al-Nakba: the Palestinian "Catastrophe"

30. Statistics about Palestinians who lost their life during the military operations vary. Based on extensive field research, non-governmental organizations place the overall number of persons killed between 1,387 and 1,417. The Gaza authorities report 1,444 fatal casualties. The Government of Israel provides a figure of 1,166. The data provided by non-governmental sources with regard to the percentage of civilians among those killed are generally consistent and raise very serious concerns with regard to the way Israel conducted the military operations in Gaza.

31. According to the Government of Israel, during the military operations there were 4 Israeli fatal casualties in southern Israel, of whom 3 were civilians and one soldier, killed by rockets and mortars attacks by Palestinian armed groups. In addition, 9 Israeli soldiers were killed during the fighting inside the Gaza strip, 4 of whom as a result of friendly fire.

34. To examine whether the attacks against the police were compatible with the principle of distinction between civilian and military objects and persons, the Mission analysed the institutional development of the Gaza police since Hamas took complete control of Gaza in July 2007 and merged the Gaza police with the "Executive Force" it had created after its election victory. The Mission finds that, while a great number of the Gaza policemen were recruited among Hamas supporters or members of Palestinian armed groups, the Gaza police were a civilian law-enforcement agency. The Mission also concludes that the policemen killed on 27 December 2008 cannot be said to have been taking a direct part in hostilities and thus did not lose their civilian immunity from direct attack as civilians on this ground. The Mission accepts that there may be individual members of the Gaza police that were at the same time members of Palestinian armed groups and thus combatants. It concludes, however, that the attacks against the police facilities on the first day of the armed operations failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and members of the public who would inevitably have been present or in the vicinity), and therefore violated international humanitarian law. 

35. The Mission examined whether and to what extent the Palestinian armed groups violated their obligation to exercise care and take feasible precautions to protect the civilian population in Gaza from the inherent dangers of the military operations (Chapter VIII). The Mission was faced with a certain reluctance by the persons it interviewed in Gaza to discuss the activities of the armed groups. On the basis of the information gathered, the Mission found that Palestinian armed groups were present in urban areas during the military operations and launched rockets from urban areas. It may be that the Palestinian combatants did not at all times adequately distinguish themselves from the civilian population. The Mission found no evidence, however, to suggest that Palestinian armed groups either directed civilians to areas where attacks were being launched or that they forced civilians to remain within the vicinity of the attacks.

36. Although the situations investigated by the Mission did not establish the use of mosques for military purposes or to shield military activities, it cannot exclude that this might have occurred in other cases. The Mission did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities and that ambulances were used to transport combatants or for other military purposes. On the basis of its own investigations and the statements by UN officials, the Mission excludes that Palestinian armed groups engaged in combat activities from UN facilities that were used as shelters during the military operations. The Mission cannot, however, discount the possibility that Palestinian armed groups were active in the vicinity of such UN facilities and hospitals. While the conduct of hostilities in built-up areas does not, of itself, constitute a violation of international law, Palestinian armed groups, where they launched attacks close to civilian or protected buildings, unnecessarily exposed the civilian population of Gaza to danger.

37. The Mission examined how Israeli forces discharged their obligation to take feasible precautions to protect the civilian population of Gaza, including particularly the obligation to give effective advance warning of attacks (Chapter IX). The Mission acknowledges the significant efforts made by Israel to issue warnings through telephone calls, leaflets and radio broadcasts and accepts that in some cases, particularly when the warnings were sufficiently specific, they encouraged residents to leave an area and get out of harms way. However, the Mission also notes factors that significantly undermined the effectiveness of the warnings issued. These include the lack of specificity and thus credibility of many pre-recorded phone messages and leaflets. The credibility of instructions to move to city centres for safety was also diminished by the fact that the city centres themselves had been the subject of intense attacks during the air phase of the military operations. The Mission also examined the practice of dropping lighter explosives on roofs (so-called "roof knocking"). It concludes that this technique is not effective as a warning and constitutes a form of attack against the civilians inhabiting the building. Finally, the Mission stresses that the fact that a warning was issued does not relieve a commander and his subordinates of taking all other feasible measures to distinguish between civilians and combatants.

38. The Mission also examined the precautions taken by Israeli forces in the context of three specific attacks they launched. On 15 January 2009, the UNRWA field office compound in Gaza City came under shelling with high explosive and white phosphorous munitions. The Mission notes that the attack was extremely dangerous, as the compound offered shelter to between 600 and 700 civilians and contained a huge fuel depot. The Israeli forces continued the attack over several hours in spite of having been fully alerted to the risks they created. The Mission concludes that Israeli armed forces violated the customary international law requirement to take all feasible precautions in the choice of means and method of attack with a view to avoiding and in any event minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects.

39. The Mission also finds that, on the same day, the Israeli forces directly and intentionally attacked the Al Quds Hospital in Gaza City and the adjacent ambulance depot with white phosphorous shells. The attack caused fires which took a whole day to extinguish and caused panic among the sick and wounded who had to be evacuated. The Mission finds that no warning was given at any point of an imminent strike. On the basis of its investigation, the Mission rejects the allegation that fire was directed at Israeli forces from within the hospital.

40. The Mission also examined the intense artillery attacks, again including white phosphorous munitions, on Al Wafa hospital in eastern Gaza City, a facility for patients receiving long-term care and suffering from particularly serious injuries. On the basis of the information gathered, the Mission found a violation of the prohibition of attacks on civilian hospitals in the cases of both hospitals. The Mission also highlights that the warnings given by leaflets and pre-recorded phone messages in the case of Al Wafa hospital demonstrate the complete ineffectiveness of certain kinds of routine and generic warnings.

41. The Mission examined the mortar shelling of al-Fakhura junction in Jabalya next to a UNRWA school which at the time was used as a shelter housing more than 1,300 people (Chapter X). The Israeli forces launched at least four mortar shells. One landed in the courtyard of a family home, killing eleven people assembled there. Three other shells landed on al-Fakhura Street, killing at least a further 24 people and injuring as many as 40. The Mission examines in detail statements by Israeli Government representatives alleging that the attack was launched in response to a mortar attack from an armed Palestinian group. While the Mission does not exclude that this may have been the case, it considers the credibility of Israel’s position damaged by the series of inconsistencies, contradictions and factual inaccuracies in the statements justifying the attack.

42. In drawing its legal conclusions on the attack against al-Fakhura junction, the Mission recognizes that for all armies proportionality decisions, weighing the military advantage to be gained against the risk of killing civilians, will present very genuine dilemmas in certain cases. The Mission does not consider this to be such a case. The firing of at least four mortar shells to attempt to kill a small number of specified individuals in a setting where large numbers of civilians were going about their daily business and 1,368 people were sheltering nearby cannot meet the test of what a reasonable commander would have determined to be an acceptable loss of civilian life for the military advantage sought. The Mission considers thus the attack to have been indiscriminate in violation of international law, and to have violated the right to life of the Palestinian civilians killed in these incidents.

43. The Mission investigated eleven incidents in which Israeli forces launched direct attacks against civilians with lethal outcome (Chapter XI). The cases examined in this part of the report are, with one exception, all cases in which the facts indicate no justifiable military objective pursued by the attack. The first two incidents are attacks against houses in the Samouni neighbourhood south of Gaza City, including the shelling of a house in which Palestinian civilians had been forced to assemble by the Israeli forces. The following group of seven incidents concern the shooting of civilians while they were trying to leave their homes to walk to a safer place, waving white flags and, in some of the cases, following an injunction from the Israeli forces to do so. The facts gathered by the Mission indicate that all the attacks occurred under circumstances in which the Israeli forces were in control of the area and had previously entered into contact with or at least observed the persons they subsequently attacked, so that they must have been aware of their civilian status. In the majority of these incidents,the consequencesof the Israeli attacks against civilians were aggravated by their subsequent refusal to allow the evacuation of the wounded or to permit access to ambulances.

44. These incidents indicate that the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal fire against the civilian population. The Mission found strong corroboration of this trend emerging from its fact-finding in the testimonies of Israeli soldiers collected in two publications it reviewed.

45. The Mission further examined an incident in which a mosque was targeted with a missile during the early evening prayer, resulting in the death of fifteen, and an attack with flechette munitions on a crowd of family and neighbours at a condolence tent, killing five. The Mission finds that both attacks constitute intentional attacks against the civilian population and civilian objects.

46. From the facts ascertained in all the above cases, the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killings and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility. It also finds that the direct targeting and arbitrary killing of Palestinian civilians is a violation of the right to life.

47. The last incident concerns the launch of a bomb on a house resulting in the killing of 22 family members. Israel’s position in this case is that there was an "operational error" and that the intended target was a neighbouring house storing weapons. On the basis of its investigation, the Mission expresses significant doubts about the Israeli authorities’ account of the incident. The Mission concludes that, if indeed a mistake was made, there could not be said to be a case of wilful killing. State responsibility of Israel for an internationally wrongful act, however, would remain.

48. Based on its investigation of incidents involving the use of certain weapons such as white phosphorous and flechette missiles, the Mission, while accepting that white phosphorous is not at this stage proscribed under international law, finds that the Israeli armed forces were systematically reckless in determining its use in built-up areas. Moreover, doctors who treated patients with white phosphorous wounds spoke about the severity and sometimes untreatable nature of the burns caused by the substance. The Mission believes that serious consideration should be given to banning the use of white phosphorous in built-up areas. As to flechettes, the Mission notes that they are an area weapon incapable of discriminating between objectives after detonation. They are, therefore, particularly unsuitable for use in urban settings where there is reason to believe civilians may be present.

49. While the Mission is not in a position to state with certainty that so-called dense inert metal explosive (DIME) munitions were used by the Israeli armed forces, it did receive reports from Palestinian and foreign doctors who operated in Gaza during the military operations of a high percentage of patients with injuries compatible with their impact. DIME weapons and weapons armed with heavy metal are not prohibited under international law as it currently stands, but do raise specific health concerns. Finally, the Mission received allegations that depleted and nondepleted uranium were used by Israeli forces in Gaza. These allegations were not further investigated by the Mission.

50. The Mission investigated several incidents involving the destruction of industrial infrastructure, food production, water installations, sewage treatment and housing (Chapter XIII). Already at the beginning of the military operations, the Al Bader flour mill was the only flour mill in the Gaza Strip still operating. The flour mill was hit by a series of air strikes on 9 January 2009 after several false warnings had been issued on previous days. The Mission finds that its destruction had no military justification. The nature of the strikes, in particular the precise targeting of crucial machinery, suggests that the intention was to disable the factory in terms of its productive capacity. From the facts it ascertained, the Mission finds that there has been a violation of the grave breaches provisions of the Fourth Geneva Convention. Unlawful and wanton destruction which is not justified by military necessity amounts to a war crime. The Mission also finds that the destruction of the mill was carried out for the purposes of denying sustenance to the civilian population, which is a violation of customary international law and may constitute a war crime. The strike on the flour mill further constitutes a violation of human rights provisions regarding the right to adequate food and means of subsistence.

51. The chicken farms of Mr. Sameh Sawafeary in the Zeitoun neighborhood south of Gaza City reportedly supplied over 10 per cent of the Gaza egg market. Armoured bulldozers of the Israeli forces systematically flattened the chicken coops, killing all 31,000 chickens inside, and destroyed the plant and material necessary for the business. The Mission concludes that this was a deliberate act of wanton destruction not justified by any military necessity and draws the same legal conclusions as in the case of the destruction of the flour mill.

52. Israeli forces also carried out a strike against a wall of one of the raw sewage lagoons of the Gaza Waste Water Treatment Plant, which caused the outflow of more than 200,000 cubic metres of raw sewage into neighboring farmland. The circumstances of the strike on the lagoon suggest that it was deliberate and premeditated. The Namar Wells complex in Jabalya consisted of two water wells, pumping machines, a generator, fuel storage, a reservoir chlorination unit, buildings and related equipment. All were destroyed by multiple air strikes on the first day of the Israeli aerial attack. The Mission considers it unlikely that a target the size of the Namar Wells could have been hit by multiple strikes in error. It found no grounds to suggest that there was any military advantage to be had by hitting the wells and noted that there was no suggestion that Palestinian armed groups had used the wells for any purpose. Considering that the right to drinking water is part of the right to adequate food, the Mission makes the same legal findings as in the case of the Al Bader flour mill.

53. During its visits to the Gaza Strip, the Mission witnessed the extent of the destruction of residential housing caused by air strikes, mortar and artillery shelling, missile strikes, the operation of bulldozers and demolition charges. In some cases, residential neighborhoods were subjected to air-launched bombing and to intensive shelling apparently in the context of the advance of Israeli ground forces. In other cases, the facts gathered by the Mission strongly suggest that the destruction of housing was carried out in the absence of any link to combat engagements with Palestinian armed groups or any other effective contribution to military action. Combining the results of its own fact finding on the ground with UNOSAT imagery and the published testimonies of Israeli soldiers, the Mission concludes that, in addition to the extensive destruction of housing for so-called "operational necessity" during their advance, the Israeli forces engaged in another wave of systematic destruction of civilian buildings during the last three days of their presence in Gaza, aware of the imminence of withdrawal. The conduct of the Israeli forces in this respect violated the principle of distinction between civilian and military objects and amounted to the grave breach of "extensive destruction … of property, not justified by military necessity and carried out unlawfully and wantonly". Israeli forces further violated the right to adequate housing of the families concerned.

54. The attacks on industrial facilities, food production and water infrastructure investigated by the Mission are part of a broader pattern of destruction, which includes the destruction of the only cement packaging plant in Gaza (the Atta Abu Jubbah plant), the Abu Eida factories for ready-mix concrete, further chicken farms and the Al Wadia Group’s foods and drinks factories. The facts ascertained by the Mission indicate that there was a deliberate and systematic policy on the part of the Israeli armed forces to target industrial sites and water installations.