Legal Framework: According to the report, international humanitarian law – which includes treaty law – in particular the provisions concerning occupied territories in the Fourth Geneva Convention of 1949, and customary international law norms that apply to both state and non-state armed groups – provides the legal framework of the conflict between Israel and Hamas. Moreover, individuals who deliberately or recklessly commit serious violations of IHL provisions may be charged with war crimes, and the relevant states or political bodies are required to conduct thorough and impartial investigations of any claims of war crimes allegedly committed by their armed forces. When necessary, it is also required to prosecute those responsible for such crimes.
Hamas: The report summarizes the IHL violations allegedly committed by Hamas and other Palestinian armed groups, including the indiscriminate firing of rockets into populated civilian areas within Israel and from populated areas within Gaza. It should be noted that while the report notes that the use of civilians as human shields is strictly prohibited and claims have been made that Hamas and other Palestinians armed groups resorted to such illegal practices, it also notes that no evidence of the use of civilians as human shields was found in the specific cases investigated by HRW. Still, the report does refer to violations allegedly committed by Hamas involving the use of lethal force against alleged collaborators and political opponents during and after the conflict.
According to the HRW, although Hamas officials have declared that the alleged IHL violations by the Palestinian armed groups will be investigated, to date, there have been no reports of the trial or punishment of any Palestinian for IHL violations. Still, the report noted that on several occasions, Hamas arrested members of other armed groups that carried out attacks against Israel after “Operation Cast Lead” ended.
Israel: The report summarizes the IHL violations allegedly committed by Israel during "Operation Cast Lead", including the use of white phosphorous munitions in populated areas; the killing of civilians with drone-launched missiles; [7] the killing of civilians waving white flags; [8] the use of heavy artillery in populated areas; the destruction of civilian property without military justification; and the use of Palestinians as human shields. According to previous HRW reports, there are 53 documented deaths of civilians in 19 incidents allegedly involving IHL violations. The report also mentions that the warning methods employed by Israel to alert the civilians in Gaza of impending military actions were ineffective, citing that they were too vague and did not provide instructions specifying courses of action to take in order to protect themselves from imminent attacks. In some cases, when the civilian population was instructed to take refuge in city centers, the city centers were also later attacked.
According to the report, Israel has failed to conduct a thorough and impartial investigation of the conduct of its armed forces. The Israeli Government has resisted calls both from within Israel and from the international community to establish an independent commission of inquiry, and all the investigations have been conducted internally by the IDF.
On 22 April 2009, IDF announced the results of its investigations of central claims and issues related to "Operation Cast Lead" [9] – five command investigations headed by Colonels who were not directly involved in the chain of command of the operation examined five different issues: attacks in which the military fired upon UN facilities, attacks on medical facilities and crews, allegations of the injury of civilians not involved in hostilities, the use of white phosphorous munitions, and the destruction of civilian infrastructures. According to the conclusions of the IDF, it operated in accordance with IHL norms and the harm to civilians and civilian objects were the result of the modus operandi of the Hamas and the other Palestinian armed groups, or due to unfortunate operational errors. The report states that these conclusions contradict the findings reported by HRW, other human rights investigations, the UN Board of Inquiry and the UN fact-finding mission. [10]
On 29 July 2009, the Israeli Ministry of Foreign Affairs published its first major findings of the investigations of the conflict, [11] which address the context of the operation and Israel's legal justifications for carrying it out. According to the Israeli report, the IDF has initiated investigations of over 100 complaints, which, at the time of the report, had resulted in 13 criminal investigations by the military police. However, the HRW report criticized the IDF investigations, claiming that 80 of the cases were categorized as "operational debriefings", and that only a few incidents were referred to a criminal investigation by the military police or the Military Advocate General. The HRW report further notes that on 17 September 2009 and 1 November 2009, the Ministry of Foreign Affairs published status reports of the Israeli investigations, including an update of the number of investigations and reports of one case in which disciplinary measures were taken against an IDF soldier charged with the unlawful use of a weapon in an incident of unauthorized firing at a UN convoy, and of another case in which disciplinary proceedings were conducted against a Colonel and Lieutenant Colonel for firing artillery in violation of military orders (although there were no casualties in those cases).
On 29 January 2010, following General Assembly Resolution 64/10, Israel released a highly detailed report about the investigation process. This update report presents an overview of the Israeli military justice system and an update on the investigations taking place. It notes that of the 36 criminal investigations that were initiated, 19 incidents involved alleged shootings at civilians and 17 incidents involved allegations of the use of civilians as human shields, the mistreatment of detainees and civilians, and pillage and theft. On 11 March 2010, the IDF military prosecutor announced that two indictments would soon be filed against two IDF soldiers who used a nine year old boy as a human shield and ordered him to open bags that they had suspected were booby-trapped with explosives. According to the HRW report, the Israeli update addresses several (but not all) of the incidents described in the Goldstone Report.
Recommendations: In the final section of the HRW report, HRW directs recommendations to all the relevant parties including Israel, Hamas, the UN Secretary General, the UN Security Council, the UN General Assembly, the UN Human Rights Council, the United States and the European Union, as well as to the Arab States, the Arab League and the Organization of Islamic Conference.
The report's recommendations to Israel focus on the need to conduct public, thorough, and impartial investigations of all the IHL violations allegedly committed during "Operation Cast Lead". HRW has also requested that Israel publish the videos recorded by the IDF during the drone attacks in which civilians died in order to enable review of its targeting practices. Moreover, the IDF should adequately compensate the victims of its violations of IHL in Gaza, and establish an independent body to process complaints of IHL violations and to monitor the relevant investigations. Finally HRW recommends that Israel cease its practice of relying mainly on operational debriefings by military units to determine whether a criminal investigation is required.
With regard to Hamas, the report recommends that it conduct a thorough and impartial public investigation of its alleged violations of IHL in accordance with international standards. Hamas should also conduct an independent review of the policy decision to launch Qassam and Grad rockets into civilian areas in Israel, and to provide compensation to the victims of its violations of IHL in Israel and Gaza. Finally, Hamas should establish a mechanism to investigate and hold accountable the members of any armed groups that violate IHL, and to clearly instruct all its commanders and fighters to respect IHL and refrain from indiscriminate attacks against civilians.
The recommendations to the UN Secretary General include a request to monitor the investigations conducted by the parties to the conflict in accordance with General Assembly Resolution A/64/L.48, and to report to the General Assembly by 26 July 2010. If the investigations continue to fall short of international standards, the report suggests that the Secretary General refer the Goldstone Report to the Security Council for follow-up, and that the Secretary General continue to emphasize the importance of accountability in order to achieve a peaceful solution to the Israeli-Palestinian conflict.
The HRW has asked the UN Security Council to call on Israel and Hamas to conduct thorough and impartial investigations and should the parties continue to fail to conduct such investigations, to refer the Gaza conflict to the prosecutor of the International Criminal Court. The UN General Assembly has also been requested to keep track of these matters through the Secretary General's upcoming report in compliance with Resolution A/64/L.48. HRW also recommends that the UN Human Rights Council continue to monitor the implementation of the Goldstone Report's recommendations by the parties to the conflict and the relevant UN bodies.
Finally, with regard to the other international players, such as the United States, the European Union states, the Arab states, the Arab League and the Organization of Islamic Conference, the report recommends, inter alia, that they urge the parties to the Gaza conflict to conduct thorough and impartial investigations according to international standards, underlining the importance of protecting the civilian population in the region and insisting that all military actions by all parties to the conflict be conducted in compliance with IHL.