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UNITED 
NATIONS 



fumB^j General Assembly Distr 

W$^m0M GENERAL 

A/HRC/12/48 

25 September 2009 

Original: ENGLISH 



HUMAN RIGHTS COUNCIL 

Twelfth session 
Agenda item 7 



A 



HUMAN RIGHTS IN PALESTINE AND OTHER 
OCCUPIED ARAB TERRITORIES 

Report of the United Nations Fact-Finding Mission on the Gaza Conflict* 



*Late submission. 
GE.09-15866 



A/HRC/12/48 
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CONTENTS 

Paragraphs Page 

Acronyms and abbreviations 11 

Executive summary 1-130 13 

PART ONE: METHODOLOGY, CONTEXT AND APPLICABLE LAW 

INTRODUCTION 131-150 37 

I. METHODOLOGY 151-175 41 

A. Mandate and terms of reference 151-155 41 

B. Methods of work 156-167 42 

C. Assessment of information 168-172 44 

D. Consultation with the parties 173-175 45 

II. CONTEXT 176-222 46 

A. Historical context 177-197 46 

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 198-209 52 

C. Relevant political and administrative 

structures in the Gaza Strip and the West Bank 210-215 59 

D. Relevant political and administrative structures 

inlsrael 216-222 61 

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 223-267 62 

IV. APPLICABLE LAW 268-310 71 

A. Self-determination 269 71 

B. International humanitarian law 270-285 72 

C. International criminal law 286-293 76 

D. International human rights law 294-310 77 



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CONTENTS (cont'd) 

Paragraphs Page 
PART TWO: OCCUPIED PALESTINIAN TERRITORY 

THE GAZA STRIP 311-1372 82 

Section A: Military operations 311-1344 82 

V. THE BLOCKADE: INTRODUCTION AND 

OVERVIEW 311-326 82 

VI. OVERVIEW OF MILITARY OPERATIONS 
CONDUCTED BY ISRAEL IN GAZA BETWEEN 
27 DECEMBER 2008 AND 18 JANUARY 2009 AND 

DATA ON CASUALTIES 327-364 85 

A. The parties relevant to the conduct of military 
activities in Gaza between 27 December 2008 

and 28 January 2009 328-332 86 

B. The phases of the hostilities 333-351 87 

C. Data on casualties during the Israeli military 
operations in Gaza from 28 December 2008 to 

17 January 2009 352-364 90 

VII. ATTACKS ON GOVERNMENT BUILDINGS 

AND POLICE 365-438 93 

A. Deliberate attacks on Gaza government 

infrastructure 365-392 93 

B. Deliberate attacks on the Gaza police 393-438 99 

VIII. OBLIGATION ON PALESTINIAN ARMED GROUPS 
IN GAZA TO TAKE FEASIBLE PRECAUTIONS TO 

PROTECT THE CIVILIAN POPULATION 439-498 111 

A. Launching attacks from within civilian areas and 
from within or in the immediate vicinity of 

protected sites 446-460 113 

B. Booby-trapping of civilian houses 461-463 116 

C. Use of mosques to launch attacks against the Israeli 

armed forces or to store weapons 464-465 117 

D. Misuse of medical facilities and ambulances 466-474 117 

E. Forcing civilians to remain in an area for the 
specific purpose of sheltering that area or forces 

in that area from attack 475-478 119 



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CONTENTS (cont'd) 

Paragraphs Page 

F. Mingling with the civilian population to shield 

combatants against attack 479-481 120 

G. Factual findings 482-488 121 

H. Legal findings 489-498 122 

IX. OBLIGATION ON ISRAEL TO TAKE FEASIBLE 
PRECAUTIONS TO PROTECT CIVILIAN 

POPULATION AND CIVILIAN OBJECTS IN GAZA 499-652 124 

A. Warnings 500-542 124 

B. UNRWA compound, Gaza City 543-595 133 

C. Al-Quds hospital, Tal el-Hawa, Gaza City 596-629 141 

D. Attacks on al-Wafa hospital, 5 and 

16 January 2009 630-652 146 

X. INDISCRIMINATE ATTACKS BY ISRAELI ARMED 
FORCES RESULTING IN THE LOSS OF LIFE AND 

INJURY TO CIVILIANS 653-703 149 

A. The shelling in al-Fakhura Street by Israeli armed 

forces 653-654 149 

B. The facts surrounding the Israeli armed forces' 

mortar shelling 655-666 149 

C. The Israeli position 667-673 151 

D. Otherreports 674-686 153 

E. Factual findings 687-690 155 

F. Legal findings 691-703 156 

XI. DELIBERATE ATTACKS AGAINST THE CIVILIAN 

POPULATION 704-885 158 

A. Attacks on the houses of Ateya al-Samouni and 
Wa'ed al-Samouni in Zeytoun, resulting in the 

death of 23 members of the al-Samouni family 706-735 159 

B. Killing of civilians attempting to leave their homes 

to walk to safer areas 736-801 166 

C. Information concerning the instructions given 
to the Israeli armed forces with regard to the 

opening of fire against civilians 802-808 180 



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CONTENTS (cont'd) 

Paragraphs Page 

D. Legal findings with regard to the cases 

investigated by the Mission 809-821 182 

E. The attack on the al-Maqadmah mosque, 

3 January 2009 822-843 184 

F. The attack on the al-Daya family house, 

6 January 2009 844-866 187 

G. Attack on the Abd al-Dayem condolence tents 867-885 191 

XII. THE USE OF CERTAIN WEAPONS 886-912 194 

A. White phosphorous 887-901 194 

B. Flechettes 902-905 196 

C. Alleged use of munitions causing a specific type 

ofinjury 906-908 197 

D. Factual findings on the use of munitions causing a 

specific type of injury 909-910 198 

E. Allegations regarding the use of depleted and 
non-depleted uranium munitions by the Israeli 

armedforces 911-912 198 

XIII. ATTACKS ON THE FOUNDATIONS OF CIVILIAN 
LIFE IN GAZA: DESTRUCTION OF INDUSTRIAL 
INFRASTRUCTURE, FOOD PRODUCTION, WATER 
INSTALLATIONS, SEWAGE TREATMENT 

PLANTS AND HOUSING 913-1031 199 

A. The destruction of el-Bader flour mill 913-941 199 

B. The destruction of the Sawafeary chicken farms 942-961 204 

C. The destruction of water and sewage installations 962-989 206 

D. The destruction of housing 990-1007 210 

E. Analysis of the pattern of widespread 

destruction of economic and infrastructural targets ... 1008-1031 214 

XIV. THE USE OF PALESTINIAN CIVILIANS AS HUMAN 

SHIELDS 1032-1106 218 

A. ThecaseofMajdiAbdRabbo 1033-1063 219 

B. The case of Abbas Ahmad Ibrahim Halawa 1064-1075 223 

C. The case of Mahmoud Abd Rabbo al-Aj rami 1076-1085 225 

D. The case of AD/03 1086-1088 227 



A/HRC/12/48 
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CONTENTS (cont'd) 

Paragraphs Page 

E. Denial of the allegations by the Israeli armed 

forces 1089 227 

F. Factual findings 1090-1095 228 

G. Legal findings 1096-1106 229 

XV. DEPRIVATION OF LIBERTY: GAZANS DETAINED 
DURING THE ISRAELI MILITARY OPERATIONS OF 

27 DECEMBER 2008 TO 18 JANUARY 2009 1107-1176 232 

A. Al-Atatra sandpits 1112-1126 234 

B. Detention and abuse of AD/02 1127-1142 236 

C. AD/03 1143-1163 239 

D. Factual findings 1164 243 

E. Legal findings 1165-1176 244 

XVI. OBJECTIVES AND STRATEGY OF ISRAEL' S 

MILITARY OPERATIONS IN GAZA 1177-1216 250 

A. Planning 1178-1191 250 

B. The development of strategic objectives in Israeli 

military thinking 1192-1199 253 

C. Official Israeli statements on the objectives of the 

military operations in Gaza 1200-1202 255 

D. The strategy to achieve the objectives 1203-1212 255 

E. Conclusions 1213-1216 257 

XVII. THE IMPACT OF THE BLOCKADE AND OF THE 
MILITARY OPERATIONS ON THE PEOPLE OF 

GAZA AND THEIR HUMAN RIGHTS 1217-1335 258 

A. The economy, livelihoods and employment 1220-1233 259 

B. Food and nutrition 1234-1241 262 

C. Housing 1242-1245 264 

D. Water and sanitation 1246-1249 265 

E. Environment 1250-1251 266 

F. Physical and mental health 1252-1267 267 

G. Education 1268-1274 270 

H. Impact on women and children 1275-1282 271 



A/HRC/12/48 
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CONTENTS (cont'd) 

Paragraphs Page 

I. Persons with disabilities 1283-1291 274 

J. Impact on humanitarian assistance provided 

by the United Nations 1292-1299 275 

K. Legal analysis 1300-1335 276 

XVIII. THE CONTINUING DETENTION OF ISRAELI 

SOLDIER GILAD SHALIT 1336-1344 284 

Section B: Internal violence 1345-1372 286 

XIX. INTERNAL VIOLENCE AND TARGETING OF FATAH 
AFFILIATES BY SECURITY SERVICES UNDER THE 

CONTROL OF THE GAZA AUTHORITIES 1345-1372 286 

A. Factual findings 1366-1368 290 

B. Legal findings 1369-1372 291 

THE WEST BANK, INCLUDING EAST JERUSALEM 1373-1589 292 

XX. TREATMENT OF PALESTINIANS IN THE 
WEST BANK BY ISRAELI SECURITY FORCES, 
INCLUDING USE OF EXCESSIVE OR LETHAL 

FORCE DURING DEMONSTRATIONS 1381-1440 293 

A. Settler violence in the West Bank in the period 

preceding the Israeli military operations in Gaza 1384-1393 294 

B. The increased level of force since the end of the 

operations inGaza 1394-1404 297 

C. The role of impunity 1405-1409 300 

D. Legal analysis and conclusions 1410-1440 302 

XXI. DETENTION OF PALESTINIANS TN ISRAELI 

PRISONS 1441-1507 308 

A. Issues linked to Israel' s December- January 

military operations in Gaza 1449-1487 309 

B. Legal analysis and conclusions 1488-1507 321 



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CONTENTS (cont'd) 



Paragraphs Page 



XXII. ISRAELI VIOLATIONS OF THE RIGHT TO FREE 

MOVEMENT AND ACCESS 1508-1549 325 

A. Movement restrictions affecting the Mission's work.. 1515-1516 327 

B. Movement and access and the Israeli military 

operations in Gaza 1517-1519 327 

C. West Bank closures during the Israleli operations 

in Gaza 1520-1523 328 

D. New measures to formalize the separation of Gaza 

and the West Bank 1524-1527 329 

E. Movement and access, current situation 1528-1534 330 

F. Jerusalem: accelerating the "silent transfer" 1535-1537 332 

G. New settlements, land expropriation and the 

demolition of villages in Area C 1538-1539 332 

H. Connecting the dots 1540-1541 333 

I. Legal analysis and conclusions 1542-1549 334 

XXIII. INTERNAL VIOLENCE, TARGETING OF HAMAS 
SUPPORTERS AND RESTRICTIONS ON FREEDOM 
OF ASSEMBLY AND EXPRESSION BY THE 

PALESTINIAN AUTHORITY 1550-1589 335 

A. Crackdown by the Palestinian Authority on Hamas 

and other Islamic parties 1555-1563 337 

B. Freedom of the press, freedom of expression 

andopinion 1564-1570 340 

C. Freedom of assembly: repression of demonstrations 
during the Israeli military operations in Gaza of 

27 December 2008 - 18 January 2009 1571-1575 342 

D. Legal analysis 1576-1583 343 

E. Conclusions 1584-1589 344 

PART THREE: ISRAEL 

XXIV. THE IMPACT ON CIVILIANS OF ROCKET AND 
MORTAR ATTACKS BY PALESTINIAN ARMED 

GROUPS ON SOUTHERN ISRAEL 1594-1691 346 

A. Summary of rocket and mortar fire from 

18 June 2008 to 31 July 2009 1600-1609 347 



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CONTENTS (cont'd) 



Paragraphs Page 

B. Relevant Palestinian armed groups 1610-1615 349 

C. Type of rockets and mortars held by 

the Palestinian armed groups 1616-1623 350 

D. Rocket and mortar attacks by the Palestinian 

armed groups on Israel 1624-1628 352 

E. Statements by Palestinian armed groups 

concerning their launching of rockets into Israel 1629-1633 353 

F. Statements by the Gaza authorities to the Mission 1634-1636 354 

G. Precautionary measures in effect in 

southern Israel 1637-1646 354 

H. Impact of rocket and mortar fire on communities 

in southern Israel 1647-1681 356 

I. Legal analysis and conclusions 1682-1686 364 

J. Findings 1687-1691 365 

XXV. REPRES SION OF DIS SENT IN ISRAEL, RIGHT TO 
ACCESS TO INFORMATION AND TREATMENT OF 

HUMAN RIGHTS DEFENDERS 1692-1772 366 

A. Protests inside Israel 1697-1711 367 

B. Judicial responses following the arrests of 

protesters 1712-1718 371 

C. The interrogation of political activists by the 

General Security Services 1719-1723 372 

D. Freedom of association and treatment of human 

rights organizations inside Israel 1724-1732 373 

E. The access of the media and human rights 
monitors to Gaza prior to, during and after the 

military operations 1733-1751 375 

F. Legal analysis and conclusions 1752-1772 379 

PART FOUR: ACCOUNTABILITY AND JUDICIAL REMEDIES 

XXVI. PROCEEDINGS AND RESPONSES BY ISRAEL 
TO ALLEGATIONS OF VIOLATIONS BY ITS 

ARMED FORCES AGAINST PALESTINIANS 1773-1835 383 

A. Israel's system of investigation and prosecution 1789-1803 385 

B. Legal assessment 1804-1835 388 



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CONTENTS (cont'd) 

Paragraphs Page 

XXVII. PROCEEDINGS BY PALESTINIAN AUTHORITIES 1836-1848 394 

A. Proceedings related to actions in the Gaza Strip 1836-1842 394 

B. Proceedings related to actions in the West Bank 1843-1848 396 

XXVIII. UNIVERSAL JURISDICTION 1849-1857 397 

XXIX. REPARATION 1858-1873 399 

A. The right to a remedy and reparation under 

international law 1861-1866 400 

B. Compensation and reparations to the Palestinian 

people in the Gaza Strip 1867-1873 401 

PART FIVE: CONCLUSIONS AND RECOMMENDATIONS 

XXX. CONCLUSIONS 1874-1966 404 

A. Concluding observations 1874-1876 404 

B. The Israeli military operations in Gaza: relevance 
to and links with Israel's policies vis-a-vis the 

Occupied Palestinian Territory 1877-1879 404 

C. Nature, objectives and targets of the Israeli 

military operations in Gaza 1880-1895 405 

D. Occupation, resilience and civil society 1896-1899 408 

E. Rocket and mortar attacks in Israel 1900-1902 409 

F. Dissenting voices in Israel 1903-1904 409 

G. The impact of dehumanization 1905-1910 410 

H. The intra-Palestinian situation 1911 411 

I. The need for protection and the role of the 

international community 1912-1917 412 

J. Summary of legal findings 1918-1956 413 

K. The need for accountability 1957-1966 420 

XXXI. RECOMMENDATIONS 1967-1979 422 

Annexes 430 



ACRONYMS AND ABBREVIATIONS 



A/HRC/12/48 
page 1 1 



ACRI 

BMC 

CLA 

CMWU 

COGAT 

DFLP 

DIME 

DSS 

FAO 

GIS 

HaMoked 

HCC 

IAF 

ICCPR 

ICESCR 

ICHR 

ICRC 

IDF 

IED 

IHL 

IHRL 

ILO 

IOF 

MADA 

NATO 

NGO 

OCHA 

OHCHR 

PALTRADE 

PCATI 

PCHR 

PFLP 

PHR-Israel 

PLO 

PRC 

PRCS 

TAWTHEQ 

UAV 

UNCTAD 

UNDP 

UNFPA 

UNHCR 

UNICEF 

UNITAR 



Association for Civil Rights in Israel 

businessman card 

Coordination and Liaison Administration 

Coastal Municipalities Water Utility 

Coordinator of Government Activities in the Territories 

Democratic Front for the Liberation of Palestine 

dense inert metal explosive 

United Nations Department of Safety and Security 

Food and Agriculture Organization of the United Nations 

General Intelligence Service 

Center for the Defense of the Individual 

Humanitarian Coordination Centre 

Israeli air force 

International Covenant on Civil and Political Rights 

International Covenant on Economic, Social and Cultural Rights 

Independent Commission for Human Rights 

International Committee of the Red Cross 

Israeli Defense Forces 

improvised explosive device 

international humanitarian law 

international human rights law 

International Labour Organization 

Israeli occupation forces 

Palestinian Center for Development and Media Freedoms 

North Atlantic Treaty Organization 

non-governmental organization 

Office for the Coordination of Humanitarian Affairs 

Office of the United Nations High Commissioner for Human Rights 

Palestine Trade Center 

Public Committee against Torture in Israel 

Palestinian Centre for Human Rights 

Popular Front for the Liberation of Palestine 

Physicians for Human Rights - Israel 

Palestine Liberation Organization 

Popular Resistance Committee 

Palestinian Red Crescent Society 

Central Commission for Documentation and Pursuit of Israeli War 

Criminals 

unmanned aviation vehicle 

United Nations Conference on Trade and Development 

United Nations Development Programme 

United Nations Population Fund 

Office of the United Nations High Commissioner for Refugees 

United Nations Children's Fund 

United Nations Institute for Training and Research 



A/HRC/12/48 
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UNOSAT 
UNRWA 

WFP 
WHO 



Operational Satellite Applications Programme 

United Nations Relief and Works Agency for Palestine Refugees in the 

Near East 

World Food Programme 

World Health Organization 



A/HRC/12/48 
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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 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 



A/HRC/12/48 
page 14 

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. 

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 27 December 2008 and 18 January 2009 and the links between these 
operations and overarching Israeli policies vis-a-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. 



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18. The Mission adopted an inclusive approach to 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 
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 Israeli victims 
and to the West Bank to meet 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. 

24. The Mission's final conclusions on the reliability of the information received were based 
on its own assessment of the credibility and reliability of the witnesses it met, verifying the 
sources and the methodology used in the reports and documents produced by others, cross- 
referencing the relevant material and information, and assessing whether, in all the 
circumstances, there was sufficient credible and reliable information 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 



A/HRC/12/48 
page 16 

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 focused (chap. V) on the process of economic and political isolation imposed 
by Israel on the Gaza Strip, generally referred to as a blockade. The blockade 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 in the 
provision of fuel and electricity. Gaza's economy is further severely affected by the reduction of 
the fishing zone open to Palestinian fishermen and the establishment of a buffer zone along the 
border between Gaza and Israel, which reduces the land available for agriculture and industry. In 
addition to creating an emergency situation, the blockade has significantly weakened the 
capacities of the population and of the health, water and other public sectors to respond 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 other goods 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 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. 



A/HRC/12/48 
page 17 

30. Statistics about Palestinians who lost their lives 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 fatalities. The Government of 
Israel provides a figure of 1,166. The data provided by non-governmental sources on the 
percentage of civilians among those killed are generally consistent and raise very serious 
concerns about the way Israel conducted the military operations in Gaza. 

3 1 . According to the Government of Israel, during the military operations there were four 
Israeli fatalities in southern Israel, of whom three were civilians and one a soldier. They were 
killed by rocket and mortar attacks by Palestinian armed groups. In addition, nine Israeli soldiers 
were killed during the fighting inside the Gaza strip, four 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. The 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 building and the Gaza main prison (chap. VII). 
Both buildings were destroyed and can no longer be used. 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. Overall, the approximately 240 policemen killed by Israeli 
forces constitute more than one sixth of the Palestinian casualties. The circumstances of the 
attacks seem to indicate, and the Government of Israel's July 2009 report on the military 
operations confirm, 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. 

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 basis. The Mission accepts that 
there may be individual members of the Gaza police that were at the same time members of 



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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 on Palestinian armed groups in Gaza to take feasible precautions to 
protect the civilian population and civilian objects 

35. The Mission examined whether and to what extent the Palestinian armed groups violated 
their obligation to exercise care and take all feasible precautions to protect the civilian 
population in Gaza from the inherent dangers of the military operations (chap. 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 incidents 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 
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 or that ambulances were used to transport combatants or for other military purposes. 
On the basis of its own investigations and the statements by United Nations officials, the Mission 
excludes that Palestinian armed groups engaged in combat activities from United Nations 
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 United 
Nations 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 on Israel to take feasible precautions to protect the civilian 
population and civilian objects in Gaza 

37. The Mission examined how the Israeli armed forces discharged their obligation to take all 
feasible precautions to protect the civilian population of Gaza, including particularly the 
obligation to give effective advance warning of attacks (chap. 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 harm's 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 safely was also diminished 
by the fact that the city centres themselves had been the subject of intense attacks during the air 



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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 commanders and 
their subordinates of taking all other feasible measures to distinguish between civilians and 
combatants. 

38. The Mission also examined the precautions taken by the Israeli armed forces in the context 
of three specific attacks they launched. On 15 January 2009, the field office compound of the 
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) 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 armed forces 
continued their attack over several hours despite having been fully alerted to the risks they 
created. The Mission concludes that the Israeli armed forces violated the requirement under 
customary international law 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 armed forces directly and 
intentionally attacked 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 the Israeli armed 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 both cases. 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 

4 1 . The Mission examined the mortar shelling of al-Fakhura junction in Jabaliyah next to a 
UNRWA school, which, at the time, was sheltering more than 1,300 people (chap. X). The 
Israeli armed forces launched at least four mortar shells. One landed in the courtyard of a family 
home, killing 1 1 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 examined in 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. 



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42. In drawing its legal conclusions on the attack on al-Fakhura junction, the Mission 
recognizes that, for all armies, decisions on proportionality, 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 thus considers 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 1 1 incidents in which the Israeli armed forces launched direct 
attacks against civilians with lethal outcome (chap. XI). The facts in all bar one of the attacks 
indicate no justifiable military objective. The first two are attacks on houses in the al-Samouni 
neighbourhood south of Gaza City, including the shelling of a house in which Palestinian 
civilians had been forced to assemble by the Israeli armed 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 armed forces were in control of the area and had 
previously entered into contact with or had 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 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 armed 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 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 early evening prayers, resulting in the death of 1 5 people, 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 constitutes 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 bombing of 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 



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Mission concludes that, if a mistake was indeed made, there could not be said to be a case of 
wilful killing. State responsibility of Israel for an internationally wrongful act would, however, 
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 
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 had 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 the Israeli armed 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 plants and housing 

50. The Mission investigated several incidents involving the destruction of industrial 
infrastructure, food production, water installations, sewage treatment plants and housing (chap. 
XIII). Already at the beginning of the military operations, el-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's 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 to deny sustenance to the civilian population, which is 
a violation of customary international law and may constitute a war crime. The strike on the flour 
mill furthermore constitutes a violation of the right to adequate food and means of subsistence. 

5 1 . The chicken farms of Mr. Sam eh Sawafeary in the Zeytoun neighbourhood south of Gaza 
City reportedly supplied over 10 per cent of the Gaza egg market. Armoured bulldozers of the 
Israeli armed 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 



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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. The Israeli armed forces also carried out a strike against a wall of one of the raw sewage 
lagoons of the Gaza wastewater treatment plant, which caused the outflow of more than 200,000 
cubic metres of raw sewage onto neighbouring farmland. The circumstances of the strike suggest 
that it was deliberate and premeditated. The Namar wells complex in Jabaliyah 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 el-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 others, 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 satellite 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 armed 
forces engaged in another wave of systematic destruction of civilian buildings during the last 
three days of their presence in Gaza, aware of their imminent withdrawal. The conduct of the 
Israeli armed 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". The Israeli armed 
forces furthermore 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-Wadiyah Group's food 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 the Israeli armed forces coerced 
Palestinian civilian men at gunpoint to take part in house searches during the military operations 
(chap. XIV). The men were blindfolded and handcuffed as they were forced to enter houses 
ahead of the Israeli soldiers. In one of the incidents, Israeli soldiers 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 continuation of this practice, despite 



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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 military 
operations of 27 December 2008 to 18 January 2009 

56. During the military operations, the 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 was 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 its review of other relevant material, including 
interviews with relatives and statements from other victims submitted to it. 

57. From the facts gathered, the Mission finds that numerous violations of international 
humanitarian law and human rights law were 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 sandpits in which 
Palestinian men, women and children were detained. Israeli tanks and artillery positions were 
located inside the sandpits 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 also emerged clearly in many cases discussed elsewhere 
in 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 this treatment constitutes the infliction of a 
collective penalty on these civilians and amounts to measures of intimidation and terror. Such 
acts are grave breaches of the Geneva Conventions and constitute a war crime. 



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12. Objectives and strategy of Israel's military operations in Gaza 

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 armed forces and 
on their training in international humanitarian law (chap. 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 unmanned aviation vehicles (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 the Israeli 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 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 
possibility of resorting 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 people of Gaza 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 or deep poverty were rising. 



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66. In this precarious situation, the military operations destroyed a substantial part of the 
economic infrastructure. As many factories were targeted and destroyed or damaged, poverty, 
unemployment and food insecurity further increased dramatically. The agricultural sector 
similarly suffered from the destruction of farmland, water wells and fishing boats during the 
military operations. The continuation of the blockade impedes the reconstruction of the 
economic infrastructure that was destroyed. 

67. The razing of farmland and the destruction of greenhouses are expected to further worsen 
food insecurity despite 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 even before the military operations. The hardship caused by the extensive 
destruction of shelter (the United Nations Development Programme reported 3,354 houses 
completely destroyed and 1 1,1 12 partially damaged) and the resulting displacement particularly 
affects children and women. The destruction of water and sanitation 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. Even before the military operations, 80 per 
cent of the water supplied in Gaza did not meet the World Health Organization's standards for 
drinking water. The discharge of untreated or partially treated wastewater 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 an influx of 
patients with life-threatening injuries. Patients injured during the hostilities were often 
discharged quickly 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 owing 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 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 in turn likely to increase the readiness to embrace violence and extremism. They 
also told the Mission that 20 per cent of children in the Gaza Strip suffer from post-traumatic 
stress disorders. 

70. Children's psychological learning difficulties are compounded by the impact of the 
blockade and the military operations on the education infrastructure. Some 280 schools and 
kindergartens were destroyed in a situation in which restrictions on the importation of 
construction materials meant that many school buildings were already in serious need of repair. 

7 1 . 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 



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dramatically illustrate the suffering caused by 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 the sole breadwinners increased, but their employment opportunities 
remain significantly inferior to men's. The military operations and increased poverty add to the 
potential for conflicts in the family and between widows 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 was, however, insufficient to meet the 
needs of the population even before hostilities started, and has again decreased since 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 which it has as the occupying Power and which are 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 the Israeli armed forces of private 
residential houses, water wells, water tanks, agricultural land and greenhouses there was a 
specific purpose of denying 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 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 armed 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 
to courts of law and effective remedies could amount to persecution, a crime against humanity. 
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 



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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 International Committee of the Red Cross (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 Fatah 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 the 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 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 the 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. 



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The Occupied Palestinian Territory: the West Bank, including East Jerusalem 

8 1 . 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 its 
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 representatives of human rights organizations, members of the 
Palestinian legislature and community leaders. It heard experts, witnesses and victims at the 
public hearings, interviewed affected individuals and witnesses, and reviewed video and 
photographic material. 

1. Treatment of Palestinians in the West Bank by Israeli security forces, 
including use of excessive or lethal force during demonstrations 

83 . Various witnesses and experts informed the Mission of a sharp rise in the use of force by 
the Israeli security forces against Palestinians in the West Bank from the beginning of the Israeli 
operations in Gaza (chap. XX). A number of protestors were killed by Israeli forces during 
Palestinian demonstrations, including in support of the Gaza population under attack, and scores 
were injured. The level of violence used in the West Bank during the time of the operation in 
Gaza was sustained also after 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 and those where Israelis are present. This raises serious concern with 
regard to discriminatory policies vis-a-vis Palestinians. Eyewitnesses also reported to the 
Mission on 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 the Israeli authorities to investigate, prosecute and punish 
violence against Palestinians, including killings, by settlers and members of the security forces, 
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. 

2. 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 
1 June 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 



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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 focused 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 
was higher than in the same period in 2008. Many children were reportedly arrested on the street 
and/or during demonstrations in the West Bank. The number 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-a-vis the Palestinians since 2005 has been the 
arrest of Hamas affiliates. A few months before the elections for the Palestinian Legislative 
Council in 2005, Israel arrested numerous persons who had been involved in municipal or 
Legislative Council elections. Following the capture by Palestinian armed groups of Israeli 
soldier Gilad Shalit in June 2006, the Israeli armed forces arrested some 65 members of the 
Legislative Council, 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 military operations in Gaza. The detention of members of the Legislative Council has 
meant that it has been unable to function and exercise its legislative and oversight function over 
the Palestinian executive. 

9 1 . 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 
protections to which children are entitled. The Mission also finds that the detention of members 
of the Legislative Council may amount to collective punishment contrary to international 
humanitarian law. 

3. Restrictions on freedom of movement in the West Bank 

92. In the West Bank, Israel has long imposed a system of restrictions on movement. 
Movement is restricted by a combination of physical obstacles, such as roadblocks, checkpoints 
and the Wall, and 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 



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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 the 
Mission owing to this travel ban. 

93. The Mission has received reports that, during the Israeli offensive in Gaza, restrictions on 
movement in the West Bank were tightened. Israel imposed a "closure" on the West Bank for 
several days. In addition, there were more 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 tightened its hold on the West Bank 
by increasing expropriations, house demolitions and demolition orders, granting more permits 
for homes built in settlements and intensifying the 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. 

95. Israel's Ministry of Housing and Planning is planning a further 73,000 settlement homes 
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 double. 

96. The Mission believes that the restrictions on movement and access to which Palestinians 
in the West Bank are subject, in general, and the tighter restrictions during and, to some extent, 
after the military operations in Gaza, in particular, are disproportionate to any military objective 
served . In addition, the Mission is concerned about the steps taken recently to formalize the 
separation between Gaza and the West Bank, and as such between two parts of the Occupied 
Palestinian Territory. 

4. 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 deaths in detention to 
which it is suspected that torture and other ill-treatment may have contributed or which they 
may have caused. Complaints of such practices have not been investigated. 

98. Allegations were also received about the use of excessive force and the 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. 



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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 
Palestinian Authority executive. The executive has passed decrees and regulations to enable it to 
continue its day-to-day operations. 

100. Other allegations include the arbitrary closure of charities and associations affiliated with 
Hamas and other Islamic groups or the revocation and non-renewal of their licences, 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 excludes 
Hamas supporters or affiliates from public sector employment. 

102. The Mission is of the view that the reported measures are inconsistent with the Palestinian 
Authority's obligations deriving from the Universal Declaration of Human Rights and the 
Palestinian Basic Law. 

Israel 

1. 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 (chap. XXIV). While communities such as Sderot and Nir Am kibbutz 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. Between 18 June 2008 and 18 January 2009, rockets fired by Palestinian armed groups in 
Gaza have killed three civilians inside Israel and two 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 whom were injured during the 
time of the Israeli military operations in Gaza. 

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 per cent of adults and 72-94 per cent of children in Sderot suffered from post- 
traumatic stress disorder. During the military operations in Gaza 1596 people were reportedly 
treated for stress-related injuries while afterwards over 500 people were treated. 

106. Rockets 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 
affected 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 but also the 



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diminished ability to learn that is witnessed in individuals experiencing symptoms of 
psychological trauma. 

107. The rocket and mortar fire has also had an adverse impact on the economic and social life 
of the affected communities. For communities such as Ashdod, Yavne, Beersheba, which 
experienced rocket strikes for the first time during the Israeli military operations in Gaza, there 
was a brief interruption to their economic and cultural activities brought about by the temporary 
displacement of some residents. For towns closer to the Gaza border, which have been under 
rocket and mortar fire since 2001, the recent escalation has added to the exodus of residents. 

108. The Mission has determined that the rockets and, to a lesser extent, the mortars fired by 
the Palestinian armed groups are incapable of being directed towards specific military objectives 
and have been 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 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 the rocket and mortar attacks is to spread terror among the Israeli civilian 
population, a violation of international law. 

109. Noting that some of the Palestinian armed groups, among them Hamas, have publicly 
expressed their intention to target civilians in reprisal for the civilian fatalities 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 US$ 460 million between 2005 and 201 1 - 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 for the Palestinian Israeli communities living in 
unrecognized and in some of the recognized villages that are within the range of rocket and 
mortars being fired by Palestinian armed groups in Gaza. 

2. 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. In Israel and in occupied East Jerusalem 715 



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people were arrested during the protests. There appear to have been no arrests of counter- 
protesters and 34 per cent 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 
discrimination, including freedom of expression and the right to peaceful assembly, as 
guaranteed to them by the International Covenant on Civil and Political Rights. 

1 12. The Mission notes with concern the reported instances of physical violence committed by 
members of the police against protesters, including the beating of protesters and other 
inappropriate conduct such as subjecting Palestinian citizens of Israel who were arrested to racial 
abuse and making sexual comments about female members of their families. Article 10 of the 
Covenant requires that those deprived of their liberty be treated with humanity and respect for 
the inherent dignity of the human person. 

113. Of the protesters brought before the Israeli courts, the Palestinian Israelis were 
disproportionately held in detention pending trial. The element of discrimination and differential 
treatment between Palestinian and Jewish citizens of Israel by the judicial authorities, as 
indicated in the reports received, is a substantial cause for concern. 

1 14. 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 (also known as Shin 
Bet), without there being any legal obligation on them 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 its publication of testimonies of Israeli soldiers concerning the conduct of 
the Israeli armed 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 so-called United Nations 
Declaration on Human Rights Defenders guarantees the right "to solicit, receive and utilize 
resources for the express purpose of promoting and protecting human rights and fundamental 
freedoms through peaceful means". If motivated by reaction to the organization's exercise of its 
freedom of 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. Furthermore, access was denied to human rights organizations and the ban 
continues for some international and Israeli organizations. The Mission can find no justification 
for this. The presence of journalists and international human rights monitors aids the 
investigation and wide public reporting of the conduct of the parties to the conflict, and can 
inhibit misconduct. The Mission observes that Israel, in its actions against political activists, 
non-governmental organizations and the media, has attempted to reduce public scrutiny of both 
its conduct 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. 



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D. Accountability 



1. Proceedings and responses by Israel to allegations of violations 
by its armed forces against Palestinians 

117. Investigations and, if appropriate, prosecutions of those suspected of serious violations are 
necessary 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 

(chap. XXVI). 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 
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 lies 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 
recognized principles of impartiality and promptness in investigations. The fact that proper 
criminal investigations can start only after the "operational debriefing" is over is a major flaw in 
the Israeli system of investigation. 



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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. 

2. Proceedings by Palestinian authorities 

(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 up by the Gaza 
authorities. The Mission is concerned with the consistent disregard for 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 international humanitarian law in the conduct of 
armed activities by militant groups in the Gaza Strip. 

124. Notwithstanding statements by the Gaza authorities and any action that they may have 
taken, 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, it appears that, with few 
exceptions, 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 meaningful for holding to account perpetrators of serious violations of 
international law and believes that the responsibility for protecting the rights of the people 
inherent in the authority assumed by the Palestinian Authority must be fulfilled with greater 
commitment 

3. Universal jurisdiction 

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 (chap. XXVIII). 

4. Reparations 

128. International law also establishes that, whenever a violation of an international obligation 
occurs, an obligation to provide reparation arises. It is the view of the Mission that the current 



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constitutional structure and legislation in Israel leaves very little room, if any, for Palestinians to 
seek compensation. The international community needs to provide for an additional or 
alternative mechanism of compensation for damage or loss incurred by Palestinian civilians 
during the military operations (chap. XXIX). 

E. Conclusions and recommendations 

129. The Mission draws general conclusions on its investigations in chapter XXX, which also 
includes a summary of its legal findings. 

130. The Mission then makes recommendations to a number of United Nations bodies, Israel, 
the responsible Palestinian authorities and the international community on: (a) 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 XXXI. 



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PART ONE: METHODODOGY, CONTEXT AND APPLICABLE LAW 

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 
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 1 1 -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 



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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). 

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). 



1 The term "Gaza authorities" is used to refer to the de facto Hamas-led authorities established in Gaza since 
June 2007. See chap. II for details. 

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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141 . Public hearings were held in Gaza on 28 and 29 June and in Geneva on 6 and 7 July 2009. 

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 media 3 . 

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.) 

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. 



3 The webpage of the Mission can be found at: http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/ 
9/F actFindingMission.htm . 



A/HRC/12/48 
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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. 

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 



A/HRC/12/48 
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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. 

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, 
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. 



A/HRC/12/48 
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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; 

(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; 



A/HRC/12/48 
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(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; 

(j) Public hearings in Gaza and in Geneva 4 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. 



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 . 



A/HRC/12/48 
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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 
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. 

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. 



A/HRC/12/48 
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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 
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 paper 5 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 



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 . 



A/HRC/12/48 
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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 

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 
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 
1993, when the leadership of the Palestine Liberation Organization (PLO) and the Government 



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). 



A/HRC/12/48 
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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 

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, 



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 



A/HRC/12/48 
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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 200 1. 5 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 
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 



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-%20Qbstacle%20to%20Peace/ 
Palestmian%20ten-or%20since%202000/Suicide%20and%20Otlier%20Bombmg%20Attacks%20m%20Israel%20Smce 

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 . terrori sm-inf o . org . il/mal am multimedi a/En gli sh/en g n/ 
pdf/ipc e007.pdf 

17 See B'Tselem statistics (Separation barrier statistics), available at: http://www.btselem.org/English/ 
Separation Barrier/Statistics. asp. 

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. 



A/HRC/12/48 
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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 
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 



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/roadmapl22002.pdf 

22 Available at: http://www.reliefweb.int/rw7rwb.nsf/AllDocsBvUNID/5a7229b652beb9c5cl256b8a0054b62e 

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 . 



A/HRC/12/48 
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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 
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 



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 

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 . 



A/HRC/12/48 
page 5 1 

Authority security installations and government buildings in the Gaza Strip. 28 The President of 
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 Mnqataa 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 
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 



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.vanitvfair.com/politics/features/2008/04/gaza200804 

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. 



A/HRC/12/48 
page 52 

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, more than 100 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. Since 1967, 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 - 
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 



33 A/HRC/9/26. 
34 A/HRC/8/17. 

35 A/63/519. 

36 Ibid. 



A/HRC/12/48 
page 53 

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 
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 



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 

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-ierusalem 



A/HRC/12/48 
page 54 



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 map 42 below). 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 
sides and 26,000 Palestinians in eight communities will be surrounded on four sides. 44 A number 
of surveys compiled by United Nations agencies 45 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 



42 OCHA, "West Bank barrier route projections", July 2008, available at: 
http://www.ochaopt.org/documents/BarrierRouteProiections July 2008.pdf 

43 A/63/519. 

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 Julv2007.pdf . 

46 A/63/5 19. 



A/HRC/12/48 
page 55 




ISRAEL 



' '-A J" 

~% .Jerusalemf ^L I 
f J *,V 



I- .la '..lie 

Adumim 

Settlement 

Bloc 




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 



47 . 



access to approximately 1,500 km of roads within the West Bank. Travel on these roads by 



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. 



A/HRC/12/48 
page 56 

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 
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 million 50 (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 
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 



48 A/63/519. 

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=3 1 174&Cr=gaza&Crl . 

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/bl200409edl5.html#isr2 . 



A/HRC/12/48 
page 57 

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 
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 



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. 4 1 8), 573 1 - 1 97 1 
(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). 

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 



A/HRC/12/48 
page 58 

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 
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 



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://elvonl .court. gov. il/heb/veadot/or/inside index.htm (in 
Hebrew). 

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/gaza090707aml- 
eng.rm?start=00:00:00&end=00:47:46 

64 A/63/5 18. 



A/HRC/12/48 
page 59 

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 
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 



65 The name of the list on which Hamas representatives ran for election. 

66 See chap. 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/MDE2 1 /020/2007/en/dom-MDE2 1 0202007en.html . 

69 Ibid. 



A/HRC/12/48 
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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, 
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 



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 chap. VII. 

73 Central Intelligence Agency, The World Fact Book 2009 (Gaza Strip), available at: https://www.cia. gov/library/ 
publications/fhe-world-factbook/geos/gz.html . 

74 "Occupied Palestinian Territories torn apart. . . ". 

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. 



A/HRC/12/48 
page 61 

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 
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 Strip sitting as the High Court of Justice. 80 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. 81 

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. 



77 "Occupied Palestinian Territories torn apart. . . ". 

78 Freedom House. Country report: Israel (2009), available at: 
http://www.freedomhouse.org/template.cfm?page=22&countrv=7630&year=2009 . 

79 The State of Israel - The Judicial Authority, at: http ://elvon 1 . court, gov. il/eng/home/index.html . 

80 "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 ://elyon 1 . court. gov. il/eng/rashut/maarechet. html . 

81 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.vesh- 
din.org/site/ima ges/B acky ardProceedingsEng. pdf . 



A/HRC/12/48 
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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 
(Amari). 

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. 82 

224. On 18 June 2008, the Gaza authorities and Israel announced a six-month ceasefire in an 
agreement brokered by Egypt. 83 The ceasefire came into effect on 19 June 2008 at 6 a.m. 84 

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 



82 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. 

83 The ceasefire was officially termed "a period of calm" (Tahdiyah in Arabic). It has also been referred to as 
"security calm" and "lull". 

84 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/spokecalml 80608. 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/l 8/1 .pdf ; 19 June 2009; 
Felesteen Newspaper, Gaza, Tahdiya starts today accompanied with international and popular welcoming, 
http://www.felesteen.ps/file/pdf/2008/06/l 9/1 .pdf . See chap. II. 



A/HRC/12/48 
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differed substantially. 85 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 
number of commodities. 86 According to Egyptian sources quoted by the International Crisis 
Group, 87 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. 88 

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. 89 

228. Between 18 and 24 June 2008, the Kami (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. 90 



85 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 war in gaza.pdf 

86 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. 

87 See "Ending the war. 

88 "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.ipost.com/servlet/Satellite?cid=1214132667653&pagename= 
JPost%2FJPArticle%2FShowFull . 

89 OCHA, Protection of Civilians Weekly Report (18-24 June 2008). 

90 Ibid. 



A/HRC/12/48 
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229. Shortly after midnight on 24 June 2008, a mortar fired from Gaza landed in the Negev 
near the Kami checkpoint, causing no injuries or damage. 91 No group claimed responsibility for 
the attack. 92 

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. 93 
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. 94 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". 95 In Israel, the Foreign Ministry spokesperson termed the 
rocket attacks "a grave violation of the ceasefire" 96 and said it would consider reimposing 

97 

economic sanctions. 

23 1 . 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. 98 The Gaza authorities accused Israel of violating the ceasefire, stating "if the 
crossings remain closed, the truce will collapse". 99 



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. 100 As reported by the 
Xinhua news agency, the armed group stated that "the truce must include the West Bank and all 



91 Rianovosti, "Mortar attack from Gaza hit Israel", 24 June 2008, available at: http://en.rian.ru/world/20080624/ 
111867958.html ; "End of truce?...". 

92 "Mortar attack...". 

93 "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 

94 "End of truce?...". 

95 Ibid. 

96 Ibid. 

97 BBC News, "Rockets 'violated Gaza ceasefire'", 24 June 2008, available at: http://news.bbc.co.Uk/2/hi/ 
middle east/7470530. stm 

98 Xinhua News, "Israeli FM calls for immediate military response to Qassam attacks", 26 June 2008. 

99 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 . go v . p s/en/ 
?page=633167343250594025&Nid=4702 ; see also "Israeli FM calls for immediate military response. . . ". 

100 OCHA, Protection of Civilians Weekly Report (25 June-1 July 2008), available at: 
http://www.ochaopt.org/documents/Weekly Briefing Notes 266.pdf . 



A/HRC/12/48 
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sorts of aggression must stop". 101 The Israeli Foreign Minister commented, "I do not care which 
organization fired the rocket, Israel must respond militarily and immediately." 102 

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. 103 

234. On 28 June 2008, mortar shells were reportedly fired at the Kami crossing but no group 
claimed responsibility. On 29 June 2008, the crossings into Gaza were closed, 104 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". 105 

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 



106 



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. 107 



101 Xinhua News, "Israeli FM calls for immediate military response . . . ". 

102 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/MF A/About+the+Ministry/MFA+Spokesman/2008/ 
Israel%20will%20not%20tolerate%20violations%20of%20the%20calm%2026-Jun-2008 . 

103 Ynet News, "Haniyeh: All Palestinian factions should honor truce", 27 June 2008; 
http://www.Ynetnews.eom/articles/Q ,7340,L-3561133,00.html . 

104 Intelligence and Terrorism Information Center at the Israel Intelligence Heritage & Commemoration Center, 
"The six months of the lull arrangement", December 2008. 

105 The Guardian, "Israel closes Gaza crossing after reported rocket attack", 1 July 2008, available at: 
http://www.guardian.co.uk/world/2008/iul/01/israelandthepalestinians.middleeast . 

106 OCHA, Protection of Civilians Weekly Report (18-24 June 2008) and Protection of Civilians Weekly Report (25 
June-1 July 2008). 

107 OCHA, The Humanitarian Monitor, No. 26 (June 2008), available at http://www.ochaopt.org/documents/ 
HM June 2008.pdf . 



A/HRC/12/48 
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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. 108 

239. On 2 July 2008, Israel reopened the Sufa and Kami crossings to allow passage of goods 
into Gaza, while 45 medical evacuations were allowed through the Erez crossing 



109 



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. 110 

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 



in 



242. On 7 July 2008, a mortar shell fired from Gaza landed near the Kami crossing, on the 
Gaza side. 112 On the same day, Israeli forces began raids on institutions in Nablus that it believed 
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. 113 

243. On 8 July 2008, two mortars were fired from Gaza, 114 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. 115 

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 



108 "Israel closes Gaza crossings after reported rocket. . . ". 

109 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 . 

110 OCHA, Protection of Civilians Weekly Report (2-8 July 2008), available at: http://www.ochaopt.org/documents/ 
Weekly Briefing Notes 267.pdf . 

111 "The six months. . . ". 

112 OCHA, Protection of Civilians Weekly Report (2-8 July 2008). 

113 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/lii/middle east/7500322. stm 

114 "The six months. . . ". 

115 "Gaza militants fire. . . ". 



A/HRC/12/48 
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firing the rockets and the al-Aqsa Martyrs' Brigades stated that its members had been "abducted" 
by Hamas 



116 



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. 117 

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 
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. 118 

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. 119 

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 1 1 August 
2008, 120 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. 121 

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. 122 

251. In September 2008, three mortars and one rocket were fired into Israel from the Gaza 
Strip, according to Israeli sources. 123 



116 Ibid.; Reuters, "Hamas arrests first rocket squads since truce", 10 July 2008, available at: 
http://www.reuters.com/article/latestCrisis/idUSL10355564 . 

117 "The six months...". 

118 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 . 

119 OCHA, The Humanitarian Monitor, No. 27 (July 2008), available at: http : //www. ochaopt . org/documents/ 
Humanitarian Monitor July 2008.pdf . 

120 '"T^g s j x mon ths. . . ". 

121 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,45a5 1 99f2,4874797e3b,48ae79b81 e,0.html . 

122 OCHA, The Humanitarian Monitor, No. 28 (August 2008), available at http ://www. ochaopt.org/ 
documents/ocha opt humanitarian monitor 08 2008 english.pdf 



A/HRC/12/48 
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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 
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. 124 

253. In October 2008, Israeli sources stated that only one rocket and one mortar were fired into 
Israel from the Gaza Strip. 125 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. 126 

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. 127 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. 128 



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. 129 The 
crossings into the Gaza Strip remained closed during this time. On 14 November 2008, Amnesty 



123 " jjjg s j x months " 

124 OCHA, The Humanitarian Monitor, No. 29 (September 2008), available at: http : //www. ochaopt. org/ 
documents/ocha opt humanitarian monitor 2008 10 1 english.pdf . 

125 Intelligence and Terrorism Information Center at the Israel Intelligence Heritage & Commemoration Center, 
"Summary of rocket fire and mortar shelling in 2008", January 2009. 

126 OCHA, The Humanitarian Monitor, No. 30 (October 2008), available at: http ://www. ochaopt. org/documents/ 
ocha opt humanitarian monitor oct 2008 10 english.pdf . 

127 The 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". 

128 JTA, "Israel closes Gaza crossings after attack", 25 November 2008, available at http : ll\ ta. org/news/article- 
print/2008/1 1/25/1 00 1205/israel-closes-gaza-crossings-after-attack?TB iframe=true&width=750&height=500 . 

129 Israel Security Agency, "Weekly update, November 5-12, 2008", available at http://www.shabak.gov.il/ 
SiteCollectionlmages/english/Terrorlnfo/weekly -update- 12-11 -08-En.pdf . 



A/HRC/12/48 
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International issued a press release calling on Israel to allow humanitarian aid and medical 
supplies to enter 



130 



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. 131 

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). 132 On 14 November 2008, a resident of Sderot was lightly 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. 133 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. 134 

259. Rocket and mortar fire by Palestinian armed groups continued unabated throughout 
December 2008. 135 According to Israeli sources, 71 rockets and 59 mortars were fired into Israel 
between 1 and 18 December. 136 The number of rockets and mortars fired from the Gaza Strip 
into Israel spiked, 137 following the killing by the Israeli armed forces of an Islamic Jihad 



130 Amnesty International, "Israel blocks deliveries to Gaza", 14 November 2008, available at 
http://www.amnesty.org/en/news-and-updates/news/israeli-armv-blocks-deliveries-gaza-20081114 . 

131 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-armv-relaxes-restrictions-humanitarian-aid- 
gaza-20081117 . 

132 a 



'Summary of rocket fire . 



133 



JTA, "Israel closes Gaza crossings after attack... " and "Kassams continue to strike Negev", 27 November 2008, 
available at http://ita.org/news/article-print/2008/ll/27/1001233/kassams-continue-to-strike- 
negev?TB iframe=true&width=750&height=500 . 

134 OCHA The Humanitarian Monitor, No. 31 (November 2008), available at: http : //www .ochaopt.org/ 
documents/ocha opt humanitarian monitor 2008 111 english.pdf . 

135 See, for example, JTA, "Kassams fired again from Gaza", 3 December 2008, available at: http ://j ta. org/news/ 
article-prmt/2008/12/03/1001316/attacks-from-gaza-mcrease?TB iframe=true&width=750&height=500 ; JTA, 
"Rockets barrage Israel over weekend", 7 December 2008, available at: http : ll\ ta.org/news/article- 
print/2008/1 2/07/1 00 1377/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/2008/1 2/1 7/1 00 1 62 1 /more-kassams-rain-on-israel#comment 72450 ; and JTA, "Kassam 
rocket hits Sderot home", 21 December 2008, available at: http ://jta. org/news/article/2008/1 2/2 1/100171 3 /kassam - 
rocket-hits-sderot-home . 

136 " Summary of rocket fire . . . " . 

137 Ibid. 



A/HRC/12/48 
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commander in the West Bank on 15 December 2008. 138 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 



139 



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. 140 

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. 141 On 18 December, an Israeli air strike killed a man 
in Beit Lahia. 142 The same day, Israeli aircraft attacked a car maintenance workshop in the city 
of Khan Yunis in the southern Gaza Strip. The workshop was destroyed and a number of nearby 
houses were damaged 



143 



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. 144 

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. 145 Israel responded with air strikes into Gaza City, 
wounding a Palestinian infant in her home. 146 Israel's Prime Minister and Defense Minister 
stated that Israel would no longer practise restraint following the rocket attacks. 147 



138 JTA, "Kassams hit Israel after terrorist killed", 16 December 2008, available at: http ://jta. org/news/article- 
prmt/2008/1 2/16/1 00 1 575/kassams-hit-israel-after-terrorist-killed?TB iframe=true&width=750&height=500 . 

139 "jjjj-gg i n j ure( j " 

140 PCHR, "Weekly report on Israeli human rights violations in the Occupied Palestinian Territory", No. 48/2008 
(24 November - 3 December 2008), available at: httpV/www.pchrgaza.org/files/W report/English/2008/04-12- 
2008.htm . 

141 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/2008/1 8-1 2-2008.htm . The Mission 
notes the lack of clarity as to whether these were armed members of the Palestinian armed groups or civilians. 

142 Al-Jazeera, "Israeli missile kills Gaza man", 18 December 2008, available at: http://english.aljazeera.net/news/ 
middleeast/2008/1 2/2008 1 21721 428340460.html . 

143 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.0rg/files/W report/English/2008/24- 12-2008.htm . 

144 Reuters, "Hamas declares end to ceasefire with Israel in Gaza", 18 December 2008, available at: 
http://www.reuters.com/article/topNews/idUSLI75623220081218 . 



145 "Kassam rocket. 



146 , 



Weekly report. . . ", No. 50/2008. 



147 "Kassam rocket. 



A/HRC/12/48 
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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. 148 

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. 149 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. 150 

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 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. 151 On 

18 December 2008, UNRWA once again suspended its food distribution programme for the rest 
of the month, owing to shortages. 152 

267. On 27 December 2008, Israel started its military operations in Gaza. 153 

IV. APPLICABLE LAW 

268. The Mission's mandate covers all violations of international human rights law (UTRL) and 
international humanitarian law (ML) 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 ML. 

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 



148 JTA, "Hamas curtails launching rockets for 24 hours", 22 December 2008, available at: http : ll\ ta . org/news/ 
article -print/2008/1 2/22/1 00 1 726/hamas-stops-lauching-rockets-for-24-hours?TB iframe=true&width= 
750&height=500 ; " Summary of rocket fire 

149 " Summary of rocket fire . . . " . 

150 Fox News, "Palestinian rockets kill 2 schoolgirls in Gaza", 26 December 2008, available at 
http://www.foxnews.com/stoiy /0,2933,473066,00.html . 

151 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 . 

152 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 . 

153 The New York Times, "Israelis say strikes against Hamas will continue", 28 December 2008, available at: 
http://www.nvtimes.com/2008/12/28/world/middleeast/28mideast.html? r=2&hp . 



A/HRC/12/48 
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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 154 Self- 
determination has special prominence in the context of the recent events and military hostilities 
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. 155 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 
international law. 156 Under the rules of State responsibility, Israel is responsible for any 
violations of international law attributable to it. Specifically, under the Fourth Geneva 



154 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. 

155 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). 

156 "jjjg p era tion in Gaza. . . ", para. 3 1 . 



A/HRC/12/48 
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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, 157 
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 safely" 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" 158 ) in times of war regardless of the status of the occupied territories. 159 
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 
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". 160 

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. 



157 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. 

158 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. 

159 Legal Consequences... , para. 95. 

160 Prosecutor v. Naletilic, case No. IT-98-34-T, Decision of 3 1 March 2003, paras. 21 9-222. 



A/HRC/12/48 
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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", 161 the 
international community continues to regard it as the occupying Power. 



162 



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 Access 163 ) 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 
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. 164 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". 165 
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. 166 



161 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 . 

162 Security Council resolution 1860 (2009) and Human Rights Council resolution S-9/1. 

163 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://umspal.un.org/umspal.nsf/b987b5db9bee37bf85256d0a00549525/c9a5aa5245d910bb852570bb005171 lc/$FI 
LE/Rafah%20agreement.pdf . 

164 1 



165 



166 



' Prosecutor v. Naletilic, para. 217. 

Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 1995, art. I (1). 
Legal Consequences... , paras. 76-78. 



A/HRC/12/48 
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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. 

28 1 . 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 
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. 167 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". 168 

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. 169 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 Tadic case. 
Indeed, "what is inhumane, and consequently proscribed, in international wars, cannot but be 
inhumane and inadmissible in civil strife." 170 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 prohibitions against 
torture, murder and inhuman conditions of detention, recognized also under human rights law. 



167 The Public Committee against Torture in Israel v. The Government of Israel (Targeted Killings case). 

168 " j^ p era tion in Gaza. . . ", para. 30. 

169 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, 
Judgment, I.C.J. Reports 1986, p. 14. 

170 Prosecutor v. Tadic, 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. 



A/HRC/12/48 
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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 UTL 
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 UTL 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. 171 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: 

. . . 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." 



171 Ibid., paras. 128 IT. 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." 



A/HRC/12/48 
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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"). 172 

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 
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. 173 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. 



172 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. 

173 See International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Kunarac, case No. IT-96-23, 
Judgement of 12 June 2002, para. 85. 



A/HRC/12/48 
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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 
protection offered by human rights conventions does not cease in case of armed conflict, save 
through the effect of provisions for derogation. . . ," 174 

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". 175 

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". 176 Accordingly, the 
Human Rights Committee has considered that ICCPR also applies to the benefit of people within 
the Occupied Palestinian Territory. 177 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 
against Women by their States parties have equally determined that Israel's human rights 
obligations extend to the population of the Occupied Palestinian Territory. 178 

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. 



174 Legal Consequences..., para. 106; see also Legality of the Lhreat or Use of Nuclear Weapons, Advisory Opinion 
of 8 July 1996, I.C.J. Reports 1996, p. 226, para. 25. 

175 General comment No. 31 (2004), para. 10. 

176 Legal Consequences. . . , para. Ill; see also Case concerning Armed Activities. . . , para. 216. 

177 "Concluding observations of the Human Rights Committee" (CCPR/CO/78/ISR). 

178 See, for instance, "Concluding observations of the Committee on Economic, Social and Cultural Rights" 
(E/C. 12/1 /Add. 90). 



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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". 179 

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. 180 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 of 
such rights in those fields where competence has been transferred to Palestinian authorities". 181 
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." 182 

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." 183 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 



179 Case concerning Armed Activities. . . , para. 178. 



180 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). 

181 Legal Consequences. . . , para. 112. 

182 A/HRC/1 0/22, para. 20. 

183 "Concluding observations of the Committee against Torture" (CAT/C/ISR/CO/4, para. 1 1). 



A/HRC/12/48 
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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." 1S4 

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 
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. 185 

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. 186 

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. 



184 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. 

185 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). 

186 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. 



A/HRC/12/48 
page 8 1 

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. 



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A/HRC/12/48 
page 82 

PART TWO: OCCUPIED PALESTINIAN TERRITORY 

THE GAZA STRIP 

SECTION A: MILITARY OPERATIONS 

V. THE BLOCKADE: INTRODUCTION AND OVERVIEW 

311. The military operations of 28 December to 1 9 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. 
Hamas took over effective power in the Gaza Strip on 15 June 2007. Shortly thereafter Israel 
declared the Gaza Strip a "hostile territory," 187 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. 

3 14. 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 



187 http://www.mfa. gov. il/MFA/Government/Communiques/2007/Security+Cabinet+declares+Gaza+hostile 
+territorv+l 9-Sep-2007.htm . 



A/HRC/12/48 
page 83 

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 
of people), Nahal Oz (for fuel), Kami (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 uncertainly 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. 188 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, 
but not even that level was ever reached. 189 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 



188 OCHA, The Humanitarian Monitor, No. 33 (January 2009). 

189 International Labour Office, "The situation of workers in the occupied Arab territories", Report of the Director- 
General to the International Labour Conference, 98 session, 2009, appendix, para. 24. 



A/HRC/12/48 
page 84 

Strip in March 2009. Some 134 truckloads of cash crops were exported in total between June 
2007 and May 2009 



190 



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. 191 Other 
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. 192 

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. 193 
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). 



190 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. 

191 The Humanitarian Monitor, No. 32. 

192 The Humanitarian Monitor, No. 32, p. 5. 

193 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). 



A/HRC/12/48 
page 85 

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. 194 The petitioners comprised a group of NGOs operating within Israel together with 
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. 195 The Court's ruling recognizes that Israel has obligations 
under humanitarian law vis-a-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. 



194 Jaber Al-Bassiouni Ahmed et al. v. Prime Minister and Minister of Defense, case No. 9 1 32/07, Judgement of 30 
January 2008, available at http://elvonl.court.gov.il/Files ENG/07/320/091/n25/07091320.n25.pdf . 

195 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 . 



A/HRC/12/48 
page 86 

A. The parties relevant to the conduct of military activities in Gaza 
between 27 December 2008 and 18 January 2009 

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. 196 

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. 197 

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, 198 the al-Aqsa Martyrs' Brigades, the Islamic Jihad, the Abu Ali Mustafa Brigades, 199 
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). 200 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. 



196 See Anthony H. Cordesman, "The 'Gaza war': A strategic analysis", Centre for Strategic and International 
Studies (2009), p. 41. 

197 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. 

198 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. 

199 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 . 

200 During the period of the military operations in Gaza, al-Naser Salah ad-Din Brigades claimed responsibility for 
the launching of 1 32 rockets and 88 mortars. See http://www.moqawmh.com/moqa/view.php7view~ l&id=300 . 



A/HRC/12/48 
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B. The phases of the hostilities 
1. Air phase 201 

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 3 1 
December 2008. 202 

334. An analysis of the strikes in a report of the Palestinian Centre for Human Rights gives the 
following breakdown. 

335. "IOF [Israeli occupation forces] have launched at least 300 air and sea strikes against the 
Gaza Strip. These strikes have targeted 37 houses; 67 security and training sites; 20 workshops; 
25 public and private institutions; seven mosques; and three educational institutions. The public 
institutions that have been bombarded are: the compound of ministries, the building of the 
Palestinian Legislative Council, the building of the cabinet in Gaza City; the buildings of the 
agricultural control department and the Municipality of Bani Suhaila in Khan Yunis; the 
buildings of Rafah Municipality and Governorate. The air strikes have targeted also four money 
exchange shops, a clinic, three fishing harbours, the Islamic University and two schools." 203 

336. 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. 

337. 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 



204 



201 Although principally recognized as an aerial phase, there was a significant contribution from the Israeli navy not 
only in the first week. 

202 Cordesman, op. cit., p. 30. 

203 pqjjr "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/filesAV report/English/2008/pdf/weekly%20report%205 1 .pdf . 

204 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. 



A/HRC/12/48 
page 88 



The air-land phase 



338. 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". 205 

339. 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. 206 The 
division therefore ran from the Kami 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. 

340. 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 

341 . Corps Brigade also operated in this area but probably at a later stage. 207 Zeytoun, on the 
southern outskirts of Gaza, took the brunt of these brigade operations, with incidents of attacks 
on the civilian population. 

342. 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. 

343. 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. 

344. 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. 208 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. 209 

345. In the other brigade areas regular troops were augmented or replaced by reservists who 
were called up after the initial ground attacks. 



205 Ibid., p. 39. 

206 Breaking the Silence, Soldiers ' Testimonies from Operation Cast Lead, Gaza 2009, testimony 20, p. 48, available 
at: http://www.breakingthesilence.org.il/oferet/ENGLISH oferet.pdf . 

207 Soldiers ' Testimonies ... , testimony 2, p. 9. 

208 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. 

Soldiers ' Testimonies ... , testimony 2, p. 9. 



A/HRC/12/48 
page 89 

346. 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. 210 

347. 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. 

348. 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 
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. 

349. 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. 

350. 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. 211 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. 

351. Around 1 5 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 



210 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. 

211 See, for example, Haartez, "IDF investigation shows errant mortar hit UN building in Gaza", 1 1 January 2009, 
available at: http://www.haaretz.com/hasen/spages/1054284.html . 



A/HRC/12/48 
page 90 

strikes with several hundred targets hit, causing not only very substantial damage to buildings 
but also, according to some, underground structural damage 



212 



C. Data on casualties during the Israeli military operations in Gaza 
from 28 December 2008 to 17 January 2009 

1. Palestinian casualties 

352. 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), 213 as well as from PCHR, 214 Al Mezan 215 and B'Tselem. 216 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, 217 provided a list of all the children killed. 

353. 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. 

354. 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. 

355. PCHR divides the overall 1,417 victims into 926 civilians, 255 police 218 and 
236 combatants. 219 It reports that 313 of the dead were children and 116 women. 

356. 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. 220 Thus, according to PCHR 



212 UNOSAT Report. 

213 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. 

214 The list is available at: http://www.pchrgaza.org/files/PressR/English/2008/list.pdf . 

215 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. 

216 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 . 

217 The list is available at http://www.dci-pal.org/english/display.cfm?DocId=917&CategoryId=l . 

218 In the PCHR list of victims the police officers are classified as civilians. 

219 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.pclTrgaza.org/files/PressR/EnglislT/2008/36-2009.html 

220 "Cast lead offensive in numbers. . . ", p. 7. 



A/HRC/12/48 
page 91 

and Al Mezan, fewer than 17 per cent of the Palestinians killed during the military operations 
were combatants. 

357. 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. 

358. According to Defence for Children International, 348 children were killed during the 
military operations 



221 



359. 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". 222 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 
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. 223 

360. 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. 

361 . 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, 224 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. 



221 Defence for Children International confirmed the deaths of another five children caused indirectly by the military 
operations. 

222 IDF spokesperson, "Majority of Palestinians killed in operation cast lead: Terror operatives", 26 March 2009, 
available at http://dover.idf.il/IDF/English/News/todav/09/03/2602.htm ; see also The Jerusalem Post, "IDF releases 
cast lead casualty number", 26 March 2009. 

223 On the question of whether Gaza policemen were civilians or combatants, see chap. VII. 

224 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. 



A/HRC/12/48 
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362. The Mission also notes that - as the Government of Israel argues at length 225 - 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. 

363. 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, 226 although it has not 
encountered any information suggesting that this was the case. 227 

2. Israeli casualties 

364. The Israeli Ministry of Foreign Affairs reported that, during the military operations from 
27 December 2008 to 18 January 2009, there were four Israeli casualties 228 in southern Israel 



229 



230 



(all adults), of whom three were civilians and one was a soldier. In addition, nine Israeli 
soldiers were killed during the fighting inside the Gaza Strip, four of whom by friendly fire 
B'Teslem 231 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 



232 



225 "j^ p era tion in Gaza. . . ", paras. 89-141 . 



226 " j ne bidden dimension of Palestinian war casualties. . . ". This submission is examined in chapter VIII below. 

227 The Mission has, however, investigated cases of alleged extrajudicial executions of Palestinians by Palestinian 
armed groups during the military operations (see chap. XIX). 

228 http://www.mfa. gov. il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/Israel strikes back 
against Hamas terror infrastructure Gaza 27-Dec-2008.htm . 

229 http://www.mfa. gov. il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/Victims Hamas 
rocket fire Hamas ends calm Dec-2008.htm. 



230 http://www.mfa. gov. il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/ 
IDF soldiers killed Operation Cast Lead.htm . 

231 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 . 

232 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. alarabiva.net/articles/2009/0 1/1 9/645 1 3 .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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VII. ATTACKS ON GOVERNMENT BUILDINGS AND POLICE 

A. Deliberate attacks on Gaza government infrastructure 

1. Overview of damage to Gaza government buildings 

365. 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 1 1 were totally destroyed, including commercial centres such as markets, 
slaughterhouses and stores." 233 

2. The Israeli air strikes on the Gaza main prison and on 
the Palestinian Legislative Council building 

366. 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. 

367. 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. 

368. 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. 

369. While there were some discrepancies in the different accounts of this incident, the Mission 
was able to ascertain that the complex was attacked at 1 1 a.m. on 28 December 2008, on 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. 234 The accounts given by officials regarding the number of fatalities and injured 



233 Palestinian National Authority, Palestinian National Early Recovery and Reconstruction Plan for Gaza 
2009-2010, March 2009, p. 41. 

234 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 



A/HRC/12/48 
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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." 235 A number of prisoners injured in the 
attack went to al-Shifa hospital in Gaza City for treatment after escaping from the prison. 

370. 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. 236 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". 

371 . 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 3 1 
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 
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. 

372. 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. 3 1). 

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. 237 



been sentenced to death." See Human Rights Watch, Under Cover of War: Hamas Political Violence in Gaza (April 
2009), p. 11. 

235 . 



236 



"Ending the war. . . ", footnote 62. 
See also chapter XVI. 



237 



http://dover.idf.il/IDF/English/opcast/op/press/0101.htm . 



A/HRC/12/48 
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373. 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." 238 

3. The position of the Government of Israel 

374. 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". 

375. 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 
to the media. Major Avital Leibovich, a spokesperson of the Israeli armed forces, reportedly 
argued "anything affiliated with Hamas is a legitimate target." 239 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. 240 

376. 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." 241 

377. 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". 242 Less than three months before the hostilities in Gaza began, 
Col. Gabriel Siboni similarly argued that: 



238 Official statement by an Israeli military spokesman, 1 January 2009, available at: http : //dover. idf . il/IDF/ 
News Channels/art mi vz aim/0 9/0 1/0 101. htm (in Hebrew). 

239 The Washington Post, "All-out war declared on Hamas", 30 December 2008. 

240 Ynet, "Deputy chief of staff: worst still ahead", 29 December 2008. 

241 BBC News, "Gaza conflict: who is a civilian?", 5 January 2009, available at: http://news.bbc.co.Uk/2/hi/ 
middle east/781 1386. stm . 

242 "All-out war...". 



A/HRC/12/48 
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... 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. 243 

378. 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. 

379. 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 

• • 244 

institutions, to promote its terrorist activity. 

4. Factual findings 

380. 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. 

381. 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. 



243 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 . 

244 "jjjg p era tion in Gaza... ", paras. 233-235. 



A/HRC/12/48 
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Legal analysis 



382. 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. 245 

383. Since July 2007 Hamas has been the de facto government authority in Gaza. As 
recognized by the Israeli Government, 246 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." 247 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). 

384. The Mission met with Gaza-based Legislative Council members belonging to Hamas, to 
Fatah and to the Popular Front for the Liberation of Palestine. 248 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". 

385. 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: 249 



245 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." 

246 "The operation in Gaza. . . ", para. 235. 

247 Reply from the Gaza authorities to the Mission's list of questions (July 2009). 

248 The Mission also spoke with West Bank-based Legislative Council members. 

249 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. 



A/HRC/12/48 
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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. 

386. 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 
elements of [the Hamas] regime are in reality active components of its terrorist and military 
efforts." 

387. 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". 250 

388. 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. 



250 "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. 



A/HRC/12/48 
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389. 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. 

390. 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. 

391. 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. 

392. 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" 251 

B. Deliberate attacks on the Gaza police 

393 . Information received by the Mission indicates that 248 members of the Gaza police were 
killed in the course of Israel's military operations. 252 In other words, more than one out of every 
six casualties was a member of the Gaza police. 

394. 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 



251 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 21 st Century 
Conflicts, D. Wippman and M. Evangelista, eds. (Ardsley, New York; Transnational Publishers; 2005), p. 196. 

252 The Central Commission for Documentation and Pursuit of Israeli War Criminals (TAWTHEQ), established by 
the Gaza authorities' Ministry of Justice. 



A/HRC/12/48 
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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. 253 

395. 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. 

396. 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 1 1.20 and 

1 1.35 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. 

397. 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. 

1. Information regarding the attacks on the police headquarters 
and police stations visited by the Mission 

398. 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. 

399. 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". 254 
The contents of the training course reportedly were "protocol", i.e. how to deal with 



253 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. "Lhe operation 
in Gaza. . . " relies on this report, referring to it as "a recent study" (para. 247). 

254 Mission phone interview with Mr. Shahwan, Gaza police spokesperson, 12 July 2009. 



A/HRC/12/48 
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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." 255 

400. The police gave the Mission small cube-shaped (4x4x4 mm 3 and 2x4x4 mm 3 ) 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. 256 

401 . 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. 

402. 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. 25 ' 
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. 

403. Abbas police station in central Gaza City was, according to the station commander, hit by 
three missiles on 27 December 2008 at 1 1.35 a.m. 258 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. 



255 See http://www.alqassam.ps/arabic/sohdaa5.php7icN1342 . 

256 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, 1 1-12). 

257 i 



258 



Mission phone interview with Mr. Shahwan, Gaza Police Spokesperson, 12 July 2009. 
Interview with station commander, Maj. Iyad Jabr el Horani, 9 June 2009. 



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404. The police station in the al-Tuffah neighbourhood of Gaza City, a recently completed 
three-storey building, was struck by three missiles around 1 1.30 a.m. on 27 December 2009. 259 
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. 
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. 

405. The Deir al-Balah investigative police station was attacked between 1 1.30 and 1 1 .45 a.m. 
on 27 December 2008. According to a police officer interviewed by the Mission, 260 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 attack 261 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. 

406. 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-Burdini 262 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. 263 

407. 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. 264 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 debris. TAWTHEQ estimates the material damage caused by the attacks on al-Shujaeiyah and 
Zeytoun police stations atUS$ 210,000 and US$ 900,000, respectively. 



259 Interview with Tuffah station commander, Maj. Aymal el-Batniji, 9 June 2009. 

260 Interview with First Lieutenant Samih Sabbah, 30 June 2009. 

261 Interviews with First Lieutenant Samih Sabbah and criminal investigation officer Ahmad Abu Slimy a, 
30 June 2009. 

262 Interview with Refaet al-Burdini, 30 June 2009. 

263 Interview with Muhammad Ibrahim Khalid. Lhe names of two of the persons killed are on the PCHR list of child 
victims of the hostilities. 

264 Interviews with Zeytoun station commander, Maj. Mahmoud Kehael, and Lt. Mahmoud Idaho of al-Shujaeiyah 
station. 



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2. Conflicting characterizations of the Gaza security forces 

(a) The approach of the Government of Israel 

408. 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 
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." 265 

(b) The approach of the Gaza authorities 

409. 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. 

410. 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 



265 "The operation in Gaza... ", paras. 237, 239, 241-242 and 245-247. 



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Gaza police, but showed pride in their success in reducing lawlessness in the Gaza Strip. 266 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". 

411. 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 

267 

prices. 

3. The Mission's assessment of the role and composition of the police 

412. 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, 268 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. 269 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-Qwwwa 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 properly. At the same time, he 
appointed Mr. Jamal Abu Samhadana, commander of the Popular Resistance Committees, as the 
head of the Executive Force 270 and announced that it would be composed of 3,000 new recruits 



266 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. 

267 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 
"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). 

268 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.) 

269 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. 

270 Ibid., pp. 1 3 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. 



A/HRC/12/48 
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from various Palestinian armed groups, including al-Qassam Brigades. 271 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." 272 

413. 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." 273 

414. 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. 274 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, 275 are differentiated. 

415. 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. 276 The functions of the police 
have been outlined above. 

416. 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 



271 "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. 

272 "Palestinians, Israel, and the Quartet. . . ", footnote 105. 

273 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 . 

274 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. '" 

275 See the Arabic-language website of the Gaza Ministry of Interior: http : //www . moi . go v . p s/ 
?page=633734043174687500 . 

276 See the Arabic-language website of the National Security Forces: http://www.nsf gov.ps . 



A/HRC/12/48 
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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 
("*?■'_« _" in Arabic) the enemy, if the Gaza Strip were to be invaded." 277 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. 

417. 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. 278 

418. 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. 

419. 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 



' 77 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". 

278 In "Fatal casualties. . . ", the Orient Research Group Ltd, however, identifies 3 1 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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activists of Hamas or other terrorist organizations", 279 appears to be an overstatement that has led 
to prejudicial presumptions against the nature of the police force that may not be justified. 

420. 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. 280 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. 281 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. 

421 . 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. 

422. 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. 
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. 

423. 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". 282 



1 "The operation in Gaza. . . ", para. 247. 
1 Mission meeting with Director of Police, 4 June 2009. 
Mission interviews with Gaza City police station commanders, 9 June 2009. 
: Al Mezan Center for Human Rights, "Cast lead offensive in numbers", p. 5. 



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Factual findings 



424. 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. 283 

425. The facts gathered by the Mission indicate that the policemen were the intended targets of 
the attacks. The Israeli Government 284 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. 

426. 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 1 1.30 a.m. on 27 December. 

427. 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. 

428. 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. 



283 "Fatal casualties... " assigns the remaining victims to national security (5), civil defence (1 1) and internal security 
(2), with the remaining 85 identified as belonging to security forces without being able to state which one. 

284 " j^ p era tion in Gaza. . . ", pp. 89-95. 



A/HRC/12/48 
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429. 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 

(a) The applicable rules of international humanitarian law 

430. 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. 285 This principle is accepted by the Israeli 
Government. 286 The obligation to distinguish at all times between the civilian population and 
combatants and to direct attacks only against military objectives 287 (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. 

43 1 . 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 
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. 288 Thirdly, individual members of the law-enforcement agency, like any civilians, 



285 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." 

286 " jjjg p era tion 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." 

287 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. 

288 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). 



A/HRC/12/48 
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may not be targeted "unless and for such time as they take a direct part in hostilities." 289 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. 

(b) Conclusion 

432. The Mission will now draw conclusions with regard to each of these grounds potentially 
justifying the attacks against the police. 

433. 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. 

434. 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. 290 

435. 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" 291 



289 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". 

290 This finding does not apply to those policemen who were members of al-Qassam Brigades, who were therefore 
combatants and not civilians. 

291 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. 



A/HRC/12/48 
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436. 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. 292 

437. 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 stations 293 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 
and the Deir al-Balah investigative police station constituted disproportionate attacks in violation 
of customary international humanitarian law. 

438. 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 

439. 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. 

440. 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 



292 "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, art. 50 (3)). 

293 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 1 80, according to the Orient Research Group Ltd. See 
"Fatal casualties. . . ". 



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reasons for their reluctance, the Mission does not discount that the interviewees' reluctance may 
have stemmed from a fear of reprisals 



294 



441 . 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. 295 To 
gather first-hand information on the matter, the Mission requested a meeting with representatives 
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. 

442. 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, and by NGOs. 

443. 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. 298 

444. 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 



294 See chap. XX. 

295 Response of the Gaza authorities to the Mission. 



296 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. 

2 ' 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). 

298 "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 



,,299 



445 . 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 

446. 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. 

447. 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. 

448. 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. 300 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. 301 

449. 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. 302 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 



299 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). 

300 Mission interview with RA/01, June 2009. 

301 Mission interview with RA/02, June 2009. 

302 Israel/Gaza: Operation "Cast Lead": 22 days. . . , pp. 74-75; "Gaza's unfinished business. . . ", p. 3; Rockets from 
Gaza..., p. 21. 



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rockets, from entering a garden next to the building in which they lived. 303 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. 304 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. 305 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. 

450. 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. 306 

45 1 . 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 
Government's paper 307 and in several of the submissions it received. 308 The Mission notes that it 
is not reasonably possible to determine whether those photographs show what is alleged. As the 
Israeli Government concedes, 309 many of them refer not to the December 2008-January 2009 
period, but to previous alleged instances of firing of rockets from Gaza 



310 



452. 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. 

453. 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 



303 Rockets from Gaza. . . , p. 22. 

304 "Gaza's unfinished business. . . ", p. 3, footnote 29. 

305 Israel/Gaza: Operation "Cast Lead": 22 days... , p. 74. 

306 Rockets from Gaza... , p. 21 ; "Gaza's unfinished business. . . ", p. 3. 

307 "jjjg p era tion in Gaza. . . ", para. 1 55. 

308 See, for instance, submission to the Mission by Mr. Maurice Ostroff. 

309 " jjjg operation in Gaza. . . ", para. 1 55. 

310 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.voutube.com/watch?v=UN9WzUc7iB0 



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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" 



311 



454. 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. 

455. The Mission also examined the question of the presence and activities of members of 
Palestinian armed groups in chapter XL As already mentioned, Palestinian witnesses were 
generally reluctant to speak to the Mission about the activity of Palestinian armed groups in their 
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. 312 

456. 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". 313 

457. 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. 

458. 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. 

459. 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. 314 According to 
another NGO report, "Hamas fighters plainly were frustrated by their inability to engage in street 



"Gaza's unfinished business. . . ", p. 3. 
: See the case of Majdi Abd Rabbo in chapter XIV. 
' "The hidden dimension of Palestinian war casualties. . . ", pp. 1 -2 and 20. 
' Soldiers ' Testimonies... , testimony 34, p. 76, and Rabin Academy testimonies. 



A/HRC/12/48 
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battles". 315 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. 316 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. 

460. 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 

461 . 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. 

462. 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 
of the civilian population " 317 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. . ,". 318 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- 



315 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). 

316 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). 

317 ■ 



318 



"The operation in Gaza... ", paras 181. 

Soldiers ' testimonies... , testimony 20, p. 48, and testimony 23, p. 54. 



A/HRC/12/48 
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trapped civilian houses were a frequently used tactic. 319 According to the Israeli Government, 
"because roads and buildings were often mined, IDF forces had to target them to protect 
themselves". 320 

463. 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 

464. 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. 321 The Mission notes that Israeli soldiers speaking at the Rabin Academy 
"Fighters' Talk" recount coming under fire from Palestinian combatants positioned in a 

322 

mosque. 

465 . 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 chap. 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 

466. 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 



319 See "The hidden dimension of Palestinian war casualties. . . ". 

320 " jjjg p era tion in Gaza. . . ", paras 1 84. On the destruction of civilian houses by the Israeli armed forces, see chap. 
XIII. 

321 "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. 

322 "Fighters' Talk" testimonies, pp. 4-5. 



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Crescent . . . and the use of hospitals and medical infrastructure as headquarters, situation 
rooms, command centres and hiding places 



323 



467. 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 
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. 

468. In its report, the Government of Israel states that Hamas used two units and a ground-floor 



324 



325 



wing of al-Shifa hospital, the largest in the Gaza Strip, as a military base. As its sources, it 
cites an interview with a "Hamas activist" captured by Israel and an Italian newspaper article, 
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. 

469. 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 

470. 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." 



326 



471 . 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. 



'The operation in Gaza... ", para. 171. 



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." 

325 Corriere della Serra, "Cosi i ragazzini di Hamas ci hanno utilizzato come bersagli", 21 January 2009. 

326 "j^ p era tion in Gaza. . . ", para. 176. 



A/HRC/12/48 
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472. 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. 327 

473. 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 Adorn 
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." 328 

474. 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 

475. 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 
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 indoors or because they had no safe place to go. In additional, 
some witnesses stated that they had chosen to stay because they wished to watch over their 
homes and property. 331 The Mission did not find any evidence of civilians being forced to remain 
in their houses by Palestinian armed groups. 



327 Ibid., para. 177-179. 

328 Communication by Magen David Adom to the Mission, 9 August 2009. Magen David Adorn 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. 

329 Mission interview with Khaled Abd Rabbo. 

330 See chap. IX. 

331 Interview with Abbas Ahmad Ibrahim Halawa, 3 June 2009 (see chap. XIV on the case of Abbas Ahmad Ibrahim 
Halawa). 



A/HRC/12/48 
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476. 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 domain 332 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, 333 
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. 

477. 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, [Hamas] 
created a human shield of women, children, the elderly and the mujahideen, against the 
Zionist bombing machine. 334 

478. 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 

479. 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". 335 

480. 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- 



332 See http : //switch3 . castup . net/cunet/gm. asp? ai=5 8& ar=StandingOnRoof- V& ak=null . 

333 See the case of Mr. Abu Askar in chapter X. 

334 " jjjg p era tion in Gaza. . . ", para. 1 86. A video recording of this speech is available at http://www.youtube.com/ 
watch?v=Ar.Tbn-lUCh4 . 

335 See the case of Mr. Majdi Abd Rabbo in chapter XIV. 



A/HRC/12/48 
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Qassam Brigades abandoned military dress and patrolled streets "in civilian clothes". 336 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". 337 

48 1 . 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". 338 

G. Factual findings 

482. 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. 

483. 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. 339 

484. 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. 



336 "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. 

Israel/Gaza: Operation "Cast Lead" : 22 days... 

338 "jjjg p era tion in Gaza. . . ", para. 1 86. 

339 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. 



A/HRC/12/48 
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485. 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 
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. 

486. 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. 

487. 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. 

488. 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 

489. 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." 340 

490. Each party to the conflict must, to the extent feasible, avoid locating military objectives 
within or near densely populated areas. 341 Each party to the conflict must, to the extent feasible, 
remove civilian persons and objects under its control from the vicinity of military objectives. 342 

491. 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 
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. 343 

492. 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: 



' Customary International Humanitarian Law ... , rule 22. 



341 Ibid., rule 23. 



342 Ibid., rule 24. 

343 See chap. IX. 



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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. 344 

493. 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. 

494. 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. 

495. 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. 

496. 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. 

497. 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 



Customary International Humanitarian Law ... , rule 97. 



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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. 

498. 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. 345 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 

499. 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 

500. The Israeli Government has stated that it took the following steps to warn the civilian 
population of Gaza 



}U 



• 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; 



345 See chap. IV. 

346 http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF warns Gaza population 7-Jan-2009.htm . 



A/HRC/12/48 
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• 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 

347 

operations; 

• In total some 2,500,000 leaflets were dropped. 348 

501 . 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"). 349 

502. 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. 350 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 

503. 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. 

504. 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. 



347 " j^ p era tion in Gaza. . . ", para. 264. 



348 Ibid. 

349 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'...). 

350 http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF warns Gaza population 7-Jan-2009.htm . 



A/HRC/12/48 
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505. 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 

506. 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. 351 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 
claims to have made such a warning shot, albeit to the wrong house. 352 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 

507. 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, Kami 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 



353 



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. 



351 "The operation in Gaza... ", para. 264. 



352 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. 

353 http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF warns Gaza population 7-Jan-2009.htm . 



A/HRC/12/48 
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508. 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 DDF will hit and destroy any building or site containing ammunition 

and weapons; 

• 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. 354 

509. 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. 355 

4. Factual findings 

510. 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. 

511. Israel was in a strong position to prepare and issue effective warnings. The preparations 
for its military operations were "extensive and thorough." 356 Israel had intimate knowledge and 



354 Ibid. 

355 "No safe place", report of the Independent Fact Finding Committee on Gaza presented to the League of Arab 
States (30 April 2009), p. 24 1 . Note a similarly specific kind of warning issued to the residents of al-Shuj aeiy ah 
("The operation in Gaza... ", footnote 225). 

356 Prime Minister Olmert, press conference on 27 December 2008, available at: http : //www . mf a .gov. il/MF A/ 
Government/Speeches+bv+Israeli+leaders/2008/PM Olmert press briefing IDF operation Gaza Strip 27-Dec- 
2008.htm. 



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sophisticated up-to-date intelligence in its planning. It had the means to use the landlines and 
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. 

512. 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. 357 

(a) The question of whether civilians could be expected to respond to the warnings to 
leave their homes 

513. 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. 

514. 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. 

515. 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. 

516. 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 
shock. The widespread attacks created a dilemma not only about where to go but about whether 
it was safe to leave at all. 

517. 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. 



357 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. 



A/HRC/12/48 
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(b) Events in the city centre after the warning to go there was issued 



518. 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. 358 

519. 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." 359 

520. 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). 

521 . 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. 360 

(c) The inference that those who did not go to the city centres must be combatants 

522. 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. 361 
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 



358 The Mission concludes elsewhere that this attack was indiscriminate in nature (see chap. X). 

359 The Daily Mail, "Gaza's darkest day: 40 die as Israel bombs 'safe haven' UN school", 7 January 2009. 

360 Press conference on humanitarian situation in Gaza (16 January 2009), available at http : //www . un . or g/ 
News/briefings/docs/2009/0901 16 Gaza.doc.htm . See also "No safe place", p. 74. 

361 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 ' 
Testimonies 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 chap. XI. 



A/HRC/12/48 
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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. 362 

523. 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 

524. According to press reports, 363 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 in 
warnings. The press report goes on to say: "Fliers distributed by the DDF 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." 

525. 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 

526. 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." 

527. 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." 

528. The Mission regards both these provisions to be norms of customary international law. 364 
In addition, Israel appears to consider itself bound by the obligation to provide effective 
warnings under customary law. 



362 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 . 

363 See Ynetnews, "IDF to give better warnings before attacks", 29 September 2007. 

364 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. 



A/HRC/12/48 
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529. 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 
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. 

530. 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 

531. 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 

532. The Mission is doubtful whether roof-knocking should be understood as a warning as 
such. 365 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. 

533. 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. 

534. 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 



365 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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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. 

535. 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 

536. 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 

537. 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). 

538. 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. 

539. 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. 

540. 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. 

541. 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. 



A/HRC/12/48 
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542. 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 

543. 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 
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. 

544. 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. 

545. The Mission will not here repeat all of the details of the attack that are recounted 
accurately in a number of other reports. 366 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. 

546. 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. 



366 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 1 9 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 



547. 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 

548. 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. 

549. Conservative estimates suggest that between 600 and 700 civilians were taking shelter in 
the compound at that time. 

550. 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 

551. 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 certainly: 

552. 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. 

553. One high explosive shell struck the Gaza Training Centre's yard and was witnessed by at 
least two guards and left a crater. 

554. Two high explosive shells landed on the roof of the education building. There are two 
large holes in the roof and shrapnel all around. 

555. A white phosphorous container shell struck the Project and Logistics Division Building. 

556. 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. 



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557. 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. 

558. One white phosphorous container shell landed in the workshop embedding itself in the 
concrete. 

559. One white phosphorous container shell or a substantial part thereof came through the roof 
of the painting bay. 

560. One white phosphorous container shell or a substantial part thereof struck a manhole 
cover near small warehouses storing food. 

561 . One white phosphorous container shell struck near a generator on concrete ground. 

562. 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. 

563. 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 

564. For the purposes of liaison with the Israeli authorities, the counterpart of the United 
Nations Department of Safely 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. 

565. 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. 

566. 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. 

567. 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 



A/HRC/12/48 
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Israeli fire, the damage done to UNRWA installations, requests that fire be redirected or 
withdrawn, and coordination for the removal of fuel tankers. 

568. 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 1 1.06 a.m. 

569. 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 
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 

570. 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. 

571 . Three other missiles were determined clearly by UNRWA military experts to have been 
high explosive missiles. 

6. The Israeli response 

572. 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. 367 

573. On 22 April the summary of the conclusions of the Israeli armed forces' investigations 
reported as follows: 

... 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 



367 



http://www.ipost.com/servlet/Satellite?cid=1232292898771&pagename=JPArticle%2FShowFull . 



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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. 368 

574. 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: 

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. 369 

575. 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. 



368 http://dover.idf.il/IDF/English/opcast/postop/press/2202.htm . 

369 "j^ p era tion in Gaza... ", paras. 344 and 346. 



A/HRC/12/48 
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576. 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. 

577. 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. 

578. 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. 

579. 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. 

580. 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. 

581. 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 10.3 1 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. 

582. 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. 

583. 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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584. At 1 1 .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. 

585. 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 

586. 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. 

587. 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 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 



370 



370 u 



Final report to the Prosecutor. . . ", para. 28. 



A/HRC/12/48 
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588. The Mission agrees that this passage correctly reflects both the nature of the intent 
required and the relevant duties of a commander. 

589. 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. 

590. 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. 

591. 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 certainly that firing by Palestinian armed groups had occurred from 
within the UNRWA compound. 371 This was later contradicted and corrected to state that the 
armed groups occupied positions near to but outside the compound. 372 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. 

592. 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. 

593. 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. 

594. 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 



371 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/i an/1 5/israel-gaza-offensive -truce -talks . The same quotation is reported in multiple sources. 

372 " jjjg p era tion in Gaza. . . ", para. 347. 



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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. 

595. 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 
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 

596. 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. 

597. 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. 

598. 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 
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. 



A/HRC/12/48 
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1. The facts 



599. 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. 

600. 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. 

601 . 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 
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. 373 

602. 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. 

603 . By this time a large number of civilians (several hundreds) had also gathered in the 
hospital buildings seeking safety. 

604. 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. 

605. 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 



373 Interview with Dr. Jaber Abu al-Naja, 4 July 2009. 



A/HRC/12/48 
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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. 

606. 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. 

607. 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. 

608. 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. 

609. 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. 

610. 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. 

611. 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 

612. The Israeli authorities did not specifically mention the incident at al-Quds hospital in the 
conclusions of their investigations on 22 April 2009. 374 



374 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 . 



A/HRC/12/48 
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613. 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.' 375 

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. 

614. 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. 

3. Factual findings 

615. 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. 

616. 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. 

617. 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 



375 "Hamas and its discontents", 20 January 2009. 



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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. 

618. 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. 

619. 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 



376 



620. 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. 

62 1 . 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. 377 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. 

622. 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 



376 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 . 

377 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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on the hospital occurred and the apparently unexplainable crushing of ambulances parked 
outside the depot. 

623 . 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 

624. 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. 

625. 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." 

626. 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. 

627. 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. 

628. 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. 

629. 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 

630. 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. 

63 1 . 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 



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those suffering from head and spinal injuries. Many patients are elderly. It can accommodate 
over 50 patients. 

632. 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 

633. 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. 

634. 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 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. 

635. 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. 

636. The white phosphorous caused damage to the administrative building only, destroying the 
roof. 

637. 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. 

638. 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. 

639. 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. 

640. Doctors estimate that the tanks were as close as 70 metres from the hospital. 

641 . The damage to the hospital (as a result of the two attacks) is estimated at US$ 550,000. 



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642. 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. 

643. 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. 

644. 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). 378 

2. Factual findings 

645. 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. 

646. 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. 

647. 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 

648. 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. 

649. 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. 

650. 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. 



378 See http://www.hrea.org/lists/hr-health-professionals/markup/msg00099.html . 



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65 1 . 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. 

652. 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 

653 . 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. 

654. The Mission interviewed Mr. Muhammed Fouad Abu Askar on three occasions. His 
brother and two sons were killed in the attack. 380 It also met surviving members of the al-Deeb 
family on two occasions. 381 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 

655. 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. 

656. 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 



379 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. 

380 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 
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. 

381 Two of the members of the family also presented their testimony at the public hearings in Gaza. 



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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. 

657. 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. 

658. 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 
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. 

659. 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. 

660. 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. 

661. 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. 382 
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, 1 1 members of the family died, including four women and four girls. 

662. 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. 



382 Ziyad al-Deeb testified before the Mission at the public hearings in Gaza along with his uncle. 



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663. 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. 383 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. 

664. 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. 

665. 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. 

666. 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 

667. 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. 

668. 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 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 



3k;i 



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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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 



384 



385 



669. Further statements from spokespersons for the Prime Minister, the Foreign Ministry and 
the Israeli armed forces all adhered to the position set out in the statement cited above. In 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". 386 

670. The position set out on 6 January was repeated again in comments to the press on 12 
January by an Israeli armed forces' spokesman 



387 



671. 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". 

672. On 22 April 2009 the Israeli armed forces published the results of their preliminary 
investigations, stating a completely different position from that previously expressed: 



384 http://www.mfa. gov.il/MFA/Government/Communiques/2009/Initial inquiry school incident 6-Jan-2009.htm . 

385 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=9wv0giW 1 elo&feature=PlayList&p=927781 0AA376DF8D&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 
=l&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/ 
bcpidll84614595?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.ll/IDF/Englislr/News/today/09/4/2201.htm . 

386 See https://www.csidonline.org/resource s/news/9/462-strike-on-gaza-school-kills- 
40?tmpl=component&print= 1 &page 

387 The statement of Captain Ishai David in The Jerusalem Post on 12 January 2009. 



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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. 388 

673. 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 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 

„.. 389 

mortars. 

D. Other reports 

674. 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. 390 

675. 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. 

676. 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, which turned out to be erroneous. 

677. The Mission notes the comment of Colonel Moshe Levi in The Jerusalem Post on 

15 February 2009 casting doubt on the numbers of dead noting that Israeli surveillance saw only 



388 http://dover.idf.ll/IDF/English/News/todav/09/4/2201.htm . 

389 " j^ p era tion in Gaza. . . ", para. 338. 

390 One report comes from the Associated Press, whose sources insisted on anonymity. The other is by a 
correspondent of the British Channel 4 News programme who reports that locals told him "militants had been firing 
rockets" at the Israeli armed forces and were running down the street to get away. See Jonathan Miller, " Why UN 
'reversal' over Gaza school should be treated with caution " . Channel 4 , 5 February 2009, available at: 
http://www.channel4.com/news/articles/world/middle east/why +un+reversal+over+gaza+school+should+be+treate 
d+with+caution/2924657 . 



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a few stretchers being used to lift the dead and injured. If Israel had that capacity of surveillance 
in the immediate aftermath of the shelling, it must have been able to see that the shells had hit on 
the street outside the school and not inside the school. Furthermore, if such surveillance was 
recorded, in the face of serious allegations levelled against the Israeli armed forces by several 
sources after the military operation in Gaza, the Government could have made this footage 
public in order to establish the truth of its claims regarding this incident. 

678. Finally, the Mission comes to the repeated assertion of the Israeli authorities as to the 
identities of those killed in the strikes. The most detailed attempt to name these come in Col. 
Levi's statement of the 12 dead, including nine militants and three non-combatants. On 

19 February The Jerusalem Post published seven of the names given to them by CLA. The 
Mission notes that CLA did not provide any information to explain where the information on the 
dead came from. None of the seven names corresponds with any the Mission has so far 
established died in the attack. 

679. The position assumed by Colonel Levi of CLA is problematic in the light of the relatively 
uncomplicated case of the al-Deeb family, of whom nine members died immediately and two 
died later. Four of these were women and four were children. Given these figures alone, and the 
relative ease with which the victims could be identified, the Mission considers the CLA 
assertions as to the total numbers and identities of those killed in the Israeli armed forces' mortar 
strikes to be unreliable. Even if the Israeli authorities were to be correct in saying that nine 
combatants were killed, they are, in the considered view of the Mission, incorrect in stating that 
only three non-combatants were killed. 

680. A further assertion made several times by Israeli spokespersons on 6 and 7 January and 
confirmed again on 12 January was that the strikes had not only managed to hit the militant 
rocket launchers but had also killed two senior Hamas militants, namely Imad Abu Askar and 
Hassan Abu Askar. 391 Again, for the most part these early assertions indicated that both had been 
killed in the UNRWA school. It is noticeable that the Israeli armed forces' summary of their own 
preliminary investigations does not repeat this claim. 

68 1 . What is now clear is that, if any Hamas operatives were killed by the Israeli strike, they 
were not killed in the school premises. It is difficult for the Mission to understand how the Israeli 
authorities could establish with such certainty within a matter of hours the identities of two of the 
Hamas operatives it had killed but could not establish within a week that the alleged firing had 
not come from the school and that the Israeli armed forces had not hit the school. 

682. The Mission is satisfied that three Abu Askar family members were killed: Imad, aged 13, 
his brother Khaled, aged 19, and their uncle, Arafat, aged 33. Mr. Mark Regev indicated that 
Imad Abu Askar was a well-known member of Hamas' s militant operation and of some 
significance in the rocket-launching operations. Major Leibovich and Captain Rutland also 
named Imad as one of the two operatives killed. 



391 In her interview with Channel 4 News, Major Leibovich in fact appears to say "Amr Abu Askar" after some 
hesitation but in the light of the other statements the Mission considers this to have been an error on her part and that 
in all likelihood she intended to say "Imad". 



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683 . The Mission does not deny the possibility of children being recruited by Palestinian armed 
groups. However, in the case of Imad Abu Askar, the Mission is satisfied that he was not a 
Hamas operative. Apart from his father's vehement and, in the Mission's view, credible rejection 
of any such claim, two other factors appear relevant. Firstly, since it has become clear that Imad 
was a 13-year-old boy it is noticeable that Israel has not commented further on the allegation of 
his alleged Hamas activity in general or the allegation in particular that on the day in question he 
had launched mortars at Israel. 

684. Secondly, the Israeli armed forces directly called Mr. Abu Askar early in the morning of 
6 January notifying him that his house would be attacked imminently. If Imad Abu Askar was as 
notorious and important as alleged, despite his young age, the Mission presumes that the Israeli 
authorities would have known where he lived and, in particular, that he lived in the very house 
they were about to destroy. It is extremely doubtful that the Israeli armed forces, having 
identified the house where alleged Hamas militants of some significance lived, would warn them 
so that they may escape and then bomb the house. 

685. There is no indication that anyone of the name of Hassan Abu Askar was killed in the 
attacks as far as the Mission can determine. The Mission notes that the two Hamas operatives 
Israeli reports refer to were at least on one occasion referred to as brothers. Mr. Abu Askar 
confirms that there is no one of such a name in his family. 

686. It would appear that shortly after the attack the Israeli armed forces received some 
information that two Abu Askar brothers had been killed. That much is indeed true. However, 
the use made of that information appears to the Mission to have been knowingly distorted. The 
brothers were Imad and Khaled, not Imad and Hassan as asserted. One was a 13 -year-old boy, 
the other was a recently married 19-year-old. The certainty and specificity with which the Israeli 
authorities spoke at the time make it very difficult for them to suggest now that they had simply 
mixed up the names. 

E. Factual findings 

687. The facts gathered by the Mission indicate that on 6 January 2006 at around 1.45 a.m. the 
Israeli forces called Mr. Abu Askar' s house, alerted him to the imminent strike on his house and 
proceeded to destroy it with an aerial strike about seven minutes later. As a result of the warning, 
Mr. Abu Askar was able to save himself and his family. The Mission finds that the Israeli forces 
did not seek to kill Mr. Abu Askar or the members of his family with this strike. 

688. The Mission also finds that at around 4 p.m. Israeli forces launched at least four mortar 
shells. One landed in the al-Deeb courtyard, killing nine people immediately and two later on. 

689. Three other shells landed on al-Fakhura Street, which was busy at the time, killing at least 
a further 24 people and injuring as many as 40. 

690. The Mission notes that the attack may have been in response to a mortar attack from an 
armed Palestinian group but considers the credibility of Israel's position damaged by the series 
of inconsistencies and factual inaccuracies. 



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F. Legal findings 



691. Elements of article 50 of Additional Protocol I reflect customary international law and 
provide the following: 

2. The civilian population comprises all persons who are civilians. 

3. 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. 

692. Article 57 is relevant in relation to the following provisions: 

1 . In the conduct of military operations, constant care shall be taken to 
spare the civilian population, civilians and civilian objects. 

2. With respect to attacks, the following precautions shall be taken: 

(a) Those who plan or decide upon an attack shall: 

(i) Do everything feasible to verify that the objectives to be attacked are 
neither civilians nor civilian objects and are not subject to special 
protection but are military objectives within the meaning of paragraph 2 
of article 52 and that it is not prohibited by the provisions of this 
Protocol to attack them; 

(ii) Take all feasible precautions in the choice of means and methods of 
attack with a view to avoiding, and in any event to minimizing, 
incidental loss of civilian life, injury to civilians and damage to civilian 
objects; 

(iii) Refrain from deciding to launch any attack 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; 

(b) An attack shall be cancelled or suspended if it becomes apparent that the 
objective is not a military one or is subject to special protection or that the attack 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; 

(c) Effective advance warning shall be given of attacks which may affect the 
civilian population, unless circumstances do not permit. 

693. The Mission considers there are two key issues to be considered in the present case: the 
issue of proportionality in relation to the military advantage to be gained and the choice of 
weapons used. 



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694. A detailed discussion of the difficulties of assessing military advantage is presented in the 
analysis of the Committee established to review the NATO bombing campaign against the 
Federal Republic of Yugoslavia in 1998. 392 According to that Committee, the following are some 
of the relevant questions to be asked: 

(a) What are the relative values to be assigned to the military advantage gained and the 
injury to non-combatants and or the damage to civilian objects? 

(b) What do you include or exclude in totalling your sums? 

(c) What is the standard of measurement in time or space? And 

(d) To what extent is a military commander obligated to expose his own forces to danger 
in order to limit civilian casualties or damage to civilian objects? 

695. The Committee reflected further: 

The answers to these questions are not simple. It may be necessary to resolve 
them on a case-by-case basis, and the answers may differ depending on the background 
and values of the decision maker. It is unlikely that a human rights lawyer and an 
experienced combat commander would assign the same relative values to military 
advantage and to injury to non-combatants. Further, it is unlikely that military 
commanders with different doctrinal backgrounds and differing degrees of combat 
experience or national military histories would always agree in close cases. It is 
suggested that the determination of relative values must be that of the "reasonable 
military commander". Although there will be room for argument in close cases, there 
will be many cases where reasonable military commanders will agree that the injury to 
non-combatants or the damage to civilian objects was clearly disproportionate to the 
military advantage gained. 

696. Accepting that these views are helpful to inform the present discussion, the Mission finds 
the following: 

(a) The military advantage to be gained was to stop the alleged firing of mortars that 
posed a risk to the lives of Israeli armed forces; 

(b) Even if there were people firing mortars near al-Fakhura Street, the calculation of the 
military advantage had to be assessed bearing in mind the chances of success in killing the 
targets as against the risk of firing into a street full of civilians and very near a shelter with 
1,368 civilians and of which the Israeli authorities had been informed. 

697. The Mission recognizes that for all armies proportionality decisions will present very 
genuine dilemmas in certain cases. The Mission does not consider this to be such a case. 



392 "Final report to the Prosecutor. . . ", paras. 47-50. 



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698. The Mission does not say that the Israeli armed forces had to accept the risk to themselves 
at all cost, but in addressing that risk it appears to the Mission that they had ample opportunity to 
make a choice of weapons that would have significantly limited the risk to civilians in the area. 
According to the position the Government has itself taken, Israeli forces had a full 50 minutes to 
respond to this threat - or at least they took a full 50 minutes to respond to it. Given the 
mobilization speeds of helicopters and fighter jets in the context of the military operations in 
Gaza, the Mission finds it difficult to believe that mortars were the most accurate weapons 
available at the time. The time in question is almost 1 hour. The decision is difficult to justify. 

699. The choice of weapon - mortars - appears to have been a reckless one. Mortars are area 
weapons. They kill or maim whoever is within the impact zone after detonation and they are 
incapable of distinguishing between combatants and civilians. A decision to deploy them in a 
location filled with civilians is a decision that a commander knows will result in the death and 
injuries of some of those civilians. 

700. Even if the version of events presented now by Israel is to be believed, the Mission does 
not consider that the choice of deploying mortar weapons in a busy street with around 

150 civilians in it (not to mention those within the school) can be justified. The Mission does not 
consider that in these circumstances it was a choice that any reasonable commander would have 
made. 

701 . From the facts available to it, the Mission believes that there has been a violation of: 

• Additional Protocol I, articles 57 (2) (a) (ii) and (iii) as set out above; 

• The inherent right to life of the Palestinian civilians killed in the above incidents by 

depriving them arbitrarily of their life in violation of article 6 of the International 
Covenant on Civil and Political Rights. 

702. The Mission views as being unreliable the versions given by the Israeli authorities. The 
confusion as to what was hit, the erroneous allegations of who was specifically hit and where the 
armed groups were firing from, the indication that Israeli surveillance watched the scene but 
nonetheless could not detect where the strikes occurred, all combine to give the impression of 
either profound confusion or obfuscation. 

703 . Whatever the truth, the Mission is of the view that the deployment 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. 

XI. DELIBERATE ATTACKS AGAINST THE CIVILIAN POPULATION 

704. According to the Israeli Government, the Israeli armed forces' rules of engagement for 
the military operation in Gaza emphasized the principle of distinction as one of four "guiding 
principles that applied in an integrated and cumulative manner: military necessity, distinction, 
proportionality and humanity". It defines the principle of distinction in the following terms: 
"Strikes shall be directed against military objectives and combatants only. It is absolutely 



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prohibited to intentionally strike civilians or civilian objects (in contrast to incidental 
proportional harm)." 393 

705. The Mission investigated 1 1 incidents in which serious allegations of direct attacks with 
lethal outcome were made against civilians. There appears to have been no justifiable military 
objective pursued in any of them. The first two incidents concern alleged attacks by Israeli 
armed forces against houses in the al-Samouni neighbourhood of Gaza during the initial phase of 
the ground invasion. The following group of seven incidents concern the alleged shooting of 
civilians who 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 armed forces to do so. In the last of 
these seven cases, a house was allegedly shelled with white phosphorous, killing five and 
injuring others. Two further members of the family were allegedly shot by Israeli troops as they 
tried to evacuate the wounded to a hospital. In the following incident, a mosque was targeted 
during the early evening prayer, resulting in the death of 15. In many of the incidents, the Israeli 
armed forces allegedly obstructed emergency medical help to the wounded. A further incident 
concerns the bombing of a family house, killing 22 family members. In the last of the incidents 
described, a crowd of family and neighbours at a condolence tent was attacked with flechettes. 

A. Attacks on the houses of Ateya al-Samouni and Wa'el al-Samouni in Zeytoun, 
resulting in the death of 23 members of the al-Samouni family 



706. To investigate the attacks on the houses of Ateya and Wa'el al-Samouni, which killed 



394 



23 members of the extended al-Samouni family, the Mission visited the site of the incidents. It 



395 



interviewed five members of the al-Samouni family and several of their neighbours on site. 
Two members of the extended al-Samouni family, who were eyewitnesses to the incident, 
Messrs. Wa'el and Saleh al-Samouni, testified at the public hearing in Gaza. The Mission also 
interviewed PRCS ambulance drivers who went to the area on 4, 7 and 18 January 2009, and 
obtained copies of PRCS records. The Mission finally reviewed material on this incident 
submitted to it by TAWTHEQ as well as by NGOs. 

707. The so-called al-Samouni area is part of Zeytoun, south of Gaza City, bordered to the east 
by al-Sekka Street, which in that part of Gaza runs parallel and very close to Salah ad-Din Street. 
It is inhabited by members of the extended al-Samouni family, which gives its name to the area, 
as well as by other families, such as the Arafats and the Hajjis. Al-Samouni area is more rural 
than urban, houses used to stand next to small olive and fig groves, chicken coops and other 
small plots of agricultural land. A small mosque stood in the centre of the neighbourhood. These 
no longer existed at the time of the Mission's visit in June 2009. The Mission saw very few 



393 "The operation in Gaza... ", para. 222. 



394 Graffiti left by Israeli soldiers in the house of Talal al-Samouni, which were photographed by the Mission, 
included (a) in Hebrew, under the Star of David: "The Jewish people are alive" and, above a capital "T" [referring to 
the army (Tsahal)], "This [the letter T] was written with blood"; (b) on a drawing of a grave, in English and Arabic, 
"Arabs 1948-2008 "; and (c) in English: "You can run but you can not hide", "Die you all", " 1 is down, 999,999 to 
go", "Arabs need to die" and "Make war not peace". 

395 Testimony to the Mission by Saleh al-Samouni, Talal al-Samouni, Wa'el Faris al-Samouni, Muhammad Asaad 
al-Samouni, Ms. Massouda Sobhia al-Samouni, Mr. Faraj Ata al-Samouni, Mrs. Abir Muhammad Hajji and 

Mr. Fawzi Arafat, 3 June 2009. 



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buildings left and a few tents standing amidst the rubble of collapsed houses and bulldozed 
land. 396 

708. The Israeli ground offensive from the east reached al-Samouni neighbourhood around 

4 a.m. on 4 January 2009. In addition to the ground forces moving in from the east, there were, 
in all likelihood, heliborne 397 troops that landed on the roofs of several houses in the area. 
Residents told the Mission that there was shooting in the neighbourhood in the night of 3 to 
4 January and again the following night, but denied having seen any Palestinian fighters. 

1. The killing of Ateya al-Samouni and his son Ahmad 

709. During the morning of 4 January 2009, Israeli soldiers entered many of the houses in 
al-Samouni area. One of the first, around 5 a.m., was the house of Ateya Helmi al-Samouni, a 
45-year-old man. Faraj, his 22-year-old son, had already met Israeli soldiers some minutes 
earlier as he stepped outside the house to warn his neighbours that their roof was burning. The 
soldiers entered Ateya al-Samouni' s house by force, throwing some explosive device, possibly a 
grenade. In the midst of the smoke, fire and loud noise, Ateya al-Samouni stepped forward, his 
arms raised, and declared that he was the owner of the house. The soldiers shot him while he was 
still holding his ID and an Israeli driving licence in his hands. The soldiers then opened gunfire 
inside the room in which all the approximately 20 family members were gathered. Several were 
injured, Ahmad, a boy of four, particularly seriously. Soldiers with night vision equipment 
entered the room and closely inspected each of those present. The soldiers then moved to the 
next room and set fire to it. The smoke from that room soon started to suffocate the family. A 
witness speaking to the Mission recalled seeing "white stuff coming out of the mouth of his 
17-month-old nephew and helping him to breathe. 

710. At about 6.30 a.m. the soldiers ordered the family to leave the house. They had to leave 
Ateya' s body behind but were carrying Ahmad, who was still breathing. The family tried to enter 
the house of an uncle next door, but were not allowed to do so by the soldiers. The soldiers told 
them to take the road and leave the area, but a few metres further a different group of soldiers 
stopped them and ordered the men to undress completely. Faraj al-Samouni, who was carrying 
the severely injured Ahmad, pleaded with them to be allowed to take the injured to Gaza. The 
soldiers allegedly replied using abusive language. They also said "You are bad Arabs". "You go 
toNitzarim". 

711. Faraj al-Samouni, his mother and others entered the house of an uncle in the 
neighbourhood. From there, they called PRCS. As described below, at around 4 p.m. that day 
a PRCS ambulance managed to come in the vicinity of the house where Ahmad was lying 
wounded, but was prevented by the Israeli armed forces from rescuing him. Ahmad died at 



396 The UNOSAT report (p. 21) counts "1 14 ... destroyed or severely damaged buildings, ... 27 damaged 
greenhouse complexes, and 17 impact craters along roads or in cultivated fields" in the area of al-Samouni Street. 
A soldier stationed in Zeytoun during the military operations recalled that he observed through his binoculars 
"increasing devastation. Houses that disappear with time, farm land ploughed over time." {Soldiers ' testimonies... , 
testimony 37, p. 82). 

397 One witness told the Mission that on 5 January 2009, walking on Salah ad-Din Street towards Gaza, he saw by 
the roadside parachutes Israeli troops had used to land in the area. 



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around 2 a.m. during the night of 4 to 5 January. 398 The following morning those present in the 
house, about 45 persons, decided to leave. They made themselves white flags and walked in the 
direction of Salah ad-Din Street. A group of soldiers on the street told them to go back to the 
house, but the witness said that they walked on in the direction of Gaza. The soldiers shot at their 
feet, without injuring anyone, however. Two kilometres further north on Salah ad-Din Street, 
they found ambulances which took the injured to al-Shifa hospital in Gaza. 

2. The attack on the house of Wa'el al-Samouni 

712. In other cases, the entry of soldiers was less violent than in Ateya al-Samouni's home. In 
one instance, the soldiers landed on the roof and descended the stairs to the ground floor, 
separated men from women, searched and handcuffed the men. 399 In another case they broke into 
a house by knocking a hole in the wall with a sledgehammer. 400 At the house of Saleh al- 
Samouni, the Israeli soldiers knocked on the door and ordered those inside to open it. All the 
persons inside the house stepped out one by one and Saleh' s father identified each of the family 
members in Hebrew for the soldiers. According to Saleh al-Samouni, they asked to be allowed to 
go to Gaza City, but the soldiers refused and instead ordered them to go to Wa'el al-Samouni's 
house across the street. 

713. The Israeli soldiers also ordered those in other houses to move to Wa'el al-Samouni's 
house. As a result, around 100 members of the extended al-Samouni family, the majority women 
and children, were assembled in that house by noon on 4 January. There was hardly any water 
and no milk for the babies. Around 5 p.m. on 4 January, one of the women went outside to fetch 
firewood. There was some flour in the house and she made bread, one piece for each of those 
present. 

714. In the morning of 5 January 2009, around 6.30 - 7 a.m., Wa'el al-Samouni, Saleh al- 
Samouni, Hamdi Maher al-Samouni, Muhammad Ibrahim al-Samouni and Iyad al-Samouni, 
stepped outside the house to collect firewood. Rashad Helmi al-Samouni remained standing next 
to the door of the house. Saleh al-Samouni has pointed out to the Mission that from where the 
Israeli soldiers were positioned on the roofs of the houses they could see the men clearly. 
Suddenly, a projectile struck next to the five men, close to the door of Wa'el 's house and killed 
Muhammad Ibrahim al-Samouni and, probably, Hamdi Maher al-Samouni. 401 The other men 
managed to retreat to the house. Within about five minutes, two or three more projectiles had 
struck the house directly. Saleh and Wa'el al-Samouni stated at the public hearing that these 
were missiles launched from Apache helicopters. The Mission has not been able to determine the 
type of munition used. 



398 Faraj al-Samouni also told the Mission that, at the time of Ahmad's death, another relative gave birth to a baby in 
the same house. The following day the mother, who had to be transported in a wheelchair because she had broken 
her leg doing household chores, and the baby were among the group that managed to evacuate to Gaza City. Mother 
and child are in good health. 

399 Testimony of Muhammad Asaad al-Samouni, 3 June 2009. 

400 Testimony of Saleh al-Samouni, 3 June 2009. 

401 The Mission notes that while all testimonies agree that Muhammad Ibrahim al-Samouni died on the spot, there 
are some discrepancies as to whether Hamdi Maher al-Samouni was killed by the first strike or died subsequently 
inside the house. 



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715. Sal eh al-Samouni stated that overall 21 family members were killed and 19 injured in the 
attack on Wa'el al-Samouni's house. The dead include Saleh al-Samouni's father, Talal Helmi 
al-Samouni, his mother, Rahma Muhammad al-Samouni, and his two-year-old daughter Azza. 
Three of his sons, aged five, three and less than one year (Mahmoud, Omar and Ahmad), were 
injured, but survived. Of Wa'el' s immediate family, a daughter and a son (Rezqa, 14, and Fares, 
12) were killed, while two smaller children (Abdullah and Muhammad) were injured. 402 The 
photographs of all the dead victims were shown to the Mission at the home of the al-Samouni 
family and displayed at the public hearing in Gaza. 

716. After the shelling of Wa'el al-Samouni's house, most of those inside decided to leave 
immediately and walk to Gaza City, leaving behind the dead and some of the wounded. The 
women waved their scarves. Soldiers, however, ordered the al-Samounis to return to the house. 
When family members replied that there were many injured among them, the soldiers' reaction 
was, according to Saleh al-Samouni, "go back to death". They decided not to follow this 
injunction and walked in the direction of Gaza City. Once in Gaza, they went to PRCS and told 
them about the injured that had remained behind. 

3. The attempts of PRCS and ICRC to rescue the civilians 
in the al-Samouni area 

717. PRCS had made its first attempt to evacuate the injured from the al-Samouni area on 4 
January 2009 around 4 p.m. after receiving a call from the family of Ateya al-Samouni. PRCS 
had called ICRC, asking it to coordinate its entry into the area with the Israeli armed forces. A 
PRCS ambulance from al-Quds hospital managed to reach the al-Samouni area. The ambulance 
had turned west off Salah ad-Din Street when, at one of the first houses in the area, Israeli 
soldiers on the ground and on the roof of one of the houses directed their guns at it and ordered it 
to stop. The driver and the nurse were ordered to get out of the vehicle, raise their hands, take off 
their clothes and lie on the ground. Israeli soldiers then searched them and the vehicle for 5 to 

10 minutes. Having found nothing, the soldiers ordered the ambulance team to return to Gaza 
City, in spite of their pleas to be allowed to pick up some wounded. In his statement to the 
Mission, the ambulance driver recalled seeing women and children huddling under the staircase 
in a house, but not being allowed to take them with him. 403 

718. As soon as the first evacuees from the al-Samouni family arrived in Gaza City on 

5 January, PRCS and ICRC requested permission from the Israeli armed forces to go into the 
al Samouni neighbourhood to evacuate the wounded. These requests were denied. On 6 January 
around 6.45 p.m., one ICRC car and four PRCS ambulances drove towards the al-Samouni area 



402 The names of the other 15 members of the extended al-Samouni family killed in the attack on Wa'el al- 
Samouni's house are: Rabab Izaat (female, aged 37); Tawfiq Rashad (male, aged 22); Layla Nabeeh (female, aged 
44); Ismaeil Ibrahim (male, aged 16); Ishaq Ibrahim (male, aged 14); Maha Muhammad (female, aged 20); 
Muhammad Hilmi Talal (the six -year-old son of Maha); Hanan Khamis Sa'di (female, aged 36); Huda Naiel 
(female, aged 17); Rezqa Muhammad Mahmoud (female, aged 56); Safaa Sobhi (female, aged 24); al-Moa'tasim 
Bilah Muhammad (male, aged six months); Hamdi Maher (male, aged 24); Rashad Helmi (male, aged 42); Nassar 
Ibrahim Hilmi (male, aged 6). 

403 Mission interview with PRCS driver W2, 10 June 2009. 



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in spite of the lack of coordination with the Israeli armed forces, but were not allowed to enter 
the area and evacuate the wounded. 

719. On 7 January 2009, the Israeli armed forces finally authorized ICRC and PRCS to go to 
the al-Samouni area during the "temporary ceasefire" declared from 1 to 4 p.m. on that day. 404 
Three PRCS ambulances, an ICRC car and another car used to transport bodies drove down 
Salah ad-Din Street from Gaza City until, 1.5 km north of the al-Samouni area, they found it 
closed by sand mounds. ICRC tried to coordinate with the Israeli armed forces to have the road 
opened, but they refused and asked the ambulance staff to walk the remaining 1.5 km. 

720. Once in the al-Samouni neighbourhood, PRCS looked for survivors in the houses. An 
ambulance driver who was part of the team told the Mission that in Wa'el al-Samouni's house 
they found 15 dead bodies and two seriously injured children. 405 One of the children had a deep 
wound in the shoulder, which was infected and giving off a foul odour. The children were 
dehydrated and scared of the PRCS staff member. In a house close by, they found 1 1 persons in 
one room, including a dead woman. 

721 . The rescue teams had only three hours for the entire operation and the evacuees were 
physically weak and emotionally very unstable. The road had been damaged by the impact of 
shells and the movement of Israeli armed forces, including tanks and bulldozers. The rescuers 
put all the elderly on a cart and pulled it themselves for 1.5 kilometres to the place where they 
had been forced to leave the ambulances. The dead bodies lying in the street or under the rubble, 
among them women and children, as well as the dead they had found in the houses had to be left 
behind. On the way back to the cars, PRCS staff entered one house where they found a man with 
two broken legs. While they were carrying the man out of the house, the Israeli armed forces 
started firing at the house, probably to warn that the three-hour "temporary ceasefire" were about 
to expire. PRCS was not able to return to the area until 18 January. 

722. On 18 January 2009, members of the al-Samouni family were finally able to return to their 
neighbourhood. They found that Wa'el al-Samouni's house, as most other houses in the 
neighbourhood and the small mosque, had been demolished. The Israeli armed forces had 
destroyed the building on top of the bodies of those who died in the attack. Pictures taken on 

18 January show feet and legs sticking out from under the rubble and sand, and rescuers pulling 
out the bodies of women, men and children. A witness described to the Mission family members 
taking away the corpses on horse carts, a young man sitting in shock beside the ruins of his 
house and, above all, the extremely strong smell of death. 406 

4. Factual findings 

723. The Mission found the foregoing witnesses to be credible and reliable. It has no reason to 
doubt their testimony. 



404 Mission interview with PRCS driver Wl, 10 June 2009. 

405 Ibid. 

406 Mission interview with witness W2, 7 June 2009. 



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724. With regard to the context in which the attacks on the houses of Ateya al-Samouni and 
Wa'el al-Samouni took place, the Mission notes that there is some indication that there might 
have been a presence of Palestinian combatants in the al-Samouni neighbourhood during the first 
hours of the Israeli ground attack. A witness told the Mission that when he heard the first shots in 
the vicinity of his house in the night of 3 to 4 January, he at first thought it was Palestinian 
fighters. An NGO report submitted to the Mission states that a Palestinian combatant, reportedly 
a member of the Islamic Jihad, was killed in the al-Samouni area around midnight between 3 and 
4 January. 407 

725. The Mission considers, however, that the testimonies of the witnesses strongly suggest 
that already before daybreak on 4 January 2009 the Israeli armed forces were in full control of 
the al-Samouni neighbourhood. The Israeli soldiers had taken up position on the roofs of the 
houses in the area. According to several witnesses, the soldiers on the street spoke to residents 
who had ventured out of their houses. 408 In some cases (for instance, at the house of Sal eh 
al-Samouni and at the house Iyad al-Samouni was in, see below), they entered the houses 
non-violently after knocking on the door. According to Saleh al-Samouni, the prolonged 
identification of all the persons present in his house (his father identifying each family member 
in Hebrew for the soldiers) took place outside. The soldiers appear to have been confident that 
they were not at immediate risk of being attacked. 

726. The Mission also reviewed the submission it received from an Israeli researcher, arguing 
generally that statements from Palestinian residents claiming that no fighting took place in their 
neighbourhood are disproved by the accounts Palestinian armed groups give of the armed 
operations. The Mission notes that, as far as the al-Samouni neighbourhood is concerned, this 
report would appear to support the statements of the witnesses that there was no combat. 409 

727. Regarding the attack on Ateya al-Samouni's house, the Mission finds that the account 
given to it by Faraj al-Samouni is corroborated by the soldiers' testimonies published by the 
Israeli NGO Breaking the Silence. The assault on Ateya al-Samouni's house appears to be the 
procedure of the Israeli armed forces referred to as a "wet entry". A "wet entry" is, according to 
the soldier's explanation, "missiles, tank fire, machine-gun fire into the house, grenades. Shoot 
as we enter a room. The idea was that when we enter a house, no one there could fire at us." This 
procedure was, according to the soldier, thoroughly practised during recent Israeli armed forces 

410 

manoeuvres. 

728. The Mission notes that considering the generally calm circumstances that appear to have 
prevailed in the al-Samouni neighbourhood at the time (as evidenced by the way the soldiers 



407 Al Mezan's table of children killed during the military operations in Gaza. 

408 Testimonies of Saleh al-Samouni and Faraj al-Samouni. 

409 "jjjg bidden dimension of Palestinian war casualties... ". Only 4 of the more than 100 entries in the submission 
refer to combat action in Zeytoun, the much larger part of Gaza City of which al-Samouni neighbourhood is a part. 
The incidents in Zeytoun that are mentioned reportedly occurred on 6,7, 11 and 1 3 January 2009, and consist of 
Palestinian combatants opening fire against Israeli troops with rocket-propelled grenades, a mortar (in one case) and 
detonating an explosive device. 

410 Soldiers ' Testimonies... , testimony 4, p. 14; see also testimony 37, p. 82. 



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entered other houses after knocking on the door) and the fact that the soldiers had already spoken 
to Faraj al-Samouni, one of the persons in Ateya al-Samouni's house, the Mission cannot see any 
circumstance justifying the violent entry into the house. 

729. With regard to the attack on the five men who stepped out of Wa'el al-Samouni's house to 
fetch firewood in the early morning of 5 January 2009 and to the subsequent shelling of the 
house, the Mission notes that the members of the other families who had been moved by the 
Israeli forces into Wa'el al-Samouni's house had been searched by Israeli soldiers, as recounted 
by Saleh al-Samouni. Everything indicates that the Israeli forces knew that there were about 

100 civilians in the house. Indeed, the families had asked to be allowed to leave the area towards 
a safer place, but had been ordered to stay in Wa'el al-Samouni's house. The house must have 
been under constant observation by the Israeli soldiers, who had complete control over the area 
at the time. 

730. The Mission was not able to determine whether the attack was carried out by missiles 
launched from Apache helicopters, as Saleh and Wa'el al-Samouni told the Mission at the public 
hearing in Gaza, or by other munitions. Nevertheless, the fact that a first projectile struck next to 
the five men soon after they had left the house (at a time at which there was no combat in the 
area) and two or three projectiles struck the house after the survivors had retreated into the 
house, indicates that the weaponry used allowed a high degree of precision with a short response 
time and that the five men and then the house were the intended targets of the attack. 

73 1 . The Mission notes that, four days later, the Israeli armed forces denied that the attack on 
the house of Wa'el al-Samouni had taken place. On 9 January 2009, an Israeli army spokesman, 
Jacob Dallal, reportedly told the Reuters news agency that "the IDF did not mass people into any 
specific building. [...] Furthermore, we checked with regard to IDF fire on the 5th. The IDF did 
not target any building in or near Zeitun on the 5th." 411 The Mission is not aware of any 
subsequent statement from the Israeli Government which would contradict this blanket denial or 
suggest that the allegations have been the subject of further investigation. 

732. With regard to the obstruction of emergency medical access to the wounded in the 
al-Samouni neighbourhood, the Mission notes that four-year-old Ahmad al-Samouni was still 
alive at 4 p.m. on 4 January 2009, when the PRCS ambulance called by his relatives managed to 
arrive within what the Mission estimates to be 100 to 200 metres from the house where he was. 
In fact, he died about 10 hours later, which suggests that he might have had a good chance of 
survival. Israeli soldiers stopped the ambulance and thoroughly searched the driver, nurse and 
vehicle. 412 Although they did not find anything indicating that the ambulance staff was not on a 
genuine emergency mission to evacuate a wounded civilian, they forced the ambulance to return 
to Gaza City without the injured Ahmad. 

733. On 5 and 6 January 2009, following the arrival in Gaza City hospitals of survivors of the 
attack on Wa'el al-Samouni's house, PRCS and ICRC requested permission from the Israeli 



411 http://www.iavno.com/en-world/gaza-boy-recounts-house-of-death 22245 1 . 

412 In addition to searching the ambulance driver and the nurse, the Israeli soldiers also appear to have intended to 
humiliate them by forcing them to lie down on the street in their underwear for 5 to 10 minutes, in the cold of an 
early January late afternoon. 



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armed forces to go into the al-Samouni neighbourhood to evacuate the wounded. These requests 
were denied. According to the information available to PRCS, the Israeli armed forces told ICRC 
that there were combat operations going on in the area. A PRCS ambulance driver who was part 
of the PRCS convoy which went to the area in spite of the refusal of the Israeli armed forces to 
grant permission, reported that there were no clashes at the time. 413 PRCS and ICRC were not 
able to evacuate the wounded from the area until 7 January in the afternoon. 

734. The information before it leads the Mission to believe that the Israeli armed forces 
arbitrarily prevented the evacuation of the wounded from the al-Samouni area, thereby causing at 
least one additional death, worsening of the injuries in others, and severe psychological trauma 
in at least some of the victims, particularly children. 

735. These findings are corroborated by the press release ICRC issued on 8 January 2008: 

The ICRC had requested safe passage for ambulances to access this neighbourhood 
[the al-Samouni area in Zeytoun] since 3 January but it only received permission to do so 
from the Israel Defense Forces during the afternoon of 7 January. 

The ICRC/PRCS team found four small children next to their dead mothers in one 
of the houses. They were too weak to stand up on their own. One man was also found 
alive, too weak to stand up. In all there were at least 12 corpses lying on mattresses. 

In another house, the ICRC/PRCS rescue team found 15 other survivors of this 
attack including several wounded. In yet another house, they found an additional three 
corpses. Israeli soldiers posted at a military position some 80 metres away from this house 
ordered the rescue team to leave the area which they refused to do. There were several 
other positions of the Israel Defense Forces nearby as well as two tanks. 414 

B. Killing of civilians attempting to leave their homes to walk to safer areas 

1. The shooting of Iyad al-Samouni 

736. The Mission received testimony on the death of Iyad al-Samouni from Muhammad Asaad 
al-Samouni and Fawzi Arafat, as well as from a PRCS staff member. In the night of 3 to 

4 January 2009, Iyad al-Samouni, his wife and five children were, together with about 40 other 
members of their extended family in Asaad al-Samouni' s house, very close to the houses of 
Wa'el al-Samouni and Ateya al-Samouni (the scenes of the incidents described above). At 1 a.m. 
on 4 January 2009 they heard noise on the roof. At around 5 a.m. Israeli soldiers walked down 
the stairs from the roof, knocked on the door and entered the house. They asked for Hamas 
fighters. The residents replied that there were none. The soldiers then separated women, children 
and the elderly from the men. The men were forced into a separate room, blindfolded and 
handcuffed with plastic handcuffs. They were allowed to go to the toilet only after one of the 
men urinated on himself. The soldiers stationed themselves in the house. 



413 PRCS records at al-Quds hospital. 



414 http://www.icrc.org/web/eng/siteeng0.nsf/html/palestine-news-080109 . 



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737. In the morning of 5 January 2009, after the shelling of Wa'el al-Samouni's house, two of 
the survivors took refuge in Asaad al-Samouni's house. From the testimonies received, the 
Mission is not able to state whether the Israeli soldiers then ordered the al-Samouni family 
members in the house to leave and walk to Gaza City, or whether it was the families who 
pleaded with the soldiers to be allowed to leave having heard the appalling news of what had 
happened to their relatives in Wa'el al-Samouni's house. In any event, the persons assembled in 
Asaad al-Samouni's house walked out of the house and down al-Samouni Street to take Salah 
ad-Din Street in the direction of Gaza City. They had been instructed by the soldiers to walk 
directly to Gaza City without stopping or diverting from the direct route. The men were still 
handcuffed and the soldiers had told them that they would be shot if they attempted to remove 
the handcuffs. 

738. On Salah ad-Din Street, just a few metres north of al-Samouni Street and in front of the 
Juha family house, 415 a single or several of the Israeli soldiers positioned on the roofs of the 
houses opened fire. Iyad was struck in the leg and fell to the ground. 416 Muhammad Asaad 
al-Samouni, who was walking immediately behind him, moved to help him, but an Israeli soldier 
on a rooftop ordered him to walk on. When he saw the red point of a laser beam on his body and 
understood that an Israeli soldier had taken aim at him, he desisted. The Israeli soldiers also fired 
warning shots at Muhammad Asaad al-Samouni's father to prevent him from assisting Iyad to 
get back on his feet. Iyad al-Samouni's wife and children were prevented from helping him by 
further warning shots. Fawzi Arafat, who was part of another group walking from the 
al-Samouni neighbourhood to Gaza, told the Mission that he saw Iyad al-Samouni lying on the 
ground, his hands shackled with white plastic handcuffs, blood pouring from the wounds in his 
legs, begging for help. Fawzi Arafat stated that he yelled at an Israeli soldier "we want to 
evacuate the wounded man". The soldier, however, pointed his gun at Iyad' s wife and children 
and ordered them to move on without him. 

739. Iyad al-Samouni's family and relatives were forced to abandon him and continue to walk 
towards Gaza City. At al-Shifa hospital they reported his case and those of the other dead and 
wounded left behind. Representatives of PRCS told them that the Israeli armed forces were not 
permitting them to access the area. 

740. A PRCS staff member 417 told the Mission that three days later, on 8 January 2009, PRCS 
was granted permission by the Israeli armed forces through ICRC to evacuate Iyad al-Samouni. 
The PRCS staff member found him on the ground in Salah ad-Din Street in the place described 
by his relatives. He was still handcuffed. He had been shot in both legs and had bled to death. 



415 This is the home of the family of Mu'een Juha, see the case of the shooting of Ibrahim Juha discussed below in 
the chapter. 

416 According to the researchers of a Palestinian NGO who investigated this case, the mobile phone in the pocket of 
the cousin walking in front of Iyad al-Samouni rang and Iyad al-Samouni tried to take the phone out of his pocket 
(the cousin's hands were tied as well, so he could not reach into his pocket himself), whereupon the Israeli soldier 
opened fire. This detail was not mentioned to the Mission in its interviews. 

417 Mission interview with PRCS driver W4, 10 June 2009. 



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Factual findings 



74 1 . The Mission found the witnesses it heard in relation to the shooting of Iyad al-Samouni 
to be credible and reliable. It has no reason to doubt the veracity of the main elements of their 
testimony, which is corroborated by the testimony of the PRCS ambulance driver. 

742. The Mission finds that Iyad al-Samouni was part of a large group of civilians who were 
leaving their homes and walking towards Gaza City in an area under the complete control of the 
Israeli armed forces. His hands were tied with white plastic handcuffs. The soldier who opened 
fire on him should have known, on the basis of the plastic handcuffs if not of coordination with 
his fellow soldiers stationed in Asaad al-Samouni' s house a few hundred metres away, that he 
had been searched and detained by the Israeli armed forces. In opening fire on Iyad al-Samouni, 
the Israeli armed forces shot deliberately at a civilian who posed no threat to them. 

743. While the fire directed at Iyad al-Samouni could have been intended to incapacitate rather 
than to kill, by threatening his family members and friends with lethal fire, the Israeli armed 
forces ensured that he did not receive lifesaving medical help. They deliberately let him bleed to 
death. 

744. The Mission found that the witnesses who spoke about the death of Iyad al-Samouni 
appeared to be profoundly traumatized by the recollection of his pleading for help from his wife, 
children and relatives. They also recalled the helplessness of his family, who were under a very 
credible threat of being shot themselves if they came to his help, and who were compelled to 
abandon him on the road to bleed to death. 

3. The death of Muhammad Hajji in the attack on his family's house 
and the shooting of Shahd Hajji and Ola Masood Arafat 

745. The Mission interviewed Mrs. Abir Hajji in private and received her testimony at the 
public hearing in Gaza. 

746. In the night of 4 to 5 January 2009, the family of Muhammad Hajji and his wife Abir 418 
was at home in the al-Samouni neighbourhood. In the hope of being safer from the shooting, 
they had put their mattresses on the floor. At around 1.30 a.m., Abir Hajji heard a very loud 
explosion, which shook the house and shattered the windows. Some minutes later, Abir Hajji 
was in a different room from the rest of the family, looking for her mobile phone to use as a 
torch, when she heard a second explosion, this time apparently inside the house. The children 
screamed, shouted "Dad!", but her husband did not reply. In the pitch-darkness she found her 
husband and felt that he was injured on one side of his head, in the area of the eye and the ear. 
Her daughters Noor, aged 6, and Nagham, aged 13, were injured. 

747. She called her neighbour and brother-in-law, Nasser Hajji, who examined his brother 
and told her that he was dead. As they were preparing to move to Nasser Hajji' s house, Israeli 
soldiers broke into the house shooting. The soldiers asked Nasser Hajji whether he "was 



418 Muhammad and Abir Hajji had five children, four daughters, Ghada (aged 16), Nagham (aged 13), Noor al-Huda 
(aged 6) and Shahd (aged 3), and a son, Amin (aged 11). 



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Hamas", which he denied assuring them that nobody in the area was a member of either Hamas 
or Fatah. Mrs. Hajji remembers the soldiers laughing and insisting that Nasser Hajji "was 
Hamas". The laughing added to her pain, as the soldiers had seen her dead husband and the 
children. Nasser Hajji was ordered to undress and then pull his brother's body to another room, 
where the soldiers threw mattresses and blankets on the body (the body was still lying in the 
same position when Abir Hajji returned to her home two weeks later). Her children asked her 
whether they would be killed as well. She told them to say the Shehada, the prayer recited in the 
face of death. Mrs. Hajji also recalled that the soldiers were breaking the tiles on the floor of the 
house and digging in the earth below. Asked about this at the public hearing, she expressed the 
opinion that this was to obtain sand for the sandbags they subsequently placed on the roof of the 
house. 419 

748. After some time, during which they were sitting on the ground as ordered by the Israeli 
soldiers, Mrs. Hajji, her children and Nasser Hajji were taken to Nasser's house. There they 
found four households of the extended Hajji family. The young men had been handcuffed and 
four of them also blindfolded. About 60 Israeli soldiers were in the house. Mrs. Hajji recalled 
them carrying around food and drinks and relaxing in the couches. One of her daughters asked to 
be allowed to eat something. The soldiers first denied her request, but then allowed her to go into 
the kitchen and get a small piece of bread. 

749. After the midday prayers on 5 January 2009, the Israeli soldiers separated the men from 
the women and children. The latter were ordered to walk to Rafah. The Hajjis protested, asking 
to be allowed to go to Gaza City, where they had relatives, but the soldiers told them that they 
would be shot if they tried to walk to Gaza City. Nasser Hajji and his 18-year-old son were 
allowed to walk with the women and children, while the other men stayed behind. 420 

750. The group of Hajji family members walked down the alley to al-Sekka Street. There they 
were joined by members of the Arafat family, who also live in the al-Samouni neighbourhood, 
carrying white flags. On al-Sekka Street, one of the Israeli soldiers standing on a rooftop ordered 
the families to turn south and walk towards Rafah. The families begged to be allowed to walk to 
Gaza City instead. Without warning, the Israeli soldiers opened fire, "shooting at random" 
according to Abir Hajji. Ola Masood Arafat, a 28-year-old woman, was struck by a bullet and 
died on the spot. Mrs. Hajji was wounded in her right arm. Her three-year-old daughter Shahd 
was shot in the chest. Abir Hajji, who was still carrying Shahd, her other children, her mother-in- 
law and others managed to take refuge in a house. There they found out that Shahd was still 
alive. 

75 1 . Later on, they left the house and walked together with other families to Salah ad-Din 
Street and then south on that road. When they reached the Gaza wadi, a motorist took Abir Hajji 
and her daughter Shahd to a hospital in Deir al-Balah. Shahd died of her wound very soon after 



419 Soldiers ' Testimonies... suggests that breaking the tiles in civilian homes was a standard practice with two 
purposes: to fill sandbags ( "Take for example the house we were in - it was abandoned and you go about it as if 
you own it. You break floor tiles to make sandbags, you break stuff to prepare an outpost", testimony 46, p. 100,) 
and to search for tunnels ("You're also told to wreck the floor tiles to check for tunnels", testimony 23, p. 54) 

420 Abir Hajji learned after the armed operations that they had been detained in that house for another three days and 
then released. 



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arriving at the hospital. Abir Hajji, who was two months pregnant at the time, also suffered a 
miscarriage. 

4. Factual findings 

752. The Mission found Mrs. Hajji to be a credible and reliable witness. It has no reason to 
doubt the veracity of her testimony. The Mission also notes that according to the testimony of 
four other witnesses (those it heard in the case of Ibrahim Juha below), a very similar incident 
occurred in the immediate vicinity on the same day. 

753. With regard to the death of Muhammad Hajji, the Mission notes that Mrs. Hajji's 
testimony does not provide sufficient information to establish exactly what happened. On the 
basis of the information before it, the Mission can neither make a statement as to what type 
of weapon killed him, nor as to whether he was the intended target of a direct attack. The 
circumstances of his death suggest, however, that he was killed by fire from the Israeli armed 
forces while at home in a room with his children. 

754. As to the fatal shooting of Shahd Hajji and Ola Masood Arafat, Mrs. Hajji's testimony as 
well as that of Mr. Mu'een Juha and Mrs. Juha, the parents of Ibrahim Juha, of Mr. Sam eh 
Sawafeary and of Mr. Rajab Darwish Mughrabi (see the case of Ibrahim Juha below) all 
establish that there were no combat operations in the area at the time of the incident. Indeed, the 
Israeli armed forces would not have ordered the members of the extended Hajji, Arafat, Juha and 
Sawafeary families to walk to Rafah, thereby asking hundreds of civilians to come out of their 
houses and fill the streets, if there had been any fighting in the neighbourhood at the time. The 
Israeli armed forces opened fire on a group of persons they had interacted with during the 
preceding 12 hours and therefore knew to be civilians. In doing so they killed Ola Masood Arafat 
and three-year-old Shahd Hajji and injured her mother, who was holding her in her arms. 

5. The shooting of Ibrahim Juha 

755. The Mission interviewed three eyewitnesses to the shooting of Ibrahim Juha and a further 
witness of the events surrounding the shooting. 421 The events preceding and following the 
shooting of Ibrahim Juha are described in greater detail in chapter XIII below in connection with 
the destruction of the Sawafeary chicken farms. 

756. The Juha family lives in a house on al-Sekka Street a few meters north of where al- 
Samouni Street goes off Salah ad-Din Street to the west. The house was struck by several 
missiles during the night of 3 to 4 January 2009, which had caused significant destruction. In the 
early morning of 4 January, Israeli soldiers entered the house and fired into the room where the 
Juha family, consisting of Mr. Juha, his two wives, his mother and 13 children, was assembled. 
Photographs of the scene taken by Mr. Juha show that numerous rounds were discharged. The 
family was made to assemble in the upper part of the house. They were then ordered to leave the 
house and walk towards Rafah. 



421 Mr. Mu'een Juha and Mrs. Juha, the parents of Ibrahim, Mr. Sameh Sawafeary and Mr. Mughrabi. 



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757. The Juha family and their neighbours, the Sawafeary family, walked down al-Sekka Street 
for 100 metres in the direction of Rafah. When they reached the house of another neighbour, 
Mr. Abu Zur, they were invited into that house and decided to stay there. The three families 
spent 4 January in the house. On the morning of 5 January the house was the subject of intense 
firing from Israeli troops in the vicinity. After some time Israeli soldiers approached the house 
and ordered everyone to come out. The men were separated from the women. From the group of 
men four were separated and required to strip to their underwear. They were held in a house 
opposite the Abu Zur house, belonging to Mr. Sub hi al-Samouni. The remaining group was told 
once again to leave the area and walk towards Rafah. Mr. Juha recounts that walking down 

al Sekka Street the group came to a point where a large crater blocked the way ahead and the 
surrounding rubble provided a difficult obstacle for some members of his family, including his 
ageing mother, who had fainted shortly before outside the Abu Zur house. 

758. In the face of these obstacles the group of three families walked east towards Salah ad-Din 
Street. There they entered the house of another family, the Mughrabis. With the arrival of the 
Juha, Sawafeary and Abu Zur families, there were now more than 70 persons assembled in the 
house. 

759. Mr. Juha told the Mission that, after taking a little rest in the Mughrabi house, he came to 
the view that it was impossible for them all to stay there, given their substantial numbers and the 
earlier experience of the intense firing at the Abu Zur house. He decided that they should seek to 
go back into the street and move to another place. Mr. Mughrabi strongly advised against this. 

760. The Juha, Abu Zur and Sawafeary families went back into the street in the afternoon of 
5 January. Mr. Juha had his mother in front of him propped up on a two-wheeled trolley as she 
was unable to walk. Mr. Sawafeary was near to him at the front of the group. Behind him, 
towards the middle of the group, was his 15-year-old son, Ibrahim, carrying a white flag. 

Mr. Juha believes he heard two shots. One of the shots hit his son in the chest. The group 
immediately sought cover once again in the Mughrabi house. They tried to care for Ibrahim in 
the workshop at the front of the house. His mother tried to sew the wound with a needle and 
thread and sterilize the materials with eau de cologne. Ibrahim died some six hours after he was 
shot. 

761 . The group of over 70 persons remained in the house until 8 January in the afternoon, 
when ICRC and PRCS representatives came to the neighbourhood and they managed to leave the 
area and walk to Gaza City. 

6. Factual findings 

762. The Mission found the witnesses of the shooting of Ibrahim Juha to be credible and 
reliable. It has no reason to doubt the veracity of their testimony. 

763. The testimonies of Mr. Mu'een Juha and Mrs. Juha, Mr. Sameh Sawafeary and Mr. Rajab 
Darwish Mughrabi, as well as of Mrs. Abir Hajji, all establish that there were no combat 
operations in the area at the time of the incident. The Israeli armed forces had attacked 

Mr. Juha's house and that of Mr. Abu Zur, where the Juhas and other families had taken refuge, 
forcing them to leave the area. It was the Israeli armed forces that ordered these families to take 
the road to Rafah. In sum, the Israeli armed forces deliberately opened fire on a group of persons 



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they had interacted with during the preceding 24 hours and therefore knew to be civilians, killing 
the child Ibrahim Juha. 

7. The killing of Majda and Rayya Hajaj 

764. The Mission visited Juhr ad-Dik village twice and interviewed three eyewitnesses of the 
killing of Majda and Rayya Hajaj 422 and two other members of the family, sons of Rayya Hajaj 
(and brothers of Majda). The Mission also measured the distances between the reported location 
of the victims at the time of the shooting and the tanks. The Mission further obtained copies of 
the PRCS records on its attempts to obtain approval from the Israeli armed forces to dispatch 
ambulances to Juhr ad-Dik. Finally, the Mission saw the agricultural land destroyed by tanks and 
bulldozers, the rubble remaining of the house of Sal eh Hajaj, and the devastation and graffiti 423 
left by the Israeli soldiers in Youssef Hajaj 's house. 

765. Juhr ad-Dik is a village in an agricultural area south-east of Gaza City, about 1.5 
kilometres from the border with Israel (the so-called Green Line). On 3 January 2009, an Israeli 
tank force entered Juhr ad-Dik. Part of the tank force moved on towards Salah ad-Din Street and 
Zeytoun; the remaining force occupied Juhr ad-Dik. 424 

766. On 4 January 2009, at about 6 a.m., shells hit the house of Youssef Hajaj 's family, where 
he, his wife and children, the wife and children of his brother Majd (who was not with his 
family), their sister Majda, aged 37, and mother Rayya, aged 65, were taking shelter. A daughter 
of Youssef, 13-year-old Manar, was injured. Between 9 and 10 a.m., the Hajaj family decided to 
move to the house of their neighbour Muhammad al-Safdi. Around 1 1 a.m., Youssef Hajaj 
received a phone call from his brother Majd, informing him that the Israeli armed forces had 
announced on local radio stations (al-Aqsa and al-Hurriya) that people living along the border 
between Israel and Gaza should evacuate their houses to remain safe. Having prepared two 
make-shift white flags, which were carried by Majda Hajaj and Ahmad Muhammad al-Safdi, 

25 years old, who was also holding his two-year-old son in his arms, 26 members of the two 
families (more than half of them children) 425 left the al-Safdi house. They started walking down 
the road westwards, where a group of Israeli tanks was standing at a distance of 320 metres. 426 
They walked very slowly, covering 200 metres in about 10 minutes. The group was some 
120 metres away from the Israeli tanks when, without warning, they were fired on from the 
direction of the tanks. Majda Hajaj and her mother, Rayya, were hit. Majda died of her injuries 
instantly. Rayya tried to flee, but fell to the ground after a few metres. 



422 Mission interviews of Ms. Farhaneh Hajaj, Ms. Siham Hajaj, Mr. Muhammad al-Safdi, Mr. Youssef Hajaj and 
Mr. Saleh Hajaj. 

423 Graffiti photographed by the Mission in the Hajaj house included, in Hebrew, names and dates, such as "Yahir 
Ben Eliezer Commander mon. [for month] March 2006" and " Yohanan Boutboul Commander mon. [for month] 
November 2005" and, in English, the phrase "Death will find you soon". 

424 Testimony to the Mission by Youssef and Saleh Hajaj, 3 June 2009. 

425 The overall number of persons leaving the house of the al-Safdi family was also indicated to the Mission as 28. 
The Mission was told that 17 children led the procession. 

426 This and the other distances mentioned in the summary of the case were measured with GPS instruments. 



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767. The others scrambled back to the al-Safdi family house, and managed to take shelter 
behind a shack next to it and later inside the house. Members of the Hajjaj family called PRCS 
for help with the evacuation of Majda and Rayya Hajaj's bodies. PRCS in turn contacted ICRC. 
The Israeli armed forces denied ICRC access to Juhr ad-Dik on the ground that the area had been 
declared a military zone. 427 The two families spent the remainder of the day and the night 
sheltering under the staircase in the al-Safdi house, while the Israeli armed forces continued to 
direct shell and machine-gun fire at the house. The following day they walked to Gaza City by a 
different, circuitous route. The Hajaj family found the bodies of Majda and Rayya Hajaj under 
the rubble when they were able to return to Juhr ad-Dik on the evening of 18 January 2009. 

8. Factual findings 

768. The Mission found the witnesses interviewed to be credible and reliable. It has no reason 
to doubt the veracity of their testimony. 

769. The Mission finds that Majda and Rayya Hajaj were part of a group of civilians moving 
with white flags through an area in which there was, at the time, no combat. Moreover, the 
Israeli armed forces had, according to witnesses interviewed by the Mission, called over local 
radio on the civilian population of Juhr ad-Dik to evacuate their homes and walk towards Gaza 
City. In the light of these reported circumstances, and particularly considering that the civilians 
were at a distance of more than 100 metres from them, the Israeli soldiers could not have 
perceived an imminent threat from the movement of people in that area, as they would have 
expected the civilians to respond to the call for evacuation. The Mission, therefore, finds the 
shooting and killing of Majda and Rayya Hajjaj a deliberate act on the part of the Israeli soldiers. 

9. The shooting of Amal, Souad, Samar and Hajja Souad Abd Rabbo 

770. The Mission visited the site of the shooting of Amal, Souad, Samar and Hajja Souad Abd 
Rabbo and interviewed an eyewitness, Mr. Khalid Abd Rabbo, on site. Khalid and Kawthar Abd 
Rabbo gave their testimony at the public hearing in Gaza on 28 June 2009. The Mission also 
reviewed sworn statements from two additional witnesses it was not able to interview in 

428 

person. 

771 . The family of Khalid Abd Rabbo and his wife Kawthar lived on the ground floor of a 
four-storey building in the eastern part of Izbat Abd Rabbo, a neighbourhood east of Jabaliyah 
inhabited primarily by members of their extended family. Khalid Abd Rabbo' s parents and 
brothers with their families lived on the upper floors of the house. The residents of Izbat Abd 
Rabbo started hearing the sound of shooting and of the Israeli ground incursion in the evening of 
3 January 2009. Khalid Abd Rabbo' s family decided to stay inside the house, all gathered on the 
ground floor, as they had done safely during previous Israeli incursions into the neighbourhood. 

772. In the late morning of 7 January 2009, Israeli tanks moved onto the small piece of 
agricultural land in front of the house. Shortly after 12.30 p.m., the inhabitants of that part of 
Izbat Abd Rabbo heard megaphone messages telling all residents to leave. According to one 



427 PRCS records confirm the ICRC requests to the Israeli armed forces to be allowed access to Juhr ad-Dik. 

428 Affidavits of W5 and W6. 



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witness's recollection, there had also been a radio message broadcast by the Israeli armed forces 
around 12.30 announcing that there would be a temporary cessation of shooting between 1 and 
4 p.m. that day, during which time residents of the area were asked to walk to central Jabaliyah. 

773. At about 12.50 p.m., Khalid Abd Rabbo, his wife Kawthar, their three daughters, Souad 
(aged 9), Samar (aged 5) and Amal (aged 3), and his mother, Hajja Souad Abd Rabbo, stepped 
out of the house, all of them carrying white flags. Less than 10 metres from the door was a tank, 
turned towards their house. Two soldiers were sitting on top of it having a snack (one was eating 
chips, the other chocolate, according to one of the witnesses). The family stood still, waiting for 
orders from the soldiers as to what they should do, but none was given. Without warning, a third 
soldier emerged from inside the tank and started shooting at the three girls and then also at their 
grandmother. Several bullets hit Souad in the chest, Amal in the stomach and Samar in the back. 
Hajja Souad was hit in the lower back and in the left arm. 

774. Khalid and Kawthar Abd Rabbo carried their three daughters and mother back inside the 
house. There, they and the family members who had stayed inside tried to call for help by mobile 
phone. They also shouted for help and a neighbour, Sameeh Atwa Rasheed al-Sheikh, who was 
an ambulance driver and had his ambulance parked next to his house, decided to come to their 
help. He put on his ambulance crew clothes and asked his son to put on a fluorescent jacket. 
They had driven a few metres from their house to the immediate vicinity of the Abd Rabbo 
house when Israeli soldiers near the Abed Rabbo house ordered them to halt and get out of the 
vehicle. Sameeh al-Sheikh protested that he had heard cries for help from the Abd Rabbo family 
and intended to bring the wounded to hospital. The soldiers ordered him and his son to undress 
and then re-dress. They then ordered them to abandon the ambulance and to walk towards 
Jabaliyah, which they complied with. When the families returned to Izbat Abd Rabbo on 

18 January, they found the ambulance was in the same place but had been crushed, probably by a 
tank. 

775. Inside the Abed Rabbo house, Amal and Souad died of their wounds. The family decided 
that they had to make an attempt to walk to Jabalya and take Samar, the dead bodies of Amal and 
Souad, and their grandmother to hospital. Khaled and Kawthar Abd Rabbo, and other family 
members and neighbours carried the girls on their shoulders. Hajja Souad was carried by family 
and neighbours on a bed. Samar was transferred to al-Shifa hospital and then, through Egypt, to 
Belgium, where she still is in hospital. According to her parents, Samar suffered a spinal injury 
and will remain paraplegic for the rest of her life. 

776. When Khalid Abd Rabbo returned to his home on 18 January 2009, his house, as most 
houses in that part of Izbat Abd Rabbo, had been demolished. He drew the Mission's attention to 
an anti-tank mine under the rubble of a neighbour's house. 429 

10. Factual findings 

777. The Mission found Khalid and Kawthar Abd Rabbo to be credible and reliable witnesses. 
It has no reason to doubt the veracity of the main elements of their testimony. The Mission also 



429 The UNOSAT report (p. 14) counts 341 buildings in Izbat Abd Rabbo destroyed or severely damaged as a result 
of the military operations. 



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reviewed several sworn statements they and other eyewitnesses gave to NGOs about the incident 
and found them to be consistent with the account it received. 

778. The Mission notes that, in general, Izbat Abd Rabbo and the nearby areas of Jabal 
al-Kashef and Jabal al-Rayes appear to have been among the locations in Gaza which saw the 
most intense combat during the military operations. 430 The testimony of Khalid and Kawthar 
Abd Rabbo, however, shows that the Israeli armed forces were not engaged in combat or fearing 
an attack at the time of the incident. Two soldiers were sitting on the tank in front of the Abd 
Rabbo family house and having a snack. They clearly did not perceive any danger from the 
house, its occupants or the surroundings. Moreover, when the family, consisting of a man, a 
young and an elderly woman, and three small girls, some of them waving white flags, stepped 
out of the house, they stood still for several minutes waiting for instructions from the soldiers. 
The Israeli soldiers could, therefore, not reasonably have perceived any threat from the group. 
Indeed, the fact that the gunfire was directed at the three girls and, subsequently, at the elderly 
woman, and not at the young adult couple, can be seen as further corroborating the finding that 
there was no reasonable ground for the soldier shooting to assume that any of the members of the 
group were directly participating in the hostilities. The Mission finds that the soldier deliberately 
directed lethal fire at Souad, Samar and Amal Abd Rabbo and at their grandmother, Hajja Souad 
Abd Rabbo. 

779. The Mission further finds that, by preventing Sameeh al-Sheikh from taking the wounded 
to the nearest hospital in his ambulance, the Israeli armed forces deliberately further aggravated 
the consequences of the shooting. The Mission recalls that the soldiers had forced Sameeh al- 
Sheikh and his son to get out of the ambulance, undress and then re-dress. They therefore knew 
that they did not constitute a threat. Instead of allowing them to take the gravely wounded Samar 
Abd Rabbo to hospital, the soldiers forced Sameeh al-Sheikh and his son to abandon the 
ambulance and to walk towards Jabaliyah. 

11. The shooting of Rouhiyah al-Najjar 

780. The Mission visited the site of the shooting of Rouhiyah al-Najjar in Khuza'a. It 
interviewed two eyewitnesses of the shooting and six other witnesses to the events, including 
Yasmine al-Najjar, Nasser al-Najjar, Rouhiyah al-Najjar' s husband, and their daughter Hiba. 

781. The Israeli armed forces launched the attack against Khuza' a, a small town about half a 
kilometre from the border (Green Line) with Israel east of Khan Yunis, around 10 p.m. on 

12 January 2009. During the night, they used white phosphorous munitions, causing fires to 
break out in the al-Najjar neighbourhood on the eastern fringe of Khuza'a. Families in the 
neighbourhood, including the family of Nasser al-Najjar, his first wife Rouhiyah and their 
daughter Hiba, spent much of the night trying to extinguish fires in their houses. Israeli armed 
forces, possibly heliborne troops, had taken position on the roofs of some houses in the 
neighbourhood and observed the residents as they attempted to fight the fires. Around 3 a.m. 
residents also began to hear the noise of approaching tanks and bulldozers, with which they were 
well familiar, as in 2008 there had been several Israeli incursions into the farmland to the north 



430 "jjjg hidden dimension of Palestinian war casualties. . . " suggests that these areas were among those in which 
Palestinian combatants most frequently engaged the Israeli armed forces. 



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and east of Khuza'a, in the course of which bulldozers flattened fields, groves, chicken coops 
and greenhouses. 

782. In the early morning hours, some of the residents, including Rouhiyah al -Najjar, climbed 
on the roofs of their houses and hoisted improvised white flags. Using megaphones, the Israeli 
armed forces asked the men of the neighbourhood to come out of the houses and walk towards 
the tanks. There the men were separated into two groups which were then held in different 
houses under the control of the soldiers. 

783. At some point between 7 and 7.45 a.m., Rouhiyah al-Najjar and the women in her 
immediate neighbourhood decided to leave their homes and walk with their children to the town 
centre. The group of women was headed by Rouhiyah al-Najjar and her 23 -year-old neighbour 
and relative Yasmine al-Najjar, both carrying white flags. Rouhiyah' s daughter Hiba was right 
behind her. Other women were holding up babies in their arms, shouting "God is great!" and 
"We have children!" The group of women and children started moving down a straight alley, 
about six or seven metres wide, flanked on both sides by houses. At the other end of the alley, a 
little more than 200 metres away, 431 was the house of Faris al-Najjar, which had been occupied 
by numerous Israeli soldiers (around 60 according to one witness). The soldiers had made a hole 
in the wall of the first floor of the house, giving them a good view down the alley into which the 
group of women and children were advancing. When Rouhiyah al-Najjar was about 200 metres 
from Faris al-Najjar' s house, a shot fired from that house hit her in the temple (she had just 
turned her head towards her neighbour next to her to encourage her). Rouhiyah al-Najjar fell to 
the ground; Yasmine was struck in her leg. This single shot was followed by concentrated 
gunfire, which forced the group of women and children to scramble back into the houses of 
Osama al-Najjar and Shawki al-Najjar, though it did not cause further injury. Because of the fire 
from the Israeli soldiers, they did not dare to leave the house and look after Rouhiyah al-Najjar. 
They stayed inside until around noon the same day, when they made a second, successful attempt 
to leave the neighbourhood and walk to a safer part of Khuza'a. 

784. An ambulance driver from Khan Yunis hospital, Marwan Abu Reda, received a phone call 
from Khuza'a asking for emergency help for Rouhiyah al-Najjar at around 7.45 a.m. He 
immediately drove to Khuza'a and arrived in the neighbourhood shortly after 8 a.m., i.e. within 
no more than an hour from the shooting. He was already in the alley where Rouhiyah al-Najjar 
was lying on the ground 432 when soldiers opened fire from houses or rooftops, forcing him to 
make a U-turn and take the ambulance to a nearby alley. He called PRCS and asked it to seek 
access to the injured woman, through ICRC and in coordination with the Israeli armed forces, 
without success. Marwan Abu Reda was not able to pick up Rouhiyah al-Najjar' s (by then 
lifeless) body until the evening of that day. He confirmed to the Mission that she had received a 
bullet in the temple. 



431 The Mission did not measure the distance; this is an estimate. 

432 The Mission does not have information which would allow it to state whether Rouhiyah al-Najjar was still alive 
when the ambulance arrived. 



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12. Factual findings 



785. The Mission has no reason to doubt the veracity of the main elements of the testimony of 
the witnesses it heard with regard to the shooting of Rouhiyah al -Najjar. 

786. The Mission's site inspection and the testimony of several witnesses appear to establish 
that the group of women and children led by Rouhiyah al -Najjar had slowly walked for at least 
20 metres before the shot that killed Rouhiyahher was fired. During that time, Israeli soldiers 
standing on the roofs of the houses in the neighbourhood had ample time to observe the group. 
The fact that, after shooting Rouhiyah and Yasmine al -Najjar, the soldiers directed warning fire 
at the group without injuring anyone, but forcing them to retreat to a house, is further indication 
that the soldiers had not observed any threat to them from the group. 433 Indeed, a few hours later 
the same group was allowed to walk past the soldiers to a safer area of Khuza'a. The Mission 
accordingly finds that Rouhiyah al -Najjar was deliberately shot by an Israeli soldier who had no 
reason to assume that she was a combatant or otherwise taking part in hostilities. 

787. The Mission also observes that, while it is unclear whether the ambulance from Khan 
Yunis hospital could have saved Rouhiyah al-Najjar's life, the Israeli forces prevented the 
evacuation of the wounded woman without any justification. 

13. The Abu Halima family case 

788. The Mission interviewed three members of the Abu Halima family who were 
eyewitnesses to the events described below. 434 The Mission also spoke to the doctor who treated 
some of the family members. 435 The Mission reviewed a report by Physicians for Human Rights 
- Israel and Palestinian Medical Relief Society which includes analysis by doctors who observed 
the wounds of the surviving victims at the beginning of March 2009 and also has medical reports 
confirming the injuries they suffered. 436 Finally, the Mission reviewed information received from 
TAWTHEQ. 

789. On 3 and 4 January 2009, the initial days of the ground invasion, there was heavy aerial 
bombardment and shelling by tanks of the open areas around Siyafa village, in al-Atatra 
neighbourhood west of Beit Lahia. Most residents are farmers and, although the Israeli armed 



433 The Mission was not given any testimony about the presence of Palestinian combatants in Khuza'a at the time of 
this incident. In fact, Khuza'a municipal officials expressly denied that there was any combatant activity in Khuza'a 
at the time of the Israeli ground invasion, arguing that, Khuza'a and the surrounding fields being such an open area, 
there was no place for fighters to take cover. These statements are contradicted by reports indicating that "about one 
dozen fighters had directly engaged the IDF in Khuza'a. But these engagements appear to have been minimal, with 
the fighters mostly retreating whenever the Israeli forces advanced." (Human Rights Watch, Rain of Fire: Israel's 
Unlawful Use of White Phosphorous in Gaza (March 2009), pp. 53-54). 

434 Mission interviews with Sabah Abu Halima (aged 45), Muhammad Sa'ad Abu Halima (aged 24), Omar Sa'ad 
Abu Halima (aged 18), 15 June 2009. 

435 Mission interview with Dr. Nafeez, the burns expert from al-Shifa hospital, 12 June 2009. 

436 Physicians for Human Rights-Israel and Palestinian Medical Relief Society, "Final report: Independent fact- 
finding mission into violations of human rights in the Gaza Strip during the period 27.12.08-18.01.09", pp. 51-55, 
available at: http://www.phr.org.il/phr/files/articlefile 1241949935203.pdf . 



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forces had dropped leaflets warning civilians to leave the area, most had chosen to stay. Based 
on their previous experiences of ground invasions, they reportedly believed that they were not in 
danger. 

790. On 4 January 2009, the bombardment reportedly increased as Israeli troops moved into 
and took control of al-Atatra neighbourhood. The Abu Halima family was sheltering in the home 
of Muhammad Sa'ad Abu Halima and Sabah Abu Halima in Sifaya village. The house has two 
floors; the ground floor is used for storage and the living quarters are on the upper floor. 
According to Sabah Abu Halima, 437 16 members of her immediate family were sheltering on the 
upper floor. 

791 . In the afternoon, after hearing that a shell had hit the adjacent house of Sabah Abu 
Halima' s brother-in4aw, most of the family moved from the bedroom into a hallway in the 
middle of the upper floor, where they thought they would be better protected. At around 
4.30 p.m., a white phosphorous shell came through the ceiling into the room where they were 
sheltering. 

792. According to family members who survived, 438 there was intense fire and white smoke in 
the room, the walls of which were glowing red. Five members of the family died immediately or 
within a short period: Muhammad Sa'ad Abu Halima (aged 45) and four of his children, sons 
Abd al-Rahim Sa'ad (aged 14), Zaid (aged 12) and Hamza (aged 8), and daughter Shahid (aged 
18 months). Muhammad Sa'ad and Abd al-Rahim Sa'ad were decapitated, the others burnt to 
death. Five members of the family escaped and suffered various degrees of burns: Sabah Abu 
Halima, her sons Youssef (aged 16) and Ali (aged 4), daughter-in4aw Ghada (aged 21), and 
Ghada's daughter Farah (aged 2). 439 

793. Family members tried to call an ambulance, but the Israeli armed forces had declared the 
area a closed military zone and ambulances were not permitted to enter. Two cousins put Sabah 
Abu Halima in the back of a tractor trailer and drove her to Kamal Idwan hospital in Beit Lahia. 
The driver reported that he reached the hospital despite coming under fire from Israeli soldiers 
posted inside the Omar Bin Khattab school for girls on the road to al-Atatra. 440 One cousin 
remained with Sabah Abu Halima, while the other returned to help the rest of the family. 

794. The remaining survivors and the injured were placed on a second tractor trailer to take 
them to Kamal Idwan hospital. The remains of Shahid Abu Halima were also taken. The tractor 
was driven by a cousin, Muhammad Hekmat Abu Halima (aged 16). Another cousin, Matar Abu 
Halima (aged 17), his brother Ali (aged 1 1) and his mother, Nabila, accompanied them. 



437 Statement by Sabah Abu Halima to the Mission on 15 June 2009. 

438 Statements by Sabah Abu Halima, Muhammad Sa'ad Abu Halima and Omar Sa'ad Abu Halima to the Mission 
on 15 June 2009. 

439 Given the seriousness of their injuries, Sabah, Farah and Ghada Abu Halima were transferred to Egypt for 
treatment. Ghada died there in late March 2009. 

440 www.dci-pal.org/English/Doc/Press/Case-Study Cast-Lead Abu-Halima Family FINAL.pdf . 



A/HRC/12/48 
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795. When they reached the crossroads next to the Omar Bin Khattab school in al-Atatra, 
Israeli soldiers positioned on the roof of a nearby house, some ten metres away, ordered them to 
stop. Muhammad Hekmat, Matar, Ali, Nabila and Matar got down and stood beside the tractor. 
One or more soldiers opened fire, hitting Muhammad Hekmat Abu Halima in the chest and 
Matar Abu Halima in the abdomen. 441 Both died as a result of their injuries. Ali, Omar and 
Nabila Abu Halima fled. Omar was shot in the arm, but they eventually reached Kamal Idwan 
hospital. 

796. The remaining family members were ordered to abandon the tractors and walk. They were 
not permitted to take the bodies of the two dead boys, or the remains of Shahid Abu Halima, 
which were recovered four days later, on 8 January. Ghada Abu Halima, who had burns on 

45 per cent of her body, had great difficulty walking. After some 500 metres, a vehicle picked up 
several members of the family, including Ghada and Farah, and took them to al-Shifa hospital in 
Gaza City. 

797. Dr. Nafiz Abu Shaban, Chief of Plastic Surgery at al-Shifa hospital, confirmed that Sabah, 
Ghada and Farah Abu Halima were admitted there with serious burns and were transferred to 
Egypt for treatment. The doctor believed that the burns were caused by contact with white 

1 1 442 

phosphorous. 

14. Factual findings 

798. The Mission found Sabah Abu Halima, Muhammad Sa'ad Abu Halima and Omar Sa'ad 
Abu Halima to be credible and reliable witnesses. It has no reason to doubt the veracity of the 
main elements of their testimonies, which were corroborated by the testimony of Dr. Nafiz Abu 
Shaban of al-Shifa hospital. 

799. With regard to the white phosphorous shelling of the Abu Halima family house, the 
Mission notes that the house is located in a village in a rural area. The shelling occurred on 

4 January 2009 at a time when Israeli ground forces were apparently advancing into al-Atatra. 
Moreover, the Israeli armed forces had dropped leaflets warning civilians to leave. Under the 
circumstances, the Mission cannot make any determination as to whether the shelling of the Abu 
Halima house was a direct attack against a civilian objective, an indiscriminate attack or a 
justifiable part of the broader military operation. 

800. With regard to the shooting of Muhammad Hekmat Abu Halima and Matar Abu Halima, 
the Mission notes that the Israeli soldiers had ordered the tractor on which they were transporting 
the wounded to stop and had ordered the two cousins (aged 16 and 17) to come down. They had 
complied with those instructions and were standing next to the tractor, when the Israeli soldiers 
standing on the roof of a nearby house opened fire on them. The soldiers cannot have been 
mistaken about the circumstance that these were two civilians taking gravely wounded persons to 
a hospital. The shooting of Muhammad Hekmat Abu Halima and Matar Abu Halima was a direct 



441 According to statements given by Omar and Nabila Abu Halima to the NGO Defence for Children International 
(ibid.). Information provided to the Mission by Omar Abu Halima on 15 June 2009 was less detailed but consistent 
with this information. 

442 Mission interview, 12 June 2009. 



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lethal attack on two under-age civilians. The fact that they were hit in the chest and the abdomen, 
respectively, indicates that the intention was to kill them. 

801 . The Mission further notes that in this case the Israeli armed forces denied the ambulances 
access to the area to evacuate the wounded and then opened fire on the relatives of the wounded 
who were trying to take them to the nearest hospital. 

C. Information concerning the instructions given to the Israeli armed forces 
with regard to the opening of fire against civilians 

802. The Mission found in the above incidents that the Israeli armed forces repeatedly opened 
fire on civilians who were not taking part in the hostilities and who posed no threat to them. 
These incidents indicate that the instructions given to the Israeli armed 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 by the Israeli NGO Breaking the Silence 443 and in the Protocol of the 
Rabin Academy's "Fighters' Talk". These testimonies suggest in particular that the instructions 
given to the soldiers conveyed two "policies". Both are an expression of the aim to eliminate as 
far as possible any risk to the lives of the Israeli soldiers. 

803. The first policy could be summarized, in the words of one of the soldiers: "if we see 
something suspect and shoot, better hit an innocent than hesitate to target an enemy." Another 
soldier attributed the following instructions to his battalion commander: "If you are not sure - 
shoot. If there is doubt then there is no doubt." The first soldier summarized the briefing from the 
battalion commander as follows "the enemy was hiding behind civilian population. [. . .] if we 
suspect someone, we should not give him the benefit of the doubt. Eventually, this could be an 
enemy, even if it's some old woman approaching the house. It could be an old woman carrying 
an explosive charge." A third soldier explained "you don't only shoot when threatened. The 
assumption is that you constantly feel threatened, so anything there threatens you, and you shoot. 
No one actually said 'shoot regardless' or 'shoot anything that moves.' But we were not ordered 
to open fire only if there was a real threat." 444 

804. The Mission notes that some soldiers stated that they agreed with the instructions to 
"shoot in case of doubt." One of them explained "this is the difference between urban warfare 
and a limited confrontation. In urban warfare, anyone is your enemy. No innocents." Another 
told of his profound discomfort with the policy and of how he and his comrades had attempted to 
question their commander about it after a clearly harmless man was shot. 445 While they disagreed 
about the legitimacy and morality of the policy, they had little doubt about the terms of the 
instructions: each soldier and commander on the ground had to exercise judgement, 446 but the 
policy was to shoot in case of doubt. 



Soldiers ' Testimonies... . 

444 Ibid., testimony 21, pp. 50-51, testimony 7, p. 20, and testimony 9, p. 24. 

445 Ibid., testimony 7, p. 20, and testimony 14, pp. 38-39. 

446 Ibid., testimony 13, p. 37. 



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805. The second policy clearly emerging from the soldiers' testimonies is explained by one of 
the soldiers as follows: "One of the things in this procedure [the outpost procedure, which is 
being applied in areas held by the Israeli armed forces after the Gaza ground invasion] is setting 
red lines. It means that whoever crosses this limit is shot, no questions asked. [. . .] Shoot to 
kill." 447 In one incident highly relevant to the cases investigated by the Mission because of 
factual similarities, a soldier recounted an event he witnessed. 448 A family is ordered to leave 
their house. For reasons that remain unclear, probably a misunderstanding, the mother and two 
children turn left instead of right after having walked between 100 and 200 metres from their 
house. They thereby cross a "red line" established by the Israeli unit (of whose existence the 
mother and children could have no knowledge). An Israeli marksman on the roof of the house 
they had just left opens fire on the woman and her two children, killing them. As the soldier 
speaking at the Rabin Academy's "Fighters' Talk" a month later observes, "from our 
perspective, he [the marksman] did his job according to the orders he was given". 

806. "Incessant" alerts about suicide bombers 449 meant that even civilians clearly identified by 
the soldiers as carrying no arms were perceived as a threat as soon as they came within a certain 
distance from the soldiers - a threat to be eliminated, also without warning fire, as a second 
might be enough for the "suicide bomber" to get close enough to harm the soldiers. 

807. The Mission notes that many of the persons interviewed in Gaza described incidents in 
which they were, individually, as part of a group or in a vehicle, exposed to intense gunfire 
from Israeli soldiers - but without being hit or injured. This was the case, for instance, of an 
ambulance drivers attempting to drive into an area which the Israeli armed forces had decided he 
should not enter. 450 In the Khuza'a case, after the lethal shooting of Rouhiyah al -Najjar and 
wounding of Yasmine al -Najjar, the other women and children were exposed to fire from the 
Israeli soldiers, which forced them to retreat to the houses they had been trying to leave. 451 These 
incidents suggest that the Israeli armed forces made ample use of gunfire to "communicate" with 
the civilian population, to issue injunctions to civilians not to walk or not to drive any further in a 
certain direction or to immediately retreat to a building they were about to leave. The terrifying 
effect this sort of non-verbal communication had on those at the receiving end is evident, as is 
the likelihood of lethal consequences. 

808. The Mission also read testimony from soldiers who recounted cases in which, although a 
civilian had come within a distance from them which would have required opening fire under the 
rules imparted to them, they decided not to shoot because they did not consider the civilian a 
threat to them. 



447 Ibid., testimony 12, p. 32, also testimony 21, p. 52; and the of "Ram" in the Rabin Academy Fighters' Talk, 
pp. 6-7. 

448 Testimony of "Ram" in the Rabin Academy Fighters' Talk, pp. 6-7. The Mission notes that "Ram" clearly states 
that he was an eyewitness to the incident. 

449 For instance, Soldiers ' Testimonies... , testimony 13, p. 37, and testimony 22, p. 53. 

450 Interview with Marwan Abu Reda, 1 1 June 2009. For a description of warning shots in front of moving vehicles, 
see Soldiers ' Testimonies... , testimony 12, p. 33. 

451 This would appear to have been the case also in the shooting of Majda and Rayya Hajaj in Juhr ad-Dik. 



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D. Legal findings with regard to the cases investigated by the Mission 

809. The fundamental principles applicable to these incidents, which are cornerstones of both 
treaty -based and customary international humanitarian law, are that "the parties to the conflict 
shall at all times distinguish between the civilian population and combatants" 452 and that "the 
civilian population as such, as well as individual civilians, shall not be the object of attack". 453 
The Israeli Government refers to the principle of distinction as "the first core principle of the 
Law of Armed Conflict." It further states that "the IDF's emphasis on compliance with the Law 
of Armed Conflict was also directly incorporated into the rules of engagement for the Gaza 
Operation." The principle of distinction was reportedly incorporated in the following terms: 
"Strikes shall be directed against military objectives and combatants only. It is absolutely 
prohibited to intentionally strike civilians or civilian objects (in contrast to incidental 
proportional harm)" 454 

810. In reviewing the above incidents the Mission found in every case that the Israeli armed 
forces had carried out direct intentional strikes against civilians. The only exception is the 
shelling of the Abu Halima family home, where the Mission does not have sufficient information 
on the military situation prevailing at the time to reach a conclusion. 

811. The Mission found that, on the basis of the facts it was able to ascertain, in none of the 
cases reviewed were there any grounds which could have reasonably induced the Israeli armed 
forces to assume that the civilians attacked were in fact taking a direct part in the hostilities and 
had thus lost their immunity against direct attacks. 455 

812. The Mission therefore finds that the Israeli armed forces have violated the prohibition 
under customary international law and reflected in article 51 (2) of Additional Protocol I that the 
civilian population as such will not be the object of attacks. This finding applies to the attacks on 
the houses of Ateya and Wa'el al-Samouni, the shooting of Iyad al-Samouni, of Shahd Hajji and 
Ola Masood Arafat, of Ibrahim Juha, of Rayya and Majda Hajaj, of Amal, Souad, Samar, and 
Hajja Souad Abd Rabbo, of Rouhiyah al -Najjar, and of Muhammad Hekmat Abu Halima and 
Matar Abu Halima. In these incidents, 34 Palestinian civilians lost their lives owing to Israeli fire 
intentionally directed at them. Numerous others were injured, some very severely and with 
permanent consequences. 

813. Not only are civilians not to be the object of attacks, they are also "entitled in all 
circumstances, to respect for their persons . . . protected especially against all acts of violence or 
threats thereof (Fourth Geneva Convention, art. 27). Fundamental guarantees set out in article 
75 of Additional Protocol I include the absolute prohibition "at any time and in any place" of 
"violence to the life, health, or physical or mental well-being of persons". According to the facts 
presented to the Mission, these provisions have been violated. 



452 Additional Protocol I, art. 48. 

453 Additional Protocol I, art. 51 (2). 

454 "jjjg p era tion in Gaza. . . ", paras. 94 and 222. 

455 Pursuant to article 51 (3) of Protocol Additional I, civilians enjoy immunity from attack "unless and for such time 
as they take a direct part in hostilities." On the status of this rule in customary law, see chap. VII. 



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814. The State of Israel would be responsible under international law for these internationally 
wrongful actions carried out by its agents 

815. From the facts ascertained, the Mission finds that the conduct of the Israeli armed forces 
in these cases would constitute grave breaches of the Fourth Geneva Convention in respect of 
wilful killings and wilfully causing great suffering to protected persons 456 and as such give rise 
to individual criminal responsibility. 

816. The Mission also finds that the direct targeting and arbitrary killing of Palestinian 
civilians is a violation by the Israeli armed forces of the right to life as provided in article 6 of 
the International Covenant on Civil and Political Rights. 

817. In most of the cases examined above, the Mission finds that the Israeli armed forces 
denied the medical emergency services access to the wounded civilians. This was the case with 
regard to all the incidents occurring in the al-Samouni neighbourhood, particularly after the 
shooting of Ahmad al-Samouni, where the PRCS ambulance was forced to return to Gaza City 
having come within 100 metres of the gravely wounded boy. Ambulances were also arbitrarily 
prevented from reaching the wounded after the attack on Wa'el al-Samouni's house, most 
dramatically after the shooting of Amal, Souad, Samar, and Hajja Souad Abd Rabbo and of 
Rouhiyah al -Najjar. In the case of the shooting of Muhammad Hekmat Abu Halima and Matar 
Abu Halima, it is the rescuers who were executed, preventing them from taking their severely 
burned relatives to hospital. In the case of Iyad al-Samouni, finally, the relatives who wanted to 
assist him were threatened with being shot themselves. 

818. The Mission recalls that article 10 (2) of Additional Protocol I provides that "In all 
circumstances [the wounded] shall be treated humanely and shall receive, to the fullest extent 
practicable and with the least possible delay, the medical care and attention required by their 
condition. ..." This provision enjoys customary international law status. The Mission is mindful 
that "the obligation to protect and care for the wounded ... is an obligation of means." It applies 
whenever circumstances permit. However, "each party to the conflict must use its best efforts to 
provide protection and care for the wounded,. . . , including permitting humanitarian 
organizations to provide for their protection and care " 457 

819. The facts ascertained by the Mission establish that in the incidents investigated the Israeli 
armed forces did not use their best efforts to provide humanitarian organizations access to the 
wounded. On the contrary, the facts indicate that, while the circumstances permitted giving 
access, the Israeli armed forces arbitrarily withheld it. 

820. On this basis, the Mission finds a violation of the obligation under customary international 
law to treat the wounded humanely. 



456 Article 1 47 of the Fourth Geneva Convention defines the "wilful killing" of protected persons as a grave breach 
of the Convention. The same qualification is applied to acts which "wilfully caus[e] great suffering or serious injury 
to body or health". 

Customary International Humanitarian Law ... , rule 110 and p. 402. 



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82 1 . The conduct of the Israeli armed forces amounted to violations of the right to life where it 
resulted in death, and to a violation of the right to physical integrity, and to cruel and inhuman 
treatment in other cases, which constitutes a violation of articles 6 and 7 of the International 
Covenant on Civil and Political Rights. 

E. The attack on the al-Maqadmah mosque, 3 January 2009 

1. The facts gathered by the Mission 

822. The al-Maqadmah mosque is situated near the north-west outskirts of Jabaliyah camp, 
close to Beit Lahia. It is located less than 100 metres from the Kamal Idwan hospital, in the al- 
Alami housing project. At least 15 people were killed and around 40 injured - many seriously - 
when the Israeli armed forces struck the entrance of the mosque with a missile. 

823 . The Mission heard five eyewitnesses who had been in the mosque at the time it was 
struck. Two of them had been facing the door as the explosion occurred. Three of them had been 
kneeling facing the opposite direction and had been seriously injured. The Mission also heard 
from a number of relatives of those who died in the attack and has seen a number of sworn 
statements signed by them testifying to the facts they witnessed. 458 The Mission also heard again 
from three witnesses it had interviewed earlier at the public hearings in Gaza. Finally, the 
Mission reviewed information received from TAWTHEQ. 

824. On the evening of 3 January 2009, between 5 and 6 p.m., a large number of people had 
gathered in the mosque for evening prayers. Witnesses indicate that between 200 and 300 men 
had gathered on the first floor. 459 A number of women had also congregated in the basement at 
that time. Witnesses explained that in time of fear or emergency it was the tradition to combine 
sunset and evening prayers. 460 In addition, the Mission heard that, while some time normally 
elapses between the muezzin calling the faithful to prayer and the prayers beginning, at this time 
it was the practice to begin prayers almost immediately. 

825. The witnesses indicated that prayers had ended and the sermon was just beginning. At that 
point there was an explosion in the doorway to the mosque. One of the two wooden doors was 
blown off its hinges and all the way across the prayer area to the opposite wall. 

826. As a result of the explosion at least 15 people died. Almost all were inside the mosque at 
the time. One of the casualties was a boy who had been sitting at the entrance. His leg was blown 
off by the missile strike and found afterwards on the roof of the mosque. A large number, around 
40, suffered injuries. Many were taken to the Kamal Idwan hospital for treatment. 



458 Note, for example, the affidavit of Ismail al-Salawi, brother of the sheikh at the mosque. He recounts how he was 
on his way to the mosque when his 13 -year-old daughter ran towards him screaming that it had been bombed. He 
rushed in to find a scene of bloody chaos. As an immediate result of the strike his grandson Muhammad (13 years 
old), his nephews Hani (8 years old) and Omar (27 years old) were killed. See also a similar explanation of events 
by Ayisha Ibrahim, whose husband, Abdul Rahman (46), and son Ra'id were killed in the attack. 

459 



-161) 



Sheikh al-Salawi, interviewed on 3 June 2009 and 4 July 2009. 

See, for example, Sheikh al-Salawi at the public hearing in Gaza on 27 July 2009, available at 



http : //www . realnetworks . com 



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827. On visiting the mosque, the Mission was able to observe the damage done to it. Its 
immediate entrance is on a raised level from the external pavement and is reached via a ramp. 
There are a number of stairs below the doorway, now covered by the raised entrance at the end 
of the ramp. The stairs underneath the ramp were damaged and the concrete had been pierced. 
There was a scorch mark on the ground and stairs. 

828. The Mission has also viewed a number of photographs taken shortly after the strike and 
considers them to be reliable. They showed that something had penetrated the concrete (about 
three inches thick) immediately outside of the mosque doorway and then hit the pavement at the 
bottom of the stairs below the concrete covering. The ramp and entrance level structure had a 
wall about one metre high built on its outer side. The part of the wall opposite the mosque door 
was blown away. 

829. The Mission observed that the interior walls of the mosque and part of the exterior wall 
around the doorway appeared to have suffered significant damage as a result of a spray of small 
metal cubes. A good number of these were lodged in the wall even at the time of the Mission's 
visit to the site in June 2009. Several of these were retrieved and the Mission could see how 
deeply embedded they were in the concrete walls. 

830. Apart from the aforementioned visit to the mosque, the Mission has interviewed its sheikh 
on three occasions, its imam twice, its muezzin, several members of the sheikh's family, several 
of those injured in the blast and a number of the relatives who lost family members and who 
assisted in the immediate aftermath of the attack. It has seen medical certificates that bear out the 
nature of those injuries related by the young men it interviewed. The Mission questioned all of 
the witnesses and sought to clarify any doubts it may have had. 

2. The position of the Israeli Government and the Israeli armed forces 

83 1 . The Israeli armed forces' response to the allegations states: 

. . . relating to a strike against the "Maqadme" mosque in Beit-Lahiya on January 3 rd , 2009, 
it was discovered that as opposed to the claims, the mosque was not attacked at all. 
Furthermore, it was found that the supposed uninvolved civilians who were the casualties 
of the attack were in fact Hamas operatives killed while fighting against the IDF. 461 

832. Apart from the apparent contradictions it contains, the Mission notes that the statement 
does not indicate in any way the nature of the inquiry, the source of its information or the 
reliability and credibility of such sources. 

833. In July 2009 the Israeli Government repeated the same position. 462 



461 "Conclusions of investigations into central claims and issues in Operation Cast Lead", 22 April 2009, annex C. 
The document was approved and authorized by the Chief of the General Staff Lt. Gen. Gabi Ashkenazi. It is 
available at: http://dover.idf.il/IDF/English/opcast/postop/press/2201.htm 

462 " jjjg p era tion in Gaza. . . ". 



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Factual findings 



834. The Mission has established that the Israeli armed forces fired a missile that struck near 
the doorway of the mosque. The penetration pattern witnessed on the concrete ramp and stairs 
underneath is consistent with that which would be expected of a shrapnel fragmentation sleeve 
fitted onto an air-to-ground missile. Shrapnel cubes that the Mission retrieved from the rear 
inside wall of the mosque are consistent with what would be expected to be discharged by a 
missile of this nature. 463 

835. The strike killed at least 15 people attending the mosque for prayers and very seriously 
injured several others. 

836. The Mission is not in a position to say from which kind of aircraft or air-launch platform 
the missile was fired. It believes the testimony of the witnesses regarding the circumstances of 
the attack, finding it plausible and consistent not only with the other witnesses, but also with the 
physical evidence at the scene. The Mission also notes that a number of local organizations sent 
representatives to the site of the attack very shortly after it occurred and they witnessed the scene 
for themselves. The Mission has also spoken with them and notes that their accounts are 
consistent with the testimony provided by the witnesses it heard. 

837. There has been no suggestion that the al-Maqadmah mosque was being used at that time 
to launch rockets, store weapons or shelter combatants. 464 Since it does not appear from the 
testimonies of the incident or the inspection of the site that any other damage was done in the 
area at that time, the Mission concludes that what occurred was an isolated strike and not in 
connection with an ongoing battle or exchange of fire. 

4. Legal findings 

838. In the absence of any explanation as to the circumstances that led to the missile strike on 
al-Maqadmah mosque and taking into account the credible and reliable accounts the Mission 
heard from multiple witnesses, as well as the matters it could review for itself by visiting the site, 
the Mission concludes that the mosque was intentionally targeted by the Israeli armed forces. 
The Mission also takes into account the precision and sophistication of the Israeli armed forces' 
munitions in making this finding. 

839. The Mission's finding is strengthened in the face of the unsatisfactory and demonstrably 
false position of the Israeli Government. 

840. It follows that this was an attack on the civilian population as such and not on a military 
objective. 



463 The Mission considers it possible in analysing the information available that the missile in question may have 
been a modified high-explosive anti-tank missile, sometimes referred to as either augmented high-explosive anti- 
tank (AHEAT) or high-explosive dual-purpose (HEDP). 

464 See, for example, statements made by Israel in "The operation in Gaza. . . ", para. 234. 



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841 . Based on the facts ascertained, the Mission finds that the Israeli armed forces have 
violated the prohibition under customary international law that the civilian population as such 
will not be the object of attacks as reflected in article 51 (2) of Additional Protocol I. 

842. Based on those facts, the violations also constitute a grave breach of the Fourth Geneva 
Convention in respect of wilful killings and wilfully causing great suffering to protected persons. 

843. The Mission also finds that the State of Israel would be responsible for the arbitrary 
deprivation of the right to life, in relation to article 6 of the International Covenant on Civil and 
Political Rights, of those killed. 

F. The attack on the al-Daya family house, 6 January 2009 

1. The facts gathered by the Mission 

844. On 6 January 2009, the al-Daya Family house located on al-Rai'i Street in Zeytoun, south- 
east of Gaza City, was struck by a projectile fired from an F-16 aircraft which killed 22 members 
of the family. Twelve of those killed were children under 10. 



845. In June 2009, the Mission visited the site of the incident where it interviewed two of the 
four surviving members from the al-Daya family and a number of local residents. 465 Further 
inquiries and interviews were conducted in late July with neighbours of the al-Daya family. 



846. The al-Daya house was a four-storey building with seven apartments owned by Fayez 
Musbah al-Daya. Each apartment was occupied by one of his seven sons, some married and 
living with their own families, and two unmarried daughters. 

847. The Israeli armed forces reached Zeytoun on 3 January. Witnesses interviewed by the 
Mission said that the Israeli armed forces dropped leaflets in the area instructing people not to 
support Hamas and to provide the Israeli armed forces with information, at a given number, on 
military activities in the neighbourhood, including details of weapon facilities. 466 

848. Witnesses mentioned that a rumour had circulated that the Israeli forces were going to 
bomb a house in the neighbourhood, which led several families to leave their homes. 467 A few 
families chose to stay, including the remaining members of the al-Daya family and five other 
families. 468 

849. On the morning of 6 January, at around 5.35 a.m. a missile was reportedly fired in the 
vicinity of the al-Daya house, close to the Hassan al -Banna mosque, which killed an elderly man. 
Witnesses stated that the strike occurred shortly after the morning prayers had ended and when 
the man was on his way home. The same witnesses confirmed that the death of the man in 



465 Muhammad Fayez al-Daya, Rida Fayez al-Daya, Aimer al-Daya and Hafez al-Daya. 

466 Mission interviews with Muhammad Salam al-Ra'i, Deeb al-Ra'i, Faraj al-Ra'i and Rida al-Daya, July 2009. 

467 Those who left included the eldest son of the al- Daya family, Nafez al-Daya, his wife and seven children. 

468 The families of Zuher al-Ra'i (an estimated 16 people), Faraj al-Ra'i (an estimated 15 people), Jumaa al-Ra'i 
(an estimated 7 people), Mahmoud al-Hindi (an estimated 4 people) and Shawqi Sa'd. 



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question was caused not by a bullet but by a small missile. Approximately 10 minutes later, at 
around 5.45 a.m. the al-Daya family house was hit by a projectile from an F-16 aircraft. 

850. Twenty -two members of the al-Daya family inside the house were killed. 469 

851. The Mission interviewed a number of neighbours. Each one of them said they had not 
received any warning call from the Israeli forces prior to the strike on the al-Daya house and 
confirmed that no other house in the street was struck after the al-Daya house had been hit. 

852. Owing to the location of the house and the narrow street access it took several hours 
before neighbours were able to dig through the rubble. One brother, Radwan al-Daya, was pulled 
out of the debris alive and taken to the hospital with the help of a PRCS worker who lived near 
the al-Daya house. He died three days later having suffered severe asphyxiation. Several bodies 
were recovered only after the withdrawal of the Israeli armed forces. 

2. The Israeli position 

853. On 22 April 2009 the Israeli armed forces issued the following statement: 

[. . . ] The Al-Daia family residence in the Zeitoun neighbourhood in the city of Gaza 
(January 6 th , 2009) - the incident in question was a result of an operational error with 
unfortunate consequences. The investigation concluded that the IDF intended to attack a 
weapons storage facility that was located in the building next to the Al-Daia family 
residence. It appears that following an error, the structure that was planned to be attacked 
was the Al-Daia residence rather than the building containing the weapons. 470 

854. In July 2009 the Israeli Government stated the following: 

The IDF has concluded that this tragic event was the result of an operational error. 
An investigation determined that the IDF intended to strike a weapons' storage facility 
located in a building next to this residence. However, the IDF erroneously targeted the 
Al-Daia residence, rather than the weapons storehouse. Although the IDF did provide 
warning shots to the roof of the Al-Daia residence, other warnings (such as the warning 
phone call) were made to the building actually containing the weapons, not the Al-Daia 
residence. 

The IDF is examining how the unfortunate operational error occurred, in order to 
reinforce safeguards and to prevent its recurrence. Israel deeply regrets the tragic 
outcome. This is the kind of mistake that can occur during intensive fighting in a crowded 
environment, against an enemy that uses civilian neighbourhoods as cover for its 
operations. IDF forces did not intentionally target civilians. This lack of unlawful intent 



469 These included the wife of Muhammad al-Daya (one of the surviving family members), their three daughters and 
one son, all under seven, who were crushed under the rubble of the house. Most of them were asleep at the time of 
the attack. Others killed included Fayez al-Daya and his wife; Iyad al-Daya and his wife Rawda, their three 
daughters and three sons, all under 10; Ramez al-Daya, his wife Safa, and their six-month-old daughter and two- 
year-old son; two sisters, Raghdah and Sabrine, and Radwan al-Daya. 

470 "Conclusions of investigations...", annex C. 



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has been a critical factor, in past incidents involving operational mistakes by other armies 
(such as NATO's erroneous bombing of the Chinese Embassy in the former Yugoslavia), 
in determining that no violation of the Law of Armed Conflict occurred. Similarly, 
although its attack on the Al-Daia residence was a tragic error, it did not constitute a 
violation of the laws of war. 471 

3. Factual findings 

855. Israel's position is that the al-Daya house was destroyed as a result of an "operational 
error" made at some point in the planning of the operation. It says the target that should have 
been hit was a neighbouring house storing weapons. The Mission has interviewed the residents 
of the neighbouring houses and visited the site. No neighbouring house was attacked at any time 
after the al-Daya house was destroyed. The Mission finds it difficult to understand how a target 
apparently important enough to be targeted for such definitive destruction in the first place, as a 
result of what it apparently contained, could then remain free from attack for the remaining 

12 days of the land operation. 

856. The Mission is unable to verify claims that a warning was given by means of firing a 
small missile to the roof as the house was destroyed and the residents killed. Local witnesses 
have reported that a small missile did appear to strike an elderly man in the neighbourhood about 
10 minutes before the al-Daya house was destroyed but the Mission is not in a position to say 
whether this is likely to have been an errant warning shot. 

857. The Israeli authorities have not indicated with any precision which house they called but 
the claim that a warning call was made to the house that allegedly contained weapons has been 
denied by all local residents. No such call was received by anyone in the houses neighbouring 
the al-Daya house. 

858. In these circumstances there are significant doubts about the Israeli authorities' account of 
the incident and what has been offered to date does not in the view of the Mission constitute an 
explanation. 

859. Besides the main difficulties mentioned above, there are a number of issues that could 
have been easily clarified but were not. The precise nature of the operational error remains 
unclear, as does the time it occurred and who was responsible for it. Similarly, it would appear 
that the warnings system failed at various points: the Government of Israel reports that a warning 
was given on the basis that it believed there was a house storing weapons. Given the power of 
the projectile that destroyed the four-storey al-Daya building, the Mission wonders what the 
consequences would have been if the projectile had in fact struck a weapons store, yet there is no 
suggestion by the Israeli authorities of a warning having been given to neighbouring houses that 
secondary explosions were possible. Not only does it appear that the wrong warnings were given 
to the wrong people, but if the existence of the storage facility is to be believed at all, it would 
also appear that the apparently feasible step of warning locals of entirely foreseeable danger was 
not taken either. 



471 "The operation in Gaza... ", paras. 386-387. 



A/HRC/12/48 
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860. The Mission finds the version of events offered so far by Israel to be unsatisfactory. The 
details given are not sufficient to clarify the nature of the very serious error that has been made, 
if it was an error. In so far as any explanation has been given, it appears to lack coherence and 
raises more questions than it answers. 

4. Legal findings 

861. In the absence of information necessary to determine the precise circumstances of the 
incident, the Mission can make no findings on possible violations of international humanitarian 
law or international criminal law. If indeed a mistake was made and the intention was to destroy 
a house nearby rather than to kill the al-Daya family, there could not be said to be a case of 
wilful killing as the requisite degree of criminal intent would not have been established on the 
part of the individuals responsible. 472 

862. However, the issue of State responsibility remains. The International Law Commission's 
articles on the responsibility of States for internationally wrongful acts 473 are silent on whether 
such a mistake relieves a State of its international responsibility for the commission of an 
internationally wrongful act and the requirement of fault in international law is controversial. In 
a commentary on the articles, Crawford and Olleson consider that "if a State deliberately carries 
out some specific act, there is less room for it to argue that the harmful consequences were 
unintended and should be disregarded. Everything depends on the specific context and on the 
content and interpretation of the obligation said to have been breached". 474 

863. The obligation breached in this case is the duty to ensure the general protection of the 
civilian population against the dangers arising from military operations, as reflected in article 
51 (1) of Additional Protocol I. 

864. The firing of the projectile was a deliberate act in so far as it was planned, by Israel's 
admission, to strike the al-Daya house. The fact that target selection had gone wrong at the 
planning stage does not strip the act of its deliberate character. The consequences may have been 
unintended; the act was deliberate. Taken together with further facts (such as the failure to 
deliver an effective warning) and the nature of the "intransgressible obligation" to protect 
civilian life, the Mission considers that, even if a fault element is required, the available 
information demonstrates a substantial failure of due diligence on the part of Israel. As such, the 
Mission considers Israel to be liable for the consequences of this wrongful act. 

865. The Mission finds that Israel's lack of due diligence in this case also constitutes a 
violation of the right to life as set out in article 6 of the International Covenant on Civil and 
Political Rights, to which Israel is a party. The right to life includes the negative obligation to 
respect life and the positive obligation to protect life. The Human Rights Committee has stated 
that States parties should take measures not only to prevent and punish deprivation by criminal 



472 See, for example, article 32 of the Rome Statute. 

473 Annexed to General Assembly resolution 56/83. 



474 J. Crawford and S. Olleson, "The nature and forms of international responsibility", in International Law, 
M. Evans, ed. (Oxford, Oxford University Press, 2003). 



A/HRC/12/48 
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acts, but also to prevent arbitrary killing by their own security forces. 475 No exception is made 
for acts during war. 

866. The right to life also includes a procedural component that requires adequate investigation 
of any alleged violation "promptly, thoroughly and effectively through independent and 
impartial bodies" for "failure by a State party to investigate allegations of violations could in and 
of itself give rise to a separate breach of the Covenant." 476 The investigation of the Israeli armed 
forces referred to above lacks transparency and credibility. The failure of Israel to comply with 
the procedural requirement adds to the frustration and anger felt by survivors, who have received 
no credible explanation for what occurred. 

G. Attack on the Abd al-Dayem condolence tents 

1. The facts gathered by the Mission 

867. On 4 January 2009 the Israeli armed forces struck an ambulance in the Beit Lahia area 
with a flechette missile as it was attending a number of wounded persons who had been hit in an 
earlier attack. Those wounded in the first attack had also been hit by a flechette missile. As a 
result of the attack on the ambulance, one of the first-aid volunteers in the ambulance crew, 
Arafa Abd al-Dayem, suffered severe injuries. He died later the same afternoon. 

868. The following day, as is the custom, the family set up condolence tents where family and 
friends would pay their respects and comfort the grieving relatives. The family home is in Izbat 
Beit Hanoun, a built-up area in the north-east corner of the Gaza strip. It is located between 
Jabaliyah and Beit Hanoun, about 3 kilometres from the border with Israel both to the north and 
to the east. Although the Israeli armed forces had entered Gaza at the time of the incident, in this 
area they remained on the Israeli side of the "Green Line" border. Two tents were set up - one 
for male visitors and one for female visitors. They were positioned at about ten metres from each 
other. The male tent was outside the house of Mohammed Deeb Abd al-Dayem, the father of the 
ambulance driver. 

869. The tents were struck three times in two hours, again with flechette missiles. 

870. The Mission spoke to several of the witnesses who had attended and survived the attacks 
on the condolence tents. The Mission noted the great pride Arafa Abd al-Dayem' s father had in 
his son and the deep sense of loss he clearly felt. 

871. As regards the attacks on the condolence tents, witnesses stated that at around 7.30 a.m. 
on 5 January, the house of Mohammed Deeb Abd al-Dayem, was hit by a shell. The shell struck 
the fourth floor of the five-storey building causing the roof to collapse. 477 Three men at the 
gathering, including the father of the deceased, were slightly wounded and taken to the Kamal 



475 General comment No. 6 (1982), para. 3. 



476 Human Rights Committee, general comment No. 3 1 (2004), para. 15. See also Basic Principles and Guidelines 
on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and 
Serious Violations of International Humanitarian Law, para. 3 (b). 

477 Lestimony of IK/12 and IK/13 to the Mission on 30 June 2009. 



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Idwan hospital in Beit Lahia for treatment. They returned to the house at around 8.15 a.m. where 
a decision was taken by the mourners to end the condolence ceremony for fear of further attacks. 

872. The witness stated that at around 8.30 a.m. when the people were leaving the house of 
Mohammed Deeb Abd al-Dayem and moving towards the women's condolence tent, two 
flechette missiles struck within a few metres of the tent and less than half a minute apart. Around 
20 to 30 persons assembled there were injured. The injured include a 13-year-old boy who 
received a flechette injury to the right side of his head and a 33-year-old man who sustained 
injuries to the chest and head, his body punctuated with little holes according to a witness who 
saw his corpse being prepared for burial. A 22-year-old man was wounded in the abdomen, the 
chest and the head. A 16-year-old boy sustained injuries to the head and the neck. A 26-year-old 
man sustained injuries to his chest, head and left leg. These five persons died of their injuries. 
Another 17 persons present at the scene, including 14 men, two children (aged 17 and 11) and 
one woman were injured. 

873. IK/12, who survived the attack, still has several flechettes embedded in his body, 
including in his chest, and is unable to move freely without pain. 

874. Witnesses described that their sense of loss was aggravated by the fact that they could not 
access the injured or dead in hospitals as movement was restricted owing to continued shelling in 
and around the neighbourhood. Only two families out of the five families of the dead were able 
to conduct the burial according to their traditional customs and practices. 

2. The Israeli position 

875. The Israeli Government does not appear to have made any public comment on the 
allegations surrounding the Abd al-Dayem case, despite information about it being in the public 
domain for some time. 478 It has, however, recalled that the Israeli High Court of Justice has 
rejected the argument that flechette munitions are by their nature indiscriminate and maintains 
that subject to the general requirements of the rules of armed conflict their use is legal. 479 

3. Factual findings 

876. The Mission visited the area and the house of the Abd al-Dayem family. It spoke with the 
father of Arafa Abd al-Dayem, who had died as a result of the injuries received while working as 
a first-aid volunteer, and with several of the witnesses who had attended the condolence 
ceremonies. 

877. The account of the incidents was consistent and plausible. The fact that it was mainly men 
who were killed near the women's tent is explained by the fact that the strikes occurred precisely 
when the men were making their way across the road. 



478 The incident is mentioned in Amnesty International, Fuelling Conflict: Foreign Arms Supplies to Usrael/Gaza 
(February 2009). 

479 See "The operation in Gaza... ", paras. 431-435. 



A/HRC/12/48 
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878. The Mission can see nothing at all that points to the house of Mohammed Deeb Abd 
al-Dayem, or the condolence tents constituting a military objective. The repeated nature of the 
strikes indicates that there was a deliberate attempt to kill members of the group or the entire 
group, but no information about the purpose of the strikes has been forthcoming from the Israeli 
authorities. 

879. The Mission inspected the sites of the attacks and was left in no doubt that they had been 
entirely deliberate. There was a tent at each side of the wide road. The particular area is 
relatively open. 

4. Legal findings 

880. While international humanitarian law does not explicitly prohibit the use of flechettes in 
all circumstances, the principles of proportionality and precautions necessary in attack render 
their use illegal. Flechettes are 4-cm-long metal darts used as anti -personnel weapons that 
penetrate straight through human bone and can cause serious, often fatal, injuries. 480 Discharged 
from tank shells and aircraft or UAV-launched missiles, they are fired in salvo and are therefore 
an area anti-personnel weapon. They are, therefore, by their nature lacking in discrimination. 

881. The Mission notes that, during the condolence ceremony, flechette shells were fired in the 
vicinity of a large group of civilians, killing 5 and injuring more than 20. To consider the attacks 
indiscriminate would imply that there was a military objective underlying the attacks in the first 
place. The Mission has no information on which to base such a conclusion and notes the silence 
of the Israeli authorities on the incident. 

882. The Mission therefore considers that the families participating in the condolence 
ceremony were civilians and taking no active part in hostilities. The attacks on the condolence 
tent on the morning of 4 January were entirely unjustified and unnecessary. The attacks seemed 
designed to kill and maim the victims directly and otherwise to terrify the people in the area 
rather than to pursue any genuine military objective. 

883. The Mission finds that the attack on the Abd al-Dayem family condolence tents 
constitutes an intentional attack against the civilian population and civilian objects, wilful killing 
and the wilful infliction of suffering. In particular, the Mission believes that any party using a 
flechette missile in circumstances that are totally or predominantly civilian cannot fail to 
anticipate the severe and unnecessary suffering of the civilians affected. 

884. Based on the facts ascertained, the Mission therefore finds there to have been violations of 
customary international law in respect of a deliberate attack on civilians. It considers the attack 
was not only an attack intended to kill but also to spread terror among the civilian population, 
given the nature of the weapon used. (See art. 51 (2) of Additional Protocol I.) 



480 Amnesty International, Israel/Gaza: Operation "Cast Lead": 22 days of death and destruction (London, 2009) and 
B'Tselem, "Flechette shells: an illegal weapon", available at: http://www.btselem.org/english/firearms/flechette.asp . 



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885. The Mission also finds the attack to constitute a grave breach of the Fourth Geneva 
Convention with respect to article 147 regarding wilful killings and wilfully causing great 
suffering. 

XII. THE USE OF CERTAIN WEAPONS 

886. In the course of its inquiries, the Mission was made aware of the use of certain weapons 
by the Israeli armed forces. This chapter does not intend to present a comprehensive analysis of 
all the aspects raised on the kinds of weaponry used during the military operations. It is rather a 
summary of the Mission's views on a number of issues that arise from the foregoing chapters in 
relation to the obligation to take all feasible precautions in the choice of the means and methods 
of warfare. Many of the issues brought to the Mission's attention had already received scrutiny 
in the press or as a result of analysis carried out by a number of organizations. 481 Among these 
issues was the use of white phosphorous, the use of flechette missiles, the use of so-called dense 
inert metal explosive (DIME) munitions, and the use of depleted uranium. 

A. White phosphorous 

887. White phosphorous was used throughout the ground phase of the operations. The Israeli 
Government has set out its reasons for doing so, emphasizing that it is not only not a proscribed 
weapon under international law but that it was deployed with a high degree of success. 482 

888. It has explained that it used white phosphorous in two forms. One was as exploding 
munitions used as mortar shells by ground and naval forces. It says that in this form it was 
deployed only in unpopulated areas for marking and signalling purposes, and not in an anti- 
personnel capacity. It claims that, as a result of international concerns, it decided to stop using 
these munitions on 7 January 2009, although this was not required by international law. It also 
acknowledges the use of smoke projectiles containing felt wedges dipped in white phosphorous. 

889. The Mission understands the means of deploying these smoke projectiles was that they 
were fired as a canister shell by 155-mm howitzers. The projectile was timed or programmed to 
air-burst over its designated target. The canister shell then discharged a quantity of felt wedges 
impregnated with white phosphorous, usually in the order of 160 wedges in a fan-like dispersion 
earthwards. These wedges with white phosphorous, which is a pyrophoric chemical (that is, self- 
igniting when in contact with the air), emit smoke and continue to do so until the chemical is 
exhausted or deprived of air. Wedges of white phosphorous therefore remain active and have 
done so in Gaza for up to 21 and 24 days after discharge. It is technically possible that there are 



481 See, for example, Physicians for Human Rights-Israel, Report of the Independent Fact Finding Mission into 
violations in the Gaza Strip during the period 27.12.08-18.01.09, http://www.phr.org.il/phr/files/articlefile 

1 24 1 94993 5203 .pdf , Human Rights Watch, Rain of Fire: Israel's Unlawful Use of White Phosphorous in Gaza 
(March 2009), Amnesty International, Fuelling conflict: Foreign arms supplies to Israel/Gaza (February 2009), 
Report of the Independent Fact Finding Committee on Gaza, "No safe place...", paras. 206-207; Summary of the 
Report of the United Nations Headquarters Board of Inquiry, paras. 46-56, documentation provided by UNRWA. 

482 " jjjg p era tion in Gaza. . . ", paras. 406-430. The Mission addressed written questions to the Government of Israel 
regarding the use of white phosphorous during the military operations in Gaza. No reply was received. 



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still active white phosphorous wedges in Gaza - in water tanks or in sewage systems, for 
example. Children have subsequently been injured by coming in contact with such wedges. 

890. The Mission has recounted a number of incidents where it has particular concern about the 
choice to use white phosphorous. These incidents have been addressed in detail elsewhere and 
include the incidents at the UNRWA compound in Gaza City, the attacks on al-Quds and al- 
Wafa hospitals, also in Gaza City, and the use of white phosphorous in the attack on the Abu 
Halima family to the north of al-Atatra and in Khuz'a. 

89 1 . The Mission notes that, at least in the case of Abu Halima, 483 it appears that the white 
phosphorous was deployed by means of an exploding shell and not as a smoke projectile. This 
occurred several days after the apparent decision to stop using the munitions on 7 January 2009. 

892. The Mission has also spoken at some length to a number of local and international 
medical experts who treated patients in Gaza who suffered burns as a result of exposure to white 
phosphorous. 

893. The Mission need not repeat much of what it has already concluded on the choice to use 
white phosphorous in specific circumstances. It has already made clear that the risks it posed to 
the civilian population and civilian objects in the area under attack were excessive in relation to 
the specific military advantages sought. 

894. The Israeli Government has frequently pointed out the difficulties posed by fighting in 
built-up areas. One of the difficulties is the proximity of civilian premises to possible military 
targets. Commanders have no choice but to factor in the risk to such premises and the people 
inside them in deciding which weapons to use. The Mission finds that the Israeli armed forces 
were systematically reckless in determining to use white phosphorous in built-up areas and in 
particular in and around areas of particular importance to civilian health and safely. 

895. In addition to the reckless use of white phosphorous, the Mission must emphasize that it is 
concerned not only with the inordinate risks the Israeli armed forces took in using it, but also the 
damage it caused in fact. In speaking with medical experts and practitioners, it was impressed by 
the severity and sometimes untreatable nature of the burns caused by the substance. 

896. Several doctors told of how they believed they had dealt with a wound successfully only 
to find unexpected complications developing as a result of the phosphorous having caused 
deeper damage to tissue and organs than could be detected at the time. Several patients died, 
according to doctors, as a result of organ failure resulting from the burns. 

897. A senior doctor at al-Shifa hospital in Gaza City confirmed that Sabah, Ghada and Farah 
Abu Halima were admitted with serious burns and transferred to Egypt for treatment. The doctor 
believed that the burns were caused by contact with white phosphorous. 484 



483 See chap. XI. 

484 Mission interview on 12 June 2009. 



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898. The doctor commented that, before the military operations, the hospital was not familiar 
with white phosphorous burns. Staff became concerned when patients who had been sent home 
after treatment of apparently minor burns would come back in the following days with more 
serious wounds. They found that when they removed the bandages that had been applied to a 
wound that still contained fragments of white phosphorous, smoke would come from the wound, 
even hours after the injury. White phosphorous continues to burn as long as it is in contact with 
oxygen. 

899. International doctors working with al-Shifa staff, some of whom had worked in Lebanon 
during the 2006 war, identified white phosphorous as the cause of these injuries and the 
treatment was adapted accordingly. Any apparent white phosphorous burn was immediately 
covered with a wet sponge and the particles extracted. White phosphorous sticks to tissue, so all 
flesh and sometimes the muscle around the burn would have to be excised. 

900. In addition, the highly toxic substance, used so widely in civilian settings posed a real 
health threat to doctors dealing with patients. Medical staff reported to the Mission how even 
working in the areas where the phosphorous had been used made them feel sick, their lips would 
swell and they would become extremely thirsty and nauseous. 

901 . While accepting that white phosphorous is not at this stage proscribed under international 
law, the Mission considers that the repeated misuse of the substance by the Israeli armed forces 
during this operation calls into question the wisdom of allowing its continued use without some 
further degree of control. The Mission understands the need to use obscurants and illuminants for 
various reasons during military operations and especially in screening troops from observation or 
enemy fire. There are, however, other screening and illuminating means which are free from the 
toxicities, volatilities and hazards that are inherent in the chemical white phosphorous. The use 
of white phosphorous in any from in and around areas dedicated to the health and safety of 
civilians has been shown to carry very substantial risks. The Mission therefore believes that 
serious consideration should be given to banning the use of white phosphorous as an obscurant. 

B. Flechettes 485 

902. Flechettes are small, dart-like pieces of composite metal and are usually fired in salvo 
from canister projectiles or shells. Those fired and retrieved in Gaza were 4 cm long and 
approximately 2-4 mm wide, having a pointed end and a fletched end. 

903. Flechettes are used in an anti-personnel role and are discharged in such quantities that 
they cover an area forward of the canister shell. As an area weapon, on impact the darts will hit 
whatever is within a certain zone. They are 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. 



485 See "The operation in Gaza. . . ", paras. 43 1 -434. The report simply states that the weapons are not proscribed and 
this was reiterated by the Israeli High Court of Justice in 2002. Although it does not address specific allegations, it 
does state in general terms that allegations are still being investigated (para. 435). The Mission addressed questions 
to the Government of Israel regarding the use of flechettes during the military operations in Gaza. No reply was 
received. 



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904. Flechettes were fired during the military operations on several occasions by tanks and on 
at least one occasion from an air-to-surface missile of the "Helfire" type. 486 In all cases those hit 
by these devices were civilians and in one case were attending a condolence tent following the 
loss of a family member who was also killed by flechettes. 

905. Flechettes are known to bend, break or "tumble" on impact with human flesh. Such 
performances are often part of the flechettes design characteristic and are marketed as such. 
"Tumbling" in particular is adjudged to be a further determination of the projectiles 
"incapacitation" effect. 487 The Mission notes, however, that flechettes can be designed to be free 
of these post-impact characteristics if it is desired that they should do so. 

C. Alleged use of munitions causing a specific type of injury 

906. The Mission received reports from Palestinian and foreign doctors who operated in Gaza 
during the military operations of a strikingly high percentage of patients with severed legs as a 
result of the impact of projectiles launched by the Israeli armed forces. Dr. Mads Gilbert, a 
Norwegian anaesthetist, and Dr. Eric Fosse, a Norwegian surgeon, who carried out surgery in 
al-Shifa Hospital from 3 1 December 2008 to 10 January 2009, 488 described to the Mission the 
characteristics of the wounds. The amputations mostly occurred at waist height in children, 
generally lower in adults, and were combined with skin-deep, third-degree burns, four to six 
fingers upward from the amputation. Where the amputation took place, the flesh was cauterized 
as a result of the heat. The patients with these amputations had no shrapnel wounds, but red 
flashes on the abdomen and chest. The excision of large pieces of flesh was not infrequent in 
these patients. Dr. Gilbert added that the patients also suffered internal burns. This description 
was confirmed to the Mission by Palestinian surgeons. 

907. The Mission understands such injuries to be compatible with the impact of DIME 
weapons. DIME weapons consist of a carbon-fibre casing filled with a homogeneous mixture of 
an explosive material and small particles, basically a powder, of a heavy metal, for instance, a 
tungsten alloy. Upon detonation of the explosive, the casing disintegrates into extremely small, 
non-lethal fibres. The tungsten powder tears apart anything it hits. The impact of such weapons 
in general causes very severe wounds within a relatively limited diameter (compared to other 
projectiles) from the point of detonation. As the small heavy metal particles can slice through 
soft tissue and bone, survivors close to the lethal zone may have their limbs amputated and 
tungsten alloy particles embedded in their bodies. The probabilities of injuries to persons at a 
greater distance from the detonation point are reduced compared to more conventional 
projectiles. It is therefore also referred to as a "focused lethality munition". 489 



486 See Abduldayem case in chapter XI. 



487 William Kokinakis and Joseph Sperrazza, "Criteria for incapacitating soldiers with fragments and flechettes (U)". 
Ballistic Research Laboratories Report Number 1269, Aberdeen Proving Ground, Maryland (January 1965). 

488 Mads Gilbert and Eric Fosse, "Inside Gaza's al-Shifa hospital", The Lancet, vol. 373, No. 9659 (17 January 
2009), p. 200. 

489 The DIME munitions subject of discussion here are distinct from the missile described, for example, in the 

al Maqadmah mosque case. In that case the missile had been fitted with a micro-shrapnel fragmentation sleeve. The 



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908. The materials submitted to the Mission, including by the expert witness Lt. Col. Lane, 
point to specific medical concerns with regard to survivors of DIME weapon injuries. 490 The 
tungsten alloy particles are suspected to be highly carcinogenic and so small that they cannot be 
extracted from the patient's body. Dr. Gilbert noted that there had been no follow-up studies on 
the survivors of this type of amputation observed in Gaza and Lebanon since 2006 following 
Israeli military operations. There is some research suggesting that these patients might be at 
increased risk of cancer. These concerns apply equally to missile or projectile shrapnel of heavy 
metal such as tungsten or tungsten alloy which was used in at least two occasions in Gaza. The 
carcinogenic hazards are the same no matter the delivery means or the size or shape of the pieces 
of the metal that enter human flesh. 

D. Factual findings on the use of munitions causing a specific type of injury 

909. From the facts it gathered, the Mission finds that the allegations that DIME weapons were 
used by the Israeli armed forces in Gaza during the military operations require further 
clarification with regard to their use and, particularly, the health-care needs of survivors of the 
amputations attributed to DIME weapons. 

910. The Mission notes that DIME or heavy metal shrapnel weapons and weapons armed with 
heavy metal are not prohibited under international law as it currently stands. The "focused 
lethality" reportedly pursued in the development of DIME weapons could be seen as advancing 
compliance with the principle of distinction. The Mission also observes, however, that there 
remains a very high risk of harming civilians when using these weapons in built-up areas and 
that concerns have been expressed that DIME weapons could have a particularly adverse impact 
on the enjoyment of the right to health of survivors, which would go beyond the impact generally 
associated with being affected by anti-personnel weapons in an armed conflict. 

E. Allegations regarding the use of depleted and non-depleted uranium 
munitions by the Israeli armed forces 

911. The Mission received submissions and reviewed reports alleging the use of depleted 
uranium weapons by the Israeli armed forces during the military operations in Gaza. 491 While it 
cannot be excluded that such weapons were used, on the basis of the information received the 
Mission decided not to investigate the matter further. 

912. The Mission also received a submission which alleged that the analysis of the air filter 
taken from an ambulance which was in operation in the Beit Lahia area during the military 



micro -shrapnel consisted of tungsten or tungsten alloy cubes, which may have similar carcinogenic hazards as the 
powder or fibres in DIME. 

490 



Written submissions to the Mission by expert witness Lt. Col. Lane. 



491 



Arab Commission for Human Rights, Action des citoyens pour le desarmement nucleaire and International 
Coalition Against War Criminals, Preliminary report, Mission for Gaza, April 2009 by Jean-Francois Fechino, pp. 
55-60; Action des citoyens pour le desarmement nucleaire, On the use of radioactive weapons in the Gaza Strip 
during « Operation Cast Lead » (27 December 2008 - 18 January 2009), http : //www . acdn . net/ . 



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operations showed unusually high levels of non-depleted uranium and niobium in the air. 492 In 
view of the limited time available, the Mission could not further investigate this matter. 

XIII. ATTACKS ON THE FOUNDATIONS OF CIVILIAN LIFE IN GAZA: 
DESTRUCTION OF INDUSTRIAL INFRASTRUCTURE, FOOD 
PRODUCTION, WATER INSTALLATIONS, SEWAGE TREATMENT 
PLANTS AND HOUSING 

A. The destruction of el-Bader flour mill 

913. The Mission visited the site of the air strikes and surveyed the surrounding area in 
Sudaniyah, west of Jabaliyah. It met and interviewed the Hamada brothers, joint owners of the 
el-Bader flour mill, on four occasions. It spoke with representatives of the business community 
about the context and consequences of the strike on the flour mill. Mr. Hamada also testified at 
the public hearings in Gaza. 493 The Mission also addressed questions to the Government of Israel 
with regard to the military advantage pursued in attacking the el-Bader flour mill, but received 
no reply. 

914. The Hamada brothers are well-established businessmen and hold Businessman Cards, 
issued by the Israeli authorities to facilitate business travel to and from Israel. The flour mill is 
one of several businesses owned by the brothers on this site, including a tomato-canning factory 
and a factory for the production of nappies. These last two businesses were closed down 
sometime before the beginning of the Israeli military operations in Gaza, as the blockade led to a 
lack of supplies. According to Mr. Rashad Hamada, the tomato-canning business failed primarily 
because of the Israeli authorities' refusal to allow tins for canning into Gaza. The owners had 
transferred many employees from the businesses that had closed down to the flour mill so that 
these employees would continue to draw a salary. At the time of its destruction, the flour mill 
employed more than 50 people. 

915. The el-Bader flour mill began operations in 1999. 494 By 27 December 2008, it was the 
only one of Gaza's three flour mills still operating. The others had ceased operations owing to a 
lack of supplies. The el-Bader mill was able to continue in part because of its greater storage 
capacity. 



492 Submission by Chris Busby & Dai Williams. Battlefield Fallout: Evidence of Uranium and Niobium in Weapons 
Employed by the Israeli Military in Gaza. Analysis of Ambulance Air Filter and Bomb Crater. 

493 The Mission met Rashad Hamada and other members of the Palestinian business community on 3 June 2009 and 
interviewed him at the site of the el-Bader flour mill on 4 June 2009. Mr. Hamada testified at the public hearings in 
Gaza on 29 June 2009. 

494 Rashad Hamada stated that the aim of the business, besides making a profit, was to help Gaza to be more self- 
sustaining economically and thus to reduce dependence on external supplies. He indicated that the increase in 
running costs caused by the blockade gave Israeli competitors a considerable advantage. The cost of electricity, for 
example, was approximately 50 per cent higher than it was for his competitors in Israel. In addition, since the Israeli 
Government had closed the Erez crossing and all imports and exports had to go through the Kami crossing, transport 
costs had increased 10-fold. The increased cost for the consumer had, as a result, also been significant. The retail 
price of milled flour had risen, in his estimation, by perhaps as much as 10 per cent. 



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916. On 30 December 2008, a recorded warning was left on the flour mill's answering machine 
to the effect that the message was from the Israeli armed forces and that the building should be 
evacuated immediately. The approximately 45 workers in the mill at the time were evacuated at 
around 9.30 a.m. 

917. Following the evacuation, Mr. Hamada called a business associate in Israel, explained 
what had happened and asked him for advice. The business associate called him back, indicating 
that he had spoken with contacts in the Israeli armed forces on Mr. Hamada' s behalf, and had 
been told that, although the mill had been on a list of proposed targets, they had decided not to 
proceed with the strike. Mr. Hamada did not receive any information as to why his mill might 
have been targeted. 

918. As a result of these conversations and the fact that there had been no strike, the employees 
returned to work the next day. Work continued for a number of days until a second recorded 
warning was received on or around 4 January 2009. The flour mill was again evacuated and 

Mr. Hamada again contacted his business associate in Israel. The same scenario unfolded 
whereby Mr. Hamada received a call later on to the effect that the Israeli armed forces had 
informed his associate that the mill would not be hit. The employees returned to work in the light 
of the information and the fact that the warnings had not been put into effect. 

919. On 9 January, at around 3 or 4 a.m., the flour mill was hit by an air strike, possibly by an 
F-16. The missile struck the floor that housed one of the machines indispensable to the mill's 
functioning, completely destroying it. The guard who was on duty at the time called Mr. Hamada 
to inform him that the building had been hit and was on fire. He was unhurt. In the next 60 to 

90 minutes the mill was hit several times by missiles fired from an Apache helicopter. These 
missiles hit the upper floors of the factory, destroying key machinery. Adjoining buildings, 
including the grain store, were not hit. The strikes entirely disabled the factory and it has not 
been back in operation since. A large amount of grain remains at the site but cannot be 
processed. 

920. The Israeli armed forces occupied the disabled building until around 13 January. 
Hundreds of shells were found on its roof after the soldiers left. They appeared to be 40-mm 
grenade machine-gun spent cartridges. 

921 . The Hamada brothers rejected any suggestion that the building was at any time used for 
any purpose by Palestinian armed groups. They pointed out that all of the buildings and factories 
were surrounded by a high wall and manned by at least one guard at night. In addition, the Israeli 
authorities knew them as businessmen and they would not have been given Businessman Cards 
had there been any reason for the Israeli Government to suspect that they were involved with or 
supported armed groups. They were both adamant that their interest was and always had been 
industrial and commercial, and that the last thing they were prepared to do was put their business 
at risk. 

1. Factual findings 

922. The Mission found the Hamada brothers to be credible and reliable witnesses. It has no 
reason to doubt the veracity of their testimony. The information they provided was corroborated 



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by other representatives of the Gaza business community with whom the Mission discussed the 
context and consequences of the strike on the flour mill. 

923. The owners and employees of the flour mill were forced to evacuate the building twice 
because of the two recorded warnings left on the answerphone, which were not followed by air 
strikes. They were put into a state of fear as a result of the false alarms. When the mill was hit on 
9 January, the strike happened without prior warning, raising questions about the efficacy or 
seriousness of the warnings system used by the Israeli armed forces. 

924. The consequences of the strike on the flour mill were significant. Not only are all the 
employees out of work, the capacity of Gaza to produce milled flour, the most basic staple 
ingredient of the local diet, has been greatly diminished. As a result, the population of Gaza is 
now more dependent on the Israeli authorities' granting permission for flour and bread to enter 
the Gaza Strip. 

925. Available information does not suggest that the Israeli authorities have investigated the 
destruction of the flour mill. The Mission finds the version of the Hamada brothers to be credible 
and in line with the Israeli practice of leaving telephone warnings of impending attacks. 

2. Legal findings 

926. In considering the degree to which there may have been violations of international 
humanitarian law, the Mission refers to article 52 of Additional Protocol 1, which is set out in 
full above at chapter VII. The Mission also considers the following provisions to be relevant to 
its deliberations: 

Article 54 (1) and (2) of Additional Protocol I 

1 . Starvation of civilians as a method of warfare is prohibited. 

2. It is prohibited to attack, destroy, remove or render useless objects 
indispensable to the survival of the civilian population, such as foodstuffs, agricultural 
areas for the production of foodstuffs, crops, livestock, drinking water installations and 
supplies and irrigation works, for the specific purpose of denying them for their 
sustenance value to the civilian population or to the adverse party, whatever the motive, 
whether in order to starve out civilians, to cause them to move away, or for any other 
motive. 

Article 147 of the Fourth Geneva Convention provides: 

Grave breaches to which the preceding article relates shall be 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. 



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927. No other buildings in the industrial compound belonging to the Hamadas were damaged at 
the time of the strikes. It appears that the strikes on the flour mill were intentional and precise. 

928. The Hamada brothers are well-known businessmen. The Israeli authorities did not appear 
to consider them either before or after the military operations to be a threat, given the 
unrestricted issuance of their Businessman Cards and their ability to travel to Israel afterwards. 
The issuance of a Businessman Card is no trifle, especially in the context of the ongoing 
restrictions on trade. It is not plausible that the Israeli authorities would issue such a document to 
any party it regarded with suspicion. 

929. The only issue that remains to be examined is whether there was any reason for the flour 
mill to have been deemed a military objective on 9 January. The building was one of the tallest 
in the area and would have offered extensive views to the Israeli armed forces. The Mission 
notes that taking control of the building might be deemed a legitimate objective in the 
circumstances. However, by 9 January the Israeli armed forces were fully aware that the flour 
mill could be evacuated at short notice by using the warning message system. If the reason for 
attacking the mill was to gain control of it for observation and control purposes, it made no sense 
to bomb the principal machinery and to destroy the upper floors. There is also no suggestion that 
the Israeli armed forces considered the building to be a source of enemy fire. 

930. The nature of the strikes on the mill and in particular the precise targeting of crucial 
machinery on one of the mid-level floors suggests that the intention was to disable its productive 
capacity. There appears to be no plausible justification for the extensive damage to the flour mill 
if the sole objective was to take control of the building. It thus appears that the only purpose was 
to put an end to the production of flour in the Gaza Strip. 

93 1 . 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 would amount to a war crime. 

932. Having concluded that the strikes were without any military justification, and therefore 
wanton and unlawful, the Mission finds it useful to consider if there was any non-military 
purpose to the strikes. 

933. The aim of the strike, if not military, could only have been to destroy the local capacity to 
produce flour. The question is whether such deliberate destruction of the sole remaining flour- 
producing capacity in the Gaza Strip can be described as having been done for the purpose of 
denying sustenance to the civilian population. 

934. Article 54 (1) and (2) of Additional Protocol I reflect customary international law. 495 
Article 54 (2) prohibits acts whose specific purpose is the denial of sustenance for whatever 
reason, including starvation, forced displacement or anything else. In short, the motive for 
denying sustenance need not be to starve the civilian population. Indeed, the motive is irrelevant. 



495 In this respect the Mission agrees with the views expressed by ICRC in Customary Rules of International Law . 
pp. 189-193. 



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935. The civilian population is increasingly dependent on external humanitarian assistance, 
whose arrival depends on permission from the Israeli authorities. While it is not suggested that 
starvation is imminent, the health and welfare of the population at large have been profoundly 
affected by the blockade and the military operations. The only reason why starvation is not 
imminent however is precisely the provision of humanitarian assistance. Without such assistance 
Gaza's civilian population would not be able to feed itself 496 

936. States cannot escape their obligations not to deny the means of sustenance simply by 
presuming the international community will fill the gap they have created by deliberately 
destroying the existing capacity. 

937. From the facts ascertained by it, the Mission finds that the destruction of the mill was 
carried out for the purpose of denying sustenance to the civilian population, which is a violation 
of customary international law as reflected in article 54 (2) of Additional Protocol I and may 
constitute a war crime. 

3. The right to food 497 

938. The right to adequate food therefore requires the right to food security (through either 
self-production or adequate income) and the "fundamental" right to be free from hunger. 498 That 
Israel has not created a state of hunger is the result largely of the external aid provided to the 
population of Gaza. It has, however, severely affected the ability of Gazans both to produce food 
and to purchase it. 

939. Article 1 of the International Covenant on Civil and Political Rights states that "in no case 
may a people be deprived of its own means of subsistence." 

940. The right to adequate food is also reflected in the Convention on the Elimination of All 
Forms of Discrimination against Women, which requires State parties to guarantee to women 
"adequate nutrition during pregnancy and lactation." 

941. The Mission finds that, as a result of its actions to destroy food and water supplies and 
infrastructure, Israel has violated article 1 of the International Covenant on Civil and Political 
Rights, article 1 1 of the International Covenant on Economic, Social and Cultural Rights and 
article 12 (2) of the Convention on the Elimination of All Forms of Discrimination against 
Women. 



496 According to John Ging, 80 per cent of the Gazan population is dependent on UNRWA for food supplies. 
Interview with IRIN, 20 January 2009. 

497 See chap. XVII. 

498 See Randle C. DeFalco, "The right to food in Gaza: Israel's obligations under international law", Rutgers Law 
Record, vol. 35 (Spring 2009), available at: http://www.lawrecord.com/rutgers law record/2009/05/the -right -to- 
food-in-gaza-israels-obligations-under-international-law.html#sdfootnote24sym . 



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B. The destruction of the Sawafeary chicken farms 



942. On or around the night of 3 January 2009 Israeli troops arrived at a number of houses on 
al-Sekka Road in Zeytoun. The Mission interviewed four people who were direct witnesses to 
and victims of the events that occurred in the aftermath of their arrival. One witness was 
interviewed three times for a total of five hours and testified at the public hearings in Gaza. 499 
Another three were interviewed for an hour each. The Mission also visited the site of the 
Sawafeary chicken farms. Finally, the Mission addressed questions to the Government of Israel 
with regard to the military advantage pursued in attacking Mr. Sawafeary' s chicken farms, but 
received no reply. The following narrative reflects the eyewitness accounts. 

943. Sameh Sawafeary is a chicken farmer. His family has been in the egg production business 
for many years. He indicated that he, his brothers and his children owned 1 1 chicken farms in 
Zeytoun as of December 2008. The farms housed more than 100,000 chickens. 

944. On 3 January, Mr. Sawafeary, who was in his home on al-Sekka Road in the al-Samouni 
neighbourhood of Zeytoun with his family, was alerted by an al-Jazeera television news 
broadcast at around 8 p.m. that an Israeli ground invasion was imminent. 500 As a result, he took a 
number of precautions, including hiding money and other valuables. He then gathered around 

1 1 members of his family on the upper floor of the two-storey concrete house. At around 10 p.m. 
a missile struck the house, entering through the rear of the upper floor and exiting near the 
window of the living room opposite. The missile passed over several of Mr. Sawafeary' s 
children and grandchildren, who were lying on the floor. No one was injured. 

945. At around 1 1 p.m., Mr. Sawafeary heard the sound of helicopters flying over his house 
followed by soldiers landing on his roof. The soldiers remained there until 7 a.m. the next 
morning, firing what he described as "a rain of bullets". The family stayed, terrified, on the floor 
of an upstairs room. 

946. At around 7. 15 a.m. on 4 January, soldiers came into the upstairs room where the family 
was sheltering. They separated the men from the women and put the women in another room. 
The hands of the men and the boys were tied behind their backs, except for one of 

Mr. Sawafeary' s sons who has only one arm. After some time the commander told Mr. 
Sawafeary that they should walk south and "go to Rafah". The soldiers then searched the house. 
The 1 1 members of the household there at the time left the house as instructed. 

947. The Sawafeary family spent the following five days in terror. Together with neighbouring 
families they spent one night in the Abu Zur house and the following three in the nearby house 
of Mr. Rajab Mughrabi. During that time they suffered a number of violations at the hands of the 
Israeli armed forces, including the killing of the child Ibrahim Juha (see chap. XI). 

948. For the purposes of this section the Mission refers to the information it received about the 
systematic destruction that occurred for several days and which the witnesses were able to see 
during the time they were forced by the circumstances to remain in the house of Mr. Mughrabi. 



499 Interviewed by the Mission in Gaza on 3 June and 14 June and at the Gaza public hearing on 29 June. 

500 The previous night, a garage next door had been destroyed by an air strike. 



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949. Mr. Sawafeary and Mr. Mughrabi informed the Mission that they had watched Israeli 
armoured bulldozers systematically destroy land, crops, chickens and farm infrastructure. 

Mr. Mughrabi stated that he watched the bulldozers plough through fields with crops and trees, 
destroying everything in their path. Mr. Sawafeary stated that he saw less, as he was watching 
through a small opening because he was afraid of being seen and shot. He stated that he saw only 
two or three "tanks", but was not in a position to say whether there were more. He watched as 
the armoured bulldozers destroyed the chicken farms, crushing the wire mesh coops with the 
chickens inside. He could not see his own farms and the chickens he could see being destroyed 
were not his. He noted that the drivers of the tanks would spend hours flattening the chicken 
coops, sometimes stopping for coffee breaks, before resuming their work. 

950. When he left Mr. Mughrabi's house on 8 January, Mr. Sawafeary was able to see that his 
own farms did not appear to have been subjected to the destruction he had witnessed from inside 
the house. However, when he was able to return to his home after the Israeli withdrawal all 
31,000 of his chickens had been killed and the coops systematically flattened. 

95 1 . The Mission visited the site and saw the still flattened mesh coops, which had been 
covered with corrugated iron, as well as the remains of water tanks and machinery. The Mission 
was also shown the remnants of a small mosque near the end of one of the lines of the coops that 
had been destroyed. The remains of some dead chickens were still visible and Mr. Sawafeary 
stated that it had been a mammoth task to clean up the area when he returned. He pointed out 
that, in addition to the loss of livestock, the farm had been completely automated with significant 
investment in machinery, all of which had been destroyed, as had the plant for packaging the 
eggs. In short, the business had been razed to the ground. A protective grille, believed to be part 
of a D-9 armoured bulldozer, was found at the site. 



952. The Mission notes comments from one soldier to Breaking the Silence that appears to 
broadly corroborate the destruction in Zeytoun, probably at the hands of the Givati Brigade 



501 



953. The Mission inspected the inside of Mr. Sawafeary' s house and noted damage to the 
upper floor, where a missile had penetrated. It also observed a number of graffiti that appeared to 
have been written by Israeli troops. One said "424 Givati". There were others apparently written 
in Russian. 

954. Mr. Sawafeary told the Mission that he and his family together supplied approximately 
35 per cent of the egg market in Gaza. His own farms supplied over 10 per cent. He noted that it 
was not only his farms that had been destroyed but also most of his family's farms had been 
destroyed in the same way as his. He estimated that close to 100,000 chickens were killed in the 
process. 

955. The Mission has reviewed the relevant UNOSAT report and satellite imagery. One 
satellite image shows the Sawafeary chicken farms in June 2007 and another shows the area in 



501 Soldiers ' Testimonies... , testimony 37, p. 82. 



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January 2009. The images depict clearly the size of the farms and the surrounding area. The 
destruction is plainly visible in the second image. 502 

1. Factual findings 

956. The systematic destruction along with the large numbers of killings of civilians suggest 
premeditation and a high level of planning. Even in the context of a campaign that had many 
serious violations of international humanitarian law, the events in Zeytoun at this time stand out. 

957. The Mission finds that the destruction of the land and farms in the area was not justified 
by the pursuit of any military objective. The Israeli armed forces that arrived took control of the 
area within a matter of hours. They remained there until 18 January. The destruction of the land 
was not necessary to move the tanks or equipment or gain any particular visual advantage. 

958. An inspection of the scene indicates that the area is relatively sparsely populated. The 
Mission rejects the idea that the Sawafeary farm was destroyed in the pursuit of any military 
objective. 

959. The destruction of the farms appears to have been wanton and not militarily necessary. 
Not only were the coops with the chickens destroyed, but all of the plant and machinery of the 
farms as well. 

960. From the facts ascertained by it, the Mission finds that the Sawafeary chicken farms, the 
3 1,000 chickens and the plant and material necessary for the business were systematically and 
deliberately destroyed, and that this constituted a deliberate act of wanton destruction not 
justified by any military necessity. 

2. Legal findings 

961. The Mission makes the same findings regarding article 147 of the Fourth Geneva 
Convention and article 54 (2) of Additional Protocol I, article 1 of the International Covenant 
on Civil and Political Rights, article 1 1 of the International Covenant on Economic, Social and 
Cultural Rights and article 12 (2) of the Convention on the Elimination of All Forms of 
Discrimination against Women as it made above in relation to the el-Bader flour mill. 

C. The destruction of water and sewage installation 

1. The Gaza wastewater treatment plant, Road No. 10, 
al-Sheikh Ejlin, Gaza City 

962. The Mission visited the site of al-Sheikh Ejlin treatment plant on 3 and 17 June 2009. 
While there it interviewed the Director of the Coastal Municipalities Water Utility (CMWU), 
Mr. Munther Shublaq, inspected the plant, the site of lagoon No. 3 and the location where a large 
pipe carrying raw sewage had been ruptured. On 3 June, the Mission also visited a nearby farm 
that had been inundated with raw sewage and spoke to the farmer. The Mission interviewed Mr. 



502 UNOSAT satellite image analysis, 27 April 2009, p. 29. 



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Munther Shublaq a second time at length on 14 June 2009. The Mission took photographs of the 
area, and obtained plans and diagrams of the plant. Finally, the Mission addressed questions to 
the Government of Israel with regard to the military advantage pursued in attacking al-Sheikh 
Ejlin treatment plant, but received no reply. 

963 . The Gaza wastewater treatment plant is located in the coastal area south-west of Gaza 
City in the al-Sheikh Ejlin neighbourhood. It was built in 1977 and expanded with support from 
development cooperation. It consists of a number of installations, including offices, tanks and 
lagoons to store raw sewage. 

964. At some point between 3 and 10 January, a large missile hit the northernmost wall of 
lagoon No. 3, causing a massive outflow of raw sewage, which travelled a distance of 

1.2 kilometres and damaged 5.5 hectares of land, including agricultural land, according to 
UNO SAT satellite imagery. 

965. The chief of the plant, Mr. Jaoudat al-Dalou, explained to the Mission that when the 
Israeli ground offensive started around 3 January, all staff left for security reasons, as did the 
local residents of the sparsely populated area. Around 14 January, he received a phone call from 
someone in the vicinity of the plant reporting the strike on lagoon No. 3 and the flooding of 
neighbouring farmland by sewage. He contacted ICRC and PRCS to seek permission from the 
Israeli armed forces to go to the plant and carry out urgent repairs. Permission was denied on the 
grounds that the area was a "military zone". 

966. After the withdrawal of the Israeli armed forces, Mr. al-Dalou and his colleagues returned 
to al-Sheikh Ejlin to inspect the damage. They also saw what they believed to be unexploded 
bombs nearby and called the police to contact UNRWA to clear the area. Mr. al-Dalou found a 
crater five metres deep on the north-east side of lagoon No. 3. The damaged wall took over four 
days to repair at a cost of some US$ 158,000. More than 200,000 cubic metres of raw sewage 
had flowed into neighbouring farmland. 

967. In addition, a number of items, including an incubator, had been taken out of the plant and 
used by Israeli soldiers to make a barricade or protection wall. The damage done by the impact 
of bullets could still be seen on interior walls. Shattered windows had still not been replaced as 
glass was not available. Other damaged equipment included distillation equipment (damaged 
beyond repair) and a nitrogen ammonium machine. 

968. In interviews with the Mission, Mr. Munther Shublaq, who issued a CMWU report of the 
damage in January 2009, 503 confirmed that staff had left upon the arrival of Israeli ground forces 
and did not return until their withdrawal. He also indicated that on hearing news of the rupture of 
lagoon No. 3 he made several unsuccessful efforts to obtain permission to access the area to stop 
the damage caused by the outflow. 

969. The Mission noted breaks in a large raw-sewage pipe which ran to the north of lagoon 
No. 3. Plant officials suggested that clearly visible markings on the pipe had been made by tanks. 



503 CMWU, "Damage assessment report: water and waste water infrastructure and facilities", January 2009, 
available at: http://www.cmwu.ps/upload/Damages Assessment for W WW after War2009.pdf . 



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The routes of such pipes are marked by 1 .5 -metre-high, red and white poles to ensure that care is 
taken not to damage the pipes. The damage is very close to one such pole. 

970. The precise date of the strike on Lagoon No. 3 is uncertain because there were no 
witnesses in the area at the time. With satellite images it is, however, possible to establish that 
the strike must have occurred before 10 January 2009, as the images clearly show the massive 
outflow of sewage from the lagoon on that date. 

971. It is also possible to ascertain from the satellite images that the strike on the lagoon wall's 
eastern side created a breach of about 22 metres, through which the sewage flowed. The same 
images show the route of the outflow and where it stopped. The United Nations Environment 
Programme carried out a ground survey of the site on 30 January 2009 and data from that survey 
were added to the UNOSAT image interpretation. 

972. The plant occupies a position at the top of a hill and provides a view over a considerable 
area of open land, which is mainly farmland. As such, it might reasonably be considered to be of 
strategic interest. 

Factual findings 

973. The plant was effectively abandoned by staff when the ground invasion began. The strike 
on lagoon No. 3 must have occurred after the Israeli armed forces had taken control of the plant 
and the surrounding area as the employees interviewed confirmed that it was intact when they 
left the area. Although the damage to the raw-sewage pipe may have been caused by a tank 
stopping or passing over it, the Mission is not in a position to conclude that this was in fact what 
occurred. 

974. Notwithstanding the possible military advantage offered to the Israeli armed forces by the 
plant's location, the Mission cannot find any justification for striking the lagoon with what must 
have been a very powerful missile, sufficient to cause a breach 5 metres deep and 22 metres 
wide. It is highly unlikely that Palestinian armed groups could have taken up positions in or 
around the lagoon after the initial occupation of the area by Israeli armed forces: any such 
groups would have been exposed in the open area. The fact that the lagoon wall was struck 
precisely there where it would cause outflow of the raw sewage suggests that the strike was 
deliberate and premeditated. 

2. Namar wells group, Salah ad-Din Street, Jabaliyah refugee camp 

975. The Mission visited the site of the Namar wells group on 17 June 2009. 504 It interviewed 
engineer Ramadan Nai'm, CMWU water production and storage manager, and Ibrahim al-Ejjla, 
CMWU media coordinator. The Mission took photographs of the site. The Mission also 
addressed questions to the Government of Israel with regard to the military advantage pursued in 
attacking the Namar wells group, but received no reply. 



504 The Namar wells group consists of two of installations situated in Jabaliyah. See "Damage assessment report. 



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976. The wells group stood approximately 50 metres from the Jabaliyah refugee camp's 
administration building, which was also destroyed. A crater (approximately five metres wide) 
was still visible in the grounds belonging to the civil administration, with at its bottom the case 
of a rocket. 505 

977. This was a complex of two water well pumps, one in operation and another next to it as 
standby. Mr. Ramadan Nai'm told the Mission how proud CMWU had been of this water well, 
which produced more than 200 cubic metres per hour of the best-quality water in the area. The 
well supplied water to some 25,000 people in eastern and central Jabaliyah. The standby well 
pump was capable of pumping some 100 cubic metres of water. Both were completely destroyed 
on 27 December by an airstrike. 

978. In the Namar water wells complex there were not only pumping machines but also a 
180 kg generator, a fuel store, a reservoir chlorination unit, buildings and related equipment. 
These were also destroyed. 

979. The operator, Mr. Abdullah Ismail al-Zein, was killed in the air strike while he was 
working at the station. He was employed by the Municipality rather than by CMWU and had 
been working in the station for four years. He was blown to pieces and his identity was 
established when his shoes were found three days later. 

980. The strike also blew up the pipes connecting the wells to other water wells; incoming 
water spilled into the area for some 10 days before the pipes could be shut off. 

98 1 . Mr. Nai'm informed the Mission that he tried through the mediation of ICRC to get 
permission from the Israeli armed forces to repair the supply pipes, but permission was not 
granted and he was obliged to wait until the withdrawal of the Israeli armed forces. 

982. It was calculated that repairs to this group of water wells would cost around US$ 200,000, 
excluding the ancillary but necessary civil engineering works. 

983. Mr. Nai'm stated that at least 10 bombs were used to destroy the complex. Not a single 
wall was left intact. 

Factual findings 

984. From the facts ascertained by it, the Mission finds that the Namar wells were destroyed by 
multiple air strikes on the first day of the Israeli aerial attack and that civil administration 
buildings located at approximately 50 metres were also destroyed. 

985. The question remains as to whether the Israeli air strikes on the Namar wells group were 
deliberate or made in error. The Mission notes that the deployment systems and aircraft used in 
the strikes of 27 December (principally F-16 fighter jets and UAVs) are capable of a high degree 
of precision. It notes also that, by all accounts, a great deal of preparation had been put into 
determining and designating the targets of air strikes. The Mission considers it unlikely that a 
target the size of the Namar wells could have been hit by multiple strikes in error, given the 



505 Photographs of the damage can be found in "Damage assessment report. 



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nature of the deployment systems and the distance between the wells and any neighbouring 
buildings. The facts thus indicate that the strikes on the Namar wells group were intentional. 

986. The Mission found no grounds to suggest that there was any military advantage to be 
gained from hitting the wells. There was no suggestion that Palestinian armed groups had used 
the wells for any purpose. 

3. Legal findings 

987. From the facts ascertained by it, the Mission makes similar findings to those set out 
regarding the violation of article 147 of the Fourth Geneva Conventions and article 54 (2) of 
Additional Protocol I in relation to the destruction of the el-Bader flour mill. 

988. The right to food clearly includes the right to have adequate access to water. The Mission 
finds that this was denied to the people served by the Namar wells. It took some 75 days to repair 
them 

989. The Mission also finds that the killing of Mr. Abdullah Ismail al-Zein was unlawful and 
constitutes a violation of the right to life. Since targeting the wells constituted an act of wanton 
destruction, the incidental loss of life cannot be justified with regard to any military advantage. 

D. The destruction of housing 

990. The Mission received information about the extensive destruction of houses and private 
property during the military operations. 506 During its own visits to the Gaza Strip, the Mission 
witnessed the extent of the destruction caused by air strikes, mortar and artillery shelling, missile 
strikes, the operation of bulldozers and demolition charges. Some areas of the Gaza Strip were 
more heavily affected than others, but the Mission saw many piles of rubble where, prior to the 
military operations, there had been multi-storey houses. 

991. In many, if not most, of the incidents investigated by the Mission, described in chapters X, 
XI, XIV and XV, the victims it interviewed not only suffered the loss of loved ones (or were 
used as human shields or detained), but also saw their homes severely damaged or completely 
destroyed. For present purposes, the Mission will recall a few of the incidents relating to the 
destruction of housing. 

992. In some cases, the damage to or destruction of housing was arguably related to the 
conduct of military operations against Palestinian combatants. The houses of Majdi Abd Rabbo 



506 Information received includes the following reports: Al Mezan, Statistical Report on Persons Killed and Property 
Destroyed by Israeli Occupation Forces during Operation Cast Lead, June 2009, Al-Dameer Gaza, IOF Targets 
Civilian Premises and Cultural Properties during its Offensive on the Gaza Strip, May 2009, Submission to the 
Mission by Habitat International Coalition's Housing and Land Rights Network entitled "Targeting Shelters and 
Shelter Seekers during Operation Cast Lead in the Context of Israeli Military Practice.", and Submission to the 
Mission by the Centre on Housing Rights and Evictions (COHRE), June 2009, pp. 3-4. 



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and of his neighbour, HS/08, for instance, were destroyed in combat against the three Palestinian 
fighters hiding in HS/08' s house (see chap. XIV) 



507 



993. In many others, such as the shelling of the houses of Mahmoud Abd Rabbo al-Ajrami 
(chap. XIV), of the Sawafeary family (see above and chap. XI) and of the Abu Halima family 
(chap. XI), the houses were in the general path of the advancing Israeli ground troops. 

994. In a third group of cases, however, the facts ascertained by the Mission strongly suggest 
that housing was destroyed without their having any direct link to combat operations. On 

6 January 2009 at 1.45 a.m., Mr. Abu Askar received a phone call from the Israeli armed forces 
informing him that his family should evacuate their house as it was going to be targeted by an air 
strike. This warning was put into practice a few minutes later, when the home of about 
40 members of the extended Abu Askar family was destroyed by a missile (see chap. X). 

995. In Juhr ad-Dik, after the killing of Majda and Rayya Hajaj (chap. XI), the Israeli armed 
forces directed machine-gun fire at the house of the al-Safadi family for the entire afternoon of 
4 January 2009. The soldiers firing at the house had seen the Hajaj and al-Safadi families taking 
refuge there after their failed attempt to flee to Gaza City. When the Hajaj family managed to 
leave Juhr ad-Dik the following day, Israeli troops apparently took up position in Mr. Youssef 
Hajaj 's house, which they rendered completely uninhabitable, as the Mission saw for itself 
during a visit. His brother Sal eh Hajaj was even less fortunate. His house was reduced to a pile 
of rubble. 

996. Other neighbourhoods were destroyed during the last few days of the military operations 
as the Israeli armed forces were preparing to withdraw. For example, in an incident described 
below, after an attempt to demolish a cement-packaging plant in east Gaza, soldiers also 
destroyed the surrounding houses of the owner and the employees. The factory owner, Mr. Abu 
Jubbah, had hidden in the house for two days with seven members of his family. Suddenly, a 
direct strike on the side of the house warned them that the house was to be destroyed and they 
should leave. Waving a white flag, Mr. Abu Jubbah left the house in a rush, put his family in a 
car and drove off. On their way they saw tanks and soldiers in the area. Their house was 
destroyed by shelling. It took several strikes to destroy it, while the factory facilities and the 
fence were demolished by bulldozers. Housing for 55 factory workers was also demolished with 
bulldozers. 508 

997. Two further cases investigated by the Mission also exemplify the deliberate demolition of 
residential housing. The house of Wa'el al-Samouni, in which 21 family members died, was 
damaged but still standing when PRCS and ICRC extracted the wounded survivors in the 
afternoon of 7 January 2009 (chap. XI). When the family and rescuers returned to the area on 

18 January, the house was completely demolished. As the Mission could see for itself during its 
visit to the area as well as on photographs taken on that day, the manner in which the house had 
collapsed strongly indicated that this was the result of deliberate demolition and not of combat. 



507 The Mission is only noting that there was a factual link between combat and the destruction of the houses, it is 
not making a finding as to whether the destruction of the two civilian houses was proportionate to the military 
objective to be achieved. 

508 Mission interview with Mr. Atta Abu Jubbah, owner of the cement packaging factory. 



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Similarly, when Khalid Abd Rabbo returned to the home of his extended family in Izbat Abd 
Rabbo (which he had abandoned intact after the shooting of his daughters, see chap. XI) after the 
withdrawal of the Israeli armed forces, he found it completely demolished, as were the other 
houses in the vicinity. Khalid Abd Rabbo drew the Mission's attention to what appeared to be an 
anti-tank mine visible under the rubble of his neighbour's house, which had reportedly been used 
by the Israeli armed forces to cause the controlled explosion which brought down the building. 
As in the case of Wa'el al-Samouni's house, the way the buildings had collapsed strongly 
suggests that both Khaled Abd Rabbo' s house and that of his neighbour were deliberately 
demolished by explosives experts, rather than damaged during combat. Khaled Abd Rabbo 
added that, to his knowledge, his house had been demolished by the Israeli armed forces shortly 
before they withdrew from Gaza. 

1. Factual findings 

998. From the facts gathered, the Mission concludes that, in a number of cases it investigated, the 
Israeli armed forces launched direct attacks against residential houses, destroying them. Although 
the Mission does not have complete information on the circumstances prevailing in Juhr ad-Dik, 
al-Samouni neighbourhood and Izbat Abd Rabbo when the houses of the Hajaj, al-Samouni and 
Khalid Abd Rabbo families were destroyed, the information in its possession strongly suggests 
that they were destroyed outside of any combat engagements with Palestinian armed groups. Nor 
were these houses otherwise making any effective contribution to military action. These attacks 
deprived the extended families living there of shelter and of a significant part of their property. 

999. In other 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 these 
cases, although the facts gathered by the Mission do not suggest that the residential houses were 
directly targeted, it doubts whether there were military objectives pursued by the shelling. 

2. Corroboration of Mission's factual findings and widespread nature of housing 

destruction 

1000. Testimonies of Israeli soldiers deployed in Gaza during the military operations 
corroborate what the Mission saw for itself and heard from the witnesses it interviewed. Several 
of the soldiers interviewed by Breaking the Silence spoke of the unprecedented scale of 
destruction of houses and of "intentional, systematic destruction." 509 The testimonies of the 
soldiers appear to distinguish between three phases in or types of destruction of residential 
housing. First, there is the destruction which is incidental to the actual combat between the 
advancing Israeli forces and the Palestinian combatants or to Israeli forces directing fire at 
locations from which rockets were launched. 510 Second, there is destruction of houses for what 



509 Soldiers ' Testimonies... , pp. 59, 66, 69 and 101. One soldier recalls: "There was a point where D-9s were razing 
areas. It was amazing. At first you go in and see lots of houses. A week later, after the razing, you see the horizon 
further away, almost to the sea. They simply took down all the houses around so the terrorists would have nowhere 
else to hide." 

510 j n " jjjg bidden dimension of Palestinian war casualties. . . ", the Jerusalem Centre for Public Affairs argues that 
Palestinian houses were also demolished when Palestinian armed groups attacked houses in Gaza in which the 
Israeli armed forces had taken up positions. This argument is supported with reports of incidents gathered from 
websites of Palestinian armed groups, such as the following referring to the evening of 9 January 2009: "Three RPG 



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is termed "operational reasons". This is the deliberate destruction of houses from which fire had 
been opened on Israeli soldiers or which were suspected of being booby-trapped, containing 
tunnels or being used for weapons storage. 511 "Operational necessity" also embraced the 
destruction of houses which obstructed visibility for the Israeli armed forces or had a "strategic 
advantage" for them. 512 "In case of any doubt, takedown houses. You don't need confirmation 
for anything, if you want", were the instructions of one commander to his troops. 513 

1001. The third phase of destruction of housing was no longer tied to the "operational 
necessities" of the ongoing military operations. It was in view of "the day after" the Israeli armed 
forces withdrew from Gaza. In the words of one Israeli soldier: 

. . . then we were told there are houses to be demolished for the sake of "the day after". 
The day after is actually a thought that obviously we're going in for a limited period of 
time which could be a week and it might also be a few months. But it's not a longer span 
of time without defining what it is. And the rationale was that we want to come out with 
the area remaining sterile as far as we're concerned. And the best way to do this is by 
razing. That way we have good firing capacity, good visibility for observation, we can see 
anything, we control a very large part of the area and very effectively. This was the 
meaning of demolition for the sake of the day after. In practical terms this meant taking a 
house that is not implicated in any way, that its single sin is the fact that it is situated on 
top of a hill in the Gaza Strip. 514 

1002. Satellite imagery provided by UNOSAT at the Mission's request is consistent with the 
soldiers' testimonies. It shows, for instance, that 65 per cent of the destruction/damage of 
buildings in Rafah was caused by airstrikes between 1 1 and 18 January. By contrast, 54 per cent 
of the destruction/damage in Izbat Abd Rabbo (east Gaza) occurred between 6 and 10 January as 
the Israeli troops advanced into the city. 515 

1003. The UNOSAT reports on the destruction of buildings in al-Samouni neighbourhood and 
al-Atatra, two areas that suffered particularly heavy destruction of civilian housing and other 
buildings, show that most were destroyed during the last three days of the Israeli armed forces' 
presence on the ground in Gaza. In al-Samouni, out of 1 14 severely damaged or completely 
destroyed buildings, 60 were destroyed between 27 December 2008 and 10 January 2009 (i.e. the 

rockets and machine guns are fired against a house where IDF soldiers took up positions in the Ezvet Abd Rabbo 
region in the eastern sector of Jabalya" (p. 12). 

511 Soldiers ' Testimonies... , pp. 26, 35, 44, 56, 59, 61 ("Sometimes you know the house is empty. You know as far 
as you can know. Now if the house disrupts your defence line, you take it down with a tank or a bulldozer. We took 
an eight-storey house and the instruction was not to enter any doorway because it would be booby-trapped."), and 66 
("we were to raze as much as possible of the area. Such razing is a euphemism for intentional, systematic 
destruction, enabling total visibility. Razing was meant to give us the advantage of full control over fire and field of 
view, to see exactly what was happening throughout the zone. So that no one could hide anything from us."). 

512 Ibid., pp. 12,61, 100 and 101. 

513 Ibid., p. 56. 

514 Ibid., p. 66. See also p. 69. 

515 UNOSAT satellite imagery, pp. 14 ff. 



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air phase and the advance of the ground invasion), only 4 between 10 and 16 January and 
50 between 16 and 19 January 2009. 516 Similarly, in al-Atatra, out of 94 severely damaged or 
completely destroyed buildings, 36 were destroyed between 27 December 2008 and 10 January 
2009, only 6 between 10 and 16 January, and 52 between 16 and 19 January 2009 



517 



1004. These figures confirm that a first phase of extensive destruction of housing for the 
"operational necessity" of the advancing Israeli forces in these areas was followed by a period of 
relative idleness on the part of the Israeli bulldozers and explosives engineers. But during the last 
three days, aware of their imminent withdrawal, the Israeli armed forces engaged in another 
wave of systematic destruction of civilian buildings. 518 

3. Legal findings 

1005. From the facts ascertained by it, the Mission finds that the houses of the families of Sal eh 
Hajaj, of Wa'el al-Samouni, of Khalid Abd Rabbo and of Muhammad Fouad Abu Askar were 
subjected to direct attacks in spite of their unmistakably civilian nature. They did not present any 
apparent threat to the Israeli armed forces. These attacks violated the principle of distinction in 
customary international humanitarian law as codified in article 52 of Additional Protocol I. 

1006. Considering the facts it has gathered on the destruction of these houses from the soldiers' 
testimonies and the UNOSAT report, the Mission finds that the conduct of the Israeli armed 
forces in these cases amounted to the grave breach of "extensive destruction. . . of property, not 
justified by military necessity and carried out unlawfully and wantonly" under article 147 of the 
Fourth Geneva Convention. 

1007. Article 1 1 of the International Covenant on Economic, Social and Cultural Rights requires 
State parties to "recognize the right of everyone to an adequate standard of living for himself and 
his family, including adequate. . . housing". From the facts ascertained by it, the Mission finds 
that the Israeli armed forces violated the right to adequate housing of the families concerned. 

E. Analysis of the pattern of widespread destruction of economic 
and infrastructural targets 

1008. The Mission interviewed Mr. Amr Hamad, the Deputy General -Secretary of the 
Palestinian Federation of Industries, on three separate occasions, including at the public hearings 
in Gaza. The Mission also met a number of businessmen involved in fishing, strawberry farming, 
construction, including concrete and cement production and packaging, food and drinks 
production, car mechanics and repairs, livestock farming and refrigeration. While much of the 
information provided to the Mission focused on the effect of the restrictions Israel had imposed 



516 UNOSAT report, p. 17. 



517 Ibid., pp. 20-21. 

518 The Mission finally notes that, in its formal submission, Housing and Land Rights Network - Habitat 
International Coalition provides a detailed historical account of the Israeli army practices of targeting civilian homes 
and generating displaced populations that suggests a pattern that is not unique to the military operation in Gaza of 
December 2008 - January 2009 , but "consistent over time and across borders". 



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on the Gaza Strip for a considerable time before 27 December 2008, significant information was 
also provided on the effect of the attacks during the Israeli military operations in Gaza. 

1009. Mr. Amr Hamad indicated that 324 factories had been destroyed during the Israeli military 
operations at a cost of 40,000 jobs. In its detailed written report on the impact of the Israeli 
military activities, the Palestinian Federation of Industries points out that 200 businesses and 
factories were destroyed in Gaza City, 101 in northern Gaza and 20 in southern Gaza. Of the 
total 324 premises damaged, almost 30 per cent were linked to the metals and engineering sector, 
over 20 per cent to construction and 16 per cent to furniture businesses. Other sectors with 
significant losses were aluminium, food, sewing textiles, chemicals and cosmetics, plastics and 
rubber, paper and carton, and handicrafts. The Federation states that more than half were totally 
destroyed. 

1010. The Federation emphasized that "the Gaza Strip's most crucial industries, and ones which 
require the greatest investment, were most severely hit". 519 Eleven of the 324 premises struck by 
the Israeli armed forces were linked to the food industry and the losses incurred amount to some 
US$ 37 million, i.e. over one third of all the losses to the industrial sector. Similarly, while the 
construction sector suffered 69 of the 324 strikes, this represented just under 30 per cent of the 
total damage. The report notes that the majority of the losses resulting from the strikes on the 
324 premises related to machinery costs (50 per cent), while just over a quarter relate to the 
buildings themselves. 

1011. The Mission found the information provided by Mr. Hamad, as well as the report 
produced by the Palestinian Federation of Industries, to be credible and reliable. The Mission 
discussed and was satisfied by the methodology used in compiling the report, which was 
produced with the support of the Konrad Adenauer Foundation. The Mission also found that the 
testimony of businessmen whose premises had been struck or destroyed by the Israeli armed 
forces corroborate information provided by Mr. Hamad and the Palestinian Federation of 
Industries. 

1. Construction industry 

1012. One of the incidents Mr. Hamad referred to at the public hearing relates to the destruction 
of the only cement-packaging plant in Gaza. The Mission also interviewed its owner, Mr. Atta 
Abu Jubbah. 520 According to the reconstruction of the events, the Israeli armed forces began 
striking the plant from the air, damaging it significantly. Later ground forces — equipped with 
bulldozers and tanks — moved in and used mines and explosives to destroy the silo that used to 
contain 4,000 tons of cement. Helicopters launched rockets to destroy the main manufacturing 
line and fired holes into the cement containers. Bulldozers were used to destroy the factory walls. 
Over four days the factory was systematically destroyed. The Mission spoke with a number of 
other witnesses able to verify this account and considers it to be reliable. Among those witnesses 
was a civil engineer who inspected the site and confirmed that certain aspects of the destruction 



519 Page 14 of the Report of the Palestinian Federation of Industries. 

520 Mission interview with Mr. Atta Abu Jubbah, Gaza, 17 June 2009. 



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could have been achieved only by placing explosives inside the building. The silo had not been 
entirely destroyed in the aerial attacks, so explosives were attached to its supporting columns. 

1013. The plant was an important part of Gaza's construction industry. It produced cement in 
bags, selling 200 tons per day with a profit of US$ 15 per ton. The company is valued at some 
US$ 12 million. As mentioned above, the owner's house was also destroyed by rocket fire. 

1014. The owner is one of fewer than 100 businessmen who are in possession of the 
Businessman Card issued by Israel. The Mission notes that the plant was not destroyed during 
the aerial phase but was systematically reduced to rubble in a concerted effort over several days 
at the end of the military operations. 

1015. The destruction of Mr. Atta Abu Jubbah's plant forms part of what appears to have been 
a very deliberate strategy of attacking the construction industry. The Palestinian Federation of 
Industries also provides detail on the systematic and total destruction of the Abu Eida factories 
for ready -mix concrete. They were established in 1993. Nineteen of the 27 concrete factories 
were reported to have been destroyed, representing 85 per cent of the productive capacity. 

1016. The ability to produce and supply concrete in a context where external supplies are 
entirely controlled by Israel is a matter not only of economic importance but arguably one of 
human necessity to satisfy the basic need for shelter. Even if the population can get by in 
makeshift accommodation or by living in cramped conditions with their extended families, the 
capacity to repair the massive damage done to buildings without internally produced concrete is 
severely reduced. To the extent that concrete is allowed to enter at all, it is significantly more 
expensive than domestically produced concrete. 

1017. There appears to have been no military reason or justification for destroying the factory. 
This conclusion is borne out by the long established trading history of the owners and their 
recognition through the Businessman Cards. 

2. Destruction of the remaining food industry 

1018. As already reported, more than a third of all egg factories were destroyed by the Israeli 
armed forces. Other testimonies, for example that of the Mayor of al-Atatra,' 21 who referred to 
the destruction of his sister's chicken farms, indicated that a substantial part of the chicken 
farming industry appears to have been deliberately and systematically destroyed. 

1019. The Mission also notes the destruction of the al-Wadiyah Group's factories. The 
al-Wadiyah Group employed some 170 people, had been in business since 1954 and produced a 
variety of food and drinks. Dr. al-Wadiyah presented a detailed account of its activities and 
losses to the Mission. 522 



521 Mission interview with Muhammad Husein al-Atar, Mayor of al-Atatra, 3 June 2009. 

522 Mission interview with Dr. Yasser al-Wadia, 3 June 2009. 



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1020. The Mission found no reason to believe that the premises of the flour mill, chicken farms 
and food-processing plants that were destroyed had been used for purposes that would render 
them in any way military objectives. 

1021. The Mission also reviewed satellite images showing significant destruction of 
greenhouses throughout Gaza. 523 In total, it is estimated that over 30 hectares of greenhouses 
were demolished; 1 1.2 hectares were destroyed in Gaza City and 9.5 hectares in north Gaza. The 
Mission found that the large-scale and systematic destruction of greenhouses was not justified by 
any possible military objective. 

3. Destruction of water installations 

1022. Finally, in relation to the supply and treatment of water, the Mission analysed a limited 
number of cases. The strikes on the al-Sheikh Ejlin plant and on the Namar water wells have 
been described in some detail. The Mission also spoke at length with Mr. Munther Shublaq, who 
was responsible for the CMWU Damage Assessment Report. That report indicates that all types 
of water installations appeared to have been damaged to some extent during the Israeli 
operations, but notes especially that in some areas, particularly Beit Lahia, Jabaliyah, Beit 
Hanoun, part of Zeytoun, south of Rafah and the villages in the east, buildings, water and 
wastewater infrastructure and other facilities have been totally destroyed. "Those areas need a 
complete water and wastewater infrastructure which may require re-designing the networks 
based on the new population in the area". 524 

1023. Mr. Munther Shublaq noted that, although a number of wells had been struck, the worst 
effects had been as a result of the damage to water-treatment plants and sewage pipes. The 
Mission heard a number of reports that indicated that the strikes on plants, pipes, wells and tanks 
had put considerable pressure on the sanitation and water-supply system. 

1024. The Palestinian Authority claimed that 5,708 roof water storage tanks were destroyed, but 
it is not clear how many of these were on the roofs of the 4,036 houses that the Palestinian 
Authority stated were destroyed. 

1025. The Mission found that the targeting of water-related installations was not justified by any 
possible military objective. 

4. Conclusions 

1026. 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. In a 
number of testimonies given to Breaking the Silence, Israeli soldiers have described in detail the 
way in which what is at one point euphemistically referred to as "infrastructure work" was 



523 UNOSAT report, pp. 23-27. See also chapter XVII. 

524 "Damage assessment report. . . ", p. 8. 



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carried out. The deployment of bulldozers for systematic destruction is graphically recounted. 
Soldiers confirm in considerable detail information provided to the Mission by witnesses 



525 



1027. The Mission refers to chapter XVII, where it found that the systematic destruction of food 
production, water services and construction industries was related to the overall policy of 
disproportionate destruction of a significant part of Gaza's infrastructure. 

5. General legal findings 

1028. The Mission has made detailed findings in relation to each of the incidents set out above. 
However, given the nature of the systematic attacks on the food, water and infrastructure 
provision in Gaza during the military operations, the Mission also believes it is important to 
highlight the issue of State responsibility and the liability of Israel in relation to the 
internationally wrongful acts committed. 

1029. While the element of fault is controversial in the law of State responsibility, the Mission 
has found that in all of the cases described above both the act and the consequence were 
intended. 

1030. Israel had a number of duties in respect of its actions during the military operations. These 
included the general obligation reflected in article 52 of Additional Protocol I to ensure that 
civilian objects are not the objects of attack and to ensure the protection of objects indispensable 
to the survival of the civilian population. In addition, the customary norms of international law 
contained in article 54 (2) of Additional Protocol I require States not to destroy objects 
indispensable to the survival of the population. 

1031. Israel displayed a premeditated determination to achieve the objective of destruction. It is, 
therefore, responsible for the internationally wrongful acts it perpetrated in breach of the duties 
specified above. 

XIV. THE USE OF PALESTINIAN CIVILIANS AS HUMAN SHIELDS 

1032. The Mission received allegations that in two areas in north Gaza Israeli troops used 
Palestinian men as human shields whilst conducting house searches. The Palestinian men were 
allegedly forced to enter houses at gunpoint in front of or, in one case, instead of soldiers. The 
Mission investigated four cases. One incident took place in the Izbat Abd Rabbo neighbourhood 
and another in al-Salam neighbourhood, both east of Jabaliyah, close to the border with Israel. 
Two incidents took place in al-Israa neighbourhood, west of Beit Lahia. The Mission visited 



525 See Soldiers ' Testimonies... , testimony 17 on "infrastructure work" and the razing of orchards, p. 44 and 
testimony 29, p. 66. Note also testimony 46 on the practice of D-9 armoured bulldozers effectively working around 
the clock, largely destroying orchards (p. 100). The Mission notes that an issue raised on several occasions was the 
idea of the "day after" - the circumstances that Israel would find after finishing the military operations in terms of 
addressing future attacks from Gaza. Even if this could be conceived of as a longer-term strategic military goal, it is 
not a legitimate one in these circumstances. It does not meet the appropriate test for military advantage in the pursuit 
of certain objectives. Nor does it meet the test of military necessity referred to in the grave breaches provisions. See 
also chapter XVI. 



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each of the locations and interviewed a number of witnesses. In each case, the Mission found the 
allegations to be credible. 

A. The case of Majdi Abd Rabbo 

1033. To investigate this case, the Mission visited Izbat Abd Rabbo. The Mission interviewed 
Mr. Majdi Abd Rabbo 526 and several of his 
Majdi Abd Rabbo had given to two NGOs. 



Mr. Majdi Abd Rabbo 526 and several of his neighbours. 527 It also obtained two sworn statements 



1034. Majdi Abd Rabbo, a man aged 39 at the time of the incident, is married and the father of 
five children aged between 16 years and 14 months. He is an intelligence officer of the 
Palestinian Authority. He lived with his family in a house on the main street of Izbat Abd Rabbo, 
al-Quds Street, which in this section is commonly known as Izbat Abd Rabbo Street. His family 
house stood next to Salah ad-Din mosque. The home of the family of Khalid and Kawthar Abd 
Rabbo (see chap. XI) is less than 500 metres east of the Majdi Abd Rabbo family home. 

1035. Majdi Abd Rabbo recounted that, at around 9.30 a.m. on 5 January 2009, he heard loud 
banging on the outer door of the house. He asked who was at the door and someone responded in 
Arabic, ordering him to open the door. He opened the door and saw in front of him a handcuffed 
Palestinian man, whom he later found out to be HS/07, aged 20. A group of around 15 Israeli 
soldiers stood behind HS/07. One of the soldiers was holding a weapon to HS/07' s head. The 
soldiers pushed HS/07 to one side and four soldiers pointed their weapons at Majdi Abd Rabbo. 
They ordered him to undress down to his underwear. He was then told to dress again and they 
pushed him into the house. 

1036. The soldiers ordered him to call his children one by one. He started with his eldest son, 
aged 16, who was ordered by the soldiers to strip naked. The same process was followed with the 
two other sons, aged nine and eight. He then called his daughter, aged 14, who was told to press 
her clothes to her body and turn around. His wife, who was holding their baby daughter, was also 
told to press her clothes to her body, and then to take the baby's trousers off. 

1037. Majdi Abd Rabbo stated that the soldiers then forced him to walk in front of them as they 
searched the house, room by room, holding a firearm to his head. They questioned him about the 
house behind his. He told them that the house was empty and the owner, HS/08, had been absent 
for four years working in the Sudan. There was a small gap between the two houses, but they 
were joined at the roof. The soldiers gave him a sledgehammer, the kind used to break stones, 
and told him to break a hole through the dividing wall into HS/08' s house. This took around 

15 minutes. 

1038. From the roof, the soldiers entered HS/08' s house, pushing Majdi Abd Rabbo ahead of 
them down the stairs while they watched over his shoulders. They had descended only a few 
steps, however, when the soldiers apparently detected some movement in the house, started 



526 Mission interview with Majdi Abd Rabbo. 

Mission interviews with Muhamn 
witness HS/1 1 and Iyad Abd Rabbo. 



^ 27 Mission interviews with Muhammad Muhammad Abd Rabbo, Muhammad 'Aish Muhammad Abd Rabbo, 



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shouting, pulled Majdi Abd Rabbo back and rushed back into his house over the roof. Majdi Abd 
Rabbo heard some gun shots. 

1039. The soldiers ran out into the street, forcing Majdi Abd Rabbo and HS/07 with them while 
they were shooting. Both were taken into the adjacent mosque, where there were a large number 
of soldiers with military equipment. They were forced to sit down and then handcuffed. 

1040. The soldiers used the raised area of the mosque, from where the imam leads prayers, to 
fire at Majdi Abd Rabbo' s house and the houses next to it. He shouted at the soldiers to stop, as 
his family was still in the house. A soldier told him to shut up or they would shoot him. The 
shooting continued for around 30 minutes. After a lull, the soldiers warned that there would be a 
huge explosion and, indeed, about three minutes later there was a huge explosion. The explosion 
was followed by intensive gunfire and artillery shells. Majdi Abd Rabbo could not identify the 
source of the explosion. 528 

1041. In the meantime, he had been forced to break a hole in the wall of the mosque on the south 
side and into the neighbouring house. He had then been interrogated about his knowledge of 
Hamas and the location of tunnels. Subsequently, he was taken and detained together with a 
group of neighbours, men and women, in another house in the neighbourhood (the HS/09 family 
home). 

1042. When the shooting stopped, soldiers came to fetch him. He was taken to the road next to 
his house, to an empty area behind HS/08's house. He saw that HS/08's house and the entrance 
area of his house had been damaged. There were numerous soldiers standing next to the house, 
including some officers. He saw a senior officer talking to the soldiers who raided his house, and 
the officer then came to speak to him, through an Arabic-speaking soldier. The soldier said that 
they had killed the fighters inside the house and told him to go into the house and come back 
with their clothes and weapons. He protested, saying that he just wanted to find out if his family 
was safe. The officer told him to obey their orders if he wanted to see his family again. He 
refused to go, and was kicked and beaten by soldiers with their weapons until he gave in. 

1043. He approached HS/08's house from the street. The entrance was destroyed and blocked by 
rubble. He went back to the officer and told him that he could not get in. The officer told him to 
go through the roof instead. He went into his own house, which he found empty, except for a 
soldier. This reinforced his anxiety about the fate of his family. At this point, there was no major 
damage to his house. He crossed the roof and went down the stairs into HS/08's house. He was 
scared that the fighters would shoot at him and shouted, "I am a Palestinian, a neighbour. I am 
being forced to come into this house." In a room at the bottom of the stairs he found three armed 
young men wearing military camouflage and headbands of al-Qassam Brigades. They pointed 
their weapons at him. He told them that the Israeli soldiers thought that they had been killed 

and had sent him to check. He said that he was helpless as the soldiers had taken his wife and 



528 Other sources clarify that HS/08's house had been bombed by Israeli aircraft which had been called in by the 
soldiers in the mosque. Jerusalem Center for Public Affairs, "The hidden dimension of Palestinian war casualties in 
operation 'cast lead': Hamas fire on Palestinian areas", p. 20; Soldiers ' Testimonies... , p. 7 ("The [combat] 
helicopters fired anti-tank missiles" according to testimony 1 , which in this part appears to repeat an account heard 
from other soldiers). 



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children. The armed men told him that they had seen everything, and asked him to go back to the 
soldiers and tell them what he had seen. 

1044. He went back outside, again crossing over the roof of his house. As he approached the 
soldiers, they pointed their weapons at him and ordered him to stop, strip naked and turn around. 
After he dressed again, he told them what he had seen. Initially, the soldiers did not believe him. 
They asked how he knew that they were Hamas militants and he explained about their 
headbands. The soldiers asked about their weapons. He replied that they were carrying 
Kalashnikovs. The officer told him that, if he was lying, he would be shot dead. 

1045. He was handcuffed and taken back to the HS/09 family house for detention. At around 

3 p.m., he heard gunfire for around 30 minutes. The soldiers came back for him and took him to 
the same officer. This time he noticed different soldiers present with different military 
equipment. Through the translator, the officer told him that they had killed the militants, and told 
him to go in and bring back their bodies. Again he refused, saying "this is not my job, I don't 
want to die." He lied to them, saying that the three militants had told him that if he came back, 
they would kill him. The officer told him that, as they had already killed the militants, he should 
not worry. He added that they had fired two missiles into the house, which must have killed the 
militants. When he still resisted, he was beaten and kicked again, until he went into HS/08's 
house via the roof again. 

1046. He found the house very badly damaged. The bottom part of the stairs was missing. He 
again went in shouting, to alert the militants if they were still alive. He found them in the same 
room as before. Two were unharmed. The third was badly injured, covered in blood, with 
wounds to his shoulder and abdomen. They asked him what was going on outside and he told 
them that the area was fully occupied and the soldiers had taken numerous hostages, including 
his family. 

1047. The wounded man gave him his name (HS/10) and asked him to tell his family what had 
happened. Majdi Abd Rabbo promised to do so if he survived and later did so. Another of the 
three told him to tell the Israeli officer that, if he was a real man, he would come to them himself. 

1048. Majdi Abd Rabbo returned to the soldiers, who again forced him to strip naked before 
they approached him. He told the officer that two of the militants were unharmed. The officer 
swore at him and accused him of lying. Majdi Abd Rabbo then repeated the message from the 
militant, at which the officer and four other soldiers assaulted him with their weapons and 
insulted him. 

1049. The officer asked Majdi Abd Rabbo for his identity card. He replied that it was in his 
house but gave him the ID card number. The officer checked the number via an electronic 
device. Three minutes later the officer asked him if it was true that he worked with the head of 
Palestinian Authority's intelligence services, which he confirmed. The officer asked him if he 
was with Abu Mazen and a Fatah affiliate. He said he was. 

1050. The soldiers brought Majdi Abd Rabbo a megaphone and told him to use it to call the 
militants. He initially refused but did so under threat. As instructed, he told the militants to 
surrender, that ICRC was present and they could hand themselves over. There was no response. 



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105 1 . By then, night had fallen. Majdi Abd Rabbo was again handcuffed and taken back to the 
house of the HS/09 family. Thirty to forty minutes later, he heard shooting and a huge explosion. 
Soldiers came to tell him that they had bombed HS/08's house and ordered him to go in again 
and check on the fighters. 

1052. The Israeli armed forces had floodlit the area. Majdi Abd Rabbo found both his and 
HS/08's house very badly damaged. He could not use the roof of his house to enter HS/08's 
house, as it had collapsed. He went back to the soldiers, who again made him strip, this time to 
his underwear. He asked where his family was and said that he could not reach the fighters 
because of the damage to the houses. He accused the soldiers of destroying his house. The 
officer said that they had only hit HS/08's house. Majdi Abd Rabbo was then handcuffed. Until 
this time, he had been given no food or water, and it was very cold. After a while, his handcuffs 
were removed, he was told to dress and taken back to the HS/09 family house, to the room where 
he found that other people were being held. All the men and boys in this room were handcuffed 
and their ankles were tied. A soldier came with some drinking glasses and smashed them at the 
entrance to the room where they were being held. After smashing the glasses, he left again. 
Majdi Abd Rabbo had developed a severe headache. Another detainee, who spoke Hebrew, 
called a soldier to say that Majdi Abd Rabbo was sick and needed medicine. The soldier told him 
to keep quiet or he would be shot. A woman tied a scarf around Majdi Abd Rabbo' s head to ease 
the pain. 

1053. At around 7 a.m., Majdi Abd Rabbo was taken back to the soldiers outside. He was 
questioned about the number of fighters in the house. He confirmed that he had seen only three. 

1054. Two young Palestinian men from the neighbourhood were brought over. A soldier gave 
them a camera and told them to go into the house and take photos of the fighters. The two tried 
to refuse, and were beaten and kicked. The soldier showed them how to use the camera and they 
went into HS/08's house through the damaged main entrance. About 10 minutes later, they came 
back with photos of the three fighters. Two appeared to be dead, under rubble. The third was also 
trapped by rubble but appeared to be alive and was still holding his firearm. A soldier showed 
Majdi Abd Rabbo the photos and asked if these were the same people. He confirmed they were. 

1055. A soldier took the megaphone and told the fighters that they had 15 minutes to surrender, 
that the neighbourhood was under the control of the Israeli armed forces and that, if they did not 
surrender, they would hit the house with an air strike. 

1056. Fifteen minutes later, a soldier came with a dog, which had electronic gear attached to its 
body and what looked like a camera on its head. Another soldier had a small laptop. The dog 
handler sent the dog into the house. A few minutes later, shots were heard and the dog came 
running out. It had been shot and subsequently died. 

1057. At around 10.30 a.m. on 6 January 2009, a bulldozer arrived and started to level the 
house. The bulldozer moved from east to west, demolishing everything in its way. Majdi Abd 
Rabbo watched it demolish his own house and HS/08's house. He and the two young men were 
told to go back to the HS/09 house. They heard shooting. 



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1058. At around 3 p.m., he was taken back close to the site of his and HS/08's house. He told 
the Mission that he saw the bodies of the three fighters lying on the ground in the rubble of the 
house. 

1059. The soldiers then forced him to enter other houses on the street as they searched them. All 
the houses were empty. The soldiers forced him to go into the house alone initially and, when he 
came out, sent in a dog to search the house. During the house searches he managed to find some 
water to drink, the first drink he had had for two days. At midnight, the soldiers took him back to 
the HS/09 family house. 

1060. On 7 January, all the men and boys were taken from the HS/09 family house and 
transferred to the house of a cousin of Majdi Abd Rabbo's in the same neighbourhood. There 
were more than 100 men and boys, including members of his extended family, aged between 15 
and 70. The women were being held elsewhere. Majdi Abd Rabbo's immediate family members 
were not there, and he learnt that no one had seen them. He remained extremely anxious about 
their safety. 

1061 . At around 1 1 p.m., the men and boys in that house were told that they were going to be 
released, and that they should all walk west towards Jabaliyah, without turning left or right, on 
threat of being shot. They found Izbat Abd Rabbo Street severely damaged. Majdi Abd Rabbo 
went to his sister's house in Jabaliyah, where he was reunited with his wife and children on 

9 January 2009. His wife then told him that they had stayed for some hours in the house, during 
the first shooting on 5 January, and had then fled with a white flag to a neighbour's house. 

1062. Majdi Abd Rabbo told the Mission that he and his family were traumatized by what had 
happened to them and did not know what to do now, having lost their home and all their 
possessions. His children were all suffering psychologically and performing poorly at school. 
Five months later, in June 2009, Majdi Abd Rabbo was still having nightmares. 

1063. The Mission notes that his account to it implies that there were at least three other 
Palestinian men compelled by the Israeli armed forces to search houses. A journalist's account 
indicates that the author "spoke with eight residents of Izbat Abd Rabbo neighbourhood, who 
testified that they were made to accompany IDF soldiers on missions involving breaking into and 
searching houses [...]. The eight estimated that about 20 local people were made to carry out 
"escort and protection" missions of various kinds, [...], between January 5 and January 12. " 529 

B. The case of Abbas Ahmad Ibrahim Halawa 

1064. The Mission interviewed Mr. Abbas Ahmad Ibrahim Halawa and his wife,' 30 and visited 
al-Israa, the neighbourhood west of Beit Lahia, where his house is located. 

1065. When hostilities started on 27 December 2008, Abbas Ahmad Ibrahim Halawa, aged 59, 
asked his family to leave the home and stayed behind alone. On 9 January 2009, after a day of 



529 Haaretz, "Gazans: IDF used us as 'human shields' during offensive", 28 March 2008, available at: 
http://www.haaretz.com/hasen/spages/1065594.html . 

530 Mission interviews with Abbas Ahmad Ibrahim Halawa and his wife. 



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shelling, the ground forces invaded the north-west of his neighbourhood. At around 0.05 a.m. on 
5 January 2009, the Israeli armed forces stormed into his house. He was hiding under the 
staircase and screamed when they reached him, putting his hands in the air. The soldiers had 
torch lights on their rifles and helmets, and their faces were painted black. 

1066. At gunpoint, the soldiers ordered him to take off his clothes, which he did except for his 
underwear. They made him turn around and ordered him to dress again. By this time there were 
some 40 soldiers in the house. His hands were tied behind his back, his legs were tied and he was 
blindfolded. He was severely beaten. He was then taken to a neighbour's house. He told the 
soldiers that he had bad asthma, but they would not allow him to take his inhaler. 

1067. In the neighbour's house, he was questioned by an Israeli officer about the whereabouts of 
Gilad Shalit and the location of Hamas tunnels and rocket launch sites. The soldiers threatened to 
blow up his house if he did not tell them. He insisted that he did not know the answers to their 
questions. He pleaded that he had worked in Israel for 30 years and had built hundreds of houses 
there. He speaks fluent Hebrew and communicated with the soldiers in Hebrew. 

1068. After about 30 minutes, he was taken to a different location in the vicinity and made to sit 
down. After another 15 minutes, he was again made to walk to a different location. He was still 
blindfolded; the ties binding his legs had been loosened slightly, but walking was difficult. One 
of the soldiers was directing his footsteps while holding him at gunpoint. 

1069. In a house that he subsequently recognized as that of a neighbour, one of the soldiers 
untied his legs and the blindfold. His hands remained tied. He saw a number of soldiers in the 
house and around 15 officers sitting in the living room. They had maps and radios in front of 
them. One of the officers (there were three stripes on the shoulder of his uniform) asked him to 
identify his house on the map, and then asked him about the location of tunnels and rocket 
launching sites. He answered that he did not know. He was blindfolded again but he could see a 
little through the blindfold. 

1070. He was then taken out of the house and onto the road. As previously, he was held from 
behind, a weapon pressed against his back or the back of his head. Due to the damage to the 
roads caused by the tanks and other military equipment, walking was difficult. For about two 
hours he walked around as directed by the soldiers. They would stop and call: "Who is in the 
house?" They would then open fire, force Abbas Ahmad Ibrahim Halawa to go into the house 
while they were gathering behind him, and then leave the house again after the search. He was 
made to go into five houses in this way. They did not find anyone in any of the houses. 

1071. Thereafter, they walked and stopped for about an hour without any shooting. Finally, he 
was ordered to sit down on the ground and covered with a blanket. He was held for two days at 
this location, which he identified to be near the American School in north Gaza, close to an 
Israeli armed forces' tank position. During the two days he was given neither food nor water. 

1072. He was then transported, blindfolded, in what he believes was a tank, for about 90 minutes 
to another location which he believes was Netsalim (Nitzarim), where he was thrown on the 
ground. He was kept there for two days and nights in the open, during which time the soldiers 
refused to give him a blanket. During the two days he was again interrogated several times about 



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the location of Hamas tunnels and rockets, and about Gilad Shalit's whereabouts. He was beaten 
and threatened with death if he did not provide the information. 

1073. At around 5 p.m. on the second day he was taken in a closed vehicle, which he believes 
was a truck, to a detention centre inside Israel, which he heard a soldier refer to as Telmund. He 
was fingerprinted and taken to see a doctor, whom he told that he was suffering from acute 
asthma and severe pain from a back injury caused by the beating. 531 The doctor did not give him 
medication. He was placed in a cell, where he was again refused a blanket. 

1074. He was interrogated again at the detention centre, this time by civilians and then 
transferred to another location, where he was held together with some 50 Arabs. After two days, 
he was taken to the Erez border crossing and told to walk back into Gaza. Soldiers shot around 
his feet and over his head as he walked. He managed to reach his sister's house, where he 
collapsed and was taken to al-Shifa hospital. 

1075. When he returned to his house, he found it vandalized. When the Mission spoke to him, 
he was still traumatized from the treatment he had undergone at the hands of the Israeli armed 
forces. 

C. The case of Mahmoud Abd Rabbo al-Ajrami 

1076. Mr. Mahmoud Abd Rabbo al-Ajrami was interviewed twice, at length, by the Mission. He 
also testified at the public hearing in Gaza on 30 June 2009. 

1077. Mahmoud Abd Rabbo al-Ajrami is a former civil servant, whose last position was as 
Assistant Foreign Minister. He resigned from the Ministry when Hamas took over Gaza and has 
not worked since. He, his wife and 15-year-old daughter lived in a house in the same 
neighbourhood west of Beit Lahia as Abbas Ahmad Ibrahim Halawa. The area was shelled 
during the initial air strikes of the Israeli campaign. Mahmoud Abd Rabbo al-Ajrami' s home was 
directly hit for the first time on 2 or 3 January 2009, according to him by tank shells and by 
missiles fired by Apache helicopters, which seriously damaged external and internal walls. 
Tanks came into the area on 3 or 4 January and initially were positioned around 500 metres north 
of his house. 

1078. He stayed in the house with his wife and daughter. As he told the Mission, he had decided 
not to leave because of his father's experience of leaving his home in Israel and not being able to 
return. On an unspecified date during the first week of January, however, he decided that this 
was proving too difficult for his daughter. He called a taxi and his daughter moved to the house 
of an uncle in a safer area. 

1079. On 9 January 2009, shelling of the area was particularly intensive. According to 
Mahmoud Abd Rabbo al-Ajrami, 10 tank shells hit his house. His wife received light injuries 
from shrapnel and broken glass. In the night of 9 to 10 January 2009, around midnight, soldiers 
made a violent entry into their home, where he and his wife were sheltering on the ground floor, 



531 The Mission was provided medical documentation supporting his statement that he suffered two fractured 
vertebrae as a result of the beating by Israeli soldiers. He now has to wear a corset to support his spine. 



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underneath the stairs. They threw a grenade into the entrance on the west side of the building and 
entered the house shooting. 

1080. An officer ordered Mahmoud Abd Rabbo al-Ajrami to lift his robe (he was in 
nightclothes) and turn around. He then told Mahmoud Abd Rabbo al-Ajrami's wife to press her 
clothes close to her body and turn around. Mahmoud Abd Rabbo al-Ajrami and his wife were 
then taken to a neighbouring house where soldiers took his identity card and checked his identity 
on a laptop computer. An officer interrogated him about the location of Hamas tunnels, rockets, 
Palestinian fighters and Gilad Shalit. He responded that he could not provide that information 
because he did not know, that he was previously a member of the Fatah administration. The 
soldier responded: "You are Hamas; Hamas killed all Fatah and others in Gaza, so you must be 
Hamas." Mahmoud Abd Rabbo al-Ajrami insisted that he was a civilian. The officer told him 
again that he had five minutes in which to give him information or he would be shot. Five 
minutes later, he again responded that he did not know anything about the questions asked. 

1081. He was handcuffed with his hands in front of him and blindfolded. Two or three soldiers 
took him by the shoulders and forced him to walk in front of them. His wife tried to go with him 
but they pushed her back into the room. It was by now around 2 a.m. The soldiers took him up to 
the second floor of the building and threw him down. He landed on rubble and fainted. When he 
came to, he had severe pain in his right side and had difficulty breathing. He found out later that 
he had broken four ribs and he had severe bruising down his right leg. Four soldiers forced him 
to stand. He was moaning with the pain but did not want them to hear. It was raining and still 
dark. The soldiers pushed him against a wall and walked away from him. He thought that they 
were going to shoot him. He was still blindfolded. 

1082. In the early morning hours, the soldiers took him and another man (whom he subsequently 
found out to be his neighbour Abbas Ahmad Ibrahim Halawa) and forced them to walk in front 
of them. Mahmoud Abd Rabbo al-Ajrami was blindfolded and a gun was held to the back of his 
head. He thinks that there were around 25 soldiers behind him and the other Palestinian man. 
Having walked in this way for a while, both he and the other man were forced to enter several 
houses with the soldiers taking cover behind them. In Mahmoud Abd Rabbo al-Ajrami's 
recollection, on six or seven occasions the soldiers opened fire. They did not find anyone in any 
of the houses. 

1083. After these house searches, the soldiers, Mahmoud Abd Rabbo al-Ajrami and Abbas 
Ahmad Ibrahim Halawa walked north towards a place called Dogit, a former settlement. He 
could hear the movement of tanks and see tank positions. Both men were forced to sit on the 
ground. Mahmoud Abd Rabbo al-Ajrami had his hands handcuffed in front; the other man had 
his hands handcuffed behind him. It was still raining, very cold, and Mahmoud Abd Rabbo al- 
Ajrami's ribs and leg were very stiff and painful. They were left there without food, water or 
blankets until morning. At around 10 a.m., soldiers took Abbas Ahmad Ibrahim Halawa for 
interrogation. 

1084. During that and the following day, Mahmoud Abd Rabbo al-Ajrami was also interrogated, 
by a senior officer. On the second day, he was taken to the edge of the camp and told to walk 
back south into Gaza City. He was able to reach the outskirts of the city and was helped by a 
stranger to reach a family member's house, from where he was taken to al-Shifa hospital. 



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1085. On returning to his house, he found it ransacked and vandalized. He recounted that many 
items of value had been stolen, including jewellery and electronic equipment. 

D. The case of AD/03 

1086. The summary of AD/03 's case is based on his interview by the Mission. His case is also 
discussed in chapter XV, which gives more details on his case. 

1087. AD/03 is a resident of al-Salam neighbourhood, located east of Jabaliyah, close to the 
eastern border with Israel. On 8 January, at around noon, the Israeli armed forces made an 
announcement ordering all residents of the area to evacuate their homes and come out in the 
street. The men were separated from the women and children, the men being told to line up 
against a wall. They were told to lift their shirts and to strip to their underwear. They remained in 
that position, stripped and lined up against the wall for approximately 15 minutes. The women 
and children were told to go to Jabaliyah. Shortly afterwards, AD/03 and three others (his 
brother, a cousin and an unknown man) were made to lie on the ground, were blindfolded and 
their hands were tied behind their backs with plastic strips. They were detained overnight in a 
house, in a room together with three men who identified themselves as residents of Izbat Abd 
Rabbo. The next morning, on 9 January, their blindfolds were removed and the seven men were 
interrogated. 

1088. On the second day of detention, the Israeli armed forces began to use a number of the 
detainees as human shields. At this point the detainees had been without food and without sleep 
for a day. There were constant death threats and insults. To carry out house searches, the Israelis 
took off AD/03 's blindfold but he remained handcuffed. He was forced to walk in front of the 
soldiers and told that, if he saw someone in the house but failed to tell the Israeli soldiers, he 
would be killed. He was instructed to search each room in each house cupboard by cupboard. 
After one house was completed, he was taken to another house with a gun pressed against his 
head and told to carry out the same search there. He was punched, slapped and insulted 
throughout the process. AD/03 indicates that he was forced to do this twice while the group was 
held in this house for eight days. Others were also required to do it. On the first occasion he was 
forced to carry out searches in three houses and on the second occasion in four houses. AD/03 
estimates that each time he was involved in searches for between one hour and one and a half 
hours. At no point did he come across any explosive devices or armed group members. 

E. Denial of the allegations by the Israeli armed forces 

1089. Reacting to reports of the use of civilian men as human shields in Izbat Abd Rabbo, the 
Israeli armed forces' Spokesperson's Unit told an Israeli journalist: 

The IDF is a moral army and its soldiers operate according to the spirit and values 
of the IDF, and we suggest a thorough examination of the allegations of Palestinian 
elements with vested interests. The IDF troops were instructed unequivocally not to make 
use of the civilian population within the combat framework for any purpose whatsoever, 
certainly not as "human shields." 

Following an examination with the commanders of the forces that were in the area 
in question, no evidence was found of the cases mentioned. Anyone who tries to accuse 



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the IDF of actions of this kind creates a mistaken and misleading impression of the IDF 
and its fighters, who operate according to moral criteria and international law. 532 

F. Factual findings 

1090. The Mission found the foregoing witnesses to be credible and reliable. It has no reason to 
doubt the veracity of their accounts and found that the different stories serve to support the 
allegation that Palestinians were used as human shields. 

1091. The Mission notes in particular that Mr. Majdi Abd Rabbo has told the story of his 
experience from 5 to 7 January 2009 to several NGOs, to several journalists and to the Mission 
without any material inconsistencies. There are some minor inconsistencies, which are not, in the 
opinion of the Mission, sufficiently weighty to cast doubt on the general reliability of Majdi Abd 
Rabbo. There are also, not surprisingly, some elements of the long account which appear in some 
versions and not in others. The Mission finds that these inconsistencies do not undermine the 
credibility of Majdi Abd Rabbo' s account. 

1092. The Mission further notes that one of the Israeli soldiers interviewed by the NGO 
Breaking the Silence recounts the case of Majdi Abd Rabbo. The soldier describes the case in 
great detail and mentions having personally met Majdi Abd Rabbo. 533 Finally, the Mission notes 
that the submission it has received from the Jerusalem Center for Public Affairs, while not 
containing a summary of Majdi Abd Rabbo' s role in the incident in which the three Palestinian 
fighters were killed, also refers to the incident. 534 



532 "Gazans: IDF used us as 'human shields' during offensive". 

533 The Mission notes, however, that the soldier does not appear to have been a direct witness to the incident, but 
rather heard it from others and subsequently met Majdi Abd Rabbo. Soldiers ' Testimonies... , pp. 7-8: 

"Testimony 1 [. . . ] In one case, our men tried to get them to come out, then they opened fire, fired some anti-tank 
missiles at the house and at some point brought in a D-9, bulldozer, and combat helicopters. There were three armed 
men inside. The helicopters fired anti-tank missiles and again the neighbour was sent in. At first he told them that 
nothing had happened to them yet, they were still in there. Again helicopters were summoned and fired, I don't 
know at what stage of escalation (in the use of force). The neighbour was sent in once again. He said that two were 
dead and one was still alive, so a D-9 was brought in and started demolishing the house over him until the neighbour 
went in, the last armed man came out and was caught and passed on to the Shabak. [. . . ] [Some civilians] were made 
to smash walls with 5-kilo sledgehammers. There was a wall around a yard where the force didn't want to use the 
gate, it needed an alternative opening for fear of booby-traps or any other device. So the "Johnnies" themselves were 
required to bang open another hole with a sledgehammer. Talking of such things, by the way, there was a story 
published by Amira Hass in Haaretz daily newspaper, about Jebalya where a guy tells exactly the same thing. It's the 
guy who was sent. I saw him afterwards, the guy who was made to go into that house three times. He also told us 
about being given sledgehammers to break walls." 

The newspaper article referred to by this testimony is "Gazans: IDF used us as 'human shields' during offensive". 
The Mission notes that the soldier who gave testimony 1 states that one of the three Palestinian combatants was 
arrested, while Majdi Abd Rabbo 's testimony is that he saw all three of them dead. 

534 "jjjg bidden dimension. . . " p. 20. This submission is a "war diary" pieced together "from detailed data that both 
Hamas and its Izz ad-Din Qassam Brigades have published." That this incident and the story of Majdi Abd Rabbo 
are the same is corroborated by comparing the three names of the killed Palestinian combatants mentioned in both 
accounts (one name is identical, the second very similar). 



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1093. In more general terms, the Mission notes that the statements of the men used as human 
shields by the Israeli armed forces during house searches are corroborated by statements made 
by Israeli soldiers to the NGO Breaking the Silence. The soldier providing testimony 1 speaks of 
the "Johnnie procedure": "It was the first week of the war, fighting was intense, there were 
explosive charges to expose, tunnels in open spaces and armed men inside houses. [. . .] Close in 
on each house. The method used has a new name now - no longer 'neighbour procedure.' Now 
people are called 'Johnnie.' They're Palestinian civilians, and they're called Johnnies [. . .] To 
every house we close in on, we send the neighbour in, 'the Johnnie,' and if there are armed men 
inside, we start, like working the 'pressure cooker' in the West Bank." This soldier then mentions 
that some commanders were "bothered" by the fact that "civilians were used to a greater extent 
than just sending them into houses." A second soldier interviewed by Breaking the Silence, 
testimony 17, appears to have discussed the "Johnnie procedure" at length, but his testimony was 
censored or otherwise cut in that respect, so that we can only read: "They [civilians found in 
houses] were used as 'Johnnies' (at a different point in the interview the witness described the 
'Johnnie' procedure, using Palestinian civilians as human shields during house searches), and 
then released, and we're finding them in later searches." 535 

1094. The Mission thus finds that while these testimonies do not confirm the details of the 
specific cases it investigated, they strongly support the general allegation that the Israeli armed 
forces engaged in the practice of compelling Palestinian civilians to accompany them on house 
searches. 

1095. In conclusion, from the facts it gathered, the Mission finds that Messrs. Majdi Abd Rabbo, 
Abbas Ahmad Ibrahim Halawa, Mahmoud Abd Rabbo al-Ajrami and AD/03 were captured by 
the Israeli armed forces while they were in their homes, in some cases together with their 
families, and were then forced at gunpoint to search houses together with the Israeli armed 
forces. The Mission also finds on the basis of those facts that they were all subject to cruel, 
inhuman and degrading treatment during their captivity. 

G. Legal findings 

1096. Several provisions of international humanitarian law prohibit the practice of using civilian 
men captured by the armed forces to search houses in which the invading army suspects the risk 
of ambushes or booby traps. 

1097. This practice constitutes the use of involuntary human shields and is a violation of article 
28 of the Fourth Geneva Convention which reads: "The presence of a protected person may not 
be used to render certain points or areas immune from military operations." Article 51, paragraph 
7, of Additional Protocol I (set out in full in chapter VIII above) adds that "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 



535 Soldiers ' Testimonies... , pp. 7-8 and 46. A third soldier recounts discussing the use of Palestinian civilians with 
his unit commander. The unit commander denied knowing about this, but the soldier concludes: "This procedure of 
using civilians exists, he knows about this. 'Neighbour procedure' is an official army procedure; it's just not called 
that any longer. The brigade commander was on the ground the whole time. He even came to visit us one day. An 
official army procedure means army instructions." Ibid., p. 107. 



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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." The 
prohibition of the use of human shields also has customary law status (rule 97 of the ICRC rules 
of customary humanitarian law 536 ), both in international and in non-international armed conflict. 
The Mission, therefore, finds that the Israeli armed forces have violated article 28 of the Fourth 
Geneva Convention and the prohibition under customary international law that the civilian 
population as such will not be the object of attacks, as reflected in article 51 (2) of Additional 
Protocol I. 

1098. In 2002, the Israeli Supreme Court sitting as the High Court of Justice was seized of a 
case regarding the use of a very similar practice in the West Bank, at the time known as the 
"neighbour procedure". The petitioners, seven Israeli and Palestinian human rights organizations, 
described cases in which "the IDF forced Palestinian residents to walk through and scan 
buildings suspected to be booby-trapped, and in which it ordered them to enter certain areas 
before the combat forces, in order to find wanted persons there; also described are cases in which 
the army used residents as a "human shield" which accompanied the combat forces, to serve as a 
shield against attack on those forces. [. . .] Further described were cases in which local residents 
were asked about the presence of wanted persons and weapons, under threat of bodily injury or 
death, should the questions go unanswered." 537 In other words, the petitioners described 
incidents analogous to those investigated by the Mission in Gaza. 

1099. In their response to the petition, the Israeli armed forces and other respondents "clarified 
unequivocally that they recognize that the forces operating in the field are categorically 
forbidden from using Palestinian residents as a 'live shield' or as 'hostages', and that involving 
local residents in any activity exposing them to danger to life or limb is prohibited." 538 The 
Israeli armed forces also submitted to the High Court of Justice a directive regarding the use of 
the so-called "early warning" procedure. This procedure relied on the allegedly exclusively 
voluntary cooperation of Palestinian civilians to give wanted persons a warning to turn 
themselves in. The directive states that "it is strictly forbidden to use the local resident in military 
missions (e.g. locating explosive charges, intelligence gathering)." It also provides "it is strictly 
forbidden to use a local resident as a 'live shield' against attack. Thus, during the advance of the 
force, accompanied by the local resident, the latter is not to be positioned at the head of the 
force." 539 

1 100. As a result of these assurances given by the Israeli armed forces, the High Court of Justice 
did not rule on the so-called neighbour procedure, but on the "early warning" procedure. In its 
ruling, it found that the "early warning" procedure was also "at odds with international law" and 



536 Customary International Humanitarian Law ... , p. 337. The Israeli Government recognizes the customary nature 
of the principle enshrined in Additional Protocol I, article 51 (7) ("The operation in Gaza... ", para. 151). 

537 Adalah Legal Centre for Arab Minority Rights in Israel et al. v. Commander of the Central Region et al., case 
No. 3799/02, Judgement of 23 June 2005. 

538 Ibid., Opinion Justice D. Beinisch. 

539 Ibid., para. 7. 



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ordered the armed forces to desist from any further use of the procedure. 540 In reaching this 
outcome, Supreme Court President A. Barak left no doubt that he considered the "neighbour 
procedure" to violate article 28 of the Fourth Geneva Convention. He quotes approvingly from J. 
Pictet's Commentary to the Fourth Geneva Convention, in which it is stated that "such practices 
[the use of human shields], the object of which is to divert enemy fire, have rightly been 
condemned as cruel and barbaric". 

1101. When reporting on its military operations in Gaza, the Israeli Government stated: 

IDF's rules of engagement strictly prohibit the use of civilians as human shields. 
Moreover, the Israel Supreme Court has ruled that use of civilians in any capacity for the 
purpose of military operations is unlawful, including the use of civilians to call terrorists 
hiding in buildings. Following this judgement, this latter practice has also been proscribed 
by IDF orders. The DDF is committed to enforcing this prohibition. 

The IDF took a variety of measures to teach and instil awareness of these rules of 



engagement in commanders and soldiers 



541 



The Israeli Government does not, however, in any way mention the very specific allegations of 
use of Palestinian civilians as human shields in January 2009 which have been in the public 
domain since they were published in an Israeli newspaper in March 2009 542 and in NGO reports 
from April 2009 onwards, and which have been brought to the attention of the Attorney-General 
of Israel in letters by Israeli NGOs. 

1 102. The Mission further finds from the facts available to it that the conduct of the Israeli 
armed forces in the cases above violates article 3 1 of the Fourth Geneva Convention. This 
provision dictates that "no physical or moral coercion shall be exercised against protected 
persons, in particular to obtain information from them or from third parties." The ICRC 
Commentary notes that "article 3 1 prohibits coercion for any purpose or reason and the obtaining 
of information is only given as an example. Thus, the custom, hitherto accepted in practice but 
disputed in theory, that an invasion army may force the inhabitants of an occupied territory to 
serve as 'guides' is now forbidden."' 43 

1 103. The questioning of civilians under threat of death or injury by Israeli soldiers, who 
demanded information about Hamas and the location of Palestinian combatants and tunnels, also 
constitutes a violation of article 31. The Mission has no information on cases in which such a 
threat was actually followed by the killing of a captured civilian. However, Messrs. Majdi Abd 
Rabbo, Abbas Ahmad Ibrahim Halawa and Mahmoud Abd Rabbo al-Ajrami, all claim that they 
were threatened with execution. Majdi Abd Rabbo also claimed that he was kicked and beaten 
by soldiers until he gave in to their request to enter the house of HS/08. Mahmoud Abd Rabbo 



540 Ibid., para. 25. 

541 "The operation in Gaza... ", paras. 227-228. 

542 "Gazans: IDF used us as 'human shields' during offensive". 

543 p. 220. 



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al-Ajrami was thrown from the second floor of his house after refusing to provide information to 
Israeli soldiers, resulting in several broken ribs. 

1 104. The use of the "neighbour procedure", now apparently renamed "Johnnie procedure", 
constitutes a violation of fundamental human rights norms. It puts the right to life of the civilians 
concerned, protected in article 6 of ICCPR, at risk in an arbitrary and unlawful way. The anguish 
to which civilians who, blindfolded and handcuffed, are forced at gunpoint to enter houses which 
- this is the reason they are forced to enter the houses - might be booby-trapped or harbour 
combatants who might open fire on them, can only be described as cruel and inhuman treatment 
prohibited by article 7 of ICCPR. Furthermore, the witnesses were all deprived of liberty and the 
security of their person violated. This also constitute a violation of article 9 of ICCPR. The 
Mission must state that numerous civilians who came into contact with the Israeli armed forces 
during the military operation recounted shocking stories of humiliation that would certainly be in 
stark contravention of the principle of respect for human dignity, which forms the core of all 
human rights and fundamental freedoms. 

1 105. The Mission also finds that the intentional use as human shields of those whose accounts 
are presented above qualifies as inhuman treatment of and wilfully causing great suffering to 
protected persons under the Fourth Geneva Convention. As such, the Mission considers the 
conduct of the Israeli armed forces in relation to such persons to amount to grave breaches of the 
said Convention. The use of human shields is also a war crime under article 8 (2) (b) (xxiii) of 
the Rome Statute. 

1 106. Finally, the Mission finds that obliging Majdi Abd Rabbo to use a megaphone to call on 
the men trapped in the house behind his to surrender, on the grounds that ICRC was present and 
they could safely hand themselves over, qualifies as a violation of article 37 of Additional 
Protocol I of the Geneva Conventions, which prohibits perfidy. At the time, the Izbat Abd Rabbo 
area was a closed military zone into which no one, including ICRC, was permitted to enter. 
Perfidy is defined by article 37 as "acts inviting the confidence of an adversary to lead him to 
believe that he is entitled to, or is obliged to accord, protection under the rules of international 
law applicable in armed conflict, with intent to betray that confidence". Acts amounting to 
perfidy resulting in death or serious personal injury are also a war crime under article 8 

(2) (b) (vii) of the Rome Statute. 

XV. DEPRIVATION OF LIBERTY: GAZANS DETAINED DURING 

THE ISRAELI MILITARY OPERATIONS OF 27 DECEMBER 2008 
TO 18 JANUARY 2009 

1 107. According to information that the Mission received, hundreds of Gazans, including 
women and children, were detained by the Israeli armed forces during the military operations. 
Their exact number is not known. Some were held for hours or days in homes, other buildings or 
sandpits in the Gaza Strip; others were taken into detention in Israel, either immediately or after 
an initial period of detention in the Gaza Strip. A number of people were held in army bases (e.g. 
Sde Teiman 544 ), others were held in prison, and some released detainees do not know where they 



544 Correspondence with HaMoked, 22 July 2009. See also the testimony of AD/06 taken by Addameer, Prisoners 
Support and Human Rights Association. 



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were held. Some detainees have reported abuse during detention, including beatings, and being 
kept in unsanitary conditions, without any or with only inadequate food or toilet facilities. Some 
released persons have reported that they were used as human shields during their detention, for 
example, forced to walk in front of soldiers and enter buildings ahead of soldiers. 545 

1 108. On 28 January 2009, seven Israeli human rights organizations appealed to the Israeli 
Military Judge Advocate General and to the Attorney General, concerning the "appalling 
conditions in which Palestinians arrested during the fighting in Gaza were held, and the 
humiliating and inhuman treatment to which they were subjected from the time of their arrest 
until their transfer to the custody of the Israel Prison Service." 546 

1 109. The number of detainees that were eventually taken to Israeli prisons has been estimated 
at around 100. 547 Some of them have since been released. It often took the families and lawyers 
several weeks to find out that their loved ones or clients were being detained. Some lawyers have 
alleged that Israel deliberately did not disclose the number of detentions, even to ICRC. 548 
Human rights organization Adalah have filed a freedom of information request to the 
Government, but at the time of writing this report is yet to receive a response. Eventually many 
were released by the Israeli Prison Service but the Mission is not in a position to determine the 
exact number. 

1110. A PC ATI lawyer representing detainees, Mr. Bader, who spoke at the Mission's public 
hearings in Geneva, interviewed a number of the detainees in Israeli prisons and relayed their 
testimonies. These include stories from prisoners who said they were used as human shields or 
held in sandpits. 

1111. The Mission has interviewed a number of persons who were detained by the Israeli armed 
forces for substantial periods of time during the military operations in Gaza and thereafter. In the 
course of that detention they were in some cases held without trial or respect for basic due 
process guarantees, and were mentally and physically abused. The Mission has also heard 
directly from legal representatives of several people who were detained at this time, including 
some of those referred to above. Moreover, the Mission addressed questions to the Government 
of Israel with regard to the number of persons from Gaza detained by Israel during the military 
operations and the duration of their detention, including how many remain in custody. The 
Mission asked how many persons detained in Gaza were charged with being "unlawful 
combatants" and on what basis, how many were subjected to trial and what due process 
guarantees were afforded to them. No reply was received. 



545 PCATI Affidavit submitted to the Mission. Addameer, Prisoners Support and Human Rights Association 
affidavit of AD/06. 

546 The complaint was submitted by the Public Committee against Torture in Israel (PCATI), the Association for Civil 
Rights in Israel (ACRI), HaMoked - Centre for the Defence of the Individual, Physicians for Human Rights - Israel 
(PHR-Israel), B'Tselem, Adalah and Yesh Din. See http://www.btselem.org/english/press releases/20090 128. asp 

547 



548 



Figures supplied to the Mission by PCHR, Adalah and PCATI. 

Correspondence with Addameer, Prisoners Support and Human Rights Association, 25 June 2009. 



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A. Al-Atatra sandpits 



1 1 12. Al-Atatra is located 10 kilometres north of Gaza City, west of Beit Lahia and three to four 
kilometres south of the Green Line. The neighbourhood is largely agricultural with orange and 
lemon orchards. On the morning of 5 January, it suffered heavy aerial bombardment, which was 
followed by a ground incursion by Israeli troops. The Mission met six people, members of the 
same extended family 549 and residents of al-Atatra, three of whom were direct witnesses and 
victims of the events that occurred in the aftermath of the ground incursion. 550 Their testimonies 
are supported by those of three others, also residents of al-Atatra, submitted to the Mission by an 
NGO. 551 

1113. On the morning of 5 January, shortly after the ground operations began, an estimated 
40 Israeli soldiers broke into several homes, including that of AD/01, who described to the 
Mission how 65 persons, several of whom were holding white flags, were made to assemble in 
the street. The soldiers separated the men from the women. The men were made to line up 
against a wall and strip to their underwear. AD/01 indicated that any attempt to resist the soldiers 
was met with physical force, resulting in injuries. 

1 1 14. Approximately 20 minutes later, they were taken into a house owned by Mr. Khalil 
Misbah Attar, where they were detained for a day, the men still separated from the women. The 
house had been struck by a number of missiles that morning and was badly damaged. Witnesses 
indicated to the Mission that the house was at that time being used by the Israeli armed forces as 
a military base and sniper position. 552 

1115. At around 10 p.m., all of the men were handcuffed behind their backs with plastic 
restraints and blindfolded. The men, 1 1 women and at least seven children below the age of 14 
were taken on foot to al-Kaklouk located south of the American School, one to two kilometres 
away. Many of the men remained in their underwear, exposed to the harsh winter weather. 553 Al- 
Kaklouk is very close to Israeli military artillery and tank positions, and while the detainees were 
held here at least one tank was engaged in frequent firing. 

1116. AD/01 told the Mission that, on arrival at al-Kaklouk, everyone was asked to clamber 
down into trenches, which had been dug to create a pit surrounded by a wall of sand, about three 
metres high. There were three such pits, each of which was surrounded by barbed wire. They 
were estimated to cover about 7,000 square metres ("six or seven donums") each. AD/01 
described how they were assembled in long single files, rather than massed together, and held in 



549 For security reasons the witnesses from the family are referred to by coded reference here. 

550 Testimony to the Mission by AD/01 (plus three others), 30 June 2009. 

551 Affidavit of RR, RS and RT, residents of al-Atatra, submitted to the Mission by Adv. Majd Bader. 
Public Committee Against Torture in Israel who testified at the public hearings in Geneva. 

552 The use of Mr. Khalil Misbah Attar's house as a detention place is corroborated in the testimony of Samir Ali 
Muhammad Attar collected in an affidavit by Advocate Mahar Talhamy on behalf of PC ATI, available at: 
http://www.stoptorture.org.il/files/28109 eng.pdf . 

553 According to the BBC weather services, temperatures in the Gaza Strip in December and January, on average, 
vary from maximum 17° to minimum 7° Celsius. 



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these pits, in the open air and exposed to cold temperatures for three days (till 8 January). Each 
pit accommodated approximately 20 people. They were forced to sit in stress positions, on their 
knees and leaning forward keeping their heads down. They were monitored by soldiers and were 
not allowed to communicate with each other. They had no access to food or water on the first 
day of their internment, and were given a sip of water and an olive each to eat on the second and 
third days of their detention (6 and 7 January). They had limited access to toilet facilities. The 
men had to wait for two to three hours after asking before they were allowed to leave the pits to 
relieve themselves and sometimes were able to remove their blindfolds for the purpose. A few of 
them were told to relieve themselves inside the pit, behind a small mount of sand. They stated 
that it was culturally too difficult for the women to seek permission to relieve themselves and 
they did not ask. 

1117. AD/01 states that some tanks were inside the pit with at least one tank positioned at the 
eastern end. 554 While the people were held there, the tank facing inland each day sporadically 
fired on the houses along the road opposite the site. 

1118. AD/01B and AD/01C recounted that on 8 January, the women and children were released 
and told to go to Jabaliyah. The men were transferred to military barracks near the northern 
border, identified as the Izokim Barracks. At the Izokim barracks, the men were detained in pits 
similar to but smaller than those in al-Kaklouk. They continued to be exposed to the cold 
temperature, rain and the constant sound of tank movement overhead. The witnesses have 
described to the Mission the experience of continued and prolonged exposure to the sound of this 
tank movement as disorienting and creating feelings of futility, isolation, helplessness and abject 
terror. 

1119. The men were held handcuffed and in their underwear in the Izokim barracks overnight. 
They were questioned intermittently, mostly on details and locations of Qassam rockets, the 
tunnels and the whereabouts of Hamas parliamentarians. According to statements made to the 
Mission, they were beaten during the interrogation and threatened with death and being run over 
by tanks. The Mission notes that the nature and types of questions asked remained the same 
throughout the interrogations in various detention facilities. 

1 120. On 9 January, the men were taken to a prison in Israel, indentified by one witness as the 
Negev prison, where they remained until 12 January. They were detained in one section of the 
prison, alternating between being held in isolation and in shared cells, and were subjected to 
harsh interrogation, often by two people dressed in civilian clothes. Interrogation focused on the 
identification of Hamas tunnels and arms as well as the whereabouts of Gilad Shalit. 

1 121. AD/01B and AD/01C recounted that they were shackled to a chair with plastic strips and 
interrogated several times, with AD/01B stating that he was made to strip naked during an 
interrogation. He was kept in solitary confinement where a soldier would come intermittently 
during the day, and slam the cell door open and shut, exposing him to extremely cold 
temperatures. AD/01 C stated that during the first interrogation he was verbally threatened and in 
the subsequent two he was blindfolded and beaten. He was made to stand up and face the wall, 



554 This is corroborated in the statement by RR to PCATI. 



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following which his face was smashed against the wall several times before he was severely 
beaten (kicked and punched) on his back and buttocks. 

1 122. Requests for clothing were denied. During the interrogation the detainees were informed 
that they were "illegal combatants" and that they had no protection under the Geneva 
Conventions. They had limited access to food, water and sanitation. Their morning meal was a 
bottle-cap-sized piece of bread with a drop of marmalade. The evening meal, if provided, 
consisted of rotting sardines and cheese on mouldy bread. 

1 123. AD/01 C described the experience of being detained, stripped and shackled as one of 
abandonment, desperation, suffocation and isolation. He continues to experience discomfort 
where he was beaten and is unable to sit and sleep comfortably. 

1 124. AD/01C stated that while in Negev prison an additional group arrived. They were kept 
separately in the second section. The exact number of detainees in the second group is unknown, 
although AD/01 C indicated to the Mission that the second group was smaller. 

1 125. On 12 January, nine people including the witnesses were blindfolded, handcuffed and 
transported to the Erez border. AD/01 described to the Mission how they were subjected to harsh 
interrogation at Erez and made to strip completely. Several hours later they were told to run into 
Gaza, to look straight ahead and not to look back. 

1 126. AD/01 states that all 65 detainees from the original group taken from al-Atatra to Israel 
were eventually released. Some members of his family were detained afterwards, but not in the 
original group of 65. At the time of writing, three of these remain incarcerated in various 
detention facilities of the Israel Prison Service. An unknown number remain in prison facing 
charges of being illegal combatants and members of al-Qassam Brigades. The first hearing was 
scheduled to be held in August in Israel (exact date not known). 

B. Detention and abuse of AD/02 

1 127. AD/02 was interviewed by the Mission on 1 July 2009. He is a resident of Beit Lahia and 
a businessman. He was detained on 4 January 2009 for around 85 days. In that period he was 
held in Beersheba and Negev prisons, after being detained in locations identified as military 
posts. He was mentally and physically abused. He appeared before what appeared to be a 
criminal court, but the precise nature of the proceedings and their results were never made clear 
to him. He was released without explanation and returned to the Erez border and told to re-enter 
Gaza. 

1 128. By 3 January AD/02 and his extended family, numbering over 200, had gathered together 
in Beit Lahia as a result of the attacks that were taking place in the area. At around 4 a.m. on 4 
January Israeli troops entered the area shooting. They ordered everyone out of the house and 
separated the men from the women and children. They selected 15 of the men, without asking for 
names. The women and children were ordered to go south. AD/02 recounted that the 15 men, 
including him, were separated from the other men and were blindfolded and handcuffed with 



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plastic strips. 555 They were taken on foot to an open space half a kilometre away. An hour later, 
they were taken to a house where they were joined by an estimated 54 or 55 people, who 
apparently also wore blindfolds. 

1 129. AD/02 described how they were interrogated in a separate room, individually and at times 
in groups of two or three. He stated that some of the men, though not him, were beaten during 
the interrogation and were made to clamber down into trenches or pits, dug in the ground outside 
the house, big enough to accommodate one person. They were kept in the pits for several hours 
at a time, handcuffed and blindfolded, with no access to toilets. 

1130. Later that night, 15 people - four women and at least 1 1 children - were brought to the 
house. They were detained overnight in the corridor outside the room where the men were 
detained. The next morning, on 4 January, the men, women and children were taken out of the 
house to an open space. The men remained blindfolded and handcuffed. AD/02 stated that the 
open space was a military post with many tanks and soldiers. They were all told to sit in the 
middle of the empty space. A fence of barbed wire was then erected around them. They sat 
within the barbed enclosure all day and all night in close proximity to the movement and sound 
of military tanks. 

1131. AD/02 stated that 1 8 to 20 other men were held overnight in an open truck, exposed to the 
cold and rain. AD/02 knew this from talking to some of the men the following morning 



556 



1 132. On 5 January, 18 to 20 men, not including AD/02, were taken from the military post to an 
unknown location. 557 AD/02 and 35 others were taken to an area described by him as located 
north of Gaza City and in Israel. They remained handcuffed and blindfolded for an hour and a 
half. Then a roll-call was taken, their blindfolds removed and they were interrogated by a person 
who identified himself as an intelligence officer. Shortly afterwards, AD/02 and a few others 
(exact number not known) were interviewed by a group of people identifying themselves as part 
of a television crew. AD/02 does not know the name and/or details of the television channel. 
They were then led to an open space, where they stayed all evening exposed to the rain and cold. 
Later that night (5-6 January) they were blindfolded and shackled with chains and taken to a 
location which AD/02 subsequently learned was the Beersheba prison facility. A few hours later, 
at dawn, their blindfolds and handcuffs were removed. 

1133. AD/02 recounted that he was in extreme pain as the handcuffs were very tight, adding to 
the pain caused by pre-existing injuries to his hands and wrist. Earlier in his life, he had suffered 
serious burns and the scarring on his hands and arms is evident. There is continued nerve damage 
to the skin tissue which causes significant pain in cold weather. His gloves were taken away by 



555 Jerusalem Centre for Public Affairs submission, page 48; see also testimony 21 in Soldiers ' Testimonies... , which 
supports AD/01 's statement: "we go in, call out to the owner to open, gather all the males, shackled them, gather the 
family in one room and begin to search", p. 50. 

556 AD/02's statement is corroborated in a letter sent by various NGOs (ACRI, PCATI, HaMoked, PHR, B'Tselem, 
Yesh Din and Adalah) to the Military Advocate General on 8 January 2009, available at: 
http://www.stoptorture.org.il/files/28109 eng.pdf . 

557 AD/02 indicated that it was later learned that the men had been taken to Ashkelon prison before being brought to 
the Beersheba Prison, where they were grouped with the others, including AD/02. 



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soldiers during an interrogation, exposing his hands to the extreme cold. His requests for medical 
assistance were ignored several times before his arrival in Beersheba, where he was given access 
to a doctor. He was, however, given only a non-medicated lotion. 

1 134. AD/02 stated that he was detained in Beersheba for approximately a week. He was 
intermittently kept in isolation and then in a courtyard with several other detainees. In one 
instance, he was blindfolded, handcuffed and shackled, and interrogated for approximately two 
hours by three people. He was verbally abused and beaten during the interrogation, his hair was 
pulled and he was kicked with one of the interrogators attempting to push his boots through the 
loop of the handcuffs tied around his wrists. 

1135. On or around 13 January, pursuant to an interrogation by a person dressed in civilian 
clothes, AD/02 was blindfolded and handcuffed and taken to the Negev prison. He remained 
there until the end of March. During this time he was transferred at least 10 times from one cell 
to another. 

1136. On arrival his handcuffs were removed and he was taken to a ward, which consisted of 
small one-man cells with iron doors and no windows. The cells each contained an iron bench. 
Two hours later, he was blindfolded and taken to an interrogation room, where he was stripped 
and made to stand alone, naked, for almost an hour before his clothes were returned and he was 
handcuffed and shackled. He was taken by four people to another room, where he was beaten 
with the butt of a rifle while also being kicked and punched several times. The beating lasted for 
about 30 minutes. He was then left alone in the room for about 2 hours. He was then taken to a 
large communal space referred by the soldiers as the "tents." There were seven or eight such 
spaces or tents spread across the prison. 

1137. AD/02 said that he was unable to stand owing to the severe injuries sustained during the 
beatings and had to be carried to the tents. He was taken to a doctor, given some medicines and 
allowed to take a shower. AD/02 stated that he stayed in the tent area for about a week before 
being transferred to a cell occupied by four people. The cell had an iron bed and a bunk bed. 
Two people including AD/02 slept on the floor. The cell was dark and filthy. There was no clean 
water and no toilet. During the entire week the men had to relieve themselves in the cell, which 
was never cleaned. 

1138. AD/02 remained in the cell for about one week. At some time during this period he was 
taken, blindfolded, handcuffed and shackled, by bus to what appeared to be a court. On arrival, 
his handcuffs and blindfold were removed. He remained shackled when he was taken inside the 
courtroom. The courtroom had a standard layout with the judge seated behind a table in the 
centre of the room. The prosecution was on one side and the defence on the other. They were all 
dressed in civilian clothes. Once inside the courtroom, AD/02 was made to sign a consent form, 
accepting the lawyer reportedly appointed to defend him. Although the lawyer identified himself 
as belonging to a human rights organization, he gave no name. As the proceedings began, the 
judge addressed AD/02 and read out the charge against him. The judge announced that he was 
being charged with being an illegal combatant but did not explain specific charges. AD/02 was 
asked no questions. When the defence lawyer asked for the charge to be elaborated, the judge 
replied that the charges were part of a secret dossier and could not be elaborated upon or 
revealed. The proceeding lasted about 30 minutes and AD/02 was taken back to Negev. 



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1139. A week later, around or on 28 January, AD/02 was transferred to another section of the 
prison, where roll-calls and strip searches were carried out regularly. Some 8 to 10 days later, 
around 7 February, he and 14 others, were moved to a larger ward with prisoners from the West 
Bank. The ICRC was given access to them. 

1 140. On 8 February, AD/02 was transferred, twice, to another section of the prison and shortly 
afterwards to the cell where he had first been detained on arrival at Negev. On 9 February, at 
around noon, he and several others were transferred, for the ninth time, to another section of the 
prison occupied by a large number of prisoners, including those from the West Bank. AD/02 
indicated that several of them were parliamentarians. He remained in this section for 
approximately 20 days. During this time he three times met a person who identified himself as a 
lawyer. He was informed of the charges against him, which included membership and 
involvement with the resistance. 

1 141. On 2 March, he was transferred with 10 others to yet another section of the prison. They 
were put in two rooms, five in each room. The rooms had graffiti on the wall that read illegal 
combatants in English and in Hebrew. They had limited access to toilets and were given 
uncooked food to eat. 

1 142. Around 29-30 March, AD/02 was finally released. He and his brother, a cousin and two 
other residents of Izbat Abd Rabbo were blindfolded and handcuffed and taken to the Erez 
border, where they were interrogated for approximately four hours. They were then told to cross 
the border and not look back. They were given no explanation about either their detention or 
their release. 

C. AD/03 

1 143. AD/03 is a resident of al-Salam neighbourhood, east of Jabaliyah and close to the eastern 
border with Israel. His arrest and detention were preceded by aerial attacks and a ground 
invasion in his neighbourhood. His house was struck several times, over a period of five days, by 
projectiles fired from F-16 aircraft. The attacks continued throughout the night when most 
people were asleep. 558 As a result of the continued attacks, he sought refuge in a relative's house 
nearby. 

1 144. AD/03 stated that, although the area could be considered as a frontline where armed 
groups had been present, the neighbourhood could not reasonably have been perceived as a 
military threat by the time the Israeli armed forces arrived on the ground. There was no 
resistance going on in the neighbourhood when it was targeted. If the intent of the attacks was to 



558 On the afternoon of 3 January, AD/03 's house was struck twice by projectiles, within two hours, causing 
significant damage. He and his family moved to a relative's house nearby, where they stayed overnight. On 4 
January in the evening, when AD/03 had returned to his own home, it was struck for the third time and part of the 
roof collapsed. AD/03 sustained minor injuries; his mother and his wife sustained more serious injuries. Later that 
night, at around 9.40 p.m., the house was hit by a fourth rocket, which was followed by another attack 20 minutes 
later that completely destroyed the ground floor facade injuring AD/03 's father's second wife. Another shell (the 
sixth attack) was fired shortly afterwards. AD/03 and his family relocated for the second time to his cousin's house, 
where they remained for four nights, until 7 January. On the morning of 8 January, aerial bombardment intensified 
to the extent that three explosions/shells were reportedly heard every minute. 



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destroy alleged command centres, positions or weapons caches of Hamas, he felt that those 
positions would have been destroyed in the first few attacks on the neighbourhood given the 
intensity of the shelling. 

1 145. On 8 January, at around 1 1.30 a.m., the house where AD/03 was seeking refuge was 
struck by a missile so he decided to return to his own house. He described how Israeli soldiers 
fired at them, including women and children carrying white flags, when they tried to leave his 
cousin's house. His father's wife sustained a bullet injury to her leg. Thirty minutes later, around 
noon, the Israeli armed forces ordered all residents to evacuate their homes and come out in the 
street. The men were separated from the women and children, and told to line up against a wall, 
lift their shirts and strip to their underwear. They remained stripped and lined up against the wall 
for approximately 15 minutes. The men, women and children were then told to walk down the 
street. 

1 146. AD/03 recounted that the street was blocked with large piles of heavy rubble and debris of 
bulldozed buildings, which provided a difficult obstacle for several people, including children 
and elderly people. They walked 200-250 metres before arriving at a house. Two hours later the 
women and children were told to go to Jabaliyah. Shortly afterwards, AD/03, his brother, cousin 
and an unknown man were taken to another room, where they were forced to lie on the ground. 
They were then blindfolded and their hands were tied behind their backs with plastic strips. They 
were interrogated individually for several hours. Later that evening, they were made to walk 
about 100 metres eastward to another house. They were detained overnight in a room, together 
with three others, who identified themselves as residents of Abd Rabbo. They had no access to 
food, water or toilets. The next morning, on 9 January, their blindfolds were removed and all 
seven were interrogated, individually, by one soldier. 

1 147. AD/03 stated that the house was being used as a military base and sniper position. On the 
second day of detention the Israeli soldiers began to use some detainees as human shields. By 
then the detainees had been without food and sleep for a day. They had been subjected to what 
AD/03 described as psychological torture. There were constant death threats and insults. To 
carry out house searches as human shields the Israeli soldiers took off AD/03 's blindfold but he 
remained handcuffed. He was forced to walk in front of the soldiers and told that, if he saw 
someone in the house but failed to tell them, he would be killed. He was instructed to search 
each room in each house cupboard by cupboard. After one house was completed he was taken to 
another house with a gun pressed against his head and told to carry out the same procedure there. 
He was punched, slapped and insulted throughout the process. 

1 148. AD/03 indicated that he was forced to do this twice while the group was being held in this 
house for eight days. Others were also required to do the same thing. On the first occasion he 
was forced to carry out searches in three houses and on the second in four. AD/03 estimates that 
these searches took between one hour and one hour and a half. At no point did he come across 
any explosive devices or armed group members. 



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1 149. AD/03 stated that, at the end of every search, the houses were vandalized by the Israeli 
soldiers, who broke doors, windows, kitchenware and furniture, for instance. 559 

1 150. At the end of the day he was taken back to the house, where he and six others continued to 
be detained for 8 days, until 16 January. They had limited access to food and water and were 
often denied access to toilets. They were told that their ordeal would continue indefinitely. One 
soldier reportedly told them that the soldiers were "following instructions issued by the chain of 
command." 

1151. For the first time the detainees were asked for proof of identity. AD/03 said that their 
identification documents were thoroughly inspected. Had they revealed anything in relation to 
militant activities, he believed they would have been killed. 

1 152. On 16 January they were handcuffed, with plastic strips tied very tightly around their 
wrists, made to stand in a single file, blindfolded and told to hold on to the shirt of the person 
standing in front of them. They were made to walk towards a military tank positioned very close 
to the house where they had been detained and told to sit on top of each other inside the tank. 
The tank drove on a bumpy track and over big boulders causing them to frequently slam against 
the sides of the tank. About three hours later it stopped in an unknown location. On arrival, they 
were asked to clamber down into holes or pits about three to four metres deep. AD/03 stated that 
they were in a military post, as they heard the voices of several soldiers laughing and joking 
noisily. They remained blindfolded and handcuffed and exposed to the continued sound of tank 
movement overhead. They remained in the pit for about one hour and were then made to sit 
inside a tank that moved in circles. 

1 153. Shortly afterwards, their handcuffs were removed and they were shackled with chains 
inside a bus. They were accompanied by soldiers who spoke Hebrew. On arrival, they were 
searched and then interrogated for eight hours before being taken to the military barracks in 
Beersheba. Then they were made to line against the wall before being asked to strip naked. They 
were made to stand, blindfolded, naked and exposed to the cold winds, for about three or four 
hours. 

1 154. On 19 January, eight people, including AD/03, his brother and one other man from the 
group of seven who were taken to Beersheba on 16 January, were shackled inside the bus, made 
to bend forward and keep their heads down, between their knees, and were taken to Negev 
prison, a journey that lasted approximately four hours. During this journey they were 
continuously beaten, kicked and punched by four or five soldiers on board. According to AD/03, 
the detainees sustained serious injuries and were bleeding, two bleeding more profusely than the 
others. Two detainees reportedly even fainted. He stated that soldiers on board made constant 
reference to shackling practices in the Russian Federation, leading AD/03 to believe that the 
soldiers were from there. 



559 The account of a soldier interviewed by Breaking the Silence and the account in the submission of the Jerusalem 
Centre for Public Affairs clarify that soldiers would vandalize houses after searches. Jerusalem Center for Public 
Affairs submission, p. 78. "The family was not in there, they had run away. He [one of the soldiers] took out 
notebooks and textbooks and ripped them. One guy smashes cupboards for kicks, out of boredom. [...]" Soldiers ' 
Testimonies... , testimony 35, p. 80. 



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1155. On arrival at Negev, they were severely beaten by the prison security for approximately 
one and a half hours before being put into cells and told that they were caught during battle and 
were illegal combatants. Later that night, 10 more people joined the group of detainees. 

1 156. AD/03 described how on the second day of their incarceration, 20 January, the detainees 
(at this point 18 in number) were told that they would be interrogated in accordance with their 
alleged political affiliations. Several of them pointed out that they had none. They were grouped 
apart. AD/03 said that they talked among themselves and he found out that nine of them were 
livestock farmers and three or four were merchants and traders. 

1 157. AD/03 described how the detainees were divided into two groups of nine each and put in a 
section of the prison referred to as the mardaban, which was divided into two wards containing 
10 iron beds each and guarded by Israeli Arab soldiers. They remained incarcerated for eight 
days, until 27 January, with limited access to food, water, toilets and physical exercise. 

1158. On 24 January, AD/03 was given access to a lawyer, affiliated with Addameer, Prisoners 
Support and Human Rights Association, 560 for the first and only time. The Mission interviewed 
him 561 and he confirmed that he had visited AD/03 and his brother on 25 January 2009. The 
lawyer's evidence provided corroboration of the detention of AD/03 and his brother (who was 
also assisted by the lawyer), and the conditions under which he was subjected to criminal 
proceedings in Israel. The lawyer was informed by the Israeli authorities that AD/03 was 
detained under the illegal combatant law but he was not given the dossier to review. His brother 
was never formally charged. 

1 159. On 25 January, the detainees were told that they would be taken to Beersheba for their 
trial. On 26 January, all 18 detainees were shackled with iron chains to iron benches in a bus, 
handcuffed with iron handcuffs and taken to Beersheba. They were not blindfolded. The journey 
lasted five hours during which the bus drove on bumpy roads causing the detainees to slam 
against the sides of the bus. They were detained in Beersheba overnight in overcrowded cells 
together with people convicted of serious offences, according to AD/03. They were mostly 
Israeli Jews. 

1 160. The following morning, on 27 January, they were taken back to the Negev prison in 
shackles and handcuffs. They were given no information regarding the scheduled hearing. The 
outcome of the proceedings was not clear to AD/03 at the time, as he believed he had been 
"acquitted" only when they were returned to the Negev prison. 

1161. The lawyer from Addameer was present in the court. According to him, the prosecutor 
made the decision not to proceed with the case rather than the detainees being acquitted. The 
lawyer confirms that they were held in Ktziot prison in the Negev Desert and released on 

27 January. 



560 The Mission has heard directly from AD/03 's legal representative, who stated that he received a copy of his file, 
but not the secret file, from the Prosecutor's Office on 21 January 2009. AD/03 was arrested on suspicion of being 
an illegal combatant. 

561 The lawyer had been alerted to the cases by Al Mezan, a human rights organization in Gaza. 



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1 162. AD/03 said they were then taken back to Beersheba and later to the Erez border, where 
they were released. They were told to run into Gaza and not look back. 

1 163. AD/03 indicated that two others, detained with him, were released a month later. Two 
others continue to be detained in the Ktziot prison and are reportedly awaiting trial. The status 
and whereabouts of 1 1 others are not known. 

D. Factual findings 

1 164. The Mission found the witnesses credible and reliable taking into account their demeanour 
and the consistency of their statements. At least one of them was still suffering considerable 
anguish because of the treatment he had endured at the hands of the Israeli soldiers and other 
officials. The Mission notes that there are several common features to these incidents that 
disclose a pattern of behaviour on the part of the Israeli soldiers, indicating that the treatment 
meted out to the persons deposing before the Mission were not isolated incidents. The facts 
available to the Mission indicate that: 

• All three locations were near the border with Israel; 

• Before the arrival of ground troops, all three had been under aerial or ground attack. 
The soldiers on the ground were in complete control of the area at the time of their 
encounter with the civilians; 

• There was no combat activity by the persons reporting, nor any likelihood of such 
activity being under way in the area or nearby at the time that the soldiers started the 
operation against civilians in the three locations. None of the civilians was armed or 
posed any apparent threat to the soldiers. In two of the incidents they were holding 
white flags as a sign of their non-combatant status; 

• It is clear in two of the incidents that none of those detained had been asked for their 
names by the soldiers for several days. This establishes that there was no definite 
suspicion against them that they were combatants or otherwise engaged in hostile 
activities; 

• In all cases a number of persons were herded together and detained in open spaces 
for several hours at a time and exposed to extreme weather conditions; 

• The soldiers deliberately subjected civilians, including women and children, to cruel, 
inhuman and degrading treatment throughout their ordeal in order to terrorize, 
intimidate and humiliate them. The men were made to strip, sometimes naked, at 
different stages of their detention. All the men were handcuffed in a most painful 
manner and blindfolded, increasing their sense of fear and helplessness; 

• Men, women and children were held close to artillery and tank positions, where 
constant shelling and firing was taking place, thus not only exposing them to danger, 
but increasing their fear and terror. This was deliberate, as is apparent from the fact 
that the sandpits to which they were taken were specially prepared and surrounded by 
barbed wire; 



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• During their detention in the Gaza Strip, whether in the open or in houses, the 
detainees were subjected to beatings and other physical abuse that amounts to torture. 
This continued systematically throughout their detention; 

• Civilians were used as human shields by the Israeli armed forces on more than one 
occasion in one of the three incidents. Taking account of other incidents in which the 
Mission has found this to have happened, it would not be difficult to conclude that 
this was a practice repeatedly adopted by the Israeli armed forces during the military 
operation in Gaza; 

• Many civilians were transferred across the border to Israel and detained in open 
spaces as well as in prisons; 

• The methods of interrogation amounted not only to torture in some of the cases, but 
also to physical and moral coercion of civilians to obtain information; 

• These persons were subjected to torture, maltreatment and foul conditions in the 
prisons. They were deprived of food and water for several hours at a time and any 
food they did receive was inadequate and inedible; 

• While in detention in Israel they were denied due process. 

E. Legal findings 

1 165. The Mission considers the following legal provisions relevant to its consideration of the 
matters presented above: 562 

Article 4 of the Fourth Geneva Convention 

Persons protected by the Convention are those who, at a given moment and in any 
manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a 
party to the conflict or occupying Power of which they are not nationals. 

Nationals of a State which is not bound by the Convention are not protected by it. 
Nationals of a neutral State who find themselves in the territory of a belligerent State, and 
nationals of a co-belligerent State, shall not be regarded as protected persons while the 
State of which they are nationals has normal diplomatic representation in the State in 
whose hands they are. 

The provisions of Part II are, however, wider in application, as defined in article 13. 

Persons protected by the Geneva Convention for the Amelioration of the Condition 
of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the 
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and 
Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva 



562 



The Mission does not repeat here the provisions already cited elsewhere, such as article 57 of Additional Protocol 
I or common article 3 . 



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Convention relative to the Treatment of Prisoners of War of 12August 1949, shall not be 
considered as protected persons within the meaning of the present Convention. 

Article 5 of the Fourth Geneva Convention 

Where, in the territory of a party to the conflict, the latter is satisfied that an 
individual protected person is definitely suspected of or engaged in activities hostile to the 
security of the State, such individual person shall not be entitled to claim such rights and 
privileges under the present Convention as would, if exercised in the favour of such 
individual person, be prejudicial to the security of such State. 

Where in occupied territory an individual protected person is detained as a spy or 
saboteur, or as a person under definite suspicion of activity hostile to the security of the 
occupying Power, such person shall, in those cases where absolute military security so 
requires, be regarded as having forfeited rights of communication under the present 
Convention. 

In each case, such persons shall nevertheless be treated with humanity and, in case 
of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present 
Convention. They shall also be granted the full rights and privileges of a protected person 
under the present Convention at the earliest date consistent with the security of the State 
or occupying Power, as the case may be. 

Article 27 of the Fourth Geneva Convention 

Protected persons are entitled, in all circumstances, to respect for their persons, their 
honour, their family rights, their religious convictions and practices, and their manners 
and customs. They shall at all times be humanely treated, and shall be protected especially 
against all acts of violence or threats thereof and against insults and public curiosity. 

Women shall be especially protected against any attack on their honour, in particular 
against rape, enforced prostitution, or any form of indecent assault. 

Without prejudice to the provisions relating to their state of health, age and sex, all 
protected persons shall be treated with the same consideration by the party to the conflict 
in whose power they are, without any adverse distinction based, in particular, on race, 
religion or political opinion. 

However, the parties to the conflict may take such measures of control and security 
in regard to protected persons as may be necessary as a result of the war. 

Article 76 of the Fourth Geneva Convention 

Protected persons accused of offences shall be detained in the occupied country, and 
if convicted they shall serve their sentences therein. They shall, if possible, be separated 
from other detainees and shall enjoy conditions of food and hygiene which will be 
sufficient to keep them in good health, and which will be at least equal to those obtaining 
in prisons in the occupied country. 



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They shall receive the medical attention required by their state of health. They shall 
also have the right to receive any spiritual assistance which they may require. 

Women shall be confined in separate quarters and shall be under the direct 
supervision of women. 

Proper regard shall be paid to the special treatment due to minors. 

Protected persons who are detained shall have the right to be visited by delegates of 
the protecting Power and of the International Committee of the Red Cross, in accordance 
with the provisions of article 143. 

Such persons shall have the right to receive at least one relief parcel monthly. 

1 166. Relevant parts of article 75 of Additional Protocol I, which reflect customary international 
law, provide: 

1 . In so far as they are affected by a situation referred to in article 1 of this Protocol, 
persons who are in the power of a party to the conflict and who do not benefit from more 
favourable treatment under the Conventions or under this Protocol shall be treated 
humanely in all circumstances and shall enjoy, as a minimum, the protection provided by 
this article without any adverse distinction based upon race, colour, sex, language, religion 
or belief, political or other opinion, national or social origin, wealth, birth or other status, 
or on any other similar criteria. Each Party shall respect the person, honour, convictions 
and religious practices of all such persons. 

2. The following acts are and shall remain prohibited at any time and in any place 
whatsoever, whether committed by civilian or by military agents: 

(a) Violence to the life, health, or physical or mental well-being of persons, in 
particular: 

(ii) torture of all kinds, whether physical or mental; 
(iii) corporal punishment; and 

(b) Outrages upon personal dignity, in particular humiliating and degrading 
treatment, enforced prostitution and any form of indecent assault; 

(c) The taking of hostages; 

(d) Collective punishments; and 

(e) Threats to commit any of the foregoing acts. 



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3. Any person arrested, detained or interned for actions related to the armed conflict 
shall be informed promptly, in a language he understands, of the reasons why these 
measures have been taken. Except in cases of arrest or detention for penal offences, such 
persons shall be released with the minimum delay possible and in any event as soon as the 
circumstances justifying the arrest, detention or internment have ceased to exist. 

4. No sentence may be passed and no penalty may be executed on a person found 
guilty of a penal offence related to the armed conflict except pursuant to a conviction 
pronounced by an impartial and regularly constituted court respecting the generally 
recognized principles of regular judicial procedure, which include the following: 

(a) The procedure shall provide for an accused to be informed without delay of the 
particulars of the offence alleged against him and shall afford the accused before and 
during his trial all necessary rights and means of defence; 

(b) No one shall be convicted of an offence except on the basis of individual penal 
responsibility; 

(c) No one shall be accused or convicted of a criminal offence on account of any 
act or omission which did not constitute a criminal offence under the national or 
international law to which he was subject at the time when it was committed; nor shall a 
heavier penally be imposed than that which was applicable at the time when the criminal 
offence was committed; if, after the commission of the offence, provision is made by law 
for the imposition of a lighter penalty, the offender shall benefit thereby; 

(d) Anyone charged with an offence is presumed innocent until proved guilty 
according to law; 

(e) Anyone charged with an offence shall have the right to be tried in his presence; 

(f) No one shall be compelled to testify against himself or to confess guilt; 

(g) Anyone charged with an offence shall have the right to examine, or have 
examined, the witnesses against him and to obtain the attendance and examination of 
witnesses on his behalf under the same conditions as witnesses against him; 

(h) No one shall be prosecuted or punished by the same Party for an offence in 
respect of which a final judgement acquitting or convicting that person has been 
previously pronounced under the same law and judicial procedure; 

(i) Anyone prosecuted for an offence shall have the right to have the judgement 
pronounced publicly; and 

(j) a convicted person shall be advised on conviction of his judicial and other 
remedies and of the time limits within which they may be exercised. 

5. Women whose liberty has been restricted for reasons related to the armed conflict 
shall be held in quarters separated from men's quarters. They shall be under the immediate 
supervision of women. Nevertheless, in cases where families are detained or interned, 



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they shall, whenever possible, be held in the same place and accommodated as family 
units. 

6. Persons who are arrested, detained or interned for reasons related to the armed 
conflict shall enjoy the protection provided by this article until their final release, 
repatriation or re-establishment, even after the end of the armed conflict. 

7. In order to avoid any doubt concerning the prosecution and trial of persons accused 
of war crimes or crimes against humanity, the following principles shall apply: 

(a) Persons who are accused of such crimes should be submitted for the purpose of 
prosecution and trial in accordance with the applicable rules of international law; and 

(b) Any such persons who do not benefit from more favourable treatment under 
the Conventions or this Protocol shall be accorded the treatment provided by this article, 
whether or not the crimes of which they are accused constitute grave breaches of the 
Conventions or of this Protocol. 

8. No provision of this article may be construed as limiting or infringing any other 
more favourable provision granting greater protection, under any applicable rules of 
international law, to persons covered by paragraph 1 . 

1 167. From the facts available to it, and in the absence of any information refuting the 
allegations that the incidents described above took place, the Mission finds that there have been a 
number of violations of international humanitarian law and human rights law. 

1 168. All of the persons held were civilians and protected persons under article 4 of the Fourth 
Geneva Convention. The Mission does not accept the proposition that the men were detained as 
or considered to be unlawful combatants and therefore beyond the protection of the Fourth 
Geneva Convention. An individual loses the status of protected person only if that person is 
"definitely suspected of or engaged in activities hostile to the security of the State" (art. 5). The 
Mission has not heard any information suggesting this to be the case. Even if a person is no 
longer entitled to the status of protected person, article 5 provides that such persons must 

"be treated with humanity" and "shall not be deprived of the rights of fair and regular trial." 
Furthermore, under Additional Protocol I, article 75, they shall enjoy "as a minimum" the 
protections provided by that article. 

1 169. The Mission has considered to what extent the actions of the Israeli armed forces might 
legitimately be considered as some kind of internment in the light of the resistance from armed 
groups in the area generally, although not in the context of the specific detentions. These people 
from Gaza were detained in prisons inside Israel (Beersheba, Ashkelon and Negev prisons), 
contrary to the Fourth Geneva Convention, which stipulates in article 76 that protected persons 
should be detained inside the occupied territory and not transferred out of it unless there is a 
pressing security need. 563 It also makes clear that internment is the most severe measure that a 



563 ICRC also specifies that, in occupied territories, civilians can be interned, or placed in assigned residence, only 
within the frontiers of the occupied country itself. See ICRC Commentary on article 78 of the Fourth Geneva 
Convention. 



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detaining authority or occupying Power may take with respect to protected persons against 
whom no criminal proceedings have been initiated. Internment is a preventive administrative 
measure and cannot be considered a penal sanction. 564 Recourse to the measure may be had only 
if the security of the State makes it "absolutely necessary" (art. 42) or "for imperative reasons of 
security" (art. 78). 

1 170. The Mission does not consider that the information it has received supports defining the 
treatment described above as internment. 

1171. The rounding-up of large groups of civilians and their prolonged detention under the 
circumstances described above constitute a collective penally on those persons in violation of 
article 33 of the Fourth Geneva Convention and article 50 of the Hague Regulations. Such 
treatment amounts to measures of intimidation and terrorism, prohibited under article 33 and a 
grave breach of the Convention that constitutes a war crime. 

1 172. By holding the detainees in sandpits without privacy, the Israeli soldiers failed to ensure 
respect for their persons or to treat them humanely as required by article 27 of the Fourth Geneva 
Convention. The information before the Mission suggests that this treatment could not be 
justified as necessary "measures of control and security ." This treatment also constituted 
outrages on personal dignity, humiliating and degrading treatment contrary to the Geneva 
Conventions, common article 3, and Additional Protocol I, article 75 (2) (b). The abuse, which 
required a considerable degree of planning and control, was sufficiently severe to constitute 
inhuman treatment within the meaning of article 147 of the Fourth Geneva Convention and thus 
a grave breach of the said Convention that would constitute a war crime. 

1 173. "Women shall be the object of special respect", in accordance with article 76 of 
Additional Protocol I. The Mission finds, on the information before it, that the treatment of the 
women in the sandpits, where they endured especially distressing circumstances, was contrary to 
this provision and would also constitute a war crime. 

1 174. The Mission has received information relating to the particular treatment received by 
some witnesses, such as shackling, severe beatings during detention and interrogation, being held 
in foul conditions or solitary confinement, which added to their already profound sense of 
degradation. Such treatment violates article 31 of the Fourth Geneva Convention, which 
prohibits physical or moral coercion against protected persons, "in particular to gain information 
from them". This would also constitute a war crime. 

1 175. Furthermore, on the basis of this information, the Mission considers that the severe 
beatings, constant humiliating and degrading treatment and detention in foul conditions allegedly 
suffered by individuals in the Gaza Strip under the control of the Israelis and in detention in 
Israel, would constitute torture, and a grave breach under article 147 of the Fourth Geneva 
Convention and a violation of the Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment. Such violations also constitute war crimes. 



564 ICRC Commentary on the Fourth Geneva Convention. 



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1 176. From the facts ascertained by it, the Mission believes that there has also been a violation 
of articles 7 and 10 of the International Covenant on Civil and Political Rights, as well as of 
article 14 ICCPR with regard to the right to be brought before a judge at the earliest opportunity, 
the right to be informed of the charges against one, the right to consult with legal counsel and the 
right to be provided with a meaningful opportunity to defend oneself. 

XVI. OBJECTIVES AND STRATEGY OF ISRAEL'S MILITARY 
OPERATIONS IN GAZA 

1 177. This chapter addresses the objectives and the strategy underlying the Israeli military 
operations in Gaza. 

A. Planning 

1 178. The question of whether incidents involving the Israeli armed forces that occurred 
between 27 December 2008 and 18 January 2009 are likely to be the result of error, the activities 
of rogue elements or a deliberate policy or planning depends on a number of factors, including 
the degree and level of planning involved, the degree of discretion field commanders have in 
operations, the technical sophistication and specification of weaponry, and the degree of control 
commanders have over their subordinates. 

1 179. The Government of Israel has refused to cooperate with the Mission. The Mission has 
therefore been unable to interview high-level members of the Israeli armed forces. It has, 
nevertheless, reviewed a significant amount of commentary and conducted a number of 
interviews on planning and discipline, including with persons who have been connected with the 
planning of Israeli military operations in the recent past. The Mission has also analysed the 
views expressed by Israeli officials in official statements, official activities and articles, and 
considered comments by former senior soldiers and politicians. 

1. The context 

1 180. Before considering the issue of planning there is an important issue that has to be borne in 
mind about the context of Israeli operations in Gaza. The land mass of Gaza covers 360 square 
kilometres of land. Israel had a physical presence on the ground for almost 40 years with a 
significant military force until 2005. Israel's extensive and intimate knowledge of the realities of 
Gaza present a considerable advantage in terms of planning military operations. The Mission has 
seen grid maps in possession of the Israeli armed forces, for example, that show the 
identification by number of blocks of houses throughout Gaza City. 

1181. In addition to such detailed background knowledge, it is also clear that the Israeli armed 
forces were able to access the telephone networks to contact a significant number of users in the 
course of their operations. 565 

1 182. Since the departure of its ground forces from Gaza in 2005, Israel has maintained almost 
total control over land access and total control over air and sea access. 566 This has also included 



565 See "The operation m Gaza...", paras. 8, 24, 138, 264, 350, 354, 375, 389 and 447. 



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the ability to maintain a monitoring capacity in Gaza, by a variety of surveillance and electronic 
means, including UAVs. In short, Israel's intelligence gathering capacity in Gaza since its 
ground forces withdrew has remained extremely effective. 

2. Legal input and training of soldiers on legal standards 

1 183. The Israeli Government has set out the legal training and supervision relevant to the 
planning, execution and investigation of military operations. 567 The Mission also met Col. (Ret.) 
Daniel Reisner, who was the head of the International Legal Department of the Military 
Advocate General's Office of the Israeli Defense Forces from 1995 until 2004. In an interview 
with the Mission he explained how the principles and contents of international humanitarian law 
were instilled into officers. He explained the four-tiered training system, reflecting elements 
similar to those presented by the Government, which seeks to ensure knowledge of the relevant 
legal obligations for compliance in the field. Firstly, during training all soldiers and officers 
receive basic courses on relevant legal matters. The more senior the ranks, the more training is 
required "so that it becomes ingrained". Secondly, before a significant or new operation, legal 
advice will be given. Col. Reisner indicated that he understood from talking with colleagues still 
in active service that detailed consultations had taken place with legal advisers in the planning of 
the December- January military operations. He was not in a position to say what that advice had 
been. Thirdly, there would be real-time legal support to commanders and decision makers at 
headquarters, command and division levels (but not at regiment levels or below). The fourth 
stage is that of investigation and prosecution wherever necessary. 

1 184. The same framework explained by Col. Reisner appears to be repeated in similar detail in 
a presentation of the Office of the Legal Adviser to the Ministry of Foreign Affairs. 568 

3. The means at the disposal of the Israeli armed forces 

1 185. The Israeli armed forces are, in technological terms, among the most advanced in the 
world. 569 Not only do they possess the most advanced hardware in many respects, they are also a 
market leader in the production of some of the most advanced pieces of technology available, 
including UAVs. 570 They have a very significant capacity for precision strikes by a variety of 
methods, including aerial and ground launches. Moreover, some new targeting systems may have 
been employed in Gaza. 571 



566 See chap. IV. 

567 '"Yhg p era tion in Gaza... ", paras. 212-221. 

568 http://www.mfa.gov.ll/NR/rdonlyres/8DC5105D-A2Al-4709-9874-F42FlDlDA44B/0/ 
TaubGazaLegalAspects270509.pps . 

569 For a detailed breakdown of Israeli capacity, see http://www. inss. org. il/upload/(FILE)l 245235226.pdf . 

570 Ibid., pp. 8-9. 

571 According to the Israeli armed forces, the system, controlled by a computer and composed of 120 ml mortars, 
was developed for use by ground forces. "The Keshet weapons system is an autonomous mortar with the ability to 
aim and navigate independently. It fires at a fast speed and has the capacity to fire the first mortar accurately within 
a minute". See http://dover.idf.il/IDF/Enghsh/News/todav/2008n/04/1401.htm . 



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1 186. Taking into account all of the foregoing factors, the Mission, therefore, concludes that 
Israel had the means necessary to plan the December- January military operations in detail. Given 
both the means at Israel's disposal and the apparent degree of training, including training in 
international humanitarian law, and legal advice received, the Mission considers it highly 
unlikely that actions were taken, at least in the aerial phase of the operations, that had not been 
the subject of planning and deliberation. 572 In relation to the land-air phase, ground commanders 
would have had some discretion to decide on the specific tactics used to attack or respond to 
attacks. The same degree of planning and premeditation would therefore not be present. 
However, the Mission deduces from a review of many elements, including some soldiers' 
statements at seminars in Tel Aviv and to Breaking the Silence, that what occurred on the ground 
reflected guidance that had been provided to soldiers in training and briefing exercises. 573 

1 187. The Mission notes that it has found only one example where the Israeli authorities have 
acknowledged that an error had occurred. This was in relation to the deaths of 22 members of the 
al-Daya family in Zeytoun. The Government of Israel explained that its armed forces had 
intended to strike the house next door, but that errors were made in the planning of the 
operation. 574 The Mission expresses elsewhere its concerns about this explanation (see chap. XI). 
However, since it appears to be the only incident that has elicited an admission of error by the 
Israeli authorities, the Mission takes the view that the Government of Israel does not consider the 
other strikes brought to its attention to be the result of similar or other errors. 

1 188. In relation to air strikes, the Mission notes the statement issued in Hebrew posted on the 
website of the Israeli armed forces on 23 March 2009: 

Official data gathered by the Air Force concluded that 99 per cent of the firing that 
was carried out hit targets accurately. It also concluded that over 80 per cent of the bombs 
and missiles used by the Air Force are defined as accurate and their use reduces innocent 
casualties significantly. . , 575 

1 189. The Mission understands this to mean that in over 80 per cent of its attacks the Air Force 
deployed weapons considered to be accurate by definition - what are known colloquially as 
precision weapons as a result of guidance technology. In the other 20 per cent of attacks, 
therefore, it apparently used unguided bombs. According to the Israeli armed forces, the fact that 
these 20 per cent were unguided did not diminish their accuracy in hitting their targets, but may 
have caused greater damage than those caused by precision or "accurate" weapons. 



572 See "The operation in Gaza... ", para. 236. 



573 See, for example, a soldier's report of a junior officer's briefing before entering Gaza: "I want aggression. If we 
suspect a building we take down this building. If there's a suspect on one of the floors of that building we shell it. 
No second thoughts. It's either them or us. Let it be them. . . No one has second thoughts. Let error take their lives, 
not ours". See transcript from Channel Ten News on record with the Mission of soldiers speaking at a seminar in Tel 
Aviv. 

574 "jjjg p era tion in Gaza... ", paras. 385-387. The Israeli Government's comments in relation to the attack on a 
truck with oxygen tanks is somewhat more equivocal. The blame is put on the proximity of the tanks to alleged 
armed groups. Ibid., paras. 398-400. 

575 http://dover.idf.il/IDF/News Channels/todav/09/03/2301 .htm (Mission's own translation). 



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1 190. These represent extremely important findings by the Israeli Air Force. It means that what 
was struck was meant to be struck. It should also be borne in mind that the beginning of the 
ground phase of the operation on 3 January did not mean the end of the use of the Israeli Air 
Force. The statement indicates: 

During the days prior to the operation "Cast Lead", every brigade was provided with 
an escorting UAV squadron that would participate in action with it during the operation. 
Teams from the squadrons arrived at the armour and infantry corps, personally met the 
soldiers they were about to join and assisted in planning the infantry manoeuvres. The 
UAV squadrons had representatives in the command headquarters and officers in 
locations of actual combat who assisted in communication between the UAVs - operated 
by only two people, who are in Israeli territory - and the forces on the ground. The 
assistance of UAVs sometimes reached a ratio of one UAV to a regiment and, during 
extreme cases, even one UAV to a team. 

1191. Taking into account the ability to plan, the means to execute plans with the most 
developed technology available, the indication that almost no errors occurred and the 
determination by investigating authorities thus far that no violations occurred, the Mission finds 
that the incident and patterns of events that are considered in this report have resulted from 
deliberate planning and policy decisions throughout the chain of command, down to the standard 
operating procedures and instructions given to the troops on the ground. 

B. The development of strategic objectives in Israeli military thinking 

1 192. Israel's operations in the Occupied Palestinian Territory have had certain consistent 
features. In particular, the destruction of buildings, including houses, has been a recurrent tactical 
theme. 576 The specific means Israel has adopted to meet its military objectives in the Occupied 
Palestinian Territory and in Lebanon have repeatedly been censured by the United Nations 
Security Council, especially its attacks on houses. 577 The military operations from 27 December 
to 18 January did not occur in a vacuum, either in terms of proximate causes in relation to the 
Hamas/Israeli dynamics or in relation to the development of Israeli military thinking about how 
best to describe the nature of its military objectives. 

1 193. A review of the available information reveals that, while many of the tactics remain the 
same, the refraining of the strategic goals has resulted in a qualitative shift from relatively 
focused operations 578 to massive and deliberate destruction. 

1 194. In its operations in southern Lebanon in 2006, there emerged from Israeli military 
thinking a concept known as the Dahiya doctrine, as a result of the approach taken to the Beirut 



576 See, for example, Housing and Land Rights Network - Habitat International Coalition's submission to the 
Mission (pp. 12-28). 

577 Security Council resolutions 101 (1953), 106 (1955), 111 (1956), 171 (1962), 228 (1966), 248 (1968), 265 
(1969), 270 (1969), 313 (1972), 316 (1972), 332 (1973), 347 (1974), 450 (1979), 501 (1982), 515 (1982), 520 
(1982) and 1544 (2004). 

578 The reference to relatively focused operations here should not be misunderstood as an indication that all such 
actions were acceptable in terms of distinction and proportionality. It is merely a comparative reference. 



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neighbourhood of that name. 579 Major General Gadi Eisenkot, the Israeli Northern Command 
chief, expressed the premise of the doctrine: 

1 195. What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from 
which Israel is fired on. [. . .] We will apply disproportionate force on it and cause great damage 
and destruction there. From our standpoint, these are not civilian villages, they are military 
bases. [. . .] This is not a recommendation. This is a plan. And it has been approved. 580 

1 196. After the war in southern Lebanon in 2006, a number of senior former military figures 
appeared to develop the thinking that underlay the strategy set out by Gen. Eiskenot. In particular 
Major General (Ret.) Giora Eiland 581 has argued that, in the event of another war with 
Hizbullah, 582 the target must not be the defeat of Hizbullah but "the elimination of the Lebanese 
military, the destruction of the national infrastructure and intense suffering among the 
population. . . Serious damage to the Republic of Lebanon, the destruction of homes and 
infrastructure, and the suffering of hundreds of thousands of people are consequences that can 
influence Hizbollah's behaviour more than anything else". 583 

1 197. These thoughts, published in October 2008 were preceded by one month by the reflections 
of Col. (Ret.) Gabriel Siboni " 



•584 



With an outbreak of hostilities, the IDF will need to act immediately, decisively, and 
with force that is disproportionate to the enemy's actions and the threat it poses. Such a 
response aims at inflicting damage and meting out punishment to an extent that will 
demand long and expensive reconstruction processes. The strike must be carried out as 
quickly as possible, and must prioritize damaging assets over seeking out each and every 
launcher. Punishment must be aimed at decision makers and the power elite. . . In 
Lebanon, attacks should both aim at Hizbollah's military capabilities and should target 
economic interests and the centres of civilian power that support the organization. 
Moreover, the closer the relationship between Hezbollah and the Lebanese Government, 
the more the elements of the Lebanese State infrastructure should be targeted. Such a 
response will create a lasting memory among . . . Lebanese decision makers, thereby 
increasing Israeli deterrence and reducing the likelihood of hostilities against Israel for an 



579 During the 2006 Lebanon war, Israel inflicted massive destruction on Dahiya, which it considered to be a 
stronghold of Hizbullah. 

580 Ynet, "Israel warns Hizbullah war would invite destruction", 10 March 2008. 

581 Former Chief of the Israeli National Security Council, former National Security Adviser to the Prime Minister, 
and prior to that head of the IDF Operation Branch. 

582 Although Major General Eiland was writing about Lebanon and the Syrian Arab Republic, it is the suggestion of 
the objectives and the means of obtaining them that is striking in relation to what occurred in Gaza. 

583 Giora Eiland, "Lhe third Lebanon war: target Lebanon", Strategic Assessment, vol. 11, No. 2 (November 2008), 
p. 9. 

584 Colonel (Res.) of the IDF. Researcher for Institute for National Strategic Studies. Former fighter and commander 
in the Golani Brigade, completed his service as the brigade's reconnaissance unit commander. Within the scope of 
his reserve service, he served as senior staff officer of the Golani Brigade, Deputy Commander of the logistics unit, 
and Chief of Staff of an armoured division in the north. 



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extended period. At the same time, it will force Syria, Hizbollah, and Lebanon to commit 
to lengthy and resource-intensive reconstruction programmes. . . 

This approach is applicable to the Gaza Strip as well. There, 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. 585 

1 198. General Eisenkot used the language quoted above while he was in active service in a 
senior command position and clarified that this was not a theoretical idea but an approved plan. 
Major General Eiland, though retired, was a man of considerable seniority. Colonel Siboni, while 
less senior than the other two, was nonetheless an experienced officer writing on his field of 
expertise in a publication regarded as serious. 

1 199. The Mission does not have to consider whether Israeli military officials were directly 
influenced by these writings. It is able to conclude from a review of the facts on the ground that 
it witnessed for itself that what is prescribed as the best strategy appears to have been precisely 
what was put into practice. 

C. Official Israeli statements on the objectives of the military operations in Gaza 

1200. The Mission is aware of the official statements on the goals of the military operations: 

The Operation was limited to what the IDF believed necessary to accomplish its 
objectives: to stop the bombardment of Israeli civilians by destroying and damaging the 
mortar and rocket launching apparatus and its supporting infrastructure, and to improve 
the safely and security of Southern Israel and its residents by reducing the ability of 
Hamas and other terrorist organizations in Gaza to carry out future attacks. 586 

1201. The Israeli Government states that this expression of its objectives is no broader than 
those expressed by NATO in 1998 during its campaign in the Federal Republic of Yugoslavia. 

1202. The Mission makes no comment on the legality or otherwise of NATO actions there. 

D. The strategy to achieve the objectives 

1203. The issue that is of special concern to the Mission is the conceptualization of the 
"supporting infrastructure". The notion is indicated quite clearly in General Eisenkot's 
statements in 2006 and reinforced by the reflections cited by non-serving but well-informed 
military thinkers. 



585 Siboni, op. cit. This appears very similar to the so-called Dahiya doctrine. See, for example, Ed Blanche, Jane's 
Rockets and Missiles, 3 February 2009, citing Major General Gadi Eisenkot. 

586 See "The operation in Gaza... ", para. 83. 



A/HRC/12/48 
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1204. On 6 January 2009, during the military operations in Gaza, Deputy Prime Minister Eli 
Yishai 587 stated: "It [should be] possible to destroy Gaza, so they will understand not to mess 
with us". He added that "it is a great opportunity to demolish thousands of houses of all the 
terrorists, so they will think twice before they launch rockets". "I hope the operation will come to 
an end with great achievements and with the complete destruction of terrorism and Hamas. In 
my opinion, they should be razed to the ground, so thousands of houses, tunnels and industries 
will be demolished". He added that "residents of the South are strengthening us, so the operation 
will continue until a total destruction of Hamas [is achieved]". 588 

1205. On 2 February 2009, after the end of the military operations, Eli Yishai went on: "Even if 
the rockets fall in an open air or to the sea, we should hit their infrastructure, and destroy 

100 homes for every rocket fired " 589 

1206. On 13 January 2009, Israel's Foreign Minister, Tzipi Livni, was quoted as saying: 

We have proven to Hamas that we have changed the equation. Israel is not a country 
upon which you fire missiles and it does not respond. It is a country that when you fire on 
its citizens it responds by going wild - and this is a good thing. 590 

1207. It is in the context of comments such as these that the massive destruction of businesses, 
agricultural land, chicken farms and residential houses has to be understood. In particular, the 
Mission notes the large-scale destruction that occurred in the days leading up to the end of the 
operations. During the withdrawal phase it appears that possibly thousands of homes were 
destroyed. The Mission has referred elsewhere in this report to the "day after" doctrine, 591 as 
explained in the testimonies of Israeli soldiers, which can fit in with the general approach of 
massively disproportionate destruction without much difficulty. 

1208. The concept of what constituted the supporting infrastructure has to be understood not 
only in the context of the military operations of December and January, but in the tightening of 
the restrictions of access to goods and people into and out of Gaza, especially since Hamas took 
power. The Mission does not accept that these restrictions can be characterized as primarily an 
attempt to limit the flow of materials to armed groups. The expected impact, and the Mission 
believes primary purpose, was to bring about a situation in which the civilian population would 



587 During the military operation in Gaza, Eli Yishai served as Deputy Prime Minister and Minister of Industry, 
Trade, and Labour in the Government of Mr. Olmert. He serves in the current Government headed by Mr. 
Netanyahu as Internal Affairs Minister as well as Deputy Prime Minister. During the military operations in Gaza, he 
was also a member of the Security Cabinet for National Security within the Israeli Cabinet. Its duties include setting 
the targets of the security system and its policies; questions related to the Israeli armed forces, issues related to 
intelligence, foreign policy, military and security operations, and coordination of the activities of the Government in 
"Judea, Samaria and Gaza". See http://www.pmo.gov.il/PMO/Archive/Decisions/2006/05/des20.htm (in Hebrew). 

588 i 



589 



' http ://news. walla. co. il/?w=//l 4 12570 (in Hebrew). 
http://www.ynet. co. il/Ext/Comp/ArticleLayout/CdaArticlePrintPreview/l,2506,L-3665452, 00. html (2 February 



2009, in Hebrew). 

590 The Independent, Israeli cabined divided over fresh Gaza surge, 13 January 2009. 

591 See chap. XIII. 



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find life so intolerable that they would leave (if that were possible) or turn Hamas out of office, 
as well as to collectively punish the civilian population. 

1209. The Israeli Government has stated: 

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 

• • 592 

institutions, to promote its terrorist activity. 

1210. The framing of the military objectives Israel sought to strike is thus very wide indeed. 
There is, in particular, a lack of clarity about the concept of promoting "terrorist activity": since 
Israel claims there is no real division between civilian and military activities and it considers 
Hamas to be a terrorist organization, it would appear that anyone who supports Hamas in any 
way may be considered as promoting its terrorist activity. Hamas was the clear winner of the 
latest elections in Gaza. It is not far-fetched for the Mission to consider that Israel regards very 
large sections of the Gazan civilian population as part of the "supporting infrastructure". 

121 1. The indiscriminate and disproportionate impact of the restrictions on the movement of 
goods and people indicates that, from as early as some point in 2007, Israel had already 
determined its view about what constitutes attacking the supporting infrastructure, and it appears 
to encompass effectively the population of Gaza. 

1212. A statement of objectives that explicitly admits the intentional targeting of civilian objects 
as part of the Israeli strategy is attributed to the Deputy Chief of Staff, Maj. Gen. Dan Harel. 
While the Israeli military operations in Gaza were under way, Maj . Gen. Harel was reported as 
saying, in a meeting with local authorities in southern Israel: 

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. 593 

E. Conclusions 

1213. The Israeli military conception of what was necessary in a future war with Hamas seems 
to have been developed from at least the time of the 2006 conflict in southern Lebanon. It finds 
its origin in a military doctrine that views disproportionate destruction and creating maximum 



592 " j^ p era tion in Gaza. . . ", para. 235. 

593 Ynet, "Deputy chief of staff: worst still ahead" 



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disruption in the lives of many people as a legitimate means to achieve military and political 
goals. 

1214. Through its overly broad framing of the "supporting infrastructure", the Israeli armed 
forces have sought to construct a scope for their activities that, in the Mission's view, was 
designed to have inevitably dire consequences for the non-combatants in Gaza. 

1215. Statements by political and military leaders prior to and during the military operations in 
Gaza leave little doubt that disproportionate destruction and violence against civilians were part 
of a deliberate policy. 594 

1216. To the extent to which statements such as that of Mr. Yishai on 2 February 2009 indicate 
that the destruction of civilian objects, homes in that case, would be justified as a response to 
rocket attacks ("destroy 100 homes for every rocket fired"), the Mission is of the view that 
reprisals against civilians in armed hostilities are contrary to international humanitarian law. 595 
Even if such actions could be considered a lawful reprisal, they do not meet the stringent 
conditions imposed, in particular they are disproportionate, 596 and violate fundamental human 
rights and obligations of a humanitarian character. 597 One party's targeting of civilians or civilian 
areas can never justify the opposing party's targeting of civilians and civilian objects, such as 
homes, public and religious buildings, or schools. 

XVII. THE IMPACT OF THE BLOCKADE AND OF THE MILITARY 
OPERATIONS ON THE PEOPLE OF GAZA AND THEIR 
HUMAN RIGHTS 

"A military commander 's obligation does not end with avoiding harm to the lives and 
the dignity of the local residents, a "negative obligation ", but his obligation is also 
"positive "- he must protect the lives and dignity of the residents, within the constraints 
of the time and place.... " Justice Barak (HCJ 764/04) 

"As long as Israel has control of the transfer of necessities and the supply of 
humanitarian needs to the Gaza Strip, it is bound by the obligations of international 
humanitarian law to allow the civilian population to have access, inter alia, to medical 
facilities, food and water, as well as additional humanitarian items ". 
Justice Beinisch (HCJ 201/09) 

1217. During its visits to the Occupied Palestinian Territory, and its meetings and hearings in 
Gaza, Amman, Geneva and other places, the Mission saw for itself and received reports and 



594 Highlighting the pattern of military actions targeting civilian shelters and shelter seekers, the Habitat 
International Coalition concludes: "The official statements that accompany these actions [... ] seem to reflect a 
presumption that any source of brutality against the indigenous inhabitants would convert the victims into agents of 
the attackers' preferred outcome: defeat of resistance" (submission, cited, p. 40). 

595 See Additional Protocol I, art. 51 (6). 

Customary International Humanitarian Law . . . , pp. 51 3-5 18. 

597 See also article 50 of the articles on responsibility of States for internationally wrongful acts of the International 
Law Commission (General Assembly resolution 56/83, annex). 



A/HRC/12/48 
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testimonies about the negative effects that the severe restrictions on the movement of goods and 
people from and to the Gaza Strip had caused to the full enjoyment of a range of social, 
economic and civil rights by women, men and children. These reports and testimonies come 
from a variety of sources, including businesspeople, industry owners, ordinary residents, public 
officials and NGOs in the Occupied Palestinian Territory and abroad. 

1218. People in Gaza, as in other parts of the Occupied Palestinian Territory, have been living 
under foreign occupation for decades and enduring the restrictions and other effects of the 
policies implemented by the occupying Power. While the start of the blockade and the most 
recent military operations have undoubtedly added to those restrictions and scarcities, people in 
Gaza have not been living in what can be called a "normal" situation for a long time. 

1219. The restrictions imposed by Israel on the imports to and exports from the Gaza Strip 
through the border crossings as well as the naval and airspace blockade have had a severe impact 
on the availability and accessibility of a whole range of goods and services necessary for the 
people of Gaza to enjoy their human rights. Their already eroded ability to access and buy basic 
goods was compounded by the effects of the four- week Israeli military campaign, which further 
restricted access to those essential items and destroyed goods, land, facilities and infrastructure 
vital for the enjoyment of their fundamental rights. In conjunction, the blockade and the military 
hostilities have created a situation in which most people are destitute. Women and children have 
been particularly affected. The current situation has been described as a crisis of human 
dignity. 598 

A. The economy, livelihoods and employment 

1220. The Mission received information about the state of the economy, employment and family 
livelihoods in the Gaza Strip. Before the December- January military operations, the Gaza 
economy was already in dire straights, with few business sectors able to operate at full capacity. 
The blockade restricted or denied entry to a range of items and energy necessary for the 
economy to function. These included fuel and industrial diesel for the Gaza power plant to 
produce enough electricity for factories and businesses to function and for agricultural activities 
to continue on a regular basis. The net result was a stalled economy, with many businesses, 
factories and farms either closed or operating at reduced capacity. 

1221. Electricity was purchased directly from Israel (51 per cent) and Egypt (7 per cent), while 
the Gaza power plant produced only 34 per cent, leaving an 8 per cent electricity deficit. 
Following additional cuts by Israel in the supply of industrial fuel, the Gaza power plant further 
reduced its output. The shortage of fuel caused the plant to malfunction, while the lack of spare 
parts and maintenance is likely to damage the plant in the long term. 599 According to OCHA, the 
electricity shortfall in the Gaza Strip was 41 per cent by 15 December 2008. Cooking gas was 
also restricted although less drastically. 



598 WHO report 2009, p. 8. 



599 OCHA, "Gaza humanitarian situation report: the impact of the blockade on the Gaza Strip", 15 December 2008. 



A/HRC/12/48 
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1222. Raw materials, equipment, spare parts and other inputs necessary for industrial and 
agricultural activity were not allowed into the Gaza Strip either. 

1223. The consequences for day-to-day life were considerable. Some areas of the Gaza Strip 
were left without electricity for several hours a week, many households, especially those in 
buildings that depend on the use of water pumps, had access to water only a few hours a week. 
Intermittent electricity supply damaged medical equipment in hospitals and doctors' practices, 
and generally disrupted civilian life. The operation of sewage treatment facilities was also 
reduced and increased quantities of untreated sewage were dumped into the sea, causing public 
health risks and pollution, which in turn affected fishing. 

1224. Several companies closed or cut back their operations, laying off employees, who 
consequently lost their livelihoods. Information provided to the Mission covering June 2007 to 
July 2008 showed that 98 per cent of industries were temporarily shut down and five 
establishments were relocated to the West Bank and Jordan. Around 16,000 workers were laid 
off. The ban on all exports caused losses for the agricultural sector estimated at US$ 30 million 
up until July 2008 and 40,000 jobs lost. Similarly, the construction sector endured severe losses 
resulting from the halt in development projects and other construction projects owing to the 
absence of construction materials. Some 42,000 workers were reported to have lost their jobs as 
a result. 600 Those who were laid off searched for employment in other sectors, such as 
agriculture, or joined the ranks of those who live on food assistance from the United Nations and 
aid agencies. 

1225. As a result of the closure of the crossings to the transit of people, many families also lost 
the financial support they had from relatives, usually the male head of the family, who used to 
work abroad, either in Israel or in neighbouring Arab countries. 601 In its submission to the 
Mission, UNCTAD stated that 15.4 per cent of Gaza's labour force was employed in Israel by 
2000. 602 In his presentation to the Mission, the economist Shir Hever explained that by 2009 no 
one from Gaza could find work in Israel. Even Palestinian workers from the West Bank mostly 
work in industrial zones in settlements rather than in Israel. 603 

1226. By December 2008 the destructive impact of the blockade on the local economy had 
doubled unemployment levels. While in 2007 79 per cent of households lived below the official 
poverty line (US$ 4 per capita/day) and some 70 per cent below the deep poverty line (US$ 3 per 
capita/day), these figures were expected to increase by the end of 2008 - even before the Israeli 
military operations. The Mission received information from organizations explaining how the 
agricultural sector had traditionally absorbed unemployed workers from other sectors, but in the 
circumstances imposed by the blockade, without fertilizers, pesticides, machinery, spare parts 



600 Palestine Trade Center (PALTRADE), "Gaza Strip: A year through siege", July 2008. 

601 GISHA Legal Center for Freedom of Movement and Physicians for Human Rights - Israel, Rafah Crossing: Who 
holds the keys? (March 2009). 

602 UNCTAD submission, p. 4. 

603 Mission meeting with Shir Hever, Alternative Information Centre, 2 July 2009. 



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and, crucially, without access to markets, it could no longer fulfil the role of shock absorber. 604 
In its submission to the Mission, UNCTAD noted that when the industrial and agricultural 
sectors lost their capacity to provide jobs, public administration and services absorbed up to 
54 per cent of Gaza's labour force (up from 37 per cent in 1999). UNCTAD concluded: 

The ultimate impact of this momentum is the systematic erosion of the Palestinian 
productive base to deprive them from the ability to produce and feed themselves, and turn 
them into poor consumers of essential goods imported mainly from Israel and financed 
mainly by donors. 

1227. The military operations destroyed a substantial part of the Gaza Strip's economic 
infrastructure and its capacity to support decent livelihoods for families. Many factories and 
businesses were directly targeted and destroyed or damaged. Poverty, unemployment and food 
insecurity increased dramatically. 

1228. Information provided to the Mission showed that some 700 private (industry and trade) 
businesses were damaged or destroyed during the military operations, with direct losses totalling 
approximately US$ 140 million. The industrial sector appeared the most affected, as it suffered 
61 per cent of those losses, in particular in the sub-sectors of construction and food. 605 Because 
of the extent and gravity of the destruction inflicted on the industrial sector, businesspeople and 
industrialists who spoke to the Mission stated their belief that Israel had as one of its military 
objectives the destruction of local industrial capacity so as to harm the prospects for an economic 
recovery in the Gaza Strip. 606 

1229. The severe restrictions on the availability of banknotes imposed by Israel caused serious 
disruptions in economic transactions and affected the ability of the public sector and the non- 
governmental sector to carry out operations such as contracting or procuring goods and services. 

1230. The agricultural sector, including crop farming, fisheries, livestock farming and poultry 
farming, suffered direct losses worth some US$ 170 million. Indirect losses have still to be 
definitively calculated. One business organization estimates that 60 per cent of all agricultural 
land had been destroyed, 40 per cent directly during the military operations. 607 Moreover, 17 per 
cent of all orchards, 8.3 per cent of livestock, 2.6 per cent of poultry, 18.1 per cent of hatcheries, 
25.6 per cent of beehives, 9.2 per cent of open fields and 13 per cent of groundwater wells were 
destroyed. Agriculture had already lost a third of its capacity since the start of the second intifada 
and the frequent Israeli incursions, according to NGO estimates used by UNDP-Gaza. 608 Parts of 



604 Meetings with representatives from the agricultural sector in Gaza, 30 June 2009; meeting with representatives of 
Campaign to End the Siege, Gaza, 29 June 2009. 

605 Private Sector Coordination Council Gaza Governorates, "Gaza private sector: Post-war status and needs", 
25 February 2009. 

606 Interviews with Amr Hamad of the Palestinian Federation of Industries and with Ali Abu Shalah of the 
Palestinian Business Association. 

607 c 



608 



'Gaza private sector: post-war status. . . ", p. 5. 

UNDP, FAO and Ministry of Agriculture, "Assessment of impact of cast lead operation: estimated direct losses 



to agriculture in the Gaza Strip between 27 December 2008 and 18 January 2009". 



A/HRC/12/48 
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the land were reportedly contaminated by unexploded munitions and chemical weapons residues 
(e.g. white phosphorous) and would need to be tested and cleared before agricultural activity 
could resume. 609 Some 250 agricultural wells were reportedly destroyed or severely damaged. 

123 1 . Fishing that provided direct employment to some 3,000 people was also affected by the 
blockade and the military operations. Several boats and some fishermen were directly hit. The 
Mission met representatives of fishermen's associations and a fisherman testified at the public 
hearings in Gaza. 610 One fisherman interviewed by the Mission explained that he had previously 
owned a fishing boat, mainly to fish sardines. It was hit by shelling as it was moored beside the 
civil defence buildings that were hit by air strikes on 27 December. Half of it was destroyed. 
Another small boat was also destroyed as were the nets. The family house was also destroyed 
and he had been out of work since the beginning of the military operations in December. 
However, his fishing activities had already been affected before the operations, when the 
Government of Israel had imposed a limit of six nautical miles for fishing, and then further 
reduced it to only three. 611 

1232. The continuation of the blockade does not permit the reconstruction of the economic 
infrastructure that was destroyed. Not only do construction materials continue to be banned but 
the provision of energy is also still insufficient and irregular. Local purchasing capacity being 
shattered, there is not enough market demand for many products. 

1233. Exports also continue to be prohibited, with the exception of some truckloads of flowers 
that crossed the borders between January and March 2009. Without external markets, local 
production of all kinds has no prospect and so employment and livelihoods will remain 
precarious and diminished. A strawberry farmer and the Head of the Association of Strawberry 
Farmers based in Beit Lahia explained that before the military operations he used to export up to 
2,000 tons of strawberries to Europe. Hundreds of donums of land were destroyed during the 
operations as well as some 300 greenhouses and 2,000 acres of citrus trees. As a result, they had 
lost the European market for their products. 612 

B. Food and nutrition 

1234. The availability of food in the Gaza Strip is determined by the amount imported through 
the crossings and that which is locally produced. The Mission received credible information 
indicating that during the months preceding the military operations both sources of food suffered 
from the severe restrictions imposed by Israel. 

1235. The closing of the Kami grain conveyor belt, the only mechanism for importing wheat, 
during part of December, resulted in the depletion of wheat stocks, forcing the six mills in the 
Gaza Strip to close down or reduce operations. The el-Bader flour mill appeared to be the only 



609 "Gaza private sector: post-war status. . . ", p. 5; FAO, "Impact of Gaza crisis: Agricultural sector report", p. 16; 
WHO Report, p. 29. 

610 Public hearings, Gaza, 29 June 2009. 

611 Meeting with the Mission, Gaza, 3 June 2009. 

612 Meeting with the Mission, Gaza, 3 June 2009. 



A/HRC/12/48 
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one that kept working as its owners had kept a good stock of grain, but it was later bombed and 
destroyed (see chap. XIII). However, about one third of the previous number of truckloads of 
wheat continued entering through the Kerem Shalom crossing. The blockade was tightened 
following the confrontations of November 2008, further restricting United Nations food 
assistance. On 18 December, UNRWA was compelled to halt its food distribution programme to 
thousands of families because its stocks were depleted. It also had to downsize its cash-for-work 
programmes as it ran out of banknotes. 

1236. By December 2008 food insecurity was on the rise. Food security is the capacity of each 
individual to have access to sufficient and adequate food at all times. The Mission received 
information indicating that rising food insecurity was the result falling income levels, eroded 
livelihoods and higher food prices. Some food items were also unavailable in the local markets. 
Consequently, the average Gazan household was spending two thirds of its income on food. 613 
People had to reduce the quantity and the quality of food they ate, shifting a diet based on 
low-cost and high-energy cereals, sugar and oil. 

1237. Changes in diet patterns are likely to prejudice the long-term health and nutrition of the 
population. According to the WHO office in Gaza, there are indications of chronic micronutrient 
deficiencies among the population, in particular among children. Among the most worrying 
indicators is the high prevalence of stunting among 6- to 16-year-old children (7.2 per cent), 
while the prevalence of thinness among that group was 3.4 per cent for 2008 (the WHO standard 
is 5 per cent). Levels of anaemia are alarming: 66 per cent on average among 9- to 12-month-old 
babies (the rate being higher for girls (69 per cent)). On average, 35 per cent of pregnant women 
suffer from anaemia. 614 

1238. During the military operations the availability and quality of fresh food dropped: local 
production was suspended during the fighting and local produce was spoilt. Mr. Muhammad 
Husein al-Atar, Mayor of al-Atatra, told the Mission how agricultural land in his neighbourhood 
was razed. The area is close to the Israeli border and 95 per cent of the work is farming-related. 
Israeli military incursions had been happening since 2000 accompanied by destruction and 
bulldozing. As a result, 50,000 acres of land had not a single tree left standing and between 

10 and 15 farmers had been killed every year during the last nine years. During the December - 
January military operations the area was bombed from the air, land and sea. He had personally 
lost three (industrial) refrigerators, each capable of holding 600 tons of vegetables, for instance. 
His sister's chicken farms were also destroyed, including some 70,000 chickens (see chap. 
XIII). 615 

1239. The destruction of land and greenhouses has an impact on the availability of fresh food 
in the Gaza Strip and, consequently, on the total supply of micronutrients to the population. 
Satellite imagery commissioned by the Mission shows that for the whole Gaza Strip an estimated 
187 greenhouse complexes were either destroyed or severely damaged, representing 
approximately 30.2 hectares. Of all the destroyed greenhouses 68.6 per cent were in the Gaza 



613 "Gaza humanitarian situation report: the impact. 



614 Nutrition indicators for 2008 and 2009 provided by WHO office in Gaza to the Mission. 

615 Meeting with the Mission, 3 June 2009. 



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and Gaza North Governorates; and 85.4 per cent were destroyed or damaged during the last 
week of the military operations. Satellite imagery also gives strong indications that tanks and/or 
heavy vehicles were likely to have been responsible for most of the damage. 616 

1240. Despite the increased quantities of food allowed into Gaza since the beginning of 
hostilities, representing between 60 and 80 per cent of all truckloads, wheat flour was in short 
supply. This was probably the result of the severe depletion of local stocks following the tighter 
restrictions during December. After the ceasefire was declared by the parties to the conflict, 
access to food remained problematic for most people many prices had risen and there was a lack 
of income and banknotes. It was reported that the military operations caused food insecurity to 
increase and affect up to 75 per cent of the population. 617 

1241. In a rapid assessment, FAO and the World Food Programme (WFP) found that food 
availability was back to pre-military operations levels, but the supply of fresh food was likely 
to decrease in the immediate future due to the large-scale destruction. Prices continued to be 
very high and some items were prohibitively expensive (e.g. poultry, eggs and meat) and 
unaffordable. However, severe access problems persisted and were aggravated for a population 
whose income and livelihoods had been shattered, despite the food assistance provided by the 
United Nations and aid agencies. 618 

C. Housing 

1242. Figures about the overall damage to residential housing vary according to the source and 
time of the measurement as well as the methodology. The human rights NGO Al Mezan reports 
that a total 11,135 homes were partially or fully destroyed" 9 According to the human rights 
NGO Al-Dameer-Gaza, 2,011 civilian and cultural premises were destroyed, of which 1,404 
were houses that were completely demolished and 453 were partially destroyed or damaged. 620 A 
UNDP survey immediately after the end of military operations reported 3,354 houses completely 
destroyed and 1 1,1 12 partially damaged. 621 The destruction was more serious in the north, where 
65 per cent of houses were completely destroyed. As a result of the destruction, more than 

600 tons of rubble had to be removed, with the consequent costs and potential impact on the 
environment and public health. Information provided to the Mission showed that much of the 
construction in Gaza contained important amounts of asbestos, the particles of which had been or 
could be released into the air at the time of destruction or removal. The refugee population was 
concentrated in the north and the destruction of residential housing appeared to have particularly 
affected them. 



616 UNOSAT satellite imagery, p. 23. See also chap. XIII. 

617 OCHA, The Humanitarian Monitor, No. 33 (January 2009). 

618 FAO and WFP, "Report of the rapid qualitative emergency food security assessment - Gaza Strip", 24 February 
2009. 

619 Al Mezan Center for Human Rights, "Cast lead offensive in numbers". 

620 Al-Dameer Gaza, "IOF targets civilian premises and cultural properties during its offensive on the Gaza Strip", 
May 2009. 

621 The Humanitarian Monitor, No. 33, p. 7. A figure similar to this was provided by the Palestinian Authority in its 
reply to questions by the Mission, 5 August 2009. 



A/HRC/12/48 
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1243. The destruction or damage of their homes forced many people to flee and find shelter with 
relatives or agencies providing assistance, such as UNRWA. At the height of the military 
operations UNRWA was providing shelter to 50,896 displaced persons in 50 shelters. This 
number was estimated to be a fraction of those who had become homeless, most of whom found 
temporary shelter with relatives. The Mission was informed that this situation created extreme 
hardship for people who had to share already deteriorated and limited housing, sanitary and 
water facilities. It saw for itself people who were still living in tents some six months after the 
end of the operations. 

1244. Children and women were particularly affected by the hardship caused by the destruction 
of homes and the displacement. Housing and Land Rights Network - Habitat International 
Coalition reported that "of those forced to seek shelter following the military damage or 
destruction of their home, over half were children. While female-headed households constitute 
only a relatively small percentage of the total affected families (7 per cent), their number in 
absolute terms, 763 such families, is significant." 622 

1245. The impact of the destruction of housing is aggravated by the substantial destruction of 
the Gaza construction industry during the military operations. In chapter XIII, the Mission 
described the destruction of the Atta Abu Jubbah cement-packaging plant, which formed a 
significant part of the construction materials industry in Gaza. The Mission also noted reports 
regarding the destruction of 19 producing plants (representing 85 per cent of the production 
capacity of the Gaza factories of ready -mix concrete). External supplies of concrete and other 
building materials into Gaza are entirely controlled by Israel, which has banned imports of 
cement into Gaza. The thousands of families who have lost their shelter as a result of the military 
operations are therefore prevented by the blockade imposed by Israel from rebuilding their 
homes. 

D. Water and sanitation 

1246. The Mission received submissions, testimonies and information about the effects of the 
blockade and of the military operations on the supply of and access to water and sanitation 
facilities by the population of the Gaza Strip. 623 During the months preceding the military 
operations the water and sanitation sectors were already under severe strain. The lack of 
construction materials, pipes and spare parts had prevented the building of additional 
infrastructure and the proper maintenance of existing facilities. Desalinization plants and works 
to preserve the aquifer had to be postponed. By December 2008, OCHA reported that the 
degradation of the system "is posing a major public health hazard". 624 Frequent power outages, 
fuel shortages and a lack of spare parts for electricity generators had also affected the functioning 
of the water and sanitation systems. 



622 Submission to the Mission by Housing and Land Rights Network — Habitat International Coalition, "Targeting 
shelters and shelter seekers during operation Cast Lead in the context of Israeli military practice". 

623 Submission by the Centre on Housing Rights and Evictions (COHRE); Al Mezan Center for Human Rights, 
"The impact of the Israeli offensive on the right to water in the Gaza Strip", February 2009. 

624 "Gaza humanitarian situation report: the impact. . . ". 



A/HRC/12/48 
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1247. By December 2008, it was reported that some 80 per cent of Gaza's water wells were only 
partially functioning while the others were not functioning at all. This situation had already 
affected the population's access to water: over half of the residents of Gaza City had access to 
running water few hours a week, with those living in houses and buildings using water pumps 
spending many hours trying to get water by other means. Of the water supplied in Gaza 80 per 
cent did not meet WHO standards for drinking water owing to, among other factors, the shortage 
of chlorine to purify the water. Important health risks were consequently likely to arise. Other 
health hazards were expected to arise from the practice of discharging untreated or partially 
treated wastewater into the sea. More than 70 million litres a day were discharged into the sea, 
creating significant environmental damage and health risks for human beings and marine life. 

1248. As with other sectors, the military operations worsened the situation in the water and 
sanitation sector. Services and infrastructure already partially paralysed or in serious need of 
maintenance suffered further destruction or damage. The Gaza wastewater treatment plant was 
hit sometime between 3 and 10 January and one of its lagoons was severely damaged (see 
chap. XIII). Sewage pipes leading to the plant and others in different parts of the city were hit or 
damaged. Up to 11 water wells that supplied water for human consumption were hit and 

3 completely destroyed. 625 Thousands of metres of water and sewage pipes/networks were 
destroyed or damaged and around 5,700 rooftop water tanks destroyed and some 2,900 damaged. 

1249. By the end of January only 70 per cent of Gaza's water wells were working, either 
whether fully or partially, i.e. 10 per cent less than before the hostilities. At the height of the 
military operations some 500,000 Palestinians did not have access to running water at all, 
whereas the rest received water for few hours a week. Sanitation and water facilities in public 
shelters were overwhelmed, and raw sewage ran through fields and streets in some areas. The 
water authorities' reparations team were prevented from going to the sites to carry out urgent 
repairs and had to wait in most cases until Israeli troops had withdrawn. All urgent repairs were 
done on a provisional basis given the lack or shortage of construction materials and equipment. 
The Mission witnessed how precarious those repairs could be when it saw one sewage pipe in 
the vicinity of the Gaza wastewater treatment plant explode during a site visit. 

E. Environment 

1250. The Mission has received comments and concerns from non-governmental organizations 
and concerned individuals in Gaza relating to threatened environmental damage by reason of 
munitions or debris from munitions. These concerns relate to the fear that hazardous material 
might have remained or will remain in the soil and water of parts of the Gaza Strip for indefinite 
periods of time and could enter the food chain or otherwise be hazardous to life. 

125 1 . The Mission was unable to further investigate these concerns, but is aware of an 
environmental impact study being undertaken by the United Nations Environmental Programme 
(UNEP) in the Gaza Strip. Preliminary results from UNEP indicate that the environment in the 
Gaza Strip has been seriously impacted by the Israeli military operations of December- January. 



625 "Damage assessment report. . . ". Al Mezan reports that 112 wells were destroyed but it clarifies that this figure 
includes agricultural wells; COHRE submission to the Mission. 



A/HRC/12/48 
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In particular, the groundwater in Gaza show high nitrate levels exceeding WHO ceilings, putting 
infants at risk of nitrate poisoning. 

F. Physical and mental health 

1252. The capacity of the health sector in the Gaza Strip was already diminished by the 
blockade when the Israeli offensive started. While hospitals and clinics continued operating, the 
quality of their service and its accessibility were eroded. The insufficient and erratic supply of 
electricity caused equipment to malfunction even when the staff had recourse to generators. 
Power cuts and water impurities damaged equipment and created additional health hazards. The 
lack of maintenance and spare parts that were blocked at the crossings further compounded the 
situation. In addition, the lack of construction materials and inputs hampered the development of 
additional facilities and needed infrastructure. 

1253. Reported confrontation between the Palestinian Authority in Ramallah and the Gaza 
authorities also affected the quantity and quality of the service provided. The Ministry of Health 
in Ramallah had been responsible for the supply of medicines to Gaza since September 2008, but 
it was reported that few trucks with medicines actually reached the Gaza Strip after that time 
resulting in serious availability problems for some 20 per cent of essential medicines. The 
referral of patients needing specialized treatment abroad (e.g. in Israel, Jordan and Egypt) was 
also affected by the blockade established in 2007. Before that date only some 9 per cent of 
patients intending to cross the border were rejected or their permits delayed, but that proportion 
had reached some 22 per cent by September 2008. 626 

1254. The beleaguered health sector was subjected to severe strain when the military operations 
started on 28 December. Hospitals and health centres of the Ministry of Health worked on an 
emergency basis under extremely difficult conditions and with limited resources. They 
nevertheless responded effectively to the crisis. Urgent medical interventions to treat critical 
injuries were performed under severe circumstances. Of the 5,380 injured people reported by the 
Ministry, 40 per cent were admitted to the main hospitals, but because of the policy of 
discharging patients as soon as feasible to free up beds and staff, there were concerns that some 
injuries (e.g. burns and acute surgical conditions) might have led to complications as follow-up 
care may have been inadequate. Some injuries will result in permanent disability (see also 
section G below). 

1255. Medical facilities and personnel were targeted during the fighting. Seventeen health 
personnel were killed and 26 injured. In total, 29 ambulances were damaged or destroyed by 
bombs or crushed by armoured vehicles, while 48 per cent of Gaza's 122 health facilities were 
either directly or indirectly hit by shelling. Medical relief and rescue were in many cases also 
intentionally hindered. 

1256. OCHA reported that medical supplies, including drugs and equipment, were allowed into 
the Gaza Strip in larger quantities during January in the midst of the fighting. However, logistical 
difficulties and the fact that many medicines had a very short expiration date prevented the 
health staff from using the increased quantities for the benefit of patients. Finally, the situation of 



626 WHO Report... .; "Gaza humanitarian situation report: the impact. 



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patients with chronic health conditions, such as heart and kidney problems, became a concern 
because patients with critical life-threatening injuries requiring urgent attention were given 
priority. 627 

1257. The destruction of sewage treatment facilities and pipes together with the lack of 
purifying materials had consequences for public health. Thousands of litres of untreated sewage 
dumped in fields or in the sea created a potential health hazard. The Mission received 
information about recent epidemiological tests of water samples. The samples had been collected 
from all water networks and wells, especially from areas targeted during the military operations, 
to investigate the presence of microbiological pollutants. Information on water-related diarrhoea 
among children under age 3 attending UNRWA facilities was collected weekly in January and 
February 2009. The analyses showed an increase of 18 per cent between 19 January and 8 
February. Moreover, 14 per cent of the water samples collected in February were polluted with 
microbiological pollutants. The increase in diarrhoeal disease was also confirmed to have 
occurred in the areas where the water had been contaminated. 628 

1258. WHO also cited the preliminary results from UNEP initial sampling in Gaza, which 
showed that "much of the rubble is contaminated with asbestos; damage to the waste treatment 
system had contaminated the aquifer; the health waste handling system had completely broken 
down, with such waste going into domestic waste. The results on heavy metal contamination are 
so far inconclusive." 629 The Mission also investigated and confirmed allegations about the use of 
weapons whose potential long-term impact on individual victims' health raises concern. They 
include allegations of the use of weapons containing chemical pollutants such as tungsten and 
white phosphorus (see also chapter XII). 630 

1259. Conditions under Israeli occupation prior to 2005, together with poverty and the 
difficulties caused by the blockade, had already made a deep impact on the mental health of the 
local population. The three weeks of intense bombardment and military ground action added 
new, serious psychological traumas, especially noticeable in children. According to Dr. Iyad 

al Sarraj of the Gaza Community Mental Health Programme, over 20 per cent of Palestinian 
children in Gaza suffer from post-traumatic stress disorders, the symptoms of which "will appear 
over the days, months, years, or decades to come". 631 

1260. One particular characteristic of the conflict, namely that the population could not flee the 
conflict areas as can be done in many conflicts, and had no shelters or safe places in which to 
hide or protect themselves, reinforced feelings of being trapped, defenceless and vulnerable to 
more attacks with a sense of inevitability. 632 Many of those who met the Mission stated that they 
felt terrorized. 



627 The Humanitarian Monitor, No. 33. 

628 WHO, "Quality of water in the Gaza Strip", March 2009. 

629 WHO Report, p. 29. 

630 Report of the Mission by Physicians for Human Rights-Israel, p. 75-76. 

631 Public hearing, Gaza, 29 June 2009. 

632 WHO report, p. 12. 



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1261. According to Dr. Ahmad Abu Tawahina, psychosomatic disorders have a particularly 
serious impact on Palestinian society, where social stigma is often associated with mental 
suffering. In general, this makes it difficult for people to express psychological problems. This 
condition is frequently experienced in the form of recurrent psychosomatic symptoms, such as 
migraines, pains in joints and muscles, general fatigue and the inability to do even normal daily 
activities. Most of these patients are referred not to mental health practitioners, but to general 
physicians, who prescribe drugs to alleviate the symptoms and not the causes. This in turn has 
given rise to a serious problem of drug dependency. 633 

1262. The sense of security that comes from living in a supportive and safe environment had 
already been eroded over the years by constant attacks and military confrontation, but was 
further undermined by the direct experience and/or witnessing of violence against relatives. The 
widespread destruction, the displacement, the inability to find a safe place anywhere, together 
with the direct exposure to life-threatening events will continue to have a serious impact on the 
population. The general state of the inhabitants of the Gaza Strip was described as a form of 
alienation. 634 

1263. Many of the mental health problems are the result of years of conflict, living in poverty, 
scarcity and instability in the area and will probably continue until the root causes are eliminated. 
People, in particular children, live or grow up in a society under occupation, with constant 
episodes of violence and no sense of security or normalcy. 

1264. The situation is compounded by the relative scarcity of qualified professionals and 
inadequate facilities. The Gaza Community Mental Health Programme has only about 40 
members of staff specialized in mental health, including physicians, social researchers, nurses, as 
well as psychologists. According to Dr. al-Sarraj, this number is not sufficient to cover even the 
needs of Gaza City district, whereas for the entire population of the Gaza Strip a team of 

300 specialists would be necessary. 635 

1265. Over the past two decades, the Gaza Community Mental Health Programme and others 
have worked to build resilience in people. They told the Mission that the recent military 
operations had wiped out their achievements. People suffering severe loss also detach themselves 
from reality, in a phenomenon called "numbness". According to Dr. Tawahina, the general 
feeling among most people in Gaza is that they have been completely abandoned by the 
international community. This feeling of abandonment in turn increases their frustration, creating 
additional pain, and leads eventually to more violence and extremism. The Gaza Community 
Mental Health Programme studied children's attitudes towards violence and found that, as a 
result of this situation, and especially when children had lost their parents and with them the 



633 Dr. Ahmad Abu Tawahina, Gaza Community Mental Health Programme, public hearing, Gaza, 29 June 2009, 
available at: http://www.un.org/webcast/unhrc/archive. asp?go=090629 . 

634 Ibid. 



635 



Dr. Iyad al-Sarraj, public hearing, Gaza, 29 June 2009, available at: http://www.un.org/webcast/unhrc/ 



archive, asp? go=090629 . 



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associated protection and sense of security, they tended to look at "martyrs" and members of 
armed groups as adult role models instead 



636 



1266. A study conducted by the United Nations Development Fund for Women (UNIFEM) 
revealed that men also showed more symptoms of psychological trauma after the December- 
January military operations. Based on specialists' reports, the Mission is of the view that this 
could in part be due to the additional stress that men face as heads of families in a male- 
dominated society when they are unable to fulfil their role as main breadwinners or to provide 
protection and security to their children, wives and other family members. 637 

1267. Based on previous experiences with emergencies, WHO expects the number of people 
with serious mental health disorders to increase by an average of 1 per cent above the baseline 
and with mild to moderate disorders by 5 to 10 per cent "provided that a protective environment 
is restored". 638 

G. Education 

1268. The Mission received information about the state of the education sector in the Gaza Strip. 
UNRWA operates one of the largest school systems in the Middle East and has been the main 
provider of basic education to Palestine refugees for nearly five decades. The Mission was 
greatly impressed by its activities and achievements. UNRWA runs 221 schools, while the 
Government runs 383. UNRWA schools are also a vehicle for health-monitoring and 
food/nutritional programmes. That Palestinians have high levels of education is largely the result 
of that work. By the same token, the Mission was shocked to learn how badly educational 
facilities and activities in the Gaza Strip have been affected as a result of the blockade and the 
recent military operations. 

1269. Information and testimonies received by the Mission showed that the education system 
was affected in several ways by the restrictions imposed by the blockade. The lack of 
construction materials had halted all new construction. Repairs to the educational infrastructure 
also had to be postponed. Around 88 per cent of UNRWA schools and 82 per cent of 
Government schools operated on a shift system to cope with the demand. The lack of educational 
material and equipment hampered the ability to maintain teaching standards. This situation was 
causing a decline in attendance and performance at governmental schools. 639 

1270. The ban on the movement of people through the crossings affected not only university 
students planning to study or already undertaking studies abroad, but also the possibilities for 
academics and scholars to travel abroad on academic exchanges. Between July and September 
2008 only 70 students managed to leave the Gaza Strip via Erez but hundreds saw their 
aspirations to study abroad truncated. 



636 Meeting of the Mission with the Gaza Community Mental Health Programme, 4 June 2009. 

637 United Nations, Voicing the Needs of Women and Men in Gaza, 2009, p. 32. 

638 i 



' WHO report, p. 13. 

' UNRWA and the A; 
and education fact sheet". 



639 UNRWA and the Association of International Development Agencies (AIDA), "The Gaza blockade: Children 



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1271. The military operations destroyed or damaged at least 280 schools and kindergartens. Six 
of them were located in northern Gaza, affecting some 9,000 pupils, who had to be relocated. 
According to the Ministry of Education and Higher Education, 164 pupils and 12 teachers were 
killed during the military operations. Another 454 pupils and five teachers were injured. At 
UNRWA schools, 86 children and three teachers were killed, and 402 children and 14 teachers 
injured. During the military operations, 44 UNRWA schools were used as emergency shelters to 
cope with the more than 50,000 displaced individuals. 

1272. Schools were generally closed for the duration of the hostilities, disrupting the study 
programme. After the ceasefire it was unclear how many students and teachers returned to 
schools but that number was reported to reach up to 90 per cent in UNRWA schools. 640 Children 
and teachers reported situations of anxiety and trauma as a result of the extreme violence to 
which they had been exposed and the loss of relatives or friends. The Mission heard that the start 
of the military operations with air strikes at a time when schools were functioning exposed 
children to a heightened risk and filled them with fear and panic. Schools and the roads towards 
them occasionally remained unsafe because of the presence of explosive remnants of war. Two 
Palestinian children were killed by those explosives in Zeytoun shortly after the ceasefire was 
declared. The Mission heard reports that some children were injured by white phosphorus on 
their way to school. 

1273. The Mission saw the destruction caused to the American School. It also saw the 
destruction caused at the Islamic University and in other university buildings that were destroyed 
or damaged. These were civilian, educational buildings and the Mission did not find any 
information about their use as a military facility or their contribution to a military effort that 
might have made them a legitimate target in the eyes of the Israeli armed forces. 

1274. The Mission was also informed of indoctrination programmes allegedly introduced by the 
Gaza authorities, and of a process of ideological and political polarization. Such programmes 
have a high potential for imposing models of education at odds with human rights values and 
with a culture of peace and tolerance. In this regard, the Mission believes that efforts to 
incorporate human rights in the curricula should be encouraged by the relevant authorities. 

H. Impact on women and children 

1275. The attention of the Mission was drawn to the particular manner in which children and 
women had been affected by the blockade policies and the military operations. In its report, 
WHO took figures from PCHR: out of 1,417 persons killed, 313 were children and 116 women. 
It also takes figures from the Israeli armed forces that showed that 1,166 were killed, of whom 
49 were women and 89 were under 16. 641 Among the 5,380 injured, 1,872 were children and 
800 women. 642 The Mission directly investigated many incidents in which women and children 
had been killed as a result of deliberate or indiscriminate attacks by the Israeli armed forces. 643 



640 The Humanitarian Monitor, No. 33. 

641 WHO report, p. 10. 

642 The Palestinian National Early Recovery and Reconstruction Plan. . . . 

643 See chapters VII, X, XI and XIV. 



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WHO also reported that among the many injured people who crossed the Rafah border and were 
accepted for medical treatment in Egypt during the second week of the military operations there 
were 10 children showing a single bullet injury to the head and one with two. 

1276. The Mission held interviews with a number of women and representatives of women's 
organizations and heard the testimony of Mariam Zaqout of the Culture and Free Thought 
Association. 644 It heard that the blockade and the military operations had aggravated poverty, 
which particularly affected women, who must find food and other essentials for their families. 
Women were often the sole breadwinners (for instance, if male family members had died or been 
injured as a result of conflict or violence, or were imprisoned) but jobs were hard to come by. 
Over 300 women had been widowed as a result of the military operations and had become 
dependent on food and income assistance. In addition, women bore a greater social burden, 
having to deal with daily life made harsher by the crisis and, at the same time, provide security 
and care for injured family members and children, their own and others who have lost their 
parents. These responsibilities sometimes compelled them to conceal their own sufferings, so 
their concerns remained unaddressed. 

1277. In the same interviews, the participants stated that women were particularly affected by 
the destruction of homes and the invasion of privacy. Having to live in tents without privacy or 
appropriate sanitary facilities added to their hardship. Moreover, the military operations had 
strained relations among family members. Psychological pressures on men and women, together 
with financial difficulties, led to family disputes, family violence and divorce. There were 
frequent disputes between widows and their in-laws regarding child custody and inheritance. 
Widows were also under increased pressure to get married again to be able to sustain themselves. 
Consequently, there was an increase in women seeking legal aid, as legal problems tended to 
become aggravated because of shortcomings in the law and fewer safeguards for the rights of 

645 

women. 

1278. The particular manner in which the conflict affected women was dramatically illustrated 
for the Mission by the testimony of a woman of the al-Samouni family (see chap. XI). She had 
three children and was pregnant when her family and her house came under attack. She 
commented on how the children were scared and crying. She was distressed when recounting 
how her 10-month-old baby, whom she was carrying in her arms, was hungry but she did not 
have anything to give him to eat, and how she tried to feed him by chewing on a piece of bread, 
the only food available, and giving it to him. She also managed to get half a cup of water from an 
ill functioning tap. There were other babies and older children. She and her sister exposed 
themselves to danger by going out to search for food for them. Her husband, mother and sister 
were killed but she managed to survive. Her other son was wounded in the back, and she carried 
both out of the house. 646 

1279. Many women felt helpless and embarrassed at not being able to protect and care for their 
children. Others felt frustrated, invaded in their personal space and powerless when their houses 



644 Public hearings, Gaza, 29 June 2009. 

645 Meeting with women's organizations, 3 June 2009. 

646 Mission interview with Mrs. Massouda Sobhia al-Samouni, Gaza, 3 June 2009. 



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and possessions were destroyed or vandalized. Those feelings contributed to their psychological 
suffering 



647 



1280. A UNFPA study conducted immediately after the December- January military operations 
reported a 40 per cent increase in miscarriages admitted to maternity wards, a 50 per cent 
increase in neonatal deaths, a rise in obstetric complications and anecdotal evidence of deaths or 
health complications because pregnant women were unable to reach hospital to deliver their 
babies. 648 Women interviewed in the context of another UNFPA study expressed extreme fears 
for themselves and their loved ones. Associated symptoms included anxiety, panic attacks, 
feelings of insecurity, disturbed sleep and eating patterns, depression, sadness and fear of sudden 
death. 649 

1281. Adults and children showed signs of profound depression, while children suffered from 
insomnia and bed-wetting. Numerous testimonies received by the Mission highlight the presence 
of children in situations where houses were searched or occupied with force by Israeli soldiers, 
and when killings occurred. 650 The Mission heard the testimony of a mother whose children, 
aged 3 to 16, had witnessed the killing of their father in their own house. With Israeli soldiers 
forcefully questioning their mother and uncle and vandalizing their house, the children asked 
their mother whether they would be killed as well. Their mother felt the only comfort she could 
give them was to tell them to say the Shehada, the prayer recited in the face of death. 651 Children 
were present in improvised shelters on United Nations premises, enduring the trauma of 
displacement as well as feelings of fear from the military attacks and of deep insecurity from 
having been attacked in their own homes or in a shelter that was expected to be safe. During its 
visits, the Mission saw many children living with their families in the ruins of their homes and in 
makeshift accommodation. The trauma for children having witnessed violence and often the 
killing of their own family members will no doubt be long-lasting. Mrs. Massouda Sobhia 
al-Samouni told the Mission that her son was still traumatized. He kept placing coins in his 
mouth and when she told him it was dangerous and he might die if he did so, he replied that he 
wanted to join his father. 

1282. Some 30 per cent of children screened at UNRWA schools had mental health problems, 
while some 10 per cent of children had lost relatives or friends or lost their homes and 



647 Culture and Free Thought Association and UNFPA, "Gaza crisis: Psychosocial consequences for women, youth 
and men", executive summary, 27 April 2009, p. 3. 

648 UNFPA, "Gaza crisis: impact on reproductive health, especially maternal and newborn health and obstetric care", 
draft report, 10 February 2009. 

649 Culture and Free Thought Association, "Gaza crisis: Psycho-social consequences for women", executive 
summary, 8 February 2009. 

650 See, for example, chapters X and XI. See also the testimony of Mrs. Abir Hajji at the public hearing, Gaza, 6 
June 2009, recounting the killing of her husband in the presence of her children. 

651 Mission interview with Mrs. Abir Hajji, Gaza, 3 June 2009. Mrs. Hajji also participated in the public hearings, 
Gaza, 28-29 June 2009. 



652 



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possessions. WHO estimated that some 30,000 children would need continued psychological 
support and warned of the potential for many to grow up with aggressive attitudes and hatred 

I. Persons with disabilities 

1283. Information provided to the Mission showed that many of those who were injured during 
the Israeli military operations sustained permanent disabilities owing to the severity of their 
injuries and/or the lack of adequate and timely medical attention and rehabilitation. Gaza 
hospitals reportedly had to discharge patients too early so as to handle incoming emergencies. 
Other cases resulted in amputations or disfigurement. About 30 per cent of patients were 
expected to have long-term disabilities. 653 

1284. WHO reported that by mid- April 2009 the number of people with different types of 
permanent disability (e.g. brain injuries, amputations, spinal injuries, hearing deficiencies, 
mental health problems) as a result of the military operations was not yet known. It reported 
speculations that there might be some 1000 amputees; but information provided by the WHO 
office in Gaza and based on estimates by Handicap International indicated that around 

200 persons underwent amputations. 654 

1285. 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 owing to complications and inadequate follow-up and 
physical rehabilitation. 655 

1286. The Mission also heard moving accounts of families with disabled relatives whose 
disability had slowed their evacuation from a dangerous area or who lived with a constant fear 
that, in an emergency, their families would have to leave them behind because it would be too 
difficult to evacuate them. 

1287. One testimony concerned a person whose electric wheelchair was lost after his house was 
targeted and destroyed. Since the residents were given very short notice of the impending attack, 
the wheelchair could not be salvaged and the person had to be taken to safety on a plastic chair 
carried by four people. 

1288. The Mission also heard a testimony concerning a pregnant woman who was instructed by 
an Israeli soldier to evacuate her home with her children, but to leave behind a mentally disabled 
child, which she refused to do. 

1289. Even in the relative safely of shelters, people with disabilities continued to be exposed to 
additional hardship, as these shelters were not equipped for their special needs. The Mission 
heard of the case of a person with a hearing disability who was sheltering in an UNRWA school, 



652 WHO report, p. 13. 

653 The Humanitarian Monitor, No. 33. 



654 WHO report, p. 1 1 ; Gaza Situation Report Feb - May 2009, WHO Gaza, provided to the Mission. 

655 Gaza Situation report. 



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but was unable to communicate in sign language or understand what was happening and 
experienced sheer fear. 

1290. Frequent disruptions in the power supply had a severe impact on the medical equipment 
needed by many people with disabilities. People using wheelchairs had to face additional hurdles 
when streets started piling up with the rubble from destroyed buildings and infrastructure. 

1291. In addition, programmes for people with disabilities had to be closed down during the 
military operations and rehabilitation services stopped (for instance, organizations providing 
assistance were unable to access stocks of wheelchairs and other aids). Many social, educational, 
medical and psychological programmes have not yet fully resumed. 656 

J. Impact on humanitarian assistance provided by the United Nations 

1292. The tightening of the blockade during the two months before the military operations 
entailed additional restrictions also for United Nations programmes and activities, in particular 
those of UNRWA, WFP and others that provide food and other forms of support. The Mission 
was informed that, as a result of the blockade and the Israeli limitations on the delivery of 
humanitarian assistance, the capacity of UNRWA to mitigate the effects of the military 
operations on the civilian population was reduced. 657 As stated above, just days before the Israeli 
military operations started, UNRWA had to suspend its food assistance programmes and scale 
down other programmes. 

1293. But the impact of the blockade also extended to several humanitarian projects that had 
been planned or were in progress and had to be stopped and postponed. Most of them were in 
health, sanitation, water and education. 

1294. During the military operations, UNRWA workers and trucks were also hit, resulting in 
deaths and injuries. The Board of Inquiry established by the United Nations Secretary-General 
investigated a number of incidents in which United Nations facilities were targeted and issued a 
report determining responsibilities. 658 The Mission is of the view that the factual findings made 
by the Board of Inquiry entail legal liability for those responsible (see below). 

1295. The Mission learned that seven UNRWA staff members (none of them on duty), five job 
creation programme contractors (one on duty) and three contractors were killed; 21 other 
contractors were injured. In all, 57 UNRWA buildings were damaged by shelling or airstrikes, 
including 36 schools (six serving as emergency shelters), seven health centres, three sanitation 
offices, two warehouses and five other buildings. 

1296. Thirty-five UNRWA vehicles, including three armoured vehicles, were damaged. From its 
remaining 321 vehicles, only 286 are operational and 7 are damaged beyond repair. 



656 Meeting of the Mission with the Society for Disabled in the Gaza Strip, 30 June 2009. 

657 Meeting of the Mission with UNRWA, 1 June 2009. 

658 See Summary of the Report of the United Nations Headquarters Board of Inquiry. 



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1297. UNRWA informed the Mission that between 27 December and 19 January, 536 UNRWA 
trucks entered the Gaza Strip through the Kerem Shalom border crossing. By 21 January, 

394 trucks had entered through Kami and 2089 through Kerem Shalom (including private, 
humanitarian and UNRWA trucks). UNRWA considered these amounts to be insufficient to 
meet the humanitarian needs of the population of the Gaza Strip. 659 

1298. The Israeli Government stated that "from the commencement of the Gaza Operation and 
for its duration" a total of 1,51 1 trucks with supplies from Israel as well as diesel, cooking gas 
and other fuel were allowed into the Gaza Strip. It would appear that some 60 per cent of these 
supplies were foodstuffs. The Israeli Government states that (presumably during the same 
period) it also coordinated the passage of 706 trucks carrying donations from international 
organizations and various countries. 660 Information from UNRWA suggests that these quantities 
were irrelevant given the situation prevailing during the military operation and the local needs. 
For instance, although fuel for the power plant was let in, it was inadequate, forcing the power 
plant to shut down and causing 16-hour power cuts in some areas. Israel also reported allowing 
in 2,277,000 litres of diesel during the military operations, but according to UNRWA records 
only 199,400 litres were allowed in, while OCHA records suggest only 92,000 litres were 
allowed in, compared to 6,628,400 litres in January 2007. 661 

1299. The Israeli Government also provided information about medical supplies that were 
brought into the Gaza Strip, but the figures are imprecise or incomplete as it was unclear what 
unit of measure was being used. In addition, many of the agencies listed were not actually 
bringing in medical supplies. For instance, its report lists that WFP brought in "3, 611" medical 
supplies, but information made available to the Mission indicated that WFP was bringing in only 
flour and hygiene kits. 

K. Legal analysis 

1300. Obligations under international humanitarian law are relevant for the assessment of the 
facts described above. As mentioned earlier, the Fourth Geneva Convention as well as provisions 
of Additional Protocol I reflecting customary international law apply to the actions of Israel in 
the Occupied Palestinian Territory before and during the military operations. The protections 
owed under international humanitarian law to the civilian population of the Gaza Strip by all 
parties to the conflict include the duty to allow the free passage of humanitarian medical 
supplies, as well as consignments of essential foodstuffs and clothing for children, pregnant 
women and mothers at the earliest opportunity (article 23 of the Fourth Geneva Convention). 
Article 70 of Additional Protocol I provides that parties to a conflict are obliged to allow the 
passage of articles that are essential for the civilian population, at the earliest opportunity and 
without delay. 



659 By 1 February UNRWA was providing food assistance to 900,000 registered Palestine refugees, 504,000 of them 
children, in the Gaza Strip. There are 1,048,125 refugees in the Gaza Strip (74 per cent of the population), see 
UNRWA, "Fact sheet: Consequences of the conflict in the Gaza Strip 27 December 2008- 18 January 2009". 

660 " jjjg p era tion in Gaza. . . ", para. 27 1 . 

661 OCHA also reported that in January 2009 no imports of petrol to Gaza were registered, compared to 
1,522,250 litres in January 2007; 915,310 kilograms of cooking gas was imported in January 2009, compared to 
5,238,030 in January 2007; and 3,760,400 litres of industrial diesel, compared to 8,370,290 in January 2007. 



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1301. The relevant provisions of the Fourth Geneva Convention relating to the duties of an 
occupying Power should also be taken into consideration, in particular the obligations contained 
in articles 50 (duty to facilitate the working of care and education institutions), 55 (duty to ensure 
food and medical supplies to the population), 56 (duty to ensure and maintain medical and 
hospital establishments and services), 59 (duty to agree on relief schemes if the occupied 
territory is not well supplied) and 60 (duty to continue performing obligations even if third 
parties provide relief consignments). Several provisions of Additional Protocol I reflecting 
customary international law are also relevant here, including articles 51 and 52, which prohibit 
attacks on civilians and on civilian objects, and article 54, which prohibits the destruction of 
objects indispensable to the survival of the civilian population. 

1302. Access to adequate food, shelter and clothing, as part of an adequate standard of living, 
are human rights recognized in article 1 1 of the International Covenant on Economic, Social and 
Cultural Rights. The same instrument recognizes the rights to education and to the highest 
attainable standard of physical and mental health (art. 12). The content of these rights and the 
corresponding State duties has been clarified by the United Nations Committee on Economic, 
Social and Cultural Rights. The Convention on the Rights of the Child protects the child's right 
to life, survival and development (art. 6) and to be protected from all forms of mental or physical 
violence (art. 19), to the highest standard of health (art. 24), to an adequate standard of living 
(art. 27) and to education (arts. 28 and 29). Although these instruments protect women and men, 
girls and boys alike, the Convention on the Elimination of All Forms of Discrimination against 
Women adds more specification and scope to those obligations with regard to women. All these 
human rights obligations are applicable to Israel with respect to its actions in the Gaza Strip 
since they apply also in situations of armed conflict. 

1303. Some rights contained in the International Covenant on Economic, Social and Cultural 
Rights are subject to progressive realization. This means that they can be achieved only over 
time. States have an obligation to move as expeditiously and effectively as possible towards that 
goal. Deliberate retrogressive measures are permitted only under stringent conditions. 662 

1304. The Mission recalls in this regard its analysis of the Israeli objectives and strategies during 
the military operations in chapter XVI. There the Mission referred to statements made by Deputy 
Prime Minister Eli Yishai on 6 January 2009: "It [should be] possible to destroy Gaza, so they 
will understand not to mess with us". He added that "it is a great opportunity to demolish 
thousands of houses of all the terrorists, so they will think twice before they launch rockets". The 
Mission also referred to the so-called Dahiya doctrine, which requires widespread destruction as 
a means of deterrence and seems to have been put into practice. These objectives and strategies 
should be kept in mind with regard to the following analysis. 

1305. The Mission considers that the closure of or the restrictions imposed on border crossings 
by Israel in the immediate period before the military operations subjected the local population to 
extreme hardship and deprivations that are inconsistent with their protected status. The 
restrictions on the entry of foodstuffs, medical supplies, agricultural and industrial input, 
including industrial fuel, together with the restrictions on the use of land near the border and on 



1 General comment No. 3 (1990), para 9. 



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fishing in the sea have resulted in widespread poverty, increased dependence on food and other 
assistance, increased unemployment and economic paralysis. The Mission can conclude only that 
Israel has and continues to violate its obligations as an occupying Power under the Fourth 
Geneva Convention. 

1306. The Mission has given consideration to the argument put forward by the Israeli 
Government that the above policies and restrictions are being imposed as a form of sanction. 
However, such blanket sanctions are not permitted under international law. The Committee on 
Economic, Social and Cultural Rights has addressed economic sanctions and their effects on the 
enjoyment of economic and social rights, and held: 

[. . .] whatever the circumstances, such sanctions should always take full account of the 
provisions of the International Covenant on Economic, Social and Cultural Rights [and] 

[. . .] it is essential to distinguish between the basic objective of applying political and 
economic pressure upon the governing elite of the country to persuade them to conform to 
international law, and the collateral infliction of suffering upon the most vulnerable 
groups within the targeted country. 663 

1307. In respect to the right to water, the Committee stated: "States parties should refrain at all 
times from imposing embargoes or similar measures that prevent the supply of water, as well as 
goods and services essential for securing the right to water." Similar considerations apply to food 
and health services and goods. 664 

1308. The Mission also notes that reprisals and collective penalties are prohibited under 
international humanitarian law. 

1309. The Mission has considered the question of military security. As serious as the situation 
that arises when rockets and mortars are fired on or near border crossings may be, the Mission 
considers that it does not justify a policy of collective punishment of the civilian population of 
the Gaza Strip. The Mission is aware of the Government of Israel's declaration of the Gaza Strip 
as a "hostile territory". Again, for the Mission, such a declaration does not relieve Israel of its 
obligations towards the civilian population of the Gaza Strip under international humanitarian 
law. 

1310. Moreover, the Mission takes note that following the decision of the Supreme Court of 
Israel in what is known as the Fuel and electricity case, 665 Israel reconsidered its obligations 
relating to the amounts and types of humanitarian supplies that it allowed into the Gaza Strip to 
meet "vital humanitarian needs". Whatever that somewhat vague standard may be, the Mission 
stresses that Israel is bound to ensure supplies to meet the humanitarian needs of the population, 
to the fullest extent possible. 



663 General comment No. 8 (1997), paras. 4 and 16. 

664 General comments No. 15 (2002) and No. 12 (1999), para. 8. 

665 Gaber et al. v. The Prime Minister, case No. 9132/07. 



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1311. In sum, the Mission restates its view that Israel has not fulfilled its duties as an occupying 
Power in relation to the Gaza Strip. 

1312. Again, reference is made to the blockade and Israel's obligation to respect, protect, 
facilitate or provide, to the extent possible, for the enjoyment of the whole range of economic, 
social and cultural rights in the Gaza Strip. At the very least, Israel is "under an obligation not to 
raise any obstacle to the exercise of such rights in those fields where competence has been 
transferred to Palestinian authorities". 666 Israel's actions have led to a severe deterioration and 
regression in the levels of realization of those rights. Consequently, the Mission finds that Israel 
has failed to comply with those obligations. 

1313. The Mission has also given consideration to the extent and type of military operations 
conducted by Israel in the Gaza Strip between 27 December 2008 and 18 January 2009. As 
mentioned earlier, provisions of the Fourth Geneva Convention and of Additional Protocol I that 
reflect international customary law apply to those operations. Their obligations include that 
under the Fourth Geneva Convention to give particular protection and respect to the infirm and 
expectant mothers (art. 16), to respect and protect civilian hospitals and medical personnel 
(arts. 18 and 20), and to allow the free passage of all consignments of medical and hospital 
objects, food and clothing subject to certain conditions (art. 23). The Mission will address here 
only respect for the provisions contained in article 23, which it considers to be part of customary 
international law. With regard to Additional Protocol I, the Mission will address here Israel's 
compliance with article 54. 

1314. The Government of Israel has provided information about the actions it took to ensure the 
supply of humanitarian assistance to the Gaza Strip and to ensure that medical relief and rescue 
as well as essential facilities would function during the hostilities. These actions allegedly 
comprised: the continuous supply of humanitarian aid through the crossings; coordination of 
evacuation within the Gaza Strip and outside; a unilateral suspension of military operations each 
day to enable the resupply of assistance for the population and actions to ensure the functioning 
of essential infrastructure in the Gaza Strip. To this end, the Government of Israel reported that it 
established a number of coordinating and liaison bodies with Palestinian authorities and 
organizations, the United Nations agencies on the ground and humanitarian agencies, such as 
ICRC. The Government also reported that a number of trucks carrying humanitarian goods from 
Israel and from other countries, including from international organizations, were given passage. 

1315. In response, the Mission draws attention to the fact that no consideration was given to the 
situation that prevailed in the Gaza Strip before the military operations. In particular, the Mission 
notes that the amounts and types of food, medical and hospital items and clothing were wholly 
insufficient to meet the humanitarian needs of the population. Given that since the end of the 
operations the number of truckloads allowed through the crossings has again fallen, the 
humanitarian supplies are even less sufficient. 

1316. At the height of the military operations, several NGOs appealed to the Government of 
Israel to ensure a sufficient supply of electricity and fuel to the Gaza Strip to allow for the 



666 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 
July 2004, I.C.J. Reports 2004, para. 112. 



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functioning of vital services. 667 At the same time, two petitions were filed with the Supreme 
Court of Israel on 7 and 9 of January, respectively, to order the Government to ensure that the 
Israeli armed forces did not attack ambulances and medical personnel and that sufficient 
electricity and fuel were supplied to enable hospitals, water and sanitation systems to function 
during the conflict. On 19 January, as military operations ended, the Supreme Court ruled 
denying both petitions. 668 

1317. The Government of Israel seems to see the hardship and suffering of Palestinians as 
an inevitable consequence of a situation of war. The Government's statement that "civilian 
populations inevitably and tragically suffer during a time of armed combat, particularly where 
the combat operations take place in densely populated urban areas" 669 may be correct, but this 
does not relieve Israel from its obligations under international humanitarian law. 

1318. From the facts it ascertained and the foregoing analysis, the Mission finds that Israel has 
violated its obligation to allow the free passage of all consignments of medical and hospital 
stores and objects, food and clothing (article 23 of the Fourth Geneva Convention). 

1319. Article 54 of Additional Protocol I contains the prohibition: 

to attack, destroy, remove or render useless objects indispensable to the survival of the 
civilian population, such as foodstuffs, agricultural areas. . ., drinking water installations 
and supplies and irrigation works for the specific purpose of denying them for their 
sustenance value to the civilian population or to the adverse party, whatever the motive 

The Mission regards this rule as reflective of international customary law. In this context, 
Israel's obligations to respect, protect and facilitate or provide for the realization of economic, 
social and cultural rights, and its obligations under the Convention on the Rights of the Child and 
the Convention on the Elimination of All Forms of Discrimination against Women are also 
relevant, and have been undermined by the blockade and restrictions on the Gaza Strip, as well 
as the actions taken during the military operations. 

1320. With regard to article 54 (2) of Additional Protocol I, the Mission recalls its analysis 
included in chapter XIII on the destruction of buildings, food production and industry. From the 
facts ascertained and the circumstances described in the present chapter and in chapters XIII and 
XVI, the Mission concludes that in the destruction or damaging of greenhouses, agricultural 
land, water wells for irrigation and irrigation networks there was the specific purpose of denying 
their use for the sustenance of the civilian population of the Gaza Strip. Furthermore, this 



667 An excerpt from the Hebrew appeal is available in an English press release at: http://www.gisha.org/UserFiles/ 
File/Press%20Materials/HR%20groups%20-%20resumption%20otyo20gaza%20fuel%20supplies%201-l-09%20- 
%20online%20version.pdf 

668 Physicians for Human Rights et. al. v. The Prime Minister et. al., case No. 201/09, and Gisha Legal Centre for 
Freedom of Movement et al. v. Minister of Defense, case No. 248/09, Judgement of 19 January 2009, para. 26, 
available at http://elvonl.court.gov.il/files eng/09/010/002/n07/09002010.n07.pdf 

669 " jjjg p era tion in Gaza. . . ", para. 277. 



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appears to be done as part of a policy of collective punishment of the civilian population as 
elaborated below. 

1321. With respect to the right to water, the Committee on Economic, Social and Cultural Rights 
stated: 

The obligation to respect [the right to water] requires that States parties refrain from 
[. . .] limiting access to, or destroying, water services and infrastructure as a punitive 
measure, for example, during armed conflicts in violation of international humanitarian 
law. 

1322. This language is similar to that of a resolution adopted by consensus at the 

26 th International Conference of the Red Cross and Red Crescent that calls upon parties to a 
conflict to "take all feasible measures to avoid in their military operations, all acts liable to 
destroy or damage water sources." 671 

1323. Similar considerations apply to the right to adequate housing. 672 The widespread 
destruction of residential housing, water wells and pipe networks cannot be seen as an inevitable 
or necessary incidence of military hostilities. Israel had a duty to distinguish between civilian 
and military objects and not to direct any attacks at civilians or civilian objects. The Mission has 
not received any information suggesting that all the houses destroyed served as hideouts for 
Hamas fighters or were booby-trapped and does not accept that this was the case. The patterns of 
destruction described in the present chapter and in others reveal that many houses were fired at 
or demolished after their occupants had been ordered to leave them. There was then no clear 
necessity for Israeli soldiers to occupy such properties or to destroy them. They were in effective 
control of the area. In other cases, houses were demolished with bulldozers during the last few 
days of the military operations when, again, Israeli forces were in total control of the areas in 
which the houses were located. Military necessity and the need to prevent rockets being fired 
from the houses into Israel do not seem to the Mission plausible reasons for this widespread 
destruction. These considerations apply equally to the destruction of agricultural land and 
greenhouses, which are so important for local food security. 

1324. From the facts available to it and by virtue of the foregoing considerations, the Mission 
believes that the destruction of private residential houses, water wells, water tanks, agricultural 
land and greenhouses violates Israel's duties to respect the right of the people in the Gaza Strip 
to an adequate standard of living (including food, housing and water). 

1325. The Mission is aware of the statement of the Committee on the Rights of the Child that 
many of the fundamental rights of the child "have been blatantly violated during this crisis". 673 
On the basis of this finding and on the facts as described above, the Mission also considers that 



670 General comment No. 15 (2002), para. 21. 

Customary International Humanitarian Law ... , p. 150. 

672 Submission to the Mission made by COHRE. 

673 Committee on the Rights of the Child, "Effects of the Gaza conflict on children 'devastating'", statement, 12 
January 2009. 



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Israel has violated its obligations under the Convention on the Rights of the Child during its 
military operations in the Gaza Strip and in particular of article 24 (1), stipulating that "States 
Parties recognize the right of the child to the enjoyment of the highest attainable standard of 
health and to facilities for the treatment of illness and rehabilitation of health. States Parties 
shall strive to ensure that no child is deprived of his or her right of access to such health-care 
services"; article 38 (1), stipulating that "States Parties undertake to respect and to ensure respect 
for rules of international humanitarian law applicable to them in armed conflicts which are 
relevant to the child"; and article 38 (4), stipulating that "States Parties shall take all feasible 
measures to ensure protection and care of children who are affected by an armed conflict". 

1326. The Mission also notes that Israel is in continuing violation of article 39 of the 
Convention in that, by actively preventing reconstruction efforts, it does not fulfil its obligations 
to "take all appropriate measures to promote physical and psychological recovery and social 
reintegration of a child victim of: [. . .] armed conflicts. Such recovery and reintegration shall 
take place in an environment which fosters the health, self-respect and dignity of the child". 

1327. The Mission is also aware of the statement made by the Committee on the Elimination of 
All Forms of Discrimination against Women that "the human rights of women and children in 
Gaza, in particular to peace and security, free movement, livelihood and health, have been 
seriously violated during this military engagement " 674 It concurs with this statement. The 
Mission also notes that the Convention on the Rights of Persons with Disabilities, article 11, 
requires States parties to take "all necessary measures to ensure the protection and safely of 
persons with disabilities in situations of risk, including situations of armed conflict". Israel has 
signed, but not yet ratified, this Convention and is thus under an obligation not to defeat its 
object and purpose. 

1328. The Mission also considered whether the Gaza population was subject to collective 
punishment or penalty. According to article 33 of the Fourth Geneva Convention, "collective 
penalties and likewise all measures of intimidation or of terrorism are prohibited". Article 75 

(2) (d) of Additional Protocol I includes collective punishment as an act that is "prohibited at any 
time and in any place whatsoever". Reprisals against protected persons are also prohibited under 
article 33. These prohibitions are part of customary international law. 675 

1329. The Mission notes that the scope of collective penalties goes beyond physical or criminal 
sanctions to encompass also "sanctions and harassment of any sort, administrative, by police 
action or otherwise". 676 The cumulative effect of the blockade policies, with the consequent 
hardship and deprivation among the whole population, and of the military operations coupled 
with statements by Israel made to the effect that the whole of the Gaza Strip was a "hostile 
territory" strongly suggest that there was an intent to subject the Gaza population to conditions 
such that they would be induced into withdrawing their support from Hamas. This was 
apparently confirmed by the then Minister of Foreign Affairs of Israel commenting on the 



674 United Nations, UN committee says women's rights were seriously violated during Gaza conflict, press release, 6 
February 2009. 

See Customary International Humanitarian Law ... , p. 374. 

676 ICRC Commentary to Additional Protocol I, p. 3055. 



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decision by the Supreme Court to uphold the fuel cuts: "The Palestinians need to understand that 
business is not usual, I mean there is no equation in which Israeli children will be under attacks 
by Kassam rockets on a daily basis and life in the Gaza Strip can be as usual". 677 

1330. The above statements should also be seen in the light of what the Mission has identified as 
the objectives and strategies of Israel before and during the operations (see chap. XVI). Israel, 
rather than fighting the Palestinian armed groups operating in Gaza in a targeted way, has chosen 
to punish the whole Gaza Strip and the population in it with economic, political and military 
sanctions. This has been seen and felt by many people with whom the Mission spoke as a form 
of collective punishment inflicted on the Palestinians because of their political choices. 

1331. The facts ascertained by the Mission, the conditions resulting from the deliberate actions 
of the Israeli armed forces and the declared policies of the Israeli Government - as they were 
presented by its authorized 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. The Mission, therefore, finds a violation of the provisions of 
article 33 of the Fourth Geneva Convention. 

1332. The Mission has also considered the question of whether the crime of persecution as a 
form of crime against humanity had been committed against the civilian population of the Gaza 
Strip. To establish that a crime against humanity was committed it would have to be established 
that there was a widespread or systematic attack on a civilian population that blatantly 
discriminated and infringed a fundamental right recognized under international customary law or 
treaty, and was carried out deliberately with the intention so to discriminate. 678 

The crime of persecution encompasses a variety of acts, including, inter alia, those 
of physical, economic or judicial nature, that violate an individual's right to the equal 
enjoyment of his basic rights. 679 

1333. In Prosecutor v . Kupreskic judgement, the Trial Chamber of the International Criminal 
Tribunal for the former Yugoslavia describes the types of acts that would constitute the crime of 
persecution in the following terms: 

(c) Persecution can also involve a variety of other discriminatory acts, involving 
attacks on political, social, and economic rights. [. . .] 



677 Global Security, "Israel's Supreme Court upholds fuel cuts to Gaza", 30 November 2007, available at: 
http://www.globalsecuritv.Org/militarv/library/news/2007/l l/mil-07 1 130-voa02.htm . The issue is also addressed in 
the submission to the Mission by Diakonia. 

678 Prosecutor v. Kunarac et al. , International Criminal Tribunal for the former Yugoslavia, Trial Chamber, case 
No. IT-96-23-T and No. IT-96-23/1-T, Judgement of 22 February 2001, para. 431. 

679 Prosecutor v. Tadic, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, case 
No. IT-94-1-T, Judgement of 7 May 1997, para. 710. 



A/HRC/12/48 
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(d) Persecution is commonly used to describe a series of acts rather than a single 
act. Acts of persecution will usually form part of a policy or at least of a patterned 
practice, and must be regarded in their context. [. . . ] 

(e) [. . . ] discriminatory acts charged as persecution must not be considered in 
isolation. Some of the acts mentioned above may not, in and of themselves, be so serious 
as to constitute a crime against humanity. For example, restrictions placed on a particular 
group to curtail their rights to participate in particular aspects of social life (such as visits 
to public parks, theatres or libraries) constitute discrimination, which is in itself a 
reprehensible act; however, they may not in and of themselves amount to persecution. 
These acts must not be considered in isolation but examined in their context and weighed 
for their cumulative effect. 680 

1334. The Mission has described above a series of acts that deprive Palestinians in the Gaza 
Strip from their means of subsistence, employment, housing and water. Palestinians are further 
denied freedom of movement and their right to leave and enter their own country. Later the 
report will address the extent to which Palestinian rights to access a court of law and an effective 
remedy are limited or denied by Israeli laws (see chap. XXVII) 

1335. 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. 

XVIII. THE CONTINUING DETENTION OF ISRAELI 
SOLDIER GILAD SHALIT 

1336. The Mission notes the continued detention of Gilad Shalit, a member of the Israeli armed 
forces, captured in 2006 by Palestinian armed groups during a cross-border operation. In reaction 
to the capture, the Israeli Government ordered a number of incursions to attack important 
infrastructure in the Gaza Strip as well as Palestinian Authority offices. This was followed by 
the arrest of eight Palestinian Government ministers and 26 members of the Palestinian 
Legislative Council by the Israeli security forces (see chap. II). 

1337. Israeli Government officials have repeatedly stated that the easing of the blockade on the 
Gaza Strip (see chaps. V and XVII) is linked to the release of Gilad Shalit. In February 2009, it 
appeared that the Israeli Government had dropped its demand for Palestinian militants to release 
Gilad Shalit before it would end the blockade. 681 However, the then Deputy Prime Minister 
stated shortly after that "Israel is facing a serious humanitarian crisis, and it is called Gilad 
Shalit, and... until he is returned home, not only will we not allow more cargo to reach the 
residents of Gaza, we will even diminish it." Israel's then Prime Minister also stated that "we 
will not reopen the border crossings [into Gaza] and assist Hamas so long as Gilad Shalit is in 



680 Prosecutors. Kupreskic et al, case No. IT-95-16-T, Judgement of 14 January 2000, para. 615. 

681 Agence France Presse quoted by France 24 - "Israel drops Shalit release from truce demands, Hamas claims" 
6 February 2009. 



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their brutal prison." 682 According to the CBS News Channel, this position was reiterated by the 
current Israeli Prime Minister in July 2009. 683 

1338. In October 2008, a Hamas spokesman stated that "the Shalit case is dependent on 
prisoners swap... He will never be released if the Israeli occupation does not release Palestinian 
prisoners whom Hamas wants free. . . " 684 

1339. The Mission is aware that negotiations, through intermediaries, continue with regard to 
the exchange of prisoners between the Israeli Government and Hamas representatives. 

1340. The Mission asked the Gaza authorities to confirm the status of Gilad Shalit. In their 
reply, which the Mission considered to be unsatisfactory, the Gaza authorities denied being 
involved in any way with the capture and detention of Gilad Shalit and stated that they are not in 
possession of any information regarding his current status. 

1341. During its investigations in the Gaza Strip, 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 (see chap. XV). 

1342. Gilad Shalit' s father, Noam Shalit, appeared before the Mission at the public hearing held 
in Geneva on 6 July 2009. 685 He informed the Mission of his extreme concern about the 
condition of his son, who has not been able to communicate with his family and has not been 
allowed to receive ICRC visits. Mr. Shalit expressed concern about the health and psychological 
status of his son after more than three years of captivity and appealed for his release. 

Legal findings and conclusions 

1343. 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. ICRC should be allowed to visit him without delay. Information about his condition 
should also be provided promptly to his family. 

1344. The Mission is concerned by the declarations referred to above, 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. 



682 Amnesty International, "Detainees used as bargaining chips by both sides in Israel/Gaza conflict", 20 March 
2009. 

683 CBS News Channel, "Gaza blockade remains until Shalit freed", 30 July 2009. 

684 "Detainees used as bargaining chips. . . ". 

685 Mission's public hearings: http://www.un. org/webcast/unhrc/archive.asp?go=090706 . 



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SECTION B: INTERNAL VIOLENCE 



XIX. INTERNAL VIOLENCE AND TARGETING OF FATAH AFFILIATES 
BY SECURITY SERVICES UNDER THE CONTROL OF THE GAZA 
AUTHORITIES 

1345. The Mission has received reports and allegations of violations committed in Gaza by the 
security services in the period under inquiry. It has heard some of those allegations first-hand 
and investigated them by comparing the accounts it received with reports of domestic and 
international human rights organizations. 

1346. From the beginning of 2006, when Hamas won the majority of seats in the Palestinian 
Legislative Council, violence between competing Palestinian political groups in the Gaza Strip 
escalated. Armed clashes periodically erupted between the security forces affiliated with the two 
main political groups - Fatah and Hamas - and culminated in June 2007, when Hamas seized 
control of the Palestinian Authority's civil and security institutions of the Gaza Strip. 686 

1347. During the six months preceding the Israeli military operations in Gaza of December 
2008-January 2009, reports of deaths in suspicious circumstances and abuses by the security 
services reporting to the Gaza authorities continued to be documented by domestic monitoring 
mechanisms, including by the Independent Commission for Human Rights (ICHR). 687 

1348. Between June and December 2008, ICHR received 45 complaints from citizens alleging 
that they were subjected to torture while being detained or interrogated. All these complaints 
were lodged against the Ministry of Interior, the police, the military intelligence, the general 
intelligence and the internal security services of the Gaza authorities, as well as al-Qassam 
Brigades. 

1349. During the same period, ICHR received about 250 complaints from citizens that security 
agencies (namely the internal security and the police) detained them without respecting legally 
prescribed procedures. In particular, ICHR reported that no arrest warrants from the competent 
authorities were presented to detainees and that the security services searched civilian houses 
without having obtained the relevant search warrants. ICHR reported that family visits to 
detainees were denied, especially in the al-Saraya and al-Mashtal detention and interrogation 
centres of the internal security agency. In addition, detainees were not brought before the judicial 



686 Non-governmental organizations reported that members of the security forces and armed groups belonging to 
both groups "committed grave human rights abuses and displayed a flagrant disregard for the safely of the civilian 
population." "Both sides killed captured rivals and abducted scores of members of rival groups and held them 
hostage, to be exchanged for friends and relatives held by their rivals." See "Occupied Palestinian Territories torn 
apart...". 

687 The Independent Commission for Human Rights is an independent Palestinian institution established in 1 993 by 
Presidential Decree with a broad mandate in accordance with national and international norms. This mandate gives 
it the authority to deal with human rights violations; complaints of abuse of power submitted by citizens; education 
and promotion; monitoring; and generally integrating human rights into Palestinian legislation and practices. The 
Mission was impressed by the outstanding work of the institutions in both Gaza and the West Bank. See ICHR, 
"Monthly reports on violations of HR" (June to December 2008), available at: 
http://www.ichr.ps/etemplate.php?id=12 . 



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authorities within the legally prescribed period. According to ICHR, the security services also 
continued to detain citizens with arrest warrants issued by the military justice authority. 

1350. Many leaders of the Fatah movement as well as the Governors of Khan Yunis and Gaza 
were at the time of drafting this report still in detention at the al-Mashtal detention and 
interrogation centre. 

1351. In the course of its investigations in Gaza, the Mission obtained information from 
international and domestic organizations and from individuals in Gaza about violence against 
political opponents by the security services that report to the Gaza authorities. The Israeli 
attacks, including the aerial strikes targeting police stations and the main prison in Gaza City 
(see chap. VII), created chaos, making it impossible to independently verify initial reports about 
violations by the security services. Towards the end of the military operations, however, 
domestic human rights organizations started to verify such allegations, including by analysing 
information from hospitals that they had received bodies of persons who had apparently not been 
killed in the Israeli attacks. 

1352. According to both domestic and international human rights organizations, members of the 
security services and unidentified gunmen killed between 29 and 32 Gaza residents between the 
beginning of the Israeli military operations and 27 February. 688 Among these, between 17 and 
22 detainees, who had been at al-Saraya detention facility on 28 December and had fled 
following an Israeli aerial attack, were killed in seemingly extrajudicial or summary executions, 
some of them while seeking medical assistance in hospitals (see chap. VII). 

1353. 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. 689 
Regardless of the intended scope of the Israeli attack on the prison, the effect was to create a 
chaotic situation that, according to some domestic observers, 690 was exploited by some elements 
in the security services. 

1354. During the course of its work in Gaza, the Mission heard first-hand accounts of violations 
against Fatah affiliates committed during the period of the Israeli military operations. Some of 
the witnesses who were interviewed by the Mission were severely distressed and asked that their 
identity not be disclosed for fear of retaliation. The Mission questioned the witnesses and found 
them to be credible. The following cases are among those reported to the Mission and are based 
on information it gathered from a variety of sources. 



688 See Under Cover of War. . . ; ICHR, "Monthly report on human rights and freedoms in the PNA-controlled 
territory", January 2009, available at: http://www.ichr.ps/pdfs/eMRV-l-09.pdf ; PCHR, "Special report: inter- 
Palestinian human rights violations in the Gaza Strip", 3 February 2009, available at: http ://www.pchrgaza. org/files/ 
Reports/English/pdf spec/Increase rep.pdf . 

689 No death sentence has been carried out since the Hamas takeover. Death sentences must be approved by the 
Palestinian Authority's President, who has not approved any of these sentences since Hamas took control of the 
administration of justice in Gaza. The last official execution was carried out in 2005 by firing squad. 

690 Mission interview with a civil society activist, Gaza City, June 2009. 



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1355. One of the individuals killed following their escape from the damaged al-Saraya prison 
was a Fatah affiliate who had been arrested and detained long before the Israeli military 
operations in Gaza. For about two weeks his family made several unsuccessful enquiries with 
different security services to discover his whereabouts. After finally tracing him, the family was 
able to visit him in the detention facility run by the internal security and saw that he was in poor 
health as the likely result of torture and inadequate detention conditions. He was reportedly not 
able to speak freely while in detention. 

1356. He was still in al-Saraya prison on 28 December 2008, when it was hit during an Israeli 
aerial bombardment. His dead body was later found with signs of bullet wounds at al-Shifa 
hospital in Gaza City. The family was told that he had been shot dead by unknown persons. 
Independent sources consulted by the Mission seem to indicate that the victim had fled from 
al-Saraya detention facility after the aerial attack and had been wounded in the attack itself or 
shot by the prison staff trying to prevent detainees from escaping. 691 

1357. The Mission received a number of reports of violent attacks against individuals affiliated 
with Fatah 692 by armed men who broke into their homes. In one incident, 693 a group of persons 
claiming to be police officers knocked at the door of a family residence in Gaza City. The family 
was confronted by a group of 7 to 10 men wearing civilian clothes, most of them masked. They 
took one member of the family outside. When they brought him back roughly half an hour later, 
he appeared to have been beaten violently with metal pipes. He died of his injuries about a 
month later. 694 

1358. In another incident reported to the Mission, a group of 10 to 12 masked men wearing 
military uniforms broke into the residence of an individual who used to work for the preventive 
security under the Palestinian Authority before the Hamas takeover. When the family tried to 
resist attempts to capture him, the masked men started shooting indiscriminately, killing one 
member of the family and injuring 1 1 others. After the shooting, the masked men fled. 
According to the information provided to the Mission, when the injured were transferred to al- 



691 The Mission ascertained that on 28 December 2008, the second day of the air strikes by Israel, about 200 to 

300 prisoners were still held in the facility. Most of the almost 700 prisoners had been released in the previous days. 
According to a Human Rights Watch report based on the testimony of prisoners, "authorities . . . 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. Some of the remaining detainees escaped the 
following day when Israel bombed the prison, but were subsequently tracked down and killed by masked gunmen. 
The ICHR documented 20 cases of escaped prisoners being shot and killed by masked gunmen from December 28 
to January 31; at least 12 of the victims had been detained in the prison for allegedly 'collaborating with the enemy.' 
Seventeen of the 29 people killed by gunmen that the Palestinian Center for Human Rights (PCHR) reported from 
December 28 to February 27 were prisoners and detainees who had fled the prison compound after Israel's attack, 
including 13 men sentenced to death for collaboration with Israel, three convicted of common crimes, and one man 
awaiting trial." (Under Cover of War. . . .). The Gaza authorities informed the Mission (in correspondence of July 
2009) that only 1 1 persons accused or convicted of criminal offences remained in their custody and were transferred 
"under supervision" to a residential apartment. See also chap. VIII. 

692 Dates and other identifying information have been removed to protect sources. 

693 Mission interviews, Gaza, June 2009. 

694 "In total, Palestinian human rights groups documented nine deaths by torture or severe beating in Gaza in 
January, February and March 2009". Under Cover of War. . . . 



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Shifa hospital, members of the security services there prevented medical staff from providing 
assistance. 

1359. The Mission was informed that - although serious - this was only one of many incidents 
in which this family had been targeted by Hamas operatives. One year earlier, a member of the 
family had been abducted and shot in the legs. 

1360. The Mission was also informed of an incident in which a group of armed, masked men 
broke into the house of a Fatah supporter in Gaza City, abducted him and took him to a nearby 
location, where he was tortured and shot in the leg. He was reportedly left unconscious and 
rescued by neighbours. The ordeal reportedly lasted about one hour. The same individual had 
previously been arrested by members of the security services and kept in detention for a month 
and a half. He was released only after signing a pledge not to participate in Fatah political 
celebrations or occasions. 

1361. The Mission was informed that, in another incident, three armed, masked men wearing 
symbols of al-Qassam Brigades broke into the residence in Gaza City of an individual who is a 
Fatah supporter and on the payroll of a Fatah-controlled institution. The men started beating 
everyone inside, including a child, and were screaming insults. All the males were then 
reportedly made to go outside - where other masked men were waiting - and were beaten with 
metal bars and with rifle butts. After this, the masked men took one of the men to a nearby 
location, where they again beat him very violently. While he was being beaten, the masked men 
reportedly kept insulting him, accusing him of collaborating with Israel and calling him a traitor. 
In response to a question by the Mission, a witness stated that he had the feeling that there was a 
clear chain of command among the group of masked men. Shortly before meeting the Mission, 
the same individual had been summoned by the internal security in Gaza along with other Fatah 
affiliates and kept for four hours at an internal security detention centre in Gaza City before 
being released. 

1362. Similarly, a group of people who were identified as belonging to the internal security 
stormed the residence of an individual in Gaza City and beat members of the family. The group 
was composed of masked men who left only after shooting him in the leg. The victim was 
allegedly prevented by members of the security services from getting treatment at al-Shifa 
hospital for his injuries. He had previously been arrested and detained by members of the 
security services. During his detention, he was allegedly subjected to different forms of torture, 
including beatings, shabah, 695 electric shocks and sleep deprivation. His captors did not 
reportedly question him or levy specific charges against him. Finally, towards the end of his 
detention, he was formally accused of "having contacts with the Ramallah government". He was 
reportedly arrested again after the end of the conflict by members of the security services and 
again subjected to torture. 

1363. The Mission was also informed of the case of another Fatah affiliate who had been 
summoned by the internal security in Gaza and detained on the basis of evidence provided by 
another member of his family who accused him of collaborating with Israel. Additional abuses 
allegedly committed by the security services include the confiscation of property from the 



695 A torture method in which the prisoner is tightly shackled for long periods. 



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families of Fatah affiliates, as well as additional cases of torture while in detention in facilities 
that they operate. 

1364. 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 very early 
on and threatened with "action" should they disobey. Hundreds of cases in which house arrest 
was imposed without any kind of due process were reported to domestic human rights 
organizations during this period. Some individuals received a written order from the police or the 
internal security (the Mission has a sample of these orders), or a verbal order from the members 
of al-Qassam Brigades or the internal security. In some cases, those issuing these orders would 
not identify themselves. The Mission was informed of one case in which an individual put under 
house arrest in this way was allegedly shot dead by the security services when he and other 
members of his family were evacuated from their home owing to the presence of the Israeli 
armed forces. 696 

1365. The Gaza authorities denied that any arrests had taken place in Gaza between 

27 December 2008 and 18 January 2009 owing to the insecurity created by the Israeli military 
operations. 697 They stated that arrests were made only after the end of these operations and only 
in relation to criminal acts, "security prevention and to restore public order". 

A. Factual findings 

1366. The Mission finds that the statements provided to it in relation to abuses committed by the 
Gaza authorities' security services are credible and has no reason to doubt their veracity. 

1367. As for violent attacks against individuals either in their homes or after being taken from 
their homes, this finding is reinforced by a number of factors. The pattern of armed and 
sometimes uniformed, masked men breaking into houses is described in almost all incidents 
reported to the Mission. Also, 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 contrary to the perceived interest of the Gaza authorities. Some of 
the accounts also indicate that elements of hierarchical control were present within the groups of 
armed, masked men executing the attacks. 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. 

1368. In relation to the allegations that between 27 December 2008 and 18 January 2009 more 
than 20 persons suspected of collaborating with Israel were killed or maimed by being shot in the 
leg or otherwise severely injured, the Gaza authorities stated that their investigations found these 
incidents to be the result of family feuds "or otherwise they were individual acts motivated by 
personal revenge." In addition, they stated that "the Government, through its competent 



696 Mission interview with a civil society activist, Gaza City, June 2009. 

697 Mission correspondence with the Gaza authorities, July 2009. 



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agencies, opened investigations into these events immediately after the war, and submitted 
charges before the competent Courts." 698 According to PCHR, however, on 2 February 2009 a 
spokesperson for the Gaza authorities stated that "the Government makes distinctions between 
abuses of law and the actions of the Palestinian resistance during the war, regarding the 
execution of some collaborators who are involved in collaborating with the [Israeli] 
occupation." 699 The statement seems to express support for a number of acts of violence that 
occurred in the chaotic atmosphere created by the military operations. 

B. Legal findings 

1369. Although not internationally recognized and therefore not able to be party to international 
human rights treaties, the Gaza authorities have an obligation to respect and enforce the 
protection of the human rights of the people of Gaza, inasmuch as they exercise effective control 
over the territory, including law enforcement and the administration of justice 700 (see chap. IV). 

1370. Before Hamas took full control of the Gaza Strip in June 2007, its leaders had publicly 
indicated that they would respect international human rights standards. 701 In July 2009, the Gaza 
authorities formally stated to the Mission that they accepted the obligation to respect human 
rights and fundamental freedoms, including those enshrined in the Universal Declaration of 
Human Rights and in the Palestinian Basic Law. They added that "the Government is in 
permanent contact with the Red Cross and human rights organizations, and listens to their 
observations and takes into account their recommendations as far as it can, and those institutions 
can testify on that". 702 

1371. From the facts ascertained by it, the Mission finds that the actions by members of the 
security services described above constitute serious violations of human rights and are not 
consistent with either the Universal Declaration of Human Rights or the Palestinian Basic Law. 
In particular, regarding the Universal Declaration - which has become part of international 
customary law - they are in violation of article 3 in relation to everyone's right to life, liberty 
and security of the person; article 5 in relation to the freedom from torture and cruel, inhuman or 
degrading treatment or punishment; article 9 stating that no one shall be subjected to arbitrary 



698 Written reply from the Gaza authorities to the Mission; July 2009. 

699 Taher al-Nouno, a spokesman of the Gaza authorities, attended the press conference with Ehab al-Ghusein, 
spokesman of the Ministry of the Interior, and Islam Shahwan, spokesman of the Palestinian police in Gaza. See 
"Special report...". 

700 For example, in their joint report on Lebanon and Israel, a group of four United Nations Special Rapporteurs 
concluded that: "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 A/HRC/6/76, paras. 4-9, for a 
brief overview of relevant events leading up to Hamas' seizure of full control in the Gaza Strip. (See also Andrew 
Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006), chap. 7. 

70I SeeA/HRC/8/17. 

702 The Gaza authorities have allowed IHCR to function uninterruptedly and regularly deal with the complaints it 
brings to their attention. 



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arrest and detention; articles 10 and 1 1 regarding the right to fair and impartial legal proceedings; 
and article 19 regarding the freedom of opinion and expression, including the freedom to hold 
opinions without interference. 

1372. The Mission takes note of the statement of the Gaza authorities of the opening of criminal 
investigations into some of the killings that happened between 28 December 2008 and 

18 January 2009. It is, however, concerned that - according to the Gaza authorities - these 
investigations concern only family feuds or individual acts motivated by personal revenge. The 
Mission also notes with concern that, at the time of drafting this report, appeals by international 
and domestic human rights organizations to the Gaza authorities to conduct serious 
investigations into all allegations of violations, to bring perpetrators to justice and to publish all 
of their findings remain unanswered. Failure to conduct credible investigations into these 
allegations and hold those responsible accountable will prevent the victims from accessing 
justice and encourage a culture of impunity. 

THE WEST BANK, INCLUDING EAST JERUSALEM 

1373. As explained above in chapter I, the Mission believes that the reference in its mandate to 
violations "in the context" of the military operations in Gaza required it to go beyond the 
violations that occurred in and around Gaza, it also believes that violations within its mandate in 
terms of time, objectives and targets, include those that are linked to the December 2008 - 
January 2009 military operations, and include restrictions on human rights and fundamental 
freedoms related to the strategies and actions of Israel in the context of its military operations. 

1374. Developments in Gaza and the West Bank are closely interrelated, in the Mission's view, 
an analysis of both is necessary to reach an informed understanding of and to report on issues 
within the Mission's mandate. On the one hand, the events in Gaza have consequences in the 
West Bank, on the other, pre-existing problems in the West Bank have been exacerbated by the 
Gaza military operations. 

1375. In its examination of the West Bank with respect to actions taken by Israel, the Mission 
focused on four key aspects in their linkage to the Israeli military operations in Gaza: (a) the 
sharp increase in the use of force by Israeli security forces, including the military, in the West 
Bank; (b) the tightening and entrenchment of the system of movement and access restrictions; 
(c) the issue of Palestinian detainees and especially the increase in child detainees during and 
after the military operations; and (d) the Gaza corollary of the detention of Hamas members of 
the Palestinian Legislative Council. 703 While the treatment by the Gaza authorities of those 
opposing its policies is discussed in chapter XIX, similar issues with regard to the conduct of the 
Palestinian Authority in the West Bank also called for investigation. Linkages with the Israeli 
operation in Gaza are elaborated in the respective chapters. 



703 The issue of Gazans detained by Israel during and following the operations from December 2008 to January 2009 
is discussed in chapter XV. 



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Methodology 



1376. One consequence of the refusal by Israel to cooperate with the Mission was that it was 
unable to visit the West Bank to investigate alleged violations of international law. The Mission 
nonetheless received many oral and written reports and other relevant materials from Palestinian, 
Israeli and international human rights organizations and institutions. In addition, the Mission 
met with representatives of a number of human rights organizations and with members of the 
Palestinian legislature and other community leaders (see annex). It invited experts, witnesses and 
victims to participate in the public hearings held in Geneva on 6 and 7 July 2009. The Mission 
also conducted telephone interviews with affected individuals and witnesses, and reviewed 
relevant video and photographic material. 

1377. Owing to the lack of access to the West Bank, the chapters in the section below rely on 
secondary information to a greater extent than in the previous sections. 

1378. The Mission found the witnesses it heard in relation to the situation in the West Bank to 
be credible and reliable. The Mission is also satisfied that the reports it reviewed and to which it 
refers are credible and based on sound methodologies. 

1379. The Mission also wrote to the Palestinian Authority and the Government of Israel seeking 
information and official positions on, inter alia, the issues addressed in this section. The 
information received by the Palestinian Authority was taken into account in the present chapter. 
The Government of Israel has not responded to the Mission's requests. 

1380. Owing to the complexity of the issues relating to Palestinian detainees and of freedom of 
movement and access, the chapters on these issues include an explanatory introduction that sets 
out the factual parameters of the problems and explains some of the key terminology and 
concepts. 

XX. TREATMENT OF PALESTINIANS IN THE WEST BANK BY ISRAELI 
SECURITY FORCES, INCLUDING USE OF EXCESSIVE OR LETHAL 
FORCE DURING DEMONSTRATIONS 

1381. The information gathered by the Mission indicates an ongoing pattern of ill treatment and 
use of force by the Israeli security forces against Palestinians in the West Bank, including East 
Jerusalem. Ill treatment and low levels of force are reported being common in encounters at 
checkpoints between Palestinians and the Israeli security forces (army, police and border 
police), 704 while a greater, sometimes lethal, degree of force has been used during 
demonstrations, incursions and search and arrest operations. With heavily armed Israeli military 
forces present throughout the West Bank, the possibility of violence always exists. As a witness 
reported to the Mission, "the use of force is part of the system of control of the occupation, 
where a key element is fear, which can only be sustained by the constant threat and the periodic 
act of violence". 705 



704 B'Tselem, "Beatings & Abuse" ( www.btselem.org/english/beating and abuse/index. asp) . For the use of private 
contractors at checkpoints, see chap. XXI. 

705 Mission interview with Defence for Children International-Palestine Section, 3 July 2009. 



A/HRC/12/48 
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1382. Violence against Palestinians in the West Bank does not only come from the security 
forces. The Israeli military operations in Gaza commenced when the West Bank was 
experiencing some of the worst acts of settler violence in several years. 706 

1383. 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. 707 A number of protesters were killed and scores were injured by 
Israeli forces during Palestinian demonstrations following the beginning of the, 708 the degree of 
violence employed in the West Bank during the operations in Gaza, has been sustained since 

18 January. 709 Reports from non-governmental organizations confirm this information. 710 

A. Settler violence in the West Bank in the period preceding the Israeli military 

operations in Gaza 

1384. In early December 2008, Israeli settlers in the city of Hebron rioted and perpetrated acts of 
violence against the local Palestinian population. Although Israel, as the occupying power, has 
the responsibility to maintain public order and safety in the occupied territory, 711 the Israeli 
police did not intervene to protect Palestinians. 712 Settler violence is a regular occurrence, 
targeting primarily Palestinian civilians and their property but also, on occasion, Israeli 
soldiers. 713 According to the Office for the Coordination of Humanitarian Affairs, "a root cause 



706 office for the Coordination of Humanitarian Affairs Special Focus: "Unprotected: Israeli settler violence against 
Palestinian civilians and their property", December 2008. In its reply to the Mission (5 August 2009), the Palestinian 
Authority reported 58 acts of violence perpetrated by settlers on Palestinian civilians from 16 November 2008 to 

1 5 December 2008, compared to a monthly average of 26 reported incidents in the year to date. . 

707 The NGO Al-Haq reported another particularly disturbing case of "what appears to be a willful killing" of a 
farmer from Hebron on 17 January 2009. According to medical personnel who were asked to collect his body from 
the Israeli soldiers by whom he had been detained, the farmer appeared to have been shot at point blank in the 
stomach while seated. See "A vicious reminder of occupation in the West Bank: Israeli soldiers Kill Palestinian 
farmer in Hebron". Al-Haq press release, 17 January 2009. 

708 Mission interview with Al-Haq, 2 July 2009 (six deaths were recorded by Al-Haq). See also Weekly Protection 
of Civilians reports of the Office for the Coordination of Humanitarian Affairs for the relevant period; the 
communication received by the Mission from the Palestinian Authority, which reported 30 injuries by shooting from 
27 December 2008 to 18 January 2009; the statements of Mohamed Srour and Jonathan Pollak at the public hearings 
in Geneva, 6 July 2009; and B'Tselem press release of 18 June 2009 "Prohibit live ammunition in circumstances 
that are not life-threatening in the West Bank". 

709 Mission meetings with B'Tselem on 3 July 2009 and Al-Haq on 2 July 2009. 

710 B'Tselem reported an increase in the number of beatings, and referred to some particularly serious cases, 
including that of an elderly shepherdess whose arm was broken by border police on 1 1 March 2009. "Border police 
break arm of Halimeh a-Shawamreh, near the Separation Barrier", Deir al-'Asal al-Foqa, March 2009". 

711 The Palestinian Authority is not allowed to enter the part of the Old City of Hebron known as "H2" as a result of 
the Protocol Concerning the Redeployment in Hebron of January 1997.. With regard to the general situation in 
Hebron see www.btselem.org/English/Hebron/ . 

712 "Ai-H a q calls for immediate measures to stop settler violence in Hebron and throughout the Occupied Palestinian 
Territory", Al-Haq urgent release,5 December 2005. In its reply to the Mission, the Palestinian Authority reported 
335 settler attacks from 19 May 2008 to 17 July 2009. 

713 In 2008, the Office for the Coordination of Humanitarian Affairs recorded 290 incidents of settler violence, 
resulting in 1 3 1 Palestinian deaths, a substantial rise over previous years. Most incidents reported involved groups of 



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of the phenomenon is Israel's decade-long policy of facilitating and encouraging the settling of 
its citizens inside occupied Palestinian territory, defined as transfer of population and prohibited 
by international humanitarian law." 714 Israeli media attribute the increase in settler violence to 
the settler movement which became increasingly radicalized after the Gaza Disengagement in 
August 2005. 715 

1385. According to various sources, 716 rioting erupted in Hebron on 4 December 2008 after the 
evacuation by the Israeli security forces of Israeli settlers from the Rajabi family home in the old 
city of Hebron. United Nations sources reported that, at first, clashes erupted between settlers 
and Israeli security forces, causing injuries on both sides; afterwards, "violence continued in 
Hebron city. Groups of settlers threw stones at Palestinian houses and set fire to vehicles, 
agricultural fields, houses and the contents of one mosque. Settlers also attempted to force entry 
into Palestinian homes." 717 One incident in which Israeli settler Ze'ev Braude shot and injured 
three members of the al-Matariyeh family was filmed and broadcast by the international 
media. 718 

1386. The wave of violence continued for days. 719 Palestinian hospitals reported 17 injuries 
during the period, including five bullet wounds. 720 



settlers attacking vulnerable targets (children, women and the elderly) mainly in the Hebron and Nablus areas. In 
January 2007, B'Tselem launched a camera distribution and video advocacy project focusing on the Occupied 
Palestinian Territory. The project is aims at providing "Palestinians living in high-conflict areas with video 
cameras, with the goal of bringing the reality of their lives under occupation to the attention of the Israeli and 
international public, exposing and seeking redress for violations of human rights. " The B'Tselem project has 
resulted in footage of these kinds of attacks being publicized, such as the attack by settlers on herders in Susy a, June 
2008.. 

714 Office for the Coordination of Humanitarian Affairs Special Focus: "Unprotected: Israeli settler violence against 
Palestinian civilians and their property", December 2008. 

715 See also, "Israel's religious right and the question of settlements", International Crisis Group Middle East Report 
N°89 - 20 July 2009. 

716 "Settler violence after evacuation of Occupied House", Temporary International Presence, Hebron, Press 
Release; "Israel braces for settler violence in wake of Hebron house evacuation", Ha 'aretz, 5 Decemeber 2008, and 
"Dozens injured as Israeli army removes settlers from Hebron house", Maan News Net, 4 December 2008. 

717 Office for the Coordination of Humanitarian Affairs Special Focus: "Unprotected: Israeli settler violence against 



Palestinian civilians and their properly", December 2008. 



71S 



For example, "Settlers filmed shooting at Palestinians turn themselves in", Ha 'aretz, 7 December 2008. The 



settler was eventually released and not charged or prosecuted. 

719 According to the Office for the Coordination of Humanitarian Affairs, "settler violence quickly spread to other 
West Bank areas (...) groups of settlers threw stones at Palestinian vehicles in more than twelve locations on the day 
of the evacuation and attacked Palestinian communities, setting fire to Palestinian properly and land, cutting down 
olive trees, slashing vehicle tires and vandalizing other property", Office for the Coordination of Humanitarian 
Affairs Special Focus: "Unprotected: Israeli settler violence against Palestinian civilians and their property", 
December 2008., See also the Alternative Information Centre Settler Violence report for November/December 2008 
available at www.alternativenews.org/publications/164-settler-violence-reports/1829-settler-violence-report- 
november-december-2008-.html and Ha 'aretz: www.haaretz.com/hasen/spages/1043794.html 

720 "jrjp declares Hebron area a closed Military Zone after settler rampage", Ha 'aretz, 4 December 2008. 



A/HRC/12/48 
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1387. The use of force against Gaza solidarity demonstrations in the West Bank during the 
Israeli operations in Gaza 

1388. There was a significant increase in the use of force by Israeli security forces during 
demonstrations in the West Bank after the start of the Israeli operations in Gaza. The degree of 
force used against protests during the previous year had already been high, including during 
protests against the Wall in places such as Jayyous, al-Ma'sara, Bi'lin and Ni'lin. 721 The villages 
where demonstrations are regularly held have lost or stand to lose much of their land to Israeli 
settlements and the Wall. A vibrant grass-roots, non-violent resistance movement has evolved 
that has attracted support from Israeli and international activists. New tactics and weapons used 
by the Israeli security forces aimed at suppressing the popular movement 722 have resulted in 
deaths and injuries. For example, in July 2008, Israeli border police killed two children, Ahmad 
Musa, aged 10, 723 and Yusef Amera, aged 17, both of whom were shot in the head. 724 

1389. Another cause of concern for the Mission were further allegations of the use of 
unnecessary, lethal force by Israeli security forces. At the public hearing in Geneva of 6 July 
2009, two witnesses, Mohamed Srour and Jonathan Pollak, described the fatal shooting, on 28 
December 2008, of two young men from the village of Ni'lin during a protest against the Israeli 
operations in Gaza. Mr Srour was himself shot in the leg during the same protest. 72 " 

1390. At the hearing on 6 July, Mr Srour stated that as a result of this war, many people all 
around the West Bank, but also in his village Ni'lin, wanted to demonstrate and express their 
solidarity with the people of Gaza. The demonstration included important participation of people 
from the different solidarity movements, from Israel as well from the international community." 
The two witnesses spoke of the atmosphere that they had encountered in the confrontation with 



721 "Repression Allowed, Resistance Denied: Israel's suppression of the popular movement against the Apartheid 
Wall of Annexation", Addameer and Stop the Wall report, July 2009. For a list of the 1 9 people including 1 1 
children killed in anti-wall demonstrations up until July 2009, see http://palsolidarity.org/2009/06/7647 . 

722 See Ni'lin Factsheet at http://stopthewall.org/factsheets/1669.shtml 

723 29 July 2008: Killing of Ahmed Husam Yusef Mousa (10) in Ni'lin. According to Al-Haq "Ahmad Husam Musa, 
a ten-year-old child, hid in an olive grove. A member of the Israeli Border Police saw Ahmad Musa, left the Border 
Police vehicle, aimed his rifle and fired a live bullet. Shot from a distance of 50 metres, the bullet entered Ahmad 
Musa's forehead and exited through the back of his skull. While two of the demonstration's organisers attempted to 
carry Ahmad Musa to safely, they were fired upon by the Border Police. They succeeded in carrying the child to 
safety, but he was already dead", "Right to life of Palestinian children disregarded in Ni'lin as Israel's policy of 
wilful killing of civilians continues", Al-Haq press release, 7 August 2008. 

724 "Right to life of Palestinian children disregarded in Ni'lin as Israel's policy of wilful killing of civilians 
continues", Al-Haq press release, 7 August 2008. See also "Repression Allowed, Resistance Denied: Israel's 
suppression of the popular movement against the Apartheid Wall of Annexation", Addameer and Stop the Wall 
report, July 2009. To illustrate the use of unusual weapons which, the report states, is aimed at creating lasting 
injury, on 13 June 2008, Ibrahim Burnat (aged 26) was shot three times in the thigh while in the weekly anti-Wall 
demonstration in Bi'lin. According to his medical report, he was shot with an explosive bullet. The report also states 
that, in the four villages mentioned, 1,566 people had been injured while six people had been killed at protests. 

725 The testimony of Mr. Srour and Mr. Pollak, including a video of the events can be viewed at 
http://webcast.un.org/ramgen/ondemand/conferences/unhrc/gaza/gaza090706pml- 
eng.rm?start=00:35:37&end=01:41:24 . 



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the soldiers and border police, which was markedly different from the situation before the 
operations in Gaza. Mr. Pollak stated: 

The atmosphere of the incident, and during and after the start of the war generally was 
that all checks and balances had been removed. The soldiers were saying things related to 
the Gaza war, taunting things like, "It's a shame we're not in Gaza killing Arabs." There 
seemed to be an enthusiasm to confront and the amount of live ammunition used shows 
this. The behaviour of the soldiers has escalated immensely - not that in the past the army 
was so gentle. 

1391. According to the witnesses, the main demonstration had ended when the army and border 
police used tear gas and stun grenades to disperse the crowd. The next sequence of events took 
place on the edge of the village, at a considerable distance from the site of the construction of the 
Wall. The two young men killed were part of a small group of demonstrators, some of whom had 
thrown stones at the soldiers. In video footage, four or five soldiers appeared to be casually 
walking around and not seemingly threatened. No tear gas was used at that stage. Dozens of 
rounds of live ammunition were fired in the direction of the group of young men, hitting three of 
them within minutes of each other. Mohamed Khawaja was shot in the forehead; Arafat 
Khawaja, who had turned to run away, was shot in the back, and Mohammed Srour was shot in 
the leg. Subsequently an ambulance was prevented from reaching the victims, who had to be 
carried some distance and were eventually put onto a pick-up truck, at which the army fired tear 
gas. Arafat Khawaja was pronounced dead on arrival at the hospital and Mohamed Khawaja 
passed away a few days later. 

1392. Two Palestinians were killed during other protests against the military operations in Gaza. 
On 4 January, Mufid Walwel was shot dead during a demonstration near Qalqilya, where the 
Wall is to be built. In Hebron, on 16 January, Mus'ab Da'na died after being shot in the head. 
According to an NGO report, the Israeli border police are believed to have been responsible for 
both incidents. 726 

1393. The Mission has asked the Government of Israel to explain the increased use of live 
ammunitions during demonstrations in the West Bank, but has received no reply. 

B. The increased level of force since the end of the operations in Gaza 

1394. Since the end of the December-January military operations in Gaza, the increased level of 
force has reportedly continued against demonstrators and in other situations. The Mission heard 
from an eye witness, how, on 13 March 2009, United States citizen Tristan Anderson was hit, 
while participating in an anti-Wall demonstration in Ni'lin, with a high velocity tear gas canister 
in the forehead. According to the witness, Mr. Anderson was taking pictures of Israeli soldiers 
and border police attacking the demonstrators. A high velocity long-range tear gas canister was 
used at short range, crushing his forehead. As he laid on the ground, the border police, who 
would have been able to seen him falling down and lying on the ground, continued to shoot tear 
gas in his direction. Video footage received by the Mission showed Palestinian paramedics in 
bright orange uniforms putting Mr. Anderson's body on to a stretcher, a tear gas canister landing 



726 Al-Haq affidavit No. 4667/2009 and 4608/2009. 



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directly beside them and a large cloud of gas developing. 727 According to the witness, Israeli 
forces delayed Mr. Anderson's transfer from the Palestinian ambulance to an Israeli ambulance 
at the checkpoint before entering Israel. 728 At 1 August 2009, Mr. Anderson remains in a critical 
condition in an Israeli hospital. 

1395. On 17 April 2009, in Bi'lin, Bassem Abu Rahma was killed by a high velocity tear gas 
canister which was shot at his chest from a distance of 30 to 40 metres. The killing, which took 
place during a peaceful demonstration against the Wall, was filmed. 729 The footage shows 

Mr. Abu Rahma standing on a small hill, clearly visible and not armed or otherwise posing a 
threat. 

1396. Eye witnesses reported to the Mission that they felt that it had become almost a sport for 
snipers, who now routinely enter villages and occupy roofs of buildings, to aim at protesters in a 
manner that is inappropriate in the context of crowd control, with apparent disregard for the lives 
or limbs of the persons they hit. 730 

1397. On 5 June 2009, five people were shot by snipers in a demonstration in Ni'lin, of whom 
one, Aqel Srour, was killed, and another, a 15 year-old boy, was shot in the abdomen and will be 
permanently disabled. 731 Al-Haq described the shooting of Srour, who according to Al-Haq had 
run to assist the boy who was shot in the abdomen, as a case of "wilful killing" 732 . 

1398. The weapons used by the security forces are also a cause for concern. Many of the injuries 
to protesters during anti-Wall demonstrations in recent months (in Ni'lin, Bi'lin, Jayyous, 
Bitunya and Budrus) and the death of Aqel Srour and that of a 14-year-old who was killed in 
Hebron in February 733 were reportedly inflicted by a .22 caliber Ruger rifle. B'Tselem has 
protested against the use of this weapon as a means of crowd control on the grounds that it is 
potentially lethal. 734 In its response to B'Tselem' s letter of 26 February, the Israeli Judge 
Advocate General wrote, that "the open-fire regulations applying to the .22 ammunition are 



727 See http://palsolidarity.org/2009/03/5324 . 



728 Mission telephone interview with Ulrika Karlsson, 5 August 2009. Israel does not allow Palestinian ambulances 
to enter Israel. The witness also reported having been shot herself in January, in the calf, with a .22 bullet shot aimed 
at her, while moments later the only other person near her was shot in the foot. See also the Democracy Now news 
report "US Consul General says awaiting Israeli Report on IDF shooting of American citizen", 16 March 2009. 

' "Our peaceful village should no longer be the graveyard of our youth", 17 April 2009, at the website www.bilin- 
village.org/english/articles/press-and-independent-media/Our-Peaceful-Towns-Should-No-Longer-Be-The- 
Graveyard-Of-Our- Youth . 

730 Mission telephone interview with Ulrika Karlsson on 5 August 2009 and direct interview with Jonathan Pollak on 
6 July 2009. 

731 Mission interview with Jonathan Pollak and Mohamed Srour on 6 July 2009 and telephone interview with Ulrika 
Karlsson on 5 August 2009. See also Addameer report. 

732 "jjjg w iHful killing of Aqel Srour following a Ni'lin demonstration against the Annexation Wall: a deplorable 
illustration of impunity's slippery slope", Al-Haq press release, 25 June 2009. 

733 "Prohibit live ammunition in circumstances that are not life-threatening in the West Bank", B'Tselem, Press 
Release, 18 June 2009. 

734 Correspondence received by the Mission, available at www.btselem.org/English/Press Releases/20090709. asp . 



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comparable, in general, to the open-fire rules applying to "ordinary" ammunition" and that 
"following your letter, we directed that the forces again be instructed with respect to the binding 
Open-Fire Regulations that apply to use of the Ruger rifle" 735 However, from the nature of the 
killing of Aqel Srour and the injuries sustained by protesters in the months following the Judge 
Advocate General's response, it is clear that the use of the Ruger rifle has not been tempered. 736 

1399. The Israeli armed forces' open-fire regulations for the West Bank provide that different 
rules apply in situations where Israeli citizens are present, as compared to situations where there 
are only Palestinians present. 737 For example, they provide for the use of live ammunitions under 
certain conditions, in the case of violent "disturbances" 738 near the Wall or in the nearby area. 
Where Israelis participate, however, the use of live ammunitions is forbidden. Similarly different 
provisions are found with regard to the use of warning shots and rubber bullets. Witnesses 
indicated to the Mission, however, that the army no longer distinguishes between Palestinians 
and their Israeli and international supporters, and uses a greater degree of force against all. 739 

1400. The Mission asked the Government of Israel about the differences in open fire regulations 
applied in the Occupied Palestinian Territory in situations in which Israeli citizens are present as 
opposed to situations where none are present, but has received no reply. 

1401. In a recent court hearing, Colonel Virob, an Israeli Brigade Commander in the West Bank, 
defended the routine use of force in achieving the goals of the occupation. 740 According to the 
Association for Civil Rights in Israel, when Colonel Virob was asked about using physical force 
during an investigation against people who are not suspects, he stated that "using violence and 
aggression to prevent the situation from escalating and the need to use even more violence is not 
only allowed but sometimes imperative (...), giving a blow, a push, in a situation even with 
people who are not involved in an operational situation, if it can advance the mission, is certainly 
possible." He added that "the way you use violence should also be appropriate (...), a slap, 
sometimes a hit to the back of the neck or the chest, in cases that there is friction, a reaction from 
the Palestinian side, sometimes a knee jab or strangulation to calm someone down is 
reasonable." 741 

1402. The Mission considers with concern reports of gratuitous abuse by Israeli soldiers. It 
heard testimonies in a video footage shown on Israeli television 742 that described a search and 



735 Letter from Major Yehoshua Gortler, Legal Assistant to the Judge Advocate General to B'Lselem, dated 
15 March 2009. 

736 



See also B'Lselem letter to Brig. Gen. Avichai Mandelblit, Judge Advocate General, 17 June 2009. 



737 



See Open Fire Regulations Booklet for the Soldier in Judea and Samaria region, issued by the Headquarters of 
the Central Command in July 2006. See "Open fire regulations for Palestinians only" (in Hebrew), Maariv at 
www.nrg.co.il/online/l/ARTl/590/452.html . 

738 Situations of disturbances are defined as those that may be the result of demonstrations, marches, and similar 
events. 

739 Mission interview with Jonathan Pollak, 6 July 2009. 

740 "Lruth walks into a Jaffa court", by Michael Sfard, Yesh Dm, 10 June 2009. 

741 Association for Civil Rights in Israel Press Release, 24 June 2009. 

742 Available at http://news.nanalO.co.il/Article/? ArticleID=641918&TypeID=l&sid=126 . 



A/HRC/12/48 
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detain operation by the Kfir brigade in the West Bank village of Haris. Hundreds of troops had 
participated in a nocturnal raid on a village aimed at finding boys who were thought to have 
thrown stones at settlers' cars some days previously. On 9 June 2009, The Independent reported 
on the operation, quoting soldiers of the Kfir Brigade involved. One was quoted as saying he saw 
many soldiers "just knee [Palestinians] because it's boring, because you stand there ten hours, 
you're not doing anything, so they beat people up." 743 A second soldier described a "fanatical 
atmosphere" during the search operations. "We would go into a house and turn the whole thing 
upside down", he recalled, but no weapons were found. "They confiscated kitchen knives." The 
first soldier stated that numerous soldiers were involved. "There were a lot of reservists that 
participated, and they totally had a celebration on the Palestinians: curses, humiliation, pulling 
hair and ears, kicks, slaps. These things were the norm." He described the beating of a child: 

The soldiers who took [detainees] to the toilet just exploded [over] them with beatings; 
cursed them with no reason. When they took one Arab to the toilet so that he could 
urinate, one of them gave him a slap that brought him to the ground. He had been 
handcuffed from behind with a nylon restraint and blindfolded. He wasn't insolent, he 
didn't do anything to get on anyone's nerves ... [it was] just because he's an Arab. He was 
something like 15 years old. 

1403. He stated that the incidents in the toilet were the "extreme" and added that the beatings 
did not draw blood. They were "dry beatings, but it's still a beating" 



744 



1404. Video footage uploaded to the internet by Israeli border police, and filed under "comedy" 
offers an insight into how wanton abuse is perceived by members of the security forces 
themselves. The Mission has received reports of other, similar occurrences, giving rise to 
the concern that an increased level of force and the dehumanization have become normalized in 
the practice of security forces. 

C. The role of impunity 

1405. Several witnesses told the Mission that, during the operations in Gaza, the sense in the 
West Bank was one of a "free for all", where any behavior was permitted for Israeli forces. An 
even greater use of force than that used in the West Bank could be attributed to a change in 
atmosphere or attitude towards the "other" during time of war. There are indications that this 
shift in attitude was also apparent during the war in Lebanon in 2006. 747 The concept of what is 



743 "Bound, Blindfolded and Beaten, By Israeli Troops", The Independent, 9 June 2009. 

744 Ibid. 

745 "Border Police upload footage of their abuse of Palestinians to YouTube", Ha 'aretz, 1 9 June 2009. The article 
reports how in the footage an Arab youth slaps himself while a voice is heard instructing him to say "I love you, 
Border Police," and "I will f**k you, Palestine," in Arabic, to the raucous laughter of those present, all border 
police. 

746 For example, "Soldiers come across Palestinians and detain and abuse them for hours, Dura, April 2009", 
B'Tselem. 

747 Mission telephone interview with Sarit Michael, 5 August 2009. In the video footage of the shooting of an Israeli 
demonstrator during the war in Lebanon in 2006, a border police member can be heard saying, after the order to 



A/HRC/12/48 
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considered "normal" and "acceptable" conduct risks shifting to even higher levels, if those in 
positions of responsibility do not respond appropriately. In the face of the recently increase in 
violence by the Israeli security forces in the West Bank, B'Tselem stated that condemnations by 
Ministers and other officials 

remain solely declarative. Security forces, meanwhile, misusing their power, continue to 
abuse and beat Palestinians, among them, minors (...). If a message is sent to security 
forces, it is that even if the establishment does not accept acts of violence, it will not take 
measures against those who commit them. The effect of such a message is that the lives 
and dignity of Palestinians are meaningless and that security forces can continue, 
pursuant to the function they serve, to abuse, humiliate, and beat Palestinians with whom 
they come into contact. 748 

1406. In the past, every case in which a Palestinian not participating in hostilities was killed was 
subject to criminal investigation. This policy changed in 2000. Criminal investigations are now 
the exception, 749 these cases are now simply discussed in an "operational debriefing" by the 
military itself 750 In 2003, the Association for Civil Rights in Israel and B'Tselem filed a petition 
to reverse this policy change, demanding that every civilian death be independently investigated. 
The petition included demands for investigations into individual deaths as well as the principle 
question relating to the overall policy. The former were dismissed, while the principle question is 
still pending. 751 

1407. Yesh Din reports that over 90 per cent of investigations into settler violence are closed 
without an "indictment being filed". 752 B'Tselem reported in June 2009 that the charges against 
Mr Braude, the Hebron settler who was filmed shooting and injuring three Palestinians in 
December 2009, would be dropped, as the court had ordered that "secret evidence" against him 
be disclosed, and the potential public harm of this disclosure would outweigh the harm done by a 
person, documented as having committed a violent crime, being released back into society. 753 



open fire was given, "now we're in Lebanon". When passing by the injured demonstrator lying on the ground 
bleeding from his head injury, the commander ignored the calls by a woman to get an ambulance for the injured 
Israeli. He answers that there are many Israelis injured in Lebanon, too. As shown in the footage, the demonstrator 
was shot at close range from behind, as he was walking in front of the soldiers. See 
www.liveleak.com/view?i=8dbal96f36 . 

748 "Beating and Abuse", B'Lselem. 

749 Mission telephone interview with the Association for Civil Rights in Israel, 29 July 2009. 

750 Mission interview with Daniel Reisner, 6 July 2009. See also "Response to the Attorney -General's Refusal 
Concerning a Gaza Probe" at www . acri . or g . il/en g/story . a spx? id=6 3 5 and chapter XXVIII below. 

751 See the Association for Civil Rights in Israel press release at www, acri. org. il/eng/Story . aspx?id=2 16 . Lext of the 
petition is available at www.btselem.org/english/Legal Documents/HC9594 03 Investigations Appeal.rtf. 

752 "Law Enforcement upon Israeli Civilians in the OPL", Yesh Din data sheet, July 2008. 

753 B'Tselem compares this to the admission injudicial proceedings of secret evidence in the prosecution of 
Palestinians (see also section below). See "8 June '09: Bring Ze'ev Braude, the shooter from Hebron, to justice" 
B'Tselem press release. 



A/HRC/12/48 
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1408. In July 2009, an Israeli activist who had been shot in the head in 2006 by the Israeli 
border police was awarded compensation for his injury in an out of court settlement. To date, the 
commander who ordered the shooting has not been subject to criminal investigation. 754 

1409. On 7 July 2008, Ashraf Abu-Rahma was shot at short range while blindfolded and 
handcuffed. The incident was filmed and widely broadcast. 755 When the Israeli Military 
Advocate General charged the officer who ordered the shooting with "conduct unbecoming", 
Israeli international law Professor Orna Ben-Naftali stated that "the decision (was) indicative of 
a policy of tolerance towards violence against non-violent civilian protests against the 
construction of the Separation Wall". She added that "the implication of such a policy is twofold: 
first, it might transform 'conduct unbecoming' - which as a matter of law is a war crime - into a 
crime against humanity; second, it may well be construed as an invitation to the international 
community to intervene through the exercise of universal jurisdiction." 756 

D. Legal analysis and conclusions 

1410. Israel has obligations to Palestinians in the West Bank under both international 
humanitarian law and international human rights law. With regard to the former, the obligations 
flow from the status of Israel as the occupying power and the consequent obligations concerning 
protected persons. With regard to the latter, specific human rights obligations to all individuals in 
the West Bank arise from both customary law and the obligations assumed by Israel under the 
various human rights conventions that it has ratified. The obligations under both bodies of law 
are complementary and mutually reinforcing, and provide a clear framework against which the 
facts outlined above may be analysed (see chapter IV above). With regard to the issues discussed 
in the present chapter, the most relevant obligati