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The Operation in Gaza 27 December 2008 – 18 January 2009

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THE OPERATION IN GAZA 27 DECEMBER 2008 – 18 JANUARY 2009 FACTUAL AND LEGAL ASPECTS THE OPERATION IN GAZA: JULY 2009 The State of Israel THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS TABLE OF CONTENTS Page I. EXECUTIVE SUMMARY ................................................................................................................ 1 II. INTRODUCTION .............................................................................................................................. 5 III. THE APPLICABLE LEGAL FRAMEWORK ................................................................................. 10 IV. THE CONTEXT OF THE OPERATION ......................................................................................... 14 A. The Ongoing Armed Conflict with Hamas .......................................................................... 14 B. Hamas‘ Increasing Attacks on Israel During 2008 .............................................................. 15 C. Israel‘s Right and Obligation to Defend Itself and Its Citizens from Attack ....................... 26 D. Hamas‘ Military Capabilities in Gaza .................................................................................. 28 E. Stages of the Operation ........................................................................................................ 32 V. THE USE OF FORCE ...................................................................................................................... 35 A. The Legal Framework .......................................................................................................... 35 (1) The Principle of Distinction .................................................................................... 36 (a) The Obligation Not to Target the Adversary‘s Civilians ........................... 36 (b) The Obligation of Parties to an Armed Conflict Not to Jeopardise Their Own Civilians ............................................................................................ 42 (2) The Principle of Proportionality ............................................................................. 44 (a) The Obligation to Weigh Military Objectives Against Incidental Civilian Harm ............................................................................................ 44 (b) The Obligation of Attacking Forces to Take Feasible Precautions to Minimise Incidental Civilian Harm ........................................................... 48 (c) The Parallel Obligation of Those Controlling Territory to Minimise Civilian Casualties ..................................................................................... 51 B. Hamas‘ Breaches of the Law of Armed Conflict and War Crimes...................................... 52 (1) Deliberate Rocket Attacks Against Israeli Population Centres .............................. 52 (2) Abuse of Civilian Sites as Cover for Military Operations ...................................... 55 (a) Staging of Attacks From Residential Areas and Protected Sites ............... 56 (b) Use of Civilian Homes and Public Institutions as Bases of Operation ...... 60 -i- THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS (3) Misuse of Medical Facilities and Ambulances ....................................................... 64 (4) Booby-trapping of Civilian Areas ........................................................................... 67 (5) Blending in with Civilians and Use of Human Shields .......................................... 69 (6) Exploitation of Children ......................................................................................... 70 (7) Interference with Humanitarian Relief Efforts ....................................................... 71 C. IDF‘s Conduct of the Operation and Procedures to Ensure Compliance with International Law ................................................................................................................. 76 (1) IDF Training and Legal Supervision ...................................................................... 77 (a) The IDF‘s Training System and Legal Supervision .................................. 77 (b) Comparison with Other Systems of Training and Supervision.................. 80 (2) IDF Rules of Engagement During the Gaza Conflict ............................................. 82 (3) IDF Pursuit of Legitimate Military Targets During the Gaza Conflict ................... 85 (a) Targeting of Hamas Terrorist Infrastructure .............................................. 86 (b) Targeting of Terrorist Operatives .............................................................. 89 (4) IDF Precautions During the Gaza Conflict ............................................................. 95 (a) Precautions Regarding Targeting and Munitions ...................................... 95 (b) Advance Notice to Civilians ...................................................................... 99 (c) Humanitarian Efforts ............................................................................... 100 (5) Israel‘s System for Investigating Complaints ....................................................... 107 (a) The Military Justice System .................................................................... 107 (b) Attorney General Review of Decisions of the Military Advocate General ..................................................................................................... 111 (c) Supreme Court of Israel Judicial Review of Decisions of the Military Advocate and Attorney General .............................................................. 111 (d) Comparisons with Other Investigatory Systems ...................................... 114 D. Complaints About the IDF‘s Conduct of Operations......................................................... 117 (1) The Status of Investigations .................................................................................. 118 (2) Complaints about Specific Incidents .................................................................... 124 -ii- THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS (a) Incidents Involving Harm to U.N. and International Facilities ................ 125 (i) UNRWA School in Jabaliya (Fahoura School): 6 January 2009 128 (ii) UNRWA Field Office Compound: 15 January 2009 .................. 129 (iii) UNRWA Bureij Health Centre ................................................... 131 (iv) UNSCO Gaza Compound: 29 December 2008 .......................... 132 (v) UNRWA Asma Elementary School: 5 January 2009 ................. 133 (vi) UNRWA School: Beit Lahia Elementary School: 17 January 2009 .................................................................. 134 (vii) UNRWA Vehicle Convoy: 8 January 2009 ................................ 135 (viii) UNRWA Vehicle: 14 January 2009 .......................................... 136 (b) Incidents Involving Medical Facilities, Vehicles and Personnel ............. 136 (i) Medical Facilities ........................................................................ 138 (ii) Medical Vehicles ........................................................................ 139 (iii) Medical Personnel ...................................................................... 140 (c) Incidents Involving Multiple Civilian Casualties .................................... 140 (i) The Al-Daia Family Residence, Zeitun Neighbourhood: 6 January 2009 ..................................................... 141 (ii) The House of Nazar Ri‘an: 1 January 2009 ................................ 141 (iii) The House of Dr. Abu el Eish: 17 January 2009 ........................ 142 (iv) Attack on Truck Carrying Oxygen Tanks: 29 December 2008 .. 144 (v) Alleged Attacks on Mosques ...................................................... 144 (3) General Concerns about IDF Operations .............................................................. 145 (a) The Use of Munitions Containing White Phosphorous and Flechettes ... 145 (i) Use of Munitions Containing White Phosphorous ..................... 145 (a) International Law Applicable to the Use of Incendiary Weapons ..................................................................................... 147 (b) Compliance With the Principle of Distinction ............................ 148 (c) Compliance with the Duty to Minimise the Risk to Civilians .... 148 -iii- THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS (d) Compliance With the Principle of Proportionality ..................... 149 (e) Investigations and Lessons Learned ........................................... 151 (ii) The Use of Munitions Containing Flechettes ............................. 152 (b) Destruction of Private Property ............................................................... 153 VI. CONCLUSION ............................................................................................................................... 156 VII. INDEX OF TERMS ........................................................................................................................ 158 -iv- THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS I. EXECUTIVE SUMMARY 1. This detailed Paper discusses a range of factual and international legal issues relating to the military operation undertaken by the Israel Defence Forces (―IDF‖) in Gaza in December 2008–January 2009 (the ―Gaza Operation‖). 2. The Paper has been prepared at this time in order to place the Gaza Operation in its proper factual and legal context. On a number of issues the Paper offers only a provisional analysis as the IDF is still conducting comprehensive
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