Schabes Report Summary

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Human Rights Council Twenty-ninth session Agenda item 7

Human rights situation in Palestine and other occupied Arab territories

Report of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1* **

Contents

                                                                                                                                                                 Paragraphs                                                                                                                                                                            Page

1. Introduction…………………………………………………………………………………………………..                     1–5                3
2. Mandate and methodology…………………………………………………………………………….                   6–11                3

III.      Legal framework……………………………………………………………………………………………                12–13                4

1. Context                                                                                                                                         14–19                5
2. Principal findings and conclusions………………………………………………………………..                20–71                6
3. The Gaza Strip and Israel………………………………………………………………………. 26–68         7
4. The West Bank, including East Jerusalem…………………………………………….. 69–71         17
5. Accountability ……………………………………………………………………………………………..                72–73             18

VII.      Conclusions and recommendations……………………………………………………………….                74–90             19

1. Concluding observations………………………………………………………………………. 74–81         19
2. Recommendations………………………………………………………………………………… 82–90         21

Annexes

I…… Correspondence ………………………………………………………………………………………………………………….. …………………………………………………………………………………………………………………………………………. 24

II….. Stakeholders consulted by the commission of inquiry…………………………………………………………. …………………………………………………………………………………………………………………………………………. 29

III…… Submissions to the commission of inquiry ………………………………………………………………………….. …………………………………………………………………………………………………………………………………………. 32

1. Introduction
2. On 23 July 2014, the Human Rights Council, in its resolution S-21/1, decided to “urgently dispatch an independent, international commission of inquiry to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before, during or after.” Pursuant to resolution S-21/1, the President of the Council appointed three experts to the commission: William Schabas (Chair), Mary McGowan Davis and Doudou Diène.
3. The members of the commission formally began their work on 16 September 2014. Following the resignation of Professor Schabas on 2 February 2015, the President of the Council designated Justice Davis as the Chair. The Office of the United Nations High Commissioner for Human Rights (OHCHR) established a secretariat to support the commission. Notwithstanding the urgency expressed by the Council to dispatch the commission, the secretariat was not fully constituted until the end of November 2014.
4. The commission repeatedly requested Israel to cooperate, including by granting it access to Israel and the Occupied Palestinian Territory, including the West Bank, East Jerusalem and the Gaza Strip (see annex I). Regrettably, Israel did not respond to these requests. Subsequently, the commission learned from a press release[1] that no such cooperation would be forthcoming. The Government of Egypt, when requested to facilitate entry into the Gaza Strip through the Rafah crossing, responded that it was not possible owing to the prevailing security situation. The commission wishes to thank the Government of Jordan for facilitating its two visits to Amman.
5. The commission received full cooperation from the State of Palestine, including the Permanent Observer Mission of the State of Palestine to the United Nations Office at Geneva. It met with representatives of Palestinian ministries in Amman, who provided a range of documents. The commission also spoke to members of the authorities in Gaza, who submitted several written reports to the commission.
6. The commission addressed to the Government of Israel and the Government of the State of Palestine a list of questions relating to specific incidents and legal and policy issues. A comparable list of questions was also sent to Hamas. Only the State of Palestine responded to the requests.
7. Mandate and methodology
8. The commission interpreted its mandate as requiring it to examine alleged violations of international human rights and humanitarian law occurring between 13 June and 26 August 2014 across the Occupied Palestinian Territory, in particular in Gaza, and in Israel, and to determine whether such violations had been committed. It examined existing accountability mechanisms and their effectiveness, and the immediate and continuing impact of the military operations on the affected populations and their enjoyment of human rights. The commission considered that the victims and their human rights were at the core of its mandate. Its activities were thus informed by the wish to ensure that the voices of all victims are heard, and that the commission’s recommendations will strengthen the protection of the civilian population in the Occupied Palestinian Territory and in Israel.
9. The commission is grateful to the many victims and witnesses who shared their experiences and other relevant information. The fact that, despite its repeated requests, the commission was not granted access to the Occupied Palestinian Territory and Israel posed a challenge for conducting interviews in person with victims and witnesses and made viewing the sites where violations were alleged to have been committed impossible. Owing to the restrictions on movement preventing victims and witnesses from leaving Gaza, the commission obtained first-hand testimony by means of interviews conducted via Skype, videoconference and telephone. It conducted confidential interviews with victims and witnesses from the West Bank in Jordan (in November 2014 and January 2015) and with victims and witnesses from Israel in Geneva (in January 2015).
10. The commission and its secretariat conducted more than 280 interviews with victims and witnesses and received more than 500 written submissions and other documentation from a wide range of sources (see annexes II and III). It reviewed information publicly available, including on official websites of the Government of Israel. The commission used the totality of this information in making its assessments while carefully considering the credibility and reliability of sources. It gave particular weight to first-hand testimonies, recognizing the limitations resulting from the fact that the interviews were conducted remotely, the lapse in time since the incidents, and the possibility of reprisals.
11. Some sources requested that their submissions be treated confidentially for fear of possible consequences of testifying before the commission, including for their safety. Primary responsibility for protecting victims, witnesses and other persons cooperating with the commission rests with their States of residence and nationality. The commission appreciated the valuable contributions made to its work by OHCHR, United Nations agencies and programmes, non-governmental organizations and experts.
12. Consistent with established practice, the commission employed a “reasonable ground” standard of proof in its factual assessment of the incidents investigated and legal analysis of the patterns found. Such a standard is lower than that required in criminal trials; the commission therefore does not make any conclusions with regard to the responsibility of specific individuals for alleged violations of international law.
13. Given its restricted access, its limited resources and the short time frame available for its inquiry, the commission selected incidents on the basis of certain criteria, in particular, the gravity of the allegations of violations of international humanitarian law and international human rights law; their significance in demonstrating patterns of alleged violations; access to victims, witnesses and supporting evidence; and the geographic location of the incident.

III.    Legal framework

12. All parties to the conflict are bound by the relevant provisions and rules of international humanitarian and human rights treaty and customary law. The commission considers that, in situations of armed conflict or occupation, international humanitarian law and international human rights law apply concurrently,[2] and shares the position of United Nations human rights treaty bodies and the International Court of Justice according to which Israel bears responsibility for implementing its human rights treaty obligations in the Occupied Palestinian Territory.[3] The State of Palestine is bound by the obligations contained in the treaties to which it has acceded. The authorities in Gaza must respect and ensure human rights norms because of their exercise of government-like functions.
13. A number of core principles of international humanitarian law govern the conduct of hostilities. Firstly, the principle of distinction requires that parties to a conflict distinguish between civilians and civilian objects on the one hand, and combatants[4] and military objectives on the other. Attacks may only be directed against the latter. Secondly, the principle of proportionality prohibits attacks that are expected to cause incidental loss of life or injury to civilians or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated. Thirdly, the principle of precautions in attack requires all parties to take all feasible measures to avoid and in any event to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects.
14. Context
15. The hostilities of 2014 erupted in the context of the protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip, and of the increasing number of rocket attacks on Israel. In the preceding months, there were few, if any, political prospects for reaching a solution to the conflict that would achieve peace and security for Palestinians and Israelis and realize the right to self-determination of the Palestinian people.
16. The blockade of Gaza by Israel, fully implemented since 2007 and described by the Secretary-General as “a continuing collective penalty against the population in Gaza” (A/HRC/28/45, para. 70), was strangling the economy in Gaza and imposed severe restrictions on the rights of the Palestinians. Two previous rounds of hostilities in the Strip since 2008 had not only led to loss of life and injury but also weakened an already fragile infrastructure. Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma. In the West Bank, including East Jerusalem, settlement-related activities and settler violence continued to be at the core of most of the human rights violations against Palestinians. In the absence of any progress on the political front, the risk of a flare-up of the situation was evident.
17. In the meantime, threats to the security of Israel remained all too real. Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity. According to one witness, residents of her kibbutz experienced regular panic attacks after a tunnel discovery in March 2014 and the explosion of an alleged tunnel exit on 8 July. Several other infiltration attempts were thwarted by the army during July and August.
18. The events of summer 2014 were preceded by an agreement, reached on 23 April 2014 between the Palestinian Liberation Organization and Hamas, which sought to end Palestinian divisions. On 2 June 2014, President Abbas declared the formation of a Government of national consensus. The Government had yet to assume its full responsibilities in Gaza when active hostilities broke out in the Strip in July 2014, thereby leaving Hamas exercising government-like functions, as had been the case since June 2007.
19. On 12 June 2014, three Israeli teenagers were kidnapped and brutally murdered in the West Bank. In response, Israel launched an extensive search and arrest operation, which lasted until the bodies of the teenagers were found, on 30 June. On 2 July, a 16-year-old Palestinian teenager from East Jerusalem was viciously murdered by being burned alive and his body discovered in West Jerusalem in what appeared to be an act of revenge for the murdered Israeli teenagers. Tensions in the West Bank, including East Jerusalem, ran high, and were further fuelled by a rise in extreme anti-Palestinian rhetoric. Widespread protests and violent clashes ensued between Palestinians and the Israel Defense Forces.
20. On 7 July 2014, the Israel Defense Forces commenced operation “Protective Edge” in the Gaza Strip, with the stated objective of stopping the rocket attacks by Hamas and destroying its capabilities to conduct operations against Israel. After an initial phase focused on airstrikes, on 17 July 2014, Israel launched a ground operation, which it declared sought to degrade “terror organisations’ military infrastructure, and [… neutralize] their network of cross-border assault tunnels”.[5] A third phase began on 5 August, and was characterized by alternating ceasefires and ongoing air strikes. The operation concluded on 26 August, when both Israel and Palestinian armed groups adhered to an unconditional ceasefire.
21. Principal findings and conclusions
22. Palestinians and Israelis were profoundly shaken by the events of the summer of 2014. In Gaza, in particular, the scale of the devastation was unprecedented. The death toll alone speaks volumes: 2,251 Palestinians were killed, including 1,462 Palestinian civilians, of whom 299 women and 551 children;[6] and 11,231 Palestinians, including 3,540 women and 3,436 children, were injured (A/HRC/28/80/Add.1, para. 24), of whom 10 per cent suffered permanent disability as a result. While the casualty figures gathered by the United Nations, Israel, the State of Palestine and non-governmental organizations differ, regardless of the exact proportion of civilians to combatants, the high incidence of loss of human life and injury in Gaza is heartbreaking.
23. The death of six civilians in Israel and 67 soldiers and the injury of up to 1,600 others were also the tragic result of the hostilities. According to official Israeli sources, rockets and mortars hit civilian buildings and infrastructure, including schools and houses, causing direct damage to civilian property amounting to almost $25 million.[7]The hostilities moreover caused immense distress and disruption to the lives of Israeli civilians, especially those living in the southern regions. In addition to the constant threat of rocket and mortar attacks, the Israelis interviewed by the commission expressed particular anxiety about the new threat of assaults from tunnels penetrating into Israel. One Israeli woman said that “the tunnels are scarier than the rockets because there’s no chance of being warned”. The sense of panic among many Israelis was exacerbated by the short, often insufficient, time to carry out effective emergency procedures.
24. In Gaza, as Palestinians struggled to find ways to save their own lives and those of their families, they were confronted with intense attacks, with no way of knowing which locations would be hit and which might be considered safe. People began to move from one place to another, only to encounter attacks in the new neighbourhood, and they would have to move on. Closed into the Strip, with no possibility to exit, at times, 44 per cent of Gaza was either a no-go area or the object of evacuation warnings.[8] These terrifying circumstances created a sense of entrapment, of having “no safe place” to go.
25. Alongside the toll on civilian lives, there was enormous destruction of civilian infrastructure in Gaza: 18,000 housing units were destroyed in whole or in part;[9] much of the electricity network and of the water and sanitation infrastructure were incapacitated; and 73 medical facilities and many ambulances were damaged.[10] Many Palestinians were uprooted from their homes or temporary shelters multiple times; at the height of the hostilities, the number of internally displaced persons reached 500,000, or 28 per cent of the population. The effects of this devastation had a severe impact on the human rights of Palestinians in Gaza and will do so for generations to come. The West Bank, including East Jerusalem, witnessed a period of heightened tensions and widespread human rights violations, including the fundamental right to life, which were overshadowed by the tragic events in Gaza.
26. The impact of the hostilities in Gaza cannot be assessed separately from the blockade imposed by Israel. The blockade and the military operation have led to a protection crisis and chronic, widespread and systematic violations of human rights, first and foremost the rights to life and to security, but also to health, housing, education and many others. In accordance with international human rights law, Israel has obligations in relation to these rights and must take concrete steps towards their full realization. In that context, while fully aware of the need for Israel to address its security concerns, the commission believes that the Gaza Reconstruction Mechanism, put in place with the assistance of the United Nations to accelerate efforts to rebuild destroyed houses and infrastructure, is not a substitute for a full and immediate lifting of the blockade.
27. Palestinian and Israeli children were savagely affected by the events. Children on both sides suffered from bed-wetting, shaking at night, clinging to parents, nightmares and increased levels of aggressiveness.[11] In addition, according to the United Nations Children’s Fund, in Gaza, more than 1,500 children were orphaned.[12] Bader Qdeih, aged 6, was seen pleading for help from people fleeing Khuza’a while holding his intestines, which were coming out of his abdomen, “I don’t want to die. Don’t leave me.” He died soon afterwards, after his medical evacuation was delayed.
28. The Gaza Strip and Israel
29. In the section below, the commission summarizes its main findings and conclusions, emphasizing the most important characteristics of the hostilities of 2014. It focuses on areas that reflect new patterns, notably attacks by Israel on residential buildings resulting in the death of entire families; Israel’s ground operations, which levelled urban neighbourhoods; and violations by Palestinian armed groups and authorities in Gaza, including their reliance on attack tunnels. Other incidents – namely attacks by Israel on United Nations shelters, medical facilities, ambulances, and other critical infrastructure – are considered less thoroughly, because these patterns have been a recurring reality in this and prior conflicts.
30. Rocket, mortar and tunnel attacks against locations in Israel

             (a)      Rocket and mortar attacks

27. Between 7 July and 26 August 2014, Palestinian armed groups fired 4,881 rockets and 1,753 mortars towards Israel, killing six civilians and injuring as many as 1,600 people, including 270 children. A mother from Israel described the situation experienced: “We have 45 seconds to run. You just have to wait and see if it’s going to fall on you.”
28. Owing to the lack of cooperation by Israel and its denial of access to its territory, the commission faced difficulties in identifying victims who had been injured in rocket attacks and was unable to examine individual cases in detail. The commission was, however, able to speak with witnesses and victims of a number of mortar attacks, the cause of the majority of Israeli civilian deaths.
29. On 22 August 2014, Daniel Tregerman, aged 4, was killed in his home at Kibbutz Nahal Oz, about 2 km from Gaza. While he was playing, a siren sounded, followed by an explosion three seconds later, when a mortar hit the family car and shrapnel struck Daniel. Given the short time, he had been unable to reach the protected room with the rest of his family. In another incident, on 26 August, Ze’ev Etzion and Shahar Melamed were killed by a mortar. Gad Yarkoni suffered injuries to his legs, which were later amputated. He informed the commission that the attack occurred as the three men were repairing electricity lines damaged by Palestinian projectiles in Kibbutz Nirim. The Al-Qassam Brigades announced that they had targeted Kibbutz Nirim and various other communities with 107 mm mortars on the day of the attack.[13]
30. Palestinian armed groups released statements indicating that they intended to attack Israeli civilians and population centres in Israel. In some instances, Palestinian armed groups in Gaza reportedly attempted to warn civilians in Israel of imminent attacks. For instance, on 20 August 2014, the Al-Qassam Brigades warned communities near Gaza to avoid returning home or to remain inside shelters.[14]
31. While some Palestinian armed groups made efforts to direct projectiles, especially mortars, at military objectives, in other cases they targeted villages near Gaza. The majority of projectiles fired by Palestinian armed groups were rockets without guidance systems so they could not be directed at specific military objectives. Many of the rockets were launched in the direction of major cities, including Jerusalem, Tel Aviv and Ashkelon, and one landed in the vicinity of Ben Gurion airport.

             (b)      Tunnels

32. The Israel Defense Forces found 32 tunnels, 14 of which extended beyond the Green Line into Israel.[15] The discovery of the tunnels and their use by Palestinian armed groups during the hostilities caused great anxiety among Israelis fearing that the tunnels might be used to attack civilians. One witness recalled, “When it’s quiet, we are even more afraid because we don’t know what things can come from the ground. Since April, everyone was afraid and uncomfortable about the tunnels.”
33. The use of rockets in the possession of Palestinian armed groups, indiscriminate in nature, and any targeted mortar attack against civilians constitute violations of international humanitarian law, in particular of the fundamental principle of distinction, which may amount to a war crime. The intent of some Palestinian armed groups to direct attacks against civilians is demonstrated by statements indicating that their intended targets were civilians or large population centres in Israel. While certain Palestinian armed actors cited the limits of their military arsenals as a reason for failing to attack military targets precisely, the military capacity of a party to the conflict is irrelevant to its obligation to respect the prohibition against indiscriminate attacks.
34. The absence of any possible military advantage resulting from rockets that cannot be directed at a military objective, coupled with statements by Palestinian armed groups, strongly suggest that the primary purpose of the rocket attacks was to spread terror among the civilian population, in violation of international humanitarian law.
35. Air strikes on residential buildings in Gaza
36. During the 51-day operation, the Israel Defense Forces carried out more than 6,000 airstrikes in Gaza,[16] many of which hit residential buildings. The Office for the Coordination of Humanitarian Affairs found that at least 142 Palestinian families had three or more members killed in the same incident, amounting to a total of 742 fatalities.[17] Tawfik Abu Jama, a Gazan father of eight, recalled: “I was sitting with my family at the table, ready to break the fast. Suddenly we were sucked into the ground. Later that evening, I woke up in the hospital and was told my wife and children had died”.
37. The commission investigated 15 cases of strikes on residential buildings across Gaza, in which a total of 216 people were killed, including 115 children and 50 women. On the basis of all available information, including research by non-governmental organizations,[18] it identified patterns of strikes by Israeli forces on residential buildings and analysed the applicable law in relation to individual incidents.
38. The commission found that the fact that precision-guided weapons were used in all cases indicates that they were directed against specific targets and resulted in the total or partial destruction of entire buildings. This finding is corroborated by satellite imagery analysis.[19] Many of the incidents took place in the evening or at dawn, when families gathered for iftar and suhhur, the Ramadan meals, or at night, when people were asleep. The timing of the attacks increased the likelihood that many people, often entire families, would be at home. Attacking residential buildings rendered women particularly vulnerable to death and injury.[20]
39. In six of the cases examined by the commission, and in most cases reported on by non-governmental organizations, there is little or no information available to explain why residential buildings, which are prima facie civilian objects immune from attack, were considered to be legitimate military objectives. In relation to each attack on residential buildings that resulted in significant destruction and civilian deaths or injuries, the onus is on Israel to explain the factual elements that rendered the houses or the person(s) present inside a military target. Israel should provide specific information on the effective contribution of a given house or inhabitant to military action and the clear advantage to be gained by the attack. Should a strike directly and intentionally target a house in the absence of a specific military objective, this would amount to a violation of the principle of distinction.[21] It may also constitute a direct attack against civilian objects or civilians, a war crime under international criminal law.[22]
40. Although the commission found indications of possible military objectives in the remaining nine cases examined, it is not in a position to determine whether they actually motivated the attacks in question. It appears that the potential targets were mostly individuals who were or who could have been present in the building at the time it was hit, presumably on account of their alleged links to the police, Hamas or an armed group. In that regard, international law provides that persons may be targeted only if they participate directly in hostilities or are members of organized armed groups with a continuous combat function.
41. With regard to proportionality, given the circumstances, a reasonable commander would have been aware that these attacks would be likely to result in a large number of civilian casualties and the complete or partial destruction of the building. Such circumstances differ from case to case, and include the residential nature of the targeted buildings; their location in densely populated areas; the timing of the attacks; and the frequent use of large bombs that were apparently meant to cause extensive damage. Given the absence of information suggesting that the anticipated military advantage at the time of the attack was such that the expected civilian casualties and damage to the targeted and surrounding buildings were not excessive, there are strong indications that these attacks could be disproportionate, and therefore amount to a war crime.[23]
42. Regarding precautions, the Israel Defense Forces stated repeatedly that its measures were more stringent than those required by international humanitarian law.[24] In many incidents, however, the weapons used, the timing of attacks, and the fact that the targets were located in densely populated areas indicate that the Israel Defense Forces may not have done everything feasible to avoid or limit civilian casualties.
43. Warnings are one means of precaution. International humanitarian law requires that “effective advance warning be given of attacks which may affect the civilian population, unless circumstances do not permit.”[25] The fact that many residential buildings were destroyed without causing deaths suggests that, where specific warnings were conveyed via telephone or text messages, they may have been effective in minimizing civilian casualties. In other cases, the Israel Defense Forces used so-called “roof-knock” warnings, strikes by small missiles before the real strike. In a number of incidents examined, the concerned persons either did not understand that their house had been the subject of a “roof-knock”, or the time given for evacuation between the warning and the actual strike was insufficient. In one case examined by the commission, a 22-member family, including nine children, were given just a few minutes to evacuate their home after a “roof-knock” in the early hours of the morning, while they were asleep; 19 of the 22 people present in the house died. The commission concluded that “roof-knocks” cannot be considered an effective warning given the confusion they often cause to building residents and the short time allowed to evacuate before the actual strike.
44. The limited effectiveness of the above-mentioned precautionary measures must have become abundantly clear in the early days of the operation, given that many buildings were destroyed, together with their inhabitants. The apparent lack of steps to re-examine these measures in the light of the mounting civilian toll suggests that Israel did not comply with its obligation to take all feasible precautions before the attacks.
45. Furthermore, the large number of targeted attacks against residential buildings and the fact that such attacks continued throughout the operation, even after the dire impact of these attacks on civilians and civilian objects became apparent, raise concern that the strikes may have constituted military tactics reflective of a broader policy, approved at least tacitly by decision-makers at the highest levels of the Government of Israel.[26]
46. The commission also considered air strikes against prima facie residential buildings that did not cause deaths because the buildings had been vacated. These included attacks against the houses of senior political figures and high-ranking members of armed groups in their absence, and against three high-rise buildings in the last days of the conflict. Without precise information about the possible military use of these premises, the commission is unable to make a conclusive assessment regarding Israel’s respect of the principle of distinction. These attacks raise concerns that Israel’s interpretation of what constitutes a “military objective” may be broader than the definition provided for by international humanitarian law.[27]
47. Ground operations
48. With regard to ground operations by Israel, the commission investigated attacks in three neighbourhoods: in Shuja’iya (on 19, 20 and 30 July); in Khuza’a (from 20 July to 1 August); and in Rafah (from 1 to 3 August), large areas of which were levelled to the ground. After an assessment of all available information, the commission identified five key patterns with respect to the ground operations.

             (a)      Use of artillery and other explosive weapons in densely populated areas

47. Talal Al Helo, a man from Shuja’iya, recalled “I am not a fighter, I am a civilian and I care about the well-being of my family. The attacks were everywhere. Everything was coming under attack, the roads and the buildings; there was no safe haven in Shuja’iya. We walked as the missiles kept arriving. We saw bodies of people in the streets. We came across the body of an acquaintance and several other bodies, of young and old people, women and children.”
48. During the ground operations, the Israel Defense Forces used explosive weapons extensively in densely populated areas of Gaza. These weapons included artillery and tank shells, mortars and air-dropped high-explosive munitions. The Forces reported that, during the operation, 5,000 tons of munitions were supplied,[28] and that 14,500 tank shells and approximately 35,000 artillery shells had been fired.[29] One non-governmental organization reported a 533 per cent-increase in highly explosive artillery shells used in 2014 in comparison to the hostilities in 2008 and 2009.[30] Many explosive weapons, in particular artillery and mortars, have a wide-area effect, meaning that anyone or anything within a given area is likely to be killed, injured or damaged, owing to the scale of their blast and their imprecise nature. While not illegal as such, the use of these weapons in densely populated areas poses a high risk to the civilian population.[31]
49. According to official Israeli sources, artillery was used in urban areas only on an exceptional basis, when these areas were known to have been largely evacuated.[32] The incidents examined by the commission, however, demonstrate that artillery and other heavy weapons were widely used in residential neighbourhoods, resulting in a large number of casualties and extensive destruction.[33] For instance, in Shuja’iya, the sheer number of 155 mm shells fired, the reported dropping of 120 one-ton bombs in a short amount of time in a densely populated area,[34] and the use of a creeping artillery barrage raise questions with regard to the respect by the Israel Defense Forces of the rules of distinction, precaution and proportionality.
50. The extensive use by the Israel Defense Forces of explosive weapons with wide-area effects, and their probable indiscriminate effects in the built-up neighbourhoods of Gaza, are highly likely to constitute a violation of the prohibition of indiscriminate attacks.[35] Such use may, depending on the circumstances, qualify as a direct attack against civilians,[36] and may therefore amount to a war crime.[37]
51. In addition, the fact that the Israel Defense Forces did not modify the manner in which they conducted their operations after initial episodes of shelling resulted in a large number of civilian deaths indicates that their policies governing the use of artillery in densely populated areas may not be in conformity with international humanitarian law.
52. The commission examined several additional incidents, including attacks on shelters, hospitals and critical infrastructure, in which artillery was used. The use of weapons with wide-area effects against targets in the vicinity of specifically protected objects (such as medical facilities and shelters) is highly likely to constitute a violation of the prohibition of indiscriminate attacks. Depending on the circumstances, indiscriminate attacks may qualify as a direct attack against civilians,[38] and may therefore amount to a war crime.[39]

             (b)      Destruction

53. Information gathered by the commission, including from witness accounts, United Nations reports, video and photographic materials, observations by the United Nations Institute for Training and Research Operational Satellite Applications Programme (UNITAR-UNOSAT)[40] and anecdotal testimonies by soldiers of the Israel Defense Forces, indicates that destruction by artillery fire, air strikes and bulldozers may have been adopted as a tactic of war. Some destruction may arguably be the result of the legitimate attempts of the Israel Defense Forces to dismantle tunnels and to protect its soldiers. The concentration of destruction in localities close to the Green Line, in some areas amounting to 100 per cent, and the systematic way in which these areas were flattened one after the other, however, raise concern that such extensive destruction was not required by imperative military necessity.[41] If confirmed, this would constitute a grave breach of article 147 of the Fourth Geneva Convention, which is a war crime.

             (c)      Warnings and the continued protected status of civilians

54. In many cases during the ground operations, the Israel Defense Forces warned the population of impending attacks by means of leaflets, loudspeaker announcements, telephone calls, text messages and radio announcements.[42] In many instances, however, inhabitants did not leave their homes.[43] For instance, the Office for the Coordination of Humanitarian Affairs reported on 20 July that the majority of the 92,000 inhabitants of Shuja’iya had remained in their neighbourhood despite repeated warnings to evacuate.[44] Witnesses pointed to several reasons for staying, including not knowing in which direction to go, given that intense shelling and air strikes were under way in many parts of Gaza; lack of clarity of and unclear time frames indicated by the warnings; the fact that many places considered safe were already overcrowded; and the poor conditions in shelters, which themselves came under attack.
55. Statements by officials of the Israel Defense Forces indicated that, in some cases, warnings to evacuate were meant to create “sterile combat zones”, and the people remaining in the area would no longer be considered civilians and thus benefit from the protection afforded by their civilian status. For example, the Head of the Doctrine Desk at the Infantry Corps Headquarters, Major Amitai Karanik, reportedly stated “We try to create a situation whereby the area where we are fighting is sterile, so any person seen there is suspected of engaging in terrorist activity. At the same time, we make the utmost effort to remove the population, whether this means dropping flyers or shelling […] We don’t want to confuse the troops […] In peacetime security, soldiers stand facing a civilian population, but in wartime, there is no civilian population, just an enemy.”[45] The commission is aware of assertions by the Ministry of Foreign Affairs of Israel that “although Hamas authorities actively encouraged civilians to ignore the IDF’s warnings and refrain from evacuating, the IDF did not regard civilians who heeded such advice as voluntary human shields and thus legitimate targets for attack. Nor did the IDF discount such civilians for purposes of its proportionality analyses.”[46] It is the view articulated by Major Karanik that appears, however, to have prevailed in at least two of the neighbourhoods examined by the commission and to have had implications for the way in which Israeli soldiers on the ground viewed those who remained. On the basis of soldier testimony, one non-governmental organization concluded that “the soldiers were briefed by their commanders to fire at every person they identified in a combat zone, since the working assumption was that every person in the field was an enemy.”[47]
56. The commission recognizes that the general warnings issued by the Israel Defense Forces saved lives. At the same time, these warnings were often used in a context where people fleeing were unable to identify a safe place to go owing to the unpredictability of many attacks over a lengthy period of time. Most importantly, inferring that anyone remaining in an area that has been the object of a warning is an enemy or a person engaging in “terrorist activity”, or issuing instructions to this effect, contributes to creating an environment conducive to attacks against civilians. Those civilians who choose not to heed a warning do not lose the protection granted by their status. The only way in which a civilian loses his or her protection from attack is by directly participating in the hostilities.[48] Merely issuing a warning does not absolve the Israel Defense Forces of their legal obligations to protect civilian life.

             (d)      Protection of civilians, force protection and the “Hannibal directive”

57. An examination of actions by the Israel Defense Forces in Shuja’iya in July and Rafah on 1 August indicates that the protection of Israeli soldiers significantly influenced the conduct of the Israel Defense Forces in these operations, at times overriding any concern for minimizing civilian casualties. While force protection is a legitimate objective, the commission has the distinct impression that, when soldiers’ lives were at stake or there was a risk of capture, the Israel Defense Forces disregarded basic principles on the conduct of hostilities. One of the witnesses recalled that “every time an Israeli soldier dies or is kidnapped, we feel the consequences”. In Rafah, following the killing of two Israeli soldiers and the apparent capture of one, who was later found to be dead, entire areas were closed off, in particular through the use of shelling and air strikes, presumably to prevent the captors from leaving the area with the captive soldier. Reports indicate that a procedure, known as the “Hannibal directive”, was activated in Rafah and possibly in Shuja’iya, where there were similar fears that a soldier had been captured. It reportedly gives considerable leeway to Israel Defense Forces commanders in deciding how to prevent their soldiers from being captured by armed groups,[49] and is widely perceived as having led to intensified shelling. In Rafah, every moving vehicle or person became a potential target, with the most intensive fire reported over the first four hours.
58. The Government of Israel has stated that the requirement to respect the principle of proportionality continues to apply whenever the Hannibal directive is invoked,[50] and some have argued that the proportionality test may take into account strategic considerations in determining the military advantage. The commission emphasizes that policy considerations and remote strategic objectives informed by political goals – such as denying armed groups the leverage they could obtain over Israel in negotiations for the release of a captured soldier – are not valid considerations in conducting the proportionality analysis required under international humanitarian law. The commission believes that the military culture created by such policy priorities may have been a factor contributing to the decision to unleash massive firepower in Rafah and Shuja’iya, in utter disregard of its devastating impact on the civilian population. Moreover, applying this protocol in the context of a densely populated environment through the use of heavy weaponry predictably leads to violations of the principles of distinction and proportionality.

             (e)      Targeting of civilians

59. The commission examined several cases in which the people or groups of people targeted were civilians, at times children, who were not directly participating in the hostilities, and did not represent any threat to the Israeli soldiers present in the area. For instance, Salem Shamaly, whose death was recorded on video, was shot several times while looking for a relative during a humanitarian pause, even after he had been felled by the first shot (A/HRC/28/80/Add.1, para. 43). The commission examined two other incidents in which civilians allegedly carrying white flags were targeted by soldiers in Khuza’a. The first case pertained to a large group of people, including children, who were attacked in front of a clinic while attempting to leave the village holding white flags. In the second case, a man in a house carrying a white flag was shot at point-blank range in front of some 30 other people, including women, children and elderly persons, who had sought shelter in that house.
60. Directing attacks against civilians constitutes a violation of the principle of distinction and may amount to a war crime. These acts may also constitute wilful killings. Such acts are also a violation of the right to life, as guaranteed by article 6 of the International Covenant on Civil and Political Rights.
61. Impact on the population in Gaza of the conduct of Palestinian armed groups
62. The commission examined the conduct of Palestinian armed groups in a densely populated environment, and what measures, if any, were taken by the authorities in Gaza to protect civilians in Gaza from the effects of the attacks conducted by Israel.
63. The commission regrets that it was unable to verify allegations made by Israel on the use of civilian buildings by Palestinian armed groups[51] owing to the denial by Israel of access to Gaza; fears by Palestinian witnesses of reprisal by armed groups and local authorities, in particular when providing information remotely; and challenges faced by Palestinian human rights organizations in documenting alleged violations by Palestinian armed groups.

             (a)      Conducting military operations from within or near densely populated areas

63. Palestinian armed groups allegedly often operated from densely populated neighbourhoods, including by firing rockets, mortars and other weapons from built-up areas. In addition, they were alleged to have frequently placed command and control centres and firing positions in residential buildings and to have stockpiled weapons and located tunnel entrances in prima facie civilian buildings. They also reportedly conducted military operations within or in close proximity to sites benefiting from specific protection under international humanitarian law, such as hospitals, shelters and places dedicated to religion and education, including within or in the vicinity of schools operated by the United Nations Relief and Works Agency for Palestine Refugees in the Near East. The Secretary-General expressed his dismay “that Palestinian militant groups would put United Nations schools at risk by using them to hide their arms. The three schools in which weaponry was found were empty at the time and were not being used as shelters. However, the fact that they were used by those involved in the fighting to store their weaponry and, in two cases, probably to fire from is unacceptable” (S/2015/286, p. 3). Israel made specific allegations with regard to the use of schools, mosques and hospitals and the areas in their immediate vicinity for military purposes. By firing rockets from densely populated areas, Palestinian armed groups also put Gazans in danger; for example, on 28 July 2014, 13 civilians, including 11 children, were killed in Al Shati camp when a rocket appears to have fallen short of its target.
64. The commission recognizes that the obligation to avoid locating military objectives within densely populated areas is not absolute. The small size of Gaza and its population density make it difficult for armed groups to always comply with this requirement. While the commission was unable to verify independently the specific incidents alleged by Israel, the frequency of reports of Palestinian armed groups carrying out military operations in the immediate vicinity of civilian objects and specially protected objects suggests that such conduct could have been avoided on a number of occasions. In those instances, Palestinian armed groups may not have complied, to the maximum extent feasible, with their legal obligations. In cases where their goal may have been to use the presence of civilians to protect military assets from attack, this would constitute a violation of the customary law prohibition against the use of human shields.[52] With regard to the alleged use of medical facilities and ambulances for military purposes, if verified, and if the buildings or ambulances bore distinctive emblems of the Geneva Conventions, such as the Red Crescent, such actions would amount to an improper use of a distinctive emblem, in violation of customary international humanitarian law.
65. Regardless of the case-by-case legality of the actions of Palestinian armed groups, the military use of civilian buildings and densely populated areas from which to conduct military operations increases the risk to the civilian population and civilian objects. The questionable conduct of these armed groups, however, does not modify Israel’s own obligations to abide by international law.

             (b)      Measures to facilitate the removal of the civilian population from the vicinity of military objectives

66. The authorities in Gaza stated that they had taken measures to facilitate evacuation from areas most affected by the hostilities, including by setting up shelters for internally displaced persons and conducting more than 4,450 evacuation missions in Beit Hanoun, Shuja’iya and Khuza’a. Nevertheless, the commission is concerned that, in some cases, the authorities in Gaza reportedly encouraged residents not to heed the warnings given by the Israel Defense Forces.[53] If confirmed, and depending on the circumstances, such declarations may indicate that the authorities in Gaza did not take all the precautions necessary to protect the civilian population under their control as required by international humanitarian law.

             (c)      Executions of suspected “collaborators”

67. The commission found that 21 alleged “collaborators” were executed between 5 and 22 August 2014. Sixteen of them were taken from Al Katiba prison where they had been held in the custody of the local authorities in Gaza and shot by firing squad.[54] The Al-Qassam Brigades claimed responsibility for the executions, in some cases claiming that the persons executed had been “found guilty of giving information on the whereabouts of fighters and civilian houses”.[55] The local authorities in Gaza informed the commission that the executions had been carried out by Palestinian factions operating in secrecy, without instructions from the authorities. They have purportedly created a body to investigate allegations of extrajudicial killings. The Government of the State of Palestine likewise pledged to investigate such cases once it regains control over Gaza.
68. Owing to the link to the armed conflict, these extrajudicial executions constitute a violation of article 3 common to the 1949 Geneva Conventions, and therefore amount to a war crime. In addition, the commission found that the executions appear to have been carried out with the knowledge of the local authorities in Gaza, in violation of their human rights obligation to protect the right to life and security of those in their custody. Furthermore, the commission is concerned that the families of those executed have been stigmatized by being labelled the relatives of “collaborators”.
69. The West Bank, including East Jerusalem
70. The period of June to September 2014 was marked by heightened tensions in the West Bank, including East Jerusalem. Israeli security forces allegedly conducted more than 1,400 raids on Palestinian homes and other civilian buildings, often at night, and reportedly arrested more than 2,050 Palestinians, including children (see A/HRC/28/80/Add.1).[56] As at the end of August 2014, 473 persons were said to be held in administrative detention.[57] Cruel, inhuman and degrading treatment, including of children, was widely reported.[58] Israel also imposed severe restrictions on the movement of Palestinians within and out of the West Bank, as well as on their access to Al Aqsa Mosque.[59] These measures prevented Palestinians from having access to services, markets, education and workplaces, and generated significant economic losses.[60] In addition, Israel resumed its practice of punitive home demolitions. Incidents of settler violence and settlement-related activity, including reportedly as a response to the abduction and killing of the three Israeli youths, were recorded.
71. There was also a stark rise in deaths and injuries of Palestinians by Israeli security forces. Between 12 June and 26 August 2014, 27 Palestinians, including five children, were allegedly killed and more than 3,100, Palestinians were injured by the Israeli security forces (A/HRC/28/80/Add.1, para. 10).[61] This figure reportedly rose to 36 Palestinians, including 11 children, by the end of September 2014.[62] The victims included Hashem Abu Maria, a well-known child rights activist who worked for the non-governmental organization Defence for Children International who was killed in circumstances where he presented no threat to the security forces. United Nations data indicate that the number of those killed within this period was equivalent to the total number of Palestinian fatalities in similar circumstances throughout 2013 (). These data further show that the large number of deaths and injuries was a direct result of the regular recourse to live ammunition by the Israeli security forces[63] and the apparent rising trend in the use of 0.22 inch calibre bullets in crowd-control situations. The increased use of live ammunition, combined with the spike in casualties, appears to reflect a change in policy guiding the law enforcement operations of the Israel Defense Forces in the West Bank.[64]
72. The commission is particularly concerned that the pervasive use of live ammunition inevitably raises the risk of death or serious injury. The use of firearms against those not posing a threat to life or serious injury constitutes a violation of the prohibition of the arbitrary deprivation of life,[65] and may, depending on the circumstances, amount to an act of wilful killing. The unjustified recourse to firearms by law enforcement officials may be considered a war crime when it takes place in the context of an international armed conflict, including a situation of military occupation, and that the person killed was a protected person.
73. Accountability
74. The commission notes the steps taken by Israel to investigate alleged violations of the law of armed conflict by the Israel Defense Forces during operation “Protective Edge”[66] and towards bringing its system of investigations into compliance with international standards. Flaws remain, however, with respect to the State’s adherence to international standards. Further significant changes are required to ensure that Israel adequately fulfils its duty to investigate, prosecute and hold perpetrators accountable for violations of international humanitarian law and international human rights law. One of the measures needed is to enhance the independence and impartiality of the Military Advocate General and to ensure the robust application of international humanitarian law in his decisions regarding criminal investigations. For example, the definition of “military objectives” has implications both for the Military Advocate General’s operational guidance of troops on the ground and his subsequent assessment of whether to refer a case for criminal investigation. Moreover, the investigations process followed by the Israel Defense Forces focuses on possible individual criminal responsibility at the level of the soldier on the battlefield. Even where the behaviour of soldiers and low-ranking officers during hostilities has come into question, however, this has rarely resulted in criminal investigations. At the policy level, the commission looks forward to reading the report of the State Comptroller’s inquiry into the procedure of decision-making by the military and political echelons during operation Protective Edge. The Comptroller’s inquiry should be supplemented by mechanisms – including criminal proceedings[67] and disciplinary measures – that aim to hold to account individuals who may have played a role in wrongdoing. In addition, Palestinian victims face significant obstacles that impede their right to benefit from effective remedies, including reparations.
75. The commission concludes that investigations by Palestinian authorities are woefully inadequate, despite allegations of violations of international humanitarian law on the part of Palestinian actors, leaving Israeli victims without an effective remedy. With respect to the local authorities in Gaza, no steps appear to have been taken to ensure effective investigations into actions by Palestinian armed groups, seemingly owing to a lack of political will. The Palestinian Authority claims that its failure to open investigations results from insufficient means to carry out investigations in a territory over which it has yet to re-establish unified control.

VII.    Conclusions and recommendations

1. Concluding observations
2. The commission was deeply moved by the immense suffering of Palestinian and Israeli victims, who have been subjected to repeated rounds of violence. The victims expressed their continued hope that their leaders and the international community would act more resolutely to address the root causes of the conflict so as to restore human rights, dignity, justice and security to all residents of the Occupied Palestinian Territory and Israel. In relation to this latest round of violence, which resulted in an unprecedented number of casualties, the commission was able to gather substantial information pointing to serious violations of international humanitarian law and international human rights law by Israel and by Palestinian armed groups. In some cases, these violations may amount to war crimes. The commission urges all those concerned to take immediate steps to ensure accountability, including the right to an effective remedy for victims.
3. With regard to Israel, the commission examined carefully the circumstances of each case, including the account given by the State, where available. Israel has, however, released insufficient information regarding the specific military objectives of its attacks. The commission recognizes the dilemma that Israel faces in releasing information that would disclose in detail the targets of military strikes, given that such information may be classified and jeopardize intelligence sources. Be that as it may, security considerations do not relieve the authorities of their obligations under international law. The onus remains on Israel to provide sufficient details on its targeting decisions to allow an independent assessment of the legality of the attacks conducted by the Israel Defense Forces and to assist victims in their quest for the truth.
4. The commission is concerned that impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces, whether it be in the context of active hostilities in Gaza or killings, torture and ill-treatment in the West Bank. Israel must break with its recent lamentable track record in holding wrongdoers accountable, not only as a means to secure justice for victims but also to ensure the necessary guarantees for non-repetition.
5. Questions arise regarding the role of senior officials who set military policy in several areas examined by the commission, such as in the attacks of the Israel Defense Forces on residential buildings, the use of artillery and other explosive weapons with wide-area effects in densely populated areas, the destruction of entire neighbourhoods in Gaza, and the regular resort to live ammunition by the Israel Defense Forces, notably in crowd-control situations, in the West Bank. In many cases, individual soldiers may have been following agreed military policy, but it may be that the policy itself violates the laws of war.
6. The commission’s investigations also raise the issue of why the Israeli authorities failed to revise their policies in Gaza and the West Bank during the period under review by the commission. Indeed, the fact that the political and military leadership did not change its course of action, despite considerable information regarding the massive degree of death and destruction in Gaza, raises questions about potential violations of international humanitarian law by these officials, which may amount to war crimes. Current accountability mechanisms may not be adequate to address this issue.
7. With regard to Palestinian armed groups, the commission has serious concerns with regard to the inherently indiscriminate nature of most of the projectiles directed towards Israel by these groups and to the targeting of civilians, which violate international humanitarian law and may amount to a war crime. The increased level of fear among Israeli civilians resulting from the use of tunnels was palpable. The commission also condemns the extrajudicial executions of alleged “collaborators”, which amount to a war crime.
8. The Palestinian authorities have consistently failed to ensure that perpetrators of violations of international humanitarian law and international human rights law are brought to justice. The commission is concerned that continuing political divisions contribute significantly to the obstruction of justice for victims of violations by Palestinian armed groups. The absence of measures to initiate criminal proceedings against alleged perpetrators calls into question the stated determination of the Palestinian Authority to achieve accountability. In accordance with their legal obligations, the authorities must take urgent measures to rectify this long-standing impunity.
9. Comprehensive and effective accountability mechanisms for violations allegedly committed by Israel or Palestinian actors will be a key deciding factor of whether Palestinians and Israelis are to be spared yet another round of hostilities and spikes in violations of international law in the future.
10. Recommendations
11. The persistent lack of implementation of recommendations – made by previous commissions of inquiry, fact-finding missions, United Nations treaty bodies, special procedures and other United Nations bodies, in particular the Secretary-General and OHCHR – lies at the heart of the systematic recurrence of violations in Israel and the Occupied Palestinian Territory. Bearing in mind this wealth of guidance, the commission will not elaborate an exhaustive list of recommendations, which would repeat concerns registered by other bodies. Rather, the commission calls upon all duty bearers to implement fully all recommendations made by the above-mentioned bodies without delay in order to avert a crisis similar to that of summer 2014 in the future.
12. The commission calls upon all parties to fully respect international humanitarian law and international human rights law, including the main principles of distinction, proportionality and precaution, and to establish promptly credible, effective, transparent and independent accountability mechanisms. The right of all victims to an effective remedy, including full reparations, must be ensured without further delay. In this context, the parties should cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened.
13. The commission also calls upon Israelis and Palestinians to demonstrate political leadership by both refraining from and taking active steps to prevent statements that dehumanize the other side, incite hatred, and only serve to perpetuate a culture of violence.
14. The commission calls upon the Government of Israel to conduct a thorough, transparent, objective and credible review of policies governing military operations and of law enforcement activities in the context of the occupation, as defined by political and military decision-makers, to ensure compliance with international humanitarian law and human rights law, specifically with regard to:

(a)     The use of explosive weapons with wide-area effects in densely populated areas, including in the vicinity of specifically protected objects;