The purpose of this in-depth and extremely detailed report is to expose the truth of last summer’s events and how a democracy that is attacked fights terrorism according to the rules of international law.
On Sunday, June 14, 2015, Prime Minister Benjamin Netanyahu was presented with the recently completed special report, "The 2014 Gaza Conflict: Factual and Legal Aspects," prepared by top experts in Israel’s Foreign Ministry, Ministry of Justice, National Security Council and the IDF.
The purpose of this in-depth and extremely detailed report is to expose the truth of last summer’s events and how a democracy that is attacked fights terrorism according to the rules of international law – as both the facts and the legal analyses of the 2014 Gaza conflict have been distorted, most often to Israel’s detriment.
As was done in the previous conflicts, and along with the commitment of the government of Israel to transparency, this report has been compiled in order to assist with reaching an informed understanding of the reasons for the 2014 Gaza conflict and the actions of the parties thereto. In doing so, the report constitutes an important document for those wishing to know more about the hostilities. It also constitutes required reading for those who wish to better understand the challenges facing a state committed to the rule of law, when forced to conduct military operations against a non-state actor that repeatedly violated and manipulated the laws of armed conflict committing endless war crimes and crimes against humanity against both Israeli and Palestinian civilians.
The report includes Israel’s legal positions with regards to certain aspects of the hostilities and addresses some of the most complex and unique challenges in contemporary armed conflicts, which are characterized by the asymmetry between the parties’ commitment to the Law of Armed Conflict.
The full report is available online at http://protectiveedge.gov.il
Israel’s Commitment to International Law
The State of Israel is committed to the rules of international law even as it fights against terrorist organizations that deliberately violate these rules. Israel’s obligation stems from the fact that Israel is a democracy and its own moral values demand that it operates in accordance with international law.
As Israel’s former President of its Supreme Court has noted, a democracy must fight terrorism with one hand behind its back. Those who distort the facts and legal basis of Israel’s conflict with the terrorist organizations that target its civilians are trying to tie both hands behind its back, denying its legitimate right of self-defense.
The report demonstrates that the actions carried out by Israel during the conflict were in accordance with international law, in particular with the principle of proportionality. Proportionality is a specific legal concept that categorically does not mean a comparison of the total casualties on each side. Rather, it judges individual military strikes by examining whether the expected civilian casualties in a specific incident are excessive in comparison to the anticipated military advantage. This evaluation is not made according to the results of the attack, but according to the judgement of a reasonable military commander taken with the information available at the time. Moreover, balancing the expected casualties with the expected military advantage does not require perfect accuracy in either in predicting the outcome or in carrying out the strike.
Israel’s report reveals for the first time insights of the IDF’s methods of operation, including with regard to its targeting process. For example, on how the IDF devoted extraordinary resources to warn Palestinian civilians of danger and provide information on ways to avoid threats to their safety.
The report further details its independent and professional mechanisms to investigate any possible deviations from international norms. Israel is fully committed to investigating all alleged violations of the Law of Armed Conflict. To accomplish this, Israel has introduced new and innovative investigatory mechanisms in addition to its already existing ones. Before hostilities had even ended last summer, the IDF established a Mechanism for Fact-Finding Assessments to assist the Military Attorney General (MAG) in deciding whether to open criminal investigations. The MAG has professional independence within the military system and his legal judgements are subject to review and challenge by Israel’s judicial system and its Attorney General. The use of an internal legal system, to one degree or another, in the investigation of ostensive violations of the rules of war is common practice in many advanced democracies.
Hamas’ War Crimes and Crimes against Humanity
The report not only examines Israel’s actions, but the conduct of Hamas during the hostilities and leading up to them. Hamas committed war crimes and crimes against humanity both by deliberately targeting Israeli civilians and by embedding its military capabilities in the heart of Gaza’s population, exposing them to harm on purpose.
The report publishes for the first time Hamas doctrine and training materials recovered in the Gaza Strip. It clearly demonstrates that both Hamas’ strategy and modus operandi rely on its willful disregard of the principle of distinction, which is the most fundamental principle of the law of armed conflict and a primary tool in the prevention of civilian casualties.
Hamas’ calculated disregard for the lives of Palestinian civilians was also exposed by its systematic rejection of multiple cease-fire proposals and violations of humanitarian pauses. Most significant of these is its rejection of the 15 July 2014 Egyptian-proposed ceasefire, which Israel accepted. Had Hamas agreed to the proposal – as Israel did – much suffering and perhaps 90% of the subsequent Palestinian casualties in Gaza would not have occurred.
The report reveals that at least 44% (and potentially as many as 66%) of fatalities in Gaza were terrorist militants. It exposes Hamas’s systematic attempts to manipulate the data and to present all fatalities as ‘civilian’. Furthermore, it analyses how the overall figures of fatalities occurring during the hostilities, on their own, impact upon the legal assessment of the IDF’s actions during the 2014 Gaza Conflict, and that such statistics cannot be used to base a legal claim of "disproportionate" use of force by the IDF.
Outline of the Report
The report presents in its seven chapters:
• The nature of and the background to the summer 2014 Hamas conflict (Operation Protective Edge).
• The goals of Operation Protective Edge and its phases.
• The war crimes that were perpetrated by Hamas and the other terrorist organizations during the operation.
• Terrorist threats to Israel’s citizens and the Israel’s efforts to defend its citizens.
• The IDF’s conduct during the operation with emphasis on the various steps that were taken in accordance with the rules of international law, the steps that were taken to minimize injury to the civilian population.
• The system that has been in place since the end of the operation to inquire into and investigate claims regarding seeming violations of the laws of war by IDF soldiers during the conflict.
• The report contains also a separate annex, which addresses one of the most contentious issues of the 2014 Gaza Conflict – statistics regarding the number of fatalities occurred.
The UN Human Rights Council (UNHRC) is supposed to release a report on the hostilities by the end of this month. This is the product of a mandate given by the UNHRC that concluded from the start what the commission would report before any investigation had even begun. Thus, the UNHRC and the mandate of the commission it appointed are highly-biased.