A hrc crp 4

Human Rights Council Twenty-nine session Agenda it ems 7 Human rights situation in Palestine and other occupied Arab territories

Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1* ** Summary T he present document contains the det ailed finding of the independent commission of inquiry est ablished pursuant t o Human Right s Council resolut ion S-21/1. T he commission’s principal findings and recommendat ions are provided in document A/HRC/29/52.

* Reproduced as received. ** The information contained in this document should be read in conjunction with the report of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1 (A/HRC/29/52).

GE.15-10383 (E)

*1510383*

A/HRC/29/CRP.4

Contents Page

I.

Int roduct ion ..........................................................................................

1-5

3

II.

Mandat e and met hodology .......................................................................

6-21

3

Assessment of information and st andard of proof ..................................

14-21

5

Legal framework ....................................................................................

22-52

7

A.

Int ernational humanitarian law ...........................................................

23-37

7

B.

Int ernational human rights law ...........................................................

38-46

12

C.

Int ernational criminal law .................................................................

47-52

15

IV.

Cont ext ..............................................................................................

53-58

17

V.

P rincipal findings and conclusions .............................................................

59-550

18

A.

T he Gaza St rip and Israel ..................................................................

59-502

18

B.

T he West Bank, including East Jerusalem ............................................

503-550

133

..............................................................................................

551-600

147

A.

Israel ............................................................................................

556-572

148

B.

Gaza ..............................................................................................

573-600

153

Account abilit y .......................................................................................

601-667

160

A.

Israel .............................................................................................

607-651

162

B.

P alest ine ........................................................................................

652-661

176

C.

Assessment ....................................................................................

662-667

179

Conclusions and recommendations ...........................................................

668-685

180

A.

Concluding observat ions...................................................................

668-675

180

B.

Recommendat ions ...........................................................................

676-685

182

A. III.

VI.

VII.

VIII.

2

Paragraphs

Impact

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I.

Introduction 1.

On 23 July 2014, t he Human Right s Council, in it s resolut ion S-21/1, decided t o “urgent ly dispat ch an independent, internat ional commission of inquiry t o invest igat e all violat ions of int ernat ional humanit arian law and int ernat ional human right s law in t he Occupied P alest inian Territory, including East Jerusalem, particularly in the occupied Gaza St rip, in t he cont ext of t he milit ary operat ions conduct ed since 13 June 2014, whet her before, during or aft er, to establish the facts and circumstances of such violations and of the crimes perpet rat ed and t o ident ify t hose responsible, t o make recommendat ions, in part icular on accountability measures, all with a view to avoiding and ending impunit y and ensuring t hat t hose responsible are held account able, and on ways and means t o prot ect civilians against any furt her assault s, and t o report t o t he Council at it s t went y -eight h session.” P ursuant t o resolut ion S-21/1, t he P resident of t he Council appoint ed t hree expert s t o the commission: William Schabas (Chair), Mary McGowan Davis and Doudou Diène.

2.

T he members of the commission formally began t heir work on 16 Sept ember 2014.

Following t he resignat ion of Professor Schabas on 2 February 2015, t he P resident of t he Council designat ed Just ice Davis as t he Chair. T he Office of t he Unit ed Nat ions High Commissioner for Human Right s (OHCHR) est ablished a secret ariat t o support t he commission. Not wit hst anding t he urgency expressed by t he Council t o dispat ch t he commission, t he secret ariat was not fully const it ut ed unt il t he end of November 2014.

3.

T he commission repeatedly request ed Israel t o cooperat e, including by grant ing it access t o Israel and t he Occupied P alest inian T errit ory, including t he West Bank, East Jerusalem and t he Gaza St rip. Regret t ably, Israel did not respond t o t hese request s.

Subsequent ly, t he commission learned from a press release that no such cooperat ion would be fort hcoming. The Government of Egypt, when request ed t o facilitate entry into t he Gaza St rip t hrough t he Rafah crossing, responded t hat it was not possible owing t o the prevailing securit y sit uat ion. T he commission wishes t o t hank t he Government of Jordan for facilit at ing it s t wo visit s t o Amman.

4.

T he commission received full cooperation from t he St ate of Palestine, including t he P ermanent Observer Mission of t he St at e of P alest ine t o t he Unit ed Nat ions Office at Geneva. It met with representatives of P alest inian minist ries in Amman, who provided a range of document s. The commission also spoke t o members of t he aut horit ies in Gaza, who submit t ed several writ t en report s t o t he commission.

5.

T he commission addressed t o the Government of Israel and t he Government of t he St at e of P alest ine a list of quest ions relat ing t o specific incident s and legal and policy issues. A comparable list of quest ions was also sent to Hamas. Only t he St at e of P alest ine responded t o t he request s.

II.

Mandate and methodology 6.

T he commission interpreted its mandate as requiring it to examine alleged violations of int ernational human rights law and int ernational humanitarian law occurring bet ween 13 June and 26 August 2014 across t he Occupied Palestinian Territory, in part icular in Gaza, and in Israel, and t o determine whet her such violat ions had been commit t ed. I t examined exist ing account abilit y mechanisms and t heir effect iveness, and t he immediat e and cont inuing impact of t he milit ary operat ions on t he affect ed populat ions and t heir enjoyment of human rights. The commission considered t hat t he vict ims and t heir human right s were at t he core of it s mandat e. It s act ivit ies were t hus informed by t he wish t o

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ensure t hat the voices of all victims are heard, and that the commission’s recommendat ions will st rengt hen t he prot ect ion of t he civilian populat ion in t he Occup ied P alest inian T errit ory and in Israel.

7.

T he normative framework for the commission was int ernat ional law, in part icular int ernational human rights law and internat ional humanit arian law and, where applicable, int ernat ional criminal law.

8.

T he commission is grat eful t o t he many vict ims and wit nesses who shared t heir experiences and ot her relevant information. The fact that, despit e its repeat ed request s, t he commission was not granted access t o the Occupied Palestinian Territory and Israel posed a challenge for conduct ing int erviews in person wit h vict ims and wit nesses and made viewing t he sit es where violations were alleged t o have been committed impossible. Owing t o t he restrictions on movement preventing vict ims and wit nesses from leaving Gaza , t he commission obt ained first -hand t est imony by means of int erviews conduct ed via Skype, videoconference and t elephone. It conduct ed confident ial int erviews wit h vict ims and wit nesses from the West Bank in Jordan (in November 2014 and January 2015) and wit h vict ims and wit nesses from Israel in Geneva (in January 2015). In Oct ober and December 2014, t he commission called for written submissions and at the end of January, the deadline for receiving t hem was extended t o 15 February 2015. Notwithstanding t his deadline, t he commission cont inued t o consider submissions unt il t he finalizat ion of t he report .

9.

T he commission is grat eful for t he valuable cont ribut ion made t o it s work by OHCHR, United Nations agencies and programmes, non-government al organizat ions and expert s. It t hanks t hose non-government al organizat ions, including human right s organizat ions, who work t irelessly t o document individual cases of alleged violat ions of int ernational human rights law and internat ional humanit arian law in t he region for t heir invaluable support . It notes that a number of Israeli non-government al organizat ions were reluct ant to cooperate wit h t he Commission of Inquiry, fearing in some cases t hat t here could be negat ive repercussions on t heir work. In t he case of some P alest inian nongovernment al organizations, the decision to cooperate came at an ext remely lat e st age of t he commission’s work. Some sources request ed t hat t heir submissions be t reat ed confident ially for fear of t he possible consequences of t est ifying bef ore t he commission, including for t heir safety. Primary responsibility for protecting victims, witnesses and ot her persons cooperat ing wit h t he commission rest s wit h t heir St at es of residence and nat ionalit y. 1 10.

T he commission considered holding public hearings t o offer wit nesses and vict ims from bot h sides t he opportunity to speak directly to the international community. However, t his was not feasible in t he t imeframe accorded t o t he commission. Given t he delays in set t ing up t he Secret ariat , t he lack of access t o Gaza, Israel and t he West Bank, t he obst acles t o freedom of movement for people in Gaza, and t he import ance of priorit izing t he document ation of possible violat ions, t he commission ult imat ely decided t o focus on conduct ing individual meet ings and int erviews wit h vict ims and wit nesses and issuing a public call for submissions. T he commission hopes to event ually make public as much of t he mat erial received as confident ialit y permit s.

11.

In order t o document specific violations against children and t he impact of t he war on children, t he commission int erviewed represent at ives of local and int ernat ional non government al organizations and Unit ed Nat ions agencies working on children’s right s in Gaza, Israel and t he West Bank. T he commission also hear d from medical doct ors who

1

4

Due to protection concerns, throughout this report witness testimony is referred to by using a witness number.

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worked in hospit als in Gaza and t he West Bank during last summer’s host ilit ies, who described t heir impact on children’s healt h.

12.

Wit h a view t o gat hering information on the impact of the 2014 hostilities on women and girls, t he commission interviewed members of internat ional and local women’s right s organizat ions who worked directly with women in Gaza during t he hostilit ies. In addit ion, local organizat ions submit t ed informat ion and a large number of signed and verified affidavit s by female vict ims/wit nesses in t he Gaza St rip and t he West Bank t o t he commission. T he commission also int erviewed Israeli women.

13.

Given it s rest ricted access, its limited resources and t he short t ime frame available for it s inquiry, t he commission select ed incident s on t he basis of cert ain crit eria, in part icular, the gravity of the allegations of violations of international humanit arian law and int ernat ional human right s law; t heir significance in demonst rat ing pat t erns of alleged violat ions; access t o vict ims, wit nesses and support ing evidence; and t he geographic locat ion of t he incident .

A.

Assessment of information and standard of proof 14.

T he commission and it s secretariat conduct ed more than 280 interviews wit h victims and wit nesses and received more t han 500 writ t en submissions and ot her document at ion from a wide range of sources, including eyewit nesses, affidavit s, medical report s, expert weapons analyses, sat ellite imagery, video film foot age and ot her phot ographic evidence from incident sit es and injury document at ion, as well as writ t en submissions, including expert legal opinions. It reviewed information publicly available, including t hat on official websit es of t he Government of Israel.

15.

T he commission used t he t ot alit y of t his informat ion in making it s assessment s, while carefully considering t he credibilit y and reliabilit y of sources. It gave part icular weight t o first-hand testimonies, recognizing t he limitations resulting from the fact that t he int erviews were done remot ely, t he lapse in t ime since t he incident s occurred, and t he possibilit y of reprisals. In many cases, as a result of t he const raint s imposed on t he commission, in particular in terms of access, it was not possible to establish wit h cert aint y t he fact ual circumst ances of a given incident .

16.

T he commission decided t o use t he overall fat alit y figures provided by t he UN P rotection Cluster, which are based on a variety of different sources. The methodology has been explained as follows: “T he P rot ect ion Clust er is t he mechanism for coordinat ing humanit arian act ion by humanit arian organizat ions (UN and non -UN) working in t he prot ection sector. OHCHR leads t he Prot ect ion Clust er in t he OP T . OHCHR compiled figures on fat alities in its capacity as leader of t he P rot ect ion Clust er. T he met hodology used involves t he compilat ion of init ial report s of fat alit ies from t he media and ot her sources which are t hen crosschecked and verified in collaborat ion wit h a number of int ernat ional, P alest inian and Israeli part ner organizat ions. Where available, each individual’s name, age, sex and place of deat h is det ermined, as well as t heir st at us as a civilian or combatant where possible. Multiple sources are cross-referenced, not only from media and various human right s organizat ions, but also informat ion released by t he IDF and by t he P alestinian armed groups regarding t he ident ity of combatants. Information from t he Minist ry of Healt h in Gaza is one, but not an exclusive, source of informat ion.

Verificat ion of t he informat ion collect ed is cont inuing. Figures are published on t he websit e of OCHA on behalf of t he P rot ect ion Clust er.” 2 While t he casualt y figures

2

A/HRC/28/80/Add.1, para.24, footnote 43.

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gat hered by t he Unit ed Nat ions, Israel, t he St at e of P alest ine and non -government al organizat ions differ, regardless of the exact proportion of civilians to combat ant s, t he high incidence of loss of human life and injury during t he 2014 host ilit ies is heart breaking.

17.

In t erms of fatality and casualt y figures related to specific incidents, the commission, whenever possible, cross-checked informat ion from wit nesses against list s provided by different sources. However, in a number of cases, many members of the same family, often wit h similar names and children of more or less t he same age were among t he vict ims, which somet imes made it difficult to det ermine how many individuals act ually were killed.

In addit ion, divergent figures may have emerged because some people who were seriously injured during at t acks died soon aft erwards, eit her while being t ransport ed t o or in a hospit al or clinic.

18.

In t erms of determining which weapons were used in t he various incident s, t he lack of cooperat ion by Israel made viewing t he scenes of incident s and gat hering first hand observat ion of damage and ot her related evidence - key to assessing t he veracity of wit ness t est imonies – impossible. The commission was t herefore constrained t o gather and evaluate wit ness st at ement s and st udy phot ographic evidence showing injuries, damage and ordnance remnants that were provided by t hird party sources. In addit ion, t he commission reviewed open source information as to t he weapons resources; t heir delivery means; and t heir effect s. All available mat erials relat ing t o specific incident s were reviewed by a milit ary expert – who has had ext ensive command and operat ional experience during t he course of a long milit ary career – to determine what kinds of weapons were most likely t o have been used and whet her t hey may reasonably have been employed given t he specific t act ical sit uat ion.

19.

Consist ent wit h t he pract ice of ot her Unit ed Nat ions fact -finding bodies, 3 t he commission employed a “reasonable ground” st andard in it s assessment of incident s invest igat ed and patterns found t o have occurred. This means that t he commission, on t he basis of reliable and consist ent information, was sat isfied that “a reasonable and ordinarily prudent person would have reason t o believe that such an incident or pattern of conduct had occurred.”4 T he assessment in each case considered t wo element s: 1) t he reliabilit y and credibilit y of t he source, t aking int o account it s nat ure and object ivit y, t he qualit y of previously submit t ed information and t he met hodology ut ilized by t he source, and 2) t he validit y and veracit y of t he informat ion it self on t he basis of cross-checking wit ness t est imony against photographic evidence and other materials relating t o the same incident s provided by ot her sources.

20.

T he fact ual conclusions formed t he basis for t he legal analysis of t he individual incident s and t heir qualification as possible violations of international human right s law or humanit arian law. As t he “reasonable ground” t hreshold is lower than the st andard required in criminal t rials, t he commission does not make any conclusions wit h regard t o t he responsibilit y of specific individuals for alleged violat ions of int ernat ional law.

21.

Finally, t he commission notes that “[u]nder international humanitarian law and t he Rome St at ut e, t he deat h of civilians during an armed conflict , no mat t er how grave and regret t able, does not in itself constitut e a war crime. International humanitarian law and t he Rome St at ut e permit belligerent s t o carry out proport ionat e at t acks against milit ary object ives, even when it is known t hat some civilian deat hs or injuries will occur. A crime occurs if t here is an intentional attack directed against civilians […] or an attack is launched 3

4

6

United Nations Office of the High Commissioner for Human Rights (OHCHR): Commissions of Inquiry and Fact-finding-missions on international human rights and humanitarian law. Guidance and Practice. 2015 at http://www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf See also A/HRC/25/63, para.22

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on a milit ary object ive in t he knowledge t hat t he incident al civilian injuries would be clearly excessive in relat ion t o t he ant icipat ed milit ary advant age […].” 5

III.

Legal Framework 22. T he mandate of the commission is to investigate all alleged violat ions of int ernat ional humanit arian law and int ernational human rights law, in the occupied Palestinian t errit ory, and t o est ablish fact s and circumst ances of such violat ions and examine whet her crimes were perpet rated. Consequent ly, t he work of t he commission was carried out wit hin t he framework of int ernat ional humanit arian law, int ernat ional human right s law and int ernat ional criminal law.

A.

International humanitarian law 23.

In sit uat ions of armed conflict, all parties t o the conflict are bound by t he applicable rules of int ernat ional humanit arian law, whet her cust omary or t reat y based.

24.

Wit h regard t o treat y law, Israel is a part y t o t he four Geneva Convent ions of 12 August 1949 and it s Addit ional P rot ocol III, relat ing t o t he adopt ion of a dist inct ive emblem, but has not ratified Addit ional Protocols I and II on t he prot ect ion of vict ims of int ernational armed conflicts and non-international armed conflicts. Israel is also a part y t o t he Convention prohibiting Certain Conventional Weapons of 1980 and its P rot ocols I and IV on non-det ect able fragment s and blinding laser weapons, respect ively, and amended P rotocol II prohibiting, mines, booby-traps and other devices. While Israel has not rat ified t he Addit ional Protocols I and II to the 1949 Geneva Conventions, it accept s t hat some of t heir provisions accurately reflect cust omary international law. 6 While Israel is not a part y t o t he Fourth Hague Convention on the War on Land and it s annexed Regulat ions of 1907, t he Government of Israel has recognized t hat t he Regulat ions reflect cust omary int ernat ional law. 7 25.

T he 1907 Hague Regulat ions, along wit h t he Fourt h Geneva Convent ion of 1949 and cust omary int ernat ional humanit arian law cont ain t he rules applicable t o Israel’s occupat ion of the West Bank, including East Jerusalem and t he Gaza st rip. Israel has st at ed t hat while it de facto applies t he humanitarian provisions of t he Fourth Geneva Convent ion of 1949, it does not recognize its de jure applicat ion to the occupied Palestinian t errit ory. 8 T his position was rejected by t he Int ernat ional Court of Just ice, which confirmed t he de jure applicabilit y of the Fourth Geneva Convention to the Occupied P alestinian Territ ory. 9

5

6

7

8

9

International Criminal Court, OTP response to communications received concerning Iraq, 9 February 2006.

Israel, M inistry of Foreign Affairs, IDF Conduct During the 2014 Gaza Conflict, p. 2. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015.

Ibid.p.2. This is also the conclusion of the International Court of Justice in the Advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 9 July 2004, I.C.J. Reports 2004, para. 89.

M eir Shamgar, The Observance of International Law in the Administered Territories, Israel Yearbook on Human Rights, vol. 1, 1971. When this article was published the author was Attorney General of Israel.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, p ara. 101

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26.

T he Occupied P alestinian Territory is comprised of the West Bank , including East Jerusalem and t he Gaza st rip. The Government of Israel adopt s t he posit ion t hat since it wit hdrew it s t roops and settlers from Gaza in 2005 during t he “disengagement ”, it no longer has effect ive control over what happens in Gaza and t hus can no longer be considered as an occupying power under int ernat ional law. 10 T he commission agrees t hat t he exercise of ‘effect ive control’ test is the correct standard t o use in det ermining whet her a St at e is t he occupying power over a given t erritory, but notes that t he cont inuous presence of soldiers on t he ground is only one crit erion t o be used in det ermining effect ive cont rol.

27.

Int ernat ional law does not require t he cont inuous presence of t roops of t he occupying forces in all areas of a t errit ory, in order for it t o be considered as being occupied. In t he Naletelic case, t he ICT Y held t hat t he law of occupat ion also applies in areas where a st at e possesses t he “capacity to send t roops wit hin a reasonable time to make it s power felt.” 11 The size of Gaza and t he fact that it is almost complet ely surrounded by Israel facilit at es t he abilit y for Israel t o make it s presence felt . 12 T his principle was confirmed by t he Unit ed St at es Milit ary T ribunal at Nuremberg which st at ed: It is clear that the German Armed Forces were able to maintain control of Greece and Yugoslavia until they evacuated them in the fall of 1944. Wh ile it is true that the partisans were able to control sections of these countries at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country.

The control of the resistance forces was temporary only and not such as would deprive the German Armed Forces of its status of an occupant. 13 28.

T his analysis also applies to the Occupied P alestinian Territory which is considered a single t errit orial unit by t he int ernat ional communit y, 14 and by Israel in t he Int erim Agreement on t he West Bank and Gaza, which recognized t he West Bank and Gaza as a single t errit orial unit . 15 29.

In addit ion t o its capacity to send t roops to make its presence felt, Israel continues t o exercise effective control of the Gaza St rip through other means. According t o t he Int erim agreement on t he West Bank and t he Gaza St rip, Israel maint ains t he cont rol of Gaza’s airspace and marit ime areas, and any act ivit y in t hese areas is subject t o t he approval of Israel. The facts since the 2005 disengagement, among t hem t he cont inuous pat rolling of t he t erritorial sea adjacent to Gaza by t he Israeli Navy and const ant surveillance flight s of IDF aircraft, in particular remotely pilot ed aircraft , demonst rat e t he cont inued exclusive cont rol by Israel of Gaza’s airspace and marit ime areas which -- wit h t he except ion of limit ed fishing activities -- Palestinians are not allowed t o use. Since 2000, the IDF has also cont inuously enforced a no-go zone of varying widt h inside Gaza along t he Green Line fence. Even in periods during which no act ive host ilit ies are occurring, t he IDF regularly 10

11 12

13

14

15

8

Israel, M inistry of Foreign Affairs, The Background to the 2014 Gaza Conflict, p. 8. http://mfa.gov.il/M FA/ForeignPolicy /IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015 ICTY, Prosecutor v. Naletilic and Martinovic, IT-98-34-T, Judgement of 31 M arch 2003, para. 217 Tristan Ferraro, Determining the beginning and end of an occupation under international humanitarian law, International Review of the Red Cross, Vol. 95, Number 885, 2012 : “any geographical contiguity existing between the belligerent states might play an important role in facilitating the remote exercise of effective control, for instance by permitting an Occupying Power that has relocated its troops outside the territory to make its authority felt within reasonable time.”

The Hostages Trial, Trial of Wilhelm List and others, United States M ilitary Trial at Nuremberg, Law Reports of the Trials of War Criminals, Volume VIII, p. 56 UNGA 64/94, 10 December 2009, which calls on Israel to respect the territorial unity of the Occupied Palestinian Territory, and refers to Gaza as part of that territory.

Article XI (1) of the Interim Agreement.

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conduct s operat ions in t hat zone, 16 such as land levelling. Israel regulat es t he local monet ary market, which is based on t he Israeli currency and has cont rols on t he cust om dut ies. 17 Under t he Gaza Reconst ruction Mechanism, Israel continues t o exert a high degree of cont rol over t he const ruct ion indust ry in Gaza. Drawings of large scale public and privat e sector projects, as well as t he planned quant ities of const ruct ion mat erial required, must be approved by t he Government of Israel. 18 Israel also cont rols t he P alest inian populat ion registry, which is common to bot h the West Bank and Gaza, and P alestinian ID cards can only be issued or modified wit h Israeli approval. 19 Israel also regulat es all crossings allowing access t o and from Gaza. While it is t rue t hat t he Rafah crossing is governed by Egypt , Israel st ill exercises a large degree of cont rol, as only P alest inians holding passport s are allowed t o cross, and passports can only be issued t o people featuring on t he Israeli generat ed populat ion regist ry.

30.

T he commission concludes t hat Israel has maintained effect ive cont rol of t he Gaza St rip wit hin the meaning of Article 42 of the 1907 Hague Regulat ions. T he assessment that Gaza cont inues t o be occupied by Israel is shared by t he int ernat ional communit y as art iculat ed by t he General Assembly and has been reaffirmed by t he I nt ernat ional Committee of the Red Cross (ICRC) and t he Prosecut or of the International Criminal Court (ICC). 20 31.

In view of t he 2005 disengagement , Israel’s obligat ions under occupat ion law are consist ent wit h the level of control it exercises,21 and the rules of treat y and cust omary law of occupat ion by which it is bound remain t hose that are relevant to the functions t hat Israel cont inues t o exercise as an occupying power. 22 32.

T he commission takes note that the St ate of Palest ine, on 2 April 2014, acceded t o t he four Geneva Conventions of 12 August 1949 and the Addit ional P rot ocols I and II on t he prot ect ion of vict ims of int ernat ional armed conflict s and non -int ernat ional armed conflict s and t he Fourt h Hague Convent ion on t he War on Land and it s annexed Regulat ions of 1907. In early January 2015 t he St at e of P alest ine acceded t o Addit ional P rot ocol III t o t he 1949 Geneva Convent ions; t o t he Convent ion prohibit ing Cert ain Convent ional Weapons of 1980 and it s P rot ocols I and III, and t o t he Convent ion on Clust er Munit ions of 2008.

33.

Israel and t he P alest inian armed groups t hat are part ies t o t he conflict are bound alike by t he relevant rules of cust omary international law. These rules are relevant bot h t o t he t reat ment of civilians and persons hors de combat as well as t o t he conduct of

16

17 18 19

20

21

22

For example the IDF conducted 80 operations in the no-go zone in 2013, OCHA, Update on the Access Restricted Areas in the Gaza Strip, 1 July to 31 December 2013, p. 4, available at http://www.globalprotectioncluster.org/_assets/files/field_protection_clusters/Occupied_Palestinian/fi les/oPt_PC_ARA_Up date_July-December_2013_EN.pdf A/HRC/12/48, para. 278.

UNSCO, Gaza Reconstruction Mechanism Fact Sheet, October 2014.

Gisha, The Population Registry, 14 November 2011, http://gisha.org/en-blog/2011/11/14/thepopulation-registry.

Peter M aurer, Challenges to international humanitarian law: Israel’s occupation policy, International Review of the Red Cross, Vol. 94, Number 888, p.1506; International Criminal Court, Office of the Prosecutor, Situation on Registered Vessels of the Comoros, Greece and Cambodia, 6 November 2014, Article 53 (1) Report, p. 17; General Assembly resolutions A/Res/64/92, A/Res/64/94, to be read jointly.

Peter M aurer, Challenges to international humanitarian law: Israel’s occupation policy, International Review of the Red Cross, Vol. 94, Number 888, p. 1508.

Tristan Ferraro, Determining the beginning and end of an occupation under international humanitarian law, International Review of the Red Cross, Vol. 95, Number 885, p. 158.

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host ilities. The commission recognizes t he complexit y of det ermining cust omary rules of int ernational law and t herefore referred t o analyses of cust om by int ernat ional t ribunals as well as t o t he St udy on Cust omary International Humanitarian Law, 23 the contents of which it considers as indicat ive of t he exist ence of cust omary norms. 24 34.

Wit h regard t o the conduct of hostilities, rules applicable t o t he conduct of t he IDF and P alest inian armed groups involved in t he host ilit ies can be found in cust omary int ernational law. The commission notes that there are very little subst antive differences in t his area of internat ional humanit arian law bet ween t he rules applicable in int ernat ional armed conflict and non-international armed conflict. In relat ion t o t he 2014 host ilit ies in Gaza bet ween P alestinian armed groups and t he IDF, Israel has noted t hat the classification of t he armed conflict as int ernat ional or non-int ernat ional is a mat t er of debat e. Israel furt her st ates that “under these circumstances Israel conduct ed it s military operations during t he 2014 Gaza conflict in accordance wit h t he rules of t he Law of Armed Conflict governing bot h int ernat ional and non-int ernat ional armed conflict s.” 25 35.

Wit h regard t o the treatment of civilians and persons hors de combat , in addit ion t o ot her applicable rules found in t he above-ment ioned t reat ies and in cust omary law, t he P alest inian armed groups t hat took part in the host ilit ies and Israel are bound alike by t he rules found in common article 3 of t he Geneva Convent ions. T he Int ernat ional Court of Just ice has held t hat , although common article 3 relat es t o “conflict s which are not of an int ernational character,” the rules contained in t his article reflect elementary considerat ions of humanit y, and apply equally t o int ernat ional and non -int ernat ional armed conflict . 26 36.

Finally, common Article 1 of the Four Geneva Convent ions of 1949, provides t hat all “High Cont racting Parties undert ake to respect and ensure respect” for t he four Geneva Convent ions in all circumstances. The International Court of Just ice, based on t his art icle and on t he general principles of humanit arian law, declared t hat St at es are under an obligat ion not t o encourage part ies t o a conflict t o act in violat ion of int ernat ional humanit arian law. 27 St ate practice since the adoption of t he Geneva Convent ions has also made clear t hat t he obligations of common Art icle 1 are not limit ed only t o t hose st at es

23

24

25

26

27

10

Jean M arie Henckaerts and Louise Doswal-Beck, Customary International Humanitarian Law, Cambridge, 2006. The rules and the updated related practice are now available on the ICRC Database on customary international humanitarian law, to which this report will refer to.

The Israeli High Court refers to the Study for the wording of customary norms, Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02, 11 December 2005, para 23.

Israel, M inistry of Foreign Affairs, The 2014 Gaza Conflict: Factual and Legal Aspects, IDF Conduct During the 2014 Gaza Conflict, p. 1. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015.

ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.

United States of America), I.C.J. Reports, 1986, p. 14, para 218.

ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v .

United States of America), I.C.J. Reports, 1986, p. 14, para 220. In this case, owing to the fact that it was dealing with allegations of support by the United States to armed groups in Nicaragua and that Common Article 3 was applicable in the armed conflict in Nicaragua, the Court concluded: “The Court considers that there is an obligation on the United States Government, in the terms of Article 1 of the Geneva Conventions, to "respect" the Conventions and even "to ensure respect" for them "in al1 circumstances", since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression. The United States is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions…”

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involved in an armed conflict; 28 rather all St ates “must exert t heir influence, t o t he degree possible, t o st op violat ions of int ernat ional humanit arian law.” 29 37.

Main principles on t he conduct of host ilit ies: 





28

29 30

31

32

33

T he principle of dist inction requires t hat parties t o a conflict dist inguish bet ween civilians and civilian object s on t he one hand, and combat ant s 30 and milit ary object ives on t he other. Attacks may only be direct ed against t he lat t er. In order for an object or building t o be considered a m ilit ary object ive it must meet t wo cumulat ive criteria namely t hat (1) by it s “nat ure, locat ion, purpose or use [it ] make[s] an effective contribut ion to military action” and, (2) the object’s “tot al or part ial dest ruct ion, capt ure or neut ralizat ion in t he circumst ances ruling at t he t ime, offer[s] a definit e milit ary advant age.” 31 T he principle of proport ionalit y prohibit s at t acks t hat are expect ed t o cause incident al loss of life or injury t o civilians or damage t o civilian object s, which would be excessive in relat ion t o t he concret e and direct milit ary advant age ant icipat ed.32 T he principle of precaut ions in at t ack requires all part ies t o t ake all feasible measures t o avoid and in any event t o minimize incident al loss of civilian life, injury t o civilians and damage t o civilian objects. This includes: verifying t hat t he t arget is a milit ary object ive and t hat t he at t ack respect s t he proport ionalit y requirement ; choosing weapons and t iming for the attack wit h a view t o avoiding or minimizing civilian casualt ies; issuing advance warnings when feasible; and suspending an at t ack if it becomes apparent that it does not respect the principle of proport ionalit y. 33

S/Res/681; General Assembly resolution A/Res/58/97; International Conference for the Protection of War Victims, Final Declaration, Geneva, 1993. ICRC, Commentary on the Third Geneva Convention of 1949, p.18: “The proper working of the system of protection provided by the Convention demands in fact that the States which are parties to it should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that it is respected universally.”

ICRC, Database on customary international humanitarian law, Rule 144.

For the purposes of distinction, the term “combatants” includes members of the armed forces and members of organized armed groups with a continuous combat function. In the context of this report, when the terms ‘members of armed groups’ or ‘members of Palestinian armed groups’ are used it is meant to include only those with a continuous combat function. The Commission adopts the approach of the ICRC “Interpretative guidance on the notion of direct participation in hostilities under international humanitarian law.” The Commission notes that there has been criticism of the concept of ‘continuous combat function.’ Some have criticized the concept, for broadening the definition of direct participation in hostilities therefore raising the risk of erroneous targeting. Others maintain that it is too restrictive and creates an imbalance between members of the armed forces of a state and members of an organized armed group. Civilians, who are not members of organized armed groups with a continuous combat function, may lose their protection from attack if they directly participate in the hostilities but only for the duration of that participation (Article 13(3) Additional Protocol II and 51(3) of Additional Protocol I).

Article 52(2) Additional Protocol I. ICRC, Database on customary international humanitarian law, Rule 9 Articles 51(5) and 57(2) Additional Protocol I. ICRC, Database on customary international humanitarian law, Rule 14 Article 57 Additional Protocol I. ICRC, Database on customary international humanitarian law, Rules 15-21.

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B.

International human rights law 38.

Israel is a state party to seven of the core human rights treaties: the International Convention on the Elimination of All Forms of Racial Discrimin ation, the International Covenant on Civil and Political Rights , the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of Persons with Disabilities, and the Convention on the Rights of the Child. It has also ratified the Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict, and on the Rights of the Child on the sale of children, child prostitution and child pornography.

39.

Israel has maintained its position that it does not have human rights obligations in the Occupied Palestinian Territory based on two main arguments: (1) that the treaties are bound to the territory of the State party and do not apply t o the extra-territorial actions of a State,34 and (2) that the applicability of international human rights law and international humanitarian law are mutually exclusive.35 The commission notes , however, that Israel has accepted to exercise its powers and res ponsibilities in the occupied territory “with due regard to internationally-accepted norms and principles of human rights and the rule of law.”36 40.

T he commission adopts the widely accepted interpretation that a sit uat ion of armed conflict or occupat ion does not release a St at e from it s human right s obligat ions. T he Int ernat ional Court of Just ice, in Nuclear Weapons Advisory Opinion, held t hat t he prot ection of the Internat ional Covenant for Civil and P olit ical Right s does not cease in sit uat ions of armed conflict, except if derogat ed from37 in conformity wit h art icle 4 of t he Covenant . This position was confirmed by t he ICJ in the Advisory Opinion on the Wall, in which t he Court considered t hat “the protection offered by human right s convent ions does not cease in case of armed conflict .” 38 41.

Wit h regard t o t he human right s obligat ions of Israel in t he Occupied P alest inian T errit ory, Israel is bound by t hose human right s t reat ies which it rat ified. T he ICJ concluded t hat the International Covenant on Civil and P olit ical Right s, t he Int ernat ional Covenant on Economic, Social and Cult ural Rights and t he Convention on the Rights of the Child are applicable. 39 The ICJ also noted t hat Israel’s obligat ions under ICESCR include “an obligat ion not to raise any obst acle to the exercise of such right s in t hose fields where compet ence has been t ransferred t o P alest inian aut horit ies”. 40 T he posit ion of Unit ed Nat ions human rights treaty bodies corresponds t o t hat of t he ICJ, namely t hat as a St at e part y to international human rights instruments, Israel cont inues t o bear responsibilit y for 34 35

36 37

38

39

40

12

CCPR/C/ISR/4, para. 48 In its report to the Human Rights Council, Israel stated: “It is Israel’s view that these two systems-oflaw, which are codified in separate instruments, remain distinct and apply in different circumstances.”

CCPR/C/ISR/4, para. 47. See also, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, para. 102.

Article XIV, Agreement on the Gaza Strip and the Jericho Area, 4 M ay 1994.

ICJ, Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C.J Reports 1996 (I), para. 24.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, para. 106 Legal Consequences of the Construction of a Wall in the Occupied Palestinian territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, paras. 111-113.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, paras. 111-113.

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implementing it s human rights treaty obligations in the Occupied Palestinian T errit ory, t o t he ext ent that it continues t o exercise jurisdict ion in t hose t errit ories. 41 T he commission not es t hat Israel has, upon ratification of the International Covenant on Civil and P olit ical Right s, according t o article 4, derogat ed from it s obligat ions under art icle 9 based on t he St at e of Emergency proclaimed in 1948, which remains in force.

42.

Art icle 1 common to the International Covenant on Civil and P olit ical Right s, and t he International Covenant on Economic, Social and Cult ural Rights, enshrines the right of all peoples t o self-determinat ion and est ablishes an obligat ion for St at es part ies t o t hese human right s conventions to promote and respect the realization of that right, in conformity wit h t he Charter of the United Nations. With regard t o the Occupied P alestinian T errit ory, t he int ernational court of just ice observed t hat the “existence of a ‘Palestinian people’ is no longer in issue” and concluded t hat the right to self-determination is part of the ‘legit imat e right s’ of t he P alest inian people. 42 43.

On 2 April 2014, the St ate of P alest ine acceded t o t he Int ernat ional Covenant on Economic, Social and Cult ural Right s, t he Int ernat ional Covenant on Civil and P olit ical Right s, t he Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, t he Convent ion on t he Right s of P ersons wit h Disabilit ies, t he Int ernat ional Convent ion on t he Eliminat ion of All Forms of Racial Discrimination, and t he Convention against Torture and Other Cruel Inhuman or Degrading T reatment or Punishment. On 7 April 2014, the St ate of Palestine acceded t o t he Opt ional P rotocol to the Convention on the Rights of t he Child on t he Involvement of Children in armed conflict. Owing to the on-going Israeli occupation of the West Bank, including East Jerusalem and t he Gaza st rip, the extent of the obligat ions of t he St at e of P alest ine under t he preceding inst ruments needs t o be clarified by t he human right s bodies est ablished t o monit or compliance with these specific treaties. The physical, legal and political context of t he St at e of Palestine, including t he fact that Palestinian t erritory cont inues t o be occupied, may be of relevance. In t he past , t reat y bodies have recognized t he obst acles faced by a St at e P arty in implementing its obligat ions, when it does not have effect ive cont rol over part s of it s t errit ory. 43 44.

In t he past , the Palest inian Aut horit y, which exercises it s powers in t he Occupied P alest inian Territory pursuant to the various Israeli-Palestinian agreement s, 44 has declared it s commit ment t o respect int ernat ional human r ight s law in a number of public

41

42

43

44

CCPR/C/ISR/CO/4. See also CCPR/C/ISR/CO/3: “The Committee therefore reiterates and underscores that, contrary to the State party’s position, in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the occupied territories, including in the Gaza Strip, with regard to all conduct by the State party’s authorities or agents in those territories affecting the enjoyment of rights enshrined in the Covenant.”

Legal Consequences of the Construction of a Wall in the Occupied Palestinian territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, para. 118 For instance, the Committee on the Rights of the Child concluded in the case of Cyprus: “The Committee notes that the State party, as a consequence of events which occurred in 1974 and which resulted in the occupation of part of the territory of Cyprus, is not in a position to exercise control over all of its territory and consequently cannot ensure the application of the Convention in areas not under its control. The fact that no information on children living in the occupied territories is available is a matter of concern to the Committee” CRC/C/15/Add.59 Agreement on the Gaza Strip and the Jericho Area, M ay 4, 1994, Agreement on the Preparatory Transfer of Powers and Responsibilities (Israel-PLO), August 29, 1994, Interim Agreement between Israel and the Palestinians, September 28, 1995.

13

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undert akings. 45 T hese undert akings by t he Palestinian Authority, the Palestinian Liberation Organisat ion and t he P alest inian Legislat ive Council (P LC) have included assurances, decrees and declarat ions and various agreements under t he Oslo Accords signed wit h Israel, which st at ed t hat bot h part ies would exercise t heir powers and responsibilit ies wit h “due regard t o int ernat ionally accept ed norms and principles of human right s and t he rule of law”. 46 T he Palestinian Basic Law47 also cont ains a number of art icles prot ect ing human right s as well as a commit ment to abide by major human rights instruments 48 The setting up of t he P alest inian Independent Commission for Cit izens’ Right s in 1993 t hrough a P resident ial Decree also indicates a commitment by the Palest inian Aut horit y t o be bound by human right s. 49 45.

Wit h respect to t he aut horities in Gaza, it is worth recalling t hat non-St ate actors that exercise government -like funct ions and cont rol over a t errit ory are obliged t o respect human right s norms when their conduct affect s t he human right s of t he individuals under t heir control.50 Moreover, Hamas has indicated t hat it “is det ermined (...) t o promot e t he rule of law, t he respect for the judiciary, t he separat ion of powers, t he respect for human

45

46

47 48

49

50

14

PLO chairman Yasser Arafat repeatedly stated that he and his Government were committed to respecting to all international human rights standards, for instance, to representatives of Amnesty International on 2 Oct 1993 and 7 Feb 1996.

For instance through article XIX of the Protocol Concerning Redeployment of the Interim Agreement of 28 September 1995, the PA also undertook that its police would exercise powers and responsibilities with due regard to internationally accepted human rights and the rule of law, and that it would be guided by the need to protect the public, respect human dignity, and avoid harassment. In addition, the PA has undertaken to respect specific human rights obligations in the context of its membership of the Euro M editerranean partnership, which was established in November 1995 with the adoption of the Barcelona Declaration and which contains a human rights component, stating that members should respect fundamental human rights and freedom, and act in accordance with the United Nations Charter and the UDHR, as well as with the other obligations under international law, in particular those arising out of regional and international instruments to which they are party (Barcelona Declaration, 27-28 November 1995; http://ec.europa.eu/external_relations/euromed/bd.htm). http://www.palestinianbasiclaw.org/2002-basic-law.

Article 10 of the Basic Law states that “basic human rights and liberties shall be protected and respected” and that the “Palestinian National Authority shall work wit hout delay to become a party to regional and international covenants and declarations that protect human rights”. Its title two on “public rights and liberties” (articles 9 to 33) guarantee a range of civil rights to all persons (such as freedom from unlawful arrest, the right to fair trial, prohibition of torture and collective punishment, freedom of expression, freedom of religion, etc.) as well as the main economic and social rights.

Furthermore, article 31 of the Palestinian Basic Law provides for the establishment by law of an independent commission for human rights. In M ay 2005, PICCR submitted before the PLC a draft law for discussion and approval. This draft law confirms PICCR as the National Human Rights Commission in Palestine with Ombudsman function at its core.

A/HRC/10/22, para. 21. Also by way of example, in the joint report on Lebanon and Israel, a group of four 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,” Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt; the Representative of the Secretary-General on human rights of internally displaced persons, Walter Kälin; and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, M iloon Kothari,(A/HRC/2/7), para. 19.

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right s, t he equalit y among citizens; to fight all forms of discriminat ion; t o prot ect public libert ies, including t he freedom of the press and opinion ...”. 51 Hamas has also confirmed its commit ment to “respect (...) public libert ies; to strengthen the establishment of democracy; t o prot ect human right s (...); and it s respect for int ernat ional law and int ernat ional humanit arian law insofar as t hey conform wit h our charact er, cust oms and original t radit ions”. 52 46.

T he commission also recalls t he Basic P rinciples and Guidelines on t he Right t o a Remedy and Reparat ion for Vict ims of Gross Violat ions of Int ernat ional Human Right s Law and Serious Violat ions of International Humanitarian Law of 2005. 53 While t hey are not a binding int ernational instrum ent, the fact that they were adopt ed by General Assembly resolut ion 60/147 of 16 December 2005 and have since t hen been referred t o by mult iple int ernational, regional and national bodies 54 shows t hat they enjoy far-reaching support. The commission in part icular st resses t he provision t hat “vict ims and t heir represent at ives should be ent it led t o seek and obt ain informat ion on t he causes leading t o t heir vict imizat ion and on t he causes and condit ions pert aining t o t he gross violat ions of int ernational human rights law and serious violations of international humanitarian law and t o learn t he t rut h in regard t o t hese violat ions.”

C.

International criminal law 47.

An int ernat ional crime has been defined as an “act univ ersally recognized as criminal, which is considered a grave mat t er of int ernat ional concern and for some valid reason cannot be left within the exclusive jurisdict ion of the st at e t hat would have cont rol over it in regular circumstances.” 55 International crimes can be found in t reaty as well as in cust omary law. Int ernat ional crimes have exist ed for several cent uries; however, int ernat ional criminal law has, during t he t went iet h cent ury, great ly evolved and t oday addresses mainly t he issue of individual criminal responsibilit y for a number of serious violat ions of international humanitarian law and int ernational human rights law. T herefore in recent decades, int ernat ional criminal t ribunals have dealt mainly wit h war crimes, crimes against humanit y and t he crime of genocide.

48.

T he four Geneva Conventions of 1949 est ablish a syst em t o repress t hrough penal sanct ions a number of violat ions of t he Geneva Convent ions. Under art icle 146 of t he Geneva Convent ion IV, the High Cont ract ing P art ies have t he obligat ion t o enact penal sanct ions for t hese part icular violat ions, described as grave breaches, search for t hose “alleged t o have committed, or to have ordered t o be commit t ed” t hese act s and prosecut e t hem “before their own court s,” or hand over such persons t o anot her St at e. Art icle 147 defines grave breaches as:

51

52

53

54 55

Speech delivered by Prime M inister Ismail Haniya at the conference organized by the PCHR on “The New Government and the Agenda for Human Rights”. Gaza, June 2006.

Text of the National Unity Government programme delivered by then Prime M inister Ismail Haniya before the Palestinian Legislative Council, 17 M arch 2007. http://www.islamicnews.net/Document/ShowDoc09.asp?DocID=91477&TypeID=9&TabIndex=2 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 adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005. At: http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx See e.g.: A/HRC/24/42 A/HRC/22/52; also the Turkel Commission: p. 106.

The Hostages Trial, Trial of Wilhelm List and others, United States M ilitary Trial at Nuremberg, Law Reports of the Trials of War Criminals, Volume VIII, p. 54

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"…..those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regu lar 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.”

49.

In addit ion t o t he grave breaches of t he Geneva Convent ions, war crimes include ot her serious violations of the laws and cust oms of war applicable in both international and non-int ernational armed conflict. These include, inter alia, violations of Common Article 3 of t he Four Geneva Convent ions, 56 as well t he grave breaches cont ained in Addit ional P rotocol I to the 1949 Geneva Convent ions. T he war crimes defined as grave breaches in t he 1949 Geneva Conventions as well as t he vast majority of other serious violations of t he laws and cust oms of war are found in t he Rome St at ut e of t he Int ernat ional Criminal Court . 57 50.

War crimes include crimes related t o t he violat ions of t he rules on t he conduct of host ilities. These include, 58 inter alia, directing at tacks against civilians or civilian object s; launching an at t ack with the knowledge t hat incident al loss of life and damage t o civilian object s would be excessive t o t he concret e and direct milit ary advant age; launching indiscriminat e at t acks; t he use of human shields; killing or wounding by resort ing t o perfidy; making medical unit s t he object of an at t ack; making improper use of t he dist inct ive emblems of the Geneva Conventions; declaring t hat no quarter will be given; the use of st arvation as a met hod of warfare; act s whose primary purpose is t o spread t error amongst t he civilian populat ion; and using a prohibit ed weapon. War crimes are also relat ed t o crimes against protected persons and propert y, which include, inter alia, murder or wilful killing; t orture or inhuman treatment ; ext ensive dest ruct ion or approp riat ion of propert y not just ified by milit ary necessit y and carried out unlawfully and want only; collect ive punishment s; and t he t aking of host ages.

51.

Individuals are criminally responsible if t hey commit , at t empt t o commit , plan, order, or inst igat e war crimes. P ersons are also liable for a crime if t hey aid, abet or ot herwise assist or facilitate the commission of a crime. 59 A military commander or another superior is not only individually responsible for crimes he may have ordered or inst igat ed, but also for t hose crimes commit t ed by forces under his command or effect ive cont rol, when he knew or should have known t hat such act s were being or were about t o be

56

57 58

59

16

Article 4 ICTR Statute, article 8 Statute of the ICC, article 3 Statute of the Special Court for Sierra Leone. See also ICTY, Prosecutor v. Dusko Tadic, Decision of 2 October 1995, IT-94-1-AR72.

Article 8(2).

While most of the acts described in the paragraph amount to war crimes in both international and noninternational armed conflicts, there are some distinctions depending on the classification of the conflict (see for example article 8 of the Rome Statute of the ICC). In addition, in some cases the terminology used to describe an identical act will vary due to the classification of the conflict (for example ‘murder’ and ‘wilful killing’).

Article 25 Rome Statue of the ICC, article 7(1) of the Statute of the ICTY and article 6(1) of the Statute of the ICTR. See also ICRC, Database on Customary International Humanitarian Law, Rule 151.

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commit t ed and failed t o t ake all necessary measures t o prevent , punish or report t he perpet rat ors of t hese act s. 60 52.

T he St at e of Palestine acceded t o t he Rome St at ut e of t he Int ernat ional Criminal Court on 2 January 2015, 61 wit h t he St at ut e ent ering int o force on 1 April 2015. On 1 January 2015, t he Internat ional Criminal Court received a declarat ion from t he St at e of P alest ine accepting t he jurisdiction of the Court since 13 June 2014. 62 The Prosecutor of the Int ernational Criminal Court announced on 16 January 2015 t he opening of a preliminary examinat ion into the situation in Palestine in order t o est ablish whet her t he Rome St at ut e crit eria for opening an invest igat ion are met . 63

IV.

Context 53.

T he hostilities of 2014 erupt ed in t he cont ext of t he prot ract ed occupat ion of t he West Bank, including East Jerusalem, and t he Gaza St rip, and of t he increasing number of rocket attacks on Israel. In the preceding months, there were few, if any, political prospect s for reaching a solut ion to the conflict that would achieve peace and securit y for Palestinians and Israelis and realize t he right t o self-det erminat ion of t he P alest inian people.

54.

T he blockade of Gaza by Israel, fully implemented since 2007 and described by t he Secret ary-General as “a cont inuing collect ive penalt y against t he populat ion in Gaza�

(A/HRC/28/45, para. 70), was st rangling t he economy in Gaza and imposed severe rest rictions on the rights of the Palestinians. Two previous rounds of host ilities in t he St rip since 2008 had not only led t o loss of life and injury but also weakened an already fragile infrast ruct ure. P alest inians have demonst rat ed ext raordinary resilience in recent years, living in an environment scarred by physical dest ruction and psychological t rauma. In t he West Bank, including East Jerusalem, set t lement -relat ed act ivit ies and set t ler violence cont inued t o be at the core of most of the human right s violat ions against P alest inians. In t he absence of any progress on the political front, the risk of a flare-up of t he sit uat ion was evident .

55.

In t he meantime, threats to the security of Israel remained all t oo real. P al est inian armed groups increasingly launched rocket s during June and July 2014. T he discovery of t unnels leading int o Israel added t o t he sense of insecurit y. According t o one wit ness, resident s of her kibbut z experienced regular panic attacks after a tunnel discovery in March 2014 and t he explosion of an alleged t unnel exit on 8 July. Several ot her infilt rat ion at t empt s were t hwart ed by t he IDF during July and August .

56.

T he events of summer 2014 were preceded by an agreement , reached on 23 April 2014 bet ween t he P alest inian Liberat ion Organizat ion and Hamas, which sought t o end

60

61

62

63

Article 28 Rome Statue of the ICC, article 7(2) of the Statute of the ICTY and article 6(2) of the Statute of the ICTR. See also ICRC, Database on Customary International Humanitarian Law, Rule 152 United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII10&chapter=18&lang=en International Criminal Court, Palestine declares acceptance of ICC jurisdiction since 13 June 2014, ICC-CPI-20150105-PR1080. Available at: http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1080.aspx International Criminal Court, The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, ICC-OTP-20150116-PR1083.

Available at: http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx

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P alest inian divisions. On 2 June 2014, P resident Abbas declared t he format ion of a Government of nat ional consensus. T he Government had yet t o assume it s full responsibilit ies in Gaza when act ive hostilities broke out in the St rip in July 2014, t hereby leaving Hamas exercising government-like functions, as had been t he case since June 2007.

57.

On 12 June 2014, t hree Israeli t eenagers were kidnapped and brut ally murdered in t he West Bank. In response, Israel launched an ext ensive search and arrest operation, which last ed unt il t he bodies of t he t eenagers were found on 30 June. On 2 July, a 16 -year-old P alest inian t eenager from East Jerusalem was viciously murdered by being burned al ive and his body discovered in West Jerusalem in what appeared t o be an act of revenge for the murdered Israeli t eenagers. Tensions in the West Bank, including East Jerusalem, ran high, and were furt her fuelled by a rise in extreme anti-Palestinian rhetoric. Widespread prot est s and violent clashes ensued bet ween P alest inians and t he Israel Defense Forces.

58.

On 7 July 2014, t he Israel Defense Forces commenced operation ‘P rot ect ive Edge’ in t he Gaza St rip, wit h the st at ed object ive of st opping t he rocket at t acks by Hamas and dest roying it s capabilities to conduct operations against Israel. The operat ion began during Ramadan, t he Muslim month of fasting. After an initial phase focused on airst rikes, on 17 July 2014, Israel launched a ground operat ion, which it declared sought t o degrade “t error organisat ions’ milit ary infrast ruct ure, and [… neut ralize] t heir net work of cross-border assault t unnels”. A t hird phase began on 5 August and was charact erized by alt ernat ing ceasefires and on-going air st rikes. The operation concluded on 26 August when bot h Israel and P alest inian armed groups adhered t o an uncondit ional ceasefire.

V.

Principal findings and conclusions

A.

The Gaza Strip and Israel

1.

Rocket, mortar and tunnel attacks against locations in Israel 59.

Up t o t en organized armed groups, often linked t o polit ical movement s of various ideologies, were act ive in Gaza in t he summer of 2014. However, t heir milit ary capacit y and t heir level of involvement in t he hostilities against the IDF varied significantly. Several of t hese groups not only fired rocket s and mort ar shells but also part icipat ed in milit ary engagement s wit h t he IDF. 60.

During t he host ilities, the t wo largest and best -equipped groups, t he Izz Al Din Al Qassam Brigades and Al Quds Brigades, regularly issued st at ement s regarding at t acks.

Securit y expert s have noted t hat while the Al Qassam Brigades may have t argeted civilians in t he past as part of its military st rategy,64 in 2014 its declared official policy was “to focus on milit ary or semi-milit ary t arget s and t o avoid ot her t arget s, especially civilians.”

61.

T he Al Nasser Salah Al Din Brigades, which is t he milit ary wing of t he P opular Resist ance Committees was t he t hird largest organized armed group operat ing in Gaza in 2014. The other groups wit h a similar type but lower level of engagement include: t he Abu Ali Must afa Brigades, t he military wing of t he Popular Front for the Liberation of Palestine or “P FLP”; the Gaza branch of the Al-Aqsa Mart yrs Brigades, Fat ah’s milit ary wing; t he Nat ional Resist ance Brigades;65 and t he milit ary wing of t he Democrat ic Front for t he

64 65

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https://dcaf.ch/content/download/98409/1517146/file/Entry -Points(EN).pdf https://alethonews.wordpress.com/2014/04/14/dflp -militants-fire-3-mortar-shells-at-israeli-vehiclesin-gaza/

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Liberat ion of P alest ine (DFLP ). Ot her, smaller armed groups are present in Gaza but it remains unclear whet her t hey part icipat ed in t he 2014 host ilit ies.

62.

While t he relationship between Hamas and Islamic Jihad and t heir respect ive armed wings was a compet it ive one in t he past , during t he 2014 escalat ion in Gaza t hey are report ed to have coordinated t heir actions 66 . In addit ion, it appears that other armed groups coordinat ed t heir military activities to a certain degree and also conduct ed joint operat ions.

In an int erview, t he spokesman for Abu Ali Must afa Brigades, t he milit ary wing of t he P opular Front for the Liberation of Palestine, said t here was a joint operat ions room where each P alest inian armed group had a representative. He indicat ed t hat t hey had carried out operat ions t oget her. 67 63.

T he military capability of these groups is reported t o have significantly improved in recent years. T he Israel Defence Forces est imat e t he rocket arsenals of t he Al Qassam Brigades and Al Quds Brigades at 6000 and 5500 respectively68 . Whereas t he majorit y of rocket s can cover a range of up t o 20 km , longer-range rocket s appear t o have been acquired by P alest inian armed groups in recent years (wit h a range of up t o 200 km). 69 64.

Amnest y Int ernat ional report s t hat t hese groups “have produced, upgraded or smuggled in t housands of BM-21 Grad rockets wit h ranges varying from 20 km to 48 km”, in addit ion t o locally produced rocket s reaching as f ar as 80 km, such as t he M-75 and J80 70 . T he majorit y of rocket s fired by P alest inian groups have no guidance syst em. 71 Mort ars, reportedly with a range of up t o 8 km, have been act ively used along t he Green Line. 72 Other weapons include rocket-propelled grenades, home-made drones, SA 7 Grail ant i-aircraft missiles, Kornet 9M133 ant i-t ank guided missiles, and a wide array of small arms, rifles, machine guns and hand grenades. 73

66 67

68

69

70

71

72

73

Statement of W069.

Al-Akhbar, Abu Jamal: M ilitary spokesman Abu Ali M ustafa Brigades¸ interview of 2 September 2014. http://www.al-akhbar.com/node/214694. http://www.idfblog.com/blog/2014/07/10/6-million-lives-in-danger-the-deadly-rocket-arsenal-ofhamas/ Rockets - Qassam 1 (4 km), Qassam 2 (10 km). Qassam 3 (12 km), Grad (20 km), WS 1E upgraded Grad (45 km), Fadjr 5 or Gaza produced M 75 or J 80 (75 km), M 302 Khaibar or Gaza produced R 160 (100 – 212 km), 22mm Katyusha (30 km); see: http://www.globalsecurity.org/military/world/para/hamas-qassam.htm http://www.aerospaceweb.org/question/weapons/q0279.shtml https://www.bing.com/images/search?q=hamas+rocket+types&id=5ECD09F1A672B81DE1194B648 F144190A9CC61C3&FORM =IQFRBA http://www.jewishpolicycenter.org/gaza-watch/data/ http://www.nbcnews.com/storyline/middle-east-unrest/hamas-firing-china-designed-syria-made-m302-rockets-israel-n152461 https://www.amnesty.org/en/documents/mde21/1178/2015/en/, p.9; see also: Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, footnote 9 http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015. http://www.ohchr.org/Documents/Countries/PS/A.HRC.28.80.Add.1.doc ; http://www.foreignaffairs.com/articles/141698/mark-perry/gazas-bottle-rockets Amnesty International, Unlawful and deadly. Rocket and Mortar Attacks by Palestinian Armed Groups during the 2014 Gaza/Israel Conflict, M arch 2015, p.17.

Gaza Conflict Task Force commissioned by the Jewish Institute for National Security Affairs (JINSA), 2014 Gaza War Assessment: The New Face of Conflict, Report of M arch 2015, pp . 61-62

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a.

Rocket and mortar attacks 65.

“There have been many operations we carried out jointly with the brothers in AlQassam, such as hitting Tel Aviv, Beersheba and Ashdod as well as engaging the Special Forces east of Khan Younis.”

Abu Ahmad, spokesman of Saraya al-Quds74 66.

Bet ween 7 July and 26 August 2014, P alest inian armed groups fire d several t housand project iles towards Israel killing six civilians. 75 According t o Minist ry of Healt h st at istics, up t o 1600 Israelis were injured, including over 270 children. 76 Of t hese, Magen David Adom, Israel’s national emergency medical service, repor ted t hat it t reat ed at least 836 people for different t ypes of injuries, including 36 people wounded by shrapnel, 33 people hurt by shat tered glass or building debris, and 159 people injured in t he rush t o reach shelt ers77 . According t o t he Unit ed Nat ions, 4881 rocket s and 1753 mort ars were fired t owards Israel during t he summer 78 . Official information available from Israel has a lower figure of 4500 projectiles fired by P alestinian armed groups during t his period, but it does not provide a breakdown bet ween rocket s and mort ars. 79 67.

As a result of t he many project iles fired during t he 2014 host ilit ies, t housands of people in sout hern Israel left their homes 80 and moved t o areas less affected by t he at t acks.

T he Government of Israel estimates that approximately 10,000 civilians were displaced, 81 and OCHA reports that as many as 70 per cent of residents in communit ies near Gaza left t heir homes. 82 Wit nesses t old t he commission t hat , for inst ance, up t o a quart er of t he inhabit ants of Kibbut z Nirim, locat ed 1.7 km from Gaza, including 110 children 83 , were displaced t owards t he north. Those who st ayed had t o run into shelt ers or safe rooms each t ime a siren warned t hem t hat a rocket or mort ar had been fired in t he vicinit y.

74

75

76

77 78 79

80

81

82

83

20

Echorouk, Exclusive Interview with Abu Ahmad, the spokesman of Saraya al-Quds, 14 August 2014, carried by Free Palestine Agency, http://www.palestineafree.com/index.php?id=26436#.VYGGj_mqpHw For a list see Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, footnote 13 http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015.; http://www.shabak.gov.il/English/EnTerrorData/Reports/Pages/M onthly0814.aspx, http://www.shabak.gov.il/English/EnTerrorData/Reports/Pages/M onthlysummary%E2%80%93July2 014.aspx ; http://www.idfblog.com/blog/2014/07/19/fallen-soldiers-operation-protective-edge/ Quoted in Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, p. 4 http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015. http://www.mdais.com/316/7004.htm UNDSS figures quoted by OHCHR: A/HRC/28/80/Add.1, para. 24 Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, p. 1 http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015.

Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, p. 9 http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015.

Israel, M inistry of Foreign Affairs, The Threat to Israel’s Civilian Population and Civil Defence Measures, p. 16. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-ConflictFactual-and-Legal-Aspects.aspx, accessed on 30 M ay 2015.

OCHA Occupied Palestinian Territory, Gaza Emergency Situation Report, 28 August 2014. Available at: http://www.ochaopt.org/documents/ocha_opt_sitrep_28_08_2014.pdf Attachment to statement W269, a follow-up email to the interview

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Communit ies within 2 km of Gaza were given 30 seconds or less t o heed t he warnings and in some cases t his was reduced t o as lit t le as 3 seconds. 84 68.

As a result of Israel’s lack of cooperat ion and denial of access t o it s t errit ory, t he commission faced difficulty in identifying victims who had been injured in rocket at t acks and was unable t o examine individual cases in det ail. However, the commission was able to speak t o wit nesses and victims of a number of mortar at t acks which were t he cause of t he majorit y of civilian deat hs in Israel.

Rocket attacks 69.

T he Al Qassam Brigades issued a st at ement indicating t hat on 19 July 2014 they had fired t hree M75 rockets at the town of Dimona 85 . It appears that one of them killed Ouda Al Waj and injured at least 3 ot her people, including 2 children, in t he nearby Bedouin set t lement of Kaser Al-Ser. 86 T hese Bedouin set t lement s in t he Negev Desert , which t ypically consist of makeshift houses, are not covered by t he Iron Dome defence syst em or equipped wit h warning syst ems and shelt ers 87 . As point ed out by Amnest y Int ernat ional, t he village of Kaser Al-Ser was recognized by t he St at e of Israel in 1999, but it s infrast ruct ure remains rudiment ary and it is t hreat ened by demolit ion. According t o Amnest y International, the family did not receive compensation from t he aut horit ies aft er t he at t ack because t he vict im’s home was due t o be demolished anyway. 88 70.

In addit ion, a number of other incidents were brought t o the commission’s attention.

According t o official Israeli sources, on 26 August 2014 at 6.30 a.m. a rocket hit a home in Ashkelon, injuring at least 20 people, including 3 children. 89 On 22 August 2014, a Grad rocket st ruck near Gan Yavne, injuring Netanel Maman, an IDF soldier on home leave, and five ot her people. Netanel Maman died a week lat er as a r esult of shrapnel injuries t o his head. According t o Israeli sources, Hamas claimed responsibilit y for t hat at t ack. 90 Addit ional information on several incident s in which rocket at t acks injured civilians was provided in document at ion published by Israel’s Minist ry of Foreign Affairs. 91 T his also included information regarding incidents in which schools and ot her buildings dedicat ed t o children were hit by rocket s. 92

84

85 86

87

88 89

90

91

92

W009; see also: Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015. p. 7; http://alresalah.ps/ar/post/97342; http://fpnp.net/site/news/25768 https://www.amnesty.org/en/documents/mde21/1178/2015/en/; Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, footnote 13 http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015. http://www.mcclatchydc.com/2014/07/20/233867/israels-bedouin-defenseless-against.html http://ua.amnesty.ch/urgent-actions/2014/08/203-14/ua-203-14-english; http://www.timesofisrael.com/negev-bedouin-defenseless-as-man-killed-4-injured-by-gaza-rocket/ https://www.amnesty.org/en/documents/mde21/1178/2015/en/, pp.20-21 M FA on 26 August 2014; at: http://mfa.gov.il/mfa/foreignpolicy/terrorism/pages/rise-in-rocket-firefrom-gaza-3-jul-2014.aspx M FA on 29 August 2014; at: http://mfa.gov.il/M FA/ForeignPolicy/Terrorism/Victims/Pages/NetanelM aman.aspx Israel, M inistry of Foreign Affairs, The Threat to Israel’s Civilian Population and Civil Defence Measures, pp. 8-9 http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-ConflictFactual-and-Legal-Aspects.aspx, accessed on 30 M ay 2015.

Ibid. pp. 12-13

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Mortar attacks 71.

T he commission examined t he killings of four other people and an inciden t leading t o one person being seriously injured by mort ar fire close t o t he Green Line in Israel.

According t o information received, mortar at t acks t arget ing Israeli t owns near t he Green Line increased significant ly during t he final week of t he conflict . 93 72.

23 July mortar attack hitting a greenhouse: On 23 July 2014, a 36 year-old agricult ural migrant worker from Thailand was killed in a greenhouse locat ed close t o t he Green Line fence in Netiv Ha’sara, Ashkelon Coast Regional Council, by shrapnel from a mort ar shell, apparent ly fired by Hamas milit ant s. Narakorn Kit t iyangkul was hit while sit t ing next t o an Israeli co-worker enjoying his lunch break. Amnest y Int ernat ional report ed t hat a t ot al of t hree shells fell in t he area, wit h t he t hird hit t ing t he group of workers. 94 T he wit nesses said t hat t he vict im had been working on t he farm for only a mont h. 95 73.

T he incident took place in a farm that borders t he Israeli perimeter fence around t he Gaza St rip in t he nort h, close t o t he Erez crossing96 where t here is a small permanent milit ary base. While t he precise locat ion of t he st rike is unknown, based on available information provided t o Amnest y Int ernat ional by t he Magen David Adom emergencies coordinat or 97 and measurements on google maps, it is likely t hat t he mort ar landed in an area locat ed bet ween 100 and 800 meters from the military base. The commission notes that t his military base appears to have been t argeted by P alestinian armed groups several t imes during t he host ilit ies. 98 74.

Wit nesses t old the commission that in another incident several weeks lat er, the siren sounded and an explosion was heard result ing in damage t o all t he cars in Net iv Ha’sara .

Many resident s t hen decided t o leave, including t hree other migrant co -workers of the T hai vict im. Witnesses ident ified t rauma and persist ent fear of t he t unnels as core feat ures of everyday life for people in t he kibbut z during t he hostilit ies, and many members are said to require therapeutic counseling 99 : “It isn’t post traumatic stress because it’s on-going. It is sequential trauma, one thing after another. It wears you down and makes you more vulnerable.” 100 75.

Several wit nesses int erviewed by t he commission expressed empat hy for t he civilians in Gaza who t hey say are t rapped in a warzone wit hout access t o economic opport unities and protection, such as shelt ers and radar systems.101 For example, a wit ness st at ed:

93

94

95 96 97

98

99 100 101

22

Amnesty International, Unlawful and deadly: Rocket and mortar attacks by Palestinian armed groups during the 2014 Gaza/Israel conflict, 26 M arch 2015, p. 17 W010 and W011; Amnesty International submission to the CoI, page 13. See also: http://mfa.gov.il/M FA/ForeignPolicy/Terrorism/Pages/Rise-in-rocket-fire-from-Gaza-3-Jul2014.aspx; W010 and W011 W010 and W011; Amnesty International submission to the CoI, page 14.

Amnesty International, Unlawful and deadly: Rocket and mortar attacks by Palestinian armed groups during the 2014 Gaza/Israel conflict, 26 M arch 2015, p. 28 M ortar attack which hit Erez a military base at Erez on 15 July 2014 and mortar attack which hit the adjoining crossing on 24 August 2014 Refer to section VI. A. for further details.

W009.

W010, W011

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“As long as the people on the other side of the border don’t have security and a way to live side by side, this is going to continue. I want to tell this to the leaderships of both sides. We need to achieve dignity and liberty for the other side as well.” 102 76.

22 August mortar attack on Kibbutz Nahal Oz: On 22 August 2014, Daniel T regerman, aged 4, was killed by a mort ar shell in his home at Kibbut z Nahal Oz in t he Sha’ar Hanegev Region about 2 km from t he Gaza Green Line. 103 T he boy was playing wit h his t wo younger siblings inside t he house when a mort ar st ruck t he family car and spread shrapnel t hat killed Daniel. His mother told t he commission that t he family had left t he kibbut z one day before t he start of Operat ion “P rot ect ive Edge” because rocket s had been fired from Gaza over the previous t wo weeks. On 21 August , t he family had ret urned t o t he kibbut z because t hey believed t hat t he violence was over, alt hough t hey said t heir, “suit cases remained ready because [t hey] knew that Hamas could break t he ceasefire at any t ime”. 104 As the explosion occurred only three seconds after the siren warning, t he parent s who had t aken t he two younger siblings t o the safe room had no t ime t o t ake Daniel wit h t hem 105 .

77.

In a media int erview, Daniel’s fat her said t hat his wife had want ed him t o call for help but he knew t hat t heir son had already died. In his words, “t here was no need fo r anyone t o come […]. We are t rying t o leave t his inferno and we are leaving Daniel behind.”106 T he father realized later that he himself was injured by shrapnel in t he legs. 107 Daniel’s mother told the commission that on the same day her son died anot her woman was injured by a Qassam rocket in t he same kibbut z. 108 Daniel’s mot her described t he 2014 host ilities as more violent than previous conflict s, part icularly as t he civilian populat ion was under a persist ent t hreat of rocket and t unnel at t acks. She called for an end t o t he violence, which cont inues t o cause suffering t o mot hers on bot h sides: “We the people living in Israel want to live in peace and not under threat of terrorism. I would like our neighbours in Gaza to have a good and happy life and their chil dren to go to school, and they can do this if they do not live under terrorism.” 109 78.

Israeli media sources report that over 90 rocket s and mort ar shells were fired from Gaza int o Israel on 22 August and sirens sounded across sout hern and cent ral Israel as a barrage of rocket s was launched in t he late afternoon. 110 According t o OCHA, most of these rocket s were fired indiscriminately and t hey fell in open areas or were int ercept ed by t he Iron Dome Syst em 111 . According t o a media report of 26 August , t he Al Qassam Brigades st at ed t hat they had targeted t he IDF’s chief of staff, Benny Gant z, in Nahal Oz on Friday

102 103

104 105

106 107 108 109 110 111

W010 W040; see also: http://mfa.gov.il/M FA/ForeignPolicy/Terrorism/Victims/Pages/DanielTragerman.aspx; and http://mfa.gov.il/M FA/InternatlOrgs/Issues/Pages/Letter-by-parents-of-DanielTregerman-to-UN-Secretary-General-Ban-Ki-moon-4-September-2014.aspx ; W040 W040; Another witness who works with trauma victims in Israel confirmed that many Israeli families with children who live close to the Gaza Green Line, evacuated the area during the 2014 hostilities.

Statement of W009 to the CoI; see also http://mfa.gov.il/M FA/ForeignPolicy/Terrorism/Victims/Pages/Daniel-Tragerman.aspx ; http://www.ynetnews.com/articles/0,7340,L-4563633,00.html and Amnesty International submission to the CoI, p 16. http://www.ynetnews.com/articles/0,7340,L-4563633,00.html Amnesty International submission to the CoI, page 16 Statement of W040 to the CoI Statement of W009 to the CoI http://www.timesofisrael.com/four-year-old-boy-killed-in-mortar-attack-on-shaar-hanegev/ https://www.ochaopt.org/documents/ocha_opt_sitrep_25_08_2014.pdf, p.3

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22 nd August . T he Al Qassam Brigades had received information t hat a convoy including a senior Israeli officer would arrive and t hey believed it would be Benny Gant z and t herefore direct ed mort ar and rocket -propelled grenades at t he area around t he convoy. 112 T he presence of Benny Gant z at Nahal Oz during t he attack was confirmed and made public in Israeli media reports on 23 August . 113 According t o a media article published on 24 August, Israeli securit y forces suspect ed t hat “Hamas has succeeded in ident ifying in a few incident s when and where VIP visits occur. On several such occasions, Hamas has launched rocket s and fired mortar shells on the southern Kibbut zim during t hese visits.” 114 Based on t he information available, the commission cannot exclude t hat t he int ended t arget of t he t ragic at t ack of 22 August on Kibbut z Nahal Oz was t he IDF Chief of St aff.

79.

26 August mortar attack on Kibbutz Nirim: On 26 August , Ze'ev Et zion and Shahar Melamed were killed by a mort ar as they tried t o repair the electricity lines that had been damaged by P alest inian projectiles earlier in the day in Kibbut z Nirim, Eshkol region.

While t hree ot her people suffered minor injuries in t he at t ack 115 , Gad Yarkoni, who t ravelled t o Geneva to speak to the commission, had t o have bot h his legs amput at ed as a result of his injuries. 116 He saw his t wo colleagues lying close by and realized t hat his legs were severely injured when t he alarm went off again and he could not move. It was not possible t o evacuat e him immediately by helicopter because t he shelling cont inued despit e t he agreed ceasefire. He said he was flown t o a hospital by helicopter and when he woke up t here 13 days lat er, he was t old t hat he had lost bot h legs. 117 T he Al Qassam Brigades announced t hat t hey had t arget ed Kibbut z Nirim and various ot her communit ies in t he vicinit y of Gaza wit h 107 mm mortars on the day of the attack 118 . The type of weapon used was consist ent wit h t he t est imony of kibbut z resident s. 119 80.

Resident s of t he kibbut z st ruggled t o cope wit h t he fear result ing from t he loss of t wo communit y members, bot h of whom were said t o have been key figures in t he communit y.120 One witness gave an account of the trauma experienced by t he resident s of t he kibbut z during t he summer as 150 mortars hit the area, despite the apparent absence of an IDF milit ary base in t he vicinity. He also said there had been no military act ivit y in t he area for t wo days prior t o the attack.121 However, another wit ness t old t he commission t hat t anks were deployed in t he fields near the kibbut z at the time of t he at t ack, alt hough t here were fewer t han during t he ground invasion because t he IDF had already pulled out several unit s by 26 August . 122 T his wit ness’s house was also hit by a mort ar on t hat day, which caused significant damage t o t he walls, the windows and t he air conditioning syst em. T his

112

113

114

115 116 117 118

119 120

121 122

24

Ajnad News, Qassam emphasizes target Gantz on Gaza Border. http://ajnad-news.com/site/ajnad/details.aspx?itemid=19178 Times of Israel, IDF chief was at Kibbutz Nahal Oz when mortar shell there killed Daniel Tragerman, 23 August 2014. http://www.timesofisrael.com/liveblog_entry/idf-chief-was-at-kibbutz-nahal-ozwhen-mortar-shell-there-killed-daniel-tragerman/ Amos Harel and Gili Cohen, Israel Assess: Hamas is launching rockets on the south during VIP visit's, Haaretz, 24 August 2014. http://www.haaretz.co.il/news/politics/.premium-1.2413881 W074, see also http://www.timesofisrael.com/kibbutz-member-killed-by-mortar-shell-laid-to-rest/ W074, Gad Yarkoni on 15 January 2015 Statement of W074 to the CoI https://twitter.com/qassam_arabic1/status/504191347684048898; see also: http://www.timesofisrael.com/kibbutz-member-killed-by-mortar-shell-laid-to-rest/ and http://www.haaretz.com/news/diplomacy -defense/1.612741 See Amnesty International submission to the CoI W074; W269; see also: http://www.timesofisrael.com/kibbutz-member-killed-by-mortar-shell-laid-torest/ W074 W269

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wit ness claimed t hat t he mort ar at t acks reflect ed a st rat egy by Hamas t o t arget Israeli civilians living close t o Gaza, once t he P alest inian armed groups realized t hat t he Iron Dome defense syst em was more effect ive in larger cit ies in t he nort h. T he wit ness confirmed t hat a quart er of t he 400-st rong populat ion of t he kibbut z had been evacuat ed t hroughout t he conflict to locations in the north. The evacuat ion, the t hird of it s kind since 2008, was conduct ed according t o t he kibbut z’s emergency plan, and was not orchest ra t ed by t he Israeli Government .

81.

Eshkol Kindergarten: On 21 August at 10 a.m., a number of mortars t hat appear to have been fired from Gaza hit a kindergarten in Eshkol, located about 2 km from the Green Line, severely injuring one person.

82.

An eyewit ness, Jehan Berman, told the commission that he and his wife had gone t o t he kindergarten to celebrate the birthday of their 3-year-old son. They first heard an alarm, followed by t he sound of mort ars five seconds lat er. They moved inside the building where 17 children and 3 female guards were present . A first mortar hit, t hen t wo minut es lat er, a series of mort ar st rikes followed.

83.

“We counted 13 mortars in total. One of the mortars hit a tree next to the school and, since it exploded in the air, all the debris fell towards the ground, crossed the window, crossed my upper left shoulder and then landed on the wall, at 15 cm from my wife. The debris fractured the scapula in 5 pieces, destroyed the cartilage and touched the lung as well. I fell on the ground and started screaming because I was in so much pain, although I did not lose consciousness. I felt a massive pain in my left hand. The ambulance arrived soon after. […Later, in the hospital] I realised how lucky I was after I was informed that the debris travelled at just 2cm from a major artery in my heart. So I’m happy to be alive today. I am recovering from this nightmare but the road is long. My movements are extremely limited and I undergo daily physiotherapy sessions. […] My aim now is to tell everyone what happened and to say that this needs to stop. In Eshkol living under the constant threat from Hamas is a real suffering.”123 Factual assessment 84.

According t o t he Government of Israel, approximat ely 4,000 of t he 4,500 rocket s and mort ars fired by P alest inian armed groups were direct ed at Israeli cit ies, t owns and resident ial communities; 250 landed accident ally in Gaza; and t he rest were directed at IDF t roops in Gaza. 124 85.

T he aut horities in Gaza assured t he commission t hat P alest inian armed groups did not t arget civilians and complied wit h int ernat ional humanit arian law, and t hat any such act ion was not deliberate. They maintained t hat Palestinian rockets are ‘primit ive’ and not very t echnologically advanced but nevertheless t he factions attempted t o direct their rockets at milit ary t arget s in Israel. 125 86.

T he commission request ed det ailed information from t he Government of Israel on where t he rockets and mortars fired by P alestinian armed groups in Gaza act ually landed so as t o make a more det ailed assessment of t he proport ion of cases in which t hey were direct ed at densely populated areas in Israel. Unfortunat ely, t he Government of Israel did

123 124

125

W041 Israel, M inistry of Foreign Affairs, Hamas Violations of the Law, p.1. Available at: http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015.

Interview with Ghazi Hamad.

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not provide a response, which made it difficult for the commission to det ermine t he ext ent t o which at t acks direct ed at t he civilian populat ion in Israel.

87.

A let t er was sent to the St ate of P alest ine request ing informat ion on t he object ive and t arget s of the rocket and mortar firing, as well as informat ion on t he t ype of rocket s used by P alest inian armed groups in Gaza. A similar let t er was sent t o Hamas. T he commission did not receive a response t o t hese specific request s for informat ion.

88.

T he commission notes t hat a number of milit ary object ives are locat ed in various part s of Israel, in some cases in the immediate vicinity of built up areas such as t he Hat zor airbase, or in t he case of the IDF Headquart ers, in the midst of a densely populated area. In addit ion, during t he escalation of hostilit ies, t he number of IDF posit ions in t he sout h of Israel around Gaza, somet imes close to civilian communities, was higher than usual, as t his area was used t o posit ion artillery and as a st aging ground for t he IDF ground operat ion in Gaza. 126 89.

Several st at ements were made by armed groups indicat ing t hat in some cases, t hey int ended t o t arget milit ary object ives in Israel. For inst ance, in a press conference t he spokesperson of t he Nat ional Resist ance Brigades in Gaza said t hat t he groups had fired project iles t owards “milit ary posit ions along t he Gaza border.” 127 T he examinat ion of messages post ed bet ween 3 and 26 August 2014 on t he unofficial English twitter account of t he Al Qassam Brigades clearly dist inguishes bet ween attacks direct ed at Israeli cit ies and at t acks t arget ing milit ary object ives in Israel. 128 90.

However, in t he vast majorit y of individual rocket and m ort ar at t acks, t he commission does not have information on the int ended t arget s, but not es t hat P alest inian armed groups announced t hat t hey int ended t o at t ack populat ion cent res in Israel 129 and declared responsibility for launches directed at different places in Israel.130 For instance, on 7 July a communiqué of t he Al Qassam Brigades st ated, “ Shelling milit ary bases ‘Nit ifot , Ofokeem, Ashdod & Asqalan’ wit h (35) missiles.” 131 Wit h regard t o t his st at ement t he commission notes that it appears t hat t he Al Qassam Brigades int ended t o t arget Israeli t owns but decided t o charact erise them as military bases. On 3 August 2014, the Al Qassam Brigades issued a st at ement confirming their intention to target Israeli civilians in response t o Israel’s “target ing of Palestinian civilians in their homes and shelt ers.” 132 On 8 August , Al Qassam Brigades t weet ed, “All Zionist cit ies will be t arget ed daily unt il all of our demands are met .” 133 In an Al Jazeera news report a member of t he Al Qassam Brigades mort ar unit, allegedly deployed along the Green Line in Khuza’a, declared t hat from t heir

126

127

128

129

130 131

132

133

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Amnesty International, Unlawful and deadly. Rocket and Mortar Attacks by Palestinian Armed Groups during the 2014 Gaza/Israel Conflict, M arch 2015, pp, 16-17.

Al Watan Voice, In a press conference for the National Resistance Brigades in Gaza: During the war, we launched 748 missiles and killed eight Israeli soldiers, 27 August 2014. http://www.alwatanvoice.com/arabic/news/2014/08/27/583646.html @Qassam_English, account currently suspended. For instance on 25 August two tweets mention attacks on military bases: “Al-Qassam Brigades fired 3 mortars at a military base east of Nirim in response to Israel's attacks on Gaza, Palestine,” or “Al-Qassam Brigades fired 2 mortars at military base Zikim in response to Israel's attacks on Gaza, Palestine” https://twitter.com/qassamenglish/status/497776823636623361 ;http://www.ohchr.org/Documents/Countries/PS/A.HRC.28.80.Add.1.doc www.saraya.ps/index.php?act=Show&id=36899, www.alqassam.ps/arabic/#!/ ‫;األخبار‬ http://www.qassam.ps/statement-1506Al_Qassam_Brigades_retaliate_with_35_missiles_on_Israeli_military_bases.html https://cintayati.files.wordpress.com/2014/08/al-qassam-no-life-is-more-precious-than-the-lives-ofour-people-3-aug-statement.jpg @qassamenglish, 8 August 2014. Account currently suspended

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locat ion they had at tacked several “settlement s and milit ary concent rat ions.” 134 During a press conference the spokesperson of the National Resistance Brigades in Gaza st at ed t hat t he groups had fired project iles t owards “Israeli t owns and set t lement s.” 135 In addit ion, maps of some of t he areas neighbouring Gaza showing t he impact point s of rocket s and mort ars provided in document at ion made available by Israel, appear t o indicat e a concent rat ion of impact point s around built up areas close t o t he Green Line. 136 91.

Mort ar fire by t he P alest inian armed groups appears t o have oft en been aimed at specific t arget s and is more precise t han t he rocket s in t he armed groups’ arsenal. 137 In numerous cases mort ars fired by P alest inian armed groups t arget ed IDF forces. 138 While some of t hese at t acks were direct ed at IDF t roops inside Gaza, 139 a number of mort ar at t acks were directed at IDF positions and t roop concentrations inside Israel in t he vicinit y of t he Gaza St rip. For inst ance, on 16 July 2014 IDF assembly zones close t o t he Erez crossing were t arget ed, result ing in t he deat h of a civilian who was dist ribut ing food t o soldiers. 140 T he IDF acknowledges t hat approximately 10 IDF soldiers were killed along the Green Line seemingly in Israel, in the course of a number of at t acks during which mort ars appear t o have been fired at IDF forces. 141 92.

In a few inst ances it appears t hat P alest inian armed groups in Gaza at t empt ed t o warn civilians in Israel of at t acks t hat might affect t hem. For example, according t o information provided by t he Ministry of Foreign Affairs of t he St at e of P alest ine, on 12 July 2014 an armed group in Gaza announced in Arabic and Hebrew t hat it would carry out an at t ack on Tel Aviv and specified t he time at which t he at t ack was t o t ake place. 142 On anot her occasion, according to media reports, the Al Qassam Brigades issued a warning t o airlines not to fly to Ben-Gurion airport as it considered t he airport t o include a milit ary base. 143 On 20 August 2014, t he Al Qassam Brigades, t hrough a press release issued in English, once again warned int ernational airlines not to fly into Tel Aviv st art ing from t he 134

135

136

137

138

139

140

141

142

143

Al-Jazeera, report of 6 August 2014. Reproduced on M EM RI TV, available at: http://www.memritv.org/clip/en/0/0/0/0/239/0/4404.htm Al Watan Voice, In a press conference for the National Resistance Brigades in Gaza: During the war, we launched 748 missiles and killed eight Israeli soldiers, 27 August 2014. http://www.alwatanvoice.com/arabic/news/2014/08/27/583646.html Israel, M inistry of Foreign Affairs, Hamas Violations of the Law, p.8. See also The Threat to Israel’s Civilian Population and Civil Defence Measures, p. 16. Available at http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed on 30 M ay 2015.

Gaza Conflict Task Force commissioned by the Jewish Institute for National Security Affairs (JINSA), 2014 Gaza War Assessment: The New Face of Conflict, Report of M arch 2015, p. 40.

Gaza Conflict Task Force commissioned by the Jewish Institute for National Security Affairs (JINSA), 2014 Gaza War Assessment: The New Face of Conflict, Report of M arch 2015, p. 40.

Israel, M inistry of Foreign Affairs, Legal Aspects: Hamas Violations of the Law, p.1. Available at http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed on 30 M ay 2015.

See website of the Israeli Prime M inister’s Office: http://www.pmo.gov.il/English/TerrorInjured/Pages/vicDrorHanin.aspx, or the website of the Israeli M inistry of Foreign Affairs: http://mfa.gov.il/M FA/ForeignPolicy/Terrorism/Victims/Pages/DrorHanin.aspx IDF, Fallen Soldiers of Operation Protective Edge. https://www.idfblog.com/blog/2014/07/19/fallensoldiers-operation-protective-edge/ Response of the State of Palestine. Israel, M inistry of Foreign Affairs, Hamas Violations of the Law, footnote 18. Available at http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-GazaConflict-Factual-and-Legal-Aspects.aspx. Accessed on 30 M ay 2015 Reuters, Hamas wing says it will target Israel's main airport, 11 July 2014. Available at: http://in.reuters.com/article/2014/07/11/palestinians-israel-airport-idINKBN0FG0S620140711

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following morning, and asked resident s of communities locat ed in t he vicinit y of Gaza t o avoid ret urning home, or t o remain inside shelt ers. 144 Legal analysis 93.

P alest inian armed groups appear t o have provided advance warning in a very few inst ances before launching attacks t hat may have killed Israeli civilians. In part icular t he commission notes that a warning was issued on 20 August 2014 t hrough a press st at ement of t he Al Qassam Brigades inst ructing resident s of communit ies locat ed in t he vicinit y of Gaza t o avoid ret urning home, or t o remain inside shelt ers unt il furt her not ice 145 . T his preceded t he increased firing of mortars t owards t he areas in t he Gaza “envelope” during t he last week of t he conflict . 146 94.

T he cust omary rule of international humanit arian law reflect ed in art icle 57(3) of Addit ional P rotocol I, 147 provides t hat “effective advance warning shall be given of att acks which may affect the civilian population, unless circumst ances do not permit .” While t he obligat ion t o provide warnings is not absolut e (for example if the element of surprise or the speed of response are essential in the attack), any warning issued must be effect ive. While int ernat ional humanit arian law does not specify what t he required element s are for a warning t o be considered effect ive, t he commission considers t hat t wo of t he main requirement s are (1) that t he warning is crafted in a way t hat will be underst ood by t hose t o whom it is addressed; and (2) t hat t he warning can be act ed upon, meaning t hat what t he warning requires can be realist ically complied wit h.

95.

Wit h regards t o t he inst ances of warnings ment ioned above, regardless of t he legalit y of the attacks wit h which they are associated, it appears t hat t hey were of a nat ure t hat could be act ed upon. Airlines were warned in advance of t he possible t arget ing of t he airport , providing t hem with the time to suspend flights. Warning civilians in Tel Aviv t hat a rocket would be fired in t he direction of the city at 9 p.m. provided t he opport unit y for resident s t o seek shelter. Warning civilians to evacuat e communities located in the vicinit y of t he Green Line could also realist ically be act ed upon because -- unlike in Gaza -resident s could flee t o other areas of Israel less exposed t o threat s, in great part due t o t he exist ence of the Iron Dome system. The main concern regarding t he effect iveness of t hese warnings is whet her t hey fulfilled t he first requirement of being underst ood. Indeed, t his presupposes t hat those t o whom t he warning is addressed act ually received it . It appears t hat the warnings were issued t hrough t he Int ernet and press st at ement s. While in some cases, t he warnings or cert ain part s were replicat ed in t he media, it is not clear t hat t he met hods of t ransmission used could ensure t hat they reached t he intended public. However, it is also not clear what other methods of transmitting t he warnings were availabl e t o armed groups in Gaza.

96.

T he issuing of warnings is only one of t he precaut ionary measures described in art icle 57 of Addit ional Protocol I. Regardless of t heir effectiveness, the fact t hat warnings were issued does not relieve t he at t acking part y of t he ot her specific precaut ionary measures ment ioned in article 57. The general obligat ion to t ake constant care t o spare t h e 144

145

146

147

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http://www.qassam.ps/statement-1509Press_Release_of_Abu_Obeida_Al_Qassam_spokesperson.html http://www.qassam.ps/statement-1509Press_Release_of_Abu_Obeida_Al_Qassam_spokesperson.html See also the graph on page 5 State of Israel, Israel’s Objectives and Phases of the 2014 Gaza Conflict. Available at: http://mfa.gov.il/ProtectiveEdge/Documents/Objectives_Phases_Operation.pdf.

Accessed on 30 M ay 2015 ICRC, Database on customary international humanitarian law, Rule 20

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civilian populat ion and object s remains valid t hroughout t he at t ack , even if specific precaut ionary measures such as warnings have been implement ed. Art icle 57(5) clearly est ablishes t hat the adoption of precaut ions does not modify t he prohibit ion of at t acking civilians and civilian object s or of launching indiscriminat e at t acks.

97.

T he majority of projectiles fired by P alest inian armed groups consist ed of rocket s t hat at best were equipped wit h only rudimentary guidance syst ems and in the vast majority of cases had none at all. The ICRC Commentary on Additional Protocol I describes “longrange missiles which cannot be aimed exactly at the objective” as t he primary example of means of combat which cannot be direct ed at a specific military object ive. 148 T he rocket s available t o armed groups in Gaza are unguided and inaccurat e. Est imat es, confirmed by t he commission, indicate that the Fajr-5 149 and similar J-80 and M-75 rocket s can land as far as 3 km from any intended t arget. The longer range rockets, such as t he R-160, can land as far as 6 km away from t he t arget because t heir accuracy decreases wit h range. 150 Such rocket s cannot be direct ed at a specific military objective and t herefore st rikes employing t hese weapons const itut e indiscriminate attacks in violation of the cust omary rule reflect ed in art icle 51(4) of Addit ional P rot ocol I. 151 T he limit at ions of t he milit ary arsenals of P alest inian armed groups was advanced152 as a reason for their failure t o at t ack precisely milit ary t arget s. T he milit ary capacit y of t he part ies t o a conflict is irrelevant t o t heir obligat ion t o respect t he prohibit ion against indiscriminat e at t acks.

98.

While t he commission cannot know what the intended t arget of each rocket at t ack was, st at ement s made by P alest inian armed groups wit h regard t o t he firing of rocket s indicat e int ent to direct those attacks against civilians. In addit ion, int ernat ional t ribunals have ruled t hat in certain circumstances, indiscriminate attacks may qualify as direct attacks against civilians. 153 The launching of rocket s by P alest inian armed groups may t herefore amount t o war crimes. 154 99.

T he impossibility for P alest inian armed groups t o direct rocket s t owards milit ary object ives raises t he quest ion as to what milit ary advant age t he P alest inian armed groups could expect t o obt ain from launching t hese rocket s. Given t he apparent absence of any possible milit ary advantage, and st atements by P alestinian armed groups t hat t hey int ended t o hit Israeli cities, the commission cannot exclude t he possibilit y t hat t he indiscriminat e rocket attacks may constitut e act s of violence whose primary purpose is t o spread t error amongst t he civilian population, in violation of the cust omary rule reflected in article 51(2) of Addit ional P rot ocol I and art icle 13(2) of Addit ional P rot ocol II. 155 100. T he commission cannot know what t he int ended t arget s of t he diffe rent mort ar at t acks were because of t he IDF milit ary manoeuvres and t he presence of numerous IDF 148 149

150

151 152 153

154 155

ICRC Commentary on Additional Protocol I, p. 621, para. 1958 Army Recognition, Fadjr-5 333mm Multiple rocket launcher system, indicating that the Fajr-5 has a circular error of probability of 4 per cent.

Amnesty International, Unlawful and deadly. Rocket and Mortar Attacks by Palestinian Armed Groups during the 2014 Gaza/Israel Conflict, M arch 2015, p.10.

ICRC, Database on customary international humanitarian law, Rule 12 Interview with Ghazi Hamad International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Galic, case No. IT-98-29-T, Judgement, 5 December 2003, para. 57.

Article 8, Rome Statute of the ICC. ICRC, Database on customary international humanitarian law, Rule 2. While not listed as a war crime in the Rome Statute of the ICC, the Appeals Chamber of the ICTY found that “customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population.” Prosecutor v. Galic, case No. IT-98-29-A, Judgement, 30 November 2006.

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posit ions and bases in Israel in t he vicinit y of t he Green Line during t he host ilit ies.

However, st at ement s on unofficial t wit t er account s apparent ly relat ed t o Al Qassam Brigades, as well as st at ements by members of armed groups in t elevision news report s, 156 indicat e in some cases, their intent to st rike military object ives, whereas ot her st at ement s clearly spell out t he int ent t o t arget civilian communit ies. 157 101. As mort ars can be directed at a specific target , if they were used t o t arget civilians or civilian object s this would be a violat ion of the principle of distinction and would qualify as a direct at t ack against t he civilian populat ion and t herefore amo unt t o a war crime. 158 102. In t he cases in which at tacks were directed at military objectives located amidst or in close vicinit y t o civilians or civilian objects, mortars are not the most appropriat e weapon.

T he imprecise nature of mortars makes it difficult for an attacking part y using t his weapon in an area in which t here is a concentration of civilians to distinguish bet ween civilians and civilian object s and t he military objective of the attack, and t o limit it s effect s as required by int ernat ional humanit arian law. T herefore, t he use of such weapons wit h wide area effect s by P alestinian armed groups against t argets located in Israeli towns and villages, and t he possible indiscriminate effects, are likely to constitut e a violation of t he prohibi t ion of indiscriminat e at t acks. 159 103. T he use of mortars against military objectives located in populat ed areas also raises concerns wit h regard t o the principle of precaution in attack. Indeed part ies t o t he conflict must t ake all feasible precaut ions in t he choice of weapons wit h a view t o avoiding or at least t o minimizing incident al civilian loss of life. 160 b.

Tunnels 104. “All the time I was living in fear. So if my husband forgot to lock a door or window I was hysterical that someone would come in and take one of the children. Eventually we decided to move.”161 Israeli mot her 105. According t o t he IDF, they discovered 32 tunnels, 14 of which ext ended beyond t he Green Line int o Israel. 162 T he t unnels have been described by an IDF engineer as wide t unnels, in which a man can walk upright , dug deep beneat h t he surface wit h sides reinforced by layers of concrete and wit h internal communication systems. 163 In one tunnel, t hree motorcycles were allegedly found by t he IDF. One wit ness who had seen one of t he decommissioned t unnels said she was, “st ruck by t he complexit y of t he t unnel and how well-built it was wit h a solid cement st ruct ure and a full elect ricit y grid.” 164

156

157 158 159

160

161 162

163

164

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Al-Jazeera, report of 6 August 2014. Reproduced on M EM RI TV, available at: http://www.memritv.org/clip/en/0/0/0/0/239/0/4404.htm @Qassam_English Rome Statue, article 8 Article 51(4) Additional Protocol I. ICRC, Database on customary international humanitarian law, Rule 11 Article 57 Additional Protocol I. ICRC, Database on customary international humanitarian law, Rule 17 W040 IDF: Operation Protective Edge by the Numbers at: www.idfblog.com/blog/2014/08/05/operationprotective-edge-numbers/ Daniel Rubenstein, Hamas Tunnel Network: A Massacre in the M aking, Jerusalem Center for Public Affairs. http://jcpa.org/hamas-tunnel-network/ W076

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106. T he discovery of these tunnels and t heir use by P alestinian armed groups during t he host ilit ies caused great anxiet y among Israelis t hat t he t unnels might be used t o at t ack civilians. One wit ness t old t he commission, “When it ’s quiet we get even more afraid because we don’t know what t hings can come from the ground. Since April, everyone was afraid and uncomfort able about the tunnels.” Another witness said, “There was a t unnel just behind t he greenhouses. In a way, they are more scary than rockets because wit h t he tunnels t here’s no chance of being warned. Some people won’t let t heir children go out side.” 165 107. Official Israeli sources describe “cross-border t unnel at t acks” as one of “t wo primary means t o target Israeli civilians, 166 explaining that, “Hamas placed tunnel openings close t o resident ial communit ies in Israel”. T hey provided four examples of incident s in which members of P alestinian armed groups emerged from tunnel exits located bet ween 1.1 and 4.7 km from civilian homes. According to the Ministry of Foreign Affairs, i n all t hese cases t he members of armed groups encount ered IDF t roops “obst ruct ing t heir abilit y t o carry out at t acks against civilians.” 167 108. T he commission cannot conclusively det ermine t he int ent of P alest inian armed groups wit h regard t o t he construction and use of t hese tunnels. However, t he commission observes t hat during t he period under examination, t he t unnels were only used t o conduct at t acks direct ed at IDF posit ions in Israel in t he vicinit y of t he Green Line, which are legit imat e milit ary t arget s. A resident of a kibbut z locat ed 1.7 km from Gaza t old t he commission, “We hear t hat t unnels are most ly t o harm soldiers but t hat doesn’t st op families from being afraid”. 168 Anot her wit ness explained how he had not been allowed, even as an Israeli journalist following soldiers, to go into a t unnel as it was t oo dangerous, “because every t unnel has not one exit in and out , they have multiple hatches for Hamas t o be able t o surprise soldiers.” 169 109. T he UN Secret ary-General, briefing t he Securit y Council following his visit to Israel and t he OPT, which included a visit t o a t unnel built by Palestinian armed groups, stated, “I fully underst and t he securit y threat to Israel from rockets above and t unnels below. At t he same t ime, the scale of the dest ruction in Gaza has left deep quest ions about proportionality and t he need for account abilit y.”170 2.

Air strikes on residential buildings in Gaza 110. “I was sitting with my family by the table, ready to break the fast. Suddenly we were sucked into the ground. Later that evening, I woke up in the hospital and was told that my wife and children had died”.171 “This war was different from previous wars, especially for women. Civilians were attacked particularly in their homes. The home is the domain of the women […]. Women are dependent on the home for their purpose and existence. They are the primary caretakers of the home and responsible for raising the children, for cooking, cleaning, clothing. Without

165 166

167

168 169 170 171

W010 Israel, M inistry of Foreign Affairs Hamas Violations of the Law, p.1. Available at http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed on 30 M ay 2015.

Israel, M inistry of Foreign Affairs Hamas Violations of the Law, p.12. Available at http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed on 30 M ay 2015.

W006 Or Heller W072, October 2014; at: http://www.un.org/sg/statements/index.asp?nid=8120 W013.

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this habitat the women lose their sense of purpose, and their sense of control. The outside realm, the public, is the man’s sphere.”172 111. T he IDF carried out more t han 6 000 airst rikes in Gaza during t he 2014 Operat ion173 , from the first day t hroughout the Operation. These included t arget ed at t acks on resident ial and ot her buildings. As a result , according t o the Office for the Coordinat ion of Humanit arian Affairs (OCHA), during t he 2014 hostilities, 142 Palest inian families had t hree or more members killed in t he same incident owing t o t he dest ruct ion of resident ial buildings, for a t ot al of 742 fat alit ies. 174 An even higher figure is report ed by some nongovernment al organizations, which speak of 1066 people, including 370 children and 241 women, killed inside t heir homes. 175 In addit ion, IDF air strikes dest royed – in whole or in part – a significant number of houses. 176 112. T he commission examined in det ail 15 st rikes on resident ial buildings in t he Gaza St rip in which a t otal of 216 people were killed, including 115 children and 50 women. The commission conduct ed 37 interviews, reviewed confidential submissions from a variet y of st akeholders, government al and non-government al, and consult ed publicly available informat ion. T hese include phot os, sat ellit e imagery and video mat erials. All available mat erials relating t o each incident were reviewed by a milit ary expert to det ermine the t ype of weapons most likely to have been used. T he assessment included mat ching t estimony of wit nesses t o a variety of indicators, such as photographs of injuries t o persons, damage t o buildings and surroundings, and remnant s of weapons.

113. Homes and buildings dest royed as a result of t he air-land operat ion int o Shuja’iya, Khuza’a and Rafah (oft en due t o t ank or art illery shells) are discussed in t he chapt er on ground operat ions (V.A.3). T he present chapt er t herefore focuses on t hose resident ial buildings t hat were st ruck by what appears t o have been t arget ed air st rikes.

114. By let t er dat ed 10 February, t he commission asked t he Israeli aut horit ies for information “on several general issues and…clarifying t he factual circumstances of specific incident s”. The commission specifically inquired about 13 out of the 15 incidents examined in t his chapter as well as t he st rikes on high rise buildings in lat e August 2014. Israel was asked t o explain the specific cont ribut ion of each building t o t he milit ary act ions of t he P alest inian armed groups and how it s dest ruction represented a milit ary advant age for t he IDF; what were t he ranks and combat functions of members of armed groups if t hey were t he t arget of the attack; what precaut ionary measures, including warnings and t he choice of weapons, were employed; what was t he number of fat alit ies result ing from each of t he

172 173

174 175

176

32

W233.

Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 38 available at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf, accessed on 30 M ay 2015.

OCHA, Fragmented Lives, Humanitarian Overview 2014, M arch 2015, p. 6.

Al M ezan Center for Human Rights, Lawyers for Palestinian Human Rights (LPHR), 22 M ay 2015 up-date to a complaint submitted concerning large-scale destruction and damage to family houses in the Gaza Strip with associated profound loss of life and injury to Palestinian residents, during Israel’s military operation between 7 July 2014 and 26 August 2014, 30 September 2014, original complaint available at: http://lphr.org.uk/legal-projects/gaza-accountability-project/; Physicians for Human Rights comes to a similar conclusion on the basis of their interviews with injured persons. Physicians for Human Rights, Findings of an Independent M edical Fact-Finding M ission, Gaza 2014, p. 36. At https://gazahealthattack.files.wordpress.com/2015/01/gazareport_eng.pdf. From now on referred to as Physicians for Human Rights, Findings of an Independent M edical Fact-Finding M ission, Gaza 2014.

UNITAR-UNOSAT speaks about “wide-spread destruction”; see: Impact of the 2014 Conflict in the Gaza Strip. UNOSAT Satellite Derived Geospatial Analysis, 2014, p. 11. At: https://unosat.web.cern.ch/unosat/unitar/publications/UNOSAT_GAZA_REPORT_OCT2014_WEB. pdf.

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incident s; and whet her any investigat ions had been initiated in relation to t hese st rikes. No response was received from t he Government of Israel. Therefore, to the extent possible, t he commission assessed mat erials that are in the public domain. In particular, Israel published information on 8 attacks on homes that were examined by t he General St aff Mechanism for Fact -Finding Assessment s (FFAM) and t he Military Advocate General (MAG), 3 of which are discussed in t he present chapter 177 . The MAG’s findings are referred to in t he relevant sect ions of t he t ext . a. (i).

Airstrikes on buildings Al Hajj family home and neighbouring houses: 115. On 10 July 2014 at around 2 a.m., t he house of Mahmoud Al Hajj in Khan Younis was bombed, and all 8 members of t he Al Hajj family 178 present were killed, including 2 children and 3 women. T he bombing complet ely dest royed t he house and damaged neighbouring houses of ot her members of the Al Hajj family, as well as t he houses of t he Al At hamna, Abu Libda and Shakshak families. 179 According t o the wit nesses int erviewed by t he commission, 20 people were injured180 , including 7 women and 4 children. T he injured included at least 7 Al Athamna family members, 8 Al Halbi family members, and 2 Abu Libda family members. 181 116. T he Al Hajj house was a t wo-st orey building of 135 m 2 . P hot os reviewed by t he commission show t he complet e dest ruct ion of t he house and considerable damage t o surrounding buildings182 . On t he basis of t he available materials, which include t est imonies and pict ures of t he sit e and of remnant s of weapons, t he commission considers t hat t he weapon used was most likely a Joint Direct Attack Munition (JDAM) -guided bomb, eit her a GBU Mk 82 (500lbs) or GBU Mk 83 (1000lbs).

117. T he commission interviewed t wo wit nesses who were in neighbouring houses at t he t ime of the attack. One, a member of the Al Hajj family who lived about 50 met res sout h of t he house, recounted t hat he heard sounds from a plane 183 , followed by a large blast at 1.30 a.m. A second blast followed a few seconds lat er 184 shattering t he doors and windows of the wit ness’ own house. T he wit ness went outside and saw people heading nort h t o his sist er’s house. When he arrived at the attacked house, he was shocked t o see the Mahmoud Al Hajj family home completely dest royed, with all members of t he family killed and covered by rubble and dust . According t o t he wit nesses, t went y neighbouring houses, including t hose of t he Abu Libda and Shakshak families were partially dest royed by t he att ack. 185 While 6 bodies were ident ified when pulled out from beneat h t he rubble, t he remains of 2 of t he

177

One of them, Shuja’iya market, is discussed in chapter V.A.3 on ground operations.

W078 and W077. See Al Wattan News, - ‫ بيتًا‬30 ‫ أفراد ودمار‬8 ‫ مجزرة "الحاج" تودي بحياة‬...‫ بالفيديو‬:"‫ خاص لـ "وطن‬, 15 July 2015 and Gaza TV, ‫استشهدوا و هم نيام و دون سابق تحدير‬, 10 July 2014, at .

179 W078 and W077. B’Tselem, Black Flag, January 2015.http://www.btselem.org/gaza_strip/2015_black_flag/al_haj_family 180 Palestinian Center for Human Rights (PCHR) reports 19 injured.

181 W078 and W077. PCHR submission including list of persons killed and injured during the incident.

B’Tselem, Black Flag, January 2015.

182 See photos on B’Tselem, Bombing of al-Haj home, Khan Yunis, 28 January 2015, at: http://www.btselem.org/gaza_strip/2015_black_flag/al_haj_family and PCHR submission including pictures of the site and of the remnants of weapons, drawing of the site and affidavits from witnesses.

183 PCHR submission.

184 W078.

185 W078.

178

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children were complet ely oblit erat ed as a result of t he blast . 186 T he wit ness t old t he commission: “It was difficult to reach the victims because the house was totally destroyed. So, with a few other men, I kept looking for survivors. I found my sister who was thrown to what used to be the street outside her house. When I pulled her out she was unconscious and her right leg was amputated. Another man helped me and we took her to the hospital in a private car. There the doctors tried to save her life but she died aged 55. “187 118. T he commission also spoke to another witness from t he Al Athamna family, whose house is locat ed across t he street from the Al Hajj family home and also sust ained damage.

He was at home during t he attack and described a “fire ball” from the direction of t he west hit t ing t he house of t he Al Hajj family, causing enormous dest ruct ion t o it and t o t he adjacent houses of several Al At hamna family members. 188 Several of his own relat ives were injured; t he wife of his brot her Mahmoud, Rajaa Al Athamna, aged 29, was pulled out alive from t he rubble aft er half an hour, but she now suffers from amnesia and cannot recognize anyone from her family. 189 119. Bot h wit nesses indicated t hat t he Al Hajj house was sit uat ed in a resident ial area, free from any military activity and t hat there had been no “roof -knock”190 warning. One of t hem said t hat about one week aft er t he at t ack on t he Al Hajj house, ot her houses in t he vicinit y were target ed but in those cases the families had been warned by phone calls of an imminent attack. 191 According to the Intelligence and Terrorism Information Centre, one of t he persons killed on 10 July 2015 was a member of t he Al Qassam Brigades192 .

120. T he commission cannot det ermine wit h cert aint y whet her or not a warning was issued, because all t he people inside t he house during t he at t ack were killed. (ii)

Al Qassas family building 121. On 21 July at around 4.30 p.m., two IDF missiles launched from t he air hit t he t op floor of the Al Qassas family five-storey building killing 9 people including 6 children and 3 women, one of t hem pregnant. Another 10 people were injured including 8 children and 1 woman. T he youngest injured child was a baby who sust ained burns t o t he face. 193 122. T he Al Qassas house is locat ed in t he Shuja'iya neighbourhood, close t o t he Al Jamal Abdel Naser st reet and t he Al T ayam square. At t he t ime of t he at t ack about 41 persons resided in t he building. In addit ion t o 24 family members who habit ually lived in t he building, anot her 17 relat ives were st aying t here having fled t heir homes in t he al Zeit oun and Shuja'iya neighbourhoods aft er t he IDF dist ribut ed leaflet s warnin g resident s t o leave. 194 The top floor was t he home of Yasser Al Qassas, his pregnant wife Somaya, and

186 187 188 189 190 191 192

193 194

34

W078.

W078.

W077.

W077 See para. 235 W078 Intelligence and Terrorism Information Center. Preliminary, partial examination of the names of Palestinians killed in Operation Protective Edge; 28 July 2014 at http://www.terrorisminfo.org.il/en/article/2070828 July 2014 , p. 17 ; at http://www.terrorisminfo.org.il/Data/articles/Art_20687/E_124_14B_472268844.pdf PCHR submission. See also B’Tselem, Black Flag, January 2015.

B’Tselem, Black Flag: The Legal and M oral Implications of the Policy of Attacking Residential Buildings in the Gaza Strip Summer 2014, January 2015, at

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t heir nine children. The family was preparing for the iftar meal, the breaking of t he fast at sunset , when t he at t ack t ook place. 195 123. T he commission spoke with two family members. One of them, who was present at t he t ime of the attack, told t he commission t hat most male relatives were not actually in t he building at t hat time because t hey had rushed t o the Daood Tower, about 300 m et res away, which had been st ruck a few minut es earlier. 196 The witness, who st ayed on t he fourth floor, said t hat shortly after t he men had left , t wo missiles hit t he fift h floor of t he Al Qassas building wit hin an interval of a few minut es. T he same wit ness indicat ed t hat he was not aware t hat any advance warning had been given. 197 Another family member interviewed by t he commission arrived at t he house t o find t hat his t wo daught ers aged 13 and 14 had died. 198 According t o information t he commission received, five people who were in t he st airway at t he t ime of t he at t ack were injured. 199 124. None of t he informat ion collect ed by t he commission suggest s t hat t here was a milit ary t arget in t he Al Qassas building. T o dat e, t he IDF has not made st at ement s ident ifying t he military objective of the strike, nor has it list ed t his incident among t hose under invest igat ion.

125. According t o t he commission’s assessment , made on t he basis of an analysis of plans of t he building and phot os of the destroyed east ern part of t he apart ment and of t he walls of t he northern part of the building wit h remnants of shrapnel 200 , t he IDF appears t o have used Hellfire missiles. T he met hod of t he project ile’s ent ry int o t he building, it s t rajectory, the small opening it created and t he blast effect visible on the eastern side of t he building, along wit h t he extensive shrapnel damage observed, are consistent with the use of Hellfire Missiles201 . (iii)

Al Najjar home 126. “I was staying on the first floor and I was the only survivor from the first floor.

When the attack took place, I was knocked out. I woke up at about 6 or so, in the hospital, and I later learnt that my sister, my mother and my children had all died. Even many of my relatives on the second floor had died. We all died that day, even those who survived.”

Wit ness int erviewed by t he commission 202 127. At 2.53 a.m. on 26 July, t he Al Najjar family home in Khan Younis in sout hern Gaza was bombed. 203 Ninet een members of t he same family, including 11 children and 5

195 196 197 198 199

200 201

202 203

http://www.btselem.org/download/201501_black_flag_eng.pdf. From now on referred to as B’Tselem, Black Flag, January 2015.

W137.

W136.

W136. See also B’Tselem, Black Flag, January 2015.

W137.

Photo of the scene of the incident with marks of where people were killed and injured submitted by PCHR ; Ann Paq photos on B’Tselem web-site: http://www.btselem.org/download/201501_black_flag_eng.pdf PCHR submission.

These conclusions are based on witness statements and submissions which include building plans, photos of the site and of remnants of weapons.

W277.

Note that this case is different from the one examined by the M ilitary Advocate General, which discusses an incident that occurred on 29 July 2014; IDF M ilitary Advocate General's ('M AG): Decisions of the IDF M AG Regarding Exceptional Incidents that Allegedly Occurred During

35

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women, were killed during t he at t ack. 204 T he youngest vict im was an eight -mont h-old baby. Five people present in t he house sust ained moderat e and crit ical injuries. 205 128. T he commission spoke wit h four wit nesses t o t his at t ack, including t hree eyewit nesses, who were all t aken t o t he hospit al aft erwards. One of t hem was a resident of Jawar, locat ed about 1 km from the Green Line. On 18 July, the wit ness and his family had fled from t heir own home because of intensified fighting in the area and gone t o his sist er’s house in Khan Younis. T hey had been at his sister’s house for one week at t he t ime of t he at t ack. 206 The wit nesses concurred t hat the strike t ook place at 2.53 a.m. Two said t hat they remember t he precise t ime because it was only a few minut es aft er t hey got up t o have suhhur, t he last meal of t he day during Ramadan unt il t he breaking of t he fast in t he evening. 207 129. A fourt h wit ness, who had been in a neighbouring house when t he at t ack occurred, said t hat he could not see anything because t he building was covered by a cloud of dust and debris. P eople st arted walking t o t he house looking for survivors but t hey realized t hat t he ent ire building had been dest royed. 208 As he was searching t hrough t he debris, t he wit ness came across t he bodies of many family members. Everyone in his family died wit h t he except ion of one of his brothers. Many of the bodies were unrecognizable when t hey were pulled out of t he rubble. 209 130. T wo of t he witnesses reported t hat there was no warning, no “roof -knock” missile, no phone calls, and no leaflets. According t o them, no one in the family is affiliated wit h an armed group. 210 Anot her wit ness also denied t hat the house was host ing armed act ivit y or t hat t he at t ack had been preceded by warnings: No militias or fighters walked into our home or sought refuge in our home. None of us were fighting. We were not told that we would be attacked. We all got up to do the suhhur and nobody was expecting this. We did not have any reason to believe this attack was going to take place. No warning and no information was given. The attack came just like that. And I am still trying to understand why, given that I lost all of my family in this attack while all of them were sleeping.211 131. P hot os t aken aft er t he at t ack show a large crat er where t he house had st ood before. 212 T he wit ness t estimonies all describe immense devast at ion. Dest ruct ion at such scale appears t o be t he result of a large bomb, very likely a 1000lb or 2000lb-bomb.

204 205

206 207 208 209 210 211 212

36

Operation 'Protective Edge'- Update No. 4 of 11 June 2015; at http://www.law.idf.il/163-7353en/Patzar.aspx W273.

PCHR: On the 19th Day of the Israeli Offensive on Gaza 26 July 2014 at: http://www.pchrgaza.org/portal/en/index.php?option=com_content&id=10539:on-the-19th-day-ofthe-israeli-offensive-on-gaza-before-declaration-of-humanitarian-truce-israeli-forces-escalatedattacks-against-palestinian-civilian20-members-of-one-family-including-11-children-and-5-womenkilledisraeli-forces-attack-medical-cre&Itemid=194; OCHA, Occupied Palestinian Territory: see also Gaza Emergency Situation Report (as of 26 July 2014, 1500 hrs). At http://www.ochaopt.org/documents/ocha_opt_sitrep_27_07_2014.pdf.

W277.

W 034 and W276.

W034.

W034.

W276 and W034.

W277.

See e.g. Huffington Post, Shocking Photos of Destruction in Gaza as Thousands Return Home During Truce, 26 July 2014. At http://www.huffingtonpost.com/2014/07/26/gaza-destruction-

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(iv)

Abu Jabr family home 132. On 29 July at 12.30 a.m., a bomb was launched on t he Abu Jabr family home in t he Al Buraij refugee camp. Ninet een people 213 were killed and seven injured. Sevent een family members inside the house died including 6 children aged bet ween one and four, and six women, one of whom was pregnant. Two other people who were visit ing t hat evening wit h a member of t he Abu Jabr family were killed as well. 214 Out of the 7 persons injured 3 were children and 4 were women. 215 T he house was completely dest royed as a result of t he at t ack. According t o B’T selem and wit nesses int erviewed by t he commission, several different part s of Al Buraij camp were at t acked during t hat night . 216 133. T he Abu Jabr house is locat ed on Abu Al Sa’ud St reet in t he Deir al Balah Governorat e in central Gaza St rip. The 120 m 2 house had t wo floors and was comprised of several apart ment s belonging t o members of t he Abu Jabr family. 217 134. T he commission interviewed a wit ness whose fat her and uncles owned t he building and who arrived at t he scene 15 minutes after t he at t ack. 218 Upon arrival he followed t he t races of smoke and went in to look for his parents, his brot her and t he rest of his family.

He described a 7-met er deep hole where t he house had been, leaving only rubble and cement blocks piled on top of each other.219 The witness recounted how he began t o search for survivors and how he lat er found out t hat his daught er and wife were killed in t he at t ack. What he saw was “beyond imaginat ion”: I found the decapitated bodies of my uncle and daughter. My cousin was alive but died on the way to hospital. Another cousin’s body was found sliced in two. We had ten corpses in the first ambulances. No other survivors were found. […] After having removed the cement I identified my cousin Dina’s body. What I witnessed was horrible. She was 9 months pregnant and she had come from her home to her parents’ house to have her baby. We could not imagine that she had passed away. Her stomach was ripped open and the unborn baby was lying there with the skull shattered. We kept searching for other corpses and found my uncle’s wife. We had great difficulty removing all the pieces of cement from her body.220 135. T he wit ness managed t o extract some of t he survivors from t he ruins. Most of t he family members’ bodies had been cut int o pieces or pulverized by t he at t ack. T he injured and dead were brought t o Al Aqsa hospit al. Upon arrival t he wit ness realized t hat some family members were missing. He said t hat, to his knowledge, t he area was resident ial and inhabit ed mainly by women and children. He was not aware of the family’s having received any warnings t o evacuat e. He said t hat at times inhabitants are warned by small rocket s but not his family. 221 T hese account s, including t he absence of “roof-knock” warnings, are

213

214 215

216 217

218 219 220 221

photos_n_5623908.html; The Guardian: Gaza counts the cost of war: 'Whole families smashed under the rubble'; 15 August 2014. At: http://www.theguardian.com/world/2014/aug/15/-sp-gaza-countscost-of-war-whole-families-smashed-under-the-rubble.

See also list at B’Tselem, Bombing of three houses belonging to the Abu Jaber family in al-Bureij, at http://www.btselem.org/gaza_strip/2015_black_flag/abu_jaber_family.

B’Tselem, Black Flag, January 2015.

PCHR submission. See also information available from B’Tselem, Black Flag, January 2015.

Information on pregnant woman provided by W127.

W127.

W127. PCHR submission including building plans. B’Tselem describes it as consisting of two houses.

W127.

B’Tselem, Black Flag, January 2015.

W127.

W127.

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support ed by int erviews conduct ed by B’T selem wit h wit nesses who were present in t he proximit y of t he house during t he at t ack 222 .

136. P hot os submit t ed t o t he commission by different sources, including of children showing one boy wit h fract ures and serious shrapnel and burn injuries, indicat e t hat t he house was complet ely dest royed. 223 On the basis of an analysis of pictures and t estimonies, t he commission concluded t hat the house was most likely levelled by t he impact of either a GBU31 JDAM equipped 2000lb bomb or a GBU32 JDAM equipped 1000lb bomb. (v)

Al Hallaq and Ammar family homes 137. On 20 July 2014 at around 6.45 p.m., several air launched project iles hit t he Al Hallaq family apartment in the Al Remal neighbourhood of Gaza cit y, killing 7 members of t he Al Hallaq family, including 3 children (one of t hem a one mont h old baby) and 3 women (one of whom was pregnant ).224 Four children of t he Ammar family who lived in t he apartment underneath were also killed. 225 Five Al Hallaq family members were injured, including one child. 226 138. T he Al Hallaq apart ment was locat ed on t he second floor of t he Cordoba t ower, St reet one, in the west ern part of Gaza city.227 The building has 10 floors; 5 apart ment s on t he first and second floors were t otally or partially dest royed by t hree missiles. 228 According t o one of the witnesses, the t hird missile did not explode. 229 The missile st rikes result ed in t he collapse of t he east ern wall of t he building. 230 139. T welve people were in the Al Hallaq apartment at the time of the attack, including 9 family members who were t aking shelt er in t he flat having fled t heir homes in ot her neighbourhoods. 231 Anot her 12 persons were present in t he Ammar family home. 232 140. T he commission spoke t o t wo survivors from t he Al Hallaq family. One of t hem said t hat , because of int ensified shelling very early t hat morning, his family had left t he Shuja'iya neighbourhood along wit h many residents of t he area. At 7 a.m. t he family had moved t o an apartment in t he Al Remal neighbourhood t hat belonged t o members of t he ext ended family. The apartment was locat ed on the second floor in a nine-st orey building, in an area which t he family perceived as t he “safest place in Gaza” because it was far away from t he Green Line. 233 141. T he eyewit ness said t hat at 6.30 p.m. all 12 members of t he family were at home, preparing t o break the Ramadan fast.234 While the women were busy in t he kitchen, the men

222

223 224

225

226 227 228 229 230 231 232 233 234

38

Haniya Abu Jaber, who was present in the house at the time of the attack and Nihad Abu Jaber, who was in the house next door. B’Tselem, Black Flag, January 2015.

Confidential submission 49.

Watania Palestinian news agency footage shows the victims’ evacuation: https://www.youtube.com/watch?v=ehd1kXdDtwo.

W082. See also: Amnesty International, Families under the rubble, November 2014. At: https://www.amnesty.org/en/documents/M DE15/032/2014/en/. From now on referred to as Amnesty International, Families under the rubble, November 2014.

PCHR submission.

PCHR submission.

W082.

PCHR submission.

Amnesty International, Families under the rubble, November 2014.

W082. See also Amnesty International, Families under the rubble, November 2014.

Amnesty International, Families under the rubble, November 2014.

W081.

W082.

A/HRC/29/CRP.4

were wat ching t elevision in t he living room, and some were in t he bedroom. Suddenly, t here was a loud explosion. The witness said t hat the missile, which came from t he east ern side, first hit the room where t he children were playing, causing a large hole of 2 met ers before it landed in t he apart ment below and killed t hree children in t hat apart ment . 235 Information concerning the damage t o t he building is support ed by phot os submit ted t o t he commission. 236 142. T he second survivor confirmed t hat the family had moved to that apartment because t hey considered t he area t o be t he safest place in Gaza, an assumpt ion t he family made based on leaflet s and phone calls received from Israelis. The wit ness explained t hat in t he first days of t he conflict t he family had received recorded IDF voice messages on t heir mobile phones direct ing t hem to move to the centre of Gaza. At the time of t he at t ack, t he wit ness was wat ching t elevision in t he living room when at around 6.45 p.m. a missile killed 7 of his family members. The witness t hen t ried t o evacuat e t he 4 ot her survivors; while he was walking down t he st airs he heard a second explosion in t he apart ment , which he t hought was t he result of a second missile. 237 143. Neit her eyewitness was aware of any warnings prior to t he at t ack and t hey insist ed t hat there had been no military activity in t he building. One wit ness said t hat t his was t he first t ime the area was t argeted during t he military operat ions in 2014 and t hat he did not know t he reason for t he at t ack. He added t hat t he Al Remal neighbourhood is known as very peaceful and resident ial. 238 He also said t hat t he area is t oo far from Israel t o dig t unnels. 239 The same witness claimed t hat no family member belongs t o t he “P alest inian resist ance”. 240 144. In t he commission’s assessment, based on phot ographs of the site and of remnants of weapons and on eyewit ness t est imony, t he building appears t o have been t arget ed by precision guided AGM 114 Hellfire missiles. This weapon can be programmed t o penetrate a cement building before det onat ing and t ypically causes t his kind of damage 241 . (vi)

Balat ah home 145. “There were no warnings, no calls and no messages. Where is the humanity? Where is justice? And where is the United Nations who is meant to protect peoples’ humanity?”

A wit ness int erviewed by t he commission 242 146. On 29 July at approximately 4 p.m.243 , t he house of t he Balat ah family in Hay Al Qasasib St reet in the Jabaliya refugee camp in Nort h Gaza was st ruck. At t he t ime of t he at t ack, Abdel Karim Balat ah was host ing his ent ire family as well as t he family of his brot her Naim Balatah and his son Nazami.244 In total, 17 people were in t he house. 245 T he at t ack result ed in t he killing of 11 members of t he Balat ah family, 5 of whom were

235 236 237 238 239 240 241

242 243

244 245

W082.

PCHR submission.

W082.

W081.

W082.

PCHR submission.

This is consistent with findings by Amnesty International, Families under the rubble, November 2014.

W125.

Time varies between 3 and 4.30 p.m.; B’Tselem states 3 p.m. see: B’Tselem, Black Flag, January 2015. http://www.btselem.org/gaza_strip/2015_black_flag/balata_family W125.

W124. See also B’Tselem, Black Flag, January 2015.

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children, including a one-year old baby 246 , and 5 women. 247 The Balatah family house and several neighbouring houses were ext ensively damaged, and 41 civilians, including 17 children and 5 women, were wounded. 248 147. T he commission int erviewed surviving members of t he Balat ah family who wit nessed t he st rike. 249 The survivors t old t he commission that, at the time of the attack, the family had just finished a long meal in honour of the second day of the Eid, and most of the family members were taking a nap. At least two missiles st ruck the Balatah family home in t he span of a few minut es.

148. One of t he wit nesses said t hat the sound of a large explosion woke him up. He t hen saw a lot of smoke in t he court yard, but could not ident ify where it originat ed. As he st epped out of t he house into the courtyard, anot her missile hit t he house. T he explosion was so powerful t hat it creat ed a large vacuum effect and t he wit ness felt his body being pulled by a st rong “suct ion” effect generated by t he explosion. 250 The wit ness t hen quickly ret urned t o the house t o look for his family members, only to find t he body of his 8-year old nephew lying unconscious on t he ground wit h his st omach and his head cracked open and t he dead body of his one-year old grandson in t he room upst airs.

149. T he wit ness tried to stop t he young boy’s bowels from falling out with his hands. 251 T he wit ness also described how his wife collapsed when she saw her severely injured grandson. T he wit ness fainted as he was accompanying his wife t o a nearby school which had been t ransformed into a shelter. When he regained consciousness, he found himself at t he Kamal Edwan hospit al. T he wit ness t old t he commission: “I am 52 years old and I have lost everything I cared for. In only a few minutes, they killed everyone and everything that was dear to me. They killed my dream, and my daughter’s dream who wanted to be a doctor.” 252 150. According t o t he witnesses, all of those killed were civilians. 253 The wit nesses were not aware of any warning preceding t he at t ack. In fact , t he brot her and his family had sought refuge wit h Abdel Karim Balat ah’s family precisely because t he IDF had warned his family earlier in t he day t o evacuat e his own house in Jabal iya camp. 254 151. It appears that the east ern part s of t he house were repeat edly hit . As a result , t he walls bet ween t he st aircase and the hallway, as well as t hose bet ween t he living room and bedroom were dest royed. 255 According t o the information available to the commission, t he damage t o t he building is most likely to have been caused by an AGM 114 Hellfire Missile launched by an aircraft . Given t hat a precision guided munit ion was probably used, it appears t hat the house was specifically t arget ed. T his assessment is compat ible wit h t he wit ness’s comment about being “sucked in”, as t he out ward blast of a high explosive 246 247 248

249 250 251 252 253 254 255

40

W125.

See also list at B’Tselem, Black Flag, January 2015 and PCHR submission PCHR, On the 19th Day of the Israeli Offensive on Gaza: 26 July 2014. At: http://www.pchrgaza.org/portal/en/index.php?option=com_content&id=10539:on-the-19th-day-ofthe-israeli-offensive-on-gaza-before-declaration-of-humanitarian-truce-israeli-forces-escalatedattacks-against-palestinian-civilian20-members-of-one-family-including-11-children-and-5-womenkilledisraeli-forces-attack-medical-cre&Itemid=194.

W124 and 125.

W124.

W125 W125.

W124.

W124.

The PCHR submission includes maps, pictures, building plans and affidavits from family members.

A/HRC/29/CRP.4

det onat ion causes a vacuum, and t he air rushing back in t o fill t he vacuum could lead a person close by t o such a percept ion.

152. T he commission has not received any informat ion suggest ing t hat t here was a milit ary target in t he house, and t o dat e, t he IDF has made no st at ement concerning t he incident . It appears t hat no warning was issued. (vii)

Al Dali Building 153. On 29 July at around 7.30 a.m., an Israeli aircraft dropped an aerial bomb on t he Al Dali building in Khan Younis, where t he Abu Amr, Breikah, Al -Najjar and Mu’ammar families lived. 256 The st rike resulted in t he complete dest ruction 257 of t he Al Dali building and serious damage t o adjacent buildings. At least 33 people inside t he house were killed, including 18 children and 6 women 258 . In addit ion, t he damage caused by t he at t ack t o adjacent houses reportedly killed one member of the Al-Ramlawi family, a girl aged 9 259 , and a member of t he Abu Sit t a family 260 . Anot her 21 people were injured, including 4 children, several of t hem crit ically. 261 154. T he Al Dali building consist ed of four apartments located on three levels including a basement . 262 At least 37 people were in the building at t he time of the at t ack, which killed 15 members of t he Abu Amr family, 7 members of the Breikah family263 , 7 members of the Al-Najjar family 264 , and 4 of t he Mu’ammar family.

155. T he commission spoke t o t hree wit nesses t o t his at t ack, all from t he Abu Amr family. All indicated t hat there had been no warnings before t he strike. One of t he witnesses who lives next door and arrived at the scene moments after the attack, stat ed, “I can assure you that my family received no warning of an incoming attack, or else they would have immediately informed me, given I live next door.” 265 Anot her wit ness, who was not at home at t he time of the attack, told t he commission that “nobody was doing anything to threaten; nobody was resorting to violence”. T he witness kept pausing and saying t hat, whenever he t hinks of t hat at t ack, he is reminded of t he images of t he bodies of children scat t ered everywhere. He explained t hat people were dest royed not only physically, but also emot ionally and psychologically. 266

256

257

258

259

260 261 262 263 264

265 266

Amnesty International, Families under the rubble, November 2014. See also B’Tselem, Bombing of al Dali Building, 28 January 2015, at http://www.btselem.org/gaza_strip/2015_black_flag/a_dali_building.

See e.g. photo at B’Tselem, Bombing of al Dali Building, 28 January 2015, at http://www.btselem.org/gaza_strip/2015_black_flag/a_dali_building.

B’Tselem, Black Flag, January 2015. See also Amnesty International, who reports 34 persons killed Amnesty International, Families under the rubble, November 2014.

B’Tselem, Black Flag, January 2015. See also: Amnesty International, Families under the rubble, November 2014.

Amnesty International, Families under the rubble, November 2014.

W045.

Amnesty International, Families under the rubble, November 2014.

6 according to B’Tselem, Black Flag, January 2015.

Note that M AG up-date 4 refers to an aerial attack that killed 8 members of the Al Najjar family in Khan Younis on 29 July. However, the number of persons killed in the Al Dali building is reported to be much higher than the figures put forward by the M AG. The commission could therefore not determine whether the M AG addressed this case. Decisions of the IDF M AG Regarding Exceptional Incidents that Allegedly Occurred During Operation 'Protective Edge'- Update No. 4, 11 June 2015.

W275.

W045.

41

A/HRC/29/CRP.4

156. Given t he scale of dest ruct ion visible on phot os 267 and t he t est imonies, crosschecked wit h ot her available informat ion, it appears t hat t he weapon used was a large bomb, most likely a JDAM equipped 2000lb bomb. 268 157. Amnest y International identified 33-year old Ahmad Mu’ammar, who was killed in t he at tack, as a member of the engineering corps of the Saraya Al Quds Brigades, t he armed wing of Islamic Jihad. A relative of Mu’ammar told Amnesty that he had an office at home, and remnants of a gun and a grenade-launcher were reportedly found in t he rubble aft er t he at t ack. 269 (viii)

Al Bat sh house 158. On 12 July at around 9.30 p.m., at the time of the evening prayer, an airstrike carried out by IDF planes dest royed t he t wo-st orey house of Majed Al Bat sh in t he T uffah neighbourhood of Gaza cit y. Two adjacent houses belonging t o t wo brot hers of Majed Al Bat sh and a t hird house belonging t o a neighbour were also severely damaged. At least 17 people were killed immediat ely 270 , while one person died on 24 July as a result of his injuries. T he dead included 6 children and 3 women, one of whom was pregnant . 271 According t o t he Ministry of Healt h, quot ed in t he media, 45 people were injured. 272 Al Mezan count ed 16 injured273 , while P hysicians for Human Right s report s more t han 50 injured274 .

159. One family member told t he commission that t he family had gat hered in t he house as is t he cust om during Ramadan. He had been in a nearby mosque when he heard planes, and had just come home and was praying when t he attack began. 275 Another family member said t hat he was in t he house wit h his cousins at the time of the strike, but he only realized what had happened when he woke up one week lat er in t he hospit al. He lost his right leg and t he sight in his left eye. 276 T he wit nesses said t hat five of t he women could not be

267 268 269 270

271

272

273

274 275 276

42

B’Tselem, Black Flag, January 2015.

This was also found by Amnesty International, Families under the rubble, November 2014.

Amnesty International, Families under the rubble, November 2014.

W002 and W003. B’Tselem provides a list of 18, including one person who died later as a result of his injuries; at: B’Tselem, At Sa’eed al hadad relates bombing of al-Batsh home in Gaza City no prior warning, which killed 18 family members, at http://www.btselem.org/testimonies/20140716_al_batsh; According to Al Mezan, 17 persons from the Al Batsh family died. See list of those killed in press release at Al Mezan, Gaza Diaries: 1: Airstrike Wipes out 17 from Al Batsh Family; an Outright War Crime, 13 July 2014, at http://www.mezan.org/en/post/19222/Gaza+Diaries%3A+1%3A+Airstrike+Wipes+out+17+from+A l+Batsh+Family%3B+an+Outright+War+Crime; Physicians for Human Rights stated that 16 persons present inside the house and 3 in neighbouring buildings and another unspecified person died See list of those killed in press release. Physicians for Human Rights, Findings of an Independent Medical Fact-Finding Mission, Gaza 2014, p. 134.

W002 and W003. See also Al M ezan, Gaza Diaries: 1: Airstrike Wipes out 17 from Al Batsh Family; an Outright War Crime, 13 July 2014, at http://www.mezan.org/en/post/19222/Gaza+Diaries%3A+1%3A+Airstrike+Wipes+out+17+from+Al +Batsh+Family%3B+an+Outright+War+Crime.

Reuters, Gaza death toll rises; Hamas fires rockets at Tel Aviv, 12 July 2014, at http://uk.reuters.com/article/2014/07/12/uk-palestinians-israel-idUKKBN0FB08120140712.

Al M ezan, Gaza Diaries: 1: Airstrike Wipes out 17 from Al Batsh Family; an Outright War Crime, 13 July 2014, at http://www.mezan.org/en/post/19222/Gaza+Diaries%3A+1%3A+Airstrike+Wipes+out+17+from+Al +Batsh+Family%3B+an+Outright+War+Crime.

Physicians for Human Rights, Findings of an Independent M edical Fact -Finding M ission, Gaza 2014.

W001.

W002.

A/HRC/29/CRP.4

buried because t heir bodies had "evaporat ed", indicat ing t hat t he blast disint egrat ed t he bodies. T he eyewit ness said t hat no warning was given prior t o t he at t ack 277 .

160. On 14 July, t he media reported that an IDF spokesperson said that t he bombing was being “looked int o” 278 . Some media claimed t he t arget of t he at t ack was t he Gaza police chief, Major General Tayseer al-Batsh, who was visit ing his cousin Majed at the time of the at t ack. 279 He was severely injured but survived. On 28 July t he IDF dropped leaflet s in Gaza cit y cont aining a list of persons who confront ed t he IDF and were killed. T he list includes t he names of Nahid Naim Al Bat sh and Yazid Al Bat sh. 280 According t o t he Int elligence and Terrorism Information Center, Bahaa Majed Al Bat sh and Jalal Majed Al Bat sh were affiliat ed wit h t he Al Qassam Brigades. 281 All of t hem appear t o have been killed during or as a result of t he at t ack 282 .

T he commission does not have sufficient informat ion t o det ermine wit h cert aint y which weapon was employed, but , given t he t est imonies about it s effect s, it is likely t hat t wo JDAM equipped bombs (eit her 1000lb or 500lb) were used. (ix)

Abu Jama family home 161. On 20 July, at around 7.50 p.m., as t he family was breaking t he fast , a bomb was dropped on t he t hree-storey home of t he Abu Jama family in Abu Safar, an area near t he al Zanneh neighbourhood of Bani Suheila, east of Khan Younis. 283 Of the 29 people who were in t he house, 26 were killed, including 19 children and 5 women, 3 of whom were pregnant . 284 162. T he t hree-st orey building in Bani Suheila, east of Khan Younis, covered 250 m2 wit h t wo apartments on each floor. Five brot hers and t heir families lived in t he building, which had a t ot al of 60 residents. 285 At the time of the attack, the families of four brot hers, T awfiq, Tayseer, Basem and Yasser, were in the building. 286 Twenty-five Abu Jama family members died, as well as Ahmad Sahmoud. 287 T ayseer was in a nearby mosque at the t ime

277

278

279

280

281

282

283 284

285

286 287

The witness’s account is corroborated by Physicians for Human Rights, Findings of an independent medical fact-finding mission, 2014.

Al Jazeera, Thousands of families flee north Gaza, 14 July 2014, at http://www.aljazeera.com/news/middleeast/2014/07/thousands-families-flee-north-gaza2014713131352463357.html.

Al Jazeera, Thousands of families flee north Gaza, 14 July 2014, at http://www.aljazeera.com/news/middleeast/2014/07/thousands-families-flee-north-gaza2014713131352463357.html; Reuters, Gaza death toll rises; Hamas fires rockets at Tel Aviv, 12 July 2014, at http://uk.reuters.com/article/2014/07/12/uk-palestinians-israel-idUKKBN0FB08120140712; The New York Times, Palestinians Flee Northern Gaza as a Cease-Fire Appears Elusive, 13 July 2014, at http://www.nytimes.com/2014/07/14/world/middleeast/israel-gaza.html.

Leaflet submitted to the commission. An OHCHR report also makes reference to the two Al Batsh names on this leaflet: A/HRC/28/80/Add.1 at www.ohchr.org/.../PS/A.HRC.28.80.Add.1.doc Intelligence and Terrorism Information Center. Preliminary, partial examination of the names of Palestinians killed in Operation Protective Edge; 28 July 2014 at http://www.terrorisminfo.org.il/en/article/20708 B’Tselem, At Sa’eed al hadad relates bombing of al-Batsh home in Gaza City no prior warning, which killed 18 family members, at http://www.btselem.org/testimonies/20140716_al_batsh Submission 5.

Submission 5; B’Tselem reports 25 killed; B’Tselem, Black Flag, January 2015. Note that the M AG refers to different NGO figures that the commission was unable to confirm.

Interview conducted by the commission with W013. B’Tselem stated that 37 persons living in the building.

Submission 5.

Submission 5.

43

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of t he attack.288 Of the family members present in the house only t he brot hers Bassam and T awfiq and 3-year-old Nour survived. 289 163. T he Abu Jama home was complet ely dest royed. 290 According t o an Amnest y Int ernat ional field worker who visit ed t he scene, t here was a crat er consist ent wit h t he dropping of a large bomb. 291 T he civil defence and ambulance crews who had arrived at the scene short ly after the incident cont inued searching for corpses under t he rubble unt il t he following morning. 292 164. T he commission int erviewed survivors of t he at t ack. One of t hem t old t he commission t hat he was sitting wit h his family about to break t he fast when suddenly t hey were all sucked int o t he ground. 293 He lost his wife, his eight children, his mot her and a brot her in the attack. The youngest child was 2 years old and t he oldest 14. 294 T he wit ness and t he ot her two surviving family members are now homeless and receive no assist ance from t he Unit ed Nat ions Relief and Works Agency (UNRWA) or from t he St at e. 295 165. While t he brothers claimed t hat they were not aware of the presence of any visit ors in t he house and said t hat t here was no advance warning, 296 B’T selem and Amnest y Int ernational refer to reports that Ahmad Soliman Mahmoud Sahmoud, an alleged member of t he Al Qassam brigades, was one of t he vict ims. 297 166. While it is impossible t o det ermine wit h cert aint y which weapon was used in t his st rike, given t he report ed large-scale dest ruct ion, it appears likely t hat it was a JDAM equipped bomb of unknown size. 298 167. On 6 December 2014, t he MAG report ed t hat : “In reports received by the MAG Corps, and in correspondence from various NGOs, it was alleged that on 20 July 2014, 27 civilians were killed as a result of an IDF strike on the house of the Abu-Jama family in Khan Yunis. As a result, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM. The factual findings and materials collated by the FFAM and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the incident involved a deviation from the rules

288 289 290

291

292 293 294 295 296

297

298

44

W014.

W013 and submission 5.

See also photo at B’Tselem, Bombing of the Abu Jama’ home, Bani Suheila, 28 January 2015, at http://www.btselem.org/gaza_strip/2015_black_flag/abu_jame_family Amnesty International, Families under the rubble, November 2014. See also B’Tselem, Black Flag, January 2015.

Submission 5.

W013.

W013.

W013.

W013 and W014. Also according to Amnesty International, surviving family members and neighbours denied knowing Sahmoud and claimed that he was not in the building at the time of the attack. One of the family members said he might have been outside the building. Amnesty International, Families under the rubble, November 2014, p. 18.

B’Tselem, Initial findings: 25 members of a single family killed when their house was bombed, apparently without warning, July 2014, at http://www.btselem.org/press_releases/20140721_killing_of_abu_jame_family and Amnesty International, Families under the rubble, November 2014.

This is compatible with findings by Amnesty International, Families under the rubble, November 2014, p.17.

A/HRC/29/CRP.4

and procedures applicable to IDF forces. As a result, the MAG has ordered a criminal investigation into the incident.”299 (x)

Al Salam t ower – Al Kilani and Derbass families 168. On 21 July, at around 8 p.m., t he nine-st orey Al Salam t ower in Gaza cit y was bombed, 300 killing all members of t he Al Kilani and Derbass families who had sought shelt er in the tower. In total, 11 people from t hose t wo families died including 5 children aged bet ween 3 and 11. 301 It appears that a member of t he Al Quds Brigades, who was on t he fourt h floor, was also killed. 302 The rest of the building was empt y except for the family of Abdul Karim Madder, a lawyer on t he second floor, all of whom escaped before t he upper floors collapsed. 303 169. Ibrahim Al Kilani’s brother t old t he commission t hat Ibrahim was an archit ect of German nat ionality, a man dedicat ed t o his work and t o his family who did not have links t o militants. 304 Ibrahim, his wife and five children had left their home in Beit Lahiya aft er t he IDF dist ribut ed leaflet s inst ruct ing resident s t o leave t he nort hern part of Gaza and move t o the centre of the St rip. They decided t o go t o the house of his brot her in the Tuffah neighbourhood, Gaza cit y. Ibrahim’s brot her said t hat because of t he ongoing shelling in T uffah, the Kilani family still felt insecure and moved t o t he Al Salam t ower, where Inas Derbass’s employer had an office. 305 Four siblings of Ibrahim’s wife from t he Derbass family, who were st aying t oget her wit h t he Kilanis in t he t ower, were also killed. 306 170. T he Al Salam t ower is one of the high-rises in t he Al-Remal neighbourhood in t he cent re of Gaza cit y. T he building housed offices of lawyers, engineers, and commercial companies. 307 T he area was considered t o be safe because IDF leaflet s had encouraged people t o move to the centre of Gaza city.308 The Derbass and Kilani families had moved to t he 5 th floor of the tower on 19 July, two days before t he at t ack. 309 On 21 July, t hey were gat hered for iftar when t he sixth floor of the t ower was st ruck causing t he upper floors t o collapse on t he lower floors. One witness told t he commission that he did not see the t ower being hit but he heard what he t hought were two missiles being fired. Another wit ness said he heard aircraft on t he day of t he at t ack in t he area. 310

299

300

301 302

303

304 305 306 307 308 309 310

M ilitary Advocate General. Up -date of December 2014 at: http://www.law.idf.il/163-6958en/Patzar.aspx W114 was close to the site and said that he heard the firing of two missiles from a plane; W112 was working at a neighbouring building and said he heard F16 drones in the area that day and the days before. Al M ezan told the commission that it was very likely a plane because it was a high-rise building and the top floors collapsed (meeting on 9 February 2015).

B’Tselem, Black Flag, January 2015.

B’Tselem, Black Flag, January 2015. See also IDF M ilitary Advocate General's ('M AG): Decisions of the IDF M AG Regarding Exceptional Incidents that Allegedly Occurred During Operation 'Protective Edge'- Update No. 4 of 11 June 2015; at http://www.law.idf.il/163-7353-en/Patzar.aspx PCHR submission; meeting with Al M ezan on 9 February; video showing a family fleeing down the stairs.

W115.

W115.

B’Tselem, Black Flag, January 2015.

PCHR submission.

M eeting with Al M ezan on 9 February 2015.

W114.

W114.

45

A/HRC/29/CRP.4

171. Based on an analysis of photos311 , sketches and videos submit ted to the commission and t est imonies from eyewit nesses, and given t hat no explosion was report ed, it appears t hat the tower was hit by a JDAM equipped 500 lb bomb, likely inert, as t hat would ensure t he collapse of t he floors while minimizing collat eral damage.

172. T hree witnesses interviewed by t he commission, who eit her work at t he t ower or close t o it , were not aware of any warning issued before t he attack. It appears that Al Salam t ower was t he only building at t acked in the densely populat ed neighbourhood and t hat t he area was calm before t he strike. The witnesses said t hat they were unaware of any militant s or milit ary activity in the building or in it s vicinity. 312 According to a MAG st atement of 11 June, t he t arget was “Sha'aban Dachdouch, a senior commander in t he P alest inian Islamic Jihad”313 . Sha’aban Dachdouch, who was killed in t he st rike, report edly had been in and out of t he building several t imes in t he days before t he at t ack. 314 173. A cameraman working in a neighbouring building suddenly heard t he sound of a massive explosion and headed t o t he site of the incident. He told t he commission that, when he arrived at t he t ower, “no single body was int act ”. Alt hough it was dust y and dark, he could see a woman’s body caught bet ween t wo floors, and bodies t hat had landed on an adjacent open area, including t he corpse of a woman st ill holding her small child, who was burned, in her arms. 315 Ibrahim Al Kilani’s brot her described t o t he commission how he went t o Al Shifa hospit al aft er t he at t ack and saw Ibrahim’s head crushed and lungs hanging out , one of his nephews decapit at ed, and his sist er in law’s corpse st ill holding Elias, t heir youngest child, burned. 316 T wo ambulance drivers said t hey recovered children’s bodies, charred and t orn t o pieces, and a woman holding a child. 317 174. According t o t he MAG, “regrettably, after the fact, there was an unforeseen collapse in t he upper floors of t he building approximat ely half an hour aft er t he at t ack. […] t he MAG found t hat the targeting process in quest ion accorded wit h Israeli domest ic law and int ernat ional law requirement s. T he decision t o at t ack was t aken by t he compet ent aut horities and aimed at a lawful t arget – a senior commander in Palestinian Islamic Jihad, who was indeed killed as a result of t he attack. The at t ack complied wit h t he principle of proportionality, as at the time the decision was t aken, it was considered t hat t he collat eral damage expect ed from t he at t ack would not be excessive in relat ion t o t he milit a ry advant age ant icipat ed from it , and t his assessment was not unreasonable under t he circumst ances. Moreover, t he at t ack was carried out while undert aking a number of precaut ionary measures which aimed t o minimize t he risk of collat eral damage. Such measures included, int er alia, the choice of munition to be used, and t he met hod according t o which t he attack was carried out . The fact t hat , in pract ice, a number of civilians who were not involved in the hostilities were harmed, is a regrettable result , but does not affect t he legalit y of the attack ex post facto. In light of the above, the MAG did not find t hat t he act ions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct . As

311

312 313

314 315 316 317

46

See also photo at: B’Tselem, Bombing of an office building in a-Rimal neighbourhood Gaza City; 12 people killed-11 members of the Dirbas and al-kilani families, and an operative of the Islamic Jihad, 21 July 2014, 28 January 2015. At: http://www.btselem.org/gaza_strip/2015_black_flag/dirbas_and_kilani_families.

W115 and W113.

IDF M ilitary Advocate General's ('M AG): Decisions of the IDF M AG Regarding Exceptional Incidents that Allegedly Occurred During Operation 'Protective Edge'- Update No. 4 of 11 June 2015; at http://www.law.idf.il/163-7353-en/Patzar.aspx Submissions 5 and meeting with Al M ezan, 9 February 2015.

W112.

W115.

Submission 5.

A/HRC/29/CRP.4

a result , t he MAG ordered the case to be closed, wit hout opening a criminal investigation or ordering furt her act ion against t hose involved in t he incident .” 318 (xi)

Kaware family home 175. T he Kaware home was a t hree-st orey building comprised of seven apart ment s, in which five families lived. 319 The owner of the house, Ahmed Mohamed Kaware, lived on t he ground floor wit h his wife and t hree of t heir younger children. T he remaining apart ment s were inhabit ed by t heir four older sons and t heir families. T heir son Odeih Kaware, described as a police officer, lived wit h his wife and four children on t he second floor.

176. On 8 July around 3 p.m. 320 , a guided bomb hit t he Kaware family home in Khan Younis, killing 9 people, of whom 6 were children. According t o t he commission’s assessment , on t he basis of wit ness st at ement s; phot os of t he sit e and of remnant s of weapons; building plans;321 t he combinat ion of damage caused; and t he small amount of fragment s shown; indicate t hat t he house was most likely st ruck by a MP R 500 lb bomb fit t ed wit h JDAM. 177. P rior to the attack, the IDF called the wife of Odeih Kaware whose family resided in t he house, warning t he family of an imminent at t ack and direct ing t hem t o evacuat e t he building. 322 According t o a family member interviewed by t he commission, 3 t o 5 minut es elapsed bet ween t he phone call and t he first missile (possibly a warning missile) , 323 which st ruck t he wat er t ank. According t o anot her wit ness, t he bomb hit t he house about 10 minut es aft er t he phone call. 324 A B'T selem report st at ed t hat t here was about an hour bet ween t he call and t he warning missile, and several people who had left t he house had st art ed t o return to check the damage done t o the roof. 325 As a result of the st rike, t he roof of t he home collapsed. One wit ness st ated t hat people st ayed in t he house after t he warni ng and at t empted to “protect ” t he house and warn t he pilot t hat t here were civilians. 326 An unverified yout ube video point s in t hat direct ion as well. 327 However, several wit nesses denied t hat anyone remained after t he warning and st at ed that people attempted to evacuat e

318

319 320 321

322 323 324 325

326 327

IDF M ilitary Advocate General's ('M AG): Decisions of the IDF M AG Regarding Exceptional Incidents that Allegedly Occurred During Operation 'Protective Edge'- Update No. 4 of 11 June 2015; at http://www.law.idf.il/163-7353-en/Patzar.aspx PCHR submission.

The exact time of the attack is unclear as witness accounts vary.

PCHR submission. See also photo at: B’Tselem, Bombing Family House of Activists in Armed Palestinian Groups Violates International Humanitarian Law, 9 July 2014. At: http://www.btselem.org/press_releases/20140709_bobming_of_houses_in_gaza.

W133 and W052.

W133 and W052.

W028.

B’Tselem, Bombing Family House of Activists in Armed Palestinian Groups Violates International Humanitarian Law, 9 July 2014. At: http://www.btselem.org/press_releases/20140709_bobming_of_houses_in_gaza.

W133 and W132.

8 July: Al-Aqsa TV reporter: "Witnesses are talking about a large crowd. The residents are still gathering to reach the Kaware family home in order to prevent the Zionist occupation's fighter planes from striking it." Al-Aqsa TV host: "People are reverting to a method that was very successful once."

Hamas spokesman Sami Abu Zuhri: "The people oppose the Israeli fighter planes with their bodies alone... I think this method has proven effective against the occupation. It also reflects the nature of our heroic and brave people, and we, the [Hamas] movement, call on our people to adopt this method in order to protect the Palestinian homes.http://palwatch.org/main.aspx?fi=111&fld_id=111&doc_id=12020

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t he building, but t here was not sufficient t ime t o do so. T he wit nesses denied t hat t here were any organized at t empt s by t he aut horit ies t o encourage resident s t o remain in t he building. 328 178. While t he number of casualt ies varies bet ween 8 and 9, all sources concur t hat 6 children were killed during t he at tack.329 The number of people injured ranges from 25 t o 29. 330 T he 3 adult s killed were men. The witnesses claimed t hat they were unaware of any involvement of a member of t he Kaware family in an armed group or of t he use of t he building for military purposes. An official Israeli websit e however described Odeih Kaware as being a senior Al-Qassam Brigades “t errorist operat ive” 331 .

179. On 10 Sept ember 2014, the Military Attorney General (MAG) announced t hat it had examined t he case and indicat ed: “that the aerial strike was carried out against the building due to its use for military purposes by Hamas, as was the case with numerous other residential buildings in the Gaza Strip”332 . The MAG stressed that “Prior to the strike, the IDF provided precautions to the residents of the building to vacate the premises. These precautions included an individual phonecall and the firing of a non-explosive projective [sic] at the roof of the premises, as part of the 'knock on the roof' procedure. Following the provision of the precautions, the residents vacated the building. Subsequently, a number of people were identified as returning to the premises for unknown reasons.” 333 180. T he MAG furt her st at ed t hat t he pilot believed t he resident s had vacat ed t he building, and subsequent ly dropped a bomb on t he t arget. A short time aft er t he project ile was launched, a number of people were seen ret urning t o t he premises; aft er t he bomb had already been dropped, however, t here was no t echnical possibility to divert t he bomb or t o cancel t he at t ack 334 . Given t hat t he at t ack was for milit ary purposes and t hat a prior “individualized” warning was given: “the MAG found that there was no fault in the actions of the IDF fo rces involved, and that despite the fact that the attack resulted in a regrettable outcome, it does not affect its legality post facto. In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident. At the same time, the MAG 328

329

330 331

332

333

334

48

The commission received information about a mosque call encouraging people to remain indoors.

The commission was not able to verify this information.

W128, W052, W132 and W133 and PCHR submission. B’Tselem reports 9 persons to have been killed, of whom 5 under 14. See: Bombing family homes of activists in armed Palestinian groups violates international humanitarian law, 9 July 2014. At: http://www.btselem.org/press_releases/20140709_bobming_of_houses_in_gaza.

W132 and W133.

Israel M inistry of Foreign Affairs, Hamas Again uses Civilians as Human Shields, at http://www.mfa.gov.il/M FA/ForeignPolicy/Terrorism/Pages/Hamas-again-uses-Gazan-civilians-ashuman-shields-July-2014.aspx. According to B'Tselem, Odeih Kaware is an activist in Hamas’s military wing. See: Bombing family homes of activists in armed Palestinian groups violates international humanitarian law. 9 July 2014. At: http://www.btselem.org/press_releases/20140709_bobming_of_houses_in_gaza M ilitary Advocate General, Operation Protective Edge: Update re Individual Incidents, September 2014. At: http://www.mag.idf.il/163-6859-en/Patzar.aspx.

M ilitary Advocate General, Operation Protective Edge: Update re Individual Incidents, September 2014. At: http://www.mag.idf.il/163-6859-en/Patzar.aspx.

M ilitary Advocate General, Operation Protective Edge: Update re Individual Incidents, September 2014. At: http://www.mag.idf.il/163-6859-en/Patzar.aspx.

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recommended conducting an examination of the operational procedures involved in carrying out such strikes, in order to assess the potential for reducing the likelihood of such exceptional incidents in the future.”335 (xii)

Dheir family house 181. On 29 July 2014, at approximat ely 4.30 a.m., a guided bomb was launched on t he Dheir family house in Rafah. In total, 19 family members were killed including 9 children and 7 women 336 ; one of t he women was 6 months pregnant.337 Another 3 children suffered serious injuries. P hot os provided t o t he commission by t wo sources show a complet ely dest royed building, wit h only rubble and cement blocks remaining. 338 182. T he t hree-st orey house covered 250 square met ers and was surrounded by an agricult ural area. 339 Two apartments were located on each of t he first t wo floors, whereas t he t hird floor consisted of one large apartment. Five families comprising 27 members lived in t he house including 7 men, 7 women and 13 children. 340 183. T he commission interviewed t wo wit nesses from the Dheir family who arrived at the house short ly after the attack. One of the witnesses said t hat only 3 of the 22 people present in t he house survived, while 19 were killed. He claimed t hat his family had been living in t hat location for 20 years working as farmers, and none were members of armed groups.

T he wit ness lost his mot her, his wife and his brot her’s ent ire family. 341 184. T he wit ness had heard from a neighbour t hat the house was first “hit by a drone”, so t he neighbours warned t he family to leave. Apparently about five minut es later “a real shot” followed342 . When t hey went to recover t he bodies, t hey found t hat many of t hose killed were just out side t he house and ot hers were in the rubble of t he stairs, which indicat es t hat t hey were t rying t o flee but did not manage t o do so in t ime. 343 185. One wit ness said t hat t he family grows veget ables and was supplying refugees in schools wit h food during t he war, which the witness t hinks might be t he reason why t hey were t arget ed. According t o the witness t here were no fighters in the house or in the area at t he t ime of the st rike. 344 T he Int elligence and T errorism Informat ion Cent re, however, report ed t hat Izat Dheir, a P IJ Al-Quds Bat t alions operat ive, was killed on 29 July in Rafah 345 .

186. It appears that, following a warning, a first bomb collapsed t he st ruct ure followed closely by a second bomb t hat led t o t he t ot al dest ruct ion of t he building. T he remaining crat er and debris pile show t he massive effects of t he blast . 346 Based on t he commission’s

335

336 337 338

339 340 341 342 343 344 345

346

M ilitary Advocate General, Operation Protective Edge: Update re Individual Incidents, September 2014. At: http://www.mag.idf.il/163-6859-en/Patzar.aspx.

PCHR submission.

W080.

PCHR submission including pictures of the site, maps, building plans and affidavits. See also picture – confidential submission 49.

W079.

W079 and W080.

W079.

W079.

W079.

W079.

Intelligence and Terrorism Information Center. Preliminary, partial examination of the names of Palestinians killed in Operation Protective Edge; 28 July 2014 at http://www.terrorisminfo.org.il/en/article/20708 PCHR submission including building plans, pictures of the site and remnants from weapons.

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assessment of pictures of the site and of remnant s of weapons and on wit ness account s, it appears t hat t wo MP R 500 JDAM equipped bombs st ruck t he building. b. (i)

Groups of individuals with young children killed while outside Al Sayam and Abu Sanimah families’ houses 187. “A minute later […] the dust had settled and I saw my family all ripped to pieces.

My family included my brothers, my wife and my children. Some were dead and others wounded. It was a very difficult thing to see. The majority of those who fell were women and children.347” 188. On 21 July at approximately 6.15 a.m., a missile appears t o have been fired at t he house of Ahmed Abu Sanimah in Ot hman Bin Affan St reet in the Al Siyamat neighborhood of Rafah. T he adjacent Al Sayam building has four floors and about 35-37 people were living in t he building at t he time of the attack348 . As a result of t he st rike on t he Sanimah house, shrapnel scat tered and hit the northern walls of the Al Sayam family house. Terrified by t he at t ack, many of t he building’s inhabit ant s ran out t o t he st reet in an at t empt t o escape. Soon aft er leaving t heir house, another missile hit t he pavement in front of t he Al Sayam family home. 349 As a result, 9 members of t he Al Sayam family were killed in t he st reet , while 2 died wit hin 24 hours from their injuries. 350 T he vict ims included 2 women and 7 children 351 (one of them a baby). 352 According t o a wit ness, a 14-year-old died lat er as a result of t he injuries sust ained353 , which brought the deat h toll to 12. Another 6 people were injured, of whom 2 were women and 3 were children. 354 189. According t o photos of t he sit e 355 , t he area was hit by 3 missiles (some wit nesses indicat ed t hat there were 5 356 ). Within a few minut es ambulances arrived at t he scene and t ransported t he injured t o Al Najjar hospital357 . Three of those injured became disabled as a result of t he attack.358 The commission reviewed photos from t he sit e, showing ext ensive damage t o t he Al Sayam family home caused by shrapnel. 359 P hot os submit t ed t o t he commission by a journalist reveal big scars on t he legs and st omach of one of the surviving Al Sayam children. 360 190. T he commission interviewed t wo Al Sayam family members, one of whom survived t he at t ack and a second who was in a m osque close by and rushed t o t he scene when he heard what had happened. T he eyewit ness t old t he commission:

347 348 349 350

351

352 353

354 355 356 357 358 359 360

50

W144 PCHR submission.

W144. PCHR submission.

W144; see list at PCHR, Weekly Report on Israeli Human Rights Violations in the Occupied Palestinian Territory (17- 23 July 2014).

Indications of the age of one of the victims differ (just under or over 18 years old); since the witness interviewed by the commission said that he was 15, he is counted as a child.

W144 and W145.

W145. According to Physicians for Human Rights one person died later as a result of the injuries sustained. Physicians for Human Rights, Findings of an Independent M edical Fact-Finding M ission, Gaza 2014, pp. 204-208.

W145.

PCHR submission.

W144.

PCHR submission.

W145.

PCHR submission.

Photos submission 49.

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I had a close look at the bodies. Only the upper part of my 9 -year old daughter’s body was left. My son Mohamed had his intestines coming out. My 1 6-year old cousin had lost his two legs. My son Mustapha, who was 5 meters away from me, had received shrapnel that almost completely severed his neck. My 16-year old nephew lost both his legs and arms. He asked for my help. I just really wanted him to die quickly. I didn’t want him to go through so much suffering. There was also my one year old daughter who was in her mother’s arms.

We found her body on a tree… I myself lost my left arm …361 191. Bot h wit nesses interviewed by t he commission claimed t hat t hey were unaware of any family member’s ties with armed groups or t hat there was any milit ary act ivit y in t he vicinit y. 362 One of t he wit nesses described t he neighbourhood as quiet ; no fight ing or at t acks had t aken place in the area prior t o the date in quest ion. The eyewit ness also st at ed t hat no warning was given in advance of t he at t ack. 363 However, P hysicians for Human Right s reports that there may have been a “roof-knock” warning, which shatt ered glass and killed one of t he cousins. 364 According t o t he Int elligence and T errorism Informat ion Cent er, Mohammad Mahrous Salam Siam, allegedly affiliat ed wit h Nat ional Resist ance Bat t alions, and Kamal Mahrous Salam Siam, allegedly affiliat ed wit h t he Al Qassam Brigades, were killed in Rafah on 20 July. 365 While the dat e of the st rike on t he Al Sayam family was early in t he morning on July 21, it could be t hat those t wo individuals, or one of t hem, may have been t he t arget of t he at t ack.

192. On t he basis of t he photos of the site, the descriptions of the events, and t he result ing damage, t he commission concluded t hat t he shrapnel in t he Sayam house probably was caused by missile and art illery shells. T he t hird st rike, which caused t he most casualt ies, was most likely from a missile, probably an AGM 114 Hellfire Missile . Indicat ions of art illery fire could also be seen from the images, alt hough t hese t races may have been t he result of a lat er incident . (ii)

Shuheibar children on t he roof of the house 193. “His daughter Afnan called for him, she said “papa”. He told her t hat they would be in the hospital in a minute and that she would be fine. Shrapnel was all over her body.

As he was going downstairs carrying her, the walls were splashed with blood as she was bleeding so much. […]What have these innocent children done?” Fat her of an 8-year-old girl who died soon aft erwards366 194. On 17 July at around 5.30 p.m., a house on 30 th st reet in Al Sabra, a densely populat ed neighbourhood in Gaza cit y, was at t acked. T wo brot hers, T areq and Wessam Shuheibar, t heir wives and t heir 9 children lived in t he house. 367 On t he day of t he at t ack, ot her family members were visiting as is t he cust om during Ramadan. In t ot al, t here were 23 people in t he house. 368 As a result of t he missile st rike, 3 children of t he Shuheibar

361 362 363 364

365

366 367 368

W144.

W144.

W144.

Physicians for Human Rights, Findings of an Independent M edical Fact-Finding M ission, Gaza 2014, pp. 205.

Intelligence and Terrorism Information Center. Preliminary, partial examination of the names of Palestinians killed in Operation Protective Edge; 28 July 2014 at http://www.terrorisminfo.org.il/en/article/20708 W178 W110 and W186.

W110. See also B’Tselem, Wisam Shuheibar relates how a missile killed his 8-year-old daughter and her cousins, 7 and 10, while they were feeding pigeons on the roof, 17 July 2014. At: http://m.btselem.org/testimonies/20140721_gaza_wissam_shuheibar.

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family were killed and 2 were injured. A family member t old t he commission t hat t he children had gone t o t he roof t o feed t he birds. T he wit ness said t hat , before t he war, t he children used t o spend a lot of time on the roof but during t he conflict t hey would only go up t o feed t he birds. 369 195. T areq and Wessam t old t he commission t hat t hey were lying down before sunset when t hey were awakened by t he sound of a loud blast . T hey did not know at first t hat t he explosion had t aken place in t heir own house, but neighbours gat hering out side alert ed t hem t hat their roof had been hit . Wessam said t hat he saw an opening in t he ceiling and wat er mixed wit h blood dripping down, so he went upst airs t o check what had happened and found t he five children lying on the ground. Jihad, aged 11, and Wessam, aged 9, were dead. T he t hree remaining children, all severely injured, were t aken t o t he hospit al by passing cars. 370 One of t hem, Afnan, aged 9, was bleeding heavily and died soon aft er arriving at t he hospit al. 371 196. Basil, 10, was crit ically injured. He had four surgeries in his abdomen, his skull was fract ured and his hand and shoulder shat t ered. After receiving t reatment in T urkey, he was st ill not able t o open his hand. Oday, 15, had fractures on his foot , wounds in his hand and underwent surgery on his abdomen. 372 Bot h children were suffering from t he loss of t he ot hers. 373 197. T he explosion pierced t he roof and two floors below, dest royed t he wat er t anks on t he roof and shattered t he house’s windows and doors. 374 No st rikes followed t he first strike on t he roof.375 Based on t he informat ion available t o t he commission, including pict ures showing penet ration and damage and of remnants of weapons, it is likely t hat t he weapon used was a 500 pound MP R bomb, a precise bomb used t o penet rat e concret e and dest roy t arget s in lower floors or underground.

198. Wit nesses int erviewed by t he commission said t hat t here had been no warning before t he st rike. They also insisted t hat there were no militant s in t he house, and t hat t h e neighbourhood was calm at t he time of the attack. 376 Tareq and Wessam Shuheibar appear t o have links t o t he P alest inian Aut horit y police. 377 200. Wit nesses t old the commission that t he surviving children were visibly affect ed by t he loss of t heir siblings and cousins. T he uncle of one of t he vict ims said t hat aft er t he incident his 8-year old son refused t o go t o school on his own and showed ot her signs of t rauma. Other children in the family were afraid to play out side and woke up in t he middle of t he night screaming. 378 (iii)

Al Farra family home 201. On 1 August , at around 2.30 a.m., t he roof of t he Al Farra’s t hree st orey family home in Khan Younis, in a residential area far from the Green Line was hit 379 , possibly by a “roof-knock”. As t he family fled t he house, a second missile st ruck a group of family

369 370 371 372 373 374 375 376 377 378 379

52

W186.

W186.

W186.

W110.

W110 and W186.

W110.

W110 and W186.

M eeting with Al M ezan on 9 February 2015.

M eeting with Al M ezan on 9 February 2015.

W110.

W186; also meeting with Al M ezan on 9 February 2015.

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members who were ahead of t heir relatives and had reached t he end of the road opposite the house. Nine family members were killed on t he st reet , 5 of t hem children aged bet ween 4 and 12 and t wo women, one of whom was pregnant 380 . T wo ot her family members were injured, including a 4-mont h-old baby who was in crit ical condit ion aft er being injured by shrapnel in t he abdomen 381 .

202. T he commission spoke with the parent s of t hree of t he children who died. On t he night of 1 August , in t he wake of an announced ceasefire, the Al Farra family was sleeping when t hey were awakened by t he sound of an explosion and broken glass. As neighbours alert ed t hem t hat t heir roof had been hit and was on fire, t he children were rushed downst airs and t old by t heir parents to run out of the house in fear that a second st rike may hit t he house. In their pyjamas and bare feet , the children and four adult s ran down a narrow road in front of their house. They were about 70 meters away from t heir house wait ing for t he remaining family members when a missile landed at t heir feet . 382 203. One wit ness said t hat he does not know whet her or not the first missile was a “roofknock”. The top floor was completely dest royed so t he wit ness t hinks t hat it may have been st ruck by more t han one missile, but he did not see it . 383 When the family was in the street, t hey were direct ly hit by two consecut ive strikes. Although t he information available in this case is limit ed, on t he basis of an analysis of t he t est imonies and cross-checked expert st at ements, it seems likely that bot h t he house and t he fleeing family were hit by precise guided munit ion, probably AGM 114 Hellfire Missiles.

204. T wo eyewit nesses told t he commission t hat no ot her house in t he vicinit y was hit before or aft er the attack on their home. They claimed t hat t here were no milit ant s in t he area and t hey do not underst and why t heir house was hit . 384 One family member said, “When we used t o hear that people were hit and killed I thought ‘maybe t hey are militant s’ but when it happened t o the witness, a university professor, he thought : “Why do t hey kill us?”385 205. T he mother told t he commission that her three other children are t raumat ized by t he loss of t heir siblings and relat ives who lived wit h t hem in t he house. She also ment ioned t hat her children no longer excel at school, and one of t hem oft en wakes up screaming at night . 386 206. T he commission received informat ion indicat ing t hat one of t he male family members killed in t he attack worked for Hamas, but it is unclear what his funct ions were.

He lived on t he t op floor of the house, which was completely dest royed, but had not st ayed t here regularly after the start of the conflict. He was among t he group of people who were killed in t he st reet by t he second st rike. 387

380

381 382

383 384 385 386 387

B’Tselem, Families Bombed at home Gaza, 11 August 2014, at http://www.btselem.org/gaza_strip/201407_families; see also Al-Haq, Field Updates from the Gaza Strip, 10 July 2014, at http://www.alhaq.org/documentation/weekly -focuses/821-al-haq-field-updatesfrom-the-gaza-strip.

W097 W097 told the COI that Civil Defence found two missiles: the one that hit inside the house from a drone and a second missile that hit the children on the street.

W097.

W097.

W097.

W187.

M eeting with Al M ezan, 9 February 2015.

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c.

Attacks on residential buildings and civilian objects that did not result in the killing of civilians.

207. “Only after causing damage to the assets of Gaza’s social eli te, (…) , by bombing the city’s residential high rises, did Hamas’s profit-loss calculus change.” Former IDF General Yair Naveh 388 208. T he commission received information about the wholesale destruction of more t han 200 resident ial buildings t arget ed by air st rikes, which did not result in t he killing of civilians or Palestinian fighters since the buildings had been vacat ed before t he at t acks. 389 T he following report s were brought t o t he commission’s at t ent ion: 

On 12 July 2014, t he house of Essam Al Da’alis in Al Nussairat refugee camp was at t acked, wit hout causing any casualt ies 390 . Mr Al Da’alis was described as t he head of t he financial and economic council of Hamas. 391 On t he basis of t he informat ion available t o it , t he commission is unable t o assess whet her Mr. Al Da’alis had any combat funct ion.



On 16 July, in t wo separate incidents, a house belonging t o Jamil Al Shant i392 , and t he four-storey house belonging t o Ismail Al Ashqar, in Jabaliya 393 , bot h members of t he P alest inian Legislat ive Council (P LC), were dest royed.



On 25 July, t he house of Salah Al Bardawil, also a member of t he P LC, in Al Qarara village was at t acked and report edly levelled. 394



On 29 July 2014, t he house belonging t o Ismail Abdul Salam Ismail Haniya, Member of t he Palestinian Legislat ive Council (P LC), in t he west of Gaza Cit y was dest royed395 .



In a st at ement issued on 16 July 2014, t he IDF Spokesperson list ed t he day’s t arget s. He said: “among t he t arget s at t acked t onight was t he operat ional infrast ruct ure of Mahmoud Al-Za’ar, who serves as a member of t he polit ical bureau in t he Gaza St rip, and head of t he Political Committee and Foreign Liaison Depart ment”. B’Tselem pointed out that in this case t he IDF did not ment ion any milit ary activity carried out by Mr Za’ar, or how such act ivity m ight be connect ed t o t he house. 396

209. On 8 July, t he IDF spokesperson stated that t he IDF had at t acked about 50 “t error t arget s” in the Gaza st rip. “Among the target s, there were four houses of senior members of t he Hamas t error organization involved in t error act ivit ies and in t he guidance of missile fire on Israeli territory”.397 This was t he first time that the IDF provided a rat ionale for it s at t acks on resident ial buildings. Alt hough Israel’s Minist er of Defence, on 14 July, report edly used similar language t o refer t o t he at t acks on houses and ot her civilian 388

389 390 391

392 393 394 395 396 397

54

Yair Naveh: Deterrence against Non-State Actors: Thoughts following Operation Protective Edge; The Institute for National Security Studies (INSS) Insight No. 663, 11 February 2015, p.3. At: http://www.inss.org.il/index.aspx?id=4538&articleid=8720 Submission 22.3.

Submission 22.3.

Haaretz: IDF to the residents of northern Gaza: "evacuate until 12:00" ; 13 July 2014 at http://www.haaretz.co.il/news/politics/1.2374145 Submission 22.3.

Submission 22.3.

Submission 22.3.

Submission 22.3.

B’Tselem, Black Flag, January 2015.

IDF spokesperson. 8 July 2014. At: http://www.idf.il/1153-20876-he/Dover.aspx

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object s398 , st arting from 10 July, the IDF consistently argued t hat it was t argeting terrorists, command cent res, weapons caches, t unnels and munit ion depot s locat ed inside t hese houses399 . In t his context, Israel alleges t hat houses belonging t o cert ain Hamas polit ical leaders in Gaza were used for military purposes and gave examples of supposed command and cont rol cent res. 400 210. According t o information available to the commission, four multi-storey buildings in different parts of Gaza were dest royed in t he last days of t he host ilit ies. T he commission reviewed and analysed video and phot ographic evidence, and submissions it received dealing wit h t hese incident s401 . T he following are t he summaries of t he informat ion furnished t he commission on t hese four at t acks:

398

399 400

401

402 403

404



On 23 August , at approximately 10.30 p.m., the IDF carried out st rikes against the Municipal Commercial Centre in Rafah, which used t o occupy a 1 500 m2 plot .

According t o Amnesty Internat ional, following t wo warning missiles, t hree air dropped bombs t arget ed t he lower t hree floors and caused t he dest ruct ion of numerous shops and offices in t he four-storey building, rendering it unusable. The air st rikes started a large fire inside the building, which could not be ext inguished unt il t he following day. Only a concret e skelet on was left . 402



On 23 August , t he IDF t argeted t he Zafer 4 Tower, a 12-storey building locat ed in Gaza Cit y. According t o submissions received by t he commission, t he T ower had become home t o dozens of families; more t han 400 individuals had fled t heir homes elsewhere and resided in t he t ower. T he at t ack result ed in t he complet e dest ruct ion of t he building. According t o media account s and report s from P alest inian NGOs, around 20 resident s in surrounding buildings were injured. 403 Hamas assert edly sit uated several command and control centres on multiple floors of t he “Zafer 4” building in Sabra T al al-Hawa. “After providing several effect ive advance warnings t o t he building’s occupant s and neighbours, and verifying t hat it was fully vacat ed, t he IDF st ruck t he building on August 23. No civilians were harmed in t he at t ack.”404

According to press reports, M inister Ya’alo said: “We continue to smash Hamas and its infrastructure. They have suffered great damage. We have destroyed weapons-production capabilities, tunnels, terrorists' homes, and institutions and we will continue this activity today […] When Hamas comes out of their hiding places they will discover the extent of the destruction and the damage that we have caused the organization that will make them regret that they entered this round of fighting against Israel". Highlighted by the commission. In: Jerusalem Post: Ya'alon: Hamas leaders will see destruction we inflicted when they come out of hiding. 14 July 2015. At: http://www.jpost.com/Operation-Protective-Edge/Yaalon-Hamas-leaders-will-see-destruction-weinflicted-when-they-come-out-of-hiding-362691 IDF spokesperson. 10 July 2014. At http://www.idf.il/1153-20893-he/Dover.aspx Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 22 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf. Accessed on 30 M ay 2015 United Nations Office for the Coordination of Humanitarian Affairs: Occupied Palestinian Territory: Gaza Emergency Situation Report (as of 26 August 2014) at: http://www.ochaopt.org/documents/ocha_opt_sitrep_26_08_2014.pdf ; Including the report of Amnesty International: Nothing is Immune’: Israel’s Destruction of Landmark Buildings in Gaza, December 2014. At https://www.amnesty.nl/sites/default/files/public/nothing_is_immune.pdf. From now on referred to as Amnesty International, Nothing is Immune, December 2014.

Submission 22.3; Amnesty International, Nothing is Immune, December 2014.

Amnesty International, Nothing is Immune, December 2014. Forensic Architecture’s TEJKA See Video: http://www.reuters.com/article/2014/08/24/us-mideast-gaza-idUSKBN0GM 11320140824 Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p.23 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf, Accessed on 30 M ay 2015

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

On 25 August 2014, at about 12.05 a.m., the IDF carried out a number of strikes at the Italian Complex. The complex, located in Gaza City, is composed of a 16storey tower with a commercial centre on the two bottom floors. The strikes severely damaged the complex when all the floors on one side of the tower collapsed. The residential part contained about 50 apartments. According to Amnesty International, the bottom two floors included a shopping mall with scores of shops, a branch office of Hamas’s political wing and an office of the Ministry of Public Works and Housing of the Hamas authority. Most of the shops were severely damaged. According to the Gaza Ministry of Health, 25 people were 405 injured in this attack.



On T uesday, 26 August 2014, at approximat ely 4.30 a.m., t he IDF conduct ed several air st rikes against t he 13-floor Al Basha T ower, locat ed in t he cent re of Gaza Cit y, levelling it complet ely. T he Al Basha t ower host ed about 30 apart ments. According t o Amnesty International, the tower was occupied primarily by businesses and news media offices, as well as by a number of educat ional inst it ut ions, many of which were closed during t he host ilit ies. 406

211. T hese four st rikes led t o the buildings’ t otal or nearly total dest ruct ion. None of t he at t acks result ed in deat hs as t he IDF t ook measures t o ensure t hat all resident s left t he buildings before t hey were t arget ed by using, in all cases, t he “knock on t he roof” procedure. In t hree of t he cases (t he Gaza Cit y buildings), some resident s also received warning phone calls, instructing t hem to evacuate and to tell others t o leave the building. In t wo cases (t he Al-Basha Tower and t he Italian Complex), messages were sent t o resident s direct ing t hem t o maint ain a dist ance of 300 m bet ween t hem and t he building, and t o inform resident s of surrounding buildings t o do t he same. In all four cases, resident s evacuat ed t he buildings, alert ed ot hers, and assist ed persons who needed help, including the elderly, but t hey were unable t o remove t heir personal belongings. It appears t hat most inhabit ant s lost all of t heir possessions. 407 212. Amos Yadlin, a former Israeli Air Force (IAF) General and head of t he IDF Military Int elligence Directorat e, st at ed: “[On]ly if Hamas were hit sufficient ly hard would it be det erred from further fighting, and t hus quiet would be rest ored in t he sout h. (…) Only in t he sevent h week, when (…) mult i-st orey buildings in Gaza were st ruck, was Hamas hit hard enough t o be det erred, and t hereupon quiet was rest ored.’’ 408 d.

Patterns and legal analysis 213. International law also recognizes the important social, historical and cultural dimensions of housing, and the critical link between access to adequate housing and recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.409 214. Based on it s inquiries and on t he review of submissions and publicly available informat ion, t he commission ident ified cert ain pat t erns wit h respect t o IDF st rikes on resident ial buildings. T hese are analysed in light of applicable int ernat ional law.

405 406 407 408

409

56

Amnesty International, Nothing is Immune, December 2014.

Amnesty International, Nothing is Immune, December 2014. Forensic Architecture’s TEJKA Amnesty International, Nothing is Immune, December 2014.

The Institute for National Security Studies, The Lessons of Operation Protective Edge, November 2014, p. 203. At http://www.inss.org.il/uploadImages/systemFiles/ZukEtanENG_final.pdf.

CESCR General Comment no. 4, paras 7 and 8.

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CASE

LOCAT ION

DATE

WARNI NG

POSSIBLE MILITARY OBJECTIVE IDENTIFIED

WEAPON KIL WOM CHILD INJURED likely used LED EN REN

Kaware

Khan Younis

8 July 3 p.m.

Phone call; Roofknock

Yes

JDAM equipped 500lb or 1000lb bomb

9

x

6

25- 29

Al Hajj

Khan Younis

10 July 2 a.m.

No

Yes

JDAM equipped 500lb bomb

8

3

2

Al Batsh

Tuffah, 12 July Gaza city 9.30 p.m.

No

Yes

JDAM 19 equipped bombs (either 500lb or 1000lb)

3

6

19, 7 women and four children 16- 45

Shuheibar Gaza city 17 July children 5.30 p.m.

No

No

JDAM equipped 500lb MPR bomb

3

x

3

2

Al Qassas Shuja’iya 20 July 4.30 p.m.

No

No

AGM 114 Hellfire Missiles

9

3

6

Al Hallaq Al20 July and Al Remal, 6.45 p.m.

Ammar Gaza city

No

No

AGM 114 Hellfire missiles

3

3 + 4

Abu Jama Abu Safar; East of Khan Younis

20 July 7.50 p.m.

No

Yes

JDAM equipped bomb, unknown size

7 + 4 from Amm ar Famil y 26

10 including 8 children and 1 woman Ammar family : 5 children injured

5

19

3 including 1 child

Al Sayam Rafah

21 July No (house 6.15 a.m. next door was hit)

Yes

AGM 114 Hellfire Missiles

11

2

7

8 including 2 women and 5 children

Kilani (Al Gaza city 21 July Salam 8 p.m.

No

Yes

JDAM equipped 500lb bomb

11

x

5

Al Najjar

No

No

JDAM 19 equipped 1000lb or 2000lb bomb,

5

11

Khan Younis

26 July 3 a.m.

6

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Abu Jabr

Al Buraij 29 July refugee 12.30 a.m. camp

No

Dheir

Rafah

Al Dali Building

Khan Yunis

Balatah

Jabaliya refugee camp

29 July 4 p.m.

No

No

Al Farra

Khan Younis

1 August 2.30 a.m.

Yes

Yes

29 July Possible 4.30 a.m. roofknock 29 July No 7.30 a.m.

A total of 216 killed

No

JDAM equipped 2000lb bomb

19

6

6

Yes

JDAM equipped 500lb bomb JDAM equipped 2000lb bomb AGM 114 Hellfire Missile

19

7

9

32

6

18

11

5

5

AGM 114 Hellfire Missiles

9

2

5

Yes

Of whom 115 children

7 including 4 women and 3 children 3 children

21 including 4 children 41 including 17 children and 5 women 2, 1 a baby

And 50 women

Military Objectives 215. In many of t he cases examined by t he commission, as well as in incident s report ed by local and int ernat ional organizat ions, t here is lit t le or no informat ion as t o how resident ial buildings, which are prima facie civilian object s immune from at t ack, came t o be regarded as legit imat e milit ary object ives. T he commission recognizes t he dilemma Israel faces in releasing informat ion t hat would disclose t he precise t arget of milit ary st rikes, as t his informat ion might be classified and jeopardize int elligence sources. In relat ion to “evidence of military use”, official Israeli sources indicated t hat: “ In the context of wide-scale military operations, it is often extremely difficult to provide evidence demonstrating exactly why certain structures were damaged. While the IDF targets only military objectives, forensic evidence that a particular site was used for military purposes is rarely available after an attack. Such evidence is usually destroyed in the attack or, if time allows, removed by the terrorist organisations who exploited the site in the first place.

It is therefore unsurprising that forensic evidence of military use cannot usually be traced following attacks. As is the case with most militaries, the IDF unfortunately cannot publicize detailed reasoning behind every attack without endangering intellige nce sources and methods. The Law of Armed Conflict does not include any requirement or obligation to publicize such information.”410 However, in t he commission’s view, accept ing t hat logic would undermine any efforts t o ensure account abilit y. T he key concept of int ernat ional humanit arian law is t he principle of dist inction. Only once it has been est ablished whether a specific at tack distinguished bet ween legit imat e milit ary object ives on t he one hand, and civilians and civilian objects on the other hand, can compliance with the other principles, of proport ionalit y and of precaut ions, be considered.

216. More specifically, the informat ion needed t o enable an independent assessment of whet her a given at tack complied wit h international humanitarian law obligat ions must shed light on t wo criteria that need cumulat ively to be fulfilled in order for a building t o become 410

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Israel, M inistry of Foreign Affairs, Israel's Investigation of Alleged Violations of the Law of Armed Conflict, p. 27. Accessed 30 M ay 2015.

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a milit ary objective: (1) does t he object by it s “nat ure, locat ion, purpose or use make an effect ive cont ribut ion t o milit ary act ion” and, (2) would t he object ’s “t ot al or part ial dest ruct ion, capture or neutralization in the circumstances ruling at the time, offer a definite milit ary advant age.” 411 217. T his information must be released t o independent and impart ial mechanisms which have t he effective power t o ensure accountability (for a more detailed discussion of t his see chapt er VII below). T he commission also not es t hat , while t here may be limit at ions on publishing cert ain types of information, a minimum level of t ransparency is required from t he point of view of assist ing vict ims’ quest for t he t rut h and t heir right t o effect ive remedies.

218. In t erms of t he t arget ed house at t acks, t he commission calls upon Israel, at a minimum, to release information about what constituted t he military object ive wit hin each house, and how t arget ing t hat object ive effect ively cont ribut ed t o milit ary act ion.

Incidents Resulting in Deaths 219. In 6 cases examined by t he commission, and in most cases report ed on by NGOs, t here is little or no information available as t o why resident ial buildings, which are prima facie civilian object s immune from at t ack, were considered t o be legit imat e milit ary object ives. In relation t o each at t ack on a resident ial building t hat result ed in significant dest ruct ion and civilian deat hs or injuries, t he onus is on Israel t o explain t he fact ual element s that have rendered the house or the person(s) present inside a mili t ary t arget . In t his regard, Israel should provide specific informat ion on t he effect ive cont ribut ion of a given house or inhabit ant t o milit ary act ion and t he clear advant age t o be gained by t he at t ack. Should a st rike directly and intentionally target a house in t he absence of a specific milit ary objective, this would amount to a violation of the principle of dist inction. 412 It may also const it ut e a direct at t ack against civilian object s or civilians, a war crime under int ernational criminal law. 413 The commission wishes t o emphasize t hat , in case of doubt , “whet her an object which is normally dedicat ed t o civilian purposes […] is being used t o make an effect ive contribut ion to military action, it shall be presumed not to be so used” 414 .

220. Indicat ions of possible military objectives emerged in 9 of the 15 cases examined by t he commission. In the Kaware case, the MAG indicat ed that “the aerial st rike was carried out against t he building due t o it s use for military purposes by Hamas” 415 . The attack on the Al Salam T ower was direct ed against an Islamic Jihad operative, according t o the MAG. In addit ion, in four cases, t here were possible links of family members or premises t o Al Qassam (Abu Jama, Al Haj, Al Batsh, one Sayam family member); t o Saraya Al Quds (Al Dali, Dheir); or to the Democratic Front for the Liberation of Palestine (one Sayam family member). In one incident , it appears t hat a person may have been t arget ed because he worked wit h Hamas (Al Farra). In t hese nine cases, while t he commission is not in a posit ion to ascertain why a resident ial building was at t acked, t he pot ent ial t arget s of t he at t ack seem to have been mostly individuals who were or who could have been present in t he building t hat was st ruck, indicating t hat one or several individuals were t he likely target and not t he building it self. In that context the commission underlines that t he mere fact of being a member of t he polit ical wing of Hamas or any ot her organizat ion in Gaza, or

411 412 413 414 415

AP I, article 52.2.

Additional Protocol (AP) I, articles 51 and 52.1 Rome Statue, article 8.

AP I, article 52.3, which reflects customary international law.

M ilitary Advocate General. Up -date of December 2014 at: http://www.law.idf.il/163-6958en/Patzar.aspx

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working for t he aut horit ies (Al Farra case), is not sufficient in and of it self t o render a person a legit imate military target . While t he IDF indicat ed t hat it did not t arget Hamas lawmakers, politicians or law-enforcement officials because of t heir affiliation with Hamas, but only individuals who direct ly part icipat e in host ilit ies or are members of organized armed groups416 , under int ernational humanitarian law, a member of an armed group has t o have a cont inuous combat funct ion t o const it ut e a legit imat e milit ary t arget . 417 221. In relat ion to the incidents where information about possible military object ives was available, t he commission examined whet her t he at t acks were in conformit y wit h t he principle of proportionality. The commission notes the official assert ion t hat “During t he 2014 Gaza Conflict, the IDF took st eps to ensure the collection of all reasonably available, t imely information regarding a t arget’s surroundings, focusing in particular on civilians and civilian object s that may be in its vicinity at the time of the attack, regardless of whet her an advance warning has been given. For example, remotely piloted aircraft flew over countless t arget s t o monitor the presence of civilians in real t ime. In addit ion, the IDF rout inely used engineers and damage-assessment specialist s t o assist wit h t he assessment of expect ed collat eral damage by considering t he specific circumst ances of each case (including t he t arget ’s surroundings, the means and methods used in t he attack, and so on).” 418 In most of t he incident s examined by t he commission and ot hers 419 , however, given t he following circumst ances: the fact that the targeted buildings except one were residential in nature; that t hey were located in densely populated areas; that the attacks were carried out when it could be expect ed t hat most family members would be at home (in t he evening or at dawn when families gat hered for iftar and suhhur, t he Ramadan meals, or during t he night when people were asleep); and t hat large weapons apparent ly meant t o raze buildings were used; it is possible t o conclude t hat a reasonable commander must have been aware t hat such an at t ack was likely to result in a high number of civilian casualt ies as well as in considerable dest ruct ion. Given the absence of information suggest ing in each case t hat t he ant icipat ed milit ary advantage at the time of the at t ack was such t hat t he expect ed civilian casualt ies and damage t o t he targeted and surrounding buildings were not excessive, t here are st rong indicat ions t hat t hese at t acks could be disproport ionat e, and t herefore amount t o a war crime. 420 Destruction of houses not resulting in deaths 222. Ot her groups of cases discussed above (at t acks against the houses of senior polit ical figures and of high ranking members of armed groups when t hey were not present ; and t hree high-rise buildings in t he last days of the conflict 421 ) also raise serious quest ions as t o

416

417

418

419

420 421

60

Israel, M inistry of Foreign Affairs, IDF Conduct During the 2014 Gaza Conflict, p. 18; at: http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed on 30 M ay 2015 ICRC, Interpretative Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, p. 71.

Israel, M inistry of Foreign Affairs,IDF Conduct of Operations during the 2014 Gaza Conflict, p.41 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf. Accessed 30 M ay 2015 B’Tselem, Black Flag, January 2015 and Amnesty International, Families under the rubble, November 2014.

Rome Statue, article 8.

The commission notes that, according to an official statement, “When analysing the proport ionality of an attack, the IDF takes into account not only the expected harm to civilians, but also the expected damage to civilian objects. In a few situations during the 2014 Gaza Conflict, the IDF determined that the anticipated military advantage from certain attacks on large multi-storey buildings was sufficient to justify the collateral damage to property. Because the

A/HRC/29/CRP.4

t he respect of the principle of distinction bet ween civilian object s and milit ary object ives.

T he commission has not received any specific information about the contribut ion of most of t hese buildings t o t he milit ary effort of armed groups in Gaza and how t heir dest ruct ion offered a milit ary advant age t o Israel. T he absence of t hat informat ion, combined wit h st at ements by members of the Israeli Government and t he IDF to the effect that “terrorist s’ homes and inst itut ions” 422 and t he home of a member of t he polit ical bureau in t he Gaza st rip were t arget ed, raise quest ions as t o whet her t hese t arget s const it ut ed legit imat e milit ary object ives. T he IDF lat er st at ed t hat many commanders of armed groups were using t heir homes as command centres and t hat it was t he command centres, rather than the homes t hemselves, t hat were t arget ed. 423 Alt hough issuing operat ional orders may be const rued as using a home for milit ary purposes, in order for it t o become a milit ary object ive, its dest ruct ion must offer a definite military advantage at the t ime of t he at t ack.

T he mere presence of a lapt op or a mobile phone used for milit ary purposes in t he apart ment, or the fact that meetings of a military nature had been held t here in the past , are not sufficient t o t urn a civilian object int o a milit ary object ive owin g t o t he ext remely limit ed military advantage t he dest ruction of the home would offer. Indeed, a meet ing can easily be held elsewhere, and mobile phones and lapt ops are port able and can be replaced when dest royed. As a milit ary expert who provided informat ion t o t he commission observed, a room t hat has in the past been used for meet ings of a milit ary nat ure and may also be so used in t he fut ure, in which t here are no weapons or complex equipment and where t here is no one present at the time of t he at t ack, cannot be regarded as a legit imat e milit ary objective. 424 Regarding t he dest ruct ion of high-rise buildings, a st at ement by an IDF General seems t o suggest t hat the objective of these st rikes was t o exercise pressure on t he “social elit e” of Gaza by dest roying t he high-rises; 425 t his can in no manner be considered as a legit imat e milit ary advant age under int ernat ional humanit arian law.

223. In t he absence of precise informat ion about t he possible milit ary use of t hese premises, t he commission is unable t o make a final assessment regarding t he principle of dist inct ion. However, t he massive scale of dest ruct ion and t he number of homes and civilian buildings at t acked raise concerns that Israel’s interpret at ion of what const it ut es a “military objective” is broader t han the definition provided by int ernat ional humanit arian law426 . Should at t acks have been direct ed against buildings t hat did not const it ut e a milit ary object ive t his may amount t o a war crime.

422 423

424 425

426

IDF reasonably anticipated that each of the attacks would yield sufficiently significant military advantage from the destruction of multiple command and control centres and arms depots located in each building, the IDF carried out the attacks (after employing a multi-tiered system of warnings, including repeated phone calls to residents and neighbours). Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 43; at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf .Accessed 30 M ay 2015 See footnote 397 Lecture by M AG M ajor General Dani Efroni at the Institute for National Security Studies (INSS) conference: Challenges of Warfare in Densely Populated Areas, 2 December 2014, see IDF report on lecture : http://www.law.idf.il/163-6967-he/Patzar.aspx. Op. cit. note 235. http://www.idf.il/115320893-he/Dover.aspx M eeting of the commission with Colonel (ret) Richard Kemp, 20 February 2015.

Yair Naveh, M aj. Gen. formerly served as Deputy Chief of Staff, as principal infantry and paratroopers commander, commander of the Gaza Division, Commander of the Home Front Command, and GOC Central Command: Deterrence against Non-State Actors: Thoughts following Operation Protective Edge; INSS Insight No. 663, 11 February 2015, p.3. At: http://www.inss.org.il/index.aspx?id=4538&articleid=8720.

Customary rule reflected in article 52 (2) API.

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Weapons used 224. Many of t he strikes described in t his chapter, e.g. on the Al Hajj, Al Dali, Abu Jama, Dheir, Abu Jabr and Al Bat sh houses, apart from causing deat h and injury, led t o t he t ot al or part ial destruction of entire buildings as described by many wit nesses and illust rat ed by pict ures. This is also noted by UNITAR-UNOSAT , which, on t he basis of it s analysis of sat ellit e imagery, found t hat “[m]any buildings across t he Gaza St rip were likely st ruck by laser guided air dropped munit ions which are capable of collapsing a large building wit h relat ively moderate damage t o surrounding areas. […] All are obviously visibly collapsed while surrounding buildings are not , t hough surrounding buildings cert ainly experienced some form of collateral damage from t he munit ions impact ing t he primary t arget s. Such damage examples are widespread wit hin t he int erior of t he Gaza St rip.” 427 225. T he cases examined and ot her available evidence show t hat large air -dropped weapons wit h highly dest ruct ive potential, widely employed during Operat ion “P rot ect ive Edge”, were used in many incident s (see in particular the sect ions on Al Salam, Al Bat sh, Al Dali and Abu Jama and t he mult i-st orey buildings above). T he commission not es Israel’s assert ion that “during the 2014 Gaza Conflict, whenever feasible, t he IDF select ed munit ions t hat would minimise pot ent ial civilian casualt ies and injuries, while st ill achieving t he object ive sought . In t his regard, whenever feasible, t he IDF conduct ed pinpoint aerial st rikes, using precision-guided munit ions.” 428 As an NGO conduct ing research on t he use of weapons by Israel in Gaza last summer found: “Many of t he aerial munit ions used, while more accurate than their historic predecessors, still have a wide-area effect because of t heir size and power. One munit ion used by t he Israeli Air Force is t he Mk-84, a high-explosive bomb fit t ed wit h a guidance syst em t hat weighs 2,000lb.” 429 Similarly, concerning t he GBU-31, which appears to have been used in several of t he cases described above, engineers and weapons designers report edly st at ed t he following: “The explosion creates a shock wave exerting thousands of pounds of pressure per square inch. By comparison, a shock wave of 12 psi will knock a person down; and the injury threshold is 15 pounds psi. The pressure from the explosion of a device such as the Mark 84 JDAM can rupture lungs, burst sinus cavities and tear off limbs hundreds of feet from the blast site, according to trauma physicians. When it hits, the JDAM generates an 8,500 degree fireball, gouges a 20-foot crater as it displaces 10,000 pounds of dirt and rock and generates enough wind to knock down walls blocks away and hurl metal fragments a mile or more. There is a very great concussive effect. Damage to any human beings in the vicinity would be pretty nasty.”430 226. T he above analysis has been confirmed by milit ary expert s consult ed by t he commission. In relat ion t o t he use of t he GBU -32/MK-82, 1000lb bomb or t he GBU31/MK-84, 2000lb bomb, which were used in several of t he above-ment ioned incident s, regardless how precise t he bomb is, it remains ext r emely quest ionable whet her a weapon 427

428

429

430

62

UNITAR-UNOSAT: Impact of the 2014 Conflict in the Gaza Strip. UNOSAT Satellite Derived Geospatial Analysis; 2014; p. 11. At: https://unosat.web.cern.ch/unosat/unitar/publications/UNOSAT_GAZA_REPORT_OCT2014_WEB. pdf Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p.

38at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf, Accessed 30 M ay 2015.

Action on Armed Violence, Under fire Israel’s artillery policies scrutinised, December 2014, p. 15.

At: https://aoav.org.uk/wp-content/uploads/2015/03/AOAV-Under-Fire-Israels-artillery-policiesscrutinised.pdf.

San Diego Union Tribune, 21 M arch 2003 at: http://legacy.utsandiego.com/news/world/iraq/20030321-9999_1n21bombs.html (accessed on 22 April 2015).

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wit h such a wide impact area allows it s operat ors t o adequat ely dist inguish bet ween civilians and civilian objects and t he military objective of the at t ack, when used in densely populat ed areas. At t acks, which used t his t ype of weapon in densely populat ed, built up areas of Gaza, are t herefore likely t o const it ut e a violat ion of t he prohibit ion of indiscriminat e at t acks. 431 Groups of civilians with young children killed while outside 227. In t hree cases examined by t he commission, groups of individuals were st ruck in the st reet or on the roof. The groups included young children, in two cases when t hey fled t heir houses (Al Sayam – 7 children killed and 3 injured, including one baby; and Al Farra – 5 children aged under 12 killed and one baby injured) and in one case while t hey were on t he roof (t hree Shuheibar children killed, all under 12 years old).

228. T he commission notes that in all three cases precision weapons appear t o have been used, which indicat es t hat specific objectives were targeted. The onus is on Israel t o make available information about those objectives and explain how at tacking t hem contribut ed t o milit ary action. Only once that information is known can the legality of the attacks in terms of dist inct ion, proport ionalit y and precaut ions be assessed. Unless t here were legit imat e milit ary objectives, the targeting of civilians not t aking part in t he host ilit ies would be a violat ion of t he principle of dist inct ion 432 and could const it ut e a direct at t ack against civilians, a war crime under int ernat ional criminal law. 433 229. In t he event t hat a member of an armed group was part of t he group fleeing t he house, as alleged in t he Al Farra and possibly t he Sayam cases, t he at t ack raises quest ions wit h regard t o t he principles of proport ionalit y and precaut ions. T he IDF’s surveillance capacit y, combined wit h the likelihood t hat a group of persons fleeing a house t hat has just been bombed in t he middle of t he night would include a number of civilians, are st rong indicat ions t hat the IDF failed in its obligat ions to take all feasible measures t o avoid or at least t o minimize incident al harm t o civilians.

230. T he commission notes that, according t o official Israeli sources, t he IDF abandoned air st rikes when t he presence of civilians was det ected434 . Therefore, since there are grounds t o believe t hat t he IDF had t he capacit y t o det ermine t he civilian nat ure of t he (vast majorit y of people) in the groups fleeing the house and of t he children on t he roof, it may have breached it s obligat ions to take all feasible measures to avoid or at least t o minimize incident al harm t o civilians. In addit ion, unless t he ant icipat ed milit ary advant age of neut ralizing a purported member of an armed group was such t hat the expected deat h o f the civilians in t he group, many of whom were children, would not be excessive, t his at t ack could be deemed disproport ionat e.

Precautions 231. T he IDF has repeatedly st at ed t hat it t akes precaut ionary measures t hat are more st ringent t han t hose required by int ernat ional humanit arian law, 435 in order t o prot ect

431 432 433 434

435

AP I, article 51(4).

AP I, articles 51 and 52.1 Rome Statue, article 8.

Israel M inistry of Foreign Affairs, Israel minimizes civilian casualties. At http://mfa.gov.il/M FA/ForeignPolicy/Issues/Pages/Israel-minimizes-civilian-casualties.aspx.

See IDF web-site: Aerial Strikes against Terrorists: Some Legal Aspects. At: http://www.law.idf.il/592-6584-en/Patzar.aspx, see also the lecture by M AG M ajor General Dani Efroni at the Institute for National Security Studies (INSS) conference: Challenges of Warfare in

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civilians in Gaza. Some of t he precautionary measures adopted by t he IDF in the context of airst rikes during t he summer of 2014 included: phone calls and t ext messages warning resident s in t argeted buildings, or t hose in the immediate vicinity, of an impending at t ack; dropping leaflet s in a neighbourhood; delivering warning shots to the roof; and abandoning air st rikes when t he presence of civilians was det ect ed.

Timing 232. In relat ion to the timing of attacks, in a number of the above incident s and incident s researched by ot hers, the commission observes that Israeli aut horities indicated that, wit h a view t o minimizing collateral damage, “the Civil and Liaison Administ rat ion updat ed IDF operat ional entities wit h det ailed informat ion concerning prayer t imes and t he ift ar fast (during which t imes large family gat herings are held)”. 436 Yet many of t he at t acks t ook place in t he evening as families gat hered for iftar, t he Ramadan meal t o break t he fast , during t he night when people were asleep; or in t he early morning during suhhur, t he last meal before dawn, which increased t he likelihood t hat many persons, often entire families, were at home. If the target was an individual, it can be quest ioned whet her t he individual could not have been t arget ed at another time or location. This is particularly apparent in the st rike on the Al Salam tower, where it appears that the target was a commander of Islamic Jihad’s milit ary wing, who, according to an eyewitness, had left t he building several t imes in t he days preceding t he attack, which indicates t hat there may have been the possibility to t arget him elsewhere, when fewer civilians were in the vicinity. International humanit arian law requires t hat all feasible precaut ions must be t aken t o avoid or at least t o minimize incident al loss of life and damage t o civilian objects. This includes t he choice of the t iming of t he attack.437 There are concerns that this requirement may not have been complied wit h in some of t he cases examined by t he commission.

Warnings and their effectiveness 233. Warnings are report ed t o have been issued in t wo of t he cases examined by t he commission (Kaware and Dheir, alt hough lit t le is known in relat ion t o t he lat t er, as all persons present in the house died). In respect of t wo other cases (Al Sayam and Al Farra), unconfirmed reports indicate t hat t here may have been “roof -knocks”. In t he remaining eleven cases, no report s of warnings were received. Similarly, Amnest y Int ernat ional examined eight cases of airst rikes in which civilians were killed and found t hat “in all cases, no prior warning was given t o t he civilian resident s t o allow t hem t o escape.” 438 Different types of warnings are report ed t o have been issued in advance of t he st rikes on t hree multi-storey buildings and one shopping cent re in the last days of the conflict , which warnings appear t o have been effect ive, since t he buildings were vacat ed and nobody was killed. However, at least 25 people were injured as a result of t he st rikes.

234. T he commission not es t hat at t acks on more t han 200 resident ial buildings by air st rikes result ed in no civilian casualties. This indicates that specific warnings by t he IDF t o inhabit ants of these buildings were effect ive in many cases. This is further illustrated by t he dest ruct ion, between 23 and 26 August 2014, of three buildings each housing several dozen apart ments, which did not result in any civilian deat hs. Residents of the buildings, and often

436

437

438

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Densely Populated Areas, 2 December 2014, see IDF report on the lecture: http://www.law.idf.il/1636967-he/Patzar.aspx.

Israel M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 37 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf, . Accessed 30 M ay 2015 AP I, article 57(3). AP II article 13(1). ICRC, Database customary international humanitarian law, Rule 17.

Amnesty International, Families under the rubble, November 2014, p. 5.

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t heir neighbours, received phone calls inst ruct ing t hem t o evacuat e and in some cases warning t hem t o keep a safe dist ance from t he t arget ed buildings. 439 T he commission considers t hat the issuing of warnings concerning specific air st rikes, via phone calls and t ext messages is a good pract ice, through which Israel attempted t o respect its obligat ion t o give advance warnings of at t acks, where feasible, so as t o minimize civilian casualt ies.

However, in a number of cases, t hese phone warnings did not comply with the requirement of int ernat ional humanit arian law t hat part ies t o a conflict should provide “effect ive” advance warning of at t acks t hat may affect the civilian population, unless circumstances do not permit . 440 According t o St at e pract ice, warnings are not required when at t acks necessit at e the element of surprise, when t hey would put t he security of the attacking forces at risk, or when speedy responses are needed. 441 “Roof-Knock” warnings 235. According t o official Israeli sources, “IDF assessments show that the employment of “roof knocking” was highly effective, preventing many civilian injuries and deat hs during t he 2014 Gaza Conflict.” 442 The commission observes, however, that some of t he incident s examined in t his sect ion raise serious concerns regarding t he eff ect iveness of “roofknocking”.

236. In some cases, it appears that concerned persons did not understand that t heir house had been t he subject of a “roof-knock”, such as t he in case of t he Dheir home, where t he family in t he house did not underst and that the strike was a warning unt il they were t old by a neighbour t hat t hey had t o flee. While on t heir way out , 19 out of t he 22 individuals present in t he house died, including 9 children 443 . In t wo ot her cases, 444 families fled buildings following an air st rike on t he roof or t op floor believing t hat t he st rike was a warning, only t o be st ruck by a t argeted missile once outside the house and on t he street. On t he basis of t heir research int o large numbers of at t acks of houses, many NGOs have expressed doubt s about t he effect iveness of t he war nings issued during Operat ion P rotective Edge. 445 For instance, B’Tselem indicated t hat “[t]his was especially so when the “knock on t he roof” met hod was used while t here were ot her at t acks in progress in t he vicinit y and residents could not tell apart the smaller missile hitting the roof of t heir house.

In ot her cases, residents who had been warned did leave t he house, but people living nearby – who had not received a warning – were hurt when t heir homes also sust ained damage in t he at tack.”446 The confusion caused by “roof-knocks” is underst andable in such a densely populat ed area. Often, there are several buildings of 4, 5 or 6 floors adjoined. When a roof is hit by a st rike it t hus becomes very difficult for people locat ed on t he lower floors t o underst and whet her t he warning was t argeting their own building, or t he one to t he left , t o t he right , behind or in front , or across t he narrow st reet ; t hus t he “roof-knock” warning raises t he quest ion whet her fleeing might put one more at risk t han st aying put .

439 440 441

442

443 444 445

446

Amnesty International, Nothing is Immune, 19 December 2014.

AP I, article 57(2).

Jean M arie Henckaerts and Louise Doswal-Beck, Customary International Humanitarian Law, Cambridge, 2006, p. 64.

Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 37 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf. Accessed 30 M ay 2015.

W079 and W080.

See Sayam and Al Farra cases above.

B’Tselem, Black Flag, January 2015, p. 51, 52; see also: FIDH: Trapped and Punished: The Gaza Civilian Population under Operation Protective Edge, pp. 15-30; see also OCHA. Situation report, 14 July, p. 2, http://www.ochaopt.org/documents/ocha_opt_sitrep_15_07_2014.pdf; Physicians for Human Rights, Findings of an Independent M edical Fact-Finding M ission, Gaza 2014, p. 40 ff. http://www.btselem.org/download/201501_black_flag_eng.pdf, p. 51, 52

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237. T he short t ime lapse bet ween t he “roof-knock” st rikes and t he act ual st rike t hat result ed in t he dest ruction of the building is also cause for concern. In cases document ed by t he commission 447 and by NGOs448 only a few minut es (between 3 and 5) elapsed bet ween t he t wo st rikes. If t he “roof-knock” is t he first warning, a few minut es are clearly not sufficient to allow a mult i-st orey building inhabit ed by families wit h children and elderly and somet imes disabled persons t o be evacuat ed, taking int o account t he t ime required t o realize t hat t he st rike was meant as a warning. In one case document ed by an IDF video present ing an audio recording of a conversat ion bet ween an IDF soldier and a resident of Gaza, while showing t he image of a building surrounded by many ot hers, t he IDF officer only provides five minut es for the person to leave the house before a neighbouring building is dest royed. 449 T he IDF video also highlight s anot her problem t hat may render advance warnings ineffect ive. In an area with buildings all around, how can t he recipient of such a “roof-knock” know which building he or she should avoid if t his is not specified in t he message? Based on t he warning t hat a building close t o one’s own will be t arget ed, while a person may be willing t o leave t he house, he or she cannot know in what direct ion t o escape. It seems that in such cases t he phone call warnings are not effect ive as required by int ernational humanitarian law. In addit ion, by giving a warning, t he IDF accepted t hat t he at t ack did not require t he element of surprise; accordingly, t here appears t o be no reason why more t ime was not granted t o the residents of the house t o evacuate. This analysis was echoed by a milit ary expert who provided informat ion t o t he commissioners: “If you are giving a warning you know t hat you have lost the element of surprise and there is no reason for cut t ing it short ”. 450 238. Furt hermore, according t o a former Head of t he International Law Department of the MAG Corps, t he “roof-knock” technique was conceived as a final precautionary measure to make it clear that the IDF was serious about previous warnings and precaut ions and t o give persons t hat may be affect ed by t he impending at t ack an addit ional and possibly last opport unity to escape.451 The use of “roof-knocking” as a complement t o ot her warning met hods was examined in one case by t he commission, 452 and in a number of cases document ed by non-governmental organizations. 453 However, the commission is unable t o verify whet her “roof-knocking” was syst emat ically combined wit h ot her warnings and whet her t here were cases in which “roof-knocking” was t he only form of specific – and ambiguous – warning civilians received.

239. Based on it s findings, t he commission concludes t hat the “roof-knocking” t echnique is not effect ive, in part icular if not combined wit h ot her specific warnings.

240. T he commission also underlines t hat t he ext ent of it s effort s deployed t o provide warnings t o t he civilian population, and of their effectiveness, does not relieve an att acking part y of its obligation to respect all t he ot her principles on t he conduct of host ilit ies, in part icular dist inction and proportionality. Nor does t he fact t hat an effect ive warning has been given alt er t he civilian st at us of t hose who have not heeded t he warning.

447 448

449

450 451 452 453

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See Dheir case above.

Physicians for Human Rights, Findings of an Independent M edical Fact-Finding M ission, Gaza 2014, p. 43-44.

IDF video showing a warning call that was made to the neighbour of building that was about to be targeted. Available at http://mfa.gov.il/M FA/ForeignPolicy/Issues/Pages/Israel-minimizes-civiliancasualties.aspx M eeting with Colonel (ret) Richard Kemp, 20 February 2015.

Video conference with Daniel Reisner, 22 January 2015.

See Kaware case above.

E.g. Physicians for Human Rights, Findings of an Independent M edical Fact-Finding M ission, Gaza 2014, p. 43

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241. While t he commission cannot know what precaut ionary measures were t aken by t he IDF in each at t ack, based on a number of cases, t here are concerns t hat t he IDF may not have done everyt hing feasible t o verify whet her civilians were present in t he buildings select ed for at t ack and t o assess whet her t he impending st rike would result in civilian casualt ies and damage t o civilian object s, which would be excessive in relat ion t o t he ant icipated military advantage. The incidents examined in this section point t o a po t ent ial failure by t he IDF t o take all appropriate measures to avoid or at the very least t o minimize deat h and injury t o civilians and damage t o civilian object s. 454 242. T he limit ed effect iveness of t hese precaut ionary measures must have become abundant ly clear during t he early days of t he operat ion, given t hat many buildings were complet ely dest royed t ogether with their inhabitants. The apparent lack of st eps t aken t o re-examine these measures in light of the mounting civilian toll suggest s t hat Israel di d not fully comply wit h it s obligat ion t o t ake all feasible precaut ions in at t ack. 455 Tactics of targeting residential buildings and impact on civilians including women and children 243. OCHA found t hat at least 142 Palestinian families had three or more members killed in t he same incident as a result of attacks on resident ial buildings, amount ing t o a t ot al of 742 fat alities. 456 Al Mezan and Lawyers for Palestinian Human Rights reported t hat at least 1,066 family members had been killed inside t heir homes457 , which means that a significant percent age of civilians killed during t he conflict died inside t heir home as a direct result of air-st rikes or artillery shelling of t heir neighbourhoods, making at t acks on houses a key feat ure of t he conflict. This is consist ent wit h findings by P hysicians for Human Right s, which on t he basis of numerous int erviews, including wit h 68 persons wit h injuries, described “[a] consist ent picture of people injured or killed while in, or very close t o, t heir homes. 458 T hey also report that around 60 per cent of the incidents they researched involved at t acks that took place either at home or in someone else’s home. 459 The commission not es t he large number of t arget ed at t acks against resident ial buildings and t hat such at t acks cont inued t hroughout Operat ion ‘P rot ect ive Edge’, even aft er t he dire impact of t hese at t acks on civilians and civilian object s became apparent , and were int ensified again t owards t he end of t he operat ion. 460 In addit ion, figures show t hat st rikes on homes and ot her buildings t hat were prima facie civilian, irrespective of whet her or not civilians were killed or injured, were massive and dest ruct ive. These observations raise concern that t hese st rikes may have constituted military tactics reflective of a broader policy, approved at least

454 455

456 457

458

459

460

AP I, Article 52.

This conclusion is supported by the ICTY in the Kupreskic Judgement of 2000. When discussing respect for the principle of distinction and proportionality, the trial chamber concluded that: a “pattern of military conduct may turn out to jeopardize excessively the lives and assets of civilians.”

OCHA, Fragmented Lives, M arch 2015, p. 4.

Al M ezan Center for Human Rights, Lawyers for Palestinian Human Rights (LPHR), 22 M ay 2015 up-date to a complaint submitted concerning large-scale destruction and damage to family houses in the Gaza Strip with associated profound loss of life and injury to Palestinian residents, during Israel’s military operation between 7 July 2014 and 26 August 2014, 30 September 2014, original complaint available at: http://lphr.org.uk/legal-projects/gaza-accountability-project/ .

Physicians for Human Rights, Findings of an Independent Medical Fact-Finding Mission, Gaza 2014, p.40.

Physicians for Human Rights, Findings of an Independent Medical Fact-Finding Mission, Gaza 2014, p.36.

Response to the Israeli Embassy in London’s reaction to the report by Amnesty International, Nothing is Immune, December 2014. At: https://www.amnesty.org/en/documents/mde15/036/2014/en/.

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t acit ly by decision-makers at the highest levels of the Government of Israel 461 . Such t act ics appear t o have priorit ized t he perceived milit ary object ive over ot her considerat ions, disregarding t he obligat ion to minimize effects on civilians. In this context, with respect t o t he importance of adhering t o the principles of dist inct ion and proport ionalit y, t he ICT Y has ruled t hat in some circumst ances a “pat t ern of milit ary conduct may t urn out t o jeopardize excessively t he lives and asset s of civilians” 462 .

244. T hese t actics also rendered women and children particularly vulnerable t o deat h and injury. Out of t he 216 people killed as a consequence of t he st rikes discussed in t his chapt er, 50 were women. In 11 out of the 15 cases examined by t he commission the st rikes on resident ial buildings led t o t he deat h of bet ween 3 and 7 women. Findings of several NGOs t hat point t o significant numbers of female casualt ies, in part icular as a result of st rikes on residential buildings463 , reinforce this assessment. It appears t hat , as a result of t hese t act ics, t he percent age of women killed during t he 2014 host ilit ies significant ly increased in comparison wit h t he conflict in 2009. 464 115 children were killed in t he 15 cases examined by t he commission (more than half of all fatalities). Children were killed in all 15 incident s. In the attack on the Al Dali building in Khan Younis, 18 of t he 31 people killed were children; in t he at t ack on t he Abu Jama home described above, 19 out of 26 killed were children. 465 3.

Ground Operations 245. “We don’t want to confuse the troops, and that’s the story. When I teach people to fight in a war, the civilian population is not supposed to be there, and if it is, I persuade it to keep away. In peacetime security, soldiers stand facing a civilian population, but in wartime, there is no civilian population, just an enemy.” Head of t he Doctrine Desk at t he Infant ry Corps HQ, Major Amit ai Karanik 466

461

462 463

464

465

466

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In this context, see the ICTY’s Kupreskic Judgement of 2000; see also: Amnesty report, p 6 and 42; see also FIDH, Trapped and Punished: The Gaza Civilian Population under Operation Protective Edge, p. 29, 30, at https://www.fidh.org/IM G/pdf/report_gaza_fidh_march_2015.pdf.

ICTY in the Kupreskic Judgement of 2000.

According to NGO figures, 241 women were killed inside their homes, which means that about 82 percent of the 2014 female fatalities occurred in homes, compared to 46 percent of the male fatalities.

See also B’Tselem: Black Flag and the infographic “Families bombed at home, Gaza, July -August 2014” based on preliminary figures on casualties in July: http://www.btselem.org/gaza_strip/201407_families (in 72 incidents of bombing or shelling, 547 people were killed, including 125 women under the age of 60 and 29 people over the age of 60.

The percentage of women killed was significantly higher in 2014 (20.2 per cent of civilians) in comparison with the conflict in 2009 (14 per cent), calculated based on conservative NGO figures (B’Tselem quoted in A/HRC/12/48, p. 90). See also: PCHR, Through Women’s eyes, 2014, which indicated that about 10 per cent of the civilians killed as a result of the 2008/09 escalation were women, whereas this figure rose to about 20 per cent in 2014.

370 of the children killed were reportedly killed inside their homes, i.e. over 66 per cent. Al M ezan Center for Human Rights, Lawyers for Palestinian Human Rights (LPHR), 22 M ay 2015 up -date to a complaint submitted concerning large-scale destruction and damage to family houses in the Gaza Strip with associated profound loss of life and injury to Palestinian residents, during Israel’s military operation between 7 July 2014 and 26 August 2014, 30 September 2014, original complaint available at: http://lphr.org.uk/legal-projects/gaza-accountability-project/ .An infographic published by B’Tselem based on preliminary figures on fatalities as a result of “families bombed at home” in July shows that out of 547 persons killed, 250 were minors. B’Tselem, Families bombed at home, Gaza, July-August 2014, at: http://www.btselem.org/gaza_strip/201407_families.

BaYabasha, Ground Forces Journal. Avigail Bukobza: Involved fighting; October 2014, No. 29, p. 62 Unofficial translation. at: http://www.scribd.com/doc/249616628/29- ‫ביבשה‬- ‫גליון‬

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246. Aft er an initial air phase that started on 8 July, on 17 July 2015, t he IDF launched a ground operat ion into Gaza. Official Israeli sources indicat ed t hat t hey did so t o degrade “t error organisations’ milit ary infrast ruct ure, and [… neut ralize] t heir net work of crossborder assault t unnels”. 467 This followed what Israel described as “a militant at t ack inside Israel on 17 July carried out through a t unnel from inside Gaza, t he launch of an unmanned aerial vehicle (UAV) into Israeli airspace, an at t empt ed infilt rat ion by sea int o Israel by Hamas naval commandos, continued rocket fire from Gaza and Hamas’s refusal to accept a ceasefire.”468 T he ground operat ion combined t he use of ground t roops and armoured vehicles wit h t he aim of dest roying t unnels and debilit ating Palestinian armed groups from launching at t acks int o Israel. T he ground operat ion was preceded and accompanied by int ense IDF shelling from t he sea and from t he air, as well as by fierce art illery fire. 469 247. Israel informed t he UN’s Board of Inquiry that “Hamas had been bet t er prepared and armed t han at the time of Operation Cast Lead in 2009 and Operation P illar of Defense in 2012. It had prepositioned weapons and military equipment and prepared fighting positions in various locat ions t o allow fighters to move freely wit hout carrying weapons and t o blend int o t he civilian population. Mosques, schools, hospitals and other civilian objects had been used t o embed rocket s, weapons caches and command cent ers. T hese condit ions made it difficult for t he IDF t o dist inguish “enemy” forces and act ivit y from t he civilian populat ion….”470 248. T he commission focused it s inquiries on t he ground operat ions in t he neighbourhoods of Shuja’iya (19-20 July), Khuza’a (20 July- 1 August ), Rafah (1-3 August ) and t he operation target ing t he market neighbourhood of Shuja’iya (30 July). T he commission conduct ed 75 int erviews in relat ion t o t he ground operat ions, reviewed confident ial submissions from a variet y of st akeholders, government al and nongovernment al, and consult ed publicly available informat ion, including sat ellit e imagery, video and phot o mat erial.

249. By let t er dat ed 10 February 2015, t he commission of inquiry request ed t he Israeli aut horities t o furnish informat ion “on several general issues and clarify […] t he fact ual circumst ances of specific incident s”. T he let t er specifically inquired about t he milit ary operat ions examined in t his chapter, including t he IDF crit eria for dist inguishing bet ween milit ary objectives and civilian objects; evaluation of proport ionalit y; what precaut ionary measures were t aken and t he timeframes when warnings were given; t he IDF doct rine on t he use of art illery in densely populat ed areas; t ype and quant it y of ordnance used; IDF policy wit h regard t o medical assist ance t o wounded persons and which measures were t aken t o facilit at e t he evacuat ion of wounded civilians; t he number of casualt ies; and whet her any investigat ions were initiat ed. In addit ion, t he let t er referred t o many of t he specific incident s t hat are discussed below. T he commission did not receive a response.

T herefore, to the extent possible, the commission assessed mat erials in t he public domain.

In part icular, the MAG issued a st at ement about the events at Shuja’iya m arket on 30 July.

It is referred t o in t he relevant sect ions of t he t ext .

250. The combined impact of these ground operations has had a devastating impact on the population of Gaza, both in terms of human suffering as well as in terms of damage to the infrastructure. The four operations described below have resulted in the killing of at

467

468 469 470

Israel M inistry of Foreign Affairs, Israel’s Objectives and Phases of the 2014 Gaza Conflict, p. 3. at: http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed 30 M ay 2015.

Quoted in S/2015/286, p. 3 OCHA, Situation Report, 18 July 2014 S/2015/286; p.3

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least 150 civilians, the total destruction of over 2000 homes, and the partial destruction of at least 2200 homes. a.

Shuja’iya, 19 and 20 July 2014 251. “I was there and I can tell you, the earth moved under our feet.” Israel Defence Forces (IDF) art illery Officer present in Shuja’iya 471 252. “The attacks were everywhere. Everything was coming under attack, the roads and the buildings; there was no safe haven in Shuja’iya. It would have been impossible. […] We walked as the missiles kept arriving. We saw bodies of people in the streets. We came across the body of [..] an acquaintance of mine from our neighbourhood. We came across several other bodies of people. The corpses were of young and old persons, women, children, etc.” Wit ness from Shuja’iya 472 253. “A hell of a pinpoint operation.” John Kerry, U.S. Secret ary of St at e 473 254. “Dozens more civilians, including children, have been killed in Israeli military strikes in the Ash Shuja’iyeh neighborhood in Gaza. I condemn this atrocious action. Israel must exercise maximum restraint and do far more to protect civilians.” UN Secret aryGeneral Ban Ki-moon, 20 July 2014 474 255. T he Shuja’iya neighbourhood is locat ed in the northern part of the Gaza st rip, east of Gaza cit y and close t o the Green line. Shuja’iya is also one of t he most densely populat ed neighbourhoods in Gaza, wit h a populat ion of 92 000 concent rat ed in an area of around 6 km². T he IDF alleged t hat numerous Palestinian armed groups had set up observat ion points in Shuja’iya and t hat the neighbourhood had developed int o a significant network of tunnels and weapons caches serving as a plat form for at t acking Israel and result ing in “it s det erioration from a civilian resident ial area int o a t errorist fort ress” 475 . T he IDF also claimed t hat , bet ween 8 and 20 July, Hamas fired over 140 rocket s from Shuja’iya int o Israel. 476 Israel’s Ministry of Foreign Affairs added t hat ten t unnels were uncovered in t he neighbourhood. 477 256. T he commission interviewed over 40 witnesses - mostly from the areas of Baghdad, Al Mansoura and Al Nazzaz St reet s - in relation to the ground operat ion in Shuja’iya. T he commission also analysed submissions from a wide range of sources, confident ial and public document s, including imagery, photos and videos. Below is a descript ion of the most salient incident s in chronological order.

471

472

473

474

475 476 477

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Tamid Tothan, Association of artillery veteran’s magazine. Yaakov Zigdon: Shuja’iyas earth was moving; September 2014, No. 57, Pg.18-19, unofficial translation. at: http://www.beithatothan.org.il/magazin/30_10_2014/book.html#p=19 W126

See video and report by the Washington Post, 20 July 2014, at: http://www.washingtonpost.com/blogs/post-politics/wp/2014/07/20/fox-confronts-kerry-with-hotmic-comment-on-israel-hell-of-a-pinpoint-operation/ OCHA: Gaza Emergency Situation Report of 22 July 2014. At: http://www.ochaopt.org/documents/ocha_opt_sitrep_22_07_2014.pdf IDF blog at: http://www.idfblog.com/blog/2014/07/20/shujaiya-hamas-terror-fortress-gaza/ See IDF blog: http://www.idfblog.com/blog/2014/07/20/shujaiya-hamas-terror-fortress-gaza/ Israel M inistry of Foreign Affairs. Operation Protective Edge: Israel under fire, IDF responds; 26 Aug 2014. At: http://mfa.gov.il/M FA/ForeignPolicy/Terrorism/Pages/Rise-in-rocket-fire-fromGaza-3-Jul-2014.aspx

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IDF warnings and displacement 257. P rior to launching the ground operation, the IDF issued warnings t o t he inhabit ant s of Shuja’iya about it s int ention to attack several targets in the neighbourhood and called on t hem t o evacuate their homes and move to the centre of Gaza City until further notice 478 by means of leaflet s, loudspeaker announcement s, t elephone calls, t ext message s and radio messages. 479 According t o a wit ness, on 16 July, leaflet s were dropped over Shuja’iya announcing t he IDF’s intention to intensify their raids in t he area and instruct ing people t o leave t he cit y cent re of Gaza 480 .

258. On 20 July 2014, OCHA reported t hat by 19 July “the majority of Ash Shuja’iyeh’s 92 000 resident s had remained in t heir homes, despite Israeli warnings during t he previous days. However, upon t he intensification of bombardments, it is estimated t hat up t o half of t hem have now fled t o Gaza Cit y.” 481 Ground operation and attack on IDF convoy 259. In t he evening of 19 July 2014, the IDF’s Golani Brigade st arted a ground operat ion int o Shuja’iya. On 20 July at approximately 1.30 a.m., an explosive device was det onat ed on an IDF armoured vehicle, causing t he deat h of seven soldiers. At the same time, in other areas of Shuja’iya, IDF soldiers came under at t ack from P alest inian armed groups, ult imat ely result ing in t he deat h of anot her 6 IDF soldiers. 482 260. According t o informat ion received by t he commission, t he IDF t hen sought t o ret rieve the bodies of t he dead soldiers and t he dest royed armoured vehicle, evacuat e t he injured soldiers and respond t o t he Palestinian armed groups’ count er-offensive. At the time not all of the soldiers were account ed for, raising fear of a possible abduct ion. T he media report ed the Israeli Minister of Defense Moshe Yallon as st ating that the intensified shelling aimed at rescuing a number of injured Israeli soldiers. 483 In t his cont ext , t he IDF heavily shelled t he area for more t han six hours. Wit ness st at ement s, video and phot o document at ion (including sat ellit e imagery), Unit ed Nat ions Inst it ut e for T raining and Research Operat ional Sat ellite Applications Programme (UNITAR-UNOSAT) assessments based on sat ellite imagery, media and IDF sources – all but t ress a conclusion that extensive amount s of explosive weapons, including art illery, mort ars, and rocket s were fired on Shuja’iya by t he Israeli Air Force. T hat init ial shelling led t o numerous casualt ies. A paramedic who worked at t he call cent re of t he relevant area in Shuja’iya, which sends ambulances t o people calling for help, recount ed t o B’T selem t hat he and his colleagues received “more than 200 calls from the neighbourhood of a -Shujai'yeh. I can say with almost absolute certainty that we received a call from every single house in the areas I mentioned [a-Nazaz Street, a-Sha'ath Street, and al-Beltaji Street]. During the calls, we

478

479

480

481 482

483

See IDF blog IDF Drops Warning Leaflets in Gaza. 17 July 2014 with texts at: http://www.idfblog.com/blog/2014/07/17/idf-drops-warning-leaflets-gaza/ M inistry of Foreign Affairs web-site. Israel minimizes civilian casualties; 24 July 2014; at: http://mfa.gov.il/M FA/ForeignPolicy/Issues/Pages/Israel-minimizes-civilian-casualties.aspx W134; OCHA: Gaza Emergency Situation Report (as of 16 July 2014, 1500 hrs), p. 1; at: http://www.ochaopt.org/documents/ocha_opt_sitrep_17_07_2014.pdf OCHA Gaza Emergency Situation Report; 20 July 2014, p.2 Israel M inistry of Foreign Affairs. Operation Protective Edge: Israel under fire, IDF responds; 26 Aug 2014. At: http://mfa.gov.il/M FA/ForeignPolicy/Terrorism/Pages/Rise-in-rocket-fire-fromGaza-3-Jul-2014.aspx Isramedia. Statement by PM Netanyahu and DM Yaalon, 20 July 2014; at http://www.isramedia.net/forum/2/%D7%97%D7%93%D7%A9%D7%95%D7%AA?p=33557

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could hear young children screaming in the background and women crying. People had been injured and killed in every home we got a call from.”484 261. T he commission examined several incident s t hat occurred during t he IDF’s operat ion in Shuja’iya, taking t est imonies from numerous wit nesses, many of whom had survived at t acks on t heir homes.

262. Al Helo family: On 20 July at about 3 a.m., two missiles st ruck t he house of T alal Mahmoud Hamed Al Helo, which is locat ed next t o Jihad Mahmoud Al Helo’s house in Nasas St reet in t he Shuja’iya neighborhood. Shortly t hereaft er, Jihad Mahmoud Al Helo’s own house was st ruck, and 11 Al Helo family members, including 4 children ( among others 2 six-mont h old t wins) and 4 women, were killed. T he t hree-st ory house was t ot ally dest royed. 485 Given t he dest ruct ion caused and t he wit ness t est imonies, t he weapon used was most likely a large explosive bomb.

263. T alal Mahmoud Hamed Al Helo told t he commission t hat he was at home wit h his wife and children and just had got t en up for suhhur. Suddenly he heard noise but did not underst and what it was. Then his brother Jihad called t o ask how they were doing because a missile had st ruck t he third floor of Talal’s house. The wit ness and his family were on t he second floor of t he house and had not realized t hat t he noise was from t heir own home being hit . Minutes later, Jihad’s house was hit twice. Talal Mahmoud Hamed Al Helo said t hat his house was shaking as if t here were an earthquake. T alal looked out of his window and saw t hat the house of Jihad, with whom he had been t alking just moment s before, had simply disappeared and been t ransformed int o rubble. 486 264. T alal confirmed t hat 11 people died as a result of t he attack, and t hat rescuers did not arrive on t he site unt il several hours lat er. T he building was complet ely dest royed and it was ext remely difficult t o pull out t he bodies. He added t hat t hey had not received any leaflet s, calls or phone messages warning t hem about the imminent att ack. T he only t hing t hat could have been a warning was t he missile that hit their roof, which he had not not iced unt il his brot her had called him, but t o the wit ness it was never clear whether the project ile was a so-called “roof-knock”. According t o Talal, even if it was a warning, it would have given t hem t oo lit t le t ime t o leave. 487 265. T alal did not believe that his brother’s house was host ing any milit ant s or milit ary t arget s because “t hese were houses t hat belonged t o civilians wit h children and women.”

T he wit ness had heard in the news t hat an Israeli soldier was kidnapped and assumed t hat t he at tacks on his neighbourhood were revenge at t acks because “every t ime one of t heirs dies or is kidnapped, we feel t he consequences of it in our homes.” 488 T alal t old t he commission t hat, had he known an attack was going t o t ak e place, he would have left t he house wit h his family: 266. “I am not a fighter, I am a civilian and I care about the well -being of my family.

Even if we had left there and then, the chances of our surviving the bombings would have been one per cent.”489

484

485 486 487 488 489

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Witness interviewed by B’Tselem; Paramedic and photojournalist killed during an attempt to evacuate wounded people from a-Shuja'iyeh; at: http://www.btselem.org/testimonies/20140722_gaza_paramedic_ahmad_sabah W126, PCHR submission W126 W126 W126 W126

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267. Ayyad family: On 20 July, at 6.30 a.m., 11 members of t he Ayyad family were killed by shells in Al Mansura St reet , Shuja’iya, as t hey left t heir h ome t o escape t he shelling. 490 In addit ion to those who normally resided in t he house, t he Ayyad family was host ing relatives who had sought shelter after being forced t o leave t heir homes. 491 On 20 July, t he area where t he house is sit uated was shelled from 1 a.m. onwards. T he wit nesses described t he family in a state of complete panic as the shelling intensified and t hey tried t o gat her everyone to escape.492 Neighbours, including t he Hajaj and Abed families, were also preparing t o leave. 493 At around 6.30 a.m., the family left t he house. T hey had gone about 70 met ers when a shell hit t he ent rance, followed by t wo shells t hat st ruck a group of people fleeing and killed 11 family members, including 4 children and 5 women, one of whom was pregnant 494 . Anot her 7 persons were injured including 3 children and one woman. 495 268. One of t he wit nesses, Khalil Ahmed Ayad, recount ed t hat he lost consciousness during t he at tack. When he woke up in t he st reet, he realized that his left arm was seriously injured. It was lat er amputated. 496 Everyone around him was running and screaming and the air was t hickened by a layer of dust . Two wit nesses said t hat no one could move from t hat spot for over an hour and ambulances were unable t o reach them due t o ongoing IDF aerial bombings. 497 269. A family member t old t he commission t hat t hey were hit by shells while fleeing.

T he wit ness’s wife, six months pregnant with twins, was killed in t he at t ack. When asked whet her t hey had been given a warning, eit her at home or when t hey were fleeing, t he wit ness said: 498

270. “I am talking only about where I used to live and I can guarantee there were no warnings. Let me tell you this. Had we known an attack was coming, we, the men, might have decided to stay back, but we would never have let the women and children be exposed to such horror… They had bombed the ambulances and we were trying to find cars to take the wounded to the hospital.”

271. T he phot os of t he damage and of remnant s of weapons received by t he commission 499 are consist ent wit h t hese t est imonies and indicat e t hat t he weapons used were most likely 155 mm high explosive artillery shells, which have fuses set t o air -burst and are designed t o cause as much damage as possible t o persons out in t he open. T he shells would have exploded just above t he ground result ing in t he high numbers of casualt ies reported and causing t he shrapnel pat t erns displayed on t he walls and vehicles, which were wit hout signs of significant blast damage or crat ering.

272. Al Jamal and Al Sheikh Khalil families: On 20 July, t wo families came under at t ack by Israeli forces in Balt aji St reet in t he Shuja’iya neighbourhood. Four family members of t he Al Jamal family were killed in the street by shells as t hey attempted t o flee Shuja’iya. T hree of those killed were children aged bet ween 10 and 12. Anot her 7 persons were injured including 3 children and 2 women. T he youngest child injured was a t wo year

490 491 492 493 494 495 496 497 498 499

W063 W194 W194, W063 W063, PCHR submission W063, PCHR submission A/HRC/28/80/Add.1, para.42; also PCHR submission, which reports 3 children killed.

W194 W063 and W194 W063 PCHR submission.

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old boy. 500 Six members from the Al Sheikh Khalil family were killed inside t heir home in Balt aji St reet , including 2 children and 4 women. Anot her t wo children were seriously injured. 501 It appears t hat one daught er died at t he hospit al as a result of t he at t ack. 502 273. On 16 July, t he IDF dist ribut ed leaflets in the Shuja’iya neighbourhood of Gaza City t elling resident s to leave the area. At around 7 a.m. on 20 July, 47 503 members of t he Al Jamal family fled t heir home in T awfiq St reet on foot to escape the heightened attacks in the area. Witnesses told the commission that they were heading towards Faray Street. As they walked, intense shelling and explosions were everywhere. Upon arrival at Faray Street, they found attacks there as well, so they continued walking trying to find a safe place. Some family members in the street were hit by mortars. Witnesses told the commission that no family members were affiliated with an armed group and that they were all civilians, most of them women and children.504 274. T he commission interviewed one member of t he Al Sheikh Khalil family who lost his wife and his 4 and 15-year-old daught ers. 505 T he Al Sheikh Khalil family building is locat ed in t he northern part of the Baltaji St reet. It is about 200 m 2 and has t hree floors; on t he first floor, t he wit ness’s fat her Mohamed Abd Al Rahman Al Sheikh Khalil lived t oget her with his son Abdel Rahman and his family. The wit ness lived on the second floor; no one lived on t he third floor. In total the building housed t hree families, including at least 16 people. 506 275. According t o a wit ness from the Al Sheikh Khalil family, who was inside his home during t he at tack, on 20 July at about 6 a.m., he heard many explosions outside in Al Baltaji St reet . When he realized t hat mort ars had st ruck t he roof, famil y members went t o t he st aircase for better protection. They attempted t o request help from the Red Cross but were not successful. 507 At least five or six mortars hit the building. 508 It appears that the first shell st ruck t he roof; a subsequent shell fell on t he northern part of the house and anot her on t he t errace on the first floor where people were st anding. The witness opened t he entrance door in order for t he family t o escape, but closed it again when he saw t hat t he ambulances out side t he building had been hit by mort ars as well. T he ambulances were dest royed. So t he family remained inside, scared t o leave t he house. 509 Aft er a few minut es a mort ar st ruck t he ent rance of t he house where t he family was hiding. A wit ness and family member described t o t he commission t hat t he house caught fire and some of t he family members ran out side. T hey looked for ambulances t hat could t ake t he injured t o t he hospit al but when t hey found an ambulance, it was overloaded wit h pat ient s. 510 According t o t he wit ness, t here was a 2-hour ceasefire, but t he family st ill had t o wait for 6 hours before ambulances arrived at t he scene. According t o t he same wit ness, four people died while await ing t he ambulances. 511

500 501 502 503 504 505 506 507 508 509 510 511

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W134, PCHR submission.

PCHR submission.

W204 PCHR reported 70 (PCHR submission) W134 and W135 W204 PCHR submission W204 W 204, PCHR submission W204.

W204 PCHR submission

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276. T he wit ness from t he Al Sheikh Khalil family claimed t hat t he buildi ng did not house any milit ant s, or weapons. 512 277. T he st rike and shrapnel patterns reviewed on t he basis of phot os of t he sit e and of remnant s of weapons submit ted to the commission513 are consistent with witness statements and indicat e t hat mort ars were used during t he at t ack.

278. At around 7 a.m. on the same day, according t o another wit ness, a milit ary medical aid ambulance was direct ly st ruck t wice while t he wit ness and his colleague at t empt ed t o provide first aid to victims in the area. There were four persons in t he vehicle, a driver, a phot ographer and t wo paramedics. T he passengers were all hit , including while t rying t o flee t he shelling. T wo of t hem were killed and t wo injured. 514 Humanitarian pause 279. On 20 July at 1.30 p.m., a two-hour humanitarian pause jointly agreed t o by t he IDF and Hamas ent ered into force, which allowed many inhabit ant s of Shuja’iya t o leave t he area and journalist s and ambulances t o enter. During t he humanit arian pause, members of P alest inian armed groups report edly emerged from buildings and were seen out in t he open. 515 280. At about 3.30 p.m., Salem Shamaly, a local resident who had joined a group of int ernat ional volunt eers while searching for his missing cousin, was killed. As t he volunt eers were crossing a small alley, they heard a shot . T he group immediat ely divided int o t wo and t ook cover at opposite ends of t he alley. Short ly aft erwards, Salem Shamaly moved out of t he area where he was t aking cover and was shot . As he lay injured on t he ground, he was shot t wice again and killed. T his incident was recorded on video 516 .

281. Alt hough most civilians left Shuja’iya on 20 July, some remained t rapped as sporadic fight ing cont inued over t he following days and weeks. For inst ance, a video published by t he IDF on 22 July shows how art illery was fired direct ly at t he first row of houses in Shuja’iya. In t he video, one officer st at es t hat t hese houses were being used by Hamas as observat ion out post s and t unnel exit point s. 517 Anot her video, which includes st at ements from the commander of the Golani Brigade, demonstrates how IDF tanks and/or art illery locat ed in Israel fired at buildings in Shuja’iya. 518 Bot h videos suggest t hat t he buildings near t he Green line were being t arget ed and heavily damaged. T his is support ed by sat ellite images, which illust rate t hat many buildings near t he Green L ine were indeed dest royed. 519

512 513

514

515 516 517

518

519

W204 PCHR submission, including building plans, photos of the site and of remnants of weapons used.

PCHR submission; Ahmad Sabah; Paramedic and photojournalist killed during an attempt to evacuate wounded people from Shuja'iya; at: http://www.btselem.org/testimonies/20140722_gaza_paramedic_ahmad_sabah and Akram Al Awoor cited in PHR Report (page 46) W042 PCHR submission; see also: A/HRC/28/80/Add.1, para. 43; IDF Spokesman official Video: Direct Artillery fire on Shuja’iya.; 27/07/2014. at: http://youtu.be/uAkDHIrFzHg Unofficial video produced by IDF artillery battalion 405; M inute 09:00-13:20. at: https://www.youtube.com/watch?v=R3AmCfkhX_Y Submission by UNITAR Operational Satellite Applications Programme (hereinafter: UNITARUNOSAT).

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Casualties and damage resulting from the operation in Shuja’iya 282. T he exact number of casualt ies cannot easily be det ermined because some persons died lat er from t heir injuries, and many bodies were only recovered and buried aft er t he IDF operat ion had finished. According t o t he UN P rot ect ion Clust er, 55 civilians, including 19 children and 14 women, were killed on 19 and 20 July in Shuja’iya as a result of t he IDF’s act ions520 .

283. Haaret z, referring t o IDF sources, indicat es t hat “On July 20, some 600 art illery shells were fired in less t han an hour at […] Shujaiyeh, in order to extract t roops under fire.

T he required safet y dist ances were considerably reduced, IDF figures show.” 521 284. An IDF soldier int erviewed by Breaking t he Silence described t he dest ruct ion in Shuja’iya as follows: “We knew that by the time we got there on Friday [Ju ly 18] there were not supposed to be any people in the area, since leaflets were dispersed and also because there wasn’t very much left of the place. The artillery corps and the air force really cleaned that place up. […] in previous times we had entered Gaza, a D9 (armored bulldozer) would go in and everyone drove in its trail. But in this operation they decided to do something different – just to enter as an offensive. A row of tanks go in, they spread out wide, get into position, identify ‘suspicious spots’, fire as required. The rules of engagement were very, very lax. […] There was no such thing as requesting authorization. Just fire.” 522 285. By t he end of t he operat ion, according t o UNIT AR-UNOSAT , Shuja’iya was a “razed area”, “likely levelled as a result of focused IDF demolit ions effort s. UNIT ARUNOSAT analysis of imagery of 25 July shows ongoing IDF combat operat ions as armoured groups ‘sequest ered’ a port ion of Shejaiya wit hin a perimet er. […] T he dest ruct ion visible in these areas [Shejaiya] represent s 100 % of buildings and t hus would have required relat ively significant effort s t o achieve.” 523 As a result , a t ot al of 670 buildings in Shuja’iya were complet ely dest royed, 608 were severely damaged, 576 moderat ely damaged, and t here were 273 visible impact craters524 , i.e. over 1800 buildings were affect ed.

Statements by the IDF and Palestinian Armed Groups regarding the Shuja’iya events 286. According t o press reports, Hamas accused t he IDF of taking revenge on the civilian populat ion for its military defeat in t he bat t leground, promising t o pursue t he responsible leaders by all legal means525 . Addit ionally, according t o press report s, t he Islamic Jihad

520 521

522

523

524

525

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UN Protection Cluster figures of 31 M ay 2015.

Haaretz. Amos Harel and Gili Cohen: Massive artillery shelling may have caused numerous civilian fatalities in Gaza; 15 August 2014; at: http://www.haaretz.com/news/diplomacy -defense/.premium1.610733# Breaking the Silence. This is how we fought in Gaza; testimony 43, p. 110; at: http://www.breakingthesilence.org.il/testimonies/database/?tzuk=1 UNITAR-UNOSAT: Impact of the 2014 Conflict in the Gaza Strip. UNOSAT Satellite Derived Geospatial Analysis; 2014; p. 9; at: https://unosat.web.cern.ch/unosat/unitar/publications/UNOSAT_GAZA_REPORT_OCT2014_WEB. pdf UNITAR-UNOSAT submission stressing that “Satellite imagery will only detect damage which is relatively catastrophic and affects the structural integrity of the building; damage such as bullet holes and shattered windows will not be detected.”

Al-Jazeera news channel’s website: Palestinian Authority condemns Shuja’iya massacre and Hamas says it’s a war crime, 20 July 2014. At http://www.aljazeera.net/news/arabic/2014/7/20/%D8%A7%D9%84%D8%B3%D9%84%D8%B7%

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movement issued a st at ement announcing t hat t he crimes of Shuja’iya and Al T uffah “revealed a level of brut ality and hatred, which enemy leaders are possessed wit h, who are t rying t o save their faces after the painful st rikes by t he resistance to the aggressor army”526 .

287. According t o t he same press report s, t he P FLP denounced “t he crimes of t he occupat ion.”527 The Al Qassam Brigades also claimed responsibilit y for t he killing of 14 IDF soldiers, some of t hem by opening t he doors of t he damaged AP C and “finishing t hem”. 528 289. Israel did not respond t o the commission’s request s for clarificat ions in relat ion t o t hese event s. Therefore, the commission has to rely on informat ion available in t he public domain. According t o press reports, the IDF itself acknowledged t hat civilian casualties had t aken place in Shuja’iya. Commenting on t hese event s, t he IDF Chief o f St aff st at ed t he following: “I regret the civilian casualties, and it hurts me to see children and women injured. […] We cannot agree that Hamas will place civilians in front of us, so we warn, warn and deter. We have a moral obligation to do everything possible to avoid civilian casualties as much as possible, and we have a moral obligation to protect our citizens.529 ” 290. In relat ion to target s in Shuja’iya, the IDF, by means of an infographic to explain the significant dest ruction caused largely by air st rikes530 , indicated t hat there were more t han t wo dozen “t errorists’’ houses’ in Shuja’iya’, including rocket launcher posit ions, t unnels, hideout s, combat posts, and firing positions for anti-tank missiles. 531 The IDF added t hat it had successfully t arget ed most of t he sit es highlight ed in t he infographic (which also included rocket launching posit ions and ot her t arget s). T he IDF also post ed a video, apparent ly showing t he dest ruction of one tunnel in Shuja’iya,532 claiming that it was one of “t he many t error sit es t hat had been ident ified and t arget ed by t he IDF in Shuja’iya”.

526

527 528

529

530 531

532

D8%A9-%D8%AA%D8%AF%D9%8A%D9%86%D9%85%D8%AC%D8%B2%D8%B1%D8%A9%D8%A7%D9%84%D8%B4%D8%AC%D8%A7%D8%B9%D9%8A%D8%A9%D9%88%D8%AD%D9%85%D8%A7%D8%B3%D8%AA%D8%B9%D8%AF%D9%87%D8%A7%D8%AC%D8%B1%D9%8A%D9%85%D8%A9-%D8%AD%D8%B1%D8%A8; http://www.aljazeera.net/news/arabic/2014/7/20/‫حرب‬- ‫جريمة‬- ‫تعدها‬- ‫وحماس‬- ‫الشج اعية‬- ‫مجزرة‬- ‫تدين‬- ‫السلطة‬ Al-Hayat newspaper: “Holocaust” in Shuja’iya and al-Toffah, 70 martyrs and 400 injured, 21 July 2014. At http://alhayat.com/Articles/3702019/%C3%92%E2%95%90%C3%90%C3%8C%E2%95%94--%C2%A6%C3%9D%E2%95%90%C3%9D%C3%9D%C3%83%C3%9F%C3%88%E2%95%A0%C3%83%E2%94%8C%C3%9D%E2%95%94%C2%B5%C3%83%C3%9F%E2%95%A9%C2%A6%C3%83%E2%95%90--70%C3%88%C3%95%C3%9D%C2%A4%C3%83%C2%AD-%C2%B5400%E2%95%A0%C3%90%C3%9D%E2%95%90 http://alhayat.com/Articles/3702019/-‫محرقة‬--‫في‬-‫حيي‬‫الشجاعية‬-‫والتفاح‬--70-ً‫شهيدا‬-‫و‬400-‫جريح‬ ibid Al-M odon: Gaza: M assacre in Shuja’iya and ambushes for the enemy, 20 July 2014. At http://www.almodon.com/arabworld/9cd6f58c-cf5b-481b-b1d3-9aa1fdae2224 Hamodia: The Chief of General Staff Summarizes Operation Thus Far, 21 July 2014. At http://hamodia.com/2014/07/21/chief-general-staff-summarizes-operation-thus-far M ore than 270 craters can be seen in the neighbourhood. See: UNITAR/UNOSAT submission.

IDF blog: A Hamas fortress in a residential neighbourhood. At http://www.idfblog.com/wp content/uploads/2014/08/Shujaiya-terror-sites.jpg Official IDF Spokesman Video: IDF Demolishes Tunnel Used to Attack Golani Vehicle; 26/07/2014; at: http://youtu.be/WqVxM Kto4Q8

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291. T he Commander of t he Golani Brigade praised t he art illery support he received in Shuja’iya, including from the 405th bat t alion, which was in charge of art illery fire. “T he art illery fired at very close range to us in order t o support the rescue operations. T he heavy shelling st opped t he Rocket P ropelled Grenade (RP G) fire,” he said. 533 292. Breaking t he Silence quot es an IDF soldier as describing t hat, when the news of t he bat t le in Shuja’iya broke, “One of the most senior officials in the IDF, […] just marked off houses on an aerial photo of Shuja’iya, to be t aken down. […] It’s not like in every building t hat was st ruck in Shuja’iya t here was some Hamas milit ant or somebody firin g at our forces”. 534 Summary legal analysis 293. T he sheer number of shells fired, as well as t he reported dropping of over 100 onet on bombs in a short period of time in a densely populated area, toget her wit h t he report ed use of an art illery barrage, raise quest ions as t o t he respect by t he IDF of t he rules of dist inct ion, precautions and proport ionalit y. T hese met hods and means employed by t he IDF could not , in such a small and densely populated area, be directed at a specific military t arget and could not adequat ely dist inguish bet ween civilians and civilian object s and milit ary objectives as required by IHL. The information available also indicates that during t he Shuja’iya operat ion on 19 and 20 July t he IDF violat ed t he prohibit ion of t reat ing several dist inct individual milit ary object ives in a densely populat ed area as one single milit ary objective. Therefore, there are strong indications that the IDF’s Shuja’iya operation on 19 and 20 July was conduct ed in violat ion of t he prohibit ion of indiscrimin at e at t acks and may amount t o a war crime. 535 294. T he Shuja’iya operation also raises serious concerns t hat t he IDF did not conform wit h it s obligat ion to take precautionary measures in attack. The choice of the met hods and means used by t he IDF cannot be reconciled wit h t he obligat ion t o t ake const ant care t o spare civilians and civilian objects or at the very least to minimize incidental loss of civilian life and damage t o civilian objects in a densely populat ed area. It is quest ionable whet her t he use of such immense firepower in such a short period would have allowed t he IDF: (1) t o respect its obligat ion to do everyt hing feasible t o verify t hat t he t arget s were milit ary object ives; and (2) to assess whet her the attack respected t he principle of proporti onality. In addit ion, t he lengt h of t he int ensive shelling (more t han 6 hours), t oget her wit h t he observat ion and int elligence means t hat t he IDF had at it s disposal in Gaza, would have allowed t hose responsible for t he at t ack t o receive opport une informat ion as t o t he dire impact of the shelling on civilians and civilian objects. The fact that the attack was allowed t o cont inue under t hese conditions evidences the commander’s failure t o comply wit h his

533

534

535

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Unofficial Video produced by IDF artillery battalion 405; M inute 09:00-13:20; at: https://www.youtube.com/watch?v=R3AmCfkhX_Y Breaking the Silence. This is how we fought in Gaza; testimony 110, p. 234; at: http://www.breakingthesilence.org.il/testimonies/database/?tzuk=1 The International Criminal Tribunal for the former Yugoslavia stated in the Galic Case that “indiscriminate attacks, that is to say attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians,” ICTY, Prosecutor v.Galic, case No. IT-98-29-T, Judgement, 5 December 2003, para. 57. The International Court of Justice in the Nuclear Weapons Case linked the prohibition of indiscriminate attacks to attacks against the civilian population, by stating that: “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” Para. 78. Article 8 of the Rome Statute of the International Criminal Court lists intentionally directing attacks against the civilian population or civilian objects as a war crime.

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obligat ion t o do everything feasible t o suspend an at tack if it becomes apparent that it does not conform t o t he principle of proport ionalit y.

295. While t he IDF appears t o have made subst ant ial effort s, in t he days prior t o t he operat ion, to warn the civilian population of its intention to intensify its at t acks, t his in no way alt ers the IDF’s other legal obligat ions (related to the conduct of host ilit ies), and does not modify t he prot ect ed st at us of civilians who remained in t he area.

296. T he intense shelling, combined wit h t he use of a large number of one-t on bombs, raise serious concerns about t he respect for the principle of proportionalit y. While shelling had st art ed in t he late evening of 19 July, it changed in nat ure and significant ly int ensified around 1.30 a.m., just aft er seven IDF soldiers had been killed when t he AP C t hey were riding in was dest royed. T he object ive of t he shelling and heavy bombardment appears mainly t o have been force prot ect ion. T he commission observes t hat t he issue of force prot ect ion of t he at t acking force as an element in assessing proport ionalit y is st ill unresolved536 . While it is certainly true t hat the protection of soldiers who are coming under at t ack represents a concret e and direct milit ary advant age, it is an “undisput ed fact t hat force protection is not an overriding concern t hat could set aside all ot her considerat ions when assessing t he proportionality of an attack”. 537 Although t he proport ionalit y analysis may properly t ake int o considerat ion force prot ect ion and t he neut ralizat ion of unit s of P alest inian armed groups, given the means and methods used by t he IDF in Shuja’iya, it is possible t o conclude t hat a reasonable commander would be aware of t he potential for such an int ense attack to result in the deat h of a high number of civilians. As such, it is highly likely t hat a reasonable commander would t herefore conclude t hat t he expect ed incident al loss t o civilian life and damage and dest ruct ion of civilian object s would be excessive in relat ion to t he ant icipat ed milit ary advant age of t his at t ack. In addit ion, even if, at t he moment of launching t he at t ack, t he init ial assessment by t he commander was t hat t he at t ack was proport ionat e, he had an obligat ion t o suspend t he at t ack as soon as it s disproport ionat e nat ure became apparent .

297. T he circumst ances of t he killing of Salem Shamaly indicat e t hat a civilian was t arget ed in violation of the principle of distinction. T he fact t hat he was shot t wice while lying injured on t he ground is indicat ive of an intent to kill a protected person (either owing t o his civilian status or t o t he fact t hat he was hors de combat ) and const it ut es an act of wilful killing.

298. T he dest ruction and damaging of over 1800 houses in Shuja’iya alone, as a result of bot h t arget ed and indirect at t acks, raise serious concerns about t he IDF’ s conduct . T his issue is addressed in det ail at V.A.2.d.

299. In spit e of the significant dest ruction and credible allegat ions of civilian casualt ies, t he commission is not aware of any on-going investigat ion carried out by t he IDF int o t he event s t hat t ook place in Shuja’iya on 19 t o 20 July.

536

537

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 2000, available at http://www.icty.org/sid/10052#IIIwork : “The questions which remain unresolved once one decides to apply the principle of proportionality include the following: [….] 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?”

Robin Geiss. The Principle of Proportionality: ‘Force Protection’ as a Military Advantage, Israel Law Review 45, p.74

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b.

Khuza’a 300. “What happened last summer is something that I will never forget, ever. We should exist in this world in a spirit of cooperation, of love for life, of brotherhood. The situation in which we lived was incredible. My mother was injured and was bleeding and I was unable to help her because I was injured myself. They targeted the clinic with three rockets from drones. The neighbourhood of the clinic was hit by at least 25 or 30 explosions.” Dr. Kamel Qdeih, medical doct or in Khuza’a538

301. “I think from here, they (the Israelis) can sleep quietly. But handling the tunnels will not be enough to bring calm. The Palestinians have to understa nd that this does not pay off.” Col. Ofer Winter, Commander of the Givati Brigade.539 302. Bet ween 21 July and 1 August 2014, t he IDF conduct ed a ground operat ion in and around Khuza’a, a village wit h about 11 000 inhabitants located on the south-eastern part of Gaza. T he ent ry of IDF ground t roops was preceded by a campaign of aerial at t acks t arget ing a large number of residential buildings. According t o the IDF, the objective of this operat ion was t o dest roy t he ext ensive t unnel infrast ruct ure t hat could be used by P alest inian armed groups t o ent er Israel. T he IDF also claims t o have found numerous weapons depot s in Khuza’a.

303. T he commission spoke with 13 eyewit nesses and ot hers who had wit nessed event s in Khuza’a. Likewise, t he commission considered confident ial and public report s and submissions relat ing t o t he ground operat ion in Khuza’a.

304. T he informat ion provided by eyewit ness account s, sat ellit e imagery and medical sources as well as t hird-party submissions, show high levels of dest ruction in Khuza’a as a result of t he considerable force and firepower used in a densely inhabit ed civilian area. The result ing hardship experienced by t he resident s was exacerbat ed by rest rict ion s on t he movement of civilians and medical personnel, as well as by t he harsh t reat ment of people t rapped in a cont ext of host ilit ies.

Warnings 305. T he ground operat ion was preceded by warnings t o t he civilian populat ion. T he majorit y of Khuza’a wit nesses who spoke to the commission st at ed t hat , during t he week prior t o the ground operation, they had been given warnings, most ly in t he form of fliers dropped from airplanes. One of t he wit nesses t old t he commission t hat t he family had received a recorded t elephone message. Several wit nesses said t hat they had chosen to st ay despit e t he warnings owing t o a variety of reasons. In some cases, local residents feared that t here were no safer sanct uaries as ot her part s of Gaza were also coming under at t ack. In ot her cases, wit nesses were afraid t o leave because t he at t acks were t aking place everywhere at once: 306. “Yes, we had received warnings through leaflets that were dropped from the air.

The warning was issued on that same morning, but the attacks also started on that same day so it was a difficult choice as we feared the idea of fleeing while the attacks were taking place.”540

538 539

540

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W268 Channel 10 News. Alon Ben Davids: With the Givaati fighters in Gaza: 26 August 2014; at: http://news.nana10.co.il/Article/?ArticleID=1071639; M inute 12:50 W259

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307. Wit nesses est imated t hat about 70 per cent 541 of t he populat ion responded t o t he warnings and left Khuza’a in t he days prior t o 20 July wit hout rest rict ions. T hose who chose t o leave t he village on or after 20 July were frequent ly prevent ed from doing so by IDF t roops in t he st reet s connect ing Khuza’a t o t he cent er of Khan Younis. 542 Ground operation 308. Information received by t he commission indicates that on 18 July, large numbers of IDF unit s comprising ground t roops, t anks and bulldozers were seen approaching and t aking posit ions along t he northern outskirts of Khuza’a. On 21 July 2014, the IDF attacked t he access rout es from Khuza’a to Khan Younis, causing craters and obst acles in t he roads t hat would limit Khuza’a’s inhabitants’ access to the out side world. 543 From t hat moment on, nobody was allowed t o move in or out of the village. It became a zone of active fighting and everyt hing in it was t urned int o a t arget . Eyewit nesses indicat ed t hat IDF bulldozers demolished t he first home in Khuza’a - reportedly belonging t o Hussein Abu Reida - in t he early hours of 20 July. 544 On 19, 20 and 21 July, Israeli aircraft gradually int ensified t heir presence over Khuza’a and carried out st rikes intermit t ent ly. During t hese days, t he IDF conduct ed manoeuvres apparently aimed at restricting movement in and out of Khuza’a545 : 309. “On 21 July, the day before the start of the massive military offensive, the IDF was preparing for the assault. They started creating barriers consisting of soldiers standing side-by-side to create a human wall. On that day, they would confront anyone trying to leave Khuza’a with gas and smoke bombs.”546 310. On 22 July, Khuza’a had been ent irely surrounded by t roops and isolat ed from surrounding communit ies and fragmented internally according t o neighbourhoods, many of which were rendered inaccessible. None of its residents could move in or out of the village, t he elect ricity was cut and reports indicate that many water t anks on the rooft ops of homes were at t acked and dest royed by t he IDF. Neighbourhoods wit h homes shelt ering hundreds of families came under intense fire from t he air and t he ground, in part icular bet ween 22 July and 25 July. 547 On 23 July, OCHA point ed t o “report s t hat Khuza’a, east of Khan Yunis, was exposed t o severe artillery fire overnight and t oday, as Israeli forces report edly ent ered several hundred met res into the village.” 548 According t o the UN Protection Cluster, 68 persons, including at least 14 civlians, were killed. 549 One resident who was t rapped in Khuza’a declared: “[…] the Israeli Air Force launched an enormous bombing campaign that was to be followed in hours by the ground offensive. The IDF set up a centre between Khuza’a and Israel, at about 2 or 3 km from the centre of Khuza’a. The IDF launched several strikes from that base which principally targeted civilian homes. The attacks killed about 50 civilians - within hours after its launch.” 550 311. T he following is a t estimony of another survivor of the operation in Khuza’a whose pregnant wife lost her unborn child as an indirect consequence of t he at t acks:

541 542 543 544 545 546 547 548 549 550

W268; Confidential submission 22 Confidential submission 22, PCHR submission W268 W270 W270 Confidential submission 22 Figures of 31 M ay 2015.

UN Protection Cluster figures of 31 M ay 2015 W270

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“The day of the attack, our house was targeted by several explo sions. I cannot tell you what weapons were used or what the source of the bombs was. If I had to guess I would think they were being launched from tanks. The attacks were so intense, the sound of the explosions was so loud that we could not really disting uish each attack and from where the bombs were launched. […] My family really suffered for these attacks. Some of my family suffered injuries. My wife suffered a lot and that resulted in her pregnancy being “poisoned.” We received some humanitarian assistance but it was more symbolic than anything. They distributed some medicine and food but in small amounts and infrequently. I did not receive any kind of assistance or compensation for the damage incurred by my house.”551 312. T he intensive attacks on Khuza’a cont inued t hroughout 23 and 24 July. Wit nesses provided consist ent account s of heavy fire power used by t he IDF and t he seemingly indiscriminate nature of their attacks, which resulted in significant dest ruction, including of resident ial buildings, as well as ot her clinics, roads, elect ricit y net works and public infrast ructure.552 It also appears that those civilians who did not respond t o earlier warnings t o abandon Khuza’a were prohibited from fleeing t he village once t he milit ary operat ions were underway. Moreover, medical st aff present in Khuza’a during t he ground operat ion st at ed t hat medical goods and personnel were blocked from entering t he village despit e t he urgency generat ed by t he growing number of casualt ies.

Destruction 313. According t o UNITAR-UNOSAT’s assessment, out of the 740 struct ures attacked in Khuza’a, a t otal of 453 buildings were complet ely dest royed, 181 buildings were severely damaged, 106 buildings were moderat ely damaged, and 163 impact craters were visible. 553 Also phot os in t he media show large-scale dest ruct ion 554 . Most of t hese building were levelled during t he IDF ground operat ion in Khuza’a bet ween 20 July and 1 August .

According t o wit nesses interviewed by t he commission and analysis of sat ellit e imagery, t he IDF used bulldozers t o demolish residential buildings in Khuza’a, in addit ion to artillery and airst rikes. T he ground operat ions in Khuza’a result ed in ext ensive damage t o public infrast ruct ure such as t he wat er t ower t hat serves t he civilian populat ion. 555 Alleged attacks on civilians trying to flee Khuza’a 314. T he commission received information regarding allegat ions of attacks on individuals by t he IDF as t hey were trying t o flee. Some reported being fired on even when t hey made clear t heir civilian st at us by holding a whit e flag. In addit ion t o t he incident s described below, small groups of people were reported to have been fired at while trying t o escape the fight ing. 556 315. T he commission learned t hat , on 23 July, civilians holding a whit e flag and at t empt ing t o leave Khuza’a were confront ed by a group of IDF soldiers who allegedly prohibit ed t hem from exit ing t he village, and report edly opened fire on t hem.

551 552 553

554

555 556

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W259 See also UNITAR-UNOSAT submission; UNITAR-UNOSAT submission. Note that “satellite imagery will only detect damage which is relatively catastrophic and affects the structural integrity of the building; damage such as bullet holes and shattered windows will not be detected.” http://www.telegraph.co.uk/news/worldnews/middleeast/gaza/11012640/Gaza-conflict-360-degreepanorama-of-flattened-town-of-Khuzaa-Gaza.html Confidential submission 22 Confidential submission 22

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316. “I don’t know precisely how many IDF tanks had been deployed to Khuza’a; however I heard there were around 150 tanks in and around Khuza’a, with the vast majority of them situated along the perimeter of the village. Since our requests to the Red Crescent and the International Red Cross did not succeed in providing us with support, we decided to make a brave attempt at leaving the city en masse, believing that they would not target the crowd if they understood it consisted of families and civilians. At about 10 a.m. on 23 July, almost all of Khuza’a’s remaining residents gathered in front of the clinic. We were all civilians and unarmed, many men were bare-chested. We carried white flags to show the IDF that we were civilians. At about 11.30, we started walking down Kha lid Ibn Walid Street en route out of Khuza’a.”

317. “We moved very slowly towards a line of IDF soldiers who were waiting for us and preparing for confrontation. When we approached the soldiers, those of us who were in the front lines started calling on the soldiers telling them, “We are civilians, please don’t shoot.” When we were at 5 or 10 meters from the soldiers, they confronted us and told us, “Return to your homes, we warned you to leave days ago. Why did you not leave?” They did not allow anyone to leave, not even the women and children standing in front of them who obviously did not represent any threat to them. When people refused to turn around, they started using sound bombs and tightening their line. After that, we started retreating and when we were about 100 or 200 meters away, they suddenly started firing at us. “557 318. According t o wit nesses and submissions received by t he commission, 11 people were seriously injured in t his incident while ot hers suffered light er injuries. 558 Human Right s Wat ch report ed similar allegat ions: One wit ness st at ed t hat he had fled his house t hat same morning, following warnings issued by t he IDF. As he walked wit h a group of 50 people t owards t he village of Abasan, the group came under small arms fire t hat killed his cousin and injured t he wit ness. 559 Eyewitnesses also told Human Right s Watch that , on 24 July, a group of 16 elderly men and adolescents carrying a whit e flag came under fire near t he T awhid mosque, in the north-western part of Khuza’a, at around 8 p.m. One man died on t he spot and anot her died of his injuries in t he following hours. 560 319. According t o reports by t he UN High Commissioner for Human Right s, on 24 July 2014, a 16-year-old girl wit h a disability fled her home in a wheelchair t oget her wit h her family. She was found dead on 1 August near t he ent rance to t he village. T he relat ives of t he girl reportedly left her behind after the girl’s brother – who was pushing her wheelchair - was injured as t hey came under fire by t he IDF. T he family made several effort s t o ret rieve t he girl in t he following days but were unable t o do so because of t he incessant at t acks. When t hey finally recovered t he girl’s body, her injuries suggest ed t hat she had died as a result of shelling. 561 House searches and human shields 320. T he IDF carried out search operat ions in a large number of houses in Khuza’a in order t o hunt for t unnels and weapons caches. On one occasion, a civilian was shot and killed. T he commission also received reports of the use of human shields in t he cont ext of t he search operat ions.

557

558 559

560 561

W268 on 20 February 2015 PCHR submission Human Rights Watch. Gaza: Israeli Soldiers Shoot and Kill Fleeing Civilians. Fighting in Khuza’a Shows Grave Dangers to Families Seeking Safety; 4 August 2014 ; at: http://www.hrw.org/news/2014/08/04/gaza-israeli-soldiers-shoot-and-kill-fleeing-civilians Ibid and confidential submission 22 A/HRC/28/80/Add.1, para 44

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321. On 23 July, Israeli soldiers separated a 17-year-old boy, Ahmed Abu Reda, from his family at a Khuza’a checkpoint as t he family was at t empt ing t o flee t he violence. T he soldiers kept t he boy for five days, during which t ime he was interrogated repeat edly by an Arabic speaking soldier about t he presence of armed groups and t he locat ion of t unnels.

Ahmed Abu Reda’s fat her described t o t he commission that his son was forced t o undertake “risky t asks such as opening doors, inspecting rooms, switching t he lights on and off to test whet her secret explosives were being connect ed t o t he light swit ches, open fridges and ot her devices t hat may have det onat ed explosions.” T he boy was also forced t o look for t unnels in basement s and t o sleep wit h the soldiers at t he checkpoint . 562 T he soldiers also t hreatened t o unleash their dog on him and forced him t o dig for t unnels. Ahmed was also compelled t o sleep for four nights bet ween rows of Israeli soldiers. On 10 Sept ember, t he MAG ordered a criminal invest igat ion int o t he incident 563 . In a newspaper art icle, an unnamed Israeli officer confirmed t hat the Israeli military had suspect ed Ahmed of being a milit ant and det ained him during t heir ground operat ion in Gaza. His fat her’s affiliat ion wit h Hamas was not ed, namely, he held a senior position wit h the Tourism Ministry of t he Gaza Government . 564 322. An eyewit ness, Raghad Qdeih, t old t he commission that, on 25 July around 1 p.m., Israeli forces occupied t he home of her uncle, Mohamed T awfiq Qdeih, in Khuza’a. At t he t ime of the attack, the witness, toget her with her uncle’s ext ended family and friends were t aking shelt er on the ground floor. Most of t he approximat ely 30 persons who had sought refuge in t hat house were women, children and elderly persons, including a man who was over 70 years old. 565 Bot h wit nesses int erviewed by t he commission in relat ion t o t his incident insisted t hat these people were all civilians, and that none of t hem were affiliat ed t o armed groups. 566 When t he soldiers ent ered t he house, Mohamed T awfiq Qdeih was holding a whit e flag wit h one hand and his ot her hand was raised t o show t he soldiers t hat he was unarmed. He reportedly spoke to the soldiers in Hebrew, telling t hem that they were all civilians. Mohamed Tawfiq Qdeih was approaching t he soldiers and, when he was about t wo met ers away, t he soldiers shot him t wice and killed him. T he women and children among t hem the witness's daught er - were t hen ordered to leave t he house, whereas all six men present were directed to stay in the building. 567 T he women and children went t o t he house of t he wit ness’s fat her, Ramadan Qdeih, next door.

323. T he fat her of Raghad, Ramadan Qdeih, described t o t he commission t hat he wit nessed t he forces arriving at the house of his brother, Mohamed Qdeih, at around 1 p.m., in t he process of which t hey demolished part s of it . About an hour lat er Israeli soldiers came t o his own house. They ordered t he people in the house t o ret urn t o t he place where t hey had previously sheltered, where the women stayed on the first floor. The owner of t he house was t aken to the second floor. From the window t here, Ramadan Qdeih saw t he men who had been held at his brot her's house wit h Israeli soldiers st anding behind t hem. T he wit ness said t hat the men were naked wit h black plast ic bags over t heir heads, handcuffed 562 563

564

565 566 567

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W026 M ilitary Advocate General. Operation Protective Edge: Update re Individual Incidents; 10 September 2014; at: http://www.law.idf.il/163-6859en/Patzar.aspx?pos=2&newsFromDate=01/09/2014&newsToDate=30/09/2014 The New York Times, 26 August 2014, "The Israeli military confirmed that troops had suspected Ahmed of being a militant and detained him during their ground operation in Gaza, noting his father’s affiliation with Hamas" and that the incident "had been sent to examination": http://www.nytimes.com/2014/08/25/world/middleeast/gaza-strip-palestinian-teenager-cites-ordealas-captive-of-israelis-soldiers.html?_r=0.

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and posit ioned in front of t he windows facing out wards. 568 T he soldiers t hen st art ed shoot ing from behind t he naked men, using t hem as human shields. T his went on from about 1.30 t o 6 pm. The men were lat er t old by t he soldiers t hat t hey were placed by t he window in order t o det er Hamas fighters from returning fire. T he wit ness also st at ed t hat when he asked t he Israeli soldiers about t he fate of his brother, Mohamed Tawfiq, they lied and said he had been injured and was receiving medical care in a different room. 569 Arrest and ill-treatment while in detention 324. According t o information reviewed by t he commission, the IDF conduct ed arrests of dozens of P alest inian men and children t hroughout t he durat ion of t he operat ion in Khuza’a. Some were int errogat ed in locat ions in Gaza, while ot hers were quest ioned in Israel. According t o wit nesses held by t he IDF, detainees were interrogated about t he names of P alest inian fight ers, and t he locat ion of t unnels and weapons depot s.

325. A resident of Khuza’a told the commission t hat on 23 July, at about 9.30 p.m., he heard a number of loud explosions as he was at t ending evening prayers at Al Farouq Mosque. T he wit ness rushed t o his home which is locat ed near Al Bassat een St reet and gat hered his family in t he middle of t he house where everyone lay down on t he floor.

At t acks were intense and t he wit ness had t he impression that his neighbourhood was being shelled bot h from the air and from the ground. This went on until 5 a.m. on 24 July. At that t ime t hey heard shoot ing out side t he door of his house. T en Israeli soldiers report edly forced t hemselves into the house. T he wit ness spoke t o t hem in Hebrew t o t ry and calm t hem down, but t he soldiers reportedly told him to "shut up." 570 According t o t he wit ness, t he soldiers handcuffed his son who has a ment al disability. The soldiers subsequent ly put a casserole on t he boy’s head and four of them st arted kicking and punching him. T hen one of t he soldiers began shoot ing bet ween t he legs of t he boy. Aft er a while, t hey t ook him away. When t he wit ness asked t he soldier t o leave his son alone, t he soldier apparent ly responded by saying, "shut up or we will t ake you." The witness said t hat t he soldiers t hen forced t he family t o remain behind. T he wit ness who speaks Hebrew and underst ood t he insult s t hat were being addressed t o his family, st at ed "It is horrible what t hey said….but t he children could not hear it ." On 24 July at about 3 p.m., t he men were all forced t o undress and were t aken out side. Two of his sons were t hen det ained by t he IDF. One was released six days lat er; the other was sent enced by an Israeli court to 45 mont hs in prison.

He is present ly held in a prison in Israel.

326. According t o a submission, a det ainee report ed t hat he and ot her det ainees were woken up in t he middle of the night and forced t o st and while being beat en. One det ainee report ed that IDF soldiers splashed wat er on him and on other det ainees’ faces and verbally abused t hem in Arabic. Two detainees asserted t hat at t he t ime of t heir arrest t hey were t hreat ened if t hey refused t o cooperat e. One man was report edly t old t hat he would be killed and anot her one t hat his parent s’ house would be t arget ed. T he report also document ed anot her case in which a det ainee who was held at a locat ion wit hin Israel was t old t hat his house would be dest royed if he failed t o cooperat e. 571 327. A resident from t he neighbourhood of Zanna in Khuza’a told t he commission that on 17 July at about 6 p.m., as he left his home t o get some wat er for his chickens, he was approached by a group of Israeli soldiers who confront ed him and accused him of digging t unnels for Hamas. T he soldiers shined a flashlight on his face and t ook him away. T he

568 569 570

571

W050; W051;W131 W050; W051;W131 W225 Confidential submission 22

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wit ness could see t hat there were some Palestinian “collaborat ors” wit h t he soldiers. T he wit ness heard t hem talk and t hought that t he “collaborat ors”, having realized t hat he was not a very important target, so informed t he soldiers and t hey st opped harassing him, but st ill decided t o det ain him. 572 T he wit ness st at ed t hat he was t hen t aken t o a house he recognized as belonging t o Mohamed Abdel Ghafour, which was full of soldiers wit h dogs.

It was Ramadan and aft er spending 48 hours blindfolded in t he house, the witness asked for wat er and food. He reportedly was t old t o shut up, and a soldier went t hrough his pocket s and t ook 8300 Shekels from him. When t he soldiers removed t he blindfold, one of t he soldiers showed him t he vast level of dest ruct ion visible from t he window and allegedly t old him "look at what we did." 573 328. T wo days lat er, the wit ness was t aken to a small room and interrogated about t unnels and weapons caches. T he witness claims to have been beat en during t h e int errogat ion. He was t hen given a nylon uniform to wear and t ransferred t o another location where he spent t wo weeks. He was report edly held in a room with no windows and int errogated repeat edly about t he same issues. At one point, the witness claims to have been forced to sit in a small seat , which he described as being approximately 20cm x 20cm. T he soldiers t hen placed a bag on his face, which carried a t errible stench. He st at ed t hat for t hree days, t he soldiers would t hrow cold wat er on his head whenever he t ried t o sleep. 574 T he wit ness fell unconscious at some point and woke up several hours later, finding himself in a bigger cell wit h about t en other people. Finally, the wit ness was t ransferred t o a court in Azabal Ashel, where he was sent enced t o 28 days in prison. Having served his sent ence, he was t aken t o t he Erez crossing. When he asked about t he 8500 shekels that had been confiscat ed earlier, he was t old: “Ask Ismail Haniya.”575 Attack against a medical clinic and preventing ambulances from accessing Khuza’a 329. According t o wit nesses, Khuza’a’s only clinic, Dr. Kamel Qdeih’s Clinic, was st ruck by repeat ed Israeli air strikes on 23 and 24 July. 576 One of t he doct ors running t he clinic recount ed t he following:

“The clinic and its surroundings were hit by a number of rockets. About thirty people in total were killed, and several more injured in these attacks. They were mostly children and women. None of them were combatants. Among them was my brother who was killed before my own eyes. He was hit during that attack and collapsed. During that same night, when I was talking to the media, I told them that although this soldier killed my brother, the most precious person for me, I would still treat him (the soldier) just as I would anybody else because he is a human being and no human being deserves to be killed. I felt so much pain.

It was the most painful experience of my life, being a doctor and not being able to save my brother’s life. During that same night, I believe I saved the lives of numerous others.”

“They targeted the clinic with three rockets from drones. There were at least 25 or 30 explosions in the neighbourhood. The attacks on the clinic continued also on the 24th. Our clinic was deprived of the most basic provisions to treat patients. […] and in all this there was no communication or warnings. We were just attacked.” 577 330. T he commission similarly underst ands that employees from t he Minist ry of Healt h and t he P alest inian Red Crescent were prevent ed by t he IDF from ent ering Khuza’a.

572 573

574 575 576 577

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331. “On 22 July, attacks intensified. It was probably the most violent day for Khuza’a. I call it the black day. The attacks were carried out for the most part from the air, by F16s and drones. Tanks in and around Khuza’a were also firing intensely. The clinic was overflowing with more patients than it could handle. I spent most of that night cal ling colleagues from the Red Cross and other international organisations to request for help.

The Red Cross informed me that they were told by the Israelis that nobody would be authorized into Khuza’a because it was a closed military zone. I immediately […] reminded them that they are a humanitarian organization that should be working to help the people who are most in need. […] On the following morning, I called our colleagues from the Ministry of Health and the Palestinian Red Crescent. They too were unab le to enter. Our brothers from the Red Crescent however made a genuine attempt to enter into Khuza’a and 578 were stopped when their ambulance came under attack.”

Delays in Evacuation of Injured Civilians and Failure to Protect and Respect Medical Personnel “I don't want to die. Don’t leave me. 7-year old Anas “ Bader” Qdeih 579 332. T he commission heard t est imony and reviewed submissions describing how wounded, sick and t rapped civilians were deprived of medical care during t he IDF incursion int o Khuza’a. According to t hose report s, t he IDF repeat edly refused access t o medical t eams. Palestinian Red Crescent Society (PRCS) ambulances spent a considerable amount of t ime on the outskirts of Khuza’a waiting for a green light to ent er t he village t o evacuat e t he injured. 580

578 579

580 581



T he commission understands t hat t he P alest inian Red Crescent Societ y (P RCS) obt ained access t o ent er Khuza’a only on 24 and 28 July, and t hat , on bot h days, t he t otal time the medical crews were accorded t o attend to the injured and recover dead bodies was bet ween 40 and 90 minut es (aft er moving for several hours t hrough dest royed st reets and neighbourhoods, negotiating t heir way around t anks and soldiers and being subject ed t o searches). T he delays meant t hat t he ambulances could not t ransfer the injured t o hospital quickly or go back t o pick up more casualt ies.



On 24 July, for example, according t o wit nesses, P RCS personnel were forced t o carry t he injured on t heir shoulders because t he road was blocked, and t he IDF refused t o clear it. The IDF had opened t he road on the way in but blocked it again while t he ambulances were working inside Khuza’a. Because of delays of more t han t hree hours, one man who had a gunshot injury in his t high had t o have his leg amput at ed when he got t o hospit al. 581



On 24 July, according t o wit nesses, the PRCS ambulance found a 7-year-old boy, Anas “ Bader” Qdeih, who was crit ically injured. He was t aken t o an IDF checkpoint in order to be t ransferred to the closest ambulance. The ambulance was kept wait ing for at least 20 minut es in spit e of t he evident seriousness of t he

W268; Confidential submission 22 W268; see also: Physicians for Human Rights. Gaza 2014. Findings of an independent medical factfinding mission; At https://gazahealthattack.files.wordpress.com/2015/01/gazareport_eng.pdf, p. 88; See also video at http://www.aljazeera.com/programmes/aljazeeraworld/2014/08/khuzaa-attackaftermath-201481165544556845.html; min 13-26 (unverified) Confidential submission 22; confidential submission 33.

Submission 22.2 See also W083.

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vict im’s injuries and his being a child. T he boy died before he could be t ransferred t o t he ambulances t hat were wait ing at t he out skirt s of t he village 582 . 

On 24 July, when a P CRS medical t eam entered Khuza’a, a person who asked for t heir help was seriously injured by gunfire direct ly in front of t hem, according t o wit nesses. 583

333. The case of Ghalia Abu Reda: A wit ness t old t he commission t hat he and his family decided t o leave t heir home in Khuza’a in accordance wit h t he warnings issued by t he IDF prior to the launch of the ground operation. 584 As at t acks were int ensifying, t hey fled Khuza’a in a st at e of complet e panic, leaving behind one of t he family members, Ghalia Abu Reda, a woman aged about 70, in a wheelchair. Ghalia Abu Reda’s cousin st ayed behind, in order t o look after her for as long as possible, but event ually t he cousin t oo was compelled t o leave. When the wit ness returned t o the family home a few days later, he found Ghalia Abu Reda’s dead body. She had a bullet mark in her head and blood on her face. T he doctor who later examined t he body t old the witness that she had been shot from close range, from a dist ance of about t wo met res. 585 Anot her member of t he Abu Reda family confirmed t he above allegat ions t o t he commission. T hat wit ness st at ed t hat t he house was very close t o t he Green Line and t hat , some days or weeks lat er, an Israeli soldier post ed on t wit t er a pict ure of anot her IDF soldier offering wat er t o Ghalia Abu Reda: “The soldiers did this to pretend that they were human. They did not know that Gaza is small, and that the picture would be recognized by the family. When the family returned to Khuza’a they found Ghalia dead!” 586 IDF and MAG statements 334. T he IDF has not officially declared how many t unnels it found and dest royed in Khuza’a, nor has it st ated how many weapons caches it discovered. Colonel Ofer Wint er Commander of the Givati Brigade and t he person in charge of t he operat ion in Khuza’a, was report ed t o have said: “There is no house that is not harbouring evil. It is amazing – every house. All these houses are full of explosives. This house here is a bunker and a Hamas command centre. (…) You see, I lost my way; the last time I was here there were still buildings here.”587 335. In relat ion to the events described above, t he MAG ordered criminal invest igat ions int o t he 25 July killing of Mohamed T awfiq Qdeih and t wo unspecified cases of abuse of Khuza’a resident s on 23 July 2014. T he MAG also ordered t he opening of four criminal invest igat ions into alleged looting of houses, some of which t ook place in Khuza’a. On 18 March 2015, the MAG closed t he cases of looting, as the victims declined t o t est ify before

582

583 584 585 586 587

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W268 on 20 February 2015; see also: Physicians for Human Rights. Gaza 2014. Findings of an independent medical fact-finding mission. At https://gazahealthattack.files.wordpress.com/2015/01/gazareport_eng.pdf, p. 88; See also video at http://www.aljazeera.com/programmes/aljazeeraworld/2014/08/khuzaa-attack-aftermath201481165544556845.html ; min 13-26 (unverified) Submission 22.2 See also W083.

W251 W251 W252 Channel 10 News. Alon Ben David: With the Givati fighters in Gaza; 26/07/2014; at: http://news.nana10.co.il/Article/?ArticleID=1071639; minute 6:39

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t he IDF. 588 The commission sought but could not verify report s by t he Israeli aut horit ies indicat ing t hat Palestinian armed groups or local authorit ies had forced individuals t o st ay in t he neighbourhood.

Legal analysis 336. T he commission select ed a number of feat ures of t he 20 July t o 1 August ground operat ion in Khuza’a and analyzed t hem against int ernat ional law: 337. T he reported intensity of the shelling and air st rikes in Khuza’a bet ween 22 and 24 July, which result ed in t he dest ruct ion of resident ial buildings, medical clinics, roads, elect ricity net works and public infrast ruct ure; t he bulldozing of buildings t hroughout t he ground operat ion; and t he dest ruction of wat er t anks on roofs of buildings; raise concerns t hat the IDF shelling and airst rikes were not exclusively direct ed at milit ary object ives.

While t he commission is not in a position to verify the extent of the use by armed groups of buildings in Khuza’a for military purposes, it appears highly unlikely that the 740 buildings eit her dest royed or damaged all made “an effective contribut ion to military action” 589 . T he complet e razing of some areas of Khuza’a, as shown in media images, 590 as well as ot her available information, indicat e t hat t he IDF may have t reat ed several dist inct individual milit ary objectives in a densely populated area as one single military objective. T his would be in violat ion of the prohibition of indiscriminate attacks, found in cust omary international law and reflect ed in article 51(5) of Addit ional P rot ocol I. 591 T herefore t here are st rong indicat ions t hat element s of t he IDF operat ion in Khuza’a may qualify as direct at t acks against civilians or civilian object s and may t hus amount t o a war crime. 592 338. T he allegat ions t hat civilians t rying t o flee Khuza’a on 21 July and 23 July 2014 were prevent ed from doing so raises significant quest ions as t o the IDF’s st rict compliance wit h t he general obligation to take all feasible precaut ions to avoid or at least t o minimize incident al loss of civilian life. Indeed, allowing civilians to flee an area t hat is about t o be subject ed t o heavy shelling and air st rikes implicitly accords wit h the general obligat ion of part ies t o a conflict t o t ake const ant care t o spare t he civilian populat ion. 593 T he commission recognizes that the obligation is t o t ake “feasible precaut ions”, which means t hat not only humanitarian, but also military considerations can be t aken into account when deciding on t he precaut ions t o be observed. However, in t he absence of any informat ion from Israel on the issue, t he commission does not see any military consideration t hat could 588

589 590

591

592

593

Decisions of the IDF M ilitary Advocate General regarding Exceptional Incidents that Occurred during Operation 'Protective Edge' – Update No. 2; 7 December 2014; At: http://www.law.idf.il/1636958-en/Patzar.aspx AP I article 52, para.2 The Telegraph, Gaza Conflict: 360-degree panorama of flattened town of Khuza’a, Gaza, 5 August 2014. http://www.telegraph.co.uk/news/worldnews/middleeast/gaza/11012640/Gaza-conflict-360degree-panorama-of-flattened-town-of-Khuzaa-Gaza.html International Committee of the Red Cross, Customary International Humanitarian Law Database, Rule 13 The International Criminal Tribunal for the former Yugoslavia stated in the Galic Case that “indiscriminate attacks, that is to say attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians,” ICTY, Prosecutor v.

Galic, case No. IT-98-29-T, Judgement, 5 December 2003, para. 57. The International Court of Justice in the Nuclear Weapons Case linked the prohibition of indiscriminate attacks to attacks against the civilian population, by stating that: “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” Para. 78. Article 8 of the Rome Statute of the International Criminal Court lists intentionally directing attacks against the civilian population or civilian objects as a war crime.

AP I article 57, para 1

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have just ified preventing civilians from fleeing. The IDF had already sacrificed any element of surprise by issuing a warning several days earlier, meaning t hat Palestinian armed groups were aware of t he impending at t ack.

339. While preventing members of armed groups from fleeing by mingling wit h civilians is hypot hetically a valid military consideration [although such an argument has not been put forward], it does not, in the circumstances at hand, outweigh t he humanitarian con sideration of allowing a subst ant ial group of civilians to evacuat e an area t hat has or will short ly be subject ed t o heavy bombardment. When refusing t o allow civilians t o flee Khuza’a on 21 and 23 July, t he IDF had full knowledge of t heir presence and t herefore should have foreseen t hat an at t ack against t he t own using int ense shelling and aerial bombardment would very likely be indiscriminate or disproportional. This also raises concern that not all feasible precaut ions t o minimize danger t o civilians wer e t aken by t he IDF in it s at t ack against t he t own of Khuza’a.

340. Art icle 23 of the 1907 Hague Regulat ions 594 proscribes t he dest ruct ion of propert y unless such dest ruct ion is required by imperat ive military necessity. A similar provision in Geneva Convent ion IV prohibit s an occupying power from dest roying privat e or public propert y. 595 The extensive devast ation, carried out by t he IDF in Khuza’a, in part icular t he razing of ent ire areas of the town by artillery fire, air st rikes and bulldozers, indicat es t ha t t he IDF carried out dest ructions t hat were not required by milit ary necessity. Article 147 of t he Geneva Convention IV qualifies t he extensive dest ruct ion of property “not just ified by milit ary necessit y and carried out unlawfully and want only” as a grav e breach of t he Geneva Convent ions. T he massive dest ruct ion execut ed by t he IDF in Khuza’a may t herefore amount t o a war crime, if all of t hese element s are met .

341. T he ext ent of t he dest ruct ion combined wit h t he st at ement s made during t he operat ion by t he commander of the Brigade responsible for t he Khuza’a operat ion t o t he effect that “Palestinians have to underst and t hat this does not pay off ,” are indicat ive of a punit ive int ent in t he act ion of t he IDF in Khuza’a and may const it ut e collect ive punishment . Article 33 of Geneva Convention IV establishes that “collective penalt ies and likewise all measures of int imidat ion or of t errorism are prohibit ed.”

342. Information received by t he commission suggest s t hat in several cases P alest inians who had been detained, most ly in t heir homes in Khuza’a, had been insult ed, beat en, t hreat ened t o be killed and ot herwise ill-t reat ed by IDF soldiers. In some cases t he t reat ment described by some of t he witnesses could amount to torture. Article 27 of Geneva Convent ion IV provides t hat “protected persons are entitled in all circumstances, to respect for t heir persons [and] their honour” and “shall at all t imes be humanely t reat ed, and shall be prot ected especially against all act s of violence or t hreat s t hereof and against insult s” and art icle 29 provides t hat irrespective of the individual responsibility of t he soldiers, t he part y in whose hands t he protected person finds himself, in t his case Israel, is responsible for t he treatment afforded. 596 In addit ion, t he behaviour of IDF soldiers, as described by wit nesses, if verified, amounts t o a violation of article 10 of the Internat ional Covenant on Civil and P olit ical Right s. In a number of t hese cases t he t reat ment afforded t o t hose

594

595 596

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Hague Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Convention IV of 1907 Article 53, Geneva Convention IV of 1949 The term “protected persons” is defined in article 4 of the Geneva Convention IV as “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.” The behaviour described by witnesses also amounts to a violation of customary law as reflected in Common Article 3 to the four Geneva Conventions.

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det ained may qualify as inhuman or degrading t reat ment in violat ion of art icle 7 of t he Int ernat ional Covenant on Civil and P olit ical Right s, and art icle 16 of t he Convent ion against T orture and may even amount to acts of torture as defined in art icle 1 of t he same Convent ion. Such act s are described as war crimes and list ed as a grave breach of t he Geneva Convent ions. 597 343. In addit ion t o t he t wo incident s in which people were allegedly used as human shields in Khuza’a, t he commission examined a similar allegat ion in the case of a 60-yearold woman in Wadi Al Salqa, a village sout h east of Deir Al Balah, who was det ained on 24 July by IDF soldiers.

344. “The soldiers interrogated me repeatedly and detained me in the house for three days, guarding me with a gun. They did not let me use the restroom and they didn’t give me food or water. They took off my veil. I told them I was a widow from a long time and they told me that no one loved me, and that no one would ask about me if I disappeare d. I was scared. I was told that I would remain with the soldiers, and I protested, telling them I was a woman and they were all men.”598 345. T he victim, a widow who lived alone on a small farm, told t he commission t hat she was det ained by four armed IDF soldiers close t o her home. Aft er confiscat ing her keys, mobile phone and some money, the soldiers ordered her t o remove her veil and go inside t he house. T here the victim was blindfolded and handcuffed, and, some hours lat er, t aken east wards t o t he house of her cousin, where she was int errogat ed about t unnels and members of t he “resistance”. The victim denied t hat she or her family had t ies to any armed groups. When t he soldiers told her that she would be st aying wit h t hem for eight days, t he vict im responded t hat this was highly inappropriat e as she is a woman and t hey are men.

T he soldiers mocked her saying t hat nobody would miss her anyway. Then they took her to an adjacent shack and at gunpoint forced her t o ent er an underground area while about 12 soldiers wait ed for her above. Aft er 10 minut es, t he soldiers ordered her back up and ent ered t he underground area t hemselves. The victim remained capt ive in t he home of her relat ive until 27 July, largely without access to wat er, food and a bat hroom. On 27 July, at around 1.45pm, t he soldiers ret urned her belongings and left t he house. 599 346. Based on t he informat ion available t o t he commission, t he manner in which t he Israeli soldiers forced Palestinian civilians t o st and in windows, ent er houses/underground areas and/or perform dangerous t asks of a milit ary nat ure, const it ut es a violat ion of t he prohibit ion against the use of human shields contained in article 28 of Geneva Convent ion IV, and may amount t o a war crime.600 These incidents also raise concerns that in two of the cases, t he IDF may have violated t he obligation to hold persons deprived of their libert y in premises t hat are removed from the combat zone, 601 when det aining t hem for several days.

T he t asks the victims were ordered t o perform by t he soldiers jeopardized t heir lives and healt h. That conduct , toget her with the physical and/or psychological violence t o which t he vict ims were subject ed by t he soldiers, constitutes ill-treatment and may amount to t ort ure.

602 In addit ion, should allegat ions t hat vict ims were coerced t o provide informat ion concerning armed groups and t he whereabout s of relat ives and t unnels be confirmed, t his 597 598 599 600

601 602

Article 8 Rome Statute of the International Criminal Court; article 147 Geneva Convention IV. W232.

W232.

Geneva Convention IV article 28, Article 51(7) Additional Protocol I Article 8 Rome Statute of the ICC. See also https://www.icrc.org/customary -ihl/eng/docs/v2_rul_rule97 ICRC, Database customary international humanitarian law, rule 121.

CAT, article 16 on degrading treatment. GC I, Art. 50; GC II, Art. 51; GC III, Art. 130; GC IV, Art. 147; ICC Statute, Art. 8(2)(a)(i); (ii); (iii); (viii); Art. 8(2)(b)(i); (iv); (x); (xxv) AP I, Art. 75, AP I, Arts.75(2)(a); (b)

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would amount t o a violation of article 31 of the Geneva Convent ion IV, which st at es t hat “no physical or moral coercion shall be exercised against protected persons, in particular t o obt ain informat ion from t hem or from t hird part ies.”

347. Wit h regards t o t he t reat ment of t he woman who was det ained in Wadi Al Salqa, int ernational humanitarian law provides t hat, "women shall be t reated wit h all consideration due t o t heir sex". 603 T he det ainee’s cult ural background should be t aken int o account when ensuring t he respect for physical and moral integrity. 604 The IDF would t herefore be under an obligat ion t o hold t he widow in Deir Al Balah under the immediate supervision of female guards. 605 348. Other incidents and alleged patterns of behavior in Khuza’a raise a number of concerns under international law that will be dealt with and analyzed in detail in subsequent sections of this report. These incidents include: the incidents in which civilians were allegedly shot at by IDF soldiers; attacks against ambulances; and the failure to provide medical assistance to wounded persons. c.

Rafah, 1 August 2014 349. “Hundreds of people had returned to their homes because of the declaration of ceasefire. They have been unexpectedly confronted with a barrage of missiles so most of them started fleeing from the eastern parts. They were fleeing in the hundreds, on motorcycles, cars or simply on foot. Entire families, including elderly, women and children were being attacked by tanks. The attacks were indiscriminate. A lot of these attacks happened in Bildesi Street, where many of the people were fleeing. There was an explosion about every 10 seconds. During these hours, we came across hundreds of corpses that had been torn into pieces.”606 Doct or, Al Najjar Hospit al 350. In response t o the killing of two IDF soldiers and t he capt ure of Lt . Hadar Goldin, t he Reconnaissance Unit of the Givati Brigade launched a major military operat ion on t he t own of Rafah in t he morning of 1 August , or “Black Friday” as it was dubbed in Gaza.

When t he operat ion st art ed, Israeli forces act ed on t he basis of t he assumpt ion t hat Lt .

Goldin might st ill be alive. He was proclaimed dead several hours lat er, following t he discovery of his blood-st ained effect s. T here are conflict ing report s about whet her t he capt ure of t he Lt . Goldin occurred before or aft er a ceasefire t hat was due t o come int o effect . According t o official Israeli sources, host ilit ies resumed “following a ceasefire violat ion by Hamas and t he at t empt ed kidnapping of an IDF officer”. 607 351. T he commission spoke with 22 witnesses in relat ion t o t h ese event s, among t hem vict ims, medical personnel and journalists. It also st udied submissions, video and sat ellit e imagery and public report s from relevant st akeholders.

352. During t he operation, t he IDF closed off areas of Rafah t o block movement in an d out , presumably t o prevent t he capt ors from leaving t he area wit h t he capt ive soldier.

Resident s ret urning home t hat morning – following t he announcement of a ceasefire – found t hemselves t rapped wit h no access to safer sanctuaries, as Rafah was basicall y t urned

603 604 605

606 607

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Art. 27, para 2, Geneva Convention IV. Elements of Crimes for the International Criminal Court, Article 8 (2) (b) (xxi), footnote 49.

Article 76 Geneva Convention IV See also AP I Art. 75(5). CEDAW, General Recommendations nr.

30. http://www.ohchr.org/Documents/HRBodies/CEDAW/GComments/CEDAW.C.CG.30.pdf W219 Israel's Investigation of Alleged Violations of the Law of Armed Conflict , p. 30; at: http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx

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int o a closed military zone. According t o m edia account s, t he IDF fired over 1000 shells against Rafah wit hin three hours608 and dropped at least 40 bombs. T anks and bulldozers demolished dozens of homes. 609 Inhabitants came under intense attacks in their homes and in t he st reets. Witnesses reported t o the commission t hat dozens of homes were dest royed

by IDF bulldozers. Ambulances and privat e vehicles trying t o evacuat e civilians from t he fight ing were also hit . As a result of t he operat ion, virt ually every person or building in Rafah became a pot ent ial milit ary t arget . 610 Families gave account s of dividing t heir children int o separate groups before fleeing their homes, in t he hope t hat only one group might be fired on and t he ot hers would survive.

353. “Before I left, I called my neighbour and agreed with her to divide into two groups, so that, if one group were targeted, the others would survive. I left with my two younger daughters, whereas my neighbour left with her daughter and my eldest daughter Asil. We reached a place called Mashrough Amer in Salahaddin Street and found a lot of vehicles that had been recently destroyed as they were still emitting fumes. [… ]We later learned from the news that Shawka, our neighbourhood, had been targeted by 600 missiles in the span of one hour. The area had been totally destroyed and, as far as I can remember, the missiles I witnessed appeared to have been fired from the ground, probably a tank. I understand that Rafah city was targeted mainly from the air. Al Sh awka, however, is on the margins of Rafah and very close to the border. There, all the attacks were launched by tanks. When I returned home, I found my house partially destroyed by three missiles. The house was empty and nobody had been hurt.” Saleh Hussein Abu Mohsen from Rafah 611 354. A fat her described an incident in which t hree persons were killed and six injured, including himself, while trying to flee to safety. 612 Beginning on from 17 July, t he family had moved from one refuge t o another to avoid t he shelling. When they arrived at Mashrou’ Amer on 1 August around 11 a.m., tanks in front of the Sa’ad Sayel barracks fired at t hem.

When t hey ran away in t wo groups, t he eldest daught er was killed. 613 T he commission underst ands t hat t he fiercest at t acks occurred during t he first four hours following t he rumored capt ure of Lt. Goldin. The bombardment was reported t o have been most int ense in t he east ern neighbourhoods of Rafah, such as Mashru’ Amer, T annur, Hay al Jneina, Uruba St reet , Al Shawka, Zallata, the Airport neighbourhood and Salahaddin st reet , with up t o 95 per cent of the victims coming from these neighbourhoods. 614 Sat ellite imagery shared wit h t he commission corroborates that the dest ruct ion was concent rat ed in t hese areas. 615 355. Doct ors working at the Abu Yousef Al Najjar Hospital in Rafah told t he commission t hat , in the last days of July, many civilians had rushed t o the hospit al not t o seek medical care but “ because they felt that the hospital was the safest place for their families and

608

609

610

611 612 613 614 615

Haaretz. Amos Harel and Gili Cohen: Massive artillery shelling may have caused numerous civilian fatalities in Gaza. 15 August 2014; at: http://www.haaretz.com/news/diplomacy -defense/.premium-1.610733#!

The Independent. Ahron Bregman: You might not have heard of the ‘Hannibal Protocol’, but it's behind one of Israel's worst atrocities yet; 20 August 2014. At: http://www.independent.co.uk/voices/comment/you-might-not-have-heard-of-the-hannibal-protocolbut-its-behind-one-of-israels-worst-atrocities-yet-9678780.html See also: Haaretz. Gili Cohen: Dozens of innocents killed in IDF's 'Hannibal' protocol. 4 August 2014; at: http://www.haaretz.com/news/diplomacy -defense/.premium-1.608715 W171 Confidential submission 22 Confidential submission 22 W221, para 4 and W220, para 6 See UNITAR-UNOSAT submission and confidential submission 22.3

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children. 616 On 1 August , as t he security det eriorated, patients from Al Najjar hospital were t ransferred t o t he Kuwait i hospital.617 According t o eyewitnesses, two missiles struck the Al Najjar hospital, which caused dest ruct ion to some of the infrastructure such as t he windows, doors and t he air conditioning syst em. Ambulances were also hit. For instance, at around 3 p.m., an ambulance transport ing injured civilians in t he Msabbeh neighbourhood was hit .

T he vehicle caught fire and t hree crew members and 5 ot her people were killed. T he commission spoke with two ambulance workers from Al Najjar hospital who wit nessed part of t he incident. They said t hat , earlier on t hat day, t he Al Bir T aka Mosque in nort hern Rafah had been hit and t hey were called t o rescue t he wounded. T hree ambulances were dispat ched, one of them driven by t heir colleague At ef Salah Ibrahim Al Zamali, who t ook a short -cut in order t o save t ime. When t he ot her t wo ambulances arrived at t he scene a lit t le while later, they found Atef’s ambulance enveloped in flames, about 250 meters away from t he mosque. They could not approach t he vehicle due t o t he heat . While t hey were t here, anot her st rike on t he burning ambulance caused a second explosion. T he eyewit nesses t hought t hat t his second explosion was not caused by an airst rike, but by a mort ar, as fragment s of shrapnel exploded around t he ambulance area. 618 T he int ense bombardment cont inued. 619 Aft er ext inguishing t he fire, t he Civil Defence managed t o ext ract t he burned bodies from t he vehicle and found inside, in addit ion t o t he t hree ambulance crew members, t he bodies of a man, a woman and t hree children . T hey discovered t hat t he man was an elderly pat ient . T he woman was his daught er who had asked t o accompany him in order for her children t o be evacuat ed t o a safer place. 620 356. Dozens of shells st ruck the premises of the hospital, wounding a number of civilians and causing marginal damage t o its infrastruct ure. T he hospit al was event ually evacuat ed and no ot her casualties were reported. T he doct ors also said t he hospital received more than a t housand casualt ies on t he first day of t he operat ion alone. 621 According t o t he UN P rotection Cluster, 100 fat alit ies were recorded in Rafah on 1 August 2014, including 75 civilians (24 children and 18 women). 622 357. Leaked audio recordings of IDF radio communicat ions suggest t hat t he fire was indiscriminate, wit h one Lt . Colonel t elling his t roops “t o st op firing like morons” and anot her ordering a hesitant soldier, “Go, go, go![…] Give him another shell” 623 . According t o a media report , t he Givat i Brigade Commander invoked t he Hannibal Direct ive in response t o t he capt ure of t he IDF soldier 624 : “[A]t 09:36, after speaking to the commander there I uttered a word no one wants to utter – Hannibal, i.e. abduction. I started planning an assault towards Rafah. I ordered all of our forces to move there, in order to prevent the abductors from moving”.

358. T he “Hannibal Direct ive” was devised in 1986 and is widely underst ood t o be “a code word for an IDF order t hat st ates that in the case of abduct ion of a soldier, everyt hing must be done t o prevent t he escape of t he abduct ors or capt ors, using gunfire, even if it

616 617 618

619 620 621 622 623

624

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W219, para 7 W221.

W257, W258.

W257.

W258 W258 Figures from the UN Protection Cluster Working Group.

Ynet. Yoav Zitun:Hannibal Directive: Exclusive tapes reveal details of IDF's Black Friday; 31 December 2014; at: http://www.ynetnews.com/articles/0,7340,L-4609436,00.html Ynet. Yoav Zitun:Hannibal Directive: Exclusive tapes reveal details of IDF's Black Friday; 31 December 2014; at: http://www.ynetnews.com/articles/0,7340,L-4609436,00.html

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endangers t he life of the soldier.” 625 According to official Israeli sources, the “IDF General St aff Direct ive for Contending wit h Kidnapping At t empt s [also known as t he “Hannibal Direct ive”] provides met hods and procedures for prevent ing and frust rat ing at t empt ed kidnappings of Israeli nationals (both civilians and IDF soldiers). This Directive has been in force for decades and has been amended several t imes. […] As an operat ional order, however, t he Directive’s specific content is classified. As wit h ot her classified direct ives, revealing all of t his Direct ive’s cont ent s would provide adversaries wit h t he abilit y t o frust rat e its very purpose.” 626 It appears t hat t he procedure is premised on a very st rong polit ical commitment by Israel to do its ut most t o ensure t hat no soldiers are capt ured by armed groups t o avoid subst ant ial leverage t o armed groups in subsequent negot iat ions with Israel. 627 359. A press report quot ing t he commander of t he IDF’s Orev Unit provides a possible explanat ion for how t he IDF viewed t he goals of t he 1 August operat ion in Rafah: “In such an event you do all to prevent the country from experiencing anothe r turmoil as it underwent in the Gilad Shalit affair”628 360. While t he Hannibal procedure was modified several t imes 629 , apparent ly t o clarify t hat it did not call for t he killing of capt ured soldiers, it appears st ill t o be unusually expansive in t erms of defining what t arget s are legit imat e milit ary object ives.

IDF’s and Palestinian armed group’s version of events 361. T he commander of t he reconnaissance bat talion of the Givat i Brigade, Lieu Col Eli Gino, was report ed as st ating that , “T he fire was proport ionat e, and when t hey kidnap a soldier, all means are kosher, even if it exact s a price” 630 . T he press furt her quot ed Col. Wint er as saying t hat, “those who kidnap need to know t hey will pay a price. T his was not revenge. T hey simply messed wit h the wrong brigade”631 . T he events of 1 August in Rafah are present ly being considered by Israel’s Military Attorney General for a possible criminal invest igat ion.

362. Israeli media reported on 15 April 2015 that an internal investigation by t he IDF had concluded t hat no war crimes had been commit t ed. Inst ead, t he findings shed light on

625

626

627

628

629

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631

The Association for Civil Rights in Israel reports 130 - 150. Letter to the Attorney General dated 10 August 2014.

Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 44 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf , Accessed 30 M ay 2015.

See also: Haaretz. Anshel Pfeffer: The Hannibal Directive, Why Israel risks the life of the soldier being rescued; 3 August 2014; at: http://www.haaretz.com/news/diplomacy -defense/.premium-1.608693 Ynet News. Yoav Zitun: Golani Commanders from the Rafah Battle – Our conscience is clear; 24 September 2015; at: http://www.ynet.co.il/articles/0,7340,L-4568410,00.html Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 44 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf , Accessed 30 M ay 2015. see also: The New Yorker. Ruth M argalit: Hadar Golding and the Hannibal Directive; 6 August 2014; at: http://www.newyorker.com/news/news-desk/hadar-goldin-hannibal-directive The Times of Israel. M itch Ginsburg: Recordings shed harrowing new light on IDF’s response to Gaza abduction; 30 December 2014; at: http://www.timesofisrael.com/gaza-abduction-comes-to-lifein-recordings/#!

In an interview with Yediot Ahronot quoted by AP: Karin Lau and Ibrahim Barzak: Israeli fire on Gaza town raises war crimes claim, 31 August 2014. At: http://news.yahoo.com/israeli-fire-gazatown-raises-war-crimes-claim-120049238.html;

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operat ional flaws vis-à-vis t he IDF’s reaction t o t he capt ure of Lt . Hadar Goldin. 632 T he media cit e Givat i Brigade commander Col. Wint er as having st at ed t hat “[t ]he brigade’s plan of operat ion t ook int o account t he cease-fire going int o effect and was based on a sit uat ion in which, by 8 a.m., t he forces would cease at t acks and only aft er securing t he t erritory, would init iate searches for tunnels. However, this was not the situation, and when t he cease-fire went into effect, forces from the patrol unit entered t o search an area that had not been conquered and in an unsecured sect or”. The IDF apparently concluded t hat “from an analysis of t he unit’s actions, it can be det ermined t hat in cont rast t o st andard warfare and t he simple instructions given during Operation Protective Edge, here, as a brigade, we managed t o confuse t he fight ers and t o put t hem in an unreasonable sit uat ion. 633 363. Wit h respect to Hamas’s version of events, according to press reports, Hamas st at ed t hat “Israel pretends that one of its soldiers had been kidnapped t o cover it s crimes against t he civilians in Gaza st rip, and to divert the attention of international public opinion towards an Israeli prisoner wit h t he P alest inian resist ance.” He added: “We have no informat ion about an Israeli prisoner.” 634 Also according t o press reports, in a press release of 2 August, Al Qassam Brigades announced t hat it was not “aware of a missing soldier, nor his whereabout s or t he condit ions of his disappearance.” 635 Summary Legal analysis 364. Several fact ual elements of the shelling and bombing in t he Rafah area on 1 August 2014 lead t o important concerns as to the conformity of this attack wit h int ernat ional law.

365. Information received by t he commission concerning at t acks on all vehicles in t he area, including ambulances, as well as incident s in which groups of civilians appear to have been t arget ed by t ank fire, raises serious concerns as t o t he respect by t he IDF o f t he principle of distinction. The alleged invocat ion by IDF t roops of t he Hannibal Direct ive may indicat e t hat the objective of targeting vehicles was t o prevent the flight of t hose who had capt ured an IDF soldier 636 . While targeting a vehicle whose passengers are fighters and who are escaping wit h a capt ured soldier may be legit imat e, t he informat ion reviewed by t he commission reveals a different course of events. In Rafah, all vehicles appear t o have been t arget ed, irrespect ive of t heir civilian or milit ary use. Civilian vehicles, including ambulances, are civilian objects and cannot be t arget ed unless t hey are used in a way t hat makes an effect ive cont ribut ion t o t he milit ary act ion. Int ernat ional humanit arian law provides t hat in case of doubt whet her an object that is normally used for civilian purposes is being used t o make an effective military contribut ion, it shall be presumed not t o be so used. 637 However, based on information collected by t he commission, the opposite appears t o have been t he case on 1 August in Rafah, where all vehicles in a cert ain area were

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Ynet News: Yoav Zitun: IDF's Gaza probe reveals Hamas outsmarted forces in Rafah;15 April 2015; at: http://www.ynetnews.com/articles/0,7340,L-4647096,00.html The Jerusalem Post, Preliminary investigation of ‘Hannibal’ incident: Operational mistakes, but no war crimes, 15 April 2015 at: http://www.jpost.com/Arab-Israeli-Conflict/Details-of-probe-intokidnapping-of-IDF-soldier-during-Gaza-war-leaked-398046 http://archive.aawsat.com/details.asp?section=4&article=781630&issueno=13031#.

VREy6Et5mw1 Sky News Arabia: Al Qassam says: we have no information about the missing Israeli soldier. 2 August 2014. At http://www.skynewsarabia.com/web/article/678484/‫المفقود‬- ‫اإلسرائيلي‬- ‫بالجندي‬- ‫علم‬- ‫القسام‬ Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 44 footnote 67 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf , Accessed 30 M ay 2015.

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t arget ed. This amounts to a deliberate attack against civilians and civilian object s and may amount t o a war crime.

366. St at ement s made on IDF audio recordings, as well as t he amount and t ypes of ordnance fired at some Rafah neighbourhoods, also raise concern wit h regards t o t he respect by IDF forces of the principle of dist inct ion. T he alleged use of over 250 mort ar shells, a st at istical weapon with a wide impact area, in a densely populat ed area, as well as t he firing of over 800 artillery and tank shells wit h wide area effects in a densely populat ed and built up area over t he period of a few hours, indicate the use by t he IDF of methods and means of combat which in the circumstances were of a nature to st rike milit ary object ives and civilians or civilian object s wit hout dist inct ion. T his is demonst rat ed by t he high number of shells t hat hit the Al Najjar hospital premises, and t he number of civilians who were st ruck by shells in t he st reet while attempt ing t o flee. T he at t ack of 1 August 2014, t herefore, appears t o have violat ed t he prohibit ion of indiscriminat e at t acks.

367. In relat ion to the “Hannibal Directive”, the IDF has st ressed t hat : “ allegat ions t hat IDF direct ives, and part icularly, t he IDF General St aff Direct ive for Cont ending wit h Kidnapping At t empt s (also known as t he “Hannibal Direct ive”), permit IDF forces t o exercise force in a manner that does not accord wit h t he principle of proport ionalit y, are incorrect . […] T he Direct ive does not grant permission t o violat e t he Law of Armed Conflict , including t he rules relating t o dist inction and proportionality. To the contrary, and as wit h all IDF direct ives concerning combat situations, IDF forces are required t o adhere t o t he Law of Armed Conflict at all times when implement ing t he direct ives’ provisions.

T he use of unrest rained force is never permit t ed, even in t he direst of circumst ances.” 638 368. Nevert heless, the attack in Rafah on “Black Friday” raises concerns wit h regard t o t he IDF’s respect of t he principle of proport ionalit y. T he invocat ion of t he ‘Hannibal Direct ive’ and reported st atements by IDF officers present during t he attack provide a clear indicat ion of t he object ive of t he at t ack – namely prevent ing or put t ing an end t o t he capt ure by an armed group of an IDF soldier. Given the amount and t ype of ordnance used, as well as t he likely presence of civilians in t he area due t o t he announced ceasefire, a reasonable milit ary commander should have known t hat such an at t ack coul d result in a high number of civilian casualt ies as well as in damage t o civilian object s. In order for an at t ack to be considered proportionate, international law requires t hat the expected incidental loss of civilian life and damage t o civilian object s not be excessive in relat ion t o t he concret e and direct milit ary advant age ant icipat ed.

369. T he lat t er point must be examined in dept h. P revent ing t he capt ure or freeing a soldier from captivity may be conceived as a concrete and direct military advant age, albeit of a limit ed nature, since the loss of one soldier in a large army such as t he IDF does not reduce it s military capability. When doing so in a manner t hat is highly likely t o result in t he soldier’s deat h, it furt her reduces t he concret e and direct milit ary advant age. On t he ot her hand, some have argued t hat in such a case t he proport ionalit y t est must t ake int o account t he st rat egic considerat ion of denying t he armed groups t he leverage t hey could obt ain over Israel in negot iat ions for t he release of t he capt ured soldier. 639 370. T he commission considers t his an erroneous int erpret at ion of int ernat ional humanit arian law. T he leverage t hat armed groups may obt ain in negot iat ions does not depend solely on t he capture of a soldier, but on how t he Government of Israel decides t o 638

639

Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p. 44 at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf , Accessed 30 M ay 2015.

John M erriam, M ichael Schmitt, Israeli Targeting: A Legal Appraisal, Naval War College Review, Fall 2015, p. 13 (Forthcoming publication) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596836.

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react t o the capture in the aftermath. The strategic military or polit ical advant age sought is t herefore not a concret e and direct milit ary advant age as required by int ernat ional humanit arian law. An assessment of the strategic and political advantage depends on a large number of post facto element s which are merely speculat ive for t he commander on t he ground at t he moment he decides t o launch the attack. Indeed, t he proposed int erpret at ion of t he anticipated milit ary advant age, which would allow for abst ract polit ical and longt erm st rategic considerations in carrying out t he proport ionalit y analysis, would have t he consequence of empt ying t he proport ionalit y principle of any prot ect ive element . T he commission finds t herefore that the IDF attack of 1 August 2014 in Rafah could have been expect ed t o cause incidental loss of civilian life and damage t o civilian objects which would be grossly excessive in relat ion to the anticipat ed concret e and direct milit ary advant age, and may t herefore amount t o a war crime.

371. What is more, the commission believes t hat the military cult ure result ing from such policy priorit ies may have been a cont ribut ing fact or for t he unleashing of massive firepower on Rafah, in total disregard for its impact on t he civilian populat ion. Applying t he ‘Hannibal Direct ive’ in t he cont ext of a densely populat ed urban environment using heavy weaponry inevit ably leads t o violat ions of t he principles of dist inct ion and proport ionalit y 372. T he nature of the attack, as well as st atements reportedly made by an officer present in Rafah aft er the events640 , indicate that the IDF did not comply wit h its obligat ion to t ake const ant care to spare civilians. Based on t he informat ion gat hered by t he commission, it does not appear that the IDF t ook all feasible precaut ions to adequat ely verify whet her t he t arget s of t he at t acks were indeed lawful milit ary object ives and t o choose t he weapons used in t he at t ack wit h a view t o avoiding or at t he very least t o minimizing civ ilian casualt ies and damage t o civilian object s.

373. Finally, as t he IDF had aerial assets over Rafah on “Black Friday”, it is very likely t hat commanders on the ground quickly gained knowledge of t he calamitous impact of t he at t acks on civilians and civilian objects. This knowledge of t he likelihood t hat t he int ense bombardment would lead t o significant casualties is illustrated by t he warning given t o t he doct ors in Al Najjar hospital to evacuat e t he hospit al. Yet , even t hough t he at t ack last ed several hours, it was not suspended. T his may constitute a violation of the obligat ion t o do everyt hing feasible t o suspend or cancel an at t ack when it becomes apparent it is not respect ing t he principles of dist inct ion or proport ionalit y.

374. T he st rikes against the Al Najjar hospital and against ambulances in Rafah also raise concerns as t o t he respect by Israel of the obligation to protect medical units and t ransport s in all circumst ances. d.

Attack on neighbourhood of Shuja’iya market 375. On 30 July 2014, t he Israeli aut horities announced a four-hour unilateral t ruce from 3 t o 7 p.m. The IDF st ated: “The humanitarian window will not apply to the areas in which IDF soldiers are current ly operat ing,” (…) “Resident s must not ret urn t o areas t hat t hey have previously been asked t o evacuat e.” 641 The Shuja’iya market neighborhood consists of t he market and shops, homes and warehouses.

640 641

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See para. 361 Times of Israel: Itamar Sharon, Lazar Berman and M arissa Newman: Government resolves to intensify Gaza offensive, after 3 soldiers killed; 30 July 2014; at: http://www.timesofisrael.com/day -23-us-and-israel-deny-report-of-harsh-obama-netanyahu-callrockets-fired-on-ta-confusion-over-truce/

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376. Al Selek family house: On 30 July at about 3.30 p.m. according t o t he wit nesses and 5 p.m. according to the IDF, the roof of the Al Selek family house locat ed in t he market neighbourhood was hit by shelling, killing 8 members of t he Al Selek family, including 7 children aged bet ween 3 and 9 and t heir grandfather aged 70. 642 . The IDF indicated t hat the shelling was in response t o an ant i-t ank missile […] fired at IDF forces operat ing in t he out skirt s of Shuja’iya, at approximat ely 4.10 p.m. followed by “an int ense and on -going burst of mort ar fire, emanat ing from a built -up area in t he neighbourhood, t arget ing t he forces”, result ing in t he injury of an IDF soldier. According to the IDF, the commanders in t he field believed t hat the shelling by P alestinian armed groups could provide cover for an at t empt t o capt ure a soldier. 643 377. T he commission interviewed t hree family members who were present in t he house during t he at t ack and one wit ness who arrived at t he scene a few minut es lat er. T he wit nesses who had been at t he scene said t hat t he family children were on t he t errace playing when t he house was hit 4 t imes, wit h the first 2 projectiles striking t he roof.644 They t old t he commission that, when they heard the first explosion, t hey st art ed looking for t he children, only t o realize t hat t he children had been playing on t he rooft op wit h t heir grandfat her. The witnesses and family members rushed t o the terrace, where they found that seven children and t heir grandfat her were dead. Anot her child was seriously injured.

Wit nesses st at ed t hat t he at t ack was ent irely unexpect ed because t hey believed t hat t he t ruce, which had been announced on local T V stations, would prevail during t hese hours. 645 T he wit nesses insisted that nobody in t he house was affiliated wit h an armed group and t hat t heir family house had never been t arget ed before. 646 378. T he IDF fired anot her round of shells at t he market n eighbourhood, about 10 minut es aft er t he shells hit t he Al Selek family home, just as t hree ambulances and t he paramedics arrived at t he scene.647 Many of t he people who had gat hered around t he Al Selek house t o t ry and help survivors came under at t ack by t h e second round of shelling.

One journalist who wit nessed t he at t ack said t hat what st unned him was t he apparent t arget ing of ambulances and journalists who had rushed t o provide assist ance to the injured and cover t he incident.648 One of t he survivors said t hat he saw an ambulance being hit by a shell, which killed one paramedic and one journalist , and killed and injured ot hers who were in t he vicinit y of t he house. 649 T he event s at Shuja’iya market were furt her corroborat ed by a st at ement from a man who was injured in t his incident and t ransferred t o a hospit al in Cairo. 650 379. T hese allegat ions are corroborat ed by t wo video recordings. 651 T he videos show byst anders and journalist s gat hering in t he st reet aft er t he at t ack on t he house and t hree ambulances and a fire t ruck arriving at t he scene, wit h t he sirens clearly audible. A few seconds lat er a large explosion is heard, the cameraman falls to t he ground and dust covers t he camera. One of t he videos shows t he dying cameraman cont inuing t o film aft er t he

642 643

644 645 646 647 648 649 650 651

W207 and W003.

IDF M AG, Decisions of the IDF Military Advocate General regarding Exceptional Incidents during Operation 'Protective Edge' – Update No.3, Available at: http://www.law.idf.il/163-7183en/Patzar.aspx W003,W004 and W207 W004 W003.

W004.

W200.

W207.

W061.

Video and other materials provided by W143.

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incident , and t he ambulances being hit by a rocket. There are persons on t he ground asking for God’s help. At least eleven explosions are heard, one every few seconds, following which dozens of injured persons can be seen in t he st reet and t hree persons not moving any more.

380. On t he basis of t he information available, it appears t hat t he weapons t he IDF used in t his incident were high explosive 120 mm mort ars, which have a circular error probabilit y of 136 meters, and are t herefore imprecise. Remnants of these shells were found inside and around t he Al Selek house.

381. As a result of t he second round of shelling, 23 persons were killed, including 3 journalist s, 1 paramedic, and 2 firemen. In addit ion, 178 ot hers were injured, among t hem 33 children, 14 women, 1 journalist, and 1 paramedic. Four are report ed t o have died as a result of t he injuries t hey sust ained in t his at t ack. 652 382. Hamas condemned t he at t ack 653 , and media report s indicat e t hat an IDF spokeswoman st at ed t hat Shuja’iya “was not in t he areas covered by it s humanit arian pause.”654 383. A MAG st at ement relat ing t o t he incident indicat es t hat t he IDF ident ified t he posit ions from which the shells were fired, but did not return fire immediately because t hey were t hought t o be civilian sites. At about 4.40 p.m., the IDF report edly fired a number of rounds of smoke-screening shells. As t his failed t o end t he mort ar fire from t he ar med groups, at approximately 5 p.m., the IDF decided t o ret urn fire towards t wo of the identified point s wit h five mort ar rounds, and about 18 minut es lat er t he forces fired anot her t en mort ar shells. The IDF explains that it chose to use mort ars as no aer ial alt ernat ives were available. T he IDF st ated t hat warnings for civilians t o evacuat e t he area had been issued; t hat the forces believed t hat the likelihood of harming civilians by t heir fire was low; and t hat t heir lack of available real-t ime aerial surveillance did not allow t hem t o ident ify civilian presence at the time of the attack, whereas previous surveillance had assessed t hat no civilians were present in open areas of the neighbourhood. According t o the IDF, six of t he deceased were milit ant s.

384. T he MAG, having examined the case, “ did not find t hat t he act ions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct . As a result , t he MAG ordered t he case t o be closed, wit hout opening a criminal investigat ion or ordering f urt her act ion against t hose involved in t he incident .” 655 385. While t he commission cannot completely exclude t he possibility that misfired shells by a P alest inian armed group may have resulted in injury to civilians, it has not received or found any information to support that version of events. Witness interviews and st atement s by t he MAG, appear rather to confirm that it was t he t wo rounds of mort ar shells fired by 652

653

654

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PCHR submission including pictures of weapons remnants;; see also figures from the Palestine Red Crescent Society which reported more than 250 people injured; 30-35 patients came to Al Quds Hospital, mostly with amp utations and 4 of these people died. Quoted by: Physicians for Human Rights. Gaza 2014. Findings of an independent medical fact-finding mission. At https://gazahealthattack.files.wordpress.com/2015/01/gazareport_eng.pdf, p. 47 f Ezzat al-Risheq, member of Hamas politburo: Zionist artillery shelling of people in Shuja'iya market.

30 July 2014. At: https://www.facebook.com/Izzat.risheq/posts/820890401262272 Al-Jazeera: Mass casualties as Gaza market area bombed. 30 July 2014. At: http://www.aljazeera.com/news/middleeast/2014/07/gaza-market-bombed-during-israel-army-pause2014730153426922600.html IDF M AG Corps Website: Decisions of the IDF M ilitary Advocate General regarding Exceptional Incidents during Operation 'Protective Edge' – Update No. 3; 03 M arch 2015; at: http://www.law.idf.il/163-7183-en/Patzar.aspx

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t he IDF t hat result ed in deat h and injury t o civilians in t he Shuja’iya market area. T he commission t akes note of the IDF’s assertion that it did not have real-time surveillance and t hat it did not have aerial weapons plat forms available. However, while t he commission does not have inside knowledge of t he workings of t he IDF, it finds it difficult t o believe t hat the IDF, with the subst ant ial amount of aerial means available t o it and t he relat ively small area of Gaza t o cover, would leave t roops coming under const ant fire wit hout any aerial surveillance for over 50 minutes. In addit ion, owing t o t he proximit y of several air bases, locat ed merely a few minut es from Gaza, t he commission also finds it difficult t o underst and why aerial plat forms wit h more accurate and precise weapons t han mortars were not available. The commission finds it hard t o believe that the IDF had no knowledge of the presence of ambulances in t he area in the aftermath of the initial strike, especially when the rescue crews, a fire t ruck, and t hree ambulances arrived at t he scene wit h sirens blazing loudly. T he commission not es t hat usual milit ary pract ice in such cases makes use of ‘forward fire controllers’ who observe t he target to direct artillery or air support. If this was t he case in t his incident, t he commission cannot comprehend how t he presence of many civilians and t he arrival of rescue crews was not observed during an 18 minut e period.

Finally, t he IDF assessment that the likelihood of hitting civilians was lower due t o t he fact t hat warnings had been issued t wo days earlier was plainly erroneous. On 20 July, 10 days earlier in t he same neighbourhood, scores of civilians were killed by IDF shelling and bombing, despit e warnings t hat had been issued in t he previous days. T he IDF a nd it s commanders t herefore must have been well aware t hat general warnings t o evacuat e were not aut omatically complied wit h and t hat civilians oft en refused t o vacat e t heir homes.

Combined wit h t he fact t hat t his incident t ook place during a ceasefire, a reasonable milit ary commander should have envisaged t he likely presence of civilians in t he area and should have carried out more extensive verifications before firing mort ar shells wit h widearea effect s.

Summary legal analysis 386. T he at t ack raises a number of quest ions as t o it s conformit y wit h t he principles relat ed t o t he conduct of host ilit ies.

387. A number of element s of t his incident indicat e t hat t he IDF did not respect t he principle of precautions in at t ack. T he fact t hat t he IDF did not dep loy real-t ime aerial surveillance for a period of over one hour point s t o a failure t o do everyt hing feasible t o assess t he presence of civilians and whet her the attack could be expect ed t o cause incidental “excessive” loss of civilian life. The decision by t he IDF to use mortars, rather than availing t hemselves of more precise weapons, suggest s t hat t he IDF did not t ake all feasible precaut ions t o choose means wit h a view t o avoiding or at least minimizing civilian casualt ies. T hese decisions point t o a failure by t he IDF t o t ake const ant care t o spare civilians, in violation of the cust omary international law principle as expressed in art icl e 57 of Addit ional P rot ocol I. 388. Mort ars are considered à wide- area weapon which, if used in a built -up, densely populat ed area, are likely to strike milit ary object ives and civilians wit hout dist inct ion – part icularly given a scenario in which over 50 per cent of t he 120 mm mort ar shells fired are likely t o fall between 136 and 300 metres from the intended t arget . Combined wit h t he impact of the blast and fragmentation of the shell, this type of weapon is likely t o injure or kill persons several hundred meters from the intended t arget . This appears t o be confirmed by t he video recording of the incident in which the different levels of sound from the blast s seem t o indicat e that the t en shells of t he second round st ruck locat ions locat ed quit e far apart . The attack on the Shuja’iya market area therefore may have violat ed t he prohibit ion

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of indiscriminat e at t acks, cont ained in cust omary law as reflect ed in art icle 51(4) of Addit ional P rotocol I. Depending on the circumstances, this conduct may qualify as direct at t acks against civilians656 and const it ut e a war crime. e.

Patterns and legal analysis 389. Based on t he above and on t he review of submissions and publicly available information, the commission identified certain patterns wit h respect to the IDF’s operations in Gaza in summer 2014. T hese are analysed against applicable int ernat ional law.

Protection of civilians, force protection and the Hannibal directive 390. “[I]n operation Cast Lead, the commanders learned they can’t risk the lives of their subordinates just so New York Times reports will write a good word about them. We have to make a huge effort to protect civilian life, this is a consensus. But where does it stop? I say, if you warned the civilians that you are about to act, and many left and some stayed – you have grounds to assume that they stayed because they wanted to. Because they want to aid the terrorists by surrounding them with civilians. It is unacceptable to send soldiers inside, to separate civilians from terrorists, to risk the lives of your soldiers in order to save civilians; you have already made efforts to save them.” 657 Asa Kasher, one of t he draft ers of t he IDF Code of Et hics 391. “The idea was to minimize casualties on our side, and use as much of our arsenal as was needed to eliminate any chance of there being someone inside.” IDF soldier t est imony gat hered by Breaking t he Silence 658 392. An examinat ion of t he IDF’s operat ions in Shuja’iya, Rafah and event s near t he Shuja’iya market on 30 July indicat es t hat t he prot ect ion of IDF soldiers was a major considerat ion for the IDF, overruling and, at times eliminating, any concern for t he i mpact of it s conduct on civilians. T he examinat ion of t hese ground operat ions leaves t he commission wit h the dist inct impression that when soldiers’ lives were at stake or there was a risk of capt ure, the IDF disregarded basic principles on the conduct of hostilit ies, namely t he principles of dist inct ion, proport ionalit y and precaut ions.

393. While int ernational humanitarian law does not spell out whet her t he safet y of t he at t acking force is an element to be considered in t he evaluation of military advant age when assessing proportionality, and t he weight to be given it when determining t he precaut ions to be t aken in attack 659 , the ICRC notes that under international humanitarian law members of t he armed forces “have the right t o directly participate in hostilities, the corollary of which is t hat they may also be lawfully attacked by t he adversary.” 660 Therefore it is inherent in

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658

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International Criminal Tribunal for the former Yugoslavia, Prosecutor v.Galic, case No. IT-98-29-T, Judgement, 5 December 2003, para. 57.

Assa Kasher. Bayabasha, Ground Forces M agazine. Tomer M eir: 20 years IDF ethical code – two of the members of the drafting committee discuss the codes relevance today; Issue 28; January 2015, page 44 at http://mazi.idf.il/6216-he/IGF.aspx Breaking the Silence. This is how we fought in Gaza; testimony 5, p. 31, at: http://www.breakingthesilence.org.il/testimonies/database/?tzuk=1 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 2000, available at http://www.icty.org/sid/10052#IIIwork : “The questions which remain unresolved once one decides to apply the principle of proportionality include the following: [….] 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?”

ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 28th International Conference of the Red Cross and Red Crescent, 2003, p. 13

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any armed conflict t hat members of armed forces are put in danger. T he law of armed conflict regulat es t he conduct of part ies t o host ilit ies in part icular by prohibit ing t he t arget ing of civilians and by limit ing t he amount of harm t o which t hey are incident ally exposed when a milit ary object ive is at t acked. While milit ary considerat ions are legit imat ely t aken int o account , int ernat ional humanit arian law provisions “clearly emphasize t he prot ect ion of civilians and civilian object s.” 661 394. T he Humanit arian P olicy and Conflict Research P roject (HP CR) Manual on Int ernational Law Applicable to Air and Missile Warfare st at es t hat “t he fact or ing in of such milit ary considerations [the survival of military aircraft and their crews] may not result in a neglect of humanitarian obligations under t he law of international armed conflict. T his means t hat , whereas a part icular course of act ion may be considered non-feasible due t o milit ary considerations (such as excessive risks to aircraft and their crews), some risks have t o be accept ed in light of humanit arian considerat ions.” 662 T he commission t herefore affirms t hat military considerations, such as t he safet y of forces, including from capt ure, should not be an overriding fact or for a reasonable commander weighing t he proportionality of an at t ack. T he prot ect ion of civilians must cont inually be t aken int o account and armed forces of parties to a conflict must accept some level of risk to their own fight ers for t hat purpose.

395. T he commission not es wit h concern t he appearance of new t erminology in t he debat e relat ing t o respect of international law during t he latest hostilities. The term “enemy civilian” has been used by Asa Kasher, t he draft er of t he IDF Code of Et hics. 663 T he commission believes t hat it is important t o clarify t hat t he concept of “enemy civilians” does not exist in international law. One of the most elementary principles of int ernat ion al humanit arian law is t he obligat ion t o dist inguish bet ween combat ant s and civilians; however it never establishes different categories of civilians. The commission reiterates that a civilian is a civilian regardless of nat ionalit y, race or t h e place where he or she lives.

Warning and the continued protected status of civilians 396. As described above, prior to most attacks, the IDF sought to warn t he populat ion in advance by means of leaflets,664 loudspeaker announcements, telephone and t ext messages and radio broadcast s, which led t o t he successful evacuat ion of some areas. 665 Several wit nesses int erviewed by t he commission said that they had received warnings in t he form of recorded t elephone messages, t ext messages or t hrough leaflet s.

397. While t hese general warnings appear t o have saved t he lives of many people who heeded t hem, in other cases, inhabitants did not leave home for a number of reasons. T hus,

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Ibid Commentary to Section A, Para. 1 (q); available at http://www.ihlresearch.org/amw/manual/ “I have argued at greater length elsewhere, no state has or should shoulder as much responsibility for the safety of enemy civilians as it does for its own people”. Assa Kasher. The Ethics of Protective Edge, Jewish Review of Books, Fall 2014. Available at http://jewishreviewofbooks.com/articles/1104/the-ethics-of-protective-edge/ See IDF blog IDF Drops Warning Leaflets in Gaza. 17 July 2014 with texts at: http://www.idfblog.com/blog/2014/07/17/idf-drops-warning-leaflets-gaza/ . See also OCHA Gaza Emergency Situation Reports of late July 2014.

For a detailed discussion see also: Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict; p. 30-37; at: http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed 30 M ay 2015.

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OCHA reported on 20 July t hat the majority of the 92 000 inhabit ant s of Shuja’iya, a very densely populat ed neighbourhood of Gaza cit y, had remained in t heir homes 666 .

398. Based on t he t estimonies the commission has received, t he following reasons were ident ified for resident s’ failure t o leave: 

T he fact that people were not sure in which direct ion t o move as shelling and air st rikes were t aking place in many part s of Gaza. Some of t he commission’s wit nesses who chose t o remain despit e warnings explained t hat t hey had decided t o st ay in t heir homes because t hey felt t hat t hey had nowhere else t o go and crossings int o Israel and Egypt were blocked. Ot hers believed t hat cert ain areas would not be t argeted as t hey were calm wit hout milit ary act ivit y. One wit ness int erviewed by t he commission found t he warnings in t he media “confusing” and referred t o t hem as “rumours”.



As t he violence intensified, a sense of ‘no safe place’ spread, a fact or repeat edly ment ioned by wit nesses interviewed by t he commission and not ed by t he Unit ed Nat ions Office for t he Coordinat ion of Humanit arian Affairs (OCHA) 667 and NGOs668 . T he commission was also t old by a number of inhabitants t hat t hey had decided t o move to relatives’ houses inside t he same neighbourhood. Also, several of t he families whose cases were examined by t he commission and ot hers 669 had moved in and out of several places which, t hey t hought , would be safer, over t he days and weeks prior t o when t hey were at t acked.



Since most of the general warnings did not provide concret e t imeframes and t he condit ions in shelters were poor, several inhabitants returned home t o collect items t hey and t heir families needed.

399. Against t he backdrop of a densely populated small area such as Gaza, from which no exit or fleeing is possible, 44 per cent of which is either a no-go area or has been t he object of evacuat ion warnings, 670 with, at times, 28 per cent of t he populat ion displaced, 671 and wit h severe const raint s on humanit arian assist ance, warnings cannot be expect ed t o “empt y” ent ire areas. Furt hermore, t he generalized and oft en unspecific warnings somet imes resulted in panic and mass displacement, furt her exacerbat ing t he sit uat ion. 672 400. T he commission notes that official Israeli sources indicated t hat “[a]lt hough Hamas aut horit ies act ively encouraged civilians t o ignore t he IDF’s warnings and refrain from evacuat ing, t he IDF did not regard civilians who heeded such advice as volunt ary human shields and t hus legit imate target s for at t ack. Nor did t he IDF discount such civilians for

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OCHA Gaza Emergency Situation Report. 20 July 2014, p.2 OCHA, Gaza Initial Rapid Assessment, 9 September 2014, available at: http://www.ochaopt.org/documents/gaza_mira_report_9september.pdf , p. 7 “As a result, there was no guaranteed safe space in the Gaza Strip, nor were there any safe escape routes from it.” Physicians for Human Rights. Gaza 2014. Findings of an independent medical factfinding mission. At https://gazahealthattack.files.wordpress.com/2015/01/gazareport_eng.pdf, p. 38 See e.g. Kilani in the chapter on attacks on houses, where the family had moved from house to house.

B’Tselem. Black Flag. January 2015, p. 55 and individual testimonies.

OCHA Gaza Emergency Situation report of 22 July. “Since the launch of the [Israeli ground offensive] over 120,000 have fled their homes and a three kilometer-wide strip, encompassing 44 per cent of Gaza’s territory, has been declared by the Israeli military a ‘buffer zone’.”, p. 1; at: http://www.ochaopt.org/documents/ocha_opt_sitrep_23_07_2014.pdf OCHA, Gaza Initial Rapid Assessment, 9 September 2014, available at: http://www.ochaopt.org/documents/gaza_mira_report_9september.pdf , p. 3 See e.g. B’Tselem: Black Flag. January 2015; p. 56 at: http://www.btselem.org/download/201501_black_flag_eng.pdf

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purposes of it s proport ionalit y analyses.”

However, several IDF st at ement s and declarat ions describing t heir military objectives and t actics provide a st rong indicat ion t hat civilians remaining in the areas t hat had been “warned” were under st ood as having chosen t o st ay and could be regarded as legit imat e t arget s. For inst ance, Major Amit ai Karanik, Head of t he Doctrine Desk at t he Infant ry Corps HQ acknowledged “We t ry t o creat e a sit uat ion whereby t he area where we are fight ing is st erile, so any person seen t here is suspect ed of engaging in t errorist activity. At the same time, we make the ut most effort t o 674 remove t he populat ion, whet her t his means dropping flyers or shelling.”

401. T he picture of “sterile” zones painted by t he IDF appears t o have had implicat ions for t he way in which IDF soldiers on the ground approached civilians who remained when t hey encount ered t hem in Shuja’iya and Khuza’a. For example, t he commission received report s of IDF soldiers asking civilians why they were st ill in these locations in spite of t he 675 warnings.

Such st at ement s are report ed t o have led t o t he assumpt ion by some IDF soldiers t hat the usual proportionality and dist inction rules may have changed. Breaking t he Silence, on t he basis of mult iple t est im onies by soldiers, concluded: “T he soldiers were briefed by t heir commanders t o fire at every person they identified in a combat zone, since t he working assumpt ion was t hat every person in t he field was an enemy. […] While official milit ary orders allow for fire only aft er ident ifying a weapon, int ent , and t he enemy’s realist ic capabilit y, many soldiers t est ified t hat t hey were t old t o shoot at any t hreat , imminent or suspect ed.” 676 402. T he cust omary rule of international humanit arian law reflect ed in art icl e 57(3) of 677 Addit ional P rotocol I, provides t hat “effective advance warning shall be given of att acks which may affect the civilian population, unless circumst ances do not permit .” While t he obligat ion t o provide warnings is not absolut e (for example, if the element of surprise or the speed of response are essential in the attack), any warning issued must be effect ive. While int ernational humanitarian law does not specify what elements are required for a warning to be considered effect ive, the commission considers that two of the main considerat ions are: (1) t hat t he warning is craft ed in a way t hat will be underst ood by t hose t o whom it is addressed; and (2) t hat what t he warning requires can realist ically be complied wit h.

403. In addit ion, t he specific circumstances in which t he civilian populat ion found it self have t o be t aken into consideration, in particular t he lack of any area t hat was considered safe by t he populat ion. All areas in Gaza, including t hose towards which t he population was direct ed, had been or were likely t o be hit by air strikes. In addit ion, t he leaflet s inst ruct ed t he 92 000 st rong populat ion of Shuja’iya t o move t o neighbourhoods in cent ral Gaza, which were already densely populat ed, for an undet ermined period of t ime -- uncert aint y which furt her complicat ed t he possibilit y of following such inst ruct ions. Based on ext ensive knowledge of Gaza and it s societ y, as well as on t he experience of previous host ilities, the IDF should have been well aware of t he limit at ions of t he warnings issued.

T he general warnings t hat inst ruct ed people from ent ire neighbourhoods t o evacuat e t o ot her part s of Gaza do appear t o have saved many lives, which t he commission acknowledges. However, given t he fact t hat in Gaza no area was considered safe, t hese

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675 676

677

Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict; p. 13, at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf, accessed 30 M ay 2015.

Head of the Doctrine Desk at the Infantry Corps HQ, M ajor Amitai Karanik in BaYabasha, Ground Forces Journal; October 2014; No. 29, p. 62. Unofficial translation See e.g. W268 Breaking the Silence. This is how we fought in Gaza; p. 18; at: http://www.breakingthesilence.org.il/testimonies/database/?tzuk=1 ICRC, Database Customary International Humanitarian Law, Rule 20

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general warnings t o evacuat e ent ire neighbourhoods did not respect t he requirement of effect iveness in all cases.

404. T he issuing of warnings is only one of t he precaut ionary measures described in art icle 57 of Addit ional Protocol I. Regardless of t heir effectiveness, the fact t hat warnings were act ually issued does not dispense t he attacking party from observing the other specific precaut ionary measures mentioned in art icle 57. T he general obligat ion t o t ake const ant care t o spare the civilian population and objects remains valid t hroughout the attack even if specific precaut ionary measures such as warnings have been implement ed. Art icle 57(5) clearly est ablishes that the adoption of precautions does not modify the prohibit ion against at t acking civilians and civilian object s. T he issuing of warnings does not signify t hat t he subsequent at t ack will be lawful. T he st ated effort to create a ‘st erile combat zone’ and t o consider everyone in an area that has been t he object of a warning as engaging in ‘t errorist act ivit y’, could be const rued as an at t empt t o use warnings t o just ify at t acks against individual civilians. T he commission wishes t o emphasize t hat t he only way in which a civilian loses his protection from at t ack is by direct ly part icipat ing in t he host ilit ies. 678 Failure t o leave an area following a warning can in no way be viewed as direct ly part icipating in the hostilities. To infer aut omatically from the fact that a general warning to evacuat e has been issued for a given area, t hat anyone found inside t he zone is an enemy or a person engaging in ‘t errorist activity’, or issuing inst ructions to this effect, cont ribut es t o creat ing an environment conducive t o at t acks against civilians.

405. T he commission notes the allegat ions that Palest inian armed gr oups may have t old inhabit ant s t o st ay in t heir homes and disregard t he warnings issued by t he IDF 679 and addresses t his issue in sect ion V.A.5.

Use of artillery and other explosive weapons in built up areas 406. “In the first three weeks of the conquest of Iraq, in 2003, the U.S. armed forces captured cities and destroyed 1,600 armored vehicles of the Iraqi army, half of them tanks.

In Gaza, the IDF fought against an enemy that had no armored vehicles, and Israeli soldiers probably saw no more than a few hundred armed Hamas militants. On average, an Israeli tank fired seven times as many shells a day as an American tank in Iraq. We fired more antitank missiles from the ground than the Americans, and twice as many Hellfire rockets from helicopters.” Ofer Shelah, Member of t he Knesset Foreign Affairs and Defense Commit t ee 680 407. “The whole area gets blown up - gets hit with heavy barrage.” IDF soldier t est imony collect ed by Breaking t he Silence 681 408. As illust rat ed above, the IDF’s ground operat ion was marked by significant use of explosive weapons wit h wide-area effects in densely populat ed areas, including t he use of art illery and t ank shells, mort ars and air dropped high explosive munit ions. T he IDF

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Article 51(3) Additional Protocol I Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 19 M ay 2015.

Quoted in Haaretz, 24 April 2015: This lawmaker won’t let the Gaza War be pushed under the rug.

Breaking the Silence. This is how we fought in Gaza; testimony 47, p. 116; see also p. 33 and 48, 49 where the same process is described; at: http://www.breakingthesilence.org.il/testimonies/database/?tzuk=1

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report ed t hat during t he operat ion, 5000 t ons of munit ions were supplied. 682 During Operat ion “Protective Edge,” 14 500 tank shells and approximately 35 000 art illery shells were fired. 683 Haaret z quot ed IDF information indicating t hat, before the end of July, aft er t hree weeks of fighting, 30 000 shells had been discharged, “four t imes as much as in Cast Lead in 2008”. 684 The NGO “Action on Armed violence” (AOAV) observes t hat , while in Operat ion Cast Lead in 2008 3000 high-explosive artillery shells were fired, in 2014 t here were 19 000, a 533% increase. Based on figures suggest ing t hat over t he course of 2014’s fift y-day operation, a daily average of 680 art illery shells were fired in Gaza by t he IDF (compared t o 348 per day in t he 2008-09 operat ion), AOAV quest ions whet her t he IDF policies regulat ing t he use of artillery in densely populat ed areas may be t oo flexible and allow t oo much leeway t o commanders on t he ground. 685 T he commission not es official Israeli st atements indicating t hat art illery was used in urban areas only on an except ional basis when neighbourhoods were known t o be largely evacuat ed and followed st ringent prot ocols. 686 Even with these st rict conditions, the use of artillery with wide-area effect s in densely populat ed areas result ed in a large number of civilian casualt ies and widespread dest ruct ion of civilian objects. The commission is t herefore of the view that the use of such art illery is not appropriate in densely populated areas regardless of the legality of resort ing t o such weapons.

409. T he explosive power of these weapons and t he amount of ordnance used is not t he only cause of concern. T he fact t hat indirect -fire syst ems such as 155mm art illery or mort ars are considered ‘st at ist ical weapons’ demonst rat e t hat t he wide area dispersal of t heir shells is an expected out come, as this is how these weapons were designed t o work. 687 Based on research int o t he use of weapons in Operat ion “P rot ect ive Edge”, AOAV concludes: “T he Doher [self-propelled art illery t hat fires t he 155mm shells] is clearly a powerful and dest ruct ive weapon syst em. It is capable of firing large numbers of heavy, high explosive art illery shells across great dist ances in a short space of t ime. It is not , however, capable of firing t hese munitions in a precise manner. As such , AOAV believes t hat such weapon syst ems should not be used by t he IDF in at t acks against resident ial neighbourhoods or near t o ot her populat ed areas. ” 688 410. Mort ars are also considered as an area weapon which, if used in a built up, densely populat ed area, are likely t o st rike milit ary object ives and civilians wit hout dist inct ion.

When fired wit hout forward observers (artillery observer or mort ar fire cont roll er guiding

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IDF Website. Omer Shalit, Technological and Logistics Directorate: faster and more efficient: this is how munition is supplied to the fighting forces; 13/08/2014; at: http://www.idf.il/1133-21100HE/IDFGDover.aspx Bayabasha, IDF Ground Forces M agazine: 16 Facts on Operation cast led; Issue 29; October 2014 , page 47 at: http://mazi.idf.il/6216-he/IGF.aspx ; Haaretz: Amos Harel and Gili Cohen: Massive artillery shelling may have caused numerous civilian fatalities in Gaza. 15 August 2014.

Action on Armed Violence: Under fire Israel’s artillery policies scrutinised. December 2014, p. 14; At: https://aoav.org.uk/wp-content/uploads/2015/03/AOAV-Under-Fire-Israels-artillery-policiesscrutinised.pdf Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict; p. 49, at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf, accessed 30 M ay 2015. See also following paragraph regarding M AG investigations; Action on Armed Violence: Under fire Israel’s artillery policies scrutinised. December 2014, p. 11; At: https://aoav.org.uk/wp-content/uploads/2015/03/AOAV-Under-Fire-Israels-artillery-policiesscrutinised.pdf Action on Armed Violence: Under fire Israel’s artillery policies scrutinised. December 2014, p. 12; At: https://aoav.org.uk/wp-content/uploads/2015/03/AOAV-Under-Fire-Israels-artillery-policiesscrutinised.pdf

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t he aim of these weapons), over 50% of t he 120 mm mort ar shells fired are likely t o fall bet ween 136 and 300 met ers from the intended t arget . When a forward observer is used, a number of shells are nonet heless likely to fall at a certain dist ance from the int ended t arget (up t o several hundred met ers away) due t o t he ranging process. Combined wit h the impact of t he blast and fragment at ion effect s, t his t ype of weapon may injure or kill persons several hundred met ers from t he object of t he at t ack.

411. Wit h respect to t he use of mortars, the commission notes that t he MAG had already in 2010 recommended t he formulation of more st ringent definit ions in milit ary orders t o govern t he use of mortars in populated areas and in close proximit y t o sensit iv e facilit ies when examining an incident in which 120mm were used and caused casualt ies amongst civilians t aking refuge inside an UNRWA school. According t o an Israeli report , t he IDF Chief of General St aff had already in 2010 ordered work t o be undert aken on t his issue. 689 T he commission does not know whet her this work was completed, but notes t he similarities bet ween t he 2009 case, following which t he review of definitions was ordered by t he IDF, and t he 2014 at t ack during which t he Shuja’iya market neighbourhood was hit by approximat ely t en 120 mm mort ar shells result ing in t he deat h of 31 persons, t he vast majorit y of them civilians. This indicates that, despite the MAG’s 2009 -2010 call for more st ringent rules, the practice of using mort ars in densely populat ed areas appears t o be t he same 5 years lat er.

412. Anot her concern in t his cont ext is t he safet y dist ance for firing art illery near resident ial houses. According t o Human Rights Watch, the “lethal radius for a 155mm high explosive projectile […] is reportedly between 50 and 150 meters and t he expected casualty radius is bet ween 100 and 300 met ers [and] the error radius for a 155mm shell is usually 25 met ers.”690 While t he IDF has not so specified, it s current rules appear t o permit using 155mm artillery against targets located 100 metres from civilian homes (while t he safet y margin is 250 met res from IDF forces), as pointed out by a group of NGOs in 2006. 691 The commission notes that, according t o official sources, “the IDF direct ives applicable t o t he 689

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State of Israel M inistry of Foreign Affairs, Gaza Operation Investigations: Second Update, July 2010, para. 66. Available at: http://www.mfa.gov.il/M FA_Graphics/M FA%20Gallery/Documents/GazaUpdateJuly2010.pdf Stop Shelling Crowded Gaza City. Effect of 155mm Artillery Indiscriminate in Populated Areas. 16 January 2009. At: http://www.hrw.org/news/2009/01/16/israel-stop-shelling-crowded-gaza-city On 8 November 2006, six Israeli and Palestinian human rights organizations (Physicians for Human Rights - Israel, Al M ezan Center Human Rights in Gaza, B'Tselem, The Gaza Community M ental Health Program, The Association for Civil Rights in Israel, and the Public Committee against Torture in Israel) appealed to the High Court of Justice to request that it issue a ruling regarding the decision to reduce the 'security zone’ ”for shells fired into the Gaza Strip. The army has made no attempt to deny the fact that a decision was taken to reduce the minimal space allowed between a civilian population and the area from which the army fires shells from 300 meters to only 100 meters. See: “B'Tselem calls for criminal investigation, on suspicion of war crimes, in the killings in Beit Hanun”, 9 November 2006; at: http://www.btselem.org/press_releases/20061109; The High Court of Justice rejected the petition i.a. because the State announced “suspension of its use of the challenged method.

M oreover, the State claimed that should the decision be taken to return to the use of this method there will be discussion over the relevant restrictions and regulations for its implementation. Therefore, the petition became moot and the Court decided it should not address it. Should the IDF decide to return to the use of firing artillery shells in and around Gaza, the petitioner could then ask for the HCJ to revisit this issue.” Terrorism and Democracy, Issue No. 26, High Court of Justice Rejects Petition Related to IDF Use of Artillery Shells in Gaza. [HCJ 3261/06] January 31, 2011; available at: http://en.idi.org.il/analysis/terrorism-and-democracy/issue-no-26/high-court-of-justice-rejectspetition-related-to-idf-use-of-artillery-shells-in-gaza/ ; see also: Action on Armed Violence: Under fire Israel’s artillery policies scrutinised. December 2014, p. 16; At: https://aoav.org.uk/wpcontent/uploads/2015/03/AOAV-Under-Fire-Israels-artillery-policies-scrutinised.pdf

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2014 Gaza Conflict set stringent restrict ions on t he use of HE [high explosives] art illery shells — rest rictions t hat went above and beyond t he IDF’s obligat ions under t he Law of Armed Conflict and which were imposed as a matter of policy. T hese direct ives gen erally prohibit ed t he firing of HE shells int o populat ed areas and required t he observance of specified “safet y margins,” i.e. set distances from civilians. The current dist ances set fort h for HE artillery were updat ed as part of t he “lessons-learned” process t he IDF conduct ed following t he 2008-2009 Gaza Conflict. The IDF det ermined t hese distances on the basis of research conduct ed by t echnical experts, focusing on t he accuracy of each art illery calibre and it s dispersal range.” 692 However, the fact that the shelling during Operation P rot ect ive Edge led t o many deat hs and injuries shows t hat t he safet y dist ance for art illery was insufficient t o ensure t he prot ect ion of civilians.

413 T he concerns linked t o the use of art illery in densely populat ed areas appear t o be shared by some in t he Israeli defence establishment. According to media reports t he former Chief Legal Adviser t o the Israel Defence Ministry wrote in 2008, t hat “Art illery fire can only be direct ed t o relatively open areas…Artillery fire t oward urban spaces is problemat ic if t he est imation is that the chances of a shell hitting a [rocket] launcher is relat ively small while t he danger of many civilians being hurt is real.” 693 414. Finally, t he commission observes t hat the way in which Operation “Protective Edge” was conduct ed was not modified aft er init ial episodes where art illery shelling result ed in significant civilian casualties.694 This seems to indicate that the manner of operat ing in t he incident s reviewed in t his sect ion may be in accordance wit h t he IDF’s current policies governing t he use of imprecise and/or inaccurat e weapons in densely populat ed areas, including t he safet y dist ance requirement .

415. Art icle 51(4) of Additional Protocol I, which reflect s cust omary in t ernat ional law, defines indiscriminate attacks as: “(a) t hose which are not direct ed at a specific milit ary object ive; (b) t hose which employ a method or means of combat which cannot be direct ed at a specific military objective; or (c) those which employ a method or means of combat the effect s of which cannot be limited as required by t his P rot ocol; and consequent ly, in each such case, are of a nat ure t o st rike milit ary object ives and civilians or civilian object s wit hout dist inction.” The large impact area of some of t he explosive weapons used by t he IDF during t he ground operat ions, including t he large air dropped bombs and 155mm shells; t he sheer volume of ordnance fired t owards areas of Gaza; and t he imprecise nat ure of art illery, including mortars; make it difficult for an attacking part y using t hose met hods and means in a densely populat ed and built up area t o dist inguish bet ween civilians and civilian object s and t he military objective of the attack, and thus t o limit the attack’s effects as required by int ernational humanit arian law. T herefore, t he use of weapons wit h wide area effect s by t he IDF in the densely populated, built up areas of Gaza, and the significant likelihood of lethal indiscriminate effects resulting from such weapons, are highly likely t o const it ut e a violat ion of t he prohibit ion of indiscriminat e at t acks. Depending on t he

692

693

694

Israel, M inistry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, p.

23at: http://mfa.gov.il/ProtectiveEdge/Documents/IDFConduct.pdf , accessed 30 M ay 2015.

Cited in M itch Ginsburg, “Israel’s artillery corps torn between precision and power,” The Times of Israel, 12 October 2014 Decisions of the IDF M ilitary Advocate General regarding Exceptional Incidents during Operation 'Protective Edge' – Update No. 3 of 22 M arch 2015. At: http://www.law.idf.il/163-7183en/Patzar.aspx

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circumst ances, such use may qualify as a direct at t ack against civilians, 695 and may t herefore amount t o a war crime. 696 Destruction 416. T he number and t ypes of weapons used in Shuja’iya, Rafah and Khuza’a result ed in significant dest ruction in those areas where fight ing t ook place, as described in t he above sect ions. In addit ion, UNITAR-UNOSAT, on the basis of an analysis of sat ellit e imagery, observed t hat some areas were virtually “razed”: “Concent rat ions of damage in t he Gaza St rip are found along t he Green Line wit h Israel where building demolit ion was widely apparent in the analysed sat ellite imagery. Specifically, 74% of all damaged and dest royed buildings, as well as crat ers, identified by UNOSAT analysts were found wit hin 3 km of the Green Line. Analysis indicates t hat multiple districts wit hin this area, such as Shejaiya and Beit Hanoun, were almost completely razed wit h the vast majority of struct ures complet ely demolished.”697 UNIT AR-UNOSAT also compared t he damage result ing from t he escalat ions of 2009 and 2014, and found an increase of 273 per cent in dest royed and severely damaged st ruct ures698 . P art s of Khuza’a also appear t o have been complet ely oblit erated. T est imonies of IDF soldiers collect ed by an NGO illust rat e t he dest ruct ion: “I got the impression that every house we passed on our way [into the Gaza Strip] got hit by a shell – and houses farther away too. It was methodical.” 699 “The tanks are already positioned somewhere, and they are starting to pound away at anything you might need to walk across, or anything in which they think some [enemy] might be. Just blasting things away.”700 417. Breaking t he Silence concluded: “In practice, for many combat forces, t he damage t o P alestinian property was not a considerat ion when det ermining t he scope and force of fire.”701 418. T he IDF has argued t hat t he high number of buildings dest royed in Operat ion “P rotective Edge” result ed from t he targeting of terrorist infrastructure and intense fight ing on t he ground. However, t he evidence gat hered by t he commission, including t he assessment of t he episodes above, video and phot o mat erials, observat ions by UNIT ARUNOSAT and anecdot al t est imonies by IDF soldiers, indicat e t hat t he vast scale of dest ruct ion may have been adopt ed as t actics of war. While the prot ect ion of IDF soldiers and t he dest ruction of tunnels may have played a legit imat e role in t his, nonet heless t he concent ration of the destruction in areas close t o t he Green Line (which, in some places,

695

696 697

698

699

700

701

110

International Criminal Tribunal for the former Yugoslavia, Prosecutor v.Galic, case No. IT-98-29-T, Judgement, 5 December 2003, para. 57.

Rome Statue, article 8 UNITAR-UNOSAT: Impact of the 2014 Conflict in the Gaza Strip. UNOSAT Satellite Derived Geospatial Analysis; 2014; p. 8; at: https://unosat.web.cern.ch/unosat/unitar/publications/UNOSAT_GAZA_REPORT_OCT2014_WEB. pdf UNITAR-UNOSAT: Impact of the 2014 Conflict in the Gaza Strip. UNOSAT Satellite Derived Geospatial Analysis; 2014; p. 23; at: https://unosat.web.cern.ch/unosat/unitar/publications/UNOSAT_GAZA_REPORT_OCT2014_WEB. pdf Breaking the Silence. This is how we fought in Gaza; testimony 14, p. 47; at: http://www.breakingthesilence.org.il/testimonies/database/?tzuk=1 Breaking the Silence. This is how we fought in Gaza; testimony 40, p. 105; at: http://www.breakingthesilence.org.il/testimonies/database/?tzuk=1 Breaking the Silence. This is how we fought in Gaza; testimony 6, p. 19; at: http://www.breakingthesilence.org.il/testimonies/database/?tzuk=1

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amount ed t o up t o 100 per cent); and t he systematic way in which it appears t o have been implemented subsequent ly in Beit Hanoun on 18-19 July, Shuja’iya on 20 and 21 July, and Khuza’a bet ween 20 July and 1 August suggest t hat t he IDF followed a pre-calculat ed pat t ern of wide-spread razing of neighbourhoods in cert ain areas.

419. Art icle 23 of the 1907 Hague Regulat ions 702 prohibit s t he dest ruct ion of propert y unless such dest ruct ion is required by imperat ive military necessity. A similar provision in Geneva Convent ion IV prohibit s an occupying power from dest roying privat e or public propert y. 703 The ext ensive dest ruct ion carried out by t he IDF in Shuja’iya, Khuza’a and ot her localities situated in proximity t o t he Green Line, in part icular t he razing of ent ire areas of t hese localities by art illery fire, air st rikes and bulldozers indicat es t hat t he IDF carried out dest ruct ions t hat may not have been st rict ly required by milit ary necessit y.

Art icle 147 of the Geneva Convent ion IV qualifies t he ext ensive dest ruct ion of propert y “not just ified by milit ary necessit y and carried out unlawfully and want only” as a grave breach of t he Geneva Conventions. The wholesale levelling of certain areas of Gaza by t he IDF, should it qualify as “unlawful” and ”want on”, may amount t o a war crime.

Targeting of civilians 420. T he present chapt er describes a number of cases in which civilians, who were clearly not participating in the hostilities, appear t o have been at t acked in t he st reet . T he commission examined t wo incident s, in which civilians, including children, allegedly carrying whit e flags were fired upon by soldiers in Khuza’a. In one case, a large group of people at tempting t o leave the village while holding whit e flags was at t acked in front of a clinic. In anot her case, a man inside a house who carried a whit e flag and had his ot her hand raised t o demonst rate the absence of a weapon was shot and killed in front of a group of approximat ely 30 people who had sought shelt er in t hat house, among t hem many women, children and elderly. In a t hird incident , in Shuja’iya, a wounded man, Salem Shamaly, lying on t he ground was shot again t wo times and killed. In all of these cases, t he persons or groups of people targeted, according t o information gathered by t he commission, were civilians who were not directly part icipat ing in t he host ilit ies and did not represent any t hreat t o t he IDF soldiers present in t he area. Direct ing at t acks against civilians const it utes a violation of the principle of dist inction and may amount to a war crime. These act s may also constitute wilful killings, defined in art icle 147 of Geneva Convent ion IV. T hese act s also likely amount to an arbitrary deprivation of life in violat ion of art i cle 6 of t he Int ernat ional Covenant on civil and P olit ical Right s.

4.

Incidents relating to shelters, the power plant and ambulances

a.

Shelters 421. Owing t o t he insecurity result ing from airst rikes and ground operat ions t hroughout t he Gaza St rip and following IDF inst ructions t o evacuate, about 300 000 people moved t o 85 UNRWA schools serving as Designat ed Emergency Shelt ers (DES) during Operat ion P rotective Edge. According t o reports reviewed by t he commission, shelt ers were at t acked seven t imes. The commission examined t hree incidents: the Beit Hanoun Co-educat ional A and D School (Beit Hanoun School) and Jabalia Elementary Girls A and B School (Jabalia School), which were direct ly hit, while in the case of the Rafah Preparatory Boys A School (Rafah School), a t arget next t o it was st ruck by a precision guided missile. All t he incident s result ed in deat hs in t he shelt ers – in t ot al bet ween 44 and 47 people died,

702

703

Hague Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Convention IV of 1907.

Article 53, Geneva Convention IV of 1949.

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including 14 children and 4 women. T he number of people injured in t hese incident s has not been firmly est ablished, but amount s t o at least 200. T he commission int erviewed several eyewit nesses t o t he incident s and reviewed affidavit s from wit nesses, sat ellit e imagery and phot os of the sites. The commission also received submissions, including from UN agencies, and reviewed publicly available information, in particular the summary report issued by t he Board of Inquiry est ablished by t he UN Secret ary -General t o look int o t he incident s t hat affect ed UN facilit ies, wit h which inquiry t he Government of Israel cooperat ed704 .

422. T he commission also received information about damage t o other UNRWA schools.

On 21 July at approximat ely 4.50 p.m., UNRWA’s P reparat ory Girls A/B School in Maghazi was hit by t hree shells, t wo of which exploded, injuring one person. Despit e coordinat ion wit h Israeli aut horit ies, t he school was st ruck again on 22 July at approximately 10.15 a.m.. The attacks seriously endangered t he life of t he UNRWA st aff members who had ret urned t o the premises t o investigat e. On 23 July 2014 , Deir al Balah P reparatory Girls School C was hit by a projectile, injuring one person. On 29 July, the roof of t he Zaitoun P reparat ory Girls School B was st ruck by a project ile above t he sout hern st airwell, injuring about t en people inside t he school.

UNRWA Beit Hanoun Elementary Co-educational A and D School 423. “It was the worst day in my entire life. I will never forget it…This was hell, not war... My young daughter did not deserve to die.” Father of a one -year old girl who died as a result of the attack on the school 705 424. UNRWA Beit Hanoun Element ary Co-educat ional A and D School, known as t he West ern school in the main urban center of Beit Hanoun, was wit hin t he ext ended “no -go zone” creat ed by Israel during Operation Protective Edge706. On 18 July, thousands of Beit Hanoun resident s had fled t heir homes and by 22 July, 4208 of t hem had sought shelt er in t he school.707 In order t o deliver humanit arian assist ance in t hat area UNRWA needed special aut horization from the IDF. 708 As access was not guaranteed, UNRWA was at times unable t o provide residents with food, wat er and ot her supplies for several days at a time. 709 As a result , a large number of people left t he school, 710 while ot hers resort ed t o bringing food and wat er from their homes or buying it outside t he school. 711 On 24 July, at t he t ime of t he at t ack, approximat ely 450 people were in t he school. 712 425. On 24 July 2014, bet ween 2.48 and 2.55 p.m. , 713 several Israeli art illery shells hit UNRWA’s Beit Hanoun school, killing bet ween 12 and 14 714 people, including children and women. At least 93 people were wounded715 , of whom 55 were reportedly children and 704 705 706 707 708 709 710

711 712

713 714 715

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W119.

S/2015/286, para. 26.

W246.

W030, see also S/2015/286, para. 28.

W246 and submission 5.11.

Human Rights Watch, Israel: In-Depth Look at Gaza School Attacks, 11 September 2014. At: http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks.

S/2015/286, para 28.

S/2015/286, para. 30. Human Rights Watch (HRW) reports between 300 and 700 people were sheltered. In: Israel: In-Depth Look at Gaza School Attacks. 11 September 2014. At http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks.

S/2015/286, para. 32.

S/2015/286, para. 32.

S/2015/286, para. 32.

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31 women. 716 T he UN Board of Inquiry reported t hat “at least two 120 MM high explosive (HE) mortar projectiles st ruck the school, one hit t ing t he middle of t h e schoolyard and a second t he st eps in front of the school’s entrance.” 717 Wit nesses said t hat while t hey were wait ing for t he buses in t he court yard t here was a st rike on t he school it self. T here was general panic aft er t he first st rike wit h people searchin g for t heir relat ives in t he court yard. 718 426. UNRWA was in regular cont act wit h Israeli aut horit ies, namely t he Israeli Coordinat ion and Liaison Administration (CLA) and Israel’s Coordinat or of Government Act ivities in the T errit ories (COGAT ), and had given t hem t he school’s coordinat es on t welve occasions. On the morning prior to the att ack, UNRWA reit erat ed t hat t he school was being used as a Designat ed Emergency Shelt er 719 .

427. Heavy fight ing bet ween the IDF and P alestinian armed groups was report ed in Beit Hanoun in t he days prior to 24 July, including daily shelling in t he vicinity of the school. 720 On July 23, as t he securit y situat ion deteriorated, the ICRC visited the school in an attempt t o evacuat e it , but only 50 resident s agreed t o leave. 721 T hat night t he shelling was so int ense t hat residents moved inside t he building. Eyewit nesses t old t he commission t hat on t he aft ernoon of July 24, represent at ives of t he municipalit y 722 came t o t he school t o coordinat e the evacuation of resident s aft er t hey persuaded t hem t hat t he school was no longer safe. Families st arted gat hering t heir belongings in t he court yard so as t o be ready when t he buses arrived. 723 The UN Board of Inquiry refers to a wit ness who indicat ed t hat t hat same morning, t he CLA had called upon U NRWA t o vacat e t he school because an at t ack was imminent. 724 Owing t o the security situation, UNRWA had asked t he IDF for a t ime slot during t he day during which t o conduct a safe evacuat ion. 725 T he fact t hat t he at t ack occurred before implement at ion of an evacuat ion agreement indicat es t hat t he advance warning communicat ed t o UNWRA by t he IDF was not effect ive.

428. On 24 July, UNRWA received a call from an IDF commander who inquired whet her anyone was present in the cluster of four other schools in Beit Hanoun, located about 800 m from t he Beit Hanoun Element ary Co-educat ional A and D School. He indicat ed t hat a Hamas arsenal hidden under t his clust er of schools was going t o be t arget ed. 726 UNRWA responded t hat they would check t o see if any residents or st aff were at t he ot her schools.

As t hey coordinated this inspection, Beit Hanoun A and D School was suddenly at tacked, 727 alt hough UNRWA had reconfirmed at least t wice wit h t he IDF t hat t he announcement

716

717

718 719

720 721 722 723 724 725 726 727

According to W246. Human Rights Watch reports 60 persons wounded. Israel: In-Depth Look at Gaza School Attacks. 11 September 2014. At: http://www.hrw.org/news/2014/09/11/israel-depthlook-gaza-school-attacks S/2015/286, para. 32. See also: Human Rights Watch, Israel: In-Depth Look at Gaza School Attacks, 11 September 2014. At: http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks.

W119, W095, W108. Similar scene described by HRW. Statement by UNRWA Commissioner General Pierre Krähenbühl, 24 July 2014. At http://www.unrwa.org/newsroom/official-statements/statement-unrwa-commissioner-general-pierrekr%C3%A4henb%C3%BChl. S/2015/286, para. 27.

S/2015/286, para. 29.

W246; see also S/2015/286, para. 231 W030.

See also S/2015/286, para. 27.

W030.

S/2015/286, para. 31. Also W030.

W030.

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about an imminent at t ack on schools in Beit Hanoun did not r efer t o t he UNRWA Beit Hanoun Element ary Co-educat ional A and D School, which served as a shelt er 728 .

429. T he wit nesses int erviewed by t he commission said t hat t hey were not aware of rocket s being fired from the elementary school or of militants operat ing in t he vicinit y. 729 UNRWA reported t hat the school guards, who monitored movements inside and out side of t he school gat e, had seen no suspicious act ivit y in t he area. Wit nesses furt her t old t he commission t hat they were not aware of any at t empt s by Hamas t o prevent people from leaving t he element ary school, cont rary t o allegat ions by t he IDF. 730 430. T he media reported that Israel init ially alleged t hat t he at t acks had been caused by Hamas rocket s misfiring. 731 However, all wit nesses int erviewed by t he commission said t hat there were at least four successive st rikes. Subsequent ly, an IDF spokesperson said t hat soldiers ret urned fire at locations from which Palest inian missiles had been fired at t hem.

On t he day of t he at t ack, t he IDF post ed t his comment on it s blog: “In recent days, Hamas has fired rockets from an area of Beit Hanoun where an UNRWA shelter is located. Last night, the Israel Defence Forces told the Red Cross to evacuate civilians from UNRWA’s shelter in Beit Hanoun between the hours of 10 a.m. and 2 p.m. today. UNRWA and the Red Cross received the message. Hamas prevented civilians from evacuating the area during the window that the IDF gave them. Today, July 24, Hamas continued firing from Beit Hanoun. The IDF responded by targeting the source of the fire”.732 431. According t o t he UN Board of Inquiry, the Government of Israel has affirmed t hat t he UNWRA school was not t he object of t he at t ack . 733 On 7 December, t he MAG announced t hat it had ordered a criminal invest igat ion int o t his incident . 734 432. Human Right s Wat ch reported that the Beit Hanoun secondary school for boys was used during t he host ilit ies by t he IDF for milit ary purposes. 735 UNRWA Jabalia Elementary Girls A and B School 433. “There is nowhere to be safe in Gaza. We thought that the school would be a safe place for me and my family. This was not the case. There is no way for me to get justice, I lost my husband and now I am dependent on my parents’ good will, who have limited

728 729 730

731

732

733 734

735

114

S/2015/286, para. 31.

S/2015/286, para. 27.

W030; see also: Human Rights Watch Israel: In-Depth Look at Gaza School Attacks, 11 September 2014. At http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks The Guardian, Israeli strike on Gaza school kills 15 and leaves 200 wounded, 27 July 2014. At http://www.theguardian.com/world/2014/jul/24/israeli-strike-un-school-gaza-kills-women-children see also , Buzz feed news, What Really Happened When An Explosion Hit A U.N. School In Gaza, 28 July 2014. At http://www.buzzfeed.com/sheerafrenkel/what-really-happened-when-an-explosionhit-a-un-school-in-ga#1mqx2qn. See also Human Rights Watch, Israel: In-Depth Look at Gaza School Attacks, 11 September 2014. At: http://www.hrw.org/news/2014/09/11/israel-depth-lookgaza-school-attacks Israel Defence Forces, Hamas Fires from Populated Area, Prevents Civilian Evacuation, 24 July 2014. At http://www.idfblog.com/blog/2014/07/24/hamas/ 32 S/2015/286, para. 33.

Decisions of the IDF M ilitary Advocate General regarding Exceptional Incidents that Occurred during Operation 'Protective Edge' – Update No. 2. 7 December 2014. At http://www.law.idf.il/1636958-en/Patzar.aspx.

Human Rights Watch, Israel, In-Depth Look at Gaza School Attacks, 11 September 2014. At: http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks.

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means.” Woman at Jabalia School who lost her husband and whose children were injured. 736 434. UNRWA’s Jabalia Element ary Girls A and B School, also known as t he Abu Hussain School for girls, is located in the centre of Jabalia Refugee Camp. When it opened as a Designat ed Emergency Shelt er (DES) on 16 July 2014, it was included in not ificat ions t o t he Israeli CLA and COGAT. Prior to 30 July, Israeli agencies were notified 28 t imes in 14 days about t he sit e’s use as an UNRWA shelter, the last time on 29 July at 8.48 p.m. 737 UNRWA report ed receiving confirmat ion of t he CLA’ s receipt of several of t he not ifications. In addit ion, UNWRA was in cont act wit h t he Israeli agencies by email and t elephone.738 On 30 July at 4.45 a.m., according t o t he UN Board of Inquiry, “t he school was hit by a barrage of four 155 MM high explosive (H E) project iles, an art illery indirect fire weapon.” 739 Bet ween 17 and 18 people were killed; 740 17 of t hese were int ernally displaced persons regist ered wit h the DES. Amongst t hose killed were 3 children. One of t he vict ims was an UNRWA staff member. The UN Board of Inquiry stated t hat at least 99 people were injured and t hat t he school was significant ly damaged. 741 435. At t he time of t he attack, the school sheltered about 3000 people from northern Gaza who had fled t heir homes following t he shelling in t heir neighbourhoods and/or as a result of leaflet s dropped by t he IDF inst ruct ing resident s t o leave t he area. 742 As a result , t he Jabalia School was overcrowded wit h an est imat ed 50 families st aying in each classroom. 743 436. At least one project ile landed out side t he school premises, followed by several explosive projectiles which landed inside t he school (with at least three direct impact s) and damaged several part s of the building. 744 This was confirmed by eyewit nesses int erviewed by t he commission who were t aking shelt er inside t he School. 745 Submissions, including pict ures and videos and publicly available mat erial, reinforce t hese findings. 746 437. T he commission was t old t hat t he area had been bombarded because on t he days prior t o t he incident , t he east ern part of t he Jabalia camp had been t he scene of armed

736 737

738

739 740

741 742 743

744 745 746

W058.

Statement by UNRWA Commissioner-General Pierre Krähenbühl, 30 July 2014. At http://www.unrwa.org/newsroom/official-statements/unrwa-strongly-condemns-israeli-shelling-itsschool-gaza-serious.

Statement by UNRWA Commissioner-General Pierre Krähenbühl, 30 July 2014. At http://www.unrwa.org/newsroom/official-statements/unrwa-strongly-condemns-israeli-shelling-itsschool-gaza-serious.

S/2015/286, para. 40.

Note that the UN Board of Inquiry reports 17 or 18 fatalities. S/2015/286, para. 40. Accounts on the exact number of victims and injured vary.

S/2015/286, para. 40.

S/2015/286, para. 37.

W054, W055, W056, W057, W058. See also submission 5.5 and 36. Witnesses complained about poor hygienic conditions in the school, lack of access to medical care (particularly pregnant women), lack of food, water and medicine.

S/2015/286, para 40.

W054, W055, W056, W057, W058.

Submission 49. See also Deadly Israeli shelling hits Gaza as peace talks continue, at http://www.dw.de/deadly -israeli-shelling-hits-gaza-as-peace-talks-continue/a-17821303. See also Temporary ceasefire allows UN to restock water, food, following another school attack, 4 August 2014. At http://www.un.org/apps/news/story.asp?NewsID=48405 and Photos: Israeli airstrike hits U.N. school. 31 July 2014. At http://america.aljazeera.com/multimedia/photo-gallery/2014/7/photosisraeli-airstrikehitsunschool.html

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clashes bet ween milit ants and t he IDF. 747 The IDF had also shelled homes in the vicinity of t he school in the weeks and days prior to the incident and, according t o the IDF, Hamas had fired at Israeli armed forces from t he vicinit y of t he school on 30 July. 748 However, t he wit nesses int erviewed by t he commission claimed t hat t hey had no knowledge about t he act ivity or the presence of armed groups inside or in the vicinity of t he school . 749 T he UN Board of Inquiry was t old t hat 29 July, t he day prior t o t he incident , t he vicinit y of t he school was calm. 750 On 31 July, an IDF spokeswoman was quot ed in t he media, assert ing t hat “militants fired mort ar shells at [Israeli] soldiers from t he vicinit y of t he UNRWA school in Jabaliya.”751 According t o wit nesses, t here was no advance warning of t he st rike. 752 This is consistent with the findings of the UN Board of Inquiry, which concluded t hat no warning had been given before t he at t ack. 753 438. T he MAG announced a criminal invest igat ion int o t he incident , st at ing t hat “ t he fact ual findings collated by t he FFA Mechanism and presented t o t he MAG, indicat ed t he exist ence of grounds for a reasonable suspicion t hat t he st rike was not carried out in accordance wit h t he rules and procedures applicable t o IDF forces.” 754 UNRWA Rafah Preparatory Boys A School 439. “UNRWA is a safe place, that’s why we sought shelter there…we were forced out from our homes… Enough bloodshed, why kill my children?” Khalid Ali Ismail Abu Harba, who lost his 14 year-old son during t he at t ack on Rafah School 755 440. On 3 August , bet ween 10.40 and 10.45 a.m. 756 , a precision-guided missile hit t he st reet in front of the UNRWA Rafah Preparatory Boys A School in t he densely po pulat ed cent re of Rafah, killing 15 people, 757 of whom at least 7 were children, some as young as t hree years old. One of the people killed was an UNRWA guard. 758 At least 25 people were

747 748

749 750 751

752 753 754

755 756 757 758

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S/2015/286, para. 39.

CNN transcripts of 30 July 2014; at http://transcripts.cnn.com/TRANSCRIPTS/1407/30/sitroom.01.html W054, W058 S/2015/286, para. 40.

Al Jazeera, Israeli fire kills nineteen in Gaza UN school, 31 July 2014, at http://www.aljazeera.com/news/middleeast/2014/07/gaza-un-school-hit-201473041918975321.html; see also: IDF spokesperson speaking to the BBC: Gaza school: 'Israel does not target UN facilities' says IDF. At http://www.bbc.com/news/world-middle-east-28564500 W055, W056 S/2015/286, para. 40.

Decisions of the IDF M ilitary Advocate General regarding Exceptional Incidents that Occurred during Operation 'Protective Edge' – Update No. 2, 12 July 2014, at http://www.mag.idf.il/261-6958en/Patzar.aspx.

W121.

S/2015/286, para. 43.

S/2015/286, para. 43.

S/2015/286, para. 43. Al M ezan reported that 14 people were killed, 12 in the school and 2 on the motorcycle, and that 25 people were injured. M eeting with Al M ezan on 9 February 2015. OHCHR reports 12 killed, including 8 children. A/HRC/28/80/Add.1, however, at least two children succumbed to their injuries after having been transferred to the hospital according to reports. See submission 5.12.

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injured. 759 Approximately 2700-2900 people displaced by t he conflict were sheltering at the school at t he t ime of t he at t ack. 760 441. Rafah School was included in not ifications to the CLA and COGAT from the time it opened as a shelt er on 18 July 2014. In total, UNRWA provided at least 33 notificat ions t o t he relevant Israeli agencies listing the school in Rafah as a shelter over a 17-day span, with t he last mention of its special status as an UNWRA shelt er having been communicat ed on t he morning of t he incident . 761 442. T he missile appears t o have hit t he ground 5 met res from t he sch ool gat e.

Eyewit nesses t old t he commission that children were outside t he school, near the front gate, buying sweet s from st reet vendors when there was an explosion on the pavement across t he st reet , about 5 t o 6 met ers from t he school gat e. 762 One wit ness int erviewed by t he commission lost his son and his nephew, bot h aged 15, who were hit in t he head by shrapnel and died soon aft er arriving at the hospital. 763 T he t wo boys were selling food t o t he people sheltering in t he school compound. 764 In addit ion, one of the wit ness’s brot hers, aged 30, suffered an injury to his neck from shrapnel and, as a result , is unable t o speak, while his ot her brother, aged 38, was hit in the spine by shrapnel and is now paralyzed from t he waist down. 765 Another wit ness who was inside t he school grounds, a few met ers away from t he gate and suffered minor injuries, described how he saw children’s bodies st rewn about and t orn int o pieces. 766 443. In relat ion to Rafah School, the Government of Israel told t he United Nat ions Board of Inquiry t hat “the IDF had fired an aerial-launched missile at t he mot orcycle, which had been carrying t hree militants from Palestinian Islamic Jihad. By the time it became apparent t hat the st rike would coincide wit h t he mot orcycle passing by t he school gat e, it had no longer been possible t o divert t he missile.” 767 T he Israeli aut horit ies announced t hat an examinat ion has been undert aken at t he request of t he MAG. 768 Weapons stored at UNRWA schools 444. T he UN Board of Inquiry report ed t hat weaponry was st ored in t hree UNRWA schools (Gaza Beach Elementary Co-educat ional “B” School, Jabalia Element ary “C” and Ayyobiya Boys School, and Nuseirat Preparatory Co-educat ional “B” School). 769 None of

759

760 761

762

763 764 765 766 767

768 769

S/2015/286, para. 43 and Human Rights Watch, Israel: In-Depth Look at Gaza School Attacks, 11 September 2014. At: http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks.

S/2015/286, para. 42.

Statement by UNRWA Commissioner, Pierre Krähnbühl, and Director of UNRWA operations in Gaza, Robert Turner. August 3 2014 at: http://www.unrwa.org/newsroom/official-statements/unrwacondemns-israeli-strike-next-unrwa-school-killing-civilians Human Rights Watch, Israel, In-Depth Look at Gaza School Attacks, 11 September 2014. At: http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks.

This appears to account for the disparities in numbers of fatalities reported.

Submission 5.12.

W121.

W103.

S/2015/286, para. 44; also, based on an inspection of the impact mark on the pavement, a hole in the concrete about 12 centimetres deep and 15 centimetres wide, Human Rights Watch concluded that the strike was most likely caused by a spike guided missile that produces fragments that reach up to 20 meters from impact. See: Israel: In-Depth Look at Gaza School Attacks. 11 September 2014. At http://www.hrw.org/news/2014/09/11/israel-depth-look-gaza-school-attacks S/2015/286, para. 44.

S/2015/286, paras 49-82.

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t hese schools was designat ed as a shelt er at t he t im e. T he UN Secret ary-General “was dismayed t hat Palestinian militant groups would put Unit ed Nations schools at risk by using t hem t o hide t heir arms. [… ] T he fact that they were used by t hose involved in the fight ing t o st ore their weaponry and, in two cases, probably t o fire from is unacceptable.” 770 The use of schools t o st ore weapons is discussed in more det ail in chapt er V.A.5.

Summary legal analysis 445. Imprecise weapons wit h a wide impact area were used in t wo incident s examined by t he commission: 120 mm high explosive (HE) mort ar project iles in t he case of t he Beit Hanoun school and a barrage of four 155 mm high explosive (HE) projectiles in the Jabalia school case. T he 2009 UN Board of Inquiry into similar incidents “found t hat, in firing 120 mm high explosive mortar rounds, the IDF had not maintained an adequat e safet y dist ance bet ween what ever its t arget point might have been and t he school,” and t hat t he “means of response t o an ident ified source of mort ar fire t hat would have carried t he least risk t o civilians and property, including t he UNRWA school, would have been a precisely t argeted missile st rike.” 771 In relation to the use of 155 mm, the 2009 Board concluded t hat, given all t he circumst ances, the firing by t he IDF of art illery wit h high explosives and project iles cont aining whit e phosphorous int o, over or in such close proximit y t o UNRWA headquart ers as t o cause injuries t o persons and very subst ant ial damage t o propert y was grossly negligent and amount ed t o recklessness.” 772 While in 2014, there are no allegations t hat t he IDF used whit e phosphorus, t he same conclusions regarding t he reckless use of art illery remain valid.

446. T he commission is thus of t he view t hat, when choosing a weapon wit h a wide-area effect s like artillery to strike a target located in a densely populat ed area – and adjacent t o UNWRA schools being used as shelt ers – t he IDF must have been aware t hat t here was a st rong likelihood t hat military objectives and civilian objects alike would be st ruck, raising serious concerns t hat t he choice of means for t he at t ack did not t ake int o account t he requirement to avoid, or at t he very least minimize, incident al loss of civilian life. T he commission notes that the rules on means and methods of attack do not proscribe t he use of specific weapons like mortars or artillery per se, but they do impose the requirement that in choosing t hese means of waging an at tack, the parties must consider the potential impact of such weapons on t he safet y of civilians. T he decision by t he IDF t o use mort ars in t his incident , rather than availing themselves of more precise weapons, indicat es t hat t he IDF did not t ake all feasible precautions to choose means with a view to avoiding or minimizing civilian casualt ies. 773 The use of such weapons in t he imm ediat e vicinit y of an UNRWA school shelt ering civilians is highly likely t o const it ut e an indiscriminat e at t ack which , depending on t he circumstances, may qualify as a direct attack against civilians, 774 and may t herefore amount t o a war crime 775 .

447. Int ernational humanitarian law contains an obligat ion to take all precautions that are feasible in order t o limit the effects that an attack ultimately has on the civilian populat ion.

While considerat ions relat ed t o force prot ect ion might limit t he ext ent of feasible precaut ions, such measures are still required. When taking precautionary measures, fact ors affect ing incidental loss or damage must be t aken into account, including t he proximit y t o 770 771 772 773 774

775

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S/2015/286 (Letter).

A/63/855–S/2009/250, paras 24 and 25.

A/63/855–S/2009/250, para 56.

Article 51(4) of Additional Protocol I, which reflects customary international law; See also International Criminal Tribunal for the former Yugoslavia, Prosecutor v.Galic, case No. IT98-29-T, Judgement, 5 December 2003, para. 57.

Rome Statue, article 8.

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t he t arget of protected objects. The principle of precaut ion further implies an obligat ion t o learn from previous experiences. During Operation “Cast Lead” in 2008/2009, an attack on t he vicinity of an UNRWA school in Jabalia led t o t he deat h of several civilians. In t hat cont ext, the 2009 Board of Inquiry concluded t hat “the IDF did not make sufficient effort s or t ake adequat e precaut ions t o fulfil t he responsibilit ies of t he Government of Israel t o prot ect United Nations personnel and civilians sheltering on Unit ed Nat ions premises and t o protect United Nations premises and propert y.” 776 Even t hough t he at t ack against t he UNRWA schools may not have been deliberat e, t he IDF is bound by t he obligat ion of precaut ionary measures and verification of targets “to avoid attacks direct ed by negligence at civilians or civilian object s”. 777 448. In t erms of warnings, while the Israeli aut horit ies was relying on t he Coordinat ion and Liaison Administ rat ion in order t o facilit at e communicat ion bet ween int ernat ional organizat ions and t he Israeli military, and while there seem to have been attempts to not ify UNRWA about possible at t acks in t he case of Beit Hanoun, t he incident suggest s t hat communicat ion bet ween UNRWA and t he IDF was not effective.778 No warning appears to have been issued before t he Jabalia incident. It therefore appears that the IDF may not have complied wit h its obligat ion to take all feasible precautions t o avoid or at least to minimize incident al damage t o civilian object s in t he at t acks on Beit Hanoun and Jabalia schools.

449. As t hese at tacks struck United Nations facilities, they also raise concern relat ing t o t he protection of United Nations premises from any form of int erference under t he 1946 Convent ion on t he P rivileges and Immunit ies of t he Unit ed Nat ions. However, t he commission will not examine t his issue in det ail as this body of law does not fall wit hin the purview of it s mandat e. b.

The Power Plant 450. T he Gaza St rip has only one power plant that normally supplies about 30 per cent of t he elect ricit y in t he st rip, wit h t he rest provided from Israel and E gypt . Under normal circumst ances, t he t hree sources cat er t o half of Gaza’s overall elect ricit y needs. 779 451. T he power plant was t he subject of several at t acks in July 2014 780 : 23 July 11 a.m.

T wo shells hit near t he administ rat ion building, 1 shell st r uck t he wat er t reat ment plant .

24 July

T he generator and t he conference room were dest royed when shells hit t he east side of t he complex.

28 July 7 p.m.

Shells st ruck close t o t he power st at ion cont rol room.

29 July 3 a.m.

T he power plant shut down when a sect ion of t he plant was complet ely dest royed.

452. As t he result of shelling on 29 July 2014, one of the plant’s fuel tanks exploded. The commission interviewed five witnesses to this at t ack and reviewed submissions and public report s. A wit ness explained t o the commission t hat t he civil defence force had not been

776 777 778 779

780

A/63/855–S/2009/250, para 27.

Sassòli and Quintin, 2014, op. cit., p. 88.

See also: S/2015/286.

OCHA: Gaza Crisis Appeal, 24 September 2014. At http://www.ochaopt.org/documents/gaza_crisis_appeal_9_september.pdf.

Human Rights Watch reports on a 5th attack. http://www.hrw.org/print/news/2014/08/10/gazawidespread-impact-power-plant-attack.

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able t o st op the fire spreading so t hat it eventually dest royed almost an entire section of t he plant and damaged ot her part s781 .

453. In May 2015, official Israeli sources indicat ed t hat on 2 9 July, “IDF tank shells unfortunately missed their intended target and hit fuel tanks serving Gaza’s power plant (but not the power plant itself). In this incident, IDF tank forces had legitimately directed an attack against several individuals who were believed to be carrying anti-tank rockets intended for immediate use.”782 While t he commission is unable t o verify t his account , it not es t hat t he plant had been hit three times in t he days prior t o 29 July. O n 9 July 2014, t hen Deput y Defence Minister Danny Danon called on his Government immediately t o cut off fuel and elect ricity supplies to the Gaza St rip. He added t hat Israel needed t o use all of t he levers of pressure t hat it had at it s disposal in order t o coerce Hamas t o accept a ceasefire. 783 This was also not the first time the power plant had been hit by t he IDF (e.g.

OCHA report ed t hat six t ransformers of t he power plant were dest royed in 2006 by an Israeli airst rike 784 and Israeli forces also hit t he power plant during 2008/09’s Operat ion “Cast Lead”785 ).

454. Owing t o t he limited evidence available to the commission, it is unable t o det ermine whet her t he power plant suffered incidental damage from an at t ack direct ed elsewhere, or whet her it was t he object of a deliberate attack. The commission not es t hat t he elect ricit y infrast ructure servicing t he civilian populat ion const it ut es a civilian object , 786 which is prot ected from attack unless it makes an effective cont ribut ion t o milit ary act ion, and it s dest ruct ion offers a definite military advantage. 787 These object s are also prot ect ed by t he cust omary law rule prohibiting parties to a conflict from attacking, destroying or rendering useless object s indispensable t o t he survival of t he civilian populat ion. 788 Deliberat e t arget ing of such object s would be in violat ion of this prohibition.789 The commission notes t hat the MAG referred t he power plant incident of 29 July 2014 t o t he IDF’s Fact -Finding Assessment Mission and it s findings have been provided t o the MAG. According t o official 781

782

783

784

785

786

787

788 789

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W068. See also: International Federation for Human Rights (FIDH): Trapped and Punished. The Gaza Civilian Population under Operation Protective Edge. M arch 2015 (from now on: FIDH report), page 50. At: https://www.fidh.org/IM G/pdf/report_gaza_fidh_march_2015.pdf; Israel, M inistry of Foreign Affairs , IDF Conduct During the 2014 Gaza Conflict, p. 28. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015 Jerusalem Post, Deputy defence minister demands Israel cut off fuel, electricity supply to Gaza, 9 July 2014. At http://www.jpost.com/breaking-news/deputy-defense-minister-demands-israel-cut-off-fuelelectricity-supply-to-gaza-362035; see also: M ajor-General Giora Eiland, the former head of Israel's National Security Council on 5 August 2014. At http://www.ynetnews.com/articles/0,7340,L4554583,00.html OCHA: The Humanitarian impact of Gaza’s Electricity and Fuel Crisis, M arch 2012. At http://www.ochaopt.org/documents/ocha_opt_electricity_factsheet_march_2012_english.pdf.

B’Tselem, Operation Cast Lead, 1 January 2011 and 28 September 2014, at http://www.btselem.org/gaza_strip/castlead_operation; FIDH report, p. 50.

A list of categories of military objective proposed by the ICRC only included plants producing electricity mainly for military consumption. List cited in, ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 2000, para. 39. Available at http://www.icty.org/sid/10052#IIIwork.

ICRC, Database Customary International Humanitarian law, rules 7 and 8. See also article 51(2) Additional Protocol I ICRC, Database Customary International Humanitarian law, rule 54.

The prohibition contained in IHL treaty law (article 54(2) of Additional Protocol I, and article 14 of Additional Protocol II) requires that the attack be for the specific purpose of denying them their sustenance value. However, most State practice with regards to this rule does not seem to require this purpose. See: ICRC, Customary International Humanitarian Law, Volume I: Rules, p. 190.

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Israeli sources, t he “MAG’s decision whet her t o order t he opening of a criminal invest igat ion int o t his incident is st ill pending.” 790 455. If t he st rike against the power plant was accident al, as Israel claims, t here remain nonet heless quest ions as to whether all appropriat e precaut ions were t aken by t he IDF t o avoid damage t o a civilian object. The IDF’s latest version of events concerning t he 29 July incident says t hat it targeted several individuals alleged t o be t ransport ing weapons in t he vicinit y of the plant. If that is the case, the choice of means needs t o be examined, namely whet her t ank shells were t he most appropriat e ammunit ion, and whet her ot her t ypes of ordnance, present ing fewer risks of incident al damage, could have been used inst ead. In addit ion, t he fact that the power plant had been st ruck several t imes in t he preceding days should have led t he IDF t o issue st ringent orders t o units operating near the power plant t o exercise rest raint, given the importance of the plant for the civilian population in Gaza. The IDF t herefore appears not t o have complied wit h it s obligat ion t o t ake all feasible precaut ions t o avoid or at least t o minimize incident al damage t o civilian object s in t he at t ack of 29 July t hat st ruck t he power plant . c.

Ambulances 456. “I hope you can help achieve justice for my colleague; I hope that you can persuade the Israelis to let us do our job without getting fired at.” Ambulance driver791 "The International Committee of the Red Cross (ICRC) firmly condemns this extremely alarming series of attacks against humanitarian workers, ambulances, and hospitals. These are serious violations of the law of war. An immediate stop must be put to them." 792 457. T hree incident s t hat occurred during t he ground operat ions in Shuja’iya, in Rafah and in Shuja’iya market are det ailed above (see chapt er V.A.3. on ground operat ions).

According t o wit nesses, a milit ary medical aid ambulance was direct ly hit t wice while at t empting t o provide first aid to victims in Shuja’iya, resulting in t wo people being killed, one of t hem a rescue worker, and t wo injured. T en days lat er, in Shuja’iya market , in a cont ext of intense fire, a shell struck t he ground close t o three ambulances in the proximit y of a house t hat had been at t acked. As a result of t he shelling, a paramedic and 22 ot her people were killed. In Rafah, on 1 August , eight people burned t o deat h in an ambulance t hat was hit .

458. In addit ion, t he commission examined an incident that t ook place on 25 July, aft er 11 p.m., in Al Qarara village, Khan Younis. T wo eyewit nesses and one wit ness t old t he commission t hat Mohammed Hassan Al Abadla an ambulance driver aged 26, came under fire while evacuat ing an injured person.793 According t o the witnesses, when the ambulance arrived at t he location, the IDF instructed the crew to exit the vehicle and continue on foot .

Mohammed Hassan Al Abadla and one of t wo volunt eers got out of t he ambulance and approached t he pat ient wit h a flashlight on, as direct ed. T hey had walked about t welve met res when t hey came under fire and Moham med Hassan Al Abadla was hit in t he chest and t high. Two ambulance teams that arrived a lit tle later to rescue their wounded colleague also came under fire, despit e earlier ICRC informat ion t hat t he IDF had approved t heir

790

791 792

793

Israel, M inistry of Foreign Affairs, IDF Conduct During the 2014 Gaza Conflict, p. 29. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015 W117.

ICRC, Gaza and West Bank: Reaching out to all victims amidst growing crisis, 27 July 2014. At: https://www.icrc.org/eng/resources/documents/update/2014/07-27-gaza-west-bank-israel-civiliansand-humanitarian-workers.htm.

W083, W101, W087.

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ent ry to the area. 794 A third t eam was finally allowed t o take Al Abadla t o Nasser hospit al in Khan Younis, where he died short ly upon arrival. 795 The ambulances’ movement s were at all t imes coordinated wit h the IDF through t he ICRC. 796 According t o t he wit nesses, all ambulances were marked wit h t he Palestinian Red Crescent Societ y (PRCS)’s emblem, and Mohammed Hassan Al Abadla and his colleagues were wearing uniforms 797 . The MAG has ordered a criminal invest igat ion int o t his case 798 , t he out come of which is pending. 799 459. T he commission further interviewed several wit nesses t o an incident t hat occurred on 25 July, at around 4.15 p.m., when a missile appears t o have hit t he back of a P RCS ambulance during a rescue operat ion in Beit Hanoun. As a result , Aaed Al Borei, an ambulance volunt eer aged 29, was killed and t wo ot her rescuers inside t he ambulance were injured. 800 When anot her ambulance t eam was dispat ched t o respond, a missile hit t he rear part of this vehicle, which caught fire. T he ambulance had it s siren and flashing red light on and, at t he t ime of t he st rike, t he st reet was desert ed. 801 T he t wo survivors t old t he commission t hat the missile hit the vehicle wit h such force that it felt as if t he “explosion was inside t he ambulance”. They saw Aaed’s body t orn apart on the ground. 802 The back of t he ambulance was complet ely dest royed. 803 During an addit ional rescue operation, another ambulance apparent ly came under fire, wounding t he driver. Aaed’s burned body could only be ret rieved t he following day. 804 On 7 December, t he MAG announced t hat it had ordered a criminal invest igat ion int o t he incident . 805 460. In addit ion, in a number of inst ances, ambulances are report ed t o have been prevent ed from evacuating t he wounded from areas where t he IDF was operat ing (in Beit Hanoun, Khuza’a, Qarara, Shujai’ya and Beit Lahiya). According t o t he Palestinian Human Right s Coalit ion, 407 P alest inians died as a result of delays in t he delivery of medical aid. 806 Some of t hese incidents, which occurred in Khuza’a, are discussed above. On several occasions, t he authorizat ion for ambulances t o access sit es of milit ary operat ions where civilians were injured was delayed for days. T he commission received heart -breaking t est imony and report s of people who saw t heir injured children and family members die because ambulances arrived t oo lat e, somet imes hours or days aft er t he at t acks.

794 795

796 797 798

799

800

801 802 803 804 805

806

122

W083.

W083, W087, W101. See also WHO situation report 28 July. At http://www.emro.who.int/images/stories/palestine/documents/WHO_Sitrep_on_Gaza__5__July_28.pdf?ua=1 W083.

W083, W087, W101.

IDF M AG Corps Website, Decisions of the IDF M ilitary Advocate General regarding Exceptional Incidents during Operation 'Protective Edge' – Update No. 3, 07 December 2014; at: http://www.law.idf.il/163-6958-en/Patzar.aspx?pos=13 COI interviewed two Palestinian Red Crescent Society (PRCS) ambulance workers, W087, W101, who went to Erez crossing to testify before Israeli investigators.

Name and age in PRCS update report at http://www.palestinercs.org/reports/14-07-27-10-4605English%20Ops%20update%209%20-%2027%20July.pdf According W180, W181.

W180, W181.

Submission 5.

W180, W181.

IDF M AG Corps Website, Decisions of the IDF M ilitary Advocate General regarding Exceptional Incidents during Operation 'Protective Edge' – Update No. 3, 07 December 2014; at: http://www.law.idf.il/163-6958-en/Patzar.aspx?pos=13.

Al-Haq: Divide and conquer. A legal analysis of Israel’s 2014 military offensive against the Gaza Strip. 2015, p. 50.

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461. T he commission notes the IDF’s general allegat ion t hat P alest inian armed groups used ambulances t o t ransport fighters, i.e. for military purposes. As no specific information was received in t his regard, the commission is unable t o verify this claim. In relation t o t he incident s highlight ed above, the commission did not find any informat ion, or re ceive any allegat ions indicating t hat the ambulances involved were used for a purpose ot her than their humanit arian function. Given the pivotal importance of ambulances and medical personnel in areas wit h a civilian presence where int ense shelling t akes pl ace, report s of repeat ed st rikes on ambulances t hat came to the rescue of injured st aff are of part icular concern , as t hey suggest t hat t he ambulances and personnel may have been specifically t arget ed.

462. T he commission observed t hat t he 2014 host ilit ies result ed in damage t o 16 ambulances, 807 t he deat h of 23 health personnel (16 of whom were on dut y), and injury t o least 83. 808 At least 24 st rikes809 involving ambulances and medical personnel were report ed. T he “Medical Aid for P alest inians” organizat ion rep ort ed t he loss of 30 ambulances following at t acks810 . Many, if not most, of the report ed st rikes on ambulances t hat resulted in casualt ies, and in some cases, deat hs appear to have occurred wit hout t here having been any obvious t hreat or military act ivit y in t he area. Furt hermore, ambulances were marked wit h emblems, health workers wore uniforms, and t he IDF had been not ified repeat edly of their movement s. In some incident s (Beit Hanoun and Khan Younis on 25 July and Rafah on 1 August ), medical personnel and ambulances appear to have been hit by direct and t arget ed fire, while in ot her cases t hey were likely vict ims of indiscriminat e shelling occurring in t he area at t he t ime.

463. T he commission notes that the MAG has ordered criminal investigat ions into two of t he cases discussed above and recommends t hat t he MAG invest igat ions pay part icular at t ent ion t o allegat ions relat ing t o healt h personnel and ambulances.

464. Ambulances and medical personnel enjoy special prot ect ion under int ernat ional humanit arian law. They are to be protected from attack under all circumstances. T hey only lose t his protection if they are used out side of t heir humanit arian funct ion t o commit act s harmful t o the enemy. 811 Some of the incidents above constitut e a violat ion by t he IDF of t he prohibition of attacks on medical transports and medical personnel, and may amount t o war crimes, in particular, if the vehicles or personnel attacked used t he dist inctive emblems of t he Geneva Convent ions. 812 465. In addit ion, t he many report ed incident s involving t he blocking or delaying of ambulances raise serious concern as t o the compliance by the IDF wit h t heir obligat ion t o respect medical transport. This obligat ion is not limited t o the prohibit ion against at t acking such vehicles t hemselves, but also includes t he obligation t o refrain from int erfering wit h t heir rescue work. As stated in the ICRC Commentary on article 21 of Geneva Convent ion IV, “T he enemy should avoid int erfering wit h t hem, but t hat is not enough; he must also allow t hem t o carry out t heir work.” Preventing or delaying ambulances may also constitute a violat ion of t he obligat ion t o collect and care for t he wounded and sick as provided by 807 808

809

810

811

812

OCHA, Gaza Initial Rapid Assessment Report, 27 August 2014.

World Health Organization, Report of a field assessment of health conditions in the occupied Palestinian Territory (oPt), 22 M arch to 1 April 2015. See also OCHA, Gaza Initial Rapid Assessment Report, 27 August 2014.

Al Haq: Divide and conquer. A legal analysis of Israel’s 2014 military offensive against the Gaza Strip. 2015, p. 50 Assessment mission of M AP/IDEALS medical team – East Jerusalem and Gaza. 9-14 August 2014, p. 11s Geneva Convention IV articles 20-21, Additional Protocol I articles 15 and 21, Additional Protocol II, articles 9 and 11. See also, ICRC, Customary International Law Database, rules 25 and 29.

Article 8 Rome Statute of the ICC.

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Common article 3 of the Geneva Conventions and t he prescript ion t hat t he wounded shall receive t o the fullest extent practicable and wit h t he least possible delay, t he medical care and at t ention required by t heir condition. 813 Delaying medical care may also amount t o a violat ion of t he right t o healt h and if it is confirmed t hat denial of acce ss or delays t o ambulances cont ribut ed t o t he deat h of sick and wounded persons, of t he right t o life.

5.

Impact on the population in Gaza of the conduct of Palestinian armed groups 466. T he commission of inquiry also examined t he conduct of P alest inian armed groups in a densely populat ed environment and what measures, if any, were undert aken by t he aut horities in Gaza t o protect civilians from t he effect s of at t acks conduct ed by t he IDF. 467. In t his context t he commission not es t he ext ensive allegat io ns made by Israel, in some cases in great det ail. 814 T he commission regret s t hat it was unable t o verify t hese individual allegat ions owing t o Israel’s denying t he commission access t o Gaza, and t o P alest inian witnesses’ fear of reprisals by armed groups and t he local aut horit ies if t hey provided informat ion, in part icular when doing so remot ely.

468. T hese obst acles t o obt aining first -hand informat ion were compounded by t he difficult ies P alest inian human right s organisat ions face in document ing violat ions by P alest inian armed groups. As st at ed by Amnest y Int ernat ional: “Palestinian human rights organizations faced huge difficulties documenting violations during the hostilities in Gaza, including cases where their researchers were killed or came under fire. Publishing information on violations by Palestinian armed groups can also be risky for local NGO’s, particularly during periods of intense fighting and bombardment by Israel; human rights organizations and individual staff members have been threatened or attacked by Palestinian armed groups in the past.” 815 469. Despit e t hese drawbacks, t he commission was able t o ident ify cert ain pat t erns of behaviour of P alest inian armed groups which may have had a negat ive impact on t he prot ect ion of t he civilian populat ion and of civilian object s in Gaza.

Conducting military operations from within or near densely populated areas 470. T he commission examined various sources of information related t o t he conduct of P alest inian armed groups in populated areas of Gaza, including t he stockpiling of weapons and t he firing of rockets, mort ars and ot her weapons from very densely built up areas of Gaza cit y.

471. Several report s by foreign journalist s indicat ed t hat rocket s were repeat edly fired from downt own Gaza. In a France24 video of 31 st July it is possible t o see and hear t he launch of a rocket in close proximity to the journalist while he was broadcast ing live. 816 A follow-up news report by France24 indicated that the rocket launcher was locat ed only 50 met ers away from a hot el in which journalist s were st aying and 100 met ers from a UN

813

814

815

816

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Article 10 Additional Protocol I. See also articles 16 Geneva Convention IV and articles 7 and 8 Additional Protocol II. See for example: Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx.

Amnesty International, Unlawful and deadly: Rocket and Mortar Attacks by Palestinian Armed Groups during the 2014 Gaza/Israel Conflict, M arch 2015, p.41 Rocket fire caught live as France 24 correspondent reports from Gaza Strip, 49 seconds into https://www.youtube.com/watch?v=EaqWqjb4w6s

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building. 817 In anot her incident, a NDTV foreign press crew filmed men who appear t o be preparing a rocket launcher in an area report edly surrounded by apart ment buildings, and t hey recorded t he launch of a rocket t he following morning. 818 According t o Amnest y Int ernational, in one incident a home in t he al-Karama neighbourhood was hit by an IDF st rike immediately after two rockets had been fired by P alest inian armed groups from t he vicinit y of t he house. 819 472. P alest inian armed groups are alleged t o have frequent ly placed command and cont rol centres and firing positions in residential buildings, and t o have stockpiled weapons, placed booby-t raps and locat ed t unnel ent rances in prima facie civilian buildings. In part icular, the commission notes the IDF assert s it found an Al-Qassam Brigades manual on urban warfare, which is said t o explain the advantage of conduct ing milit ary operat ions in populat ed areas and allegedly provides inst ruct ions on how t o hide weapons in buildings. In a let t er to Hamas, the commission request ed information on the existence of such a manual and whet her a copy could be made available t o t he commission. T he commission did not receive a response. T he IDF only present ed a few select ed pages of t he manual on t heir websit e. 820 T he commission was not able independent ly to verify the content of t his manual or specific incident s.

473. Int ernational humanitarian law prescribes t hat parties to the conflict should t ake all feasible precaut ions t o prot ect t he civilian populat ion and civilian object s under t heir cont rol from t he effect s of at t acks and t o t he maximum ext ent feasible avoid locat ing milit ary objectives wit hin or near densely populat ed areas. 821 T he commission not es t hat t his obligat ion is not absolut e and t hat even if there are areas that are not residential, Gaza’s small size and it s populat ion density makes it particularly difficult for armed groups always t o comply with these requirements. The ICRC Commentary on Addit ional Protocol I not es t hat several delegat ions of t he Diplomat ic Conference comment ed t hat for densely populat ed count ries, the requirement to avoid locat ing milit ary object ives wit hin densely populat ed areas would be difficult t o apply. 822 474. P nina Sharvit-Baruch, a researcher at the Institut e for National Securit y St udies, and former Head of the International Law Department of t he IDF Milit ary Advocat e General, explained in a conference at t he Universit y of Haifa:

“In a scenario like the Gaza Strip you cannot expect the other side or demand the other side to act only from empty areas, to go out of all the populated areas, fire only from there or from the beach area when no people are there, it’s not something that is expected.

Therefore to say that the fact that they are operating from populated areas, in itself is a war crime or is in breach of the law of armed conflict, is not a plausible argument[….] The 817

818 819

820

821

822

http://www.france24.com/en/20140805-exclusive-video-hamas-rocket-launching-pad-near-gazahomes-un-building/ http://www.ndtv.com/world-news/ndtv-exclusive-how-hamas-assembles-and-fires-rockets-641680 Amnesty International, Unlawful and deadly: Rocket and Mortar Attacks by Palestinian Armed Groups during the 2014 Gaza/Israel Conflict, M arch 2015, p.41 Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, pp.17, 40 -41 and 46-47. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015. See also Gaza Conflict Task Force commissioned by the Jewish Institute for National Security Affairs (JINSA), 2014 Gaza War Assessment: The New Face of Conflict, Report of M arch 2015, p. 20 These customary rules (see ICRC, Database on Customary international humanitarian law, Rules 22 and 23) are reflected in article 58 of Additional Protocol I. Article 13 of Additional Protocol II expresses the principle that the “civilian population shall enjoy general protection against the dangers arising from military operations.”

ICRC, Commentary on the Additional Protocols of 8 June 1977, para. 2256

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point is the fact that in this densely populated area the focus was on acting from places where the maximum civilians would be harmed. Not just from a populated area, but from a school, from a hospital, from a mosque when people are there, or telling people not to leave or not enabling people to leave, there is the gist of it [….]that is the challenge that we

had to face.” 823 475. As ment ioned by Ms. Sharvit -Baruch, in a number of inst ances, P alest inian armed groups appear t o have conduct ed military operations wit hin or in close proximit y t o sit es benefit ing from special protection under international humanitarian law, such as hospit als, shelt ers and places dedicat ed t o religion and educat ion. 824 T he Unit ed Nat ions Board of Inquiry int o specific incidents t hat occurred in t he Gaza St rip bet ween 8 July and 26 August 2014 found t hat in some cases Palestinian armed groups conduct ed milit ary operat ions in t he vicinity of UNRWA schools. In one case, it noted military activity by bot h P alest inian armed groups and t he IDF in t he vicinity of Beit Hanoun Element ary Co -educat ional “A” and “B” school, which was being used as an UNRWA designat ed emergency shelt er. 825 In t he case of t he Jabaliya Elementary “C” and Ayyobiya Boys School, an area adjacent to the school was report edly used by P alest inian armed groups t o fire projectiles. 826 In the case of t he Nuseirat Preparatory School Co-educat ional “B” School, the “presence of weapons and ot her evidence” indicates that Palest inian armed groups may have fired 120 mm mort ars from t he premises of t he school. 827 In anot her case, media report s quot ed t he Greek Ort hodox Archbishop in Gaza as st ating t hat the church compound, in which approximately 2,000 civilians t ook refuge, was used by P alest inian armed groups t o fire rocket s. 828 476. Official Israeli sources also made allegat ions of specific incident s during which project iles were fired from within or in the immediate vicinit y of scho ols and mosques. 829 In addit ion, allegations were made t o the effect t hat such locat ions were used t o st ockpile weapons and t hat t unnels led int o or near t hese locat ions. 830 477. Medical facilit ies were also alleged t o have been used by P alest inian armed groups t o carry out military activities. The Israeli government’s documentat ion det ails eight cases of projectiles being fired from t he immediat e vicinit y of or from wit hin t he pre mises of

823

824 825

826 827 828

829

830

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Pnina Sharvit-Baruch, speaking at the Conference: The Israeli Democracy in War: Is the ‘Edge’ Protected?, First Session: Legality of M ilitary Activities during Operation “Protective Edge” According to International Law, 5 November 2014. Video recording available at: https://www.youtube.com/watch?v=Rqz3nQhoOlY&list=PLtX8ZCcAVap2SqfEEUBBsW0LPWs6W90M &index=1, minute 55:20. Accessed on 30 M ay 2015.

ICRC, Database on Customary international humanitarian law, Rules 28, 29, 35 and 38 S/2015/286, United Nations Secretary-General, Summary by the Secretary-General of the report of the United Nations Headquarters Board of Inquiry Into certain incidents that occurred in the Gaza Strip between 8 July 2014 and 26 August 2014, para. 35 Ibid, para. 65 Ibid, paras 80 to 82.

CBN News, Gaza Bishop: Hamas Used Church to Fire Rockets. Avaialble at: http://www.cbn.com/cbnnews/insideisrael/2014/august/gaza-bishop-hamas-used-church-to-firerockets-/ Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, pp. 29-38. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed 30 M ay 2015 Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, pp.20-25, 29-32 and 35-38. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx. Accessed 30 M ay 2015

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medical facilit ies. 831 In one case, it is alleged t hat a booby t rap in a clinic exploded, result ing in t he deat h of three soldiers and injury to 14.832 The commission was not able t o independent ly verify t hese specific allegat ions. T he commission also not es t he claims concerning t he apparent extensive use of Al-Wafa hospital and it s surroundings t o conduct milit ary operat ions. 833 All relevant wit nesses int erviewed by t he commission, including medical st aff, rejected t he allegat ion that the hospital was being used for milit ary purposes before it s evacuat ion. However, the commission cannot exclude t he possibility that military act ivity took place within or around t he hospit al following it s evacuat ion on 17 July 2014.

Furthermore, several allegations 834 were made concerning the alleged use by Palestinian armed groups of ambulances to conduct military operations. However, only one specific allegation was provided in the documentation available from Israel and this lacked a date or location for the incident.835 The commission has received no additional allegations concerning the improper use of ambulances.

478. Given the number of cases in which Palestinian armed groups are alleged to have carried out military operations within or in the immediate vicinity of civ ilian objects and specifically protected objects, it does not appear that this behaviour was simply a consequence of the normal course of military operations. Therefore the obligation to avoid to the maximum extent possible locating military objectives within densely populated areas was not always complied with.

479. Regarding the specific incidents, while the commission cannot determine the factual circumstances of each alleged incident, if it is confirmed that in using the aforementioned locations to conduct military operations, armed groups did so with the intent to use the presence of civilians or persons hors de combat in locations such as shelters or hospitals to prevent their military assets from being attacked, this would constitute a violation of t he customary law prohibition to use human shields, reflected in article 51(7) of Additional Protocol I. Should this intent be proven, this conduct would amount to a war crime. 836 480. In addition, with regard to the alleged use of medical facilities and amb ulances for military purposes, if the buildings or ambulances bore any distinctive emblem of the Geneva Conventions, such as the Red Crescent, this would amount to an improper use of a distinctive emblem and may, depending on the circumstances, amount to a war crime.837 Article 7 of Protocol II to the Convention prohibiting Certain Conventional Weapons, 838 which reflects customary international law,839 prohibits attaching or associating a boobytrap with an object entitled to special protection. Therefore the boo by-trapping of a medical clinic would constitute a violation of international humanitarian law.

831

832

833 834

835 836 837

838 839

Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, pp. 22-23. Available at http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015 Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law, pp. 47-48. Available at http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 30 M ay 2015.

Ibid, pp.20-21 Ibid, p. 20, see also: https://www.idfblog.com/blog/2014/07/28/hamas-uses-hospitals-ambulancesmilitary-purposes/ Ibid, p. 22.

Article 8 Rome Statute of the ICC Article 8(2)(b)(vii). In certain circumstances the death or serious injury would have to result from a treacherous act linked to the improper use of the emblem in order to amount to a war crime.

Protocol II to the 1980 CCW Convention as amended on 3 M ay 1996 ICRC, Database on Customary international humanitarian law, Rule 80.

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Measures to facilitate the removal of the civilian population from the vicinity of military objectives 481. During t he host ilit ies t he aut horit ies in Gaza adopt ed some measures t o assist civilians fleeing t he areas most affect ed by t he host ilit ies, such as set t ing up shelt ers for int ernally displaced persons.840 The aut horities in Gaza also informed t he commission that a policy of evacuat ion was implement ed in Beit Hanoun, Shuja’iya and Khuza’a when t ensions mount ed in t hose areas, and t hat more t han 4,450 evacuat ion missions were conduct ed by t he P alest inian civil defence.

482. However, t he commission is concerned t hat in the days prior to t he st art of t he IDF ground operat ions, different representatives of the authorit ies in Gaza made several public declarat ions request ing Gaza resident s not t o heed t he warnings issued by t he IDF inst ruct ing resident s of different neighbourhoods and t owns t o evacuate. For instance on 16 July, Hamas spokesperson Mushir al-Masri stated, “Palestinian civilians are st anding up t o t he enemy wit h their steadfastness, resilience and belief t hat Allah will reward t hem, […]

Rest assured, st ay put at home as you’ve always done, do not respond t o rumours and t his psychological war being waged by t he Zionist enemy. It ’s t heir desperat e and wret ched at t empt t o fragment t he P alest inian domest ic front . We are sure of our people’s st eadfast ness.”841 On 13 July 2014, a journalist from Al Aqsa T V report ed t hat “..t he int erior ministry also urged cit izens not t o obey t he Occupat ion’s warnings cont ained in leaflet s calling on people of t he Gaza border area t o evacuat e t heir homes. T he int erior minist ry called upon people to ignore these warnings and t o stay put.”842 On 15 July 2014, Mo'een Abu Okal, head of t he popular commit t ee for refugees, called upon cit izens who had t aken refuge at UNRWA premises t o ret urn home. He st ressed t hat “t he resist ance” cont inues t o confront and foil any incursion at t empt s. 843 While t he commission cannot conclude t hat in making t hese declarations the authorities in Gaza had t he specific intent t o use t he presence of civilians t o prot ect P alest inian armed groups from at t ack, t he declarat ions are a clear indication that the aut horities in Gaza did not take all t he necessary precaut ions t o protect the civilian population under its control as required by int ernat ional humanit arian law. 844 483. In one case of t he bombing of a resident ial building examined by t he commission, information gat hered indicates that following a specific warning by t he IDF t hat t he house was t o be t arget ed, several people went to the roof of t he house in order t o “prot ect ” t he house. Should t hey have been direct ed to do so by members of P alest inian armed groups, t his would amount t o the use of the presence of civilians in an attempt t o shield a milit ary object ive from attack, in violation of the cust omary law prohibit ion t o use human shields.

Wit h regard t o t his incident , t he commission is dist urbed by t he report ed call by t he spokesperson of Hamas to the people in Gaza to adopt the practice of shielding t heir homes from at tack by going up on t heir roofs. Although t he call is directed to residents of Gaza, it can be seen and underst ood as an encouragement t o Palestinian armed groups t o use human shields.

840

841 842

843

844

128

For example the OCHA on 13 August, mentions the existence of 27 government shelters hosting close to 30,000 internally displaced persons , Gaza Emergency Situation report 13 August 2014, p. 2.

Available at http://www.ochaopt.org/documents/ocha_opt_sitrep_13_08_2014.pdf https://www.youtube.com/watch?v=ks_nlgjfPWM http://mfa.gov.il/M FA/ForeignPolicy/Issues/Pages/Israel-protection-and-Hamas-exploitation-ofcivilians-in-Operation-Protective-Edge-July-2014.aspx Al Resala Press. Abu Okal: We call upon UNRWA refugees to return home, 15 July 2014 at: http://alresalah.ps/ar/post/97511/‫أبو‬-‫عوكل‬-‫ندعو‬-‫الجئي‬-‫األونروا‬-‫للعودة‬-‫لمنازلهم‬ Article 58, Additional Protocol I. ICRC, Database on Customary international humanitarian law, Rule 22.

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Rockets landing short 484. Rocket s fired by P alest inian armed groups in several cases appear t o have malfunct ioned or were fired carelessly and fell short , in some cases in densely populat ed areas of Gaza, causing deat hs and injuries.

485. For inst ance, according t o OHCHR, on 20 July 2014 at 10 p.m., six civilians in locat ions nort h of t he main cemet ery in Al-Faluja neighbourhood of Jabalia sust ained injuries when a rocket fired by P alest inian armed groups fell short and landed on a house nort h of t he cemet ery. 845 486. In anot her incident, which occurred in t he afternoon of 28 July on the first day of the Eid holiday, an explosive hit Swaidi st reet next t o a children’s swing in t he Al-Shat i refugee camp in nort hern Gaza. Eleven children, bet ween 5 and 14 years old, and t wo adult s were killed and up t o 45 people were injured, some seriously and many of t hem children. 846 According t o wit nesses it was t he Eid holiday and a t emporary ceasefire had been declared so parent s were out side in t he street celebrating wit h their children. The street was also more crowded t han usual because many people displaced during t he conflict had moved t o t he Al-Shati camp seeking safety.847 Between 4 and 5 p.m. an explosive landed on t he st reet between a food st ore and the children’s swing where children were playing. T he single explosion spread a large amount of shrapnel across t he area. Three eyewitnesses t old t he commission t hat t he explosion t hrew children’s bodies around and t ore t hem t o pieces. 848 487. T he MAG announced on 7 December 2014 that following a t horough review of t he incident by t he Fact -Finding Assessment s Mechanism (FFAM), “…such a st rike by IDF forces could not be ident ified. However, Israel's t echnical systems recorded in real-time the pat h of a salvo of missiles fired from wit hin t he Gaza St rip, seemingly by Hamas or P alest inian Islamic Jihad, which landed in t he medical clinics and in t he Shat i Refugee Camp at t he time of t he alleged incident …” 849 Hamas publicly denied t his allegat ion and t he Chief of Police in Gaza t old t he commission that the bomb disposal t eam t hat went t o t he Al-Shat i playground found t hat t he remnant s of t he weapons were Israeli. 850 488. T he commission received informat ion from NGO’s who conduct ed field research and a UN source who collect ed information indicating t hat t he explosion had been caused by a misfired P alest inian rocket . 851 One of t hem inspect ed t he sit e aft er t he at t ack and concluded t hat the impact of the explosion on the ground could not have been caused by an Israeli missile or art illery shell; t he NGO also indicat ed t hat eyewit nesses had report ed seeing a rescue t eam go t o the place just after the attack, whose members did not collect the wounded but cleared and collect ed t he remnant s of t he weapons. 852 In addit ion, t wo 845 846

847 848

849 850

851

852

A/HRC/28/80 Add. 1, para. 69 W098, W084. See also Amnesty International, Unlawful and deadly: Rocket and Mortar Attacks by Palestinian Armed Groups during the 2014 Gaza/Israel Conflict, M arch 2015, p.47.

W098, W085, W084.

W098, W085, W084. Also open sources’ reports. http://english.palinfo.com/site/pages/details.aspx?itemid=63279. http://rt.com/news/176216-childrengaza-israel-strike/ http://www.mag.idf.il/261-6958-en/Patzar.aspx, accessed 30 M ay 2015 http://www.aljazeera.com/news/middleeast/2014/07/deaths-as-israel-resumes-gaza-strikes20147281452469626.html. http://maannews.net/eng/ViewDetails.aspx?ID=716699\. https://news.vice.com/article/israel-denies-responsibility-for-gaza-attack-that-killed-9-children.

Interview of the commission with the Chief of Police in Gaza, M r. Al Batsh.

Confidential submission. Amnesty International, Unlawful and deadly: Rocket and Mortar Attacks by Palestinian Armed Groups during the 2014 Gaza/Israel Conflict, M arch 2015, pp 51-52.

Confidential submission.

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journalist s who spoke t o t he commission also suggest ed t he at t acks had been caused by P alest inian rockets misfiring. One of them said t hat Hamas members had gone t o t he sit e immediat ely aft er t he event s and cleared away t he debris. T he ot her said he had been prevent ed by local aut horit ies from going t o t he sit e of t he at t ack.

489. T he commission found t here was credible informat ion point ing t o t he conclusion t hat a misfired P alestinian rocket was t he source of this explosion. Given the gravity of t he case, in which 11 children and 2 adult s were killed in a place crowded wit h civilians, and t he allegat ions that local aut horities may have at t empt ed t o hide evidence of t he cause of t he incident , all relevant Palestinian authorities should conduct a t horough invest igat ion of t he case t o det ermine t he origin and circumst ances of t he at t ack.

6.

Executions of suspected “collaborators’ 490. “There were corpses on top of each other in a pool of blood.[…] There was no respect for the body.”853 491. “Life has become impossible for the family due to the rejection by society and the stigma.” 854 492. Execut ions of individuals suspect ed of “collaborat ing” wit h Israel’s int elligence services are not uncommon in Gaza. Since 2007, execut ions, sometimes wit hout trial, have been used t o punish alleged “collaborators”. Whereas in 2010 and 2013 the local authorities in Gaza launched t wo major amnesty campaigns t o persuade pot ent ial “collaborat ors” t o give up t his “cooperation”, the 2014 hostilities were marked by an upsurge in ext rajudicial execut ions of individuals alleged t o have spied for Israel. Most of t he execut ions were public. T he fact that the majority of the vict ims had been arrest ed and det ained before t he conflict prompts concerns t hat they were execut ed in order t o increase pressure on Gaza’s populat ion, wit h a view t o prevent ing ot hers from spying.

493. T he commission conduct ed t en int erviews wit h wit nesses and examined ot her relevant materials, including official documents from t he St ate of Palest ine, NGO report s, list s wit h names of victims, twitter statements by P alestinian armed groups, and news it ems.

Gat hering reliable information on these execut ions was part icularly challenging a s family members of t he victims and ot her persons wit h knowledge about t he t rials and execut ions generally were reluct ant t o give t est imony.

494. Based on it s research, the commission documented summary execut ions of at least 21 persons, including one wom an, 855 commit t ed bet ween 5 and 22 August 2014 in Gaza Cit y, allegedly for being collaborators for Israel. 856 Five summary execut ions occurred on 5 August , one on 11 August , and at least 15 on 22 August . The people execut ed on 5 August , and at least 11 persons execut ed on 22 August , were t aken from Al-Kat iba prison where t hey had been held in t he cust ody of t he local aut horit ies in Gaza and shot by firing squad. 857 Of t hese 16 executions, 8 persons had t rials on-going and 2 had received prison sent ences aft er conviction. The other 6 individuals had challenged deat h sent ences imposed

853 854 855 856

857

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W005 W022 W202 This figure on extrajudicial executions is lower than the one reported by HRW (25 persons) http://tinyurl.com/qdh2rwy and the figure communicated by Amnesty international (23 persons). The commission’s figures are based on confirmed lists of names that were furnished by various sources in Gaza. (Testimony W202).

See also: Amnesty International: Strangling necks. M ay 2015; at: https://www.amnesty.org/en/documents/mde21/1643/2015/en/

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under t he P LO Revolutionary P enal Code of 1979 and were wait ing for t he decisions on t heir appeals. 858 495. On 7 August , Al Qassam Brigades, t he armed branch of Hamas, claimed responsibilit y for the 5 August execut ions, declaring t hat the persons executed were “found guilt y of giving information on the whereabout s of fighters and civilian houses”. 859 On 22 August , Al Qassam Brigades announced t he execut ion of 11 persons in the morning 860 and 7 aft er t he Friday prayers at Al Omari mosque 861 .

496. T he 22 August execut ions occurred a day aft er t hree Al Qassam commanders were killed by t he IDF in Rafah 862 and were followed by t he announcement of a securit y campaign against “collaborators” dubbed “Operation St rangling Necks”. 863 In the morning of 22 August , 11 Al Kat iba det ainees were execut ed out side t he abandoned Al Jawazat police st ation864 and Hamas reportedly warned t hat “t he same punishment would soon be imposed on ot hers”. 865 On t he same morning, masked men report edly read a Hamas st at ement out side Al Omari mosque announcing t hat several “collaborat ors” had been sent enced t o deat h.866 As worshippers were leaving t he mosque, at least six persons were execut ed in front of t hem by masked men. 867 497. Several of t he commission’s interlocutors mentioned t hat some of t he above alleged “collaborators” were ill-treated and t ortured while in det ention or under cust ody, including by beat ings. Ot hers have documented abduct ion and t ort ure perpet rat ed by Hamas during t he 2014 hostilities868 . Although t he commission was unable t o verify t hese allegat ions, it recalls t hat t ort ure and ill-t reat ment are prohibit ed under int ernat ional law and require prompt and impartial investigations. It also appears that some of the execut ions and cases of ill-t reatment were direct ed against persons who had links wit h Fat ah and t he P alest inian aut horit ies’ securit y forces and may have been act s of revenge.

498. Represent at ives of t he local aut horit ies in Gaza t old t he commission t hat t he execut ions were carried out by self-organized P alest inian fact ions operat ing in secrecy, wit hout instructions from the aut horities.869 They informed t he commission t hat t he local

858

859

860 861 862 863 864

865

866

867

868

869

W024, W005, W022 and W023; see also: Amnesty International: Strangling necks. M ay 2015; at: https://www.amnesty.org/en/documents/mde21/1643/2015/en/; News reports. http://tinyurl.com/psv72pw, http://www.ahdath.info/?p=11335, http://tinyurl.com/ms2z7lk; http://tinyurl.com/ots3rqd https://twitter.com/qassam_arabic1/status/502741612347527168 https://twitter.com/kmmt727/status/502773666724052992 Sama news. 2 January 2015. At http://samanews.com/ar/index.php?act=post&id=223695 Al M ajd, undated. At http://www.almajd.ps/?ac=showdetail&did=5898 Amnesty International: Gaza: Hamas must end summary executions as ‘informers’ face firing squad.

22 August 2014, at: https://www.amnesty.org/en/articles/news/2014/08/hamas-must-end-summaryexecutions-informers-face-firing-squad/ Amnesty International: Gaza: Hamas must end summary executions as ‘informers’ face firing squad.

22 August 2014, at: https://www.amnesty.org/en/articles/news/2014/08/hamas-must-end-summaryexecutions-informers-face-firing-squad/ ; BBC: Gaza: Hamas says 18 suspected informants executed.

22 August 2014. At http://www.bbc.com/news/world-middle-east-28896346 Amnesty International: Strangling necks. M ay 2015; p. 19; at: https://www.amnesty.org/en/documents/mde21/1643/2015/en/ Amnesty International: Strangling necks. M ay 2015; p. 19; at: https://www.amnesty.org/en/documents/mde21/1643/2015/en/ Amnesty International: Strangling necks. M ay 2015; p. 28-33; at: https://www.amnesty.org/en/documents/mde21/1643/2015/en/ W069 and W265; note also Abbas’s statement quoted by Amnesty International; Amnesty International: Gaza: Hamas must end summary executions as ‘informers’ face firing squad. 22 August

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aut horit ies had purport edly creat ed a body t o invest igat e allegat ions of ext rajudicial killings. T he Minist ry of Int erior of t he St at e of P alest ine said t hat “T he P alest inian P resident and Government have frequent ly condemned t he arbitrary execut ions carried out during t he at t ack against t he Gaza St rip, describing t hem as illegal. T he Government of Nat ional Consensus, formed just days before t he at t ack, did not have a presence on t he ground in t he Gaza st rip effective enough t o enable it s judicial organs t o invest igat e such act s. T he Palestinian Public Prosecut or’s Office has still not been able t o exercise it s legal jurisdict ion by invest igat ing and prosecut ing t he perpet rat ors of t hose act ions.”870 T he commission learned t hat a draft law t o st rengthen judicial and procedural safeguards for t he prosecut ion of alleged “collaborat ors” and pave t he way for t he abolit ion of t he deat h penalt y has been put forward by t he St at e of P alest ine. 871 Government aut horit ies have pledged t o investigate 25 cases of summary execut ions t hat were brought t o it s at t ent ion once it recovers cont rol over t he Gaza st rip. 872 499. T he summary execut ions had devast ating consequences t hat extend well beyond t he act s t hemselves. Since t hey are widely perceived as evidence of t he vict ims’ guilt , t he st igma t hat accompanies them “punishes” the relatives. Witnesses spoke of t he execut ions as indelible st ains on t he family’s reput at ion and honour , which can be long-last ing and t ranslate into various forms of discrimination, including in t erms of access t o educat ion and employment. Witnesses described how relat ives of those execut ed face exclusion and could not find jobs as a result of t he executions. They also point ed out t hat t hey did not believe t hat there was any chance that the perpetrators would be brought t o just ice. Moreover, t he wit nesses request ed t hat their ident it ies remain confident ial as t hey feared ret aliat ion by members of t he political leadership or by societ y at -large for speaking out . Alt hough t he local aut horities t old t he commission that specialized social affairs committees had been set up t o support the families of persons accused of collaborat ion, t he far -reaching effect s of st igma call for a st ronger response to ensure t hat t he civil, polit ical, social and economic right s of t he relat ives are fully prot ect ed.

500. Wit h regard t o the det ainees t aken from Al Kat iba prison, where t hey had been in t he cust ody of t he local aut horities in Gaza while t heir judicial proceedings were pending, t he commission is concerned by t he statement by t he local aut horit ies t hat t he execut ions were carried out by P alest inian armed groups wit hout any part icipat ion by t he local aut horities. Given that ensuring t he safet y of t he det ainees was t he responsibilit y of t he aut horit ies, t he lat t er appear t o have been complicit in t he execut ions.

501. T he commission is of the view t hat inmat es were t ransferred out of t he prison and summarily execut ed wit h t he apparent knowledge of t he local aut horit ies in Gaza, in violat ion of their obligation to protect the right to life and securit y of those in their cust ody.

T hese ext rajudicial execut ions, many of which were carried out in public, const it ut e a violat ion of both international humanitarian law and int ernational human right s law. Article 6 of t he International Covenant on Civil and P olitical Right s prot ect s t he right t o life and cannot be derogat ed from, not even “in time of public emergency which t hreatens the life of t he nat ion and t he exist ence of which is officially proclaimed” (art icle 4). Int ernat ional human right s law imposes t he dut y on relevant aut horit ies t o invest igat e, prosecut e and

870 871 872

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2014, FN 20; at: https://www.amnesty.org/en/articles/news/2014/08/hamas-must-end-summaryexecutions-informers-face-firing-squad/ HRC/NONE/2015/36, p. 7 W167 W167 and HRC/NONE/2015/36; State of Palestine, M inistry of Foreign Affairs: Reply to requests for clarification from the UN CoI on the 2014 Gaza Conflict

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punish violat ions of the right to life, in line wit h the Principles on the Effective P revent ion and Invest igat ion of Ext ra-legal, Arbit rary and Summary Execut ions 873 .

502. Because of t heir link to t he armed conflict, the extrajudicial execut ions const it ut e a violat ion of art icle 3 common t o t he 1949 Geneva Convent ions, which, in relat ion t o “persons t aking no active part in the hostilities […] and t hose placed “hors de combat ” by […] det ent ion, prohibits (a) violence to life and person, in part icular murder of all kinds, mut ilat ion, cruel treatment and t orture […]; (d) t he passing of sent ences and t he carrying out of execut ions without previous judgment pronounced by a regularly const it ut ed court , affording all t he judicial guarant ees which are recognized as indispensable by civilized peoples” and amount t o a war crime. Whoever is responsible for t he killings, whet her t he Al Qassam Brigades, ot her P alest inian armed groups, or t he local aut horit ies, must be brought t o just ice.

B.

The West Bank, including East Jerusalem 503. On 12 June 2014, 19-year-old Eyal Yifrah and 16-year-olds Gilad Sha’er and Naft ali Frenkel were abduct ed and brut ally murdered. Last seen near the Israeli sett lement bloc of Gush Et zion in t he sout hern West Bank, 874 t heir bodies were discovered nort hwest of Hebron on 30 June 2014. 875 In response to their kidnapping, from 12 to 30 June 2014, Israel launched Operat ion ‘Brother’s Keeper’, which the IDF stated aimed to find t he three youths and simult aneously “weaken Hamas terror”. 876 On 23 Sept ember 2014, t he IDF declared t hat t hese object ives were met . 877 504. T he period of June t o Sept ember 2014 was marked by height ened t ensions in t he West Bank, including East Jerusalem. Israeli securit y forces (ISF) conduct ed widespread raids on P alest inian homes and ot her civilian buildings, carried out mass arrest s, and det ained large numbers of P alest inians, including children. Israel imposed severe rest rict ions on P alest inians’ movement wit hin and out of t he West Bank, as well as on P alest inian access t o t he Al Aqsa Mosque. In addit ion, Israel resumed it s pract ice of punit ive house demolit ions.

505. During t his period, there was also a st ark rise in deat hs and injuries of P alest inians by t he ISF. T hese occurred in t he cont ext of prot est s by P alest inians in t he West Bank against Israel’s air and ground offensives int o Gaza and ensuing clashes, as well as during confrontations bet ween Palestinians and t he ISF following t he vicious murder of 16 -yearold Mohammad Abu Khdeir, from the Shu’fat neighbourhood of East Jerusalem, who was found burnt t o deat h in West Jerusalem on 2 July 2014, in an apparent act of revenge for the murdered Israeli t eenagers. An increase in ISF search and arrest operat ions in refugee

873

874

875

876 877

adopted by Economic and Social Council resolution 1989/65; see: ohchr.org/Documents/ProfessionalInterest/executions. https://www.idfblog.com/blog/2014/09/23/abductors-three-israeli-teenagers-targeted-hebron/ ; http://mfa.gov.il/M FA/PressRoom/2014/Pages/Terrorists-responsible-for-abduction-and-murder-ofteens-apprehended-23-Sep-2014.aspx (accessed on 31 M ay 2015).

Israel M inistry of Foreign Affairs, Terrorists responsible for abduction and murder of teens apprehended, 23 September 2014, at http://mfa.gov.il/M FA/PressRoom/2014/Pages/Terroristsresponsible-for-abduction-and-murder-of-teens-apprehended-23-Sep-2014.aspx (accessed on 31 M ay 2015) https://www.idfblog.com/IDFsummary2014/ (accessed on 31 M ay 2015) Israel M inistry of Foreign Affairs, Terrorists responsible for abduction and murder of teens apprehended, 23 September 2014, at http://mfa.gov.il/M FA/PressRoom/2014/Pages/Terroristsresponsible-for-abduction-and-murder-of-teens-apprehended-23-Sep-2014.aspx (accessed on 31 M ay 2015)

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camps was also oft en t he catalyst for confrontations. 878 According t o information reviewed by t he commission, during t hese clashes and confrontations, Palestinians threw st ones and, in some cases, Molot ov cockt ails and fireworks; and in isolat ed inst ances fired live ammunit ion. T he ISF used t ear gas, rubber bullet s, rubber -coat ed met al bullet s, and regularly resort ed to live ammunition. 879 There appear to have been spikes in the number of confront at ions, including in refugee camps, in connect ion wit h key development s or incident s, such as t he launch of Operation ‘Protective Edge’ and t he killing of Mohammad Abu Khdeir. 880 506. During t he mont h of July 2014, t he Israel Securit y Agency recorded a “sharp increase in at tacks and riots” by P alestinians in the West Bank and Jerusalem, 881 wit h 424 at t acks in the West Bank and 83 in Jerusalem. 882 According to their records, t he number of incident s declined in August 2014 (241 attacks in the West Bank and 69 in Jerusalem), 883 and again in Sept ember 2014 (89 attacks in the West Bank and 25 in Jerusalem). 884 T here were no st at istics available in the monthly reports of the Israel Securit y Agency during t his period on incident s of settler violence. Nevertheless, the commission received informat ion indicat ing t hat settler violence against Palestinians and t heir property continued unabat ed 885 in an ongoing climat e of impunity,886 and t hat settlement relat ed act ivit y was ongoing. 887 507. According t o informat ion received by t he commission, aft er t he abduct ion of t he Israeli yout hs, tensions were further fueled by a rise in ext reme anti-Palestinian rhet oric by some Israelis, notably in social media, inciting revenge and hat red against P alest inians; as well as report ed harassment ; and somet imes, at t acks on P alest inians and damage t o businesses employing P alest inians. 888 T he ant i-P alest inian rhet oric included sexual and negat ive references t o female relat ives of persons connect ed wit h armed groups and individuals killed during t he conflict . 889

878 879 880 881

882

883

884

885

886

887

888 889

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Submission 46.2 UN OCHA Humanitarian Bulletin (June-August 2014) Submission 46.2 The Israel Security Agency does not disaggregate data between East and West Jerusalem, but rather refers to Jerusalem.

M onthly summary – July 2014, at http://www.shabak.gov.il/SiteCollectionDocuments/M onthly%20summary%20– %20July%202014%20docx.pdf (accessed on 31 M ay 2015) M onthly summary – August 2014, at http://www.shabak.gov.il/SiteCollectionDocuments/M onthly%20summary%20– %20August%202014.pdf (accessed on 31 M ay 2015) M onthly summary – September 2014, at http://www.shabak.gov.il/SiteCollectionDocuments/M onthly%20summary%20– %20September%202014.pdf (accessed on 31 M ay 2015) Joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights Yesh Din, Data Sheet, November 2014, at http://www.yesh-din.org/infoitem.asp?infocatid=636 (accessed on 31 M ay 2015) Peace Now, Unprecedented land confiscation of 4,000 dunams near Bethlehem, 31 August 2014, and Alarming Developments on the Ground, 7 July 2014, at http://peacenow.org.il/eng/GvaotDecleration and http://peacenow.org.il/eng/3-New-Outposts respectively (accessed on 31 M ay 2015) A/HRC/28/80/Add.1, para. 7.

Haaretz, Israeli professor's 'rape as terror deterrent' statement draws ire, 22 July 2014, at http://www.haaretz.com/news/national/.premium-1.606542#!; The Daily Beast, Israeli Politician Declares ‘War’ on ‘the Palestinian People’, 7 July 2014, at http://www.thedailybeast.com/articles/2014/07/07/israeli-politician-declares-war-on-the-palestinianpeople.html (accessed on 15 M ay 2015). The Facebook page, previously at: https://www.facebook.com/ayelet.benshaul.shaked/posts/596568183794945, has been removed.

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508. T he commission received informat ion indicat ing t hat P alest inian securit y forces suppressed a number of prot ests against the hostilities in Gaza, held in t he West Bank. In addit ion, bet ween 13 June and end Sept ember 2014, t he P alest inian Aut horit y allegedly arrest ed and det ained 13 suspect ed polit ical opponent s or persons expressing dissent ing views. 890 In isolat ed inst ances, t hose det ained report ed ill-t reat ment . 891 Mass arrest and detention 509. T he ISF carried out mass arrest s in t he West Bank, including East Jerusalem, arrest ing over 2,050 Palestinians bet ween June and end Sept ember 2014. 892 Many of t hose det ained were released just a short time after t heir arrest , making it difficult t o obt ain an exact figure. 893 They included 27 members of the Palestinian Legislative Council and over 60 individuals who had been liberat ed as part of a 2011 prisoner exchange t hat secured t he release of Israeli soldier Gilad Shalit . 894 The commission was informed t hat, in many cases, including t hose of children, families were not notified of the arrest and whereabout s of their relat ive. 895 510. T he commission heard t estimony relating t o the arrest of about thirt y young men of t he Abu Khdeir family, including a 17-year-old minor, for allegedly t hrowing st ones and dest roying public property during t he funeral of Mohamed Abu Khdeir in East Jerusalem on 4 July 2014. P olice allegedly forced t heir way into one of the houses of t he Abu Khdeir family at 3.00 a.m. to look for suspect s, despite t he plea by eight female family members who had been sleeping in light garments and asked for t ime to get dressed. 896 A 15-year-old P alest inian-American member of the family, T areq Abu Khdeir, was also arrest ed and ill t reat ed by t he ISF in East Jerusalem on 3 July. 897 He was report edly placed under house arrest unt il 17 July when he was allowed t o leave Israel and ret urn t o t he Unit ed St at es o f America. He was cleared of wrongdoing in January 2015. 898 511. T hose arrested and det ained included a significant number of children. In June, July and August 2014, t he Israel P rison Service report ed t hat 201, 191 and 200 children respect ively, were in military det ention. 899 Most children were report edly held in pre-t rial

890

891 892 893 894 895 896 897

898

899

Joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights Ibid.

Ibid., citing Addameer A/HRC/28/80/Add.1, para. 14.

Ibid.

Submission from HaM oked W193 Addameer, Urgent appeal, 4 July 2014, http://www.addameer.org/etemplate.php?id=706 ; The Guardian, Palestinian boy M ohammed Abu Khdeir was burned alive, says official, 5 July 2014, at http://www.theguardian.com/world/2014/jul/05/palestinian-boy-mohammed-abu-khdeir-burned-alive (accessed on 10 M ay 2015) The Jerusalem Post, Tariq Abu Khdeir cleared of wrongdoing, 28 January 2015, at http://www.jpost.com/Arab-Israeli-Conflict/Tariq-Abu-Khdeir-cleared-of-wrongdoing-389198 (accessed on 31 M ay 2015) M ilitary Court Watch, Statistics - Palestinian 'security' prisoners in Israeli detention, at http://www.militarycourtwatch.org/page.php?id=J5V0bQevz8a19020AWwFbv7lxv2 (accessed on 31 M ay 2015). According to information received by the Commission, the total number of children detained during this period may have been higher since detention figures are provided at the end of each month and appear to exclude children who were arrested and released in the same month.

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det ent ion until t he end of t he judicial proceedings, 900 in relat ion t o accusat ions of st one t hrowing; just under half of them were housed in places of det ention located in Israel. 901 All were boys, wit h t he except ion of one girl; most were bet ween 16 t o 17 years old and a significant number aged bet ween 14 and 15. 902 512. T he det ent ion of male family members negat ively affect ed t he well -being of t he suspect s’ families, particularly t he women and girls who were unprepared t o t ake on t he role as t he head of households. 903 As a result of cult ural, economic and legal inequalit ies, women remain dependent on male family members. 904 Administrative detention 513. According t o information received by t he comm ission, a significant number of those arrest ed were placed under administ rative det ention, wit hout charge or trial. Administrative det ainees appear before a milit ary court judge but are not charged wit h any criminal offense. 905 Based on dat a provided t o NGOs by t he Israel P rison Service, t he number of administ rative det ainees more than doubled, from 201 in early June t o 449 in early August 2014. NGO B’Tselem recorded 473 administrative det ainees, as at the end of August 2014, which appears t o be t he highest number of administ rat ive det ainees since April 2009.

According t o t he Israel Prison Service, over 60 per cent of t hem had been held for t hree mont hs or less; some 10 per cent for three to six months; some 13 per cent for six months to one year; some 13 per cent for one t o t wo years; and four det ainees for over t wo years.

Some 70 per cent of them were held in facilities located inside Israel. 906 Usually issued for one t o six mont hs, administ rat ive det ent ion orders can be renewed indefinit ely. 907 514. While administ rative det ention is not prohibit ed per se under int ernat ional law, it s use should be limit ed. Given t he considerable number of people held in administ rat ive det ent ion, the commission is concerned t hat Israel appears t o use t his form of det ent ion more broadly t han justified by t he law. Evidence on which t he det ent ion order is based is considered secret and is not disclosed t o the detainees or their counsel, making it impossible for t hem t o challenge t he lawfulness of t he det ent ion and rendering any judicial review ineffect ive. 908 Moreover, t he t ransfer of t he majorit y of t hese det ainees from occupied t erritory to prisons inside Israel is not only a violation of the Fourth Geneva Convention, 909 but also frequent ly means that family visits are not possible owing t o access and movement rest rict ions.

900

901

902

903 904 905 906

907 908 909

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Submission 43; see also Haaretz, In Israel, a different fate for detained Palestinian youths, 23 M ay 2014, at http://www.haaretz.com/news/diplomacy -defense/.premium-1.592352#! (accessed on 15 M ay 2015) See paragraphs above for legal framework regarding the transfer of detainees outside occupied territory.

M ilitary Court Watch, Statistics - Palestinian 'security' prisoners in Israeli detention, at http://www.militarycourtwatch.org/page.php?id=J5V0bQevz8a19020AWwFbv7lxv2 (accessed on 31 M ay 2015) Submission 41 W283 A/HRC/28/80, para. 33 Submission from HaM oked; B’Tselem, Israel holding more than 470 Palestinians in administrative detention – highest number in 5 years, 7 October 2014, at http://www.btselem.org/administrative_detention/20141007_spike_in_number_of_administrative_det ainees (accessed on 31 M ay 2015) A/HRC/28/80, para. 33 For further details on the use administrative detention under international law, see A/67/372, para. 26.

Art. 76, Geneva Convention IV

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515. In it s November 2014 concluding observat ions, t he UN Human Right s Commit t ee expressed concern “at the continuing practice of administrative detention of Palestinians, at t he fact that in many cases the detention order is based on secret evidence and at t he denial of access t o counsel, independent doct ors and family cont act s (art s. 4, 9, and 14).” It recommended t hat Israel “[e]nd t he pract ice of administ rat ive det ent ion and t he use of secret evidence in administrative det ention proceedings, and ensure t hat individuals subject t o administ rative det ention orders are either promptly charged wit h a cri minal offence, or released.”910 Torture and ill-treatment of adults and children 516. No official dat a was available t o t he commission regarding int errogat ions by t he Int ernal Securit y Agency or on t he use of t ort ure under t he just ificat ion of “defence of necessit y”. 911 However, t he commission reviewed informat ion suggest ing t hat cruel, inhuman or degrading t reat ment or punishment was used ext ensively during int errogat ions in t he period under examinat ion. 912 Indeed, such allegat ions were persist ent ly raised by persons arrest ed and det ained and by persons det ained prior t o t he period under examinat ion, who st at ed t hat t hey were re-int errogat ed. 913 517. Specifically in relation t o children, the commission interviewed t hree 14 to 17-yearold boys, who were arrest ed by ISF in East Jerusalem, Nablus and Jenin, in June, July and early August respect ively; 914 reviewed t he affidavits and t estimonies of a number of minors arrest ed in t he West Bank during t his period, whose cases were document ed by NGOs; and spoke t o t wo lawyers handling cases of P alestinian children detained in t he West Bank. 915 All of t he children, whose t est imonies were examined, said t hat t hey were subject ed t o mult iple forms of cruel, inhuman or degrading t reatment involving soldiers, int errogat ors, or prison guards during t he various st ages of arrest, transfer, interrogation and/or detention.

518. T hese account s are consist ent wit h findings of UN bodies and NGOs in recent years. 916 In November 2014, the Human Rights Committee expressed concern “ at reports of t he use of t orture and other ill-treatment in the St ate part y’s det ent ion facilit ies, including

910 911

912

913

914 915 916

CCPR/C/ISR/CO/4, para. 10 Torture practised under the “defence of necessity” continues to be legal under Israeli law, as noted with concern by the Human Rights Committee in November 2014 (CCPR/C/ISR/CO/4, para. 14).

Joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights; Public Committee Against Torture in Israel, Israel - Briefing to the Human Rights Committee for the Committee’s Review of the Fourth Periodic Report on Israel, September 2014, at http://www.stoptorture.org.il/files/PCATI%20submission%20to%20HRC%202014_0.pdf (accessed on 27 M ay 2015) Joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights; Public Committee Against Torture in Israel, Israel - Briefing to the Human Rights Committee for the Committee’s Review of the Fourth Periodic Report on Israel, September 2014, at http://www.stoptorture.org.il/files/PCATI%20submission%20to%20HRC%202014_0.pdf (accessed on 27 M ay 2015) W184; W170; W165 W094; W154 UNICEF, Children in Israeli M ilitary Detention - Observations and Recommendations, February 2013; M ilitary Court Watch, Children in M ilitary Custody, 1 September 2014, at http://www.militarycourtwatch.org/files/server/CHILDREN%20IN%20M ILITARY%20CUSTODY %20-%202%20YEARS%20ON%20(1).pdf; Submissions from Adalah and Aldameer Association for Human Rights; A/68/379

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widespread, syst emat ic and institut ionalized ill-treat ment of P alest inian children”, 917 and called on Israel t o “take robust measures to eradicate t orture and ill-treatment against adult and child det ainees”. 918 Raids on homes 519. “At around 2 a.m., they shot a bomb and suddenly a wall collapsed. I saw blood coming out of my left arm, we were sure that we would die. At the time I didn’t see the injuries in my leg… My wife tried to dial a number but she was missing one finger.” A P alest inian fat her of t hree 919 520. In t he context of search and arrest operat ions, t he ISF allegedly raided hundreds of P alest inian homes as well as charit able associat ions, universit ies and media out let s. 920 Report s indicat ed t hat t he ISF oft en forcibly ent ered homes in t he early hours of t he morning, while family members were asleep, 921 and t hat many of t he raids result ed in significant damage t o propert y, and, in some cases, t heft of valuables. 922 According t o OCHA, approximately 1,400 houses were raided, including at least 280 cases of report ed damage; and at least 47 houses were occupied by t he ISF for periods ranging from several hours t o a few days. 923 521. T he homes of the Rushdi family were raided by an IDF unit shortly before 2.00 a.m. on 26 June 2014. According t o eyewit ness report s, 924 t he Israeli aut horit ies cut off t he elect ricity supply to the area before launching t he raid. Some 40 soldiers conduct ed a search int o t wo adjacent houses belonging t o t he ext ended family. An elderly female family member, described by wit nesses as frail, allegedly fell t o t he ground when soldiers forced t heir way inside t he home and report edly ransacked t he furnit ure and equipment . T he commission was informed t hat the victim suffered a st roke and t hat her calls for help went unheeded by t he IDF. The elderly woman was moved to a room wit h her daught er -in-law, while four children, under t he age of five, were held in a separat e room. Family members made repeat ed pleas t o t he IDF for an ambulance, as t he elderly woman’s condit ion det eriorated, with blood emanating from her mouth; but t heir calls were allegedly ignored.

Medical assist ance finally came in the form of a doct or of the IDF over 90 minut es after the vict im’s collapse, and eventually of an ambulance at around 4.00 a.m., by which t ime t he vict im had died.

522. On 11 August 2014, five members of the Aza’ar family were injured during a search and arrest operation by t he IDF. The children, aged six, eight and fourt een, were wounded, as were t heir parents, allegedly after the IDF shot and shelled t heir house while searching for a suspect who, t he IDF t old t he vict ims, had used t heir family home as a base from which t o shoot at the soldiers. The vict ims said t hat t hey were not asked t o evacuat e t he house before t he IDF began it s operat ion. 925

917 918 919 920

921

922 923 924 925

138

CCPR/C/ISR/CO/4, para. 15 Ibid.

W146 Submission from Addameer Prisoner Support and Human Rights Association; OCHA, Protection of Civilians, Weekly Report, 17-23 June 2014; A/HRC/28/80/Add.1, para. 6 Joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights Ibid.; A/HRC/28/80/Add.1, para. 6 OCHA, Humanitarian Bulletin, monthly report, June - August 2014 W185; W190 W146 and W147

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523. T he commission received informat ion regarding t he psychological impact of such operat ions on family members, part icularly women, including st ress and lack of sleep. 926 T his was exacerbat ed in t he case of raids conduct ed in night -t ime hours. In t wo of t he incident s examined by t he commission, women said t hat they were t hreat ened, mist reat ed and int errogat ed by t he IDF during raids on t heir homes, 927 and expressed a sense of humiliat ion as the situation challenged t heir physical and moral integrity. The women were quest ioned about male relat ives and t heir whereabouts and connections to Palestinian armed groups wit hout the presence of a female officer. In one of these cases, the soldiers allegedly denied t he request of t he women t o get dressed before being quest ioned. 928 In t he ot her case, t he woman’s brot her-in-law was beat en severely in front of his children when he object ed t o his brot her’s wife being quest ioned on her own by male soldiers on t he basis t hat it violated P alestinian cultural norms for a woman to be alone wit h men out side of her family. Aft er t he beat ing, t he woman was allegedly t aken int o a separat e room and int errogat ed by four soldiers for several hours. 929 Overall, during t his period, child prot ect ion act ors working in t he West Bank not ed a dramat ic increase in psychosocial int erventions t o support children and their families, notably those affected by house raids. 930 Restrictions on movement 524. T he period also saw int ensified rest rict ions on movement for P alest inians in t he West Bank, wit h resident s of t he Hebron area, and not ably Hebron cit y, part icularly adversely affect ed. As of the out set of Operat ion ‘Brot her’s Keeper’, Hebron’s 680,000 resident s were effect ively cut off from t he rest of t he West Bank owing t o a series of closures, checkpoints and other restrictions.931 Male residents of Hebron aged 16 t o 50 were prohibit ed from t raveling t o Jordan via t he Allenby Bridge, which had been t heir only means t o t ravel abroad. 932 T he commission was informed t hat t he P alest inian P olice Crossing Administ ration recorded t hat Israeli authorities prevented 3,393 Palestinians from crossing t he Allenby Bridge bet ween 13 June and 13 August 2014, due t o securit y preclusions, in comparison to 1,266 who were t urned away over all of 2013. 933 It appears t hat many of the affected individuals were visit ing t heir families in t he West Bank, while st udying or working abroad. 934 Among t hem was an engineer from the Jenin area who was working in Qat ar. On 9 August 2014, t he ISF at Allenby Bridge allegedly prevent ed him and his seven-year-old daught er from returning to Qatar via Jordan for ‘securit y reasons’.

He was t hus separat ed from his wife and t wo other children who were in Jordan, and feared losing his job if he was unable t o report t o work. 935 Overall, rest rict ions on movement

926

927 928 929 930 931 932 933 934

935

Women’s Centre for Legal Aid and Counselling, M oving Forward despite a Precarious Existence, 31 July 2014, at http://www.wclac.org/english/userfiles/WCLAC%202014%20Semi%20Annual%20Report.pdf (accessed on 1 M ay 2015); W193; W214.

W193 W214 OCHA, Humanitarian Bulletin, monthly report, June - August 2014 Ibid.; A/HRC/28/80/Add.1, para. 19 A/HRC/28/80/Add.1, para. 19; Submission from HaM oked Submission from HaM oked Ibid.; Joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights Joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights

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prevent ed many Palestinians from accessing services, market s, educat ion and workplaces and generat ed significant economic losses. 936 525. In relat ion to the right t o libert y of movement , guarant eed under art icle 12 of t he Int ernational Covenant on Civil and P olitical Rights, the Human Right s Commit t ee called on Israel, in November 2014, t o “ t ake all necessary measures wit h a view t o ensuring respect for t he right t o freedom of movement for P alest inians t hroughout t he OP T , comprising t he West Bank, including East Jerusalem, and t he Gaza St rip, and ensure t hat any rest rict ions on freedom of movement are in line wit h it s obligat ions under t he Covenant .” 937 Punitive home demolitions 526. According t o information reviewed by t he commission, 938 on 2 July 2014, t he IDF demolished a home in It hna, Hebron, belonging t o the family of a suspect accused of killing an Israeli policeman in April 2014. As a result , a mot her an d her five children lost t heir home. 939 This was followed, on 18 August 2014, by the demolit ion of t wo homes and t he sealing of a t hird, 940 of three persons suspected of involvement in the abduct ion and murder of t he Israeli youths. On 30 June 2014, the families had been forcibly evacuat ed from t heir homes, and t he ISF had allegedly set off explosions in t he houses in order t o render t hem uninhabit able. As a result of t he act ions on 30 June and 18 August 2014, 21 people, including at least 9 children, were displaced. 941 Orders t o demolish or seal a house were issued in November 2014 for a further six homes in East Jerusalem of P alest inian suspect s alleged t o have carried out let hal at t acks. 942 527. T he commission notes the particular effect t hat home demolit ions h ave on women and children. As a result of fixed gender roles and prevailing cult ural norms, P alest inian women’s lives are cent red around t he home and t heir presence in t he public sphere is limit ed. 943 The challenges women face in relation to home demolitions are exacerbat ed by

936

937 938

Submission from HaM oked; joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights; B’Tselem, Hebron District and its 680,000 residents under third day of closure: increasing reports of property damage in arrest raids, at http://www.btselem.org/press_releases/20140617_collective_punishment_in_hebron_district (accessed on 31 M ay 2015); OCHA, Humanitarian Bulletin, monthly report, June - August 2014 CCPR/C/ISR/CO/4, para. 18.

A/HRC/28/80/Add.1, paras. 17-18, submission from HaM oked; joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights; OCHA Protection of Civilians, Weekly Report, 12-18 August 2014.

ht t p://www.ochaopt.org/documents/ocha_opt_protection_of_civilians_weekly_report_2014 _8_22_english.pdf 939 940

941 942

943

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Submission from HaM oked Sealing involves the complete or partial closing off of rooms in a house with metal sheeting or by filling them with concrete. This can, at times, be an irreversible act.

OCHA Protection of Civilians Weekly Report, 12-18 August 2014 Special Rapporteurs on the situation of human rights in the Palestinian territories occupied since 1967 and on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Palestinian homes must cease to be a target, UN human rights experts say, 25 November 2014, at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15340&LangID=E (accessed on 31 M ay 2015); submission from HaM oked.

Women’s Centre for Legal Aid and Counselling, M oving Forward despite a Precarious Existence, 31 July 2014, at

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discriminat ion wit hin t he societ y it self, 944 including difficult ies securing t enure and managing and accessing propert y and ot her asset s. 945 528. In each case, t he NGO HaMoked pet itioned t he High Court of Just ice t o challenge t he legalit y of the home demolitions and prevent them from t aking place. 946 According t o t he information received by t he commission, the High Court of Just ice repeatedly dismissed t he pet itions, with the exception of one case, in which it issued an order nisi, instructing the st at e t o explain why it should not refrain from carrying out t he demolit ion. 947 On 31 December 2014, t he Court reject ed a general public pet it ion, present ed by eight Israeli NGOs, against t he policy of punit ive home demolit ions. 948 In it s judgement , t he Court accept ed t he St ate’s reasoning t hat t hese demolit ions were necessary on securit y grounds and in order t o act as a det errent . 949 T he Court did add t hat , from t ime t o t ime, St at e agencies should evaluat e t he effectiveness of such demolitions for det errence purposes, t o t he ext ent possible, and bring dat a t o t he Court in t he fut ure, if so required. 950 529. Wit h t he except ion of t he punit ive demolit ion of t wo homes in 2009, Israel had effect ively suspended t he practice of punitive home demolit ions in 2005, aft er a milit ary commission recommended t hat Israel stop resorting t o house demolitions of “t errorist s” in t he West Bank as a means of det errence against attacks on Israelis, and not ed t heir adverse effect s. 951 T his had been a welcome development .

530. T he commission is therefore concerned about the resumption of a practice that risks furt her fueling hatred and t he cycle of violence, rather than achieving it s stated objective of det errence. Moreover, punit ive home demolit ions are generally not subjec t t o a judicial process t o det ermine the guilt , or innocence, of the suspect or family members affect ed by t he demolition. The impact of t he punit ive demolit ion of a home affect s ent ire families, including t hose wit h no link t o t he alleged crime, and t herefore const it ut es collect ive punishment , in violation of int ernat ional humanit arian law. 952 Bearing t his in mind, t he commission is concerned t hat the High Court of Just ice did not accept t he aforement ioned pet it ion against the policy of home demolitions, and rejected the claim that any demolition, “regardless of it s specific circumstances, necessarily amounts t o collective punishment”. 953 531. Home demolit ions also violate Israel’s obligations under int ernational human right s law, not ably t he right s t o adequat e housing (as a component of t he right t o an adequat e st andard of living), family life, and physical and ment al healt h. In November 2014, t he Human Right s Commit t ee called on Israel t o “[i] mmediat ely put an end t o conduct ing punit ive demolitions given their incompatibility with the St ate party’s obligations under t he

944 945

946 947 948

949 950 951

952 953

http://www.wclac.org/english/userfiles/WCLAC%202014%20Semi%20Annual%20Report.pdf (accessed on 1 M ay 2015) Ibid.; W283 Norwegian Refugee Council, at http://womenshlp.nrc.no/countries/palestine-gaza/ (accessed on 15 M ay 2015) Submission from HaM oked Ibid.

According to HaM oked, on 15 January 2015, the organisations applied for another hearing of the petition before an expanded panel of justices.

HCJ 8091/14 Ibid.

The report of the military commission was not publicly available, but a presentation of slides, submitted to the High Court of Justice, can be found at: http://www.hamoked.org.il/items/110467.pdf.

See slides 30 and 29.

Art. 33, Geneva Convention IV HCJ 8091/14

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Covenant and provide effect ive remedies t o vict ims of dest ruct ion of propert y, forced evict ion and forcible t ransfer”. 954 Deaths and injuries of Palestinians during law enforcement activities 532. “We were a number of young people in Bethlehem. We didn’t have any arms. We 955 were just shouting slogans. We weren’t a threat to anyone, but at 8pm it happened .”

P alest inian human right s defender Farid Al At rash, who was shot in t he leg by live ammunit ion.

533. According t o t he UN, bet ween 12 June and 26 August 2014, 956 27 P alest inians, including five children, 957 were allegedly killed and over 3,100 Palestinians, including 460 children, were injured by t he ISF. 958 Document ation by NGOs suggest s t hat this figure rose again by end Sept ember. 959 Of t he 27 fat alit ies, t he UN found t hat 14 “were incurred in clashes t hat erupted following prot est s against t he host ilit ies in Gaza and rest rict ions on access t o Al Aqsa Mosque”, and seven t ook place in t he cont ext of confront at ions during search and arrest operations. Nine of t he fat alit ies, including t hree of t he children, were killed in t he Hebron area. Casualty figures represented a t hree-fold increase in comparison t o t he first five mont hs of 2014. 960 T he commission examined 14 cases of killings, including t hree children, and nine cases of injuries, of which three were children. Based on information collected by t he commission, young persons in t heir lat e t eens and early 20’s were part icularly at risk, in part due t o t heir significant presence or part icipat ion during prot est s and t heir perceived or act ual involvement in st one-t hrowing.

534. On 20 July 2014, Farid Al At rash, a Palestinian human right s defender, was injured in his leg aft er being hit by live ammunition during a demonst rat ion in solidarit y wit h t he people in Gaza. He t old t he commission t hat he was peacefully part icipat ing in t he demonst ration in Bethlehem, when he was hit in the calf with live ammunit ion. 961 He said he heard no gunshot . Some prot est ors were allegedly t hrowing st ones, and t he IDF responded by using crowd dispersal t echniques, such as sound bombs and t ear gas. 962 Clashes bet ween P alestinians and t he IDF report edly went on unt il t he early hours of t he morning. The victim explained that the protest had t aken place near Al Qubba checkpoint (also known as checkpoint 300 near Rachel’s T omb) and t hat Israeli soldiers st at ioned behind t he ‘Wall’ came out of t he gat e in t he ‘Wall’ aft er t he clashes int ensified and confront ed t he prot est ors.

535. On 25 July 2014, t hree P alest inian men - Hashem Abu Maria, Sult an Za’qiq and Abdelhamid Breighit h - were killed during a demonst ration t hat took place in the village of

954 955 956

957 958 959

960

CCPR/C/ISR/CO/4, para. 9 W155 This period represents the date when the three Israeli youths were abducted until the declaration of a ceasefire in Gaza.

A/HRC/28/80/Add.1, para. 10 OCHA, Humanitarian Bulletin, monthly report, June - August 2014 Joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights; B’Tselem, Palestinians killed by Israeli security forces in the West Bank, after operation Cast Lead, at http://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-of-death/westbank/palestinianskilled-by-israeli-security-forces (accessed on 31 M ay 2015) OCHA, Humanitarian Bulletin, monthly report, June - August 2014

ht t p://www.ochaopt.org/documents/ocha_opt_the_humanitarian_monitor_2014_10_03_eng lish.pdf 961 962

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W155 Ibid.; see also Panet at http://www.panet.co.il/article/831637

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Beit Umar in the Hebron area to protest against the hostilities in Gaza. In it s assessment of t he incident , t he commission relied on eyewit ness t est imony, as well as informat ion gat hered by OHCHR and NGOs. 963 536. According t o t he informat ion reviewed, Hashem Abu Maria was killed first , when st anding 100-250 met res away from a group of snipers st at ioned on t he rooft op of a building. An eyewit ness, st anding next t o t he vict im, t old t he commission t hat a masked sniper pointed a “long weapon” in their direct ion, “even if t here was no st one t hrowing” from where t hey were st anding. 964 T he wit ness st at ed t hat a single bullet t raversed Abu Maria’s chest , making a four cent imet re hole in his back, and injured anot her man, Mohammad Awad, in t he head, before deflect ing off a wall. Hashem Abu Maria was quickly t ransferred by prot est ers t o an ambulance and t aken t o hospit al, where he was pronounced dead. Mohammad Awad survived t he incident . Hashem Abu Maria was a well known civil societ y activist, who worked for the NGO Defence for Children Int ernat ional, in t he Hebron area. Eyewit ness t est imony received by t he commission corroborat es t he finding by OHCHR t hat Hashem Abu Maria was not t aking part in t he clashes. 965 537. According t o t he information available, Sult an Za’qiq was t he second t o be killed by live ammunit ion, aft er being felled by a single bullet . Abdelhamid Breighit h was shot subsequent ly by live ammunition in his leg, as he tried to drag Sult an Za’qiq back behind a wall where t hey had earlier t aken shelt er from t ear gas and rubber bullet s t hat were fired against prot est ors, some of whom were t hrowing st ones at t he ISF. 966 Anot her shot hit Abdelhamid Breighit h in the area of his abdomen. 967 The t wo men appeared t o have been hit by a sniper st ationed on a rooftop.968 Both men were taken to hospital by ambulance, but neit her survived. There was no indicat ion t hat Abdelhamid Breighit h had t hrown st ones.

538. Neit her Hashem Abu Maria nor Abdelhamid Breighith appear to have posed a di rect or imminent threat to the IDF soldiers or any other persons. Wit h regard t o Sult an Za’qiq, Human Right s Wat ch gat hered informat ion indicat ing t hat he may have been t hrowing st ones -- wit h his hand rat her t han a sling -- but was locat ed some 35 met res from t he nearest soldiers at the time he was shot , leading t he organisation t o conclude t hat “[u]nder t he circumst ances, it appears ext remely unlikely t hat Za’aqiq posed an imminent let hal t hreat t o Israeli forces”. 969 539. In a separat e incident on t he same day (25 July 2014), 22-year-old T ayyeb Abu Shehadeh was killed in t he village of Huwara in the Nablus area. According t o eyewit ness

963

964 965 966

967 968

969

W213; Human Rights Watch, Israel: Shooting Deaths after West Bank Protest Evidence Points to Unlawful Killings by Israeli Forces, 3 August 2014, at http://www.hrw.org/news/2014/08/03/israelshooting-deaths-after-west-bank-protest-0 (accessed on 15 M ay 2015); B’Tselem, 13 Palestinians killed by Israeli security forces in West Bank since Operation Protective Edge began: Excessive use of live fire suspected, 29 July 2014, at http://www.btselem.org/press_releases/20140729_13_palestinian_fatalities_since_gaza_operation_be gun (accessed on 15 M ay 2015); A/HRC/28/80/Add.1, para. 13.

W213 A/HRC/28/80/Add.1, para. 13.

Information provided by Al Haq; see also Human Rights Watch, Israel: Shooting Deaths after West Bank Protest Evidence Points to Unlawful Killings by Israeli Forces, 3 August 2014, at http://www.hrw.org/news/2014/08/03/israel-shooting-deaths-after-west-bank-protest-0 (accessed on 15 M ay 2015) Ibid.; information provided by Al Haq Human Rights Watch, Israel: Shooting Deaths after West Bank Protest Evidence Points to Unlawful Killings by Israeli Forces, 3 August 2014, at http://www.hrw.org/news/2014/08/03/israel-shootingdeaths-after-west-bank-protest-0 (accessed on 15 M ay 2015) Ibid.

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t est imony and ot her mat erial reviewed by t he commission, 970 he was shot by an Israeli soldier during clashes bet ween P alestinians and t he IDF. The clashes were t riggered by t he killing, earlier that day, of Khaled Odeh by a set t ler. Eyewit ness t est imony indicat es t hat t ear gas was used t o disperse t he prot est ors at t he beginning of t he clashes. T ayyeb Abu Shehadeh apparent ly hid in an alley and appeared at t imes t o t hrow st ones at t he IDF. According t o t he informat ion available, a soldier aimed his weapon at t he alley and shot T ayyeb Abu Shehadeh in t he face when he emerged. The victim was rushed t o hospital in a privat e vehicle, but did not survive.

540. Also on t he evening of 25 July 2014, a Palestinian man sust ained an injury to his leg by live ammunition fired by t he IDF. The man told t he commission that, in his professional capacit y, he was covering a demonst ration of several t housand P alest inians, who marched from t he centre of Jenin t owards t he Jalama checkpoint in solidarit y wit h t he people of Gaza. Most of t he demonstrators were dispersed by t he IDF and prevent ed from reaching t he checkpoint . A group of some 150-200 men cont inued t o advance t owards t he checkpoint , and allegedly t hrew st ones and Molotov cocktails and burnt tyres. 971 The victim said t hat he continued t o observe the events when he felt something met allic in his leg and t hen felt his leg was “on fire”, before falling t o t he ground and losing consciousness. He not ed t hat he had heard no sound of a bullet before he was hit . 972 A number of ot her P alest inians were allegedly injured during t he incident and 19-year-old Basem Abu Al Rub was killed on t he night of 25 t o 26 July. 973 541. On t he morning of 10 August 2014, 11-year-old Khalil ‘Anat i was killed near his house in t he al-Fawwar refugee camp in Hebron. According t o eyewit ness t est imony and ot her material reviewed by t he commission,974 a single live bullet , fired by an IDF solider, ent ered Khalil’s back. Khalil was rushed t o hospital in a privat e vehicle and died en rout e.

Information available indicates that Khalil ‘Anat i was accompanied by a handful of ot her boys, some or all of whom may have t hrown st ones at milit ary vehicles t hat ent ered t he camp t hat morning. However, it appears t hat the area was calm at the time; that the soldiers in t he vehicle did not use any non-lethal measures; and t hat they were not under any serious t hreat. These elements raise the quest ion as t o whet her the soldier may have aimed direct ly at t he boy.

542. OHCHR concluded t hat t he number of P alest inians killed by t he ISF during t his t wo-and-a-half month period was equivalent t o t he t ot al number of P alest inian s killed in 970

971

972 973

974

144

W168; submission 4.2; B’Tselem, Palestinians killed by Israeli security forces in the West Bank, after operation Cast Lead, at http://www.btselem.org/statistics/fatalities/after-cast-lead/by-date-ofdeath/westbank/palestinians-killed-by-israeli-security-forces (accessed on 31 M ay 2015) W281; joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights; B’Tselem, 13 Palestinians killed by Israeli security forces in West Bank since Operation Protective Edge began: Excessive use of live fire suspected, 29 July 2014, at http://www.btselem.org/press_releases/20140729_13_palestinian_fatalities_since_gaza_operation_be gun (accessed on 15 M ay 2015) W281 W281; B’Tselem, 13 Palestinians killed by Israeli security forces in West Bank since Operation Protective Edge began: Excessive use of live fire suspected, 29 July 2014, at http://www.btselem.org/press_releases/20140729_13_palestinian_fatalities_since_gaza_operation_be gun (accessed on 15 M ay 2015); OCHA Protection of Civilians report, 22 July – 4 August 2014; joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights.

W227 and W192; B’Tselem finds: No justification for live fire that killed 10-yr-old Khalil ‘Anati in al-Fawwar R.C. on 10 Aug. 2014, 21 September 2014, at http://www.btselem.org/firearms/20140921_killing_of_khalil_anati; Submission 46.2

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similar circumstances in t he whole of 2013. 975 According t o OCHA, nearly a quart er of P alest inian injuries in t he West Bank bet ween June and August 2014 were sust ained as a result of live ammunit ion, marking a subst ant ial increase in absolut e and percent age t erms976 --- from 2 per cent in 2012. 977 According t o OHCHR, t he proport ion of t hose injured by live ammunit ion was much lower in East Jerusalem than in the rest of t he West Bank. 978 543. T he commission is concerned about t he regular resort by t he ISF t o live ammunition, including in sit uat ions where t here is no direct or imminent t hreat t o t h e ISF or ot her individuals. T he use of live bullet s inevit ably raises t he likelihood of deat h or serious injury. In t his context, the commission highlights the apparent increasing trend of t he ISF to use 0.22 inch calibre bullet s in crowd cont rol situat ions. 979 A st at ement made by t he IDF commander in t he West Bank on 9 Sept ember 2014 indicat es t hat 0.22 bullet s and ot her live ammunit ion were increasingly the munition of choice. He report edly not ed t hat “[i]n places where we used t o fire t ear-gas or rubber[-coated met al bullet s], we now fire Rut ger bullet s and somet imes live bullet s”.980 On several occasions, eyewit nesses or vict ims t old t he commission that they did not hear a bullet being fired. 981 In the aforementioned case of t he man injured in the Jenin area, he was informed t hat the bullet removed from his leg was a 0.22 bullet .

544. T he pervasive use of live ammunit ion, in part icular 0.22 inch caliber bullet s, combined wit h t he spike in fatalities and casualt ies arising out of Israel’s law enforcement act ivit ies in t he West Bank, appears t o confirm a change in policy or in t he open-fire regulat ions guiding IDF law enforcement operations in t he West Bank, despit e assurances by t he Milit ary Advocat e General in 2009 t hat 0.22 bullet s were not classified as riot cont rol means and were not appropriat e met hods t o deal wit h public dist urbances. 982 545. In t he West Bank, the ISF, including t he IDF, act in a law enforcement capacity, and should t herefore carry out their dut ies in accordance wit h the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. 983 P rinciple 9 st at es t hat t he use of firearms is aut horized in ext remely limit ed circumst ances, namely in “self-defence or defence of ot hers against t he imminent t hreat of deat h or serious injury, t o prevent t he perpet ration of a particularly serious crime involving grave threat to life, to arrest a person present ing such a danger and resist ing t heir aut hority, or t o prevent his or her escape, and only when less ext reme means are insufficient t o achieve t hese object ives. In any event , int entional lethal use of firearms may only be made when st rict ly unavoidable in order t o prot ect life.”

975 976 977 978 979

980 981 982

983

A/HRC/28/80/Add.1, footnote 12 OCHA, Humanitarian Bulletin, monthly report, June - August 2014 OCHA, Humanitarian Bulletin, monthly report, June - August 2014 A/HRC/28/80/Add.1, para. 10 B’Tselem, M ilitary steps up use of live 0.22 inch bullets against Palestinian stone-throwers, 18 January 2015, at http://www.btselem.org/press_releases/20150118_use_of_live_ammunition_in_wb (accessed on 15 M ay 2015); submission 46.2 Ibid. (unofficial translation) E.g. W281; W155 B’Tselem, Judge Advocate General to B'Tselem: 0.22-caliber bullets are not crowd-control measures, 9 July 2009, at http://www.btselem.org/press_releases/20090709 In November 2014, the Human Rights Committee called on Israel to “[t]ake all necessary measures to prevent incidents of excessive use of force during law enforcement operations, including by ensuring that rules of engagement or open fire regulations of the State party’s security forces in the West Bank, including East Jerusalem, and the Access Restricted Areas of Gaza, are consistent with article 6 of the Covenant and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials”, see CCPR/C/ISR/CO/4, para 13 (a).

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546. In relat ion to the Occupied P alestinian Territory, Israel is bound by art icle 6 of t he Int ernat ional Covenant on Civil and P olit ical Right s, which prohibit s t he arbit ra ry deprivat ion of life. The use of firearms against those not posing a t hreat t o life or serious injury, and modifications in policy or issuance of orders allowing for such use, const itutes a violat ion of this prohibition and may, depending on t he circumstances, amount to an act of wilful killing. T he unjust ified and illegal recourse t o firearms by law enforcement officials may const itute a war crime when it t akes place in t he cont ext of an int ernat ional armed conflict , including a sit uat ion of military occupation, and in t he event that the person killed was a prot ect ed person. In addit ion, t he commission not es t hat t he violat ion of t he prohibit ion of wilful killing includes t he intent to cause “serious bodily injury which, as it is reasonable t o assume [t he perpet rat or] had t o underst and was likely t o lead t o deat h,” 984 which is a clear risk when using live ammunit ion.

Settler violence and settlement related activity 547. Incident s of settler violence cont inued t o be report ed in t he West Bank, including East Jerusalem during t he summer of 2014. 985 There were allegat ions of physical assault s against P alest inians, st one-t hrowing against P alest inians and P alest inian cars, so -called “price t ag” incidents, 986 and damage t o Palestinian property. Cases of set t lers opening fire wit h live ammunition against Palestinians were also recorded. 987 In one case examined by t he commission, an 18-year-old P alest inian, Khaled ‘Odeh, was allegedly killed by an Israeli set tler during a demonst ration in solidarity with the people of Gaza on 25 July 2014 in Huwara, Nablus. Some four ot hers were also reportedly injured988 when a set tler driving past allegedly fired int o the crowd. 989 Informat ion received differed as t o whet her st ones were t hrown at the settler’s vehicle by one or more of the demonstrat ors and if so whet her t he st one-throwing began before or after t he shoot ing. 990 Eyewit ness t est imony indicat es t hat Khaled ‘Odeh was hit by a single bullet t hat ent ered his lower back. 991

984

985

986

987

988

ICTY, The Prosecutor v. Zejnil Delalic and Others, IT-96-21-A, Appeals Chamber Judgement of 20 February 2001, para. 422 OCHA Protection of Civilians Weekly Reports: 10-16, 17-23 and 24-30 June 2014; 1-7, 8-14, and 1521 July 2014; 22 July - 4 August 2014; 5-11, 12-18, and 19-25 August 2014 This refers to acts by settlers seeking to exact a "price" against Palestinians and their property in response to Israeli authorities’ attempts to dismantle settlement outposts.

E.g. OCHA Protection of Civilians Weekly Report, 12-18 August 2014. See also joint submission from Aldameer Association for Human Rights, Al-Haq, Al M ezan Center for Human Rights, and the Palestinian Center for Human Rights; A/HRC/28/80/Add.1, para. 22.

W209; OCHA Protection

ht t p://www.ochaopt.org/documents/ocha_opt_protection_of_civilians_weekly_report_2014 _8_08_english.pdf of Civilians Report, 22 July - 4 August 2014 989

990

W209; B’Tselem, 13 Palestinians killed by Israeli security forces in West Bank since Operation Protective Edge began: Excessive use of live fire suspected, 29 July 2014, at http://www.btselem.org/press_releases/20140729_13_palestinian_fatalities_since_gaza_operation_be gun (accessed on 15 M ay 2015) W209 suggests stone throwing followed the shooting, while OCHA suggests that the shooting preceded the shooting. See OCHA Protection

ht t p://www.ochaopt.org/documents/ocha_opt_protection_of_civilians_weekly_report_2014 _8_08_english.pdf of Civilians Report, 22 July - 4 August 2014. See also, B’Tselem, 13 Palestinians

991

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killed by Israeli security forces in West Bank since Operation Protective Edge began: Excessive use of live fire suspected, 29 July 2014, at http://www.btselem.org/press_releases/20140729_13_palestinian_fatalities_since_gaza_operation_be gun (accessed on 15 M ay 2015) W209; W018

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548. On 25 August 2014, Israel’s Civil Administration declared as St at e land some 4,000 dunams (990 acres) of land located wit hin t he boundaries of five Palestinian villages in t he Bet hlehem area. 992 Israeli media reported t hat the announcement followed a decision by the Israeli Government t o t ake over t he land in response t o t he abduct ion and killing of t he t hree Israeli youths. 993 According t o the Jerusalem Post, then Economy Minister Mr. Naftali Bennet t praised t he decision and said “What we did yest erday was a display of Zionism…Building is our answer t o murder.” 994 Once the process is complete,995 it appears t hat this land may be incorporated into the Gush Etzion settlement bloc, 996 where t he t hree Israeli yout hs were last seen before t heir abduct ion.

549. T he commission t akes not e of t he ext ensive mat erial available on vio lat ions of P alest inians’ human right s result ing from Israeli set t lement s and set t ler violence. 997 Moreover, it concurs wit h t he finding of t he UN Secret ary -General and ot her UN bodies t hat the construct ion and expansion of Israeli set t lement s are illegal under int ernat ional law. 998 In November 2014, the Human Rights Committee urged Israel t o “take all necessary measures t o prevent violence perpet rat ed by t he St at e part y’s set t lers and prot ect P alest inians effect ively when such violence occurs.” 999 Conclusion 550. During t he period under examination by t he commission, t he West Bank, including East Jerusalem, witnessed widespread human right s violat ions, including t he fundament al right t o life, which were overshadowed by t he t ragic event s in Gaza. T he commission considers t hat implement at ion of t he 2014 recommendat ions by t he Human Right s Committee cited above would represent a critical step towards ensuring t he non-repet it ion of t hese violat ions in t he fut ure.

VI.

Impact 551. “We should exist in this world in a spirit of cooperation, of l ove for life, of 1000 brotherhood.” Dr. Kamel Qdeih, a P alest inian doct or in Gaza 552. “As long as the people on the other side…don’t have security and a way to live si de by side, this is going to continue. I want to tell this to the leaderships of both sides. We need

992

993

994

995

996 997 998 999

1000

Peace Now, Unprecedented land confiscation of 4,000 dunams near Bethlehem, 31 August 2014, at http://peacenow.org.il/eng/GvaotDecleration (accessed on 31 M ay 2015) Haaretz, Israel appropriates massive tract of West Bank land, 31 August 2014, at http://www.haaretz.com/news/diplomacy -defense/.premium-1.613319#!

Jerusalem Post, Bennett: Building is Zionist answer to murder of 3 Israeli teens, 1 September 2014, at http://www.jpost.com/Arab-Israeli-Conflict/Bennett-praises-decision-to-expand-state-land-in-WestBank-Building-is-our-answer-to-murder-373087; see also quotes from several officials cited on Arutz Sheva on 4 September 2014, at http://www.inn.co.il/News/News.aspx/283300 (accessed on 28 M ay 2015) There is a process of endorsement, including a timeframe for the consideration of objections to the declaration and review of eventual p etitions to the Supreme Court. For more details, see A/HRC/28/44.

OCHA, Humanitarian Bulletin, monthly report, June - August 2014 E.g. A/HRC/28/44, paras 39-53.

See A/HRC/348 paras 4-5.

Human Rights Committee, Concluding observations on the fourth periodic report of Israel, CCPR/C/ISR/CO/4, para 16 W268.

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to achieve dignity and liberty for the other side as well”. An Israeli woman living near t he Green Line. 1001 553. “I see no difference between our blood and others’ blood. I believe peace will 1002 eventually win.” Israeli doct or from close t o T el Aviv.

554. “I am one of hundreds of Palestinian mothers who have lost their children. I lost my son Mohammad and he won’t come back from school to sing to me….I don’t want any other mother to go through what I went through”. Suha Abu Khdeir, mot her of a 16-yearold boy who was murdered by being burnt alive in West Jerusalem.

555. P alest inians and Israelis were profoundly shaken by t he event s of t he summer of 2014 and many wit nesses described t he t rauma t hat result ed from t he violence t hey experienced. In particular, children on both sides were savagely affected by t he events. As a result of t heir lengt hy displacement and fear of what t he fut ure would bring, many report edly suffered from bed-wet ting, shaking at night, clinging to parents, night mares and increased levels of aggressiveness. 1003

A.

Israel 556. “Thanks to our interceptor missile system, no physical damage was caused [to me], but the terrible feeling of running for your life cannot be intercepted or forgotten.”

1004 Resident of Oranit , Israel.

557. T he 2014 conflict caused immense dist ress and disrupt ion t o Israeli civilians, part icularly in the southern regions. T he commission received numerous oral and writ t en (101) t estimonies and complaints addressed t o t he Human Rights Council (85) from Israelis who were exposed t o t he t hreat of rocket and mort ar at t acks and assault s from t unnels 1005 during t he summer of 2014. The submissions recount t he dist ress and anger of Israel is who point out three mat t ers of part icular concern t o t hem: (i) t he t rauma caused by t he const ant threat of rocket at t acks, infilt rat ions and displacement ; (ii) insufficient t ime t o carry out effective emergency procedures during at tacks; and (iii) the adverse impact of t he conflict on local businesses and t he overall economy.

Psychological Impact 558. “We could live so happily but instead we have tunnels […]. There was a tunnel just behind the greenhouses. In a way, they are more scary than the rocke ts because with the tunnels, there’s no chance of being warned. Some people won’t let their children go outside 1006 because of that.”

559. “Children couldn’t speak, they were shaking at night, wetting the bed. Now, a lot of the children became more violent, they say it’s post-trauma, children don’t know how to cope with it.”1007

1001 1002 1003

1004 1005 1006 1007

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W010.

Submission 26.53.

Child Protection Working Group, Child Protection Rapid Assessment Report, October 2014 (available at http://cpwg.net/wp-content/uploads/sites/2/2015/03/Child-Protection-Rapid-Assessment_-Gaza_2014.pdf).

Email submission 26.15.

W073.

W010.

W076

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560. Many Israelis experienced what t hey describe as indelible suffering caused by t he const ant threat of attacks by Palestinian armed groups. T he st ress and t rauma had serious effect s on their well-being, particularly for persons who live in the south in areas near Gaza.

T he commission interviewed several witnesses who indicated t hat the sound of rockets, t he running t o bomb shelt ers and t he pervasive fear was seriously affecting t heir and especially t heir children’s wellbeing. A wit ness who lives about 1.7 km from the Green Line t old t he commission t hat, during t he height of the conflict, t he alarms would sound several t imes a day and t here would be on average six explosions a day 300 y ards from her house. She said t hat this was much more frequent bombing t han during previous hostilit ies. Alt hough t hey received warnings, t here was often not enough t ime to gat her the children and take them t o 1008 t he shelt er.

561. While t he fear of rocket and mortar strikes from Gaza has been long-st anding, 2014 was charact erized by t he discovery of tunnels. Witnesses report ed t o t he commission t hat inhabit ants interpreted any sound of digging in t he area near the Green Line as att empt s by members of armed groups t o infilt rat e Israel. Moreover, members of t he kibbut zim of sout hern Israel said t hat they regularly receive phone text messages from the IDF informing t hem of aborted infiltrat ion at t empt s int o t heir communit ies, and t hat t hese alert s have nurt ured a persist ent fear of potential attacks through t unnels linked to Gaza. For example, one wit ness t old t he commission t hat resident s of her kibbut z cont inued t o experience regular panic at t acks after a tunnel discovery not far from where t hey live in March 2 014, t he explosion of an alleged t unnel exit on 8 July, and several other infiltration attempts that 1009 were t hwart ed by t he army in July and August .

Anot her wit ness observed t hat “You kind of get used t o missiles and t hen there’s this fear that people will come from the ground and hurt you. It makes no sense. And now everyt hing is so quiet again and t hat ’s also 1010 st range.”

A mother described t o the commission t hat many of t he communit ies live in fear of t he tunnels and t hat during t he conflict t he people in her kibbut z at t imes received “infiltration warnings”. For instance, on one occasion she was walking t o t he kindergart en t o pick up her children when an Israeli soldier st opped her and t old her t o ret urn home because members of t he armed groups had come out of t he t unnels close t o t he kindergart en. The witness said she and t he other mothers ran to t he kindergarten and st ayed 1011 t here for 2-3 hours wait ing, in fear for t heir own and t heir children’s safet y.

562. An eyewit ness informed the commission that, on 30 July 2014, he personally saw a t unnel t hat runs bet ween t he Deir Al Balah Refugee Camp and Kibbut z Kissufim in 1012 sout hern Israel . According t o Israeli aut horit ies, t he IDF uncovered 32 t unnels during 1013 t he conflict , 14 of which penet rat ed Israeli t errit ory.

563. T he psychological impact of t he conflict on Israeli civilians is also manifest in numerous account s of anxiet y disorders t hat were brought t o t he at t ent ion of t he commission. Magem David Adom reports that 581 Israelis were t reated for anxiety at t acks 1014 during t he conflict , which placed t hese civilians at risk of mental healt h problems even aft er the end of host ilit ies. For example, a resident of Ashdod wrot e t o t he commission 1008 1009 1010 1011 1012 1013

1014

W006.

W075.

W007.

W006.

W072.

Israel, M inistry of Foreign Affairs, Israel’s Objectives and Phases of the 2014 Gaza Conflict, p. 8-12.

At: http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-andLegal-Aspects.aspx. Accessed 30 M ay 2015 M agen David Adom in Israel, Cease fire in Operation "Protective Edge" is holding M DA sums up 50 days of saving lives, 29 August 2014. At http://www.mdais.com/316/7004.htm.

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about t he way in which her fear of indiscriminate attacks significantly reduced her sense of 1015 safet y and well-being, making her “lose peace of mind and securit y of person” . T he psychological consequences reported in submissions from Israelis include fear, restlessness, decreased abilit y t o focus, P ost -T raumat ic St ress Disorder and ot her st ress-relat ed sympt oms. T hese effect s were especially observed in children, for whom t he summer holiday season became a daily st ruggle t o cope wit h t he anxiet y induced by t he sound of sirens. In one case, for example, a physician who lives in t he village of Savyon near T el Aviv reported that his 11 year-old girl became unable t o sleep or take showers unsupervised 1016 aft er she was t raumatized by t he sound of alarms in July and August 2014 . In anot her case, a nine-mont h-old baby, who was four-mont hs-old during t he conflict , developed a 1017 form of anxiety which made him panic at the sound of any alarm for months afterwards .

A wit ness t old t he commission t hat her t wo grown st epdaught ers were so t raumat ized by t he repeated conflicts that one suffered from epilept ic st yle seizures whenever she heard a 1018 rocket , while t he ot her suffered from severe anxiet y at t acks.

564. T he event s during t he host ilit ies pushed ent ire communit ies in sout hern Israel t o seek refuge in ot her parts of the country, and members of t hese communit ies were deeply affect ed by t heir experience of displacement. OCHA reports t hat 70 per cent of t he 40,000 resident s of t he Gaza rim left their homes during Operation Prot ect ive Edge. 1019 A wit ness 1020 said t hat up t o t en communit ies living along t he Green Line were displaced . T he populat ion of a kibbut z of 500 dwindled t o 15 during t he hostilities according t o a resident 1021 who spoke t o t he commission.

Another witness said t hat no more than 55 people out of a 1022 populat ion of 300 were left in a kibbut z at t he end of August 2014.

Children, part icularly t hose who live in areas neighbouring Gaza, suffered worse ment al healt h effect s t han adult s as a result of the displacement. According t o the Israeli aut horities, over 1023 20,000 children in sout hern communities migrated t o t he nort h during t he conflict .

A social worker who closely followed t hese children’s experiences of displacement reported a number of sympt oms, including rest lessness, lack of sleep, inabilit y t o concent rat e at 1024 school, and violent behaviour.

Wit nesses also informed t he commission t hat some children in t heir communities had t o undergo specialized treatment to cope wit h t he t hreat 1025 of displacement .

Some of the women interviewed by t he commission left t he sout hern region wit h t heir children to seek safety in nort hern Israel. During t he displacement t hey had t o rely on t he good will of relat ives, friends or st rangers for accommodat ion and assist ance. The situation was report ed t o have added t o t he burden of responsibilit ies on 1026 Israeli women.

For instance, a mother of three in Kibbut z Sa’ad relat ed t he fright ening experience of leaving her home wit h her children several t imes during t he summer,

1015 1016 1017 1018 1019

1020 1021 1022 1023

1024 1025 1026

150

Email submission in Hebrew number 31.

Email submission 26.53.

Email submission 26.23.

W006.

OCHA Occupied Palestinian Territory, Gaza Emergency Situation Report, 28 August 2014. At http://www.ochaopt.org/documents/ocha_opt_sitrep_28_08_2014.pdf W139.

W076.

Submission 24.2.7.

M inistry of Foreign Affairs, at http://mfa.gov.il/ProtectiveEdge/Documents/Threat_to_%20Home_Front.pdf.

W139.

W140.

W076, W006 and W008.

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especially during t he ground operat ions, when she st ayed wit h relatives and friends in other 1027 part s of Israel.

Emergency procedures 565. “The missile shield [Iron Dome] is a mixed blessing. It has saved lives but because there’s a shield the country cares less for small communities close to […Gaza] and cares more for bigger communities.[…] There are 100 000 Bedouins in Israel living in tin shafts.

They have no shelters. Israel did nothing to protect them. There should be a shield for these 1028 areas, like the shield for Tel Aviv.”

566. T he majority of rockets fired from Gaza during t he 2014 conflict were successfully 1029 int ercepted by Israel’s missile defence syst em, Iron Dome.

According t o t he IDF, t he syst em uses a combinat ion of radars and count eract ing missiles t o det ect rocket s fired at 1030 Israel and int ercept them at remote locations without creating any harm.

In addit ion t o Iron Dome, t he Israeli authorities adopted what they refer to as “passive defence measures”, which include a combinat ion of early warning sirens, public awareness campaigns on how t o respond t o the threat of terrorism, and t he construct ion of shelt ers in public and privat e 1031 sit es.

567. In some cases Israeli aut horities took st eps t o improve t he emergency preparedness of communit ies in the south. For example, a resident of Moshav Net iv Ha’Asara said t hat an “armoured pat rol vehicle was provided …by t he army [and] addit ional bomb shelt ers 1032 were inst alled for foreign workers near t heir workplaces.”

However, Israeli wit nesses t old t he commission t hat t he emergency response procedures t hat are applied in t heir communit ies leave them little time to make their way t o underground shelt ers or t o access safe rooms wit hin their homes during at tacks. In that context, Amnesty International found t hat “t he conflict provided renewed evidence t hat vulnerable communit ies in Israel, part icularly Bedouin villages in Israel’s sout hern Negev/Naqab region, many of which are 1033 not officially recognized by t he Israeli government , lacked prot ect ion.”

T he t ime available for civilians t o run for safet y decreases dramat ically in communit ies locat ed wit hin 2 km or less from the Green Line with Gaza t o less t han 30 seconds in most cases, 1034 and t o less t han 10 seconds in some . One of the witnesses t old t he commission that these emergency procedures have t urned into a form of “routine” for Israelis of t he sout h rat her

1027 1028 1029

1030

1031

1032 1033

1034

Email submission 26.59.

W006.

Ynetnews, Yoav Zitun, IDF: Iron Dome intercepted 90% of rockets, 15 August 2014, at http://www.ynetnews.com/articles/0,7340,L-4558517,00.html.See also: IAF website. Nadav Berger: The team that analyses the Iron Dome, 27 July 2014. At: http://www.iaf.org.il/4410-42214HE/IAF.aspx Israeli Defense Force, One year ago today, Iron Dome intercepts first ever rocket, 5 April 2012, at http://www.idf.il/1283-15558-en/Dover.aspx.

Israel, M inistry of Foreign Affairs, The Threat to Israel’s Civilian Population and Israel’s Civil Defence Measures, at http://mfa.gov.il/ProtectiveEdge/Documents/Threat_to_%20Home_Front.pdf.

Email submission 26.20.

Amnesty International: Unlawful and deadly: Rocket and mortar attacks by Palestinian armed groups during the 2014 Gaza/Israel conflict; 26 M arch 2015; at: https://www.amnesty.org/pressreleases/2015/03/palestinian-armed-groups-killed-civilians-on-both-sides-in-attacks-amounting-towar-crimes-during-2014-gaza-conflict/ Home Front command website. M ap of early warning alerts at: http://www.oref.org.il/1096en/Pakar.aspx

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t han an except ional measure, making everyday life in t heir communit ies part icularly 1035 challenging .

568. According t o Magen David Adom, 159 people were injured or t raumat ized as a 1036 result of st umbling or falling on their way to shelters.

Israeli aut horities report t hat t wo elderly women died as a result of heart failure while t rying t o seek cover in Haifa and 1037 Jerusalem . T he commission received writ t en submissions regarding t he experience of older persons in northern cities of Israel, where most people live in apart ment blocks, who suffered physical and ment al t raumas as t hey were making t heir way t o shelt ers. In one case, a vict im -- who refers to herself as an “old widow” living on her own -- said t hat she 1038 was not able t o leave her home in Sderot for a mont h out of fear.

In anot her, t he grandson of an 89 year-old holocaust survivor, who current ly lives in Ashkelon, said t hat his grandmot her had t o live t hrough an average of 5 sirens a day during t he summer and 1039 find a way t o a shelt er wit hin 15 seconds wit hout falling.

The son of a 92 year-old lady who resides in Bat Yam near T el Aviv described t hat his mot her had t o st ay put during 1040 at t acks, cry and pray for safety as she was t oo frail to even reach t he st aircase.

Similar experiences were reported for children who were unable t o reach shelt ers. For example, a resident of Kibbut z Be’erim in the Gaza rim told t he commission t hat her children had t o hide under t he st aircase and endure t he st ress of hearing sirens and loud explosions because 1041 15 seconds was not enough t ime for t hem t o move int o an underground shelt er.

Economic impact 569. According t o t he Bank of Israel, Operation Protective Edge caused a cont ract ion of out put in t he t ourism and manufact uring sect ors of about 903 040 000 USD (3.5 billion 1042 NIS), which represents 0.3 per cent of Israel’s GDP .

T his, t he Bank of Israel says, is comparable t o the loss incurred during t he 2006 Lebanon war. The Israeli authorities report t hat as of 28 January 2015, 4550 claims for compensation for direct damages, including t o schools and houses, had been filed wit h t he tax authority. The tax authority est imat es t hat t ot al compensat ion for direct damages will reach approximat ely USD 25 million (100 1043 million NIS). Indirect damage is est imat ed at 440 000 000 USD (1.7 billion NIS) .

570. Some sout hern Israeli communit ies bore more significant economic cost s of t he conflict t han ot hers; t hese cost s were somet imes devast at ing for businesses t hat were obliged t o invest in expensive security equipment and in psychological counselling for their 1044 workers . T he commission learned, for inst ance, t hat t he risk of conflict cont inues t o

1035 1036

1037

1038 1039 1040 1041 1042

1043

1044

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M agen David Adom in Israel, Cease fire in Operation "Protective Edge" is holding M DA sums up 50 days of saving lives, 29 August 2014. At http://www.mdais.com/316/7004.htm.

Israel, M inistry of Foreign Affairs, The Threat to Israel’s Civilian Population and Israel’s Civil Defence Measures, at http://mfa.gov.il/ProtectiveEdge/Documents/Threat_to_%20Home_Front.pdf.

Complaints LB68 and LB69 to the HRC. Email submission 26.18.

Email submission 26.4 and 26.5.

Submission 26.58.

Bank of Israel, Excerpt from the "Bank of Israel – Annual Report for 2014" to be published soon: The effect of military conflicts on economic activity , 15 M arch 2015. At http://www.bankisrael.gov.il/en/NewsAndPublications/PressReleases/Pages/16-03-2015M ilitaryConflicts.aspx.

Israel, M inistry of Foreign Affairs, Hamas’ Violations of the Law; p.4. http://mfa.gov.il/M FA/ForeignPolicy/IsraelGaza2014/Pages/2014-Gaza-Conflict-Factual-and-LegalAspects.aspx, accessed on 19 M ay 2015.

W140.

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prevent economic actors from investing in t he sout hern region of Eshkol .

One of t he wit nesses who lives in a kibbut z of 500 individuals at 1.7 km from Gaza said t hat t he local 1046 clot h factory stopped receiving orders during t he conflict.

Another witness reported t hat t hree migrant workers in her farming community left their jobs in t he summer 2014 as t hey 1047 believed t hat t he area was unsafe .

571. T he commission received writ t en affidavit s and more t han 100 phot ographic mat erials depict ing t he damage incurred t o buildings, cars and livest ock in sout hern communit ies as a result of mort ar at t acks. In one t est imony t he wit ness, who chairs t he emergency t eam of his kibbut z of 300, said t hat 50 out of 160 houses were damaged by 1048 debris and milk product ion decreased during t he conflict . Another wit ness who lives in kibbut z Nir-am said t hat her photography business in Beer Sheva st opped during t he war as she was t oo afraid t o t ake public t ransport , which made her run int o debt t oget her wit h 1049 many ot her members of t he kibbut z .

572. T he t est imonies furt her highlight t he int erdependence bet ween t he social and economic fabrics of Gaza and Israel. For example, some of the Israeli witnesses and victims said t hat t hey were in cont act wit h civilians in Gaza t hroughout t he conflict and t hey 1050 exchanged expressions of support by t elephone and on social media . T hese cont act s const it ute evidence of the fact that the conflict severed human and economic t ies t hat had exist ed prior t o t he escalat ion of violence and t he blockade t hat ensued in 2007 (many P alest inian men in Gaza who spoke t o t he commission ment ioned t hat t hey – or t heir fat hers – had worked at some point in t heir lives in t he sout hern regions of Israel).

B.

Gaza 573. “Behind the figures lie multiple individual destinies now torn apart, a reality no 1051 number can translate.” Pierre Kraehenbuehl, Commissioner-General of UNRWA Right to life and security 574. In Gaza, t he scale of the devastation was unprecedent ed. The death toll alone speaks volumes: 2 251 P alest inians were killed, including 1462 P alest inian civilians wit h 299 1052 women and 551 children.

11 231 P alest inians, including 3540 women and 3 436

1045 1046 1047 1048 1049 1050 1051

1052

W141.

W009.

W010.

Submission 24.2.7.

Email submission 26.51.

W009.

UNRWA. Commissioner General press briefing on the situation in Gaza Strip; 14 July 2014; at: http://www.unrwa.org/newsroom/official-statements/commissioner-general-press-briefing-situationgaza-strip United Nations Protection Cluster figures of 31 M ay 2015. The Protection Cluster is the mechanism for coordinating humanitarian action by humanitarian organizations (UN and non-UN) working in the protection sector. It is one of several such sectoral clusters. OHCHR leads the Protection Cluster in the OPT. OHCHR compiled figures on fatalities in its capacity as leader of the Protection Cluster.

The methodology used involves the compilation of initial reports of fatalities from the media and other sources which are then crosschecked and verified in collaboration with a number of international, Palestinian and Israeli partner organizations. Where available, each individual’s name, age, sex and place of death is determined, as well as their status as a civilian or combatant where possible. M ultiple sources are cross-referenced, not only from media and various human rights organizations, but also information released by the IDF and by the Palestinian armed groups

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children, were injured wit h almost 10 per cent suffering permanent disability as a result.

While t he casualt y figures gat hered by t he UN, Israel, P alest ine and non -government al organizat ions differ, regardless of the exact proportion of civilians to combat ant s, t he high incidence of loss of human life and injury in Gaza is heart-breaking; all t he more so in t he many cases in which several family members died t oget her.

575. Remnant s of war continue to pose risks to life and physical securit y: t he UN Mine Act ion Service (UNMAS) est imated t hat a minimum of 7000 explosive it ems wait t o be recovered, including unexploded aircraft bombs. According t o OCHA, in 2014, explosive remnant s of war (ERW) accidents caused 10 fat alities and 23 injuries, especially affect ing 1054 male yout hs.

Many of the ERW are likely to be in abandoned shelt ers, dest royed homes, schools and ot her public and government infrast ruct ures.

Right to housing 576. Alongside t he t oll on civilian lives, t here was enormous dest ruct ion of civilian 1055 propert y in Gaza: 18 000 housing unit s were dest royed in whole or in part .

According to t he Office of the Special Coordinator for the Middle East P eace P rocess, an est imat ed 80 1056 000 homes and properties need t o be rehabilitated.

These “housing unit s” were not only t he monetary equivalents of material investments. Many of t hem were homes. Obviously, owning a home is direct ly linked to the human rights to adequat e housing and property, but losing a home also impact s on t he enjoyment of a wide range of ot her human right s, including securit y, sanitation and health, privacy and family life. Moreover, having a home has an emot ional dimension – the place where memories are stored – and oft en many ot her it ems t o which inhabit ant s’ memories relat e. Having one’s home dest royed or severely damaged means being deprived of more t han a physical st ruct ure; it also direct ly impact s on t he very essence of one’s exist ence.

577. At t he height of last summer’s hostilities, the number of internally displaced persons reached 500 000, which is equivalent to 28 per cent of t he populat ion. Many people were uproot ed from their homes or temporary shelters multiple times. They had t o cope wit h t he st ress and panic associat ed wit h feeling t rapped and having no safe place to go. Many fled t o t emporary shelt ers which were severely overcrowded and lacked adequat e sanit ary condit ions. T he incident s involving UNRWA shelt ers and result ing deat hs and injuries furt her compounded t he lack of safet y and secur it y.

578. T he end of t he host ilit ies did not necessarily mean respit e: t emporary and oft en inadequat e accommodat ion arrangement s offered lit t le prot ect ion during t he wint er,

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regarding the identity of combatants. Information from the M inistry of Health in Gaza is one, but not an exclusive, source of information. Verification of the information collected is continuing. Figures are published on the website of OCHA on behalf of the Protection Cluster.

Palestinian M inistry of Health, quoted in A/HRC/28/80/Add.1, para. 24.

OCHA Fragmented Lives. Humanitarian Overview 2014. M arch 2015.At http://www.ochaopt.org/documents/annual_humanitarian_overview_2014_english_final.pdf; See also report by Handicap International, Bombs under Rubble, January 2015, at: https://d3n8a8pro7vhmx.cloudfront.net/handicapinternational/pages/1949/attachments/original/14212 65536/HI_Report_Gaza_Bombs_under_Rubble.pdf?1421265536.

OCHA, Gaza Initial Rapid Assessment, 9 September 2014; at: http://www.ochaopt.org/documents/gaza_mira_report_9september.pdf, p. 4.

UNSCO, Fact sheet Gaza Reconstruction M echanism. October 2014; at: http://www.unsco.org/Gaza%20Reconstruction%20M echanism%20Fact%20Sheet%209%20October %202014.pdf

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result ing in t he deat hs of at least four children. 1057 In May 2015 – many mont hs aft er t he violence had ended, about 100 000 people remain displaced in t he Gaza St rip, according t o OCHA est imat es. 1058 579. In t erms of the process of reconstruct ion, the Office of t he Special Coordinat or for t he Middle East P eace P rocess report ed in May 2015 t hat around 85 per cent of t he 1059 households in need of const ruction materials had received materials.

However, OCHA report ed in April 2015 that reconstruct ion of six complet ely dest royed schools and eleven kindergart ens had not yet begun, and t he rehabilit at ion of seven Minist ry of Healt h 1060 hospit als and 12 clinics had been slow.

While t here has been some progress in facilit ating reconstruction through t he creation of t he “Gaza Reconst ruct ion Mechanism” (GRM), creat ed in Sept ember 2014 with a view t o rehabilit at ing houses and infrast ruct ure damaged during t he 2014 host ilit ies, it has been far t oo slow and woefully inadequat e t o address t he immense needs in Gaza. The mechanism has been criticized for granting Israel considerable cont rol over t he ent ry of humanit arian assist ance, while hampering t he P alest inian authorities from assuming t heir responsibility as dut y bearers and impeding t he 1061 UN’s funct ion as a neut ral facilit at or and humanit arian act or.

Electricity, water and sanitation 580. “If there’s no electricity, there’s no water.” Int ernat ional Commit t ee of t he Red 1062 Cross (ICRC) 581. T he Gaza St rip has one power plant that normally supplies about 30 per cent of t he electricity in t he strip, the remaining being provided from Israel and E gypt . Under normal 1063 circumst ances, the three sources provide for half of Gaza’s overall electricity needs.

The power plant was t he subject of several at t acks in July 2014, and had t o shut down on 29 July as a result of an explosion of one of its fuel tanks following a hit by shells, as furt her elaborat ed above (see chapt er V.A.4).

582. As a result of t hat at t ack, and of damage t o t he elect ricit y infrast ruct ure more generally, including t ransmission and dist ribut ion lines, cabling, elect ricit y poles and 1064 t ransformers, Gaza experienced power out ages of 22 hours a day during t he

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Shelter cluster report p.3. Confirmed by World Health Organization; at: http://www.maannews.com/eng/ViewDetails.aspx?id=752862.

OCHA, Protection of civilians weekly highlights; Reporting period 28 April – 4 M ay 2015, at: http://www.ochaopt.org/poc28april-4may.aspx.

UNSCO Fact sheet Gaza Reconstruction M echanism. October 2014; at: http://www.unsco.org/Gaza%20Reconstruction%20M echanism%20Fact%20Sheet%209%20October %202014.pdf.

OCHA Humanitarian Bulletin. April 2015, at: http://www.ochaopt.org/documents/ocha_opt_the_humanitarian_monitor_2014_05_29_english.pdf.

Submission 11.4 Euro News, ICRC criticises attack on Gaza power plants, 31 July 2014, at http://www.euronews.com/2014/07/31/international-committee-of-the-red-cross-criticises-attacks-ongaza-power-/.

OCHA, Gaza Crisis Appeal; at: http://www.ochaopt.org/documents/gaza_crisis_appeal_9_september.pdf UNDP, Detailed Infrastructure Damage Assessment, Gaza 2014. 28 November 2014. At http://www.ps.undp.org/content/dam/papp/docs/Publications/UNDP-papp-researchdammageassessment2014.pdf. Bellow referred to as UNDP, Detailed Infrastructure Damage Assessment, November 2014.

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host ilities.

This acut e shortage of power forced hospitals t o operate at limit ed capacit y; led t o a drast ic reduct ion in the pumping of wat er to households; and affect ed desalinat ion 1066 plant s and sewage t reat ment, which significant ly impact ed on a wide range of human right s, in particular the rights to health, wat er and sanitation. At the time, OCHA announced 1067 t hat Gaza was on “t he brink of a public healt h crisis”.

583. In t he medium t erm, t he ext ensive damage t o t he elect ricit y infrast ruct ure is est imat ed t o have increased t he pre-exist ing elect ricit y deficit by almost 20 per cent , 1068 reaching about 65 per cent.

According t o reports from December 2014, 15–20 per cent of t he Gaza populat ion had no access t o elect ricit y. T he subst ant ial short fall in power supply cont inues t o undermine t he living condit ions of people in Gaza, affect ing t he 1069 delivery of wat er supply, and wast ewat er t reat ment , as well as livelihood and healt h.

584. Wat er and sanit ation facilities in Gaza were also heavily affect ed by t he escalat ion 1070 of violence wit h 63 wat er facilities damaged and 23 complet ely dest royed. Key sewage facilit ies were partially dest royed, including 60 per cent of the treatment plants, 27 per cent of t he pumping st at ions, and 33 000 met ers of wat er and wast ewat er net works were damaged1071 . In lat e August 2014, OCHA report ed t hat about half a million people were 1072 direct ly affected by damage t o wat er facilities, and one million by damage t o wastewater 1073 facilit ies.

In December 2014, wat er supply remained irregular for 20 per cent of people 1074 wit h int erruptions at times lasting for five days.

As a result , many families had t o rely 1075 on wat er t ankers for t heir wat er supply.

Overall, wat er-relat ed cost increased, and doubled in some areas, decreasing access t o drinking wat er of already vulnerable 1076 families.

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OCHA, Gaza Crisis Appeal; at: http://www.ochaopt.org/documents/gaza_crisis_appeal_9_september.pdf. According to the report Divide and Conquer by Al Haq, outages lasted about 18 hours per day.

Human Rights Watch, Widespread impact of power plant attack, 10 August 2014, at : http://www.hrw.org/news/2014/08/10/gaza-widespread-impact-power-plant-attack , OCHA, Gaza Crisis Appeal, at: http://www.ochaopt.org/documents/gaza_crisis_appeal_9_september.pdf and ICRC, Gaza: Power plant destroyed, electricity and water supplies collapse; 30 July 2014 at: https://www.icrc.org/en/document/gaza-power-plant-destroyed-electricity-and-water-suppliescollapse.

OCHA, Gaza Crisis Appeal, 9 September 2014; at http://www.ochaopt.org/documents/gaza_crisis_appeal_9_september.pdf UNDP, Detailed Infrastructure Damage Assessment, November 2014.

UNDP, Detailed Infrastructure Damage Assessment, November 2014.

World Bank. Gaza: Fact sheet August 1, 2014; at: http://www.worldbank.org/content/dam/Worldbank/gaza-fact-sheet-final140801-ECR.pdf Gisha. Water officials in Gaza: 40% of the population with no access to running; at: gisha.org/updates/3363. A/HRC/28/80/Add.1.

According to UNDP, 97 per cent of the population had access to safe water supply networks prior to the war. However, OCHA reported that in 2013 only one quarter of the households in Gaza received running water every day, during several hours only. See UNDP, Detailed Infrastructure Damage Assessment, November 2014 and OCHA, The Gaza Strip: the Humanitarian Impact of M ovement Restrictions on People and Goods, July 2013. At http://unispal.un.org/unispal.nsf/3822b5e39951876a85256b6e0058a478/c01b65b9607d31fb85257b9d 0046a70a?OpenDocument#sthash.7ZpapT5l.dpuf OCHA, Gaza Initial Rapid Assessment; 27 August 2014; at: http://www.ochaopt.org/documents/gaza_mira_report_9september.pdf UNDP, Detailed Infrastructure Damage Assessment, November 2014.

UNDP, Detailed Infrastructure Damage Assessment, November 2014.

Submission 43.5.

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Right to education 585. Gaza’s educat ion sect or was already overstret ched prior t o t he host ilit ies – wit h a short age of 200 schools in 2014, and almost 80 per cent of school classes running double 1077 shift s . T he dest ruct ion of, and damage t o 209 schools as a result of t he conflict 1078 exacerbat ed t hese deficits.

Three universities are report ed t o have been direct ly hit by Israeli st rikes, while eight sust ained collateral damage. 1079 274 kindergartens were damaged 1080 and 11 were dest royed.

Overall, t he qualit y of educat ion in Gaza is report ed t o have 1081 worsened, because classes are now larger, t he t ime spent at school short er and 1082 psychological and economic challenges are considerable, according t o UNFP A. Right to an adequate standard of living 586. Many of t he commission’s interlocutors, when interviewed bet ween November 2014 and February 2015, gave account s of on-going displacement , loss of jobs as a result of injury, and loss of livelihoods. T hese individual st ories lie behind t he figures: 587. The World Bank recently described the impact of the 2014 hostilities on Gaza’s economy as follows: “Gaza Economy on the Verge of Collapse, Youth Unemployment Highest in the Region at 60%.” The report describes how blockades, wars and poor governance have strangled Gaza’s economy, noting that the unemployment rate is now the highest in the world.1083 The report highlights the loss of economic capacity due to repair costs and the effects of the damaged infrastructure, loss of investor confidence, and an increasing trade deficit.1084 Moreover, many inhabitants of Gaza had their agricultural lands damaged.1085 Power and fuel shortages led to many facilities being forced to susp end production, which in turn led to the dismissal of workers. Combined with the fact that the economy was in dire straits already before the 2014 hostilities, including as a result of the blockade, these factors result in 39 per cent of the population liv ing below the poverty line,1086 which in turn impacts on the enjoyment of a wide range of human rights of the people in Gaza, including the rights to food, work, health, water and sanitation.

588. Food insecurity increased during the conflict and in its aftermath. According to FAO, almost the entire population of Gaza was dependent on food aid during the

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1079 1080 1081

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OCHA, Situation report, 4 September 2014.

OCHA, Occupied Palestinian Territory Gaza emergency Humanitarian Snapshot; as of 25 August 2014; at: http://www.ochaopt.org/documents/humanitarian_snapshot_25_august_2014_opt_v4.pdf A/HRC/28/80/Add.1 Submission 43.2.

Submission 34.2-3.

90% of UNRWA schools and 85% of public schools are operating on double shifts across the Gaza strip, and 2 UNRWA schools in Gaza city were operating on triple shifts. This means that children would spend only between 2.5 to 4.5 hours per day in the school. Information provided by the Education Cluster coordination. And http://www.ochaopt.org/documents/humanitarian_snapshot_25_august_2014_opt_v4.pdf OCHA, 2015 Strategic Response Plan oPt. At https://www.ochaopt.org/documents/srp_2015.pdf.

Below referred to as OCHA, 2015 Strategic Response Plan oPt. The World Bank, Gaza Economy on the Verge of Collapse, 21 M ay 2015, at: http://www.worldbank.org/en/news/press-release/2015/05/21/gaza-economy-on-the-verge-of-collapse The World Bank, Economic M onitoring Report to the Ad Hoc Liaison Committee, M ay 27, 2015, paras. 6, 28 and 44.

Food and Agriculture Organization (FAO), Gaza: Damage to agriculture will have long lasting ffects; 14 August 2014; at: www.fao.org/news/story/en/item/240924/icode/.

The World Bank, Economic M onitoring Report to the Ad Hoc Liaison Committee, M ay 27, 2015, par. 39.

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conflict.1087 While the estimated figures for food insecurity and persons depending on food aid has returned to a level similar to the period prior to the conflict, reaching about 57 per cent and 80 per cent respectively,1088 this is partially due to increased imports by the private sector and the United Nations 1089 and aid inflows into Gaza.1090 The output from the agriculture sector is estimated to have been reduced by 32 per cent compared to 2013. 1091 In this context, it should be recalled that the right to food is not primarily about food aid; it is rather about being able to feed oneself through an adequate liv elihood.

589. As an immediat e consequence of t he host ilit ies, unemployment was est imat ed t o amount t o 47.4 per cent in t he t hird quart er of 2014, 1092 and 42.8 per cent in t he fourt h quart er, 1093 on average 11 per cent higher than before. 1094 According t o t he World Bank, unemployment in the Gaza St rip is now t he highest in the world. 1095 Yout h unemployment rat es more t han doubled in t he second quart er of 2014 compared t o t he previous year, reaching about 67 per cent . 1096 Right to health 590. Medical problems are more than the problems facing hospitals. It is difficult to maintain health without work, proper housing, food security, safe water and human 1097 security.” Dr. Mads Gilbert , a Norwegian doct or working in Gaza during t he hostilities.

591. While access t o health care in Gaza was precarious even before the 2014 escalat ion – mainly as a result of restrictions imposed by t he blockade – the fighting further weakened t he medical infrastructure 1098 : one hospital and 5 primary health care clinics were dest royed and 15 hospit als and 51 clinics sust ained damage, while t ens of ambulances were rendered useless and healt h care personnel were decimat ed. T he host ilit ies also furt her reduced access t o healt h care of persons wit h serious or chronic illnesses. T he number of people 1087

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FAO, Gaza: Damage to agriculture will have long lasting effects; 14 August 2014; at: www.fao.org/news/story/en/item/240924/icode/.

OCHA, 2015 Strategic Response Plan oPt.. In July 2013, 57% of Gaza households were food insecure and about 80% relied on food aid. http://unispal.un.org/unispal.nsf/3822b5e39951876a85256b6e0058a478/c01b65b9607d31fb85257b9d 0046a70a?OpenDocument.For numbers in 2013 see also http://unispal.un.org/unispal.nsf/3822b5e39951876a85256b6e0058a478/c01b65b9607d31fb85257b9d 0046a70a?OpenDocument and http://documents.wfp.org/stellent/groups/public/documents/ep/wfp270840.pdf.

Office on the United Nations Special Coordinator for the M iddle East, Report to the Committee, Brussels, 27 M ay 2015, par. 66.

The World Bank, Economic M onitoring Report to the Ad Hoc Liaison Committee, M ay 27, 2015, par. 7.

The World Bank, Economic M onitoring Report to the Ad Hoc Liaison Committee, M ay 27, 2015, par. 2.

Office on the United Nations Special Coordinator for the M iddle East, Report to the Committee, Brussels, 27 M ay 2015, par. 24.

UNRWA. Gaza refugee women: A life of many faces, 1 April 2014, at: http://www.unrwa.org/galleries/photos/gaza-refugee-women-life-many-faces.

The World Bank, Economic M onitoring Report to the Ad Hoc Liaison Committee, M ay 27, 2015, par.4. Compare numbers in July 2013 at http://unispal.un.org/unispal.nsf/3822b5e39951876a85256b6e0058a478/c01b65b9607d31fb85257b9d 0046a70a?OpenDocument.

The World Bank, Economic M onitoring Report to the Ad Hoc Liaison Committee, M ay 27, 2015, p.

5.

OCHA, 2015 Strategic Response Plan oPt. W123.

Gaza Strip, Joint Health Sector Assessment Report, September 2014.

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wit h permanent or long-term disabilities has increased; preliminary estimat es indicat e t hat up t o one t housand children will be permanent ly disabled as a result of t he host ilit ies in 1099 2014.

592. T he commission also not es t hat t he complicat ed mechanisms for t he referral of 1100 pat ients abroad aggravat e the sit uat ion.

While t he number of people who are grant ed permission t o leave Gaza has increased, t he number of request s has doubled from 32,827 (March-Sept ember 2014) t o 60,998 (Oct ober -March 2015). T he percent age of persons 1101 whose request s were denied has increased by 6.1 per cent .

593. “Children are afraid to die; they ask all the time if there will be another war.” Dr. 1102 Mona El Farra, a P alest inian doct or in Gaza 594. Apart from significant limitations on access t o health care, the events of the summer of 2014 also left deep marks in terms of trauma: many of the wit nesses int erviewed by t he commission described a profound sense of hopelessness brought on by t he experience of deat h, injury, dest ruction and/or loss of t heir homes, furt her exacerbat ed by t he mult iple displacement s and, often, the current lack of prospects. P ost -t raumat ic st ress disorder and 1103 ot her st ress-related symptoms have increased, and about 20 per cent of t he populat ion 1104 are est imated t o be in need of long-term mental health assistance , among t hem at least 1105 373,000 children.

According to the United Nations Children’s Fund, in Gaza, more than 1106 1,500 children have been orphaned.

In some cases wit nesses reported t hat children, even t eenagers, had urine retention problems and woke up screaming during t he night. A n int eragency Child P rotection Rapid Assessment conduct ed among displaced families in Gaza in t he aft ermath of the conflict described t he prevalence of night mares and various levels of 1107 eit her apat hy or aggressiveness and violence t owards ot her children.

595. T he World Health Organization’s mental healt h program coordinat or in Gaza, Dr. Dyaa Saymah, t old t he commission t hat t he current t rauma response in Gaza was, “scat tered and short term funded,” while rehabilit at ion should be a long-t erm undert aking 1108 t hat requires sust ained funding.

He added: “… accumulated exposure to traumatic experiences can cause a sign ificant change in personality: how they perceive the outside world, how they perceive their moral system, how such accumulative exposure to trauma can affect their future directions in their lives.

There is also a risk of trans-generational trauma. That means the trauma experienced as children impacts on how as adults they perceive their future, how they will raise their own children and tell their story to their children. Their children will be affected by this. It is like a revolving door”.

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A/69/926-S/2015/409, para. 88.

OCHA, 2015 Strategic Response Plan oPt. Office on the United Nations Special Coordinator for the M iddle East, Report to the Committee, Brussels, 27 M ay 2015, par. 68.

W032.

The World Bank, Economic M onitoring Report to the Ad Hoc Liaison Committ ee, M ay 27, 2015, par. 39.

Interview with WHO mental health program coordinator and Chief of UNICEF Gaza office. See also Joint Health Assessment report, October 2014 and OCHA, 2015 Strategic Response Plan oPt. OCHA, 2015 Strategic Response Plan oPt. United Nations Children’s Fund. State of Palestine, Humanitarian Situation Report, 23 October 2014 (http://available at www.unicef.org/mena/UNICEF_SoP_SitRep_23_October_2014.pdf), p. 1.

Child Protection Working Group (CPWG) assessment report, October 2014.

W106.

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Groups at particular risk 596. T he commission observes t hat t he above human right s rest rict ions have different impact s on groups wit h particular vulnerabilities. For instance, people wit h disabilit ies may suffer t o a significantly larger extent from restrictions on access to health care t han ot hers; children are particularly vulnerable t o obst acles in accessing educat ion; women and girls, especially in t he context of Gaza, may be more exposed t o violence and loss of privacy than men and boys as a result of t he loss of homes and displacement . Widows – almost 800 women were widowed last summer – are reported to face particular challenges.1109 Many of t hem face discriminat ion, as well as economic and social marginalizat ion. 1110 Many depend on male family members in terms of income and housing. 1111 Not ably, t he risk of losing cust ody of t heir children on t he basis of discriminat ory laws allegedly forced some women widowed during last year’s host ilit ies t o marry t he brot her of t heir deceased husband. 1112 Summary analysis 597. T he 2014 hostilities have had an enormous impact on t he lives of P alest inians and Israelis. The scale of the devast at ion was unprecedent ed and t he deat h t oll and suffering from injuries and t rauma speak volumes.

598. T he impact of the 2014 host ilit ies on t he Gaza st rip cannot be assessed separat ely from t he blockade imposed by Israel. In part icular, t he dest ruct ion and damage brought about by t he escalat ion of violence last summer pose significant challenges t o t he enjoyment of the rights to an adequat e st andard of living, housing, food, wat er, sanit at ion, healt h and educat ion of the population of Gaza. T he damage t o elect ricit y infrast ruct ure, crit ical for power supply and a whole range of services, including health services, water and sanit at ion has been devast ating for t he enjoyment of human rights in the short, medium and long-t erm. The continuing displacement of some 100 000 people deprives many of privacy, family life and may have consequences for physical securit y.

599. In accordance wit h internat ional human right s law, all part ies have obligat ions t o respect and t ake steps towards ensuring t he realization of t hese rights, including Israel, t he St at e of P alestine, the authorities in Gaza and t he int ernat ional communit y. All relevant dut y bearers and ot her st akeholders, including humanit arian agencies, NGOs and int ernat ional donors must ensure t hat t he relief and reconst ruct ion effort s are based on human right s. In t hat cont ext , while fully aware of t he need for Israel t o address it s securit y concerns, the commission believes that the Gaza Reconstruct ion Mechanism, put in place wit h t he assistance of the Unit ed Nat ions t o accelerat e effort s t o rebuild dest royed houses and infrast ruct ure, is not a subst it ut e for lift ing t he blockade.

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Al M ezan, Press Release on Women’s International Day, 7 M arch 2015, at http://www.mezan.org/en/post/20091/On+International+Women's+Day+Al+Mezan+Calls+for+Prote ction+and+Respect+for+Women's+Rights+in+Palestin.

Submission from UN Women; meetings with women’s rights representatives on 2 and 11 December 2014; interview with W233. The Commission also received a submission from the Palestinian Working Women’s Society for Development, including affidavits, as well as women who lost their spouses as a result of the conflict.

Norwegian Refugee Council, Women’s Housing, Land, and Property Rights in the Gaza Strip Information, 2013, http://www.nrc.no/arch/_img/9188182.pdf.

Excerpt from an interview with a local women’s rights representatives in Gaza interviewed by the Commission, W233.

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600. Ensuring account abilit y and guarant eeing t he right s of all vict ims t o an effect ive remedy will be a core prerequisit e for breaking t he cycle of violence and securing a life of peace and dignit y in t he region.

VII.

Accountability 601. T his chapter examines the issue of accountability for victims of serious violations of int ernat ional humanit arian law and gross violat ions of int ernat ional human right s law alleged t o have occurred during t he period under examinat ion by t he commission.

International legal framework 602. Israeli and P alestinian authorities have an obligation to investigate alleged violations of int ernat ional humanit arian law and int ernat ional human right s law and t o hold account able t hose responsible, as set out in t he r espect ive bodies of law. 1113 In order t o meet t his obligat ion, St ates should init iate a range of accountability mechanisms, including: criminal proceedings against suspect ed perpet rat ors of alleged serious violat ions of int ernat ional law, including int ernat ional criminal law; disciplinary measures; and commissions of inquiry. Using complementary measures can contribut e to efforts to ensure t hat all alleged violations are met wit h an appropriat e response; t hat fut ure violat ions are prevent ed; and t hat vict ims’ right s are respect ed. 1114 603. In sit uat ions of armed conflict, including occupat ion, the authorities are required, at t he very least, to “provide effective penal sanctions for persons committ ing, or ordering t o be commit t ed, any of t he grave breaches” of t he Geneva Convent ions1115 and ot her violat ions of international humanitarian law t hat amount to war crimes. 1116 In the context of law enforcement operations, at a minimum, St ates must investigate alleged violations of the right t o life, resulting from use of force by St at e agents or where the responsible part y may be a St at e agent , in accordance wit h int ernat ional human right s law. 1117 Int ernat ional humanit arian law holds commanders and ot her superiors criminally responsible for war crimes committed by t heir subordinat es if they “did not t ake all necessary and reasonable measures in t heir power to prevent their commission, or if such crimes had been committed, t o punish t he persons responsible.” 1118 T his is known as t he doct rine of command or superior responsibilit y.

604. In relat ion to the dut y to investigate, human rights treaties, guidelines and principles elaborat e st andards against which invest igat ions are evaluat ed in order t o det ermine compliance wit h the law. Thus, invest igat ions are assessed against t he following crit eria: independence; impartiality; thoroughness; effectiveness; and promptness; 1119 t ransparency is also an increasingly import ant element . 1120

1113

1114

1115 1116 1117 1118 1119

Art. 2, International Covenant on Civil and Political Rights; Human Rights Committee General Comment No. 31, 2004; First Geneva Convention, art. 49, Second Geneva Convention, art. 50, Third Geneva Convention, art. 129, Fourth Geneva Convention, art. 146.

E.g Cohen and Shany, Beyond the grave breaches regime: the duty to investigate alleged violations of international law governing armed conflicts, 2012, section 5.

Art. 146, Geneva Convention IV. The grave breaches are defined in art. 147 See for example, art. 85 of Additional Protocol I and art. 8, Rome Statute of the ICC. E/CN.4/2006/53, para. 35 ICRC, Database Customary International Humanitarian Law, Rule 153 For more details on these criteria, see A/HRC/15/50, paras 20-25, and The Public Commission to Examine the M aritime Incident of 31 M ay 2010 - Second Report – The Turkel Commission: Israel’s M echanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of

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605. While int ernat ional humanit arian law does not elaborat e t he same level of det ail concerning investigations, these human rights standards apply at all t imes, including during sit uat ions of armed conflict. 1121 During act ive hostilities, there are circumstances t hat may const rain the ability of a St at e to fully meet t hese st andards. Such circumst ances should be assessed on a case-by-case basis and may affect t he manner in which an invest igat ion is carried out , but do not discharge t he aut horit ies from t heir dut y t o invest igat e in a meaningful way. 1122 Fort unately, in practice, St at es increasingly endeavour t o meet t hese human right s st andards when conduct ing investigat ions in relat ion t o sit uat ions of armed conflict . 1123 606. Int ernat ional human right s law furt her set s out t he obligat ion t o ensure t hat individuals have accessible and effect ive remedies, including compensat ion , for gross violat ions of int ernat ional human right s law and serious violat ions of int ernat ional humanit arian law. 1124 Remedies include t he victim’s right to: (a) Equal and effective access t o just ice; (b) Adequat e, effective and prompt reparation for harm suffered; and (c) Access t o relevant information concerning violations and reparation mechanisms. 1125 Reparat ions include t he following forms: rest it ut ion, compensat ion, rehabilit at ion, sat isfact ion and guarant ees of non-repet it ion. 1126 Sat isfact ion includes a range of measures, inter alia: measures aimed at t he cessation of continuing violations; verificat ion of t he fact s and full and public disclosure of t he t rut h; a public apology; and legal reform. 1127

A. 1.

Israel Accountability mechanisms by Israel 607. T he MAG is at t he heart of Israel’s invest igat ion syst em, as det ailed by t he UN committee of independent experts in its 2010 report. 1128 The MAG is a cent ral component of t he IDF milit ary just ice syst em, which also includes t he Milit ary P olice Criminal Invest igat ion Depart ment (MP CID). 1129 Decisions on whet her t o open or close an

1120

1121

1122 1123 1124

1125 1126 1127 1128

1129

162

Armed Conflict According to International Law (hereinafter: Turkel Commission), pp.118-134, at http://www.turkelcommittee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20website.pdf. See also Cohen and Shany, 2012, section 3.

A/HRC/15/50, para. 21; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions Recommended by Economic and Social Council resolution 1989/65 of 24 M ay 1989; Turkel Commission pp. 134-7 Art. 3 (b), 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, 2005; E/CN.4/2006/53, para. 35; Turkel Commission, p.138. See also CCPR/C/ISR/CO/4, para. 6 E/CN.4/2006/53, para. 36 Cohen and Shany, 2012, sections 2.2 and 4.4 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, 2005 Ibid., principle 11 Ibid., principles 19 to 23 Ibid, principle 22 For more details on the role and functions of the M AG in relation to investigations during armed hostilities, see A/HRC/15/50, para.s 35-39 Israel, M inistry of Foreign Affairs, Israel’s Investigation of Alleged Violations of the Law of Armed Conflict, p. 3 http://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf (accessed on 6 M ay 2015) Hereinafter M oFA.

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invest igat ion lie with the MAG. In the event that the MAG orders a criminal invest igat ion t o be opened, t he MPCID carries out the investigation and submit s its findings t o t he MAG for a decision as t o follow-up, which may include an indict ment .

608. Recent ly, Israel has t aken not ewort hy st eps t owards bringing it s syst em of invest igat ions int o compliance wit h int ernat ional st andards. T he most significant development was t he est ablishment in 2010 by t he Government of Israel of t he P ublic Commission to Examine the Maritime Incident of 31 May 2010 (hereinaft er: t he T urkel Commission). The Turkel Commission was, in part, charged wit h examining “whet her t he mechanism for examining and invest igat ing complaint s and claims raised in relat ion t o violat ions of t he laws of armed conflict …conforms wit h t he obligat ions of t he St at e of Israel under t he rules of international law”. 1130 In February 2013, t he T urkel Commission issued it s second report , which concluded t hat “t he examinat ion and invest igat ion mechanisms in Israel for complaints and claims of violations of international humanit arian law and t he met hods t hey practice, generally comply wit h t he obligat ions of t he St at e of Israel under t he rules of international law”. 1131 However, the Turkel Commission also found t hat “there are grounds for amending t he examinat ion and invest igat ion mechanisms and t hat in several areas t here are grounds for changing t he accept ed policy”. 1132 Israel has implemented a number of the 18 recommendat ions issued by t he T urkel Commission, as not ed below, and est ablished an int er-agency commission -- due t o complete its work in the first half of 2015 -- t o address implement at ion of t he remaining ones. 1133 609. T he commission is also aware t hat NGO B’T selem announced, on 4 Sept ember 2014, t hat it would not assist t he current milit ary invest igat ion mechanism, which it considered fundament ally flawed, t hereby breaking wit h past pract ice. Along wit h NGO Yesh Din, it assert ed t hat “t he exist ing invest igat ion mechanism precludes serious invest igat ions and is marred by severe st ruct ural flaws t hat render it incapable of conduct ing professional invest igat ions”. 1134 Investigations into the 2014 hostilities 610. T he commission notes Israel’s assertion t hat it will invest igat e “fully any credible accusat ion or reasonable suspicion of a serious violation of the Law of Armed Conflict ” in relat ion to complaints and ot her information suggest ing IDF misconduct during Operat ion ‘P rot ect ive Edge’. 1135 As of 11 June 2015, t he MAG report ed t hat t he MAG Corps cont inued t o receive complaints pertaining to incidents t hat took place during t he operation, and t o t ry to identify incidents that may warrant examination or investigat ion. 1136 The MAG Corps st at ed that it looks into the credibility and concrete nature of each complaint or piece

1130 1131 1132 1133

1134

1135

1136

Turkel Commission, p.33 Turkel Commission, p.49 Turkel Commission, p.49 M oFA: 2014 Gaza Conflict: Factual and Legal Aspects, pp.13-14, http://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf (accessed on 6 M ay 2015) Israeli human rights organizations B’Tselem and Yesh Din: Israel is unwilling to investigate harm caused to Palestinians, 4 September 2014, at http://www.btselem.org/press_releases/20140905_failure_to_investigate (accessed on 15 M ay 2015) M oFA: 2014 Gaza Conflict: Factual and Legal Aspects, p.1, http://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf (accessed on 6 M ay 2015) Decisions of the IDF M AG Regarding Exceptional Incidents that Allegedly Occurred During Operation 'Protective Edge'- Update No. 4 (hereinafter: M AG update no. 4), 11 June 2015, at http://www.law.idf.il/163-7353-en/Patzar.aspx (accessed on 12 June 2015)

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of information suggest ing IDF misconduct t o det ermine what , if any, follow-up act ion is appropriat e. 1137 611. In line wit h a recommendat ion made by t he Turkel Commission, 1138 t he IDF Chief of General St aff est ablished a General St aff Mechanism for Fact -Finding Assessment s (FFA Mechanism) t o look int o “Except ional Incident s” during t he 2014 host ilit ies. 1139 According t o t he MAG Corps, the FFA Mechanism is made up of a number of fact -finding assessment t eams, each led by a senior IDF officer and comprising members wit h expert ise on operat ional and legal issues, including on int ernat ional law. 1140 A senior officer wit h expert ise in int ernat ional law was also appoint ed t o assist t he head of t he FFA Mechanism. 1141 The MAG Corps noted that “[n]one of the fact-finding assessment t eams’ members served in t he chain of command during Operat ion ‘P rot ect ive Edge’”. 1142 612. According t o t he MAG Corps, “[t ]he t ask of t he FFA Mechanism is t o collat e informat ion and relevant mat erials in order t o det ermine t he fact s wit h respect t o Except ional Incident s t hat occurred during t he Operat ion. T hese effort s are int ended t o provide t he Military Advocat e General…wit h as much fact ual informat io n as possible in order t o enable t he MAG t o reach decisions regarding whet her or not t o open a criminal invest igat ion, as well as for t he purpose of a 'lessons-learned' process and t he issuance of operat ional recommendat ions t hat will assist in prevent ing except ional incident s in t he fut ure. Exceptional Incidents examined by t he FFA Mechanism are t hose incident s where t he MAG has decided t hat addit ional information is required in order to det ermine whet her t here exists reasonable grounds for suspicion of a violation of t he law t hat would just ify a criminal invest igat ion.” 1143 Informat ion collect ed and findings reached by t he FFA Mechanism are t hen provided t o the MAG t o det ermine the appropriat e next st eps. 1144 In specific cases, t he MAG can also opt to directly open a criminal invest igat ion, wit hout an init ial fact -finding assessment .

613. Where t he MAG deems t he evidence before it t o be sufficient t o open a criminal invest igat ion, the case is referred t o “a special investigation team assembled by t he Military P olice's Criminal Investigat ion Division in order t o invest igat e incident s alleged t o have occurred during Operat ion 'P rotective Edge'”. 1145 T he MAG not es t hat t his invest igat ion t eam has collected t estimonies from IDF soldiers and commanders, as well as from t ens of P alest inian wit nesses. 1146 614. As of 11 June 2015, t he MAG reported t hat he had referred allegat ions wit h regard t o approximately 190 incidents for examination by the FFA Mechanism. Of those, t he FFA Mechanism had examined and referred 105 t o t he MAG for a decision on follow up act ion. 1147 The MAG closed t he cases of 19 of these incident s wit hout opening a criminal invest igat ion where he “did not find t hat t he circumst ances of t he incident gave rise t o 1137

1138 1139

1140 1141 1142 1143 1144 1145 1146 1147

164

Ibid; See also Decisions of the IDF M ilitary Advocate General Regarding Exceptional Incidents During Operation 'Protective Edge'- Update No. 3 (hereinafter: M AG update no. 3), 22 M arch 2015, at http://www.law.idf.il/163-7183-en/Patzar.aspx (accessed on 10 M ay 2015) Turkel Commission recommendation no. 5, p.425 M AG, Operation Protective Edge: Examinations and Investigation, 10 September 2014, at http://www.mag.idf.il/261-6858-en/Patzar.aspx (accessed on 10 M ay 2015) Ibid.

Ibid.

Ibid.; M AG update no. 4 Ibid.

Ibid.

M AG update no. 3 M AG update no. 4 Ibid.

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reasonable grounds for suspicion of criminal behavior” based on t he assessment of the FFA Mechanism. 1148 However, in some of these latter cases, the MAG recommended reviewing operat ional methods; while in others, the MAG was unable t o ident ify any involvement of IDF forces in t he incident.1149 In some inst ances, t he MAG referred t he case back t o t he FFA Mechanism for furt her examinat ion. 1150 615. In addit ion, t he MAG ordered t he opening of 15 criminal investigat ions “without the need for prior examination by the FFA Mechanism on the basis of allegations that indi cated prima facie grounds for a reasonable suspicion of criminal misconduct ”. 1151 T wo of t hese were closed wit hout undert aking criminal or disciplinary proceedings, while t he 13 ot hers were eit her ongoing or completed and await ing review by t he MAG. T he MAG o rdered a criminal invest igat ion int o a furt her seven incident s following examinat ion by t he FFA Mechanism. 1152 616. In April 2015, 1153 t he MAG issued t he first indict ment s in relat ion t o t he 2014 host ilit ies. T wo soldiers were accused of loot ing NIS 2,420 (over USD 600) from a P alest inian home in Shuja’iya, Gaza Cit y. A t hird soldier was accused of assist ing t hem.

T wo of t he accused are also charged wit h obst ruct ion of just ice. 1154 617. Israel init iated t wo addit ional inquiries. According t o media report s, t he first one was conduct ed by t he Foreign Affairs and Defense Committee of the Knesset. At t he t ime of writ ing, the Committee’s report was reportedly finalised, but has yet to be published. 1155 T he second inquiry, announced by t he St ate Comptroller in January 2015, is looking int o “t he procedure of decision- making by t he military and political echelons during operat ion "T zuk Eitan" (Protective Edge). The investigation will include aspect s of international law, and also focus on t he examination and invest igat ional pr ocedures wit hin t he IDF and t he government ”.1156 At t he time of writ ing, t he St at e Compt roller had not yet published his report .

Compliance of Israel’s investigations with international standards 618. T he commission is aware of Israel’s argument s regarding t he numerous pract ical challenges involved in examining and invest igat ing alleged violat ions during t he 2014 host ilities.1157 Nevertheless, t he commission is concerned about a number of procedural, st ruct ural and subst ant ive shortcomings, which continue t o compromise Israel’s abilit y t o adequat ely fulfil it s dut y t o investigat e. Many of t hese have been ident ified by t he T urkel Commission, as well as by int ernational human right s mechanisms. 1158 It should be not ed

1148 1149 1150 1151 1152 1153

1154 1155 1156

1157

1158

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

E.g. http://www.timesofisrael.com/soldiers-indicted-for-looting-during-gaza-war/#! (accessed on 5 M ay 2015) M AG update no. 4 http://www.ynetnews.com/articles/0,7340,L-4630123,00.html (accessed on 31 M ay 2015) Israel State Comptroller, The State Comptroller investigation of operation Tzuk Eitan- Protective at http://www.mevaker.gov.il/he/publication/Articles/Pages/2015.1.20-TzukEItan.aspx?AspxAutoDetectCookieSupport=1 (accessed on 31 M ay 2015) These are set out by Israel’s M inistry of Foreign Affairs in M oFA: 2014 Gaza Conflict: Factual and Legal Aspects, pp.2&9, http://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf (accessed on 6 M ay 2015) E.g. Human Rights Committee, Concluding observations on the fourth periodic report of Israel, CCPR/C/ISR/CO/4 (hereinafter: CCPR/C/ISR/CO/4), para. 6; and A/HRC/15/50, paras 90-95.

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t hat the analysis below does not const it ut e a com prehensive review of Israel’s syst em of invest igat ions, but rather highlights a few key point s, which, if addressed, would enhance t he compliance of t he syst em wit h int ernat ional st andards.

Independence and impartiality 619. As not ed by t he UN Committee of Experts in 2010 and 2011, a central failing of t he invest igat ion syst em st ems from t he dual responsibilit ies of t he MAG, bot h as t he legal advisor t o t he Chief of General St aff and other military authorities and as t he supervisor of disciplinary law and of criminal investigat ions in the military.1159 Along wit h the At t orney General, t he MAG reportedly regularly participated in cabinet meetings regarding t he 2014 host ilities. 1160 B’T selem argues t hat “[m]edia report s and past experience indicat e t hat almost all t he decisions made during Operat ion P rot ect ive Edge were made aft er legal counsel was provided by t he MAG and t he attorney general”. 1161 T he MAG and t he MAG Corps are also t asked wit h providing legal advice on operat ional issues before and during t he host ilities, which directly influences act ions t aken by soldiers on t he ground. 1162 T he commission is aware t hat, since 2007, t here has been an organizat ional separat ion of t he unit s wit hin t he MAG Corps charged wit h law enforcement 1163 and t hose t asked wit h provision of legal advice, 1164 with a view to ensuring t hat “the military advocates in charge of t he prosecution teams no longer engage in t he provision of legal advice t o t he heads of t he jurisdict ion dist ricts in which they operate”, as noted by t he Turkel Commissio n. 1165 At t he same t ime, t he Int ernat ional Law Depart ment advises “IDF unit s wit h regard t o operat ional act ivit y during t imes of emergency and calm, including formulat ing a legal posit ion on met hods of warfare, operat ional plans and milit ary t arget s”. 1166 T he involvement of the MAG in policy discussions concerning t he host ilit ies, and t he role of MAG Corps legal advisors in decisions t aken by t he IDF during combat cont inue t o raise quest ions about t he MAG’s abilit y to carry out independent and impart ial invest iga t ions, part icularly wit h regard t o cases where soldiers may be following commands aut horised by t he MAG and his subordinat es, but nonet heless may be suspect ed of having violat ed int ernational humanitarian law or international human rights law. Moreover, t here is a need t o ensure t he robust application of international humanit arian law in t he MAG’s decisions as t o whet her t o open or close criminal invest igat ions. For example, t he definit ion of “military objectives” has implications both for the MAG’s operat ional guidance of t roops on t he ground and his lat er assessment of whet her or not t o refer a case for criminal invest igat ion.

620. Moreover, in the cont ext of t he 2014 host ilit ies, t he FFA Mechanism appears t o have replaced t he operat ional debriefings for t he purposes of informing t he MAG as t o 1159

A/HRC/15/50, para 53. See also Cohen and Shany, 2012, section 4.3.2; A/HRC/16/24, para 12.

ht t p://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.16.24_AUV.pdf 1160

1161 1162

1163

1164

1165 1166

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B’Tselem, Israeli authorities have proven they cannot investigate suspected violations of international humanitarian law by Israel in the Gaza Strip, 5 September 2014, at http://www.btselem.org/accountability/20140905_failure_to_investigate (accessed on 31 M ay 2015) Ibid.

According to a submission received by the commission from Prof. Amichai Cohen, since Operation ‘Cast Lead’ (2008-09), lawyers have become more involved in the command structure and in operational decision-making.

The law enforcement sections are comprised of the military prosecution and the M ilitary Defender’s Office.

The legal advice units are made up of the Advice and Legislation Department, the Legal Advisor for the Territories of Judea and Samaria, and the International Law Department.

Turkel Commission, p.282-283. See also M oFA, p.4.

Turkel Commission, p.288

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whet her t he circumstances of an incident of alleged violations of international humanitarian law merit opening an investigation. This is a welcome measure, given that, according to the MAG, t he primary purpose of operational debriefings is as “an organizational tool in order t o ‘improve t he performance of milit ary unit s’ and in order t o learn lessons”. 1167 T his development is in line wit h the Turkel Commission, which recommended t hat “a separate mechanism shall be est ablished in order t o conduct a fact -finding assessment ”. 1168 It was unclear, at t he time of writ ing, as t o whet her t he FFA Mechanism will be limit ed t o t he 2014 host ilities, or whether it will also be implement ed wit h respect t o alleged violat ions t hat occurred subsequent ly in Gaza as well as in t he West Bank.

621. While t he MAG is appointed by t he civilian Minister of Defense, his appointment is made upon t he recommendation of t he IDF’s Chief of General St aff, 1169 cont rary t o t he recommendat ion made by t he T urkel Commission t hat t he MAG be appoint ed upon recommendat ion of a public professional commit t ee. 1170 In addit ion, t he t enure and promot ion of t he MAG are current ly dependent on t he discret ion of his supervisors, 1171 t hereby limiting his aut onomy. The Turkel Commission suggest ed addressing t his pot ential difficult y by rest rict ing t he MAG’s t erm in office t o six years and inst it ut ing a predet ermined rank. 1172 622. It is import ant t o ment ion t hat Israel has in place safeguards t o preserve independence by means of civilian judicial oversight over decisions t aken by t he MAG, not ably by t he Attorney General and the Israeli Supreme Court, sitting as t he High Court of Just ice. Wit h respect t o t he At t orney General, appeals can be made t o him concerning MAG decisions, and he may int ervene or examine a decision by t he MAG. In April 2015, t wo direct ives were issued t o t his effect, and served t o formalise this appeals process. 1173 In addit ion, t o enhance the Attorney General’s ability to carry out his oversight funct ion, t he Depart ment of Special Operations (int ernat ional law) was creat ed in January 2010 in t he office of t he At t orney General. 1174 T he T urkel Commission recommended t hat t his be st rengt hened furt her by est ablishing a unit specializing in international humanitarian law in t he Advice and Legislat ion Depart ment at t he Minist ry of Just ice. 1175 623. As for t he High Court of Just ice, it hears petitions submit t ed t o it regarding alleged act ions of the government and its agencies, 1176 and is t herefore in a position to issue rulings in relat ion to decisions taken by t he MAG on invest igat ions int o alleged violat ions during host ilities.1177 However, in t he past, the High Court of Just ice has taken the position that its int ervention in matters relating t o the chief military prosecut or “should occur only in very except ional circumstances”. 1178 According to information reviewed by t he commission, in 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 1177

1178

Turkel Commission, p.381-2 Turkel Commission, p.382 (recommendation no. 5) http://www.law.idf.il/320-en/Patzar.aspx (accessed on 10 M ay 2015) Turkel Commission recommendation no. 7 Cohen and Shany, 2012, section 4.3.2 Turkel Commission recommendation no. 7 Directives 4.5003 and 9.1002 issued by the Attorney General; M AG update no. 4 Submission from Prof. Amichai Cohen Turkel Commission recommendation no. 12, p. 428 Turkel Commission, pp.316-317; submission from Prof. Amichai Cohen M AG, Operation Protective Edge: Examinations and Investigation, 10 September 2014, at http://www.mag.idf.il/261-6858-en/Patzar.aspx (accessed on 10 M ay 2015); B’Tselem, Israel’s report to the UN misstates the truth, 4 February 2010, at http://www.btselem.org/gaza_strip/20100204_israels_rep ort_to_un (accessed on 31 M ay 2015) HCJ 3292/07, Adalah v. Attorney General, 2011, at http://www.shalilaw.co.il/index.php?option=com_content&view=article&id=79&Itemid=37 (accessed on 6 M ay 2015)

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t he majority of cases, the High Court of Just ice has approved, in principle, the policy set by t he MAG, and has rarely overt urned a decision by t he MAG. 1179 Promptness 624. T he MAG Corps st ated t hat the “fact -finding assessment t eams were inst ruct ed t o complet e their assignments wit hin a short timeframe in order to ensure prompt and effective examinat ions”.1180 On 22 March 2015, the MAG Corps noted t he “rapid pace” of progress of invest igations undert aken by t he MPCID.1181 While welcome, the vague wording leaves open t o interpretation the actual t imeframe in which the investigations must be complet ed, leaving t he process vulnerable t o delays.

625. As explained by t he T urkel Commission, prompt ness “includes t he obligat ions t o quickly commence and conduct an invest igat ion in a t imely manner. An invest igat ion conduct ed wit hin a reasonable period of t ime cont ribut es t o t he t horoughness and effect iveness of the investigation and also to public confidence in the investigative syst em, and t o t he sense that just ice is achieved.” 1182 On t he basis of files it reviewed, t he T urkel Commission found t hat “the durat ion of these investigations sometimes extends over many years.”1183 Delays in investigat ions can seriously compromise t he collect ion of evidence, which is increasingly difficult to gat her and may eventually be entirely lost t he more t ime goes by. T he Turkel Commission therefore recommended a t imeframe of a few weeks for a decision by t he MAG on possible init iation of an invest igat ion; a t imeframe t o be set for conduct ing t he act ual investigation; and for the MAG, in coordinat ion wit h t he At t orney General, t o set a period of t ime bet ween t he decision t o open an invest igat ion and t he decision t o adopt legal or disciplinary measures, or to close the case. 1184 Given that almost one year has elapsed since t he end of t he host ilit ies, quest ions arise regarding t he prompt ness of t he many invest igat ions t hat are as yet incomplet e.

Thoroughness and effectiveness 626. T here is lit t le informat ion available as t o how t he relevant bodies collect ed or assessed evidence. 1185 T he commission received indications t hat some attempt was made by t he MAG t o gat her Palestinian eyewitness t estimony as part of at least some investigations.

However, a number of P alestinian witnesses interviewed by t he commission said t hat t hey had not been contacted by an Israeli invest igat ive t eam. In addit ion, it is unclear if ot her met hods were used t o ensure a t horough review of t he fact s, for example, undert aking aut opsies or medical examinat ions, t o t he ext ent possible. As not ed above, t he FFA Mechanism cont ains st aff wit h expert ise on operat ional and legal issues, i ncluding on int ernat ional law, but no informat ion was available as t o whet her st aff are t rained on invest igat ion t echniques and met hodology, in line wit h int ernat ional human right s st andards.

1179 1180

1181 1182 1183 1184 1185

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Submissions from Prof. Amichai Cohen and Adalah M AG, Operation Protective Edge: Examinations and Investigation, 10 September 2014, at http://www.mag.idf.il/261-6858-en/Patzar.aspx (accessed on 10 M ay 2015) M AG update no. 3 Turkel Commission, pp. 397-8 Turkel Commission, p. 398 Turkel Commission recommendations no. 6 and 10.

Submission 33

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Transparency 627. Israel has exert ed efforts t o increase transparency wit h regard t o it s invest igat ions.

T his has included publicat ion of four updat es by t he MAG regarding t he st at us of assessment s and invest igations. 1186 Israel has also made at tempts t o inform the international communit y of progress in t his regard t hrough briefings t o diplomat s and UN officials in Geneva and New York, 1187 and t hrough t he publication of material on the hostilities on t he websit e of t he Minist ry of Foreign Affairs. 1188 In line wit h t he recommendat ion of t he T urkel Commission for t he MAG t o st at e his reasons for declining t o open an invest igat ion,1189 the MAG has included information concerning certain individual incidents in his aforementioned updat es. Unfortunately, the Government of Israel did not reply t o a let t er sent by t he commission on 10 February 2015, request ing informat ion in relat ion t o invest igat ions, adherence t o t he basic principles of int ernat ional humanit arian law, and specific incident s in Gaza and t he West Bank. T his would have been an opport unit y t o provide addit ional relevant informat ion for inclusion in t his report .

628. However, a det ailed reading of t he information provided on many of the incidents in t hose updat es provides lit t le clarit y on t he assessment by t he FFA Mechanism and t he MAG. T he MAG updat es rat her make brief references t o milit ary necessit y, milit ary t arget s, warnings provided, fulfillment of the requirement of the principle of proportionality or t he t argeting process, and so on, without supplying an adequat e level of det ail to support t he reasoning just ifying act ions t hat result ed in civilian harm. Moreover, according t o informat ion received by t he commission, lawyers represent ing complainant s have been prevent ed from reviewing investigat ory materials, on t he basis of it s classified nat ure; 1190 and complainants are often not informed of MAG decisions, 1191 despite the assertion by the MAG t hat he replies t o individuals or organizat ions t hat have submit t ed complaint s in writ ing. 1192 629. While t he IDF is underst andably limit ed in t he informat ion it makes publicly available by legit imat e security concerns, there is a need t o provide sufficient informat ion for it s updat es t o be meaningful. 1193 Information currently made available is very welcome, but is insufficient to allow for effective public and int ernational scrutiny. T he commission recognises t hat “the level of t ransparency expect ed of human right s invest igat ions is not always achievable in sit uat ions of armed conflict , part icularly as quest ions of n at ional securit y often arise”. 1194 Indeed, as not ed by t he UN Special Rapport eur on Ext rajudicial, Summary or Arbit rary Execut ions, “ St at es may have t act ical or securit y reasons not t o disclose crit eria for selecting specific targets….But wit hout disclosure of legal rat ionale as well as t he bases for t he select ion of specific t arget s (consist ent wit h genuine securit y needs), St at es are operat ing in an account abilit y vacuum. It is not possible for t he int ernat ional communit y t o verify t he legalit y of a killing. ”1195 630. Case study: One of t he criminal investigations closed by t he MAG wit hout furt her legal proceedings had looked int o t he killing of four children on 16 July 2014. T he boys 1186 1187 1188

1189 1190 1191 1192 1193 1194 1195

These can be found at: http://www.law.idf.il/1007-en/Patzar.aspx 16 and 25 February 2015 and 27 M ay 2015 in Geneva and 30 October 2014 in New York.

These can be found at http://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf (accessed on 6 M ay 2015) Turkel commission recommendation no. 6 Submission from Adalah Submission from Adalah M AG update no. 3 and no. 4 Submission 33 A/HRC/15/50, para 32. See also Cohen and Shany, 2012, section 2.2 A/HRC/14/24/Add.6, para. 92

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had been playing on a breakwat er near t he port in Gaza Cit y, when t hey were hi t by t wo missiles fired by Israeli forces from the air. According t o t he 11 June 2015 updat e of t he MAG, t he MP CID investigation found t hat the incident took place in an area, located on the breakwat er, t hat was known t o be a compound belonging t o Hamas naval forces and was “ut ilized exclusively by milit ant s”. 1196 MP CID invest igat ors learnt t hat an int elligence assessment indicat ed t hat operatives would gat her in the compound t o prepare for milit ary act ivit y against t he IDF. Aerial surveillance t hen ident ified figures running int o t he compound, who were believed t o be milit ants, and were not ident ified as children. On t he basis of t he invest igat ion, t he MAG concluded t hat “t he at t ack process…accorded wit h Israeli domest ic law and int ernat ional law requirement s”. 1197 631. T he commission also examined t he killing of t he four boys. Based on it s own invest igat ion, the commission found st rong indications that the IDF failed in its obligat ions t o t ake all feasible measures t o avoid or at least minimize incident al harm t o civilians.

According t o t he Int ernat ional Commit t ee of t he Red Cross, “[i]n order t o avoid t he erroneous or arbit rary targeting of civilians entit led t o prot ect ion against direct at t ack, it is…of part icular importance that all feasible precaut ions be t aken in determining whet her a person is a civilian and, if so, whet her he or she is directly participat ing in host ilit ies.” 1198 Int ernational humanitarian law provides t hat, in case of doubt , the person in quest ion must be presumed t o be a civilian and t herefore protected against direct attack.1199 In relat ion t o t arget ing decisions, the det ermination of civilian status “will have to take into account, inter alia, t he intelligence available t o t he decision maker, the urgency of t he sit uat ion, and t he harm likely t o result t o t he operat ing forces or t o persons and object s prot ect ed against direct at t ack from an erroneous decision.” 1200 632. In it s evaluat ion of whet her t hese crit eria had been met in t his specific case, t he commission considered t he following elements. Firstly, t he boys were aged bet ween 9 and 11 years, and were t herefore small in st ature in comparison to the size of an average adult .

Secondly, t here were no IDF soldiers in t he area, as t he ground operat ions had not commenced, nor were t here any ot her persons in imminent danger, t hus calling int o quest ion t he urgency of launching t he st rike. From t he informat ion available, it would appear t hat t he IDF could have more exhaust ively verified whet her t hose being t arget ed were t aking a direct part in t he host ilit ies or were members of armed groups wit h a cont inuous combat function. Thirdly, the compound was locat ed in t he cent re of a cit y of almost 550,000 resident s, 1201 bet ween a public beach and an area regularly used by fishermen, and was visible from nearby hotels, where international journalists were st aying.

It could t herefore not be ruled out t hat civilians, including children, might be present. These fact ual element s suggest t hat by assuming t hat t he individuals were members of armed groups merely on the basis of their presence in a particular locat ion, t he IDF reversed t he presumpt ion of civilian st at us. In addit ion, t he commission is concerned t hat t he MAG appears t o have validat ed t his incorrect applicat ion of int ernat ional humanit arian law.

633. Concerning t he investigation itself, t he MAG explained t hat testimony was gat hered from a large number of soldiers, and supplement ed by video foot age, media images and affidavit s of 3 P alest inian wit nesses. Int ernat ional journalist s and ot her eyewit nesses, 1196 1197 1198

1199 1200 1201

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M AG update no. 4 Ibid.

ICRC, Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, 2009, p.76 Arts 50 (1) and 52 (1), Additional Protocol I. Ibid.

Palestinian Bureau of Statistics, 2014 figures, at http://www.pcbs.gov.ps/Portals/_Rainbow/Documents/gza.htm (accessed on 31 M ay 2015)

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including P alest inians, do not appear to have been quest ioned, despite many persons having wit nessed t he incident . This raises quest ions about t he t horoughness of t he invest igat ion.

Recommendations of UN Human Rights Treaty Bodies 634. T he UN Human Rights Committee has consistently urged St at es parties to undert ake criminal investigat ions into serious human rights violations in order to bring perpetrators to just ice. 1202 In November 2014, during it s periodic examination of Israel’s implement at ion of t he Int ernat ional Convent ion on Civil and P olit ical Right s, t he Commit t ee direct ed several recommendat ions to Israel regarding account ability. They included: t o “…cont inue reforming it s invest igat ive syst em, including, as an init ial st ep, by implement ing t he recommendat ions of the second report of the Turkel Commission. It should ensure t hat all human right s violations committed during it s military operations in the Gaza St rip in 2008 2009, 2012 and 2014 are t horoughly, effect ively, independent ly and impart ially invest igat ed, that perpetrators, including, in part icular, persons in posit ions of command, are prosecut ed and sanct ioned in a manner commensurat e wit h t he gravit y of t he act s commit t ed, and t hat vict ims or t heir families are provided wit h effect ive remedies, including equal and effect ive access t o just ice and reparat ions.” Ot her recommendat ions call for investigations into all incidents involving t he use of firearms by law enforcement officers and prosecut ions of t hose responsible for excessive use of force during arrest operat ions, as well as int o allegat ions of t ort ure and ill-t reat ment , and t hat vict ims be provided wit h effect ive remedies. 1203 The West Bank, including East Jerusalem 635. T he syst em of investigat ions into allegations of violations of international law by the IDF in t he West Bank during t he period under consideration by t he commission differs t o some degree from t hat in Gaza. While the MAG remains central to the syst em in t he West Bank, t he FFA Mechanism (see above) has so far only been implemented in relation t o t he 2014 host ilities in Gaza. Based on the information available, the process of investigations in t he West Bank appears t o operat e as it did pr ior t o t he June 2014 Operat ion “ Brot her’s Keeper.”

636. Since April 2011, t he MAG adopt ed a new invest igat ion policy in t he West Bank, whereby “ every case in which uninvolved P alestinians are killed by IDF fire be investigated immediat ely by the Criminal Investigat ion Division” of the IDF Military P olice Corps. 1204 According t o t he IDF, the policy does not apply in cases where the killing “occurred during an act ivity with clear elements of combat (e.g. fire exchange)”. 1205 While t his policy is an improvement, t he broad exemption clause means t hat it does not yet fully comply wit h t he legal requirement t o invest igat e every fat alit y result ing from t he use of force by a St at e agent . 1206 637. In cases of alleged violat ions against Palestinians not involving deat h , informat ion available t o t he commission indicat ed t hat , in some cases, criminal invest igat ions are direct ly opened, while in ot hers, t he MAG corps may init iat e a preliminary inquiry t o 1202 1203 1204

1205 1206

Human Rights Committee General Comment No. 31 (2004), para. 15.

CCPR/C/ISR/CO/4, paras 13 and 15 Israel Defence Forces, IDF M ilitary Advocate General Implements New Investigation Policy in West Bank, 6 April 2011, at https://www.idfblog.com/blog/2011/04/06/idf-military-advocate-generalimplements-new-investigation-policy-in-west-bank/ (accessed on 15 M ay 2015) Ibid.

See section above entitled ‘International legal framework’ for an explanation of the legal analysis.

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det ermine whet her a criminal invest igat ion is warrant ed. 1207 P reliminary inquiries are apparent ly often opened when t he alleged violat ion occurred during a milit ary opera t ion and rely considerably on operational debriefings. 1208 Based on t he outcome of t he inquiry, t he MAG decides whet her a criminal invest igat ion should be opened.

638. T he commission reviewed informat ion pert aining t o t he use of operat ional debriefings as a means t o inform t he decision of the MAG as t o whether to open a criminal invest igat ion. The main shortcomings relate t o t he fact s t hat : t hey are carried out by t he same unit involved in t he incident ; 1209 t hey are generally based on soldiers’ account s wit hout complementing t his wit h evidence collected from victims and wit nesses; t hose who carry t hem out are not t rained invest igat ors; t here is no right of appeal against findings reached; and t here is a risk t hat soldiers ‘coordinat e’ t heir account s of t he incide nt . 1210 Moreover, there is no timeframe set for the finalisation of such debriefings, and, in practice, t his can be a very long process, 1211 which may hamper any eventual criminal investigat ion.

T he Turkel Commission adds t hat “the operat ional debrief is not focused on quest ions of criminality”. 1212 Also of concern is t hat such debriefs are not made public; complainant s and vict ims are not informed of t he out come; and informat ion cont ained t herein is inadmissible as evidence in any subsequent prosecut ion. 1213 The commission hopes that the est ablishment of a FFA Mechanism wit h regard t o t he 2014 host ilit ies in Gaza may be a first st ep towards implementation of the same mechanism for incident s in Gaza t hereaft er and for incident s not involving deat h in t he West Bank.

639. During t he period under examinat ion, Israel has not published updat es similar t o t hose relating to Operation ‘Protective Edge’ regarding it s investigations in the West Bank.

However, from t ime t o t ime, t he MAG does publish his decision on a part icular ca se, or provides such informat ion t o a request ing NGO. T he commission has analysed one such document , dat ed 10 July 2014, which discloses t he MAG’s reasoning for closing an invest igat ion into the case of a 14-year-old boy killed on 19 March 2014. 1214 T he boy was shot wit h live ammunition by an IDF soldier while he was t rying t o cross t hrough a breach in t he ‘Wall’ to pick wild herbs, as reportedly previously done by P alest inians in t he same area during t his season wit hout ramifications. 1215 The MPCID investigation concluded t hat t he IDF act ed in full accordance wit h open-fire regulat ions, and therefore found no grounds for criminal proceedings. The MPCID found t hat the shot was aimed at t he boy’s feet but act ually hit his waist . T he invest igat ion appears t o have been based on informat ion

1207

1208 1209 1210

1211 1212 1213 1214

1215

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Yesh Din, Data Sheet, September 2014, at http://www.yeshdin.org/userfiles/file/datasheets/YeshDin%20-%20DataSheet%20M etzach%209_14%20%20Eng%20(1)%20(1).pdf (accessed on 31 M ay 2015) Turkel Commission, pp.335-9 Cohen and Shany, 2012, sections 4.2.1 and 4.3.1 Turkel Commission, p.381. See also Amnesty International, Trigger-happy: Israel’s use of excessive force in the West Bank, February 2014, p.62, at http://www.amnesty.org/en/documents/M DE15/002/2014/en/ (accessed on 31 M ay 2015) Turkel Commission, pp.381 and 339. See also Amnesty International, Trigger Happy, p.62 Turkel Commission, p.382 Turkel Commission, p.338 The full text can be found at http://www.law.idf.il/163-6762-he/Patzar.aspx?pos=35 (accessed on 29 M ay 2015). Although the killing occurred just prior to the period under examination, the Commission deemed it important to include the case in order to shed light on the way investigations are handled by the M PCID and the M AG. B’Tselem, Responsibility for killing 14-year-old Palestinian lies primarily with commanders who ordered armed ambush, 26 M arch 2014, at http://www.btselem.org/firearms/20140326_killing_of_yusef_a_shawamreh_deir_al_asal (accessed on 31 M ay 2015)

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provided by t he IDF, while t he t estimony of Palestinians present could not be obt ained. An invest igat ion by B’T selem concluded t hat t he boy “posed no danger t o any ot her persons”. 1216 For it s part, the MPCID does not suggest t hat t he boy was armed or t hat he posed a t hreat to the soldiers or anyone else.1217 The reasoning out lined by t he MAG gives an insight int o the way in which the MPCID assesses information during it s invest igat ions.

Alt hough t he MP CID did not cit e any t hreat posed by t he boy, t he MAG st ill found no wrong-doing on t he part of t he IDF. 2.

Other factors that may hinder achieving accountability Investigations into the role of the political and military leadership in suspected violations of international humanitarian law and international human rights law 640. During t he commission’s examinat ions of incident s pert aining t o IDF at t acks on resident ial buildings, t he use of art illery and ot her explosive weapons wit h wide -area effect s in densely populated areas; t he dest ruct ion of ent ire neighbourhoods in Gaza; and t he regular resort to live ammunition by t he IDF, notably in crowd contr ol situat ions, in t he West Bank; quest ions arose regarding the role of senior officials who set military policy. In many cases, individual soldiers may have been following agreed milit ary policy, but it is t he policy itself that may violate the laws of war. Currently, the FFA Mechanism focuses on so-called ‘except ional incidents’ suggest ing a rat her narrow approach, which may fail t o t ake int o account violations of international law t hat result from an int ent ional policy or milit ary command, which itself may fail to comply with international legal obligat ions. 1218 T he commission’s invest igat ions also raise t he issue of why t he polit ical and milit ary leadership did not revise their policies or change t heir course of action, despite considerable information regarding massive death and dest ruction in Gaza, which in turn raises quest ions as t o pot ent ial violat ions of int ernat ional humanit arian law and crim inal law by t hese officials. T here is t herefore a need t o look int o t he various st ages of decision -making, not ably in t he design, planning, ordering and oversight of t he milit ary operat ions.

641. By way of example, on 21 July 2014, 13 days int o the hostilities in Gaza, t en Israeli human right s organisations wrote to the At t orney General request ing t hat he inst ruct t he polit ical and command leadership to refrain from taking act ions that may violate the laws of war. T hey also asked him t o act t o est ablish a mechanism t o invest igat e decisions and guidelines of t hese leaders regarding t he conduct of hostilit ies in Gaza. 1219 In a reply of 5 August 2014, t he Attorney General not ed t hat t he IDF is inst ruct ed t o act in accordance wit h int ernational law, and t hat to ensure t hese obligat ions, t he Government and milit ary receive const ant legal counsel. He added t hat inquiry and invest igat ion mechanisms exist wit hin t he IDF and t he Ministry of Just ice, and gave no indicat ion t hat he would follow up on t he request s made by t he human rights organisations. 1220 (Calls, made by eight NGOs in a let t er to the Attorney General, for investigat ions at all levels into alleged violations during t he 2008-09 host ilit ies in Gaza were report edly met wit h a similar response from t he At t orney General.) 1221 In t he lat est round of violence, no act ion is known t o have been t aken by t he MAG, in the case of military commanders, and by t he Attorney General, wit h

1216 1217 1218 1219

1220

1221

Ibid. http://www.law.idf.il/163-6762-he/Patzar.aspx?pos=35 (accessed on 29 M ay 2015) Submission 33 http://www.acri.org.il/en/wp -content/uploads/2014/07/NGOs-Letter-to-AG-Protective-EdgeViolations.pdf (accessed on 31 M ay 2015) http://www.acri.org.il/he/wp -content/uploads/2014/07/yoamash050814.pdf (accessed on 31 M ay 2015) http://www.btselem.org/download/20090120_acri_to_mazuz_on_castlead_investigations_eng.pdf ; http://www.btselem.org/press_releases/20090319 (accessed on 31 M ay 2015)

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respect t o military and civilian leadership, t o initiate invest igat ions int o t he role of senior officials. It is therefore unclear how t he Attorney General is act ively and wholly fulfilling his role t o provide oversight of t he MAG. 642. Anot her account ability mechanism that the St ate may initiate is a public commission of inquiry t o review policies and pract ices. As not ed by t he Israeli Minist ry of Foreign Affairs, this was done in response t o t he Flot illa incident , wit h t he est ablishment of t he T urkel Commission. 1222 With regard t o the 2014 hostilities, no such commission of inquiry has been init iated. Rather, for the time being, it is the St ate Comptroller who will undert ake an examinat ion of the decision-making process of the political and milit ary echelons, wit h reference t o international law. As noted by t he Turkel Commission, it is st ate commissions of inquiry t hat would usually handle t he invest igat ion of incident s involvi ng senior decision-makers. The commission notes that t he St ate Compt roller does not appear in t he list of bodies in Israel t hat investigate violations of international humanitarian law, outlined by t he T urkel Commission. 1223 643. T he St at e Compt roller does not appear t o have a specific focus on assessing compliance wit h international law. For example, when looking into the Flotilla incident, the T urkel Commission explained t hat the “St ate Comptroller focused on t he decision –making process wit hin the Government with respect to its handling of the maritime incident and the int eraction that took place bet ween the political echelon and t he IDF; int elligence mat t ers; and t he work of the public relations aut horities.” 1224 To attempt to mitigate the impact of a lack of specialised expert ise, t he Compt roller has brought in expert s t o assist wit h his current inquiry concerning the 2014 hostilities in Gaza in order to bolst er existing capacity, not ably in t he field of international humanitarian law. 1225 The commission looks forward to reading t he report of the St ate Comptroller and encourages it s early publicat ion. His inquiry should be supplement ed by mechanisms - including criminal proceedings and disciplinary measures - t hat aim, where appropriat e, t o hold t o account individuals who may have played a role in wrong-doing, regardless of t heir posit ion in t he hierarchy.

644. Broadly speaking, t he commission is not aware of any on-going invest igat ions of senior officials for alleged violat ions of int ernat ional humanit arian law or int ernat ional human right s law. In this context, the Turkel Commission recommended t hat Israel enact “provisions t hat impose direct criminal liabilit y on milit ary commanders and civilian superiors for offenses commit t ed by t heir subordinat es”, 1226 in line wit h t he doct rine of command or superior responsibilit y.

Domestic legislation 645. As not ed by t he T urkel Commission, Israeli law does not include all act s defined as war crimes under int ernat ional humanit arian law. 1227 Correspondingly, t he T urkel Commission recommended t hat t he Minist ry of Just ice “init iat e legislat ion for all int ernational criminal law offenses t hat do not have a corresponding domest ic offense in Israeli criminal law.” 1228 If implemented, t his would be an import ant step towards ensuring 1222 1223 1224 1225

1226

1227 1228

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M oFA, p.13 Turkel Commission, pp. 387-8 Turkel Commission, p.445 The investigation will be aided by three experts: Prof. M ichael Newton, Prof. M oshe Halbertal and Prof. M iguel Deutsch. Prof. Newton is an international law expert, with particular expertise on accountability, transnational justice, and conduct of hostilities.

Turkel Commission recommendation no. 2; submission from Adalah. Note also that the doctrine of command responsibility is described in the international legal framework.

Turkel Commission, pp.363-5 Turkel Commission recommendation no. 1

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t hat when convictions regarding allegations of serious int ernational crimes are secured, t hey are met wit h sent ences commensurat e t o t he crime. As ment ioned above, t he T urkel Commission also recommended enact ing legal provisions t o incorporat e t he doct rine of command or superior responsibilit y in domest ic legislat ion.

Right to effective remedies and reparation 646. T he commission was not in a posit ion t o t horoughly examine vict ims’ right t o benefit from effect ive remedies and reparat ion in t he t imeframe available. However, it would like t o emphasize that victims face significant obst acles that impede the fulfilment of t his right . All Palestinian victims are confronted wit h similar difficult ies, but impediment s faced by Gazan vict ims are compounded by t he particular context of the Gaza St rip, notably t he Israeli-imposed blockade - which prevents Palestinians in Gaza from exit ing t he St rip and from entering Israel - and t he recurrent bout s of act ive host ilit ies. Some of t he main challenges are summarised below.

647. A broadly defined legal exclusion wit hin Israel’s Law on t he Liabilit y of t he St at e 5712-1952 (Civil Torts Law), known as t he “combat action” exempt ion, prevent s vict ims from claiming compensat ion from t he Government of Israel for act ions t aken while “combat [ing] terror, hostile acts or insurrection”, even when t here are clear allegat ions of violat ions of international law. 1229 A furt her impediment for vict ims from Gaza t o seek compensat ion for damages is t he statute of limitations applied under t he Civil T ort s Law, which is reduced from t he usual seven years t o only t wo years from t he day of t he event during which t he injury t ook place.1230 Prior t o this, in order to retain the possibility to make a claim, vict ims must submit written notice to the Ministry of Defence within 60 days. This procedure is part icularly difficult to fulfil during act ive hostilities, especially when they last for an ext ended period of t ime, such as t hose of summer 2014.

648. Rest rictions on movement, which are almost t ot al in t he case of Gaza’s resident s, severely const rain victims’ ability t o claim compensat ion, in a number of ways. Rout ine procedures required of claimant s, such as signat ures by a claimant ’s lawyer, are oft en difficult , if not impossible, to accomplish. In addit ion, plaint iffs and wit nesses from Gaza are rout inely denied access t o Israeli court s in civil lawsuit s concerning compensat ion claims for cross-examinat ion or for examinat ion by medical specialist s, due t o t he blockade. T his almost complet e closure of Gaza also rest rict s t he ent ry of lawyers from Israel t o Gaza and t herefore effect ively prevent s in-person cont act wit h t heir client s.

649. High financial guarant ees imposed on t he plaint iff can be anot her fact or t hat prevent s Palestinian victims and t heir families from pursuing a claim in Israeli court s. 1231 T he cost s of making a claim include court and legal fees, as well as a guarant ee t hat is assessed according t o t he likelihood of the success of t he claim. Such cost s are frequent ly beyond t he means of P alest inians, especially in areas where povert y levels have risen subst ant ially in recent years due t o access and movement rest rict ions, such as Gaza.

Past accountability 650. Israel has failed t o hold accountable those responsible for alleged grave violations of int ernational humanitarian and human rights law result ing from IDF act ions durin g recent past act ive hostilities in Gaza. 1232 According t o t he informat ion available wit h regard t o Operat ion “Cast Lead”, of 52 criminal invest igat ions opened int o allegat ions of 1229 1230 1231 1232

A/69/347, paras 61-69 Submission from Adalah; A/69/347, paras 61-69 Submission from Adalah; A/69/347, paras 61-69 E.g. A/69/347, para 52.

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wrongdoing, t hree cases were submit t ed t o prosecut ion and resulted in four convict ions. In t hree other cases, disciplinary act ion was t aken against six officers. 1233 T hose cases t hat were pursued before t he courts were not in relation to the most serious violations alleged t o have been commit t ed during t he 2008-09 operat ion. In relat ion t o Operat ion “P illar of Defense”, as of April 2013, the MAG had not launched a single criminal invest igat ion. 1234 In relat ion to both operations, policy level decisions and possible responsibility of members of t he political, military and judicial est ablishm ent s were not invest igat ed. T his, coupled wit h t he very small percentage of prosecut ions and convictions and t he nat ure of t he cases result ing in indict ments, raise serious quest ions regarding t he effect iveness of t he current mechanisms t o hold t o account t hose responsible for t he most serious alleged crimes, wherever t hey may have t aken place.

651. T he picture is equally bleak when reviewing ot her dat a available. According t o t he information reviewed, of 36 investigations into the killings of Palestinians in the West Bank bet ween April 2011 and early 2015, t here had only been t wo indict ment s and one convict ion. 1235 Moreover, Yesh Din found t hat between 2010 and 2013, only 2.2 per cent of invest igat ions into alleged IDF offenses against Palestinians resulted in indictment s. 1236 In rare cases bet ween Sept ember 2000 and mid-2013 where convict ions were secured, sent ences were relatively short - in some cases very short - given that t hese cases involved deat hs of civilians, 1237 raising quest ions as t o whet her sent ences handed down were commensurat e with the gravity of the crimes. 1238 With regard to allegat ions of t ort ure and ill-t reatment, NGO t he Public Committee against Torture in Israel notes that over a 15 -year period (1999 t o 2014), not a single criminal investigation was opened int o t he hundreds of complaint s t hat it and ot hers have present ed t o t he relevant aut horit ies. 1239

B.

Palestine 652. Lit tle information was available t o t he commission, at the time of writ ing, regarding st eps t aken by t he St ate of Palestine and t he aut horit ies in Gaza t o conduct invest igat ions int o alleged serious violat ions of int ernat ional humanit arian and gross violat ions of int ernat ional human right s law.

653. T he commission is aware of the challenges faced by t he St ate of Palestine to fulfil its dut y in t his regard, notably relating to lack of access t o Gaza and t o t he divisions bet ween

1233

1234 1235

1236

1237

1238 1239

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B’Tselem: Israeli authorities have proven they cannot investigate suspected violations of international humanitarian law by Israel in the Gaza Strip, 5 September 2014, at http://www.btselem.org/accountability/20140905_failure_to_investigate (accessed on 31 M ay 2015); A/HRC/28/80/Add.1, para 79 Ibid.

As explained above the change in policy in April 2011 regarding the automatic opening of investigations of Palestinian fatalities in incidents outside of “combat activity”. See also A/HRC/28/80, para 18.

Yesh Din, Data Sheet, September 2014, at http://www.yeshdin.org/userfiles/file/datasheets/YeshDin%20-%20DataSheet%20M etzach%209_14%20%20Eng%20(1)%20(1).pdf (accessed on 31 M ay 2015) Yesh Din, Data Sheet, July 2013, at http://www.yeshdin.org/userfiles/file/datasheets/data%20sheet%20july%202013/ICAP%20Death%20cases%20investi gations%20and%20indictments_July%202013_ENG.pdf (accessed on 31 M ay 2015) This concern was also raised by the UN Secretary -General, see A/69/347, para. 53.

Public Committee Against Torture in Israel, Israel - Briefing to the Human Rights Committee for the Committee’s Review of the Fourth Periodic Report on Israel, September 2014 at http://www.stoptorture.org.il/files/PCATI%20submission%20to%20HRC%202014_0.pdf (accessed on 27 M ay 2015)

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t he West Bank and Gaza. On 26 March 2015, the Minist ry of t he Int erior of t he St at e of P alest ine informed the commission that, “[t]he Government of National Consensus, formed just days before t he at t ack, did not have a presence on t he ground in t he Gaza St rip effect ive enough t o enable it and it s judicial organs t o invest igat e such act s, and t he P alest inian P ublic P rosecut or’s Office has st ill not been able t o ex ercise it s legal jurisdict ion by invest igat ing and prosecut ing t he perpet rat ors of t hose act ions.” 1240 T hat said, t he St at e of P alest ine informed t he commission of it s willingness t o conduct invest igat ions as soon as t he process of reconciliation is completed. 1241 Furt her, it noted that effort s are underway t o unify t he t wo judicial syst ems, including t he Office of t he P rosecut or, which have essentially been operating in parallel in t he West Bank and Gaza for several years. 1242 In addit ion, the commission was informed that instructions were given t o t he Office of the Prosecutor (Gaza) to open investigations int o a number of cases, wit h no furt her det ail provided on t he nat ure of t hose cases or what progress, if any, has been made. 1243 654. T he commission takes note of the findings of the UN Committee of Experts in 2010 concerning investigations into violations allegedly committed by P alest inian act ors before and aft er the 2008-09 hostilities1244 conduct ed by t he P alest inian Aut horit y, t hrough t he P alest inian Independent Investigat ion Commission.1245 In 2010, t he Council of Minist ers est ablished a Minist erial Commit t ee t o follow up on t he recommendat ions of t he P alest inian Independent Invest igat ion Commission report . 1246 However, at t he t ime of writ ing, no information was available on the implementation of its report, present ed t o t he Council of Minist ers in February 2011.

656. In it s 2010 report , t he Commit t ee found t hat t he P alest inian Independent Invest igat ion Commission had “laid the groundwork for the commencement of proceedings against perpet rat ors and ot her measures suit ed t o provide redress t o t he vict ims”. 1247 However, t he commission is not aware of any st eps t aken, several years on, t o bring t o just ice t he perpetrators of alleged violations connected wit h the host ili t ies of 2008-09 and 2014. 1248 657. As for t he aut horities in Gaza, they provided no informat ion t o t he commission on specific cases or incident s in relation to which they may have opened an investigation. They t old t he commission that they had created a body t o investigate allegat ions of ext rajudicial killings. However, no informat ion was fort hcoming of t he det ails of t his body or of any invest igat ion it may have initiated, nor of any other invest igat ions it may have conduct ed, such as int o allegat ions of indiscriminat e rocket and mort ar fire. T here appears t o be no concert ed effort to investigat e such allegations in line with international st andards. Previous assessment s by UN human right s bodies indicat e t hat t he aut horit ies in Gaza have not conduct ed credible and genuine invest igations into past escalations of host ilit ies in recent

1240

1241 1242 1243 1244 1245 1246 1247 1248

Reply to requests for clarification from the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict from the M inistry of the Interior, State of Palestine (HRC/NONE/2015/36), p.7 (translated from the Arabic) M eeting with State of Palestine M inistry of Interior M eeting with State of Palestine Office of the Prosecutor Ibid.

As set out in A/HRC/12/48.

A/HRC/15/50, paras 65-75 and 96-97 A/HRC/15/50, para. 75 A/HRC/15/50, para. 98 A/HRC/16/24, paras 88-90; A/HRC/28/45, para. 30

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years, 1249 and have, in particular, failed t o conduct invest igat ions int o rocket and mort ar at t acks against Israel. 1250 International mechanisms 658. On 1 January 2015, t he Government of t he St at e of P alest ine lodged a declarat ion under art icle 12(3) of t he Rome St at ut e accept ing t he jurisdict ion of t he Int ernat ional Criminal Court (ICC) over alleged crimes committed "in the occupied P alestinian territory, including East Jerusalem, since June 13, 2014". On 2 January 2015, the Government of the St at e of P alestine acceded t o t he Rome St at ut e by deposit ing it s inst rument of accession wit h t he UN Secret ary-General. On 16 January 2015, as a matter of policy and practice, the P rosecut or of t he ICC opened a preliminary examination into t he sit uat ion in P alest ine in order t o est ablish whether the Rome St atute criteria for opening an investigation are met. 1251 659. During t his examinat ion, current ly underway, t he ICC seeks t o reach a fully informed det erminat ion as t o whet her t here is a reasonable basis t o proceed wit h an invest igat ion pursuant t o t he crit eria est ablished by t he Rome St at ut e. 1252 T he Court specifies t hat t here are “no t imelines provided in t he Rome St at ut e for a decision on a preliminary examination”, 1253 and that “[d]epending on the facts and circumstances of each sit uat ion, the Office will decide whet her to cont inue t o collect informat ion t o est ablish a sufficient factual and legal basis t o render a det ermination; initiate an investigat ion, subject t o judicial review as appropriate; or decline to initiate an investigation.” 1254 The Court act s in an independent and impart ial manner, examining alleged violat ions regardless of t he ident it y of the perpetrator. A central considerat ion for t he Court , in all such preliminary examinat ions, is t o assess whet her t here are credible nat ional invest igat ions and prosecut ions underway; only in t he absence of genuine nat ional processes will t he Court consider t aking furt her act ion.

660. On 2 April 2014, t he St at e of P alest ine acceded t o seven of t he nine core human right s t reaties and one of t he subst ant ive prot ocols wit hout reservat ion. 1255 T he t reat ies ent ered int o force on 2 May, 7 May and 2 July 2014 respect ively, t hereby formally

1249 1250 1251

1252

1253 1254 1255

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A/HRC/15/50, paras 100-101 A/HRC/16/24, para. 90 International Criminal Court, Palestine at http://www.icccpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20 and%20ref/pe-ongoing/palestine/Pages/palestine.aspx (accessed on 31 M ay 2015) Specifically, under article 53(1) of the Rome Statute, the Prosecutor shall consider issues of jurisdiction, admissibility and the interests of justice in making this determination. See International Criminal Court, The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, 16 January 2015, at http://www.icccpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx (accessed on 31 M ay 2015) Ibid.

Ibid.

The International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Rights of Persons with Disabilities; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in armed conflict.

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obligat ing t he St at e of Palest ine t o uphold t heir provisions. 1256 Also on 2 April 2014, it acceded t o Addit ional P rot ocol I of t he Geneva Convent ions of 1949. On 31 December 2014, t he St ate of Palestine also acceded t o 12 ot her int ernat ional t reat ies, including t he Geneva Convent ions and t heir Addit ional Protocols II and III, and the 1968 Convention on t he non-applicability of statutory limitations t o war crimes and crimes against humanity.1257 T he Commission welcomes these accessions and t he commitment, thereby, of t he St at e of P alest ine to adhere to t hese new legal obligat ions and t o submit t o scrut iny by t he bodies t hat periodically monit or implement at ion of t he t reat ies.

661. Israel is not a St at e party to the Rome St atute. With regard t o t he ICC, a st at ement on t he websit e of t he St at e Compt roller, announcing t he launch of his aforement ioned inquiry (see above), st ates that “[a]ccording to principles of international law when a St at e exercises it s aut hority to objectively investigate accusations regarding violations of the laws of armed conflict , t his will preclude examinat ion of said accusat ions by ext ernal int ernational tribunals (such as t he Int ernat ional Criminal Court in T he Hague).” 1258 As elaborat ed in t he legal framework above, Israel is bound by it s obligat ions under int ernat ional humanit arian law and int ernat ional human right s law.

C.

Assessment 662. In recent years, Israel has t aken significant st eps aimed at bringing it s syst em of invest igat ions into compliance with international standards. The Turkel Commission, it self an init iative of the Government of Israel, has helped to give momentum to these efforts, and has provided concret e recommendations as t o how t o go about it , a number of which have already been implemented by Israel. Notwithstanding progress achieved to dat e, significant furt her changes are required t o ensure that Israel adequat ely fulfils it s dut y t o invest igat e, prosecut e and hold perpetrators of alleged violations of international humanit arian law and int ernational human rights law accountable, in line with international standards, as out lined above. T he prompt implementation of all t he recommendat ions elaborat ed by t he T urkel Commission over t wo years ago would go a long way t o realising t his goal.

663. Given t hat invest igat ions int o t he 2014 host ilit ies are ongoing, it is t oo early t o assess whet her t here have been appropriate prosecut ions and convictions. Nevertheless, t he commission is concerned t hat the only indictments to dat e, almost one year after the events, are in connect ion with the relatively minor offense of t heft . It is furt her di st urbed by t he closure of t he criminal investigat ion into the killing of the four boys on the beach (see paras 30-31) wit hout further legal proceedings, despit e strong indications that t he act ions of t he IDF were not in conformity wit h international humanitarian law and t hat t he invest igat ion does not appear t o have been carried out in a t horough manner. In relat ion t o t he West Bank, t he commission was not in a posit ion t o examine invest igat ions int o t he aforementioned 27 cases of P alest inian fat alit ies. Of 17 cases of killings of P alest inians bet ween 16 June and 22 August 2014, B’Tselem was informed t hat a criminal investigation had been opened int o 12 and a limited investigat ion had been launched int o t hree cases; in

1256

1257

1258

OHCHR press briefing notes on Palestine, 2 M ay 2014, at http://unispal.un.org/UNISPAL.NSF/0/262AC5B8C25B364585257CCF006C010D (accessed on 31 M ay 2015) For more details, see International Committee of the Red Cross at https://www.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountry Selected.xsp?xp_countrySelected=PS (accessed on 31 M ay 2015) Israel State Comptroller, The State Comptroller investigation of operation Tzuk Eitan- Protective at http://www.mevaker.gov.il/he/publication/Articles/Pages/2015.1.20-TzukEItan.aspx?AspxAutoDetectCookieSupport=1 (accessed on 31 M ay 2015).

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one case, no response was received; and in anot her, t he milit ary was not aware of t he incident . 1259 664. T he commission is concerned t hat impunity prevails across the board for violat ions of int ernational humanitarian and human rights law allegedly commit t ed by Israeli forces, whet her it be in the context of active hostilities in Gaza or killings, torture, and ill-treatment in t he West Bank. Israel must break wit h it s recent lament able t rack record in holding wrong-doers account able, not only as a means t o secure just ice for vict ims but also t o ensure t he necessary guarant ees for non-repet it ion. T hose responsible for suspect ed violat ions of international law at all levels of the political and military establishment s must be brought t o just ice. An import ant fact or in enabling such a process will be t he implementation of t he T urkel Commission’s recommendat ions 1 and 2 concerning legal reform wit h regard t o internat ional criminal law offenses t hat are current ly not found in Israeli law and t o t he incorporation of the doctrine of command or superior responsibilit y.

665. T he commission emphasizes that the rights of victims should be at t he centre of any account abilit y process. Palestinian victims are systematically denied t heir right to effect ive remedies and reparat ion due t o an array of obst acles. Vict ims – in some cases repeat edly suffering violat ions in recent years - have a right t o know t he t rut h and t o receive rest it ut ion.

666. P alest inian aut horit ies have consist ent ly failed t o ensure t hat perpet rat ors of violat ions of international humanitarian law and int ernational human rights law are brought t o just ice, and t hat Israeli vict ims are grant ed t heir right t o effect ive remedies and reparat ion. With respect to the local aut horities in Gaza, no steps appear to have been t aken t o initiate investigations into actions by P alestinian armed groups, seemingly due t o a lack of polit ical will. The Palest inian Aut horit y claims t hat it s failure t o open invest igat ions result s from insufficient means t o carry out investigat ions in a t errit ory over which it has yet t o re-establish unified control. The commission is concerned t hat cont inuing polit ical divisions also cont ribut e significantly t o impeding just ice for all vict ims of violat ions by P alest inian armed groups. The absence of measures to initiate criminal pr oceedings against alleged perpet rators calls into quest ion the stated det ermination of the Palestinian Aut hority t o achieve account abilit y. In line wit h t heir legal obligat ions, t he aut horit ies must t ake urgent measures t o rect ify t his long-st anding impunit y.

667. Comprehensive and effect ive account abilit y mechanisms for violat ions allegedly commit t ed by Israel or P alest inian act ors will be a key deciding fact or as t o whet her P alest inians and Israelis are t o be spared yet anot her round of host ilit ies and spikes in violat ions of int ernat ional law in t he fut ure.

VIII. A.

Conclusions and recommendations Concluding observations 668. The commission was deeply moved by the immense suffering of Palestinian and Israeli victims, who have been subjected to repeated rounds of violence. The victims expressed their continued hope that their leaders and the international community would act more resolutely to address the root causes of the conflict so as to restore

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B’Tselem, Follow-up: M ilitary Police and M AG Corps investigations of civilian Palestinian fatalities in West Bank since new policy imposed, updated 30 M ay 2015, at http://m.btselem.org/accountability/military_police_investigations_followup (accessed on 27 M ay 2015).

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human rights, dignity, justice and security to all residents of the Occupied Palestinian Territory and Israel. In relation to this latest round of violence, which resulted in an unprecedented number of casualties, the commission was able to gather substantial information pointing to serious violations of international humanitarian law and international human rights law by Israel and by Palestinian armed groups. In some cases, these violations may amount to war crimes. The commission urges all those concerned to take immediate steps to ensure accountability, including the right to an effective remedy for victims.

669. With regard to Israel, the commission examined carefully the circumstances of each case, including the account given by the State, where available. Israel has, however, released insufficient information regarding the specific military objectives of its attacks. The commission recognizes the dilemma that Israel faces in releasing information that would disclose in detail the targets of military strikes, given that such information may be classified and jeopardize intelligence sources. Be that as it may, security considerations do not relieve the authorities of their obligations under international law. The onus remains on Israel to provide sufficient details on its targeting decisions to allow an independent assessment of the legality of the attacks conducted by the Israel Defense Forces and to assist victims in their quest for the truth.

670. The commission is concerned that impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces, whether it be in the context of active hostilities in Gaza or killings, torture and ill-treatment in the West Bank. Israel must break with its recent lamentable track record in holding wrongdoers accountable, not only as a means to secure justice for victims but also to ensure the necessary guarantees for non-repetition.

671. Questions arise regarding the role of senior officials who set military policy in several areas examined by the commission, such as in the attacks of the Israel Defense Forces on residential buildings; the use of artillery and other explosive weapons with wide-area effects in densely populated areas; the destruction of entire neighbourhoods in Gaza; and the regular resort to live ammunition by the Israel Defense Forces, notably in crowd-control situations, in the West Bank. In many cases, individual soldiers may have been following agreed military policy, but it may be that the policy itself violates the laws of war.

672. The commission’s investigations also raise the issue of why the Israeli authorities failed to revise their policies in Gaza and the West Bank during the period under review by the commission. Indeed, the fact that the political and military leadership did not change its course of action, despite considerable information regarding the massive degree of death and destruction in Gaza, raises questions about potential violations of international humanitarian law by these officials , which may amount to war crimes. Current accountability mechanisms may not be adequate to address this issue.

673. With regard to Palestinian armed groups, the commission has serious concerns with regard to the inherently indiscriminate nature of most of the projectiles directed towards Israel by these groups and to the targeting of Israeli civilians, which violate international humanitarian law and may amount to a war crime. The increased level of fear among Israeli civilians resulting from the use of tunnels was palpable. The commission also condemns the extrajudicial executions of alleged “collaborators�, which amount to a war crime.

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674. The Palestinian authorities have consistently failed to ensure that perpetrators of violations of international humanitarian law and international human rights law are brought to justice. The commission is concerned that continuing political divisions contribute significantly to the obstruction of justice for victims of violations by Palestinian armed groups. The absence of measures to initiate criminal proceedings against alleged perpetrators calls into question the stated determination of the Palestinian Authority to achieve accountability. In accordance with their legal obligations, the authorities must take urgent measures to rectify this long -standing impunity.

675. Comprehensive and effective accountability mechanisms for violations allegedly committed by Israel or Pales tinian actors will be a key deciding factor of whether Palestinians and Israelis are to be spared yet another round of hostilities and spikes in violations of international law in the future.

B.

Recommendations 676. The persistent lack of implementation of recommendations – made by previous commissions of inquiry, fact-finding missions, United Nations treaty bodies, special procedures and other United Nations bodies, in particular the Secretary-General and OHCHR – lies at the heart of the systematic recurrence of violations in Israel and the Occupied Palestinian Territory. Bearing in mind this wealth of guidance, the commission will not elaborate an exhaustive list of recommendations, which would repeat concerns registered by other bodies. Rather, the commission calls upon all duty bearers to implement fully all recommendations made by the above-mentioned bodies without delay in order to avert a crisis similar to that of summer 2014 in the future.

677. The commission calls upon all parties to fully respect international humanitarian law and international human rights law, including the main principles of distinction, proportionality and precaution, and to establish promptly credible, effective, transparent and independent accountability mechanisms. The right of all victims to an effective remedy, including full reparations, must be ensured without further delay. In this context, the parties should cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened.

678. The commission also calls upon Israelis and Palestinians to demonstrate political leadership by both refraining from and taking active steps to prevent statements that dehumanize the other side, incite hatred, and only serve to perpetuate a culture of violence.

679. The commission calls upon the Government of Israel to conduct a thorough, transparent, objective and credible review of policies governing military operations and of law enforcement activities in the context of the occupation, as defined by political and military decision-makers, to ensure compliance with international humanitarian law and human rights law, specifically with regard to: (a) The use of explosive weapons with wide-area effects in densely populated areas, including in the vicinity of specifically protected objects ;

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(b)

The definition of military objectives;

(c)

The tactics of targeting residential buildings;

(d)

The effectiveness of precautionary measures;

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(e) The protection of civilians in the context of the application of the Hannibal directive; (f) Ensuring that the principle of distinction is respected when active neighbourhoods are declared “sterile combat zones�; (g)

The use of live ammunition in crowd control situations.

680. The review should also examine mechanisms for continuous review of respect for international humanitarian law and human rights law during military operations and in the course of law enforcement activities in the context of the occupation.

681. The commission further calls upon the Government of Israel: (a) To ensure that investigations comply with international human rights standards and that allegations of international crimes, where substantiated, are met with indictments, prosecutions and convictions, with sentences commensurate to the crime, and to take all measures necessary to ensure that such investigations will not be confined to individual soldiers alone, but will also encompass members of the political and military establishment, including at the senior level, where appropriate; (b) To implement all the recommendations contained in the second Turkel report, in particular recommendation no. 2 calling for the enactment of provisions that impose direct criminal liability on military commanders and civilian superiors for offenses committed by their subordinates, in line with the doctrine of command responsibility; (c) To grant access to Israel and the Occupied Palestinian Territory for, and cooperate with, international human rights bodies and non-governmental organizations concerned with investigating alleged violations of international law by all duty bearers and any mechanisms established by the Human Rights Council to follow up on the present report; (d) To address structural issues that fuel the conflict and have a negative impact on a wide range of human rights, including the right to self-determination; in particular, to lift, immediately and unconditionally, the blockade on Gaza; to cease all settlement-related activity, including the transfer of Israel’s own population to the occupied territory; and to implement the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory; (e)

To accede to the Rome Statute.

682. The commission calls upon the State of Palestine: (a) To ensure that investigations into violations of international humanitarian law and international human rights law, including international crimes, by the Palestinian Authority, the authorities in Gaza and Palestinian armed groups, where substantiated, comply with international human rights standards and that full accountability is achieved, including through criminal proceedings; (b) To accelerate efforts to translate the declarations on Palestinian unity into tangible measures on grounds that would enable the Government of national consensus to ensure the protection of human rights and to achieve accountability for victims.

683. The commission calls upon the authorities in Gaza and Palestinian armed groups:

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(a) To respect the principles of distinction, proportionality and precaution, including by ending all attacks on Israeli civilians and civilian objects, and stopping all rocket attacks and other actions that may spread terror among the civilian population in Israel; (b) To take measures to prevent extrajudicial executions and eradicate torture, cruel, inhuman and degrading treatment; to cooperate with national investigations aimed to bring those responsible for violations of international law to justice; and to combat the stigma faced by families of alleged collaborators.

684. The commission calls upon the international community: (a) To promote compliance with human rights obligations, and to respect, and to ensure respect for, international humanitarian law in the Occupied Palestinian Territory and Israel, in accordance with article 1 common to the Geneva Conventions; (b) To use its influence to prevent and end violations, and to refrain from encouraging violations by other parties; (c) To accelerate and intensify efforts to develop legal and policy standards that would limit the use of explosive weapons with wide-area effects in populated areas with a view to strengthening the protection of civilians during hostilities; (d) To support actively the work of the International Criminal Court in relation to the Occupied Palestinian Territory; to exercise universal jurisdiction to try international crimes in national courts; and to comply with extradition requests pertaining to suspects of such crimes to countries where they would face a fair trial.

685. The commission recommends that the conducting a comprehensive review of the recommendations addressed to the parties by relevant commissions of inquiry and fact-finding ensure their implementation.

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Human Rights Council consider implementation of the numerous its own mechanisms, in particular missions and explore mechanisms to