Amnesty Report on Operation Cast Lead

On July 2, 2009, Amnesty International (hereinafter: "AI") published a report dealing with Operation Cast Lead – the armed conflict between the Israeli Defense Forces and Hamas, which took place between December 27, 2008 and January 17, 2009. In the report, AI raises several questions and allegations concerning the conduct of the IDF, Hamas, and other Palestinian armed groups during the conflict.

The report suggests that Hamas and Palestinian armed groups are responsible for war crimes for their rocket attacks in southern Israel, and that Israel should be held responsible for incidents and methods that resulted in the wanton killing of Palestinian civilians.

In this article, we summarize the report and briefly discuss its implications as part of the IDI's ongoing coverage of the issues raised by Operation Cast Lead in the Terrorism and Democracy Newsletter..

The armed conflict between Israel and Hamas, also known as Operation Cast Lead, took place between December 27, 2008 and January 17, 2009. Amnesty International, an international human rights organization, sent a group of investigators to interview witnesses and victims on both the Palestinian and the Israeli sides of the conflict. Information was gathered from official and unofficial publications made available by Israeli officials and the media, and from the internet.

In keeping with the line it took regarding other investigative missions (e.g., the independent fact-finding mission established by the UN Human Rights Council, the Independent Fact-Finding Committee to the League of Arab States,[1] the Human Rights Watch investigative mission[2]), the Israeli government did not cooperate fully with AI investigators.

The report, which was published on July 2, 2009, addresses the international law perspective of the conduct of hostilities, Israel's responsibility for the massive destruction and large number of casualties, and the responsibility of Hamas and other Palestinian armed groups for violations of international humanitarian law. The report also offers a few recommendations to the international community, the Israeli government and the Hamas administration in the Gaza Strip.

According to AI, there are three legal frameworks that are relevant to the armed conflict, Operation Cast Lead – International Humanitarian Law (IHL), International Human Rights Law (IHRL) and International Criminal Law (ICL).

The relevant IHL legal framework can be divided into two related fields within IHL – the laws of occupation and the rules governing the conduct of hostilities. According to AI, since Israel maintains effective control over the Gaza Strip, the redeployment of its armed forces as part of the disengagement plan did not terminate the situation of occupation in that area. The result is that Israeli forces are now subject to the higher standard of legal obligations, which applies to their counter-terrorism activities in the occupied territories, especially with regard to avoiding destruction of civilian property, ensuring free access to food, medical supplies and relief, and preventing collective punishment.

The rules governing the conduct of hostilities are applicable to all parties to armed conflicts: Israeli is bound by the treaties it has signed, and the customary rules of IHL bind Hamas as well. The principle of distinction and the prohibitions against indiscriminate or disproportionate attacks, against reprisals, and against attacking medical personnel are all binding principles of customary international law.

The second legal framework, according to AI, includes relevant rules of IHRL which mainly oblige the Israeli side. Israel's actions in the occupied Palestinian territories are bound by its obligations under the IHRL treaties to which it is a party,[3] including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR`), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Rights of the Child (CRC). The obligations that were applicable during Operation Cast Lead include obligations to respect, protect and promote the right to life,[4] the right to adequate food and housing,[5] the right to enjoy the highest attainable standard of physical and mental health[6] (which also includes the right to water), and the right to education.[7]

The third legal framework that AI considers relevant to the conflict is ICL. According to AI, any individual (including civilian) may be held criminally responsible for violations of IHL or IHRL. All states have an obligation to investigate and, when enough admissible evidence has been gathered, to prosecute alleged perpetrators of genocide, crimes against humanity and war crimes, as well as other crimes under international law such as torture, extrajudicial executions and enforced disappearances.

According to AI estimations, 1,400 Palestinians were killed during Operation Cast Lead as a result of attacks by Israeli forces;[8] 5000 more were injured. Many of those killed were unarmed civilians, including 300 children, 115 women and 85 men over the age of 50. In addition, 240 police officers were killed in the bombardment of police stations across the Gaza Strip during the first hours of Operation Cast Lead (on the morning of December 27, 2008), including scores who were killed when the first Israeli air strikes targeted the graduation parade of police cadets in the central police compound in Gaza City.

AI accepts Israel’s claim that many of the attacks launched by Israeli forces during Operation Cast Lead targeted military objectives and did not cause disproportionate harm to innocent bystanders, and that as such, were in keeping with the requirements of international law. Moreover, AI agrees that in some cases, the civilian casualties could be considered collateral damage, but it cannot accept the fact that such a large number of civilian deaths, including 300 children, will be dismissed as collateral damage or attributed to human or technical mistakes, especially because the attacks that caused the greatest number of fatalities and injuries were carried out with long-range, high-precision weapons. Such attacks normally require approval from high levels in the chain of command.

AI expressed its belief that many Palestinian unarmed civilians were killed in Israeli attacks as a result of practices which violated IHL. Furthermore, AI also suggested that the Israeli forces failed to take all feasible precautions in order to minimize incidental loss of civilian life, injury to civilians and damage to civilian property; and that they carried out disproportionate and indiscriminate attacks, executed direct attacks on civilians and civilian property, including medical personnel and vehicles, and failed to allow timely access to and passage of medical and relief personnel and vehicles.

While acknowledging the challenges of fighting guerilla groups that do not distinguish themselves from the civilian population, AI stressed that the current rules of IHL take these challenges into consideration and, therefore, they cannot be used to justify indiscriminate or disproportionate attacks.

Within this context, AI referred to precision strikes against property and persons, mainly F-16 or drone airstrikes, (but also tank shelling), which caused the deaths of many civilians. In several cases, the lethal strikes were preceded by the dropping of a smaller missile on the roof of the building, which served as a warning to the building's residents. In other cases, warnings were conveyed by direct phone calls, ordering residents to leave their houses or neighborhoods. According to AI, in many cases, none of the houses or the persons attacked could be considered military targets.

In the report, AI described numerous instances of close range shootings in which IDF soldiers killed innocent civilians, including women and children. Moreover, there is considerable evidence that some of the injured were unable to get medical assistance since the IDF did not allow the movement of ambulances and medical personnel in the fighting zones. AI even describes several attacks against medical installations and UN facilities, which involved the use of white phosphorous and tank shells. According to AI, there is no evidence that explains why the IDF considered these locations military targets in any of these attacks.

All of these incidents must be considered against the factual background of the operation. During Operation Cast Lead, the population of Gaza (1.5 million people), could neither leave Gaza as a result of the Israeli and Egyptian lockdown of the border crossings, nor find safe shelter within Gaza. Thousands of people had no place to go when they fled their homes as a result of the IDF warnings.

The feeling of insecurity could only increase after the IDF made use, according to AI and witnesses, of civilians as human shields on various occasions. One instance of this method was the placement of a sniper in the residence of a Palestinian family that served as a protective shield. Another practice was the employment of civilians to inspect houses and property in their neighborhoods.

AI also inspected the massive destruction of property belonging to, or used by Hamas, including police stations and private houses, which the IDF targeted on the basis of military and security necessity. The Israeli government insisted that only Hamas command facilities, weapons caches, combat positions, and houses with tunnels or that had been booby trapped were targeted, and that damage to civilian infrastructure was incidental or resulted from Hamas’ use of the civilian population as “human shields.”
However, AI took the position that the targeting of military objectives and the incidental damage resulting from such attacks or from armed confrontations accounted for only some of the overall devastation, and that much of the destruction was wanton and the result of deliberate and unnecessary demolition of property, direct attacks on civilian property, and indiscriminate attacks that did not distinguish between legitimate military targets and civilian objects. Moreover, the extensive devastation of civilian homes and property cannot be justified as “collateral damage.”

According to the report, the Israeli rationale for the destruction it inflicted was based on the notion that all attacks fell within the category of military necessity, including the targeting of any sites from which, or from the proximity of which, attacks were allegedly launched or could be launched, as well as those locations that were used for cover during attacks. It also included the destruction of property designed to clear the army’s line of vision in sensitive areas and to create buffer zones near potential targets.

AI did not agree with Israel's analysis of the situation, and claimed that its definitions of legitimate target and proportionality were not consistent with the requirements of IHL. Hence, the destruction of a house used as a base for the launching of rockets without the knowledge of its owners and residents amounts, according to AI, to collective punishment since the owners and the residents of the house were not involved in the launching and had no power to prevent it from occurring. Moreover, the Israeli army did not provide any evidence that the destroyed properties had been used for such attacks, nor specifically accuse those whose houses or properties it had destroyed of having taken part in the attacks.

According to the report, it is most likely that the large-scale destruction of property in these circumstances was carried out as a form of unlawful collective punishment in retaliation for Palestinian attacks on Israel, or to deter future attacks. The broad definition of military necessity is not consistent with IHL and, actually, undermines the core principle of distinction.

The AI report on Palestinian conduct during Operation Cast Lead begins with the rockets launched against southern Israel since June 2004, which caused the death of 18 Israeli civilians (3 of them were killed during Operation Cast Lead). These rockets and mortar shells (over 770 during Operation Cast Lead alone) terrorized and disrupted the lives of all Israelis living within the range of these attacks, which steadily increased prior to the operation, affecting almost one million people.

According to the report, during Operation Cast Lead, the Kassam Brigades claimed responsibility for most of the rockets launched into Israel: 345 Kassam rockets, 213 Grad rockets and 402 mortars.[9]

The Palestinians justify the rocket launchings as a response to the killings of Palestinians and to other attacks carried out by Israeli forces in Gaza and in the West Bank, as well as to the Israeli blockade of Gaza. They also maintain that they have no other weapons or methods that obtain better targeting precision. AI has repeatedly condemned the launching of rockets by the Palestinians against Israeli civilian population centers.

In its report, AI emphasized that the Palestinian justification for the rocket attacks is inadmissible under IHL: they are in violation of international law, which also prohibits attacks aimed at spreading terror among the civilian population, whether or not the attacks actually result in civilian casualties. The patterns of attacks and statements by members and leaders of Palestinian groups also indicate that they have no qualms about launching attacks against civilians and that they, in fact, execute such attacks with the aim of killing and injuring Israeli civilians. Such attacks constitute war crimes.

Furthermore, by operating within residential areas, Palestinian armed groups are endangering the civilian population. Such armed groups also camouflage themselves among the civilian population. However, according to AI, there is no evidence that the armed groups are doing so with the intent to use innocent civilians as human shields.[10]

Nevertheless, AI mentioned that Hamas and the other Palestinian armed groups have an obligation to distinguish themselves from the civilian population and to refrain from exposing the civilian population, either intentionally or recklessly, to danger. Moreover, AI stressed that the intentional use of civilians to shield a military objective is a war crime.

To the International Community - AI recommends that the international community fully support the international independent fact-finding mission, which was established by the UN Human Rights Council.[11] AI also recommends that the UN Security Council impose an arms embargo against Israel, Hamas and other Palestinian armed groups until the establishment of effective mechanisms to ensure that no serious violations of IHL will occur. Moreover, all states should individually suspend all transfers of military equipment, assistance and munitions to Israel, Hamas and any other Palestinian armed group until there is no risk that this equipment will be used to violate IHL.
AI's last recommendation to the international community calls for individual states to begin criminal investigations of the events that took place in Gaza in their own national courts, exercising universal jurisdiction where applicable.

To the Israeli Authorities - AI urges Israel to initiate a public, national, impartial and thorough examination of the evidence that indicates violations of IHL during Operation Cast Lead in accordance with international standards.
AI also calls upon the IDF to revise its interpretation of the rules and principles related to the concepts of military objective, military advantage and proportionality in order to ensure that these concepts are fully consistent with IHL.
Moreover, AI asks the Government of Israel to immediately end the blockade of the Gaza Strip, which it considers collective punishment of the entire civilian population in that area. AI also calls for the complete cooperation of Israel and the international independent fact-finding mission established by the UN Human Rights Council.

To the Hamas de facto Administration – AI demands that Hamas publicly renounce its policy of unlawful rocket attacks against civilian population centers in Israel and ensure that no other armed groups carry out rocket attacks against Israeli civilians.
AI also calls on Hamas to ensure that its fighters distinguish themselves from non-combatants to the maximum extent feasible, and to hold accountable those responsible for rocket attacks.

AI requests that Hamas also cooperate with the international independent fact-finding mission established by the UN Human Rights Council.

This is one report in a series of NGO and other reports published after Operation Cast Lead. Much like the other reports (i.e. the Independent Fact-Finding Committee to the League of Arab States, the Human Rights Watch investigative mission, UN Board of Inquiry, and the IDF's investigations), the AI report is not based on complete information. This is mainly due to the lack of cooperation of the Israeli government with the AI investigation, and the lack of complete factual records of many of the incidents described in the report.

The claim that the amount of damage inflicted by Israel is per se indicative of the fact that Israel's understanding of the principles of military necessity and legitimate targets is not consistent with IHL appears to be too sweeping in nature. According to established IHL principles, the existence of military necessity, and the identification of legitimate targets cannot be observed on an ex post basis. Moreover, one has to ascertain the role of each target in the overall picture of the military campaign. Since Israel did not cooperate with AI, it is impossible to determine with authority the details of the information that the IDF's commanders had on the targets that were approved for attack, and the contribution of these attacks to the overall military advantage within the armed conflict.

Still, AI's comprehensive report raises many questions about Israeli conduct during the conflict, and its call on Israel for further inquiry, including an investigation of the possible responsibility of individual Israeli officials, appears fully justified.

[1] For more information about the report of the Independent Fact-Finding Committee to the League of Arab States, see issue number six of the Terrorism and Democracy Newsletter.

[2] More information about the Human Rights Watch report in this issue of the Terrorism and Democracy Newsletter.

[3] ICJ – Legal consequences of the construction of a wall in the occupied Palestinian territory, 9.7.2004, www.icj-cij.org/docket/files/131/1671.pdf

[4] ICCPR, Article 6

[5] ICESCR, Article 11

[6] ICESCR, Article 12

[7] ICESCR, Article 13

[8] The IDF estimated the overall death toll less than 1200 and maintained that most of those killed were not civilians.

[9] It should be mentioned that according to the Palestinian sources, a total of 1063 rockets were launched during the 22 days of the operation. This number is significantly higher than the Israeli publications of 776 rockets. One explanation for the difference could be that 287 rockets did not reach Israeli territory and therefore were not counted by the Israeli authorities.

[10] Although there was no evidence of the deliberate use of civilians as human shields by the Palestinian armed groups, the modus operandi described in the report results in the de facto transformation of civilians into human shields. The emphasis put in the report on the element of intent may thus be excessive.

[11] It should be mentioned that Israel has declared that it will not cooperate with UN Human right Council's fact finding mission. www.reuters.com/article/homepageCrisis/idUSLF401659._CH_.2400