Report of the UN Board of Inquiry on "Operation Cast Lead"

On May 4, 2009, a summary of the report of the UN Board of Inquiry into nine incidents involving death, injuries or damage on UN premises or in the course of UN operations during Israel's "Operation Cast Lead" in Gaza was delivered to the Security Council by the UN Secretary General, Ban Ki-Moon.[1] The Board of Inquiry found that the IDF was responsible for death, injuries and damages in seven of the nine incidents. In another case, the Board of Inquiry found that the Hamas (or other Palestinian militia) was responsible for the damages to a WFP warehouse, and in another incident, the Board of Inquiry could not reach a definitive conclusion. This article discusses the summary of the report.

On a number of occasions during "Operation Cast Lead" (the armed conflict between the State of Israel and the Hamas organization, which was waged between December 27, 2008 and January 19, 2009), United Nations personnel, premises and operations were adversely affected by the violence.

Following the cessation of the conflict, the United Nations Secretary General established a United Nations Headquarters Board of Inquiry (hereinafter: "Board of Inquiry") to review and investigate nine of these incidents in order to develop a clear understanding of their underlying facts and causes.
The nine incidents included:

1. Injuries occurring at and damage done to UNRWA[2] Khan Younis Preparatory "A" Girls School on December 29, 2008 and the subsequent death of the person injured.
2. Deaths occurring at the damage done to the UNRWA Asma Elementary School in Gaza City on January 4, 2009. 
3. Deaths and injuries occurring at and in the immediate vicinity of, and damage done to, the UNRWA Jabalia Preparatory Boys "C" School on January 6, 2009.
4. Injuries occurring at and damage done to the UNRWA Bureij Health Centre on January 6, 2009.
5. Small arms fire affecting an UNRWA convoy in the Ezbet Abed Rabou area on January 8, 2009 and related damage to a UN vehicle.
6. Injuries occurring at and damage done to UNRWA's Field Office compound in Gaza City on January 15, 2009.
7. Deaths and injuries occurring at and damage sone to the UNRWA Beit Lahia Elementary School on January 17, 2009.
8. Damage done to UNSCO[3] Gaza compound on December 29, 2008.
9. Damage done to the WFP[4] Karni warehouse between December 27, 2008 and January 19, 2009.

 

The Board of Inquiry Terms of Reference stipulates gathering all existing documentation related to the incidents; interviewing all relevant witnesses; visiting all the sites where the incidents occurred; producing a UN Board of Inquiry Headquarters Report on the incidents, which includes findings concerning the underlying facts of the incidents, their causes and the identity of those responsible for their occurrence, as well as recommendations concerning actions that the UN should take in order to avoid a recurrence of such incidents.

The Board of Inquiry consisted of five members: Mr. Ian Martin from the United Kindgom, who served as head, Mr. Larry D. Johnson of the United States, Mr. Sinha Basnayake of Sri Lanka, and Lieutenant Colonel Patrick Eichenberger of Switzerland.

The Board of Inquiry was convened on February 11, 2009 and submitted its report on April 21, 2009. Although the report is an internal and confidential UN document, the Secretary General decided to release a summary of the report to the Security Council.

The report is composed of two sections. The first section includes a detailed description of the aforementioned incidents and the conclusions of the Board of Inquiry. The second segment focuses on recommendations by the Board of Inquiry that emerged from the investigation.

1. Injuries occurring at and damage done to UNRWA Khan Younis Preparatory "A" Girls School on December 29, 2008 and the subsequent death of the person injured – This incident occurred on the second day of "Operation Cast Lead," and it should be noted that the IDF had the coordinates of the school.
   
   Opposite the school was a Civil Defense Center that housed a fire brigade. Following a warning by telephone of an upcoming attack against the Center, the firefighters warned the UNRWA guards remaining on the premises to leave the school, but they decided to stay. At 3:30 p.m., an explosion caused the death of one guard, the injury of the other, and damage to the school.
   
   The Board of Inquiry could not reach any conclusions as to the nature or origin of the missile and regarding the identification of the party to the conflict (if either) that was responsible for the resulting death, injury, and damage to the school.
   
   
2. Deaths occurring and the damage done to the UNRWA Asma Elementary School in Gaza City on January 4, 2009 – The school was opened as a shelter for Palestinians on January 5, 2009. UNRWA records show that 406 people sought shelter in the school during the  night in which the incident occurred. Most of the Palestinians who entered the school were searched for weapons (unless it was obvious that they were not carrying anything with them), and were registered. The school compound contains a playground, a building housing a canteen and two toilet blocks. The IDF was not notified of the fact that the school was being used as a shelter until the morning of January 6, 2009.
   
   At approximately 11:15 p.m., a missile fell within the school compound near the toilet blocks, killing three men who had left the building to go to the toilets only minutes before the attack. The missile also damaged the school. The Board of Inquiry found that the IDF had launched the missile from the air.
   
   According to the Board of Inquiry, it is possible, yet improbable, that the three men were engaged in military activity. No weapons or ammunition were found on the premises.
   
   The Board of Inquiry determined that the IDF had carried out a direct and intentional attack on the UN premises and by doing so, had breached the inviolability of that UN facility. Moreover, the IDF should have noticed hundreds of people moving into the UNRWA school as a result of the 300,000 warning leaflets that the IDF had dropped prior to the attack. Therefore, it concluded that Israel was responsible for the death of the three men.
   
   
3. Deaths and injuries occurring at and in the immediate vicinity of, and damage done to, the UNRWA Jabalia Preparatory Boys "C" School on January 6, 2009 – This school is also known as the Al-Fahoura school (after the name of the neighborhood). The IDF knew the location of the school and the fact that is was included in the list of 91 provisional shelters, which had been conveyed to the IDF prior to the beginning of the conflict by the UN.
   
   In the middle of the afternoon of January 6, 2009, a series of mortar shells struck the immediate vicinity of the Al-Fahoura school, injuring seven persons inside the school – six shelter residents and an URWA guard. The Board of Inquiry could not determine how many people were injured or killed in the immediate vicinity of the school. Some human rights organizations estimated that between 30 and 40 individuals had been killed, and that an additional 50 people had been injured.
   
   According to the Board of Inquiry, the injuries of those inside the shelter at the Jabalia School and the damage to the school were the result of the firing of mortar rounds by the IDF, which landed on the road outside the school.
   
   The Board of Inquiry noted that shortly after the incident occurred, Israeli spokespersons claimed that the IDF had responded to mortar fire directed at IDF troops from within the school.[5] These allegations were later proven to be false: no mortars had been fired from within the compound and no explosives were found in the school. The Board of Inquiry could not, however, reach any conclusion regarding whether or not mortars had been fired against the IDF from the vicinity of the school.
   
   The Board of Inquiry also noted that it was not in a position to assess whether or not the means of attack employed by the IDF, which caused the injury of seven people inside the school and allegedly killed and injured dozens more in the immediate vicinity of the school, posed the least danger possible to civilians and property.
   
   This section of the report also concluded that the IDF had breached the inviolability of the UN premises, and had failed to respect the immunity of the organization's property and assets.
   
   
4. Injuries occurring at and damage done to the UNRWA Bureij Health Centre on January 6, 2009 – While the health center does not have resident patients, it does treat outpatients. The existence and location of this health facility was known to the IDF. On January 6, 2009, at the time of the incident, there were approximately 600 patients and 40 employees at the center.
   
   At around 10:40 a.m., a small warning missile hit an apartment building adjacent to the health center. The UNRWA head doctor at the health center asked the patients to remain inside the building. Ten minutes later, a powerful aerial bomb struck the same building. Although the building did not collapse, debris and shrapnel caused damage to the building and to the vehicles parked in the compound. The explosion also resulted in the injury of 12 people – nine employees and three patients, one of whom later died from his injuries.
   
   The Board of Inquiry noted that it had received some information on the affiliation to the Hamas of some of the targeted building's occupants. However, such information could not be fully verified, and the Board of Inquiry could not reach a definitive conclusion regarding the use of the building for operational purposes by the Hamas.
   
   With regard to the "warning missile," the Board of Inquiry concluded that the warning did not serve to sufficiently protect the occupants of the health center from injury or to protect the building and vehicles at the center. No specific warning was issued to UNRWA, despite the IDF's knowledge of the proximity of the health center to the targeted building.
   
   The Board of Inquiry concluded that the IDF had failed to take sufficient precautionary measures in relation to the Health Center, and had breached the inviolability of UN premises. Therefore, the Government of Israel is responsible for the death and injuries of the patients at the Health Center and of its employees.
   
   
5. Small arms fire affecting an UNRWA convoy in the Ezbet Abed Rabou area on January 8, 2009 and related damage to a UN vehicle – During an attempt to move the body of an UNRWA staff member through Ezbet Abed Rabou area (an area that was occupied by the IDF at the time), shots were fired at the UN convoy despite the fact that the operation was coordinated with the IDF.
   
   The convoy consisted of three vehicles – a leading car that was carrying UN personnel and flying a UN flag, an ambulance and another car that was also transporting UN staff. The Board of Inquiry found that eight rounds of small arms fire were directed at the lead car. The car was hit three time and no injuries were sustained. The firing ceased as soon as the convoy stopped.
   
   The Board of Inquiry concluded that the shots came from the IDF and was intended as a warning. Furthermore, since the operation was coordinated with the IDF in accordance with the coordination procedures, the firing was a result of a communication failure.
   
   
6. Injuries occurring at and damage done to UNRWA's Field Office compound in Gaza City on January 15, 2009 – The UNRWA Field Office Compound houses UNRWA headquarters in Gaza. It contains fuel storage facilities (approximately 170,000 liters of diesel in underground storage tanks) and a warehouse for food and other types of humanitarian assistance. It is located in a residential area and is known to the IDF.
   
   Since the initiation of the ground phase by the IDF on January 3, 2009, troop incursions had penetrated deeper into the Gaza Strip and by January 14, 2009, they had reached the area of the UNWRA Field Office Compound. On January 15, 2009, shells were reported to be landing nearby, covering the compound with dust and concrete. Three full fuel tankers were parked in the compound, which was cause for great concern among the UNRWA management. As artillery fire on the area around the compound increased, UNRWA allowed about 600-700 civilians seeking shelter to enter the compound. Each and every one of them was searched. At the same day, around 7:45 a.m., the compound took the first direct hit, which set off fires and filled the warehouse and parking lot with smoke.
   
   At 9:45, two UNRWA employees became aware of burning, white phosphorous impregnated, felt wedges under a fuel tank. Despite the artillery barrage, they attempted to put out the fire under the fuel tank. They managed to move the burning fragment from under the tank to a safer place. There was no water available to put out the fire since the attacks had destroyed UNRWA's roof-top water tanks and, therefore, it was impossible to prevent the fire from spreading to the warehouse area (which contained medicine, food, general supplies and blankets).
   
   In response to UNWRA's requests, the IDF affirmed that there would be no attacks over the UN compound. However, it took over two hours for the fire to extinguish.
   
   The Board of Inquiry noted that despite Israeli claims that Palestinian elements had fired from the compound, UNRWA staff stated that they had not heard any gunfire from within the compound, or from the immediate area on the morning of January 15, 2009. There was also no evidence that any military activity against the IDF had originated from within the compound.
   The Board of Inquiry found that the IDF attacks had injured one UNRWA employee and two unidentified persons, who had taken shelter in the compound. There was also substantial damage caused to buildings, vehicles and supplies, as well as to the goods inside the warehouse.
   
   The Board of Inquiry concluded that in this incident too, there had been a breach of the inviolability of UN premises, and a failure to respect the immunity of the organization's property and assets. Moreover, it emphasized that such inviolability cannot be overridden by the demands of military necessity.
   
   
7. Deaths and injuries occurring at and damage done to the UNRWA Beit Lahia Elementary School on January 17, 2009 – The Beit Lahia Elementary school is a three story building with a central courtyard. It is situated within a compound enclosed by a three meter high wall and an equally high metal gate. The location of the school and the fact that it serves as one of the 91 provisional shelters was known to the IDF prior to the onset of the conflict. Moreover, the IDF had been informed that UNRWA had opened the school as a shelter on January 5, 2009. According to URWA records, by January 16, 2009, 1891 people were harbored in the school, including 265 children under the age of three.
   
   On January 17, 2009 at 6:40 a.m., two days before "Operation Cast Lead" was halted, two ordnance rounds exploded over the school, dispersing dozens of burning, white phosphorous impregnated, felt wedges into the air over the compound and on the school itself.
   
   A few minutes later, an ordnance shell casing crashed through the roof of the school, and another hit the outer edge of the open air corridor on the top floor. The shreds from one of these shell casings, as well as building debris, entered a classroom, where many people had taken shelter. Two young children, aged 5 and 7, were killed and their mother and cousin were seriously injured. More rounds of ordnance followed minutes later, dispersing dozens of burning fragments on the school and igniting a fire in one classroom.
   
   The white phosphorus released white smoke that was later determined to be the cause of some of the injuries of the victims.
   The Board of Inquiry determined that two children had been killed and a total of 13 persons had been injured. The Board of Inquiry also found that firing by the IDF was the undisputed cause of the deaths, injuries and damage. The Board of Inquiry could not, however, definitively determine whether Hamas units were present in the Beit Lahia neighborhood on the morning of January 17, 2009.
   
   The Board of Inquiry concluded that this incident also resulted in a breach of the inviolability of UN premises, and a failure to respect the immunity of the organization's property and assets.
   
   
8. Damage done to UNSCO Gaza compound on December 29, 2008 – The compound is located in the center of Gaza City. At the time of the incident, the offices of OCHA[6] and FAO[7] in Gaza were also co-located within the compound, which also houses a bomb shelter. The rooftops of the buildings in the compound have UN written on them. The IDF had the coordinates prior to the onset of the operation.
   
   On December 29, 2009, between 1:35 a.m. and 1:45 a.m., there were several bombing operations near the area of the compound, hurling rubble on the roofs of the buildings and on the vehicles.
   
   The Board of Inquiry found that the undisputed cause of the incident was the aerial bombing by the IDF of the adjacent Presidential Guest House building. There were no direct hits on the UNSCO Compound, however, substantial physical damage was inflicted on the premises and on UN vehicles in the compound.
   
   The Board of Inquiry was unable to confirm or deny the possibility that the Hamas used the Presidential Guest House as a command and control center.
   
   The Board of Inquiry also noted that the general warning issued by the IDF to civilians to keep away from facilities used by the Hamas, did not serve to warn the UN that the Presidential Guest House might be targeted. The IDF could have issued a specific warning of the impending attack to UNSCO and, thus, could have decreased the risk of death or injury to UN personnel, and especially of damage to the vehicles.
   
   The Board of Inquiry concluded that there was a breach of the inviolability of UN premises, and failure to respect the immunity of the organization's property and assets.
   
   
9. Damage done to the WFP[8] Karni warehouse between December 27, 2008 and January 19, 2009 – From the beginning of "Operation Cast Lead" on December 27, 2008, it was impossible for WFP personnel to reach the warehouse, which is situated on the Israeli side of the Israel-Gaza border. Therefore, there were no UN personnel in the warehouse from that date onwards until February 5, 2009.
   
   In the absence of any employees at the warehouse during the conflict, or any other witness in that area, the Board of Inquiry was unable to determine the precise date of the strike on the warehouse.
   
   However, after inspecting the site, the Board of Inquiry concluded that the holes in the warehouse could have been caused by small firearms, but it could not determine the source or the date. The Board of Inquiry did conclude that most of the damage to the warehouse was caused by a Kassam-type rocket, which was most likely fired from inside Gaza by the Hamas or by another Palestinian faction during "Operation Cast Lead."
   
   The Board of Inquiry also concluded that in this incident, there was a breach of the inviolability of UN premises, and failure to respect the immunity of the organization's property and assets.

The section concerning recommendations in the report addresses four different sets of recommendations regarding: compensation and reparation to the UN, future coordination between Israel and the UN, commendations and future investigations.

Compensation and Reparation – The Board of Inquiry recommended that the UN seek the formal acknowledgement of the Government of Israel that it had made false allegations against Palestinians, claiming that they had fired from within the UNWRA Jabalia School on January 6, 2009, and from within the UNWRA Field Office Compound on January 15, 2009. Moreover, it recommended that the UN should take appropriate actions to seek accountability and secure reparation or reimbursement for all UN expenses incurred during "Operation Cast Lead" as a result of the conclusions of this report.

Future Coordination – The Board of Inquiry recommended that the UN request that the Government of Israel improve its internal mechanisms, especially those within the IDF, and designate a high-level coordination focal point to whom the UN may report any relevant problems. Furthermore, the Government of Israel should make a commitment to provide sufficient advance warning to enable the UN to ensure the security and safety of its personnel or other civilian on its premises should Israel plan any military operations in proximity to UN facilities in the future.

Moreover, the UN should request that the Government of Israel make a commitment to promptly convey, in confidence, any information that it may acquire concerning the misuse of UN premises for military purposes to the senior management of the designated UN office so that it may fulfill its responsibility to investigate and take any appropriate action.

Commendations –  The Board of Inquiry also recommended that commendations be presented to the two UNRWA staff members who prevented the combustion of the fuel stored in the UNRWA Gaza Field Office Compound on January 15, 2009.

Future investigations – The Board of Inquiry recommended that the UN request Israel's internal report of the inquiry into incidents involving UN facilities, as was promised by Prime Minister Ehud Olmert. Moreover, it was recommended that a commitment should be obtained from Israel to deliver appropriate reports in the case of any future incidents of a similar nature.

The Board of Inquiry also recommended that the UN consider establishing stand-by arrangements to deploy trained investigators in the future prior to the visit of the Board of Inquiry to the locations in question.

The last two recommendations referred to incidents and events that were not encompassed by the Board of Inquiry Terms of Reference. The first of these recommendations was that the Secretary General should ensure the timely investigation of the incidents, which involved the death or injury to UNRWA personnel or damage to UNWRA facilities that were not included in the Board of Inquiry Terms of Reference. The second recommendation called for the investigation of other incidents in which third parties were killed, injured or had suffered damage, and of allegations of violations of international humanitarian law in Gaza and in southern Israel by the IDF, the Hamas or other Palestinian militants.

According to its mandate, the Board of Inquiry is not a judicial body and it is not authorized to make any legal findings  or to consider questions of legal liability. Moreover, it lacks the power to order further investigation. Indeed, in a letter appended to the report that the Secretary General submitted to the Security Council, he emphasized that the last two recommendations (i.e. recommendations 10 and 11) do not fall within the Board of Inquiry Terms of Reference and that he does not plan to initiate any further investigation to follow-up these recommendations. (However, the Secretary General noted that these incidents, which resulted in death or injury, but are not encompassed by the Board of Inquiry Terms of Reference, will be addressed on a case by case basis).

Israel has already informed the Secretary General that it has significant reservations and objections to the report and the summary.[9] Nevertheless, Israel has agreed to address the recommendations of the Board of Inquiry as far as they relate to Israel. For example (with regard to recommendation number 4), Israel has already agreed to improve coordination mechanisms with the UN in order to ensure the safety and security of UN personnel and premises.

At a more general level, the report raises some legal and policy questions, which require further consideration. First, the report assumes that the inviolability of UN personnel and facilities is absolute and not subject to conditions of military necessity (and therefore, cannot suffer collateral damage). This is a bold proposition, which appears to have little support, in practice, of any state. Second, the report notes that in five out of the seven incidents in which it was found that the IDF had breached the inviolability of UN personnel and facilities, the involvement of the Hamas could not be negated.[10] Nevertheless, the UN chose to impose responsibility on Israel notwithstanding the fact that the Hamas may have provoked the attacks and bears at least some of the responsibility as well. This approach may prove to be counterproductive as it may encourage – and not discourage – militants to engage in military activities near UN facilities, which would serve as shields. The UN Secretary General's summary of the Board of Inquiry Report does not address this concern in a satisfactory manner.

[1] www.innercitypress.com/banrep1gaza.pdf

[2] United Nations Relief and Works Agency for Palestine Refugees in the Near East

[3] Office of the United Nations Special Coordinator for the Middle East Peace Process

[4] World Food Program

[5] www.mfa.gov.il/MFA/Government/Communiques/2009/Initial_inquiry_school_incident_6-Jan-2009.htm

[6] The Office for the Coordination of Humanitarian Affairs

[7] The Food and Agriculture Organization

[8] World Food Program

[9] Note that the IDF spokesperson recently released a summary of six internal investigations regarding several incidents which occurred during "Operation Cast Lead" (such as firing in the direction of the Al-Fahoura school on January 6, 2009 [incident "c"], and the use of white phosphorus), which reached different conclusions than the Board of Inquiry. See "IDF Publishes the Conclusions of Five Internal Investigations of Incidents that Occurred During "Operation Cast Lead" in this issue.

[10] Incidents (a), (b), (d), (f) and (h)