This section of the report provides a comprehensive description of legal frameworks related to the conduct of hostilities--namely, the principles of distinction and proportionality--in order to clarify the definition of “legitimate actions” and “collateral damage” during warfare. It attempts to outline the conditions under which acts should be considered “war crimes.”
The report then provides a detailed description of breaches of IHL by Hamas, on one hand, and IDF's efforts to comply with IHL provisions and principles, on the other hand.
With regard to Hamas, the report refers to the deliberate, systematic, and widespread rocket attacks against Israeli population centers, which violated the principle of distinction. The aim of these attacks was clearly to target and terrorize civilians, as the Hamas leadership repeatedly acknowledged and even flaunted. Such intentional direct attacks against civilian population centers constitute war crimes.[6]
Another example in the report of the breaches of IHL by Hamas is the abuse of civilian sites as a cover for military operations. Such conduct is in clear violation of the principle of distinction, which obliges the parties to distinguish, as much as possible, their combatant forces from their civilians, and not to base their operations in or near civilian infrastructures. According to the report, Hamas deliberately launched rocket attacks from areas near schools, used hospitals as bases of operation, stored weapons in mosques, booby-trapped entire neighborhoods, and used the civilian population of Gaza as human shields.
All of these actions were executed in order to achieve two goals. The first goal was to take advantage of the fact that Israel adheres to the rules of IHL and is sensitive to civilian casualties on the Palestinian side, and thereby deter the IDF from attacking legitimate military targets. The second goal was to inflate the number of civilian casualties on the Palestinian side for propaganda purposes. In all events, the aforementioned strategy employed by Hamas constitutes a grave breach of the fundamental principle of distinction and qualifies as a war crime. The report notes that under IHL, the presence of civilians in the vicinity of a legitimate military target does not protect the latter from being targeted, but only affects the proportionality analysis of the situation. Hence, Israel’s actions were legitimate when it attacked Hamas targets while attempting to minimize the civilian loss, and although the harm caused to civilians was regrettable, it was not necessarily unlawful.
The report offers various types of evidence to prove Hamas’ abuse of civilian immunity: photos showing the positioning of rockets within residential areas and on top of houses and buildings (including in proximity to UN facilities); testimonies concerning the use of human shields as the modus operandi of Hamas; the misuse of hospitals and mosques to conceal weapons, and of ambulances to transport fighters in and out of the combat areas.
According to the report, one of the most appalling methods employed by Hamas involves booby-trapping homes, roads, schools, and even entire neighborhoods, in order to transform these areas into death traps for Israeli forces. This practice exposed the local population to considerable danger as the use of booby-traps often created a multiplier effect with respect to collateral damage from IDF strikes and advancing forces. Since the IDF forces could not know in advance which areas were booby-trapped, it was virtually impossible to take these effects into account in the proportionality analyses.
The report also demonstrates how Hamas took advantage of humanitarian relief efforts in order to launch attacks and fire rockets. Moreover, in many cases, Hamas confiscated humanitarian aid and forced the civilian population to pay to receive it. According to the report, such willful and repeated interference in the supplying of essential goods and service qualifies as a grave breach of IHL, and constitutes a war crime.
The report goes on to explain how the IDF took appropriate precautions in order to ensure that its actions were in accordance with international law. The report emphasizes Israel's commitment to IHL, and states that IDF soldiers are taught these rules and trained accordingly to in order to ensure that they are aware of these obligations during combat. This commitment is also manifest in IDF orders and, more specifically, in the IDF rules of engagement for “Operation Cast Lead.” Furthermore, during the conflict, IDF military lawyers were involved in advising commanders on numerous questions concerning international law.
In order to ascertain the fulfillment of these rules and orders, the IDF developed several investigative mechanisms, which are intended to examine every claim, or suspicion, of violation and to hold accountable those responsible when a violation occurs. Nevertheless, Israel acknowledges that despite all the training, supervision, and precautions, some operational errors did occur during “Operation Cast Lead.” However, based on the investigations that have been completed to date, such errors do not amount to violations of IHL. Israel stresses that all instances of alleged misconduct will be investigated, and actions will be taken in order to prevent the reoccurrence of operational errors.
The report goes on to describe the IDF Rules of Engagement (RoE), which were in full compliance with the relevant IHL provisions and , in particular, with its four guiding principles: military necessity, distinction, proportionality, and humanity. The RoE also include a list of absolute prohibitions,[7] and legal principles governing the approach to particular targets.[8]
The report elaborates that as in all armed conflicts, IDF troops faced the difficult task of maintaining equilibrium between the two competing considerations that underline IHL: military necessity and humanitarian considerations. The military necessities of “Operation Cast Lead” included the prevention of rockets attacks against Israel, the dismantling of terrorist infrastructure and, at the same time, the protection of Israeli forces operating in the Gaza Strip. The latter set of considerations played a considerable role during the hostilities in Gaza. Since Hamas conducted its warfare from urban areas and used tactics of booby-trapping and mining neighborhoods, buildings, roads, and tunnels, the danger to the safety and security of the IDF troops operating in the area was extremely high and must be taken into account as part of any IHL proportionality analyses.
In the report, Israel placed considerable emphasis on the application of the principle of distinction by its forces during “Operation Cast Lead.” The IDF attacked military targets directly linked to Hamas and to other terrorist organizations: rocket launchers, weapons stockpiles, command and control facilities, weapons factories, etc. According to IHL, the mere fact that these military targets were hidden and embedded in civilian facilities, such as residential buildings, schools, or mosques, did not render them immune from attack.[9]
Regarding attacks on what was referred to as “civilian Hamas ministries” on several occasions, Israel stressed that Hamas is a terrorist organization and, therefore, many of the civilian elements of its regime in the Gaza Strip are also active components of its terrorist and military efforts. Hamas does not separate its civilian and military activities in the manner in which a legitimate government might.
The same logic was applied to attacks on Hamas forces, which were part of the “internal security” apparatus. These forces, which include the local “Hamas police force,” were, in fact, part of the armed forces of Hamas and, as such, were not afforded immunity from attacks. Moreover, according to the Israeli report, the claim that the casualties among the “Hamas police force” were civilian casualties is false. The report provides several examples and evidence of the military functions assumed by the “Hamas police force” and, therefore, rejects its claim to protection under the civilian immunity principle.
With regard to the precautions that the IDF took during the conflict, the report asserts that Israel conducted itself in a restrained and careful manner. Targeting decisions were planned in advance and reviewed by several IDF authorities, including the Office of the Military Advocate General. Whenever possible, information on targets was cross-checked and verified according to the most updated intelligence sources; and on numerous occasions, the process resulted in the cancellation of military operations (e.g., when the intelligence available was not sufficiently reliable or up-to-date and, especially, when the likelihood of collateral damage to civilians and their property was considered excessive relative to the anticipated military advantage).
The IDF made use of weaponry and methods that are meant to diminish the risk of incidental civilian harm. The use of pinpoint surgical aerial attacks, precision guided missiles (which on several occasions were diverted moments before impact in order to spare civilians), advance notice and warnings, and ground operations (instead of aerial strikes) serve as examples of such tactics. Hamas on the other hand, took advantage of these precautionary measures and placed the civilian population and the facilities used by the UN and by other international organizations and humanitarian agencies in substantial danger.
The modus operandi of Hamas presented Israel with complex operational, moral, and legal challenges, especially regarding the proportionality analyses. In fact, in some cases, the IDF refrained from engaging in certain military activities because of the potentially significant harm to sensitive sites, such as Shifa Hospital (Hamas used the basement floor of the hospital as the main headquarters for its military leadership). However, in other cases, when it was necessary to proceed with military operations despite the risk to sensitive sites, the IDF took the aforementioned precautions in order to minimize harming civilians.
Concerning the controversial use of white phosphorous by the IDF during “Operation Cast Lead,” the report notes that it employed two different types of munitions containing white phosphorous – both of which fully comply with the relevant provisions of international law. The first type involves exploding munitions, which were fired only at open and unpopulated areas. Such munitions were usually used for marking and signaling purposes (and not in any anti-personnel capacity).[10] On 7 January 2009, as a precautionary measure, the IDF decided to desist from using these exploding munitions. The second type of munitions containing white phosphorus was primarily used in smoke projectiles designed to protect ground forces operating in urban areas. The report admits that these smoke projectiles may produce incidental incendiary effects. Nevertheless, international law does not prohibit them because the military benefit associated with their use exceeds the collateral harm they may inflict (in fact, the report alleges that without recourse to smoke projectiles, more massive artillery might have been employed, generating even greater collateral damage).
Throughout “Operation Cast Lead,” Israel exerted considerable effort to ensure that the humanitarian needs of the civilian population in Gaza were met. The IDF worked in cooperation with several UN missions and humanitarian organizations to deliver humanitarian relief, which included food, medical supplies, cooking gas, and diesel. Moreover, during the conflict, the Israeli High Court of Justice reviewed and approved these efforts, and upheld their compliance with both Israeli law and international law.[11] However, as was mentioned above, Hamas, whose fighters repeatedly tried to attack humanitarian convoys, did not respect these humanitarian relief efforts.
This part of the report concludes with an explanation of Israel’s comprehensive system for investigating complaints and allegations of misconduct. This system includes the Military Justice System, which is an independent judicial system headed by the Military Advocate General (MAG). The decisions of the MAG regarding the opening of criminal investigations and the filing of indictments may be subject to further review by the State's Attorney General and the Israeli Supreme Court.[12]
Moreover, the report claims that the IDF is in the process of conducting comprehensive investigations of IDF operations in Gaza during “Operation Cast Lead.” So far, the IDF has been examining about 100 complaints from a variety of sources, including UN inquiries[13] and NGO reports.[14] The report provides lists of investigations that are currently in progress: a partial list of 21 field investigations and a list of 13 criminal investigations, which include allegations regarding pillage, use of civilians as human shields, and mistreatment of Palestinian detainees. The conclusions of five internal investigations that preceded these additional investigations were published last April.[15]