Doc's Talk: The Operation in Gaza - Factual and Legal Aspects

Tuesday, August 11, 2009

The Operation in Gaza - Factual and Legal Aspects

IMFA

I. EXECUTIVE SUMMARY

1. This detailed Paper discusses a range of factual and international legal issues relating to the military operation undertaken by the Israel Defence Forces (“IDF”) in Gaza in December 2008 - January 2009 (the “Gaza Operation”). 2. The Paper has been prepared at this time in order to place the Gaza Operation in its proper factual and legal context. On a number of issues the Paper offers only a provisional analysis as the IDF is still conducting comprehensive field and criminal investigations into allegations regarding the conduct of its forces during the Operation. Such investigations will be reviewed by the Military Advocate General and are subject to further review by the Attorney General. In addition, petitions may be filed for judicial review by the Supreme Court of Israel (sitting as the High Court of Justice).

3. The Paper addresses the context of the Gaza Operation and notes that Israel had both a right and an obligation to take military action against Hamas in Gaza to stop Hamas’ almost incessant rocket and mortar attacks upon thousands of Israeli civilians and its other acts of terrorism. Israel was bombarded by some 12,000 rockets and mortar shells between 2000 and 2008, including nearly 3,000 rockets and mortar shells in 2008 alone. Hamas specifically timed many of its attacks to terrorise schoolchildren in the mornings and the afternoons. These deliberate attacks caused deaths, injuries, and extensive property damage; forced businesses to close; and terrorised tens of thousands of residents into abandoning their homes.

4. The Paper notes that Hamas constantly worked to increase the range of its weapons and that, by late 2008, its rocket fire was capable of reaching some of Israel’s largest cities and strategic infrastructure, threatening one million Israeli civilians, including nearly 250,000 schoolchildren. Hamas also orchestrated numerous suicide bombings against Israeli civilians and amassed an extensive armed force of more than 20,000 armed operatives in Gaza.

5. The Paper also describes the numerous non-military approaches Israel pursued to try to stop the attacks before commencing the Gaza Operation, including urgent appeals to the U.N. Secretary General and successive Presidents of the Security Council to take determined action, and diplomatic overtures, directly and through intermediaries, to stop the violence. Hamas nonetheless continued, and in fact escalated, its cross border attacks. These attacks included a raid into Israeli territory from Gaza in June 2006 and the abduction of an IDF soldier, Corporal Gilad Shalit, who, more than three years later, remains in captivity, having been held incommunicado without access to the International Committee of the Red Cross (“ICRC”) or any other international body.

6. In a detailed legal analysis, including a survey of the relevant legal principles and State practice, the Paper notes that Israel’s resort to force in the Gaza Operation was both a necessary and a proportionate response to Hamas’ attacks. While the IDF continues to investigate specific incidents during the Operation, the Paper demonstrates that Israeli commanders and soldiers were guided by International Humanitarian Law, including the principles of distinction and proportionality. These principles, enshrined in IDF training, Code of Ethics and rules of engagement, required IDF forces to direct their attacks solely against military objectives and to try to ensure that civilians and civilian objects would not be harmed. Where incidental damage to civilians or civilian property could not be avoided, the IDF made extraordinary efforts to ensure that it would not be excessive in relation to the anticipated military advantage in each instance and as a whole. Both before and during the Gaza Operation, the IDF went to great lengths, as documented in the Paper, to ensure that humanitarian aid reached the Palestinian population, including by facilitating the delivery of 1,511 trucks carrying 37,162 tons.

7. By contrast, both before and during the Gaza Operation, Hamas committed clear grave violations of international law. The Paper documents Hamas’ deliberate rocket and mortar attacks against Israel’s civilian population, which violated the international law prohibition on deliberate attacks against civilians and civilian objects. It also documents deliberate Hamas tactics that put Gaza’s civilian population in grave danger. These included the launching of rocket attacks from within densely populated areas near schools and protected U.N. facilities, the commandeering of hospitals as bases of operations and ambulances for transport, the storage of weapons in mosques, and the booby-trapping of entire civilian neighbourhoods so that an attack on one structure would devastate many others. These actions, which are clearly shown in photographic and video evidence throughout the Paper, violated international law. Many of the civilian deaths and injuries, and a significant amount of the damage to property during the Gaza Operation, was attributable to Hamas’ tactic of blending in with the civilian population and its use of, or operations near, protected facilities and civilian property. The Paper also notes the direct injury and damage caused to Palestinians by the explosion of Hamas’ weapons factories and the falling of rockets short of their targets on Palestinians in Gaza.

8. The Paper addresses the acute dilemmas faced by Israel in confronting an adversary using its own civilian population as a shield. It details the extensive precautions taken by the IDF to avoid or limit harm to civilians in Gaza, while still having to achieve the necessary objective of stopping Hamas’ constant rocket and mortar fire on Israeli civilians and property. The IDF not only checked and cross-checked targets and used the least destructive munitions possible to achieve legitimate military objectives; it also implemented an elaborate system of warnings, including general warnings to civilians (through media broadcasts and leaflets) to avoid or minimise the presence of civilians in areas and facilities used by Hamas, regional warnings to alert civilians to leave specific areas before IDF operations commenced, and specific warnings (through telephone calls and warning shots to rooftops) to warn civilians to evacuate specific buildings targeted for attack. The IDF dropped more than 2.5 million leaflets and made more than 165,000 phone calls warning civilians to distance themselves from military targets.

9. In this Paper, Israel acknowledges that, despite the precautions taken, the Gaza Operation resulted in many civilian deaths and injuries and significant damage to public and private property in Gaza. Israel makes no attempt to minimise the human costs incurred. As former Prime Minister Olmert stated at the close of the conflict: “On behalf of the Government of Israel, I wish to convey my regret for the harming of uninvolved civilians, for the pain we caused them, for the suffering they and their families suffered as result of the intolerable situation created by Hamas.”

10. In analysing the legal aspects of the conflict, the Paper notes that civilian deaths and damage to property, even when considerable, do not necessarily mean that violations of international law as such have occurred. In particular, the principles of distinction and proportionality are only violated when there is an intention to target civilians or to target military objectives with the knowledge that it would cause harm to civilians that is excessive in relation to the anticipated military advantage. Hamas’ deliberate attacks against Israel’s civilian population violated such standards and thus constituted a violation of international law. The IDF’s attacks directed against Hamas military targets, despite their unfortunate effects on Gaza’s civilian population, did not.

11. The Paper also gives a detailed account of Israel's efforts to coordinate and facilitate humanitarian relief and assistance to the Palestinians in Gaza. It also documents repeated Hamas abuses of these arrangements, including Hamas’ launching of attacks during humanitarian pauses and directed at crossing points, and Hamas’ hijacking and theft of humanitarian supplies intended for those in need.

12. The Paper also gives previously unpublished details of the multiple IDF investigations into allegations made by various groups that violations of the law were committed. IDF investigative teams are currently examining approximately 100 complaints, including 13 criminal investigations opened so far, and will examine more complaints if and when filed. The Paper sets forth the preliminary findings of some of the IDF field investigations, including investigations relating to allegations concerning 1) incidents where U.N. and international facilities were fired upon or damaged; 2) incidents involving shooting at medical facilities, buildings, vehicles, and crews; 3) certain incidents in which many civilians were harmed; 4) the use of munitions containing white phosphorous; and 5) destruction of private property and infrastructure by ground forces. It provides as much information as can be released with regard to the investigations currently underway without comprising the integrity and independence of these investigations.

13. The field investigations constitute only the preliminary stage of an extensive legal process. They are subject to independent review by the Military Advocate General, who may order the opening of a criminal investigation. The decisions of the Military Advocate General are subject to review by the Attorney General and may also be reviewed by the Israeli Supreme Court (sitting as the High Court of Justice). Israel’s system for investigating alleged violations, including its judicial review process, is internationally recognised as thorough and independent; its procedures and institutions are similar to those in other Western countries.

14. Israel deeply regrets the civilian losses that occurred during the Gaza Operation. But Israel has both the responsibility and the right under international law, as does every State, to defend its civilians from intentional rocket attacks. It believes that it discharged that responsibility in a manner consistent with the rules of international law. Israel is committed to a thorough investigation of all allegations to the contrary and to making the results of these investigations and subsequent reviews public when they are completed.

TABLE OF CONTENTS

I. EXECUTIVE SUMMARY

II. INTRODUCTION

III. THE APPLICABLE LEGAL FRAMEWORK

IV. THE CONTEXT OF THE OPERATION

A. The Ongoing Armed Conflict with Hamas
B. Hamas’ Increasing Attacks on Israel During 2008
C. Israel’s Right and Obligation to Defend Itself and Its Citizens from Attack
D. Hamas’ Military Capabilities in Gaza
E. Stages of the Operation

V. THE USE OF FORCE

A. The Legal Framework

(1) The Principle of Distinction

(a) The Obligation Not to Target the Adversary’s Civilians
(b) The Obligation of Parties to an Armed Conflict Not to Jeopardise Their Own Civilians

(2) The Principle of Proportionality

(a) The Obligation to Weigh Military Objectives Against Incidental Civilian Harm
(b) The Obligation of Attacking Forces to Take Feasible Precautions to Minimise Incidental Civilian Harm
(c) The Parallel Obligation of Those Controlling Territory to Minimise Civilian Casualties

B. Hamas’ Breaches of the Law of Armed Conflict and War Crimes

(1) Deliberate Rocket Attacks Against Israeli Population Centres

(2) Abuse of Civilian Sites as Cover for Military Operations

(a) Staging of Attacks From Residential Areas and Protected Sites
(b) Use of Civilian Homes and Public Institutions as Bases of Operation

(3) Misuse of Medical Facilities and Ambulances

(4) Booby-trapping of Civilian Areas

(5) Blending in with Civilians and Use of Human Shields

(6) Exploitation of Children

(7) Interference with Humanitarian Relief Efforts

C. IDF’s Conduct of the Operation and Procedures to Ensure Compliance with International Law

(1) IDF Training and Legal Supervision

(a) The IDF’s Training System and Legal Supervision
(b) Comparison with Other Systems of Training and Supervision

(2) IDF Rules of Engagement During the Gaza Conflict

(3) IDF Pursuit of Legitimate Military Targets During the Gaza Conflict

(a) Targeting of Hamas Terrorist Infrastructure
(b) Targeting of Terrorist Operatives

(4) IDF Precautions During the Gaza Conflict

(a) Precautions Regarding Targeting and Munitions
(b) Advance Notice to Civilians
(c) Humanitarian Efforts

(5) Israel’s System for Investigating Complaints

(a) The Military Justice System
(b) Attorney General Review of Decisions of the Military Advocate General
(c) Supreme Court of Israel Judicial Review of Decisions of the Military Advocate and Attorney General
(d) Comparisons with Other Investigatory Systems

D. Complaints About the IDF’s Conduct of Operations

(1) The Status of Investigations

(2) Complaints about Specific Incidents

(a) Incidents Involving Harm to U.N. and International Facilities

(i) UNRWA School in Jabaliya (Fahoura School): 6 January 2009 128
(ii) UNRWA Field Office Compound: 15 January 2009
(iii) UNRWA Bureij Health Centre
(iv) UNSCO Gaza Compound: 29 December 2008
(v) UNRWA Asma Elementary School: 5 January 2009
(vi) UNRWA School: Beit Lahia Elementary School: 17 January 2009
(vii) UNRWA Vehicle Convoy: 8 January 2009
(viii) UNRWA Vehicle: 14 January 2009

(b)Incidents Involving Medical Facilities, Vehicles and Personnel

(i) Medical Facilities
(ii) Medical Vehicles
(iii) Medical Personnel

(c) Incidents Involving Multiple Civilian Casualties

(i) The Al-Daia Family Residence, Zeitun Neighbourhood: 6 January 2009
(ii) The House of Nazar Ri’an: 1 January 2009
(iii) The House of Dr. Abu el Eish: 17 January 2009
(iv) Attack on Truck Carrying Oxygen Tanks: 29 December 2008
(v) Alleged Attacks on Mosques

(3) General Concerns about IDF Operations

(a) The Use of Munitions Containing White Phosphorous and Flechettes

(i) Use of Munitions Containing White Phosphorous

(a) International Law Applicable to the Use of Incendiary
(b) Compliance With the Principle of Distinction
(c) Compliance with the Duty to Minimise the Risk to Civilians
(d) Compliance With the Principle of Proportionality
(e) Investigations and Lessons Learned

(ii) The Use of Munitions Containing Flechettes

(b) Destruction of Private Property

VI. CONCLUSION

VII. INDEX OF TERMS

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

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