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The Israeli Defense Force (IDF) claims vast military gains from its targeting of hundreds of sites in Gaza, including substantial civilian property, during “Operation Pillar of Cloud,” the intensive 8-day bombing the IDF initiated on November 14, 2012. But Palestinian witnesses deny that fighters were present or that rockets had been or were being launched from many of the sites the IDF bombed. Palestinian witnesses also deny the claims of any other military advantage to Israel from the attacks. They say the intent of Israeli political and military leaders was to do exactly what Israeli forces actually did: destroy civilian property and punish and traumatize the civilian population of Gaza.

Writing in the Jerusalem Post last March, Yaakov Katz reported the IDF desire “to do some periodic ‘maintenance work’ in Gaza and to mow the lawn, so to speak, with regard to terrorism, with the main goal of boosting its deterrence.” Thus, the IDF graphically admitted the political goal that requires periodic attacks, destroying Palestinian civilian property, and killing Palestinian civilians.

Evidence was collected by members of a US and UK delegation who were in Gaza from November 27 to December 3. Members viewed destruction throughout the Gaza Strip and interviewed Palestinian witnesses. They found substantial evidence of violation of international humanitarian law with regard to attacks on civilians and civilian property.

An independent and impartial investigation and prosecution is needed to establish the guilt or innocence of those responsible. The prosecutor of the International Criminal Court (ICC) or, if that approach is blocked, another tribunal established by the General Assembly under Article 22 of the UN Charter, may initiate such an investigation. If the investigation shows evidence of violations, the perpetrators should be prosecuted–including those Israeli political and military leaders who ordered the violations. Otherwise their immunity is likely to allow further violations.

Not waiting for the ICC to initiate its investigation, the Palestine Center for Human Rights is calling for establishment of a commission composed of prominent attorneys and jurists to conduct a thorough fact-finding investigation in the coming weeks and issue a report on its findings.

International humanitarian law

International humanitarian law (IHL) establishes rules for armed conflict and military occupation with the purpose of minimizing civilian suffering and casualties.

These rules apply to a country engaged in an occupation of territory not its own. They apply to states and non-states alike. Thus, the rules apply to both Israeli and Palestinian military forces in territory occupied by Israel, including the Gaza Strip. Although Israel withdrew its illegal settlers from Gaza in 2005, Israeli military forces retain control over the territory, including its airspace and its land and sea borders. The Israeli military conducts periodic military operations with drones and F-16s and conducts military incursions on a regular basis. Israeli naval forces regularly intercept and shoot at Palestinian fishermen. Israeli forces along the border regularly shoot at farmers attempting to work their land in Gaza along the border with Israel.

As occupying power, the rules provide Israel with an obligation to protect Palestinian civilians and Palestinian civilian property. While the Israel government may use police power to preserve order and protect its own population, its right to use military force in occupied territory is restricted, as described in an article by Noura Erakat, “No, Israel Does Not Have the Right to Self-Defense In International Law Against Occupied Palestinian Territory.”

The rules protect not just civilians but also civilian property and other civilian infrastructure. Under the rules, a civilian building or other civilian property might conceivably be a legitimate military target–but only if it is being used for a military purpose and no other method is possible. Each such facility must be assumed to be civilian object–and therefore off limits as a military target–unless and until evidence is shown that the building is actually being used for a military purpose and that the attack is a military necessity.

For example, the Hague Convention IV of 1907 regarding the Laws and Customs of War on Land provides in Article 23, “it is especially forbidden . . .(g) To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” Article 25 provides, “ The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”

In its advisory opinion on the wall, the International Court of Justice found that the Fourth Geneva Convention was applicable to occupied Palestinian territory. The convention provides in Article 53: “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” Although Israeli withdrew its illegal settlers in 2005, Gaza is still considered under the control of Israel and remains occupied territory.

Even if evidence is found that a building is being used for a military purpose and the attack is the only way to accomplish the military objective, an attack on the building is still unlawful if the injuries to civilians or damage to civilian infrastructure is expected to be disproportionate to the anticipated military advantage from the attack. The principle is part of customary law that applies to all nations. Protocol I of the Geneva Convention defines this requirement:

“With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: . . . (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

Ownership or use of a building by a government or by a semi-governmental authority that is engaged in military combat is not sufficient to legitimize an attack. The criteria of actual military use, necessity, and proportionality must be met before any attack on the building can be launched. Otherwise the attack violates International Humanitarian Law.

Government buildings were closed and evacuated

Government authorities in Gaza ordered all government buildings, including ministries, police stations, schools, and other facilities, closed and evacuated as Israeli military actions escalated around the time an Israeli rocket extra-judicially executed the leader of the military wing of the Hamas movement, Ahmed al Ja’bari and his bodyguard on November 14. The closure of government facilities extended even to prisoners locked up in a jail at one police station in Gaza City visited by one of the authors–the prisoners were all released and told to return when the Israeli attacks ended and a real cease fire was in place.

Police stations and government ministries and offices are not inherently legitimate military targets. Police and most government officials are civilians, regardless of their political views, religious affiliation, or party affiliation. If a police station or a government building is not being used for military purposes, an attack on the police station or ministry is a violation of international humanitarian law.

Furthermore, collective punishment of civilians and reprisals against civilians and civilian property are both forbidden by international humanitarian law. The Fourth Geneva Convention provides in Article 33: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. . . Reprisals against protected persons and their property are prohibited.”

Thus, the civilian population may not be punished by loss of a building or other civilian infrastructure because of the acts of certain resistance fighters. The attack on the building can only be justified if the attack is to accomplish a present and necessary military objective and the military advantage from the attack outweighs damage to civilians and civilian property.

Israeli Defence Force explains its attack on Government Buildings

The Israeli Defense Force web site provides a day-by-day and hour-by-hour report of actions it undertook in Gaza from November 14 to 21. The site reports on November 17 at 8:55am that “as part of the IDF targeting of government buildings, [Prime Minister] Ismail Haniya’s headquarters, the Hamas Ministry of Interior, and the Hamas police compound, were targeted.”

The IDF website recorded a statement issued by the IDF’s spokesperson, Brig. Gen. Yoav (Poly) Mordecai on November 17 at 9:10am, who said, “the IDF struck buildings belonging to the Hamas government. Ismail Haniyeh’s headquarters, which serve as the headquarters for the Hamas government, was destroyed in a strike. Additionally, the Hamas’ police headquarters and the homeland security headquarters in Gaza City were also targeted.”

On November 21 at 7:14am the IDF website reported that “The targets included the Ministry of Internal Security – which served as one of the main command and control centers for the Hamas terror organization.”

Our observation in Gaza confirms that the Israeli military attacked and completely destroyed the Ministry of Interior, the Prime Minister’s government building, and several police stations. We also observed severe damage to the Ministry of Health, located near the Ministry of Interior. The damage to the Ministry of Health was not mentioned by the IDF website.

The Interior Ministry was converted to rubble, with craters about 15 feet deep and about 40 feet across in several places from the bombs dropped. In addition to the Health Ministry, buildings across streets on two sides, including one housing a travel agency and a bank, had all facing windows destroyed among other severe damage. The Israeli bombs also killed or wounded civilians in the neighborhood.

The building housing the Prime Minister’s office was also converted to rubble. Adjacent residences were severely damaged.

Palestinian witnesses we interviewed denied that either the Interior Ministry or Prime Minister Haniyeh’s office was being used in any way at all, as all government buildings, including both of these, had been closed and evacuated. If true that the buildings were closed, evacuated, and not being used in anticipation of Israeli strikes, the reasons given for the attacks on the IDF web site do not fully explain how the buildings could have been used for military purposes during the time Israel was conducting its military operations.

The IDF explains its attacks on residential housing

The IDF website also mentions Israeli air force attacks that destroyed or damaged residential housing. On November 17 at 7:10pm it reports that GOC Southern Command Maj. Gen. Tal Russo addressed the media stating, “Most of the weaponry of the terror organizations is stored in residential houses, from which they launch the missiles and the rockets against Israel.”

Similarly, on November 19 at 7:10am the IDF website reports, “The IDF targeted buildings owned by senior terrorist operatives, used as command posts and weapon storage facilities.”

On November 20 at 6:40 am, the website reports, “We also struck the house of several senior officers within the terror organizations, of the rank of company commander and battalion commander.”

Delegation members visited with Wallid Al Nasassra, a neighbor of one of the 55 houses destroyed by IDF bombs during Operation Pillar of Cloud. An F-16 rocket targeted a home 200 yards away in which his brother, Teewfiq Mamduh Id Abid, Teewfiq’s wife, Amani Ibrm Qader, and 10 of Teewfiq’s children were living. Two of the children were killed in this attack and 7 children were injured. Only one of the children escaped uninjured. The witness’s brother and his wife were both severely injured. The Al Nasassra area is between Rafah and Khan Younis, on land evacuated by Israeli settlers in 2005. Wallid Al Nasassra denied that rockets were stored in the demolished home or that the owners were in any way associated with fighters. Nor, he said, were any of the neighboring homes used for storing rockets. He also said that neighbors would not permit fighters to be in the vicinity of their homes. Israeli forces have so far released no evidence supporting their assertion of rocket storage at this or other residences they destroyed.

Similarly, the attack on the houses of several senior officers would only be legitimate if military activity was being conducted in the houses, the attack on the houses was the only way to accomplish the military goal, and if the military advantage from the attack was not outweighed by damage to civilians and civilian property. Nothing in the IDF report indicated whether the houses of the senior officers contained women and children and whether the senior officers who supposedly were the targets were at home during the attacks.

The IDF explains its attacks on a football stadium

The IDF website quotes IDF Spokesperson Brig. Gen. Yoav (Poly) Mordechai on November 19 at 1:40pm stating: “we attacked a stadium in Gaza City after receiving verified information of a launch from within the stadium, again showing the terrorists’ continued use of civilian centers.” On November 19, @IDFSpokesperson posted this message on Twitter: “3 days ago, Palestinian terrorists used a stadium to fire rockets to Tel Aviv & Jerusalem. We targeted site this morn.” The post included a map with X marking two spots within the stadium from which the IDF says rockets were fired 3 days earlier.

However, a Palestinian witness at the site denied that any rockets were launched. Large craters are found adjacent the goals at both ends of the football field as if the F-16 pilot was aiming for scoring goals with his bombs rather than quenching rocket fire. Bombs also hit seating areas of the stadium. No fighters were reported hit by any of the Israeli bombs striking the stadium. The IDF so far has not released evidence supporting their assertion of rocket firing from the stadium. Israeli forces did not explain how they could wait 3 days to attack the site while still claiming that bombing the stadium provided military advantage and remained a military necessity. The necessity argument is further diminished by the lack of IDF explanation as to how cratering the field in two places, rendering it unusable for football, would prevent, rather than encourage, its future use as a site for launching rockets, if indeed the IDF actually has evidence to prove it ever was a launch site.

The IDF explains its attacks on a financial institution

The IDF website reports on November 20 at 6:40 am, “A financial institution used by Hamas to fuel its terror activity was targeted in the northern Gaza Strip.” At 9:30 that morning Brig. Gen. Mordecai said, “During the night we attacked and hit one hundred targets, including a financial center controlled by Hamas.

While the financial institution may have been engaged in financial activity that the IDF objected to, the IDF justified its attack exclusively based on its financial activity rather than based on any military activity taking place at the financial institution.

The IDF position that a financial institution is a legitimate military target if engaged in financing an organization considered to be an enemy is likely to concern Israelis who may wonder whether their own financial institutions may now become legitimate military targets if they have financial transactions with the Israeli government, settlers, or other occupation authorities. The Israeli justification may also surprise large numbers of Americans who believe that the World Trade Center in New York–which housed financial institutions–was not a legitimate military target.

In the case of the financial institution, the IDF statement that it attacked this civilian property because of its financial activity appears to be an admission of a plan or policy to attack civilian property without regard to the requirements of military objective and military necessity.

In a report on November 17, the BBC reported, “The army told the BBC it wanted to hit hundreds more [targets] and that it was legitimate to target anything connected with Hamas.” Thus, Israeli military officials further admitted plan or policy to base its targeting outside the requirements of international humanitarian law.

According to the Palestine Center for Human Rights weekly report for November 14-21, the Israeli Occupation Forces carried out 1350 air strikes in which 1400 missiles were launched during the 8-day assault on Gaza: 55 houses were completely destroyed and hundreds of houses sustained damage. 2 mosques were completely destroyed and 34 others were damaged. 8 government establishments, 13 security offices and police stations, and 2 bridges connecting the central Gaza strip with the north were destroyed. 6 media offices, 6 health institutions, 28 educational institutions, and 22 civil and charity associations were targeted. And dozens of agricultural lands sustained big damage.

PCHR states that 168 Palestinians, including 100 civilians were killed by the Israeli military. Among the civilians killed were 35 children, 14 women, and 2 journalists. 1288 Palestinians were wounded including 1261 civilians. Among the civilians wounded were 466 children, 219 women, and 10 journalists.

While in Gaza, the authors visited sites including the government Interior Ministry and the adjacent Health Ministry, the office of the prime minister, a police station, a soccer stadium, a sports facility, and the Islamic bank. Palestinian sources maintain that no fighters were present and no rockets were fired from any of these places and thus they were not legitimate military targets.

The IDF site does not explain its attacks on a sports facility

An F-16 dropped bombs on a building in Gaza City that housed the AlJazeera Club and the Islamic Bank. Housed on the second floor of a four story building, the Al Jazeera Club is a sports facility for athletes, girls and boys, and disabled people of all ages. It particularly includes facilities to help the disabled and rehabilitate them physically and socially and to integrate them into other segments of society. Two members of the Al Jazeera Club represented Palestine at the London paralympic games. One member won a Gold medal in javelin at the Asian Paralympic Games in 2010. The Club is the only sports facility for the disabled in Gaza. The Club is also one of few places in Gaza that encourages girls and women to participate in sports. The bombs completely destroyed the entire Club facility.

The Islamic Bank, located on the ground floor just below the Club, was also completely destroyed, leaving a large crater in its floor. As other banks in Gaza were also targeted, Palestinians think that destroying the bank was the target of the attack.

Two floors of unfinished new construction were located above the Club.

According to PCHR, no fighters were in or near the building. No rockets were being launched. No activity of any kind was in the building, as it had been evacuated. The building could therefore not have been a legitimate military target.

A building next door was also completely destroyed making seven families homeless. The IDF has identified no military objective that outweighs the destruction of the building, the Al Jazeera Club, the Islamic Bank, and the residential building next door. Thus, the attack could also be considered disproportionate.

In the cases investigated, Israel’s destruction of civilian property appears to have provided no military advantage. Damage to civilian property was disproportionate and the IDF website admits that some of the attacks were in reprisal. In all of the cases reported here, interviewees reported that no Palestinian fighters were in the property bombed by Israeli forces. Consequently military necessity does not appear to be available.

Further investigation is needed into the apparent violations. The International Criminal Court should conduct the investigation or, if the ICC fails to do so, an International Criminal Tribunal for Israel should be established by the UN General Assembly as a ‘subsidiary organ’ under U.N. Charter Article 22 to conduct the investigation. The ICC or the tribunal should prosecute Israel’s top generals and other military and political leaders if the investigation confirms the violations.

Israel’s “Pillar of Cloud” follows Israel’s “Operation Cast Lead” by less than four years. Immunity and impunity continue–despite the findings of the UN Goldstone Report. If that immunity and impunity is allowed to continue further violations are inevitable.

James Marc Leas and Theresa McDermott participated in the US and UK emergency delegation to Gaza November 27 to December 3. James, from S. Burlington Vermont, is a co-chair of the National Lawyers Guild Free Palestine Subcommittee. Theresa, from Edinburgh Scotland, participated in two of the voyages to Gaza with the Free Gaza Movement