Goldstone Bericht

Text des “Executive Summary” (Zusammenfassung für Regierungen und Institutionen) des Berichtes des UN-Beauftragten Richard Goldstone zum Krieg in Gaza (Operation “Gegossenes Blei” / “Cast Lead”)

UNITED
NATIONS
A General Assembly Distr.
GENERAL
A/HRC/12/48 (ADVANCE 1)
23 September 2009
Original: ENGLISH
HUMAN RIGHTS COUNCIL
Twelfth session
Agenda item 7
HUMAN RIGHTS IN PALESTINE AND OTHER
OCCUPIED ARAB TERRITORIES

Report of the United Nations Fact Finding Mission on the Gaza Conflict

Executive summary*
* The present document is an advance translation and contains the executive summary only. The
full report will be issued as A/HRC/12/48 in all languages according to translation capacity of
the United Nations translation services.
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A. Introduction
1. On 3 April 2009, the President of the Human Rights Council established the United
Nations Fact Finding Mission on the Gaza Conflict with the mandate “to investigate all
violations of international human rights law and international humanitarian law that might have
been committed at any time in the context of the military operations that were conducted in Gaza
during the period from 27 December 2008 and 18 January 2009, whether before, during or
after.”
2. The President appointed Justice Richard Goldstone, former judge of the Constitutional
Court of South Africa and former Prosecutor of the International Criminal Tribunals for the
former Yugoslavia and Rwanda, to head the Mission. The other three appointed members were:
Professor Christine Chinkin, Professor of International Law at the London School of Economics
and Political Science, who was a member of the high-level fact-finding mission to Beit Hanoun
(2008); Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan and former Special
Representative of the Secretary-General on the situation of human rights defenders, who was a
member of the International Commission of Inquiry on Darfur (2004); and Colonel Desmond
Travers, a former Officer in Ireland’s Defence Forces and member of the Board of Directors of
the Institute for International Criminal Investigations.
3. As is usual practice, the Office of the United Nations High Commissioner for Human
Rights (OHCHR) established a secretariat to support the Mission.
4. The Mission interpreted the mandate as requiring it to place the civilian population of the
region at the centre of its concerns regarding the violations of international law.
5. The Mission convened for the first time in Geneva between 4 and 8 May 2009.
Additionally, the Mission met in Geneva on 20 May, on 4 and 5 July, and between 1 and 4
August 2009. The Mission conducted three field visits: two to the Gaza Strip between 30 May
and 6 June, and between 25 June and 1 July 2009; and one visit to Amman on 2 and 3 July 2009.
Several staff of the Mission’s secretariat were deployed in Gaza from 22 May to 4 July 2009 to
conduct field investigations.
6. Notes verbales were sent to all Member States of the United Nations and United Nations
organs and bodies on 7 May 2009. On 8 June 2009, the Mission issued a call for submissions
inviting all interested persons and organizations to submit relevant information and
documentation to assist in the implementation of its mandate.
7. Public hearings were held in Gaza on 28 and 29 June and in Geneva on 6 and 7 July 2009.
8. The Mission repeatedly sought to obtain the cooperation of the Government of Israel. After
numerous attempts had failed, the Mission sought and obtained the assistance of the Government
of Egypt to enable it to enter the Gaza Strip through the Rafah crossing.
9. The Mission has enjoyed the support and cooperation of the Palestinian Authority and of
the Permanent Observer Mission of Palestine to the United Nations. Due to the lack of
cooperation from the Israeli Government, the Mission was unable to meet members of the
Palestinian Authority in the West Bank. The Mission did, however, meet officials of the

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Palestinian Authority, including a cabinet minister, in Amman. During its visits to the Gaza
Strip, the Mission held meetings with senior members of the Gaza authorities and they extended
their full cooperation and support to the Mission.
10. Subsequent to the public hearings in Geneva, the Mission was informed that a Palestinian
participant, Mr. Muhammad Srour, had been detained by Israeli security forces when returning
to the West Bank and became concerned that his detention may have been a consequence of his
appearance before the Mission. The Mission is in contact with him and continues to monitor
developments.
B. Methodology
11. To implement its mandate, the Mission determined that it was required to consider any
actions by all parties that might have constituted violations of international human rights law or
international humanitarian law. The mandate also required it to review related actions in the
entire Occupied Palestinian Territory and Israel.
12. With regard to temporal scope, the Mission decided to focus primarily on events, actions or
circumstances occurring since 19 June 2008, when a ceasefire was agreed between the
Government of Israel and Hamas. The Mission has also taken into consideration matters
occurring after the end of military operations that constitute continuing human rights and
international humanitarian law violations related to or as a consequence of the military
operations, up to 31 July 2009.
13. The Mission also analysed the historical context of the events that led to the military
operations in Gaza between 27 December 2008 and 18 January 2009 and the links between these
operations and overarching Israeli policies vis-à-vis the Occupied Palestinian Territory.
14. The Mission considered that the reference in its mandate to violations committed “in the
context” of the December–January military operations required it to include restrictions on
human rights and fundamental freedoms relating to Israel’s strategies and actions in the context
of its military operations.
15. The normative framework for the Mission has been general international law, the Charter
of the United Nations, international humanitarian law, international human rights law and
international criminal law.
16. This report does not purport to be exhaustive in documenting the very high number of
relevant incidents that occurred in the period covered by the Mission’s mandate. Nevertheless,
the Mission considers that the report is illustrative of the main patterns of violations. In Gaza, the
Mission investigated 36 incidents.
17. The Mission based its work on an independent and impartial analysis of compliance by the
parties with their obligations under international human rights and humanitarian law in the
context of the recent conflict in Gaza, and on international investigative standards developed by
the United Nations.
18. The Mission adopted an inclusive approach to gathering information and seeking views.
Information-gathering methods included: (a) the review of reports from different sources; (b)

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interviews with victims, witnesses and other persons having relevant information; (c) site visits
to specific locations in Gaza where incidents had occurred; (d) the analysis of video and
photographic images, including satellite imagery; (e) the review of medical reports about injuries
to victims; (f) the forensic analysis of weapons and ammunition remnants collected at incident
sites; (g) meetings with a variety of interlocutors; (h) invitations to provide information relating
to the Mission’s investigation requirements; (i) the wide circulation of a public call for written
submissions; (j) public hearings in Gaza and in Geneva.
19. The Mission conducted 188 individual interviews. It reviewed more than 300 reports,
submissions and other documentation either researched of its own motion, received in reply to its
call for submissions and notes verbales or provided during meetings or otherwise, amounting to
more than 10,000 pages, over 30 videos and 1,200 photographs.
20. By refusing to cooperate with the Mission, the Government of Israel prevented it from
meeting Israeli Government officials, but also from travelling to Israel to meet Israeli victims
and to the West Bank to meet Palestinian Authority representatives and Palestinian victims.
21. The Mission conducted field visits, including investigations of incident sites, in the Gaza
Strip. This allowed the Mission to observe first-hand the situation on the ground, and speak to
many witnesses and other relevant persons.
22. The purpose of the public hearings, which were broadcast live, was to enable victims,
witnesses and experts from all sides to the conflict to speak directly to as many people as
possible in the region as well as in the international community. The Mission gave priority to the
participation of victims and people from the affected communities. The 38 public testimonies
covered facts as well as legal and military matters. The Mission had initially intended to hold
hearings in Gaza, Israel and the West Bank. However, denial of access to Israel and the West
Bank resulted in the decision to hold hearings of participants from Israel and the West Bank in
Geneva.
23. In establishing its findings, the Mission sought to rely primarily and whenever possible on
information it gathered first-hand. Information produced by others, including reports, affidavits
and media reports, was used primarily as corroboration.
24. The Mission’s final conclusions on the reliability of the information received were based
on its own assessment of the credibility and reliability of the witnesses it met, verifying the
sources and the methodology used in the reports and documents produced by others, crossreferencing
the relevant material and information, and assessing whether, in all the
circumstances, there was sufficient credible and reliable information for the Mission to make a
finding in fact.
25. On this basis, the Mission has, to the best of its ability, determined what facts have been
established. In many cases it has found that acts entailing individual criminal responsibility have
been committed. In all of these cases the Mission has found that there is sufficient information to
establish the objective elements of the crimes in question. In almost all of the cases the Mission
has also been able to determine whether or not it appears that the acts in question were done
deliberately or recklessly or in the knowledge that the consequence that resulted would result in
the ordinary course of events. The Mission has thus referred in many cases to the relevant fault

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element (mens rea). The Mission fully appreciates the importance of the presumption of
innocence: the findings in the report do not subvert the operation of that principle. The findings
do not attempt to identify the individuals responsible for the commission of offences nor do they
pretend to reach the standard of proof applicable in criminal trials.
26. In order to provide the parties concerned with an opportunity to submit additional relevant
information and express their position and respond to allegations, the Mission also submitted
comprehensive lists of questions to the Government of Israel, the Palestinian Authority and the
Gaza authorities in advance of completing its analysis and findings. The Mission received replies
from the Palestinian Authority and the Gaza authorities but not from Israel.
C. Facts investigated by the Mission, factual and legal findings
The Occupied Palestinian Territory: the Gaza Strip
1. The blockade
27. The Mission focused (chap. V) on the process of economic and political isolation imposed
by Israel on the Gaza Strip, generally referred to as a blockade. The blockade comprises
measures such as restrictions on the goods that can be imported into Gaza and the closure of
border crossings for people, goods and services, sometimes for days, including cuts in the
provision of fuel and electricity. Gaza’s economy is further severely affected by the reduction of
the fishing zone open to Palestinian fishermen and the establishment of a buffer zone along the
border between Gaza and Israel, which reduces the land available for agriculture and industry. In
addition to creating an emergency situation, the blockade has significantly weakened the
capacities of the population and of the health, water and other public sectors to respond to the
emergency created by the military operations.
28. The Mission holds the view that Israel continues to be duty-bound under the Fourth
Geneva Convention and to the full extent of the means available to it to ensure the supply of
foodstuff, medical and hospital items and other goods to meet the humanitarian needs of the
population of the Gaza Strip without qualification.
2. Overview of Israel’s military operations in the Gaza Strip and casualties
29. Israel deployed its navy, air force and army in the operation it codenamed “Operation Cast
Lead”. The military operations in the Gaza Strip included two main phases, the air phase and the
air-land phase, and lasted from 27 December 2008 to 18 January 2009. The Israeli offensive
began with a week-long air attack, from 27 December until 3 January 2009. The air force
continued to play an important role in assisting and covering the ground forces from 3 January to
18 January 2009. The army was responsible for the ground invasion, which began on 3 January
2009, when ground troops entered Gaza from the north and the east. The available information
indicates that the Golani, Givati and Paratrooper Brigades and five Armoured Corps Brigades
were involved. The navy was used in part to shell the Gaza coast during the operations. Chapter
VI also locates the incidents investigated by the Mission, described in chapters VII to XV, in the
context of the military operations.

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30. Statistics about Palestinians who lost their lives 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 fatalities. The Government of
Israel provides a figure of 1,166. The data provided by non-governmental sources on the
percentage of civilians among those killed are generally consistent and raise very serious
concerns about the way Israel conducted the military operations in Gaza.
31. According to the Government of Israel, during the military operations there were four
Israeli fatalities in southern Israel, of whom three were civilians and one a soldier. They were
killed by rocket and mortar attacks by Palestinian armed groups. In addition, nine Israeli soldiers
were killed during the fighting inside the Gaza strip, four of whom as a result of friendly fire.
3. Attacks by Israeli forces on government buildings and persons
of the Gaza authorities, including police
32. The Israeli armed forces launched numerous attacks against buildings and persons of the
Gaza authorities. As far as attacks on buildings are concerned, the Mission examined the Israeli
strikes against the Palestinian Legislative Council building and the Gaza main prison (chap. VII).
Both buildings were destroyed and can no longer be used. Statements by Israeli Government and
armed forces representatives justified the attacks arguing that political and administrative
institutions in Gaza are part of the “Hamas terrorist infrastructure”. The Mission rejects this
position. It finds that there is no evidence that the Legislative Council building and the Gaza
main prison made an effective contribution to military action. On the information available to it,
the Mission finds that the attacks on these buildings constituted deliberate attacks on civilian
objects in violation of the rule of customary international humanitarian law whereby attacks must
be strictly limited to military objectives. These facts further indicate the commission of the grave
breach of extensive destruction of property, not justified by military necessity and carried out
unlawfully and wantonly.
33. The Mission examined the attacks against six police facilities, four of them during the first
minutes of the military operations on 27 December 2008, resulting in the death of 99 policemen
and nine members of the public. Overall, the approximately 240 policemen killed by Israeli
forces constitute more than one sixth of the Palestinian casualties. The circumstances of the
attacks seem to indicate, and the Government of Israel’s July 2009 report on the military
operations confirm, that the policemen were deliberately targeted and killed on the ground that
the police, as an institution or a large part of the policemen individually, are, in the Government
of Israel’s view, part of the Palestinian military forces in Gaza.
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 basis. The Mission accepts that
there may be individual members of the Gaza police that were at the same time members of

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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.
4. Obligation on Palestinian armed groups in Gaza to take feasible precautions to
protect the civilian population and civilian objects
35. The Mission examined whether and to what extent the Palestinian armed groups violated
their obligation to exercise care and take all feasible precautions to protect the civilian
population in Gaza from the inherent dangers of the military operations (chap. 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 incidents 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 or that ambulances were used to transport combatants or for other military purposes.
On the basis of its own investigations and the statements by United Nations officials, the Mission
excludes that Palestinian armed groups engaged in combat activities from United Nations
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 United
Nations 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.
5. Obligation on Israel to take feasible precautions to protect the civilian
population and civilian objects in Gaza
37. The Mission examined how the Israeli armed forces discharged their obligation to take all
feasible precautions to protect the civilian population of Gaza, including particularly the
obligation to give effective advance warning of attacks (chap. 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 harm’s 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

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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 commanders and
their subordinates of taking all other feasible measures to distinguish between civilians and
combatants.
38. The Mission also examined the precautions taken by the Israeli armed forces in the context
of three specific attacks they launched. On 15 January 2009, the field office compound of the
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) 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 armed forces
continued their attack over several hours despite having been fully alerted to the risks they
created. The Mission concludes that the Israeli armed forces violated the requirement under
customary international law 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 armed forces directly and
intentionally attacked 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 the Israeli armed 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 both cases. 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.
6. Indiscriminate attacks by Israeli forces resulting in the loss
of life and injury to civilians
41. The Mission examined the mortar shelling of al-Fakhura junction in Jabaliyah next to a
UNRWA school, which, at the time, was sheltering more than 1,300 people (chap. X). The
Israeli armed forces launched at least four mortar shells. One landed in the courtyard of a family
home, killing 11 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 examined 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.

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42. In drawing its legal conclusions on the attack on al-Fakhura junction, the Mission
recognizes that, for all armies, decisions on proportionality, 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 thus considers 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.
7. Deliberate attacks against the civilian population
43. The Mission investigated 11 incidents in which the Israeli armed forces launched direct
attacks against civilians with lethal outcome (chap. XI). The facts in all bar one of the attacks
indicate no justifiable military objective. The first two are attacks on houses in the al-Samouni
neighbourhood south of Gaza City, including the shelling of a house in which Palestinian
civilians had been forced to assemble by the Israeli armed 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 armed forces were in control of the area and had
previously entered into contact with or had 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 consequences of 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 armed 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 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 early evening prayers, resulting in the death of 15 people, 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 constitutes 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 bombing of 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

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Mission concludes that, if a mistake was indeed made, there could not be said to be a case of
wilful killing. State responsibility of Israel for an internationally wrongful act would, however,
remain.
8. The use of certain weapons
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 had 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 non-depleted uranium were used by the Israeli armed forces in Gaza. These
allegations were not further investigated by the Mission.
9. Attacks on the foundations of civilian life in Gaza: destruction
of industrial infrastructure, food production, water installations,
sewage treatment plants and housing
50. The Mission investigated several incidents involving the destruction of industrial
infrastructure, food production, water installations, sewage treatment plants and housing (chap.
XIII). Already at the beginning of the military operations, el-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’s 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 to deny 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 furthermore constitutes a violation of the right to adequate food and means of subsistence.
51. The chicken farms of Mr. Sameh Sawafeary in the Zeytoun neighbourhood south of Gaza
City reportedly supplied over 10 per cent of the Gaza egg market. Armoured bulldozers of the
Israeli armed 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

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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. The Israeli armed forces also carried out a strike against a wall of one of the raw sewage
lagoons of the Gaza wastewater treatment plant, which caused the outflow of more than 200,000
cubic metres of raw sewage onto neighbouring farmland. The circumstances of the strike suggest
that it was deliberate and premeditated. The Namar wells complex in Jabaliyah 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 el-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 neighbourhoods were
subjected to air-launched bombing and to intensive shelling apparently in the context of the
advance of Israeli ground forces. In others, 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 satellite 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 armed
forces engaged in another wave of systematic destruction of civilian buildings during the last
three days of their presence in Gaza, aware of their imminent withdrawal. The conduct of the
Israeli armed 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”. The Israeli armed
forces furthermore 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-Wadiyah Group’s food 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.
10. The use of Palestinian civilians as human shields
55. The Mission investigated four incidents in which the Israeli armed forces coerced
Palestinian civilian men at gunpoint to take part in house searches during the military operations
(chap. XIV). The men were blindfolded and handcuffed as they were forced to enter houses
ahead of the Israeli soldiers. In one of the incidents, Israeli soldiers repeatedly forced a man to
enter a house in which Palestinian combatants were hiding. Published testimonies of Israeli
soldiers who took part in the military operations confirm the continuation of this practice, despite

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clear orders from Israel’s High Court to the armed forces to put an end to it and repeated public
assurances from the armed forces that the practice had been discontinued. The Mission
concludes that this practice amounts to the use of Palestinian civilians as human shields and is
therefore prohibited by international humanitarian law. It puts the right to life of the civilians at
risk in an arbitrary and unlawful manner and constitutes cruel and inhuman treatment. The use of
human shields also is a war crime. The Palestinian men used as human shields were questioned
under threat of death or injury to extract information about Hamas, Palestinian combatants and
tunnels. This constitutes a further violation of international humanitarian law.
11. Deprivation of liberty: Gazans detained during the Israeli military
operations of 27 December 2008 to 18 January 2009
56. During the military operations, the Israeli armed forces rounded up large numbers of
civilians and detained them in houses and open spaces in Gaza and, in the case of many
Palestinian men, also took them to detention facilities in Israel. In the cases investigated by the
Mission, the facts gathered indicate that none of the civilians was armed or posed any apparent
threat to the Israeli soldiers. Chapter XV of the report is based on the Mission’s interviews with
Palestinian men who were detained, as well as on its review of other relevant material, including
interviews with relatives and statements from other victims submitted to it.
57. From the facts gathered, the Mission finds that numerous violations of international
humanitarian law and human rights law were committed in the context of these detentions.
Civilians, including women and children, were detained in degrading conditions, deprived of
food, water and access to sanitary facilities, and exposed to the elements in January without any
shelter. The men were handcuffed, blindfolded and repeatedly made to strip, sometimes naked, at
different stages of their detention.
58. In the al-Atatra area in north-western Gaza, Israeli troops had dug out sandpits in which
Palestinian men, women and children were detained. Israeli tanks and artillery positions were
located inside the sandpits and around them and fired from next to the detainees.
59. The Palestinian men who were taken to detention facilities in Israel were subjected to
degrading conditions of detention, harsh interrogation, beatings and other physical and mental
abuse. Some of them were charged with being unlawful combatants. Those interviewed by the
Mission were released after the proceedings against them had apparently been discontinued.
60. In addition to arbitrary deprivation of liberty and violation of due process rights, the cases
of the detained Palestinian civilians highlight a common thread of the interaction between Israeli
soldiers and Palestinian civilians which also emerged clearly in many cases discussed elsewhere
in the report: continuous and systematic abuse, outrages on personal dignity, humiliating and
degrading treatment contrary to fundamental principles of international humanitarian law and
human rights law. The Mission concludes that this treatment constitutes the infliction of a
collective penalty on these civilians and amounts to measures of intimidation and terror. Such
acts are grave breaches of the Geneva Conventions and constitute a war crime.

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12. Objectives and strategy of Israel’s military operations in Gaza
61. The Mission reviewed available information on the planning of the Israeli military
operations in Gaza, on the advanced military technology available to the Israeli armed forces and
on their training in international humanitarian law (chap. XVI). According to official
Government information, the Israeli armed forces have an elaborate legal advice and training
system in place, which seeks to ensure knowledge of the relevant legal obligations and support to
commanders for compliance in the field. The Israeli armed forces possess very advanced
hardware and are also a market leader in the production of some of the most advanced pieces of
military technology available, including unmanned aviation vehicles (UAVs). They have a very
significant capacity for precision strikes by a variety of methods, including aerial and ground
launches. Taking into account the ability to plan, the means to execute plans with the most
developed technology available, and statements by the Israeli military that almost no errors
occurred, the Mission finds that the incidents and patterns of events considered in the report are
the result of deliberate planning and policy decisions.
62. The tactics used by the Israeli armed forces in the Gaza offensive are consistent with
previous practices, most recently during the Lebanon war in 2006. A concept known as the
Dahiya doctrine emerged then, involving the application of disproportionate force and the
causing of great damage and destruction to civilian property and infrastructure, and suffering to
civilian populations. The Mission concludes from a review of the facts on the ground that it
witnessed for itself that what was prescribed as the best strategy appears to have been precisely
what was put into practice.
63. In the framing of Israeli military objectives with regard to the Gaza operations, the
concept of Hamas’ “supporting infrastructure” is particularly worrying as it appears to transform
civilians and civilian objects into legitimate targets. Statements by Israeli political and military
leaders prior to and during the military operations in Gaza indicate that the Israeli military
conception of what was necessary in a war with Hamas viewed disproportionate destruction and
creating maximum disruption in the lives of many people as a legitimate means to achieve not
only military but also political goals.
64. Statements by Israeli leaders to the effect that the destruction of civilian objects would be
justified as a response to rocket attacks (“destroy 100 homes for every rocket fired”) indicate the
possibility of resorting to reprisals. The Mission is of the view that reprisals against civilians in
armed hostilities are contrary to international humanitarian law.
13. The impact of the military operations and of the blockade
on the people of Gaza and their human rights
65. The Mission examined the combined impact of the military operations and of the
blockade on the Gaza population and its enjoyment of human rights. The economy, employment
opportunities and family livelihoods were already severely affected by the blockade when the
Israeli offensive began. Insufficient supply of fuel for electricity generation had a negative
impact on industrial activity, on the operation of hospitals, on water supply to households and on
sewage treatment. Import restrictions and the ban on all exports from Gaza affected the industrial
sector and agricultural production. Unemployment levels and the percentage of the population
living in poverty or deep poverty were rising.

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66. In this precarious situation, the military operations destroyed a substantial part of the
economic infrastructure. As many factories were targeted and destroyed or damaged, poverty,
unemployment and food insecurity further increased dramatically. The agricultural sector
similarly suffered from the destruction of farmland, water wells and fishing boats during the
military operations. The continuation of the blockade impedes the reconstruction of the
economic infrastructure that was destroyed.
67. The razing of farmland and the destruction of greenhouses are expected to further worsen
food insecurity despite the increased quantities of food items allowed into Gaza since the
beginning of the military operations. Dependence on food assistance increases. Levels of
stunting and thinness in children and of anaemia prevalence in children and pregnant women
were worrying even before the military operations. The hardship caused by the extensive
destruction of shelter (the United Nations Development Programme reported 3,354 houses
completely destroyed and 11,112 partially damaged) and the resulting displacement particularly
affects children and women. The destruction of water and sanitation infrastructure (such as the
destruction of the Namar wells and the attack against the water treatment plant described in
chapter XIII) aggravated the pre-existing situation. Even before the military operations, 80 per
cent of the water supplied in Gaza did not meet the World Health Organization’s standards for
drinking water. The discharge of untreated or partially treated wastewater into the sea is a further
health hazard worsened by the military operations.
68. The military operations and resulting casualties subjected the beleaguered Gaza health
sector to additional strain. Hospitals and ambulances were targeted by Israeli attacks. Patients
with chronic health conditions could not be given priority in hospitals faced with an influx of
patients with life-threatening injuries. Patients injured during the hostilities were often
discharged quickly to free beds. The long-term health impact of these early discharges, as well as
of weapons containing substances such as tungsten and white phosphorous, remains a source of
concern. While the exact number of people who will suffer permanent disabilities is still
unknown, the Mission understands that many persons who sustained traumatic injuries during
the conflict still face the risk of permanent disability owing to complications and inadequate
follow-up and physical rehabilitation.
69. The number of persons suffering from mental health problems is also bound to increase.
The Mission investigated a number of incidents in which adults and children witnessed the
killing of loved ones. Doctors of the Gaza Community Mental Health Programme gave
information to the Mission on psychosomatic disorders, on a widespread state of alienation in the
population and on “numbness” as a result of severe loss. They told the Mission that these
conditions were in turn likely to increase the readiness to embrace violence and extremism. They
also told the Mission that 20 per cent of children in the Gaza Strip suffer from post-traumatic
stress disorders.
70. Children’s psychological learning difficulties are compounded by the impact of the
blockade and the military operations on the education infrastructure. Some 280 schools and
kindergartens were destroyed in a situation in which restrictions on the importation of
construction materials meant that many school buildings were already in serious need of repair.

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71. The Mission’s attention was also drawn to the particular manner in which women were
affected by the military operations. The cases of women interviewed by the Mission in Gaza
dramatically illustrate the suffering caused by the feeling of inability to provide children with the
care and security they need. Women’s responsibility for the household and the children often
forces them to conceal their own sufferings, resulting in their issues remaining unaddressed. The
number of women who are the sole breadwinners increased, but their employment opportunities
remain significantly inferior to men’s. The military operations and increased poverty add to the
potential for conflicts in the family and between widows and their in-laws.
72. The Mission acknowledges that the supply of humanitarian goods, particularly foodstuffs,
allowed into Gaza by Israel temporarily increased during the military operations. The level of
goods allowed into Gaza before the military operations was, however, insufficient to meet the
needs of the population even before hostilities started, and has again decreased since the end of
the military operations. From the facts ascertained by it, the Mission believes that Israel has
violated its obligation to allow free passage of all consignments of medical and hospital objects,
food and clothing (article 23 of the Fourth Geneva Convention). The Mission also finds that
Israel violated specific obligations which it has as the occupying Power and which are spelled
out in the Fourth Geneva Convention, such as the duty to maintain medical and hospital
establishments and services and to agree to relief schemes if the occupied territory is not well
supplied.
73. The Mission also concludes that in the destruction by the Israeli armed forces of private
residential houses, water wells, water tanks, agricultural land and greenhouses there was a
specific purpose of denying sustenance to the population of the Gaza Strip. The Mission finds
that Israel violated its duty to respect the right of the Gaza population to an adequate standard of
living, including access to adequate food, water and housing. The Mission, moreover, finds
violations of specific human rights provisions protecting children, particularly those who are
victims of armed conflict, women and the disabled.
74. The conditions of life in Gaza, resulting from deliberate actions of the Israeli armed forces
and the declared policies of the Government of Israel – as they were presented by its authorized
and legitimate representatives – with regard to the Gaza Strip before, during and after the
military operation, cumulatively indicate the intention to inflict collective punishment on the
people of the Gaza Strip in violation of international humanitarian law.
75. Finally, the Mission considered whether the series of acts that deprive Palestinians in the
Gaza Strip of their means of sustenance, employment, housing and water, that deny their
freedom of movement and their right to leave and enter their own country, that limit their access
to courts of law and effective remedies could amount to persecution, a crime against humanity.
From the facts available to it, the Mission is of the view that some of the actions of the
Government of Israel might justify a competent court finding that crimes against humanity have
been committed.
14. The continuing detention of Israeli soldier Gilad Shalit
76. The Mission notes the continued detention of Gilad Shalit, a member of the Israeli armed
forces, captured in 2006 by a Palestinian armed group. In reaction to his capture, the Israeli
Government ordered a number of attacks against infrastructure in the Gaza Strip and Palestinian

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Authority offices as well as the arrest of eight Palestinian Government ministers and 26 members
of the Palestinian Legislative Council. The Mission heard testimonies indicating that, during the
military operations of December 2008 – January 2009, Israeli soldiers questioned captured
Palestinians about the whereabouts of Gilad Shalit. Gilad Shalit’s father, Noam Shalit, appeared
before the Mission at the public hearing held in Geneva on 6 July 2009.
77. The Mission is of the opinion that, as a soldier who belongs to the Israeli armed forces and
who was captured during an enemy incursion into Israel, Gilad Shalit meets the requirements for
prisoner-of-war status under the Third Geneva Convention. As such, he should be protected,
treated humanely and be allowed external communication as appropriate according to that
Convention. The International Committee of the Red Cross (ICRC) should be allowed to visit
him without delay. Information about his condition should also be provided promptly to his
family.
78. The Mission is concerned by declarations made by various Israeli officials who have
indicated the intention of maintaining the blockade of the Gaza Strip until the release of Gilad
Shalit. The Mission is of the opinion that this would constitute collective punishment of the
civilian population of the Gaza Strip.
15. Internal violence and targeting of Fatah affiliates by security services
under the control of the Gaza authorities
79. The Mission obtained information about violence against political opponents by the
security services that report to the Gaza authorities. These included the killing of a number of
Gaza residents between the beginning of the Israeli military operations and 27 February. Among
these were some detainees who had been at al-Saraya detention facility on 28 December and who
had fled following the Israeli aerial attack. Not all those killed after escaping detention were
Fatah affiliates, detained for political reasons, or charged with collaborating with the enemy.
Some of the escapees had been convicted of serious crimes, such as drug-dealing or murder, and
had been sentenced to death. The Mission was informed that the movement of many Fatah
members was restricted during Israel’s military operations in Gaza and that many were put under
house arrest. According to the Gaza authorities, arrests were made only after the end of the
Israeli military operations and only in relation to criminal acts and to restore public order.
80. The Mission gathered first-hand information on five cases of Fatah affiliates detained,
killed or subject to physical abuse by members of the security forces or armed groups in Gaza. In
most cases those abducted from their homes or otherwise detained were reportedly not accused
of offences related to specific incidents, but rather targeted because of their political affiliation.
When charges were laid, these were always linked to suspected political activities. The
testimonies of witnesses and the reports provided by international and domestic human rights
organizations bear striking similarities and indicate that these attacks were not randomly
executed, but constituted part of a pattern of organized violence directed mainly against Fatah
affiliates and supporters. The Mission finds that such actions constitute serious violations of
human rights and are not consistent with either the Universal Declaration of Human Rights or the
Palestinian Basic Law.

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The Occupied Palestinian Territory: the West Bank, including East Jerusalem
81. The Mission considered developments in Gaza and the West Bank as closely interrelated,
and analysed both to reach an informed understanding of and to report on issues within its
mandate.
82. A consequence of Israel’s non-cooperation with the Mission was that the Mission was
unable to visit the West Bank to investigate alleged violations of international law there.
However, the Mission has received many oral and written reports and other relevant materials
from Palestinian, Israeli and international human rights organizations and institutions. In
addition, the Mission has met representatives of human rights organizations, members of the
Palestinian legislature and community leaders. It heard experts, witnesses and victims at the
public hearings, interviewed affected individuals and witnesses, and reviewed video and
photographic material.
1. Treatment of Palestinians in the West Bank by Israeli security forces,
including use of excessive or lethal force during demonstrations
83. Various witnesses and experts informed the Mission of a sharp rise in the use of force by
the Israeli security forces against Palestinians in the West Bank from the beginning of the Israeli
operations in Gaza (chap. XX). A number of protestors were killed by Israeli forces during
Palestinian demonstrations, including in support of the Gaza population under attack, and scores
were injured. The level of violence used in the West Bank during the time of the operation in
Gaza was sustained also after the operation.
84. Of particular concern to the Mission were allegations of the use of unnecessary, lethal
force by Israeli security forces, the use of live ammunitions, and the provision in the Israeli
armed forces “open fire regulations” of different rules to deal with disturbances where only
Palestinians are present and those where Israelis are present. This raises serious concern with
regard to discriminatory policies vis-à-vis Palestinians. Eyewitnesses also reported to the
Mission on the use of sniper fire in the context of crowd control. Witnesses spoke of the
markedly different atmosphere they encountered in the confrontation with the soldiers and
border police during demonstrations in which all checks and balances had been removed. Several
witnesses told the Mission that during the operation in Gaza, the sense in the West Bank was one
of a “free for all”, where anything was permitted.
85. Little if any action is taken by the Israeli authorities to investigate, prosecute and punish
violence against Palestinians, including killings, by settlers and members of the security forces,
resulting in a situation of impunity. The Mission concludes that Israel has failed to fulfil its
obligations to protect the Palestinians from violence by private individuals under both
international human rights law and international humanitarian law.
2. Detention of Palestinians in Israeli prisons
86. It is estimated that, since the beginning of the occupation, approximately 700,000
Palestinian men, women and children have been detained by Israel. According to estimates, as at
1 June 2009, there were approximately 8,100 Palestinian “political prisoners” in detention in
Israel, including 60 women and 390 children. Most of these detainees are charged or convicted

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by the Israeli military court system that operates for Palestinians in the West Bank and under
which due process rights for Palestinians are severely limited. Many are held in administrative
detention and some under the Israeli “Unlawful Combatants Law”.
87. The Mission focused on a number of issues in relation to Palestinian detainees that in its
view are linked to the December-January Israeli military operations in Gaza or their context.
88. Legal measures since Israel’s disengagement from Gaza in 2005 have resulted in
differential treatment for Gazan detainees. A 2006 law altered due process guarantees and is
applied only to Palestinian suspects, the overwhelming majority of whom are from Gaza,
according to Israeli Government sources. The ICRC Family Visits Programme in the Gaza Strip
was suspended in 2007, barring all means of communication between Gazan prisoners and the
outside world.
89. During the Israeli military operations in Gaza, the number of children detained by Israel
was higher than in the same period in 2008. Many children were reportedly arrested on the street
and/or during demonstrations in the West Bank. The number of child detainees continued to be
high in the months following the end of the operations, accompanied by reports of abuses by
Israeli security forces.
90. A feature of Israel’s detention practice vis-à-vis the Palestinians since 2005 has been the
arrest of Hamas affiliates. A few months before the elections for the Palestinian Legislative
Council in 2005, Israel arrested numerous persons who had been involved in municipal or
Legislative Council elections. Following the capture by Palestinian armed groups of Israeli
soldier Gilad Shalit in June 2006, the Israeli armed forces arrested some 65 members of the
Legislative Council, mayors and ministers, mostly Hamas members. All were held at least two
years, generally in inadequate conditions. Further arrests of Hamas leaders were conducted
during the military operations in Gaza. The detention of members of the Legislative Council has
meant that it has been unable to function and exercise its legislative and oversight function over
the Palestinian executive.
91. The Mission finds that these practices have resulted in violations of international human
rights and humanitarian law, including the prohibition of arbitrary detention, the right to equal
protection under the law and not to be discriminated based on political beliefs and the special
protections to which children are entitled. The Mission also finds that the detention of members
of the Legislative Council may amount to collective punishment contrary to international
humanitarian law.
3. Restrictions on freedom of movement in the West Bank
92. In the West Bank, Israel has long imposed a system of restrictions on movement.
Movement is restricted by a combination of physical obstacles, such as roadblocks, checkpoints
and the Wall, and administrative measures, such as identity cards, permits, assigned residence,
laws on family reunification, and policies on the right to enter from abroad and the right of return
for refugees. Palestinians are denied access to areas expropriated for the building of the Wall and
its infrastructure, for use by settlements, buffer zones, military bases and military training zones,
and the roads built to connect these places. Many of these roads are “Israeli only” and forbidden
for Palestinian use. Tens of thousands of Palestinians today are subject to a travel ban imposed

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by Israel, preventing them from travelling abroad. A number of witnesses and experts invited by
the Mission to meet in Amman and participate in the hearings in Geneva could not meet the
Mission owing to this travel ban.
93. The Mission has received reports that, during the Israeli offensive in Gaza, restrictions on
movement in the West Bank were tightened. Israel imposed a “closure” on the West Bank for
several days. In addition, there were more checkpoints in the West Bank, including in East
Jerusalem, for the duration of the operation. Most of these were so-called flying checkpoints. In
January 2009, several areas of the West Bank between the Wall and the Green Line were
declared “closed military areas”.
94. During and following the operations in Gaza, Israel tightened its hold on the West Bank
by increasing expropriations, house demolitions and demolition orders, granting more permits
for homes built in settlements and intensifying the exploitation of the natural resources in the
West Bank. Following the operations in Gaza, Israel has amended the regulations which
determine the ability of persons with “Gaza ID” to move to the West Bank and vice versa,
further entrenching the separation between the people of the West Bank and Gaza.
95. Israel’s Ministry of Housing and Planning is planning a further 73,000 settlement homes
in the West Bank. The building of 15,000 of these homes has already been approved and, if all
the plans are realized, the number of settlers in the Occupied Palestinian Territory will double.
96. The Mission believes that the restrictions on movement and access to which Palestinians
in the West Bank are subject, in general, and the tighter restrictions during and, to some extent,
after the military operations in Gaza, in particular, are disproportionate to any military objective
served . In addition, the Mission is concerned about the steps taken recently to formalize the
separation between Gaza and the West Bank, and as such between two parts of the Occupied
Palestinian Territory.
4. Internal violence and targeting of Hamas supporters by the Palestinian
Authority, restrictions on freedom of expression and assembly
97. The Mission has received allegations of violations relevant to its mandate committed by
the Palestinian Authority in the period under inquiry. These include violations related to the
treatment of (suspected) Hamas affiliates by the security services, including unlawful arrest and
detention. Several Palestinian human rights organizations have reported that practices used by
the Palestinian Authority security forces in the West Bank amount to torture and cruel, inhuman
and degrading treatment and punishment. There have been a number of deaths in detention to
which it is suspected that torture and other ill-treatment may have contributed or which they
may have caused. Complaints of such practices have not been investigated.
98. Allegations were also received about the use of excessive force and the suppression of
demonstrations by Palestinian security services – particularly those in support of the population
of Gaza during the Israeli military operations. On these occasions Palestinian Authority security
services have allegedly arrested many individuals and prevented the media from covering the
events. The Mission also received allegations of harassment by Palestinian security services of
journalists who expressed critical views.

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99. The disabling of the Palestinian Legislative Council following the arrest and detention by
Israel of several of its members has effectively curtailed parliamentary oversight over the
Palestinian Authority executive. The executive has passed decrees and regulations to enable it to
continue its day-to-day operations.
100. Other allegations include the arbitrary closure of charities and associations affiliated with
Hamas and other Islamic groups or the revocation and non-renewal of their licences, the forcible
replacement of board members of Islamic schools and other institutions, and the dismissal of
Hamas-affiliated teachers.
101. The Palestinian Authority continues to discharge a large number of civil and military
service employees, or suspend their salaries, under the pretext of “non-adherence to the
legitimate authority” or “non-obtainment of security approval” on their appointments, which has
become a pre-requirement for enrolment in public service. In effect, this measure excludes
Hamas supporters or affiliates from public sector employment.
102. The Mission is of the view that the reported measures are inconsistent with the Palestinian
Authority’s obligations deriving from the Universal Declaration of Human Rights and the
Palestinian Basic Law.
Israel
1. Impact on civilians of rocket and mortar attacks by Palestinian
armed groups on southern Israel
103. Palestinian armed groups have launched about 8000 rockets and mortars into southern
Israel since 2001 (chap. XXIV). While communities such as Sderot and Nir Am kibbutz have
been within the range of rocket and mortar fire since the beginning, the range of rocket fire
increased to nearly 40 kilometres from the Gaza border, encompassing towns as far north as
Ashdod, during the Israeli military operations in Gaza.
104. Between 18 June 2008 and 18 January 2009, rockets fired by Palestinian armed groups in
Gaza have killed three civilians inside Israel and two civilians in Gaza when a rocket landed
short of the border on 26 December 2008. Reportedly, over 1000 civilians inside Israel were
physically injured as a result of rocket and mortar attacks, 918 of whom were injured during the
time of the Israeli military operations in Gaza.
105. The Mission has taken particular note of the high level of psychological trauma suffered
by the civilian population inside Israel. Data gathered by an Israeli organization in October 2007
found that 28.4 per cent of adults and 72–94 per cent of children in Sderot suffered from posttraumatic
stress disorder. During the military operations in Gaza 1596 people were reportedly
treated for stress-related injuries while afterwards over 500 people were treated.
106. Rockets and mortars have damaged houses, schools and cars in southern Israel. On 5
March 2009, a rocket struck a synagogue in Netivot. The rocket and mortar fire has adversely
affected the right to education of children and adults living in southern Israel. This is a result of
school closures and interruptions to classes by alerts and moving to shelters but also the

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diminished ability to learn that is witnessed in individuals experiencing symptoms of
psychological trauma.
107. The rocket and mortar fire has also had an adverse impact on the economic and social life
of the affected communities. For communities such as Ashdod, Yavne, Beersheba, which
experienced rocket strikes for the first time during the Israeli military operations in Gaza, there
was a brief interruption to their economic and cultural activities brought about by the temporary
displacement of some residents. For towns closer to the Gaza border, which have been under
rocket and mortar fire since 2001, the recent escalation has added to the exodus of residents.
108. The Mission has determined that the rockets and, to a lesser extent, the mortars fired by
the Palestinian armed groups are incapable of being directed towards specific military objectives
and have been fired into areas where civilian populations are based. The Mission has further
determined that these attacks constitute indiscriminate attacks upon the civilian population of
southern Israel and that, where there is no intended military target and the rockets and mortars
are launched into a civilian population, they constitute a deliberate attack against a civilian
population. These acts would constitute war crimes and may amount to crimes against humanity.
Given the seeming inability of the Palestinian armed groups to direct the rockets and mortars
towards specific targets and given that the attacks have caused very little damage to Israeli
military assets, the Mission finds that there is significant evidence to suggest that one of the
primary purposes of the rocket and mortar attacks is to spread terror among the Israeli civilian
population, a violation of international law.
109. Noting that some of the Palestinian armed groups, among them Hamas, have publicly
expressed their intention to target civilians in reprisal for the civilian fatalities in Gaza as a result
of Israeli military operations, the Mission is of the view that reprisals against civilians in armed
hostilities are contrary to international humanitarian law.
110. The Mission notes that the relatively few casualties sustained by civilians inside Israel is
due in large part to the precautions put into place by Israel. This includes an early warning
system, the provision of public shelters and fortifications of schools and other public buildings at
great financial cost – a projected US$ 460 million between 2005 and 2011 – to the Government
of Israel. The Mission is greatly concerned, however, about the lack of an early warning system
and a lack of public shelters and fortifications for the Palestinian Israeli communities living in
unrecognized and in some of the recognized villages that are within the range of rocket and
mortars being fired by Palestinian armed groups in Gaza.
2. Repression of dissent in Israel, the right of access to information
and treatment of human rights defenders
111. The Mission received reports that individuals and groups, viewed as sources of criticism
of Israel’s military operations were subjected to repression or attempted repression by the
Government of Israel. Amidst a high level of support for the Israeli military operations in Gaza
from the Israeli Jewish population, there were also widespread protests against the military
operations inside Israel. Hundreds of thousands – mainly, but not exclusively, Palestinian
citizens of Israel – protested. While, in the main, the protests were permitted to take place, there
were occasions when, reportedly, protesters had difficulty in obtaining permits – particularly in
areas populated mainly by Palestinian Israelis. In Israel and in occupied East Jerusalem 715

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people were arrested during the protests. There appear to have been no arrests of counterprotesters
and 34 per cent of those arrested were under 18 years of age. The Mission notes that a
relatively small proportion of those protesting were arrested. The Mission urges the Government
of Israel to ensure that the police authorities respect the rights of all its citizens, without
discrimination, including freedom of expression and the right to peaceful assembly, as
guaranteed to them by the International Covenant on Civil and Political Rights.
112. The Mission notes with concern the reported instances of physical violence committed by
members of the police against protesters, including the beating of protesters and other
inappropriate conduct such as subjecting Palestinian citizens of Israel who were arrested to racial
abuse and making sexual comments about female members of their families. Article 10 of the
Covenant requires that those deprived of their liberty be treated with humanity and respect for
the inherent dignity of the human person.
113. Of the protesters brought before the Israeli courts, the Palestinian Israelis were
disproportionately held in detention pending trial. The element of discrimination and differential
treatment between Palestinian and Jewish citizens of Israel by the judicial authorities, as
indicated in the reports received, is a substantial cause for concern.
114. The interviews of political activists by the Israeli General Security Services were cited as
the actions contributing most significantly to a climate of repression inside Israel. The Mission is
concerned about activists being compelled to attend interviews with Shabak (also known as Shin
Bet), without there being any legal obligation on them to do so, and in general at the alleged
interrogation of political activists about their political activities.
115. The Mission received reports concerning the investigation by the Government of Israel
into New Profile on allegations that it was inciting draft-dodging, a criminal offence, and reports
that the Government was seeking to terminate funding from foreign Governments for Breaking
the Silence, following its publication of testimonies of Israeli soldiers concerning the conduct of
the Israeli armed forces in Gaza in December 2008 and January 2009. The Mission is concerned
that the Government of Israel’s action with regard to these organizations may have an
intimidating effect on other Israeli human rights organizations. The so-called United Nations
Declaration on Human Rights Defenders guarantees the right “to solicit, receive and utilize
resources for the express purpose of promoting and protecting human rights and fundamental
freedoms through peaceful means”. If motivated by reaction to the organization’s exercise of its
freedom of expression, lobbying foreign Governments to terminate funding would be contrary to
the spirit of the Declaration.
116. The Government of Israel imposed a ban on media access to Gaza following
5 November 2008. Furthermore, access was denied to human rights organizations and the ban
continues for some international and Israeli organizations. The Mission can find no justification
for this. The presence of journalists and international human rights monitors aids the
investigation and wide public reporting of the conduct of the parties to the conflict, and can
inhibit misconduct. The Mission observes that Israel, in its actions against political activists,
non-governmental organizations and the media, has attempted to reduce public scrutiny of both
its conduct during its military operations in Gaza and the consequences that these operations had
for the residents of Gaza, possibly seeking to prevent investigation and public reporting thereon.

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D. Accountability
1. Proceedings and responses by Israel to allegations of violations
by its armed forces against Palestinians
117. Investigations and, if appropriate, prosecutions of those suspected of serious violations are
necessary if respect for human rights and humanitarian law is to be ensured and to prevent the
development of a climate of impunity. States have a duty under international law to investigate
allegations of violations.
118. The Mission reviewed public information and reports from the Government of Israel
concerning actions taken to discharge its obligation to investigate alleged violations
(chap. XXVI). It addressed to Israel a number of questions on this issue, but it did not receive a
reply.
119. In response to allegations of serious violations of human rights law and international
humanitarian law, the Military Advocate General ordered some criminal investigations that were
closed two weeks later concluding that allegations “were based on hearsay”. The Israeli armed
forces also released the results of five special investigations carried out by high-ranking military
officers, which concluded that “throughout the fighting in Gaza, the IDF operated in accordance
with international law”, but the investigations reportedly revealed a very small number of errors.
On 30 July 2009 the media reported that the Military Advocate General had ordered the military
police to launch criminal investigations into 14 cases out or nearly 100 complaints of criminal
conduct by soldiers. No details were offered.
120. The Mission reviewed the Israeli internal system of investigation and prosecution
according to its national legislation and in the light of practice. The system comprises: (a)
disciplinary proceedings; (b) operational debriefings (also known as “operational
investigations”); (c) special investigations, performed by a senior officer at the request of the
chief of staff; and (d) military police investigations, carried out by the Criminal Investigation
Division of the military police. At the heart of the system lies the so-called operational
debriefing. The debriefings are reviews of incidents and operations conducted by soldiers from
the same unit or line of command together with a superior officer. They are meant to serve
operational purposes.
121. International human rights law and humanitarian law require States to investigate and, if
appropriate, prosecute allegations of serious violations by military personnel. International law
has also established that such investigations should comply with standards of impartiality,
independence, promptness and effectiveness. The Mission holds that the Israeli system of
investigation does not comply with all those principles. In relation to the “operational
debriefing” used by the Israeli armed forces as an investigative tool, the Mission holds the view
that a tool designed for the review of performance and to learn lessons can hardly be an effective
and impartial investigation mechanism that should be instituted after every military operation
where allegations of serious violations have been made. It does not comply with internationally
recognized principles of impartiality and promptness in investigations. The fact that proper
criminal investigations can start only after the “operational debriefing” is over is a major flaw in
the Israeli system of investigation.
A/HRC/12/48 (ADVANCE 1)
page 24
122. The Mission concludes that there are serious doubts about the willingness of Israel to
carry out genuine investigations in an impartial, independent, prompt and effective way as
required by international law. The Mission is also of the view that the Israeli system overall
presents inherently discriminatory features that make the pursuit of justice for Palestinian victims
very difficult.
2. Proceedings by Palestinian authorities
(a) Proceedings related to actions in the Gaza Strip
123. The Mission found no evidence of any system of public monitoring or accountability for
serious violations of international humanitarian law and human rights law set up by the Gaza
authorities. The Mission is concerned with the consistent disregard for international
humanitarian law with which armed groups in the Gaza Strip conduct their armed activities,
through rocket and mortar fire, directed against Israel. Despite some media reports, the Mission
remains unconvinced that any genuine and effective initiatives have been taken by the authorities
to address the serious issues of violation of international humanitarian law in the conduct of
armed activities by militant groups in the Gaza Strip.
124. Notwithstanding statements by the Gaza authorities and any action that they may have
taken, of which the Mission is unaware, the Mission also considers that allegations of killings,
torture and mistreatment within the Gaza Strip have gone largely without investigation.
(b) Proceedings related to actions in the West Bank
125. With regard to relevant violations identified in the West Bank, it appears that, with few
exceptions, there has been a degree of tolerance towards human rights violations against political
opponents, which has resulted in a lack of accountability for such actions. The Ministry of
Interior has also ignored the High Court’s decisions to release a number of detainees or to reopen
some associations closed by the administration.
126. In the circumstances, the Mission is unable to consider the measures taken by the
Palestinian Authority as meaningful for holding to account perpetrators of serious violations of
international law and believes that the responsibility for protecting the rights of the people
inherent in the authority assumed by the Palestinian Authority must be fulfilled with greater
commitment
3. Universal jurisdiction
127. In the context of increasing unwillingness on the part of Israel to open criminal
investigations that comply with international standards, the Mission supports the reliance on
universal jurisdiction as an avenue for States to investigate violations of the grave breach
provisions of the Geneva Conventions of 1949, prevent impunity and promote international
accountability (chap. XXVIII).
4. Reparations
128. International law also establishes that, whenever a violation of an international obligation
occurs, an obligation to provide reparation arises. It is the view of the Mission that the current

A/HRC/12/48 (ADVANCE 1)
page 25
constitutional structure and legislation in Israel leaves very little room, if any, for Palestinians to
seek compensation. The international community needs to provide for an additional or
alternative mechanism of compensation for damage or loss incurred by Palestinian civilians
during the military operations (chap. XXIX).
E. Conclusions and recommendations
129. The Mission draws general conclusions on its investigations in chapter XXX, which also
includes a summary of its legal findings.
130. The Mission then makes recommendations to a number of United Nations bodies, Israel,
the responsible Palestinian authorities and the international community on: (a) accountability for
serious violations of international humanitarian law; (b) reparations; (c) serious violations of
human rights law; (d) the blockade and reconstruction; (e) the use of weapons and military
procedures; (f) the protection of human rights organizations and defenders ; (g) follow-up to the
Mission’s recommendations. The recommendations are detailed in chapter XXXI.
- – - – -

Quelle: UN

Hier die erste offizielle israelische Antwort auf den Goldstone-Bericht:

1
Israels Reaktion auf den ‚Goldstone-Bericht’
Israel ist entrüstet und enttäuscht über den Bericht, der am 15. September von
der Gaza-Untersuchungsmission veröffentlicht wurde. Der ‚Goldstone-Bericht’
ignoriert praktisch Israels Recht auf Selbstverteidigung, stellt unbegründete
Behauptungen zu seinen Absichten auf und stellt Israels demokratische Werte
und Rechtsstaatlichkeit infrage.
Gleichzeitig ignoriert der Bericht völlig die gezielte Strategie der Hamas,
innerhalb der Zivilbevölkerung zu operieren und dicht bevölkerte Gebiete zum
Kampfschauplatz zu machen. Indem er über solche Taktiken hinwegsieht,
belohnt er sie regelrecht.
Der Bericht verhüllt kaum sein Ziel, zu einer politischen Kampagne gegen Israel
anzustacheln; mit seinen Empfehlungen trachtet er danach, den UNSicherheitsrat,
die UN-Vollversammlung, den Internationalen Gerichtshof, den
UN-Menschenrechtsrat und die gesamte internationale Gemeinschaft in eine
derartige Kampagne hineinzuziehen.
Das Mandat der Mission
Das einseitige Mandat der Gaza-Untersuchungsmission sowie der von ihr
gefasste Beschluss haben Anlass zu ernster Sorge gegeben – sowohl Israel als
auch den vielen Staaten im Rat, die ihm die Unterstützung versagten,
einschließlich der Mitgliedsstaaten der Europäischen Union, der Schweiz,
Kanadas, Südkoreas und Japans.
Ebenso hat es zahlreiche angesehene Persönlichkeiten beunruhigt, u. a. die
frühere UN-Hochkommissarin für Menschenrechte, Mary Robinson, die sich
weigerte, der Einladung zur Leitung der Mission nachzukommen, und einräumte,
dass diese nicht von Menschenrechten, sondern von Politik geleitet sei.
2
Das Vorgehen der Mission
Diese Befürchtungen wurden von der Vorgehensweise der Mission selbst noch
verstärkt. So etwa wurde in palästinensischen Medien berichtet, dass sie bei all
ihren Besuchen in Gaza kontinuierlich von Hamas-Vertretern begleitet wurde.
Auch weigerte sie sich, Mitglieder der Mission mit klaren politischen Haltungen
zu den zur Untersuchung stehenden Fragen wegen Voreingenommenheit
abzulehnen. Ein Missionsmitglied unterzeichnete einen Brief an die Sunday
Times, in dem es hieß, Israels Aktionen gegen die Hamas-Angriffe seien Akte
der „Aggression, nicht der Selbstverteidigung“, und sprach so bereits ein Urteil
über die Untersuchung aus, bevor diese überhaupt begonnen hatte.
Auch das präzedenzlose Verfahren von Fernsehanhörungen hat Anlass zur
schweren Sorge gegeben. Die Tatsache, dass alle Zeugen im Vorfeld gescreent
und selektiert wurden, jedoch niemand Auskunft zu palästinensischen
Terroraktionen oder der Lokalisierung von Waffen und Terroristen in
Wohngebieten geben musste, verstärkt nur die Befürchtung, dass sie Teil einer
fein abgestimmten politischen Kampagne waren.
Ein „nichtjuristisches“ Dokument
Richter Goldstone hat als Leiter der Mission wiederholt darauf insistiert, dass die
Mission keine juristische Untersuchung darstelle und so auch „keine juristischen
Schlüsse ziehen könnte“. Auf dieser Grundlage rechtfertigte er die
Miteinbeziehung von parteiischen Missionsmitgliedern, wobei er zugab, ihre
Involvierung „wäre einer juristischen Untersuchung nicht angemessen“. Der
Bericht ist jedoch höchst juristischer Natur; er kommt zu abschließenden
juristischen Schuldzuweisungen und schließt selbst in Abwesenheit der
sensiblen Geheimdienstinformationen, die Israel zu liefern sich nicht in der Lage
sah, „detaillierte rechtliche Befunde“ ein. Diese Schuldzuweisungen wurden
gefällt, obwohl der Bericht zugibt, er gebe nicht vor, „den in Strafprozessen
geltenden Beweisstandard zu erreichen“.
Ignorierte Aspekte
Der Bericht ignoriert völlig die gezielte terroristische Strategie, im Herzen von
dicht bevölkerten Wohngebieten zu operieren, die den Kampfschauplatz
bestimmt hat. Selbst wenn sich die Hamas-Terroristen unter Zivilisten mischten,
weist der Bericht die Behauptung zurück, dass die Zivilbevölkerung absichtlich
einem Risiko ausgesetzt wurde.
Erstaunlicherweise stellt der Bericht – trotz der vielen in der internationalen
Presse gemeldeten Beispiele für den Missbrauch ziviler Einrichtungen durch
Terrorgruppen und den Erklärungen von Hamas-Führern selbst, die Frauen und
3
Kinder priesen, welche als menschliche Schutzschilde fungiert hatten -
wiederholt fest, dass er keine Beweise für derartige Aktivitäten habe finden
können. Und dies, obwohl er einräumt, dass die Interviewten „unwillig waren,
über die Präsenz oder das Kampfverhalten von bewaffneten palästinensischen
Gruppen zu sprechen“.
Der Bericht ignoriert auch Israels umfassende Bemühungen, selbst inmitten der
Kämpfe humanitäre Standards aufrecht zu erhalten. Während er in
zurückhaltender Weise Israels „beträchtliche Bemühungen“ anerkennt, vor den
Angriffen Warnungen auszusprechen, betrachtet er keine dieser Bemühungen
als wirksam.
Während der Bericht Israel hinsichtlich beinahe aller Anschuldigungen verurteilt,
sucht er die Hamas von beinahe jedem Fehlverhalten freizusprechen. Das Wort
„Terrorist“ fehlt fast völlig. Der Soldat Gilad Shalit, der sich mittlerweile seit über
drei Jahren von der Außenwelt abgeschnitten in Gefangenschaft befindet, wurde
„während eines feindlichen Einfalls gefangen genommen“, und den Hamas-
Mitgliedern, mit denen sich die Mission in Gaza getroffen hat, wird als ‚Behörden
von Gaza’ („Gaza authorities“) dafür gedankt, dass sie der Mission ihre volle
Kooperation und Unterstützung gewährt haben.
Die Tausenden von Raketenangriffen auf Israelis, die die Gaza-Operation
notwendig gemacht haben, erfahren nur flüchtigste Erwähnung; tatsächlich gibt
der Bericht Israel indirekt die Schuld für diese, indem er sie als
„Vergeltungsmaßnahmen“ bezeichnet.
Zurückweisung demokratischer Werte
Als ein Bericht, der sich stark auf israelische Menschenrechtsorganisationen
stützt und sich in sensiblen Sicherheitsfragen an Israels Obersten Gerichtshof
wendet, widmet der Bericht ein beträchtliches Maß an Aufmerksamkeit der
„Unterdrückung von Widerspruch in Israel“. Diese Behauptung begründet er zum
großen Teil mit der weit verbreiteten Zustimmung für die Militäroperation
innerhalb der israelischen Öffentlichkeit, wobei er annimmt, dass Israel ein
politisches Klima geschaffen habe, „in dem Widerspruch nicht geduldet wird“.
Der Gedanke, dass die Mehrheit der Israelis aus innerster Überzeugung ein
Vorgehen zur Beendigung der andauernden Raketenangriffe auf israelische
Zivilisten unterstützte, scheint den Mitgliedern der Mission nicht gekommen zu
sein.
Der Bericht ist auch kritisch gegenüber internen israelischen Untersuchungen,
obwohl diese im Vergleich mit Untersuchungen von Anschuldigungen in
militärischen Fragen in den meisten westlichen Ländern gut abschneiden und oft
strafrechtliche Ermittlungen und Schuldsprüche nach sich gezogen haben.
4
Empfehlungen
Die Empfehlungen des Berichts sind so einseitig wie seine Befunde. Er trachtet
danach, den Menschenrechtsrat, den Sicherheitsrat, die Vollversammlung, das
Büro der Hochkommissarin für Menschenrechte, den Internationalen Gerichtshof
und die internationale Gemeinschaft in seine feindselige politische Kampagne
einzuspannen.
Trotz symbolischer Empfehlungen in Hinsicht auf die palästinensische Seite
richtet sich der internationale Druck ausschließlich gegen Israel.
Die wahre Prüfung eines solchen Berichts kann nur darin bestehen, ob er in
zukünftigen Konflikten die Achtung vor dem Gesetz steigern oder vermindern
wird. Ein derart einseitiger Bericht, der zudem noch den Anspruch erhebt, das
internationale Recht zu repräsentieren, kann die Stellung des Rechts in
zukünftigen Konflikten leider nur schwächen. Gleichzeitig wird er den
Terrororganisationen, wo auch immer sie sein mögen, die beunruhigende
Botschaft übermitteln, dass sich die zynischen Taktiken der Instrumentalisierung
des Leidens von Zivilisten für politische Zwecke in der Tat auszahlen.
(Außenministerium des Staates Israel, 15.09.09)

Quelle: Israelische Botschaft

Hier die erweiterte offizielle israelische Antwort auf den Goldstone-Bericht (Januar 2010)

THE OPERATION IN GAZA:
GAZA OPERATION INVESTIGATIONS:  AN UPDATE
The State of Israel
JANUARY 2010
GAZA OPERATION INVESTIGATIONS: AN UPDATE
TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY…………………………………………………………………………………………………. i
I. INTRODUCTION………………………………………………………………………………………………….. 1
II. OVERVIEW OF ISRAEL’S SYSTEM FOR REVIEWING MISCONDUCT
ALLEGATIONS ……………………………………………………………………………………………………. 3
A. The Military Justice System………………………………………………………………………….. 3
(1) The Military Advocate General’s Corps ………………………………………………. 4
(2) The Military Police Criminal Investigation Division (MPCID) ………………. 5
(3) The Military Courts …………………………………………………………………………… 6
B. Civilian Supervision Over the Military Justice System …………………………………….. 8
(1) Attorney General of Israel………………………………………………………………….. 8
(2) Supreme Court of Israel …………………………………………………………………….. 8
III. THE INVESTIGATION OF ALLEGED VIOLATIONS OF THE LAW OF
ARMED CONFLICT……………………………………………………………………………………………. 12
A. Sources of Complaints………………………………………………………………………………… 13
B. Military Advocate General Screening and Referral ………………………………………… 14
C. Command Investigations…………………………………………………………………………….. 16
D. Criminal Investigations and Prosecutions ……………………………………………………… 18
E. The Similar Investigatory Systems of Other States…………………………………………. 20
(1) United Kingdom……………………………………………………………………………… 21
(2) United States…………………………………………………………………………………… 22
(3) Australia ………………………………………………………………………………………… 23
(4) Canada …………………………………………………………………………………………… 24
(5) Summary ……………………………………………………………………………………….. 25
IV. COMPLAINTS ALLEGING VIOLATIONS OF THE LAW OF ARMED
CONFLICT DURING THE GAZA OPERATION …………………………………………………… 26
A. Command Investigations…………………………………………………………………………….. 27
(1) Five Special Command Investigations Opened Upon the
Conclusion of the Gaza Operation …………………………………………………….. 27
GAZA OPERATION INVESTIGATIONS: AN UPDATE
(i) Claims regarding incidents in which a large number of
civilians not directly participating in the hostilities were
harmed ………………………………………………………………………………… 30
(ii) Claims regarding incidents where U.N. and international
facilities were fired upon and damaged during the Gaza
Operation …………………………………………………………………………….. 30
(iii) Incidents involving shooting at medical facilities, buildings,
vehicles and crews………………………………………………………………… 31
(iv) Destruction of private property and infrastructure by
ground forces……………………………………………………………………….. 32
(v) The use of weaponry containing phosphorous ………………………….. 32
(vi) Concluding observations ……………………………………………………….. 33
(2) Additional Special Command Investigation………………………………………… 33
(3) Other Command Investigations…………………………………………………………. 34
B. Criminal Investigations ………………………………………………………………………………. 35
C. Incidents Discussed in Human Rights Council Fact-Finding Report…………………. 36
(1) Namar wells group, Salah ad-Din Street, Jabaliyah refugee camp …………. 37
(2) The Gaza wastewater treatment plant, Road No. 10, al-Sheikh
Ejlin, Gaza City ………………………………………………………………………………. 38
(i) The date of the incident …………………………………………………………. 39
(ii) The possibility of an aerial strike ……………………………………………. 40
(iii) The possibility of a ground attack …………………………………………… 40
(iv) The possible causes of damage to the basin ……………………………… 41
(3) El-Bader flour mill ………………………………………………………………………….. 41
(4) The house of Abu-Askar family………………………………………………………… 45
V. CONCLUSION……………………………………………………………………………………………………. 46
GAZA OPERATION INVESTIGATIONS: AN UPDATE
- i -

EXECUTIVE SUMMARY
1. This Paper describes Israel’s process for investigating alleged violations of the Law of
Armed Conflict. It focuses in particular on investigations, legal proceedings, and lessons
learned in relation to the actions of the Israeli Defence Forces (IDF) in Gaza from 27
December 2008 through 18 January 2009 (the “Gaza Operation,” also known as
“Operation Cast Lead”).
2. The Paper supplements and updates a paper Israel released in July 2009, The Operation in
Gaza: Factual and Legal Aspects,1 which addressed a range of factual and legal issues
related to the Gaza Operation. The earlier paper included detailed accounts of Hamas’s
incessant mortar and rocket attacks on Israel’s civilians (some 12,000 such attacks in the 8
years prior to the Operation) and the steadily increasing range of such attacks; Hamas’s
suicide bomb attacks; and Hamas’s smuggling of weaponry and ammunition through
tunnels under the Egyptian-Gaza border, as well as Israel’s attempts to address these
threats through non-military means, including diplomatic overtures and urgent appeals to
the United Nations.
3. The Operation in Gaza also set out the legal framework governing the use of force and the
principles – including the principles of distinction and proportionality – that apply in such
a conflict. It also described the IDF’s efforts to ensure compliance with these principles
during the Gaza Operation and the modus operandi of Hamas, in particular its abuses of
civilian protections that created such acute operational dilemmas.
4. The Operation in Gaza also included preliminary findings of a number of the
investigations established following the operation, although such investigations were, and
remain, works in progress. For this reason, six months after the publication of the original
paper, it is appropriate once again to take stock publicly regarding the progress made and
the current findings of the investigative process. While many of these investigations are
still underway, this Paper aims to present a clear and up-to-date picture of the current
status of Israel’s investigations.
5. Israel’s system for investigating alleged violations of the Law of Armed Conflict is
comparable to the systems adopted by other democratic nations, including the United
Kingdom, the United States, Australia, and Canada. The Paper notes that Israel has
demonstrated its ability and its commitment to pursue serious criminal charges to uphold
the Law of Armed Conflict, a commitment which has been confirmed by outside
observers and foreign legal systems.
6. Israel’s investigative system has multiple layers of review to ensure impartiality and
independence. These include the Military Advocate General’s Corps (MAG), which
determines whether to initiate criminal investigations and file charges against IDF
soldiers. The Military Advocate General is legally independent from the military chain of
1 The Operation in Gaza: Factual and Legal Aspects, available at http://www.mfa.gov.il/MFA/Terrorism-
+Obstacle+to+Peace/Hamas+war+against+Israel/Operation_in_Gaza-Factual_and_Legal_Aspects.htm.

GAZA OPERATION INVESTIGATIONS: AN UPDATE

- ii -
command. Israel’s Attorney General provides civilian oversight, as any decision of the
Military Advocate General on whether or not to investigate or indict may be subject to his
review. Further review is available through Israel’s Supreme Court either as an appeals
court, or exercising judicial review over any decision of the Military Advocate General or
the civilian Attorney General. Such review can be – and frequently is – initiated by a
petition of any interested party, including non-governmental organisations, Palestinians,
and other non-citizens.
7. The Paper describes the structure and process of operation of these various elements of
Israel’s investigative system in some detail, particularly in order to correct
misrepresentations and inaccuracies in recent reports describing these mechanisms.2
8. Describing the application of these mechanisms to the Gaza Operation, the Paper notes
that the IDF to date has launched investigations of 150 separate incidents arising from the
Gaza Operation. A number of these were opened at the IDF’s own initiative. Others were
opened in response to complaints and reports from Palestinian civilians, local and
international non-governmental organisations, and U.N. and media reports.
9. Of the 150 incidents, so far 36 have been referred for criminal investigation. To date,
criminal investigators have taken evidence from almost 100 Palestinian complainants and
witnesses, along with approximately 500 IDF soldiers and commanders. The Paper
describes some of the challenges encountered in the conduct of the investigations,
including accessing evidence from battlefield situations and the need to make
arrangements, together with non-governmental organisations such as B’Tselem, to locate
and interview Palestinian witnesses. To address these challenges, special investigative
teams have been appointed and are currently investigating complaints arising from the
Gaza Operation.
10. The Paper relates to all investigations initiated following the Gaza Operation and does not
limit itself to those incidents in the Human Rights Council’s Report of the U.N. Fact-
Finding Mission on the Gaza Conflict, chaired by Justice Richard Goldstone (the “Human
Rights Council Fact-Finding Report” or “Report”). As Israel has clarified before, Israel
disagrees with the findings and recommendations of the Report, which reflect many
misunderstandings and fundamental mistakes with regard to the Gaza Operation, its
purposes, and Israel’s legal system. This Paper, however, is not intended as a
comprehensive response to the Report or a catalogue of the Report’s serious inaccuracies
and misstatements.
11. With respect to the incidents described in the Human Rights Council Fact-Finding Report,
the Paper notes that, prior to the publication of the Report, Israel was investigating 22 of
the 34 incidents it addresses. The remaining 12 incidents, none of which had previously
been brought to the attention of the Israeli authorities, were promptly referred for
2 Numerous assertions made by the Human Rights Council’s Report of the U.N. Fact-Finding Mission on
the Gaza Conflict – for example, that criminal investigations must await the completion of a military
command investigation or that all command investigators are within the direct chain of command – are
incorrect.

GAZA OPERATION INVESTIGATIONS: AN UPDATE

- iii -
investigation upon the Report’s publication. The Paper details the various stages of
investigation of these incidents. It also notes that in some cases, after reviewing all the
evidence available, the Military Advocate General has concluded that there was no basis
for criminal investigations. The Paper gives detailed accounts of a number of these
incidents.
12. The Paper also provides updated information regarding the special command
investigations initiated by the IDF Chief of General Staff after the conclusion of hostilities
in Gaza. As noted in The Operation in Gaza, shortly after the close of the Operation, the
Chief of General Staff appointed five senior field commanders to investigate the most
serious allegations of wrongdoing. The Chief of General Staff recently adopted a
recommendation by the Military Advocate General and initiated a sixth special
investigation, to consider additional allegations and to re-examine a complaint that a
command investigator could not substantiate.
13. The Paper provides updates regarding the findings of these investigations, which have, in
addition to prompting criminal inquiries, further command investigations, and disciplinary
proceedings, also yielded operational lessons resulting in changes already made or
underway.
14. The Paper concludes by recognizing the importance of conducting the investigative
process in a timely manner. At the same time, it notes the need to ensure that legal
processes are conducted thoroughly and with full due process, and in a manner
comparable with that of other states guided by a respect for the rule of law.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
- 1 -

I. INTRODUCTION
1. This Paper describes Israel’s process for investigating alleged violations of the Law of
Armed Conflict.1 It focuses in particular on investigations, legal proceedings, and lessons
learned in relation to the actions of the Israeli Defence Forces (IDF) in Gaza from 27
December 2008 through 18 January 2009 (the “Gaza Operation,” also known as
“Operation Cast Lead”).
2. The Gaza Operation represented a striking example of the complex and challenging
asymmetric conflicts in which states are increasingly finding themselves. In such
conflicts, states are forced to confront non-state actors which do not regard themselves as
bound by legal or humanitarian obligations. Such actors frequently abuse these principles
as a deliberate strategy, placing both their own civilian population and that of the
defending state at greater risk.
3. Faced with such challenges, and the acute real-time dilemmas created by militants
operating from within and behind civilian areas, the importance of legal guidance and full
compliance with legal and humanitarian obligations is paramount. At the international
level, this requires close dialogue and consultation between states confronting similar
threats in order to share experience and to consider how established principles of law can
best be applied in such complex circumstances. At the national level, it requires
continuous efforts to ensure that the principles of the Law of Armed Conflict are an
integral part of the training of soldiers and commanders, and that these principles guide
planning and operational decisions.
4. Beyond these measures, which are generally taken prior to and during operations, extreme
importance must also be given to reviewing the operation after the fact. This should
include the thorough investigation of all incidents that raise questions regarding the
appropriateness or lawfulness of measures used or decisions made. The complexity and
scale of such operations means that inevitably there are tragic instances, mistakes, and
errors of judgment.2 Tragic results, including civilian death and damage to property do
not necessarily mean that violations of international law have occurred. At the same time,
in instances in which evidence indicates that violations have taken place, this must be
fully investigated and prosecuted.
5. Israel is committed to ensuring that every such incident is fully and fairly investigated, to
ensure that lessons can be learned and that, if justified, criminal or disciplinary
proceedings initiated. To this end the IDF policy requires that every allegation of
wrongdoing be investigated, irrespective of its source. The 150 separate incidents

1 This Paper uses the term “Law of Armed Conflict” in its ordinary sense – describing the legal obligations
of parties to an armed conflict in the course of their military operations. The term “International
Humanitarian Law” is used by many commentators and countries as an interchangeable term. Israel, like
many other countries, prefers the term Law of Armed Conflict.
2 A harsh reminder for Israel of this reality is the fact that nearly half of its soldiers killed during the Gaza
Operation were killed by IDF fire mistakenly directed towards them.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
- 2 -
investigated following the Gaza Operation include, as detailed later in this Paper, not only
investigations opened as a result of Israel’s own concerns about certain incidents but also
investigations in response to complaints and reports from Palestinian residents, local and
international non-governmental organisations and UN and media reports.
6. Parts II and III of this Paper provide an overview of Israel’s mechanisms for investigating
alleged violations of the Law of Armed Conflict. These include mechanisms operating
within the IDF, but independently of the military chain of command as well as civilian
oversight mechanisms including the Attorney General and the Supreme Court sitting as
the High Court of Justice, with power of judicial review over every decision to prosecute
or not prosecute alleged offenders. Israel’s system of investigation and prosecution is
comparable to that of many democratic states confronting similar challenges, and in the
course of Part III reference is made to the systems other states have developed in this
regard.
7. Part IV focuses specifically on the investigation of complaints alleging violations of the
Law of Armed Conflict during the Gaza Operation and sets out where the investigations
opened currently stand. It also addresses some of the lessons that have already been
learned, including changes to operational procedures, as a result of the findings of the
investigations conducted so far.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
- 3 -
II. OVERVIEW OF ISRAEL’S SYSTEM FOR REVIEWING
MISCONDUCT ALLEGATIONS
8. Israel is a democracy, with a well-developed legal system. Even though it has confronted
constant and existential threats from neighbouring states and non-state actors, Israel stands
committed to the rule of law. As Israel’s Supreme Court has recognized:
“This is the destiny of a democracy – it does not see all means as
acceptable, and the ways of its enemies are not always open before it. A
democracy must sometimes fight with one hand tied behind its back.
Even so, a democracy has the upper hand. The rule of law and the liberty
of an individual constitute important components in its understanding of
security. At the end of the day, they strengthen its spirit and this strength
allows it to overcome its difficulties.”3
9. Under Israel’s Basic Law for the Military, the IDF is subordinate and accountable to the
civilian Government. Like any other governmental authority, it is subject to the rule of
law, including the applicable rules of international law. The Israeli system of justice holds
the Government, including the IDF, to its legal obligations.
10. First and foremost, Israel is committed to educating state agents – in this case, IDF
commanders and soldiers – of their duties and restrictions. This includes the widespread
dissemination of relevant Law of Armed Conflict principles across the ranks of the IDF.4
When violations of those principles are suspected, the Israeli justice system is designed
not only to mete out punishment and deter future violations but also to provide the
opportunity for redress to parties injured by state offences. The lawlessness of an
adversary, or the severity of the threat they pose, is not and cannot be an excuse for
unlawful or improper conduct.
11. To ensure compliance with the rule of law, including international law and the Law of
Armed Conflict, the IDF has established a system to investigate and pursue allegations of
misconduct. This system, like its counterparts in many states, includes multiple
components and layers of review – an internal military disciplinary procedure, a network
of military police, prosecutors, and courts, and a process for oversight by civilian
authorities and the judiciary. While individual components of this system – like any
governmental organisation – may not always work as intended, numerous checks and
balances ensure that the rule of law is upheld.
A. The Military Justice System
12. Israel’s military justice system, like those of many other democracies, is part of the state’s
military forces but is professionally independent. Israel’s Military Justice Law of 1955
established the Court Martial system and governs the investigation, indictment, and

3 Public Committee Against Torture in Israel v. State of Israel, HCJ 5100/94 ¶ 39 (6 September 1999).
4 This dissemination is particularly important since Israeli law forbids a soldier from complying with an
order that is manifestly unlawful.

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prosecution of those accused of misconduct. This military justice system deals with all
allegations of offences or violations of law committed by IDF personnel, including
allegations of improper conduct on the battlefield.
13. The military justice system includes three main components: the Military Advocate
General’s Corps, the Military Police Criminal Investigation Division (MPCID), and the
Military Courts.
(1) The Military Advocate General’s Corps
14. The Military Advocate General’s Corps is comprised of highly professional and trained
lawyers, and is responsible for enforcing the rule of law throughout the IDF.5 It also
provides advice on military, domestic, and international law to the Chief of General Staff
and all divisions of the IDF.6 The decisions and legal opinions of the Military Advocate
General are binding on all components of the military.7
15. Although he serves on the General Staff of the IDF, the Military Advocate General is
legally independent. IDF Supreme Command Orders state that in executing his powers
and authority, the Military Advocate General is “subject to no authority but the law.”8
Thus, the Chief of General Staff has no authority over him regarding legal matters. The
Military Advocate General is not subject to direct orders of any superior officers,
excluding the Chief of Staff in non-legal matters. As a former Military Advocate General
has explained, the Military Advocate General has a unique status in the military:
“Members of the Military Advocate are not subject to the functional
command orders of the command ranks that they serve, and the
decisions that they make are in their exclusive discretion. The MAG
is not subordinate to the Chief of Staff in respect of the exercise of his
powers and is not under any command whatsoever – de jure or de
facto.”9
16. The independence of the Military Advocate General extends to every officer within the
Military Advocate General’s Corps. Each is subordinate only to the Military Advocate
General and is not subject to direct orders by commanders outside the Corps.
17. The manner in which the Military Advocate General is appointed further evidences his
independence. Under the Military Justice Law, the Minister of Defence appoints the
Military Advocate General, upon a recommendation of the Chief of General Staff of the

5 Military Justice Law, § 178(2), (4); IDF Supreme Command Order 2.0613(2)(a).
6 Military Justice Law, § 178(1); IDF Supreme Command Order 2.0613(2)(b)(4).
7 See Avivit Atiyah v. Attorney General, HCJ 4723/96 ¶ 11 (29 July 1997).
8 IDF Supreme Command Order 2.0613(9)(A).
9 Menachem Finkelstein and Yifat Tomer, The Israeli Military Legal System – An Overview of the Current
Situation and a Glimpse Into the Future, 52 AIR FORCE L. REV. 137, 140 (2002) (footnotes omitted),
available at http://findarticles.com/p/articles/mi_m6007/is_2002_Wntr/ai_103136516/?tag=content;col1.

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IDF.10 Most other senior officers in the IDF are appointed directly by the Chief of General
Staff.
18. The Military Advocate General’s dual enforcement and advisory responsibilities parallel
those of chief military lawyers in other countries, such as the United Kingdom.11 The
units within the Military Advocate General’s Corps that issue legal guidance to the IDF
and that examine and prosecute alleged crimes by IDF forces are separate from one
another. The latter function of the Military Advocate General’s Corps is conducted by the
Chief Military Prosecutor, Military Advocates (who head regional and other prosecution
units), and military prosecutors (collectively, “the military prosecution”).
19. The military justice system empowers the Military Advocate General, the Chief Military
Prosecutor, and the Military Advocates to direct the prosecution of soldiers for military
offences identified in the Military Justice Law (such as absence without leave, conduct
unbecoming an officer, and pillage), as well as criminal offences under Israel’s general
Penal Law.12 When the evidence establishes a reasonable likelihood that a crime or
infraction has been committed, a Military Advocate may order a prosecutor to file an
indictment in the Military Courts or order a commander to hold a disciplinary hearing.
Like any criminal proceeding, this process requires military prosecutors to examine the
evidence carefully and to file an indictment only if there is sufficient evidence.13
20. In 2007, the Military Advocate General established a specialized unit within the military
prosecution, the Office of the Military Advocate for Operational Affairs, to oversee all
investigations and to conduct all prosecutions of alleged operational misconduct –
particularly, alleged misconduct by IDF soldiers against Palestinian civilians during
military operations. The mandate of the Office includes investigation and prosecution of
alleged violations of the Law of Armed Conflict. The prosecutors assigned specifically to
the Office have special training and expertise to address the unique difficulties in
investigating and trying these kinds of cases. When necessary, prosecutors from other
units supplement this unit.
(2) The Military Police Criminal Investigation Division
(MPCID)
21. The MPCID is the primary entity within the IDF for investigating alleged crimes
committed by soldiers. It has hundreds of trained investigators, including reservists, who
are posted in different regional and specialized units. The training course of each
investigator lasts about six months, including legal studies at the IDF’s School of Military
Law, which is under the authority of the Military Advocate General. After concluding this

10 Military Justice Law, § 177(a).
11 See Part III.E below.
12 Military Justice Law, § 280.
13 Under Israeli Supreme Court precedent, a criminal indictment may only be filed where a “reasonable
chance to convict” exists in light of all evidence collected, including exculpatory evidence. See, e.g.,
Yahav v. State Attorney, HCJ 2534/97 (30 June 1997).

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training, each soldier is required to pass an examination conducted by a Military Advocate
before he or she is authorized to serve as an MPCID investigator.14
22. The scope of the MPCID’s activities is substantial. In the last five years, the unit opened
almost 3,300 investigations on average each year and collected more than 11,000
testimonies. The MPCID investigates an average of 5,500 suspects and arrests an average
of 1,400 people per year. In 2009, seven percent of these investigations involved
Palestinian complainants.
23. Criminal investigators who handle complaints by Palestinians undergo specialized
training, including training in international law. Some of these investigators are Arabic
speakers, while others use Arabic interpreters, who participate in interviews with
Palestinian complainants and witnesses.
24. As necessary, MPCID investigators consult with prosecutors from the Military Advocate
General’s Corps regarding the proper handling of an investigation. In addition, the
Military Advocate General appointed a legal officer from the Military Advocate General’s
Corps to serve as the legal adviser of the MPCID. The legal adviser works to ensure that
legal policy is assimilated in MPCID standing orders and regulations.
25. At the conclusion of an investigation, the MPCID reports to the military prosecution and
transfers the file for review by a prosecutor. In many cases, the military prosecution
returns the file to MPCID with concrete instructions to conduct a supplemental
investigation. If no supplement is needed, a Military Advocate or the Chief Military
Prosecutor decides whether to initiate criminal or disciplinary proceedings, based on the
evidence available and the nature of the alleged misconduct. In cases of heightened
complexity or sensitivity, this decision is made in consultation with the Military Advocate
General.
(3) The Military Courts
26. The Military Courts adjudicate charges against IDF soldiers for military and other
criminal offences through a Court Martial. The Courts, which include the Military Court
of Appeals and several regional courts, are composed of both professional military judges
and regular officers (who must have no connection to the cases they hear). Every Court
Martial must include at least one professional military judge, and professionals must
comprise a majority of any appellate panel.15 The Military Justice Law provides that “[i]n
judicial matters, a military judge is not subject to any authority save that of the law, and is
not subject in any way to the authority of his commanders.”16

14 Military Justice Law, § 252(A)(3).
15 Military Justice Law, §§ 202, 216.
16 Military Justice Law, § 184. The Israeli Supreme Court has noted that the participation of regular
officers in Courts Martial serves “to emphasize the common responsibility of all of those who serve in the
military regarding what happens in the military.” Katz v. President of the Court Martial, Central
Jurisdictional District, HCJ 142/79 ¶ 6 (10 June 1979).

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27. Military commanders do not appoint professional military judges. Rather, an independent
commission comprised of the Minister of Defence, the Minister of Justice, members of the
Israeli Supreme Court and the Military Court of Appeals, and a representative of the
Israeli Bar Association (among others), makes the appointments.17 Professional military
judges serve in a separate military courts unit, headed by the President of the Military
Court of Appeals. The cadre of professional military judges includes many civilian
judges, who may preside over military proceedings as part of their military reservist
duties.18 Professional military judges can be removed only for gross misconduct, under a
special procedure.
28. Even though the Military Courts are located within military bases, their proceedings are
generally open to the public. Military Courts may conduct proceedings in camera only in
limited circumstances, such as when an open proceeding would jeopardize the security of
the state.19 The news media can and does cover Military Court proceedings, and many
judgments of the Military Courts are published on the official website of the Israeli
judiciary, as well as on various public online databases. In general, the rules of evidence
in the Military Courts are practically identical to the rules applicable in civilian criminal
proceedings.20
29. Prosecutors have the right to appeal a sentence they regard as too lenient. Traditionally,
the Military Courts have dealt sternly with soldiers convicted of offences against civilians.
For example, in Military Prosecutor v. Sgt Ilin, the Military Court of Appeals increased
the sentence of a soldier convicted of looting. The court observed:
“A soldier committing prohibited acts during armed conflict inflicts
injury upon the human dignity of the conquered as well as upon the
humanity of the conqueror. . . . It is clear therefore that the thunder of
war and the heat of the battle actually demand reinforcement and
amplification of the voice of morality . . . .”21
30. Likewise, in Military Prosecutor v. Corp. Lior and Corp. Roi, the Military Court of
Appeals raised the sentences of two soldiers serving in the Military Police who were
convicted of assaulting Palestinian detainees. The court concluded:
“The respondents grossly violated their obligations as human beings,
citizens of the State of Israel, as soldiers and as police officers. The
respondents are part of the Israeli society, soldiers in the IDF and
members of the Military Police. In their actions, they harmed each and

17 See Military Justice Law, § 187(a).
18 See Military Justice Law, §§ 185(b), 187C.
19 See Military Justice Law, § 324.
20 See Military Justice Law, § 476 (establishing that evidence law applicable to criminal proceedings in
civilian courts shall apply in Military Courts unless a specific provision states differently). Rules of
evidence that are unique to the Military Courts must be interpreted in light of similar provisions and the
principles of general evidence law. See Isascharov v. Military Prosecutor General, Cr.A. 5121/98 (4 May
2006).
21 Military Prosecutor v. Sgt. Ilin, C/62/03 ¶ E (23 May 2003).

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every person who is a part of these groups. The damage of their actions
is not limited to the ugly act they committed. It radiates in a circular
pattern – similar to a rock thrown down a well – on its entire
surrounding.”22
B. Civilian Supervision Over the Military Justice System
(1) Attorney General of Israel
31. The decision of the Military Advocate General whether or not to open a criminal
investigation, as well as his decision whether or not to file an indictment, may be subject
to further review by the Attorney General of the State of Israel, an independent figure of
high authority.
32. For example, in Avivit Atiyah v. Attorney General, the Israeli Supreme Court ruled that the
Attorney General could order the Military Advocate General’s Corps to change its
position concerning whether to file a criminal indictment. The Court ruling has been
interpreted as follows:
“[T]he power of the Attorney General to impose his opinion on the MAG
will, in those cases, include the cancellation of and the filing of a charge
in a court-martial. In other words, even if the MAG thinks, in these
cases, that a charge ought not be filed, and the matter is brought before
the Attorney General . . . the Attorney General shall be authorized to
decide that a charge should be filed, and his decision shall prevail.”23
33. A complainant or non-governmental organisation may trigger the review of the Attorney
General by simply sending a letter to the Attorney General, requesting further review of
the matter.
(2) Supreme Court of Israel
34. Civilian judicial review of the military system occurs in two ways. First, the Supreme
Court of Israel has discretion to hear direct appeals from judgments of the Military Court
of Appeals “concerning an important, difficult, or innovative legal question.”24 Second,
the Supreme Court, sitting as the High Court of Justice, can review and reverse a decision
of the Military Advocate General, the military prosecution, and/or the Attorney General
whether to investigate or file a criminal indictment concerning alleged misconduct by
soldiers.
35. Any interested party (including non-governmental organisations) or any person (including
non-citizens and non-residents) affected or potentially affected by a government action
can petition the Supreme Court, residing as the High Court of Justice, on a claim that the

22 Military Prosecutor v. Corp. Lior and Corp. Roi, C/128/03 and C/146/03 ¶ 17 (21 August 2003).
23 Finkelstein and Tomer, supra, at 163 (referring to precedent set in Avivit Atiyah v. Attorney General,
HCJ 4723/96 (29 July 1997)).
24 Military Justice Law, § 440I(a),(b).

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action is ultra vires, unlawful, or substantially unreasonable. When warranted, the
Supreme Court can enjoin the Government or grant other relief. Under Israel’s legal
system, a ruling of the Supreme Court against the IDF or another government agency is
final and binding.
36. Palestinian residents, as well as non-governmental organisations or persons representing
their interests, have filed successful petitions challenging the Military Advocate General’s
exercise of prosecutorial discretion. Some examples include:
o The Supreme Court reversed the Military Advocate General’s decision not to file
criminal charges against a high-ranking field commander, and the commander
ultimately was convicted on those charges.25
o During a Supreme Court hearing, the Military Advocate General’s Corps consented to
opening a military criminal investigation into an incident that had only previously
been examined by a command investigation.26
o The Supreme Court intervened in the Military Advocate General’s decision to indict a
soldier and a commander for “unbecoming conduct” (rather than more serious
offences), in connection with the alleged firing of a rubber bullet at the feet of a
detainee.27 Following the judgment, the Military Advocate General’s Corps amended
the indictment, charging the commander and the soldier with more serious offences.28
37. In other cases, the Supreme Court has affirmed the Military Advocate General’s decisions
not to file charges, corroborating the Court’s authority to approve, as well as disapprove,
those decisions.29
38. As noted above, the Court has enforced the obligation of the state and the IDF to abide by
applicable law (including international law) and humanitarian standards, notwithstanding
the reality and constant threat of terrorist attacks.30 For example, the Court held in 2006:
25 See Jamal Abed al Kader Mahmoud Zofnan v. Military Advocate General, HCJ 425/89 (27 December
1989).

26 See Brian Avery v. Military Advocate General, HCJ 11343/04 (1 March 2005).
27 Ashraf Abu Rahma v. Military Advocate General, HCJ 7195/08 (1 July 2009) (“The military justice
system, which is in charge of implementing the IDF’s values of conduct, must send out a determined
message of consistent and decisive defence of the basic values of the society and the army, and of
uncompromising enforcement in all levels – educational, commanding authority and punitive – of the
fundamental principles that are shared by the Israeli society and the Israeli army and give them their
ethical and humane character.”).
28 The amended indictment charged the commander with the offence of threats under Section 192 of
Israel’s Penal Law and the soldier with the crime of illegal use of a firearm in accordance with Section 85
of the Military Justice Law. Both were also charged with the offence of conduct unbecoming an officer.
The case is pending in Military Court.
29 See, e.g., Iman Atrash v. Military Advocate General, HCJ 10682/06 (18 June 2007).
30 Official English translations of over 25 cases that address this issue are available at the website of
Israel’s Supreme Court, http://elyon1.court.gov.il/VerdictsSearch/EnglishStaticVerdicts.html. See, e.g.,
Public Committee Against Torture in Israel v. State of Israel, HCJ 5100/94 (6 September 1999); Iad Ashak
Mahmud Marab v. IDF Commander in West Bank, HCJ 3239/02 (6 February 2003); Beit Sourik Village
[Footnote continued on next page]

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“‘Israel is not an isolated island. It is a member of an international system.’ . . .
The combat activities of the IDF are not conducted in a legal void. There are
legal norms – some from customary international law, some from international
law entrenched in conventions to which Israel is party, and some in the
fundamental principles of Israeli law – which determine rules about how
combat activities should be conducted.”31
39. The Israeli Supreme Court has demonstrated that it can and will intercede in actual
hostilities between the IDF and Palestinian terrorist organisations – including the Gaza
Operation. In January 2009, while IDF forces were still fighting Hamas in Gaza, the
Court reviewed two petitions by human rights groups challenging the IDF’s efforts to
satisfy humanitarian obligations to Palestinian civilians.32 The Court “endeavour[ed] to
examine the claims in real time, so that it may grant effective relief or arrive at an agreed
settlement.”33 In doing so, the President of the Court affirmed the Court’s jurisdiction to
hear such petitions even in the midst of combat:
“Cases in which the court examines the legality of military operations
while they are happening are not uncommon occurrences, in view of the
reality of our lives in which we are constantly confronting terrorism that
is directed against the civilian population of Israel, and in view of the
need to respond to it while discharging the duties imposed by law even in
times of combat. . . . [I]t is the role of the court, even in times of combat,
to determine whether within the framework of the combat operations the
obligation to act in accordance with legal guidelines – both within the
context of Israeli law and within the context of international
humanitarian law – is being upheld.”34
40. Israel’s Supreme Court has earned international respect for its jurisprudence and its
independence in enforcing international law. Its rulings balancing security and individual
rights are highly regarded by jurists and academic scholars of international law, and have

[Footnote continued from previous page]
Council v. State of Israel, HCJ 2056/04 (30 June 2004); Zaharan Yunis Muhammad Mara’aba v. Prime
Minister of Israel, HCJ 7957/04 (15 September 2005); Ahmad Issa Abdalla Yassin, Bil’in Village Council
Chairman v. State of Israel, HCJ 8414/05 (15 December 2008); Public Committee Against Torture in
Israel v. State of Israel, HCJ 769/02 (14 December 2006); Adalah – The Legal Center for Arab Minority
Rights in Israel v. GOC Central Command, IDF, HCJ 3799/02 (6 October 2005).
31 Public Committee Against Torture in Israel v. State of Israel, HCJ 769/02 ¶ 17 (14 December 2006)
(quoting Physicians for Human Rights v. Commander of IDF Forces in Gaza, HCJ 4764/04 (30 May
2004)).
32 Physicians for Human Rights v. Prime Minister of Israel, HCJ 201/09 and 248/09 (19 January 2009).
After examining the steps taken by the IDF and high command authorities, the Court determined that they
had indeed complied with international law.
33 Id. ¶ 13.
34 Id. ¶ 12. Also during the Gaza Operation, the Supreme Court considered a petition from foreign
journalists seeking to enter Gaza at military checkpoints. Foreign Press Association in Israel v. OC
Southern Command, HCJ 9910/08 (2 January 2009). The Court affirmed that “the freedom of speech and
the freedom of the press . . . have an all the more special importance” during armed hostilities, id. ¶ 5, but
the Gaza Operation ended before the dispute was completely resolved. Foreign Press Association in
Israel v. OC Southern Command, HCJ 643/09 (25 January 2009).

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been cited favourably by foreign courts, including the Supreme Court of Canada, the
House of Lords in the United Kingdom, and the European Court of Justice.35
35 See, e.g., Application Under S. 83.28 of Criminal Code, 2004 SCC 42 ¶ 7 (Supreme Court of Canada
2004) (citing the “eloquent” statements of Israel’s Supreme Court on the importance of responding to
terrorism within the rule of law); Suresh v. Canada, [2002] 1 S.C.R. 3, 2002 SCC (“we note that the
Supreme Court of Israel sitting as the High Court of Justice and the House of Lords have rejected torture
as a legitimate tool to use in combating terrorism and protecting national security”); A and Others v.
Secretary of State for Home Department, 2 A.C. 221 ¶ 150 (U.K. House of Lords 2005) (emphasizing
importance of the United Kingdom “retain[ing] the moral high ground which an open democratic society
enjoys,” and thereby “uphold[ing] the values encapsulated in the judgment of the Supreme Court of Israel
in Public Committee Against Torture in Israel v. Israel . . . [that] ‘[a]lthough a democracy must often fight
with one hand tied behind its back, it nonetheless has the upper hand’”) (citation omitted); Kadi v. Council
of European Union, 3 C.M.L.R. 41 ¶ AG 45 (European Court of Justice 2008) (quoting former President
of Supreme Court of Israel regarding importance of judicial oversight of political decisions: “It is when the
cannons roar that we especially need the laws . . . . It is an expression of the difference between a
democratic state fighting for its life and the fighting of terrorists rising up against it. The state fights in the
name of the law and in the name of upholding the law. The terrorists fight against the law, while violating
it. The war against terrorism is also law’s war against those who rise up against it.”).

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III. THE INVESTIGATION OF ALLEGED VIOLATIONS OF
THE LAW OF ARMED CONFLICT
41. The consistent policy of the IDF has been to investigate alleged violations of the Law of
Armed Conflict, regardless of the source of the allegations, and to prosecute where there is
credible evidence that a violation has occurred. This policy reflects a commitment to
resolve complaints against IDF personnel fairly, impartially, and effectively. Israel’s
Attorney General has affirmed this policy and it has been presented to the High Court of
Justice for review.
42. The effectiveness of Israel’s justice system has been acknowledged by international
bodies. For example, the Criminal Chamber of the National Court of Spain (Audiencia
Nacional) decided by a wide margin last year to discontinue a Spanish investigation into
alleged IDF war crimes in the Gaza Strip. The proceedings concerned a 2002 incident
during which the IDF killed the head of Hamas’s military wing but also a number of
civilians during an air strike. A Spanish judge had opened an inquiry into the matter
pursuant to Spain’s universal jurisdiction statute.
43. In closing the investigation, the Criminal Chamber of the National Court of Spain
emphasised Israel’s ability fully and fairly to investigate the charges itself. Contrary to
the allegations raised in the Human Rights Council Fact-Finding Report, the Court held
that Israeli procedures and precedents with regard to defensive strikes, and the military,
civilian, and judicial review in Israel of the incident, comport with principles of
international law. The court stated:
“[D]isputing the impartiality and organic and functional separation from
the Executive of the Israeli Military Advocate General, the Attorney
General of the State of Israel and the Investigation Commission
appointed by the Israeli Government involves ignoring the existence of a
social and democratic state with rule of law, where the members of the
Executive and the Judiciary in question are subject to the rule of law. On
the basis of those premises, there can be no doubt whatsoever with regard
to the exercise of pertinent criminal actions in the event that the existence
of any criminally relevant conduct on the part of the individuals who
ordered, planned and carried out the bomb attack should come to light in
the course of the investigations performed.”36
44. In general, the investigation policy of the IDF regarding alleged violations of the Law of
Armed Conflict is as follows:

36 Unofficial translation of Decision no. 1/2009, 17 July 2009 (plenary), of the National Criminal Court of
Appeals (“Sala de lo Penal de la Audiencia Nacional”), at 24, regarding Preliminary Criminal Proceedings
no. 154/2008 of the Central Investigation Court no. 4. See also Appeal of the Coordinating Prosecutor
(Pedro Martinez Torrijos), 6 May 2009, from the Order of the Audiencia Nacional de Madrid, 4 May 2009,
in Preliminary Proceedings Case No. 157/2008 (emphasizing that Israel’s investigatory system, with
review by Military Advocate General, Attorney General, and Supreme Court, “fully satisfy” the
requirements of “an independent and impartial system of justice”).

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o The Military Advocate General reviews complaints from a variety of sources.
o The Military Advocate General refers individual complaints for a command
investigation or, when there is an allegation of per se criminal behaviour, for a
criminal investigation.
o For those complaints referred for a command investigation, the Military Advocate
General reviews the record and findings of the command investigation, along with
other available material, to determine whether to recommend disciplinary proceedings
and whether there is a suspicion of a criminal act – in which case the complaint is
referred for a criminal investigation.
o Following a criminal investigation, the Military Advocate General reviews the entire
evidentiary record to determine whether or not to file an indictment or to recommend
disciplinary proceedings.
45. This process is illustrated in the following diagram:
A. Sources of Complaints
46. The IDF investigates alleged violations of the Law of Armed Conflict in essentially the
same way it investigates other allegations of criminal misconduct. When a complaint
raises a reasonable suspicion that a crime has been committed, the IDF opens a criminal
investigation. If the investigation yields sufficient evidence to support the complaint, the

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IDF initiates either criminal or disciplinary proceedings, depending on the severity of the
findings.
47. Information on alleged misconduct of soldiers reaches the IDF authorities in various ways,
including:
o formal or informal complaints by alleged victims themselves or family members;
o complaints by commanders or soldiers who witnessed an incident;
o reports by non-governmental organisations and the news media;
o complaints or letters by non-governmental organisations, journalists, embassies, or
international bodies; and
o complaints forwarded to or filed directly with the Military Advocate General’s Corps
by the Israeli Police and other law enforcement agencies.
48. Any person may file a complaint with the Military Police at any civilian police station
regarding alleged misconduct by IDF soldiers. Gaza residents can file complaints directly
in writing (in Hebrew, Arabic, and English), through a non-governmental organisation
acting on their behalf, or through the Military Liaison that works directly with the
Palestinian civilian population.
49. In addition, the IDF independently identifies incidents that warrant further inquiry,
including allegations of military misconduct reported in the news media and by other
sources. The Ministry of Justice also monitors such reports and brings allegations to the
attention of the relevant bodies. Regardless of the source, the IDF evaluates each
complaint based on the circumstances of the case and the evidence available.
B. Military Advocate General Screening and Referral
50. The Military Advocate General and the military prosecution play a major role in the IDF’s
system of investigating alleged violations of the Law of Armed Conflict. Such
investigations are considered extremely important, and the Military Advocate General is
personally involved in the examination of many cases. The military prosecution receives
all complaints of IDF misconduct for screening and review, and directly refers any
complaint that alleges per se criminal behaviour – including allegations of maltreatment of
detainees, the use of civilians as human shields, intentional targeting of civilians and
looting – to the MPCID for criminal investigation.
51. Other complaints – for example, allegations of civilian deaths due to artillery shelling or
the destruction of civilian property on the battlefield – may or may not constitute a
criminal offence, depending on the specific circumstances. Where hostilities occur in a
heavily populated area, and where enemy combatants deliberately seek to blend in with
the populace, civilian casualties, unfortunately, are inevitable. Under the Law of Armed
Conflict, the occurrence of damage to civilian property, and of injury, or even death of
civilians, during an operational activity does not necessarily indicate nor even imply

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criminal misconduct.37 Rather, criminal responsibility for violation of the Law of Armed
Conflict requires evidence that military personnel intended to harm civilians or clearly
foresaw that excessive harm to civilians would result, when balanced against the
anticipated military advantage.38
52. Therefore, as to this second class of complaints, before initiating a criminal investigation,
the Military Advocate General must first determine whether the evidence raises a
suspicion of criminal activity and warrants a referral to MPCID. As discussed below, in
making his decision, the Military Advocate General evaluates the complaint itself, which
may include first-hand accounts from complainants and witnesses, along with the record
of evidence developed during military command investigations (also known as operational
debriefings) and other materials.
53. Some of Israel’s critics have misunderstood the nature of these dual investigative tracks
and incorrectly assumed that all complaints first must proceed through the command
investigation stage, thereby delaying criminal proceedings for months. This premise – a
central premise of the Human Rights Council Fact-Finding Report39 – is wrong. The
Military Advocate General and the military prosecution have full authority to initiate, and
do initiate, direct criminal investigations of those complaints alleging conduct that is

37 See, e.g., Open Letter from Luis Moreno-Ocampo, Chief Prosecutor of International Criminal Court,
“Allegations concerning War Crimes” at 4-5 (9 February 2006), available at http://www2.icccpi.
int/NR/rdonlyres/F596D08D-D810-43A2-99BB-B899B9C5BCD2/277422/OTP_letter_to_senders_re_
Iraq_9_February_2006.pdf (“Under international humanitarian law and the Rome Statute, the death of
civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war
crime.”); Kenneth Watkin, Assessing Proportionality: Moral Complexity and Legal Rules, in YEARBOOK
OF INTERNATIONAL HUMANITARIAN LAW 3, 9 (Timothy L.H. McCormack ed., 2005) (“[A]lthough
civilians are not to be directly made the object of an attack, humanitarian law accepts that they may be
killed or civilian property may be damaged as a result of an attack on a military objective.”); W. Hays
Parks, Air War and the Law of War, 32 A.F. L. REV. 1, 4 (1990) (“Within both the Just War Tradition and
the law of war, it has always been permissible to attack combatants even though some noncombatants may
be injured or killed . . . .”); Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare,
2 YALE HUM. RTS & DEV. L.J. 143, 150 (1999) (noting that international legal doctrine of proportionality
“operates in scenarios in which incidental injury and collateral damage are the foreseeable, albeit
undesired, result of attack on a legitimate target”); see also NATO BOMBINGS: FINAL REPORT TO THE
ICTY PROSECUTOR ¶ 51 (“Collateral casualties to civilians and collateral damage to civilian objects can
occur for a variety of reasons.”).
38 See, e.g., Yves Sandoz, Christophe Swinarski & Bruno Zimmermann, Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions 12 June 1949 (International Committee of the Red
Cross, 1987), art. 51(2), ¶ 1934 (“[I]n relation to criminal law the Protocol requires intent and, moreover,
with regard to indiscriminate attacks, the element of prior knowledge of the predictable result.”); Rüdiger
Wolfrum & Dieter Fleck, Enforcement of International Humanitarian Law, in THE HANDBOOK OF
INTERNATIONAL HUMANITARIAN LAW 675, 697 (Dieter Fleck ed., 2d ed. 2008) (“The prerequisite for a
grave breach is intent; the attack must be intentionally directed at the civilian population or individual
civilians, and the intent must embrace physical consequences.”). The ICTY has found that for an attack to
qualify as a war crime, it “must have been conducted intentionally in the knowledge, or when it was
impossible not to know, that civilians or civilian property were being targeted.” Prosecutor v. Galić, Case
No. IT-98-29-T, Judgment and Opinion ¶ 42 (5 December 2003), quoted in Watkin, supra, at 38.
39 See, e.g., Human Rights Council Fact-Finding Report ¶¶ 1820, 1831 (criticizing Israel’s investigative
process for “undue delay” because “proper criminal investigations can start only after the ‘operational
debriefing’ is over”); see also id. ¶¶ 121, 1798, 1830.

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clearly criminal in nature. For example, in the case of the alleged firing of a rubber bullets
at the feet of a detainee, the Military Advocate General conducted a direct criminal
investigation immediately after the incident was published in the media, and filed an
indictment within two weeks.40 With respect to other complaints, those that are first
subject to command investigations, there is no requirement that the Military Advocate
General or military prosecution await a final report from the command investigator before
making a criminal referral. At any point when there is a reasonable suspicion of criminal
misconduct, the military prosecution may launch a criminal investigation.41
C. Command Investigations
54. Under the Military Justice Law, a command investigation is an “inquiry held in the army,
in accordance with IDF orders, regarding an event which occurred during training or
operational activity, or in relation to them.”42 The longstanding practice of the IDF, and
many other militaries, is to conduct a command investigation in the field following any
kind of military action. Such an investigation normally focuses on examining the
performance of the forces and identifying aspects of an operation to preserve and to
improve, but may also focus on specific problems that occurred. By undertaking this
review, the IDF seeks to reduce future operational errors, including those potentially
resulting in civilian casualties.
55. But routine post-operation investigations are not the only inquiries conducted by the IDF.
In addition to these inquiries, when a complaint is filed with the Military Advocate
General which does not allege per se criminal behaviour, the Military Advocate General
requests a command investigation, to compile an evidentiary record and make a
preliminary assessment of the complaint. If warranted, the command investigation will
also recommend remedial measures, such as disciplinary action (which can result in prison
sentences).43
56. Under IDF Supreme Command Order 2.0702, the command investigator must transmit the
complete record of a command investigation to the Military Advocate General’s Corps

40 Ashraf Abu Rahma v. Military Advocate General, HCJ 7195/08 (1 July 2009). This case was discussed
in Part II.B.2.
41 The Human Rights Council Fact-Finding Report wrongly concluded that “in practice criminal
investigations do not begin before six months after the events in question.” Human Rights Council Fact-
Finding Report ¶ 1830. As discussed below, the Military Advocate General directly initiated more than
two dozen criminal investigations related to the Gaza Operation – all within six months. In fact, the
Human Rights Council Fact-Finding Report discusses one of these investigations, which was completed
less than two months after the Gaza Operation ended. Id. ¶ 1780; see “Military Police Investigation
Concerning Statements Made at the Rabin Center: Based on Hearsay,” IDF Press Release (30 March
2009), available at http://dover.idf.il/IDF/English/Press+Releases/09/03/3001.htm.
42 Military Justice Law, § 539A(A).
43 The process of internal disciplinary action in the IDF is limited to less serious offenses (those with a
maximum sentence of three years or less). The Military Advocate General’s Corps may approve, change,
or cancel a disciplinary judgment or punishment. Notwithstanding a disciplinary judgment, the Military
Advocate General has the authority to approve a military indictment for the same offense. See Military
Justice Law, § 171(B).

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upon request or automatically in certain types of cases – for example, whenever a civilian
has been killed or seriously injured. The investigation of specific complaints as part of a
command investigation thus serves not merely as a means to improve military
performance but also as a preliminary inquiry on behalf of the Military Advocate General
into potential military misconduct.
57. Further, the IDF’s Chief of General Staff has the authority to initiate special (sometimes
called “expert”) command investigations for exceptional or complex cases. This type of
investigation is conducted by a commanding officer who is outside the relevant chain of
command. As with other command investigations, the results of a special command
investigation must be transmitted to the Military Advocate General’s Corps in appropriate
circumstances – for example, whenever a civilian has been killed or seriously injured.
58. IDF Supreme Command Order 2.0702 provides requirements for command investigations,
including:
o “The command investigator shall not be limited by the rules of evidence.”
o “A soldier who is inquired in the course of a command investigation shall not be
represented by a lawyer.”
o “A soldier cannot refuse a demand by a command investigator to provide information,
by testimony of other manner, even if he is entitled not to provide it to an investigating
entity, since it might incriminate him.”44
59. IDF Supreme Command Order 2.0702 further requires that all evidence obtained during a
command investigation must be preserved. Specifically, “[m]aterials of a command
investigation, including exhibits, maps, photos, and so on, shall be preserved by the
commanding headquarters superior to the investigator.” Thus, the Military Advocate
General has the benefit of the entire record of a command investigation in those cases that
are subject to review.45
60. Contrary to some criticisms – including those of the Human Rights Council Fact-Finding
Report – command investigations do not substitute de jure or de facto for criminal

44 A statement made by a soldier during a command investigation, like all the evidence gathered, is
preserved as part of the record. The Military Advocate General may use such a statement as a reason to
launch a criminal investigation. A statement may also form the basis for a disciplinary proceeding.
However, as in other countries that recognize the right against self-incrimination, compulsory soldier
statements during a command investigation are not admissible in court except when a soldier is charged
with presenting false information or obstructing an investigation.
45 Ignoring these IDF regulations and without citing any evidence, the Human Rights Council Fact-Finding
Report falsely claims that command investigations “destroy the scene of the crime,” making criminal
investigations “nearly impossible.” Human Rights Council Fact-Finding Report ¶ 1817; see also id. ¶
1830 (noting that “evidence may be corrupted” by the time a criminal investigation is launched). While
some investigations have experienced delays, due to the large number of complaints submitted after the
Gaza Operation, the suggestion that evidence has been lost or destroyed as a result of the process of
command investigations has no basis in fact.

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investigations conducted by trained investigators.46 They serve as a means of compiling
an evidentiary record for the Military Advocate General, and enabling him, from his
central vantage point, to determine whether there is a factual basis to open a criminal
investigation. The Military Advocate General’s review, not the command investigation,
lies at the heart of the system. Many military systems rely on preliminary reviews, similar
to command investigations, to assess complaints of soldier misconduct and to identify
those that actually raise suspicions of criminal behaviour.47
61. The Israeli Supreme Court has recognized that command investigations are “usually the
most appropriate way to investigate an event that occurred during the course of an
operational activity.”48 Specifically, the Court observed that a command investigation is:
“usually conducted close to the time of the event, when it is still fresh in
the memory of those that take part in it. It is performed in a direct and
non-cumbersome manner. It is an integral part of the whole operational
activity and it is well rooted into the operational experience in the IDF
since its very beginning.”49
62. At the conclusion of a command investigation, the investigator submits a written report of
the findings, along with any recommendations, to the commander who commissioned the
investigation and up the chain of command. As noted, the final report, along with any
evidence collected, must also be transmitted to the Military Advocate General’s Corps
upon request or automatically in certain instances – for example, whenever a civilian has
been killed or seriously injured.
D. Criminal Investigations and Prosecutions
63. The MPCID conducts criminal investigations, including investigations of complaints
alleging that soldiers violated the Law of Armed Conflict. As noted above, the Military
Prosecution automatically refers any complaint alleging per se criminal conduct to the
MPCID for direct criminal investigation. With respect to other complaints, the Military
Advocate General initiates a criminal investigation once he finds a reasonable suspicion of
criminal activity.50
64. To make this determination, the Military Prosecution generally relies on the complaint
itself (including any statements submitted by the complainant or witnesses) together with
46 See, e.g., Human Rights Council Fact-Finding Report ¶ 1819 (faulting command investigations for
falling short of “established methods of criminal investigations such as visits to the crime scene, interviews
with witnesses and victims, and assessment by reference to established legal standards”).

47 See Part III.E below.
48 Mor Haim v. Israeli Defence Forces, HCJ 6208/96 (16 September 1996). This case dealt with the
appropriate manner for investigating the circumstances of the death of a soldier during an IDF operation.
49 Id.
50 When a command investigation precedes a criminal investigation, the Military Advocate General has to
consult with an officer ranked Major or above. Nevertheless, the Military Advocate General alone has the
authority to decide whether to initiate a criminal investigation and no officer has the authority to veto his
decision.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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the report and record of a command investigation. In many cases, the Military
Prosecution reviews additional materials, such as reports by non-governmental
organisations and media accounts. The Military Prosecution can – and in many instances
does – request additional information from the command investigator, including a
supplemental investigation.
65. The Military Prosecution notifies the complainant of his decision whether to open a
criminal investigation, including an explanation of the reasons. As noted, the complainant
can appeal the decision both to the Attorney General and the Supreme Court.
66. When a criminal investigation is opened, the MPCID consults as needed with the relevant
Military Advocate (in cases involving alleged operational misconduct against Palestinians,
the Military Advocate for Operational Affairs) regarding professional and legal questions.
67. When the MPCID completes its criminal investigation, the military prosecution reviews
the evidence and decides whether to file an indictment. The military prosecution exercises
prosecutorial discretion according to Israeli law – similar to any prosecutor in Israel or
other common law states. For example, the military prosecution will file an indictment
only if it determines that there is sufficient evidence to obtain a conviction. A
complainant retains the right to appeal a decision of the military prosecution. The military
prosecution’s exercise of prosecutorial discretion in individual cases is subject to review
by both the Attorney General and the Supreme Court.
68. From January 2002 through December 2008, there were 1,467 criminal investigations into
alleged misconduct by IDF soldiers, leading to 140 indictments against soldiers for
alleged crimes committed against the Palestinian population. Of these indictments, as of
December 2008, 103 defendants were convicted and ten cases are still pending. During
2009, 236 criminal investigations were opened, and 14 indictments were filed against
officers and soldiers.
69. Historically, the Military Advocate General’s Corps has aggressively prosecuted cases of
soldier misconduct toward Palestinian civilians. For example, last year the military
prosecution indicted a Lieutenant and a Sergeant for the improper use of force while
questioning civilians during a military operation in the West Bank. A military Court
Martial convicted the Lieutenant of aggravated assault, for both his own use of force as
well as the use of force by his subordinate.51
70. In Lt. Col. Geva v. Chief Military Prosecutor, the Military Advocate General’s Corps filed
an appeal to seek a harsher sentence for a senior officer convicted of threatening the child
of a suspected terrorist and using a civilian as a human shield. The Military Court of
Appeals sided with the prosecution:
“The requirement of ‘personal example’ by IDF commanders has been,
from time immemorial, at the heart of military leadership which adopted

51 Military Prosecutor v. Lt. A.M. and Sgt. A.G., C/125+126/09. The Lieutenant is awaiting his sentencing
hearing.

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the heritage of Gideon: ‘Look on me and do likewise.’ (Judges 7). The
example given by the respondent to his subordinates, to the IDF and to
society in general has been negative and the harm caused – both at home
and abroad – is probably irretrievable. Given the seriousness of the
failure, . . . a clear and distinct statement is warranted.”52
E. The Similar Investigatory Systems of Other States
71. Under international law, the responsibility to investigate and prosecute alleged violations
of the Law of Armed Conflict by a state’s military forces falls first and foremost to that
state.53
72. International law does not indicate the precise manner or pace at which a state should
investigate alleged violations of the Law of Armed Conflict. As commentators have
noted, “states do seem to enjoy broad discretion (subject to good faith requirements) in
conducting ex post investigations in situations where human rights or IHL [international
humanitarian law] had been allegedly breached.”54
73. Nonetheless, the investigative systems in Israel and other democratic states (in particular,
those based on the Common Law tradition) appear to have several similarities. Like
Israel, countries such as the United Kingdom, the United States, Australia, and Canada
have processes to screen for Law of Armed Conflict and other complaints that warrant
criminal investigation, including the use of preliminary military reviews (comparable to
command investigations), to assist in that determination.55 These countries also use a
courts-martial system based within the military justice framework to adjudicate criminal
indictments alleging violations of the Law of Armed Conflict.56

52 Lt. Col. Geva v. Chief Military Prosecutor, A/153/03 ¶ 50 (5 August 2004).
53 See Informal Expert Paper, The Principle of Complementarity In Practice, at 3, available at
http://www.icc-cpi.int/iccdocs/doc/doc654724.pdf (“States have the first responsibility and right to
prosecute international crimes.”).
54 Amichai Cohen and Yuval Shany, A Development of Modest Proportions: The Application of the
Principle of Proportionality in the Targeted Killing Case, 5 J. INT’L CRIM. JUS. 310, 318 (2007). The
Human Rights Council Fact-Finding Report recognizes these principles. The Report notes that “the
responsibility to investigate violations of international human rights and humanitarian law, prosecute if
appropriate and try perpetrators belongs in the first place to domestic authorities and institutions”; and that
“international justice mechanisms” should only intercede “where domestic authorities are unable or
unwilling to comply with this obligation.” Human Rights Council Fact-Finding Report ¶ 1760.
55 See, e.g., Aitken Report, An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq
in 2003 and 2004, 25 January 2008, available at http://mod.uk/NR/rdonlyres/7AC894D3-1430-4AD1-
911F-8210C3342CC5/0/aitken_rep.pdf (hereafter “Aitken Report”) (describing the procedures for
investigating violations of the Law of Armed Conflict in the United Kingdom); Dept. of Defense Directive
No. 2311.01E, Dept. of Defense Law of War Program, 9 May 2006 (setting forth the procedures for the
investigation of “reportable incidents” regarding of the Law of Armed Conflict in the United States).
56 See, e.g., Victor Hansen, Changes Made in Modern Military Codes and the Role of the Military
Commander: What Should the United States Learn From this Revolution, 16 TUL. J. INT’L & COMP. L. 419
(2008) (describing U.S., Canadian, and United Kingdom court martial systems).

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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74. When investigating high profile or other alleged incidents of soldier misconduct, these
countries, like Israel, have sometimes encountered criticism concerning the pace at which
their investigations or prosecutions have proceeded.
75. While there is no question that investigators should move expeditiously, the key
imperative is that they take the time necessary to conduct a thorough and professional
inquiry and to uncover the truth. Investigators should not sacrifice careful, complete
examination of the facts nor adherence to the principles of due process.
(1) United Kingdom
76. The United Kingdom uses both criminal investigations and independent investigations
within the military to examine alleged violations of the Law of Armed Conflict.57 The
Army Prosecuting Authority (APA) (which has recently been consolidated into a servicewide
Prosecution Authority) traditionally has dealt with cases referred to it by the army
chain of command.58 “Legal advice is available for commanding officers and higher
authorities to assist with decisions on referring appropriate cases to the APA.”59 The
Director of Army Legal Services (ALS), who is appointed by the Queen as the APA, “has
responsibility for decisions on whether to direct trial for all cases referred by the military
chain of command, and for the prosecution of all cases tried before courts-martial, the
Standing Civilian Court and the Summary Appeal Court and for Appeals before the
Courts-Martial Appeal Court and the House of Lords.”60
77. The Director of ALS delegates these decision-making functions to “ALS officers
appointed as prosecutors in the APA.”61 As in Israel, “[t]he APA is under the general
superintendence of the Attorney-General and is, rightly, independent of the Army Chain
of Command.”62 The APA (and new consolidated Prosecuting Authority) can decide not
to institute court martial proceedings, refer the case back to the commanding officer to
address, or direct a trial by court martial.63 Like the Military Advocate General, the
Director General of ALS is responsible both for providing legal advice to the army chain
of command and for prosecution of offenders.64
78. For those incidents that do not warrant direct referral to the APA, the United Kingdom
military investigates allegations of misconduct within its military justice framework

57 See generally Aitken Report.
58 See HM Crown Prosecution Inspectorate’s Follow-Up Report on the Army Prosecuting Authority,
February 2009, at 1.
59 Aitken Report ¶ 28.
60 Id.
61 Id.
62 Id.
63 See HM Crown Prosecution Inspectorate’s Follow-Up Report, supra, at 1.
64 See British Army Website, Army Legal Services, available at http://www.army.mod.uk/agc/9935.aspx.

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through administrative actions, informal investigations, or formal investigations ordered
by a Board of Inquiry.65
(2) United States
79. To respond to alleged violations of the Law of Armed Conflict, the United States grants
multiple actors within the Department of Defense and the military branches independent
authority to order an investigation.66 Specifically, the investigatory procedures in the
United States follow the same general practice as in Israel. When a “reportable incident”67
involving the Law of Armed Conflict occurs, the appropriate field commander has the
duty to report the incident up the chain of command immediately.68 Commanders
receiving information about an alleged Law of Armed Conflict violation conduct a formal,
or more often informal, investigation to collect evidence and assess the credibility of the
allegations to determine whether a crime has been committed.69 The report then both
moves up the chain of command to the relevant Commander of the Combatant Command,
and goes to the appropriate military investigation agency to determine whether to initiate a
criminal investigation, as well as to the General Counsel of the Department of Defense.70
80. One recent example of this process is the investigation of a U.S. military engagement with
Taliban insurgents in Afghanistan, which resulted in civilian casualties. There, “U.S.
military elements in Afghanistan began a preliminary inquiry” of the incident.71 After the
preliminary inquiry, the Commander of U.S. Central Command “directed a U.S. Army
General from outside Afghanistan to conduct a full investigation” who later presented his
final report to the Commander and key leaders. The investigating officer’s findings and
recommendations, which found no violation of the Law of Armed Conflict but suggested
operational improvements, were approved by the Commander.

65 Aitkin Report ¶ 36. Formal and informal investigations can be independent of the chain of the command
but are conducted within the military.
66 See Dept. of Defense Directive No. 2311.01E, Dept. of Defense Law of War Program (9 May 2006).
Although the Defense Department Law of War Program Directive establishes comprehensive procedures
for investigating incidents related to the Law of Armed Conflict, as developed below, investigations are
typically ordered by military commanders or military investigation agencies.
67 A “reportable incident” is defined as “[a] possible, suspected, or alleged violation of the law of war, for
which there is credible information, or conduct during military operations other than war that would
constitute a violation of the law of war if it occurred during an armed conflict.” See CJCSI 5810.01C ¶
5(b).
68 See Dept. of Defense Directive No. 2311.01E ¶¶ 6.3-6.8; CJCSI 5810.01C ¶ 7(a)-(b).
69 See U.S. Dept. of Navy, JAG Inst. 5800.7D, Manual of the Judge Advocate General, ch 11 (15 March
2004); U.S. Dept. of Army, Reg. 15-6, Procedures for Investigating Officers and Boards of Officers (2
November 2006).
70 See Dept. of Defense Directive No. 2311.01E ¶ 6.5.1-2; CJCSI 5810.01C ¶ 7(c).
71 UNCENTCOM’s Unclassified Executive Summary, U.S. Central Command Investigation into Civilian
Casualties in Farah Province, Afghanistan on 4 May 2009.

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81. Criminal investigations of soldier misconduct in the United States are conducted by,
among others, the United States Army Criminal Investigation Command (USACIDC).72
The USACIDC’s investigative responsibilities include alleged war crimes and in some
cases crimes against coalition forces and host nation personnel.73 The USACIDC does not
impose time tables for investigations. Rather, like Israel, it takes the time needed to
conduct a professional inquiry:
“Criminal investigations take as long as required to get to the truth and
determine exactly what transpired in a particular circumstance. Although
time is very important, criminal investigations are conducted to a
standard not necessarily to a timetable. CID is dedicated to conducting
thorough and professional criminal investigations no matter how long it
takes.”74
82. If an investigation reveals evidence of criminal wrongdoing, the ensuing criminal
proceeding in the American system is a court-martial similar to the proceedings in Israel.
Military prosecutors, known as Judge Advocates, are free from command influence,
although as a matter of organizational structure they are subordinate to the command
authority. Judge Advocates advise the “Convening Authority”75 whether to refer cases to
a court martial for trial and to approve, modify, or disapprove the findings and sentences
in court martial proceedings.76 Unlike in Israel, Judge Advocates in the United States do
not file cases on their own77 and the U.S. system does not provide for independent judicial
review of the decision to commence or not commence a criminal proceeding.
(3) Australia
83. Under the Australian legal system, upon receipt of a complaint alleging soldier
misconduct, a commander or supervisor may direct what is called a Quick Assessment
(QA) of the incident. A QA has a similar purpose to the Israeli initial command

72 U.S. Army Criminal Investigation Command website, available at

http://www.cid.army.mil/mission.html.

73 Id.
74 U.S. Army Criminal Investigation Command frequently asked questions website, available at

http://www.cid.army.mil/faqs.html.

75 “Convening Authority” is defined to include “a commissioned officer in command for the time being
and successors in command.” Manual for Courts-Martial United States (2008 ed.), Rules for Courts-
Martial (“R.C.M.”) 103(6), available at http://www.jag.navy.mil/documents/mcm2008.pdf.
76 Uniform Code of Military Justice, Art. 34, Art. 64, available at http://www.army.mil/references/
UCMJ/. As with the Military Advocate General, Judge Advocates are responsible both to provide legal
advice to the military chain of command and to prosecute UCMJ offenders. See U.S. Army JAG website,
available at http://www.goarmy.com/JobDetail.do?id=318 (providing that JAG officers “[p]rosecute
criminal cases under [UCMJ]” and “[a]dvise commanders of all levels on all legal issues as they arise”);
U.S. Air Force JAG website, available at http://www.afjag.af.mil/shared/media/document/AFD-080502-
052.pdf (similar).
77 See R.C.M. 401, 504, 505, 601, 1107.

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investigation as it is conducted to determine whether there is any substance to allegations
that may warrant further investigation or inquiry.78
84. The Quick Assessment Officer (QAO) conducts informal interviews, collects evidence,
and issues a report and recommendation. The QAO can recommend no further inquiry if
he or she finds insufficient evidence of a violation of the Law of Armed Conflict or other
law. Alternatively, depending on the nature of the alleged violation, the QAO can
recommend a Military Commission Board of Inquiry, an Inquiry Officer inquiry, or a
Routine Inquiry (all of which are conducted within the military).
85. When the QA indicates a concern regarding criminal wrongdoing, the QA Officer will
recommend a criminal investigation by the Australian Defence Force Inquiry Services
(ADFIS). The recommendation is referred and reviewed up the chain of command. If the
matter is referred to the ADFIS, it in turn may investigate and send the matter to a hearing
before a Defence Force Magistrate or a Commanding Officer or may refer the incident to
the civilian police.
(4) Canada
86. Under Canada’s system, complaints alleging a prima facie violation of the Law of Armed
Conflict during an operational activity generally are referred to the National Investigation
Service (NIS).79 The NIS is accountable to the Canadian Forces Provost Marshal.80 The
NIS’s mandate is to investigate “serious and sensitive matters,” including alleged
violations of the Law of Armed Conflict, concerning Canadian Forces serving in Canada
and abroad.81 If NIS becomes aware of allegations of a potential criminal offence
(through regular military police or through complaints from members of the Canadian
forces or other sources), it reviews the information to determine whether a NIS
investigation should be conducted.82 If the allegation does not appear to meet the “serious
or sensitive” standard, it can be investigated by non-NIS military police or by the
command unit. Prosecutions for serious charges are carried out by the Canadian Military
Prosecution Service (CMPS), which is answerable to the Director of Military Prosecutions
(DMP). The DMP reports to the Judge Advocate General (JAG) but exercises his or her
duties and functions independently.83 The CMPS provides legal advice to NIS military

78 See The Defence Instructions (General) – Quick Assessment (Defence Instructions), Admin 67-2 (7
August 2007), available at http://www.defence.gov.au/fr/Policy/ga67_02.pdf.
79 See Canadian Forces National Investigation Service, Annual Report 2007, dated 11 March 2008, at 11,
available at http://www.vcds.forces.gc.ca/cfpm-gpfc/cfp-ggp/nis-sne/ar-ra/2007/doc/nisar-snera-2007-
eng.pdf.
80 The Canadian Forces National Investigation Service, CFNIS 2009-02, 1 May 2009, available at

http://news.gc.ca/web/article-eng.do?m=/index&nid=446989.

81 The Investigation and Charging Process in the Military Justice System (National Defence Canada),
available at http://www.forces.gc.ca/jag/publications/Training-formation/ChargInves-EnqueAccu-eng.pdf.
82 The Canadian Forces National Investigation Service, CFNIS 2009-02, 1 May 2009.
83Abridged Annual Report of the Director of Military Prosecutions, 2006-7, available at

http://www.forces.gc.ca/jag/publications/DMP-DPM/DMP-DPM-AR0607-eng.pdf.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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police, reviews charge for court martial (including on grounds of sufficiency of evidence)
and conducts prosecution of trials by court martial.84
87. Matters that do not initially indicate criminal wrongdoing go to either Summary
Investigations (SI) if they are minor or uncomplicated, or to a military Board of Inquiry
(BOI) if they are more complex.85 If either an SI or BOI receives evidence that reasonably
relates to an allegation of criminal conduct, the proceedings must be suspended for
potential criminal investigations.86 In a BOI, a soldier can be compelled to testify, but as
in Israel’s command investigations, any self-incriminatory statements are inadmissible as
evidence against the soldier in a court martial or trial.87
(5) Summary
88. In sum, these military justice systems share similarities with the system in Israel. They
rely on a combination of field reviews, informal and formal military investigations, and
prosecutions by courts martial or their equivalent. While these other systems differ in
some respects from each other and from the Israeli system, all of them nonetheless have
been accepted worldwide as sufficient for investigating alleged violations of the Law of
Armed Conflict. The comparisons also reflect that investigations into alleged violations
of the Law of Armed Conflict can take several weeks, months, or even years. The length
of time is contingent on a variety of factors and customary international law does not
reflect a standard pace for conducting such investigations, much less a deadline that Israel
has exceeded.

84 Abridged Annual Report of the Director of Military Prosecutions, 2006-7.
85 See National Defence and the Canadian Forces, Defence Administration Orders and Directives
(“DAOD”) 7002-1, 8 February 2002 (as modified 7 May 2007), available at
http://www.admfincs.forces.gc.ca/dao-doa/7000/7002-1-eng.asp (purpose of BOI is “to investigate and
report on matters of unusual significance or complexity”); DAOD 7002-2 8 February 2002 (as modified 7
May 2007), available at http://www.admfincs.forces.gc.ca/dao-doa/7000/7002-2-eng.asp (purpose of SI is
“to investigate and report on matters of a minor, straightforward and uncomplicated nature”).
86 DAOD 7002-1; 7002-2 (providing that terms of reference for both SI and BOI must contain paragraphs
stating “Should the BOI receive evidence that it reasonably believes relates to an allegation of a criminal
act or a breach of the Code of Service Discipline, the BOI shall adjourn, the convening authority shall be
notified, and the matter shall be referred to the nearest JAG representative for advice.”). Like the Military
Advocate General, the Canadian Judge Advocate General is responsible both to provide legal advice to the
military chain of command and to prosecute criminal offenders. See National Defence and the Canadian
Forces JAG website, available at http://www.forces.gc.ca/jag/office-cabinet/law-droit-eng.asp (providing
that the JAG is responsible for being “legal advisor . . . to the Canadian Forces” on a number of issues,
including “international and operational law” and “criminal law and military justice policy,” and for
“[p]referral of charges for tr[ia]l at courts martial” and “[p]rosecutions at courts martial”).
87 Meade v. Her Majesty the Queen in Right of Canada [1991] 3 F.C. 365 ¶ 9.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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IV. COMPLAINTS ALLEGING VIOLATIONS OF THE LAW
OF ARMED CONFLICT DURING THE GAZA OPERATION
89. Israel is aware of concerns raised regarding the Gaza Operation. As discussed in detail in
The Operation in Gaza, and as outlined above, the deliberate strategy of Hamas to blend
in with the civilian population made it difficult for the IDF to achieve the objective of the
Gaza Operation – reducing the threat of deliberate attacks against Israeli civilians – while
also avoiding harm to Palestinian civilians. To be sure, the IDF undertook strenuous
efforts to minimise such harm. It intensively trained its personnel on the requirements of
the Law of Armed Conflict. It delayed, diverted, or refrained from attacks to spare
civilian life. It provided numerous and varied types of concrete warnings before
launching attacks.88 Nevertheless, Israel’s efforts to comply with the Law of Armed
Conflict do not lessen its regret for the loss of innocent lives and damage to civilian
property.
90. Following the Gaza Operation, Israel took several concrete steps to reaffirm its
commitment to thoroughly investigating, and where appropriate, prosecuting, alleged
violations of the Law of Armed Conflict:
o Israel undertook to investigate every specific complaint of alleged violations during
the Gaza Operation, regardless of the credibility of the source.
o The Military Advocate General personally reviewed each complaint submitted and,
when available, the record of each command investigation before deciding whether to
initiate a criminal investigation.
o The Chief of General Staff initiated six special command investigations to examine
some of the most serious allegations, in addition to the other command investigations
conducted.89
o The Military Advocate General ordered the Office of the Military Advocate for
Operational Affairs to work closely with the MPCID on every criminal investigation,
even before any decision on whether to file charges.
91. At the time of this Report, the IDF has investigated or is currently investigating more than
150 separate incidents that allegedly occurred during the Gaza Operation involving
violations of the Law of Armed Conflict. The IDF initiated many of these investigations
based on its own sources of information. Others came to the attention of the Israeli
authorities through a variety of channels, either directly via complaints submitted by
Palestinians and non-governmental organisations, or indirectly through media accounts
and reports published by non-governmental organisations and other sources (among them,
the Human Rights Council Fact-Finding Report).

88 See The Operation in Gaza: Factual and Legal Aspects ¶¶ 262-65.
89 Five special command investigations were initiated immediately after the conclusion of the Operation,
and an additional special command investigation was initiated on 10 November 2009.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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92. The pace of these investigations reflects an orderly approach to uncovering the facts while
at the same time safeguarding the rights of civilians and military personnel. Ideally,
investigations would begin earlier, end sooner, and yield irrefutable results. But the
combat and immediate post-combat environment is not ideal, and it complicates the
gathering of evidence and the conduct of investigations. While the Gaza Operation
concluded only one year ago, a thorough investigation takes time.
93. The unique difficulties involved in the investigation of alleged violations of the Law of
Armed Conflict in the battlefield should not be ignored. They include: the inability to
secure the scene for forensic and physical evidence, either during a battle or after, when
the territory is under enemy control; the possible destruction of evidence during fighting
and the possible manipulation of the scene by the enemy; the need to recall reserve
soldiers back for questioning; the difficulty of accurately identifying the location of an
incident, when it is described in local and unofficial terms and slang; and the need to
locate the adversary’s civilians as witnesses and overcome their natural suspicion and fear
of reprisals by their authorities.90
94. Despite these complexities, the IDF has made significant progress with the investigations
and concluded many of them. To date, some investigations have resulted in prosecutions
for disciplinary and criminal violations. In others, the preliminary command
investigations have been concluded and the Military Advocate General is undertaking his
own review to determine whether the record warrants further investigation. In some
cases, the Military Advocate General found no evidence of wrongdoing and closed the
investigation. As many of the investigations are subject to further review by the Military
Advocate General, the Attorney General, and the Supreme Court, it is possible that
different conclusions will emerge as these cases advance through Israel’s justice system.
95. Israel has periodically released detailed information concerning the status of its
investigations into the Gaza Operation.91 Current information about these investigations is
provided in the following sections.
A. Command Investigations
(1) Five Special Command Investigations Opened Upon the
Conclusion of the Gaza Operation
96. On 20 January 2009 – just two days after the conclusion of the Gaza Operation – IDF
Chief of General Staff Lt. Gen. Ashkenazi ordered five special command investigations
into a range of allegations raised by international and non-governmental organisations and
various news media. To head the investigations, he appointed five Colonels with

90 As discussed below, the MPCID has interviewed almost 100 Palestinians at the Erez border crossing
point principally by working with non-governmental organisations acting as liaisons with the civilian
population of Gaza.
91 See, e.g., The Operation in Gaza: Factual and Legal Aspects. Israel also posts information concerning
the investigations at the Ministry of Foreign Affairs website, available at http://www.mfa.gov.il/MFA.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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substantial field and command expertise who were not directly involved with the incidents
investigated or in the direct chain of command. These investigations were not routine
field reviews. Rather, the mandates focused on five types of alleged violations of the Law
of Armed Conflict, encompassing 30 individual incidents:
o Claims regarding incidents in which a large number of civilians not directly
participating in the hostilities were harmed;92
o Claims regarding incidents where U.N. and international facilities were fired upon and
damaged during the Gaza Operation;93
o Incidents involving shooting at medical facilities, buildings, vehicles and crews;94
o Destruction of private property and infrastructure by ground forces;95 and

92 The Chief of General Staff’s mandate was very specific about the allegations to be investigated,
requiring review of, for example, the “Attack of a senior Hamas operative Nizar Rian, allegedly resulting
in the death of 15 other individuals (4 January),” “Attack of the mosque in Beit Lahia, allegedly resulting
in the death of 8 individuals (3 January),” and “Attack of the mosque of Imad Aq’al, allegedly resulting in
the death of 7 individuals, 4 of them minors (29 December).” The mandate provided details, when
available, such as dates, location, family names and relationships, and the number and gender of
individuals allegedly killed. The mandate also required an investigation into the “[d]etails regarding the
orders and instructions given in the IDF (on different levels of command before and during the operation)
and regarding avoidance of disproportional harm to civilians not taking active part in the hostilities,
regarding safety ranges from such civilians in different circumstances and using different weapons.”
93 The Chief of General Staff’s mandate identified with specificity four alleged incidents to be investigated
– for example, the “Shooting towards Fakhura school in Jabaliyah (6 January),” and “Damage to the
UNRA school as a result of a strike by the air force, allegedly resulting in the death of 3 individuals.” The
mandate also required investigators to gather “information regarding intentional use by Hamas of UN
premises or facilities for cover or as cover for shooting” and the “information regarding the orders and
instructions given in the IDF (by different command levels, before and during the operation) regarding
avoidance of harm to UN and international organizations’ premises, facilities, vehicles and teams.” This
mandate was later extended to include other incidents investigated by the United Nations Headquarters
Board of Inquiry in the Gaza Strip between 27 December 2008 and 19 January 2009.
94 The Chief of General Staff’s mandate required investigations into seven specific alleged incidents, such
as the “Hitting of a medical team on its way to aid a wounded bleeding person in the area of Jabel Kashef,
in the north-eastern area of the Gaza Strip, resulted in the death of a doctor, Dr. Ihmad Madhoun, the
paramedic Abu Hesri, and the l wounded person (31 December),” and “Shelling of Dababish family
residence in Sheikh Raduan, during a time when the medical team was at the location in order to evacuate
the wounded, as a result of which one member of the medical team was killed (3 January).” With regard
to each of these incidents, the mandate directed that the investigations seek “information regarding
shooting incidents from within or nearby medical premises, facilities or vehicles, and regarding intentional
use by Hamas of medical premises, facilities and vehicles for the purpose of fighting, cover for shooting,
movement of weapons and combatants” and the “[d]etails regarding the orders and instructions given in
the IDF (on different command levels, before and during the operation) regarding avoidance of harm to
medical premises, facilities, vehicles and medical teams.”
95 The Chief of General Staff’s mandate required investigations into the following issues: “a. Orders and
instructions given and determined by different command levels (from the headquarters to the ground
forces, before and during the operation), regarding the destruction of buildings and infrastructure. b.
Extent of destruction of buildings and infrastructure in the different areas, divided in accordance to: stages
of the operation, operating units, types of buildings or infrastructure that were damaged, purposes of
destruction, the manner in which the destruction was carried out (via engineers/method of
[Footnote continued on next page]

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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o The use of weaponry containing phosphorous.96
97. The investigations focused not merely on improving operational performance, but rather
on assessing specific incidents of harm to civilians and protected persons or facilities. The
mandates directed the command investigators to conduct detailed inquiries into, among
other things, “the orders and instructions given in the IDF (at different levels, before and
during the operation) regarding the avoidance of harm” – including instructions regarding
“avoidance of disproportional harm to civilians not taking active part in the hostilities,
regarding safety ranges for the use of different weapons from such civilians in different
circumstances.”
98. In accordance with standard IDF procedures for command investigations, the investigators
operated independently and had access to all available materials as well as the freedom to
question any relevant IDF personnel. They interviewed numerous soldiers and officers,
and gathered relevant documents and other materials from external sources. They
reviewed operational logs, video footage and photographs from aerial vehicles, fragment
analysis reports, internal military debriefings, intelligence documents, relevant rules of
engagement and operational plans, and volumes of other relevant materials. Each soldier
interviewed was required to cooperate with the investigation, and each did so.
99. The special investigations revealed some instances of intelligence and operational errors.
For example, one special command investigation determined that the IDF mistakenly
targeted the home of the Al-Daya family rather than a neighbouring weapons storage
facility, resulting in civilian deaths. In another instance, where the lead car of a UNRWA
convoy was fired upon, the investigation revealed communication errors in coordinating
the movement of the convoy. To avoid these types of errors in the future, IDF Chief of
General Staff Lt. Gen. Gabi Ashkenazi directed that certain standing orders be highlighted
or clarified and ordered improvements in certain command operations.
100. The special command investigations also uncovered some instances where IDF soldiers
and officers violated the rules of engagement. For example, in one case, a Brigadier
[Footnote continued from previous page]
destruction/verification of evacuation of residents) and whether the destruction was planned or
spontaneous by decisions which were taken in the field in ‘real time’. c. Intelligence and operational
information regarding the nature of the enemy’s offensive and defensive methods, and with regard to
infrastructure of the enemy that was identified and documented by our forces, which support the
operational necessity of destruction.”

96 The Chief of General Staff’s mandate required investigations into the following issues: “a. Kinds and
amount of weapons containing phosphorous, allocated to the forces before and during the operation. b.
Kinds and amount of weapons containing phosphorous, actually used during the operation. c. Purpose and
military needs for the use of weapons which contain phosphorous (for example – smoke screening,
marking), the targets at which these weapons were fired (for example – open areas, sources of fire in built
up areas), all this divided in accordance with the type of weapon. d. Professional instructions which exist
with regard to every kind of these weapons. e. Rules of engagement relevant to every type of these
weapons, including safety ranges which apply with regard to the firing of weapons which contain
phosphorous (specifically, the existence of limitations of any kind on the firing of these weapons to
populated areas). f. Deviations (if there were) from the instructions and orders with regard to the use of
weapons which contain phosphorous, and the core reasons behind such exceptions.”

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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General and a Colonel had authorized the firing of explosive shells which landed in a
populated area, in violation of IDF orders limiting the use of artillery fire near populated
areas. The Commander of the Southern Command disciplined the two officers for
exceeding their authority in a manner that jeopardized the lives of others.
101. Upon completion of the special command investigations, the investigators presented their
findings to the IDF Chief of General Staff, Lt. Gen. Gabi Ashkenazi, who adopted their
recommendations.97 The Chief of General Staff ordered the IDF to implement lessons
learned on a broad range of matters, directing that certain standing orders be highlighted
or clarified, establishing further guidelines on the use of various munitions, and instructing
that steps be taken to improve coordination with humanitarian organisations and entities.
102. The Military Advocate General received the findings and evidentiary record of each
special command investigation as a source of factual information to assist in the analysis
of the relevant allegations. On 19 January 2010, the Military Advocate General issued his
opinion, which addressed each of the five special command investigations.
(i) Claims regarding incidents in which a large number of civilians not
directly participating in the hostilities were harmed
103. The investigation into these allegations included 7 separate incidents. Some of the
findings of the special command investigation are detailed in The Operation in Gaza.98
104. As to 4 of the incidents, the Military Advocate General completed his investigation and
review, finding no grounds to open a criminal inquiry.99 The investigations with regard to
three incidents are still underway.100 In 2 instances, due to the complexity of the
circumstances, the special command investigation is still ongoing. The third incident
involved the alleged strike on the Al Maquadme Mosque, which the Chief of General
Staff had remanded for a new special command investigation (as discussed below).
(ii) Claims regarding incidents where U.N. and international facilities were
fired upon and damaged during the Gaza Operation
105. The investigation into these allegations included 13 separate incidents. Some of the
findings of the special command investigation are detailed in The Operation in Gaza.101

97 See IDF Spokesperson Announcement, Conclusion of Investigations into Central Claims and Issues in
Operation Case Lead (22 April 2009), available at http://idfspokesperson.com/2009/04/22/idfannouncement-
findings-from-cast-lead-investigations/.
98 The Operation in Gaza: Factual and Legal Aspects ¶¶ 381-403.
99 The four incidents are: the attack resulting in the death of Hamas senior operative Nizar Ri’an and
allegedly 15 other individuals; alleged attack of the mosque of Al Rabat; attack of a truck carrying oxygen
tanks; and attack of Dr. Abu El Eish family residence.
100 The three incidents are: the alleged attack of the Mosque of Imad Aq’al; the strike of the Al Daiya
family residence; and the alleged attack of Al Maquadme Mosque.
101 The Operation in Gaza: Factual and Legal Aspects ¶¶ 330-69.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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106. The Military Advocate General reviewed the findings and entire record of this special
command investigation. He also reviewed additional materials, including information in
the Human Rights Council Fact-Finding Report and the Report of the United Nations
Headquarters Board of Inquiry into certain incidents in the Gaza Strip Between 27
December 2008 and 19 January 2009.
107. The Military Advocate General found no basis to order criminal investigations of the
thirteen incidents under review. With regard to two of these incidents, the Military
Advocate General affirmed the decisions to pursue disciplinary proceedings against IDF
personnel.
108. One of these incidents involved alleged damage to the UNRWA field office compound in
Tel El Hawa.102 The special command investigation revealed that, during the course of a
military operation in Tel El Hawa, IDF forces fired several artillery shells in violation of
the rules of engagement prohibiting use of such artillery near populated areas. Based on
these findings, the Commander of the Southern Command disciplined a Brigadier General
and a Colonel for exceeding their authority in a manner that jeopardized the lives of
others.
109. As noted in The Operation in Gaza, the United Nations Secretary General established a
Board of Inquiry to examine a number of incidents involving damage to U.N. facilities,
independent of the ongoing investigations in Israel. Israel cooperated fully with U.N.
Board of Inquiry, sharing the results of its internal investigations and providing detailed
information about the incidents in question. The Secretary General commended Israel for
its extensive cooperation.103
110. Following the U.N. Board of Inquiry’s examination, and notwithstanding certain
reservations it had with some aspects of the Board’s report, Israel entered into a dialogue
with the United Nations to address all issues arising from the incidents examined. On 22
January 2010, the Secretary General thanked Israel for its “cooperative approach” in these
discussions and confirmed that all financial issues relating to these incidents had been
satisfactorily concluded.104
(iii) Incidents involving shooting at medical facilities, buildings, vehicles and
crews
111. The investigation into these allegations included 10 separate incidents. Some of the
findings of the special command investigation are detailed in The Operation in Gaza.105

102 Id. ¶¶ 341-47.
103 See Letter from the Secretary General to the President of the Security Council (4 May 2009), available
at http://www.unhcr.org/refworld/docid/4a292c8dd.html (expressing “appreciation for the cooperation
provided by Israel to the Board”).
104 U.N. Spokesperson Briefing (22 January 2010), available at http://www.unmultimedia.org/radio/
english/detail/89687.html.
105 The Operation in Gaza: Factual and Legal Aspects ¶¶ 370-80.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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112. The Military Advocate General found no basis to order criminal investigations of the 10
incidents under review.
(iv) Destruction of private property and infrastructure by ground forces
113. This investigation dealt with the general allegations that the IDF intentionally destroyed
private property and civilian infrastructure during the Gaza operation. The investigation
did not deal with specific incidents alleged in complaints or reports. Some of the findings
of the special command investigation are detailed in The Operation in Gaza.106
114. The Military Advocate General reviewed the findings and the entire record of the
investigation. The Military Advocate General noted that according to the Law of Armed
Conflict, the destruction of private property is prohibited, except where such a destruction
is justified by military necessity. He also emphasised that the findings of the special
investigation are consistent with Israel’s obligations under the Law of Armed Conflict. In
this regard, the Military Advocate General noted that the extent of destruction, by itself,
cannot establish a violation of the Law of Armed Conflict.
115. Because this investigation was limited in scope and dealt with overall issues, specific
incidents reported after the conclusion of the special command investigation have been
referred to individual command investigations. The Military Advocate General stressed
the importance of a thorough investigation of each such incident.
116. The Military Advocate General further emphasised the importance of clear regulations
and orders, as well as clear combat doctrine, regarding the demolition of structures and
infrastructure. The IDF has already adopted such regulations and combat doctrine.
(v) The use of weaponry containing phosphorous
117. This investigation dealt with the use of weapons containing phosphorous by IDF forces
during the Gaza Operation. The investigation focused on the different types and number
of weapons containing phosphorous used during the Operation, the purposes for which
they were used, the applicable professional instructions and rules of engagement, and the
extent of compliance with those instructions and rules. Some of the findings of the special
command investigation are detailed in The Operation in Gaza.107
118. The Military Advocate General reviewed the entire record of the special command
investigation. With respect to exploding munitions containing white phosphorous, the
Military Advocate General concluded that the use of this weapon in the operation was
consistent with Israel’s obligations under international law.
119. With respect to smoke projectiles, the Military Advocate General found that international
law does not prohibit use of smoke projectiles containing phosphorous. Specifically, such
projectiles are not “incendiary weapons,” within the meaning of the Protocol on

106 Id. ¶¶ 436-45.
107 Id. ¶¶ 405-35.

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Prohibitions or Restrictions on the Use of Incendiary Weapons,108 because they are not
primarily designed to set fire or to burn. The Military Advocate General further
determined that during the Gaza Operation, the IDF used such smoke projectiles for
military purposes only, for instance to camouflage IDF armor forces from Hamas’s antitank
units by creating smoke screens.
120. The Military Advocate General found no grounds to take disciplinary or other measures
for the IDF’s use of weapons containing phosphorous, which involved no violation of the
Law of Armed Conflict. Nevertheless, the Military Advocate General’s opinion did not
address a number of specific complaints that were received after the investigation
concluded and which are being investigated separately.
(vi) Concluding observations
121. The Military Advocate General ended his opinion on the five special command
investigations by underlining the IDF’s commitment to compliance with the Law of
Armed Conflict, as well as its intention to investigate thoroughly every alleged violation
by IDF forces. He noted that the evidence gathered by the special investigations reflected
great effort by the IDF to ensure such compliance and to minimize harm to civilians.
122. The Military Advocate General acknowledged that the investigations had found
operational lapses and errors in the exercise of discretion. However, given the
complexities of decision making under pressure, particularly when the adversary has
entrenched itself within the civilian population, such mistakes do not in themselves
establish a violation of the Law of Armed Conflict.
123. The Military Advocate General further emphasised the importance of implementing the
operational lessons learned from the special command investigations.
(2) Additional Special Command Investigation
124. In addition to the original five special command investigations, the Military Advocate
General recommended that the Chief of General Staff establish an additional special
command investigation to assess certain allegations discussed in the Human Rights
Council Fact-Finding Report. The Chief of General Staff agreed and, on 10 November
2009, appointed another Colonel with substantial field and command experience who was
not directly involved with the incidents in question to conduct that investigation.
125. The additional special command investigation focuses on three sets of allegations from the
Human Rights Council Fact-Finding Report. One set relates to the Al-Samouni residence,
where an IDF attack allegedly caused the injury and death of several dozen civilians who
108 Protocol III of the Convention on Prohibitions or Restrictions on the Use of Certain Weapons Which
May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW). Israel is not a
party to CCW Protocol III.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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were seeking shelter there.109 Another set of allegations under review relates to claims that
the IDF mistreated Palestinians detainees.110 A third set of allegations under review relates
to an alleged attack on the Al-Maquadme Mosque.111
126. The alleged attack of the Al-Maquadme Mosque was first examined during one of the
original five special command investigations. At that time, the special command
investigator concluded that the mosque had not been struck during a military operation.
After reviewing the findings of the investigation, along with media accounts and reports of
non-governmental organisations (some of which were published after the investigation
had concluded), the Military Advocate General recommended that a new special
command investigation examine the allegations again.
127. Upon conclusion of his investigation, the special command investigator will present his
findings to the Military Advocate General, who will then determine whether there is
suspicion of a violation of the Law of Armed Conflict warranting further investigation.
(3) Other Command Investigations
128. In addition to the special command investigations discussed above, the Military Advocate
General referred complaints regarding approximately 90 incidents for command
investigations. These incidents generally involve allegations of civilian injuries or deaths
and destruction of civilian property during the Gaza Operation.
129. As explained above, injuries to civilians and damage to civilian property during hostilities
do not, in themselves, provide grounds for opening a criminal investigation into potential
violations of the Law of Armed Conflict. There must be additional circumstances to
warrant a reasonable suspicion of such a violation. As also explained above, after
reviewing the findings and record of a command investigation, along with the complaint
and other relevant information, the Military Advocate General will decide whether to
order a criminal investigation into each incident.
130. To date, the IDF has completed 45 of the approximately 90 command investigations
referred by the Military Advocate General. As discussed below, after reviewing the

109 See Human Rights Council Fact-Finding Report ¶¶ 712-22. The mandate required an investigation of
allegations that “IDF deliberately shot civilians in the Al-Samouni residential compound in Zeitoun, and
prevented the access of medical teams, as well as evacuation of the wounded,” resulting in the death of
more than 20 civilians. The Military Advocate General had previously referred additional allegations
related to the alleged shooting of members of the Al-Samouni family for a criminal investigation. See
Human Rights Council Fact-Finding Report ¶¶ 709-11.
110 See Human Rights Council Fact-Finding Report ¶¶ 1107-26. The mandate required an investigation of
allegations that “IDF forces held the detainees in cruel, inhumane and degrading conditions,” such “in pits,
exposed to cold and bad weather conditions, handcuffed and with their eyes covered, without food or
ability to relieve themselves” and “during the night in trucks, while they are handcuffed, without having
enough blankets.”
111 See Human Rights Council Fact-Finding Report ¶¶ 822-30. The mandate directed the command
investigator to “examine the allegations . . . that during prayer time (between 17:00 and 18:00), an
explosion had happened in the entrance to the mosque, resulting in the death of 15 civilians.”

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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findings and records of command investigations along with other relevant materials, the
Military Advocate General has referred 7 incidents for criminal investigations. The
Military Advocate General has found that other incidents investigated raised no
reasonable suspicion of a violation of the Law of Armed Conflict. Investigations into the
remaining 45 incidents continue.
B. Criminal Investigations
131. To date, the Military Advocate General has already referred 36 separate incidents for
criminal investigation. The Military Advocate General determined that the nature of the
alleged incidents and/or the evidentiary record raised a reasonable suspicion that allegedly
criminal behaviour occurred.
132. Special investigative teams of the MPCID were appointed solely for the purpose of
investigating complaints stemming from the Gaza Operation. The Commander of the
MPCID supervises the professional investigative teams, with involvement by the Office of
the Military Advocate for Operational Matters. The teams included 16 investigators, as
well as Arabic interpreters.
133. The MPCID has sought assistance from non-governmental organisations (such as
B’Tselem) to help locate Palestinian complainants and witnesses and to coordinate their
arrival at the Erez crossing point to Gaza, to allow interviews and questioning. To date,
MPCID investigators have taken testimony from almost 100 Palestinian complainants and
witnesses, along with approximately 500 IDF soldiers and commanders. They have
devoted thousands of working hours to the investigations thus far.
134. Of the 36 incidents referred thus far for criminal investigation, 19 incidents involved
alleged shootings towards civilians. The Military Advocate General referred most of
these incidents (12) directly for criminal investigation (without requesting a command
investigation or awaiting the results of one), while some of them (7) were referred after
the Military Advocate General reviewed the findings and records gathered during
command investigations and concluded that there was a reasonable suspicion of criminal
activity by IDF forces.
135. The remaining 17 incidents involved allegations of using civilians as human shields,
mistreatment of detainees and civilians, and pillage and theft. In these instances, the
Military Advocate General determined that the allegations, if true, concerned events that
were clearly beyond any legitimate operational activity, and therefore directly referred all
of the cases to criminal investigation.
136. The allegations referred for criminal investigation came from a variety of sources,
including: local and international media reports and inquiries; letters from Palestinians or
their attorneys; and letters and reports from non-governmental organisations (e.g., Public
Committee against Torture in Israel, Human Rights Watch, Amnesty International,
Médecins Sans Frontières). Some of these incidents are also described in the Human
Rights Council Fact-Finding Report. The Military Advocate General opened a number of

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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direct criminal investigations after hearing reports alleging that IDF soldiers had described
conduct by themselves or fellow soldiers that would violate the Law of Armed Conflict.
137. Of these 36 criminal investigations, 1 investigation has already led to an indictment and
conviction of an IDF soldier.112 The Military Advocate General has exercised his
discretion to close 7 criminal investigations without charges because the complainants
refused to give testimony and/or there was insufficient evidence of a criminal violation.113
The remaining 28 investigations are ongoing.
C. Incidents Discussed in Human Rights Council Fact-
Finding Report
138. The incidents subject to command and criminal investigations discussed above include the
34 incidents addressed at length in the Human Rights Council Fact-Finding Report.114
139. As of 15 September 2009, when the Human Rights Council Fact-Finding Report was
released, Israel was already investigating 22 of these 34 incidents. The Report brought the
remaining 12 incidents to the IDF’s attention for the first time – 10 of which involved
alleged damage to property and 2 of which involved alleged harm to civilians. The
Military Advocate General promptly referred these 12 additional incidents for
investigation.115
140. The current status of the investigations of incidents discussed in the Human Rights
Council Fact-Finding Report is as follows:
o 11 incidents are the subject of on-going criminal investigations by the MPCID (Part
IV.B above). Two of these investigations were concluded, with no suspicion for
criminal behaviour.

112 During a search of a Palestinian residence, the soldier stole a credit card belonging to one of the
occupants and subsequently used the card to withdraw the equivalent of more than $400. Following his
confession, the soldier served seven and a half months in prison. The Court Martial declared: “The crime
of looting is harmful to the moral duty of every IDF soldier to keep human dignity, a dignity ‘that does not
depend on origin, religion, nationality, sex, status and function.’ Besides, with the commission of the
crime of looting, the accused harmed the ‘combat moral code,’ the spirit of the IDF, in using his power and
his arms not for the execution of his military mission.” Military Prosecutor v. Sergeant A.K., S/153/09 ¶
12 (11 August 2009).
113 As noted above, the Military Advocate General’s decision to close these investigations is subject to
review by the Attorney General and the Supreme Court.
114 The exact number of incidents addressed in the Human Rights Council Fact-Finding Report is unclear.
The Report itself indicates that the Fact-Finding Mission investigated 36 incidents in Gaza. See Human
Rights Council Fact-Finding Report ¶ 16. However, the State of Israel has been able to identify 34
separate incidents in Gaza that are discussed in the Report.
115 As noted earlier, the Military Advocate General recommended a sixth special command investigation to
consider certain incidents discussed in the Human Rights Council Fact-Finding Report. In addition, the
Military Advocate General referred one incident discussed in the Report – alleging the use of a Palestinian
as a human shield – directly for criminal investigation.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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o 7 incidents were investigated as part of the special command investigations (Part
IV.A.1 and Part IV.A.2 above). The Military Advocate General has requested further
review of 2 of these incidents.
o The remaining incidents were subject to regular command investigations (Part IV.A.3
above). Some of these investigations are still ongoing.
141. Regarding certain incidents discussed in the Human Rights Council Fact-Finding Report,
the Military Advocate General has reviewed the entire record and concluded that there
was no basis for a criminal investigation. Some examples are detailed below.
(1) Namar wells group, Salah ad-Din Street, Jabaliyah refugee
camp116
142. When the IDF first learned about the allegations relating to the Namar wells from the
Human Rights Council Fact-Finding Report, it tried to locate the wells (since the Report
does not provide any coordinates). For this purpose, the Israeli Coordination and Liaison
Administration (CLA) asked the Gaza Coastal Municipalities Water Utility (CMWU) to
provide the exact coordinates of the facility.
143. According to the findings of the command investigation, the CMWU provided coordinates
located within a closed military compound of Hamas. This compound served as a
regional command and control center and was used for military training and weapons
storage. Guards manned the entry to the compound and prohibited entry by unauthorized
civilians. The coordinates provided for the wells and the manned entry point to the
compound are illustrated in the following photograph, taken prior to the alleged incident.
► Hamas military compound, with coordinates provided for the Namar wells circled in
red (Source: IDF)

116 See Human Rights Council Fact-Finding Report ¶¶ 975-83.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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144. The IDF attacked the compound on 27 December 2008, at 11:30. All strikes were
accurate. The command investigation further determined that pre-planned attacks, such as
this one, took into account the existence of sensitive sites, including water facilities, inside
or near the intended target, in the decisions whether to attack the target and what
precautions to use. When planning the attack on this specific military target, the IDF
knew of no water facility inside the compound. The IDF did identify a water well 195
metres from the compound and took precautionary measures, which ensured that the well
was not hit or damaged.
145. The command investigation revealed that although the Israeli CLA requests and receives
updates from different sources on sensitive sites inside Gaza, it had no information about
the Namar water wells before the operation. After the Gaza Operation, the CMWU
provided the CLA information about the location of 143 water wells. According to IDF
procedures and practices, had the CLA received such information before the operation, it
would have been immediately reported to all relevant IDF units.
146. The Military Advocate General reviewed the findings of the command investigation,
together with the additional information contained in the Human Rights Council Fact-
Finding Report.
147. The Military Advocate General concluded that the Hamas military compound, where the
Namar wells were located, was a legitimate military target. The Military Advocate
General found that the IDF did not know of the existence of the water wells within the
Hamas military compound and did not direct the strike against the water facilities.
148. The Military Advocate General took note of the fact that standing orders issued
throughout the Gaza Operation strictly forbade any acts damaging water installations.
Moreover, the Military Advocate General found no credible basis for the allegation that
the strike was intended to deprive the civilian population of Gaza of water. To the
contrary, the IDF made significant efforts to ensure that the population of Gaza had a
sufficient and continuous water supply.117
149. Accordingly, the Military Advocate General found no basis to order a criminal
investigation regarding the case.
(2) The Gaza wastewater treatment plant, Road No. 10, al-
Sheikh Ejlin, Gaza City118
150. The IDF first learned of allegations of deliberate attacks of the Gaza wastewater treatment
plant in Sheikh Ejlin from the Human Rights Council Fact-Finding.

117 During the actual fighting, in several instances, the IDF coordinated the movement of the Palestinian
Water Authority (CMWU) maintenance teams to repair water infrastructure (beyond the repairs permitted
during humanitarian windows). Additionally, five trucks of infrastructure supplies, including pumps,
generators, spare parts, and purification kits, were brought into Gaza at the request of the CMWU.
118 See Human Rights Council Fact-Finding Report ¶¶ 962-72.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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151. The command investigation of this incident included the gathering of information from
relevant commanders and officers and from ground and aerial forces. In addition,
investigators received information from the Israeli CLA, which was in direct contact with
Mr. Munther Shublaq, the Director of the CMWU.
152. Initial findings from the investigation were presented to the Military Advocate General,
who asked for several clarifications before reaching his conclusions. The main findings of
the command investigation are as follows.
(i) The date of the incident
153. Based on an analysis of aerial photographs of the wastewater treatment plant from the
relevant days, it was determined that the damage to the facility occurred on 10 January
2009. In an aerial photograph taken that day, the damage to the wall of one of the basins,
as well as the flow of sewage to nearby fields, can be seen for the first time.
► Aerial photograph of wastewater treatment plant in Sheikh Ejlin, 9 January 2009, with
no damage visible (Source: IDF)
GAZA OPERATION INVESTIGATIONS: AN UPDATE
- 40 -
► Aerial photograph of wastewater treatment plant in Sheikh Ejlin, 10 January 2009,
with breach of upper basin marked in red (Source: IDF)
154. The ICRC presented a preliminary report about the basin breach to the Israeli CLA on 12
January 2009. During the following days, the CLA tried to coordinate the arrival of
Gaza’s CMWU teams to address the situation, but these efforts did not succeed due to the
fighting in the area.
155. The Director of Gaza’s CMWU reported to the CLA that 50,000 cubic meters of sewage
leaked from the treatment plant; and that the direction of the leak was towards the
southwest, an agricultural area.
(ii) The possibility of an aerial strike
156. The wastewater treatment plant was not defined, prior to or during the operation, as a
target for an aerial strike. The nearest aerial strike on the relevant dates was 1.3
kilometres away from the plant.
(iii) The possibility of a ground attack
157. Given the characteristics of the damage caused to the basin, it is unlikely that it resulted
from flat-trajectory fire of the IDF. The IDF executed no high-trajectory fire towards the
plant, and the operations logs identify no such target point.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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158. When the armoured forces passed near the plant, during the operation, the basin wall was
already breached and the area surrounding it was flooded, thus limiting the movement of
the forces in that area.
(iv) The possible causes of damage to the basin
159. The Military Advocate General reviewed the findings of the command investigation, in
light of the details provided in the Human Rights Council Fact-Finding Report and the
CMWU report of January 2009, entitled “Damage Assessment Report: Water and Waste
Water Infrastructure and Facilities.”
160. Taking into account all available information, the Military Advocate General could not
definitively rule out the possibility that IDF activity had caused the damage to the wall of
the third basin of the wastewater treatment plant (which probably occurred on 10 January).
At the same time, he could also not dismiss the possibility that the damage to the basin
might have resulted from a deliberate action by Hamas as part of a defensive plan to
hamper the movement of IDF forces in the area.
161. The Military Advocate General was able to determine that this damage did not result from
an intentional and pre-planned IDF attack. In this regard, the Military Advocate General
endorsed the conclusions of the command investigation that the wastewater treatment
plant was not a pre-planned target and that the breaching of the basin wall and the
flooding of the area with sewage significantly limited the maneuverability of IDF ground
forces, especially armoured vehicles, in that area. Moreover, the Military Advocate
General noted that there was no physical evidence or eyewitness testimony to support the
conclusion of the Human Rights Council Fact-Finding Report.
162. Accordingly, the Military Advocate General found no reason to order a criminal
investigation regarding the case.
(3) El-Bader flour mill119
163. With respect to the allegation of deliberate targeting of the el-Bader flour mill, the IDF
conducted a command investigation, which gathered evidence from numerous sources,
including relevant commanders and officers and ground and aerial forces. In addition, the
investigator received information from the Israeli CLA, which was in direct contact with
the owner of el-Bader flour mill, Mr. Rashad Hamada. The command investigation
included several findings, which are delineated below.
164. From the outset of the Gaza Operation, the immediate area in which the flour mill was
located was used by enemy armed forces as a defensive zone, due to its proximity to
Hamas’s stronghold in the Shati refugee camp. Hamas had fortified this area with tunnels
and booby-trapped houses, and deployed its forces to attack IDF troops operating there.
For example, 200 meters south of the flour mill an IDF squad was ambushed by five
Hamas operatives in a booby-trapped house; 500 meters east of the flour mill another

119 See Human Rights Council Fact-Finding Report ¶¶ 913-21.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
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squad engaged enemy forces in a house that was also used for weapons storage; and
adjacent to the flour mill, two booby-trapped houses exploded.
165. The IDF ground operation in this area began on 9 January 2009, during night time. Before
the ground operation, the IDF issued early warnings to the residents of the area, included
recorded telephone calls, urging them to evacuate. Such telephone calls were made to the
flour mill as well.
166. While preparing for the operation, the commanders identified the flour mill as a “strategic
high point” in the area, due to its height and clear line of sight. Nevertheless, in the
planning stage, it was decided not to pre-emptively attack the flour mill, in order to
prevent damage to civilian infrastructure as much as possible.
► El-Bader flour mill, 9 January 2009, prior to alleged incident (Source: IDF)
167. In the course of the operation, IDF troops came under intense fire from different Hamas
positions in the vicinity of the flour mill. The IDF forces fired back towards the sources of
fire and threatening locations. As the IDF returned fire, the upper floor of the flour mill
was hit by tank shells. A phone call warning was not made to the flour mill immediately
before the strike, as the mill was not a pre-planned target.
168. Several hours after the incident, and following a report about fire in the flour mill, the IDF
coordinated the arrival of several fire engines to fight the fire.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
- 43 -
► El-Bader flour mill, 10 January 2009, following alleged incident. Fire trucks are visible
on the scene. (Source: IDF)
169. The Military Advocate General reviewed the findings and the records of the command
investigation and other materials. In addition, the Military Advocate General reviewed the
information included in the Human Rights Council Fact-Finding Report, as well as the
transcript of the public testimony of Mr. Hamada to the Fact-Finding Mission.
170. Taking into account all available information, the Military Advocate General determined
that the flour mill was struck by tank shells during combat. The Military Advocate
General did not find any evidence to support the assertion that the mill was attacked from
the air using precise munitions, as alleged in the Human Rights Council Fact-Finding
Report. The Military Advocate General determined that the allegation was not supported
in the Report itself, nor in the testimony to the Fact-Finding Mission by Rashad Hamada,
who had left the area prior to the incident in response to the IDF’s early warnings.
Photographs of the mill following the incident do not show structural damage consistent
with an air attack.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
- 44 -
► El-Bader flour mill, 11 January 2009, following alleged incident (Source: IDF)
171. The Military Advocate General found that, in the specific circumstances of combat, and
given its location, the flour mill was a legitimate military target in accordance with the
Law of Armed Conflict. The purpose of the attack was to neutralize immediate threats to
IDF forces.
172. The Military Advocate General did not accept the allegation in the Human Rights Council
Fact-Finding Report that the purpose of the strike was to deprive the civilian population of
Gaza of food. In this regard, he noted the fact that shortly after the incident, the IDF
allowed Palestinian fire trucks to reach the area and extinguish the flames, as well as the
extensive amount of food and flour that entered Gaza through Israel during the Gaza
Operation.120
173. Although the Military Advocate General could not conclusively determine that the flour
mill was in fact used by Hamas’s military operatives, there was some evidence of such
use. The Military Advocate General noted that Mr. Hamada testified before the Fact-
Finding Mission that after the operation he found empty bullets on the roof of the flour
mill. This could not have been the result of IDF fire, since – as was evident from the
findings of the command investigation – the IDF forces which occupied the mill’s
compound three days after the incident did not occupy the roof of the mill, where they
would have been exposed to enemy fire.
174. Accordingly, the Military Advocate General found no reason to order a criminal
investigation regarding the case.

120 See The Operation in Gaza: Factual and Legal Aspects ¶¶ 266-82.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
- 45 -
(4) The house of Abu-Askar family121
175. The IDF conducted a command investigation into allegations concerning a deliberate
strike of the residence of Muhammad Abu-Askar. The command investigation gathered
evidence from numerous sources, including relevant commanders and officers, ground and
aerial forces, and aerial photos.
176. According to the findings of the command investigation, the cellar and other parts of Mr.
Abu-Askar’s house were used to store weapons and ammunitions, including Grad rockets.
Furthermore, the area where the house was located was frequently used as a launch area
for rockets aimed at Israeli towns.
177. Before the strike, the IDF made a telephone call to Mr. Abu-Askar’s house warning of the
strike. The call was received by Muhammad Abu-Askar. Following this warning, all
occupants immediately evacuated the premises. Moreover, the attack took place at night,
when fewer civilians were likely to be in the area. There were no civilian casualties from
the strike.
178. Shortly after the strike, two sons of Mr. Abu-Askar, both Hamas military operatives, were
killed while they were involved in launching mortars at IDF forces.122
179. The Military Advocate General reviewed the findings and the entire record of the
command investigation, together with other information on the incident included in the
Human Rights Council Fact-Finding Report. He also reviewed the public testimony given
by Mr. Abu-Askar before the Fact-Finding Mission.
180. The Military Advocate General concluded that due to its use as a large storage facility for
weapons and ammunition, including Grad missiles, the house of Muhammad Abu-Askar
was a legitimate military target. The strike was not directed against the residents of the
house, but rather against the weapons stored in it.123
181. The Military Advocate General further determined that the attack adhered to the IDF’s
obligation to take precautions to minimise incidental loss of civilian life. The
effectiveness of certain precautions – the timing of the attack and the use of warnings –
was evident in the fact that there were no civilian casualties in the incident. The intended
military advantage of eliminating a large stockpile of weapons, including long-range
rockets, exceeded the anticipated harm to civilians.
182. Accordingly, the Military Advocate General found no reason to order a criminal
investigation regarding the case.

121 See Human Rights Council Fact-Finding Report ¶¶ 975-85.
122 The circumstances of this incident were detailed in The Operation in Gaza: Factual and Legal Aspects
¶¶ 336-40.
123 The sole basis for the claim in the Human Rights Council Fact-Finding Report that the house was a
civilian target was Mr. Abu-Askar’s testimony before the Fact-Finding Mission. The Mission, however,
did not ask Mr. Abu-Askar any questions about the potential use of his house for military purposes.

GAZA OPERATION INVESTIGATIONS: AN UPDATE
- 46 -
V. CONCLUSION [ Schlussfolgerung, Zusammenfassung ]
183. The Gaza Operation presented complex challenges to Israel and the IDF. While the need
and obligation to respond effectively to the thousands of Hamas rockets and mortars that
had terrorized Israeli civilians for years was clear and acute, the strategies adopted by
Hamas, and in particular its systematic entrenchment in the heart of civilian areas, created
profound operational dilemmas.
184. These challenges did not end with the close of operations. A key element of respecting
the Law of Armed Conflict is a commitment genuinely to review military operations after
the fact, and thoroughly investigate allegations of unlawful activity. Fulfilling this
commitment in the context of Gaza is demanding, and requires serious efforts to obtain
evidence from battleground situations and to make arrangements to enable residents of
Gaza to give their accounts. It also requires an awareness that, in complex combat
situations, errors of judgment, even with tragic results, do not necessarily mean that
violations of the Law of Armed Conflict have occurred.
185. A further challenge is presented by the scale of the investigations. Because Israel
followed up on every allegation, regardless of whether the source was neutral, hostile, or
friendly, it launched investigations into 150 separate incidents, including 36 criminal
investigations opened thus far. More broadly, the six special command investigations
initiated by the IDF addressed more general concerns that arose in the course of the
fighting. Beyond the disciplinary and criminal proceedings that have been initiated,
operational lessons from these investigations have been incorporated in IDF practice.
186. In this Paper, Israel has sought to share its investigative procedures, and has described the
various mechanisms involved, including those operating independently within the military
system as well as the civilian oversight provided by the Attorney General and the Supreme
Court.
187. Israel recognizes the importance of engaging in dialogue and sharing best practices on the
conduct of investigative proceedings with other democratic states facing similar
challenges and committed to upholding the rule of law.

Quelle: Israelische Botschaft

UN Fact Finding Mission on Gaza

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 The "clash of civilizations" thesis is a gimmick like The War of the Worlds, better for reinforcing defensive self-pride than for critical understanding of the bewildering interdependence of our time.

Prof. Edward Said
(Publizist, Orientalist. Gegen die vereinfachenden Thesen aus Huntingtons "Kampf der Kulturen")

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