Gaza War:

A Review of Amnesty International's Report on Operation Cast Lead

(Last update August 25, 2009)

Over the last half year the United Nations and a number of NGOs have been conducting investigations into the Israeli Operation Cast Lead a.k.a. the Gaza War, which lasted from 27 December 2008 to 18 January 2009. Several reports have been published and at least one more is forthcoming, from the UN investigation committee headed by Richard Goldstone. The focus of these reports is basically whether Israel in the course of its military operation in the Gaza Strip has committed war crimes. Though most reports also criticize Hamas and other armed groups in Gaza to some extend, the blame is mostly put on Israel for using disproportionate force and for targeting Palestinian civilians as well as fighters.

The Amnesty International report titled "Israel/Gaza - Operation 'Cast Lead': 22 Days of Death and Destruction", that was published in early July, is discussed below. It suffers from a number of flaws, like neglecting the context of the war and the nature of the Hamas regime in Gaza, an uncritical approach to Palestinian witnesses and sources, selective use of Israeli sources and disregard for sources which contradict the opinions of the investigators, and a disputable view of ambiguous international laws and conventions.

As a response to allegations made against the IDF, the Israeli government has published a paper dealing with a number of issues. See: "The Operation in Gaza - Factual and Legal Aspects".

Ratna Pelle and Wouter Brassé

For a summary of our findings see here:

Gaza War: Reviewing Amnesty International's Report on Operation Cast Lead

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Introduction

Wanton destruction

Omission of context

Casualty Statistics

Mildness Regarding Hamas

Fighting against a guerrilla force in a densely populated area

The UNRWA School in Jabalya

International Law, Distinction and Proportionality

Is Israel still Occupying the Gaza Strip?

Recommendations

Conclusions

Appendix - quotes and links

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Introduction

"Allah changed disobedient Jews into apes and pigs, it is true, but he specifically said these apes and pigs did not have the ability to reproduce. So it is not literally true that Jews today are descended from pigs and apes, but it is true that some of the ancestors of Jews were transformed into pigs and apes, and it is true that Allah continually makes the Jews pay for their crimes in many different ways. They are a cursed people."

"You are murderers of the prophets and you have closed your ears to the Messenger of Allah," he said. "Jews tried to kill the Prophet, peace be unto him. All throughout history, you have stood in opposition to the word of God."

Quotes by Hamas leader Nizar Rayan (Source: The Atlantic, January 2009 ). On January 1 he was killed by Israel in his own house, together with his four wives and eleven of his children, after having been warned by the IDF (there were explosives in his house) but refused to leave or bring his wives and children to safety.

On July 2, 2009 Amnesty International published a report about war crimes during Operation Cast Lead. This report, titled "Israel/Gaza - Operation 'Cast Lead': 22 Days of Death and Destruction" is not a neutrally conducted investigation, but an indictment, as the title already suggests.

Although Hamas and other armed Palestinian groups are also condemned for firing rockets and mortars on southern Israel, from the introduction onward it is evident that the investigators mainly blame Israel for large scale destruction and the death of hundreds of Palestinian civilians. The extensive report is 127 pages, but it is practically blind to the context of the war and the problems a regular army has to deal with to fight a guerrilla-like movement in a densely populated area.

The report is mainly based on testimonies by Palestinians in the Gaza Strip, which are sometimes heart-rending. Some stories were confirmed by others (family members, neighbors) or told independently from one another. Hardly any Israeli sources were used.

The researchers conclude from the many examples of Israeli cruelty that Israel deliberately and consciously brought death and destruction upon the population, as a deterrent or collective punishment. The introduction proclaimed:

"Much of the destruction was wanton and deliberate, and was carried out in a manner and circumstances which indicated that it could not be justified on grounds of military necessity. Rather, it was often the result of reckless and indiscriminate attacks, which were seemingly tolerated or even directly sanctioned up the chain of command, and which at times appeared intended to collectively punish local residents for the actions of armed groups."

Wanton destruction

In chapter 3, 'Wanton destruction in Gaza', it states:

In addition to the damage incidental to the fighting, Israeli soldiers – for no apparent reason – sometimes destroyed and frequently vandalized the houses they took over. They defaced the walls with racist and threatening graffiti, deliberately smashed and soiled furniture and possessions, and often left excrement all over the houses when they left. In the same houses Amnesty International researchers found evidence of the soldiers’ stay in the houses, such as spent ammunition, food rations, army medical kits and other supplies, the army magazine Bamachaneh and Hebrew prayer leaflets.

Soldiers’ graffiti included: “Death to the Arabs, we came to annihilate you”; “Die all of you, Arabs have 2 die, 1 down 999,999 to go”; “Next time it will hurt more”; “All of Gaza is a Jewish playfield”; “Kahane was right”; and “If we missed a corner of the house we’ll get back to you in the next operation” (in a vandalized house).

Amnesty concludes that by absence of a military goal in the investigated incidents, they have to be a deliberate policy. Add the graffiti and selectively picked quotes from IDF soldiers, and the picture is clear: the Israeli army is cruel and sadistic. Such a lazy reasoning is unworthy of a serious and conscientious organization like Amnesty International. The impression is that the investigators had a clear opinion of the case beforehand and were just looking for confirmation. The report reads like the account of a fight in which only one of the parties involved was consulted and its version was adopted without reservations. A cautious investigator would question the reliability of the witness accounts and would not rule out the possibility that, however heart-rending, some of these stories might be exaggerated or part of the context may have been left out consciously or unconsciously. He or she would desire to talk to soldiers and army commanders to hear their version, and if that option is not available because Israel refuses to cooperate with the investigation (as Amnesty claims), then one would consult the press and the internet for it, not selectively but as fully as possible.

No doubt there were sadists among the soldiers, who could not care less about Palestinians bleeding to death in the streets and who refused the passage of ambulances to the wounded, but is that the only or the most likely motivation for the behavior of these soldiers, as Amnesty suggests? A more common emotion than sadism is fear, and said soldiers may have been mostly afraid that the ambulances would also bring Hamas fighters. Hamas has abused ambulances and aid worker uniforms as a cover before.
(Example: Sydney Morning Herald, 26 January 2009 )

According to the Palestinian newspaper Al-Hayat Al-Jadida on May 20, 2009: "The [Palestinian] Health Ministry stated yesterday that Hamas militias had raided 46 ambulances, donated by Arab states during the recent aggression on the Gaza Strip, of the medical equipment that they contained... and used them as military vehicles to arrest civilians, after painting [the ambulances] black." (Source: PMW bulletin June 8 )

In some houses disgusting graffiti have been found, but that is hardly enough grounds to prove the motives of the army. Tens of thousands of IDF soldiers were sent into the Gaza Strip, so the graffiti cannot be considered very representative. The same goes for incidents of destroyed furniture, smeared photographs and so on. Next to stories - often second hand - of soldiers committing atrocities and misbehaving, the Israeli newspapers also brought many stories of soldiers behaving morally, of their dilemmas and their fears. The Amnesty report chose to completely ignore these. It does not put a face on the Israeli soldiers like it does on the Gazans. The soldiers are anonymous and cruel perpetrators, not people of flesh and blood who fear for their lives and are confronted with the moral dilemmas of warfare.

Omission of context

The report ignores the causes and the context of Operation Cast Lead, making Israel look as if it attacked and devastated the Gaza Strip without warning or reason. No attention is paid to the nature and the goals of the Hamas. You cannot understand the conflict if you are unaware of Hamas's goal to kill as many Jews as possible, to liberate 'all of Palestine' by force and found an Islamic state in which Jews will be Dhimmis at best. Article 7 of the Hamas charter cites a Hadith calling for the killing of the Jews before the Day of Judgment will come (See: MidEast Web, Hamas Charter ). Suicide terrorists and others who kill innocent Israeli civilians are hailed as martyrs and Palestinians are being incited against Jews and Israel. Young children are being taught that killing Jews and becoming martyrs is the highest achievable goal. They are dressed up in Hamas uniforms with rifles in their hands, sometimes wearing fake bomb belts. They receive combat training and parade with guns at an early age. Example: the Hamas children's TV show 'Tomorrow's Pioneers', see article and video.

Another example, from a child in Gaza:

Khaled, from A-Rimal [in Gaza], said: 'We the children, in small groups and in civilian clothes, are fulfilling missions of support for the [Hamas] Resistance fighters, by transmitting messages about the movements of the enemy forces, or by bringing them ammunition and food. We ourselves are not aware of the movements of the Resistance fighters. We see them in one place, they suddenly disappear, and then reappear somewhere else. They are like ghosts, it is very hard to find them or hurt them.'"

[Kul-Al-Arab (Israeli Arab weekly), January 9, 2009] (Source: PMW January 2009 )

A video that compiled some hate speech by Hamas leaders from 2007 and 2008 can be found on MEMRI:
"Hamas in their own voices"

Amnesty International accuses Palestinian terror groups of having no qualms about killing Israeli civilians and deliberately targeting civilians, but the truth is much worse. Hamas actually celebrates those casualties and aims at killing as many civilians as possible, as it openly proclaims. Hamas wants to scare all Jews away with rockets and terror attacks, and make all towns within Israel's borders ('settlements' in Hamas terminology) unlivable, as it has said repeatedly.

In the years before Operation Cast Lead nearly ten thousand rockets and mortar shells were fired on Israel, all potentially lethal and aimed at civilian targets. For Israel it had been enough. Hamas did not extend the cease-fire and had broken it many times in the previous month. It had used the time to smuggle vast amounts of weapons into Gaza, including Katyusha rockets with a range of over 40 kilometers. Israel feared that Hamas would soon be able to reach Tel Aviv if it did not act. Amnesty should have provided this context.

The report also neglects the role of Iran and the international setting. Hamas is being financed and trained by Iran and coordinates important decisions with Iran. Syria too supports Hamas and harbors its headquarters in Damascus. Israel was not merely fighting a small local movement.

Casualty Statistics

According to Amnesty International, aside from 5,000 people wounded, a total of 1,400 Palestinians were killed during Israel's operation, 900 of whom were civilians including 300 children. Lacking the time to investigate all reported deaths, Amnesty based its numbers mostly on Palestinian sources. From probing into several dozen cases which resulted in over 300 deaths, Amnesty concluded these figures are accurate. Most of the cases researched involved women and children casualties. In addition to about 300 children, Amnesty regards all 115 women, all 85 Palestinians over the age of 50, most of the 240 Hamas police officers killed and another 200 unarmed civilians as civilian casualties, adding up to about 900 civilian deaths.

On this basis it hard to tell how reliable Amnesty's figures are, but it seems casualties were declared civilians rather easily. Amnesty focused on the reported deaths of families and groups which appeared to stem from unjustified IDF attacks. It is not strange that this approach results in a higher number of civilian casualties.

Israeli Army figures are absent from the report. The IDF compiled detailed lists of identified casualties with a total of over 1,100, of whom 288 were identified as civilians (see: Haaretz article, 13 February 2009 ).

Also, Hamas censured the media for reporting about the death of Hamas fighters (see: IICC, 12 January 2009 ), so the number of reported deaths from Hamas' side may be lower than the real number of their casualties.

Amnesty's definition of a civilian is rather broad. For instance, police officers are part of the Hamas control apparatus in the Gaza Strip and its military infrastructure, and many were also involved in armed groups like the Al Qassam Brigades. The entire armed branch of Hamas, including the diverse security and guerrilla forces, should be considered a legitimate target in a war, as are its political control apparatus, propaganda institutions and infrastructure. Hamas had been warned for weeks that Israel would respond if it did not stop the rocket fire. It should have come as no surprise (as Amnesty wrongly claims), and therefore Israel puts full responsibility on Hamas.

Mildness Regarding Hamas

According to Amnesty, no evidence was found for Israeli allegations that Hamas used the civil population as human shields. Amnesty accuses Hamas of placing its military facilities too close to the civil population, but it also shows understanding for this:

Hamas and other armed groups also endangered Palestinian civilians by failing to take all feasible precautions in the conduct of their military activities, notably by firing rockets from residential areas and storing weapons, explosives and ammunition in them. They also mixed with the civilian population, although this would be difficult to avoid in the small and overcrowded Gaza Strip, and there is no evidence that they did so with the intent of shielding themselves. The extremely high population density in Gaza, a small territory and one of the most densely populated places in the world, entails additional challenges for all the parties involved in conflict or armed confrontations.

However, Amnesty International has seen no evidence that rockets were launched from residential houses or buildings while civilians were in these buildings.
In Gaza, Palestinian fighters, like Israel soldiers, engaged in armed confrontations around residential homes where civilians were present, endangering them. The locations of these confrontations were mostly determined by Israeli forces, who entered Gaza with tanks and armoured personnel carriers and took positions deep inside residential neighbourhoods.

Amnesty in fact accuses Israel of purposefully placing Palestinian civilians in danger by using their homes as fighting bases, while often not allowing the inhabitants to leave. It also accuses Israel of using Palestinians as human shields.

The report argues that, since Israel attacked, it chose the battle grounds and thereby it is the one deliberately placing the civilian population in danger. Amnesty ignores the fact that Hamas fired rockets on Israel from civilian areas on a daily basis, also before operation Cast Lead started.

According to Amnesty, military bases in both Israel and Gaza are often located in or near built-up areas, and thus it is hypocritical of Israel to blame this on Hamas. This argument is odd, because Amnesty acknowledges that Hamas rockets are too imprecise to distinguish between military and civilian targets. In fact Palestinian armed groups deliberately target civilians, like in Sderot, where there are no military targets. Also on the Palestinian side there is a much bigger chance that military targets will be hit by the IDF, making it all the more relevant to not have civilian areas close by.

The IDF and the MFA put a number of videos on YouTube, presented aerial photos and provided other evidence that Hamas does use mosques, schools and hospitals to hide its fighters and arms, and does use civilians as human shields. Hamas itself admits the latter, and these literal quotes can easily be found on the internet. See for example the video: "Human Shields - Hamas in Action".

If Amnesty is not convinced by these and other Israeli materials, it could have substantiated this, but it did not do so; it chose to ignore all this material and sufficed by stating the IDF and MFA refused to answer its questions. This may be true, but that does not give Amnesty justification to ignore all the relevant source material available.

At the end of this review is a list of links with short descriptions of the most relevant Israeli materials. Obviously these materials were compiled with a goal and cannot be considered objective, but that does not mean they are untrue, any more than the information provided by Palestinian sources. The images of weapons in mosques, civilians gathering on rooftops to prevent Israel from bombing the houses where terrorists live, the secondary explosions visible after bombing mosques, houses and other buildings, the photos and maps of rocket launchers and other military objectives near houses appear convincing and self-evident. Other accusations include Hamas misusing ambulances, stealing UNRWA humanitarian aid, using school yards and other civil buildings to fire rockets, forcing civilians who wanted to flee to stay in their houses, stopping ambulances, and claiming hospitals for its own wounded so that wounded civilians could not be treated. (Examples: Ynet News article, 6 January 2009.) For some of these accusations video evidence in available on the internet, such as the Al Arabiya newswoman reporting on rockets being fired from the direct vicinity of their building. (See video: "Hamas Fires from Gaza Foreign Press building".) Similar accusations were also voiced by the Palestinian Authority or by Gaza sources talking to newspaper journalists. (Example: Jerusalem Post article, 22 January 2009.) Amnesty should have checked these claims for reliability, by tracking their sources and by talking to these journalists and to the PA.

Amnesty also totally ignores the misuse of children by Hamas. Israel claims that Hamas frequently used children for dangerous jobs during Cast Lead, like collecting guns from killed Hamas fighters, standing guard and transporting weapons and explosives. This would seem in line with the Hamas indoctrination of children, see above "Omission of context". Amnesty should have investigated these claims. It should not have sufficed with talking to some witnesses who said that they did not see anything.

Fighting against a guerrilla force in a densely populated area

As quoted above, Amnesty states that the small size and dense population of the Gaza Strip is a challenge to all parties involved in the fighting and makes it hard to avoid civilian casualties. It does not address the dilemma of fighting against a guerrilla army that deliberately makes no distinction between civilians and warriors, and which has a certain interest in accidental civilian casualties to undermine international support for Israel. Israeli intelligence reported that the Hamas leadership was hiding beneath the Shiva hospital. If Israel were indeed as cruel and reckless as Amnesty portrays it, and if Hamas had a desire to avoid civilian deaths, they would not hide there. Apart from storing weapons in houses and mosques, Hamas also used a wide system of tunnels connecting many houses and other buildings, turning them into battle grounds and thus military targets.

The report claims that Israel did not distinguish between military and civilian targets, and used a definition of military target so broad that it covered everything. Amnesty argues that there is a clear distinction between the Hamas military branch and its government structure and its other branches. Even Hamas leaders not directly involved in the hostilities are no legitimate target, according to Amnesty. This way a guerrilla war is unwinnable, for 'civilian' institutes are also being incorporated in the battle, and many police officers are doubling as Al Qassam Brigade activists at night. The Al Qassam fighters hid themselves and were not usually visible on the battle field as a regular army would. Coming out briefly to set a trap or shoot at soldiers, they were not necessarily identifiable as combatants.

Amnesty International neglects to mention that one of the reasons Israel suffered so few casualties was that Israel protects its civilian population better, requires them to build safe rooms, provides warning systems for them, and orders children to stay home during attacks. Some of these measures are mentioned, but not as an explanation for the low casualty rate on the Israeli side.

Amnesty again switches cause and result:

During Operation “Cast Lead”, Gaza’s population of 1.5 million, most of them children, could neither leave Gaza – as the borders were sealed – nor find shelter where they could be guaranteed safety. There are no bomb shelters and none can be built, as cement and other construction materials are on the list of goods which Israel does not allow into Gaza.
Although tens of thousands of people did leave their homes, most could not do so because they had nowhere to go. Others stayed to protect their property, fearing that if they left their homes empty they would soon be destroyed by the army or used by armed militants and then destroyed by the army.

Not Hamas but Israel is blamed for the lack of safety rooms in the Gaza strip. The fact that Hamas was able to provide for underground bunkers for itself is conveniently being ignored. It is true that Israel does not let building materials in, but this is because Hamas uses them for military purposes. Amnesty persistently puts responsibility for the wellbeing of Gaza's population almost exclusively on Israel, despite the fact that Hamas has been the effective government since June 2007. Thus Amnesty blames Israel for the population's not being able to leave the strip, making the warning leaflets and phone calls ahead of bombings almost useless. At the same time several witnesses declared that they had not been warned and would have taken refuge if they had been. This suggests that the warnings did serve a purpose. Amnesty tries hard to downplay their usefulness, and then goes ahead and blames Israel for not having warned the civilians in Gaza:

In a BBC interview, Israel’s Interior Minister, Meir Sheetrit, stated that: “the army called 250,000 telephone calls to the people to leave their houses”. There are barely 250,000 households in Gaza. If indeed the Israeli army called that many families to tell them to leave their homes, this would mean that virtually every family was told to do so.

Radio announcements, which the Israeli authorities say were broadcast on Palestinian radio stations that had been pirated by the Israeli army on 3 January, stated “For your own safety, you are required to leave your homes immediately and move to the city centres” and were addressed to “all residents of the area”. Leaflets dropped by aircraft reached most areas of Gaza, and radio announcements were similarly not limited to specific areas.
Such random telephone calls, leaflets and radio announcements did not constitute effective advance warning. They were too general and reached residents all over Gaza.

Obviously there is nothing like a perfect warning in a hostile area during a war. As shown above, Israel went to great lengths to warn as many people as possible. The remark about the 250,000 phone calls is rather childish, considering that most youths have cell phones. To seriously make this point, Amnesty would have to provide numbers of households and phone connections including cell phones, and deduct what percentage of the population has received phone warnings. Israel puts itself at a disadvantage by these warnings. A year earlier Hamas leader Al Ja'abeer misused a similar phone warning by gathering dozens of Palestinians on his rooftop to act as human shields. It is notable that Amnesty chooses to ignore this side.

The Amnesty report similarly discredits the daily three-hour ceasefire Israel introduced on January 7. Hamas abused this time repeatedly to fire mortars on Israel, but Amnesty only accuses Israel of doing too little to give the civilian population a chance to gather supplies or find a safe haven. Of course it is insufficient, nothing suffices in a war and every bomb is one too many, especially in densely populated areas. Still, in what other war did one party install a daily ceasefire or make such an effort to send warnings before bombing, in order to spare the other side's civilian population?

The UNRWA School in Jabalya

It is beyond the scope of this article to address the many examples and accusations in the Amnesty report. The report cites many cases of tragic and unnecessary civilian deaths and ruthless behavior by soldiers, and no doubt such cases have occurred and they cannot be excused. The problem is with the conclusions the investigators derive from them, and in the selective use of sources and information.

One case in particular drew a lot of media attention and has been the subject of much confusion and controversy: the alleged shelling of the UNRWA school in Jabalya on January 6. Initial reports suggested that the IDF had shelled the school where Palestinians had taken refuge, killing and wounding many civilians. IDF spokesmen then asserted that it had merely returned fire after being fired at from the school. It later became clear that the school itself had not been targeted or fired from, and the casualties (less than initially reported) had all been outside the school.

Amnesty blames this confusion entirely on Israel, which gave several different accounts and incorrect information about the incident. In fact the media, the IDF as well as the UN all gave incorrect information about the shelling. After the IDF had been accused, also by the UN, of shelling the school, the IDF stated that its troops had been fired at by Hamas from inside the school. The unjust claim that the school had been shelled came from Hamas initially, was repeated and not clearly contradicted by the UN and spread through the media. It is not correct but not surprising either that Israel initially countered the accusation by blaming Hamas for firing from the school first, as public opinion and international condemnation directly impacted the course of the war and Israel's ability to advance and win the war.

An article in the Globe and Mail stated:

The UN's Office for the Co-ordination of Humanitarian Affairs got the location right, for a short while. Its daily bulletin cited "early reports" that "three artillery shells landed outside the UNRWA Jabalia Prep. C Girls School ..." However, its more comprehensive weekly report, published three days later, stated that "Israeli shelling directly hit two UNRWA schools ..." including the one at issue.

Such official wording helps explain the widespread news reports of the deaths in the school, but not why the UN agencies allowed the misconception to linger.

John Ging, Gaza's UNRWA coordinator, unjustly claimed that the UN never accused Israel of shelling the school, and the UN failed to contradict the general media version blaming Israel. Amnesty echoes the UNRWA position uncritically and puts all blame for disinformation on Israel.

According to Amnesty a lot is wrong with Israel's own investigation into the incident:

Later, the Israeli army offered several different accounts of the incident, dropping the claim that rockets had been fired from inside the school. On 11 January the Israeli daily Haaretz quoted a “preliminary investigation” conducted by the Paratrooper Brigade, whose troops were responsible for the area. According to this, militants had launched a Qassam rocket into Israel from within a yard adjacent to the courtyard of the UNRWA school and Israeli forces targeted them with mortar shells equipped with a Global Positioning System (GPS) which has an error margin of 30m; one of the three rounds fired by the Paratrooper Brigade slammed into the UNRWA building, while the other two rounds hit the adjacent yard and killed Hamas gunmen “who probably belonged to the squad that fired the rockets”.

However, this version too was inaccurate, as there had been no Palestinian fire from a yard adjacent to the school, none of the Israeli mortars had hit the UNRWA school, and more than three mortars were fired into the area. When Amnesty International visited the area, the organization’s munitions expert identified at least four mortar strikes in the street outside the school with additional strikes nearby.

In its media briefing of 22 April, the Israeli army offered yet another account, that “Hamas operatives used a site located only 80 meters away from the school to launch mortar shells at IDF forces”, that soldiers responded with “minimal and proportionate retaliatory fire, using the most precise weapons available to them” and that “a cell of five terror operatives and seven civilians outside the school grounds were hit”. However, the army has not provided the names of the 12 people (the five gunmen and seven civilians) it says were the only casualties of the attack.

This version, too, contains a number of inaccuracies and raises more questions than it answers. Firstly, contrary to the army’s assertion that a total of 12 people were hit, at least 30 people, most of them civilians, were killed and dozens of others were injured. Secondly, mortars are notoriously imprecise. They offer a very low probability of striking a precise target, carry a high risk of off-target strikes and should never be used in a densely populated area. Thirdly, by using mortars in such a crowded area – much more crowded than usual because of the large number of civilians who had taken refuge at the UNRWA school – Israeli forces would have known that they were likely to kill and maim civilians.

Most notable is Amnesty's denial that Hamas fired from the vicinity of the UNRWA school, ignoring a number of eye-witness accounts that were published in the media.

On January 6 or 7 anonymous witnesses had told AP:

"Two residents of the area near UN school that was shelled by the IDF on Tuesday said that they had seen a small group of terrorists firing mortar rounds from a street close to the school. The two spoke with The Associated Press by telephone on condition of anonymity for fear of reprisal."
(Source: Jerusalem Post article, 6/7 January 2009.)

Some weeks later the New York Times reported:

"Witnesses, including Hanan Abu Khajib, 39, said that Hamas fired just outside the school compound, probably from the secluded courtyard of a house across the street, 25 yards from the school. Israeli return fire, some minutes later, also landed outside the school, along the southwest wall, killing two Hamas fighters. Nearly all the casualties were in the street outside the compound, with only three people wounded from shrapnel inside the walls."
(Source: New York Times article, 17 January 2009.)

A media watchdog has collected several eye-witness accounts from newspapers stating the same, see: CAMERA, 21 January 2009.

Amnesty also contradicts Israeli statements that only three rounds of mortars were fired by the IDF, but the Globe and Mail cited a witness (a shopkeeper in the same street) who confirmed that only three rounds were fired. The UN is also quoted in the Globe and Mail as mentioning three rounds fired. If Amnesty thinks this is incorrect, it should also criticize the UN for incorrect statements and acknowledge that Palestinian witness accounts are not always accurate.

It is remarkable that Amnesty thoroughly criticizes Israeli accounts and investigations, but remains silent over misinformation provided by other parties like the UN, Hamas and Palestinian witnesses. Amnesty's conviction that Hamas did not fire from the vicinity of the UNRWA school is very peculiar.

International Law, Distinction and Proportionality

Amnesty International states that Israel neglected the rules of proportionality and distinction in international humanitarian law, and that the goals of military actions were not in proportion to the expected damage or risks of civilian deaths. Israel is also being accused of making little distinction between military and civilian targets. The first accusation is almost impossible to check in retrospect, certainly not without knowing the Israeli strategy and military considerations, which could only be determined by consulting Israeli military leaders.

By ignoring the causes of the war, the fact that Hamas is steadily building its military capacity and becoming a growing threat to Israeli civilians, and that Hamas is supported and sponsored by Iran, Amnesty showed that it disregards the Israeli position and military interests, and did not consider them in its judgment of the way the military campaign was conducted. The charge that Israel did not make a distinction between military and civilian targets is contradicted by the diverse Israeli efforts to spare civilian lives. Many more civilians would have been killed in the densely populated Gaza Strip if Israel had not made these efforts to warn civilians, to use expensive high precision weapons, to gather intelligence on Hamas targets months ahead of operation Cast Lead, and to initiate daily ceasefires.

Although Amnesty implies that the IDF deliberately brought death and destruction upon Gaza to avenge itself on the civilian population, Israel knows full well that a high number of civilian casualties rapidly increases international - and internal - pressure to prematurely end its campaign, and that its maneuver space is very limited. Israel has no choice but to weigh international opinion and support because of the constant international and media focus on its actions. The obvious military goal for Cast Lead was to strike a major blow to the Hamas, not to the civilian population of Gaza. For this Israel counted on international support and understanding.

Compare this to the behavior of Sri Lanka and Pakistan, whose armies recently engaged in similarly bloody military campaigns against guerilla fighters and terrorists. No temporary ceasefires, no warning phone calls or leaflets, no heart-wrenching broadcasts from hospitals, but tens or hundreds of thousands refugees who received little media attention and who had no UNRWA support.

Amnesty International's conclusion that Israel systematically neglected the rules of proportionality and distinction must be considered one-sided and subjective. Again, no Israeli sources were consulted.

Is Israel still Occupying the Gaza Strip?

According to Amnesty International Israel is still occupying the Gaza Strip, because it controls the borders, airspace and territorial waters. Earlier Israeli incursions into Gaza are also cited as evidence that Israel can still be considered the occupying power. Nevertheless Amnesty in its report quotes the definition of occupied territory in international law:

Article 42 of the Hague Regulations defines occupation: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” In such situations, the occupying power “shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” (Hague Regulations, Article 43)

Then the report extensively lists the obligations of an occupying power. However, how can Israel keep order and provide for enough food for the population, when Hamas de facto controls the area, runs its government facilities and distributes the goods?

Even during Cast Lead the Israeli army controlled no more than a part of the Gaza Strip and cannot really be considered its occupying power. Conquering the whole strip was considered by the army but never implemented, in part because of the expected high death toll. Yet Amnesty argues that the 2005 disengagement was merely a 'redeployment' of the army, and Israel should still be considered its occupying power. This assertion is in contradiction with the Hague Convention cited above, and it raises questions about Amnesty's impartiality and credibility on this subject. The fact that the UN also still considers Gaza occupied by Israel does not excuse this, as the UN's bias against Israel is a matter of record.

True, Israel controls most of the borders (one is controlled by Egypt) and the airspace above Gaza, but that constitutes a (partial) siege or blockade, not an occupation. Egypt keeps its border closed mostly, due to an arrangement involving Israel, the EU and the PA, but it has incidentally opened the Rafah crossing for traffic against Israel's will and against the agreed upon arrangements, as in January 2008. There is also the smuggling of weapons and goods through an extensive system of tunnels under the Egyptian border and over sea.

Defining the Gaza Strip as occupied by Israel enables Amnesty to condemn Israel for failing to take care for the well being of the population in the Gaza Strip, while the Strip is in fact governed by Hamas, Israel's sworn enemy.

The actual status of the Gaza Strip is unclear and is assessed variously by experts in international law. It is not a sovereign state and it depends on Israel in several respects, but Israel does not control the territory itself and is at war with the Gaza regime. The absurd situation thus exists that Israel is delivering water, energy and humanitarian aid to an area the regime of which it tries to undermine by blocking the import of materials it needs to govern and develop this area. The inhabitants of Gaza are caught in between the Hamas regime which deliberately wages a war against a far mightier neighboring country whose land it claims, and Israel's measures to weaken and undermine this regime. A regime that, as a matter of fact, was chosen by the population in fairly democratic elections. Amnesty reduces this bizarre and complex situation to a simple story in which Israel carries all responsibilities.

Recommendations

Amnesty makes a number of recommendations in its report, such as a weapons embargo against both Israel and Hamas, until they abide what are considered the standards of international law. This would prohibit any country from sending weapons, spare parts or military equipment to Israel or Hamas. To Hamas this would be hardly a problem, as it gets all its weapons through smuggling or fabrication from primary materials, while Israel has an official defense industry which cooperates with a number of countries and has business contracts with them, including the USA and the EU, India, Russia, Turkey and other countries. Amnesty calls on all these countries to completely suspend their arms dealings with Israel and break all current contracts. Meanwhile Israel's neighbors may proceed in obtaining weapons, and the Iranian nuclear development program is not mentioned in the report. This recommendation would be unrealistic and unjust, and if all countries were to follow this recommendation Israel's existence might be at risk.

Other recommendations in the report include a proposal that the international community prosecute those suspected of having committed war crimes during operation Cast Lead, e.g. by bringing them before the International Criminal Court, and to give all possible assistance to the UN investigation committee led by Richard Goldstone.

Israel is called upon to immediately end the blockade of Gaza and let all goods pass the borders, to prosecute the ones responsible for war crimes during Cast Lead, pay damages to the victims, and change laws and rules concerning the army in a way that such breaches of international law can no longer occur.

Hamas for its part should stop with shelling civilians in Israel, stop other armed groups from shelling, and pay damages to the victims. Hamas too should prosecute the ones responsible for war crimes.

A complete end of the blockade will lead to more arms smuggling by Hamas and to terror attacks within Israel, and therefore is unrealistic. Questions can be asked regarding the limiting of imports of goods like toys, luxury food and a number of other things which cannot be used for weapons production. In exchange for an end to these restrictions, at least soldier Gilad Shalit should be released, but the report does not mention him aside from one footnote.

Conclusions

Amnesty International paints a picture of a sadistic Israeli army that purposefully wreaked havoc to teach the Gaza population a lesson. Palestinian and some Israeli sources are selectively used and others ignored, even when freely available on the internet. Only selective quotes are given from Israeli soldiers and sources which put them in a malicious light. Soldiers are quoted who said they were ordered to fight aggressively and shoot first, ask questions later, and some disgusting graffiti which soldiers left behind in Palestinian homes are repeatedly cited. These impressions are contrasted with very tragic stories of Palestinian victims and witnesses. There are many stories and quotes from Israeli soldiers to be found on the Internet, which paint a much more diverse picture, telling about doing everything possible to avoid harming innocents. In fact 120 IDF officers had been given the task of coordinating humanitarian aid and helping Gazan civilians in need (See: Haaretz article, 15 January 2009). For an account by an Israeli reporter accompanying the IDF in Gaza, see: Ynet News article, 9 January 2009, and for stories by soldiers themselves see: "Soldiers Speak Out".

The Amnesty report however leaves no room for nuance and seems to put the blame on Israel beforehand. Cited official Israeli statements are immediately contradicted in harsh terms and dismissed as unreliable; statements made by Gazans the investigators spoke with and reports from Palestinian human rights groups, on the other hand, are believed almost without question. However Amnesty ignores Palestinian eye-witness accounts from the media, footage and photos on the Internet about how Hamas used the population as human shields, misused ambulances, hid weapons and explosives in houses, mosques and public buildings, and enrolled children in its struggle. It also ignores statements by Hamas fighters and leaders about its goals and strategy, for instance bragging about crushing the 'Zionist enemy' or boasting about using human shields.

The report selects only those sources which support its main thesis that Israel is to blame for a large scale destruction and killing of innocents which serves no justifiable military goal.

Meanwhile Amnesty seems mild in its judgment of the Hamas, and claims lack of evidence for Hamas deliberately using civilians as human shields. The report shows little understanding for the difficulties in fighting a guerrilla army that is hardly visible and can be everywhere and nowhere. War in a densely populated area is characterized as a challenge for both parties, and Israel is basically blamed for starting it and picking this dangerous battleground. The motives and tactics of Hamas and the reasons for the war remain unmentioned.
(For the problems with the proportionality rule see also: "The End of Proportionality" by J.F. Keiler.)

Amnesty International proposes requirements for Israeli battle conduct which make it close to impossible to win a war against the Hamas. Amnesty demands a rigid interpretation of international law regarding Israel and considers most Hamas targets to be not legitimate targets. By identifying Israel as occupying power of the Gaza Strip, the main responsibility for the inhabitants is laid at Israel's doorstep. Israeli measures to spare the civil population are easily discredited as insufficient and ineffective. Hamas's misuse of these measures is disregarded.

The Amnesty report therefore is biased and selective. It seems unlikely that Israeli co-operation with the investigators would have resulted in a substantially more balanced report.

Amnesty's recommendations regarding Hamas are not likely to have any impact, as Hamas and its sponsors already refuse to meet the international demands placed on it, such as recognizing Israel and ending terrorism, and it receives its weaponry through illegal smuggling and self fabrication.

Israel on the other hand can be seriously damaged by these demands, as has already happened with Great Brittan suspending the delivery of spare parts for Israeli marine vessels. (See: Haaretz article, 13 July 2009.)

Israel faces possible diplomatic, political, economic and security repercussions from a proposed arms embargo, as its military and economy to a certain extend are dependant on trade and imports, and it has other enemies in the region it needs to defend itself against, like Hezbollah, Syria and Iran.

To lift the Gaza blockade and pay reparations, as Amnesty recommends, it would have to be established that the blockade and certain actions during operation Cast Lead were illegitimate, issues that the international community - and certainly Israel - do not agree on. (There was an agreement regarding the border crossings between Israel, the PA and Egypt, that was broken when Hamas took power illegally). Even then, there would first have to be a legitimate regime in Gaza to receive these reparations.

A further recommendation is for Israel to adjust its military rules and combat instructions so that incidents like the ones described in the report can no longer happen, and both parties and the international community should put perpetrators of war crimes on trail. While Israeli military policies and practices should be evaluated carefully and criminal conduct needs to be punished, it is not the place of the international community to pass such judgment where a legitimate, sovereign and democratic state is concerned.

It is unfortunate that an organization as renowned as Amnesty International, which engages in defending human rights worldwide, publishes a report as biased and unfair as the one discussed here. Evidently awful things happened in Gaza, and Israeli forces did not always observe the internationally established rules of combat. The scale on which this occurred, the question of Israel's motives, and the role of Hamas are issues that have not been properly addressed by Amnesty International.

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Appendix - quotes and links

Proof of using civilians as human shields

In a publication from the Intelligence and Terrorism Information Center of January 28, several witnesses are quoted from a number of newspaper articles, of Hamas misusing ambulances, like an ambulance driver telling how he was forced by Hamas to transport combatants. Other witnesses say Hamas used rooftops of houses as observation posts or to launch rockets, and Hamas fighters were hiding in hospitals.
http://israel-palestijnen.blogspot.com/2009/02/gazanen-vertellen-hoe-hamas-hen-als.html

An early January publication by the Intelligence and Terrorism Information Center ("Hamas Exploitation of Civilians as Human Shields") has several quotes and photographs of the use of civilians as human shields, use of children in combat situations, rocket launching installations on rooftops or near houses, etcetera. Below are some quotes:

Hamas administration prime minister Ismail Haniyeh encourages the use of the tactic. In an interview with Al-Jazeera TV he boasted of the “firm stance” of the Palestinians, saying that Israel threatens to bomb houses [of Palestinian terrorists] but nevertheless, hundreds and thousands of Palestinians go out “in the middle of the night” and go up onto the roofs of those houses. (Al-Jazeera TV, February 29, 2008)

In an interview, the late Sheikh Nizar Rayyan, one of the chief proponents of the human shield tactic, boasted that men and women would protect the “Jihad fighters.” He also said that Sderot was a Palestinian town and that as its residents were fleeing [at the time of the interview] so would the residents of Ashqelon flee. (PalMedia website, November 20, 2007)
http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/pdf/hamas_e028.pdf

Films and other evidence

http://www.youtube.com/watch?v=Bt_Y_3LKCGA Hamas Fires from Gaza Foreign Press Building - journalist from Al Arabiya about rocket fired from directly beneath their office

http://switch3.castup.net/cunet/gm.asp?ai=58&ar=HamasExploitationofCiviliansV&ak=null Hamas use of its own population as human shields. Weapons in houses and mosques, calls for civilians to protect their house, quotes from Hamas leader about this, use of children. Rockets fired from school.

http://www.youtube.com/watch?v=CWIDZ7Jpdqg Hamas leader on the use of women and children as human shields.

http://www.youtube.com/watch?v=S2G1TZKerTo on the use of civilians as human shields (on rooftop).

http://switch3.castup.net/cunet/gm.asp?ai=58&ar=StandingOnRoof-V&ak=null as above

http://switch3.castup.net/cunet/gm.asp?ai=58&ar=MortarFromSchool-V&ak=null on Hamas firing mortars near UNRWA school (vague image).

http://www.youtube.com/watch?v=eTGbP55HGi8 on indoctrinating children and using them as human shields.

http://switch3.castup.net/cunet/gm.asp?ClipMediaID=3271371&ak=null Hamas fires rockets/mortars from schoolyard (vague image).

http://switch3.castup.net/cunet/gm.asp?ClipMediaID=3276455&ak=null zoo and school booby trapped.

http://switch3.castup.net/cunet/gm.asp?ClipMediaID=3313707&ak=null Hamas fires rocket from in between 2 schools (vague image).

http://switch3.castup.net/cunet/gm.asp?ai=58&ar=Destruction in gazaV&ak=null Destruction in Gaza - Underground Hamas rocket launcher behind a civilian home, aimed at Ashkelon

On secondary explosions and Hamas map of facilities near civilian places

http://www.youtube.com/watch?v=RI1q3etFX2k&NR=1 Hamas map

http://www.youtube.com/watch?v=hRQa5-gmqys Hamas Terrorist Tactics in the Gaza Strip - with 3 D presentation of how Hamas fights in civilian area.

http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/pdf/hamas_e049.pdf images of how close civilian buildings are to military bases and rocket launch installations.

http://www.youtube.com/watch?v=kBYtij4Q7sE&NR=1 Human Shields - Hamas in action - Palestinians used as human shields to protect house of Al- Ja'abeer

http://www.youtube.com/watch?v=RTu-AUE9ycs&feature=related Hamas admits it uses human shields - 'we desire death like you desire life'.

http://www.jpost.com/servlet/Satellite?cid=1232292930390&pagename=JPArticle%2FShowFull on accusation that Hamas stole humanitarian aid goods and sold them. PA says it receives hundreds of complaints.

http://www.youtube.com/watch?v=eTGbP55HGi8 Children of Hamas