Final Comments on the Report's recommendations

Re: Israel

The report decided that states have a duty to investigate allegations of breaches of the law and that Israel has not replied to the questions addressed to it by the mission. Investigations have been undertaken that do not, in the view of the mission, meet the standard set by the international law.

Re: Gaza

The mission noted that there is no system for the monitoring or redress of human rights violations and other international humanitarian legal questions in Gaza currently. Serious attempts are not evidently being made to prevent further rocket attacks upon southern Israel or militancy within Gaza. Further, allegations of serious ongoing wrongs committed by various groups including the authorities occurring within Gaza have not been seriously investigated.

Re: the West Bank

Lack of accountability for excesses committed (especially by the Palestinian authorities against Palestinian opponents of the authorities) also occurs in the West Bank. The Palestinian Ministry of the Interior has even chosen to ignore requirements to release detainees issued by the Palestinian High Court. The mission believed more commitment to human rights was required in the West Bank.

Final Comment and Recommendations

Given that the State actor, Israel, appears disinclined to act to protect human rights and in order to prevent impunity, the mission recommended that the universal jurisdiction be relied upon to promote international accountability. Reparations (as required by the international system of justice) not being available within the Israeli system, the mission further recommended that they be provided for by the international community. Finally, Chapter XXX of the report made recommendations arising from the findings of the mission to a number of UN bodies, Israel, responsible Palestinian authorities and the international community concerning accountability, reparations, the avoidance of further serious human rights violations, the blockade and reconstruction, military procedures, the protection of human rights defenders and follow-up procedures concerning the implementation of the recommendations.

Gilad Shalit, "Rockets", freedom of movement and how the 3 Sides have treated dissents and each other

· What is the nature of the detention of Gilad Shalit?

The detention of Gilad Shalit since 2006 (resulting from a Palestinian incursion into Israel) that continues today has been raised in relation to this conflict. Several Palestinians in both Gaza and the West Bank have been interrogated and punished in relation to this detention since 2006, Palestinians were questioned in relation to the detention during the conflict and Mr Shalit’s father gave testimony to the mission in Geneva.

Under the 3^rd Geneva Convention, Mr Shalit is a prisoner of war and should be treated humanely, he should be allowed external communication as appropriate under the Convention, the International Committee of the Red Cross should have access to him immediately and his family should immediately be made aware of his current condition.

Israeli officials have suggested that the blockade will not be lifted until Mr Shalit’s detention ends. As discussed in recent posts, the UN fact-finding mission on the Gaza invasion considered such collective punishment illegal.

· What is the nature of the targeting of Fateh affiliates by the Gazan security services from 27 December 2008 to 27 February 2009?

Several Fateh affiliates, including some escaped Gazan detainees, have been killed by the security services, and other violence and detentions have been reported. The mission has noted five cases that it believes together indicate an illegal pattern of political persecution.

· What is the nature of the targeting of Hamas affiliates by the Israeli security services in the West Bank?

The mission regretted that Israeli non-cooperation made investigation of these claims, which it considered relevant to its mandate to consider, difficult. A number of protesters were killed during demonstrations and scores were injured, as sharply increased levels of force evidently became more normalised during the hostilities in nearby Gaza. That increased level of force has been sustained since the end of formal hostilities, according to the mission. It has also become evident that rules of engagement that involve the use of live ammunition in cases of civil disturbance in the West Bank now appear to discriminate against Palestinians and the use of sniper fire was reported to the mission. Further, the mission considered a situation of impunity appeared to have developed which amounts to a legal breach by the Israeli authorities in that they appear to be wilfully currently failing to adequately protect Palestinian civilians in the West Bank.

· What is the nature of detention of Palestinians in Israeli prisons?

The mission noted that since the beginning of the occupation of Palestine by Israel in 1967 it has been estimated that 700,000 Palestinians have been detained in Israel. Recently, there has been an estimate that 8,100 Palestinian “political prisoners” (including 60 women and 390 children) were detained as at 1 June 2009. Most are charged or convicted under a military system for Palestinians in the West Bank in which due process rights are severely limited. Many are held under administrative detention and some are held under an Israeli unlawful combatant law. Gazan prisoners are also detained and their system of detention has altered recently (but before the conflict) making it relevant to the mission. Many recent or current West Bank child detainees were being held for protesting the hostilities in Gaza thus sharply increasing the numbers of child detainees when compared to the same time last year.

Affiliation with Hamas has also been a significant factor in likelihood of detention generally since around 2005. The detention of Gilad Shalit also resulted in a series of lengthy detentions of mainly Hamas affiliates in poor conditions. Several were Palestinian parliamentarians and this led to a significant disruption of the legislative and executive oversight process and hence of West Bank governance. The hostilities saw more detentions of Hamas affiliates.

The Israeli government has thus violated the international law against arbitrary detention, violation of the special rights of children, collective punishment (by detaining parliamentarians) and discrimination based on political beliefs and ethnicity in several of these cases.

· What is the nature of restrictions on freedom of movement in the West Bank?

The long-standing restrictions are imposed by roadblocks, identity cards, permits, assigned residence, checkpoints and the Wall. Also restrictions are imposed on family reunions, re-entry from abroad and return of refugees. Settlements, buffer zones, various military zones, connecting roads and Wall building zones are either wholly or partially off limits. Tens of thousands of Palestinians are not allowed to travel abroad at all thus, for example, making their physical testimony before the mission impossible.

The restrictions evidently increased during the hostilities especially near the borders with Israel including in Jerusalem and included several days of extreme restriction.

Following the hostilities, a more restrictive regime involving both more demolitions and settlement activity is in evidence than before the conflict and also one which further physically divides Gazans from the people of the West Bank. Israel planned a further 73,000 settler homes in the West Bank (which was expected to double the settler population at the location) as the mission was reporting and had recently approved 15,000 of them for building. The mission saw the current restrictions as disproportionate to any military purpose served and viewed the separation moves dividing Gaza from the West Bank as legally alarming (given their united legal position, internationally, as the Occupied Palestinian Territories).

· What is the nature of the treatment of Hamas affiliates by Palestinian Authority security forces?

Allegations were made of unlawful arrest and detention and interruption of freedom of assembly and expression relevant to the mission in the period of hostilities and beyond.

Cases of tortures and deaths in detention possibly caused by torture appear to have occurred. Complaints have also not been properly investigated. Cases of excessive force and suppression of demonstrations have also been alleged.

The forces have also been accused of preventing the media from covering the demonstrations against the Gaza hostilities and generally intimidating the media. Further restrictions upon Hamas’s and its affiliates’ activities have apparently also been applied. The mission considered these restrictions unlawful.

· What is the nature of the rocket and mortar attacks upon Israel from Gaza?

Since 2001, around 8,000 rockets and mortars have been launched into southern Israel from Gaza. The range over the border increased to around 40 kilometres during the hostilities. Since the 18 June 2008 ceasefire, rockets fired from Gaza had killed (as the mission was reporting) three Israeli civilians (and 2 Gazan civilians on 26 December 2008). Over a thousand civilians are alleged to have been injured (over 900 of those were injured during the hostilities). A report based on data from late 2007 has claimed that 72 to 94% of children in Sderot (a major target since 2001) have suffered from Post Traumatic Stress Disorders while a smaller percentage of adults have suffered from the Disorders. Large numbers have now received treatment, especially during the hostilities. Damage has been done to houses, schools, cars and a synagogue. The cultural life of southern Israel has also been damaged by the exodus from the area made more pronounced by the extension of the rocket and mortar range during the hostilities. Defensive measures have also been costly to Israel (although the mission noted with evident displeasure that Palestinian Israeli towns within range of the attacks had not been as well provided for as Jewish towns). The mission generally felt that the rockets and to a lesser extent mortars could serve no useful military purpose and had both been improperly and indiscriminately (essentially deliberately) directed at civilian areas. Their use, when not reasonably aimed at any military target, may therefore amount to a crime against humanity.

Reprisals proposed by Hamas and other Gazan military forces, whether by rocket attacks or otherwise, against civilians for the civilian casualties of the hostilities would also be illegal.

· What is the nature of human rights issues within Israel?

Allegations of repression of dissent, restriction of freedom of information and mal-treatment of human rights activists within Israel have been made. Hundreds of thousands of mainly Palestinians protested within Israel against the Israeli military operations in Gaza. Protests led to 715 arrests (including in East Jerusalem) and permits to protest were especially difficult to obtain in Palestinian areas of Israel. Around a third of those arrested were under the age of 18. The mission noted the proportionally small number of arrests, given the size of the protest movement, but also called for fair treatment and non-discrimination. Minor and perhaps isolated breaches of the law by security forces occurred that should nevertheless be investigated. Detention before trial was more likely for Palestinian than for Jewish citizens. Interrogations of activists by Shabak concerning their political activities and a degree of compulsion that occurred in relation to this were also concerning for the mission.
Organisations that contributed to information flows that the government sought to suppress or that opposed the government policy in Gaza were occasionally singled out for various forms of pressure or punishment by the government. Media access had been restricted since the month before the outbreak of hostilities and certain restrictions on human rights organisations remained in force as the mission reported. The mission viewed the proper access to information (then being denied) as necessary for the prevention of misconduct by any of the former parties to the hostilities.

More Specifics on the nature of the invasion and defence

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What was the nature of the attacks on the Gazan Parliament and a Gazan gaol investigated?

Although Israel asserts that they were legitimate targets, the mission found no evidence that they were in use as military bases or in any military way, found their targeting to be deliberate and therefore concluded that they were illegally targeted (according to the laws of war that prohibit the targeting of other than clear military targets).

What was the nature of the attacks upon the Gazan police force?

Israel has admitted to targeting the Gazan police force. In the first minutes of the hostilities on 27 December 2008, four police facilities were hit and 99 police personnel were killed (along with 9 apparent bystanders). Two other police facilities were targeted in the hostilities and a total of around 240 police personnel were killed in the period (accounting for a large percentage of the total of 1,400 killed mentioned in the last post). The mission regarded police force personnel as prima facie civilian personnel notwithstanding that a number of them may have actually been combatants as a result of their membership of other groups and therefore regarded their targeting particularly as a group as reckless and particularly as it was also likely that non-police personnel would be in the vicinity of the six facilities targeted at the time and in the places targeted. The mission was especially concerned that it was especially unlikely that the first 99 Gazan police force personnel killed along with the 9 non-police bystanders were likely to be in any way combatants in that earliest stage of hostilities.

Did Palestinian armed groups generally take sufficient care to avoid Gazan civilian casualties?

Gazan groups may have both improperly taken insufficient care to distinguish themselves from civilians and unreasonably operated in areas with civilians in the vicinity. However, as they did not force civilians into or to remain in such areas while they conducted operations, the burden remains with the Israeli forces to minimise civilian casualties. The mission found no evidence of mosque use or UN facility use (or especially hospital or ambulance use as claimed by Israel) for military purposes though it acknowledges that attacks may have occurred from near such facilities and some mosques especially may have been used for military purposes at some times and that, where such attacks occurred (or where facilities were used for military purposes), this potentially exposed civilians to unnecessary risk.

Did the Israeli armed forces generally take sufficient care to avoid Gazan civilian casualties?

Generally, Israel has an obligation to effectively warn civilians in advance of attacks and occasionally met this obligation by sufficiently specific warnings. On other occasions, however, warnings by pre-recorded telephone messages and leaflets were not sufficiently specific and therefore lacked sufficient credibility to be effective warnings. Messages directing civilians into central areas in cities, which central areas had already been bombed severely, also lacked the requisite credibility, in the view of the mission.

The practice of so-called “roof knocking” (i.e. the initial use of lesser explosives in the first phase of air attacks) was not considered by the mission to be an effective warning but rather to constitute in itself an attack upon the affected civilians. Finally, even apparently adequate warnings do not obviate the need for all other feasible measures to be used to prevent civilian casualties.

I will now consider three cases considered in detail by the mission.

The first was a high explosive and white phosphorous shelling over several hours on 15 January 2009 (after Israeli forces had been fully informed of the risk) on a UN compound in Gaza City sheltering 600 to 700 civilians that also contained a large fuel depot. Given this full warning to the Israeli forces, the mission considered that the Israeli armed forces violated the laws of war in this case in not adequately amending their choice of the means and method of this attack.
The second attack was on the same day and in the same city also with white phosphorous shells that the mission considers was deliberate, without warning and unprovoked (despite Israeli claims) on the Al-Quds Hospital and an adjacent ambulance depot. It caused panic among sick and injured people and produced fires that were not extinguished for a full day and evacuations were required.
The third case was an intense artillery bombardment also with white phosphorous upon another hospital in the east of the same city after inadequate generic and routine warnings.

The mission also found that attacks on civilian hospitals such as the two above are, of course, prohibited under the laws of war in any case. The implication appears to be that this third attack was also a deliberate attack on a hospital, as the second one evidently was.
The mission investigated a further apparently indiscriminate attack that resulted in fatal civilian casualties. At least four mortar shells were fired near a UN school in Jabalya that was sheltering more than 1,300 people and killed at least 35 people in a home and a nearby street. Israeli justifications lack credibility because of factual inaccuracies and in any case the mission considered the response to an alleged Palestinian mortar attack in this heavily populated area to be so out of proportion to be indiscriminate and to thus violate the laws of war and the right to life of the Palestinian civilians killed.

The mission next reported on eleven further separate lethal incidents of deliberate attacks on civilians.

On one of the two occasions on which houses had been attacked in the Samouni neighbourhood south of Gaza City, civilians had been forced by the Israeli forces to assemble in the house.

Seven other attacks were upon fleeing civilians with white flags displayed (in some cases fleeing as required by the Israeli forces). The report suggests that, in all nine cases to which it is referring, the Israelis were in control of the area, could reasonably be expected to have ascertained the civilian status of the person (or people) killed and that in the majority of the cases they deliberately prevented timely evacuation for treatment or access of ambulance personnel for evacuation or treatment. The mission considered this, together with corroborating testimony of Israeli soldiers that it reviewed in two publications that it received, amounted to a pattern suggestive of orders that provided for a low threshold for the use of lethal fire upon civilians.

The final two cases are of deliberate attacks upon civilians, the mission believed, in a mosque during the early evening prayer killing 15 and in a condolence tent killing five.

A further incident (of a house bombing that killed 22 family members that were sheltering inside) Israel claims to have been an error in that a neighbouring house containing munitions had been the target. The mission believed the claim lacked credibility and in any case regarded the act as an international wrong done by the Israeli state.

With regard to the use of white phosphorous generally, the mission considered that its use in this conflict in a built-up area by Israel was systematically and wilfully indiscriminate and, given the severe nature of the wounds it produces in civilians, proposed its use be completely banned in built up areas.
The use of flechette munitions, the mission suggested, which it noted the Israelis used in this conflict in built-up areas as, for example, at the condolence tent mentioned above, was also inappropriate in built-up areas because of the special possibility of unintended civilian casualties after detonation.

The mission received evidence from medical personnel which suggests that dense inert metal explosive (DIME) munitions may have also been used somewhat extensively with the special health issues for civilians that come with the use of DIME munitions and heavy metals.
The mission also received allegations which it did not test of the use of both depleted and non-depleted uranium munitions.

The next subject reported on was the destruction of industrial infrastructure, food production facilities, water and sewage infrastructure and housing.

After falsely warning of the destruction of the only remaining flour mill on the Strip on several previous days, the mill was finally struck several times on 9 January 2009 with no military justification. This is a grave breach according to the articles of the fourth Geneva Convention as a case of wanton destruction for a non-military purpose and therefore a war crime. Its clear purpose was also to deprive a civilian population of sustenance and it is thus also a violation of customary international law.

A strike on the chicken farms of Mr Sameh Sawafeary south of Gaza City alone (by armoured bulldozers systematically destroying plant and material, flattening chicken coops and killing all 31,000 chickens inside) depleted the Gaza egg market of 10% of its capacity. The mission drew the same legal conclusions as in the case of the flour mill.

The mission believed it had reasonable evidence that Israeli forces also deliberately struck the wall of a sewage treatment facility lagoon causing the outflow of 200,000 cubic metres of raw sewage onto neighbouring farm land.

Regarding the strikes on a water treatment plant, the mission believed, given the size of the plant and the multiple air strikes, that the Israelis deliberately struck the large water treatment plant on the first day of air strikes. Again, the same legal findings apply as with the flour mill.

Several residential neighbourhoods were subject to both aerial bombing and intensive shelling in the context of the ground advance. In other cases, however, no military advantage can be associated with such attacks on such areas. The mission has concluded that such a wave of unnecessary but systematic destruction coincided with the final three days of the conflict and the imminence of the Israeli withdrawal and this conclusion has been corroborated by the published testimony of Israeli soldiers. The same legal conclusions must again be drawn as with the flour mill and also the right of adequate housing of the families whose houses were damaged or destroyed was violated by this destructive wave.

Further to this, the only cement packaging plant in Gaza, ready mix concrete factories, more chicken farms and food and drink factories were destroyed, in the opinion of the mission indicating a clear policy of general destruction of non-military infrastructure.

In four incidents considered by the mission, Israeli forces were alleged to have coerced Gazan civilian men at gun point, blindfolded and handcuffed into being “human shields” during house searches (despite assurances by the Israeli military that this illegal practice (as confirmed by the Israeli High Court) had been discontinued). The mission believed that the allegations, corroborated as they also were by the testimony of Israeli soldiers, were well-founded. The same men were also interrogated under threat of death or injury in an attempt to extract information, also a violation of international humanitarian law.

Large numbers of civilians were also rounded up and detained during the conflict. Many Palestinian men in particular were taken to Israeli detention facilities in Israel. In none of the cases investigated by the mission did the evidence show that the men were armed or apparently dangerous to the Israeli forces. Detention was often degrading, unsanitary and dangerous to the health of the civilians detained due to long periods of exposure in the open in cold weather in some cases and frequently deprivation of water and food.

In one case, the detainees were located next to a position from which Israeli tanks and artillery emplacements were firing.
In Israel, harsh interrogations occurred, charges were laid in some cases of being unlawful combatants (but not sustained in the case of any of the victims interviewed) and degradations continued.

This treatment of civilians is consistent with the evidently systematic pattern of abuse noted throughout the mission’s report. The defence of error appears difficult to sustain in the light of the advanced precision weapons used by the Israeli forces, the statements by the Israeli forces that almost no errors occur and the human rights training the forces receive. In that light, the mission concluded that the apparent systematic abuse is clearly deliberate.
The concept of the deliberate use, as a policy being employed, of disproportionate force, great civilian mal-treatment and the indiscriminate destruction of civilian infrastructure and property, developed in Lebanon in 2006, and sometimes referred to as the Dahiya Doctrine, is evident in this conflict. Israeli leaders have, in fact, not hidden this doctrine, making such statements as “destroy 100 homes for every rocket fired” (such destruction would be a clear contravention of international humanitarian law, the mission believed).

The combined effect of the blockade banning or restricting imports and exports which already produces inhumane results and the military action is naturally even more inhumane. The already blockade-impaired economy is now further impaired by a lack of fuel for electricity upon which much basic infrastructure depends.

Factories, fishing boats and much agricultural land and many wells were all rendered unusable by the conflict and in its aftermath, further exacerbating the economic malaise. What is more, the continued blockade impedes any reconstruction efforts.

The UN Development Programme has reported the apparent conflict outcome of 3,354 completely destroyed houses and 11,112 partially damaged houses. Health outcomes, already damaged by the blockade, can be expected to deteriorate as a result of the resulting homelessness among other things, particularly affecting women and children. Already unsatisfactory water and sanitary standards (largely due to the blockade) have been substantially worsened by the infrastructure attacks mentioned above and also by the consequent leakage of partially treated sewage into the sea. The thus already blockade-weakened and more and more overstretched health system itself was directly attacked by the Israeli armed forces at the same time as it had to deal with the casualties of the conflict.
The numbers of people affected by permanent physical and mental disabilities and illnesses is thus likely to be great especially following the use of white phosphorous and tungsten containing munitions. Gazan mental health professionals have claimed that 20% of children are today suffering Post Traumatic Stress Disorders.
In addition, 280 schools and kindergartens were destroyed that (along with the rest of the school system) the blockade had, in any case, long deprived of the opportunity for adequate repair.
The mission also suggested that the position of women had likely deteriorated as a result of the generally deteriorating situation, as claimed by some submissions.
The mission acknowledged the temporary increase in the unsatisfactory level of humanitarian aid permitted into Gaza during the conflict but noted that the level of aid permitted had been reduced again since the end of the conflict. In particular, it found that Israel had violated its legal obligation to allow the free passage of all medical and hospital objects and food and clothing into Gaza. Further the mission noted that it had not met its obligations as an occupying power to provide adequate medical and hospital services and to permit relief operations where the territory is not well-supplied.

Given all of the above, Israel has further, by both its earlier blockade and recent destruction, deliberately denied the population of Gaza its rights to sustenance and a decent standard of living and illegally inflicted a collective punishment on the population. The mission further considered that some of the restrictions that continue to be imposed by the Israeli government upon Gazans might constitute acts that amount to crimes against humanity.

Israel's Christmas 2008-2009 Bombing and Invasion of Gaza, War Crimes and Crimes against Humanity

So does "purity of arms" prevent Israel from committing war crimes and crimes against humanity? A UN report suggests not. I'll review the report in the next few posts for those who don't know what actually happened.

The report is of a properly constituted fact-finding mission asked to investigate whether various human rights breaches occurred in or in relation to the recent conflict in Gaza regardless of who committed the breaches. There is thus no evidence of bias in either the terms of reference for the mission or the make up of its membership despite Israeli claims.

The mission considered that the predominant issue was the treatment of all civilians and the full context required their treatment to be considered in all of Israel (including West Jerusalem) and the West Bank (including East Jerusalem) from the Hamas/Israel “Cease Fire” [the mission’s inverted commas] of 18 June 2008 until 31 July 2009.

For the purpose of the mission the mission members conducted public hearings in Gaza (where they also conducted field enquiries for around two weeks all up) and Geneva, called for and received submissions and also visited Amman for two days for interviews necessitated to be held there by Israel’s non-cooperation in permitting access to territory controlled by Israel. Israel did not cooperate with the mission at all and the mission was not permitted to visit either Israel or the West Bank (entry to Gaza itself appears to have only been possible with the cooperation of Egypt via the Rafah crossing, entry to southern Israel (another site of special interest) was obviously denied and Israel may have penalised, by ongoing imprisonment, at least one person for having given direct evidence to the mission following the giving of that evidence and upon that person’s return to Israeli controlled territory).

The hostilities were formally initiated by Israel on 27 December 2008 with the commencement of bombing in retaliation for rocket and mortar fire from Gaza (that had been occurring between the 18 June 2008 ceasefire agreement and 27 December 2008) that preceded an invasion and continued until the 18 January 2009 withdrawal of Israeli troops from Gaza. As I mentioned above, the mission considers the entire period from 18 June 2008 to 18 January 2009 and also up to 31 July 2009.

First the report considers this period of alleged provocation by Gazans. The report found that Israel was engaged in the period in an economic and social blockade of Gaza and further that the 4^th Geneva Convention requires that civilian populations be protected from adverse humanitarian events resulting from blockades without conditions. The mission considers that the blockade contravened and contravenes that requirement (more detail in later posts).

The actual 3 January 2009 to 18 January invasion and occupation was supported by the Israeli air force and shelling from the Israeli navy and pre-invasion bombing from 27 December 2008 and was conducted by eight brigades (including one paratroop brigade and five armoured brigades).

Total fatal casualties on the Gazan side in Gaza appear to have been around 1,400 (Israel claims a figure of around 1,100 and Hamas claims somewhat more than 1,400 fatal casualties). Reports suggest an unacceptably high proportion of civilian casualties and thus a prima facie case of undue recklessness on the part of the Israeli military. I will further consider the Gazan part in this (and the Israeli part in more detail) in later posts.

The total fatal casualty figure in southern Israel from 27 December 2008 to 18 January 2009 appears to be four of which one death was that of a soldier. In Gaza itself, fatal casualty figures on the Israeli side amounted to 9 Israeli soldiers killed of whom 4 deaths were as the result of “friendly fire”. This suggests that the issue of proportionality may be relevant to the humanitarian questions being considered here.