Executive summary - Résumé - Резюме - Resumen - Arabic - Chinese (PDF)
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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 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.
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 during the period from 27 December 2008 and 18 January 2009 and the links between these operations and overarching Israeli policies vis-а-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 in gathering information and seeking views. Information-gathering methods included: (a) the review of reports from different sources; (b) 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 with Israeli victims and to the West Bank to meet with 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 made taking into consideration the Mission's assessment of the credibility and reliability of the witnesses it met, verifying sources and methodology used in reports and documents produced by others, cross-referencing the relevant material and information, and assessing whether, in all the circumstances, there was sufficient information of a credible and reliable nature 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 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.
The Occupied Palestinian Territory: the Gaza Strip
1. The Blockade
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 others to meet the humanitarian needs of the population of the Gaza Strip without qualification.
30. Statistics about Palestinians who lost their life during the military operations vary. Based on extensive field research, non-governmental organizations place the overall number of persons killed between 1,3 87 and 1,417. The Gaza authorities report 1,444 fatal casualties. The Government of Israel provides a figure of 1,166. The data provided by non-governmental sources with regard to the percentage of civilians among those killed are generally consistent and raise very serious concerns with regard to the way Israel conducted the military operations in Gaza.
31. According to the Government of Israel, during the military operations there were 4 Israeli fatal casualties in southern Israel, of whom 3 were civilians and one soldier, killed by rockets and mortars attacks by Palestinian armed groups. In addition, 9 Israeli soldiers were killed during the fighting inside the Gaza strip, 4 of whom as a result of friendly fire.
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. The overall around 240 policemen killed by Israeli forces constitute more than one sixth of the Palestinian casualties. The circumstances of the attacks and the Government of Israel July 2009 report on the military operations clarify 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 ground. The Mission accepts that there may be individual members of the Gaza police that were at the same time members of Palestinian armed groups and thus combatants. It concludes, however, that the attacks against the police facilities on the first day of the armed operations failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and members of the public who would inevitably have been present or in the vicinity), and therefore violated international humanitarian law.
36. Although the situations investigated by the Mission did not establish the use of mosques for military purposes or to shield military activities, it cannot exclude that this might have occurred in other cases. The Mission did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities and that ambulances were used to transport combatants or for other military purposes. On the basis of its own investigations and the statements by UN officials, the Mission excludes that Palestinian armed groups engaged in combat activities from UN facilities that were used as shelters during the military operations. The Mission cannot, however, discount the possibility that Palestinian armed groups were active in the vicinity of such UN facilities and hospitals. While the conduct of hostilities in built-up areas does not, of itself, constitute a violation of international law, Palestinian armed groups, where they launched attacks close to civilian or protected buildings, unnecessarily exposed the civilian population of Gaza to danger.
38. The Mission also examined the precautions taken by Israeli forces in the context of three specific attacks they launched. On 15 January 2009, the UNRWA field office compound in Gaza City came under shelling with high explosive and white phosphorous munitions. The Mission notes that the attack was extremely dangerous, as the compound offered shelter to between 600 and 700 civilians and contained a huge fuel depot. The Israeli forces continued the attack over several hours in spite of having been fully alerted to the risks they created. The Mission concludes that Israeli armed forces violated the customary international law requirement to take all feasible precautions in the choice of means and method of attack with a view to avoiding and in any event minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects.
39. The Mission also finds that, on the same day, the Israeli forces directly and intentionally attacked the Al Quds Hospital in Gaza City and the adjacent ambulance depot with white phosphorous shells. The attack caused fires which took a whole day to extinguish and caused panic among the sick and wounded who had to be evacuated. The Mission finds that no warning was given at any point of an imminent strike. On the basis of its investigation, the Mission rejects the allegation that fire was directed at Israeli forces from within the hospital.
40. The Mission also examined the intense artillery attacks, again including white phosphorous munitions, on Al Wafa hospital in eastern Gaza City, a facility for patients receiving long-term care and suffering from particularly serious injuries. On the basis of the information gathered, the Mission found a violation of the prohibition of attacks on civilian hospitals in the cases of both hospitals. The Mission also highlights that the warnings given by leaflets and pre-recorded phone messages in the case of Al Wafa hospital demonstrate the complete ineffectiveness of certain kinds of routine and generic warnings.
42. In drawing its legal conclusions on the attack against al-Fakhura junction, the Mission recognizes that for all armies proportionality decisions, weighing the military advantage to be gained against the risk of killing civilians, will present very genuine dilemmas in certain cases. The Mission does not consider this to be such a case. The firing of at least four mortar shells to attempt to kill a small number of specified individuals in a setting where large numbers of civilians were going about their daily business and 1,368 people were sheltering nearby cannot meet the test of what a reasonable commander would have determined to be an acceptable loss of civilian life for the military advantage sought. The Mission considers thus the attack to have been indiscriminate in violation of international law, and to have violated the right to life of the Palestinian civilians killed in these incidents.
44. These incidents indicate that the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal fire against the civilian population. The Mission found strong corroboration of this trend emerging from its fact-finding in the testimonies of Israeli soldiers collected in two publications it reviewed.
45. The Mission further examined an incident in which a mosque was targeted with a missile during the early evening prayer, resulting in the death of fifteen, and an attack with flechette munitions on a crowd of family and neighbours at a condolence tent, killing five. The Mission finds that both attacks constitute intentional attacks against the civilian population and civilian objects.
46. From the facts ascertained in all the above cases, the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killings and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility. It also finds that the direct targeting and arbitrary killing of Palestinian civilians is a violation of the right to life.
47. The last incident concerns the launch of a bomb on a house resulting in the killing of 22 family members. Israel's position in this case is that there was an "operational error" and that the intended target was a neighbouring house storing weapons. On the basis of its investigation, the Mission expresses significant doubts about the Israeli authorities' account of the incident. The Mission concludes that, if indeed a mistake was made, there could not be said to be a case of wilful killing. State responsibility of Israel for an internationally wrongful act, however, would remain.
49. While the Mission is not in a position to state with certainty that so-called dense inert metal explosive (DIME) munitions were used by the Israeli armed forces, it did receive reports from Palestinian and foreign doctors who operated in Gaza during the military operations of a high percentage of patients with injuries compatible with their impact. DIME weapons and weapons armed with heavy metal are not prohibited under international law as it currently stands, but do raise specific health concerns. Finally, the Mission received allegations that depleted and nondepleted uranium were used by Israeli forces in Gaza. These allegations were not further investigated by the Mission.
51. The chicken farms of Mr. Sameh Sawafeary in the Zeitoun neighbourhood south of Gaza City reportedly supplied over 10 per cent of the Gaza egg market. Armoured bulldozers of the Israeli forces systematically flattened the chicken coops, killing all 31,000 chickens inside, and destroyed the plant and material necessary for the business. The Mission concludes that this was a deliberate act of wanton destruction not justified by any military necessity and draws the same legal conclusions as in the case of the destruction of the flour mill.
52. Israeli forces also carried out a strike against a wail of one of the raw sewage lagoons of the Gaza Waste Water Treatment Plant, which caused the outflow of more than 200,000 cubic metres of raw sewage into neighbouring farmland. The circumstances of the strike on the lagoon suggest that it was deliberate and premeditated. The Namar Wells complex in Jabalya consisted of two water wells, pumping machines, a generator, fuel storage, a reservoir chlorination unit, buildings and related equipment. All were destroyed by multiple air strikes on the first day of the Israeli aerial attack. The Mission considers it unlikely that a target the size of the Namar Wells could have been hit by multiple strikes in error. It found no grounds to suggest that there was any military advantage to be had by hitting the wells and noted that there was no suggestion that Palestinian armed groups had used the wells for any purpose. Considering that the right to drinking water is part of the right to adequate food, the Mission makes the same legal findings as in the case of the Al Bader flour mill.
53. During its visits to the Gaza Strip, the Mission witnessed the extent of the destruction of residential housing caused by air strikes, mortar and artiiiery 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 other cases, the facts gathered by the Mission strongly suggest that the destruction of housing was carried out in the absence of any link to combat engagements with Palestinian armed groups or any other effective contribution to military action. Combining the results of its own fact finding on the ground with UNOSAT imagery and the published testimonies of Israeli soldiers, the Mission concludes that, in addition to the extensive destruction of housing for so-called "operational necessity" during their advance, the Israeli forces engaged in another wave of systematic destruction of civilian buildings during the last three days of their presence in Gaza, aware of the imminence of withdrawal. The conduct of the Israeli forces in this respect violated the principle of distinction between civilian and military objects and amounted to the grave breach of "extensive destruction ... of property, not justified by military necessity and carried out unlawfully and wantonly". Israeli forces further violated the right to adequate housing of the families concerned.
54. The attacks on industrial facilities, food production and water infrastructure investigated by the Mission are part of a broader pattern of destruction, which includes the destruction of the only cement packaging plant in Gaza (the Atta Abu Jubbah plant), the Abu Eida factories for ready-rnix concrete, further chicken farms and the Al Wadia Group's foods and drinks factories. The facts ascertained by the Mission indicate that there was a deliberate and systematic policy on the part of the Israeli armed forces to target industrial sites and water installations.
57. From the facts gathered, the Mission finds that there were numerous violations of international humanitarian law and human rights law 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 sand pits in which Palestinian men, women and children were detained. Israeli tanks and artillery positions were located inside the sand pits 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 emerged clearly also in many cases discussed in other parts of 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 the treatment of these civilians constitutes the infliction of a collective penalty on those persons and amounts to measures of intimidation and terror. Such acts are grave breaches of the Geneva Conventions and constitute a war crime.
62. The tactics used by Israeli military 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 the 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 resort to reprisals. The Mission is of the view that reprisals against civilians in armed hostilities are contrary to international humanitarian law.
66. In this precarious situation, the military operations destroyed a substantial part of the economic infrastructure. As a large part of the factories were targeted and destroyed or damaged, poverty, unemployment and food insecurity further increased dramatically. The agricultural sector similarly suffered due to the destruction of agricultural land, water wells and fishing boats during the military operations. The continuation of the blockade impedes the reconstruction of the economic infrastructure destroyed.
67. As a result of the razing of farmland and destruction of greenhouses, food insecurity is expected to further worsen in spite of 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 already before the military operations. The hardship caused by the extensive destruction of shelter (UNDP reported 3,354 houses completely destroyed and 11,112 partially damaged) and resulting displacement particularly affects children and women. In the water and sanitation sector, the destruction of infrastructure (such as the destruction of the Namar wells and the attack against the water treatment plant described in Chapter XIII), aggravated the preexisting situation. Already before the military operations, 80 percent of the water supplied in Gaza did not meet the WHO's standards for drinking water. The discharge of untreated or partially treated waste water 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 the influx of patients with life-threatening injuries. Patients with hostilities-related injuries had often to be discharged as early as possible 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 due 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 their loved ones. Doctors of the Gaza Community Mental Health Programme gave information to the Mission on psychosomatic disorders, on a wide spread state of alienation in the population, and on "numbness" as a result of severe loss. They told the Mission that these conditions were likely to in turn increase the readiness to embrace violence and extremism. They also told the Mission that 20 percent of children in the Gaza Strip suffer Post Traumatic Stress Disorders.
70. Children's learning difficulties of psychological origin are compounded by the impact of the blockade and the military operations on the education infrastructure. 280 schools and kindergartens were destroyed in a situation in which already restrictions on the importation of construction materials meant that many school buildings were in serious need of repair.
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 resulting from 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 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 among widowed women and their inlaws.
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, however, was insufficient to meet the needs of the population even before hostilities started, and has again decreased after 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 it has as Occupying Power 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 Israeli armed forces of private residential houses, water wells, water tanks, agricultural land and greenhouses there was a specific purpose of denying them for their 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 the rights of 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 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 a court of law and an effective remedy, 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.
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 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.
80. The Mission gathered first-hand information on five cases of Fatah affiliates detained, killed or subject to physical abuse by members of 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.
82. A consequence of lsrael'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 with representatives of human rights organizations, members of the Palestinian legislature and community leaders. It heard experts, witnesses and victims in the public hearings, interviewed affected individuals and witnesses and reviewed video and photographic material.
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, as compared to disturbances where Israelis are present. This raises serious concern with regard to discriminatory policies vis-а-vis Palestinians. Eye-witnesses also reported to the Mission 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 Israeli authorities to investigate, prosecute and punish violence against Palestinians by settlers and members of security forces, including killings, 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.
87. The Mission focussed 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 increased compared to the same period in 2008. Many children were reportedly arrested on the street and/or during demonstrations in the West Bank during the Gaza operations. Numbers 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-а-vis the Palestinians since 2005 has been the arrest of persons affiliated with Hamas. A few months before the Palestinian Legislative Council (PLC) elections in 2005, Israel arrested numerous persons who had been involved in municipal or PLC elections. Following the capture by Palestinian armed groups of Israeli soldier Gilad Shalit in June 2006, the Israeli army arrested some 65 members of the PLC, 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 Gaza military operations. The detention of the PLC members has meant that the PLC 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 PLC members may amount to collective punishment contrary to international humanitarian law.
93. The Mission has received reports that, during the Israeli offensive in Gaza, movement restrictions in the West Bank were tightened. Israel imposed a "closure" on the West Bank for several days. Additionally there were a greater number of 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 deepened its hold on the West Bank through an increased level of expropriation, an increased number of house demolitions, demolition orders and of permits granted for homes built in settlements, and increased 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 to be built 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 be doubled.
96. The Mission believes that the movement and access restrictions to which West Bank Palestinians are subject are disproportionate to any military objective served, in general, and more so in relation to the increased restrictions during and to some extent after the military operation in Gaza. In addition, the Mission is concerned about the steps taken recently to formalise the separation between Gaza and the West Bank, and as such between two parts of the OPT.
98. Allegations were also received in relation to the use of excessive force and 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.
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 PA executive. The executive has passed a number of decrees and regulations to enable its day to day functioning.
100. Other allegations include the arbitrary closure of Hamas and other Islamic groupsaffiliated charities and associations or the revocation and non-renewal of their licenses, the forcible replacement of board members of lslamic 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 means the exclusion of Hamas supporters or affiliates from public sector appointment.
102. The Mission is of the view that the reported measures are inconsistent with the Palestinian Authority's obligations deriving from the Universal Declaration on Human Rights (UDHR) and the Palestinian Basic Law.
1. Impact on civilians of rocket and mortar attacks by Palestinian armed groups on southern Israel
104. Since 18 June 2008, rockets fired by Palestinian armed groups in Gaza have killed 3 civilians inside Israel and 2 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 which 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% of adults and 72-94% of children in Sderot suffered from Post-Traumatic Stress Disorder. 1596 people were reportedly treated for stress-related injuries during the military operations in Gaza while over 500 people were treated following the end of the operations.
106. Rocket 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 impacted on 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 and also the diminished ability to learn that is witnessed in individual experiencing symptoms of psychological trauma.
107. The rocket and mortar fire has also adversely impacted on the economic and social life of the affected communities. For communities such as Ashdod, Yavne, Beer Sheba, which experienced rocket strikes for the first time during the Israeli military operations in Gaza, there was a brief interruption to their economy and cultural brought about by the temporary displacement of some of their residents. For towns closer to the Gaza border that have been under rocket and mortar fire since 2001, the recent escalation has added to the exodus of residents from these areas.
108. The Mission has determined that the rockets and, to a lesser extent, mortars, fired by the Palestinian armed groups are incapable of being directed towards specific military objectives and were 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 the fact that the attacks have caused very little damage to Israeli military as sets, 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 amongst the Israeli civilian population, a violation of international law.
109. Noting that some of the Palestinian armed groups, along them Hamas, have publicly expressed an intention to target civilians as reprisals for the fatalities of civilians 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 USD 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 available to the Palestinian Israeli communities living unrecognised and in some of the recognised villages that are within the range of rocket and mortars being fired by Palestinian armed groups in Gaza.
112. The Mission notes with concern the reported instances of physical violence against protesters committed by members of the police, including the beating of protester and other inappropriate conduct by the police including subjected Palestinian citizens of Israel who were arrested to racial abuse and making sexual comments about female members of their families. Article 10 of the ICCPR requires that those deprived of their liberty be treated with humanity and respect for the inherent dignity of the human person.
113. Of protesters brought before the Israeli courts, it was the Palestinian Israelis who were disproportionately held in detention pending trial. The element of discrimination and differential treatment between Palestinian and Jewish citizens of Israel by 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, in the absence of any legal obligation 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 the group's publication of testimonies of Israeli soldiers concerning the conduct of Israeli military 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 United Nations Declaration on Human Rights Defenders guarantees the right "to solicit, receive and utilise resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means". If motivated by reaction to the organisation'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. Further, access was denied to human rights organizations and the ban continues for some international and Israeli organizations. The Mission can find no justifiable reason for this denial of access. The presence of journalists and international human rights monitors aides the investigation and wide public reporting of the conduct of the parties to the conflict and their presence can inhibit misconduct. The Mission observes that Israel, in its actions against political activists, NGOs and the media, has attempted to reduce public scrutiny of its conduct both 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.