No Safe Place - Report of the Arab League's Independent Fact Finding Committee Following "Operation Cast Lead"

On April 30, 2009, the Independent Fact-Finding Committee to the League of Arab States, headed by Professor John Dugard, published its report[1] on the violation of human rights and international humanitarian law during "Operation Cast Lead." The task of this fact-finding mission was to act as an independent body to investigate the violation of human rights and international humanitarian law during the conflict.

The Committee found Israel responsible for war crimes, crimes against humanity and, possibly, genocide in the course of "Operation Cast Lead." Hamas, on the other hand, was found responsible for war crimes as a result of its indiscriminate rocket fire into Israel.

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

The Independent Fact-Finding Committee on Gaza to the League of Arab States (hereinafter: "the Committee") was established in February 2009 in the aftermath of the armed conflict between the State of Israel and Hamas in Gaza. The task of the Committee was to investigate and report violations of human rights and international humanitarian law that took place during "Operation Cast Lead."

The Committee consisted of six members: Professor John Dugard (South Africa: Chairman), Professor Paul de Waart (Netherlands), Judge Finn Lynghjem (Norway), Advocate Gonzalo Boye (Chile/Germany), Professor Francisco Corte-Real (Portugal: forensic body damage evaluator) and Ms. Raelene Sharp (Australia: rapporteur).

The Committee visited Gaza from February 22 to February 27, and met with numerous persons, including some of the victims of "Operation Cast Lead," witnesses, Hamas members, and members of NGOs and United Nations agencies. In addition, the Committee collected a great deal of its information from the websites of the Israeli Foreign Ministry and Israel Defense Forces (hereinafter: IDF), Israeli newspapers and NGO reports, the reports of Palestinian and international NGOs, United Nations publications, Palestinian official documents, and the testimony of witnesses to the conflict. Despite several requests, the Government of Israel did not cooperate with the Committee.

The report, which was submitted on April 20, 2009, is divided into three main parts: the first provides a factual description and analysis, the second part concentrates on the legal assessment, and the last part concludes the report and discusses possible remedies and recommendations.

The report begins with a structural analysis of the beginning of the conflict between Israel and the Hamas, and of the grave condition of the infrastructure due to Israel's policy of closure of Gaza during a period of time prior to "Operation Cast Lead." The Committee noted eight years of rocket fire from Gaza directed against Israeli civilians and civilian property. However, it also suggested that it was Israel's incursion into Gaza on November 4, 2008, which caused the renewal of rocket fire after the expiration of the six-month cease fire agreement between Israel and Hamas.[2]

According to the Committee, during the conflict, over 1400 Palestinians were killed. This number includes at least 850 civilians, 300 children and 110 women. Over 5000 Palestinians were wounded. The Committee said it could not accept the incongruent Israeli statistics (which indicate that only 295 of those killed were civilians) because these numbers include policeman as combatants and not as civilians.[3] On the Israeli side, four civilians were killed and 182 were injured as a result of Palestinian rocket fire during the conflict. Ten Israeli soldiers were killed (three by friendly fire) and 148 were wounded.

The Committee noted the differences between the weaponry used by the Palestinians and by the IDF. In its summary, the Committee mentioned that the Palestinian fighters  used only unsophisticated weapons – Kassam and Grad rockets – whereas Israel employed sophisticated and modern weaponry, including white phosphorus in populated areas. However, the report also contains evidence of the use of RPG-7s and AK-47 by  Palestinian fighters. Moreover, it noted that all the political groups in Gaza have organized militias, which do not wear uniforms during their operations.

With regard to destruction and damage to property and infrastructure, the Committee found that during "Operation Cast Lead", over 3,000 homes were destroyed and over 11,000 were damaged; 15 hospitals, 43 primary health care centers, 28 government buildings, 60 police stations, 58 mosques, 178 schools, 17 universities and colleges, and 53 United Nations facilities were also destroyed or damaged. According to the Committee, these figures suggest that the IDF did not distinguish between civilian and military targets, and that its attacks were disproportionate to the harm suffered by Israel, or to any actual threat it faced. Moreover, according to the Committee, Israel's warnings to the local population were not specific enough and, therefore, were meant to confuse the population and cause panic rather than save the lives of civilians.

The Committee addresses Israel's allegations that civilian buildings in Gaza were used to hide and store munitions and militants, and that the Palestinians used civilians as human shields. According to the Committee, it received information about the use of human shields by both Hamas and Israel, but could not verify and determine the truth of these allegations. The Committee's information regarding Hamas' use of civilians as human shields, both in defensive and offensive strategy, is mainly based on the Israeli Intelligence and Terrorism Information Center reports.[4] On the Palestinian side, there were a few allegations that IDF soldiers used civilians as human shields during the operations, including a ten year old child who was required to open the bags of other Palestinians with whom he was detained.[5] The Committee concluded that the use of innocent civilians was likely to have taken place, directly by the IDF and indirectly by Hamas. However, the Committee did not believe that such large scale killing and wounding could result merely from the use of civilians as human shields.

With regard to the IDF internal investigations,[6] the Committee rejected the conclusions of these investigations for several reasons – inter alia, because the investigations were not conducted by an independent body and were not based on Palestinian sources.

In the second part of the report, the Committee focused on the issue of criminal responsibility for the various violations of human rights and international humanitarian law including war crimes, crimes against humanity and genocide committed during the conflict.
Before offering a legal assessment, the Committee considered it necessary to state the following assumptions: (1) Gaza remains occupied territory and Israel is obliged to comply with the Fourth Geneva Convention in its actions in Gaza. (2) Due to the ambiguous definition of "aggression" under international law, it could not reach any conclusions concerning the question of whether Israel’s offensive constituted an act of aggression, although it concluded that Israel’s actions could not be justified as acts of self-defense. (3) It could not examine the criminal responsibility of either Israel or Hamas for acts of international terrorism because both terms--state terrorism and terrorism by non-state actors--are too unclear; consequently, it determined that criminal responsibility was best measured in accordance with the rules of international humanitarian law. (4) Principles of proportionality should be applied in assessing criminal responsibility.

Violations of Human Rights – Although Israel is a party to a number of human rights conventions that, according to the Committee, may have been violated in the course of its action during "Operation Cast Lead," the Committee considered only three of them – the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child. (According to the Advisory Opinion of the International Court of Justice [hereinafter: "ICJ"], Israel is bound by these three conventions in its administration of the OPT.) Violations of these conventions could entail criminal responsibility.

Violations of Humanitarian Law Conventions – The relevant and applicable conventions are the Geneva Convention relative to the Protection of Civilian Persons in Time of War ("Fourth Geneva Convention”) of 1949,[7] and the Additional Protocol I to the Geneva Conventions, and relating to the Protection of Victims of International Armed Conflicts (1977).[8]

War Crimes – The Committee categorized the conflict as an international conflict.[9] However, since both sides of the conflict (Israel and the Palestine Authority) are not members of the Rome Statute of the International Criminal Court (hereinafter: "ICC"), and because the international nature of the conflict could be challenged, the Committee decided to limit the discussion to the most generally accepted war crimes – (1) Indiscriminate and disproportionate attacks on civilians.[10] (2) Killing, wounding and terrorizing civilians. (3) Wanton destruction of property not justified by military necessity. (4) Attacks on hospitals, ambulances and means of humanitarian assistance.

The Committee concluded that the IDF was responsible for the crimes of indiscriminate and disproportionate attacks on civilians, of killing, wounding and terrorizing civilians, and of wanton destruction of property that could not be justified on grounds of military necessity. The Committee also found that the weapons used by the IDF, particularly white phosphorous, caused superfluous injury and unnecessary suffering.

These conclusions were based on the large number of dead and wounded civilians, the damage caused to civilian property, and the intense bombardment of the Gaza Strip. In particular, the Committee rejected Israel's position that any person affiliated with the Hamas organization constituted a legitimate military target.

With regard to the other side of the conflict, although the Committee determined that the Palestinian attacks were provoked by the siege and occupation of Gaza, it concluded that the Palestinian militants who indiscriminately fired rockets into Israel committed the war crimes of indiscriminate and disproportionate attacks on civilians and of killing, wounding and terrorizing civilians.

Crimes against Humanity - The Committee found that Israel’s offensive met the legal requirements of crimes against humanity and fulfilled the actus reus (murder, extermination, persecution and "other inhumane acts"); thus, the IDF was responsible for committing this crime. Furthermore, these acts of violence were committed with "knowledge of the attack" in the sense that the perpetrators of these acts knew that these acts, which they intended to advance, were part of a widespread or systematic attack against a civilian population.

Genocide – The Committee acknowledged that allegations of genocide must not be brought lightly. Nevertheless, the Committee noted that the harm caused by "Operation Cast Lead" was of such gravity that the question of genocide must be considered and examined.

The Committee found that Israel's actions during the conflict met the requirements of the actus reus of crime of genocide as defined in the Genocide Convention. Regarding the question of intent (mens rea), the Committee could not reach a conclusion. However, the Committee rejected Israel's self-defense justification for the operation, and deemed that the underlying reason for Israel's actions was not to destroy a group, but rather to exercise collective punishment in order to compel the population to reject Hamas' control over the Gaza Strip.

The Committee concluded that both Israel and Hamas committed war crimes, and that while the IDF operations as a whole do not constitute genocide, some individual IDF soldiers may have had the mens rea and actus reus of crimes of genocide. Moreover, the Committee stressed that according to the Genocide Convention, Israel has the responsibility of investigating such alleged wrongdoings.

With regard to the responsibility of Hamas, the Committee concluded that the organization is responsible for war crimes committed by its members who indiscriminately fired rockets into Israel.[11] However, it also stated that in its view, there are a few factors that lessen the moral guilt (but not the criminal responsibility) of Hamas operatives, such as the fact that the Palestinians have been denied their right to self-determination by Israel and have long been subjected to a cruel siege by Israel.

The Committee has also referred to the right of states, NGOs and individuals to seek recourse within the field of criminal law to remedy the alleged crimes that were committed in Gaza. These options include prosecution for violation of the Fourth Geneva Convention in national courts,[12] prosecution in national courts where universal jurisdiction is applied,[13] and referral to the ICC.[14]

According to the Committee,  civil law provides states, NGOs and individuals with several additional remedial options, including legal proceedings in states that are party to the Genocide Convention (in particular under the U.S. Alien Tort Claims Act).

The Committee also suggested exploring the initiation of procedures in the United Nations. Member states of the UN may request that the Security Council refer the situation in Gaza during "Operation Cast Lead" to the ICC.[15] An alternative approach would be to request that the UN General Assembly ask the ICJ for an advisory opinion on the legal consequences of "Operation Cast Lead" for Israel and other states.

In its assessment, the Committee concluded that the extent of the harm caused by the IDF attacks during "Operation Cast Lead" proves that they were indiscriminate and disproportionate. However, the validity of this conclusion is questionable. The extent of harm can only create a rebuttable presumption on the matter; in order to reach conclusive findings on the permissibility of specific attacks, one has to review the ex-ante information and intelligence that the IDF commanders possessed concerning the military threat posed by targeted individuals and objects, and not rely solely on the actual harm done. Moreover, reaching conclusions without hearing the party whose conduct is criticized is necessarily a problematic fact-finding process, and because Israel did not cooperate with the Committee (and was certainly under no obligation to cooperate with it), its conclusions should be accepted with a grain of salt.

A comparison of the the Arab Leauge report with the IDF investigation reports on "Operation Cast Lead" that were recently published reveals that, at least prima facie, none of these reports were based on complete and well-founded information. Parallel to the claims of the Committee that the IDF did not conduct comprehensive interviews with the victims and witnesses, and did not visit the affected areas, the Committee lacked the unpublished information possessed by Israel; that is, information that was not published in public reports or on websites. Therefore, it appears that the same grounds and logic that led the Committee to find the IDF investigations unconvincing also apply to the Committee's report.

Although the Committee concluded that members of Hamas are responsible for war crimes as a result of its indiscriminate firing of rockets into Israel, it did not comment at all on the modus operandi of the these members, who do not wear uniforms and who endangered a large number of innocent civilians during the conflict. Moreover, the Committee appears to have applied a double standard to the two sides of the conflict: the Committee discussed and reached the conclusion that Israel committed crimes against humanity, which was mainly based on the end result and not on the intention. The Committee did not, however, discuss the responsibility for crimes against humanity of Hamas for firing 726 rockets and mortars into Israel, which could be considered systematic attacks directed against a civilian population with the intent to cause great suffering, or serious injury to body or to mental and physical health.[16]

Some of the Committee's basic assumptions in the report cannot be accepted as unchallenged truth. Even if one accepts the controversial proposition that Gaza remains occupied territory, it is questionable whether the Forth Geneva Convention is fully applicable to this situation since Article 6 of the Convention limits its applicability in prolonged occupations with limited exercise of government authority.

The Committee's claim that Israel’s actions could not be justified as self-defense is also questionable. For a detailed discussion of this issue, please refer to the February 2009 issue of the Terrorism and Democracy Newsletter.

[1] http://www.arableagueonline.org/las/picture_gallery/reportfullFINAL.pdf

[2] Pages 103-104 of the report.  See the February 2008 Issue of the Terrorism and Democracy Newsletter for more information about the general Jus ad Bellum framework of the conflict.

[3] The Committee explains the distinction between the wings of the Hamas – according to that analysis, the military wings' combatants are combatants as defined by IHL, and the political and civil activists are civilians who are entitled to protection under IHL (as long as they do not take active part in the hostilities).

[4] Page 39 of the report.

[5] Page 40 of the report.

[6] For more information about these investigations, see the May 2009 Issue of the Terrorism and Democracy Newsletter.

[7] As mentioned earlier, the entire analysis of this part of the report is based on the assumption that the Forth Geneva Convention is applicable since Gaza remained occupied territory.

[8] Since Israel is not a party to the Additional Protocol I, only the provisions which were recognized as customary international humanitarian law are applicable to the conflict. However, the Committee does not relate to this issue at all in its report.

[9] Page 112-113 of the report.

[10] Articles 51(4) and 51(5) of Additional Protocol I.

[11] It mentioned that the Hamas was not the only organization to fire rockets into Israel. However, since the Hamas is the governing de facto authority in Gaza and, thus, had effective control over the actions of these factions, it could be held responsible.

[12] In accordance with  Articles 146 and 147 of the Forth Geneva Convention.

[13] According to the report, the states that recognize some form of universal jurisdiction are Austria, Belgium, Canada, Chile, Denmark, France, Germany, the Netherlands, New Zealand, Norway, Senegal, South Africa, Switzerland and the United Kingdom.

[14] On January 22, 2009, the Palestinian Minister of Justice, Mr. Ali Kashan, lodged a declaration with the Registrar of the International Criminal Court on behalf of the government of the Palestinian Authority recognizing and requesting the jurisdiction of the Court for international crimes committed in Palestine since July 1, 2002 under Article 12(3) of the Rome Statute. At this time, the Registrar is still deliberating this request.

[15] Such a referral was already made in the case of Darfur in Resolution 1593 of March 31, 2005.

[16] During the last years,  many more rockets and mortars have been fired into Israel from Gaza. However, according to the Terms of Reference, the Committee is limited to investigating violations that took place during the conflict.