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

On 15 September 2009, the UN Fact Finding Mission on the Gaza Conflict,[1]  headed by Justice Richard Goldstone, published its report [2]  on the violations of international humanitarian law (IHL) and international human right law (IHRL) that were committed in the context of "Operation Cast Lead."

The mission found that there is enough evidence to hold Israel responsible for war crimes, crimes against humanity, and other IHL and IHRL violations committed before and during "Operation Cast Lead." The mission also found that Hamas and other armed Palestinian groups are also responsible for war crimes and crimes against humanity, especially because of their indiscriminate rocket fire into Israel. The Mission called on the international community to initiate criminal investigations of the grave breaches of IHL committed during the operation on the basis of universal jurisdiction.

As part of its ongoing coverage of the relevant issues and reports related to "Operation Cast Lead," the IDI Terrorism and Democracy Newsletter presents a summary and a short discussion of the report.

On 3 April 2009, the President of the United Nations Human Rights Council established the United Nations Fact Finding Mission on the Gaza Conflict (hereinafter: "the Mission") following the Council's adoption of Resolution S-9/1[3] concerning "the grave violations of human rights in the Occupied Palestinian Territory, particularly due to the recent Israeli military attacks against the occupied Gaza Strip," at the end of its 9th Special Session. The Mission consisted of four members: Justice Richard Goldstone (South Africa: Chairman), Professor Christine Chinkin (United Kingdom), Ms. Hina Jilani (Pakistan), and Colonel Desmond Travers (Ireland).

During the three months of its work, the Mission visited the Gaza Strip twice – from May 30th to June 6th and from June 25th to July 1st. Public hearings were held in Gaza on June 28th and 29th, and in Geneva on July 6th and 7th. The Mission also visited Amman on July 2nd and 3rd. In addition, the Mission gathered relevant information and documentation from various organizations and persons.

According to its mandate, the Mission considered all the relevant events that took place within Israel territory, the West Bank, and the Gaza Strip from the beginning of the ceasefire between the State of Israel and Hamas on 19 June 2008 until 31 July 2009.

The Mission stated in its report that it had received the full cooperation of the Palestinian Authority, but that the Government of Israel had refused to cooperate. As a result of this lack of cooperation, the Mission was unable to enter Israel and the West Bank.

The Mission gathered information in several ways, and reviewed reports from different sources:[4]  interviews with victims, witnesses, and other persons with relevant information; site visits in Gaza; videos and photographs; medical reports; forensic analysis of weapons and ammunition collected on site; and public hearings in Gaza and Geneva.

The 575 page report is divided into five parts: Methodology, Context, and Applicable Law; the Occupied Palestinian Territories; Israel; Accountability and Judicial Remedies; and Conclusions and Recommendations. The final version of the report was published on 25 September 2009, and Justice Goldstone presented it to the Human Rights Council on 29 September 2009.

The report begins with an introduction to the historical development of the area since the Six-Day War in 1967, when Israel gained control over the West Bank and the Gaza Strip and enforced a legal regime, until the completion of the implementation of the Disengagement Plan from the Gaza Strip on September 2005. It also discusses the continuous attacks by the armed Palestinian groups – the direct attacks and suicide bombings, as well as the massive rocket firing from the Gaza Strip into southern Israel; the construction of the security fence; and the kidnapping of the Israeli soldier, Gilad Shalit.

With regard to the political developments in the area, the report refers to Israeli settlements, on one hand, and to the changes on the Palestinian side up to June 2007, when Hamas gained control over Gaza and became the de-facto authority in the area. This historical introduction concludes with a description of the informal six month lull that was agreed upon by the Government of Israel and Hamas, during which the number of rocket attacks against Israel decreased dramatically.

Legal framework – the Mission determined that the legal framework relevant to its investigation consisted of the right to self-determination, the relevant IHL provisions, international criminal law (ICL), and international human rights law (IHRL). With regard to the precise classification of the conflict, in general, the Mission refrained from classifying the conflict as either an "international armed conflict" or a "non-international armed conflict," and based its analysis on the provisions of customary international law that apply to both types of conflicts. Moreover, it should be noted that according to the Mission, Israel continues to be an occupying power in the Gaza Strip[5]  and, therefore, the relevant provisions of the Fourth Geneva Convention still apply to its operations and activities in this area.

The application of ICL provisions is relevant in cases of war crimes and crimes against humanity[6]  under the Geneva Conventions  and customary international law.[8]  With respect to IHRL, the Mission refers to the ICJ's Advisory Opinion, Legal Consequences[7] of the Construction of a Wall in the Occupied Palestinian Territory, in which the ICJ declared that the human rights conventions to which Israel is a state party also apply to the occupied territories.[9]  With regard to the IHRL, which applies to the Palestinian Authority's (PA) conduct within the territory under its regime, the Mission concludes that the PA is obliged to follow the customary international law provisions of the Universal Declaration of Human Rights and the Palestinian Basic Law.

The report begins this section with an overview of the economic and political isolation imposed by Israel on the Gaza Strip (the blockade). According to the Mission, the blockade has severely damaged the local economy, agriculture, and industry, which had already been weakened by the Israeli occupation. Moreover, the blockade exacerbated the difficulties, compromising the ability of the authorities in Gaza to respond to the emergency situations that arose during the hostilities.

The IDF deployed different types of attacks during the conflict. The operation began on 27 December 2009 with an air strike and navy assaults. The aerial attacks included missiles launched from helicopters and UAVs. On 3 January 2009, a ground invasion was initiated. It involved soldiers from armor and infantry brigades, as well as intelligence and combat engineer troops specially trained to neutralize the improvised explosive devices. The armed Palestinian groups responsible for the rockets and mortars launched towards Israel include Hamas, the Hamas’ Izz ad-Din al-Qassam Brigades, the al-Aqsa Martyrs’ Brigades, Islamic Jihad, the Abu Ali Mustafa Brigades, and the al-Naser Salah ad-Din Brigades.

While the actual number of Palestinian casualties of the IDF operation is unclear, the Mission has based its assessment on different reports by NGOs, official Palestinian publications, and Israeli publications, which were all published after the conflict had ended. These reports indicates that approximately 1400 Palestinians died during "Operation Cast Lead." The main disagreement between the reports is the classification of the casualties, especially of the members of the Hamas police forces, which the IDF considers to be members of the Palestinian armed forces, and not civilians. The Mission also referred to the Israeli claim that at least some of the civilians killed had directly participated in the hostilities and were, therefore, legitimate targets. According to the Mission, this claim cannot be discounted, although the Mission has not found any information to confirm these claims. Nine Israeli soldiers were killed in the Gaza Strip.[10]

The report proceeds to examine the IDF attacks against seven government buildings[11]  and 30 municipal facilities in Gaza. The Mission focused its investigation on the IDF attacks against the Palestinian Legislative Council (PLC), the main prison facility, and the local police forces (an attack that caused the death of approximately 240 local policemen). The Mission concluded that the government buildings were directly attacked by the IDF because they were part of the "Hamas terrorist infrastructure,"[12]  although none of these targets served as military targets. The PLC building was not used solely by the Hamas administration (it also served the civilian population of the area); the same goes for the main prison, which was used to hold criminals. With regard to the police forces, the Mission stated that they cannot be regarded as an integral part of the Hamas military wing. Therefore, the direct attacks on these facilities constituted an illegal attack against civilian objects under article 52 of Additional Protocol I to the Geneva conventions (API).

The Mission investigated the Israeli claim that armed Palestinian groups deliberately operated from within residential areas in order to be shielded by the protection granted to the civilian population in the area. The Mission concluded that armed Palestinian groups operated from within urban areas while launching rockets and fighting the IDF forces. However, the Mission could not gather any information that indicated a deliberate misuse of medical facilities and ambulances, the use of booby-traps around and within civilian houses by armed Palestinian groups, or the use of any mosques to launch attacks against IDF or to store weapons. The Mission also could not find any evidence to suggest that the urban warfare methods of the armed Palestinian groups were deliberately executed in order to be protected from attacks (the Mission even implied that armed Palestinian groups were compelled to resort to these methods as the IDF forces closed in on them, forcing them to withdraw into urban centers), or that civilians were forced to remain in these areas for the purpose of shielding the armed groups. It should be noted, however, that the Mission mentioned the reluctance of some persons interviewed to discuss the conduct of the Palestinian armed forces.[13]

With respect to Israel's obligation to take feasible precautions to protect the civilian population and civilian facilities in the Gaza Strip, the report states that Israel made significant efforts to issue warnings.[14]  Moreover, in most cases, when these warning were sufficiently specific, civilian lives were spared. However, the report also suggests that in certain cases, the warnings were not specific enough, which undermined their effectiveness, especially regarding the pre-recorded telephone warnings and leaflets by the IDF. The report also refers to the IDF's practice of "roof knocking,"[15]  and found it to be ineffective and even illegal (as it constitutes a direct attack against civilian facilities).
The Mission investigated the IDF attacks that utilized white phosphorous in the vicinity of the UNWRA compound in Gaza City, as well as the Al-Quds and Al-Wafa hospitals. With regard to the UNRWA compound, the Mission concluded that despite Israeli claims that the launching of high explosive missiles containing white phosphorous was not directed at the compound, and that the damage to the UNWRA headquarters was an unfortunate result of warfare in urban spaces, the IDF should have anticipated the damage to the compound (due to its high technological abilities and comprehensive intelligence capabilities).

Regarding the attacks on the hospitals, the Mission did not find information indicating that hospitals were misused by armed Palestinian groups. The Mission based its conclusion on interviews of hospital personnel and on the fact that Israel did not publish any credible information or claims regarding the misuse of hospitals by armed Palestinian groups. The Mission concluded that the IDF attacks violated article 18 and 19 of the Fourth Geneva Convention, and articles 57(2)(b) and (c) of API (which reflects CIHL).
The report goes on to accuse the IDF of indiscriminately launching attacks against the civilian population in the incident that occurred on al-Fakhura Street (next to a UNRWA school in which 1368 people took shelter),killing at least 35 people. According to the Mission, Israeli authorities released conflicting explanations of the circumstances of the attack, which undermined Israel's claim that the attack was necessary and proportionate.

The Mission also found that the IDF conducted deliberate attacks against the civilian population, including attacks on houses of civilians, the killing of civilians holding white flags, and attacks on mosques and on condolence tents. According to the report, these attacks, which are described in a very detailed manner in the report,[16]  occurred notwithstanding the fact that the IDF forces on the ground knew that the facilities and people targeted were not military objects.

With regard to the attack on the house of the al-Daya family, which caused the death of 22 family members (including 12 children under the age of 10), the IDF admitted it was an "operational error"; the attack was intended to be directed at a building next door, which was a weapon's storage facility. Taking this avowal into considerations, the Mission concluded that despite certain unresolved questions related to the fact that the original target was never attacked, it could not determine that the case was one of willful killing. Nevertheless, the Mission concluded that the question of state responsibility for international wrongful acts still remains.

The Mission also referred to the IDF's use of white phosphorous, flechette missiles, and dense inert metal explosives. While acknowledging that the use of these weapons is not prohibited under international law, the Mission did conclude that the use of these weapons in built-up areas by the IDF was systematically reckless. The Mission did not investigate allegations of the use of depleted and non-depleted uranium munitions by the IDF.

The report emphasizes the damage caused by IDF attacks on the foundations of civilian life in Gaza: destruction of the industrial infrastructure, food production, water installations, sewage treatment plants, and housing. According to the report, there was no military justification for such destruction, and its sole purpose was to harm the civilian population by further diminishing their food supplies, the availability of drinking water, and the quality life of the residents of the Gaza Strip (bearing in mind the tough conditions which prevailed even before these attacks due to the blockade). The Mission determined that the Israeli attacks constituted a deliberate destruction of supplies that are crucial to the survival of the population.

The Mission also addressed four allegations of the implementation of the "Johnnie Procedure" by the IDF, which consists of the use of uninvolved civilian to inspect houses suspected of harboring hostile forces or of being booby-trapped. One of the victims, Majdi Abd Rabbo, detailed how the IDF soldiers had seized him for 3 days without granting him any food or water, forced him to endanger his life by entering houses in which fighters of the al-Qassam Brigades were hiding, and in one incident, even to persuade the fighters to come outside under the false claim of the ICRC presence in the area.

The Mission noted the testimonies of persons who claimed to have been used as human shields by IDF soldiers, and opined that their testimonies seemed credible. These stories were compatible with anonymous IDF testimonies as part of the "Breaking the Silence" NGO project.

The Mission concluded that the IDF soldiers violated articles 28 and 31 of the Fourth Geneva Convention, article 51(2) of API (which reflects CIHL), as well as article 37 of API in the case of Majdi Abd Rabbo.[17]  Furthermore, the Mission determined that the soldiers violated the Israeli High Court of Justice ruling on the prohibition of the "early warning procedure."[18]  These acts also violated articles 6, 7, and 9 of the ICCPR and constituted grave breaches of the Geneva Conventions and, therefore, constitute war crimes.

With regard to allegations regarding the deprivation of liberty, the Mission interviewed several witnesses and concluded that many Palestinians were held in IDF custody during "Operation Cast Lead" in locations near the Israeli border (the Green Line). None of the witnesses took any part in the hostilities, nor did they pose any threat to the IDF soldiers. Some of them were carrying white flags when they were captured. The Mission also concluded that IDF soldiers exposed these civilians (including women and children) to inhuman and degrading treatment, terrorizing, intimidating, and humiliating them. Some of the detainees were held in an area near artillery and tanks positions, exposing them to great danger and intensifying their fear. Many of the detainees were transferred to Israel territory where they were subject to interrogations and torture, and were denied due process.

The Mission found that Israel violated articles 4, 5, 27, 31, and 76 of the Fourth Geneva Convention, as well as articles 75 and 76 of API (which reflects CIHL), articles 7, 10, and 14 of ICCPR, and the provisions of the Convention against Torture. All of these violations amount to war crimes committed by the IDF.

The report addressed the objectives and strategy of Israel's military operations in the Gaza Strip. This analysis was based on all the information that was available to it concerning the plans and the means at the disposal of the IDF. The Mission also mentioned the elaborate legal mechanism put in place before and during the operation. Taking into account all this information together with official IDF statements that almost no errors occurred during the operation, the Mission concluded that the events described in the report were the result of deliberate planning and policy decisions.

According to the report, the IDF's tactics (some of which were also used in Lebanon during Israel's conflict with Hezbollah) were calculated to involve a disproportionate amount of force, and to cause great damage to civilian property and infrastructure. The Mission based its conclusions, inter alia, on statements by Israeli leaders that justified the disproportionate response to the rocket launchings ("destroy 100 homes for every rocket fired"). This indicates that the IDF operations were, in fact, reprisals against civilians, which is forbidden under IHL.
The Mission addressed the situation of Corporal Gilad Shalit, an IDF soldier who was captured by armed Palestinian fighters on June 2006. According to the Mission, Shalit meets the requirements of a prisoner of war under article 4 of the Third Geneva Convention and, therefore, should be granted visits by the ICRC. However, the Mission expressed its concern regarding declarations made by Israeli officials that suggested that the blockade will continue until the release of Corporal Shalit. According to the Mission, such actions constitute collective punishment of the civilian population of the Gaza Strip.

The report also mentions the internal violence that took place before and during the armed conflict between members and supporters of Hamas and Fatah. The Mission examined several cases in which Fatah affiliated personnel were killed or tortured by members of the Hamas' security forces or by other armed groups in the Gaza Strip. The Mission acknowledged that the threat of retaliation might explain the reluctance of several witnesses to reply to the Mission's questions concerning the conduct of the Hamas' fighters during the conflict. Such actions violate the Universal Declaration of Human Rights and the Palestinian Basic Law.

The chapter regarding the occupied Palestinian territories concludes with the Missions' examination of the situation in the West Bank. The Mission found that during "Operation Cast Lead," Israeli forces used excessive force against Palestinians in the West Bank, and that thousands of Palestinians were placed in detention in Israel.[19]  Most of the detainees were charged or convicted by the Israeli military court system; many of them were held in administrative detention under the Israeli "Unlawful Combatants Act." [20]

The Mission mentioned that during the hostilities, restrictions on movement in the West Bank were tightened; Israel imposed a closure on the West Bank for several days and some areas were declared "closed military areas." The Mission also addressed the Israeli plans to expand the settlements in the West Bank (which are illegal according to article 49(6) of the Fourth Geneva Convention), and to build in East Jerusalem. The Mission found that the restrictions imposed on the Palestinians in the West Bank were disproportionate relative to any military objective served. Moreover, the Mission expressed its concern regarding the lack of protection provided by the Israeli authorities to Palestinians in the West Bank, especially with respect to violence by settlers.

The report mentions that since 2001, over 8000 rockets and mortars were launched against southern Israel. Moreover, during the period of time between 18 June 2008 (the beginning of the ceasefire) and 18 January 2009 (the end of "Operation Cast Lead"), rockets fired from the Gaza Strip by armed Palestinian groups killed three civilians inside Israeli territory and one IDF soldier. Two Palestinian girls were also killed in these attacks in the Gaza Strip. Over 1000 Israeli civilians were injured or traumatized as a result of the rocket and mortar attacks. The Mission acknowledged that the rockets hit civilian property and facilities, such as houses, cars, synagogues, and schools (which led to the temporary closing of the schools).

The Mission concluded that the rockets were fired indiscriminately, deliberately targeting and terrorizing the civilian population. The Mission cited public statements by Hamas and other armed groups, which expressed their intention to target the civilian population in retaliation for IDF attacks against the civilian population of the Gaza Strip. These actions by armed Palestinian groups constitute war crimes, and perhaps even crimes against humanity.

The report expresses great satisfaction with the efforts made by the Israeli Government to protect the civilian population against the rocket attacks, as well as concern about the lack of protection of unrecognized Palestinian towns within Israel.

The Mission also expressed its concern regarding the reports it had received indicating that individuals and groups that criticized the IDF operation in the Gaza Strip were subject to repression and detention by the Israeli authorities. Most of these detentions resulted from unauthorized protests. Moreover, there were claims that Palestinian citizens of Israel, who were detained by the Israeli police forces and General Security Services (Shabak), were subjected to physical abuse and racial comments. The Mission also mentioned that among the protesters brought before the Israeli courts, Palestinian Israelis were disproportionately held in detention pending trial. Additionally, the Israeli authorities acted in the diplomatic sphere to prevent foreign governments from funding humanitarian organizations such as "Breaking the Silence."

The report also addresses the media ban in place from 5 November 2008 and until 23 January 2009 that prevented the media from entering the Gaza Strip. One journalist was even arrested on two occasions for illegally entering the Gaza Strip (Israeli citizens were banned from accessing the Gaza Strip ever since the abduction of Corporal Shalit on security grounds). Moreover, humanitarian organizations are still being denied access to the Gaza Strip. The report also mentions the Israeli High Court of Justice ruling, issued on 25 January 2009, which held that reporters must always be granted free access to the Gaza Strip, unless the security situation forces the Israeli authorities to close down the Erez crossing.

The Mission concluded that the ban imposed on access to Gaza by media and humanitarian organization runs contrary to Israel's human rights obligations under the ICCPR.

The Mission stressed Israel's obligations to investigate any suspicions of serious violations of IHL and IHRL. Israel claimed that appropriate investigations were conducted by the military, and that whenever allegations of criminal misconduct by IDF soldiers were raised, criminal investigations were initiated. However, the Mission found these internal military investigations to be insufficient and called for a public, independent, and impartial investigation.

With regard to the proceedings by the Palestinian Authorities, the Mission stated that there was no evidence of any system of public monitoring or accountability for the serious violations of IHL and IHRL that took place either in the Gaza Strip or in the West Bank.
As a result of the unwillingness of the Israeli Government to conduct open criminal investigations as required by international law, the Mission called on other states to apply their universal jurisdiction powers and to investigate allegations of serious violations of IHL in accordance with the Geneva Conventions of 1949.

This part of the report concludes with a discussion of the issue of reparations. According to the Mission, Israel has an obligation to repair the damage or compensate the losses caused by the breach of IHL and IHRL.[21]  However, according to the amendments to the Civilian Tort Act (State Responsibility), the State is exempted from compensating damage caused by "combat actions." Moreover, according to this law, application for compensation of damage in the occupied Palestinian territories must be submitted within a very limited timeframe.[22]

The report concludes with the Mission's recommendations regarding accountability for serious violations of international humanitarian law; reparations; serious violations of human rights law; the blockade and reconstruction; the use of weapons and military procedures; the protection of human rights organizations and supporters; and follow-up to the Mission’s recommendations. These recommendations address various international bodies, such as the Human Rights Council, the UN Security Council, the Israel Government, the Palestinian Authority, the armed Palestinian groups and the international community. They include the following actions:
The Human Rights Council (HRC) should endorse the recommendations of the report and take the appropriate measures to implement them. Moreover, with regard to the international crimes allegedly committed during the conflict, the HRC should refer the report to the UN General Assembly and to the Security Council, and submit it to the ICC prosecutor.

The UN Security Council should call on the Israeli Government, under article 40 of the UN Charter, to take all the appropriate steps to launch an appropriate, independent, and open investigation within a period of three months. Moreover, the Security Council should establish an independent committee to monitor the domestic legal actions taken by the Israel Government related to such investigations, and issue a report. Should Israel refuse to establish such an investigation, the Mission calls on the Security Council to act under Chapter VII of the UN Charter and refer the situation to the prosecutor of the ICC.

The Prosecutor of the ICC should consider the Palestinian Authority's request under Article 12(3) to the Rome Status to initiate an investigation of the events in Gaza. The Mission considers that accountability for the victims in the interest of peace and justice in the region require that the Prosecutor expedite the required legal determination.

The UN General Assembly should request a UN Security Council report on the measures taken to implement the Mission's recommendations. Moreover, the General Assembly should consider establishing an escrow fund for compensation to the Palestinians who suffered loss and damages, and should require the government of Israel to pay the required amounts. An urgent discussion on the use of certain weapons, especially white phosphorous, flechette missiles, and heavy metal should also be held.

The State of Israel should immediately terminate the border closures and restrictions on passage through border crossings and by sea into the Gaza Strip in accordance with the existing agreements. Israel should also initiate a review of the rules of engagement and open fire regulations for military and security personnel. Israel should allow free passage between the Gaza Strip and the West Bank, and release all the Palestinians who are detained in Israeli prisons for reasons related to the occupation, including the members of the Palestinian Legislative Council.

The armed Palestinian groups should respect the rules of IHL and cease indiscriminate rocket attacks against the Israeli civilian population. The armed groups should also release Corporal Gilad Shalit on humanitarian grounds, or at least recognize his prisoner of war status and grant him his IHL rights, which include enabling ICRC visits.

The Palestinian Authorities should ensure that the security forces obey the human rights norms as established in the Palestinian Basic Law and in relevant international law.

The international community should initiate criminal investigations in national courts under the universal jurisdiction clauses for the grave breaches of the Geneva Conventions of 1949. Humanitarian organizations should provide humanitarian aid, financial and technological, to the Palestinian population.

On 15-16 October 2009, the Human Rights Council held its 12th Special Session to address the human rights situation in the Occupied Palestinian Territory and in East Jerusalem. During the session, the Council adopted resolution S-12/1[23] that calls for the UN General Assembly to focus on the report during its 64th Session. The resolution also request that the UN Secretary General submit a report on the status of the implementation of the report's recommendations by the UN bodies to the Human Rights Council at its 13th Session.

The Goldstone Report contains very serious allegations against all parties to the recent conflict in Gaza. It suggests that Israeli forces engaged in war crimes and crimes against humanity, and violated numerous international norms. Many of the Mission's findings are shocking – a fact which calls for a robust investigation on the part of the Israeli authorities. Should the Israeli authorities fail to conduct a prompt, effective, credible, and independent investigation, one may expect intensified efforts by the international community to hold Israelis accountable.

Still, the report has a number of deficiencies that must be noted. While the Mission refers to the general situation and circumstances in the Gaza Strip as a result of the long period of Israeli control over the area and of the blockade since the Hamas gained control there, it does not address Israel's claim that its operation was justified as an act of self defense in response to eight years of continuous rocket attacks against Israel from the Gaza Strip. Although jus ad bellum issues do not dictate the rules governing conduct of hostilities (jus in bello), this omission, when juxtaposed to the reaffirmation of the Palestinian right to self-determination, is incongruous .[24]

Moreover, some of the Mission's methodological decisions are questionable. The Mission failed to examine some of the more blatant cases of violations by Hamas of civilian immunities (such as placing their headquarters in Shifa hospital and the extensive use of mosques for military purposes). It also seems to have relied too heavily on Palestinian sources to castigate the IDF, while noting that these same sources were often reluctant to discuss Hamas. It is difficult to accept that such accounts could be balanced and completely reliable. In addition, Israel's refusal to cooperate with the Mission led it to speculate concerning Israel's motives and to draw inferences, which do not lend themselves to a credible fact finding process.

With respect to its legal analysis, the Mission's conclusions regarding the status of Gaza as occupied territory prior to the operation can also be questioned; so does the Mission's tendency to apply norms governing international armed conflict to the situation (especially criminal law norms). More significantly, it is debatable whether the high threshold imposed by the Mission with relation to Israel's precautionary obligations and its arguments of necessity and proportionality represent sound law or policy for counter-terrorism operations conducted in densely populated cities. Furthermore, it is doubtful whether any military operating in such circumstances could meet such a high standard (e.g., thousands of civilian causalities and more than 10,000 houses were destroyed in military operations by U. S. forces in Fallujah in 2004; in 1993, hundreds of civilian casualties in two days of intense fighting in Mogadishu).

1. http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm
   
   
2. http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf
   
   
3. http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/A-HRC-S-91-L1.doc
   
   
4. A discussion of some other reports on "Operation Cast Lead" can be found in previous issues of the IDI Terrorism and Democracy Newsletter.
   
   
5. Paragraph 276 of the report.
   
   
6. Crimes against humanity include murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions, and other inhuman acts when they are part of a widespread or systematic attack against any civilian population.
   
   
7. Article 146 of the Fourth Geneva Convention requires states to enact the necessary legislation to exercise jurisdiction and provide effective penal sanctions for people committing grave breaches
   
   
8. A list of war crimes (which includes grave breaches of the Geneva Conventions) can also be found in article 8 of the Rome Statute of the International Criminal Court
   
   
9. ICJ's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, p. 178, paragraph 106.
   
   
10. According to Israeli sources, four of the nine were killed as a result of "friendly fire."
    
    
11. Including the Government Palace, the Archives building, the General Personnel Council, the Presidential Compound, and the Ministries of Interior, Justice, and Culture.
    
    
12. The Report, p. 96, paragraph 379.
    
    
13. The report, p. 111, paragraph 440.
    
    
14. During the armed conflict, 165,000 phone calls were made and 2,500,000 leaflets were dropped.
    
    
15. The dropping of a light explosive on the roof of buildings prior to attack.
    
    
16. Chapter XI of the Report, p. 158 – 194, paragraphs 704-885.
    
    
17. Article 37 of API prohibits perfidy.
    
    
18. HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel et al. v. Commander of the Central Region et al., 23 June 2005.
    
    
19. As of 1 June 2009.
    
    
20. For further discussions of the Unlawful Combatants Act, see previous issues of the IDI Terrorism and Democracy Newsletter.
    
    
21. Article 3 of the 1907 Fourth Hague Convention, article 51 of the First Geneva Convention, article 52 of the Second Geneva Convention, article 131 of the Third Geneva Convention, and article 148 of the Fourth Geneva Convention. Also in article 2 (3) of ICCPR, article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, article 14 of the Convention against Torture, and article 39 of the Convention on the Rights of the Child.
    
    
22. For a discussion related to the Civil Tort Act (State Responsibility), see the current issue of the IDI Terrorism and Democracy Newsletter.
    
    
23.  http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/12/docs/A-HRC-RES-S-12-1.pdf
    
    
24. For further discussion regarding the general jus ad bellum framework, see the second issue of the IDI Terrorism and Democracy Newsletter.