was not anticipated is confirmed by the fact that
from around 8 a.m. on 15 January UNRWA officials began a series of calls to a number of
officials explaining precisely what was going on. These calls were made to the appropriate
people at COGAT/CLA as a result of prearranged coordination and further reinforced by the
numerous calls by the Deputy Director of UNRWA to senior Israeli military officials in Tel
Aviv.
578. In particular, the Israeli military officials were informed that shells had indeed struck
inside the compound by the series of phone calls made by UNRWA officials.
579. The Mission is in possession of information that indicates a senior UNRWA official
called the head of HCC in Tel Aviv and a number of his immediate subordinates several times.
In particular a call was made at 10.31 a.m. by the official to the Israeli armed forces to explain
that white phosphorous had landed in the compound and had set fire to the warehouse. He was
told “by Tel Aviv” that the firing had stopped. To be clear, this means that by 10.30 a.m. at the
latest channels of communication had been opened between Tel Aviv and those on the ground in
Gaza City responsible for the firing of the shells, albeit not necessarily directly, but sufficient to
be receiving reports of what was going on from Israeli troops on the ground.
580. At 10.30 a.m. staff at the UNRWA compound noted five white phosphorous container
shells had discharged in the confines of the compound. At 10.40 a.m. the UNRWA official was
again in direct communication with Tel Aviv explaining specifically that “the targeting is taking
place in the vicinity of the workshop” and requiring that the Israeli armed forces desist
immediately. In particular, he pointed out that what was required was a cessation of the firing for
a sustained period of time to allow staff to bring the fire under control.
581. At 11.17 a.m. the same senior UNRWA official was informed in a phone call from
UNRWA staff in the compound that a further two rounds had impacted “within the last ten
minutes”.
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582. At 11.53 a.m., in a further telephone call, the senior UNRWA official indicated to the
COGAT/CLA contact person that the firing had been unforgivable and unacceptable. He noted
that efforts had been made since 09.30 a.m. to get the firing to stop and that UNRWA had been
told in several calls that the firing had been ordered to be stopped at higher levels, yet it
continued. The UNRWA official noted that it was incomprehensible that, with the amount of
surveillance and geographic positioning system (GPS) information, the most vulnerable part of
the compound had been repeatedly struck.
583. In all the circumstances the Mission rejects the Israeli armed forces’ assertion to the
effect that it was not anticipated that the shells would land in the compound. The Israeli armed
forces were told what was happening. It no longer had to anticipate it. The Israeli armed forces’
responses in Tel Aviv and in COGAT/CLA indicate quite clearly that they understood the nature
and scale of what was happening. Their responses in particular indicate that orders had been
given to stop the firing.
7.
Factual and legal findings
584. The Mission considers that Israeli armed forces had all of the information necessary to
appreciate the danger they were creating as a result of their firing at the UNRWA installations, in
particular the fuel depot, and to the civilians gathered there. Orders were said to have been issued
to cease firing in the vicinity of the UNWRA premises.
585. The Israeli Government’s report cites with approval a passage from the report to the
Prosecutor of the International Criminal Tribunal for the former Yugoslavia in relation to the
bombing of the Federal Republic of Yugoslavia by the North Atlantic Treaty Organization
(NATO) in 1998. The Mission has also considered that report. On the issue of intent it states:
Attacks which are not directed against military objectives (particularly attacks
directed against the civilian population) and attacks which cause disproportionate
civilian casualties or civilian property damage may constitute the actus reus for
the offence of unlawful attack under article 3 of the ICTY Statute. The mens rea
for the offence is intention or recklessness, not simple negligence. In determining
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whether or not the mens rea requirement has been met, it should be borne in mind
that commanders deciding on an attack have duties:
a)
to do everything practicable to verify that the objectives to be
attacked are military objectives,
b)
to take all practicable precautions in the choice of methods and
means of warfare with a view to avoiding or in any event to minimizing
incidental civilian casualties or civilian property damage, and
c)
to refrain from launching attacks which may be expected to cause
disproportionate civilian casualties or civilian property damage.371
586. The Mission agrees that this passage correctly reflects both the nature of the intent
required and the relevant duties of a commander.
587. Even if the Israeli armed forces were under fire from anti-tank missiles from Palestinian
armed groups at the time, all of the information referred to above indicates that the commanders
in question did not take all feasible precautions in the choice of methods and means of warfare
with a view to avoiding or, in any event, to minimizing incidental civilian casualties or civilian
property damage.
588. The Mission is not attempting to second-guess with hindsight the decisions of
commanders. The fact is that the events in question continued over a period of some three hours.
In these circumstances the Israeli armed forces were not confronted by surprise fire to which
they had to respond with whatever materiel was available to them at the time. If they were faced
with anti-tank missiles, that was hardly something of which they had been unaware for an
appreciable time.
589. Statements made to the Mission by senior UNRWA international staff indicate that they
were unaware of any sustained fire at the relevant time from anywhere in the nearby areas. The
Mission notes that official statements made on 15 January by Israel’s Prime Minister had
indicated with complete certainty that firing by Palestinian armed groups had occurred from
371 “Final report to the Prosecutor…”, para. 28.
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within the UNRWA compound.372 This was later contradicted and corrected to state that the
armed groups occupied positions near to but outside the compound.373 The Mission considers it
important to record that the initial allegation was incorrect and this appears now to be accepted
as such by the Israeli.
590. The Mission concludes that the Israeli commanders knew of the location of the UNRWA
premises and indeed of the layout of the compound in terms of the most vulnerable areas and
especially the fuel depot before the shelling took place around 8 a.m.
591. Even if the Israeli Government’s position regarding the position of Palestinian armed
groups is taken at face value, the Mission concludes that, given the evident threat of substantial
damage to several hundred civilian lives and to civilian property in using white phosphorous in
that particular line of fire, the advantage gained from using white phosphorous to screen Israeli
armed forces’ tanks from anti-tank fire from armed opposition groups could not be deemed
proportionate.
592. Having been fully alerted not to the risks but to the actual consequences of the course of
action, Israeli armed forces continued with precisely the same conduct as a result of which
further shells hit the compound. Such conduct, in the Mission’s view, reflects a reckless
disregard for the consequences of the choice of the means adopted in combating the anti-tank fire
the Israeli authorities claim they were facing. The decision to continue using the same means in
the face of such knowledge compounds that recklessness. It deprived the UNRWA staff of the
ability to contain the fires that had been caused and led to millions of dollars worth of damage
that could have been avoided. It also put in danger some 700 lives, including staff and sheltering
civilians.
593. The Mission, therefore, concludes on the basis of the information it received and in the
absence of any credible refuting evidence that Israeli armed forces violated the customary
372 Israel's Prime Minister, Ehud Olmert, told the United Nations Secretary-General that troops shelled the building
in response to Hamas gunfire coming from within, but nonetheless said it should not have happened. Israeli troops
"were attacked from there and the response was harsh", Olmert said. "It is absolutely true that we were attacked
from that place, but the consequences are very sad and we apologize for it," he added. See
http://www.guardian.co.uk/world/2009/jan/15/israel-gaza-offensive-truce-talks. The same quotation is reported in
multiple sources.
373 ”The operation in Gaza…”, para. 347.
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international law requirement to take all feasible precautions in the choice of means and method
of attack with a view to avoiding and in any event minimizing incidental loss of civilian life,
injury to civilians and damage to civilian objects as reflected in article 57 (2) (a) (ii) of
Additional Protocol I to the Geneva Conventions.
C.
Al-Quds hospital, Tal el-Hawa, Gaza City
594. Al-Quds hospital belongs to the Palestinian Red Crescent Society (PRCS). It consists of
three buildings facing west towards the sea and occupying the corner of Jami’at ad-Duwal al-
Arabiyah Street and al-Abraj Street in the area of Tal el-Hawa. The building nearest the corner is
seven storeys high. Its principal purposes were administrative and cultural rather than medical. It
stored a huge quantity of PRCS archives. The middle building contains the accident and
emergency treatment area as well as other offices. The building furthest from the corner is the
main medical building with operating theatres in the basement. About 200 metres eastwards on
al-Abraj Street is the Palestinian Red Crescent ambulance depot. These buildings all suffered
significant damage in the course of an Israeli bombardment on 15 January 2009, which included
the use of white phosphorous. The attacks endangered the lives of the staff and more than 50
patients in the hospital. There was no warning given for any of the attacks.
595. The Mission met staff from the hospital on six separate occasions, three of them on site
visits. Two extended site visits included inspections not only of the hospital premises, but also of
the ambulance depot, of the damage done to apartment buildings on that street and of the area
opposite the hospital to assess the damage done by fighting in that area. Three long interviews
were carried out with one doctor individually, another was carried out with two doctors together
and there were two group meetings with four and five doctors, respectively. The Mission also
received a considerable body of photographs and digital video footage of the events of the day in
question. It furthermore addressed questions to the Government of Israel regarding the use of
white phosphorous munitions against al-Quds hospital and the direct military advantage pursued
by their use under the circumstances, but received no reply.
596. The doctors with whom the Mission spoke all occupied senior positions but also
witnessed the events that occurred throughout that day. The Mission was impressed with their
objectivity and the genuine distress several of them showed at being unable to help or protect the
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sick and wounded who had come to the hospital. Throughout that day many of the staff,
including the doctors, took exceptional risks to stop fire spreading, including by removing white
phosphorous wedges from near diesel tanks. One doctor in particular showed remarkable
courage. He left the hospital to drive an ambulance through artillery shelling as he sought to
bring an eight-year-old girl to al-Shifa hospital for treatment which he was no longer able to
provide in al-Quds. Having taken the girl there, he drove back to the hospital in the same
conditions to continue assisting the efforts to fight the fires.
1.
The facts
597. When the Israeli air offensive began on 27 December a government building opposite the
al-Quds administrative building on al-Abraj Street was almost totally destroyed. The building
had previously served as a criminal detention centre and is still referred to locally by that
designation although it had recently been used for other purposes, including customs
administration. The same building was reportedly struck on a number of other occasions after 27
December. When the Mission visited in June 2009, the site was completely demolished.
598. Diagonally opposite al-Quds Hospital on Jami’at ad-Duwal al-Arabiyah Street was
another building rented to the Government and used primarily for public registry functions.
Today only the ground floor of the building remains. Witnesses indicate that the upper floors had
been destroyed, probably by artillery fire, around 6 and 7 January.
599. Three senior doctors at the hospital and two residents from al-Abraj Street indicated that
at some point between 3 and 6 January several tanks were stationed several hundred metres east
of al-Quds hospital, visible from the ambulance depot. Throughout the days of 5, 6, 7 and 8
January there was significant artillery fire on a number of civilian apartment buildings on al-
Abraj Street. On 8 January 2009 the seventh-floor apartment of Dr. Jaber Abu al-Naja was
struck. His wife and son-in-law were killed immediately as they sat on the balcony of the
apartment eating pastries. His wife was cut in half by the explosion and his son-in-law was
thrown from the balcony on to the street below. His daughter, Ihsan, was seriously injured and
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taken to al-Quds hospital for treatment. Dr. Jaber Abu al-Naja is the former Ambassador of the
PLO to Senegal and a well-known Fatah politician.374
600. By 15 January the area immediately to the south of al-Quds hospital (the customs
building and the registry building) had been totally or very substantially destroyed. The area to
the east on al-Abraj Street had been significantly attacked by artillery fire.
601. By this time a large number of civilians (several hundreds) had also gathered in the
hospital buildings seeking safety.
602. During the night of 14 January Israeli armed forces began an extended barrage of artillery
fire over the area. It continued into the morning of 15 January. Between 8 and 9 a.m. doctors in
the main building were in the principal meeting room when shells landed on either side of the
building. They saw white phosphorous wedges burning near a container of diesel and efforts
were successfully made to move those away. The initial explosions had blown out the office
windows. At about the same time it became apparent that the administrative building on the
corner had also been hit. The hospital building next to it has a large timber-built component. The
risk of fire spreading was immense and a witness described how hospital staff, including senior
doctors, all sought to break, by hand, the wooden bridge way that linked the administrative
building to the hospital building to prevent the fire from spreading.
603. Shortly after the initial explosions and fire were observed, a tank shell directly penetrated
the rear of the middle hospital building. That part of the building is made of corrugated iron and
the entry point of the shell is easily detectable. The shell then penetrated the inner concrete wall
of the hospital where the pharmacy was located. The pharmacy was completely destroyed as a
result. An eyewitness described that, through the holes made in the corrugated iron, he observed
a tank on a road between two buildings about 400 metres eastwards. Although he could not say
whether it was this tank that had struck the hospital directly, it was in a direct line in relation to
the entry point of the shell.
374 Interview with Dr. Jaber Abu al-Naja, 4 July 2009.
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604. Throughout the day the hospital was unable to procure the assistance of civil defence
forces or other fire-fighting support. As a result, the staff of the hospital were almost entirely
consumed with the task of saving the buildings and ensuring the safety of patients.
605. It was not until around 4 p.m. that it was possible to coordinate an evacuation of hospital
patients with the assistance of ICRC, which made clear upon arrival that it would be able to carry
out this procedure only once. Those not evacuated at this point were relocated to the operating
theatres of the hospital.
606. At around 8 p.m. another fire broke out causing serious damage to the main hospital
building. As a result of this fire it was decided to carry out a total evacuation of the remaining
patients as well as a number of local residents who had sought refuge in the hospital. It was at
this stage that one of the senior doctors took an eight-year-old girl who had been struck by a
bullet in the jaw and was critically ill to al-Shifa hospital, where she later died. At that point he
says he felt that there was very heavy fire in the area and that there appeared to be some attempts
to aim directly at or near to the ambulance.
607. Meanwhile, 200 metres to the east in al-Abraj Street the PRCS ambulance depot had also
been severely damaged. One of its principal buildings was entirely destroyed. The Mission also
saw the remnants of three PRCS ambulances that had been parked at the entrance to the depot.
Two had been crushed by tanks but not burned out. The other ambulance showed signs of having
been struck directly in the front below the windscreen by a missile of some description and
having been burned out.
608. The devastation caused to both the hospital buildings, including the loss of all archives in
the administrative building, and the ambulance depot was immense, as was the risk to the safety
of the patients.
609. The Mission examined a number of the shells retrieved by the hospital staff and reviewed
footage taken at the time as well as still photographs.
2.
The Israeli position
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610. The Israeli authorities did not specifically mention the incident at al-Quds hospital in the
conclusions of their investigations on 22 April 2009.375
611. In its report of July 2009 (para. 173) the Israeli Government quotes part of an article from
Newsweek magazine:
One of the most notorious incidents during the war was the Jan. 15
shelling of the Palestinian Red Crescent Society buildings in the downtown
Tal-al Hawa part of Gaza City, followed by a shell hitting their Al Quds
Hospital next door; the subsequent fire forced all 500 patients to be
evacuated. Asked if there were any militants firing from the hospital or the
Red Crescent buildings, hospital director general Dr. Khalid Judah chose his
words carefully. ‘I am not able to say if anyone was using the PRCS
buildings [the two Palestine Red Crescent Society buildings adjacent to the
hospital], but I know for a fact that no one was using the hospital.’ In the
Tal-al Hawa neighborhood nearby, however, Talal Safadi, an official in the
leftist Palestinian People's Party, said that resistance fighters were firing
from positions all around the hospital. He shrugged that off, having a bigger
beef with Hamas. ‘They failed to win the battle.’ Or as his fellow PPP
official, Walid al Awad, put it: ‘It was a mistake to give Israel the excuse to
come in.’376
While the Israeli Government does not comment further on the specific attack, it would
appear to invoke these comments to justify the strikes on the hospital and surrounding
area.
612. The Mission understands that the Israeli Government may consider relying on journalists’
reporting as likely to be treated as more impartial than reliance on its own intelligence
information. The Mission is nonetheless struck by the lack of any suggestion in Israel’s report of
July 2009 that there were members of armed groups present in the hospital at the time.
375 Annex B addresses some allegations regarding the use of ambulances, but not the attack on the hospital. See
http://dover.idf.il/IDF/English/Press+Releases/09/4/2202.htm
376 “Hamas and its discontents”, 20 January 2009.
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3.
Factual findings
613. The Mission finds that on the morning of 15 January the hospital building and the
administrative building were struck by a number of shells containing white phosphorous and by
at least one high explosive shell. The fires these caused led to panic and chaos among the sick
and wounded, necessitated two evacuations in extremely perilous conditions, caused huge
financial losses as a result of the damage and put the lives of several hundred civilians including
medical staff at very great risk.
614. The Mission also notes that, as a result of the conditions the attack created, the hospital
was unable to provide the necessary care for an eight-year-old girl. Despite heroic attempts to
save her, she died later in another hospital. The girl had been shot by an Israeli sniper. The
Mission finds the Israeli armed forces responsible for her death.
615. On the issue of armed groups being present in the hospital buildings, the Mission does
not agree that anything in the extract cited above from Newsweek magazine justifies the
conclusion that the hospital premises were being used by armed groups. The fact that Dr. Judah
spoke with certainty about matters within his knowledge cannot be presumed to mean that he
believed other parts of the hospital premises were being used by armed groups. That may be
journalistic gloss and is tantamount to putting words in the mouth of Dr. Judah. The comments
attributed to Mr. Safadi that “resistance fighters were firing from positions all around the
hospital” can mean either that people were inside the hospital firing or were in positions outside
but near to the hospital. The journalist did not clarify precisely what was meant.
616. The Mission, having carried out over eight hours of interviews with senior and junior
staff, and having sought to verify the matter with others, including journalists who were in the
area at that time, has concluded that it is unlikely there was any armed presence in any of the
hospital buildings at the time of the attack.
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617. The Mission finds that no warning was given at any point of an imminent strike and at no
time has the Israeli Government suggested such a warning was given.377
618. Reviewing the scene at the time of the strikes on al-Quds hospital, it is important to bear
in mind that a great deal of destruction had already occurred and that buildings with an apparent
connection to the local government had been attacked and largely destroyed. As such, Israeli
tanks had a relatively clear view of the area immediately to the south of the hospital. The
Mission also notes that as a result of the attacks on al-Abraj Street by tanks for several days, the
scope for resistance, if any, from that particular quarter had been significantly reduced.
619. The Mission is aware of reports that there was significant resistance from Palestinian
armed groups in the Tal el-Hawa area on the night of 14January.378 Information available alleges
that on the night of 14 January Israeli troops had entered buildings on al-Abraj Street, used
human shields to check if there was any presence of enemy combatants or explosive devices and
found none. Reports do not specify the nature, scale or precise location of resistance in Tal el-
Hawa. The Mission notes that in the buildings directly opposite al-Quds hospital on Jami’at ad-
Duwal al-Arabiyah Street there is very little sign of damage to any of the buildings on that side
of the street, and certainly nothing that compares to the damage to the buildings on al-Abraj
Street.
620. The Mission takes into account the damage that had already occurred between 27
December and 8 January on al-Abraj and Jami’at ad-Duwal al-Arabiyah Streets, and the lack of
apparent damage to the buildings directly opposite the hospital on Jami’at ad-Duwal al-Arabiyah
Street. It also takes account of the sighting of at least one tank whose direct line of fire, bearing
in mind that it was surrounded by tall buildings on both sides, was the hospital itself. It also
notes the credible sightings of Israeli aircraft in the area at various points throughout the day. It
further notes the extensive damage to the ambulance depot at the same time as the strikes on the
377 In its conclusions of its investigations published on 22 April, the Israeli armed forces highlight the fact, in
connection with its investigation into allegations of attacks on medical services, that they gave warnings. One
related to an ambulance and another to a clinic. There is no mention of al-Quds hospital. See
http://dover.idf.il/IDF/English/Press+Releases/09/4/2202.htm
378 The Mission has noted a witness account in relation to Israeli armed forces’ use of human shields on al-Abraj
Street on the night of 14 January, thus indicating that there was indeed a very active Israeli presence on the ground.
See Al Mezan Center for Human Rights, “Hiding behind civilians: April 2009 update report”, p. 8.
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hospital occurred and the apparently unexplainable crushing of ambulances parked outside the
depot.
621. In the light of all these considerations, the Mission finds that there are reasonable grounds
to believe that the hospital and the ambulance depot, as well as the ambulances themselves, were
the object of a direct attack by the Israeli armed forces in the area at the time and that the
hospital could not be described in any respect at that time as a military objective.
4.
Legal findings
622. Article 18 of the Fourth Geneva Convention provides that civilian hospitals may in no
circumstances be the object of attack but shall at all times be respected and protected by the
parties to the conflict.
623. Article 19 provides that the protection to which civilian hospitals are entitled shall cease
“only after due warning has been given, naming, in all appropriate cases, a reasonable time limit
and after such warning has remained unheeded.”
624. Even in the unlikely event that there was any armed group present on hospital premises,
there is no suggestion even by the Israeli authorities that a warning was given to the hospital of
an intention to strike it. As such the Mission finds on the information before it that Israeli armed
forces violated articles 18 and 19 of the Fourth Geneva Convention.
625. On considering the information before it, the Mission takes the view that there was intent
to strike the hospital, as evidenced in particular by the high explosive artillery shell that
penetrated the rear of the hospital and destroyed the pharmacy.
626. Even if it is suggested that there was no intent to directly strike the hospital but that
Palestinian armed groups had taken up positions near al-Quds hospital, the Israeli armed forces
would still have been bound to ensure that risk of death, injury or damage to the people in the
hospital or the hospital itself would not be excessive in relation to the military advantage
anticipated in attacking the hospital.
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627. Taking into account the weapons used, and in particular the use of white phosphorous in
and around a hospital that the Israeli armed forces knew was not only dealing with scores of
injured and wounded but also giving shelter to several hundred civilians, the Mission finds,
based on all the information available to it, that in directly striking the hospital and the
ambulance depot the Israeli armed forces in these circumstances violated article 18 of the Fourth
Geneva Convention and violated customary international law in relation to proportionality.
D.
Attacks on al-Wafa hospital, 5 and 16 January 2009
628. The Mission interviewed three senior doctors of al-Wafa hospital. One was Dr. Khamis
el-Essi, its Director. The two other doctors do not wish to be identified. The Mission has also
reviewed information in the public domain in relation to the various alleged attacks on the
hospital.
629. Al-Wafa hospital is located at the eastern part of al-Shujaeiyah (east Gaza City), very
close to the Israel-Gaza eastern border. It was founded in 1996 and provides long-term care to
those suffering from head and spinal injuries. Many patients are elderly. It can accommodate
over 50 patients.
630. The hospital consists of three buildings. From south to north these are the administrative
building (three floors), the hospital buildings (rooms of patients and surgeries, seven floors) and
the building for the elderly (reception and rehabilitation, three floors).
1.
The facts
631. The hospital was the object of a significant attack on 16 April 2008. Tanks fired in and
around the hospital area, damaging a large number of patient rooms and causing significant
destruction of the building for rehabilitative care for the elderly. Hospital staff indicate there was
no armed presence inside the hospital at that time but cannot say whether there may have been a
presence outside.
632. During the military operations, the hospital was attacked again. Despite media reports
that a warning had been given, hospital staff deny that any specific warning was received.
Leaflets had been dropped in the area with general indications that support of Hamas would be
punished. The hospital had also received a number of telephone warnings with recorded
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messages but with no specific indication that the hospital itself would be the object of an attack,
much less with an indication of when that would occur. One doctor indicated that the hospital
had received around four such messages each day since 27 December 2008.
633. On 5 January, the hospital was attacked with intensive artillery fire, including white
phosphorous shells. Senior doctors indicate that generic recorded telephone warnings were
actually received during the shelling. The latest warning the hospital received on 5 January was
at 4.30 p.m. Following this, at around 12.30-1 a.m. on 6 January, white phosphorous shells
landed in the area surrounding the administrative building and on its roof.
634. The white phosphorous caused damage to the administrative building only, destroying
the roof.
635. All three witnesses of the senior medical staff confirm absolutely that there was no
presence of any armed resistance inside the hospital. They are not able to confirm or deny the
presence of such elements outside of the hospital.
636. The hospital was attacked again with artillery fire on 16 January 2009 at 2 a.m. No
specific warning was given. Again a general recorded message had been received saying that
people located in the border areas should leave and threatening punitive measures to those who
stayed. Again doctors confirm there was no armed presence inside the hospital but cannot say
what was occurring outside it.
637. The attack damaged the building for elderly patients on the ground and third floors as
well as the roof. It damaged the third and fourth floors of the central hospital building.
638. Doctors estimate that the tanks were as close as 70 metres from the hospital.
639. The damage to the hospital (as a result of the two attacks) is estimated at US$ 550,000.
640. As to why the hospital was the subject of these attacks, doctors speculate that its location
close to the border is one possible reason. Another relates to the rumour that Israel believes that
Muhammad al-Deif, a well-known Hamas militant, is treated inside the hospital.
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641. According to one witness in the hospital, Israeli armed forces tried to assassinate Mr. al-
Deif on 12 July 2006. Although he survived the assassination attempt, he was badly hurt and,
according to some rumours, his legs were amputated and he became blind. It seems that Israel
believes that he receives some rehabilitation and medical treatment at al-Wafa hospital.
642. On 5 February 2003, for instance, Israeli snipers shot and killed two staff nurses who
were on duty inside the hospital (Abd al-Karim Lubad and Omar Hassan, both aged 21).379
2.
Factual findings
643. The Mission notes that the three witnesses interviewed are senior doctors in the hospital.
The Mission found them to be credible and reliable. They clarified a number of apparently
inaccurate statements that have appeared in press reports, especially regarding the nature of the
warnings given.
644. The Mission considers that the warnings given cannot be considered as a warning within
the meaning of article 19 of the Fourth Geneva Convention. It was not specific and no indication
was given about when the attack would take place or how much time there was to evacuate the
hospital.
645. As to the reasons for the multiple attacks on the hospital in 2003, 2008 and 2009, the
Mission is not in a position to comment.
3.
Legal findings
646. The Mission finds that the choice of deploying white phosphorous shells in and around
such a building, where patients receiving long-term care and suffering from particularly serious
injuries were especially vulnerable, was not acceptable in the circumstances. The Mission is
particularly concerned about the attack on the hospital on 16 January from such close proximity.
Even if there was some degree of armed resistance in the area (which the Mission cannot
confirm), commanders in deploying such weaponry must take into account all the facts and
circumstances.
379 See http://www.hrea.org/lists/hr-health-professionals/markup/msg00099.html
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647. The Mission considers the use of white phosphorous in such an area as reckless and not
justifiable in relation to any military advantage sought in the particular circumstances.
648. The Mission considers that the general protection given to hospitals indicates the need for
particular consideration to be given to the use of such especially hazardous materials. The failure
to provide sufficient warning indicates in the Mission’s view a wilful failure to consider
seriously the consequences of using such weapons in those circumstances.
649. The Mission notes that the case of al-Wafa hospital demonstrates the complete
ineffectiveness of certain kinds of warnings. The information the Mission has received points
towards a kind of repetition and routine warning system taking no account at all of the realities
of the hospital.
650. As such the Mission considers that, from all the information available to it, the Israeli
armed forces violated articles 18 and 19 of the Fourth Geneva Convention as well as customary
international law as reflected in Additional Protocol I, articles 57 (2) (b) and (c).
X.
INDISCRIMINATE ATTACKS BY ISRAELI ARMED FORCES RESULTING IN
THE LOSS OF LIFE AND INJURY TO CIVILIANS
A.
The shelling in al-Fakhura Street by Israeli armed forces
651. In the afternoon of 6 January at least four mortar bombs fired by Israeli armed forces
exploded near the al-Fakhura junction in the al-Fakhura area of the Jabaliyah camp in northern
Gaza.380
652. The Mission interviewed Mr. Muhammed Fouad Abu Askar on three occasions. His
brother and two sons were killed in the attack.381 It also met surviving members of the al-Deeb
380 Interviewees’ statements vary, asserting between four and six shells landed. The Mission saw for itself what it
assessed to be the effects of mortars that landed. The crater in the orchard beside the al-Deeb house may have been
caused by a mortar, but given the nature of the surroundings it is less easy to tell in terms of shrapnel patterns. The
Mission does not reject the possibility that more landed but was not able to inspect those sites or to come to a firm
view confirming the additional shells.
381 Mr. Abu Askar is a Hamas member. He also provided testimony at the public hearings in Gaza. He was detained
on the charge of being a member of Hamas in 1992. He is the Director-General for Religious Affairs (a voluntary
position) and is on the Dialogue Committee, organizing the pilgrimage to Mecca (Saudi Arabia). He is in charge of
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family on two occasions.382 The Mission interviewed four men who had lost family members in
the attack, the Director of the UNRWA premises that were being used as a shelter for civilians
and a number of journalists who covered the story. In addition, the Mission has seen a number of
statements provided to organizations in Gaza in the form of affidavits. The Mission has also
considered to the degree possible the information available from Israeli sources on the
circumstances of the strike.
B.
The facts surrounding the Israeli armed forces’ mortar shelling
653. On 5 January 2009 UNRWA had opened the elementary school on al-Fakhura Street to
provide shelter to civilians fleeing the areas where the Israeli armed forces had entered.
654. The Mission spoke on two occasions with the Director of the shelter about its
management. He said that about 90 per cent of those in the shelter had come from outside of
Jabaliyah camp, largely from the al-Atatra area. He explained that the shelter was guarded by
security staff at its entry points and that all people coming in were registered by name and
searched to ensure no weapons were being taken into the premises.
655. UNRWA has confirmed to the Mission that the Israeli armed forces were fully aware that
the school was being used as a shelter from 5 January 2005. UNRWA materials indicate that
there were 1,368 people in the shelter at the time.
656. About 16 hours prior to the shelling on the afternoon of 6 January 2009, Israeli armed
forces had already carried out at least one strike, destroying the house of Mr. Abu Askar. At
around 1.45 a.m. on 6 January 2009, Mr. Abu Askar received a personal telephone call from the
Israeli armed forces advising him that he should evacuate the house and everyone in it because it
was going to be destroyed by an air strike. The building housed not only his immediate family
but a large number of his extended family, about 40 in all. Mr. Abu Askar responded quickly,
evacuating not only his own extended family but also advising neighbours of the imminent
the Hamas Follow-Up Committee in North Gaza related to the settlement of disputes between Hamas and other
groups in the Occupied Palestinian Territory. He has a master’s degree in education and is currently pursuing a PhD
in the Syrian Arab Republic. He denies any involvement in armed militant activities.
382 Two of the members of the family also presented their testimony at the public hearings in Gaza.
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strike. The survivors of the al-Deeb family confirm they were advised at this time by Mr. Abu
Askar of the call he had received.
657. The house was struck by a missile from an F-16 according to Mr. Abu Askar about seven
minutes after the call was received. Several hours later, at around 6 a.m., he returned to the site
of the house with members of his family hoping to retrieve some items of furniture. There he
noticed that a number of other houses in the area also appeared to have been hit at some time in
the intervening four hours. In the course of that day Mr. Abu Askar and members of his family
took various steps to prepare the move of the family to rented accommodation nearby.
658. Mr. Abu Askar was in the street at around 4 p.m., when several mortars landed. He
believes that there were about 150 people in the street at the time. The Director of the shelter
confirmed that the street outside the school was generally busy. It had become busier than usual
due to the large influx of people into the school looking for shelter. Some relatives were coming
to the school to visit those who had recently arrived and new people were arriving to seek
shelter, including with belongings on donkey carts.
659. Witnesses indicate that all of the explosions were over within around two minutes. One
shell landed directly in the courtyard outside the al-Deeb house, where most of the family was
gathered. Surviving family members interviewed by the Mission explained that nine members of
the family were killed immediately. Ziyad Samir al-Deeb lost both legs as a result of the blast.383
Surviving family members and neighbours carried the dead and injured one after another to
hospital. Ambulances came, but most casualties were transported in private cars. Alaa Deeb, a
daughter of Mo’in Deeb, was taken to al-Shifa hospital and thereafter to Egypt, where she died
of her injuries. In total, 11 members of the family died, including four women and four girls.
660. Apart from the shell that landed in the al-Deeb courtyard, three other shells landed in the
street outside. The total spread of the four mortars was a little over 100 metres. The Mission
cannot specify in which order the mortars fell, but proceeding southwards from the al-Deeb
house along al-Fakhura Street, the Mission saw the impact of another mortar, 45 metres away, a
third was seen a further 50 metres south and a fourth a further 10 metres south.
383 Ziyad al-Deeb testified before the Mission at the public hearings in Gaza along with his uncle.
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661. The three other shells that the Mission could identify as having landed at different places
on al-Fakhura Street killed at least 24 people. The witnesses estimate that up to another 40 were
injured by the blasts.384 The Mission has not been able to verify those figures, but having
inspected the site and viewed the footage, it does not consider these numbers to be exaggerated.
662. Among those killed immediately were two sons of Mr. Abu Askar, Imad, aged 13, and
Khaled Abu Askar, aged 19. Mr. Abu Askar’s brother Arafat was also killed.
663. The Director of the UNRWA school shelter confirmed to the Mission that the blasts had
damaged the part of the school building facing onto al-Fakhura Street. Up to nine people were
injured. One boy of 16, who was sheltering in the school but was in the street at the time, was
killed. No one inside the school was killed. He confirmed that no shell had directly hit the United
Nations premises either inside or outside.
664. Witnesses have described the scene of chaos and carnage caused by the bombs. They
indicate that people were ferried to hospitals in private cars because of the difficulties in reaching
ambulance services at the time, although some ambulances did arrive.
C.
The Israeli position
665. Contradictory accounts emerge from official Israeli statements. The initial position
accepted that Israeli forces had struck inside the UNRWA school, claiming to be in response to
Hamas fire. A later response accepted that Hamas had not been in the UNRWA school but had
allegedly fired from 80 metres away from the school. Finally, the Israeli Government claimed
that in fact Hamas operatives were launching mortars at Israeli armed forces for around one
hour, firing every few minutes until the Israeli armed forces identified them and returned fire,
killing a number of them.
666. On 6 January the Israeli armed forces posted the following statement on their website:
An initial inquiry by forces on operating in the area of the incident
indicates that a number of mortar shells were fired at IDF forces from
384 A number of reports put the total figure of deaths at 42 or 43, including the al-Deeb family deaths. The Mission
has not been able to contact all the relatives of those reported to have died.
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within the Jebaliya school. In response to the incoming enemy fire, the
forces returned mortar fire to the source.
This is not the first time that Hamas has fired mortars and rockets
from schools, in such a way deliberately using civilians as human shields
in their acts of terror against Israel. This was already proven several
months ago by footage from an unmanned plane showing rockets and
mortars being fired from the yard of an UNRWA school.
Again, we emphasize that this announcement is based on an initial
inquiry.
After an investigation that took place over the past hour it has been
found that among the dead at the Jebaliya school were Hamas terror
operatives and a mortar battery squad who were firing on IDF forces in the
area. Hamas operatives Immad Abu Iskar and Hassan Abu Iskar were
among terrorists identified killed.385
667. Further statements from spokespersons for the Prime Minister,386 the Foreign Ministry
and the Israeli armed forces all adhered to the position set out in the statement cited above. In
385 http://www.mfa.gov.il/MFA/Government/Communiques/2009/Initial_inquiry_school_incident_6-Jan-2009.htm
386 On 7 January in a television interview on the British Broadcasting Corporation’s programme Newsnight, Mr.
Regev indicated that he believed that the Israeli armed forces had attacked the school because they had come under
fire, that the school was occupied by Hamas operatives and that those Hamas operatives had committed a war crime
by using the premises for the purpose of launching mortars. See http://www.youtube.com/watch?gl=GB&hl=en-
GB&v=9wv0giW1elo&feature=PlayList&p=9277810AA376DF8D&playnext=1&index=5.
In another interview he indicated the Israeli armed forces’ patrol returned fire having received mortar fire, that he
assumed the school had been taken by force by Hamas “with guns” and held the people in the school as “hostages”.
See https://www.csidonline.org/resources/news/9/462-strike-on-gaza-school-kills-
40?tmpl=component&print=1&page.
On the same day Major Avital Leibovich, spokeswoman of the Israeli armed forces, in an interview with Channel 4
news said that Hamas had fired from “the vicinity of the school” but later asserted that the two Hamas militants were
inside the school firing at the Israeli armed forces. See
http://link.brightcove.com/services/player/bcpid1184614595?bctid=6539745001
On the same day Israeli armed forces’ spokesman Captain Benjamin Rutland made a presentation posted on
YouTube. He indicated that it had transpired later that the mortar fire had come from within a United Nations
school, that this was a crime on the part of Hamas and that civilians had been killed. He noted, however, that Hamas
terror operatives had been killed including the well-known Abu Askar brothers. Another Israeli armed forces
spokesperson confirmed on 12 January that it was adhering to the same positions as had been expressed on 6 and 7
January. See http://dover.idf.il/IDF/English/News/today/09/4/2201.htm
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two interviews the Prime Minister’s spokesman, Mr. Regev, emphasized that he considered
Hamas were mounting a cover-up in relation to the fact the senior operatives had been killed by
the Israeli armed forces in its strike and in particular that two persons, Imad and Hassan Abu
Askar, were “well-known members of the Hamas military machine – part of the rocket
network”.387
668. The position set out on 6 January was repeated again in comments to the press on 12
January by an Israeli armed forces’ spokesman.388
669. On 15 and 19 February 2009 The Jerusalem Post published reports quoting Colonel
Moshe Levi of CLA. He indicated that the stories of 40 or more dying as a result of the attack
were the result of distortions and that in fact the Israeli armed forces had killed 12 people,
including nine Hamas operatives and three non-combatants. The report of 19 February lists 7 of
the 12 he said were killed. He also pointed out that the Israeli surveillance footage showed only a
“few stretchers were brought in to evacuate people”.
670. On 22 April 2009 the Israeli armed forces published the results of their preliminary
investigations, stating a completely different position from that previously expressed:
Regarding the UNRWA school in Jabaliya, the Fahoura school, the
investigation concluded that the IDF used minimal and proportionate retaliatory
fire, using the most precise weapons available to them. Hamas made this
necessary, as it fired mortar shells at Israeli forces 80 metres from the school.
Additionally, it was concluded that all of the shells fired by IDF forces landed
outside of the school grounds.389
671. In July 2009 the Israeli Government stated:
Soon after the source of fire was detected, a scouting unit was dispatched
to confirm the location. Approximately 50 minutes after the mortar attack had
begun, two independent sources cross-verified the location of the mortars. Only
387 See https://www.csidonline.org/resources/news/9/462-strike-on-gaza-school-kills-
40?tmpl=component&print=1&page
388 The statement of Captain Ishai David in The Jerusalem Post on 12 January 2009.
389 http://dover.idf.il/IDF/English/News/today/09/4/2201.htm
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subsequent to this, and after verification of a safety margin of at least 50 metres
between the target (i.e. the identified source of the mortar fire) and the UNRWA
school, did the force respond to the ongoing barrage, by using the most accurate
weapon available to it – 120-mm mortars.390
D.
Other reports
672. The Mission carried out nine interviews with people who were present in al-Fakhura
Street, in the al-Deeb yard or in the UNRWA school. No witness stated that he had heard any
firing prior to the Israeli armed forces’ mortars landing. On the other hand, the Mission is aware
of at least two reports that indicate local residents had heard such fire in the area.391
673. The Mission notes that the statement of the Israeli armed forces on 22 April did not
indicate where the Hamas fire came from, only stating it was 80 metres away. The Mission finds
it difficult to understand how the Israeli armed forces could have come to this view without
having the information at the same time that Hamas operatives had been firing mortars for
almost one hour. It regards these new allegations as lacking credibility. However, the Mission
accepts, for the purposes of this report, that some firing may have occurred that gave rise to the
Israeli armed forces’ response.
674. It seems clear to the Mission that Israel’s Government developed a position justifying the
striking of an UNRWA school as a result of the immediate outcry generated by initial erroneous
reports that the school had been hit. That effort included a number of statements, in particular
those by Mr. Regev and Major Leibovich, 
